Louis Gradisher v. City of Akron , 2015 FED App. 0160P ( 2015 )


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    Pursuant to Sixth Circuit I.O.P. 32.1(b)
    File Name: 15a0160p.06
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    _________________
    LOUIS DANA GRADISHER,                                    ┐
    Plaintiff-Appellant,   │
    │
    │       No. 14-3973
    v.                                                │
    >
    │
    CITY OF AKRON, et al.,                                   │
    Defendants-Appellees.     │
    ┘
    Appeal from the United States District Court
    for the Northern District of Ohio at Akron.
    No. 5:12-cv-02362—Sara E. Lioi, District Judge.
    Argued: June 10, 2015
    Decided and Filed: July 24, 2015
    Before: COLE, Chief Judge; GILMAN and KETHLEDGE, Circuit Judges.
    _________________
    COUNSEL
    ARGUED: David A. Hamamey II, HAMAMEY LAW FIRM LLC, Middleburg Heights, Ohio,
    for Appellant. John Christopher Reece, CITY OF AKRON, Akron, Ohio, for Appellees. ON
    BRIEF: David A. Hamamey II, HAMAMEY LAW FIRM LLC, Middleburg Heights, Ohio, for
    Appellant. John Christopher Reece, Michael J. Defibaugh, CITY OF AKRON, Akron, Ohio, for
    Appellees.
    _________________
    OPINION
    _________________
    COLE, Chief Judge. One afternoon, plaintiff Louis Dana Gradisher consumed multiple
    alcoholic drinks, then made several erratic phone calls to 911 complaining about someone with a
    gun. When officers from the City of Akron Police Department arrived at his residence and
    Gradisher locked his door and retreated upon seeing them, they feared that someone inside might
    1
    No. 14-3973                   Gradisher v. City of Akron, et al.                Page 2
    need help. The officers thereupon broke down the door and entered the house. They found
    Gradisher hiding under a sheet in his dark basement. What happened next is subject to debate,
    but after a few seconds, one of the officers used a taser on Gradisher because he allegedly
    resisted arrest.
    Gradisher was later found guilty of improperly using the 911 system. He filed an action
    against several police officers and the City of Akron, asserting causes of action under 42 U.S.C.
    § 1983 for constitutional violations due to excessive force, warrantless entry, and malicious
    prosecution, as well as several common-law tort claims. After the parties filed cross-motions for
    summary judgment, the district court ruled in the defendants’ favor on all claims. At issue is
    whether the district court properly did so. For the reasons below, we affirm in part and reverse in
    part.
    I.
    On September 2, 2011, Louis Gradisher, a white male, met a friend at a bar, Georgie’s,
    where he had three or four beers and a shot of whiskey. While sitting at the bar, Gradisher
    noticed the outline of a gun in the pocket of a black man sitting to his left. Gradisher commented
    about the gun to the man, which triggered a heated exchange. Gradisher then left the bar and
    went to his residence about a quarter-mile away at 402 Kline Avenue in Akron, Ohio. Once
    there, he drank another three to five beers.
    Gradisher then decided to call 911 from his cell phone to report the man with the gun at
    Georgie’s because Gradisher was upset that the man was “hard and nasty” with him. Gradisher
    made a total of four calls to 911 that day. On the first call, he refused to give the 911 operator
    his name and hung up abruptly. The operator called him back. On the return call, Gradisher and
    the operator got into a heated exchange, causing the operator to hang up, which prompted
    Gradisher to call 911 two more times, each time using various obscenities. Gradisher later
    described his conduct on the call as a “[t]otal” and “utter embarrassment.” He thought the
    operator was “smart-mouth[ing]” him, hence the return calls and profanity that he later described
    as “[i]nexcusable.” Gradisher admitted that he did not call to request emergency services and
    acknowledged that he “hurt [the operator’s] feelings.” He blamed his calls on the fact that he
    No. 14-3973                  Gradisher v. City of Akron, et al.               Page 3
    had a “buzz on” and was angry over a breakup with his girlfriend. He never thought that the
    police might be dispatched in response to his calls.
    Because of Gradisher’s calls, Officers James Craft and Matthew Hackathorn were
    dispatched to Georgie’s. There, they spoke with the bartender, who told them that a black male
    and a white male were arguing earlier. She told Hackathorn that the white male said that “he had
    a gun out in his van for [the black male],” and the white male “wanted him to come out to the
    van.” The bartender described the van as a “white work van” and the white male as in his 40s,
    stocky, and wearing a work shirt.
    At some point, 911 dispatchers deduced that the first 911 call regarding a man with a gun
    at Georgie’s was connected to the “multiple unnecessary and vulgar calls to 911” from
    Gradisher’s residence. Officers were thus dispatched to “respond[] to 402 Kline based on
    multiple 911 calls about a man with a gun.”
    Officers Jeffrey Smith and James Leadbetter arrived at Gradisher’s residence first, and
    Officers Hackathorn and Craft arrived later after leaving Georgie’s. En route, the officers
    checked for any outstanding warrants linked to the address and found a failure-to-appear warrant
    concerning Gradisher. The physical description of the wanted individual on the warrant matched
    the generic description of the white male given by the bartender. In addition, the officers saw a
