Case: 2:10-cv-00644-EAS-MRA Doc #: 69 Filed: 12/14/10 Page: 1 of 27 PAGEID #: 1575

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT SHREVE, et aI., Plaintiffs,
v.
FRANKLIN COUNTY, OHIO et al.,
Defendants.

Case No. 2:10-cv-644 JUDGE SARGUS MAGISTRATE JUDGE ABEL

OPINION AND ORDER

Presently before the Court are interested party the United States of America's Motion to Intervene (Doc. 45), Plaintiffs' Motion for Leave to File Second Amended Complaint (Doc. 66), Plaintiffs' Motion for Class Certification and Appointment of Class Counsel (Doc. 4), and the National Fraternal Order of Police's Motion to File an Amicus Brief on Behalf of Defendants (Doc. 62). For the reasons set forth herein, the Court hereby GRANTS these motions. Also before the Court is Plaintiffs' Motion to Compel Inspection (Doc. 14). Because the Parties have represented that this motion is moot, it is hereby DISMISSED.
I. Background Plaintiffs Robert Shreve, Michael Worley, Michael Reed, and Dawn Fiore-Bruno bring the instant class action lawsuit against Franklin County, Ohio, Sheriff Jim Kames, and various sheriff deputies, alleging a pervasive practice wherein prisoners at the Franklin County Corrections Centers are subjected to excessive force through the use of stun guns manufactured by TASER International, Inc. (commonly known as and referred to hereinafter as "tasers"). The Franklin County Sheriffs Office ("Sheriffs Office") operates the two Franklin County Corrections Centers ("FCCCs"). Plaintiffs Shreve, Reed, and Fiore-Bruno were all formally

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incarcerated in one of the FCCCs and have since been released. (Am. Compl. ~~ 11,15, & 17.) Plaintiff Worley remained incarcerated at the time Plaintiffs filed their amended complaint on August 27,2010 (Am. Compl. ~ 13), but Plaintiffs have indicated that he has since been released. (See Doc. 23 at 9.)
Each of the four named Plaintiffs alleges that he or she was subjected to excessive force while incarcerated at the FCCCs through the use of tasers by sheriff's deputies. (See Am. Compl. ~~ 75-237.) Each brings individual claims for money damages pursuant to 42 U.S.C. § 1983 for violations of their Fourth, Eighth, and/or Fourteenth Amendment rights. (See Am. Compl. ~~ 75-237.) Additionally, Plaintiffs Shreve and Worley also bring claims for injunctive and declaratory relief on behalf of themselves and a prospective class consisting of "[a]ll persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriff's Department at the Franklin County Corrections Centers." (Am. Compl. ~240.) By Order dated July 20, 2010, the Court granted Plaintiffs permission to move immediately for class certification and appointment of class counsel. (See Doc. 3.)
On November 2,2010, the United States of America, acting through the Department of Justice, Civil Rights Division ("Department of Justice"), filed a statement of interest in this action (Doc. 42). The next day, following a telephone status conference involving all parties, the Department of Justice formally filed a motion to intervene pursuant to Federal Rule of Civil Procedure 24 (Doc. 45), claiming an interest in this action arising from the Attorney General's authority under 42 U.S.C. § l4l41(b). Additionally, the National Fraternal Order of Police ("NFOP") has sought permission to file an amicus brief in this matter (Doc. 62). Finally, on
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December 10, 2010, Plaintiffs moved for leave to amend their complaint for the second time (Doc. 66). The Court now considers each of these motions in tum.!
II. Motion ofthe NFOP to File an Amicus Brief As the motion of the NFOP for leave to file an amicus brief (Doc. 62) is unopposed, it is hereby granted.
III. Plaintiffs' Motion for Leave to File Second Amended Complaint Plaintiffs have requested leave to file a second amended complaint that provides the names of Defendants heretofore referred to as John and Jane Does. As this motion (Doc. 66) is unopposed, it is hereby granted.
IV. The Department of Justice's Motion to Intervene The Department of Justice seeks to intervene as a matter of right pursuant to Rule 24(a), and in the alternative, seeks permission to intervene under Rule 24(b). The Court finds that the Department of Justice has timely established its right to intervene. Additionally, permissive intervention under Rule 24(b) would be appropriate in this case.
A. Rule 24(a) Intervention Rule 24(a) provides that: On timely motion, the court must permit anyone to intervene who: ... (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. FED. R. CIV. P. 24(a). The Sixth Circuit has extrapolated the following four elements from Rule 24(a) that must be satisfied to establish a right to intervene:
1 The Fraternal Order of Police, Capital City Lodge No.9 has moved to intervene as a party (Doc. 59). This Opinion and Order does not address the motion as the matter is disputed and not fully briefed.
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(1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor's ability to protect their interest may be impaired in the absence of intervention; and (4) the parties already before the court cannot adequately protect the proposed intervenor's interest. Coal. to De/end Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007). The Department of Justice has met each of these factors.
1. Timeliness "The determination of whether a motion to intervene is timely should be evaluated in the context of all relevant circumstances." Jansen v. City a/Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). Factors that should be considered in evaluating timelines include (1) the progression of the suit; (2) the purpose for intervention; (3) the amount of time before attempted intervention during which the intervening party was aware of its potential interest in the case; (4) prejudice to the original parties that could arise as a result of the intervenor's failure to intervene upon discovering its interest in the case; and (5) any unusual circumstances weighing for or against intervention. ld. In the instant case, a balancing of these factors indicates that the Department of Justice's motion to intervene is timely. Prior to the Department of Justice's motion to intervene, the Court had not ruled on the pending motion for class certification and the parties were engaged in limited discovery in preparation for a hearing on Plaintiffs' motion for a preliminary injunction (Doc. 6). Significantly, at the time of its proposed intervention, the Department of Justice indicated that it was prepared to participate at the then-scheduled preliminary injunction hearing, which was initially scheduled for November 8th• (See Doc. 42 at 3.) The Department of Justice's purpose in intervening is the enforcement of 42 U.S.C. § 14141, which makes it unlawful "for any governmental authority, or any agent thereot~ or any
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person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers" that deprive individuals of their constitutional rights. 42 U.S.c. § 14141 (a). The Department of Justice also purports to intervene for purposes ofjudicial economy, as its claims essentially overlap with Plaintiffs' claims, and will rely on identical discovery. "The 'purposes of intervention' prong ofthe timeliness element normally examines only whether the lack of an earlier motion to intervene should be excused, given the proposed intervenor's purpose ...." Stupak-Thrall v. Glickman, 226 F.3d 467, 479 n.15 (6th Cir. 2000) (emphasis in original). Accordingly, the Court will consider the second prong in relation to the third prong of the timeliness analysis.
The Department of Justice represents that it became aware of this action in July 2010, and indicated its intent to intervene approximately three and one half months later and less than one week before the scheduled preliminary injunction hearing-a hearing that had been set in early August. (See Doc. 10.) During that time, the Department of Justice represents that it was reviewing the case before making the determination as to whether to intervene. While attempted entry into the case on the eve of a preliminary injunction hearing that had been on the calendar for three months weighs against the timeliness of the Department of Justice's motion. the Department of Justice's purpose for intervening outweighs the delay, particularly given that it did not seek a delay of the hearing date (the Defendants properly sought additional time to depose the Department of Justice's witnesses and add an additional expert). The Attorney General is given the authority to enforce § 14141(a), a statute enacted to protect constitutional rights. Additionally, because the Department of Justice's claims overlap with those of Plaintiffs and similar relief is sought, judicial economy and efficiency are furthered by allowing the Department of Justice to intervene as opposed to filing a separate action against Defendants.
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Turning now to the fourth factor, the Court finds that none of the parties would be prejudiced by allowing the Department of Justice to intervene at this point in the litigation. The Department of Justice's prospective involvement in this case has lead to an expansion ofthe discovery process, through the designation of additional expert witnesses. However, this has not been prejudicial to Defendants because they have also been afforded the opportunity to secure additional experts of their own, and to depose the Department of Justice's experts. The expanded discovery process has proceeded in a relatively orderly and timely manner. Similarly, as noted, the Department of Justice does not bring any claims in addition to those brought by Plaintiffs and seeks similar injunctive relief.
While the Court does not identify any unusual factors present in this case per the fifth prong, a balancing of the other four prongs indicates that the Department of Justice's motion to intervene is timely. The litigation had not progressed to an advanced stage at the time of the Department of Justice's motion. While the motion was filed several months after the Department of Justice became aware of this suit, the Department of Justice has articulated legitimate and important purposes for intervening that outweigh the effects of the delay. Finally, the other parties will not be prejudiced by the Department of Justice's intervention.
2. Legal Interest The second element necessary for an intervention of right under Rule 24(a) requires that "the proposed intervenor has a substantial legal interest in the subject matter of the case." Coal. to Defend Affirmative Action, 501 F.3d at 779. The Department of Justice's asserted interest in this case easily meets this element. Plaintiffs have filed suit seeking an injunction to end what they term "a pervasive practice of subjecting arrestees and inmates at the [FCCes] to the excessive and disproportionate use offorce." (Am. Compl. ~ 2.) The Attorney General is tasked
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with enforcing § 14141, which itself makes it unlawful for government entities to engage in a pattern or practice of depriving persons of their constitutional rights. Thus, the Attorney General and the Department of Justice have a clear and substantial interest in the present litigation.
3. Impairment ofthe Department of Justice's Interest The third element that must be established by the Department of Justice is that its ability to protect its interest may be impaired in the absence of intervention. Coal. to Defend Affirmative Action, 501 F.3d at 779. Here, given the Attorney General's authority to assert claims for injunctive relief of the same nature as those asserted by Plaintiffs, and that the Department of Justice's claims arise from facts identical to those of Plaintiffs' claims, the third element is met because the Department of Justice's interest could be impaired by an adverse ruling. See Ne. Ohio Coal. for the Homeless v. Blachl'ell, 467 F.3d 999,1007-08 (6th Cir. 2006) (citing Linton v. Comm 'r 0.(Heath and Env 't, 973 F.2d 1311, 1319 (6th CiT. 1992), for the proposition that "potential stare decisis effects can be a sufficient basis for finding an impairment of interest").
4. Representation ofthe Department of Justice's Interest The final element required to establish an intervention as of right is that "the parties already before the court cannot adequately protect the proposed intervenor's interest:' Coal. to Defend 4ffirmative Action, 501 F.3d at 779. "[T]he proposed intervenor['s] burden in showing inadequacy is minimal." Grutter v. Bollinger, 188 F.3d 394, 400 (6th CiT. 1999) (internal quotation omitted). In this regard, the proposed intervenor must only demonstrate that the representation of its interests by the existing parties maybe inadequate. Linton, 973 F.2d at 1319. However, when the proposed intervenor and a party to the suit share the same ultimate
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objective, a presumption arises that the representation will be adequate. Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987).
Here, the ultimate objectives of the Department of Justice and Plaintiffs are similar, but not identical. Both seek injunctive relief to end the allegedly unconstitutional practices. Plaintiffs, however, also seek money damages. Infra, the Court finds that Plaintiffs have standing to seek injunctive relief and grants their motion for class certification. While the Plaintiffs' pursuit of injunctive relief on behalf of all the inmates of the FCCCs aligns with the Department of Justice's objectives, the possibility exists that those interests could diverge. For instance, the class has been certified on a provisional basis. If at some point in the future of this litigation the class were decertified, Plaintiffs could find themselves in a position where settling their individual claims for monetary damages would become a priority over obtaining prospective relief. Additionally, the Court has ruled that the individual Plaintiffs have standing to pursue claims for prospective relief, but that determination is based on the allegations contained in the amended complaint and the limited record currently before the Court. As the litigation progresses, the burden will remain on Plaintiffs to demonstrate their continued standing and the possibility remains that they will be unable to do so.
Finally, Plaintiffs and the Department of Justice may have differing views on the exact form that any prospective relief may take. In this regard, the named Plaintiffs are individuals who have actually been incarcerated at the FCCCs and tasered. Their views on what mayor may not be appropriate in terms of relief may differ substantially from the perspective ofthe Department of Justice. For these reasons, the Court finds that the Department of Justice has met its minimal burden of demonstrating that the parties currently before the Court will inadequately represent its interests in this case. Accordingly, the Department of Justice has established that it
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is entitled to intervene as a matter of right, and the Court grants its motion to intervene on that basis.
B. Rule 24(b) Intervention In the alternative, the Court also finds that permissive intervention pursuant to rule 24(b) is appropriate in this case. Rule 24(b) provides that "[0 Jn timely motion, the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question oflaw or fact. FED. R. CIV. P. 24(b)(I). In considering whether permissive intervention should be allowed, "the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." FED. R. CN. P. 24(b)(3). A review of the Court's analysis in Part IV.A, supra, supports the conclusion that permissive intervention should be afforded the Department of Justice under Rule 24(b). As indicated in Part IV.A.I, a balancing of the five factors enumerated in Jansen, indicates that the Department of Justice has timely moved to enter this action. Further, the Department of Justice's claims share nearly identical questions oflaw and fact as those of Plaintiffs. Finally, the Department of Justice's intervention in the case will not unduly delay or prejudice the adjudication ofthe rights of either Defendants or Plaintiffs.
V. Motion for Class Certification and Appointment of Class Counsel The Court now turns to Plaintiffs' motion to certifY class and appoint class counsel, first considering whether Shreve and Worley have standing to seek prospective relief on behalf of themselves and the proposed class.
A. Standing Standing to bring suit is a prerequisite that must be established before the prospective claims of Shreve and Worley can proceed. Absent standing to challenge the alleged
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unconstitutional practices of Defendants on their own behalf, they are precluded from asserting the same claims on behalf of the proposed class. See Holmes v. Pension Pian ofBethlehem Steel Corp., 213 F.3d 124, 135 (3rd Cir. 2000). On November I, 2010, the Court held oral argument on the question of standing to provide the Parties an opportunity to clarity their positions on this key threshold issue. The argument focused on the Supreme Court's decision in City ofLos Angeles v. Lyons, 461 U.S. 95 (1983).
Article III, § 2 ofthe Constitution limits the jurisdiction of the federal courts to actual cases or controversies. See Raines v. Byrd, 521 U.S. 811, 818 (1997). Standing to sue is an element of the case and controversy requirement. !d. Defendants have asserted that because Shreve and Worley have both been released from the FCCCs, they lack standing to bring claims on behalf of themselves and the proposed class. The Sixth Circuit has held, however, that standing is to be determined at the time a lawsuit is filed. Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 524 (6th Cir. 2001). Accordingly, as both Shreve and Worley were incarcerated at the time the complaint was filed in this case, they do not lack standing by virtue of the fact that they have subsequently been released. Nonetheless, the Court's inquiry into standing does not end with this conclusion.
In Lujan v. Defenders of Wildl!fe, 504 U.S. 555 (1992), the Supreme Court summarized three elements comprising the "irreducible constitutional minimum of standing." Id. at 560. The Court stated:
First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not "conjectural" or "hypothetical[.]" Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court," Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
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Id. at 560--61 (internal quotations, citations, and footnotes omitted). Here, Shreve and Worley essentially allege that a practice or custom exists at the FCCCs whereby prisoners are routinely subjected to unconstitutional levels of force through the use oftasers. Ass uming that a cognizable injury exists in this case, the second and third factors are easily met. The conduct complained of is traceable to Defendants who operate the FCCCs and establish the policies and practices governing treatment of the inmates. Additionally, an injunction from this Court requiring Defendants to bring the allegedly illegal practices within the bounds of the Constitution would redress the injury.
As to the claims for prospective relief, whether the Plaintiffs may suffer a future injury presents a much more difficult question. "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects.... Of course, past wrongs are evidence bearing on
whether there is a real and immediate threat of repeated injury." a 'Shea v. Littleton, 414 U.S.
488,495-96 (1974) (holding that plaintiffs lacked standing to seek injunction against allegedly unconstitutional acts of a county judge and magistrate judge where none of the plaintiffs claimed to actually be involved in a case presently before either judge).
Lyons is illustrative of the standing problems faced by litigants alleging possible injury by future illegal conduct. There, the plaintiff filed suit against the City of Los Angeles seeking damages for injuries sustained when police officers used an allegedly illegal chokehold on him and seeking injunctive relief barring the police from using chokehold techniques in the future. Lyons, 461 U.S. at 98-99. At issue in the case was whether the plaintiff had standing to seek the equitable relief. The Court, relying on its earlier decisions in O'Shea and Rizzo v. Goode, 423 U.S. 362, 372 (1976) (holding that plaintiffs lacked standing to seek injunctive relief against
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allegedly unconstitutional police practices where allegations of future injury were "even more
attenuated than those allegations of future injury found insufficient in O'Shea to warrant
invocation of federal jurisdiction"), ruled that the plaintifflacked standing to seek an injunction.
The Court stated:
No extension of O'Shea and Rizzo is necessary to hold that respondent Lyons has failed to demonstrate a case or controversy with the City that would justify the equitable relief sought. Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use ofthe chokeholds by police officers. Count V of the complaint alleged the traffic stop and choking incident five months before. That Lyons may have been illegally choked by the police on October 6, 1976, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part. The additional allegation in the complaint that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short ofthe allegations that would be necessary to establish a case or controversy between these parties.
Lyons, 461 U.S. at 105 (footnote omitted). According to the Court, Lyon's lacked standing
because of "the speculative nature of his claim that he [would] again experience injury as the
result of" the allegedly unconstitutional police practices. Id. at 109. To establish standing:
Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner. Although Count V alleged that the City authorized the use ofthe control holds in situations where deadly force was not threatened, it did not indicate why Lyons might be realistically threatened by police officers who acted within the strictures ofthe City's policy. If, for example, chokeholds were authorized to be used only to counter resistance to an arrest by a suspect, or to thwart an effort to escape, any future threat to Lyons from the City'S policy or from the conduct of police officers would be no more real than the possibility that he would again have an encounter with the police and that either he would illegally resist arrest or detention or the officers would disobey their instructions and again render him unconscious without any provocation.
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Id. at 105-06. Finally, the Court held that standing to bring a claim for damages resulting from past illegal conduct did not necessarily establish standing to seek injunctive relief. See id. at Ill.
The party invoking the jurisdiction of the federal courts has the burden of establishing each of the elements of standing. Lujan, 504 U.S. at 561. As the Supreme Court stated in Lujan:
[s]ince they are not mere pleading requirements but rather an indispensable part of the plaintiffs case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Id. (emphasis in original). '''[S]tanding cannot be inferred [] from averments in the pleadings, but rather must affirmatively appear in the record.'" White v. United States, 601 F.3d 545, 55152 (6th Cir. 2010) (quotingSpencerv. Kemna, 523 U.S. I, 10-11 (1998)). Accordingly, this Court will look to the pleadings and record presently before it to determine if Shreve and Worley have sufficiently alleged or demonstrated an imminent injury in fact. In so doing, the Court concludes that Shreve and Worley have made sufficient allegations, albeit by a slim margin, to confer standing at least at this early stage of the litigation. Plaintiffs' amended complaint alleges that "[i]t is the custom, policy and standard operating practice of Franklin County Sheriffs corrections deputies to repeatedly use their lasers in a callous and sadistic manner ... that violates the Constitutional rights of arrestees and inmates at the Franklin County Corrections Centers." (Am. CompI. ~ 8.) The Amended Complaint also alleges specific examples purporting to illustrate the frequent unconstitutional use oftasers at the FCCCs. According to the Amended Complaint, in "case after case" tasers are used against inmates that are outnumbered by deputies. (Am. Compl. ~ 51.) In other cases, tasers are used against inmates in mechanical restraints. (Am. Compl. ~ 52.) The Amended Complaint further alleges that "[d]eputies also use the taser as a retaliatory weapon when detainees show verbal resistance or question authority by using profanity or making derogatory
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remarks to staff." (Am. Comp\. ~ 54.) Finally, the Amended Complaint alleges that nearly every use of the taser against inmates was found to be 'Justified" by Sheriffs Office officials upon review, (Am. Comp\. ~ 72), and that Shreve and Worley "along with all proposed class members, are at risk of having their constitutional rights violated through Feee deputies' use oftasers." (Am. Comp\. ~ 243(a).)
In addition, the record contains videos depicting several taser incidents, including those of Shreve and Worley. Shreve is tasered while being held down by four deputies with his hands cuffed behind his back. Several other deputies are standing nearby. While sound from the video indicates that Shreve may have been attempting to bite one of the deputies, Plaintiffs are alleging that use of the taser against Shreve in those circumstances, i.e. while physically immobilized, was unnecessary and excessive. Worley is tasered for apparently raising his voice toward a team of deputies who have entered the cell where he is being held and for failing to obey their commands that he remove his clothing. Another video shows a woman being tasered for failing to remove a tongue piercing, despite being adamant that she cannot remove the piercing because it is too slippery. She requests a paper towel to aid her, but, instead of being provided the towel, is tasered. After she is tasered, the deputies provide her with the paper towel, which she uses to successfully remove the piercing.
These allegations and the evidence on the record are sufficient to establish a claim of imminent injury in fact, and thus confer standing at this preliminary stage in the litigation. Worley and Shreve have alleged a custom and policy whereby inmates at the FeCes are routinely subjected to the pain and danger of being tasered in a manner that violates the constitution. According to the allegations, inmates are tasered with little provocation, when outnumbered by deputies, and when they pose no physical threat to the deputies. While the
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Court refrains from inquiring into the merits at this point in the litigation, the video evidence in the record is at least some support of these allegations, rather than mere conclusory accusations.
Lyons is distinguishable from the instant case in that it dealt with the possibility of future interactions between a citizen and police officers, whereas the instant case deals with inmates who presumably come into close contact with their guards on a daily basis. Shreve and Worley allege that they (at least while they remained incarcerated) were at risk of future deprivations of their rights and the record does reflect incidents supporting these allegations wherein inmates are tasered for seemingly innocuous reasons or no reason whatsoever. That inmates, including intoxicated or mentally impaired inmates, could be tasered, even when attempting to comply with commands of the deputies, suggests that any interaction with the deputies could result in an inmate being tasered. Finally, the Court also finds significant the fact that Shreve and Worley were actually tasered. From this showing, the Plaintiffs have presented some evidence upon which to conclude that they may suffer future injury in fact.
In support of its conclusion that Shreve and Worley have established standing to prospectively challenge the policies and procedures of the FCCCs, the Court has identified several cases in which inmates were found to have standing to challenge jailor prison policies that placed them at risk of injury. For instance, in Smith v. Arkansas Department ofCorrection, 103 F.3d 637 (8th Cir. 1996), inmates sought to enjoin a policy of the state corrections department that allowed dozens of inmates to be housed together in large barracks without supervision from prison staff. See id. at 640-41. According to the inmates, one of whom was stabbed during the night by another inmate, the policy placed them at risk of cruel and unusual punishment in the form of inmate on inmate violence. Id. at 640. In holding that one of the inmates had standing to challenge the conditions in the barracks (the inmate who had been
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stabbed had been transferred to another facility prior to the initiation of the suit), the Eighth Circuit found that the conditions that can be present in open barracks, e.g. '"thievery, assaults, and hand-crafted weapons," supported a finding of an imminent injury in fact. See id. at 643-44. The court stated, "[w)e bear in mind ... that an inmate 'does not have to await the consummation of threatened injury to obtain preventive relief.'" Id. at 644 (quoting Farmer v. Brennan, 511 U.S. 825, 845 (1994) (internal quotation omitted)).
In Williams v. Wilkinson, 132 F. Supp. 2d 601 (S.D. Ohio 2001), Judge Marbley held that an inmate had standing to seek an injunction barring future application of prison disciplinary procedures that the inmate claimed violated Due Process requirements. See id. at 605. In so holding, Judge Marbley distinguished that case from Lyons on several grounds, including that "Mr. Lyons's potential for future harm was based on the realization of several incremental steps, each laced with speculation" whereas, in the case before him, "only one step would be necessary to reach the complained of conduct: an allegation by a corrections officer that the Plaintiff violated a prison rule." Id. at 605-06. Judge Marbley explained:
the odds of the Plaintiff coming into contact with a correction officer are much greater than Mr. Lyons coming into contact with a police officer in the city of Los Angeles. By virtue of his confinement, Mr. Williams is in continual contact with correction officers whose job it is to scrutinize closely his behavior for possible rule infractions. Id. at 606. Further grounds for distinguishing Lyons included that: the correction officer would be following procedure when he or she filed a report against Mr. Williams for an alleged violation, while the police officer in Lyons arguably would be committing an unconstitutional act by using physical force against a compliant citizen. As for the next step, a correction officer would have one choice once he or she believed that Mr. Williams had committed a rule infraction: to file a charge against him. Conversely, a police officer who had stopped Mr. Lyons could initiate physical contact in many different ways, or opt not to engage in physical contact but merely ticket the traffic violator.
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Finally, the correction officer would be following [the prison]'s policy when he or she filed a charge against him, in contrast to the police officer in Lyons who would be in violation of city policy when he or she chose to place a nonresisting citizen in a chokehold.
Id.
The Court notes that the question of Worley and Shreve's standing is very close. As stated in Lujan, the burden of establishing standing will remain with them throughout the litigation, and the weight of that burden will increase as the litigation proceeds. The Court also notes that, as a practical matter, the intervention of the Department of]ustice at this point means that claims for prospective relief resting on identical factual circumstances as those of Shreve and Worley will move forward regardless of the status of those individual Plaintiffs.
B. Class Certification Having determined that Shreve and Worley have standing to seek injunctive relief, the Court now considers whether their proposed class should be certified under Rule 23. For the reasons that follow, the Court grants class certification on a provisional basis.
1. Rule 23 A plaintiff has the burden of proving class certification is proper. Beattie v. CenturyTel. Inc., 511 F.3d 554, 560 (6th Cir. 2007); see also In re Am. Med. Sys., 75 F.3d 1069, 1079 (6th Cir. 1996). The four prerequisites of a class action are found in Rule 23(a) and include the following:
(I) the class is so numerous that joinder of all members IS impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.
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FED. R. CIV. P. 23(a). These prerequisites are often referred to as the numerosity, commonality, typicality, and adequacy of representation requirements.
If a plaintiff satisfies the prerequisites of Rule 23(a), she must additionally "show that her suit falls within one of the three types of class actions under [Rule] 23(b)." Beattie, 511 F.3d at 560. Here, Shreve and Worley seek certification under Rule 23(b)(2), which calls for them to establish that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." FED. R. CIV. P. 23(b)(2).
The requirements for class certification are discussed in more detail below. 2. Rigorous Analysis and Avoidance ofthe Merits
In order to determine whether a plaintiff has met the standards of Rule 23, the Court will employ a "rigorous analysis." Gen. Tel. Co. ofSw. v. Falcon, 457 U.S. 147, 161 (1982); see also Beattie, 511 F.3d at 559; Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). This rigorous analysis, though, cannot include a determination of the merits of the case. The Supreme Court has held: "We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (\974); see also Beattie, 511 F.3d at 560. Thus, the Court's rigorous analysis must be limited to the substance and structure of Plaintiffs' claims, rather than an inquiry into the merits. See Beattie, 511 F.3d at 561; Daffin v. Ford Motor Co., 458 F.3d 549, 553 (6th Cir. 2006) (holding that the court should not conduct a preliminary inquiry into the merits; noting that "whether the class members can win on the merits of the issue
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Case: 2:10-cv-00644-EAS-MRA Doc #: 69 Filed: 12/14/10 Page: 19 of 27 PAGEID #: 1593
common to the class is not a factor in detennining whether [the lead plaintiffs] claim is typical").
The Court has broad discretion in deciding whether to certify a class; however, the Court must exercise that discretion within the framework of Rule 23. See Gulf Oil Co. v. Bernard, 452
u.s. 89,100 (1981).
3. Discussion The Court will first discuss issues of class definition and membership followed by an analysis of the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Then, because Plaintiffs Shreve and Worley seek certification under Rule 23(b)(2), it will discuss the requirements of that subsection.
a. Class DefInition & Membership Shreve and Worley propose the following class definition: "[aJII persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriffs Department at the Franklin County Corrections Centers." (Am. Compi. ~240.) "[IJmportant elements of defming a class include: (I) specifying a particular group at a particular time frame and location who were harmed in a particular way; and (2) defining the class such that a court can ascertain its membership in some objective manner." Edwards v. McCormick, 196 F.R.D. 487, 491 (S.D. Ohio 2000) (citing Crosby v. Social Sec. Admin., 796 F.2d 576, 580 (1st Cir. 1986)). These elements are met by the above-proposed definition. Membership in the class will be objectively ascertainable by a review of the records of the FCCCs. Obviously, class membership will fluctuate throughout the course of this litigation. However, that class membership may be transitory is of minimal significance because of the type
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of relief sought. Plaintiffs' objective is to enjoin alleged unconstitutional practices at the FCCCs. Accordingly, the focus of this litigation will be on how the FCCes are run, not necessarily the identity of individual inmates.
Defendants assert that issues of class identification and administration are fatal to class certification. They contend that determining whether individual inmates and Shreve and Worley themselves are members of the proposed class will require individualized determinations to see if those inmates actually have been subjected to excessive force. Defendants' assertions on this point misconstrue the nature of Plaintiffs' prospective class and the nature of the class's claims. Plaintiffs have not alleged that every inmate at the FCCCs has been tasered or subjected to excessive force. Nor have they attempted to certifY a class only of individuals who have been tasered. What they are alleging is that a policy or practice exists whereby inmates are routinely tasered in violation of their constitutional rights. According to them, the practice of using tasers in this manner is so pervasive that all inmates at the FCCCs are at risk of being injured. Accordingly, based on these allegations, the only prerequisite to class membership is incarceration at one of the FCCCs and whether a prospective class member has actually been subjected to excessive force is irrelevant to the consideration of class membership.
b. Requirements of Rule 23(a) i. Numerosity
Rule 23(a)(J) reqUires the class be "so numerous that joinder of all members is impracticable." FED. R. CIY. P. 23(a)(l). There is not a specific number that automatically qualifies a class for certification as "[iJmpracticability ofjoinder is not determined according to a strict numerical test but upon the circumstances surrounding the case:' Senter v. Gen. Motors Corp., 532 F.2d 511, 523 n.24 (6th CiT. 1976) (citing Cash, 434 F.2d at 571). When class size
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reaches substantial proportions, however, the numerosity requirement is usually satisfied by the numbers alone. In re Am. Med. Sys., 75 F.3d 1069, 1079 (6th Cir.1996); see also Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006).
Here, the record indicates that the average daily inmate population at the FCCCs in June 2010 was 1,910. (Herrell Aff. Ex. AI.) Further, since 2005, the monthly daily average number of inmates has never dropped below 1,700 inmates. (See Herrell Aff. Ex. AI.) A class size of nearly 2,000 renders joinder of all members impractical and Shreve and Worley have thus met their burden of establishing numerosity. See, e.g., ~{ro Am. Patrolmen's League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974) (holding that numerosity requirement was satisfied where putative class consisted of no more than thirty-five members). Defendants assert that, because Shreve and Worley have only identified eleven alleged instances where inmates were subjected to excessive force through the use of tasers, joinder of all plaintiffs would be practical. If Shreve and Worley's proposed class consisted only of inmates who have been tasered, this argument would potentially have merit. However, Shreve and Worley have proposed as a class all inmates presently incarcerated at the FCCCs. Based on that definition, the numerosity requirement is easily satisfied.
ii. Commonality Rule 23(a)(2) requires the existence of "questions of law or fact common to the class." FED. R. CIV. P. 23(a)(2). However, the claims of the potential class members need not be factually identical. Bovee v. Coopers & Lybrand, 216 F.R.D. 596, 608 (S.D. Ohio 2003) (citing Putnam v. Davies, 169 F.R.D. 89, 93 (S.D. Ohio 1996)). Furthermore, there need only be one question common to the class. Bovee, 216 F.R.D. at 608 (citing Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998)). The mere fact that questions peculiar to individual class
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members could remain does not necessarily defeat a finding of commonality. Id. (citing Sterling v. Velsicol Chem. Corp., 855 F.2d 1188,1197 (6th Cir. 1988); Bacon v. Honda ofAm. Mfg., Inc., 205 F.R.D. 466, 476 (S.D. Ohio 2001)). On the other hand, "[i]t is not every common question that will suffice [as,] at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality." Sprague v. Gen. Motors Co., 133 F.3d 388, 397 (6th Cir. 1998). However, a finding of commonality is appropriate where there "is a common issue the resolution of which will advance the litigation." Id. Finally, conclusory allegations of commonality are insufficient to satisfY the burden of proof on certification. Bovee, 216 F.R.D. at 608 (citing Falcon, 457 U.S. at 157; Am. Med. Sys., 75 F.3d at 1081). Ultimately, as with the other prerequisites, Plaintiffs have the burden of proving to the Court that "questions of law or fact common to the class" exist.
As with the numerosity requirement, Plaintiffs satisfY the commonality requirement. Questions of fact and law common to all members ofthe class include whether there exists at the FCCCs a pattern or practice of the use of tasers in violation of the constitutional right of inmates to be free from excessive force. If Shreve and Worley are able to establish such a pattern or practice, such showing will advance the claims of all members ofthe class.
iii. Typicality Rule 23(a)(3) requires that the "claims or defenses of the representative parties [be] typical of the claims or defenses of the class." FED. R. Civ. P. 23(a)(3). A plaintiffs claim is typical "if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and ifhis or her claims are based on the same legal theory." Am. Med. Sys., 75 F.3d at 1082 (citing 1 NEWBERG § 3-13, at 3-76). Typicality requires that the "representative's interests [are] aligned with those of the represented group, and in pursuing his
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own claims, the named plaintiff will also advance the interests of the class members." Id. In other words, "as goes the claim of the named plaintiff, so go the claims of the class." Sprague, 133 F.3d at 399. However, the plaintiff satisfYing his or her own claim is not enough. "[T]he typicality requirement is not satisfied when a plaintiff can prove his own claim but not 'necessarily have proved anybody else's claim.'" Beattie, 511 F.3d at 561 (quoting Sprague, 133 F.3d at 399). Finally, similar to the commonality requirement, the named plaintiffs claims do not have to be identical to the claims and defenses of the other members of the putative class, and need not always involve the same facts or law, provided there is a common element of fact or law. Beattie, 511 F.3d at 561 (citing Senter v. Gen. Motors Corp., 532 F.2d 511, 525 n.31 (6th Cir. 1976)); Putnam, 169 F.R.D. at 94.
Shreve and Worley's claim for injunctive relief is typical of the claims of the proposed class. The essence of this claim is that a policy or practice exists at the FCCCs that routinely puts inmates at risk of being subjected to excessive force through the use oftasers. If Shreve and Worley are able to advance or succeed on their claim by establishing that such a practice exists, they will also advance the claim made by the class, which is identical. Because the claims are identical, there is little likelihood that Shreve and Worley could prove their own individual claims for injunctive relief and not necessarily prove those of the other class members.
Defendants allege that because different inmates have different statuses, e.g. as arrestees, pretrial detainees, and convicted prisoners, and that different legal standards apply (Fourth Amendment for arrestees, Eighth Amendment for convicted prisoners, and Fourteenth Amendment for pretrial detainees), the claims of Shreve and Worley cannot be said to be typical of the claims of the entire class. It is true that detennining whether a pattern or practice of constitutional violations exists will require the finder of fact to evaluate whether the use of tasers
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in individual cases is unconstitutional. This inquiry will possibly require the application of different constitutional standards depending on the status of the inmate involved and may require the creation of sub-classes. However, because the class's claim focuses on the policy and practice, resolution of the claim will not involve the finder of fact making determinations as to whether every individual class member was subjected to excessive force.
iv. Adequacy of Representation Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." FED. R. ClV. P. 23(a)(4). The adequacy requirement "serves to uncover conflicts of interest between named parties and the class they seek to represent. A class representative must be part of the class and possess the same interest and suffer the same injury as the class members." Beattie, 511 F.3d at 562 (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997)). The adequacy requirement is essential to due process because the final decision is binding on all class members. See Am. Med. Sys., 75 F.3d at 1083 (citing Hansberry v. Lee, 311 U.S. 32 (1940)). The Sixth Circuit has developed two criteria for determining whether representation is adequate: (i) "[t]he representative must have common interests with unnamed members of the class" (common interests); and (ii) "it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel" (vigorous prosecution). Senter, 532 F.2d at 525. The first requirement overlaps with the commonality and typicality requirements and acts to ensure that the representative has interests co-extensive with, rather than antagonistic to, the interests of the other class members. Day v. NLO, Inc., 144 F.R.D. 330. 335 (S.D. Oh. 1992). A plaintiff may not be an adequate representative if that plaintiff is subject to unique defenses that place him or her in a position that is antagonistic to the interests of the class. See Levels v. Akzo Nobel Salt, Inc., 178 F.R.D. 171, 179 (N.D. Ohio 1998). Here, the Court finds that the interests
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of Shreve and Worley are common to the other members of the class as nothing in the record indicates that Shreve or Worley's positions could somehow become antagonistic to the class.
For a plaintiff to adequately represent a class, it must appear that the plaintiff will vigorously prosecute the case to the benefit of itself and the class members alike. The representative plaintiff must have the financial resources and a sense of personal involvement in the litigation. Day, 144 F.R.D. at 335 (citing WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 1767 (1986». Further, the representative plaintiff's counsel must be able to meet the demands of the litigation. Id. Plaintiff's counsel must be qualified, experienced, and able to conduct the litigation as necessary. Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000). As with the commonality prong, nothing in the record indicates that Shreve and Worley would not adequately represent the interests of the class. To the contrary, through their attorneys, they have thus far vigorously prosecuted this action. Their attorneys have also demonstrated their competence in representing Shreve and Worley's interests, and the interests of the proposed class.
c. Requirements of Rule 23(b)(2) for Certification In addition to establishing each of the requirements of Rule 23(a), before a class can be certified, Plaintiffs must demonstrate that the class action falls within one or more of the types established by Rule 23(b). Here, Plaintiffs assert that their action is brought pursuant to Rule 23(b)(2), which states that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole." FED. R. CIv. P. 23(b)(2). The Court agrees that Shreve and Worley have established an action under Rule 23(b)(2). They allege a policy or practice, created and maintained by Defendants, that affects all of the
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members of the proposed class. Additionally, ifthe injunction sought by Shreve and Worley is granted, it will appropriately benefit all class members.
d. Appointment of Class Counsel Pursuant to Rule 23(g), the Court appoints counsel for Plaintiffs as class counsel in this matter. As already stated in Section V.B.3.b.iv., supra, counsel for Plaintiffs have thus far shown competence and vigor in representing the interests of the proposed class. Furthermore, the Ohio Legal Rights Service, the employing agency of Plaintiffs' counsel, has been involved in numerous class actions and attorneys for the Ohio Legal Rights Service have significant experience in complex litigation and class action litigation. Finally, the Court finds that counsel for Plaintiffs have effectively investigated potential claims in this action, and have demonstrated that they will commit the necessary resources to representing the class.
e. Provisional Basis of Class Certification The Court's grant of class certification is done on a provisional basis based on the limited record presently before it. As noted in Part V.A., supra, the burden will remain on Shreve and Worley to establish standing to seek injunctive relief as the litigation progresses. In the Court's view, the potential deficiencies in maintaining standing applicable to the class representatives are equally applicable to every member of the class.
VI. Conclusion For the foregoing reasons, the Court GRANTS Plaintiffs' Motion for Class Certification and Appointment of Class Counsel (4); Interested Party the United States of America's Motion to Intervene (Doc. 45); the Motion of the National Fraternal Order of Police to File an Amicus Briefon BehalfofDefendants (Doc. 62.); and Plaintiffs' Motion for Leave to File Second Amended Complaint (Doc. 66). Plaintiffs' Motion to Compel Inspection (Doc. 14) is hereby
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DISMISSED. The Clerk shall add the United States as a full party, Plaintiff-Intervenor to this action and enter the United States' Complaint in Intervention on the docket. The National Fraternal Order of Police may appear in this action as an amicus curiae and file a brief and other memoranda oflaw on behalf of Defendants. A class consisting of "all persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriffs Department at the Franklin County Corrections Centers" is hereby certified on a provisional basis and counsel for Plaintiffs are appointed class counsel to represent the class.
IT IS SO ORDERED.

Il- II..{-,).DID
DATED

ED~ARGUS' JR.
UNITED STATES DISTRICT JUDGE

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 Case: 2:10-cv-00644-EAS-MRA Doc#: 1 Filed: 07/16/10 Page: 1 of 42 PAGEID #: 1

UNITED STATES DISTRICf COURT SOUTHERN DISTRICT OF OIDO EASTERN DIVISION

ROBERT SHREVE, Individually and on behalfofall others similarly situated,

Case No. 2:10-cv-644

MICHAEL REED, Individually DAWN FIORE-BRUNO, Individually Plaintiffs,

Judge: Magistrate Judge:

Individual Complaints For Damages -vs-
and

FRANKLIN COUNTY, OIDO

Class Action Complaint for Declaratory and Injunctive Relief

JIM KARNES, SHERIFF FRANKLIN COUNTY OHIO In his official capacity,

Jury Demand Endorsed Hereon

MARK BARRETT, FRANKLIN COUNTY SHERIFF'S OFFICE CHIEF DEPUTY, CORRECTIONS, Individually and in his official capacity,

STEPHAN L. MARTIN, FRANKLIN COUNTY SHERIFF'S OFFICE CHIEF DEPUTY, INVESTIGATIONS, Individually and in his official capacity,

JOHN I JANE DOE(S), FRANKLIN COUNTY DEPUTIES OF THE INTERNAL AFFAIRS BUREAU WHO REVIEWED AND INVESTIGATED USE OF FORCE REPORTS INVOLVING DEPLOYMENT OF TASERS AT FCCC I AND FCCC II FROM JULY 16, 2008 TO PRESENT Individually and in their official capacities,

JOHN I JANE ROE(S), FACILITY COMMANDER(S) FRANKLIN COUNTY CORRECTIONS CENTER I (FCCC I)

Case: 2:10-cv-00644-EAS-MRA Doc#: 1 Filed: 07/16/10 Page: 2 of 42 PAGEID #: 2
FROM JULY 16, 2008 TO PRESENT Individually and in their official capacities,
MAJOR MICHAEL HERRELL, FORMER FACILITY COMMANDER, FRANKLIN COUNTY CORRECTIONS CENTER II (FCCC II), Individually and in his official capacity,
MAJOR DOUG EDGINGTON, PRESENT FACILITY COMMANDER, FRANKLIN COUNTY CORRECTIONS CENTER II, Individually and in his official capacity,
FRANKLIN COUNTY SHERIFF'S DEPUTIES:
JAMES DISHONG, CPL. SAMUEL BYRD, CHRIS LEONARD, JAMES JODREY, SAM MONTROSE, CLAYTON KERN, CHRISTOPHER STARNER,
SHANNON BEAUDRY, SGT. STEVEN DEAN, ELIZABETH KLEIN, DEREK SHIVELY, JASON BROBST, LEE VANDETTE,
CPL. DEBRA CANTRELL, JONATHAN ROUSH, NICHOLAS WILLIAMS, NATHAN COLEMAN, ANDREW GILES, MARK EAGAN, MANLEY MORGAN, DOUGLAS ROBINSON,
CHRISTOPHER LEE, Individually and in their official capacities,
Defendants.

