David Hopper v. Phil Plummer
David Hopper v. Phil Plummer
Opinion
*745 Robert Richardson suffered a seizure two days after he was booked into the Montgomery County Jail in Dayton, Ohio. Corrections officers and medical staff responded to the medical call. Despite both a jail policy that prohibited placing restrained inmates in a prone position and a medic's appeal to handcuff Richardson in front, the officers handcuffed him behind his back and restrained him face down on the floor outside his cell. Richardson died after a twenty-two minute struggle during which record testimony indicates he continually stated he could not breathe.
Plaintiff David Hopper, in his capacity as Special Administrator of Richardson's estate, brought this
I.
A.
In 2009, then-Ohio Governor Ted Strickland issued Executive Order 2009-13S, which addressed the use of prone restraints "across all state systems" and acknowledged "that there is a risk of sudden death when restraining an individual in a prone position." The Ohio Department of Rehabilitation and Correction, among other state departments, was ordered to adopt a policy prohibiting the use of prone *749 restraints, "defined as all items or measures used to limit or control the movement or normal functioning of any portion, or all, of an individual's body while the individual is in a face-down position for an extended period of time." The Montgomery County Jail adopted a use-of-restraints policy that prohibited "placing prisoners who are in restraints in prone or 'spread-eagle' positions."
B.
On May 17, 2012, Richardson was arrested on a capias warrant after failing to appear at a child-support enforcement hearing, and was booked into the Montgomery County jail. That same day, a Juvenile Court judge imposed a sentence of up to thirty days on Richardson for civil contempt, but the contempt could be purged and Richardson released upon payment of $2,500 to the Montgomery County Child Support Enforcement Agency.
Two days later, Richardson collapsed in his cell and his cellmate called for medical help. An overhead video camera recorded the twenty-two-minute incident that followed. 2
The first officer to respond described Richardson as suffering an apparent seizure. Defendants Sergeant Ted Jackson and Officer Justin Johnson arrived "[l]ess than a minute" later. Richardson seemed lethargic and unbalanced, with blood and saliva coming from his mouth. He was sitting against the wall of his cell, trying to stand up. The officers told Richardson, who was a large man, to "stay down" because they were afraid he would fall down inside his small cell and hurt himself. Jackson and Johnson then pulled Richardson from his cell and placed him face down on the floor a few feet away.
A disoriented Richardson continued trying to stand so Jackson decided "to get him cuffed." By this point, several other defendant officers had arrived, including Sergeant Brian Lewis, Officer Michael Stumpff, Officer Bradley Marshall, and Officer Mathew Henning. A medic and a nurse had arrived as well. Jackson and Johnson, assisted by Lewis, Stumpff, and Henning, cuffed Richardson's hands behind his back. No defendant testified to hearing any instruction to do otherwise.
But the medic testified that he and a nurse "told corrections" at the outset to handcuff Richardson "in the front" and to put him on his back so medical staff could "better assess" him. Sergeant Lewis, said the medic, "overrode" that instruction. According to the medic, it was "impossible to do a thorough exam" of Richardson because he was on his stomach. Once Richardson was handcuffed, the medic tried to administer oxygen. The nurse said she told the officers "that they need[ed] [to] make sure [Richardson] was on his side" to "keep that oxygen on him," and to "get him up and get him to medical." Although Jackson requested a restraint chair at some point during the incident, Richardson stopped breathing and died before defendants attempted to move him.
C.
The district court found that the defendant officers each participated in restraining Richardson during a struggle that waxed and waned in intensity. Sergeants Lewis and Jackson helped handcuff Richardson and supervised the other officers. Officer Johnson placed his knees on either *750 side of Richardson's legs and straddled the "thigh area." Officer Henning was behind Johnson, and placed his left knee on Richardson's lower legs. Officer Stumpff positioned himself near Richardson's head, and was "trying to hold onto [Richardson's left] shoulder[.]" Officer Marshall knelt down next to Richardson's head, placed his knee in front of his right shoulder "to stop him from moving forward," and kept at least one hand on Richardson's shoulders or upper back throughout the incident, applying pressure as needed to control Richardson's movements. The video appears to show Marshall placing his knee on Richardson's arm during the last few minutes of the incident.
