Jackson v. Cleveland et al
Opinion and Order. Defendant City of Cleveland's Motion for Summary Judgment (Related doc # 101 ) is granted. Judge Christopher A. Boyko on 8/4/2017. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
CITY OF CLEVELAND, et. al,
CASE NO. 1:15CV989
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J:
This matter comes before the Court upon the Motion of the City of Cleveland for
Summary Judgment (ECF DKT # 101) on Plaintiffs’ claims pursuant to Fed. R. Civ P. 56. For
the following reasons, Defendant’s Motion for Summary Judgment is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff Ricky Jackson filed his original Complaint on May 19, 2015, against Defendant
City of Cleveland and several individual former detectives, alleging constitutional violations by
the detectives caused by unconstitutional policies and inadequate training by the City. Plaintiff
filed his Second Amended Complaint on August 3, 2016, against Defendants City of Cleveland,
former Detective Jarold Englehart and Karen Lamendola, Guardian ad Litem on behalf of Frank
Stoiker. On January 27, 2017, Defendant City of Cleveland filed a Motion for Summary
Judgment on all claims against the City.
In 1975, Plaintiff was convicted of murdering Harold Frank. His conviction was based
on the eyewitness testimony of twelve-year old Eddie Vernon. However, nearly forty years
later, in 2014, Vernon recanted his testimony, claiming that he never witnessed the crime and
that he had been coerced into testifying. After being released, Plaintiff brought suit against the
Investigative Officers in the Frank murder investigation and the City of Cleveland. Many of the
detectives involved in the investigation were deceased by the time Plaintiff filed his claims and
the Court dismissed the claims against the deceased detectives’ estates. Plaintiff’s remaining
claims are against Karen Lamendola, Detective Jerold Englehart and the City of Cleveland.
The Cleveland Police Department in the 1970's had two forms of written rules: the
Manual of Rules of Conduct and Discipline for Officers, Members, and Employees of the
Division of Police (“Manual”), and General Police Orders (“GPOs”). Defendant cites several
rules in the Manual that Defendant alleges relate to the requirement to disclose exculpatory
evidence. Rule 66 requires police officers to familiarize themselves with the facts of a case, “so
that all of the evidence may be properly presented to the court.” Dkt. 65-1 at 4. Rule 77 requires
officers to report on all matters they investigate and Rule 78 requires that all written and verbal
reports be truthful and unbiased. Id. at 8-9. Plaintiff cites GPO No. 19-73, which contains Rule
16 of the Ohio Rules of Criminal Procedure. Dkt. 65-7. The GPO states that the police
department shall not give reports or evidence directly to defense counsel. Id. The Order also
clarifies that the rules of criminal procedure “will be employed through the courts and through
the prosecuting attorney.” Id. The GPO does not state the obligations of the police to disclose
information to the prosecuting attorney. The Cleveland Police Department’s rules and policies
have since been updated.
Several former detectives, along with Edward Tomba, the Deputy Chief of Homeland
Security and Special Operations for the Cleveland Police Department, testified about the rules
and training in place in the 1970's. All of them testified that Cleveland police officers in the 70's
received both academy and on-the-job training to be police officers. Several witnesses testified
that the academy trained officers to disclose exculpatory evidence, while others testified that the
academy provided no such training. Several witnesses testified that they received on-the-job
training to disclose exculpatory evidence to the prosecutor and no witness testified that on-thejob training did not include the duty to disclose, or that they were trained not to disclose such
Plaintiff provided several instances of alleged police misconduct in the years leading up
to their incarceration. Plaintiff cite a 1972 memo from then-Mayor Ralph Perk, in which Perk
said that police misconduct was rampant. Dkt 102-16 at 88. However, the misconduct involved
was failure to respond to citizen complaints and the indictment of officers for manslaughter,
armed robbery and rape. Plaintiff also cites two alleged incidents of Cleveland police coercing
witness statements through force or threat, one in 1974, and one in 1977, two years after
Plaintiffs’ incarceration. Former Detectives Ronald Turner and William Tell, Sr. also testified
that detectives often did not follow the policy of turning over all evidence to the prosecutors.
Plaintiff brought suit against the individual officers for violating their constitutional
rights by withholding exculpatory evidence, fabricating evidence, malicious prosecution and
unconstitutional lineup procedure. Plaintiff also brought suit against the City of Cleveland under
a theory of municipal liability under 42 U.S.C. §1983, alleging that Defendant’s unconstitutional
policies and failure to properly train officers resulted in the violation of Plaintiff’s rights.
