Wysong v. City of Heath

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0067n.06

Filed: January 22, 2008

No. 06-4433

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOHN WYSONG, )

)

Plaintiff-Appellee, )

)

v. ) On Appeal from the United

) States District Court for the

CITY OF HEATH, ) Southern District of Ohio

)

Defendant-Appellant. )

Before: BOGGS, Chief Judge; KENNEDY, Circuit Judge; and JORDAN, District Judge.*

BOGGS, Chief Judge. Officers Bruce Ramage and Jaimee Coulter appeal the district

court’s denial of their motion for summary judgement based on qualified immunity. John Wysong

sued the defendants under § 1983 for using excessive force when they arrested him. This case is on

its second interlocutory appeal; the district court previously denied the defendants’ motion for

summary judgment and a panel of this court affirmed in an unpublished order. After the case

returned to the district court, the defendants took additional discovery, renewed their motion for

summary judgment, had the motion denied, and appealed again.

We reverse because Wysong cannot raise a genuine issue of material fact. He has no

evidence to support his claim, and after the previous interlocutory appeal, has admitted in a

deposition that he has no memory of the relevant events. We hold that on the undisputed facts of

*

The Honorable R. Leon Jordan, United States District Judge for the Eastern District of

Tennessee, sitting by designation.

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this case—undisputed because Wysong cannot contradict the version told by the police officers and

a disinterested witness—no constitutional violation occurred and that the officers are therefore

entitled to summary judgment.

I

A

John Wysong has suffered from diabetes for seventeen years. He takes medication to control

his disease, but on several occasions his blood sugar has plunged unexpectedly. Previous sudden

drops in blood sugar have caused Wysong to act aggressively and later not remember what happened.

During at least one of these episodes, he acted “out of control,” “resisted” his wife’s attempts to help

by giving him orange juice, and yet did not remember struggling once he recovered. Wysong was

driving home from work on July 13, 2002, at about 8:45 p.m., when he experienced a hypoglycemic

attack. He pulled into a Kroger grocery store intending to buy something to correct his blood sugar

imbalance. Wysong’s last memory before waking up handcuffed in a police car is pulling his truck

into the grocery store parking lot.

At approximately 8:49 p.m. that night, Officer Bruce Ramage of the Heath Police Department

was leaving the same parking lot when two young adult females, Trese Whytal and Mary Watring,

met him and complained that a man in a white truck was making obscene gestures and comments

towards them and was kicking the window in his truck. Officer Ramage radioed the police

dispatcher, watched the man leave his truck, noticed that the man was staggering, and then

approached the man and asked if the truck was his. The man was John Wysong. Wysong answered

“whose truck?,” turned, and ran.

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Ramage chased Wysong and radioed for help, yelling “Stop!” and “You’re under arrest!”

until he “was able to strike his shoulder blade with my open hand [and] cause[] him to go to the

ground.” Meanwhile, Officer Jaimee Coulter arrived. The two officers went over to Wysong, who

was lying on his stomach and “screaming,” and tried to get Wysong’s hands behind his back in order

to cuff Wysong.

Up to this point, Wysong does not dispute the officers’ testimony or challenge their actions.

He admits that they could not have known at this point whether his odd behavior arose from mental

illness, intoxication, or criminal intent. After this point, three different stories emerge: the story told

by the officers and Ms. Whytal, the story told by Wysong’s litigation documents, and the story told

by Wysong’s deposition.

The officers say that Wysong refused to pull his arms from beneath his body and violently

resisted their attempts to handcuff him. During this struggle, Wysong kicked Ramage and Coulter.

Ibid. Unable to move Wysong’s arm, Ramage resorted to “some open-handed strikes” on Wysong’s

leg, and with Coulter’s help was finally able to cuff Wysong’s left wrist. Officer Mark Phillips then

arrived. Phillips testified that Wysong was “flailing about his arms and legs” and that Phillips put

his knee in Wysong’s back to help subdue Wysong. The three officers finally managed to cuff

Wysong’s other wrist and get him into the squad car. Officer Ramage then interviewed Ms. Whytal

and Ms. Watring, who had witnessed the event. Whytal later swore in an affidavit that Wysong was

“out of control and struggling with the police when they tried to handcuff him. At no time was [he]

lying motionless on the ground.”

