Steven Ondo v. City of Cleveland

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0175p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

STEVEN ONDO; JONATHAN SIMCOX, ┐

Plaintiffs-Appellants, │

│

│ No. 14-3527

v. │

>

│

CITY OF CLEVELAND, et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:13-cv-00762—Patricia A. Gaughan, District Judge.

Argued: January 22, 2015

Decided and Filed: August 3, 2015

Before: BATCHELDER, SUTTON, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Sara Gedeon, Chesterland, Ohio, for Appellants. Joseph F. Scott, CITY OF

CLEVELAND, Cleveland, Ohio, for Appellees. ON BRIEF: David B. Malik, Samuel S.

Riotte, Chesterland, Ohio, for Appellants. Joseph F. Scott, CITY OF CLEVELAND, Cleveland,

Ohio, for Appellees.

BATCHELDER, J., delivered the opinion of the court in which COOK, J., joined, and

SUTTON, J., joined in part. SUTTON, J. (pg. 19), delivered a separate opinion concurring in all

but Parts III.B and III.C and in the judgment.

1

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 2

_________________

OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. Plaintiffs Steven Ondo and Jonathan Simcox

were arrested in their temporarily shared residence by Cleveland police officers on April 8, 2011,

on allegations of felonious assault on a police officer. The arrest occurred in the early morning

when Plaintiffs were still in their boxer shorts, and police refused their demands to retrieve

additional clothing, instead issuing them jumpsuits at some point after Plaintiffs arrived at the

police station. Plaintiffs have repeatedly changed their stories since the arrest. And in this

case—the second lawsuit arising from the arrest—Plaintiffs allege that the officers violated their

Fourth Amendment rights by repeatedly striking them. Plaintiffs, who are homosexual, further

claim that the officers violated their rights under the Fourteenth Amendment Equal Protection

Clause by forcing them to remain in their boxer shorts. Plaintiffs also claim that several of these

actions constitute intentional infliction of emotional distress under Ohio law. Most of these

allegations were pleaded only against the officers as a group, and Plaintiffs did not amend their

pleadings as additional facts purportedly came to light. Instead, when Defendants moved for

summary judgment, Plaintiffs filed affidavits based upon “personal knowledge and belief” with

their opposition to summary judgment, claiming specifically—for the first time—which officer

allegedly committed each act. The district court granted Defendants’ motion to strike these

affidavits, explaining that the court did not know which statements were based solely on personal

knowledge, as required by the Federal Rules of Civil Procedure, and which statements were

based only upon belief. The district court then held that without those affidavits, the remaining

record did not contain sufficient evidence to permit Plaintiffs’ claims to survive Defendants’

motion for summary judgment.

We hold that whether to strike in whole or in part affidavits based upon “personal

knowledge and belief” is within the sound discretion of the district court, and that the district

court did not abuse its discretion here. We also hold that, construing in the light most favorable

to Plaintiffs the record that remains without the affidavits, Defendants are entitled to judgment as

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 3

a matter of law because Plaintiffs’ arguments fail on the merits. We therefore AFFIRM the

judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

A.

At approximately 2:00 AM on April 2, 2011, Steven Ondo and Jonathan Simcox were

returning home after several hours of drinking alcohol, and got into a heated argument outside

their apartment building. A neighbor came out to confront them, at which time Simcox told him

to “F*** off.” An altercation ensued involving all three men, during which the neighbor

identified himself as an off-duty police officer. Later that night police came to Plaintiffs’ door

and arrested them in their apartment. Plaintiffs spent two nights in jail and were treated for

minor injuries. Several days later, arrest warrants were issued for Plaintiffs for felonious assault

on a police officer. On April 8, 2011, at 7:00 AM, SWAT Team officers with the Cleveland

Police Warrant Team arrived at Plaintiff’s apartment in Cleveland. This ten-man team comprises

eight patrol officers under the command of two senior officers, Lieutenant Timothy Gaertner and

Sergeant Daniel Galmarini. After entering Plaintiffs’ apartment building through the unlocked

front door, Officer William Johnson encountered Ondo in the stairwell, informed Ondo of the

arrest warrant, and handed Ondo to other officers to handcuff. Johnson then encountered Simcox

in the stairwell, handcuffed him, and handed him over to other officers on the second floor.

Ondo and Simcox were both agitated and repeatedly asked why they were being arrested. The

officers then exited the building, keeping Plaintiffs on the lawn for several minutes as they

prepared to load them into a paddy-wagon van to travel to the next warrant location.

Jesse Simcox—the brother of Jonathan—had been sleeping in Ondo’s apartment that

night and went downstairs to investigate the commotion, where he found officers and Plaintiffs.

