NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a1056n.06 No. 11-5458 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

BRYAN F RODG E , TARYN P ENCE,

Plaintif fs-Appellants ,

v. CITY OF NEWP ORT, CITY OF NEWP ORT P OLICE DEPARTMENT, CHIEF ROBBIE K. HALL, L IEUTENANT PAU L MORG AN, CORP ORAL KU NK

EL, CORPORA L GENE SIMMONS, Defendants-A ppellees

. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FR OM T HE UNI TED STATES DI STRI CT COURT FOR T HE EASTERN DI STRI CT OF KE NTUCKY O P I N I O N

BEFORE: BOGG S and COLE, Circuit Jud ges; and OLIVE R, Distric t Judge. * SOL OMON OLIVER, JR., Chief District Judge. Plaintiffs-Appellants, Br y an Fr odg e (“F rodg e”) and Ta

ry n Pence ( “Pence ”) ( collectively , “Plaintiffs”), broug ht the instant c ase ag ainst Def endants-A

ppellees, the City of Newpor t (the “City ”), the City of Newpor t Police Depa

rtment, Robbie K. Hall (“H all”), individually and in his officia l capa city as the Chief of Newpor t Police, Paul Morg an (“Mor g an”) , individually and in his officia l capa city as a L ieutenant for th e City , Corporal Kunkel (“K

unkel”) , individually and in his officia l capa city as Police Corporal for the City , and Corporal Gre g Simm ons (“Simmons”), individually and in his officia l capa city as Police Offic er for the City (collec tively , the “De fenda nts”). Plaintiffs appea l the order of the district court g ranting

The Honora

ble Solomon Oliver, J r., Chief J udg e of the United States District Court for the * Norther n District of Ohio, sitting by desig nation.summary judgme nt on Plaintiffs’ fede ral claims ag ainst Simm ons for false arr est and excessive use

of forc e under 42 U.S.C. § 1983 and Plaintiffs’ fede ral claims ag ainst the City , the City Police Depa rtment, Hall, Morg an, and Kunkel for supervisory and municipal liability under § 1983, and dismiss ing Plaintiffs’ state law claims for b attery , neg lige nce, and malicious prosec ution ag ainst Simm ons. For the following rea sons, we AF F IRM the dec ision of the district court.

I. BACKG ROUND AN D P ROCEDURAL HISTORY

A. F actual Background On Saturday , May 31, 2009, Plaintiffs spent the evening with friends, cele brating Pence’ s birthday

. After dinner, the g roup went to the Rivers i d e M ar i n a, wher e Fr odg e had three beer s. There afte r, Plaintiffs beg an their drive home. Pence was d ri v i n g her new Mustang , with her windows rolled down. During this drive, Plaintiffs hear d a siren and Pence pulled her vehicle to the rig ht, allowing an ambulanc e to pass. When Pence was about to pull back into he r orig inal lane of trave l, a white vehicle drove past at a high rate of speed, narr owly missing Pence’ s vehicle. Pence honked her horn
at the vehicle and continued driving

. Eventually , the vehicle that sped past Plaintiffs slowed down, and Pence g ot into the left lane to p ass it. Once the vehicles wer e next to eac h other, the other vehicle stay ed even with Pence’ s vehicle long enoug h for its rea r passeng er, later identified as Robert Bur brink (“B urbrink”) , to scre am and curse at Plaintiffs. Bur brink also stuck both of his middle fing ers up at Plaintiffs, “flipping [t hem] off.” Plaintiffs responde d by flipping off Bur brink. Once Pence was ahea d of the white vehicle, she switched back into the rig ht lane so that the white vehicle

was behind her. She continued driving a short distance until she rea ched a stoplight at Third and Saratog a Streets, in front of Newpor t on the L evee . Be cause it was a Saturday night in the summer

2by Newpor t on the L evee , wher e there are a number of restauran t s , bars, and other enter tainment venues, the re w ere a number of people and vehic les in the are a. Whil e P laintiffs and Burbrink were stopped at t he st opligh t , Bur brink g ot out of t he white vehicle and approa ched t h e p asseng er side of Pence’ s Mustang , Fr odg e’s side. Bur brink was “cussing [and] y elling a bunch of profa nities” at Fr odg e, order ing him to g et out of the car . Fr odg e told Bur brink that he was a police office r, that Bur brink was supposed to y ield to an ambulance , and that he neede d to g et back into the white vehicle. Bur brink continued to try to g et Fr odg e out of the vehicle, threa tening to “slice [Frodg e] from ear to ear ” and g rabbing Fr odg e’s arm throug h the open window of P ence ’s ca

r. Howe ver, F rodg e re mained in the vehic le. B urbrink then kicke d the s ide of Pence ’s vehicle , stating, “ this will g et y ou out of the [vehicle].” The next events occur

red over approximately thi rt y seconds and primarily occur red in the
street. After Bur

brink kicked Pence’ s car , Fr odg e g ot out of the car , fea ring that Bur

brink may have

a knife. Bur

brink proce eded to immediately run at Fr odg e and kick him in the g roin. When Fr odg e leane d down, Bur

brink tried to kick him in the head, but the blow landed on Fr odg e’s rig ht shoulder instead. After witnessing this, Pence g ot out of the car . Bur brink came at Fr odg e ag ain, but Fr odg e hit him first. When Bur

brink fell back, he landed on Pence’ s shin/ankle. Pence told him to g et off of her and kicke d him off of he r shin/ankle. The fig ht caug ht the attention of two Ne wport police office rs, Patrolman Br uce Markus (“Ma rkus”) and Simmons, who were working an extra-duty secur ity detail, in full police uniform,
at the Hofbra

haus Restaura

nt acr oss the street. They wer e working in the restaur ant’s outdoor beer g arde n when they noticed several bar patrons looking at something a cross the stre et. The office rs observe d Fr odg e and Bur

brink fig hting on East Third Street. Simm ons testified that the first thing

3he saw was two men “g rabbing , g rappling and swing ing at eac h other.” Markus testified that the first

thing he saw was “fists fly ing, pushing and s hoving and fist throwing .” Upon observing this, Simm ons and Markus rac ed across t he st ree t. Simm ons pulled out his ASP baton, ex tended it as he approa ched, and y elled at Bur brink and Fr odg e to “knock it off.” Neither Simm ons nor Markus identified themselves as police office rs, but they wer e in full uniform. Simm ons observe d Bur brink and Fr odg e continue to strug g le and fall to the g round befor e the office rs rea ched them. Simm ons also saw Pence k i ck i n g o n e of the men. By this time, the white vehicle in which Bur brink was trave ling ha d left the a

