                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0262n.06

                                           No. 09-3356                                  FILED
                                                                                    Apr 28, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


BERTHA STEELE,                           )
                                         )
     Plaintiff-Appellant,                )
                                         )                   On Appeal from the United States
v.                                       )                   District Court for the Northern
                                         )                   District of Ohio
CITY OF CLEVELAND, WILLIAM VANVERTH, )
TODD STAIMPEL, ROBERT MILES, JOHN DOE 1, )
JOHN DOE 2, and JOHN DOE 3,              )
                                         )
     Defendants-Appellees.               )



Before:        GUY, BOGGS, and SUTTON, Circuit Judges.

               BOGGS, Circuit Judge. On May 8, 2007, Aaron Steele (“Steele”) was shot to death

by City of Cleveland police officers during a traffic stop. On May 6, 2008, his mother, acting

through counsel, filed an action under 42 U.S.C. § 1983, alleging that the officers used excessive

force in violation of the Fourth Amendment and that the City of Cleveland failed to adequately train

them in the use of deadly force. The complaint also asserted ancillary state-law tort claims. On

March 4, 2009, the district court granted summary judgment to all defendants. For the reasons given

below, we affirm.

                                        BACKGROUND

A. Allegations in the Complaint
No. 09-3356
Steele v. City of Cleveland, et al.

                According to the complaint (which was not verified), on the afternoon of May 8,

2007, Steele was driving on a Cleveland thoroughfare in a vehicle with expired license plates,

playing music loudly. Six police officers – William VanVerth, Todd Staimpel, Robert Miles, and

three unnamed “John Does” – initiated a traffic stop. Steele produced a valid driver’s license. The

officers ordered him to exit the vehicle; however, “as [the] police officers were escorting [Steele]

from the vehicle, [he] broke away from [the] police officers . . . [and] was shot sixteen times.” In

particular, Steele “sustained twelve gunshot wounds to the posterior right and left trunk, two in the

neck, one in the left groin and one in the left thigh.” He was transported to a nearby hospital, where

he was pronounced dead.

B. Defendants’ Motion for Summary Judgment

                On August 1, 2008, in accordance with the magistrate judge’s scheduling order,

defendants filed a motion for summary judgment, supported by the affidavits of VanVerth, Staimpel

and Miles. According to the officers’ affidavits, VanVerth and Staimpel stopped Steele for driving

with expired license plates. At that point, the officers’ story diverges from the complaint’s version

of events.

                The officers claim that, as VanVerth and Staimpel approached the car, Steele “started

sliding his hand down his right side,” disobeying their repeated orders to “keep his hands in plain

view.” VanVerth, “concerned about [Steele’s] movements,” ordered him out of the car. Steele

refused. VanVerth attempted to “escort [him] from the vehicle,” at which point Steele “broke away

from [VanVerth’s] grasp” and again attempted to “move his hand down his right side.”



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No. 09-3356
Steele v. City of Cleveland, et al.

                 At that point, Miles, who had been alerted to the impending traffic stop via police

radio, arrived on the scene. He shouted to the other officers that, according to police records, Steele

“had previous weapons charges.” VanVerth then drew his service weapon and ordered Steele

“numerous times” to exit the vehicle. Steele initially refused to comply, but “finally stood up in the

doorway of the driver’s side of the vehicle.” The three officers ordered Steele to get down on the

ground “50 or 60 times,” but Steele did not comply. Steele then “dove back into the vehicle,”

apparently “reaching for something.” At that point, VanVerth saw Steele “grab [a] gun.”

                 Staimpel “dove into the vehicle after [Steele]” and wrestled with Steele for control

of the gun, during which time the gun was at least briefly pointed “directly at” VanVerth. According

to Staimpel, “Steele had more control of the gun” during this time than Staimpel did. “[I]n fear of

imminent danger” and “believing Steele intended to fire his weapon,” each of the three officers fired

at Steele, who then fell out of the car and into the street.1 After Steele was incapacitated, Miles

radioed for an ambulance.

C. Subsequent Procedural Developments

                 On August 1, 2008, at the same time defendants filed their summary-judgment

motion, they filed a motion to stay discovery pending resolution of their qualified-immunity defense.

