                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                            File Name: 14a0157p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


 ESSEX HAYWARD; ANNIE HAYWARD; AARON ┐
 HAYWARD,                                         │
                           Plaintiffs-Appellants, │
                                                  │                       No. 13-3132
                                                  │
       v.                                         >
                                                  │
                                                  │
 CLEVELAND CLINIC FOUNDATION, et al.,             │
                         Defendants-Appellees. │
                                                  ┘
                             Appeal from the United States District Court
                            for the Northern District of Ohio at Cleveland
                          No. 1:12-cv-00002—Dan A. Polster, District Judge.
                                       Argued: December 5, 2013
                                    Decided and Filed: July 21, 2014

            Before: CLAY and ROGERS, Circuit Judges; LUDINGTON, District Judge.*
                                  _________________

                                                 COUNSEL

ARGUED: Samuel S. Riotte, Chesterland, Ohio, for Appellants. James R. Wooley, JONES
DAY, Cleveland, Ohio, for Appellees. ON BRIEF: Samuel S. Riotte, Chesterland, Ohio, for
Appellants. James R. Wooley, Katie M. McVoy, JONES DAY, Cleveland, Ohio, for Appellees.
                                           _________________

                                                 OPINION
                                           _________________

        CLAY, Circuit Judge. Plaintiffs Aaron, Annie, and Essex Hayward appeal the district
court’s orders granting Defendants’ motions for judgment on the pleadings. Following an

        *
           The Honorable Thomas L. Ludington, United States District Judge for the Eastern District of Michigan,
sitting by designation.




                                                       1
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.                 Page 2

altercation between Plaintiffs and Defendants (officers of the Cleveland Clinic Police
Department (“CCPD”)), which occurred at the home of Annie and Essex Hayward, Plaintiff
Aaron Hayward pleaded guilty to willfully fleeing a police officer and resisting arrest, admitting
that he physically injured an officer in the process. Plaintiffs subsequently filed federal civil
rights claims pursuant to 42 U.S.C. § 1983 and state law tort claims against Defendants. During
the extensive filing of complaints and answers, Defendants moved twice for judgment on the
pleadings. The district court first dismissed some of the claims on the merits, and eventually
dismissed all of the claims in an order dated January 11, 2013. Plaintiffs timely appealed the
dismissal of their claims. For the reasons that follow, this Court REVERSES the district court’s
order dismissing Annie and Essex Hayward’s § 1983 claim for illegal home entry and their state
law intentional infliction of emotional distress claim, and REMANDS for further proceedings
consistent with this opinion. The Court AFFIRMS the district court’s order granting Defendants’
motions for judgment on the pleadings as to Plaintiffs’ other claims, including Aaron Hayward’s
§ 1983 claims and Annie and Essex Hayward’s state law assault claim.

                                                  I.

                                         BACKGROUND

A.     Factual Background

       Plaintiffs and Defendants differ in their versions of the relevant events. Because this
appeal comes before us on a motion for judgment on the pleadings, we “construe[] the complaint
in the light most favorable to the plaintiff[s] [and] accept[] the plaintiff[s’] factual allegations as
true.” Heinrich v. Waiting Angels Adoption Servs., Inc., 668 F.3d 393, 403 (6th Cir. 2012).
Therefore, this Court considers the facts as alleged by Plaintiffs in their complaints.

       Plaintiffs allege that Aaron Hayward was driving home from his parents’ store early in
the morning, around 4:00 a.m. on January 23, 2011, when a CCPD SUV pulled up behind him
and followed him until he turned into his driveway and parked his car. Up to this point, the
officer’s marked SUV neither sounded a siren nor flashed its lights. The officer yelled, “Hey
you, come over here, boy,” at Aaron as he exited his car and entered the home that he shared
No. 13-3132                 Hayward, et al. v. Cleveland Clinic Found.                Page 3

with his parents, Annie and Essex Hayward. (R. 1, Compl., at 12.)1 Defendants admit that up to
the time Aaron entered the home, it was not communicated to Aaron that he was under arrest.

       When Aaron ignored the officer’s order, the officer radioed for additional help, claiming
that he was attempting to make a traffic stop, but did not indicate that there was any danger to
himself or any individuals inside the home. Approximately ten to fifteen minutes later, five
additional officers arrived at the scene. They began pounding on the Haywards’ front door,
demanding that they “open the fucking door.” (R. 30, Second Am. Compl., at 477.) Plaintiffs
Annie and Essex Hayward awoke to the sounds of the pounding on the door. Once downstairs,
they saw blue and red flashing lights and several men who appeared to be police officers.
Plaintiff Essex Hayward opened the main, wooden door to their home and Defendants continued
trying to force their way through the outer security door. At that time, realizing that the men
were Cleveland Clinic security officers, Essex Hayward mentioned calling the actual Cleveland
police to their home. At some point during this encounter, Plaintiffs realized that the officers
were wearing police badges depicting the Ohio state seal.

       Plaintiffs shut the main, wooden door once again and Defendants forced open the outer
security door by breaking its glass. At this time, the outer security door now ajar, Aaron used his
foot and body to prevent the officers from breaking down the main door. So the officers became
more aggressive in attempting to enter the home. They used the butt of a shotgun to shatter the
main door’s small window. Once that occurred, Annie and Essex called 911. One of the officers
then stuck a taser through the shattered window and blindly fired into Plaintiffs’ home.
Eventually, Defendants struck Aaron with taser probes, which he was able to remove from his
body. The officer blindly deployed the taser for a second time, striking Aaron again and this
time causing him to fall to the ground. Once Aaron was no longer pressed up against the
wooden door, Defendants broke through the main door and poured into Plaintiffs’ home. They
tased Aaron again to gain control, as he continued struggling to defend and protect himself and
his parents. Defendants then dragged Aaron outside to the driveway, where they allegedly beat
him with their batons, kicked him in the head and other parts of his body, stunned him with a


       1
           Citations to the record are accompanied by reference to Page ID numbers.
No. 13-3132                 Hayward, et al. v. Cleveland Clinic Found.                        Page 4

taser, and called him a “black nigger” before they handcuffed and officially arrested him. (Id. at
469.)2 Plaintiffs claim that Aaron was tased altogether in excess of thirty seconds.

        At this point, the officers demanded identification from Annie and Essex. After Essex
questioned their demand, at least one of the officers threatened to punch Annie and Essex in the
face, break their teeth, and take them to jail if they failed to comply with the order and present
identification.

        Plaintiffs allege that throughout the encounter, Aaron yelled that he had not done
anything wrong, and the officers failed to indicate the purpose of the arrest. Additionally,
Plaintiffs allege that they were verbally abused by Defendants, who made threats and used racial
epithets throughout the encounter.

B.      Procedural History

        After this incident, Plaintiff Aaron Hayward pleaded guilty to willfully fleeing a police
officer and resisting arrest under Ohio Revised Code § 2921.33, admitting that he physically
injured an officer in the process.            Plaintiff and his parents, Annie and Essex Hayward,
subsequently brought a § 1983 suit against the officers. In their joint complaint, they alleged
various constitutional violations, including excessive force and illegal home entry, as well as
various state law claims such as assault and intentional and negligent infliction of emotional
distress. The district court requested additional briefing on the issue of whether Defendants were
state actors such that § 1983 claims could be alleged against them. Plaintiffs subsequently filed a
first amended complaint on January 10, 2012, which continued to allege the same § 1983 and
state law claims, but added information to prove that the officers were, in fact, state actors. That
issue is not in dispute before this Court. Defendants filed an answer and a motion for judgment
on the pleadings on February 14, 2012.

