Court Docs Detail Kelly Brinson's Death
Court Docs Detail Kelly Brinson's Death
Court Docs Detail Kelly Brinson's Death
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NO. 1:10-CV-00424
OPINION & ORDER
Background
On January 17, 2010, the decedent, Kelly Bernard Brinson,
voluntarily
submitted
himself
to
the
University
Hospital
for
medical help (doc. 59). He was suffering from hand pain, paranoid
schizophrenia, bi-polar disorder, delusions, and other related
Law
Enforcement
Defendants
Zacharias,
Weibel,
Reeme,
his
taser
and
discharged
his
taser
three
times
(Id.).
physically
rushed
Mr.
Brinson,
lunged
at
him,
and
Mr.
Eventually,
Brisnon
after
experienced
deploying
psychotic
their
tasers,
agitation
Law
(Id.).
Enforcement
dangers
to
physiologically
or
metabolically
compromised
Kelly
Brinson
II,
individually
and
as
Courie v. Alcoa
Wheel & Forged Products, 577 F.3d 625, 629-30 (6th Cir. 2009),
quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
cases
implausible.
that
are
impossible
as
well
as
those
that
are
when the plaintiff pleads facts that allow the court to draw the
reasonable inference that the defendant is liable for the conduct
alleged.
admonishment
to
construe
the
plaintiff's
claim
and
allege
Wright,
more
Miller
than
&
bare
Cooper,
assertions
Federal
of
legal
Practice
and
745 F.2d 1101, 1106 (7th Cir. 1984), quoting In Re: Plywood
Antitrust Litigation, 655 F.2d 627, 641 (5th Cir. 1981); Wright,
Miller & Cooper, Federal Practice and Procedure, 1216 at 121-23
(1969).
Defendants)
should
be
dismissed
pursuant
to
Rule
to
dismissal
pursuant
to
Rule
12(b)(6)
as
to
the
facts
sufficient
to
claim
that
the
Medical
Defendants
that
the
utilization
of
public
services
such
as
law
state
action
(Id.,
citing
Lansing,
202
F.3d
at
831).
actual
policy,
practice,
or
custom
used
by
the
Medical
court emphasized the fact that there was a prearranged role of the
police in effectuating the policies of the private parties (doc.
71., citing Lansing, 202 F.3d at 821; Wickersham v. City of
Columbia, 481 F.3d 591 (8th Cir. 2007)). Plaintiff alleges that
under this standard, Plaintiffs plausible allegations meet the
standard for showing a sufficiently close relationship between the
Medical Defendants and the state, pointing to the Aggressive
Patients and Use of Security Policy (Policy) that was jointly
developed by Defendants Liska, a private hospital employee, and
Ferrara,
public
police
chief
(doc.
71).
Plaintiff
further
Cincinnati
Police
Department
officers
regarding
the
Cause
Survey
relied
on
in
Plaintiffs
Memorandum
in
in
the
Plaintiffs
complaint
does
not
provide
the
factual
Discussion
Court
has
developed
three
tests
for
determining
the
existence of state action: (1) the public function test, (2) the
state compulsion test, (3) the symbiotic relationship or nexus
10
test. See Lindsey v. Detroit Entertainment, LLC, 484 F.3d 824, 828
(6th Cir. 2007). Here, the Plaintiff contends that the Medical
Defendants
could
be
state
actors
pursuant
to
the
symbiotic
sufficiently
close
relationship
between
Medical
Defendants and the State such that the Medical Defendants could be
state actors for purposes of 1983. Plaintiff contends that the
University Hospitals Aggressive Patients and Use of Security
Policy was developed jointly by Defendants Lee Ann Liska, a
private hospital employee, and Eugene Ferrara, Director of Public
Safety for the University of Cincinnati (doc. 71; doc. 66). Both
Defendant Liska and Defendant Ferrara are listed on the document,
and the caption for Responsibility: reads Psychiatry Services
and UC Police/Security (doc. 66). Plaintiff contends that this
11
Next,
the
policy
sets
out
procedure
for
screening
12
request that Peace Officers assume control of the patient when less
restrictive interventions have failed (Id.). Moreover, the Policy
explains that a clinical staff member will remain present to
provide clinical support during a Peace Officer intervention and
that the University of Cincinnati Police Department will consult
with the clinical staff to make a decision regarding criminal
charges and physical removal of a patient (Id.). In this clinical
setting, clinicians are permitted to step aside and allow the
police to take the lead on patient control, under any conditions in
which they are required to exercise their police powers (Id.).
The
Policy
further
suggests
joint
public-private
the
Policy,
Process
Improvement,
which
states
that
the
13
the Policy itself sets out a role for the clinical staff to assess
the use of Devices of Force which, according to the same policy, is
in the exclusive purview of the Peace and Security Officers. Such
coordination of the health care providers assessment of the use of
Devices of Force further indicates a joint action or nexus between
the Police Department and the Medical Defendants.
In light of Section 8 of the policy, which sets out a
procedure for process improvement, the Court need not rely on the
For Cause Survey in assessing the plausibility of the Plaintiffs
claims. Accordingly, the Court does not rule on
Defendants Rule
In
Wickersham,
the
court
found
that
non-profit
14
Center
Authority,
783
F.2d
1,
(1st
Cir.
1986)).
In
constitute
state
action
15
on
the
part
of
the
private
corporation.
See
id.
at
3-4.
Similarly,
in
our
case,
the
unwanted
speech
activities
on
festival
grounds.
See
Defendants
mischaracterize
the
UCPDs
involvement
in
staff
initially
directing
the
Security
Officers
who
respond and remaining present when the Security Officers are called
16
role
for
the
police
as
found
in
this
case.
See
Conclusion
For the foregoing reasons, the Court DENIES Medical
SO ORDERED.
Dated: June 21, 2011
17