                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0649n.06

                                           No. 12-4172                                  FILED
                                                                                   Jul 12, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


MIMI L. LEE; RICHARD D. LEE,                             )
                                                         )
       Plaintiffs-Appellants,                            )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
               v.                                        )        COURT FOR THE NORTHERN
                                                         )        DISTRICT OF OHIO
CITY OF NORWALK, OHIO; JAMES L.                          )
MONTANA, Individually and in his official capacity       )
as a Norwalk Police Officer; CHRISTOPHER HIPP,           )
Individually and in his official capacity as a Norwalk   )
Police Officer; THOMAS COOK, Sergeant,                   )
Individually and in his official capacity as a Norwalk   )
Police Officer; DAVID LIGHT, Individually and in         )
his official capacity as Chief of the Norwalk Police     )
Department; JOHN DOE, No. 1,                             )
                                                         )
       Defendants-Appellees.                             )
                                                         )



BEFORE: ROGERS and KETHLEDGE, Circuit Judges, and BORMAN, District Judge.*

       ROGERS, Circuit Judge. Mimi and Richard Lee filed this action under 42 U.S.C. § 1983,

alleging that Norwalk, Ohio police officers used excessive force in violation of Lee’s Fourth

Amendment rights by applying handcuffs to Mimi Lee too tightly for a prolonged period of time, and

by physically assaulting Lee and slamming her to the ground during the booking process at the police

station. The district court granted summary judgment for the officers on the basis of qualified


       *
       The Honorable Paul D. Borman, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 12-4172
Lee v. City of Norwalk


immunity. Because plaintiffs do not raise a genuine issue of material fact to show that any officer

used excessive force in violation of Lee’s constitutional rights, or that a reasonable officer would

have known that the conduct at issue was unlawful, the district court properly granted summary

judgment for defendants.

       On May 7, 2009, Norwalk police officer James Montana responded to a call alerting the

police that a woman was seen urinating in a hospital parking lot. The hospital nurse who placed the

call informed Officer Montana that the woman was driving out of the parking lot in a pickup truck.

R. 26-2 at 2. Officer Montana followed the woman, Mimi Lee, across the street into a Burger King

parking lot, and conducted a traffic stop there. At that point, Officer Christan Hipp arrived to assist

Officer Montana. Lee admitted that she had urinated in the parking lot but offered the explanation

that she was on medication that made it difficult for her to control her bladder. Id. Officer Montana

smelled alcohol on Lee’s breath and observed that her eyes were glassy and bloodshot. Suspecting

that Lee was inebriated, Officer Montana asked Lee to perform field sobriety tests. Officer Montana

conducted a horizontal gaze nystagmus test and found that Lee exhibited multiple signs of

impairment. Id. Officer Montana then asked Lee to take a portable breath test, and Lee registered

a 0.185 percent blood alcohol content, which is more than twice the legal limit in Ohio. Id. Officer

Montana arrested Lee and handcuffed her.

       The two officers observed cans of beer—one opened and several unopened—in Lee’s truck.

Lee was placed in Officer Montana’s cruiser to be driven to the police station for booking. Id. Lee

alleges that en route to the police station, she complained to Officers Montana and Hipp that the


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Lee v. City of Norwalk


handcuffs were too tight. R. 30-2 at 2. Lee claims that the allegedly too-tight handcuffing caused

her injury requiring medical treatment. Id. at 3.

       Lee also claims that after she arrived at the police station, the officers removed her handcuffs

and sat her down in a chair. Lee alleges that while Officer Montana prepared the arrest paperwork,

she continued complaining about swelling and red marks on her wrists. She became agitated and

threw a paper on the ground. When she asked to use the bathroom, she was denied permission. R.

