Zuress v. City of Newark

ASHLEY ZURESS, Plaintiff, v. CITY OF NEWARK, et al., Defendants.

Case No. 2:17-cv-866

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

September 26, 2019

JUDGE GEORGE C. SMITH

Magistrate Judge Vascura

OPINION AND ORDER

This matter is before the Court upon Defendants' Motion for Summary Judgment (the "Motion") (Doc. 21). The Motion is fully briefed and ripe for disposition. For the following reasons, the Motion is GRANTED.

I. BACKGROUND

On March 2, 2016, Defendant Officer David Burris was on patrol and was accompanied by his canine partner, Ike, and Officer April Hunt, who was in field training. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #128). At the time, the residence located at 48 Willowood Road, in which Brandy Grooms resides, was a known drug house. (Id. at PAGEID #121; Doc. 21-1, Ex. E, Initial Incident Report at PAGEID #208). Officer Burris had learned from a confidential informant ("CI") that there was drug activity at the home, which included cars frequently coming and going at odd hours of the night and individuals carrying items out of the house; conduct suggestive of illegal activity. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #121, 123). Jeff Grooms ("Grooms"), Brandy's brother, was under surveillance as he had an outstanding warrant for unpaid child support. (Id. at PAGEID #124). Officer Burris was generally familiar with Grooms because Grooms had been in and out of jail several times. (Id.). Officer Burris learned from his CI that Grooms had been staying at the Willowood home, so the house was also being monitored in an effort to detain Grooms on the outstanding warrant. (Id. at PAGEID #125). Additionally, Grooms' sister had informed Officer Burris that Grooms was a drug addict, and Officer Burris had received information from the police department that Grooms was connected to an armed robbery of a gas station. (Id. at PAGEID #124-27).

While on patrol on March 2, 2016 Officer Burris' CI informed Burris that a man driving a tan Jeep Renegade arrived at the Willowood residence. (Id. at PAGEID #128). Upon receiving this information, Officer Burris and Officer Hunt went to the residence for surveillance purposes. (Id.). Officer Burris saw the Jeep leave the residence and began following the vehicle. (Id. at PAGEID #129). Shortly thereafter, Officers Burris and Hunt turned on their emergency lights to initiate a traffic stop for failure to properly signal a turn. (Id.). After the officers turned the emergency lights on, the Jeep slowed down but passed several locations where it could have stopped. (Id. at PAGEID #130). Officer Burris believed this may have indicated the occupant(s) of the car were hiding or ingesting items, such as drugs. (Id.). As soon as the Jeep stopped, Grooms jumped from the vehicle and fled on foot. (Id.; Video #1)¹. Officer Burris jumped out of the cruiser and deployed Ike from the car; by the time Officer Burris was out of the car and Ike had joined Officer Burris, Grooms was out of sight. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #130; Video #1). Officer Burris and Ike did not chase Grooms because they lacked theproper tracking equipment at the time. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #130-31). During the time Grooms was fleeing, Officer Hunt called for backup. (Id. at PAGEID #130).

At this moment, the Jeep, which had been stopped for a total of 19 seconds, began pulling away from the police cruiser by an unknown driver (until this moment Officer Burris did not know there were multiple occupants in the car). (Id. at PAGEID #131; Video #1). Officer Burris and Ike returned to the police cruiser, and Officer Hunt, driving, pursued the Jeep. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #131).²

