           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                      File Name: 14a0906n.06

                                           No. 13-4397

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              Dec 08, 2014
PATRICIA BOLDEN, et al.,                                  )
                                                                          DEBORAH S. HUNT, Clerk
                                                          )
       Plaintiffs-Appellants,                             )
                                                          )        ON APPEAL FROM THE
               v.                                         )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE NORTHERN
CITY OF EUCLID, et al.,                                   )        DISTRICT OF OHIO
                                                          )
       Defendants-Appellees.                              )
                                                          )
                                                          )
                                                          )

BEFORE: MOORE and COOK, Circuit Judges; and STEEH, District Judge.*

       STEEH, District Judge. Defendant-Appellee Police Officer Paul Doyle (Officer Doyle)

arrested Plaintiffs-Appellants Samir Bolden (Bolden) and Brandon Martin (Martin) for trespassing

on his property and looking into his security cameras. For their side, Bolden and Martin say they

were walking on the sidewalk in their neighborhood and never trespassed on Officer Doyle’s

property. Normally, such a conflict in the evidence would preclude a finding of qualified immunity

and the differences would be left to the factfinder to assess whether or not probable cause existed

to search and seize Plaintiffs and arrest them. However, in this case, the criminal trespassing charge

was admitted by Martin when he entered into a diversion program, and proved against Bolden at




*
 The Honorable George Caram Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 13-4397, Bolden et al. v. City of Euclid et al.



trial in juvenile court. For these reasons, as explained below, we AFFIRM the district court’s

opinion and order granting summary judgment in favor of Defendants.

                                        I. BACKGROUND

       The factual scenario that follows is viewed in a light most favorable to Plaintiffs. Robertson

v. Lucas, 753 F.3d 606, 614 (6th Cir. 2014). Plaintiffs were walking in their neighborhood in the

City of Euclid. Officer Doyle lives in the same neighborhood. While Plaintiffs were walking past

Officer Doyle’s house, Officer Doyle drove up to them, exited his vehicle, and accused them of

trespassing on his property and looking into his security cameras. Plaintiffs maintained that they

were walking on the sidewalk.

       While questioning Plaintiffs, Officer Doyle pushed Martin into Bolden. Officer Doyle

ordered Plaintiffs to “stop” and to “get on the ground.” Bolden complied. But Martin started to

walk away, pulling out his cell phone so that he could apprise his mother of the situation. This led

Officer Doyle to “smack” Martin’s phone out of his hand and throw the headphones Martin was

wearing around his neck to the ground, breaking them. Officer Doyle then threw Martin to the

ground and forcibly held him down, one hand securing Martin’s arms behind his back, the other on

Martin’s neck holding his face down, and Officer Doyle’s knee on Martin’s face. While Martin was

being held to the ground, Officer Doyle placed him in handcuffs. Officer Doyle then told Bolden

to stand up and placed Bolden in handcuffs as well.

       Backup was called and arrived to transport Plaintiffs to the police station. After being

transported to the police station without incident, Plaintiffs were placed in the “roll call” room and

further questioned by Officer Doyle and two other police officers. Bolden filled out a police report

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No. 13-4397, Bolden et al. v. City of Euclid et al.



at Officer Doyle’s request, but Martin refused. Although Bolden originally wrote that he and Martin

were walking past Officer Doyle’s house, and past the driveway, Officer Doyle made him scribble

it out and write that they were walking by Officer Doyle’s house and on or in the driveway.

       Plaintiffs were both charged in one-count with a misdemeanor Criminal Trespass, Ohio Rev.

Code § 2911.21(A)(1), in the Cuyahoga County Court of Common Pleas, Juvenile Division.

       Bolden elected to proceed to a bench trial before a magistrate judge. After trial, where

Bolden was represented by counsel, the juvenile court entered an order finding that probable cause

existed for filing the complaint. However, the court dismissed the charges under Ohio Juvenile Rule

29(F)(2)(d). Ohio Juvenile Rule 29(F)(2)(d) allows a court to “[d]ismiss the complaint if dismissal

is in the best interest of the child and the community,” even though “the allegations of the complaint,

indictment, or information are admitted or proven.”