Defendant moves for Summary Judgment on all claims, arguing that Plaintiff presented no facts
to show an underlying constitutional violation and arguing that the undisputed record shows that
the City had adequate policies and training during the 70's. Plaintiff argues that Defendant had
an explicitly unconstitutional policy, that Defendant should have had rules instructing police
officers to disclose exculpatory evidence and that Defendant failed to adequately train police
officers to disclose such evidence.
LAW AND ANALYSIS
Standard of Review for Summary Judgment
Summary judgment is proper if the movant can show that “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The Court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Ciminillo v. Striecher, 434 F.3d 461, 464 (6th Cir. 2006). A dispute is genuine if
it is based on facts on which a reasonable jury could find for the non-moving party. Tysinger v.
Police Dep’t of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006). The fact is material if the
resolution of the dispute might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). To meet its burden, the moving party can either present evidence
showing the lack of genuine dispute as to material facts, or it may show the absence of evidence
to support the nonmoving party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Once
the moving party has met its burden, the nonmoving party cannot rest on its pleadings; rather, the
nonmoving party must point to specific facts in the record that show that there is a genuine issue
for trial. Liberty Lobby, 477 U.S. at 248-49; Celotex Corp., 477 U.S. at 324.
No matter how sympathetic one may be to Plaintiff’s plight, the Court is still under an
obligation to apply the law to the evidence Plaintiff submits. Neither time nor death abrogates
Plaintiff’s obligation to support his claims.
Monell Claims Require an Underlying Constitutional Violation.
In order to bring a Monell claim against a municipality, there must be an underlying
constitutional violation by one of the municipality’s employees. Watkins v. City of Battle Creek,
273 F.3d 682 (6th Cir. 2001). Plaintiffs allege constitutional violations by Frank Stoiker and
Jarold Englehart. However, Plaintiffs also allege that, even if the claims against the individual
defendants are dismissed, Plaintiffs’ Monell claim can still proceed as long as they can show any
constitutional violation by an officer, even if that officer is not liable for that violation. In
Garner v. Memphis Police Department, 8 F.3d 358, the Sixth Circuit held that, even though the
claim against the only individual defendant had been dismissed due to qualified immunity, the
Monell claim against the city could continue. Defendant alleges that Plaintiffs have not alleged
enough facts for the Court to find there was an underlying constitutional violation.
The Court will not decide this question at this time. Regardless of whether any of the
detectives involved in the Franks homicide investigation committed any constitutional
violations, Plaintiffs’ Monell claims fail as a matter of law on an independent basis discussed
Plaintiff’s Monell Claims Fail as a Matter of Law.
A city or municipality may only be held liable for the constitutional violations of its own
employees under 42 U.S.C. § 1983 if those actions are the result of a practice, policy, or custom
of the municipality itself. Monell v. Department of Social Services, 436 U.S. 658 (1978). There
are four types of municipal action that, if they cause the underlying constitutional violation, can
establish liability under a Monell claim: 1) legislative enactments or official policy; 2) actions
by officials with final decision-making authority; 3) a policy of inadequate training or
supervision; or 4) a custom of tolerance of rights violations. France v. Lucas, No. 1:07CV3519,
2012 WL 5207555, at *12 (N.D. Ohio Oct. 22, 2012), aff'd, 836 F.3d 612 (6th Cir. 2016).
Plaintiff, in his opposition brief, did not argue that Defendant is liable under the second
or fourth theory of liability. Plaintiff also did not present argument defending his claims for
fabrication of evidence, malicious prosecution, or improper lineup procedure. As discussed
above, once the party moving for Summary Judgment meets its burden of production, the nonmoving part must present specific facts from the record that support its claim. Celotex Corp. v.
Catrett, 477 U.S. 324 (1986). Since Plaintiff failed to do so, he cannot rely on the pleadings to
survive Summary Judgment. It is not the Court’s role to “wade through” the record to find
specific facts which may support the nonmoving party’s claims. United States v. WRW Corp.,
986 F.2d 138, 143 (6th Cir. 1993). Thus, even though the record may contain evidence to
support other claims or theories, Plaintiff has waived that argument by not raising it in their
opposition brief. Furthermore, Plaintiff has not pointed to any facts that would show that the
other claims were the result of an unconstitutional policy or failure to train police officers.
