Smith v. Shelby County, TN

721 F. Supp. 2d 712, 2010 U.S. Dist. LEXIS 58701, 2010 WL 2465472

• Court: District Court, W.D. Tennessee
• Decided: June 14, 2010
• Docket: 10-2059-STA-tmp
• Status: Published

Opinion

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT

S. THOMAS ANDERSON, District Judge.

Before the Court is Defendants’ Motion to Dismiss or in the alternative for Summary Judgment (D.E. # 4) filed on February 12, 2010. Plaintiff has responded in opposition to Defendants’ Motion. For the reasons set forth below, the Motion is GRANTED.

BACKGROUND

Plaintiffs Complaint contains the following allegations: on or about December 20, 2008, Plaintiff Brandon Smith was experiencing a seizure at his residence. (Compl. ¶ 6). A family member of the Plaintiff called 911 for ambulance assistance. (Id.). Deputies G. Beans and J. Sturgeon while in the course and scope of their employment with Shelby County, Tennessee and in their individual and official capacity negligently and with deliberate indifference to the clearly established constitutional rights of Plaintiff proceeded to beat him without provocation and utilize other force upon him while he was in the process of a seizure. (Id.). Deputy Beans and Deputy Sturgeon’s conduct was objectively unreasonable under the color of state law and a proximate cause of his injuries and damages. (Id.). Plaintiffs family had initiated the 911 call for medical assistance. (Id.) Deputies Beans and Sturgeon also assaulted Plaintiff and proximately caused his injuries and damages. (Id.).

Plaintiff has also alleged that Defendant Shelby County is liable for the deprivation of his rights because Shelby County failed to properly train, supervise, discipline, retain or hire the deputies and that failure was the moving force behind Plaintiffs injuries. Similarly, Plaintiff has named Sheriff Mark Luttrell (“Sheriff Luttrell”) as a defendant for his failure to train, supervise, hire or retain the deputies pursuant to § 1983. Plaintiff has further alleged that Defendants Shelby County and Sheriff Luttrell were negligent in supervising and training the deputies pursuant to the Tennessee Governmental Tort Liability Act (“GTLA”).

In their Motion, Defendants argue that the Court should dismiss all of Plaintiffs claims or in the alternative grant Defendants summary judgment on all claims. Defendants have attached for support evidence in support of their Motion including the hiring and training procedures Shelby County utilizes in selecting sheriffs deputies; the training records of Deputy Beans and Deputy Sturgeon; the Use of Force form the deputies completed documenting their arrest of Plaintiff; a recording of the 911 call placed from Plaintiffs residence; and affidavits of Deputy Beans and Deputy Sturgeon.

As for each of Plaintiffs claims, Defendants first argue that claims against Sheriff Luttrell in his official capacity are actu ally claims against Shelby County. As a result, the Court should dismiss those claims. Plaintiffs Complaint does not contain any claim against Sheriff Luttrell in his individual capacity.

Second, Defendants argue that the deputies are entitled to qualified immunity because the record shows that their actions were objectively reasonable under the circumstances. Defendants contend that there was a history of reports of domestic violence at Plaintiffs residence. The 911 dispatcher informed the deputies of this fact. The initial 911 call was placed by a woman, but the call was disconnected before the dispatcher could obtain information from her. The dispatcher’s subsequent call was also disrupted. When the deputies arrived, they found Plaintiff bleeding from the head and holding a pregnant woman in a headlock. Plaintiff resisted the deputies and assaulted them with items in the house. The deputies acted to subdue Plaintiff for his own safety and for the safety of others in the house. Based on these facts, Defendants argue that the deputies have established the objective reasonableness of their actions and so are entitled to qualified immunity.

Third, Defendants assert that Plaintiff cannot prevail on any claim against Shelby County. Shelby County argues that the claims against the deputies should be dismissed and by extension any claim against the County for failure to train the deputies should also be dismissed. Plaintiffs § 1983 allegations against Shelby County are conclusory and fail to state a claim under Rule 12(b). Plaintiff also cannot recover from Shelby County on the basis of respondeat superior. Shelby County contends that it has training policies in place to assure proper screening and hiring. Fourth, Defendants argue that mere negligence cannot form the basis of a § 1983 claim.

Nor can Plaintiff recover punitive damages from Shelby County.

As for Plaintiffs state law claims, Defendants state that Shelby County is immune from suit pursuant to the GTLA for the intentional acts of its employees as well as for alleged civil rights violations. As for Plaintiffs claim for negligence, Defendants argue that Plaintiff was bleeding heavily when deputies responded to the 911 call. Therefore, Plaintiff cannot show that the deputies actions were the proximate cause of his injuries. Plaintiffs claim for assault and battery should also be dismissed because the deputies used only the amount of force necessary to effectuate the arrest. Finally, Defendants contend that the deputies are entitled to general immunity under Tennessee law.

Plaintiff has responded in opposition to Defendants’ Motion offering his own version of events from the night of his arrest. According to Plaintiff, Aisha Swatt (“Swatt”) placed the 911 call for medical assistance because Plaintiff was experiencing a seizure. Plaintiff was lying on the bathroom floor. After Swatt moved him to the bed, the deputies knocked on the door and announced their presence. Swatt allowed the deputies to enter; however, Plaintiff states that he was afraid of the deputies. The deputies “jumped over Swatt” and chased Plaintiff around the bedroom. Swatt told the deputies that Plaintiff “did not know who he was.” Once the deputies ordered Swatt out of the room, she heard the sound of someone being hit with a baton. Plaintiff states that his records from the Med reported that Plaintiff was struck in the head with a nightstick. Plaintiff also alleges that after he was handcuffed, one of the deputies rammed his head into the wall. The deputies admit to using a chemical agent in Plaintiffs eyes.

