        [Cite as Summerville v. Forest Park, 195 Ohio App.3d 13, 2011-Ohio-3457.]




                         IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO



SUMMERVILLE,                                    :         APPEAL NO. C-090708
                                                          TRIAL NO. A-0707973
          Appellee,                             :
                                                          D E C I S I O N.
  vs.                                           :

CITY OF FOREST PARK ET AL.,                     :

          Appellants.                           :



Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Final Judgment Entered

Date of Judgment Entry on Appeal: July 15, 2011


Law Office of Marc Mezibov, Marc D. Mezibov, and Susan M. Lawrence, for
appellee.

Schroeder, Maundrell, Barbiere & Powers and Lawrence E. Barbiere, for
appellants.
                           OHIO FIRST DISTRICT COURT OF APPEALS



SYLVIA SIEVE HENDON, Judge.

          {¶1}    The Ohio Supreme Court reversed this court’s dismissal of the appeal by

defendants-appellants, the city of Forest Park, Adam Pape, and Corey Hall, of the trial

court’s denial of summary judgment in their favor on claims made by plaintiff-appellee,

Leola Summerville, under Section 1983, Title 42, U.S.Code.1 The case was remanded to

this court for determination of the appeal on the merits.

          {¶2}    The action stemmed from the death of Summerville’s husband,

Roosevelt, after he had been shot by Pape and Hall, two Forest Park police officers.

Summerville, individually and in her capacity as administrator of her husband’s estate,

filed a complaint against Forest Park, Pape, and Hall, asserting causes of action for (1)

excessive use of force under Section 1983, (2) deliberate indifference in failing to

provide adequate medical care under Section 1983, (3) deliberate indifference in failing

to adequately train under Section 1983, (4) wrongful death under R.C. 2125.01, (5)

negligent infliction of emotional distress, and (6) loss of consortium.

          {¶3}    The officers moved for summary judgment, arguing that they were

entitled to immunity under R.C. Chapter 2744 on the state-law claims and to qualified

immunity on the federal claims. The city also moved for summary judgment, arguing

that it was entitled to immunity on the state-law claims and that it was not liable for the

officers’ conduct with respect to the federal claims.

          {¶4}    The trial court granted summary judgment in favor of the city and the

officers on the state-law claims and on the Section 1983 claim for deliberate

indifference in failing to provide adequate medical care. The court denied summary

judgment to the officers with respect to Summerville’s excessive-force claim. It also

denied summary judgment to the city with respect to the claim for deliberate

indifference in failing to adequately train.



1   Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522.


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                              OHIO FIRST DISTRICT COURT OF APPEALS



           {¶5}      We dismissed the appeal by the city and the officers of the trial court’s

decision. In its opinion reversing this court’s dismissal, the Ohio Supreme Court held

that “[a]n order denying a motion for summary judgment in which an employee of a

political subdivision [has] sought immunity from claims brought under Section 1983,

Title 42, U.S.Code is a final, appealable order pursuant to R.C. 2744.02(C).”2


                                        Background Facts


           {¶6}      On September 15, 2005, Detective Adam Pape of the Forest Park Police

was dispatched to a residence for a “possible suicide, inside the bedroom with blood

coming out.” A life squad was on its way to the same residence. Within two or three

minutes, Pape arrived at the home, where he was met by a distraught Leola

Summerville.

           {¶7}      Summerville told Pape that Roosevelt was upstairs. As Pape reached the

top of the stairs, he could hear the sound of gurgled breathing. He turned to his right

and saw Roosevelt lying on the floor of a bedroom at the end of the hallway. Roosevelt

was lying on his back, with his feet near the bedroom door.

           {¶8}      As Pape approached, he saw that Roosevelt was clutching with his right

hand a knife that protruded from the left side of his chest. Pape radioed for the life

squad to “expedite.” Roosevelt pulled the knife from his chest and began to plunge it

into his chest repeatedly, despite Pape’s commands for him to stop. Pape used his

Taser on Roosevelt, but Roosevelt used his left hand to pull one of the Taser’s barbs

from his chest. According to Pape, Roosevelt showed no indication that he felt pain

from either the stabbing or the Taser barbs.

           {¶9}      By that point, Forest Park Officer Corey Hall had arrived at the home

and was standing in the hallway behind Pape.


