Cabaniss v. Riverside , 231 F. App'x 407 ( 2007 )


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  •                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 07a0257n.06
    Filed: April 6, 2007
    No. 06-3546
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    AMANDA CABANISS, Administrator of the
    Estate of KEVIN CABANISS, Deceased,
    Plaintiff-Appellant,
    v.
    ON APPEAL FROM THE UNITED
    CITY OF RIVERSIDE; DAN ALIG, City of                   STATES DISTRICT COURT FOR THE
    Riverside Chief of Fire Department; GEORGE             SOUTHERN DISTRICT OF OHIO
    BROWN, City of Riverside Chief of Police;
    JASON CARLTON, City of Riverside Police
    Officer; DAVID CRAINE, City of Riverside
    Police Officer; EDWARD KRONENBERGER,
    City of Riverside Paramedic; ROBERT NAFF,
    City of Riverside Police Officer; AND SHON
    SMITH, City of Riverside Paramedic,
    Defendants-Appellees.
    /
    BEFORE:        MARTIN and CLAY, Circuit Judges; and POLSTER, District Judge.*
    CLAY, Circuit Judge. Plaintiff Amanda Cabaniss (“Plaintiff”) brings these claims on
    behalf of the estate of her late father, Kevin Cabaniss (“Cabaniss”). Plaintiff alleges that Defendants
    City of Riverside, Dan Alig, George Brown, David Craine, Jason Carlton, Robert Nash, Edward
    *
    The Honorable Dan A. Polster, United States District Judge for the Northern District of
    Ohio, sitting by designation.
    No. 06-3546
    Kronenberger, and Shon Smith violated the Fourth and Eighth Amendment rights of her father; and,
    additionally violated several Ohio state laws, resulting in their liability for his death. For the reasons
    set forth below, we AFFIRM the order of the district court granting summary judgment with respect
    to all Defendants.
    BACKGROUND
    On May 21, 2003, Kevin Cabaniss visited his friend, Albert Fugate, at Fugate’s home.
    During the visit, Cabaniss consumed about 1.5 pints of whiskey and became extremely intoxicated.
    According to Fugate, Cabaniss was so intoxicated that he was vomiting uncontrollably and could
    barely speak. Because Cabaniss was also being belligerent and destructive to Fugate’s home , Fugate
    took Cabaniss outside of the house to let him sober up. Once outside, Cabaniss walked to the house
    of a neighbor and broke the glass in an outside lamp. Fugate observed as Cabaniss “put his hands
    in [the] light socket and acted like it electrocuted him” and then returned to the lawn near Fugate’s
    home and lay down. (J.A. at 739). One of Fugate’s neighbors called 911 and reported Cabaniss’
    disruptive behavior. When the police arrived, Fugate and several of his neighbors were all at the
    scene.
    Defendant Officer David Craine arrived first and observed Cabaniss lying on the ground,
    clenching his fists and “acting agitated.” (J.A. at 630). Craine asked one of the onlookers if
    Cabaniss was a diabetic because he was “acting disorientated and agitated.” (J.A. at 631). Craine
    was informed by Fugate that Cabaniss had gotten drunk, had broken a lamp and that Fugate thought
    he was trying to electrocute himself. Craine spoke with three of the onlookers about Cabaniss, but
    2
    No. 06-3546
    he could not remember specifically who told him the information he was given. Craine was told that
    Cabaniss “had freaked out,” and that he “was kind of a space cadet.” (J.A. at 631-32).
    Defendants Officers Naff and Carlton arrived shortly after Craine. (J.A. at 637). The officers
    asked whether Cabaniss was suicidal and Fugate recounted the incident from earlier when Cabaniss
    broke the lamp and speculated that he had been trying to electrocute himself. Fugate also told the
    officers that in the past Cabaniss had “jumped out of cars, so [he] would say, yeah, [Cabaniss] is
    probably suicidal.” (J.A. at 739). The officers began questioning Cabaniss, who was unresponsive
    to their questions. He spit at the officers when they tried to help him stand up. Carlton told him if
    Cabaniss spit at him again, Carlton would “kick his teeth in.” (J.A. at 742). When Cabaniss spit at
    them again, the officers flipped Cabaniss onto his stomach, handcuffed him, and placed him under
    arrest for disorderly conduct. Cabaniss refused to give the officers his arms to be handcuffed, so
    both Carlton and Craine were needed to effectuate the arrest. After Cabaniss had been handcuffed,
    the officers walked Cabaniss to the police car. As they walked, Cabaniss continued cursing at them
    and telling them he had been in Vietnam and that he would kill them.
