Newton et al v. Ellis et al
Filing
76
Amended Opinion & Order signed by Judge James S. Gwin on 4/27/18. The Court, for the reasons set forth in this order, grants the Ellis defendants' motion for judgment on the pleadings and the Shaker Heights Defendants motion to dismiss as to Chief DeMuth, Commander Cole, and the City of Shaker Heights. All of the Plaintiffs claims against those defendants are dismissed with prejudice. The Court grants the Shaker Heights defendants motion to dismiss the Brady claims against defendan t Lamielle but denies the motion to dismiss the other claims against him except to the extent that they are premised on the Brady claims. The Court also grants defendant Page's motion for judgment on the pleadings as to the Brady claim. The ot her claims against her remain pending. The case will proceed as scheduled on plaintiffs' remaining claims and the Ellis defendants counterclaims. (Related Docs. 27 , 39 , 40 , and 73 ) (D,MA) (Order amended, text modified, and NEF regenerated on 4/28/18. # 1 Main Document) (D,MA)
Case: 1:17-cv-02545-JG Doc #: 76 Filed: 04/27/18 1 of 23. PageID #: 931
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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MARK A. NEWTON, &
:
PATRICIA RIDEOUT,
:
:
Plaintiffs,
:
:
vs.
:
:
JACQUELYN ELLIS, et al.
:
:
Defendants.
:
:
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Case No. 1:17-cv-2545
OPINION & ORDER
[Resolving Docs. 27, 39, 40, 73]
JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Plaintiff Mark Newton was criminally charged with sexually assaulting Defendant
Jacquelyn Ellis while he was her middle school softball coach.1 Newton alleges that Ellis’s
allegations are false;2 Ellis and her parents maintain that they are true.3
Plaintiff Newton and his wife, Plaintiff Patricia Rideout, have now sued Jacquelyn Ellis
and her parents (the Ellis Defendants), have sued a detective who allegedly withheld
evidence (Jessica Page), have sued other law enforcement officers, and have sued the City of
Shaker Heights.4 The defendants have moved to dismiss or for judgment on the pleadings.5
For the reasons below, the Court GRANTS IN PART and DENIES IN PART Detective
Page’s motion for partial judgment on the pleadings, GRANTS IN PART and DENIES IN PART
the City Shaker Heights Defendants’ motion to dismiss, and GRANTS the Ellis Defendants’
1
2
3
Doc. 15 at ¶ 106.
See generally id.
Doc. 20 at 39–41.
See generally id. The Court does not, in this order, address the claims against Defendant Detective Walter Siegel
because he is not included in the answer or motion to dismiss with the City and the other officers. The Court will refer to
the City and police officer defendants, except for Siegel, as the Shaker Heights Defendants.
5
Doc. 27; Doc. 39; Doc. 40. Plaintiffs oppose. Doc. 44; Doc. 45; Doc. 53. Defendants reply. Doc. 46; Doc. 55;
Doc. 69.
4
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motion for judgment on the pleadings.
I. BACKGROUND
At this stage, the Court must accept all of the allegations in the complaint as true and
draw all reasonable inferences in Plaintiffs’ favor.6 Although the Court provides the factual
background of this case using the Plaintiffs’ version, it intends no suggestion as to what the
evidence at trial would show.
A. Jacqueline Ellis’s Allegations
From 2009 through 2013, Plaintiff Newton coached the softball team at the Laurel
School for Girls in Shaker Heights, Ohio.7 In May 2013, following the end of the softball
season, Plaintiff Newton left his Laurel School position to spend more time on his law
practice.8
Defendant Jacquelyn Ellis played on the Laurel School’s middle school softball team
during the 2011-2012 and 2012-2013 academic years.9 At that time, Jacquelyn Ellis was in
seventh grade and eighth grade.10
All of that is uncontested. But from there the parties’ versions of events diverge
sharply.
The complaint asserts that, in August 2014, Ellis (by this point a high school
sophomore at the Laurel School) began telling various individuals that Plaintiff Newton had
sexually assaulted her while she was in the eighth grade. 11 She claimed these assaults
6
See Cates v. Crystal Clear Techs., LLC, 874 F.3d 530, 534 (6th Cir. 2017) (quoting Bikerstaff v. Lucarelli, 830
F.3d 388, 396 (6th Cir. 2016)).
7
Doc. 15 at ¶¶ 21, 24.
8
Id. at ¶¶ 27–28.
9
Id. at ¶ 25,
10
11
Id.
Id. at ¶¶ 30–31, 33.
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occurred in an indoor equipment room at the Laurel School.12
Plaintiff Newton claims that Ellis’s allegations are false and were made in bad faith.13
With their counterclaim, Jacquelyn Ellis and her parents represent these allegations are true.14
This dispute forms the basis for all the other claims in this case.
B. The Ellis Defendants Report the Alleged Abuse
Plaintiff Newton alleges that Jacquelyn Ellis told her parents, Defendants Rodney and
Andrea Ellis, about the alleged assault in August 2014. 15 He further alleges that they did not
take her to the hospital or the police at that time, instead waiting to have her disclose the
allegations to her therapist on October 15, 2014.16
At her October 15 therapy appointment, the complaint alleges that Plaintiff Jacquelyn
Ellis reported that Plaintiff Newton had sexually assaulted her on two occasions. 17 The
therapist reported the allegation to Andrea Ellis immediately after the session. 18 The
complaint alleges that Ellis has continued to make similar allegations to therapists and other
medical professionals.19
The next day, according to the complaint, Andrea Ellis reported the allegations to Ann
Klotz, the Laurel School head of school.20 And on October 17, both Ellis’s therapist and
Klotz reported the allegations to the Ohio Department of Job and Family Services. 21 Head
of School Klotz also informed several Laurel School administrators, teachers, and
12
13
Id. at ¶ 33.
