Smith et al v. Seneca County Commissioners et al

Filing 77

Memorandum Opinion and Order: Defendants' motion for summary judgment is granted. re 63 . Judge Jeffrey J. Helmick on 3/11/2015. (S,AL)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Thomas Smith, et al.,

Case No. 3:13 cv 1052
Plaintiffs

v.

MEMORANDUM OPINION
AND ORDER

Seneca County Commissioners, et al.,
Defendants
This matter comes before me on the Defendants’ motion for summary judgment (Doc. No.
63), Plaintiffs’ opposition (Doc. No. 68), and Defendants’ reply (Doc. No. 70). This Court has
jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons stated below, I find the Defendants’
motion well taken.
BACKGROUND
In 2011, Detective Don Joseph of the Seneca County Sheriff’s Department was investigating
suspected drug dealers. Joseph was part of the drug task force known as the Seneca County Metrich
Unit. This unit worked with law enforcement agencies to assist with drug, gang, and career criminal
task forces. Joseph worked with a particular confidential informant and his experience with this
informant resulted in at least ten convictions as a result of the informant’s assistance.
The informant advised Joseph that he met a “Tommy Smith” during a party at the Willow
Creek Apartments. The informant advised Joseph that Tommy Smith had some prescription drugs
for sale. Joseph and Smith set up a controlled drug purchase to occur on May 27, 2011, at the

Willow Creek Apartments. This location was chosen because Tommy Smith told the informant he
was staying there.
As part of the controlled purchase, Joseph set up visual surveillance a block away. The
informant was outfitted with a video and audio recording device as well as a transmitter so that
Joseph could monitor the event as it occurred. The informant met with the suspect, Tommy Smith,
and purchased the pills as planned. As Joseph observed the events from a block away, he could see
the color of the suspect’s vehicle but was unable to tell the make or model of the vehicle and could
not read the license plate number. After the purchase, the informant met with Joseph, returned the
drugs purchased and briefed Joseph on the events.
At this point, Joseph “still had learned nothing to dissuade [his] belief that [h]e w[as]
investigating a man named Tommy Smith, so [he] continued to search for him using various law
enforcement techniques and [his] training as a law enforcement officer.” (Joseph Decl. at ¶ 13).
According to the information provided by the informant, Joseph knew Tommy Smith was
“staying” at the Willow Creek Apartments as opposed to living there. (Id. at ¶ 9). Joseph also knew
that Smith told the informant he was from “out of the area.” (Id. at ¶ 10). In addition, Joseph also
had information about his skin color, approximate weight and height, and that the suspect had
tattoos. (Id. at ¶14). The video tape provided little help in identifying the suspect. (Id.)
In attempting to locate Tommy Smith, Joseph utilized the Law Enforcement Automated
Data System (“LEADS”) and the Ohio Law Enforcement Gateway (“OHLEG”) to search for the
suspect. Of all the potential individuals, based upon characteristics and location, Plaintiff Thomas
Smith was the best match.
Based upon the information from the informant and Joseph’s searches as identifying
Thomas Smith as the suspect, this evidence was presented to the grand jury. On April 19, 2012,
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Plaintiff Thomas Smith was in indicted for drug trafficking. An arrest warrant issued and on May
10, 2012, the Fostoria Police Department arrested Thomas Smith. The Plaintiff was arrested at his
home with his children present. Plaintiff’s wife, who was at work, was contacted and she arrived to
care for the children before Plaintiff was taken to the jail. Plaintiff spent a total of 32 hours in jail
and was released after paying $2,000 in bail.
When Plaintiff’s defense counsel received discovery from the prosecutor, there was a
meeting between Plaintiff, his defense attorney, and Joseph. At the meeting Plaintiff’s defense
counsel provided work records to confirm Plaintiff was at his job at the time the controlled buy
occurred as well as pointing out that Plaintiff’s tattoos were different than those in the video.
Joseph checked Plaintiff’s tattoos for alteration and found none. (Id. at ¶ 22).
Joseph explained his LEADS search to Plaintiff and indicated Plaintiff best fit the
description of the suspect as opposed to the other individuals identified through this search
mechanism. After reviewing all of the information provided by defense counsel, Joseph contacted
the prosecutor the same day to recommend dismissal of the charges against Plaintiff. (Id. at ¶ 24).
The charges were dismissed and any criminal record was sealed. (Id. at ¶ 24).
Plaintiff incurred attorney’s fees of $1,850.00 before the charges were ultimately dismissed.
On May 8, 2013, Plaintiffs filed this civil rights action against Joseph, the Seneca County
Commissioners and the Seneca County Sheriff. 1 As against Defendant Joseph, Plaintiffs allege
violations of 42 U.S.C. § 1983 under the Fourth and Fourteenth Amendments for a lack of probable
cause to arrest. They also assert claims of municipal liability and failure to supervise as against the
Seneca County Commissioners and the Seneca County Sheriff. Also alleged are claims for malicious
prosecution and a loss of consortium.
1 The original complaint (Doc. No. 1) alleged nine causes of action and was reduced to eight causes of action in the First
Amended Complaint (Doc. No. 43). The claims in the Second Amended Complaint (Doc. No. 75) were further reduced
to four causes of action as stated herein.
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I now turn to the dispositive motion, response, and reply.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where “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.” FED. R. CIV. P.
56(a). The moving party bears the initial responsibility of “informing the district court of the basis
for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The movant may meet this burden by demonstrating the absence of evidence
supporting one or more essential elements of the non-movant’s claim. Id. at 323-25. Once the
movant meets this burden, the opposing party “must set forth specific facts showing that there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV.
P. 56(e)).
Once the burden of production has so shifted, the party opposing summary judgment
cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient “simply
[to] show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) “requires the nonmoving party to go
beyond the pleadings” and present some type of evidentiary material in support of its position.
Celotex, 477 U.S. at 324; see also Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000).
Summary judgment must be entered “against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex, 477 U.S. at 322.
“In considering a motion for summary judgment, the Court must view the facts and draw all
reasonable inferences therefrom in a light most favorable to the nonmoving party.” Williams
4