Plaintiff did not oppose the motion; however, the district court never ruled on it.

                 Plaintiff twice moved to extend the deadline for filing her brief in opposition to

summary judgment, first because plaintiff’s counsel was on trial in an unrelated case, and then



        1
            The affidavits are silent regarding how many bullets were fired in total.

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No. 09-3356
Steele v. City of Cleveland, et al.

because plaintiff’s counsel “ha[d] been involved in a lengthy deposition.” The district court granted

both extensions; plaintiff nonetheless failed to file her brief as scheduled. On November 10, 2008,

plaintiff moved the court for retroactive leave to file her untimely brief; she attributed the

unauthorized delay to the fact that counsel “ha[d] actively been searching for witnesses.”

                On the same date, plaintiff filed a motion styled “Motion to Allow Depositions

Pending the Court’s Ruling on Defendants’ Motion for Summary Judgment.” This motion invoked

no particular Federal Rule of Civil Procedure and was not accompanied by an affidavit. In this

filing, plaintiff made several unsupported claims about the existence of evidence supporting her

version of the story:

        At the time of [Steele’s] wrongful death, Plaintiff obtained statements from witnesses
        that indicated that [Steele] was unarmed and attempting to display his driver’s license
        while at gunpoint. After subsequent inquiry by Cleveland Police, some of the critical
        details provided were unclear and contradicted. Plaintiff asserts that those changes
        were due to undue pressure exerted by the Cleveland Police and its representatives.

        Moreover, the Coroner’s Verdict, which is attached to Plaintiff’s Brief in Opposition,
        provides uncontroverted evidence that Decedent was shot in excess of 12 times to his
        back and shoulder area, by multiple guns.2 This evidence, in and of itself, creates a
        question of fact as to the actions of the police and the necessity of deadly force.

        Accordingly, in order to fully provide the Court with all supporting statements and
        evidence relative to the issues of fact, Plaintiff seeks the Court’s permission to
        schedule the depositions under oath of the following witnesses:

                Tabri Baker
                Jennifer Winborn
                Kerry Kay Mae Bailey
                Harvey West


        2
          The Coroner’s Verdict was not in fact attached to plaintiff’s opposition brief, and, indeed,
so far as we can tell, does not appear anywhere in the record.

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No. 09-3356
Steele v. City of Cleveland, et al.

                Dalontai Pond
                Deputy Coroner Erica Armstrong

        Pending the completion of this discovery, Plaintiff requests the right to supplement
        her Response in Opposition to Defendants’ Motion for Summary Judgment.

                On November 13, 2008, the district court granted plaintiff’s motion to file her belated

opposition brief, and plaintiff did so that same day. In her opposition brief, plaintiff asserted that

the officers’ affidavits were “inconsisten[t] . . . with [the stories of] other witnesses . . . , as well as

[with] the forensics.” However, plaintiff’s filing contained no citations to the record – and, indeed,

the record was barren of any such evidence. Perhaps recognizing as much, plaintiff also asserted in

her opposition brief that “absent discovery proceedings and specifically, the sworn testimony of

eyewitnesses and the Coroner, establishing the nature and location of the injuries, any ruling on

Summary Judgment is premature.”

                Defendants filed their reply memorandum on December 1, 2008. In it, they addressed

plaintiff’s insistence that further discovery was needed:

        Plaintiff asserts . . . that she needs further discovery. However, Plaintiff’s response
        [to defendants’ summary-judgment motion] indicates that she waited over two
        months after the court ordered response to summary judgment deadline in order to
        search for witnesses. Even with the additional time, all Plaintiff supplies in her
        response are mere allegations in pleadings, which is insufficient to support opposition
        to summary judgment.

        Plaintiff has yet to provide Defendants with any information within her control.
        Defendants turned over the City of Cleveland investigative files as required by the
        Court in initial disclosures on August 15, 2008. Plaintiff has yet to provide the same
        disclosures as ordered by this Court. Despite a written request, Plaintiff did not
        respond nor turn over initial disclosures. . . .