Case: 2:10-cv-00644-EAS-MRA Doc#: 1 Filed: 07/16/10 Page: 3 of 42 PAGEID #: 3
I. INTRODUCTION 1. Each paragraph in this CompJaint incorporates all others. 2. This case challenges a pervasive practice of subjecting arrestees and inmates at the
Franklin County Corrections Centers to the excessive and disproportionate use of force by corrections deputies ofthe Franklin County Sheriff's Office.
3. The challenged practice is carried out through the frequent and gratuitous use of tasers to inflict pain, fear, corporal punishment and humiliation.
4. Tasers deliver a minimum 5-second 50,000 volt electrical shock that causes excruciating pain. Landis v. Baker, 2008 U.S. App. LEXIS 21946, at *6 n.4 (6th Cir. 2008). Deputies are able to deliver more than 5 seconds of electricity simply by continuing to press the taser's trigger. As long as the trigger is depressed, the electrical shock continues.
5. Tasers operate in two different modes. The primary use is to subdue a person at a safe distance by firing two darts or probes that strike and attach to the person. Thereafter, an electrical discharge produces temporary neuromuscular incapacitation (NMI) which instantaneously and completely immobilizes the person. "A stun gun inflicts a painful and frightening blow, which temporarily paralyzes the large muscles ofthe body, rendering the victim helpless." Kijowski v. City ofNiles, 2010 U.S. App. LEXIS 7222, at *16 (6th Cir. 2010).
6. Tasers can also be used in "drive stun" mode. According to the Taser International Website Manual, drive stun mode is the ''pain compliance option." As the Taser Manual describes it: "Drive-stun Taser use produces a continuous extremely painful electrical shock useful for an officer engaged in close hand to hand contact with a resisting subject; pain forces the resisting subject to stop violently resisting and submit to handcuffmg...."
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7. Franklin County Sheriff's deputies are aware ofhow painful it is to be tased. Near the end of a video tape of the tasing of a female arrestee during booking at Franklin County Corrections Center I, a Franklin County deputy asks a police officer from The Ohio State University (OSU) campus ifhe has ever been tased. When the officer responded no, the sheriff's deputy replied, "They hurt like hell." Internal Mfairs Report #08-116.
8. It is the custom, policy and standard operating practice ofFranklin County Sheriff's corrections deputies to repeatedly use their tasers in a callous and sadistic manner that violates the Franklin County Sheriff's own written policy for deployment oftasers; departs from wellestablished standards oflaw enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of arrestees and inmates; has caused needless physical harm and mental distress; and violates the Constitutional rights of arrestees and inmates at the Franklin County Corrections Centers. II. JURISDICTION AND VENUE
9. This court has subject matter jurisdiction over Plaintiffs' Complaint pursuant to 28 U.S.C. §§ 1331, 1343(3) and 1343(4). Venue is proper in this district under 28 U.S.C. § 1391 because all parties reside in this district and the events or omissions giving rise to Plaintiffs' Complaint occurred in this district III. PARTIES
10. PI aintiff Robert Shreve was at all times relevant to this action a resident of Franklin
County, Ohio. 11. PlaintiffShreve is incarcerated at the Franklin County Corrections Center II (FCCC
II) at the time of filing this Complaint. 12. Plaintiff Michael Reed was at all times relevant to this action a resident of Franklin
County, Ohio.
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13. Plaintiff Reed is not incarcerated at the time of filing this Complaint. 14. Plaintiff Dawn Fiore-Bruno was at all times relevant to this action a resident of Franklin County, Ohio. 15. PlaintiffFiore-Bruno is not incarcerated at the time offiling this Complaint. 16. Defendant Franklin County is a unit oflocal government organized under the laws of the State of Ohio. 17. Defendant Jim Karnes was at all times relevant to this action the Sheriffof Franklin County, Ohio. He is sued in his official capacity. 18. Defendant Mark Barrett was at all times relevant to this action the Chief Deputy, Corrections for the Franklin County Sheriffs Office. 19. Defendant Barrett is the deputy in charge ofthe operations ofFranklin County's two correctional facilities, Franklin County Corrections Center I at 370 S. Front Street in Columbus, Ohio and Franklin County Corrections Center II at 2460 Jackson Pike in Columbus, Ohio. 20. Defendant Barrett reviews and approves all use of force reports from all Franklin County corrections deputies, including use of force reports involving deployment of tasers. He is sued in his individual and official capacities. 21. Defendant Stephan L. Martin was at all times relevant to this action the Chief Deputy, Investigations for the Franklin County Sheriffs Office. 22. As Chiefoflnvestigations, Defendant Martin is the head ofthe Internal Affairs Bureau ofthe Franklin County Sheriff's Office. The Internal Affairs Bureau is responsible for the investigation of alleged misconduct by members of the Franklin County Sheriffs Office.
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23. Defendant Martin's Bureau reviews all use of force reports from Franklin County corrections deputies, including use of force reports involving deployment oftasers. Defendant Martin is sued in his individual and official capacities.
24. Defendants John I Jane Does were the members of the Franklin County Sheriff's Office Internal Affairs Bureau at all times relevant to this action.
25. As members of the Internal Affairs Bureau, Defendants John/ Jane Doe reviewed all use of force reports from Franklin County corrections deputies who worked at FCCC I and FCCC II, including use of force reports involving deployment oftasers. Defendants John I Jane Doe are sued in their individual and official capacities.
26. The names ofthese John I Jane Doe Defendants can be readily ascertained in discovery and Plaintiffs can file an amended complaint immediately upon identification ofthese Defendants.
27. Defendants John I Jane Roes were the facility commanders for FCCC I at all times relevant to this action.
28. As FCCC I facility commanders, Defendants John/Jane Roe reviewed all use of force reports from Franklin County corrections deputies who worked at FCCC I, including use of force reports involving deployment oftasers. Defendants John I Jane Roe are sued in their individual and official capacities.
29. The names ofthese John I Jane Roe Defendants can be readily ascertained in discovery and Plaintiffs can file an amended complaint immediately upon identification ofthese Defendants.
30. Defendants Michael Herrell and Doug Edgington were the facility commanders for FCCC II during times relevant to this action.
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31. As FCCC ll facility commanders, Defendants Herrell and Edgington reviewed all use of force reports from Franklin County corrections deputies who worked at FCCC ll, including use of force reports involving deployment oftasers. Defendants Herrell and Edgington are sued in their individual and official capacities.
32. Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee were active participants in the tasing of Plaintiff Robert Shreve. These Defendants are sued in their individual capacities.
33. Defendants Dishong, Carter, Byrd, Leonard, Jodrey, Montrose, Kern, and Starner were active participants in the tasing of Plaintiff Michael Reed. These Defendants are sued in their individual capacities.
34. Defendants Dean, Beaudry, Klein, Shively, Brobst and Vandette were active participants in the tasing ofPlaintiffDawn Fiore-Bruno. These Defendants are sued in their individual capacities. IV. POLICY AND PRACTICE OF EXCESSIVE USE OF TASERS BY DEFENDANTS
35. Under Ohio law, SheriffKames makes the policy for the county with regard to the operation of his office and discharge of his duties.
36. According to the Franklin County Sheriff's Office policy, the Chief Deputy of Corrections, Defendant Barrett, assigns X26 Tasers to corrections officers at his discretion. AR800:2, Section 2.1.
37. According to this s arne policy, tasers are to be deployed ''to gain control of a violent or dangerous inmate...when attempts to subdue the inmate by conventional tactics have been or are likely to be ineffective or there is reasonable expectation that it will be unsafe for deputies to approach within contact range ofthe inmate." AR800:2, Section 1.3.
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38. This policy permits taser deployment in the following circumstances: self-defense; protection of another inmate or staff; disarming an inmate under non-lethal conditions; preventing self-harm to an inmate; or controlling a combative inmate. AR800:2, Sections 1.3.1 1.3.5.
39. According to policy, tasers should not be deployed upon persons who are restrained by a mechanical device such as handcuffs, leg irons or a restraint chair. AR800:2, Section 3.1.14
40. Further, the policy provides that the taser is not recommended for use on women
known to be pregnant. AR800:2, Section 5.5 states that corrections officers should not use tasers
to "harass, taunt, interrogate, interview, threaten, or belittle any persons," AR800:2, Section 5.3. 41. Under the policy, every time a deputy uses a taser he or she must generate a Use of
Force Report which is forwarded through the chain of command. AR800:2, Section 4.5. 42. The Franklin County Sheriff's Office Use of Force policy states that each shift
supervisor must compile a summary of each use offorce report and forward this to Internal Affairs. AR801, Section 2.3.
43. Internal Affairs must then review all use offorce reports, interview all persons with knowledge of the event, and make a determination of whether or not the use of force was in compliance with department policy, that is, whether the use of force was "justified." AR801, Sections 2.5- 2.6. On information and belief, the Internal Affairs review also includes video tapes of each use of force incident, including tapes made by hand-held cameras operated by deputies.
44. Internal Affairs then forwards this record and its use of force determination to the Franklin County Sheriffor his designee for review of the entire record The Sheriff or his designee may either accept or reject the finding of Internal Affairs. AR801, Sections 2.7- 2.8.
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If the use of force is ultimately determined to be "justified," no discipline is imposed on the deputy or deputies involved.
45. Thus, the chain of command for reviewing all reports involving use oftasers by Franklin County Sheriff's deputies includes shift supervisors, the Internal Affairs Bureau and the Sheriff or his designee. The Franklin County Sheriffor his designee makes the final determination ofwhether the use of tasers, or any other use of force, was justified.
46. Franklin County corrections deputies routinely violate the Sheriff's Office policy on deployment oftasers. These practices are captured in the written use offorce reports and on videotapes recorded by the Franklin County Sheriff's Office in scores of cases since at least January 1, 2008.
47. Franklin County corrections deputies regularly use tasers in situations where the person does not remotely present a threat ofviolent behavior or harm to self or others, and routinely and deliberately use tasers as first strike weapons without employing or even considering less painful or harmful control tactics.
48. In case after case, deputies tase people, often in the drive stun mode to cause pain, when the person was greatly outnumbered by a team of deputies who were easily able to physically overpower and control the individual, or accomplish the task at hand, thereby eliminating any objective threat to the person's own safety or that ofthe deputies.
49. In a number of instances, corrections deputies tased arrestees or inmates while they were in mechanical restraints. In one case, an inmate was even tased in drive stun mode while fully immobilized in a four point restraint chair. The use of force in this instance was found "justified." Internal Affairs Report #09-360.
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50. It is common for deputies to tase a person whose only offense was failure to obey deputies' verbal commands, which is classified as a "minor rule violation" that does not pose a threat to staff or inmates under the Sheriffs own administrative regulation.1 Thus, the threshold for use ofthe taser is often only a minor breach ofjail discipline.
51. Deputies also use the taser as a retaliatory weapon when detainees show verbal resistance or question authority by using profanity or making derogatory remarks to staff, despite that fact that this too is considered only a "minor rule violation'' under Sheriff's Office policy.2
52. Comparisons ofthe videotapes to the deputies' written use of force reports also show that deputies often embellish or misrepresent the circumstances under which people were tased. The written reports describe the persons they tased as "combative," ''unruly" or "resisting" when the actual video showed that the person was yelling and/or cursing at deputies in a manner that was irritating, but not a physical threat
53. In other instances, the "resistance" was passive, not combative or active, in nature, such as a person refusing to place hands behind the back, failing or refusing to remove a piece of jewelry or clothing, or a person who crossed his or her arms across the chest in self-protection against a forced cuffing or stripping.
54. For example, deputies tased a woman, who previously told them she was pregnant, for being unable to remove her tongue ring because her hands were too slippery. Deputies tased her after they refused her repeated requests to use a paper towel to remove the tongue ring. After tasing her the deputies finally gave her a paper towel which enabled her to remove the tongue
1 Under AR 804 5.1. "Minor rule violations shall include....failure to comply with an order by staff." 2 Under AR 804 5.2 minor rule violations include "profanity, derogatory remarks or gestures to any member ofthe staff...."
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ring without difficulty. The tasing of this woman was found to be a ')ustified" use offorce. Internal Affairs Report #09-399.
55. In many other instances, deputies ta.sed persons for being ''uncooperative." These individuals were not violent or threatening violence. They were simply so impaired by alcohol or drugs that they were incapable ofcomprehending or complying with the deputies' commands, as shown in a video that depicts a young male arrested on a misdemeanor charge who is clearly cognitively impaired by drugs or alcohol. In the video ofthis case, the corporal in charge told the man "I don't know what you're on."
56. Several deputies had taken this man to a cell in order to change him from his street clothes into jail clothes. The corporal, who had a taser, informed the other deputies that "he hasn't been a threat to us but ifl say 'taser' move out ofthe way."
57. The video shows that the young man complied with the corporal's commands to remove his ring, shirt, shoes and pants but did so slowly, with deputies needing to assist at times. The man had removed all clothing but his underwear when the corporal ordered him to sit down on a bench. The man remained standing after several commands to sit down. The corporal then ta.sed him multiple times, including drive stuns, and pistol whipped him with the taser. The deputy's use ofthe taser in this case was found "justified." Internal Affairs Report #09-258.
58. Corrections deputies routinely and deliberately use tasers in drive stun mode as a form of corporal punishment forb ehavior that does not remotely involve violent resistance by a subject, or constitute a physical or security threat.
59. One example of this is captured in the video ofa man arrested for a misdemeanor. He was handcuffed behind his back and was not acting out in a threatening manner. Sgt. Mychal Turner tased this man twice with probes because he got up from a bench and began to walk
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around in the booking area while another deputy watched over him. The man was kneeling on the floor, incapacitated by the earlier tasings, when the Sergeant then drive stunned him twice because the man did not immediately obey further commands to get up from the floor and sit down on the bench. The tasing of this man was reviewed and found to be "justified." Internal Affairs Report #1 0-009.
60. Corrections deputies also routinely and deliberately tase people who are particularly vulnerable because ofphysical and mental disabilities. Deputies often respond inappropriately to such persons in a manner that escalates conflict and actually increases the likelihood that excessive force will be used.
61. One video depicts deputies who came to the cell of an inmate with mental illness to move him to another location. When deputies opened the cell door the inmate was holding a mat in front ofhim and speaking unintelligibly. The inmate's actions and demeanor show that he was disoriented. Sgt. Turner tased this inmate for not standing up and tased him again for moving his arms and legs, stating "I'm tired of playing with you." Turner continued to tase this mentally impaired inmate when he tried to crawl under the bed. The inmate was finally pulled out of the cell, still clutching the mat. He was put in leg irons and tased again when he would not let go of the mat. The use of force in this instance was found "justified." Internal Affairs Report #09-018.
62. In another video, deputies came to a cell ostensibly to assist a mentally ill inmate who was banging his head against his bed. Instead of entering the cell to remove the inmate, a team of deputies stood around outside the cell while a sergeant repeatedly tased this inmate a total of fourteen times because he would not slide out of the cell by himself. This use offorce was found to be "justified." Internal Affairs Report #09-390.
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63. Corrections deputies also routinely and deliberately deploy tasers for pain and subjugation during the forced stripping of arrestees who should not be subjected to such a humiliating practice.
64. Often, when an arrestee voices a verbal objection to having to remove his or her clothes, or otherwise shows any lack of cooperation during the booking process, such as failing to answer routine medical questions from a nurse, a team of deputies takes the person into a side tank, forcibly strips the individual without telling the person why they are being "dressed out," and tases the person ifthere is any degree ofresistance, including passive or verbal resistance, to being stripped.
65. For example, one video shows a twenty one year old woman, brought in for driving without an operator's license, a misdemeanor, who was stripped and tased four times. During booking, she verbally expressed her displeasure at being arrested but was not aggressive or threatening. The deputies grabbed her already injured arm and she complained they were hurting her. When she voiced these complaints, deputies whisked her into a "side tank" where deputies pushed her face first into a wall and then forced her to the floor, face down.
66. Although deputies described this young woman as "violently" resisting, at least four deputies controlled her arms, trunk and legs and she could only squirm. With two male deputies present, and another male deputy filming with a hand-held camera, the team ofdeputies forcibly stripped her while she constantly asked ''what are you doing to me?" She was left lying naked, face down on the floor ofher cell. Deputies left only a safety gown for her to wear, despite the
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fact that she presented no objective risk ofselfharm.3 This use of force was also found "justified." Internal Affairs Report #09-147.
67. In another case, the Ohio State Patrol brought a Hispanic man to the jail on traffic charges. He was also suspected of possibly being a deportable felon wanted by the United States Immigration and Naturalization SeiVice (INS), which turned out to be a case ofmistaken identity. The video shows that deputies booked this man and then took him into a side tank where he was ordered to strip.
68. Deputies ordered the man to pull his underwear down, tum around, bend over and "spread your ass cheeks." The man refused to comply with this humiliating request. Sgt. Turner again ordered the man to bend over and spread his cheeks so that he could be checked for "contraband~' even though these deputies had no reason to suspect that the man possessed drugs and he had already had a pat-down search and clothing search. He again refused and Turner then tased him. The intense pain led the man to obey Turner's command Afterwards, he asked Turner ''why you mess with me like that?" In response to the man's question, Turner replied in a loud voice, "This is jail." Turner's use ofthe taser in this case was reviewed and found to be "justified." Internal Affairs Report #08-272.
69. SheriffKarnes, as the policy maker for the Franklin County Sheriff's Office, as well as Deputy Chiefs Barrett and Martin, members ofthe Internal Mfairs Bureau and the facility commanders ofthe Franklin County Corrections Centers are responsible for the policy and practice of excessive and abusive use oftasers by Franklin County Sheriffs corrections officers. This is because, as set out in this Complaint:
3 The safety or suicide gown is a shapeless green gown that is supposed to be used for arrestees or inmates who are threatening self-harm. When a person is placed in a safety gown he or she is not even allowed to wear underwear.
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a} They routinely ratify corrections deputies• misuse oftasers by reviewing the use of force reports and videotapes and finding the use of tasers to be ''justified."
b) They fail to discipline deputies whose use oftasers violates the Franklin County Sheriff's own written policy fur deployment oftasers; departs from well-established standards oflaw enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies' repeated misuse oftasers as set forth in this Complaint, they have failed to properly train corrections deputies to use tasers in accordance with the Franklin County Sheriff's Office written policy; to use tasers in accordance with manufacturer's warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal Constitutional rights of persons in custody to be free from excessive force. 70. The policies and practices ofDefendants Sheriff Kames, Chief Deputies Barrett and Martin, John/Jane Does, John/Jane Roes, Herrell and Edgington in their official and individual capacities constitute deliberate indifference that in tum makes Defendant Franklin County accountable for injuries to the Plaintiffs in this action. 71. Along with those cases discussed above, the facts in the cases ofnamed Plaintiffs Robert Shreve, Michael Reed, and Dawn Fiore-Bruno exemplify the policy and practice of abusive and excessive use oftasers by Franklin County Corrections deputies.
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V. PLAINTIFF ROBERT SHREVE- STATEMENT OF FACTS 72. Plaintiff Shreve is deaf. He was brought to FCCC I on a misdemeanor charge,
domestic violence, at a few minutes after midnight on July 19, 2009.
73. The video of his case shows that he arrived in the back ofa Columbus Police
Department wagon. He was handcuffed behind his back and his legs were restrained by a hobble strap because, according to Columbus police, he was a ''fighter."
74. A team of at least six sheriff's deputies and Cpl. Debra Cantrell assembled at the police wagon to take Mr. Shreve from police custody and into the jail booking area.
75. Cpl. Cantrell had her taser out before Mr. Shreve was even lifted from the police
wagon. 76. A Columbus police officer told Cpl. Cantrell and the other deputies that Mr. Shreve
was deaf and could not speak English.
77. Mr. Shreve was removed from the police wagon without incident and was held by
deputies. He went limp and was carried into the jail booking area by three deputies. 78. Once inside the booking area, Mr. Shreve was placed face down on the floor and
held there by a team ofdeputies.
79. Deputy Jonathan Roush had Mr. Shreve's left arm; Deputy Douglas Robinson had
his right arm; and Deputy Christopher Lee had his legs. Cpl. Cantrell stood by with her taser out.
80. Mr. Shreve is not a big man. He is 5 feet, 7 inches tall and weighs 165 pounds.
81. The Deputies' reports state that Mr. Shreve was "attempting to kick and move about on the floor struggling with staff." In her report, Cpl. Cantrell stated that Mr. Shreve "continued
to struggle and thrash about" and was "combative." She also stated that Mr. Shreve was trying
to bite one ofthe deputies.
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82. These descriptions do not accurately reflect the actual video tape ofMr. Shreve's booking.
83. The video shows that it would have been physically impossible for him to bite anyone because he was handcuffed behind his back and pinned, face down on the floor, by three deputies. Deputies Roush and Robinson were on his right and left upper body and Deputy Lee held Mr. Shreve's legs down.
84. Although he did move his legs to one side he was not kicking. His legs were hobbled and restrained by the deputies. It was not physically possible for him to ''thrash about"
or be "combative" with three deputies on top ofhim.
85. A fourth deputy, Nicholas Williams, also stepped in and, with both hands, pressed Mr. Shreve's face into the floor in a head lock. In total, he was handcuffed behind the back, in leg irons and held down by four deputies. Their intended task was to exchange handcuffs and return the original set ofcuffs to the Columbus police officers.
86. While all four deputies immobilized Mr. Shreve face down, Cpl. Cantrell stepped in and tased Mr. Shreve's leg in drive stun mode. He gave a guttural cry ofpain. Cpl. Cantrell then asked the deputies, "Did that soften him up?"
87. After the deputies exchanged the handcuffS, Cpl. Cantrell then leaned over Mr. Shreve and told him to "relax, relax," as if he could hear her instructions. She later remarked, "He's freakin' because he can't hear."
88. Mr. Shreve was then taken to a side tank where his clothes were removed and he was placed in jail clothing without further incident
89. Cpl. Cantrell's use of the taser in drive stun mode to "soften up" Mr. Shreve was deemed to be a "justified" use offorce.
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VI. ROBERT SHREVE INDIVIDUAL CAUSE OF ACTION- 42 U.S.C. § 1983 AS TO DEFENDANTS CANTRELL, ROUSH, WILLIAMS, COLEMAN, GILES, EAGAN, MORGAN, ROBINSON AND LEE
90. At all times relevant to this Complaint, Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee were state actors by virtue of their employment with the Franklin County Sheriff's Office.
91. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
92. As an arrestee, PlaintiffShreve was protected by the Fourth Amendment's protection against use of excessive force by law enforcement.
93. Under the Fourth Amendment, law enforcement officers may only use reasonable force, that is, the amount of force that is reasonable to protect officers from a perceived threat.
94. The use of the taser in drive stun mode against Plaintiff Shreve by Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee was a willful, callous and gratuitous act that violated Plaintiff Shreve's Fourth Amendment right to be free from the use of excessive force.
95. The fact that Defendants Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee were not the officers who tased Mr. Shreve does not diminish their culpability. These deputies were present, were active participants who subdued Mr. Shreve, were aware that Deputy Cantrell was going to tase Mr. Shreve as he lay in their grasp, and had the opportunity to stop it from occurring.
96. As a direct and proximate result ofthe excessive use of force by Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee, PlaintiffShreve suffered compensable physical pain and injuries as well as emotional distress.
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97. Plaintiff Shreve is also entitled to punitive damages because Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee acted with reckless or callous indifference to Plaintiff's Fourth Amendment right to protection against the use of excessive force. VII. ROBERT SHREVE INDIVIDUAL CAUSE OF ACTION- 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, JANE/JOHN DOES, .JANE/JOHN ROES, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
98. Defendants SheriffKames, Chief Deputies Barrett and Martin, Deputies Jane/John Does, Deputies Jane/John Roes, and Majors Herrell and Edgington are all state actors by virtue of their employment with the Franklin County Sheriff's Office.
99. Defendants Sheriff Kames, Chief Deputies Barrett, Martin, Jane/John Does, Jane/John Roes, Herrell and Edgington have created a policy and practice ofexcessive and abusive use of tasers by Franklin County Sheriff's corrections officers because:
a) They routinely ratify corrections deputies' misuse oftasers by reviewing the use of force reports and videotapes and finding the use of tasers to be "justified, as they did in Plaintiff Shreve's case.
b) As in Plaintiff Shreve's case, they fail to discipline deputies whose use oftasers violates the Franklin County Sheriff's own written policy for deployment oftasers; departs from well-established standards oflaw enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity ofthe persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights ofpersons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies' repeated misuse of tasers as set forth in this Complaint, Defendants SheriffKames, ChiefDeputies Barrett, Martin, Jane/John Does,
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Jane/John Roes, Herrell and Edgington have failed to properly train corrections deputies to use tasers in accordance with Sheriffs Office written policy; to use tasers in accordance with manufacturer's warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free ofexcessive force. 100. The policies and practices of Defendants Sheriff Kames, Chief Deputies Barrett, Martin, Jane/John Does, Jane/John Roes, Herrell and Edgington in their official and individual capacities constitutes deliberate indifference that in tum makes Defendant Franklin County accountable for injuries to Plaintiff Shreve. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245 1246, 1248 (6th Cir. 1989). 101. Defendants Franklin County, SheriffKames, ChiefDeputies Barrett, Martin, Jane/Jolm Does, Jane/John Roes, Herrell and Edgington acted with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiff Shreve while acting under color of state law. 102. These actions and failures to act by these Defendants caused PlaintiffShreve to be subjected to excessive and unreasonable force in violation ofthe Fourth Amendment, from which he suffered compensable physical pain and injuries as well as emotional distress. 103. Plaintiff Shreve is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff's Fourth Amendment right to protection against the use of excessive force. VIII. PLAINTIFF MICHAEL REED~ STATEMENT OF FACTS 104. In the early 1990's, Plaintiff Reed had a motorcycle accident that left him in a coma and caused a traumatic brain injury. Since this accident he has experienced seizure episodes.
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105. Mr. Reed has been diagnosed with both tonic clonic seizures (stiffening and rigidity ofmuscles followed by rhythmic jerking motions) and complex partial seizures (the person appears to be staring blankly and loses contact with his surroundings, often followed by chewing movements, mumbling and unorganized movements).
106. Like many persons who have seizures, he usually does not remember having the seizure and becomes confused, disoriented, fatigued and sometimes combative after a seizure.
107. On August 10, 2008 Mr. Reed was walking near the comer ofHamilton Road and Broad Street in Columbus, Ohio when he had a seizure.
108. Emergency Medical Technicians (EMTs) from the Columbus Fire Department responded. According to their reports, Mr. Reed was lying on his stomach when they arrived, rambling and not making sense. When they tried to take him to the hospital, they said he became "aggressive and assaultive."
109. Instead ofthe hospital, Mr. Reed ended up in jail on a charge of assaulting a peace officer, one of the EMTs.
110. Mr. Reed had no memory of the incident. He woke up in jail, wearing a suicide gown. When told he was in jail for assault, he asked who he assaulted.
111. Mr. Reed was incarcerated in the Franklin County Corrections Center II awaiting trial on the assault charge.
112. On December 23, 2008, Judge Michael Holbrook ofthe Franklin County Common Pleas Court found Mr. Reed not guilty by reason of insanity (NGRI) on the assault charge.
113. The NGRI finding was based on an evaluation by forensic psychologist Pamela Chapman which concluded that, because of his brain injury and seizure disorder, he was neither
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able to appreciate the wrongfulness of his conduct at the time of the offense nor able to control his disorganized thinking and behavior.
114. Judge Holbrook ordered Mr. Reed to be committed to the Twin Valley Behavioral Healthcare Forensic Unit.
115. However, Twin Valley did not have an open bed. Thus, Mr. Reed had to stay in the Franklin County Corrections Center II until a bed became available at Twin Valley.
116. On January 29, 2009 Mr. Reed had a seizure in his cell at FCCC II. 117. A team of deputies - Cpl Sam Byrd, Deputy Sam Montrose, Deputy James Jodrey, Deputy Clayton Kern and Deputy Chris Stamer- entered his cell at about 4:00pm to "take him to medical" to receive medical attention. 118. These deputies were aware that Mr. Reed had just had a seizure. 119. Mr. Reed was on the floor of his cell when the deputies entered Upon entering, they gave rapid commands to Mr. Reed to put his hands behind his back so they could put handcuffs on him and take him to medical. 120. The deputies' use of force reports indicate that Mr. Reed became "combative" when they tried to handcuff him. The video ofthis incident, however, does not support their description ofMr. Reed. 121. The video shows Mr. Reed as being dazed, confused and unable to process the deputies' commands in the aftermath of his seizure. 122. Mr. Reed did not put his hands behind his back as commanded, but he did not actively resist the deputies. He put his hands up in a defensive posture. His hands were shaking. 123. When two deputies grabbed Mr. Reed's left arm to put it behind his back for cuffing, Mr. Reed rolled over on his stomach and said, "oh, oh."
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124. Cpl. Byrd pointed the taseratMr. Reed's chest Byrd told Mr. Reed he would be tased ifhe didn't put his left hand behind his back and warned "It's gonna hurt a lot." "It's gonna fucking hurt bad."
125. The video shows that Mr. Reed was still confused and not comprehending what the deputies wanted him to do.
126. The deputies again grabbed Mr. Reed to place his hands behind his back. When he attempted to roll away from them, Cpl. Byrd tased him. Mr. Reed cried out in pain and put his hands up in a defensive posture saying, "please, please, please."
127. Cpl. Byrd again tased Mr. Reed, this time in drive stun mode, because he was not putting his hands behind his back. At one point, a deputy said "Reed, hey, wake up," indicating that Mr. Reed still was not fully aware.
128. After being tased a second time, Mr. Reed submitted. He was cuffed behind the back, leg ironed and pulled to his feet. The video shows that as the deputies took him out ofhis cell, Mr. Reed asked several times "What did I do?"
129. Mr. Reed suffered a cut on his head from this incident. It is unclear from the deputies' reports whether the cut was the result of falling during the seizure or the deputies' efforts to cuff him.
130. After a seizure, a person is often fatigued, dazed and not fully aware ofhis surroundings and can become belligerent, frightened and unable to communicate.
131. Mr. Reed appeared dazed, tired and not fully aware ofhis surroundings on the video of his post-seizure period when deputies Byrd, Montrose, Jodrey, Kern and Stamer entered his cell.
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132. These deputies were supposed to be there to help him get appropriate medical care. Instead, they grabbed him, restrained him, frightened him and tased him twice for failing to obey their misguided commands. Yet this use of force was reviewed and determined to be "justified."
133. That same evening, after Mr. Reed was removed from his cell and taken to medical, Deputies Christopher Dishong and Matthew Carter took him to the Mount Carmel Hospital West Emergency Room for further examination and to fix the cut on his head
134. Deputy Dishong tased Mr. Reed again in the ER, while he was "leg ironed" to a hospital stretcher.4 According to Deputy Carter's report, he was using the bathroom at this time and was not present when Deputy Dishong tased Mr. Reed.
13 5. The "Attending Note" from the hospital records states that Mr. Reed began standing up on the stretcher "talking loudly and not making sense" and that he was "shackled to the bed by the ankle at the time" the deputy tased him. When tased, Mr. Reed fell offthe bed, striking his head
136. Mr. Reed suffered another head laceration from the fall, requiring stitches. 137. According to Deputy Dishong's report, Mr. Reed stood up on the hospital bed and "began to mutter to himsel£" When Mr. Reed did not lie down on the bed, the deputy tased him, causing Mr. Reed to "stiffen" and fall off the bed, striking his head on the wall and floor and sustaining the second head laceration. 13 8. According to Taser International's warnings for the X26 taser, the probes cause ''neuromuscular interruption" which renders the subject unable to move and may cause him to fall.
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139. Taser International therefore warns that subjects are especially at risk offurther injury if they could fall and suffer an impact injury to the head when tased; are on an elevated or unstable surface when tased; or are in restraints that incapacitate or immobilize them when tased. All of these risk factors were present at the time Deputy Dishong tased Mr. Reed in the hospital ER.
140. The Franklin County Sheriff's 0 ffice policy for the X 26 taser also states that tasers should not be deployed upon persons who are restrained by a mechanical device such as handcuffs, leg irons or a restraint chair.
141. Tasing Mr. Reed again at the ER, in a situation where he was leg ironed to a hospital bed and thus had very little ability to move about, was unnecessary, gratuitous, a violation of Sheriff's Office policy, and subjected him to exactly the kind offurther injury that Taser International warned of. Despite this, the Deputy's use ofthe taser was reviewed and deemed a "justified" use offorce.
IX. MICHAEL REED INDIVIDUAL CAUSE OF ACTION- 42 U.S.C. § 1983 AS TO DEFENDANTS BYRD, MONTROSE, JODREY, KERN, STARNER, AND DISHONG
142. At all times relevant to this Complaint, Defendants Byrd, Montrose, Jodrey, Kern, Stamer, and Dishong were state actors by virtue oftheir employment with the Franklin County Sheriffs Office.
143. 42 U.S.C. § 1983 providesthatnoperson, actingundercolorofstatelaw, shall deprive a citizen ofhis rights arising under the Constitution or federal laws.
144. At the time of this incident Mr. Reed had already been committed to a psychiatric hospital pursuant to the NGRI adjudication. He should not even have been in the jail at the time he was tased.
145. Therefore, Mr. Reed was protected by the Fourteenth Amendment.
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146. Under the Fourteenth Amendment, PlaintiffReed had the substantive due process right to be free from undue bodily harm at the hands of state actors.
147. Although Mr. Reed was not convicted of a crime and thus not subject to punishment, but rather was adjudicated NGRI, that is, determined to have been not criminally responsible for the crime charged, Plaintiff Reed pleads in the alternative a violation of his rights under the Eighth Amendment
148. The Eighth Amendment sets parameters on punishment of prisoners who are serving a sentence pursuant to conviction of a crime. It prevents state actors from unnecessarily and wantonly inflicting pain upon prisoners.
149. Whether analyzed under Eighth or Fourteenth Amendment standards, however, the use of the taser against Plaintiff Reed multiple times in his cell by Defendants Byrd, Montrose, Jodrey, Kern, Starner, and by Deputy Dishong at the hospital emergency room was unduly and unnecessarily harmful, as well as a wanton infliction ofpain that violated his Constitutional right to be free from the use of excessive force.
1SO. The fact that Defendants Montrose, Jodrey, Kern, and Stamer were not the officers who tased Mr. Reed during the incident in his cell does not diminish their culpability. These deputies were present, were active participants in this incident, heard Deputy Byrd threaten to tase Mr. Reed ifhe did not cooperate and therefore, had the opportunity to stop this use of excessive force from occurring.
1S1. As a direct and proximate result of the excessive use of force by Defendants Byrd, Montrose, Jodrey, Kern, Stamer, and Dishong, PlaintiffReed suffered compensable physical pain and injuries as well as emotional distress.
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152. PlaintiffReed is also entitled to punitive damages because Defendants Byrd, Montrose, Jodrey, Kern, Stamer, and Dishong acted with reckless and wanton indifference to Plaintiff's Eighth or Fourteenth Amendment rights to be free of excessive force. X. MICHAEL REED INDIVIDUAL CAUSE OF ACTION- 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
153. Defendants Kames, Chief Deputies Barrett and Martin, Deputies Jane/John Does, Deputies Jane/John Roes, and Majors Herrell and Edgington are all state actors by virtue of their employment with the Franklin County Sheriff's Office.
154. Defendants SheriffKames, ChiefDeputies Barrett, Martin, Jane/John Does, Jane/John Roes, Herrell and Edgington have created a policy and practice of excessive and
abusive use oftasers by Franklin County Sheriff's corrections officers because:
a) They routinely ratify corrections deputies' misuse oftasers by reviewing the use offorce reports and videotapes and finding the use of tasers to be "justified," as they did in PlaintiffReed's case.
b) As in Plaintiff Reed's case, they fail to discipline deputies whose use oftasers violates the Franklin County Sheriff's own written policy for deployment of tasers; dep:lrts from well-established standards oflaw enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights ofpersons in the custody ofthe Franklin County Corrections Centers.
c) As evidenced by the deputies' repeated misuse of tasers as set forth in this Complaint, Defendants Sheriff Kames, Chief Deputies Barrett, Martin, Jane/John Does, Jane/John Roes, Herrell and Edgington have failed to properly train corrections deputies to
27

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use tasers in accordance with Sheriff's Office written policy; to use tasers in accordance with manufacturer's warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles fur use of force; and to use tasers in accordance with the federal constitutional rights ofpersons in custody to be free of excessive furce. 155. The policies and practices ofDefendants Sheriff Kames, ChiefDeputies Barrett and Martin, Deputies Jane/John Does, Deputies Jane/John Roes, and Majors Herrell and Edgington in their official and individual capacities constitutes deliberate indifference that in tum makes Defendant Franklin County accountable for injuries to Plaintiff Reed. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245- 1246, 1248 (6th Cir. 1989). 156. Defendants Franklin County, Sheriff Kames, ChiefDeputies Barrett and Martin, Deputies Jane/John Does, Deputies Jane/John Roes, and Majors Herrell and Edgington acted with deliberate indifference by their failure to train deputies in the proper use ofreasonable force and by ratifying the use ofexcessive and gratuitous force against PlaintiffReed while acting under color of state law. 157. These actions and failures to act by these Defendants caused PlaintiffReed to be subjected to excessive and unreasonable furce in violation ofeither the Eighth or Fourteenth Amendments, from which he suffered compensable physical pain and injuries as well as emotional distress. 158. PlaintiffReed is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff's Fourteenth Amendment, or in the alternative, Eighth Amendment, right to protection against the use ofexcessive force. XI. PLAINTIFF DAWN FIORE-BRUNO -STATEMENT OF FACTS 159. PlaintiffFiore-Bruno has a history of treatment for mental illness as well as a reported history ofboth physical and sexual abuse.
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160. PlaintiffFiore-Bruno was arrested for disorderly conduct, a misdemeanor, on December 10,2009. She was brought to FCCC II for booking very early in the morning on that date, around 1:30am.
161. The video of the booking area shows that before Ms. Fiore-Bruno was brought in,
two male deputies can be overheard saying ''I love belly shirts" and "they're hot." 162. When Ms. Fiore-Bruno arrived she was talking in a loud voice and cursing, but not
physically threatening or violent in anyway. 163. Two female deputies, Shannon Beaudry and Elizabeth Klein, sat Ms. Fiore-Bruno
down on a bench and removed her shoes and socks. Ms. Fiore-Bruno did not resist. 164. Deputies Beaudry and Klein then took Ms. Fiore-Bruno to a line drawn on the floor
in front ofthe booking counter, where she stood without resisting. 165. As she was being escorted to the booking counter Ms. Fiore-Brwto asked if she was
being taped and said "I want to be on fucking tape." 166. Deputies Beaudry and Klein removed Ms. Fiore-Bruno's belt and searched her
pockets. Again, she did not resist.
167. A nurse behind the booking counter asked her if she had any medical problems. M-s.
Fiore-Bruno replied "yes." 168. The nurse asked Ms. Fiore-Bruno, "What are they?" Ms. Fiore-Bruno responded
"BPD."5 The nurse asked Ms. Fiore-Bruno if she was going to answer and Ms. Fiore-Bruno responded in a loud voice ''what'd you say to me?" The nurse replied, "I'm not gonna keep
repeating myself." Ms. Fiore-Bruno then yelled "I said BPD." She also called the nurse a
"bitch." The nurse's response was, "Ok, I'm done. I'm not gonna be talked to like that"
5 Ms. Fiore-Bruno has been diagnosed with Borderline Personality Disorder (BPD) and a mood disorder.
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169. Female deputies Beaudry and Klein, accompmied by male deputies Derek Shively, Jason Brobst, Steven Dean and Keith Miller, took Ms. Fiore-Bruno to a holding cell, placed her face down on the floor and began forcibly stripping offher clothes. Cpl. Lee Vandette was also present in the cell and observing the take-down and stripping of Ms. Fiore-Bruno.
170. As she was being stripped, Ms. Fiore-Bruno constantly yelled for a camera to record the event and accused the deputies ofbeing abusive. Deputy Jason Brobst, who was at Ms. Fiore-Bruno's right arm, began yelling at her to stop pulling her arm away"and do what you're told."
171. Deputy Steven Dean drew his taser and pointed the laser light at Ms. Fiore-Bruno. The two female deputies continued to pull off Ms. Fiore-Bruno's clothes with male deputies present in the cell as she was being stripped.
172. Ms. Fiore Bruno said, "There's no reason to make me naked." At that point, deputies began to roll her over face up while she was topless and Ms. Fiore-Bruno continued yelling, "I want a camera." Deputy Brobst told her to "Roll over and do what you're told" and "You're gonna start doing what you're told."
173. As the female deputies began to remove Ms. Fiore-Bruno'sjeans and underwear, she tried to roll over on her stomach. Deputy Dean then placed his taser on her left buttock and drive stunned her.
174. Four male deputies and two female deputies were present as her jeans and underwear were being removed. Ms. Fiore-Bruno said, crying, ''there should not be a male in here."
175. Deputy Brobst told her "this was all because you refused to do what you were told to do." Ms. Fiore-Bruno asked "what if! was your sister?"
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176. After being stripped completely naked, Ms. Fiore-Bruno was left lying, fuce down, on the cell floor. A male deputy warned her she would be tased again if she moved befOre deputies exited the cell. The only clothing they left for her was a safety gown, despite the fact thai there was no objective indication that Ms. Fiore-Bruno intended to hann herselfin any way.
177. It was unnecessary to escalate Ms. Fiore-Bruno's booking by subjecting her to this degrading process, during which she was tased for her ineffectual resistance to being forcibly stripped by multiple deputies.
178. Ms. Brwto has a history ofphysical and sexual abuse and mental illness.6 The process ofbeing forcibly stripped and tased in the presence ofmale deputies during booking for a misdemeanor arrest was particularly traumatizing and humiliating for Ms. Fiore-Bruno given her history.
179. Tasing Ms. Fiore-Bruno was determined to be a "justified" use offorce. XII. DAWN FIORE-BRUNO INDIVIDUAL CAUSE OF ACTION- 42 U.S.C. § 1983 AS TO DEFENDANTS BEAUDRY, KLEIN, SIDVELY, BROBST, DEAN, MILLER AND VANDETTE
180. At all times relevant to this Complaint, Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette were state actors by virtue oftheir employment with the Franklin County Sheriff's Office.
181. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen ofhis rights arising under the Constitution or federal laws.
182. As an arrestee, PlaintiffFiore-Bruno was protected by the Fourth Amendment's protection against use of excessive fOrce by law enforcement.
6 This is not uncommon, as studies show that eighty percent ofwomen in prisons and jails have been victims of sexual and physical abuse. Smith, B., "An end to silence: Woman prisoners' handbook on identifying and addressing sexual misconduct," National Women's Law Center (April1998).
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183. Under the Fourth Amendment, law enforcement officers may only use reasonable force, that is, the amount of force that is reasonable to protect officers from a perceived threat.
184. The use of the taser against PlaintiffFiore-Bruno by Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette was a willful, callous and gratuitous act that violated PlaintiffFiore-Bruno's Fourth Amendment right to be free from the use of excessive force.
185. The fact that Defendants Beaudry, Klein, Shively, Brobst, Miller and Vandette were not the officers who tased Ms. Fiore-Bruno does not diminish their culpability. These deputies were present, were participants in the forced removal of Ms. Fiore-Bruno's clothing, were aware that Deputy Dean was going to tase Ms. Fiore-Bruno as they were holding her, and had the opportunity to stop it from occurring. As a direct and proximate result of the excessive use of force by Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette, PlaintiffFioreBruno suffered compensable physical pain and injuries as well as emotional distress.
186. Plaintiff Fiore-Bruno is also entitled to punitive damages because Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette acted with reckless indifference to Plaintiff's Fourth Amendment right to protection against the use of excessive force. XIII. DAWN FIORE-BRUNO INDIVIDUAL CAUSE OF ACTION- 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
187. Defendants Sheriff Kames, Chief Deputies Barrett and Martin, Deputies Jane/John Does, Deputies Jane/John Roes, and Majors Herrell and Edgington are all state actors by virtue oftheir employment with the Franklin County Sheriff's Office.
188. Defendants SheriffKames, ChiefDeputies Barrett, Martin, Jane/John Does, Jane/John Roes, Herrell and Edgington have created a policy and practice of excessive and abusive use oftasers by Franklin County Sheriff's corrections officers because:
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a) They routinely ratify corrections deputies' misuse oftasers by reviewing the use offorce reports and videotapes and finding the use oftasers to be ')ustified," as they did in Plaintiff Fiore-Bruno's case.
b) As in Plaintiff Fiore-Bruno's case, they fail to discipline deputies whose use of tasers violates the Franklin County Sheriff's own written policy for deployment oftasers; departs from well-established standards oflaw enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights ofpersons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies' repeated misuse oftasers as set forth in this Complaint, Defendants Sheriff Kames, ChiefDeputies Barrett, Martin, Jane/John Does, Jane/John Roes, Herrell and Edgington have failed to properly train corrections deputies to use tasers in accordance with Sheriffs Office written policy; to use tasers in accordance
with manufacturer's warnings for safe use on subjects; to use tasers in accordance with
accepted law enforcement principles for use offorce; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free ofexcessive force. 189. The policies and practices ofDefendants SheriffKarnes, ChiefDeputies Barrett and Martin, Deputies Jane/John Does, Deputies Jane/John Roes, and Majors Herrell and Edgington in their official and individual capacities constitutes deliberate indifference that in tum makes
Defendant Franklin County accountable for injuries to Plaintiff Fiore-Bruno. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245- 1246, 1248 (6th Cir. 1989)
190. Defendants Franklin County, Sheriff Kames, ChiefDeputies Barrett and Martin, Deputies Jane/John Does, Deputies Jane/John Roes, and Majors Herrell and Edgington acted
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with deliberate indifference by their failure to train deputies in the proper use ofreasonable force and by ratifying the use of excessive and gratuitous force against PlaintiffFiore-Bruno while acting under color of state law.
191. These actions and failures to act by these Defendants caused PlaintiffFiore-Bruno to be subjected to excessive and unreasonable force in violation ofthe Fourth Amendment, from which she suffered compensable physical pain and injuries as well as emotional distress.
192. PlaintiffFiore-Bruno is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiffs Fourth Amendment right to protection against the use of excessive force. XIV. JURY DEMAND
193. Plaintiffs Shreve, Reed and Fiore-Bruno demand a trial by jury of all issues triable by a jury. XV. CLASS ACTION ALLEGATIONS AS AGAINST FRANKLIN COUNTY, SHERIFF KARNES, DEPUTY CHIEFS BARRETT AND MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, AND MAJORS HERRELL AND EDGINGTON
194. Plaintiff Shreve brings this action on behalf ofhimselfand on behalf of all others similarly situated solely for declaratory and injunctive relief pursuant to Fed. R. Civ. P. 23(b}(2}.
195. Plaintiff Shreve represents a class ofperson defined as follows: a} All persons who, now or at any future time during the pendency ofthis
litigation, are or will be placed in the custody ofthe Franklin County Sheriffs Office at the Franklin County Corrections Centers. 196. The proposed class is so numerous that joinder of all members is impracticable.
a} Joinder is impracticable here because the class consists of thousands of current and future inmates. Defendant SheriffKames controls the information about the exact number ofinmates at the FCCCs, so PlaintiffShreve cannot establish the precise number
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of class members. However, the 2007 Annual Report of the Franklin County Sheriff's Office states that the average daily population ofthe FCCCs is over 1,850 inmates.
b) Because this class action is seeking prospective injunctive relief, the presence of future or unknown members of a proposed class also makes joinder impracticable. 197. There are also questions oflaw and fact presented in this Complaint that are common to the members ofthe proposed class. These questions include:
a) Do FCCC deputies routinely use tasers on in violation ofthe constitutional rights ofindividuals in their custody?
b) Have the Defendants failed to adequatelytrain and supervise their deputies on the proper use oftasers?
c) Do the Defendants routinely ratify the unconstitutional use oftasers by failing to discipline deputies for improper taser use?
d) Do the Defendants routinely fail to follow their written policy on the use of tasers? 198. The claims ofPlaintiff Shreve are typical ofthe claims ofthe members of the proposed class.
a) Plaintiff Shreve's claims are typical of the claims of the putative class because he, along with all proposed class members, is at risk ofhaving his Constitutional rights violated through FCCC deputies' use oftasers.
b) Due to FCCC deputies' widespread, arbitrary, and excessive use oftasers against persons in custody at the Franklin County Corrections Centers, all ofthe putative class members are similarly at risk ofthe violation oftheir Constitutional rights and seek the same relief to require the Defendants to discontinue their unconstitutional use of tasers.
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c) Plaintiff Shreve and the proposed class members would all be proceeding under the same legal theory- that the FCCC deputies' use ofta.sers violates the Plaintiffs' Constitutional rights. 199. Defendants have acted or refused to act on grounds generally applicable to the proposed class, thereby making injunctive and declaratory relief appropriate to the class as a whole.
a) Class certification is appropriate here, where all class members are at risk of the
violation of their constitutional rights, but their temporary status as arrestees and inmates will frustrate any attempt to achieve systemic declaratory or injunctive relief.
b) Rule 23(b)(2) was formulated to allow for class actions where parties, as here, seek broad injunctive relief to vindicate the civil rights of a large class ofindividuals. 200. The named Plaintiff, Shreve, will fairly and adequately protect the interests ofthe class. Plaintiff Shreve and has no interest that is now or may be potentially antagonistic to the interests ofthe proposed class. 201. Plaintiff Shreve is represented by experienced attorneys employed by Ohio Legal Rights Service (LRS). LRS lawyers have extensive experience in litigating federal court class action cases involving federal rights and federal civil rights claims.
a) LRS lawyers have represented clients in many complex litigation matters over several decades, including serving as class counsel. For example, LRS lawyers have served as class counsel for approximately 20 years in Doe v. State ofOhio, Docket No. 2:91-cv-464 (S.D. Ohio), concerning the state's implementation of its duties under the Individuals with Disabilities Education Act and its funding for special education services. In Rone v. Fireman, Docket No. C75-355A (N.D. Ohio), LRS successfully represented a
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class ofpatients at a state psychiatric hospital against various state agency Defendants to improve conditions at Western Reserve Psychiatric Habilitation Center. Similarly, in Coe v. Hyde, Docket No. C2-87-719 (S.D. Ohio), LRS lawyers represented a class ofpatients at Central Ohio Psychiatric Hospital and succeeded in its challenges to the conditions at that facility. In Cleveland v. Ohio Department ofMental Health, Docket No. 89-cv-3658 (Franklin Cty. Common Pleas), LRS lawyers served as class counsel to challenge the state's procedures for involuntary medicating individuals with mental illness, and succeeding in obtaining a permanent injunction for the Plaintiff class. Many of these cases involved the vindication of individuals' constitutional rights through § 1983 litigation, and LRS' lawyers extensive involvement in these and other similar cases demonstrates that LRS lawyers are qualified to represent the Plaintiff class.
b) LRS has sufficient resources to adequately represent the class. LRS is an independent state agency created in 1975 by state law to protect and advocate the rights of people with disabilities, and is Ohio's federally designated Protection and Advocacy system. LRS Program staff includes ombudspersons, disability rights advocates, and attorneys who advocate for individual and systemic change through individual, group and class action cases, monitoring policies and legislative activity, and providing education and training. LRS is committed both in time and resources to this litigation to ensure that the current abuses of people with disabilities and other people at the Franklin County Corrections Centers are brought to an end
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XVI. CLASS ACTION CLAIM OF ROBERT SHREVE ON BEHALF OF A PROPOSED CLASS UNDER 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF KARNES, DEPUTY CHIEFS BARRETT AND MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, AND MAJORS HERRELL AND EDGINGTON IN THEIR OFFICIAL CAPACITIES
202. Defendants SheriffKarnes, Chief Deputies Barrett and Martin, Deputies Jane/John Does, Deputies Jane/John Roes, and Majors Herrell and Edgington are all state actors by virtue of their employment with the Fran~lin County Sheriffs Office.
203. Corrections deputies at the Franklin County Corrections Centers have subjected Plaintiff Shreve, and will continue to subject memhers of the proposed class, to the abusive and excessive use oftasers in a manner that constitutes excessive, unreasonable and disproportionate force; recklessly and wantonly inflicts mental pain, emotional distress and trauma; is malicious and sadistic; inflicts corporal punishment for minor violations; violates the Franklin County Sheriffs own written policy for deployment oftasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity ofarrestees and inmates; and violates the Constitutional rights ofthose persons in the custody ofthe Franklin County Corrections Centers, in violation of their rights under the Fourth, Eighth and Fourteenth Amendments as enforced through 42 U.S.C. § 1983.
204. Defendants SheriffKames, ChiefDeputies Barrett, Martin, Jane/John Does, Jane/John Roes, Herrell and Edgington have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriffs corrections officers because:
a) They routinely ratify corrections deputies' misuse oftasers by reviewing the use of force reports and videotapes and finding the use oftasers to be 'justified."
b) They fail to discipline deputies whose use of tasers violates the Franklin County Sheriffs own written policy fur deployment oftasers; departs from well-established
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standards oflaw enforcement and corrections professionals; poses substantial and
unjustifiable risks to the health, safety and physical integrity of the persons tased; causes
needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody ofthe Franklin County Corrections Centers.
c) They have failed to properly train corrections deputies to use tasers in accordance with Sheriff's Office written policy; to use tasers in accordance with manufacturer's warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights ofpersons in custody to be free of excessive force. 205. The policies and practices of Defendants SheriffKames, Chief Deputies Barrett, Martin, Jane/John Does, Jane/John Roes, Herrell and Edgington in their official capacities in tum make Defendant Franklin County accountable for the hann to Plaintiff Shreve and members of the proposed class. 206. Defendants Franklin County, Sheriff Kames, ChiefDeputies Barrett, Martin, Jane/John Does, Jane/John Roes, Herrell and Edgington, under color of state law, have acted and
continue to act with deliberate indifference by their failure to train deputies in the proper use of
reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiff Shreve and members oftheproposed class.
207. These actions and failures to act by these Defendants have caused Plaintiff Shreve and will continue to cause members ofthe proposed class to be subjected to excessive and unreasonable force in violation of the Fourth, Eighth and Fourteenth Amendments. XVII. NEED FOR DECLARATORY AND INJUNCTIVE RELIEF
208. The practices involving misuse oftasers discussed in this Complaint are ongoing because the culture at the Franklin County Sheriff's Office fosters them.
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209. There is no accountability for the misuse oftasers by Franklin County corrections deputies. These practices have repeatedly been found to be 'justified" by the chain of command at the Franklin County Sheriff's Office, including facility commanders, the Internal Affairs Bureau and the ChiefDeputy of Corrections. Out of a sample of 180 Use of Force Reports involving tasers since January 1, 2008, the use of force was found "not justified" in less than a handful of cases.
210. Defendants SheriffKames, Barrett, Martin, John/Jane Does, John/Jane Roes, Herrell and Edgington have repeatedly authorized and ratified the custom, policy and practice ofmisuse of tasers by the corrections deputies whom they supervise and for whom they set policy.
211. These Defendants also have failed to adequately train and supervise corrections deputies to use tasers in a manner that is safe, appropriate, conforms to policy and adheres to Constitutional standards for use of force. By their actions, and their failures to act, these Defendants have been and remain deliberately indifferent to the risk of violating the Constitutional rights ofPlaintiffSbreve and the members ofthe proposed Plaintiffclass.
212. The deliberate indifference ofDefendants Sheriff Karnes, Barrett, Martin, John/Jane Does, John/Jane Roes, Herrell and Edgington results in the failure to adequately train, supervise and discipline corrections deputies in their use of tasers has caused and will continue to cause violations of the Constitutional rights ofPlaintiffShreve and the members of the proposed Plaintiff class.
213. These ongoing practices present the real threat ofphysical injury and psychological trauma to individuals who currently are in custody at the Franklin County Corrections Centers or
will be in custody ofthe Franklin County Correction Centers during the pendency ofthis
litigation.
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214. Plaintiff Shreve, who is presently incarcerated at FCCC IT, as well as the members of the proposed class, are entitled to declaratory and injunctive relief. Defendants have engaged and are continuing to engage in the challenged policies and practices that were used against Plaintiff Shreve.
215. Defendants have acted and, without immediate injunctive relief, will continue to act under color of state law to deprive PlaintiffShreve and the members of the proposed class of their Constitutional rights to be free of excessive force.
216. PlaintiffShreve and the members ofthe proposed class have no adequate remedy at law. In the absence of injunctive reliefthey will continue to suffer the real threat ofirreparable harm as a result ofthe existence of a policy and practice that encourages and approves the misuse of tasers by Franklin County Corrections deputies. XVIII. PRAYER FOR RELIEF
Therefore, Plaintiffs request that this Court: A. Assume jurisdiction over this matter; B. Certify the proposed class as: All persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriffs Office at the Franklin County Corrections Centers; C. Issue a declaratory judgment holding that the Defendants have violated the rights of Plaintiff Shreve and the proposed class under the United States Constitution as enforced through
42 u.s.c. § 1983;
D. Issue such temporary or preliminary relief as requested by Plaintiff Shreve in the course ofthese proceedings to prevent irreparable harm from occurring to them and the proposed class;
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E. Enjoin the Defendants from continuing to violate the Constitutional rights ofPlaintiff
Shreve and the members of the proposed class as set forth in this Complaint;
F. Enjoin the Defendants from continuing to violate their own policy on use of the X26
taser;
G. Appoint an expert with extensive experience in corrections who is not associated
with any party to this action to monitor, review, and oversee all use of force reports involving
deployment oftasers by Franklin County Sheriff's corrections deputies and to recommend
appropriate discipline and conduct training of deputies where warranted;
H. Grant judgment in favor of Plaintiffs Shreve, Reed and Fiore-Bruno, and against the
Defendants, individually and collectively, for compensatory damages for Plaintiffs' injuries, pain
and suffering and emotional distress in an amount to be proven at trial;
I. Award punitive damages to Plaintiffs Shreve, Reed and Fiore-Bruno and against the
Defendants, individually and collectively, in an amount to be proven at trial;
J. Award Plaintiffs their attorneys' fees and costs as permitted by law; and
K. Provide such other relief as is just and equitable.
Respectfully submitted,
s/ Jane P. Perry Jane P. Perry (0029698) jperry@OLRS.state.oh.us Trial Attorney for Plaintiffs Kristen N. Henry (0082382) khenry@OLRS.state.oh.us Kerstin Sjoberg-Witt (0076405) ksjoberg-witt@OLRS .state.oh.us Legal Director OHIO LEGAL RIGHTS SERVICE 50 W. Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-7264- telephone (614) 644-1888 -fax
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 Case: 2:10-cv-00644-EAS-MRA Doc #: 71 Filed: 12/15/10 Page: 1 of 49 PAGEID #: 1613

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

ROBERT SHREVE, Individually and on :

behalf of all others similarly situated,

:

MICHAEL WORLEY, Individually and on

behalf of all others similarly situated,

: Case No. 2:10-cv-644

MICHAEL REED, Individually DAWN FIORE-BRUNO, Individually Plaintiffs,

: Judge: Sargus
: Magistrate Judge: Abel
:

-vsFRANKLIN COUNTY, OHIO

: Second Amended Individual Complaint for Damages
: and
: Second Amended Class Action Complaint
: for Declaratory and Injunctive Relief

JIM KARNES, SHERIFF FRANKLIN COUNTY OHIO In his official capacity,

: Jury Demand Endorsed Hereon :

MARK BARRETT, FRANKLIN COUNTY :

SHERIFF’S OFFICE CHIEF DEPUTY,

CORRECTIONS,

:

Individually and in his official capacity,

:

STEPHAN L. MARTIN, FRANKLIN

COUNTY SHERIFF’S OFFICE CHIEF

:

DEPUTY, INVESTIGATIONS,

Individually and in his official capacity,

:

LT. ROBERT FORINO,

:

LT. STEPHANIE KLUMPP,

SGT. CHARLES WILLIAMSON, AND :

MAJOR GEOFFREY STOBART

CURRENT AND FORMER FRANKLIN :

COUNTY DEPUTIES OF THE INTERNAL

AFFAIRS BUREAU WHO REVIEWED

:

AND INVESTIGATED USE OF FORCE

Case: 2:10-cv-00644-EAS-MRA Doc #: 71 Filed: 12/15/10 Page: 2 of 49 PAGEID #: 1614

REPORTS INVOLVING DEPLOYMENT :

OF TASERS AT FCCC I AND FCCC II

FROM JULY 16, 2008 TO PRESENT

:

Individually and in their official capacities,

:

MAJOR AMY HANES,

MAJOR GEOFFREY STOBART, AND :

MAJOR MICHAEL HERRELL

FORMER FACILITY COMMANDERS

:

FRANKLIN COUNTY CORRECTIONS

CENTER I (FCCC I) AND FRANKLIN

:

COUNTY CORRECTIONS CENTER II

(FCCC II) FROM JULY 16, 2008 TO

:

PRESENT

Individually and in their official capacities, :

MAJOR MICHAEL HERRELL,

:

PRESENT FACILITY COMMANDER,

FRANKLIN COUNTY CORRECTIONS

:

CENTER I,

Individually and in his official capacity,

:

MAJOR DOUG EDGINGTON, PRESENT :

FACILITY COMMANDER, FRANKLIN

COUNTY CORRECTIONS CENTER II,

:

Individually and in his official capacity,

:

FRANKLIN COUNTY SHERIFF’S

DEPUTIES:

:

JAMES DISHONG,

:

CPL. SAMUEL BYRD,

JAMES JODREY,

:

SAM MONTROSE,

CLAYTON KERN,

:

CHRISTOPHER STARNER,

SHANNON BEAUDRY,

:

SGT. STEVEN DEAN,

ELIZABETH KLEIN,

:

DEREK SHIVELY,

JASON BROBST,

:

LEE VANDETTE,

DANIEL WALDREN,

:

JOSHUA CROSBY,

NICHOLAS LAPETINA,

:

CHRISTOPHER LEONARD

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CURTIS WINN

:

BEN DAMSCHRODER

CPL. DEBRA CANTRELL,

:

JONATHAN ROUSH,

NICHOLAS WILLIAMS,

:

NATHAN COLEMAN,

ANDREW GILES,

:

MARK EAGAN,

MANLEY MORGAN,

:

DOUGLAS ROBINSON,

CHRISTOPHER LEE,

:

Individually and in their official

capacities,

:

Defendants.

