Jones v. Cincinnati

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0140p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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BESSIE JONES, Administratrix of the Estate of

Plaintiffs-Appellees, -

Nathaniel Jeffrey Jones, Deceased, et al.,

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No. 06-4528

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v. >

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Defendants-Appellants. -

CITY OF CINCINNATI, et al.,

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Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 04-00616—Susan J. Dlott, District Judge.

Argued: February 5, 2008

Decided and Filed: April 4, 2008

Before: MARTIN and SUTTON, Circuit Judges; OBERDORFER, District Judge.*

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COUNSEL

ARGUED: Richard Ganulin, CITY SOLICITOR’S OFFICE FOR THE CITY OF CINCINNATI,

Cincinnati, Ohio, for Appellants. Eric C. Deters, ERIC C. DETERS & ASSOCIATES, P.S.C.,

Independence, Kentucky, for Appellees. ON BRIEF: Richard Ganulin, CITY SOLICITOR’S

OFFICE FOR THE CITY OF CINCINNATI, Cincinnati, Ohio, for Appellants. Eric C. Deters,

ERIC C. DETERS & ASSOCIATES, P.S.C., Independence, Kentucky, for Appellees.

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OPINION

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OBERDORFER, District Judge. Defendants appeal the district court’s partial denial of their

motion to dismiss Fourth and Fourteenth Amendment claims based on 42 U.S.C. § 1983 brought

against them by representatives and relatives of Nathaniel Jones, a 350-pound 41-year old African

American who died after Cincinnati police officers subdued and placed him under arrest. Because

the defendants are not entitled to qualified immunity on the basis of the facts alleged in the

complaint, we affirm.

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The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting

by designation.

1

No. 06-4528 Jones, et al. v. City of Cincinnati, et al. Page 2

I.

Because this is an appeal from the denial of a Rule 12(b)(6) motion to dismiss, the following

account accepts as true the facts alleged in the complaint – in this case, the second amended

complaint. On Sunday, November 30, 2003, during the early morning, Jones was visiting friends

at a White Castle restaurant in Cincinnati. He became ill and fell unconscious in the parking lot.

A White Castle employee called 911 to summon medical assistance. Several firefighters, who are

defendants in this suit but not a subject of this appeal, arrived and refused to treat Jones. Jones woke

up and began walking and dancing; he caused no damage to any persons or property. The

firefighters summoned the police and described Jones as a nuisance.

Officers James Pike and Baron Osterman arrived in response to the firefighters’ summons.

Shortly thereafter, the firefighters left the scene. At about, or shortly after, the time of their

departure, Pike called dispatch to request a Medical Help Response Team and a supervisor with a

taser. Pike and Osterman then approached Jones and tried to subdue him, even though Jones

presented no danger to any property or persons. Pike and Osterman began to savagely beat Jones

with their batons. Officers Guy Abrams, Joehonny Reese, and Thomas Slade arrived and began

using their batons on Jones. The officers struck Jones at least 33 times, giving him no chance to

comply with orders to put his hands behind his back. They continued to strike Jones while he was

on his hands and knees.

Officers Pike and Slade sprayed chemical irritant in Jones’s face while he was prone in

handcuffs and while officers Pike, Osterman, Abrams, Reese, Slade, and Jay Johnstone used their

combined weight to hold him down. Their weight restricted the movement of Jones’s diaphragm

and made it difficult for him to breathe. Jones struggled to twist his body under the officers in an

attempt to breathe. In response, the officers pressed down on him even harder. Once they had

subdued Jones, they left him face down on the ground handcuffed behind his back for a prolonged

period of time. During this time, Jones stopped breathing; all the officers knew it. Reese saw Jones

changing color. Johnstone, Reese, and Abrams knew that a suspect lying face down risked

positional asphyxia (difficulty breathing due to one’s posture or position). None of the officers

provided mouth-to-mouth resuscitation or other respiratory aid. Instead, they stood there and

discussed the absence of fire personnel.

Police Sergeant James Waites arrived while Jones was still lying face down. The sergeant

was aware of the risks of positional asphyxia but did not order Jones rolled over or undertake to do

so himself. Two other police sergeants, Jeffrey Battison and Leroy Brazile, arrived on the scene.

All three sergeants noticed Jones was not breathing. None of the sergeants provided any medical

aid and each knew that no other officers were providing aid. Waites did not order officers to

perform mouth-to-mouth because he saw that Jones was frothing at the mouth and they had no

protective mouth barrier. Instead, Battison summoned emergency medical services. The officers

all knew that it was impossible to render proper medical aid while Jones remained in handcuffs.

Their failure to remove the handcuffs delayed the administration of aid and hastened Jones’s death.

Finally, plaintiffs allege that the City, as well as Chief of Police Thomas Streicher and now

former City Manager Valerie Lemmie as policymakers for the City, are responsible for the officers’

actions because the policymakers allowed officers to use excessive force against citizens without

facing discipline, failed to provide adequate training to the officers or promulgate adequate policies

addressing the use of force or the dangers of positional asphyxia, failed to discipline officers whose

conduct put individuals at risk of positional asphyxia, and failed to provide officers with equipment

– such as mouth barriers for mouth-to-mouth resuscitation – to aid those suffering from positional

asphyxia.

