Respondents Brief — Anita Arrington-Bey, Administratrix of the Estate of Omar K. Arrington-Bey, Petitioner v. City of Bedford Heights, Ohio, et al.

No. 17-543

In the

Supreme Court of the United States

ANITA ARRINGTON-BEY, Administratrix of

the Estate of Omar K. Arrington-Bey,

Petitioner,

v.

CITY OF BEDFORD HEIGHTS, OHIO, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Sixth Circuit

BRIEF IN OPPOSITION

James A. Climer

Frank H. Scialdone*

John D. Pinzone

Mazanec, Raskin & Ryder Co., L.P.A.

100 Franklin’s Row

34305 Solon Road

Cleveland, OH 44139

(440) 248-7906

fscialdone@mrrlaw.com

Counsel for Respondents

* Counsel of Record

276631

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONs PRESENTED FOR REVIEW

This Petition raises the following questions that were

fully considered and correctly decided below:

Whether the unanimous Sixth Circuit panel acted in

accord with settled law in Bd. of Cty. Comm’rs of Bryan

Cty. v. Brown, 520 U.S. 397, 406 (1997) and City of Canton

v. Harris, 489 U.S. 378, 388 (1989) that provide when a

plaintiff claims that the municipality had not directly

inflicted an injury – like here – but nonetheless had caused

an employee to do so, rigorous standards of culpability and

causation must be applied to ensure that the municipality

is not held liable solely for the actions of its employees.

Whether this Court should reconsider its White v.

Pauly, 137 S.Ct. 548 (2017) decision that emphasized the

necessity of particularized case law to avoid the individual

defendants’ qualified immunity, or re-apply the facts of

this case to the established law when the unanimous Sixth

Circuit panel could find no sufficiently particularized

case law that would have required the arresting officers

to drive Omar to the hospital rather than the jail under

these circumstances, or the jailers to do more then what

they did.

ii

TaBLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

I. STATEMENT OF THE facts . . . . . . . . . . . . . . . . 1

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Background regarding Bedford Heights Jail . . . 1

C. Incident at Lowe’s and Omar ArringtonBey’s arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

D. Bey’s detention at Bedford Heights Jail . . . . . . . 6

E. Bey’s assault of Officers . . . . . . . . . . . . . . . . . . . . . 9

II. REasons for denying this Petition . . 11

A. A rrington-Bey has not articulated a

“compelling” reason for this Court’s

discretionary review as to Respondent

City of Bedford Heights . . . . . . . . . . . . . . . . . . . . 11

1.

T he Si x t h Ci r c u it ’s u na n i mou s

opinion is consistent with Supreme

Court precedent . . . . . . . . . . . . . . . . . . . . . . 12

iii

Table of Contents

Page

2.

