Larry Tawney, Jr. v. Portage County, Ohio ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0240n.06
No. 21-3809
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
)
LARRY TAWNEY, JR.,
) FILED
Plaintiff-Appellant, ) Jun 15, 2022
) DEBORAH S. HUNT, Clerk
v. )
)
PORTAGE COUNTY, OHIO; BILL BURNS, )
DAVID W. DOAK, DOUG DRAKE, MATT )
HOLBROOK, JOHN HOSTLER, JASON JOY, ) ON APPEAL FROM THE
DALE KELLY, SHAWN LANSINGER, VINCENT ) UNITED STATES DISTRICT
T. LOMBARDO, DEREK MCCOY, BRYAN ) COURT FOR THE NORTHERN
MORGANSTERN, ERIC NOELL, JUSTIN ) DISTRICT OF OHIO
SCHIFKO, MIKE SKILTON, DAN SMITH, )
CAMERON STOCKLEY, ROBERT SYMSEK, ) OPINION
BARRY THRUSH, CHAY VUE, AUSTIN )
WILSON, JANICE CLARK, CIRCE HARTMAN, )
ERICA JARVIS, CLAUDETTE MCCULLOUGH, )
and SUSANNE SATTLER, in their official and )
individual capacities, )
Defendants-Appellees. )
)
Before: MOORE, STRANCH, and LARSEN, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Larry Tawney, Jr. alleges that several correctional
officers or sheriff’s deputies viciously assaulted him while he was detained in the Portage County
Jail. He sued the county, the county sheriff, and twenty-three correctional officers and deputies
who he alleges may have either been involved in or failed to stop the attack. Tawney brought
claims under 42 U.S.C. § 1983 for violations of his Eighth Amendment rights against various
combinations of the defendants, a Monell claim against the county, and a state law claim for
intentional infliction of emotional distress against the individual defendants. On the defendants’
No. 21-3809, Tawney v. Portage County
summary judgment motion, the district court found that video and photographic evidence from the
night of and morning after the alleged beating squarely contradicted Tawney’s version of events.
Explaining that no reasonable jury could conclude that the attack occurred, the district court
granted summary judgment to the defendants. For the reasons set out below, we AFFIRM the
district court’s judgment.
I. BACKGROUND
We begin with the allegations of the complaint. Larry Tawney, Jr. spent the night of July
12, 2018, in the Portage County Jail awaiting transport to the Lorain Correctional Institution.
Tawney alleges that between 10 p.m. that evening and 5 a.m. on July 13, correctional officers or
sheriff’s deputies wearing masks and tactical gear entered his cell on the Jail’s second floor and
beat him to the point that he lost consciousness. Among the injuries claimed were lacerations to
his mouth, a dislocated jaw, internal bleeding, and blood clotting. Tawney alleges that, while still
unconscious, he received stiches on the outside and inside of his mouth. He asserts that he woke
on July 13 with a bloody mouth from the stitches, prompting him to leave a “kite” requesting
medical attention for his injuries with the Jail.
That same morning, correctional officers drove Tawney to the Lorrain Correctional
Institution. Tawney alleges that upon his arrival he discussed the assault with the intake nurse, but
she refused to take photographs of his injuries or to note on the intake form his bruises and other
injuries. When he was sent to the Lake Erie Correctional Institution in September 2018, Tawney
continued to seek medical care related to the alleged assault. He claims that the treatment he
received was inadequate.
Tawney brought this federal civil rights lawsuit in July 2020, alleging claims against
Portage County, the Portage County Sheriff David Doak in his official and individual capacities,
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No. 21-3809, Tawney v. Portage County
the Sheriff’s chief deputy Dale Kelly in his official and individual capacities, and twenty-three
correctional officers and sheriff’s deputies in their official and individual capacities.1 His first five
counts are brought under 42 U.S.C. § 1983 and allege that the defendants violated his Eighth
Amendment rights by, among other actions, using excessive force, destroying surveillance footage,
failing to adequately train or supervise subordinates who participated in the beating, failing to
intervene, acting with deliberate indifference to his serious medical needs, and failing to report the
assault. Tawney also brought a claim against Portage County under Monell v. Department of
Social Services, 436 U.S. 658 (1978), and a final claim under Ohio law against the individual
defendants for the intentional infliction of emotional distress.
