Pineda v. Hamilton Cnty.

• Decision Date: 02 October 2020
• Docket Number: No. 19-3839,19-3839
• Parties: Ali PINEDA, Plaintiff-Appellant, v. HAMILTON COUNTY, OHIO; Hamilton County Sheriff's Department ; Jim Neil, Raymond Berry, William Cotton, and Gene Nobles, in their official and individual capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

977 F.3d 483

Ali PINEDA, Plaintiff-Appellant,

v.HAMILTON COUNTY, OHIO; Hamilton County Sheriff's Department ; Jim Neil, Raymond Berry, William Cotton, and Gene Nobles, in their official and individual capacities, Defendants-Appellees.

No. 19-3839

United States Court of Appeals, Sixth Circuit.

Decided and Filed: October 2, 2020

ON BRIEF: Marc D. Mezibov, Brian J. Butler, MEZIBOV BUTLER, Cincinnati, Ohio, for Appellant. Mark Vollman, Cooper Brown, HAMILTON COUNTY PROSECUTOR'S OFFICE, Cincinnati, Ohio, for Appellees.

Before: BATCHELDER, LARSEN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

In a famous tort case, a plaintiff was hit by gunfire when two hunters negligently discharged their shotguns in his direction. The plaintiff could not identify which of the two hunters had fired the injurious shot, but the court held that both could be found jointly liable. See Summers v. Tice , 33 Cal.2d 80, 199 P.2d 1, 2–5 (1948). The plaintiff in this case, Ali Pineda, asks us to adopt (and expand) something like this rule for his constitutional claim under 42 U.S.C. § 1983. Three off-duty sheriff's deputies were providing outside security at a Cincinnati night club. Pineda alleges that one of them hit him on the back of the head with a baton and caused a serious brain injury

. He brought an excessive-force claim against all three deputies. At the summary-judgment stage, however, Pineda did not identify the specific deputy who struck the blow. He argues that he should be allowed to proceed to trial against all three deputies even though, on his own telling, two are free of fault. We disagree. Unlike the tortfeasors in Summers who had both been negligent, only one deputy in this case allegedly committed a constitutional violation. Because Pineda did not present evidence that would allow a reasonable jury to identify the deputy who did so, we affirm the grant of summary judgment to all three deputies.

I

Around 11:00 p.m. on November 9, 2013, Pineda and his wife attended "Hispanic Night" at the Inner Circle Nightclub in Cincinnati, Ohio. This nightclub relied on private bouncers for security in the establishment. But it contracted with the Hamilton County Sheriff's Office to employ off-duty deputies for security in its large parking lot. Deputies William Cotton and Roy Berry (who are African American) and Deputy Gene Nobles (who is white) worked this night. These off-duty deputies still dressed in their uniforms.

Pineda and his wife spent several hours dancing at the club, and Pineda recalls having three drinks. At closing around 2:30 a.m., other clubgoers got into a fight. The bouncers responded to the ruckus by aggressively pushing all patrons toward the door. Their actions led a crowd to form at the exit. Pineda's wife got ahead of him in the crowd and made it to their car first. When Pineda exited, he saw individuals arguing with a bouncer just past the door. Pineda attempted to defuse the argument and told the individuals to calm down. The bouncer responded by hitting Pineda in the face and chipping two teeth.

The parties dispute what happened next. According to Pineda, a sheriff's deputy who had been standing behind him immediately knocked him unconscious by striking him on the back of the head with his baton. Pineda believes that this deputy was African American. He testified that he "could recognize [the person] by his face" if he saw him. But two African-American deputies worked that night, and Pineda has never identified the culprit. Three of Pineda's friends generally corroborated his recollection. Luis Alonzo Avila noted that "a black man somewhere between 48 and 50 years old ... hit him on the back of the head." He expressed uncertainty, though, over whether this man "was security or a police officer." Juana Elia Gomez testified that she saw Pineda fall to the ground after a deputy struck him on the head. Ricardo Antonio Andino likewise described the deputy who hit Pineda as "black," "[t]all, and not too young and not too old." At the time of this strike, Pineda recalled that the three deputies were in different locations. When Pineda's friends attempted to assist him and call 911, one or more of the deputies allegedly impeded their efforts to help.

The deputies tell a different story. They claim that they were in different areas dispersing the crowd and did not witness what happened to Pineda. Deputy Cotton, the superior officer, testified that he had been escorting others out of the bar. When Cotton went outside, he saw Pineda already on the ground with a crowd gathered around him. Deputies Nobles and Berry testified similarly that they heard individuals yelling at each other and found Pineda lying on the ground when they approached to see what was happening. Cotton allegedly tried to discover how Pineda had been injured, but language barriers impeded his efforts. He also said that he called for an ambulance. Each deputy testified that he did not hit anyone with his baton that night and did not see the other deputies do so. At this stage, however, we must accept Pineda's version of events, not the deputies’ version.

