Bickel v. Broken Rocks Cafe & Bakery et al
Filing
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Memorandum of Opinion and Order: This matter is before the Court upon the Motion for Summary Judgment filed by defendants the City of Wooster, Officer Matthew Simon, and Officer Kenneth Linz (the Wooster defendants) (Doc. 25 ) and the Motion for Summary Judgment of defendants Broken Rocks Cafeand Bakery, Glen Grumbling, Lisa Grumbling, and Sarah Stoner (the Broken Rocks defendants) (Doc. 19 ). The Wooster defendants' motion is granted as to all claims except the § 1983 excessive force claim in connection with the arrest and state law claim of assault and battery against Officer Simon. The Broken Rocks defendants' motion is granted. Judge Patricia A. Gaughan on 11/9/15. (LC,S)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Melissa Bickel,
Plaintiff,
-vs-
Broken Rocks Cafe and Bakery, et al.,
Defendants.
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CASE NO. 1:13 CV 01529
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
Introduction
This matter is before the Court upon the Motion for Summary Judgment filed by
defendants the City of Wooster, Officer Matthew Simon, and Officer Kenneth Linz (the Wooster
defendants) (Doc. 25) and the Motion for Summary Judgment of defendants Broken Rocks Cafe
and Bakery, Glen Grumbling, Lisa Grumbling, and Sarah Stoner (the Broken Rocks defendants)
(Doc. 19). For the reasons that follow, the Wooster defendants’ motion is GRANTED IN PART
and DENIED IN PART and the Broken Rocks defendants’ motion is GRANTED.
Facts
Plaintiff Melissa Bickel filed this Complaint against defendants Officer Matthew Simon,
Officer Kenneth Linz, the City of Wooster, Broken Rocks Cafe and Bakery, Glen Grumbling,
Lisa Grumbling, and Sarah Stoner.
This lawsuit arose out of an incident that occurred on July 16, 2012. According to
plaintiff, she met a man named Tim Parris for a “blind date” at the cafe. Plaintiff did not know
Mr. Parris and prior to July 16, 2012, she had never met him in person. When plaintiff arrived at
the cafe, Mr. Parris had already opened a tab and was drinking a beer. He ordered food and
drinks for both of them and plaintiff consumed some, but not all, of it. At most, plaintiff ordered
a glass of red wine, a small Greek salad, and a glass of beer for a total of $16.65.
When plaintiff went to the ladies’ room, Mr. Parris ordered dessert. Plaintiff never asked
that Mr. Parris order her dessert. When she returned to their table, plaintiff found that Mr. Parris
was no longer there. Plaintiff learned from server Sarah Stoner that while she was using the
restroom, Mr. Parris had packed up his belongings and left the restaurant. Mr. Parris’s departure
came as a surprise to plaintiff and she immediately sent him a text message and called him. He
did not answer the call, but he sent a text response.1 Ms. Stoner also tried to call Mr. Parris
without success. Mr. Parris did not return to the restaurant that evening.
Ms. Stoner informed plaintiff that she would have to pay the entire bill, which totaled
$127.86. Plaintiff disagreed and offered to pay only for what she herself had ordered. Ms.
Stoner responded by revising the bill to reflect what she believed plaintiff had consumed that
evening, in contrast to what she had simply ordered. The revised bill totaled $48.12. When
plaintiff refused to pay the revised bill, Ms. Stoner informed her that her refusal to pay would be
considered “stealing,” and she called the police. (Plaintiff Declaration).
Officer Linz was dispatched to the cafe, but Officer Simon arrived first since he was
already in the vicinity. (Matthew Simon depo. 10-11). Ms. Stoner explained to the officer that
plaintiff’s date had left without paying, and she asserted that plaintiff was refusing to pay her
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The plaintiff does not describe the substance of that response.
2
portion of the bill. According to plaintiff, the officer originally asked her to pay the entire bill.
She had her debit card in her hand and offered to pay for what she ordered. But, Officer Simon
refused to listen to her and he did not review either the original bill or the revised bill. (Plaintiff
Declaration). According to Officer Simon, the plaintiff appeared extremely intoxicated and she
was slurring her words. (Simon depo. 16). Plaintiff asserts that she was not intoxicated and had
three drinks that evening but was able to think clearly and control her physical movements.
