Irvin v. City Of Shaker Heights

809 F.Supp.2d 719 (2011)

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Nature of the Case

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Facts

P was walking home and pushing his two-year-old daughter on a tricycle. P saw his former brother-in-law, Nance, in a passing vehicle and began a conversation. Nance handed P his business card. Aware of the police car behind Nance, D suggested that he pull off the main street and onto 154th Street. Nance did so and the two resumed their conversation. Officer Mastnardo, was driving that police car accompanied by his canine partner. He turned as well and drove past P and Nance, and then made a U-turn. Mastnardo maintains that as he approached, he saw a hand-to-hand transaction between the two men. Mastnardo got out of his car. P maintains that Mastnardo approached Nance's car with his gun drawn and that the dog left the police car at the same time. Mastnardo maintains that he did not draw his gun until he reached the front of Nance's car, just a few feet from P after he determined that P was not complying with his instructions and might pose a threat. He states that he released the dog from his vehicle by remote control later in the interaction. Mastnardo told Nance to place his hands on the steering wheel, and Nance complied. P says he forcefully questioned Mastnardo's actions in pulling his weapon and allowing his police dog twice to approach P's daughter. P claims Mastnardo told him he was under arrest before there was any physical contact. Mastnardo maintains that P was uncooperative and argumentative. The parties disagree about whether P's hand was in his pocket at any point. A physical altercation ensued. Mastnardo sharply pushed P in the chest in order to secure P's cooperation in removing his hand from his pocket as instructed. He says that P struck him in the shoulder and neck area. Mastnardo says he disengaged to call for faster backup, holstered his weapon, and only then summoned his police dog for assistance. Mastnardo claims P pushed the tricycle into him, tried to punch him, and the two men grappled as the tricycle, with P's daughter strapped into it, fell to the side. Mastnardo asserts that the dog bit P in accordance with its training, in order to protect the officer, and that P repeatedly beat the dog's head against the ground, causing a broken tooth and other injuries. Mastnardo asserts that the several efforts to subdue P, using precisely aimed strikes to the body and a sleeper hold, had only marginal success. P alleges that Mastnardo hit him in the chest, that the two men never 'tussled,' and that he never struck Mastnardo. P states that he was attacked and bitten by the police dog. P said he had a tug-of-war with the dog as he tried to prevent the dog from biting him, and he maintains that Mastnardo struck him in the head from behind, knocking him on top of the dog. P alleges that several other officers, Emlaw and Pizon, arrived at the scene and began 'hitting, kicking, and stomping him.' P remembers being assaulted by Det. Carlozzi, who also allegedly dismissed his expression of concern about his daughter with the words 'fuck her.' P remembers Sgt. Allison being at the scene but alleges no specific actions by him. P is not certain but believes McCandless and Cpl. Gozelanczyk were involved in the alleged beating as well. P acknowledges that he continued to struggle with all the officers while attempting to reach his daughter. All the backup officers describe an intense struggle to subdue P. After his arrest, P asked for medical help and received some aspirin, until several days later at the county jail. Gozelanczyk avers that he asked P if he needed medical assistance, but P declined. The county doctor, a week later, told P that since the wounds were not infected, they would heal without incident. Mastnardo had injuries after the struggle that led to his not being cleared to return to full duty until early February 2006. P was charged with felonious assault on a police officer, assault on a police dog, and child endangerment. P was unable to post bond and was imprisoned from July 2005 until February 2006. A jury found P not guilty on all felony charges; after a nolo contendere plea, he was found guilty of a misdemeanor count of child endangerment. A compact disc containing surveillance footage from the front of a public works building showed P, Nance, and Mastnardo approaching the scene of the incident but, because of its orientation, could not have captured any of the actual encounter. Sometime between P's trial and discovery in this action, the CD disappeared from the case file and could not be located. P sued Ds. P claims that Ds violated his Fourth, Fifth, Eighth, and Fourteenth Amendment rights. Ds moved for summary judgment.