Capasso et al v. City of Westlake, Ohio et al

Filing 37

Opinion and Order. Defendants City of Westlake, Kevin Bielozer, Mark Arcuri, Nathan Fox and William Eschenfelder's Motion for Summary Judgment (Related doc # 25 ) is granted. Defendants City of Avon, Richard A. Bosley, Andy Kehl, Pat Neuhoff and Robert Olds' Motion for Summary Judgment (Related doc # [24) is granted. Because Plaintiffs have failed to establish a federal claim for which relief can be granted, their remaining state law claims against Defendants are dismissed without prejudice. Judge Christopher A. Boyko on 2/13/2018. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM WINTER,

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CASE NO. 1:16CV957
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Plaintiff,
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JUDGE CHRISTOPHER A. BOYKO
)
vs.
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OPINION AND ORDER
)
CITY OF WESTLAKE, OHIO, et al.,
)
)
Defendants.
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____________________________________)______________________________________
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BETHANY CAPASSO, et al.,
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CASE NO. 1:16CV1753
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Plaintiffs,
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JUDGE CHRISTOPHER A. BOYKO
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vs.
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OPINION AND ORDER
)
CITY OF WESTLAKE, OHIO, et al.,
)
)
Defendants.
)
____________________________________)______________________________________
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EDMUND LEECE,
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CASE NO. 1:16CV2588
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Plaintiff,
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JUDGE CHRISTOPHER A. BOYKO
)
vs.
)
OPINION AND ORDER
)
CITY OF WESTLAKE, OHIO, et al.,
)
)
Defendants.
)

CHRISTOPHER A. BOYKO, J.:
The Court’s consolidated Opinion and Order first addresses the Motions (ECF DKT
#26 in Case No. 1:16CV957; ECF DKT #25 in Case No. 1:16CV1753; and ECF DKT #18 in
Case No. 1:16CV2588) of Defendants City of Westlake, Kevin Bielozer, Mark Arcuri,

Nathan Fox and William Eschenfelder, for Summary Judgment on Qualified Immunity. For
the following reasons, the Motions are granted.
PART ONE
I. FACTUAL BACKGROUND
On October 23, 2014, at approximately 8:51 p.m., City of Avon Police Officer Patrick
Neuhoff radioed that a white pick-up truck had been stolen from a golf course in Avon Lake.
The truck, driven by Brandon Pawlak, refused to stop. Defendant Officers Andy Kehl and
Neuhoff pursued the vehicle. The vehicle traveled south on Jaycox Road and ran a red light.
The truck continued south until it reached Detroit Road, where it pulled into a parking lot.
Neuhoff attempted to follow the truck into the parking lot. The truck then drove over a
flower bed and back onto Detroit Road. Kehl then became the lead officer in the pursuit. At
8:52, Neuhoff requested that the Avon dispatcher radio ahead to the Westlake Police
Department to inform them of the fleeing vehicle. The dispatcher announced to Westlake
Police the direction and speed of the truck.
At the time the dispatch was issued, Defendants, Westlake Police Officers Mark
Arcuri and Nathan Fox, were writing reports at the Westlake Police Department. Initially,
Arcuri and Fox anticipated that the suspect would enter I-90 at Crocker Road based upon
incorrect information on the whereabouts of the vehicle. However, by the time they left in
their cruisers, they learned that the pursuit was entering Westlake on Detroit Road. Arcuri
and Fox were not directed by supervising or coordinating officers in relation to the pursuit,
nor did they coordinate with other officers or with each other. They had no information that
the driver was armed and dangerous or that the driver had committed any violent acts before