:

I. INTRODUCTION 1. Each paragraph in this Second Amended Complaint incorporates all others. 2. This case challenges a pervasive practice of subjecting arrestees and inmates at the
Franklin County Corrections Centers to the excessive and disproportionate use of force by corrections deputies of the Franklin County Sheriff’s Office.
3. The challenged practice is carried out through the frequent and gratuitous use of tasers to inflict pain, fear, corporal punishment and humiliation.
4. Tasers deliver a minimum 5-second 50,000 volt electrical shock that causes excruciating pain. Landis v. Baker, 2008 U.S. App. LEXIS 21946, at *6 n.4 (6th Cir. 2008). Deputies are able to deliver more than 5 seconds of electricity simply by continuing to press the taser’s trigger. As long as the trigger is depressed, the electrical shock continues.
5. Tasers operate in two different modes. The primary use is to subdue a person at a safe distance by firing two darts or probes that strike and attach to the person. Thereafter, an electrical discharge produces temporary neuromuscular incapacitation (NMI) which instantaneously and completely immobilizes the person. “A stun gun inflicts a painful and

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frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless.” Kijowski v. City of Niles, 2010 U.S. App. LEXIS 7222, at *16 (6th Cir. 2010).
6. Tasers can also be used in “drive stun” mode. According to the Taser International Website Manual, drive stun mode is the “pain compliance option.” As the Taser Manual describes it: “Drive-stun Taser use produces a continuous extremely painful electrical shock useful for an officer engaged in close hand to hand contact with a resisting subject; pain forces the resisting subject to stop violently resisting and submit to handcuffing….”
7. Franklin County Sheriff’s deputies are aware of how painful it is to be tased. Near the end of a video tape of the tasing of a female arrestee during booking at Franklin County Corrections Center I, a Franklin County deputy asks a police officer from The Ohio State University (OSU) campus if he has ever been tased. When the officer responded no, the sheriff’s deputy replied, “They hurt like hell.” Internal Affairs Report #08-116.
8. It is the custom, policy and standard operating practice of Franklin County Sheriff’s corrections deputies to repeatedly use their tasers in a callous and sadistic manner that violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from wellestablished standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of arrestees and inmates; has caused needless physical harm and mental distress; and violates the Constitutional rights of arrestees and inmates at the Franklin County Corrections Centers. II. JURISDICTION AND VENUE
9. This court has subject matter jurisdiction over Plaintiffs’ First Amended Complaint pursuant to 28 U.S.C. §§ 1331, 1343(3) and 1343(4). Venue is proper in this district under 28 U.S.C. § 1391 because all parties reside in this district and the events or omissions giving rise to Plaintiffs’ Complaint occurred in this district.
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III. PARTIES 10. Plaintiff Robert Shreve was at all times relevant to this action a resident of Franklin
County, Ohio. 11. Plaintiff Shreve was incarcerated at the Franklin County Corrections Center II
(FCCC II) at the time of filing the original Complaint on July 16, 2010. 12. Plaintiff Michael Worley was at all times relevant to this action a resident of
Franklin County, Ohio. 13. Plaintiff Worley was incarcerated at FCCC II at the time of filing the First Amended
Complaint on August 27, 2010. 14. Plaintiff Michael Reed was at all times relevant to this action a resident of Franklin
County, Ohio. 15. Plaintiff Reed was not incarcerated at the time of filing the original Complaint on
July 16, 2010. 16. Plaintiff Dawn Fiore-Bruno was at all times relevant to this action a resident of
Franklin County, Ohio. 17. Plaintiff Fiore-Bruno was not incarcerated at the time of filing the original
Complaint on July 16, 2010. 18. Defendant Franklin County is a unit of local government organized under the laws of
the State of Ohio. 19. Defendant Jim Karnes was at all times relevant to this action the Sheriff of Franklin
County, Ohio. He is sued in his official capacity. 20. Defendant Mark Barrett was at all times relevant to this action the Chief Deputy,
Corrections for the Franklin County Sheriff’s Office. 21. Defendant Barrett is the deputy in charge of the operations of Franklin County’s two
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correctional facilities, Franklin County Corrections Center I at 370 S. Front Street in Columbus, Ohio and Franklin County Corrections Center II at 2460 Jackson Pike in Columbus, Ohio.
22. Defendant Barrett reviews and approves all use of force reports from all Franklin County corrections deputies, including use of force reports involving deployment of tasers. He is sued in his individual and official capacities.
23. Defendant Stephan L. Martin was at all times relevant to this action the Chief Deputy, Investigations for the Franklin County Sheriff’s Office.
24. As Chief of Investigations, Defendant Martin is the head of the Internal Affairs Bureau of the Franklin County Sheriff’s Office. The Internal Affairs Bureau is responsible for the investigation of alleged misconduct by members of the Franklin County Sheriff’s Office.
25. Defendant Martin’s Bureau reviews all use of force reports from Franklin County corrections deputies, including use of force reports involving deployment of tasers. Defendant Martin is sued in his individual and official capacities.
26. Defendants Stephanie Klumpp, Robert Forino, Geoffrey Stobart, and Charles Williamson were the members of the Franklin County Sheriff’s Office Internal Affairs Bureau at all times relevant to this action.
27. As members of the Internal Affairs Bureau, Defendants Klumpp, Forino, Stobart, and Williamson reviewed all use of force reports from Franklin County corrections deputies who worked at FCCC I and FCCC II, including use of force reports involving deployment of tasers. Defendants Klumpp, Forino, Stobart, and Williamson are sued in their individual and official capacities.
28. Defendants Amy Hanes and Michael Herrell were the facility commanders for FCCC I at all times relevant to this action.
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29. From January 1, 2009, to August 3, 2009, there was no facility commander for FCCC I. During that time period, Defendant Barrett was the de facto facility commander in his role as Chief Deputy of Corrections.
30. As FCCC I facility commanders, Defendants Hanes and Herrell reviewed all use of force reports from Franklin County corrections deputies who worked at FCCC I, including use of force reports involving deployment of tasers. Defendants Hanes and Herrell are sued in their individual and official capacities.
31. Defendants Michael Herrell, Geoffrey Stobart and Doug Edgington were the facility commanders for FCCC II during times relevant to this action.
32. As FCCC II facility commanders, Defendants Herrell, Stobart and Edgington reviewed all use of force reports from Franklin County corrections deputies who worked at FCCC II, including use of force reports involving deployment of tasers. Defendants Herrell, Stobart and Edgington are sued in their individual and official capacities.
33. Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee were active participants in the tasing of Plaintiff Robert Shreve. These Defendants are sued in their individual capacities.
34. Defendants Leonard, Waldron, Winn, Crosby, Damschroder and Lapetina were active participants in the tasing of Plaintiff Michael Worley. These Defendants are sued in their individual capacities.
35. Defendants Dishong, Byrd, Leonard, Jodrey, Montrose, Kern, and Starner were active participants in the tasing of Plaintiff Michael Reed. These Defendants are sued in their individual capacities.
36. Defendants Dean, Beaudry, Klein, Shively, Brobst and Vandette were active
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participants in the tasing of Plaintiff Dawn Fiore-Bruno. These Defendants are sued in their individual capacities. IV. POLICY AND PRACTICE OF EXCESSIVE USE OF TASERS BY DEFENDANTS
37. Under Ohio law, Sheriff Karnes makes the policy for the county with regard to the operation of his office and discharge of his duties.
38. According to the Franklin County Sheriff’s Office policy, the Chief Deputy of Corrections, Defendant Barrett, assigns X26 Tasers to corrections officers at his discretion. AR800:2, Section 2.1.
39. According to this same policy, tasers are to be deployed “to gain control of a violent or dangerous inmate…when attempts to subdue the inmate by conventional tactics have been or are likely to be ineffective or there is reasonable expectation that it will be unsafe for deputies to approach within contact range of the inmate.” AR800:2, Section 1.3.
40. This policy permits taser deployment in the following circumstances: self-defense; protection of another inmate or staff; disarming an inmate under non-lethal conditions; preventing self-harm to an inmate; or controlling a combative inmate. AR800:2, Sections 1.3.1 1.3.5.
41. According to policy, tasers should not be deployed upon persons who are restrained by a mechanical device such as handcuffs, leg irons or a restraint chair. AR800:2, Section 3.1.14
42. Further, the policy provides that the taser is not recommended for use on women known to be pregnant. AR800:2, Section 5.5 states that corrections officers should not use tasers to “harass, taunt, interrogate, interview, threaten, or belittle any persons,” AR800:2, Section 5.3.
43. Under the policy, every time a deputy uses a taser he or she must generate a Use of Force Report which is forwarded through the chain of command. AR800:2, Section 4.5.
44. The Franklin County Sheriff’s Office Use of Force policy states that each shift
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supervisor must compile a summary of each use of force report and forward this to Internal Affairs. AR801, Section 2.3.
45. Internal Affairs must then review all use of force reports, interview all persons with knowledge of the event, and make a determination of whether or not the use of force was in compliance with department policy, that is, whether the use of force was “justified.” AR801, Sections 2.5 - 2.6. On information and belief, the Internal Affairs review also includes video tapes of each use of force incident, including tapes made by hand-held cameras operated by deputies.
46. Internal Affairs then forwards this record and its use of force determination to the Franklin County Sheriff or his designee for review of the entire record. The Sheriff or his designee may either accept or reject the finding of Internal Affairs. AR801, Sections 2.7 - 2.8. If the use of force is ultimately determined to be “justified,” no discipline is imposed on the deputy or deputies involved.
47. Thus, the chain of command for reviewing all reports involving use of tasers by Franklin County Sheriff’s deputies includes shift supervisors, the Internal Affairs Bureau and the Sheriff or his designee. The Franklin County Sheriff or his designee makes the final determination of whether the use of tasers, or any other use of force, was justified.
48. Franklin County corrections deputies routinely violate the Sheriff’s Office policy on deployment of tasers. These practices are captured in the written use of force reports and on videotapes recorded by the Franklin County Sheriff’s Office in scores of cases since at least January 1, 2008.
49. Franklin County corrections deputies regularly use tasers in situations where the person does not remotely present a threat of violent behavior or harm to self or others, and
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routinely and deliberately use tasers as first strike weapons without employing or even considering less painful or harmful control tactics.
50. In case after case, deputies tase people, often in the drive stun mode to cause pain, when the person was greatly outnumbered by a team of deputies who were easily able to physically overpower and control the individual, or accomplish the task at hand, thereby eliminating any objective threat to the person’s own safety or that of the deputies.
51. In a number of instances, corrections deputies tased arrestees or inmates while they were in mechanical restraints. In one case, an inmate was even tased in drive stun mode while fully immobilized in a four point restraint chair. The use of force in this instance was found “justified.” Internal Affairs Report #09-360.
52. It is common for deputies to tase a person whose only offense was failure to obey deputies’ verbal commands, which is classified as a “minor rule violation” that does not pose a threat to staff or inmates under the Sheriff’s own administrative regulation.1 Thus, the threshold for use of the taser is often only a minor breach of jail discipline.
53. Deputies also use the taser as a retaliatory weapon when detainees show verbal resistance or question authority by using profanity or making derogatory remarks to staff, despite that fact that this too is considered only a “minor rule violation” under Sheriff’s Office policy.2
54. Comparisons of the videotapes to the deputies’ written use of force reports also show that deputies often embellish or misrepresent the circumstances under which people were tased. The written reports describe the persons they tased as “combative,” “unruly” or “resisting” when the actual video showed that the person was yelling and/or cursing at deputies in a manner that
1 Under AR 804 5.1. “Minor rule violations shall include….failure to comply with an order by staff.” 2 Under AR 804 5.2 minor rule violations include “profanity, derogatory remarks or gestures to any member of the staff….”
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was irritating, but not a physical threat. 55. In other instances, the “resistance” was passive, not combative or active, in nature,
such as a person refusing to place hands behind the back, failing or refusing to remove a piece of jewelry or clothing, or a person who crossed his or her arms across the chest in self-protection against a forced cuffing or stripping.
56. For example, deputies tased a woman, who previously told them she was pregnant, for being unable to remove her tongue ring because her hands were too slippery. Deputies tased her after they refused her repeated requests to use a paper towel to remove the tongue ring. After tasing her the deputies finally gave her a paper towel which enabled her to remove the tongue ring without difficulty. The tasing of this woman was found to be a “justified” use of force. Internal Affairs Report #09-399.
57. In many other instances, deputies tased persons for being “uncooperative.” These individuals were not violent or threatening violence. They were simply so impaired by alcohol or drugs that they were incapable of comprehending or complying with the deputies’ commands, as shown in a video that depicts a young male arrested on a misdemeanor charge who is clearly cognitively impaired by drugs or alcohol. In the video of this case, the corporal in charge told the man “I don’t know what you’re on.”
58. Several deputies had taken this man to a cell in order to change him from his street clothes into jail clothes. The corporal, who had a taser, informed the other deputies that “he hasn’t been a threat to us but if I say ‘taser’ move out of the way.”
59. The video shows that the young man complied with the corporal’s commands to remove his ring, shirt, shoes and pants but did so slowly, with deputies needing to assist at times. The man had removed all clothing but his underwear when the corporal ordered him to sit down
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on a bench. The man remained standing after several commands to sit down. The corporal then tased him multiple times, including drive stuns, and pistol whipped him with the taser. The deputy’s use of the taser in this case was found “justified.” Internal Affairs Report #09-258.
60. Corrections deputies routinely and deliberately use tasers in drive stun mode as a form of corporal punishment for behavior that does not remotely involve violent resistance by a subject, or constitute a physical or security threat.
61. One example of this is captured in the video of a man arrested for a misdemeanor. He was handcuffed behind his back and was not acting out in a threatening manner. Sgt. Mychal Turner tased this man twice with probes because he got up from a bench and began to walk around in the booking area while another deputy watched over him. The man was kneeling on the floor, incapacitated by the earlier tasings, when the Sergeant then drive stunned him twice because the man did not immediately obey further commands to get up from the floor and sit down on the bench. The tasing of this man was reviewed and found to be “justified.” Internal Affairs Report #10-009.
62. Corrections deputies also routinely and deliberately tase people who are particularly vulnerable because of physical and mental disabilities. Deputies often respond inappropriately to such persons in a manner that escalates conflict and actually increases the likelihood that excessive force will be used.
63. One video depicts deputies who came to the cell of an inmate with mental illness to move him to another location. When deputies opened the cell door the inmate was holding a mat in front of him and speaking unintelligibly. The inmate’s actions and demeanor show that he was disoriented. Sgt. Turner tased this inmate for not standing up and tased him again for moving his arms and legs, stating “I’m tired of playing with you.” Turner continued to tase this
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mentally impaired inmate when he tried to crawl under the bed. The inmate was finally pulled out of the cell, still clutching the mat. He was put in leg irons and tased again when he would not let go of the mat. The use of force in this instance was found “justified.” Internal Affairs Report #09-018.
64. In another video, deputies came to a cell ostensibly to assist a mentally ill inmate who was banging his head against his bed. Instead of entering the cell to remove the inmate, a team of deputies stood around outside the cell while a sergeant repeatedly tased this inmate a total of fourteen times because he would not slide out of the cell by himself. This use of force was found to be “justified.” Internal Affairs Report #09-390.
65. Corrections deputies also routinely and deliberately deploy tasers for pain and subjugation during the forced stripping of arrestees who should not be subjected to such a humiliating practice.
66. Often, when an arrestee voices a verbal objection to having to remove his or her clothes, or otherwise shows any lack of cooperation during the booking process, such as failing to answer routine medical questions from a nurse, a team of deputies takes the person into a side tank, forcibly strips the individual without telling the person why they are being “dressed out,” and tases the person if there is any degree of resistance, including passive or verbal resistance, to being stripped.
67. For example, one video shows a twenty one year old woman, brought in for driving without an operator’s license, a misdemeanor, who was stripped and tased four times. During booking, she verbally expressed her displeasure at being arrested but was not aggressive or threatening. The deputies grabbed her already injured arm and she complained they were hurting her. When she voiced these complaints, deputies whisked her into a “side tank” where deputies
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pushed her face first into a wall and then forced her to the floor, face down. 68. Although deputies described this young woman as “violently” resisting, at least four
deputies controlled her arms, trunk and legs and she could only squirm. With two male deputies present, and another male deputy filming with a hand-held camera, the team of deputies forcibly stripped her while she constantly asked “what are you doing to me?” She was left lying naked, face down on the floor of her cell. Deputies left only a safety gown for her to wear, despite the fact that she presented no objective risk of self harm.3 This use of force was also found “justified.” Internal Affairs Report #09-147.
69. In another case, the Ohio State Patrol brought a Hispanic man to the jail on traffic charges. He was also suspected of possibly being a deportable felon wanted by the United States Immigration and Naturalization Service (INS), which turned out to be a case of mistaken identity. The video shows that deputies booked this man and then took him into a side tank where he was ordered to strip.
70. Deputies ordered the man to pull his underwear down, turn around, bend over and “spread your ass cheeks.” The man refused to comply with this humiliating request. Sgt. Turner again ordered the man to bend over and spread his cheeks so that he could be checked for “contraband” even though these deputies had no reason to suspect that the man possessed drugs and he had already had a pat-down search and clothing search. He again refused and Turner then tased him. The intense pain led the man to obey Turner’s command. Afterwards, he asked Turner “why you mess with me like that?” In response to the man’s question, Turner replied in a loud voice, “This is jail.” Turner’s use of the taser in this case was reviewed and found to be
3 The safety or suicide gown is a shapeless green gown that is supposed to be used for arrestees or inmates who are threatening self-harm. When a person is placed in a safety gown he or she is not even allowed to wear underwear.
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“justified.” Internal Affairs Report #08-272. 71. Sheriff Karnes, as the policy maker for the Franklin County Sheriff’s Office, as well
as Deputy Chiefs Barrett and Martin, members of the Internal Affairs Bureau and the facility commanders of the Franklin County Corrections Centers are responsible for the policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers. This is because, as set out in this Complaint:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified.”
b) They fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this Complaint, they have failed to properly train corrections deputies to use tasers in accordance with the Franklin County Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal Constitutional rights of persons in custody to be free from excessive force. 72. The policies and practices of Defendants Sheriff Karnes, Chief Deputies Barrett and Martin, and Defendants Klumpp, Forino, Stobart, Williamson, Hanes, Herrell, and Edgington in
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their official and individual capacities constitute deliberate indifference that in turn makes Defendant Franklin County accountable for injuries to the Plaintiffs in this action.
73. Along with those cases discussed above, the facts in the cases of named Plaintiffs Robert Shreve, Michael Worley, Michael Reed, and Dawn Fiore-Bruno exemplify the policy and practice of abusive and excessive use of tasers by Franklin County Corrections deputies. V. PLAINTIFF ROBERT SHREVE - STATEMENT OF FACTS
74. Plaintiff Shreve is deaf. He was brought to FCCC I on a misdemeanor charge, domestic violence, at a few minutes after midnight on July 19, 2009.
75. The video of his case shows that he arrived in the back of a Columbus Police Department wagon. He was handcuffed behind his back and his legs were restrained by a hobble strap because, according to Columbus police, he was a “fighter.”
76. A team of at least six sheriff’s deputies and Cpl. Debra Cantrell assembled at the police wagon to take Mr. Shreve from police custody and into the jail booking area.
77. Cpl. Cantrell had her taser out before Mr. Shreve was even lifted from the police wagon.
78. A Columbus police officer told Cpl. Cantrell and the other deputies that Mr. Shreve was deaf and could not speak English.
79. Mr. Shreve was removed from the police wagon without incident and was held by deputies. He went limp and was carried into the jail booking area by three deputies.
80. Once inside the booking area, Mr. Shreve was placed face down on the floor and held there by a team of deputies.
81. Deputy Jonathan Roush had Mr. Shreve’s left arm; Deputy Douglas Robinson had his right arm; and Deputy Christopher Lee had his legs. Cpl. Cantrell stood by with her taser out.
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82. Mr. Shreve is not a big man. He is 5 feet, 7 inches tall and weighs 165 pounds. 83. The Deputies’ reports state that Mr. Shreve was “attempting to kick and move about on the floor struggling with staff.” In her report, Cpl. Cantrell stated that Mr. Shreve “continued to struggle and thrash about” and was “combative.” She also stated that Mr. Shreve was trying to bite one of the deputies. 84. These descriptions do not accurately reflect the actual video tape of Mr. Shreve’s booking. 85. The video shows that it would have been physically impossible for him to bite anyone because he was handcuffed behind his back and pinned, face down on the floor, by three deputies. Deputies Roush and Robinson were on his right and left upper body and Deputy Lee held Mr. Shreve’s legs down. 86. Although he did move his legs to one side he was not kicking. His legs were hobbled and restrained by the deputies. It was not physically possible for him to “thrash about” or be “combative” with three deputies on top of him. 87. A fourth deputy, Nicholas Williams, also stepped in and, with both hands, pressed Mr. Shreve’s face into the floor in a head lock. In total, he was handcuffed behind the back, in leg irons and held down by four deputies. Their intended task was to exchange handcuffs and return the original set of cuffs to the Columbus police officers. 88. While all four deputies immobilized Mr. Shreve face down, Cpl. Cantrell stepped in and tased Mr. Shreve’s leg in drive stun mode. He gave a guttural cry of pain. Cpl. Cantrell then asked the deputies, “Did that soften him up?” 89. After the deputies exchanged the handcuffs, Cpl. Cantrell then leaned over Mr. Shreve and told him to “relax, relax,” as if he could hear her instructions. She later
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remarked, “He’s freakin’ because he can’t hear.” 90. Mr. Shreve was then taken to a side tank where his clothes were removed and he was
placed in jail clothing without further incident. 91. Cpl. Cantrell’s use of the taser in drive stun mode to “soften up” Mr. Shreve was
deemed to be a “justified” use of force. VI. ROBERT SHREVE INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS CANTRELL, ROUSH, WILLIAMS, COLEMAN, GILES, EAGAN, MORGAN, ROBINSON AND LEE
92. At all times relevant to this Complaint, Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee were state actors by virtue of their employment with the Franklin County Sheriff’s Office.
93. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
94. As an arrestee, Plaintiff Shreve was protected by the Fourth Amendment’s protection against use of excessive force by law enforcement.
95. Under the Fourth Amendment, law enforcement officers may only use reasonable force, that is, the amount of force that is reasonable to protect officers from a perceived threat.
96. The use of the taser in drive stun mode against Plaintiff Shreve by Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee was a willful, callous and gratuitous act that violated Plaintiff Shreve’s Fourth Amendment right to be free from the use of excessive force.
97. The fact that Defendants Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee were not the officers who tased Mr. Shreve does not diminish their culpability. These deputies were present, were active participants who subdued Mr. Shreve, were aware that Deputy Cantrell was going to tase Mr. Shreve as he lay in their grasp, and had
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the opportunity to stop it from occurring. 98. As a direct and proximate result of the excessive use of force by Defendants Cantrell,
Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee, Plaintiff Shreve suffered compensable physical pain and injuries as well as emotional distress.
99. Plaintiff Shreve is also entitled to punitive damages because Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. VII. ROBERT SHREVE INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
100. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington are all state actors by virtue of their employment with the Franklin County Sheriff’s Office.
101. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified, as they did in Plaintiff Shreve’s case.
b) As in Plaintiff Shreve’s case, they fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons
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tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this Complaint, Defendants Sheriff Karnes, Barrett, Martin, Herrell and Edgington have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force. 102. The policies and practices of Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington in their official and individual capacities constitutes deliberate indifference that in turn makes Defendant Franklin County accountable for injuries to Plaintiff Shreve. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245 1246, 1248 (6th Cir. 1989). 103. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington acted with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiff Shreve while acting under color of state law. 104. These actions and failures to act by these Defendants caused Plaintiff Shreve to be subjected to excessive and unreasonable force in violation of the Fourth Amendment, from which he suffered compensable physical pain and injuries as well as emotional distress. 105. Plaintiff Shreve is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to
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protection against the use of excessive force. VIII. PLAINTIFF MICHAEL WORLEY - STATEMENT OF FACTS
106. Plaintiff Worley had open heart surgery to replace his mitral valve in December, 2008. He is also recovering from addiction to heroin. He has not used heroin for at least seven months.
107. Plaintiff Worley was arrested by Franklin County Sheriff’s deputies on April 16, 2010 in Grove City. He was a passenger in a car pulled over for a traffic stop.
108. Deputies found that he had an outstanding misdemeanor warrant for petty theft. They also found marijuana and some Xanax and Suboxone pills that were not prescribed for Mr. Worley.
109. Suboxone is approved for the treatment of opioid dependence and Xanax is an antianxiety drug. Mr. Worley told deputies he was a recovering heroin addict and took both pills to keep him from relapsing.
110. Deputies arrested him on the misdemeanor warrant and possession of drugs and took him to FCCC I for booking. Once booked, Mr. Worley was placed in a side cell.
111. According to Sgt. Christopher Leonard’s use of force report, a deputy heard Mr. Worley yell that he wanted to kill himself.
112. A “response team” was assembled to go to Mr. Worley’s cell, place him on a safety watch, and place Mr. Worley in a safety gown.
113. Five deputies - Sgt. Leonard, Joshua Crosby, Daniel Waldren, Ben Damschroder and Nicholas Lapetina - entered Mr. Worley’s cell. Deputy Curtis Winn recorded this incident on a hand-held camera.
114. The video tape of this incident shows that Sgt. Leonard drew his taser as he entered Mr. Worley’s cell with the other four deputies.
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115. Sgt. Leonard ordered Mr. Worley to stand up and turn around so that Mr. Worley had his back to the deputies and was facing the back wall of his cell.
116. Sgt. Leonard then ordered Mr. Worley to take off his shirt, sandals and socks. 117. Mr. Worley complied with these orders but asked “why do I gotta get naked?” 118. Sgt. Leonard replied, “cause you said you wanted to kill yourself.” 119. Mr. Worley denied this, saying “no, I said I feel like I’m going crazy if I don’t get my anxiety medicine.” 120. Sgt. Leonard then ordered Mr. Worley to take off his pants and his underwear. Sgt. Leonard then told Mr. Worley “one more order and I’m going to tase you.” 121. Taser International warns that subjects with certain pre-existing conditions such as cardiac disease may be at risk of death or serious injury from “arrest-related death” if tased. 122. Mr. Worley turned toward the sergeant and deputies and told them “I got open heart surgery, you’ll kill me, my mom will be rich.” 123. Sgt. Leonard’s response was “I don’t care.” 124. Mr. Worley took off his pants but refused to take off his underwear saying “I’m not sitting in here naked.” 125. Sgt. Leonard gave Mr. Worley three rapid commands to take off his shorts, then said “I’m not gonna tell you again, take off your shorts.” 126. The sergeant then immediately tased Mr. Worley in the back. Mr. Worley cried out in pain. 127. Sgt. Leonard ordered Mr. Worley to lay on his belly and put his hands at his sides or “I’ll pull the trigger again.” Sgt. Leonard ordered the other deputies to remove Mr. Worley’s underwear as he lay face down on the cell floor.
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128. Mr. Worley made choking and coughing noises after being tased and his entire body began shaking uncontrollably.
129. Sgt. Leonard remarked, “He’s faking,” but called for a nurse. She asked Mr. Worley if he could hear her, told him to open his eyes, told him to calm his breathing and told him to wake up. Mr. Worley continued shaking for several minutes after the nurse arrived.
130. Once Mr. Worley stopped shaking Sgt. Leonard told him to “stay down on the ground or I’ll shoot you again.” The deputies then placed Mr. Worley in a suicide gown.
131. There were five deputies in Mr. Worley’s cell who could have managed any resistance or threat presented by Mr. Worley. Mr. Worley himself did not physically or verbally threaten these deputies. He was tased simply because he did not want to remove his underwear.
132. Knowing that Mr. Worley had a heart condition, Sgt. Leonard deployed his taser without considering measures of lesser force because this was the quickest and most convenient way to get compliance.
133. Sgt. Leonard’s use of the taser as a form of pain compliance in this instance was reviewed and found to be “justified.” IX. MICHAEL WORLEY INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS LEONARD, WINN, CROSBY, DAMSCHRODER, WALDREN AND LAPETINA
134. At all times relevant to this Complaint, Defendants Leonard, Winn, Crosby, Damschroder, Waldren and Lapetina were state actors by virtue of their employment with the Franklin County Sheriff’s Office.
135. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
136. As an arrestee, Plaintiff Worley was protected by the Fourth Amendment’s protection against use of excessive force by law enforcement.
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137. Under the Fourth Amendment, law enforcement officers may only use reasonable force, that is, the amount of force that is reasonable to protect officers from a perceived threat.
138. The use of the taser against Plaintiff Worley by Defendants Leonard, Winn, Crosby, Damschroder, Waldren and Lapetina was a willful, callous and gratuitous act that violated Plaintiff Worley’s Fourth Amendment right to be free from the use of excessive force.
139. The fact that Defendants Winn, Crosby, Damschroder, Waldren and Lapetina were not the officers who tased Mr. Worley does not diminish their culpability. These deputies were present, were active participants in this incident, were aware that Sgt. Leonard was threatening to tase Mr. Worley, and had the opportunity to stop it from occurring.
140. As a direct and proximate result of the excessive use of force by Defendants Leonard, Winn, Crosby, Damschroder, Waldren and Lapetina, Plaintiff Worley suffered compensable physical pain and injuries as well as emotional distress.
141. Plaintiff Worley is also entitled to punitive damages because Defendants Leonard, Winn, Crosby, Damschroder, Waldren and Lapetina acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. X. MICHAEL WORLEY INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
142. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Herrell are all state actors by virtue of their employment with the Franklin County Sheriff’s Office.
143. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Herrell have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
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a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified,” as they did in Plaintiff Worley’s case.
b) As in Plaintiff Worley’s case, they fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this Complaint, Defendants Sheriff Karnes, Barrett, Martin, and Herrell have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force. 144. The policies and practices of Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Herrell in their official and individual capacities constitutes deliberate indifference that in turn makes Defendant Franklin County accountable for injuries to Plaintiff Worley. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245 - 1246, 1248 (6th Cir. 1989) 145. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Herrell acted with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against
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Plaintiff Worley while acting under color of state law. 146. These actions and failures to act by these Defendants caused Plaintiff Worley to be
subjected to excessive and unreasonable force in violation of the Fourth Amendment, from which he suffered compensable physical pain and injuries as well as emotional distress.
147. Plaintiff Worley is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. XI. PLAINTIFF MICHAEL REED - STATEMENT OF FACTS
148. In the early 1990’s, Plaintiff Reed had a motorcycle accident that left him in a coma and caused a traumatic brain injury. Since this accident he has experienced seizure episodes.
149. Mr. Reed has been diagnosed with both tonic clonic seizures (stiffening and rigidity of muscles followed by rhythmic jerking motions) and complex partial seizures (the person appears to be staring blankly and loses contact with his surroundings, often followed by chewing movements, mumbling and unorganized movements).
150. Like many persons who have seizures, he usually does not remember having the seizure and becomes confused, disoriented, fatigued and sometimes combative after a seizure.
151. On August 10, 2008 Mr. Reed was walking near the corner of Hamilton Road and Broad Street in Columbus, Ohio when he had a seizure.
152. Emergency Medical Technicians (EMTs) from the Columbus Fire Department responded. According to their reports, Mr. Reed was lying on his stomach when they arrived, rambling and not making sense. When they tried to take him to the hospital, they said he became “aggressive and assaultive.”
153. Instead of the hospital, Mr. Reed ended up in jail on a charge of assaulting a peace officer, one of the EMTs.
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154. Mr. Reed had no memory of the incident. He woke up in jail, wearing a suicide gown. When told he was in jail for assault, he asked who he assaulted.
155. Mr. Reed was incarcerated in the Franklin County Corrections Center II awaiting trial on the assault charge.
156. On December 23, 2008, Judge Michael Holbrook of the Franklin County Common Pleas Court found Mr. Reed not guilty by reason of insanity (NGRI) on the assault charge.
157. The NGRI finding was based on an evaluation by forensic psychologist Pamela Chapman which concluded that, because of his brain injury and seizure disorder, he was neither able to appreciate the wrongfulness of his conduct at the time of the offense nor able to control his disorganized thinking and behavior.
158. Judge Holbrook ordered Mr. Reed to be committed to the Twin Valley Behavioral Healthcare Forensic Unit.
159. However, Twin Valley did not have an open bed. Thus, Mr. Reed had to stay in the Franklin County Corrections Center II until a bed became available at Twin Valley.
160. On January 29, 2009 Mr. Reed had a seizure in his cell at FCCC II. 161. A team of deputies - Cpl. Sam Byrd, Deputy Sam Montrose, Deputy James Jodrey, Deputy Clayton Kern and Deputy Chris Starner - entered his cell at about 4:00 pm to “take him to medical” to receive medical attention. 162. These deputies were aware that Mr. Reed had just had a seizure. 163. Mr. Reed was on the floor of his cell when the deputies entered. Upon entering, they gave rapid commands to Mr. Reed to put his hands behind his back so they could put handcuffs on him and take him to medical. 164. The deputies’ use of force reports indicate that Mr. Reed became “combative” when
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they tried to handcuff him. The video of this incident, however, does not support their description of Mr. Reed.
165. The video shows Mr. Reed as being dazed, confused and unable to process the deputies’ commands in the aftermath of his seizure.
166. Mr. Reed did not put his hands behind his back as commanded, but he did not actively resist the deputies. He put his hands up in a defensive posture. His hands were shaking.
167. When two deputies grabbed Mr. Reed’s left arm to put it behind his back for cuffing, Mr. Reed rolled over on his stomach and said, “oh, oh.”
168. Cpl. Byrd pointed the taser at Mr. Reed’s chest. Byrd told Mr. Reed he would be tased if he didn’t put his left hand behind his back and warned “It’s gonna hurt a lot.” “It’s gonna fucking hurt bad.”
169. The video shows that Mr. Reed was still confused and not comprehending what the deputies wanted him to do.
170. The deputies again grabbed Mr. Reed to place his hands behind his back. When he attempted to roll away from them, Cpl. Byrd tased him. Mr. Reed cried out in pain and put his hands up in a defensive posture saying, “Please, please, please.”
171. Cpl. Byrd again tased Mr. Reed, this time in drive stun mode, because he was not putting his hands behind his back. At one point, a deputy said “Reed, hey, wake up,” indicating that Mr. Reed still was not fully aware.
172. After being tased a second time, Mr. Reed submitted. He was cuffed behind the back, leg ironed and pulled to his feet. The video shows that as the deputies took him out of his cell, Mr. Reed asked several times “What did I do?”
173. Mr. Reed suffered a cut on his head from this incident. It is unclear from the
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deputies’ reports whether the cut was the result of falling during the seizure or the deputies’ efforts to cuff him.
174. After a seizure, a person is often fatigued, dazed and not fully aware of his surroundings and can become belligerent, frightened and unable to communicate.
175. Mr. Reed appeared dazed, tired and not fully aware of his surroundings on the video of his post-seizure period when deputies Byrd, Montrose, Jodrey, Kern and Starner entered his cell.
176. These deputies were supposed to be there to help him get appropriate medical care. Instead, they grabbed him, restrained him, frightened him and tased him twice for failing to obey their misguided commands. Yet this use of force was reviewed and determined to be “justified.”
177. That same evening, after Mr. Reed was removed from his cell and taken to medical, Deputies Christopher Dishong and Matthew Carter took him to the Mount Carmel Hospital West Emergency Room for further examination and to fix the cut on his head.
178. Deputy Dishong tased Mr. Reed again in the ER, while he was “leg ironed” to a hospital stretcher.4 According to Deputy Carter’s report, he was using the bathroom at this time and was not present when Deputy Dishong tased Mr. Reed.
179. The “Attending Note” from the hospital records states that Mr. Reed began standing up on the stretcher “talking loudly and not making sense” and that he was “shackled to the bed by the ankle at the time” the deputy tased him. When tased, Mr. Reed fell off the bed, striking his head.
180. Mr. Reed suffered another head laceration from the fall, requiring stitches. 181. According to Deputy Dishong’s report, Mr. Reed stood up on the hospital bed and
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“began to mutter to himself.” When Mr. Reed did not lie down on the bed, the deputy tased him, causing Mr. Reed to “stiffen” and fall off the bed, striking his head on the wall and floor and sustaining the second head laceration.
182. According to Taser International’s warnings for the X26 taser, the probes cause “neuromuscular interruption” which renders the subject unable to move and may cause him to fall.
183. Taser International therefore warns that subjects are especially at risk of further injury if they could fall and suffer an impact injury to the head when tased; are on an elevated or unstable surface when tased; or are in restraints that incapacitate or immobilize them when tased. All of these risk factors were present at the time Deputy Dishong tased Mr. Reed in the hospital ER.
184. The Franklin County Sheriff’s Office policy for the X 26 taser also states that tasers should not be deployed upon persons who are restrained by a mechanical device such as handcuffs, leg irons or a restraint chair.
185. Tasing Mr. Reed again at the ER, in a situation where he was leg ironed to a hospital bed and thus had very little ability to move about, was unnecessary, gratuitous, a violation of Sheriff’s Office policy, and subjected him to exactly the kind of further injury that Taser International warned of. Despite this, the Deputy’s use of the taser was reviewed and deemed a “justified” use of force. XII. MICHAEL REED INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS BYRD, MONTROSE, JODREY, KERN, STARNER, AND DISHONG
186. At all times relevant to this Complaint, Defendants Byrd, Montrose, Jodrey, Kern, Starner, and Dishong were state actors by virtue of their employment with the Franklin County Sheriff’s Office.
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187. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
188. At the time of this incident Mr. Reed had already been committed to a psychiatric hospital pursuant to the NGRI adjudication. He should not even have been in the jail at the time he was tased.
189. Therefore, Mr. Reed was protected by the Fourteenth Amendment. 190. Under the Fourteenth Amendment, Plaintiff Reed had the substantive due process right to be free from undue bodily harm at the hands of state actors. 191. Although Mr. Reed was not convicted of a crime and thus not subject to punishment, but rather was adjudicated NGRI, that is, determined to have been not criminally responsible for the crime charged, Plaintiff Reed pleads in the alternative a violation of his rights under the Eighth Amendment. 192. The Eighth Amendment sets parameters on punishment of prisoners who are serving a sentence pursuant to conviction of a crime. It prevents state actors from unnecessarily and wantonly inflicting pain upon prisoners. 193. Whether analyzed under Eighth or Fourteenth Amendment standards, however, the use of the taser against Plaintiff Reed multiple times in his cell by Defendants Byrd, Montrose, Jodrey, Kern, Starner, and by Deputy Dishong at the hospital emergency room was unduly and unnecessarily harmful, as well as a wanton infliction of pain that violated his Constitutional right to be free from the use of excessive force. 194. The fact that Defendants Montrose, Jodrey, Kern, and Starner were not the officers who tased Mr. Reed during the incident in his cell does not diminish their culpability. These deputies were present, were active participants in this incident, heard Deputy Byrd threaten to
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tase Mr. Reed if he did not cooperate and therefore, had the opportunity to stop this use of excessive force from occurring.
195. As a direct and proximate result of the excessive use of force by Defendants Byrd, Montrose, Jodrey, Kern, Starner, and Dishong, Plaintiff Reed suffered compensable physical pain and injuries as well as emotional distress.
196. Plaintiff Reed is also entitled to punitive damages because Defendants Byrd, Montrose, Jodrey, Kern, Starner, and Dishong acted with reckless and wanton indifference to Plaintiff’s Eighth or Fourteenth Amendment rights to be free of excessive force. XIII. MICHAEL REED INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
197. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Stobart, and Herrell are all state actors by virtue of their employment with the Franklin County Sheriff’s Office.
198. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Stobart, and Herrell have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified,” as they did in Plaintiff Reed’s case.
b) As in Plaintiff Reed’s case, they fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional
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rights of persons in the custody of the Franklin County Corrections Centers. c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this
Complaint, Defendants Sheriff Karnes, Barrett, Martin, and Herrell have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force. 199. The policies and practices of Defendants Sheriff Karnes, Chief Deputies Barrett, Martin, Klumpp, Forino, Stobart, and Herrell in their official and individual capacities constitutes deliberate indifference that in turn makes Defendant Franklin County accountable for injuries to Plaintiff Reed. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245 - 1246, 1248 (6th Cir. 1989). 200. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klump, Forino, Stobart, and Herrell acted with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiff Reed while acting under color of state law. 201. These actions and failures to act by these Defendants caused Plaintiff Reed to be subjected to excessive and unreasonable force in violation of either the Eighth or Fourteenth Amendments, from which he suffered compensable physical pain and injuries as well as emotional distress. 202. Plaintiff Reed is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff’s Fourteenth Amendment, or in the
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alternative, Eighth Amendment, right to protection against the use of excessive force. XIV. PLAINTIFF DAWN FIORE-BRUNO -STATEMENT OF FACTS
203. Plaintiff Fiore-Bruno has a history of treatment for mental illness as well as a reported history of both physical and sexual abuse.
204. Plaintiff Fiore-Bruno was arrested for disorderly conduct, a misdemeanor, on December 10, 2009. She was brought to FCCC II for booking very early in the morning on that date, around 1:30 am.
205. The video of the booking area shows that before Ms. Fiore-Bruno was brought in, two male deputies can be overheard saying “I love belly shirts” and “they’re hot.”
206. When Ms. Fiore-Bruno arrived she was talking in a loud voice and cursing, but not physically threatening or violent in any way.
207. Two female deputies, Shannon Beaudry and Elizabeth Klein, sat Ms. Fiore-Bruno down on a bench and removed her shoes and socks. Ms. Fiore-Bruno did not resist.
208. Deputies Beaudry and Klein then took Ms. Fiore-Bruno to a line drawn on the floor in front of the booking counter, where she stood without resisting.
209. As she was being escorted to the booking counter Ms. Fiore-Bruno asked if she was being taped and said “I want to be on fucking tape.”
210. Deputies Beaudry and Klein removed Ms. Fiore-Bruno’s belt and searched her pockets. Again, she did not resist.
211. A nurse behind the booking counter asked her if she had any medical problems. Ms. Fiore-Bruno replied “yes.”
212. The nurse asked Ms. Fiore-Bruno, “What are they?” Ms. Fiore-Bruno responded
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“BPD.”5 The nurse asked Ms. Fiore-Bruno if she was going to answer and Ms. Fiore-Bruno responded in a loud voice “what’d you say to me?” The nurse replied, “I’m not gonna keep repeating myself.” Ms. Fiore-Bruno then yelled “I said BPD.” She also called the nurse a “bitch.” The nurse’s response was, “Ok, I’m done. I’m not gonna be talked to like that.”
213. Female deputies Beaudry and Klein, accompanied by male deputies Derek Shively, Jason Brobst, Steven Dean and Keith Miller, took Ms. Fiore-Bruno to a holding cell, placed her face down on the floor and began forcibly stripping off her clothes. Cpl. Lee Vandette was also present in the cell and observing the take-down and stripping of Ms. Fiore-Bruno.
214. As she was being stripped, Ms. Fiore-Bruno constantly yelled for a camera to record the event and accused the deputies of being abusive. Deputy Jason Brobst, who was at Ms. Fiore-Bruno’s right arm, began yelling at her to stop pulling her arm away “and do what you’re told.”
215. Deputy Steven Dean drew his taser and pointed the laser light at Ms. Fiore-Bruno. The two female deputies continued to pull off Ms. Fiore-Bruno’s clothes with male deputies present in the cell as she was being stripped.
216. Ms. Fiore Bruno said, “There’s no reason to make me naked.” At that point, deputies began to roll her over face up while she was topless and Ms. Fiore-Bruno continued yelling, “I want a camera.” Deputy Brobst told her to “Roll over and do what you’re told” and “You’re gonna start doing what you’re told.”
217. As the female deputies began to remove Ms. Fiore-Bruno’s jeans and underwear, she tried to roll over on her stomach. Deputy Dean then placed his taser on her left buttock and drive stunned her.
5 Ms. Fiore-Bruno has been diagnosed with Borderline Personality Disorder (BPD) and a mood disorder.
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218. Four male deputies and two female deputies were present as her jeans and underwear were being removed. Ms. Fiore-Bruno said, crying, “There should not be a male in here.”
219. Deputy Brobst told her “this was all because you refused to do what you were told to do.” Ms. Fiore-Bruno asked “what if I was your sister?”
220. After being stripped completely naked, Ms. Fiore-Bruno was left lying, face down, on the cell floor. A male deputy warned her she would be tased again if she moved before deputies exited the cell. The only clothing they left for her was a safety gown, despite the fact that there was no objective indication that Ms. Fiore-Bruno intended to harm herself in any way.
221. It was unnecessary to escalate Ms. Fiore-Bruno’s booking by subjecting her to this degrading process, during which she was tased for her ineffectual resistance to being forcibly stripped by multiple deputies.
222. Ms. Bruno has a history of physical and sexual abuse and mental illness.6 The process of being forcibly stripped and tased in the presence of male deputies during booking for a misdemeanor arrest was particularly traumatizing and humiliating for Ms. Fiore-Bruno given her history.
223. Tasing Ms. Fiore-Bruno was determined to be a “justified” use of force. XV. DAWN FIORE-BRUNO INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS BEAUDRY, KLEIN, SHIVELY, BROBST, DEAN, MILLER AND VANDETTE
224. At all times relevant to this Complaint, Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette were state actors by virtue of their employment with the Franklin County Sheriff’s Office.
6 This is not uncommon, as studies show that eighty percent of women in prisons and jails have been victims of sexual and physical abuse. Smith, B., “An end to silence: Woman prisoners’ handbook on identifying and addressing sexual misconduct,” National Women’s Law Center (April 1998).
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225. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
226. As an arrestee, Plaintiff Fiore-Bruno was protected by the Fourth Amendment’s protection against use of excessive force by law enforcement.
227. Under the Fourth Amendment, law enforcement officers may only use reasonable force, that is, the amount of force that is reasonable to protect officers from a perceived threat.
228. The use of the taser against Plaintiff Fiore-Bruno by Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette was a willful, callous and gratuitous act that violated Plaintiff Fiore-Bruno’s Fourth Amendment right to be free from the use of excessive force.
229. The fact that Defendants Beaudry, Klein, Shively, Brobst, Miller and Vandette were not the officers who tased Ms. Fiore-Bruno does not diminish their culpability. These deputies were present, were participants in the forced removal of Ms. Fiore-Bruno’s clothing, were aware that Deputy Dean was going to tase Ms. Fiore-Bruno as they were holding her, and had the opportunity to stop it from occurring. As a direct and proximate result of the excessive use of force by Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette, Plaintiff FioreBruno suffered compensable physical pain and injuries as well as emotional distress.
230. Plaintiff Fiore-Bruno is also entitled to punitive damages because Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette acted with reckless indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. XVI. DAWN FIORE-BRUNO INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
231. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Stobart are all state actors by virtue of their employment with the Franklin County Sheriff’s
37

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Office. 232. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and
Stobart have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified,” as they did in Plaintiff Fiore-Bruno’s case.
b) As in Plaintiff Fiore-Bruno’s case, they fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this Complaint, Defendants Sheriff Karnes, Barrett, Martin, and Stobart have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force. 233. The policies and practices of Defendants Sheriff Karnes, Barrett, Martin, Klump, Forino, Williamson, and Stobart in their official and individual capacities constitutes deliberate indifference that in turn makes Defendant Franklin County accountable for injuries to Plaintiff
38

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Fiore-Bruno. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245 - 1246, 1248 (6th Cir. 1989) 234. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klumpp, Forino,
Williamson, and Stobart acted with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiff Fiore-Bruno while acting under color of state law.
235. These actions and failures to act by these Defendants caused Plaintiff Fiore-Bruno to be subjected to excessive and unreasonable force in violation of the Fourth Amendment, from which she suffered compensable physical pain and injuries as well as emotional distress.
236. Plaintiff Fiore-Bruno is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. XVII. JURY DEMAND
237. Plaintiffs Shreve, Worley, Reed and Fiore-Bruno demand a trial by jury of all issues triable by a jury. XVIII. CLASS ACTION ALLEGATIONS AS AGAINST FRANKLIN COUNTY, SHERIFF KARNES, DEPUTY CHIEFS BARRETT AND MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, AND MAJORS HERRELL AND EDGINGTON
238. Plaintiffs Shreve and Worley bring this action on behalf of themselves and on behalf of all others similarly situated solely for declaratory and injunctive relief pursuant to Fed. R. Civ. P. 23(b)(2).
239. Plaintiffs Shreve and Worley represent a class of person defined as follows: a) All persons who, now or at any future time during the pendency of this
litigation, are or will be placed in the custody of the Franklin County Sheriff’s Department at the Franklin County Corrections Centers. 240. The proposed class is so numerous that joinder of all members is impracticable.
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a) Joinder is impracticable here because the class consists of thousands of current and future inmates. Defendant Sheriff Karnes controls the information about the exact number of inmates at the FCCCs, so Plaintiffs Shreve and Worley cannot establish the precise number of class members. However, the 2007 Annual Report of the Franklin County Sheriff’s Office states that the average daily population of the FCCCs is over 1,850 inmates.
b) Because this class action is seeking prospective injunctive relief, the presence of future or unknown members of a proposed class also makes joinder impracticable. 241. There are also questions of law and fact presented in this Complaint that are common to the members of the proposed class. These questions include:
a) Do FCCC deputies routinely use tasers on in violation of the constitutional rights of individuals in their custody?
b) Have the Defendants failed to adequately train and supervise their deputies on the proper use of tasers?
c) Do the Defendants routinely ratify the unconstitutional use of tasers by failing to discipline deputies for improper taser use?
d) Do the Defendants routinely fail to follow their written policy on the use of tasers? 242. The claims of Plaintiffs Shreve and Worley are typical of the claims of the members of the proposed class.
a) Plaintiffs Shreve and Worley’s claims are typical of the claims of the putative class because they, along with all proposed class members, are at risk of having their constitutional rights violated through FCCC deputies’ use of tasers.
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b) Due to FCCC deputies’ widespread, arbitrary, and excessive use of tasers against persons in custody at the Franklin County Corrections Centers, all of the putative class members are similarly at risk of the violation of their constitutional rights and seek the same relief to require the Defendants to discontinue their unconstitutional use of tasers.
c) Plaintiffs Shreve and Worley and the proposed class members would all be proceeding under the same legal theory - that the FCCC deputies’ use of tasers violates the Plaintiffs’ constitutional rights. 243. Defendants have acted or refused to act on grounds generally applicable to the proposed class, thereby making injunctive and declaratory relief appropriate to the class as a whole.
a) Class certification is appropriate here, where all class members are at risk of the violation of their constitutional rights, but their temporary status as arrestees and inmates will frustrate any attempt to achieve systemic declaratory or injunctive relief.
b) Rule 23(b)(2) was formulated to allow for class actions where parties, as here, seek broad injunctive relief to vindicate the civil rights of a large class of individuals. 244. The named Plaintiffs, Shreve and Worley, will fairly and adequately protect the interests of the class. Plaintiffs Shreve and Worley have no interest that is now or may be potentially antagonistic to the interests of the proposed class. 245. Plaintiffs Shreve and Worley are represented by experienced attorneys employed by Ohio Legal Rights Service (OLRS). OLRS lawyers have extensive experience in litigating federal court class action cases involving federal rights and federal civil rights claims.
a) OLRS lawyers have represented clients in many complex litigation matters over several decades, including serving as class counsel. For example, OLRS lawyers have
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served as class counsel for approximately 20 years in Doe v. State of Ohio, Docket No. 2:91-cv-464 (S.D. Ohio), concerning the state’s implementation of its duties under the Individuals with Disabilities Education Act and its funding for special education services. In Rone v. Fireman, Docket No. C75-355A (N.D. Ohio), OLRS successfully represented a class of patients at a state psychiatric hospital against various state agency Defendants to improve conditions at Western Reserve Psychiatric Habilitation Center. Similarly, in Coe v. Hyde, Docket No. C2-87-719 (S.D. Ohio), OLRS lawyers represented a class of patients at Central Ohio Psychiatric Hospital and succeeded in its challenges to the conditions at that facility. In Cleveland v. Ohio Department of Mental Health, Docket No. 89-cv-3658 (Franklin Cty. Common Pleas), OLRS lawyers served as class counsel to challenge the state’s procedures for involuntary medicating individuals with mental illness, and succeeding in obtaining a permanent injunction for the Plaintiff class. Many of these cases involved the vindication of individuals’ constitutional rights through § 1983 litigation, and OLRS’ lawyers extensive involvement in these and other similar cases demonstrates that OLRS lawyers are qualified to represent the Plaintiff class.
b) OLRS has sufficient resources to adequately represent the class. OLRS is an independent state agency created in 1975 by state law to protect and advocate the rights of people with disabilities, and is Ohio’s federally designated Protection and Advocacy system. OLRS Program staff includes ombudspersons, disability rights advocates, and attorneys who advocate for individual and systemic change through individual, group and class action cases, monitoring policies and legislative activity, and providing education and training. OLRS is committed both in time and resources to this litigation to ensure that the current abuses of people with disabilities and other people at the Franklin County
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Corrections Centers are brought to an end. XIX. CLASS ACTION CLAIM OF ROBERT SHREVE AND MICHAEL WORLEY ON BEHALF OF A PROPOSED CLASS UNDER 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF KARNES, BARRETT, MARTIN, KLUMPP, FORINO, STOBART, WILLIAMSON, , HANES, HERRELL AND EDGINGTON IN THEIR OFFICIAL CAPACITIES
246. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Hanes, Herrell, and Edgington are all state actors by virtue of their employment with the Franklin County Sheriff’s Office.
247. Corrections deputies at the Franklin County Corrections Centers have subjected Plaintiffs Shreve and Worley, and will continue to subject members of the proposed class, to the abusive and excessive use of tasers in a manner that constitutes excessive, unreasonable and disproportionate force; recklessly and wantonly inflicts mental pain, emotional distress and trauma; is malicious and sadistic; inflicts corporal punishment for minor violations; violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from wellestablished standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of arrestees and inmates; and violates the Constitutional rights of those persons in the custody of the Franklin County Corrections Centers, in violation of their rights under the Fourth, Eighth and Fourteenth Amendments as enforced through 42 U.S.C. § 1983.
248. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Hanes, Herrell and Edgington have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified.”
b) They fail to discipline deputies whose use of tasers violates the Franklin County
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Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) They have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force. 249. The policies and practices of Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Hanes, Herrell and Edgington in their official capacities in turn make Defendant Franklin County accountable for the harm to Plaintiffs Shreve and Worley and members of the proposed class. 250. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Hanes, Herrell and Edgington, under color of state law, have acted and continue to act with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiffs Shreve and Worley and members of the proposed class. 251. These actions and failures to act by these Defendants have caused Plaintiffs Shreve and Worley and will continue to cause members of the proposed class to be subjected to excessive and unreasonable force in violation of the Fourth, Eighth and Fourteenth Amendments.
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XX. NEED FOR DECLARATORY AND INJUNCTIVE RELIEF 252. The practices involving misuse of tasers discussed in this Complaint are ongoing
because the culture at the Franklin County Sheriff’s Office fosters them. 253. There is no accountability for the misuse of tasers by Franklin County corrections
deputies. These practices have repeatedly been found to be “justified” by the chain of command at the Franklin County Sheriff’s Office, including facility commanders, the Internal Affairs Bureau and the Chief Deputy of Corrections. Out of a sample of 180 use of force reports involving tasers since January 1, 2008, the use of force was found “not justified” in fewer than a handful of cases.
254. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Stobart, Williamson, Majors Hanes, Herrell and Edgington have repeatedly authorized and ratified the custom, policy and practice of misuse of tasers by the corrections deputies whom they supervise and for whom they set policy.
255. These Defendants also have failed to adequately train and supervise corrections deputies to use tasers in a manner that is safe, appropriate, conforms to policy and adheres to Constitutional standards for use of force. By their actions, and their failures to act, these Defendants have been and remain deliberately indifferent to the risk of violating the Constitutional rights of Plaintiffs Shreve and Worley and the members of the proposed Plaintiff class.
256. The deliberate indifference of Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Hanes, Herrell and Edgington results in the failure to adequately train, supervise and discipline corrections deputies in their use of tasers has caused and will continue to cause violations of the Constitutional rights of Plaintiffs Shreve and Worley and the members of the proposed Plaintiff class.
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257. These ongoing practices present the real threat of physical injury and psychological trauma to individuals who currently are in custody at the Franklin County Corrections Centers or will be in custody of the Franklin County Correction Centers during the pendency of this litigation.
258. Plaintiffs Shreve and Worley, as well as the members of the proposed class, are entitled to declaratory and injunctive relief. Defendants have engaged and are continuing to engage in the challenged policies and practices that were used against Plaintiffs Shreve and Worley.
259. Defendants have acted and, without immediate injunctive relief, will continue to act under color of state law to deprive Plaintiffs Shreve and Worley and the members of the proposed class of their Constitutional rights to be free of excessive force.
260. Plaintiffs Shreve and Worley and the members of the proposed class have no adequate remedy at law. In the absence of injunctive relief they will continue to suffer the real threat of irreparable harm as a result of the existence of a policy and practice that encourages and approves the misuse of tasers by Franklin County Corrections deputies. XXI. PRAYER FOR RELIEF
Therefore, Plaintiffs request that this Court: A. Assume jurisdiction over this matter; B. Certify the proposed class as: All persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriff’s Department at the Franklin County Corrections Centers; C. Issue a declaratory judgment holding that the Defendants have violated the rights of Plaintiffs Shreve and Worley and the proposed class under the United States Constitution as enforced through 42 U.S.C. § 1983;
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D. Issue such temporary or preliminary relief as requested by Plaintiffs Shreve and Worley in the course of these proceedings to prevent irreparable harm from occurring to them and the proposed class;
E. Enjoin the Defendants from continuing to violate the Constitutional rights of Plaintiffs Shreve and Worley and the members of the proposed class as set forth in this Complaint;
F. Enjoin the Defendants from continuing to violate their own policy on use of the X26 taser;
G. Appoint an expert with extensive experience in corrections who is not associated with any party to this action to monitor, review, and oversee all use of force reports involving deployment of tasers by Franklin County Sheriff’s corrections deputies and to recommend appropriate discipline and conduct training of deputies where warranted;
H. Grant judgment in favor of Plaintiffs Shreve, Worley, Reed and Fiore-Bruno, and against the Defendants, individually and collectively, for compensatory damages for Plaintiffs’ injuries, pain and suffering and emotional distress in an amount to be proven at trial;
I. Award punitive damages to Plaintiffs Shreve, Worley, Reed and Fiore-Bruno and against the Defendants, individually and collectively, in an amount to be proven at trial;
J. Award Plaintiffs their attorneys’ fees and costs as permitted by law; and K. Provide such other relief as is just and equitable.
Respectfully submitted, s/ Jane P. Perry Jane P. Perry (0029698) jperry@olrs.state.oh.us Trial Attorney for Plaintiffs Kristen N. Henry (0082382) khenry@olrs.state.oh.us
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Case: 2:10-cv-00644-EAS-MRA Doc #: 71 Filed: 12/15/10 Page: 48 of 49 PAGEID #: 1660 Kerstin Sjoberg-Witt (0076405) ksjoberg-witt@olrs.state.oh.us Legal Director OHIO LEGAL RIGHTS SERVICE 50 W. Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-7264 - telephone (614) 644-1888 - fax
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CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing Second Amended Individual Complaint for Damages and Second Amended Class Action Complaint for Declaratory and Injunctive Relief was filed on December 15, 2010, with the Clerk of Court using the CM/ECF system, which will provide notice of such filing to all registered parties.
s/Jane P. Perry Jane P. Perry (0029698) jperry@olrs.state.oh.us Trial Attorney for Plaintiffs
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 Case: 2:10-cv-00644-EAS-MRA Doc #: 95-1 Filed: 02/04/11 Page: 1 of 5 PAGEID #: 1921

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Shreve, et al.,

:

Case No. 2:10-cv-644

Plaintiffs,

:

-vs-

:

Judge: Sargus

Franklin County, Ohio et al.,

:

Defendants.

