Robert Shreve v. Franklin Cnty., Ohio

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0028p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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ROBERT SHREVE et al.,
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Plaintiffs,
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No. 13-3119
MICHAEL REED, Individually,
Plaintiff-Appellant, ,>
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v.
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Defendants-Appellees. N
FRANKLIN COUNTY, OHIO et al.,

Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:10-cv-00644; 2:11-cv-00261; 2:11-cv-00415; 2:12-cv-00070.
Edmund A. Sargus, Jr., District Judge.
Decided and Filed: February 6, 2014
Before: BOGGS, CLAY, and GILMAN, Circuit Judges.

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COUNSEL
ON BRIEF: Noure Alo, HARRISON ALO, ATTORNEYS AT LAW, Columbus, Ohio,
for Appellant. Mary Jane Martin, FRANKLIN COUNTY, OHIO PROSECUTOR’S
OFFICE, Columbus, Ohio, for Appellees.
GILMAN, J., delivered the opinion of the court, in which BOGGS, J., joined.
CLAY, J. (pp. 18–34), delivered a separate dissenting opinion.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. This case arises out of a putative class
action against Franklin County, Ohio, its sheriff Zachary Scott, and 14 of the sheriff’s
deputies for allegedly using excessive force against detainees in the county jail and for
violating the privacy of detainees through strip searches. Settlements were reached with

1
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 2

all the plaintiffs other than Michael Reed, leaving Reed as the only detainee whose
claims are presently before us. Reed alleges that the deputies used excessive force
against him, in violation of the Eighth and Fourteenth Amendments to the United States
Constitution, when they subdued him with a Taser while he was in custody. He also
argues that the county failed to train the deputies on the proper use of Tasers, thereby
creating a policy and practice of abuse.

The defendants moved for summary judgment, with the individual defendants
claiming qualified immunity and all defendants denying any constitutional violation.
After determining that “no rational fact finder could conclude that the defendant deputies
acted with conscience-shocking malice or sadism towards Mr. Reed during either the
Cell Incident or the Hospital Incident,” the district court granted the defendants’ motion.
For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

Reed’s claims arise out of two incidents that both occurred on January 29, 2009.
In the first incident (the Cell Incident), which took place inside Reed’s cell at the
Franklin County Corrections Center II (FCCC II), the sheriff’s deputies were unable to
handcuff Reed due to his resistance and twice used a Taser to subdue him. The second
incident (the Hospital Incident) occurred later that day at the Mount Carmel West
Hospital Emergency Room. There, a deputy used a Taser on Reed after Reed lunged at
the deputy.

1. The Cell Incident

The genesis of the events leading to Reed’s detention began in the early 1990s
when Reed was involved in a motorcycle accident. As a result of the accident, Reed
suffers from seizures. In August 2008, Reed had a seizure while walking down the street
in Columbus, Ohio. Emergency personnel arrived and tried to take Reed to the hospital,
but Reed violently resisted. Reed was taken into custody and charged with assaulting
a peace officer.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 3

The Franklin County Common Pleas Court found Reed not guilty by reason of
insanity in December 2008 and ordered him committed to the Twin Valley Behavioral
Healthcare Forensic Unit. But because the Twin Valley facility did not have space for
Reed, he was still at FCCC II in January 2009.

On January 29, 2009, Reed suffered a seizure in his cell. Several sheriff’s
deputies entered the cell and attempted to handcuff Reed in order to transport him to a
nearby hospital for medical treatment. In their efforts to handcuff Reed, the deputies
used a Taser on him twice. The entire incident is captured on video. Neither party
contests the video’s admissibility or its completeness in portraying the relevant events.
Instead, the parties dispute whether the video shows that the deputies violated Reed’s
constitutional rights by using excessive force.

The video shows Reed sitting on the floor of his cell, apparently disoriented, with
his hands raised and a cut above his left eye. As the recording begins, the deputies tell
Reed four times to “Put your hands behind you.” The deputies explain to Reed that they
are “going to put some cuffs on you for your safety and ours.” Reed then lowers his
hands slightly, and a deputy takes Reed’s left hand, moves it behind Reed’s back, and
places one of the handcuffs on that hand.

But as the deputy tries to take Reed’s right hand and attach it to the other
handcuff, Reed pulls the hand back and holds it across his chest. Deputies then coax
Reed to sit up, but Reed twists to his left, leans back, and begins groaning. While this
is taking place, the deputies tell Reed four more times to put his hands behind his back.
Now lying on the floor on his back, Reed again grasps the cuff on his left hand with his
right. Twice more the deputies tell Reed to put his hands behind his back. They also tell
Reed that he is “going to get Tased” if he does not cooperate and, four times, that it will
hurt. The deputies then tell him three more times to “let go of the cuff.” At the same
time, a deputy again tries to pull Reed’s hands apart and finish handcuffing him.

During this time, the deputies were aware that Reed’s loose handcuff posed a
threat to their physical safety. One stated that he considered the loose handcuff “a major
danger.” Another said that the open handcuff presented a “sharp [and] jagged edge” and
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 4

that people had been killed from open handcuffs used as a weapon. This deputy had
been trained never to lose control of an inmate with a loose handcuff.

Unsuccessful in all their efforts, the deputies step back from Reed and a different
deputy volunteers to “get his cuff.” Two deputies try to pry Reed’s hands apart, but are
unable to do so. Reed then crawls towards the officers, at which point a deputy uses a
Taser on Reed. Reed falls onto his back and begins groaning and shaking in pain. A
deputy then instructs Reed, “Don’t fight anymore.”

Recovering from the shock, Reed reaches towards the deputies and says “OK,
OK, OK.” Reed again raises his hands in the air. The deputies instruct Reed “put your
hands behind your back” eight times. But Reed mumbles something unintelligible and
then says “please.” Reed continues to hold his hands in front of him and says “please,
please, please, please.” Three deputies again attempt to grab Reed’s hands and secure
the right handcuff on him, but are unsuccessful.

A deputy then uses the Taser on Reed a second time. Reed is told that they need
to handcuff him so that they can take him out of the cell for medical treatment. One asks
him “Do you want to get shocked again? Say no. Say no.” Even after using a Taser
twice, three deputies struggled to get the handcuff on Reed’s right hand. Approximately
two minutes after entering the cell, the deputies were finally able to secure the handcuff.

Reed continued to thrash about, even with both hands handcuffed behind his
back. After five deputies held Reed down and made three further commands to “stop
resisting,” the deputies finally managed to subdue Reed’s thrashing on the cell floor.
The deputies were then able to secure leg irons on Reed and walk him out of his cell.

2. The Hospital Incident

According to the deposition testimony of Deputy James Dishong, he and Deputy
Matthew Carter drove Reed to Mount Carmel West Hospital after Reed was secured.
Deputy Dishong’s account of what happened at the hospital is uncontested in the record;
no other depositions or record evidence speak to the incident.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 5

Dishong testified that he and Carter took Reed to the hospital and eventually into
a small examination space bordered by a wall and curtains where Reed was seen by a
nurse practitioner. In the examination space, Dishong removed Reed’s handcuffs and
used them to attach Reed’s leg irons to the bed rail, giving Reed approximately a five-
foot radius of movement. The examination itself took place without incident.

Dishong, Carter, and Reed were waiting for the paperwork to be completed when
Carter stepped out to use the restroom. As soon as Carter was gone, Reed turned to his
left and began muttering. Dishong asked Reed if everything was all right. Reed
continued muttering and squatted on the bed. Dishong told Reed to “lay back down,”
but Reed did not heed Dishong’s command. He instead asked Dishong: “Do you want
a piece of me?”

Dishong again instructed Reed to “lay back” or he would “have to be forced to
tase you.” At that point Reed lunged toward Dishong with his hands raised. Dishong
Tased him, the probes striking Reed’s right shoulder and left leg. Reed struck the wall
and fell to the floor.

