Zar v. Payne
| Decision Date | 12 January 2011 |
| Docket Number | Case No. 09–cv–249. |
| Citation | 760 F.Supp.2d 779 |
| Parties | Brandelyn ZAR, Plaintiff,v.Officer Jason PAYNE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
Phillip Douglas Lehmkuhl, Mt. Vernon, OH, for Plaintiff.Kenneth Eugene Harris, Carl Andrew Anthony, Freund, Freeze & Arnold, Columbus, OH, for Defendants.
This matter is before the Court on the Motion of Defendants Jason Payne and Justin Trowbridge for Summary Judgment. Motion, Doc. No. 17. Defendants request summary judgment on all claims against them. Complaint, Doc. No 2. For the reasons that follow, Defendants' motion is GRANTED in part and DENIED in part.
At approximately 10:30 p.m. on April 25, 2008, Htut Zar (“Mr. Zar”) called the Mt. Vernon Police Department and waited outside of his house at 308 East Burgess Street in Mt. Vernon, Ohio for them to arrive. Officers Jason Payne (“Payne”) and Justin Trowbridge (“Trowbridge”) of the Mt. Vernon Police Department responded to Mr. Zar's call and arrived separately.
Upon approaching Mr. Zar, Trowbridge noticed a substance on Mr. Zar's right shoulder and neck that appeared to him to be blood. Both parties agree that Mr. Zar explained that the substance was chocolate but disagree as to the particulars of Mr. Zar's explanation. The Defendants assert, supported by their own sworn affidavits, that Mr. Zar informed the officers that he and his wife, Brandelyn Zar (“Ms. Zar”), had had an argument during which Ms. Zar had thrown a glass dish containing ice cream and chocolate sauce at him. According to the Defendants, Mr. Zar told the officers that he was holding his and Ms. Zar's infant son in his arms when Ms. Zar threw the glass dish at him. Mr. Zar told Trowbridge that he was concerned for the safety of his son, then in the house with Ms. Zar.
The Plaintiff asserts, supported by a sworn affidavit from Mr. Zar, that Mr. Zar told the officers that his wife had thrown a paper cup containing a Wendy's Frosty at a window of the house during an argument. Some of the Frosty had spattered on Mr. Zar. He further asserts in his affidavit that he did not tell the officers that he was concerned for the safety of his child and that he had only called the police for help in getting some of his clothing from the house and for advice on where to spend the night.
While the officers were speaking with Mr. Zar, Ms. Zar was throwing Mr. Zar's belongings onto the front lawn and yelling that she wanted Mr. Zar to leave. When Payne tried to approach Ms. Zar, she closed her door and turned off her interior lights. Payne then knocked on her door. Ms. Zar opened the door in response to the knock with her sister, Kaitlyn Meadway (“Meadway”), standing behind her. Meadway was holding the Zar child in her arms; she and the child were present during the entire encounter. Ms. Zar told Payne that she did not want to talk to the police or to her husband and shut the door. Trowbridge joined Payne at the door and knocked. Ms. Zar again opened the door, stood in her doorway, told the officers she did not want to speak with them, and tried to shut the door.
According to Ms. Zar, and supported by her own affidavit and the affidavits of Mr. Zar and Meadway, before Ms. Zar could close the door, Trowbridge reached into her house, grabbed her wrist, and jerked her outside. Payne grabbed her other wrist and helped Trowbridge pull her from her home. At no time did either officer warn Ms. Zar that she was under arrest or would be arrested. Meadway has stated that the officers' decision to arrest Ms. Zar appeared to her to be the result of an epithet Ms. Zar directed at the officers just before they grabbed her.
The Defendants allege that Ms. Zar was agitated, cursing at the officers, and pointing her finger in Trowbridge's face. Trowbridge decided to place Ms. Zar under arrest for impeding their investigation into the safety of the infant. He informed Ms. Zar that she was under arrest and tried to take hold of her right wrist to secure it. The accounts of the arrest from this point forward diverge even between the Defendants. Trowbridge in his Supplementary Report recounted that Ms. Zar pulled her wrist back, closed her fist, and punched him in the mouth. The officers again grabbed Ms. Zar and moved her away from the house and towards a patrol car. Because Ms. Zar was flailing her body, the officers took her to the ground in their attempt to regain control. Once they had gotten her to the ground, the officers secured her hands behind her back, handcuffed her, and advised her she was under arrest. While trying to walk her to a patrol car, Trowbridge picked Ms. Zar up by the right arm, allowing her to flip around and kick Payne in the throat and face. When this happened, she slipped from Trowbridge's grip and fell to the ground.