Petitioner’s circuit conflict is illusory . . . . 16

B. Petitioner has not articulated a “compelling”

reason for this Court’s review and merely

seeks purported error correction as to

the individual officers . . . . . . . . . . . . . . . . . . . . . . 20

III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iv

TaBLE OF CITED aUTHORITIES

Page

Cases

Aldridge v. Montgomery,

753 F.2d 970 (11th Cir. 1985) . . . . . . . . . . . . . . . . . . . 23

Anderson v. Creighton,

483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 21-22

Bd. of Cty. Comm’rs of Bryan Cty. v. Brown,

520 U.S. 397 (1997) . . . . . . . . . . . . . . . . . . . . . . . passim

Brown v. Hughes,

894 F.2d 1533 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . 24

Cain v. Irvin,

286 Fed. Appx. 920, 2008 WL 2776863

(6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Chew v. Gates,

27 F.3d 1432 (9th Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . 17

City of Canton v. Harris,

489 U.S. 378 (1989) . . . . . . . . . . . . . . . . . . . . . . . passim

City of Los Angeles v. Heller,

475 U.S. 796 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

v

Cited Authorities

Page

Cooper v. Dyke,

814 F.2d 941 (4th Cir. 1987) . . . . . . . . . . . . . . . . . . . . 23

Darrah v. Krisher,

865 F.3d 361 (6th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 23

Dominguez v. Correctional Medical Services,

555 F.3d 543 (6th Cir. 2009) . . . . . . . . . . . . . . . . . . . . 23

Fagan v. City of Vineland,

22 F.3d 1283 (3d Cir. 1994) . . . . . . . . . . . . . . . . . . 19, 20

Fairley v. Luman,

281 F.3d 913 (9th Cir. 2002) . . . . . . . . . . . . . . . . . 16, 17

Febus-Rodriguez v. Betancourt-Lebron,

14 F.3d 87 (1st Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . 12

Gray v. City of Detroit,

399 F.3d 612 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . . 18

Grazier ex rel. White v. City of Philadelphia,

328 F.3d 120 (3d Cir.2003) . . . . . . . . . . . . . . . . . . . . . 20

Hagans v. Franklin Cty. Sheriff’s Office,

695 F.3d 505 (6th Cir. 2012) . . . . . . . . . . . . . . . . . . . . 12

Leatherman v. Tarrant Co. Narcotics

Intelligence and Coordination Unit,

507 U.S. 163 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 12-13

vi

Cited Authorities

Page

Mark v. Borough of Hatboro,

51 F.3d 1137 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . 20

McElligott v. Foley,

182 F.3d 1248 (11th Cir. 1999) . . . . . . . . . . . . . . . . . . 24

Medina v. County of Denver,

960 F.2d 1493 (10th Cir. 1992) . . . . . . . . . . . . . . . 17, 18

Modd v. Cnty. of Ottawa,

No. 1:10–CV–337, 2012 WL 5398797

(W.D. Mich. Aug. 24, 2012) . . . . . . . . . . . . . . . . . . . . . 18

Monell v. Dep’t of Soc. Servs. of City of New York,

436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . . . . . . . . 11, 15

N.L.R.B v. Pittsburgh S.S. Co.,

340 U.S. 498 (1951) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Owen v. City of Indep.,

445 U.S. 622 (1980) . . . . . . . . . . . . . . . . . . . . . 12, 13, 14

Pearson v. Callahan,

555 U.S. 223 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Robles v. City of Fort Wayne,

113 F.3d 732 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 12

Scott v. Clay County,

205 F.3d 867 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . . . 18

vii

Cited Authorities

Page

Szabla v. City of Brooklyn Park, Minnesota,

486 F.3d 385 (8th Cir. 2007) . . . . . . . . . . . . . . . . . 13, 16

Terrance v. Northville Reg’l Psychiatric Hosp.,

286 F.3d 834 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . . 23

Thomas v. City of Philadelphia,

804 A.2d 97 (Pa. Comm. Ct. 2002) . . . . . . . . . . . . . . 20

Townes v. City of New York,

176 F.3d 138 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 12

White v. Pauly,

137 S. Ct. 548 (2017) . . . . . . . . . . . . . . . . . 20, 21, 22, 24

Young v. City of Augusta,

59 F.3d 1160 (11th Cir. 1995) . . . . . . . . . . . . . . . . . . . 12

1

I.

STATEMENT OF THE facts

The Court of Appeals for the Sixth Circuit adequately

stated the pertinent facts relevant the Petitioner’s claims.

(Pet. at App. 2-6.) For this Court’s convenience, the

Respondents provide the following.

A.

Introduction

This matter arises from the unforeseeable death of

Petitioner’s decedent, Omar Arrington-Bey, while he

was in custody at the Bedford Heights jail. Omar was

arrested for destroying property at a Lowe’s store and

that he was alternately agitated and rambling, then calm

and cooperative with the arresting officers and the jail

personnel. At the jail, Omar was placed in a segregation

room and booking was delayed until he calmed down. His

on again-off again behavior continued in the jail but he was

eventually booked. He told the officer during his screening

that he had not seen a doctor for any psychiatric issue and

was not taking any psychiatric medications. During and

after his booking Omar was calm and compliant so Omar

was let out of the segregation room without handcuffs

so he could make a phone call. Without warning, Omar

physically attacked two officers. Omar was eventually

subdued but he passed out and despite immediate

efforts to resuscitate him, Omar later died. The coroner

attributed the death to “sudden cardiac event during a

physical altercation in association with bipolar disease.”

B. Background regarding Bedford Heights Jail

Bedford Heights Jail is a full service jail facility

that provides on-site nurses for medical care of inmates.

2

The nurses evaluate inmate medical complaints, provide

inmate medical information to the jail doctor, and assist

in providing inmates with medical care. As part of the

medical care provided, nurses verify and confirm a

prescription for a jail detainee’s unmarked medication.

Moreover, nurses would provide detainees entering the

jail with further medical evaluation.

Bedford Heights Jail also has in place appropriate

policies and procedures w ith respect to offender

intake, inmate healthcare, and the handling of inmate

pharmaceuticals. The policies state that the jail is to

identify offenders requiring special management “at

the time of intake, or as soon thereafter as possible.”

The policies describe severely disturbed or mentally ill

offenders in need of special management as those “who

present a danger to themselves or others or are incapable

of attending to basic physiological needs because of a

mental or emotional problem.”

In accord with its policies, the Bedford Heights Jail

provides an intake booking process for offenders entering

the jail, which includes a medical and mental health

screening. The initial screening form expressly inquires

as to whether the inmate has seen a medical provider for

a psychiatric condition or is taking prescribed psychiatric

medications.

The Bedford Heights Jail policies also address the

safe, secure use of prescription medications. Offenders

entering the jail in possession of medication are permitted

to continue taking the medications only after verification

by the nurse of need, ownership, and content of the

prescription. If an inmate enters the jail with loose pills

3

of an unsubstantiated nature, a nurse would attempt to

verify the nature and reason for the pills and then proceed

with the aforementioned verification process.

C.

Incident at Lowe’s and Omar Arrington-Bey’s

arrest.

On June 21, 2013, Petitioner drove Omar ArringtonBey (“Bey”) to the Bedford Heights Lowe’s store – his

former place of employment – to pick up his paycheck.

Petitioner parked in the Lowe’s parking lot and Bey

continued by himself into the store. Russell Nelson was

the Assistant Store Manager on duty when Bey entered

Lowe’s. Bey had recently been fired from his employment

with Lowe’s due to attendance issues. Nelson approached

Bey and asked if he could help him with anything, and

Bey responded no. According to Nelson, Bey then began

to talk disjointedly about selling gloves to Lowe’s. Nelson

testified that Bey was calm and Nelson attempted to lead

Bey out of the store.

Once outside of the store, Bey told Nelson that he

wanted his $200 paycheck. When Nelson told Bey that

he would have another employee contact him about the

paycheck, Bey yelled he wanted his money and proceeded

back into the store. Inside the store, Bey jabbed at Nelson

to get him away and then began kicking and throwing cans

of stain as he walked down a store aisle. Nelson called 911

and followed Bey down the aisles toward a commercial

lumber entrance/exit area.