        Based on its interpretation of Heck v. Humphrey, 512 U.S. 477 (1994), the district court
issued an order on April 3, 2012, explaining that Plaintiffs’ first amended complaint would be

        2
           Although the complaints assert that Plaintiff Aaron Hayward was already in custody when dragged out to
the driveway, Plaintiffs’ brief before this Court states that the officers “physically dragged Aaron from inside his
residence to his driveway outside, where they got him under control and cuffed him.” Pls.’ Br. at 12. Plaintiffs do
not allege additional force was used against Aaron after he was officially handcuffed and arrested.
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.                 Page 5

dismissed if Plaintiffs did not submit a second amended complaint eliminating all pre-arrest
claims and only including post-arrest § 1983 claims. The order stated, “To avoid application of
Heck to their § 1983 claim, Plaintiffs must allege and prove that the Cleveland Clinic police
officers used force against Aaron after the arrest had already been effectuated, i.e. after Aaron
had been arrested and subdued.” (R. 29, 4/3/2012 Order, at 462.) The district court indicated,
however, that Plaintiffs could retain their state law claims in the second amended complaint as
previously alleged in the first amended complaint. Thereafter, Plaintiffs filed a second amended
complaint on April 13, 2012. Plaintiffs continued to allege their state law claims for assault and
battery as well as intentional infliction of emotional distress. However, responding to the district
court’s order, they removed their claims based on the officers’ pre-arrest conduct. Instead, they
asserted claims for search and seizure, privacy, post-arrest excessive force, and failure to train.

       Following submission of Plaintiffs’ second amended complaint, Defendants again moved
for partial summary judgment on the pleadings on May 4, 2012. On July 11, 2012, the district
court granted the motion. Specifically, the court rejected Plaintiffs’ state law claims. The court
held that Annie and Essex’s battery claim failed because they did not allege that “the officers
touched them.” (R. 50, 7/11/2012 Op. and Order, at 723.) Moreover, the court concluded that
Annie and Essex’s assault claim was without merit because they had not pleaded any “physical
gesture . . . indicating an offensive touching was imminent.” (Id. at 724 (internal quotation
marks omitted).) Finally, the court rejected all three Plaintiffs’ intentional infliction of emotional
distress claims as either barred by Heck (Aaron) or simply without merit (Annie and Essex).

       The court also determined that Plaintiffs’ federal causes of action were without merit.
Annie and Essex’s unreasonable seizure claim was rejected because the court concluded that the
force employed against them was in fact reasonable. The court also concluded that Plaintiffs’
Monell and supervisory liability claims were meritless. Accordingly, the district court dismissed
with prejudice “all the claims asserted by Plaintiffs Annie and Essex Hayward as well as Plaintiff
Aaron Hayward’s intentional-infliction-of-emotional-distress claim and his § 1983 claims.” (Id.
at 730.)

       After the district court dismissed all but a few of Aaron’s claims, Plaintiffs then moved to
dismiss the remaining claims without prejudice so that they could refile in state court before the
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.              Page 6

applicable statute of limitations expired. According to Plaintiffs, this would preserve appealable
issues for the Sixth Circuit. The district court denied Plaintiffs’ motion to dismiss on December
19, 2012, because “[g]ranting the motion to dismiss would allow Plaintiffs to file the new
complaint without having to justify it, thereby making an end run around this Court’s order
directing him to explain the reason for the amended complaint. Granting the motion to dismiss
would also be a waste of time and resources . . . . [and] would prejudice Defendants.” (R. 55,
12/19/2012 Order, at 743–44.)

       On December 27, 2012, the district court issued an order allowing Plaintiffs to file a third
amended complaint raising, on Aaron’s behalf, pre-arrest excessive force claims: “the Court will
give Plaintiff Aaron Hayward one last opportunity to file . . . an amended complaint that brings
one excessive force claim against Defendants for the force they used on him prior to his arrest.”
(R. 57, 12/27/2012 Order, at 776.)

       On January 11, 2013, the same day Plaintiffs submitted their third amended complaint
asserting Aaron’s excessive force claim, the district court sua sponte dismissed on the merits all
remaining claims in the case. The court noted that the “sole purpose for the [third amended
complaint] is to provide a vehicle for en banc review of existing Sixth Circuit authority
interpreting Heck v. Humphrey, 512 U.S. 477 (1994), as applied to this case.” (R. 61, 1/11/2013
Order, at 786.) Having already determined Heck’s application to the case, the district court
decided that “[i]t would, therefore, be a needless exercise in formalism to require the parties to
re-argue that issue.” Id. at 788. After the district court dismissed Plaintiffs’ third amended
complaint, they filed this appeal.

                                               II.

                                         DISCUSSION

A.     Standard of Review

       A district court’s decision to grant a party’s motion to dismiss on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c) is reviewed de novo.          Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010). “The standard of review applicable to a motion for
judgment on the pleadings . . . is the same de novo standard applicable to a motion to dismiss
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.               Page 7

under Rule 12(b)(6).” Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511–12 (6th Cir. 2001)
(citing Mixon v. Ohio, 193 F.3d 389, 399–400 (6th Cir. 1999)). “In reviewing a motion for
judgment on the pleadings, we ‘construe the complaint in the light most favorable to the plaintiff,
accept all of the complaint’s factual allegations as true, and determine whether the plaintiff
undoubtedly can prove no set of facts in support of the claims that would entitle relief.’” Aho v.
Cleveland-Cliffs, Inc., 219 F. App’x 419, 422 (6th Cir. 2007) (quoting Grindstaff v. Green,
133 F.3d 416, 421 (6th Cir. 1998)); see also JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d
577, 581–82 (6th Cir. 2007). Under Ashcroft v. Iqbal, 556 U.S. 662 (2009), which governs
motions to dismiss, “[t]he factual allegations in the complaint need to be sufficient to give notice
to the defendant as to what claims are alleged, and the plaintiff must plead ‘sufficient factual
matter’ to render the legal claim plausible, i.e., more than merely possible.” Fritz, 592 F.3d at
722 (quoting Iqbal, 556 U.S. at 678).

B.     Plaintiff Aaron Hayward’s § 1983 Illegal Home Entry and Excessive Force Claims

       The district court dismissed Plaintiff Aaron Hayward’s § 1983 claims for pre-arrest
illegal entry and excessive force based on its interpretation of Heck.

       1.      Heck v. Humphrey

       In Heck, the Supreme Court held that a plaintiff cannot assert a § 1983 claim if success
on that claim would “necessarily imply the invalidity” of an underlying state criminal conviction,
unless the plaintiff can “prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas corpus.”
512 U.S. at 486–87. The Court was concerned that “§ 1983 and the federal habeas corpus
statute, 28 U.S.C. § 2254, were ‘on a collision course.’” Dyer v. Lee, 488 F.3d 876, 880 (11th
Cir. 2007) (quoting Heck, 512 U.S. at 492 (Souter, J., concurring)). The Court in Heck explained
that

       when a state prisoner seeks damages in a § 1983 suit, the district court must
       consider whether a judgment in favor of the plaintiff would necessarily imply the
       invalidity of his conviction or sentence; if it would, the complaint must be
       dismissed unless the plaintiff can demonstrate that the conviction or sentence has
       already been invalidated.
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.                Page 8

512 U.S. at 487. On the other hand, “if the district court determines that the plaintiff’s action,
even if successful, will not demonstrate the invalidity of any outstanding criminal judgment
against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to
the suit.” Id.