Other defendants replaced several of these officers as the incident progressed. Officer Michael Beach replaced Officer Johnson about seven minutes into the incident. After fifteen minutes, Officer Keith Mayes relieved the medic positioned at Richardson's head, and used his hands to prevent Richardson from lifting his head up. Mayes also took control of Richardson's shoulders so he would not roll over. Officer Andrew Wittman arrived last, relieving Stumpff after about eighteen minutes, and held Richardson's left arm to the ground.
After twenty-two minutes, the officers realized Richardson was not breathing and began CPR. Officer Stumpff later acknowledged that Richardson "may have said" during the incident that he could not breathe. Officer Wittman agreed there was concern over Richardson's ability to breathe while restrained. Jason Haag, an inmate housed in the cell next to Richardson's, stated that Richardson "repeatedly ... said he couldn't breathe," and tried "to get up to breathe," but "[defendants] kept pushing him back down until he stopped moving." Keith Wayne, another inmate, testified that he also heard Richardson say "I can't breathe[.]"
Defendants' efforts to revive Richardson were unsuccessful, and a doctor pronounced him dead less than an hour after the incident began. The deputy coroner concluded that Richardson's death was caused by "[c]ardiac arrhythmia." But one of plaintiff's medical experts determined that Richardson suffered a "fatal cardiac arrhythmia" only because the "manner of restraint impaired [his] ability to breath[e.]" Plaintiff's other medical expert agreed Richardson died from restraint asphyxiation. He elaborated that asphyxiation resulted from the "compression of Mr. Richardson's torso, including his upper back and neck[,] while he was subdued in a prone position with his hands cuffed behind his back." This expert explained that if an individual's arms and legs are restrained like Richardson's were, that individual cannot use them to alleviate the compressive pressure, will fatigue "[o]ver time," and his "[r]espiratory movements will ultimately stop."
D.
Plaintiff brought this § 1983 action against defendants. Relevant here, plaintiff alleged that the officers violated Richardson's rights under the Eighth or Fourteenth Amendment by using excessive force against him and by acting with deliberate indifference to his medical needs. Plaintiff further alleged that the officers violated Ohio state law by causing Richardson's wrongful death. Plaintiff also brought official-capacity claims against Sheriff Plummer alleging failure to train and supervise, and unconstitutional jail policy or custom.
The district court denied the officers summary judgment on qualified- and statutory-immunity grounds. Taking the evidence in the light most favorable to *751 plaintiff, the district court determined that jurors "could reasonably conclude that officers applied compressive force upon a restrained Richardson's back, shoulder blades, shoulders, neck, hands, waist, thighs and lower legs throughout much of the twenty-two minute ordeal" and "that Richardson died as a result of position or restraint asphyxia while being restrained in a prone position by multiple corrections officers." It also held that genuine issues of material fact precluded summary judgment in favor of Sheriff Plummer on plaintiff's official-capacity claims.
The officers and Sheriff Plummer timely filed this interlocutory appeal.
II.
Qualified immunity shields public officials from civil liability under
Defendants raise four issues on appeal. The officers argue that (1) the district court's application of the Fourteenth Amendment to plaintiff's excessive-force claim was erroneous, and that no constitutional guarantee was clearly established at the time of the alleged misconduct, (2) the district court should have granted them qualified immunity on plaintiff's deliberate-indifference claim, and (3) the district court erroneously denied them statutory immunity under Ohio law. Sheriff Plummer maintains that (4) we should exercise pendent jurisdiction over, and should dismiss, plaintiff's official-capacity claims against him. We address each argument in turn.
III.
A.
First, we must decide which constitutional guarantee plaintiff's excessive-force claim implicates. An excessive-force claim may arise under the Fourth, Eighth, or Fourteenth Amendments. While the Fourth Amendment's prohibition against unreasonable seizures bars excessive force against free citizens,
see
Graham v. Connor
,
The question is not merely academic because the standards of liability
*752
differ depending upon which amendment applies.
3
Graham
,
Defendants maintain that the Eighth Amendment applies here because Richardson was serving a definite jail sentence. Importantly, defendants do not appeal the district court's finding under the Fourteenth Amendment that "genuine issues of material fact remain concerning the reasonableness of the force used in this case." Indeed, "[h]ow much force [defendants] applied and for how long are disputed factual issues a jury must decide."
See
Martin v. City of Broadview Heights
,
Richardson was sanctioned for contempt "in an ordinary civil proceeding."