rea . Simm ons testified that when he and Markus rea ched the men, both men wer e standing , althoug h Fr odg e testified that Bur brink was on the g round when the office rs arr ived. Acc ording to both Simm ons and Markus, the men continued to strug g le, and the office rs had to phy sically separ ate them to stop the fig ht. Be cause Fr odg e and Bur brink wer e “still locked onto eac h other,” Simm ons struck Fr odg e in the thigh with his ASP baton and took him to the g round. Simm ons maintains that when he attempted to place Fr odg e under arres t , h e an d Fr odg e fell off the side of the curb, and Fr odg e lande d abruptly

on the g round. Fr odg e’s acc ount of how he was hit with the baton differ s from that of Simm ons. He asser ts: [a few seconds afte r hitting Bur brink the] next thing I know, I ’m g etting hit–hit with something, lifted up off the g round and thrown down on my fac e, and then I ’m g etting ha ndcuff ed fr om the back, a

nd I ’m hear ing the F word y elled over and over

. . . . [T] hen I ’m hear ing, y ou know, police r adios and stuff. And at t his point now, I rea liz e its the cops. Fr odg e testi fied that P ence kicked B urbrink off of her leg at the same time that Frodg e was struck with the baton. Pence maintains that she did not see Simm ons g rab Fr odg e befor e hitting him with the baton, and that she saw Simm ons strike Fr odg e three times. Fr odg e testified that he was unsure

4if he wa s struck with the baton a fter he went to the g round. He testified t hat he has t hree scar s on

his leg from the incident but does not reme mber being struck more than once with the baton. He is

unsure when the other two blows may have occur red. After b ei n g h i t, he rec alled his arms being pulled behind him and an of fice r handc uffing him pretty quickly

. After the fig ht had ended and Fr odg e was on the g round, the office rs place d both men under

arr est, with Markus handcuf fing Fr odg e and Simm ons handcuf fing Bur brink. Fr odg e testified that, while he was on the g round, someone double-c linched his handcuf fs. Marku s ad mitted that he double-c l i n ch ed t h e handcuf fs, but testified that he did so in order to preve nt the handcuf fs from tightening during transport. Whil e Frodg e was handcuf fed, he told Markus that he was a C ovingto n p o l i ce office r and that Markus should g et Fr odg e’s wallet out so that he could see his police I D. Fr odg e explained to Markus that he was not r esisting, that he was a police off icer and that B urbrink had attacked him. Fr odg e also testified that he told Markus that Bur brink kicked his vehicle and asked Markus to look
at his vehicle to observe the damag e. Markus examined the vehicle and noticed there wa s s o m e damag e, but testified that he did not know h o w i t go t t h ere. At some point, Fr odg e overhe ard Markus telling Simm ons that Fr odg e was a Covington police office r, to which Simm ons responde d, “[f]uck him, i f we wer e over in Covington, we’ d be g oing.” Simm ons contends that he r eac ted in this manner beca

use he did not want to show any favor itism to a police office r out in the street, “in the middle of this mess with all these people.” During the time t h at Markus was handcuf fing Fr odg e, Pence was y elling at the office rs, telling them that they had the wrong g uy , and attempting to exp l ai n h er and Fr odg e’s side of the story

. Pence testified that Simm ons told her to “shut the F up” and later told her “[y ]ou need to shut

5the F up, or I ’m g oin g t o p i l e m o re char g es on y ou.” Fr odg e testified that he tried to calm Pence

down, and eventua lly she sat down on the curb. Howeve r, once backup officers arrived, they

arr ested Penc e. Simm ons testified that he did not immediately arr est Pence beca use he did not have another
set of handcuf

fs t o u s e on her. He testified that he was just try ing to keep her under control until backup arr ived. Simmons further testified that he told Pence that she neede d to be quiet, and that would be charg ed if she di d not stop y elling. Sim mons testified t hat P ence sat on the curb during

so m e o f Fr o d ge’s arr est and that she was quiet at times, but overa ll, she was animated. Markus

corr oborate d Simm ons’s observa tions, testify ing tha t Pence wa s y elling a nd scre aming

. Plaintiffs asser

t that Markus was the only office r to speak with them and that no other office r asked them any questions or investiga ted the events leading up to the alterc ation, ev en though Plaintiffs tried t o explain that they wer e only defe nding themselves an d t h eir property

. Howeve r, Kunkel, the supervisor on duty and the supervisor of Simm ons and Markus, testified that he arr ived

on the scene in response to Simm ons’s call for backup. Kunkel asser ted that he attempted to speak wi t h Plaintiffs reg arding the forc e Simm ons used, but Plaintiffs ref used to talk to him

. Ku n k el testified that when he asked Fr odg e whether he had any thing to say , Fr odg e just “looked at [Kunkel]

. Then he belche d and looked awa y .” Kunkel also testified that Fr odg e’s ey es wer e bloodshot and that he could smell alcohol on h i m . Kunkel st ated that when he opened the door of the pol ice car and tried to speak with Pence, she beg an scre aming profa nities at him and kicking her leg s. I n addition, Kunkel spoke wi t h Simm ons and Markus at t he scene, and later rece ived writt en st atements from both of them about the incide nt. Following his investigation, Kunke l drafte d a use of forc e report and conc luded that Simmons did not use excessive forc e.

6Ultimately , Bur brink, Fr odg e, and Pence wer e tran s p o r ted to the Campbell County Detention Center. They wer e all char g ed with disorderly conduct. Wit hin hours of thei r arr est, Plaintiffs posted bond and we re r elea sed. Plaintiffs went to trial in Marc h of 2009 and w ere acquitted. B. Pr ocedural History On May 4, 2009 , Plaintiffs filed suit in the United States District Court for the Easter n District of Kentucky ag ainst Def endants. Plaintiffs alleg ed the following claims ag ainst Simm ons:

1

state claims for battery , neg lige nce, and malicious prosec ution, and fede ral claims for excessive use of for ce, f alse a rre st, and Four

teenth Amendme nt D ue Proce ss violations under § 1983. Plaintiffs alleg ed the following fede ral claims ag ainst the City , the City Police Depa rtment, Hall, Morg an, and Kunkel: supervisory and municipal liability and Fourt ee n t h Amendment Due Process violations under §1983. The district court ref err ed the case to a mag istrate judge for prepa ration of a repor

t and

rec ommendation. On De cembe r 29, 2010, the mag istrate judge issued a Report and Recommenda tion, rec ommending that the district court deny all of Plaintiffs’ fede ral claims ag ainst Def endants and dismiss Plaintiffs’ state law claims. On Marc h 15, 2011, the United States District Court for the Easter

n District of Kentuc k y ad o p t ed the m ag istrate judge’ s finding s as i ts own and
enter ed judg ment in favor of Def endants. The mag istrate j u d ge rec ommended g ranting Simm ons’s Motion for Summary J udg ment beca us e s h e found no constitutional violations had occur red. The mag istrate judge found that Simm ons had not violated Plaintiffs’ rig hts under the Four th Amendment beca

use he had probable

cause to arr est Plaintiffs. The magistra te j udg e found t h at S immons had no objective evidence to

M ar kus was initially named as a defe ndant, but was dismiss ed in both his individ u al an d 1 officia l capa city , on Fe bruar y 25, 2010, throug h an ag ree ment with the parties.