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Wysong managed to “come around” and told the officers that he was a diabetic.1 The officers

then called the paramedics, and told them to go to the police station because the station was roughly

the same distance from the store as the hospital. Once they arrived at the station, the paramedics

gave Wysong emergency treatment and then took him to the hospital. The medical staff reported that

Wysong’s actions were caused by an uncontrollable medical condition, and opined that he should

not be charged or arrested for that reason. Wysong was later charged with one misdemeanor count

of disorderly conduct, but the charge was soon dropped.

Wysong tells a different story in his complaint and briefs. In them, he alleges that when he

was on the ground, he was not resisting the officers in any way. He said that he was “not conscious”

when he was on the ground and the police were using force against him. He claims that the police

account of his resistance is “completely untrue,” but he does not explain how he knows the police

are lying when he himself cannot speak to what happened. Wysong presented no other witnesses

or physical evidence to confirm his story. The hospital report stated that he denied experiencing

body aches and showed no injuries other than a bruised left knee. The district court saw a conflict

between Wysong’s claim and the police testimony, so it ruled that factual questions precluded

granting summary judgment for the defendants.

1

Wysong was wearing a medical alert medallion around his neck that was three-quarters of

an inch in diameter and said “insulin” on the back, but the officers had not noticed it. The record

does not say whether this medallion was worn outside or inside of Wysong’s clothing, and its

location does not affect our decision, but the fact that the medallion was only noticed after Wysong

partially lost his shirt in the scuffle, suggests to us that it was underneath his clothing and therefore

out of sight.

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After the first interlocutory appeal, the defendants took Wysong’s deposition. In the

deposition, Wysong clarified (or shifted) his position away from an affirmative claim of what

happened to an admission that he did not know what happened. Wysong did not assert that he was

“knocked out” when he was on the ground, but that he had no conscious memory of what happened

and could not affirm or deny any of his actions while on the ground.

Q. Now, when you use the word “unconscious,” what you mean is that you have

no conscious memory of what occurred.

A. Yes.

Q. But you are not able to say that you were unconscious in the sense that you

were completely motionless, not moving; is that correct?

A. Yes.

...

Q. Now, would I be correct in saying that you have no memory as to whether you

became combative; is that correct?

A. Yes.

Q. You are not saying you didn’t. You just have no memory.

A. Yes.

Q. Now am I correct in saying that you have no memory of scuffling with the

police; is that correct?

A. Yes.

Q. You are not saying that didn’t happen. You are saying that you have no

memory of it; is that correct.

A. Yes.

This deposition is also where Wysong admitted to the prior incidents where a drop in blood sugar

made him act belligerently but then forget the entire episode.

B

Wysong filed his complaint on March 28, 2004. The defendants moved for summary

judgment on August 13, 2004. On January 18, 2005, the district court partially granted the motion,

dismissing all of Wysong’s claims except his Fourth Amendment claim for excessive force. The

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court reasoned that “the essential facts—Plaintiff’s behavior while he was on the ground—are in

dispute” because “[p]laintiff claims he was in an unconscious state, not resisting,” when the officers

used force. The court construed Wysong’s allegation that he was “unconscious” while on the ground

to mean that Wysong claimed that he was “lacking consciousness,” or “knocked out.” This is a

legitimate definition. American Heritage Dictionary of the English Language 1873 (4th ed. 2000)

(defining “unconscious” as “lacking consciousness”). The district court denied qualified immunity

based on this perceived fact dispute. The defendants filed an interlocutory appeal on the issue of

qualified immunity. A panel of this court issued a three-paragraph order, affirming and adopting the

reasoning of the district court. Wysong v. Ramage, 166 F. App’x 835 (6th Cir. 2006) (per curiam).

On remand, the defendants took additional discovery, including Wysong’s above-cited

deposition in which he acknowledged his lack of memory, and moved again for summary judgment

based on qualified immunity. The deposition showed that by “unconscious,” Wysong meant that his

physical actions were taken “without conscious control,” or were “involuntary.” This is also a

reasonable definition. American Heritage Dictionary of the English Language 1873 (4th ed. 2000)

(giving another definition of “unconscious” as “without conscious control [or] involuntary”).