       Martin did not go to trial. He entered into Euclid’s Juvenile Diversion Program, a program

“comprised of an alliance between the City of Euclid, Euclid Police Department, Euclid Schools,

Cuyahoga County Juvenile Court, and various organizations/businesses to offer families a positive

alternative to traditional Juvenile Court involvement.” Both Martin and his mother confirmed at

their depositions that they understood diversion to be an admission of the charges against Martin.

They also testified that the magistrate judge who allowed Martin to participate in the diversion

program did so only after Martin admitted, on the record, to trespassing.

       Subsequently, Plaintiffs filed the instant twelve-count complaint in federal court alleging

multiple claims against Officer Doyle under 42 U.S.C. § 1983 and state law. Plaintiffs also alleged

constitutional violations against Officer Trevor Studley (Officer Studley), who was one of the

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No. 13-4397, Bolden et al. v. City of Euclid et al.



officers called to the scene to assist Officer Doyle, and Euclid Police Chief Thomas Brickman (Chief

Brickman), as well as a municipality claim against the City of Euclid. Through discovery, Plaintiffs

learned of multiple complaints lodged against Officer Doyle since he first became a police officer

in the City of Euclid, including complaints that Officer Doyle used excessive force against juveniles.

       In a written opinion and order, the district court granted summary judgment in favor of

Defendants and dismissed the case. Bolden v. City of Euclid, No. 1:12 CV 1666, 2013 WL 5935614

(N.D. Ohio Nov. 1, 2013). Plaintiffs appeal.

                                  II. STANDARD OF REVIEW

       A district court’s grant of summary judgment is reviewed de novo. Eastham v. Chesapeake

Appalachia, L.L.C., 754 F.3d 356, 360 (6th Cir. 2014). Summary judgment is appropriate where

“there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “In considering a motion for summary judgment, this court

construes all reasonable inferences in favor of the nonmoving party.” Lucas, 753 F.3d at 614.

                                        III. DISCUSSION

       Although Plaintiffs appeal from the entirety of the district court’s opinion and order, they

waived multiple issues by failing to address them in their appellate briefs. We begin by addressing

these waived claims. Next, we address the claims against the individual police officers, followed

by a discussion of the municipal liability claim against the City of Euclid.




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No. 13-4397, Bolden et al. v. City of Euclid et al.


A. Plaintiffs’ Waived Claims

       In order to preserve appellate review of an issue, a party is required to address the issue in

the appellate briefing. Dye v. Office of the Racing Comm’n, 702 F.3d 286, 304 (6th Cir. 2012)

(citation omitted); see also Middlebrook v. City of Bartlett, 103 F. App’x 560, 562 (6th Cir. 2004)

(“The failure to present an argument in an appellate brief waives appellate review.” (citation

omitted)). This requires developed argument; a party is required to do more than advert to an issue

in a perfunctory manner. United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999).

       By failing to make any developed argument in their briefing, Plaintiffs waived appellate

review of the district court’s grant of summary judgment against them as it relates to:

       1) All claims against Officer Studley;
       2) All claims against Chief Brickman and Officer Doyle in their official capacities;
       3) Count one (Equal Protection);
       4) Count three (Substantive Due Process);
       5) Count four (Liberty, Safety and Privacy);
       6) Count seven (False Imprisonment);
       7) Count eight (Intentional Infliction of Emotional Distress);
       8) Count nine (Malicious Criminal Prosecution);
       9) Count ten (Assault); and
       10) Count twelve (Ohio Public Records Act).

B. Claims Against Chief Brickman and Officer Doyle

       1. Chief Brickman

       Plaintiffs argue that Chief Brickman should be held liable because he allowed Officer Doyle

to continue to interact with juveniles despite multiple past complaints accusing Officer Doyle of

using excessive force. The district court correctly recognized that the record is devoid of any direct

involvement by Chief Brickman in the alleged constitutional violations asserted by Plaintiffs.