(Plaintiff Declaration).
According to Officer Simon, and undisputed by plaintiff, he gave plaintiff numerous
opportunities to pay the revised bill in the amount of $48.12. (Simon depo. 33). Plaintiff states
that she told the officer and Ms. Stoner that she could not afford to pay. Officer Simon then
accused her of theft and applied handcuffs to her wrists. Officer Simon also grabbed her arm and
jerked her off a stool, which caused injury to her arm and shoulder. He squeezed plaintiff’s arm
tightly and pushed her outside. Officer Simon held her by her upper arms and jerked her in
sudden stop and start motions, which caused injury to her wrists. Once they were outside, the
officer placed both his hands on her shoulders and spun plaintiff around in a violent jerking
motion which caused pain to her neck and shoulders. Plaintiff was compliant and did not resist or
attempt to flee or present a threat to anyone. (Plaintiff Declaration).
Once the plaintiff was in the back of the police car, one of the cuffs slipped off her wrist.
She brought this to the officer’s attention and he became angry and shouted that “he put them on
nice the first time.” The officer then intentionally and forcefully tightened the handcuffs in order
to hurt her wrists. At the time of her arrest, plaintiff weighed approximately 110 pounds and is
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five feet four inches tall. (Plaintiff Declaration). Officer Simon is approximately six feet tall and
weighs about 210 pounds.
After Officer Simon placed plaintiff in the back of the police car, Officer Linz arrived at
the cafe. (Simon depo. 36-37). Officer Linz obtained witness statements while Officer Simon
transported plaintiff to jail. Officer Linz had no direct contact with plaintiff. (plaintiff depo. 8890). Plaintiff was processed and jailed at the Wayne County Jail. (Plaintiff Declaration). Officer
Simon filed an affidavit of probable cause indicating that the plaintiff was arrested on charges of
theft and resisting arrest. (Simon depo. 60-61).
Officer Linz obtained a witness statement from Ms. Stoner and learned that plaintiff’s
date was Tim Parris. (Linz Report). Officer Linz knew Mr. Parris personally since the third or
fourth grade and knew Mr. Parris’s parents. (Linz depo. 9-16). On the evening of the incident,
Officer Linz visited Mr. Parris’s parents’ home, but nobody answered the door. (Id. 47). Officer
Linz then called Mr. Parris’s father and left a message for Mr. Parris who later contacted Officer
Linz and informed him that he intended to return to the cafe on the following day in order to pay
the entire bill of $127.86. Officer Linz informed Mr. Parris that he would follow up with the
restaurant the next day. (Id. 53-54).
When asked why he did not arrest Mr. Parris, Officer Linz explained that he still needed
to conduct a photo lineup. He further indicated that he could not arrest Mr. Parris because he
“didn’t have proof beyond a reasonable doubt.” (Linz depo. 55-57).
The day after plaintiff’s arrest, Mr. Parris paid the bill in full. Ms. Stoner informed
Officer Linz that the owner of the cafe was not going to pursue criminal charges against Mr.
Parris. As a result, Officer Linz felt there was no need to conduct a “photo lineup.” (Linz
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Supplemental Report). In addition, Officer Linz specifically requested that the prosecutor not
pursue any criminal charges against Mr. Parris. (Id., Linz depo. 64). Officer Linz did not make
any such request with respect to the charges against the plaintiff. (Linz depo. 66).
No charges were brought against Mr. Parris. But in the months that followed, plaintiff
defended against charges of resisting arrest and theft. Plaintiff indicates that the theft charge was
dismissed on the eve of trial but that she went to trial on the resisting arrest charge and was found
not guilty. (Complaint, Plaintiff Declaration). Plaintiff asserts that as a result of the emotional
difficulty of dealing with the incident and her prosecution, she saw a psychologist at the
Cleveland Clinic, who diagnosed her with post-traumatic stress disorder. (Plaintiff Declaration,
Exhibit 2, p. 13).