:

Magistrate Judge: Abel

AGREEMENT BETWEEN PLAINTIFFS AND DEFENDANTS This agreement is entered into by Plaintiffs Robert Shreve and Michael Worley as Class Representatives in the matter of Shreve et al. v. Franklin County, Ohio et al. on behalf of the certified class, defined as: “All persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriff’s Office at the Franklin County Corrections Centers” (hereinafter Plaintiffs), and by Defendants Franklin County, Sheriff Karnes, Chief Deputy Barrett, Chief Deputy Martin, Lt. Klump, Lt. Forino, Major Stobart, Sgt. Williamson, Major Hanes, Major Herrell, and Major Edgington in their Official Capacities and their successors (hereinafter FCSO). This agreement shall be subject to the approval of the Court pursuant to Fed. R. Civ. P. 23(e), and Plaintiffs and FCSO agree to support this agreement in any such proceeding. Plaintiffs and FCSO hereby incorporate by reference Sections I, II, III, V, and VI of the Agreement Between the United States of America and the Sheriff of Franklin County, Ohio entered into on February 4, 2011 and attached hereto and agree that those Sections will form the basis of the agreement herein.

Case: 2:10-cv-00644-EAS-MRA Doc #: 95-1 Filed: 02/04/11 Page: 2 of 5 PAGEID #: 1922
Plaintiffs and FCSO further agree to the following: 1. FCSO shall provide contemporaneously to Plaintiffs all materials provided to DOJ pursuant to the Implementation and Compliance Section IV of the attached Agreement Between the United States of America and the Sheriff of Franklin County, Ohio. Upon request by Plaintiffs, FCSO also shall provide to Plaintiffs policies, training materials and courses, and FCSO records regarding Taser use in a timely manner not to exceed 30 days. 2. FCSO shall notify counsel for the Plaintiffs of any scheduled DOJ compliance visit and counsel for the Plaintiffs may be present during all DOJ compliance visits. 3. If Plaintiffs determine that FCSO is not in compliance with this Agreement, Plaintiffs shall provide a Notice of Non-compliance to FCSO. During the 30 days following the receipt of a Notice of Non-compliance, the Plaintiffs and FCSO shall coordinate and discuss any areas of disagreement and attempt to resolve outstanding differences. However, in the case of an emergency posing an immediate threat to the health and safety of inmates, Plaintiffs may seek enforcement action without regard to the notice and negotiation requirements herein. 4. If the parties cannot reach an agreement within the 30 days following the receipt of a Notice of Non-compliance, the parties agree to enter into mediation under the direction of a magistrate judge or any other neutral party appointed by the Court and to engage in good faith negotiations with such a mediator to resolve such differences promptly and effectively. These negotiations will last for a maximum of 30 days from the inception of the proceedings. 5. If Plaintiffs and FCSO fail to reach an agreement at the conclusion of mediation, Plaintiffs are not limited in any fashion in pursuing compliance with this agreement without further notice, including any adverse litigation against FCSO and/or seeking appropriate enforcement of any provision of this agreement.
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Case: 2:10-cv-00644-EAS-MRA Doc #: 95-1 Filed: 02/04/11 Page: 3 of 5 PAGEID #: 1923 6. Within 30 days of the effective date of this Agreement, FCSO shall pay to Ohio
Legal Rights Service $30,000 as costs associated with the litigation of Plaintiffs claim for injunctive relief. This Agreement shall not establish prevailing party status for Plaintiffs for purposes of attorney fees or costs. Plaintiffs reserve the right to seek attorney fees and costs for further proceedings in this matter with regard to the individual claims for damages and entity liability, or any subsequent action to seek compliance with this Agreement. FCSO reserves all defenses related to any claim to fees and costs made by the Plaintiffs in the future.
The Parties have read all of the foregoing, understand the same, and agree to all of the provisions contained herein.
Remainder of Page Left Blank Signature Pages Follow
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Plaintiffs on behalf of the Certified Class:
ROBERT SHREVE
MICHAEL WORLEY
Approved by Counsel for the Certified Class:
Jane P. Perry (0029698) jperry@olrs.state.oh.us Trial Attorney for Plaintiffs Kristen N. Henry (0082382) khenry@olrs.state.oh.us Kerstin Sjoberg-Witt (0076405) ksjoberg-witt@olrs.state.oh.us Legal Director OHIO LEGAL RIGHTS SERVICE 50 W. Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-7264 - telephone (614) 644-1888 - fax
4

Case: 2:10-cv-00644-EAS-MRA Doc #: 95-1 Filed: 02/04/11 Page: 5 of 5 PAGEID #: 1925 On behalf of the Defendants: JAMES A. KARNES SHERIFF, FRANKLIN COUNTY, OHIO
5

 
 Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 1 of 14 PAGEID #: 1901

AGREEMENT BETWEEN
THE UNITED STATES OF AMERICA AND
THE SHERIFF OF FRANKLIN COUNTY, OIDO.

I. INTRODUCTION

1. The parties to this Agreement are the United States of America, represented by the United States Department ofJustice (,'DO],') and the Sheriff of Franklin County, Ohio.

2. The Sheriff, Jim Karnes, of Franklin County is the elected officer responsible for the operations ofthe Franklin County Sheriffs Office ("FCSO"), Franklin County Correctional Center I ("FeeC I"), and Franklin County Correctional Center II ("FCCC II"). The Sheriff shall require that employees and contractors ofFCSO take all actions necessary to comply with the provisions ofthis Agreement. The provisions of this agreement shall only apply to the deployment of electrically charged weapons, popularly referred to as CEDs, in FCCC I and FCCC II.

3. On July 16, 2010, Robert Shreve, Michael Reed, and Dawn Fiore-Bruno, et. aI.,

,i .

submitted a Complaint in the United States District Court for the Southern District of
Ohio (Eastern Division). The civil action was filed pursuant to 42 U.S.c. § 1983. In

I

an amended complaint filed August 27, 2010, Michael Worley was named as a plaintiff and a class representative seeking injunctive relief The plaintiffs alleged

that FCSO deputies engage in the excessive and disproportionate use of force, in

violation of rights guaranteed by the Fourth, Eighth, and Fourteenth Amendments to

the Constitution ofthe United States. Specifically, they alleged that FCSO deputies

frequently rely on CEDs without proper justification. The Defendants have denied all

allegations.

4. On December 14,2010, the United States intervened in Shreve, et al., v. Franklin
County, Ohio, el 0/., No.2: 10-cv-644 (S.D. Ohio, filed July 16, 2010). The United
States intervened pursuant to the Violent Crime Control and Law Enforcement Act of 1994,42 U.S.C. § 14141.

5. DOJ recognizes the Sheriffs high level of cooperation and willingness to enter into this Agreement without need for litigation. As a result of this cooperation, the parties believe this Agreement represents the best opportunity to address the United States' concerns with FCSO training and use ofCEDs. Neither the Sheriffs entry into this Agreement, nor the Sheriff's decision to implement changes to FCSO policies and procedures, constitutes an admission by the Sheriff, FCSO, or any officer or employee ofFCSO, that they have engaged in any .unconstitutional, illegal or otherwise improper activities or conduct.

1

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6. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action, and accordingly, no person or entity may assert any claim or right as a beneficiary or protected class under this Agreement. This Agreement is not intended to impair or expand the right of any person or organization to seek relief against the Sheriff or his officials, employees, or contractors for their conduct. This Agreement does not aher legal standards governing any such claims, including those standards established by Federal or Ohio law.
7. The parties agree that it is in their mutual interests to avoid litigation. The parties further agree that resolution of this matter pursuant to this Agreement is in the best interests ofFCSO, persons brought into FCCC I and FCCC II for processing.and acceptance into the facilities, or those who are confined in FCCC I and FCCC II. Now, therefore, pursuant to Fed. R. Civ. P. 41(a)(2), the parties hereby agree to file this Agreement in the United States District Court for the Southern District of Ohio, together with a motion to conditionally dismiss the Complaint under the conditions set forth in this Agreement. The parties further agree that this case will remain on the Court's inactive docket during the term of, and subject to, this Agreement, and that, from time to time, the Court may hold, at the request of either party, status conferences for the sole purpose of assisting the parties to infonnally resolve disputes, if any, until this Agreement terminates. The Court will retain jurisdiction only to resolve disputes between the parties, in accordance with the dispute resolution provisions set forth in Section TV of this Agreement.
8. Nothing in this Agreement is intended to alter any existing collective bargaining agreements, or equivalents thereof, between the Sheriff and the FCSO employee bargaining unit or impair the collective bargaining rights, or the equivalents thereof, of employees in those units under state and local law, including FCSO employees' right to notice of, and representation during, interviews, as appropriate. •
9. It is the explicit intention of the Parties to this Agreement /that this Agreement is binding on the Sheriff's successors, should the Agreement exceed the length of Sheriff Karnes's term as Sheriff.
ll. DEFINITIONS
10. ( "FCSO" shall refer to the Franklin County Sheriff's Office, Franklin County, Ohio.
II. "FCCC I" shall refer to Franklin County Correctional Center I, located at 370 S. Front Street, Columbus, Ohio.
12. "FCCC II" shall refer to Franklin County Correctional Center II, located at 2460 Jackson Pike, Columbus, Ohio.
13. "Sheriff' shall refer to the Franklin County Sheriff and his or her deputies, employees (sworn and unsworn), contractors, and successors in office.
2

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 3 of 14 PAGEID #: 1903
14. "Deputy Sheriffs" or "deputies" shall refer to sworn deputies of all ranks of the FCSO.
15. "DOJ" shall refer to the United States Department of Justice, which represents the United S.tates in this matter.
16. "CEDs" snail refer to "conducted energy devices" currently used by FCSO, or any other similar type or model of electro-muscular disruption weapons, or its equivalent, employed by FCSO during the pendency of this Agreement.
17. "Subject" shall refer to the person against whom the CED is deployed.
18. "Include" or "including" shall mean "include, but not limited to" or "including, but not limited to."
19. "Drive Stun" shall refer to the use of the CED in which the deputy removes the cartridge (or the cartridge remains on the CED but the probes have a lready been deployed) and presses the weapon against the subject's body.
20. "Effective date" s~all mean the date this Agreement is signed by all the parties.
21. "FCSO TASER Policy" shall mean the FCSO written Use afForce Po licy that covers · CEO use.
22. "Active Aggression" shall mean a threat or overt act of an assault (through physical or verbal means), coupled with the present ability to carry out the threat or assau lt, which reasonably indicates that an assault or injury to any person is likely to occur. .
23. "lAB" shall refer to FCSO's Internal Affairs Bureau deputies.
24. "Spark Test" shall refer to the pre-operational check of the CED, and includes removing the cartridge of the CEO, pointing the CED in a safe direction, and pulling the trigger to ensure that the electrodes are working.
,
25. "Train" means to instruct in the skills addressed to a level that the trainee has the demonstrated proficiency to implement those skills as and when called for in the training. "Trained" means to have achieved such proficiency.
26. "Interpersonal Communication (IPC)" shall mean skills designed to allow for the deescalation of any given situation, with the purpose of avoiding the need for the use of force.
27. "Boilerplate" shall refer to language that is stock andlor fonnulaic and fails to attest to the unique facts of a use afforce incident.
3

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 4 of 14 PAGEID #: 1904

28. Throughout this Agreement, the following tenns are used when discussing compliance: substantial compliance, partial compliance, and non·compliance. "Substantial compliance" indicates that FCSO has achieved compliance with most or all components of the relevant provision of the Agreement. "Partial compliance" indicates that compliance has been achieved on some of the components of the relevant provision of the Agreement, but significant work remains. "Noncompliance" indicates that most or all ofthe components of the Agreement provision have not yet been met.

III. SUBSTANTIVE PROVISIONS

A. FCSO TASER POLICY: the Sheriffshall develop, implement, provide training on, and enforce policies that have been provided to OOl These policies shall comply with the following:

i

29. Constitutional Standard: FCSO's Taser policy shall explain Fourth, Eighth, and

I

Fourteenth Amendment standards regarding the use afforce, specifically stating that CED deployment be constitutionally appropriate in light of the facts and

i

circumstances surrounding the deployment.

30. Absent exigent and exceptional circumstances, the CEO shall not be deployed against any person who is not reasonably perceived to pose a threat to the safety of the deputy or others and is not resisting by use of physical force or by displaying'Active Aggression against the deputy or others, or who questions a deputy's commands in a non·violent manner, or who remains in a limp or prone position. When such exigent and exceptional circumstances exist, [PC and alternative fonns of force or control techniques shall be considered first and rejected only if there is an objectively reasonable basis that alternative forms afforce or control techniques would be unsafe. Exigent and exceptional circumstances may include an immediate enforcement necessity that cannot be safely achieved by alternative forms of force or control techniques.

a. "Alternative forms afforce or control techniques" shall include the following:

i.

escort technique

II.

soft empty hand control

III.

handcuffing

iv.

pressure point techniques

b. Factors to be considered before deploying the CEO in the exigent and exceptional ~ circumstances described in this Section: When considering alternative forms of force or control techniques and whether there is an objectively reasonably basis for whether they would be unsafe, the deputy deploying the CEO shall consider factors that include: subject's age; prior behavior; size; charges (if known); number of other deputies available; location of the event; ability to place subject in a secure cell; immediate enforcement necessity.

4

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 5 of 14 PAGEID #: 1905
c. If IPC and alternative forms of force or control techniques have been considered and rejected as described above, a CED shall not be deployed in the exigent and exceptional circumstances described in this Section unless the deputy deploying the CED has taken the following steps: ensured that a lawful, direct command was clearly given; reasonably perceived that the subject heard the command; reasonably perceived that the subject understood the command; repeated the command at least once; provided for the filming or recording of the incident (unless impracticable); verbally warned the subject that he or she would be subject to tasing; performed an arc/display of the CED (unless impracticable).
d. If alternative forms of force or control techniques are not used, the deputy who deployed the CED in such exigent and exceptional circumstances shall articulate in the use of force reporting (1) why other alternative forms of force or control techniques were considered but rejected, and (2) why the deputy had to use the CED.
e. Post-CED deployment review: lAB shall immediately alert the Chief of Investigation upon receiving notification that FCSO applied a CED pursuant to the provisions of this Section. The Chief of Investigation shall conduct a thorough review that includes reviewing any available use of force videos, and reading the entire use of force report. If, upon review, it appears that CED deployment pursuant to this Section was unwarranted, the Chief of Investigation shall recommend that the "lAB conduct a full investigation of this use offorce. If, upon review, the ~hief ofInvestigation determines that no investigation is warranted, the Chief shall articulate in writing the basis for that conclusion.
31. CED Deployment Against Certain Subjects: Consistent with the appropriate constitutional standard, FCSO's TASER policy shall prohibit the deployment of the CED, except when there is an objectively reasonable threat to an individual's safety, a display of active aggression, or an attempt to flee or escape, against the following:
a. Subjects situated in an environment such that the subject's fall may cause substantial injury or death (e.g., standing on an elevated or unstable surface; standing in or near an object that may cause serious bodily injury; or climbing a fence or wall);
b. Subjects known or reasonably believed to be pregnant; or
c. Subjects who have a mental or physical impairment or are intoxicated due to drugs or alcohol suth that it is reasonably perceived to be impossible or impracticable to comply with an order. A deputy shall consider any known or apparent mental or physical impairment or intoxication due to drugs or alcohol in determining whether there is an objectively reasonable ·basis to deploy the CEO.
32. Restrained Subjects: FCSO's CEO policy shall prohibit CEO deployment against
handcuffed or otherwise ,manually or mechanically restrained subjects unless: vI) the
5

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 6 of 14 PAGEID #: 1906
restrained subject is endangering the safety of the deputy o r others by attempting to employ physical force that is reasonab ly perceived to pose a threat of injury to a deputy, the subject, or others; or (2) it is the constitutionally proportionate amount of force necessary to overcome resistance to a legitimate penological purpose.
33. CEO Deployment Practices: FCSO's TASER policy shall :
a. require th at reasonable efforts be made to minimize the numbe r of CEO exposures;
b. instruct deputies to use the lowest number of CED exposures that are objectively reasonable to accompl ish lawful obj ectives;
c. instruct deputies to pause and eva luate the situation after the initial application of' the CEO before attempting another application, unless the subject presents an imminent risk of bodily harm that prevents such evaluation;
d. prohibit restraint techniques that w ill impair a subject's respiration after the subj ect has been subdued fo llowing a CEO dep loyment;
e. prohibit the use of a CEO unless it is the constitutionally proportionate amount of force necessary to overcome resistance; and
f. prohibit the use of a CED as a punitive, abusive, or retaliatory measure.
34. FCSO shall enforce its existing policy regarding the evaluation of sui cide risk assessment and whether such assessment requires a subj ect to be placed in a safety gow n.
35. The FCSO TASER pol icy shall require deputies to articulate the fo llow ing in completing their use of force reports:
a. describe the facts that were known by the deputy at the time the CEO was deployed;
b. describe the level of threat perceived by the deputy at the time the CEO was deployed;
c. describe what alternative types of force or contro l techniques they considered and why those types of force were rejected;
d. require deputies to fill out a use of force report following the use of a CEO that sets forth each deputy's independent observation regarding the use of the CEO that is based solely upon the deputy's understanding and perception of the circumstances surrounding the incident;
6

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 7 of 14 PAGEID #: 1907

e. require an effort by a deputy, other than the deputy who deployed the CED, to obtain a written inmate statement following a use of a CED; and
f. make clear that the deputy involved in the use of a CED does not approve, but is ~uthorized to receive and convey, any use of force reports associated with the use aCED.

36. Responsibilities ofInternai Affairs Bureau: FCSO's CED policy shall require its Internal Affairs Bureau to:

a. be trained in usage of the CED; and

b. evaluate all CED deployments by a deputy or supervisor by:

I. securing and reviewing any videos, if utilized;
11. reviewing all relevant use of force reports;
III. reviewing photographs of all relevant evidence, including, when po~sible, impact points of the CED probes before and after removal from the subject;
IV. completing a written report of findings f~llowing each assessment ofCED deployment that includes a statement/finding of the following:

1. a summary review of the incident;

2. the reason for the use of force;

3. whether the subject was actively resisting or exhibiting Active Aggression, and -if so, how;

4. a comparison of any videos to the use of force reports, which notes any inconsistencies; and

5. whether the use of force complied with all respects of the FCSO CEO and Use of Force Policies, with an exp lanation of the reasons for this statement/finding.

v. ensuring that the deputy places the spent CED cartridge and probes into evidence control;

VI. instructing deputies to produce the CED to download the CED deployment

data to assess the time of the deployment, the number of deployments, and

the duration of each deployment;

,

7

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 8 of 14 PAGEID #: 1908
VII. ensuring that if a violation of law or po li cy is suspected, the incident is immediately authorized for a full investigation; and
VIII. in any incident in which the reviewing supervisor or lAB believes that there may have been a violation ofFCSO policy, interviewing the deputy, the subject, and other witnesses in a timely manner.
37. Med ical and Mental Health Responses: PCSO's TASER policy shall ensure:
a. that subjects receive an adequate post-deployment medical evaluation; and
b. that subjects are referred for a mental health evaluation if recomme nded by the evaluating medical provider.
B. FCSO TASER TRAINING: the Sheriff shall demonstrate substantial compliance with the following:
38. PCSO agrees to continue to issue CEOs only to corrections deputies who have taken and successfully completed the CEO training course.
39. FCSO agrees that PCSO's annual in-service training requirements wil l include train ing w ith regard to proper CEO use as part of the use of force train ing module for those deputies who have been issued CEOs.
40. PCSO agrees to maintain records of CEO certification.
41. PCSO agrees to not rely solely- upon the CEO manufacturer's printed and electronic training materials. In addition to the materials from the CEO manufacturer, PCSO shall develop and implement its own training program, which may include materials from other law enforcement or corrections departments. The PCSO training program will include testing procedures to best develop the CEO knowledge, skills of its deputies as tailored fo r the needs of FCSO, and deputies' understanding of when CEOs should be deployed in relation to other uses of force under Federal Constitutional standards.
42. FCSO agrees to train deputies to avoid mUltiple activations and continuous cycli ng of theCED.
43. FeSO training shall incorporate practical scenario-based training exercises to drill deputies on CEO deployment skills. For example, deputies shall be instructed, drilled, and tested on how to:
a. give a verbal warning to the subject and other deputies;
b. work together with other deputies as a team;
8

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 9 of 14 PAGEID #: 1909
c. use the constitutionally proportionate level of force objectively necessary to safely resolve a situation;
d. pause and assess the situation after deploying aCED; e. assess subjects for physical and mental conditions that may make the use of a
CED undesirable; f. recognize symptoms of mental illness and physical impairment; and g. use IPC, de-escalation, or regrouping techniques in addition to tactics involving
the use of aCED. 44. FCSO agrees to continue supervisor training dedicated to supervisor response and
documentation of the incident. The course material shall cover such aspects of supervisor response and documentation as: a. obtaining written statements from all involved deputies, witnesses, and the
subject; b. completing a use of force report summary; and
c. obtaining photographs and use offorceiCED forms. 45. FCSO agrees to routinely update and review CED policies and training materials. C. FCSO TASER ACCOUNTABILITY PROCESSES: the Sheriff shall demonstrate
substantial compliance with the following: 46. FCSO will continue to use its use of force form that records CED information,
including: a. the serial number of the CED and CED cartridge; h. information regarding the deployment (e.g. unholstered only, unholstered and
deployed and hit or missed target); c. distance from subject and environment of the location; d. number of cycles deployed; e. whether a drive-stun was employed; f. a detailed description of the resistance demonstrated by the subject and the
specific facts surrounding the CED deployment without use of boilerpiate language;
9

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 10 of 14 PAGEID #: 1910
g. statements from the subject;
h. injuries and medical care provided;
J. names of witnesses;
J. type of crime, infraction, or violatio n involved; and
k. type of c lothing worn by subject.
47. FCSO shall perform a thorough, independent investigation of all CED cases in which:
a. the subject dies or suffers serious bodily injury after application of the CED;
b. a subject is subj ected to prolonged or multiple applications of the CED when the necessity of such application is not apparent;
. c. the CED appears to have been used in a punitive, abusive, or retal iatory manner; or
d. there appears to be a material deviation from FCSO TASER po licy.
48. FCSO shall down load the data from a CED after every CED application other than spark tests.
IV. IMl'LEMENTATION AND COMPLIANCE
49. Substantial compliance with this Agreement will be based on the entirety of the Agreement. Sub-paragraphs are not severable.
50. Within one month of the effective date of this Agreement, FCSO shall commun icate to all FCSO corrections and lAB employees, and others implicated by this Agreement, the requirements set forth in this Agreement.
51. Within three months of the effective date of this Agreement, FCSO shall provide its policies to DOl, and shaH also provide DOJ and its law enforcement consultants with access to FCCC 1, FCCC II, and the tra ining divisions to assess FCSO's level of compli ance w ith the terms of this Agreement. PCSO's counsel, Plaintiffs' counsel, and coun sel for the Fraternal O~der of Police may be present during all DO} compliance visits, with the exception of any detainee interviews, if app licab le. DOJ may issue a written report 45 days afte r the end of the initial compliance visit and subsequent comp liance visits. All written reports shall include findings of substantial compliance or non -compliance with respect to each prov ision of this Agreement. When appropriate, DOJ will provide FCSO with recommendations and technical ass istance that may help it meet the substantive req uirements of this Agreement.
to

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 11 of 14 PAGEID #: 1911
52. IfDOJ detennines that FCSO is not in substantial compliance with the provisions of th is Agreement, 001 shall so state in its written report and provide the factual basis for the findings, including, as appropriate: the identities ofFCSO deputies involved; dates and times of incidents; and a summary specifying the documents and records 001 reviewed and the interviews 001 conducted that support DOl's determination.
53. rfDOJ determines that FCSO is in substantial compliance with all provisions ofthis Agreement, DO] shall so state and provide the factua l bas is for the findings, including a summary specifying the documents and records 001 reviewed and the interviews DO] conducted that support DOl's determination.
54. Prior to any compliance visit, DOJ shall provide 10 days written notice to FCSO. Withi n seven days in advance of the visit, DOJ shall identify any law enforcement consultants who w ill participate in the visit.
55. 001 and its law enforcement consultants shall have full and complete access to FCSO policies, training materials and courses, FCSO records regard ing CED use, and FCSO employees, pursuant to paragraph 8, upon reasonable notice to FCSO, pursuant to paragraph 51 above, for the purpose of ascertaining compliance with th.is Agreement.
56. FCSO shall provide 001 with FCSO records regarding CED use on a quarterly basis. DO] shall usc FCSO records regarding CED use to identify and track trends in CED use offorce. Upon DOl's recommendat ion, FCSO shall conduct an investigation to determine whether training opportunities or policy arid practice improvements are warranted.
57. FCSO shall respond to any written questions from DOJ concerning FCSO's' compliance with this Agreement w ithin 30 days of receipt of such written questions : FCSO shall provide DO] with access to any requested documents regarding FCSO's compliance with the requirements of th is Agreement.
58. FCSO shall maintain sufficient records to document its compliance with all of the requirements of this Agreement, for the duration of the Agreement.
59. FCSO shall designate a comp liance coordinator to serve as the single point of contact to 001 and to oversee the implementation of this Agreement.
60. DOl and FCSO agree to defend the provisions of this Agreement. DOl and FCSO shall notify each other of any court challenge to this Agreement. In the event any
~ provision ofthis Agreement is challenged in any local or state court, removal to a federal court shall be sought.
61. This Agreement shall be binding on all successors, ass ignees, employees, contractors, and all those wo rking for, or on behalf of, FCSO.
II

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 12 of 14 PAGEID #: 1912
62. In the event any provision of this Agreement is declared invalid fo r any reason by a court of competent jurisdiction, said finding shall not affect the remai ning provisions of thi s Agreement.
63. Each party to th is Agreement shall bear the cost of their fees and expenses incurred in connection w ith this Agreement .
64. Throughout the duration of the Agreement, DOJ and its expert law enforcement consultants shal l maintain the confidentiality of all information provided pursuant to this Agreement consistent with state and federal law and consistent w ith the law enforcement responsibilities ofDOJ.
65. The parties agree that FCSO will make all good faith efforts to immediately implement and achieve substantial compliance with all substantive requirements of Section III of this Agreement, and the parties anticipate that FCSO wi ll attain substantial comp liance with all provisions of the Agreement within six months of the effective date of this Agreement.
66. lfDOJ maintains that FCSO has failed to carry out any req uirement of thi s Agreement, DOJ shall notify FCSO of any instance(s) in which it maintains that FCSO has fa iled to carry out the requirements of this Agreement by provid ing a written !'Jotice ofNon·Compliance.
,
67. FCSO shall take substantial steps to ct;mect a claim by DOJ pursuant to the terms of this Agreement within a reasonable time, but in no event more than 30 days from receipt of a Notice of Non·Compliance. During the 30 days fo llowing receipt of a Notice of Non·Compliance, DOJ and FCSO shall coordinate and discuss any areas of disagreement and attempt to resolve outstanding differences. However, in the case of an emergency pos ing an immediate threat to the health and safety of inmates, DOJ may seek enforcement action without regard to the notice and negotiation requirements herein. ,
68. If the parties cannot reach an agreement with in the 30 days following the receipt of a Notice ofNon -Compliance, the parties agree to enter into mediation under the direction of a magistrate judge or any other neutral party appointed by the Court and to engage in good faith negotiations with such a mediator to resolve such differences promptly and effectively. These negotiations wi ll last for a maximum of30 days from the inception of the proceedings.
69. If DOJ and FCSO fai l to reach an agreement at the conclusion of mediation, DO] is not lim ited in any fashion in pursuing its law enforcement obligations wi thout further notice, including any adverse liti gation against FCSO or seeking appropriate enforcement of any provision of this Agreement. Any such adverse litigation or enforcement shall be lim ited to post-agreement com pliance.
12

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 13 of 14 PAGEID #: 1913
V. TERMINATION
70. The parties agree that upon FCSO reaching substantial compliance with all provisions in this Agreement, DO] will then continue to rev iew FCSO's com pliance for a period of two years to assess the sustainability of the reforms.
71. The Agreement will terminate after 001 finds that FCSO is in substantial compliance with each of the provisions of this Agreement and has maintained substantial comp liance for at least two years. Non-compliance with mere technicalities, or temporary fai lure to comply during a period of otherwise sustained compliance, will not constitute fai lure to maintain substantial compliance. Temporary comp liance during a period of otherwise sustained non-compl iance will not const itute substantial comp liance.
72. If at any time FeSO maintains that it has reached substantial compl iance w ith th is Agreement and has maintained substantial compliance with th is Agreement for two years, it may file a motion to term inate the Agreement with the Court, but on ly after prov iding DOJ with 30 days notice of its intent to file such a motion, during wh ich period DO] and FCSO shall coordinate and discuss any areas of disagreement and attempt to resolve the .outstanding differences.
73. Failure by any party to enforce this ent ire Agreement, or any prov ision thereof, with respect to any deadline or any other provis ion herein shall not be construed as a waiver of its right to enforce other deadlines and provisions of this Agreement.
VI. STIPULATION PURSUANT T O THE PRlSON LITIGATION REFORM ACT, 18 U.S.C. § 3626
74. For the purposes of this Agreement on ly and in order to sett le this maner, the parties stipu late that this Agreement comp lies in all respects with the provisions of 18 U.S.C.
§ 3626(a). T he parties furt her stipulate and agree that the prospective relief in this
Agreement is narrowly drawn, extends no further than necessary to address the violations of federal rights alleged by the United States, is the least intrusive means necessary to address these alleged violations, and is not intended to have an adverse impact on public safety or the operation of a criminal justice system. Accord ingly, the parties agree and represent that the Agreement complies in all respects with the prov isions of 18 U.S.C. § 3626(a).
13

Case: 2:10-cv-00644-EAS-MRA Doc #: 94-1 Filed: 02/04/11 Page: 14 of 14 PAGEID #: 1914

~~ MillS A. KARNES Sheriff Franklin County Sherifrs Office

Respectfully submitted,
THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Attome' General Civil Ri hIP,',."",

TAt\i!MIE M. GREGG Principal Deputy Chief Special Litigation Section
~ ;T.-<: ..
AARON FLEISHER ANIKAGZIFA MARLYSHA MYRTHIL SERGIO PEREZ KERRY KRENTLER DEAN Trial Attorneys U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-6255 aaron.t1eisher@usdoj.gov
~ttomeys for the United States of America
DATED: February 4, 2011

 
 Case: 2:10-cv-00644-EAS-MRA Doc #: 100 Filed: 03/10/11 Page: 1 of 2 PAGEID #: 1935

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Shreve, ct aI., Plaintiffs, -vs-
Franklin County, Ohio et aI., Defendants.

Case No. 2:10-cv-644
Judge: Sargus Magistrate Judge: Abel

ORDER This matter came before the Court on the joint motion of the Plaintiff class representatives and the Defendants to approve the settlement agreement reached by the parties. On February 3, 2011, the Court granted preliminary approval to the Agreement Between Plaintiffs and Defendants, approved the notice of proposed class settlement and the manner in which the notice was published, and set a hearing for Thursday, March 10, 2011, at 10 a.m. on final approval of the settlement. Pursuant to this Court's order, notice of the proposed class settlement was posted throughout the intake areas and housing units of Franklin County Corrections Centers 1 and II for a period of seven days beginning on February 9, 2011. Full copies of the agreement were made available to class members at the Corrections Centers and through class counsel. Class members were permitted to mail objections to the Clerk of Courts through February 23, 2011. Indigent class members were permitted to mail one objection without cost. At the conclusion of the hearing on final approval of the settlement, the Court determined that the agreement is fair, reasonable, and adequate. Therefore, it is hereby ordered that:

Case: 2:10-cv-00644-EAS-MRA Doc #: 100 Filed: 03/10/11 Page: 2 of 2 PAGEID #: 1936 1. The Agreement Between Plaintiffs and Defendants (Doc. 95-1) is APPROVED; 2. Plaintiffs' claim for injunctive relief against the Defendants is
CONDITIONALLY DISMISSED and the Fraternal Order of Police Capital City Lodge No.9 is CONDITIONALLY DISMISSED as a Defendant pursuant to Fed. R. Civ. P. 41(a)(2), subject to Defendants achieving substantial compliance with the terms of the Agreement; this Court retains jurisdiction for the sole purpose of enforcing the Settlement Agreement in the event of a compliance dispute;
IT IS SO ORDERED. DATE
2

 
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 Case: 2:10-cv-00644-EAS-MRA Doc #: 96 Filed: 02/04/11 Page: 1 of 2 PAGEID #: 1928

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

)

ROBERT SHREVE, et aI.,

)

)

Plaintiffs,

)

)

)

UNITED STATES OF AMERICA,

)

)

Plaintiff-Intervenor,

)

)

)

v.

)

)

)

FRANKLIN COUNTY, OHIO, et. aI., )

)

Defendants.

)

)

)

)

-------------)

Case No.2: IO-cv-644
Judge: Sargus Magistrate Judge: Abel

ORDER For good cause shown, and in consideration of the Joint Motion for Entry of Settlement Agreement by the United States and Defendants. the Court hereby GRANTS the Joint Motion; conditionally dismisses the United States' Complaint pursuant to Fed. R. Civ. P. 41 (a)(2), subject to Defendants achieving substantial compliance with the terms of the Settlement Agreement; and retains jurisdiction for the sole purpose of enforcing the Settlement Agreement in the event of a compliance dispute.

Case: 2:10-cv-00644-EAS-MRA Doc #: 96 Filed: 02/04/11 Page: 2 of 2 PAGEID #: 1929

IT IS SO ORDERED: DATED

EDMUNDA. SARGUS, JR. UNITED STATES DISTRICT COURT JUDGE

2

 
 Case: 2:10-cv-00644-EAS-MRA Doc #: 93 Filed: 01/25/11 Page: 1 of 10 PAGEID #: 1888

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT SHREVE, et aI., Plaintiffs,
v.
FRANKLIN COUNTY, OHIO et aI.,
Defendants.

Case No. 2:10-cv-644 JUDGE SARGUS MAGISTRATE JUDGE ABEL

OPINION AND ORDER

Presently before the Court is the Fraternal Order of Police, Capital City Lodge No. 9's Motion to Intervene (Doc. 59). For the reasons set forth herein, the motion is GRANTED.
I. Plaintiffs in this class action seek to enjoin an alleged pervasive practice of sheriff's deputies at the Franklin County, Ohio, Corrections Centers subjecting prisoners to excessive force through the use of stun guns manufactured by TASER International, Inc. Defendants include Franklin County, the sheriff of Franklin County, and various sheriff deputies. By Opinion and Order dated December 14, 2010, the Court provisionally granted Plaintiffs' motion for class certification, and granted the motion to intervene ofthe United States of America and the motion to appear as amicus curiae of the National Fraternal Order of Police. (See Doc. 69.) The Court now addresses the motion ofthe Fraternal Order of Police, Capital City Lodge No.9 ("FOP") to intervene as a defendant in this action.
II. The FOP seeks to intervene as a matter of right pursuant to Rule 24(a), and in the alternative, seeks permission to intervene under Rule 24(b). The Court finds that the FOP has

Case: 2:10-cv-00644-EAS-MRA Doc #: 93 Filed: 01/25/11 Page: 2 of 10 PAGEID #: 1889
timely established its right to intervene and does not address whether permissive intervention would be appropriate in this case. 1
Rule 24(a) provides that: On timely motion, the court must permit anyone to intervene who: ... (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. FED. R. CIV. P. 24(a). The Sixth Circuit has extrapolated the following four elements from Rule 24(a) that must be satisfied to establish a right to intervene: (I) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor's ability to protect their interest may be impaired in the absence of intervention; and (4) the parties already before the court cannot adequately protect the proposed intervenor's interest. Coal. to De/end Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th CiT. 2007). The FOP has met each of these factors.
A. Timeliness The Court considers "all relevant circumstances" in determining whether the FOP's motion to intervene is timely. Jansen v. City a/Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). Factors that should be considered in evaluating timelines include (I) the progression of the suit; (2) the purpose for intervention; (3) the amount of time before attempted intervention during which the intervening party was aware of its potential interest in the case; (4) prejudice to the original parties that could arise as a result of the intervenor's failure to intervene upon
J The Court notes that FOP's claim for permissive intervention would contain possible jurisdictional deficiencies. See, e,g., E.E.o.C. v. Nat'! Children's Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998) ("Permissive intervention ... has always required an independent basis for jurisdiction.")
2

Case: 2:10-cv-00644-EAS-MRA Doc #: 93 Filed: 01/25/11 Page: 3 of 10 PAGEID #: 1890
discovering its interest in the case; and (5) any unusual circumstances weighing for or against intervention. Jd. The Plaintiffs' have not contested the timeliness of the FOP' s motion.
The FOP's motion was filed on December 6, 2010. At that time, the hearing on Plaintiffs' motion for a preliminary injunction was scheduled for January 10,2011. While the date of the hearing was subsequently moved to January 26,2011, the change in schedule was unrelated to the FOP's potential intervention in this case. On December 6,2010, the parties were engaged in discovery in preparation for the hearing, and the Court had not ruled on several key motions, including Plaintiffs' motion for class certification and the United State's motion to intervene. Thus, the Court finds that this suit had not significantly progressed at the point when the FOB moved for intervention, and the FOP did not seek a delay in the matter.
The FOP's purpose in intervening is the protection of its contractual and statutory interests as the exclusive collective bargaining representative of several of the named defendants in this case. "The 'purposes of intervention' prong of the timeliness element normally examines only whether the lack of an earlier motion to intervene should be excused, given the proposed intervenor's purpose . . .." Stupak-Thrall v. Glickman, 226 F.3d 467, 479 n.15 (6th Cir. 2000) (emphasis in original). Here, there is no indication as per the third prong of the timeliness analysis that the FOP did not act promptly to intervene upon becoming aware of the subject of settlement negotiations between Defendants and the United States. However, even if some delay were present, the FOP's purported interest is substantial enough to counterbalance the delay.
As per the fourth factor, the Court finds that none of the parties would be prejudiced by allowing the FOP to intervene at this point in the litigation. Finally, the Court cannot identify any unusual other circumstances.
3

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B. Legal Interest The second element necessary for an intervention of right under Rule 24(a) requires that "the proposed intervenor has a substantial legal interest in the subject matter of the case." Coal. to Defend Affirmative Action, 501 F.3d at 779. The Sixth Circuit has adopted "a rather expansion notion" of the type of interest required to intervene as a matter of right. Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997). Pursuant to Chapter 4117 of the Ohio Revised Code, the FOP is the exclusive collective bargaining representative of Franklin County deputy sheriffs below the rank of major. Under Ohio law, the Sheriff is therefore required to bargain with the FOP as to "wages, hours, terms and other conditions of employment." OHIO REv. CODE § 4117.03(A)(4). As such, the FOP represents that the relief sought by the Plaintiffs, if granted, would impact the terms and conditions of employment ofthe deputy sheriffs established by a collective bargaining agreement ("CBA") with the Sheriff. Specifically, the FOP points to the prayer for relief of the United State's Complaint in Intervention, which, inter alia, requests the Court to appoint an expert "to monitor, review, and oversee all uses of force involving deployment oftasers by Franklin County Sheriff's corrections deputies and to recommend appropriate discipline and conduct training of deputies where warranted." (Doc. 70 at 8-9.) According to the FOP, should this relief be granted, it will impact certain provisions in the CBA, including a provision prohibiting the change by the Sheriff of "past practices" not specifically covered by the CBA in the absence of good faith negotiations, provisions of the CBA governing the discipline of deputies, and provisions of the CBA guaranteeing the FOP negotiating rights for matters affecting deputy working conditions and safety. (See Doc. 59, Ex. A at 6-7, 17-23,31, & 72.)
4

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Plaintiffs contend that the FOP ' s stated interest does not justifY intervention as a matter of right on two grounds. First, Plaintiffs look to Alston v. Coughlin, 109 F.R.D. 609 (S.D.N.Y. 1986), in asserting that the FOP 's interest is not directly related to the subject matter of this action. According to Plaintiffs, this is an action arising under 42 U.S.C. § 1983, not a labor case. Second, Plaintiffs assert that, as the FOP's interest arises under Ohio law, the federal courts are not the proper forum for resolving claims related to collective bargaining rights created by state law. In support of this contention, Plaintiffs cite Judge Marbley's decision in S.H. v. Strickrath, 251 F.R.D. 293 (S.D. Ohio 2008), and § 4117.IO(A) of the Ohio Revised Code, which provides that laws pertaining to civil rights prevail over conflicting provisions in Ohio public collective bargaining agreements. Plaintiffs also contend that any interests that could be asserted by the FOP arising from the FOP's collective bargaining rights are within the exclusive jurisdiction of the Ohio State Employment Relations Board ("SERB").
The Court is unpersuaded by Plaintiffs' contentions and holds that the FOP's asserted interest is substantial and within the subject matter of this case. While Plaintiffs are correct in stating that this action arises pursuant to § 1983, the requested relief sought by Plaintiffs, if granted, will potentially have a substantial impact on the terms of the CBA and the collective bargaining rights of the FOP and its members. In this regard, Alston is readily distinguishable from the case at bar.
In Alston, inmates at Fishkill Correctional Facility alleged constitutional violations arising from overcrowding. Alston, 109 F.R.D. at 610. The union representing the prison's correctional staff sought to intervene as a matter of right alleging an imp act on the union members' reassignment rights, which were based on seniority. /d. at 613. In denying the motion to intervene, the court held that the interests asserted by the union were not directly related to the
5

Case: 2:10-cv-00644-EAS-MRA Doc #: 93 Filed: 01/25/11 Page: 6 of 10 PAGEID #: 1893
subject matter of the action and that an impairment of the union's interest was "too remote and contingent to justify intervention." Id. The court stated:
The plaintiffs' complaint alleges violations oftheir constitutional rights caused by overcrowding at Fishkill. They neither allege defects in the seniority-based assignment system nor seek to change that system. Thus [the union's] interest relates to the subject matter of the suit only in an indirect and hypothetical manner. Id. Here, the interest asserted by the FOP is much more directly related to the subject matter of this action. The FOP has pointed to specific provisions of the CBA that could be affected should the relief sought by Plaintiffs be granted, wbereas, in Alston, there was no direct connection between the overcrowding of the prison and the seniority rights of the corrections staff. Strickrath is also distinguishable from the case at bar. In Strickrath, Judge Marbley denied the Ohio Civil Service Employees Association ("OCSEA")'s motion to intervene in a class action involving conditions at juvenile detention facilities operated by the Ohio Department of Youth Services. Strickrath, 251 F.R.D. at 295. The class action had commenced in December 2004, and, after lengthy attempts to reach a settlement agreement, the parties eventually agreed to a stipulated injunction in April 2008 . Id. at 295-97. Only in March 2008, two weeks before the final injunction was agreed to, did the OCSEA move to intervene, asserting that approval of the injunction would jeopardize the rights ofOCSEA' s members under their collective bargaining agreement. !d. at 297. Significantly, Judge Marbley determined that the attempted intervention was not timely, and thus did not consider the remaining elements for establishing intervention as a matter of right. See id. at 303. Thus, Judge Marbley's opinion did not directly address the issue presently under consideration. The Court notes, however, that there is some overlap between the "purposes of intervention prong" of the timeliness analysis and the "substantial interest" element of a Rule 24(a) intervention. Plaintiffs cite Judge Marbley's discussion of the purposes of intervention
6

Case: 2:10-cv-00644-EAS-MRA Doc #: 93 Filed: 01/25/11 Page: 7 of 10 PAGEID #: 1894
prong to support their contentions that any interest that the FOP has in this matter must be adjudicated before SERB. According to Judge Marbley, the purposes of intervention prong weighed against the timeliness ofOSCEA's attempted intervention because
the Court does not have jurisdiction to resolve the union's grievances. OCSEA moves to block the settlement on the grounds that the stipulated injunction violates the CBA. Pursuant to § 4117 of the Ohio Revised Code, [SERB] has exclusive jurisdiction to adjudicate claims that arise from or are dependent on the collective bargaining rights of public employees. !d. at 302. The Supreme Court of Ohio has stated that exclusive jurisdiction to resolve charges of unfair labor practices is vested in SERB in two general areas: (1) where one of the parties files charges with SERB alleging an unfair labor practice under R.C. 4117.11; or (2) a complaint brought before the court of common pleas alleges conduct that constitutes an unfair labor practice specifically enumerated in R.C. 4117.11, and the trial court therefore dismisses the complaint for lack of subject-matter jurisdiction. City ofE. Cleveland v. E. Cleveland Firefighters Local 500. lA.F.F., 637 N.E.2d 878, 880 (Ohio 1994). As Plaintiffs have pointed out, this action "is an excessive force case based on the civil rights law in 42 U.S.C. § 1983, not a labor case." (Doc. 68 at 2.) The subject of this action does not involve allegations that Defendants have violated the CBA or that unfair labor practices have occurred as was the case in Strickrath, where the OCSEA alleged that, by agreeing to the injunction, the Ohio Department of Youth Services violated the terms of the collective bargaining agreement. Here, the FOP does not allege that the Sheriff is about to commit an unfair labor practice. Instead, it argues that provisions ofthe CBA could be vitiated by an order of this Court and that, before such an action is contemplated, it should be heard. This Court agrees. Accordingly, the Court finds that SERB's exclusive jurisdiction for handling claims of unfair labor practices does not preclude the FOP's intervention in this case.
7

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Plaintiffs also cite Judge Marbley's discussion of § 4177.IO(A) of the Ohio Revised code to support their position that the FOP does not have a cognizable interest at stake in this action. See Strickrath, 251 F.R.D. at 302. Plaintiffs are correct that § 4117.1 O(A) provides that, in the event of conflict between a CBA provision and civil rights legislation, the civil rights legislation would control, a proposition that could not be seriously questioned as to federal civil rights laws even absent that provision. Plaintiffs' assertion that this section prevents intervention presupposes, to a certain extent, Plaintiffs' success on the merits of this action. For instance, in the event of a judgrnent by the Court that certain practices governed by the CBA or within its scope violated § 1983, § 4117.1 O(A) would operate to prevent the FOP from asserting that those practices are contractually protected. This possible outcome, i.e. success on the merits by Plaintiffs, serves to illustrate how the FOP's legal interests could be impacted by this action. The FOP's presumed purpose in intervening is to join Defendants in defending this action on the merits. If successful, the FOP could prevent interference with the teI1DS of the CBA and the collective bargaining rights of the FOP and its members. Thus, the § 4117.10(A) conflict provision cannot be interpreted to bar the FOP's intervention in this case.
C, Impairment ofthe Legal Interest The third element that must be established by the FOP is that its ability to protect its interest may be impaired in the absence of intervention. Coal. to Defend Affirmative Action, 501 F.3d at 779. Here, a ruling by the Court adverse to Defendants could potentially impact provisions of the CBA. For instance, a preliminary or peI1Danent injunction curtailing the use of tasers and establishing monitoring requirements could impact the "past practices" section of the agreement, the procedures under which deputies represented by the FOP are disciplined, and provisions ofthe agreement covering the safety and working conditions ofthe employees.
8

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Accordingly, the FOP has established that its legal interests could be impaired absent its intervention.
D. Representation of the Legal Interest The final element required to establish an intervention as of right is that "the parties already before the court cannot adequately protect the proposed intervenor's interest." Coal. to De/end Affirmative Action, 501 F.3d at 779. "[TJhe proposed intervenor['sJ burden in showing inadequacy is minimal." Grutter v. Bollinger, 188 F.3d 394, 400 (6th Cir. 1999) (internal quotation omitted). In this regard, the proposed intervenor must only demonstrate that the representation of its interests by the existing parties may be inadequate. Linton, 973 F.2d at 1319 (emphasis supplied). Here, the Court finds that the FOP has established that the existing Defendants cannot adequately protect its interests. In many respects, those interests may align with those of Franklin County and Sheriff Kames. However, the FOP's position as the bargaining representative of the Sheriffs employees could easily lead to a divergence of those interests during the course of this litigation. Accordingly, the FOP has met its burden in demonstrating each of the requisite elements of an intervention as a matter of right pursuant to Rule 24(a).
III. For the forgoing reasons, the Fraternal Order of Police, Capital City Lodge No. 9's Motion to Intervene (Doc. 59) is GRANTED.
9

Case: 2:10-cv-00644-EAS-MRA Doc #: 93 Filed: 01/25/11 Page: 10 of 10 PAGEID #: 1897 IT IS SO ORDERED.

DATED

E~. SARGUS, JR.
UNITED STATES DISTRICT JUDGE

10

 
 Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 1 of 11 PAGEID #: 1602

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

ROBERT SHREVE, individually and on )

behalf of all others similarly situated;

)

)

MICHAEL WORLEY, individually and )

on behalf of all others similarly situated; )

)

MICHAEL REED, individually;

)

)

DAWN FIORE-BRUNO, individually; )

)

Plaintiffs,

)

)

UNITED STATES OF AMEIUCA,

)

)

Applicantfor Intervention,

)

)

v.

)

)

FRANKLIN COUNTY, OHIO;

)

)

JIM KARNES, SHERIFF FRANKLIN )

COUNTY OHIO, in his official capacity; )

)

MARK BARRETT, FRANKLIN

)

COUNTY SHERIFF'S OFFICE CHIEF )

DEPUTY) CORRECTIONS, in his official )

capacity;

)

)

STEPHAN L. MARTIN, FRANKLIN )

COUNTY SHERIFF'S OFFICE CHIEF )

DEPUTY, INVESTIGATIONS, in his

)

official capacity;

)

)

JOHN I JANE DOES, FRANKLIN

)

COUNTY DEPUTIES OF THE

)

INTERNAL AFFAIRS BUREAU, in their )

official capacities;

)

)

JOHN I JANE ROES, FACILITY

)

COMMANDER(S) FRANKLIN

)

COUNTY CORRECTIONS CENTER I )

(FCCCI) FROM JULY 16, 2008 TO

)

Case No. 2:1 0-cv-644 Judge: Sargus Magistrate Judge: Abel
UNITED STATES' COMPLAINT IN INTERVENTION PURSUANT TO 42 U.S.C. § 14141

Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 2 of 11 PAGEID #: 1603

PRESENT, in their official capacities;

)

)

MAJOR MICHAEL HERRELL,

)

FORMER FACILITY COMMANDER, )

FRANKLIN COUNTY CORRECTIONS )

CENTER II (FCCC II), in his official

)

capacity;

)

)

MAJOR DOUG EDGINGTON,

)

PRESENT FACILITY COMMANDER, )

FRANKLIN COUNTY CORRECTIONS )

CENTER II, in his official capacity;

)

)

Defendants.

)

- - -- - - - -- - - - - )

INTRODUCTION

1. This case challenges a pervasive pattern or practice of subjecting arrestees and

inmates at the Franklin County Sheriffs Office to the excessive and disproportionate use of force

by corrections deputies of the Franklin County Sheriffs Office. In essence, Plaintiffs contend

that Defendants engage in a pattern or practice of unlawfully using tasers against inmates and

detainees, often against individuals who pose no threat of violence or harm to themselves or

others. See Complaint, Shreve, et al. v. Franklin County, et al., No. 2:10-cv-644 (S.D. Ohio,

filed July 16, 201 0) (Doc. 1). 2. The challenged pattern or practice is carried out through the frequent and
gratuitous use oftasers to inflict pain, fear, corporal punishment and humiliation. Tasers operate in two different modes. One mode is designed to subdue a person at a distance by firing two darts or probes that strike and attach to the person. The second is "drive stun" mode, or the "pain compliance option." Drive stun mode produces a continuous extremely painful electrical shock useful for an officer engaged in close hand contact with a resisting subject.
3. Franklin County Sheriffs Officials have created and engage in a policy or practice of deploying tasers in a manner that violates the Fourth, Eighth, and Fourteenth

2

.

I

•

Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 3 of 11 PAGEID #: 1604

Amendments to the United States Constitution. In case after case, deputies tase people, often in the drive stun mode to cause pain, when the person was greatly outnumbered by a team of deputies who were easily able to physically overpower and control the individual, or accomplish

the task at hand, thereby eliminating any objective threat to the person' s own safety or that of the deputies. In a number of instances, corrections deputies have tased arrestees or inmates while they were in mechanical restraints. In one case, an inmate was even tased while fully · immobilized in a four point restraint chair. The use of force in this instance was found

"justified." 4. In another case, deputies came to a cell ostensibly to assist a mentally ill inmate
who was banging his head against his bed. Instead of entering the cell to remove the inmate, a team of deputies stood around outside the cell while a sergeant repeatedly tased this imnate a

total of fourteen times because he would not slide out of the cell by himself. This use of force

was found to be "justified."

5.

his Often, when an arrestee voices a verbal objection to having to remove or her

clothes, or otherwise shows any lack of cooperation during the booking process, such as failing

to answer routine medical questions from a nurse, a team of deputies takes the person into a side

tank, forcibly strips the individual without telling the person why they are being "dressed out,"

and tases the person if there is any degre.e of resistance, including passive or verbal resistance, to

being stripped.

6.

Plaintiffs, on behalfof themselves and a proposed class of inmates and detainees

of the Franklin County Sheriffs Office, have asserted claims under 42 U.S.C. § 1983 on the basis of the same constitutional violations for which the United States can initiate an action under 42 U.S.C. § 14141. On July 23, 2010, Plaintiffs filed a motion for a preliminary injunction, seeking an Order directing Defendants to comply with their taser policy, cease using

3

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tasers in drive stun mode absent an immediate need to prevent loss of life or serious bodily harm,

and submit to monitoring by Plaintiffs' counsel through the issuance of biweekly reports oftaser use. (Doc. 6). The hearing on Plaintiffs' Motion for a Preliminary Injunction is cunently set for

November 8, 2010. On August 27,2010, Plaintiffs amended their complaint to add an additional

plaintiff individually and as a proposed class representative. (Doc. 15).

7. Pursuant to 42 U.S.C. § 14141, and for the reasons articulated in the

accompanying Memorandum of Law, the United States of America, through its undersigned

attorneys, hereby submits this Complaint in Intervention to eliminate the pervasive pattem or practice by Defendants of using tasers in a cruel and abusive manne.r in violation of the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution. Accordingly, the United States seeks a judgment granting declaratory and injunctive relief to eliminate Defendants'

unconstitutional pattern or practice.

JURISDICTION AND VENUE

8. This Court has jurisdiction of this action under 28 U.S.C. §§ 1331 and 1345. 9. The United States is authorized to initiate this action pursuant to 42 U.S.C.

§ 14141. 10.

Venue is proper in the Southern District of Ohio pursuant to 28 U.S.C. § 1391, as

the events giving rise to the claims occurred in this district.