Defendant Did Not Have an Unconstitutional Policy to Withhold Exculpatory
Plaintiff argues that Defendant is liable under the first method of Monell liability for two
reasons. First, that Defendant had an explicit unconstitutional policy that forbade police officers
from disclosing exculpatory evidence to defendants. Second, that Defendant lacked an adequate
policy on police officers’ obligations under Brady v. Maryland 373 U.S. 83 (1963) and that the
need for such a policy was so significant and so obvious that the lack of policy amounts to an
deliberate indifference. However, both of these arguments fail because Defendant did have
official policies in place specifically requiring police officers to report on everything they
The City Did Not Have an Explicit Unconstitutional Policy.
Under the first method of Monell liability, a municipality is liable for the constitutional
violations of its employees if they are executing a “policy statement, ordinance, regulation, or
decision” of the city. Monell v. Department of Social Services, 436 U.S. 658 (1978). The
occasional negligent administration of an otherwise sound policy is not enough; the policy itself
must either be unconstitutional, or it must have “mandated, encouraged, or authorized”
unconstitutional conduct. Heyerman v. Cnty. of Calhoun, 680 F3d 642, 648-49; France, 2012
WL 5207555, *10. In Brady, the Supreme Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process..., irrespective of the good
faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.
Plaintiff alleges that GPO 19-73 was an unconstitutional policy because it forbade police
officers from disclosing evidence to defense attorneys, which violates the requirements of Brady.
The GPO states that police officers shall not disclose records or evidence to defense counsel.
This order is consistent with Brady. Brady requires prosecutors to disclose exculpatory evidence
to defense counsel and requires that police officers disclose that evidence to prosecutors. Id.;
See also Kyles v. Whitley, 514 U.S. 419, 437–438. The General Police Order applies, as the
name suggests, to police officers, not prosecutors. The GPO states that the rules of criminal
procedure are enacted through the courts and the prosecuting attorney. Dkt. 65-7. Since the
GPO does not forbid disclosing information to the prosecutor, this policy is not unconstitutional.1
Plaintiff claims that Defendant admitted that GPO 19-73 was unconstitutional by
changing the rule. This argument is meritless. First, this use of evidence is clearly inadmissible
under Fed. R. Evid. 407, which prohibits evidence of subsequent remedial measures to prove
culpable conduct. Even though Defendant did not raise the evidentiary objection, the Court has
discretion to disregard inadmissible evidence in considering a motion for summary judgment.
Wiley v. U.S., 20 F.3d 222 at 226 (6th Cir. 1994); see also Capobianco v. City of N.Y., 422 F.3d
47, 55 (2d Cir. 2005); United States v. Dibble, 429 F.2d 598, 603 (9th Cir.1970). Second,
Plaintiff cites no evidence as to the reason the rules were changed. The mere fact that police
policies have changed in the forty-two years since 1975 is not evidence that the old policies were
unconstitutional. Third, to allow Plaintiff to make such an inference would be plainly against
public policy. If parties could use a change of rules or policies to prove that the old policies
were unconstitutional, municipalities would avoid updating their policies for fear of creating
liability under Monell claims. Since there is a strong public interest in having municipalities
improve out-of-date policies, Plaintiff’s argument fails.
The City Was Not Deliberately Indifferent in Not Adopting Better Policies.
Even if a municipality has not adopted an explicitly unconstitutional policy, the
municipality may be liable for the failure to make a policy where one is needed. Jones v. City of
Chicago, 787 F.2d 200, 204 (7th Cir. 1986). The Supreme Court held that a city’s deliberate
choice not to have a policy can be characterized as municipal policy. City of Canton v. Harris,
Even if GPO 19-73 did forbid the prosecution from disclosing exculpatory evidence, the
alleged constitutional violation in this case is the failure of police officers to disclose evidence to
the prosecution, which the GPO does not forbid.
489 U.S. 378 (1989). However, it is not enough that a policy be imperfect; liability for failure to
adopt a policy requires “deliberate indifference” to a “plainly obvious danger.” Armstrong v.