The Complaint alleges federal constitutional claims of excessive force against Simon and
failure to intervene against Linz (Count One), false arrest against Simon (Count Three) and
attendant claims of municipal liability against the City of Wooster (Count Eleven). The plaintiff
also alleges claims under Ohio law including assault and battery (Count Two), false arrest (Count
Three), intentional infliction of emotional distress (Count Five), and negligence (Count Twelve)
against the Wooster defendants. Plaintiff asserts claims of negligent hiring, training, and
supervision (Count Seven) and respondeat superior (Count Eight) against the Broken Rocks
defendants. She also asserts claims of abuse of process (Count Four), conspiracy (Count Six),
defamation (Count Nine), and defamation per se (Count Ten) against all defendants.
The Broken Rocks defendants filed a Motion for Summary Judgment as to the claims
against them (Counts Four, Six, Seven, Eight, Nine, and Ten), to which the plaintiff has not filed
a response. The Wooster defendants also seek summary judgment as to Counts Four, Six, Nine,
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and Ten. In her opposition to the City of Wooster’s Motion for Summary Judgment, plaintiff
expressly submits that she does not oppose dismissal of Counts Four, Six, Seven, Eight, Nine,
and Ten. Therefore, the Court grants the Broken Rocks defendants’ Motion for Summary
Judgment in its entirety and the Wooster defendants’ motion as to Counts Four, Six, Nine, and
Ten.
This matter is now before the Court upon the Wooster defendants’ Motion for Summary
Judgment for the remaining counts.
Standard of Review
Summary Judgment is appropriate when no genuine issues of material fact exist and the
moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986) (citing Fed. R. Civ. P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376,
378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material
facts 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, 477 U.S. at 323 (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, 477 U.S. 242, 248 (1986).
Accordingly, the nonmoving party must present “significant probative evidence” to demonstrate
that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip
Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may not simply rely on
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its pleading, 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, 150 (6th Cir. 1995).
The evidence, all facts, and any inferences that may permissibly be drawn from the facts
must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs.,
Inc., 504 U.S. 451, 456 (1992). However, “[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.” Anderson, 477 U.S. at 252.
Summary judgment should be granted if a party who bears the burden of proof at trial
does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d 937,
941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence 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 (citation omitted).
Analysis
Counts One, Two, Three, Five, Eleven, and Twelve remain against the Wooster
defendants.
(1) Federal Claims
Counts One, Three, and Eleven assert claims under 42 U.S.C. § 1983. To prevail on a §
1983 claim, a plaintiff “must establish that a person acting under color of state law deprived [her]
of a right secured by the Constitution or laws of the United States.” Smoak v. Hall, 460 F.3d 768,
777 (6th Cir. 2006) (quoting Waters v. City of Morristown, 242 F.3d 353, 358-59 (6th Cir. 2001)).
Both officers have asserted the defense of qualified immunity “which shields government
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officials from ‘liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.’”
Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “In qualified immunity cases, the
plaintiff bears this burden; [she] must show that the defendant is not entitled to qualified
immunity.” Wysong v. City of Heath, 260 Fed.Appx. 848, 852 (6th Cir.2008) (citing Wegener v.
City of Covington, 933 F.2d 390, 392 (6th Cir.1991)).
When determining whether the allegedly injured party has met this burden, the Court
“typically employs a two-step analysis,” asking: “‘(1) whether, considering the allegations in a
light most favorable to the party injured, a constitutional right has been violated, and (2) whether
that right was clearly established.’” Smoak, 460 F.3d at 777 (quoting Estate of Carter v. City of
Detroit, 408 F.3d 305, 310-11 (6th Cir.2005)).
(a) Excessive force against Officer Simon
In Count One, plaintiff alleges that her constitutional rights were violated when Officer
Simon used excessive force when effectuating her arrest and excessively tightening her handcuffs.
To determine whether force is excessive, the Court considers whether the use of force was
“objectively reasonable” under the circumstances. Scott v. Harris, 550 U.S. 372, 381 (2007).
Reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight” and “‘not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Graham v.
Connor, 490 U.S. 386, 396 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)).
In evaluating whether an officer’s use of force was objectively reasonable, the following
factors should be considered: (1) the severity of the crime at issue; (2) the threat of immediate
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danger to the officers or bystanders; and (3) the suspect’s attempts to resist arrest or flee. Id. “The
calculus of reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments
in circumstances that are tense, uncertain, and rapidly
evolving about the amount of force that is necessary in a particular situation.” Id. at 396-97.