Despite this clarification and Wysong’s admission that he could not remember anything he

did, the district court perfunctorily dismissed the defendants’ renewed motion for summary judgment

as a “third attempt to litigate issues already decided.” The order relied exclusively on language from

its first order stating that Wysong could testify that he was “unconscious” when the officers used

force. It did not even acknowledge the difference between Wysong’s deposition and the words of

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his complaint, and it did not engage the defense contention that Wysong could not say that he was

unconscious in the “knocked-out” sense.

The defendants appealed again. Wysong filed a motion to dismiss the appeal for lack of

jurisdiction, but a motions panel denied the motion, reasoning that “this appeal contains additional

evidence” and raises a new legal question of whether, in light of this evidence, the defendants are

entitled to judgment as a matter of law. Wysong v. City of Heath, No. 06-4433, (6th Cir. March 14,

2007) (unpublished order). We now answer that question.

II

We review de novo a district court’s denial of a motion for summary judgment premised on

qualified immunity. Mattox v. City of Forest Park, 183 F.3d 515, 519 (6th Cir. 1999). On an

interlocutory appeal such as this one, we consider only abstract issues of law, so we must accept “the

facts alleged by the plaintiff and discuss only the legal issues in the case.” Shehee v. Luttrell, 199

F.3d 295, 299 (6th Cir. 1999). To withstand summary judgment, the plaintiff must show a genuine

issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir. 1990). A mere

scintilla of evidence is insufficient; “there must be evidence on which the jury could reasonably find

for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The evidence

must be admissible to create a genuine issue for trial, id. at 247, because if the evidence is not

admissible, there is nothing on which a jury could base its decision. Summary judgment is

appropriate “against a party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In qualified immunity cases, the plaintiff bears

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this burden; he must show that the defendant is not entitled to qualified immunity. Wegener v. City

of Covington, 933 F.2d 390, 392 (6th Cir. 1991).

III

Before considering qualified immunity, we pause to explain our jurisdiction to hear this case.

First, the “law of the case” doctrine does not control our decision. Under the law of the case, “when

a court decides upon a rule of law, that decision should continue to govern the same issues in

subsequent stages in the same case.” Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir.

2006). Likewise, “findings made at one point in the litigation become the law of the case for

subsequent stages of that same litigation.” United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.

1994).

Although the first panel to hear this case affirmed the district court’s denial of qualified

immunity, the motions panel, in denying the motion to dismiss this second interlocutory appeal, held

that the law of the case does not bind our panel to the previous result. We agree. The law of the case

doctrine does not apply in three “exceptional circumstances.” Westside Mothers, 454 F.3d at 538.

One such “exceptional circumstance” is when “substantially new evidence has been introduced.”

Ibid. This exception applies here, because the facts in this appeal differ from the facts in the first

appeal. In the first appeal, the ambiguous use of “unconscious” led the court to decide the issue as

if Wysong claimed to have been “knocked out” or motionless. In this appeal, the ambiguity has been

eliminated through the new evidence in Wysong’s deposition. Despite the assertions in the district

court’s most recent decision, we now know that Wysong makes no claim of being “knocked out.”

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Instead, he admits that he has no memory of the relevant events and contends that whatever physical

movements he made were not voluntary acts.2

While successive interlocutory appeals on qualified immunity may be unusual, they are not

unheard of, and they are not subject to any special disfavor. See Behrens v. Pelletier, 516 U.S. 299,

306 n.2 (1996) (permitting second interlocutory appeal and observing that “Mitchell itself dealt with

the second of two interlocutory appeals on immunity claims). The Supreme Court observed that in

Mitchell, “neither the Court of Appeals nor this Court assigned any significance to the successive

aspect of the second appeal.” Ibid. We do likewise and assign no significance to the “successive

aspect” of the appeal now before us.