        In this Circuit, there are two circumstances under which Heck may apply to bar a § 1983
claim. “The first is when the criminal provision makes the lack of excessive force [or the lack of
an illegal entry] an element of the crime.” Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010)
(citing Heck, 512 U.S. at 486 n.6). “The second is when excessive force [or illegal entry] is an
affirmative defense to the crime . . . .” Id. (citing Cummings v. City of Akron, 418 F.3d 676, 684
(6th Cir. 2005), for the proposition that “an assault conviction barred an excessive-force claim
because the plaintiff did not raise excessive force as a defense.”). See also Gottage v. Rood,
533 F. App’x 546, 550 (6th Cir. 2013); Walker v. City of Lebanon, No. 3:12–CV–855–H, 2013
WL 6185402, at *4 (W.D. Ky. Nov. 25, 2013). In each of these circumstances, the § 1983 suit
would “seek[] a determination of a fact that, if true, would have precluded the conviction.”
Schreiber, 596 F.3d at 334.       Therefore, in this Circuit, if a plaintiff asserts a claim that
contradicts an element of an underlying criminal offense, or if that claim could have been
asserted in criminal court as an affirmative defense, Heck applies to bar the § 1983 suit.

        In Heck, the Supreme Court considered a hypothetical that closely tracks the
circumstances of this case. The hypothetical reads as follows:

        A state defendant is convicted of and sentenced for the crime of resisting arrest,
        defined as intentionally preventing a peace officer from effecting a lawful arrest
        . . . . He then brings a § 1983 action against the arresting officer, seeking damages
        for violation of his Fourth Amendment right to be free from unreasonable
        seizures. In order to prevail in this § 1983 action, he would have to negate an
        element of the offense of which he has been convicted. Regardless of the state
        law concerning res judicata . . . the § 1983 action will not lie.

Heck, 512 U.S. at 486 n.6 (internal citations omitted). The Court noted that this statutory
language is an example of the “common definition of [the resisting arrest] offense.” Id. (citing
People v. Peacock, 496 N.E.2d 683 (N.Y. 1986); 4C. Torcia, Wharton’s Criminal Law § 593, at
307 (14th ed. 1981)). Although the hypothetical concerned a Fourth Amendment claim to be
free from unreasonable seizure, the logic applies equally in other contexts. Plaintiff Aaron
No. 13-3132              Hayward, et al. v. Cleveland Clinic Found.               Page 9

Hayward pleaded guilty to resisting arrest pursuant to Ohio Revised Code § 2921.33. This Court
must examine the statute to determine whether the district court properly applied Heck to bar
Plaintiffs’ § 1983 claims.

        The Ohio resisting arrest statute requires as an element of the offense a “lawful arrest.”
Ohio Rev. Code § 2921.33. The State’s resisting arrest statute reads as follows: “no person,
recklessly or by force, shall resist or interfere with a lawful arrest of the person or another.”
Ohio Rev. Code § 2921.33(A) (emphasis added). “[A] ‘lawful arrest’ is an essential element of
resisting arrest under R.C. 2921.33(A) and [an] appellant [can]not be convicted under the statute
of resisting an illegal arrest.” State v. Thompson, No. 92CA1906, 1993 WL 472907, at *3 (Ohio
Ct. App. Nov. 9, 1993) (citing State v. Lamm, 609 N.E.2d 1286 (Ohio Ct. App. 1992)). See also
State v. Namey, No. 99-A-0003, 2000 WL 1487638, at *4 (Ohio Ct. App. Oct. 6, 2000)
(“[U]nder the plain language of the statute, a lawful arrest is an element of the crime”); State v.
Miller, 591 N.E.2d 1355, 1357 (Ohio Ct. App. 1990) (“[W]hen a charge [i]s brought under R.C.
2921.33, the arrest must be lawful in order to convict.”). Whether success on a § 1983 claim will
undermine an underlying criminal conviction for resisting arrest, therefore, hinges on the
meaning of “lawful arrest.” If a lawful arrest can coexist with excessive force or illegal entry,
and if excessive force and illegal entry are not affirmative defenses to a charge of resisting arrest,
then Aaron Hayward should be permitted to proceed on his claim.

        2.      Plaintiff Aaron Hayward’s Claim for Excessive Force

        The Ohio courts generally define lawfulness of arrest based on whether probable cause
exists to support the arrest:

        [T]he lawfulness of an arrest is based upon the existence of probable cause. The
        use of excessive force may give rise to civil remedies or criminal defenses, but it
        does not negate the legal nature of an accused’s detention for Fourth Amendment
        or concurrent statutory purposes. We agree . . . [that] “the absence of excessive or
        unnecessary force is not a material element of the crime of resisting arrest . . . .
        The permissible use of force when excessive or unnecessary force is used to
        effectuate an arrest was judicially created . . . and appears to be more of a defense
        than a material element.”

Thompson, 1993 WL 472907, at *4 (quoting Blanchester v. Newland, Clinton App. No. CA83-
07-008 (Ohio Ct. App. Sept. 17, 1984). See also Lamm, 609 N.E.2d at 1289 (explaining that the
No. 13-3132              Hayward, et al. v. Cleveland Clinic Found.              Page 10

appellee’s arrest was unlawful because it was made without probable cause and as a result, he
could not be charged with resisting arrest); State v. Johnson, 453 N.E.2d 1101, 1103 (Ohio Ct.
App. 1982) (“Since appellant’s arrest was without a reasonable basis, he could not be convicted
of resisting arrest”); City of Garfield Heights v. Simpson, 611 N.E.2d 892, 895 (Ohio Ct. App.
1992) (“In determining the lawfulness of an arrest, the elements of an underlying offense need
not be proven, but there must exist a ‘reasonable basis’ for the arrest”); Lyons v. City of Xenia,
417 F.3d 565, 573 (6th Cir. 2005) (“To the extent probable cause exists for any of these charges,
the arrest was lawful and our analysis is complete.”).

          That does not, however, end the inquiry. This Court and federal district courts have also
suggested that a lawful arrest cannot occur if the arresting officer has used excessive force. “An
arrest is not lawful, under Ohio law, if the arresting officer used excessive force.” White v. Ebie,
No. 98–3958, 191 F.3d 454, at *1 (6th Cir. Sept. 24, 1999). The Court concluded in White that
“[b]ecause White’s [excessive force] arguments attack an essential element of the resisting arrest
offense, i.e., the lawfulness of the arrest, White’s civil rights claim is barred by Heck.” Id.
Similarly, in Cummings v. City of Akron, 418 F.3d 676, 684 (6th Cir. 2005), this Court discussed
application of the Heck hypothetical in the context of a resisting arrest claim. Although the
Court was not faced with that precise scenario, it concluded in dicta that had the petitioner been
convicted of resisting arrest instead of assaulting an officer, “a subsequent suit for damages
would not be cognizable because a lawful arrest is an element of the typical offense of resisting
arrest.” Id. A federal district court in Ohio also found under Ohio’s resisting arrest statute, that a
claim of excessive force “falls squarely within the ‘favorable termination’ rule of Heck [and such
a] claim is a direct attack on the lawfulness of the underlying arrest—which [is] an essential
element of [the] resisting arrest conviction.” Jackim v. City of Brooklyn, No. 1:05 cv 1678, 2007
WL 893868, at *7 (N.D. Ohio Mar. 22, 2007). See also Goins v. City of Shively, No. 3:10–CV–
386–S, 2011 WL 2610519, at *3 (W.D. Ky. July 1, 2011) (applying White to find that “[a]n
arrest is not considered ‘lawful’ if it was made using excessive force”); Carroll v. County of
Trumbull, No. 4:05CV1854, 2006 WL 1134206, at *5 (N.D. Ohio Apr. 25, 2006) (“If the
arresting officer used excessive force in effectuating an arrest, the arrest is not lawful under Ohio
law.”).
No. 13-3132                Hayward, et al. v. Cleveland Clinic Found.                      Page 11