Officer Simon does not dispute that the alleged crime, theft, was not severe. The amount
in dispute was somewhere between $16.65 and $48.12. While the plaintiff was charged with
resisting arrest, she maintains that she did not resist arrest and that she was compliant with the
officer’s orders throughout the encounter. It is undisputed that the plaintiff’s trial for resisting
arrest was resolved in her favor. Plaintiff admits that she had consumed three drinks over the
course of the evening, but maintains that she was not intoxicated at the time of her arrest. There is
no evidence that the plaintiff presented a threat of immediate danger to officers or bystanders.
As discussed above, plaintiff claims Officer Simon accused her of theft and put handcuffs
on her; grabbed her arm and jerked her off of her stool, hurting her arm and shoulder; tightly
squeezed her arm and pushed her outside; held her by her upper arms, jerking her with sudden
start and stop motions which hurt her wrists; once outside, put both of his hands on her shoulders
and spun her around in a violent, jerking motion causing immediate pain in her neck and
shoulders; and, once in the police car, intentionally and forcefully tightened the handcuffs so that
they hurt both of her wrists.
Plaintiff maintains that as a result of Officer Simon’s actions, she had sore red wrists and
that the cuffs made a ridge in the skin around her wrists. She says her arm and shoulder were sore
for at least a couple weeks, and she had bruising and sustained a muscle strain of her shoulder and
arm. Plaintiff did not see a doctor for treatment because she knew the soreness, bruising and
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redness would go away on their own. Plaintiff also claims she suffered emotional injury as a
result of the incident, for which she sought counseling. (Plaintiff Declaration).
The Court accepts the plaintiff’s version of the facts and draws all reasonable inferences
in the plaintiff’s favor. Slusher v. Carson,540 F.3d 449 (6th Cir. 2008). If there is sufficient
evidence by which a reasonable jury could find in the plaintiff’s favor, the Court must deny the
motion. Anderson, 477 U.S. at 252. Considering that plaintiff, according to her version, was
compliant, did not pose an immediate threat, and did not resist or attempt to flee, there is an issue
of fact as to whether this force was reasonable.
Lustig v. Mondeau, 211 F. App’x 364 (6th Cir. 2006), is instructive. In that case, sheriffs
deputies stopped the plaintiff because she was operating a pontoon boat without an illuminated
navigation light, a minor offense. The plaintiff was intoxicated, agitated, and screaming at the
officers. The deputies grabbed the plaintiff’s arms and twisted them behind her back. When the
plaintiff verbally protested, the deputies twisted her arms harder. The plaintiff alleged that as a
result she suffered pain and permanent injury. The Sixth Circuit concluded that the plaintiff had a
clearly established right to be free from such use of force, holding that “it is sufficiently obvious
under Graham that it would be objectively unreasonable for an officer to gratuitously cause
additional pain to a nonviolent and, at most, passively resistant detainee while she is being
restrained in a full control hold by two officers.” Id. at 371-72.
In the present case, there is no evidence that the plaintiff was even passively resistant, and
it should have been clear to Officer Simon that the use of gratuitous force on a compliant suspect
was unlawful.
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The Court rejects Officer Simon’s argument that the force used to remove plaintiff from
the bar stool, guide her outside, and turn her around before placing her into the police car was
reasonable under the circumstances because it amounted to only a “moderate” amount of force.
The officer points out that she had only “[a] little bruising” and that her shoulder was “sore for a
couple of weeks.” (Doc. 25 at 8-9). The officer claims that the force alleged in this case amounts
to mere “random” pushing and shoving that does not rise to a constitutional violation because
“[t]he power to arrest necessarily carries with it the power to use some force to make an arrest.”
Lester v. City of Chicago, 830 F.2d 706, 712 (7th Cir. 1987).
The officer cites Collins v. Nagle, 892 F.2d 489, 496 (6th Cir. 1989). In Collins, the
defendant investigators placed the plaintiffs under arrest. When one of the plaintiffs refused to
produce identification, two of the defendants grabbed the plaintiff’s arms while a third took the
plaintiff’s wallet from his pocket. The plaintiff claimed that as a result he suffered from a bruised
back and arm. The Sixth Circuit concluded that the use of force was justified by the plaintiff’s
refusal to cooperate by providing identification.