v.

Belknap, 154 F. Supp. 2d 1069, 1071 (E.D. Mich. 2001) (citing 60 Ivy Street Corp. v. Alexander, 822
F.2d 1432, 1435 (6th Cir. 1987)). However, “‘at the summary judgment stage the judge’s function is
not himself to weigh the evidence and determine the truth of the matter,’” Wiley v. U.S., 20 F.3d
222, 227 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 249); therefore, “[t]he Court is not required
or permitted . . . to judge the evidence or make findings of fact.” Williams, 154 F. Supp. 2d at 1071.
The purpose of summary judgment “is not to resolve factual issues, but to determine if there are
genuine issues of fact to be tried.” Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 130 F.
Supp. 2d 928, 930 (S.D. Ohio 1999). Ultimately, this Court must determine “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.” Anderson, 477 U.S. at 251-52; see also Atchley v. RK Co.,
224 F.3d 537, 539 (6th Cir. 2000).
DISCUSSION
Positions of the Parties
The Defendants contend there was probable cause for the arrest and that this situation is a
case of mistaken identity which does not render it subject to a civil rights violation. Plaintiffs
vigorously oppose the Defendants’ position. As the issue of probable cause is central to resolution
of this case, the discussion focuses on that issue. To that end, I also consider the doctrine of
qualified immunity, properly raised by the Defendants as it is an affirmative defense to § 1983
claims.
Qualified Immunity
Qualified immunity shields “government officials performing discretionary functions… from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
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800, 818 (1982). Qualified immunity provides a broad range of protection, as it protects “all but the
plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341
(1986). “Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright
lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992), cert. denied, 506 U.S. 1080 (1993).
Qualified immunity balances two important interests—the need to
hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.
The protection applies regardless of whether the government
official’s error is “a mistake of law, a mistake of fact, or a mistake
based on mixed questions of law and fact.” Groh v. Ramirez, 540 U.S.
551, 567, 124 S.Ct. 1247, 157 L.Ed.2d 1068 (2004) (Kennedy, J.
dissenting) (quoting Butz v. Economou, 438 U.S. 478, 507, 98 S.Ct.
2894, 57 L.Ed.2d 895 (1978), for the proposition qualified immunity
covers “mere mistakes in judgment, whether the mistake is one of
fact or one of law.”)
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Like absolute immunity, qualified immunity “is an immunity from suit rather than a mere
defense to liability . . . [and] is effectively lost if a case is erroneously permitted to go to trial.”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original).
The analysis employed by the Sixth Circuit in determining qualified immunity focuses on
whether a constitutional right was violated and whether that right was clearly established at the time
such that a reasonable official would have understood that his behavior violated that right. Occupy
Nashville v. Haslam, 769 F.3d 434, 442 (6th Cir. 2014), citing Saucier v. Katz, 533 U.S. 194 (2001). In
Pearson, the Supreme Court approved disregarding the mandatory analytical sequence adopted in
Saucier and allowed district courts to “exercise their sound discretion in deciding which of the two
prongs in the qualified immunity analysis should be addressed first in light of the circumstances in
the particular case at hand.” 555 U.S. at 236.

