Lewis v. City of Cleveland

Filing 76

Memorandum Opinion granting defendants' Motion for summary judgment (Related Doc # 65 ).Pursuant to Fed. R. Civ. Pro. 56, Judgment is entered in favor of the defendants on all remaining claims. Judge Donald C. Nugent(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHAEL LEWIS,
Plaintiff,
v.
CITY OF CLEVELAND, et al.,
Defendants.

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CASE NO. 1:13 CV 589

JUDGE DONALD C. NUGENT

MEMORANDUM OPINION

This matter is before the Court on Defendants, Jennifer Hernandez’s, Dorothy Todd’s,
Matrina Latesa’s, Brian Kluth’s, and Aman Gamble’s Motion for Summary Judgment. (ECF
#65). Plaintiff filed a Brief in Opposition to Defendants’ Motion for Summary Judgment, which
included a request that the Court reconsider its prior dismissal of Counts III, VI, and VII of the
Amended Complaint. (ECF #70). The remaining Defendants also filed a Reply in support of
their motion for summary judgment. (ECF #74). Having considered all of the submissions, and
having reviewed the undisputed facts and applicable law, this Court finds that Defendants’
Motion for Summary Judgment should be GRANTED.

Facts and Procedural History1
Plaintiff filed a Complaint in the Cuyahoga County Common Pleas Court against the City
of Cleveland and several individual officers in the Cleveland Police Department alleging various
civil rights violations. Defendant, City of Cleveland removed the case to Federal Court.
Plaintiff then filed an Amended Complaint adding Michael McGrath, Chief of Police as a
Defendant. (ECF #7). The city of Cleveland filed a motion to dismiss the claims against it.
(ECF # 10). The Court granted the City’s motion, dismissing Counts III, VI, and VII of the
Complaint, which were the only counts naming the City as a Defendant. (ECF # 19).
Subsequently, Chief McGrath filed his own motion to dismiss, and the Court granted that
motion, dismissing Chief McGrath from the case. (ECF # 27, 32). The remaining claims in the
First Amended Complaint are: (1) False Arrest/Unlawful Detention/False Imprisonment in
violation of 42 U.S.C. § 1983, against the individual police officers; (2) Excessive Force in
violation of 42 U.S.C. § 1983, against the individual police officers; (3) Unlawful Search and
Seizure of Property in violation of 42 U.S.C. § 1983 against the individual police officers; (4)
Failure to Intercede/Intervene in violation of 42 U.S.C. § 1983 against Defendant Sergeant
Gamble; (5) Intentional Infliction of Emotional Distress against the individual officers, and (6)
state law False Imprisonment against the individual officers.2 The case is now before the Court

1

Except as otherwise cited, the factual summary is based on 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 nonmoving party.
2

The Defendants also asked for summary judgment on Count III as it applies to
Defendant, Sergeant Gamble. The Court previously found, however, that Count III was
alleged only against the City of Cleveland and it was dismissed in full. (ECF #19).
-2-

on a Summary Judgment motion filed by the remaining individual defendants. (ECF #70).
The undisputed facts underlying this cause of action are as follows. In the early morning
hours of February 6, 2011, Cleveland police received a complaint of a loud party and the smell
of marijuana. Shortly thereafter, the complainant called again saying that her neighbor (Mr.
Lewis) came to her door with a gun and threatened her. Officers Kluth and Koch (Hernandez)
responded to the call and interviewed the complainant.

The witnesses reported that they were

disturbed by loud music coming from Mr. Lewis’ apartment. When they asked him to turn down
the music, they allege that he told them to “get out of here,” and slammed the door.” They
reported that a few minutes later a woman (Jacquelyn Cook) banged on their door and when they
opened it, she put her foot in the doorway so they couldn’t close the door. They alleged that
parties all then stepped in the hallway and continued arguing until Mr. Lewis approached,
pointing a handgun down at the ground and saying “I’m gonna start firting [sic] up around here.”
At that point, the witnesses claim they feared for their safety and returned to their apartment and
called police a second time.” Dispatch records confirm “Another call state nieghbor [sic] came
to her door to with a FM with a gun and threatened her.” During their interview with the
responding officers, the witnesses appeared to be frightened and angry. Although the witnesses’
characterization of the events is disputed by Mr. Lewis, he does not dispute that he was asked to
turn his music down; that Ms. Cook returned to confront the witnesses for requesting that the
music be turned down; or that he approached the witnesses and Ms. Cook in the hallway while
having a gun on his person. Mr. Lewis also could not dispute that the witnesses may have seen
his gun, though he claims he did not brandish it or otherwise threaten them. Most importantly,
Mr. Lewis does not dispute that the witnesses and dispatch gave the above account to the

