MEMORANDUM OPINION AND ORDER
JOHN G. HEYBURN, II, District Judge.
Plaintiff, William Scherzinger, brought this action seeking recovery against Defendants in their individual and official capacities arising from an incident that occurred in the booking room of the Louisville/Jefferson County Metro Corrections facility ("Metro Corrections facility"). Plaintiff asserts a number of federal claims under 42 U.S.C. § 1983 and state law claims against the following Defendants: Louisville/Jefferson County Metro Government, Mark Bolton, Michelle Doane, William McFarland and Jason Burba. The Defendants still present in this action have separately moved for summary judgment on all claims. Presently, the Court addresses Defendants McFarland and Burba's ("Officer McFarland" and "Officer Burba") separate motions for summary judgment together as the same analyses applies similarly to both.
This lawsuit stems from a relatively brief incident that occurred shortly after 3:00 p.m. on January 6, 2010 at the Metro Corrections facility. On that day, the Louisville Metro Police took Plaintiff into custody pursuant to a bench warrant at 1:00 p.m. It is not disputed that he was under the influence of alcohol at this time.
Upon arrival to the Louisville Metro Department of Corrections facility ("Metro Corrections facility") around 1:30 p.m., officers directed Plaintiff to sit in the booking area. At 3:00 p.m., the corrections officers overseeing the booking area changed shifts. On that day, Officers McFarland and Burba were second shift officers. During this transition, the booking floor was described as backed-up, noisy and chaotic. The parties have remarkably different accounts as to precisely what happened next. A surveillance video taken from inside the booking room does little to clarify was happened.
Plaintiff alleges that shortly after the shift change, Officer McFarland told the detainees in the booking area to be quiet, shouting, "shut the fuck up." Someone on the booking floor, though Plaintiff adamantly maintains it was not him, responded "you shut the fuck up." Officer McFarland then asked who made the comment. At that moment, Plaintiff raised his hand. Plaintiff contends that he raised his hand only to ask to use the restroom. He testifies that simultaneous to the moment he raised his hand, Officer McFarland grabbed him and Officer Burba began hitting him with a closed fist. Right away, Officer Doane came over and began spraying mace at Plaintiff. During the incident, he testifies that he never exchanged words with the Officers, and does not recall the Officers asking him to stand up and move to a holding cell.
Officers McFarland and Burba contend that upon arrival to the booking floor, the scene was loud and disruptive. Officer McFarland made several loud announcements directing detainees on the booking floor to sit down and be quiet. He denies using any profanity in the announcements. Officers McFarland and Burba claim that in response, an inmate in the booking area yelled, "shut the fuck up." When Officer McFarland asked who made the comment, Plaintiff raised his hand and the Officers perceived this as Plaintiff identifying himself as the person that made the comment.
Officers McFarland and Burba approached Plaintiff, who they recall was intoxicated and loud, and asked him to stand up and go to a holding cell. They contend that Plaintiff said something intimating that if they wanted him to stand up, they would have to get him up. The Officers then reached down to take Plaintiff's arms, but Plaintiff pulled Officer McFarland toward him and said, "if I get up I'll fucking fight you." Allegedly, Plaintiff then started swinging his arms; he grabbed Officer McFarland by the face and attempted to strike Officer Burba. Officer Burba responded by hitting the inmate with his fist a number of times. Seconds later, Officer Doane approached and sprayed Plaintiff with mace.
Once subdued, the Officers handcuffed Plaintiff and escorted him to a holding cell. A nurse cleaned Plaintiff's eyes and examined him for injuries. After three hours in a holding cell, the officers released Plaintiff back to the booking floor to be processed into jail.
The parties do not dispute the events taking place shortly after the incident. Command Officer Sergeant Darrell Goodlett ("Sgt. Goodlett") reviewed a video of the incident and found that the force used by the Officers was proper and justified pursuant to the Metro Correction facility's Use of Force policy. During the incident, Officer McFarland knew that he was hit in the face, but was unsure of who hit him, either Officer Burba or Plaintiff. After a review of the tape, Sgt. Goodlett advised Officer McFarland that Plaintiff intentionally grabbed Officer McFarland's face, and he recommended that Officer McFarland file a Uniform Citation charging Plaintiff with Assault III, assault of a police officer. Officer McFarland states that it was Sgt. Goodlett who actually filled out the Uniform Citation; he just simply signed his name. The Uniform Citation was completed and filed on the day of the incident, January 6, 2010. Plaintiff spent fourteen days in incarceration due to this felony charge. The Jefferson District Court later dismissed the Assault III charge, but did not state the explicit reason for dismissal in the court record.
Several months later, Plaintiff filed criminal charges of Assault IV and Official Misconduct against Officers McFarland and Burba. After a trial in Jefferson District Court Case No. 10-M-011343, the jury acquitted both Officers of the Assault IV charges. Additionally, the jury acquitted Officer Burba as to the Official Misconduct charge. Officer McFarland was found guilty of Official Misconduct and fined $100.
Following the incident, the Metro Corrections Department investigated the matter and terminated both Officers. After an appeal, the Officers participated in an arbitration hearing; the arbitrator sustained their grievances. The arbitrator concluded that neither Officer McFarland nor Officer Burba used excessive force, and therefore, should not have been discharged for their conduct during the incident in question. Both Officers were reinstated as corrections officers, though Officer McFarland was told not to report to work as he faced other grounds for termination. Officer McFarland is currently appealing that decision.