Collins and the present case are similar because both involved officers grabbing and
holding the plaintiffs’ arms, which resulted in bruising. The two cases differ, however, because in
Collins the plaintiff did not comply with the investigator’s orders. In addition, while the arrest
was taking place, another suspect, whose intentions were uncertain, appeared on the scene. Here,
in contrast, plaintiff maintains that she was compliant throughout the incident and Officer Simon
was not facing any other potential threat.
“[T]he right to be free from physical force when one is not resisting the police is a clearly
established right.” Kijowski v. City of Niles, 372 F. App’x 595, 598 (6th Cir. 2010). For the
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foregoing reasons, the Court finds that Officer Simon is not entitled to qualified immunity as to
the force used in arresting plaintiff.
Plaintiff also maintains that Officer Simon excessively tightened her handcuffs. The
Fourth Amendment prohibits unduly tight or excessively forceful handcuffing during the course
of a seizure. Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6th Cir. 2001). In order for a
handcuffing claim to survive summary judgment, a plaintiff must offer sufficient evidence to
create a genuine issue of material fact that (1) plaintiff complained the handcuffs were too tight;
(2) the officer ignored those complaints; and (3) the plaintiff experienced “some physical injury”
resulting from the handcuffing. See Lyons v. City of Xenia, 417 F.3d 565, 575 76 (6th Cir. 2005).
There is no evidence that plaintiff affirmatively complained to Officer Simon that the
handcuffs were too tight or that the officer ignored her complaints. While there is evidence that
plaintiff said “ow” and flinched when the handcuffs were applied (plaintiff depo. 87), plaintiff
supplies no support for the proposition that this response constitutes a “complaint” for purposes
of this analysis. Summary judgment is appropriate as to this portion of Count One.
(b) False arrest against Officer Simon
Count Three alleges a § 1983 claim for unlawful arrest against Officer Simon. A claim for
unlawful arrest turns on whether the officer had probable cause to arrest under the Fourth
Amendment. Crockett v. Cumberland Coll., 316 F.3d 571, 579-80 (6th Cir. 2003). As with a
claim of excessive force, it is the Court’s duty to answer the question whether the officer’s actions
were reasonable under the circumstances. “[A] warrantless arrest by a law officer is reasonable
under the Fourth Amendment where there is probable cause to believe that a criminal offense has
been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Probable cause
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exists when “the facts and circumstances within [the officer’s] knowledge and of which [he or
she] had reasonably trustworthy information were sufficient to warrant a prudent [person] in
believing that the petitioner had committed or was committing an offense.” Beck v. State of Ohio,
379 U.S. 89, 91 (1964).
The question here is whether there is evidence by which a reasonable jury could conclude
that Officer Simon did not have probable cause to arrest plaintiff for theft. Ohio’s theft statute
provides:
(A) No person, with purpose to deprive the owner of property or services, shall knowingly
obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent;
(2) Beyond the scope of the express or implied consent of the owner or person
authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
(B)(1) Whoever violates this section is guilty of theft.
Ohio Revised Code § 2913.02.
Plaintiff maintains that summary judgment should be denied because there is no evidence
that she had the intent to deprive the cafe of goods or services at the time that she acquired them.
In support, plaintiff cites Brooklyn v. Fouche, 2006 WL 134824 (Ohio Ct. App. Jan. 19, 2006),
for the proposition that a conviction for the theft of food will not stand where there is no evidence
that the patron refused to pay for the items he ordered. Plaintiff points out that she had her debit
card in her hand, and she offered to pay for what she ordered which amounted to $16.65.
Even with the evidence viewed in the plaintiff’s favor, Officer Simon’s belief was
reasonable. It is not disputed that Officer Simon was called to the cafe on a report that a patron
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was refusing to pay her bill. Upon arrival, he spoke with plaintiff’s server who informed him that
plaintiff and her date, who had left without paying, had ordered and consumed $127.86 worth of
food and drinks. The server reported to the officer that plaintiff’s portion of the tab was $48.12
and that she was refusing to pay it.
Although plaintiff claims this amount did not represent the food that she had actually
ordered, Officer Simon was “under no obligation to give credence to [her] story nor should a
plausible explanation in any sense require the officer to forego arrest pending further
investigation if the facts as initially discovered provide probable cause.” Criss v. City of Kent, 867
F.2d 259, 263 (6th Cir. 1988). An officer who intends to execute a warrantless arrest is not tasked
with an “overly-burdensome duty to investigate.” Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir.
