Saalim v. Walmart, Inc.

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:21-cv-01481—James R. Knepp II, District Judge.

ARGUED: Thomas J. Walsh II, KISLING NESTICO & REDICK, LLC, Akron, Ohio, for Appellant. Taylor C. Knight, REMINGER CO., L.P.A., Toledo, Ohio, for Walmart Appellees. Kevin A. Pituch, LUCAS COUNTY PROSECUTOR'S OFFICE, Toledo, Ohio, for Lucas County Appellees. ON BRIEF: Thomas J. Walsh II, KISLING NESTICO & REDICK, LLC, Akron, Ohio, Hassanayn M. Joseph, JOSEPH LAW, LTD., Toledo, Ohio, for Appellant. Taylor C. Knight, Hannah R. Duschl, REMINGER CO., L.P.A., Toledo, Ohio, for Walmart Appellees. Kevin A. Pituch, Denny A. Lyle, Andrew K. Ranazzi, LUCAS COUNTY PROSECUTOR'S OFFICE, Toledo, Ohio, for Lucas County Appellees.

Before: BATCHELDER, CLAY, and GIBBONS, Circuit Judges.

CLAY, J., delivered the opinion of the court in which GIBBONS, J., joined, and BATCHELDER, J., joined in part. BATCHELDER, J. (pp. 1016-19), delivered a separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge.

Plaintiff Lufti Said Saalim appeals the district court's two orders granting judgment on the pleadings in favor of Defendants Jeffrey Bretzloff, Justyn McNett, Michael Navarre, and the Lucas County Board of Commissioners, and sua sponte dismissing Defendants Walmart, Inc. and Wal-Mart Stores, East, LP. Saalim alleged violations of his Fourth and Fourteenth Amendment rights under 42 U.S.C. § 1983 and also asserted various violations of Ohio state law. For the reasons set forth below, we AFFIRM in part, REVERSE in part, and REMAND the case for further proceedings consistent with this opinion.

On April 12, 2020, Saalim drove two individuals in his cab to a Walmart Supercenter in Toledo, Ohio to pick up prescriptions. After dropping off his riders, he waited in a loading zone for them to return from the pharmacy. While parked, a Walmart employee approached him, and Saalim told this employee that he was parked while waiting for his riders to return from the pharmacy. Shortly after this interaction, Bretzloff, who was working as a private security guard for Walmart while wearing his full sheriff's uniform,¹ approached Saalim's car. According to the later-filed police report, the Walmart employee had asked Bretzloff to approach Saalim.

Bretzloff greeted Saalim, and for approximately the first thirty seconds of their encounter, Bretzloff and Saalim engaged in a back and forth as to whether Saalim would produce his driver's license for inspection. Bretzloff first asked Saalim if he had a license. Saalim replied that he did, and asked Bretzloff why he needed it. Bretzloff responded "[be]cause now I'm now contacting you so now I need to see your driver's license." Compl., R. 1, Page ID #12. Once again, Saalim asked why Bretzloff needed to see his license. In response, Bretzloff told Saalim that he would make the encounter an "official stop" if Saalim did not cooperate and produce his license. Id. at Page ID #13. Bretzloff then told Saalim that he was asked to approach the cab because Saalim was parked in a no-parking zone. Saalim explained that he was waiting on his riders to pick up prescriptions; and again, Bretzloff asked him for his identification. Saalim eventually indicated that he would produce his identification, but again asked why Bretzloff needed it.

A little over thirty seconds into the interaction and without a verbal warning to Saalim, Bretzloff opened the driver's side door of Saalim's cab, grabbed his left arm with both hands, and attempted to remove him from the cab. Saalim then asked Bretzloff to stop forcing him out of the cab, and asked Bretzloff what he had done wrong. Bretzloff then drew his taser, pointed it at Saalim, and yelled at Saalim to get out of the cab. Saalim remained in the cab, and Bretzloff warned that he would tase him.

Saalim got out of the cab about a minute after the interaction had begun.

When Saalim exited the car, Bretzloff "shoved him to the side" of the cab. Id. at Page ID #14. Saalim turned to Bretzloff to continue asking Bretzloff what he had done wrong, and Bretzloff pushed his taser into Saalim's abdomen and yelled "stop resisting!" Id. While Saalim's hands were on top of the cab, and his back was facing Bretzloff, Bretzloff pulled out handcuffs. At this point, Bretzloff's body camera became detached and fell to the ground face-up. It continued to film from the ground. Saalim apparently turned to face Bretzloff again, as the complaint alleges that Saalim was "standing against" the cab "in a non-threatening pose with both hands visible and empty." Id. at Page ID #15 Bretzloff then tased Saalim for approximately nine seconds. Saalim fell backwards into the cab. After the nine seconds, Bretzloff again yelled "stop resisting!" to which Saalim responded, "I'm not resisting!" Id.