Id. at ¶ 32.
14
Doc. 20 at ¶ 4.
Doc. 15 at ¶ 33.
16
Id. at ¶¶ 34–35. He claims they did this because the therapist was a mandatory reporter and they thought
disclosure to a therapist would strengthen their case against Plaintiff Newton and the Laurel School. Id. at ¶ 37.
17
Id. at ¶ 38.
18
Id. at ¶ 39.
19
Id. at ¶ 44.
20
Id. at ¶ 41.
21
Id. at ¶ 42.
15
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employees.22
Plaintiff Newton asserts that Ellis met with Klotz on October 21, 2014, and repeated
her sexual assault allegations.23 But, he claims, her description of the assault was materially
inconsistent with what Jacquelyn Ellis had told her therapist on October 15.24
On January 7, 2015, Head of School Klotz sent a letter to all Laurel School Families
and Alumnae concerning Jacquelyn Ellis’ allegations, but did not mention Newton by
name.25
On January 29, 2015, Ellis met with a Summit County Child Services case worker.26
Plaintiff Newton alleges that Jacquelyn Ellis repeated her sexual assault allegations but
described the assault in a way that was inconsistent with the descriptions that Ellis had earlier
given to Klotz and her therapist.27
C. Detective Page’s First Interview and Initial Investigation
The Shaker Heights Police Department assigned Defendant Jessica Page as the lead
detective in Ellis’s case. 28 Detective Page first interviewed Ellis on March 23, 2015. 29
According to Plaintiff Newton, Ellis repeated her allegations to Detective Page, this time
consistently with what she told the social services case worker.30
Plaintiff Newton alleges that Defendant Page conducted the interview in a biased,
unprofessional manner and in bad faith.31 In particular, he alleges that she described herself
Id. at ¶ 43.
Id. at ¶ 45.
24
Id. at ¶ 46.
25
Id. at ¶ 47.
26
Id. at ¶ 48.
27
Id. at ¶¶ 48–50.
28
Id. at ¶ 52.
29
Id. at ¶ 51.
30
See id. at ¶¶ 50, 54.
31
Id. at ¶ 56.
22
23
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as Ellis’s “advocate,” evinced a motivation to destroy Plaintiff Newton’s reputation, and
showed a determination to proceed regardless of the evidence.32
Plaintiff Newton alleges that, during the course of the March 23, 2015, interview,
Defendant Jacquelyn Ellis told Defendant Page that the assaults occurred in the “equipment
room.”33 Plaintiff claims that Ellis drew a diagram of the gymnasium area and the equipment
room where she contended the assault had occurred (the “March 23 Diagram”).34
Plaintiff Newton argues that Detective Page soon discussed Ellis’s allegations with
Head of School Klotz and received information from the social worker and Ellis’s therapist,
discovering that there was some inconsistency between Ellis’s various descriptions of the
assault.35
Plaintiff Newton also alleges that, on August 25, 2015, Defendant Page learned from
Sally Hacala, the assistant softball coach, that the room Ellis identified as an equipment room
in the March 23 diagram was actually an art room during the 2012-2013 school year.36 He
alleges that no sports equipment was located in the room at the time of the 2012-2013
alleged assaults.37
Plaintiff Newton claims that Detective Page failed to include the factual
inconsistencies between Ellis’s statements and the nature of the “equipment” room in her
reports or to further investigate any inconsistencies.38
Id. at ¶¶ 55–56.
Id. at ¶ 57.
34
Id. Plaintiff Newton also alleges that, at some point during this first interview, Jacquelyn “turned her head,
leaned into her right shoulder, and whispered into the top pocket of her zip-up jacket.” Id. at ¶ 62.
35
Id. at ¶¶ 64, 68, 70.
36
Id. at ¶¶ 65–66.
37
Id. at ¶ 66.
38
Id. at ¶ 72.
-532
33
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D. Detective Page’s Later Interviews
The complaint alleges that Defendant Jacquelyn Ellis met with Page and another
detective, Defendant Walter Siegel, on two additional occasions.39
In a second interview on April 21, the officers allegedly questioned Ellis further about
the room where the alleged assault occurred.40 The complaint alleges that in this interview,
Ellis described the room as containing “buckets of softballs and large metal storage shelving
units.”41 Ellis also drew a second diagram (the April 21 diagram) of the storage room.42
Plaintiff Newton alleges that this diagram was materially inconsistent with the March 23
diagram and, therefore, materially exculpatory.43
According to the complaint, Defendant Page—despite knowing of the April 21
diagram’s potential significance—did not mention it in her reports or include it in the case
file or disclose it to the defense.44 Newton also alleges that Page acted in a biased fashion
during this interview.45
E. The State Criminal Proceedings
Ohio indicted Plaintiff Newton in September 2016 on charges of rape, kidnapping,
gross sexual imposition, and sexual battery.46 Plaintiff Newton alleges that Defendant Page
failed, during her grand jury testimony, to inform the jurors about her own personal bias
against Plaintiff Newton or the alleged contradictions in Jacquelyn Ellis’s statements and
Id. at ¶¶ 74–75.