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or during the pursuit.
Arcuri and Fox stopped on a stretch of Detroit Road where the road is three lanes
across with the middle lane being a shared turn lane. On the night in question, the eastbound
lane was under construction and the middle lane was being used for eastbound traffic. That
lane was cordoned off with large orange traffic barrels. Detroit Road curves slightly to the
north just before this location. The speed limit in this area is 35 miles per hour. The area is
mostly commercial with parking lots and a sidewalk on either side. On one side is an
apartment complex separated from the street by a few yards. On the other side is the Dover
Gardens Tavern directly adjacent to the sidewalk.
Upon reaching the area, approximately two minutes and forty-five seconds after the
initial call from dispatch, Arcuri parked in the middle lane with only his headlights on but not
his overhead lights. He deployed his StopStick, Ltd. tire deflation devices in the eastbound
lane in the path of the speeding pick-up truck. Farther down the road to the east, Fox also
parked his cruiser, with its overhead flashing lights operating and partially blocking the
eastbound lane.
The pick-up truck came around the slight bend in the road at approximately 74 to 77
miles per hour. The driver swerved to avoid Arcuri’s cruiser, struck the stop sticks (though
the truck’s tires did not deflate) and the south curb of Detroit Road, and began to fishtail at
high speed. Having lost control, the vehicle crashed into the front of the Dover Gardens
Tavern structure, injuring Plaintiffs William Winter, Bethany Capasso, Jon Masterson, Daniel
Bush, Kelly Deutschendorf, John Comer and Edmund Leece, who were patrons and
employees of the bar.

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In their Complaints, Plaintiffs claim they suffered severe, permanent injuries when
Defendants engaged in a police pursuit and attempted to terminate that pursuit by setting up
roadblocks and deploying stop sticks in a manner substantially certain to cause the fleeing
vehicle to crash through an occupied restaurant at a high rate of speed. Plaintiffs’ First Claim
for Relief against Defendants Arcuri and Fox sets out a claim under 42 U.S.C. § 1983 for
violations of Plaintiffs’ substantive Fourteenth Amendment due process rights. The Second
Claim for Relief sets forth a § 1983 claim for supervisory liability against Defendants
Eschenfelder and Bielozer. In the Third Claim for Relief, Plaintiffs allege that the City of
Westlake and Chief Bielozer, in his official capacity, are liable under § 1983 for failure to
train. The Fourth Claim for Relief sets out a § 1983 claim against the City of Westlake and
Chief Bielozer, in his official capacity, for ratification of unconstitutional conduct. Plaintiffs
have asserted an Ohio state law claim for Recklessness in their Fifth Claim for Relief.
In their Motions for Summary Judgment, the Westlake Defendants assert the defense
of qualified immunity and seek dismissal of Plaintiffs’ § 1983 claims. Plaintiffs filed their
Memorandum in Opposition but presented no arguments with respect to the Motions on
behalf of Defendants Eschenfelder, Bielozer or the City.
II. LAW AND ANALYSIS
Standard of Review
Summary judgment shall be granted only if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” See Fed.R.Civ.P. 56(a). The burden is on the moving party to conclusively show no
genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);

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Lansing Dairy. Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The moving party must
either point to “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A court
considering a motion for summary judgment must view the facts and all inferences in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the
nonmoving party may not rest on its pleadings, but must come forward with some significant
probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at
1347.
This Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass 'n., 78 F.3d 1079, 1087 (6th Cir.
1996); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992). The
burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving party
fails to make the necessary showing on an element upon which it has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether summary
judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Amway Distributors Benefits Ass 'n v. Northfield Ins. Co., 323