        However, some Ohio appellate courts have concluded that lack of excessive force is not
an element of resisting arrest. See, e.g., State v. Ellis, No. 24003, 2011 WL 2436939, at *4 (Ohio
Ct. App. June 17, 2011). In any event, as explained in Schreiber, the second way in which a
§ 1983 excessive force claim might imply the invalidity of an underlying resisting arrest
conviction is if excessive force constitutes an affirmative defense to the charge.                     Such an
affirmative defense exists in Ohio. See Lewis R. Katz et al., Baldwin’s Ohio Prac. Crim. L.
§ 6:3.20 (3d ed.) (“Where excessive or unnecessary force is used in the arrest, the defendant may
claim a defense to the charge of resisting arrest.”). In State v. Logsdon, an Ohio court of appeals
held that excessive force is an affirmative defense to a charge of resisting arrest, basing its
decision on the Ohio Revised Code’s definition of an affirmative defense. No. 13-89-10, 1990
WL 197883, at *2 (Ohio Ct. App. Dec. 4, 1990) (quoting Ohio Rev. Code § 2901.05(D)(1)(b)
(West 2014), which states that an affirmative defense is “[a] defense involving an excuse or
justification peculiarly within the knowledge of the accused, on which he can fairly be required
to adduce supporting evidence.”). The Logsdon court stated:

        With an allegation of unnecessary or excessive force in a resisting arrest charge, a
        defendant attempts to excuse or justify his actions in the classic nature of an
        affirmative defense, i.e. “confession and avoidance”. Thus, the defendant
        effectively admits his resistance, if only to show that it was necessary in order to
        protect himself from the officer’s excessive force. The defense is peculiarly
        within the knowledge of the defendant because only the defendant can adequately
        demonstrate to the trier of fact the point at which he felt he had to protect himself
        from the actions of the arresting officer.

Id.

        A number of Ohio courts have echoed this perspective, finding that excessive force is an
affirmative defense that a criminal defendant must raise in response to a charge of resisting
arrest.3 One appellate court stated clearly that “[t]he use of unnecessary or excessive force by
the arresting officer is a defense to the charge of resisting arrest.” Thompson, 1993 WL 472907,
at *4. More recently, an Ohio court held in Mansfield v. Studer that although excessive force is
not an element of resisting arrest, it is an affirmative defense to a charge of resisting arrest. Nos.


        3
           The Ohio Judicial Conference codified this holding in the Ohio Jury Instructions, under which excessive
force is an affirmative defense to a resisting arrest charge. 2 Ohio Jury Instructions § 521.33 (11) (2009).
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.              Page 12

2011–CA–93, 2011–CA–94, 2012 WL 4955278, at *15 (Ohio Ct. App. Oct. 17, 2012) (citing
2 Ohio Jury Instructions § 521.33(11) (2009), citing as authority Logsdon, 1990 WL 197883).
See also Ellis, 2011 WL 2436939, at *5. Therefore, a criminal conviction for resisting arrest in
Ohio cannot stand where a criminal defendant successfully asserts the affirmative defense of pre-
arrest excessive force; and a § 1983 claim of excessive force would necessarily imply the
invalidity of an underlying conviction for resisting arrest.

         This Court has, however, held that Heck does not bar § 1983 suits alleging post-arrest
excessive force. In Sigley v. Kuhn, for example, this Court allowed a plaintiff’s civil rights claim
to proceed, even after he pleaded “no contest” to resisting arrest under Ohio law. Nos. 98-3977,
99-3531, 205 F.3d 1341, at *1 (6th Cir. Jan. 31, 2000). In Sigley, the parties did not dispute that
a lawful arrest was made or that the arrestee unlawfully resisted. Instead, the § 1983 plaintiff
attempted “to prove that [the defendant] used unreasonable and excessive force subsequent to
[the plaintiff’s] arrest and resistance.” Id. at *4 (emphasis added). The Court held in the
plaintiff’s favor, finding that excessive force occurring after his resistance and arrest would not
necessarily imply the invalidity of the underlying conviction for resisting arrest. Similarly, in
Michaels v. City of Vermillion, 539 F.Supp.2d 975, 994 (N.D. Ohio 2008), an Ohio district court
allowed a § 1983 claim for excessive force to proceed where the plaintiff had a prior conviction
for resisting arrest. After considering Sixth Circuit case law on the issue, the court held that
“[w]hile Heck bars excessive force claims that imply the invalidity of a resisting arrest
conviction under Ohio law, the use of force that gives rise to an excessive force claim could
potentially occur after a lawful arrest was accomplished.” Id. at 992 (internal citation omitted).
See also Swiecicki v. Delgado, 463 F.3d 489, 494 (6th Cir. 2006), abrogated on other grounds by
Wallace v. Kato, 549 U.S. 384 (2007), (“A synthesis of the[] [relevant] cases indicates that we
must consider the nature and extent, if any, of [the plaintiff]’s resistance, paying particular
attention to whether [the] alleged resistance occurred prior to the alleged use of excessive
force . . . .”).

         Therefore, a court must carefully examine the facts and the temporal sequence of the
underlying offense and the alleged unconstitutional conduct to determine whether “the alleged
excessive force is used after the suspect ceases resisting arrest.” Michaels, 539 F.Supp. 2d at
No. 13-3132                  Hayward, et al. v. Cleveland Clinic Found.                         Page 13

992.4 Although recent case law in this Court and other circuits questions whether a civil rights
claim for excessive force following resistance and arrest necessarily renders an arrest unlawful
and thereby invalidates an underlying conviction for resisting arrest, Plaintiff Aaron Hayward’s
claim is not one to which this line of cases applies. In the instant case, even the facts as
presented by Plaintiffs demonstrate that Defendants’ force occurred before and during the
resistance and was only used to procure the arrest. Plaintiffs asserted in their first brief before
this Court that

         Defendant Officer Foglyano first used a taser against Aaron Hayward prior to any
         officer telling Aaron he was under arrest. Moreover, when Aaron was first tased,
         he posed no threat to the Defendants because he was in his home behind the
         security door that Defendant Howard had just shattered to assist in gaining entry
         into the Haywards’ home without consent. When Aaron was first tased, he had
         not struck any officer. Aaron was then tased two more times by a Defendant as
         he stood in his home attempting to keep the door closed, while the officers
         worked together to overcome his defensive efforts. These acts constitute
         excessive force against Aaron.