    white work truck in the driveway, and when they ran a check on the license plate, the results
    matched the bartender’s description of the white male. At the time, the officers were confused
    about who had the gun since the 911 caller said that it was a black male, but the bartender said
    that it was a white male.
    While the officers were sent to check on the apparent misuse of the 911 system, given the
    confusion, the officers wanted “to see if there was a problem or [if] someone needed help at 402
    Kline Avenue.” Hackathorn testified,
    When someone calls [911] numerous times and they don’t give a reason other
    than they want to be confrontational on the phone and they’re . . . very rude and
    erratic on the phone[,] [c]ould there be something going on where he might need
    help and he may not realize it? He may be going through an episode, could be a
    reaction to something. . . . [M]y 13 years of experience on my job is when
    someone calls [911] numerous times usually there’s a reason, they usually need
    No. 14-3973                    Gradisher v. City of Akron, et al.                  Page 4
    some type of help or they’re going through some type of crisis. So through my
    training and experience we have to make sure someone is okay . . . .
    Smith testified that “with [the 911 caller’s] erratic and irrational behavior, and the possibility of a
    gun, we had a duty to check his welfare.”
    Hackathorn approached the residence, knocked on the front door, and announced, “Akron
    Police, please come to the door.” He heard someone inside lock the dead bolt. Leadbetter, who
    went around to the house’s rear, saw a man exit the back door. Leadbetter yelled, “Hey, police,”
    but the man retreated and slammed the door. Leadbetter called after the man and said that they
    just wanted to speak with him, but did not know at the time that the man was Gradisher.
    As this transpired, Sergeant Vince Yurick, a police supervisor, was listening to radio
    traffic from the dispatches to Georgie’s and 402 Kline Avenue. Yurick’s “understanding was
    that there was a guy with a gun at Georgie’s, and somehow this fellow left and was calling now
    from a different address of 402 Kline, and there were numerous calls of 911 being received from
    there. . . . And then the officers . . . find out that . . . there’s a person from that address calling
    911, it’s associated with the gun at Georgie’s, a person comes out the back door and goes back
    in.” Under “all those circumstances,” Yurick concluded that the situation was “very serious and
    dangerous” and “could be bad.” As he later explained,
    [I]n my 17 years of working patrol, [if] we’re getting 911 calls from a house and
    someone won’t communicate with us, but we know someone’s in there, that’s a
    problem for me. I need to make sure that we find out why. Is someone being
    held in there at gunpoint? Has someone been murdered? I mean, that’s just a fact
    of my job.
    In addition, because Yurick knew that someone in the residence had an outstanding warrant, and
    the 911 calls involved a person who allegedly had a gun, his experience led him to conclude that
    there was “an increase in the level of seriousness or dangerousness on this call” and that the
    officers “ha[d] a duty to make sure someone’s not being held at gunpoint or had been murdered
    there.”
    Hackathorn contacted Yurick, discussed the situation with him, and the two decided that
    the officers should conduct a “welfare check” on the residence given Gradisher’s “erratic
    behavior” and many 911 calls. At the front door, Hackathorn announced that the officers “were
    No. 14-3973                    Gradisher v. City of Akron, et al.               Page 5
    going to force the door open to check for anyone injured.” After receiving no response, he tried
    to see if he could reach in some window panels to unlock the door “without busting the door off
    the frame,” but the windows were too high, so Smith kicked the door down. Gradisher never
    responded as the door was forcibly opened.
    After he decided that he was “not going to call [911] again,” Gradisher had gone to
    shower in his basement bathroom when he heard his dog “going crazy jumping on the door.” He
    assumed that somebody was there, but “just continued on with [his] shower.” Gradisher then
    “heard a thunderous bang, bang, bang on [his] front door” and thought that somebody was
    breaking into his house. He testified that “the furthest thing from [his] mind” was that the police
    were at his door because he “felt that [he] had done nothing wrong other than give the
    911 dispatcher a hard time.”
    Gradisher quickly got dressed and, hearing people upstairs, “went to the nearest corner of
    [his] basement and hid behind shelves . . . and threw a sheet over [his] head.” Gradisher claims
    that he feared that a motorcycle gang was breaking into his house because, approximately one
    year earlier, Gradisher had been “[s]everely beaten” by such a gang after he confronted them
    about their throwing a beer box onto his yard. While sitting in a crouched position, he saw light
    from a flashlight through the sheet and heard one of the officers say, “I think he’s here.” Though
    Gradisher later testified that the officers did not announce themselves as police when they
    entered the basement and found him, he also said that he “had a pretty good idea that they were
    the police then.”
    At this point, the parties’ accounts about what happened next diverge.            Gradisher
    described what occurred as follows:
