Leisure v. City of Cincinnati

• Decision Date: 06 May 2003
• Docket Number: No. C-l-01-286.,C-l-01-286.
• Citation: 267 F.Supp.2d 848
• Parties: Angela LEISURE, et al., Plaintiffs, v. CITY OF CINCINNATI, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

267 F.Supp.2d 848

Angela LEISURE, et al., Plaintiffs, v.CITY OF CINCINNATI, et al., Defendants.

No. C-l-01-286.

United States District Court, S.D. Ohio, Western Division.

May 6, 2003.

COPYRIGHT MATERIAL OMITTED

Alphonse Adam Gerhardstein, Laufman & Gerhardstein, Kenneth L. Lawson, Lawson & Associates, Cincinnati, OH, for plaintiffs.

Daniel Wilson Drake, Columbus, OH, Mark Carl Vollman, Hamilton County Prosecutor's Office, Donald Edson Hardin, Hardin, Lefton, Lazarus & Marks LLC, Richard Ganulin, Assistant City Solicitor, Geri H. Geiler, Cincinnati, OH, for defendants.

ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on Defendants' Motion to Dismiss Second Amended Complaint, Motion to Strike, Motion for More Definite Statement and Memorandum in Support (doc. 46), Defendants' Supplement (doc. 47), Plaintiffs' Memorandum in Opposition and Motion for Continuance to Permit Discovery Pursuant to Rule 56(f)(doc. 48), and Defendants' Reply and Memorandum in Opposition to Motion for Continuance(doc. 49).

I.Background

The Court reports the facts of this case based on a review of the allegations in the Plaintiffs' Second Amended Complaint (doc. 42).This case concerns the April 7, 2001 fatal shooting of Timothy Thomas by Cincinnati Police Officer Stephen Roach(Id.).Thomas fled in the early morning hours after being recognized by police and was pursued by Defendant Roach and other officers through the streets and alleys of Over-the-Rhine, a Cincinnati neighborhood (Id.).Officer Roach, with gun out and his hand on the trigger, ran down the side of a building attempting to apprehend Thomas (Id.).Thomas ran around the corner of the building and Roach shot him (Id.).

The killing of Timothy Thomas, an African-American, by Defendant Roach, a Caucasian police officer, triggered events leading to riots, protests, and a boycott that persists to the present.Officer Roach was subsequently prosecuted in the Hamilton County Municipal Court for negligent homicide, but was ultimately acquitted of the charge in a, bench trial.Ohio v. Stephen Roach,Case No. 01CRB15477 A/B, (Hamilton County Municipal Court, September 2001)(doc. 46).A parallel investigation into the shooting was commenced by the Department of Justice("DOJ"), but that investigation, as elaborated upon more below, is still pending.

This civil suit, brought by Thomas' estate, was originally filed May 9, 2001(doc. 1).The Second Amended Complaint alleges civil rights violations pursuant to 42 U.S.C. § 1983, wrongful death under Ohio Revised Code § 2125.01, and loss of consortium, naming as Defendants Officer Roach and the City of Cincinnati(hereinafter "City")(doc. 42).In order to avoid prejudicing the rights of Defendant Roach, this case has been held in abeyance since December 6, 2002, pending the outcome of the DOJ investigation of the shooting (docs. 33 & 35).In autumn 2002the parties made repeated attempts to verify the status of the DOJ investigation to no avail (doc. 33).The Court telephoned the DOJ during a January 3, 2003 status conference in order to urge movement on the investigation (doc. 35).

On February 12, 2003, the Court set a trial schedule based on the Court's understanding that the DOJ was not pursuing an investigation and that this case needs to be resolved expeditiously for the good of the parties and the Cincinnati community (doc. 45).The Court also ordered that any motions premised upon qualified immunity be filed so that a decision on that issue could be entered promptly (Id.).Only recently in April of 2003, has the Court become aware that the DOJ investigation is still active.Regardless of this fact, the Court finds that it is still proper to issue a ruling on the question of qualified immunity, as any interlocutory appeal to such ruling can thus be completed so that trial can begin at the earliest possible date.In addition, in order to avoid all possible delay, the Court will decide the balance of the pending ripe motions case herein.

Due to the sensitive nature of this case, the Court desires to make clear that at this point in the process, the Court is not determining the truth of Plaintiffs' allegations.At this point the Court is only determining whether Plaintiffs' allegations meet the threshold requirements to survive a motion to dismiss and to defeat a claim of qualified immunity.In doing so, the Court must accept as true all allegations in the well-pleaded complaint under attack.Great Lakes Steel v. Deggendorf,716 F.2d 1101, 1105(6th Cir.1983).As this matter proceeds, the process will provide further opportunity to test whether Plaintiffs can prove their allegations.