Therefore, Chief Brickman is not liable in his individual capacity. See Harvey v. Campbell Cnty.,

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No. 13-4397, Bolden et al. v. City of Euclid et al.


453 F. App’x 557, 564 (6th Cir. 2011); Shehee v. Lutrell, 199 F.3d 295, 300 (6th Cir. 1999). The

claim against Chief Brickman is properly addressed as a deliberate indifference claim against the

City of Euclid, not against Chief Brickman personally. See Harvey, 453 F. App’x at 564.

       2. Officer Doyle

       The unwaived claims against Officer Doyle are: (1) Count Two (Unlawful and Unreasonable

Searches and Seizures); Count Five (Excessive Force); and Count Six (False Arrest). We address

each in turn.

                a. Count Two – Unlawful and Unreasonable Searches and Seizures

       In count two, Plaintiffs claim that Officer Doyle violated their rights to be free from

unreasonable searches and seizures when he stopped and detained them for trespassing. In order to

prevail on this claim, Plaintiffs must show that Officer Doyle lacked probable cause to search and

detain them. See United States v. Mendenhall, 446 U.S. 544, 550–51 (1980). The district court

correctly concluded that Plaintiffs are collaterally estopped from challenging the existence of

probable cause.

       Plaintiffs are estopped from challenging probable cause because Martin admitted to criminal

trespass, and because the state juvenile court found that Bolden committed a criminal trespass.

Federal courts apply state law to determine whether collateral estoppel applies. Daubenmire v. City

of Columbus, 507 F.3d 383, 389 (6th Cir. 2007). Under Ohio law, collateral estoppel applies

“‘when the fact or issue (1) was actually and directly litigated in the prior action, (2) was passed

upon and determined by a court of competent jurisdiction, and (3) when the party against whom

collateral estoppel is asserted was a party in privity with a party to the prior action.’ ” Id. (quoting


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No. 13-4397, Bolden et al. v. City of Euclid et al.


Thompson v. Wing, 70 Ohio St. 3d 176, 637 N.E.2d 917, 923 (1994)). Where a plaintiff has been

convicted criminally, collateral estoppel bars a subsequent challenge to probable cause related to

his arrest in a civil case, Contreras v. Simone, 112 Ohio App. 3d 246, 678 N.E.2d 593, 595 (1996),

and the same bar applies if the plaintiff pleaded guilty or no-contest to a criminal charge in state

court, Daubenmire, 507 F.3d at 390.

       As to Bolden, the judgment entered by the Cuyahoga County Court of Common Pleas,

Juvenile Division, precludes him from challenging the existence of probable cause in this case.

After Bolden elected to proceed to a bench trial on the charge of misdemeanor Criminal Trespass,

Ohio Rev. Code § 2911.21(A)(1), he was found by the magistrate judge to have committed the

trespass. The magistrate judge’s order was adopted by the court, and the court in its judgment

explicitly stated that there was probable cause for filing the complaint against Bolden. While the

complaint was ultimately dismissed, it was dismissed under Ohio Juvenile Rule 29(F)(2)(d) which

requires “the allegations of the complaint, indictment, or information” to be “admitted or proven.”

Bolden’s argument that he was not “convicted,” therefore, is without merit.

       Bolden argues that collateral estoppel should not apply because his case was ultimately

dismissed, and he cannot be required to appeal a favorable decision. At oral argument, Bolden’s

counsel argued that an appeal would have required paying more for an attorney, transcript fees, etc.,

when the outcome was ultimately positive for Bolden. Although it may not have been wise for

Bolden to appeal a judgment when the ultimate disposition was dismissal and a finding that he was

not delinquent, Bolden was represented by counsel who should have known and advised Bolden that

an appeal would preserve a future federal civil rights lawsuit. Bolden had the opportunity to appeal


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No. 13-4397, Bolden et al. v. City of Euclid et al.


the unfavorable finding of criminal trespass. The final judgment informed Bolden of this right:

“[p]ursuant to Rule 34(J) of the Rules of Juvenile Procedure and Rules 3 and 4 of the Ohio Rules

of Appellate Procedure, an appeal of the order herein may be taken in the Eighth District Court of

Appeals . . . .” We reject Bolden’s contrary arguments.