    And then he finds me with the sheet, under the sheet, I’m sitting here like this,
    and then when he -- I saw the flashing lights over the sheet, the sheet illuminate
    up, and that’s when I thought, okay, these are the police. So within a split second
    of that he grabbed the sheet and pulled it off of me and I went just like this
    (indicating), I put my hands up and my legs out, I said, You got me, You got me.
    And at that time he fired the shot into my breast and started delivering the
    electricity. At that same time he started delivering the electricity, they both were
    screaming, Get the fuck down, Get the fuck down. And I remember grunting
    because it contorted me like this (indicating). When he shot me it contorted me
    up tight. And then I said, I can’t move, I’m being electrocuted, I can’t move.
    No. 14-3973                    Gradisher v. City of Akron, et al.                 Page 6
    And they just kept giving me -- the current was nonstop, just kept giving it to me.
    And then I was in the sitting position, I was like -- ([] groaning) and slumped over
    to my right, and then the only thing I remember after that is them taking me up
    out of the basement.
    In other words, Gradisher asserts that he raised his hands immediately and never resisted when
    the officers found him, but without any warning or opportunity to give himself up for
    handcuffing, he was tased. About the officers’ reports that he would not comply with their
    commands to present his hands to be handcuffed, Gradisher stated, “That’s a lie.”
    It is undisputed that Officer Craft actually used the taser on Gradisher. According to
    Craft, when he first saw Gradisher in the basement, Gradisher was “in a crouched or attempting-
    to-be-crouched position.” Gradisher “was in an active position” and “not stationary with both
    knees on the ground,” though Craft then testified that he does not recall “which knee or if his
    knees were touching the ground or not.” Craft thought that Gradisher was attempting to get up
    from the ground. By his account, the officers instructed Gradisher to get on the ground and raise
    his hands, but he did not comply. Because Gradisher’s left arm was reaching towards his
    waistband, Hackathorn grabbed that arm, but Gradisher pulled it away. Meanwhile, Craft tried
    to grab Gradisher’s right arm to be handcuffed, but was unsuccessful. Craft testified that he then
    ordered Gradisher to surrender his arm or Craft would use his taser. Gradisher allegedly did not
    comply and continued to reach towards his waistband.
    Craft claims that he then decided to deploy his taser because Gradisher “was actively up
    and down trying to push away out of the situation, out of the corner he was in,” and “he went
    back down with his hands, his arm, which went where [I] could not see it at his waistline.” Craft
    shot Gradisher in the chest with the taser probes and pulled the taser’s trigger. When Gradisher
    did not react, Craft pulled the trigger a second time, causing Gradisher to wince during a partial
    cycle.    Craft pulled the trigger again for one full cycle.        Although the officers screamed
    commands at Gradisher to give up his arms and stop resisting during the tasing, and he was able
    to hear them, he claims that he could not comply because he was being electrocuted. Craft did
    not think that the taser affected Gradisher much (possibly due to a poor connection) because
    Gradisher allegedly continued to resist, so Craft “decided to move in on him.” He “drive-
    stunned,” i.e., pushed the taser directly against, Gradisher in his arm or side and then
    No. 14-3973                  Gradisher v. City of Akron, et al.                 Page 7
    administered one final drive-stun for a full cycle while punching Gradisher’s right side with his
    arm three to four times. Gradisher claims that he could not move, slumped over to his right side,
    and may have blacked out. Hackathorn and Smith then handcuffed Gradisher and led him
    upstairs. Hackathorn estimates that approximately five seconds elapsed from when he first
    issued Gradisher a command to when Craft began to tase Gradisher.
    During the entire incident, Leadbetter never directly engaged Gradisher, but provided
    cover to the other officers with his gun drawn. The Akron Fire Department EMS eventually
    responded to the scene and removed the taser barbs from Gradisher. Its report did not reflect that
    Gradisher had any other complaints, respiratory distress, or major signs of trauma.
    Craft testified that he decided to use his taser because Gradisher was not obeying the
    officers’ commands and because he believed Gradisher might have had a gun. As he explained,
    [W]e were called out reference [sic] a male with a gun in a bar. We spoke to
    several people in the bar who said [Gradisher], not speaking of him by name, but
    described him and his vehicle, said he had a -- he was in here yelling and ranting
    and raving about a gun and said he had a gun in his van that he was gonna go get
    and then we received calls from him from his house, that van was there. So my
    train of thought here is safety for me and my officers that are with me. I’m not
    assuming he has a gun but I don’t know if he does or not.
    ***
    [H]e was actively coming up and trying to push out of a pile of rubbish and
    whether -- you know, naturally that’s going to include you losing your balance
    and going to the ground where I can’t see your hands. Now, I don’t know if he’s
    gonna pull up with a gun or if he’s going to pull it out of his waist or he’s gonna