2   Id., syllabus.


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                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} After pulling out the Taser barb, Roosevelt started to stand up.
According to Pape, Roosevelt fixed his gaze directly on him. Pape testified that “it was

obvious that he was angry that I had deployed the Taser.” Pape kept yelling at him to

stay down. But Roosevelt got to his feet, still holding the knife in his hand, and began

moving towards Pape.

       {¶11} Pape backed out of the bedroom and pulled the door shut to establish a
barrier between Roosevelt and himself, Hall, and Summerville. Then, to put distance

between himself and the closed door, Pape stood in the doorway of an adjacent

bedroom.

       {¶12} Within seconds, Roosevelt opened the bedroom door that Pape had shut.
He was holding the knife in his right hand over his shoulder in a threatening manner.

The knife’s blade was pointed in a downward stabbing position. He was about five or

six feet away from Pape.

       {¶13} Both officers began yelling at Roosevelt to drop the knife. But Roosevelt
lunged toward Pape, raising the knife higher. Roosevelt had taken a step and a half in

Pape’s direction when Pape and Hall simultaneously fired their guns at Roosevelt,

killing him.

       {¶14} An autopsy revealed that Roosevelt had sustained four gunshot wounds,
11 penetrating stab wounds, and three superficial stab wounds. In addition, a barb

from a Taser gun was removed from his abdomen.


                                 Assignments of Error


       {¶15} In two assignments of error, the city and the officers now argue that the
trial court erred (1) by not granting summary judgment to the officers on the basis of

qualified immunity on the Section 1983 claims and (2) by not granting summary

judgment to the city on the Section 1983 claim against it.



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                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} We review a trial court’s grant of summary judgment de novo.3
Summary judgment is proper if “ ‘(1) there is no genuine issue of material fact; (2) the

moving party is entitled to judgment as a matter of law; and (3) it appears from the

evidence that reasonable minds can come to but one conclusion when viewing [the]

evidence in favor of the nonmoving party, and that conclusion is adverse to the

nonmoving party.’ ”4


                                   A. Qualified Immunity


       {¶17} Qualified immunity shields a government official from civil liability
unless (1) the official violated a statutory or constitutional right and (2) that right was

“clearly established” at the time of the challenged conduct.5 “Qualified immunity

balances two important interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.”6

       {¶18} The plaintiff bears the burden of showing that government officials are
not entitled to qualified immunity.7       If the plaintiff fails to demonstrate that a

constitutional right was violated or that the right was clearly established, she will have

failed to carry her burden.8


                        1.     No Constitutional Violation Occurred


       {¶19} Claims that law enforcement officers have used excessive force are
governed by the Fourth Amendment’s “objective reasonableness” standard.9


3 Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.
4 Doe v. Shaffer (2000), 90 Ohio St.3d 388, 390, 738 N.E.2d 1243, quoting Grafton, 77 Ohio
St.3d at 105, 671 N.E.2d 241.
5 See Harlow v. Fitzgerald (1982), 457 U.S. 800, 818, 102 S.Ct. 2727.
6 Pearson v. Callahan (2009), 555 U.S. 223 , ___, 129 S.Ct. 808, 815.
7 Untalan v. Lorain (C.A.6, 2005), 430 F.3d 312, 314.
8 Chappell v. Cleveland (C.A.6, 2009), 585 F.3d 901, 907.
9 Graham v. Connor (1989), 490 U.S. 386, 395, 109 S.Ct. 1865.




                                                5
                         OHIO FIRST DISTRICT COURT OF APPEALS



Application of the test for reasonableness “requires careful attention to the facts and

circumstances of each particular case.”10 The use of deadly force is reasonable if “the

officer has probable cause to believe that the suspect poses a threat of serious physical

harm, either to the officer or to others.”11

        {¶20} In determining the reasonableness of an officer’s use of force, courts
must judge the situation “from the perspective of a reasonable police officer on the

scene, rather than with the 20/20 vision of hindsight.”12         Courts must allow “for the

fact that police officers are often forced to make split-second judgments – in

circumstances that are tense, uncertain, and rapidly evolving – about the amount of

force that is necessary in a particular situation.”13

        {¶21} In the summary-judgment context, “if there is some evidence—more
than a mere scintilla of evidence—that [the decedent], through his conduct, judged

from the perspective of reasonable officers on the scene, did not give the officers

probable cause to believe that he posed a serious threat of harm, a genuine fact dispute

is created.”14 But “ ‘the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment;

the requirement is that there be no genuine issue of material fact.’ ”15

        {¶22} Pape and Hall argue that the evidence demonstrated that they did not
violate Roosevelt’s constitutional rights. They contend that the circumstances had

clearly established probable cause to believe that serious harm was imminently

threatened and that their use of deadly force in self-defense was justified.