7support Plaintiffs’ claim of self-de fense , and s i n ce Simm ons could not conclusively know t hat an

aff irmative defe nse applied, he had probable cause to arr est Plaintiffs. The mag istrate judge applied the “objec tively rea sonable” standard t o t h e excessive forc e claim stemming from the use of the ASP baton, and found that Simmons’s use of forc e “wa s rea sonable to end the alterc ation, subdue the parties, and take control of the situation.” The mag istrate judg e found tha t the excessive forc e claim based on Fr odg e being too tightly handcuf fed failed b ecause he did not maintain that he complained to e ither Markus or Simm ons, nor that he reque sted that the handcuf fs be loosened, as required b y t h e Six th Circuit for such claims. Be cause no constitutional violation occur red, the 2 mag istrate judge found it unnece ssary to analy ze Simm ons’s alterna tive arg ument that he had a qualified immunity

defe nse. The mag istrate judge noted th a t Pl a in ti f f s a s s e r te d a violation of their Four teenth Amendment due proce ss rig hts in their Complaint, but did not alleg e specific con d u ct o r violation other than those which serve d as the basis of their Four th Amendment claims. Be cause the S u p re m e C o u rt

rec og nizes the Four

th Amendment as the appro p ri ate vehicle for excessive forc e claims, the mag istrate judge found that she had alread y addre ssed t hose claims and that no further discussion

was war rante d. There fore , the ma g istrate judge conclude d that Def endants wer e entitled to summary judgme nt on this claim. The mag istrate judge found that Hall, Morgan , an d Kunkel wer e entitled to summary judgme nt on Plaintiffs’ claims of supervisory liability under § 1983. She conclude d that Plaintiffs’ claims for supervisory liability failed as a matter of law beca use Simm ons did not violate Plaintiffs’

The district court also noted that Markus was indisputably the office r who “over -tig htened” 2 Fr odg e’s ha

ndcuff s. Howeve r, as state d above, he was dismissed from this action. 8constitutional rig hts. To the extent Plaintiffs’ arg ument was based on a failure to train, ratification,

or a failure to investiga te, summary judgme nt was also appropr iate beca use Plaintiffs did not prese nt evidenc e suff

icient to g ive rise to super visor liability . The mag istrate judg e conside red Plaintiffs’ claim for f

ailure to e nforc e poli cies to be w aived be cause they did not arg ue it in their response to Def endants’ Motion. There fore , she conclude d, Plaintiffs’ supervisory liability claims failed in all respe cts, and De fenda

nts were entitled to summary judgme nt. The mag istrate judg e found tha t Plainti ffs’ § 1983 c laim for municipal liability ag ainst the City and S i m m o ns in his officia l capa city also failed. The magistra te j udg e found that there was 3

no underly ing constitutional violation to support Plaintiff’s claim for failure to establish or enfor ce adequate policies, “but even if there wer e, Plaintiffs fail to identify both the policy maker with final authority and the manner in which he violated t heir constitut ional rig hts.” Fur ther, the ma g istrate judge concluded that Plaintiffs failed to demonstrate that the City ’s Use of For ce policy was not

en fo rced. The mag istrate judge found that Plaintiffs’ arg ument that the City ratified Simm ons’s unconstitutional behavior by failing to investiga te failed beca use Plaintiffs did not identify the rele vant policy

making individual, “did not demonstrate that any municipal officia l expressly ap p ro ved of Simm ons’s conduct,” and did not “cite to any other occur renc e in whi ch unconstitutional actions wer e alleg edly ratified.” I n addition, the mag istrate j u d g e found that Plaintiffs faile d t o es t ablish a causa l link betwee n the alleg ed ratification and a constitutional violation. L astly , the mag istrate judge found that Plaintiffs’ arg ument that Simm ons was

The district court noted that althoug h Plaintiffs included the Newpor t Police Depa

rtment as 3 a defe ndant to this lawsuit, a police depart m en t i s not an entity which may be sued; rathe r the municipality is the proper party

. There fore , Plaintiffs’ § 1983 municipal liability claim could only be asse rted a g ainst the City

. 9inadequa tely trained also failed beca use Plaintiffs did “no t e xplain in what manner the City ’s training prog ram, or Simm ons’s traini n g s p ec ifically , was inadequa te, nor provide evidenc e of rec urring

co m p l aint s or any other complaint of constitutional violation.” Be cause the mag istrate judge dismiss ed Plaintiffs’ fede ral claims, she rec o mm e n d e d th a t the district court decline jurisdiction over Plaintiffs’ state law c laims and dismiss t hem without prejudice

. On April 13, 2011, Plaintiffs timely appea led the district court’s order

. They arg ue that the district court erre d in its ruling reg arding whether probable cause exis ted, whether S immons used excessive forc e, whether Plaintiffs maintained a claim ag ainst Hall, Morg an, and Kunkel under the theory of supervisory liability , whether Plaintiffs maintained a claim for municipal liability ag ainst the City , and whe ther the state law cla ims should be dism issed. II. ST ANDAR

D OF REVIEW A court of appea ls revie ws a district court’s g rant of summary judgme nt de novo . Mazur v. Y oung , 507 F.3d 1013, 1016 (6th Cir. 2007). Summary judgme nt is appropr iate wher e “ther e is no g enuine dispute as to a

ny materia l f

act and the movant is e ntitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56(a). As the moving parties, Defenda nts bear the burden of showing t he absence of a g enuine issue of materia l fac t as to at least one essential element on eac h of Plaintiffs’ claims. See Celotex Corp. v. Catrett , 477 U.S. 317, 324 (1986). Plaintiffs, as the non-moving parties, must then present sufficie nt evid en ce from which a jury could reasonably find for them. See Anderson

v. Liberty Lobby, Inc ., 477 U.S. 242, 252 (1986). The co u rt must then deter mine “whe ther the evidenc e prese nts a sufficie nt disa g ree ment to r equire submissi on to a jury or whether it is so onesided that one party must pre vail as a matter of law.” Id. at 251-52. I n making this de termination,

