Opinion
Case No. 3:99 CV 7726
March 4, 2002
MEMORANDUM OPINION
This matter is before the Court on the parties' objections to the August 21, 2001, report and recommendation of the United States Magistrate Judge (Doc. No. 81), who recommended that the Defendants be granted summary judgment on all issues except the use of excessive force. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367. In accordance with Hill v. Duriron Co., 656 F.2d 1208 (6th Cir. 1981), and 28 U.S.C. § 636(b)(1)(B) (C), this Court has made a de novo determination of the Magistrate Judge's findings to which the Plaintiff objects. For the following reasons, the report and recommendation will be adopted in part and rejected in part.
BACKGROUND
This is a civil rights case filed pursuant to 42 U.S.C. § 1983. Plaintiff Heston Cuffy is a resident of Allen County, Ohio. Defendants Larry Van Horn, Paul Basinger, Matt Redick, Bret Lee, Jerry Morris, Danny Thompson, Sam Crish, Brian Winegardner, Todd Mohler, Brad Jacomet, Mark Baker, and Terry Sneary are deputies in the Allen County Sheriff's Department. Defendant Daniel Beck is the Allen County Sheriff, and Defendant Angel Cortes is a sergeant employed by the Allen County Police Department. Defendant Jerry Sarchet is a police officer employed by American Township, which is adjacent to Allen County. Defendant Jana Gutman is an Assistant Allen County Prosecutor. Defendant Anthony Denisco is a physician employed by Allen County.
In his own objections to the magistrate's report, Cuffy is referred to as "Hasten Cuff" without explanation. The spelling used in this opinion is consistent with the Complaint and other prior pleadings.
On December 6, 1997, Cuffy, suffering from manic depression and bipolar disorder, drank a large amount of gin. During the afternoon, Cuffy, brandishing a machete, visited his cousin, Fitzroy Cuffy. Although Cuffy alleges that he brought the machete to his cousin only to show him its high quality, the Defendants claim that Cuffy's actions required Fitzroy Cuffy to use an ax to defend himself and his pet. Shortly after Cuffy left Fitzroy Cuffy's home, the police arrived to investigate.
At 4:10 p.m., Cuffy's description was disseminated to law enforcement. The description stated that Cuffy was suspected of felonious assault. Shortly after he received the description, Defendant Sarchet identified Cuffy, who was driving at a high rate of speed. Sarchet activated his lights and siren and followed Cuffy to his home, where Cuffy exited his car, still holding the machete. Cuffy did not threaten Sarchet, and when Sarchet requested that he drop the machete and surrender, Cuffy did not comply. Instead, he entered his house and fell asleep on the couch.
Sarchet requested assistance. Sneary, Redick, and Cortes were the first to arrive on the scene. They unsuccessfully tried to contact Cuffy by both telephoning him and by knocking on his door. Cortes contacted her supervisor, who contacted Defendant Gutman about the necessity of obtaining a warrant. Gutman allegedly advised the officers to enter without a warrant. The Defendants on the scene contacted the Allen County Sheriff's Tactical Team at 5:20 p.m. to request assistance.
Allegedly because they were concerned that he might harm himself or others, Basinger, Redick, Sneary, Sarchet, and Cortes entered Cuffy's house about forty-five minutes after he did. They secured the first and second floors of the home and determined that Cuffy had retreated to an attic that was only accessible though a bedroom closet. When the Defendants announced their presence, Cuffy allegedly responded with threats and vulgarities. Basinger sprayed mace around the entrance to the attic to prevent Cuffy's escape.
At approximately 6:20 p.m. the Tactical Team arrived. Defendants Thompson and Morris attempted to negotiate Cuffy's surrender, but he again responded with obscenities and threats. The Defendants claim that they were able to see that Cuffy was using the machete to chop the attic opening.
