Opinion

Eslinger v. City of Kent

Court
District Court, N.D. Ohio
Filed
Apr 17, 2020
Cited by
0 cases
Authority
More cited than 28.0%

“[A] district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded. The court is required, at a minimum, to examine the movant’s motion for summary judgment to ensure that he has discharged that burden.”

How later courts described this case

  • “[A] district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded. The court is required, at a minimum, to examine the movant’s motion for summary judgment to ensure that he has discharged that burden.”
  • first quoting Standifer v. Lacon, 587 F. App’x 919, 920 (6th Cir. 2014); then quoting Scott v. Harris, 550 U.S. 372, 380–81, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (alterations in original)
  • an officer may be liable for only “his own individual conduct and not the conduct of others[]”
  • allegations in a verified complaint “have the same force and effect as an affidavit” for purposes of responding to a motion for summary judgment

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KEVIN N. ESLINGER, ) CASE NO. 5:18-cv-2442

)

PLAINTIFF, ) JUDGE SARA LIOI

)

vs. )

) MEMORANDUM OPINION

CITY OF KENT, et al., )

)

DEFENDANTS. )

Before the Court is the motion for summary judgment filed by defendants, Officer Joseph

Hadaway (“Hadaway”) and Officer Neil Hilbruner (“Hilbruner”) (collectively, “defendants”).

(Doc. No. 33 [“Mot.”].) Pro se plaintiff, Kevin Eslinger (“Eslinger” or “plaintiff”), filed a brief in

opposition.1 (Doc. No. 40 [“Opp’n”].) Defendants filed a reply. (Doc. No. 41 [“Reply”].) For the

reasons set forth herein, defendants’ motion for summary judgment is granted.

I. PROCEDURAL BACKGROUND

On August 7, 2018, Eslinger filed his complaint in state court against the City of Kent

(“Kent”) and two John Doe Kent police officers in connection with a traffic stop and search of his

car two years earlier. He alleged claims under 42 U.S.C. § 1983 for violation of his rights under

the Fourth and Fourteenth Amendments, as well as state-law claims for civil assault and intentional

1 Eslinger’s opposition brief was due by March 4, 2020. On March 9, 2020, he moved for an extension of time. (Doc.

No. 36.) Over defendants’ objection, the Court granted Eslinger until March 25, 2020 to file any opposition, expressly

ordering that no further extension would be granted. Eslinger failed to file an opposition by the assigned date. On

March 26, 2020, however, he sought leave to file his brief instanter, asserting that, although he had endeavored to

timely file his brief in person on March 25, 2020, he was unable to do so due to the court’s closure related to the

COVID-19 pandemic. Over defendants’ objection, the Court granted Eslinger leave to file his opposition brief, finding

that his failure to timely file was due to excusable neglect, and granting defendants leave until April 10, 2020 to file

their reply.

infliction of emotional distress. The matter was timely removed to this Court on the basis of federal

question jurisdiction.

By order dated May 24, 2019 (Doc. No. 12), this Court granted Kent’s unopposed motion

for judgment on the pleadings, ordering judgment in favor of Kent on Eslinger’s § 1983 Monell

claim2 (second cause of action) and his state-law intentional infliction of emotional distress claim

(fourth cause of action), and dismissing his state-law assault claim as time-barred (third cause of

action). The Court also granted Eslinger leave to either file an amended complaint naming the two

John Doe police officers or notify the Court that he did not know their identities, and further

advised that failure to take one of those actions would result in dismissal of the remaining claims

against the Doe defendants for failure to prosecute.

After receiving an extension of time to do so, Eslinger filed his amended complaint (Doc.

No. 16) substituting Hadaway and Hilbruner for the John Doe officers and continuing to include

the already-dismissed City of Kent.3 By order dated August 27, 2019 (Doc. No. 23), the Court

granted Kent’s motion to dismiss all claims against it in the amended complaint.

On February 3, 2020, defendants timely filed the instant motion for summary judgment.

The matter is now ripe for determination.