10the court must dra w all rea sonable infere nces in f avor of the non-moving party

. See Nat’l Enters., Inc. v . Smith , 114 F.3d 561, 563 ( 6th Cir. 1997). III. LAW AND ANALYSIS A. P laintif

fs’ § 1983 Claims Against Sim m ons (in h is Ind ividu al Capacity) Pla i n t i ffs asser

t claims ag ainst Simm ons under 42 U.S.C. § 1983. A claim under § 1983 require s a plaintiff to provide fac ts that, when construed in his favor , establish “(1) the depriva tion

o f a rig ht secur ed by the Constit ution or laws of the United States (2) cause d by a person ac t i n g under the color of state law.” Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009). Plaintiffs alleg e that their constitutional rig hts wer e violated beca use they wer e falsely arr ested and Fr odg e wa s subjected to excessive use of for ce. 1. False Arrest Claims I n order for a plaintiff to preva il on a theory of wrong ful arr est under § 1983, he must prove that the police lacke d probable cause . Painter v. Robertson , 185 F.3d 557, 569 (6th Cir. 1999). The Four th Amendment provides that “[t] he rig ht o f the people to be secur e in their persons, houses, p ap ers, and eff

ects, ag ainst unrea sonable sear ches and seizures, shall not be violated, an d n o Warrants shall issue, but upon probable cause . . . .” U.S. C O N S T . amend. I V. A plaintiff’s Four th Amendment rig hts are not violated if an office r does not have an arr est war rant so long as “proba

ble

cause exis ts for the arr esting office r’s belief that a s u s p ec t h as violated or is violating the law.” Criss v. City of

Kent , 867 F.2d 259, 262 (6th Cir. 1988). Probable cause is deter mined by the totality of the circ umstances and from a rea sonable law enfor ceme nt office r’s on-sce ne perspe ctive. United States v. Craig , 198 F. App’x 459, 462 (6th Ci r. 2006); Klein v

. Long , 275 F.3d 544, 550 (6th Cir. 2001). Probable cause “mea ns fac ts and circ umstances within the office r’s knowledg e that are

11sufficie nt to war rant a prudent pers on, or one of rea sonable caution, in believing , in the circ umstances shown, that the suspect has committed, is comm i t ting, or is about to commit an

o ff en s e.” Estate of Dietrich v. Burrows , 167 F.3d 1007, 1010-11 (6th Cir. 1999). Under this “fle x ible, common-sense standard,” Texas v. Brown , 460 U.S. 730, 742 (1983), the establishment of probable cause require s only “a ‘fa ir probability ’ that th e individual to be arr ested has either committed or intends to commit a crime.” Fridley v. Horrighs , 291 F.3d 867, 872 (6th Cir. 2002) (i nterna l citation omitted). Mere specula tion that a crime occur

red is insufficient to estab l i s h probable cause . See M

cCurdy v. M

ontgomery Cnty., Ohio , 240 F.3d 512, 519 ( 6th Cir. 2001). Howeve r, this court has stated that “[o] nce probable cause is established, an office r is under

no duty to investiga te further or to look for additional evidenc e which may exculpate the acc used.” Ahlers v. Schebil , 188 F.3d 365, 371 (6th Cir. 1999). Neve rtheless, “an office r cannot look only at the evidenc e of g uilt while ignor ing all exculpatory evidenc e. Rather, the office r must consider the
t o t al i t y of the circ umstances, rec og nizi ng both the inculpatory and exculpatory evidenc e, before deter mining if he has probable cause to make an arr est.” Gardenhire v. Schubert , 205 F.3d 303,318 (6th Cir. 2000). Howeve r, when a suspect asser ts an aff irmative defe nse, this does not automatically vitiate probable cause . The officer is not require d to acc ept t he ex planation wit hout question, but

a police office r “may not ignor e information known to him which proves that the suspect is protec ted by an aff irmative leg al justification.” Fridley , 291 F.3d at 873 (interna l quota tion mar ks omitted). On t h e other hand, “[e]ven if the circ umstances sug g est that a suspect may have an aff irmat i v e defe nse, if a r easona

ble officer would not ‘conc lusively know’ that the s uspect is protected by the defe nse, then [t he office r] is fre e to arr est the suspect provided there is probable cause to do so.” Id

.

12Markus and Simm ons arr ested P laintiffs for disorderly conduct be cause of their fight with

Bur brink. Under

the Kentuc ky

Revised Statutes, a per son is guilty of this offense when in a public place and with intent to cause public inconvenienc e, annoy ance , or alar m, or wantonly

cre ating a risk ther eof, he : (a) Eng ag es in fig hting or in violent, tumul tuous, or threa tening behavior ; Ky

. Rev. Stat. § 525.060(1). Plaintiffs do not dispute the fac t that they wer e in a public place or that they wer e fig hting. They arg ue that probable cause was lacking beca use of their aff

irmative defe nse of self-defe nse. Plain t i ff s as s er t that Simm ons should have known that they wer e only defe nding their proper

ty and that beca

use damage t o the car corr oborate d their story , there was no probable

cause to arr est them. Plaintiffs maintain that the interviews of Simm ons and Markus, conducte d by
t h e P rofessional Compli ance Boa rd of the Covington Police Depa rtment, demonstrate that th e office rs ag ree d that they would have done the same thing if they wer e in Plaintiffs’ situat i on, and further support their ar g ument that probable cause did not ex ist. We hold that Simm ons had probable cause to arr est Plaintiffs. I n order for Simm ons to have probable cause , he only neede d a “fa ir p ro b ab i lity ” that Plaintiffs wer e eng ag ed in disorderly conduct, and he could not “conc lusively know” that Plaintiffs had validly asser ted an aff irmative defe nse. I t is undisputed that when Simm ons first observe d the incident with Plaintiffs and ran

acr oss the street, Bur

brink and Fr odg e wer e fig hting in the street, a fig ht that commence d while the

car s in which they wer e riding wer e stopped at a traff ic light. Fr odg e admits to hitting Bur brink and Pence admits to kicking Bur brink. Fur

ther, it is undis puted that the fig ht occur red on a Saturday night in a well-populate d are a. For the rea sons which fol low, the court conclude s that there was probable cause to arr est Plaintiffs for disorderly conduct. First, the fig ht occur red in a public place

. Second, the conduct involved demonstrated that the parties intended to cause public inconvenienc e,