    pull it out of the clothes that he was hiding in.
    Sergeant Michael Joyner conducted a review investigation of the use of force on
    Gradisher, which included speaking with both the officers and Gradisher at the scene, as well as
    reviewing information about the taser’s usage. Joyner concluded that the use of force was
    justified.
    Officer Hackathorn signed criminal complaints against Gradisher in the Municipal Court
    of Akron, charging him with resisting arrest in violation of Ohio Revised Code § 2921.33 and
    improper use of the 911 system in violation of Ohio Revised Code § 4931.49(E). Gradisher
    No. 14-3973                    Gradisher v. City of Akron, et al.                 Page 8
    pleaded no contest to, and was found guilty of, improper use of the 911 system; the resisting-
    arrest charge was dismissed.
    Gradisher thereafter filed suit against Officers Hackathorn, Smith, Craft, and Leadbetter,
    Sergeant Vince Yurick, and Chief James Nice, all of the City of Akron Police Department,
    individually and in their official capacities, bringing causes of action under 42 U.S.C. § 1983 for
    constitutional violations due to excessive force, warrantless entry, wrongful arrest and
    imprisonment, and malicious prosecution in violation of the Fourth and Fourteenth Amendments
    of the United States Constitution. He also brought various state-law causes of action against
    them, as well as a cause of action for municipal liability against the City of Akron. The parties
    filed cross-motions for summary judgment, and the district court ruled in favor of the defendants
    on all grounds and entered judgment accordingly. Gradisher appeals the district court’s grant of
    summary judgment for the defendants on the causes of action alleging excessive force,
    warrantless entry, malicious prosecution, state-law torts, and municipal liability.
    II.
    A.
    We review de novo a district court’s summary judgment order.                Murray-Ruhl v.
    Passinault, 246 F. App’x 338, 342 (6th Cir. 2007); Black v. Roadway Express, Inc., 
    297 F.3d 445
    , 448 (6th Cir. 2002). Under Federal Rule of Civil Procedure 56, a district court “shall grant
    summary judgment if the movant shows that there is no genuine dispute as to any material fact
    and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine
    issue of material fact exists when, assuming the truth of the non-moving party’s evidence and
    construing all inferences from that evidence in the light most favorable to the non-moving party,
    there is sufficient evidence for a trier of fact to find for that party.” Murray-Ruhl, 246 F. App’x
    at 342.
    “Qualified immunity is an affirmative defense that generally shields government officials
    from suit under § 1983 for their discretionary actions.” Cummings v. City of Akron, 
    418 F.3d 676
    , 685 (6th Cir. 2005). To overcome that defense, a plaintiff must show that, when the facts
    are viewed in the light most favorable to him, (1) the defendant deprived him of a
    No. 14-3973                  Gradisher v. City of Akron, et al.                  Page 9
    constitutionally protected right, and (2) the right was “clearly established” at the time of the
    violation. Morrison v. Bd. of Trustees of Green Twp., 
    583 F.3d 394
    , 400 (6th Cir. 2009).
    “Courts may [] address these prongs in either order; indeed one may be dispositive.” Austin v.
    Redford Twp. Police Dep’t, 
    690 F.3d 490
    , 496 (6th Cir. 2012). “If either one is not satisfied,
    qualified immunity will shield the officer from civil damages.” Martin v. City of Broadview
    Heights, 
    712 F.3d 951
    , 957 (6th Cir. 2013).
    With regard to the second prong, “[a] Government official’s conduct violates clearly
    established law when, at the time of the challenged conduct, the contours of a right are
    sufficiently clear that every reasonable official would have understood that what he is doing
    violates that right.” Ashcroft v. al-Kidd, 
    131 S. Ct. 2074
    , 2083 (2011) (internal quotation marks
    and brackets omitted). Whether a right has been clearly established should not be determined at
    “a high level of generality.” 
    Id. at 2084.
    Courts “do not require a case directly on point, but
    existing precedent must have placed the statutory or constitutional question beyond debate.” 
    Id. at 2083.
    Thus, “officials can still be on notice that their conduct violates established law even in
    novel factual circumstances.” Hope v. Pelzer, 
    536 U.S. 730
    , 741 (2002). “The essence of
    qualified immunity [] is to give government officials cover when they resolve close calls in
    reasonable (even if ultimately incorrect) ways.” Hagans v. Franklin Cnty. Sheriff’s Office, 
    695 F.3d 505
    , 511 (6th Cir. 2012). “[S]ince the legal question of immunity is completely dependent
    upon which view of the facts is accepted by the jury,” Brandenburg v. Cureton, 
    882 F.2d 211
    ,
    216 (6th Cir. 1989), “summary judgment is inappropriate where there are contentious factual
    disputes,” Sova v. City of Mt. Pleasant, 
    142 F.3d 898
    , 903 (6th Cir. 1998).
    B.
    The Fourth Amendment to the United States Constitution protects against unreasonable
    searches and seizures by government officials. U.S. Const. amend. IV. “Searches of the home
    must be reasonable.” Johnson v. City of Memphis, 
    617 F.3d 864
    , 867 (6th Cir. 2010). “This
    reasonableness requirement generally requires that police obtain a warrant based upon a judicial
    determination of probable cause prior to entering a home.” Thacker v. City of Columbus,
    