By everyone's account, Pineda's injuries were significant. He ended up on the ground unconscious and in a pool of blood. Bystanders thought he was dead. Around 3:00 a.m., officers with the Cincinnati Police Department and paramedics arrived at the scene. An ambulance took Pineda to a hospital. He has no memory from the time of the blow until when he was at the hospital. He spent twelve hours in the hospital and the next two weeks lying on a mattress with what he described as "very intense pain" in his head and neck. He could not work for a month. And he still regularly experiences dizziness and headaches.

Officers with the Cincinnati Police Department investigated the incident. At the hospital, an officer wrote a report indicating that Pineda had said that a bouncer assaulted him for no reason. This report did not mention an assault by a deputy. Five days later, an investigator met with Pineda but had trouble communicating with him. Pineda gave her a note stating: "Without warning the security guard punched me with his fist followed by the Sheriff striking me with his night stick or baton in my head." The investigator told her supervisor about the claim against the deputy, and her supervisor arranged for the note to be sent to the Hamilton County Sheriff's Office.

Chief Deputy Mark Schoonover with the sheriff's office tasked Steve Minnich in internal affairs to investigate Pineda's allegations against the deputy. Minnich spoke with the deputies about the night in question. Yet he was unable to contact Pineda because he had no telephone number or address for him. Minnich also did not coordinate with officers at the Cincinnati Police Department to see if they had Pineda's contact information, admitting later that "[m]aybe I should have." In his report, Minnich noted that the "case will remain open until more evidence can be located." Chief Deputy Schoonover, who had final authority to accept an investigation's findings, agreed with Minnich's decision that the case should remain open.

Pineda brought this suit under 42 U.S.C. § 1983 against Deputies Cotton, Berry, and Nobles along with Hamilton County Sheriff James Neil and the Hamilton County Sheriff's Office. Pineda alleged, among other claims, an excessive-force claim against the three deputies under the Fourth Amendment. He also alleged that the Hamilton County Sheriff's Office and Sheriff Neil had "ratified" the deputy's purported excessive force by failing meaningfully to investigate his accusation.

A magistrate judge recommended that the district court grant summary judgment to all defendants. Pineda v. Berry , 2019 WL 3323542, at *9 (S.D. Ohio July 23, 2019). On the excessive-force claim, the magistrate judge reasoned that "neither [Pineda], nor anyone else, has specifically identified who it was that struck" him. Id. at *6. On the failure-to-investigate claim, the judge reasoned that, "[a]lthough the investigation may not have been an example of best investigatory practices, it was not so inadequate as to constitute ratification" of excessive force. Id. at *8. The district court adopted this recommendation. Pineda v. Berry , 2019 WL 4059878, at *1 (S.D. Ohio Aug. 28, 2019). Pineda now appeals, and we review the district court's decision de novo. Davis v. Echo Valley Condo. Ass'n , 945 F.3d 483, 489 (6th Cir. 2019).

II

Pineda raises two arguments. He asserts that the district court should have allowed the jury to decide which deputy, if any, struck him in violation of the Fourth Amendment. He also asserts that the sheriff's office undertook such a slipshod investigation that a jury could find the office and Sheriff Neil liable on his excessive-force claim under a "ratification" theory.

A. Excessive-Force Claim Against the Deputies

Section 1983 makes "liable" "[e]very person" who "under color of" state law "subjects, or causes to be subjected," another person "to the deprivation of any rights, privileges, or immunities secured by the Constitution[.]" 42 U.S.C. § 1983. On appeal, the parties do not dispute that Pineda has met two of the elements that this text requires. As an initial matter, while the deputies argued in the district court that they were not acting "under color of" state law when providing off-duty security at a nightclub, they have not renewed this argument on appeal. See Pineda , 2019 WL 3323542, at *7 n.9 ; cf. Morris v. City of Detroit , 789 F. App'x 516, 518–19 (6th Cir. 2019). In addition, the deputies have not disputed that, under the version of events that we must accept, Pineda was subjected to a constitutional "deprivation." 42 U.S.C. § 1983. The Fourth Amendment protects against "unreasonable" "seizures," U.S. Const. amend. IV, and the Supreme Court has long held that a "seizure" qualifies as "unreasonable" if officers use excessive force in carrying it out, see Graham v. Connor , 490 U.S. 386, 395, 109 S.Ct. 1865, 104...