Swink v. Montgomery Cnty. Bd. of Comm'rs
| Decision Date | 18 August 2017 |
| Docket Number | Case No. 3:16-cv-392 |
| Parties | AMBER SWINK, Plaintiff, v. MONTGOMERY COUNTY BOARD OF COMMISSIONERS, et al., Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Plaintiff Amber Swink ("Plaintiff") alleges that, after being arrested and transported to the Montgomery County, Ohio, Jail ("Jail"), she was forcibly placed into a restraint chair and was twice sprayed with oleoresin capsicum ("OC spray" or "pepper spray"), at the direction of Defendant Judith Sealey ("Sealey"), at the time a sergeant (now captain) within the Office of the Montgomery County, Ohio, Sheriff ("Sheriff"). Doc. #3. Further, Plaintiff claims that, in violation of Sheriff's Office policy, Sealey did not allow her use of force against Plaintiff to be videotaped, and she did not complete a Use of Force Report regarding the pepper spraying of Plaintiff. Id. Nor was she ordered to do so by any of the following: Defendants Phil Plummer ("Plummer"), Montgomery County, Ohio, Sheriff; Chuck Crosby ("Crosby"), a captain within the Sheriff's Office who was responsible for overseeing the Jail's day-to-day operations; or Scott Landis ("Landis"), a major within the Sheriff's Office. Id. Plaintiff filed suit against Plummer, Crosby, Landis and Sealey (collectively "Individual Defendants"), in their individual and official capacities, and the Montgomery County, Ohio, Board of Commissioners ("BCC" or "the Board"), alleging violations of her rights under the United States Constitution (claims under 42 U.S.C. § 1983) and raising several claims arising under Ohio state law. Id. The Board and the Individual Defendants (collectively "Defendants") have filed a Motion for Partial Judgment on the Pleadings ("Motion"). Doc. #15. For the reasons set forth below, the Motion is SUSTAINED IN PART AND OVERRULED IN PART.
On or about November 15, 2015, Plaintiff was arrested at her home while in an intoxicated state. Doc. #3, ¶ 14, PAGEID #29. During her arrest and while she was being transported to the Jail, Plaintiff, while "manhandled" by the arresting officers, "was unharmed prior to arriving at the Montgomery County Jail[.]" Id., ¶ 21, PAGEID #30. Plaintiff was placed in a holding cell, "where it was reported that she was continuing to act belligerent[ly], continued screaming and banging on the glass." Id., ¶ 27. Sealey, after warning Plaintiff to stop her behavior, id., ¶ 28, "ordered Plaintiff Amber Swink's cell door open[ed] and delivered a significant amount of OC spray into her cell, on herperson and in her face which debilitated the Plaintiff and caused her to stop any belligerent conduct upon which the cell door was closed." Id., ¶ 29, PAGEID #31. Sealey's use of pepper spray was not recorded on video, in violation of a Jail policy requiring that every use of force to be videotaped. Id., ¶¶ 31-32.
Sealey ordered Corrections Officers M.K. Plumb and L.J. Jenkins to place Plaintiff into a seven-point restraint chair, "where she was then strapped into the chair[,] [preventing] her from moving." Doc. #3, ¶ 36, PAGEID #31. "[S]he was left fully restrained, handcuffed and isolated in the chair for over an hour and a half." Id., ¶ 37. "After an hour and a half of being left in the restraint chair and unable to move, Plaintiff Amber Swink started yelling," id., ¶ 38, at which point Sealey again used pepper spray on Plaintiff "until she became unconscious and suffer[ed] permanent, serious, and debilitating injuries." Id., ¶ 39. This second incident was videotaped.
After the night in question, several sergeants working in the Jail reported the above incidents to Crosby. Doc. #3, ¶ 53, PAGEID #33. Crosby began an investigation of the conduct of Sealey and the other Corrections Officers, and reviewed the videotape of Sealey's second use of pepper spray. Id., ¶¶ 54, 56. "Crosby shared the information and videotape with Defendant [Major] Landis, who was his direct supervisor." Id., ¶ 58. The videotape was subsequently viewed by Sheriff Plummer, who, in association with Landis, Crosby and Sealey, allegedly ordered that "all videotape, electronic and other evidence of Defendant Sealey spraying Plaintiff Amber Swink with OC spray while in the restraint chair [be] destroyed." Id., ¶ 73, PAGEID #35. Further, and in contravention of Sheriff's Office policy, id., ¶ 64, PAGEID #34, "Sealey never filled out a Use of Force report concerning her use of OC spray against Plaintiff[,]" id., ¶ 66, nor was she everinstructed to do so by Crosby, Landis or Plummer. Id., ¶ 67. Rather, Landis "took it upon himself to issue a 'Letter of Caution' to Defendant Sealey, not for her assault and excessive use of force against an inmate, but for not filling out a Use of Force report[.]" Id., ¶ 74, PAGEID #35.