Id. at ¶ 82. In this second interview, Plaintiff Newton also alleges that detectives questioned Ellis about her
covert whispering during the first, March 23, interview. Id. at ¶ 76–79. He claims that the officers believed, based on video
39
40
footage of the interview, that Ellis whispered “I think she got the storage room wrong” or “I don’t think she had the storage
room right.” Id. at ¶ 77.
41
Id. at ¶ 83.
42
Id. at ¶ 86
43
Id. at ¶¶ 89–90.
44
See id. at ¶¶ 91–93.
45
Id. at ¶ 87.
46
Id. at ¶ 106.
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diagrams.47 He claims that the grand jury would not have indicted him if it had known these
facts.48
Following the indictment, stories appeared in various media outlets between
September 12, 2016, and September 26, 2016, reporting on the accusations and court
proceedings against Newton. 49 Moreover, Head of School Klotz sent another letter to
families of Laurel School students and school alumni informing them of the indictment, this
time including Newton’s name. 50 And information about the case was available on the
Cuyahoga Court of Common Pleas’ website.51
In November 2016, the complaint alleges that the Ellis Defendants sent a demand
letter to the Laurel School describing Ellis’s accusations against Newton and asking for $2
million.52
On March 29, 2017, Jacquelyn Ellis met with Defendant Page and Prosecutor Maggie
Kane.53 The complaint alleges that this was an informal meeting rather than part of the
judicial process and that Ellis repeated her allegations during the meeting. 54
During the lead-up to his criminal trial, Plaintiff Newton’s defense counsel (apparently
after reviewing a tape of the April 21 interview) realized that Ellis drew a second diagram.55
He contacted Prosecutor Kane and Defendant Detective Siegel to request a copy.56 Plaintiff
Newton’s criminal defense attorney was told that Defendant Page denied that Ellis had ever
Id. at ¶¶ 99–102.
Id. at ¶¶ 103, 105.
49
Id. at ¶¶ 107, 109–14.
50
Id. at ¶ 108.
51
Id. at ¶ 115.
52
Id. at ¶¶ 116–17.
53
Id. at ¶ 120.
54
Id. at ¶¶ 121–23.
55
Id. at ¶ 127.
56
Id. at ¶¶ 128, 133–34,136–37.
47
48
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drawn a second diagram.57 Page allegedly claimed that Ellis had merely drawn on top of the
first diagram.58 Page also informed Siegel that if there had been a second diagram, it would
have been in the file.59 Siegel checked the file and informed defense counsel that there was
only one diagram.60
Plaintiff Newton’s criminal trial began on May 8, 2017. 61
During her direct
examination, Jacquelyn Ellis testified that at the time she was assaulted the equipment room
was used as an art room during the day due to renovations on the third floor of the school.62
But, while Ellis was being cross examined, Jacquelyn Ellis revealed that she had, in fact,
drawn two diagrams for the police.63
The state court held an evidentiary hearing on the failure to disclose the April 21
diagram to the defense.64 During that hearing, it became clear that Defendant Page had
concealed the April 21 diagram from both the prosecutor and the defense and had lied to
Defendant Siegel about the existence of the diagram.65
The state court dismissed the charges against Plaintiff Newton as a discovery
sanction.66
F. Procedural History
Plaintiffs Newton and Rideout filed this lawsuit on December 7, 2017. 67 The
complaint alleges that Detective Page, Detective Siegel, and the Shaker Heights Defendants
Id. at ¶¶ 130–32, 135.
Id. at ¶ 135.
59
Id. at ¶ 139.
60
Id. at ¶¶ 140–43.
61
Id. at ¶ 149.
62
Id. at ¶ 157.
63
Id. at ¶¶ 164–65.
64
Id. at ¶ 169.
65
Id at ¶¶ 170–176.
66
Id. at ¶¶ 199–202.
67
See generally id.
57
58
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are liable under 42 U.S.C. § 1983 for concealing exculpatory evidence 68 and malicious
prosecution.69 Plaintiffs also assert § 1983 claims against the City of Shaker Heights and
Page’s supervisors under a theory of supervisory liability70 and for failure to properly train
Page.71 In addition, they assert a failure to intervene claim against Defendant Siegel72 and a
failure to investigate claim against Page.73
Plaintiffs also make various state law claims. They assert a civil conspiracy claim
against all the Defendants. 74 They assert claims of intentional infliction of emotional
distress75 against the Ellis Defendants and Page. They assert further claims for defamation, 76
false light, 77 malicious prosecution, 78 and abuse of process79 against the Ellis Defendants.
Plaintiff Rideout makes a loss of consortium claim against all the Defendants.80
The defendants, except for Defendant Siegel, move for dismissal or for judgment on
the pleadings as to some or all of the claims against them.81 Plaintiff Newton opposes.82
II. LEGAL STANDARD
When considering a motion to dismiss for failure to state a claim or motion for
judgment on the pleadings, the Court construes the complaint in the light most favorable to
the nonmoving party, accepting its allegations as true, and drawing all reasonable inferences
Id. at ¶¶ 253–64.
Id. at ¶¶ 276–84.
70
Id. at ¶¶ 265–69.
71
Id. at ¶¶ 265–75.
72
Id. at ¶¶ 341–42.
73
Id. at ¶¶ 285–91.
74
Id. at ¶¶ 299–304.
75
Id. at ¶¶ 331–37.
76
Id. at ¶¶ 292–98.
77
Id. at ¶¶ 322–30.
78
Id. at ¶¶ 305–16.
79
Id. at ¶¶ 317–21.
80
Id. at ¶¶ 338–40.
68
69
81
82
Doc. 27; Doc. 39; Doc. 40.
