O'Donnell et al v. Yezzo et al

Filing 31

Order: Defendants G. Michelle Yezzo, Daniel Cappy, and John Lenhart's motion to dismiss (Doc. 13 ) be, and the same hereby is, granted. Defendants Charles Michael White and City of Norwalk's motion for judgment on thepleadings (Doc. 20 ) be, and the same hereby is, granted in part and denied in part. Judge James G. Carr on 11/26/18.(C,D)

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

Debra O’Donnell, et al.,

Case No. 3:17CV2657

Plaintiffs
v.

ORDER

G. Michelle Yezzo, et al.,
Defendants

This is a civil rights case.
Plaintiff Debra O’Donnell brings representative due process claims, on behalf of her late
father, James Parsons under 42 U.S.C. § 1983; she also brings related state law claims.
O’Donnell’s claims arise out of her father’s conviction, which an Ohio state court vacated, for
murdering his wife.
O’Donnell alleges that, during the murder case, defendants 1) failed to disclose
exculpatory evidence and falsified forensic evidence; and 2) maliciously prosecuted her father.
Defendants include the City of Norwalk, Ohio, plus four individual defendants: G. Michelle
Yezzo, a forensic scientist at the Ohio Bureau of Criminal Investigation (BCI); Daniel Cappy,
BCI Laboratory Director; John Lenhart, BCI Superintendent; (the State defendants) and Michael
White, a Norwalk Police Detective (the City defendants).

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Additionally, O’Donnell (who administers her father’s estate) and her sister, Sherry
Parsons, bring a personal negligent infliction of emotional distress claim against White and a
personal loss of consortium claim against White and the City.
Now pending are the State defendants’ motion to dismiss (Doc. 13) and the City
defendants’ motion for judgment on the pleadings (Doc. 20).
For the reasons that follow, I grant the State Defendants’ motion, and I deny the City
Defendants’ motion in part and grant it in part.
Background
James Parsons served twenty-three years in prison after a Huron County, Ohio jury
convicted him of murdering his wife, plaintiffs’ mother, Barbara Parsons. (Doc. 1 at 10, ¶¶ 5051). On completing his sentence, he moved for post-conviction relief, and, on April 21, 2016, the
trial court vacated his conviction and ordered a new trial. (Id. at 13, ¶ 64).
The events leading to the conviction began on On February 12, 1981, when plaintiff
Sherry Parsons found her mother in her bedroom, beaten to death. (Id. at 5, ¶¶ 19-20). A police
investigation revealed that a half-inch Craftsman breaker bar was the murder weapon. The
Norwalk Police Department recovered two such breaker bars, but forensic testing linked neither
breaker bar to the murder. (Id. at 6-7, ¶ 26). Despite a year-long investigation, the Department
filed no charges. (Id. at 7, ¶ 27).
More than ten years later, defendant Detective White reopened the case. White handled
the physical evidence from the investigation, including sheets from the bedroom, Mrs. Parsons’s
nightgown, and the two breaker bars. (Id. at ¶¶ 28, 30).
White submitted this evidence, choosing one of the two breaker bars, to four different
forensic investigative agencies, including BCI. (Id. at 7-8, ¶¶ 31-33). The breaker bar White

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submitted apparently was not the murder weapon, and plaintiffs allege White knew as much. (Id.
at 8-9, ¶¶ 34-35, 43-44). The investigative agencies reached inconclusive results. (Id. at 7-8, ¶¶
31-32).
White next resubmitted the evidence to BCI, thereby engaging Yezzo’s services. Yezzo’s
findings connected the breaker bar to the imprints on the sheet. (Id. at 8, ¶ 33). She claimed that
she observed on the sheet mirror images of the letters “N” and “S” from the breaker bar’s handle
and unique markings from the breaker bar’s end. (Id. at ¶ 36). Yezzo testified about her findings
at grand jury proceedings and the murder trial. (Id. at 9-10, ¶¶ 45, 48-49).
O’Donnell and Parsons allege that Yezzo’s investigation was flawed. First, they allege
that White knowingly turned over the wrong breaker bar for testing. (Id. at 9, ¶ 43). Second, they
allege that Yezzo used unreliable testing methods skewed her results to please Detective White.
Moreover, Yezzo’s personnel file at BCI indicated that she was known to “stretch the truth to
satisfy a department” and that she showed signs of mental instability. (Id. at 2, ¶ 1).
The prosecution did not turn over Yezzo’s personnel file to the accused father’s attorney
before or during the murder trial. (Id. at 11, ¶ 52). On the father’s post-trial motion to vacate his
conviction, the state court judge found that “this evidence could have been very useful to the
defense in its cross-examination of Ms. Yezzo.” 1 Citing Yezzo’s unreliability, the judge vacated
the conviction. (See Attachment A).
Standard of Review