Squadrito, 152 F.3d 564, 578 (7th Cir. 1998). The municipality may be deliberately indifferent
if there is a pattern of violations that puts the municipality on notice, or if the inadequacy of the
policy in preventing constitutional violations is obvious. Miller v. Calhoun Cnty., 408 F.3d 803,
816-17 (6th Cir. 2005).
The Manual contains the rules regarding disclosure of evidence to prosecutors. Rule 77
states that “[o]fficers and members shall report on all matters referred to or investigated by
them.” Dkt 66-2 at 59. Rule 77 further requires all police officers to submit their reports to their
superior officers. Plaintiff contends that these reports were incomplete, but all parties agree that
the reports were required to be turned over to the prosecutors. Rule 78 requires that “[w]ritten
and verbal reports... shall be truthful and unbiased.” Id. at 60. The plain language of these
policies means that police officers must report truthfully and completely on everything they
investigate. Therefore, the City did have a policy in place that addressed the Brady obligations
of police officers, since turning over everything to prosecutors would naturally include
exculpatory and impeachment evidence.
Plaintiff argues that, even if Rules 77 and 78 cover disclosing evidence to prosecutors,
the rules are inadequate to prevent constitutional violations because they are too vague and do
not instruct police officers as to what evidence might be exculpatory. In order for Plaintiffs’
argument to prevail, the policy would have to be so inadequate as to constitute deliberate
indifference by the City. Miller, 408 F.3d at 817. This requires that either the City knew that its
policy was inadequate, or that the policy was so inadequate that the danger of violation was
plainly obvious. Armstrong, 152 F.3d at 578.
Plaintiff argues that Defendant knew that the policy was inadequate. Plaintiff points to
several reports detailing concerns with the Cleveland Police Department from the early 1970's.
However, these reports concern police officers engaging in criminal activity and failing to
respond to calls for assistance. These reports do not show that the City was on notice that their
policy regarding disclosing exculpatory evidence was inadequate. Plaintiff also argues that
Defendant admits that the Rules were inadequate because the Rules have since been replaced.
As discussed above, this argument is based on subsequent remedial measures and has no merit.
Therefore, Plaintiff has not alleged facts showing that Defendant had notice of the need for new
Plaintiff also argues that the Rules were so vague and the risk of constitutional violations
so great that Defendant was deliberately indifferent to the need for better policies. Plaintiff relies
heavily on his expert witness, Donald Anders, who testified that Rule 77 could be interpreted to
mean that police officers were merely required to report that they investigated a matter, without
reporting on the details of what the officer learned. Dkt. 105 at 74-79. However, the
requirement to report on “all matters” is not ambiguous. The plain language clearly requires
police officers to turn over everything to prosecutors. Furthermore, as a police expert rather than
a legal expert, Anders is not qualified to testify as to how other police officers may have
interpreted the rule or as to the legal adequacy of the rule. Liability for an insufficient policy
requires deliberate indifference, and where there is a written policy requiring police officers to
report on all their investigations, the attempts of an expert to obfuscate the rule to show how it
might be inadequate will not suffice to show deliberate indifference.
Plaintiff Cannot Show That the City’s Training of Officers was Inadequate.
Plaintiff asserts that Defendant is liable under Monell for failing to properly train the
police officers involved in the 1975 homicide investigation. However, Plaintiff has not alleged
sufficient facts to show that the on-the-job training of officers was inadequate.
A municipality may be liable under §1983 for failure to train its employees, but only
where such failure reflects a deliberate or conscious choice. City of Canton v. Harris, 489 U.S.
378 (1989). To prevail on a claim for failure to train, a plaintiff must show: 1) the training was
inadequate for the tasks officers must perform; 2) the inadequacy was the result of the city’s
deliberate indifference; and 3) the inadequacy was closely related to or caused the injury.
Ciminillo v. Streicher, 434 F.3d 461, 469 (6th Cir. 2006). There are two ways a plaintiff can
show that the inadequate training was the result of deliberate indifference. First, the plaintiff can
show “prior instances of unconstitutional conduct demonstrating that the County has ignored a
history of abuse and was clearly on notice that the training in this particular area was deficient
and likely to cause injury.” Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005). Second, a
plaintiff can demonstrate deliberate indifference even where there are no prior instances of
constitutional violations “by showing that officer training failed to address the handling of
exculpatory materials and that such a failure has the ‘highly predictable consequence’ of
constitutional violations of the sort Plaintiff suffered.” Gregory v. City of Louisville, 444 F.3d
725, 753 (6th Cir. 2006)(citation omitted).
