HAMILTON COUNTY, OHIO; HAMILTON COUNTY
SHERIFF’S DEPARTMENT; JIM NEIL, RAYMOND BERRY,
WILLIAM COTTON, and GENE NOBLES, in their official
and individual capacities,
| No. 19-3839|
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 1:15-cv-00693—Susan J. Dlott, District Judge.
Decided and Filed: October 2, 2020
Before: BATCHELDER, LARSEN, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge. In a famous tort case, a plaintiff was hit by gunfire when two
hunters negligently discharged their shotguns in his direction. The plaintiff could not identify
which of the two hunters had fired the injurious shot, but the court held that both could be found
jointly liable. See Summers v. Tice, 199 P.2d 1, 2–5 (Cal. 1948). The plaintiff in this case,
Ali Pineda, asks us to adopt (and expand) something like this rule for his constitutional claim
under 42 U.S.C. § 1983. Three off-duty sheriff’s deputies were providing outside security at a
Cincinnati night club. Pineda alleges that one of them hit him on the back of the head with a
baton and caused a serious brain injury. He brought an excessive-force claim against all three
deputies. At the summary-judgment stage, however, Pineda did not identify the specific deputy
who struck the blow. He argues that he should be allowed to proceed to trial against all three
deputies even though, on his own telling, two are free of fault. We disagree. Unlike the
tortfeasors in Summers who had both been negligent, only one deputy in this case allegedly
committed a constitutional violation. Because Pineda did not present evidence that would allow
a reasonable jury to identify the deputy who did so, we affirm the grant of summary judgment to
all three deputies.