Campbell v. City of Springboro (788 F. Supp. 2d 637, 2011)

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AS TO THE CLAIMS OF SAMUEL CAMPBELL AND CHELSIE GEMPERLINE; DENYING AS MOOT DEFENDANTS’ MOTION TO STRIKE THE AFFIDAVIT OF PLAINTIFFS’ EXPERT, MICHAEL D’AMICO; and GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO STRIKE THE AFFIDAVIT OF PLAINTIFFS’ EXPERT, KYLE K. HEYEN

SUSAN J. DLOTT, Chief Judge.

In this civil rights action against the City of Springboro, Ohio, City Manager Christine Thompson, Chief of Police Jeffrey Kruithoff, Police Officer Nick Clark, and Jane or John Does, Plaintiffs Samuel A. Campbell and Chelsie Gemperline seek relief for injuries they sustained when they were mauled by the same police dog during the course of their arrests in unrelated incidents. In their Second Amended Complaint, Plaintiffs assert fourteen causes of action under federal and Ohio law. Before the Court are the Motion for Summary Judgment on Behalf of Defendants as to the Claims of Plaintiff, Samuel A. Campbell (Doc. 58) and the Motion for Summary Judgment on Behalf of Defendants as to the Claims of Plaintiff, Chelsie Gemperline (Doc. 59). The Court also considers, to the extent they relate to Defendants’ Motions for Summary Judgment, Defendants motions to strike the affidavits of two expert witnesses upon who opinions Plaintiffs rely.

For the reasons stated below, the Court DENIES as moot Defendants’ Motion to Strike the Affidavit of Plaintiffs’ Expert, Michael D’Amico (Doc. 74), and the Court GRANTS in part and DENIES in part Defendants’ Motion to Strike the Affidavit of Plaintiffs’ Expert, Kyle K. Heyen (Doc. 75). Finally, the Court GRANTS in part and DENIES in part Defendants’ Motions for Summary Judgment. (Docs. 58, 59.) The Court DENIES summary judgment as to Plaintiffs’ claims against Officer Clark for excessive force in violation of the Fourth Amendment, brought under 42 U.S.C. § 1988, and for assault and battery under Ohio law. The Court also DENIES summary judgment as to Plaintiffs’ § 1983 claims for failure to train and/or supervise against the City of Springboro and Chief Kruithoff. The Court GRANTS summary judgment to Defendants as to all remaining claims.

I. BACKGROUND

A. The City of Springboro Police Department Canine Unit

Springboro is a somewhat affluent city with a rather low crime rate. (Kruithoff Dep. 12:2-9.) The Springboro Police Department (SPD) sees only a few violent crimes a year. (Kruithoff Dep. 12:15-19.) Defendant Kruithoff has been Springboro’s Chief of Police since April 2002. (Kruithoff Dep. 4:21-5:1.) In keeping with the size of the town, the SPD is a small police department made up of a staff of approximately thirty people. (Id.) The SPD command staff consists of the Chief of Police, a Lieutenant in charge of Operations, a Lieutenant in charge of Administrative Services, and four Sergeants. During most of the time period at issue in this case, those positions were filled by Chief Kruithoff, Lieutenant Timothy Parker, Lieutenant Jonathan Wheeler, Sergeant Aaron Zimmaro, Sergeant Dan Bentley, and two other sergeants.

In 2002, when Kruithoff became the SPD Chief of Police, the SPD did not have a canine unit. (Clark I Dep. 61:18-20.) Instead, the SPD relied on assistance from other agencies when police dogs were needed for narcotics investigations and tracking purposes. (Kruithoff Dep. 14:22-15:13; Clark Dep. I 63:15-24.) Believing that a canine program could be a useful public relations tool, Kruithoff sent out a department memorandum to see if any officers were interested. (Kruithoff Dep. 13:4-14:21.) The SPD ultimately selected Officer Nick Clark to form the department’s first canine unit. (Kruithoff Dep. 15:14-20; Clark I Dep. 63:3-64:22.) Chief Kruithoff placed Officer Clark in charge of selecting a dog and a training program. (Clark I Dep. 66:18-19.) The only instruction Officer Clark was given as far as choosing a dog was to get a dual purpose dog, meaning a dog that could be trained in both narcotics detection and patrol work. (Id. at 68:14-69:13.) Based on recommendations from another officer and several members of the Miami Valley Police Canine Association, Officer Clark chose a dog named Spike from Lynwood Kennels, a company that specializes in training canines and their handlers for law enforcement purposes. (Id. at 66:20-67:2; Woods Dep. 10:20-23.) The canine unit consisting of Officer Clark and Spike was established in 2005 and operated until the fall of 2008 when it was suspended and subsequently decommissioned.

1. Training and Certification

Lynwood Kennels provided the initial core training — a 300-hour canine handling course that Officer Clark and Spike completed in May, 2005. (Clark I Dep. 67:4-10, 72:12-74:13; Wheeler Aff. ¶3, Ex. A.) After completing that training, Spike and Officer Clark sought state certification. (Clark I Dep. 74:5-75:3.) According to Officer Clark, the State of Ohio requires that canine units be regularly certified by the Ohio Peace Officer Training Commission and the Office of the Attorney General (“Ohio Training Commission”) in order to remain in compliance. (Id. at 110:2-23.)

On May 12, 2005, Officer Clark and Spike received two certificates from the Ohio Training Commission. The first signified completion of evaluations for criminal apprehension, canine control, and canine searches. (Wheeler Aff. ¶ 7, Ex. C.) The second certification signified completion of evaluations for tracking, article search, and the detection of marijuana, cocaine, heroin, methamphetamines, and their derivatives. (Id. ¶ 9, Ex. D.) Both certifications were good for approximately two years. On the same date that they received their initial state certification, Officer Clark and Spike also received accreditation from the North American Police Work Dog Association for narcotics detection and for other skills referred to as “Utility Phases,” including obedience, article search, area search, tracking, building search, and aggression control. (Id. ¶ 5, Ex. B.)

The SPD deployed Spike in the field immediately after he became state certified. (Clark I Dep. 76:10-20.) Officer Clark was responsible for making sure that Spike fulfilled training requirements. (Id. at 82:3-5.) Officer Clark believed that he and Spike were supposed to complete eight hours of maintenance training every other week, to make sure Spike stayed sharp and did not develop bad habits. (Id. at 82:6-83:12; Woods Dep. 35:20-39:12.) Brian Woods, the operator- of Lynwood Kennels and a master trainer, testified that the monthly maintenance training should encompass all disciplines, including narcotics detection, tracking, obedience, bite training, and reasonable force training with a particular focus on any problem areas. (Woods Dep. 36:15-37:12.) Without such training, the dog’s level of obedience may erode overtime and the dog may not respond as well to the handler’s commands. (Id. at 38:7-17.) While Woods recommends that handlers take their dogs through sixteen hours of maintenance training per month, he noted that the amount of monthly training necessary to maintain compliance may vary from dog to dog. (Id. at 38:19-39:15.)