        {¶23} In support of their summary-judgment motion, Pape and Hall offered
the opinion of Joseph J. Stine, an expert in the training, practices, and procedures used


10 Id. at 396.
11 Tennessee v. Garner (1985), 471 U.S. 1, 11, 105 S.Ct. 1694.
12 Graham, 490 U.S. at 396.
13 Id. at 396-397.
14 (Emphasis sic.) Chappell, 585 F.3d at 909.
15 (Emphasis sic.) Scott v. Harris (2007), 550 U.S. 372, 380, 127 S.Ct. 1769, citing Anderson v.
Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-248, 106 S.Ct. 2505.


                                                   6
                          OHIO FIRST DISTRICT COURT OF APPEALS



by police in the performance of their duties. According to Stine, police officers are

trained that when they encounter a person who is armed with a knife and is deemed a

threat, the officers should maintain a “reactionary gap of 21 feet between themselves

and the person with the knife.”         If a suspect with a knife is within the “21 foot

reactionary gap,” the suspect can stab or cut an officer before the officer has a chance to

defend himself.      Stine opined that in this case, the officers had been even more

vulnerable to attack because Roosevelt had been only a few steps away when he had

lunged at them. According to Stine, Pape and Hall had acted in accordance with

professional police practices and procedures and within accepted guidelines for the use

of deadly force.

       {¶24} On the other hand, Summerville argues that a genuine issue of fact
remained as to whether the officers’ use of force was unreasonable and excessive. First,

she points to her own testimony that she had not seen Roosevelt rise from his position

on the ground and that she had not heard the bedroom door being shut or reopened.

But her testimony presented no genuine issue of material fact.

       {¶25} Summerville testified that when she had gone upstairs, she saw her
husband lying on the bedroom floor, stabbing himself.            At that time, Pape had

instructed her to go into the bathroom. She had acquiesced and had closed the

bathroom door behind her. From the bathroom, she had heard the officers repeatedly

instruct Roosevelt to drop the knife.

       {¶26} At one point, Summerville testified, she had opened the bathroom door
and had seen Pape standing immediately outside the bathroom, holding a Taser. She

testified that she had not known whether Roosevelt was still on the ground at that time

because she did not look into the bedroom. She had then closed the bathroom door

and, within a minute, had heard four or five gunshots.

       {¶27}       Summerville’s testimony in no way contradicted the officers’ testimony

with respect to Roosevelt’s actions immediately preceding the shooting. Her testimony


                                                 7
                        OHIO FIRST DISTRICT COURT OF APPEALS



did not dispute the officers’ testimony that Pape had shut the bedroom door and that

Roosevelt had lunged at Pape. Whether or not Summerville had seen Roosevelt get up

or had heard the bedroom door being moved was immaterial to the determination of

whether the officers had reasonably believed that Roosevelt posed an imminent risk of

serious harm to them or to her.

       {¶28} Summerville also points to the report of her expert witness, Gary Rini, a
forensic-science consultant, who opined that (1) the autopsy description of the bullet

path of “gunshot wound #1” precluded the possibility that Roosevelt’s right arm had

been “raised upright, and facing the officers,” at the time he had sustained the wound;

(2) based upon the width of the bedroom doorway and Roosevelt’s final resting place on

the bedroom floor, Roosevelt was inside the bedroom at the time he sustained his fatal

gunshot wounds; and (3) based upon the autopsy’s description of the bullet wounds

through the body, and upon the officers’ statements that they had fired their weapons at

the same time, Roosevelt “could not have been standing upright, facing Pape and Hall,

when he sustained his fatal gunshot wounds.”