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responding officers or that this is the only information they were aware of before knocking on
his apartment door.
The parties agree that the responding officers then went to Mr. Lewis’s apartment and
knocked on his door. According to Plaintiff, they identified themselves as police and he
voluntarily opened the door. He claims they then immediately grabbed him, took his gun, and
handcuffed him. He does not dispute the he was carrying a gun that may have been visible when
he opened the door. Once he was handcuffed he was allowed to find his wallet to show
identification to the officers and then they sat with him in his living area until the OIC3 arrived.
Mr. Lewis claims that officers never told him why they had handcuffed him or arrested him. The
officers testified that they told both Mr. Lewis and Ms. Cook that a lady down the hall claimed
Mr. Lewis had drawn his weapon. Ms. Cook’s testimony corroborates the officer’s testimony on
this issue and states that she and Mr. Lewis denied that this occurred. When the OIC, Officer
Gamble, arrived he instructed the officers on scene to let Ms. Cook leave and to take Mr. Lewis
in on charges. Ms. Lewis claims that he was never told what charges he was being arrested for.
Mr. Lewis admits that when the officers were in his apartment, his eyes may have been
bloodshot; that there was an unopened beer on the dining room table; and, that there were
various empty alcohol containers in the apartment. He admits that he had a couple of drinks the
previous day and was about to have a drink when the officers came it, but claims that he had not
actually had a drink in about fifteen hours or so, since he arrived home from work round
11:30am or so the day before.

3

Although the parties do not define what OIC stands for, based on the context of this case,
the Court presumes this to mean “officer in charge.”
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Mr. Lewis was taken to the jail around 5:20 am on the morning of February 6, 2011. The
incident report indicates that he was arrested for aggravated menacing and having weapons while
under disability. He was booked and held until late morning on February 9, 2011 when he was
arraigned and released on personal bond. Neither side has produced evidence to show the
charges that were addressed at his arraignment. In the end, Mr. Lewis pled guilty to a ticket for a
minor misdemeanor noise violation.

Summary Judgment Standard
Summary judgment is appropriate when the court is satisfied “that there is no genuine
issue 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©. The burden of showing the absence of any such “genuine issue”
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 issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing FED. R. CIV. P. 56©). 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 issue 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

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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
issue 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 non-moving 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. Id.
Though parties must produce evidence in support of and in opposition to a motion for

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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(e) also has certain, more specific requirements:
[Rule 56(e)] requires that affidavits used for summary judgment purposes be
made on the basis of personal knowledge, set forth admissible evidence, and show
that the affiant is competent to testify. Rule 56(e) further requires the party to
attach sworn or certified copies to all documents referred to in the affidavit.
Furthermore, hearsay evidence cannot be considered on a motion for summary
judgment.
Wiley, 20 F.3d at 225-26 (citations omitted). 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.
Id. 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 issue 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.
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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 issues
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.
Analysis
I. Federal Claims
A. Qualified Immunity
The individual officers in this case argue that they are entitled to qualified immunity on
Plaintiff’s federal claims. Qualified immunity is “an immunity from suit rather than a mere defense
to liability.” Mitchell v. Forsyth, 472 U.S. 511, at 526 (1985). “The protection of qualified
immunity applies regardless of whether the government official’s error is ‘a mistake of law, a
mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan, 555
U.S. 223, at 231 (2009)(internal citations omitted).
Qualified immunity under federal law is applied using a two part test. Id. First, courts must
determine whether the alleged acts violate a constitutional right. Second, the court must determine
whether at the time of the actions, the constitutional right is “clearly established.” Saucier v. Katz,
533 U.S. 194 (2001).

The determination must be based on what an reasonable officer would

believe or understand under the circumstances given what was known to the officer. Fox v. DiSoto,
489 F.3d 227 at 236 (6th Cir. 2007). The standard is objective, and must not be applied using
hindsight unavailable to the officers at the time the action were taken. Id.