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F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
42 U.S.C. § 1983 and Qualified Immunity
For any action brought under 42 U.S.C. § 1983 the two essential inquiries are: “(1)
whether the conduct complained of was committed by a person acting under color of state
law; and (2) whether this conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States.” See 42 U.S.C. § 1983; Parratt v.
Taylor, 451 U.S. 527, 535 (1981) overruled on other grounds by Daniels v. Williams, 474
U.S. 327, 330–31 (1986). These inquiries may be addressed in any order and a court may
address whether a constitutional violation occurred before it looks at whether a right is clearly
established. Plumhoff v. Rickard, 134 S.Ct. 2012, 2020 (2014) citing Pearson v. Callahan,
555 U.S. 223, 233 (2009).
Officials who perform discretionary functions, such as police officers acting in the line
of duty, are generally entitled to qualified immunity from individual liability for civil
damages unless they violate clearly established rights. Harlow v. Fitzgerald, 457 U.S. 800,
812 (1982). The Sixth Circuit, in determining whether an official is entitled to qualified
immunity, applies a three-part test: 1) whether the plaintiff’s constitutional right was
violated; 2) whether that right was clearly established at the time such that a reasonable
official would have understood that he was violating that right; and 3) whether the official’s
action was objectively unreasonable in light of the clearly established rights. Sample v.
Bailey, 409 F.3d 689, 696-97 (6th Cir. 2005). A court does not have to consider these prongs
sequentially. Jones v. Byrnes, 585 F.3d 971, 975 (6th Cir. 2009). Should any one portion of
the test go unfulfilled, then qualified immunity is appropriate as a defense. “When properly

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applied, [qualified immunity] protects all but the plainly incompetent or those who knowingly
violate the law.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2085 (2011) quoting Malley v. Briggs,
475 U.S. 335, 341 (1986). Once the defense of qualified immunity has been raised, the
plaintiff has the burden of demonstrating the defendant is not entitled to qualified immunity.
Rodriguez v. Passinault, 637 F.3d 675, 689 (6th Cir. 2011).
“The contours of the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Ciminillo v. Streicher, 434 F.3d 461,
468 (6th Cir. 2006). The legal right cannot be framed in general terms to encompass an
expansive area of law. Bills v. Aseltine, 52 F.3d 596. 602 (6th Cir. 1995). The exact
circumstances of the particular case need not have been previously held illegal for the right to
be “clearly established,” but the right must be clear in a particularized way to put the official
on notice that his conduct is illegal. See Scicluna v. Wells, 345 F.3d 441, 446 (6th Cir. 2003);
Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002).
In the within matter, the parties do not dispute that the Westlake Defendants were
acting under color of state law at the time of this incident. Plaintiffs allege that their
Fourteenth Amendment substantive due process rights were violated when Arcuri and Fox
deployed their stop sticks, forcing Pawlak off the road and into the tavern.
Fourteenth Amendment Due Process
The Court’s next inquiry is whether Arcuri and Fox breached Plaintiffs’ Fourteenth
Amendment due process rights. A pillar of the Fourteenth Amendment’s due process
guarantee is protection against arbitrary action by the government against individuals. Wolff
v. McDonnell, 418 U.S. 539, 558 (1974).

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In County of Sacramento v. Lewis, 523 U.S. 833 (1998), the Supreme Court ruled that
in order for police action in a high speed chase to qualify as a Fourteenth Amendment
transgression it must reach “the cognizable level of executive abuse of power as that which
shocks the conscience.” In Lewis, the Supreme Court found that actions that shock the
conscience lie within a spectrum. Id at 849, citing Daniels, 474 U.S. at 327. At one end lies
“liability for negligently inflicted harm [which] is categorically beneath the threshold of
constitutional due process.” Id. At the other end of the spectrum is “conduct intended to
injure in some way unjustifiable by any government interest [which] is the sort of official
action most likely to rise to the conscience-shocking.” Id. However, as the Supreme Court in
Lewis opined:
Whether the point of the conscience shocking is reached when injuries are
produced with culpability falling within the middle range, following from
something more than negligence but “less than intentional conduct, such as
recklessness or ‘gross negligence...’” is a matter for closer calls.
Id. at 849, quoting Daniels, 474 U.S. at 334.
Acknowledging that a mechanical application of due process rules is inappropriate,
the Lewis court held “that high-speed chases with no intent to harm suspects physically or to
worsen their legal plight do not give rise to liability under the Fourteenth Amendment,
redressible by an action under § 1983.” Id. at 854.
The Sixth Circuit has accordingly applied this intent-to-harm framework to high-speed
chases, ruling rather conclusively that absent intent to harm, pursuing officers in a high-speed
chase do not violate the Fourteenth Amendment rights of a fleeing suspect. See Meals v. City
of Memphis, Tenn., 493 F.3d 720, 729 (6th Cir. 2007). However, the instant case presents the
distinct question of whether the same Fourteenth Amendment analysis should apply to