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Once the defense of qualified immunity is raised, the burden shifts to the plaintiff to prove
defendants are not entitled to qualified immunity. Rodriquez v. Passinault, 637 F.3d 675, 689 (6th Cir.
2011).
Probable Cause
In this instance, the first cause of action frames the issue for discussion:
41. The Defendant Detective Sgt. Don Joseph influenced, or participated in
the decision to prosecute the Plaintiff Thomas Smith although there was a lack of
probable cause for the criminal prosecution. In doing so, Defendant Joseph violated
Plaintiff Thomas Smith’s civil rights.
42. Defendants unlawfully searched and seized the Plaintiff Thomas Smith.
43. This search and seizure was the direct result of Defendants’ Joseph
influence and or participation in the decision to prosecute the Plaintiff Joseph Smith
although there was a lack of probable cause for the criminal prosecution.
...
47. The Plaintiffs are seeking actual, compensatory and punitive damages for
violation of their civil rights, for malicious prosecution, unlawful search and seizure,
out of pocket expenses incurred to defend against the malicious prosecution, bail
money not refunded, lost wages, humiliation, and loss of consortium.

(Second Amended Compl., Doc. No. 75).
The issue of whether a constitutional right was violated under the Fourth Amendment
requires me to address the issue of whether probable cause existed at the time of Plaintiff’s arrest.
See Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir. 2014) (“It is axiomatic that both to establish a prima
facie case for liability and to overcome a qualified immunity defense, a plaintiff must demonstrate
that his or her own rights were violated.”) (emphasis in original).
An arrest without probable cause violates the Fourth Amendment. As noted by the Sixth
Circuit “[t]he tort of malicious prosecution. . . remedies detention accompanied not by absence of
legal process but by wrongful institution of legal process.” Id. at 616, citing Sykes v. Anderson, 625 F.3d
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294, 308 (6th Cir. 2010). (Emphasis in original). It is well settled in this Circuit that “ ‘the finding of
an indictment, fair upon its face, by a properly constituted grand jury, conclusively determines the
existence of probable cause for the purpose of holding the accused to answer.’ ” Barnes v. Wright,
449 F.3d 709, 716 (6th Cir. 2006) quoting Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002). The
exception to this rule occurs “where the indictment was obtained wrongfully by defendant police
officers who knowingly presented false testimony to the grand jury.” Robertson, 753 F.3d at 616.
No such evidence exists here. In a very similar case, Wilson v. Marion City Police Dept., 2011
WL 4699144 (N.D. Ohio 2011), an informant provided the name of Christa Wilson in a controlled
drug buy. The detective working with the informant believed this was the name given to him by the
informant while the name of the suspect was actually Kristen Wilson. The detective entered the
name of Christa Wilson and the search returned the plaintiff’s photo and her physical description
which met the description given by the informant. The detective had access to the paperwork
completed by the informant following the drug buy and it listed the name of the supplier as Kristen
as opposed to Plaintiff’s name of Christa. The plaintiff was arrested and held approximately 26
hours before the error was discovered. In granting summary judgment, Magistrate Judge Knepp
