                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0640n.06

                                       Case No. 17-3106

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                       FILED
HOLLY ANDERSON,                                   )              Nov 17, 2017
                                                  )          DEBORAH S. HUNT, Clerk
       Plaintiff,                                 )
                                                  )       ON APPEAL FROM THE UNITED
v.                                                )       STATES DISTRICT COURT FOR
                                                  )       THE NORTHERN DISTRICT OF
CONNIE SUTTON, In her individual                  )       OHIO
capacity,                                         )
                                                  )
       Defendant-Appellee,                        )
                                                  )
DAVID W. DOAK, Sheriff, In his individual         )
and official capacities; PORTAGE COUNTY           )
BOARD OF COMMISSIONERS,                           )
                                                  )
       Defendants-Appellants,                     )
                                                  )
PORTAGE COUNTY SHERIFF’S                          )
DEPARTMENT, et al.,                               )
                                                  )
       Defendants.                                )

       BEFORE: CLAY, COOK, and WHITE, Circuit Judges.

       CLAY, Circuit Judge. Defendants-Appellants Portage County Board of Commissioners

and Sheriff David Doak (collectively, the “County”) appeal the district court’s judgment in this

42 U.S.C. § 1983 action. The County argues that it had no duty to defend Defendant-Appellee

Connie Sutton, a corrections officer, from the claims made by a prison inmate, Plaintiff Holly
Case No. 17-3106, Anderson v. Sutton


Anderson, alleging that Sutton assaulted Anderson during a prison fight. For the reasons set

forth below, we REVERSE the judgment of the district court.

                                       BACKGROUND

        On June 13, 2012, corrections officer Connie Sutton was responsible for overseeing the

female section of the Portage County Jail. She was the only officer on duty at the time of the

incident in question, and the unit was overcrowded: it had capacity for 34 inmates but housed 52,

resulting in cramped conditions. Inmates reportedly were angry about the overcrowding.

       At around 8:00 pm, Anderson was in the prison’s common area. She then walked

through an open doorway to Sutton’s desk, to ask permission to attend a church service. Sutton

refused, saying church was a privilege and Anderson had been “nasty” all day. Anderson

returned to the common area. A few minutes later, she went back to Sutton’s desk to request

prison grievance forms for herself and a friend. Sutton gave a form to Anderson, but said the

friend would have to request one herself. What happened next was captured on two different

video cameras.

       Anderson returned to the common area and said something to Sutton. She continued

walking away, then turned and said something else. According to Sutton, Anderson called her a

“nigger bitch” and vowed to “take her down.” Sutton called Anderson a “bald-headed heifer.”

Anderson walked away, towards cell #43. A moment later, Sutton also walked in that direction,

holding a grievance form to give to the inmate in that cell. Anderson turned to face Sutton,

seeming to impede her progress. At that point, she may have poked Sutton in the chest. The two

traded insults, inches apart, until Sutton pushed Anderson away. They then advanced towards

each other until Sutton again pushed Anderson away.




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Case No. 17-3106, Anderson v. Sutton


         A fight ensued. Both Sutton and Anderson threw punches. After about 10 seconds,

Sutton wrestled Anderson to the ground. While Anderson was on the ground, Sutton got on top

of Anderson, put her hands around Anderson’s neck, and repeatedly punched and slapped her in

the face. She appeared to choke Anderson, who was squirming beneath her, largely helpless.

Anderson eventually managed to crawl a few feet away, at which point she pushed Sutton

backward with her feet. She then turned to look at her elbow, which was apparently injured.

She made no attempt to get up or otherwise resume the confrontation. While Anderson was

lying on the ground, not resisting, Sutton slowly and deliberately walked over and sprayed her in

the face with “OC spray,” i.e., pepper spray. Anderson shook her head back and forth in an

attempt to avoid the spray and then sat on her knees, hunched over and exhausted. Again, she

made no attempt to get up or otherwise resume the confrontation. Nonetheless, Sutton walked

around her and again sprayed her in the face with pepper spray. At that point, the altercation

ended. Anderson was hunched over panting, repeatedly saying “I can’t breathe.”

         Within 24 hours, the County put Sutton on administrative leave. Two days later, Sutton

was fired. She was later convicted in Ohio state court of aggravated felonious assault on

Anderson. The jury in that case rejected Sutton’s defense that her use of force was justified.

         In 2014, Anderson sued Sutton and the County in the district court under 42 U.S.C.

§ 1983, for cruel and unusual punishment. The court appointed pro bono counsel for Sutton.

