Westbrook v. City Of Cincinnati

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

SHERMAN WESTBROOK,

Plaintiff,

Case No. 1:21-cv-476

v.

JUDGE DOUGLAS R. COLE

CITY OF CINCINNATI, et al.,

Defendants.

OPINION AND ORDER

Plaintiff Sherman Westbrook claims that Defendants Rasheen Jennings,

Kenneth Dotson, and Brandon Dean (the Officers), violated the Fourth Amendment’s

prohibition on excessive force when Jennings tased him during the course of an

arrest, and Dotson and Dean failed to intervene. The Officers now move for summary

judgment. And because Westbrook filed his response in opposition late, the Officers

further move to strike Westbrook’s response. For the reasons more fully discussed

below, the Court DENIES Defendants’ Motion to Strike Plaintiff’s Memorandum in

Opposition to Defendants’ Motion for Summary Judgment (Doc. 37), but GRANTS

Defendants’ Motion for Summary Judgment (Doc. 30), and DISMISSES this case,

albeit WITHOUT PREJUDICE.

BACKGROUND

On July 26, 2019, Officers Jennings, Dotson, Dean, and Bolte1 arrested

Westbrook at his then-girlfriend’s apartment in Cincinnati, Ohio. (Def.’s Proposed

1 Westbrook did not name Officer Jason Bolte as a Defendant. (See generally Doc. 1).

Undisputed Facts, Doc. 31, #1241).2 At some point while trying to effectuate the

arrest, Jennings tased Westbrook. (Id. at #1243–44). All parties agree about those

facts. But the Officers and Westbrook tell very different stories about how the arrest

and tasing unfolded. The Court relays each account in turn.

Start with the Officers’ version of events, which begins outside the then-

girlfriend’s apartment building. (Jennings Depo., Doc. 20, #171; Dotson Depo., Doc.

21, #332; Bolte Depo., Doc. 22, #520; Dean Depo., Doc. 23, #701–02). According to the

Officers, when they arrived at the apartment building, Westbrook noticed them and

fled inside. (Doc. 20, #174; Doc. 21, #333; Doc. 22, #521; Doc. 23, #704–05). Jennings

yelled at Westbrook to stop, and Dotson warned him that they would tase him if he

didn’t. (Doc. 20, #174; Doc. 21, #333–34). But Westbrook didn’t stop, so the Officers

followed him. (Doc. 20, #177–78; Doc. 21, #333–34; Doc. 23, #707–08). Jennings and

Dotson reached Westbrook just as he was shutting the apartment unit’s door, at

which point they forced the door open, knocking it off its hinges. (Doc. 20, #180–84;

Doc. 21, #336–37). Dean arrived soon after. (Doc. 23, #708–09). Once inside the

apartment unit, Dotson observed Westbrook “coming from behind” with “his arms []

open” as if ready to tackle someone or to do a “double leg takedown.” (Doc. 21, #340).

So did Jennings, who noticed Westbrook “in a crouching position [which suggested

that Westbrook] was about to tackle [him].” (Doc. 20, #184). In response, Jennings

2 Pursuant to the Court’s Civil Standing Order (I)(F)(2)(a)–(c), the Officers filed a list of

Proposed Undisputed Facts (Doc. 31) along with their Motion for Summary Judgment (Doc.

30). Westbrook admitted many of those facts. (Doc. 35, #1263 (admitting to paragraphs 1–5,

13–16, and 29–35)). Unless otherwise noted, the Court cites the Officers’ proposed list only

for admitted facts.

deployed his taser. (Id. at #181). But instead of the taser barbs hitting Westbrook’s

body, where Jennings says he aimed, the barbs struck Westbrook’s face. (Id.).

According to the Officers, despite being tased, Westbrook didn’t relent. He

continued to “struggle and fight.” (Id. at #181–82). Because Westbrook “refus[ed] to

put his hands behind his back” and “resist[ed],” Jennings continued deploying the

taser while Dean and Dotson placed Westbrook in handcuffs. (Doc. 20, #190–91; Doc.