Second, the familiar rule in Johnson v. Jones, 515 U.S. 304 (1995), does not apply. Johnson

held that a court of appeals, when hearing a qualified immunity case on interlocutory review, does

not have jurisdiction to disagree with a district court’s decision that the record contains a factual

dispute that must be resolved at trial. Id. at 320. A more recent Supreme Court case explains why,

despite Johnson, we may decide this case before us. In Scott v. Harris, 127 S. Ct. 1769 (2007), the

district court found a genuine issue of material fact as to the plaintiff’s conduct, and the Eleventh

Circuit decided that it therefore had no jurisdiction to overturn the district court’s decision. Scott,

127 S. Ct. at 1773.

2

Indeed, in his oral argument, Wysong’s counsel abandoned the claim that Wysong was

knocked out, focused his arguments on Wysong’s actions being involuntary, and stated that “all

Wysong meant by his original statement was that he had no conscious memory. ”

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But the Supreme Court reversed 8-1, and in the process rejected both the plaintiff’s version

of the facts and the district court’s determination that a genuine factual dispute existed. Ibid. The

case dealt with a high-speed police chase, and the incident had been caught on video. The Court

looked to the video, and said that the plaintiff’s version of the events was “so utterly discredited by

the record that no reasonable jury could have believed him” and that his story was “blatantly

contradicted by the record.” Scott, 127 S. Ct. at 1776. Furthermore, we agree with the Third Circuit

that the Court disagreed with the lower courts “as to what Harris’s actions actually were, and not

merely whether they could be described as ‘dangerous to others.’” Blaylock v. City of Philadelphia,

504 F.3d 405, 414 n.7 (3d Cir. 2007). Neither the majority nor Justice Stevens’s lone dissent in Scott

mentioned Johnson v. Jones, or addressed the question of jurisdiction, but logic dictates that Scott

must have modified Johnson’s language about jurisdiction in order to reach the result it did.

In Blaylock, the Third Circuit reconciled Scott and Johnson by saying that Scott represents

“the outer limit of the principle of Johnson v. Jones—where the trial court’s determination that a fact

is subject to reasonable dispute is blatantly and demonstrably false, a court of appeals may say so,

even on interlocutory review.” Blaylock, 504 F.3d at 414. We agree with, and follow, the Third

Circuit’s view as a principled way to read Johnson and Scott together and to correct the rare

“blatan[t] and demonstrabl[e]” error without allowing Scott to swallow Johnson. Here, Wysong

himself admitted in a deposition that no factual dispute exists, so we are comfortable in saying that

any determination to the contrary is “blatantly and demonstrably contradicted by the record,” Scott,

127 S. Ct. at 1776, and that we have jurisdiction “to say so, even on interlocutory review.” Blaylock,

504 F.3d at 414.

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IV

Courts reviewing § 1983 claims alleging excessive force must first consider whether the

officer violated the constitution by using excessive force, then decide whether the officer deserves

qualified immunity because he did not violate “clearly established” federal law. The Supreme Court

has held that these inquiries are distinct, Saucier v. Katz, 533 U.S. 194, 204 (2001), so we separate

the inquiries despite the possibility for confusion this requirement creates.3

Both points turn on a question that is simultaneously simple and complex. If Wysong was

resisting arrest, even if his resistance arose from involuntary muscle spasms brought on by diabetes,

the officers did not use excessive force and certainly would be entitled to qualified immunity if they

did. By contrast, if Wysong was lying motionless on the ground—if he was “unconscious” in the

sense of being knocked out—the officers used excessive force and are not entitled to qualified

immunity. This is an interlocutory appeal, so we must view the facts in the light most favorable to

the plaintiff. In most cases, the result would be the result reached by the district court, a decision that

factual disputes warrant denying summary judgment. The difference in this case is whether Wysong

can present any “facts” to view favorably when he offers no external evidence, identifies no

supporting witnesses, and cannot remember the underlying events.

A

3

While they may be conceptually distinct, they also blur easily. Some authorities favor

permitting courts to discuss either or both issues as the case warrants. See, e.g., Scott v. Harris, 127

S. Ct. 1769, 1780 (2007) (Breyer, J., concurring) (agreeing with the “commentators, judges, and in

this case, 28 States in an amicus brief” who believe Saucier’s inquiry should be simplified).

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The Fourth Amendment’s “objective reasonableness” test applies to all claims for excessive

force. Graham v. Connor, 490 U.S. 386, 394 (1989). Reasonableness “must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and

“‘not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,

violates the Fourth Amendment.’” Ibid. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.

