Steven Ondo v. City of Cleveland

795 F.3d 597, 2015 FED App. 0175P, 2015 U.S. App. LEXIS 13474, 2015 WL 4604860
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 3, 2015
Docket14-3527
StatusPublished
Cited by118 cases

This text of 795 F.3d 597 (Steven Ondo v. City of Cleveland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Steven Ondo v. City of Cleveland, 795 F.3d 597, 2015 FED App. 0175P, 2015 U.S. App. LEXIS 13474, 2015 WL 4604860 (6th Cir. 2015).

Opinions

BATCHELDER, J., delivered the opinion of the court in which COOK, J., joined, and SUTTON, J., joined in part. SUTTON, J. (pg. 612), delivered a separate opinion concurring in all but Parts III.B and III.C and in the judgment.

OPINION

ALICE M, BATCHELDER, Circuit Judge.

Plaintiffs Steven Ondo and Jonathan Simcox were arrested in their temporarily shared residence by Cleveland police officers on April 8, 2011, on allegations of felonious assault on a police officer. The arrest occurred in the early morning when Plaintiffs were still in their boxer shorts, and police refused their demands to retrieve additional clothing, instead issuing them jumpsuits at some point after Plaintiffs arrived at the police station. Plaintiffs have repeatedly changed their stories since the arrest. And in this case — the second lawsuit arising from the arrest— Plaintiffs allege that the officers violated their Fourth Amendment rights by repeatedly striking them. Plaintiffs, who are homosexual, further claim that the offi[601]*601cers violated their rights under the Fourteenth Amendment Equal Protection Clause by forcing them to remain in their boxer shorts. Plaintiffs also claim that several of these actions constitute intentional infliction of emotional distress under Ohio law. Most of these allegations were pleaded only against the officers as a group, and Plaintiffs did not amend their pleadings as additional facts purportedly came to light. Instead, when Defendants moved for summary judgment, Plaintiffs filed affidavits based upon “personal knowledge and belief’ with their opposition to summary judgment, claiming specifically — for the first time — which officer allegedly committed each act. The district court granted Defendants’ motion to strike these affidavits, explaining that the court did not know which statements were based solely on personal knowledge, as required by the Federal Rules of Civil Procedure, and which statements were based only upon belief. The district court then held that without those affidavits, the remaining record did not contain sufficient evidence to permit Plaintiffs’ claims to survive Defendants’ motion for summary judgment.

We hold that whether to strike in whole or in part affidavits based upon “personal knowledge and belief’ is within the sound discretion of the district court, and that the district court did not abuse its discretion here. We also hold that, construing in the light most favorable to Plaintiffs the record that remains without the affidavits, Defendants are entitled to judgment as a matter of law because Plaintiffs’ arguments fail on the merits. We therefore AFFIRM the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

A.

At approximately 2:00 AM on April 2, 2011, Steven Ondo and Jonathan Simcox were returning home after several hours of drinking alcohol, and got into a heated argument outside their apartment building. A neighbor came out to confront them, at which time Simcox told him to “F* * * off.” An altercation ensued involving all three men, during which the neighbor identified himself as an off-duty police officer. Later that night police came to Plaintiffs’ door and arrested them in their apartment. Plaintiffs spent two nights in jail and were treated for minor injuries. Several days later, arrest warrants were issued for Plaintiffs for felonious assault on a police officer. On April 8, 2011, at 7:00 AM, SWAT Team officers with the Cleveland Police Warrant Team arrived at Plaintiffs apartment in Cleveland. This ten-man team comprises eight patrol officers under the command of two senior officers, Lieutenant Timothy Gaert-ner and Sergeant Daniel Galmarini. After entering Plaintiffs’ apartment building through the unlocked front door, Officer William Johnson encountered Ondo in the stairwell, informed Ondo of the arrest warrant, and handed Ondo to other officers to handcuff. Johnson then encountered Sim-cox in the stairwell, handcuffed him, and handed him over to other officers on the second floor. Ondo and Simcox were both agitated and repeatedly asked why they were being arrested. The officers then exited the building, keeping Plaintiffs on the lawn for several minutes as they prepared to load them into a paddy-wagon van to travel to the next warrant location.

Jesse Simcox — the brother of Jonathan — had been sleeping in Ondo’s apartment that night and went downstairs to investigate the commotion, where he found officers and Plaintiffs. Plaintiffs claim the officers were “pushing [them] around” and punched them repeatedly in the face, and repeatedly uttered anti-homosexual slurs. Plaintiffs allege that although the officers allowed Jesse Simcox to fetch shoes for [602]*602Plaintiffs, the police denied Jesse Simcox the opportunity to get pants for them, and thus they were forced to go to jail in their underwear, because, as officers allegedly told them, “faggots don’t wear pants in jail.” Plaintiffs alleged a barrage of slurs, such as one officer’s saying, “It’s a house full of fags here.” Plaintiffs originally alleged that they were forced “to wear only their underwear for over a day,” later changing their story to claim they were not issued jumpsuits until after dinnertime. While in jail, neither Plaintiff requested or received any medical care, or made any medical report to jail staff. Moreover, no injuries are visible in Plaintiffs’ booking photos.

The police denied Plaintiffs’ allegations. Gaertner and Galmarini were never named as defendants in the litigation, and insist that each Plaintiff, when detained, was immediately placed under a supervisor’s observation and control. Gaertner and Gal-marini swore during their depositions that at no time did they observe any mistreatment or slurs. Gaertner did not know anything about a request for pants, while Galmarini said he made the decision to keep Plaintiffs in their boxer shorts because Plaintiffs were agitated (though not resistant), and because the officers were executing a warrant for the alleged assault of an officer, so the supervisors decided for officers’ safety to remove Plaintiffs from the apartment setting and convey them to jail as quickly as possible. Contrary to Plaintiffs’ claims, their booking photos prove conclusively that they were promptly issued jumpsuits once they arrived at the jail.

B.

Plaintiffs’ initial arrest occurred on April 2, 2011, and the second arrest followed on April 8, 2011. On January 18, 2012, Plaintiffs filed suit against the City of Cleveland and several of its officers in federal district court, asserting claims under 42 U.S.C. § 1983 for violations of their constitutional rights, as well as various state law claims. Plaintiffs later filed an amended complaint that the district court dismissed on August 27, 2012, for failure to allege sufficient facts to support the counts in the amended complaint. Among other things, the court held that Plaintiffs’ alleged facts did not satisfy the standard for municipal liability. On April 5, 2013, Ondo and Simcox filed the current § 1983 suit against seventeen defendants: the City of Cleveland, Officer Clifford Kime, Officer Tintlenot, Officer Cavanaugh, Officer Kean, Sergeant Elias Diaz, Officer Park, Officer Livingston, Officer Rojas, Officer Freeman, Officer Cryt-zer, Officer William Johnson, Officer Sanchez, Officer Toomey, Corrections Officer Dennis Barack, Corrections Officer Ro-well, and Corrections Officer Robinson.

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Bluebook (online)
795 F.3d 597, 2015 FED App. 0175P, 2015 U.S. App. LEXIS 13474, 2015 WL 4604860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steven-ondo-v-city-of-cleveland-ca6-2015.