Int'l Union, United Mine Workers of Am. v. Bagwell
,
While a criminal contempt sanction is punitive and seeks "to vindicate the
*753
authority of the court," a civil contempt sanction is remedial and designed to coerce a future act for the benefit of the complainant.
See
Bagwell
,
The Fourteenth Amendment therefore governs plaintiff's excessive-force claim. In arguing the Eighth Amendment applies instead, defendants contend that the use of terms like "punish" and "penalty" in Ohio's contempt statutes indicates Richardson was being punished, not merely coerced.
See
Ohio Rev. Code § 2705.02, 2705.081, 2705.05. It is true that "[m]ost contempt sanctions ... to some extent punish a prior offense as well as coerce an offender's future obedience," but any definitive "conclusions about the civil or criminal nature of a contempt sanction" must be drawn "from an examination of the character of the relief itself" as opposed to a sanction's "stated purposes" or "the subjective intent of a State's laws and its courts."
See
Bagwell
,
Defendants' reliance on two district court opinions that applied the Eighth Amendment to a civil contemnor's excessive-force claim is equally unavailing. In
Lewis v. Stellingworth
, the district court did so because the civil contemnor was "in custody" when the alleged misconduct occurred. No. 07-CV-13825,
Richardson was not a free citizen at the time of the incident, but he had not been convicted of, and was thus not being punished for, any past criminal offense either. Even if Richardson's contempt sanction could be considered "quasi-criminal [in] nature" (as defendants maintain it should), by that very label it was not entirely so-leaving him, an individual within "some gray area" between free citizen and convicted criminal, protected by the Fourteenth Amendment's Due Process Clause.
See
Burgess v. Fischer
,
For the reasons stated above, we affirm the district court's application of the Fourteenth Amendment to this plaintiff's excessive-force claim.
B.
Defendants also argue that no clearly established law barred unreasonable force against civil contemnor detainees in 2012. Plaintiff relies primarily on this court's opinion in
Champion v. Outlook Nashville, Inc.
,
Thus "the prohibition against placing weight on [Richardson's] body after he was handcuffed was clearly established in the Sixth Circuit as of" May 2012.
See
Martin
,
In response to
Champion
's admonition, defendants maintain that the presence of medical personnel distinguishes this case because defendants claim they restrained Richardson only to facilitate his medical treatment. No medical personnel were present while force was used on Champion, but defendants do not explain how this distinction is material to our clearly-established analysis here. There is no dispute that Richardson was suffering a medical emergency, or that while he may have kicked and thrashed, defendants did not consider him a threat to anyone after he was handcuffed. Champion, who had created a disturbance in a store and "kick[ed] violently" while on the ground, arguably posed a threat.
Champion
,
In any event, neither the mere presence of a third party at the scene nor defendants' professed reason for using force would excuse defendants' use of an otherwise unreasonable amount of force or alter relevant, clearly established constitutional guarantees.
See
Kingsley
,
Defendants also argue that they cannot be held liable for their actions because it was not clear in 2012 whether civil contemnor detainees fell within the Eighth or the Fourteenth Amendment. Although some district courts in this circuit may have applied the Eighth Amendment to civil contemnor detainee excessive-force claims, the Supreme Court long ago "t[ook] the position that the Eighth Amendment is inapplicable to [a civil contempt] sentence."
United States v. Dien
,
Nor can defendants escape liability merely because the incident in question occurred before the Supreme Court made it clear that the standard of liability applicable to Fourteenth Amendment excessive-force claims is purely an objective one.
Kingsley
,
We agree with the district court that Champion , among other precedent, gave such notice to defendants here. Accordingly, we affirm the district court's conclusion that it "[w]as unconstitutional" on May 19, 2012, to create asphyxiating conditions by "forcibly restraining an individual in a prone position for a prolonged period of time" when that individual posed no material threat.
IV.
Defendants argue they are also entitled to qualified immunity on plaintiff's deliberate-indifference claim. We analyze a Fourteenth Amendment claim for deliberate indifference to a serious medical need "under the same rubric as Eighth Amendment claims brought by prisoners."
Villegas v. Metro. Gov't of Nashville
,
A.