        Plaintiff has further failed to support her request for discovery with an affidavit as
        required by Fed. Rule 56(f). Plaintiff’s request seeks to deny Defendants the benefits

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No. 09-3356
Steele v. City of Cleveland, et al.

        of qualified immunity (freedom from the burden of litigation) without providing this
        Court any evidence or affidavit indicating the specific discovery sought, the evidence
        Plaintiff believes will be obtained, or the basis for those beliefs. . . .


                On December 3, 2008, notwithstanding defendants’ objection to further discovery,

the district court granted plaintiff’s “Motion to Allow Depositions Pending the Court’s Ruling on

Defendants’ Motion for Summary Judgment.” As far as the record reflects, however, plaintiff never

actually conducted any such depositions; at minimum, she took no steps to supplement the record

or her memorandum of law.

                On March 4, 2009, the district court issued an order granting defendants’ motion for

summary judgment in its entirety. This appeal timely followed.

                                      STANDARD OF REVIEW

                We review the district court’s denial of summary judgment de novo, using the same

Rule 56(c) standard as the district court. Moldowan v. City of Warren, 578 F.3d 351, 373 (6th Cir.

2009). At the summary-judgment stage, the moving party bears the initial burden of identifying

those parts of the record that demonstrate the absence of any genuine issue of material fact. Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried this burden, the

non-moving party “must do more than rely merely on the allegations of her pleadings . . . ; she is

obliged to come forward with ‘specific facts,’ based on ‘discovery and disclosure materials on file,

and any affidavits,’ showing that there is a genuine issue for trial.” Chappell v. City of Cleveland,

585 F.3d 901, 912 (6th Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586-87 (1986); Fed. R. Civ. P. 56(e)(2)).


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No. 09-3356
Steele v. City of Cleveland, et al.

                Where a party “claim[s] that summary judgment was prematurely entered because

additional discovery was needed,” we review the district court’s refusal to hold the summary-

judgment motion in abeyance pending such additional discovery for abuse of discretion. Vance ex

rel. Hammons v. United States, 90 F.3d 1145, 1149 (6th Cir. 1996); see also Egerer v. Woodland

Realty, Inc., 556 F.3d 415, 426 (6th Cir. 2009).

                                            DISCUSSION

A. Plaintiff’s Entitlement to Additional Discovery

                Federal Rule of Civil Procedure 56(c)(1) provides that “a party may move for

summary judgment at any time until 30 days after the close of all discovery . . . .” (emphasis added).

If the non-moving party is unprepared to respond at the time the movant files for summary judgment,

Rule 56(f) provides as follows:

        If a party opposing the motion shows by affidavit that, for specified reasons, it cannot
        present facts essential to justify its opposition, the court may . . . order a continuance
        to enable affidavits to be obtained, depositions to be taken, or other discovery to be
        undertaken . . . .

(emphases added).

                In this case, plaintiff responded to defendants’ summary-judgment motion with her

“Motion to Allow Depositions Pending the Court’s Ruling on Defendants’ Motion for Summary

Judgment.” As described above, this motion indicated that plaintiff needed time to depose six

individuals “in order to fully provide the Court with all supporting statements and evidence relative

to the issues of fact.” Although this motion did not mention Rule 56(f) – or indeed, any other Rule




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No. 09-3356
Steele v. City of Cleveland, et al.

of Civil Procedure – it was clearly intended to serve the purpose of a Rule 56(f) motion for additional

discovery in advance of summary judgment.

                However, plaintiff’s motion did not provide a supporting affidavit of any kind – let

alone one “stat[ing] with ‘. . . precision the materials [she] hope[d] to obtain with further discovery,

and exactly how [she] expect[ed] those materials would help [her] in opposing summary judgment,’”

as Rule 56(f) requires. Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004) (quoting Simmons Oil

Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138, 1144 (Fed. Cir. 1996)). Accordingly, the district

court arguably was required to deny the motion for additional discovery outright. See ibid. (“In the

absence of a sufficient [Rule 56(f)] affidavit, there is no justification for the district court’s

determination that a motion for summary judgment would be premature . . . .”).3

                Nevertheless, the district court granted plaintiff’s motion, however styled. Even so,

during the three months between that ruling and the district court’s decision on defendants’

summary-judgment motion, plaintiff apparently failed to conduct any of the additional discovery she

had sought. Plaintiff now argues, in effect, that the district court further erred by refusing to hold

defendants’ motion in abeyance until she completed – on her own unspecified schedule – the