Pls.’ Br. at 30 (internal citations omitted). It is clear from this description of their encounter that
the alleged excessive force occurred in response to Plaintiff’s resistance and before an arrest was
effectuated. This Court does not pass judgment on whether Defendants’ conduct constituted
excessive force. Rather, this Court acknowledges that under current Sixth Circuit precedent, pre-
arrest excessive force is an affirmative defense to a charge of resisting arrest in Ohio, and would
therefore render invalid a conviction for resisting arrest. Because the factual circumstances in
this case indicate that Defendants’ allegedly excessive force occurred during Plaintiff’s


         4
           Plaintiff cites case law from other circuits to support an argument that “multiple distinct factual contexts
can exist over the course of a civil plaintiff’s interaction with police officers [and that] a civil plaintiff may be
lawfully arrested and convicted for resisting arrest in one context, while suffering unconstitutional excessive force in
another, separate and distinct context, without running afoul of Heck’s favorable termination requirement.” Pls.’ Br.
at 28. In each of these cases, the courts have allowed §1983 claims to proceed where the alleged excessive force and
the resistance occurred during different, distinct moments in time. See, e.g., Hooper v. San Diego, 629 F.3d 1127,
1134 (9th Cir. 2011); Dyer, 488 F.3d at 884; Martinez v. Albuquerque, 184 F.3d 1123, 1126–27 (10th Cir. 1999);
Nelson v. Jashurek, 109 F.3d 142, 145–46 (3d Cir. 1997). Although these cases present strong arguments, they are
not consistent with the law of this Court, which has only gone as far as to allow a § 1983 claim for excessive force
where the alleged force occurred after the resistance and the completion of the arrest. Plaintiffs even acknowledge
this fact in their Motion for Leave to File a Third Amended Complaint. (R. 56, Pls.’ Mot. for Leave, at 745
(“Currently, if a § 1983 plaintiff has been convicted of resisting arrest, the Sixth Circuit ‘Heck bars’ any § 1983
claim for police misconduct if the misconduct occurs before the civil plaintiff’s arrest is completed”).) And even if
this Court were to adopt some of these arguments, Plaintiff Aaron Hayward’s case does not present more than one
factual context. Instead, the facts of this case present a single factual context in which the officers’ use of force was
responsive to Plaintiff’s acts of resistance and occurred before his arrest.
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.              Page 14

resistance to the arrest, the district court properly dismissed Plaintiff Aaron Hayward’s excessive
force claim based on Heck.

       3.      Plaintiff Aaron Hayward’s Illegal Home Entry Claim

       An unconstitutional entry makes an arrest unlawful under Ohio’s resisting arrest statute.
See, e.g., Ingram v. City of Columbus, 185 F.3d 579, 587 (6th Cir. 1999) (“[I]n some
circumstances, the Fourth Amendment deems unreasonable and thus unconstitutional an officer’s
unannounced entry into a dwelling”); State v. Campana, 678 N.E.2d 626, 629–30 (Ohio Ct. App.
1996) (reversing a resisting arrest conviction because the arresting officers illegally entered the
home). In the latter case, the court concluded that an entry in violation of the knock and
announce rule without exigent circumstances constitutes an unlawful entry. Campana, 678 N.E.
2d at 629–30. Similarly, in Alley v. Bettencourt, 730 N.E.2d 1067, 1072 (Ohio Ct. App. 1999),
an Ohio court of appeals stated that “[g]enerally, officers may not lawfully make a warrantless
and nonconsensual entry into a suspect’s home to make an arrest,” implying that an arrest is
rendered unlawful, and thereby unable to support a resisting arrest conviction, when an illegal
home entry occurs.

       Defendants assert that by pleading guilty to resisting arrest under the Ohio statute,
Plaintiff Aaron Hayward admitted that his arrest was lawful and he is therefore barred from
asserting that the officers perpetrated an illegal home entry to effectuate his arrest. In response,
Plaintiff primarily cites one case in support of his claim that a court will uphold a conviction for
resisting arrest even where it was effectuated after an illegal home entry. See City of Middleburg
Heights v. Theiss, 501 N.E.2d 1226 (Ohio Ct. App. 1985). However, the primary underlying
criminal conviction in Theiss was for assault on an officer. Unlike Ohio’s resisting arrest statute,
Ohio’s assault statute does not require a lawful arrest as an element of the offense. The court
did, however, indicate that an illegal home entry renders an arrest unlawful. The court stated,
“The United States Supreme Court has repeatedly held [] that searches and seizures inside a
home without a warrant are presumptively unreasonable . . . . The Fourth Amendment gives [an
occupant] a constitutional right to refuse to consent to entry and search. The assertion of that
right cannot be a crime.” Theiss, 501 N.E.2d at 1229 (citing Camara v. Mun. Ct., 387 U.S. 523,
530–33 (1967); Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973)). Additionally, the court
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.               Page 15

recognized that “an individual can lawfully refuse to consent to a warrantless search.” Id. at
1230.

        Plaintiff asserts that in resisting arrest, he “exercised his lawful right . . . to resist and
prevent Defendants’ warrantless, non-consensual and violent entry into his home . . . . Moreover,
Aaron’s decision to use his foot and body to keep shut the wooden door that stood between his
family and the Defendants’ unconstitutional and illegal entry was legal.”           Pls.’ Br. at 34.
Through this argument, Plaintiff attempts to do exactly what Heck bars: justify his acts of
resistance and contest his conviction for resisting arrest. If Plaintiff were to succeed on an illegal
home entry claim, it would render his arrest unlawful and imply the invalidity of his underlying
guilty plea for resisting arrest. Therefore, the district court properly denied this claim as barred
under Heck.

        4.     Powers and the Favorable Termination Requirement

        Plaintiff Aaron Hayward asserts that regardless of this Court’s decisions on the preceding
arguments, Heck’s favorable termination requirement—that the conviction or sentence has been
reversed, expunged, or invalidated—does not apply to his case. He cites this Court’s decision in
Powers v. Hamilton Cnty. Pub. Defender Comm’n for the proposition that “the favorable-
termination requirement does not preclude § 1983 lawsuits by persons who could not have their
convictions or sentences impugned through habeas review.” 501 F.3d 592, 600 (6th Cir. 2007)
(citing Heck, 512 U.S. at 500 (Souter, J., concurring)). This Court held in Powers that “a § 1983
plaintiff is entitled to a Heck exception if the plaintiff was precluded ‘as a matter of law’ from
seeking habeas redress, but not entitled to such an exception if the plaintiff could have sought
and obtained habeas review while still in prison but failed to do so.” Id. at 601. In S.E. v. Grant
Cnty. Bd. of Educ., 544 F.3d 633, 638–39 (6th Cir. 2008), this Court applied Powers to hold that
Heck’s favorable termination requirement does not apply where, due to the length of a sentence,
a petitioner was unable to assert a habeas claim. Powers logically extends to situations in which
petitioners elect to participate in pretrial diversion programs to avoid trial and possible jail time.
For example, in one Ohio case, Powers applied such that Heck did not bar a petitioner’s
constitutional claims after he was merely fined for his criminal conduct and was never eligible
for habeas corpus relief. Embassy Realty Invs., LLC v. City of Cleveland, 877 F.Supp.2d 564,
No. 13-3132                 Hayward, et al. v. Cleveland Clinic Found.                         Page 16

575 (N.D. Ohio 2012) (citing Powers, 501 F.3d at 603). In the instant case, Plaintiff Aaron
Hayward pleaded guilty to resisting arrest and paid a fine rather than spending an extensive
amount of time in jail. He was ineligible for habeas review because he did not serve a sentence
long enough to assert a claim challenging his conviction. Therefore, he claims that Powers
means Heck is inapplicable to his case.

         Defendants respond by arguing that Plaintiff waived the argument after failing to assert it
in the district court or, in the alternative, because Ohio collateral estoppel law bars such an
argument.