The initial 911 call from Lowe’s was received by

Bedford Heights Police Department dispatchers at 9:27

a.m. Bedford Heights Police Officers Honsaker and

4

Ellis responded to the dispatch call. Dispatch informed

the Officers that Bey was out of control and damaging

property at the Lowe’s. As Officer Honsaker entered the

Lowe’s parking lot, he received different descriptions of

the clothing worn by Bey. The various descriptions were

the result of Bey changing his clothing in an attempt to

avoid identification.

Officer Honsaker spoke with a Lowe’s employee in the

parking lot who informed him that Bey had left in a blue

or black Mercury. Officer Honsaker saw a dark colored

Mercury matching the employee’s description leaving the

parking lot and followed it. Officer Honsaker stopped the

suspect vehicle. Officer Ellis was also on scene to assist

Officer Honsaker. Officer Chow was also present at the

scene of the arrest, but did not actively participate in the

arrest.

Officers Ellis and Honsaker approached Petitioner’s

vehicle from the passenger side. Officer Honsaker

observed Bey in the front passenger seat and his clothing

matched the last description received. Bey was slouched

down in the passenger seat and Petitioner was in the

driver’s seat.

Initially, Bey was evasive and told Officer Honsaker

that he should be looking for a male in a red shirt. Officer

Honsaker explained to Bey that he was informed the male

suspect from Lowe’s removed a red shirt and was now

wearing a white tank top matching what Bey was wearing.

Officer Ellis then asked Bey to step out of the vehicle and

Bey complied.

5

Bey was patted down, handcuffed, and detained.

During the pat-down, Officers Honsaker and Ellis

discovered miscellaneous pills in a container. Bey told

Officer Ellis that the pills were to help him sleep. The

pills were then placed back in Bey’s pocket. Officer Ellis

then approached Plaintiff and asked for Bey’s address and

social security number. Plaintiff provided the requested

information and told Officer Ellis that Bey was bipolar.

Officer Ellis asked Plaintiff what kind of medication Bey

was on. According to Plaintiff she informed Officer Ellis

that Bey was on Seroquel. Plaintiff also informed Officer

Ellis that Bey had not been taking his medication. Plaintiff

then returned to the Lowe’s parking lot while the Officers

continued their investigation.

While Plaintiff waited in her car in the Lowe’s parking

lot, Bey was detained in the back of Officer Honsaker’s

cruiser. Officer Honsaker testified that, while waiting in

the Lowe’s parking lot, Bey was talking nervously and

non-stop. At one point, an unknown individual approached

the cruiser and asked if the individual the Officers were

looking for had a gun. Bey swore at the individual and

told him to leave.

Bey indicated to Officer Honsaker that he was

agitated by Plaintiff’s presence in the parking lot. As a

result, Officer Honsaker approached Plaintiff’s vehicle

and asked that she leave the parking lot. According to

Plaintiff, she informed Officer Honsaker that Bey was

bipolar and had not been taking his medication. Plaintiff

then left the parking lot.

A fter the investigation was concluded, Officer

Honsaker transported Bey to the Bedford Heights jail.

6

Officer Honsaker testified that, while in the cruiser,

Bey would ramble and talk about random topics such

as inventing a kind of marijuana, his father being a son

of the devil, being famous on the internet, black people

fooling white people by placing the number 1 in front

of everything, and being a millionaire. The actions of

Bey did not indicate to Officer Honsaker that Bey was

suffering from a psychiatric issue and Bey’s rambling did

not indicate to Officer Honsaker that he posed a danger

to himself or others.

Rather, Bey’s agitation and rambling were common

occurrences due to the anxiety caused by the arrest and

did not demonstrate to any Officer that Bey was suffering

from a medical emergency. Moreover, Bey swearing at an

individual who asked an Officer whether Bey had a firearm

was not surprising under the circumstances and did not

suggest that Bey was suffering from a mental health

emergency. Indeed, Bey’s attempts to disguise himself

and evade police prior to his arrest further indicated

that Bey acting coherently and was not suffering from a

psychotic break.

D.

Bey’s detention at Bedford Heights Jail.

Correctional Officers Lee and Hill received Bey at the

jail. Officer Hill described Bey as agitated with Officer

Honsaker due to his arrest. Officer Honsaker told Officer

Chow – who had overheard Bey talking disjointedly while

walking into the jail – that Bey had been rambling in the

cruiser. Officer Honsaker also told Officer Hill that Bey

had been rambling and talking nonsense in the back of

the cruiser.

7

Officer Hill decided to delay Bey’s booking and

screening due to his agitated state and because only two

female correctional officers were available to book Bey.

As a result, Bey was placed in a holding cell until he

calmed down. The miscellaneous pills were brought to the

booking area and held with Bey’s property until a nurse

was available to identify the pills and verify a prescription

for the pills per jail protocol.

There were two nurses that worked at the Bedford

Heights Jail. On the day Bey was arrested, a nurse was

scheduled to start her shift at the jail at approximately

6:30 p.m. In addition to identifying the pills and verifying

a prescription for the pills, the nurse would provide Bey

with further medical evaluation.