On June 20, 2016, Plaintiff's counsel made a public records request to the Sheriff's Office for any videotape and Use of Force Report connected with Plaintiff's detention at the Jail. Doc. #3, ¶ 77, PAGEID #35. The Sheriff's Office failed to produce any tape, but did produce two memoranda "from Defendant Crosby related to the public records requested . . . dated July 1, 2016[,] and July 5, 2016[.]" Id., ¶ 79. The memoranda stated, in relevant part, that: "Pursuant to Montgomery County Record Retention Schedule . . . [for] Security Video Recordings, the Retention Period is listed as '7 days, automatic data overwrite.'" Id., ¶ 80, PAGEID #36. Plaintiff's counsel "made a second and final public records request directly to Defendant Sheriff Phil Plummer on August 9, 2016[,] in which the videotape and Use of Force report from the aforementioned incident [were] requested." Id., ¶ 83. Plummer did not produce any videotape or Use of Force Report in response to that second request. Id., ¶ 84.
On November 3, 2016, Plaintiff filed the instant lawsuit. In relevant part for the current Motion, Plaintiff alleges that the Board "is and was responsible for establishing and implementing policies and procedures designed to assure the constitutionally-proper operation of the Montgomery County Jail and Montgomery County Sheriff's Office and exercising proper oversight over these same entities." Doc. #3, ¶ 106, PAGEID #38. Plaintiff claims that, in furtherance of such oversight, the Board was required to implement policies to protect Jail inmates from excessive force, and policiesregarding "documentation of any use of force and/or wrongful conduct by any law enforcement officer, and a document/videotape retention policy that provides for sufficient review of events that is long enough to be useful to supervisors, investigators, inmates and litigants." Id. Plaintiff alleges that the Board, in dereliction of those responsibilities, "tolerated a custom of wrongful conduct within the Montgomery County Sheriff's Office that leads to, causes, or results in the deprivation of constitutionally protected rights." Id., ¶ 110, PAGEID #39. Plaintiff claims that the Board "adopted policies, practice, and procedures that they knew or should have known would be inadequate to prevent Plaintiff's injuries or to retain documentation of the videotapes and/or use of force reports long enough to be of use to litigants in Plaintiff's position." Id., ¶ 111.
Further, Plaintiff alleges that the Board "implemented, promulgated, adopted, ratified and acquiesced in the deliberate indifference to the serious needs of the Plaintiff, and . . . creat[ed] an unlawful and unreasonable risk of injury, use of excessive force and deprivation of her right to documentary and videotape evidence of the wrongful conduct." Doc. #3, ¶ 112, PAGEID #39. Plaintiff claims that her injuries demonstrate that the Board was "deliberately indifferent to the safety and constitutional rights of detainees!,]" id., ¶ 123, PAGEID #40, and that the Board, despite knowing that Plaintiff's constitutional rights had been violated, failed to implement or order additional training, supervision, or discipline so as to prevent future detainees from suffering similar injuries and deprivations of rights. Id., ¶¶ 124-25, PAGEID #40-41.
Spoliation of Evidence/Interference with Right to Remedy ("Spoliation"), respectively, are raised only against the Individual Defendants in their respective individual capacities. Doc. #3, PAGEID #43-44. In Claim Seven, Plaintiff alleges that the Individual Defendants were reasonably on notice that litigation was likely to ensue with respect to Plaintiff's detention. Yet, they destroyed any videotapes or Use of Force Report that pertained to Sealey's pepper-spraying of Plaintiff, in contravention of Jail policies. Id., ¶¶ 158-60, PAGEID #44. Plaintiff claims that the Individual Defendants' conduct "was designed to disrupt or destroy Plaintiff's future civil action for damages, forcing Plaintiffs to expend and incur further fees, costs, and other damages for recovery of damages[.]" Id., ¶ 161. In Claim Six, Plaintiff claims that the Individual Defendants associated with one another and formed an agreement regarding "an unlawful objective, namely, the falsification, omission and destruction of official reports and videotape evidence chronicling the assault, battery and detention of Plaintiff in the Montgomery County Jail." I...
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