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officers responding to, but not directly involved in police chases. More specifically, it poses a
question of whether police road blocks or stop sticks deployment may violate the Fourteenth
Amendment rights of innocent third parties.
While the Sixth Circuit applies an intent to harm standard to high speed chases, it
takes a different stance for circumstances where state actors have time for deliberation. “The
guiding principle seems to be that a deliberate-indifference standard is appropriate in ‘settings
[that] provide the opportunity for reflection and unhurried judgments,’ but that a higher bar
may be necessary when opportunities for reasoned deliberation are not present.” Bukowski v.
City of Akron, 326 F.3d 702, 710 (6th Cir. 2003) quoting Ewolski v. City of Brunswick, 287
F.3d 492, 511 (6th Cir. 2002).
Intent to harm
It is of the utmost importance that officers “balance on one hand the need to stop a
suspect and show that flight from the law is no way to freedom, and, on the other, the
high-speed threat to all those within stopping range, be they suspects, their passengers, other
drivers, or bystanders.” Lewis, 523 U.S. at 853.
There is no question that Pawlak posed a grave danger to the public at large. Pawlak
was traveling at nearly 75 miles per hour in a 35 miles per hour zone, while driving erratically
on a two-lane road with construction barriers. For their part, Arcuri and Fox had under three
minutes to respond from the time they received the dispatch call to the time that they reached
the crash site.
While Defendants’ placement of the stop sticks is open to debate, it is not reasonable
to assume that they could have known that the use of the stop sticks would have resulted in a