Plaintiff argues that Sheriff Luttrell promulgated the department’s use of force policy. With respect to training, each deputy received only two hours training in dealing with mental illness. Plaintiff contends that the County was also on notice that Deputy Sturgeon posed a risk of using excessive force due to a previous incident. Plaintiffs right to be free from baton strikes when he was not resisting or in a state of seizure was clearly established as was his right to be free from chemical agents, having his head rammed into the wall, or having a knee placed into his back while being handcuffed. Plaintiff next contends that Shelby County is not entitled to immunity because the deputies conduct deviated from the County’s use of force policy. From the well-plead allegations of his Complaint and the record before the Court, Plaintiff argues that Defendants cannot show that his claims should be dismissed.

STANDARD OF REVIEW

A defendant may move to dismiss a claim “for failure to state a claim upon which relief can be granted” under Federal Rule of Civil Procedure 12(b)(6). When considering a Rule 12(b)(6) motion, the Court must treat all of the well-pleaded allegations of the complaint as true and construe all of the allegations in the light most favorable to the non-moving party. 1 However, legal conclusions or unwarranted factual inferences need not be accepted as true. 2 “To avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential allegations with respect to all material elements of the claim.” 3 “The Federal Rules of Civil Procedure do not require a claimant to set out in detail all the facts upon which he bases his claim.” 4

The Supreme Court has more recently stated that the Federal Rules “do not require a heightened fact pleading of specifics, but only enough facts to state a claim that is plausible on its face.” 5 The Sixth Circuit has subsequently acknowledged “[significant uncertainty” as to the intended scope of Twombly. 6 Consequently, the Sixth Circuit has articulated the following as the standard of review for 12(b)(6) motions: on a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” 7 Thus, although the factual allegations in a complaint need not be detailed, they “must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” 8

In the alternative, Defendants have also sought summary judgment pursuant to Rule 56. Federal Rule of Civil Procedure 56(c) provides that a

judgment ... shall be rendered forthwith 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 the moving party is entitled to a judgment as a matter of law. 9

In reviewing a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. 10 When the motion is supported by documentary proof such as depositions and affidavits, the nonmoving party may not rest on his pleadings but, rather, must present some “specific facts showing that there is a genuine issue for trial.” 11 It is not sufficient “simply [to] show that there is some metaphysical doubt as to the material facts.” 12 These facts must be more than a scintilla of evidence and must meet the standard of whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict. 13 When determining if summary judgment is appropriate, the Court should ask “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-side that one party must prevail as a matter of law.” 14

Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” 15 In this Circuit, “this requires the nonmoving party to ‘put up or shut up’ [on] the critical issues of [her] asserted causes of action.” 16 Finally, the “judge may not make credibility determinations or weigh the evidence.” 17 Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if ... there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” 18

ANALYSIS

I. Converting Defendants’ Motion to Dismiss to a Motion for Summary Judgment

Defendants have moved to dismiss Plaintiffs claims against them pursuant to Rule 12(b)(6) because the allegations as pled fail to state any claim as a matter of law. In the alternative, Defendants seek summary judgment as to other claims pursuant to Rule 56, particularly Plaintiffs § 1983 claims against the deputies in their individual capacities. Fed.R.Civ.P. 12(d) provides

If, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. 19

The Sixth Circuit has described a trial court’s decision to convert sua sponte a Rule 12 motion to one for summary judgment as “serious error.” 20

Under the circumstances, the Court holds that it is unnecessary to convert the Motion or give the parties notice that the Court will consider the Motion pursuant to Rule 56. Defendants moved for summary judgment in the alternative and attached affidavits and other evidence to the Motion. 21 Plaintiff responded in opposition to the Motion by attaching affidavits and other evidence as well as filing a motion for discovery pursuant to Rule 56(f). 22 Therefore, the Court finds that both parties had notice that Defendants’ Motion might be treated as one for summary judgment.

Furthermore, the Court need not consider all of the arguments raised in Defendants’ Motion under Rule 56. Defendants argue that Plaintiff has failed to state some of his claims as a matter of law, for example, Plaintiffs § 1983 claims against county employees in them official capacities and his GTLA claims. With respect to those claims, the Court’s analysis is limited to the well-pled allegations of the Complaint itself. 23 Defendants have attacked other claims by attaching affidavits and arguing that Plaintiff cannot adduce evidence to make out a prima facie case as to those claims. Defendants contend that they are entitled to summary judgment as to those claims, for example, Plaintiffs § 1983 claims against the deputies in their individual capacities. With respect to these claims, the Court must analyze them pursuant to Rule 56 because both parties have produced evidence outside of the pleadings. For these reasons, the Court will consider some of Plaintiffs claims pursuant to Rule 12(b)(6) and others under a Rule 56 standard.

II. Plaintiff’s First Motion for Extension

In response to Defendants’ Motion, Plaintiff filed two separate motions for extension on March 11, 2010. The first motion (D.E. # 12), styled “Unopposed Motion for Time to Respond to Defendant’s Motion to Dismiss,” stated that Plaintiff sought additional time to respond to Defendants’ Motion and certified that counsel had consulted and that Defendants did not oppose the relief. Plaintiff requested to have until April 19, 2010, in which to file a response. In fact, Plaintiff responded on March 19, 2010. Therefore, Plaintiffs first motion for extension is granted.

III. Plaintiffs Second Motion for Extension Pursuant to Rule 56(f)

Plaintiff filed a second motion for extension (D.E. # 13), styled “Unopposed Mo tion for Time to Respond to Defendant’s Motion for Summary Judgment Pursuant to Rule 56(f).” Plaintiff asked for an extension of time to conduct discovery and to respond to Defendants’ Motion on or before February 23, 2011, more than one year after the Motion was filed. In his Rule 56(f) motion, Plaintiff stated that he needed the additional time “to obtain discovery in the form of testimony and documentary discovery to determine the existence of genuine issues of material fact regarding his Section 1983 claims and his state law claims.” Plaintiff further certified that Defendants did not oppose the extension until 2011.

Defendants responded in opposition to Plaintiffs second motion and disputed Plaintiffs assertion that the parties had conferred about an extension of more than one year. Defendants argue that Plaintiff has failed to comply with the requirements of Rule 56(f), specifically the formal affidavit setting forth the material facts he hopes to learn through discovery. Defendants also contend that they should not be not subject to discovery until the Court rules on the issue of qualified immunity.

