Ondo v. City of Cleveland

• Decision Date: 03 August 2015
• Docket Number: No. 14–3527.,14–3527.
• Citation: 795 F.3d 597
• Parties: Steven ONDO; Jonathan Simcox, Plaintiffs–Appellants, v. CITY OF CLEVELAND, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

795 F.3d 597

Steven ONDO; Jonathan Simcox, Plaintiffs–Appellants

v.CITY OF CLEVELAND, et al., Defendants–Appellees.

No. 14–3527.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 22, 2015.

Decided and Filed: Aug. 3, 2015.

ARGUED:Sara Gedeon, Chesterland, Ohio, for Appellants. Joseph F. Scott, City of Cleveland, Cleveland, Ohio, for Appellees. ON BRIEF:David B. Malik, Samuel S. Riotte, Chesterland, Ohio, for Appellants. Joseph F. Scott, City Of Cleveland, Cleveland, Ohio, for Appellees.

Before: BATCHELDER, SUTTON, and COOK, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court in which COOK, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pg. 612), delivered a separate opinion concurring in all but Parts III.B and III.C and in the judgment.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Plaintiffs Steven Ondo and Jonathan Simcox were arrested in their temporarily shared residence by Cleveland police officers on April 8, 2011, on allegations of felonious assault on a police officer. The arrest occurred in the early morning when Plaintiffs were still in their boxer shorts, and police refused their demands to retrieve additional clothing, instead issuing them jumpsuits at some point after Plaintiffs arrived at the police station. Plaintiffs have repeatedly changed their stories since the arrest. And in this case—the second lawsuit arising from the arrest—Plaintiffs allege that the officers violated their Fourth Amendment rights by repeatedly striking them. Plaintiffs, who are homosexual, further claim that the officers violated their rights under the Fourteenth Amendment Equal Protection Clause by forcing them to remain in their boxer shorts. Plaintiffs also claim that several of these actions constitute intentional infliction of emotional distress under Ohio law. Most of these allegations were pleaded only against the officers as a group, and Plaintiffs did not amend their pleadings as additional facts purportedly came to light. Instead, when Defendants moved for summary judgment, Plaintiffs filed affidavits based upon “personal knowledge and belief” with their opposition to summary judgment, claiming specifically—for the first time—which officer allegedly committed each act. The district court granted Defendants' motion to strike these affidavits, explaining that the court did not know which statements were based solely on personal knowledge, as required by the Federal Rules of Civil Procedure, and which statements were based only upon belief. The district court then held that without those affidavits, the remaining record did not contain sufficient evidence to permit Plaintiffs' claims to survive Defendants' motion for summary judgment.

We hold that whether to strike in whole or in part affidavits based upon “personal knowledge and belief” is within the sound discretion of the district court, and that the district court did not abuse its discretion here. We also hold that, construing in the light most favorable to Plaintiffs the record that remains without the affidavits, Defendants are entitled to judgment as a matter of law because Plaintiffs' arguments fail on the merits. We therefore AFFIRM the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

A.

At approximately 2:00 AM on April 2, 2011, Steven Ondo and Jonathan Simcox were returning home after several hours of drinking alcohol, and got into a heated argument outside their apartment building. A neighbor came out to confront them, at which time Simcox told him to “F* * * off.” An altercation ensued involving all three men, during which the neighbor identified himself as an off-duty police officer. Later that night police came to Plaintiffs' door and arrested them in their apartment. Plaintiffs spent two nights in jail and were treated for minor injuries. Several days later, arrest warrants were issued for Plaintiffs for felonious assault on a police officer. On April 8, 2011, at 7:00 AM, SWAT Team officers with the Cleveland Police Warrant Team arrived at Plaintiff's apartment in Cleveland. This ten-man team comprises eight patrol officers under the command of two senior officers, Lieutenant Timothy Gaertner and Sergeant Daniel Galmarini. After entering Plaintiffs' apartment building through the unlocked front door, Officer William Johnson encountered Ondo in the stairwell, informed Ondo of the arrest warrant, and handed Ondo to other officers to handcuff. Johnson then encountered Simcox in the stairwell, handcuffed him, and handed him over to other officers on the second floor. Ondo and Simcox were both agitated and repeatedly asked why they were being arrested. The officers then exited the building, keeping Plaintiffs on the lawn for several minutes as they prepared to load them into a paddy-wagon van to travel to the next warrant location.