       As to Martin, his admission in juvenile court that he trespassed on Officer Doyle’s property

establishes probable cause. As explained, both Martin and his mother testified that they understood

the diversion program to be an admission of guilt. In addition, they both testified that Martin was

required to admit to trespassing before the juvenile court judge allowed him to participate in the

diversion program. Martin’s admission to trespassing is dispositive of his claim.

       Even if collateral estoppel does not bar Martin’s claim, judicial estoppel does. Teledyne

Indus., Inc. v. N.L.R.B., 911 F.2d 1214, 1217–18 (6th Cir. 1990) (explaining that judicial estoppel

bars a party from taking a contradictory position accepted by a prior court). The juvenile court

accepted Martin’s position that he was trespassing on Officer Doyle’s property in order to allow him

to participate in the diversion program. He cannot now take a contradictory position to benefit in

a civil case. Ultimately, there is no dispute that Martin admitted to the charge in a prior legal

proceeding, thereby precluding him from challenging probable cause in this case.




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No. 13-4397, Bolden et al. v. City of Euclid et al.


               b. Count Five – Excessive Force

       Count five alleges excessive force under federal law.1 Plaintiffs argue that Officer Doyle’s

use of force in arresting them was unreasonable and excessive. We have explained that “[a]n officer

making an investigative stop or arrest has ‘the right to use some degree of physical coercion or threat

thereof to effect it.’ ” Miller v. Sanilac Cnty., 606 F.3d 240, 251 (6th Cir. 2010) (citation omitted).

“Courts must determine whether a particular use of force is reasonable based on ‘the perspective of

a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ ” Smoak v. Hall,

460 F.3d 768, 783 (6th Cir. 2006) (citation omitted). The central inquiry is whether, “under the

totality of the circumstances, the officer’s actions were objectively reasonable.” Fox v DeSoto,

489 F.3d 227, 236–37 (6th Cir. 2007). “Among the most important factors to consider in

determining the objective reasonableness of the force used are: 1) the severity of the crime at issue;

2) whether the suspect posed an immediate threat to the safety of the police officer or others; and

3) whether the suspect actively resisted arrest or attempted to evade arrest by flight.” Grawey v.

Drury, 567 F.3d 302, 310 (6th Cir. 2009) (citations omitted).

       Applying the above standards to Bolden’s claim, he fails to establish a genuine issue of

material fact that Officer Doyle used excessive force against him. Bolden testified at his deposition

that he complied with all of Officer Doyle’s commands. The only use of force Bolden claims is that



1
  The judgment in juvenile court establishing criminal trespass against Bolden does not bar his
excessive force claim because the excessive force claim does not challenge any of the elements
in a criminal trespass charge under Ohio law. Daubenmire, 507 F.3d at 389; but see Cummings
v. City of Akron, 418 F.3d 676, 683 (6th Cir. 2005) (reasoning that Heck v. Humphrey, 512 U.S.
477 (1994), barred excessive force claim where plaintiff was convicted of assault arising out of
same altercation).

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No. 13-4397, Bolden et al. v. City of Euclid et al.


Officer Doyle pushed Martin into him causing him to stumble onto the fence. If true, this

establishes that Officer Doyle used force against Martin, not Bolden. The evidence does not support

Bolden’s excessive force claim.

       To the extent that Bolden’s excessive force claim is premised on a theory that his handcuffs

were on too tight, his claim likewise has no merit because Bolden conceded that the handcuffs were

loosened after he complained. Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401 (6th Cir.