13annoy ance , or alar m, or that they wantonly cre ated a risk there of. Finally , Plaintiffs wer e involved in fig hting. Th e p ar t i es d i s p ute the point at which the fig ht ended, but do not dispute that a fig ht

occur red, which Sim m o n s o bserve d. Plaintiffs and Simm ons’s acc ounts establish that probable

cause exis ted for Plaintiffs’ a rre sts. Howeve r, Plaintiffs counter that their asser tion of the af

fi rm at ive defe nse of self-de fense should have prec luded Simm ons from arr esting them. Plaintiffs arg ue that Simm ons did not cre dit their asser

tion that they only foug ht B urbrink beca use he had damag ed the Mustang and they wer e defe nding the ir proper

ty

. Plaintiffs contend that Simm ons did not ask t hem t heir side of the story and did not consi der the damag e to their car . This court has held that “[w]here the police have sufficie nt inculpatory ev i dence to g ive rise to a deter mination of probable cause and they do not know of any exculpatory evidenc e, . . .‘the failure to make a further investiga tion does no t n egate probable cause .’” Klein , 275 F.3d at 552 (quoting Coogan v. City of W ixom , 820 F.2d 170, 173 (6th Cir. 1987)). As discussed above, Simm ons had probable cause to arr est Fr odg e. Simm ons was not

awa re of any aff

irmative defe nse of self-de fense un t i l afte r Fr odg e had been arr ested. Thus, this defe nse did not neg ate the finding of probable cause as to Fr odg e. Pence, on the other hand, was

arr ested afte r Simm ons was awa re that she was asser

ting an aff

irmative defe nse. Howeve r, there is

no evidenc e that would have enable d Simm ons to “conc lusively know” that Plaintiffs wer e protec ted by their claim of self-de fense

. Simm ons only observe d the fig ht after Bur brink had kicked the car . Thoug h Markus looked at t he Must ang for damag e and could s ee some damag e to the car, h e had

no way of knowing whether this was cause d by Bur brink as Fr odg e had alleg ed. Thus, even though Simm ons was awa

re that Plaintiffs wer e asser ting this defe nse at the time of Pence’ s arr est, beca use

14he could not “conc lusively know” it was validly asser ted, Simm ons had probable cause to arr est Pence. Plaintiffs asser

t that Dietrich and Gardenhire are analog ous to their case and require Simm ons to acc ept their aff irmative defe nse. Howeve r, these case s are rea dily distinguishable since, i n t h ose case s the police office rs wer e able to verify information, prior to arrest , that vitiate d t h e office rs’ finding of probable cause , but proce eded to arr est the plaintiffs nonetheless. See Dietrich , 167 F.3d at 1011; Gardenhire , 205 F.3d at 316. Her e, Simm ons was unable to veri fy P l aintiffs’ claims of self-de fense prior to arr est. There was no evidenc e available to Simm ons to demonstrate that they had justifiably

acte d in self-de fense

. Plaintiffs also arg ue that the mag istrate judge err ed in analy zing probable cause beca

use she failed to “view all fac ts and d ra w al l reasonable infere nces in [t he] light most favor able to nonmoving party as re quired under Fe d. R. Civ. P. 56(a) .” Whil e the district court must deter mine a motion for summary judgme nt vie wing the fac ts a nd draw ing all rea sonable infere nces in the light
most favor able to the non-moving party , the district court must do so based on the rec ord befor e it, and not based on the parties’ arg uments that are contra ry to the rele vant portions of the re co rd. Plaintiffs attempted to oppose Simm ons’s Motion for Summary J udg ment with ma terials from the investiga tion conducte d by the Covington Police Depa rtment’s Profes s i o n al Compli ance Review Boa rd. They seek to use those same materia ls to support their instant appea l. The conclusion rea ched by the Covington Police Depa rtment–that Fr odg e had eng ag ed in se lf-def ense–doe s not neg ate the probable cause finding made at the scene by the office rs. I n addition, statements made by Simm ons and Markus to the Covington Police Depa rtment Professional Compli an ce R ev i ew Boa rd in interviews, that they would have done the same thing had they been in the Plaintiffs’ position, also

15do not neg ate the probable cause finding made at the scene by the office rs . P ro b able cause is

deter mined by the totality of the circ umstances and from a rea sonable law enfor ceme nt office r’s onscene perspe ctive. Craig , 198 F. App’x at 462. Any conclusions rea ched by the Covington Police Depa rtment afte r the incide nt, have no be aring on whether

or not Simm ons lacke d probable cause at the t i m e o f P l ai n tiffs’ arr ests. There was no evidenc e that would have allowed Simm ons to conclusively know P laintiffs had validly asser ted t he affirmative defense o f s el f- d efe nse. I n light of the testimony of Simm ons, Markus, and Plaintiffs, we hold that Simm ons had probable cause to

arr est Plaintiffs for disorderly conduct. The facts were “sufficie nt to war rant a prudent person, or

one of rea sonable caution, in believing , in the circ umstances shown” that Plaintiffs had eng ag ed in disorderly conduct. Dietrich, 167 F.3d at 1010-11. There fore , no constitutional violation occur red, and this court af

firms the district court’ s judgme nt in favor of Simm ons. 2. Exc essive F

orce Claims Fr o d ge as s erts that Simm ons used excessive forc e by hitting him with the ASP baton and

over- tightening his handcuf fs. The court will addre ss eac h instance of alleg ed excessive use of forc e separ ately

. a. ASP Ba ton The appropr iate standard to use in analy zing an excessive forc e claim broug ht under §1983 “is deter mined by identify ing the specific constitutional rig ht infring ed by the challeng ed application of forc e.” Lusti

g v. Mondeau , 211 F. App’x 364, 369 (6th Cir. 2006) (citing Graham v. Conner , 490 U.S. 386, 393-94 (1989)). All claims t h at pol ice officer s used ex cessive force in the course of an

arr est should be analy

zed under the Four

th Amendment and its “objec tive rea sonablene ss” standard. Graham , 490 U.S. at 395. Under this standard, the court must take into consideration the totality of

16the circ umstances. Id

. at 397. I n apply ing the objective rea sonablene ss test, the court is require d to

pay “ca ref ul attention to the fac ts and circ umstances of eac h particula r case , including [1] the

sever ity of the crime at issue, [2] whether the suspect poses an immediate threa t to the safe ty of the offi ce rs o r others, and [3] whether he is actively resisting arr est or attempting to evade arr est by flig ht.” Id

