Thomas v. Cuyahoga Metropolitan Housing Authority et al
Memorandum Opinion Granting Defendant Hizak's motion for summary judgment as to Plaintiff's 1983 claim. The motion of Defendant CMHA for summary judgment is granted. The Court declines to accept supplemental jurisdiction over the remaining State law claims. Accordingly, the Clerk of Courts is ordered to Remand this action to the Court of Common Pleas for Cuyahoga County, Ohio. Signed by Judge Donald C. Nugent on 3/4/2013. (Related doc 34 , 38 )(B,B)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
HOUSING AUTHORITY, et al.,
Case No. 1: 11 CV 2727
JUDGE DONALD C. NUGENT
This matter is before the Court on the Motions of Defendants Brandon Hizak and
Cuyahoga Metropolitan Housing Authority (“CMHA”) for Summary Judgment. (ECF #34 and
#38) For the reasons that follow, the Motion of CMHA is granted and the Motion of Officer
Hizak is granted in part.
On November 11, 2010, Plaintiff Hazel Thomas was a tenant at CMHA’s Addison
Square apartment complex. During her tenancy with CMHA, Ms. Thomas signed multiple
“Drug-Free Household Statements” acknowledging that she was not permitted to have any
illegal drugs in her possession while on CMHA property, and that if such drugs were found in
her possession, she could face eviction. Ms. Thomas understood that this prohibition applied to
the possession of prescription drugs for which she did not have a prescription, and further
understood that such possession would constitute a felony.
The factual summary is derived from the parties’ statements of fact. Those material facts
which are controverted and supported by deposition testimony, affidavit or other
evidence are stated in the light most favorable to Plaintiff, the non-moving party.
Defendant Brandon Hizak was a sworn law enforcement officer employed by CMHA in
its police department at the time of the events at issue here. On November 11, 2010, Ms. Thomas
was visiting with her daughter in her daughter’s car parked just outside the entrance to her
building. Ms. Thomas saw Officer Hizak pull up to the front of the building and a friendly wave
was exchanged. Ms. Thomas had seen Officer Hizak a couple of times with the building
manager but had never met him. Ms. Thomas entered the building to get something for her
daughter and decided to gather her medications so she would not have to return to her apartment
before spending the evening with her boyfriend, Gregory Stallings, another resident of the
building. She placed three different medications into a single clear prescription bottle that had
her name on the label. Ms. Thomas walked through the lobby of the building holding the pill vial
on her way to her daughter’s car. Officer Hizak saw the pill vial and inquired about it. Ms.
Thomas told him that the pills were her prescribed prescription and continued outside to her
After sitting with her daughter for a time, Ms. Thomas re-entered the building. Officer
Hizak stopped Ms. Thomas and questioned her about the pill bottle in her hand. Officer Hizak
asked to see the pill bottle and Ms. Thomas claims that she gave the bottle to him after he
threatened her with a drug charge. Officer Hizak opened the bottle and asked her what the pills
were for. Plaintiff responded that they were prescription medications. Officer Hizak asked
Plaintiff if she had a prescription for the medications in the bottle and Ms. Thomas said she had a
prescription for each of the medications in her apartment. Officer Hizak followed Plaintiff to her
apartment to see if she had a prescription for the medications. At her apartment, Plaintiff opened
the door with her keys and entered leaving the keys in the door and the door open. Officer Hizak
took the keys from the door and entered the apartment. Officer Hizak states that he asked
Plaintiff if he could enter and told her it was not safe to leave the keys in the door. Officer Hizak
entered the apartment and closed the door behind him. Unknown to Officer Hizak the door locks
when closed. Ms. Thomas states that she did not invite Officer Hizak to enter but did not ask him
to leave. Ms. Thomas went to her bedroom to search for the prescriptions and Officer Hizak
followed her. He asked her if she was able to find her prescriptions and used his flashlight to
illuminate the dark bedroom. Ms. Thomas states that Officer Hizak shined the flashlight on both
dressers in the room and took a pill off of one of the dressers. At that point Ms. Thomas stated
they had to leave and suggested that the prescriptions might be in her boyfriend’s apartment.