Once in the holding cell, Bey’s cuffs were removed

and so was his belt. Officer Hill stated that when asked

to take off his belt and shoes, Bey acted like he was

performing a striptease. Officer Hill asked Bey to stop

and he complied. Officer Hill did not find Bey’s behavior

abnormal or unusual in a jail setting. While in the holding

cell, Bey sat and talked to himself; flirted with the female

correctional officers; talked about a $1 million song or

contract he was involved in; was singing and rapping,

and kicked the cell door a few times. Officer Hill did not

consider Bey’s conduct to be a behavioral problem which

was indicative of a mental health problem.

Officer Lee did not witness Bey talking incoherently

or rambling. Officer Lee did hear Bey kick his cell door.

When asked to stop kicking the door, Bey would comply.

Officer Lee was aware that Bey had miscellaneous pills

on his person when he came into the jail. Officer Lee did

8

not ask Bey about the pills as the nurse would identify the

pills were and would verify a prescription.

At one point, Bey began kicking his cell door and

banging a cup on the wall because he wanted to use the

restroom. Because there were two female correctional

officers on duty, Officer Honsaker was contacted to

assist by bringing Bey to the restroom. Assistant Chief

Leonardi, Officer Honsaker, and Officer Chow brought

Bey to the restroom. Bey explained that he was upset

because he had requested to use the restroom thirty

minutes before, but did not receive a response. Bey was

also agitated because Officer Honsaker was watching

him while using the bathroom. In response, Bey used his

hand to shake his penis and asked Officer Honsaker if he

would like to hold it for him. Bey then finished using the

restroom and was escorted back to the holding cell. Bey at

this point was no longer agitated and thanked the Officers

for allowing him to use the restroom.

At approximately 3:00 p.m., Correctional Officers

Sindone and Mudra began their shift and relieved Officers

Lee and Hill. From her station in the control room, Officer

Sindone could hear Bey rambling and talking about

wanting to eat, using the bathroom, and wanting to go

home. However, Officer Sindone observed that after a

period of time Bey calmed down and was quiet in his cell.

Bey was then served food. Officer Sindone recalls that

Bey used his hands to eat the food, but believes this was

because they did not provide him with utensils. Officer

Sindone did not consider Bey’s actions as unusual or a sign

that he was suffering from a medical emergency.

9

Officer Mudra recalls hearing Bey sing while in the

holding cell and saw him doing push-ups. Officer Mudra

did not find Bey’s behavior to be unusual. Officer Mudra

informed Bey that they would be getting him booked and

processed shortly. Bey was quiet and calm in the holding

cell.

At around 3:30 p.m., Officer Mudra removed Bey from

the holding cell and proceeded to book and process Bey.

The booking process included the completion of Bey’s

initial medical screening. Bey responded “no” to inquiries

regarding whether he had seen a doctor for any psychiatric

issues or was taking medication for a psychiatric condition.

Throughout the booking process, Bey was compliant and

cooperative. After booking was complete, Officer Mudra

returned Bey to the holding cell.

E. Bey’s assault of Officers.

At around 6:30 p.m., Officer Mudra asked Bey if he

would like to make a phone call because Officer Mudra

wanted to see Bey bonded out. Bey replied that he would

like to make the phone call. Officer Mudra took Bey out of

the holding cell and walked with him approximately 20 to

25 feet to the booking desk where a phone was available.

Bey was not handcuffed as Officer Mudra did not perceive

him as a threat. Bey asked where his cellphone was and

Officer Mudra told him he did not know. According to

Officer Mudra, Bey became agitated and decided that he

wanted to go back to his cell rather than make a phone

call. As they walked back to the holding cell, Bey stopped,

looked at Officer Mudra and told him he could break a

man’s neck seventeen different ways. Officer Mudra told

Bey that he didn’t need to make that statement and he was

10

going to try to find the cellphone. They stopped walking

and Bey without warning suddenly grabbed Officer Mudra

by the neck and slammed him to the floor. Bey began

choking Officer Mudra while on the ground.

Officer Sindone jumped on Bey’s back in an attempt

to assist Officer Mudra. Bey proceeded to pin Officer

Sindone on the ground and began choking her in addition

to choking Officer Mudra.

Assistant Chief Leonardi as well as other police

officers responded and entered the jail area. Assistant

Chief Leonardi and the other officers forcibly removed

Bey from Officers Mudra and Sindone. Bey continued to

resist the Officers’ attempts to gain control and subdue

him. Ultimately, Bey was handcuffed with his hands in

front of his body and placed in a restraint chair.

Bey did not stop resisting until he was placed in the

restraint chair. When placed in the restraint chair, Bey’s

body remained in an upright position and the handcuffs

were removed. Assistant Chief Leonardi detected a

problem and asked an Officer to check Bey’s pulse. The

Officer reported a weak pulse. Assistant Chief Leonardi

then immediately ordered that the Officers take Bey

out of the restraint chair and he was placed on the floor

in a prone position. Assistant Chief Leonardi had an

emergency squad called for medical assistance. An Officer

immediately began attempts to resuscitate Bey and an

AED device was used. Emergency responders arrived and

continued providing resuscitation efforts. Bey was taken

to the hospital and later pronounced dead.

11

An autopsy of Bey was performed. The coroner’s

opinion was that Bey died as a result of a sudden cardiac

event during a physical altercation in association with

bipolar disease. The coroner found that Bey’s weight and

coronary artery anatomy placed him at increased risk of

such a cardiac event during the assault.

II. REasons for denying this Petition

A. A r r i n g t on -Bey h a s not a r tic u lat e d a

“c omp elli ng ” r e a s on for t h is Cou r t’s

discretionary review as to Respondent City of

Bedford Heights.

