Kilnapp v. City of Cleveland

1

JENNIFER KILNAPP, Plaintiff-Appellee, v. CITY OF CLEVELAND, OHIO, et al., Defendants, BAILEY GANNON, in his official and personal capacity, Defendant-Appellant.

No. 22-4059

United States Court of Appeals, Sixth Circuit

July 21, 2023

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Before: COLE, CLAY, and KETHLEDGE, Circuit Judges.

OPINION

CLAY CIRCUIT JUDGE.

Plaintiff Jennifer Kilnapp commenced this action under 42 U.S.C. § 1983 and alleges that Defendants violated her rights under the Fourth and Fourteenth Amendments to be free from the use of excessive force in the absence of a suspect posing an immediate threat to police officers or others. Defendant Bailey Gannon appeals the district court's denial of his motion for judgment on the pleadings filed under Federal Rule of Civil Procedure 12(c). For the reasons set forth below, we AFFIRM.

I. BACKGROUND

A. Factual History

The following factual summary is based upon the allegations in Kilnapp's complaint. See See Hudak v. Elmcroft of Sagamore Hills, 58 F.4th 845, 850 (6th Cir. 2023) (providing factual summary "[a]s alleged in the complaint"); see also S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)("For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.").

On July 20, 2020, Kilnapp and Gannon, both Cleveland police officers, responded to a call reporting that there was an emotionally disturbed man with a gun in a boarding home. Gannon was a rookie, and Kilnapp was his field training officer. Upon arrival on the scene, Kilnapp and Gannon learned that the disturbed man, Darryl Borden, was in the second-floor bathroom, and they proceeded up the stairs to the hallway to confront him. Gannon stood by the bathroom door while Kilnapp stood a few feet behind him. Gannon opened the bathroom door and Borden was allegedly "holding a firearm but it was down at his side in one hand, pointed towards the ground. It was not raised or pointed at Gannon."^[1] (Compl., R. 1, Page ID # 5).

According to the complaint, despite the fact that Borden did not threaten or step toward either officer, Gannon "panicked" and "spun back out of the doorway, where he was no longer in the line of sight or fire between himself and Borden." (Id. at Page ID # 6). Gannon did not make any commands for Borden to get on the floor, proceed out of the bathroom, or drop his weapon, and Borden remained in the bathroom while Gannon retreated. During this time, Kilnapp was standing "near the top of the staircase." (Id.). "As [Gannon] ran, [he] pointed his gun over his head behind him-in the opposite direction he was running-and began shooting." (Id.). Gannon was purportedly "not looking where he was shooting." (Id.). After Gannon's shots, Borden fired his gun.

Kilnapp supports her allegation that Gannon fired first by pointing to the trajectory tracing and audio testing of Gannon's body camera. Kilnapp was hit in the right forearm by one of Gannon's fired bullets, and the bullet fragmented and punctured her bicep; Kilnapp was also struck with a bullet in her armpit which traveled through her chest to near her spine. Kilnapp was able to exit the home on her own, and was taken to the hospital where surgeons were able to remove the bullet fragment near her spine.

The Ohio Bureau of Criminal Investigations ("BCI") conducted a forensic examination of the scene, which included laser scans and 3D modeling to determine the bullet trajectories. Based on BCI's model, the investigators determined that the bullet entered "the wall near the top of the staircase on a slight downward angle" and "[b]ecause Gannon was running down the stairs when he fired . . . Gannon must have been holding his gun above his head when he fired." (Id. at Page ID # 8). BCI modeling also provided Kilnapp's approximate vantage point when Gannon began shooting and the path of Borden's bullets. "The forensic examination at the scene show[ed] no bullets from Borden fired even remotely in Kilnapp's direction .... Borden fired from inside the bathroom into the bathroom door before the bullets landed in the wall opposite him. Kilnapp was never in Borden's line of fire." (Id. at Page ID # 9). No body camera footage suggests that Borden shot at Kilnapp. (Id.). Gannon "admits that a bullet from his service weapon inadvertently struck [Kilnapp.]" (Answer, R. 14, Page ID # 70).