DEFENDANTS

11. Defendant Franklin County is a unit of local government organized under the laws

of the State of Ohio. 12. Defendant Jim Kames was at all times relevant to this action the Sheriff of

Franklin County, Ohio. He is sued in his official capacity. 13. Defendant Mark Barrett was at all times relevant to this action the Chief Deputy,

4

Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 5 of 11 PAGEID #: 1606
Corrections for the Franklin County Sheriff's Office. 14. Defendant Barrett is the deputy in charge of the operations of Franklin Cotmty's
two correctional facilities, Franklin County Corrections Center I at 370 S. Front Street in Columbus, Ohio and Franklin County Corrections Center II at 2460 Jackson Pike in Columbus, Ohio (FCCC I and FCCC II respectively, or FCCC collectively).
15. Defendant Barrett reviews and approves all use of force reports from all Franklin County corrections deputies, including use of force reports involving deployment of tasers. He is sued in his official capacity.
16. Defendant Stephan L. Martin was at all times relevant to this action the Chief Deputy, Investigations for the Franklin County Sheriff's Office.
17. As Chief oflnvestigations, Defendant Martin is the head of the Internal Affairs Bureau of the Franklin County Sheriff's Office. The Internal Affairs Bureau is responsible for the investigation of alleged misconduct by members of the Franklin County Sheriff's Office.
18. Defendant Martin's Bureau reviews all use offorce reports from Franklin County conections deputies, including use of force reports involving deployment oftasers. Defendant Martin is sued in his official capacity.
19. Defendants John I Jane Does were the members of the Franklin County Sheriff's
Office Internal Affairs Bureau at all times relevant to this action. 20. As members of the Internal Affairs Bureau, Defendants John/ Jane Doe reviewed
a ll use of force repo11s from Franklin County corrections deputies who worked at FCCC I and FCCC II, including use of force reports involving deployment oftasers. Defendants John I Jane Doe are sued in their official capacities.
21. The names of these John I Jane Doe Defendants can be readily ascertained in discovery and Plaintiff can file an amended complaint immediately upon identification of these
5

Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 6 of 11 PAGEID #: 1607
Defendants.
22. Defendants John I Jane Roes were the facility commanders for FCCC I at all
times relevant to this action. 23. As FCCC I facility commanders, Defendants John/ Jane Roe reviewed all use of
force reports from Franklin County corrections deputies who worked at FCCC I, including use of force reports involving deployment oftasers. Defendants John I Jane Roe are sued in their official capacities.
24. . The names of these John I Jane Roe Defendants can be readily ascertained in discovery and Plaintiff can file an amended complaint immediately upon identification of these Defendants.
25. Defendants Michael Herrell and Doug Edgington were the facility commanders for FCCC II during times relevant to this action.
26. As FCCC II facility commanders, Defendants Herrell and Edgington reviewed all use of force reports from Frankl in County corrections deputies who worked at FCCC II, including use of force reports involving deployment of tasers. Defendants Herrell and Edgington are sued in their offi.cial capacities.
FACTUAL ALLEGATIONS 27. The United States incorporates by reference the allegations set forth in Paragraphs I through 26 as if fully set forth herein. 28. The Franklin County Sheriff's Office is engaged in a pattern or practice of the unlawful use oftasers against detainees and inmates in their custody. This unlawful use oftasers includes, but is not limited to:
6

Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 7 of 11 PAGEID #: 1608

a. viewing tasers as a tool to "soften up" detainees and regularly applying

tasers to individuals who do not pose any threat of violence or harm to themselves

or others;

b.

deploying tasers in "drive stun" mode, a "pain compliance option" that

produces a continuous and extremely painful electrical shock designed to subdue

a violently resisting subject to handcuffing;

c. using tasers on naked - and often bound - detainees who are subjeCted to

full body cavity strip searches during the booking process;

d. routinely and deliberately applying tascrs to individuals who are

pmticularly vulnerable because of physical or mental disability, pregnancy, or

incapacitation by alcohol or drugs;

e.

deploying tasers in retaliation for minor rule violations, such as &~rogatory

remarks made to officers or questions about officers' authority; and

f.

routinely violating the Sheriffs Offic.e's own written policy on the

deployment of tasers. 29. The Defendants, through their acts or omissions, have engaged in and continue to

engage in a policy or practice of systematic deficiencies that has resulted in an excessive and abusive use oftasers by Franklin County Sheriffs corrections deputies. These systematic

deficiencies include, but are not limited to: a. ratifying corrections deputies' misuse oftasers by reviewing the use of

force reports and videotapes and finding the use oftasers to be "justified";

b. failing to properly train and supervise corrections deputies to use tasers in

accordance with applicable legal standards and/or the Franklin County Sheriffs

Office written poHcy; and

7

Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 8 of 11 PAGEID #: 1609
c. failing to discipline deputies whose use oftasers: (1) violates the Sheriff's Office's own written policies; (2) departs from well-established standards of law enforcement and corrections professionals; (3) results in unnecessary physical harm and mental distress; and (4) violates the federal constitutional rights of persons detained in the custody of the Franklin County Sheriff's Offic.e.
CAUSE OF ACTION 30. 42 U.S.C. § 14141 gives the Department of Justice jurisdiction to initiate a civil action to obtain equitable and declaratory relief to eliminate a pattern or practice of conduct by law enforcement officers that "deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws ofthe United States." 42 U.S.C. § 1414l(a)-(b). 31. Through their acts or omissions, as described in Paragraphs 27 through 29 above, the Defendants have engaged in and continue to engage in unlawful pattern or practice of conduct against detainees and inmates in their custody, in violation of the Constitution (specifically the Fourth, Eighth, and Fourteenth Amendments) and the laws of the United States,
as enforced through 42 U.S.C. § 14141.
PRAYER FOR RELIEF WHEREFORE, the United States, pursuant to 42 U.S.C. § 14141, prays that the Court: a. enter a judgment declaring that the Defendants have engaged in a pattern or practice of conduct that violates the rights of Plaintiffs under the Constitution or the laws ofthe United States, as enforced through 42 U.S.C. § 14141; b. enter an order permanently enjoining Defendants from continuing their unlawful policy or practice of using tasers in a cruel and abusive manner in violation of the Fourth, Eighth, and Fourteenth Amendments to the United States Constitution; c. appoint an expert-who is not associated with any party to this action and who
'8

Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 9 of 11 PAGEID #: 1610
has extensive experience in corrections and use of force with taser technology-to monitor, review, and oversee all uses of force involving deployment of tasers by Franklin County Sheriffs corrections deputies and to recommend appropriate discipline and conduct training of deputies where warranted; and d. grant any such other relief as the Court may deem seem just and proper.
Respectfully submitted,

SANDRO (00 19877) Chief, Civil Division United States Attorney's Office Southem District of Ohio

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division
SAMUEL R. BAGENSTOS Principal Deputy Assistant Attorney General Civil Rights D' ision

TAM~~
Principal Deputy Chief Special Litigation Section
~~
...AAR0NFLEISHER
~ Trial Attorneys
9

Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 10 of 11 PAGEID #: 1611

DATED: November 2, 2010

U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 (202) 514-6255 aaron.tleisher@usdoj .gov marlysha.myrthi l@usdoj.gov
Attorneys for the United States of America

10

Case: 2:10-cv-00644-EAS-MRA Doc #: 70 Filed: 12/14/10 Page: 11 of 11 PAGEID #: 1612

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Complaint in Intervention was filed electronically on

,{1Jm this ]!L day of

~ , 20 I0, with the Clerk of Court using the CM/ECF System,

which will provide notice of such filing to all registered parties.
JL~r.
MARK T. D'ALESSANDRO (0019877) Chief, Civil Division United States Attorney's Office Southern District of Ohio 303 Marconi Blvd., Suite 200 Columbus, Ohio 43215 (614) 469-5715 Fax: (614) 469-5240 Email: mark.dalessandro@usdoj .gov

11

 
 Case: 2:10-cv-00644-EAS-MRA Doc #: 104 Filed: 04/29/11 Page: 1 of 54 PAGEID #: 2021

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

ROBERT SHREVE, Individually and on :

behalf of all others similarly situated,

:

MICHAEL WORLEY, Individually and on

behalf of all others similarly situated,

: Case No. 2:10-cv-644

MICHAEL REED, Individually DAWN FIORE-BRUNO, Individually Plaintiffs,

: Judge: Sargus
: Magistrate Judge: Abel
:

-vsFRANKLIN COUNTY, OHIO

: Third Amended Individual Complaint for Damages
: and
: Third Amended Class Action Complaint
: for Declaratory and Injunctive Relief

JIM KARNES, SHERIFF FRANKLIN COUNTY OHIO In his official capacity,

: Jury Demand Endorsed Hereon :

MARK BARRETT, FRANKLIN COUNTY :

SHERIFF’S OFFICE CHIEF DEPUTY,

CORRECTIONS,

:

Individually and in his official capacity,

:

STEPHAN L. MARTIN, FRANKLIN

COUNTY SHERIFF’S OFFICE CHIEF

:

DEPUTY, INVESTIGATIONS,

Individually and in his official capacity,

:

LT. ROBERT FORINO,

:

LT. STEPHANIE KLUMPP,

SGT. CHARLES WILLIAMSON, AND :

MAJOR GEOFFREY STOBART

CURRENT AND FORMER FRANKLIN :

COUNTY DEPUTIES OF THE INTERNAL

AFFAIRS BUREAU WHO REVIEWED

:

AND INVESTIGATED USE OF FORCE

Case: 2:10-cv-00644-EAS-MRA Doc #: 104 Filed: 04/29/11 Page: 2 of 54 PAGEID #: 2022

REPORTS INVOLVING DEPLOYMENT :

OF TASERS AT FCCC I AND FCCC II

FROM JULY 16, 2008 TO PRESENT

:

Individually and in their official capacities,

:

MAJOR GEOFFREY STOBART,

MAJOR MICHAEL HERRELL, AND

:

MAJOR DOUG EDGINGTON,

PRESENT AND FORMER FACILITY

:

COMMANDERS FRANKLIN COUNTY

CORRECTIONS CENTER I (FCCC I) AND :

FRANKLIN COUNTY CORRECTIONS

CENTER II (FCCC II)

:

Individually and in their official capacities,

:

FRANKLIN COUNTY SHERIFF’S

:

DEPUTIES:

:

JAMES DISHONG,

CPL. SAMUEL BYRD,

:

JAMES JODREY,

SAM MONTROSE,

:

CLAYTON KERN,

CHRISTOPHER STARNER,

:

SHANNON BEAUDRY,

SGT. STEVEN DEAN,

:

ELIZABETH KLEIN,

DEREK SHIVELY,

:

JASON BROBST,

LEE VANDETTE,

:

DANIEL WALDREN,

JOSHUA CROSBY,

:

NICHOLAS LAPETINA,

CHRISTOPHER LEONARD

:

CURTIS WINN

BEN DAMSCHRODER

:

CPL. DEBRA CANTRELL,

JONATHAN ROUSH,

:

NICHOLAS WILLIAMS,

NATHAN COLEMAN,

:

ANDREW GILES,

MARK EAGAN,

:

MANLEY MORGAN,

DOUGLAS ROBINSON,

:

CHRISTOPHER LEE,

2

Case: 2:10-cv-00644-EAS-MRA Doc #: 104 Filed: 04/29/11 Page: 3 of 54 PAGEID #: 2023

Individually

:

FRANKLIN COUNTY CORRECTION :

CENTER NURSE:

:

LIZ MEHL,

Individually

:

Defendants.

:

I. INTRODUCTION 1. Each paragraph in this Complaint incorporates all others.

2. This Third Amended Complaint challenges two practices at the Franklin County

Corrections Centers.

3. The first practice challenged in this Complaint involves subjecting detainees at

the Franklin County Corrections Centers to the excessive and disproportionate use of force by

corrections deputies of the Franklin County Sheriff’s Office.

4. This challenged practice is carried out through the frequent and gratuitous use of

tasers to inflict pain, fear, corporal punishment and humiliation.

5. Tasers deliver a minimum 5-second 50,000 volt electrical shock that causes

excruciating pain. Landis v. Baker, 2008 U.S. App. LEXIS 21946, at *6 n.4 (6th Cir. 2008).

Deputies are able to deliver more than 5 seconds of electricity simply by continuing to press the

taser’s trigger. As long as the trigger is depressed, the electrical shock continues.

6. Tasers operate in two different modes. The primary use is to subdue a person at a

safe distance by firing two darts or probes that strike and attach to the person. Thereafter, an

electrical discharge produces temporary neuromuscular incapacitation (NMI) which

instantaneously and completely immobilizes the person. “A stun gun inflicts a painful and

frightening blow, which temporarily paralyzes the large muscles of the body, rendering the

victim helpless.” Kijowski v. City of Niles, 2010 U.S. App. LEXIS 7222, at *16 (6th Cir. 2010).

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7. Tasers can also be used in “drive stun” mode. According to the Taser International Website Manual, drive stun mode is the “pain compliance option.” As the Taser Manual describes it: “Drive-stun Taser use produces a continuous extremely painful electrical shock useful for an officer engaged in close hand to hand contact with a resisting subject; pain forces the resisting subject to stop violently resisting and submit to handcuffing….”
8. Franklin County Sheriff’s deputies are aware of how painful it is to be tased. Near the end of a video tape of the tasing of a female detainee during booking at Franklin County Corrections Center I, a Franklin County deputy asks a police officer from The Ohio State University (OSU) campus if he has ever been tased. When the officer responded no, the sheriff’s deputy replied, “They hurt like hell.” Internal Affairs Report #08-116.
9. At all times relevant to this Complaint, it was the custom, policy and practice of Franklin County Sheriff’s corrections deputies to repeatedly use their tasers in a callous and sadistic manner that violates the Franklin County Sheriff’s own regulations for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of detainees; has caused needless physical harm and mental distress; and violates the Constitutional rights of detainees at the Franklin County Corrections Centers.
10. The second practice challenged in this Complaint involves the practice by Franklin County Sheriff’s Office corrections employees of violating the Fourth Amendment right to privacy of detainees at the Franklin County Corrections Centers.
11. At all times relevant to this Complaint, it was the custom, policy and practice of Franklin County Sheriff’s corrections employees to carry out the forcible stripping of detainees arrested on misdemeanor charges without adequate justification for this humiliating use of force; without affording
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the affected detainees the opportunity to change their clothing in private; and by stripping detainees in the presence of and with the assistance of opposite sex deputies II. JURISDICTION AND VENUE
12. This court has subject matter jurisdiction over Plaintiffs’ Third Amended Complaint pursuant to 28 U.S.C. §§ 1331, 1343(3) and 1343(4). Venue is proper in this district under 28 U.S.C. § 1391 because all parties reside in this district and the events or omissions giving rise to Plaintiffs’ Complaint occurred in this district. III. PARTIES
13. Plaintiff Robert Shreve was at all times relevant to this action a resident of Franklin County, Ohio.
14. Plaintiff Shreve was incarcerated at the Franklin County Corrections Center II (FCCC II) at the time of filing the original Complaint on July 16, 2010.
15. Plaintiff Michael Worley was at all times relevant to this action a resident of Franklin County, Ohio.
16. Plaintiff Worley was incarcerated at FCCC II at the time of filing the First Amended Complaint on August 27, 2010.
17. Plaintiff Michael Reed was at all times relevant to this action a resident of Franklin County, Ohio.
18. Plaintiff Reed was not incarcerated at the time of filing the original Complaint on July 16, 2010.
19. Plaintiff Dawn Fiore-Bruno was at all times relevant to this action a resident of Franklin County, Ohio.
20. Plaintiff Fiore-Bruno was not incarcerated at the time of filing the original Complaint on July 16, 2010.
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21. Defendant Franklin County is a unit of local government organized under the laws of the State of Ohio.
22. Defendant Jim Karnes was at all times relevant to this action the Sheriff of Franklin County, Ohio. He is sued in his official capacity.
23. Defendant Mark Barrett was at all times relevant to this action the Chief Deputy, Corrections for the Franklin County Sheriff’s Office.
24. Defendant Barrett is the deputy in charge of the operations of Franklin County’s two correctional facilities, Franklin County Corrections Center I at 370 S. Front Street in Columbus, Ohio and Franklin County Corrections Center II at 2460 Jackson Pike in Columbus, Ohio.
25. Defendant Barrett reviews and approves all use of force reports from all Franklin County corrections deputies, including use of force reports involving deployment of tasers. He is sued in his individual and official capacities.
26. Defendant Stephan L. Martin was at all times relevant to this action the Chief Deputy, Investigations for the Franklin County Sheriff’s Office.
27. As Chief of Investigations, Defendant Martin is the head of the Internal Affairs Bureau of the Franklin County Sheriff’s Office. The Internal Affairs Bureau is responsible for the investigation of alleged misconduct by members of the Franklin County Sheriff’s Office.
28. Defendant Martin’s Bureau reviews all use of force reports from Franklin County corrections deputies, including use of force reports involving deployment of tasers. Defendant Martin is sued in his individual and official capacities.
29. Defendants Stephanie Klumpp, Robert Forino, Geoffrey Stobart, and Charles Williamson were the members of the Franklin County Sheriff’s Office Internal Affairs Bureau at
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all times relevant to this action. 30. As members of the Internal Affairs Bureau, Defendants Klumpp, Forino, Stobart,
and Williamson reviewed all use of force reports from Franklin County corrections deputies who worked at FCCC I and FCCC II, including use of force reports involving deployment of tasers. Defendants Klumpp, Forino, Stobart, and Williamson are sued in their individual and official capacities.
31. Defendants Michael Herrell, Geoffrey Stobart and Doug Edgington were the facility commanders for FCCC I and FCCC II during almost all times relevant to this action.
32. From January 1, 2009, to August 3, 2009, there was no facility commander for FCCC I. During that time period, Defendant Barrett was the de facto facility commander in his role as Chief Deputy of Corrections.
33. As FCCC I and II facility commanders, Defendants Herrell, Stobart, Edgington and Barrett reviewed all use of force reports from Franklin County corrections deputies who worked at the correctional facilities, including use of force reports involving deployment of tasers. Defendants Herrell, Stobart, Edgington and Barrett are sued in their individual and official capacities.
34. Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee were active participants in the tasing of Plaintiff Robert Shreve. These Defendants are sued in their individual capacities.
35. Defendants Leonard, Waldron, Winn, Crosby, Damschroder and Lapetina were active participants in the tasing of Plaintiff Michael Worley. These Defendants are sued in their individual capacities.
36. Defendants Dishong, Byrd, Leonard, Jodrey, Montrose, Kern, and Starner were
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active participants in the tasing of Plaintiff Michael Reed. These Defendants are sued in their individual capacities.
37. Defendants Dean, Beaudry, Klein, Shively, Brobst and Vandette were active participants in the tasing of Plaintiff Dawn Fiore-Bruno. These Defendants are sued in their individual capacities.
38. Defendant Liz Mehl was the Intake nurse when Plaintiff Dawn Fiore-Bruno was brought to FCCC II on December 10, 2009. Nurse Mehl either ordered or acquiesced in FioreBruno’s placement in a safety gown, during which Ms. Fiore-Bruno was forcibly stripped. Defendant Mehl is sued in her individual capacity. IV. POLICY AND PRACTICE OF EXCESSIVE USE OF TASERS BY DEFENDANTS
39. Under Ohio law, Sheriff Karnes makes the policy for the county with regard to the operation of his office and discharge of his duties.
40. According to the Franklin County Sheriff’s Office policy, the Chief Deputy of Corrections, Defendant Barrett, assigns X26 Tasers to corrections officers at his discretion. AR800:2, Section 2.1.
41. According to this same policy, tasers are to be deployed “to gain control of a violent or dangerous inmate…when attempts to subdue the inmate by conventional tactics have been or are likely to be ineffective or there is reasonable expectation that it will be unsafe for deputies to approach within contact range of the inmate.” AR800:2, Section 1.3.
42. This policy permits taser deployment in the following circumstances: selfdefense; protection of another inmate or staff; disarming an inmate under non-lethal conditions; preventing self-harm to an inmate; or controlling a combative inmate. AR800:2, Sections 1.3.1 1.3.5.
43. According to policy, tasers should not be deployed upon persons who are
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restrained by a mechanical device such as handcuffs, leg irons or a restraint chair. AR800:2, Section 3.1.14
44. Further, the policy provides that the taser is not recommended for use on women known to be pregnant. AR800:2, Section 5.5 states that corrections officers should not use tasers to “harass, taunt, interrogate, interview, threaten, or belittle any persons,” AR800:2, Section 5.3.
45. Under the policy, every time a deputy uses a taser he or she must generate a Use of Force Report which is forwarded through the chain of command. AR800:2, Section 4.5.
46. The Franklin County Sheriff’s Office Use of Force policy states that each shift supervisor must compile a summary of each use of force report and forward this to Internal Affairs. AR801, Section 2.3.
47. Internal Affairs must then review all use of force reports, interview all persons with knowledge of the event, and make a determination of whether or not the use of force was in compliance with department policy, that is, whether the use of force was “justified.” AR801, Sections 2.5 - 2.6. On information and belief, the Internal Affairs review also includes video tapes of each use of force incident, including tapes made by hand-held cameras operated by deputies.
48. Internal Affairs then forwards this record and its use of force determination to the Franklin County Sheriff or his designee for review of the entire record. The Sheriff or his designee may either accept or reject the finding of Internal Affairs. AR801, Sections 2.7 - 2.8. If the use of force is ultimately determined to be “justified,” no discipline is imposed on the deputy or deputies involved.
49. Thus, the chain of command for reviewing all reports involving use of tasers by Franklin County Sheriff’s deputies includes shift supervisors, the Internal Affairs Bureau and the
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Sheriff or his designee. The Franklin County Sheriff or his designee makes the final determination of whether the use of tasers, or any other use of force, was justified.
50. Franklin County corrections deputies routinely violate the Sheriff’s Office policy on deployment of tasers. These practices are captured in the written use of force reports and on videotapes recorded by the Franklin County Sheriff’s Office in scores of cases since at least January 1, 2008.
51. Franklin County corrections deputies regularly use tasers in situations where the person does not remotely present a threat of violent behavior or harm to self or others, and routinely and deliberately use tasers as first strike weapons without employing or even considering less painful or harmful control tactics.
52. In case after case, deputies tase people, often in the drive stun mode to cause pain, when the person was greatly outnumbered by a team of deputies who were easily able to physically overpower and control the individual, or accomplish the task at hand, thereby eliminating any objective threat to the person’s own safety or that of the deputies.
53. In a number of instances, corrections deputies tased arrestees or inmates while they were in mechanical restraints. In one case, an inmate was even tased in drive stun mode while fully immobilized in a four point restraint chair. The use of force in this instance was found “justified.” Internal Affairs Report #09-360.
54. It is common for deputies to tase a person whose only offense was failure to obey deputies’ verbal commands, which is classified as a “minor rule violation” that does not pose a threat to staff or inmates under the Sheriff’s own administrative regulation.1 Thus, the threshold for use of the taser is often only a minor breach of jail discipline.
1 Under AR 804 5.1. “Minor rule violations shall include….failure to comply with an order by staff.”
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55. Deputies also use the taser as a retaliatory weapon when detainees show verbal resistance or question authority by using profanity or making derogatory remarks to staff, despite that fact that this too is considered only a “minor rule violation” under Sheriff’s Office policy.2
56. Comparisons of the videotapes to the deputies’ written use of force reports also show that deputies often embellish or misrepresent the circumstances under which people were tased. The written reports describe the persons they tased as “combative,” “unruly” or “resisting” when the actual video showed that the person was yelling and/or cursing at deputies in a manner that was irritating, but not a physical threat.
57. In other instances, the “resistance” was passive, not combative or active, in nature, such as a person refusing to place hands behind the back, failing or refusing to remove a piece of jewelry or clothing, or a person who crossed his or her arms across the chest in selfprotection against a forced cuffing or stripping.
58. For example, deputies tased a woman, who previously told them she was pregnant, for being unable to remove her tongue ring because her hands were too slippery. Deputies tased her after they refused her repeated requests to use a paper towel to remove the tongue ring. After tasing her the deputies finally gave her a paper towel which enabled her to remove the tongue ring without difficulty. The tasing of this woman was found to be a “justified” use of force. Internal Affairs Report #09-399.
59. In many other instances, deputies tased persons for being “uncooperative.” These individuals were not violent or threatening violence. They were simply so impaired by alcohol or drugs that they were incapable of comprehending or complying with the deputies’ commands, as shown in a video that depicts a young male arrested on a misdemeanor charge who is clearly
2 Under AR 804 5.2 minor rule violations include “profanity, derogatory remarks or gestures to any member of the staff….”
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cognitively impaired by drugs or alcohol. In the video of this case, the corporal in charge told the man “I don’t know what you’re on.”
60. Several deputies had taken this man to a cell in order to change him from his street clothes into jail clothes. The corporal, who had a taser, informed the other deputies that “he hasn’t been a threat to us but if I say ‘taser’ move out of the way.”
61. The video shows that the young man complied with the corporal’s commands to remove his ring, shirt, shoes and pants but did so slowly, with deputies needing to assist at times. The man had removed all clothing but his underwear when the corporal ordered him to sit down on a bench. The man remained standing after several commands to sit down. The corporal then tased him multiple times, including drive stuns, and pistol whipped him with the taser. The deputy’s use of the taser in this case was found “justified.” Internal Affairs Report #09-258.
62. Corrections deputies routinely and deliberately use tasers in drive stun mode as a form of corporal punishment for behavior that does not remotely involve violent resistance by a subject, or constitute a physical or security threat.
63. One example of this is captured in the video of a man arrested for a misdemeanor. He was handcuffed behind his back and was not acting out in a threatening manner. Sgt. Mychal Turner tased this man twice with probes because he got up from a bench and began to walk around in the booking area while another deputy watched over him. The man was kneeling on the floor, incapacitated by the earlier tasings, when the Sergeant then drive stunned him twice because the man did not immediately obey further commands to get up from the floor and sit down on the bench. The tasing of this man was reviewed and found to be “justified.” Internal Affairs Report #10-009.
64. Corrections deputies also routinely and deliberately tase people who are
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particularly vulnerable because of physical and mental disabilities. Deputies often respond inappropriately to such persons in a manner that escalates conflict and actually increases the likelihood that excessive force will be used.
65. One video depicts deputies who came to the cell of an inmate with mental illness to move him to another location. When deputies opened the cell door the inmate was holding a mat in front of him and speaking unintelligibly. The inmate’s actions and demeanor show that he was disoriented. Sgt. Turner tased this inmate for not standing up and tased him again for moving his arms and legs, stating “I’m tired of playing with you.” Turner continued to tase this mentally impaired inmate when he tried to crawl under the bed. The inmate was finally pulled out of the cell, still clutching the mat. He was put in leg irons and tased again when he would not let go of the mat. The use of force in this instance was found “justified.” Internal Affairs Report #09-018.
66. In another video, deputies came to a cell ostensibly to assist a mentally ill inmate who was banging his head against his bed. Instead of entering the cell to remove the inmate, a team of deputies stood around outside the cell while a sergeant repeatedly tased this inmate a total of fourteen times because he would not slide out of the cell by himself. This use of force was found to be “justified.” Internal Affairs Report #09-390.
67. Corrections deputies also routinely and deliberately deploy tasers for pain and subjugation during the forced stripping of arrestees who should not be subjected to such a humiliating practice.
68. Often, when an arrestee voices a verbal objection to having to remove his or her clothes, or otherwise shows any lack of cooperation during the booking process, such as failing to answer routine medical questions from a nurse, a team of deputies takes the person into a side
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tank, forcibly strips the individual without telling the person why they are being “dressed out,” and tases the person if there is any degree of resistance, including passive or verbal resistance, to being stripped.
69. For example, one video shows a twenty one year old woman, brought in for driving without an operator’s license, a misdemeanor, who was stripped and tased four times. During booking, she verbally expressed her displeasure at being arrested but was not aggressive or threatening. The deputies grabbed her already injured arm and she complained they were hurting her. When she voiced these complaints, deputies whisked her into a “side tank” where deputies pushed her face first into a wall and then forced her to the floor, face down.
70. Although deputies described this young woman as “violently” resisting, at least four deputies controlled her arms, trunk and legs and she could only squirm. With two male deputies present, and another male deputy filming with a hand-held camera, the team of deputies forcibly stripped her while she constantly asked “what are you doing to me?” She was left lying naked, face down on the floor of her cell. Deputies left only a safety gown for her to wear, despite the fact that she presented no objective risk of self harm.3 This use of force was also found “justified.” Internal Affairs Report #09-147.
71. In another case, the Ohio State Patrol brought a Hispanic man to the jail on traffic charges. He was also suspected of possibly being a deportable felon wanted by the United States Immigration and Naturalization Service (INS), which turned out to be a case of mistaken identity. The video shows that deputies booked this man and then took him into a side tank where he was ordered to strip.
3 The safety or suicide gown is a shapeless green gown that is supposed to be used for arrestees or inmates who are threatening self-harm. When a person is placed in a safety gown he or she is not even allowed to wear underwear.
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72. Deputies ordered the man to pull his underwear down, turn around, bend over and “spread your ass cheeks.” The man refused to comply with this humiliating request. Sgt. Turner again ordered the man to bend over and spread his cheeks so that he could be checked for “contraband” even though these deputies had no reason to suspect that the man possessed drugs and he had already had a pat-down search and clothing search. He again refused and Turner then tased him. The intense pain led the man to obey Turner’s command. Afterwards, he asked Turner “why you mess with me like that?” In response to the man’s question, Turner replied in a loud voice, “This is jail.” Turner’s use of the taser in this case was reviewed and found to be “justified.” Internal Affairs Report #08-272.
73. Sheriff Karnes, as the policy maker for the Franklin County Sheriff’s Office, as well as Deputy Chiefs Barrett and Martin, members of the Internal Affairs Bureau and the facility commanders of the Franklin County Corrections Centers are responsible for the policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers. This is because, as set out in this Complaint:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified.”
b) They fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this
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Complaint, they have failed to properly train corrections deputies to use tasers in accordance with the Franklin County Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal Constitutional rights of persons in custody to be free from excessive force.
74. The policies and practices of Defendants Sheriff Karnes, Chief Deputies Barrett and Martin, and Defendants Klumpp, Forino, Stobart, Williamson, Herrell, and Edgington in their official and individual capacities constitute deliberate indifference that in turn makes Defendant Franklin County accountable for injuries to the Plaintiffs in this action. V. POLICY AND PRACTICE OF VIOLATION OF RIGHT TO PRIVACY
75. Under Ohio law, Sheriff Karnes makes the policy for the county with regard to the operation of his office and discharge of his duties.
76. Franklin County Sheriff’s Office policy addresses suicidal detainees, including the placement of detainees into safety gowns. Placement in a safety gown involves removal of all of the person’s clothing, including underwear.
77. According to the Franklin County Sheriff’s Office policy in effect at all times relevant to this Complaint, detainees were not to be placed in a safety gown unless they displayed suicidal ideation or suicidal acts or gestures.
78. Franklin County corrections deputies and intake nurses routinely violated this policy by forcibly stripping detainees arrested on misdemeanor charges and placing them in safety gowns, not because they displayed suicidal ideation, acts or gestures but rather to humiliate and/or punish the individual.
79. Detainees were stripped and placed in safety gowns because they did not answer
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nurse’s questions at intake or showed some other lack of cooperation in the booking process. Deputies’ reports often referred to these individuals as “uncooperative” or “unruly” at intake.
80. These detainees were forcibly stripped without being told why their clothing was being removed and were not given an opportunity to remove their own clothing with only same sex deputies present.
81. Male deputies were present throughout the forced stripping of female detainees. Male deputies participated in the restraint of female detainees, in the removal of their clothing, and in some cases filmed the process with a hand-held camera.
82. The hand-held videos of these stripped detainees, which show them completely naked, are public records subject to dissemination upon request.
83. Sheriff Karnes, as the policy maker for the Franklin County Sheriff’s Office, as well as Deputy Chiefs Barrett and Martin, members of the Internal Affairs Bureau and the facility commanders of the Franklin County Corrections Centers are responsible for the policy and practice of violating the Fourth Amendment right to privacy of detainees who are forcibly stripped in the presence of opposite sex deputies absent justifiable safety concerns. This is because, as set out in this Complaint:
a) They routinely ratify the conduct of corrections employees who participate in this practice by reviewing the use of force reports and videotapes of forced strippings and finding this to be a “justified” use of force.
b) They fail to discipline corrections employees who engage in the forcible stripping of detainees when that conduct violates Franklin County Sheriff’s own written policy; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical
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integrity of the persons stripped; causes needless physical harm and mental distress; and violates the Constitutional right to privacy of the detainees who are subjected to this humiliating practice.
c) They failed to properly train corrections deputies on compliance with the Franklin County Sheriff’s Office written policy on placement of persons in safety gowns; and on the need to comply with the federal Constitutional rights of persons in custody to be free from violations of their right to privacy.
84. The policies and practices of Defendants Karnes, Barrett, Martin, Forino, Klumpp, Stobart, Williamson, Herrell and Edgington in their official and individual capacities constitute deliberate indifference to the violations of the constitutional right to privacy that in turn makes Defendant Franklin County accountable for injuries to the Plaintiffs in this action.
85. Along with those cases discussed above, the facts in the cases of named Plaintiffs Robert Shreve, Michael Worley, Michael Reed, and Dawn Fiore-Bruno exemplify the policy and practice of abusive and excessive use of tasers by Franklin County Corrections deputies as well as the practice of violating the right of privacy of detainees by Franklin County Corrections employees. VI. PLAINTIFF ROBERT SHREVE - STATEMENT OF FACTS
86. Plaintiff Shreve is deaf. He was brought to FCCC I on a misdemeanor charge, domestic violence, at a few minutes after midnight on July 19, 2009.
87. The video of his case shows that he arrived in the back of a Columbus Police Department wagon. He was handcuffed behind his back and his legs were restrained by a hobble strap because, according to Columbus police, he was a “fighter.”
88. A team of at least six sheriff’s deputies and Cpl. Debra Cantrell assembled at the police wagon to take Mr. Shreve from police custody and into the jail booking area.
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89. Cpl. Cantrell had her taser out before Mr. Shreve was even lifted from the police wagon.
90. A Columbus police officer told Cpl. Cantrell and the other deputies that Mr. Shreve was deaf and could not speak English.
91. Mr. Shreve was removed from the police wagon without incident and was held by deputies. He went limp and was carried into the jail booking area by three deputies.
92. Once inside the booking area, Mr. Shreve was placed face down on the floor and held there by a team of deputies.
93. Deputy Jonathan Roush had Mr. Shreve’s left arm; Deputy Douglas Robinson had his right arm; and Deputy Christopher Lee had his legs. Cpl. Cantrell stood by with her taser out.
94. Mr. Shreve is not a big man. He is 5 feet, 7 inches tall and weighs 165 pounds. 95. The Deputies’ reports state that Mr. Shreve was “attempting to kick and move about on the floor struggling with staff.” In her report, Cpl. Cantrell stated that Mr. Shreve “continued to struggle and thrash about” and was “combative.” She also stated that Mr. Shreve was trying to bite one of the deputies. 96. These descriptions do not accurately reflect the actual video tape of Mr. Shreve’s booking. 97. The video shows that it would have been physically impossible for him to bite anyone because he was handcuffed behind his back and pinned, face down on the floor, by three deputies. Deputies Roush and Robinson were on his right and left upper body and Deputy Lee held Mr. Shreve’s legs down. 98. Although he did move his legs to one side he was not kicking. His legs were
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hobbled and restrained by the deputies. It was not physically possible for him to “thrash about” or be “combative” with three deputies on top of him.
99. A fourth deputy, Nicholas Williams, also stepped in and, with both hands, pressed Mr. Shreve’s face into the floor in a head lock. In total, he was handcuffed behind the back, in leg irons and held down by four deputies. Their intended task was to exchange handcuffs and return the original set of cuffs to the Columbus police officers.
100. While all four deputies immobilized Mr. Shreve face down, Cpl. Cantrell stepped in and tased Mr. Shreve’s leg in drive stun mode. He gave a guttural cry of pain. Cpl. Cantrell then asked the deputies, “Did that soften him up?”
101. After the deputies exchanged the handcuffs, Cpl. Cantrell then leaned over Mr. Shreve and told him to “relax, relax,” as if he could hear her instructions. She later remarked, “He’s freakin’ because he can’t hear.”
102. Mr. Shreve was then taken to a side tank where his clothes were removed and he was placed in jail clothing without further incident.
103. Cpl. Cantrell’s use of the taser in drive stun mode to “soften up” Mr. Shreve was deemed to be a “justified” use of force. VII. ROBERT SHREVE INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS CANTRELL, ROUSH, WILLIAMS, COLEMAN, GILES, EAGAN, MORGAN, ROBINSON AND LEE
104. At all times relevant to this Complaint, Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee were state actors by virtue of their employment with the Franklin County Sheriff’s Office.
105. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
106. As an arrestee, Plaintiff Shreve was protected by the Fourth Amendment’s
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protection against use of excessive force by law enforcement. 107. Under the Fourth Amendment, law enforcement officers may only use reasonable
force, that is, the amount of force that is reasonable to protect officers from a perceived threat. 108. The use of the taser in drive stun mode against Plaintiff Shreve by Defendants
Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee was a willful, callous and gratuitous act that violated Plaintiff Shreve’s Fourth Amendment right to be free from the use of excessive force.
109. The fact that Defendants Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee were not the officers who tased Mr. Shreve does not diminish their culpability. These deputies were present, were active participants who subdued Mr. Shreve, were aware that Deputy Cantrell was going to tase Mr. Shreve as he lay in their grasp, and had the opportunity to stop it from occurring.
110. As a direct and proximate result of the excessive use of force by Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee, Plaintiff Shreve suffered compensable physical pain and injuries as well as emotional distress.
111. Plaintiff Shreve is also entitled to punitive damages because Defendants Cantrell, Roush, Williams, Coleman, Giles, Eagan, Morgan, Robinson and Lee acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. VIII. ROBERT SHREVE INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, INTERNAL AFFAIRS DEPUTIES FORINO, KLUMPP, WILLIAMSON AND STOBART, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
112. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington are all state actors by virtue of their employment with the Franklin County
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Sheriff’s Office. 113. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart,
Herrell and Edgington have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified, as they did in Plaintiff Shreve’s case.
b) As in Plaintiff Shreve’s case, they fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this Complaint, Defendants Sheriff Karnes, Barrett, Martin, Herrell and Edgington have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force.
114. The policies and practices of Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington in their official and individual capacities constitutes deliberate indifference that in turn makes Defendant Franklin County accountable for
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injuries to Plaintiff Shreve. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245 1246, 1248 (6th Cir. 1989).
115. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington acted with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiff Shreve while acting under color of state law.
116. These actions and failures to act by these Defendants caused Plaintiff Shreve to be subjected to excessive and unreasonable force in violation of the Fourth Amendment, from which he suffered compensable physical pain and injuries as well as emotional distress.
117. Plaintiff Shreve is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. IX. PLAINTIFF MICHAEL WORLEY - STATEMENT OF FACTS
118. Plaintiff Worley had open heart surgery to replace his mitral valve in December, 2008. He is also recovering from addiction to heroin. He has not used heroin for at least seven months.
119. Plaintiff Worley was arrested by Franklin County Sheriff’s deputies on April 16, 2010 in Grove City. He was a passenger in a car pulled over for a traffic stop.
120. Deputies found that he had an outstanding misdemeanor warrant for petty theft. They also found marijuana and some Xanax and Suboxone pills that were not prescribed for Mr. Worley.
121. Suboxone is approved for the treatment of opioid dependence and Xanax is an anti-anxiety drug. Mr. Worley told deputies he was a recovering heroin addict and took both pills to keep him from relapsing.
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122. Deputies arrested him on the misdemeanor warrant and possession of drugs and took him to FCCC I for booking. Once booked, Mr. Worley was placed in a side cell.
123. According to Sgt. Christopher Leonard’s use of force report, a deputy heard Mr. Worley yell that he wanted to kill himself.
124. A “response team” was assembled to go to Mr. Worley’s cell, place him on a safety watch, and place Mr. Worley in a safety gown.
125. Five deputies - Sgt. Leonard, Joshua Crosby, Daniel Waldren, Ben Damschroder and Nicholas Lapetina - entered Mr. Worley’s cell. Deputy Curtis Winn recorded this incident on a hand-held camera.
126. The video tape of this incident shows that Sgt. Leonard drew his taser as he entered Mr. Worley’s cell with the other four deputies.
127. Sgt. Leonard ordered Mr. Worley to stand up and turn around so that Mr. Worley had his back to the deputies and was facing the back wall of his cell.
128. Sgt. Leonard then ordered Mr. Worley to take off his shirt, sandals and socks. 129. Mr. Worley complied with these orders but asked “why do I gotta get naked?” 130. Sgt. Leonard replied, “cause you said you wanted to kill yourself.” 131. Mr. Worley denied this, saying “no, I said I feel like I’m going crazy if I don’t get my anxiety medicine.” 132. Sgt. Leonard then ordered Mr. Worley to take off his pants and his underwear. Sgt. Leonard then told Mr. Worley “one more order and I’m going to tase you.” 133. Taser International warns that subjects with certain pre-existing conditions such as cardiac disease may be at risk of death or serious injury from “arrest-related death” if tased. 134. Mr. Worley turned toward the sergeant and deputies and told them “I got open
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heart surgery, you’ll kill me, my mom will be rich.” 135. Sgt. Leonard’s response was “I don’t care.” 136. Mr. Worley took off his pants but refused to take off his underwear saying “I’m
not sitting in here naked.” 137. Sgt. Leonard gave Mr. Worley three rapid commands to take off his shorts, then
said “I’m not gonna tell you again, take off your shorts.” 138. The sergeant then immediately tased Mr. Worley in the back. Mr. Worley cried
out in pain. 139. Sgt. Leonard ordered Mr. Worley to lay on his belly and put his hands at his sides
or “I’ll pull the trigger again.” Sgt. Leonard ordered the other deputies to remove Mr. Worley’s underwear as he lay face down on the cell floor.
140. Mr. Worley made choking and coughing noises after being tased and his entire body began shaking uncontrollably.
141. Sgt. Leonard remarked, “He’s faking,” but called for a nurse. She asked Mr. Worley if he could hear her, told him to open his eyes, told him to calm his breathing and told him to wake up. Mr. Worley continued shaking for several minutes after the nurse arrived.
142. Once Mr. Worley stopped shaking Sgt. Leonard told him to “stay down on the ground or I’ll shoot you again.” The deputies then placed Mr. Worley in a suicide gown.
143. There were five deputies in Mr. Worley’s cell who could have managed any resistance or threat presented by Mr. Worley. Mr. Worley himself did not physically or verbally threaten these deputies. He was tased simply because he did not want to remove his underwear.
144. Knowing that Mr. Worley had a heart condition, Sgt. Leonard deployed his taser without considering measures of lesser force because this was the quickest and most convenient
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way to get compliance. 145. Sgt. Leonard’s use of the taser as a form of pain compliance in this instance was
reviewed and found to be “justified.” X. MICHAEL WORLEY INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS LEONARD, WINN, CROSBY, DAMSCHRODER, WALDREN AND LAPETINA
146. At all times relevant to this Complaint, Defendants Leonard, Winn, Crosby, Damschroder, Waldren and Lapetina were state actors by virtue of their employment with the Franklin County Sheriff’s Office.
147. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
148. As an arrestee, Plaintiff Worley was protected by the Fourth Amendment’s protection against use of excessive force by law enforcement.
149. Under the Fourth Amendment, law enforcement officers may only use reasonable force, that is, the amount of force that is reasonable to protect officers from a perceived threat.
150. The use of the taser against Plaintiff Worley by Defendants Leonard, Winn, Crosby, Damschroder, Waldren and Lapetina was a willful, callous and gratuitous act that violated Plaintiff Worley’s Fourth Amendment right to be free from the use of excessive force.
151. The fact that Defendants Winn, Crosby, Damschroder, Waldren and Lapetina were not the officers who tased Mr. Worley does not diminish their culpability. These deputies were present, were active participants in this incident, were aware that Sgt. Leonard was threatening to tase Mr. Worley, and had the opportunity to stop it from occurring.
152. As a direct and proximate result of the excessive use of force by Defendants Leonard, Winn, Crosby, Damschroder, Waldren and Lapetina, Plaintiff Worley suffered compensable physical pain and injuries as well as emotional distress.
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153. Plaintiff Worley is also entitled to punitive damages because Defendants Leonard, Winn, Crosby, Damschroder, Waldren and Lapetina acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. XI. MICHAEL WORLEY INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, INTERNAL AFFAIRS DEPUTIES FORINO, KLUMPP, STOBART AND WILLIAMSON, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
154. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Herrell are all state actors by virtue of their employment with the Franklin County Sheriff’s Office.
155. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Herrell have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified,” as they did in Plaintiff Worley’s case.
b) As in Plaintiff Worley’s case, they fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this Complaint, Defendants Sheriff Karnes, Barrett, Martin, and Herrell have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy;
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to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force.
156. The policies and practices of Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Herrell in their official and individual capacities constitutes deliberate indifference that in turn makes Defendant Franklin County accountable for injuries to Plaintiff Worley. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245 - 1246, 1248 (6th Cir. 1989)
157. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Herrell acted with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiff Worley while acting under color of state law.
158. These actions and failures to act by these Defendants caused Plaintiff Worley to be subjected to excessive and unreasonable force in violation of the Fourth Amendment, from which he suffered compensable physical pain and injuries as well as emotional distress.
159. Plaintiff Worley is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. XII. PLAINTIFF MICHAEL REED - STATEMENT OF FACTS
160. In the early 1990’s, Plaintiff Reed had a motorcycle accident that left him in a coma and caused a traumatic brain injury. Since this accident he has experienced seizure episodes.
161. Mr. Reed has been diagnosed with both tonic clonic seizures (stiffening and rigidity of muscles followed by rhythmic jerking motions) and complex partial seizures (the
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person appears to be staring blankly and loses contact with his surroundings, often followed by chewing movements, mumbling and unorganized movements).
162. Like many persons who have seizures, he usually does not remember having the seizure and becomes confused, disoriented, fatigued and sometimes combative after a seizure.
163. On August 10, 2008 Mr. Reed was walking near the corner of Hamilton Road and Broad Street in Columbus, Ohio when he had a seizure.
164. Emergency Medical Technicians (EMTs) from the Columbus Fire Department responded. According to their reports, Mr. Reed was lying on his stomach when they arrived, rambling and not making sense. When they tried to take him to the hospital, they said he became “aggressive and assaultive.”
165. Instead of the hospital, Mr. Reed ended up in jail on a charge of assaulting a peace officer, one of the EMTs.
166. Mr. Reed had no memory of the incident. He woke up in jail, wearing a suicide gown. When told he was in jail for assault, he asked who he assaulted.
167. Mr. Reed was incarcerated in the Franklin County Corrections Center II awaiting trial on the assault charge.
168. On December 23, 2008, Judge Michael Holbrook of the Franklin County Common Pleas Court found Mr. Reed not guilty by reason of insanity (NGRI) on the assault charge.
169. The NGRI finding was based on an evaluation by forensic psychologist Pamela Chapman which concluded that, because of his brain injury and seizure disorder, he was neither able to appreciate the wrongfulness of his conduct at the time of the offense nor able to control his disorganized thinking and behavior.
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170. Judge Holbrook ordered Mr. Reed to be committed to the Twin Valley Behavioral Healthcare Forensic Unit.
171. However, Twin Valley did not have an open bed. Thus, Mr. Reed had to stay in the Franklin County Corrections Center II until a bed became available at Twin Valley.
172. On January 29, 2009 Mr. Reed had a seizure in his cell at FCCC II. 173. A team of deputies - Cpl. Sam Byrd, Deputy Sam Montrose, Deputy James Jodrey, Deputy Clayton Kern and Deputy Chris Starner - entered his cell at about 4:00 pm to “take him to medical” to receive medical attention. 174. These deputies were aware that Mr. Reed had just had a seizure. 175. Mr. Reed was on the floor of his cell when the deputies entered. Upon entering, they gave rapid commands to Mr. Reed to put his hands behind his back so they could put handcuffs on him and take him to medical. 176. The deputies’ use of force reports indicate that Mr. Reed became “combative” when they tried to handcuff him. The video of this incident, however, does not support their description of Mr. Reed. 177. The video shows Mr. Reed as being dazed, confused and unable to process the deputies’ commands in the aftermath of his seizure. 178. Mr. Reed did not put his hands behind his back as commanded, but he did not actively resist the deputies. He put his hands up in a defensive posture. His hands were shaking. 179. When two deputies grabbed Mr. Reed’s left arm to put it behind his back for cuffing, Mr. Reed rolled over on his stomach and said, “oh, oh.” 180. Cpl. Byrd pointed the taser at Mr. Reed’s chest. Byrd told Mr. Reed he would be tased if he didn’t put his left hand behind his back and warned “It’s gonna hurt a lot.” “It’s
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gonna fucking hurt bad.” 181. The video shows that Mr. Reed was still confused and not comprehending what
the deputies wanted him to do. 182. The deputies again grabbed Mr. Reed to place his hands behind his back. When
he attempted to roll away from them, Cpl. Byrd tased him. Mr. Reed cried out in pain and put his hands up in a defensive posture saying, “Please, please, please.”
183. Cpl. Byrd again tased Mr. Reed, this time in drive stun mode, because he was not putting his hands behind his back. At one point, a deputy said “Reed, hey, wake up,” indicating that Mr. Reed still was not fully aware.
184. After being tased a second time, Mr. Reed submitted. He was cuffed behind the back, leg ironed and pulled to his feet. The video shows that as the deputies took him out of his cell, Mr. Reed asked several times “What did I do?”
185. Mr. Reed suffered a cut on his head from this incident. It is unclear from the deputies’ reports whether the cut was the result of falling during the seizure or the deputies’ efforts to cuff him.
186. After a seizure, a person is often fatigued, dazed and not fully aware of his surroundings and can become belligerent, frightened and unable to communicate.
187. Mr. Reed appeared dazed, tired and not fully aware of his surroundings on the video of his post-seizure period when deputies Byrd, Montrose, Jodrey, Kern and Starner entered his cell.
188. These deputies were supposed to be there to help him get appropriate medical care. Instead, they grabbed him, restrained him, frightened him and tased him twice for failing to obey their misguided commands. Yet this use of force was reviewed and determined to be
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“justified.” 189. That same evening, after Mr. Reed was removed from his cell and taken to
medical, Deputies Christopher Dishong and Matthew Carter took him to the Mount Carmel Hospital West Emergency Room for further examination and to fix the cut on his head.
190. Deputy Dishong tased Mr. Reed again in the ER, while he was “leg ironed” to a hospital stretcher.4 According to Deputy Carter’s report, he was using the bathroom at this time and was not present when Deputy Dishong tased Mr. Reed.
191. The “Attending Note” from the hospital records states that Mr. Reed began standing up on the stretcher “talking loudly and not making sense” and that he was “shackled to the bed by the ankle at the time” the deputy tased him. When tased, Mr. Reed fell off the bed, striking his head.
192. Mr. Reed suffered another head laceration from the fall, requiring stitches. 193. According to Deputy Dishong’s report, Mr. Reed stood up on the hospital bed and “began to mutter to himself.” When Mr. Reed did not lie down on the bed, the deputy tased him, causing Mr. Reed to “stiffen” and fall off the bed, striking his head on the wall and floor and sustaining the second head laceration. 194. According to Taser International’s warnings for the X26 taser, the probes cause “neuromuscular interruption” which renders the subject unable to move and may cause him to fall. 195. Taser International therefore warns that subjects are especially at risk of further injury if they could fall and suffer an impact injury to the head when tased; are on an elevated or unstable surface when tased; or are in restraints that incapacitate or immobilize them when tased.
4 There is no video of the events at the hospital.
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All of these risk factors were present at the time Deputy Dishong tased Mr. Reed in the hospital ER.
196. The Franklin County Sheriff’s Office policy for the X 26 taser also states that tasers should not be deployed upon persons who are restrained by a mechanical device such as handcuffs, leg irons or a restraint chair.
197. Tasing Mr. Reed again at the ER, in a situation where he was leg ironed to a hospital bed and thus had very little ability to move about, was unnecessary, gratuitous, a violation of Sheriff’s Office policy, and subjected him to exactly the kind of further injury that Taser International warned of. Despite this, the Deputy’s use of the taser was reviewed and deemed a “justified” use of force. XIII. MICHAEL REED INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS BYRD, MONTROSE, JODREY, KERN, STARNER, AND DISHONG
198. At all times relevant to this Complaint, Defendants Byrd, Montrose, Jodrey, Kern, Starner, and Dishong were state actors by virtue of their employment with the Franklin County Sheriff’s Office.
199. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
200. At the time of this incident Mr. Reed had already been committed to a psychiatric hospital pursuant to the NGRI adjudication. He should not even have been in the jail at the time he was tased.
201. Therefore, Mr. Reed was protected by the Fourteenth Amendment. 202. Under the Fourteenth Amendment, Plaintiff Reed had the substantive due process right to be free from undue bodily harm at the hands of state actors. 203. Although Mr. Reed was not convicted of a crime and thus not subject to
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punishment, but rather was adjudicated NGRI, that is, determined to have been not criminally responsible for the crime charged, Plaintiff Reed pleads in the alternative a violation of his rights under the Eighth Amendment.
204. The Eighth Amendment sets parameters on punishment of prisoners who are serving a sentence pursuant to conviction of a crime. It prevents state actors from unnecessarily and wantonly inflicting pain upon prisoners.
205. Whether analyzed under Eighth or Fourteenth Amendment standards, however, the use of the taser against Plaintiff Reed multiple times in his cell by Defendants Byrd, Montrose, Jodrey, Kern, Starner, and by Deputy Dishong at the hospital emergency room was unduly and unnecessarily harmful, as well as a wanton infliction of pain that violated his Constitutional right to be free from the use of excessive force.
206. The fact that Defendants Montrose, Jodrey, Kern, and Starner were not the officers who tased Mr. Reed during the incident in his cell does not diminish their culpability. These deputies were present, were active participants in this incident, heard Deputy Byrd threaten to tase Mr. Reed if he did not cooperate and therefore, had the opportunity to stop this use of excessive force from occurring.
207. As a direct and proximate result of the excessive use of force by Defendants Byrd, Montrose, Jodrey, Kern, Starner, and Dishong, Plaintiff Reed suffered compensable physical pain and injuries as well as emotional distress.
208. Plaintiff Reed is also entitled to punitive damages because Defendants Byrd, Montrose, Jodrey, Kern, Starner, and Dishong acted with reckless and wanton indifference to Plaintiff’s Eighth or Fourteenth Amendment rights to be free of excessive force.
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XIV. MICHAEL REED INDIVIDUAL CAUSE OF ACTION - 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, INTERNAL AFFAIRS DEPUTIES FORINO, KLUMPP, STOBART AND WILLIAMSON, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
209. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Stobart, and Herrell are all state actors by virtue of their employment with the Franklin County Sheriff’s Office.
210. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Stobart, and Herrell have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified,” as they did in Plaintiff Reed’s case.
b) As in Plaintiff Reed’s case, they fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this Complaint, Defendants Sheriff Karnes, Barrett, Martin, and Herrell have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force.
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211. The policies and practices of Defendants Sheriff Karnes, Chief Deputies Barrett, Martin, Klumpp, Forino, Stobart, and Herrell in their official and individual capacities constitutes deliberate indifference that in turn makes Defendant Franklin County accountable for injuries to Plaintiff Reed. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245 - 1246, 1248 (6th Cir. 1989).
212. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Stobart, and Herrell acted with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiff Reed while acting under color of state law.
213. These actions and failures to act by these Defendants caused Plaintiff Reed to be subjected to excessive and unreasonable force in violation of either the Eighth or Fourteenth Amendments, from which he suffered compensable physical pain and injuries as well as emotional distress.
214. Plaintiff Reed is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff’s Fourteenth Amendment, or in the alternative, Eighth Amendment, right to protection against the use of excessive force. XV. PLAINTIFF DAWN FIORE-BRUNO -STATEMENT OF FACTS
215. Plaintiff Fiore-Bruno has a history of treatment for mental illness as well as a reported history of both physical and sexual abuse.
216. Plaintiff Fiore-Bruno was arrested for disorderly conduct, a misdemeanor, on December 10, 2009. She was brought to FCCC II for booking very early in the morning on that date, around 1:30 am.
217. The video of the booking area shows that before Ms. Fiore-Bruno was brought in, two male deputies can be overheard saying “I love belly shirts” and “they’re hot.”
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218. When Ms. Fiore-Bruno arrived she was talking in a loud voice and cursing, but not physically threatening or violent in any way.
219. Two female deputies, Shannon Beaudry and Elizabeth Klein, sat Ms. Fiore-Bruno down on a bench and removed her shoes and socks. Ms. Fiore-Bruno did not resist.
220. Deputies Beaudry and Klein then took Ms. Fiore-Bruno to a line drawn on the floor in front of the booking counter, where she stood without resisting.
221. As she was being escorted to the booking counter Ms. Fiore-Bruno asked if she was being taped and said “I want to be on fucking tape.”
222. Deputies Beaudry and Klein removed Ms. Fiore-Bruno’s belt and searched her pockets. Again, she did not resist.
223. Defendant Liz Mehl, the nurse behind the booking counter, asked Ms. FioreBruno if she had any medical problems. Ms. Fiore-Bruno replied “yes.”
224. Nurse Mehl asked Ms. Fiore-Bruno, “What are they?” Ms. Fiore-Bruno responded “BPD.”5 Nurse Mehl asked Ms. Fiore-Bruno if she was going to answer and Ms. Fiore-Bruno responded in a loud voice “what’d you say to me?” Nurse Mehl replied, “I’m not gonna keep repeating myself.” Ms. Fiore-Bruno then yelled “I said BPD.” She also called the nurse a “bitch.” Nurse Mehl’s response was, “Ok, I’m done. I’m not gonna be talked to like that.”
225. Female deputies Beaudry and Klein, accompanied by male deputies Derek Shively, Jason Brobst, Steven Dean and Keith Miller, took Ms. Fiore-Bruno to a holding cell. The deputies did not inform Ms. Fiore-Bruno that she was expected to change out of her clothes. The deputies did not afford Ms. Fiore-Bruno the opportunity to voluntarily change in private.
5 Ms. Fiore-Bruno has been diagnosed with Borderline Personality Disorder (BPD) and a mood disorder.
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The deputies also did not tell Ms. Fiore-Bruno that what they intended to do was to forcibly strip her naked.
226. The deputies placed Ms. Fiore-Bruno face down on the cell floor and began forcibly stripping off her clothes. Cpl. Lee Vandette was also present in the cell and observing the take-down and stripping of Ms. Fiore-Bruno.
227. As she was being stripped, Ms. Fiore-Bruno constantly yelled for a camera to record the event and accused the deputies of being abusive. Deputy Jason Brobst, who was at Ms. Fiore-Bruno’s right arm, began yelling at her to stop pulling her arm away “and do what you’re told.”
228. Deputy Steven Dean drew his taser and pointed the laser light at Ms. Fiore-Bruno. The two female deputies continued to pull off Ms. Fiore-Bruno’s clothes with male deputies present in the cell as she was being stripped.
229. Ms. Fiore Bruno said, “There’s no reason to make me naked.” At that point, deputies began to roll her over face up while she was topless and Ms. Fiore-Bruno continued yelling, “I want a camera.” Deputy Brobst told her to “Roll over and do what you’re told” and “You’re gonna start doing what you’re told.”
230. As the female deputies began to remove Ms. Fiore-Bruno’s jeans and underwear, she tried to roll over on her stomach. Deputy Dean then placed his taser on her left buttock and drive stunned her.
231. Four male deputies and two female deputies were present as her jeans and underwear were being removed. Ms. Fiore-Bruno said, crying, “There should not be a male in here.”
232. Deputy Brobst told her “this was all because you refused to do what you were told
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to do.” Ms. Fiore-Bruno asked “what if I was your sister?” 233. After being stripped completely naked, Ms. Fiore-Bruno was left lying, face
down, on the cell floor. A male deputy warned her she would be tased again if she moved before deputies exited the cell. The only clothing they left for her was a safety gown, despite the fact that there was no objective indication that Ms. Fiore-Bruno intended to harm herself in any way.
234. It was unnecessary to escalate Ms. Fiore-Bruno’s booking by subjecting her to this degrading process, during which she was tased for her ineffectual resistance to being forcibly stripped by multiple deputies.
235. Ms. Bruno has a history of physical and sexual abuse and mental illness.6 The process of being forcibly stripped and tased in the presence of male deputies during booking for a misdemeanor arrest was particularly traumatizing and humiliating for Ms. Fiore-Bruno given her history.
236. Tasing Ms. Fiore-Bruno was determined to be a “justified” use of force. XVI. DAWN FIORE-BRUNO INDIVIDUAL CAUSE OF ACTION FOR EXCESSIVE FORCE - 42 U.S.C. § 1983 AS TO DEFENDANTS BEAUDRY, KLEIN, SHIVELY, BROBST, DEAN, MILLER AND VANDETTE
237. At all times relevant to this Complaint, Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette were state actors by virtue of their employment with the Franklin County Sheriff’s Office.
238. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
239. As an arrestee, Plaintiff Fiore-Bruno was protected by the Fourth Amendment’s
6 This is not uncommon, as studies show that eighty percent of women in prisons and jails have been victims of sexual and physical abuse. Smith, B., “An end to silence: Woman prisoners’ handbook on identifying and addressing sexual misconduct,” National Women’s Law Center (April 1998).
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protection against use of excessive force by law enforcement. 240. Under the Fourth Amendment, law enforcement officers may only use reasonable
force, that is, the amount of force that is reasonable to protect officers from a perceived threat. 241. The use of the taser against Plaintiff Fiore-Bruno by Defendants Beaudry, Klein,
Shively, Brobst, Dean, Miller and Vandette was a willful, callous and gratuitous act that violated Plaintiff Fiore-Bruno’s Fourth Amendment right to be free from the use of excessive force.
242. The fact that Defendants Beaudry, Klein, Shively, Brobst, Miller and Vandette were not the officers who tased Ms. Fiore-Bruno does not diminish their culpability. These deputies were present, were participants in the forced removal of Ms. Fiore-Bruno’s clothing, were aware that Deputy Dean was going to tase Ms. Fiore-Bruno as they were holding her, and had the opportunity to stop it from occurring. As a direct and proximate result of the excessive use of force by Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette, Plaintiff Fiore-Bruno suffered compensable physical pain and injuries as well as emotional distress.
243. Plaintiff Fiore-Bruno is also entitled to punitive damages because Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller and Vandette acted with reckless indifference to Plaintiff’s Fourth Amendment right to protection against the use of excessive force. XVII. DAWN FIORE-BRUNO INDIVIDUAL CAUSE OF ACTION FOR VIOLATION
OF RIGHT TO PRIVACY, 42 U.S.C. § 1983 AS TO DEFENDANTS BEAUDRY, KLEIN, SHIVELY, BROBST, DEAN, MILLER, VANDETTE AND MEHL 244. At all times relevant to this Complaint, Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller, Vandette and Mehl were state actors by virtue of their employment with the Franklin County Sheriff’s Office. 245. 42 U.S.C. § 1983 provides that no person, acting under color of state law, shall deprive a citizen of his rights arising under the Constitution or federal laws.
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246. As an arrestee, Plaintiff Fiore-Bruno had a right to privacy protected by the Fourth Amendment.
247. Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller, Vandette and Mehl violated Plaintiff Fiore-Bruno’s Fourth Amendment right to privacy because they lacked justification to forcibly strip a woman charged only with a misdemeanor offense; failed to afford Plaintiff Fiore-Bruno any opportunity to change in private; forcibly stripped her with the presence and participation of at least five male deputies, Shively, Brobst, Dean, Miller and Vandette; and lacked justification to place her in a safety gown.
248. Plaintiff Fiore-Bruno suffered compensable physical pain and injuries as well as emotional distress as the direct and proximate result of these actions by Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller, Vandette and Mehl.
249. Plaintiff Fiore-Bruno is also entitled to punitive damages because Defendants Beaudry, Klein, Shively, Brobst, Dean, Miller, Vandette and Mehl acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to privacy. XVIII. DAWN FIORE-BRUNO INDIVIDUAL CAUSE OF ACTION FOR EXCESSIVE FORCE - 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF JIM KARNES, CHIEF DEPUTY MARK BARRETT, CHIEF DEPUTY STEVE MARTIN, INTERNAL AFFAIRS DEPUTIES FORINO, KLUMPP, STOBART AND WILLIAMSON, MAJOR MICHAEL HERRELL AND MAJOR DOUG EDGINGTON
250. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Stobart are all state actors by virtue of their employment with the Franklin County Sheriff’s Office.
251. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Stobart have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use
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of force reports and videotapes and finding the use of tasers to be “justified,” as they did in Plaintiff Fiore-Bruno’s case.
b) As in Plaintiff Fiore-Bruno’s case, they fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
c) As evidenced by the deputies’ repeated misuse of tasers as set forth in this Complaint, Defendants Sheriff Karnes, Barrett, Martin, and Stobart have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force.
252. The policies and practices of Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Stobart in their official and individual capacities constitutes deliberate indifference that in turn makes Defendant Franklin County accountable for injuries to Plaintiff Fiore-Bruno. Leach v. Shelby County Sheriff, 891 F. 2d 1241, 1245 - 1246, 1248 (6th Cir. 1989)
253. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, and Stobart acted with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiff Fiore-Bruno while acting under color of state law.
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254. These actions and failures to act by these Defendants caused Plaintiff Fiore-Bruno