21, #352, 356; Doc. 23, #713–14). According to Jennings, Westbrook could have

complied with the Officers’ commands and put his arms behind his back even while

being tased. (Doc. 20, #207). Dean concurred that Westbrook resisted arrest. (Doc. 23,

#728). Bolte, who didn’t enter the apartment unit until after the tasing, interviewed

everyone involved in the incident. (Doc. 22, #522–23, 526–34). Based on those

interviews, he issued a Use of Force Report, which concluded that Jennings’ use of

the taser complied with the Cincinnati Police Department’s policy. (Doc. 22-1, #604–

06).

Westbrook remembers things differently. To start, he says that he was already

inside the apartment unit when he heard the Officers at the door. (Westbrook Depo.,

Doc. 29, #1155). As he approached the door to investigate, the Officers forced their

way through, pulling the door off its hinges and pinning Westbrook behind the door.

(Id. at #1104). Then, while still pinned, Westbrook says Dotson and Dean started

grabbing for his hands. (Id. at #1104, 1138–39). As they did, they told him to “stop

resisting,” to which he replied that he wasn’t resisting, but rather, that they were

“pulling [him] back and forth.” (Id. at #1104–05, 1140). At that point, Westbrook

recalls Dean instructing Jennings to tase Westbrook. (Id. at #1105, 1139). Jennings

then deployed his taser and told Westbrook to “stop moving.” (Id. at #1140). At the

time Jennings tased Westbrook, the Officers had handcuffed one of Westbrook’s

hands. (Id. at #1164). And sometime during the commotion, Westbrook had become

unpinned, though he doesn’t recall precisely what happened with the door. (Id.). In

any event, the taser barbs hit Westbrook’s face, causing him to fall to the floor and

defecate on himself. (Id. at #1105).

After the tasing and handcuffing, the parties’ stories reconverge. The Officers,

having realized that the taser barbs were lodged near Westbrook’s eye and lip, called

for the paramedics. (Id. at #1105; Doc. 20, #189, 194; Doc. 21, #356–57). The

paramedics then transferred Westbrook to the hospital where doctors surgically

removed the barb near his eye. (Doc. 31, #1245).

As a result of all that, Westbrook was charged in the Hamilton County

Municipal Court with three crimes. (Id.). First, criminal trespass for “enter[ing] the

[apartment building] after being evicted, and warned several times not to return.”

Criminal Compl., State v. Westbrook, No. 19B19088A (Hamilton Cnty. Mun. Ct. July

26, 2019); (Doc. 30-1, #1228). Second, resisting arrest for “attempt[ing] to tackle

Officer Jennings.” Criminal Compl., State v. Westbrook, No. 19B19088B (Hamilton

Cnty. Mun. Ct. July 26, 2019); (Doc. 30-1, #1229). And third, obstructing official

business for “fle[eing] on foot from police officers during an investigation of Drug

Trafficking at 4047 Reading Road.” Criminal Compl., State v. Westbrook, No.

19B19088C (Hamilton Cnty. Mun. Ct. July 26, 2019); (Doc. 30-1, #1230). Westbrook

ultimately pleaded no contest to each of the three crimes, and the trial judge found

him guilty of each. (Doc. 30-2, #1232, 1234–35; Doc. 31, #1245–46). Westbrook has

not challenged those convictions. (Doc. 31, #1246).

He did, however, avail himself of an alternative course of action. Namely, he

filed this lawsuit on July 16, 2021, alleging, among other things,3 that the Officers

used excessive force when Jennings tased him and Dotson and Dean failed to

intervene. (Doc. 1, #3–5).

The Officers now move for summary judgment. (Doc. 30). They press three

arguments: (1) Westbrook’s no-contest plea and guilty convictions judicially estop

him from challenging those findings here; (2) under Heck v. Humphrey, Westbrook

cannot bring this excessive force claim because it would “necessarily imply the

invalidity” of his state conviction, and in particular, his conviction for resisting arrest;

and (3) even if Westbrook clears those first two hurdles, the Officers are nonetheless

entitled to qualified immunity. (Id. at #1217–26).