Plaintiff has advanced federal and state law claims against Officers McFarland and Burba in both their official and individual capacities. Pursuant to 42 U.S.C. §1983, the federal claims allege violations of Plaintiff's Fourth, Eighth and Fourteenth Amendment rights. Plaintiff asserts state law claims of negligence, intentional and negligent infliction of emotional distress, battery, assault, false imprisonment, malicious prosecution and abuse of process.
Officers McFarland and Burba move for summary judgment on all claims, which entitles a party to summary judgment where "the movant shows that 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). The moving party bears the initial burden of showing that no dispute exists as to any material fact or that the nonmoving party cannot prove an essential element of its case for which it has the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once accomplished, the nonmoving party can overcome summary judgment by controverting the moving party's arguments with specific facts. Matsushita Electrical Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Court need not accept unsupported or conclusory allegations. Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003). However, the Court will view the record evidence in the light most favorable to Plaintiff, the nonmoving party. Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 339 (6th Cir. 2010).
The summary judgment analysis is somewhat different when a defendant raises the affirmative defense of qualified immunity:
In ruling on a motion for summary judgment based on the defense of qualified immunity, the existence of a disputed, material fact does not necessarily preclude summary judgment. Even if there is a material fact in dispute, summary judgment is appropriate if the Court finds that-viewing the facts in the light most favorable to the plaintiff-the plaintiff has failed to establish a violation of clearly established constitutional law.
Woosley v. City of Paris, 591 F.Supp.2d 913, 918 (E.D. Ky. 2008) (citing Saucier v. Katz, 533 U.S. 194 (2001); Dickerson v. McClellan, 101 F.3d 1151, 1158 (6th Cir. 1996)).
Plaintiff advances all the claims against Officers McFarland and Burba in their official capacities as Metro Corrections officers and individually. The Court will address the individual capacity claims first, and then evaluate the official capacity claims.
Officers McFarland and Burba seek summary judgment on all individual capacity claims on the grounds that qualified immunity shields them from liability for any violation of an individual's federal and state rights. The Court will separately address the federal and state law claims advanced, because the qualified immunity analysis and the claims asserted are slightly different under federal and state law.
"To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law." Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1998)). Neither party disputes that the Officers were acting under the color of law.
Concerning the first prong of a 42 U.S.C. § 1983 claim, "plaintiff bears the burden of showing that the defendant's conduct violated a right so clearly established that a reasonable official in that position would have clearly understood that he or she was under an affirmative duty to refrain from such conduct." Barrett v. Steubenville City Sch., 388 F.3d 967, 970 (6th Cir. 2004) (citing Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir. 1992). In this action, Plaintiff advances claims for excessive force, wrongful arrest and deliberate indifference. The sources of constitutional protection against such wrongs are found in the Fourth, Eighth and Fourteenth Amendments. The Court will assess whether the Officers violated a clearly established right of Plaintiff secured by these Amendments in the following sections.
Plaintiff claims that Officer McFarland and Burba violated his constitutional rights to be free from the use of excessive force and cruel and unusual punishment, as guaranteed by the Fourth, Eighth and Fourteenth Amendments. "In addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force. Graham v. Connor, 490 U.S. 386, 394 (1989). "Which amendment applies depends on the status of the plaintiff at the time of the incident, whether free citizen, convicted prisoner, or something in between." Phelps v. Coy, 286 F.3d 295, 299 (6th Cir. 2002) (citing Gravely v. Madden, 142 F.3d 345, 348-49 (6th Cir. 1998)).
Though the Fourth and Eighth Amendments are "the two primary sources of constitutional protection against physically abusive governmental conduct, " Graham, 490 U.S. at 394, for the reasons that follow, the Court finds that the Fourteenth Amendment governs these circumstances. The scope of Fourth Amendment protection depends in part on whether the individual was arrested pursuant to a warrant or not. Concerning the latter, the Fourth Amendment "protects pre-trial detainees arrested without a warrant through completion of their probable cause hearing." Aldini v. Johnson, 609 F.3d 858, 860 (6th Cir. 2010). As to those arrested pursuant to a warrant, the breadth of Fourth Amendment's protection is reduced, see id. at 867, n.8 and only lasts during the actual seizure of the individual. See Phelps, 286 F.3d at 300 (holding that "the Fourth Amendment reasonableness standard governs throughout the seizure of a person: [t]he seizure that occurs when a person is arrested continues throughout the time the person remains in custody of the arresting officer'") (quoting McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir. 1988)). The Eighth Amendment protects those convicted of a crime from the infliction of cruel and unusual punishments. Id. at 299.
During the incident at issue, Plaintiff was being held in the booking room pending completion of the booking process for an outstanding warrant, but after his arresting officer surrendered him to the Metro Corrections facility. He had not been convicted of the offense for which he had been arrested. See Complaint, ECF No. 1, ¶ 20. Therefore, neither the Fourth nor Eighth Amendment apply. See Lanman v. Hinson, 529 F.3d 673, 681 (6th Cir. 2008) (stating that when the Fourth and Eighth Amendment do not apply, the "more generally ...