On October 2, 2020, the Sixth Circuit Court of Appeals decided Pineda v. Hamilton Cty.[i], in which the court examined whether a suit for excessive force could proceed against three deputies where the plaintiff was unable to identify which deputy allegedly struck him in the head with a baton. The relevant facts of Pineda, taken directly from the case, are as follows:
Around 11:00 p.m. on November 9, 2013, Pineda and his wife attended “Hispanic Night” at the Inner Circle Nightclub in Cincinnati, Ohio. This nightclub relied on private bouncers for security in the establishment. But it contracted with the Hamilton County Sheriff’s Office to employ off-duty deputies for security in its large parking lot. Deputies William Cotton and Roy Berry (who are African American) and Deputy Gene Nobles (who is white) worked this night. These off-duty deputies still dressed in their uniforms.
Pineda and his wife spent several hours dancing at the club, and Pineda recalls having three drinks. At closing around 2:30 a.m., other clubgoers got into a fight. The bouncers responded to the ruckus by aggressively pushing all patrons toward the door. Their actions led a crowd to form at the exit. Pineda’s wife got ahead of him in the crowd and made it to their car first. When Pineda exited, he saw individuals arguing with a bouncer just past the door. Pineda attempted to defuse the argument and told the individuals to calm down. The bouncer responded by hitting Pineda in the face and chipping two teeth.
The parties dispute what happened next. According to Pineda, a sheriff’s deputy who had been standing behind him immediately knocked him unconscious by striking him on the back of the head with his baton. Pineda believes that this deputy was African American. He testified that he “could recognize [the person] by his face” if he saw him. But two African-American deputies worked that night, and Pineda has never identified the culprit. Three of Pineda’s friends generally corroborated his recollection. Luis Alonzo Avila noted that “a black man somewhere between 48 and 50 years old . . . hit him on the back of the head.” He expressed uncertainty, though, over whether this man “was security or a police officer.” Juana Elia Gomez testified that she saw Pineda fall to the ground after a deputy struck [*4] him on the head. Ricardo Antonio Andino likewise described the deputy who hit Pineda as “black,” “[t]all, and not too young and not too old.” At the time of this strike, Pineda recalled that the three deputies were in different locations. When Pineda’s friends attempted to assist him and call 911, one or more of the deputies allegedly impeded their efforts to help.
The deputies tell a different story. They claim that they were in different areas dispersing the crowd and did not witness what happened to Pineda. Deputy Cotton, the superior officer, testified that he had been escorting others out of the bar. When Cotton went outside, he saw Pineda already on the ground with a crowd gathered around him. Deputies Nobles and Berry testified similarly that they heard individuals yelling at each other and found Pineda lying on the ground when they approached to see what was happening. Cotton allegedly tried to discover how Pineda had been injured, but language barriers impeded his efforts. He also said that he called for an ambulance. Each deputy testified that he did not hit anyone with his baton that night and did not see the other deputies do so. At this stage, however, we must accept Pineda’s version of events, not the deputies’ version.
By everyone’s account, Pineda’s injuries were significant. He ended up on the ground unconscious and in a pool of blood. Bystanders thought he was dead. Around 3:00 a.m., officers with the Cincinnati Police Department and paramedics arrived at the scene. An ambulance took Pineda to a hospital. He has no memory from the time of the blow until when he was at the hospital. He spent twelve hours in the hospital and the next two weeks lying on a mattress with what he described as “very intense pain” in his head and neck. He could not work for a month. And he still regularly experiences dizziness and headaches.
Officers with the Cincinnati Police Department investigated the incident. At the hospital, an officer wrote a report indicating that Pineda had said that a bouncer assaulted him for no reason. This report did not mention an assault by a deputy. Five days later, an investigator met with Pineda but had trouble communicating with him. Pineda gave her a note stating: “Without warning the security guard punched me with his fist followed by the Sheriff striking me with his night stick or baton in my head.” The investigator told her supervisor about the claim against the deputy, and her supervisor arranged for the note to be sent to the Hamilton County Sheriff’s Office.