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collision impacting innocent third persons. There is no evidence that Defendants possessed
the requisite intent to maliciously or improperly deprive Plaintiffs in the Dover Gardens
Tavern of their constitutional rights.
Deliberate indifference/gross negligence
Plaintiffs argue that Defendants set up a roadblock in the path of the fleeing suspect.
Plaintiffs assert that such a scenario is distinguishable from a high speed pursuit and that the
Court should adopt either the deliberate indifference standard or the gross negligence standard
rather than the intent to harm standard for Fourteenth Amendment due process violations.
“To rise to the level of a constitutional violation, a deliberately indifferent act must be
one which is conscience-shocking – the Supreme Court has acknowledged that not every
deliberately indifferent action will rise to the “constitutionally shocking level.” Bublitz v.
Cottey, 327 F.3d 485, 490 (7th Cir. 2003) citing Lewis, 523 U.S. at 852. “The Supreme Court
has also noted that the “deliberate indifference” articulation should only be used when actual
deliberation by a defendant was possible.” Bublitz, id.; Lewis, 523 U.S. at 851.
Even in circumstances applying the deliberate indifference standard, determining
whether an officer acted with complete disregard for the potential consequences of his actions
requires weighing a number of potential risks, including the risk posed by allowing the highspeed chase to continue on public streets. Bublitz, 327 F.3d at 491. As the Court in Lewis
reasoned:
[The officer] was faced with a course of lawless behavior for which the police
were not to blame. They had done nothing to cause [the plaintiff’s] high-speed
driving in the first place, nothing to excuse his flouting of the commonly
understood law enforcement authority to control traffic, and nothing (beyond a
refusal to call off the chase) to encourage him to race through traffic at
breakneck speed forcing other drivers out of their travel lanes. ... While
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prudence would have repressed the reaction, the officer's instinct was to do his
job as a law enforcement officer, not to induce [the plaintiff’s] lawlessness, or
to terrorize, cause harm, or kill. Prudence, that is, was subject to
countervailing enforcement considerations, and while [the officer] exaggerated
their demands, there is no reason to believe that they were tainted by an
improper or malicious motive on his part. 523 U.S. at 855.
Arcuri and Fox had, at most, three minutes to make their decision on how to intervene.
The Court is not basing its analysis on the length of the time period alone, but is also
balancing the threat presented by the driver, the rapidly changing conditions and attendant
risks against the wisdom of the officers’ decision. Defendants did not know with absolute
certainty the eventual route of the driver (as evidenced by their initial reaction to block access
to the I-90 freeway on-ramp). Nor did they foresee that a driver would continue speeding at
75 miles per hour in a 35 mile per hour zone in a populated area.
Although Arcuri had previous experience using stop sticks, where the fleeing vehicle
lost control into a ravine, this prior conduct is not enough by itself to show deliberate
indifference. While Arcuri’s action here did involve some risk, he was not deliberately
indifferent to the risk. Defendant officers deployed the tire deflation device with the hope that
Pawlak’s truck would be stopped. Though neither Arcuri nor Fox personally witnessed
Pawlak’s erratic operation of the truck, with the information they were given they could
reasonably infer that Pawlak presented a danger to the public as long as he was permitted to
continue on his perilous path. Neither officer had the luxury of “reflection” or “unhurried
judgment.” See generally, Bukowski; Ewolski.
Plaintiffs also contend that the Fourteenth Amendment claims against Arcuri and Fox
can be governed by the gross negligence standard; that is, conduct more than negligent but
less than intentional.
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Plaintiffs direct the Court’s attention to Reed v. County of Allegan, 688 F.Supp. 1239
(W.D. Mich. 1988) in which police officers maintained a high-speed chase and then set up an
unmarked, concealed roadblock in the plaintiff-motorist’s path. The Reed court denied a
motion to dismiss, finding that the complaint sufficiently alleged that the defendants deprived
plaintiff of his Fourteenth Amendment liberty rights through grossly negligent or reckless
conduct. Further, the Reed court cited Nishiyama v. Dickson County, Tennessee, 814 F.2d
277 (6th Cir. 1987) for the proposition that “an allegation of gross negligence on the part of
government officials was sufficient to state a claim for deprivation of due process, since such
an allegation charged the officials with ‘arbitrary use of government power.’” Reed, 688
F.Supp. at 1244.
However, the Court is not convinced. Upon review of Sixth Circuit case law
following Nishiyama and Reed, the Court finds that the Nishiyama standard of culpability is
no longer correct. In Lewellen v. Metropolitan Gov’t of Nashville & Davidson County, 34
F.3d 345 (1994), the Sixth Circuit held that “[g]ross negligence is not actionable under
§ 1983, because it is not ‘arbitrary in the constitutional sense.’” Id. at 351, citing Collins v.
City of Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 1071 (1992). The court in Lewellen
also questioned whether even deliberate indifference by state actors could give rise to a
substantive due process claim by a plaintiff who was not in the custody of the state. Lewellen,
34 F.3d at 350 n. 4. “What seems to be required is an intentional infliction of injury, ..., or
some other governmental action that is ‘arbitrary in the constitutional sense.’” Id. at 351.
Plaintiffs have not met their burden of demonstrating that the Westlake Defendants are
not entitled to the qualified immunity defense. Plaintiffs have failed to show that Arcuri and

