Lovell

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MARK LOVELL,

Case No. 1:23-cv-114

Plaintiff,

Bowman, M.J.

v.

CLERMONT COUNTY SHERIFF’S OFFICE, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Mark Lovell filed suit under 42 U.S.C. § 1983 based on events that

occurred following his arrest. Plaintiff alleges that after he was taken into custody, six

Clermont County Sheriff’s Officers subjected him to excessive force, causing serious

injuries. Plaintiff further alleges that following that use of force, seven individuals exhibited

deliberate indifference to his serious medical needs and denied him adequate medical

care. Two groups of defendants have separately moved for summary judgment. For the

reasons discussed, the motion of the six Clermont County Officers is partially denied on

two claims of excessive force. Apart from those two claims, however, the two motions for

summary judgment are granted.

I. Identification of the Parties

Plaintiff filed an amended complaint on February 25, 2023 that asserts ten

separate claims against seven individuals and three entities. The amended complaint

identifies the following Defendants: Clermont County Sheriff Leahy, the Clermont County

Board of Commissioners (“the Board”), Officer Joseph Bailey (“Bailey”), Officer Eric

Mullenix (“Mullenix”), Corporal Gregory Paff (“Paff”), Officer Dylan Pemberton

(“Pemberton”), Officer Alex Tincher (“Tincher”), Officer Terra Shouse (“Shouse”), Nurse

Samantha Irwin (“Irwin”), and Southern Health Partners (“SHP”). All individual Defendants

are named in both their individual and official capacities.

For the Court’s convenience, the six individual Clermont County Officers (Bailey,

Mullenix, Paff, Pemberton, Tincher and Shouse) are collectively referred to as “Defendant

Officers.” In addition, the Defendant Officers, the Board, newly elected Clermont County

Sheriff Stratton in his official capacity,1 and former Sheriff Leahy in his individual capacity,

are collectively referred to as the “County Defendants.”

II. Standard of Review

Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper

“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.” A dispute is “genuine” when “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court must view the evidence

and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party has the

burden of showing an absence of evidence to support the nonmoving party's case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

Once the moving party has met its burden of production, the nonmoving party

cannot rest on the pleadings, but must present significant probative evidence in support

of his case to defeat the motion for summary judgment. Anderson, 477 U.S. at 248-49.

1The amended complaint names only Sheriff Robert Leahy. On January 6, 2025, Christopher Stratton

became the newly elected Sheriff of Clermont County. To the extent that Plaintiff has named Sheriff Leahy

in his official capacity, Sheriff Stratton is properly substituted as the duly elected Clermont County Sheriff.

The mere scintilla of evidence to support the nonmoving party's position will be

insufficient; the evidence must be sufficient for a jury to reasonably find in favor of the

nonmoving party. Id. at 252.

Rule 56(c) sets forth the procedures for supporting factual positions. Pursuant to

Rule 56(c)(1), a party must support his assertion that a fact cannot be or is genuinely

disputed by:

(A) citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion

only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.

Id. Evidence submitted in support of summary judgment need not only consist of

admissible evidence, so long as the evidence could be presented in a form that would be

admissible at trial. When a party has failed to properly support or address a fact as

required, the court may provide an additional opportunity to support or address the fact,

or may consider the fact to be undisputed. See Rule 56(e).

“To the extent that videos in the record show facts so clearly that a reasonable jury

could view those facts in only one way, those facts should be viewed in the light depicted

by the videos.” Latits v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017) (citing Scott v. Harris,

550 U.S. 372, 380 (2007)); see also Feagin v. Mansfield Police Dept., 155 F.4th 595 (6th

Cir. 2025). But where the video is ambiguous, the court must “fill in the blanks by

considering disputed evidence in a light most favorable to [the plaintiff], completing the

story with any uncontested factual assertions the officers proffer.” Feagin, 155 F.4th at

601 (additional citation omitted).

III. Findings of Fact Construed in Plaintiff’s Favor2

Lovell’s Arrest by Williamsburg Police Officers

On Saturday, February 27, 2021, Mark Lovell (“Lovell”) went to Ruby Lyon’s

Hideaway where he consumed an excessive amount of alcohol. Eventually, he left Ruby

Lynn’s Hideaway and was dropped off at the Double E bar in Williamsburg, Ohio. Just

before midnight, a group of individuals in front of the Double E bar flagged down Officer

Neumeier of the Williamsburg Police Department regarding a disorderly intoxicated male.

Officer Neumeier observed Lovell staggering and slurring his speech. Neumeier further

observed several individuals attempting to calm Lovell down and holding on to him to

keep him from falling. (Doc 58-1, Undisputed Findings 1-8.)

Neumeier’s police report includes a statement by an employee at the Double E,

Dan Dickson, that Dickson wanted Lovell to leave the bar. Dickson reported that Lovell

was making sexual comments to females and other statements to patrons about physical

harm, but that no physical altercation had occurred and no one wanted to press charges.

(Doc. 58-1, Findings 9-11; 14; Doc. 58-3, PageID 1305.) Lovell had some “scabbed over”

abrasions on his face at the time. (Doc. 58-3, PageID 1305.)

When Neumeier attempted to handcuff Lovell, he resisted. So Williamsburg Officer

Jason Flynn, who had arrived to assist, wrapped his arms around Lovell while Neumeier

finished handcuffing him. When they placed Lovell into a police vehicle, he spat. Lovell

2Both groups of Defendants filed statements of “Proposed Undisputed Facts,” supported by appropriate

citations to the record. (See Docs. 58-1, 66.) Many Findings are derived from facts that either are

unconditionally admitted by Plaintiff, or as to which Defendants have met their burden of production and

Plaintiff has failed to cite to any contrary evidence. (See e,g, Doc. 81-1, ¶¶ 20-22, “Admits that the cited

evidence suggests this is true.”) Where expressly noted, the Court has made additional findings based on

video evidence.

disputes the extent to which he resisted arrest and whether he intended to spit on Officer

Neumeier’s pantleg.3 (Doc. 58-1, Findings 19-21, 23.)

Once inside the cruiser, Lovell kicked the divider and inside the door, ignoring

instructions to stop. When Williamsburg Officers opened the door, Lovell placed his knee

against it, causing the door to hit his knee as the officers closed it. At one point, Lovell

swung both feet outside and Officer Flynn reached through the opposite side of the cruiser

and pulled Lovell back by the shoulders. (Doc 58-1, Findings 24-25, 27-28.)

Flynn contacted Lovell’s family. Lovell’s daughter expressed concern that Lovell

not be returned home because he could be violent when intoxicated. Lovell’s wife stated

that she wanted him to sober up and cool off in a holding cell. (Doc. 58-1, Findings 31-

32.) After citing Lovell for two misdemeanors and based on the family’s wishes, Neumeier

transported Lovell to the Clermont County Jail. En route, Lovell verbally threatened

Neumeier and his family. Based on those threats, Neumeier charged Lovell with a third

misdemeanor offense, aggravated menacing.4 (See Doc. 58-1, Findings 33-34; Doc. 58-

3, PageID 1309.) Neumeier also alerted Clermont County Dispatch, also known as the

Communications Center, to request assistance upon arrival. The Communications Center

relayed that request to the Jail. (Doc. 58-1, findings 36-39.)

Lovell Arrives at the Clermont County Jail

Defendant Officers Pemberton, Bailey, Mullenix and Paff were waiting to assist

when Lovell arrived at the Jail at approximately 12:25 a.m. on February 28, 2021. Sgt.

3An Incident Report completed by Officer Flynn reports that Lovell told him that “he did not mean to [spit]

that he just spits when he talks….” (Doc. 58-3, PageID 1308.) No video evidence of the arrest was submitted

by either party.

4The menacing offense initially was mistakenly identified as a felony, (Doc. 58-5, PageID 1328), but was

later corrected to a misdemeanor 1 offense.

Newsome – who is not a defendant in this case - operated a handheld camera. The video

depicts Lovell’s slurred speech and some unsteadiness. (Doc 58-1, Findings 40-43.)

Multiple Officers surrounded him with Bailey taking hold of Plaintiff’s right arm.

The video also reflects Lovell’s verbal belligerence but physical compliance during

an initial pat down search just outside the booking area. As he walks into the booking

area, Lovell is only slightly unsteady. (See Plaintiff’s Ex. 39, DeBord Video 1, 0:50-2:12;

Plaintiff’s Ex. 25, Clermont Video 02-119, 0:01-1:32). He complies with a second pat down

and removal of his wedding ring and shoes. (DeBord Video 1, 2:12-2:28.) During this time,

he complains almost continuously about Officer Bailey’s grip on his right arm but does not

verbalize other pain complaints. (Id., 2:28-4:40.)

Arrival of Nurse Irwin and First Use of Force

Defendant Southern Health Partners (“SHP”) provides medical care at the Jail.

Officers summoned Defendant Nurse Irwin, a Licensed Practical Nurse employed by

SHP, to assess Lovell. Irwin took his temperature without incident. Throughout her

evaluation, Lovell continually voices his displeasure with Bailey’s grip. Mullenix warns that

he will put Lovell in “the chair” if he does not “chill.” (DeBord Video 1, 4:40-5:23.)

When Irwin attempts to place a pulse oximeter on Lovell’s right finger - the arm

held by Bailey - Lovell momentarily jerks his hand away and tenses his right fist, though

Bailey maintains his grip. (Id., 5:00-5:20.) Without skipping a beat or encountering

resistance from Lovell, Irwin deftly places her instrument on Lovell’s left hand, stating

calmly, “just do this one, you’re fine, you’re fine.” (Id.) As Irwin takes her reading, Officers

on Lovell’s right side order him to relax and/or loosen his right hand. (Id., 5:13-5:24.) Paff

appears to move closer to Lovell’s right hand. (Id.) Seconds later, Irwin removes the pulse

oximeter and Officers walk Lovell toward a restraint chair. At that time, Plaintiff’s right

hand appears to be straightened rather than clenched as he walks uncuffed, still firmly in

the Officers’ grip. (Id., 5:23-5:28.)

During the short walk, Defendant Officers allege that Lovell attempted to pull away.

(Doc. 58-1, Finding 52.) Plaintiff disputes the Officers’ account based on video evidence.

What is undisputed is that Paff uses his leg to trip Lovell and take him to the ground.

In support of their version of events, Defendants rely heavily on unsworn

statements collected in a Response to Resistance (“RTR”) report completed on March 1,

2021. (Doc. 58-7) Plaintiff denies any active resistance at the time of Paff’s takedown or

at any other time. (See DeBord Video. 1, at 5:28-5:35; Doc. 81-1, PageID 2578, Disputed

Issue of Fact 11.) Based on conflicts between the RTR report and video evidence, a

genuine issue of material fact remains as to whether Lovell pulled away prior to Paff’s

takedown.

At the end of his takedown, Paff punches Lovell in the shoulder and Tincher

reaches for his cannister of pepper spray (“OC spray”). Bailey retains his grip on Plaintiff’s

right arm, while Mullenix retains a grip on his left arm. (DeBord Video 2; see also Doc.

81-3, Ex. 2 (still image); Doc. 81-3, Ex. 3 (still image.)) Lovell lands in a prone, face down

position. After he lands, Defendants assert that Lovell tucked one arm under his body and

disobeyed commands to give it up. (Doc. 58-1, Finding 53.) But the video record appears

to contradict that account. In video records, five Officers appear to control Plaintiff as he

reaches the floor. Tincher kneels next to Lovell’s left shoulder and uses his right hand to

pin his neck to the floor as he holds his OC canister with his left hand. Bailey has his left

knee on Plaintiff’s back and Lovell’s right arm remains secured with both of Bailey’s

hands, pulled at a 90-degree angle from his body. Mullenix is to the left of Lovell’s

midsection, holding onto Lovell’s left arm. (Clermont Video 2-169 (Ex. 26) at 4:51; Doc.

81-3, Ex. 3, (still image). After Lovell hits the floor, Tincher yells “OC,” alerting the other

Officers, before deploying OC spray directly towards Lovell’s face. Plaintiff alleges that

shortly thereafter, Tincher rubs the OC gel onto Lovell’s face. (Doc. 81-3, Ex. 7 (still

image.)) As he lies relatively motionless, Lovell is pinned and secured by multiple Officers.

Neither of Plaintiff’s arms appears to be beneath his torso. (Doc. 81-3, Ex. 6 (still image);

see also, generally, Doc. 81-1, Response to Finding 54, PageID 2567.)

Over no more than 20 seconds,5 Officers deploy “tactical strikes” including closed

fist punches. Despite the absence of visual evidence of resistance, the video captures

multiple audio commands to Lovell to “stop resisting” and to “give us your hands.” (DeBord

Video 1 5:42-5:51.) At this point, blood pools under Lovell’s face. Defendant Shouse

approaches from behind the booking counter and places a spit bag over Lovell’s head;

blood soaks through and is visible on the exterior of the bag. (DeBord Video 1, at 5:57-

6:04.) Officers reapply handcuffs.

Defendant Officers stand Lovell back up and place him into the restraint chair at

approximately 12:31 a.m. Nurse Irwin checks his six restraint points at 12:33 a.m. She

returns to check his blood pressure. Lovell states: “I need my eyes screened.” Paff replies:

“No, you need to start listening before you come out of that chair and get that stuff taken

care of man.” Lovell mumbles incoherently, and Paff states: “if you aren’t going to listen

to me, I’m damn sure not going to listen to you.” Irwin declines Lovell’s request to rinse

his eyes, stating, “No, I can’t do that, hon,” while she finishes taking his blood pressure.

5Defendants maintain that the tactical strikes lasted no more than 14 seconds. (Doc. 58, PageID 1237.)