Eventually, Cuffy descended the stairs. According to the officers, he was still holding the machete and refused to drop it. At approximately 7:00 p.m. Cuffy was fired upon by Jacomet and Mohler, who were wielding a shotgun and pistol respectively. Cuffy fell to the floor, and he was disarmed and handcuffed by the tactical team. Cuffy's wound was treated by Defendant Denesco. At no time during this entire incident did any Defendant obtain a warrant.
Cuffy was charged with two counts of felonious assault. He was acquitted by reason of insanity.
Cuffy has brought the instant action under 42 U.S.C. § 1983. He claims that his rights under the Fourth, Fifth, Sixth, and Eighth Amendments to the United States Constitution were violated through the forcible entry into his home and his subsequent injury and detention. Cuffy contends that Beck failed to properly supervise and train his employees, and that the Defendants followed unconstitutional policies and customs regarding the use of force. Cuffy has also brought state actions for assault, battery, false arrest, negligence, gross negligence, false and malicious prosecution, and intentional infliction of emotion distress. The Defendants are sued in both their individual and official capacities.
The Defendants filed multiple motions for summary judgment on all parts of Cuffy's complaint, and the matter was referred to the United States Magistrate Judge for report and recommendation. The magistrate recommended that:
1. summary judgment be granted in favor of Defendants Van Horn, Basinger, Redick, Lee, Morris, Thompson, Crish, Winegardner, Mohler, Jacomet, Baker, Sneary, Denisco, and Beck in their official capacities on Cuffy's claims of violation of his rights under the Fourth Amendment through unlawful entry and unlawful seizure;
2. summary judgment be granted in favor of Defendants Van Horn, Basinger, Redick, Lee, Morris, Thompson, Crish, Sneary, Denisco, and Beck in their official capacities on Cuffy's claim of violation of his rights under the Fourth Amendment through excessive use of force during an arrest;
3. summary judgment be denied for Defendants Mohler, Jacomet, Baker, and Winegardner on Cuffy's claim of violation of his rights under the Fourth Amendment through excessive use of force during his arrest, because these defendants were involved in Cuffy's shooting and subsequent entry into custody;
4. summary judgment be entered in favor of Defendants Sarchet and Cortes on all of Cuffy's claims for compensatory damages against them in their individual capacities;
5. summary judgment be granted for all Defendants on Cuffy's claims based on the Fifth, Sixth, and Eighth Amendments;
6. summary judgment be granted in favor of Defendants Van Horn, Basinger, Redick, Lee, Morris, Thompson, Crish, Sneary, Denisco, and Beck on the issue of qualified immunity;
7. summary judgment be denied for Defendants Jacomet, Mohler, Baker, and Winegardner on Cuffy's Fourth Amendment claim of excessive use of force;
8. summary judgment be granted in favor of Defendant Gutman on the issue of qualified immunity;
9. summary judgment be granted in favor of Defendant Beck on the issue of qualified immunity;
10. summary judgment be granted in favor of all Defendants on Cuffy's state law claims.
Cuffy filed timely objections to the report and recommendation. He claims that the Magistrate erred in finding that exigent circumstances existed that excused the warrantless entry into his home and his subsequent arrest. He also argues that summary judgment should not be granted in favor of Defendants Van Horn, Basinger, Redick, Morris, Lee, Crish, Thompson, Sneary, Denisco, and Beck on the excessive force claim, because those Defendants "collectively created a situation in which it was virtually certain that Plaintiff would be shot." Finally, Cuffy objects to the finding that any of the Defendants are entitled to qualified immunity on any of his claims, and he argues that summary judgment should not have been granted in favor of Beck and Gutman, both individually and as representatives of Allen County.
Defendants Jacomet, Mohler, Baker, and Winegardner have also filed an objection to the Magistrate's recommendation. They argue that Baker and Winegardner are entitled to qualified immunity for taking Cuffy into custody because they did not discharge weapons or otherwise use excessive force. They also contend that Jacomet should be granted summary judgment as to both immunity and the ultimate issue of use of excessive force, because even though he discharged a shotgun at Cuffy at short range, there is no evidence that he hit him. Finally, they maintain that Cuffy's action should be dismissed because Cuffy was in a delusional, manic, and inebriated state and would be unable to testify on his own behalf at trial.