Ms. Thomas left her apartment and proceeded to her boyfriend’s apartment with Officer Hizak
Upon reaching Mr. Stallings apartment, Ms. Thomas opened the unlocked door and went
in. Officer Hizak remained in the hallway and knocked on the door. Ms. Thomas invited him in.
Officer Hizak stood in the kitchen while Ms. Thomas looked for her prescriptions. Ms. Thomas
was unable to locate her prescriptions. Mr. Stallings came out of the bedroom and asked what
was going on. Officer Hizak noticed two pills on a table and asked what they were for and
whether Plaintiff and Mr. Stallings took each others pills. Ms. Thomas states that Officer Hizak
threatened them both with drug charges and eviction. Officer Hizak states that he reminded them
both of CMHA’s drug policies, the violation of which would lead to eviction. Mr. Stallings
offered to get Officer Hizak a copy of Plaintiff’s prescriptions from the pharmacy. Officer Hizak
said that would be fine. Mr. Stallings returned to the bedroom, Officer Hizak handed the pill vial
back to Ms. Thomas and left the apartment.
The next day upon returning to her apartment, Plaintiff claims that her door was open and
her bathroom had been ransacked and her pills scattered. Plaintiff felt that Officer Hizak had
returned and was scared to stay in the unit. Officer Hizak states that he did not return to the
apartment and there is no evidence that he did. Mr. Stallings never obtained the pharmacy
printout and Officer Hizak did not raise the issue again.
One month later, Plaintiff filed a complaint with CMHA about Officer Hizak’s conduct.
Plaintiff asserts that CMHA concluded in writing that Officer Hizak was acting in accordance
with applicable laws and CMHA policies and customs. In her Amended Complaint Plaintiff
asserts state law claims of false imprisonment, assault, invasion of privacy and intentional
infliction of emotional distress against Officer Hizak and a federal claim of civil rights violations
pursuant to 42 U.S.C. §1983 against both CMHA and Officer Hizak. Both Defendants now move
for summary judgment.
STANDARD OF REVIEW
Summary judgment is appropriate when the court is satisfied that there is no genuine
dispute as to any material fact and that the moving party is entitled to a judgment as a matter of
law. FED. R. CIV. P. 56(a). The burden of showing the absence of any such “genuine dispute”
rests with the moving party:
[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
affidavits, if any, which it believes demonstrates the absence of a genuine [dispute] of
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56(c)). A fact is
“material” only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Determination of whether a factual dispute is “genuine”
requires consideration of the applicable evidentiary standards. The court will view the summary
judgment motion in the light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d
937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of
a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57
F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence
presented is “merely colorable” and not “significantly probative” the court may decide the legal
dispute and grant summary judgment. Anderson, 477 U.S. at 249-50 (citations omitted). In most
civil cases involving summary judgment, the court must decide “whether reasonable jurors could
find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” Id.
at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and
convincing evidence, it must show that it can produce evidence, which if believed, will meet the
higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989).
Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmover. The nonmoving party may not simply rely on its pleadings, but must “produce evidence
that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep’t of
Transp., 53 F.3d 146, 149 (6th Cir. 1995). FED. R. CIV. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or denials of the adverse party’s
pleading, but the adverse party’s response, by affidavits or as otherwise provided in this
rule, must set forth specific facts showing that there is a genuine issue for trial.
The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as
an automatic grant of summary judgment, where otherwise appropriate. FED. R. CIV. P.
Though parties must produce evidence in support of and in opposition to a motion for
summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred
with the Ninth Circuit that “it is well settled that only admissible evidence may be considered by
the trial court in ruling on a motion for summary judgment.” Wiley v. United States, 20 F.3d
222, 225-26 (6th Cir. 1994) (quoting Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1181
(9th Cir. 1988)). FED. R. CIV. P. 56(c) also states that:
(2) [a] party may object that the material cited to support or dispute a fact cannot be
presented in a form that would be admissible in evidence
(4) An affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.