The City of Cleveland charged Borden with attempted murder, based on its belief that Borden shot Kilnapp. Kilnapp alleges that the Cleveland division of police and the prosecutor's office falsely reported that Borden intended to ambush the officers from the bathroom, and that they continued to claim that Borden shot Kilnapp, despite BCI modeling, ballistic testing, and body camera footage that established that this narrative was not true. Borden's attempted murder charges were dropped in June of 2021, nearly a year after the shooting.

In March of 2021, the Cleveland chief of police suspended Kilnapp for neglecting to turn on her body camera before entering the house on the day of the shooting. According to Kilnapp this type of infraction typically results in counseling, not suspension. Meanwhile, Gannon faced no consequences for providing a misleading description of the events that occurred on the day Kilnapp was shot, nor for mishandling his firearm. Kilnapp was unable to return to work for two years and is no longer a full-time patrol officer. Kilnapp's injury caused nerve damage in her right arm, and she continues to experience "physical pain, weakness, numbness, and tingling in her arm, wrist, and hand;" she also suffers from post-traumatic stress disorder. (Compl, R. 1, Page ID # 12). It took a year for Kilnapp to regain her full range of motion.

B. Procedural History

Kilnapp filed her complaint on July 13, 2022, against Defendants City of Cleveland ("the City"); Dornat Drummond, the City of Cleveland's chief of police, in his official capacity; and Gannon in his official and personal capacity. Kilnapp brought her complaint under 42 U.S.C. § 1983 and alleged Gannon used excessive force in violation of the Fourth and Fourteenth Amendments. Defendants filed separate motions. On September 16, 2022, the City, Drummond in his official capacity, and Gannon in his official capacity, filed a motion to dismiss Kilnapp's claims pursuant to Federal Rule of Civil Procedure 12(b)(6). On September 22, 2022, Gannon, in his individual capacity, filed an answer and a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). On December 9, 2022, the district court denied both motions; but dismissed claims against Drummond and Gannon in their official capacities as duplicative of claims against the City. The City did not appeal the denial of its motion to dismiss. This appeal concerns only the district court's denial of the motion for judgment on the pleadings that Gannon filed in his individual capacity.

Gannon argued in the court below that he "is shielded from suit by qualified immunity[.]" (Order, R. 29, Page ID # 403). Gannon also asserted immunity under the common-law Fireman's Rule and the Fellow Servant Doctrine under Ohio's Worker's Compensation System. The district court determined that factual disputes may exist as to whether Gannon opened fire first and "whether Defendant's actions were intentional or inadvertent;" however, at this early stage of litigation, the district court held that Kilnapp met her burden in plausibly alleging a Fourth and Fourteenth Amendment violation. (Id. at Page ID # 404-05). The district court found that because federal qualified immunity did not apply, the state and common-law immunities are necessarily denied as well. See Felder v. Casey, 487 U.S. 131, 138 (1988) ("[W]e have held that a state law that immunizes government conduct otherwise subject to suit under § 1983 is preempted, even where the federal civil rights litigation takes place in state court, because the application of the state immunity law would thwart the congressional remedy[.]"). ^[2] In sum, the district court held that the complaint plausibly alleged that "Defendant Gannon used excessive and unreasonable deadly force under the circumstances, and that Defendant Gannon could not have reasonably believed the use of deadly force was lawful." (Order, R. 29, Page ID # 405-06). Gannon timely appealed.

II. DISCUSSION

A. Standard of Review

Pursuant to Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). "We review de novo a judgment on the pleadings granted pursuant to Rule 12(c) . . . using the same standard that applies to a review of a motion to dismiss under Rule 12(b)(6)." Moore, Successor Tr. of Clarence M. Moore &Laura P. Moore Tr. v. Hiram Twp., 988 F.3d 353, 357 (6th Cir. 2021) (citing Roger Miller Music, Inc. v. Sony/ATVPubl'g, LLC, 477 F.3d 383, 389 (6th Cir. 2007)).

A motion to dismiss is properly granted if the plaintiff "fail[ed] to state a claim upon which relief can be granted[.]" Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the plaintiff must allege facts that are sufficient "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v....