The objecting officers also take issue with a characterization in the Magistrate's recitation of facts. The characterization is immaterial to decision on the motions for summary judgment and therefore need not be addressed.
DISCUSSION
I. Summary Judgment StandardAs an initial matter, the Court sets forth the relative burdens of the parties once a motion for summary judgment is made. Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Of course, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those 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. Id. at 323, 106 S.Ct. at 2553. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2541, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)).
Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
II. Objections
A. Unconstitutional Entry and Arrest
Cuffy claims that the Defendants violated his rights under the Fourth Amendment through their warrantless entry to his home and his subsequent arrest. The Defendants argue, and the Magistrate agreed, that the warrantless entry and arrest were justified by exigent circumstances.
The Supreme Court has recognized on more than one occasion that "the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." Payton v. New York, 445 U.S. 573, 585-86, 100 S.Ct. 1380-81, 63 L.Ed.2d 639 (1980) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 2134, 32 L.Ed.2d 752 (1972)). "It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable." Payton, 445 U.S. at 586, 100 S.Ct. at 1380, 63 L.Ed.2d 639 (1980) (citation and quotation omitted), quoted in O'Brien v. City of Grand Rapids, 23 F.3d 990, 996 (6th Cir. 1994). Even in cases where probable cause to arrest exists, "a warrant is required for police entry into the suspect's house unless there are exigent circumstances that excuse the warrant requirement." O'Brien, 23 F.3d at 996.
The Sixth Circuit recognizes three types of exigent circumstances. Exigent circumstances exist:
1) when the officers were in hot pursuit of a fleeing suspect;
2) when the suspect represented an immediate threat to the arresting officers or the public; and
3) when immediate police action was necessary to prevent the destruction of vital evidence or thwart the escape of known criminals.
O'Brien, 23 F.3d at 996 n. 5 (quoting Jones v. Lewis, 874 F.2d 1125, 1130 (6th Cir. 1989)). More generally, "[t]he exigent circumstance exception relies on the premise that the existence of an emergency situation, demanding urgent police action, may excuse the failure to produce a search warrant." Russo v. City of Cincinnati, 953 F.2d 1036, 1043 (6th Cir. 1992) (quoting United States v. Radka, 904 F.2d 357, 361 (6th Cir. 1990). Here, the Defendants claim both that they were in hot pursuit of Cuffy and that they believed that someone in Cuffy's home may have been in danger.
"Hot pursuit" requires "immediate or continuous pursuit of the [suspected criminal] from the scene of a crime." Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732 (1984). The Sixth Circuit examined the hot pursuit exception to the warrant requirement in O'Brien v. City of Grand Rapids, 23 F.3d 990 (6th Cir. 1994). In O'Brien, the Court of Appeals held that no hot pursuit, and therefore no exigent circumstances, existed when officers had surrounded O'Brien, a barricaded gunman who had allegedly committed an assault on an officer by appearing at his door with a rifle in the "port arms" position:
[The initial officer on the scene] chose not to pursue O'Brien at the initial confrontation and instead called for backup to surround the house and secure the area, thereby slowing down and controlling the action. . . . [T]he house was surrounded, O'Brien could not flee the scene unnoticed, and the officers did not fear the destruction of evidence. Furthermore, O'Brien was not holding anyone hostage and had taken no action against the officers during the nearly six hours between the time of the [assault] and the [initial warrantless entry].
O'Brien, 23 F.3d at 997.
The Defendants claim that the "hot pursuit" in the instant case is distinguishable from that in O'Brien in a number of respects. First, they argue that the elapsed time between their arrival at Cuffy's home and their initial entry (to secure the first two floors) was only forty-five minutes. Second, they claim that unlike the plaintiff in O'Brien, who had not definitely committed a crime, Cuffy had already been accused of felonious assault when they entered his home. Finally, they maintain that there was no way they could be certain that Cuffy did not have hostages in the house. The Defendants rely on Russo v. City of Cincinnati, 953 F.2d 1036 (1992), for the proposition that exigent circumstances justify a warrantless entry when the potential subject of the arrest is a knife-wielding person suffering from a mental illness.