B. Procedural background

In September 2012, the defendants moved for summary judgment on Reed’s
individual claims. Reed timely responded, but did not file any affidavits or additional
proof in support of his Brief in Opposition. The district court granted summary
judgment for all the defendants. Canvassing the record, the court found no evidence that
they had acted with the requisite intent—“maliciously and sadistically for the very
purpose of causing harm”—to violate Reed’s Fourteenth Amendment rights. See Darrah
v. City of Oak Park, 255 F.3d 301, 306 (6th Cir. 2001) (setting forth the standard for
liability under the Fourteenth Amendment).

Reed argues on appeal that the district court erred because it “relied on the
Defendant’s [sic] narration of facts” and thus “failed to view the facts in the light most
favorable to the non[-]moving party.” His brief offers an alternative narration of the
facts, relying on the video and his Second Amended Complaint. He claims that the
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 6

“officers could have handcuffed Mr. Reed without the use of a Taser. Their utilization
of the Taser in this instance was a clear violation of department policy relating to the
usage of Tasers.” The defendants respond that the district court correctly determined
that Reed identified no genuine dispute of material fact, that Reed’s claims arise under
the Fourteenth Amendment, and that the court correctly found that Reed suffered no
constitutional violation.

II. LEGAL STANDARD

A. Operative pleading

Before we analyze the substance of Reed’s appeal, one procedural point warrants
clarification. Reed’s brief filed in this court cites extensively to his Second Amended
Complaint. But Reed’s Third Amended Complaint superseded his Second Amended
Complaint when the magistrate judge granted Reed’s Motion to Amend the Complaint.
See 61B Am. Jur. 2d Pleading § 789 (“An amended pleading that is complete in itself
and does not refer to or adopt a former pleading as a part of it supersedes or supplants
the former pleading.”). Accordingly, any reliance that Reed places on his Second
Amended Complaint is unavailing and should instead shift to his Third Amended
Complaint. This matters little, however, because the evidence in the record, not the
pleadings, governs whether a party has raised a genuine dispute of material fact
sufficient to survive a motion for summary judgment. See Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986).

B. Summary judgment

“We review the district court’s grant of summary judgment on qualified
immunity grounds de novo.” Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013).
Summary judgment is proper where “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). No
genuine dispute of material fact exists where the record “taken as a whole could not lead
a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus., Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Ultimately the court evaluates
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 7

“whether the evidence presents a sufficient disagreement to require submission to a jury
or whether it is so one-sided that one party must prevail as a matter of law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). The court must draw all reasonable
inferences in favor of the nonmoving party. Burgess, 735 F.3d at 471.

A party asserting that a fact is genuinely disputed may not rely on the pleadings
to establish that fact. Rule 56(c)(1) of the Federal Rules of Civil Procedure provides that

[a] party asserting that a fact . . . is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or other
materials.

That is, a party must “go beyond the pleadings.” Celotex, 477 U.S. at 324. “A dispute
is ‘genuine’ only if based on evidence upon which a reasonable jury could return a
verdict in favor of the non-moving party.” Gallagher v. C.H. Robinson Worldwide, Inc.,
567 F.3d 263, 270 (6th Cir. 2009) (emphasis added).

In Scott v. Harris, 550 U.S. 372 (2007), the Supreme Court addressed the role of
video evidence at summary judgment. The Court held that “[w]hen opposing parties tell
two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Id. at 380.

In that case, the plaintiff Harris claimed that the defendant police officer, Scott,
used excessive force when he bumped Harris’s speeding car with his police cruiser,
ultimately rendering Harris a quadriplegic. Id. at 375. Harris contended that when Scott
rammed his car, Harris was in full control and that the roads ahead were clear, so that
the jury could have found Scott’s use of force excessive. Id. at 375–76. The Supreme
Court disagreed, observing that “[f]ar from being the cautious and controlled driver the
lower court depicts, what we see on the video more closely resembles a Hollywood-style
car chase of the most frightening sort, placing police officers and innocent bystanders
alike at great risk of serious injury.” Id. at 380. Accordingly, the Court determined that
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 8

Harris’s “version of events is so utterly discredited by the record that no reasonable jury
could have believed him.” Id. It thus held that the lower courts “should have viewed
the facts in the light depicted by the videotape.” Id. at 381.

Scott’s holding is twofold. First, Scott stands for the proposition that witness
accounts seeking to contradict an unambiguous video recording do not create a triable
issue. Id. at 380-81. Second, Scott reaffirmed the holdings of Matsushita and Anderson
that, in disposing of a motion for summary judgment, a court need draw only reasonable
inferences in favor of the nonmoving party; it need not construe the record “in such a
manner that is wholly unsupportable—in the view of any reasonable jury—by the video
recording.” Marvin v. City of Taylor, 509 F.3d 234, 239 (6th Cir. 2007); see also Green
v. Throckmorton, 681 F.3d 853, 859 (6th Cir. 2012) (holding that the court should
“view[] the facts in the light depicted by the videotape,” and that “[t]he central issue is
whether the evidence . . . is so one-sided that one party must prevail as a matter of law”)
(internal quotation marks omitted). This court has also clarified that there is “nothing
in the Scott analysis that suggests that it should be restricted to cases involving
videotapes.” Coble v. City of White House, 634 F.3d 865, 868–69 (6th Cir. 2011).

III. RELEVANT CONSTITUTIONAL STANDARD

A. Substantive basis for Reed’s claims

Before analyzing the evidence in this case, we first address the substantive basis
for Reed’s claims. Reed pleaded his claims under 42 U.S.C. § 1983. Section 1983
provides that

[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law . . . .

Reed claims that the deputies violated his rights under either the Eighth or Fourteenth
Amendments to the United States Constitution.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 9

Typically, the Fourteenth Amendment’s Due Process Clause protects pretrial
detainees from excessive force that amounts to punishment, Leary v. Livingston Cnty.,
528 F.3d 438, 443 (6th Cir. 2008), and the Eighth Amendment protects convicted
prisoners from “unnecessary and wanton infliction of pain,” Graham v. Connor, 490
U.S. 386, 398 n.11 (1989) (internal quotation marks omitted). The district court
determined that Reed’s situation—awaiting transfer to a mental-health facility after
being found not guilty by reason of insanity—“d[id] not fit squarely into any of these
categories.” But citing this court’s decision in Lanman v. Hinson, 529 F.3d 673, 680–81
(6th Cir. 2008), the district court held that the Fourteenth Amendment applied to Reed.

Lanman clarified that

[i]f the plaintiff was a convicted prisoner at the time of the incident, then
the Eighth Amendment deliberate indifference standard sets the standard
for an excessive force claim. But if the plaintiff was a free person, and
the use of force occurred in the course of an arrest or other seizure, then
the plaintiff’s claim arises under the Fourth Amendment and its
reasonableness standard.

Id. at 680 (citations omitted). Of particular significance for the present case is
Lamman’s insight that “[t]he Fourteenth Amendment is the source of a pretrial
detainee’s excessive force claim because when a plaintiff is not in a situation where his
rights are governed by the particular provisions of the Fourth or Eighth Amendments,
the more generally applicable Due Process Clause of the Fourteenth Amendment
provides the individual with protection against physical abuse by officials.” Id. at
680–81. But “[n]otwithstanding the Due Process Clause’s broader applicability, we
remain cognizant of the fact that if a constitutional claim is covered by a specific
constitutional provision, such as the Fourth or Eighth Amendment, the claim must be
analyzed under the standard appropriate to that specific provision, not under the rubric
of substantive due process.” Burgess v. Fischer, 735 F.3d 462, 473 (6th Cir. 2013)
(internal quotation marks omitted).

The difference is this: An excessive-force claim under the Eighth Amendment
requires that the plaintiff show that force was not “applied in a good-faith effort to
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 10

maintain or restore discipline,” but instead applied “maliciously and sadistically to cause
harm.” See Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6th Cir. 1995). But an excessive-
force claim under the Fourteenth Amendment operates on a sliding scale. Generally, to
constitute a Fourteenth Amendment violation, an official’s conduct must “shock[] the
conscience.” Burgess, 735 F.3d at 473.