    The officers attempted to seat Cabaniss in the backseat of the car and seat belt him.
    However, Cabaniss would not cooperate with the officers and once he was seated in the vehicle, he
    repeatedly slid out of the officers’ reach so they could not secure him with a seat belt. The officers
    eventually stopped trying and simply let him sit, unsecured, in the back of Carlton’s police cruiser.
    Soon after, Defendants Edward Kronenberger and Shon Smith, Riverside City paramedics, arrived
    on the scene. Kronenberger let Cabaniss out of the cruiser and told him he was there to help.
    Kronenberger asked if Cabaniss was injured or needed any assistance and Cabaniss cursed at him
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    No. 06-3546
    and threatened Kronenberger and his family. Cabaniss did not allow Kronenberger to touch him,
    so Kronenberger was significantly limited in his ability to conduct a full examination. Kronenberger
    noticed that Cabaniss smelled strongly of alcohol and assumed Cabaniss’ behavior was due to
    extreme intoxication. Kronenberger determined he would be unable to get Cabaniss to cooperate
    with his examination and told him to sit in the police car.
    Kronenberger returned to the lawn to question the bystanders about Cabaniss’ behavior. He
    was told by someone, who identified himself as Cabaniss’ boss, that Cabaniss had a mental problem.
    Kronenberger testified that he understood that comment to refer to the way that Cabaniss was
    currently behaving and did not take it as advice that Cabaniss was actually mentally unwell. After
    that exchange, Defendants Kronenberger, Smith, and Naff all left the scene.
    Carlton was able to get Cabaniss’ identification from Fugate and returned to the police cruiser
    where Cabaniss was. When Carlton found out Cabaniss’ birth date, he pointed out that Cabaniss
    could not have been in Vietnam because he was born in 1960. In response to this, Cabaniss began
    kicking in the backseat of the car. Carlton later described his kicks as “wimpy” and explained that
    he allowed Cabaniss to proceed kicking because he knew he could not break anything. (J.A. at 459).
    Carlton, who drove the cruiser in which Cabaniss was being held, did not secure Cabaniss in a seat
    belt in the cruiser. Carlton got into his cruiser and Craine pulled up next to him so that the officers
    could talk. Craine noticed that Cabaniss was hitting his head on the plexiglass window that
    separated Cabaniss from Carlton and also that he was pushing against it with his feet. Craine warned
    Carlton to keep an eye on Cabaniss, and Carlton stated that he noticed his plexiglass window was
    coming out about two inches and Cabaniss was pressing on it with his feet and it began to crack.
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    No. 06-3546
    Carlton warned Cabaniss several times to stop pushing the window and hitting his head against it,
    but Cabaniss did not stop. Craine asked Carlton, “do you want me to spray him?” and Carlton
    responded “No, I will.” (J.A. at 651). Carlton then rolled down the back window and walked around
    to the window. He told Cabaniss one last time that he would be sprayed with pepper spray if he did
    not stop kicking and banging his head on the plexiglass. Carlton got out of the vehicle and went to
    the driver side window and sprayed pepper spray at Cabaniss, who was sitting about halfway
    between the two backseat windows. Craine instructed Carlton that Cabaniss would need to be
    decontaminated, which consisted of having the pepper spray residue cleaned from his face, before
    he could be admitted to the jail. Carlton drove to the Police/Fire Station to have Cabaniss cleaned
    up, and Craine followed them. Naff, who had returned to the department earlier, met Craine and
    Carlton outside and assisted as the officers used a hose to rinse the remaining residue off of
    Cabaniss’ face. After he had been decontaminated, Cabaniss told the officers that the water had been
    soothing and he was feeling better. He asked if he could stand up outside of the cruiser. They told
    him no, but he tried to stand anyway and fell down in the process. Carlton tried to grab him, but was
    unable to do so in time and Cabaniss fell to the ground and hit his head on the concrete.
    Both Craine and Carlton observed a bump on Cabaniss’ head from the fall. Craine went to
    get Kronenberger from inside. According to Kronenberger and Carlton, Cabaniss “purposefully
    lunge[d] away from Carlton” as Carlton tried to control him and struck his head on the ground again,
    however, neither Naff or Craine observed such an incident. (J.A. at 460-61). Kronenberger and
    other paramedics treated Cabaniss immediately, but he ultimately died as a result of swelling on his
    brain as a result of the blow to his head.