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B. False Arrest/Unlawful Detention/False Imprisonment in violation of 42 U.S.C. § 1983
The Plaintiff’s federal claims are all based on the allegation that he was arrested without
probable cause. There is no dispute that the Plaintiff was arrested without the issuance of a warrant.
The Constitution allows a police officer to arrest a suspect without a warrant if there is probable
cause to believe that the suspect has committed, is committing an offense, or is about to commit a
an offense. Dietrich v. Borrows, 167 F. 3d 1007 (6th Cir. 1999). Probable cause to arrest requires
“only the probability, and not a prima facie showing of criminal activity.” Illinois v. Gates, 464 U.S.
213, 235 (1983). Probable cause is an objective standard and is not reliant on the actual intent or
belief of the officer, himself.4 Probable cause exists when there are sufficient facts “to warrant a
prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an offense.” Painter v. Robertson, 185
F. 3d 557, 569 (6th Cir. 1999).
Plaintiff contends that the arrest should be invalidated because Ohio law disallows a
warrantless arrest for minor criminal offenses such as a noise violation. In the same argument,
Plaintiff argues that although he eventually pled guilty to a noise violation this was never stated as
the basis for his arrest. The incident report indicates that Mr. Lewis was being arrested for
aggravated menacing and having a weapon under disability, not simply for a noise violation. The
fact that he was not ultimately charged with or convicted of these offenses does not invalidate his
4

Because the standard is an objective one, the allegation that Officer Gamble said he didn’t
know what Mr. Lewis was being charged with but he’ll “think of something,” is actually
irrelevant to the analysis in this case. The question is not whether Officer Gamble believed
he had probable cause, or even cared whether he had probable cause, the question is
whether a reasonable prudent or cautious officer, knowing what these officers knew at the
time could have reasonably believed that Mr. Lewis had committed, was committing, or
was about to commit a crime.
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arrest if there was probable cause based on the information then available to the officers to support
his arrest on those two charges. Further, if his arrest was based on the noise violation he eventually
pled guilty to, the U.S. Supreme Court has held that an officer may make an arrest based on
probable cause that the offender committed a minor criminal offense without offending the United
States Constitution. Atwater v. City of Lago Vista, 532 U.S. 318 (2001). This is true even if the
arrest may be prohibited by state law.

Virginia v. Moore, 553 U.S. 164, Syllabus (2008). A

warrantless arrest, based on probable cause, even for a minor offense, would therefore be valid under
federal law, or at the very least be protected by qualified immunity as there is no clear established
federal law stating that it would constitute a constitutional violation.
In this case, the officers clearly had probable cause to arrest Mr. Lewis on the aggravated
menacing charge. The officers were dispatched to the scene on a report of a man threatening his
neighbors with a gun. Before going to Mr. Lewis’ apartment, the officers interviewed the
complaining witnesses and were told that Mr. Lewis approached them with drawn weapon and
threatened them. There appeared to be both frightened and angry. Mr. Lewis was armed when he
answered to door after the officers knocked. Given the facts presented to them by complaining
witnesses, and the fact that Mr. Lewis was armed when he answered the door, it was reasonable for
the officers to conclude that Mr. Lewis had probably been involved in the alleged criminal activity.
Mr. Lewis’ protestations of innocence are irrelevant to the determination of probably cause.
Probable cause does not require absolute proof of guilt, and does not require the police officer to
accept as true a suspects version of the events.

Under the facts available to them at the time, the

officers had probable cause to believe that Mr. Lewis had threatened his neighbors while in

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possession of a gun. Thus, the arrest was valid.5
Plaintiff argues that there was no evidence that Mr. Lewis posed a risk of danger to the police
or others. This is untrue. The officers had statements from two apparently frightened witnesses who
said Mr. Lewis had threatened them with a gun in retaliation for them complaining about his music
being too loud. Now he knew that they had called the police on him asserting much more serious
charges. Further, when police arrived he was armed just as the witnesses had reported. Whether
the witnesses apparent fear was justified, or even real, and whether their statements were found to
be credible or accurate after later investigation, is not germane to the analysis. Eyewitness
statements will constitute probable cause unless at the time of the arrest there is some apparent
reason for the officer to disbelieve them. Ahlers v. Schebil, 188 F.3d 365, 370 (6th cir. 1999). At
the time, this information provided by the witnesses constituted sufficient evidence to allow a
reasonably prudent officer to believe that a crime had been committed by Mr. Lewis.
Plaintiffs also argue that officers were required to consider exculpatory evidence in making
their determination of probable cause. The only “exculpatory” evidence cited that would invalidate
a finding of probably cause on the aggravated menacing charge were the statements of Mr. Lewis
and Ms. Cook and a lack of odor of marijuana. The lack of marijuana odor has no relation to the
charge of aggravating menacing. There is no evidence that the witnesses told the officers that Mr.
Lewis smelled of marijuana at the time of the alleged threat.6 There is also no indication that Mr.