FED. R. CIV. P. 56(c)(2),(4). However, evidence not meeting this standard may be considered
by the district court unless the opposing party affirmatively raises the issue of the defect.
If a party fails to object before the district court to the affidavits or evidentiary materials
submitted by the other party in support of its position on summary judgment, any
objections to the district court’s consideration of such materials are deemed to have been
waived, and [the Sixth Circuit] will review such objections only to avoid a gross
miscarriage of justice.
Wiley, 20 F.3d at 226 (citations omitted).
As a general matter, the district judge considering a motion for summary judgment is to
examine “[o]nly disputes over facts that might affect the outcome of the suit under governing
law.” Anderson, 477 U.S. at 248. The court will not consider non-material facts, nor will it
weigh material evidence to determine the truth of the matter. Id. at 249. The judge’s sole
function is to determine whether there is a genuine factual dispute for trial; this does not exist
unless “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.” Id.
In sum, proper summary judgment analysis entails “the threshold inquiry of determining
whether there is the need for a trial – whether, in other words, there are any genuine factual
disputes that properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.” Anderson, 477 U.S. at 250. It is with this standard in mind
that the Motions for Summary Judgment shall be decided.
Moving first to Officer Hizak’s Motion for Summary Judgment, Officer Hizak asserts
that he is entitled to qualified immunity and summary judgment on Plaintiff’s Fourth
Amendment Claim under § 1983. In addition, he further contends that he is entitled to summary
judgment on Plaintiff’s state law claims as well. The Court will address the federal claim under
§ 1983 first.
I. Qualified Immunity on § 1983 Claim
Officer Hizak moves for summary judgment based on qualified immunity. Qualified
immunity is an affirmative defense that protects government officials performing discretionary
functions from civil suits if “their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In order to determine whether qualified immunity is warranted, a
court must ask (1) whether the alleged facts, taken in a light most favorable to the party asserting
the injury, show that the official’s conduct violated a constitutional right; and (2) whether the
constitutional right was clearly established in the specific context so that a reasonable official
would understand that he is violating that right. Saucier v. Katz, 533 U.S. 194, 202 (2001). A
court need not address these steps in any particular order, nor must a court address both steps if
the defendant makes an insufficient showing on one. Pearson v. Callahan, 555 U.S. 223 (2009).
Whether a defendant is entitled to qualified immunity is a purely legal question appropriate for
summary judgment, but summary judgment is inappropriate where “the legal question of
immunity is completely dependent upon which view of the facts is accepted by the jury.” Adams
v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994). Therefore, this Court must view the disputed facts in
a light most favorable to Plaintiff when making its determination on the issue of qualified
immunity. See Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900 (6th Cir. 2004); Kelley v.
LANs, No. 3:05-CV-7474, 2007 U.S. Dist. LEXIS 51944, at *13-14 (N.D. Ohio Jul. 18, 2007).
As with summary judgment, the burden of proof shifts between parties in a case where a
defendant asserts that he is qualifiedly immune from suit. The defendant bears the initial burden
of coming forward with facts that suggest that he acted within the scope of his discretionary
authority at the time in question. Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir.
1992). The burden then shifts to the plaintiff to show that the defendants are not entitled to
qualified immunity. Untalan v. City of Lorain, 430 F.3d 312, 314 (6th Cir. 2005); Cartwright v.
City of Marine City, 336 F.3d 487, 490-1 (6th Cir. 2003). This burden requires that the plaintiff:
(1) identify a clearly established right; and (2) establish that a “reasonable officer in the
defendant’s position should have known that the conduct at issue was undertaken in violation of
that right.” Green v. Reeves, 80 F.3d 1101, 1103 (6th Cir. 1996). The plaintiff must present
additional facts that show not only a violation of his rights but also “that those rights were so
clearly established when the acts were committed that any official in the defendant’s position,
measured objectively, would have clearly understood that he was under an affirmative duty to
refrain from conduct.” Veney v. Hogan, 70 F.3d 917, 921 (1995) (citation omitted).