Officers Burris and Hunt followed the Jeep's path and turned onto another street upon seeing the flashing lights of another police cruiser. (Id. at PAGEID #135). Officer Jon Purtee had intercepted the Jeep, pulled the Jeep over, and assumed a shooting stance behind the driver's side door of his cruiser. (Id.). Officer Purtee commanded Zuress to exit the vehicle, and she did so facing the officers. (Id.; Video #2). Officers Burris and Hunt exited their cruiser and assumed covered positions behind Officer Purtee's cruiser. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #136). For their safety, Officer Purtee commanded Zuress to turn around so she was not facing them. (Id. at PAGEID #135-36). Zuress was non-compliant with these orders; Officer Purtee ordered Zuress to "face away" five times before she faced away from the officers. (Video #2). After initially turning around, Zuress continued being non-complaint by twisting, turning around, and looking back at the officers. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #136; Video #2). Zuress was arguing with Officer Purtee, waving her hands around, and at one point reached down towards her waistband to adjust her shirt. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #137; Video #2). At this point, Officer Burris instructed Officer Hunt to takehis spot behind Officer Purtee's passenger side cruiser door, and Officer Burris retrieved Ike from his own cruiser. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #136).

Once Officer Burris retrieved Ike from the car, Officer Purtee warned Zuress that the dog would be released if she did not cooperate. (Id. at PAGEID #147; Video #4). Roughly 1-2 seconds after warning Zuress, Officer Burris released Ike.³ (Id. at PAGEID #137; Video #4). Officer Burris, after releasing Ike, advanced upon Zuress directly behind Ike. (Id. at PAGEID #141-42; Video #4). Ike, as he is trained, first jumped into the car to look for additional suspects. (Video #4). When Officer Burris arrived at Zuress he grabbed ahold of one of Zuress' arms. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #142; Video #4). Almost simultaneously with Officer Burris grabbing Zuress' arm, Ike exited the vehicle and assisted in the apprehension of Zuress by biting and holding Zuress' arm. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #137; Video #4). During this sequence, Zuress was taken to the ground. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #143; Video #4).

Once Zuress was on the ground, Officer Hunt and Officer Purtee advanced from their covered positions, and on instruction from Officer Burris, first checked the Jeep for additional passengers. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #143; Video #4). After it was clear the Jeep contained no additional passengers, Officer Purtee began to assist Officer Burris with controlling Zuress. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #143; Video #4). Once Officer Purtee was in position to help control Zuress, Officer Burris moved to Ike to release Ike's bite and hold from Zuress' arm. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #143; Video #4). Once Ike released his bite and hold, Officer Burris moved Ike away from Zuress andthe other officers. (Doc 21-1, Ex. A, Dep. of David Burris at PAGEID #143; Video #4). From the moment Officer Burris and Ike approached Zuress to the moment Ike released Zuress, roughly 44 seconds had elapsed. (Video #4). From the moment Ike first bit Zuress until the moment Ike released his bite, roughly 40 seconds had elapsed. (Video #4).

Zuress was then taken to the hospital where she received treatment for her injuries. Zuress received 17 staples in her arm, and now alleges that she has a permanent scar and suffers from nerve damage. (Doc. 21-2, Ex. B, Dep. of Ashley Zuress at PAGEID #247). After Zuress was taken to the hospital, officers searched the Jeep and found a loaded revolver that Grooms had tossed to Zuress before fleeing the vehicle. (Doc. 21-1, Ex. C, Dep. of John Purtee at PAGEID #325). Zuress was later charged with two felony counts, failure to follow an order of a police officer and obstructing official business. Zuress entered a plea bargain when the charges were reduced to misdemeanors.

II. STANDARD OF REVIEW

Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Berryman v. SuperValu Holdings, Inc., 669 F.3d 714, 716-17 (6th Cir. 2012). The Court's purpose in considering a summary judgment motion is not "to weigh the evidence and determine the truth of the matter" but to "determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial exists if the Court finds a jury could return a verdict, based on "sufficient evidence," in favor of the nonmoving party; evidence that is "merely colorable" or "not significantly probative," however, is not enough to defeat summary judgment. Id. at 249-50.

The party seeking summary judgment shoulders the initial burden of presenting the Court with law and argument in support of its motion as well as identifying the relevant portions of "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56). If this initial burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); see also Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (after burden shifts, nonmovant must "produce evidence that results in a conflict of material fact to be resolved by a jury").

In considering the factual allegations and evidence presented in a motion for summary judgment, the Court "views factual evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor." Barrett v....