    5
    No. 06-3546
    Plaintiff originally brought twenty-three claims against Defendants, many of which were
    repetitive of others. Defendants moved for summary judgment on all claims, and Plaintiff cross filed
    for summary judgment on the claims. As most facts were undisputed, the district court determined
    that there existed no genuine issues of material fact. The district court held that Plaintiff did not
    allege sufficient facts to make any of her claims and ultimately granted Defendants motions for
    summary judgment and dismissed all claims. Plaintiff appeals that order with respect to four claims:
    her claim of excessive force, her claim of deliberate indifference, her claim of failure to train, and
    her state law claims, over which the district court exercised supplemental jurisdiction and are,
    therefore, properly before this Court.
    DISCUSSION
    I.     The district court properly granted Defendants’ motion for summary judgment with
    respect to all claims against Defendants Alig, Brown, and Smith
    A.      Standard of Review
    We review a district court’s grant of summary judgment de novo. Blackmore v. Kalamazoo,
    
    390 F.3d 890
    , 894-95 (6th Cir. 2004). Summary judgment is proper where “the pleadings,
    deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any,
    show that there is no genuine issue as to any material fact and the moving party is entitled to
    judgment as a matter of law.” Fed. R. Civ. P. 56 (c). The moving party bears the initial burden of
    demonstrating the absence of any genuine issue of material fact, and all inferences should be made
    in favor of the non-moving party. Celotex Corp. v. Catrett, 
    477 U.S. 317
    , 323 (1986).
    B.      Analysis
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    No. 06-3546
    It is well-established that where a party does not present an issue in the initial briefs on
    appeal that issue is deemed waived. Thaddeus-X v. Blatter, 
    175 F.3d 378
    , 403 (6th Cir. 1999). It
    has likewise been established that where an argument is presented in a perfunctory and cursory
    manner, it is considered waived and we may not address it. McPherson v. Kelsey, 
    125 F.3d 989
    , 995
    (6th Cir. 1997). Because Plaintiff mentions Defendants Alig, Brown, and Smith only in passing and
    fails to assert any facts that connect these Defendants to any of the events that form the basis of
    Plaintiff’s claims, we find that the arguments against these Defendants have been waived. See 
    id. Thus, the
    district court properly granted summary judgment with respect to these parties.
    II.    The district court properly granted Defendants’ motion for summary judgment with
    respect to Plaintiff’s excessive force claim
    A.      Standard of Review
    For the same reasons stated above, we review a district court grant of summary judgment de
    novo. 
    See supra
    Part I.A.
    B.      Analysis
    1.      Section 1983
    Section 1983 is not an independent source of constitutional rights. Instead, it operates as a
    vehicle to assert violations of other constitutional rights. Graham v. Connor, 
    490 U.S. 386
    , 393-94
    (1989). Thus, in order to bring a § 1983 claim, a plaintiff must begin by identifying a violation of
    an existing constitutional right. Waters v. City of Morristown, 
    242 F.3d 353
    , 358-59 (6th Cir. 2001).
    The plaintiff must then show that the right was violated by state actors who were acting under the
    color of state law. 
    Id. Because Plaintiff
    alleges that Defendants violated Cabaniss’ Fourth
    Amendment rights by acting with excessive force, the claim contains the requisite constitutional
    7
    No. 06-3546
    violation. Further, we have past held that a claim of excessive force while a person, who has been
    seized, is in custody, is properly governed by the Fourth Amendment. Phelps v. Coy, 
    286 F.3d 295
    ,
    300 (6th Cir. 2002). Thus, this § 1983 claim is properly stated.
    2.      Excessive Force
    The touchstone of a Fourth Amendment excessive force claim is reasonableness. 
    Graham, 490 U.S. at 395
    . This Court must consider “the facts and circumstances of each particular case,
    including the severity of the crime at issue, whether the suspect posed an immediate threat to the
    safety of the officers or others, and whether he was actively resisting arrest or attempting to evade
    arrest by flight” to ascertain whether the officers’ use of force was reasonable. 
    Id. at 396.