Westbrook responded—five days late—arguing that genuine disputes of

material fact preclude summary judgment on all three fronts. (See generally Doc. 35).

Given that Westbrook responded after the deadline the local rules impose, see

S.D. Ohio Civ. R. 7.2(a)(2), the Officers moved to strike Westbrook’s response. (Doc.

37). Westbrook opposes the motion to strike on the grounds that the tardy filing was

3 Westbrook also brought claims for intentional infliction of emotional distress, negligent

retention, violation of 42 U.S.C. § 1983, and violation of 42 U.S.C. § 1988. (Doc. 1, #5–8). But

the Court dismissed those claims, leaving only his excessive force claim. (Doc. 10). He also

initially named the City of Cincinnati as a Defendant. (Doc. 1, #2). In the same Opinion and

Order that the Court dismissed Westbrook’s non-excessive force claims, it also dismissed the

City of Cincinnati as a Defendant. (Doc. 10).

an “inadvertent error,” not a deliberate attempt to flout the Court’s briefing

deadlines. (Doc. 38, #1276).

The Officers have since replied to Westbrook’s summary-judgment opposition.

(Doc. 39). They did not, however, reply to his motion-to-strike opposition by the

deadline the local rules impose. S.D. Ohio Civ. R. 7.2(a)(2). So both motions—the

motion for summary judgment and the motion to strike—are now ripe.

LEGAL STANDARD

Summary judgment is warranted “if the movant shows that there is no genuine

issue as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). When the non-movant bears the burden of proof at trial,

as is the case with respect to the Officers’ motion for summary judgment, the movant

(here, the Officers) can establish that there are no genuine disputes of material fact

and that they are entitled to judgment as a matter of law by showing that the non-

moving party (here, Westbrook) lacks evidence to support an essential element of his

case. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Peeples v. City of Detroit,

891 F.3d 622, 630 (6th Cir. 2018).

Further, as the Sixth Circuit has explained, “[t]he mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that there be no genuine

issue of material fact.” Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 697 (6th Cir.

2020) (emphasis omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–

48 (1986)).

In sum, the non-moving party, at this stage, must present some “sufficient

disagreement” that would warrant submitting the dispute to a jury. See Rocheleau v.

Elder Living Const., LLC, 814 F.3d 398, 400 (6th Cir. 2016) (quoting Anderson, 477

U.S. at 251–52). In making that determination, though, the Court must view the

evidence in the light most favorable to the non-moving party. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Jones v. Producers Serv.

Corp., 95 F.4th 445, 449 (6th Cir. 2024).

LAW AND ANALYSIS

A. Westbrook Failed to Meet the Briefing Deadlines.

The Court begins with a preliminary matter. As noted, because Westbrook

responded to the summary judgment motion five days late, the Officers move to strike

that response as untimely. (See generally Doc. 37). The Federal Rules of Civil

Procedure, however, “do not provide for a motion to strike documents other than

pleadings.” United States ex rel. Kramer v. Doyle, No. 1:18-cv-373, 2023 WL 3243195,

at *3 (S.D. Ohio May 4, 2023) (collecting cases); see also Fed. R. Civ. P. 12(f).

Ultimately, then, since the Officers seek to strike Westbrook’s response to a

dispositive motion, not a pleading, the Court DENIES the Officers motion to strike,

especially given that “[m]otions to strike are viewed with disfavor and are not

frequently granted,” Kemen v. Cincinnati Bell Tel. Co., LLC, No. 1:22-cv-152, 2024

WL 1242295, at *4 (S.D. Ohio Mar. 22, 2024) (quoting Operating Eng’rs Loc. 324

Health Care Plan v. G & W Constr. Co., 783 F.3d 1045, 1050 (6th Cir. 2015)).