         The Supreme Court has repeatedly held it will not consider an argument that a petitioner
failed to assert in the courts below. See, e.g., Grupo Mexicano de Desarrollo S.A. v. Alliance
Bond Fund, Inc., 527 U.S. 308, 318 n.3 (1999) (“Because this argument was neither raised nor
considered below, we decline to consider it”); Roberts v. Galen of Va., Inc., 525 U.S. 249, 253–
54 (1999) (“Although respondent presents two alternative grounds for affirmance of the decision
below, we decline to address these claims at this stage in the litigation . . . [because] these claims
do not appear to have been sufficiently developed below for us to assess them . . . .”); Dep’t of
Revenue v. Kurth Ranch, 511 U.S. 767, 772 n.9 (1994) (“The issue was not raised below, so we
do not address it.”). Similarly, this Court explained in Scottsdale Ins. Co. v. Flowers “that an
argument not raised before the district court is waived on appeal to this Court.” 513 F.3d 546,
552 (6th Cir. 2008).5 In United States v. Flint, for example, this Court was unwilling to address
a double jeopardy claim that was crucial to a criminal defendant’s case because it was not raised
or argued in the district court. 394 F. App’x 273, 279 (6th Cir. 2010).

         Plaintiffs had ample opportunity to brief this issue in their responses to Defendants’
motions, yet they failed to do so. This Court deviates from the general waiver rule explained


         5
           See also El Bey v. Roop, 530 F.3d 407, 412 (6th Cir. 2008) (expressing an unwillingness to apply the
waiver exception where a pro se plaintiff failed to raise an important issue related to his Miranda rights in the lower
court); Cochran v. United Parcel Serv., Inc. 137 F. App’x 768, 772 (6th Cir. 2005) (holding that plaintiff waived an
argument regarding the pretext of her termination after failing to provide any exceptional circumstances that would
explain her waiver and where it would not result in a miscarriage of justice to decline consideration of the issue);
United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 758 (6th Cir. 1999) (“Because the issue was not raised
in the district court below, Appellants have waived their right to argue the point on appeal”); White v. Anchor Motor
Freight, Inc., 899 F.2d 555, 559 (6th Cir. 1990) (“This court will not decide issues or claims not litigated before the
district court.”).
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.              Page 17

above only when it “would produce a plain miscarriage of justice” or when there are exceptional
circumstances that militate against finding a waiver. Scottsdale Ins. Co., 513 F.3d at 552
(internal quotation marks omitted). The following factors aid this Court in determining whether
to consider a waived claim:

        1) whether the issue newly raised on appeal is a question of law, or whether it
        requires or necessitates a determination of facts; 2) whether the proper resolution
        of the new issue is clear and beyond doubt; 3) whether failure to take up the issue
        for the first time on appeal will result in a miscarriage of justice or a denial of
        substantial justice; and 4) the parties’ right under our judicial system to have the
        issues in their suit considered by both a district judge and an appellate court.

Friendly Farms v. Reliance Ins. Co., 79 F.3d 541, 545 (6th Cir. 1996). This Court will exercise
its discretion “to prevent manifest injustice and to promote procedural efficiency” where “the
proper resolution is beyond any doubt or where injustice . . . might otherwise result.” Taft
Broad. Co. v. United States, 929 F.2d 240, 244 (6th Cir. 1991) (internal quotation marks
omitted). However, issues not raised in the trial court may be addressed on appeal for the first
time only if the issue “is presented with sufficient clarity and completeness and its resolution will
materially advance the progress of [] already protracted litigation.” Pinney Dock & Transp. Co.
v. Penn. Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988).

        This Court “ha[s] rarely exercised such discretion,” Scottsdale Ins. Co., 513 F.3d at 552,
and these factors, as applied to the instant case, do not militate in favor of allowing this Court to
exercise its discretion to entertain Plaintiff’s Powers argument. Although application of Powers
in this case is a question of law, it is not an issue for which resolution is clear beyond doubt, and
a district court should have had the opportunity to consider the facts in this case to determine
whether Powers applies. Plaintiff has failed to demonstrate any exceptional circumstances that
prevented him from asserting this argument before the district court. Plaintiff is not a pro se
litigant.   He was represented by counsel before the district court, and he continues to be
represented by counsel on appeal. He had every opportunity to raise his Powers argument in any
one of his three amended complaints or other filings before the district court, yet he failed to do
so. As this Court has found waiver in far more sympathetic cases and Plaintiff fails to assert that
No. 13-3132               Hayward, et al. v. Cleveland Clinic Found.                    Page 18

he is entitled to application of an exception, this Court declines consideration of Plaintiff’s
Powers argument.6

C.      Plaintiffs Annie and Essex Hayward’s Illegal Home Entry Claim

        The district court found that Heck also barred Plaintiffs Annie and Essex Hayward’s
§ 1983 illegal home entry claim. The court, in ordering Plaintiffs to file a second amended
complaint, stated as follows:

        Here, Plaintiff Aaron Hayward pled guilty in state court to resisting arrest in
        violation of O.R.C. § 2921.33. Under Heck, Plaintiffs’ claims of excessive force
        and unlawful entry to effectuate Aaron’s arrest—including the claims of both
        Aaron and his parents, Essex and Annie Hayward[]—are barred to the extent that
        they relate to any use of force by the police officers before Aaron was arrested
        and stopped resisting arrest . . . .
        The amended complaint must specifically allege the application of force after
        Aaron was arrested and subdued . . . .

(R. 29, 4/3/2012 Order, at 462.) The district court made this determination without citing any
authority that extends Heck to the § 1983 claims of third parties. Heck does not apply to third-
party § 1983 claims. In Heck, the Supreme Court addressed a situation where “a state prisoner
seeks damages in a § 1983 suit” and a “district court [would have to] consider whether a
judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence.” 512 U.S. at 487 (emphasis added). The Court was concerned that “§ 1983 and the
federal habeas corpus statute, 28 U.S.C. § 2254, were ‘on a collision course.’” Dyer, 488 F.3d at
880 (quoting Heck, 512 U.S. at 492 (Souter, J., concurring)). Because such a concern does not
extend to the civil rights claims of third parties, the district court erred in applying Heck to bar
Plaintiffs Annie and Essex Hayward’s § 1983 claim.

        On appeal, Defendants concede that Heck does not apply to third-party § 1983 claims.7
Rather than agreeing with the district court’s application of Heck, Defendants assert that
Plaintiffs Annie and Essex Hayward abandoned their claims regarding the officers’ pre-arrest
        6
         Because this Court resolves the Powers issue on waiver grounds, it need not consider Defendants’
argument regarding collateral estoppel.
        7
          Defendants conceded during oral argument that Heck does not bar Plaintiffs Annie and Essex Hayward’s
§ 1983 claim.
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.            Page 19

conduct. They cite case law from various other circuits to support their claim that the elder
Haywards abandoned their § 1983 claim for illegal entry when they filed the second amended
complaint from which they removed all of their claims for pre-arrest conduct. Plaintiffs argue in
response that because their claims were dismissed on the merits, they were not required to
reassert those claims in subsequent amended complaints.

