Bickerstaff v. Lucarelli et al

Filing 100

Memorandum Opinion and Order granting 98 Motion for summary judgment filed by Vincent Lucarelli. Judge Christopher A. Boyko on 10/23/2015. (R,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRENDA BICKERSTAFF,

Plaintiffs,
Vs.
VINCENT LUCARELLI, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

CASE NO.1:14CV831

JUDGE CHRISTOPHER A. BOYKO

ORDER

CHRISTOPHER A. BOYKO, J:

This matter is before the Court on Defendant’s Motion for Summary Judgment of
Defendant Lucarelli (ECF #98). Summary judgment is appropriate under Rule 56 when
the pleadings and evidence demonstrate that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Plaintiff has not filed an objection. For the following reasons, the Court grants the
Motion for Summary Judgment.

1

BACKGROUND
Plaintiff Brenda Bickerstaff is a private investigator for criminal defense law firms
in Northeast Ohio. In March 2012, Plaintiff was conducting an investigation on behalf of
a defendant accused of breaking into the house of Jasmine Harris (“Harris”). Plaintiff
spoke to Harris, and Harris agreed to be interviewed. Shortly after speaking with
Plaintiff, Harris contacted Defendant Vincent Lucarelli, (“Lucarelli”) a detective with the
Cleveland Division of Police, to complain about Plaintiff. Lucarelli contacted Plaintiff and
advised her to discontinue her contact with Harris.
Harris filed a complaint against Plaintiff and Lucarelli presented the incident to
the prosecutor, who elected to present it to the grand jury. A grand jury indicted
Plaintiff for intimidation of a crime victim or witness and telecommunications
harassment. The criminal proceedings against Plaintiff were dismissed without prejudice
on May 24, 2012.
This suit was filed and re-filed, ultimately making multiple claims against various
Defendants. All Counts against Defendants Legg, Hill, McDuffie and the City
of Cleveland were dismissed on Motions to Dismiss on March 27, 2015. Count
Three (Retaliation) and Count Six (Reckless, Willful, and Wanton Conduct against
Defendant Lucarelli were dismissed on April 2, 2015, on a Motion for Partial Dismissal.
The only remaining claims against Defendant Lucarelli are Malicious Prosecution (Count
One), Abuse of Process (Count Two) and Conspiracy (Count Seven).
ANALYSIS
In Celotex Corp. v. Catrett, the United States Supreme Court held that Rule 56(c)

2

of the Federal Rules of Civil Procedure requires that summary judgment be granted
when the non-moving party fails to establish the existence of an essential element to his
or her case on which he or she will bear the burden of proof at trial. 106 S.Ct. 2548
(1986). The Court stated:
In our view, the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case on which that party
will bear the burden of proof at trial. In such a situation there can be “no
genuine issue as to any material fact,” since a complete failure of proof
concerning an essential element of the non-moving party’s case
necessarily renders all other facts immaterial. The moving party is
entitled to judgment as a matter of law because the non-moving party has
failed to make a sufficient showing on an essential element of her case
with respect to which she has the burden of proof.
Id. at 2552-53. The moving party must demonstrate that “that there is an absence of
evidence to support the nonmoving party’s case.” E.E.O.C. v. Prevo’s Family Market,
Inc., 135 F. 3d 1089, 1093 (6th Cir. 1998)(citing Celotex, 477 U.S. at 325). If a motion
is properly made and supported, the nonmoving party must set forth specific facts
showing that there is a genuine issue of fact for trial. Fed. R. Civ. P. 56(e).
In this case Plaintiff’s claim for malicious prosecution fails as a state or federal
claim. Plaintiff was indicted by the grand jury. There has been no evidence that any
irregularities occurred with the grand jury as no transcript has been ordered. Defendant
Lucarelli did not testify before the grand jury.
To establish a basic claim for malicious prosecution under Ohio law, a
plaintiff must prove "(1) malice in instituting or continuing the prosecution; (2) lack of
probable cause; and (3) termination of the prosecution in favor of the accused." Dailey
v. First Bank of Ohio, Franklin App. No. 04AP-1309, 2005-Ohio-3152, ¶14 (citations
3

