RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 17a0247p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

VICTOR L. SMITH, 

Plaintiff-Appellant, 

v. 

CITY OF TROY, OHIO; MIAMI COUNTY, OHIO; P.M.

OSTING; S.A. GATES; H. HOHENSTEIN; C.A. MADIGAN, 

Defendants-Appellees. 

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No. 16-4719 

Appeal from the United States District Court 

for the Southern District of Ohio at Dayton. 

No. 3:15-cv-00054—Thomas M. Rose, District Judge. 

Decided and Filed: November 1, 2017 

 Before: COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Bryan K. Penick, Joseph E. Zeis, Jr., SEBALY, SHILLITO & DYER, Dayton, 

Ohio, for Appellant. Edward J. Dowd, Kevin A. Lantz, SURDYK, DOWD & TURNER CO., 

L.P.A., Dayton, Ohio, for Appellees City of Troy, Gates, Hohenstein, and Madigan. Daniel T. 

Downey, Paul M. Bernhart, FISHEL HASS KIM ALBRECHT DOWNEY LLP, Columbus, 

Ohio, for Appellees Miami County and Osting. 

_________________ 

OPINION 

_________________ 

 PER CURIAM. Victor L. Smith, represented by counsel, appeals the district court’s 

judgment granting summary judgment to the defendants on his claims under 42 U.S.C. § 1983 

and Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12132. The parties have 

>
No. 16-4719 Smith v. City of Troy, Ohio et al. Page 2

waived oral argument, and the panel unanimously agrees that oral argument is not needed. See

Fed. R. App. P. 34(a). 

 Smith has epilepsy. On the morning of February 11, 2014, he began experiencing a 

seizure while driving in Troy, Ohio. Smith steered his car into a yard located at 449 Glendale 

Avenue, exited the car, and walked a few houses away. A neighbor called the police to report 

that Smith was involved in suspicious activity. Miami County Deputy Sheriff Phillip M. Osting 

was the first to arrive at the scene. Osting observed Smith grasping a waist-high chain-link 

fence, swaying back and forth. Smith’s pants were down around his knees, revealing his white 

longjohns, and he was yelling out, “Baby.” Osting identified himself and asked Smith to return 

to his car to discuss the incident. Smith did not respond and kept yelling, “Baby.” Although it 

was cold, Osting noticed that Smith was sweating. Osting thought that Smith was under the 

influence of something by the way Smith was acting. Osting placed his hand on Smith’s right 

hand, which was grasping the fence, and his other hand on Smith’s back, and again asked Smith 

to return to his car. Osting felt Smith tense up, and so he began to peel Smith’s fingers from the 

fence. Once Osting pried Smith’s fingers from the fence, Smith pulled his arm away. Osting 

then took Smith to the ground with a leg sweep. Smith hit the ground facedown and Osting fell 

on top of him. 

Osting had control of Smith’s right arm and was struggling to gain control of Smith’s left 

arm. After Osting wrestled with Smith for 30 seconds to a minute, Troy Police Officer Scott 

Gates arrived on the scene. Gates drew his taser and ordered Smith to put his hands behind his 

back. Smith looked at Gates blankly but did not comply. Gates put his taser in drive-stun mode 

and tried to grab Smith’s left arm. Smith moved his arm underneath his body. Gates then 

applied the taser to Smith’s upper-back and lower-neck area. By that time, Troy Police Officers 

Hans Hohenstein and Chris Madigan had arrived on the scene and grabbed Smith’s legs, 

allowing Osting to gain control of Smith and handcuff him. The data recorder on Gates’s taser 

later showed that he had deployed it eight times, for a total of 48 seconds, during an encounter 

with Smith that lasted less than two minutes. None of the officers ever informed Smith that he 

was under arrest. 
No. 16-4719 Smith v. City of Troy, Ohio et al. Page 3

Smith testified that he drifted in and out of lucidity during the incident. He remembered 

the onset of the seizure, leaving the road, honking his horn for help, and exiting the car. He 

remembered trying to support himself on the fence, encountering Deputy Osting, telling Osting 

he was sick and having a seizure, and being taken to the ground. Smith did not remember 

struggling with the officers or being tased. Smith thought that he came out of the seizure when 

he was on the ground but then had another seizure and did not wake up until he was in an 

ambulance on the way to the hospital. Smith claimed that he has post-traumatic stress disorder 

as a result of the incident. 