When officials respond to “a rapidly evolving, fluid, and dangerous
predicament,” id. (internal quotation marks omitted), the Fourteenth Amendment’s
excessive-force standard is the same as the Eighth Amendment’s: “[T]he plaintiff must
show that the defendant acted maliciously and sadistically for the very purpose of
causing harm rather than in a good faith effort to maintain or restore discipline.” Id.
(internal quotation marks omitted). But “[w]here defendants are afforded a reasonable
opportunity to deliberate . . . [,] their actions will be deemed conscience-shocking if they
were taken with deliberate indifference towards the plaintiff's federally protected rights.”
Id. (alteration in original) (internal quotation marks omitted).

This state of culpability is clearly set out in Darrah v. City of Oak Park, 255 F.3d
301 (6th Cir. 2001):

[I]n situations where the implicated government actors are afforded a
reasonable opportunity to deliberate various alternatives prior to electing
a course of action . . . , their actions will be deemed conscience-shocking
if they were taken with deliberate indifference towards the plaintiff’s
federally protected rights. In contradistinction, in a rapidly evolving,
fluid, and dangerous predicament which precludes the luxury of calm and
reflective pre-response deliberation . . . , public servants’ reflexive
actions shock the conscience only if they involved force employed
maliciously and sadistically for the very purpose of causing harm rather
than in a good faith effort to maintain or restore discipline.

Id. at 306 (alteration in original) (internal quotation marks omitted); see also Burgess,
735 F.3d at 473 (same). We will therefore evaluate this case according to the Darrah
standard. Accord Youngberg v. Romero, 457 U.S. 307, 314 (1982) (considering “the
substantive rights of involuntarily committed mentally retarded persons under the
Fourteenth Amendment to the Constitution”); Terrance v. Northville Reg’l Psychiatric
Hosp., 286 F.3d 834, 848 (6th Cir. 2002) (holding that “[t]he involuntarily committed
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 11

have greater rights regarding confinement under the Fourteenth Amendment than
criminals are due under the Eighth Amendment”).

B. Qualified immunity

Also at play in this case is the doctrine of qualified immunity. “The doctrine of
qualified immunity protects government officials from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Stanton v. Sims, No. 134 S. Ct. 3, 4
(2013) (internal quotation marks omitted). “Once raised, it is the plaintiff's burden to
show that the defendants are not entitled to qualified immunity.” Burgess, 735 F.3d at
472. In the Sixth Circuit we have generally “use[d] a two-step analysis: (1) viewing the
facts in the light most favorable to the plaintiff, we determine whether the allegations
give rise to a constitutional violation; and (2) we assess whether the right was clearly
established at the time of the incident.” Id. Because we resolve the present case by
affirming the determination that no constitutional violation occurred, we need not
address whether the alleged right was clearly established. See id. (“We can consider
these steps in any order.”).

IV. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS

A. The Cell Incident

The video recording in this case provides sufficient evidence for a jury to find
that the situation in the cell afforded the deputies “a reasonable opportunity to deliberate
various alternatives prior to electing a course of action.” Darrah, 255 F.3d at 306
(internal quotation marks omitted). Reed was warned multiple times that he was “going
to get Tased” if he did not cooperate and that it would hurt. The deputies also tried to
wrestle him to the ground to cuff him several times before the first use of the Taser.
After each attempt, they backed away. And, at one point, a deputy volunteered to “get
his cuff” and other deputies assisted him. These are the kinds of statements that would
permit a jury to infer that the deputies had an opportunity to deliberate before taking the
actions that they did. See McKenna v. Edgell, 617 F.3d 432, 441 (6th Cir. 2010) (“[W]e
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 12

ask the jury to determine whether a set of facts amounted to exigent circumstances.”)
(emphasis in original).

But these same facts also compel the conclusion that the deputies did not act with
“deliberate indifference towards [Reed’s] federally protected rights.” Darrah, 255 F.3d
at 306 (internal quotation marks omitted). That they tried to handcuff him several times
before using the Taser shows that they sought to minimize the Taser’s use. The deputies
also warned Reed that the Taser would hurt and that he did not want to be Tased, which
showed that they were trying to avoid unnecessary harm.

Another crucial factor is the uncontradicted testimony indicating that the deputies
faced an ongoing danger with Reed thrashing about on the cell floor with a loose
handcuff. The deputies had been trained never to lose control of an inmate with a loose
handcuff because they knew that it could be used as a weapon. Under these
circumstances, even if Reed was suffering from a seizure and unable to comprehend the
deputies’ statements, Reed could not establish an excessive-force claim under the
Fourteenth Amendment when the deputies used a Taser to subdue him and secure the
handcuffs.

Nothing in the record indicates that the deputies acted for any reason other than
getting medical treatment for Reed following his seizure, a serious medical need to
which indifference would likely have been a constitutional violation in itself. Reed in
fact does not challenge the reasonableness of the deputies’ decision to handcuff
him—for their protection and his—prior to transporting him to the hospital. His
challenge is instead limited to the use of the Taser. But we find no basis to hold that the
deputies’ use of a Taser after several failed attempts to wrestle the handcuffs onto Reed
was “conscience shocking.”

The dissent responds with the point that Reed’s failure to comply was due to him
acting “reflexively” (Dissent at p. 28), implying that Reed’s actions might not have been
intentional. Reed’s intent is irrelevant, however, because the constitutional inquiry
centers on the deputies’ intent, not Reed’s. See Ewolski v. City of Brunswick, 287 F.3d
492, 510 (6th Cir. 2002) (holding that the plaintiff “must demonstrate that the state acted
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 13

with the requisite culpability to establish a substantive due process violation under the
Fourteenth Amendment”) (internal quotation marks omitted) (emphasis added). A jury
would therefore not be entitled to find that the Tasing was done with deliberate
indifference toward Reed’s federally protected rights. Summary judgment was thus
proper on Reed’s claims related to the Cell Incident.

Reed attempts to circumvent this conclusion through bare assertion. In his
response to the defendants’ motion for summary judgment, Reed said only that “[i]t is
clear from the videos and the facts and circumstances of the case that [the deputies] had
an express intent to punish Mr. Reed.” This statement appears without any citation to
the record, as does the entire recounting of events in Reed’s Response. But Rule 56(c)
of the Federal Rules of Civil Procedure requires a party to “go beyond the pleadings”
and identify admissible evidence of the essential elements of his claim. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986). Reed’s complaint does not satisfy this
standard for the simple reason that pleadings are not evidence. Compare Fed. R. Civ.
P. 8 (defining pleadings) with Fed. R. Evid. 401 (defining relevant evidence).

The dissent responds that “[i]n light of all of the evidence, including the video,
a reasonable jury could undoubtedly find that the officers’ use of force shocks the
conscience because it was taken with deliberate indifference toward Reed’s federally
protected rights.” (Dissent at p. 27) But Reed did not cite any materials supporting an
inference that deputies acted with deliberate indifference, and the district court “need
consider only the cited materials.” Fed. R. Civ. P. 56(c)(3). The dissent cannot now
attempt to salvage Reed’s claims by providing record citations that Reed himself failed
to present to the district court.

All of this leaves Reed with nothing more than the argument that we should infer
deliberate indifference from the video recording. But we have seen the recording. It
shows that three deputies tried three times to handcuff Reed before the first use of a
Taser, and they were again unsuccessful before deploying the Taser a second time; it
shows that they instructed him at least a dozen times to put his hands behind his back so
that they could put handcuffs on him; it shows Reed flailing around with a loose
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 14

handcuff; and finally, it shows that they warned him four times that the Taser would
hurt. The deputies’ use of the Taser in this context may have been a miscalculation, but
it does not “shock the conscience.” See Darrah, 255 F.3d at 306.