(DeBord Video 1, 8:41-9:30.) Lovell groans, “Ow, my eyes, bad.” Lovell is placed in

Booking Cell 304, still in the restraint chair and wearing the spit bag. (DeBord Video 1 at

9:35-9:45 and 10:10-10:26; Doc. 58-1, Finding 55-56; Clermont Video 2-169, 6:40-6:57.)

Defendants offer uncontradicted testimony that Officers observed Lovell every ten

minutes and that Irwin checked on him every thirty (30) minutes and reported no signs of

distress.6 (Doc. 50, PageID 983-984; see also Irwin Affidavit, Doc. 57-3.) Defendants’

observations were recorded in an Increased Observation Log and in a Booking Log. (Id.,

PageID 985; see also Doc. 46-4.)

Second Use of Force

At approximately 2:26 a.m., Lovell was removed from Booking Cell 304 and

wheeled to the shower room for decontamination. (Doc. 58-1, PageID 1279, Finding 59.)

Approximately five minutes later following a second use of force, Lovell is returned to the

restraint chair. Nearly all facts concerning the second use of force are disputed.7

When first removed from the cell, Lovell was unresponsive and needed to be

roused twice by sternum rubs. Officers ask Lovell if he is “going to comply with everything”

if released and if he is ready to “get that stuff out of your eyes,” with a fresh change of

clothes. (DeBord Video 2, 0:03-1:10.) Paff wheels Plaintiff in the restraint chair towards

the shower room, accompanied by Bailey and Pemberton. Newsome follows with a

camera. (DeBord Video 2 at 1:11-2:10.) Mullenix and Shouse join en route. Before joining,

6Plaintiff objects to this testimony on the basis that it is not in a form that could be admitted into evidence.

But Paff and Irwin can testify to their own observations. The objection is also overruled because the logs

appear to be contemporaneous business records that could be authenticated at trial. (Doc. 46-4). Plaintiff

further objects that no corroborative videos of the 10 and 30-minute checks were produced despite Plaintiff

ostensibly requesting “all” relevant videos. (Doc. 81-1, PageID 2568.) This objection is overruled both

because the referenced requests for “all” relevant documents or videos are so broadly worded as to be

vague, and because Plaintiff did not previously object to the Defendants’ responses.

7All disputed facts are again construed in Plaintiff’s favor where the video record supports Plaintiff’s

construction, or alternatively, where the video record is ambiguous.

Shouse grabs a pair of latex gloves and a fresh spit hood. (Clermont Video 3-117, 1:14-

1:22.)

In the hallway adjacent to the shower room, Lovell requires assistance from

Defendants Paff and Bailey to stand up and walks with obvious difficulty. Paff states,

“Legs hurt? I gotcha.” (DeBord Video 2 (Ex. 40 at 2:00-2:28; Doc. 81-3, Ex. 14 (still

image.) Bailey and Paff place Lovell on a bench inside the shower room. (DeBord Video

2, 1:32-2:45.) Mullenix enters. Pemberton remains in the doorway and Newsome and

Shouse remain in the hallway. (DeBord Video 2, 2:29-2:45.) The door to the shower room

partially closes, and the camara view is blocked by Pemberton’s body in the door frame.

(DeBord Video 2, 2:30-3:50.)

Officers remove Plaintiff’s spit hood and Bailey and Paff tell Lovell they are going

to remove his shirt. Lovell disagrees with a comment that they are trying to help him,

protesting that the officers rolled his leg and asking “you gotta have ten sheriffs?” Bailey

suggests removing Lovell’s pants so he can get into the shower; Lovell mumbles “What

the hell for?” (DeBord Video 2, 3:25-3:41.) An Officer states: “That’s why we have ten

guys,” (Id., 3:43-3:45). Around that time, the door closes as Pemberton steps fully into the

shower room. Sgt. Newsome remains in the hallway, recording the closed door for roughly

eleven seconds. (Id., 3:41-4:03; Clermont Video 4 (Ex. 30), 1:42-2:36.) During that time,

the parties’ voices are heard in brief phrases, including “That’s right boy” and “Who the

fuck you calling a boy?” A commotion ensues and Newsome and Shouse run toward the

door. (DeBord Video 2, 3:42-4:04; Clermont Video 4, 2:36-2:47.)

As Newsome opens the door, the video shows Lovell sitting hunched over on the

bench in a defensive position, his hands covering his face. (Doc. 81-3, Ex. 15 (still image

DeBord Video 2 at 4:04).) Paff, Pemberton, Bailey and Mullenix surround him and are

punching him. Newsome begins yelling “stop resisting,” and others repeat the command.

(DeBord Video 2, 4:04-4:07; Clermont Video 4, 2:47-2:55.) Multiple Officers grab Lovell’s

right arm and pull him from the bench, while Lovell’s left hand remains in front of his face.

Bailey places his right arm between Lovell’s legs, lifts him from the ground by his waist in

an action that raises Lovell’s body and then drops him to the floor. (DeBord Video 2, 4:08-

4:10; Doc. 81-3, Ex. 17 (still image).) Bailey’s action causes Paff to lose his grip, and

Bailey, Pemberton, and Mullenix fall to the floor with Lovell.

Lovell lands on his stomach, with both hands shielding the back of his neck

(DeBord Video 2, 4:23; Doc. 81-3, Ex. 18 at PageID 2625). Pemberton appears to be

grasping both of Lovell’s forearms (Id.) But the camera view of most of Lovell’s body is

obstructed by the Officers’ bodies. The Officers deliver dozens of punches and other

“tactical strikes,” including blows to Plaintiff’s shoulder or head, his torso, and legs.8

(DeBord Video 2, 4:10-4:22.) Paff deploys OC spray to Lovell’s face at point-blank range

and Shouse announces she has a fresh spit hood. (Id., 4:22-4:25.) Within three seconds

of the deployment of OC spray, Officers resume tactical strikes to Lovell’s upper body,

back, torso, and legs for approximately 45 more seconds. (DeBord Video 2, 4:22-5:07.)

After Lovell is again handcuffed, Shouse hands the clean spit hood to Bailey.

(DeBord Video 2, 5:27-5:29.) Shouse and Mullenix exit. Paff, Bailey and Pemberton lift

and place Lovell back in the restraint chair. (DeBord Video 2, 5:23-5:43.) Officers return

to the booking area, where Nurse Irwin awaits.

8Plaintiff alleges in his memorandum in opposition that Defendants administered 39 punches or strikes, and

kneed him an additional 11 times.

Irwin again checks Lovell’s restraints before he is returned to Booking Cell 304.

(DeBord Video 2, 8:40-9:07.) Increased Observation and Booking logs again reflect visual

checks by Officers every ten minutes and by Irwin every thirty minutes. (Doc. 50.)

Events Relating to Medical Care Following the Second Use of Force

Lovell was next released from the restraint chair around 4:30 am,9 when Paff

wheeled him to the shower room a second time accompanied by Mullenix and Pemberton.

(Doc. 58-1, Finding 68-69.) Newsome again follows with a camera and Shouse joins the

group. (DeBord Video 3, 0:08-0:24). This time, Mullenix grabs a set of Jail clothing from

a supply room. (Id., 0:50-1:25.)

Lovell again requires assistance to stand up. He is shirtless, and his back is red.

(DeBord Video 3, 1:30-1:49; Doc. 81-3, Ex. 19 (still image.)) Lovell declines the offer of a

shower or decontamination and states he just wants to get dressed. (DeBord Video 3,

5:20-9:46; Clermont Video 7 (Ex. 37) at 1:15-1:36 and 7:35-9:33.) Mullenix exits the

shower room briefly to retrieve a towel. Newsome holds the door open as Mullenix

reenters. (DeBord Video 3, 2:06-2:25.)

Lovell touches his mouth; Paff asks “Y’all right?” Lovell points to his teeth and Paff

responds, “gotcha, I’ll have the nurse check ya’. I’ll have the nurse check ya’ here in a

second. (DeBord Video 3, 2:25-2:38.) As Lovell prepares to remove his pants, he touches

his left lower back area and states: “They beat me man, they got me good. I guess this is

what they wanted to do.” Lovell pauses and Officers ask if he needs help to stand. Plaintiff

9In their respective Proposed Undisputed Facts, the Clermont County Defendants pinpoint the time as 4:25

a.m. (Doc. 58-1, ¶ 68), while the SHP Defendants pinpoint the time as 4:34 a.m. (Doc. 62, ¶ 26). Plaintiff

“admits” both proposed findings.

responds, “Man, I can’t move” and complains: “These mother fuckers beat me up man,”

and “They got me good.” (DeBord Video 3, 3:30-4:00.) Paff states, “I gotcha.” (Id.)

Paff supports Lovell as he stands up. Lovell remains hunched over, and continues

to make comments about being “fucked up.” Lovell pulls down his pants, revealing a pain

patch on his knee; Paff assures him they will inform the nurse. (DeBord Video 3, 4:25-

4:52.) Lovell changes with help. He requires assistance to walk as he exits the room,

which Paff and Pemberton provide. Lovell appears to be limping and is bent at the waist.

He comments: “They hurt me bad,” and “I think I need to see somebody right now.”

Officers reassure him that the nurse will check him. (DeBord Video 3, 7:36-7:46.) Paff

directs Mullenix to retrieve a wheelchair. (Id., 7:46-8:15.)

Before Lovell reaches the wheelchair, Irwin walks over and assesses his prior

restraint points. Lovell complains: “It’s not my knee, it’s my upper body.” Irwin responds:

“I just need to check your ankles hon.” Paff advises her that Lovell complained “his ribs

hurt” and of the discovery of the pain patch and Irwin briefly asks about the pain patch.

Despite being informed of Lovell’s rib pain, the video does not show further examination

by Irwin of Plaintiff’s upper body, contrary to her affidavit testimony.10 (DeBord Video 3,

8:15-9:44.) As the Officers place him in the wheelchair, Lovell groans and says: “These

fools fucked me up bad.” Paff advises him that the Officers are going to get him into a

bed so he can lay down the rest of the night. (Id., 9:30-9:44.)

10Irwin’s affidavit attests that she performed a more complete examination at 4:34 a.m., including “an

abdominal assessment and palpat[ing] the areas where he complained of pain,” but “found no bruising,

redness, swelling, or any indication of an external or internal injury.” (Doc. 57-3, PageID 1050.) Based on

video evidence at that time, and for purposes of the pending motion, the Court credits Plaintiff’s version of

this disputed fact. See Scott v. Harris, 550 U.S. at 380.

Paff, Pemberton and Mullenix wheel Lovell to Cell 309, where they assist him out

of the wheelchair, into the cell, and onto the bed. As they do so, Lovell moans and

exclaims again. (DeBord Video 4, 0:40-0:45.) When Lovell states he is “hurt bad,” Paff

responds reassuringly and directs Lovell to “let me know if you need anything.” (DeBord

Video 4, 0:45-1:15.) Lovell questions “Why’d they do that man?” Paff answers, “Well

apparently you tried to come at ‘em.” In response to Lovell’s denial, Paff says, “I gotcha.”

(Id., 1:20-1:42.) Lovell asks for a mat, and the Officers offer “maybe in a little while” after

he gets some sleep. Lovell states “They broke my ribs, dude,” but the Officers do not

directly respond. (Id., 2:42-2:45.)

Nurse Irwin left her shift at 7 a.m. Around 11 a.m., Nurse Sydney Davis conducted

a more thorough examination as part of her completion of a “Medical Staff Receiving

Screening Form” for new inmates. (Doc. 57-7, PageID 1071-1072.) Based on his

complaints, Davis prescribed 800 mg of ibuprofen at 11:30 a.m. and ordered x-rays of

Lovell’s chest. (Id., PageID 1085.) The x-rays were electronically read and signed at 12:14

p.m. (Id., PageID 1083.) They showed four fractured ribs, flail chest, and a possible

pneumothorax. (Id., PageID 1085.)

Sgt. Hundley was notified at 1:37 pm that Lovell required transport. Lovell was

transported to Clermont Mercy Hospital at 2 p.m. on February 28, 2021, where he

received a CT scan. (Doc. 58-1, Findings 74-76.) He was transferred on the same day to

the University of Cincinnati Medical Center’s Trauma Center (“UCMC”), where he was

admitted for monitoring and prescribed pain medications. He remained at UCMC until his

discharge back to the Jail on March 3, 2021. (Id., Findings 77-78.) He was diagnosed with

fractured ribs, pneumothorax, a lacerated spleen, a hip impingement, and mild cognitive-

linguistic defects. (Doc. 57-7, PageID 1087.) Plaintiff was released from the Jail on bond

on March 9, 2021.

IV. Analysis of Issues Presented in the Pending Motions (Docs. 57-58)

A. Summary Judgment is Granted on Excessive Force Claims Newly

Asserted in Response to Defendants’ Motion

The Defendant Officers seek summary judgment on the grounds that none used

excessive force while executing takedown maneuvers, tactical strikes, and deploying OC

spray in two incidents at the Jail. Plaintiff’s complaint describes the two incidents as

distinct “attacks,” largely defining them by reference to the booking area and shower room

locations and the time periods in which they occurred. (See Doc. 23, ¶ 27, 28, 34, 42, 56,

58). The amended complaint uses captions consistent with that spacial and temporal

framework, characterizing Count 1 as the “First Act” excessive force claim, and Count 2

as the “Second Act.”

In his response to summary judgment, however, Plaintiff more expansively defines

“Count 1” as not merely as including the referenced actions, (Doc. 81, PageID 2537,

2539), but as encompassing, as a separate uses of force, ”the “refus[al of [Plaintiff’s]

request that the O.C. spray be rinsed from his eyes and …[leaving] him in the restraint

chair with a blood-soaked spit-hood covering his O.C.-drenched face for nearly two

hours.” (Doc. 81, PageID 2543.) Similarly, Plaintiff’s opposing memorandum expands his

Count 2 “Second Act” excessive force claim from the “attack” in the shower room, (Doc.