omitted). Regarding a federal claim for malicious prosecution, “the finding of an
indictment, fair upon its face, by a properly constituted grand jury, conclusively
determines the existence of probable cause.” Barnes v. Wright, 449 F.3d 709, 716 (6th
Cir.2006) (citing Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir.2002)). See also
Bickley v. FMC Technologies, Inc., 282 F. Supp. 2d 631, 639 (N.D. Ohio 2003) (“The
return of an indictment by the grand jury establishes probable cause.”)
Plaintiff alleges that Defendant prosecuted her for an improper intent but has
provided no facts to support that theory. Defendant did not present the case to the
grand jury but instead presented the facts to the prosecutor at his supervisor’s direction,
and the prosecutor determined that the case would be presented to the grand jury. This
does not establish any improper intent or the lack of probable cause.
Additionally, Defendant is entitled to qualified immunity for this claim. The
doctrine of qualified immunity provides that law enforcement officials “performing
discretionary functions generally are shielded 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Once a law enforcement official has raised the defense, the plaintiff has the
burden of establishing that the official is not entitled to qualified immunity. Silberstein v.
City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006).
Here, there is no evidence of a constitutional violation and Plaintiff has not
attempted to establish that Defendant is not entitled to qualified immunity. Plaintiff
offers nothing more than conclusory allegations and has not established an exception to
immunity based on malicious, wanton or reckless conduct. Therefore, the malicious
4

prosecution claim is dismissed.
Plaintiff alleges an abuse of process claim. As the Court previously stated in
its Opinion and Order granting Defendants Cheryl McDuffie, City of Cleveland, Dennis
Hill and Michael Legg’s Motions to Dismiss, (ECF#85, p.7) “To establish an abuse of
process claim under Ohio law, a plaintiff must show: (1) that a legal proceeding has
been set in motion in proper form and with probable cause; (2) that the proceeding has
been perverted to attempt to accomplish an ulterior purpose for which it was not
designed; and (3) that direct damage has resulted from the wrongful process. Bickley,
[v. FMC Technologies, Inc., 282 F. Supp. 2d 631, 639 (N.D. Ohio 2003)] (citing
Yaklevich v. Kemp, Schaeffer & Rowe, 68 Ohio St.3d 294, 298, 626 N.E.2d 115 (1994)).
A defendant is not liable for abuse of process ‘where the defendant has done nothing
more than carry out the process to its authorized conclusion, even though with bad
intentions.’ Id. at 640.”
Defendant Lucarelli followed the legal process as directed by his supervisor. The
prosecutor elected to present the case to the grand jury. Therefore, Plaintiff has not
established an abuse of process and this claim is dismissed. Also, Defendant is entitled
to all the same defenses and immunities as the malicious prosecution claim.
Plaintiff has alleged a conspiracy between Defendant Lucarelli and other police
officers. To establish such a claim under Ohio law, a plaintiff must demonstrate “‘a
malicious combination of two or more persons to injure another in person or property, in
a way not competent for one alone, resulting in actual damages.’” AAA Installers v.
Sears, 764 F. Supp. 2d 931, 941 (S.D. Ohio 2011) (quoting Kenty v. Transamerica
Premium Ins. Co., 72 Ohio St.3d 415, 419, 650 N.E.2d 863 (1995)). Basically, the
5

plaintiff must show “that there was a single plan, that the alleged co-conspirator shared
in the general conspiratorial objective, and that an overt act was committed in
furtherance of the conspiracy that caused injury to the complainant.” Heyne v. Metro.
Nashville Pub. Sch., 655 F.3d 556, 563 (6th Cir.2011) (quoting Spadafore v. Gardner,
330 F.3d 849 (6th Cir.2003)).
“There is no requirement of an express agreement between defendants” for a
malicious combination to exist. Garrett v. Fisher Titus Hosp., 318 F. Supp. 2d 562, 578
(N.D. Ohio 2004) (citing Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481, 496
(1996)). Instead, a plaintiff must prove “a common understanding or design, even if
tacit, to commit an unlawful act.” Id. "An underlying unlawful act is required before a
civil conspiracy claim can succeed." Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475,
700 N.E.2d 859, 868 (1998).
Here, Plaintiff fails to provide evidence of an unlawful action. Although Plaintiff
asserts that someone must have conspired against her, she provides no facts or
evidence to support this claim. The claims of malicious prosecution and abuse of
process are without merit, thus the conspiracy claim fails as well. As noted above,
Defendant Lucarelli is entitled to all the same defenses and immunities as the malicious
prosecution claim. Therefore, for the foregoing reasons Defendant Lucarelli’s Motion for
Summary Judgment is granted.

IT IS SO ORDERED.

6

Date: 10/23/2015

s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

7