The County asserted a cross-claim against Sutton, demanding indemnification against any

unfavorable judgment.             Sutton asserted cross-claims against the County, demanding

indemnification and a paid legal defense.1 Her duty-to-defend claim was based on Ohio Revised

         1
           Although Sutton already had pro bono counsel, the duty-to-defend issue potentially affects possible
attorney’s fees. Specifically, if there was a duty to defend, then pro bono counsel may be entitled to attorney’s fees
from the County. Rogers v. Youngstown, 574 N.E.2d 451 (Ohio 1991).


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Case No. 17-3106, Anderson v. Sutton


Code § 2744.07(A)(1), which states that a defense will be provided to any state employee whose

challenged action was taken in good faith and was not manifestly outside the scope of

employment.

       The only claim relevant to this appeal, however, is Sutton’s duty-to-defend cross-claim

against the County. At a deposition, Sutton was asked whether the altercation with Anderson

“was an exercise of [her] duties as a correctional officer in controlling or subduing an aggressive

inmate.” Sutton answered yes. She was also asked whether her actions were “necessitated by

[Anderson’s] actions . . . .” Again, she answered “yes.” She said Anderson had put “her hand

behind my neck and pull[ed] me down,” causing the resulting wrestling match. She said she

used pepper spray the first time because Anderson was “aggressive” and “not under control.”

But, according to Sutton, the spray “missed,” so she sprayed Anderson a second time. She

denied using force “for the purpose of disciplining [Anderson] for her aggressiveness.”

       The County moved for summary judgment on the duty-to-defend claim, and the district

court denied the motion. Viewing the evidence in Sutton’s favor, the district court provided the

following account of the incident in question:

       Before reentering the day space, the video shows Anderson gesticulating towards
       Sutton’s desk. This lends support to Sutton’s version of the encounter: Anderson
       verbally attacked her for not allowing Anderson to attend church services and,
       while doing so, Anderson physically crossed a line on the floor that inmates are
       required to stand behind. It is also true that Sutton called Anderson names.
       While unprofessional, the name calling was not unprovoked or unmatched.
       The video shows that Anderson continued to argue with Sutton and call her
       names . . . after Sutton ordered Anderson to return to her mat. It cannot be
       understated that, Anderson, not Sutton, escalated, what had been just a verbal
       altercation, into a brawl when Anderson (1) poked Sutton in the right shoulder
       and (2) repeatedly recoiled into Sutton’s reactionary gap [i.e., the arm’s length
       space around a corrections officer], after Sutton twice shoved her away, using a
       tactic that is within the discretion of corrections officers if the situation calls for it.
       After the second push out of the reactionary gap, Anderson pulls Sutton’s hair.

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Case No. 17-3106, Anderson v. Sutton


        From that point forward, Anderson and Sutton fight for thirty seconds.
        This physical encounter culminates with Sutton’s two attempts at calming
        Anderson with the OC spray.

Anderson v. Sutton, No. 14-cv-1272, 2016 WL 1258585, at *9 (N.D. Ohio Mar. 31, 2016).

A review of the video of the incident reveals the district court’s depiction of events to be largely

accurate, except for the district court’s account of Anderson being pepper sprayed by Sutton; as

explained below, the video reveals the pepper spraying of Anderson to have been gratuitous and

unnecessary.

        After summary judgment was denied, the duty-to-defend claim proceeded to a bench

trial. The district court ultimately ruled for Sutton, reasoning that she had acted in good faith to

subdue Anderson, whom the district court characterized as an aggressive inmate. The court

incorporated by reference the findings made in its summary judgment ruling. See Anderson v.

Sutton, No. 14-cv-1272, 2016 WL 7492501, at *5 (N.D. Ohio Dec. 30, 2016). The County

timely appealed. In a post-judgment order, the district court deferred determining attorney’s fees

until this appeal is resolved.

                                           ANALYSIS

I.      Standard of Review

        We review the district court’s factual findings for clear error and legal conclusions de

novo. See Max Trucking, LLC v. Liberty Mut. Ins. Corp., 802 F.3d 793, 803 (6th Cir. 2015).

“[A] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a mistake has been

committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (quotation

marks and citation omitted). “Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous. This is so even when the district


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Case No. 17-3106, Anderson v. Sutton


court’s findings do not rest on credibility determinations, but are based instead on physical or

documentary evidence or inferences from other facts.” Id. at 574 (citations omitted).

II.    Analysis

       Sutton is entitled to a paid defense if she acted in good faith and not manifestly outside

the scope of her employment. The applicable provision of the Ohio Revised Code reads as

follows:

       [A] political subdivision shall provide for the defense of an employee, in any state
       or federal court, in any civil action or proceeding which contains an allegation for
       damages for injury, death, or loss to person or property caused by an act or
       omission of the employee in connection with a governmental or proprietary
       function. The political subdivision has the duty to defend the employee if the act
       or omission occurred while the employee was acting both in good faith and not
       manifestly outside the scope of employment or official responsibilities.