       {¶29} None of Rini’s opinions created a genuine issue of material fact. Rini’s
opinion that Roosevelt’s right arm could not have been “raised upright, and facing the

officers” at the time that he had sustained “gunshot wound #1” was of no consequence

because neither officer testified that Roosevelt’s right arm had been raised in an upright

position “facing” them. Hall testified that as Roosevelt had started toward Pape, “his

torso leaned forward and the knife began to raise higher above his head and shoulders.”

Pape testified that Roosevelt’s hand was above his shoulder and then went higher as he

lunged. Moreover, even taken at face value, Rini’s statement does not contradict the

officers’ testimony that Roosevelt was holding a knife as he advanced toward them in an

aggressive manner.

       {¶30} Rini’s opinion that Roosevelt had been inside the master bedroom when
he sustained his fatal gunshot wounds was immaterial as well. Pape testified that after


                                                8
                        OHIO FIRST DISTRICT COURT OF APPEALS



having been shot, Roosevelt “fell back into the bedroom almost into the exact same

position he was when [Pape] initially came up the stairs.” Hall testified, “[M]y handgun

was still up and he was gone – which means [Roosevelt] dropped out from below –

then when I brought my handgun back down, I saw him on the ground.” Even if it was

true that Roosevelt had not fully exited the bedroom before being shot, the officers’

uncontroverted testimony was that Roosevelt had been five to seven feet from Pape

when he lunged one or two steps toward him and that both officers had believed that

serious harm was imminent.

       {¶31} Finally, Rini opined, “Based on the description of the bullet wounds
provided in the autopsy, and the officers’ statements that ‘I think we shot at the very

same time,’ Mr. Summerville could not have been standing upright, facing Pape and

Hall, when he sustained his fatal gunshot wounds.” But Hall testified that Roosevelt’s

torso was bent forward. When Pape was asked whether Roosevelt had been “standing

straight up,” Pape responded, “He was lunging. * * * [H]is right foot [was] forward.”

When asked if Roosevelt’s weight was forward, Pape answered, “Yes.” Neither officer

had testified that Roosevelt had been standing upright when he was shot, so Rini’s

opinion on that point was irrelevant. Moreover, the uncontradicted autopsy report,

relied on by Rini in forming his opinion, explicitly described the four gunshot wounds

as having entered the front of Roosevelt’s body, thus supporting the officers’ contention

that he had been advancing toward them.

       {¶32} The relevant and undisputed testimony of the officers was that their
attempts at controlling Roosevelt with nonlethal force—verbal commands and a Taser—

had failed.   Roosevelt had shown no signs of pain when he was stabbing himself or

when he was struck by the Taser barbs. When he got up, he was holding a knife in a

stabbing position while ignoring the officers’ commands to drop the knife. He lunged

toward Pape, who stood just a few feet away, and both officers believed that Roosevelt




                                               9
                         OHIO FIRST DISTRICT COURT OF APPEALS



presented an imminent risk of death or serious injury to themselves and to

Summerville.

       {¶33} Summerville failed to adduce evidence refuting the officers’ account of
the circumstances they confronted. Consequently, Summerville failed to present a

genuine issue of material fact on her claim that Pape and Hall had violated Roosevelt’s

Fourth Amendment right to be free from unreasonable seizure. Moreover, she failed to

demonstrate that they were not entitled to qualified immunity.

       {¶34} Therefore, we hold that Pape and Hall are entitled to qualified immunity
on Summerville’s Section 1983 claims against them. We sustain the first assignment of

error and enter judgment for both Pape and Hall on those claims.                    Because

Summerville has not shown that Pape and Hall used excessive force in shooting at

Roosevelt, we need not address whether Roosevelt had a “clearly established” right

to be free from being fired upon.


                                 B. No Liability for the City


       {¶35} Because Summerville failed to establish that the officers had committed
a constitutional violation, the city of Forest Park cannot be held liable under Section

1983.16 Accordingly, we sustain the second assignment of error and enter judgment in

favor of Forest Park on Summerville’s failure-to-train claim under Section 1983.

                                                                   Judgment accordingly.



SUNDERMANN, P.J., and CUNNINGHAM, J., concur.




16 Summerland v. Livingston (C.A.6, 2007), 240 Fed.Appx. 70, 79; Los Angeles v. Heller (1986),
475 U.S. 796, 799, 106 S.Ct. 1571.


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