determined probable cause to exist as it was pursuant to an indictment and there was no evidence to
contend the indictment was the subject of foul play. Id. at *3-4.
Here, Plaintiffs challenge the sufficiency of Joseph’s investigation. For example, Joseph had
access to “Smith’s” cell phone number, from the informant, but he did not get the phone number.
Joseph also failed to ask the informant to supply the make, model, or license plate of the vehicle the
suspect was driving at the time of the drug buy. While Joseph knew from his own surveillance of
the transaction that the suspect’s car was silver, he did not go to the Willow Creek Apartments to
find the car and get the license plate number. Joseph also did not interview anyone else in his
attempt to identify “Tommy Smith,” including the confidential informant, after Plaintiff’s photo was
obtained from the LEADS search.
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While Joseph could have taken extra steps to ensure he had the correct individual, such
thoroughness, while aspirational, is not required to be compliant with the Constitution. The Sixth
Circuit in Bakos v. City of Olmstead Falls, 73 Fed. Appx. 152, 158 (6th Cir. 2003), determined that
challenged deficiencies in the investigation prior to grand jury proceedings were insufficient to
overcome the presumption that probable cause existed as a result of the indictment. See also Martin
v. Maurer, 581 Fed. Appx. 509, 511-12 (6th Cir. 2014) (investigation which failed to utilize a photo
array and interview plaintiff’s alibi witnesses or determine the accuracy of statements did not violate
constitutional rights as probable cause was established by the indictment); Fettes v. Hendershot, 375
Fed. Appx. 528, 532 (6th Cir. 2010) (in executing a valid arrest warrant, where police mistakenly
identified the person to be arrested, the arrest did not violate the Constitution) citing Hill v.
California, 401 U.S. 797, 802 (1971); McCutchen v. Tipton County, 430 F.Supp.2d 741, 745 n.4 (W.D.
Tenn. 2006) (listing cases from the circuit in which courts refused to find constitutional violations
where an individual was mistakenly arrested subject to a warrant issued for someone with the same
name).
As there is no evidence to question the propriety of the grand jury determination, I find
probable cause existed for the arrest. In the absence of a constitutional violation, I find Defendant
Joseph is entitled to qualified immunity and he is entitled to summary judgment as to the first cause
of action.
Municipal Liability
Plaintiffs’ second cause of action asserts municipal liability for failure to supervise and train
its police officers. As recently noted by the Sixth Circuit, “the deprivation of a constitutional right is
a prerequisite to municipal liability under § 1983.” Pollard v. City of Columbus, __F.3d__, 2015 WL
925887 (6th Cir. March 5, 2015). (Citation omitted). Since the Plaintiffs are unable to establish a

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constitutional violation, Defendants Seneca County Commissioners and the Seneca County Sheriff
are also entitled to judgment as a matter of law.
State Law Claims
Finally, Plaintiffs’ remaining state law claims, loss of consortium and malicious prosecution,
must also be dismissed as a matter of law as I have determined Plaintiffs did not establish the
violation of a constitutional right.
CONCLUSION
For the reasons stated above, Defendants’ motion for summary judgment (Doc. No. 63) is
granted.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge

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