Ohio Rev. Code § 2744.07(A)(1).

       The district court ruled that this standard was satisfied. As discussed above, the court

blamed Anderson for the fight, finding that she had crossed the red line surrounding Sutton’s

desk, refused Sutton’s orders, escalated the confrontation by poking Sutton’s shoulder, and

invaded Sutton’s reactionary gap. Anderson, 2016 WL 1258585 at *9. The court stated that the

fight “culminate[d] with Sutton’s two attempts at calming Anderson with OC spray,” which

implies a finding that the spraying was intended to subdue Anderson, not to inflict gratuitous

punishment. Id. It concluded that “the video paints a largely unambiguous factual picture that is

contrary to that suggested by the County.” Id.

       We disagree. Even assuming that Sutton acted within the scope of her employment and

initially acted in good faith during the altercation, our review of the video convinces us that she

failed to act in good faith when she twice walked over to Anderson to administer pepper sprays

that were clearly unnecessary. The video of the incident, upon which the district court relied,

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Case No. 17-3106, Anderson v. Sutton


shows that when Sutton first sprayed Anderson, Anderson was lying on her back, holding her

elbow. She was not a threat. When Sutton sprayed Anderson the second time, Anderson was on

her knees, hunched over, looking at the ground. Again, she was not a threat. While Sutton was

repeatedly administering the pepper spray, several inmates who were present during the incident

can be heard pleading with Sutton to stop pepper spraying Anderson—who appeared to be

helpless and prostrate. Consequently, we cannot agree with the district court that these sprays

were attempts to “calm” Anderson. Rather, we are convinced that Sutton was attempting to

punish or retaliate against Anderson for Anderson’s role in the fight. And because we find that

Sutton was attempting to inflict gratuitous physical punishment, we conclude that she was not

acting in good faith. Therefore, the County had no obligation to defend her.

                                        CONCLUSION

       For the reasons stated above, we REVERSE the judgment of the district court and

REMAND for proceedings consistent with this opinion.




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Case No. 17-3106, Anderson v. Sutton


       HELENE N. WHITE, Circuit Judge, dissenting.

       Because the district court’s findings were not clearly erroneous and Ohio law does not

support the majority’s conclusion that the record, particularly the videos, can only support the

inference that Sutton acted in bad faith, I dissent.

       “[A] determination whether a political subdivision owes a duty to defend an employee is

a fact-sensitive issue.” Whaley v. Franklin Cty. Bd. of Comm’rs, 752 N.E.2d 267, 273 (Ohio

2001); see also Moore v. City of Cleveland, 2017 WL 1180701, at *4 (Ohio Ct. App. Mar. 30,

2017) (“We recognize that whether an employee acted . . . in bad faith . . . is generally a question

of fact.”) (citing Fabrey v. McDonald Village Police Dep’t, 639 N.E.2d 31 (Ohio 1994)).

       As the majority acknowledges, we review the district court’s factual findings for clear

error. Maj. Op. at 5–6. Under that standard, this court is not entitled “to reverse the finding of

the trier of fact simply because it is convinced that it would have decided the case differently.”

Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). Here, the district court found

Sutton acted in good faith after holding a full-day evidentiary hearing in which Sutton and the

County presented testimony and documentary evidence. Reviewing the record, including the

videos, I do not agree that the district court’s finding was clearly erroneous.

       Sutton testified that she was pulled down to the floor by Anderson, and the video

supports that testimony: Anderson was either holding Sutton’s neck or her hair when the two

went to the ground and Sutton landed on top of Anderson. While Anderson and Sutton were on

the ground, Anderson removed a pen from Sutton’s pocket. During Sutton’s criminal trial,

Anderson admitted that she considered using that pen as a weapon against Sutton. Focusing on

the pepper spray, Sutton—as the only officer on duty in that portion of the overcrowded jail—

could reasonably have believed pepper spray was necessary to subdue Anderson. The majority


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Case No. 17-3106, Anderson v. Sutton


concludes that because Anderson was on the ground at the time of the first spray, “[s]he was not

a threat.” Maj. op. at 7. However, Anderson was also on the ground when she kicked Sutton

backward, which undermines the conclusion that Anderson was “helpless and prostrate.” Id.

Sutton testified that she believed Anderson “blocked” the first pepper spray attempt, so she

administered the spray a second time. The district court found that the videos supported Sutton’s

belief: “Comparing Anderson’s reaction after the second administration to her reaction after the

first, it appears the first attempt was a miss or not a full-on strike, while the second hit its mark.”

