Tinney v. Richland County et al

Filing 29

Memorandum Opinion and Order: Plaintiff's motion to substitute is GRANTED consistent with this opinion. James M. Mayer, III is substituted as defendant for the state law claims of emotional distress and civil conspiracy brought against James M. Mayer, Jr. in his individual capacity. The individual capacity § 1983 claims do not survive defendant James M. Mayer, Jr.'s death and are dismissed. The official capacity claims will proceed against Richland County only. Judge Patricia A. Gaughan on 12/8/14. (LC,S) re 25

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Glenn Tinney,
Plaintiff,
vs.
Richland County, et al.,
Defendants.

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CASE NO. 1:14 CV 703
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

Introduction
This matter is before the Court upon plaintiff’s Motion for Substitution of Parties
(Doc. 25). This is a civil rights case. For the reasons set forth below, plaintiff’s motion is
GRANTED consistent with this opinion.
Facts
Plaintiff, Glenn Tinney, brings this action against James M. Mayer, Jr., the prosecutor
of Richland County (“defendant”), Joesph Masi, who was a prosecutor’s investigator, David
Mesaros, who was an assistant prosecutor, Richland County, and several unnamed
defendants.
In 1992, plaintiff pled guilty to the 1988 murder and aggravated robbery of Ted White.
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He was thereafter convicted and sentenced to fifteen years to life for the murder and ten to
twenty-five years for the aggravated robbery.
In 2012, plaintiff was allowed to withdraw his guilty plea when Judge DeWesse found
that plaintiff had “confessed to killing a man he could not identify, for conflicting motives
which don’t match the facts, at the wrong time of day, with a weapon that does not match the
victim’s injuries, by striking him in the wrong part of the head, and stealing items the victim
either still possessed after the attack or probably never possessed.” (Comp. ¶ 58).
Plaintiff thereafter brought suit, alleging eight claims against defendant in his official
and individual capacity. Counts I through VI are § 1983 claims, Count VII is a claim for
infliction of emotional distress and Count VIII is a claim for civil conspiracy under Ohio law.
While the action was pending, defendant died. Plaintiff thereafter made the instant
motion under Federal Rule of Civil Procedure 25(a) to substitute James M. Mayer, III, who
has been named the executor of defendant’s estate, for the claims made against defendant in
his individual capacity.1 Defendant opposes the motion.
Discussion
Federal Rule of Civil Procedure 25(a) permits the court to substitute the proper party
in the event a party dies, the claim is not extinguished by the death, and the motion is made

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Defendant does not dispute that the official capacity claims against defendant
automatically survive death and proceed against his successor, Bambi CouchPage. However, defendant notes that an official capacity suit is construed as an
action against Richland County. Because plaintiff has also named Richland
County as a defendant, the claims are duplicative. The Court agrees and the
official capacity claims are dismissed. See Minor v. Foster, 2013 WL 4521101
(M.D. Tenn. August 27, 2013) (citations omitted).
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within 90 days.
There is no dispute about the timeliness of the motion. The issue is whether claims
brought against defendant in his individual capacity survive death.
A. 1983 Claims
The survival of a § 1983 claim is determined by looking at state law, so long as it is
not inconsistent with federal law or the Constitution. Robertson v. Wegmann, 436 U.S. 584,
588-90, 98 S.Ct. 1991, 1994-95, 56 L.Ed.2d 554 (1978); Haggard v. Stevens, 683 F.3d 714,
717-18 (6th Cir. 2012). Ohio Revised Code § 2305.21 governs the survival of actions under
Ohio law and provides:
In addition to the causes of action which survive at common law, causes of action for
mesne profits, or injuries to the person or property, or for deceit or fraud, also shall
survive, and such actions may be brought notwithstanding the death of the person
entitled or liable thereto.
Under O.R.C. § 2305.21, “injuries to the person” means “physical injuries.” Witcher v.
Fairlawn (1996), 113 Ohio App.3d 214, 217, 680 N.E.2d 713; Oakwood v. Makar (1983), 11
Ohio App.3d 46, 47, 463 N.E.2d 61.
After review, the Court finds that plaintiff’s § 1983 claims do not survive defendant’s
death. Plaintiff argues that Ohio’s survival statute is to be liberally construed and that his
decades long wrongful incarceration alleges a significant physical injury sufficient to sustain
his claim. The Court disagrees and is not persuaded by plaintiff’s case citations. In Jaco v.
Bloechle, 739 F.3d 239 (6th Cir. 1984), Tinch v. City of Dayton, Nos. 94-3436, 94-3516, 77
F.3d 483 (6th Cir. 1996) (unpublished), and Garrett v. Belmont Cnty. Sheriff Dep't, No., 2011
WL 765975, at *5 (S.D. Ohio Feb. 25, 2011), the estates were seeking recovery for death
which resulted from the constitutional violations, which is not the case here.
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Rather, the Court finds instructive Murray v. State, 2002 Ohio 664, 2002 WL 337732
(Ohio Ct. App. 2002). Although plaintiff contends that the case is wholly distinguishable, the
Court disagrees. There, Sheppard had been incarcerated for a decade before his conviction
for murdering his wife was reversed and he was granted a new trial. Id. at *1. Upon retrial,
Sheppard was found not guilty. After Sheppard died, the administrator of his estate brought
suit seeking to determine that Sheppard was actually innocent and had been wrongfully
imprisoned. The court found that the claim did not survive Sheppard’s death because “[t]he
injury caused by being wrongfully imprisoned is a violation of one’s personal rights, not a
physical injury.” Id. at *3. See also Witcher v. City of Fairlawn, 113 Ohio App.3d 214 (1996)
(finding that a claim for false imprisonment abated at claimant’s death because it was not a
physical injury but rather a deprivation of personal liberty).
As in Murray, plaintiff is alleging the injury of wrongful incarceration which is a
violation of plaintiff’s “personal rights, not a physical injury.” Murray, at *3. Plaintiff’s §
1983 claims allege that defendant coerced plaintiff, who was suffering from a mental illness,
into making false and involuntary confessions by bribing him with money, coffee, and
cigarettes (Count I), he withheld evidence and deprived plaintiff of a fair trial (Count II), he
deprived plaintiff of his right to remain silent and to counsel (Count III), he failed to intervene
to prevent violation of plaintiff’s constitutional rights (Count IV), he conspired to deprive
plaintiff of his constitutional rights (Count V), and he is liable for supervising the other
defendants who violated plaintiff’s constitutional rights (Count VI). These claims involve
violations of plaintiff’s personal rights—his right to a fair trial, his right to counsel, his right
against self-incrimination. Because the claims do not allege physical injuries, the individual