    “This
    standard contains a built-in measure of deference to the officer’s on-the-spot judgment about the
    level of force necessary in light of the circumstances of the particular case.” Burchett v. Kiefer, 
    310 F.3d 937
    , 944 (6th Cir. 2002). Thus, reasonableness must be adjudged from the point of view of
    the officer at the time of the incident. Smoak v. Hall, 
    460 F.3d 768
    , 783 (6th Cir. 2006)
    Government officials may invoke qualified immunity to avoid “liability for civil damages
    insofar as their conduct does not violate clearly established statutory or constitutional rights of which
    a reasonable person would have known.” Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818 (1982). Thus,
    even after a plaintiff makes the necessary showing with respect to the underlying constitutional
    violation, a defendant may still assert qualified immunity to succeed on summary judgement.
    Once it can be shown that a defendant violated a constitutional right, the relevant question
    for the qualified immunity inquiry is whether that right was clearly established. Saucier v. Katz, 
    533 U.S. 194
    , 202 (2001). This question asks “whether it would be clear to a reasonable officer that his
    8
    No. 06-3546
    conduct was unlawful in the situation he confronted.” 
    Id. Qualified immunity
    does not operate like
    an affirmative defense; instead, the plaintiff bears the burden of showing that a right was clearly
    established. Key v. Grayson, 
    179 F.3d 996
    , 1000 (6th Cir. 1999). Additionally, the plaintiff must
    show that the right was clearly established “in light of the specific context of the case, not as a broad
    general proposition.” 
    Saucier, 533 U.S. at 202
    . Thus, if reasonable officers could disagree about
    the lawfulness of the conduct in question, immunity must be granted. 
    Key, 179 F.3d at 1000
    .
    As we have held, “the lack of Supreme Court or Sixth Circuit precedent ‘is not a sufficient
    condition for concluding that the law is unclear on the subject and [thus that] qualified immunity
    must be granted to a defendant.’” Perez v. Oakland County, 
    466 F.3d 416
    , 427 (6th Cir. 2006)
    (quoting McCloud v. Testa, 
    97 F.3d 1536
    , 1556 (6th Cir. 1996)). “[T]he decisions of other courts
    can also clearly establish the law[,] but they must point [unmistakably] to the unconstitutionality of
    the conduct and be so clearly foreshadowed by applicable direct authority as to leave no doubt in the
    mind of a reasonable officer that his conduct was unconstitutional.” Summar v. Bennett, 
    157 F.3d 1054
    , 1058 (6th Cir. 1998) (internal citation omitted). “There need not be a case with the exact same
    fact pattern, or even ‘fundamentally similar’ or ‘materially similar’ facts; rather, the question is
    whether the defendants had ‘fair warning’ that their actions were unconstitutional.” Cummings v.
    City of Akron, 
    418 F.3d 676
    , 687 (quoting Hope v. Pelzer, 
    536 U.S. 730
    , 741 (2002)).
    In the present case, Plaintiff alleges that the officers used excessive force both in using a
    water hose on Cabaniss and in using pepper spray on him. The argument that the water hose
    constituted excessive force is entirely meritless because Plaintiff does not even attempt to allege that
    the hose was used forcefully. In fact, the record seems to indicate that Cabaniss enjoyed being rinsed
    9
    No. 06-3546
    with the hose. Thus, we will address the excessive force claim only with respect to the use of pepper
    spray.
    Only Carlton may be liable for excessive force because he was the officer to administer the
    pepper spray and was assisted by no one else. See Sandul v. Larion, 
    119 F.3d 1250
    , 1253 (6th Cir.
    1997) (refusing to hold officers who did not participate in the arrest of the plaintiff liable for
    excessive force). As a general rule, we have held that the use of pepper spray is excessive force
    when the detainee “surrenders, is secured, and is not acting violently, and there is no threat to the
    officers or anyone else.” Champion v. Outlook Nashville, Inc., 
    380 F.3d 893
    , 903 (6th Cir. 2004)
    (quoting Vinyard v. Wilson, 
    311 F.3d 1340
    , 1348 (11th Cir. 2002)). The logical corollary to this rule
    is that there is a very limited class of circumstances when the use of pepper spray is proper, including
    where a detainee is unsecured, acting violently, and posing a threat to himself or others. In Monday
    v. Oullette, 
    118 F.3d 1099
    (6th Cir. 1997), for example, we found proper the use of pepper spray
    where the victim needed to be subdued to prevent a danger to himself. 
    Id. at 1104-05.
    In Gaddis
    v. Redford Twp., 
    364 F.3d 763
    , 774 (6th Cir. 2004), we found the use of pepper spray to be
    reasonable when officers feared that an arrestee, armed with a knife, was going to flee.