II. STANDARD OF REVIEW

Under Fed. R. Civ. P. 56(a), when a motion for summary judgment is properly made and

supported, it shall be granted “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An

2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

3 In fact, the amended complaint is actually a duplicate of the original complaint with some of the original information

whited out (e.g., the name of the court and the “John Doe” designations) and replaced with new hand-printed

information. There was no attempt to acknowledge that the City of Kent, and all claims against it, had been dismissed.

2

opposing party may not rely on allegations or denials in its own pleading; rather, by affidavits or

by materials in the record, the opposing party must set out specific facts showing a genuine issue

for trial. Fed. R. Civ. P. 56(c)(1).

“The liberal treatment of pro se pleadings does not require lenient treatment of substantive

law, Durante v. Fairlane Town Ctr., 201 F. App’x 338, 344 (6th Cir. 2006), and the liberal

standards that apply at the pleading stage do not apply after a case has progressed to the summary

judgment stage, Tucker v. Union of Needletrades, Indus., & Textile Employees, 407 F.3d 784, 788–

89 (6th Cir. 2005).” Johnson v. Stewart, No. 08-1521, 2010 WL 8738105, at *3 (6th Cir. May 5,

2010). Further, “‘[this] lenient treatment generally accorded to pro se litigants has limits[,]’

Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citations omitted) . . . [and a pro se

plaintiff’s] complete inattention to the merits of [d]efendants’ summary judgment motion

represents one such limit.” Farah v. Wellington, 295 F. App’x 743, 748 (6th Cir. 2008).

III. FACTUAL BACKGROUND 4

On August 7, 2016 at about 12:30 p.m., Kent police received a 911 call from a concerned,

identified citizen, who reported that he and his father were traveling on State Route 59, observing

a silver Toyota Camry driving behind them erratically. (Doc. No. 33-1, Declaration of Chief

Michelle Lee [“Lee Decl.”] ¶ 3; Audio at 00:06–02:30.) According to the caller, the front fender

of the Camry appeared to be hanging off the car, which was driving “all over the road,”

4 Defendants have manually submitted a video disc containing a copy of the dash-cam video from Hilbruner’s cruiser

recorded on August 7, 2016 (Doc. No. 35 [“Video”]; see also Doc. No. 33-2 ¶ 2), as well as an audio disc containing

a copy of the 911 call received on August 7, 2016 (Doc. No. 34 [“Audio”]; see also Doc. No. 33-1 ¶ 3). The Court has

reviewed these recordings. “‘[W]here the police dash-cam video[s] . . . depict[] all of the genuinely disputed facts,’ .

. . [courts] ‘view[] the facts in the light depicted by the videotape[s].’” Rudlaff v. Gillispie, 791 F.3d 638, 639 (6th Cir.

2015) (first quoting Standifer v. Lacon, 587 F. App’x 919, 920 (6th Cir. 2014); then quoting Scott v. Harris, 550 U.S.

372, 380–81, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (alterations in original)).

3

“approaching real quick,” and “speeding,” with a driver who appeared to the caller to be drunk.

(Id.) Over 2½ minutes into the call, the caller reported that the Camry was about to turn onto River

Street, a one-way street, going the wrong way. (Id. at 2:30.) The caller remarked that he did not

want the driver of the Camry to kill anyone. (Id. at 3:40–3:43.)

Hadaway and Hilbruner were dispatched in response to the 911 call, each in his own

cruiser. (Doc. No. 33-2, Declaration of Officer Neil Hilbruner [“Hilbruner Decl.”] ¶ 3; Doc. No.

33-3, Declaration of Officer Joseph Hadaway [“Hadaway Decl.”] ¶ 2.) When Hilbruner arrived at

River Street, with lights flashing and sirens on, he observed the Camry traveling the wrong way

on River Street, occupied only by the driver (later identified as Eslinger). (Hilbruner Decl. ¶ 3;

Video at 00:07–00:15;5 Lee Decl. ¶ 4 & Ex. 2 [“Police Report”] at 208.6) The front bumper was

noticeably hanging off the front of the Camry. (Video at 00:11.)