. at 396. Fur

thermore , the test of the “re asonable ness” of a particula r use of forc e by law enfor ceme nt is objective, and “must be judged from the perspective of a re asonable office r on t he

scene , rathe r t han with the 20/ 20 vision of hi ndsight.” Id

. This court has stated t hat i t should not substitut e its own ideas in reg ard to what is “prope r police proce dure for the instantaneous decision of the office r at the scene .” Boyd v. Baeppler , 215 F.3d 594, 602 (6th Cir. 2000). I n addition, “[t] he calc ulus of rea sonablene ss must embody allowanc e for the fac t that police office rs are often forc ed
to make split-second judgme nts–in circ umsta n ces that are tense, uncer tain, and rapidly evolving –about the amount of f orce that is ne cessa

ry in a particula

r situation.” Graham , 490 U.S.
at 396-97. The Supreme Court has stated that a mistaken belief may still be a rea sonable belief, and the fac t that it turned out to be mistaken does not undermine its rea sonablene ss as considere d at the time of the acts. See Saucier v. Katz , 5 3 3 U. S. 194, 205 (2001), overruled on other grounds by Pearson v. Callahan , 555 U.S. 223 (2009). Plaintiffs, there fore , neede d to show that Simm on s ’s u s e of forc e was objectively

unrea sonable. The mag istrate judge found that Simm ons’s use of forc e was objectively rea sonable. Ba sed on the testimony o f P l ai n t iffs, Markus, and Simm ons, the totality of the circ umstances demonstrate that Simm ons’s use of the baton was objectively rea sonable. Whil e two of the Graham fac tors may not support the use of forc e, the rema ining fac tor weig hs heavily in favor of Simm ons’s use of f orce being rea sonable.

17The first fac tor is the sever ity of the crime. Graham , 490 U.S. at 396. The crime at issue was

disorderly conduct, which is not a particula rly sever e crime. There fore , this fa ctor doe s not weig h in favor of

Simm ons’s use of f

orce being rea sonable. The second fac tor is “whe ther the suspect poses an immediate threa t t o the safe ty of the office rs or others.” Id

. Plaintiffs wer e fig hting with Bur brink and, there fore , they posed a threa t to at least one another

. I t is indisputable that at l east rig ht befor e the office rs arr ived, Fr odg e was fig hting Bur

brink. Fr odg e arg ues, in his brief, that the fig ht had ended when he was struck wi t h Simm ons’s baton and, thus, the forc e Simm ons used was unreasonable. Howeve r, Fr odg e’s testimony does not support this asser tion. Specifica lly , Fr odg e arg ues in his b ri ef that “[w]i th Bur brink on the g round and the fig ht over, [Frodg e] was then g rabbe d and struck multipl e times from behind.” F rodg e supports this assertion with a c itation to his interview w ith the Covington Police Department Professional Compli ance Boa rd. I n his deposition, Fr odg e testified that he pun ch ed 4 Bur brink, and that as he started to spin to the g round, the next thing he knew he was being hit with something. Fr odg e testified that he felt a strike to his leg within seconds of throwing the punch. He also observe d that while Burbrink was falling to the ground, P ence kicked him. There for e, b ased

on Fr odg e’s deposition testimony , the fig ht had not completely ended at the time the office rs rea ched the fig ht a

nd when the baton was used. Fur thermore , as Plaintiffs’ deposition te stimony indicates, it was a Saturda

y night, lots of people wer e in the are a, and the fig ht oc curr ed in or near the stree t,

Whil e Fr odg e points to his J une 5, 2008, interview with the Covington Police Depa rtment 4 Professional Compli ance Boa rd, wherei n h e i n dicates that the fig ht was not ong oing at the time Simm ons hit him with the baton, that statement is not admissible under Fe d. R. Evid. 801(d)( 1)(B ) as Plaintiffs arg ue. Although Plaintiffs contend that the district court did not addre ss this issue, the district court’s ruling can be rea d as implicitl y ruling on this issue, since the mag istrate judge found the fig ht to still be ong oing at this point based on Fr odg e’s J anuar y 21, 2010, deposition testimony

.
18while the vehicles wer e stopped at the light. Simm ons testified that he first called out to the parties

to “knock it off,” but that his war ning was not heede d. Th u s , i t wo u l d h ave been espec ially

nece ssary for Simm ons and Markus to respond quickly to brea k up the fig ht. Simm ons testified that afte r he used his baton, the fig ht ended, d em o n strating that the forc e serve d its proper purpose. Be cause the parties wer e fig hting one another , there was a threa t to eac h other and, g iven the highly populated are a, possibly to others as well. There fore , it was essential that the fig ht be broug ht to an end as quickly as possi b l e. Consequently , this fac tor weig hs in favor of Simm ons’s use of forc e being rea sonable. The third fac tor is whether the suspect “is actively res i s t i n g ar rest or attempting to evade

arr est by flig ht.” Graham , 490 U.S. at 396. Whil e it is clea r that Fr odg e and Bur

brink did not stop fig hting despite unref

uted testimony that Simm ons, in full police u n i fo rm , told them to “knock it off,” there is no evidenc e that they wer e resisting arr est or attempting to evade by flig ht at that time. Although Plaintiffs arg ue there are sever al analog ous ca s es that demonstrate the use of forc e was

unrea sonable when arr esting plaintiffs for fairly minor crimes, these case s are easily distinguishable,

as none of them involve incidents wher e the plaintiff was eng ag ed in a fig ht, essentially in the street, in a highly populated are a. I n addition, the forc e used in those case s was much g rea ter than that used i n t h e instant case . See Grawey v. Drury , 567 F.3d 302 (6th Cir. 2009) (finding that a p o l i ce office r’s pepper spray ing of the pl aintiff when he was walking awa y from the office r, but was not under arr est, amounted to excessive forc e); Solomon v. Auburn Hills Police Dept. , 389 F.3d 167 (6th Cir. 2004) (finding arre sting officer ’s actions could ha v e am o u n ted t o excessive force because he twisted and g rabbe d the plaintiff’s arm with enoug h forc e to fra cture it in sever al place s even though she was not a flig ht risk and had followed office r’s order s); Landis v. Bake r , 297 F. App’x 453 (6th