    In the present case, Cabaniss had been uncooperative with Carlton when he tried to secure
    him in a seatbelt, and thus, was unsecured in the backseat of the car. Further, he was kicking the
    plexiglass and beating his head against it, exhibiting signs that he presented a danger to himself and
    that he might be a flight risk. As Plaintiff correctly observes, Carlton described Cabaniss’ kicks as
    “wimpy.” (J.A. at 459). Thus, viewing these facts in the light most favorable to Plaintiff, we must
    assume that Cabaniss’ kicks were incapable of doing any real damage. However, at most, this
    10
    No. 06-3546
    undermines only the contention that Cabaniss posed a flight risk. He was still unsecured in the
    backseat and was banging his head repeatedly on the glass, posing a danger to himself. Carlton
    warned him repeatedly to stop and he would not do so. Taken together with the information Carlton
    had received earlier that Cabaniss’ friends suspected he could be suicidal, Carlton had every reason
    to fear that Cabaniss posed a real threat to his own safety and needed to be subdued. These facts fall
    well within the class of situations that we have in the past held may reasonably justify the use of
    pepper spray. 
    Champion, 380 F.3d at 903
    . Thus, we conclude that no constitutional violation took
    place and need not address Carlton’s claim that he was entitled to qualified immunity.
    III.   The district court properly granted Defendants’ motion for summary judgment with
    respect to Plaintiff’s deliberate indifference claim
    A.      Summary Judgment
    For the same reasons stated above, we review a district court grant of summary judgment de
    novo. 
    See supra
    Part I.A.
    B.      Analysis
    1.      Section 1983 Claim
    Again, we begin by noting that Plaintiff’s § 1983 claim is properly formulated, inasmuch as
    a deliberate indifference claim is a claim of a violation of a detainee’s Eighth Amendment right to
    be free from treatment that is amounts to cruel and unusual punishment.
    2.      Deliberate Indifference Standard
    “[T]he Eighth Amendment prohibits mistreatment only if it is tantamount to “punishment,”
    and thus courts have imposed liability upon prison officials only where they are ‘so deliberately
    indifferent to the serious medical needs of prisoners as to unnecessarily and wantonly inflict pain.’”
    11
    No. 06-3546
    
    Perez, 466 F.3d at 423
    (quoting Horn v. Madison County Fiscal Court, 
    22 F.3d 653
    , 660 (6th Cir.
    1994)). This Court has defined “[a] serious medical need [as] ‘one that has been diagnosed by a
    physician as mandating treatment or one that is so obvious that even a lay person would easily
    recognize the necessity for a doctor’s attention.’” 
    Blackmore, 390 F.3d at 897
    (quoting Gaudreault
    v. Municipality of Salem, 
    923 F.2d 203
    , 208 (1st Cir. 1990)).
    The “deliberate indifference” standard requires a showing of more than mere negligence. We
    have held that there are two distinct prongs of this standard: An objective component and a
    subjective component. First, the medical need of the detainee “must be, objectively, sufficiently
    serious.” Farmer v. Brennan, 
    511 U.S. 825
    , 834 (1994). We have held that where there are “minor
    or non-obvious” injuries to a detainee, there must be a showing that the defendant’s deliberate
    indifference was the proximate cause of the detainee’s ultimate injuries. Owensby v. City of
    Cincinnati, 
    414 F.3d 596
    , 604 (6th Cir. 2005). The subjective component requires facts that indicate
    “that the official being sued subjectively perceived facts from which to infer substantial risk to the
    prisoner, that he did in fact draw the inference, and that he then disregarded that risk.” Comstock v.
    McCrary, 
    273 F.3d 693
    , 703 (6th Cir. 2001). “Deliberate indifference requires a degree of
    culpability greater than mere negligence, but less than ‘acts or omissions for the very purpose of
    causing harm or with knowledge that harm will result.’” Miller v. Calhoun County, 
    408 F.3d 803
    ,
    812 (6th Cir. 2005) (quoting 
    Farmer, 511 U.S. at 835
    ).
