Wells v. City of Dayton

• Decision Date: 21 November 2006
• Docket Number: No. 3:04cv220.,3:04cv220.
• Citation: 495 F.Supp.2d 797
• Parties: Constance WELLS, et al., Plaintiffs, v. CITY OF DAYTON, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

495 F.Supp.2d 797

Constance WELLS, et al., Plaintiffs, v. CITY OF DAYTON, et al., Defendants.

No. 3:04cv220.

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

November 21, 2006.

COPYRIGHT MATERIAL OMITTED

Cheryl Renee Washington, Taylor Jones, Jr., Jones & Washington Co., L.P.A., Dayton, OH, for Plaintiffs.

Leonard J. Bazelak, Neil Frank Freund, Freund Freeze & Arnold, Dayton, OH, for Defendants.

EXPANDED OPINION SETTING FORTH THE REASONING AND CITATIONS OF AUTHORITY WHICH SUPPORT THE COURT'S DECISION OF MARCH 24, 2006 (DOC. # 71), TO SUSTAIN IN PART AND TO OVERRULE IN PART THE MOTION FOR SUMMARY JUDGMENT (DOC. # 17) FILED BY DEFENDANTS CITY OF DAYTON, WILLIAM MCMANUS, CHRISTOPHER CORNWELL AND STEVEN MCCALL

RICE, District Judge.

On the evening of May 23, 2003, Defendant Shawn Robinson ("Robinson") attended a cookout at his father's residence, after which he returned to his residence in an apartment building located at 104 Central Avenue, Dayton, Ohio.¹ After that party, during the early morning hours of May 24, 2003, Robinson held a handgun to the head of April Smith ("Smith"), also a tenant in that apartment building. Smith, in turn, called the Dayton Police Department. As a result of that telephone call, Defendant Christopher Cornwell ("Cornwell"), a police officer employed by Defendant City of Dayton ("Dayton"), was dispatched to the apartment building located at 104 Central Avenue.

During the evening of the 23rd and the early morning hours of the 24th, Harold Lee Wells, Jr. ("Wells"), was out with his friend, Bernard Veney ("Veney"), and Gregory West ("West"), an acquaintance of Veney. At some point during the evening, West convinced his companions to accompany him to Robinson's residence. When Wells, West and Veney arrived at the apartment located at 104 Central Avenue, one of them rang a buzzer, in order for them to be admitted to the building. They then went to Robinson's apartment, without knowing that he had earlier placed a firearm to Smith's head or that police were responding to that location as a result of Robinson's actions in that regard. Wells and Veney sat on a couch in the living room of that apartment, while West went into the kitchen.²

Upon arriving at 104 Central Avenue, Cornwell met with Smith outside that apartment building. Smith told the officer that Robinson had put a gun to her head and asked where "L" was and that, after she had told Robinson that she did not know, he had left and gone inside his apartment. Smith also told Cornwell that Robinson had drugs and guns inside his apartment and that he was drunk and needed to be stopped. After having talked to Smith and before entering the apartment building at 104 Central Avenue, Cornwell contacted Defendant Steven McCall ("McCall"), another Dayton police officer, and asked McCall to join him outside that building.

After McCall had arrived, the two officers followed Smith into the apartment building and proceeded to Robinson's apartment. Having been told that Robinson was armed and knowing that the apartment building at 104 Central Avenue was located in an intermediate to high drug area, each officer took a position on either side of the door to Robinson's apartment, so that neither could be seen by anyone looking out of the peephole in that door.³ While they were so standing, the officers drew their weapons and pointed them toward the door. After listening at the door for a few minutes and hearing multiple male voices inside, McCall motioned to Cornwell to knock on the door, and the latter knocked on it a number of times, softly. When he knocked on the door, Cornwell moved into a position where he could be seen if the door were opened, but remained out of the view of anyone peering out of the peephole. Although no one answered the door, the apartment grew quieter, and the officers could hear someone therein ask the other occupants whether they had heard a knock on the door.

After waiting a brief period of time, Cornwell knocked on the door again, although more loudly. Cornwell heard someone inside ask, using language laden with expletives, why the person knocking could not stand in front of the door. Robinson then opened the door and shot Cornwell,⁴ striking his body armor in the area of the upper part of his stomach and lower part of his chest, causing him to fall backward. The bullet did not penetrate Cornwell's body armor. As he fell backwards, Cornwell reported on his radio that shots had been fired and that he had been shot.

After Robinson had shot Cornwell, McCall attempted to look into the apartment through the partially open door, by using a technique referred to as a "cutting the pie maneuver." That maneuver permitted McCall to ease himself around, in order to look inside the apartment, without leaving a safe position of concealment. Cornwell, in contrast, was not able to see into the apartment from his position after being shot. McCall then pushed the door open all the way. As he was standing up and moving to his left into the doorway, where he could see into the apartment, Cornwell saw an individual standing next to a couch in the living room. Wells was that individual. He had stood up from the couch when Robinson had shot Cornwell. As he stood in the living room of the apartment, Wells did not present a risk of harm to either officer or to anyone else. His hands were empty and were outside of his pockets. He did not possess a weapon, nor did he move or approach Cornwell in a threatening manner or otherwise. He made no threatening gestures. Nor did he say anything which could have caused Cornwell to fear for his or anyone else's safety. Nevertheless, Cornwell fired two shots at Wells, killing him.⁵ About five seconds passed between the time that Robinson shot Cornwell and Cornwell shot Wells;⁶ only about one second passed between the time that Cornwell entered the doorway to the apartment and he shot Wells. Wells had been in the apartment less than 10 minutes before being shot.

Plaintiffs initiated this lawsuit in the Common Pleas Court for Montgomery County, Ohio, from whence Defendants removed it on the basis of federal question jurisdiction.⁷ See 28 U.S.C. §§ 1331 and 1441. The Plaintiffs bring this action, seeking compensation from Dayton, William McManus ("McManus"),⁸ Cornwell, McCall and Robinson for the losses they (Plaintiffs) allege to have sustained as a result of Wells being shot.⁹ In their Complaint,¹⁰ the Plaintiffs have set forth eight claims for relief, to wit: 1) a claim against Dayton, McManus, Cornwell and McCall, predicated upon the allegation that Cornwell used excessive force to seize Wells, in violation of the Fourth Amendment (First Claim for Relief);¹¹ 2) a negligence claim against Shawn Robinson (Second Claim for Relief); 3) a claim against all Defendants that Wells suffered physical pain and emotional distress as a result of the Defendants actions (Third Claim for Relief); 4) a claim against Dayton and McManus, alleging that they are liable as a result of a pattern or practice of encouraging, tolerating and ratifying the use of excessive force through the failure to discipline or prosecute police officers who previously used excessive force and the failure to investigate such previous incidents (Fourth Claim for Relief); 5) a claim of assault and battery against Cornwell (Fifth Claim for Relief); 6) a claim against Dayton, McManus, Cornwell and McCall under 42 U.S.C. § 1983, apparently predicated upon their First and Fourth Claims for Relief; 7) a wrongful death claim under § 2125.01 of the Ohio Revised Code, against Dayton, McManus, Cornwell and McCall (Seventh Claim for Relief); and 8) a claim for punitive damages against all Defendants (Eighth Claim for Relief).

In its Decision of March 24, 2006 (Doc. # 71), this Court sustained in part and overruled in part the Motion for Summary Judgment (Doc. # 17) filed by Dayton, McManus, Cornwell and McCall. In this Expanded Opinion, the Court sets forth the reasoning and citations of authority which' support that Decision. The Court begins by reviewing the familiar standards which must be applied, whenever it rules upon a motion requesting 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...