19Cir. 2008) (finding police office rs used excessive forc e in detaining arr estee wher e office rs used at

least ten strikes of a baton when arr estee was not actively resisting arr est, then tasere d arr estee four times ove r just a few seconds and held arr estee ’s fac e submerg ed in w ater for at least ten to f ifteen seconds, a

nd arr estee ultimately

died). Thus, these case s are inapposite. A revie w of the totality of the circ umstances demonstrates that Simm ons’s use of forc e was

rea sonable. Given that Si mm o ns and Markus observe d Plaintiffs actively fig hting with Bur brink and neede d to quickly brea

k up the fig ht, the use of the baton was rea sonable. There is no evidenc e that the bato n wa s used with such forc e as to cause serious injury to Fr odg e. Fr odg e also asser ts that taking him to t h e gro u n d and twis ting his arm behind his back also amounted to excessive force. Howeve r, Simm ons testified that he took Fr odg e to the g round in the proce ss of brea king up the fig ht and falling off the curb. Under the circ umstances, it was rea sonable for Simm ons to twist Fr odg e’s

arm behind his back and take him to t h e ground in Simm ons’s eff orts to end the fig ht and place Fr odg e under arr est. As the Graham court indicated, “[t] he calc ulus of rea sonablene ss must embody allowanc e for the fac t that police offic ers are often forc ed to make split-second judgme nts–in circ umstances that are tense, uncer tain , an d ra p i d ly evolving –about the amount of forc e that is

nece ssary in a particula

r situation.” 490 U.S. at 396-97. Fur ther, the rea sonablene ss of Simm ons’s actions “must be judge d from the perspe ctive of a rea sonable office r on the scene , rathe r than with the 20/20 vision of hindsight.” Id

. at 396. Taking into acc ount the parties’ failure to respond to his command to “knock it off,” and g iven the location of the fig ht, it was re asonable for Simm ons to employ some forc e i n o rd er t o b ri ng the fig ht to an end. There fore , no constitutional violation

occur red, a nd this court aff

irms the district court’s judg ment in favor of Simm ons.

20b. Tig ht Handcuf fs This court has stated that in order to rea ch a jury on a claim of tight handcuf fing , “a plaintiff
must offe r sufficient evidenc e . . . that: (1) he o r s he complained the handcuffs were too tight; (2) the office r ignor ed those comp l ai n t s ; and (3) the plaintiff experience d ‘some phy sical injury ’ resulting from the handcuf fing .” Morrison v. Bd. of Trs. of Gree n Twp. , 583 F.3d 394, 401 (6th Cir. 2009). The mag ist ra t e judge found that Fr odg e did not maintain that he complained that his handcuf fs were too tight or that he suffe red some phy sical injury from the handcuf fing

. Plaintiffs have not ref

uted this finding

. There fore , beca use Plaintiffs have failed to demonstrate these elements, this court a ffirms the district cour t’s judgme nt in favor of

Simm ons. B. Plaintiff

s’ § 1983 Sup ervisor y Liab ility Claims A gainst Hall , Morgan, and Kunkel Plaintiffs arg ue that Hall, Morg an, and Kunkel are liable for constitutional violations, alleg edly committed by Simm ons, based on a theory of supervisory liability

. The mag istrate judge found Def

endants wer e entitled t o s u m m ary judgme nt on these claims beca use under any of the theories a sserted by

Plaintiffs, their claims failed. This court held in McQ ueen v . Bee cher Cmty. Sc hools , 433 F.3d 460, 470 (6th Cir. 2006), that “a prer equisite of supervisory liability under § 1983 is unconstitutional conduct by a subordinate of the supervisor.” I n order to show supervisory liability , a plaintiff must “show that the [supervisor]
at least implicitl y authorized, approve d, or knowing ly acquie sced in the unconstitutional conduct of the offe nding office rs.” Shehee v. Luttr ell , 199 F.3d 295, 300 (6th Ci r. 1 9 9 9 ) (q u o t ing Hays v. Jefferson Cnty , Ky ., 668 F.2d 869, 874 ( 6th Cir. 1982)). The c ourt also stated that, “a supervisory officia l’s failure to supervise, c ontrol or train the of fending individual is not actionable unless the supervisor ‘either encour ag ed the specific incident of misconduct or in some o t h er wa y direc tly

21participa t ed i n i t

. ’” Id

. at 300 (quoting Hays , 668 F.2d at 874); see also Cardinal v. Metrish , 564

F.3d 794, 802-03 (6th Cir. 2009) (“We have held that, even if a plaintiff can prove a violation of his constitutional rig hts, his § 1983 claim must fail ag ainst a supervisory officia l unless ‘the supervisor

encour ag ed the specific incident of misconduct or i n some other way direc tly participa ted in it.’”) (quoting Combs v. W

ilkinson , 315 F.3d 548, 558 ( 6th Cir. 2002)). The mag istrate judge found that Plaintiffs’ claims of supervisory liability failed as a matter of law beca

use she deter

mined that Simm ons did not violate Plaintiffs’ constitu t ional rig hts. Be cause this court also finds there wer e no constitutional violations, Plaintiffs’ claims fail as a matter of law. N e v e r

th e le s s , e v e n if Si mm o n s had violated Plaintiffs’ constitutional rig hts, their supervisor y liability claims would still fail. Plaintiffs arg ue that Hall, Morg an, and Kunkel ratified Simm ons’s conduct by failing to investiga te the incident and failing to discipline Simm ons for making an invalid

arr est and using excessive forc e. This is insufficient to make supervisors lia b l e fo r their subordinates’ conduct. Plaintiffs must pre sent evidenc e that Hall, Morg an, and Kunkel “did more than play a passive role in the alleg ed violation

. . . . Supervisory liability under § 1983 cannot attach wher e the alleg ation of liability is based upon a mere failure to act.” Bass v. Ro b i n s o n , 1 6 7 F.3d 1041, 1048 (6th Cir. 1999). Her e, the claims asser

ted, failure to disci p l i n e an d failure to act, do not constitute “ac tive constitutional be havior” as require d and thus, are not a ctionable. Id

. Fur ther, Kunkel did c onduct an investig ation. Howeve r, eve n an inade quate investiga tion is still insufficient to trig g er liability beca use a supervisory liability claim “ca nnot be based on simple neg lige nce.” Leach v. Shelby Cnty. Sheriff , 891 F.2d 1241, 1246 (6th Cir. 1989). I n addit ion, there is no claim by Plaintiffs that the

22failure to investiga te was part of an ong oing pattern by Kunkel. I n any event, Kunkel’s investiga tion had no bear ing o n the alleg ed violation of Plaintiffs’ rig hts, as Plaintiffs have asser ted claims for false a rre st and excessive use of forc e, that occ urre d prior to the investiga tion. Thus, Hall, Morg an, and Kunke l d id not eng ag e in any conduct that violated Plaintiffs’ rig hts, and Plaintiffs failed to state a claim for supervisor liability based on ratification. Consequently , this
court a ffirms the district cour t’s judgme nt in favor of