Plaintiffs claim the officers were “pushing [them] around” and punched them repeatedly in the

face, and repeatedly uttered anti-homosexual slurs. Plaintiffs allege that although the officers

allowed Jesse Simcox to fetch shoes for Plaintiffs, the police denied Jesse Simcox the

opportunity to get pants for them, and thus they were forced to go to jail in their underwear,

because, as officers allegedly told them, “faggots don’t wear pants in jail.” Plaintiffs alleged a

barrage of slurs, such as one officer’s saying, “It’s a house full of fags here.” Plaintiffs originally

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 4

alleged that they were forced “to wear only their underwear for over a day,” later changing their

story to claim they were not issued jumpsuits until after dinnertime. While in jail, neither

Plaintiff requested or received any medical care, or made any medical report to jail staff.

Moreover, no injuries are visible in Plaintiffs’ booking photos.

The police denied Plaintiffs’ allegations. Gaertner and Galmarini were never named as

defendants in the litigation, and insist that each Plaintiff, when detained, was immediately placed

under a supervisor’s observation and control. Gaertner and Galmarini swore during their

depositions that at no time did they observe any mistreatment or slurs. Gaertner did not know

anything about a request for pants, while Galmarini said he made the decision to keep Plaintiffs

in their boxer shorts because Plaintiffs were agitated (though not resistant), and because the

officers were executing a warrant for the alleged assault of an officer, so the supervisors decided

for officers’ safety to remove Plaintiffs from the apartment setting and convey them to jail as

quickly as possible. Contrary to Plaintiffs’ claims, their booking photos prove conclusively that

they were promptly issued jumpsuits once they arrived at the jail.

B.

Plaintiffs’ initial arrest occurred on April 2, 2011, and the second arrest followed on April

8, 2011. On January 18, 2012, Plaintiffs filed suit against the City of Cleveland and several of its

officers in federal district court, asserting claims under 42 U.S.C. § 1983 for violations of their

constitutional rights, as well as various state law claims. Plaintiffs later filed an amended

complaint that the district court dismissed on August 27, 2012, for failure to allege sufficient

facts to support the counts in the amended complaint. Among other things, the court held that

Plaintiffs’ alleged facts did not satisfy the standard for municipal liability. On April 5, 2013,

Ondo and Simcox filed the current § 1983 suit against seventeen defendants: the City of

Cleveland, Officer Clifford Kime, Officer Tintlenot, Officer Cavanaugh, Officer Kean, Sergeant

Elias Diaz, Officer Park, Officer Livingston, Officer Rojas, Officer Freeman, Officer Crytzer,

Officer William Johnson, Officer Sanchez, Officer Toomey, Corrections Officer Dennis Barack,

Corrections Officer Rowell, and Corrections Officer Robinson. On October 1, 2013, the court

dismissed Kime from the case under Federal Rule of Civil Procedure 41(a). The court later

dismissed Barack and Sanchez due to lack of proper service, dismissed Cavanaugh, Tintlenot,

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 5

Diaz, and Kean under Federal Rule of Civil Procedure 12(b)(6), and dismissed the City of

Cleveland on the basis of claim preclusion from the first lawsuit.

Of the remaining nine defendants, seven are members of the SWAT Team, and two are

corrections officers. The complaint includes claims brought under § 1983 for excessive force,

violation of privacy, failure to intervene, and denial of equal protection. It also includes two

Ohio state-law claims, one for intentional infliction of emotional distress and the other for

invasion of privacy. On February 15, 2014, Defendants moved for summary judgment.

Plaintiffs filed their opposition to summary judgment, including affidavits from Ondo and

Simcox in which they identified with specificity which officers purportedly committed various

acts. Defendants filed a motion to strike the affidavits because they were based on “personal

knowledge and belief,” instead of personal knowledge exclusively.

On April 28, 2014, the district court granted Defendants’ motion to strike, and held that

without the specific information in the affidavits, Plaintiffs’ allegations were insufficiently

supported by the remaining evidence in the record—which includes depositions from Plaintiffs,

Defendants, other police officers, and Jesse Simcox, plus jail booking photos of Plaintiffs—to

create a genuine issue of fact for a jury that the officers used excessive force or otherwise

mistreated Plaintiffs. Consequently, the court granted Defendants’ motion for summary

judgment. This timely appeal followed.

II. STANDARD OF REVIEW

“We review a district court’s discovery-related rulings under the highly deferential abuse-

of-discretion standard.” Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014).

This includes our review of a district court ruling on a motion to strike an affidavit. Aerel, S.R.L.

v. PCC Airfoils, LLC, 448 F.3d 899, 906 (6th Cir. 2006). A district court abuses its discretion

when it “relies on erroneous findings of fact, applies the wrong legal standard, misapplies the

correct legal standard when reaching a conclusion, or makes a clear error of judgment.” Reeb v.

Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 644 (6th Cir. 2006).