Smith filed a complaint against the City of Troy; Miami County, Ohio; Deputy Osting; 

and Officers Gates, Hohenstein, and Madigan under § 1983 and under Title II of the ADA. 

Smith sued the individual law enforcement officers in their official and individual capacities, 

claiming that they violated his Fourth Amendment rights by using excessive force against him 

and by failing to intervene to protect him against the allegedly excessive force employed by the 

other officers. Smith claimed that the City of Troy and Miami County were responsible for their 

respective officers’ allegedly unconstitutional conduct under theories of ratification, negligent 

hiring and retention, and failure to train. Smith also claimed that the City of Troy’s and Miami 

County’s alleged failure to train its law enforcement officers properly on confronting and 

attending to persons with disabilities denied him the benefit of law enforcement services, in 

violation of Title II of the ADA. Finally, Smith asserted state-law claims against the defendants 

for assault and battery and for intentional infliction of emotional distress. 

The district court granted summary judgment to the defendants on Smith’s federal civil 

rights claims. As to Smith’s excessive-force claims, the district court concluded that the officers 

used measured force in response to Smith’s defiance of their orders and reaching where the 

officers could not see his hands. The district court held, therefore, that the officers did not use 

excessive force as a matter of law. The district court concluded further that even if the individual 

officers did use excessive force, they were entitled to qualified immunity under the facts of the 

case. The district court held that the municipal defendants could not be liable under § 1983 

without an underlying constitutional violation. The district court concluded further that Smith’s 

§ 1983 claims against the municipal defendants failed because he did not produce evidence of a 
No. 16-4719 Smith v. City of Troy, Ohio et al. Page 4

pattern of constitutional violations by their law enforcement officers. The district court granted 

the defendants summary judgment on Smith’s ADA claim because the officers did not take 

action against Smith because of his disability. After granting the defendants summary judgment 

on Smith’s federal claims, the district court declined to exercise supplemental jurisdiction over 

his state-law claims and dismissed them without prejudice. Smith’s timely appeal followed. 

We review de novo a district court’s order granting summary judgment. See Rose v. 

State Farm Fire & Cas. Co., 766 F.3d 532, 535 (6th Cir. 2014). Summary judgment is 

appropriate “if the movant shows that 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). A court reviewing a 

summary judgment motion must draw all reasonable inferences in favor of the nonmoving party. 

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

I. Individual Liability Under § 1983 

The Fourth Amendment prohibits law enforcement officers from using excessive force 

when making an arrest. See Smoak v. Hall, 460 F.3d 768, 783 (6th Cir. 2006). In order to 

comply with the Fourth Amendment, an officer’s use of force must be objectively reasonable 

under the totality of the circumstances. See Kent v. Oakland Cty., 810 F.3d 384, 390 (6th Cir. 

2016). In evaluating whether a police officer used excessive force on a particular occasion, the 

court must view the situation from the perspective of a reasonable officer on the scene at the time 

and without the benefit of 20/20 hindsight. See id. To determine whether the officer’s use of 

force was reasonable, the court must consider the severity of the crime at issue, whether the 

suspect posed a threat to the officers or others, and whether the suspect was actively resisting 

arrest or attempting to avoid arrest by fleeing. See id. 