81, PageID 2546), to the Defendant Officers’ act of placing him “back in the restraint chair

with a blood-soaked spit-hood over his OC-covered face for nearly two more hours.” (Doc.

81, PageID 2549.)

In their reply, Defendants protest that Plaintiff’s new arguments regarding the

amount of time he was confined to the restraint chair, and/or the amount of time he

endured wearing a spit hood without decontamination, are brand new excessive force

claims for which the amended complaint failed to provide fair notice. (See Doc. 69,

PageID 1864-1866.) Defendants alternatively argue that they are entitled to qualified

immunity because it was not clearly established in February 2021 that it was

unreasonable to secure a noncompliant inmate in a restraint chair wearing a spit hood for

2 hours after the use of OC spray and prior to decontamination. (Doc. 69, PageID 1866-

1874.) The first argument is persuasive. Therefore, the Court finds no need to address

Defendants’ alternative argument.

The amended complaint does not allege that the Defendants’ use of the spit hood

or restraint chair constitutes excessive force. To be clear, Counts 1 and 2 contain little

more than a legal conclusion that “[t]he foregoing mentioned acts… constituted an

excessive and objectively unreasonable use of force.” (Doc. 23, ¶¶ 62, 64). The reader

must review the chronological allegations in ¶¶ 1-60 to determine precisely what

“foregoing… acts” the Defendant Officers committed.

In contrast to newly asserted claims regarding the spit hood and time in the

restraint chair, those sixty paragraphs primarily describe discrete incidents in the booking

area and shower room in which two distinct “attacks” occurred that included physical

takedowns, tactical strikes, and application of OC spray to Plaintiff’s face. (See id., ¶ 42.)

Although the complaint briefly mentions the time that Plaintiff was left in Cell 304 as 12:36

a.m. and his retrieval at 2:25 a.m., his references to his placement in the restraint chair

are cursory at best, and references to OC spray are most easily understood as relating

to Plaintiff’s medical care following each incident.11 (See id., ¶¶ 27-29.) Allegations

regarding the shower room incident similarly focus on the Defendant Officers’ takedown

and use of tactical strikes and OC spray in that location. (Doc. 23, ¶¶ 33-36.) Plaintiff does

not mention the use of the spit bag at all. And again, he references being left alone in the

restraint chair at 2:34 a.m. and retrieval at 4:24 a.m. in a manner that is reasonably

understood to relate more to his deliberate indifference claim rather than to a distinct claim

of excessive force. (Doc. 23, ¶¶ 37-40.) In response to summary judgment, however,

Plaintiff argues that Defendants’ placement of him in a restraint chair for nearly two hours

without decontamination on two occasions between the two “attacks” constitutes separate

uses of force in violation of the Fourth Amendment.

Plaintiff’s significant expansion of his excessive force claims on summary judgment

is deeply prejudicial to Defendants, who lacked fair notice based on the allegations of the

amended complaint. Defendants therefore are entitled to summary judgment on the newly

articulated claims. See McColman v. St. Clair County, 479 F. App’x 1, 5-6 (6th Cir. 2012)

(granting summary judgment where the plaintiff alleged only that she was handcuffed

during the incident, without reference or allegation to the cuffs being overly tight.)

B. Qualified Immunity and the Relevant Constitutional Right

For claims that are properly asserted against them in their individual capacities, six

Defendant Officers assert qualified immunity.12 Specifically, the Defendant Officers assert

11As discussed below, however, Plaintiff’s response in opposition to summary judgment narrows his

deliberate indifference claim to Defendants’ failure to provide him with medical care after his alleged serious

injuries became more “obvious” around 4:30 a.m.

12Nurse Irwin does not assert qualified immunity. See Harrison v. Ash, 539 F.3d 510, 524 (6th Cir. 2008)

(“[W]e find that the purposes of qualified immunity do not support the extension of the doctrine to nurses

employed by a private medical provider.”) The doctrine also does not apply to the entity Defendants, and

does not preclude claims asserted against Defendants in their official capacities.

qualified immunity for Counts 1 and 2 (excessive force), Counts 3 and 4 (failure to protect

against excessive force), Count 7 (inadequate medical care), and Count 8 (failure to

protect against inadequate medical care).

Qualified immunity protects government officials “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” See Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). The doctrine “‘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 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 343, 341

(1986)). Once an individual defendant has asserted qualified immunity, the burden shifts

to the plaintiff to overcome it. “To overcome a defendant's assertion of qualified immunity,

a plaintiff must show both (1) that the defendant violated a constitutional right, and (2)

that the right was clearly established at the time of the violation.” Downard v. Martin, 968

F.3d 594, 599-600 (6th Cir. 2020) (citing Pearson v. Callahan, 555 U.S. 223, 231-32

(2009)).

To discern whether the Defendant Officers violated any constitutional right for

purposes of qualified immunity, the Court starts by identifying the constitutional right at

issue. In Counts 1 and 2, Plaintiff alleges that six Officers engaged in the excessive use

of force that violated his constitutional rights under both the Fourth and Fourteenth

Amendments.

The correct constitutional provision for use-of-force claims depends on the

plaintiff’s status at the time that force was used. Plaintiff was taken into custody on

misdemeanor charges without a warrant. In Colson v. City of Alcoa, Tennessee, 37 F. 4th

1182 (6th Cir. 2022), the Sixth Circuit confirmed that an excessive force claim brought by

an arrestee, prior to any judicial determination of probable cause, arises under the Fourth

Amendment alone. The Fourth Amendment specifically prohibits “unreasonable searches

and seizures.” U.S. Const. Amend. IV.

For claims concerning injuries sustained while in police custody, there is

sometimes a dispute over whether the Fourth or Fourteenth Amendment

governs the constitutionality of the officer's conduct. After all, the point at

which the Fourth Amendment's prohibition against unreasonable seizures

ends and the Fourteenth Amendment's substantive due process right

begins is not always obvious. … [I]n Aldini, we held that when a person in

custody asserts an excessive force claim against an officer, a judicial

determination of probable cause is the “dividing line” between application of

the two amendments. Aldini v. Johnson, 609 F.3d 858, 865-66 (6th Cir.

2010). Under the Aldini paradigm, the Fourth Amendment governs an

excessive force claim brought by an “arrestee”—one who has been arrested

but has not yet received a judicial determination of probable cause, either

through an arrest warrant or a post-arrest probable cause hearing. Id. at

866.

Id., 37 F.4th at 1187; see also, generally, Barnes v. Felix, 605 U.S. 73, 79, 145 S. Ct.

1353, 1357 (2025). Thus, Plaintiff’s two excessive force claims arise solely under the

Fourth Amendment, and not the Fourteenth.13

Aside from the two excessive force claims, Count 7 is the third most central claim

to Plaintiff’s complaint. There, Plaintiff alleges that the six Defendant Officers and Nurse

Irwin exhibited deliberate indifference when they failed to provide him with constitutionally

13The practical effect of that distinction after Kingsley v. Hendrickson, 135 S.Ct. 2466, 2473, 576 U.S. 389,

396-97 (2015), remains unclear in the Sixth Circuit. Prior to Kingsley, the Sixth Circuit suggested that

distinctions exist. See Aldini v. Johnson, 609 F.3d at 867. Post-Kingsley cases cast initially some doubt on

that notion. See Clay v. Emmi, 797 F.3d 364, 369 (6th Cir. 2015) (signaling that post-Kingsley, the

Fourteenth Amendment “objectively reasonable” test mirrors the Fourth Amendment test); accord Hopper

v. Phil Plummer, 887 F.2d F.3d 744, 752 (6th Cir. 2018). But in Chaney-Snell v. Young, 98 F.4th 699, 719

(6th Cir. 2024), the Sixth Circuit stated that the fact that a “de minimis level of imposition” would not violate

the Fourteenth Amendment “says little about whether minor force can render a “seizure” “unreasonable”

under the Fourth Amendment.” (internal citations omitted).

adequate medical care. In contrast to the excessive force claims, Plaintiff’s medical care

claims arise solely under the Fourteenth Amendment. See Colson, 37 F.4th at 1187.

The remaining claims for which the individual Defendant Officers assert qualified

immunity are derivative with respect to Plaintiff’s excessive force and medical care claims.

In Counts 3 and 4, Plaintiff alleges that the individual Defendant Officers are liable for

failing to protect him from the uses of force alleged in Counts 1 and 2. Count 8 similarly

alleges that individual Defendants failed to protect him from the inadequate medical care

set out in Count 7.14 In Chaney-Snell v. Young, 98 F.4th 699 (6th Cir. 2024), the Sixth

Circuit discussed whether a constitutional provision like the Fourth Amendment or the

Equal Protection Clause supports a failure-to-intervene claim for an excessive use of

force, or whether such claims are founded on the text of 42 U.S.C. § 1983 itself. The

appellate court acknowledged the lack of clarity. “[W]e have held that an officer who fails

to intervene to prevent another officer's excessive force can face liability for that

force under § 1983. … That said, our cases leave the source of this failure-to-

intervene theory unclear.” Id., 98 F.4th at 721 (emphasis original). Consistent with

Chaney-Snell, this Court finds it unnecessary to determine the constitutional origins of

Plaintiff’s failure-to-protect and/or failure-to-intervene claims. All Defendants are entitled

to summary judgment based on the elements of the claims alone.

C. Summary Judgment is Granted to Officer Shouse on Count 1 and to

Officer Tincher on Count 2 but is Otherwise Denied for Plaintiff’s Two

Excessive Force Claims

14Plaintiff’s remaining four claims against other Defendants are also derivative with respect to his excessive

force and inadequate medical care claims. Count 5 alleges that Sheriff Leahy and the Board are liable for

their failure to supervise the excessive use of force. Count 6 alleges that Sheriff Leahy the Board were

deliberately indifferent to and “ratified” the excessive use of force. Count 9 alleges a failure to supervise

inadequate medical care. And Count 10 alleges that SHP, the Sheriff and the Board were deliberately

indifferent to and “ratified” inadequate medical care.

Defendant Officers argue that they are entitled to qualified immunity on both

prongs of the analysis. They maintain that no reasonable jury could determine that their

use of force was so unreasonable that they violated the Fourth Amendment, and that

Plaintiff’s right to be free of the level of force that they deployed under the circumstances

was not clearly established. The Court mostly disagrees. For Count 1 – the use of force

in the booking area – the Court denies qualified immunity to all Defendants but for Officer

Shouse. The undisputed video record reflects that Officer Shouse did not participate in

any force used against Plaintiff in the booking area. For Count 2 – the use of force in the

shower room – the Court denies qualified immunity to all but Officer Tincher. It is

undisputed that Officer Tincher was not present and played no role in that second use of

force, so he alone is entitled to qualified immunity on that claim.

1. The Participating Officers’ Uses of Force Were Unreasonable

“The Fourth Amendment's standard only permits an officer to use reasonable force

to protect himself from a reasonable threat.” Aldini, 609 F.3d at 867. “To determine if a

search or seizure was unreasonable, and thus unconstitutional, courts balance the

degree of intrusion on the individual's interests against “the importance of the

governmental interests alleged to justify the intrusion.” Colson v. City of Alcoa,

Tennessee, 37 F.4th at 1186 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct.

1694 (1985) (additional quotation omitted)). The inquiry is extremely fact-specific,

considering the “totality of the circumstances.” Barnes v. Felix, 605 U.S. at 80 (quoting

County of Los Angeles v. Mendez, 581 U.S. 420, 427-428 (2017) (additional citations

omitted). The amount and degree of force must be carefully considered. See Eastep v.

City of Nashville, Tennessee, 156 F. 4th 819, 828 (6th Cir. 2025) (emphasizing that the

“ultimate inquiry” is whether the totality of the circumstances justifies the amount of force

used). Just as the “reasonableness” for lethal force will differ from the evaluation of non-

lethal force, so too will the evaluation of force that causes serious injuries differ from the

evaluation of force that causes little to no injury.

In Graham v. Connor, 109 S.Ct. 1865, 1872, 490 U.S. 386, 396-97 (1989), a case

alleging excessive force during an investigatory Terry stop,15 the Supreme Court

explained that “[t]he calculus of reasonableness must embody allowance for the fact that

police officers are often forced to make split-second judgments -- in circumstances that

are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary

in a particular situation.” Id., 490 U.S. at 396-397. The Graham Court found particularly

relevant “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., supra at 396; accord Eastep v. City of Nashville,

Tennessee, 156 F. 4th at 819. In Kingsley v. Hendrickson, the Supreme Court recognized

that the context of an individual who has already been taken into custody at a jail facility

can alter which factors are considered and what weight they are given. See, e.g.,

Kingsley, 135 S.Ct. at 2473 (holding that factors in jail setting may include consideration

of “institutional security,” while rephrasing Graham factors as inclusive of “the relationship

between the need for the use of force and the amount of force used; the extent of the

plaintiff's injury; any effort made by the officer to temper or to limit the amount of force;

the severity of the security problem at issue; the threat reasonably perceived by the

officer; and whether the plaintiff was actively resisting.“) (internal quotation marks and

15Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).

additional citations omitted.) And earlier this year in Barnes v. Felix, the Supreme Court

considered “reasonableness” during a traffic stop, reaffirming the fact-intensive inquiry

and need to take into account both individual interests and government interests. See

Barnes, 605 U.S. at 79 (quoting Graham, 490 U.S. at 396). In Barnes, the Court found

relevant the “actions the officer took during the stop, such as giving warnings or otherwise

trying to control the encounter” as well as the “nature and level of threat [the individual]

poses, either to the officer or to others.” Id., 605 U.S. at 80.

Graham, Kingsley and Barnes highlight the importance of context. A warrantless

stop of a suspected armed bank robber fleeing the scene in a vehicle objectively poses a

greater risk to the pursuing and arresting officers than would the same individual post-

arrest in the custodial Jail setting, after pat down searches have confirmed the removal

of all weapons. In the latter scenario, the seriousness of the crime on which the individual

was arrested might still be considered, but arguably is of less import than the assessment

of threat level inside the Jail.