Officer Hizak contends that Plaintiff cannot establish any unconstitutional seizure in
violation of the Fourth Amendment. In Count Four of her Amended Complaint alleging
violation of § 1983, Plaintiff asserts that “Officer Hizak, without just cause or provocation, with
the threat of force and show of authority, repeatedly detained, threatened, coerced, and restrained
Plaintiff’s freedom of movement....” (ECF #8, ¶24) Defendant interprets this allegation as
asserting a claim for an unreasonable seizure of her person in violation of the Fourth
Amendment’s prohibition against unreasonable searches and seizures. No other constitutional
violations are alleged in Count Four. In response to Defendant’s motion for summary judgment,
Plaintiff argues that in addition to violating the proscription against an unreasonable seizure of
her person, Officer Hizak’s conduct also constituted an unreasonable seizure of the pill vial and
an unreasonable search of her apartment. The Court need not address claims that are asserted for
the first time only in response to a motion for summary judgment. See Desparois v. Perrysburg
Exempted Village School, 455 Fed. Appx. 659, 666 (6th Cir. 2012); Tucker v. Union of
Needletrades, Indust. & Textile Emps., 407 F.3d 784 (6th Cir. 2005).
Officer Hizak asserts that he is entitled to qualified immunity because Plaintiff has failed
to present sufficient evidence to establish that Officer Hizak’s investigatory stop violated the
Fourth Amendment. A law enforcement officer is permitted under the Fourth Amendment to
conduct an investigatory stop if he has a “reasonable suspicion” of criminal activity. Terry v.
Ohio, 392 U.S. 1 (1968); Smoak v. Hall, 460 F.3d 768, 778 (6th Cir. 2006); Feathers v. Aey, 319
F.3d 843, 848-49 (6th Cir. 2003). While hard to define, reasonable suspicion for an investigatory
stop “requires more than a ‘mere hunch,’ but it is satisfied by a likelihood of criminal activity
less than probable cause, and ‘falls considerably short of satisfying the preponderance of the
evidence standard.’” Smoak, 460 F.3d at 778 (citations omitted). In other words, a police officer
may stop and question an individual without violating the Fourth Amendment if he possesses “a
particularized and objective basis for suspecting the particular person . . . of criminal activity
based upon specific and articulable facts.” Hoover v. Walsh, 682 F.3d 481, 494 (6th Cir. 2012).
The Court must examine the totality of the circumstances in determining whether reasonable
suspicion exists. “[T]he lawfulness of an investigatory stop is judged by the totality of the
circumstances to ‘determine whether individual factors, taken as a whole, give rise to reasonable
suspicion, even if each individual factor is entirely consistent with innocent behavior when
examined separately.” Id. at 494 (citing United States v. Campbell, 549 F.3d 364, 370 (6th Cir.
In this case, Officer Hizak asserts that he had a reasonable basis to suspect that Plaintiff
may have been involved in criminal activity because under Ohio law, the possession of
controlled substances is a crime unless the person “obtained the controlled substance pursuant to
a lawful prescription issued by a licensed health professional authorized to prescribe drugs.”
Ohio Rev. Code § 2925.11. The existence of a lawful prescription is an affirmative defense that
must be proven by the defendant. See State of Ohio v. Skorvanek, 182 Ohio App.3d, 2009-Ohio1709. Officer Hizak states in his deposition that he saw Ms. Thomas carrying a pill vial with
different types of pills. Officer Hizak stated that the vial was a plastic see through bottle and Ms.