No. 06-4528 Jones, et al. v. City of Cincinnati, et al. Page 3

Jones’ grandmother and administratrix of his estate and Jones’ two minor sons filed a

complaint in the United States District Court for the Southern District of Ohio against sixteen

defendants: the City of Cincinnati, Cincinnati Chief of Police Streicher, Cincinnati Fire Chief

Robert Wright, now former City Manager Lemmie, the six police officers present during the struggle

with Jones (Abrams, Pike, Reese, Johnstone, Osterman, and Slade), three police sergeants who

arrived at the scene after the struggle (Brazile, Waites, and Battison), and three Cincinnati

firefighters (Gregory Adams, Tyrone Harrison, and Brian Otten). The complaint alleged that the

defendants violated Jones’s Fourth Amendment right to be free from excessive force and his

Fourteenth Amendment right to adequate medical care while detained by the state. The complaint

also contained claims for relief under Ohio law for wrongful death, gross negligence, and loss of

consortium.

The defendants moved to dismiss the entire complaint on the grounds that the complaint fails

to state a claim, the individual defendants are entitled to qualified immunity on the constitutional

claims, and all defendants are entitled to statutory immunity under Ohio law on the state law claims.

Defendants appeal the district court’s (1) denial of the motion to dismiss the claims against the City,

Chief of Police Streicher, City Manager Lemmie, and Officers Abrams, Pike, Reese, Johnstone,

Osterman, and Slade for use of excessive force and for failure to provide adequate medical care; and

(2) denial of the motion to dismiss the claim against Police Sergeants Waites, Battison, and Brazile

for failure to provide adequate medical care.

II.

We review de novo the district court’s ruling on a motion to dismiss a claim. Association

of Cleveland Firefighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007). A claim survives

such a motion if its “[f]actual allegations [are] enough to raise a right to relief above the speculative

level on the assumption that all of the complaint’s allegations are true.” Bell Atl. Corp. v. Twombly,

--- U.S. ----, 127 S.Ct. 1955, 1959 (2007). “[W]hen a complaint adequately states a claim, it may

not be dismissed based on a district court’s assessment that the plaintiff will fail to find evidentiary

support for his allegations or prove his claim to the satisfaction of the factfinder.” Id. at 1970.

“[W]e construe the complaint in the light most favorable to the plaintiff, accept its allegations as

true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d

471, 476 (6th Cir. 2007). “[W]e need not accept as true legal conclusions or unwarranted factual

inferences.” Id.

Police enjoy qualified immunity unless (1) the facts alleged show that the police violated a

constitutional right; and (2) the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201

(2001). We analyze the plaintiffs’ claims for excessive force separately from the claim that

defendants failed to provide adequate medical care.

Excessive Force. “[C]laims that law enforcement officers have used excessive force – deadly

or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be

analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490

U.S. 386, 395 (1989). The complaint alleges that the six officers who subdued Jones (1) savagely

beat him with batons, striking him at least 33 times without giving him a chance to comply with their

orders; (2) sprayed chemical irritant in his face after they had placed him in handcuffs; and (3) used

their combined weight to hold him prone on the ground after he had stopped struggling. Such use

of force is not objectively reasonable, and hence a violation of Jones’s Fourth Amendment rights.

See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901-02 (6th Cir. 2004) (noting that baton

strikes “applied after the subduing of a suspect are unreasonable” and holding that lying on top of

a suspect such as Jones and spraying chemical irritant in his face when he “had stopped resisting

arrest and posed no flight risk” are unreasonable). The right of an unresisting suspect to be free from

baton strikes, “significant pressure on [his] back,” and a dose of chemical irritants was clearly

No. 06-4528 Jones, et al. v. City of Cincinnati, et al. Page 4

established over three years before Jones died. See id at 902-03. Therefore, the officers who

subdued Jones are not entitled to qualified immunity on the excessive force claim.

Failure to Provide Medical Care to Detainee. “[D]eliberate indifference” to the serious

medical needs of pretrial detainees normally constitutes a substantive due process violation. Estate

of Owensby v. City of Cincinnati, 414 F.3d 596, 602 (6th Cir. 2005). “[W]hen unforeseen

circumstances demand an officer's instant judgment,” a heightened standard of malice and intent to

harm applies. Id. at 603. The defendants argue that this case should be analyzed under the

heightened malice standard because there was little time between taking Jones into custody and the

time he stopped breathing. We disagree. The complaint alleges that the officers left Jones on the

ground for a prolonged time and that they “stood there and discussed the absence of fire personnel”

after they noticed Jones was not breathing. These facts are similar to those in Owensby, in which

this Court ruled that the deliberate indifference standard was appropriate because the six minutes

between taking the suspect into custody and the time medical care was provided gave the officers

“time to fully consider the potential consequences of their conduct.” Id. (internal quotation marks

omitted).