Despite the lights and sirens, Eslinger did not stop or pull over; rather, he proceeded

westbound on Haymaker Parkway. (Police Report at 208.) Eslinger drove on the center yellow line

four times and drifted over the center yellow line once, increasing from a speed of 35 mph to 50

mph in 25- and 35-mph zones. (Video at 0:36–2:15; Hilbruner Decl. ¶ 4; Police Report at 208.)

After evading the police for one minute and fifty-three seconds, Eslinger approached the

intersection of W. Main Street and N. Francis Street, where there was a red light governing

oncoming traffic. He swerved into the right lane, then abruptly swerved back into the left lane,

barely avoiding a car stopped in the right lane, and finally came to a stop in the middle of the

intersection. (Hilbruner Decl. ¶ 5; Video at 2:15–2:19.)

5 Citations to the Video are somewhat approximate, given the speed at which the events unfold in the recording; the

citations are close enough for a reviewing court to locate the facts represented.

6 All page number references are to the page identification number generated by the Court’s electronic docketing

system.

4

At this time, neither Hilbruner nor Hadaway knew the reasons for Eslinger’s behavior.

(Hilbruner Decl. ¶ 6; Hadaway Decl. ¶ 3.) A “high risk stop was initiated” (Police Report at 208),

with Hilbruner pointing his pistol at Eslinger and yelling repeatedly to him to put his hands out the

window and throw his keys on the ground (Id.; Video at 2:24–4:00.) Hilbruner also warned

Eslinger: “Any sudden movements will be taken as a threat and you will be shot.” (Video at 2:48–

2:51.)

At first, Eslinger put only his left hand out the window, but after several seconds, he

attempted to comply with Hilbruner’s instructions. (Video at 4:19–4:21.) During this time, the

officers could not tell what Eslinger was doing with his right hand. (Hilbruner Decl. ¶ 7; Hadaway

Decl. ¶ 4); as a result, they both had their firearms pointed at him. (Police Report at 208.)

Both Hilbruner and Hadaway reported that Eslinger was slow to respond to their

instructions and seemed to be struggling and confused. (Id.) When Eslinger first opened the door

of the Camry, he did not get out. (Video at 4:21.) Throughout this entire time, neither officer could

see what Eslinger was doing with his hands. (Hilbruner Decl. ¶ 7; Hadaway Decl. ¶ 4.) Eslinger

appeared to struggle getting out of the Camry, so Hilbruner instructed him to crawl out and lay on

the ground with his hands out. (Video at 4:55–5:00.) Eslinger first stood up, leaning on the door,

but could not get out of the car (Id. at 5:15); he then knelt down and laid on his side on the ground,

but without closing the car door, despite instructions to do so, still retaining access to whatever

may have been in the car. (Video at 5:34–5:39.) To the officers, he appeared intoxicated. (Police

Report at 208.)

While Eslinger remained on the ground, Hilbruner, Hadaway, and Officer Oldham (who

had arrived on the scene) approached him. (Video at 5:47–5:50.) Oldham assisted Eslinger to a

prone position with his hands behind his back, while Hadaway checked the inside of the car. (Id.

5

at 5:50–5:58.) Oldham handcuffed Eslinger. (Id. at 6:01.) At about the same time, Hadaway

noticed that Eslinger’s leg was wrapped with surgical tape and he was wearing a foot brace/boot.

(Police Report at 208.) Hadaway could not smell any alcohol, but he noticed that Eslinger was

“sweating heavily and smelled as if he had urinated and/or defecated on himself.” (Id.) Hadaway

asked Eslinger if he had any medical problems and Eslinger indicated that he was diabetic and was

having a diabetic emergency. (Id.) He told Hilbruner that he had not taken his medication that

morning. (Id.)

Eslinger was immediately un-cuffed and the officers called an ambulance; in fact, Eslinger

was handcuffed for only nineteen (19) seconds. (Id.; Video at 6:02–6:21.) The ambulance arrived

and EMS transported Eslinger to the hospital. (Police Report at 208.)