    In the present case, it is not entirely clear how Plaintiff contends Defendants were
    deliberately indifferent. Plaintiff seems to make a general argument that because the officers and
    paramedics knew that Cabaniss had exhibited suicidal behavior and was intoxicated, his accidental
    12
    No. 06-3546
    fall resulted from deliberate indifference. However, this is insufficient to make a deliberate
    indifference claim because being intoxicated is not the type of obviously serious medical need which
    can easily satisfy the objective prong of the deliberate indifference inquiry. See 
    Owensby, 414 F.3d at 604
    . In other words, a showing of proximate cause is imperative in a case like this, where the
    medical needs of the detainee are not obvious, and Plaintiff cannot make such a showing. This
    would be a different case if Cabaniss had died as a direct result of the condition that he displayed and
    Defendants had ignored that condition. For example, if Cabaniss had died of alcohol poisoning, the
    fact that he exhibited signs of intoxication would be relevant to our inquiry. At most, Cabaniss may
    have died as a result of an accident that may have been facilitated by his intoxication.           The
    deficiency in Plaintiff’s allegation stems from the fact that there is an insufficient causal connection
    demonstrated between an accidental fall like the one Cabaniss suffered and his intoxication.
    Cabaniss would not have suffered his fatal fall but for the fact that he acted contrary to the warnings
    of Defendants, which relieves them of responsibility for being the proximate cause of his death.
    Likewise, the fact that Defendants had been warned by Cabaniss’ friends that he might be
    suicidal cannot save this claim. Because it is not argued that suicide was the cause of Cabaniss’
    death, suicidal tendencies cannot be the predicate for Plaintiff’s deliberate indifference claim. While
    suicidal tendencies create a heightened standard for the requirement that a detainee to be monitored,
    Plaintiff does not contend that Cabaniss was not under observation. In fact, the record shows that
    when Cabaniss asked if he could stand on his own outside of the vehicle, Defendants warned him
    not to do so. Further, when he began to fall, Defendants tried to catch him, but were unsuccessful.
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    No. 06-3546
    Finally, as soon as Cabaniss fell, Defendants retrieved paramedics to give him immediate medical
    attention. These facts simply do not amount to deliberate indifference.
    Arguably, the conflicting accounts of Cabaniss’ fall are relevant here. After the fall, Carlton,
    who had tried to catch Cabaniss, held him and tried to inspect his injury while they waited for the
    paramedics to come outside. According to Carlton and Kronenberger, Cabaniss wrenched himself
    away from Carlton and pounded his head on the concrete again. Naff and Craine, however, denied
    seeing this happen. Importantly, Plaintiff does not make the argument that Cabaniss inflicted his
    fatal injury upon himself. However, viewing these facts in the light most favorable to Plaintiff, albeit
    a light she failed to shed on the facts, we can entertain the possibility that Cabaniss did in fact
    purposely hit his head against the concrete again after his initial fall. Thus, we may construe
    Plaintiff’s deliberate indifference argument to be that Defendants acted with deliberate indifference
    to Cabaniss by failing to properly monitor a detainee who they knew to have exhibited suicidal
    tendencies. Such an argument, however, would not be successful. Inasmuch as deliberate
    indifference requires a greater degree of culpability than negligence, it certainly requires a greater
    degree of culpability than simply failing to adequately protect a detainee while exerting one’s best
    efforts to do so. See 
    Miller, 408 F.3d at 812
    . In this case, the officers warned Cabaniss not to
    attempt to stand on his own, but he did so anyway. When he began to fall, it is undisputed that the
    officers tried to catch him and, when they were unsuccessful, immediately summoned paramedics
    to treat him. Cabaniss was never left unobserved and he was able to hurt himself despite
    Defendants’ reasonable efforts to protect him. Finally, he was immediately provided medical
    14
    No. 06-3546
    attention that was, unfortunately, ultimately unsuccessful. While these facts are certainly tragic, they
    simply do not leave Defendants liable for deliberate indifference. See 
    Comstock, 273 F.3d at 703
    .
    Plaintiff made a different argument at oral argument that is essentially that Kronenberger
    acted with deliberate indifference during his initial inspection of Cabaniss by failing to give Cabaniss
    a full medical inspection. Plaintiff claims that had Kronenberger fully inspected Cabaniss at the
    outset, his fatal fall could have been avoided because he would have been taken directly to the
    hospital and not to the police station. Plaintiff does not, however, allege precisely what was wrong
    with Cabaniss that Kronenberger would have discovered with a fuller examination. Thus, once
    again, Plaintiff fails to connect the dots between Kronenberger’s actions and the prevention of
    Cabaniss’ injury. Plaintiff does not allege that Kronenberger would have discovered a serious
    medical need had he inspected Cabaniss more fully, only that it is possible he would have taken him
    to a different location. We will not engage in speculation about how things would have been
    different had Cabaniss been brought to a hospital instead of a police station when the ultimate cause
    of his injury was not a failure of medical attention but an accidental fall.