Defendants' argument is not well taken. Although Sarchet may have identified Cuffy's vehicle shortly after he left Fitzroy Cuffy's home, his pursuit was neither immediate nor continuous. Although the elapsed time between arrival and entrance was admittedly much less in this case than in O'Brien, a reasonable jury could certainly find that no "hot pursuit" existed after a forty-five minute delay. As in O'Brien, the undisputed evidence in this case shows that Cuffy would not have been able to escape from his house without the knowledge of the officers. Finally, although the undisputed deposition testimony of the Defendants indicates that they considered the possibility that either Cuffy or another resident of the house was harmed or was otherwise in danger, there is no evidence to show that this was anything more than unsupported speculation. Russo, though similar, is readily distinguishable, because the exigency in that case was primarily based on the suicidal tendency of the suspect, see Russo, 953 F.2d at 1043, something not considered by the officers here.
The Defendants have failed to demonstrate that exigent circumstances existed that justified their warrantless entry into Cuffy's home and his subsequent warrantless arrest. Before determining whether the Defendants are entitled to summary judgment on those issues, the Court must analyze the Defendant officers' liability in their official and individual capacities. This analysis is performed below in Sections II(C) and II(D).
B. Excessive Force
Cuffy claims that the Defendants used excessive force during his arrest. When the intended target of an official seizure asserts a claim of excessive force, that claim is analyzed under a Fourth Amendment "reasonableness" standard, and the plaintiff must only show that the actions of the defendants were unreasonable. See Scott v. Clay County, Tennessee, 205 F.3d 867, 876 (6th Cir. 2000), cert. denied, 121 S.Ct. 179 (2000) (citing Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989). To determine whether a use of force was reasonable, the court "must consider whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Ingram v. City of Columbus, 185 F.3d 579, 596 (6th Cir. 1999) (quoting Graham, 490 U.S. at 397, 190 S.Ct. at 1872). Both Cuffy and the Defendants have objected to the Magistrate's recommendation on Cuffy's excessive force claim.
Cuffy argues that the Magistrate erred when she recommended that summary judgment be granted in favor of those defendants who were not directly involved in his being shot and subsequently taken into custody. He maintains that Jacomet and Mohler "were given either direct or implicit orders to shoot to kill." (Pl. Obj. at 5). Furthermore, he claims that the other officers "collectively created a situation in which it was virtually certain that Plaintiff would be shot and he was." (Pl. Obj. at 5).
Defendants Baker, Winegardner, and Jacomet also argue that the Magistrate erred. Baker and Winegardner claim that they are entitled to summary judgment on the excessive force claim because the record does not reflect that they fired upon or otherwise used excessive force on Cuffy. Jacomet contends that he is entitled to summary judgment because there is no evidence that he hit Cuffy when he fired at him with a shotgun.
For an officer to be held liable for the use of excessive force, the plaintiff "must prove that [the officer] (1) actively participated in the use of excessive force, (2) supervised the officer who used excessive force, or (3) owed the victim a duty of protection against the use of excessive force." Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997) (citations omitted). For a supervisor to be liable, the plaintiff must show "that the supervisor `at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.'" Walton v. City of Southfield, 995 F.2d 1331, 1340 (6th Cir. 1993).
Cuffy has failed to put forth evidence to make any showing that officers Van Horn, Basinger, Redick, Morris, Lee, Crish, Thompson, Sneary, Denisco, and Beck satisfy any of the above criteria. Furthermore, there is no indication that Officers Baker and Winegardner directly participated in the use of excessive force related to the firing of the weapons, and there is no evidence that Cuffy's subsequent detention was effected in a manner that was in any way excessive. Mere presence when a shot has been fired, absent more, is insufficient to support a claim of excessive force. See, e.g., Sova v. City of Mt. Pleasant, 142 F.3d 898, 903 (6th Cir. 1998). Officers Van Horn, Basinger, Redick, Morris, Lee, Crish, Thompson, Sneary, Denisco, Beck, Baker, and Winegardner are therefore all entitled to summary judgment on Cuffy's claim of use of excessive force, in both their official and individual capacities.
