The opinion of the court was delivered by: Chief Judge Curtis L. Collier
Before the Court is a motion for summary judgment filed by defendants City of Cleveland ("City"), Cleveland Police Department ("CPD"), and Chris Jacques ("Jacques") in his individual capacity (collectively, "Defendants") (Court File No. 33). Defendants also filed a memorandum in support of their motion for summary judgment (Court File No. 36). Plaintiff Vivian Hardwick ("Plaintiff") filed a response (Court File No. 40), to which Defendants filed a reply (Court File Nos. 43 & 44).*fn1 For the following reasons, Defendants' motion for summary judgment will be GRANTED IN PART and DENIED IN PART (Court File No. 33).
I. Relevant Facts and Procedural History
The events giving rise to this case began on the afternoon of February 1, 2006, as Plaintiff drove through a school zone. A crossing guard, Talece Darcy, motioned for Plaintiff to slow down and then stepped in front of her car (Court File No. 40-2 ["Hardwick dep."], pp. 82-84). Darcy alleges that before Plaintiff slowed down, her car hit Darcy's wrist, causing her body to twist around (Court File No. 33-3 ["Darcy affidavit"], ¶ 4). However, Plaintiff denies her car made contact with Darcey (Hardwick dep., p. 84). When Plaintiff stopped her car, Darcy commented to Plaintiff about the need to slow down and Plaintiff then drove off (id., p. 85; Darcy affidavit, ¶ 5). Darcy called the police, and Jacques, a Cleveland police officer, arrived (Darcy affidavit, ¶ 6). Darcy told him Plaintiff's car hit her and she provided him Plaintiff's license plate number (id.). As a result of being struck, Darcy sought medical treatment for her wrist, shoulder, and back (Darcy affidavit, ¶ 7).
Using the license plate number, Jacques determined Plaintiff's address, and later that day he went to Plaintiff's house to question her. When Jacques came to Plaintiff's door, Plaintiff was napping (Hardwick dep., p. 94). She heard him bang on her door but was unaware the noise was from a police officer (id., p. 108). From her upstairs bedroom, she yelled several times for the person at her door to leave her property (id., pp. 108-09). She then started walking downstairs and was able to see that the person at her door was a police officer (id., pp. 110-11). She opened the door for Jacques, who said he was investigating an accident involving Darcy (id., pp. 113, 119). Jacques claims Plaintiff admitted to him she had hit Darcy (Court File No. 33-22, ["Jacques dep."], p. 60). Plaintiff denies making an admission she hit Darcy; she claims she admitted she had probably been speeding but insisted there was no accident (Hardwick dep., p. 119). Jacques asked Plaintiff for her driver's license, insurance information, and vehicle registration (Hardwick dep., p. 121). She questioned him about the incident rather than getting the requested documents, which were in her purse located upstairs and in the car located in the garage (id., p. 122). The delay prompted Jacques to tell Plaintiff he would have given her a citation but was now going to arrest her (id., p. 121). Plaintiff responded that she would get the information, so she "made an attempt to turn and go up the stairs to get" the information, but Jacques grabbed her from behind (id., pp. 123-24).
Jacques handcuffed Plaintiff. The arrest took place inside the home, and Plaintiff remembers pushing the door closed but Jacques pushing it in (Court File No. 33-21, p. 115). Once he was in the house, she did not tell him to leave (id., pp. 116-17). Jacques's description of the incident also indicates the arrest took place in Plaintiff's house (Jacques dep., pp. 61-67).
After arresting Plaintiff, Jacques tasered her twice (id., pp. 124-25; Court File No. 33-2, p. 2).*fn2 A neighbor of Plaintiff's who witnessed the occurrence from across the street heard Plaintiff yelling at the officer and waving her hands back and forth (Court File No. 33-4 ["Moore dep."], ¶ 5).*fn3 The neighbor then saw Jacques escort Plaintiff while handcuffed down her front steps and to his police car (id., ¶ 6). The neighbor and Jacques contend Plaintiff vigorously resisted, yelling the entire time, repeatedly trying to kick Jacques, and spinning around to get out of his grasp (id., ¶¶ 6-7; Jacques dep., pp. 68-71). However, Plaintiff denies she resisted Jacques's efforts to take her to his police car (Court File No. 33-21, pp. 135-37). She denies kicking Jacques or trying to run away from him (id.). At no point did Jacques feel Plaintiff was a threat to injuring him (Court File No. 43-10, p. 92).