A public official is entitled to qualified immunity and, thus, is shielded from suit under 

§ 1983 if his conduct does not violate a clearly established statutory or constitutional right of 

which a reasonable official would have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982). “The contours of the right must be sufficiently clear that a reasonable official would 

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 
No. 16-4719 Smith v. City of Troy, Ohio et al. Page 5

(1987). The official, however, is entitled to qualified immunity only for actions taken in 

objective good faith within the scope of his duties. See Harlow, 457 U.S. at 819 n.34. 

Determining a public official’s entitlement to qualified immunity involves a two-step 

inquiry. The court must determine whether the facts alleged, judged in the light most favorable 

to the party asserting the injury, show that the officer’s conduct violated a constitutional right. 

See Saucier v. Katz, 533 U.S. 194, 201 (2001). If no constitutional right would have been 

violated on the facts alleged, the inquiry stops at this point and the officer is entitled to qualified 

immunity. See id. If a violation can be made out based on a favorable view of the pleadings, the 

court must determine whether the right at stake was clearly established. See id. In making this 

determination, the court must rely on decisions from the United States Supreme Court, the Sixth 

Circuit Court of Appeals, or finally, the decisions of other circuit courts. See Walton v. City of 

Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993). Courts have discretion to decide in which order 

to address the two parts of the qualified-immunity analysis. See Pearson v. Callahan, 555 U.S. 

223, 236 (2009). 

Whether the right alleged to have been violated is clearly established and whether the 

official reasonably could have believed that his conduct was consistent with that right are 

questions of law for the court. See Walton, 995 F.2d at 1336. But if genuine issues of material 

fact exist as to whether the official committed acts that would violate a clearly established right, 

then dismissal of the claim is improper. See id. When a defendant raises qualified immunity as a 

defense, the plaintiff bears the burden of demonstrating that the defendant is not entitled to 

qualified immunity. See Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009). In order to deny 

public officials qualified immunity, “existing precedent must have placed the statutory or 

constitutional question beyond debate.” Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011). When 

more than one officer is involved, the court must consider each officer’s entitlement to qualified 

immunity separately. See Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 401 (6th Cir. 

2009). Finally, the court must segment the incident into its constituent parts and consider the 

officer’s entitlement to qualified immunity at each step along the way. See id. 
No. 16-4719 Smith v. City of Troy, Ohio et al. Page 6

A. Deputy Osting 

Viewing the record in the light most favorable to Smith, we conclude that Deputy Osting 

violated Smith’s right to be free from excessive force when he took Smith to the ground with a 

leg sweep and landed on top of Smith. There is little in the record to suggest that Smith 

committed any crime, even a minor one. There are factual disputes concerning whether Smith 

was involved in an automobile accident or whether he parked his car in the yard, and whether he 

left the scene of an accident or simply wandered away in a stupor due to his seizure. Smith 

claims that he told Osting that he was sick and having a seizure. In his incident report, Osting 

concedes that Smith was holding the fence to maintain his balance and that Smith told him that 

he was sick and needed to use the restroom. Osting did not state, either in his incident report or 

in his deposition testimony, that he believed that Smith presented a safety threat. 

Moreover, Osting never told Smith that he was under arrest, and there is a factual dispute 

as to whether Smith actually resisted Osting before Osting took him to the ground, or whether 

Smith merely failed to comply with Osting’s order to return to the car. It was well-established at 

the time of the incident in this case that a non-violent, non-resisting, or only passively resisting 

suspect who is not under arrest has a right to be free from an officer’s use of force. See Kent, 

810 F.3d at 396 (stating that it was clearly established in 2005 that a police officer cannot use 

force against a detainee who has been subdued, is not told that he is under arrest, and is not 

resisting arrest). A reasonable juror could conclude that, in pulling his arm away, Smith’s 

resistance was minimal and that Osting’s response in taking Smith to the ground was excessive. 