The evidence shows that Officer Clark and Spike attended three training programs in 2006 and 2007. During the summer of 2006, they attended a five-day North American Police Work Dog Convention in northern Ohio. (Clark I Dep. 88:1-17.) On November 17, 2006, they received a certificate of completion of forty hours of advanced canine law enforcement training at the Miami Valley Police Canine Association. (Wheeler Aff. ¶ 11, Ex. E.) They also attended a forty-hour training workshop at Lynwood Kennels sometime in 2006 or 2007. (Clark I Dep. 89:2-20.)

Nonetheless, Officer Clark admitted that he and Spike did not always engage in maintenance training on a regular basis. For example, Spike received no training between September 19, 2007 and October 21, 2007, the date of the Campbell incident. (Clark I Dep. 188:2-23.) Spike also received no training for over thirty days prior to the Gemperline incident, which occurred on October 11, 2008. (Id. at 188:24-189:25.) Officer Clark testified that his supervisors did not allot sufficient time for training although they were aware that Spike’s training was not current. (Id. at 190-193.) Prior to both of the bite incidents at issue in this case, Officer Clark notified his supervisors that he was unable to keep up with the maintenance training and repeatedly requested that they allow him time to attend training sessions, but his requests were denied. (Id. at 190:1-194:10.) At some point, Officer Clark sent a memo to Lieutenant Parker and Lieutenant Wheeler to notify them that his sergeants were not authorizing appropriate training time for him and that they had denied his requests to attend training workshops because they did not want him to work overtime. (Id. at 190:1-20, 199:21-200:8.) After the Campbell incident occurred, Officer Clark continued to complain about his inability to complete the maintenance training. (Id. at 201:17-24.) He gave inconsistent testimony regarding the responses he received. At one point during his deposition, he stated that his supervising sergeants sometimes designated more time for him to train after he complained. (Id. at 199:10-16.) However, when asked if anything in regard to training changed after the Campbell incident, Officer Clark responded “no.” (Id. at 201:17-20.) He also testified that he continued to voice complaints about lack of training time up to the Gemperline incident. (Id. at 201:17-24.)

In addition to failing to keep up with maintenance training, Spike’s state certifications lapsed for several months during the summer of 2007. The renewal deadlines for those certifications were April 28 and May 12, 2007. (See Wheeler Aff. Exs., C, D, H, I; Clark Dep. I 111:18-25.) Spike was not actually re-certified until September 26, 2007. (Wheeler Aff. ¶¶ 17-19, Exs. H, I.) During his deposition, Officer Clark testified that a police dog cannot be in service in Ohio unless the certifications are renewed. (Clark I Dep. 111:14— 17.) However, he interpreted the “renewal due date” posted on the certification forms not as a deadline, but rather as the earliest date upon which renewal can occur:

Q. Do you know why there’s two different renewal dates on those certificates?

A. I have no idea.

Q. Okay. But it was your understanding that both of these needed to be renewed every two years?

A. My understanding is that’s the only time that you can. You can’t have it renewed before that date.

Q. Okay. Meaning you can’t do the work to have it renewed before that date or how does that work when you go to renew?

A. You have to contact the state evaluator. The state evaluator comes to renew your certification and review you, but they will not do it before that date.

(Id. at 110:24-111:13.)

During the lapse in Ohio certification, Spike was deployed in the field approximately ten times. (Clark II Dep. 104:1-11.) Officer Clark testified that within that time period, he notified Chief Kruithoff and Lieutenant Parker that the certifications had expired. (Id. at 104:12-22.) Nonetheless, they decided to continue to deploy Spike. (Id. at 104:23-25.) Spike’s recertification occurred prior to the dates of the two bite incidences at issue in this case.

2. SPD’s Canine Policy

Defendants produced two separate documents that they claim represent the canine policies that were in effect during the period when the SPD was operating a canine unit. The first document is titled “Canine Legal Update and Opinions for Supervisors and Administrators[:] International Association of Chiefs of Police (IACP), Law Enforcement Canine Model Policy” (hereinafter “IACP Policy”). (Brannon Aff. Ex. S17.) Defendants claim that document served as the SPD’s canine policy from the establishment of the canine unit until December 10, 2008, when the SPD adopted a slightly modified version of the IACP Policy as its official canine policy (hereinafter the “2008 SPD Canine Policy”). (See Brannon Aff. Ex. S 1 at 10; Clark I Dep. 104:10-105:4.) The SPD had already suspended the canine program pri- or to adopting the 2008 SPD Canine Policy. Accordingly, to the extent that any policy was in place during the operation of SPD’s canine program, it was the IACP Policy.

Officer Clark testified that during his initial training at Lynwood Kennels, he talked to Chief Kruithoff about the fact that the SPD needed to adopt a canine policy. (Clark I Dep. 41:18-25.) Chief Kruithoff instructed Officer Clark to prepare a policy, and Officer Clark gave Chief Kruithoff the IACP policy. (Id. at 41:23-43:15.) Officer Clark obtained the IACP policy document from the website of an individual who often served as an expert witness in the law enforcement canine field. (Id. at 44:1-18.) He chose that policy because it was not state-specific and because his trainers had recommended the website. (Id. at 44:19-45:1.) He never did any further research to verify that the policy represented the IACP’s current model policy. (Id. at 45:6-46:18.) Nor did he know whether the expert regularly updated his website. (Id.)

It is somewhat unclear whether the IACP Policy was ever actually adopted as the SPD’s official canine policy prior to December 2008. Chief Kruithoff testified that the final step in the SPD’s general procedure for formally adopting a policy is for him to sign the draft policy. (Kruithoff Dep. 54:14-25.) However, that procedure does not appear to have been followed when he initially approved the IACP Policy. Rather, Kruithoff claims that during the establishment of the canine unit, when Officer Clark presented the IACP Policy to him, he and Officer Clark simply agreed that it would be the SPD’s canine policy. (Id. at 55:15-57:5.) Another factor calling into question the status of the IACP Policy is that the document was never actually included in all of the SPD’s policies and procedures handbooks; a copy was . placed in the chiefs manual, but not in the sergeants’ or patrol officers’ manuals. (Clark I Dep. 218:3-24; Zimmaro Dep. 17:1-18:8; Wheeler Dep. 63:13-65:24.) According to Officer Clark, those handbooks would have contained just about all of SPD’s policies with the exception of the canine policy. (Clark I Dep. 218:5-219:15.) Nonetheless, Chief Kruithoff testified that the IACP Policy was in effect at the time of both of the bite incidents that form the basis of this case. (Kruithoff Dep. 57:14-18.) The SPD did not officially adopt the 2008 SPD Canine Policy until after both of those bite incidents occurred and the canine unit was suspended. (Clark I Dep. 104:23-105:4, 106:2-10.)