Doc. 44; Doc. 45; Doc. 53. Defendants reply. Doc. 46; Doc. 55; Doc. 69.
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in favor of finding the complaint sufficient.83 In order to survive a motion to dismiss or for
judgment on the pleadings, the complaint must allege sufficient facts “to state a claim for
relief that is plausible on its face.”84 While “detailed factual allegations” are unnecessary, a
counter-plaintiff must provide more than a “formulaic recitation of the elements of a cause
of action.”85
III. ANALYSIS
A. Suppression of Evidence Claim
The Court begins with Plaintiff Newton’s suppression of evidence claim.86 In Brady
v. Maryland, the Supreme Court held that, in a criminal case, the government has a
constitutional obligation to disclose exculpatory evidence to the defense.87 Brady imposes
disclosure obligations on police officers and prosecutors and allows a Defendant to bring a
lawsuit against either under § 1983.88
In Strickler v. Greene89 the Supreme Court held that “strictly speaking, there is never
a real “Brady violation” unless the nondisclosure was so serious that there is a reasonable
probability that the suppressed evidence would have produced a different verdict.” It follows
that, a Brady claim does not lie when a criminal defendant is not convicted.90
83
Cates, 874 F.3d at 534 (quoting Bikerstaff, 830 F.3d at 396); Engler v. Arnold, 862 F.3d 571, 574–75 (6th Cir.
2017) (quoting Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006)).
84
See Nikolao v. Lyon, 875 F.3d 310, 317 (6th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
85
See id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Engler, 862 F.3d at 575 (quoting
Ashcroft, 556 U.S. at 678)).
Although there are two plaintiffs in this case, the Court will refer to most of the claims as Plaintiff Newton’s
claims, as it was his rights that were allegedly violated. To the extent that Plaintiff Rideout also has a claim, the
Court’s discussion of Plaintiff Newton’s claims also applies to her unless otherwise indicated.
86
87
373 U.S. 83 (1963).
See D’Ambrosio v. Marino, 747 F.3d 378, 389–90 (6th Cir. 2014).
Strickler v. Greene, 527 U.S. 263, 281(1999)
90
McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988) (“Because the underlying criminal
88
89
proceeding terminated in appellant’s favor, he has not been injured by the act of wrongful suppression of exculpatory
evidence.”); see also Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998) (“Plaintiff . . . was never convicted and, therefore,
did not suffer the effects of an unfair trial. As such, the facts of this case do not implicate the protections of Brady.”); Morgan
v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (“Regardless of any misconduct by government agents before or during
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After all, establishing a Brady violation requires proving that there is a reasonable
probability that, but for the suppression of exculpatory evidence, the result of the trial would
have been different.91 A defendant who has not been convicted cannot do that. At best, he
can show that the exculpatory evidence provides additional proof that the trial’s outcome
was the correct one.92 As the Sixth Circuit has explained: “[b]ecause the underlying criminal
proceeding terminated in appellant's favor, he has not been injured by the act of wrongful
suppression of exculpatory evidence.”93
In this case, the criminal charges against Plaintiff Newton were dismissed. And the
Ohio 8th District Court of Appeals has recently affirmed that dismissal.94 As a result, he
cannot state a plausible Brady claim. While Newton stresses that he was not acquitted,95 the
state criminal proceeding was unquestionably “terminated in [his] favor.”96
Plaintiff Newton protests that he is not asserting a Brady claim, but is instead asserting
a due process claim.97 That argument fails because a Brady claim is a due process claim and
a suppression or destruction of evidence claim is a Brady claim, regardless of whether it is
directed at prosecutors or the police.98 Newton cannot avoid controlling rulings that stop
his claim merely by declining to explicitly invoke Brady.
The Court therefore GRANTS Defendant Page’s motion for judgment on the pleadings
trial, a defendant who is acquitted cannot be said to have been deprived of the right to a fair trial.”). Plaintiffs argue that
McCune and these other cases are wrongly decided and point out that there is a circuit split on the question. Doc. 53 at
5–8. But this Court has no power to disregard the Sixth Circuit’s decision in McCune.
91
Strickler v. Greene, 527 U.S. 263, 280–81 (1999).
92
Smith v. Almada, 640 F.3d 931, 942 (9th Cir. 2011) (Gwin, J., concurring).
93
McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988).
94
State v. Newton, No. 105771, 2018 WL 1778658 (Ohio Ct. App. April 12, 2018).
95
Doc. 53 at 4–5.
96
McCune, 842 F.2d at 807.
97
Doc. 53 at 3–4.
98
See Moldowan v. City of Warren, 578 F.3d 351, 376–82 (6th Cir. 2009) (explaining that Brady was a due
process opinion and that police officers as well as prosecutors have Brady obligations); see also D’Ambrosio¸747 F.3d at
389–90 (explaining how a police officer’s Brady obligations differ from a prosecutor’s Brady obligations).
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and the Shaker Heights Defendants’ motion to dismiss as to Newton’s Brady claim.
B. Federal Malicious Prosecution Claim Against Page and the Shaker Heights Defendants
The Court next considers Plaintiff Newton’s constitutional malicious prosecution
claim against Page and the Shaker Heights Defendants.
In order to state a claim for malicious prosecution, a plaintiff must plausibly allege
that: (1) a criminal prosecution was initiated against the plaintiff; (2) the defendant made,
influenced, or participated in the decision to prosecute; (3) there was not probable cause to
prosecute; (4) the plaintiff suffered a deprivation of liberty as a result of the prosecution; and
(5) the criminal prosecution was resolved in the plaintiff’s favor. 99
Here, a criminal prosecution was initiated against the Plaintiff.