Thomas was carrying the vial between her thumb and index finger. Accordingly, Officer Hizak
asserts that it was reasonable for him to question Ms. Hizak about the nature of the drugs and
whether she had a valid prescription for all of them. Ms. Thomas argues that while the bottle was
see-through plastic, a label covered most of the bottom of the bottle. Thus, she does not believe
that Officer Hizak actually could see that there were different types of controlled substances in
the bottle, and consequently he lacked reasonable suspicion to stop her to question her about the
substances or to seize the bottle. In her deposition, Ms. Thomas reluctantly acknowledged that
Officer Hizak had right to stop and question her based on what he observed–multiple pills in an
unmarked vial. Ms. Thomas’ disbelief, without any supporting evidence, that Officer Thomas
did not actually observe different pills in the vial before he stopped her does not create a material
question of fact. She was in fact carrying different controlled substances for which she did not
have a prescription, at least on her person, at the time of the stop. The Court finds that Officer
Hizak had reasonable suspicion to stop Plaintiff to question her about the drugs she was carrying,
examine the pill bottle and its contents and to question whether she had valid prescriptions for
Plaintiff next asserts that Officer Hizak unreasonably prolonged the stop by going to her
apartment in search of a valid prescription. However, as Officer Hizak notes, Plaintiff prolonged
the stop by failing to provide any evidence of a lawful prescription. Rather, she told him she had
the prescriptions in her apartment. The question of whether Officer Hizak asked her to get the
prescriptions or whether Plaintiff offered is not material. Plaintiff admits she told Officer Hizak
that she had the prescriptions in her apartment and that she knew that she was leading Officer
Hizak to her apartment in order to get the prescriptions to prove she had not violated the law.
While Plaintiff states that she found Officer Hizak to be intimidating because he was carrying a
gun, she admits that Officer Hizak never used any force, or threat of force, to restrain her at any
time. It was not unreasonable for Officer Hizak to follow through with Plaintiff’s offer to
produce valid prescriptions for the controlled substances in her possession.
When they arrived at Plaintiff’s apartment, Plaintiff left her keys in the door and the door
open. She did not object when Officer Hizak followed her into her apartment while she looked
for her prescriptions. Based upon the totality of the circumstances, it was reasonable for Officer
Hizak to believe that Plaintiff consented to his entry into her apartment. Ms. Thomas states that
she was uncomfortable when Officer Thomas entered her bedroom and shined his flashlight into
the dark room to illuminate her dressers. However, when she was unable to find her prescriptions
and asked him to leave he complied. Moreover, the only reason Officer Hizak followed her to
Mr. Stallings apartment was because she told him that a pill vial with a valid prescription label
may be in that apartment. There is no question that Officer Hizak was invited into Mr. Stallings
apartment and that he stayed only long enough for Ms. Thomas to search for her pill vial. When
Plaintiff failed to find the pill bottle, Officer Thomas accepted Mr. Stallings offer to get her
pharmacy records and left. Officer Thomas returned Plaintiff’s pill vial as well as the single pill
from her dresser before he left Mr. Stallings’ apartment. Based upon the totality of the
circumstances in this case, Officer Hizak’s investigatory stop was reasonable and the degree of
intrusion was limited to conducting the most limited investigation necessary to confirm or dispel
his suspicions. See Hoover, 682 F.3d at 498.
Plaintiff’s suggestion that Officer Hizak violated the Fourth Amendment because he
made her feel as though she was unable to leave her apartment, and thus was “seized” is
unpersuasive. A Fourth Amendment seizure occurs when, in view of all the circumstances
surrounding the incident, a reasonable person would have believed that he was not free to leave.
Smoak, 460 F.3d at 778. There is no evidence that Plaintiff was actually seized in that she was
not handcuffed or prevented physically from leaving her apartment. There is no allegation that
Officer Hizak touched her or in any way attempted to physically restrain Plaintiff. Indeed,
Officer Hizak left her apartment without complaint or discussion when she said they needed to
leave. Moreover, the Court has already determined that Officer Hizak’s investigatory stop
including the brief trips to the two apartments was reasonable in these circumstances.
Plaintiff also suggests that Officer Hizak’s seizure of the pill vial violated the Fourth
Amendment. However, as discussed above, Plaintiff handed over the pill vial during the initial
stop and Officer Hizak’s brief detention of it to evaluate his suspicions of unlawful drug activity
was reasonable. The pill vial was returned to Plaintiff within a reasonable time.