        3
           Furthermore, “[b]eyond the procedural requirement of filing an affidavit, Rule 56(f) has
been interpreted as requiring that a party making such a filing indicate to the district court . . . why
it has not previously discovered the information.” Cacevic v. City of Hazel Park, 226 F.3d 483, 488
(6th Cir. 2000). Thus, even if plaintiff had made her motion in the form of an affidavit, the district
court would not have abused its discretion in denying additional discovery, as plaintiff made no
showing why she had been unable to depose these alleged witnesses – or even obtain affidavits from
them – in the six months that had elapsed since the lawsuit was filed (and in the eighteen months that
had elapsed since Steele’s death). “Court after court has made clear that the protection that Rule
56(f) provides is not intended to shield counsel who were dilatory in conducting discovery.” Mallory
v. Noble Corr. Inst., 45 F. App’x 463, 469 (6th Cir. 2002).

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No. 09-3356
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discovery to which she was not lawfully entitled in the first place. We have clearly held, however,

that a Rule 56(f) affidavit is “necessary in order to preserve the argument that the grant of summary

judgment was too hasty and precluded necessary discovery.” Vill. of Oakwood v. State Bank & Trust

Co., 539 F.3d 373, 384 (6th Cir. 2008) (internal quotation marks omitted); see also Cacevic v. City

of Hazel Park, 226 F.3d 483, 488 (6th Cir. 2000) (“Where a party opposing summary judgment and

seeking a continuance pending completion of discovery fails to take advantage of the shelter

provided by Rule 56(f) by filing an affidavit, there is no abuse of discretion in granting summary

judgment if it is otherwise appropriate.” (quoting Pasternak v. Lear Petroleum Exploration, Inc., 790

F.2d 828, 832-33 (10th Cir. 1986))).

B. Defendants’ Entitlement to Summary Judgment on the Merits

                Because the district court did not err by declining to postpone resolution of

defendants’ summary-judgment motion, we must consider whether defendants were entitled to

summary judgment based on the record that was before the district court. As she did below, plaintiff

argues that a genuine issue of material fact precludes summary judgment because unnamed

eyewitnesses claim that Steele was unarmed and forensic evidence outside the record shows that

Steele was shot primarily in the back. However, as the district court correctly noted, these bare

assertions are supported by no record evidence. Because plaintiff “has failed to carry [her] burden

by adducing evidence refuting the detectives’ account of the circumstances they confronted,” no

genuine issue of material fact exists. Chappell, 585 F.3d at 912 (emphasis added).4


        4
         We note, once again, that plaintiff’s complaint was not verified. Cf. Turney v. Catholic
Health Initiatives, 35 F. App’x 166, 168 (6th Cir. 2002) (noting that “a party’s verified complaint

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No. 09-3356
Steele v. City of Cleveland, et al.

                Of course, that alone does not entitle defendants to summary judgment, as a grant of

summary judgment requires both the absence of a genuine issue of material fact and the moving

party’s “entitle[ment] to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). On defendants’

version of events, however, we have little trouble concluding that they are so entitled.

                Defendants have invoked qualified immunity, which “shields government officials

from liability for civil damages if their actions did not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Chappell, 585 F.3d at 907

(citing Pearson v. Callahan, 129 S. Ct. 808, 815 (2009)). This defense “ordinarily applies unless

it is obvious that no reasonably competent official would have concluded that the actions taken were

[]lawful.” Ibid. When qualified immunity is asserted, the plaintiff bears the burden of showing that

the defendants are not entitled to that defense. Ibid. Specifically, the plaintiff “must show both that,

viewing the evidence in the light most favorable to her, a constitutional right was violated and that

the right was clearly established at the time of the violation.” Ibid.