2007). “To hold otherwise would be to allow every suspect, guilty or innocent, to avoid arrest
simply by claiming ‘it wasn’t me.’” Id.
Plaintiff’s reliance on Fouche, supra, is misplaced. In that case, a criminal defendant
challenged the sufficiency of the evidence used to convict him of disorderly conduct and theft.
The court vacated the defendant’s conviction after concluding that no reasonable jury could have
found the defendant guilty of theft in the absence of evidence that the defendant intended to
deprive the restaurant of its property without paying for it. The issue here is not whether there was
sufficient evidence to convict the plaintiff of theft, but whether the officer had probable cause for
arrest.
Summary judgment is granted as to Count Three.
(c) Failure to intervene against Officer Linz
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Count One alleges that Officer Linz is liable for failing to intervene to prevent the
violation of plaintiff’s constitutional rights. A police officer may be held liable for failing to
prevent the violation of a citizen’s constitutional rights by another law enforcement officer.
Bruner v. Dunaway, 684 F.2d 422, 426 (6th Cir. 1982). To succeed on a failure to intervene
claim, a plaintiff must prove that the officer observed or had reason to know that a citizen’s
constitutional right has been violated, and the officer must have “both the opportunity and the
means to prevent the harm from occurring.” Floyd v. City of Detroit, 518 F.3d 398, 406 (6th
Cir.2008).
Plaintiff’s failure to intervene claim asserts that Officer Linz failed to protect her from
Officer Simon’s alleged use of excessive force. Plaintiff provides no evidence that Officer Linz
had the opportunity and means to prevent the use of force which occurred before plaintiff was
placed in the police car. It is undisputed that Officer Linz did not arrive at the cafe until after
plaintiff was already in the car. (pltf.depo. 88-89; Linz depo. 18-20).
Plaintiff’s claim that Officer Linz failed to protect her from false arrest also fails because
plaintiff’s claim against Officer Simon for false arrest has no merit.
Summary judgment is granted on the failure to intervene claim.
(d) Monell Claims against the City of Wooster
Count Eleven of the plaintiff’s complaint alleges § 1983 claims against the City of
Wooster. A municipality cannot be held liable for the constitutional violations of its employees
on a theory of respondeat superior. See Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
658 (1978). Rather, under Monell and its progeny, a municipality may be held liable only (1)
“when execution of a government’s policy or custom, whether made by its lawmakers or by those
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whose edicts or acts may fairly be said to represent official policy, inflicts the injury,” Monell,
436 U.S. at 694, and (2) when there is an “affirmative link between the policy and the particular
constitutional violation alleged.” Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). Thus, a
plaintiff must establish that the municipality’s official policies or customs were a “moving force”
behind the deprivation of her rights.
Plaintiff asserts the City of Wooster’s failure to investigate her arrest and to discipline the
officers involved in the arrest give rise to Monell liability. She maintains that Officer Simon’s
affidavit of probable cause conflicts with his narrative report. In the narrative report, Officer
Simon indicated that plaintiff refused to pay for the items that Mr. Parris had ordered,2 but the
affidavit to the prosecutor indicates that plaintiff refused to pay for the items that she herself had
ordered.3 The plaintiff asserts that despite this discrepancy, Wooster’s chief of police did not
conduct any investigation into the basis for plaintiff’s arrest.
2
The narrative report states in pertinent part:
Bickel then told me that she believed she should not have to pay the entire bill as
a man who she had met off an online dating service had ran out on her. I
explained to Bickel that she was only responsbile for the $48.21 and not the entire
bill of $127.86. Bickel told me that she believed that she was not responible for
the bill for $48.12 as the man she had been with had actually ordered the items she
consumed.
(Doc. 31-2).
3
The affidavit to the prosecutor states, in pertinent part:
Bickel was refusing to pay the entire bill as her date had already left. The caller
[Ms. Stoner] did a complete separate receipt/bill for Bickel charging her for only
the items she had actually ordered, however she refused to pay this bill as well.
(Doc. 31-3, pp. 1-2).
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Plaintiff’s Monell claim fails. The only potential constitutional violation in this case is
Officer Simon’s alleged use of excessive force. There is no connection or “affirmative link”
between the failure to investigate the reports and the excessive force.