30-2 at 2. Lee claims that she then rose to move towards the door, which was blocked by Officer

Hipp. As she moved towards Officer Hipp, Lee says he pushed her and Officer Montana grabbed

her from behind. Lee alleges that Officer Montana grabbed her arms and pulled her to the left, then

swung her around to face him and shoved her onto a table, put his right arm across her neck and

choked her while maintaining a firm grip on her shoulder with his other hand. Lee claims that she

did not resist and that Officer Montana continued to choke her with his arm across her neck for about

thirteen seconds. Officer Thomas Cook allegedly checked on Montana’s choke hold but did not

intervene to stop it. R. 30-2 at 2.

       Lee claims that Officer Montana pulled her up into a sitting position and then onto her feet,

and then threw her to the booking room floor, causing Lee to hit her head on the ground. She alleges

that Officer Montana then straddled her and continued to choke her with his forearm across her neck.

Officer Montana allegedly shouted, “Spray the bitch,” which prompted Officer Hipp to reach for his

pepper spray—though Lee does not claim to have been pepper sprayed. R. 30-2 at 2. Officers Hipp

and Cook then allegedly helped Officer Montana roll her onto her stomach and handcuff her behind


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No. 12-4172
Lee v. City of Norwalk


her back while Officer Timothy Skinner came in to assist them by holding Lee’s ankles. Lee alleges

that she was then allowed to sit on a chair in the booking room once again and that the booking

process was completed without further incident.

       Lee claims that she suffered injury to her wrists as a result of the handcuffing, which required

her to undergo medical treatment. After being released from police custody, she apparently went to

the emergency room complaining of wrist pain and other injuries, and was diagnosed with a wrist

contusion. She received medication and a wrist splint, and eventually, after consultation with an

orthopedic surgeon, underwent carpal tunnel release surgery in both wrists. R. 1 at 6; R. 30-2 at 3.

       The Lees subsequently filed this suit under § 1983, alleging that Lee’s constitutional rights

were violated by the officers’ use of excessive force, and further raising state-law claims for assault

and battery and intentional infliction of emotional distress. Plaintiffs also raised municipal liability

claims against the City of Norwalk. See Complaint, R. 1 at 7–11. The defendants moved to dismiss

the state-law claims on the grounds that those claims were barred by a one-year Ohio statute of

limitations, and the district court granted that motion. The defendants then moved for summary

judgment on the remaining claims. The district court found each officer entitled to qualified

immunity and granted summary judgment for the officers on all claims. Lee v. City of Norwalk, No.

3:11-CV-897, 2012 U.S. Dist. LEXIS 123631 (N.D. Ohio Aug. 30, 2012).

       On the handcuffing claim, the district court held that Lee could not prove that her wrist

injuries resulted from the allegedly too-tight handcuffing rather than her own actions. The district

court also held that the Fourth Amendment prohibits unduly tight or excessively forceful


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Lee v. City of Norwalk


handcuffing, but that even assuming Lee complained to the arresting officers and the officers failed

to respond, the officers’ failure to address the issue during the less-than-ten-minute ride to the police

station did not constitute excessive force. Id. at *16–17. The district court concluded that Sixth

Circuit precedent effectively foreclosed the notion that Lee’s constitutional rights could have been

violated in so short a period, and held that the officers were therefore entitled to qualified immunity.

Id. at *18.

        On the police-station-assault claims, the district court noted that the video recording of the

booking process contradicted Lee’s allegations and showed that each officer acted reasonably under

the circumstances. The court concluded that Officer Montana’s actions did not constitute a “vicious

assault” as Lee contended, and were instead reasonable police procedures for handling a belligerent

and aggressively resistant arrestee. Id. at *20–25. The district court likewise held that the other

officers’ physical actions against Lee did not amount to excessive force, and that the Lees’

bystander-liability claims against the other officers for failing to intervene were meritless both

because Officer Montana did not violate Lee’s constitutional rights and because none of the officers

could have known that Officer Montana would have acted as he did in time for them to intervene.

Id. at *27–34. The district court held that the officers were therefore entitled to qualified immunity.