John Dailey, a police lieutenant who commanded CPD's Echo Team Patrol unit, created a point system in the fall of 2004 after noticing that some officers were barely performing any work (Court File No. 40-3, pp. 11-12). The point system was designed to encourage officers to do their jobs (id., p. 12). Arrests were worth more points than other work, including citations (Court File Nos. 40-6, p. 45 & 40-9, p. 7). Dailey began using the system to evaluate his officers and at some point communicated his system to them (Court File No. 40-3, p. 14). Dailey required officers to maintain a certain number of points, and they received a verbal warning if they dropped below the minimum three months in a row (id.). Some officers believed they faced repercussions for performing poorly (Court File Nos. 40-4, p. 8 & 40-7, p. 9). The best-performing officer each month got to choose his patrol zone and lunch time (Court File No. 40-3, p. 18). High performing officers may have also received better equipment (Court File Nos. 40-5, p. 17 & 40-6, p. 46).
There is evidence the chief of police was involved in propagating the point system to all the shift lieutenants (Court File No. 40-4, p. 9). Some personnel criticized the point system at the time it was implemented (id.). One said the point system would "force officers to make bad arrests" and "cause them to be in positions where they would make decisions which would potentially put them in lawsuit situations" (id., p. 10). The point system was formally abandoned in November 2005 (Court File No. 33-16), but there is evidence of Dailey using the system for his officers into May 2006 (Court File Nos. 40-5, p. 16 & 40-7, p. 8) and through March 2007 (Court File No. 40-6, p. 47). Jacques worked under Dailey through approximately June 2006 (Court File No. 43-10, p. 90). Jacques was a high-performing officer under the point system (Court File No. 40-7, p. 9).
A supervisor stated he told some officers to "back off" and stop "over achieving," which he indicated meant officers should arrest someone "because they need to be arrested," not "because it excites you" (Court File No. 40-4, pp. 33-35). The supervisor thinks he told this to Jacques (id.).
Plaintiff brought this action against Defendants under 42 U.S.C. § 1983 alleging Jacques used excessive force against her in violation of the Fourth and Fourteenth Amendments and CPD "has a custom, practice or policy, executed by its police department, of using the threat of lethal force inappropriately against citizens who are not engaged in any criminal activity." (Court File No. 1, ¶¶ 8-9). Her constitutional claim also alleges Jacques made an illegal warrantless arrest of Plaintiff pursuant to CPD policy (id., ¶ 9). Plaintiff also asserts Jacques committed "outrageous conduct" (id., ¶ 10), assault and battery (id., ¶ 11), and intentional infliction of emotional distress (id., ¶ 12). Alternatively, Plaintiff alleges Jacques was negligent, and the City is liable for its employee's negligence (id., ¶ 13). Plaintiff seeks compensatory damages, punitive damages, attorney's fees, and costs (id., ¶ 14).
Summary judgment is proper when "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 the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). First, the moving party must demonstrate no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The Court views the evidence, including all reasonable inferences, in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, the non-movant is not entitled to a trial based solely on its allegations, but must submit significant probative evidence to support its claims. Celotex, 477 U.S. at 324; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The moving party is entitled to summary judgment if the non-movant fails to make a sufficient showing on an essential element for which it bears the burden of proof. Celotex, 477 U.S. at 323. In short, if the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court may enter summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
Plaintiff sued under 42 U.S.C. § 1983 for alleged violation of her rights under the Fourth and Fourteenth Amendments to the United States Constitution. Section 1983 allows a person to sue to vindicate the deprivation of federal ...