The Plaintiff’s
complaint also sufficiently alleges that Defendant Page influenced and likely participated in
the decision to prosecute Plaintiff Newton. Finally, the Plaintiff sufficiently alleges that the
plaintiff suffered a liberty deprivation from the prosecution; and sufficiently alleges that the
criminal prosecution was resolved in the Plaintiff’s favor.
A malicious prosecution claim under § 1983 fails “when there was probable cause to
prosecute.”100 Although it is a somewhat close question, the Court cannot say, at this time,
that Plaintiff Newton’s claim should fail because probable cause would otherwise exist if
Defendant Page had fully disclosed conflicting and undermining evidence.
Probable cause exists when reasonably trustworthy facts and circumstances warrant
a belief by a prudent person that the suspect has committed an offense. Probable cause
requires a practical, common sense determination that there is a “fair probability” or
99
Nikolao,, 875 F.3d at 317 (quoting Ashcroft, 556 U.S. at 678); Sykes v. Anderson, 625 F.3d 294, 308–09 (6th
Cir. 2010).
100
Stricker v. Township. of Cambridge, 710 F.3d 350, 365 (6th Cir. 2013) (citation omitted).
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“substantial chance” that a person is engaged in criminal activity or evidence of criminal
activity will be found in a given location.101
Defendant Jacquelyn Ellis alleged that Plaintiff Mark Newton twice molested her
when Ellis was an eighth grader.102 She made these allegations when she was a high school
sophomore, roughly eighteen months after the alleged molestations.103 She described the
molestations as occurring in an equipment room.104
Plaintiffs allege that Defendant Page failed to disclose to the grand jury inconsistencies
in Jacquelyn Ellis’s version of events.105 More importantly, receiving information about Ellis’s
allegations from Head of School Klotz, the social worker and Ellis’s therapist Detective Page
learned there inconsistencies between Ellis’s various descriptions of the assault.106 Page also
knew that Defendant Jacquelyn Ellis had drawn inconsistent diagrams of the alleged
molestation location.107 And after August 25, 2015, Defendant Page learned that the room
Defendant Jacquelyn Ellis identified as an equipment room used for the molestation was
actually an art room during the 2012-2013 school year.108 During the March 23, 2015,
interview, Defendant Jacquelyn Ellis had told Defendant Page that the assaults occurred in
the sports equipment room, not an art room.109
Probable cause involves a review of the totality-of-the-circumstances.
Plaintiffs
generally allege that, in order to manufacture probable cause before the grand jury,
101
See Illinois v. Gates, 462 U.S. 213, 238, 243 n.13 (1983); see also United States v. Poulsen, 655 F.3d 492, 504
(6th Cir. 2011) (“The magistrate judge properly found probable cause. Certainty is not required, but rather a fair probability
and something more than mere suspicion.”).
102
Doc. 15 at ¶¶ 31, 33, 38.
103
See id. at ¶¶ 25,31,33.
104
Id. at ¶33.
105
Id. at ¶¶ 99–100.
106
Id. at ¶¶ 64,68, 70.
107
Id. at ¶¶ 86, 89–90.
108
Id. at ¶¶ 65–66.
109
Id. at ¶ 57.
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Defendant Page intentionally failed to disclose exculpatory evidence of Defendant Jacquelyn
Ellis’s inconsistent statements; failed to disclose inconsistent drawings of the alleged crime
scene and failed to disclose that Ellis had wrongly identified the crime location as a sports
equipment room.
At this point, the Court cannot say that probable cause necessarily existed if these
inconsistencies are considered.110
For those reasons, the Court will DENY Defendant Page’s motion for judgment on the
pleadings and the Shaker Heights Defendants’ motion to dismiss as to the malicious
prosecution claim.
C. Failure to Investigate Claim
The open question as to whether there was probable cause to prosecute Plaintiff
Newton also defeats Defendant Page’s motion as to the failure to investigate claim. “Once
probable cause is established, an officer is under no duty to investigate further or to look for
additional evidence to exculpate the accused.”111 But in this case, the Court cannot say
based on the allegations in the complaint that probable cause existed. The Court therefore
DENIES Page’s motion for judgment on the pleadings as to that claim.
E. Monell Claim and Supervisory Liability Claim
To the extent that Plaintiff Newton intends to hold the Shaker Heights Defendants
110
While the fact that Plaintiff Newton was indicted creates a presumption of probable cause, that presumption is
rebutted where—as here—there are plausible allegations that the government deceived the grand jury. See King v.
Harwood, 852 F.3d 568, 587–88 (6th Cir. 2017) (“We hold that where (1) a law-enforcement officer, in the course of setting
a prosecution in motion, either knowingly or recklessly makes false statements (such as in affidavits or investigative reports)
or falsifies or fabricates evidence; (2) the false statements and evidence, together with any concomitant misleading
omissions, are material to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and omissions do
not consist solely of grand-jury testimony or preparation for that testimony (where preparation has a meaning broad enough
to encompass conspiring to commit perjury before the grand jury), the presumption that the grand-jury indictment is
evidence of probable cause is rebuttable and not conclusive.”).
111
Wilson, 477 F.3d at 336 (quoting Ahlers, 188 F.3d at 371).
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liable for the suppression of exculpatory evidence, the failure of his Brady claim stops his
supervisory liability and Monell claims.112 The Court will therefore GRANT the motion for
judgment on the pleadings as to those claims to the extent they are premised on the alleged
Brady violation.