II.Qualified Immunity for Defendant Roach

Qualified immunity is a doctrine that protects "government officials acting in their official capacities from damages if their actions did not violate clearly established statutory or constitutional rights of which a reasonable person would have known."Harlow v. Fitzgerald,457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396(1982).The Supreme Court has recognized the doctrine of qualified immunity in Section 1983cases.Greene v. Reeves,80 F.3d 1101, 1104(6th Cir.1996).A ruling on qualified immunity should be made early in the proceedings so that the cost and expenses of trial are avoided where the defense is dispositive.Hunter v. Bryant,502 U.S. 224, 226, 112 S.Ct. 534, 116 L.Ed.2d 589(1991).Such immunity is an entitlement not to stand trial, not a defense from liability.Mitchell v. Forsyth,472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411(1985).

The qualified immunity analysis involves two steps.Saucier v. Katz,533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272(2001).The first step is to determine whether a constitutional right would have been violated on the facts alleged, for if no right would have been violated, there is no need for further inquiry.Id at 201, 121 S.Ct. 2151.To determine whether the facts alleged show that a constitutional right has been violated, the court must take the facts in the light most favorable to the party asserting the injury.Id.citingSiegert v. Gilley,500 U.S. 226, 232, 111 S.Ct. 1789,114 L.Ed.2d 277(1991).

If a violation could be made out on a favorable view of the injured party's facts, the second step is to ask whether the right was clearly established.Id.This inquiry, the Supreme Court has instructed, "must be undertaken in light of the specific context of the case, not as a broad general proposition."Id.The Supreme Court has directed that "[t]he relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted."Saucier v. Katz,533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272(2001)citingWilson v. Layne,526 U.S. 603, 615, 119 S.Ct. 1692, 143 L.Ed.2d 818(1999).In conducting its analysis, the Court should use plaintiffs allegations in the complaint to determine the appropriateness of defendants' qualified immunity defense.Onderik v. Morgan,897 F.2d 204, 209(6th Cir.1989)citingMitchell v. Forsyth,472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411(1985)¹

Having reviewed Defendants' Motion it is clear that qualified immunity is being invoked solely as to Defendant Roach (doc. 46).The core of Defendant Roach's qualified immunity argument is premised on the theory that the shooting of Thomas was accidental or inadvertent.As such, citing County of Sacramento v. Lewis,523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043(1998), Defendant Roach argues that he is entitled to qualified immunity because there is no constitutional right to be free of an inadvertent use of force (doc. 46).Defendant Roach further argues, citing Saucier v. Katz,533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272(2001), that even in cases where a clearly established constitutional right has been violated, if the officer was reasonably mistaken, the officer still benefits from the protection of qualified immunity (Id.).Defendant Roach also argues "the imputation of ulterior motive" to him by Plaintiffs"requires that the Second Amended Complaint must contain specific and nonconclusory allegations of fact in order to overcome the qualified immunity defense," and that Plaintiffs have failed to provide such allegations (Id.).Finally, Defendant Roach protests that Plaintiffs' assertion that "Mr. Thomas was wanted on misdemeanor charges, was unarmed and posed no threat to the officer" fails to account for the fact that Roach did not know any of these things as he was pursuing Thomas, who was "fleeing in the early hours of the morning down dark back alleys in Over-the-Rhine"(doc. 49).Defendant Roach argues that it was objectively reasonable for him to not know any of these things (Id.).Moreover, he argues, one who flees from the police under such circumstances does "not have a right to do so without risking tragic consequences"(doc. 46).

Plaintiffs argue that their Second Amended Complaint clearly states a Fourth Amendment claim of excessive force against Officer Roach (doc. 48).The Fourth Amendment protects citizens from unreasonable searches or seizures.Excessive force used by a government entity in seizing a citizen is unreasonable and violates the Fourth Amendment.

Plaintiffs argue, based on Tennessee v. Garner,471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1(1985) that the use of deadly force in the absence of probable cause to believe a subject is a danger to the police or the public runs afoul of the Fourth Amendment(doc. 48).Plaintiffs read Defendants' argument that Roach's use of force was inadvertent to constitute a negligence defense, and characterize such a defense as absurd (Id.).Plaintiffs question Officer Roach's veracity because he had two differing explanations about how the shooting occurred (Id.).They also apparently argue that it would be unjust to dismiss Roach from the case without an opportunity to elicit Roach's testimony so...