In reaching the opposite conclusion, the dissent relies on an unpublished opinion
from this court, Eldridge v. City of Warren, 533 F. App’x 529, 533 (6th Cir. 2013), to
draw an illusory distinction between active resistance and mere noncompliance. The
dissent contends that the video recording depicts the latter and that only active resistance
can possibly justify the use of a Taser. This theory has numerous pitfalls. First,
Eldridge is an unpublished opinion that “fails to provide any precedential guidance.”
See United States v. Johnson, 467 F.3d 559, 566 (6th Cir. 2006). This court has
therefore not “recognized an important distinction between noncompliance and ‘active
resistance’” as claimed by our dissenting colleague. (Dissent at p. 28)

Second, even if Eldridge were good law, it is easily distinguishable from Reed’s
case. Eldridge concerned a suspected drunk driver who had driven his car into a
“condominium complex, over a curb, and through patches of grass” before “eventually
[coming] to a halt at a construction area, with further progress stifled by temporary
construction barricades.” 533 F. App’x at 530. Officers approached the driver and
repeatedly ordered him out of his car. When the driver refused to comply, they removed
the car keys and “tugg[ed]” on his arm in an attempt to remove his hands from the
steering wheel. Id. at 530–31. The driver continued responding simply “I’m fine” to the
officer’s commands until one of the officers used a Taser. Id at 531. Under these
circumstances, this court determined that the issue of excessive force was a question for
the jury. Id. at 533.

The deputies here, in contrast, used the Taser only after multiple warnings and
multiple attempts to wrestle Reed’s arms behind his back. Moreover, the deputies
testified that the loose handcuff on Reed’s left hand could have been used as a weapon.
Tasing a struggling detainee with a loose metal handcuff is simply not akin to Tasing a
suspected drunk driver who was doing nothing more than declining to take his hands off
the steering wheel.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 15

One further point distinguishes Eldridge: Eldridge concerned the suspect’s
Fourth Amendment rights because the driver had not yet been arrested. See id. at 532.
Under the Fourth Amendment, a court must determine whether the officers’ conduct was
“objectively reasonable.” See Graham v. Connor, 490 U.S. 386, 397 (1989). Reed,
however, had already been arrested and was in custody at the county jail. As such,
Reed’s claim arises under the Fourteenth Amendment, a standard that is more difficult
for a plaintiff to meet. See Darrah, 255 F.3d at 306 (noting that excessive force under
the Fourteenth Amendment is a “substantially higher hurdle” for the plaintiff to meet
than the “objective reasonableness test of Graham, in which excessive force can be
found if the officer’s actions, in light of the totality of the circumstances, were not
objectively reasonable”) (internal quotation marks omitted).

Moreover, this case is not a reprise of Harris v. City of Circleville, 583 F.3d 356
(6th Cir. 2009). In Harris, police officers had placed Harris in handcuffs with his hands
behind his back. Id. at 360. While one officer told Harris to kneel down, another held
Harris’s hands up, making it impossible for Harris to comply with the command to kneel.
Id. at 361. The officers then forcibly subdued Harris and deployed a Taser. Critically,
the court recognized that “Harris was not doing anything to resist.” Id. The deputies
here, in contrast, used the Taser only after multiple warnings and, more importantly,
multiple attempts to wrestle Reed’s arms behind his back.

We also do not believe that the the deputies were constitutionally required to
exhaust all possible alternatives before using a Taser. Our dissenting colleague proposes
that the deputies could have finished handcuffing Reed in front of his body or waited
until Reed had recovered from the lingering effects of the seizure. The first proposed
alternative raises an impossible hypothetical—one which finds no support in the record,
is not advocated by Reed himself, and cannot be determined from the video recording.
Indeed the recording shows that Reed began thrashing each time the deputies attempted
to secure him, not that he was averse only to placing his hands behind his back.

And requiring the deputies to wait until Reed had fully recovered from the
seizure’s lingering effects would have placed the deputies in an impossible Catch-22
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 16

situation: wait too long and risk being accused of the “unnecessary and wanton
infliction of pain” by their deliberate indifference to Reed’s serious medical needs, see
Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks omitted), or act too
quickly and risk being charged with “deliberate indifference towards the plaintiff’s
federally protected rights,” see Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir.
2000) (internal quotation marks omitted). We decline to put the onus on the deputies to
assess at their risk the seriousness of Reed’s seizure in order to determine whether it
warranted immediate medical treatment. Their decision to use a Taser to subdue Reed
before taking him to the hospital might have been unwise, but it was not
unconstitutional.

B. The Hospital Incident

Likewise, we agree with the district court’s determination that Deputy Dishong
did not violate Reed’s constitutional rights during the Hospital Incident. Dishong
testified that as soon as Carter was gone, Reed turned to his left and began muttering and
squatted on the bed. He told Reed to “lay back down,” but Reed did not heed the
command. Instead, Reed asked Dishong “Do you want a piece of me?” and lunged
toward Dishong with his hands raised. Dishong explained that he had “no way of
retreating” because of the cramped quarters and Reed’s position over him while standing
on the bed. With these considerations in mind, Dishong Tased him.

This testimony does not support the conclusion that Dishong was “afforded a
reasonable opportunity to deliberate,” and Reed offers no evidence of his own. See
Darrah, 255 F.3d at 306 (internal quotation marks omitted). On the record before us,
there can be no dispute that the Hospital Incident was “a rapidly evolving, fluid, and
dangerous predicament which precludes the luxury of calm and reflective pre-response
deliberation . . . .” Id. (internal quotation marks omitted).

In this context, Reed must show that Dishong’s actions “involved force employed
maliciously and sadistically for the very purpose of causing harm rather than in a good
faith effort to maintain or restore discipline.” Id. (internal quotation marks omitted). He
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 17

directs us to no such proof. Absent any evidence in the record that Dishong acted with
malicious or sadistic intent, a jury would not be entitled to so find.

The dissent responds by arguing that Dishong may have violated the county’s
use-of-force policy prohibiting the use of Tasers on inmates who are restrained by leg
irons. But the dissent cites no authority for the proposition that any violation of a
county’s use-of-force policy equates to a constitutional violation. The relevant question,
in other words, is not whether Dishong used his Taser on an inmate restrained by leg
irons, but whether he did so “maliciously and sadistically for the very purpose of causing
harm.” Id. (internal quotation marks omitted). On this question, the evidence is beyond
dispute that he did not. Summary judgment in favor of Dishong was therefore
appropriate.

V. CLAIMS AGAINST FRANKLIN COUNTY

We now turn to Reed’s claims against Franklin County, which rely on Monell
v. Department of Social Services, 436 U.S. 658 (1978). Monell held that “[l]ocal
governing bodies . . . can be sued directly under § 1983 . . . where, as here, the action
that is alleged to be unconstitutional implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by that body’s
officers.” Id. at 690. But “[l]iability against [a local government] arises only if it
violated a constitutional or statutory right through a custom or practice of doing so.”
Hidden Vill., LLC v. City of Lakewood, 734 F.3d 519, 523 (6th Cir. 2013). Because we
conclude that Reed suffered no violation of his constitutional rights, Reed’s claims
against Franklin County fail. His Monell claims are therefore without merit.

VI. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district
court.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 18

_________________

DISSENT
_________________

CLAY, Circuit Judge, dissenting. The majority suggests that Plaintiff
Michael Reed fails “to ‘go beyond the pleadings’ and identify admissible evidence of
the essential elements of his claim,” see Majority at 13 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)); I strongly disagree. Reed’s allegations are
supported by convincing evidence: the video recording of the events that transpired in
Reed’s jail cell and depositions in which the officers admit to thrice tasing a non-
violent individual in the immediate aftermath of a seizure. To bolster its argument
that Reed’s claim rests solely on the pleadings, the majority seems to suggest that
Reed submitted “only” one sentence in response to Defendants’ motion for summary
judgment and failed to cite to any evidence in the record. See Majority at 13. This is
misleading; Reed’s response to Defendants’ motion for summary judgment was
eighteen pages long, and referred repeatedly to the video recording in the record.
Because the majority, like the district court below, misapplies the holding of Scott v.
Harris, 550 U.S. 372 (2007), and by doing so usurps the role of the jury, I
respectfully dissent.

I.