The Supreme Court has observed that “limited discovery may sometimes be necessary before the district court can resolve a motion for summary judgment based on qualified immunity.” 24 Indeed, a non-moving party generally must receive “a full opportunity to conduct discovery” in order to respond to any motion for summary judgment. 25 To that end Rule 56(f) provides that the court may “order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken.” 26 In order to invoke Rule 56(f), however, the party opposing the motion for summary judgment must show “by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition.” 27 The Sixth Circuit has ruled that the filing of an affidavit and/or motion pursuant to Fed. R.Civ.P. 56(f) is a necessary prerequisite to granting extensions of time for the purpose of obtaining additional discovery to respond to a motion for summary judgment. 28 Rule 56(f) also requires that “a party making such a filing indicate to the district court its need for discovery, what material facts it hopes to uncover, and why it has not previously discovered the information.” 29 The Sixth Circuit has held that it is not an abuse of discretion for the district court to deny the Rule 56(f) request when the party “makes only general and conclusory statements [in its affidavit] regarding the need for more discovery and does not show how an extension of time would have allowed information related to the truth or falsity of the [claim] to be discovered.” 30 In § 1983 cases, a party must show that the discovery needed is “tailored specifically” to the issue of qualified immunity. 31

The Court holds that Plaintiffs Rule 56(f) motion fails to state with specificity what information Plaintiff needs to respond to Defendants’ Motion. Plaintiff simply seeks discovery on his “Section 1983 claims and his state law claims.” The Court finds that Plaintiffs description of the discovery needed is so general and conclusory that it encompasses all of the discovery to be had in this case. This conclusion is not only based on the vagueness of Plaintiffs motion but also because Plaintiff has sought an extension to respond of more than one year, that is, until all discovery deadlines in the case have passed. Otherwise, Plaintiff has not set forth what specific facts he needs to respond to Defendants’ Motion for Summary Judgment, particularly Defendants’ arguments against the § 1983 claims. Defendants have argued that the deputies are entitled to qualified immunity for all claims against them in their individual capacities. The deputies have provided affidavits about their encounter with Plaintiff, to which Plaintiff has responded with his own affidavit and the affidavit of another witness. Plaintiff has failed to show what additional facts he needs to respond to the deputies’ accounts about what actions they took and why they took them. 32 Defendants have also sought summary judgment in favor of Shelby County on Plaintiffs § 1983 claim for the County’s failure to train and supervise the deputies. The County has provided copies of its policies and training on the use of force as well as an affidavit of the Chief Deputy explaining county procedures. Plaintiff has failed to explain what additional facts he hopes to discover to create a genuine issue that the County’s policies were the moving force behind his alleged injuries. Because Plaintiff does not set forth what specific facts he needs to respond to Defendants’ arguments on these issues, Plaintiffs motion for extension pursuant to Rule 56(f) is denied.

IV. Defendants’ Motion to Dismiss Certain Claims Under Rule 12(b)(6)

A. Official Capacity Claims Against All Defendants

Plaintiff has alleged that the acts of Sheriff Luttrell, Deputy Beans, and Deputy Sturgeon were undertaken in their official capacities as employees of Shelby County. Defendants argue that such official capacity claims are essentially claims against Shelby County. The Court agrees. “[Individuals sued in their official capacities stand in the shoes of the entity they represent.” 33

When government employees like Sheriff Luttrell, Deputy Beans, and Deputy Sturgeon are sued in their official capacities, the action “is equivalent to a suit against” Shelby County. 34 Therefore, all claims against Sheriff Luttrell, Deputy Beans, and Deputy Sturgeon in their official capacities with the Shelby County Sheriffs Department are dismissed pursuant to Rule 12(b)(6).

B. Sheriff Luttrell in his Individual Capacity

Plaintiff has alleged that Sheriff Luttrell failed in his individual capacity to properly train, hire, supervise, or retain the deputies. 35 However, the Complaint fails to specify any personal act of Sheriff Luttrell that led to the deputies’ alleged violation of Plaintiffs constitutional rights. “Because § 1983 liability cannot be imposed under a theory of respondeat superior, proof of personal involvement is required for a supervisor to incur personal liability.” 36 Personal involvement amounts to “the supervisor encourag[ing] the specific incident of misconduct or in some other way directly participat[ing] in it” that is, the “supervisory official at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate.” 37 Plaintiff has failed to make such an allegation against Sheriff Luttrell in the case at bar. Therefore, Plaintiffs claim against Sheriff Luttrell in his individual capacity is also dismissed under Rule 12(b)(6).

C. GTLA Claims Against All Defendants

Plaintiff has alleged a series of causes of action sounding in tort under the GTLA including a claim for negligence against Shelby County and claims for negligence and assault against Deputy Beans and Deputy Sturgeon. State law claims against governmental entities and their employees are governed by the GTLA. 38 Ordinarily, state law claims would give this Court supplemental jurisdiction because they arise out of the same facts and form part of the same case or controversy. 39 However, GTLA claims must be brought in “strict compliance” with the terms of the state statute. 40 The GTLA confers on the state circuit courts exclusive original jurisdiction over claims brought pursuant to its provisions. 41

A federal district court may, in its discretion, decline supplemental jurisdiction over a state law claim, even if jurisdiction would otherwise be proper under § 1367(a). Section 1367(c)(4) allows a district court to “decline to exercise supplemental jurisdiction over a claim under subsection (a) if ... (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 42 The Sixth Circuit has affirmed the dismissal of GTLA claims, because “the Tennessee legislature expressed a clear preference that TGTLA claims be handled by its own state courts. This unequivocal preference of the Tennessee legislature is an exceptional circumstance for declining jurisdic tion.” 43 Therefore, the Court declines to accept jurisdiction over Plaintiffs claims brought pursuant to the GTLA in accordance with 28 U.S.C. § 1367(c)(4). 44 Because the Court declines to accept jurisdiction over these state claims, they are dismissed without prejudice

D. Claims Against Defendant Shelby County

1. Respondeat Superior

Although it never uses the phrase “respondeat superior,” Plaintiffs Complaint makes reference to Defendant Shelby County’s liability for the acts of its employees, Sheriff Luttrell, Deputy Beans, and Deputy Sturgeon. 45 The Court has already dismissed all GTLA claims against Shelby County. Likewise, a local government entity like Shelby County “cannot be held liable under § 1983 on a respondeat superior theory.” 46 Therefore, any claim against Shelby County based strictly on the acts of any Shelby County employee must be dismissed as a matter of law. Therefore, Defendants’ Motion is granted as to these claims.