IV. LAW AND ANALYSIS

As an initial matter, the Court must address the sufficiency of Eslinger’s opposition, which

contains not a single citation to any Rule-56-type evidence, including defendants’ evidence.

Eslinger has declared in his brief that various facts asserted by defendants with reference to the

record are false; but he has supplied no affidavit of his own nor any unsworn declaration under

penalty of perjury pursuant to 28 U.S.C. § 1746. His amended complaint is not verified (nor was

the original complaint) and, therefore, cannot serve as an opposing affidavit sufficient to rebut the

defendants’ summary judgment motion. See Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993)

(citing Williams v. Browman, 981 F.2d 901, 905 (6th Cir. 1992) (allegations in a verified complaint

“have the same force and effect as an affidavit” for purposes of responding to a motion for

summary judgment)).

Evidentiary submissions by a party opposing a motion for summary judgment do

not necessarily need to be in a form that is admissible at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986). The party opposing summary judgment must,

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however, set forth enough evidence that will be admissible at trial to demonstrate

that a genuine dispute of material fact exists, and that a trial is necessary to resolve

the dispute. Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009).

Hurick v. McKee, No. 17-1396, 2018 WL 4908138, at *3 (6th Cir. Apr. 30, 2018), reh’g denied

(Aug. 8, 2018). As noted by defendants throughout their reply brief, Eslinger’s opposition,

completely lacking in Rule 56 submissions,7 does not meet this standard and, in effect, amounts to

no opposition at all. Although Eslinger is a pro se litigant, he is still required to comply with civil

rules and court orders. Allen v. Stark State Coll., No. 5:17CV02706 (Lead Case), 2019 WL

3387772, at *9 (N.D. Ohio July 26, 2019).

That said, even where there is no opposition to a summary judgment motion, the Court

must still consider the supporting evidence submitted by the movant and determine whether the

movant has met its burden. Byrne v. CSX Transp., Inc., 541 F. App’x 672, 675 (6th Cir. 2013)

(citing Delphi Auto. Sys., LLC v. United Plastics, Inc., 418 F. App’x 374, 380–81 (6th Cir. 2011)

(“[A] district court cannot grant summary judgment in favor of a movant simply because the

adverse party has not responded. The court is required, at a minimum, to examine the movant’s

motion for summary judgment to ensure that he has discharged that burden.”)).

With that in mind, the Court turns to the individual arguments raised by the defendants.

7 The Court notes that, in the context of his opposition to summary judgment on his claim of intentional infliction of

emotional distress, Eslinger asserts that he had no knowledge of the discovery cutoff date. (Opp’n at 254.) During a

telephone conference with Magistrate Judge Burke on January 15, 2020, when he informed defendants’ counsel that

he was drafting some interrogatories, Magistrate Judge Burke advised him that discovery had closed on December 31,

2019. Nonetheless, the minutes of that proceeding indicate that defendants’ counsel agreed to respond to any

interrogatories that plaintiff would send with a document. (Doc. No. 32, Minute Order at 177.) The record does not

reflect the subsequent service of any interrogatories by Eslinger. There was also discussion, reflected in the minutes

of the January 15th conference, regarding the dash-cam video, with defendants’ counsel agreeing to assist Eslinger in

making sure he had a copy that included audio. There is nothing in this record to suggest that plaintiff was not allowed

sufficient opportunity to conduct timely discovery. Further, the docket shows that all orders, including scheduling

orders, were sent to his address of record, with no mail returned as undeliverable. His belated undocumented and

unsupported assertion that his mail is not delivered properly (see Opp’n at 254) is to no avail at this juncture.

7

A. Official Capacity Claims

Eslinger is suing Hilbruner and Hadaway in both their individual capacities and their

official capacities as City of Kent police officers. A claim against a defendant in his official

capacity “is, in all respects other than name, to be treated as a suit against the entity.” Spithaler v.

Smith, -- F. App’x --, 2020 WL 599025, at *2 (6th Cir. Feb. 7, 2020) (quoting Kentucky v. Graham,

473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985)).