    328 F.3d 244
    , 252 (6th Cir. 2003). Warrantless searches are presumptively unreasonable. Groh
    v. Ramirez, 
    540 U.S. 551
    , 559 (2004).
    No. 14-3973                   Gradisher v. City of Akron, et al.               Page 10
    Certain exceptions to the warrant requirement exist, however, including the presence of
    exigent circumstances. Mincey v. Arizona, 
    437 U.S. 385
    , 390 (1978). “Exigent circumstances
    arise when an emergency situation demands immediate police action that excuses the need for a
    warrant.” 
    Johnson, 617 F.3d at 868
    . Under this exception, “law enforcement officers may enter
    a home without a warrant to render emergency assistance to an injured occupant or to protect an
    occupant from imminent injury.” Brigham City, Utah v. Stuart, 
    547 U.S. 398
    , 403 (2006).
    Whether such a need exists requires an objective assessment of the circumstances. 
    Id. at 404.
    “Officers do not need ironclad proof of a likely serious, life-threatening injury to invoke the
    emergency aid exception,” but they must have an objectively reasonable basis for believing that
    “a person within the house is in need of immediate aid.” Michigan v. Fisher, 
    558 U.S. 45
    , 47, 49
    (2009) (internal quotation marks and brackets omitted). “But by the same token, their decision
    to enter must be based on more than a hunch or ‘the mere possibility’ that someone inside needs
    immediate aid.” Nelms v. Wellington Way Apartments, LLC, 513 F. App’x 541, 545 (6th Cir.
    2013).
    Here, the officers and Sergeant Yurick justify the entry based on the following facts:
    Gradisher made several drunken and abusive phone calls to 911 and reported that someone had a
    gun at a bar; when officers went to the bar to investigate, the bartender informed them that a
    white male, whose indistinct description matched Gradisher, had earlier made a subtle threat to
    another patron about having a gun; after the officers went to Gradisher’s residence, they learned
    that he had an outstanding warrant for failure to appear; and when the officers tried to speak to
    Gradisher, he bolted his front door and retreated into his back door when he was spotted coming
    out from there.
    Whether there was an objectively reasonable basis for the officers to enter Gradisher’s
    residence without a warrant due to exigent circumstances is a close question. But we need not
    decide whether the officers unlawfully entered the residence because “[w]e opt to answer the
    easier [] question[]” of whether the officers violated some constitutional right belonging to
    Gradisher that was clearly established at the time of the incident. 
    Hagans, 695 F.3d at 508
    .
    Gradisher argues that his “right to be free from a warrantless forced entry absent exigent
    circumstances was clearly established on September 2, 2011, and, therefore, these defendants are
    No. 14-3973                  Gradisher v. City of Akron, et al.               Page 11
    not entitled to qualified immunity.” But Gradisher frames the issue at too high a level of
    generality. See 
    al-Kidd, 131 S. Ct. at 2084
    . The appropriate question to ask is whether, on
    September 2, 2011, it was clearly established that no exigent circumstance exists when officers
    enter a residence in response to multiple erratic 911 calls from there and when they believe that
    someone inside may have threatened the use of a gun.
    We have held that “evidence of firearms within a residence does not create an exigency
    by itself,” Walters v. Stafford, 317 F. App’x 479, 489 n.9 (6th Cir. 2009), though additional
    factors coupled with such evidence may be sufficient to justify a warrantless entry or search, see
    United States v. Bates, 
    84 F.3d 790
    , 795 (6th Cir. 1996). Such factors include “threats to an
    officer’s safety, a criminal record reflecting violent tendencies, or a verified reputation of a
    suspect’s violent nature.” 
    Id. Another example
    is a 911 hangup call that was made from the
    residence since such a call might indicate that someone inside may need an officer’s aid. Causey
    v. City of Bay City, 
    442 F.3d 524
    , 530 (6th Cir. 2006). Along those lines, we have also held that
    when officers responding to a 911 call “announc[e] their presence [at a residence] and, after
    receiving no answer, enter[] in order to perform a cursory search for any endangered or injured
    persons,” they have an objectively reasonable basis to do so even without a warrant. 
    Johnson, 617 F.3d at 870
    .
    Viewing the facts in the light most favorable to Gradisher, we are unpersuaded that the
    defendants violated any of his clearly established rights by entering his house. As our precedent
    establishes, such an entry may be justified if there is evidence that an individual in a residence
    has a gun and officials receive a 911 call from within that residence that was hung up. Here, the
    officers and Sergeant Yurick stand on weaker ground because they had attenuated reasons for
    thinking that someone in Gradisher’s residence could be armed based largely on Gradisher’s
    report that a black male at Georgie’s had a gun and the bartender’s vague description of a white
    male who allegedly said he had a gun in his van. Furthermore, multiple 911 phone calls from
    someone who appears to be merely harassing the dispatcher is less suggestive of an emergency
    than silence on the other end. But we can find no law confirming that the officers and Sergeant
    Yurick were clearly wrong for deciding to enter on those bases, and Gradisher points us to none.
    As we have said, “[e]ven if the officers’ belief that someone within [a residence] could be in
    No. 14-3973                   Gradisher v. City of Akron, et al.                Page 12
    danger is a close question, the officers are entitled to the benefit of the doubt under the qualified