In sum, the facts, viewed in a light most favorable to Plaintiff, do not show that Officer
Hizak violated her Fourth Amendment rights. Officer Hizak has met his burden of producing
facts showing that he acted within the scope of his discretionary authority at the time in question.
Plaintiff has not carried her burden of showing that a reasonable officer in the defendant’s
position should have known that the conduct at issue was undertaken in violation of her Fourth
Amendment rights. The second part of the qualified immunity standard places the burden on the
Plaintiff to present specific case law to establish that Office Hizak should have clearly known
that his conduct was unconstitutional “in the situation he confronted.” Brosseau v. Haugen, 543
U.S. 194, 200 (2004) Ms. Thomas does not cite to any cases that would establish that a
reasonable police officer in Officer Hizak’s position would have clearly known that he lacked
reasonable suspicion to conduct the investigatory stop at issue here. Accordingly, Officer Hizak
is entitled to qualified immunity on Plaintiff’s § 1983 claim.
Plaintiff also asserts a § 1983 claim against Defendant CMHA that asserts that CMHA
“established, instituted, maintained and encouraged an express policy and procedures to
unlawfully, illegally, and wrongfully detain, threaten, harass, and restrain persons, thereby
causing the ... constitutional deprivations by Defendant Hizak, who was acting in accordance
with such policy and/or in accordance with a widespread well-settled practice, constituting
custom or usage under color of State law and official ...CMHA policy, all of which has deprived
Plaintiff of her constitutional rights, privileges and immunities.” (ECF #8, ¶23) CMHA moves
for summary judgment on this claim because Plaintiff cannot establish any constitutional
violation by Officer Hizak. It is well established, and specifically recognized by Plaintiff, that
municipal liability cannot exist under § 1983 unless a constitutional violation has been proven.
See Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 679 (6th Cir. 2005) Thus, “if no
constitutional violation by the individual defendant is established, the municipal defendants
cannot be held liable under § 1983.” Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir.
2001); France v. Lucas, No. 1:07 CV 3519, 2012 WL 5207555, *9 (N.D. Ohio Oct. 22, 2012).
In this case, the Court has determined that Plaintiff failed to establish a constitutional
violation on the part of Officer Hizak and has determined that he is entitled to qualified
immunity for his actions on November 11, 2010. As such, CMHA is also entitled to summary
judgment in its favor on Plaintiff’s § 1983 claim.
II. State Law Claims
Because Plaintiff’s federal claim has been dismissed, the only remaining claims are state
law claims. It is generally recognized that where, as in this case, federal issues are dismissed
before trial, district courts should decline to exercise pendent, or supplemental, jurisdiction over
state law claims. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218
(1966); Taylor v. First America Bank-Waynd, 973 F.2d 1284, 1289 (6th Cir. 1992); Gaff v.
Federal Deposit Ins. Corp., 814 F.2d 311, 319 (1987) (after dismissing all federal claims, it was
error for the district court to have retained jurisdiction over the purported state law claims for the
purpose of dismissing them with prejudice. The district court instead should have remanded the
pendent state claims to the state court from which they were originally removed.); Burt v. Blue
Shield, 591 F.Supp. 755, 759 (S.D.Ohio 1984). In keeping with these precedents, the Court will
decline to assert supplemental jurisdiction over Plaintiff’s remaining State law claims and this
action will be remanded to the Cuyahoga County Court of Common Pleas from which it was
For the reasons set forth above, the Court hereby GRANTS Defendant Officer Hizak’s
Motion for Summary Judgment (ECF #34) as to Plaintiff’s § 1983 claim. The Motion of
Defendant CMHA for Summary Judgment (ECF #38) is GRANTED. The Court declines to
accept supplemental jurisdiction over the remaining State law claims. Accordingly, the Clerk of
Courts is ordered to REMAND this action to the Court of Common Pleas for Cuyahoga County,
IT IS SO ORDERED.
_/s/Donald C. Nugent_______
DONALD C. NUGENT
UNITED STATES DISTRICT COURT
DATED:__March 4, 2013____
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