We review de novo a district court’s grant of summary judgment. Tompkins v. Crown

Corr, Inc., 726 F.3d 830, 837 (6th Cir. 2013). Summary judgment is appropriate if there is no

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 6

genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). The movant must show the district court that no genuine issue of material fact

exists, viewing all evidence in the light most favorable to the nonmoving party, and drawing all

justifiable inferences in the nonmoving party’s favor. Bennett v. City of Eastpointe, 410 F.3d

810, 817 (6th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). There is a

genuine issue of material fact only if “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The test is “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Id. at 251–52. We affirm a grant of summary

judgment “where the record as a whole could not lead a rational trier of fact to find for the non-

moving party.” Cummings v. City of Akron, 418 F.3d 676, 682 (6th Cir. 2005) (citation, internal

quotation marks and alterations omitted).

While the burden is initially on the moving party to show the absence of any genuine

issues of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the nonmoving party

must then present “significant probative evidence” to “do more than show that there is some

metaphysical doubt as to the material facts” to defeat the motion, Moore v. Philip Morris Cos.,

Inc., 8 F.3d 335, 340 (6th Cir. 1993). The court may grant summary judgment if the

nonmovant’s evidence is insufficiently probative to create a genuine issue of fact. Anderson,

477 U.S. at 249–50. When the nonmovant does not effectively address the movant’s assertion of

a fact, the district court may “consider the fact undisputed for purposes of the motion.” Fed. R.

Civ. P. 56(e)(2).

III. ANALYSIS

We must decide six issues in this appeal.

A.

First, we must decide whether the district court abused its discretion by granting

Defendants’ motion to strike Plaintiffs’ affidavits, in which Plaintiffs swore that their assertions

were based on “personal knowledge and belief.” Affidavits defeat summary judgment only if

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 7

they are “made on personal knowledge, set out facts that would be admissible in evidence, and

show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). The district court held that Plaintiffs’ affidavits did not fulfill this requirement.

Plaintiffs make three points. First, Plaintiffs argue that notwithstanding the words

contained in the affidavits, the context makes clear that Plaintiffs were making averments based

on personal knowledge only, not belief. Second, they say that courts are required in these

situations to segregate affidavits into those parts that are based upon personal knowledge, and to

admit those parts into evidence, while rejecting the remainder. And third, they contend that a

court can reject the affidavit entirely only if it clearly contradicts other evidence in an attempt to

create “sham facts.”

In 2009, we held that when an affidavit is partially admissible and partially inadmissible,

the district court must reject only those parts that are inadmissible. Upshaw v. Ford Motor Co.,

576 F.3d 576, 593 (6th Cir. 2009). Also in Plaintiffs’ favor, the Fifth Circuit ruled that “magic

words” are not required to make explicit that an affiant’s declaration is based on personal

testimony and competence, holding that a court can conclude from the context of the declaration

whether those requirements are satisfied. DIRECTV, Inc. v. Budden, 420 F.3d 521, 530 (5th Cir.

2005); accord Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 135 n.9 (4th Cir. 2002); Barthelemy v.

Air Lines Pilots Ass’n, 897 F.2d 999, 1018 (9th Cir. 1990). However, district courts generally

have broad discretion regarding evidentiary rulings. District courts are even empowered to

exclude evidence sua sponte. HDM Flugservice GmbH v. Parker Hannifin Corp., 332 F.3d

1025, 1034 (6th Cir. 2003).

We balanced these principles in an unpublished—and thus nonbinding1—opinion in

Totman v. Louisville Jefferson County Metro Government, 391 F. App’x 454 (6th Cir. 2010),

concerning a person arrested on drug charges, who claimed that police used excessive force

during his detention. Id. at 455. Totman’s specific allegations regarding how the police

physically abused him are similar to Plaintiff’s allegations here, and are followed by similarly

conflicting accounts offered during litigation, except that Totman indisputably suffered physical

1

“Unpublished decisions in the Sixth Circuit are, of course, not binding precedent on subsequent panels,

but their reasoning may be instructive or helpful.” Crump v. Lafler, 657 F.3d 393, 405 (6th Cir. 2011) (internal

quotation marks and citation omitted).

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 8

injuries during his detention. See id. at 456–59. Totman’s statement included that he swore his

assertions were “true and correct to the best of his knowledge and belief.”2 Id. at 464 (alterations

omitted). We rejected the statement’s admissibility as evidence, holding that its allegations “go

beyond Totman’s personal knowledge and extend to matters within Totman’s belief,” and as

such cannot be regarded as evidence giving rise to a genuine issue of material fact under Federal

Rule of Civil Procedure 56 to defeat summary judgment. Id. An affiant’s “statement . . . based

upon his ‘belief’ . . . [does] not demonstrate the personal knowledge required by [Rule 56].”

Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007). Our affirming the district court’s

summary judgment for the defendants in Totman was further buttressed by the plaintiff’s lack of

certainty regarding precisely which officer committed each allegedly wrong act during the

incident. See id. at 465.