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capacity § 1983 claims do not survive defendant’s death under Ohio law.
B. State Law Claims
Plaintiff argues that the claim for infliction of emotional distress survives defendant’s
death. Once again, under O.R.C. § 2305.21, a cause of action for “injuries to the person” or a
physical injury does not abate upon defendant’s death. The question before the Court is
whether plaintiff’s claim for emotional distress constitutes a claim for a physical injury. After
review, the Court finds that it does.
In Bowman v. Parma Bd. of Ed. 44 Ohio App.3d 169 (Ohio Ct. App. 1988), the
administratrix of an estate filed suit for wrongful death and emotional distress after the breach
of a non-disclosure agreement caused a teacher to commit suicide. The court found that the
alleged psychic injury was so severe that it could constitute physical harm under the survival
statute. Id. at 177-78 (“If a particularly diabolical infliction of emotional distress drives a
person to suicide, claims for infliction of that emotional distress would survive the victim’s
demise.”). Other courts interpreting Bowman have concluded that “Ohio law provides that a
cause of action survives where psychic injury is alleged.” Huggard v. United Performance
Metals, Inc., 2012 WL 368222 (S.D. Ohio Feb. 3, 2012). See also Carney v. Stericycle, Inc.,
No. 04:06CV1473, 2007 WL 2236605, at *3 (N.D. Ohio July 31, 2007) (following Bowman
and noting that “Plaintiff alleges severe emotional distress as an element of damages for the
listed cause of action” in concluding that the plaintiff alleged personal injuries); Kelly v.
Greene, No. 66359, 1994 WL 547767, at *2 (Ohio Ct. App. Oct. 6, 1994) (following Bowman
and finding that sexual harassment was a psychic injury that did not abate at the death of a
counterclaim defendant).

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Defendant argues that plaintiff must “allege at least some specific facts to show that
his or her emotional distress is particularly severe.” (Doc. 27 p. 7). The Court disagrees. In
order to state a claim for intentional infliction of emotional distress in Ohio, a plaintiff must
allege that (1) defendants intended to cause emotional distress, or knew or should have known
that their actions would result in plaintiff's serious emotional distress, (2) defendants’ conduct
was extreme and outrageous, (3) defendants’ actions proximately caused plaintiff’s emotional
injury, and (4) plaintiff suffered serious emotional anguish. Hanly v. Riverside Methodist
Hosps., 78 Ohio App.3d 73, 603 N.E.2d 1126, 1132 (1991) (citing Pyle v. Pyle, 11 Ohio
App.3d 31, 463 N.E.2d 98, 103 (1983)). Plaintiff has alleged that he suffered “severe,
debilitating emotional distress” because of defendant’s actions. (Comp. ¶ 116). Having
alleged a psychic injury which is considered a physical injury under Ohio law, plaintiff’s
claim does not abate under Ohio law. The substitution of James M. Mayer, III for defendant
on this claim is proper.
Finally, plaintiff argues that his claim for civil conspiracy survives where the predicate
claim of an unlawful act survives. The Court agrees. Plaintiff brought his civil conspiracy
claim seeking redress for a conspiracy to inflict emotional distress as well as malicious
prosecution. As the Court has found that plaintiff’s emotional distress claim did not abate
upon defendant’s death, the underlying civil conspiracy claim may proceed with James M.
Mayer, III substituted as the defendant.
Conclusion
For the reasons set forth above, plaintiff’s motion to substitute is GRANTED
consistent with this opinion. James M. Mayer, III is substituted as defendant for the state law

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claims of emotional distress and civil conspiracy brought against James M. Mayer, Jr. in his
individual capacity. The individual capacity § 1983 claims do not survive defendant James
M. Mayer, Jr.’s death and are dismissed. The official capacity claims will proceed against
Richland County only.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 12/8/14

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