2. Punitive Damages under § 1983

Defendants have argued that any claims for an award of punitive damages against Shelby County should be dismissed. It is not clear to the Court that Plaintiffs Complaint seeks such an award. Nor has Plaintiff briefed the issue in his response to Defendants’ Motion. Nevertheless, it is well-settled that a municipality or county government is “immune from punitive damages under 42 U.S.C. § 1983.” 47 Therefore, Plaintiff is barred as a matter of law from seeking punitive damages against Shelby County, and Defendants’ Motion is granted as to this claim.

V. Defendants’ Motion for Summary Judgment

Having ruled on certain claims as a matter of law, the Court now turns to the remaining claims against Defendants: § 1983 claims for the use of unreasonable force against Deputy Beans and Deputy Sturgeon in their individual capacities; and § 1983 claims for failure to train or supervise against Shelby County. Because the parties have provided evidence outside of the pleadings, the Court will analyze each claim pursuant to Rule 56 standards.

A. Unreasonable Force Claims Against the Deputies

Section 1983 imposes liability on any “person who, under color of any statute, ordinance, regulation, custom or usage, of any State” subjects another to “the deprivation of any rights, privileges, or immunities secured by the Constitution or laws.” 48 In order to prevail on such a claim, a § 1983 plaintiff must establish “(1) that there was the deprivation of a right secured by the Constitution and (2) that the deprivation was caused by a person acting under color of state law.” 49 “Section 1983 is not the source of any substantive right, but merely provides a method for vindicating federal rights elsewhere conferred.” 50

Government officials, including police officers, are immune from civil liability unless, in the course of performing their discretionary functions, they violate the plaintiffs clearly established constitutional rights. 51 In other words, a “defendant enjoys qualified immunity on summary judgment unless the facts alleged and evidence produced, when viewed in the light most favorable to the plaintiff, would permit a reasonable juror to find that: (1) the defendant violated a constitutional right; and (2) the right was clearly established.” 52 The defense of qualified immunity “ordinarily applies unless it is obvious that no reasonably competent official would have concluded that the actions taken were [] lawful.” 53 When qualified immunity is asserted, the plaintiff bears the burden of showing that the defendants are not entitled to that defense. 54 Specifically, the plaintiff “must show both that, viewing the evidence in the light most favorable to her, a constitutional right was violated and that the right was clearly established at the time of the violation.” 55

The Supreme Court has expláined, “Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat of force thereof to effect it.” 56 “All claims that law enforcement officers have used excessive force-deadly or not ... should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” 57 The Court must apply “the objective reasonableness standard, which depends on the facts and circumstances of each case viewed from the perspective of a reasonable officer on the scene and not with 20/20 hindsight.” 58 Such factors include “(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight.” 59 “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.” 60 Further, the Court conducts the reasonableness inquiry objectively, based on the “information possessed” by the offi cer, without regard to the officer’s subjective beliefs and without regard to facts not known by the officer at the time of the incident. 61

The Court holds that Deputy Beans and Deputy Sturgeon are entitled to qualified immunity from Plaintiffs § 1983 claims because Plaintiff cannot show that the deputies violated his Fourth Amendment right to be free from the use of unreasonable force. According to his brief, Plaintiff bases his excessive force claim on the following theories: (1) that he has a constitutional “right to be free from baton strikes when he was not resisting Beans and Sturgeon or in a state of seizure;” (2) that he has “the right to be free from chemical spray in his eyes, having his head rammed into the wall, and having a knee placed in his back while handcuffed.”

Based on the record before the Court, Plaintiff cannot make any of these showings. Each deputy has submitted an affidavit in support of the Motion for Summary Judgment stating their version of events. Plaintiff has submitted his own affidavit as well as the affidavit of Aisha Swatt, the woman who placed the 911 call on the night in question. Viewing this evidence in a light most favorable to Plaintiff, Plaintiff cannot establish that the deputies violated his constitutional rights. When assessing the reasonableness of a law enforcement officer’s actions, the Court must analyze the seizure or arrest in segments. 62 Therefore, the Court will consider each of Plaintiffs allegations of excessive force as they occurred on the morning of December 20, 2008.

1. Use of Pepper Spray

First, the Court finds that the use of pepper spray was objectively reasonable under the circumstances. The deputies’ affidavits state that pepper spray was used on Plaintiff while he was standing on a bed at his residence and swinging a plastic bag containing unknown items at the deputies. 63 This was after the deputies had heard shouting coming from the room where Plaintiff and Swatt were, alerted Plaintiff and Swatt to their presence, identified themselves as sheriffs deputies, and entered the bedroom. 64 Dispatch had notified the deputies that a man at Plaintiffs residence had struck his head and needed medical assistance. 65 Dispatch had also indicated that there was a history of domestic violence calls from the address. 66 Both deputies observed Plaintiffs head bleeding. 67 Both deputies state that Swatt was telling Plaintiff that the deputies were there to help him. 68 The deputies also state that Swatt was pregnant and they repeatedly ordered her to leave the room. 69 Nevertheless, Plaintiff swung a stereo speaker at the deputies, threw that at them, and then jumped onto the bed. 70 The deputies reported in their use of force form that Plaintiff shouted at them, “I’ll fuck you up.” 71 It was at this point that one of the deputies used pepper spray.