This is an easier case than Totman. Here, as we explain below, there are clear factual

discrepancies between the original complaint in the first lawsuit, subsequent complaints, the

affidavits, and the admitted evidence. Some of Plaintiffs’ assertions here are either contradicted

by the booking photos, or demonstrably false, such as the claim in their initial lawsuit that they

were forced to remain in their underwear throughout their entire detention and then forced to

walk home in their underwear, instead of being clothed in jumpsuits. In Totman, there were

actual medical reports showing the plaintiff’s injuries, and the officer likely responsible had a

history of excessive force. There are no such reports or evidence here—to the contrary, their

booking photos show no signs of injury or abuse—nor have Plaintiffs shown that the officers in

question have a checkered history regarding the use of force. So while there was a significant

factual basis for the accounts of the Totman plaintiff, the same cannot be said of Plaintiffs’

affidavits here.

“An affidavit or declaration used to support or oppose a motion [for summary judgment]

must be made on personal knowledge, set out facts that would be admissible in evidence, and

show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). “It must be remembered that when the moving party presents admissible evidence

2

It is of no moment that Totman’s statement was styled as a verified complaint, rather than an affidavit.

The same rule governs both types of submissions for purposes of defeating a motion for summary judgment. El Bey

v. Roop, 530 F.3d 407, 414 (6th Cir. 2008).

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 9

justifying a summary judgment if uncontradicted, the opposing party has the duty to show the

existence of a genuine issue of material fact.” 10B Wright, Miller & Kane, Federal Practice and

Procedure § 2738, at 345 (3d ed. 1998) (referencing Rule 56(e), the predecessor of Rule

56(c)(4)). As part of this duty, Federal Rule of Civil Procedure 56(c)(4) “limits the matter to be

properly included in an affidavit to facts, and the facts introduced must be alleged on personal

knowledge. Thus, . . . statements made on belief or ‘on information and belief,’ cannot be

utilized on a summary-judgment motion.” Id. at 345–46, 350–54 (footnotes omitted).

We hold that when affidavits based on knowledge and belief are submitted to support or

oppose a motion for summary judgment, the district court has discretion to determine whether it

can differentiate between knowledge and belief for each averment in the affidavit. If the court

can distinguish between the two, then, as was the case in Upshaw, the court should excuse the

affiant’s stylistic error, and must admit the parts based solely upon personal knowledge, while

striking the parts based upon belief. If the court cannot differentiate between the two, then

consistent with the rationale in Wright & Miller, the court must strike the affidavit in its entirety,

as in Totman. We review for abuse of discretion the district court’s decision on whether it could

distinguish between knowledge and belief for each of the affidavit’s averments, and thus whether

to strike in part or to strike in toto.

The district court here found that it could not make those determinations regarding the

affidavits filed by Ondo and Simcox, and so struck both affidavits in their entirety. We conclude

that the district court did not abuse its discretion in doing so.

B.

We turn next to claims that arguably were abandoned at oral argument. During

argument, Plaintiffs’ counsel, in responding to questions from the bench, conceded that without

the stricken affidavits, all of Plaintiffs’ claims would fail, raising the possibility that Plaintiffs

were abandoning the entirety of the remainder of their appeal. We note that most of the

affidavits’ content concerned specific alleged incidents of excessive physical force, identifying

individual officers with individual acts. So as we address in some detail hereinafter, without the

affidavits, Plaintiffs’ claims of excessive force and intentional infliction of emotional distress

cannot survive summary judgment.

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 10

However, the equal-protection claim requires a closer look. We should not necessarily

construe a single inartful or ill-advised verbal response from counsel as waiving anything more

than was directly at issue in the discussion at that time. Even in district court, where it is not

uncommon for a claim to be dropped during litigation, we are not quick to declare that a claim

has been abandoned. See, e.g., Hayward v. Cleveland Clinic Found., 759 F.3d 601, 615–18 (6th

Cir. 2014). We are not aware of any case in which we have concluded, after full briefing, that

Plaintiffs have completely abandoned every claim in their entire appeal based on a single verbal

exchange during argument that did not include a clear and unequivocal surrender of all

remaining issues. We are aware of the potentially chilling effect such a practice would have.

This issue is muddled by the inconsistency of Plaintiffs’ argument. In their complaint,

Plaintiffs pleaded that by preventing them from wearing pants, the officers “treated [them]

differently” because they are homosexual, and also that the police officers used “increased

violence and excessive force” against Plaintiffs and subjected them to “ridicule” and “called

them derogatory names, intended to humiliate them,” “because of their sexual orientation.”