Petitioner’s claims of “deep conflict” and “doctrinal

chaos” are illusory. This case involves a narrow failure

to train claim against a municipality in which the

Sixth Circuit concluded there is no clearly established

law that required the officers to take a bipolar inmate

immediately to the hospital. The present case did not

involve a direct municipal act by the City, but rather the

Petitioner is trying to impose liability on the City for the

acts of its employees. See Sixth Cir. Op. at Pet. App. 11-12

(explaining the difference between types of Monell claims

when an injury arises directly from a municipal act, and

those that arise from an employee’s unconstitutional act).

A municipality cannot be held liable under § 1983 on a

respondeat superior theory. Monell v. Dep’t of Soc. Servs.

of City of New York, 436 U.S. 658, 691 (1978). This Court

has expressly held that when a municipality’s alleged

responsibility for a constitutional violation stems from

an employee’s unconstitutional act, the city’s failure to

prevent the harm must be shown to be deliberate under

12

“rigorous requirements of culpability and causation.” Bd.

of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397,

415 (1997); City of Canton v. Harris, 489 U.S. 378, 388.

The natural result is that the violated right in deliberateindifference/failure to train cases thus must be clearly

established because a municipality cannot be deliberately

indifferent to a constitutional duty unless that duty is

clear. The Sixth Circuit merely followed established law.

The circuits that have touched on this issue routinely

observe – and have done so for decades – that if there

is not some clear notice to the city of a constitutional

violation that a failure to train theory would simply impose

impermissible respondeat superior liability on a city.

See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87,

94 n.10 (1st Cir. 1994); Townes v. City of New York, 176

F.3d 138, 143–44 (2d Cir. 1999); Hagans v. Franklin Cty.

Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012); Robles

v. City of Fort Wayne, 113 F.3d 732, 735 (7th Cir. 1997);

Young v. City of Augusta, 59 F.3d 1160, 1172 (11th Cir.

1995).

1.

The Sixth Circuit’s unanimous opinion is

consistent with Supreme Court precedent.

Petitioner suggests that the Sixth Circuit’s decision is

in conflict with the established law that qualified immunity

does not apply to a municipality, citing to Owen v. City of

Indep., 445 U.S. 622, 629, 638 (1980). (Pet. at 17-22.) The

Sixth Circuit did not hold that a municipality could raise

qualified immunity as a defense to a Monell claim. There

simply is no controversy that this Court and all circuits

have long held that qualified immunity is not available

to municipalities. See, e.g., Leatherman v. Tarrant Co.

13

Narcotics Intelligence and Coordination Unit, 507 U.S.

163, 166 (1993) (“Municipalities do not enjoy immunity

from suit—either absolute or qualified—under § 1983.”).

Petitioner tries to create conflict with this Court’s prior

precedent where no legitimate conflict exists.

There is no conflict with this Court’s decisions in

Owen or Canton. Petitioner does not cite to Bd. of Cty.

Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 406 (1997)

that largely corrects Petitioner’s mistaken position and

that reaffirms Canton’s requirement that a municipality’s

deliberate indifference must in fact be deliberate.

As the Sixth Circuit recognized, this Court held in

Brown where a plaintiff claims that the municipality has

not directly inflicted an injury – like here – but nonetheless

has caused an employee to do so, rigorous standards of

culpability and causation must be applied to ensure that

the municipality is not held liable solely for the actions of

its employee. Sixth Cir. Op at Pet. App. 12, citing Bd. of

Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 406

(1997). In a deliberate-indifference case, the claimant

must show not only that an employee’s act caused a

constitutional tort, but also that the city’s failure to train

its employees caused the employee’s violation and that the

city culpably declined to train its “employees to handle

recurring situations presenting an obvious potential for

such a violation.” Brown, 520 U.S. at 409; see Szabla, 486

F.3d at 393.

“[O]bvious potential for such a violation” has two

elements: It must be obvious that the failure to train will

lead to certain conduct, and it must be obvious (i.e., clearly

established) that the conduct will violate constitutional

14

rights. As Judge Colloton pointed out in his opinion for the

en banc Eighth Circuit in Szabla, requiring that the right

be clearly established does not give qualified immunity

to municipalities; it simply follows City of Canton’s and

Brown’s demand that deliberate indifference in fact be

deliberate. Szabla, 486 F.3d at 394.

The Sixth Circuit simply relied on this Court’s

Brown and City of Canton precedent to conclude that a

“municipality cannot deliberately shirk a constitutional

duty unless that duty is clear.” (Sixth Cir. Op. at Pet. App.

12.) Here, the Sixth Circuit determined that the law was

not clearly established that officers must take delusional

arrestees like Bey to a hospital rather than a jail, or to

do anything more than they did: keep him in seclusion for

everyone’s safety, waited until he was calm to feed him

and book him, ask him about any psychiatric diagnoses

during the medial screening, and after eight hours of

detention uncuffed him and released him from his cell to

make a call to be released on bail.

Again, in a deliberate indifference claim such as this,

established law requires that it must be obvious to the

municipality that the failure to train will lead to certain

conduct, and it must be obvious (i.e., clearly established)

that the conduct will violate constitutional rights.