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Fox acted with an intent to harm or with deliberate indifference. Even if Plaintiffs could
demonstrate that Defendants’ actions were grossly negligent or reckless, their claims still
would not be actionable under § 1983. Viewed in a light most favorable to Plaintiffs, the
facts do not show that these Defendants violated Plaintiffs’ constitutional rights. Thus, the
Court echoes the sentiments of the Sixth Circuit in Lewellen: “When all is said and done, this
case, ..., amounts to nothing more than a non-intentional tort case the facts of which give the
plaintiff a strong claim on our sympathies.” Id.
Clearly established right
As the Court outlined earlier, if a plaintiff can show that he has suffered a
constitutional violation, then the analysis turns to whether the constitutional right was clearly
established at the time such that a reasonable official would have understood that he was
violating that right. Sample, 409 F.3d at 696-97.
Even assuming Plaintiffs had demonstrated that Arcuri and Fox violated their
Fourteenth Amendment substantive due process rights, the Court finds that the rights were not
clearly established. To determine if a right is clearly established, the Court looks first to
Supreme Court decisions, then decisions from the Sixth Circuit Court of Appeals, then to
other courts within this circuit, and finally to decisions from other circuits. Buckner v.
Kilgore, 36 F.3d 536, 539 (6th Cir. 1994). Decisions from other circuits must point
unmistakably to the unconstitutionality of the act and be so clearly foreshadowed by direct
authority as to leave no doubt in a reasonable person’s mind that the act is unconstitutional.
Gean v. Hattaway, 330 F.3d 758, 767-78 (6th Cir. 2003).
Following a review of the case law cited by the parties and upon conducting its own

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search, the Court determines that Plaintiffs’ asserted constitutional rights are not clearly
established so that a reasonable police officer would know he was violating the constitutional
rights of third parties.
In Lewis, the Supreme Court held that “high-speed chases with no intent to harm
suspects physically or to worsen their legal plight do not give rise to liability under the
Fourteenth Amendment, redressible by an action under § 1983.” Lewis, 523 U.S. at 854.
Chesney v. Hill, 813 F.2d 754 (6th Cir. 1987) involved a police roadblock and the
Sixth Circuit found that the plaintiff, at best, alleged negligence on the part of the defendants
which was not cognizable as a Fourteenth Amendment violation.
In Buckner, supra, a police cruiser pulled across two highway lanes and the speeding
suspect on a motorcycle was unable to stop. The Sixth Circuit found a Fourth Amendment
violation for terminating the suspect’s freedom of movement. Plaintiffs here claim only
Fourteenth Amendment violations and since they were inside the Dover Gardens Tavern, their
freedom of movement was not impeded by Defendants’ parked cruisers or the stop sticks.
In Reed, the Michigan District Court held that gross negligence or reckless conduct
supported a Fourteenth Amendment claim. As discussed previously, since Lewellen, the Reed
decision is no longer good law and could not have informed a reasonable officer in 2014 of a
clearly established right.
The Ninth Circuit case of Brower v. Inyo County, 817 F.2d 540 (9th Cir. 1987)
involved the implementing a roadblock and found:
The use of roadblocks ... per se is not a violation [of the due process clause],
but the pattern and practice of using a roadblock designed as a deathtrap, if
established by proof, could be a violation of due process ... . Id. at 545.

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Deploying the stop sticks by Arcuri and the positioning of Defendants’ police cruisers
is distinguishable from the Brower “deathtrap.” The Brower decision does not point
unmistakably to the unconstitutionality of the conduct before this Court for § 1983 analysis.
In Bublitz, supra, the police deployed a tire-deflation device. The fleeing vehicle ran
over the spikes, veered to the right and struck an innocent third-party’s vehicle, killing two
passengers. The Seventh Circuit concluded that the police conduct did not rise to the level of
a constitutional violation under either the Fourth or Fourteenth Amendments.
None of the cases cited by Plaintiffs nor found in the Court’s own research show that
Arcuri’s and Fox’s actions were unlawful beyond debate. Plaintiffs have failed to identify the
violation of any clearly established constitutional right that a reasonable officer would have
understood at the time.
Defendants Bielozer and Eschenfelder
Defendants have moved for summary judgment in favor of Chief Kevin Bielozer and
Lieutenant William Eschenfelder on Plaintiffs’ claim in Count Two of their Complaints for
supervisory liability under § 1983. In their Opposition, Plaintiffs have not countered any of
the arguments nor even addressed their claims in Count Two. The Court finds that Plaintiffs
have abandoned Count Two and Defendants Bielozer and Eschenfelder are entitled to
judgment on the § 1983 supervisory liability claim.
Claims against the municipality
When a § 1983 claim is made against a municipality, the Court must analyze whether
the plaintiff’s harm was caused by a constitutional violation and if so, whether the city is
responsible for that violation. Harker Heights, 503 U.S. at 120. The Court has determined

