Phelps v. Coy

• Decision Date: 15 September 2000
• Docket Number: No. C-3-98-369.,C-3-98-369.
• Citation: 164 F.Supp.2d 961
• Parties: Glenn W. PHELPS, Jr., Plaintiff, v. Robert M. COY, Jr., et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

164 F.Supp.2d 961

Glenn W. PHELPS, Jr., Plaintiff, v. Robert M. COY, Jr., et al., Defendants.

No. C-3-98-369.

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

September 15, 2000.

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David Michael Deutsch, David M. Deutsch Co., LPA, Dayton, OH, for Glenn W. Phelps, Jr.

Neil Frank Freund, Freund Freeze & Arnold, Dayton, OH, Lynnette Pisone Ballato, Law Office of Nicholas E. Subashi, Dayton, OH, for Eric Prindle, City of Xenia, Lee G. Esprit, Jr., Larry Gordon, John T. Saraga, Dr. Eric Winston, Max Sims, Robert Stilwell, Everett Ross.

Lawrence Edward Barbiere, Schroeder Maundrell Barbiere & Powers, Cincinnati OH, for Robert M. Coy, Jr., Christin Stutes.

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS COY AND STUTES (DOC. # 71); DECISION AND ENTRY OVERRULING, AS MOOT, XENIA DEFENDANTS' MOTION TO COMPEL DISCOVERY (DOC. # 77); DECISION AND ENTRY SUSTAINING XENIA DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. # 78); DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING, AS MOOT IN PART, XENIA DEFENDANTS' MOTION TO STRIKE (DOC. # 84); DECISION AND ENTRY OVERRULING XENIA DEFENDANTS' MOTION TO STRIKE SUPPLEMENTAL AFFIDAVIT (DOC. # 89)

RICE, Chief Judge.

This litigation arises out of incidents which occurred on August 30, 1997.¹ On that date, Defendants Robert M. Coy, Jr. ("Coy") and Christin Stutes ("Stutes"), who were then employed by the Police Department for the City of Xenia, Ohio ("Xenia"), as, respectively, a Sergeant and an Officer, arrested the Plaintiff for violating Xenia's open container ordinance.² After being arrested, the Plaintiff was placed in handcuffs and transported to the Xenia Police Station.

At that facility, Stutes processed the Plaintiff, asking him routine questions as part of the booking function. Plaintiff remained handcuffed throughout. Stutes asked the Plaintiff to remove his shoes and socks, in order for that officer to ascertain whether he had hidden drugs in his feet. Stutes also instructed the Plaintiff to lift his feet. As the handcuffed Plaintiff was complying with that directive, one of his feet got close to Stutes' face. Stutes was able to grab the offending foot and push it away. Coy, seeing the Plaintiff's action and interpreting it as an attempt to kick Stutes, tackled the Plaintiff, which caused them both to fall to the ground, with Coy on landing top of the Plaintiff. As he was on top of Plaintiff and, while telling him not to attempt to kick one of his officers, Coy struck the Plaintiff in the face twice and, then, grabbed his shirt and slammed his head into the ground at least three times. As the confrontation between Coy and Plaintiff was occurring, Tawfiq Jabbar ("Jabbar"), another person, who had been arrested and was in the Police Station, got out of his chair in which he was sitting and started to walk toward the altercation, causing Stutes to shift his attention to Jabbar. As a result, Stutes did not attempt to intervene to stop Coy's actions. By the time that Stutes' attention refocused upon the altercation between Coy and Plaintiff, Coy was telling the Plaintiff to calm down and proceeding to help him to his feet.

Danny O'Malley, who was then Chief of Police for Xenia, immediately launched an investigation into the events that had occurred on August 30th. The result of that investigation was that Coy was fired from his position with the Xenia Police Department the following month.³ Shortly thereafter Judge Susan Goldie of the Xenia Municipal Court hired Coy as a bailiff.

In his Complaint (Doc. # 1), the Plaintiff sets forth claims against Stutes, Coy, Xenia, Eric Prindle ("Prindle") and the City Commissioners of Xenia.⁴ For sake of convenience, the Court, throughout this Decision, refers to Xenia, Prindle and the City Commissioners of Xenia collectively as the "Xenia Defendants." With his First Claim for Relief, the Plaintiff has set forth a claim under 42 U.S.C. § 1983, against all Defendants, alleging that his rights under the Fourth and Fourteenth Amendments were violated by the use of excessive force. With his Second Claim for Relief, the Plaintiff has set forth a state, common law claim of assault and battery against Coy and Xenia. With his Third Claim for Relief, Plaintiff sets forth an alternative theory for imposing liability on Xenia, under § 1983, for the actions of Coy, alleging that the municipality ratified those actions, given that Judge Goldie hired him shortly after he had been fired.⁵ With his Fifth Claim for Relief, Plaintiff sets forth a state, common law claim of false arrest against Coy, Stutes and Xenia.⁶ With his Eighth Claim for Relief, Plaintiff alleges that a provision in Ohio's Governmental Tort Immunity Act, Ohio Revised Code § 2744.02(B), is unconstitutional, because it arbitrarily distinguishes between governmental and proprietary functions.⁷

This case is now before the Court on the following motions, to wit: the Motion for Summary Judgment of Coy and Stutes (Doc. # 71); the Xenia Defendants' Motion to Compel Discovery (Doc. # 77); the Xenia Defendants' Motion for Summary Judgment (Doc. # 78); the Xenia Defendants' Motion to Strike (Doc. # 84); and the Xenia Defendants' Motion to Strike Supplemental Affidavit (Doc. # 89). As a means of analysis, the Court will initially set forth the standards which are applicable to all motions for summary judgment, following which it will rule upon the Xenia Defendants' Motion to Strike (Doc. # 84) and Motion to Strike Supplemental Affidavit (Doc. # 89). The Court will then will turn to the two motions seeking summary judgment, discussing them in the above order. If the Court overrules the Xenia Defendants' Motion for Summary Judgment (Doc. # 78), it will rule upon their Motion to Compel Discovery (Doc. # 77).⁸ If, however, the Court concludes that the Xenia Defendants are entitled to summary judgment, it will overrule their Motion to Compel Discovery (Doc. # 77), as moot.

I. Standards Applicable to Motions for Summary Judgment

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, the moving party:

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Id. at 323, 106 S.Ct. 2548. See also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (The moving party has the "burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the nonmoving party, do not raise a genuine issue of material fact for trial.") (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987)). The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, "[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed.R.Civ.P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989).

Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) ("The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff."). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment shall be denied "[i]f there are ... `genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.'" Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992) (citation omitted). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties' affiants are more credible; rather, credibility determinations must be left to the...