to be subjected to excessive and unreasonable force in violation of the Fourth Amendment, from

which she suffered compensable physical pain and injuries as well as emotional distress.

255. Plaintiff Fiore-Bruno is also entitled to punitive damages against these Defendants

because they acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to

protection against the use of excessive force.

XIX.

DAWN FIORE-BRUNO INDIVIDUAL CAUSE OF ACTION FOR VIOLATION OF RIGHT TO PRIVACY, 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF KARNES, CHIEF DEPUTIES BARRETT AND MARTIN, INTERNAL AFFAIRS DEPUTY WILLIAMSON AND MAJOR HERRELL

256. Defendants Sheriff Karnes, Chief Deputies Barrett and Martin, Deputy

Williamson, and Major Herrell are all state actors by virtue of their employment with the

Franklin County Sheriff’s Office.

257. Chief Deputy Barrett, and then facility commander of FCCC II, Major Herrell,

were the line commanders who reviewed the deputies use of force reports detailing the forced

stripping of Plaintiff Fiore-Bruno on December 10, 2009.

258. Forcible stripping of detainees is a use of force that requires a use of force report

and review by the Internal Affairs Bureau. Internal affairs deputy Charles Williamson reviewed

the deputies’ use of force in Plaintiff Fiore-Bruno’s case and found it to be “justified.”

259. Chief Deputy Martin is the head of the Internal Affairs Bureau and is the

individual designated by Sheriff Karnes to review all use of force reports and recommendations

from deputies of the Internal Affairs Bureau. Like deputy Williamson, Chief Martin found the

deputies’ use of force in Plaintiff Fiore-Bruno’s case to be “justified.”

260. Defendants Barrett, Herrell, Williamson, Martin and Karnes ratified the violation

of Plaintiff Fiore-Bruno’s Constitutional right to privacy by finding that the deputies’ forcible

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stripping of Ms. Fiore-Bruno was a justified use of force and by failing to discipline the deputies for actions that violated her Constitutional right to privacy.
261. The ratification of the deputies’ unconstitutional violation of Plaintiff’s right to privacy and failure to discipline the deputies by Defendants Sheriff Karnes, Chief Deputies Barrett and Martin, Deputy Williamson, and Major Herrell in their official and individual capacities in turn makes Defendant Franklin County accountable for injuries to Plaintiff FioreBruno.
262. Defendants Barrett, Herrell, and Karnes also were responsible for the training and implementation of the policy on placement of detainees in safety gowns at the Franklin County Corrections Center and in this instance, FCCC II.
263. Defendants Barrett, Herrell, and Karnes failed to adequately train corrections employees on the policy for placement of detainees in safety gowns and the constitutional standards respecting detainees’ right of privacy.
264. The failure of training by Defendants Barrett, Herrell, and Karnes in their individual and official capacities constitutes deliberate indifference to the constitutional privacy rights of detainees which in turn makes Defendant Franklin County accountable for injuries to Plaintiff Fiore-Bruno.
265. Defendants Franklin County, Karnes, Barrett, Martin, Williamson, and Herrell acted with deliberate indifference by their failure to train deputies on the constitutional standards respecting detainees right of privacy and by ratifying the violation of Plaintiff Fiore-Bruno’s constitutional right of privacy while acting under color of state law.
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266. These actions and failures to act by these Defendants caused Plaintiff Fiore-Bruno to be subjected to the deprivation of her right to privacy in violation of the Fourth Amendment, from which she suffered compensable physical pain and injuries as well as emotional distress.
267. Plaintiff Fiore-Bruno is also entitled to punitive damages against these Defendants because they acted with reckless or callous indifference to Plaintiff’s Fourth Amendment right to privacy. XX. JURY DEMAND
268. Plaintiffs Shreve, Worley, Reed and Fiore-Bruno demand a trial by jury of all issues triable by a jury. XXI. CLASS ACTION ALLEGATIONS AS AGAINST FRANKLIN COUNTY, SHERIFF KARNES, DEPUTY CHIEFS BARRETT AND MARTIN, JANE/JOHN DOES, JANE/JOHN ROES, AND MAJORS HERRELL AND EDGINGTON
269. Plaintiffs Shreve and Worley bring this action on behalf of themselves and on behalf of all others similarly situated solely for declaratory and injunctive relief pursuant to Fed. R. Civ. P. 23(b)(2).
270. Plaintiffs Shreve and Worley represent a class of person defined as follows: a) All persons who, now or at any future time during the pendency of this
litigation, are or will be placed in the custody of the Franklin County Sheriff’s Department at the Franklin County Corrections Centers.
271. The proposed class is so numerous that joinder of all members is impracticable. a) Joinder is impracticable here because the class consists of thousands of current
and future inmates. Defendant Sheriff Karnes controls the information about the exact number of inmates at the FCCCs, so Plaintiffs Shreve and Worley cannot establish the precise number of class members. However, the 2007 Annual Report of the Franklin County Sheriff’s Office states that the average daily population of the FCCCs is over 1,850
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inmates. b) Because this class action is seeking prospective injunctive relief, the presence of
future or unknown members of a proposed class also makes joinder impracticable. 272. There are also questions of law and fact presented in this Complaint that are
common to the members of the proposed class. These questions include: a) Do FCCC deputies routinely use tasers on in violation of the constitutional
rights of individuals in their custody? b) Have the Defendants failed to adequately train and supervise their deputies on
the proper use of tasers? c) Do the Defendants routinely ratify the unconstitutional use of tasers by failing to
discipline deputies for improper taser use? d) Do the Defendants routinely fail to follow their written policy on the use of
tasers? 273. The claims of Plaintiffs Shreve and Worley are typical of the claims of the
members of the proposed class. a) Plaintiffs Shreve and Worley’s claims are typical of the claims of the putative
class because they, along with all proposed class members, are at risk of having their constitutional rights violated through FCCC deputies’ use of tasers.
b) Due to FCCC deputies’ widespread, arbitrary, and excessive use of tasers against persons in custody at the Franklin County Corrections Centers, all of the putative class members are similarly at risk of the violation of their constitutional rights and seek the same relief to require the Defendants to discontinue their unconstitutional use of tasers.
c) Plaintiffs Shreve and Worley and the proposed class members would all be
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proceeding under the same legal theory - that the FCCC deputies’ use of tasers violates the Plaintiffs’ constitutional rights.
274. Defendants have acted or refused to act on grounds generally applicable to the proposed class, thereby making injunctive and declaratory relief appropriate to the class as a whole.
a) Class certification is appropriate here, where all class members are at risk of the violation of their constitutional rights, but their temporary status as arrestees and inmates will frustrate any attempt to achieve systemic declaratory or injunctive relief.
b) Rule 23(b)(2) was formulated to allow for class actions where parties, as here, seek broad injunctive relief to vindicate the civil rights of a large class of individuals.
275. The named Plaintiffs, Shreve and Worley, will fairly and adequately protect the interests of the class. Plaintiffs Shreve and Worley have no interest that is now or may be potentially antagonistic to the interests of the proposed class.
276. Plaintiffs Shreve and Worley are represented by experienced attorneys employed by Ohio Legal Rights Service (OLRS). OLRS lawyers have extensive experience in litigating federal court class action cases involving federal rights and federal civil rights claims.
a) OLRS lawyers have represented clients in many complex litigation matters over several decades, including serving as class counsel. For example, OLRS lawyers have served as class counsel for approximately 20 years in Doe v. State of Ohio, Docket No. 2:91-cv-464 (S.D. Ohio), concerning the state’s implementation of its duties under the Individuals with Disabilities Education Act and its funding for special education services. In Rone v. Fireman, Docket No. C75-355A (N.D. Ohio), OLRS successfully represented a class of patients at a state psychiatric hospital against various state agency Defendants to
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improve conditions at Western Reserve Psychiatric Habilitation Center. Similarly, in Coe v. Hyde, Docket No. C2-87-719 (S.D. Ohio), OLRS lawyers represented a class of patients at Central Ohio Psychiatric Hospital and succeeded in its challenges to the conditions at that facility. In Cleveland v. Ohio Department of Mental Health, Docket No. 89-cv-3658 (Franklin Cty. Common Pleas), OLRS lawyers served as class counsel to challenge the state’s procedures for involuntary medicating individuals with mental illness, and succeeding in obtaining a permanent injunction for the Plaintiff class. Many of these cases involved the vindication of individuals’ constitutional rights through § 1983 litigation, and OLRS’ lawyers extensive involvement in these and other similar cases demonstrates that OLRS lawyers are qualified to represent the Plaintiff class.
b) OLRS has sufficient resources to adequately represent the class. OLRS is an independent state agency created in 1975 by state law to protect and advocate the rights of people with disabilities, and is Ohio’s federally designated Protection and Advocacy system. OLRS Program staff includes ombudspersons, disability rights advocates, and attorneys who advocate for individual and systemic change through individual, group and class action cases, monitoring policies and legislative activity, and providing education and training. OLRS is committed both in time and resources to this litigation to ensure that the current abuses of people with disabilities and other people at the Franklin County Corrections Centers are brought to an end. XXII. CLASS ACTION CLAIM OF ROBERT SHREVE AND MICHAEL WORLEY ON BEHALF OF A PROPOSED CLASS UNDER 42 U.S.C. § 1983 AS TO DEFENDANTS FRANKLIN COUNTY, SHERIFF KARNES, BARRETT, MARTIN, KLUMPP, FORINO, STOBART, WILLIAMSON, HERRELL AND EDGINGTON IN THEIR OFFICIAL CAPACITIES
277. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell, and Edgington are all state actors by virtue of their employment with the Franklin
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County Sheriff’s Office. 278. Corrections deputies at the Franklin County Corrections Centers have subjected
Plaintiffs Shreve and Worley, and will continue to subject members of the proposed class, to the abusive and excessive use of tasers in a manner that constitutes excessive, unreasonable and disproportionate force; recklessly and wantonly inflicts mental pain, emotional distress and trauma; is malicious and sadistic; inflicts corporal punishment for minor violations; violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from wellestablished standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of arrestees and inmates; and violates the Constitutional rights of those persons in the custody of the Franklin County Corrections Centers, in violation of their rights under the Fourth, Eighth and Fourteenth Amendments as enforced through 42 U.S.C. § 1983.
279. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington have created a policy and practice of excessive and abusive use of tasers by Franklin County Sheriff’s corrections officers because:
a) They routinely ratify corrections deputies’ misuse of tasers by reviewing the use of force reports and videotapes and finding the use of tasers to be “justified.”
b) They fail to discipline deputies whose use of tasers violates the Franklin County Sheriff’s own written policy for deployment of tasers; departs from well-established standards of law enforcement and corrections professionals; poses substantial and unjustifiable risks to the health, safety and physical integrity of the persons tased; causes needless physical harm and mental distress; and violates the Constitutional rights of persons in the custody of the Franklin County Corrections Centers.
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c) They have failed to properly train corrections deputies to use tasers in accordance with Sheriff’s Office written policy; to use tasers in accordance with manufacturer’s warnings for safe use on subjects; to use tasers in accordance with accepted law enforcement principles for use of force; and to use tasers in accordance with the federal constitutional rights of persons in custody to be free of excessive force.
280. The policies and practices of Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington in their official capacities in turn make Defendant Franklin County accountable for the harm to Plaintiffs Shreve and Worley and members of the proposed class.
281. Defendants Franklin County, Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington, under color of state law, have acted and continue to act with deliberate indifference by their failure to train deputies in the proper use of reasonable force and by ratifying the use of excessive and gratuitous force against Plaintiffs Shreve and Worley and members of the proposed class.
282. These actions and failures to act by these Defendants have caused Plaintiffs Shreve and Worley and will continue to cause members of the proposed class to be subjected to excessive and unreasonable force in violation of the Fourth, Eighth and Fourteenth Amendments. XXIII. NEED FOR DECLARATORY AND INJUNCTIVE RELIEF
283. The practices involving misuse of tasers discussed in this Complaint are ongoing because the culture at the Franklin County Sheriff’s Office fosters them.
284. There is no accountability for the misuse of tasers by Franklin County corrections deputies. These practices have repeatedly been found to be “justified” by the chain of command at the Franklin County Sheriff’s Office, including facility commanders, the Internal Affairs
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Bureau and the Chief Deputy of Corrections. Out of a sample of 180 use of force reports involving tasers since January 1, 2008, the use of force was found “not justified” in fewer than a handful of cases.
285. Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Stobart, Williamson, Majors Herrell and Edgington have repeatedly authorized and ratified the custom, policy and practice of misuse of tasers by the corrections deputies whom they supervise and for whom they set policy.
286. These Defendants also have failed to adequately train and supervise corrections deputies to use tasers in a manner that is safe, appropriate, conforms to policy and adheres to Constitutional standards for use of force. By their actions, and their failures to act, these Defendants have been and remain deliberately indifferent to the risk of violating the Constitutional rights of Plaintiffs Shreve and Worley and the members of the proposed Plaintiff class.
287. The deliberate indifference of Defendants Sheriff Karnes, Barrett, Martin, Klumpp, Forino, Williamson, Stobart, Herrell and Edgington results in the failure to adequately train, supervise and discipline corrections deputies in their use of tasers has caused and will continue to cause violations of the Constitutional rights of Plaintiffs Shreve and Worley and the members of the proposed Plaintiff class.
288. These ongoing practices present the real threat of physical injury and psychological trauma to individuals who currently are in custody at the Franklin County Corrections Centers or will be in custody of the Franklin County Correction Centers during the pendency of this litigation.
289. Plaintiffs Shreve and Worley, as well as the members of the proposed class, are
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entitled to declaratory and injunctive relief. Defendants have engaged and are continuing to engage in the challenged policies and practices that were used against Plaintiffs Shreve and Worley.
290. Defendants have acted and, without immediate injunctive relief, will continue to act under color of state law to deprive Plaintiffs Shreve and Worley and the members of the proposed class of their Constitutional rights to be free of excessive force.
291. Plaintiffs Shreve and Worley and the members of the proposed class have no adequate remedy at law. In the absence of injunctive relief they will continue to suffer the real threat of irreparable harm as a result of the existence of a policy and practice that encourages and approves the misuse of tasers by Franklin County Corrections deputies. XXIV. PRAYER FOR RELIEF
Therefore, Plaintiffs request that this Court: A. Assume jurisdiction over this matter; B. Certify the proposed class as: All persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriff’s Department at the Franklin County Corrections Centers; C. Issue a declaratory judgment holding that the Defendants have violated the rights of Plaintiffs Shreve and Worley and the proposed class under the United States Constitution as enforced through 42 U.S.C. § 1983; D. Issue such temporary or preliminary relief as requested by Plaintiffs Shreve and Worley in the course of these proceedings to prevent irreparable harm from occurring to them and the proposed class; E. Enjoin the Defendants from continuing to violate the Constitutional rights of Plaintiffs Shreve and Worley and the members of the proposed class as set forth in this
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Complaint;
F. Enjoin the Defendants from continuing to violate their own policy on use of the X26
taser;
G. Appoint an expert with extensive experience in corrections who is not associated
with any party to this action to monitor, review, and oversee all use of force reports involving
deployment of tasers by Franklin County Sheriff’s corrections deputies and to recommend
appropriate discipline and conduct training of deputies where warranted;
H. Grant judgment in favor of Plaintiffs Shreve, Worley, Reed and Fiore-Bruno, and
against the Defendants, individually and collectively, for compensatory damages for Plaintiffs’
injuries, pain and suffering and emotional distress in an amount to be proven at trial;
I. Award punitive damages to Plaintiffs Shreve, Worley, Reed and Fiore-Bruno and
against the Defendants, individually and collectively, in an amount to be proven at trial;
J. Award Plaintiffs their attorneys’ fees and costs as permitted by law; and
K. Provide such other relief as is just and equitable.
Respectfully submitted,
s/ Jane P. Perry Jane P. Perry (0029698) jperry@olrs.state.oh.us Trial Attorney for Plaintiffs Kristen N. Henry (0082382) khenry@olrs.state.oh.us Kerstin Sjoberg-Witt (0076405) ksjoberg-witt@olrs.state.oh.us Legal Director OHIO LEGAL RIGHTS SERVICE 50 W. Broad Street, Suite 1400 Columbus, Ohio 43215 (614) 466-7264 - telephone (614) 644-1888 - fax
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Case: 2:10-cv-00644-EAS-MRA Doc #: 104 Filed: 04/29/11 Page: 54 of 54 PAGEID #: 2074 CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Third Amended Individual Complaint for Damages and Third Amended Class Action Complaint for Declaratory and Injunctive Relief was filed on April 29, 2011 with the Clerk of Court using the CM/ECF system, which will provide notice of such filing to all registered parties.
s/Jane P. Perry Jane P. Perry (0029698) jperry@olrs.state.oh.us Trial Attorney for Plaintiffs
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 Case: 2:10-cv-00644-EAS-MRA Doc #: 175 Filed: 02/07/14 Page: 1 of 36 PAGEID #: 3460(1 of 36)

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: February 06, 2014

Mr. Noure Alo 4249 Easton Way, Suite 125 Columbus, OH 43219
Ms. Mary Jane Martin Mr. Nick A. Soulas Jr. Prosecuting Attorney's Office for the County of Franklin 373 S. High Street, 13th Floor Columbus, OH 43215
Re: Case No. 13-3119, Robert Shreve, et al v. Franklin County Ohio, et al Originating Case Nos. : 2:10-cv-00644; 2:11-cv-00415; 2:11-cv-00261 : 2:12-cv-00070
Dear Counsel,
The court today announced its decision in the above-styled case.
Enclosed is a copy of the court's opinion together with the judgment which has been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.
Yours very truly,

Deborah S. Hunt, Clerk

cc: Mr. John P. Hehman Enclosures Mandate to issue.

Cathryn Lovely Deputy Clerk

Case: 2:10-cv-00644-EAS-MRA Doc #: 175 Filed: 02/07/14 Page: 2 of 36 PAGEID #: 3461(2 of 36)

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0028p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

ROBERT SHREVE et al.,

X

Plaintiffs,

-

-

MICHAEL REED, Individually, Plaintiff-Appellant,

-,>

-

v.

-

-

FRANKLIN COUNTY, OHIO et al.,

-

Defendants-Appellees. N

No. 13-3119

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:10-cv-00644; 2:11-cv-00261; 2:11-cv-00415; 2:12-cv-00070.
Edmund A. Sargus, Jr., District Judge.

Decided and Filed: February 6, 2014

Before: BOGGS, CLAY, and GILMAN, Circuit Judges.

_________________

COUNSEL
ON BRIEF: Noure Alo, HARRISON ALO, ATTORNEYS AT LAW, Columbus, Ohio, for Appellant. Mary Jane Martin, FRANKLIN COUNTY, OHIO PROSECUTOR’S OFFICE, Columbus, Ohio, for Appellees.
GILMAN, J., delivered the opinion of the court, in which BOGGS, J., joined. CLAY, J. (pp. 18–34), delivered a separate dissenting opinion.
_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. This case arises out of a putative class action against Franklin County, Ohio, its sheriff Zachary Scott, and 14 of the sheriff’s deputies for allegedly using excessive force against detainees in the county jail and for violating the privacy of detainees through strip searches. Settlements were reached with

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all the plaintiffs other than Michael Reed, leaving Reed as the only detainee whose claims are presently before us. Reed alleges that the deputies used excessive force against him, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, when they subdued him with a Taser while he was in custody. He also argues that the county failed to train the deputies on the proper use of Tasers, thereby creating a policy and practice of abuse.
The defendants moved for summary judgment, with the individual defendants claiming qualified immunity and all defendants denying any constitutional violation. After determining that “no rational fact finder could conclude that the defendant deputies acted with conscience-shocking malice or sadism towards Mr. Reed during either the Cell Incident or the Hospital Incident,” the district court granted the defendants’ motion. For the reasons set forth below, we AFFIRM the judgment of the district court.
I. BACKGROUND
A. Factual background
Reed’s claims arise out of two incidents that both occurred on January 29, 2009. In the first incident (the Cell Incident), which took place inside Reed’s cell at the Franklin County Corrections Center II (FCCC II), the sheriff’s deputies were unable to handcuff Reed due to his resistance and twice used a Taser to subdue him. The second incident (the Hospital Incident) occurred later that day at the Mount Carmel West Hospital Emergency Room. There, a deputy used a Taser on Reed after Reed lunged at the deputy.
1. The Cell Incident
The genesis of the events leading to Reed’s detention began in the early 1990s when Reed was involved in a motorcycle accident. As a result of the accident, Reed suffers from seizures. In August 2008, Reed had a seizure while walking down the street in Columbus, Ohio. Emergency personnel arrived and tried to take Reed to the hospital, but Reed violently resisted. Reed was taken into custody and charged with assaulting a peace officer.

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The Franklin County Common Pleas Court found Reed not guilty by reason of insanity in December 2008 and ordered him committed to the Twin Valley Behavioral Healthcare Forensic Unit. But because the Twin Valley facility did not have space for Reed, he was still at FCCC II in January 2009.
On January 29, 2009, Reed suffered a seizure in his cell. Several sheriff’s deputies entered the cell and attempted to handcuff Reed in order to transport him to a nearby hospital for medical treatment. In their efforts to handcuff Reed, the deputies used a Taser on him twice. The entire incident is captured on video. Neither party contests the video’s admissibility or its completeness in portraying the relevant events. Instead, the parties dispute whether the video shows that the deputies violated Reed’s constitutional rights by using excessive force.
The video shows Reed sitting on the floor of his cell, apparently disoriented, with his hands raised and a cut above his left eye. As the recording begins, the deputies tell Reed four times to “Put your hands behind you.” The deputies explain to Reed that they are “going to put some cuffs on you for your safety and ours.” Reed then lowers his hands slightly, and a deputy takes Reed’s left hand, moves it behind Reed’s back, and places one of the handcuffs on that hand.
But as the deputy tries to take Reed’s right hand and attach it to the other handcuff, Reed pulls the hand back and holds it across his chest. Deputies then coax Reed to sit up, but Reed twists to his left, leans back, and begins groaning. While this is taking place, the deputies tell Reed four more times to put his hands behind his back. Now lying on the floor on his back, Reed again grasps the cuff on his left hand with his right. Twice more the deputies tell Reed to put his hands behind his back. They also tell Reed that he is “going to get Tased” if he does not cooperate and, four times, that it will hurt. The deputies then tell him three more times to “let go of the cuff.” At the same time, a deputy again tries to pull Reed’s hands apart and finish handcuffing him.
During this time, the deputies were aware that Reed’s loose handcuff posed a threat to their physical safety. One stated that he considered the loose handcuff “a major danger.” Another said that the open handcuff presented a “sharp [and] jagged edge” and

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that people had been killed from open handcuffs used as a weapon. This deputy had been trained never to lose control of an inmate with a loose handcuff.
Unsuccessful in all their efforts, the deputies step back from Reed and a different deputy volunteers to “get his cuff.” Two deputies try to pry Reed’s hands apart, but are unable to do so. Reed then crawls towards the officers, at which point a deputy uses a Taser on Reed. Reed falls onto his back and begins groaning and shaking in pain. A deputy then instructs Reed, “Don’t fight anymore.”
Recovering from the shock, Reed reaches towards the deputies and says “OK, OK, OK.” Reed again raises his hands in the air. The deputies instruct Reed “put your hands behind your back” eight times. But Reed mumbles something unintelligible and then says “please.” Reed continues to hold his hands in front of him and says “please, please, please, please.” Three deputies again attempt to grab Reed’s hands and secure the right handcuff on him, but are unsuccessful.
A deputy then uses the Taser on Reed a second time. Reed is told that they need to handcuff him so that they can take him out of the cell for medical treatment. One asks him “Do you want to get shocked again? Say no. Say no.” Even after using a Taser twice, three deputies struggled to get the handcuff on Reed’s right hand. Approximately two minutes after entering the cell, the deputies were finally able to secure the handcuff.
Reed continued to thrash about, even with both hands handcuffed behind his back. After five deputies held Reed down and made three further commands to “stop resisting,” the deputies finally managed to subdue Reed’s thrashing on the cell floor. The deputies were then able to secure leg irons on Reed and walk him out of his cell.
2. The Hospital Incident
According to the deposition testimony of Deputy James Dishong, he and Deputy Matthew Carter drove Reed to Mount Carmel West Hospital after Reed was secured. Deputy Dishong’s account of what happened at the hospital is uncontested in the record; no other depositions or record evidence speak to the incident.

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Dishong testified that he and Carter took Reed to the hospital and eventually into a small examination space bordered by a wall and curtains where Reed was seen by a nurse practitioner. In the examination space, Dishong removed Reed’s handcuffs and used them to attach Reed’s leg irons to the bed rail, giving Reed approximately a fivefoot radius of movement. The examination itself took place without incident.
Dishong, Carter, and Reed were waiting for the paperwork to be completed when Carter stepped out to use the restroom. As soon as Carter was gone, Reed turned to his left and began muttering. Dishong asked Reed if everything was all right. Reed continued muttering and squatted on the bed. Dishong told Reed to “lay back down,” but Reed did not heed Dishong’s command. He instead asked Dishong: “Do you want a piece of me?”
Dishong again instructed Reed to “lay back” or he would “have to be forced to tase you.” At that point Reed lunged toward Dishong with his hands raised. Dishong Tased him, the probes striking Reed’s right shoulder and left leg. Reed struck the wall and fell to the floor.
B. Procedural background
In September 2012, the defendants moved for summary judgment on Reed’s individual claims. Reed timely responded, but did not file any affidavits or additional proof in support of his Brief in Opposition. The district court granted summary judgment for all the defendants. Canvassing the record, the court found no evidence that they had acted with the requisite intent—“maliciously and sadistically for the very purpose of causing harm”—to violate Reed’s Fourteenth Amendment rights. See Darrah v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001) (setting forth the standard for liability under the Fourteenth Amendment).
Reed argues on appeal that the district court erred because it “relied on the Defendant’s [sic] narration of facts” and thus “failed to view the facts in the light most favorable to the non[-]moving party.” His brief offers an alternative narration of the facts, relying on the video and his Second Amended Complaint. He claims that the

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“officers could have handcuffed Mr. Reed without the use of a Taser. Their utilization of the Taser in this instance was a clear violation of department policy relating to the usage of Tasers.” The defendants respond that the district court correctly determined that Reed identified no genuine dispute of material fact, that Reed’s claims arise under the Fourteenth Amendment, and that the court correctly found that Reed suffered no constitutional violation.
II. LEGAL STANDARD
A. Operative pleading
Before we analyze the substance of Reed’s appeal, one procedural point warrants clarification. Reed’s brief filed in this court cites extensively to his Second Amended Complaint. But Reed’s Third Amended Complaint superseded his Second Amended Complaint when the magistrate judge granted Reed’s Motion to Amend the Complaint. See 61B Am. Jur. 2d Pleading § 789 (“An amended pleading that is complete in itself and does not refer to or adopt a former pleading as a part of it supersedes or supplants the former pleading.”). Accordingly, any reliance that Reed places on his Second Amended Complaint is unavailing and should instead shift to his Third Amended Complaint. This matters little, however, because the evidence in the record, not the pleadings, governs whether a party has raised a genuine dispute of material fact sufficient to survive a motion for summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
B. Summary judgment
“We review the district court’s grant of summary judgment on qualified immunity grounds de novo.” Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013). Summary judgment is proper 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). No genuine dispute of material fact exists where the record “taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately the court evaluates

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“whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). The court must draw all reasonable inferences in favor of the nonmoving party. Burgess, 735 F.3d at 471.
A party asserting that a fact is genuinely disputed may not rely on the pleadings to establish that fact. Rule 56(c)(1) of the Federal Rules of Civil Procedure provides that
[a] party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.
That is, a party must “go beyond the pleadings.” Celotex, 477 U.S. at 324. “A dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a verdict in favor of the non-moving party.” Gallagher v. C.H. Robinson Worldwide, Inc., 567 F.3d 263, 270 (6th Cir. 2009) (emphasis added).
In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court addressed the role of video evidence at summary judgment. The Court held that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. at 380.
In that case, the plaintiff Harris claimed that the defendant police officer, Scott, used excessive force when he bumped Harris’s speeding car with his police cruiser, ultimately rendering Harris a quadriplegic. Id. at 375. Harris contended that when Scott rammed his car, Harris was in full control and that the roads ahead were clear, so that the jury could have found Scott’s use of force excessive. Id. at 375–76. The Supreme Court disagreed, observing that “[f]ar from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.” Id. at 380. Accordingly, the Court determined that

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Harris’s “version of events is so utterly discredited by the record that no reasonable jury could have believed him.” Id. It thus held that the lower courts “should have viewed the facts in the light depicted by the videotape.” Id. at 381.
Scott’s holding is twofold. First, Scott stands for the proposition that witness accounts seeking to contradict an unambiguous video recording do not create a triable issue. Id. at 380-81. Second, Scott reaffirmed the holdings of Matsushita and Anderson that, in disposing of a motion for summary judgment, a court need draw only reasonable inferences in favor of the nonmoving party; it need not construe the record “in such a manner that is wholly unsupportable—in the view of any reasonable jury—by the video recording.” Marvin v. City of Taylor, 509 F.3d 234, 239 (6th Cir. 2007); see also Green v. Throckmorton, 681 F.3d 853, 859 (6th Cir. 2012) (holding that the court should “view[] the facts in the light depicted by the videotape,” and that “[t]he central issue is whether the evidence . . . is so one-sided that one party must prevail as a matter of law”) (internal quotation marks omitted). This court has also clarified that there is “nothing in the Scott analysis that suggests that it should be restricted to cases involving videotapes.” Coble v. City of White House, 634 F.3d 865, 868–69 (6th Cir. 2011).
III. RELEVANT CONSTITUTIONAL STANDARD
A. Substantive basis for Reed’s claims
Before analyzing the evidence in this case, we first address the substantive basis for Reed’s claims. Reed pleaded his claims under 42 U.S.C. § 1983. Section 1983 provides that
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .
Reed claims that the deputies violated his rights under either the Eighth or Fourteenth Amendments to the United States Constitution.

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Typically, the Fourteenth Amendment’s Due Process Clause protects pretrial detainees from excessive force that amounts to punishment, Leary v. Livingston Cnty., 528 F.3d 438, 443 (6th Cir. 2008), and the Eighth Amendment protects convicted prisoners from “unnecessary and wanton infliction of pain,” Graham v. Connor, 490 U.S. 386, 398 n.11 (1989) (internal quotation marks omitted). The district court determined that Reed’s situation—awaiting transfer to a mental-health facility after being found not guilty by reason of insanity—“d[id] not fit squarely into any of these categories.” But citing this court’s decision in Lanman v. Hinson, 529 F.3d 673, 680–81 (6th Cir. 2008), the district court held that the Fourteenth Amendment applied to Reed.
Lanman clarified that
[i]f the plaintiff was a convicted prisoner at the time of the incident, then the Eighth Amendment deliberate indifference standard sets the standard for an excessive force claim. But if the plaintiff was a free person, and the use of force occurred in the course of an arrest or other seizure, then the plaintiff’s claim arises under the Fourth Amendment and its reasonableness standard.
Id. at 680 (citations omitted). Of particular significance for the present case is Lamman’s insight that “[t]he Fourteenth Amendment is the source of a pretrial detainee’s excessive force claim because when a plaintiff is not in a situation where his rights are governed by the particular provisions of the Fourth or Eighth Amendments, the more generally applicable Due Process Clause of the Fourteenth Amendment provides the individual with protection against physical abuse by officials.” Id. at 680–81. But “[n]otwithstanding the Due Process Clause’s broader applicability, we remain cognizant of the fact that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” Burgess v. Fischer, 735 F.3d 462, 473 (6th Cir. 2013) (internal quotation marks omitted).
The difference is this: An excessive-force claim under the Eighth Amendment requires that the plaintiff show that force was not “applied in a good-faith effort to

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maintain or restore discipline,” but instead applied “maliciously and sadistically to cause harm.” See Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995). But an excessiveforce claim under the Fourteenth Amendment operates on a sliding scale. Generally, to constitute a Fourteenth Amendment violation, an official’s conduct must “shock[] the conscience.” Burgess, 735 F.3d at 473.
When officials respond to “a rapidly evolving, fluid, and dangerous predicament,” id. (internal quotation marks omitted), the Fourteenth Amendment’s excessive-force standard is the same as the Eighth Amendment’s: “[T]he plaintiff must show that the defendant acted maliciously and sadistically for the very purpose of causing harm rather than in a good faith effort to maintain or restore discipline.” Id. (internal quotation marks omitted). But “[w]here defendants are afforded a reasonable opportunity to deliberate . . . [,] their actions will be deemed conscience-shocking if they were taken with deliberate indifference towards the plaintiff's federally protected rights.” Id. (alteration in original) (internal quotation marks omitted).
This state of culpability is clearly set out in Darrah v. City of Oak Park, 255 F.3d 301 (6th Cir. 2001):
[I]n situations where the implicated government actors are afforded a reasonable opportunity to deliberate various alternatives prior to electing a course of action . . . , their actions will be deemed conscience-shocking if they were taken with deliberate indifference towards the plaintiff’s federally protected rights. In contradistinction, in a rapidly evolving, fluid, and dangerous predicament which precludes the luxury of calm and reflective pre-response deliberation . . . , public servants’ reflexive actions shock the conscience only if they involved force employed maliciously and sadistically for the very purpose of causing harm rather than in a good faith effort to maintain or restore discipline.
Id. at 306 (alteration in original) (internal quotation marks omitted); see also Burgess, 735 F.3d at 473 (same). We will therefore evaluate this case according to the Darrah standard. Accord Youngberg v. Romero, 457 U.S. 307, 314 (1982) (considering “the substantive rights of involuntarily committed mentally retarded persons under the Fourteenth Amendment to the Constitution”); Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834, 848 (6th Cir. 2002) (holding that “[t]he involuntarily committed

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have greater rights regarding confinement under the Fourteenth Amendment than criminals are due under the Eighth Amendment”).
B. Qualified immunity
Also at play in this case is the doctrine of qualified immunity. “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Stanton v. Sims, No. 134 S. Ct. 3, 4 (2013) (internal quotation marks omitted). “Once raised, it is the plaintiff's burden to show that the defendants are not entitled to qualified immunity.” Burgess, 735 F.3d at 472. In the Sixth Circuit we have generally “use[d] a two-step analysis: (1) viewing the facts in the light most favorable to the plaintiff, we determine whether the allegations give rise to a constitutional violation; and (2) we assess whether the right was clearly established at the time of the incident.” Id. Because we resolve the present case by affirming the determination that no constitutional violation occurred, we need not address whether the alleged right was clearly established. See id. (“We can consider these steps in any order.”).
IV. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS
A. The Cell Incident
The video recording in this case provides sufficient evidence for a jury to find that the situation in the cell afforded the deputies “a reasonable opportunity to deliberate various alternatives prior to electing a course of action.” Darrah, 255 F.3d at 306 (internal quotation marks omitted). Reed was warned multiple times that he was “going to get Tased” if he did not cooperate and that it would hurt. The deputies also tried to wrestle him to the ground to cuff him several times before the first use of the Taser. After each attempt, they backed away. And, at one point, a deputy volunteered to “get his cuff” and other deputies assisted him. These are the kinds of statements that would permit a jury to infer that the deputies had an opportunity to deliberate before taking the actions that they did. See McKenna v. Edgell, 617 F.3d 432, 441 (6th Cir. 2010) (“[W]e

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ask the jury to determine whether a set of facts amounted to exigent circumstances.”) (emphasis in original).
But these same facts also compel the conclusion that the deputies did not act with “deliberate indifference towards [Reed’s] federally protected rights.” Darrah, 255 F.3d at 306 (internal quotation marks omitted). That they tried to handcuff him several times before using the Taser shows that they sought to minimize the Taser’s use. The deputies also warned Reed that the Taser would hurt and that he did not want to be Tased, which showed that they were trying to avoid unnecessary harm.
Another crucial factor is the uncontradicted testimony indicating that the deputies faced an ongoing danger with Reed thrashing about on the cell floor with a loose handcuff. The deputies had been trained never to lose control of an inmate with a loose handcuff because they knew that it could be used as a weapon. Under these circumstances, even if Reed was suffering from a seizure and unable to comprehend the deputies’ statements, Reed could not establish an excessive-force claim under the Fourteenth Amendment when the deputies used a Taser to subdue him and secure the handcuffs.
Nothing in the record indicates that the deputies acted for any reason other than getting medical treatment for Reed following his seizure, a serious medical need to which indifference would likely have been a constitutional violation in itself. Reed in fact does not challenge the reasonableness of the deputies’ decision to handcuff him—for their protection and his—prior to transporting him to the hospital. His challenge is instead limited to the use of the Taser. But we find no basis to hold that the deputies’ use of a Taser after several failed attempts to wrestle the handcuffs onto Reed was “conscience shocking.”
The dissent responds with the point that Reed’s failure to comply was due to him acting “reflexively” (Dissent at p. 28), implying that Reed’s actions might not have been intentional. Reed’s intent is irrelevant, however, because the constitutional inquiry centers on the deputies’ intent, not Reed’s. See Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir. 2002) (holding that the plaintiff “must demonstrate that the state acted

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with the requisite culpability to establish a substantive due process violation under the Fourteenth Amendment”) (internal quotation marks omitted) (emphasis added). A jury would therefore not be entitled to find that the Tasing was done with deliberate indifference toward Reed’s federally protected rights. Summary judgment was thus proper on Reed’s claims related to the Cell Incident.
Reed attempts to circumvent this conclusion through bare assertion. In his response to the defendants’ motion for summary judgment, Reed said only that “[i]t is clear from the videos and the facts and circumstances of the case that [the deputies] had an express intent to punish Mr. Reed.” This statement appears without any citation to the record, as does the entire recounting of events in Reed’s Response. But Rule 56(c) of the Federal Rules of Civil Procedure requires a party to “go beyond the pleadings” and identify admissible evidence of the essential elements of his claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Reed’s complaint does not satisfy this standard for the simple reason that pleadings are not evidence. Compare Fed. R. Civ. P. 8 (defining pleadings) with Fed. R. Evid. 401 (defining relevant evidence).
The dissent responds that “[i]n light of all of the evidence, including the video, a reasonable jury could undoubtedly find that the officers’ use of force shocks the conscience because it was taken with deliberate indifference toward Reed’s federally protected rights.” (Dissent at p. 27) But Reed did not cite any materials supporting an inference that deputies acted with deliberate indifference, and the district court “need consider only the cited materials.” Fed. R. Civ. P. 56(c)(3). The dissent cannot now attempt to salvage Reed’s claims by providing record citations that Reed himself failed to present to the district court.
All of this leaves Reed with nothing more than the argument that we should infer deliberate indifference from the video recording. But we have seen the recording. It shows that three deputies tried three times to handcuff Reed before the first use of a Taser, and they were again unsuccessful before deploying the Taser a second time; it shows that they instructed him at least a dozen times to put his hands behind his back so that they could put handcuffs on him; it shows Reed flailing around with a loose

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handcuff; and finally, it shows that they warned him four times that the Taser would hurt. The deputies’ use of the Taser in this context may have been a miscalculation, but it does not “shock the conscience.” See Darrah, 255 F.3d at 306.
In reaching the opposite conclusion, the dissent relies on an unpublished opinion from this court, Eldridge v. City of Warren, 533 F. App’x 529, 533 (6th Cir. 2013), to draw an illusory distinction between active resistance and mere noncompliance. The dissent contends that the video recording depicts the latter and that only active resistance can possibly justify the use of a Taser. This theory has numerous pitfalls. First, Eldridge is an unpublished opinion that “fails to provide any precedential guidance.” See United States v. Johnson, 467 F.3d 559, 566 (6th Cir. 2006). This court has therefore not “recognized an important distinction between noncompliance and ‘active resistance’” as claimed by our dissenting colleague. (Dissent at p. 28)
Second, even if Eldridge were good law, it is easily distinguishable from Reed’s case. Eldridge concerned a suspected drunk driver who had driven his car into a “condominium complex, over a curb, and through patches of grass” before “eventually [coming] to a halt at a construction area, with further progress stifled by temporary construction barricades.” 533 F. App’x at 530. Officers approached the driver and repeatedly ordered him out of his car. When the driver refused to comply, they removed the car keys and “tugg[ed]” on his arm in an attempt to remove his hands from the steering wheel. Id. at 530–31. The driver continued responding simply “I’m fine” to the officer’s commands until one of the officers used a Taser. Id at 531. Under these circumstances, this court determined that the issue of excessive force was a question for the jury. Id. at 533.
The deputies here, in contrast, used the Taser only after multiple warnings and multiple attempts to wrestle Reed’s arms behind his back. Moreover, the deputies testified that the loose handcuff on Reed’s left hand could have been used as a weapon. Tasing a struggling detainee with a loose metal handcuff is simply not akin to Tasing a suspected drunk driver who was doing nothing more than declining to take his hands off the steering wheel.

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One further point distinguishes Eldridge: Eldridge concerned the suspect’s Fourth Amendment rights because the driver had not yet been arrested. See id. at 532. Under the Fourth Amendment, a court must determine whether the officers’ conduct was “objectively reasonable.” See Graham v. Connor, 490 U.S. 386, 397 (1989). Reed, however, had already been arrested and was in custody at the county jail. As such, Reed’s claim arises under the Fourteenth Amendment, a standard that is more difficult for a plaintiff to meet. See Darrah, 255 F.3d at 306 (noting that excessive force under the Fourteenth Amendment is a “substantially higher hurdle” for the plaintiff to meet than the “objective reasonableness test of Graham, in which excessive force can be found if the officer’s actions, in light of the totality of the circumstances, were not objectively reasonable”) (internal quotation marks omitted).
Moreover, this case is not a reprise of Harris v. City of Circleville, 583 F.3d 356 (6th Cir. 2009). In Harris, police officers had placed Harris in handcuffs with his hands behind his back. Id. at 360. While one officer told Harris to kneel down, another held Harris’s hands up, making it impossible for Harris to comply with the command to kneel. Id. at 361. The officers then forcibly subdued Harris and deployed a Taser. Critically, the court recognized that “Harris was not doing anything to resist.” Id. The deputies here, in contrast, used the Taser only after multiple warnings and, more importantly, multiple attempts to wrestle Reed’s arms behind his back.
We also do not believe that the the deputies were constitutionally required to exhaust all possible alternatives before using a Taser. Our dissenting colleague proposes that the deputies could have finished handcuffing Reed in front of his body or waited until Reed had recovered from the lingering effects of the seizure. The first proposed alternative raises an impossible hypothetical—one which finds no support in the record, is not advocated by Reed himself, and cannot be determined from the video recording. Indeed the recording shows that Reed began thrashing each time the deputies attempted to secure him, not that he was averse only to placing his hands behind his back.
And requiring the deputies to wait until Reed had fully recovered from the seizure’s lingering effects would have placed the deputies in an impossible Catch-22

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situation: wait too long and risk being accused of the “unnecessary and wanton infliction of pain” by their deliberate indifference to Reed’s serious medical needs, see Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks omitted), or act too quickly and risk being charged with “deliberate indifference towards the plaintiff’s federally protected rights,” see Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (internal quotation marks omitted). We decline to put the onus on the deputies to assess at their risk the seriousness of Reed’s seizure in order to determine whether it warranted immediate medical treatment. Their decision to use a Taser to subdue Reed before taking him to the hospital might have been unwise, but it was not unconstitutional.
B. The Hospital Incident
Likewise, we agree with the district court’s determination that Deputy Dishong did not violate Reed’s constitutional rights during the Hospital Incident. Dishong testified that as soon as Carter was gone, Reed turned to his left and began muttering and squatted on the bed. He told Reed to “lay back down,” but Reed did not heed the command. Instead, Reed asked Dishong “Do you want a piece of me?” and lunged toward Dishong with his hands raised. Dishong explained that he had “no way of retreating” because of the cramped quarters and Reed’s position over him while standing on the bed. With these considerations in mind, Dishong Tased him.
This testimony does not support the conclusion that Dishong was “afforded a reasonable opportunity to deliberate,” and Reed offers no evidence of his own. See Darrah, 255 F.3d at 306 (internal quotation marks omitted). On the record before us, there can be no dispute that the Hospital Incident was “a rapidly evolving, fluid, and dangerous predicament which precludes the luxury of calm and reflective pre-response deliberation . . . .” Id. (internal quotation marks omitted).
In this context, Reed must show that Dishong’s actions “involved force employed maliciously and sadistically for the very purpose of causing harm rather than in a good faith effort to maintain or restore discipline.” Id. (internal quotation marks omitted). He

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directs us to no such proof. Absent any evidence in the record that Dishong acted with malicious or sadistic intent, a jury would not be entitled to so find.
The dissent responds by arguing that Dishong may have violated the county’s use-of-force policy prohibiting the use of Tasers on inmates who are restrained by leg irons. But the dissent cites no authority for the proposition that any violation of a county’s use-of-force policy equates to a constitutional violation. The relevant question, in other words, is not whether Dishong used his Taser on an inmate restrained by leg irons, but whether he did so “maliciously and sadistically for the very purpose of causing harm.” Id. (internal quotation marks omitted). On this question, the evidence is beyond dispute that he did not. Summary judgment in favor of Dishong was therefore appropriate.
V. CLAIMS AGAINST FRANKLIN COUNTY
We now turn to Reed’s claims against Franklin County, which rely on Monell v. Department of Social Services, 436 U.S. 658 (1978). Monell held that “[l]ocal governing bodies . . . can be sued directly under § 1983 . . . where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Id. at 690. But “[l]iability against [a local government] arises only if it violated a constitutional or statutory right through a custom or practice of doing so.” Hidden Vill., LLC v. City of Lakewood, 734 F.3d 519, 523 (6th Cir. 2013). Because we conclude that Reed suffered no violation of his constitutional rights, Reed’s claims against Franklin County fail. His Monell claims are therefore without merit.
VI. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.