These purportedly injurious acts, Plaintiffs allege, were inflicted upon them “because of their

sexual preference” in violation of the Equal Protection Clause. Plaintiffs later cited among their

causes of action that their equal-protection rights were violated when they were treated

differently in the course of actions that otherwise violated the Fourth, Eighth, and Fourteenth

Amendments. Plaintiffs further elaborated upon these points when opposing Defendants’ motion

for summary judgment, and the district court construed their argument as asserting that the

officers violated their equal-protection rights both by forcing them to remain in their underwear

and by subjecting them to anti-homosexual slurs. On appeal, Plaintiffs’ principal brief makes

clear their argument: “Plaintiffs do not contend that their constitutional rights to equal protection

were violated because the Defendants used homophobic slurs or because they had a

constitutional right to go to jail in particular clothing. Rather, Plaintiffs’ equal protection claims

are based on Defendants’ intentional decision to treat them differently simply because they are

gay.” Yet in their reply brief, although at first they reiterate their broad argument by arguing that

any state actions motivated by disapproval of homosexuality violate the Equal Protection Clause,

they then immediately reverse course, asserting that “Appellants are not claiming that being

called [homophobic slurs] numerous times is an Equal Protection violation. They are also not

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 11

claiming that being told ‘faggots don’t get to wear pants to jail’ is an Equal Protection violation.”

Rather, Plaintiffs’ reply brief explains, “The act of . . . withholding pants from [them] only

because they are gay is the violation.” Subsequently, at the relevant point during oral argument,

Plaintiffs’ counsel, in discussing part of their equal-protection claim, seemed to recur to

Plaintiffs’ initial appellate argument, separately arguing all three grounds to support their alleged

equal-protection argument that they had raised in their principal brief: (1) that officers physically

mistreated Plaintiffs because of their sexuality; (2) that officers required them to go for a

prolonged period of time without proper clothing; and (3) that officers called them names.

During oral argument, one member of the panel posed this question to counsel for

Plaintiffs regarding the equal-protection claim: “Is it your view that if you strike all the

affidavits there really is no evidence supporting the claim?” Counsel responded, “I do think that

as a result of striking the affidavits the equal protection claim was also done away with.” That

judge pressed further: “Properly. You have to have the affidavits to support either that claim or

the excessive force?” And counsel answered, “Yes.” The stricken affidavits consisted mostly of

Plaintiffs’ asserting which individual defendant had engaged in which instance of mistreatment.

Without those affidavits, the record contains no evidence as to the identity of the officers who

allegedly used excessive force against Plaintiffs. But Plaintiffs’ equal-protection claim is not

dependent on identifying any specific officer. The claim is that the police transported them

inappropriately attired. It is true that the record on summary judgment contains Jesse Simcox’s

deposition testimony that the unidentified officer who allowed him to get shoes for Plaintiffs also

prevented him from getting pants for them because “faggots don’t get to wear pants in jail.” The

record also contains Officer Johnson’s deposition testimony that he talked to Jesse and asked him

to help “find” Plaintiffs some shoes. And nowhere except in the affidavits did Plaintiffs even

attempt to link those two pieces of testimony so as to identify Officer Johnson as having

delivered that single anti-homosexual slur. But the deposition evidence supports Plaintiffs’

claim that the officers on the scene transported Plaintiffs—wearing only their boxer shorts—to

jail.

In sum, Plaintiffs’ equal-protection argument was framed broadly, then narrowly, then

broadly again, then possibly abandoned altogether. The inconsistencies in Plaintiffs’ position are

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 12

manifest. We will therefore consider their equal-protection claim only as their final brief

restated it, that the officers’ keeping them in their boxer shorts while transporting them to jail

violated the Equal Protection Clause.

C.

Regardless of our stance on abandonment, on the remaining record the equal-protection

claim fails as a matter of law.

Plaintiffs claim that Defendants’ keeping them in their underwear violates Plaintiffs’

rights under the Equal Protection Clause, which requires that no State may “deny to any person

within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1, cl. 4. The

general principle is that similarly situated persons should be treated alike. City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985). More specifically as relevant here, the Equal

Protection Clause “protects against invidious discrimination among similarly-situated individuals

or implicating fundamental rights.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250,

260 (6th Cir. 2006). When objecting to how police officers effectuate an arrest warrant in this

context, “the constitutional basis for objecting to intentionally discriminatory application of laws

is the Equal Protection Clause.” Whren v. United States, 517 U.S. 806, 813 (1996), quoted in

Stemler v. City of Florence, 126 F.3d 856, 873 (6th Cir. 1997).3

1.

Plaintiffs argue that state actions involving homosexuals should trigger some form of

heightened scrutiny under the Equal Protection Clause. Heightened scrutiny is generally either

“strict” or “intermediate.” State actions that treat individuals differently on the basis of a

fundamental right trigger strict scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1988). For years, the

Court held that a right is fundamental if it is “fundamental to our scheme of ordered liberty,” as

evidenced by “whether this right is deeply rooted in this Nation’s history and tradition.”

McDonald v. City of Chi., 561 U.S. 742, 767 (2010) (emphasis and internal quotation marks

omitted); see also Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997) (providing a similar

3

Although Plaintiffs repeatedly asserted that the police allegedly uttered anti-homosexual statements, they

correctly concede in their reply brief that the uttering of slurs or epithets by police officers—while completely

inappropriate—is not unconstitutional. Williams v. Sandel, 433 F. App’x 353, 362 (6th Cir. 2011). “Name calling is

not a constitutional violation.” Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985).

