Ward v. City of E. Cleveland

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REDRICK WARD, Plaintiff, v. CITY OF EAST CLEVELAND, et al., Defendants.

No. 1:22-CV-00372

United States District Court, N.D. Ohio, Eastern Division

April 5, 2023

MEMORANDUM OPINION AND ORDER

CHARLES E. FLEMING, DISTRICT COURT JUDGE

Before the Court is the Motion of Defendants, City of East Cleveland (“City”), Chief of Police Scott Gardner (“Chief Gardner”), and Officers Willie Warner-Sims, Kalin Berry and Derek Gerstenberger (“Officers”), to Dismiss Plaintiff's Complaint Under Civ. R. 12(b)(6), or in the Alternative Motion for Summary Judgment (ECF No. 3). Plaintiff, Redrick Ward, timely opposed Defendants' Motion. (ECF No. 4). Defendants filed a Reply Brief in support of their Motion. (ECF No. 5). For the reasons set forth below, Defendants' Motion is DENIED.

I. FACTUAL BACKGROUND

On March 7, 2022, Ward filed this civil rights action under 42 U.S.C. §§ 1983 and 1988 against the City, Chief Gardner, the Officers, and Officer Nicholas Foti. (ECF. No. 1, Compl., PagelD# 2-3). Ward claims that his Fourth and Fourteenth Amendment rights were violated on April 1, 2020, when Officers and Officer Foti beat and tased Ward during a traffic stop. (Id. at PagelD# 1-2). Ward also alleges that the City and Chief Gardner failed to adequately train and supervise Officers and Officer Foti, instead maintaining policies and practices that allowed the City's police to use excessive force without meaningful consequences. (Id. at PagelD# 16). Ward also brings state tort claims of assault, battery, and intentional infliction of emotional distress. (Id. at PageID# 13-14).

On April 1, 2020, Officer Foti pursued Ward after allegedly observing Ward driving on the sidewalk, and Officers joined the pursuit. (Id. at PageID# 5). After Ward pulled over, Officers and Officer Foti approached his vehicle with their guns drawn, and Ward alleges that he drove away out of fear for his life. (Id. at PageID# 6). Officer Foti and Officers pursued Ward, and he pulled over a second time. (Id.). Officer Foti used his baton to break Ward's driver's-side window, shattering glass onto Ward. (Id.). Ward drove away again, and Officers and Officer Foti pursued him a third time before using stop sticks to deflate two of Ward's tires. (Id. at PageID# 6-7). Officers then pulled Ward out of the car and threw him onto the ground. (ECF No. 1, PageID# 67). Officers Warner-Sims and Berry held Ward facedown on the ground with the hood of Ward's sweatshirt covering his head, while Officer Gerstenberger held Ward by the legs and handcuffed Ward's hands behind his back. (Id. at PageID# 7).

Officer Foti approached and tased Ward twice, while Officers beat Ward with their fists and batons. (Id.). Officer Foti approached Ward's head, and while Officers held him down, Officer Foti stomped on Ward's head; Defendants do not dispute this.^[1] (Id. at PageID# 7-8). Officer Foti then tased Ward again and Officers resumed beating him, striking his neck and shoulder. (Id. at PageID# 7-8). Ward also sustained an abrasion on his chin and a laceration on his cheek from broken glass. (Id.).

Ward was arrested and charged with having physical control of a vehicle while under the influence (a non-moving traffic violation), failure to comply with the lawful order of police, and fleeing. See City of East Cleveland v. Ward, No. 20TRD01249 (East Cleveland Mun. Ct.). The City ultimately dismissed the charge for physical control while under the influence. Id. (see June 3, 2020 docket entry).^[2] Ward's charges were further amended on June 3, 2020; the City removed the charges for failure to comply and fleeing law enforcement, and changed them to speeding and having an expired license plate. (Id.). Ward pleaded no contest to speeding and the expired license plate, and the court found him guilty of those two offenses on June 3, 2020. (Id.).^[3]