In the case presented, Plaintiff had been arrested on misdemeanor charges and

was already in custody at the Jail when multiple Defendant Officers used a significant

amount of force, deploying OC spray and many “tactical strikes” against him. Plaintiff

alleges that the force deployed caused a loss of consciousness, multiple broken ribs and

a pneumothorax, a lacerated spleen, and a hip impingement. Plaintiff also claims facial,

dental, and cognitive injuries. The level of force required to cause such injuries warrants

close examination of the severity of the threat that Plaintiff posed, whether Plaintiff was

engaged in active resistance to Officers’ commands, and any warnings or other efforts to

limit the amount of force.

In examining the record, the court can consider all events leading up to the use of

force. See, e.g., Feagin, 155 F.4th at 603, citing Barnes, 145 S. Ct. at 1358. In the case

presented, the Defendant Officers were aware that the arresting officer had requested

assistance and that Lovell was extremely intoxicated and charged with three

misdemeanor offenses: disorderly conduct, resisting arrest, and aggravated menacing

based on his verbal threats. The video record reflects Lovell’s slurred speech and

unsteady gait. But the video also clearly shows Lovell’s slight size relative to the large

number and size of the surrounding male Officers.16

When Lovell first arrives, handcuffed and securely held by male Officers on both

sides, his verbal communications vacillate between the unintelligible and expletive-laden

phrases that express his displeasure, such as “are you fucking kidding me” and “this is

bullshit.” (DeBord Video 1.) Apart from obnoxious remarks, Lovell physically complies

with all commands, spreading his legs and submitting to two separate pat down searches

including the removal of his shoes and wedding ring.

During the pat down searches, Plaintiff’s verbal remarks focus on Bailey’s grip on

his right arm.17 Lovell’s verbal irritation increases as Irwin examines him. When officers

direct him to “calm down,” he turns his head and tells Bailey to “get the fuck off me then.”

(DeBord Video 1, 2:37-2:52.) Lovell continues to fixate on Bailey’s grip. (Id., 3:48 - 4:45.)

He states loudly that Bailey needs to “get the fuck off my arm” and “let go my arm.” (Id.,

4:22-4:40.) The Defendant Officers respond with denials of malevolent intent; Bailey

states he is not “trying to break your arm.” (Id., 4:43-4:58.) Officers repeatedly and sternly

16An arrest record describes Plaintiff as 5 foot 5 inches in height and approximately 155 pounds. (Doc. 58-

3, PageID 1301.)

17Plaintiff does not allege that Bailey violated the Fourth Amendment by gripping his arm too tightly, nor

does the Court perceive any objective unreasonableness in Bailey’s grip.

tell Lovell to “stop tensing up” and to “relax.” (Id., 4:50-4:58.) They refer to Plaintiff as

“boy” and respond to Lovell’s profanity with some of their own, directing him to “fucking

chill.” (Id., 5:08- 5:16.) Apart from verbal hostilities, several male Officers retain a secure

grip on Plaintiff during Irwin’s examination.

Notably, Officer Shouse is not among the Defendant Officers who physically

controls Plaintiff in the booking area; she remained behind the booking counter. Only after

the takedown can Officer Shouse be seen briefly moving toward her male counterparts

and Plaintiff in order to move the restraint chair out of the way. After moving the restraint

chair, she returns to the counter, emerging again only briefly at the end of the use of force

to place a protective spit hood over Plaintiff’s bleeding face. (DeBord Video 1, 5:33-6:04.)

The Officers’ decision to escort Plaintiff to the restraint chair is part of the totality

of circumstances insofar as it precipitated the first use of force. The Defendant Officers

maintain that the threat level increased when Plaintiff briefly jerked his right hand away

as Irwin attempted to place a pulse oximeter on Plaintiff’s right hand. But a reasonable

jury could find Plaintiff’s reflexive movement was not threatening given that Lovell

remained firmly under the control of the Officers at all times, and readily submitted to

Irwin’s placement of the device on his left hand. See Osborn v. City of Columbus, No. 22-

3570, 2023 WL 2523307, at *5 (6th Cir. Mar. 15, 2023) (concluding that summary

judgment was unwarranted because a plaintiff's “attempt[ ] to pull his hand away when

[an officer] initially reached for his arms ... could be considered minimal, passive

resistance that cannot justify the Officers’ uses of force,” including a takedown).

Defendants further argue that Plaintiff’s verbal agitation and failure to comply with

vague commands to “relax” or the more specific instruction to loosen his right hand18

justified moving Lovell to the restraint chair. (See DeBord Video 1, 4:40-5:23.) Defendants

contend that verbal hostility alone can be “active resistance,” citing to dictum in Goodwin

v. City of Painesville, 781 F.3d 314, 323 (6th Cir. 2015). But neither Goodwin nor any

other authority supports a conclusion that drunken comments or verbal belligerence

alone, without threatening words or some other physical action, constitutes more than

passive resistance. And independent of whether Plaintiff’s verbal protestations about

Bailey’s grip and hand movement justified placing him in a restraint chair, the totality of

circumstances do not objectively support the amount of force that Officers subsequently

deployed. See, generally, Eastep, 156 F.4th at 829 (noting ambiguity as to whether “more

narrow applications of the ‘segmented approach’” survive Barnes when evaluating the

totality of circumstances.)

As justification for their use of takedown maneuvers, tactical strikes and OC spray,

the Officers maintain that they took those actions only in response to physical “active

resistance” by Plaintiff. For example, they maintain that the first takedown in the booking

area was in response to Plaintiff’s physical “pulling away” from the four Officers escorting

him to the restraint chair. Second, they argue that the tactical strikes and OC spray were

reasonable uses of force in response to Plaintiff’s failure to offer his arms to be handcuffed

after that takedown. And third, they allege that the second takedown, strikes, and use of

OC spray in the shower room were all necessary and reasonable in response to Plaintiff’s

attempt to assault Officer Mullenix and resistance to being subdued. According to

18As the group walks, two Officers firmly grip Lovell’s arms. A few strides away from Irwin, the video shows

Lovell’s right hand is no longer clenched. (DeBord Video 1, 5:23-5:38.)

Defendants, Plaintiff’s active resistance substantially elevated the threat level. But

genuine issues of material fact preclude this Court from finding that Plaintiff engaged in

any active resistance.

Take, for example, the booking area incident. Defendants claim that Plaintiff

“increased… efforts to pull away” from Defendants Bailey and Paff as they escorted him

to the restraint chair. (Doc. 58-7, PageID 1355 (Bailey’s statements in RTR report); Doc.

55, Defendants’ manual filing Cler. Co. 261, 5:24-5:31.) After Paff’s takedown maneuver,

Defendants allege that Plaintiff tucked one arm under his body to prevent them from

regaining control and reapplying the handcuffs they had earlier removed. In support, they

rely in part on their unsworn statements in the RTR report and the audio portion of the

video in which an Officer continually yells: “Put your hands behind your back” and “Stop

resisting.”

But a picture speaks a thousand words. And the video and still pictures from the

record do not match the Officers’ shouted words or the statements in the RTR report.

(See Doc. 58-7.) Simply put, the video of the booking area incident does not show Lovell

deliberately and actively pulling away before Paff executed his take-down maneuver. And

after Paff executes the takedown, the images show a largely motionless Lovell under the

full physical control of four much larger male Officers who have him securely pinned.

Contrary to Defendants’ report that Plaintiff was actively resisting orders to present his

arms for them to re-apply handcuffs, the video appears to support Plaintiff’s assertion that

neither arm was tucked beneath his body. See also, generally, Rudlaff, 791 F.3d at

641 (“[Active resistance] includes refusing to move your hands for the police to handcuff

you, at least if that inaction is coupled with other acts of defiance.” (emphasis added)). In

the video, Officers Bailey and Mullenix appear to retain their grip on each of Lovell’s upper

arms as he falls. (DeBord Video 1, 5:31-5:36.) A fifth Officer is visibly ready to step in

should Lovell exhibit any resistance, which he does not appear to do. Over a 14-20

second period, an Officer sprays OC spray directly toward Lovell’s face, while others

deliver “tactical strikes,” including closed fist punches. (Id., 5:33 – 5:53.)

Defendants alternatively argue that their significant use of force was justified based

on institutional risk alone, even without active resistance.19 Citing Cretacci v. Call, 988

F.3d 860 (6th Cir. 2021), they insist that a court may consider “the jail's legitimate interest

in maintaining their facility” and “defer[ ] to policies and practices that are needed to

preserve internal order and discipline and to maintain institutional security.” Id., at 869

(additional citations and quotation marks omitted). At the time of the first incident, Lovell

was uncuffed and exhibiting increased verbal irritation with Bailey’s grip. In such a fraught

setting, Officers suggest that the use of force was justified for any perceived active

resistance due to the possibility of risk, even if it is later deemed that Plaintiff engaged in

no more than passive resistance.20

19Defendants also briefly argue that force is objectively reasonable whenever it is used “to preserve internal

order and discipline to maintain institutional security… in a jail setting.” (Doc. 69, PageID 1854.) In support

of the proposition that non-lethal force may be used without any security risk or threat at all, Defendants

cite to the majority opinion in a split-panel unpublished decision, Whyde v. Sigsworth, No. 22-358, 2024 WL

4719649 at *8 (6th Cir. Nov. 8, 2024), that is factually distinguishable. There, the plaintiff was hallucinating

and yelling and pounding on his cell door when officers decided to remove him from the cell and restrain

him until his condition stabilized. Whyde refused repeated orders to present his hands to be cuffed, and

subsequently refused two orders to turn around after officers entered his cell to cuff him. Officers then took

Whyde to the ground, at which point Whyde continued to actively resist attempts to restrain him. It was

undisputed that Inmate Whyde disregarded multiple specific and direct orders (to present his hands and

turn around) and the takedown was to ensure his own safety as well as that of the officers. Additionally, an

unpublished case cannot overrule controlling case law that holds that the security risk or threat level

remains an important Fourth Amendment consideration.

20Defendants also cite to their expert’s opinion that Defendants should be awarded qualified immunity on

all counts. (Doc. 56-16.) Plaintiff’s expert offers opinions incompatible with qualified immunity. (Doc. 56-21.)

The Court declines to consider either expert’s opinion on the ultimate legal issues in this case.

But Cretacci is easily distinguished. In that case, officers were actively

investigating an overheard threat by one inmate to stab another. The plaintiff was sitting

in the dayroom and heard the officer’s order to lay down but chose not to comply,

physically disobeying the direct order. In response, an officer fired a pepperball launcher

that struck him on the arm. Cretacci then stood up and began yelling – another physical

act of disobedience. After repeating the order to lie down, the officer launched a second

round of pepperballs that hit the plaintiff in the back. In short, the institutional threat (a

potential stabbing) was significant and the plaintiff was engaged in clear physical

resistance (standing up and yelling at officers in response to a command that he lay down)

when a single officer deployed minimal force (pepperballs to plaintiff’s arm and back) that

“led to only minor injuries – bruises that lasted a few days.” Id. at 869. In contrast to

Cretacci, a reasonable jury could conclude that the institutional threat in the Jail was

virtually non-existent, that Lovell never engaged in any physical resistance at any point,

and that multiple Officers reacted with an overwhelming display of non-lethal force that

caused significant injuries. In the face of no more than passive resistance, the Officers’

use of such force while Plaintiff lay prone and fully subdued in the booking area was

objectively unreasonable.

By contrast, Defendant Shouse is entitled to qualified immunity for the first use of

force in the booking area (Count 1). Although she did apply a spit hood at the end of that

use-of-force, Plaintiff cites to no case that suggests that the act of placing a protective

spit hood over an inmate’s actively bleeding face at the conclusion of an altercation with

other Officers constitutes unreasonable force in violation of the Fourth Amendment.

Turning next to the objective reasonableness of the Defendant Officers’ second

use of force in the shower room, Count 2, the same result is obtained. Except for Officer

Tincher who was absent at that time,21 five Defendant Officers participated in the shower

room incident.22 Without belaboring the point, the video record again reflects a

discrepancy between the audio portion of the video, in which Officers yell “stop resisting,”

and the visual portion.

Defendant Officers cite to their post-incident statements in the RTR report that

Plaintiff suddenly jumped up off the bench and charged Defendant Mullenix during the 11

seconds that the shower door remained closed. (See Doc. 58-7.) If true, Plaintiff’s

physical assault on Mullenix would constitute a significant threat that could justify

significant force. Defendants insist that because Plaintiff has no present memory of what

transpired, this Court must fully credit the RTR report. And in addition to the initial assault,

statements in the RTR indicate that Plaintiff continued to actively resist them after the

takedown, again keeping his arms beneath his body to avoid being handcuffed.

But the extensive video record casts doubt on the statements in the RTR report

and allows a reasonable jury to discredit the Officers’ accounts. Based on the visual

evidence presented as well as recordings of Plaintiff’s contemporaneous comments and

post-incident recorded phone calls, a jury could conclude that Plaintiff was physically

incapable of charging or assaulting Mullenix behind the closed shower door, and did not

21Based on his undisputed absence, Officer Tincher is entitled to qualified immunity on Count 2.

22In their reply memorandum, Defendants present a new argument that Shouse is entitled to summary

judgment on Count 2 because Plaintiff does not name her in his Response but focuses his argument on

Officers Bailey, Pemberton, Mullenix and Paff. In addition to the procedural impropriety of presenting new

argument in a reply memorandum, Defendants are wrong. In his Amended Response, Plaintiff clearly

identifies Shouse’s action in punching Lovell four times in his leg and twisting his legs into unnatural

positions as excessive uses of force in the shower room. (Doc. 81 at PageID 2522-2523, citing DeBord

Video 2, 4:10-4:22.)

engage in any active resistance or combat thereafter. The video record strongly suggests

that Plaintiff had some level of injury before entering the shower room. The video also

depicts him in a defensive posture from the outset of the second incident. In one image,

he is on the floor with both hands protecting his neck – contradicting Defendants’ account

that he kept his hands beneath his torso to avoid being handcuffed. (Doc. 81-3, PageID

2625.)