5

Although there may be some question as to whether the facts known to the officers were
sufficient to create probable cause for the charge of having a weapon under disability, they
did not need probable cause on both charges in order to effectuate the arrest.
6

There is some indication that when the witness first called in to report a noise violation
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Lewis was charged with anything that would require a finding that he had smoked marijuana.
Further, as stated above, officers do not have to accept a defendant’s denial of culpability when
determining whether there was probable cause to arrest. In this case both Mr. Lewis and Ms. Cook
were potential defendants and had at the time of their statements already been accused of a crime.
The fact that they disavowed the witnesses account of the events is neither surprising nor sufficiently
exculpatory to negate a finding of probable cause.
There was no Fourth Amendment violation because there was probable cause for an arrest.
Further, there was no Fifth Amendment violation articulated. Procedural due process in connection
with the arrest has been satisfied because the arrest was made with probable cause. Mr. Lewis
makes no other allegation that would support a finding of a due process violation, either procedural
or substantive. As there was no constitutional violation in the arrest of Mr. Lewis, the officers are
entitled to qualified immunity for any mistakes of law or fact that may have played into the decision
to arrest Mr. Lewis.
To the extent that Mr. Lewis’ claims for false imprisonment and unlawful detention stem
from his claim that he was arrested without probable cause, they fail for the same reasons set forth
above. To the extent that they may stem from his allegation that he was held in excess of forty-eight
hours without an arraignment in violation of Atwater, 532 U.S. at 352, he has failed to present any
evidence that this alleged violation was perpetrated by the named officers in his Complaint. The
undisputed evidence provided by the Defendants is that none of the named officers had any control
or authority over when Mr. Lewis was arraigned or released from jail. Their potential liability

she also indicated she had smelled marijuana. This was not relayed in the dispatch to the
officers regarding the alleged threat, nor is there any evidence that the witnesses made this
claim to officers when they were interviewed in person.
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extended only to the point of incarceration. Officer Kluth testified that the “Court sergeant” would
have been the responsible party, however, neither the “Court sergeant,” nor any other individual
responsible for arraignments and/or release orders, was named in the First Amended Complaint.
Therefore, for all of the reasons set forth above, the Court finds that the individual officers named
in the First Amended Complaint are entitled to qualified immunity on Mr. Lewis’s claims for False
Arrest, Unlawful Detention and False Imprisonment. Further, even qualified immunity did not
protect the officers, there is no evidence to support Mr. Lewis’ claims.

C. Excessive Force in violation of 42 U.S.C. § 1983
The United State Supreme Court has determined that “all claims that law enforcement
officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or
other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its
‘reasonableness’ standard . . . .” Graham v. Connor, 490 U.S. 386, 395 (1989). The Fourth
Amendment to the Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the person or things to be seized.

The Fourth Amendment is applicable to the states and their subdivisions by the Fourteenth
Amendment.
Although the First Amended Complaint purports to state a claim for excessive force based
on the tightness of the handcuffs placed on Mr. Lewis during his arrest, Plaintiff has conceded that
he cannot meet the injury requirements for such a claim. Although tight handcuffing can be the basis

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for an excessive force claim, in order to survive summary judgment on such a claim a plaintiff must
provide evidence the he experienced some physical injury resulting from the handcuffing. Fettes V.
Hendershot, 375 Fed.Appx. 528, 533 (6th Cir. 2010). Plaintiff has admitted that he suffered no such
injury. Rather, he now claims that his excessive force claim is based solely on the amount of force
required to place him under arrest. He does not claim that the force was excessive to accomplish that
goal, but claims that because his arrest was unjustified, so was the accompanying force it took to
place him under arrest. As set forth above, the Court finds that his arrest was justified and supported
by probable cause. Therefore, Plaintiff has no claim for excessive force on this basis.