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I take judicial notice of the state court opinion on the motion for new trial and the Huron
County Common Pleas Court docket in the father’s case. See Huff v. FirstEnergy Corp., 972 F.
Supp. 2d 1018, 1028-29 (N.D. Ohio) (Lioi, J.) (“Court rulings . . . are matters of public record,
and matters of which a court may properly take judicial notice). This does not convert
defendants’ motions into motions for summary judgment. Id. The state court opinion is attached
hereto as Attachment A, and the Huron County Common Pleas Court docket is attached hereto as
Attachment B.
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Federal Rule of Civil Procedure 12(c) provides that, “[a]fter the pleadings are closed but
within such time as not to delay the trial, any party may move for judgment on the pleadings.”
Both parties agree that the City Defendants’ Rule 12(c) motion is premature, given that
the pleadings are not closed because the remaining defendants have not filed an answer. Horen v.
Bd. of Educ. of Toledo Sch. Dist., 594 F. Supp. 2d 833, 840 (N.D. Ohio 2009) (Carr, J.). They
also agree, as do I, that I can and should treat the 12(c) motion as a motion to dismiss under Fed.
R. Civ. P. 12(b)(6). (Doc. 20 at 3; Doc. 23 at 4); see also Horen, supra, 594 F. Supp. 2d at 840.
Therefore, I apply the standard of review applicable to motions to dismiss under Fed. R. Civ. P.
12(b)(6) to both of the pending motions.
To survive a motion to dismiss under Rule 12(b)(6), the complaint “must contain
sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. At this stage, I must “draw all reasonable inferences in favor of
[plaintiffs].” Courtright v. City of Battle Creek, 839 F.3d 513, 520 (6th Cir. 2016).
Discussion
A. Constitutional Claims
O’Donnell claims that defendants violated her father’s Fourteenth Amendment due
process rights in two ways: 1) by withholding and failing to investigate exculpatory evidence and
falsifying evidence (the Brady claims) and 2) by maliciously prosecuting the accused father’s
criminal case.
1. O’Donnell Has Standing in This Case

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Article III, § 2 of the Constitution authorizes the federal courts to hear only “Cases” and
“Controversies.”
“Standing to sue is a doctrine rooted in the traditional understanding of a case or
controversy.” Spokeo, Inc. v. Robins, --- U.S. ---, ---, 136 S.Ct. 1540, 1547 (2016). The doctrine
“seeks to ensure the plaintiff has a personal stake in the outcome of the controversy.” Sumpter v.
Wayne Cnty., 868 F.3d 473, 490 (6th Cir. 2017). The “irreducible constitutional minimum of
standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that
is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed
by a favorable judicial decision.” Spokeo, supra, --- U.S. at ---, 136 S.Ct. at 1547 (internal
citations and quotation marks omitted).
The parties dispute whether O’Donnell has standing to bring the § 1983 claims on behalf
of her late father.2
Defendants argue that the § 1983 claims abated of her father. They further argue that
O’Donnell must allege a physical injury for Decedent’s claims to survive. O’Donnell, citing the
Sixth Circuit’s recent decision in Crabbs v. Scott, 880 F.3d 292 (2018) disputes that contention.
I agree with O’Donnell that the claims survived her father’s death.
To determine whether § 1983 claims did so, I must “first look to federal law for an
applicable rule of decision.” Crabbs, supra, 880 F.3d at 294 (internal citation omitted). “If no
suitable federal rule exists,” I apply Ohio law “to the extent it is ‘not inconsistent with the
Constitution and the laws of the United States.’” Id. (quoting Robertson v. Wegmann, 436 U.S.
584, 588-95 (1978)).