As a threshold matter, defendants assert that the district court failed to conduct a sufficiently individualized qualified-immunity assessment in the context of plaintiff's deliberate-indifference claim. "[I]t is well-settled that qualified immunity must be assessed in the context of each individual's specific conduct."
Stoudemire v. Mich. Dep't. of Corrs
.,
The district court emphasized this circumstantial evidence upon turning to the subjective component of plaintiff's deliberate-indifference claim. The district court again cited Haag's testimony that Richardson was "continually" telling "those on the scene" that he could not breathe. Haag's testimony was corroborated by that of inmate Wayne. The district court added that Stumpff "agrees that Richardson may have indicated" that he was having difficulty breathing and that Wittman also "testified that there was cause to be concerned about Richardson's ability to breathe." Building on its excessive-force analysis, the district court concluded that plaintiff's evidence taken in the light most favorable to him "demonstrates that Richardson continually told those on *757 the scene that he could not breathe" but "[d]espite this cause for concern, the individual [defendants] each participated-or supervised-in Richardson's restraint for up to twenty-two minutes" rather than cede control of the scene to medical personnel.
Defendants fault the district court for failing to specify in the record where each officer testified that he heard Richardson's breathing complaints or to reference record evidence establishing that each officer was present "when Richardson was making such complaints." But no testimony concerning Richardson's breathing complaints links those complaints to a particular moment in time, and some witnesses, such as Stumpff, were present throughout the entire incident. A reasonable jury could infer that Richardson's pleas were ongoing and any of the officers could have heard them at the time that they were on the scene. Although the video has no sound, it does not blatantly contradict the district court's conclusion because it shows each defendant in close proximity to Richardson and would thus allow a reasonable juror to conclude that his voice could have reached them.
See
Scott v. Harris
,
The district court inferred from this evidence that each of the officers may have been aware of the contextual facts indicating Richardson's need for medical treatment because he was struggling to breathe while in a prone position. And "a defendant may not challenge the inferences the district court draws from th[e] facts, as that ... is a prohibited fact-based appeal."
DiLuzio v. Vill. of Yorkville
,
B.
Defendants also maintain that they did not disregard any substantial risk to Richardson because they were "working alongside" medical personnel. Because this argument is premised on factual disputes, we lack jurisdiction to consider it on interlocutory appeal.
DiLuzio
,
Defendants do not accept the district court's conclusion that there was sufficient
*758
evidence to create a genuine issue of material fact. For example, defendants contend the district court failed to "factor into [its] analysis that medical staff was on the scene throughout" and "the undisputed evidence is that corrections officers were holding Richardson so the medical personnel could assess and treat him." Yet the district court pointed to specific facts about the medical staff response, and underscored that defendants may have refused a medic's and a nurse's request to reposition Richardson to allow for a proper medical assessment. Defendants also do not accept the district court's finding that the plaintiff presented evidence that "Richardson continually told those on the scene that he could not breathe." Instead, they inappropriately argue that the evidence is insufficient to support that conclusion because not every officer testified to hearing Richardson's complaints or to being present when the complaints were made. We have noted that "the deliberate indifference threshold is higher for correctional officers where ... an inmate is receiving medical treatment[.]'"
Shaver v. Brimfield Tp.
,
Our decision in
McKinney v. Lexington-Fayette Urban County Government
is instructive.
[t]he officers' arguments about the medical staff ... pose questions of fact capable of resolution by competent evidence, including evidence about the officers' observations of facts that indicated that McKinney was in medical distress, the training that the officers received about how to care for an inmate who was in medical distress, and the officers' perceptions about the adequacy of the treatment that the medical staff provided to McKinney.
"When the legal arguments advanced rely entirely on a defendant's own disputed version of the facts, the appeal boils down to issues of fact and credibility determinations that we cannot make."
Thompson
,
C.
Defendants also assert in a conclusory fashion that Richardson's right to medical care was not clearly established. They argue the district court erroneously relied on
Lanman v. Hinson
, in which we held in 2008 that the defendants violated a mental-health patient's clearly-established Fourteenth Amendment right to freedom from undue bodily restraint by continuing to restrain him in a prone position using "techniques that pose a substantial risk of asphyxiation" after the patient was subdued.
Moreover, defendants neglect to mention the other cases referenced by the district court such as
May v. Township of Bloomfield
, which includes a discussion of our longstanding precedent establishing that a detainee has a constitutional right to medical care when an officer becomes aware that the detainee needs medical attention.