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that Plaintiffs have failed to establish the violation of any clearly established constitutional
right. “[W]here no constitutional violation by the individual defendants is established, the
municipal defendants cannot be held liable under § 1983.” Bukowski, 326 F.3d at 712-13.
The Westlake Defendants, therefore, are entitled to summary judgment in their favor on
Counts Three and Four of their Complaints.
PART TWO
Motion of City of Avon, Richard A. Bosley, Andy Kehl, Pat Neuhoff and Robert Olds
for Summary Judgment
This matter is before the Court on the unopposed Motions of Defendants City of
Avon, Richard A. Bosley, Andy Kehl, Pat Neuhoff and Robert Olds (“the Avon Defendants”)
for Summary Judgment on Qualified Immunity (ECF # 25 in 16-957), (ECF # 24 in 16-1753)
and (ECF # 17 in 16-2588). For the following reasons, the Court grants summary judgment
for Defendants in all the above cases.
I. FACTUAL BACKGROUND
In the above three Complaints, as relates to the Avon Defendants, Plaintiffs allege
Defendant Robert Olds was the supervisor of Officers Kehl and Neuhoff on October 23, 2014,
when Brandon Pawlak stole a truck parked at a golf course in Avon Lake, Ohio. Having
obtained information on the location of the stolen truck, Neuhoff began a pursuit of Pawlak
and was joined in the pursuit by Kehl. According to the Complaints, these officers increased
the speed of the pursuit to limits that were excessive, outrageous and dangerous. Kehl and
Neuhoff were in contact with Olds, who authorized the pursuit. Plaintiffs allege Olds, Kehl
and Neuhoff requested Westlake police officers create a roadblock and deploy stop sticks and

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were aware that Westlake officers did in fact create a roadblock and deployed stop sticks.
When Pawlak ran over the stop sticks it caused him to lose control of the vehicle which then
crashed into the Dover Gardens Tavern, injuring Plaintiffs. According to Plaintiffs,
Defendants City of Avon and Avon Chief of Police Bosley ratified the conduct of the officers
and endorsed their actions.
Plaintiffs allege Substantive Due Process violations against Kehl and Neuhoff for
initiating and continuing a high speed chase and advising Westlake officers to create a
roadblock under circumstances substantially certain to cause injury or death to members of
the public. Plaintiffs allege Supervisory Liability in their individual capacities against Olds
and Bosley for participating in and encouraging the conduct of Kehl and Neuhoff, for failing
to train and supervise Kehl and Neuhoff, and for remaining deliberately indifferent to the
rights of members of the public. They further allege claims against City of Avon and Bosley,
in his official capacity, for failure to train and supervise Defendants and for customs, policies
and practices ratifying the conduct of Defendant officers, resulting in violations of Plaintiffs’
Fourteenth Amendment rights. Finally, Plaintiffs allege recklessness under Ohio law against
all Defendants.
Defendants move for summary judgment, contending they are entitled to qualified
immunity on all Plaintiffs’ federal claims. According to Defendants, their pursuit of Pawlak
was not conscience-shocking. As the Supreme Court has stated, officers do not cause or
encourage lawless behavior by simply refusing to call off a chase. Lewis, 523 U.S. at 855.
Pawlak’s lawless conduct in stealing a car initiated the pursuit. Furthermore, absent any
evidence of intent to harm “unrelated to the legitimate object of arrest,” Plaintiffs cannot