2009) (requiring evidence that officer ignored complaints to loosen handcuffs) (citation omitted).

       Applying the Grawey factors to Martin, we reach the same conclusion. First, as to the

severity of the crime Officer Doyle believed Martin to be committing, it cannot be disputed that

criminal trespassing is a relatively minor offense. Second, we must consider whether Martin posed

an immediate threat to Officer Doyle or others. Grawey, 567 F.3d at 310. Although under

Plaintiffs’ version of events, Martin did not pose an obvious threat of danger, Martin admitted that

he disregarded Officer Doyle’s commands, reached into his pocket and pulled out his phone to call

his mother. Officer Doyle was justified in using some force (slapping Martin’s phone out of his

hand and taking him to the ground) to secure a non-compliant Martin. At this point, Officer Doyle

did not know if Martin had anything in his pockets. The final Grawey factor requires consideration

of whether Martin actively resisted arrest or attempted to flee. Id. Martin admitted that he refused

to sit down when he was told to do so by Officer Doyle, and that he disregarded Officer Doyle’s

commands because he wanted to call his mother. Martin’s refusal to comply with Officer Doyle’s

lawful commands justified the use of some force to control the situation. In sum, weighing the

Grawey factors, the force used by Officer Doyle to control the situation was objectively reasonable.


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No. 13-4397, Bolden et al. v. City of Euclid et al.


       The district court also concluded that Martin’s alleged injuries were de minimus. We have

explained that the “ ‘extent of the injury inflicted’ is not ‘crucial to an analysis of a claim for

excessive force in violation of the Fourth Amendment.’ ” Morrison, 583 F.3d at 407 (citation

omitted). But, the absence of injury to Martin supports the conclusion that the force used against

him was reasonable. The district court appropriately granted summary judgment to Officer Doyle

on Martin’s excessive force claim.

               c. Count Six – False Arrest

       Plaintiffs allege false arrest under Ohio law in Count Six. The district court determined that

Plaintiffs are precluded from challenging the existence of probable cause to arrest them, and,

therefore, could not maintain a false arrest claim. Alternatively, the district court held that Officer

Doyle is entitled to immunity under state law. Plaintiffs only challenge Officer Doyle’s entitlement

to immunity. However, we do not reach the immunity question because the false arrest claim fails

on the merits. See Jordan v. City of Detroit, 557 F. App’x 450, 454 n.3 (6th Cir. 2014) (explaining

that the “merits first” approach is preferred where a determination on the merits is straightforward).

       Under Ohio law, a false arrest claim requires proof of “ ‘(1) a detention of the person, and

(2) an unlawful detention.’ ” Thacker v. City of Columbus, 328 F.3d 244, 261 (6th Cir. 2003)

(citation omitted). Although the district court incorrectly stated that Plaintiffs’ false arrest claim

required proof of the lack of probable cause to arrest them, reversal is not warranted because the

district court reached the correct result in dismissing the claim. Id.

       The essence of a false arrest claim is that the arrest was without lawful justification. Id.

Plaintiffs’ false arrest claim fails because Martin admitted on the record in juvenile court to


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No. 13-4397, Bolden et al. v. City of Euclid et al.


trespassing, and Bolden was found to have trespassed after a bench trial. Viewing the evidence in

a light most favorable to Plaintiffs, the arrest was justified. Id.; Walker v. Schaeffer, 854 F.2d 138,

142 (6th Cir. 1988).

B. Claim Against City Of Euclid — Count Eleven

       The final issue we address is the City of Euclid’s liability under a failure to

train/discipline/supervise theory. Plaintiffs argue that the City of Euclid has known that Officer

Doyle has been “harassing, abusing and assaulting minors” in the City of Euclid for over a decade,

but has not done anything to prevent him from harming juveniles. According to Plaintiffs, the City

of Euclid therefore caused their constitutional injuries.