       In granting in part Defendants’ motions for judgment on the merits, the district court
stated in its December 28, 2012 Amended Order that “[b]ecause the Court has already dismissed
the Haywards’ Fourth Amendment unreasonable entry claim on the merits, the Court will
construe the proposed Third Amended Complaint as bringing only Aaron Hayward’s excessive
force claim against Defendants based on the arresting officers’ pre-arrest conduct.” (R. 58,
12/28/2012 Am. Order, at 778–79 (emphasis added).) The district court also explained that the
proposed third amended complaint sought to “re-assert[] the Fourth Amendment unreasonable
entry claim of Aaron and his parents . . . which latter claim the Court has already dismissed on
the merits.” (Id. at 778 (emphasis added).) Annie and Essex Hayward’s claim for illegal home
entry, therefore, was dismissed on the merits by the district court. Plaintiffs do not seek to
resurrect a claim that has already been abandoned. Instead, they attempt to appeal the district
court’s dismissal of their claim on the merits.

       Generally, amended pleadings supersede original pleadings. 6 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1476 (3d ed. 2010) [hereinafter Wright &
Miller] (“Once an amended pleading is interposed, the original pleading no longer performs any
function in the case and any subsequent motion made by an opposing party should be directed at
the amended pleading.”). Defendants cite cases that stand for the proposition that a plaintiff may
not rely on claims asserted in a former complaint if a subsequent, voluntarily amended complaint
does not include those claims. In Clark v. Johnston, 413 F. App’x 804, 811–12 (6th Cir. 2011),
this Court applied that rule where the petitioner voluntarily amended his complaint to include
additional defendants. The Court explained that because the petitioner “did not clearly indicate
that he intended his amended pleading to supplement, rather than supersede, his original
pleading,” it was proper to consider only the amended complaint. Id. at 812. See also Drake v.
City of Detroit, 266 F. App’x 444, 448 (6th Cir. 2008) (“Although Drake pleaded a claim for
No. 13-3132                  Hayward, et al. v. Cleveland Clinic Found.                         Page 20

abuse of process in his original complaint filed in state court, that complaint is a nullity, because
an amended complaint supercedes all prior complaints”); Tolen v. Ashcroft, 377 F.3d 879, 882 n.
2 (8th Cir. 2004) (finding waiver where the petitioner voluntarily dismissed claims from his first
amended complaint and failed to reassert them in the next complaint).

         Plaintiffs did not voluntarily amend their complaints.                   As the district court’s order
indicates, they amended their complaints in response to the district court’s threatened dismissal
of their former complaints. The waiver rule should not be applied to the instant case. Although
this Court has not clearly established a rule on this particular issue, other circuits’ case law
provides persuasive authority.            For example, although the Ninth Circuit formerly required
repleading of an argument that has already been dismissed with prejudice by the district court, it
has since changed course, reflecting the general trend in other circuits. See Lacey v. Maricopa
County, 693 F.3d 896, 927 (9th Cir. 2012) (en banc) (internal quotation marks omitted)
(“Although the general rule is that an amended complaint supercedes the original complaint and
renders it without legal effect, most courts have concluded that the plaintiff does not forfeit the
right to challenge the dismissal on appeal simply by filing an amended complaint that does not
re-allege the dismissed claim.”). The Second Circuit, too, does not require the “repleading of a
claim or defense that explicitly has been denied.” In re Crysen/Montenay Energy Co., 226 F.3d
160, 162 (2d Cir. 2000). Currently, “[m]ost circuits refuse to require a plaintiff to replead
dismissed claims in order to preserve the right to appeal the dismissal,” particularly because an
attempt to reallege the claim would likely be futile. Young v. City of Mount Ranier, 238 F.3d
567, 572 (4th Cir. 2001).8

         “It . . . is not logical to deny a party the right to appeal simply because the party decides
to abide by the court’s order and amend the pleading rather than allowing an adverse judgment to
be entered and taking an immediate appeal.” Wright & Miller § 1476. In the instant case, where


         8
          See also In re Atlas Van Lines, Inc., 209 F.3d 1064, 1067 (8th Cir. 2000) (“This court . . . does recognize
an exception to the amended complaint rule . . . . [in circumstances where] a district court orders a party to amend its
complaint or when the decision to amend is otherwise involuntary . . . .”); Varnes v. Local 91 Glass Bottle Blowers
Ass’n of U.S. & Canada, 674 F.2d 1365, 1370 (11th Cir. 1982) (“Varnes was not barred, by consenting to the
dismissal and filing the amended complaint, from raising on appeal the correctness of the dismissal order”); Wilson
v. First Houston Inv. Corp., 566 F.2d 1235, 1238 (5th Cir. 1978), judgment vacated on other grounds by First
Houston Inv. Corp. v. Wilson, 444 U.S. 959 (1979) (“[W]e hold that plaintiff, by filing an amended complaint after a
dismissal with leave to amend, was not barred from raising on appeal the correctness of the dismissal order.”).
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.              Page 21

the district court acknowledged that it dismissed Plaintiffs’ pre-arrest claims on the merits, it
would be illogical to deny them the right to appeal those claims simply because they failed to
include them in subsequent pleadings. Therefore, Plaintiffs Annie and Essex Hayward did not
abandon their § 1983 claim for illegal entry.

       Plaintiffs Annie and Essex Hayward have alleged enough factual matter to make
plausible a claim for illegal entry. See Iqbal, 556 U.S. at 678. Defendants assert that the officers
were justified in entering Plaintiffs’ home because they were in hot pursuit of Plaintiff Aaron
Hayward or faced exigent circumstances. However, Plaintiffs cite sufficient facts and case law
to support their argument that Defendants entered their home without an arrest warrant, without
exigent circumstances or hot pursuit.

       In O’Brien v. City of Grand Rapids, 23 F.3d 990, 998 (6th Cir. 1994), this Court
explained that “[i]n a civil damage suit, whether exigent circumstances existed to excuse a
warrantless arrest is a question for the jury provided that, given the evidence on the matter, there
is room for a difference of opinion.” In the instant case, there is room for a difference of opinion
based on the facts as alleged in the complaint. Plaintiffs assert that the officer who followed
Aaron to his residence did not first approach the home to effectuate the arrest. Instead, he
radioed for assistance and waited approximately ten to fifteen minutes before additional officers
arrived at the scene. There is no evidence in the record indicating that Aaron posed a physical
threat to himself or any individuals inside the home, and there is no indication that evidence of
illegal conduct would be uncovered inside the home such that exigent circumstances required
immediate entry. At this stage in the litigation, where this Court must “accept all of the
complaint’s factual allegations as true,” Plaintiffs Annie and Essex Hayward have alleged
sufficient facts to prevail over Defendants’ motion for judgment on the pleadings. Aho, 219 F.
App’x at 422. Therefore, this Court remands Annie and Essex Hayward’s illegal home entry
claim for further consideration by the district court.
No. 13-3132                 Hayward, et al. v. Cleveland Clinic Found.                         Page 22

D.       Plaintiffs Annie and Essex Haywards’ State Law Claims

         1.       Intentional Infliction of Emotional Distress

         In addition to their federal civil rights claims, Plaintiffs Annie and Essex Hayward allege
that Defendants committed intentional infliction of emotional distress on the evening in
question.9 Under Ohio law, to prevail on a claim for intentional infliction of emotional distress,
a plaintiff must establish the following four elements:

         1) that the actor either intended to cause emotional distress or knew or should
         have known that actions taken would result in serious emotional distress to the
         plaintiff; 2) that the actor’s conduct was so extreme and outrageous as to go
         beyond all possible bounds of decency and was such that it can be considered as
         utterly intolerable in a civilized community; 3) that the actor’s actions were the
         proximate cause of plaintiff’s psychic injury; and 4) that the mental anguish
         suffered by plaintiff is serious and of a nature that no reasonable man could be
         expected to endure it.