D. Unlawful Search and Seizure
Plaintiff’s claim for unlawful search and seizure is based on the officer’s entry into his
apartment prior to or in combination with his arrest. An officer is justified in entering a residence
without a warrant if exigent circumstances exist. Jones v. Lewis, 874 F.2d 1125, 1130 (6th cir. 1989).
Exigent circumstances exist under the following circumstances: (1) when officers are in hot pursuit
of a fleeing suspect; (2) when a suspect represents an immediate threat to the arresting officers and
public; or (3) when immediate police action is necessary to prevent the destruction of vital evidence
or thwart the escape of known criminals. United States v. Morgan, 743 F.2d 1158, 1162-63 (6th Cir.
1984). Officers are entitled to qualified immunity if their determination of probable cause to enter
a residence is wrong, as long as it passes the test of reasonableness.” Jeffers v. Heavrin, 10 F.3d 380,
381 (6th Cir. 1993).
In this case, even if the decision to enter Mr. Lewis’ apartment may, in retrospect, be argued
to be wrong, it was reasonable under all the circumstances known to the officers at the time. The

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decision cannot be second guessed based on information that has since come to light. Fox v. DiSoto,
489 F.3d 227 (6th Cir. 2007). As discussed in the analysis of probable cause for arrest, the officers
had been told by eyewitnesses that Mr. Lewis threatened them (his neighbors) with a gun, telling
them he was “gonna start firting [sic] up around here” because they had asked him to turn his music
down. When the officers knocked on Mr. Lewis’ door to follow up, he answered with a gun on his
person. The officers acted immediately to disarm Mr. Lewis and then proceeded to handcuff him
before they sat him down and made a determination regarding his arrest. This Court cannot say that
it was unreasonable under these circumstances for the officers to act, in an abundance of caution,
to immediately disarm Mr. Lewis in order to protect themselves and anyone else who may pass by
the open door. Further, even if their decision had been wrong, Plaintiff cites no clearly controlling
federal law that would have put the officers on notice that they were violating the U.S. Constitution
by entering and disarming Mr. Lewis under these circumstance. Therefore, the officers are entitled
to qualified immunity on this claim.

E. Failure to Intercede/Intervene
The Plaintiff’s claim for failure to intercede or intervene is based entirely on his
presupposition that his arrest was improper. As the Court has found that his arrest was proper under
federal law, this claim cannot be supported.

II. State Claims
The Defendants argue that they are entitled to statutory immunity with regard to the
Plaintiff’s state claims. Ohio Revised Code Chapter 2744 grants immunity to employees of political

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subdivisions for actions arising out of the course and scope of their employment with the political
subdivision.

Fabrey v. McDonald Village Police Dept. , 70 Ohio St.3d 351, 357 (1994).

Specifically, the statute provides immunity unless one of the following exceptions apply:
(1) the employee’s acts or omissions were manifestly outside the scope of their
employment;
(2) the employee’s acts or omissions were with malicious purpose, in bad faith, or in
a wanton or reckless manner; or
(3) civil liability is expressly imposed by a section of the Revised Code.
Ohio Rev. Code § 2744.03(A)(6)(a)-©.
There is no evidence that the Defendants in this case were ever acting manifestly outside the
scope of their employment and there is no evidence that the officers acted maliciously, in bad faith,
or in a wanton or reckless manner. Plaintiff makes a bald assertion that the Defendants Gamble,
Kluth and Koch acted recklessly and in bad faith in arresting him, but he provides no evidence to
support this allegation. The evidence, as discussed above, shows that the officers had sufficient
evidence in the form of eyewitness testimony and the corroborating fact that Mr. Lewis was in
immediate possession of a firearm to create probable cause for his arrest on a charge of aggravated
menacing. Plaintiff does argue that the alleged failure to inform Mr. Lewis of the cause of his arrest
violates Ohio Rev. Code Ann. §2935.07, and that he was improperly arrested for a minor
misdemeanor under § 2935.26(A). The First Amended Complaint, however, does not raise a claim
for violations of O.R.C. §2935.07, and although Plaintiff cites §2935.26 as the reason his arrest was
unlawful under state law, this statute does not expressly create civil liability for officers who violate
the section. The state claims raised in the Complaint are common law claims for

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false

imprisonment,7 and intentional infliction of emotional distress which do not satisfy the third
exception to the immunity statute. Therefore, the officers are entitled to statutory immunity.
Even if they were not entitled to immunity, however, the Plaintiff’s state law claims would
fail on the merits.