The viability of the supervisory liability and Monell claims as to the malicious
prosecution claims and failure to investigate claim is a closer question.
There is no § 1983 respondeat superior liability; instead, Newton must show that the
supervisors themselves acted unconstitutionally.113 “[A] mere failure to act will not suffice to
establish supervisory liability.”114 Rather, the plaintiff must show that the supervisor engaged
in some “active unconstitutional behavior.”115 “[A] supervisory official's failure to supervise,
control or train the offending individual is not actionable unless the supervisor either
encouraged the specific incident of misconduct or in some other way directly participated in
it.”116 “[T]he plaintiff must show that the defendant “at least implicitly authorized, approved,
or knowingly acquiesced in the unconstitutional conduct of the offending officers.”117
Here, for purposes of this motion to dismiss, Plaintiff has met his burden only as to
Defendant Sergeant Marvin Lamielle.
Lamielle performed Page’s December 2015
performance evaluation.118 At the time, Page had been the lead detective in the Ellis matter
for nine months.119 Lamielle criticized Page and noted that Page “was not yet ‘a professional
fact finder,’” “makes subjective decisions to put someone in jail,” “struggled with
See Graham e x rel. Estate of Graham v. County of Washtenaw, 358 F.3d 377, 382 n.4 (6th Cir. 2004).
Ashcroft, 556 U.S. at 676–77.
114
Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016).
115
Id. (quoting Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)).
116
Id. (quoting Shehee v. Luttrell 199 F.3d 295, 300 (6th Cir. 1999)) (alteration and emphasis in original).
117
Id. (quoting Shehee, 199 F.3d at 300).
112
113
118
119
Doc. 15 at 221.
Id.
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documenting complex issues,” and “had a tendency to become emotionally attached to an
issue.”120 Lamielle further wrote that, while he commended Page for her compassion and
concern for others, “[s]he must guard against allowing that compassion to cloud her
judgment . . . when dealing with people who have great reason to lie to her.”121
Despite these concerns, concerns that present a risk that Page might attempt to secure
the criminal prosecution of suspects without probable cause, Lamielle gave Page an “Exceeds
Standards” rating and did not review the reports of her investigation into Jacquelyn Ellis’s
allegations.122 At this early motion to dismiss stage, this is enough to sufficiently allege that
Lamielle implicitly authorized or knowingly acquiesced in Page’s alleged unconstitutional
conduct.
The Court will therefore DENY the motion to dismiss the supervisory liability claim
against Sergeant Lamielle as to the malicious prosecution and failure to investigate claims.
Plaintiff Newton’s supervisory claims against Chief Jeffrey DeMuth and Commander
John Cole, however, fail. Plaintiff makes only conclusory allegations that they had any
knowledge of Page’s actions. As a result, his supervisory claim against them fails.
As for Plaintiff Newton’s Monell claim against the City of Shaker Heights for malicious
prosecution, failure to investigate, and failure to train, he has also failed to state a claim. To
succeed in mounting a § 1983 claim against a municipality, he must show that the “execution
of [the municipality’s] policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy,” caused his constitutional
Id. at ¶¶ 225, 227–28.
Id. at ¶ 228.
122
Id. at ¶¶ 226, 229.
120
121
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injury.123
Here, most of Plaintiff Newton’s policy allegations deal with the failure to turn over
exculpatory evidence, not to the pursuit of criminal prosecutions without probable cause or
the failure to conduct adequate investigations. As to malicious prosecution and the failure
to investigate, Plaintiff has, at most, pointed to one or two incidents—including Page’s
investigation of Jacquelyn Ellis’s accusations—where one or more supervisors failed to
adequately discipline officers who did not adequately document their investigations or
remain sufficiently objective. That is not enough to establish an official policy sufficient to
support a Monell claim.124
The Court will therefore dismiss the supervisory liability claims against Chief DeMuth
and Commander Cole, as well as the remaining Monell claims against the City of Shaker
Heights.
F. Defamation and False Light Claims Against the Ellis Defendants
The Ellis Defendants argue that Plaintiff Newton’s defamation and false light claims
against them are time barred and that, in any event, they are entitled to judicial immunity.125
1. Statute of Limitations.
Ohio law establishes a one year statute of limitations for libel and slander claims.126
And, despite Plaintiff Newton’s arguments to the contrary, 127 that time limit also applies to
false light claims, at least where they “involv[e] allegations that would also support a
Monell v. Dep’t. of Soc. Servs. of the City of N.Y., 436 U.S. 658, 694 (1978).
See Graham, 358 F.3d at 377 (“The fact that individual actors ‘may occasionally make mistakes . . . says little
about the . . . legal basis for holding [a municipality] liable.’” (quoting City of Canton v. Harris, 489 U.S. 378, 385 (1989))
123
124
(omissions in original)).
125
Doc. 39 at 9–17.
126
O.R.C. § 2305.11(A).
127
Doc. 45 at 11–12.
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defamation claim.”128 Otherwise, the one year statute of limitations on defamation claims
would be meaningless.129
It is true that, in Linetsky v. City of Solon, this Court previously held that false light
claims were not governed by the one-year limitation period in O.R.C. § 2305.11(A), but
were instead governed by a longer, four-year statute of limitations.130 And the Ohio 8th
District Court of Appeals apparently reached a similar conclusion in T.S. v. Plain Dealer.131
But, though it strives for consistency, this Court is not bound by its earlier decisions.132
Moreover, where the state supreme court hasn’t ruled on a question, it must reassess its
interpretations of state law in light of new state courts of appeals decisions, with an eye to
predicting how the state supreme court would rule.133
Upon further reflection, the Court is persuaded by the well-reasoned opinion of the
10th District Court of Appeals in Stainbrook v. Ohio Secretary of State, especially when it is
compared to the conclusory analysis in Plain Dealer and a footnote of the Linetsky decision.