Hall, Morg an, and K

unkel. C. P laintif

fs’ § 1983 Mun icipal L iabil ity Claim s Against the City of Newp ort and S im m ons (in h is Of fi cial Capacity) Plaintiffs asser

t the fol l o wi n g t h re e bases for their municipal liability claims: (1) the City failed to establish or enfor ce policies; (2) the City ratified Simm ons’s unconstitutional behavior ; and (3) the City inadequa tely trained Simm ons. The mag istrate judge found that Plaintiffs’ claims failed under all three theories. Howeve r, on appea l, Plaintiffs only arg ue that it was an err or to deter mine that they could not maintain a claim for municipal liability based upon a failure to adequately train. Specifica lly , Plaintiffs arg ue that the City is liable under § 1983 municipal liability beca use the City failed to adequat el y train its office rs as demonstrated by Simm ons’s testimony that he does not alway s announce that he is a police office r and K unkel’s fa ilure to investigate. To preva il on a claim ag ainst a muni cipa l i t y u nder § 1983, a plainti ff must establish both: (1) the de privation of a constitutional rig ht; a nd (2) the city ’s responsibility for that violation. See Howard v. City of Girard , 346 F. App’x 49, 51 (6th Cir. 2009) (citing Ellis ex rel. Pende rgrass v. Cleveland Mun. Sch. Dist. , 455 F.3d 690, 700 (6th Cir. 2006)). A plaintiff suing a municipality must identify an unconstitutional policy or custom in order to preva il on a § 1983 claim. See id

. A policy that fails to adequately train an employ ee, such as a police office r, may “ser ve as the basis for § 1983

23liability only wher e the failure to train amounts to delibera te indiffer ence to the ri g hts of persons

with whom the police come into contac t.” City of Canton v. Harris , 489 U.S. 378, 388 (1989). To establish liability under City of Canton , “the plaintiff must prove, that the training prog ram at issue is inadequa te to the tasks that office rs must perf orm; that the i n adequa cy is the result of the city ' s deliberat e i n d iffer ence ; and that the inadequa cy is ‘closely rela ted to’ or ‘ac tually cause d’ the plaintiff' s injury .” Russo v. City of Cincinnati , 953 F.2d 1036, 1046 (6th Cir. 1992) (citing Hill v. McI ntyre , 884 F.2d 271, 275 ( 6th Cir. 1989)). Plaintiffs asser

t that they have demonstrated a failure to train by the City based upon the fac t that Simm ons did not a

nnounce his status as a police of fice r to Fr odg e and B urbrink whe n he told them to “ knock it of

f,” and the fac t that he admitted that he g ener ally finds it unnecessa

ry to do so when he is in full police uniform. Plaintiffs arg ue that their failure to adequately train theory is also based upon Kunkel’s failure to perf orm any investiga tion into the use of forc e. The mag istrate judge found that t h i s cl aim failed beca use Plaintiffs “do not explain in what manner the City ’s training prog ram, or Simm ons’s training specifical l y , was inadequa te, nor [do they ] provide evidenc e of

rec urring complaints or any other complaint of a const i t u t ional violation

. . . .” Plaintiffs do not identify any alleg ed defic iencies in the training provided to Simm ons or Kunkel. The Supreme Court has stated that the fac t “[t] hat a particula r office r may be unsatisfact o ri l y t ra i ned will not alone suffice to f

asten liability on the city , for the office r’s shortcoming s may have resulted from fac tors other than a faulty training prog ram.” City of Canton, 489 U.S. at 390-91. Fur ther, “[i] t may be, for example, that an otherwise sound prog ram has occa sionally been neg lige ntly administered” or that an inj ury could have been avoided if an officer had better or m ore training. Id

. at 391. Howeve r, neither of these circ umstances will be sufficie nt to hold the City liable. Id

. Plaintiffs mere ly alleg e

24that Simm ons and Kunkel, and possibly Markus, may have been inadequa tely trained, but Plaintiffs

fail t o demonstrate or explain how the Cit y ’s training prog ram is insufficie nt or how the a lleg edly wrong ful actions of t h e office rs wer e cause d by a defe ct in the City ’s training prog ram. Be cause Plaintiffs have failed to meet the requisite standard, their § 1983 municipal liability claims must fail. There fore , this court aff

irms the district court’s judg ment in favor of the City and Simmons. D. P laintif

fs’ S tate Law Claim s Plaintiffs object to the dismiss al of the state law claims beca use they asser

t that constitutional violati o n s have occur

red, and there fore supplemental j urisdiction is proper ly exercised over t hese claims. This court revie ws a district court’s decision to decline supplemental jurisdiction for abuse of discretion. See Robert N. Clemens Trust v. Morgan Stanley DW , Inc. , 485 F.3d 840, 853 (6th Cir. 2007). Pursuant to 28 U.S.C. § 1367(c) (3), the district court may decline to exercise supplemental jurisdiction over state law claims if it has dismiss ed all claims over which it had orig inal jurisdiction. The district court’s decision to exercise supplemental j u ri sdiction “depe nds on judicial economy , convenie nce, fairne ss, and comity .” Musson Theatrical, Inc. v. Fed. Express Corp. , 89 F.3d 1244, 1254 (6th Cir. 1996) (interna l citation and quotation marks omitted). T h e d i s t ri ct court had orig inal jurisdiction over Plaintiffs’ § 1983 claims for false arr est , excessive forc e, and supervisory and municipal liability and could have exercised supplem ental jurisdiction over Plaintiffs’ state law claims. Howeve r, this court has stated that “‘in the usual case in which all fede ral law claims are eliminated befor e trial, the balanc e of fac tors to be considere d

.

. . will point toward declining to exercise jurisdiction over the rema ining state-law claims.’” Robert N. Clemens Trust , 485 F.3d at 853 (quoting Carnegie-Me llon Univ. v. Cohill , 484 U.S. 343, 350 n.7 (1988))

. The dist rict court g rante d summary judgme nt in favor of Def endants on all of P laintiffs’

25fede ral claims. Simi larly , we have held that there wer e no constitutiona l violations and that

Def endants were entitled to summary judgme nt. Thus, Plaintiffs’ arg ument th at t h e d i strict court should have exercised supplemental juri s diction over the state law claims beca use constitutional violations have occur

red is not well-take n. Plaintiffs point to no other fac tors that would support the exercise of supplemental jurisdiction under § 1367 over their state law claims in light of the fede ral claims being dismiss ed. Consequently , this court finds the district court did not abuse its discretion in declining to exercise supplementa l jurisdiction over Plaintiffs’ state law c laims. IV. CONCLUSION F o r th e f o r e g oing rea sons, we AF F IRM the district court’s order g ranti n g s u mm a r y ju d g me n t on all of Plaintiffs’ fe dera l claims and dismissing Plaintiffs’ state lawclaims.

26