A “Use of Force” report is normally completed after the City's police officers use the type of force described in Ward's Complaint, but the Complaint states that neither Officers nor Officer Foti documented this incident in accordance with the City's policy. (Id. at PagelD# 8-10). Because no report was filed, the City claims that it did not know about the incident^[4]; that claim notwithstanding, the City did not investigate the circumstances of Ward's arrest until one year later, after Ward hired counsel and body-cam footage of Ward's arrest was given to television media. (Id; ECF No. 3, PagelD# 50). This was the second incident in which Officer Foti did not complete the “Use of Force” form during his employment with the City, having been disciplined previously for the same behavior. (ECF No. 1, PagelD# 9; ECF No. 3, PagelD# 50). After the City's investigation, the City charged Officer Foti with violating ECP Policy 119: Standards of Conduct (Class II Offense); Policy 102: Use of Force (Class I Offense); and Policy 132: Incident Reporting (Class II Offense). (ECF No. 1, PageID# 11-12). The charges were sustained following a Mayor's hearing, and Officer Foti was terminated. (Id. at PageID# 10-11; ECF No. 3, PageID# 49-50). Officer Foti was later rehired. (ECF No. 1, PageID# 12). Defendants allege that Officer Foti's rehiring resulted from a grievance Officer Foti filed with the Police Union. (ECF No. 3, PageID# 50).

Ward asserts that the City has a pattern of unconstitutional conduct, and that both the City and Chief Gardner are responsible for the customs and policies-and conduct-of the police officers they employ. (ECF No. 1, PageID# 4-5). Ward's Complaint cites numerous instances of the City's police officers engaging in deadly car chases and brutalizing local citizens during 2021. (Id.). The Complaint also refers to a popular investigative podcast, “Serial,” that dedicated an episode to the City's alleged police “misconduct and corruption,” including allegations of a patterned use of excessive force. (Id. at PageID# 5).

II. MOTION STANDARD

Defendants filed a Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. (ECF No. 3). To survive Defendants' Rule 12(b)(6) motion, Ward's Complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plausibility is not probability; plausibility “simply calls for enough fact to raise a reasonable expectation that discovery” will be fruitful. Bell Atl. Corp. v. Twombly, 550 U.S. 554, 556 (2007). Ultimately, a claim is facially plausible when the plaintiff pleads facts that allow the court to draw a reasonable inference that the defendant is liable for his actions. Iqbal, 556 U.S. at 678.

Defendants' Motion argues that they are entitled to qualified immunity. (ECF No. 3). The United States Supreme Court has expressed the importance of “resolving immunity questions at the earliest possible stage in litigation.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Sixth Circuit urges district courts deciding a motion to dismiss to consider qualified immunity by determining whether the plaintiff's complaint adequately alleges the commission of acts that violated clearly established law. Back v. Hall, 537 F.3d 552, 555 (6th Cir. 2008) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). To show that a right was clearly established, the facts alleged in the complaint should be sufficiently clear that a reasonable officer would know that his actions were unlawful under those circumstances. Daily Servs., LLC v. Valentino, 756 F.3d 893, 900 (6th Cir. 2014).

The Sixth Circuit has also cautioned district courts about granting Rule 12(b)(6) motions based on qualified immunity. Wesley v. Campbell, 799 F.3d 421, 433-34 (6th Cir. 2015). Generally, qualified immunity should be raised in a motion for summary judgment, not a motion to dismiss. Grose v. Caruso, 284 F. App'x. 279, 283 (6th Cir. 2008). In Grose, the plaintiff brought a § 1983 claim against correctional officials for violating her constitutional rights, and the defendants moved to dismiss under Rule 12(b)(6) based on qualified immunity. Id. at 280. The motion was denied by the district court and the decision affirmed by the Sixth Circuit because dismissal on that basis was premature; the plaintiff's complaint set forth sufficient allegations to trigger § 1983 liability. Id. at 283. See also McCombs v. Granville Exempted Vill. Sch. Dist., No. 2:07-cv-00495, 2009 WL 467066, *7-8 (S.D. Ohio Feb. 24, 2009) (denying motion to dismiss since the complaint alleged a constitutional violation, and at that point in the proceedings it would be premature to dismiss based on qualified immunity).

Importantly, “matters outside of the pleadings are not to be considered by a court in ruling on a 12(b)(6) motion to dismiss.” Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997). If the parties refer to matters outside the pleadings and the Court considers those matters when ruling on the motion, it should treat the motion as one for summary judgment under Fed.R.Civ.P. 56. Jones v. City of Cincinnati, 521 F.3d 555, 557 (6th Cir. 2008). The Court may consider the complaint and its exhibits, public records, items in the record, and exhibits attached to the defendant's motion to dismiss if they are referenced in the complaint and central to the plaintiff's claims without converting the motion to a summary judgment motion. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008).

If this Court were to consider all of Defendants' exhibits to their Motion, it must also convert the motion into one for summary judgment. (ECF No. 3). Defendants' Motion includes as exhibits: (A) the Police Report, which includes a letter dated almost one year after the incident; (...