The Court is further persuaded by the fact that its sister court has reached a similar
conclusion.134
Plaintiffs’ complaint was filed in state court on November 3, 2017.135 Thus, only
defamation claims that accrued after November 3, 2016, can be considered timely.136 A
128
129
Stainbrook v. Ohio Sec’y. of State, 88 N.E.3d 1257, 1265 (Ohio Ct. App. 2017).
Id.
130
No. 1:16-cv-52, 2016 WL 6893276, at *15 n.159 (N.D. Ohio Nov. 11, 2016).
954 N.E.2d 213, 214 (Ohio Ct. App. 2011).
132
Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (“A decision of a federal district court judge is not binding
precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different
case.”(quoting 18 James W. Moore et al., Moore’s Fed. Practice § 134.02(1)(D) (3d ed. 2011))).
133
See Mich. First Credit Union v. Cumis Ins. Soc’y, Inc., 641 F.3d 240, 252 (6th Cir. 2011) (“[A]n intermediate
appellate court's judgment that announces a rule of law is a datum for ascertaining state law which is not to be disregarded
by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise.”
(quoting FL Aerospace v. Aetna Cas. & Sur. Co., 897 F.2d 214, 218–19 (6th Cir. 1990))(alteration in original)).
134
Murray v. Moyers, No. 2:14-cv-2334, 2015 WL 5626509 (S.D. Ohio Sept. 24, 2015).
135
Doc. 1-1 at 3.
136
See O.R.C. § 2305.11(A).
131
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defamation or false light claim accrues on the date of the allegedly false statement’s first
publication.137 The Court therefore finds that any defamation or false light claim premised
on statements made by the Ellis Defendants before November 3, 2016, is untimely and
GRANTS the motion for judgment on the pleadings as to those claims.
2. Judicial Immunity
Defendant points to only two statements that were made after November 3, 2016: (1)
the demand letter sent to the Laurel School; and (2) Ellis’s statements to a prosecutor and
Detective Page in a meeting on March 29, 2017.138 The Ellis Defendants argue that they are
protected from liability as to those statements by judicial proceedings immunity.139
In Ohio, “[i]t is a well-established rule that judges, counsel, parties, and witnesses are
absolutely immune from civil suits for defamatory remarks made during and relevant to
judicial proceedings.”140 That privilege “extends to every step in the proceeding[s], from
beginning to end,” including “an informal complaint to a prosecuting attorney.”141 Indeed,
as long as “the allegedly defamatory statement bears some reasonable relation to the judicial
proceeding in which it appears,” absolute immunity applies.142
Ellis’s statements at the March 29 meeting and any statements in the demand letter
bear a reasonable relation to judicial proceedings. 143 The presence of Defendant Page at the
meeting with the prosecutor does not dispel immunity; indeed, the investigating officer’s
137
See Boyd v. Bressler, 18 F. App’x. 360, 366 (6th Cir. 2001).
138
Doc. 45 at 10–11.
Doc. 39 at 13–17.
139
140
141
Willitzer v. McCloud, 453 N.E.2d 693, 695 (Ohio 1983).
MJ. DiCorpo, Inc. v. Sweeney, 634 N.E.2d 203, 209–10 (Ohio 1994) (quoting Prosser & Keeton, Law of Torts
§ 144 (5th ed. 1984)).
142
143
Surace v. Wuliger, 495 N.E.2d 939, at ¶ 1 of the syllabus (Ohio 1986).
See Theiss v. Scherer¸ 396 F.2d 646, 648–49 (6th Cir. 1968) (holding that letter sent by attorney regarding a
trust which accused the opposing party of engaging in a “little piece of blackmail” was related to a judicial proceeding and
thus could not be the basis of a libel suit).
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presence at a meeting with the prosecutor is to be expected. Nor does Plaintiff Newton’s
allegation that this meeting was an informal meeting144 change the Court’s analysis: informal
or not, it still seems to have been related to the criminal case. And sending a demand letter
is a routine and expected opening litigation move.
Moreover, to the extent that there are other post November 3, 2016, statements
alleged in the complaint, they are plainly judicial statements. For instance, Jacquelyn Ellis’s
trial testimony would certainly fall within the confines of judicial immunity. While Plaintiffs
allege that Ellis “continued to make defamatory statements” to medical professionals “from
October 2014 to the present,”145 that allegation is far too conclusory to allow the defamation
or false light claims to survive the motion to dismiss.
The Court GRANTS the Ellis Defendants’ motion to dismiss Newton’s defamation
claims.
G. Remaining Claims Against the Ellis Defendants.
Plaintiff Newton’s civil conspiracy, malicious prosecution, abuse of process, and
intentional infliction of emotional distress (IIED) claims against the Ellis Defendants also fail.
These claims are variations on his defamation claims. As a result, the same statute of
limitations and judicial immunity problems that doom his defamation claims defeat his other
tort claims.146 The Court therefore GRANTS the Ellis Defendants’ motion to dismiss those
144
Doc. 15 at ¶ 121–23. The complaint emphasizes that the meeting “was not part of a judicial proceeding,” but
does not allege that it was unrelated to a judicial proceeding. Id. at ¶ 121. As the analysis above makes clear, statements
do not have to have been made during a formal proceeding to be protected by judicial proceedings immunity.