My disagreement begins with the majority’s narration of the facts in this case.
The evidence in the record, including the video, establishes the facts as follows:

As the result of an accident that caused a traumatic brain injury many years
ago, Reed suffers from both tonic clonic seizures (stiffening and rigidity of muscles
followed by rhythmic jerking motions) and complex partial seizures (the person
appears to stare blankly and loses contact with his surroundings, often followed by
chewing movements, mumbling, and unorganized movements). Like many who
suffer from seizures, Reed usually does not recall having the seizure and becomes
confused, disoriented, and fatigued in the aftermath.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 19

In August 2008, Reed had a seizure while walking on the street. Emergency
medical technicians (“EMTs”) responded to the scene, and Reed allegedly became
aggressive and assaultive when an EMT rapidly approached him to try to take him to
the hospital. Instead of receiving medical attention, Reed was charged with
assaulting a peace officer and taken to jail at the Franklin County Corrections Center
II (“FCCCII”).

On December 23, 2008, Judge Michael Holbrook of the Franklin County
Common Pleas Court found Reed not guilty by reason of insanity (“NGRI”) and
ordered Reed to be committed to the Twin Valley Behavioral Healthcare Forensic
Unit. However, due to overcrowding at the behavioral healthcare facility, Reed had
to stay at FCCCII until a bed became available at Twin Valley. Although the court
recognized that Reed did not belong at FCCCII due to his mental health and medical
conditions, Reed was nevertheless sent to FCCCII, where he was treated as a
prisoner.

On January 29, 2009, Reed had a seizure in his jail cell in FCCCII. Deputy
James Jodrey called a “code blue medical,” which signals that an inmate requires
medical attention. See Att. Internal Affairs Report 09-048, Jodrey Statement, ECF
No. 163-1. Corporal Sam Byrd and Deputies Sam Montrose, James Jodrey, Clayton
Kern and Chris Starner (collectively, “officers”) entered Reed’s jail cell in response
to the code blue. They were all aware that Reed had just had a seizure, and that they
were to assist in transporting Reed to the hospital for medical treatment. Id. All of
the officers were also aware that Reed gets disoriented and confused immediately
following a seizure, and that Reed was not in a state to understand or obey their
commands. See Att. Internal Affairs Report 09-048, ECF No. 163-1.

Reed was on the floor of his cell when the five officers entered. Reed was
dazed, confused, and clearly disoriented. See Video at 00:00:00–00:00:29, ECF No.
160. For ten seconds, the five officers shouted rapid commands at Reed, demanding
that Reed put his hands behind his back so that the officers could handcuff him. Id. at
00:00:01–00:00:12. It is clear from the video, and should have been obvious to the
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 20

officers, that Reed did not understand a single word that the officers said. Reed sat
motionless on the floor with his hands up in “surrender” position and stared blankly
at the five uniformed men in his cell. Id.

Although Reed did not put either of his hands behind his back, the officers
attempted to handcuff him anyway. Id. at 00:00:13. Reed did not resist when one
officer tried to put a handcuff on Reed’s left wrist; in fact, Reed barely moved, and
the officer secured Reed’s left wrist without incident. Id. at 00:00:14–00:00:23.
Reed did not respond to the officers’ commands for him to put his right hand behind
his back. Id. at 00:00:23–00:00:29. Reed sat with his hands in front of him,
apparently unaware of what was going on in his post-seizure state. Id. One officer
asked, “Has he not been taking his meds?” Id. at 00:00:24.1 Another officer tried to
grab Reed’s right wrist and pull it behind his body to handcuff him, and Reed lightly
moved his arm forward. Id. at 00:00:26–0:34. When the officer again tried to pull
Reed’s arm behind his back, Reed moved his arm and held it across his stomach and
started to lie back down on the floor. Id. at 00:00:34–00:00:38. The left handcuff
was attached to Reed’s left wrist, and the right handcuff was open. The officers told
Reed to sit up, and one deputy pushed him upright so that Reed was sitting on the
floor, hunched over, with his hands folded in his lap. Id. at 00:00:40. The officers
did not attempt to attach the open handcuff to Reed’s right wrist when both of Reed’s
hands were in front of his body. Instead, two officers grabbed Reed’s arms and
attempted to pull Reed’s hands behind his back. Id. at 00:00:43–00:00:46. Reed then
twisted his torso to the left, falling onto his stomach. Id. at 00:00:46–00:00:49.
Much of the scene is not captured on the video, but approximately three seconds
later, it appears that Reed rolled onto his back and began groaning/shouting “Ahhh!
Ahh! Ahhh!” Id. at 00:00:48–00:00:52. All five officers stood over Reed, shouting
various commands.

At the 52-second mark of the video, we see clearly a red light––the laser used
to aim the X26 taser gun––projected onto Reed’s chest. As Reed lay on his back on
1
Later, another one of the officers asks Reed twice, “Reed, have you been taking your meds?”
See Video at 00:06:08–00:06:12, ECF No. 170.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 21

the floor of his jail cell with his hands across his chest, the officers began shouting at
Reed that he was “going to get tased” and “it [was] gonna fucking hurt bad.” Id. at
00:00:52–00:01:07. Reed continued to lie on the floor without speaking or making
any threatening gestures. Id. at 00:00:52–00:01:07. The officers shouted at Reed and
made one unsuccessful attempt to pry Reed’s hands apart. Id. at 00:01:12–00:01:17.
Again the officers did not attempt to secure the open handcuff, which they could have
done by attaching it to Reed’s right hand when both of Reed’s hands were in front of
his body. Within seconds, Byrd deployed the taser gun, delivering electric shocks
through Reed’s body for about ten seconds. Id. at 00:01:17–00:01:27. Reed began
convulsing on the floor.

After Byrd tased Reed for the first time, Reed sat still with his hands up in
“surrender” position, and he begged groggily, “please, please, please.” Id. at
00:01:29–00:01:38. He appeared startled. The officers continued yelling but Reed
stared blankly at them. Id. In the video, the laser of the taser gun is visible on Reed’s
chest. From 00:01:40–00:01:49, the camera was blocked by various officers standing
in front of the lens, so we cannot see precisely what occurred. It appears from the
video that Reed kept his hands up in front of his body in “surrender” position. Byrd
continued shouting at Reed, as Reed continued to beg “please, please, please,” and
Byrd deployed his taser gun for a second time. Id. at 00:01:49. It appears from the
video that Reed was then lying on the floor and groaning loudly. We can infer from
the audio that the officers were aware that Reed was nearly unconscious because one
of them told Reed to “Wake up!” Id. at 00:02:03, before asking “Do you want to get
shocked again? Say no! Say no!” Id. at 00:02:08.

The deputies then handcuffed Reed behind his back. Id. at
00:02:12–00:02:27. With Reed in handcuffs, one officer commanded Reed to “roll
over!” and Reed obliged. Id. at 00:02:32. All four deputies were crouched over Reed
as he laid face down on the floor with his hands cuffed behind his back. Id. at
00:02:43–00:02:49. The scene is mostly obscured by officers standing in front of his
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 22

video camera, but it appears that the officers secured Reed’s legs with leg irons. Id.
at 00:03:50–00:04:08.

Even after Reed was completely restrained in handcuffs and leg irons and
laying motionlessly on the cell floor, the officers continued to threaten Reed with the
taser gun. Id. at 00:04:30 (“Are you gonna stand up now? Am I gonna have to tase
you again?”). After the deputies pulled Reed to his feet and walked him down the
hall to get medical treatment for a bleeding laceration on his forehead, Reed began to
ask in a dazed voice, “What did I do? What did I do?” Id. at 00:06:20. Even after
Reed was sitting calmly in the holding cell with his hands cuffed behind his back and
his feet secured in leg irons, one of the deputies threatened him: “Don’t move. I don’t
want to have to tase you again.” Id. at 00:07:08.

Deputies Christopher Dishong and Matthew Carter later transported Reed to
the Mount Carmel Hospital West Emergency Room for further examination and
treatment of the lesion on his forehead. Dishong testified that after Reed received
stitches for the cut on his head, Reed was sent to a section of the general emergency
room area. The deputies attached “leg irons” which connected Reed to the hospital
stretcher. According to Dishong’s report, Carter left the room to go to the bathroom,
and Reed squatted on the hospital bed and began to mutter under his breath. There is
no video of this incident, but Dishong claims that he ordered Reed to lie back down
on the bed and warned Reed that he would be tased. Reed did not comply, and
allegedly “lunged” at Dishong (while Reed was still shackled to the bed); Dishong
then tased him. As a result, Reed fell off the bed, struck his head on the wall and
floor, and sustained another head laceration, which required stitches.