Nothing in the evidence adduced by Plaintiff contests any of these facts. Plaintiff declares in his own affidavit that on the night in question, he regained consciousness in the bedroom where he found the deputies in the room and himself in handcuffs. 72 Plaintiff goes on to state that one of the deputies pushed his head into the wall or floor while he was handcuffed and that his eyes were burning from being sprayed with pepper spray. 73 Ms. Swatt’s affidavit states only that she could smell mace or pepper spray and that she observed chemical stains on the wall. 74 Swatt also avers that she called 911 that night to seek medical assistance for Plaintiff because Swatt had found him in a bathroom with a gash over his right eye. 75 Swatt helped Plaintiff to the bed and then answered the deputies’ knock at the door. 76 Swatt stated that when the deputies came into the room, Plaintiff became alarmed. 77 According to Swatt, the deputies rushed in and began to chase Plaintiff around the room. 78 Before the deputies made Swatt leave the room, she told the deputies that Plaintiff “did not know who he was.” 79 Plaintiff has not provided any other information about his version of the events of December 20, 2008. As a result, Plaintiff has failed to adduce any evidence to contradict the deputies’ statements about the circumstances in which the deputies used pepper spray.

The Court holds that the use of pepper spray under these facts did not violate Plaintiffs constitutional rights. The evidence shows that the officers were responding to a call for medical assistance and upon arrival they observed Plaintiff with an obvious need for medical attention, i.e. his head was bleeding. It is further undisputed that the officers had information about the history of domestic violence calls from Plaintiffs address and that officers heard shouting from the room where Plaintiff and Swatt were It is also undisputed that Plaintiff went into an agitated state: Plaintiff ran from the deputies and “did not know who he was.” Swatt has not challenged the deputies’ statements that Plaintiff began to swing objects at the deputies and made a verbal threat against them.

Applying these facts to the Graham v. Connor factors, the use of the pepper spray was objectively reasonable under the circumstances. Viewing this evidence in the light most favorable to Plaintiff, it cannot be said that there was probable cause to believe that Plaintiff had committed a crime. The parties dispute whether the deputies ever observed Plaintiff holding Swatt in a headlock. As a result, the Court finds that the severity of the crime factor is not relevant for purposes of this Motion. Nevertheless, Plaintiff did pose an immediate threat to himself and others present and actively resisted the deputies’ attempts to control him. The undisputed evidence shows that Plaintiff was swinging objects in the room at the deputies and shouted a threat at them. The Sixth Circuit has held that the use of pepper spray is reasonable where officers use it in order to gain compliance from a person who they believe needs medical attention and may pose a risk of harm to himself. 80 In that case, the Sixth Circuit concluded that “[a]l-though [the arresting officer] did not suspect Plaintiff of having committed a crime, he had reason to believe that the potential consequences of inaction would be serious.” 81 Likewise, the Court finds that the deputies acted reasonably in using spray to gain compliance over Plaintiff because they had reason to believe that Plaintiff was a danger to himself, to the then-pregnant Swatt, to the paramedics there to treat Plaintiffs cut, and to the deputies themselves.

Additionally, Plaintiff was resisting the deputies’ efforts to gain control. The deputies stated that Plaintiff was in such a state that it was not safe for Swatt or the paramedics to enter the room until Plaintiff was restrained. According to Deputy Beans, during his struggle with Plaintiff, the deputy was also concerned that Plaintiff was attempting to get control of the deputy’s firearm. 82 Under these facts, it was not unreasonable for the deputies to use pepper spray to disable Plaintiff. The cases Plaintiff has cited in support concerning the use of pepper spray are clearly distinguishable, primarily because Plaintiff was not in handcuffs when the deputies deployed pepper spray. 83 Therefore, the use of pepper spray did not violate Plaintiffs rights, and Defendants are entitled to qualified immunity on this claim.

2. Baton Strikes

The second basis for Plaintiffs claim of unreasonable force is the deputies’ alleged use of batons to gain Plaintiffs compliance. The deputies have averred that neither of them used their batons to strike Plaintiff during the struggle. 84 After one of the deputies used the pepper spray, Plaintiff jumped from the bed toward Deputy Sturgeon. 85 At that point Deputy Beans grabbed the Plaintiff and the two men tumbled to the floor. 86 Deputy Sturgeon was able to get one of Plaintiffs hands cuffed, but Plaintiff continued to struggle and kick at the deputies. 87 It took the efforts of several deputies to get Plaintiffs other hand cuffed. 88 Both deputies have stated that they learned that a third deputy, not named in this suit, struck Plaintiff twice on the leg with a baton to prevent him from kicking the deputies. 89

As previously noted, Plaintiffs affidavit about his struggle is noticeably lacking in any detail. However, Ms. Swatt’s affidavit indicates that after the deputies ordered her to leave the room, she heard “one or both deputies pull out their nightsticks or billy clubs and hit someone” whom Swatt believed to be Plaintiff. 90 Plaintiff has also cited for support the medical records from his subsequent treatment at the Med.

The Court holds that Plaintiff has failed to adduce evidence that either Deputy Beans or Deputy Sturgeon used a baton against him. It is undisputed that a baton was used against Plaintiff at some point while deputies attempted to restrain him. Both deputies have stated that a third deputy used a baton on Plaintiffs leg at a time when Plaintiff was kicking the deputies. The use of force report identified the third deputy as Deputy McNinch. 91 While admitting that she was not in the room, Ms. Swatt has stated only that she heard what sounded like someone hitting another person with a nightstick. In fact, the affidavits of Swatt and Plaintiff are silent about who actually struck Plaintiff with a baton, and neither refers to the presence of Deputy McNinch. Based on this record, Plaintiff has failed to adduce any evidence that Deputy Beans or Deputy Sturgeon actually struck him with a baton. The Court also observes that Plaintiffs admission record from the Med stated the following under the “Description” section: “struck about the head with nightstick.” 92 Plaintiff has failed to show whether this was an actual diagnosis or simply his own report of what happened. The Court finds that it is the only place in the record, including Plaintiffs Complaint and his affidavit, where there is any suggestion that Plaintiff was struck in the head with a baton. Without some further showing, Plaintiff has failed to prove that Deputy Beans or Deputy Sturgeon struck him with a baton. Therefore, these Defendants are entitled to qualified immunity as to this claim.