Bretzloff then tased Saalim again, this time, in drive-stun mode.² This happened approximately eight seconds after the first tasing. Bretzloff tased Saalim for about seven seconds, during which time Saalim screamed in pain and exclaimed multiple times that he was a diabetic. Immediately after tasing him, Bretzloff again yelled "stop resisting!" to which Saalim replied, "I'm not resisting!" Id. Bretzloff then placed Saalim in handcuffs. When Saalim was in handcuffs, Bretzloff yelled at him to "sit down" and then forced him to the ground, causing Saalim to cry out in pain. Id. at Page ID #16.

At no point in this approximately three-minute interaction did Bretzloff tell Saalim that he was under arrest. After sitting on the ground while handcuffed, Saalim asked Bretzloff why he was arrested, to which Bretzloff replied "first of all, resisting arrest." Id. Eventually, Saalim was put in the back of a police car, and, after emergency medical services attended to him at the scene, he was transported to a hospital for medical care before being detained at the Lucas County Corrections Center.

Saalim was charged with menacing, resisting arrest, obstructing official business, and a parking violation. The menacing charge was reduced to disorderly conduct, and all other charges were dismissed. Saalim pleaded no contest to the disorderly conduct charge. After Saalim's plea, the Lucas County Sheriff's Office Internal Affairs Bureau investigated the incident between Bretzloff and Saalim, and found that Bretzloff had violated the Sheriff's Office use of force policy.

On July 29, 2021, Saalim filed his complaint against six named Defendants: (1) Walmart, Inc.; (2) Wal-Mart Stores, East, LP; (3) the Lucas County Board of Commissioners, on behalf of Lucas County; (4) Michael Navarre, in his official capacity as Lucas County Sheriff; (5) Bretzloff; and (6) Justyn McNett, a member of the Lucas County Sheriff's Office and the coordinator of Bretzloff's work at Walmart. Against Bretzloff individually, he brings a claim under 42 U.S.C. § 1983 for the violation of his Fourth and Fourteenth Amendment rights and state law claims for assault, battery, false arrest and imprisonment, and intentional infliction of emotional distress. He also alleges derivative claims

against the other Defendants. Namely, he brings a § 1983 municipal liability claim against Sheriff Navarre and the Lucas County Board of Commissioners and state law claims for negligent hiring, supervision, training and retention, and vicarious liability against Walmart, Inc. and Wal-Mart Stores, East, LP (the "Walmart Defendants") and McNett. Finally, he alleges a separate cause of action for punitive damages under Ohio law against Bretzloff, McNett, and the Walmart Defendants. In essence, Saalim's complaint alleges federal and state law claims against Bretzloff, a § 1983 municipal liability claim against Sheriff Navarre and Lucas County Board of Commissioners, and derivative state law claims against the Walmart Defendants and McNett.

All named parties filed answers to Saalim's complaint, one on behalf of the Lucas County Defendants—Bretzloff, Navarre, McNett³ and the Lucas County Board of Commissioners—and one on behalf of the Walmart Defendants. The Lucas County Defendants filed their first motion for judgment on the pleadings at the same time as their answer. In this motion, they argued that the Lucas County Board of Commissioners was entitled to judgment on the pleadings because it did not supervise the Sheriff's Office, and that Bretzloff was entitled to judgment on the pleadings as to Saalim's false arrest and imprisonment claims because they were barred by Saalim's no contest plea to disorderly conduct. The district court granted the motion, and, on appeal, Saalim has only challenged the district court's decision as to the false arrest and imprisonment claims.

The Lucas County Defendants then filed a second motion for judgment on the pleadings seeking dismissal of the remainder of Saalim's claims against them. They argued that (1) Bretzloff was entitled to qualified immunity against Saalim's claim under § 1983; (2) Saalim's remaining state law claims—assault, battery, and intentional infliction of emotional distress—were barred by the statute of limitations; (3) all claims against Navarre and McNett should be dismissed because they were derivative of Saalim's claims against Bretzloff; and (4) the punitive damages claim should be dismissed because it is a remedy, not a cause of action. The district court granted the motion and dismissed the...