Pyle v. Pyle, 463 N.E.2d 98, 103 (Ohio Ct. App. 1983) (internal citations and quotation marks
omitted).

         In Ohio, an emphasis is placed on the seriousness of the emotional distress. Yeager v.
Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of America, 453 N.E.2d 666,
671 (Ohio 1983), abrogated on other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio
2007). “The key to liability . . . is whether the defendant’s conduct in the instant matter rises to a
level of outrageousness necessary to permit recovery.” Baab v. AMR Servs. Corp., 811 F.Supp.
1246, 1269 (N.D. Ohio 1993). Ohio takes direction from the Restatement Second to define
“extreme and outrageous conduct”:

         It has not been enough that the defendant has acted with an intent which is
         tortious or even criminal, or that he has intended to inflict emotional distress, or
         even that his conduct has been characterized by “malice,” or a degree of
         aggravation which would entitle the plaintiff to punitive damages for another tort.

         9
           It appears that Plaintiffs also attempted to allege a claim of negligent infliction of emotional distress in
their various complaints. However, as Defendants point out, Plaintiffs failed to complete this argument in their
briefs before this Court. “[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.
1997) (internal citation and quotation marks omitted). As a result, this Court does not address Plaintiffs’ negligent
infliction of emotional distress claim.
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.              Page 23

       Liability has been found only where the conduct has been so outrageous in
       character, and so extreme in degree, as to go beyond all possible bounds of
       decency, and to be regarded as atrocious, and utterly intolerable in a civilized
       community. Generally, the case is one in which the recitation of the facts to an
       average member of the community would arouse his resentment against the actor,
       and lead him to exclaim, “Outrageous!”

Restatement (Second) of Torts § 46 cmt. d (1965). This is a narrow definition: “[T]o say that
Ohio courts narrowly define ‘extreme and outrageous conduct’ would be something of an
understatement.” Baab, 811 F.Supp. at 1269 (citing Anthony v. TRW, Inc., 726 F.Supp. 175, 181
(N.D. Ohio 1989)). In fact, “mere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities” cannot sustain a claim of intentional infliction of emotional distress. Yeager,
453 N.E.2d at 671 (internal quotation marks omitted). To make out a prima facie case, a
petitioner must be able to demonstrate that he has suffered emotional distress that is “both severe
and debilitating.” Paugh v. Hanks, 451 N.E.2d 759, 765 (Ohio 1983).

       At this stage in the proceedings, where Plaintiffs Annie and Essex Hayward need only
plead “sufficient factual matter to render the legal claim plausible,” we believe Annie and Essex
Hayward are entitled to proceed on their intentional infliction of emotional distress claim. Fritz,
592 F.3d at 722 (internal quotation marks omitted). As alleged, around 4:00 a.m., without
announcing a reason for their disturbance, six armed, uniformed officers pounded on Plaintiffs’
front door, repeatedly demanding that they “open the fucking door.” (R. 30, Second Am.
Compl., at 477.) Although Plaintiffs refused entry, the officers used the butts of their shotguns to
break down two locked doors to enter Plaintiffs’ home without a warrant or exigent
circumstances. They blindly deployed tasers into Plaintiffs’ occupied home while shouting
racial epithets, shocked and beat Aaron Hayward while calling him a “black nigger,” and then
threatened an innocent, elderly couple with physical violence—all because of a few minor traffic
violations. Defendants’ actions resulted in Plaintiffs’ emotional distress and Essex Hayward’s
hospitalization. These are neither “mere insults” nor “petty oppressions.” See Knox v. Hetrick,
No. 91102, 2009 WL 792357, at *9 (Ohio Ct. App. Mar. 26, 2009). To the contrary, this was a
violent, traumatic invasion, effected through an alarming and unnecessary show of force.

       Plaintiffs Annie and Essex Hayward have pleaded sufficient facts to make plausible a
claim that Defendants’ conduct “was so extreme and outrageous as to go beyond all possible
No. 13-3132              Hayward, et al. v. Cleveland Clinic Found.               Page 24

bounds of decency and was such that it can be considered as utterly intolerable in a civilized
community.” Pyle, 463 N.E.2d at 103 (internal quotation marks omitted). Therefore, we remand
to allow Plaintiffs their day in court on this claim.

       2.      Assault

       Plaintiffs Annie and Essex Hayward also appeal the district court’s dismissal of their
assault claim. Under Ohio law, assault is defined as “the willful threat or attempt to harm or
touch another offensively, which threat or attempt reasonably places the other in fear of such
contact.” Smith v. John Deere Co., 614 N.E.2d 1148, 1154 (Ohio Ct. App. 1993). “The threat or
attempt must be coupled with a definitive act by one who has the apparent ability to do the harm
or to commit the offensive touching . . . . [And] the actor [must have known] with substantial
certainty that his or her act would bring about harmful or offensive contact.” Id.

       Plaintiffs Annie and Essex Hayward allege that one of the officers threatened to punch
them in the mouth if they failed to produce identification. They claim that this threat, in and of
itself, was sufficient to constitute the definitive act required for success on an assault claim.
Additionally, they assert that in the moments preceding the threat, the same officer violently
invaded their home against their consent and tased their son for more than thirty seconds,
rendering him incapacitated and in need of medical treatment.

       Defendants counter, however, that although threats were made on the night in question,
Plaintiffs fail to allege a sufficient definitive act accompanying these threats, as is required under
Ohio law. Defendants cite Coyle v. Stebelton, No. 00CA74, 2001 WL 704462, at *3 (Ohio Ct.
App. June 15, 2001), to support their argument. In Coyle, an Ohio court of appeals held in favor
of an appellee who “did not make any physical gesture toward appellant indicating an offensive
touching was imminent.” Id. Without such a gesture that could constitute a definitive act toward
the appellant, he was unable to prevail in proving the elements of assault. Id.

       Even reading the facts as alleged in the light most favorable to Plaintiffs, which this
Court must do when reviewing a district court’s grant of a motion for judgment on the pleadings,
Plaintiffs have failed to satisfy all requirements for assault under Ohio law. Although Plaintiffs
were threatened by the officers, who had the apparent ability to do harm or commit an offensive
No. 13-3132             Hayward, et al. v. Cleveland Clinic Found.                Page 25

touching, Plaintiffs have not alleged facts to demonstrate the occurrence of a definitive act
accompanying the threats. The most they allege as definitive acts is the violent entry into their
home and the tasing of their son. However, Ohio tort law requires that the definitive act be
perpetrated against the person alleging the assault. See, e.g., Brooks v. Lady Foot Locker, No.
22297, 2005 WL 1163018, at *3 (Ohio Ct. App. May 18, 2005); Coyle, 2001 WL 704462, at *3.
Because Plaintiffs Annie and Essex Hayward have failed to demonstrate the perpetration of a
definitive act against their persons, they cannot allege sufficient facts to support an assault claim.
Therefore, this Court affirms the district court’s dismissal of Plaintiffs’ assault claim.

                                                 III.

                                          CONCLUSION

       Because the district court erred in granting Defendants’ motion to dismiss Annie and
Essex Hayward’s § 1983 claim for illegal home entry and their state law intentional infliction of
emotional distress claim, this Court REVERSES and REMANDS for further proceedings on
those issues. As to Plaintiffs’ other claims, including Aaron Hayward’s § 1983 claims and Annie
and Essex Hayward’s state law assault claim, the district court properly granted Defendants’
motions for judgment on the pleadings; therefore, this Court AFFIRMS the district court’s
judgment as to those claims.