Even if the Court inferred from Swatt’s limited testimony that Deputy Beans and/or Deputy Sturgeon used a baton against Plaintiff, the Court holds that this level of force was objectively reasonable under the circumstances. First and foremost, it is undisputed that the only baton strikes Plaintiff suffered were on one or both legs. Plaintiff has presented no evidence about who struck him, where he was struck, how many times he was struck, and when he was struck. Therefore, the cases involving baton strikes Plaintiff has cited for support are inapposite. More specifically, these cases addressed the reasonableness of police striking a suspect with batons after subduing or incapacitating the suspect. 93 Here the only evidence in the record about baton strikes shows that Plaintiff was struck in the legs after he struggled with deputies and kicked them as they handcuffed him and put nylon binders on his legs. Based on that evidence, Plaintiff was clearly resisting the deputies by continuing to kick, and the baton strike(s) was aimed at his legs. Therefore, even if the Court drew the inference that a deputy struck Plaintiff with a baton, the Court finds that striking Plaintiffs legs as he resisted by kicking the deputies is objectively reasonable. Defendants’ Motion is granted as to this claim.

3. Pushing Plaintiff’s Head into a Wall and Placing a Knee in His Back

Plaintiffs final claim of excessive force is that the deputies pushed his head into the floor or wall and they placed a knee in his back, both after he was handcuffed. In her affidavit, Ms. Swatt stated that she saw one of the deputies put his knee in Plaintiffs back after Plaintiff was handcuffed. Plaintiff has also stated in his affidavit that one of the deputies pushed his head into the wall or the floor while he was handcuffed.

It is well-settled in this Circuit that “use of force after a suspect has been incapacitated or neutralized is excessive as a matter of law.” 94 For example, in cases involving police putting a knee in a suspect’s back, the Sixth Circuit has held that police used excessive force by kneeling on a compliant, handcuffed suspect’s neck while a second officer pointed a gun at the suspect’s head 95 and in another case that police acted unreasonably by throwing a suspect to the ground and “jumping up and down on [her] back with a knee ... for around fifteen minutes.” 96 Similarly, the Court held that an officer was not entitled to qualified immunity where the suspect was handcuffed and compliant and the officer pushed her face into the ground every time she attempted to speak 97 or that an officer had no justification for slamming an arrestee’s head into the floor three times after the arrestee was subdued and another officer was sitting on him. 98 The common rationale for these decisions is that “once the detainee ceases to pose a threat to the safety of the officers or others, the legitimate government interest in the application of significant force dissipates.” 99 Therefore, the police conduct in these cases involving the use of force against compliant suspects was unreasonable and violated the Fourth Amendment.

At the same time, it is well-settled that law enforcement officers have the authority to use some level of force to effectuate an arrest, or in this ease a seizure where the Plaintiff had a medical need and was actively resisting the deputies. One court has observed that the “Sixth Circuit has consistently held that a suspect’s resistance justifies the application of minimal force to subdue and handcuff him.” 100 For example, the Sixth Circuit concluded that the act of placing a knee in a suspect’s back followed by the use of a wrist lock was not objectively unreasonable where the officer “reasonably concluded” that the suspect was resisting arrest. 101

The Court holds that Plaintiff has failed to show that the deputies’ alleged conduct rises to the level of a constitutional violation because Plaintiff was actively resisting the deputies even after being handcuffed. As an initial matter, Plaintiff has not alleged the type of outrageous police misconduct or deadly injuries alleged in other cases involving police putting a knee in a suspect’s back or pushing the suspect’s face into the floor or wall. More importantly, although Plaintiff has adduced evidence that the deputies applied force after he was handcuffed, Plaintiff has not disputed that he resisted the deputies and continued to resist even after he was pepper sprayed and in handcuffs. The record shows that while Plaintiff struggled with Deputy Beans, Deputy Sturgeon was able to get only one of Plaintiffs hands cuffed. Both deputies have also stated that it took the effort of three deputies to finally cuff the other hand. Even after Plaintiff was in handcuffs, then Plaintiff kept on kicking the deputies, and the struggle to restrain Plaintiff continued. It was only after the deputies bound Plaintiffs feet that Plaintiff stopped resisting.

Notably, Plaintiff does not indicate whether a deputy pushed his face into the floor or wall when Plaintiff was actively struggling with the deputies or after the deputies bound his feet and finally subdued him. Nor does Ms. Swatt indicate whether a deputy placed a knee in Plaintiffs back during the struggle or after deputies had restrained Plaintiff. Nevertheless, assuming that a deputy did put a knee in Plaintiffs back and another deputy pushed his face into the floor, as the Court must for purposes of this Motion, other evidence in the record suggests that the deputies did so during the struggle and not at a time after Plaintiff was restrained and no longer resisting. Both Deputy Beans and Deputy Sturgeon have averred that paramedics were allowed to come into Plaintiffs bedroom after Plaintiffs feet were finally immobilized and the struggle was over. 102 At that point, Plaintiff was then put on a stretcher and taken to the ambulance. 103 Therefore, it can be inferred from this evidence that the encounter with the deputies was over as soon as Plaintiff was under control and under the care of the paramedics. Therefore, if a deputy pushed Plaintiffs face into the floor or wall and a deputy placed a knee in Plaintiffs back, the evidence in the record tends to show that these acts occurred at a time when Plaintiff was still forcibly resisting the deputies. The fact that Plaintiff continued to struggle against the deputies even after both of his hands were cuffed makes the facts of this case distinguishable from the other excessive force cases cited above. As a result, Plaintiff has failed to show that the use of force was unreasonable under the circumstances set forth in the record before the Court.