Defendant Jacomet claims that he should not be held liable for the use of excessive force because his shotgun blast did not hit Cuffy. Jacomet's argument is without merit. As noted above, the reasonableness inquiry considers only whether the actions of the officer were reasonable, not the results. In fact, at least one Court of Appeals has held in a published opinion that no contact is necessary to violate a party's right to be free from excessive force. See Martin v. Board of County Comm'rs, 909 F.2d 402, 406 (10th Cir. 1990) (per curiam) (panel included Nathaniel R. Jones, J., United States Court of Appeals for the Sixth Circuit, sitting by designation); accord Davis v. Bergeon, 187 F.3d 635, 1999 WL 591448 (6th Cir. July 27, 1999) (unpublished disposition). Jacomet's request for summary judgment on the excessive force claim will be denied.
C. Qualified Immunity
Qualified immunity is an affirmative defense which shields public officials performing discretionary functions from civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Like absolute immunity, qualified immunity "is an immunity from suit rather than a mere defense to liability . . . [and] is effectively lost if a case is erroneously permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985) (emphasis in original).
The analysis regarding qualified immunity requires the court to (1) determine whether the plaintiff has asserted a violation of a known civil constitutional right; and (2) whether the constitutional right was so clearly established at the time in question that a reasonable official in the defendant's position would have known that he was violating plaintiff's constitutional rights. Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 292, 112 L.Ed.2d 277 (1991) Hutsell v. Sayre, 5 F.3d 996, 1003 (6th Cir. 1993), cert. denied, 510 U.S. 1119 (1994). Once a qualified immunity defense is raised, "plaintiff is obliged to present facts which if true would constitute a violation of clearly established law." Dominque v. Telb, 831 F.2d 673, 677 (6th Cir. 1987), citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411 (1985). While the ultimate burden of proof is upon the plaintiff to show that the defendant is not entitled to qualified immunity, the defendant "bear[s] the initial burden of coming forward with facts to suggest that they were acting within the scope of their discretionary authority during the incident in question." Rich v. City of Mayfield Heights, 955 F.2d 1092 (6th Cir. 1992).
Qualified immunity provides a broad range of protection, as it protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). "Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992), cert. denied, 506 U.S. 1080 (1993). With that framework in mind, the Court proceeds to the parties' objections based on qualified immunity.
1. Entry and Arrest
Cuffy objects that the officers who entered his home should not be entitled to qualified immunity for the unconstitutional entry and arrest because they could not have had a reasonable belief that they were not violating his rights. He cites O'Brien, supra, for the proposition that the officers in the instant case could not have believed they were in hot pursuit, since the contours of the law of entry in hot pursuit were modified by the holding in O'Brien to make clear that no hot pursuit would exist in this case.
Cuffy is mistaken. Although this Court has already determined that the first part of the qualified immunity analysis has been satisfied by the entry without exigent circumstances, it is clear that in this case, unlike O'Brien, the officers might reasonably have believed that they were in hot pursuit. In O'Brien, the Sixth Circuit held that the officers could not have reasonably believed that they were in hot pursuit because of the four and one-half hours delay between the initial encounter and the officers' entry. See O'Brien, 23 F.3d at 999. Here, in contrast, the officers waited about forty-five minutes, and one officer on the scene (Sarchet) had been involved with Cuffy continuously since only shortly after he allegedly committed a felonious assault. The officers are entitled to qualified immunity on the unlawful entry and arrest claims.
