                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 08a0140p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                         X
                                                          -
 BESSIE JONES, Administratrix of the Estate of

                                  Plaintiffs-Appellees, -
 Nathaniel Jeffrey Jones, Deceased, et al.,
                                                          -
                                                          -
                                                              No. 06-4528

                                                          ,
            v.                                             >
                                                          -
                                                          -
                               Defendants-Appellants. -
 CITY OF CINCINNATI, et al.,

                                                          -
                                                         N
                          Appeal from the United States District Court
                         for the Southern District of Ohio at Cincinnati.
                         No. 04-00616—Susan J. Dlott, District Judge.
                                          Argued: February 5, 2008
                                     Decided and Filed: April 4, 2008
        Before: MARTIN and SUTTON, Circuit Judges; OBERDORFER, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Richard Ganulin, CITY SOLICITOR’S OFFICE FOR THE CITY OF CINCINNATI,
Cincinnati, Ohio, for Appellants. Eric C. Deters, ERIC C. DETERS & ASSOCIATES, P.S.C.,
Independence, Kentucky, for Appellees. ON BRIEF: Richard Ganulin, CITY SOLICITOR’S
OFFICE FOR THE CITY OF CINCINNATI, Cincinnati, Ohio, for Appellants. Eric C. Deters,
ERIC C. DETERS & ASSOCIATES, P.S.C., Independence, Kentucky, for Appellees.
                                             _________________
                                                 OPINION
                                             _________________
        OBERDORFER, District Judge. Defendants appeal the district court’s partial denial of their
motion to dismiss Fourth and Fourteenth Amendment claims based on 42 U.S.C. § 1983 brought
against them by representatives and relatives of Nathaniel Jones, a 350-pound 41-year old African
American who died after Cincinnati police officers subdued and placed him under arrest. Because
the defendants are not entitled to qualified immunity on the basis of the facts alleged in the
complaint, we affirm.


        *
         The Honorable Louis F. Oberdorfer, Senior United States District Judge for the District of Columbia, sitting
by designation.


                                                         1
No. 06-4528           Jones, et al. v. City of Cincinnati, et al.                               Page 2


                                                   I.
        Because this is an appeal from the denial of a Rule 12(b)(6) motion to dismiss, the following
account accepts as true the facts alleged in the complaint – in this case, the second amended
complaint. On Sunday, November 30, 2003, during the early morning, Jones was visiting friends
at a White Castle restaurant in Cincinnati. He became ill and fell unconscious in the parking lot.
A White Castle employee called 911 to summon medical assistance. Several firefighters, who are
defendants in this suit but not a subject of this appeal, arrived and refused to treat Jones. Jones woke
up and began walking and dancing; he caused no damage to any persons or property. The
firefighters summoned the police and described Jones as a nuisance.
        Officers James Pike and Baron Osterman arrived in response to the firefighters’ summons.
Shortly thereafter, the firefighters left the scene. At about, or shortly after, the time of their
departure, Pike called dispatch to request a Medical Help Response Team and a supervisor with a
taser. Pike and Osterman then approached Jones and tried to subdue him, even though Jones
presented no danger to any property or persons. Pike and Osterman began to savagely beat Jones
with their batons. Officers Guy Abrams, Joehonny Reese, and Thomas Slade arrived and began
using their batons on Jones. The officers struck Jones at least 33 times, giving him no chance to
comply with orders to put his hands behind his back. They continued to strike Jones while he was
on his hands and knees.
        Officers Pike and Slade sprayed chemical irritant in Jones’s face while he was prone in
handcuffs and while officers Pike, Osterman, Abrams, Reese, Slade, and Jay Johnstone used their
combined weight to hold him down. Their weight restricted the movement of Jones’s diaphragm
and made it difficult for him to breathe. Jones struggled to twist his body under the officers in an
attempt to breathe. In response, the officers pressed down on him even harder. Once they had
subdued Jones, they left him face down on the ground handcuffed behind his back for a prolonged
period of time. During this time, Jones stopped breathing; all the officers knew it. Reese saw Jones
changing color. Johnstone, Reese, and Abrams knew that a suspect lying face down risked
positional asphyxia (difficulty breathing due to one’s posture or position). None of the officers
provided mouth-to-mouth resuscitation or other respiratory aid. Instead, they stood there and
discussed the absence of fire personnel.
        Police Sergeant James Waites arrived while Jones was still lying face down. The sergeant
was aware of the risks of positional asphyxia but did not order Jones rolled over or undertake to do
so himself. Two other police sergeants, Jeffrey Battison and Leroy Brazile, arrived on the scene.
All three sergeants noticed Jones was not breathing. None of the sergeants provided any medical
aid and each knew that no other officers were providing aid. Waites did not order officers to
perform mouth-to-mouth because he saw that Jones was frothing at the mouth and they had no
protective mouth barrier. Instead, Battison summoned emergency medical services. The officers
all knew that it was impossible to render proper medical aid while Jones remained in handcuffs.
Their failure to remove the handcuffs delayed the administration of aid and hastened Jones’s death.
        Finally, plaintiffs allege that the City, as well as Chief of Police Thomas Streicher and now
former City Manager Valerie Lemmie as policymakers for the City, are responsible for the officers’
actions because the policymakers allowed officers to use excessive force against citizens without
facing discipline, failed to provide adequate training to the officers or promulgate adequate policies
addressing the use of force or the dangers of positional asphyxia, failed to discipline officers whose
conduct put individuals at risk of positional asphyxia, and failed to provide officers with equipment
– such as mouth barriers for mouth-to-mouth resuscitation – to aid those suffering from positional
asphyxia.
No. 06-4528           Jones, et al. v. City of Cincinnati, et al.                                Page 3