That said, Westbrook did respond late. The Officers moved for summary

judgment on December 12, 2024. (Doc. 30). Westbrook’s response in opposition was

thus due on January 2, 2025. S.D. Ohio Civ. R. 7.2(a)(2). But he neither filed a brief

by that date nor sought an extension. And on January 7, 2025, when he did file his

(untimely) response, (Doc. 35), he did not bother seeking leave of Court to do so. True,

Westbrook did accept responsibility for the “inadvertent” late-filing and belatedly

requested that the Court grant him post-filing leave to file his response. (Doc. 38,

#1276). But as the Court has previously highlighted, “[b]riefing schedules are not

suggestions,” Tumbleson v. Lakota Loc. Sch. Dist., No. 1:23-cv-395, 2024 WL 4406911,

at *2 (S.D. Ohio Oct. 4, 2024), inadvertent tardiness notwithstanding.

In light of Westbrook’s failure to comply with the deadlines, the Court could

perhaps treat the Officers’ motion as unopposed and Westbrook’s arguments as

forfeited. Id. (citing Castleberry v. Neumann L. P.C., No. 1:07-cv-856, 2008 WL

5744179, at *5 (W.D. Mich. July 9, 2008)). But given the relatively minimal delay,

and the lack of any prejudice, the Court is not inclined to do so. And in any event,

even after considering Westbrook’s response in opposition, his claims are Heck-

barred. So, the Court sees little point in refusing to address his arguments.

B. Heck Bars Westbrook’s Excessive Force Claim.

Now on to the main event. The Officers argue that three doctrines entitle them

to summary judgment: judicial estoppel, the Heck bar, and qualified immunity.4

4 The Officers seem to conflate their arguments regarding judicial estoppel and Heck v.

Humphrey. (See Doc. 30, #1217–19). But those are separate doctrines. See, e.g., Chaney-Snell

v. Young, 98 F.4th 699, 707–14 (6th Cir. 2024) (analyzing judicial estoppel and the Heck

doctrine separately).

Because the Court agrees that Heck prevents Westbrook from asserting his excessive

force claim in federal court, it need not, and thus does not, reach the Officers’ judicial

estoppel or qualified immunity arguments.

The Heck doctrine bars a plaintiff from proceeding on a claim under 42 U.S.C.

§ 1983 “if success on that claim would ‘necessarily imply the invalidity’ of an

underlying state criminal conviction.” Hayward v. Cleveland Clinic Found., 759 F.3d

601, 608 (6th Cir. 2014) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)). To

overcome Heck’s bar and pursue a § 1983 claim that falls within its sphere, a plaintiff

must show that the conviction “has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance of a writ of habeas

corpus.” Heck, 512 U.S. at 486–87. In other words, if the judgment in a § 1983 action

would necessarily imply the invalidity of a conviction or sentence, the court must

dismiss the action unless the plaintiff can show that the conviction was invalidated;

but if the § 1983 judgment would not do so, the court should let the action proceed,

absent some other bar to the suit. Id.

Here, Westbrook asserts a § 1983 claim based on the Officers’ alleged use of

excessive force. Helpfully, the Sixth Circuit has specifically identified two scenarios

in which Heck may bar a § 1983 excessive force claim. Hayward, 759 F.3d at 608.

“The first is when the criminal provision makes the lack of excessive force an element

of the crime.” Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010). “The second is when

excessive force is an affirmative defense to the crime[.]” Id. (citing Cummings v. City

of Akron, 418 F.3d 676, 684 (6th Cir.2005)). That is because, in both situations, “the

§ 1983 suit would seek a determination of a fact that, if true, would have precluded

the conviction.” Hayward, 759 F.3d at 609 (cleaned up).

Beyond merely laying out the applicable framework, Hayward also provides

helpful instruction on how that excessive force framework plays out in the context of

Ohio’s resisting-arrest statute, Ohio Rev. Code § 2921.33—the statute underlying one

of Westbrook’s convictions here. In that setting, Hayward adopts a bright-line rule:

Heck bars § 1983 claims resting on allegations of pre-arrest excessive force, but not

those resting on post-arrest excessive force. Id. at 611. In explaining the basis for that

rule, Hayward acknowledged some confusion in Ohio law as to whether the lack of

excessive force is actually an element of the crime of resisting arrest. Id. at 610–11.

