Williams v. Schismenos

• Citation: 258 F.Supp.3d 842
• Decision Date: 28 June 2017
• Docket Number: CASE NO. 5:15-cv-2345.
• Parties: Edward Brent WILLIAMS, et al., Plaintiffs, v. Donald SCHISMENOS, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

258 F.Supp.3d 842

Edward Brent WILLIAMS, et al., Plaintiffs,

v.Donald SCHISMENOS, et al., Defendants.

CASE NO. 5:15-cv-2345.

United States District Court, N.D. Ohio, Eastern Division.

Signed June 28, 2017

Andrea L. Whitaker, William T. Whitaker, Jr., Law Office of William T. Whitaker, Akron, OH, for Plaintiffs.

Benjamin R. Sorber, J. Reid Yoder, Thomas M. DiCaudo, DiCaudo Pitchford & Yoder, John C. Reece, Michael J. Defibaugh, Akron, OH, for Defendants.

MEMORANDUM OPINION

HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE

Before the Court are two dispositive motions. Defendants City of Akron. ("City") and Jesse Lesser ("Lesser") (collectively "Akron defendants") have moved for summary judgment. (Doc. No. 28 ["Akron MSJ"].) Plaintiffs oppose this motion (Doc. No. 60 ["Opp'n Akron MSJ"] ), and Akron defendants have filed a reply. (Doc. No. 64 ["Akron Reply"].) Defendant Donald Schismenos ("Schismenos") also seeks summary dismissal of the claims against him. (Doc. No. 30 ["Schismenos MSJ"].) Plaintiffs oppose this motion, as well (Doc. No. 61 ["Opp'n Schismenos MSJ"] ), and Schismenos has replied. (Doc. No. 65 ["Schismenos Reply"].) For the reasons to follow, the motions of Akron defendants and Schismenos for summary judgment are granted, and this case is dismissed.

I. BACKGROUND

The unfortunate encounter between plaintiffs and members of the Akron Police Department that brings the parties to federal court today occurred more than twenty years ago. In the evening hours of October 2, 1996, plaintiff Edward Brent Williams ("Edward") received a call from his then-girlfriend (now spouse) plaintiff Theresa M. Williams ("Theresa") (collectively "plaintiffs") that the couple's infant son, Edmund Williams ("Edmund"), was having difficulty breathing. (Doc. No. 60–1 (Affidavit of Theresa M. Williams ["T. Williams Aff."] ) ¶¶ 2, 4.) The child suffered from asthma

and had been seen earlier in the day by a visiting nurse, who had advised Theresa to take Edmund to the hospital if his condition worsened. (Id. ¶¶ 2, 3; see also Doc. No. 28–1 (Deposition of Edward Brent Williams ["E. Williams Dep."] ) at 43¹ (describing his son's asthma

as "slight").)

At the time of the call, Theresa was visiting with her mother and had the "primary family car" with her. (T. Williams Aff. ¶¶ 5, 6.) Because she wanted to tend to Edmund on the trip to the hospital, Theresa asked Edward to drive. (Id. ¶ 6.) According to plaintiffs, this necessitated Edward driving "a car that had just gotten back from a repair shop." (Id. ) Plaintiffs do not dispute that: Edward did not have his driver's license with him, the tags on the vehicle he was driving had expired, and the light above the license plate of his car had gone out. (E. Williams Dep. at 64, 65, 67.)

Officers Schismenos and Lesser were patrolling the area near downtown Akron when they observed the vehicle driven by Edward and on its way to Akron Children's Hospital. Much of what happened next was captured by a personal video camera owned and installed by Officer Schismenos. At this point, it is necessary to pause to address the treatment of such evidence. The Supreme Court has definitively addressed the role of video evidence on summary judgment. In Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Court held that "[w]hen opposing parties tell two very different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purposes of ruling on a motion for summary judgment." According to the Sixth Circuit:

Scott's holding is twofold. First, Scott stands for the proposition that witness accounts seeking to contradict an unambiguous video recording do not create a triable issue. [ Scott , 550 U.S.] at 380–81, 127 S.Ct. 1769....Second, Scott reaffirmed the holdings of Matsushita [Elec. Indus., Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ] and Anderson [v. Liberty Lobby, Inc. , 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ] that, in disposing of a motion for summary judgment, a court need draw only reasonable inferences in favor of the nonmoving party; it need not construe the record in such a manner that is wholly unsupportable—in the view of any reasonable jury—by the video recording.