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 13

formulation that the Supreme Court has occasionally employed in cases asserting unenumerated

rights). Strict scrutiny requires the government to show that the challenged state action is

narrowly tailored to achieve a compelling public interest. City of Cleburne, 473 U.S. at 440.

Strict scrutiny also applies to state actions that differentiate on the basis of a suspect

classification, of which the Supreme Court recognizes only three: race, Gratz v. Bollinger, 539

U.S. 244, 270 (2003); alienage, Graham v. Richardson, 403 U.S. 365, 371–72, 376 (1971); and

national origin, Oyama v. California, 332 U.S. 633, 644–46 (1948). State actions treating

members of a quasi-suspect class differently from other persons trigger intermediate scrutiny,

which requires the government to establish that the action is substantially related to achieving an

important public interest. Craig v. Boren, 429 U.S. 190, 197 (1976). The Court has recognized

two such classifications: gender, United States v. Virginia, 518 U.S. 515, 533 (1996), and

illegitimacy, Mills v. Habluetzel, 456 U.S. 91, 98–99 (1982).

Equal-protection claims that neither implicate a fundamental right nor involve a suspect

or quasi-suspect class require only rational-basis review. Romer v. Evans, 517 U.S. 620, 631

(1996); Liberty Coins, LLC v. Goodman, 748 F.3d 682, 693 (6th Cir. 2014). Under that

deferential standard, the burden is on the challenger to show that the government’s action is not

rationally related to any legitimate public interest. Heller v. Doe, 509 U.S. 312, 319 (1993).

Many state actions burden some persons in a way that is different from the way they burden

others, and the Equal Protection Clause generally requires no more than a reasoned basis for such

differing treatment in situations where foundational liberties and suspect criteria are not

implicated. Under rational-basis review, the government’s actions enjoy a “strong presumption

of validity.” Id. at 319.

First, Plaintiffs cannot demonstrate that the state action of which they complain burdens a

fundamental right. When the Supreme Court held that state laws against sodomy violate the Due

Process Clause, it did so using the language of rational-basis review, rather than any form of

heightened scrutiny. See Lawrence v. Texas, 539 U.S. 558, 574–78 (2003). The Court did not

hold that the Constitution includes a fundamental right to homosexual conduct. Whether the

Court’s recent decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), recasts engaging in

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 14

homosexual acts as a fundamental right is irrelevant, because the decision by the police relevant

here does not impair Plaintiffs’ ability to engage in such conduct.

Nor can Plaintiffs establish that homosexuals are a suspect or quasi-suspect class. The

Court has never held that homosexuals satisfy the criteria for such classification. See Bowen v.

Gilliard, 483 U.S. 587, 602 (1987) (discussing criteria for suspect or quasi-suspect

classification); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (same). The

Court has further explained that the rationale underlying these factors is that heightened scrutiny

may be justified if a group requires “extraordinary protection from the majoritarian political

process.” Id. The Supreme Court has not recognized any new constitutionally protected classes

in over four decades, and instead has repeatedly declined to do so. Moreover, the Court has

never defined a suspect or quasi-suspect class on anything other than a trait that is definitively

ascertainable at the moment of birth, such as race or biological gender.

In Obergefell, the Court was explicitly asked by the petitioners and various amici to

declare that homosexuals are a specially protected class, and thus that government actions that

disfavor homosexuals are subject to heightened scrutiny. See Pet’r Br. at 38–49, Obergefell,

135 S. Ct. 2584 (No. 14-556); see also, e.g., Brief of Amici Curiae GLMA et al. in Support of

Pet’rs passim, Obergefell, 135 S. Ct. 2584 (No. 14-556). But the Court held only that the Equal

Protection Clause was violated because the challenged statutes interfered with the fundamental

right to marry, not that homosexuals enjoy special protections under the Equal Protection Clause.

Obergefell, 135 S. Ct. at 2602–05.

2.

We have always applied rational-basis review to state actions involving sexual

orientation. See Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012); Scarbrough,

470 F.3d at 260–61; Stemler, 126 F.3d at 873–74. Under the law-of-the-circuit doctrine, an issue

decided by a panel of this court can be reconsidered only by the full court sitting en banc, or if

there has been a supervening decision by the Supreme Court. Darrah v. City of Oak Park,

255 F.3d 301, 309 (6th Cir. 2001). Plaintiffs have not offered any argument as to why

heightened scrutiny should apply to state actions involving homosexuals, and indeed failed even

to explore the relevant cases. And as we have already explained, Obergefell did not abrogate

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 15

those prior cases. We therefore have no basis for reviewing Plaintiffs’ equal-protection claim on

any basis more stringent than rational-basis review.