    IV.     The district court properly granted Defendants’ motion for summary judgment with
    respect to Plaintiff’s failure to train claim against the City of Riverside
    A.      Standard of Review
    For the same reasons stated above, we review a district court grant of summary judgment de
    novo. 
    See supra
    Part I.A.
    B.      Analysis
    According to the Supreme Court:
    15
    No. 06-3546
    [a] city is not liable under § 1983 unless a municipal “policy” or “custom” is the
    moving force behind the constitutional violation. Only where a failure to train reflects
    a “deliberate” or “conscious” choice by the municipality can the failure be properly
    thought of as an actionable city “policy.” Monell [v. New York City Dept. of Social
    Services, 
    436 U.S. 658
    (1978)] will not be satisfied by a mere allegation that a
    training program represents a policy for which the city is responsible. Rather, the
    focus must be on whether the program is adequate to the tasks the particular
    employees must perform, and if it is not, on whether such inadequate training can
    justifiably be said to represent “city policy.” Moreover, the identified deficiency in
    the training program must be closely related to the ultimate injury.
    City of Canton v. Harris, 
    489 U.S. 378
    (1989). We have formulated a three-part test which requires
    that “[t]o succeed on a failure to train or supervise claim [under a § 1983 theory], the plaintiff must
    prove the following: (1) the training or supervision was inadequate for the tasks performed; (2) the
    inadequacy was the result of the municipality’s deliberate indifference; and (3) the inadequacy was
    closely related to or actually caused the injury.” Ellis v. Cleveland Mun. Sch. Dist., 
    455 F.3d 690
    ,
    700 (6th Cir. 2006). In order to make this showing, we have held that this standard requires that the
    “[p]laintiff . . . do more than point to something the city could have done to prevent the unfortunate
    incident.” Kahlich v. City of Grosse Pointe Farms, 120 Fed. App’x. 580, 585 (6th Cir. 2005) (citing
    City of 
    Canton, 489 U.S. at 392
    (citation omitted)). Importantly, we only turn to this test once the
    plaintiff has established that the agents of the municipality have violated a constitutional right.
    Watkins v. City of Battle Creek, 
    273 F.3d 682
    , 687 (6th Cir. 2001). Thus, if the agents of a
    municipality have violated no constitutional right, the municipality can never be liable under § 1983
    for a failure to train. 
    Id. In the
    present case, we have concluded that no constitutional rights have been violated by any
    of the individual Defendant agents of the City of Riverside. We therefore conclude that the City of
    16
    No. 06-3546
    Riverside cannot be liable for failure to train and the district court properly granted summary
    judgment in favor of the municipality.
    V.        The district court properly granted Defendants’ motion for summary judgment with
    respect to Plaintiff’s state law claims against all Defendants
    A.     Standard of Review
    For the same reasons stated above, we review a district court grant of summary judgment de
    novo. 
    See supra
    Part I.A.
    B.     Analysis
    It is not clear from Plaintiff’s brief which state law claims are being brought against the City
    of Riverside and which ones are being brought against the individual Defendants. Oral argument
    did little to alleviate the confusion; thus, we will discuss all of these claims with respect to liability
    for both the municipality and the individual Defendants. Plaintiff brings a claim against Defendants
    under Ohio law for failure to protect, wrongful death and survivorship, and assault and battery. Both
    the individual Defendants and the City of Riverside claim immunity against all of the state law
    claims.
    1.      The City of Riverside
    Ohio Revised Code § 2744.02 provides, in relevant part, that:
    (A) (1) For the purposes of this chapter, the functions of political subdivisions are
    hereby classified as governmental functions and proprietary functions. Except as
    provided in division (B) of this section, a political subdivision is not liable in
    damages in a civil action for injury, death, or loss to person or property allegedly
    caused by any act or omission of the political subdivision or an employee of the
    political subdivision in connection with a governmental or proprietary function . . .