Use of an X26 taser gun causes “neuromuscular interruption,” which renders
the subject unable to move and may cause him to fall. See Exhibit Declaration and
Policies, ECF No. 6-1. People tased are especially at risk of injury if they are in a
position where they could fall and suffer an impact injury to the head, are on an
elevated or unstable surface, or are in restraints that incapacitate or immobilize them.
Id.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 23

According to the Franklin County Sheriff’s Office policy (“the Jail Policy”),
Taser guns are to be deployed “to gain control of a violent or dangerous inmate when
attempts to subdue the inmate by conventional tactics have been or are likely to be
ineffective or there is reasonable expectation that it will be unsafe for deputies to
approach within contact range of the inmate.” See Exhibit Declaration and Policies,
ECF No. 6-1. The Jail Policy permits taser deployment in the following
circumstances: self-defense; protection of another inmate or staff; disarming an
inmate under non-lethal conditions; preventing self-harm to an inmate; or controlling
a combative inmate. Id. The Jail Policy specifically states that Tasers should not be
deployed upon persons who are restrained by a mechanical device such as handcuffs,
leg irons, or a restraint chair. Id.

II.

We review de novo the district court’s grant of summary judgment.
Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir. 2009). Summary judgment is
proper “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 [Defendants are] entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c); see also Celotex, 477 U.S. at 323. A genuine issue of material
fact exists if the evidence is such that a reasonable jury could return a verdict for
Reed. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We determine
simply “whether the evidence presents sufficient disagreement to require submission
to a jury or whether it is so one-sided that [Defendants] must prevail as a matter of
law.” Id. at 243. We must not weigh the evidence or make credibility
determinations. Id. at 249; Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900
(6th Cir. 2004). Thus, “the inquiry performed is the threshold inquiry of determining
whether there is a need for a trial—whether, in other words, there are any genuine
factual issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250. If
Reed’s account of the facts “does not require such a suspension of reality that no
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 24

reasonable juror could accept it, that is enough to allow a jury to hear the claim.”
Jones v. Garcia, 345 F. App’x 987, 990 (6th Cir. 2009). That he “may have a
difficult time winning his case does not disable him from trying, at least so far as
Rule 56 is concerned.” Id.; see also Kinzer v. Schuckmann, 850 F. Supp. 2d 785, 794
(S.D. Ohio 2012) (denying summary judgment on the issue of qualified immunity
even where “Plaintiff’s excessive force claim . . . is thin at best”).

In reviewing the district court’s grant of summary judgment, we must adopt
Reed’s version of the facts. Scott, 550 U.S. at 378 (for summary judgment “[i]n
qualified immunity cases, [we usually adopt] . . . the plaintiff’s version of the facts”);
see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986) (we view the evidence and draw all inferences in the light most favorable to
the nonmoving party); White v. Baxter Healthcare Corp., 533 F.3d 381, 390 (6th Cir.
2008). There is an exception to this rule when the plaintiff’s version of the facts is
“blatantly contradicted by the record, so that no reasonable jury could believe it,” Id.
at 380, but this exception is inapplicable to the case at hand.2

Although the video recording of the so-called “Cell Incident” accurately
captures the events that transpired, it “neither proves nor disproves [Reed’s] claim”
because the activity in the video is susceptible to more than one interpretation. Dixon
v. County of Roscommon, 479 F. App’x 680, 682 (6th Cir. 2012). Though the
majority suggests otherwise, Reed’s interpretation of the events on the video is by no
means “blatantly contradicted” by the video evidence. This is especially true because
much of the activity in the video occurred outside of the frame or was otherwise
obscured. Unlike in Scott, where the video recording so discredited the plaintiff’s
version of events that no jury could have believed it, a reasonable jury could believe
Reed after viewing the video in evidence. See Coble v. City of White House,

2
The majority quotes Coble for the proposition that “there is nothing in the Scott analysis that
suggests that it should be restricted to cases involving videotapes.” Majority at 8 (quoting Coble v. City
of White House, 634 F.3d 865, 868–69 (6th Cir. 2011) (internal quotation marks omitted). In Coble, we
considered whether the exception articulated in Scott would apply to an unambiguous audio recording that
blatantly contradicted the plaintiff’s version of the facts, and concluded that it would. This Court has never
indicated that the holding of Scott extends beyond an unambiguous recording of the events in dispute.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 25

634 F.3d 865, 868–69 (6th Cir. 2011); Dixon, 479 F. App’x at 682. Therefore, we
must accept Reed’s interpretation of the video for the purposes of this appeal.

In addition, we “must disregard all evidence favorable to [Defendants] that
the jury is not required to believe.” Champion, 380 F.3d at 900 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000)). In other words,
“the court should give credence to the evidence favoring [Reed] as well as that
evidence supporting [Defendants] that is uncontradicted and unimpeached, at least to
the extent that that evidence comes from disinterested witnesses.” Reeves, 530 U.S.
at 151. The district court should be affirmed “only if reasonable minds could not
come to a conclusion other than one favoring [Defendants].” Id. (quoting Garrison v.
Cassens Transp. Co, 334 F.3d 528, 537–38 (6th Cir. 2003).

Because I view the incidents of January 29, 2009 as a single event––a seizure
followed by three tasings (two in the jail cell and one in the hospital)––I believe that
Reed’s entire claim should proceed to a trier of fact. That there is no video recording
of the so-called “Hospital Incident” is not dispositive where the essential facts are
undisputed: Shortly after Reed had suffered a seizure and received medical treatment
for a head laceration, Dishong deployed his taser gun on Reed while Reed was
shackled to a hospital bed with leg irons. The trier of the facts is entitled to look at
the event in context, and may determine that Dishong’s deposition testimony that
Reed “lunged” at him is not credible.

III.

1. Individual Capacity Claims

Constitutional Violation

I agree with the majority and the district court that Reed is entitled to
constitutional protection under the Fourteenth Amendment. The test applied by the
Supreme Court to determine whether governmental conduct violates an individual’s
substantive due process rights is whether the alleged conduct “shocks the
conscience.” Claybrook v. Birchwell, 199 F.3d 350, 359 (6th Cir. 2000) (citing
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 26

County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998)).3 As the majority
recognizes, we apply different standards of “conscience-shocking” depending on the
circumstances in which the governmental action occurred. See Darrah v. City of Oak
Park, 255 F.3d 301, 306 (citing Lewis, 523 U.S. at 850–51). Where, as here,
implicated government actors “are afforded a reasonable opportunity to deliberate
various alternatives prior to electing a course of action . . ., their actions will be
deemed conscience-shocking if they were taken with ‘deliberate indifference’
towards the plaintiff's federally protected rights.” Claybrook, 199 F.3d at 359
(quoting Lewis, 523 U.S. at 852–53).4 I agree with the majority that “[t]he video
recording in this case provides sufficient evidence for a jury to find that the situation
in the cell afforded the deputies a reasonable opportunity” for deliberation. Majority
at 11.

I therefore note that the district court applied an incorrect legal standard.
The district court erroneously stated that “the defendant officers’ conduct violates
[]Reed’s constitutional rights only if they tased him maliciously and sadistically for
the very purpose of causing harm rather than in a good faith effort to maintain or
restore a safe environment.” Reed need not show that the deputies acted for the very
purpose of causing him harm; only “in a rapidly evolving, fluid, and dangerous
predicament” would Reed need to show that the officers had such nefarious intent.
The law requires only that Reed cite evidence to support his allegation that the
officers were deliberately indifferent to his right to be free from excessive force. To
satisfy this low burden, Reed points to the video recording of five officers brutally
tasing him for failing to comply with their rapid-fire commands a mere moment after
he had suffered from a massive seizure. Reed has undoubtedly met his burden.