Applying the rational-basis test here, viewing the admitted evidence in the light most

favorable to Plaintiffs and drawing all inferences in their favor, we hold that a police officer’s

decision to keep Plaintiffs in their boxer shorts does not violate the Constitution. Plaintiffs have

not shown that our precedents recognize as an equal-protection violation the decision to keep

suspects in their current state of dress—including boxer shorts—so long as the person is attired

such that his appearance is not obscene and the police officer provides an explanation that

satisfies the rational-basis test. Sergeant Galmarini’s explanation here of concern for officers’

safety—whether subjectively true or not—is presumed valid and rationally related to a legitimate

public interest. Therefore Plaintiffs’ grievance regarding being kept in their boxer shorts until

the police could issue them jumpsuits, even if motivated in part by sentiments regarding

homosexual behavior, still does not violate the Constitution.

D.

Plaintiffs’ next claim is that the arresting officers used excessive force against them.4

“The Fourth Amendment prohibits the use of excessive force by arresting and investigating

officers.” Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). Courts apply an objective

reasonableness test when considering whether officers used excessive force, Graham v. Connor,

490 U.S. 386, 395 (1989), which requires that we carefully balance the “nature and quality of the

intrusion on the individual’s Fourth Amendment interests against the countervailing

governmental interests at stake,” id. at 396 (internal quotation marks omitted); accord Ciminillo

v. Streicher, 434 F.3d 461, 466–67 (6th Cir. 2006). Such a test “is not capable of precise

definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559 (1979). Instead,

4

Plaintiffs muddle their argument by suggesting that officers’ using “increased violence” on account of

Plaintiffs’ homosexuality is both an excessive-force violation and an equal-protection violation, but they cite no

supporting authority. Use of excessive force during a search or seizure is solely a Fourth Amendment violation,

Ciminillo v. Streicher, 434 F.3d 461, 464–65 (6th Cir. 2006), an Amendment which applies to the States and their

political subdivisions through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 650–55 (1961). Once an

arrest ends, and a person in police custody transitions from arrestee to pretrial detainee, the Fourteenth Amendment

thenceforth governs any excessive-force claims that arise during the pretrial detention. Kingsley v. Hendrickson,

135 S. Ct. 2466, 2472–74 (2015); Graham v. Connor, 490 U.S. 386, 395 n.10 (1989). But claims of excessive force

in the context relevant here of an initial encounter with police is governed by the Fourth Amendment, and is not

somehow enhanced, or additionally sounding in the Fourteenth Amendment, because of police officers’ sentiments

regarding homosexuality.

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 16

“[t]hese factors are assessed from the perspective of a reasonable officer on the scene making a

split-second judgment under tense, uncertain, and rapidly evolving circumstances without the

advantage of 20/20 hindsight.” Burgess v. Fischer, 735 F.3d 462, 473 (6th Cir. 2013); accord

Graham, 490 U.S. at 396. The Supreme Court’s most recent decision in this area of law

confirms that this approach is correct, listing various non-exclusive factors a court may look to,

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015), and then concluding that this “objective

standard adequately protects an officer who acts in good faith. . . stress[ing] that a court must

judge the reasonableness of the force used from the perspective and with the knowledge of the

defendant officer,” id.5

When claiming damages for violations of constitutional rights, Plaintiffs “must allege,

with particularity, facts that demonstrate what each defendant did to violate the asserted

constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008). Plaintiffs’

excessive-force claim consisted of nonspecific allegations that unnamed officers punched them

repeatedly, especially “in the face” or “in the nose.” In the absence of the affidavits, these

allegations of physical mistreatment are not sufficiently specific under Lanman to withstand

Defendants’ motion for summary judgment. We note that following their first arrest on April 2,

Plaintiffs sought and received medical care for the minor injuries they sustained during the fight

with the off-duty officer. But after the April 8 arrest, despite their allegations of repeated

physical strikes, Plaintiffs sought no medical treatment and made no report of such abuse.

Moreover, no injuries are visible in their booking photos, which is especially significant given

that the only specific aspect of Plaintiffs’ allegations is that they were struck on their faces.

Plaintiffs’ complaint and the discovery that was entered into evidence either attribute purported

wrongful acts to the group as a whole, or to officers described in such general terms (e.g.,

wearing glasses) as to foreclose attributing any one act to any one officer. Rather than

attempting to amend their complaint, Plaintiffs waited eleven months, and only then submitting

affidavits to augment these allegations in their opposition brief to Defendants’ motion for

summary judgment. Because the district court was within its discretion in striking those

5

Much of Kingsley’s holding pertains only to due-process issues that arise in the context of operating a

detention facility, but the aspects cited here would apply to excessive-force claims against police officers regardless

of whether the purported violation occurred during an arrest or during pretrial detention.

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 17

affidavits, the allegations of physical mistreatment are therefore not supported by sufficient

evidence to defeat summary judgment.

E.