A reasonable jury also could conclude that any body movements made by Plaintiff

during his fall and as the Officers struck him were involuntary. See Goodwin v. City of

Painesville, 781 F.3d at 324 (holding that a reasonable jury could discredit evidence that

officers told plaintiff to “quit resisting” given contrary evidence that plaintiff’s body

moments were involuntary); see also Bates v. Hale, No. 1:22-cv-488-MWM-SKB, 2024

WL 78532 (S.D. Ohio Jan. 8, 2024) (affirming denial of summary judgment based on

genuine issue of material fact concerning whether force was used in room without video,

despite officer reports denying use of force at that time). Therefore, Lovell has presented

sufficient evidence to present to a jury that both uses of force by the Defendant Officers

who were involved in each incident – in the booking area and in the shower room – were

unreasonable and in violation of the Fourth Amendment.

2. Plaintiff’s Showing of a Clearly Established Right

In addition to relying heavily on the RTR report to argue that their uses of force

were not unreasonable, Defendant Officers argue that even if they violated the Fourth

Amendment, they did not do so in a way that was “clearly established” at the time. To

overcome the assertion of qualified immunity, Plaintiff must cite to “a closely analogous

precedent with ‘facts like the ones at issue here’ that placed the constitutional question

beyond debate.” Feagin, 155 F.4th at 603 (quoting Rivas-Villegas, 142 S. Ct. at 8,

additional citation omitted). In Feagin, the Sixth Circuit reversed the denial of qualified

immunity after stressing the plaintiff’s burden to cite to “‘on-point” and binding caselaw.

Id., (quoting Moore, 126 F.4th at 1167 (citation modified)).

The combination of these two inquiries -- the Fourth Amendment's

reasonable officer test and qualified immunity's fair notice test -- impose two

significant hurdles for plaintiffs alleging excessive force claims. See

Browning v. Edmonson County, 18 F.4th 516, 537 (6th Cir. 2021) (Murphy,

J., concurring in part and dissenting in part). After all, to prevail, a plaintiff

must show the officer was doubly unreasonable --unreasonable in using

force and unreasonable in his assessment of the facts and law -- leaving

“all but the plainly incompetent or those who knowingly violate the law”

shielded from liability.

Id., at 603-604 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also Farris v.

Oakland County, Michigan, 96 F.4th 956 (6th Cir. 2024) (holding that “[e]xcept in obvious

case…[plaintiffs] must identify analogous caselaw clearly establishing that an officer’s

specific force violated the Fourth Amendment under the circumstances.”)

Defendants do not contest that it was clearly established and beyond debate in

2021 that the Fourth Amendment prohibited the use of force upon an inmate who was

“restrained by handcuffs and under control.” (Doc. 69, PageID 1857.) But Defendants

insist that their use of force did not violate “clearly established” law because Plaintiff was

not secured by handcuffs at the time that force was deployed. And in Defendants’ telling,

“the record clearly shows active resistance and a cessation of strikes once ….[Plaintiff]

was restrained in handcuffs.” (Doc 69 at PageID 1858.)

The Court has already explained why a reasonable jury could conclude that

Plaintiff never engaged in active resistance and posed no threat. But Defendants’

emphasis on the issue of handcuffs raises the question of whether handcuffs alone make

a difference. In other words, does the use of OC spray and tactical strikes, when a pretrial

detainee is engaged in no more than passive resistance and is well-secured and

physically pinned down by multiple officers - but not handcuffed - violate clearly

established Fourth Amendment law? Defendants’ own caselaw answers this question

affirmatively. See, e.g., Goodwin, 781 F.3d at 327-328 (discussing multiple cases holding

that the use of non-lethal force violates the Fourth Amendment after an arrestee is no

longer resisting or is incapacitated). In short, a reasonable officer would have known in

February 2021 that the Fourth Amendment is violated by using significant force against a

pretrial detainee who is fully controlled and/or is incapacitated, is not engaged in active

resistance, and poses no threat. No controlling caselaw provides an exception for the use

of force so long as the subdued detainee remains free of handcuffs. See Baker v. City of

Hamilton, 471 F.3d 601, 607-08 (6th Cir. 2006) (“That [the arrestee] was not handcuffed

at the time he was struck does not preclude a finding of unreasonableness.”); Malory v.

Whiting, 489 F. App’x 78, 85 (6th Cir. 2012) (rejecting the argument that the right to be

free from excessive force once subdued was not clearly established because the plaintiff

was not handcuffed); see also, Eastep, 156 F.4th at 830 (“[T]he use of force after a

suspect has been incapacitated or neutralized is excessive as a matter of law”) (quoting

Baker, 471 F.3d at 607)); Feagin, 155 F.4th at 603 (holding that liability is imposed when

an officer tases a suspect who poses no danger and is fully compliant or has completely

ceased resisting at the time of tasing.)23

23In Feagin, the Sixth Circuit found “plenty” of active resistance but held that even if record left “the exact

nature of the threat or degree of resistance unclear,” qualified immunity required the court to give the

defendant officers the benefit of the doubt in a case involving non-lethal taser use. Notably, Feagin did not

alter the controlling standard in a case like this one, where a reasonable jury could conclude that there was

no active resistance at all, and the amount of force deployed – while non-lethal – was significant enough to

result in serious injuries.

In addition to the clearly established caselaw cited above, Plaintiff cites to Jennings

v. Fuller, 659 F. App’x 867 (6th Cir. 2016). In that case, videotape showed that Jennings

disobeyed a verbal command to keep his hands up on a wall during a pat down search in

the booking area, briefly but non-aggressively lowering one hand. Id. at 869. In response,

an officer twice his size “smashed him against a concrete wall, slammed him onto a metal

bench, and then pinned him to the ground.” Id. at 867-868. Unlike this case, Jennings

admitted to actively resisting once other officers jumped into the fray. Those officers

engaged in “all sorts of rough handling,” eventually tasing Jennings and securing him face

down on a restraint bed where they left him unattended for three hours. Id. at 870. The

Sixth Circuit denied qualified immunity.24 Though Jennings is unpublished, it is persuasive

authority that the use of force will violate “clearly established” Fourth Amendment law if

there is no evidence that the inmate “posed a threat to anyone.” Id.25

Defendants attempt to distinguish Jennings on grounds that Lovell resisted arrest

and was charged with aggravated menacing for verbal threats prior to his arrival at the

Jail. But a reasonable jury still could conclude that Defendants’ use of force was such a

“gross overreaction” to any possible threat that Plaintiff posed after being taken into

custody that it violated clearly established Fourth Amendment law. See id. at 870.

Defendants’ argument that Plaintiff was engaged in a greater amount of active resistance

24Following the Sixth Circuit’s decision, a jury awarded Jennings approximately $19 million, but the trial

court granted the defendants’ motions for a significant remittitur. See Jennings v. Fuller, No. 13-13308,

2017 WL 2242357 (E.D. Mich. May 23, 2017).

25Plaintiff also cites to Jennings to support newly asserted excessive force claims regarding the amount of

time he spent wearing a spit bag in a restraint chair prior to being decontaminated. As discussed infra,

those claims are not cognizable due to Plaintiff’s failure to properly plead them. Additionally, the

unpublished Jennings is not “clearly established” caselaw that would have informed Defendant Shouse in

2021 that the mere act of placing a protective spit hood over Plaintiff’s bleeding face immediately following

a violent altercation could be considered a use of force at all, much less excessive force.

than in Jennings is persuasive only if this Court resolves the genuine issues of material

fact in their favor, which the Court cannot do on summary judgment.26

D. Summary Judgment is Granted on Counts 3 and 4

Although the participating Defendant Officers are not entitled to summary judgment

on Counts 1 and 2, they are entitled to judgment on several related claims. For example,

Counts 3 and 4 allege that all Defendant Officers violated both Fourth and Fourteenth

Amendment rights by failing to intervene or protect Plaintiff from each other’s objectively

unreasonable use of force. In Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997), the Sixth

Circuit held that in order to be liable on a failure-to-intervene claim, an officer first must

have “observed” the force “or had reason to know” that excessive force would be used.

Second, the officer must have “both the opportunity and the means” to stop it. To have

that opportunity, a plaintiff must show that the use of force occurred over a sufficient span

of time for the observing officer to intervene. Again, the focus is on the totality of

circumstances, including whether the use of force was continuous or occurred at different

times, what the observing officer was doing at the time the force occurred, and whether

statements made by the officers suggested the use of force was imminent or whether it

occurred without warning. See Chaney-Snell, 98 F. 4th at 722 and 733.

In Chaney-Snell, an arrestee who pled guilty to attempting to resist arrest sued for

excessive force and for failure-to-intervene, alleging that an officer twice punched him in

the face while another kneed him in the back and dragged him across the floor after he

had peacefully surrendered. Defining the elements of a failure-to-intervene claim, the

26A witness in Jennings had reported that he had smoked crack and discharged a gun prior to his arrest. In

this case, the record is silent concerning what details the Defendant Officers knew about the degree to

which Lovell resisted arrest or engaged in kicking the inside of the police vehicle during transport.

Sixth Circuit first considered “[h]ow long is long enough?” for an officer to have a realistic

chance to end another’s unlawful use of force. The court observed that force that lasts

“ten seconds or less” would not provide sufficient time to intervene, whereas “ongoing

force that lasts a minute or more” often will prove “long enough” to intervene. Id., 98 F.4th

at 722 (collecting and reviewing cases). In addition to the length of time, Chaney-Snell

noted the relevance of whether the allegedly unlawful force continued “unabated” or

whether it occurred at discrete and episodic moments, such as two punches separated

by a brief interlude. Id. at 723 (quoting Wells v. City Dearborn Heights, 538 F. App’x 631,

634-35, 640 (6th Cir. 2013)). “Plaintiffs will … have a more difficult time showing that

officers could have ended force if they were distracted by other duties rather than merely

looking on, but “will have an easier time holding officers liable for a short use of force if

the officer who engaged in it signaled an intent to do so ahead of time.” Id. (citations

omitted.) Chaney-Snell reversed the denial of qualified immunity in part because - while

the district court had treated the actions of the officers as a single continuous use of force

- no published case law defined when force should be treated as “a single continuous use

of force” rather than as “quick and discrete actions.” Id. And if the punches, the kneeing

and the dragging were viewed as individual “incidents,” “a reasonable officer could believe

that each separate incident ended too quickly to trigger ‘a duty to intercede.’” Id. (quoting

Barton, 726 F. App’x at 367).

In this case, all six Defendant Officers are entitled to qualified immunity on the

failure-to-intervene claim in the booking area incident. Defendant Shouse is entitled to

qualified immunity because Plaintiff does not identify how she could have prevented the

takedown, which occurred suddenly and without warning. Shouse is also entitled to

qualified immunity for the 14-to-20-second deployment of force after the takedown, which

includes tactical strikes and the use of pepper spray. Given the short time frame and

totality of circumstances, Shouse was distracted by her actions in moving the restraint

chair out of the way. In addition to that distraction, video records confirm that her ability

to see (including her ability to independently determine whether Plaintiff was actively

resisting) was limited by her physical position and her fellow officers’ relatively large

frames obscuring her view. Contrast Laury v. Rodriguez, 659 F. App’x 837, 848 (6th Cir.

2016).

Though more actively engaged, the remaining Defendant Officers are also entitled

to qualified immunity on Count 3 based on their lack of opportunity to intervene in the

booking area. The brief incident began without warning, after the abrupt takedown by

Paff. The fact that four Officers were simultaneously engaged in inflicting force limited

their ability to observe the force being inflicted by others. The fifth officer was similarly

distracted by trying to position himself to assist his fellow officers with a limited ability to

see past their physical frames in seconds in which one officer was yelling “stop resisting.”

No reasonable jury could find that any of the six Officers had the opportunity or means to

prevent the excessive force. See Wright v. City of Euclid, Ohio, 962 F.3d 852, 872 (6th

Cir. 2020). In addition, a “failure-to-intervene” claim against an officer who is himself

simultaneously engaged in alleged excessive force is redundant. See Riethmeier v.

Oakland County ___ F. Spp.3d ___, 2025 WL 3046196, at *13 (E.D. Mich. Oct. 30, 2025)

(granting summary judgment to officers on failure-to-intervene claim because they

themselves were the source of the excessive force).

The failure-to-intervene claim regarding the second use of force in the shower

room, Count 4, presents a closer issue, in part because the total time during which the

Defendant Officers deployed a takedown, dozens of tactical strikes, and OC spray, was

more than a minute. Even if the Officers had sufficient time to intervene, however, they

remain entitled to qualified immunity in the absence of any on point and controlling

caselaw that “clearly established” that an officer whose focus and ability to observe the

conduct of others is distracted by his own simultaneous use of force can be held liable for

a failure-to-intervene. Therefore, the Court grants qualified immunity to all Defendant

Officers on both failure-to-intervene claims, Counts 3 and 4.

E. Summary Judgment is Granted on Plaintiff’s Deliberate Indifference

Claims (Count 7)

Count 7 of Plaintiff’s amended complaint alleges that all six Defendant Officers and

Nurse Irwin violated the Fourteenth Amendment by failing to provide him with adequate

medical care. Irwin argues that she is entitled to summary judgment based on Plaintiff’s

inability to prove that she rendered deficient care. The six Defendant Officers assert

qualified immunity in part based on the same argument - that Plaintiff cannot prove a

constitutional violation. Even if he could prove constitutionally deficient medical care, the

Defendant Officers assert that they remain entitled to qualified immunity based on

Plaintiff’s inability to prove that “clearly established” law prohibited their conduct.