“Deliberate indifference requires that the defendants knew of and disregarded a substantial

risk of serious harm to [the pretrial detainee’s] health and safety.” Id. (brackets in original, internal

quotation marks omitted). The complaint alleges that each of the officers present – the six who

subdued Jones and the three sergeants who arrived afterwards – knew that the handcuffed Jones was

not breathing. Therefore each knew of a substantial risk of serious harm to Jones’s safety while he

was in their custody and disregarded that risk by failing to provide aid. The right of a suspect in

custody to receive adequate medical care, even if the suspect had been fleeing and resisting before

the officers placed him in custody, was clearly established almost three years before Jones’s death.

Id. Therefore, the officers who subdued Jones and the sergeants who arrived soon after are not

entitled to qualified immunity on the failure to provide medical care claim.

Municipality and City Officials. The City, Chief of Police Streicher, and City Manager

Lemmie are likewise not entitled to qualified immunity on the constitutional claims. A municipality

is liable for a constitutional violation when execution of the municipality’s policy or custom inflicts

the alleged injury. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). The official policy or

custom “must be the moving force of the constitutional violation” to establish the liability of a

government body. Polk County v. Dodson, 454 U.S. 312, 326 (1981). A municipality cannot be

held liable under § 1983 absent an underlying constitutional violation by its officers. City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986). However, where a failure to train is the result of a

municipality’s policy or custom and results in a constitutional violation by its officers, a city can be

held liable under § 1983. City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989).

The only argument the defendants make on appeal concerning liability of the City and its

policymakers is that there was no underlying constitutional violation by its officers. This argument

fails. We have already rejected defendants’ contention that the officers should receive qualified

immunity. The complaint alleges that the City’s inadequate training regarding both use of force and

positional asphyxia associated with such force, tolerance of officers’ use of excessive force, and

policies regarding use of force and medical care of suspects all, if proven, would violate the

Constitution.

III.

Throughout their briefs, defendants do not directly challenge the proposition that the facts

alleged in the complaint state valid constitutional claims. Rather, they state that facts not alleged

in the complaint support their claim of qualified immunity. For example, defendants state that Jones

attacked Officers Pike and Osterman, that officers did not “savagely beat” Jones but rather prodded

No. 06-4528 Jones, et al. v. City of Cincinnati, et al. Page 5

him with batons to create sufficient pain to achieve compliance, and that Jones was only on his

stomach for a few seconds before officers rolled him over. Brief of Defendants-Appellants at 5-8.

As support for their version of the facts, defendants cite a series of exhibits attached to the

complaint. These exhibits include transcripts of interviews by a Cincinnati Citizen Complaint

Authority investigator with the officers who subdued Jones (Exs. 1-5, 8) and excerpts from the

Citizen Complaint Authority report on the incident (Ex. 6). Unsurprisingly, statements by the

officers contain facts which, if true, cast doubt on the allegations in the complaint.

Defendants argue that because a “copy of a written instrument that is an exhibit to a pleading

is a part of the pleading for all purposes,” Fed. R. Civ. P. 10(c), all the facts stated in the exhibits

to the complaint must be assumed to be true for purposes of the motion to dismiss. Even if we

assume that a transcript of an interview constitutes a “written instrument,” treating a transcript as

part of a pleading does not mean that we assume everything the officers said in those interviews is

true. Where a plaintiff attaches to the complaint a document containing unilateral statements made

by a defendant, where a conflict exists between those statements and the plaintiff’s allegations in

the complaint, and where the attached document does not itself form the basis for the allegations,

Rule 10(c) “does not require a plaintiff to adopt every word within the exhibits as true for purposes

of pleading simply because the documents were attached to the complaint to support an alleged

fact.” See N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 454–56 (7th Cir.

1998). Rather, we treat the exhibit as an allegation that the officers made the statements in the

transcripts and we treat that allegation as true. Thus, we accept as true that on June 24, 2004 Officer

Pike said that no officer put weight on Jones’s back during the handcuffing process. Joint Appendix

177. We do not accept as true, however, that Officer Pike’s statement is accurate or true; this is a

question of credibility and weight of the evidence that is not before a court considering a motion to

dismiss.

IV.

The court did not abuse its discretion when it disregarded evidence that the defendants filed

in support of their motion to dismiss, including public documents and a videotape of the incident.

On a motion to dismiss, a court may accept “matters outside the pleadings,” but in doing so it

generally must treat the motion “as one for summary judgment under Rule 56.” Fed. R. Civ. P.

12(d). A court may consider public records without converting a Rule 12(b)(6) motion into a Rule

56 motion. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999). Where the evidence

“captures only part of the incident and would provide a distorted view of the events at issue,” as the

district court concluded with respect to the videotape, we do not require a court to consider that

evidence on a 12(b)(6) motion. See Passa v. City of Columbus, 123 F. App’x 694, 697 (6th Cir.

Feb. 16, 2005) (“[I]n order to preserve a party’s right to a fair hearing, a court, on a motion to

dismiss, must only take judicial notice of facts which are not subject to reasonable dispute.”).

V.

For these reasons, we affirm the decision of the district court and remand the case for

discovery, summary judgment, and, if necessary, a trial to resolve the disputed factual issues.