See Shreve v. Jessamine Cty. Fiscal Court, 453 F.3d 681, 687 (6th Cir. 2006) (holding that 

“passive” resistance does not justify substantial use of force). Viewing the record in the light 

most favorable to Smith, a reasonable officer in Osting’s position would have known that he 

would violate Smith’s right to be free from excessive force by using a leg sweep to force him to 

the ground. Accordingly, for purposes of summary judgment, we conclude that Osting violated 

Smith’s right to be free from excessive force by knocking him to the ground and then landing on 

top of him. Osting is not entitled to qualified immunity for this use of force. 

 Smith also has presented a genuine factual dispute regarding whether his failure to put 

one of his arms behind his back while lying face-down on the ground constitutes “resistance” 
No. 16-4719 Smith v. City of Troy, Ohio et al. Page 7

sufficient to justify forcible handcuffing by Osting. Significantly, at no point during the entire 

episode was Smith under arrest for any offense whatsoever. And, during his deposition 

testimony, Osting conceded that the mere failure of a citizen—not arrested for any crime—to 

follow the officer’s commands does not give a law enforcement official authority to put the 

citizen in handcuffs. If Smith indeed had committed no crime, if he was unarmed, and if no 

evidence was adduced that he posed a threat to himself or to others, Osting’s forcible 

handcuffing of him would be excessive and in violation of well-established constitutional 

principles. Osting thus also was not entitled to qualified immunity for his actions in this regard, 

especially given the fact that there is no evidence that Osting took Smith to the ground for any 

reason other than to handcuff him and restrain him forcibly. 

 Smith also claims that Osting failed to intervene to protect him from Officer Gates’s 

allegedly excessive deployment of the taser to subdue him. In order to establish a claim against a 

police officer for failing to intervene or for failing to protect him from another officer’s use of 

excessive force, the plaintiff must prove that the officer observed or had reason to know that 

excessive force would be or was being used and that the officer had both the opportunity and the 

means to prevent the harm from occurring. Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997). 

In this case, Osting was occupied trying to gain control of Smith’s arms while Gates was 

deploying the taser. Consequently, no reasonable juror could find that Osting had the 

opportunity and the means to prevent Gates from tasing Smith excessively. 

B. Officer Gates 

 Osting had already taken Smith down and was struggling to gain full control of him 

before Gates arrived on the scene. Gates therefore could not have prevented Osting’s initial use 

of force against Smith. Gates was justified in tasing Smith because Gates was unaware of what 

had transpired before his arrival on the scene and because Smith appeared to be resisting being 

handcuffed. See Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 509 (6th Cir. 2012). 

Smith, however, has presented evidence that Gates tased him for 48 seconds in less than two 

minutes and that, under the circumstances, Smith did not have sufficient time to comply with the 

officers’ commands to submit to handcuffing. It was clearly established at the time of the 

incident in this case that a police officer violates a suspect’s right to be free from excessive force 
No. 16-4719 Smith v. City of Troy, Ohio et al. Page 8

by repeatedly tasing the suspect without giving him a chance to comply with orders. See Kent, 

810 F.3d at 392 (holding that a police officer uses excessive force where the suspect could not 

have actively resisted police in between a rapid series of taser applications). Consequently, 

viewing the record in the light most favorable to Smith, we conclude that Gates’s repeated 

deployment of the taser on Smith was unreasonable and that Gates is not entitled to qualified 

immunity on this aspect of Smith’s excessive-force claim. 

C. Officers Hohenstein and Madigan 

 The record does not support an inference that Officers Hohenstein and Madigan violated 

Smith’s right to be free from excessive force or that they failed to protect him from the other 

officers’ allegedly excessive use of force. Like Gates, Hohenstein and Madigan arrived after 

Osting took Smith to the ground; therefore, they could not have prevented this use of force. 

Hohenstein and Madigan were trying to control Smith’s legs while Gates was deploying his 

taser. The record thus does not support a conclusion that they had a realistic opportunity to 

prevent Gates’s unreasonable deployment of his taser. Accordingly, we conclude that the district 

court correctly granted summary judgment to Hohenstein and Madigan on Smith’s excessiveforce claim. 