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_________________
DISSENT _________________
CLAY, Circuit Judge, dissenting. The majority suggests that Plaintiff Michael Reed fails “to ‘go beyond the pleadings’ and identify admissible evidence of the essential elements of his claim,” see Majority at 13 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)); I strongly disagree. Reed’s allegations are supported by convincing evidence: the video recording of the events that transpired in Reed’s jail cell and depositions in which the officers admit to thrice tasing a nonviolent individual in the immediate aftermath of a seizure. To bolster its argument that Reed’s claim rests solely on the pleadings, the majority seems to suggest that Reed submitted “only” one sentence in response to Defendants’ motion for summary judgment and failed to cite to any evidence in the record. See Majority at 13. This is misleading; Reed’s response to Defendants’ motion for summary judgment was eighteen pages long, and referred repeatedly to the video recording in the record. Because the majority, like the district court below, misapplies the holding of Scott v. Harris, 550 U.S. 372 (2007), and by doing so usurps the role of the jury, I respectfully dissent.
I.
My disagreement begins with the majority’s narration of the facts in this case. The evidence in the record, including the video, establishes the facts as follows:
As the result of an accident that caused a traumatic brain injury many years ago, Reed suffers from both tonic clonic seizures (stiffening and rigidity of muscles followed by rhythmic jerking motions) and complex partial seizures (the person appears to stare blankly and loses contact with his surroundings, often followed by chewing movements, mumbling, and unorganized movements). Like many who suffer from seizures, Reed usually does not recall having the seizure and becomes confused, disoriented, and fatigued in the aftermath.

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In August 2008, Reed had a seizure while walking on the street. Emergency medical technicians (“EMTs”) responded to the scene, and Reed allegedly became aggressive and assaultive when an EMT rapidly approached him to try to take him to the hospital. Instead of receiving medical attention, Reed was charged with assaulting a peace officer and taken to jail at the Franklin County Corrections Center II (“FCCCII”).
On December 23, 2008, Judge Michael Holbrook of the Franklin County Common Pleas Court found Reed not guilty by reason of insanity (“NGRI”) and ordered Reed to be committed to the Twin Valley Behavioral Healthcare Forensic Unit. However, due to overcrowding at the behavioral healthcare facility, Reed had to stay at FCCCII until a bed became available at Twin Valley. Although the court recognized that Reed did not belong at FCCCII due to his mental health and medical conditions, Reed was nevertheless sent to FCCCII, where he was treated as a prisoner.
On January 29, 2009, Reed had a seizure in his jail cell in FCCCII. Deputy James Jodrey called a “code blue medical,” which signals that an inmate requires medical attention. See Att. Internal Affairs Report 09-048, Jodrey Statement, ECF No. 163-1. Corporal Sam Byrd and Deputies Sam Montrose, James Jodrey, Clayton Kern and Chris Starner (collectively, “officers”) entered Reed’s jail cell in response to the code blue. They were all aware that Reed had just had a seizure, and that they were to assist in transporting Reed to the hospital for medical treatment. Id. All of the officers were also aware that Reed gets disoriented and confused immediately following a seizure, and that Reed was not in a state to understand or obey their commands. See Att. Internal Affairs Report 09-048, ECF No. 163-1.
Reed was on the floor of his cell when the five officers entered. Reed was dazed, confused, and clearly disoriented. See Video at 00:00:00–00:00:29, ECF No. 160. For ten seconds, the five officers shouted rapid commands at Reed, demanding that Reed put his hands behind his back so that the officers could handcuff him. Id. at 00:00:01–00:00:12. It is clear from the video, and should have been obvious to the

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officers, that Reed did not understand a single word that the officers said. Reed sat motionless on the floor with his hands up in “surrender” position and stared blankly at the five uniformed men in his cell. Id.
Although Reed did not put either of his hands behind his back, the officers attempted to handcuff him anyway. Id. at 00:00:13. Reed did not resist when one officer tried to put a handcuff on Reed’s left wrist; in fact, Reed barely moved, and the officer secured Reed’s left wrist without incident. Id. at 00:00:14–00:00:23. Reed did not respond to the officers’ commands for him to put his right hand behind his back. Id. at 00:00:23–00:00:29. Reed sat with his hands in front of him, apparently unaware of what was going on in his post-seizure state. Id. One officer asked, “Has he not been taking his meds?” Id. at 00:00:24.1 Another officer tried to grab Reed’s right wrist and pull it behind his body to handcuff him, and Reed lightly moved his arm forward. Id. at 00:00:26–0:34. When the officer again tried to pull Reed’s arm behind his back, Reed moved his arm and held it across his stomach and started to lie back down on the floor. Id. at 00:00:34–00:00:38. The left handcuff was attached to Reed’s left wrist, and the right handcuff was open. The officers told Reed to sit up, and one deputy pushed him upright so that Reed was sitting on the floor, hunched over, with his hands folded in his lap. Id. at 00:00:40. The officers did not attempt to attach the open handcuff to Reed’s right wrist when both of Reed’s hands were in front of his body. Instead, two officers grabbed Reed’s arms and attempted to pull Reed’s hands behind his back. Id. at 00:00:43–00:00:46. Reed then twisted his torso to the left, falling onto his stomach. Id. at 00:00:46–00:00:49. Much of the scene is not captured on the video, but approximately three seconds later, it appears that Reed rolled onto his back and began groaning/shouting “Ahhh! Ahh! Ahhh!” Id. at 00:00:48–00:00:52. All five officers stood over Reed, shouting various commands.
At the 52-second mark of the video, we see clearly a red light––the laser used to aim the X26 taser gun––projected onto Reed’s chest. As Reed lay on his back on
1Later, another one of the officers asks Reed twice, “Reed, have you been taking your meds?” See Video at 00:06:08–00:06:12, ECF No. 170.

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the floor of his jail cell with his hands across his chest, the officers began shouting at Reed that he was “going to get tased” and “it [was] gonna fucking hurt bad.” Id. at 00:00:52–00:01:07. Reed continued to lie on the floor without speaking or making any threatening gestures. Id. at 00:00:52–00:01:07. The officers shouted at Reed and made one unsuccessful attempt to pry Reed’s hands apart. Id. at 00:01:12–00:01:17. Again the officers did not attempt to secure the open handcuff, which they could have done by attaching it to Reed’s right hand when both of Reed’s hands were in front of his body. Within seconds, Byrd deployed the taser gun, delivering electric shocks through Reed’s body for about ten seconds. Id. at 00:01:17–00:01:27. Reed began convulsing on the floor.
After Byrd tased Reed for the first time, Reed sat still with his hands up in “surrender” position, and he begged groggily, “please, please, please.” Id. at 00:01:29–00:01:38. He appeared startled. The officers continued yelling but Reed stared blankly at them. Id. In the video, the laser of the taser gun is visible on Reed’s chest. From 00:01:40–00:01:49, the camera was blocked by various officers standing in front of the lens, so we cannot see precisely what occurred. It appears from the video that Reed kept his hands up in front of his body in “surrender” position. Byrd continued shouting at Reed, as Reed continued to beg “please, please, please,” and Byrd deployed his taser gun for a second time. Id. at 00:01:49. It appears from the video that Reed was then lying on the floor and groaning loudly. We can infer from the audio that the officers were aware that Reed was nearly unconscious because one of them told Reed to “Wake up!” Id. at 00:02:03, before asking “Do you want to get shocked again? Say no! Say no!” Id. at 00:02:08.
The deputies then handcuffed Reed behind his back. Id. at 00:02:12–00:02:27. With Reed in handcuffs, one officer commanded Reed to “roll over!” and Reed obliged. Id. at 00:02:32. All four deputies were crouched over Reed as he laid face down on the floor with his hands cuffed behind his back. Id. at 00:02:43–00:02:49. The scene is mostly obscured by officers standing in front of his

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video camera, but it appears that the officers secured Reed’s legs with leg irons. Id. at 00:03:50–00:04:08.
Even after Reed was completely restrained in handcuffs and leg irons and laying motionlessly on the cell floor, the officers continued to threaten Reed with the taser gun. Id. at 00:04:30 (“Are you gonna stand up now? Am I gonna have to tase you again?”). After the deputies pulled Reed to his feet and walked him down the hall to get medical treatment for a bleeding laceration on his forehead, Reed began to ask in a dazed voice, “What did I do? What did I do?” Id. at 00:06:20. Even after Reed was sitting calmly in the holding cell with his hands cuffed behind his back and his feet secured in leg irons, one of the deputies threatened him: “Don’t move. I don’t want to have to tase you again.” Id. at 00:07:08.
Deputies Christopher Dishong and Matthew Carter later transported Reed to the Mount Carmel Hospital West Emergency Room for further examination and treatment of the lesion on his forehead. Dishong testified that after Reed received stitches for the cut on his head, Reed was sent to a section of the general emergency room area. The deputies attached “leg irons” which connected Reed to the hospital stretcher. According to Dishong’s report, Carter left the room to go to the bathroom, and Reed squatted on the hospital bed and began to mutter under his breath. There is no video of this incident, but Dishong claims that he ordered Reed to lie back down on the bed and warned Reed that he would be tased. Reed did not comply, and allegedly “lunged” at Dishong (while Reed was still shackled to the bed); Dishong then tased him. As a result, Reed fell off the bed, struck his head on the wall and floor, and sustained another head laceration, which required stitches.
Use of an X26 taser gun causes “neuromuscular interruption,” which renders the subject unable to move and may cause him to fall. See Exhibit Declaration and Policies, ECF No. 6-1. People tased are especially at risk of injury if they are in a position where they could fall and suffer an impact injury to the head, are on an elevated or unstable surface, or are in restraints that incapacitate or immobilize them. Id.

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According to the Franklin County Sheriff’s Office policy (“the Jail Policy”), Taser guns are to be deployed “to gain control of a violent or dangerous inmate when attempts to subdue the inmate by conventional tactics have been or are likely to be ineffective or there is reasonable expectation that it will be unsafe for deputies to approach within contact range of the inmate.” See Exhibit Declaration and Policies, ECF No. 6-1. The Jail Policy permits taser deployment in the following circumstances: self-defense; protection of another inmate or staff; disarming an inmate under non-lethal conditions; preventing self-harm to an inmate; or controlling a combative inmate. Id. The Jail Policy specifically states that Tasers should not be deployed upon persons who are restrained by a mechanical device such as handcuffs, leg irons, or a restraint chair. Id.
II.
We review de novo the district court’s grant of summary judgment. Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that [Defendants are] entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323. A genuine issue of material fact exists if the evidence is such that a reasonable jury could return a verdict for Reed. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We determine simply “whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that [Defendants] must prevail as a matter of law.” Id. at 243. We must not weigh the evidence or make credibility determinations. Id. at 249; Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004). Thus, “the inquiry performed is the threshold inquiry of determining whether there is a need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250. If Reed’s account of the facts “does not require such a suspension of reality that no

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reasonable juror could accept it, that is enough to allow a jury to hear the claim.” Jones v. Garcia, 345 F. App’x 987, 990 (6th Cir. 2009). That he “may have a difficult time winning his case does not disable him from trying, at least so far as Rule 56 is concerned.” Id.; see also Kinzer v. Schuckmann, 850 F. Supp. 2d 785, 794 (S.D. Ohio 2012) (denying summary judgment on the issue of qualified immunity even where “Plaintiff’s excessive force claim . . . is thin at best”).
In reviewing the district court’s grant of summary judgment, we must adopt Reed’s version of the facts. Scott, 550 U.S. at 378 (for summary judgment “[i]n qualified immunity cases, [we usually adopt] . . . the plaintiff’s version of the facts”); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (we view the evidence and draw all inferences in the light most favorable to the nonmoving party); White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir. 2008). There is an exception to this rule when the plaintiff’s version of the facts is “blatantly contradicted by the record, so that no reasonable jury could believe it,” Id. at 380, but this exception is inapplicable to the case at hand.2
Although the video recording of the so-called “Cell Incident” accurately captures the events that transpired, it “neither proves nor disproves [Reed’s] claim” because the activity in the video is susceptible to more than one interpretation. Dixon v. County of Roscommon, 479 F. App’x 680, 682 (6th Cir. 2012). Though the majority suggests otherwise, Reed’s interpretation of the events on the video is by no means “blatantly contradicted” by the video evidence. This is especially true because much of the activity in the video occurred outside of the frame or was otherwise obscured. Unlike in Scott, where the video recording so discredited the plaintiff’s version of events that no jury could have believed it, a reasonable jury could believe Reed after viewing the video in evidence. See Coble v. City of White House,

2The majority quotes Coble for the proposition that “there is nothing in the Scott analysis that suggests that it should be restricted to cases involving videotapes.” Majority at 8 (quoting Coble v. City of White House, 634 F.3d 865, 868–69 (6th Cir. 2011) (internal quotation marks omitted). In Coble, we considered whether the exception articulated in Scott would apply to an unambiguous audio recording that blatantly contradicted the plaintiff’s version of the facts, and concluded that it would. This Court has never indicated that the holding of Scott extends beyond an unambiguous recording of the events in dispute.

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634 F.3d 865, 868–69 (6th Cir. 2011); Dixon, 479 F. App’x at 682. Therefore, we must accept Reed’s interpretation of the video for the purposes of this appeal.

In addition, we “must disregard all evidence favorable to [Defendants] that the jury is not required to believe.” Champion, 380 F.3d at 900 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000)). In other words, “the court should give credence to the evidence favoring [Reed] as well as that evidence supporting [Defendants] that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.” Reeves, 530 U.S. at 151. The district court should be affirmed “only if reasonable minds could not come to a conclusion other than one favoring [Defendants].” Id. (quoting Garrison v. Cassens Transp. Co, 334 F.3d 528, 537–38 (6th Cir. 2003).

Because I view the incidents of January 29, 2009 as a single event––a seizure followed by three tasings (two in the jail cell and one in the hospital)––I believe that Reed’s entire claim should proceed to a trier of fact. That there is no video recording of the so-called “Hospital Incident” is not dispositive where the essential facts are undisputed: Shortly after Reed had suffered a seizure and received medical treatment for a head laceration, Dishong deployed his taser gun on Reed while Reed was shackled to a hospital bed with leg irons. The trier of the facts is entitled to look at the event in context, and may determine that Dishong’s deposition testimony that Reed “lunged” at him is not credible.

III.

1.

Individual Capacity Claims

Constitutional Violation

I agree with the majority and the district court that Reed is entitled to constitutional protection under the Fourteenth Amendment. The test applied by the Supreme Court to determine whether governmental conduct violates an individual’s substantive due process rights is whether the alleged conduct “shocks the conscience.” Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (citing

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County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998)).3 As the majority recognizes, we apply different standards of “conscience-shocking” depending on the circumstances in which the governmental action occurred. See Darrah v. City of Oak Park, 255 F.3d 301, 306 (citing Lewis, 523 U.S. at 850–51). Where, as here, implicated government actors “are afforded a reasonable opportunity to deliberate various alternatives prior to electing a course of action . . ., their actions will be deemed conscience-shocking if they were taken with ‘deliberate indifference’ towards the plaintiff's federally protected rights.” Claybrook, 199 F.3d at 359 (quoting Lewis, 523 U.S. at 852–53).4 I agree with the majority that “[t]he video recording in this case provides sufficient evidence for a jury to find that the situation in the cell afforded the deputies a reasonable opportunity” for deliberation. Majority at 11.
I therefore note that the district court applied an incorrect legal standard. The district court erroneously stated that “the defendant officers’ conduct violates []Reed’s constitutional rights only if they tased him maliciously and sadistically for the very purpose of causing harm rather than in a good faith effort to maintain or restore a safe environment.” Reed need not show that the deputies acted for the very purpose of causing him harm; only “in a rapidly evolving, fluid, and dangerous predicament” would Reed need to show that the officers had such nefarious intent. The law requires only that Reed cite evidence to support his allegation that the officers were deliberately indifferent to his right to be free from excessive force. To satisfy this low burden, Reed points to the video recording of five officers brutally tasing him for failing to comply with their rapid-fire commands a mere moment after he had suffered from a massive seizure. Reed has undoubtedly met his burden.

3The Supreme Court has also recognized that conduct that meets the deliberate indifference standard of the Eighth Amendment would violate the Fourteenth Amendment, since the protections afforded under the Fourteenth Amendment are at least as great as those under the Eighth Amendment. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (citing Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979)); see also Lewis, 523 U.S. at 850.
4This Court has also recognized that the Fourteenth Amendment, “[a]t the very least. . . protects a[n individual] from the use of excessive force that amounts to punishment,’” Lanman v. Hinson, 529 F.3d 673, 680 (6th Cir. 2008) (quoting Phelps v. Coy, 286 F.3d 295, 300 (6th Cir. 2002)).

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Furthermore, I disagree with the majority’s assertion that “there can be no dispute” that the so-called “Hospital Incident” was a “rapidly evolving, fluid, and dangerous predicament which precludes the luxury of calm and reflective preresponse deliberation.” Majority at 16. The Supreme Court has applied a heightened standard in limited circumstances: namely a prison riot and a sudden high-speed automobile chase. See Whitley v. Albers, 475 U.S. 312 (1986) (prison riot is a rapidly evolving, fluid, and dangerous predicament); Lewis, 523 U.S. 833 (1998) (high-speed automobile chase is a rapidly evolving, fluid, and dangerous predicament). Even under the facts alleged in Dishong’s deposition, we can hardly say that the situation was a “rapidly evolving, fluid, and dangerous predicament” on the same level as a prison riot or high-speed chase. When Reed squatted on the hospital bed and began to mutter, he was shackled to the hospital bed with leg irons; Dishong had time to deliberate his course of action. Even if Reed did appear to “lunge” at Dishong, the situation presented limited danger, if any, to anyone other than Reed since Reed was physically restrained by the leg irons.
In concluding that Defendants did not violate Reed’s constitutional rights, the majority impermissibly relies on its own subjective interpretation of the video as well as Defendants’ one-sided account of the facts. This analysis is improper on summary judgment. In light of all of the evidence, including the video, a reasonable jury could undoubtedly find that the officers’ use of force shocks the conscience because it was taken with deliberate indifference toward Reed’s federally protected rights.
In applying the Fourteenth Amendment standard to the use of tasers, “courts have focused on [the individual’s] conduct when the taser was applied, the frequency and force with which it was applied, and the overall security needs of the institution.” Spears v. Cooper, No. 1:07-CV-58, 2009 WL 838179 (E.D. Tenn. Mar. 30, 2009) rev’d in part sub nom. Spears v. Ruth, 589 F.3d 249 (6th Cir. 2009). With regard to the first factor, the evidence supports Reed’s allegation that Reed was not actively resisting the officers’ efforts to restrain him. Though Reed did not comply with the

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officers’ rapid-fire orders commanding him to put his hands behind his back, Reed’s noncompliance alone is insufficient to justify the officers’ use of force. See Harris v. City of Circleville, 583 F.3d 356, 361 (6th Cir. 2009) (holding that an arrestee who did not comply with officer’s command to “kneel down” was not resisting); Eldridge v. City of Warren, 533 F. App’x 529, 533 (6th Cir. 2013) (holding that a person who remained in his vehicle despite officers’ repeated commands for him to exit the vehicle was not actively resisting, and officers’ use of a Taser gun to subdue the person was “objectively unreasonable” and violated the Fourth Amendment). This Court has recognized an important distinction between noncompliance and “active resistance.” Id. at 535 (“noncompliance alone does not indicate active resistance; there must be something more”); Harris, 583 F.3d at 361 (“Other than not complying . . . [plaintiff] was not doing anything to resist. [Plaintiff] does not appear to be resisting on the videotape.”).5 Based on the evidence presented, a reasonable jury could conclude that Reed was merely noncompliant, and was not actively resisting. Since the video supports both parties’ proffered interpretations of Reed’s behavior, there is a genuine issue of fact regarding whether or not Reed was resisting. We must resolve this factual dispute in Reed’s favor for the purposes of our analysis of the issue on appeal.
The evidence also supports Reed’s allegation that Reed did not pose a substantial risk to the safety of himself, the officers, or third parties. The majority claims that Reed has not offered any evidence to contradict Defendants’ testimony that the open handcuff presented a substantial safety risk; I disagree. The majority fails to consider that the video itself casts doubt on Defendants’ testimony, since it is clear in the video that the officers had ample opportunity to secure the open handcuff on Reed’s right hand in front of Reed’s body, and they did not do so. It was foreseeable that an individual in Reed’s disoriented state might reflexively pull his arms forward when an officer attempts to pull them behind his back, yet the officers
5Eldridge is not the only case in this Circuit to recognize a distinction between active resistance and noncompliance. Though the majority may believe that Reed’s case “is not a reprise of Harris v. City of Circleville,” Majority at 15, it cannot deny that Harris recognizes a distinction between resistance and noncompliance.

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nevertheless decided to handcuff Reed’s left wrist while Reed’s hands rested in front of his body and then tried to pull Reed’s hands behind his back.6 If a loose handcuff presented such a threat to the officers’ safety, then the officers would have first positioned both of Reed’s hands behind his body before handcuffing one of Reed’s wrists. Alternatively, the officers could have waited until Reed “came to” before trying to handcuff him at all. Or, under the circumstances (having not done either of the above), the officers could have simply secured the loose handcuff by attaching the open handcuff to Reed’s right wrist in front of Reed’s body (which would have neutralized the purported safety risk). I raise these possible alternatives not because I believe that the deputies were constitutionally required to exhaust all possible alternatives before using a taser, but because the fact that the deputies passed up these opportunities casts doubt on the credibility of the officers’ professed belief that the open handcuff posed any substantial threat to their safety. While Reed could certainly benefit from expert testimony purporting to refute the testimony submitted by Defendants, such testimony is not required for Reed to survive a motion for summary judgment where a reasonable interpretation of the video contradicts Defendants’ testimony. There is a genuine issue of material fact as to whether or not the open handcuff presented a substantial risk to the officers’ safety, and we must resolve this factual dispute in Reed’s favor for the purposes of our analysis of the issue on appeal.
The majority asserts that certain “facts” compel its conclusion that none of the deputies acted with deliberate indifference: namely, that the officers tried to handcuff Reed “several times” before using the taser and that the officers warned Reed that the taser would hurt. While I agree that these facts could support a jury’s decision that the officers’ conduct did not rise to the level of a constitutional
6The majority mischaracterizes the argument of the dissent. See Majority at 13. The dissent does not suggest that the fact that Reed’s movement was unintentional automatically renders the officers’ conduct conscious-shocking. To the contrary, I agree with the majority that the constitutional inquiry centers on the deputies’ intent, and not Reed’s intent. However, for the reasons I have explained above, the fact that Reed’s movement was reflexive and foreseeable is relevant to our inquiry regarding the deputies’ intent. I question the deputies’ intent—and the integrity of their belief that the open handcuff was “a major danger” that could have been used as a deadly weapon—where the video clearly shows that the officers passed up several opportunities to prevent, or at least neutralize, the “dangerous situation” presented by an open handcuff.

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violation, I strongly disagree that these facts compel such a conclusion. On the contrary, the video offers considerable support for the conclusion that the officers acted with deliberate indifference to Reed’s federally protected rights (or, alternatively, that the officers used excessive force that amounted to punishment). Specifically, the record shows that the officers were fully aware that Reed had just suffered from a serious seizure, and they were supposed to help him to get medical assistance; yet, within fifty-two seconds of entering the cell, Byrd was already preparing to use his taser gun on Reed. Although Reed was clearly dazed and discombobulated, the officers did not make any genuine effort to help Reed snap back to alertness or wait until Reed was responsive before trying to handcuff him. Instead, not much more than one minute after Reed suffered a seizure, Byrd brutally subdued Reed with a taser gun. The video shows the officers treating Reed more like a dog than a human––commanding him to “sit up” and “roll over,” and punishing him at the first sign of non-obedience. Had Reed been in the hospital instead of a jail cell, there is no question that the officers’ behavior would be considered consciousshocking.
I also disagree with the majority’s suggestion that “wait[ing] until Reed had fully recovered from the lingering effects of the seizure before taking him to the hospital for medical treatment” would have placed the officers “in an impossible Catch-22 situation: wait too long and risk being accused of the ‘unnecessary and wanton infliction of pain’ by their deliberate indifference to Reed’s serious medical needs, or act too quickly and risk being charged with ‘deliberate indifference toward the plaintiff’s federally protected rights.’” Majority at 15–16. This alleged Catch-22 is a false dichotomy. There is a wide range of constitutionally acceptable behavior that neither involves excessive force nor unnecessary delay of access to medical treatment. The officers certainly could have waited more than fourteen seconds before approaching Reed to try to handcuff him while Reed was clearly discombobulated. Or they could have handcuffed Reed in front of his body, since it is foreseeable that an individual in Reed’s disoriented state might reflexively pull his arms forward when an officer attempts to pull them behind his back. Instead, the

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officers shouted rapid-fire commands at a virtually catatonic, non-threatening individual for twelve seconds before they approached him and tried to “wrestle” him into handcuffs, and prepared to shock him multiple times with a taser gun less than forty seconds later.
The majority emphasizes the number of times that the officers shouted commands and warnings, but their narration obscures the fact that this entire scene took place in a span of less than eighty seconds. For the first thirty seconds, Reed stared blankly into space while the officers shouted. Reed made no movement at all. Reed did not resist (arguably he did not even notice) when the officers placed a handcuff on his left wrist while both of his hands were in front of his body, and Reed only began to pull forward when the officers tried to pull Reed’s right arm behind his back.
The record viewed in the light most favorable to Reed establishes that each of the officers knew that Reed had just suffered from a seizure, that Reed was not actively resisting, that Reed did not pose a threat to the officers, and that Reed was tased three times (twice in the cell, and once in the hospital). The record also supports the inference that Reed was not “violent or dangerous,” and that the officers’ use of the taser violated the Jail Policy. Although Reed has not offered expert testimony to refute Defendants’ testimony that the open handcuff presented a substantial threat to the officers’ safety, Reed can rely on the video to refute this notion, since the video clearly shows that the officers had ample opportunity to secure the open handcuff by cuffing Reed’s right wrist in front of his body, and they did not do so.
With regard to Dishong’s use of the taser, even if we accept as true Dishong’s testimony that Reed “lunged” at Dishong, the evidence viewed in the light most favorable to Reed shows that Reed was shackled to a hospital bed in the aftermath of a seizure and medical operation, and did not pose a substantial risk to Dishong. The evidence also supports the inference that Dishong’s use of the taser violated the Jail Policy, which specifically states that tasers should not be deployed

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upon persons who are restrained by leg irons. Moreover, Dishong was aware that Reed was especially at risk of injury, since Reed was on an elevated, unstable surface (the hospital bed), in a position where he could fall and suffer an impact injury to the head (crouching), and was in restraints that immobilized him (leg irons).
A jury could reasonably conclude that the officers’ use of a taser gun on a non-threatening, mentally ill individual in the immediate aftermath of a seizure shocks the conscience because it was taken with deliberate indifference toward Reed’s right to be free from excessive force. At the very least, the evidence presented raises an issue of material fact as to whether the officers’ behavior shocks the conscience, and summary judgment on the issue of qualified immunity was therefore improper.
Clearly Established Right
Each of the officers should have known that his behavior violated Reed’s constitutional rights. It is well established that the Due Process Clause of the Fourteenth Amendment protects individuals from abusive government conduct that “shocks the conscience,” Lewis, 523 U.S. at 834, and from excessive force that amounts to punishment, see Leary v. Livingston County, 528 F.3d 438, 443 (6th Cir. 2008) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)), or “unnecessary and wanton infliction of pain,” Whitley, 475 U.S. at 320–21.
In the context of the Fourth Amendment, we have previously recognized that “[o]fficers should [know] that the gratuitous or excessive use of a taser violate[s] a clearly established constitutional right.” Landis v. Baker, 297 F. App’x 453 (6th Cir. 2008) (citing Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993) (“a stun gun inflicts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless” and its use without a legitimate reason might violate the Eighth Amendment)). In applying the Fourteenth Amendment standard specifically to the use of tasers, “courts have focused on detainees’ conduct when the taser was applied, the frequency and force with which it was applied, and the overall security needs of the institution.” Spears, 2009 WL 838179.

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In the case at hand, the evidence viewed in the light most favorable to Reed establishes that Reed was not actively resisting, that Reed did not pose a threat to the officers, and that Reed was tased two times in his jail cell. Each of the officers present in the cell was aware that Reed had a serious medical condition, and that he had just suffered from a seizure. Nevertheless, within eighty seconds of entering Reed’s cell in order to transport him to the hospital, Byrd decided to deploy his X26 taser gun, causing “neuromuscular interruption” and a great shock for the disoriented victim. Byrd did so in spite of the fact that the Jail Policy instructed officers to deploy taser guns only for self-defense, protection of another inmate or staff, disarming an inmate under non-lethal conditions, preventing self-harm to an inmate, or controlling a combative inmate. The evidence, including the video, viewed in the light most favorable to Reed, establishes that Reed was not threatening, combative, or armed. Under these circumstances, a reasonable officer should have known that use of the taser would violate Reed’s due process rights.
Similarly, even if we accept as true Dishong’s testimony that Reed “lunged” at him, the evidence viewed in the light most favorable to Reed supports the conclusion that Dishong’s decision to use the taser under the circumstances was made with deliberate indifference to Reed’s constitutionally protected rights.
In the instant case, Reed’s clearly established constitutional right is the right to be free from excessive force that “shocks the conscience.” In light of this right, it was objectively unreasonable for the officers to tase Reed repeatedly when he needed medical attention and was not actively resisting. Reed has submitted evidence in the form of deposition testimony and a video recording of part of the incident. After reviewing this evidence, I believe that it is sufficient to support Reed’s claim that Defendants’ actions were objectively unreasonable in light of clearly established law.
Additionally, “the fact that only [Byrd and Dishong] pulled the trigger on the taser does not absolve [the other officers] of liability.” Landis, 297 F. App’x at 464 (citing Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982) (“it is not necessary, in order to hold a police officer liable under [§]1983, to demonstrate that the officer

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actively participated in [using force against] a plaintiff”). There is evidence that the other officers encouraged the use of the taser and made no attempt to thwart the use of the taser on Reed. A reasonable jury could conclude that the other officers “had the means and opportunity to prevent the harm” to Reed, and that their failure to do so was conscience-shocking.

2.

Remaining Claims

The district court dismissed Reed’s remaining claims––Reed’s claims against the officers in their official capacities as well as his claims against Franklin County, which rely on Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978)––based on its conclusion that Reed did not suffer a violation of his Fourteenth Amendment rights. For the reasons discussed supra, I believe that Reed has stated a constitutional violation, and so dismissal of these claims on this ground was erroneous.

IV.

For the foregoing reasons, I disagree with the majority, and would reverse the order of the district court and remand the case for further proceedings consistent with this opinion.

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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 13-3119
ROBERT SHREVE et al., Plaintiffs,
MICHAEL REED, Individually, Plaintiff - Appellant,

FILED
Feb 06, 2014
DEBORAH S. HUNT, Clerk

v.

FRANKLIN COUNTY, OHIO et al., Defendants-Appellees.

Before: BOGGS, CLAY, and GILMAN, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court for the Southern District of Ohio at Columbus.

THIS CAUSE was heard on the record from the district court and was submitted on the briefs without oral argument.

IN CONSIDERATION WHEREOF, it is ORDERED that the judgment of the district court is AFFIRMED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
 Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 1 of 30
CLOSED,JURY,MEDIATION
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:10−cv−00644−EAS−MRA

Shreve et al v. Franklin County Ohio et al Assigned to: Judge Edmund A Sargus Referred to: Magistrate Judge Mark R. Abel Case in other court: 6th Circuit, 13−03119 Cause: 42:1983 Civil Rights Act Plaintiff Robert Shreve Individually and on behalf of all others similarly situated
Plaintiff Michael Reed Individually

Date Filed: 07/16/2010 Date Terminated: 02/06/2013 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Jane Pat Perry 46 Northmoor Place Columbus, OH 43214 614−261−1711 Email: perdav@columbus.rr.com TERMINATED: 01/30/2012 LEAD ATTORNEY
Kristen Henry Disability Rights Ohio 50 W. Broad Street Suite 1400 Columbus, OH 43215 614−466−7264, Ext 112 Fax: 614−644−1888 Email: khenry@disabilityrightsohio.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kerstin Sjoberg−Witt Disability Rights Ohio 50 West Broad Street, Suite 1400 Columbus, OH 43215 614−466−7264, Ext 114 Fax: 614−644−1888 Email: ksjoberg−witt@disabilityrightsohio.org ATTORNEY TO BE NOTICED
represented by Jane Pat Perry (See above for address) TERMINATED: 01/30/2012 LEAD ATTORNEY
Mohammed Noure Alo SUSPENDED − SEE 1:14−MC−038 4449 Easton Way Suite 200 Columbus, OH 43219 614−929−0953 Email: alolaw100@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kerstin Sjoberg−Witt (See above for address) TERMINATED: 05/17/2012
Kristen Henry (See above for address)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 2 of 30

TERMINATED: 05/17/2012

Plaintiff
Dawn Fiore−Bruno Individually

represented by Jane Pat Perry (See above for address) TERMINATED: 01/30/2012 LEAD ATTORNEY

Kristen Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kerstin Sjoberg−Witt (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Michael Worley individually and on behalf of all others similarly situated

represented by Jane Pat Perry (See above for address) TERMINATED: 01/30/2012 LEAD ATTORNEY

Kerstin Sjoberg−Witt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kristen Henry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff United States of America

represented by John J. Stark US Attorney Office 303 Marconi Boulevard Suite 200 Columbus, OH 43215 614−469−5715 Email: john.stark@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Aaron S Fleisher U.S. Department of Justice 950 Pennsylvania Ave, NW Washington, DC 20530 202−307−6457 Fax: 202−514−6903 Email: aaron.fleisher@usdoj.gov ATTORNEY TO BE NOTICED
Anika Gzifa US Department of Justice 950 Pennsylvania Ave, NW Room 5504 − PHB Washington, DC 20530 202−305−3216 Fax: 202−514−0212

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 3 of 30
Email: anika.gzifa@usdoj.gov ATTORNEY TO BE NOTICED
Kerry Kreutler Dean U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Ave, NW PHB 5026 Washington, DC 20530 202−514−1841 Fax: 202−514−0212 Email: kerry.k.dean@usdoj.gov ATTORNEY TO BE NOTICED
Mark Thomas D'Alessandro United States Attorney's Office − 2 303 Marconi Boulevard 2nd Floor Columbus, OH 43215 614−469−5715 Email: mark.dalessandro@usdoj.gov TERMINATED: 11/10/2010
Marlysha Myrthil US Dept. of Justice 950 Pennsylvania Ave, NW Washington, DC 20530 202−305−3454 Fax: 202−514−4883 Email: marlysha.myrthil@usdoj.gov ATTORNEY TO BE NOTICED
Michelle Leung U.S. Department of Justice, Civil Rights Division 601 D. Street NW PHB #5214 Washington, DC 20004 202−305−3773 Fax: 202−514−0212 Email: michelle.leung@usdoj.gov ATTORNEY TO BE NOTICED
Samantha Kay Trepel U.S. Department of Justice, Civil Rights Division 950 Pennsylvania Ave, NW PHB #5516 Washington, DC 20530 202−514−6255 Fax: 202−514−4883 Email: samantha.trepel@usdoj.gov ATTORNEY TO BE NOTICED
Sergio Perez US Dept. of Justice 601 D. Street NW Washington, DC 20530 202−305−3655 Fax: 202−514−6273 Email: sergio.perez@usdoj.gov ATTORNEY TO BE NOTICED
Tammie Monique Gregg U S Department of Justice

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 4 of 30
Patrick Henry Building 601 D Street NW Washington, DC 20005 202−616−2009 Fax: 202−514−6903 Email: tammie.gregg@usdoj.gov ATTORNEY TO BE NOTICED

V. Defendant Franklin County Ohio

represented by Nick A Soulas , Jr Franklin County Prosecutor's Office 373 S High Street 13th Floor Columbus, OH 43215 614−462−3520 Fax: 614−462−6012 Email: nasoulas@franklincountyohio.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy David Smith Thompson Hine LLP Austin Landing I 10050 Innovation Drive, Suite 400 P.O. Box 8801 Dayton, OH 45401 937−443−6845 Fax: 937−443−6635 Email: jeremy.smith@thompsonhine.com ATTORNEY TO BE NOTICED
Mary Jane Martin Franklin County Prosecutor's Office − 2 373 S High Street 13th Floor Columbus, OH 43215 614−525−3520 Fax: 614−525−6012 Email: mjmartin@franklincountyohio.gov ATTORNEY TO BE NOTICED
Michael Brave TASER International, Inc. 34522 N. Scottsdale Rd Suite D−7−600 Scottsdale, AZ 85266 651−248−2809 Fax: 480−275−3291 Email: brave@laaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald Joseph O'Brien Franklin County Prosecutor's Office − 2 373 South High Street 13th Floor Columbus, OH 43215 614−525−3555 Fax: 614−525−6103 Email: rjobrien@franklincountyohio.gov ATTORNEY TO BE NOTICED

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 5 of 30

Defendant Sheriff Franklin County In his official capacity TERMINATED: 08/18/2011
Defendant Mark Barrett Individually and in his official capacity (Franklin County Sheriff's Office Chief Deputy, Corrections)
Defendant Stephan L Martin Individually and in his official capacity (Franklin County Sheriff's Office Chief Deputy, Investigations) TERMINATED: 08/18/2011
Defendant John/Jane Doe(s) Individually and in their official capacities (Franklin County Deputies of the Internal Affairs Bureau who Reviewed and Investigated Use of Force Reports Involving Deployment of Tasers at FCCC I and FCCC II from July 16, 2008 to Present) Defendant

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED
Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED
Michael Brave (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ronald Joseph O'Brien (See above for address) ATTORNEY TO BE NOTICED
represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED
Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED
represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED
Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED
represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 6 of 30

John/Jane Roe(s) Individually and in their official capacities (Facility Commander(s) Franklin County Corrections Center I (FCCC I) from July 16, 2008 to Present)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Michael Herrell Individually and in his official capacity (Major, Former Facility Commander, Franklin County Corrections Center II (FCCC II))

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Doug Edgington Individually and in his official capacity (Major, Present Facility Commander, Franklin County Corrections Center II)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
James Dishong Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Samuel Byrd Individually and in his official capacity (Cpl., Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 7 of 30

Defendant
Chris Leonard Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
James Jodrey Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sam Montrose Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Clayton Kern Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Christopher Starner Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 8 of 30

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Shannon Beaudry Individually and in her official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Steven Dean Individually and in his official capacity (Sgt., Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Elizabeth Klein Individually and in her official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Derek Shively Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 9 of 30

ATTORNEY TO BE NOTICED

Defendant
Jason Brobst Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lee Vandette Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Debra Cantrell Individually and in her official capacity (Cpl., Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Jonathan Roush Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Nicholas Williams Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 10 of 30

ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Nathan Coleman Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Andrew Giles Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Mark Eagan Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Manley Morgan Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 11 of 30

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Douglas Robinson Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Christopher Lee Individually and in his official capacity (Franklin County Sheriff's Deputy)

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Daniel Waldren individually and in his official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Joshua Crosby individually and in his official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant

represented by

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 12 of 30

Nicholas Lapetina individually and in his official capacity

Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Christopher Leonard individually and in his official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Curtis Winn individually and in his official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Ben Damschroder individually and in his official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lt. Robert Forino individually and in his official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 13 of 30

(See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Lt. Stephanie Klumpp individually and in her official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Major Geoffrey Stobart individually and in his official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Sgt. Charles Williamson individually and in his official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Amy Hanes individually and in her official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Liz Mehl individually

represented by Adam W. Martin Sutter O'Connell & Farchione

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 14 of 30

3600 Erieview Tower 1301 East 9th Street Cleveland, OH 44114 216−928−2200 Email: amartin@sutter−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John V Jackson , II Sutter O'Connell & Farchione Co, LPA 3600 Erieview Tower 1301 E 9th Street Cleveland, OH 44114 216−928−2200 Fax: 216−928−3660 Email: jjackson@sutter−law.com ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Stephan L. Martin In His Individual Capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Marty Buechner In His Official Capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address) ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Defendant
Zach Scott Sheriff Franklin County, Ohio, in his official capacity

represented by Nick A Soulas , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeremy David Smith (See above for address)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 15 of 30

ATTORNEY TO BE NOTICED

Mary Jane Martin (See above for address) ATTORNEY TO BE NOTICED

Michael Brave (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Ronald Joseph O'Brien (See above for address) ATTORNEY TO BE NOTICED

Amicus
Fraternal Order of Police, Capital City Lodge No. 9

represented by Christina Louise Corl Plunkett Cooney 300 E. Broad Street Suite 590 Columbus, OH 43215 614−629−3018 Fax: 614−629−3019 Email: ccorl@plunkettcooney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Larry Holliday James Crabbe Brown & James − 2 500 S Front Street Suite 1200 Columbus, OH 43215 614−228−5511 Email: ljames@cbjlawyers.com ATTORNEY TO BE NOTICED

Russell Earl Carnahan Hunter Carnahan Shoub Byard & Harshman 3360 Tremont Road Second Floor Columbus, OH 43221 614−442−5626 Fax: 614−442−5625 Email: rcarnahan@hcands.com ATTORNEY TO BE NOTICED

Date Filed 07/16/2010
07/16/2010 07/20/2010

# Docket Text
1 COMPLAINT with JURY DEMAND for Individual Damages and Class Action Complaint for Declaratory and Injunctive Relief against All Defendants ( Filing fee $ 350 paid − receipt number: 0648−2702674), filed by Michael Reed, Robert Shreve, Dawn Fiore−Bruno. (Attachments: # 1 Civil Cover Sheet) (Perry, Jane) (Entered: 07/16/2010)
2 Emergency MOTION for Leave to File Motion for Class Certification and Appointment of Class Counsel by Plaintiff Robert Shreve. (Attachments: # 1 Exhibit Motion for Class Certification and Appointment of Class Counsel, # 2 Exhibit Declaration of Robert Shreve) (Perry, Jane) (Entered: 07/16/2010)
3 ORDER granting 2 Plaintiff's Motion for Leave to File Motion for Class Certification. Signed by Judge Edmund A Sargus on 07/20/2010. (dh) (Entered: 07/20/2010)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 16 of 30

07/20/2010 07/22/2010 07/23/2010 07/26/2010 07/27/2010 07/28/2010 08/03/2010
08/17/2010 08/17/2010 08/23/2010 08/23/2010
08/24/2010 08/27/2010
08/31/2010 08/31/2010 09/01/2010
09/03/2010 09/07/2010

4 MOTION to Appoint Counsel for the Class, MOTION to Certify Class ( Responses due by 8/13/2010) by Plaintiff Robert Shreve. (Perry, Jane) (Entered: 07/20/2010)
5 MOTION for Protective Order Allowing Video Tape Evidence in this Case to be Filed Under Seal by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve. (Perry, Jane) (Entered: 07/22/2010)
6 MOTION for Preliminary Injunction of Plaintiff and Proposed Class by Plaintiff Robert Shreve. (Attachments: # 1 Exhibit Declaration and Policies, # 2 Exhibit Declaration and Report of Plaintiffs' Expert) (Perry, Jane) (Entered: 07/23/2010)
7 NOTICE of TELEPHONE Status Conference set for Tuesday, 8/3/2010, 10:00 AM before Judge Edmund A Sargus. (aq1) (Entered: 07/26/2010)
8 NOTICE of Appearance by Nick A Soulas, Jr for Defendant Franklin County Ohio (Soulas, Nick) (Entered: 07/27/2010)
9 ORDER granting 5 Motion for Protective Order. Plaintiffs shall have leave to file video evidence of tasing incidents under seal. Signed by Magistrate Judge Mark R. Abel on 7/28/10. (rew) (Entered: 07/28/2010)
10 ORDER setting a hearing on Plaintiffs' Motion for Preliminary Injunction 6 for 11/08/2010 at 10:00 a.m. A telephone status conference is set on this matter for 08/17/2010 at 10:00 a.m.. Signed by Judge Edmund A Sargus on 08/03/2010. (dh) (Entered: 08/03/2010)
Telephone Conference held before Judge Edmund A Sargus on 8/17/2010, 10:00 A.M. (Court Reporter Laura Samuels.) (aq1) (Entered: 08/17/2010)
12 ORDER: Parties to brief issue whether Expert be allowed access to county jail; Telephone Conference set for Tuesday, 9/21/2010, 11:45 AM. Signed by Judge Edmund A Sargus on 8/17/10. (aq1) (Entered: 08/17/2010)
13 NOTICE of bankruptcy filing and operation of the automatic stay by Defendant Steven Dean. (rew) (Entered: 08/24/2010)
NOTICE OF BANKRUPTCY Upon the Record and Operation of Automatic Stay as to Steven Dean by Defendant Steven Dean. SEE DOCKET # 13 FOR DOCUMENT. This entry is being filed to utilize the correct CM/ECF filing event. (kk2) (Entered: 08/25/2010)
14 MOTION to Compel Inspection by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve. (Attachments: # 1 Exhibit Declaration in Support of Motion to Compel Inspection) (Perry, Jane) (Entered: 08/24/2010)
15 AMENDED COMPLAINT for Individual Damages and First Amended Class Action Complaint for Declaratory and Injunctive Relief against All Defendants, filed by Michael Reed, Robert Shreve, Dawn Fiore−Bruno, Michael Worley. (Perry, Jane) (Main Document uploaded again on 8/27/2010 to correct issue with PDF header) (jcw). (Entered: 08/27/2010)
16 NOTICE of Appearance by Mary Jane Martin for Defendant Sheriff Franklin County (Martin, Mary) (Entered: 08/31/2010)
17 First MOTION for Extension of Time New date requested 9/7/2010. by Defendant Sheriff Franklin County. (Martin, Mary) (Entered: 08/31/2010)
18 ORDER granting 17 Defendants' Motion for Extension of Time. Defendant shall have until 7/7/10 to file a memorandum in opposition to [4} Plaintiff's Motion to Certify Class and Appoint Class Counsel. Plaintiff may file a reply to response within 11 days of service. Signed by Judge Edmund A Sargus on 09/01/2010. (dh) (Entered: 09/01/2010)
19 NOTICE of Hearing: Preliminary Pretrial Conference set for 9/30/2010 @ 11:30 AM before Magistrate Judge Mark R. Abel. Conf of the parties due 9/16/10; Rule 26f report of the parties due 9/23/10. (sh1) (Entered: 09/03/2010)
20 RESPONSE in Opposition re 4 MOTION to Appoint Counsel for the Class MOTION to Certify Class filed by Defendant Sheriff Franklin County. (Attachments: # 1 Affidavit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 17 of 30

09/16/2010 09/20/2010
09/20/2010 09/21/2010 09/22/2010 09/22/2010 09/23/2010 09/23/2010
09/23/2010 09/30/2010 09/30/2010 09/30/2010 10/01/2010
10/01/2010 10/05/2010

(Martin, Mary) (Entered: 09/07/2010)
21 MOTION for Extension of Time to File Response/Reply as to 6 MOTION for Preliminary Injunction of Plaintiff and Proposed Class by Defendant Sheriff Franklin County. New date requested 9/21/2010. (Soulas, Nick) (Entered: 09/16/2010)
22 ORDER granting 21 Defendants' Motion for Extension of Time. Defendants have until 9/21/2010 to file a memorandum in opposition to 6 Plaintiff and Proposed Class's Motion for Preliminary Injunction. Plaintiff and Proposed Class may file a reply within 20 days of the service of Defendants' memorandum in oppostion. Signed by Judge Edmund A Sargus on 09/20/2010. (dh) (Entered: 09/20/2010)
23 REPLY to Response to Motion re 4 MOTION to Appoint Counsel for the Class MOTION to Certify Class filed by Plaintiffs Robert Shreve, Michael Worley. (Perry, Jane) (Entered: 09/20/2010)
24 RESPONSE in Opposition re 6 MOTION for Preliminary Injunction of Plaintiff and Proposed Class filed by Defendant Sheriff Franklin County. (Attachments: # 1 Affidavit Charles A. Williamson, # 2 Exhibit IAR# 09−309) (Soulas, Nick) (Entered: 09/21/2010)
25 NOTICE OF MANUAL FILING OF VIDEO as exhibit B of 24 Response in Opposition to Motion, filed by Defendant Sheriff Franklin County. (jcw) (Entered: 09/22/2010)
26 SEALED EXHIBIT B of 24 manually filed at the Clerk's office. (jcw) (Entered: 09/22/2010)
27 ORDER: Defendants have until 09/24/2010 to respond to 14 Plaintiffs' Motion to Compel Inspection. Defendants shall submit report of their expert to Plaintiffs by 10/25/2010. Signed by Judge Edmund A Sargus on 09/23/2010. (dh) (Entered: 09/23/2010)
28 RULE 26(f) REPORT of Parties by Defendants Mark Barrett, Shannon Beaudry, Jason Brobst, Samuel Byrd, Debra Cantrell, Nathan Coleman, Joshua Crosby, Ben Damschroder, Steven Dean, James Dishong, John/Jane Doe(s), Mark Eagan, Doug Edgington, Franklin County Ohio, Andrew Giles, Michael Herrell, James Jodrey, Clayton Kern, Elizabeth Klein, Nicholas Lapetina, Christopher Lee, Chris Leonard, Christopher Leonard, Stephan L Martin, Sam Montrose, Manley Morgan, Douglas Robinson, John/Jane Roe(s), Jonathan Roush, Sheriff Franklin County, Derek Shively, Christopher Starner, Lee Vandette, Daniel Waldren, Nicholas Williams, Curtis Winn, Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve, Michael Worley. (Perry, Jane) (Entered: 09/23/2010)
29 NOTICE: Settlement Conference set for 10/6/2010 @ 9:30am in chambers before Magistrate Judge Terence P Kemp − (wh1) (Entered: 09/23/2010)
30 WAIVER OF SERVICE Returned Executed. Waiver sent to Franklin County Ohio on 7/29/2010, answer due 9/27/2010; Sheriff Franklin County on 7/29/2010, answer due 9/27/2010. (Perry, Jane) (Entered: 09/30/2010)
Minute Entry for proceedings held before Magistrate Judge Mark R. Abel: Initial Pretrial Conference held on 9/30/2010. (Rubey, Rachel) (Entered: 09/30/2010)
31 ANSWER to 15 Amended Complaint, filed by Franklin County Ohio, Sheriff Franklin County. (Soulas, Nick) (Entered: 09/30/2010)
32 PRELIMINARY PRETRIAL ORDER: Rule 26(a)(1) Disclosures due by 10/12/2010. Primary Expert due by 10/25/2010. Counsel are DIRECTED to call chambers no later than 14 days after a decision on plaintiffs' motion for a preliminary injunction to set up a scheduling conference. Signed by Magistrate Judge Mark R. Abel on 10/01/10. (rew) Modified text on 10/1/2010 (rew1). (Entered: 10/01/2010)
Set/Reset Columbus PPTO Deadlines : Primary Expert due by 10/25/2010. (rew) (Entered: 10/01/2010)
33 NOTICE: Settlement Conference RESET for 10/13/2010 @ 9:30am in chambers before Magistrate Judge Terence P Kemp − (wh1) (Entered: 10/05/2010)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 18 of 30

10/13/2010 10/14/2010 10/15/2010
10/26/2010 10/26/2010 10/26/2010 10/29/2010 10/29/2010 10/29/2010

Settlement Conference held on 10/13/2010 before Magistrate Judge Terence P. Kemp. (jv) (Entered: 10/13/2010)
34 REPLY to Response to Motion re 6 MOTION for Preliminary Injunction of Plaintiff and Proposed Class filed by Plaintiffs Robert Shreve, Michael Worley. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit) (Perry, Jane) (Entered: 10/14/2010)
35 WAIVER OF SERVICE Returned Executed. Waiver sent to Mark Barrett on 9/14/2010, answer due 11/15/2010; Shannon Beaudry on 9/14/2010, answer due 11/15/2010; Jason Brobst on 9/14/2010, answer due 11/15/2010; Samuel Byrd on 9/14/2010, answer due 11/15/2010; Debra Cantrell on 9/14/2010, answer due 11/15/2010; Nathan Coleman on 9/14/2010, answer due 11/15/2010; Joshua Crosby on 9/14/2010, answer due 11/15/2010; Ben Damschroder on 9/14/2010, answer due 11/15/2010; Steven Dean on 9/14/2010, answer due 11/15/2010; James Dishong on 9/14/2010, answer due 11/15/2010; John/Jane Doe(s) on 9/14/2010, answer due 11/15/2010; Mark Eagan on 9/14/2010, answer due 11/15/2010; Doug Edgington on 9/14/2010, answer due 11/15/2010; Andrew Giles on 9/14/2010, answer due 11/15/2010; Michael Herrell on 9/14/2010, answer due 11/15/2010; James Jodrey on 9/14/2010, answer due 11/15/2010; Clayton Kern on 9/14/2010, answer due 11/15/2010; Elizabeth Klein on 9/14/2010, answer due 11/15/2010; Nicholas Lapetina on 9/14/2010, answer due 11/15/2010; Christopher Lee on 9/14/2010, answer due 11/15/2010; Chris Leonard on 9/14/2010, answer due 11/15/2010; Christopher Leonard on 9/14/2010, answer due 11/15/2010; Stephan L Martin on 9/14/2010, answer due 11/15/2010; Sam Montrose on 9/14/2010, answer due 11/15/2010; Manley Morgan on 9/14/2010, answer due 11/15/2010; Douglas Robinson on 9/14/2010, answer due 11/15/2010; John/Jane Roe(s) on 9/14/2010, answer due 11/15/2010; Jonathan Roush on 9/14/2010, answer due 11/15/2010; Derek Shively on 9/14/2010, answer due 11/15/2010; Christopher Starner on 9/14/2010, answer due 11/15/2010; Lee Vandette on 9/14/2010, answer due 11/15/2010; Daniel Waldren on 9/14/2010, answer due 11/15/2010; Nicholas Williams on 9/14/2010, answer due 11/15/2010; Curtis Winn on 9/14/2010, answer due 11/15/2010. (Perry, Jane) (Entered: 10/15/2010)
Minute Entry for proceedings held before Magistrate Judge Mark R. Abel: Telephone Conference held on 10/26/2010. (Rubey, Rachel) (Entered: 10/26/2010)
36 MOTION for Partial Summary Judgment by Defendants Franklin County Ohio, Sheriff Franklin County. Responses due by 11/19/2010 (Attachments: # 1 Affidavit Herrell, # 2 Exhibit A1, # 3 Exhibit A2, # 4 Exhibit B1, # 5 Exhibit B2, # 6 Exhibit C, # 7 Exhibit D) (Martin, Mary) (Entered: 10/26/2010)
37 Discovery Conference Order: It is ORDERED that defendants treat the interrogatory questions as questions on written deposition under Rule 32, Fed. R. Civ. P. Each of the 4 individuals who is identified as a witness for the preliminary injunction hearing must answer the questions no later than noon on November 8, 2010. Signed by Magistrate Judge Mark R. Abel on 10/26/10. (rew) (Entered: 10/27/2010)
38 MOTION for Leave to File Supplement to Defendant's Memorandum in Opposition to Plaintiffs' and Proposed Class' Motion For Preliminary Injunction by Defendants Franklin County Ohio, Sheriff Franklin County. (Attachments: # 1 Exhibit Exhibit 1, Supplement, # 2 Exhibit A, Declaration of Greg Meyer, # 3 Exhibit B, Expert Report, # 4 Exhibit B1, # 5 Exhibit B2, # 6 Exhibit B3, # 7 Exhibit B4, # 8 Exhibit B5, # 9 Exhibit B6, # 10 Exhibit B7, # 11 Exhibit B8, # 12 Exhibit B9, # 13 Exhibit B10, # 14 Exhibit B11, # 15 Exhibit B12, # 16 Exhibit B13, # 17 Exhibit B14) (Soulas, Nick) (Entered: 10/29/2010)
39 MOTION for Leave to File Supplement to Defendant's memorandum in Opposition to Plaintiff's Motion for Class Certification by Defendant Sheriff Franklin County. (Attachments: # 1 Exhibit Exhibit 1, Supplemental memorandum) (Martin, Mary) (Entered: 10/29/2010)
Counsel notified via email re Oral Argument on Motion 6 to Certify Class set for Monday, 11/1/2010, 2:00 PM in Courtroom 2 − Columbus before Judge Edmund A Sargus. (aq1) (Entered: 11/01/2010)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 19 of 30