Payne reported an account that differs in the details but is materially similar to Trowbridge's. He recounts that Ms. Zar punched Trowbridge in the face after they had both grabbed one of her arms and were escorting her away from the house. The officers continued to escort Ms. Zar towards the patrol car, and Ms. Zar continued to struggle by moving her legs and arms around. Trowbridge then picked Ms. Zar up, she kicked Payne in the throat, and Trowbridge dropped her on the ground. Once Ms. Zar was on the ground, the officers handcuffed her.
The Plaintiff's version, based on the recollections of Meadway and Mr. Zar, 1 presents the picture of two large police officers forcefully throwing around a small woman; Meadway even avers that the officers savagely beat Ms. Zar. The Plaintiff's witnesses recount that the officers tossed Ms. Zar into her yard, face down in the mud; jumped on top of her; and handcuffed her. The officers did not tell her she was under arrest until after she was handcuffed. The Plaintiff admits that she kicked Payne but states that it happened accidentally when the officers picked her up into the air. When Payne was kicked, the officers dropped Mrs. Zar back into the mud, causing her great pain. The Plaintiff asserts that at no time did she punch Trowbridge in the face.2
The Defendants allege that both officers sustained physical injuries and tears in their clothing as a result of their encounter with Ms. Zar. Ms. Zar also claims that she sustained physical injuries as a result of the encounter.
Ms. Zar was arrested for persisting disorderly conduct under Mt. Vernon Ordinance 509.03(E), with resisting arrest under Mt. Vernon Ordinance 525.09, and with assault on a police officer. With the assistance of counsel, the Plaintiff entered a plea of no contest to the charge of persisting disorderly conduct on January 29, 2009. She was found guilty of that charge and sentenced to a fine of $150 plus court costs. On February 20, 2009, the Plaintiff pleaded guilty to one count of obstructing official business in violation of Ohio Rev.Code. Ann. § 2921.31(A) in exchange for the dismissal of the assault charge. The Plaintiff was sentenced on March 17, 2009 to three years of Community Control, thirty days in the Knox County Jail, submission to an out-patient drug and alcohol treatment program, and submission to drug and alcohol use monitoring. The balance of the Plaintiff's jail sentence was suspended on March 23, 2009.
The Plaintiff filed her complaint before this Court on April 1, 2009 against Defendants Jason Payne and Justin Trowbridge. Complaint, Doc. No. 2. She alleges two claims under the Fourth and Fourteenth Amendments to the United States Constitution: (1) that the Defendants unlawfully violated her rights by arresting her in her home without a warrant; and (2) that the Defendants employed unnecessary and unjustified physical force against her. The Plaintiff is seeking compensatory damages, punitive damages, and attorneys' fees and costs. The Defendants filed their Motion for Summary Judgment on March 29, 2010 requesting dismissal of all claims. Motion, Doc. No. 17. This motion has been fully briefed and argued and is now ripe for decision by this Court.
Summary judgment is proper if “there is no genuine issue as to any material fact [such that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). But “summary judgment will not lie if the ... evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The movant therefore has the burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388–89 (6th Cir.1993). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251–52, 106 S.Ct. 2505. But the non-moving party “may not rest merely on allegations or denials in its own pleading.” Fed.R.Civ.P. 56(e)(2); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir.1994). The non-moving party must present “significant probative evidence” to show that there is more than “some metaphysical doubt as to the material facts.” Moore v. Philip Morris Co., 8 F.3d 335, 339–40 (6th Cir.1993). When ruling on a motion for summary judgment, a district court is not required to sift through the entire record to drum up facts that might support the nonmoving party's claim. InterRoyal...
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