Chief Deputy Mark Schoonover with the sheriff’s office tasked Steve Minnich in internal affairs to investigate Pineda’s allegations against the deputy. Minnich spoke with the deputies about the night in question. Yet he was unable to contact Pineda because he had no telephone number or address for him. Minnich also did not coordinate with officers at the Cincinnati Police Department to see if they had Pineda’s contact information, admitting later that “[m]aybe I should have.” In his report, Minnich noted that the “case will remain open until more evidence can be located.” Chief Deputy Schoonover, who had final authority to accept an investigation’s findings, agreed with Minnich’s decision that the case should remain open.[ii]
Pineda filed suit in federal court under Section 1983 and alleged that he was subjected to excessive force under the Fourth Amendment. He did not identify which specific deputy struck him; rather, he named all three working at the nightclub as defendants. He also sued the Sheriff and the Hamilton County Sheriff’s Office under a theory that they conducted an inadequate investigation into the excessive force and therefore “ratified” the unconstitutional conduct. The district court granted summary judgment and dismissed the case for all defendants since the plaintiff did not identify a specific deputy that struck him. Pineda appealed the grant of summary judgment to the Sixth Circuit Court of Appeals.
The Excessive Force Claim Against the Deputies
The Sixth Circuit first examined the excessive force claim against the three deputies. The issue was essentially, whether Pineda can subject all three deputies to trial as defendants even though only one deputy inflicted the single blow that amounted to a constitutional violation. It is important to note that at this stage of the litigation, under court procedural rules, the court must view disputed facts in a light most favorable to Pineda (the plaintiff); as such, the court analyzed this case assuming that it was, in fact, a deputy that struck him and that the strike did amount to excessive force under the Fourth Amendment.
The court then looked at two tort principles that are important to decide the issue at hand. First, the court examined the substantive law or stated another way, what a plaintiff is required to prove in a Section 1983 case. The court stated
Section 1983 makes “liable” “[e]very person” who “under color of” state law “subjects, or causes to be subjected,” another person “to the deprivation of any rights, privileges, or immunities secured by the Constitution[.]” 42 U.S.C. § 1983.[iii]
Thus, a person who acts “under the color of law” (such as acting as a deputy sheriff), and subjects or causes another person to receive a constitutional violation, is subject to liability. However, the court continued to explain that
[A] § 1983 plaintiff generally must prove both [1] that a defendant was personally at fault and [2] that the defendant’s culpable conduct (not somebody else’s) caused the injury… Each defendant must be “personally involved” in the unconstitutional action. Burley v. Gagacki, 729 F.3d 610, 619 (6th Cir. 2013) (quoting Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010)).[iv]
Thus, Pineda must identify the specific deputy that violated his Fourth Amendment rights by hitting him in the head with the baton.
The court also examined the tort principle of “causation,” which means the plaintiff must prove that his injury was caused by the defendant’s conduct, not by the conduct of someone else. The court stated
Many courts noted that a plaintiff’s tort claim would fail “if it is just as probable that the injury came from one cause as the other, because he is bound to make out his case by a preponderance of evidence, and the jury must not be left to a mere conjecture, or to act upon a bare possibility.”… In this § 1983 context, therefore, the Supreme Court has long required proof of a causal connection between the defendant’s unconstitutional action and the plaintiff’s injury. See Hartman v. Moore, 547 U.S. 250, 259-63, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006); Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997). Reliance on tort law’s causation requirement is particularly appropriate under § 1983 because its text requires proof that the defendant “subject[ed], or cause[d] to be subjected,” the plaintiff to a constitutional deprivation. 42 U.S.C. § 1983 (emphasis added).[v]
Second, the court examined procedural law relevant to the issue at hand. Specifically, the court stated
Rule 56 requires a district court to grant summary judgment “if the movant shows that 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).[vi]
This means the plaintiff is responsible to prove each element of his claim by the “preponderance of the evidence.”