1. Defining the Scope of Plaintiff’s Medical Care Claims

A defendant violates an inmate’s constitutional right to adequate medical care

when he or she exhibits deliberate indifference to the inmate’s serious medical need. In

order to prove a constitutional violation, Plaintiff must show both an objective component

- that he had a sufficiently serious medical need - and a subjective component - that each

Defendant had the requisite level of subjective awareness of his substantial risk of serious

harm. See, generally, Farmer v. Brennan, 511 U.S. 825 (1994); Brawner v. Scott Cnty.,

14 F.4th 585 (6th Cir. 2021).

On summary judgment, Defendants argue that they did not exhibit deliberate

indifference to Plaintiff’s serious medical needs at any time. In his complaint, Plaintiff does

not dispute the constitutional adequacy of his medical care after 11 a.m., when Nurse

Davis examined him and ordered x-rays that led to his transfer to a local hospital. Instead,

Plaintiff disputes only the adequacy of the medical care provided prior to Nurse Davis’s

examination. Count 7 specifically alleges that all six Defendant Officers and Nurse Irwin

caused “further injury” by failing to “take reasonable measures” to provide him with more

immediate medical care. But the complaint does not identify the nature of the “further

injury”, nor does it specifically allege when each individual Defendant learned of his

alleged need for additional care but failed to attend to that need within a reasonable time.

Further narrowing the scope of Plaintiff’s claim, Plaintiff does not challenge the

Defendant Officers’ assertion that he had no serious medical need that was sufficiently

obvious to a layperson before 4:30 a.m. Rather, Plaintiff argues that his need for

increased medical care had become “obvious” when the Defendant Officers took him to

the shower room and released him from the restraint chair a second time. (See Doc. 81,

PagID 2554.) The Court agrees with Plaintiffs’ implicit concession that he did not show

an “obvious” serious medical need for which more immediate medical attention was

required prior to 4:30 a.m. Thus, even if Plaintiff initially sought to plead deliberate

indifference based on the Officers’ failure to offer decontamination immediately after

deploying OC spray, he has abandoned any claim on summary judgment. Accordingly,

the Court construes Count 7 on summary judgment as limited in scope to the roughly six

and a half hour delay in medical treatment between 4:30 a.m. and 11 a.m., during which

Nurse Irwin and the six Officers allegedly exhibited deliberate indifference by failing to

provide him with greater medical care.

A claim that a defendant violated constitutional standards based on a delay in

treatment is generally more difficult to prove than a complete denial of treatment. “Where

a prisoner has received some medical attention and the dispute is over the adequacy of

the treatment, federal courts are generally reluctant to second guess medical judgments

and to constitutionalize claims which sound in state tort law.” Westlake v. Lucas, 537 F.2d

857, 860 n.5 (6th Cir. 1976). In addition, in order to prove his claim against each individual

Defendant, Plaintiff must show that each exhibited deliberate indifference to his serious

medical needs during the relevant time frame. See also Hehrer v. County of Clinton,

Michigan, ___ F.4th ___, No. 24-2016, 2025 WL 3564162 at *6 (6th Cir. Dec. 12, 2025)

(holding that a plaintiff must overcome the assertion of qualified immunity for each

defendant, citing Greene v. Crawford County, Michigan, 22 F.4th 593, 607 (6th Cir.

2022)).

In the case presented, the record reflects that Defendants Tincher, Bailey, and

Shouse were not present and had no interaction with Plaintiff between 4:30 a.m. and 11

a.m.27 Given their absence and Plaintiff’s failure to cite to evidence that they became

27Plaintiff does not refer to Bailey or Tincher in his memorandum in opposition to summary judgment on

Counts 7 and 8, and therefore has abandoned deliberate indifference claims against those two Defendants.

Although Plaintiff does refer to Defendant Shouse, the video record confirms that she was not present and

did not interact with Plaintiff during the relevant time period.

aware of his serious medical need between 4:30 a.m. and 11:00 a.m., those three

Defendant Officers are entitled to summary judgment on Count 7.28

2. Plaintiff’s Failure to Prove a Fourteenth Amendment Violation in Count 7

The three remaining Officers, Mullenix, Pemberton and Paff, argue that Plaintiff

cannot overcome their assertion of qualified immunity in part because he cannot establish

medically deficient care that violates the Fourteenth Amendment. Nurse Irwin similarly

argues that no constitutional violation occurred. The Court agrees that Irwin, Mullenix,

Pemberton and Paff did not exhibit deliberate indifference to any serious medical need

during the relevant time period in violation of the relevant Fourteenth Amendment

standard. Therefore, those four Defendants are also entitled to summary judgment on

Count 7.29

a. The Fourteenth Amendment Deliberate Indifference Standard

On February 28, 2021 when the events in question took place, courts required

plaintiffs proceeding under the Fourteenth Amendment to prove the same objective and

subjective components of a deliberate indifference claim as is required under the Eighth

Amendment. See Farmer v. Brennan, 511 U.S. 829 (defining Eighth Amendment

standard). But in September 2021, the Sixth Circuit held in Brawner v. Scott Cnty., 14

F.4th 585, that a lower burden of proof applies to the subjective component of Fourteenth

Amendment claims brought by pretrial detainees. Under the Eighth Amendment, a plaintiff

must show that “an official kn[ew] of and disregard[ed] an excessive risk to inmate health

or safety.” Farmer, 511 U.S. at 837. So an Eighth Amendment plaintiff must show that the

28In addition, despite Plaintiff’s insistence in his responsive memorandum that Officer Newsome also was

deliberately indifferent to his medical needs, Newsome has never been a named Defendant.

29Plaintiff’s failure to prove an underlying constitutional violation serves as an additional basis for dismissal

of deliberate indifference claims against Tincher, Bailey, and Shouse.

official was “both … aware of facts from which the inference could be drawn that a

substantial risk of serious harm exist[ed],” and that the official actually drew the inference.

Id. In other words, the subjective component under the Eighth Amendment requires proof

of the official’s actual knowledge.

By contrast, Brawner held that a lower standard akin to civil recklessness applies

to the subjective component of Fourteenth Amendment claims. Brawner defined the new

standard as “more than negligence but less than subjective intent -- something akin to

reckless disregard.” Brawner, 14 F.4th at 596 (quoting Castro v. County of Los Angeles,

833 F.3d 1060, 1071 (9th Cir. 2016) (en banc)). The Sixth Circuit recently clarified that

Brawner applies retroactively to any deliberate indifference claim brought by a pretrial

detainee – regardless of when the incident occurred. See Hehrer, ___ F.4th ___, 2025

WL 3564162 at *5. Therefore, the new Brawner standard for the subjective component

controls whether Plaintiff can establish his Fourteenth Amendment claim.

b. Plaintiff’s Failure to Prove the Objective Component

Although Brawner altered the subjective component, it did not change evaluation

of the objective component of a claim based on deficient medical care. The objective

component of a deliberate indifference claim requires Plaintiff to show a medical need

objectively “serious” enough to require some medical treatment, meaning that the

condition posed a substantial risk of serious harm if left untreated. But the existence of a

medical condition, standing alone, is not enough. To fully satisfy the objective component,

the plaintiff also must show that his serious medical need was not addressed within an

objectively reasonable time frame. Here, Defendants argue that Plaintiff cannot prove that

objective component.

A plaintiff can establish a serious medical need if the evidence shows a need “that

is so obvious that even a lay person would easily recognize the necessity for a doctor’s

attention.” Grote v. Kenton Cnty., 85 F.4th 397, 406 (6th Cir. 2023) (internal quotation

omitted). How “obvious” a medical need is (including whether the condition requires

emergent treatment) determines whether additional proof is required to satisfy the

objective component.

[I]n cases where the medical need is “‘so obvious that even a layperson

would easily recognize the necessity for a doctor's attention,’ the plaintiff

need not present verifying medical evidence to show that, even after

receiving the delayed necessary treatment, his medical condition worsened

or deteriorated.” Blackmore, 390 F.3d at 899-900 (quoting Gaudreault v.

Mun. of Salem, 923 F.2d 203, 208 (1st Cir. 1990)). “Instead, it is sufficient

to show that he actually experienced the need for medical treatment, and

that the need was not addressed within a reasonable time frame.” Id. at 900.

Burwell v. City of Lansing, Michigan, 7 F.4th 456, 463 (6th Cir. 2021) (quoting Blackmore

v. Kalamazoo County, 290 F.3d 890 (6th Cir. 2004)).

Here, Plaintiff voiced pain complaints and exhibited some level of physical injury

consistent with the need for medical care around 4:30 a.m. The video record confirms

that Lovell required assistance to walk, was bent at the waist, and announced, “I think I

need to see somebody right now” as he left the shower room. (DeBord Video 3, 7:40-

7:50.) Mullenix obtained a wheelchair, and Pemberton and Paff assisted him into the chair

and reassured him that the nurse would soon check him. (Id., 7:45-8:00.) Lovell audibly

exclaims and groans and complains of rib pain and a broken dental device.

But Defendants assert that Plaintiff’s rib fractures and associated internal injuries

were latent or hidden, and were not so obvious as to put them on notice that he required

immediate or emergent medical treatment at the time that they interacted with him. Based

on their assertion that the need for emergent treatment was not obvious, Defendants

further argue that Plaintiff cannot prove that the six and a half hour delay that he

experienced before receiving a more complete evaluation by Nurse Davis was

unreasonable, or that the delay caused any harm.

The video record confirms that Paff advised Irwin both of Plaintiff’s complaints of

rib pain and of the pain patch discovered on his knee. (DeBord Video 3, 8:20-8:40.)

Although Irwin asks about the pain patch, she focuses her exam on Plaintiff’s restraint

points, prompting Plaintiff to protest: “It’s not my knee, it’s my upper body.” In an affidavit,

Irwin attests that she also palpated his torso, but the Court credits Plaintiff’s account that

she did not do so at that time based on video evidence. After Irwin departs, Defendant

Officers help Plaintiff to a bed in Cell 309 so that he could lay down for the remainder of

the evening. In response to Plaintiff’s statement that he “hurt bad,” Paff responds

reassuringly and advises Plaintiff to “let me know if you need anything.” (DeBord Video 4

0:45-1:15.) Plaintiff states that he believes his ribs are broken and asks for a mat. The

Officers do not directly respond to his comment about his ribs but tell him that they will

look into getting him a mat later after he gets some sleep. (DeBord Video 3 at 9:10-9:44.)

There is no further record of any complaints or requests for medical attention.

Because Plaintiff does not dispute the adequacy of medical care beginning around

11 a.m., the evaluation of the objective component of his claim boils down to whether the

delay in his care between 4:30 a.m. and 11 a.m. was objectively “reasonable” under the

Fourteenth Amendment. What constitutes a reasonable time frame for treatment varies

based on the nature of the medical condition. Here, Plaintiff’s evidence of the type of

“obvious” injury that would require emergent medical treatment at about 4:30 a.m. is

insufficient to prove the objective component of his claim.

Obvious symptoms of a heart attack or stroke or profuse bleeding from a stab

strongly suggest a need for immediate or emergent medical care. Complaints of an

earache or toothache do not. Broken bones fall somewhere in between these two

extremes, depending on the circumstances. An open wound exposing a broken bone

suggests a more urgent need for treatment than does a hidden hairline fracture. In

multiple cases, courts have found no constitutional violation where x-rays were delayed

for hours even when the injury was an obvious fracture. See, e.g., Hubbard v. Gross, No.

05-5088, 2006 WL 2787004, at *5 (6th Cir. Sept. 27, 2006) (affirming directed verdict

because a two hour delay in obtaining medical care for an arrestee's broken hand--

though an obvious and serious medical need - was not unreasonable); Gray v. Dorning,

202 F.3d 268, 1999 WL 1336118, *1 (6th Cir. Dec. 20, 1999) (holding that an 8-hour delay

in treatment for a broken wrist was not a constitutional violation).

A rib fracture is usually less “obvious” than a fracture to a hand or foot. Here,

Plaintiff’s reported and observable rib pain did not “obviously” require emergent medical

attention to avoid a substantial risk of serious harm, such that Defendants’ decision to let

Plaintiff rest and sleep off his intoxication for six and a half hours before performing a

more complete medical assessment violated constitutional norms. Contrast Kimbrough v.

Core Civic, No. 1:19-cv-0048, 2019 WL 2501558 (M.D. Tenn. June 17, 2019) (holding

that it was unreasonable to wait 23 days to provide any medical care for plaintiff’s broken

bone). The Defendant Officers observed the clearly-intoxicated Plaintiff over the

preceding hours sleeping peacefully in the restraint chair without any indicia of severe

pain. Irwin also repeatedly observed Plaintiff comfortably asleep in the restraint chair for

much of her shift. In addition, after Irwin examined Plaintiff and the Defendant Officers

placed him in Cell 309, Plaintiff made no further complaint until he was assessed by Nurse

Davis. (Paff Aff., Doc. 50; Mullenix Aff. Doc. 49.) The fact that Plaintiff ultimately was

diagnosed with fractured ribs and other internal injuries after being referred for imaging

studies does not subject Irwin to liability for her failure to immediately order x-rays at 4:30

a.m. Mere negligence or malpractice is insufficient to state a constitutional claim. Whitley

v. Albers, 475 U.S. 312, 319 (1986).

Nor does the Defendant Officers’ reliance on Irwin’s assessment subject them to

liability. The Officers, who lacked medical expertise, acted reasonably simply by asking

Irwin to assess Plaintiff. See Hehrer, 2025 WL 3564162, at *6 (holding that officers

“typically act reasonably by referring an inmate’s health concerns to medical personnel”);

Hodges v. Abram, 138 F. 4th 980, 987-989 (6th Cir. 2025). If trained medical personnel

fail to discover a serious medical condition for which urgent treatment is needed, the

condition is unlikely to be deemed to be “obvious” to a layperson. Id.