Kinlin v. Kline , 749 F.3d 573, 576 (6th Cir. 2014) (quotation marks and further citations omitted) (emphasis in original). So while the parties present their own, often conflicting, narratives of the encounter, the Court will consider the remaining facts in a light most favorable to plaintiffs, while keeping in mind that it will not credit any disputed facts that clearly contradict the video footage of the parties' encounter.² See, e.g., Lewis v. Charter Twp. of Flint , 660 Fed.Appx. 339, 343 (6th Cir. 2016) (noting that "the video does not clearly show that [the suspect] ‘targeted’ [the officer] when he accelerated the vehicle and attempted to flee").

At the beginning of the relevant video footage, the officers are following plaintiffs' vehicle, discussing between themselves the vehicle's make and model. (Doc. No. 29 (Video) at 11:18–33.) One officer is heard speaking with dispatch and requesting a search of the vehicle's license plate number. (Id. at 11:34–38.) Noting that the license plate is not lit, one of the officers indicates that the temporary tag on the vehicle has expired. (Id. at 11:43–12:00.) At this point, the police cruiser's siren is audible and its lights are visible, and plaintiffs' vehicle comes to a complete stop in front of the cruiser. (Id. at 12:02–08.) One of the officers uses the public address speaker system to instruct Edward to pull over into the right-hand lane. (Id. 12:14 & 18.) While Edward initially puts on his blinker to indicate a right hand turn, he ultimately puts on his left blinker and turns left onto a side street where he immediately comes to a complete stop. (Id. 12:19–12:34.)

The officers exit their cruiser. Officer Lesser approaches the driver's side and begins saying something inaudible to Edward, while Officer Schismenos commences a conversation with Theresa. (Id. at 12:42–51.) While one of the officers asks Edward to turn off the vehicle, Theresa advises that she has a sick child and that she and Edward are en route to the hospital. (Id. at 13:00–09.) Officer Schismenos then attempts to gather more information about Edmund. Though he notes that Edmund "doesn't appear to have any problems," Officer Schismenos agrees to call an ambulance, "just to be sure." (Id. at 14:00–02.) Subsequently, Officer Schismenos is heard speaking on his radio and requesting emergency medical assistance for Edmund.

While the conversation between Officer Schismenos and Theresa is developing on the passenger side of the vehicle, Officer Lesser appears to be having difficulty extracting information from Edward. He tells Edward that he does "not know what is going on inside the car until [he] find[s] out." (Id. at 13:16–19.) He explains he pulled the vehicle over because the license plate had expired and the light above the license plate is out. He further notes that Edward does not have his driver's license on his person, and advises him that the failure to have a driver's license in the car is an "arrestable offense." (Id. at 13:30.) Officer Lesser emphasizes that Edward does not "hear what he is saying," and ultimately notes that Edward is being "totally uncooperative." (Id. at 14:39.) His partner, Schismenos, suggests to Officer Lesser that he take Edward out of the vehicle. (Id. at 14:40.) Officer Lesser opens the door and instructs Edward to step out of the vehicle. Edward's hand is seen from inside the vehicle slamming the car door shut. (Id. at 14:52–53.) When Officer Lesser tells Edward through the shut door that he "will not tell him again" to exit the vehicle, Edward is heard to say "What's the problem, man?" (Id. at 14:58.)

Officer Schismenos comes to the driver's side door and opens it, shining his flashlight on Edward. One of the officers tells Edward that he "is going to be sorry" if he does not immediately step out of the vehicle. Still arguing with the officers, Edward exits the vehicle and is instructed to place his hands on the roof of the car. He places one hand on the roof, but keeps his other hand free as he continues to complain. When the officers attempt to place his hands in cuffs, Edward is heard to say "Hit my ass" with mace, and he begins to resist efforts to place the handcuffs on him.³ (Id. at 15:08.) He yells at the officers that his son is in the car and that he is not going "fuck" anywhere with them. (Id. at 15:15.)

The officers wrestle Edward to the ground, and only part of each participant remains in view on the video over the next several minutes as the scuffle continues. Williams is eventually seen standing back up in full view of the camera, as Officer Lesser administers several abdominal strikes, first with his hands and later with a baton, and the strikes are accompanied by commands for Edward to fall to the ground. (Id. , beginning at 16:04.) The strikes appear to have little effect on Edward, who continues to kick the officers. The officers repeat the instruction to Edward to drop to the ground, and, while at one point he indicates that he will, he continues to resist the baton strikes. Throughout the encounter, Theresa is heard screaming—first while she is still inside the car and later after she exited the vehicle.

Ultimately, Edward and the officers return to the ground and out of view of the video. While the participants continue to yell, police sirens can also be heard and several uniformed police officers and an EMS worker are seen joining the fray. A voice is heard instructing Edward to "put your fucking arm behind your back." (Video at 17:32.) Six minutes after the scuffle began, a voice asks if "you got it?" and several officers disperse. As the EMS workers check on the vehicle's...