        Jones’ grandmother and administratrix of his estate and Jones’ two minor sons filed a
complaint in the United States District Court for the Southern District of Ohio against sixteen
defendants: the City of Cincinnati, Cincinnati Chief of Police Streicher, Cincinnati Fire Chief
Robert Wright, now former City Manager Lemmie, the six police officers present during the struggle
with Jones (Abrams, Pike, Reese, Johnstone, Osterman, and Slade), three police sergeants who
arrived at the scene after the struggle (Brazile, Waites, and Battison), and three Cincinnati
firefighters (Gregory Adams, Tyrone Harrison, and Brian Otten). The complaint alleged that the
defendants violated Jones’s Fourth Amendment right to be free from excessive force and his
Fourteenth Amendment right to adequate medical care while detained by the state. The complaint
also contained claims for relief under Ohio law for wrongful death, gross negligence, and loss of
consortium.
        The defendants moved to dismiss the entire complaint on the grounds that the complaint fails
to state a claim, the individual defendants are entitled to qualified immunity on the constitutional
claims, and all defendants are entitled to statutory immunity under Ohio law on the state law claims.
Defendants appeal the district court’s (1) denial of the motion to dismiss the claims against the City,
Chief of Police Streicher, City Manager Lemmie, and Officers Abrams, Pike, Reese, Johnstone,
Osterman, and Slade for use of excessive force and for failure to provide adequate medical care; and
(2) denial of the motion to dismiss the claim against Police Sergeants Waites, Battison, and Brazile
for failure to provide adequate medical care.
                                                   II.
          We review de novo the district court’s ruling on a motion to dismiss a claim. Association
of Cleveland Firefighters v. City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007). A claim survives
such a motion if its “[f]actual allegations [are] enough to raise a right to relief above the speculative
level on the assumption that all of the complaint’s allegations are true.” Bell Atl. Corp. v. Twombly,
--- U.S. ----, 127 S.Ct. 1955, 1959 (2007). “[W]hen a complaint adequately states a claim, it may
not be dismissed based on a district court’s assessment that the plaintiff will fail to find evidentiary
support for his allegations or prove his claim to the satisfaction of the factfinder.” Id. at 1970.
“[W]e construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d
471, 476 (6th Cir. 2007). “[W]e need not accept as true legal conclusions or unwarranted factual
inferences.” Id.
        Police enjoy qualified immunity unless (1) the facts alleged show that the police violated a
constitutional right; and (2) the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201
(2001). We analyze the plaintiffs’ claims for excessive force separately from the claim that
defendants failed to provide adequate medical care.
        Excessive Force. “[C]laims that law enforcement officers have used excessive force – deadly
or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be
analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490
U.S. 386, 395 (1989). The complaint alleges that the six officers who subdued Jones (1) savagely
beat him with batons, striking him at least 33 times without giving him a chance to comply with their
orders; (2) sprayed chemical irritant in his face after they had placed him in handcuffs; and (3) used
their combined weight to hold him prone on the ground after he had stopped struggling. Such use
of force is not objectively reasonable, and hence a violation of Jones’s Fourth Amendment rights.
See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901-02 (6th Cir. 2004) (noting that baton
strikes “applied after the subduing of a suspect are unreasonable” and holding that lying on top of
a suspect such as Jones and spraying chemical irritant in his face when he “had stopped resisting
arrest and posed no flight risk” are unreasonable). The right of an unresisting suspect to be free from
baton strikes, “significant pressure on [his] back,” and a dose of chemical irritants was clearly
No. 06-4528           Jones, et al. v. City of Cincinnati, et al.                                Page 4