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“satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due
process violation.” Id at 836.
Plaintiffs have offered no evidence that the Avon Defendants violated their
constitutional rights. When Plaintiffs failed to file any opposition to the summary judgment
motions of the Avon Defendants, the Court issued a Show Cause Order why the claims
against these Defendants should not be dismissed absent any opposition. Plaintiffs failed to
respond to the Show Cause Order.
II. LAW AND ANALYSIS
Local Rule 7.1(g) of the United States District Court for the Northern District of Ohio
authorizes the Court to “rule on unopposed motions without hearing at any time after the time
for filing an opposition has expired.” Pursuant to Local Rule 7.1(d), “each party opposing a
motion must serve and file a memorandum in opposition within thirty (30) days after service
of any dispositive motion.” The district court’s power to grant dispositive motions because
they are unopposed is firmly settled. Demsey v. R.J. Reynolds Tobacco Co., 2005 WL
1917934, *2 (N.D.Ohio 2005); Peacock v. Bayview Loan Serv., 2005 U.S. Dist. LEXIS
10276, *9-10 (N.D.Ohio 2005) (both citing to Cacevic v. City of Hazel Park, 226 F.3d 483,
492 (6th Cir.2000)). A party’s continuing “failure to respond” may be deemed a “confession”
to the motion’s merit. Cacevic, id. Any further review by this Court would be an inefficient
use of the Court’s limited resources. Thomas v. Arn, 728 F.2d 813 (6th Cir.1984), aff’d, 474
U.S. 140 (1985); Howard v. Secretary of Health and Human Services, 932 F.2d 505 (6th
Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
Defendants have moved for judgment based on qualified immunity, contending they

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did not violate Plaintiffs’ clearly established rights. On a motion for qualified immunity the
plaintiff has the burden of demonstrating the defendant is not entitled to qualified immunity.
Rodriguez, 637 F.3d at 689. Having moved for qualified immunity, Defendants have raised
the defense and Plaintiffs’ failure to respond militates in favor of judgment for Defendants
since Plaintiffs have not met their burden. Therefore, in the absence of any evidence of a
constitutional violation and in the absence of any evidence or argument against Defendants’
qualified immunity defense, the Court grants summary judgment for Defendants and against
Plaintiffs on all Plaintiffs’ federal claims.
For the same reasons as stated by the Court in the prior section captioned “claims
against the municipality”, the Court finds the City of Avon cannot be held liable under §1983
where there is no underlying constitutional violation and finds it is entitled to judgment.
III. CONCLUSION
For these reasons, the Motions (ECF DKT #26 in Case No. 1:16CV957; ECF DKT
#25 in Case No. 1:16CV1753; ECF DKT #18 in Case No. 1:16CV2588) of Defendants, City
of Westlake, Kevin Bielozer, Mark Arcuri, Nathan Fox and William Eschenfelder, for
Summary Judgment are granted. Also, the Court grants summary judgment for the Avon
Defendants in the unopposed Motions at (ECF # 25 in 16-957), (ECF # 24 in 16-1753) and
(ECF # 17 in 16-2588).
Plaintiffs have also asserted claims for Recklessness under Ohio law. “Under 28
U.S.C. § 1367(c)(3), the district court may decline to exercise supplemental jurisdiction over
a claim if it has dismissed all claims over which it has original jurisdiction.” Brooks v. Rothe,
577 F.3d 701, 709 (6th Cir. 2009) (quoting Wojnicz v. Davis, 80 Fed.Appx. 382, 384-85 (6th

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Cir. 2003)). Because Plaintiffs have failed to establish a federal claim for which relief can be
granted, their remaining state law claims against Defendants are dismissed without prejudice.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: February 13, 2018

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