Portage County and the individual defendants argue that Tawney fabricated the attack. To
refute Tawney’s claim that the incident actually occurred, they attached Tawney’s medical and
video records from July 12 to 13 to their answer to the complaint and then moved for judgment on
the pleadings pursuant to Rule 12(c). The district court converted that motion into a motion for
summary judgment on one issue—the fact of the attack—and required the refiling of the proffered
exhibits to comply with the evidentiary quality standard of Rule 56. The court also allowed limited
discovery on whether the incident in question had occurred. Tawney responded in opposition to
the motion for summary judgment but did not conduct further discovery.
After full briefing, the district court granted summary judgment to the defendants. The
court declined to consider the July 13, 2018 intake medical records from the Lorain Correctional
Institution as evidence that Tawney was uninjured, and therefore not attacked on the night of July
1
The defendant correctional officers and deputies are: Robert Symsek, John Hostler, Derek McCoy, Mike Skilton,
Circe Hartman, Jason Joy, Dan Smith, Susanne Sattler, Bill Burns, Doug Drake, Vince Lombardo, Justin Schifko,
Bryan Morganstern, Claudette McCullough, Janice Clark, Matt Holbrook, Chay Vue, Barry Thrush, Cameron
Stockley, Shawn Lansinger, Eric Noell, Erica Jarvis, and Austin Wilson.
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12, because Tawney alleged that the intake nurse had refused to document his injuries. But the
district court did consider the newly authenticated video evidence and photographs of Tawney
from his intake at the Lorain Correctional Institution. Concluding that the video and photographic
evidence blatantly contradicted Tawney’s allegation of assault, the court found that there was no
genuine dispute of material fact regarding the assault’s occurrence, and no reasonable jury could
return a verdict in Tawney’s favor. Tawney timely appealed.
II. ANALYSIS
We review a district court’s grant of summary judgment de novo. Morgan v. Fairfield
Cnty., 903 F.3d 553, 560 (6th Cir. 2018). Summary judgment is appropriate if, viewing the
evidence in the light most favorable to the non-moving party and drawing all reasonable inferences
in that party’s favor, “there is no genuine issue as to any material fact” and “the moving party is
entitled to a judgment as a matter of law.” Harris v. Bornhorst, 513 F.3d 503, 509 (6th Cir. 2008)
(quoting Fed. R. Civ. P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). A fact is material if its resolution “might affect the outcome of the suit,” and genuine if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. Viewing the evidence in the light most favorable to the non-moving
party “usually means adopting the plaintiff’s version of the facts.” Coble v. City of White House,
634 F.3d 865, 868 (6th Cir. 2011). There is a limited exception to our standard summary judgment
analysis, however, when video evidence exists and “so utterly discredit[s],” id., the plaintiff’s story
that “no reasonable jury could believe it,” Scott v. Harris, 550 U.S. 372, 380 (2007).
The parties offered only a handful of records on summary judgment. The defendants
provide surveillance videos of Tawney’s activity in the jail in the early hours of July 13, 2018,
from a little after midnight to about 11:30 a.m. that morning. James Bauerle, the Director of
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No. 21-3809, Tawney v. Portage County
Engineering for Exacq Technologies and one of the authors of Portage County’s Video
Management System software, provided an affidavit to authenticate the videos. The roughly eight
hours of timestamped video, however, do not include footage of the first two hours—10 p.m. to
midnight—of the period in which Tawney alleges that various defendants assaulted him. The
defendants also presented Lorain Correctional Institution’s intake records and photographs from
July 13, the morning after the alleged attack. These records show that Tawney exhibited no
medical issues that would be consistent with the alleged physical assault. Tawney filed affidavits
from himself, his sister, a fellow detainee who claimed to have heard the alleged attack, and a
private investigator. His sister’s affidavit included a purported medical “kite” that Tawney filed
with the County Jail the morning after the assault, but no authenticating documentation. The
defendants presented an affidavit from Lieutenant Bryan Morgenstern asserting that the Portage
County Jail did not and does not use medical kites like the one Tawney proffered. Tawney also
offered the Jail’s records, which indicate that he was detained in a second-floor cell rather than the
first-floor cell shown on the videos.