A. Intentional Infliction of Emotional Distress
In order to support a claim for intentional infliction of emotional distress under Ohio law,
Plaintiff must present evidence that shows that: (1) the actor either intended to cause emotional
distress or knew or should have known that actions taken would result in serious emotional distress
to the plaintiff; (2) the actor’s conduct was extreme and outrageous, went beyond all possible bounds
of decency, and can be considered as utterly intolerable in a civilized community; (3) the actor’s
actions were the proximate cause of the plaintiff’s psychic injury; and (4) the mental anguish suffered
by plaintiff is serious and of a nature that no reasonable person could be expected to endure. Gebers
v. Commercial Data Ctr., Inc, 47 F.3d 1168, 1995 WL 9262, at *3 (6th Cir. Jan. 10, 1995)
(unpublished)(citing, inter alia, Pyle v. Pyle, 463 N.E. 2d 98 (Ohio Ct. App. 1983); Yeager v. Local
Union 20, 6 Ohio St. 3d 369, 453 N.E. 2d 666 (Ohio 1983). The facts in this case do not support
such a claim.
The Ohio Supreme Court has emphasized that liability “has been found only where the
conduct has been 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 utterly intolerable in a civilized community.
7

Under Ohio law, the statutory cause of action for false imprisonment is a criminal action
against a private actor who unlawfully deprives someone of their liberty under O.R.C. §
2905.03.
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Yeager, 453 N.E.2d at 375 (quotes and citation omitted). The conduct complained of by Plaintiff
is in no sense egregious enough to meet this standard. As a matter of law, a police officer cannot be
liable for intentional infliction of emotional distress for the understandable distress that may
accompany an arrest and all of the attendant procedures and consequences, when the arrest was
lawful and was based upon probable cause, as this one has been determined to be.
Moreover, Plaintiff has not offered any evidence that he was emotionally injured, much less
that his injuries were severe and debilitating. In defining serious emotional distress, the Ohio
Supreme Court stated:
By the term “serious,” we of course go beyond trifling mental
disturbance, mere upset or hurt feelings. We believe that
serious emotional distress describes emotional injury which
is both severe and debilitating. Thus, serious emotional
distress may be found where a reasonable person, normally
constituted, would be unable to cope adequately with the
mental distress engendered by the circumstances of the case.
...
A non-exhaustive litany of some examples of serious
emotional distress should include traumatically induced
neurosis, psychosis, chronic depression, or phobia.

Paugh v. Hanks, 6 Ohio St.3d 72, 78 (1983) (citations omitted).
Plaintiff has made no claim that he has been treated for stress or any other emotional injury
allegedly arising out of his arrest. Defendants are, therefore, entitled to summary judgment on this
claim.

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B. State law claim for False Imprisonment
According to the Ohio law a claim for false imprisonment against an officer parallels a claim
for false arrest and requires a plaintiff to prove that he was unlawfully detained. Mikes v. Kent State
University, 1990 Ohio App. LEXIS 971 (Ohio App. March 8, 1990). Plaintiff claims that his arrest
in this case was unlawful because he was arrested without probable cause, and because O.R.C.
§2935.26 does not authorize an arrest for a minor misdemeanor unless certain circumstances not
present in this case exist. As set forth above, the officers in this case had probable cause to arrest
Mr. Lewis for aggravated menacing. The incident sheet prepared by the officers indicates that this
is one of two charges he was arrested for. Aggravated menacing is a first degree misdemeanor and
is not subject to the arrest restrictions set forth in O.R.C. §2935.26, which applies only to minor
misdemeanors. See, State of Ohio v. Hannan, 124 Ohio Misc. 2d 37; 2003-Ohio-3923; 792 N.E.2d
1141; 2003 Ohio Misc. LEXIS 21. Therefore, Plaintiff has provided no evidence that his arrest or
imprisonment was unlawful under Ohio law.

Conclusion
For the reasons set forth above, Defendant’s motion for summary judgment is GRANTED.
Pursuant to Fed. R. Civ. Pro. 56, Judgment is entered in favor of the Defendants on all remaining
claims. IT IS SO ORDERED.

/s/ Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED:

October 8, 2015

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