Summary judgment is granted as to Count Eleven.
(e) Claims against the officers in their official capacities
“[A] section 1983 action against a city official in his or her official capacity is treated as
an action against the City entity itself.” Barber v. City of Salem, Ohio, 953 F.2d 232, 237 (6th Cir.
1992). Thus, the plaintiff’s duplicative official capacity claims against the individual officers are
dismissed. See Frieg v. City of Cleveland, 2013 WL 3200628, at *2 (N.D. Ohio June 23, 2013)
(dismissing official capacity claims duplicative of claims against a municipality).
(2) State law claims
(a) State law immunity
Plaintiff asserts state law claims of assault and battery, intentional infliction of emotional
distress, false arrest, and negligence against the Wooster defendants. Defendants argue they are
statutorily immune as to these claims pursuant to Ohio Revised Code §§ 2744.02 and 2744.03.
The immunity analysis in relation to a political subdivision, such as the City of Wooster, differs
from that relating to political subdivision employees, such as the two officers in this case.
Lambert v. Clancy, 125 Ohio St. 3d 231, 233-34, 927 N.E.2d 585, 588 (2010). Therefore, the City
of Wooster will be addressed separately from the officers.
(i) City of Wooster
It is well-established that under Ohio Revised Code § 2744.02, political subdivisions are
immune from intentional torts. Wilson v. Stark Cty. Dept. of Human Servs., 70 Ohio St.3d 450,
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639 N.E.2d 105 (1994). Because the City of Wooster is a political subdivision under §
2744.01(F), it is immune from the plaintiff’s claims of assault and battery, intentional infliction of
emotional distress, and false arrest. Thus, the remaining issue is whether the City of Wooster can
be held liable for the tort of negligence.
In determining whether a political subdivision, such as the City of Wooster, is statutorily
immune under Ohio law, the Court engages in a three-tiered analysis. See id at 588. Under the
first tier, a political subdivision is immune from liability in damages for acts of the political
subdivision or one of its employee in connection with a government function. Id.; see also Ohio
Revised Code § 2744.02(A)(1). The second tier provides five exceptions to this immunity.
Lambert, 927 N.E.2d at 588; see also Ohio Revised Code § 2744.02(B). If an exception applies,
courts move to the third tier to determine if immunity is reinstated under any of the defense
provisions in Ohio Revised Code § 2744.03. Lambert, 927 N.E.2d at 588.
In this case, with respect to the claims against the City of Wooster, the general grant of
immunity applies. The provision of police services is a governmental function. Ohio Revised
Code § 2744.01(C)(2)(a). Thus, the general grant of immunity applies in this instance. Exceptions
to immunity include (1) operation of a motor vehicle (with some exceptions); (2) negligent
performance of proprietary functions; (3) failure to keep public roads in repair and free from
nuisance; and (4) negligence of an employee that occurs within or on the grounds of buildings
used in performing governmental functions. Further, political subdivisions may be liable if
liability is imposed by statute. Ohio Revised Code § 2744.02(B)(5). None of the listed exceptions
apply. Therefore, summary judgment is granted as to plaintiff’s state law claims against the City.
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(ii) Officer Simon
Under Ohio Revised Code § 2744.03(A)(6), an employee of a political subdivision is
personally immune from liability unless
(a) [t]he employee’s acts or omissions were manifestly outside the scope of the
employee’s employment or official responsibilities;
(b) [t]he employee’s acts or omissions were with malicious purpose, in bad faith, or in a
wanton or reckless manner; [or]
(c) [c]ivil liability is expressly imposed upon the employee by a section of the Revised
Code]
“[A]llegations of negligence are insufficient to overcome the immunity granted to an employee of
a political subdivision who acts within his or her official duties.” Fabrey v. McDonald Village
Police Dept., 70 Ohio St.3d 351, 356 (1994).