2

The State Defendants raise the standing issue in their motion (Doc. 13 at 7-12), and the City
Defendants incorporate their argument into their motion by reference (Doc. 20 at 3, 10).
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Federal law is silent regarding survival of § 1983 claims. Id. Therefore, Ohio’s
survivorship statute, O.R.C. § 2305.21, applies. Under that provision, “In addition to the causes
of action which survive at common law, causes of action for . . . injuries to the person or
property . . . also shall survive; and such actions may be brought notwithstanding the death of the
person entitled or liable thereto.”
The Sixth Circuit in Crabbs established that the § 1983 claims survived the father’s
death: “§ 1983 claims are best characterized as personal injury actions.” 880 F.3d at 295. The
court further held that the plaintiff need not allege a physical injury for the claim to survive. Id.
at 296 (noting the Ohio Supreme Court has not required such a showing). In reaching its holding,
the court in Crabbs encouraged a “straightforward and uniform characterization of § 1983
claims.” Id. at 295. Indeed, the court explained, “all § 1983 claims must be characterized the
same way.” Id. at 294.
Therefore, under Crabbs, the father’s § 1983 claims survived his death, and O’Donnell
need not show a physical injury to maintain those claims as his representative.3
2. Yezzo Is Not Absolutely Immune from
Suit for Her Non-Testimonial Acts
Yezzo argues that she enjoys absolutely immunity from O’Donnell’s § 1983 claims.
“[I]n litigation brought under 42 U.S.C. § 1983, all witnesses – police officers as well as
lay witnesses – are absolutely immune from civil liability based on their testimony in judicial
proceedings.” Briscoe v. LaHue, 460 U.S. 325, 328 (1983). But absolute immunity does not

3

Defendants hint in their motions that O’Donnell has not properly asserted the Brady claim
under § 1983. (See Doc. 13 at 13) (“Furthermore, the U.S. Supreme Court has stated that ‘Brady
claims have ranked within the traditional core of habeas corpus and outside the province of §
1983.’”) (internal citation omitted)). I decline to undertake an analysis of those claims’ propriety
under § 1983.
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insulate all of the witness’s actions. Accordingly, I must apply a “functional approach” to
determine whether absolute immunity protects Yezzo. See Rehberg v. Paulk, 566 U.S. 356, 363
(2012) (internal quotations omitted). Using this approach, I examine “the nature of the
function[s] performed” to “determin[e] whether [Yezzo’s] actions … fit within a common-law
tradition of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
Yezzo claims that she is absolutely immune from suit because “Plaintiff has used [her]
grand jury testimony and trial testimony as a basis for a federal malicious prosecution action.”
(Doc. 13 at 20). O’Donnell concedes that absolute immunity shields Yezzo from liability based
on her testimony. (Doc. 19 at 14). She argues, however, that Yezzo is not absolutely immune
from suit based on plaintiffs’ allegations that Yezzo falsified her findings and “produced the
falsified reports to the prosecutor.” (Id.).
I agree with O’Donnell.
Absolute immunity does not extend to a witness’s “non-testimonial” acts. See Spurlock v.
Satterfield, 167 F.3d 995, 1001-02 (6th Cir. 1999). Indeed, “absolute immunity does not relate
backwards to protect a defendant for any activities he allegedly engaged in prior to taking the
witness stand for his . . . testimony.” Id. at 1001 (internal quotations and citation omitted). And
“[t]he simple fact that acts may ultimately lead to witness testimony does not serve to cloak these
actions with absolute testimonial immunity.” Id.
The court in Spurlock held that the defendant enjoyed absolute immunity for testimony
only, and not for bribing a witness and threatening him with prosecution. It did not matter, the
court explained, that these non-testimonial acts ultimately led to the defendant’s trial testimony.
“What plaintiffs, in essence, allege here is the fabrication of probable cause, and . . ., the
fabrication of probable cause cannot be later immunized by false testimony.” Id. at 1004; cf.

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LeFever v. Ferguson, 567 Fed. App’x 426, 431 (6th Cir.) (holding absolute immunity protected
toxicologist because plaintiff’s claim centered on toxicologist’s findings about which he testified
with certainty but reached no conclusive finding in his pre-trial report).
Absolute immunity clearly protects Yezzo from claims based on her testimony. Spurlock,
supra, 167 F.3d at 1001. But O’Donnell also alleges that Yezzo “falsifi[ed] scientific test results”
(Doc. 1 at 18, ¶ 94) and that, “[b]ut for Defendant Yezzo’s fabricated evidence, probable cause to
arrest Mr. Parsons could not have been established.” (Id. at 20, ¶ 101). Yezzo’s testimony does
not provide her absolute immunity for these non-testimonial acts.
3.

The State Defendants Enjoy Qualified Immunity
From the § 1983 Claims

The State Defendants assert the qualified immunity defense.
Qualified immunity protects public officials from suit against private citizens. See
Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). Once a defendant “raise[s] the qualified
immunity defense, plaintiff bears the burden of showing that defendants are not entitled to
qualified immunity.” Id. (citing Reilly v. Vadlamudi, 680 F.3d 617, 623 (6th Cir. 2012)). “At the
pleading stage, this burden is carried by alleging facts plausibly making out a claim that the
defendant’s conduct violated a constitutional right that was clearly established at the time.” Id.
(citing Wesley v. Campbell, 779 F.3d 421, 428 (6th Cir. 2015)).4 “This inquiry, it is vital to note,
must be undertaken in light of the specific context of the case, not as a broad general
proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001) (internal quotations omitted)).