1973). The test is fact specific, not mechanical, and the three most important factors for each case

are: (1) the severity of the crime at issue; (2) the threat of immediate danger to the officers or

bystanders; and (3) the suspect’s attempts to resist arrest or flee. Id. at 396. The standard “contains

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

necessary in light of the circumstances of the particular case.” Burchett v. Kiefer, 301 F.3d 937, 944

(6th Cir. 2002).

Our cases show that the police may use force on suspects who resist arrest in the manner in

which Wysong resisted. When a suspect merely “twisted and turned some,” police had the right to

use force when arresting him. Burchett, 301 F.3d at 940, 943. Likewise, our court granted qualified

immunity to police officers who tackled a suspect who had led them on a low-speed chase to the

police station. Goodrich v. Everett, 193 F. App’x 551, 556 (6th Cir. 2006). Goodrich held that even

if the officers were “kneeing and kicking” the plaintiff while handcuffing him, the force was not

unreasonable in the context of an arrest where a reasonable officer could have concluded that the

plaintiff “was capable of violence and intended to flee.” Ibid. at 557. Our court has even found that

a punch resulting in a broken jaw, a much more serious level of force than that used against Wysong,

is reasonable when the suspect is moving erratically and apparently attempting to escape:

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While Mr. Schliewe was not charged with a serious crime, it was difficult for the

officers to judge his intentions because Mr. Schliewe had behaved erratically during

the evening and was apparently intoxicated. Mr. Schliewe was attempting an escape

from the holding area of the police station and resisted the officers’ attempts to

subdue him, thus justifying the use of at least some force. Mr. Schliewe focuses on

the blow struck by Officer Toro as unreasonable. While punching someone may not

be the best way to prevent his escape, it cannot be said that the blow was objectively

unreasonable.

Schliewe v. Toro, 138 F. App’x 715, 721–22 (6th Cir. 2005).

All of these cases involve individuals who, like Wysong, were suspected of relatively minor

crimes and who put up a similar, or lower, level of resistance, and who were subjected to a similar,

or higher, level of force.4 Therefore, if the officers’ story is true, no excessive force was used.

The law is equally clear that force can easily be excessive if the suspect is compliant.

Champion v. Outlook Nashville, Inc., 380 F.3d 893, 902 (6th Cir. 2004). There is no government

interest in striking someone who is neither resisting nor trying to flee. Smoak v. Hall, 460 F.3d 768,

784 (6th Cir. 2006) (unreasonable to tackle a cuffed and compliant suspect); McDowell v. Rogers,

863 F.2d 1302, 1307 (6th Cir. 1998) (holding blow to cuffed, unresisting suspect unreasonable).

Therefore, if Wysong was not resisting, the officers’ use of force was excessive.

B

Police officers are entitled to qualified immunity unless their conduct violates “clearly

established constitutional or statutory rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The doctrine protects “all but the plainly

4

Wysong’s resistance may not have been the product of a conscious decision, but the officers

did not know this. They were confronted with a man who was on the ground kicking and screaming

and were forced to make an “on the spot judgment.” Burchett, 301 F.3d at 944.

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incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

It requires a two-step inquiry. First, the court must determine whether, based upon the applicable

law, the facts viewed in the light most favorable to the plaintiff show that a constitutional violation

occurred. If the answer is yes, then the court asks whether the violation involves “clearly established

constitutional rights of which a reasonable person would have known.” Dickerson v. McClellan, 101

F.3d 1151, 1158 (6th Cir. 1996). Qualified immunity is immunity from suit, not just immunity from

damages. Crockett v. Cumberland College, 316 F.3d 571, 578 (6th Cir. 2003).

The Supreme Court emphasized that it is not enough for a right to be “clearly established”

as a general proposition; it must be “clearly established” in the “more particularized, relevant sense”

of the “specific context of the case.” Saucier, 533 U.S. at 201. A plaintiff need not offer precedent

with “materially similar facts,” but the precedent must give “fair warning” that the action in question

is unconstitutional. Hope v. Pelzer, 536 U.S. 730, 740–41 (2002).

