“where an arrestee poses no threat to others and is not trying to escape, an ‘unprovoked and unnecessary blow’ violates the Fourth Amendment.”
How later courts described this case
- “where an arrestee poses no threat to others and is not trying to escape, an ‘unprovoked and unnecessary blow’ violates the Fourth Amendment.”
Written by the judges who cited it.
The opinion
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MASON H. BRUMBACH, ) CASE NO. 4:24-CV-285
ADMINISTRATOR OF THE )
ESTATE OF FRED HENRY WILD, ) JUDGE BENITA Y. PEARSON
DEC., )
)
Plaintiff, )
)
v. )
) MEMORANDUM OF OPINION
OFFICER SHANE SMITH et al., ) AND ORDER
) [Resolving ECF No. 24]
Defendants. )
Pending before the Court is Plaintiff Mason H. Brumbach, Administrator of the Estate of
Fred Henry Wild, Decedent’s Motion for Leave to Amend Second Amended Complaint; and to
File Third Amended Complaint, Instanter (ECF No. 24). Defendant Sergeant Bonar opposed
Plaintiff’s Second Motion for Leave to Amend Complaint. (ECF No. 25). Plaintiff replied.
(ECF No. 26). After considering the applicable filings and case law, the Court grants Motion for
Leave to Amend Second Amended Complaint; and to File Third Amended Complaint, Instanter.
I. Background
Before this action, the Court dismissed Brumbach’s claims against Defendant Bonar in
the first Amended Complaint and proposed Second Amended Complaint, because they consisted
of group pleadings and conclusory allegations which cannot sustain an actionable § 1983 claim.
See 09/27/2024 Memorandum of Opinion and Order (ECF No. 13); 11/08/2024 Memorandum of
Opinion and Order (ECF No. 23). In those prior pleadings, Brumbach tried to hold each of the
Defendants liable for the same conduct without connecting each Defendant’s personal
involvement to the alleged use of excessive force.
Brumbach moves pursuant to Fed. R. Civ. P. 15(a)(2) for leave to amend his Second
Amended Complaint (ECF No. 24), and to file his accompanying Third Amended Complaint
(ECF No. 24-1). Brumbach asserts that his request “is made in good faith, without undue delay
or prejudice to the Defendants; and for the purpose of stating actionable claims against each and
every Defendant, in consequence of the Court’s 11/8/24 Order to the contrary.” ECF No. 24 at
PageID #: 154.
II. Legal Standard
“[A] party may amend its pleading only with the opposing party's written consent or the
court's leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). “Because Rule 15(a)(2) directs courts to ‘freely give leave when justice so requires,’
the rule embodies a ‘liberal amendment policy.’” Brown v. Chapman, 814 F.3d 436, 442–43
(6th Cir. 2016) (quoting Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)). “Despite this
policy, denial may be appropriate when there is ‘undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the amendment, futility of
amendment, etc.’” Id. (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The Sixth Circuit
has held it is not appropriate to dismiss even improperly pled claims with prejudice without
allowing the party to correct a pleading deficiency. U.S. ex rel. Bledsoe v. Cmty. Health Sys.,
Inc., 342 F.3d 634, 644 (6th Cir. 2003).
III.
Discussion
To correct his pleading deficiencies, Brumbach alleges that Officer Shane Smith, Deputy
Dennis Garito, Sergeant Cody Dean, Officer Jarett Pishotti, and Sergeant Jason Bonar each fired
their weapon into Plaintiff’s Decedent, causing him injury. ECF No. 24-1 at PageID #: 155-56.
Defendant Bonar responds that Brumbach’s newest pleading fails to make an actionable
claim, because it “does not fix the improperly group-pleaded allegations which fail to give notice
of the specific conduct that gave rise to decedent’s injury. Nor does it provide any additional
factual allegations to reinforce Plaintiff’s claims against Defendant Bonar.” ECF No. 25 at
PageID #: 159. The Court disagrees.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when
construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws
of the United States (2) caused by a person acting under the color of state law.” Heyne v. Metro.
Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir. 2011) (citation omitted).
“When a free citizen claims that a government actor used excessive force during the
process of an arrest, seizure, or investigatory stop, we perform a Fourth Amendment inquiry into
what was objectively “reasonable” under the circumstances.” Coley v. Lucas Cnty., Ohio, 799
F.3d 530 (6th Cir. 2015) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).
Furthermore, a Plaintiff “must allege, with particularity, facts that demonstrate what each
defendant did to violate the asserted constitutional right[.]” Greer v. City of Highland Park,
Mich., 884 F.3d 310, 315 (6th Cir. 2018) (emphasis in original).
The Court finds that the proposed Third Complaint plausibly alleges that Defendant
Bonar violated decedent’s Fourth Amendment rights, because he allegedly discharged his
weapon into the unarmed decedent in pursuit of an arrest. See Coley, 799 F.3d at 539 (“where an
arrestee poses no threat to others and is not trying to escape, an ‘unprovoked and unnecessary
blow’ violates the Fourth Amendment.”) Brumbach asserts that each defendant i.e., Officer
Shane Smith, Deputy Dennis Garito, Sergeant Cody Dean, Officer Jarett Pishotti, and Sergeant
Jason Bonar fired their weapon into the unarmed decedent while pursuing an arrest. ECF No.
24-1 at PageID #: 155-56.
Accordingly, the Court grants Plaintiff Mason H. Brumbach, Administrator of the Estate
of Fred Henry Wild, Decedent’s Motion for Leave to Amend Second Amended Complaint; and
to File Third Amended Complaint, Instanter (ECF No. 24).
IT IS SO ORDERED.
January 21, 2025 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge