Phillip Miller, et al v. Walter Davis, III, et al

Filing

OPINION filed : AFFIRMED. Decision not for publication. Eugene E. Siler, Jr. (AUTHORING), Deborah L. Cook, and Bernice Bouie Donald, Circuit Judges. *The file stamp has been applied to this opinion.--[Edited 06/24/2016 by CL]

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0349n.06
Case No. 15-3923

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PHILLIP MILLER, et al.,
Plaintiffs-Appellants,
v.
WALTER DAVIS, III, et al.,
Defendants-Appellees.

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Jun 24, 2016
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO

BEFORE: SILER, COOK, and DONALD, Circuit Judges.
SILER, Circuit Judge. Phillip and Cathy Miller, a married couple, were investigated,
prosecuted, tried, and acquitted for allegedly stealing nearly $100,000.00 from Bettie Robbins,
Cathy’s elderly mother. Upon their acquittal, the Millers brought suit in federal court for
intentional infliction of emotional distress (“IIED”) and malicious prosecution against Detective
Kevin Ullom of the Delaware County Sheriff’s Office and Delaware County Prosecuting
Attorney Carol O’Brien. In addition, the Millers alleged supervisory liability and invasion of
privacy claims against O’Brien. The district court granted summary judgment to the Defendants
on all claims. We AFFIRM.

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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
For nearly two decades, Bettie and her husband, Lester, lived next door to the Millers in a
duplex home. When Lester died in 2004, Bettie moved into the Millers’ portion of the home.
The Millers contend that Bettie, then age seventy-nine, remained in excellent health and fully
cared for herself at that time. In 2007, Bettie was diagnosed with Alzheimer’s disease and
assigned power of attorney over her affairs to Cathy. She began to show signs of dementia in
2008 and ultimately moved into an assisted living facility in 2009.
In December 2009, Larry Robbins—Bettie’s son and Cathy’s brother—became
suspicious that the Millers were financially exploiting Bettie. Larry learned that Bettie’s home
had been sold to Phillip’s mother and that Bettie’s bank accounts were significantly depleted. At
Larry’s urging, Bettie revoked Cathy’s power of attorney, assigning it instead to Larry, his other
sister, Vikki Lutz, and her husband, Steve Lutz.
As a result of these concerns, Larry filed a theft report with the Delaware County
Sheriff’s Office; Detective Ullom was assigned to investigate. Ullom summarized his findings in
an investigative report (the “Report”), which characterized Bettie’s condition and the families’
relationships as follows.
Bettie L. Robbins is an adult female who has been diagnosed with
dementia and probable Alzheimer’s. Bettie is unable to provide
care for herself. During the dates of these offenses Bettie was 79
YOA to 85 YOA. Bettie previously lived with her husband, Lester
Robbins, at 575 South Section Line Rd[.], which was a home the
coupled owned. Lester passed away June 9, 2004. . . .
Bettie and Lester have three adult children, Cathy Miller, Larry
Robbins, and Vikki Lutz. In 2004 Cathy Miller resided at 577
South Section Line Rd[.], Delaware, Ohio 43015 with her husband,
Phillip Miller. This address is attached to 575 South Section Line
Rd[.] and was also owned by Lester and Bettie.

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After Lester’s passing Cathy Miller took over as Bettie’s primary
caregiver. During this time Larry Robbins resided out of State and
Vikki Lutz, along with her husband Steve Lutz, lived some
distance away from Delaware, Ohio.
Detective Ullom’s review of Bettie’s financial records yielded $94,637.91 in charges
believed to be “fraudulent or unrelated to Bettie Robbins’ care.” (Id.) The flagged charges
include the following.


Within five months of Lester Robbins’ death, the balance in the Robbins’
previously joint checking account with JP Morgan Chase was depleted from
$13,019.13 to less than $1,000.00. Numerous checks from this account, totaling
$6,605.13, were written to the Millers and deposited in their bank accounts.
Additionally, cash withdrawals from the account between August 2004 and
November 2006 totaled $6,060.50. Ullom identified “[s]everal questionable card
purchases” totaling $7,841.72 during the same period, including large purchases
from Circuit City, Budget Car Sales, an event ticket seller, Home Depot, and Old
Navy and Maurice’s clothing stores. Moreover, the card was used to make
payments on National City and Capital One credit cards that were apparently not
used by or for Bettie.



Bettie’s PNC Bank checking account was partially funded by a deposit of
$24,466.42 associated with the sale of her home. Ullom noted that within a
month of that deposit, the majority of it had been removed from the account.



Numerous checks were written from the PNC Bank account to the Millers and to
cash between December 2004 and March 2005, totaling $19,584.67.
withdrawals were also made from the account.

Cash

Ullom noted “[s]everal

questionable card purchases” were made from this account between November
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2004 and February 2005. These included payments to an insurance company for
an account belonging to the Millers and on a Capital One card, large purchases at
Home Depot, and purchases of flowers and airline tickets.

Though Bettie

apparently never owned or used a cell phone, the card was also used to pay for a
cellular account in her name.


A second JP Morgan Chase bank account in Bettie’s name also reflected
numerous checks written to the Millers and to cash, totaling $6,592.00, with
additional cash withdrawals totaling nearly $4,000.00. Card purchases from this
account included large purchases at restaurants, including Domino’s Pizza and
Buffalo Wild Wings; various clothing stores; a tractor supply store; and a
technology company. Although Larry Robbins stated that his mother did not drive
and never used a computer, the card was used to purchase gasoline and at an
online store for computer parts.



Records associated with Bettie’s PNC Diamond Edition credit card reflected
additional purchases at restaurants, gas stations, and clothing stores. The card
was also used at a computer game/software retailer and to pay charges to Cathy’s
Paypal account.



Records associated with a life insurance policy that belonged to Bettie reflected
that the policy was transferred to Cathy in August 2008. The following year,
Cathy took a loan against the policy for the maximum allowable amount of
$1,200.00 and then surrendered the policy for its remaining value.



Records indicated that Bettie gave her vehicle, valued at $1,000.00, to Phillip’s
sister, Jackie Brinkley. In January 2005, Bettie’s home was sold to Thelma

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Miller, Phillip’s mother. From that sale, a note was created for an additional loan
of $23,500.00 owed to Bettie. Ullom noted that no efforts were made to collect
on the note.
Though the Millers disputed that the charges at issue were fraudulent or unrelated to Bettie’s
care, they did not contest the accuracy of the transactions.
Upon completing his investigation, Ullom submitted his report to the Delaware County
Prosecutor’s Office. Assistant prosecuting attorney Mark Sleeper was assigned to the case.
Having concluded that prosecution was appropriate, Sleeper presented the matter to a grand jury,
which returned indictments against the Millers for theft. However, the record in the instant case
contains no information regarding the grand jury proceedings. Though the Millers attempted to
obtain the grand jury transcript, the Common Pleas Court of Delaware County, Ohio, denied
their request.
The Millers were arrested at their home and spent six days in the Delaware County Jail
before being released pending trial.

During this pretrial period, the Delaware County

Prosecutor’s Office issued a press release (the “Release”) in recognition of World Elder Abuse
Awareness Day. Designed to “bring[] awareness to the community about crimes committed
against the older population in Delaware County,” the Release published the Millers’ mugshots
and described their pending charges.
The Delaware County Prosecutor’s office has handled a multitude
of crimes against the elderly. Most recently, a Delaware County
Grand Jury indicted a husband and wife for stealing almost
$95,000 over a period of seven years from their 86-year-old
mother who was in their care.
Cathy Miller, 48, and her husband Phillip Miller, 51, . . . were each
indicted on May 27 on two counts of theft for taking large amounts
of money from Cathy Miller’s mother. Cathy’s mother was
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diagnosed with dementia and probable Alzheimer’s and was
unable to care for herself. The Millers had power of attorney, but
it was revoked in April 2010 after family members became
suspicious of the victim’s financial activity. Delaware County
Sheriff’s office detectives received the case when family members
discovered numerous transactions from the victim’s bank accounts
that were not relevant to her care.
...
On June 2, both Cathy and Phillip Miller were arraigned and
released on their own recognizance. A trial date for the two is
scheduled for Sept. 6, 2011. The Millers both face up to eight
years in prison for each second-degree felony.
After being approved by Delaware County Prosecuting Attorney Carol O’Brien, the statement
was posted to the office’s website and released to local news outlets.
In 2012, the Millers’ case proceeded to a bench trial before Judge Patrick M. McGrath of
the Common Pleas Court of Delaware County, Ohio. Judge McGrath acquitted the Millers. He
observed, “The State relied primarily on records, but the issues here presented involved many,
many transactions and over many years. . . . [T]hey needed to be looked at individually, and
they needed to be looked at generally both. The records do not tell the whole story . . . .” Judge
McGrath pointed to the testimony of Bettie’s attorney, who spoke about her mental acumen; the
court also noted that Bettie’s doctor found her competent to make financial and health-related
decisions until December 2008. These witnesses, Judge McGrath said, “bring an element of
reasonable doubt into this case.” However, he noted that the prosecution was “[f]ully justified in
bringing the case.”
Following the acquittal, Cathy contacted Traci Whittaker, Chief Information Officer of
the Delaware County Prosecutor’s Office, to request that the Release be removed from the
office’s website. Nonetheless, over a year later, Cathy found that the Release remained on the
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website. She then wrote a letter to O’Brien requesting that the Release be removed. She now
asserts that even after her request, the Release continued to be available online.
In 2013, the Millers sued Ullom and O’Brien, along with numerous other defendants, in
federal court under 42 U.S.C. § 1983 and state law. They alleged that Ullom’s Report contained
“numerous inaccuracies and glaring omissions,” that the investigation was incompetent, and that
“[t]here was a complete and utter lack of probable cause” for their investigation. After the court
granted in part the Defendants’ motions to dismiss, the remaining federal claims included
(1) Fourth Amendment malicious prosecution claims against Ullom and Walter L. Davis, III, and
(2) supervisory liability claims against Davis and O’Brien. Three state law claims remained:
(1) malicious prosecution against Davis and Ullom, (2) invasion of privacy against O’Brien, and
(3) IIED against Davis, Ullom, and O’Brien.
The district court denied the Millers’ request to obtain the grand jury transcript, deeming
it untimely in light of the expired deadline for discovery. The Millers have neither briefed nor
appealed that order. Therefore, the appellate record is silent as to the contents of the grand jury
testimony. In their response to the Defendants’ motion for summary judgment, the Millers
abandoned their claims against Davis. The district court granted summary judgment for Ullom
and O’Brien as to all remaining claims.
STANDARD OF REVIEW
We review a district court’s award of summary judgment de novo.

Blackmore v.

Kalamazoo Cnty., 390 F.3d 890, 894-95 (6th Cir. 2004) (citing Terry Barr Sales Agency, Inc. v.
All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996)).

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DISCUSSION
I.

The trial court appropriately granted summary judgment in favor of Ullom as to
the federal and state malicious prosecution claims.
We recognize a claim of malicious prosecution under the Fourth Amendment, “which

‘encompasses wrongful investigation, prosecution, conviction, and incarceration.’” Sykes v.
Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (quoting Barnes v. Wright, 449 F.3d 709, 715-16
(6th Cir. 2006)). This tort is designed to “remed[y] detention accompanied . . . by wrongful
institution of legal process.” Id. (quoting Wallace v. Kato, 549 U.S. 384, 390 (2007)). To
prevail on a malicious prosecution claim grounded upon the Fourth Amendment, a plaintiff must
prove four elements:

(1) that the defendant “ma[d]e, influence[d], or participate[d] in the

decision to prosecute”; (2) that the criminal prosecution lacked probable cause; (3) that “as a
consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty . . . apart from
the initial seizure”; and (4) that the criminal proceeding was resolved in the plaintiff’s favor. Id.
at 308-09 (internal quotation marks and citations omitted).
The Millers contend that Ullom “knowingly gave the grand jurors incorrect information
at the grand jury hearing, resulting in a significantly flawed proceeding.” Specifically, they
assert that Ullom falsely testified that the Millers refused to be interviewed or to otherwise
cooperate with the investigation. They further assert that Ullom knowingly offered inaccurate
information to the grand jury regarding “the ownership of a life insurance policy, the gift of one
of Mrs. Robbins’ vehicles to another relative,” and several other issues.
a. Because the Millers’ prosecution was supported by probable cause, their malicious
prosecution claim cannot withstand summary judgment.
i. The grand jury indictment conclusively establishes probable cause.
The Millers’ claim turns on the second prong of the Sykes analysis: if their arrest and
prosecution were supported by probable cause, their claim necessarily fails. See Bielefeld v.
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Haines, 192 F. App’x 516, 520 (6th Cir. 2006) (“The existence of probable cause for an arrest
and prosecution defeats a Section 1983 claim under the Fourth Amendment.”) (citing Braley v.
City of Pontiac, 906 F.2d 220 (6th Cir. 1990)). “[I]t has been long settled that the finding of an
indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the
existence of probable cause for the purpose of holding the accused to answer.” Barnes, 449 F.3d
at 716 (quoting Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002) (internal quotation
marks omitted)). So long as “[t]here is no evidence of perjured testimony or irregularity in the
grand jury proceeding,” an indictment gives rise to a conclusive presumption that there was
probable cause to support an arrest. See Bakos v. City of Olmsted Falls, 73 F. App’x 152, 157
(6th Cir. 2003).
An exception to the Barnes principle applies “where the indictment was obtained
wrongfully by defendant police officers who knowingly presented false testimony to the grand
jury.” Robertson v. Lucas, 753 F.3d 606, 616 (6th Cir. 2014) (quoting Mott v. Mayer, 524 F.
App’x 179, 187 (6th Cir. 2013)). The exception extends to “officers who testify with a reckless
disregard for the truth.” Id. (citing Sykes, 625 F.3d at 305).
Therefore, the question before us is whether the indictment against the Millers was “fair
upon its face.” Our inquiry is necessarily a limited one, however; as explained above, the
Millers have provided no evidence regarding the grand jury proceedings. Without any evidence
of who testified before the grand jury, what evidence was presented, or what testimony was
considered, they cannot overcome the indictment’s conclusive proof of probable cause.
The same result inures under Ohio law, which defines the tort of malicious prosecution in
a substantially similar fashion. See Harris v. United States, 422 F.3d 322, 327 (6th Cir. 2005)
(“To prove a malicious-criminal-prosecution claim under Ohio law, a plaintiff must demonstrate

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(1) that the government officials instituted or continued criminal proceedings with malice,
(2) that they lacked probable cause and (3) that the proceedings were then terminated in favor of
the accused.” (citing Trussell v. Gen. Motors Corp., 559 N.E.2d 732, 736 (Ohio 1990))). One
essential difference distinguishes the state tort from the federal one:

under Ohio law, an

indictment is not preclusive evidence of probable cause but rather prima facie evidence thereof.
See id. Therefore, Ohio law leaves room for a plaintiff to bring forward “substantial evidence to
rebut [the indictment’s evidence of probable cause]—for example, by showing that the return of
the indictment resulted from perjured testimony or that the grand jury proceedings were
otherwise significantly irregular.” Id. (internal quotation marks and citations omitted)).
Here, the Millers have produced no evidence to establish that the return of the indictment
resulted from perjured testimony or irregularities in the grand jury proceedings. Therefore, the
district court did not err by awarding summary judgment in Ullom’s favor.
ii. Because the Millers’ prosecution was supported by probable cause, Ullom enjoys
qualified immunity.
As stated, Bettie’s son reported to the local sheriff’s office that the Millers were stealing
from his mother. Ullom’s investigation reflected depleted account balances, the sale of her
house and car to Phillip’s relatives, and the transfer of monies from her bank accounts into the
Millers’ own.
“[A]n arresting agent is entitled to qualified immunity if he or she could reasonably (even
if erroneously) have believed that the arrest was lawful, in light of clearly established law and the
information possessed at the time by the arresting agent.” Harris v. Bornhorst, 513 F.3d 503,
511 (6th Cir. 2008) (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Accordingly, even if a
factual dispute exists as to the objective reasonableness of Ullom’s actions, he is entitled to
qualified immunity if, viewing the facts favorably to the Millers, Ullom could have reasonably
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believed that the arrest was lawful.

Because Ullom’s belief cannot be said to have been

unreasonable, he enjoys immunity as to this claim.
iii.

The Millers have presented no evidence that Ullom made, influenced, or
participated in the decision to prosecute the Millers or that he knowingly
presented false statements.

Sixth Circuit law dictates that a claim for malicious prosecution against a police officer
cannot survive without evidence that the officer caused the plaintiff to be prosecuted. See
Skousen v. Brighton High Sch., 305 F.3d 520, 529 (6th Cir. 2002) (holding that where “[t]here is
no evidence that [the officer] made or even was consulted with regard to the decision to
prosecute [the plaintiff],” the officer cannot be held liable for malicious prosecution). Here, no
evidence suggests that Ullom made, influenced, or participated in Sleeper’s decision to prosecute
the Millers.
The Millers insist that Ullom’s report—indisputably fundamental to the commencement
of the criminal proceedings against them—reflects a defective investigation. They contend that
Ullom knowingly provided false information to Sleeper, who in turn misled the jury, resulting in
their improper indictment and arrest. True, an officer may be held liable “for making materially
false statements either knowingly or in reckless disregard for the truth to establish probable cause
for an arrest.” Gregory v. City of Louisville, 444 F.3d 725, 758 (6th Cir. 2006) (citing Hill v.
McIntyre, 884 F.2d 271, 275 (6th Cir. 1989)). But the Millers have presented no evidence that
Ullom provided false information to Sleeper, that Ullom knew that such information was false,
or that the information was material.
The Millers emphatically point to certain information that became known after the
Millers’ indictment, much of which was raised in testimony during their criminal trial. They
contend that Ullom neglected to interview numerous individuals who would have testified that
Bettie was competent in 2004. Similarly, they argue that Ullom failed to provide the context for
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the financial transactions discussed in his Report. The Millers note that Ullom never interviewed
Phillip, Cathy, or Bettie herself.

And although the Millers acknowledge Larry Robbins’

suspicions, they submit that Larry’s criminal history and distance from the family’s situation
should have given Ullom pause in trusting his account.
Whatever the merits of the Millers’ criticism of Ullom’s investigation, such oversights do
not render it constitutionally deficient. “[P]robable cause exists when the police have reasonably
trustworthy information [that is] sufficient to warrant a prudent man in believing that the
[suspect] had committed or was committing an offense based on the facts and circumstances
within [the police’s] knowledge at the moment in question.” Peet v. City of Detroit, 502 F.3d
557, 563-64 (6th Cir. 2007) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)) (alterations in
original) (internal quotation marks omitted). Despite the Millers’ insistence that Ullom failed to
collect certain exculpatory evidence that would have eliminated probable cause, “once probable
cause is established . . . the police have no constitutional duty to investigate further or to seek
potentially exculpatory evidence.” Martin v. Maurer, 581 F. App’x 509, 512 (6th Cir. 2014)
(citing Ahlers v. Schebil, 188 F.3d 365, 371-72 (6th Cir. 1999)). Particularly in light of Larry’s
report, there can be little doubt that Ullom’s investigation yielded ample probable cause.
The Millers argue that Ullom knowingly provided Sleeper with false information by
including two alleged untruths in his Report. They first dispute Ullom’s observation that Cathy
“took over as Bettie’s primary caregiver” after the death of Bettie’s husband. The parties agree
that Bettie moved in with Cathy when she was seventy-nine years old and that Cathy ultimately
became Bettie’s primary caregiver at some point in the years that followed. However, the
Millers contend that Bettie moved in with the Millers simply as a roommate and remained “a
fully-functioning adult in charge of her financial affairs until late 2008.” The Millers insist that

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Ullom should have interviewed Bettie or other witnesses rather than “bas[ing] his assumptions
purely on the rantings of her estranged son who admitted he was out to get his sister.” They
assert that “Detective Ullom knew that he had no factual basis for making the statement” that
Cathy was Bettie’s caregiver prior to 2008 and that his statement was therefore “knowingly
false.”
But the Millers offer nothing beyond these bald assertions. No evidence suggests that
Ullom knew that Cathy did not assume responsibility for Bettie’s care when Bettie moved into
Cathy’s home. And more importantly, Cathy’s status as a “primary caregiver” was not material
to the probable cause determination; though information about her relationship to Bettie may
have provided context for the investigation, it was not an element of the crime. Accordingly, this
alleged falsehood is not actionable. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978). The
Millers’ objections as to this issue cannot form the basis for a constitutional violation.
The Millers also contest Ullom’s characterization of their communications with him.
According to Ullom, “Investigators attempted to speak with Phillip and Cathy Miller regarding
these matters. Both declined to be interviewed about this case.” On appeal, they maintain that
contrary to Ullom’s portrayal, they were willing to cooperate with the investigation by either
speaking to Ullom on the telephone or by arranging an interview through their counsel.
Moreover, they note that Ullom spoke only to Phillip and never requested that Cathy provide an
interview.
The district court concluded that “the truth or falsity of [Ullom’s] statement depends on
the way in which one interprets Ullom’s contact with Phillip Miller.” The court noted that even
if the Millers had been willing to speak to Ullom on the phone or conduct an interview through
their attorney or if Cathy Miller had been willing to be interviewed without the Millers’ attorney,

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“the discrepancies between those facts and Ullom’s statement are minor.” Accordingly, the
district court determined that any incongruities between Ullom’s report and the Millers’ intent
were immaterial to the grand jury’s finding of probable cause. This conclusion appears to be
correct; even if Ullom mischaracterized his conversation with Phillip, the Report cannot be said
to have been an outright falsehood. Moreover, the effect of any mischaracterization is far from
clear: though the Millers insist that Ullom’s characterization of their alleged unwillingness to
cooperate with the investigation “cast[] a shroud of guilt around them from day one” and that
“the prosecutors factored that information into their decision to indict,” no evidence supports this
inference.
The Millers next contend that Ullom “states outright in his report[] that the Millers
fraudulently duped their mother into selling her car.” However, review of the Report reveals no
such statement. It reads, in relevant part: “Vehicle transfer records show a 1985 Oldsmobile
belonging to Bettie Robbins was given as a gift to Jackie Brinkley. Larry Robbins reported
[that] Jackie is Phillip Miller’s sister. Investigators were unable to make contact with Jackie at
the time of this report.” Though it noted the sale within the context of Bettie’s rapidly depleting
assets, the Report did not accuse the Millers of theft. As Defendants note, any such inference
was made by the prosecutor’s office, not by Ullom himself. The same reasoning applies to the
Millers’ argument regarding the sale of Bettie’s home to Phillip’s mother: the prosecutor’s
office, not Ullom, reviewed the facts and concluded that the Millers had committed a crime.
Finally, the Millers take umbrage at Ullom’s depiction of a life insurance policy. The
Report stated, “This insurance policy previously existed belonging to Bettie Robbins. August
18, 2008, the ownership was transferred to Cathy Miller.” Though the Millers insist that Bettie

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signed the transfer, this argument does not render Ullom’s Report false; he never stated that
Cathy committed fraud, but simply noted the fact of the transaction.
The district court rejected each of the Millers’ arguments regarding Ullom’s statements to
Sleeper. Because the Millers submitted no evidence to withstand the motion for summary
judgment, the district court did not err in granting summary judgment in Ullom’s favor on the
malicious prosecution claim.
II.

The Millers’ supervisory liability claim against O’Brien fails as a matter of law.
The Millers next alleged a claim of supervisory liability against O’Brien, arguing that she

was aware that the grand jury considered false information in issuing its indictment. The district
court properly granted summary judgment in O’Brien’s favor. It noted O’Brien’s “minimal
participation in the prosecution” and observed that even if her actions were sufficient to invoke
supervisory liability, the Millers failed to explain “how or when O’Brien discovered that any of
[the] information provided to the prosecution was false.”
As an initial matter, “a prerequisite of supervisory liability under § 1983 is
unconstitutional conduct by a subordinate of the supervisor.” McQueen v. Beecher Cmty. Schs.,
433 F.3d 460, 470 (6th Cir. 2006).

Because the Millers’ Fourth Amendment malicious

prosecution claim cannot withstand the Defendants’ motion for summary judgment, that obviates
the supervisory liability claim for that allegation.
Moreover, as the district court recognized, the Millers were required to demonstrate that
O’Brien herself “encouraged the specific incident of misconduct or in some other way directly
participated in it.” Phillips v. Roane Cty., 534 F.3d 531, 543 (6th Cir. 2008) (quoting Shehee v.
Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)). It is not enough to simply point to the doctrine of
respondeat superior. See Shehee, 199 F.3d at 300 (“This court has held that § 1983 liability must
be based on more than respondeat superior, or the right to control employees.”). Rather, the
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Millers must indicate that O’Brien violated the Constitution through her own conduct—that she
“at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct of the offending officers.” Phillips, 534 F.3d at 543 (quoting Shehee, 199 F.3d at 300).
The Millers have failed to make the requisite showing. There is no evidence that O’Brien
decided to seek an indictment against the Millers nor that she was aware of their investigation at
all until after the indictment had been returned. The Millers maintain that O’Brien testified that
she had “some conversations” with Sleeper “about whether or not it was a questionable case.”
But in the context of the deposition dialogue, the opposite conclusion appears to be more
reasonable:
Q.

A.
Q.
A.
Q.

A.

Q.

A.
Q.
A.
Q.

And given that open door policy, was there ever any
time when Mr. Sleeper came to you through the
open door and said, let’s talk about this case, I want
to get your input, I want to get your opinion –
No.
-- on it?
No.
And I just want to be clear on this point. You don’t
remember any conversations, or there were no
conversations?
I don’t remember any conversations about this case.
I know there were some conversations about
whether or not it was a questionable case.
You don’t remember any conversations about this
case and you don’t remember any conversations
about whether it was questionable?
No. I know there were no conversations about –
You know there weren’t?
Right.
Okay.

Moreover, as the Defendants note, any conversations that O’Brien may have had with
Sleeper regarding the Millers’ indictment were entitled to absolute immunity. See Imbler v.

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Pachtman, 424 U.S. 409, 430-31, 430 n.33 (1976) (explaining that a prosecutor is entitled to
absolute immunity when she acts “as advocate for the State” and engages in activity that is
“intimately associated with the judicial phase of the criminal process”); see also Prince v. Hicks,
198 F.3d 607, 611 (6th Cir. 1999). The Millers also allege that O’Brien met with Larry Robbins
and Steve and Vikki Lutz, though precisely how this meeting led to a violation of the Millers’
constitutional rights remains unclear. However, to the extent that this meeting contributed to
O’Brien’s evaluation of the case, she enjoys the same absolute immunity as to this meeting.
Finally, the Millers maintain that O’Brien “was apparently involved” in the prosecutors’
decision not to interview the Millers when they offered to waive their Miranda rights. O’Brien
testified that though she was aware of the Millers’ offer, she was not involved in the decision to
decline it. Whatever O’Brien’s involvement in the meeting, though, she enjoys immunity for it
to the extent that it involved trial strategy.
III.

The district court properly awarded summary judgment to O’Brien as to the
invasion of privacy claim.
The Millers assert two theories of recovery of the tort of invasion of privacy: (1) the tort

of publicity given to one’s private life and (2) false light invasion of privacy.
a. Publicity given to private life
The Millers first assert that by allowing the Release to be posted on her office’s website,
O’Brien committed the tort of publicity to private life. Ohio law recognizes a claim for invasion
of privacy by publication of private facts. See Housh v. Peth, 133 N.E.2d 340 (Ohio 1956). To
establish such a claim, a plaintiff must demonstrate that (1) there is publicity; (2) the facts
disclosed concern an individual’s private life; (3) the matter publicized was one that would be
“highly offensive and objectionable to a reasonable person of ordinary sensibilities”; (4) the
publication was made intentionally, rather than negligently; and (5) the matter publicized was of
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no legitimate concern to the public. Killilea v. Sears, Roebuck & Co., 499 N.E.2d 1291, 1294-95
(Ohio Ct. App. 1985) (internal citation omitted).
The Restatement’s commentary acknowledges that the tort does not extend to
“[i]nvoluntary public figures”—that is, those individuals who “through their own conduct or
otherwise have become a legitimate subject of public interest.” Restatement (Second) of Torts,
§ 652D cmt. f.
Those who commit crime or are accused of it may not only not
seek publicity but may make every possible effort to avoid it, but
they are nevertheless persons of public interest, concerning whom
the public is entitled to be informed. . . . . These persons are
regarded as properly subject to the public interest, and publishers
are permitted to satisfy the curiosity of the public as to its heroes,
leaders, villains and victims, and those who are closely associated
with them.
Id. The Restatement further clarifies that “within the scope of legitimate public concern are
matters of the kind customarily regarded as ‘news.’ . . . Authorized publicity includes
publications concerning homicide and other crimes, arrests, police raids . . . and many other
similar matters of genuine, even if more or less deplorable, popular appeal.” Id. at § 652D
cmt. g.
According to the Millers, “[T]he facts disclosed are those concerning the Millers’
finances and private relationship with their mother.” (Appellant Br. at 23.) But the publicized
information was undoubtedly of public concern: though the Millers’ financial information and
familial relationships may have once been private matters, they became public upon issuance of
the indictment against them. “The commission of crime, prosecutions resulting from it, and
judicial proceedings arising from the prosecutions . . . are without question events of legitimate
concern to the public . . . .” Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975). Therefore, the

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district court did not err in concluding that the Release did not satisfy the second and fifth
elements of the Killilea test.
On appeal, the Millers maintain that even if legitimate public interest existed prior to
their trial, any such concern evaporated after their acquittal. (Appellant Br. at 24.) The district
court rejected this argument, finding instead that the indictment and its surrounding facts “did
not become ‘private’ issues the moment the public lost interest in them.” We agree. See G.B. v.
Rogers, No. 1:08-cv-437, 2009 WL 1322451, at *11 (S.D. Ohio May 11, 2009) (“There is no
privacy right in public records, including court records and the fact of an individual’s
conviction.”).
Moreover, even if the reposting of the Report constituted a new cause of action, the
Millers have identified no evidence that O’Brien was responsible for the new post. Ohio law
affords public employees statutory immunity unless their acts exceeded the scope of their
employment or were made “with malicious purpose, in bad faith, or in a wanton or reckless
manner.” Ohio Rev. Code Ann. § 2744.03(A)(6)(b). No evidence suggests that O’Brien was
aware of the Release’s reposting. For these reasons, the district court’s award of summary
judgment in O’Brien’s favor was not in error.
b. False light invasion of privacy
The Millers next allege that O’Brien committed the tort of false light invasion of privacy,
first by allowing the Release to be published and later by allowing the Release to be republished
after the Millers’ acquittal.
Having adopted the Restatement of Torts (Second), Ohio law provides that
one who gives publicity to a matter concerning another that places
the other before the public in a false light is subject to liability to
the other for invasion of his privacy if (a) the false light in which
the other was placed would be highly offensive to a reasonable
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person, and (b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the false light
in which the other would be placed.
Welling v. Weinfeld, 866 N.E.2d 1051, 1059 (Ohio 2007). Comment b to section 652E notes that
defamation is not necessary for a plaintiff to succeed on a false light theory. Rather, “[i]t is
enough that he is given unreasonable and highly objectionable publicity that attributes to him
characteristics, conduct or beliefs that are false, and so is placed before the public in a false
position.” Restatement (Second) of Torts, § 152E cmt. b.
Though O’Brien initially moved to dismiss this claim on the basis that the Release
contained no false statements, the district court rejected that argument at the pleadings stage. “If
the grand jury indictment were obtained by false testimony and Defendants knew of that fact,
publicizing the indictment without reference to the false testimony could arguably place
Plaintiffs in a ‘false light.’” See Penwell v. Taft Broad. Co., 469 N.E.2d 1025 (Ohio Ct. App.
1984). As discussed above, however, no evidence suggests that the indictment was obtained
with false evidence—and even if this were the case, there is no evidence that O’Brien was aware
of that fact.
Importantly, truth is a defense to an action for false-light invasion of privacy. See
Alahverdian v. Grebinski, No. 3:13-CV-00132, 2014 WL 2048190, at *14 (S.D. Ohio May 19,
2014) (“The truth of a statement serves as a defense against claims of false light. As set forth by
Ohio law, in order to make a showing of false light, first, the statement made must be untrue.”
(internal quotation marks and citation omitted)). In the Millers’ view, the Release was replete
with false statements. They contend that the Release’s statement that they were indicted “for
stealing almost $95,000” was false; they insist that they were indicted only for allegedly stealing

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that amount of money. But as the district court noted, this argument disregards the meaning of
the word “indicted.” Moreover, the Release was clear that the Millers had not been tried.
The Millers also argue that the Release mischaracterized their relationship with Bettie.
The Release provided that the Millers were indicted for stealing a sum of money “from their 86year-old mother who was in their care.”

They again insist that Bettie was merely their

“roommate” and that she did not require their care until several years into her cohabitation with
them. They also contest the Release’s statement that Bettie “was diagnosed with dementia and
probable Alzheimer’s and was unable to care for herself.”
The district court rejected the Millers’ arguments, finding that “to the extent that these
statements cast a false light on the Millers’ caregiving responsibilities in the years between
Lester’s death and Bettie’s dementia/Alzheimer’s diagnosis, that falsity itself would not be
highly offensive to a reasonable person.” What is more, there is no evidence that O’Brien acted
in “reckless disregard” as to the falsity of this matter. See Welling, 866 N.E.2d at 1054. Ullom
testified that Larry Robbins told him that the Millers had been caring for Bettie, who he said
suffered from dementia and Alzheimer’s. Robbins also stated that his mother required help
managing her finances and certain other matters following her husband’s death. Even if this
information were ultimately inaccurate, it cannot be said that there was no basis for the statement
that the Millers were caring for Bettie.
Moreover, the district court acknowledged the Millers’ contention that the Release
“indicates falsely to the public that the Millers are criminals who abuse the elderly.” But as the
district court observed, this argument is grounded in the Millers’ insistence that they were
innocent of the criminal charges against them. And though they were ultimately acquitted, the
Release accurately reported the indictment against them. As the Defendants note, “The Millers[]

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cannot claim to have been portrayed in a false light simply because they had defenses to the
charges in the indictment.

By that rationale, every defendant who is acquitted following

indictment would have an action for false light.”
Finally, the Millers argue that even if the Release did not initially place them in a false
light, it did so when republished in the years following their acquittal. However, they provided
no evidence that O’Brien knew that the Release was republished on her office’s website or that
she controlled its republication. The Millers provided no evidence that O’Brien drafted the
Release, had knowledge of any of the inaccuracies claimed by the Millers, or otherwise acted
with malicious purpose, in bad faith, wantonly, or recklessly. Accordingly, the district court did
not err.
IV.

Intentional infliction of emotional distress
The district court reasoned that the Millers’ claim for IIED against Ullom was based

solely upon their argument that Ullom maliciously prosecuted them by lying to the grand jury,
and that the IIED claim against O’Brien was premised upon the invasion of privacy claims
against her. Having found no evidence to support either of these primary claims, the district
court granted Ullom and O’Brien’s motion for summary judgment as to the derivative IIED
claim.
The Ohio Supreme Court has established the elements of an IIED claim: “One who by
extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to
another is subject to liability for such emotional distress.” Yeager v. Local Union 20, Teamsters,
Chauffeurs, Warehousemen, & Helpers of Am., 453 N.E.2d 666, 671 (Ohio 1983) (citation
omitted), abrogated on other grounds by Welling, 866 N.E.2d at 1054-59. “[E]xtreme and
outrageous conduct” gives rise to liability when it is “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
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utterly intolerable in a civilized community.” Id. (quoting Restatement (Second) of Torts § 46
cmt. d.). “Whether conduct is ‘extreme and outrageous’ is initially a question of law for the
court.” Morrow v. Reminger & Reminger Co., L.P.A., 915 N.E.2d 696, 714 (Ohio Ct. App.
2009) (citation omitted).
As discussed above, the Millers presented no evidence that Ullom lied to or misled the
prosecutor’s office in an effort to cause them emotional distress. Instead, as the Defendants note,
two different judges have each found that the Millers’ prosecution was justified. And even if
Ullom can be said to have misjudged the evidence, this mistake does not constitute the “extreme
and outrageous conduct” contemplated by the tort of IIED.
The same is true of O’Brien’s press releases, which the district court stated did not
“shock the conscience” for purposes of a constitutional claim. The Millers have not appealed
that ruling, and they provide no evidence that O’Brien’s press releases were so “outrageous in
character” as to constitute IIED. Accordingly, the district court did not err by granting Ullom
and O’Brien summary judgment on the Millers’ IIED claims.
AFFIRMED.

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