Jesse Simcox—the brother of Jonathan—had been sleeping in Ondo's apartment that night and went downstairs to investigate the commotion, where he found officers and Plaintiffs. Plaintiffs claim the officers were “pushing [them] around” and punched them repeatedly in the face, and repeatedly uttered anti-homosexual slurs. Plaintiffs allege that although the officers allowed Jesse Simcox to fetch shoes for Plaintiffs, the police denied Jesse Simcox the opportunity to get pants for them, and thus they were forced to go to jail in their underwear, because, as officers allegedly told them, “faggots don't wear pants in jail.” Plaintiffs alleged a barrage of slurs, such as one officer's saying, “It's a house full of fags here.” Plaintiffs originally alleged that they were forced “to wear only their underwear for over a day,” later changing their story to claim they were not issued jumpsuits until after dinnertime. While in jail, neither Plaintiff requested or received any medical care, or made any medical report to jail staff. Moreover, no injuries are visible in Plaintiffs' booking photos.

The police denied Plaintiffs' allegations. Gaertner and Galmarini were never named as defendants in the litigation, and insist that each Plaintiff, when detained, was immediately placed under a supervisor's observation and control. Gaertner and Galmarini swore during their depositions that at no time did they observe any mistreatment or slurs. Gaertner did not know anything about a request for pants, while Galmarini said he made the decision to keep Plaintiffs in their boxer shorts because Plaintiffs were agitated (though not resistant), and because the officers were executing a warrant for the alleged assault of an officer, so the supervisors decided for officers' safety to remove Plaintiffs from the apartment setting and convey them to jail as quickly as possible. Contrary to Plaintiffs' claims, their booking photos prove conclusively that they were promptly issued jumpsuits once they arrived at the jail.

B.

Plaintiffs' initial arrest occurred on April 2, 2011, and the second arrest followed on April 8, 2011. On January 18, 2012, Plaintiffs filed suit against the City of Cleveland and several of its officers in federal district court, asserting claims under 42 U.S.C. § 1983 for violations of their constitutional rights, as well as various state law claims. Plaintiffs later filed an amended complaint that the district court dismissed on August 27, 2012, for failure to allege sufficient facts to support the counts in the amended complaint. Among other things, the court held that Plaintiffs' alleged facts did not satisfy the standard for municipal liability. On April 5, 2013, Ondo and Simcox filed the current § 1983 suit against seventeen defendants: the City of Cleveland, Officer Clifford Kime, Officer Tintlenot, Officer Cavanaugh, Officer Kean, Sergeant Elias Diaz, Officer Park, Officer Livingston, Officer Rojas, Officer Freeman, Officer Crytzer, Officer William Johnson, Officer Sanchez, Officer Toomey, Corrections Officer Dennis Barack, Corrections Officer Rowell, and Corrections Officer Robinson. On October 1, 2013, the court dismissed Kime from the case under Federal Rule of Civil Procedure 41(a). The court later dismissed Barack and Sanchez due to lack of proper service, dismissed Cavanaugh, Tintlenot, Diaz, and Kean under Federal Rule of Civil Procedure 12(b)(6), and dismissed the City of Cleveland on the basis of claim preclusion from the first lawsuit.

Of the remaining nine defendants, seven are members of the SWAT Team, and two are corrections officers. The complaint includes claims brought under § 1983 for excessive force, violation of privacy, failure to intervene, and denial of equal protection. It also includes two Ohio state-law claims, one for intentional infliction of emotional distress and the other for invasion of privacy. On February 15, 2014, Defendants moved for summary judgment. Plaintiffs filed their opposition to summary judgment, including affidavits from Ondo and Simcox in which they identified with specificity which officers purportedly committed various acts. Defendants filed a motion to strike the affidavits because they were based on “personal knowledge and belief,” instead of personal knowledge exclusively.

On April 28, 2014, the district court granted Defendants' motion to strike, and held that without the specific information in the affidavits, Plaintiffs' allegations were insufficiently supported by the remaining evidence in the record—which includes depositions from Plaintiffs, Defendants, other police officers, and Jesse Simcox, plus jail booking photos of Plaintiffs—to create a genuine issue of fact for a jury that the officers used excessive force or otherwise mistreated Plaintiffs. Consequently, the court granted Defendants' motion for summary judgment. This timely appeal followed.

II. STANDARD OF REVIEW

“We review a district court's discovery-related rulings under the highly deferential abuse-of-discretion standard.” Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir.2014). This includes our review of a district court ruling on a motion to strike an affidavit....