See
No. 11-14453,
Here, the district court found that "reasonable minds could conclude that Richardson was suffering from an obvious serious medical need" as he lay prone, handcuffed, and complaining he could not breathe for the better part of twenty-two minutes. Defendants conceded in their motion for summary judgment that they each "were aware this was a medical situation, where Richardson was having some sort of medical issue," and that "this is not a case where [defendants] failed to get Richardson medical attention." We fail to see how, considering our precedent, a detainee like Richardson could have had no clearly established right to adequate medical care under circumstances even defendants admit indicated a need for medical attention.
In sum, defendants' medical-personnel argument is fact-bound and beyond our limited jurisdiction.
V.
Plaintiff also brings an Ohio tort claim for wrongful death against the officers, and defendants argue they should have been granted statutory immunity. Ohio law does not immunize "acts or omissions [done] with malicious purpose, in bad faith, or in a wanton or reckless manner." Ohio Rev. Code § 2744.03(A)(6)(b). As relevant here, recklessness is conduct "characterized by the conscious disregard of or indifference to a known or obvious risk of harm to another that is unreasonable under the circumstances and is substantially greater than negligent conduct."
Argabrite v. Neer
,
The district court relied on its "analysis of Plaintiff's deliberate indifference claim" in concluding the officers were not entitled to statutory immunity because "a reasonable jury could find recklessness sufficient to overcome employee immunity" under Ohio law. When federal qualified immunity and Ohio state-law immunity under § 2744.03(A)(6) rest on the same questions of material fact, we may review the state-law immunity defense "through the lens of the federal qualified immunity analysis."
Chappell v. City of Cleveland
,
Defendants make the same arguments here as they made in challenging the district court's deliberate-indifference findings: that there was an insufficient individualized inquiry as to each defendant's qualified immunity defense, and that the district court did not consider the presence of medical personnel throughout the incident. As discussed above, the district court's qualified immunity analysis was sufficiently individualized.
In support of their renewed medical-personnel argument, defendants rely on our decision in
Ruiz-Bueno v. Scott
. There, a pretrial detainee's estate sued jail officials under federal and Ohio law after the detainee died from a preexisting heart condition of which no one at the jail was aware.
Defendants' statutory immunity defense stands or falls with their federal qualified immunity defense.
Cf.
Martin
,
VI.
Finally, defendant Sheriff Plummer appeals from the district court's denial of summary judgment on plaintiff's § 1983 claims brought against him in his official capacity.
4
That is not an independently appealable "final decision" under
*761
Mattox v. City of Forest Park
,
That is not the case here. The officers' appeal of the qualified immunity issues is not "inextricably intertwined" with Sheriff Plummer's appeal because their "liability turns on whether the force they used to restrain [Richardson] violated his clearly established constitutional rights," while municipal liability turns on separate questions of the jail's training and supervision obligations and practices as well as its policies and customs.
See
Martin
,
VII.
For these reasons, we affirm in part and dismiss in part.
Plaintiff also sued certain medical staff, but those defendants settled with plaintiff and are not involved in this appeal.
This video lacks sound and the image stutters because the camera recorded at a frame rate of only four frames per second. Accordingly, the following factual account is informed not only by the video, but also by other record evidence including deposition testimony.
Defendants argue that we should "re-evaluate" the differing standards of liability because corrections officers need bright-line rules. We may not do so, however, because we are bound by precedent.
See, e.g.
,
Kingsley v. Hendrickson
, --- U.S. ----,
"Official-capacity suits ... 'generally represent only another way of pleading an action against an entity of which an officer is an agent.' "
Kentucky v. Graham
,
Reference
- Full Case Name
- David M. HOPPER, Special Administrator of the Estate of Robert Andrew Richardson, Sr., Plaintiff-Appellee, v. PHIL PLUMMER, Montgomery County Sheriff; Ted Jackson, Sergeant; Brian Lewis, Sergeant; Dustin Johnson, Corrections Officer; Mathew Henning, Corrections Officer; Michael Beach, Corrections Officer; Keith Mayes, Corrections Officer; Bradley Marshall, Corrections Officer; Michael Stumpff, Corrections Officer; Andrew Wittman, Corrections Officer, Defendants-Appellants.
- Cited By
- 124 cases
- Status
- Published