The Petitioner obscures the distinction between

Monell cases that “present no difficult questions of

fault and those that do.” Brown, 520 U.S. 397, 406

(1997) (Examples of those are Pembaur involving the

decision of the county prosecutor; Owen, where there

was formal decision by a legislative body (discharged an

employee without a hearing). Because fault and causation

15

were obvious in these types of cases, “proof that the

municipality’s decision was unconstitutional would suffice

to establish that the municipality itself was liable for the

plaintiff’s constitutional injury.” Brown, 520 U.S. 397,

406 (1997).

But, Municipalities are not vicariously liable in

§ 1983 actions merely because they employ someone

who has committed a constitutional violation. Monell,

436 U.S. at 694. They must pay for violations only if the

injury is caused by a municipal custom or policy, or if the

city’s failure to train employees amounts to deliberate

indifference to constitutional rights. See City of Canton,

489 U.S. at 388. This is well established law. The City

could not be deliberately indifferent in this case because

a constitutional duty was not clear, thereby precluding

knowledge or notice of any alleged inadequate training.

Petitioner asserts that qualified immunity is not a

defense to a Monell claim and deliberate indifference is

a Monell claim. Therefore, the Sixth Circuit erred. But,

Petitioner obscures the vital difference between Monell

claims.

Where the municipality has not directly inflicted

an injury, however, “rigorous standards of

culpability and causation must be applied,”

[Bd. of Cty. Comm’rs of Bryan Cty. V. Brown,

520 U.S. 397, 405], and a showing of deliberate

indifference is required. The absence of

clearly established constitutional rights-what

Justice O’Connor called “clear constitutional

guideposts,” [City of Canton v. Harris, 489 U.S.

378, 397 (1989)] – undermines the assertion that

16

a municipality deliberately ignored an obvious

need for additional safeguards to augment

its facially constitutional policy. This is not

an application of qualified immunity for

liability flowing from an unconstitutional

policy. Rather, the lack of clarity in the law

precludes a finding that the municipality had

an unconstitutional policy at all, because its

policymakers cannot properly be said to have

exhibited a policy of deliberate indifference

to constitutional rights that were not clearly

established.

Szabla v. City of Brooklyn Park, Minnesota, 486 F.3d 385,

394 (8th Cir. 2007), emphasis added.

There is no conflict with this Court’s jurisprudence.

The Si xth Circuit merely applied the deliberate

indifference standard in this particular context. Despite

Petitioner’s claim, the Sixth Circuit did not create a novel

exception to Canton v. Harris, rather the Sixth Circuit

merely applied the established law of Brown and Harris.

2.

Petitioner’s circuit conflict is illusory.

Petitioner relies on Fairley v. Luman, 281 F.3d 913,

917 (9 th Cir. 2002) for the claim of conflict. In Fairley, the

city’s liability was predicated upon its own custom that

allowed individuals to be detained on the wrong warrant;

in other words, it was a direct act of the city. This 15-yearold case does not demonstrate a legitimate or significant

conflict. Petitioner’s parenthetical citation states “If a

plaintiff establishes he suffered a constitutional injury by

the City, the fact that individual officers are exonerated

17

is immaterial to liability under § 1983.” (Pet. at 15, citing

Fairley at 917.) Petitioner takes this passage out of

context. In Fairley, the plaintiff was arrested and held

for 12 days on outstanding warrants issued for the arrest

of his twin brother. The plaintiff sued the detaining and

booking officers for use of excessive force and arrest

without probable cause. The plaintiff alleged a claim

pursuant to Monell against the city for violation of civil

rights based upon a policy, practice or custom of the

police department allowing him to be detained for 12

days. A jury exonerated the police officers, but found the

City liable. In affirming, the Ninth Circuit explained that

the plaintiff’s loss of liberty was “not suffered as a result

of actions of the individual officers, but as a result of the

collective inaction of the Long Beach Police Department.”

(Id. at p. 917.) Unlike Fairley, the present case does not

involve direct injury by a municipal act. Rather, this case

involves a claim of deliberate municipal indifference.

Similarly, Chew v. Gates, 27 F.3d 1432, 1438 (9th Cir.) is

distinguishable because the claim of liability against the

city was another direct act of the city, predicated on its

own policy that authorized the seizure of all concealed

suspects—resistant or nonresistant, armed or unarmed,

violent or nonviolent—by dogs trained to bite hard and

hold. There is no real conflict.

Likewise, the 15-year-old case of Medina v. County

of Denver, 960 F.2d 1493, 1499-1500 (10 th Cir. 1992) held

simply that the “appellant failed to produce any evidence

that Denver maintained a policy or course of conduct

authorizing or condoning reckless, high speed chases

that was deliberately indifferent to the rights of innocent

bystanders.” Id. at 1494. The Medina court found that the

city could not be held liable because it had no evidence

18

to establish a failure to train claim, it did not rely on the

officer’s qualified immunity to determine the city was not

liable. Id. at 1500-01. Petitioner’s reliance on dicta does

not create a conflict.

The Petitioner also claims that there is an intra-circuit

conflict in the Sixth Circuit. The Sixth Circuit expressly

disagreed. The Petitioner’s request for en banc review

in the Sixth Circuit was circulated to the full court and

“no judge [had] requested a vote on the suggestion for

rehearing en banc.” (6th Cir. Order of July 5, 2017.) The

court determined that this case was not of “exceptional

importance” or that there was “necessity to … maintain

uniformity of the court’s decisions” under FRAP 35(a)

(1-2). Id.