145
Id. at ¶ 44.
146
Montgomery v. Ohio State Univ., No. 11AP-1024, 2012-Ohio-5489, ¶¶ 13–17, 2012 WL 5949038, at *3–4
(Ohio Ct. App. 2012) (“Despite his attempt to recast his defamation claim in terms of negligence, the fact remains that
appellant sought recovery for the alleged publication of false information to a third party. Therefore, we find that the trial
court was correct in construing appellant’s first cause of action as a claim for defamation” (footnote omitted)); see also
Minger v. Green, 239 F.3d 793, 799 (6th Cir. 2001) (“Federal Rule of Civil Procedure 8(f) states that ‘All pleadings shall be
construed so as to do justice.’ This rule directs courts to construe pleadings liberally within the standards of the notice-
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claims.
H. Remaining Claims Against Defendant Page and the Shaker Heights Defendants.
Defendant Page does not move to completely dismiss Plaintiff Newton’s intentional
infliction of emotional distress claim against her. Instead, she seeks to dismiss that claim
only insofar as it is simply a recasting of his malicious prosecution and Brady claims.147 The
Court will GRANT that motion insofar as the intentional infliction of emotional distress claim
is a recasting of his Brady claim, but DENY the motion to the extent that the intentional
infliction of emotional distress claim is distinct from the Brady claim..
The Court will also dismiss his civil conspiracy claims against Page and the Shaker
Heights Defendants to the extent that they are attempts to recast his Brady claims.
The Shaker Heights Defendants argue that the civil conspiracy claim cannot survive
against them because it requires that an underlying state tort law claim also be alleged against
them.148 But a civil conspiracy claim can be based on a malicious prosecution claim,149 and
the Court sees no reason why the fact that Newton’s claim is a federal rather than state law
malicious prosecution claim should make any difference. Thus, because the malicious
prosecution claims against Page, Siegel, and Lamielle survive, the civil conspiracy claims
against those Defendants do as well. The conspiracy claims against the other Shaker Heights
Defendants do not, because all of the other claims against those defendants have been
dismissed.
pleading regime mandated by the Federal Rule of Civil Procedure. . . . Therefore, the Rules require that we not rely solely
on labels in a complaint, but that we probe deeper and examine the substance of the complaint.”).
147
Doc. 40 at 11–12.
148
Doc. 27 at 21–22.
149
Rachlow v. Dee, No. 18927, 2002 WL 91288, at *3–5 (Ohio Ct. App. 2002).
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Moreover, although the Shaker Heights Defendants contend that Plaintiff Newton
failed to plead a conspiracy with sufficient particularity, there is enough in the complaint to
suggest an agreement, whether tacit or explicit, between at least Detective Page, Detective
Siegel, and Sergeant Lamielle, or some combination thereof.
The Court therefore GRANTS the motions to dismiss or for judgment on the pleadings
as to the IIED claims against Page and the civil conspiracy claims against her and the Shaker
Heights Defendants only insofar as they are duplicative of the Brady claim or are against
Chief DeMuth, Commander Cole, or the City of Shaker Heights.
I. Claims Against Detective Siegel
The Court does not address the claims asserted against Defendant Siegel, because
Siegel has not yet answered the amended complaint or moved to dismiss the claims against
him.
J. Loss of Consortium Claim
Plaintiff Rideout’s loss of consortium claim is wholly derivative of Plaintiff Newton’s
constitutional and state law claims.150 The Court therefore GRANTS the motions to dismiss
or for judgment on the pleadings on the loss of consortium claim in so far as it pertains to
the other claims dismissed in this order.
IV. CONCLUSION
For all of those reasons, the Court GRANTS the Ellis Defendants’ motion for judgment
on the pleadings and the Shaker Heights Defendants’ motion to dismiss as to Chief DeMuth,
Commander Cole, and the City of Shaker Heights. All of the Plaintiffs’ claims against those
150
Loomis v. Medtronic, Inc., No. 1:04-cv-499, 2005 WL 1828763, at *6 (N.D. Ohio Aug. 1, 2005) (citing Gearing
v. Nationwide Ins. Co., 665 N.E.2d 1115, 1120 (Ohio 1996)).
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defendants are therefore DISMISSED WITH PREJUDICE.
The Court will also GRANT the Shaker Heights Defendants’ motion to dismiss the
Brady claims against Defendant Lamielle, but DENIES the motion to dismiss the supervisory
liability and civil conspiracy claims against him except to the extent they are premised on
the Brady claim.
The Court also GRANTS Page’s motion for judgment on the pleadings as to the Brady
claim.
The other claims against her—namely the malicious prosecution, failure to
investigate, IIED, civil conspiracy, and loss of consortium claims to the extent they are distinct
from the malicious prosecution or Brady claims—remain pending.
The case will proceed as scheduled on the Plaintiffs’ claims against Defendant Siegel,
the surviving claims against Defendant Page, and the Ellis Defendants’ counterclaims.151
IT IS SO ORDERED.
Dated: April 27, 2018
s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
151
The Court has also reviewed Plaintiffs’ request for a status conference. Doc. 73. However, the Court does not
see how the 8th District’s opinion affirming the dismissal of the criminal charges against Plaintiff Newton could change its
ruling on these motions to dismiss or for judgment on the pleadings. Nor does the Court see any need for a status conference
at this time. For those reasons, the motion for a status conference is DENIED.
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