2. Gutman
Cuffy argues that Jana Gutman, Allen County Assistant Prosecutor, is not entitled to qualified immunity for her actions related to telling the officers that she did not believe a warrant was necessary to enter Cuffy's home. Cuffy cites Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), for the proposition that a prosecutor is not entitled to qualified immunity if she gives advice leading to an unconstitutional act. Pembaur does not stand for that proposition; instead, it involves municipal liability for policy created by a prosecutor. See id. Gutman did not enter Cuffy's house, arrest him, or use excessive force. Summary judgment is, therefore, appropriate in her favor on all of Cuffy's claims, and there is no need to consider qualified immunity.
D. Official Capacity Suits
Although the Defendant officers may be entitled to qualified immunity from Cuffy's claims in their personal capacity, the Court must still determine if summary judgment in their favor is appropriate in their official capacity. It is well-recognized that suits against persons in their official capacity are tantamount to suits against the governmental entity. Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). Cuffy's claims against Sheriff Beck are also suits against the governmental entity; here, that entity is Allen County. Cuffy alleges that Beck failed to properly hire, supervise, or train his officers, and that Beck promulgated policies that encouraged the use of excessive force and unconstitutional entry.
Suits against a governmental entity under 42 U.S.C. § 1983 require the plaintiff to show that a policy or custom of the entity caused the injury. See Monell v. Department of Soc. Serv., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Where the alleged injury was caused by a failure to train a municipal employee,
a plaintiff can establish liability "only where a municipality's failure to train its employees in a relevant respect evidences a `deliberate indifference' to the rights of its inhabitants." City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 103 L.Ed.2d 412, 109 S.Ct. 1197 (1989). In other words, a municipality can be liable under § 1983 only where its policies are "the moving force" behind the constitutional violation. Monell, 436 U.S. at 694. Allegations that a particular officer was improperly trained are insufficient to prove liability, as are claims that a particular injury could have been avoided with better training. Canton, 489 U.S. at 390-91. Moreover, to establish a valid claim for improper supervision against a city's police chief, the plaintiff must show "that the supervisor encouraged the specific incident of misconduct or in some other way directly participated in it." Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 727 (6th Cir. 1996); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).
Sova v. City of Mt. Pleasant, 142 F.3d 898, 904 (6th Cir. 1998).
Cuffy contends that the lack of officer training with respect to mentally ill individuals demonstrates a deliberate indifference to their welfare. However, such allegations, standing alone, are insufficient to show indifference. Cuffy also argues that, pursuant to Pembauer, supra, Gutman's advice to the officers that they were able to proceed without a warrant constitutes an official policy on the part of Allen County. Because Cuffy has failed to put forth any evidence tending to show that Gutman was authorized to make policy for Allen County or tending to show that she was acting in accord with established policy, Allen County (and therefore all officers in their official capacities) is entitled to summary judgment on all of Cuffy's claims.
E. Cuffy's Ability to Testify
Finally, the Defendants assert in their objections that the entire matter should be dismissed because Cuffy's illness renders him unable to properly testify, and that no reasonable jury could find him credible. This argument is without merit. Credibility determinations are the province of the jury.
CONCLUSION
For the foregoing reasons, the magistrate's report and recommendation (Doc. No. 81) will be adopted in part and rejected in part. The motions for summary judgment by Defendant Jana Gutman (aka Jana Emerick) (Doc. No. 37), Defendant Angel Cortes (Doc. No. 40 [amended version of Doc. No. 38)]), and Defendant Jerry Sarchet (Doc. No. 29) will be granted on all counts of the Plaintiff's complaint. The motion for summary judgment filed by Defendants Mark Baker, Paul Basinger, Daniel Beck, Sam Crish, Anthony Denisco, Brad Jacomet, Bret Lee, Todd Mohler, Jerry Morris, Matt Redick, Terry Sneary, Danny Thompson, Larry Van Horn, and Brian Winegardner (Doc. No. 42) will be denied as to the liability under 42 U.S.C. § 1983 of Defendants Jacomet and Mohler in their individual capacity for violation of Plaintiff's Fourth Amendment right to be free from excessive force, and granted as to all other counts of the Plaintiff's complaint.
IT IS SO ORDERED.