Viewing the evidence in the light most favorable to Plaintiff, the Court holds that Plaintiff has failed to carry his burden to show that a constitutional right was violated and that the right was clearly established at the time of the violation. Therefore, Defendants Beans and Sturgeon are entitled to qualified immunity on Plaintiffs § 1983 claims against them.

B. Section 1983 Claims Against Shelby County

The Court holds that Defendant Shelby County is entitled to summary judgment on Plaintiffs § 1983 claims against it. Plaintiff has alleged that the policy of Defendant Shelby County was the moving force behind the deprivation of his constitutional rights. However, the Court has concluded that the acts of Defendants Beans and Sturgeon did not violate Plaintiffs right to be free from unreasonable force. Absent proof that an arrest or seizure violated a plaintiffs federal constitu tional rights, there can be no municipal liability under Monell v. Department of Social Services of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). 104 Therefore, Defendants’ Motion is granted as to Defendant Shelby County.

CONCLUSION

Plaintiffs claims against Sheriff Luttrell, Deputy Beans, and Deputy Sturgeon in their official capacities and against Sheriff Luttrell in his individual capacity are dismissed for failure to state a claim pursuant to Rule 12(b)(6). Likewise, Plaintiffs tort claims under the GTLA and claims against Defendant Shelby County for respondeat superior and for punitive damages are dismissed under Rule 12(b)(6).

Defendant Deputy Beans and Deputy Sturgeon are entitled to qualified immunity on Plaintiffs § 1983 because Plaintiff has failed to show that the deputies used an unreasonable amount of force against plaintiff. Consequently, Shelby County is entitled to summary judgment on Plaintiffs § 1983 claims for failure to train or supervise. Therefore, Defendants’ Motion is GRANTED.

IT IS SO ORDERED.

1 . Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Saylor v. Parker Seal Co., 975 F.2d 252, 254 (6th Cir. 1992).

2 . Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).

3 . Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.2003).

4 . Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

5 . Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007) (“retiring” the "no set of facts” standard first announced in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

6 . Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541 (6th Cir.2007); see also Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 337 (6th Cir.2007) (“We have noted some uncertainty concerning the scope of Bell Atlantic Corp. v. Twombly, ... in which the Supreme Court 'retired' the 'no set of facts' formulation of the Rule 12(b)(6) standard. ...”).

7 . United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 502 (6th Cir.2007) (quoting Twombly, 127 S.Ct. at 1974 (2007)).

8 . League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir.2007) (emphasis in original) (citing Twombly, 127 S.Ct. at 1964-65).

9 . Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Canderm Pharmacol, Ltd. v. Elder Pharms., Inc., 862 F.2d 597, 601 (6th Cir.1988).

10 . Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

11 . Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

12 . Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.

13 . Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

14 . Id. at 251-52, 106 S.Ct. 2505 (1989).

15 . Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

16 . Lord v. Saratoga Capital, Inc., 920 F.Supp. 840, 847 (W.D.Tenn. 1995) (citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989)).

17 . Adams v. Metiva, 31 F.3d 375, 379 (6th Cir.1994).

18 . Fed.R.Civ.P. 56(c); see also Celotex, 477 U.S. at 322, 106 S.Ct. 2548.

19 . Fed.R.Civ.P. 12(d).

20 . Helwig v. Vencor, Inc., 251 F.3d 540, 552 (6th Cir.2001).

21 . Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th Cir.2004).

22 . Id.

23 . See also Porter v. City of Dyersburg, Tenn., No. 07-2638, 2008 WL 2222693, at *2 n. 1 (Apr. 2, 2008).

24 . Crawford-El v. Britton, 523 U.S. 574, 598 n. 14, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998). See also Marshall v. Decatur County General Hosp., No. 08-1159, 2009 WL 3757712, at *1 (W.D.Tenn. Jan. 30, 2009) (permitting limited, “narrowly tailored” discovery on issue of qualified immunity where the plaintiff and the defendant maintained differing versions of the underlying incident).

25 . Ball, 385 F.3d at 719-20. See also Anderson v. Liberty Lobby, Inc., 477 U.S. at 257, 106 S.Ct. 2505; Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. 2548 (“the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial”); White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231-32 (6th Cir.1994) ("[in light of Anderson and Celotex,] a grant of summary-judgment is improper if the non-movant is given an insufficient opportunity for discovery”).

26 . Fed.R.Civ.P. 56(f)(2).

27 . Fed.R.Civ.P. 56(f).

28 . Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir. 1995).

29 . Cacevic v. City of Hazel Park, 226 F.3d 483, 488 (6th Cir.2000). See also CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir.2008).

30 . Ironside v. Simi Valley Hosp., 188 F.3d 350, 354 (6th Cir.1999). See also Emmons v. McLaughlin, 874 F.2d 351, 357 (6th Cir.1989) (not an abuse of discretion to reject a Rule 56(f) affidavit as insufficient to support further discovery when the affidavit lacks "any details” or "specificity”).

31 . Anderson v. Creighton, 483 U.S. 635, 646 n. 6, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).

32 . Wallin v. Nonnan, 317 F.3d 558, 564 (6th Cir.2003) (reversing and remanding where district court granted Rule 56(f) motion where moving party did not submit affidavit and court simply granted motion without considering the record that was available).

33 . Alkire v. Irving, 330 F.3d 802, 810 (6th Cir.2003) (citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)).

34 . Knott v. Sullivan, 418 F.3d 561, 574-75 (6th Cir.2005).

35 . Compl. ¶ 3.

36 . Miller v. Calhoun County, 408 F.3d 803, 817 n. 3 (6th Cir.2005).

37 . Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845, 105 S.Ct. 156, 83 L.Ed.2d 93 (1984).

38 . See Tenn.Code Ann. § 29-20-101, et seq.

39 . See 28 U.S.C. § 1367(a).

40 . Tenn.Code Ann. § 29-20-201(c).

41 . Tenn.Code Ann. § 29-20-307.

42 . 28 U.S.C. § 1367(c)(4).