Here, the Defendant Officers were entitled to rely on the fact that Irwin was aware

of Plaintiff’s complaint of rib pain and spoke to and examined him without ordering

additional or emergent treatment. Therefore, they are entitled to qualified immunity on

Plaintiff’s claim that they should have sought out additional care before placing him back

into Cell 309 to sleep. “A mistaken, albeit reasonable, belief that such deference to a

provider is warranted will not rise to the level of deliberate indifference.” Grote v. Kenton

County, 85 F.4th at 412 (citing McGaw v. Sevier County, 715 F. App’x 495, 498 (6th Cir.

2017)).

Plaintiff insists that the facts of this case warrant an exception to the general rule

of deference to Irwin’s medical judgment. In Hehrer, the Sixth Circuit recently set out a

list of recognized exceptions to the rule of deference:

[D]eference to medical judgments has its limits. An officer might act

recklessly, for example, if the officer does not seek medical help after an

inmate suffers from “new and alarming symptoms” since last seeing a

medical professional. Stojcevski v. Macomb County, 827 F. App'x 515, 522

(6th Cir. 2020) (quoting Barberick v. Hilmer, 727 F. App'x 160, 163-64 (6th

Cir. 2018) (per curiam)); see, e.g., Greene v. Crawford County, 22 F.4th

593, 608–09 (6th Cir. 2022); Smith, 505 F. App'x at 535. Or an officer might

act recklessly if the officer defers to an unethical healthcare worker that the

officer knows mistreats inmates. See Smith, 505 F. App'x at 532. And, of

course, an officer might act recklessly if the officer fails to implement a

medical professional's own instructions.

Hehrer, 2025 WL 3564162, at *6 (citing Howell v. NaphCare, Inc., 67 F.4th 302, 316 (6th

Cir. 2023)).

But Plaintiff does not rely on any of the Hehrer exceptions, and the facts do not

support their application. Instead, citing to Colson v. City of Alcoa, No. 3:16-cv-377, 2018

WL 1512946 at *12-13 (E.D. Tenn. Mar. 26, 2018), Plaintiff argues that the Officers’

deference was not warranted because they either knew or should have known that he

had suffered an injury to his ribs, and the Officers who were present would have observed

that Irwin did not examine Plaintiff’s torso. In Colson, the trial court denied summary

judgment after concluding that an officer who had witnessed plaintiff’s mobility issues and

pain complaints and was present for the nurse’s examination had reason to believe that

the nurse’s medical judgment was not reliable. But in Colson, the officer admitted to

subjective knowledge that the nurse’s examination was overly cursory. There are no such

admissions in this case. In addition, Colson is not sufficient to defeat the Officers’

assertion of qualified immunity because it is an unpublished district court case.

Because the extent of Plaintiff’s injuries and/or need for emergent treatment were

not obvious, his failure to present evidence that the delay in diagnosis caused any

worsening of his condition adds to his failure to satisfy the objective component of his

claim. For a nonobvious emergency condition, a plaintiff must “place verifying medical

evidence in the record to establish the detrimental effect of the delay in medical

treatment.” Hodges, 138 F.4th at 990 (quoting Johnson v. Karnes, 398 F.3d 868, 874 (6th

Cir. 2005)); see also Burgess v. Fischer, 735 F.3d 462, 470, 476-477 (6th Cir. 2013)

(facial and head fractures, which were not obvious and discovered after CT scans were

taken later, did not satisfy objective component where plaintiffs failed to show that a delay

in treatment caused injuries to worsen); Spurlin v. Wilson, 2024 WL 3745013, at *7 (W.D.

Ky. Aug. 9, 2024) (orbital bone fracture, nasal bone fracture and left rib fractures were not

“serious medical needs” because they were not “obvious or apparent to a lay person” and

there was no evidence that those injuries “were exacerbated by a delay in treatment.”)

Once Nurse Davis ordered x-rays and Plaintiff was referred for additional imaging

and outside treatment, he was provided pain medications and monitored, but did not

require any clinical intervention because his injuries were self-healing. (Doc. 57-7, PageID

1087; see also Doc. 46, PageID 834-835 (Plaintiff’s expert’s testimony that the

pneumothorax and spleen laceration can resolve on their own.)). See also May v. Akers,

5:21-cv-182-DCR, 2023 WL 2611034, at *9 (E.D. Ky. March 23, 2023) (granting summary

judgment on objective component of deliberate indifference claim under Eighth

Amendment where x-rays showed healing rib fractures that required no further

treatment.); Reynolds v. Elizabeth, No. 1:11-CV-P142-JHM, 2016 WL 1047796, at *7

(W.D. Ky., Mar. 10, 2016) (no constitutional injury where plaintiff with rib fractures went

without pain medication for 10 days but treatment did not change once he was properly

diagnosed); Loukas v. Gundy. 70 F. App’x 245 (6th Cir. 2003) (no constitutional violation

where x-rays were not taken until 18 days after injury, revealing break in foot that did not

require a cast or other procedure, but only crutches and pain medication.); Ruff v. Health

Care Adm'r, No. 3:CV-10-0603, 2011 WL 1344625, at *2-4 (M.D. Pa. Apr. 8, 2011)

(finding two-year delay in ordering an x-ray of the prisoner's fractured ribs to be

“regrettable” but finding no proof of any detrimental effect due to the delay).

In short, it was not obvious that Plaintiff’s latent injuries, which could not be

detected without imaging studies, required either urgent or emergency treatment at or

around 4:30 a.m. Because Plaintiff cannot prove that any Defendant failed to attend to

his serious medical condition within an objectively “reasonable time frame,” see

Blackmore, 290 F.3d at 900, he fails to prove the objective component of his claim.

Therefore, Nurse Irwin and the Officers who interacted with him on or after 4:30 a.m. are

entitled to summary judgment on Count 7.

c. A Failure to Prove the Subjective Component under Brawner

Even if Plaintiff could establish the objective component of his deliberate

indifference claim, all individual Defendants still would win summary judgment based on

his failure to establish a constitutional violation based on the subjective component, as

now defined by Brawner. Plaintiff has no evidence that a 6.5 hour delay in obtaining

imaging and a formal diagnosis for self-healing injuries subjected him to an unjustifiably

high risk of harm that either was known, or was so obvious that it should have been known

– much less that Irwin acted with more than negligence (at most) when she failed to

immediately order x-rays. For the same reasons, Plaintiff cannot prove that any of the

Defendant Officers exhibited the type of civil recklessness that is required to establish the

subjective component of a deliberate indifference claim under Brawner. There is simply

no evidence that they had any reason to appreciate any increased risk to Plaintiff that

accrued as a result of delaying Plaintiff’s more complete examination until later that

morning. See Erickson v. Gogebic Cnty., Michigan, 133 F.4th 703, 712 (6th Cir. 2025)

(Officer had no subjective awareness of broken rib despite use of force; broken rib was

not a visible injury that obviously required immediate medical attention).

d. A Failure to Prove the Subjective Component Under Farmer

All Defendants are entitled to summary judgment based on Plaintiff’s failure to

prove that any constitutional violation occurred under Brawner. For the sake of

completeness, however, the Court briefly considers whether - even if Plaintiff could

establish a constitutional violation under current law - a reasonable Officer would have

known that his conduct violated “clearly established” law at the time the events occurred.

Considering this issue, the Defendant Officers would still be entitled qualified immunity.

Farmer and not Brawner was the “clearly established” law on February 28, 2021. See

Hehrer, supra; see also Lawler ex rel. Lawler v. Hardeman County, 93 F.4th 919, 927-28

(6th Cir. 2024) (holding that for qualified immunity purposes, the subjective standard

established in Farmer applies to claims arising prior to September 2021). To overcome

the Defendant Officers’ reasonable reliance on Farmer, Plaintiff must show that each

Defendant subjectively perceived that his failure to seek additional immediate or

emergent medical attention created a significant risk to Lovell’s health, and that each

“‘consciously’ (not recklessly) disregarded that risk.” See Lawler, 93 F.4th at 928 (quoting

Farmer v. Brennan, 511 U.S. at 839). A “shotgun approach” that alleges that all

Defendants are equally culpable is insufficient. See Grote, 85 F.4th at 413.

As previously discussed, Tincher, Bailey and Shouse were not present when

Plaintiff asserts that his serious medical need for emergent treatment became obvious.

For the same reasons that he cannot satisfy the more lenient subjective standard of

Brawner, Plaintiff is unable to show that any of the remaining three Officers had actual

knowledge that he faced a substantial risk of harm without immediate medical attention.

In short, even if Plaintiff could establish a violation of the Fourteenth Amendment under

Brawner based on the delay in medical care, the three Officers would remain entitled to

qualified immunity due to Plaintiff’s inability to show a violation of “clearly established” law

under Farmer.

F. Summary Judgment is Granted to all Defendants on Remaining Claims

As previously stated, Plaintiff’s excessive force and medical care claims (Counts

1, 2, and 7) form the bedrock of his complaint. Seven additional claims are derivative. All

Defendants are entitled to summary judgment on all of those remaining claims.

1. Summary Judgment is Granted to Sheriff Leahy

Due to the substitution of Sheriff Stratton for claims asserted against the Sheriff in

his official capacity, the only claims that remain against Sheriff Leahy are those filed

against him in his individual capacity. Sheriff Leahy is entitled to summary judgment

because there is no respondeat superior liability under § 1983. Crawford v. Tilley, 15

F.4th 752, 761 (6th Cir. 2021). A Ҥ 1983 claim must fail against a supervisory official

unless the supervisor encouraged the specific incident of misconduct or in some other

way directly participated in it.” Cardinal v. Metrish, 564 F.3d 794, 802-03 (6th Cir. 2009)

(internal quotation marks and additional citations omitted). "At a minimum, a § 1983

plaintiff must show that a supervisory official at least implicitly authorized, approved or

knowingly acquiesced in the unconstitutional conduct of the offending subordinate."

Grinter v. Knight, 532 F.3d 567,575 (6th Cir. 2008) (quotation omitted). To prove liability

against former Sheriff Leahy, Plaintiff must show that he was actively involved in offensive

conduct that caused injury in a way that shows deliberate indifference. Helphenstine v.

Lewis County, Kentucky, 60 F.4th 305 (6th Cir. 2023) (affirming summary judgment to

supervising jailer based on a “failure to supervise” claim). In addition, Plaintiff must show

a “‘causal connection’ between the defendant's ‘active unconstitutional behavior’ and the

plaintiff's injuries.” Crawford, 15 F.4th at 761-762 (quoting Peatross v. City of Memphis,

818 F.3d 233, 242 (6th Cir. 2016)).

Plaintiff’s amended complaint contains only conclusory allegations that Sheriff

Leahy knew or should have known that the Defendant Officers would use excessive force,

and/or that he failed to train and supervise the Defendant Officers and Nurse Irwin. But

Sheriff Leahy may be held liable in his individual capacity only if Plaintiff can point to “a

specific action” that would defeat qualified immunity. See Phillips v. Roane Cnty., Tenn.,

534 F.3d 531, 544 (6th Cir. 2008) (dismissing claims against sheriff, mayor, and director

of ambulance services). Plaintiff cites to no evidence at all that suggests that Sheriff Leahy

in any way encouraged, condoned, approved or knowingly acquiesced in a violation of

Plaintiff’s constitutional rights. Plaintiff also points to no evidence of Sheriff Leahy’s

personal involvement in any use of force.

It appears that Plaintiff seeks to hold Sheriff Leahy liable solely because he was

ultimately responsible for jail policies. But that is not a sufficient basis on which to impose

“failure-to-train” liability on a supervisor. There is no evidence that Sheriff Leahy was

personally aware that the use-of-force policies were not being followed, nor does Plaintiff

point to evidence that Sheriff Leahy failed to take steps to ensure that policies were

followed. See Taylor v. Michigan Dept. of Corr., 69 F.2d 76, 81 (6th Cir. 1995). To the

extent that Plaintiff seeks to impose liability on the Sheriff based on his personal lack of

oversight, Plaintiff’s claim is more appropriately viewed in the context of Plaintiff's Monell

claim30 against the Sheriff in his official capacity (now Sheriff Stratton) rather than as an

individual capacity claim. See Poynter v. Whitley Cnty. Detention Ctr., 722 F. Supp. 3d

745, 756 (E.D. Ky. 2024) (granting summary judgment to jailer because in the absence

of personal involvement, “an attempt to hold an officer liable in his individual capacity for

his alleged failure to adequately train employees...improperly conflates a § 1983 claim of

individual supervisory liability with one of municipal liability.”) (cleaned up).

2. Sheriff Stratton and the Board are Entitled to Judgment on Monell

Claims Asserted in Count 5

The Clermont County Sheriff in his official capacity (now Sheriff Stratton) and the

Board are also entitled to summary judgment on Count 5. Count 5 alleges Monell liability

against the Sheriff and the Board31 based on their “Failure to Supervise Excessive Force.”

To succeed, Plaintiff must show that one or more County policies or customs resulted in

the alleged violation of Plaintiff’s constitutional rights. See Monell v. Dep't of Soc. Servs.,

436 U.S. at 691.

30Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

31Plaintiff’s claim against the Sheriff in his official capacity (currently Sheriff Stratton) is the same as a claim

against the County. See Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989) (holding that

an “official capacity” claim is “equivalent to a suit against the local government entity.”).