    immunity standard.” Dickerson v. McClellan, 
    101 F.3d 1151
    , 1160 (6th Cir. 1996). That
    principle certainly applies here. Accordingly, we affirm the district court’s grant of summary
    judgment to the officers and Sergeant Yurick on Gradisher’s unlawful-entry cause of action
    because the defendants did not violate Gradisher’s clearly established constitutional rights as of
    September 2, 2011, by entering his residence.
    C.
    “This court has held that the right to be free from excessive force is a clearly established
    Fourth Amendment right.” Neague v. Cynkar, 
    258 F.3d 504
    , 507 (6th Cir. 2001). A claim of
    excessive force turns on whether the officer’s actions were “objectively reasonable” in light of
    the totality of the circumstances. 
    Id. The trial
    court must perform a “careful balancing of the
    nature and quality of the intrusion on the individual’s Fourth Amendment interests against the
    countervailing governmental interests at stake.” Graham v. Connor, 
    490 U.S. 386
    , 396 (1989)
    (internal quotation marks omitted).      Among other factors, this balancing “requires careful
    attention to the facts and circumstances of each particular case, including [(1)] the severity of the
    crime at issue, [(2)] whether the suspect poses an immediate threat to the safety of the officers or
    others, and [(3)] whether he is actively resisting arrest or attempting to evade arrest by flight.”
    Id.; Lustig v. Mondeau, 211 F. App’x 364, 369–70 (6th Cir. 2006).
    Gradisher’s appeal concerning the officers’ use of excessive force focuses exclusively on
    Craft’s use of the taser on Gradisher. Because each officer’s liability must be individually
    assessed in a Section 1983 action, see Phillips v. Roane Cnty., Tenn., 
    534 F.3d 531
    , 541–42 (6th
    Cir. 2008), we affirm with little difficulty the district court’s grant of summary judgment to
    Officers Hackathorn, Smith, and Leadbetter on this cause of action.
    Turning to Craft’s use of the taser on Gradisher, we have held that “[i]f a suspect actively
    resists arrest and refuses to be handcuffed, officers do not violate the Fourth Amendment by
    using a taser to subdue him.” 
    Hagans, 695 F.3d at 509
    . “By contrast, when we have found
    excessive force, the suspects were compliant or had stopped resisting.” 
    Id. In determining
    whether officers used excessive force, courts have placed great weight on officers’ failure to
    No. 14-3973                        Gradisher v. City of Akron, et al.                         Page 13
    warn a suspect before deploying a taser. Cockrell v. City of Cincinnati, 468 F. App’x 491, 498
    (6th Cir. 2012) (Cole, J., concurring).
    The parties dispute whether or not Gradisher was resisting or refusing to be handcuffed.
    The officers claim that Gradisher repeatedly pulled his arms back when they attempted to
    handcuff him.       They assert that Gradisher kept reaching his hands towards his waistband,
    possibly for a weapon, and would not comply with their commands to give up his arms both
    before and during the tasing. Gradisher, conversely, says that when the officers pulled the sheet
    off of him, he held his hands up and his legs out, and said “You got me, You got me,” yet they
    deployed the taser “[a]t that time.” He also claims that the officers gave no warning before
    immediately tasing him, and they continued to tase him even though he could not follow orders
    since he was incapacitated by the tasing. Thus, whether Gradisher resisted or not and whether he
    was given an opportunity to comply with commands before, and while, being tased are material
    facts in dispute. “Where, as here, the legal question of qualified immunity turns upon which
    version of the facts one accepts, the jury, not the judge, must determine liability.” 
    Sova, 142 F.3d at 903
    . Accordingly, we reverse the district court’s grant of summary judgment to
    Officer Craft on Gradisher’s excessive-force cause of action.
    D.
    To support a claim of malicious prosecution,
    a plaintiff must prove the following: (1) a criminal prosecution was initiated
    against the plaintiff and the defendant made, influenced, or participated in the
    decision to prosecute; (2) there was no probable cause for the criminal
    prosecution; (3) as a consequence of the legal proceeding, the plaintiff suffered a
    deprivation of liberty apart from the initial seizure; and (4) the criminal
    proceeding was resolved in the plaintiff’s favor.
    Robertson v. Lucas, 
    753 F.3d 606
    , 616 (6th Cir. 2014).
    The district court granted Hackathorn summary judgment on Gradisher’s malicious-
    prosecution cause of action.1 On appeal, Gradisher makes a cursory argument that he did not
    1
    Although Gradisher’s Second Amended Complaint asserted a malicious-prosecution claim against all of
    the officers, his brief on appeal only argues that “Hackathorn was not entitled to summary judgment.” He has
    therefore waived his appeal of this cause of action with regard to the other officers. See Robinson v. Jones, 
    142 F.3d 905
    , 906 (6th Cir. 1998) (per curiam).
    No. 14-3973                        Gradisher v. City of Akron, et al.                          Page 14
    resist arrest and thus there was no probable cause in charging him with doing so. But “[i]ssues
    adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,
    are deemed waived.” McPherson v. Kelsey, 
    125 F.3d 989
    , 995 (6th Cir. 1997) (citation and
    internal quotation marks omitted). We therefore affirm the district court’s grant of summary
    judgment to Hackathorn on this cause of action.
    E.
    “To prevail in a § 1983 suit against a municipality, a plaintiff must show that the alleged
    federal right violation occurred because of a municipal policy or custom.” Thomas v. City of
    Chattanooga, 
    398 F.3d 426
    , 429 (6th Cir. 2005). We have explained:
    A plaintiff can make a showing of an illegal policy or custom by demonstrating
    one of the following: (1) the existence of an illegal official policy or legislative
    enactment; (2) that an official with final decision making authority ratified illegal
    actions; (3) the existence of a policy of inadequate training or supervision; or (4)
    the existence of a custom of tolerance or acquiescence of federal rights violations.
    Burgess v. Fischer, 
    735 F.3d 462
    , 478 (6th Cir. 2013).
    The district court granted summary judgment to the City of Akron on Gradisher’s claim
    of municipal liability given the district court’s conclusion that the individual officers did not
    commit any predicate constitutional violation.2 See Ewolski v. City of Brunswick, 
    287 F.3d 492
    ,
    516 (6th Cir. 2002) (“Where, as here, a municipality’s liability is alleged on the basis of the
    unconstitutional actions of its employees, it is necessary to show that the employees inflicted a
    constitutional harm.”). Thus, the district court did not address whether any municipal policy or
    custom allowed for the harms Gradisher allegedly suffered. But because we reverse the district
    court’s grant of summary judgment to Craft on the excessive-force claim, we also reverse the
    district court’s grant of summary judgment to the City of Akron on the companion municipal-
    liability claim and remand for the district court to determine in the first instance whether
    summary judgment should be granted to either party; we affirm the district court’s ruling on
    municipal liability in all other respects.
    2
    The district court also held that Chief Nice could not be held personally liable for any actions of the other
    officers. Because Gradisher does not claim that Nice directly participated in or encouraged the alleged wrongdoing,
    we affirm the district court’s grant of summary judgment in his favor. See Leach v. Shelby Cnty. Sheriff, 
    891 F.2d 1241
    , 1246 (6th Cir. 1989).
    No. 14-3973                   Gradisher v. City of Akron, et al.                Page 15
    F.
    Ohio Revised Code § 2744.03(A)(6) provides that employees of a political subdivision
    are immune from liability for torts under Ohio law unless “[t]he employee’s acts or omissions
    were manifestly outside the scope of the employee’s employment or official responsibilities,” or
    “[t]he employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or
    reckless manner.” Ohio Rev. Code § 2744.03(A)(6). “An actor can be found to be reckless
    either based on his actual knowledge of a risk of harm or under an objective standard (that the
    risk is ‘obvious’).” Goodwin v. City of Painesville, 
    781 F.3d 314
    , 334–35 (6th Cir. 2015).
    “Satisfying the objective reasonableness standard shields [] officers under state statutory
    immunity as well.” Jones v. City of Cincinnati, 507 F. App’x 463, 470 (6th Cir. 2012); see also
    Burdine v. Sandusky Cnty., Ohio, 524 F. App’x 164, 171 (6th Cir. 2013); Chappell v. City of
    Cleveland, 
    585 F.3d 901
    , 916 n.3 (6th Cir. 2009).
    The district court concluded with little explanation that the defendants are immune from
    tort liability for their actions because they were performing governmental functions and because
    Gradisher failed to show that any statutory exception applied. Gradisher, on the other hand,
    argues that the officers are not immune from his causes of action for assault and battery,
    intentional infliction of emotional distress, and gross neglect because their warrantless entry and
    excessive use of force were reckless.
    Because there is a genuine dispute of material fact about whether Craft used excessive
    force or was objectively reasonable in tasing Gradisher, we reverse the district court’s grant of
    summary judgment in Craft’s favor on the state law claims for assault and battery, intentional
    infliction of emotional distress, and gross neglect to the extent that they are related to tasing and
    remand for the district court to determine whether summary judgment should be granted to either
    party. See Jones v. Sandusky Cnty., Ohio, 541 F. App’x 653, 667 (6th Cir. 2013) (remanding
    Ohio state-law claims “[g]iven the presence of several remaining factual disputes”); Martin v.
    City of Broadview Heights, 
    712 F.3d 951
    , 963 (6th Cir. 2013) (“Qualified immunity does not
    protect the officers here. As resolution of the state-law immunity issue is heavily dependent on
    the same disputed material facts as the excessive-force determination under § 1983, the district
    court properly denied summary judgment to the officers on the [] state-law claims.”). However,
    No. 14-3973                     Gradisher v. City of Akron, et al.                 Page 16
    because the officers did not violate any of Gradisher’s clearly established rights when they
    entered his residence, and nothing else shows that they otherwise acted “with malicious purpose,
    in bad faith, or in a wanton or reckless character,” state immunity applies to the remaining claims
    and we affirm the district court’s judgment in all other respects. 
    Hagans, 695 F.3d at 511
    .
    III.
    Because there are genuine disputes of material facts related to whether Officer Craft used
    excessive force in tasing Gradisher, we reverse the district court’s grant of summary judgment to
    Craft on the excessive-force cause of action and to the City of Akron on the corresponding
    municipal-liability cause of action. For the same reason, we reverse the district court’s grant of
    summary judgment to Craft on the state-law causes of action for assault and battery, intentional
    infliction of emotional distress, and gross neglect to the extent that they relate to the tasing.
    We affirm the district court’s judgment in all other respects and remand for proceedings
    consistent with this opinion.
    