II. Municipal Liability Under § 1983 

 Smith claims that the City of Troy and Miami County are liable under § 1983 for their 

respective officers’ unconstitutional conduct under theories of ratification, negligent hiring and 

retention, and failure to train. However, a municipality cannot be held liable under § 1983 

simply because one of its employees violated the plaintiff’s constitutional rights. See Miller v. 

Calhoun Cty., 408 F.3d 803, 813 (6th Cir. 2005) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 

658, 690 (1978)). In other words, § 1983 does not impose respondeat superior liability on 

municipalities. See id. In order to impose § 1983 liability on a municipality, the plaintiff must 

prove that the constitutional deprivation occurred as a result of an official custom or policy of the 

municipality. See id. 

Smith cannot establish municipal liability under a failure-to-train theory because he has 

not shown that the municipal defendants “ignored a history of abuse and [were] clearly on notice 
No. 16-4719 Smith v. City of Troy, Ohio et al. Page 9

that [their] training [in the deployment of tasers and the proper use of force] was deficient and 

likely to cause injury.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citation omitted). 

Smith has not shown that the municipal defendants have demonstrated a pattern of inadequately 

investigating excessive force claims and, therefore, that they have a custom of tolerating the use 

of excessive-force by their officers. See id. Similarly, Smith has not shown that the municipal 

defendants’ allegedly inadequate investigation into his case, or their alleged post hoc ratification 

of the officers’ conduct, was itself a source of injury to him. See id. at 478-89. It appears that on 

appeal Smith has abandoned any claim that the municipal defendants negligently hired and 

retained the individual defendants by not advancing an argument in support of it in his merits 

brief. See United States v. Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006). In any event, Smith 

has not shown that the plainly obvious consequence of hiring and retaining these officers would 

be the deprivation of a third party’s federally protected rights. See Bd. of Cty. Comm’rs of Bryan 

Cty. v. Brown, 520 U.S. 397, 411 (1997). 

Accordingly, we conclude that the district court properly granted summary judgment to 

the municipal defendants on Smith’s § 1983 claims. 

III. Americans With Disabilities Act 

Smith also claims that the defendants denied him access to police services because of his 

disability, in violation of Title II of the ADA. In order to establish a Title II violation, the 

plaintiff must show that the defendants intentionally discriminated against him because of his 

disability. See Thompson v. Williamson Cty., 219 F.3d 555, 558 (6th Cir. 2000). In this case, 

even granting that the officers used excessive force against Smith, he has not shown that they 

intentionally discriminated against him because of his disability. Accordingly, we find that the 

district court correctly granted summary judgment to the defendants on Smith’s ADA claim. 

IV. Pendent State-Law Claims 

Because the district court dismissed all of Smith’s federal claims, it declined to exercise 

supplemental jurisdiction over Smith’s state-law causes of action. In light of our reinstatement 

of a number of federal claims raised in Smith’s complaint, it is possible that the district court 

now may wish to examine the state-law claims arising from the same operative facts. 
No. 16-4719 Smith v. City of Troy, Ohio et al. Page 10

The district court should have the opportunity on remand to determine anew whether to exercise 

its discretion under 28 U.S.C. § 1367(a). 

Conclusion 

For the reasons discussed, we REVERSE the district court’s judgment granting summary 

judgment to Deputy Osting on Smith’s claims that Osting used excessive force in taking him to 

the ground with a leg sweep and in handcuffing him forcibly; REVERSE the district court’s 

judgment granting summary judgment to Officer Gates on Smith’s claim that Gates excessively 

deployed his taser; and REVERSE that part of the district court’s judgment dismissing Smith’s 

pendent state-law claims. We AFFIRM the remainder of the district court’s judgment and 

REMAND this case to the district court for further proceedings consistent with this opinion.