This Court has already twice dismissed all claims against Kent. Therefore, any claims

against the officers in their official capacities fail as a matter of law and are dismissed.

B. Fourteenth Amendment Excessive Force Claim

“[A]ll claims that law enforcement officers have used excessive force . . . in the course of

an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard[.]” Graham v. Connor, 490 U.S. 386, 395, 109

S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (emphasis omitted).

Here, Eslinger was a “free citizen” when the traffic stop occurred. The Fourteenth

Amendment does not apply to this situation, except to the extent it makes the Fourth Amendment

applicable to the states. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).

Therefore, to the extent the first cause of action is premised upon the Fourteenth

Amendment, Hilbruner and Hadaway are entitled to summary judgment and the same is granted.

C. Fourth Amendment Excessive Force Claim

“[A] free citizen’s claim that law enforcement officials used excessive force in the course

of making an arrest, investigatory stop, or other ‘seizure’ of his person . . . [is] properly analyzed

under the Fourth Amendment’s ‘objective reasonableness’ standard[.]” Graham, 490 U.S. at 388.

“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a

8

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396. “[T]he

‘reasonableness’ inquiry in an excessive force case is an objective one: the question is whether the

officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.” Id. at 397.

The proper application of the reasonableness test “requires careful attention to the facts and

circumstances of each particular case, including the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Id. at 396. “This standard contains a built-

in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in

light of the circumstances of the particular case. Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir.

2002) (citing Graham, 490 U.S. at 396).

In his opposition brief, Eslinger claims that “[t]he facts are as plain as mud that [he] was

too weak to meet any of [the] criteria for active resistance, had no intent to do so and frankly didn’t

have the strength to actively resist even if he wanted to do so.” (Opp’n at 256.) Although, as it

turned out, Eslinger was experiencing a medical emergency that possibly caused his behavior, the

only relevant inquiry for the “reasonableness” analysis is whether the officers knew of Eslinger’s

condition prior to stopping him. They did not. The officers knew only what had been conveyed to

them by the dispatcher (from the 911 caller), what they themselves observed as they pursued

Eslinger, and at the scene, that he failed to comply with the orders given. Because Eslinger did not

follow the officers’ directions regarding getting out of his vehicle, throwing his keys on the ground,

letting them see both of his hands at all times, and the like, it was objectively reasonable for the

officers, under those circumstances, to act in the manner they did, as evidenced by the dash-cam

video. Houston v. Clark Cty. Sheriff Deputy John Does 1-5, 174 F.3d 809, 814–15 (6th Cir. 1999)

9

(“when police officers reasonably fear that suspects are armed and dangerous, they may order the

suspects out of a car and may draw their weapons when those steps are ‘reasonably necessary for

the protection of the officers[]’”). Immediately upon being informed by Eslinger that he was a

diabetic and that he was in an emergency situation, Oldham uncuffed Eslinger and called an

ambulance, which took him for medical care.

The defendants are entitled to summary judgment on Eslinger’s Fourth Amendment claim

under § 1983.8

D. Qualified Immunity

“Qualified immunity shields federal and state officials from money damages unless a

plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and

(2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-

Kidd, 563 U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011) (citing Harlow v. Fitzgerald,

457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). “Once a defendant invokes qualified

immunity, the plaintiff bears the burden to show that qualified immunity is inappropriate.” Quigley

v. Tuong Vinh Thai, 707 F.3d 675, 681 (6th Cir. 2013) (citing Silberstein v. City of Dayton, 440

F.3d 306, 311 (6th Cir. 2006)). “The qualified immunity standard ‘gives ample room for mistaken

judgments’ by protecting ‘all but the plainly incompetent or those who knowingly violate the

law.’” Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991) (quoting

Malley v. Briggs, 475 U.S. 335, 343, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)).

8 To the extent any actions were taken against Eslinger by a non-party officer (e.g., Officer Oldham), these two

defendants cannot be held liable. Pollard v. City of Columbus, 780 F.3d 395, 402 (6th Cir. 2015) (an officer may be

liable for only “his own individual conduct and not the conduct of others[]”) (citation omitted).