Document Info

Docket Number: 14-3973

Citation Numbers: 794 F.3d 574, 2015 FED App. 0160P, 2015 U.S. App. LEXIS 12814, 2015 WL 4503208

Judges: Cole, Gilman, Kethledge

Filed Date: 7/24/2015

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (22)

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Choice L. Causey Henretta Denise Bradley v. City of Bay ... , 442 F.3d 524 ( 2006 )

Olee Wonzo Robinson v. Mark C. Jones , 142 F.3d 905 ( 1998 )

Graham v. Connor , 109 S. Ct. 1865 ( 1989 )

Chappell v. City of Cleveland , 585 F.3d 901 ( 2009 )

Brigham City v. Stuart , 126 S. Ct. 1943 ( 2006 )

United States v. Rondell Bates , 84 F.3d 790 ( 1996 )

Morrison v. Board of Trustees of Green Tp. , 583 F.3d 394 ( 2009 )

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Ashcroft v. al-Kidd , 131 S. Ct. 2074 ( 2011 )

douglas-c-mcpherson-and-connie-k-mcpherson , 125 F.3d 989 ( 1997 )

chad-timothy-dickerson-and-deon-denay-dickerson-a-minor-by-her-mother-and , 101 F.3d 1151 ( 1996 )

Mincey v. Arizona , 98 S. Ct. 2408 ( 1978 )

Phillips v. Roane County, Tenn. , 534 F.3d 531 ( 2008 )

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Hope v. Pelzer , 122 S. Ct. 2508 ( 2002 )

Emil Ewolski v. City of Brunswick , 287 F.3d 492 ( 2002 )

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