But whatever tension may exist on that front, the court noted it was beyond dispute

that the presence of excessive force would constitute an affirmative defense. Id. at

611. Thus, one way or the other, “a § 1983 claim of [pre-arrest] excessive force would

necessarily imply the invalidity of an underlying conviction for resisting arrest.” Id.

And that, in turn, means Heck bars pre-arrest excessive force claims by plaintiffs

convicted of resisting arrest.

By contrast, Heck does not “bar § 1983 suits alleging post-arrest excessive

force.” Id. (emphasis in original). That’s because “excessive force occurring after” a

plaintiff’s resistance and arrest does “not necessarily imply the invalidity of the

underlying conviction for resisting arrest.” Id.

So to discern whether Heck bars a plaintiff’s § 1983 excessive force claim “a

court must carefully examine the facts and the temporal sequence of the underlying

offense and the alleged unconstitutional conduct” to determine when the allegedly

unlawful force was used in relation to when the officers accomplished the arrest. Id.

at 612.

In other words, whatever other factual disputes may exist here, only one set of

facts matters for resolving the Heck question: Whether the Officers allegedly used

excessive force before they arrested Westbrook, or after. See Hayward, 759 F.3d at

612–13; see also Chaney-Snell v. Young, 98 F.4th 699, 710 (6th Cir. 2024) (explaining

that Heck “exists to determine whether (and when) a § 1983 plaintiff has ‘a complete

and present cause of action,’” not “to identify the facts that are in ‘genuine dispute’ at

the summary-judgment stage” (citations omitted)). On that front, recall that

Westbrook bases his excessive force claim on Jennings tasing him, and Dotson and

Dean failing to intervene. (See Doc. 1, #4). So the Court must home in on when that

tasing occurred compared to when the Officers completed Westbrook’s arrest.

That comparison dooms Westbrook’s claim. Even viewing the facts in

Westbrook’s favor (as the Court must at summary judgment), the record reveals that

Westbrook’s excessive force claim challenges exclusively pre-arrest conduct. Indeed,

in his opposition, Westbrook concedes that “Jennings deployed his taser” while “[i]n

the process of arresting [him],” and that the Officers placed him in handcuffs after

Jennings tased him. (Doc. 35, #1254–55 (emphasis added)). Westbrook’s deposition

testimony confirms the same. (See Doc. 29, #1105, 1164). Those concessions show that

Westbrook challenges pre-arrest excessive force, which Heck plainly bars. Hayward,

759 F.3d at 612. In other words, Westbrook has identified no facts showing that the

Officers acted with excessive force after they had “handcuffed and subdued” him.

Baker v. Claiborne Cnty., No. 3:21-cv-380, 2024 WL 2885902, at *4 (E.D. Tenn. June

7, 2024), appeal dismissed sub nom. Baker v. Claiborne Cnty., No. 24-5620, 2024 WL

4529704 (6th Cir. Sept. 26, 2024); see also Parvin v. Campbell, 641 F. App’x 446, 450

(explaining that where the plaintiff described being handcuffed after being pepper-

sprayed, his excessive force claim “ar[ose] out of the same conduct that led to his

conviction”). To the contrary, once the Officers handcuffed Westbrook, he maintains

that he laid on the apartment floor until the paramedics arrived to transport him to

the hospital. (Doc. 29, #1105–06; see also Doc. 31, #1245).

True, Westbrook testified that the tasing occurred when the Officers had one

of his hands cuffed. (Doc. 29, #1164). But that doesn’t transform Westbrook’s Heck-

barred pre-arrest excessive force challenge into a viable post-arrest excessive force

claim. The Sixth Circuit has made clear that § 1983 excessive force claims can proceed

only “where the alleged force occurred after the resistance and the completion of the

arrest.” Hayward, 759 F.3d at 612 n.4 (emphasis added). Handcuffing one of

Westbrook’s hands does not amount to a completed arrest. Rather, by Westbrook’s

own accounting, the tasing occurred before the Officers completed the arrest—i.e.,

before they had fully subdued him and placed both of his hands in cuffs. (See Doc. 29,

#1104–06; see also Doc. 21, #345, 347). So he cannot escape Heck’s bar on that fact

(and indeed, other than mentioning it as a “disputed fact” in passing, Westbrook

didn’t bother to explain why having one hand cuffed might save his excessive force

claim from Heck’s bar).