11/01/2010
11/01/2010 11/02/2010 11/03/2010 11/03/2010 11/03/2010 11/03/2010 11/03/2010
11/04/2010 11/09/2010 11/10/2010
11/10/2010 11/12/2010
11/15/2010
11/17/2010 11/19/2010

40 ORDER granting Defendants' motions for leave to supplement their memoranda in opposition to Plaintiffs' motions for a preliminary injunction and for class certification 38 and 39 . Signed by Judge Edmund A Sargus on 11/01/2010. (dh) (Entered: 11/01/2010)
41 ORAL ARGUMENT held before Judge Edmund A Sargus on 11/1/2010, 2:00 PM re 6 MOTION to certify class (Court Reporter Darla Coulter.) (aq1) (Entered: 11/01/2010)
42 Amicus Curiae APPEARANCE entered by Mark Thomas D'Alessandro Defendant United States of America, Interested Party United States of America. (D'Alessandro, Mark) (Entered: 11/02/2010)
43 Response re 42 Amicus Curiae Appearance in Opposition to Statement of Interest by Defendants Franklin County Ohio, Sheriff Franklin County. (Soulas, Nick) (Entered: 11/03/2010)
Status/Telephone Conference set for 11/3/2010 03:00 PM in Chambers before Judge Edmund A Sargus. (aq1) (Entered: 11/03/2010)
44 Status/Telephone Conference held on Wednesday, 11/3/2010, 3:00 PM before Judge Edmund A Sargus. (Court Reporter Laura Samuels.) (aq1) (Entered: 11/03/2010)
45 MOTION to Intervene by Interested Party United States of America. (Attachments: # 1 Exhibit Memorandum, # 2 Exhibit Complaint) (D'Alessandro, Mark) (Entered: 11/03/2010)
46 ORDER vacating the preliminary injunction hearing scheduled for 11/08/10; Interested Party the United States may file a motion to intervene and disclose its expert report to other parties by 11/04/10; Defendants shall file any non−merit−based objections to the motion to intervene by 11/17/10, United States and Plaintiffs may respond within one week of service thereof; and this case is set for mediation on 11/9/2010 at 9:00 AM before Magistrate Judge Kemp. Signed by Judge Edmund A Sargus on 11/03/2010. (dh) (Entered: 11/03/2010)
47 NOTICE by Interested Party United States of America of Service of Expert Report (Attachments: # 1 Exhibit CertificateofService) (Stark, John) (Entered: 11/04/2010)
Settlement Conference held on 11/9/2010 before Magistrate Judge Terence P. Kemp. (jv) (Entered: 11/10/2010)
48 ORDER scheduling a preliminary injunction hearing for 01/10/2011 at 9:00 a.m. Defendants shall disclose names of 2 additional expert witnesses to other parties by 11/16/2010 and disclose reports of these experts within 30 days thereafter; Depositions of additional experts shall be conducted within 1 weeks of the disclosure of the experts' reports. A telephone status conference is scheduled for 11/23/2010 at 10:00 a.m. Signed by Judge Edmund A Sargus on 11/09/2010. (dh1) (Entered: 11/10/2010)
49 NOTICE by Interested Party United States of America of Substitution of Local Counsel (Stark, John) (Entered: 11/10/2010)
50 MOTION for Extension of Time of Forty−Five Days in Which to Effect Service Upon the John/Jane Doe and John/Jane Roe Defendants by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve, Michael Worley. New date requested 12/31/2010. (Perry, Jane) Modified on 11/15/2010 to clarify text (kk2) (Entered: 11/12/2010)
51 ORDER granting 50 Motion for Extension of Time of (45) forty−five days in which to effect service upon the John/Jane Doe and John/Jane Roe defendants. New deadline is 12/31/2010. Signed by Magistrate Judge Mark R Abel on 11/15/10. (rew) Modified on 11/16/2010 to correct text & judge (kk2). (Entered: 11/15/2010)
52 RESPONSE in Opposition re 45 MOTION to Intervene filed by Defendants Franklin County Ohio, Sheriff Franklin County. (Soulas, Nick) (Entered: 11/17/2010)
53 RESPONSE in Opposition re 36 MOTION for Partial Summary Judgment of the County Defendants filed by Plaintiffs Robert Shreve, Michael Worley. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6) (Perry, Jane) (Entered: 11/19/2010)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 20 of 30

11/23/2010
11/23/2010 11/24/2010 11/24/2010 11/24/2010 12/06/2010 12/06/2010 12/07/2010
12/08/2010 12/09/2010 12/10/2010 12/10/2010 12/10/2010 12/10/2010 12/13/2010 12/13/2010

54 ORDER re 11/23/2010 telephone conference: Defendants may designate an additional expert; Interested party United States may designate an expert by 11/26/2010; The schedule for submission of expert reports and depositions of experts in Doc. 48 remains in effect; Parties may utilize court−provided video−conferencing facilities for depositions. The names of non−expert witnesses and planned exhibits must be disclosed by 12/7/2010. A telephone Status Conference is scheduled for 12/7/2010 at 9:00 AM. Signed by Judge Edmund A Sargus on 11/23/2010. (dh1) (Entered: 11/23/2010)
55 NOTICE of Appearance by Marlysha Myrthil for Interested Party United States of America (Myrthil, Marlysha) (Entered: 11/23/2010)
56 NOTICE of Appearance by Anika Gzifa for Interested Party United States of America (Gzifa, Anika) (Entered: 11/24/2010)
57 REPLY to Response to Motion re 45 MOTION to Intervene filed by Interested Party United States of America. (Attachments: # 1 Exhibit) (Gzifa, Anika) (Entered: 11/24/2010)
58 REPLY to Response to Motion re 45 MOTION to Intervene of United States filed by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve, Michael Worley. (Perry, Jane) (Entered: 11/24/2010)
59 Motion to Intervene, filed by Fraternal Order of Police, Capital City Lodge No. 9. (Attachments: # 1 Exhibit Collective Bargaining Agreement, # 2 Exhibit Court Order) (Carnahan, Russell) Modified on 12/7/2010 to re−file as motion. (pes1). (Entered: 12/06/2010)
60 REPLY to Response to Motion re 36 MOTION for Partial Summary Judgment filed by Defendant Sheriff Franklin County. (Attachments: # 1 Exhibit DEposition of Robert Shreve) (Martin, Mary) (Entered: 12/06/2010)
61 ORDER re 12/07/2010 telephone conference: Parties may file objections to Fraternal Order of Police's Motion to Intervene by 12/14/2010; the FOP may respond to objections by 12/21/2010. The FOP shall notify the Court if it plans to designate an expert witness by 12/14/2010. Plaintiffs may supplement their witness list by 12/14/2010. A telephone Status Conference is scheduled for 12/21/2010 at 10:00 a.m. Signed by Judge Edmund A Sargus on 12/07/2010. (dh1) (Entered: 12/07/2010)
62 MOTION for Leave to File Amicus Brief by the National Fraternal Order of Police on Behalf of Defendants by Movant Fraternal Order of Police, Capital City Lodge No. 9. (James, Larry) (Entered: 12/08/2010)
63 NOTICE of TELEPHONE Status Conference set for Friday, 12/10/2010, 9:30 AM before Judge Edmund A Sargus. (aq1). (Entered: 12/09/2010)
64 ORDER resetting the preliminary injunction hearing from 01/10/2011 to Monday, 01/24/2011 at 9:00 a.m. Plaintiff and Interested Party the United States of America are permitted to depose up to 15 witnesses from the witness list submitted by Defendants. Signed by Judge Edmund A Sargus on 12/10/2010. (dh1) (Entered: 12/10/2010)
65 NOTICE of Appearance by Aaron S Fleisher for Interested Party United States of America (Fleisher, Aaron) (Entered: 12/10/2010)
Partial Filing fee: $ 4.00, receipt number 015214. (rew) (Entered: 12/10/2010)
66 Unopposed MOTION to Amend/Correct 15 Amended Complaint, 1 Complaint, by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve, Michael Worley. (Attachments: # 1 Exhibit Second Amended Complaint) (Perry, Jane) (Entered: 12/10/2010)
67 NOTICE of Appearance by Christina Corl for Movant Fraternal Order of Police, Capital City Lodge No. 9 (Corl, Christina) (Entered: 12/13/2010)
68 RESPONSE in Opposition re 59 MOTION to Intervene FOP as Defendant filed by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve, Michael Worley. (Perry, Jane) (Entered: 12/13/2010)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 21 of 30

12/14/2010
12/14/2010 12/15/2010
12/15/2010 12/15/2010 12/16/2010 12/20/2010 12/22/2010 12/22/2010 12/28/2010 12/30/2010 01/04/2011 01/04/2011

69 OPINION AND ORDER: The Court GRANTS Plaintiffs' Motion for Class Certification and Appointment of Class Counsel 4 ; Interested Party the United States of America's Motion to Intervene 45 ; the Motion of the National Fraternal Order of Police to File an Amicus Brief on Behalf of Defendants 62 ; and Plaintiffs' Motion for Leave to File Second Amended Complaint 66 . Plaintiffs' Motion to Compel Inspection 14 is DISMISSED. The Clerk shall add the United States as a full party, Plaintiff−Intervenor to this action and enter the United States' Complaint in Intervention on the docket. The National Fraternal Order of Police may appear as an amicus curiae and file a brief and other memoranda of law on behalf of Defendants. A class consisting of "all persons who, now or at any future time during the pendency of this litigation, are or will be placed in the custody of the Franklin County Sheriff's Department at the Franklin County Corrections Centers" is hereby certified on a provisional basis and counsel for Plaintiffs are appointed class counsel to represent the class. Signed by Judge Edmund A Sargus on 12/14/2010. (dh1) (Entered: 12/14/2010)
70 Intervenor COMPLAINT by United States of America. (dh1) (Entered: 12/14/2010)
71 AMENDED COMPLAINT Second against Mark Barrett, Shannon Beaudry, Jason Brobst, Samuel Byrd, Debra Cantrell, Nathan Coleman, Joshua Crosby, Ben Damschroder, Steven Dean, James Dishong, Mark Eagan, Doug Edgington, Franklin County Ohio, Andrew Giles, Michael Herrell, James Jodrey, Clayton Kern, Elizabeth Klein, Nicholas Lapetina, Christopher Lee, Christopher Leonard, Stephan L Martin, Sam Montrose, Manley Morgan, Douglas Robinson, Jonathan Roush, Sheriff Franklin County, Derek Shively, Christopher Starner, Lee Vandette, Daniel Waldren, Nicholas Williams, Curtis Winn, Robert Forino, Stephanie Klumpp, Geoffrey Stobart, Charles Williamson, Amy Hanes, filed by Michael Reed, Robert Shreve, Michael Worley, Dawn Fiore−Bruno. (Perry, Jane) (Entered: 12/15/2010)
72 MOTION for Leave to Appear Pro Hac Vice of Michael A. Brave (Filing fee $ 200) by Defendants Franklin County Ohio, Sheriff Franklin County. (Attachments: # 1 Exhibit Certificate of Good Standing) (Soulas, Nick) (Entered: 12/15/2010)
PHV Filing fee re: 72 $ 200, receipt number COL15281 (pes1) (Entered: 12/15/2010)
73 ORDER granting 72 Motion for Leave to Appear Pro Hac Vice of Michael A Brave on behalf of defendants Franklin County Ohio and the Franklin County Sheriff. Signed by Magistrate Judge Mark R. Abel on 12/16/10. (rew) (Entered: 12/16/2010)
74 REPLY to 68 Response to 59 MOTION to Intervene filed by Amicus Fraternal Order of Police, Capital City Lodge No. 9. (Carnahan, Russell) Modified text and created link on 12/23/2010 (er1). (Entered: 12/20/2010)
75 ORDER rescheduling preliminary injunction hearing to 01/26/2011 at 9:00 a.m.; scheduling mediation before Magistrate Judge Kemp for 01/14/2011 at 9:00 a.m.; and scheduling a telephone status conference for 01/04/2011 at 10:00 a.m. Signed by Judge Edmund A Sargus on 12/22/2010. (dh1) (Entered: 12/22/2010)
76 WAIVER OF SERVICE Returned Executed. Waiver sent to Robert Forino on 12/15/2010, answer due 2/14/2011; Stephanie Klumpp on 12/15/2010, answer due 2/14/2011; Geoffrey Stobart on 12/15/2010, answer due 2/14/2011; Charles Williamson on 12/15/2010, answer due 2/14/2011. (Perry, Jane) (Entered: 12/22/2010)
77 NOTICE by Defendants Franklin County Ohio, Sheriff Franklin County of Appearance of Michael A. Brave as Additional Counsel (Soulas, Nick) (Entered: 12/28/2010)
78 Unopposed MOTION for Extension of Time New date requested 1/31/2011. by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve, Michael Worley. (Henry, Kristen) (Entered: 12/30/2010)
79 ORDER re preliminary injunction hearing: The Parties may file motions in limine, including motions pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) by 01/14/2011. Any responses to such motions shall be filed by 01/21/2011. Signed by Judge Edmund A Sargus on 01/04/2011. (dh1) (Entered: 01/04/2011)
80 ORDER granting 78 Plaintiffs' Unopposed Motion for Extension of Time in which to effect service of process upon Amy Hanes by 1/31/2011. Signed by Magistrate Judge

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01/10/2011 01/10/2011 01/11/2011 01/13/2011 01/14/2011
01/14/2011 01/20/2011 01/21/2011 01/21/2011 01/21/2011 01/21/2011 01/21/2011
01/24/2011 01/25/2011 02/04/2011 02/04/2011
02/04/2011 02/04/2011

Mark R. Abel on 1/4/2011. (er1) (Entered: 01/05/2011)
81 NOTICE of Appearance by Michelle Leung for Intervenor Plaintiff United States of America (Leung, Michelle) (Entered: 01/10/2011)
82 NOTICE of Appearance by Samantha Trepel for Intervenor Plaintiff United States of America (Trepel, Samantha) Modified on 1/11/2011 to correct text and to remove from motion calendar (jcw1). (Entered: 01/10/2011)
83 ORDER: Pursuant to the Court's oral decision on 01/07/2011, Michelle Leung is admitted to appear before this Court. Signed by Judge Edmund A Sargus on 01/11/2011. (dh1) (Entered: 01/11/2011)
84 NOTICE of Appearance by Kerry Kreutler Dean for Intervenor Plaintiff United States of America (Dean, Kerry) (Entered: 01/13/2011)
85 Joint MOTION in Limine to Exclude Testimony of Defendant Expert by Intervenor Plaintiff United States of America. (Attachments: # 1 Supplement Memo of Law in Support of Motion, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Fleisher, Aaron) (Entered: 01/14/2011)
Settlement Conference held on 1/14/2011 before Magistrate Judge Terence P. Kemp. (jv) (Entered: 01/27/2011)
86 NOTICE: Telephone Status Conference set for 1/21/2011, 10:00 AM before Judge Edmund A Sargus. (aq1) (Entered: 01/20/2011)
87 NOTICE of IN−PERSON Status Conference set for TUESDAY, 1/25/2011, 12:00 NOON in Chambers, Rm 301, before Judge Edmund A Sargus. (aq1) (Entered: 01/21/2011)
88 NOTICE of Appearance by Tammie Monique Gregg for Intervenor Plaintiff United States of America (Gregg, Tammie) (Entered: 01/21/2011)
89 NOTICE of Appearance by Sergio Perez for Intervenor Plaintiff United States of America (Perez, Sergio) (Entered: 01/21/2011)
90 NOTICE of Appearance by Ronald Joseph O'Brien for Defendants Franklin County Ohio, Sheriff Franklin County (O'Brien, Ronald) (Entered: 01/21/2011)
91 RESPONSE in Opposition re 85 Joint MOTION in Limine to Exclude Testimony of Defendant Expert filed by Defendants Franklin County Ohio, Sheriff Franklin County. (Attachments: # 1 Exhibit Exhibit A − Frasier Depo. Excerpt) (Soulas, Nick) (Entered: 01/21/2011)
92 NOTICE by Plaintiffs Robert Shreve, Michael Worley of Filing of Subpoena with Proof of Service (Perry, Jane) (Entered: 01/24/2011)
93 OPINION AND ORDER granting 59 the Fraternal Order of Police, Capital City Lodge No. 9's Motion to Intervene. Signed by Judge Edmund A Sargus on 01/25/2011. (dh1) (Entered: 01/25/2011)
94 Joint MOTION for Settlement by Intervenor Plaintiff United States of America. (Attachments: # 1 Exhibit Settlement Agreement, # 2 Text of Proposed Order) (Fleisher, Aaron) (Entered: 02/04/2011)
95 Joint MOTION for Hearing on Final Approval of Class Action Settlement by Plaintiffs Robert Shreve, Michael Worley. (Attachments: # 1 Exhibit Agreement Between Plaintiffs and Defendants, # 2 Exhibit Notice of Proposed Class Settlement) (Perry, Jane) (Entered: 02/04/2011)
96 ORDER granting 94 Joint Motion for Entry of Settlement Agreement by the United States and Defendants. Signed by Judge Edmund A Sargus on 02/04/2011. (dh1) (Entered: 02/04/2011)
97 ORDER re 95 Joint Motion for Preliminary Approval of the Class Action Settlement. The Court preliminarily approves the Agreement between Plaintiffs and Defendants. The Court approves the notice of proposed class settlement and the manner in which the notice will be published. A hearing on the final approval of the Agreement is set

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 23 of 30

02/04/2011 02/18/2011
03/03/2011
03/10/2011
03/10/2011
03/10/2011 04/08/2011 04/25/2011 04/29/2011 05/04/2011 05/23/2011 08/11/2011 08/18/2011
08/23/2011 08/29/2011

for 03/10/2011 at 10:00 a.m. Objections by class members must be mailed to the Clerk w/i 14 days of the date on which notice is posted. The Clerk shall provide copies of any objections to counsel for Plaintiffs and Defendants. Plaintiffs and Defendants may respond to any objections within 21 days of the date on which the notice is posted. Signed by Judge Edmund A Sargus on 02/04/2011. (dah1) (Entered: 02/04/2011)
Set Hearing: Hearing on final approval of Agreement set for 3/10/2011 at 10:00 AM. (dh1) (Entered: 02/04/2011)
98 ORDER MODIFYING CASE SCHEDULE: All defendants sued in their individual capacities need not respond to the complaint unless & until the Court should refuse to approve the settlement & order that the case proceed to trial. In that event, defendants answers in their individual capacities & any motions for leave to amend the pleadings or to add parties must be filed no later than thirty (30) days after the order refusing to approve the settlement is filed. Signed by Magistrate Judge Mark R. Abel on 2/18/2011. (kjm1) (Entered: 02/18/2011)
99 AMENDED ORDER MODIFYING CASE SCHEDULE: All defendants sued in their individual capacities are ORDERED to respond to the complaint, and any stipulation or motion for leave to amend the pleadings and/or add parties, must be filed no later than 30 days after the District Judge issues an order approving or disapproving of the class action settlement. Signed by Magistrate Judge Mark R. Abel on 3/3/2011. (er1) (Entered: 03/03/2011)
Minute Entry for proceedings: Hearing on Final Approval of Agreement held before Judge Edmund A Sargus; Counsel for Parties, including Pltf Robert Shreve with Language Interpreter,Cynthia Dobronyi, present; Court approved Agreement. (Court Reporter Laura Samuels.) (aq1) (Entered: 03/10/2011)
100 ORDER : Agreement between Plaintiffs and Defendants APPROVED; Plaintiffs' claim for Injunctive relief is conditionally dismissed and the Fraternal Order of Police Capital City Lodge #9 is conditionally dismissed as a Defendant. Signed by Judge Edmund A Sargus on 3/10/11. (aq1) (Entered: 03/10/2011)
101 AGREEMENT BETWEEN PLAINTIFFS AND DEFENDANTS (aq1) (Entered: 03/10/2011)
102 MOTION to Amend/Correct by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve, Michael Worley. (Attachments: # 1 Exhibit Third Amended Complaint) (Perry, Jane) (Entered: 04/08/2011)
103 ORDER granting 102 Motion to Amend the Complaint. Signed by Magistrate Judge Mark R. Abel on 4/25/11. (jr1) (Entered: 04/25/2011)
104 AMENDED COMPLAINT Third against All Defendants, filed by Michael Reed, Robert Shreve, Michael Worley, Dawn Fiore−Bruno. (Perry, Jane) (Entered: 04/29/2011)
105 NOTICE of Voluntary Dismissal by Plaintiffs Robert Shreve, Michael Worley (Perry, Jane) (Entered: 05/04/2011)
106 MOTION to Consolidate Cases and Motion for Status Conference by Plaintiffs Dawn Fiore−Bruno, Michael Reed. (Perry, Jane) (Entered: 05/23/2011)
107 MOTION to Substitute Party /Parties by Plaintiffs Dawn Fiore−Bruno, Michael Reed. (Perry, Jane) (Entered: 08/11/2011)
108 ORDER granting 107 Motion to Substitute Party. Zach Scott, in his official capacity is SUBSTITUTED in place of Jim Karnes. Marty Beuchner, in his official capacity is SUBSTITUTED in place of Stephan L. Martin in his offical capacity. Stephan L. Martin continues as a defendant in his individual capacity. Signed by Magistrate Judge Mark R. Abel on 08/18/2011. (sr) (Entered: 08/18/2011)
109 Summons Issued as to Liz Mehl. (sr) (Entered: 08/23/2011)
110 MOTION for Extension of Time New date requested 9/27/2011. by Plaintiffs Dawn Fiore−Bruno, Michael Reed. (Attachments: # 1 Exhibit Declaration of John Cleveland) (Perry, Jane) (Entered: 08/29/2011)

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08/31/2011 08/31/2011 09/02/2011 09/02/2011
09/07/2011 09/07/2011 09/07/2011 09/14/2011 09/16/2011

111 ORDER granting 110 Motion for Extension of Time to effect service of process. Plaintiffs shall have until 09/28/2011 to effect service of process on Liz Mehl. Signed by Magistrate Judge Mark R. Abel on 08/31/2011. (sr) (Entered: 08/31/2011)
112 ORDER dismissing as moot without prejudice 36 the Motion for Partial Summary Judgment of the County Defendants, given the voluntary dismissal of the individual claims for money damages of Plaintiffs Shreve and Worley. Plaintiffs and the United States' Joint Motion in Limine to Exclude Testimony of Defendants' Expert, Carrie L. Sandbaken Hill 85 is dismissed as moot without prejudice given the parties' settlement of Plaintiffs' request for preliminary injunctive relief prior to the scheduled hearing. Signed by Judge Edmund A Sargus on 08/31/2011. (dh1) (Entered: 08/31/2011)
113 AMENDED SCHEDULING ORDER: Any motion addressing jurisdiction or venue is due by 09/16/2011. Primary Expert due by 11/30/2011. Rebuttal Expert due by 1/16/2012. Dispositive motions due by 3/15/2012. Discovery due by 2/15/2012. Defendants will answer or respond to complaints in 2:10−cv−644 and 2:11−cv−415 by 09/16/2011. Counsel are DIRECTED to call Magistrate Judge Abel @ (614) 719−3370 on or before 02/15/2012 to scheduled a conference to discuss discovery. Signed by Magistrate Judge Mark R. Abel on 09/02/2011. (sr) (Entered: 09/02/2011)
Set/Reset Deadlines: Mark Barrett answer due 9/16/2011; Shannon Beaudry answer due 9/16/2011; Jason Brobst answer due 9/16/2011; Marty Buechner answer due 9/16/2011; Samuel Byrd answer due 9/16/2011; Debra Cantrell answer due 9/16/2011; Nathan Coleman answer due 9/16/2011; Joshua Crosby answer due 9/16/2011; Ben Damschroder answer due 9/16/2011; Steven Dean answer due 9/16/2011; James Dishong answer due 9/16/2011; Mark Eagan answer due 9/16/2011; Doug Edgington answer due 9/16/2011; Robert Forino answer due 9/16/2011; Franklin County Ohio answer due 9/16/2011; Fraternal Order of Police, Capital City Lodge No. 9 answer due 9/16/2011; Andrew Giles answer due 9/16/2011; Amy Hanes answer due 9/16/2011; Michael Herrell answer due 9/16/2011; James Jodrey answer due 9/16/2011; Clayton Kern answer due 9/16/2011; Elizabeth Klein answer due 9/16/2011; Stephanie Klumpp answer due 9/16/2011; Nicholas Lapetina answer due 9/16/2011; Christopher Lee answer due 9/16/2011; Chris Leonard answer due 9/16/2011; Christopher Leonard answer due 9/16/2011; Stephan L. Martin answer due 9/16/2011; Liz Mehl answer due 9/16/2011; Sam Montrose answer due 9/16/2011; Manley Morgan answer due 9/16/2011; Douglas Robinson answer due 9/16/2011; Jonathan Roush answer due 9/16/2011; Zach Scott answer due 9/16/2011; Sheriff Franklin County answer due 9/16/2011; Derek Shively answer due 9/16/2011; Christopher Starner answer due 9/16/2011; Geoffrey Stobart answer due 9/16/2011; Lee Vandette answer due 9/16/2011; Daniel Waldren answer due 9/16/2011; Nicholas Williams answer due 9/16/2011; Charles Williamson answer due 9/16/2011; Curtis Winn answer due 9/16/2011. (sr) (Entered: 09/02/2011)
114 CERTIFICATE of Mailing by Clerk: Summons, Third Amended Individual Complaint for Damages and Third Amended Class Action Complaint for Declaratory and Injunction Relief sent certified mail (7011 0470 0003 0207 0664) to Elizabeth Irene Mehl. (sr) (Entered: 09/07/2011)
115 WAIVER OF SERVICE Returned Executed. Waiver sent to Liz Mehl on 7/22/2011, answer due 9/20/2011. (Perry, Jane) (Entered: 09/07/2011)
116 ORDER granting (106) Motion to Consolidate Cases in case 2:10−cv−00644; granting (3) Motion to Consolidate Cases in case 2:11−cv−00261; granting (3) Motion to Consolidate Cases in case 2:11−cv−00415. The Parties should contact the chambers of Magistrate Judge Abel if they would like to schedule a status conference regarding this Order. Signed by Judge Edmund A Sargus on 09/07/2011. Associated Cases: 2:10−cv−00644, 2:11−cv−00261, 2:11−cv−00415. (dh1) (Entered: 09/07/2011)
117 Notice of Mediation Conference: Conference to be held in Judge Watson's Jury Rooms, 85 Marconi Boulevard, Columbus, Ohio on 10/24/2011 at 10:00 AM. (Attachments: # 1 Conference instructions) Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (rsk) (Entered: 09/14/2011)
118 ANSWER to 104 Amended Complaint filed by Mark Barrett, Shannon Beaudry, Jason Brobst, Marty Buechner, Samuel Byrd, Debra Cantrell, Nathan Coleman, Joshua Crosby, Ben Damschroder, Steven Dean, James Dishong, Mark Eagan, Doug

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09/19/2011 09/20/2011 09/21/2011 09/21/2011 09/25/2011
09/26/2011 09/27/2011 09/29/2011 09/29/2011 09/30/2011
10/03/2011 10/04/2011

Edgington, Robert Forino, Franklin County Ohio, Andrew Giles, Amy Hanes, Michael Herrell, James Jodrey, Clayton Kern, Elizabeth Klein, Stephanie Klumpp, Nicholas Lapetina, Christopher Lee, Chris Leonard, Christopher Leonard, Stephan L Martin, Stephan L. Martin, Sam Montrose, Manley Morgan, Douglas Robinson, Jonathan Roush, Zach Scott, Sheriff Franklin County, Derek Shively, Christopher Starner, Geoffrey Stobart, Lee Vandette, Daniel Waldren, Nicholas Williams, Charles Williamson, Curtis Winn. (Martin, Mary) (Entered: 09/16/2011)
119 SUMMONS Returned Executed: Liz Mehl served on 9/16/2011, answer due 10/7/2011. (er1) Modified on 9/21/2011 to correct dates (jr1). (Entered: 09/20/2011)
120 MOTION for Appointment of Magistrate or Neutral Mediator by Plaintiffs Robert Shreve, Michael Worley. (Attachments: # 1 Exhibit 1 − Notice of Non−Compliance, # 2 Exhibit 2 − DOJ Notice of Non−Compliance, # 3 Exhibit 3 − Follow−Up to Notice of Non−Compliance, # 4 Exhibit 4 − FCSO Response to Non−Compliance, # 5 Exhibit 5 − Notice to FCSO) (Perry, Jane) (Entered: 09/20/2011)
Set Deadlines/Hearings: Liz Mehl answer due 10/7/2011. (jr1) (Entered: 09/21/2011)
121 ORDER : Response to Plaintiffs' Motion for Appointment of a Magistrate Judge or Neutral Party re Mediating Notice of Non−Compliance due on 9/26/2011. Signed by Judge Edmund A Sargus on 9/21/11. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (aq1) (Entered: 09/21/2011)
122 RESPONSE to Motion re (120 in 2:10−cv−00644−EAS−MRA) MOTION for Appointment of Magistrate or Neutral Mediator and Motion to Join Plaintiffs' Motion and Include United States' Notice of Non−Compliance in Mediation filed by Intervenor Plaintiff United States of America. (Attachments: # 1 Exhibit 1 United States' Letter to FCSO 9.13.2011) Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (Myrthil, Marlysha) (Entered: 09/25/2011)
123 RESPONSE to Motion re 120 MOTION for Appointment of Magistrate or Neutral Mediator filed by Defendants Franklin County Ohio, Zach Scott, Sheriff Franklin County. (Martin, Mary) (Entered: 09/26/2011)
124 ORDER: Defendants have expressed a preference for the undersigned to conduct the mediation requested by Plaintiffs. Plaintiffs and the United States shall respond with their positions re this request by 09/29/2011. Signed by Judge Edmund A Sargus on 09/27/2011. (dh1) (Entered: 09/27/2011)
125 REPLY to Response to Motion re 120 MOTION for Appointment of Magistrate or Neutral Mediator filed by Plaintiffs Robert Shreve, Michael Worley. (Perry, Jane) (Entered: 09/29/2011)
126 REPLY to Response to Motion re (120 in 2:10−cv−00644−EAS−MRA) MOTION for Appointment of Magistrate or Neutral Mediator filed by Intervenor Plaintiff United States of America. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (Myrthil, Marlysha) (Entered: 09/29/2011)
127 ORDER granting 120 Plaintiff's Motion for Appointment of a Magistrate Judge or other Neutral Party for Purposes of Mediating the Notice of Non−Compliance Issued by Plaintiffs on 08/18/2011 and 122 the United States' Motion to Join Plaintiffs' Motion for Appointment of Magistrate Judge or Other Neutral Party. The Court appoints Magistrate Judge Terence Kemp as Mediator of the issues raised in the respective notices of non−compliance filed by the Plaintiffs and the United States. Signed by Judge Edmund A Sargus on 09/30/2011. (dh1) (Entered: 09/30/2011)
128 STIPULATION for Extension of Time to File Answer by Defendant Liz Mehl. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (Martin, Adam) (Entered: 10/03/2011)
129 MOTION to Strike 118 Answer to Amended Complaint,,, Affirmative Defenses by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Robert Shreve, Michael Worley. Responses due by 10/25/2011 (Perry, Jane) (Entered: 10/04/2011)

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 26 of 30

10/05/2011 10/10/2011 10/11/2011
10/13/2011 10/20/2011 10/28/2011
10/28/2011 11/11/2011 11/11/2011 11/15/2011 11/17/2011 12/02/2011

Set Deadlines/Hearings: Liz Mehl answer due 10/28/2011. (jr1) (Entered: 10/05/2011)
130 MOTION for Extension of Time New date requested 1/30/2012. by Defendants Liz Mehl, M Inman, Bill Silone. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (Martin, Adam) (Entered: 10/10/2011)
131 ORDER granting (130) Motion for Extension of Time in case 2:10−cv−00644−EAS−MRA; granting (16) Motion for Extension of Time in case 2:11−cv−00415−EAS−MRA; ddl for primary expert disclosures 1/30/12; ddl for responsive expert disclosures 3/16/12; dispositive motions must be filed by 5/15/12. Signed by Magistrate Judge Mark R. Abel on 10/11/11. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00415−EAS−MRA (sh1) (Entered: 10/11/2011)
132 NOTICE: Settlement Conference set for 10/20/2011 @ 9:00am in chambers before Magistrate Judge Terence P Kemp − Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (wh1) (Entered: 10/13/2011)
Settlement Conference held on 10/20/2011 before Magistrate Judge Terence P. Kemp. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (jv) (Entered: 10/27/2011)
133 RESPONSE in Opposition re (129 in 2:10−cv−00644−EAS−MRA) MOTION to Strike (118) Answer to Amended Complaint,,, Affirmative Defenses, (15 in 2:11−cv−00415−EAS−MRA) MOTION to Strike (10) Answer to Complaint,, Affirmative Defenses filed by Defendants Mark Barrett, Shannon Beaudry, Jason Brobst, Marty Buechner, Samuel Byrd, Debra Cantrell, Nathan Coleman, Joshua Crosby, Ben Damschroder, Steven Dean, James Dishong, Mark Eagan, Doug Edgington, Robert Forino, Franklin County Ohio, Andrew Giles, Amy Hanes, Michael Herrell, James Jodrey, Clayton Kern, Elizabeth Klein, Stephanie Klumpp, Nicholas Lapetina, Christopher Lee, Chris Leonard, Christopher Leonard, Stephan L Martin, Stephan L. Martin, Sam Montrose, Manley Morgan, Douglas Robinson, Jonathan Roush, Zach Scott, Sheriff Franklin County, Derek Shively, Christopher Starner, Geoffrey Stobart, Lee Vandette, Daniel Waldren, Nicholas Williams, Charles Williamson, Curtis Winn, Mark Barrett, Marty Buechner, Debra Cantrell, Nathan Coleman, Joshua Crosby, Ben Damschroder, Jenilee Deming, Mark Eagan, Derek Eden, Andrew Eing, Robert Forino, Franklin County Sheriff, Franklin County, Ohio, Andrew Giles, Michael Herrell, Jim Karnes, Stephanie Klumpp, Nicholas Lapetina, Jason Lawler, Christopher Lee, Christopher Leonard, Stephan L Martin, Stephan L. Martin, Manley Morgan, Douglas Robinson, Jonathan Roush, Lewis Schrader, Zach Scott, Geoffrey Stobart, Daniel Waldren, Al Wansik, Nicholas Williams, Charles Williamson, Curtis Winn. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00415−EAS−MRA (Soulas, Nick) (Entered: 10/28/2011)
134 ANSWER to 104 Amended Complaint filed by Liz Mehl. (Martin, Adam) (Entered: 10/28/2011)
135 NOTICE to Take Deposition of Nicole Bradley by Defendants Liz Mehl, Margeux Inman, Bill Silone. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA (Martin, Adam) (Entered: 11/11/2011)
136 NOTICE to Take Deposition of Dawn Fiore−Bruno by Defendants Liz Mehl, Margeux Inman, Bill Silone. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA (Martin, Adam) (Entered: 11/11/2011)
137 REPLY to Response to Motion re 129 MOTION to Strike 118 Answer to Amended Complaint,,, Affirmative Defenses filed by Plaintiffs Dawn Fiore−Bruno, Michael Reed. (Perry, Jane) (Entered: 11/15/2011)
138 MOTION to Strike Selected Affirmative Defenses by Plaintiffs Dawn Fiore−Bruno, Michael Reed. Responses due by 12/8/2011 (Perry, Jane) (Entered: 11/17/2011)
139 RESPONSE in Opposition re (138 in 2:10−cv−00644−EAS−MRA and 33 in 2:11−cv−00261−EAS−MRA) MOTION to Strike Selected Affirmative Defenses filed by Defendants Liz Mehl, Margeux Inman, Bill Silone. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA (Martin, Adam) Modified

Case: 2:10-cv-644 As of: 11/05/2016 04:12 PM EDT 27 of 30

12/16/2011 12/27/2011 12/27/2011 12/28/2011 01/30/2012 01/31/2012
02/01/2012 02/17/2012 04/10/2012

on 12/5/2011 to add link to #138. (pes1). (Entered: 12/02/2011)
140 REPLY to Response to Motion re 138 MOTION to Strike Selected Affirmative Defenses of Defendant Mehl filed by Plaintiff Dawn Fiore−Bruno. (Perry, Jane) (Entered: 12/16/2011)
141 NOTICE by Defendants Liz Mehl, Margeux Inman, Bill Silone of Service of Initial Disclosures Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA (Martin, Adam) (Entered: 12/27/2011)
142 Joint MOTION for Extension of Time New date requested 4/30/2012. by Defendants Liz Mehl, Margeux Inman, Bill Silone. (Attachments: # 1 Proposed Order) Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA (Martin, Adam) (Entered: 12/27/2011)
143 AMENDED SCHEDULING ORDER: December 27, 2011 motion extending ddls by 90 days (doc. #142) is GRANTED; primary experts Rule 26(a)(2) disclosures due 4/30/12; Discovery due by 7/16/2012. Motions due by 8/14/2012.. Signed by Magistrate Judge Mark R. Abel on 12/28/11. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (sh1) (Entered: 12/28/2011)
144 NOTICE by Plaintiffs Dawn Fiore−Bruno, Michael Reed of Withdrawal and Substitution of Trial Counsel (Perry, Jane) (Entered: 01/30/2012)
145 NOTICE of Appearance by Jeremy David Smith for Defendants Mark Barrett, Shannon Beaudry, Jason Brobst, Marty Buechner, Samuel Byrd, Debra Cantrell, Nathan Coleman, Joshua Crosby, Ben Damschroder, Steven Dean, James Dishong, Mark Eagan, Doug Edgington, Robert Forino, Franklin County Ohio, Andrew Giles, Michael Herrell, James Jodrey, Clayton Kern, Elizabeth Klein, Stephanie Klumpp, Nicholas Lapetina, Christopher Lee, Chris Leonard, Christopher Leonard, Stephan L Martin, Stephan L. Martin, Sam Montrose, Manley Morgan, Douglas Robinson, Jonathan Roush, Zach Scott, Sheriff Franklin County, Derek Shively, Christopher Starner, Geoffrey Stobart, Lee Vandette, Daniel Waldren, Nicholas Williams, Charles Williamson, Curtis Winn, Daniel Adkins, Shawnda Arnold, Mark Barrett, Heather Barry, Marty Buechner, Timothy Christian, Nathan Coleman, Steven Dean, Douglas Edgington, Rhonda Edwards, Keif Fetch, Robert Forino, Franklin County Sheriff, Franklin County, Ohio, Brian Fritz, Charlie Frizzell, Greg Goodrich, Stephanie Habecker, Michael Herrell, James Jodrey, Jim Karnes, Stephanie Klumpp, Kristopher Koller, Christi Little, Laura Martin, Stephan L Martin, Robert Miller, Mark Montrose, Eric Rakich, Zach Scott, David Srey, Matthew Stice, Geoffrey Stobart, Shari Ward, April Welton, Charles Williamson, Mark Barrett, Marty Buechner, Debra Cantrell, Nathan Coleman, Joshua Crosby, Ben Damschroder, Jenilee Deming, Mark Eagan, Derek Eden, Andrew Eing, Robert Forino, Franklin County Sheriff, Franklin County, Ohio, Andrew Giles, Michael Herrell, Jim Karnes, Stephanie Klumpp, Nicholas Lapetina, Jason Lawler, Christopher Lee, Christopher Leonard, Stephan L Martin, Stephan L. Martin, Manley Morgan, Douglas Robinson, Jonathan Roush, Lewis Schrader, Zach Scott, Geoffrey Stobart, Daniel Waldren, Al Wansik, Nicholas Williams, Charles Williamson, Curtis Winn Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (Smith, Jeremy) (Entered: 01/31/2012)
146 ORDER SETTING TRIAL DATE AND SETTLEMENT CONFERENCE: Settlement Conference set for 1/3/2013 at 9:30 AM; Final Pretrial Conference set for 1/31/2013 at 9:00 AM; and Jury Trial set for 2/11/2013 at 9:00 AM. Signed by Judge Edmund A Sargus on 01/27/2012. (Attachment: FPTO Form) Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (dh1) (Entered: 02/01/2012)
147 ORDER in case 2:10−cv−00644−EAS−MRA; granting (26) Motion to Take Deposition from Frankie Mosely in case 2:11−cv−00415−EAS−MRA. Signed by Magistrate Judge Mark R. Abel on 2/16/12. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA (sh1) (Entered: 02/17/2012)
148 Unopposed MOTION for Extension of Time New date requested 5/31/2012. 7/16/2012, 8/16/2012, 9/14/2012 by Plaintiffs Dawn Fiore−Bruno, Michael Reed,

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04/11/2012
04/12/2012 05/04/2012
05/17/2012 06/27/2012 06/27/2012 07/16/2012 08/17/2012 08/23/2012 09/11/2012

Dawn Powell, Nicole Bradley, Dawn Fiore−Bruno, Rebecca Genheimer, Frankie Mosley, Robert Shreve. (Attachments: # 1 Text of Proposed Order) Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (Henry, Kristen) (Entered: 04/10/2012)
149 ORDER granting (148) Motion for Extension of Time in case 2:10−cv−00644−EAS−MRA; granting (55) Motion for Extension of Time in case 2:11−cv−00261−EAS−MRA; granting (28) Motion for Extension of Time in case 2:11−cv−00415−EAS−MRA; granting (9) Motion for Extension of Time in case 2:12−cv−00070−EAS−MRA; Primary expert disclosure is 5/31/12, response due 7/16/12; discovery deadline 8/16/12, dispositive motions deadline is 9/14/12; Status report deadline is 5/12/12 parties to call the Magistrate Judge. Signed by Magistrate Judge Mark R. Abel on 4/11/12. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (sh1) (Entered: 04/11/2012)
Set/Reset Columbus PPTO Deadlines: Primary Expert due by 5/31/2012. Rebuttal Expert due by 7/16/2012. Discovery due by 8/16/2012. Dispositive motions due by 9/14/2012. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (pes1) (Entered: 04/12/2012)
150 OPINION AND ORDER granting in part and denying in part Plaintiffs' Motions to Strike Affirmative Defenses ( 138 in 2:10−cv−00644; 33 in 2:11−cv−00261; 15 in 2:11−cv−00415). Specifically, the Court grants the motion as it relates to the Defendants' Second, Third, Fourth and Eleventh affirmative defenses and strikes those defenses and denies the motion in all other regards. Signed by Judge Edmund A Sargus on 05/04/2012. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (dh1) (Entered: 05/04/2012)
151 NOTICE of Appearance by Mohammed Noure Alo for Plaintiff Michael Reed Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (Alo, Mohammed) (Entered: 05/17/2012)
152 NOTICE to Take Deposition of Jeffrey Smalldon, Ph.D. by Defendants Liz Mehl, Margeux Inman, Bill Silone. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA (Martin, Adam) (Entered: 06/27/2012)
153 NOTICE to Take Deposition of Steve Martin by Defendants Liz Mehl, Margeux Inman, Bill Silone. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA (Martin, Adam) (Entered: 06/27/2012)
154 NOTICE by Defendants Liz Mehl, Margeux Inman, Bill Silone of Identification of Expert Witnesses Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA (Martin, Adam) (Entered: 07/16/2012)
155 NOTICE by Plaintiffs Dawn Fiore−Bruno, Dawn Powell, Nicole Bradley, Dawn Fiore−Bruno, Frankie Mosley to Take Deposition of Gregory Meyer Deuces Tecum Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (Henry, Kristen) (Entered: 08/17/2012)
156 NOTICE by Plaintiffs Dawn Fiore−Bruno, Dawn Powell, Nicole Bradley, Dawn Fiore−Bruno, Frankie Mosley of Deposition of Michael W. Quinn Duces Tecum Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (Henry, Kristen) (Entered: 08/23/2012)
157 Unopposed MOTION for Extension of Time New date requested 9/28/2012. to File Dispositive Motions by Plaintiffs Dawn Fiore−Bruno, Michael Reed, Dawn Powell, Nicole Bradley, Dawn Fiore−Bruno, Frankie Mosley. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (Henry, Kristen) (Entered: 09/11/2012)

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09/12/2012
09/28/2012
09/28/2012 09/28/2012 09/28/2012 09/28/2012
09/28/2012
11/05/2012 11/14/2012 11/15/2012

158 ORDER granting (157) Motion for Extension of Time in case 2:10−cv−00644−EAS−MRA; granting in part and denying in part (68) Motion for Extension of Time in case 2:11−cv−00261−EAS−MRA; granting in part and denying in part (35) Motion for Extension of Time in case 2:11−cv−00415−EAS−MRA; granting (20) Motion for Extension of Time in case 2:12−cv−00070−EAS−MRA. Signed by Magistrate Judge Mark R. Abel on 9/12/12. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (sh1) (Entered: 09/12/2012)
159 NOTICE by Defendants Mark Barrett, Samuel Byrd, James Dishong, Doug Edgington, Franklin County Ohio, Michael Herrell, James Jodrey, Clayton Kern, Stephanie Klumpp, Stephan L. Martin, Sam Montrose, Zach Scott, Sheriff Franklin County, Christopher Starner, Geoffrey Stobart, Charles Williamson, Mark Barrett, Douglas Edgington, Robert Forino of video filing in Clerk's Office Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (Smith, Jeremy) (Entered: 09/28/2012)
160 Notice of Video Manually Filed In Clerk's Office of Exhibit B of Motion For Summary Judgment file by Defendants. (sr) (Entered: 09/28/2012)
161 AFFIDAVIT of Lieutenant Charles Williamson filed by Defendant Charles Williamson. (sr) (Entered: 09/28/2012)
162 NOTICE by Defendants Mark Barrett, Samuel Byrd, James Dishong, Doug Edgington, Robert Forino, Franklin County Ohio, Michael Herrell, James Jodrey, Clayton Kern, Stephanie Klumpp, Stephan L. Martin, Sam Montrose, Zach Scott, Sheriff Franklin County, Christopher Starner, Geoffrey Stobart, Charles Williamson of filing of Depositions (Smith, Jeremy) (Entered: 09/28/2012)
163 MOTION for Summary Judgment ( Responses due by 10/22/2012) by Defendants Mark Barrett, Samuel Byrd, James Dishong, Doug Edgington, Robert Forino, Franklin County Ohio, Michael Herrell, James Jodrey, Clayton Kern, Stephanie Klumpp, Stephan L Martin, Sam Montrose, Zach Scott, Sheriff Franklin County, Christopher Starner, Geoffrey Stobart, Charles Williamson. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit D−1, # 6 Exhibit D−2, # 7 Exhibit D−3, # 8 Exhibit D−4, # 9 Exhibit D−5, # 10 Exhibit D−6, # 11 Exhibit D−7, # 12 Exhibit D−8, # 13 Exhibit D−9, # 14 Exhibit D−10, # 15 Exhibit D−11, # 16 Exhibit D−12, # 17 Exhibit D−13, # 18 Exhibit D−14, # 19 Exhibit E) (Smith, Jeremy) Modified on 10/1/2012 to correct docket text. (pes1). (Entered: 09/28/2012)
164 NOTICE OF FILING DEPOSITION of Kern, Byrd, Quinn, Meyer, Dishong by Defendants Mark Barrett, Samuel Byrd, James Dishong, Doug Edgington, Robert Forino, Franklin County Ohio, Michael Herrell, James Jodrey, Clayton Kern, Stephanie Klumpp, Stephan L. Martin, Sam Montrose, Zach Scott, Christopher Starner, Geoffrey Stobart, Charles Williamson. (Attachments: # 1 Dishong, # 2 Kern, # 3 Meyer, # 4 Byrd, # 5 Quinn Depo, # 6 Quinn Errata) (Smith, Jeremy) (Entered: 09/28/2012)
165 ORDER directing Plaintiff Michael Reed to show cause within five (5) days of the date of this Order why he has not timely responded to Defendants' Motion for Summary Judgment. If Plaintiff Reed does not respond to this Order, the Court will decide Defendants' motion without benefit of any opposition. Signed by Judge Edmund A Sargus on 11/05/2012. (dh1) (Entered: 11/05/2012)
166 First MOTION for Extension of Time to File New date requested 11/28/2012. by Plaintiff Michael Reed. (Alo, Mohammed) (Entered: 11/14/2012)
167 ORDER granting 166 Plaintiff Michael Reed's Motion for Extension of Time, in which he requests additional time to respond to the defendants' motion for summary judgment. He is permitted to file his memorandum in opposition on or before 11/23/12. The defendants shall be permitted to reply pursuant to this Court's Local Rule 7.2. There shall be no further extensions granted on this briefing. Signed by Judge Edmund A Sargus on 11/15/2012. (dh1) (Entered: 11/15/2012)

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11/23/2012 12/07/2012
01/02/2013 01/02/2013 01/24/2013 02/06/2013 05/02/2013 05/13/2013 02/07/2014 03/07/2014 12/24/2015
12/28/2015

168 RESPONSE to 163 MOTION for Summary Judgment filed by Plaintiff Michael Reed. (Alo, Mohammed) Modified text on 11/26/2012 (er1). (Entered: 11/23/2012)
169 REPLY to Response to Motion re (163 in 2:10−cv−00644−EAS−MRA, 163 in 2:10−cv−00644−EAS−MRA, 163 in 2:10−cv−00644−EAS−MRA) MOTION to Appoint Expert MOTION to Substitute Party MOTION for Summary Judgment filed by Defendants Mark Barrett, Samuel Byrd, James Dishong, Doug Edgington, Robert Forino, Michael Herrell, James Jodrey, Clayton Kern, Stephanie Klumpp, Stephan L. Martin, Sam Montrose, Zach Scott, Sheriff Franklin County, Christopher Starner, Geoffrey Stobart, Charles Williamson. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (Smith, Jeremy) (Entered: 12/07/2012)
170 ORDER granting (163) Motion for Summary Judgment in case 2:10−cv−00644−EAS−MRA. Signed by Judge Edmund A Sargus on 1−2−2013. Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (glf5) (Entered: 01/02/2013)
171 NOTICE of Settlement by Plaintiffs Dawn Fiore−Bruno, Dawn Powell, Nicole Bradley, Dawn Fiore−Bruno, Frankie Mosley Associated Cases: 2:10−cv−00644−EAS−MRA, 2:11−cv−00261−EAS−MRA, 2:11−cv−00415−EAS−MRA, 2:12−cv−00070−EAS−MRA (Henry, Kristen) (Entered: 01/02/2013)
172 NOTICE OF APPEAL as to 170 Order on Motion for Summary Judgment by Plaintiff Michael Reed. Filing fee $ 455, receipt number 0648−3950069. (Alo, Mohammed) (Entered: 01/24/2013)
173 STIPULATION of Dismissal by Plaintiff Dawn Fiore−Bruno. (Henry, Kristen) (Entered: 02/06/2013)
USCA Case Number 13−3119 for 172 Notice of Appeal filed by Michael Reed. (er1) (Entered: 05/02/2013)
174 NOTICE by Defendant Samuel Byrd re 164 Notice of Filing Deposition, Corrected Filing (Attachments: # 1 Byrd Deposition) (Martin, Mary) (Entered: 05/13/2013)
175 ORDER of USCA as to 172 Notice of Appeal filed by Michael Reed (pes1) (Entered: 02/07/2014)
176 MANDATE of USCA as to 172 Notice of Appeal filed by Michael Reed. (sct1) (Entered: 03/07/2014)
177 Joint MOTION Terminate Consent Agreements by Defendants Mark Barrett, Shannon Beaudry, Jason Brobst, Marty Buechner, Samuel Byrd, Debra Cantrell, Nathan Coleman, Joshua Crosby, Ben Damschroder, Steven Dean, James Dishong, John/Jane Doe(s), Mark Eagan, Doug Edgington, Robert Forino, Franklin County Ohio, Andrew Giles, Amy Hanes, Michael Herrell, James Jodrey, Clayton Kern, Elizabeth Klein, Stephanie Klumpp, Nicholas Lapetina, Christopher Lee, Chris Leonard, Christopher Leonard, Stephan L Martin, Stephan L. Martin, Liz Mehl, Sam Montrose, Manley Morgan, Douglas Robinson, John/Jane Roe(s), Jonathan Roush, Zach Scott, Sheriff Franklin County, Derek Shively, Christopher Starner, Geoffrey Stobart, Lee Vandette, Daniel Waldren, Nicholas Williams, Charles Williamson, Curtis Winn. Responses due by 1/4/2016 (Soulas, Nick) (Entered: 12/24/2015)
178 ORDER granting 177 Motion Terminate Agreement Between the Sheriff of Franklin County Ohio and the United States of America and the Agreement Between Plaintiffs and Defendants. Signed by Chief Judge Edmund A. Sargus on 12/28/2015. (plb) (Entered: 12/28/2015)