But Count 5 contains only conclusory allegations unsupported by facts. For

example, Plaintiff alleges in relevant part that “Defendants Sheriff Leahy and/or the

Clermont County Board of Commissioners failed to properly train, supervise, and monitor

the officers in their employ in [the] proper use of force,” and that the Sheriff and Board

“had knowledge of or should have had knowledge…[of] these officers’ propensity to pose

an unreasonable risk of utilizing excessive and objectively unreasonable force on inmates

under color of state law.” (Doc. 23, ¶¶ 74, 76.) Plaintiff further alleges that the County’s

“neglect to properly supervise, discipline, and train these officers indicates a systematic

intentional indifference to the rights of citizens to be free from the use of excessive and

objectively unreasonable force by members of that department through their official

policy, longstanding practice, and custom.” (Id., ¶ 77.) Last, Plaintiff alleges that the

County’s “failure to train, supervise, and monitor the officers foreseeably caused” his

injuries, and “was a reckless or intentional indifference” that was “the moving force

behind” his injuries. (Id., ¶¶ 78-79.) Vague and conclusory allegations that the Sheriff and

Board had some sort of “official policy, longstanding practice, and custom” that led its

employees to use excessive force or to exhibit deliberate indifference to Plaintiff’s serious

medical needs are insufficient to state a Monell claim. See Braunskill v. Smith, No. 1:24-

cv-140-MWM-SKB, 2024 WL 4465269, at *4 (S.D. Ohio Jun. 11, 2024); Brown-Austin v.

Chambers-Smith, No. 1:24-cv-397, 2025 WL 2022262, at *13 (S.D. Ohio July 18, 2025),

R&R adopted at 2025 WL 2615030 (S.D. Ohio Sept. 10, 2025).

In addition, “[a] municipality's culpability for a deprivation of rights is at its most

tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61,

131 S.Ct. 1350 (2011). On summary judgment “the question … is whether the County’s

failure to train its employees amounted to deliberate indifference…to the rights of the

detainees.” Helphenstine, 60 F.4th at 323 (citing City of Canton v. Harris, 489 U.S. 378,

388 (1989)). This sort of claim is only available in a narrow range of circumstances where

a federal rights violation “may be a highly predictable consequence of a failure to equip

[employees] with specific tools to handle recurring situations.” Helphenstine, 60 F.4th at

323 (citing Board of Cnty. Comm’rs of Bryan Cnty. v. Brown 520 U.S. 397, 409 (1997)).

Here, Plaintiff fails to identify any specific policy or custom that caused his injuries.

Defendants also point to a lack of evidence that connects any policy to Plaintiff’s injuries.

To succeed on a failure-to-train claim, a plaintiff must show: “(1) the training

or supervision was inadequate for the tasks performed; (2) the inadequacy

was the result of the municipality's deliberate indifference; and (3) the

inadequacy was closely related to or actually caused the injury.” Ellis ex rel.

Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.

2006). Regarding the second prong, a plaintiff most commonly

demonstrates a municipality's deliberate indifference by pointing to a failure

to act “in response to repeated complaints of constitutional violations by its

officers.” Ouza v. City of Dearborn Heights, 969 F.3d 265, 287 (6th Cir.

2020) (quoting Cherrington v. Skeeter, 344 F.3d 631, 646 (6th Cir. 2003)).

Howell v. NaphCare, Inc., 67 F.4th 302, 319 (6th Cir. 2023). “Only in ‘rare’ circumstances

when the need for training is ‘patently obvious’ will a single constitutional violation suffice

to establish that a county acted with deliberate indifference.” Hehrer, 2025 WL 3564162,

at *9 (quoting Connick, 563 U.S. at 64). In his response, Plaintiff does not identify any

“rare” circumstances that would support liability based on the use of force against him

alone.

Nor does Plaintiff point to examples of excessive force used against other pretrial

detainees. In the absence of evidence of similar constitutional violations, Plaintiff cannot

show a pattern that would have put the Sheriff and the Board on notice that the Defendant

Officers’ training was inadequate. Likewise, Plaintiff points to no other incidents of a

“failure to supervise” that would have put the County on sufficient notice that its

supervision was inadequate. Plaintiff’s failure to establish a genuine dispute of material

fact concerning the adequacy of the County’s training program or its supervision is fatal

to his claim. Howell, 67 F.4th at 320.

Last but not least, Plaintiff’s response wholly fails to address any of Defendants’

arguments in favor of summary judgment on Count 5. Apart from the considerable merits

of those arguments, Plaintiff’s failure to respond amounts to an abandonment of that

claim.

3. Sheriff Stratton and the Board are Entitled to Summary Judgment on

Count 6 - Plaintiff’s “Ratification” Claim

Counts 6 asserts “ratification” theories of Monell liability based on the Officers’ use

of force. Under a ratification theory, “municipal liability attaches when a decisionmaker

who possesses final authority to establish municipal policy with respect to the action

approves the unconstitutional conduct.” Gifford v. Hamilton Cnty., No. 24-5893, 2025 WL

1541805 (6th Cir. May 30, 2025). Plaintiff alleges that the Sheriff “had final policy and

procedure making authority for the Clermont County Sheriff’s Office, its employees, and

its agents,” which authority was given to the Sheriff “through legislation by Clermont

County and the state of Ohio.” (Doc. 23, ¶ 83.) He further alleges that the Sheriff and the

Board “ratified” the Defendant Officers’ use-of-force by failing “to counsel, retrain,

discipline, or take any reasonable official action to renounce” the use of force. (Id., ¶ 84.)

By way of factual support, Plaintiff points specifically to the post-incident investigation and

alleges that the Sheriff and Board exhibited “intentional indifference” which both ratified

the Officers’ use of force and “served as the motivating force behind the unconstitutional

actions and injuries.” (Id., ¶ 85.)

In his response in opposition to summary judgment, Plaintiff contends that the RTR

report constituted ratification because an unnamed jail administrator signed off on that

report:

[T]he administrator of the Clermont County jail investigated the officers’ use

of force against Mr. Lovell on February 28, 2021, reviewing the video

footage of both incidents and each of the officers’ reports. The administrator

then issued an “RTR Report,” which affirmatively approved the officers’ use

of force as having been in full compliance with the jail’s policies and

procedures.

(Doc. 81, PageID 2558; see also Doc. 23, ¶¶ 57-58.) Thus, Plaintiff appears to assert that

the mere issuance of the RTR report is equivalent to an official Sheriff or Board policy

approving the alleged constitutional violations. (Doc. 81, PageID 2557-2558.)

The Court rejects this theory of liability, not least because it is presented for the

first time in opposition to summary judgment. Plaintiff points to no evidence that the

unidentified administrator is “responsible for establishing final government policy.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 482 (1986). In addition, Plaintiff cannot prove

that the newly-alleged “policy” of “ratification” was the “moving force” that caused his

injuries because all of his claimed injuries occurred before any such “ratification.” “An

action cannot be pursuant to something that has not yet occurred.” David v. City of

Bellevue, Ohio, 706 F. App’x 847, 853 (6th Cir. 2017); accord Pineda v. Hamilton Cnty,

Ohio, 977 F.3d 483, 496 (6th Cir. 2020) (affirming grant of summary judgment because

after-the-fact actions could not cause a prior injury).

Defendants are also entitled to summary judgment on Count 6 based on Plaintiff’s

failure to produce any evidence of a pattern of force that would establish an

unconstitutional policy or custom in this case. See Pineda, 977 F.3d at 496; Thomas, 398

F.3d at 432-433 (holding that a clear and persistent pattern must be established to show

a political subdivision condoned or ratified an unconstitutional action.)

4. Summary Judgment is Granted on Count 8, the Failure to Protect

Against Unconstitutional Medical Treatment

In Count 8, Plaintiff alleges that Defendant Officers and Nurse Irwin failed to protect

him from each other’s deliberate indifference to his serious medical needs. He alleges

that the officers who “witnessed Nurse Irwin’s grossly inadequate and inappropriate

response” and “nevertheless locked him in a cell alone for several more hours instead of

attempting to ascertain alternative [medical] care” should be held liable for failure to

protect and/or for failure to intervene. (Doc. 81, PageID 2557.)

All Defendants are entitled to summary judgment because the same deliberate

indifference standard applies to claims that a defendant violated the Fourteenth

Amendment by failing to protect a detainee from inadequate medical care. Lawler, at 926-

927. And, while the Sixth Circuit has left open the question of whether a plaintiff can

recover on a failure-to-intervene theory for inadequate medical care separate and apart

from a “failure to protect” theory,32 a plaintiff still must show that there was an “‘underlying

constitutional violation.’” See Greene v. Crawford Cnty., Michigan, 22 F.4th 593, 615 (6th

Cir. 2022) (quoting Bonner-Turner v. City of Ecorse, 627 F. App'x 400, 413 (6th Cir.

2015)). Here, there was no constitutional violation. Therefore, none of the Defendants

can be held liable for failing to protect Plaintiff from constitutionally deficient medical care,

or for failing to intervene to obtain or to provide more urgent or emergent care.

32Defendants also would be entitled to qualified immunity on any failure-to-intervene theory relating to

medical care that differs from a failure-to-protect claim, because the law supporting a separate constitutional

claim was not “clearly established” in February 2021.

5. SHP, the Sheriff and the Board are Entitled to Summary Judgment on

Monell Claims Asserted in Counts 9 and 10

The only two claims asserted against Defendant SHP are Counts 9 and 10, which

claims are also asserted against the Defendant Sheriff33 and the Board. In Count 9,

captioned as the “Failure to Supervise Inadequate Medical Care,” Plaintiff alleges that all

three Defendants acted “under color of state law,” when their “subordinates” deprived

Plaintiff of his constitutional right to medical care. (Id., ¶¶ 91-92.) Plaintiff generally alleges

that SHP, the Sheriff and the Board knew or should have known that the Defendant

Officers and Nurse Irwin “posed an unreasonable risk of being objectively, deliberately

indifferent to pre-trial detainees’ serious medical needs….” (Id. ¶ 93.) And he alleges that

the three Defendants’ failure to “properly supervise, discipline, or train” shows “intentional

indifference to the rights of citizens to be free from intentional indifference of inmates’

grave medical needs…through their official policy, longstanding practice, and custom.”

(Id., ¶ 94.)34 Without further factual support, Plaintiff concludes that the “supervising

defendants[’] conduct…displayed reckless or intentional indifference,” and “was so

closely associate[ed] with the [constitutional] deprivation that it was the moving force

behind” Plaintiff’s injuries. (Id., ¶95.)

In Count 10, Plaintiff alleges that the Sheriff “had final policymaking authority” for

the six Defendant Officers and for Nurse Irwin, (id., ¶ 100). Contradictorily, he alleges that

Defendant SHP also “had final policymaking authority for its employees and agents”

including Irwin. (Id., ¶ 101.) Plaintiff further alleges that SHP, the Sheriff and the Board

33Although Plaintiff does not specify the capacity in which he seeks to hold the Sheriff liable in Count 9 and

10, the Court construes those two claims to be asserted against Sheriff Stratton in his official capacity.

34To the extent that Count 9 relies on the conduct of Nurse Irwin as opposed to the Defendant Officers’

failure to obtain medical care, Plaintiff offers no evidence that Defendant Sheriff and the Board had any

supervisory authority or control over Nurse Irwin, an employee of SHP.

“ratif[ied]” the alleged constitutional violation by Irwin and Defendant Officers by failing to

“counsel, retrain, discipline, or take any reasonable official action to renounce the

behavior taken.” (Doc. 23, ¶ 102.) And Plaintiff asserts that the same three Defendants

exhibited “intentional indifference” after the incident(s), which was both a ratification “and

served as the motivating force behind the unconstitutional actions and injuries to

[Plaintiff].” (Id., ¶ 103.)

All Defendants are entitled to summary judgment on these final two claims based

on Plaintiff’s failure to identify any underlying constitutional violation of Plaintiff’s right to

medical care by Irwin or the Defendant Officers. Even if he could prove a constitutional

violation, Plaintiff’s claims still fail because he offers no evidence to suggest that any

specific policy promulgated by SHP, the Sheriff, or Clermont County was the “moving

force” that was responsible for his medical injuries. See, generally, Kimbrough v. Core

Civic, 2019 WL 2501558, at *3 (dismissing pro se prisoner complaint on initial screen

under 28 U.S.C. § 1915(e)(2)(B) because “an allegation that Core Civic had a duty to hire

and train competent staff is insufficient to identify a Core Civic policy and tie that policy to

Plaintiff's injury.” (internal citations omitted)). Nor does Plaintiff cite to any evidence at all

to support his ratification theory under Count 10.35

Last, and consistent with his failure to respond to the Sheriff and Board’s

arguments on Count 5, Plaintiff fails to respond to the arguments of the Sheriff and the

Board on Count 9 or to SHP’s persuasive arguments on both Counts 9 and 10. For that

35Plaintiff cites to the RTR report to support ratification of the use-of-force, but not to evidence to support

ratification of his medical treatment.

reason, Plaintiff is deemed to have abandoned the Monell claim asserted in Count 9

against the Sheriff and the Board36 as well as both Monell claims against SHP.

V. Conclusion and Order

For the reasons discussed, IT IS ORDERED THAT:

1. The motion of the County Defendants (Doc. 58) is DENIED in part and

GRANTED in part as follows:

a. The motion is GRANTED for the excessive force claim asserted against

Defendant Shouse in Count 1, as well as for the excessive force claim

asserted against Defendant Tincher in Count 2;

b. The motion as to the excessive force claims asserted against the remaining

Defendant Officers in Counts 1 and 2 is DENIED;

c. The County Defendants’ motion for summary judgment on Counts 3-10 is

GRANTED;

2. The separate motion of Defendants Nurse Irwin and SHP for summary

judgment (Doc. 57) is GRANTED in full, with all claims against those two

Defendants to be dismissed;

3. This case will proceed to trial on the excessive force claims that remain.

s/Stephanie K. Bowman _________

Stephanie K. Bowman

United States Chief Magistrate Judge

36Plaintiff’s response in opposition to summary judgment on all Monell claims limits argument to Count 6,

which asserts a “ratification” theory against the Sheriff and the Board based on the issuance of the post-

incident RTR report by a Jail Administrator.