43 . Gregory v. Shelby County, Tennessee, 220 F.3d 433, 446 (6th Cir.2000). See also Maxwell v. Conn, 893 F.2d 1335- (6th Cir.1990) (stating that the GTLA's grant of exclusive jurisdiction to the state courts "belie[d]” plaintiff's argument that he could expect to try the GTLA claims in the same proceeding as his federal claims).

44 . See Conner v. City of Jackson, Tenn., 669 F.Supp.2d 886, 892-93 (W.D.Tenn.2009).

45 . Compl. ¶¶ 2, 7.

46 . Knott, 418 F.3d at 574-75 (citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)).

47 . City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). The Sixth Circuit has consistently followed the holding in City of Newport. For instance, in Banier v. Szentmiklosi, the Court relied upon the holding in City of Newport to assert that a plaintiff was not entitled to receive punitive damages from a municipality in § 1983 case. 810 F.2d 594, 598-99 (1987).

48 . 42 U.S.C. § 1983.

49 . Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir.2003).

50 . Humes v. Gilless, 154 F.Supp.2d 1353, 1357 (W.D.Tenn.2001).

51 . Hills v. Kentucky, 457 F.3d 583, 587 (6th Cir.2006).

52 . Jefferson v. Lewis, 594 F.3d 454, 459-60 (6th Cir.2010) (citations omitted).

53 . Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir.2009) (citing Pearson v. Callahan, — U.S. —, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009)).

54 . Chappell, 585 F.3d at 907.

55

56 . Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989).

57 . Floyd v. City of Detroit, 518 F.3d 398, 405 (6th Cir.2008) (Graham, 490 U.S. at 395, 109 S.Ct. 1865).

58 . Jefferson, 594 F.3d at 461 (citations omitted).

59 . Graham, 490 U.S. at 396, 109 S.Ct. 1865.

60 . Id. at 396-97, 109 S.Ct. 1865.

61 . Anderson v. Creighton, 483 U.S. at 641, 107 S.Ct. 3034.

62 . Morrison v. Board Of Trustees Of Green Tp., 583 F.3d 394, 401 (6th Cir.2009).

63 . Beans Aff. 3; Sturgeon Aff. 3.

64 . Beans Aff. 2; Sturgeon Aff. 2.

65

66

67

68 . Id. at 3.

69

70

71 . Use of Force Form, ex. 5 to Pl.’s Resp.

72 . Smith Aff. ¶¶ 2, 3.

73 . Id. ¶¶ 4, 5.

74 . Swatt Aff. ¶¶ 6, 7.

75 . Id. ¶ 2.

76 .Id. ¶ 3.

77 . Id. ¶ 4.

78

79

80 . Monday v. Oullette, 118 F.3d 1099, 1104 (6th Cir.1997).

81 . Id. Because the deputies in the case at bar need not have probable cause to believe that Plaintiff had committed a crime, it is immaterial whether Plaintiff was actually holding Swatt in a headlock when the deputies made contact with them. Although the Court finds that this fact is disputed, it does not alter the Court's conclusion that the deputies acted reasonably to gain Plaintiff's compliance for his own safety as well as the safety of Ms. Swatt who was pregnant at the time, the deputies themselves, and the paramedics responding to the 911 call.

82 . Beans Aff. 3.

83 . Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir.2004) (use of pepper spray on autistic arrestee excessive where officers continued to spray after arrestee was in handcuffs); Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir.2008) (use of 33 baton strikes, chemical spray after arrestee in handcuffs, use of combined weight to hold arrestee down, all of which resulted in death of arrestee, excessive).

84 . Beans Aff. ¶ 7; Sturgeon Aff. ¶ 7.

85

86

87 . Id. .

88

89 . Id. ¶ 9

90 . Swatt Aff. ¶ 5.

91 . Use of Force Form, ex. 5 to Pl.'s Resp. The Court notes that Plaintiff filed a motion to amend his complaint to name Micah McNinch as a defendant in this action (D.E. # 15) on March 19, 2010.

92 . Pl.'s Med records, ex. 2 to PL's Resp., Mar. 19, 2010.

93 .Champion, 380 F.3d at 902-03 (collecting cases about use of force including baton strikes after suspect was no longer a threat or resisting); Jones, 521 F.3d at 559-60 (suspect struck 33 times with baton during arrest without being given the chance to comply).

94 . Baker v. City of Hamilton, 471 F.3d 601, 607-08 (6th Cir.2006).

95 . Alkhateeb v. Charter Township of Waterford, 190 Fed.Appx. 443, 452-53 (6th Cir.2006) (pointing gun at head and kneeling on non-resisting suspect’s neck after handcuffs applied excessive).

96 . Shreve v. Jessamine County Fiscal Court, 453 F.3d 681, 687 (6th Cir.2006) (no justification for “jumping up and down on [arrestee's] back with a knee ... for around fifteen minutes”).

97 . Morrison, 583 F.3d at 407-08.

98 . Phelps v. Coy, 286 F.3d 295 (6th Cir.2002).

99 . Mortison, 583 F.3d at 404-05.

100 . Ashbrook v. Boudinot, No. C2-06-140, 2007 WL 4270658, at *6 (S.D.Ohio Dec. 3, 2007) (describing the “legion” of cases in this Circuit where officers were justified in using minimal force to gain control over resisting suspects) (citations omitted).

101 . Lee v. Hefner, 136 Fed.Appx. 807, 812-13 (6th Cir.2005).

102 . Beans Aff., 3; Sturgeon Aff. 3.

103

104 . Wilson v. Morgan, 477 F.3d 326, 344 (6th Cir.2007). See also Jones v. Reynolds, 438 F.3d 685 (6th Cir.2006) (“Accordingly, whether it was the policy of the department not to stop drag races occurring in Detroit (as Jones claims) or whether state law prevented the department’s intervention (as the City claims) makes no difference to the outcome of this dispute. That the officers did not violate Denise Jones’ constitutional rights eliminates any potential derivative liability of the City.’’).