3. SPD’s Supervision of Canine Unit and Adherence to Policy

Although Defendants maintain that the IACP Policy was considered the policy of the department prior to 2008, the SPD’s actual procedures, particularly with regard to the supervision and training of the canine unit, did not always match up with the standards set in the IACP Policy. For example, the IACP Policy refers both to a “canine team,” which consists.of the “canine handler” and the canine, and a “canine supervisor,” suggesting that the SPD’s own policy required the assignment of someone other than Officer Clark to supervise the canine team. (See Brannon Aff. Ex. S17.) However, Chief Kruithoff never specifically designated any member of his command staff to supervise the canine unit or to ensure that Spike was suitable for duty. (Kruithoff Dep. 22:6-9; Parker Dep. 47:12-19.) Instead, oversight of the canine unit fell to whoever was serving as Officer Clark’s supervising lieutenant and sergeant at any given time. (Kruithoff Dep. 21:17-22:15, 57:22-58:12; Parker Dep. 70:16-71:12.) From the formation of the canine unit until approximately April 2007, Jonathan Wheeler was Officer Clark’s supervising lieutenant. (Wheeler Dep. 25:1-9.) Thereafter, the duty fell to Lieutenant Timothy Parker. The sergeants in charge of Officer Clark during the Campbell and Gemperline incidents were, respectively, Sergeant Dan Bentley and Sergeant Aaron Zimmaro. (Parker Dep. 20:8-18.)

With regard to the canine unit’s general performance, Lieutenant Parker and Chief Kruithoff both testified that there was no formal monitoring system in place. (Parker Dep. 47:12-19, Kruithoff Dep. 28:24-30:25.) However, every time Spike was deployed, Officer Clark had to complete a canine deployment form, which was then reviewed by the SPD sergeants and either Lieutenant Parker or Lieutenant Wheeler. (Parker Dep. 50:2-20; Wheeler Dep. 26:11-27:13.) Officer Clark’s supervisors did not as a matter of course keep track of incidents in which bites occurred and no efforts were made to calculate the percentage of deployments during which Spike bit someone.- (Kruithoff Dep. 28:24-30:25; Parker Dep. 50:21-25.) Instead, they looked into performance issues in the context of particular incidents when problems arose. (Kruithoff Dep. 30:1-5; Parker Dep. 52:5-20.)

With regard to the canine unit’s training and certification, the testimony of Officer Clark and his supervisors, particularly Chief Kruithoff and Lieutenants Wheeler and Parker, reveals that Officer Clark was essentially supervising himself. The IACP Policy states that “[i]t is the duty of the canine supervisor to ensure that basic and in-service training and certification is conducted on a regular basis.” (Brannon Aff. Ex. Ex. S17 at 2.) Despite that language, it does not appear that anyone, aside from Officer Clark, was actually assigned the responsibility to ensure that the canine unit remained in compliance with training and certification requirements. Chief Kruithoff gave conflicting testimony. First, he stated that it was Officer Clark’s responsibility to make sure that Spike received the necessary training. (Kruithoff Dep. 23:21-24:16.) Later, when referred to the IACP Policy language quoted above, he testified that Lieutenants Parker and Wheeler were responsible for ensuring that Spike’s certifications and training remained current. (Kruithoff Dep. 57:22-58:12.) Lieutenant Parker testified that he did not take any independent steps, other than trusting his own memory, to monitor Spike’s certifications or verify that Spike was meeting training requirements. (Parker Dep. 36:4-37:7, 64:19-65:10.) Rather, he relied on Officer Clark to obtain the necessary certifications and training. (Id. at 35:25-36:20; 64:19-65:10.) Similarly, Lieutenant Wheeler testified that Officer Clark oversaw his own training. (Wheeler Dep. 31:2-11.) Lieutenant Wheeler claimed that he did not need to monitor Spike’s certifications because during the time period when he was supervising Officer Clark, the original state certification was still in effect. (Id. at 29:15-30:2.)

The testimony of Officer Clark’s supervisors also reveals that there was little consensus as to whether any regular training and certification was actually required, and if so, what type was required. The IACP Policy contains an entire section dealing with “Team Qualifications and Training” that sets forth general standards for monitoring training activity and certification, such as:

All departmental canines must meet established department certification requirements. Untrained canines may not be used for canine duty.... Failure to participate in or qualify under established training standards will result in de-certification of the team. The team may not be deployed until re-certified.

(Brannon Aff. Ex. S17 at 2.) That section does not set forth specific training or certification requirements, but it implies that such requirements do exist. When asked about their understanding of the training requirements, the common theme expressed by all of Officer Clark’s supervisors was that they were not sure what the requirements were. For example, Chief Kruithoff testified that he did not know if there were specific training requirements for the operation of a canine unit in Ohio. (Kruithoff Dep. 24:17-25.) He stated that he thought there was a recommendation that Spike complete eight hours of training per week, but that he was not sure where the recommendation originated and he did not view it as a requirement. (Id. at 26:1-23. ) Lieutenant Wheeler testified that although Officer Clark told him that he needed to attend two eight-hour training sessions each month, he was not aware that any monthly training was actually required. (Wheeler Dep. 32:12-33:23.) Lieutenant Parker similarly testified that he was not aware of any ongoing training requirements that Officer Clark and Spike were supposed to meet. (Parker Dep. 38:10-12, 40:21-41:19.)

The testimony reveals similar confusion over certification requirements. During Spike’s career as a police canine, he received certifications from the State of Ohio and from the North American Police Work Dog Association. It is not clear whether those certifications were requirements for operation or merely voluntary. Officer Clark testified that state certification was required. (Clark I Dep. 74:5-75:3.) Chief Kruithoff testified that he believed there was a certification requirement, but did not elaborate on what he thought that requirement was. (Kruithoff Dep. 24:17-24. ) Lieutenant Parker testified that he thought state certification was required, while Lieutenant Wheeler characterized state certification as voluntary. (Parker Dep. 37:12-25; Wheeler Dep. 30:7-20.)

As discussed above, there was a several-months long period in 2007 during which Spike’s state certification had lapsed. Officer Clark maintains that he notified Chief Kruithoff and Lieutenant Parker about the lapse in certification and that they knowingly allowed Spike to be deployed during that period. Chief Kruithoff, on the other hand, testified that he was not aware of the lapse and that, had he known, he would have had concerns about deploying Spike. (Kruithoff Dep. 25:1-9, 49:6-16.) Lieutenant Parker testified, as seen in the following excerpt, that he was not sure whether Spike should have been deployed during a lapse in certification:

Q. Should the Clark/Spike team have been deployed in the field if their certifications had lapsed?

A. I don’t know the restraints on that. I don’t know.

Q. Okay. So even though their State of Ohio certificates may have expired, you’re not sure if you could deploy them in the field or not; is that correct?

A. I don’t know if there’s a leave time, if it’s definite. No, sir, I don’t.

Q. Do you know if there’s any limitation on whether or not you can deploy the Clark/Spike team in the field if their training requirements are not being met?

A. I don’t know.

Q. As the lieutenant operations commander, would you think that those are both important things to know?

A. Officer Clark would know all of that and would let us know if he needed certification or training.

(Parker Dep. 38:23-39:21 (objections omitted).) Lieutenant Parker also testified that despite the statement in the IACP Policy that “[t]he team may not be deployed until re-certified,” he was not aware of whether the IACP Policy would allow for the deployment of a canine team during periods when it was not certified. (Id. at 67:17-68:17.)

4. Spike’s Behavior in the Field

Spike was initially trained to function as a bark-and-hold dog rather than a bite- and-hold dog. (Woods Dep. 35:16-19; Clark I Dep. 150:22-151:12.) Woods, the operator of Lynwood Kennels, described the major difference between bark-and-hold and bite-and-hold dogs as follows:

A. The major difference is is[sic] the bark and hold dog is trained that if a person gets up and surrenders, the dog will not engage you. He will literally detain him or bark and hold him until such time as the person either attacks, flees, or is called up back by the handler.

Q. Whereas a bite and hold dog would always engage the person?

A. He would always engage the person.

(Woods Dep. 10:18-23, 17:22-8, 25:3-5; Clark I Dep. 67:6-7.)

Officer Clark’s general understanding of how a bark-and-hold dog should operate appears to be in line with the explanation given by Woods. (Clark I Dep. 151:16-152:7.) However, Officer Clark also testified that while Spike may have been trained in the bark-and-hold approach, he “never had in the field an instance where bark-and-hold would apply to [Spike].” (Id. at 158:1-3.) Officer Clark differentiated training operations from field operations when it came to apprehending suspects. During training scenarios, Spike was released to chase after a fleeing suspect and was trained to stop and bark at the suspect when the handler gave certain verbal commands. (Id. at 159:6-23.) Such scenarios did not actually occur in the field. Instead, if Spike was deployed to locate someone in the field, Officer Clark performed what is known as a “track.” (Id. at 160:5-16.)

According to Officer Clark, there are two different types of tracks, a “missing persons” track, which is done to locate a non-criminal missing person, and a “tactical” or “fugitive” track, which is done to locate a person who has committed a criminal offense. (Clark I Dep. 141:18-142:5.) Spike was not trained to respond differently based on the type of track. (Id. at 147:11-19.) However, Officer Clark used different equipment for a missing persons track than he did for a fugitive track. When doing a fugitive track, Spike wore a harness and a twenty-foot lead. (Clark II Dep. 22:10-23:10.) During a missing persons track, Spike wore a much shorter four-foot leash, which gave Officer Clark more control over Spike’s movement and decreased the likelihood of Spike biting the subject of the search. (Id. at 22:20-23:10,141:9-142:1.)

When asked how he believed a bark- and-hold dog should perform when doing a track, Woods stated that the behavior of the dog would depend entirely on the behavior of the individual being tracked. (Woods Dep. 53:5-21.) If upon being located by the dog, the subject acts or moves in such a way that could be interpreted as a threat or an attempt to flee, the dog will apprehend the subject by biting. (Id. at 53:10-21.) However, if the subject is compliant, gives himself up, and refrains from making any assertive motions, a bark-and-hold dog should just bark and move around the subject to prevent him from fleeing. (Id. at 55:17-57:16, 63:15-65:7, 90:3-91:17.) In contrast, a bite-and-hold dog would be expected to bite the subject of the track regardless of whether - the subject is passive or aggressive when.located. (Id. at 91:21-92:3.)

Officer Clark’s beliefs about how a bark- and-hold dog should perform on a track differ somewhat from Woods’ explanation. Officer Clark appears to view bark-and-hold more as a method to be applied in certain circumstances than as an overall training approach. He testified that the bark-and-hold method simply does not apply in a tracking situation; and he claims he was never trained to use that method during a tracking situation. (Clark I Dep. 160:7-161:2.) In fact, Officer Clark stated that anytime he deployed Spike to perform a fugitive track, there was a likelihood that someone would be bitten. (Clark II Dep. 129:20-130:22.) Officer Clark expected that when doing a fugitive track, even where the subject was passive rather than actively attempting to resist or flee, Spike would bite the subject unless Officer Clark saw the subject and stopped Spike through a verbal command or physical restraint. (Clark I Dep. 144:6-149:20.) Officer Clark claimed that if he saw the subject before Spike got within biting distance, he would shout warnings and would not let Spike engage unless the subject further attempted to resist or evade arrest. (Id. at 145:22-146:3.)

Officer Clark’s supervisors provided inconsistent descriptions of what the bark- and-hold method means and how a bark- and-hold canine is supposed to behave in the field. In line with Woods’ description of how a bark-and-hold dog should react during a track, Chief Kruithoff testified that he believed that Spike was not supposed to bite the subject of .the track if the subject remained still. (Kruithoff Dep. 40:23-41:17.) Rather, he expected Spike to stop and bark unless the subject moved. (Id.) Mirroring Officer Clark’s definition of bark-and-hold, Lieutenant Parker described it as an approach to be applied in specific situations rather than a type of dog or an overall training method. He also stated that the approach would never apply in a tracking situation because it was only used when a dog is deployed off-leash and Spike was always on a leash during tracks. (Parker Dep. 23:2-26:19.) He also testified that he expected a tracking canine to always bite upon encountering a subject, even when the subject is passive, unless the handler sees the subject and orders the canine to back down before he engages. (Id. at 29:20-30:12.) Lieutenant Wheeler testified that based on what Officer Clark told him, he thought that a bark- and-hold dog is supposed to first bark at a subject to indicate the subject’s presence. (Wheeler Dep. 18:17-20:18.) Then if the subject makes any movement, a bark-and-hold dog is expected to bite and hold the subject until the officer can apprehend him. (Id. at 18:17-20:18, 22:1-25.)

Regardless of whether he was trained and maintained as a bark-and-hold or-a bite-and-hold dog, the evidence shows that during the course of his time as an SPD canine, Spike bit thirteen people, including Plaintiffs Campbell and Gemperline. (Clark I Dep. 221:11-15.) Based on the annual canine usage reports prepared by Officer. Clark, it appears that in 2005, Spike went on ten tracks and had three successful apprehensions, none of which involved a bite. (Brannon Aff. Ex. S18.) In 2006, Spike completed 28 tracks, resulting in either the apprehension of a criminal suspect or the location of evidence. (Id. Ex. S19.) Spike apprehended a total of fourteen suspects, five of whom were bitten during apprehension. (Id.) In 2007, the year during which the Campbell incident occurred,. Spike apprehended a total of six individuals. (Id. Ex. S20.) All but one of those apprehensions involved a bite. (Id.) As stated above, this case primarily concerns two of the incidents in which Spike apprehended suspects with force, both of which are described below.

B. Campbell Incident

The events leading up to the incident in which Spike bit Campbell took place over the course of the evening of October 20, 2007 and the early morning hours of October 21, 2007. Prior to his encounter with Officer Clark and Spike, Campbell had gone to dinner with his girlfriend, Lisa Parker, and another couple. (Campbell Dep. 30:7-31:6.) After dinner, the couples went to the Springboro Eagles Club to have a few drinks. (Id. at 31:19-32:12.) At approximately 12:30 a.m. on October 21, 2007, Parker decided to leave the club and walk home because she was intoxicated. (Id. at 34:13-35:25.) Parker lived in a small duplex at 145 E. North Street, Springboro, Ohio, which was approximately 200 yards from the Eagles Club. (Id. at 33:18-34:21.) Campbell stayed at the club until sometime between 1:00 and 1:30 a.m. (Id. at 33:16-15.) Campbell lived about a mile from the club and he had planned on walking back to his residence. (Id. at 36:7-37:13.) However, upon leaving the club, he realized he still had Parker’s car keys from earlier in the evening and needed to return them to her. (Id. at 36:7-37:13.) When he got to Parker’s house, he could see her lying on the couch through the window in the front door. (Id. at 37:14-19.) He pounded loudly on the front door for about five or ten minutes, but was unable to rouse her. (Id. at 37:22-23, 38:22-40:24.) Still undeterred, Campbell walked around to the back and pounded on the back door for another two to three minutes, and then returned to the front of the house. (Id. at 41:22-42:24.)

Meanwhile, the tenant in the other half of the duplex, Ken Simpson, had heard all of the pounding and called the Springboro police department about the noise. Officer Clark and Spike were working the midnight shift that night; their shift began at 11:00 p.m. on October 20 and ended at 7:00 a.m. on October 21. At approximately 2:22 a.m., Officer Clark was dispatched to Parker’s residence to respond to a report of a possible domestic situation involving a male subject beating on Parker’s front door. (Clark II Dep. 5:11-6:12; Brannon Aff. Ex. C2.) Officer - Clark and another SPD Officer, Nate Anderkin, arrived at the address at approximately 2:26 a.m. (Clark II Dep. 7:23-24; Brannon Aff. Ex. C2.)

By the time the officers got to the scene, Campbell had already left Parker’s residence and had begun to head toward his house on foot through Parker’s back yard. (Campbell Dep. 46:4-8.) Campbell heard the approaching sirens and suspected that a neighbor may have called the police because he was pounding loudly on Parker’s door. (Id.) Shortly after leaving Parker’s back porch, Campbell came upon an outbuilding that was approximately 200 yards from Parker’s residence. (Id. at 50:5-9, 53:11-13.) He lay down on the ground near the outbuilding in an attempt to avoid a confrontation with the police. (Id. at 50:17-52:17.) Campbell heard the officers arrive but he could not see them from where he was lying.

While Campbell hid, Officer Anderkin spoke with Parker’s neighbor. (Clark II Dep. 9:3-5; Anderkin Dep. 14:2-11.) The neighbor told Anderkin that Parker’s residence had recently been broken into and that at some point she had received death threats from someone. (Anderkin Dep. 14:3-7; Clark II Dep. 8:20-9:3.) The neighbor also stated that he had seen a white male, later determined to be Campbell, kick the front door and then run around the side of the house as the officers were approaching. (Anderkin Dep. 14:10-11; Clark II Dep. 9:3-5.) By the time Officer Clark and Anderkin arrived all was quiet. They peered through the windows of Parker’s residence and saw that she was sleeping. (Anderkin Dep. 18:11-23; Clark II Dep. 14:2-5.) They attempted unsuccessfully to rouse her by pounding on the back and front doors to the residence, just as Campbell had done. (Anderkin Dep. 20:24-11; Clark II Dep. 14:2-5.) They noticed that the doors appeared damaged, but they were unable to gain entrance to the residence because both of the doors were securely locked. (Clark II Dep. 10:2-5, 17:5-18:6; Anderkin Dep. 16:12-17:15.)

When asked whether he feared Parker was in danger at that time, Officer Clark responded that he did not think that she was in immediate danger, but he thought Campbell could still be in the area. (Clark II Dep. 15:6:19.) Accordingly, after several unsuccessful attempts to wake Parker, Officers Anderkin and Clark decided to deploy Spike to track Campbell. At that time, the officers still did not know who they were looking for. They knew only that the neighbor had heard someone pounding on the doors. When questioned as to why they decided to track the individual, Officer Clark testified that the facts they had before them, including the neighbor’s statement, the condition of the doors to Parker’s residence, and their belief that the suspect had fled upon hearing police sirens, led the officers to conclude that they were dealing with an attempted burglary and that the suspect was likely still in the area. (Id. at 43:3-44:6.) Officer Clark admitted that their conclusion conflicted with the dispatchers description of the call as a domestic situation, and explained that “that sort of information gets confused quite often.” (Id. at 44:7-11.) Officer Clark also admitted that the officers were not aware of a specific threat to anyone on the scene at that time; however, they perceived a general threat to safety based on the fact that the suspect still was at large and possibly remained close by. (Id. at 43:3-17.)

After outfitting Spike in a harness and twenty-foot tracking line, Officer Clark deployed him near the side of the house. (Clark II Dep. 18:7-20:17, 22:10-19.) Spike pulled fairly hard in the direction of the back porch, and he led Officer Clark through Parker’s backyard. (Id. at 20:19-24.) Officer Clark was responsible for maintaining physical control over Spike during the track. (Clark I Dep. 231:13-24.) While Spike was tracking, Officer Anderkin followed behind Officer Clark to provide cover. (Clark II Dep. 20:25-21:9.) Spike eventually led to officers to an adjoining yard where there was a fence leading up to the outbuilding near where Campbell had laid down on the ground. (Id. at 21:15.)

Campbell and the Defendants offer different descriptions of what happened at that point. During his deposition, Officer Clark testified as follows:

[Spike] began to air scent. He put his head up in the air and he actually jumped up and attempted to jump over the fence. And when I saw the fence, I knew that I wouldn’t be able to cross it and I didn’t want him attempting to cross it because if he would injure himself. I pulled him off the fence and I stopped and I told Officer Anderkin that I thought possibly the person was on the other side of the fence somewhere. And I also told Officer Anderkin that I was going to try to find an entry point, such as a gate, to go in and shout warnings at the person. At that time Spike went back up on the fence and tried to jump over the fence again. And when I was getting ready to go find the gate, he came down off the fence and that’s when he engaged Mr. Campbell on the leg.

(Clark II Dep. 21:18-22:9.) According to Officer Clark, he and Spike had actually walked right past Campbell as Spike was tracking near the fence and that when he was standing near the fence as Spike was air scenting and jumping up on the fence, he was so close to Campbell that Campbell could have reached out and kicked him. (Id. at 28:11-19.) When asked to elaborate on what Spike’s act of air scenting signified, Officer Clark explained that air scenting could mean that the canine believes that a particular suspect or odor that he is tracking is nearby. (Id. at 25:20-23.) Officer Clark cautioned, however, that “[y]ou could be close or you could be fairly far away, but actually what it really translates into is that he’s in the cone, the scent cone.” (Id. at 26:2-6.) In this situation, Officer Clark maintains that he had no idea Campbell was that close and that he did not actually see Campbell until after Spike bit Campbell. (Id. at 28:14-32:16.) In fact, Officer Clark testified that he believed based on Spike’s interest in jumping over the fence that Campbell was somewhere on the other side of the fence. (Id. at 32:1-5.) As a result, Officer Clark claims, he was not looking at Spike at the exact moment that Spike retreated from the fence and bit Campbell; rather, at that moment Officer Clark was turned toward Officer Anderkin and was talking to him about finding a way to get around to the other side of the fence. (Id. at 29:6-18, 31:18-32:23; see also Anderkin Dep. 27:18-28:6, 30:7-12.)

Officer Anderkin similarly testified that Spike led the officers through the backyard to a fence, where they stopped because Officer Clark thought the suspect might have been on the other side of the fence. (Anderkin Dep. 27:10-22.) While the officers were talking and looking over the fence, Spike bit Campbell, who was lying on the ground between a tree and the fence. (Id. at 29:5-31:19.) Officer Anderkin estimated that he was approximately five feet from Campbell when Spike bit him. (Id. at 31:20-32:4.)

Campbell’s description of the events that took place in the moments before Spike bit him differs from Officer Clark’s and Officer Anderkin’s descriptions. First, Campbell disputes Officer Clark’s testimony that he did not see Campbell until after Spike engaged. Campbell testified that he was sure Officer Clark saw him lying on the ground because when Officer Clark and Spike were approximately twenty-five feet from him and approaching, Campbell raised his head, looked right at Officer Clark, and their eyes met. (Campbell Dep. 56:15-57:1.) Campbell also stated that the area in which he lay was somewhat illuminated by a nearby light. (Id. at 57:2-23.) Campbell also denies that Spike walked past him and jumped up onto the fence prior to biting him. Instead, Campbell maintains that Officer Clark and Spike walked directly toward him and that as soon as Officer Clark and Spike reached his location, Spike immediately attacked him. (Id. at 60:19-61:6.) According to Campbell, when Officer Clark approached him, Clark was holding Spike on a short lead and Spike was only one or two feet in front of the officer. (Id. at 59:10-12.)

Both parties agree that neither Campbell nor Officer Clark said anything prior to Spike biting Campbell. Officer Clark issued no warnings to Campbell, and Campbell said nothing to the officers. Campbell contends and Officer Anderkin’s incident report reflects that when Spike engaged Campbell, Campbell was lying face down on the ground with his hands out to the side. (Campbell Dep. 58:4-11; Brannon Aff. Ex. Cl.) Spike bit Campbell on the left leg and continued to bite Campbell at different places on his leg for some period of time, possibly thirty to forty-five seconds. (Clark II Dep. 32:17-34:22, 36:21-37:2.)

Officer Clark testified that after Spike engaged, he shouted at Campbell multiple times to put his hands up. (Clark II Dep. at 33:2-23.) According to Officer Clark, Campbell turned over at some point during the scuffle. (Id.) Officer Clark stated he could not see Campbell’s left hand and continued to order Campbell to raise his hands, but Campbell did not comply. (Id.) Instead, Officer Clark testified, Campbell kicked Spike in the face with his right foot. (Id. at 33:25-34:1.) Officer Clark then allowed Spike to continue to bite Campbell in different places on Campbell’s left leg until finally calling him off. (Id. at 34:1-17.) During his deposition, Officer Clark described the interaction as follows:

A. ... He was stomping him with his right foot on the head repeatedly. And Officer Anderkin then started yelling at him, get your hands up, get your hands up, and became more heated. Our verbalizations became much louder. I was telling him to stop fighting with the dog. And Officer Anderkin continued with, get your hands up, and I transitioned into, stop fighting the dog. And at that point, Spike apparently did not enjoy being kicked in the face, let go and engaged him higher in the thigh where he could not kick him in the face any longer. That is when he put both hands straight up in the air and said okay.

Q. Okay. What did you do after that?

A. I did a call-off, pulled Spike back.

Q. And by call-off, did you give a verbal command to the dog?

A. Yes, I did.

Q. What did the dog do in response to the verbal command?

A. Released.

Q. Immediately?

A. Yes. '

(Id. at 34:1-23.) There is no indication that Officer Clark made any earlier attempt to command Spike to back down or to pull Spike away from Campbell. Campbell’s depiction of the interaction is somewhat similar to Officer Clark’s version, although Campbell maintains that he never kicked Spike in the face. (Campbell Dep. 63:18-24.) Campbell also testified that Officer Clark never said anything to him while Spike was biting him. (Id. at 67:11-16.)

After Spike released his grip on Campbell, Officer Clark ordered Campbell to stand up. (Campbell Dep. 68:20-23.) Campbell was in a great deal of pain and it was difficult for him to stand. (Id. at 69:2-70:11.) Once Campbell was standing, either Officer Clark or Officer Anderkin handcuffed him and walked him back to Parker’s residence. (Clark II Dep. 34:25-35:3; Campbell Dep. 70:6-22, 71:9-12.) Campbell was then transported by ambulance to Middletown Regional hospital, where medical professionals tended to several bite wounds that ran along Campbell’s calf and up onto his thigh. (Campbell Dep. 73:16-24, 80:13-82:17.) A nurse and a doctor took x-rays of Campbell’s leg, cleaned and stitched the wounds, and trimmed loose tissue and skin. (Id. at 81:21-82:1.) They then instructed Campbell on how to care for and clean the wounds at home and released him. (Id. at 85:3-25.) The wounds later became infected and Campbell was admitted to the hospital for three or four days. (Id. at 87:12-24.) It took five to six months for Campbell to heal completely. (Id. at 89:5-15.)

C. Gemperline Incident

On October 11, 2008, approximately one year after the Campbell incident, Officer Clark and Spike were again involved in an incident in which Spike bit someone during the course of a track. Spike’s target on that occasion was Chelsie Gemperline, an 18 year old, 110 lb. woman, who was arrested for underage drinking. (See Clark II Dep. 118:18-23.)

On the evening of October 10, 2008, Gemperline and her friend, Sara Osborne, invited people to an informal party at the home of Osborne’s neighbors, who were out of town and who had asked Osborne to house sit for them. (Gemperline Dep. 38:6-41:25.) About twelve to fifteen people, including Gemperline, Osborne, and Gemperline’s brother, Adam, attended the party. (Id. at 42:1-24.)

Officer Clark and Spike were working the midnight shift that night, beginning at 11:00 p.m., October 10, 2008 and ending at 7:00 a.m., October 11, 2008, just as they had been during the Campbell incident. (Clark II Dep. 109:3-9.) At approximately 1:30 a.m., Officer Clark was dispatched to 128 Deer Trail Drive, Springboro, Ohio to investigate a report of a loud party at which underage teens were believed to be drinking alcohol. (Brannon Aff. Ex. G20.) When he arrived, Officer Clark heard people talking and laughing and saw people on the back deck drinking and smoking cigarettes. (Clark II Dep. 110:6-15.) At that point, Clark was the only officer who had responded to the scene. {Id. at 109:14-25.)

When Officer Clark announced his presence, some of the people retreated back into the house while others stayed on the deck. (Clark II Dep. 110:11-15.) Eventually, Officer Clark learned that the homeowners were out of town, that Osborne was house sitting, and that she lacked permission to throw a party. {Id. at 113:3-9.) While Officer Clark spoke with Osborne and some of the partygoers, others, including Gemperline’s brother, fled the residence. Based on his observations, Officer Clark determined he was dealing with a party involving underage drinking and requested backup. {Id. at 111:5-19, 114:9-115:14.) Several officers from the SPD and other local police departments, including SPD Sergeant Aaron Zimmaro, responded to the scene. (Clark Dep. 112— 114.) Officer Clark briefed Sergeant Zimmaro on the events that had transpired and the two briefly discussed deploying Spike to perform a track for one of the individuals who had fled the residence. (Zimmaro Dep. 39:24-40:8.) According to Sergeant Zimmaro, Officer Clark did not feel comfortable with performing the track because he was concerned that Spike would bite the individual. {Id. at 40:9-41:1.)

Meanwhile, one of the other responding officers found Gemperline hiding in a closet on the second floor of the house. (Gemperline Dep. 52:25-55:6, 58:18-59:21.) The officer escorted Gemperline outside, and Sergeant Zimmaro questioned her about her age, whether or not she had been drinking, and if'she knew anything about where her brother might have gone. (Zimmaro Dep. 46:10-16, 48:3-25.) Gemperline refused to help the officers locate her brother and initially denied drinking any alcohol. (Gemperline Dep. 66:11-23; Zimmaro Dep. 49:18-20.) During her deposition, Gemperline admitted, to drinking two or three beers that night, but she did not believe she was drunk. (Gemperline Dep. 60:1-22.) Both Sergeant Zimmaro and Officer Clark testified that Gemperline appeared intoxicated. (Zimmaro Dep. 46:10-14; Clark II Dep. 118:9-17.)

After questioning her, Sergeant Zimmaro informed Gemperline that she was under arrest, placed her in handcuffs, and placed her in a Warren County Sheriffs Deputy’s car. (Zimmaro Dep. 51:12-58:25.) Gemperline became belligerent after Sergeant Zimmaro told her she was under arrest. {Id.; Clark II Dep. 116:18— 118:17.) Sergeant Zimmaro and Officer Clark testified that Gemperline was swearing and attempted to kick the officers. (Zimmaro Dep. 57:11-58:10; Clark II Dep. 117:23-118:8.) Gemperline admitted during her deposition that she said “fuck you, bitches” to the officers. (Gemperline Dep. 72:3-14.)

During the brief period after the officers had placed Gemperline in the deputy’s cruiser and turned their attention elsewhere, Gemperline was able to slide her right hand out of the, handcuffs, lower the window of the car and escape. She fled down the street and hid in a children’s plastic playhouse in the backyard of a house that was six to seven houses away from the location of the party. Gemperline planned on spending the night in the playhouse because she thought she would get into trouble if she went home. (Gemperline Dep. 84:8-85:7.)

When Sergeant Zimmaro learned that Gemperline had escaped from the deputy’s car, he told Officer Clark to get Spike and look for Gemperline. Sergeant Zimmaro felt it was important to start the track as quickly as possible because when Gemperline fled, the situation evolved into a felony in progress, and Sergeant Zimmaro believed Gemperline could be a threat to herself or others. (Zimmaro Dep. 61:11— 20.) During his deposition, he stated that at the time Gemperline fled, he knew only that she was intoxicated, possibly was still handcuffed, that “she was very belligerent, that she was willing to resist officers and that it was unknown what measures she would go to to continue to flee.” (Id. at 61:11-20, 63:4-18.) He worried that she might injure herself while trying to flee because the terrain in some areas was rough and there was a deep ravine nearby. (Id. at 64:24-65:8.) As a result, Sergeant Zimmaro stated, “she needed to be found and she needed to be found soon.” (Id. at 61:19-20.)

Both Sergeant Zimmaro and Officer Clark testified that they did not intend for Spike to bite Gemperline. (Clark II Dep. 130:14-18; Zimmaro Dep. 72:11-22.) However, Officer Clark also testified that he knew that the track would more likely than not end in Spike biting Gemperline. (Clark II Dep. 129:20-131:8.) Officer Clark also made the following comments, captured in part by his vehicle recording device: “Jeez Louise ... [unintelligible] this bitch, ... I’ve had it,” and “... she’s gonna get a nice rude awakening here in one second or two, ... it’s not gonna feel very good.” (Brannon Aff. Ex. G33 at 2.) Officer Clark denied making the first statement, but admitted to the second statement. (Clark II Dep. 194:8-20.)

At Sergeant Zimmaro’s request, Officer Clark harnessed Spike, placed him on the same twenty-foot lead as was used during the Campbell track, and deployed him on a “tactical fugitive track.” (Clark II Dep. 126:16-24, 141:2-5.) Sergeant Zimmaro and another officer, Deputy Apking, accompanied Officer Clark and Spike as they began tracking Gemperline down Deer Trail Drive. While walking down the street, Sergeant Zimmaro and Deputy Apking noticed an open gate leading into a back yard and suggested they investigate it. (Id. at 146:10-19; Zimmaro Dep. 80:15-81:16.) However, at that same time, Spike Led Officer Clark into a fenced-in back yard on the opposite side of the street. (Clark II Dep. 146:24-147:24.) As they entered the back yard, Officer Clark interpreted Spike’s air-scenting behavior as indicating that Spike smelled something on the deck of the house. (Id. at 150:15-151-6.) Officer Clark shortened Spike’s lead to approximately four to five feet and searched the deck, but he did not find anything. (Id. at 151:7-17.) For a moment, Officer Clark was annoyed with Spike and thought he might just be “goofing off.” (Id. at 151:19-21.) Officer Clark had given up on the search and began to head back toward his car when Spike darted across Officer Clark’s path and leapt head-first through the window of a child’s playhouse that was located near the gate to the backyard. (Id. at 152:2-23, 156:7-14.)

Gemperline was curled up in the playhouse with her eyes closed. (Gemperline Dep. 89:7-24.) When Officer Clark entered the backyard,’ she heard his radio and the sound of crunching leaves. (Id. at 87:12-88:1.) She then heard Officer Clark say something to Spike right before he jumped into the playhouse. (Id. at 88:4-22, 92:2-25.) Spike was able to reach his head far enough through the window of the playhouse to nip Gemperline’s chin and bite her right upper thigh. (Clark II Dep. 156:7-14; Gemperline Dep. 93:5-25.) Gemperline screamed and grabbed Spike’s jaws and tried to pry him off her leg. (Gemperline Dep. 94:9-16.) Spike briefly let go of her leg, but then he clamped down again. (Id. at 94:17-23.) Gemperline continued to struggle with Spike until she either passed out or went into shock. (Id. at 95:2-96:16.) While Gemperline testified that Spike bit her a few different times, Officer Clark testified that as soon as he heard Gemperline scream, he reached into the playhouse, grabbed Spike by his collar and lifted straight up to cut off Spike’s airway. (Clark II Dep. 156:7-14.) Officer Clark described that maneuver as a “choke off,” and stated that a choke off prevents the dog’s head from moving back and forth and cuts off the dog’s airway, forcing the dog to release its bite. (Id. at 156:15-25.) Officer Clark admitted that he did not give Spike a verbal release command prior to performing the choke off. (Id. at 157:7-17.) He believed it would be more difficult to give a verbal release command and was concerned that Spike would not follow a verbal command if Gemperline was hitting or actively resisting Spike. (Id. at 157:9-25.)

There is conflicting evidence as to what, if any, warnings Officer Clark gave to Gemperline. Gemperline did not recall hearing officer Clark say anything to her. (Gemperline Dep. 95:20-22, 96:4-9.) Officer Clark testified that he could have, but did not shout any warnings when he entered the backyard with Spike. (Clark II Dep. 159:19-160:8.) Officer Clark later testified that during the course of pulling Spike off of Gemperline, he gave the command “stand still, hands up, auf.” (Id. at 164:10-12.) He stated that he gives that command every time he performs a choke off and that it is meant as a dual command for both the dog and the person being bitten. (Id. at 164:10-21.) Another officer, Warren County Sheriff Sergeant Brian Dulle, who had responded to the scene during the track, testified that Officer Clark told him that he gave Gemperline “numerous verbal commands” to which she did not respond, and that in response to her refusal to comply, he utilized Spike. (Dulle Dep. 17:10-23, 21:23-22:8, 36:22-37:10, 39:4-10.) Sergeant Dulle also testified that he got the impression that Officer Clark knew that Gemperline was in the playhouse before Spike bit her. (Id. at 37:25-38:4.)

When Spike bit Gemperline, she screamed, prompting Sergeant Zimmaro and Deputy Apking to run into the backyard. (Zimmaro Dep. 83:6-25; Clark II Dep. 161:2-8.) After Officer Clark pulled Spike off of Gemperline, Deputy Apking flipped over the play house, turned Gemperline on her stomach, and handcuffed her. (Zimmaro Dep. 85:7-14.) Sergeant Zimmaro and Deputy Apking carried Gemperline to the street and called for an ambulance. (Id. at 88:5-24.) When Sergeant Dulle saw Gemperline’s leg, he ordered the officers to remove her handcuffs. (Dulle Dep. 23:14-20.) Sergeant Dulle was concerned Gemperline might pass out or fall over and wanted to make sure that her hands were free so that she could catch herself. (Id. at 23:18-20.) According to Sergeant Dulle, Gemperline’s leg was bloody and her pants were ripped. (Id. at 23:16-18.) Gemperline testified that there was a huge gash in the front of her right thigh and that she could see muscle. (Gemperline Dep. 99:7-8.) She also had a puncture wound on the side of her leg. (Id. at 98:15-24.)

Eventually, Gemperline was transported by ambulance to Sycamore Hospital, where she was admitted and received treatment for her wounds. (Gemperline Dep. 102:05-22, 104:20-107:16.) After a few days, Gemperline was discharged from Sycamore Hospital and admitted to Kettering Medical Center, where she stayed for a week and a half while receiving additional treatment. (Id. at 107:10-108:4.) During that time period, Gemperline .was unable to walk. (Id. at 108:5-15.) When she was discharged from Kettering, she was given crutches, which she relied on for six months while recovering. (Id. at 108:12-25.) As a result of her injuries, she now has a permanent deformity in her right thigh. (Id. at 112:20-113:3.)

D. Decommissioning of the Canine Unit

The day after the Gemperline incident, Lieutenant Parker informed Officer Clark that the canine program was being suspended. (Clark II Dep. 167:20-168:11.) Chief Kruithoff asked Lieutenant Wheeler to perform an administrative audit of the canine unit. (Kruithoff Dep. 18:15-19:15; Wheeler Dep. 74:21-75:4, 114:5-15.) At the conclusion of that audit, Lieutenant Wheeler recommended that Chief Kruithoff retire Spike. (Wheeler Dep. 115:17-116:23.) Lieutenant Wheeler felt that although Spike was a good canine, he did not currently meet the needs of the SPD as well as would a different canine. In early 2009, Chief Kruithoff decided to terminate the canine program. (Kruithoff Dep. 18:13-18.) He claims he based his decision in part on the audit and in part on the basis that by that time, the unit had already been off-duty for a number of months. (Id.) The SPD subsequently terminated Officer Clark on October 9, 2009. (Clark I Dep. 26:23-25.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary judgment is appropriate if “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). On a motion for summary judgment, the movant has the burden of showing that no genuine issues of material fact are in dispute, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party must provide more than a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). That is, the nonmoving party must present sufficient evidence to permit a reasonable jury to find in that party’s favor. Id.

The movant may support a motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In responding to a summary judgment motion, the nonmoving party may not rest upon the pleadings but must go beyond the pleadings and “present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Anderson, 477 U.S. at 257, 106 S.Ct. 2505. The Court’s task is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505.

The Court carefully reviews “those portions of the submitted evidence designated by” both parties. Guarino v. Brookfield Twp. Tr’s., 980 F.2d 399, 410 (6th Cir. 1992); see also Fed.R.Civ.P. 56(c)(3) (“The court need consider only the cited materials ... ”). Although the Court “may consider other materials in the record,” Fed. R.Civ.P. 56(c)(3), the Court will not “sua sponte comb the record from the partisan perspective of an advocate for the non-moving [or moving] party.” Guarino, 980 F.2d at 410.

III. ANALYSIS

A. Motions to Strike the Affidavits of Plaintiffs’ Expert Witnesses

In opposing Defendants’ Motions for Summary Judgment, Plaintiffs rely in part on affidavits and reports prepared by two expert witnesses, Kyle K. Heyen and Michae