3
The Supreme Court has also recognized that conduct that meets the deliberate indifference
standard of the Eighth Amendment would violate the Fourteenth Amendment, since the protections
afforded under the Fourteenth Amendment are at least as great as those under the Eighth Amendment. City
of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (citing Bell v. Wolfish, 441 U.S. 520,
535 n.16 (1979)); see also Lewis, 523 U.S. at 850.
4
This Court has also recognized that the Fourteenth Amendment, “[a]t the very least. . . protects
a[n individual] from the use of excessive force that amounts to punishment,’” Lanman v. Hinson, 529 F.3d
673, 680 (6th Cir. 2008) (quoting Phelps v. Coy, 286 F.3d 295, 300 (6th Cir. 2002)).
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 27

Furthermore, I disagree with the majority’s assertion that “there can be no
dispute” that the so-called “Hospital Incident” was a “rapidly evolving, fluid, and
dangerous predicament which precludes the luxury of calm and reflective pre-
response deliberation.” Majority at 16. The Supreme Court has applied a heightened
standard in limited circumstances: namely a prison riot and a sudden high-speed
automobile chase. See Whitley v. Albers, 475 U.S. 312 (1986) (prison riot is a rapidly
evolving, fluid, and dangerous predicament); Lewis, 523 U.S. 833 (1998) (high-speed
automobile chase is a rapidly evolving, fluid, and dangerous predicament). Even
under the facts alleged in Dishong’s deposition, we can hardly say that the situation
was a “rapidly evolving, fluid, and dangerous predicament” on the same level as a
prison riot or high-speed chase. When Reed squatted on the hospital bed and began
to mutter, he was shackled to the hospital bed with leg irons; Dishong had time to
deliberate his course of action. Even if Reed did appear to “lunge” at Dishong, the
situation presented limited danger, if any, to anyone other than Reed since Reed was
physically restrained by the leg irons.

In concluding that Defendants did not violate Reed’s constitutional rights,
the majority impermissibly relies on its own subjective interpretation of the video as
well as Defendants’ one-sided account of the facts. This analysis is improper on
summary judgment. In light of all of the evidence, including the video, a reasonable
jury could undoubtedly find that the officers’ use of force shocks the conscience
because it was taken with deliberate indifference toward Reed’s federally protected
rights.

In applying the Fourteenth Amendment standard to the use of tasers, “courts
have focused on [the individual’s] conduct when the taser was applied, the frequency
and force with which it was applied, and the overall security needs of the institution.”
Spears v. Cooper, No. 1:07-CV-58, 2009 WL 838179 (E.D. Tenn. Mar. 30, 2009)
rev’d in part sub nom. Spears v. Ruth, 589 F.3d 249 (6th Cir. 2009). With regard to
the first factor, the evidence supports Reed’s allegation that Reed was not actively
resisting the officers’ efforts to restrain him. Though Reed did not comply with the
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 28

officers’ rapid-fire orders commanding him to put his hands behind his back, Reed’s
noncompliance alone is insufficient to justify the officers’ use of force. See Harris v.
City of Circleville, 583 F.3d 356, 361 (6th Cir. 2009) (holding that an arrestee who
did not comply with officer’s command to “kneel down” was not resisting); Eldridge
v. City of Warren, 533 F. App’x 529, 533 (6th Cir. 2013) (holding that a person who
remained in his vehicle despite officers’ repeated commands for him to exit the
vehicle was not actively resisting, and officers’ use of a Taser gun to subdue the
person was “objectively unreasonable” and violated the Fourth Amendment). This
Court has recognized an important distinction between noncompliance and “active
resistance.” Id. at 535 (“noncompliance alone does not indicate active resistance;
there must be something more”); Harris, 583 F.3d at 361 (“Other than not complying
. . . [plaintiff] was not doing anything to resist. [Plaintiff] does not appear to be
resisting on the videotape.”).5 Based on the evidence presented, a reasonable jury
could conclude that Reed was merely noncompliant, and was not actively resisting.
Since the video supports both parties’ proffered interpretations of Reed’s behavior,
there is a genuine issue of fact regarding whether or not Reed was resisting. We must
resolve this factual dispute in Reed’s favor for the purposes of our analysis of the
issue on appeal.

The evidence also supports Reed’s allegation that Reed did not pose a
substantial risk to the safety of himself, the officers, or third parties. The majority
claims that Reed has not offered any evidence to contradict Defendants’ testimony
that the open handcuff presented a substantial safety risk; I disagree. The majority
fails to consider that the video itself casts doubt on Defendants’ testimony, since it is
clear in the video that the officers had ample opportunity to secure the open handcuff
on Reed’s right hand in front of Reed’s body, and they did not do so. It was
foreseeable that an individual in Reed’s disoriented state might reflexively pull his
arms forward when an officer attempts to pull them behind his back, yet the officers

5
Eldridge is not the only case in this Circuit to recognize a distinction between active resistance
and noncompliance. Though the majority may believe that Reed’s case “is not a reprise of Harris v. City
of Circleville,” Majority at 15, it cannot deny that Harris recognizes a distinction between resistance and
noncompliance.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 29

nevertheless decided to handcuff Reed’s left wrist while Reed’s hands rested in front
of his body and then tried to pull Reed’s hands behind his back.6 If a loose handcuff
presented such a threat to the officers’ safety, then the officers would have first
positioned both of Reed’s hands behind his body before handcuffing one of Reed’s
wrists. Alternatively, the officers could have waited until Reed “came to” before
trying to handcuff him at all. Or, under the circumstances (having not done either of
the above), the officers could have simply secured the loose handcuff by attaching the
open handcuff to Reed’s right wrist in front of Reed’s body (which would have
neutralized the purported safety risk). I raise these possible alternatives not because I
believe that the deputies were constitutionally required to exhaust all possible
alternatives before using a taser, but because the fact that the deputies passed up these
opportunities casts doubt on the credibility of the officers’ professed belief that the
open handcuff posed any substantial threat to their safety. While Reed could
certainly benefit from expert testimony purporting to refute the testimony submitted
by Defendants, such testimony is not required for Reed to survive a motion for
summary judgment where a reasonable interpretation of the video contradicts
Defendants’ testimony. There is a genuine issue of material fact as to whether or not
the open handcuff presented a substantial risk to the officers’ safety, and we must
resolve this factual dispute in Reed’s favor for the purposes of our analysis of the
issue on appeal.

The majority asserts that certain “facts” compel its conclusion that none of
the deputies acted with deliberate indifference: namely, that the officers tried to
handcuff Reed “several times” before using the taser and that the officers warned
Reed that the taser would hurt. While I agree that these facts could support a jury’s
decision that the officers’ conduct did not rise to the level of a constitutional

6
The majority mischaracterizes the argument of the dissent. See Majority at 13. The dissent does
not suggest that the fact that Reed’s movement was unintentional automatically renders the officers’
conduct conscious-shocking. To the contrary, I agree with the majority that the constitutional inquiry
centers on the deputies’ intent, and not Reed’s intent. However, for the reasons I have explained above,
the fact that Reed’s movement was reflexive and foreseeable is relevant to our inquiry regarding the
deputies’ intent. I question the deputies’ intent—and the integrity of their belief that the open handcuff
was “a major danger” that could have been used as a deadly weapon—where the video clearly shows that
the officers passed up several opportunities to prevent, or at least neutralize, the “dangerous situation”
presented by an open handcuff.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 30

violation, I strongly disagree that these facts compel such a conclusion. On the
contrary, the video offers considerable support for the conclusion that the officers
acted with deliberate indifference to Reed’s federally protected rights (or,
alternatively, that the officers used excessive force that amounted to punishment).
Specifically, the record shows that the officers were fully aware that Reed had just
suffered from a serious seizure, and they were supposed to help him to get medical
assistance; yet, within fifty-two seconds of entering the cell, Byrd was already
preparing to use his taser gun on Reed. Although Reed was clearly dazed and
discombobulated, the officers did not make any genuine effort to help Reed snap
back to alertness or wait until Reed was responsive before trying to handcuff him.
Instead, not much more than one minute after Reed suffered a seizure, Byrd brutally
subdued Reed with a taser gun. The video shows the officers treating Reed more like
a dog than a human––commanding him to “sit up” and “roll over,” and punishing him
at the first sign of non-obedience. Had Reed been in the hospital instead of a jail cell,
there is no question that the officers’ behavior would be considered conscious-
shocking.