Turning to Wysong’s case, we hold that if the officers struck him when he was not resisting,

they will not receive qualified immunity. The same cases holding that police may not use force on

a subdued, non-resisting subject hold that the right to be free from physical force when one is not

resisting the police is a clearly established right. Smoak, 460 F.3d at 784 (law clearly established that

tackling subdued suspect would have been unreasonable); Champion, 380 F.3d at 902 (courts have

“consistently held that various types of force applied after the subduing of a suspect are unreasonable

and a violation of a clearly established right”). Therefore, the qualified immunity question, like the

excessive force question, turns on Wysong’s conduct while on the ground.

C

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The question now becomes whether Wysong can raise a genuine issue of material fact

regarding his conduct, given his deposition. The Eighth Circuit faced a similar case and granted

summary judgment for the defendant. Wertish v. Krueger, 433 F.3d 1062 (8th Cir. 2006). In

Wertish, officers followed a motorist, Wertish, who was driving erratically. Wertish, like Wysong,

was suffering a hypoglycemic attack and admitted to being “out of it.” Id. at 1065. The police said

that when they finally pulled Wertish over, he did not respond to their commands and put his hands

behind his back. Ibid. A scuffle followed, in which the officers “struck” Wertish several times,

cuffed him, and “pushed him up against the truck.” Ibid. This parallels the amount of force the

police used on Wysong. Like Wysong, Wertish remembered nothing from the time he heard the

police siren to when “they had me slammed up against the truck.” Ibid. Like Wysong, Wertish

denied resisting, but admitted that he could not remember what happened. Ibid.

The court pointed to Wertish’s lack of memory and said that [i]f [officer] Krueger’s

unrefuted version of the events establishes that his use of force was reasonable,” summary judgment

was appropriate. Ibid. (emphasis added). The court explained that the use of force was reasonable

given Wertish’s resistance, and argued that Wertish’s minor scrapes and bruises were further

evidence that no excessive force was used. Id. at 1067.5 The key point is that the court disregarded

the allegations in Wertish’s pleadings once Wertish admitted that he could not remember what

happened. Another circuit applied the same reasoning in a different context. See Curley v. Villiage

5

Wertish suffered “bruised ribs, a sore shoulder, and multiple abrasions to his face and

head.” Wertish, 433 F.3d at 1066. Notably, Wysong’s injuries were even less serious because his

hospital report listed only his bruised knee.

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of Suffern, 268 F.3d 65, 72 (2d Cir. 2001) (granting summary judgment based on qualified immunity

when the police testified to their own conduct and the plaintiff admitted that he “could not recall”

the critical events). We follow the same path.

District court cases from our circuit confirm our judgment. When a plaintiff admitted that

he was too drunk to remember what happened when the police shot at his car, the court granted

summary judgment to the officers based on qualified immunity. Perrien v. Towels, No 1-05CV928,

2006 WL 1515663 (N.D. Ohio, May 30, 2006). Despite his lack of memory, the plaintiff asserted

that he could not have driven his car towards the officers right before they fired, and insisted that the

wet conditions or a mechanical failure must have been responsible for the car’s movement. Id. at

*5. The court rejected this speculation, and ruled that because the plaintiff could not dispute the

testimony of the officers, it would accept the officers’ version of the events and grant the officers

summary judgment. Id. at *7. Another court found for an officer when a suspect claimed that he

could not remember any of the events surrounding his flight from, and fight with, the police, but

nevertheless insisted that the police used excessive force. Woods v. Jefferson County Fiscal Court,

No 3-01CV-210-H, 2003 WL 145213 (W.D. Ky. Jan. 8, 2003). The court accepted the officer’s

story because the suspect “has no memory of the events, and therefore his testimony cannot be a

factor.” Id. at *5 (emphasis added).

Like the plaintiffs in Woods, Perrien, and Wertish, Wysong cannot remember the relevant

events. Contrary to the district court’s ruling, Wysong cannot testify that he was “unconscious”

when the officers were arresting him. Wysong admitted in his deposition that he does not deny that

he fought with the officers; he only claims that he does not remember what happened. He even

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admitted that on previous occasions, his blood sugar dropped, he acted aggressively, and later did

not remember what he had done. Like the plaintiffs in the previous cases, Wysong cannot establish

a genuine issue of material fact. While we must view the facts in the light most favorable to

Wysong, we are not obligated to treat a naked assertion in a litigation document as establishing a

“fact” when he admits to having neither personal knowledge nor other evidence to support his claim.