Anderson v. Sutton, No. 5:14cv1272, 2016 WL 1258585, at *1 n.2 (N.D. Ohio Mar. 31, 2016).

         The district court made its finding of good faith after it had the opportunity to judge the

witnesses’ credibility in conjunction with the video evidence. See Fed. R. Civ. P. 52(a)(6). The

videos support both Sutton’s and the County’s theories. As the County argues, the videos show

that Sutton threw the first punch, had her hands around Anderson’s neck, and used pepper spray

when Anderson was not actively resisting Sutton. However, as Sutton argues, the videos also

show Anderson initiating the first physical contact, recoiling into Sutton’s reactionary gap,

pulling Sutton to the ground by her hair, grabbing a pen from Sutton’s pocket, kicking Sutton in

the groin, and reacting differently to the second pepper-spray strike. Because the videos support

both theories, the district court’s “choice between them cannot be clearly erroneous.” Anderson,

470 U.S. at 573.

         Further, Ohio law does not support the majority’s decision. Although the videos justify

the conclusion that Sutton’s use of force was excessive, that does not mean she acted in bad

faith.   Citing only its “review of the video,” the majority is “convinced that Sutton was

attempting to punish or retaliate against Anderson for Anderson’s role in the fight.” Maj. Op. at

7. The majority concedes that Sutton “initially acted in good faith,” but finds she “failed to act in


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Case No. 17-3106, Anderson v. Sutton


good faith when she twice walked over to Anderson to administer pepper sprays that were

clearly unnecessary.” Id. Based on that finding, the majority concludes Sutton was acting in bad

faith.

         However, the majority’s conclusion about Sutton’s use of pepper spray, standing alone,

neither compels nor allows a finding of bad faith. Under Ohio law:

         [B]ad faith, although not susceptible of concrete definition, embraces more than
         bad judgment or negligence. It imports a dishonest purpose, moral obliquity,
         conscious wrongdoing, breach of a known duty through some ulterior motive or
         ill will partaking of the nature of fraud.

Buckeye Union Ins. Co. v. New England Ins. Co., 720 N.E.2d 495, 499 (Ohio 1999) (quotation

marks and citation omitted); see also Jackson v. McDonald, 760 N.E.2d 24, 29 (Ohio Ct. App.

2001).

         In Thomas v. Ohio Department of Rehabilitation & Corrections, 548 N.E.2d 991 (Ohio

Ct. App. 1991), an inmate disobeyed a corrections officer’s verbal commands. The corrections

officer struck the inmate with a “leather sack filled with lead balls,” breaking the inmate’s nose.

Id. at 992. A disciplinary committee found the corrections officer used excessive force and he

was fired. Id. Nevertheless, the court rejected the argument that the officer acted maliciously

because “[t]here was no indication that [the officer] intentionally used force . . . because of

improper motive[]” and “no evidence in the record whatsoever that [the officer’s] actions arose

out of personal ill-will . . . or that he held . . . a personal vendetta” against the inmate. Id. at 995.

There, as here, “[t]he only evidence in the record was that he used excessive force in the course

of carrying out his job duties.” Id.

         “Bad faith is not prompted by an honest mistake as to one’s rights or duties, but by some

interested or sinister motive.” Wrinn v. Ohio State Highway Patrol, No. 11AP-1006, 2013 WL

1200256, at *3 (Ohio Ct. App. Mar. 26, 2013). Not every officer using excessive force does so

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Case No. 17-3106, Anderson v. Sutton


in bad faith, as “mistakes are sometimes made in judging whether a person is exhibiting

aggression.” Martin v. Cent. Ohio Transit Auth., 590 N.E.2d 411, 418 (Ohio Ct. App. 1990).

Here, the only evidence of Sutton’s alleged “bad faith” is her excessive force. Although the

majority finds Sutton was “attempting to inflict gratuitous physical punishment,” Maj. Op. at 7,

Thomas makes clear that a finding of bad faith requires some evidence that Sutton had a sinister

motive or held ill will toward Anderson. Thomas, 548 N.E.2d at 995. There is no evidence to

that effect. To the contrary, Sutton denied using force against Anderson as a means to punish

her. Sutton testified that she had no prior physical or verbal altercations with Anderson and

previously attempted to mentor Anderson. County Defendants did not introduce any evidence to

rebut that testimony and the district court found Sutton credible. See United States v. Navarro-

Camacho, 186 F.3d 701, 705 (6th Cir. 1999) (“This court accords great deference to such

credibility determinations.”).

       Therefore, because the district court’s factual findings were not clearly erroneous and

because Ohio law does support a finding of bad faith, I dissent.




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