Nevertheless, the Petitioner attempts to cobble

together dicta to support an argument the Sixth Circuit

soundly rejected in its denial of the en banc petition. She

claims that cases like Gray v. City of Detroit, 399 F.3d

612, 617 (6th Cir. 2005) support her position, but courts

throughout the Sixth Circuit recognize these non-essential

incidental statements found in Gray do not create a

conflict. See e.g., Modd v. Cnty. of Ottawa, No. 1:10–CV–

337, 2012 WL 5398797, at *19 (W.D.Mich. Aug. 24, 2012)

(noting that the “statements about municipal liability”

in Gray are “clearly dictum ” and that the Sixth Circuit

absolves municipal employers of liability in failure-totrain cases, where its officers have been granted qualified

immunity). Similarly, Petitioner’s citation to Scott v. Clay

County, 205 F.3d 867 (6th Cir. 2000) only demonstrates

that when the court found no constitutional violation that

a claim against the county could not be maintained under

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)(per

curiam). There is nothing controversial about this holding.

19

Finally, to try to suggest “doctrinal chaos,” the

Petitioner also relies on the 23-year-old case of Fagan v.

City of Vineland, 22 F.3d 1283, 1292 (3rd Cir. 1994) for the

proposition that even when an individual does not commit

a constitutional violation, the entity may still be liable. The

Third Circuit itself subsequently limited this outlier case

to insignificance:

In Fagan, we observed that a municipality could

remain liable, even though its employees are not,

where the City’s action itself is independently

alleged as a violation and the officer is merely

the conduit for causing constitutional harm.

We were concerned in Fagan that, where the

standard for liability is whether state action

“shocks the conscience,” a city could escape

liability for deliberately malicious conduct by

carrying out its misdeeds through officers

who do not recognize that their orders are

unconstitutional and whose actions therefore

do not shock the conscience. Here, however,

like Heller and unlike Fagan, the question is

whether the City is liable for causing its officers

to commit constitutional violations, albeit no

one contends that the City directly ordered the

constitutional violations. Therefore, once the

jury found that [the officers] did not cause any

constitutional harm, it no longer makes sense

to ask whether the City caused them to do it.

Additionally, recognizing that Heller had

addressed a closely related issue, we carefully

confined Fagan to its facts: a substantive due

process claim resulting from a police pursuit.

By contrast, both this case and Heller involve

20

primarily a Fourth Amendment excessive

force claim.

Grazier ex rel. White v. City of Philadelphia, 328 F.3d

120, 124 (3d Cir.2003), emphasis added (internal citations

omitted); see also Mark v. Borough of Hatboro, 51 F.3d

1137, 1153 n. 13 (3d Cir.1995). Fagan hardly constitutes a

conflict and certainly not a substantial conflict. See also

Thomas v. City of Philadelphia, 804 A.2d 97, 111 (Pa.

Comm.Ct.2002) (noting that Fagan “has not stood the test

of time even in the Third Circuit.”). Fagan is an outlier

and at best (and not even that) an internal circuit issue

that is distinguishable on the facts.

B. Petitioner has not articulated a “compelling”

reason for this Court’s review and merely seeks

purported error correction as to the individual

officers.

“A petition for a writ of certiorari will be granted only

for compelling reasons.” Sup. Ct. R. 10. This case poses

no “compelling reason” for review. Petitioner merely asks

this Court to reapply the long-standing qualified immunity

analysis that this Court recently reaffirmed in White v.

Pauly, 137 S.Ct. 548, 552 (2017). This Court is not an error

correcting court. That is all that Petitioner seeks. Further,

the unanimous Sixth Circuit did not commit error.

Petitioner is naturally unhappy with the unfavorable

ruling below. But that displeasure does not transform

this case into a compelling case for review. See N.L.R.B

v. Pittsburgh S.S. Co., 340 U.S. 498, 502 (1951)(explaining

that the Supreme Court “is not the place to review a

conflict of evidence nor to reverse a Court of Appeals

21

because were we in its place we would find the record

tilting one way rather than the other, though fair-minded

judges could find it tilting either way.”). The unanimous

panel of the Sixth Circuit properly authorized summary

judgment in favor of the individual Respondents based

on qualified immunity. (Sixth Cir. Op. at Pet. App. 7-11.)

Failing to demonstrate a convincing legal reason for this

Court to grant certiorari, Petitioner argues that the three

Sixth Circuit panel members simply misapplied the law

to the facts. This claim is insufficient to warrant this

Court’s review.

In § 1983 constitutional torts, qualified immunity

prevents government officials from being held liable if (1)

the officers did not violate any constitutional guarantees

or (2) the guarantee, even if violated, was not “clearly

established” at the time of the alleged misconduct. Pearson

v. Callahan, 555 U.S. 223, 232 (2009). The Sixth Circuit

held that the second prong of qualified immunity resolves

this case. (Sixth Cir. Op. at Pet. App. 7.) Because no case

clearly established the unlawfulness of the decisions made

during Omar’s arrest and detention, the officers involved

were entitled to qualified immunity.

The Petitioner all but ignores this Court’s decision in

White v. Pauly, 137 S.Ct. 548 (2017). The Sixth Circuit

noted that the district court did not have the benefit of

Pauly, but recognized that it must follow the lead of the

Pauly decision. The Sixth Circuit recognized this Court’s

dictate that a “plaintiff must identify a case with a similar

fact pattern that would have given ‘fair and clear warning

to officers’ about what the law requires.” (Sixth Cir. Op.

at Pet. App. 8.) Nevertheless, Pauly merely re-affirmed

established law. See e.g., Ashcroft v. al-Kidd, 563 U.S.