See U.S. Structures v. J.P. Structures, 130 F.3d 1185, 1189 (6th Cir. 1997) (summary judgment

appropriate against party who fails to offer admissible evidence in opposition to a motion for

summary judgment).

D

Wysong cites several cases, but these cases only highlight the contrast between situations

where qualified immunity was properly denied and his own situation. In every one, one or more of

the following facts not present in his own case exist: (1) the plaintiff had personal knowledge of the

underlying events; (2) the officers knew that the plaintiff had a medical condition before resorting

to force; or (3) the plaintiff supported up his claims with other evidence.

In Bultema v. Benzie County, 146 F. App’x 28 (6th Cir. 2005), Bultema claimed that an

arresting officer used excessive force by striking him across the head with a nightstick when Bueltma

was already cuffed. Id. at 36. The court rejected the defense motion for summary judgment even

though Bueltma could not remember, and no one else actually saw, the blow. However, the court

relied on a witness who heard the officer yelling at Bueltma, “heard a whack and a thud,” and turned

around and saw the cuffed Bueltma sprawled on the ground. Ibid. The court reasoned that one could

“reasonably infer” from this evidence that the officer struck Bueltma. The case does not help

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No. 06-4433

Wysong v. City of Heath

Wysong because Wysong can point to no eyewitness testimony from which reasonable inferences

in his favor can be drawn. The only eyewitness agrees with the police.

In Rivas v. City of Passaic, 365 F.3d 181 (3d Cir. 2004), the court denied summary judgment,

holding that a jury could believe the testimony of Rivas’s wife that Rivas was simply flailing his

arms because of a seizure and not resisting in the way the officers claimed. Id. at 199. Rivas could

not testify because he later died from his injuries, but Rivas’s wife testified from personal knowledge

as to what happened. Some physical evidence also suggested that the officers shoved a flashlight

into Rivas’s mouth. Ibid. Once again, Wysong offers no such evidence.

Wysong also relies on Lolli v. County of Orange, 351 F.3d 410, (9th Cir. 2003), for the

proposition that violence against a person suffering a diabetic seizure is excessive. But Lolli does

not help him, because in Lolli the plaintiff told the officers that he had diabetes long before the

violence occurred, and he remembered everything that happened. Id. at 415–17. Lolli also suffered

multiple open wounds and fractured ribs. Id. at 417. Wysong did not. Wysong also points to

Frazell v. Flanigan, 102 F.3d 887 (7th Cir. 1996), abrogation on other grounds recognized by

McNair v. Coffey, 279 F.3d 463 (7th Cir. 2002), but the same analysis applies. In Frazell, the

plaintiff, who claimed that the officers used excessive force when they mistook his epileptic seizure

for belligerence, testified from personal knowledge to at least some of the events in question, said

that he told the officers of his condition before any violence occurred, offered two witnesses who

confirmed his testimony, and suffered severe injuries requiring hospitalization. Id. at 880–82.

Before concluding, we highlight the deficiencies in Wysong’s case by explaining how a

single difference in the record would lead to a different result. If Wysong offered a witness who

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No. 06-4433

Wysong v. City of Heath

testified that he was lying motionless, i.e., unconscious in the “knocked out” sense, while the police

struck Wysong, he would have created a fact question for the jury. He has not. Wysong could raise

a fact question through his own testimony, but he cannot because admits to not remembering the

relevant events. He cannot even raise the inference that his lack of memory is the fault of the

officers; his memory loss predates the struggle with the officers.

This is a case where the officers and third-party witness tell a story that establishes the

officers’ right to qualified immunity. In response, Wysong admits that he cannot remember the

events, admits that he has no external evidence to back up the story he tells, and even agrees with

the hospital report that said he suffered no physical injuries from any of the officers’ blows. Wysong

cannot beat something with nothing.

The undisputed facts in this case show that no constitutional violation occurred. Therefore,

we REVERSE the judgment of the district court.

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