                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0604n.06

                                            No. 18-3091


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

 JEFFREY BROZMAN,                                                                  FILED
                                                                             Nov 30, 2018
         Plaintiff-Appellant,                                            DEBORAH S. HUNT, Clerk

 v.
                                                            ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
 DETECTIVE LIEUTENANT JEFFREY
                                                            COURT FOR THE NORTHERN
 SOLIC, et al.,
                                                            DISTRICT OF OHIO
         Defendants-Appellees.




BEFORE:        MOORE, CLAY, and DONALD, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff Jeffrey Brozman appeals the district court’s December

29, 2017, Memorandum of Opinion and Order granting Defendants summary judgment on

Plaintiff’s 42 U.S.C. § 1983 claim. For the reasons set forth below, we AFFIRM the district

court’s judgment.

                                         BACKGROUND

                                       Factual Background

       On October 17, 2015, Plaintiff was a passenger in a car that Officer Adam Hess and

Sergeant Christopher Collins of the Austintown, Ohio Police Department stopped following a

traffic violation. Plaintiff and others were ordered to exit the vehicle, and a police dog alerted the

officers to drugs in the vehicle after an open-air sniff. As the officers prepared to search the

vehicle, Plaintiff inserted his hands in his pockets after being ordered to keep them out of his
No. 18-3091, Brozman v. Solic


pockets. Plaintiff had four prescription pills in his pocket that were not prescribed to him. Plaintiff

was ordered to remove his hands, and initially did so before reinserting them in his pockets. The

officers issued another order, and when Plaintiff ignored it, Officer Hess deployed his taser, which

connected with Plaintiff’s chest.     Plaintiff removed one of the taser’s probes, rendering it

ineffective, whereupon an officer attempted to restrain Plaintiff. Plaintiff was brought to the

ground and eventually complied with the officers.           “Once the plaintiff complied, he was

handcuffed and removed from the area without incident.” (R. 14, Joint Stipulations of Fact, Page

ID# 87.)

        After being released by the police following processing and interviewing, Plaintiff received

medical attention and found he had sustained a complex fracture in his hip. Plaintiff was

eventually charged with resisting arrest and drug abuse in violation of O.R.C. § 2921.33(A) and

O.R.C. § 2925.11(A), respectively. These charges were dropped but re-filed, and Plaintiff

eventually pleaded guilty to the drug abuse charge, while the resisting arrest charge was dismissed.

                                        Procedural History

        Plaintiff filed suit in state court under 42 U.S.C. § 1983 against Defendants Detective

Lieutenant Jeffrey Solic of the Austintown Police Department, the Township of Austintown, the

Township of Austintown Board of Trustees, and various John Doe defendants, alleging violation

of his Fourth and Fourteenth Amendment rights.1 Defendants removed the case to the United

States District Court for the Northern District of Ohio. The parties conducted discovery and filed

a Joint Stipulation of Facts, which the parties relied upon in their motions and briefs.

        Defendants moved for summary judgment, and the district court granted Defendants’

motion. Plaintiff timely appealed.


        1
         Plaintiff was later permitted to amend his complaint to include Sergeant Collins and
Officer Hess.

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No. 18-3091, Brozman v. Solic


                                           DISCUSSION

                                        Standard of Review

        We review a district court’s grant of summary judgment de novo. Spadafore v. Gardner,

330 F.3d 849, 851 (6th Cir. 2003). Summary judgment is proper where there is no genuine issue

as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). In considering such a motion, the court construes all reasonable factual inferences

in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). The central issue is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).

                                              Analysis

        A plaintiff can succeed on a § 1983 claim for excessive force in violation of the Fourth

Amendment where police officers’ use of force against a plaintiff was “‘objectively unreasonable’

in light of the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397

(1989). Plaintiff raises two issues on appeal, which we will address in turn.

        First, Plaintiff argues that the complex fracture he sustained is circumstantial evidence of

excessive force such that a genuine issue of material fact exists. But Plaintiff forfeited this

argument by failing to raise it in the district court. “It is well-settled that issues not presented to

the district court but raised for the first time on appeal are not properly before this Court.” Kusens

v. Pascal Co., 448 F.3d 349, 368 (6th Cir. 2006) (citation omitted); see also Armstrong v. City of

Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (“[T]he failure to present an issue to the district

court forfeits the right to have the argument addressed on appeal.”). Plaintiff did not raise the issue

below of whether his fractured hip establishes sufficient circumstantial evidence of unreasonable



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No. 18-3091, Brozman v. Solic


use of force to defeat summary judgment. Instead, in response to Defendants’ motion for summary

judgment, Plaintiff’s argument was premised entirely on the issue of whether he was tased a second

time after being handcuffed. Thus, Plaintiff forfeited this argument.

        Second, Plaintiff argues that he was tased after being handcuffed, which constituted force

that was objectively unreasonable in light of the circumstances. This Court does not need to reach

the question of whether such a use of force would be unreasonable, because no genuine issue of

material fact exists as to whether Plaintiff was tased after being handcuffed. This is because the

Joint Stipulations of Fact, which Plaintiff signed and relied on in his motions and briefing below,

stated that “[o]nce the plaintiff complied, he was handcuffed and removed from the area without

incident.” (R. 14, Joint Stipulations of Fact, Page ID# 87.) The district court correctly held that

this admission prevents Plaintiff from arguing that he was tased after being handcuffed, as he was

“handcuffed and removed from the area without incident.” Moreover, on appeal Plaintiff does not

make any argument relating to the district court’s analysis of the Joint Stipulation. Rather, Plaintiff

disingenuously cites this section of the Joint Stipulations of Fact without the last two words, stating

only that “once the plaintiff complied, he was handcuffed and removed from the area.”

(Appellant’s Br. 5 (quoting R. 14, Joint Stipulations of Fact, Page ID# 87.)) In light of Plaintiff’s

admission, there remains no genuine issue of material fact as to whether Plaintiff was tased after

being handcuffed.

        For the reasons stated above, this Court AFFIRMS the district court’s judgment.




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