22

731, 742 (2011); see further e.g., Anderson v. Creighton,

483 U.S. 635, 640 (1987).

The Sixth Circuit explained that Petitioner had “not

pointed to, and we have not found, any case like this one –

a case showing that the officers at the scene immediately

needed to seek medical treatment or that the jailers had

to do the same once he arrived at the prison.” Id. The

Sixth Circuit analyzed each of Petitioner’s cases at that

level and concluded that “we begin with, and could end

with, the reality that [Petitioner] points to no Supreme

Court or Sixth Circuit case that requires officers to take

a delusional arrestee like Omar to a hospital rather than

a jail. Each of Arrington-Bey’s cases fails to address this

point and not one involves remotely comparable facts.” Id.

In her Petition before this Court, Petitioner abandons

all of the cases that she previously said demonstrated

clearly established law, which were soundly rejected by

the Sixth Circuit. Petitioner digs into a new batch of cases

that all suffer from the same general lack of specificity

that Pauly warned against. Petitioner wants this Court

to reapply the facts to the established1 (and recently reaffirmed) law governing the specificity required under the

clearly established prong of qualified immunity. Again,

as the law is established in Pauly, and Petitioner merely

seeks reconsideration in this Court. This Court recently

reminded lower courts that a plaintiff must identify a case

with a similar fact pattern that would have given “fair and

1. Supreme Court law on the point of specificity is long

established. “[C]learly established law” may not be defined at such

“a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011). It must be more “particularized” than that. Anderson v.

Creighton, 483 U.S. 635, 640 (1987).

23

clear warning to officers” about what the law requires. Id.

(quotation omitted). Immunity protects “all but the plainly

incompetent or those who knowingly violate the law.” Id.

at 551 (quotation omitted).

Petitioner’s cases are inapposite and – unlike

the present case – represent blatant examples where

physicians/nurses or jailers disregard heart attacks,

gunshot wounds, severely broken bones, profound

heatstroke, and similar situations. (See generally

Pet. at 23-24.) Petitioner’s cases are not adequately

particularized and, candidly, are wholly inapplicable. See

Pet. at 24, citing: Terrance v. Northville Reg’l Psychiatric

Hosp., 286 F.3d 834, 844-45 (6th Cir. 2002)(physician –

not an officer – who acutely understood the health risks

posed to a diabetic prisoner who died due to heat stroke);

Dominguez v. Correctional Medical Services, 555 F.3d

543, 551 (6th Cir. 2009)(nurse – not an officer – specifically

disregarded the guard’s report that the prisoner was

suffering from heat exhaustion); Cain v. Irvin, 286 Fed.

Appx. 920, 926, 2008 WL 2776863 (6th Cir. 2008)(minor

nature of the plaintiff’s injury required that the court

find that the plaintiff could not satisfy the objective

prong of deliberate indifference); Darrah v. Krisher, 865

F.3d 361, 368-69 (6th Cir. 2017)(aside from being decided

years after the present incident making it of no use in a

qualified immunity analysis, physician and nurses failed to

provide treatment over a three-month period); Cooper v.

Dyke, 814 F.2d 941, 945-46 (4th Cir. 1987)(jailers ignored

an inmate’s repeated pleas to go to the hospital after he

had been shot in the chest and had a collapsed lung, a

perforated stomach, a lacerated liver and diaphragm);

Aldridge v. Montgomery, 753 F.2d 970, 972-73 (11th Cir.

1985)(officers inflicted a cut above eye that profusely bled

24

yet they left him in the cell for hours while blood pooled in

his cell floor and even after he received stiches at the ER

officers refused to provide follow up treatment); Brown v.

Hughes, 894 F.2d 1533, 1538-39 (11th Cir. 1990)(officers

disregarded a severely broken foot and one officer refused

to honor promise made to inmate that he would receive

treatment); McElligott v. Foley, 182 F.3d 1248 (11th Cir.

1999)(inmate suffered and complained of excruciating pain

over months as a result of cancer, physical deterioration,

weight loss over a period of months that the risk of harm

was obvious).

Setting aside that Petitioner merely wants this Court

to re-review the facts and apply the Pauly decision to

reach a result they desire, there simply is no clearly

established law, in the words of the Sixth Circuit, “here

or anywhere else” that requires an arresting officer to

drive Omar to the hospital rather than the jail under these

circumstances. With regard to the jailers, “no case alerted

the officers that mental instability of this sort required

immediate medical attention.” Significantly, as the Sixth

Circuit recognized “there was nothing to suggest he was

at risk of the heart attack that ended up killing him. And

indeed Arrington-Bey does not identify anything that

suggests such a risk.” The Sixth Circuit ultimately held

that “these distinctions add up to an insurmountable

barrier. Even if the jail officers knew that Omar was bipolar and delusional, no clearly established law required

them to do more then what they did: they kept him in

seclusion for everybody’s safety, waited until he was calm

to feed him and book him, asked him about any psychiatric

diagnosis during the medical screening, and after eight

hours of detention uncuffed him and released him from

his cell to make a call to be released on bail.”

25

III. CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

James A. Climer

Frank H. Scialdone*

John D. Pinzone

Mazanec, Raskin & Ryder Co., L.P.A.

100 Franklin’s Row

34305 Solon Road

Cleveland, OH 44139

(440) 248-7906

fscialdone@mrrlaw.com

Counsel for Respondents