Curiously, in his opposition, Westbrook did not meaningfully engage with

Hayward or otherwise cite any caselaw explaining why his pre-arrest excessive force

claim escapes Heck’s ambit. Rather, his sole counterargument is that the Hamilton

County criminal complaint for resisting arrest incorrectly alleged that the arresting

officer had to “tackle[]” Westbrook. (Doc. 35, #1265). And according to Westbrook,

that factual discrepancy means the Officers cannot rely on his no-contest plea to

argue that Heck bars his excessive force claim. (Id.). The Court, however, sees two

problems with that argument.

First, Westbrook misconstrues what the criminal complaint alleged. It plainly

stated that during Westbrook’s arrest, “[Westbrook] attempted to tackle Officer

Jennings after fleeing of foot.” (Doc. 30-1, #1229). True, when the city solicitor relayed

the criminal complaint’s facts at Westbrook’s state-court plea hearing, she seemingly

misstated that “Westbrook had to be tackled by the arresting officer.” (Doc. 30-2,

#1234). But how the city solicitor conveyed the facts doesn’t change what the criminal

complaint alleged—that is, that Westbrook attempted to tackle the Officers, not the

other way around. And regardless, the state court still found Westbrook guilty of

resisting arrest. (Id. at #1234–35).

Second, and relatedly, if “the allegations in the resisting arrest complaint are

false,” as Westbrook maintains, (Doc. 35, #1265), then he must address that concern

through a challenge to his conviction in state court, not through a § 1983 claim here.

Indeed, at his state-court plea hearing, after the city solicitor relayed the facts,

Westbrook’s counsel “st[ood] by.” (Doc. 30-2, #1234). Westbrook instead could have

challenged those facts at his hearing or raised excessive force as an affirmative

defense. But he did neither. Rather, he pleaded no contest, which as the name

suggests, means he did not contest the record. See, e.g., State v. Erskine, 29 N.E.3d

272, 277 (Ohio Ct. App. 2015) (“The no contest plea is an admission to the facts as

laid out[.]”). Westbrook’s present attempt to contest the facts underlying his state-

court conviction—for example, by testifying that he never resisted arrest, but rather

that the Officers were “pulling [him] back and forth,” which mimicked resistance,

(Doc. 29, #1139)—if credited, would “necessarily imply the invalidity” of that

conviction. Hayward, 759 F.3d at 608–09. As a result, Heck bars his claim.

All told, because the state court found Westbrook guilty of resisting arrest, and

because Westbrook bases his excessive force claim only on the Officers’ pre-arrest

conduct, Heck prevents this Court from considering his § 1983 claim. The Court thus

GRANTS the Officers’ motion for summary judgment and dismisses this action.

But one wrinkle remains. Typically, when a Court grants summary judgment,

it terminates an action with prejudice. That Sixth Circuit has explained, though, that

“[w]hen Heck bars a § 1983 claim against an officer, the court should dismiss the

claim without prejudice.” Chaney-Snell, 98 F.4th at 710 (emphasis in original). So

that is what the Court will do here.

CONCLUSION

For the above reasons, the Court DENIES Defendants’ Motion to Strike

Plaintiff's Memorandum in Opposition to Defendants’ Motion for Summary

Judgment (Doc. 37), but the Court GRANTS Defendants’ Motion for Summary

Judgment (Doc. 30), and DISMISSES this action WITHOUT PREJUDICE. The

Court DIRECTS the Clerk to enter judgment and to TERMINATE this case on its

docket.

SO ORDERED.

February 7, 2025

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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