The only question is whether Officer Simon acted maliciously, in bad faith or in a wanton
or reckless manner. The term “malice” is defined as the “willful and intentional design to do
injury, or the intention or desire to harm another, usually seriously, through conduct which is
unlawful or unjustified.” Jackson v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio App.3d 448,
453 454 (Ohio Ct. App. 1991). The definition of “bad faith” involves “some interested or sinister
motive” for which there is no “reasonable justification.” Hicks v. Leffler, 119 Ohio App.3d 424
(Ohio Ct.App.1997). “Reckless” is defined as “disregard of the safety to others if he does an act
or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason
to know of facts which would lead a reasonable man to realize, not only that his conduct creates
an unreasonable risk of physical harm to another, but also that such risk is substantially greater
than that which is necessary to make his conduct negligent.” Thompson v. McNeill, 53 Ohio St.3d
19
102, 104 105 (Ohio 1990). Wanton misconduct has been defined as the failure to exercise any
care whatsoever. See Fabrey, supra (citing Hawkins v. Ivy, 50 Ohio St.2d 114, syllabus (Ohio
1977) ).
There is sufficient evidence to demonstrate that Officer Simon acted with malice, in bad
faith, or recklessly when effectuating the plaintiff’s arrest for the same reasons discussed above in
the federal excessive force claim. Therefore, Officer Simon is not entitled to statutory immunity.
(iii) Officer Linz
Plaintiff asserts that Officer Linz is not immune from her claims of intentional infliction
of emotional distress and negligence because he took steps to protect Mr. Parris from prosecution
but not plaintiff. The Court will not infer maliciousness or a bad faith motive based on Officer
Linz’s actions. Officer Simon had a reasonable basis to arrest plaintiff for theft and there is no
basis to find that Officer Linz acted in bad faith or with maliciousness in not seeking her release
or dismissal of the charges.
Officer Linz is entitled to statutory immunity.
(b) Merits of state law claims
To the extent that statutory immunity does not protect him, Officer Simon argues that
plaintiff fails to provide sufficient evidence to support the elements of her state law claims for
assault and battery, intentional infliction of emotional distress, and false arrest. The Court
addresses each claim in turn.
(i) Assault and battery against Officer Simon
20
Claims for assault and battery rise or fall with excessive force claims. Kepley v. Lantz,
2007 WL 2085401, at *11 (N.D.Ohio July 18, 2007). For the reasons stated previously, summary
judgment is denied as to this claim.
(ii) Intentional infliction of emotional distress
To succeed on an intentional infliction of emotional distress claim under Ohio law, a
plaintiff must prove that
(1) the defendant intended to cause emotional distress or knew or should have known that
its conduct would result in serious emotional distress to the plaintiff;
(2) defendant’s conduct was outrageous and extreme and beyond all possible bounds of
decency and was such that it can be considered as utterly intolerable in a civilized
community;
(3) defendant’s conduct was the proximate cause of plaintiff’s psychic injury; and
(4) plaintiff’s emotional distress was serious and of such a nature that no reasonable
person could be expected to endure it.
Ekunsumi v. Cincinnati Restoration, Inc., 120 Ohio App. 3d 557, 562 (1997). Conduct giving rise
to this claim must be “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. Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen, & Helpers of
Am., 6 Ohio St. 3d 369, 375 (1983) (overruled on other grounds )). “Serious” emotional distress
must be “severe and debilitating.” Paugh v. Hanks, 6 Ohio St. 3d 72, 78 (1983)
Plaintiff shows that she was diagnosed with post-traumatic stress disorder by a
psychologist at the Cleveland Clinic (Plaintiff Declaration, Exhibit 2), but she fails to show that
Officer Simon intended to cause her emotional injury or that his “conduct was outrageous and
extreme and beyond all possible bounds of decency.”
21
Summary judgment is granted on this claim.
(iii) False arrest
Count Three alleges false arrest. “[T]o succeed on a claim of false arrest or imprisonment,
a plaintiff must establish that she “was intentionally confined within a limited area, for any
appreciable time, against [her] will and without lawful justification.” Strickland v. Tower City
Mgmt. Corp., 1997 WL 793133, at *4 (Ohio App.Ct. Dec. 24, 1997). As already described,
Officer Simon had probable cause to arrest plaintiff. Thus, this claim fails as well.
Conclusion
For the foregoing reasons, the Wooster defendants’ motion is granted as to all claims
except the § 1983 excessive force claim in connection with the arrest and state law claim of
assault and battery against Officer Simon. The Broken Rocks defendants’ motion is granted.
IT IS SO ORDERED.
Date:
/s/Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
11/09/15
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