The court further stated
[T]o survive a summary-judgment motion, a plaintiff subject to a preponderance-of-the-evidence burden must present enough evidence “to allow a reasonable juror to conclude that the [plaintiff’s] position more likely than not is true.”[vii]
Simply stated, the “preponderance of the evidence” means that something is “more likely than not.” Therefore, if the evidence is evenly balanced or just as consistent with lack of fault as it is with fault, then the plaintiff has failed to meet his burden of proof.
The court then summed up the substantive and procedure requirements and stated
Now put these substantive and procedural pieces together. Section 1983 imposes liability only on a defendant who was personally involved in the unconstitutional action that caused the plaintiff’s injury. And Rule 56 requires a plaintiff confronting a summary-judgment motion to present evidence from which a jury could conclude that it was more likely than not that a defendant was involved. Under these rules, courts in similar settings have held that “in the face of [a] motion for summary judgment, a § 1983 plaintiff must produce evidence supporting each individual defendant’s personal involvement in the alleged violation to bring that defendant to trial.”[viii]
The court then noted that in Pineda’s case, only one deputy was near him. This one deputy, who he described as African-American, struck him one time. One of the other deputies was African-American and the other was not. Thus, Pineda was attempting to sue two deputies who were free from wrongdoing. As such, Pineda did not meet his burden of proof.
The Sixth Circuit recognized that some plaintiffs may be in a “bind” when they have difficulty identifying specific officers that commit violations. However, the court noted that there are other theories of liability such as a conspiracy or “failure to intervene” claim.
In fact, Pineda attempted to use such a theory to argue liability in his case. Pineda cited Fazica v. Jordan[ix] in which the plaintiff was arrested for drunk driving. She was taken to jail where officers allegedly put a spit hood over her head, which obstructed her view. She then alleged that officers hit her and aggressively strip-searched her by ripping off her clothes and touching her genitals. She sued five officers for excessive force, and they alleged that her claim must fail because she could not identify what each specific officer did. In that case, the court stated that they
[R]ecogniz[ed] a rule that plaintiffs may proceed to trial if they place each “individual defendant in a small group of officers that committed allegedly unconstitutional acts within each other’s presence[.]” Id. at 292. That is so even if the plaintiffs cannot “identify clearly which officers committed specific acts during the incident[.]” Id.; see also Batson, 788 F. App’x at 1021; Pershell v. Cook, 430 F. App’x 410, 416 (6th Cir. 2011).[x]
Even considering the above case, the Sixth Circuit stated that it did not help Pineda in his case. First, in Fazica, the plaintiff was able to allege sufficient facts to show that each defendant did commit a constitutional violation, however, she could not identify which officer committed each specific violation. In contrast, in Pineda, it is clear that two defendants did not commit a constitutional violation.
Second, in Fazica, the plaintiff used a “failure to intervene” theory of liability. The court noted that to properly allege a “failure to intervene” theory of liability,
[A] plaintiff to establish that “(1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring.” Fazica, 926 F.3d at 289 (citation omitted).[xi]
Here, Pineda cannot show that the two non-attacking deputies knew what happened or had time to intervene. In fact, the Sixth Circuit stated
[O]ur caselaw suggests that “an excessive use of force lasting ten seconds or less does not give a defendant ‘enough time to perceive the incident and intervene’ to stop such force.” Alexander, 733 F. App’x at 265 (citation omitted); cf. Miller v. Gonzalez, 761 F.3d 822, 826-27 (7th Cir. 2014); Hadley v. Gutierrez, 526 F.3d 1324, 1330-31 (11th Cir. 2008).[xii]
Thus, the single strike from a baton was not sufficient to raise a failure to intervene claim because it happened too fast for another deputy to intervene.