       Plaintiffs’ claim against the City of Euclid is untenable because, as explained above, they

have not shown that a constitutional violation occurred. Thurmond v. Cnty. of Wayne, 447 F. App’x

643, 651 (6th Cir. 2011) (“[I]t is well settled that ‘[t]here can be no Monell liability under § 1983

unless there is an underlying unconstitutional act.’ ” (quoting Wilson v. Morgan, 477 F.3d 326, 340

(6th Cir. 2007))).

                                        IV. CONCLUSION

       For the reasons explained above, we AFFIRM the district court’s judgment granting

summary judgment to Defendants.




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No. 13-4397, Bolden et al. v. City of Euclid et al.


        KAREN NELSON MOORE, Circuit Judge, concurring in part and dissenting in part.

I dissent with respect to the majority’s holding affirming summary judgment on Plaintiff Brandon

Martin’s excessive force claim.

        A reasonable jury could find that the force used by Officer Doyle against Martin was

objectively unreasonable pursuant to the three factors we assess in determining whether force is

excessive. See Grawey v. Drury, 567 F.3d 302, 310 (6th Cir. 2009) (excessive force turns on “1) the

severity of the crime at issue; 2) whether the suspect posed an immediate threat to the safety of the police

officer or others; and 3) whether the suspect actively resisted arrest or attempted to evade arrest by

flight.”). As the majority concedes, Martin was stopped for a minor offense—he simply placed one

foot on Doyle’s property. No evidence suggests that Martin posed an immediate threat to Doyle or

others, physically resisted arrest, or was a flight risk. While Martin did not immediately sit down

on the ground per Doyle’s commands and tried to call his mother immediately after he was stopped,

Martin was a juvenile, did nothing more than place a single foot on Doyle’s property, and was not

under arrest at the time he tried to call his mother. And even if some force was necessary to control

the situation as the majority notes, the whole point of the above factors is to determine whether the

amount of force used was reasonable under the circumstances. Here, Doyle pushed Martin into

Bolden. When Martin tried to call his mother, Doyle smacked the phone out of his hand. Then,

without another word, Doyle slammed Martin to the ground and put his knee on Martin’s face and

head. R. 43 (Martin Dep. at 29S31) (Page ID #487S89).1 In the car ride to the police station, Doyle

told Martin that he would “take me down, beat my ass”; Martin testified that Doyle was “saying all
        1
        The majority justifies this force by simply stating that “Officer Doyle did not know if Martin
had anything in his pockets”—but that’s true for virtually every arrestee.

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No. 13-4397, Bolden et al. v. City of Euclid et al.


types of stuff. I was crying because I was scared.” R. 43 (Martin Dep. at 39) (Page ID #497); see

Leary v. Livingston Cnty., 528 F.3d 438, 444S45 (6th Cir. 2008) (citing cases where “scar[ing],

intimidat[ing], and threaten[ing]” arrestee supported excessive force finding). Then, upon arriving

at the station, Doyle grabbed Martin, who was handcuffed at the time, and roughly pulled Martin

out of the car by his shirt causing him to hit the ground. R. 43 (Martin Dep. at 40) (Page ID #498);

see Burgess v. Fischer, 735 F.3d 462, 474 (6th Cir. 2013) (“[T]he Fourth Amendment’s

reasonableness standard applied at least through the booking process”).

       Based on these facts, a reasonable jury could find that the force used by Doyle—against a

non-threatening, not-fleeing juvenile—was objectively unreasonable. See Miller v. Sanilac Cnty.,

606 F.3d 240, 253S54 (6th Cir. 2010) (denying qualified immunity because “a jury could reasonably

find that slamming an arrestee into a vehicle constitutes excessive force when the offense is non-

violent, the arrestee posed no immediate safety threat, and the arrestee had not attempted to escape

and was not actively resisting.”). Consequently, I respectfully dissent from the majority opinion,

and would REVERSE the judgment of the district court with respect to Plaintiff Martin’s excessive

force claim and REMAND for further proceedings.




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