        The district court also granted summary judgment for the defendants (1) as to plaintiffs’

official-capacity claims because § 1983 does not permit recovery against a municipality for injuries

caused by its employees or agents, id. at *11–12; (2) as to the municipal-liability claim because

plaintiffs offered no evidence of inadequate training or causation, id. at *33; (3) as to the loss-of-


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Lee v. City of Norwalk


consortium claim because a spouse cannot state such a claim under § 1983, id. at *36; and (4) as to

the punitive-damages claim because there was no evidence that any officer acted with the requisite

malicious intent. Id. at *38.

        The Lees appeal the district court’s grant of summary judgment on the excessive-force claims

under § 1983, but they do not appeal the grant of summary judgment on the claims against the

officers in their official capacity, the municipal-liability claim against the City of Norwalk, the loss-

of-consortium claim, or the claim for punitive damages. The Lees also do not appeal the Rule

12(b)(6) dismissal of their state-law claims for assault and battery and intentional infliction of

emotional distress. We review the district court’s judgment de novo, viewing the facts in the light

most favorable to the Lees as the nonmovants and giving them the benefit of all reasonable

inferences. See King v. Taylor, 694 F.3d 650, 661 (6th Cir. 2012).

        The officers are entitled to qualified immunity on both the handcuffing claim and the police-

station-assault claim. Qualified immunity shields government officials performing discretionary

functions from liability for civil damages “insofar as 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 (1982). Qualified immunity applies unless it would be

obvious to a reasonably competent official that the actions taken were unlawful, and the plaintiffs

bear the burden of showing that the defendants are not entitled to qualified immunity. Chappell v.

City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223, 231

(2009)).


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Lee v. City of Norwalk


        Officers Montana and Hipp are entitled to qualified immunity on the handcuffing claim

because the Lees have not raised a genuine issue of material fact as to whether any reasonable officer

would have known that this conduct violated Lee’s constitutional rights. To defeat qualified

immunity, the Lees must show “that a reasonable official would understand that what he is doing

violates that right. The relevant, dispositive inquiry . . . is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194,

202 (2001). No reasonable officer would have concluded, in the situation that Officers Montana and

Hipp confronted, that Lee’s constitutional rights were being violated.

        Even if we assume that Lee complained that the handcuffs were too tight, that Officers

Montana and Hipp ignored those complaints, and that an injury to Lee’s wrists resulted from the

handcuffing, no reasonable officer would have known that ignoring Lee’s complaints during the

short drive to the police station was unlawful. Lee was handcuffed shortly before and during the

drive from the Burger King parking lot to the Norwalk police station, a distance of 1.5 miles that can

be driven in less than five minutes. See Lee, 2012 U.S. Dist. LEXIS 123631, at *18 n.1. In a similar

situation, where an arrestee was handcuffed during a ten-minute ride to the police station, this court

held that “a reasonable officer would not know that the failure to respond to a complaint about tight

handcuffs during a ten-minute ride to the police station violates the Constitution.” Fettes v.

Hendershot, 375 F. App’x 528, 533 (6th Cir. 2010). We emphasized in Fettes that there is no clearly

established “constitutional requirement obligating officers to stop and investigate each and every

utterance of discomfort.” Id. Plaintiffs dispute how long Lee was handcuffed, but even if we assume


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No. 12-4172
Lee v. City of Norwalk


that she was handcuffed for more than five minutes, the record indicates that she was not handcuffed

for very much longer—certainly not long enough for the duration of her handcuffing to cause any

reasonable officer to know that his conduct violated the arrestee’s rights.

       Morrison v. Board of Trustees, 583 F.3d 394, 401 (6th Cir. 2009) does not compel a different

conclusion. In Morrison, the officer allegedly handcuffed the plaintiff too tightly, did not loosen the

handcuffs when asked to do so, told the plaintiff that he could place the handcuffs on “as tight as he

wanted to and that’s how they were staying,” id. at 402, and kept the plaintiff handcuffed for forty

to fifty minutes. These facts distinguish Morrison from Lee’s case.