    (B) Subject to sections 2744.03 and 2744.05 of the Revised Code, a political
    subdivision is liable in damages in a civil action for injury, death, or loss to person
    17
    No. 06-3546
    or property allegedly caused by an act or omission of the political subdivision or of
    any of its employees in connection with a governmental or proprietary function, as
    follows:
    (1) Except as otherwise provided in this division, political subdivisions are liable
    for injury, death, or loss to person or property caused by the negligent operation of
    any motor vehicle by their employees when the employees are engaged within the
    scope of their employment and authority. The following are full defenses to that
    liability:
    (a) A member of a municipal corporation police department or any other police
    agency was operating a motor vehicle while responding to an emergency call and the
    operation of the vehicle did not constitute willful or wanton misconduct.
    OHIO REV . CODE § 2744.02.
    Section 2744.02 immunity clearly applies to the City of Riverside. However, Plaintiff argues
    that the operation of the motor vehicle exception to that immunity, embodied in § 2744.02(B)(1),
    applies to the present case because Cabaniss’ death resulted from the operation of a motor vehicle.
    The motor vehicle exception denies immunity to a municipality when a death or injury arises due
    to “negligent operation of any motor vehicle by their employees when the employees are engaged
    within the scope of their employment and authority.” § 2744.02(B)(1). Plaintiff cites Groves v.
    Dayton Pub. Schools for the proposition that failing to properly assist an impaired passenger exit a
    motor vehicle may be a violation of § 2744.02 under the motor vehicle exception. Groves, 
    725 N.E.2d 734
    (Ohio Ct. App. 1999)).         As the district court correctly observed, however, §
    2744.02(B)(1) still confers immunity upon a municipality for an injury that occurs once a passenger
    in a motor vehicle has exited that vehicle. See Glover v. Dayton Pub. Schools, 
    1999 WL 958492
    (Ohio Ct. App. 1999). Thus, this issue turns on a factual issue: whether Cabaniss was injured once
    he had already exited the vehicle or while he was in the process of exiting the vehicle. The district
    court concluded that because Cabaniss fell after he had already exited the vehicle, the City of
    18
    No. 06-3546
    Riverside is immune from state law claims. Even though there is conflicting testimony concerning
    when Cabaniss fell, it seems clear from the record that Cabaniss had exited the vehicle before falling.
    The district court therefore properly found immunity for the City of Riverside.
    2.      Individual Defendants
    Ohio Revised Code § 2744.03 provides, in relevant part:
    (A) In a civil action brought against a political subdivision or an employee of a
    political subdivision to recover damages for injury, death, or loss to person or
    property allegedly caused by any act or omission in connection with a governmental
    or proprietary function, the following defenses or immunities may be asserted to
    establish nonliability: . . .
    (6) In addition to any immunity or defense referred to in division (A)(7) of this
    section and in circumstances not covered by that division or sections 3314.07 and
    3746.24 of the Revised Code, the employee is immune from liability unless one of
    the following applies: . .
    (b) The employee’s acts or omissions were with malicious purpose, in bad faith,
    or in a wanton or reckless manner
    § 2744.03. Simply put, Defendants claim that they have immunity unless Plaintiff can show that
    Defendants acted with malicious purpose, in bad faith, or in a wanton or reckless manner. Plaintiff
    agrees that she may only be successful by making such a showing, but she contends that Defendants’
    behavior was reckless and wanton, and, in Carlton’s case, malicious. Plaintiff argues that Carlton,
    by spraying Cabaniss with pepper spray, acted maliciously, and that such maliciousness in that
    instance can be imparted upon him in all of his interactions with Cabaniss. Such an argument is not
    only unsupported by any case law, it is unpersuasive because, as we held earlier, we do not find that
    Carlton acted with excessive force in using pepper spray, which necessarily forecloses the argument
    that he acted maliciously. See St. John v. Hickey, 
    411 F.3d 762
    , 771 (6th Cir. 2005). Further,
    Plaintiff’s argument that the other Defendants acted recklessly and wantonly is basically a
    19
    No. 06-3546
    recapitulation of her argument that they acted with deliberate indifference. Because, as we
    concluded above, we are unconvinced that she has alleged facts sufficient to even make a showing
    of negligence, these facts do not show that Defendants behaved wantonly, reckless, maliciously, or
    in bad faith. Thus, Defendants are entitled to immunity against Plaintiff’s state law claims pursuant
    to § 2744.03.
    CONCLUSION
    For the forgoing reasons, we AFFIRM the district court grant of summary judgment in favor
    of Defendants on all claims.
    20
    

Document Info

Docket Number: 06-3546

Citation Numbers: 231 F. App'x 407

Filed Date: 4/6/2007

Precedential Status: Non-Precedential

Modified Date: 1/12/2023

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