Jones v. City of Cincinnati, No. 06-4528.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: Oberdorfer
• Citation: 521 F.3d 555
• Decision Date: 04 April 2008
• Docket Number: No. 06-4528.
• Parties: Bessie JONES, Administratrix of the Estate of Nathaniel Jeffrey Jones, Deceased, et al., Plaintiffs-Appellees, v. CITY OF CINCINNATI, et al., Defendants-Appellants.

521 F.3d 555 Bessie JONES, Administratrix of the Estate of Nathaniel Jeffrey Jones, Deceased, et al., Plaintiffs-Appellees,
v.
CITY OF CINCINNATI, et al., Defendants-Appellants. No. 06-4528. United States Court of Appeals, Sixth Circuit. Argued: February 5, 2008. Decided and Filed: April 4, 2008.

[521 F.3d 557]

ARGUED: Richard Ganulin, City Solicitor's Office for the City of Cincinnati, Cincinnati, Ohio, for Appellants. Eric C. Deters, Eric C. Deters & Associates, P.S.C., Independence, Kentucky, for Appellees. ON BRIEF: Richard Ganulin, City Solicitor's Office for the City of Cincinnati, Cincinnati, Ohio, for Appellants. Eric C. Deters, Eric C. Deters & Associates, P.S.C., Independence, Kentucky, for Appellees.

Before: MARTIN and SUTTON, Circuit Judges; OBERDORFER, District Judge.^*

OPINION

OBERDORFER, District Judge.

Defendants appeal the district court's partial denial of their motion to dismiss Fourth and Fourteenth Amendment claims based on 42 U.S.C. § 1983 brought against them by representatives and relatives of Nathaniel Jones, a 350-pound 41-year old African American who died after Cincinnati police officers subdued and placed him under arrest. Because the defendants are not entitled to qualified immunity on the basis of the facts alleged in the complaint, we affirm.

I.

Because this is an appeal from the denial of a Rule 12(b)(6) motion to dismiss, the following account accepts as true the facts alleged in the complaint — in this case, the second amended complaint. On Sunday, November 30, 2003, during the early morning, Jones was visiting friends at a White Castle restaurant in Cincinnati. He became ill and fell unconscious in the parking lot. A White Castle employee called 911 to summon medical assistance. Several firefighters, who are defendants in this suit but not a subject of this appeal, arrived and refused to treat Jones. Jones woke up and began walking and dancing; he caused no damage to any persons or

521 F.3d 558

property. The firefighters summoned the police and described Jones as a nuisance.

Officers James Pike and Baron Osterman arrived in response to the firefighters' summons. Shortly thereafter, the firefighters left the scene. At about, or shortly after, the time of their departure, Pike called dispatch to request a Medical Help Response Team and a supervisor with a taser. Pike and Osterman then approached Jones and tried to subdue him, even though Jones presented no danger to any property or persons. Pike and Osterman began to savagely beat Jones with their batons. Officers Guy Abrams, Joehonny Reese, and Thomas Slade arrived and began using their batons on Jones. The officers struck Jones at least 33 times, giving him no chance to comply with orders to put his hands behind his back. They continued to strike Jones while he was on his hands and knees.

Officers Pike and Slade sprayed chemical irritant in Jones's face while he was prone in handcuffs and while officers Pike, Osterman, Abrams, Reese, Slade, and Jay Johnstone used their combined weight to hold him down. Their weight restricted the movement of Jones's diaphragm and made it difficult for him to breathe. Jones struggled to twist his body under the officers in an attempt to breathe. In response, the officers pressed down on him even harder. Once they had subdued Jones, they left him face down on the ground handcuffed behind his back for a prolonged period of time. During this time, Jones stopped breathing; all the officers knew it. Reese saw Jones changing color. Johnstone, Reese, and Abrams knew that a suspect lying face down risked positional asphyxia (difficulty breathing due to one's posture or position). None of the officers provided mouth-to-mouth resuscitation or other respiratory aid. Instead, they stood there and discussed the absence of fire personnel.

Police Sergeant James Waites arrived while Jones was still lying face down. The sergeant was aware of the risks of positional asphyxia but did not order Jones rolled over or undertake to do so himself. Two other police sergeants, Jeffrey Battison and Leroy Brazile, arrived on the scene. All three sergeants noticed Jones was not breathing. None of the sergeants provided any medical aid and each knew that no other officers were providing aid. Waites did not order officers to perform mouth-to-mouth because he saw that Jones was frothing at the mouth and they had no protective mouth barrier. Instead, Battison summoned emergency medical services. The officers all knew that it was impossible to render proper medical aid while Jones remained in handcuffs. Their failure to remove the handcuffs delayed the administration of aid and hastened Jones's death.

Finally, plaintiffs allege that the City, as well as Chief of Police Thomas Streicher and now former City Manager Valerie Lemmie as policymakers for the City, are responsible for the officers' actions because the policymakers allowed officers to use excessive force against citizens without facing discipline, failed to provide adequate training to the officers or promulgate adequate policies addressing the use of force or the dangers of positional asphyxia, failed to discipline officers whose conduct put individuals at risk of positional asphyxia, and failed to provide officers with equipment — such as mouth barriers for mouth-to-mouth resuscitation — to aid those suffering from positional asphyxia.

Jones' grandmother and administratrix of his estate and Jones' two minor sons filed a complaint in the United States District Court for the Southern District of Ohio against sixteen defendants: the City

521 F.3d 559

of Cincinnati, Cincinnati Chief of Police Streicher, Cincinnati Fire Chief Robert Wright, now former City Manager Lemmie, the six police officers present during the struggle with Jones (Abrams, Pike, Reese, Johnstone, Osterman, and Slade), three police sergeants who arrived at the scene after the struggle (Brazile, Waites, and Battison), and three Cincinnati firefighters (Gregory Adams, Tyrone Harrison, and Brian Otten). The complaint alleged that the defendants violated Jones's Fourth Amendment right to be free from excessive force and his Fourteenth Amendment right to adequate medical care while detained by the state. The complaint also contained claims for relief under Ohio law for wrongful death, gross negligence, and loss of consortium.

The defendants moved to dismiss the entire complaint on the grounds that the complaint fails to state a claim, the individual defendants are entitled to qualified immunity on the constitutional claims, and all defendants are entitled to statutory immunity under Ohio law on the state law claims. Defendants appeal the district court's (1) denial of the motion to dismiss the claims against the City,...