I also disagree with the majority’s suggestion that “wait[ing] until Reed had
fully recovered from the lingering effects of the seizure before taking him to the
hospital for medical treatment” would have placed the officers “in an impossible
Catch-22 situation: wait too long and risk being accused of the ‘unnecessary and
wanton infliction of pain’ by their deliberate indifference to Reed’s serious medical
needs, or act too quickly and risk being charged with ‘deliberate indifference toward
the plaintiff’s federally protected rights.’” Majority at 15–16. This alleged Catch-22
is a false dichotomy. There is a wide range of constitutionally acceptable behavior
that neither involves excessive force nor unnecessary delay of access to medical
treatment. The officers certainly could have waited more than fourteen seconds
before approaching Reed to try to handcuff him while Reed was clearly
discombobulated. Or they could have handcuffed Reed in front of his body, since it
is foreseeable that an individual in Reed’s disoriented state might reflexively pull his
arms forward when an officer attempts to pull them behind his back. Instead, the
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 31

officers shouted rapid-fire commands at a virtually catatonic, non-threatening
individual for twelve seconds before they approached him and tried to “wrestle” him
into handcuffs, and prepared to shock him multiple times with a taser gun less than
forty seconds later.

The majority emphasizes the number of times that the officers shouted
commands and warnings, but their narration obscures the fact that this entire scene
took place in a span of less than eighty seconds. For the first thirty seconds, Reed
stared blankly into space while the officers shouted. Reed made no movement at all.
Reed did not resist (arguably he did not even notice) when the officers placed a
handcuff on his left wrist while both of his hands were in front of his body, and Reed
only began to pull forward when the officers tried to pull Reed’s right arm behind his
back.

The record viewed in the light most favorable to Reed establishes that each
of the officers knew that Reed had just suffered from a seizure, that Reed was not
actively resisting, that Reed did not pose a threat to the officers, and that Reed was
tased three times (twice in the cell, and once in the hospital). The record also
supports the inference that Reed was not “violent or dangerous,” and that the officers’
use of the taser violated the Jail Policy. Although Reed has not offered expert
testimony to refute Defendants’ testimony that the open handcuff presented a
substantial threat to the officers’ safety, Reed can rely on the video to refute this
notion, since the video clearly shows that the officers had ample opportunity to
secure the open handcuff by cuffing Reed’s right wrist in front of his body, and they
did not do so.

With regard to Dishong’s use of the taser, even if we accept as true
Dishong’s testimony that Reed “lunged” at Dishong, the evidence viewed in the light
most favorable to Reed shows that Reed was shackled to a hospital bed in the
aftermath of a seizure and medical operation, and did not pose a substantial risk to
Dishong. The evidence also supports the inference that Dishong’s use of the taser
violated the Jail Policy, which specifically states that tasers should not be deployed
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 32

upon persons who are restrained by leg irons. Moreover, Dishong was aware that
Reed was especially at risk of injury, since Reed was on an elevated, unstable surface
(the hospital bed), in a position where he could fall and suffer an impact injury to the
head (crouching), and was in restraints that immobilized him (leg irons).

A jury could reasonably conclude that the officers’ use of a taser gun on a
non-threatening, mentally ill individual in the immediate aftermath of a seizure
shocks the conscience because it was taken with deliberate indifference toward
Reed’s right to be free from excessive force. At the very least, the evidence
presented raises an issue of material fact as to whether the officers’ behavior shocks
the conscience, and summary judgment on the issue of qualified immunity was
therefore improper.

Clearly Established Right

Each of the officers should have known that his behavior violated Reed’s
constitutional rights. It is well established that the Due Process Clause of the
Fourteenth Amendment protects individuals from abusive government conduct that
“shocks the conscience,” Lewis, 523 U.S. at 834, and from excessive force that
amounts to punishment, see Leary v. Livingston County, 528 F.3d 438, 443 (6th Cir.
2008) (citing Graham v. Connor, 490 U.S. 386, 395 n.10 (1989)), or “unnecessary
and wanton infliction of pain,” Whitley, 475 U.S. at 320–21.

In the context of the Fourth Amendment, we have previously recognized that
“[o]fficers should [know] that the gratuitous or excessive use of a taser violate[s] a
clearly established constitutional right.” Landis v. Baker, 297 F. App’x 453 (6th Cir.
2008) (citing Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993) (“a stun gun inflicts
a painful and frightening blow, which temporarily paralyzes the large muscles of the
body, rendering the victim helpless” and its use without a legitimate reason might
violate the Eighth Amendment)). In applying the Fourteenth Amendment standard
specifically to the use of tasers, “courts have focused on detainees’ conduct when the
taser was applied, the frequency and force with which it was applied, and the overall
security needs of the institution.” Spears, 2009 WL 838179.
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 33

In the case at hand, the evidence viewed in the light most favorable to Reed
establishes that Reed was not actively resisting, that Reed did not pose a threat to the
officers, and that Reed was tased two times in his jail cell. Each of the officers
present in the cell was aware that Reed had a serious medical condition, and that he
had just suffered from a seizure. Nevertheless, within eighty seconds of entering
Reed’s cell in order to transport him to the hospital, Byrd decided to deploy his X26
taser gun, causing “neuromuscular interruption” and a great shock for the disoriented
victim. Byrd did so in spite of the fact that the Jail Policy instructed officers to
deploy taser guns only for self-defense, protection of another inmate or staff,
disarming an inmate under non-lethal conditions, preventing self-harm to an inmate,
or controlling a combative inmate. The evidence, including the video, viewed in the
light most favorable to Reed, establishes that Reed was not threatening, combative, or
armed. Under these circumstances, a reasonable officer should have known that use
of the taser would violate Reed’s due process rights.

Similarly, even if we accept as true Dishong’s testimony that Reed “lunged”
at him, the evidence viewed in the light most favorable to Reed supports the
conclusion that Dishong’s decision to use the taser under the circumstances was made
with deliberate indifference to Reed’s constitutionally protected rights.

In the instant case, Reed’s clearly established constitutional right is the right
to be free from excessive force that “shocks the conscience.” In light of this right, it
was objectively unreasonable for the officers to tase Reed repeatedly when he needed
medical attention and was not actively resisting. Reed has submitted evidence in the
form of deposition testimony and a video recording of part of the incident. After
reviewing this evidence, I believe that it is sufficient to support Reed’s claim that
Defendants’ actions were objectively unreasonable in light of clearly established law.

Additionally, “the fact that only [Byrd and Dishong] pulled the trigger on the
taser does not absolve [the other officers] of liability.” Landis, 297 F. App’x at 464
(citing Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982) (“it is not necessary, in
order to hold a police officer liable under [§]1983, to demonstrate that the officer
No. 13-3119 Shreve et al. v. Franklin Cnty., Ohio et al. Page 34

actively participated in [using force against] a plaintiff”). There is evidence that the
other officers encouraged the use of the taser and made no attempt to thwart the use
of the taser on Reed. A reasonable jury could conclude that the other officers “had
the means and opportunity to prevent the harm” to Reed, and that their failure to do
so was conscience-shocking.

2. Remaining Claims

The district court dismissed Reed’s remaining claims––Reed’s claims against
the officers in their official capacities as well as his claims against Franklin County,
which rely on Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658
(1978)––based on its conclusion that Reed did not suffer a violation of his Fourteenth
Amendment rights. For the reasons discussed supra, I believe that Reed has stated a
constitutional violation, and so dismissal of these claims on this ground was
erroneous.

IV.

For the foregoing reasons, I disagree with the majority, and would reverse
the order of the district court and remand the case for further proceedings consistent
with this opinion.