The Sixth Circuit affirmed the grant of summary judgment for the deputies and stated
Because Pineda has failed to meet this standard for all three deputies, the district court properly granted them summary judgment on his excessive-force claim.[xiii]
The Ratification Claim Against the Sheriff and the Sheriff’s Office
The other issue before the Sixth Circuit was whether the Sheriff or his Office somehow “ratified” the excessive force against Pineda by conducting an inadequate investigation into this incident.
The court first examined the legal principles that control what is considered “municipal liability,” or liability against local governments. The court stated
In this § 1983 setting, as we have already explained, the Supreme Court has rejected respondeat superior theories that subject employers like the Hamilton County Sheriff’s Office to liability for their employees’ actions. See Brown, 520 U.S. at 403. Instead, a plaintiff may hold a local entity such as the sheriff’s office liable under § 1983 only if the entity’s own unconstitutional “policy” or “custom” caused the plaintiff’s injury. See id. at 403-05. Likewise, the plaintiff may hold a high-ranking local official such as Sheriff Neil personally liable under § 1983 only if that official’s own unconstitutional actions caused that injury. See Beck v. Hamblen County, 969 F.3d 592, 600 (6th Cir. 2020) (citing Iqbal, 556 U.S. at 676).[xiv]
In other words, to hold the Sheriff’s Office, which is an element of local county government, liable, the plaintiff must show that policy, custom, or practice (a de facto policy) caused the violation and injury. Further, to hold the sheriff himself liable, the plaintiff must show that the sheriff’s own unconstitutional actions caused the injury.
Additionally, when a plaintiff attempts to show liability for “failing to investigate” an incident, he must actually show a pattern (meaning multiple instances that amount to a pattern) of failing to investigate incidents that occurred prior to the incident at hand. Then the plaintiff must show “causation,” which means they must show that a pattern of failing to investigate excessive force incidents caused the deputy in this specific case to use excessive force. Specifically, the court stated
This requirement (that there be multiple failures to investigate) also follows from § 1983‘s causation element. To protect against respondeat superior liability, the Supreme Court has held that § 1983 imposes a “rigorous” causation standard where, as here, a plaintiff seeks to hold a local entity liable for its employee’s actions. Brown, 520 U.S. at 405. A plaintiff must show that the entity’s unconstitutional custom—not just the employee’s unconstitutional action—caused the plaintiff’s injury. Id. at 404. In this case’s context, there must be a “link between” the local entity’s failure to investigate and the plaintiff’s injury. Meirs, 2020 U.S. App. LEXIS 21957, 2020 WL 3956857, at *5; see Smith v. City of Troy, 874 F.3d 938, 947 (6th Cir. 2017).[xv]
In Pineda’s case, he only cited his own incident and did not show a pattern of inadequately investigated incidents that occurred prior to his incident.
Further, the court discussed the fact that, whenever a plaintiff only cites their own incident regarding a “failure to investigate” claim, the investigation occurred after the incident that led to the investigation (and lawsuit). As such, the alleged insufficient investigation could not have caused the incident because it came after the incident.
Therefore, the Sixth Circuit affirmed the grant of summary judgment for the Sheriff, Sheriff’s Office, and Hamilton County.
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Citations
[i] No. 19-3839 (6th Cir. Decided October 2, 2020)
[ii] Id. at 2-6
[iii] Id. at 7-8
[iv] Id. at 9-10 (emphasis added)
[v] Id. at 10-11 (emphasis added)
[vi] Id. at 11
[vii] Id. at 12
[viii] Id. at 12-13
[ix] 926 F.3d 283 (6th Cir. 2019)
[x] Pineda at 15-16 (emphasis added)
[xi] Id. at 17 (emphasis added)
[xii] Id. at 17-18 (emphasis added)
[xiii] Id. at 19
[xiv] Id. at 20-21 (emphasis added)
[xv] Id. at 22 (emphasis added)