       The defendants are also entitled to qualified immunity on the Lees’ claims arising from the

booking at the police station, because the Lees have not raised a triable fact issue as to whether any

officer violated Lee’s constitutional rights. Mimi Lee alleges that she was viciously assaulted by

Officer Montana at the police station, and that the other officers present are liable for failing to

intervene or for assisting in Officer Montana’s assault. But Lee’s allegations are contradicted by the

video evidence in the record. Although ordinarily the plaintiffs’ version of the facts must be

accepted as true when deciding the defendant’s motion for summary judgment, a video that

contradicts a nonmovant’s version of the facts can support a grant of summary judgment. See Scott

v. Harris, 550 U.S. 372, 381 (2007); Marvin v. City of Taylor, 509 F.3d 234, 249 (6th Cir. 2007).

       The video evidence establishes that Officer Montana did not use constitutionally excessive

force against Lee. The video shows that Mimi Lee was belligerent and confrontational throughout

her time in the booking area. See R. 28, Exhibit 1 (DVD), segment ending in 678 at 2:50–5:30. The


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Lee v. City of Norwalk


Lees’ characterization of the officers’ actions as a “vicious assault” is not accurate. The video shows

that Officer Hipp only shoved Lee’s shoulder mildly and gestured for her to sit back down in the

chair. Id. at 3:44. The Lees contend that Officer Montana then “grabbed her” and “shoved her onto

the table” before he “choked her” with his right forearm. The video shows that Officer Montana

took hold of the sleeves of Lee’s sweatshirt in an effort to guide her back to the chair she had been

sitting in, then applied force to her neck with his forearm after she flailed and appeared to start to

swing at him. Id. at 3:46–3:48.

       The Lees’ allegation that Officer Montana continued to choke Mimi Lee on the table is

overstated. Although the video shows that Officer Montana maintained the choke hold for a period,

it is clear that Lee was kicking and struggling during that time; she was not “limp” and compliant

as she claims. See id. at 3:50–4:05. The Lees also claim that Officer Montana then threw Lee to the

ground and landed on top of her, continuing to choke her with his forearm across her neck. The

video shows that while Lee was taken to the ground and handcuffed again by Officer Montana and

other officers, the entire process took a matter of seconds and, once Lee was handcuffed again, the

officers refrained from using further force against her. See id. at 4:05–5:05. Although plaintiffs

claim that Officer Montana shouted “Spray the bitch,” they do not claim that Lee was ever pepper

sprayed. While Officer Montana may not have used the minimum amount of force necessary to

subdue Lee, the video shows that the force Officer Montana used was not constitutionally excessive.

       At the summary judgment stage, video evidence contradicting a plaintiff’s claims is sufficient

to affirm a grant of summary judgment. In Griffin v. Hardrick, 604 F.3d 949 (6th Cir. 2010), this


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court found, based on video evidence, that officers did not use excessive force in restraining the

plaintiff because the plaintiff’s aggressive resistance and noncompliance, including a “loud, lengthy,

and animated conversation” with a nearby nurse, “gave [the defendant officer] a reasonable basis to

believe that force would be necessary to control [the plaintiff].” Id. at 954–55. Although Griffin was

an Eighth Amendment excessive-force case involving a prisoner, its reasoning is persuasive in the

Fourth Amendment context. The Lees’ entire claim rests on the false premise that Officer Montana’s

actions were unreasonable because Mimi Lee “did not pose a threat at the police station.” The video

recording, however, makes clear that Officer Montana had a reasonable basis to believe that Lee

posed a sufficient threat that force was necessary to subdue her. In light of the video evidence in the

record, plaintiffs have not met their burden of raising a triable fact issue and Officer Montana is

therefore entitled to qualified immunity.

       The video also makes clear that Officers Hipp, Cook, and Light had very minimal physical

contact with Lee, such that no rational juror could find that any of these officers applied excessive

force. See R. 28, Exhibit 1 (DVD), segment ending in 678 at 3:00–5:30. Moreover, plaintiffs’

bystander claims against these officers fail to raise a triable fact issue because Officer Montana did

not use excessive force against Lee, as detailed above. Officers Hipp, Cook, and Light were

therefore entitled to qualified immunity.

       The district court’s judgment is affirmed.




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