We consider next whether those officers present during the April 8 arrest who did not

physically participate in it, but instead observed the arresting officers perform the arrest, should

be liable for failing to intervene to stop the arresting officers’ use of excessive force. The

general rule is that police officers who were not actually involved in the challenged conduct will

be found to have violated the Fourth Amendment only if those officers “‘observed or had reason

to know that excessive force would be or was being used’ and ‘had both the opportunity and the

means to prevent the harm from occurring.’” Burgess, 735 F.3d at 475 (quoting Turner v. Scott,

119 F.3d 425, 429 (6th Cir. 2011)) (emphasis omitted).

As we have already explained, Plaintiffs’ excessive-force claim fails because of

insufficient probative evidence to defeat summary judgment. Because Plaintiffs present no

viable claim of excessive physical force, they can show no harm that other officers could have

intervened to prevent. And because the alleged use of anti-homosexual slurs is not a violation of

the Constitution regardless of whether it is examined as an excessive-force claim or an equal-

protection claim, the failure of other officers to prevent that conduct did not violate Plaintiffs’

rights.

F.

Finally, we consider whether the district court erred in granting summary judgment to

two of the defendants—Park and Rojas—on Plaintiffs’ claim of intentional infliction of

emotional distress (IIED). The district court exercised supplemental jurisdiction over that state-

law claim, so we are required to apply Ohio law here. Miller v. Currie, 50 F.3d 373, 377 (6th

Cir. 1995). The elements of IIED in the State of Ohio are:

(1) that the actor either intended to cause emotional distress or knew or should

have known that actions taken would result in serious emotional distress to the

plaintiff, (2) that the actor’s conduct was so extreme and outrageous as to go

beyond all possible bounds of decency and was such that it can be considered as

utterly intolerable in a civilized community, (3) that the actor’s actions were the

proximate cause of the plaintiff’s psychic injury, and (4) that the mental anguish

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 18

suffered by the plaintiff is serious and of a nature that no reasonable man could be

expected to endure it.

Burkes v. Stidham, 668 N.E.2d 982, 989 (Ohio Ct. App. 1995) (citations omitted), quoted in

Rosebrough v. Buckeye Valley High Sch., 690 F.3d 427, 433 (6th Cir. 2012). We have held that

Ohio courts narrowly define “extreme and outrageous conduct,” such that this standard is

difficult to meet. Rosebrough, 690 F.3d at 434.

In their stricken affidavits, Ondo and Simcox identify Park and Rojas as the officers who

committed several of the more extreme actions (e.g., punching in the face), and uttered some of

the offensive words. In district court, Park and Rojas claimed immunity under Ohio Revised

Code § 2744.03(A)(6), while Plaintiffs argue that one of the statutory exceptions to that

immunity applies. But because the district court struck the affidavits from the record, the record

contains no evidence to support Plaintiffs’ IIED claim. The district court correctly granted

summary judgment on this count.

IV. CONCLUSION

For the foregoing reasons, we hold that the district court was within its discretion when it

struck the affidavits that were based upon “personal knowledge and belief,” and did not err in

concluding that Defendants are entitled to summary judgment. We therefore AFFIRM the

judgment of the district court.

No. 14-3527 Ondo, et al. v. City of Cleveland, et al. Page 19

_____________________________________________________

CONCURRING IN PART AND DISSENTING IN PART

_____________________________________________________

SUTTON, Circuit Judge, concurring in large part and concurring in the judgment. I join

all but Parts III.B and III.C of Judge Batchelder’s thorough and persuasive opinion. In Part III.B,

the majority holds that Ondo and Simcox preserved one of their equal protection arguments—

namely, their claim that “the officers’ keeping them in their boxer shorts while transporting them

to jail violated the Equal Protection Clause.” Supra at 12. I respectfully disagree. During oral

argument, counsel for Ondo and Simcox conceded that all of their equal protection claims would

fail if the plaintiffs’ affidavits were stricken. Oral Argument at 10:12–55, Ondo v. City of

Cleveland (No. 14-3527). Here is the question: “You have to have the affidavits to support

either that [equal protection] claim or excessive force?” Id. at 10:55–59. Here is the answer:

“Yes.” Id. at 11:00–01. I would hold Ondo and Simcox to their counsel’s answer—that, in the

absence of the affidavits, they do not have a cognizable excessive force or equal protection

claim. See United States v. Olano, 507 U.S. 725, 732–33 (1993). The majority resists this

conclusion because it is not aware “of any case in which we have concluded, after full briefing,

that Plaintiffs have completely abandoned every claim in their entire appeal based on a single

verbal exchange during argument that did not include a clear and unequivocal surrender of all

remaining issues.” Supra at 10. That is not what happened here. Counsel conceded only that if

the affidavits were struck, Ondo and Simcox’s remaining claims would fail. As to that kind of

concession—which attorneys often make for tactical reasons—we have frequently respected

counsels’ admissions at oral argument. See, e.g., United States v. Gibney, 519 F.3d 301, 304 (6th

Cir. 2008); United States v. Smith, 304 F. App’x 397, 399 (6th Cir. 2008); United States v.

Hawkins, 31 F. App’x 304, 304 (6th Cir. 2002). Under these circumstances, I see no reason in

Part III.C to reach the merits of the equal protection claims.