established over three years before Jones died. See id at 902-03. Therefore, the officers who
subdued Jones are not entitled to qualified immunity on the excessive force claim.
        Failure to Provide Medical Care to Detainee. “[D]eliberate indifference” to the serious
medical needs of pretrial detainees normally constitutes a substantive due process violation. Estate
of Owensby v. City of Cincinnati, 414 F.3d 596, 602 (6th Cir. 2005). “[W]hen unforeseen
circumstances demand an officer's instant judgment,” a heightened standard of malice and intent to
harm applies. Id. at 603. The defendants argue that this case should be analyzed under the
heightened malice standard because there was little time between taking Jones into custody and the
time he stopped breathing. We disagree. The complaint alleges that the officers left Jones on the
ground for a prolonged time and that they “stood there and discussed the absence of fire personnel”
after they noticed Jones was not breathing. These facts are similar to those in Owensby, in which
this Court ruled that the deliberate indifference standard was appropriate because the six minutes
between taking the suspect into custody and the time medical care was provided gave the officers
“time to fully consider the potential consequences of their conduct.” Id. (internal quotation marks
omitted).
         “Deliberate indifference requires that the defendants knew of and disregarded a substantial
risk of serious harm to [the pretrial detainee’s] health and safety.” Id. (brackets in original, internal
quotation marks omitted). The complaint alleges that each of the officers present – the six who
subdued Jones and the three sergeants who arrived afterwards – knew that the handcuffed Jones was
not breathing. Therefore each knew of a substantial risk of serious harm to Jones’s safety while he
was in their custody and disregarded that risk by failing to provide aid. The right of a suspect in
custody to receive adequate medical care, even if the suspect had been fleeing and resisting before
the officers placed him in custody, was clearly established almost three years before Jones’s death.
Id. Therefore, the officers who subdued Jones and the sergeants who arrived soon after are not
entitled to qualified immunity on the failure to provide medical care claim.
         Municipality and City Officials. The City, Chief of Police Streicher, and City Manager
Lemmie are likewise not entitled to qualified immunity on the constitutional claims. A municipality
is liable for a constitutional violation when execution of the municipality’s policy or custom inflicts
the alleged injury. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). The official policy or
custom “must be the moving force of the constitutional violation” to establish the liability of a
government body. Polk County v. Dodson, 454 U.S. 312, 326 (1981). A municipality cannot be
held liable under § 1983 absent an underlying constitutional violation by its officers. City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986). However, where a failure to train is the result of a
municipality’s policy or custom and results in a constitutional violation by its officers, a city can be
held liable under § 1983. City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989).
        The only argument the defendants make on appeal concerning liability of the City and its
policymakers is that there was no underlying constitutional violation by its officers. This argument
fails. We have already rejected defendants’ contention that the officers should receive qualified
immunity. The complaint alleges that the City’s inadequate training regarding both use of force and
positional asphyxia associated with such force, tolerance of officers’ use of excessive force, and
policies regarding use of force and medical care of suspects all, if proven, would violate the
Constitution.
                                                  III.
        Throughout their briefs, defendants do not directly challenge the proposition that the facts
alleged in the complaint state valid constitutional claims. Rather, they state that facts not alleged
in the complaint support their claim of qualified immunity. For example, defendants state that Jones
attacked Officers Pike and Osterman, that officers did not “savagely beat” Jones but rather prodded
No. 06-4528           Jones, et al. v. City of Cincinnati, et al.                               Page 5