Plaintiff has failed to provide evidence showing that the training given to the officers was
inadequate. While Plaintiff provided enough evidence to dispute whether the police academy
covered handling exculpatory evidence, this dispute is not material. Defendant cites multiple
witnesses who stated that police officers received on-the-job training to disclose all evidence,
including exculpatory evidence to the prosecutor and Plaintiff has presented no evidence to
suggest that on-the-job training did not include handling exculpatory evidence. This training is
not insufficient merely because it is on-the-job training rather than formal academy training,
because “failure-to-train liability is concerned with the substance of the training, not the
particular instructional format.” Connick v. Thompson, 563 U.S. 51, 68 (2011). Plaintiff again
relies on Anders’ testimony, who stated that he believes that on-the-job training is always
ineffective and therefore, the Court should infer that the officers’ training in this case was
inadequate. However, Anders’ opinion about on-the-job training in general cannot create a
genuine issue of fact where the undisputed facts on the record shows that officers received onthe-job training to disclose exculpatory evidence. Therefore, since Plaintiff has not provided
enough evidence to create a genuine issue of material fact as to whether police officers received
on-the-job training to disclose exculpatory evidence, he cannot meet their burden of showing that
the training was inadequate for the tasks police officers had to perform.
Plaintiff does point to evidence in the record in the form of testimony by former
Detective Turner and Tell, that there was a widespread custom of police committing
constitutional violations. This evidence does suggest that there were problems with the
Cleveland Police Department in the 1970's. However, this concern falls short of supporting
Plaintiff’s claims. Evidence that officers committed violations is not evidence that those officers
were not trained, especially in the face of undisputed direct evidence that officers received onthe-job training to disclose all evidence. “Indeed, a law enforcement officer's choice to lie,
fabricate evidence, or conceal exculpatory evidence would appear to be one that is made despite
any training.” France v. Lucas, No. 1:07CV3519, 2012 WL 5207555, at *12 (N.D. Ohio Oct.
22, 2012), aff'd, 836 F.3d 612 (6th Cir. 2016).
Plaintiff Cannot Show a Widespread Custom of Constitutional Violations.
While Plaintiff does not explicitly argue that Defendant is liable due to a widespread
custom of constitutional violations, Plaintiff does cite some evidence from the record that
suggests the possibility of such a custom. However, this evidence falls short of supporting
Plaintiff’s Monell claims.
In order to establish liability for a custom of tolerating constitutional violations, Plaintiff
must prove four things: 1) a persistent pattern of illegal activity; 2) notice or constructive notice
on the part of Defendant; 3) Defendant’s tacit approval of the unconstitutional conduct; and 4)
that Defendant’s custom caused the underlying constitutional violation. France, 2012 WL
5207555, at *12 (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).
Plaintiff cannot establish these elements for three reasons. First, Plaintiff relies on the
testimony of former Detectives Ronald Turner and William Tell. While both worked for the City
of Cleveland Police Department during the 1970's, neither were ever a homicide detective.
Turner worked in the Vice Unit and Tell worked in the Auto Theft Unit. These officers cannot
speak to the policies, practices and customs of the Homicide Unit.
Second, Plaintiff relies on Anders’ expert testimony that there was a custom of
constitutional violations. However, expert testimony must be based on sufficient facts to support
the conclusion. Since Turner and Tell lack personal knowledge of the Homicide Unit’s policies,
Anders’ speculation cannot create a genuine issue of material fact.
Third, even if Plaintiff could show a widespread custom of violations, they presented no
evidence that Defendant had notice of this custom. Plaintiff points to no evidence that the
Mayor or the Chief of Police were ever informed of any failures of officers to disclose
exculpatory evidence to prosecutors. Defendant had no notice or reason to be on notice that
homicide detectives failed to disclose exculpatory evidence to prosecutors.
Because Plaintiff cannot establish the existence of a widespread custom of constitutional
violations in the Homicide Unit and that Defendant had notice of such a custom, Plaintiff cannot
meet his burden to prove Monell liability for a custom of constitutional violations.
Because Plaintiff has not shown that Defendant had an unconstitutional policy and was
deliberately indifferent to the need for better policies or inadequately trained its police officers,
Defendant’s Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: August 4, 2017
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