10

Even if Hadaway and Hilbruner were not entitled to summary judgment on the merits of

each of Eslinger’s federal claims, they would enjoy qualified immunity. Eslinger has failed to

establish the contrary.

E. State Law Claims

“A federal court exercising supplemental jurisdiction over state law claims is bound to

apply the law of the forum state to the same extent as if it were exercising its diversity jurisdiction.”

Super Sulky, Inc. v. U.S. Trotting Ass’n, 174 F.3d 733, 741 (6th Cir. 1999).

Under Ohio law, a claim of assault and battery must be brought within one (1) year after

the cause of action accrued. Ohio Rev. Code § 2305.111(B). Eslinger’s cause of action accrued on

August 7, 2016; he brought this claim on August 7, 2018, one (1) year too late. Therefore,

Hilbruner and Hadaway are entitled to summary judgment on the third cause of action and the

same is granted.9

In addition, although “‘[g]enerally, the applicable statute of limitations for a claim of

intentional infliction of emotional distress is four years[] . . . when the acts underlying the claim

would support another tort, the statute of limitations for that other tort governs the claim for

intentional infliction of emotional distress.’” Crist v. Pugin, No. 3:08 CV 501, 2008 WL 2571229,

at *3 (N.D. Ohio June 25, 2008) (quoting Stafford v. Clever Investigations Corp., No. 06AP-1204,

2007 WL 2800333, at *2 (Ohio Ct. App Sept. 27, 2007)). “[I]n determining which limitation period

will apply, courts must look to the actual nature or subject matter of the case, rather than to the

form in which the action is pleaded. The grounds for bringing the action are the determinative

9 In his opposition, Eslinger fails to address the statute of limitations, arguing only on the merits that, by pulling their

guns on him, the officers “put him ‘in fear of his life {and} [sic] his safety.’” (Opp’n at 253.) His merits argument is

unavailing since his claim is time-barred.

11

factors, the form is immaterial.” Hambleton v. R.G. Barry Corp., 465 N.E.2d 1298, 1302 (Ohio

1984) (citation omitted).

Here, the claim for intentional infliction of emotional distress (“ITED”) is premised upon

“acts of intentional contact [subduing and handcuffing] which, unless privileged, constitute a

battery.” Love v. City of Port Clinton, 524 N.E.2d 166, 167 (Ohio 1988). “Where the essential

character of an alleged tort is an intentional, offensive touching, the statute of limitations for assault

and battery governs[,]” id. at 168, even if the touching is pled as another type of action. Therefore,

the one-year statute of limitations applies and Eslinger brought the IED claim too late. Hilbruner

and Hadaway are entitled to summary judgment on the fourth cause of action and the same shall

be granted.!°

V. CONCLUSION

For the reasons set forth, defendants’ motion for summary judgment is granted. This case

is dismissed.

IT IS SO ORDERED.

Dated: April 17, 2020 S &

HONORABLE SARA LIOI

UNITED STATES DISTRICT JUDGE

10 As with the assault claim, Eslinger’s argument with respect to the ITED claim fails to even mention the statute of

limitations. Instead, he insists that his allegations “‘state[] a claim for Intentional Infliction of Emotional Distress.”

(Opp’n at 253 (citing Buenrostro v. Collazo, 777 F. Supp. 128, 134 (D.P.R. 1991)).) Buenrostro, a case out of Puerto

Rico, is not controlling in this federal court. In any event, Buenrostro involved a question of whether family members

present when Buenrostro was arrested in his home without a warrant had standing to state their own individual § 1983

and state tort claims, rather than attempting to vicariously “piggy-back” onto Buenrostro’s claims. On the page cited

by Eslinger, the court held: “That the family members cannot claim vicariously on Mr. Buenrostro’s section 1983 suit

does not mean that his suit in any sense divests them of their own individual actions. There remains, of course, the

matter of whether the family members can prove these claims factually, but we find that they have stated the cause of

action sufficiently.” Buenrostro, 777 F. Supp. at 134. This does not help Eslinger.

12

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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