him with batons to create sufficient pain to achieve compliance, and that Jones was only on his
stomach for a few seconds before officers rolled him over. Brief of Defendants-Appellants at 5-8.
As support for their version of the facts, defendants cite a series of exhibits attached to the
complaint. These exhibits include transcripts of interviews by a Cincinnati Citizen Complaint
Authority investigator with the officers who subdued Jones (Exs. 1-5, 8) and excerpts from the
Citizen Complaint Authority report on the incident (Ex. 6). Unsurprisingly, statements by the
officers contain facts which, if true, cast doubt on the allegations in the complaint.
        Defendants argue that because a “copy of a written instrument that is an exhibit to a pleading
is a part of the pleading for all purposes,” Fed. R. Civ. P. 10(c), all the facts stated in the exhibits
to the complaint must be assumed to be true for purposes of the motion to dismiss. Even if we
assume that a transcript of an interview constitutes a “written instrument,” treating a transcript as
part of a pleading does not mean that we assume everything the officers said in those interviews is
true. Where a plaintiff attaches to the complaint a document containing unilateral statements made
by a defendant, where a conflict exists between those statements and the plaintiff’s allegations in
the complaint, and where the attached document does not itself form the basis for the allegations,
Rule 10(c) “does not require a plaintiff to adopt every word within the exhibits as true for purposes
of pleading simply because the documents were attached to the complaint to support an alleged
fact.” See N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 454–56 (7th Cir.
1998). Rather, we treat the exhibit as an allegation that the officers made the statements in the
transcripts and we treat that allegation as true. Thus, we accept as true that on June 24, 2004 Officer
Pike said that no officer put weight on Jones’s back during the handcuffing process. Joint Appendix
177. We do not accept as true, however, that Officer Pike’s statement is accurate or true; this is a
question of credibility and weight of the evidence that is not before a court considering a motion to
dismiss.
                                                  IV.
         The court did not abuse its discretion when it disregarded evidence that the defendants filed
in support of their motion to dismiss, including public documents and a videotape of the incident.
On a motion to dismiss, a court may accept “matters outside the pleadings,” but in doing so it
generally must treat the motion “as one for summary judgment under Rule 56.” Fed. R. Civ. P.
12(d). A court may consider public records without converting a Rule 12(b)(6) motion into a Rule
56 motion. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999). Where the evidence
“captures only part of the incident and would provide a distorted view of the events at issue,” as the
district court concluded with respect to the videotape, we do not require a court to consider that
evidence on a 12(b)(6) motion. See Passa v. City of Columbus, 123 F. App’x 694, 697 (6th Cir.
Feb. 16, 2005) (“[I]n order to preserve a party’s right to a fair hearing, a court, on a motion to
dismiss, must only take judicial notice of facts which are not subject to reasonable dispute.”).
                                                  V.
       For these reasons, we affirm the decision of the district court and remand the case for
discovery, summary judgment, and, if necessary, a trial to resolve the disputed factual issues.