                Here, as the district court correctly concluded, the plaintiff has failed to show the

violation of a constitutional right. The use of deadly force is objectively reasonable under the Fourth

Amendment where “[an] officer has probable cause to believe that the suspect poses a threat of

serious physical harm, either to the officer or others.” Tennessee v. Garner, 471 U.S. 1, 11 (1985);

see also Williams v. City of Grosse Pointe Park, 496 F.3d 482, 487 (6th Cir. 2007) (“[A]n officer

may use deadly force whenever he or she, in the face of a rapidly evolving situation, has probable


may be considered as evidence in establishing a genuine issue of material fact” (emphases added)).
Further, plaintiff’s claim that Steele was unarmed does not appear in her complaint at all.

                                                 - 10 -
No. 09-3356
Steele v. City of Cleveland, et al.

cause to believe that a suspect poses a serious physical threat either to the police or members of the

public.”). Further, the reasonableness of a particular use of force “must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”; in

other words, “[t]he calculus of reasonableness must embody allowance for the fact that police

officers are often forced to make split-second judgments – in circumstances that are tense, uncertain,

and rapidly evolving – about the amount of force that is necessary in a particular situation.” Graham

v. Connor, 490 U.S. 386, 396-97 (1989).

                Here, the sole evidence of record shows that Steele, in violation of the officers’

repeated orders, dove suddenly into his car and reached for a gun. At the time the officers shot him,

he was physically wrestling one of those officers for control of the weapon, and was winning.5

During the struggle, the gun was pointed directly at another one of the officers. Under these

circumstances, “it is apparent that if the [officers] had hesitated . . . , they would have been . . .

vulnerable to serious or even fatal injury.” Chappell, 585 F.3d at 911 (finding use of deadly force

justified where suspect “was continuing to move quickly toward [officers] and had closed to within

seven feet with [a serrated steak] knife held high”). It is clear, therefore, that the Garner standard

for the use of deadly force was satisfied. While Steele’s fate is certainly tragic, no Fourth

Amendment violation occurred.6


        5
          For what it is worth, plaintiff’s own brief states (again, without any citation to the record)
that Steele “was over 6 feet tall and weighed more than 300 pounds . . . .”
        6
         Plaintiff appears to argue that even if some quantum of deadly force was justified under the
circumstances, the sixteen gunshots allegedly fired at Steele were nevertheless excessive. However,
we need not consider here whether an officer lawfully entitled to shoot to kill may nonetheless

                                                 - 11 -
No. 09-3356
Steele v. City of Cleveland, et al.

                Thus, as the district court concluded, the defendant officers are entitled to qualified

immunity. See Chappell, 585 F.3d at 916 n.2 (“Because plaintiff has failed to make the requisite

showing of the violation of a constitutional right, we need not address the second prong of the

qualified immunity analysis and determine whether the asserted right was clearly established in a

particularized sense at the time of the fatal shooting.”). For the same reason, summary judgment was

properly granted with respect to plaintiff’s state-law claims. See id. at 916 n.3 (“Inasmuch as

plaintiff has failed to demonstrate that defendants’ conduct was objectively unreasonable [under the

Fourth Amendment], it follows that she has also failed to demonstrate that defendants acted with

‘malicious purpose, in bad faith, or in a wanton or reckless manner,’ such as is required to avoid

statutory immunity under [Ohio Revised Code § 2744.03(A)(6)(b)].”); see also Cabaniss v. City of

Riverside, 231 F. App’x 407, 418 (6th Cir. 2007).

                Finally, the district court also correctly held that the absence of a constitutional

violation compelled the grant of summary judgment with respect to plaintiff’s failure-to-train claim

against the City. See Cain v. Irvin, 286 F. App’x 920, 928 (6th Cir. 2008) (“Without a constitutional

violation, plaintiff’s concomitant municipal liability claim fails as a matter of law.” (citing City of

Los Angeles v. Heller, 475 U.S. 796, 799 (1986))); Frost v. Hawkins County Bd. of Educ., 851 F.2d

822, 827 (6th Cir. 1988) (stating that the “finding[] that a police officer inflicted no constitutional

injury on a plaintiff is conclusive not only as to the officer’s liability, but also as to the liability of

the city” (citing Heller, 475 U.S. at 799)).


violate the Fourth Amendment by pulling the trigger too many times, as plaintiff’s figure of sixteen
bullets does not actually appear in the record.

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                                        CONCLUSION

                For the foregoing reasons, the judgment of the district court is AFFIRMED.




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