This is a rare case in which the video evidence—even as incomplete as it is—so clearly
contradicts a plaintiff’s version of events that summary judgment is proper. From a little after
midnight on the morning of July 13, 2018, until around 4 a.m., the videos show correctional
officers making occasional rounds across the two tiers of the visible jail cells, but no officer or
deputy entering any of the cells. Tawney exits cell number 107 on the first floor around 5:30 a.m.,
and then returns soon after. Although seen only from a distance, nothing about his appearance or
gait suggests injury. His face is not bloody, and he walks normally. Around 9:30 a.m. that same
morning, Tawney exits his first-floor cell again, and within fifteen minutes is shown mopping
outside of his cell door and speaking with others housed in the jail. Tawney appears in other videos
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No. 21-3809, Tawney v. Portage County
of that morning walking along a hallway beside a correctional officer. Again, his gait appears
normal and there are no visible signs of injury. In one video, Tawney sits in a reception area eating
a sandwich from a bagged lunch. He does not appear upset or in pain.
Of course, not all individuals react to trauma in the same way. But recall Tawney’s
allegations: not only was he beaten, but he was also kicked in the head until he fell unconscious
and awoke with stitches both inside and outside his mouth. The video and photographic evidence
disproves that account. In the security camera footage from July 13, there is no obvious blood,
stitches, or wounds near Tawney’s mouth. The photographs from the Lorain Correctional
Institution taken on July 13 soon after Tawney’s arrival at the prison similarly offer no suggestion
that he recently suffered any trauma to his mouth or face. The front and side views of Tawney’s
face show no signs of injury.
Nevertheless, we must be careful with video evidence. We apply the normal summary
judgment framework if there is a sign that the video evidence is altered or if other evidence shows
that what the video “depicts differs from what actually happened.” See Scott, 550 U.S. at 378.
Tawney asserts that the video evidence is doctored. He first asserts that the defendants’ videos are
not reliable because a roster history from the Jail shows, and his memory supports, that he was
housed on the second floor of the jail rather than in cell 107 as the videos depict. He offers the
affidavit of Benjamin Robinson, another man incarcerated in the Portage County Jail in July 2018,
who asserts that Tawney slept in a second-floor cell during that period. Robinson states that one
night he heard footsteps going into Tawney’s cell and “loud thumping noises that [he] would
associate with people hitting someone.” Tawney suggests that this evidence leaves doubt about
whether the videos were taken on July 12 and 13, 2018. Tawney also questions the reliability of
the videos based on the skips and jumps in the footage, which he asserts are evidence of editing.
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These discrepancies between the video and the roster and the time jumps on the videos,
however, are insufficient to create a genuine issue of material fact. Tawney leaves unrefuted the
evidence in the record establishing that the videos offer a genuine and accurate depiction of the
night in question. Bauerle’s declaration authenticating the videos confirms that the videos were
recorded with Exacq’s software; that, based on a standard cryptographic algorithm, the videos
were not edited, altered, or tampered with after they were exported from the server; and that it
would be almost impossible for the defendants to edit, alter, or tamper with the files before export.
Bauerle also explains that the jumps in the video arise because the security cameras at the Portage
County Jail record only in response to motion. The anomalies Tawney identifies are not evidence
of tampering, but instead the result of imprecise motion sensing from the cameras. The difference
between Tawney’s cell number listed on the roster and his location in the video raises some
questions about the accuracy of the Portage County Jail’s recordkeeping, but the fact remains that
the defendants have presented an affidavit from the software developer explaining that the videos’
cryptographic algorithm confirms the date and unedited state of the video evidence. Given the
unrefuted authenticity and accuracy of the videos, we may rely on those videos in interpreting the
events of July 13.
Moreover, Tawney does not dispute the authenticity of the intake photographs from Lorain,
taken on the day after the alleged beating. Tawney’s primary argument against the evidentiary
value of the photographs is that they were not images taken for the purpose of documenting
medical issues or injuries. But this does not undermine what the photographs clearly show:
Tawney was without obvious facial injuries that would comport with being beaten and having
multiple stitches both inside and outside his mouth.
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With the evidence clearly contradicting that Tawney suffered any injury on July 13, 2018—
and nothing raising genuine doubts about the authenticity and accuracy of that evidence—the
district court was correct in granting the defendants summary judgment.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s grant of summary judgment
in favor of all defendants.
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