4

Generally, this inquiry proceeds in two steps: 1) whether plaintiff showed that defendants’
conduct violated a constitutional right” and 2) whether “the right was clearly established.”
Moldowan v. City of Warren, 578 F.3d 351, 375 (6th Cir. 2009) (quoting Saucier v. Katz, 533
U.S. 194, 201 (2001) (internal quotations omitted)). The Supreme Court has held that, “[w]hile
the sequence set forth [in Saucier] is often appropriate, it” is not “mandatory.” Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
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a.

Qualified Immunity: Yezzo

Defendants argue that Yezzo enjoys qualified immunity from O’Donnell’s § 1983 claims.
Moreover, defendants assert, the Complaint contains insufficient factual allegations “to prove
[Yezzo] is not entitled to qualified immunity.” (Doc. 13 at 22). Rather, they argue, the Complaint
“includes conclusory allegations couched as facts” to rebut the qualified immunity defense. (Id.).
O’Donnell responds that “Defendants’ argument . . . is actually an argument over whether
plaintiffs allegations are pled in such a way that they are sufficient to state a claim.” (Doc. 22 at
16). She goes on to argue that the Complaint pleads facts sufficient to overcome a motion to
dismiss.
O’Donnell mischaracterizes defendants’ argument. To overcome the qualified immunity
defense, she bears the burden to “[p]lead facts that, viewed in the light most favorable to [her],
make out a violation of a constitutional right [that is] clearly established in a particularized
sense.” Johnson, supra, 790 F.3d at 653 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
In determining whether she met this burden, I disregard “legal conclusion[s] couched as . . .
factual allegation[s].” D’Ambrosio v. Marino, 2013 WL 256312, *9 (N.D. Ohio) (Polster, J.).
I agree with defendants that O’Donnell has not met her burden to allege facts showing a
constitutional violation.
The Complaint alleges that: Yezzo analyzed “an overlay of the bedsheet on the breaker
bar” that, according to Yezzo, enabled her “to see on the bedsheet a mirror image of the ‘N’ and
‘S’ of the word Craftsman” and the breaker bar’s unique end (Doc. 1 at 8, ¶ 36); Yezzo did not
photograph her findings; Yezzo used unreliable procedures and “knew her claimed results could
not be verified” (id.); and Yezzo had a reputation for delivering law enforcement’s desired
results. (Id. at 9, ¶¶ 38-39).

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The allegations go on: “Yezzo knowingly prepared false forensic evidence.” (Id., ¶ 40).
Critically, this allegation does not identify what evidence – that is which, if any, of Yezzo’s
findings – Yezzo falsified. Contra Gregory v. City of Louisville, 444 F.3d 725, 744 (6th Cir.
2006) (denying summary judgment on qualified immunity issue on Brady fabrication claim
where evidence indicated that forensic scientist withheld two hairs police recovered in its
investigation when concluding in her report that five hairs so recovered linked plaintiff to the
crime). Rather, plaintiffs’ “assertion” that Yezzo knowingly prepared false evidence “is an
example of a legal conclusion couched as a factual allegation,” which I disregard. See
D’Ambrosio, supra, 2013 WL 256312 at *9 (disregarding allegation that defendant “‘concealed’
exculpatory evidence” as “a legal conclusion couched as a factual allegation”).
The Complaint contains no factual allegations identifying how Yezzo lied about the
evidence. Indeed, none of the allegations state what she falsified in her report. That Yezzo used
unreliable methods or failed to photograph her findings does not equate to fabrication. Nor does
the allegation that Yezzo “documented [her] falsely inculpatory findings” (Doc. 1 at 9, ¶ 41) in
her reports cure the Complaint’s insufficiency. These allegations fail to set forth sufficient facts
to overcome Yezzo’s qualified immunity defense.
b.

Qualified Immunity: Cappy and Lenhart

Defendants argue that Cappy and Lenhart enjoy qualified immunity from the § 1983
claims. First, they argue that neither Cappy nor Lenhart, as Yezzo’s supervisors, had Brady
obligations in the accused father’s case. Second, they argue that the failure-to-train-or-supervise
claim against them fails because they did not actively participate in Yezzo’s alleged misconduct.
(Doc. 13 at 26).

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In response, O’Donnell briefly argues that “Brady require[s] the disclosure of both
impeachment and exculpatory evidence,” and, accordingly Cappy and Lenhart are not immune.
(Doc. 22 at 17 (citing United States v. Bagley, 473 U.S. 667, 677 (1985)). O’Donnell apparently
purports to claim that Cappy’s and Lenhart’s failure to disclose Yezzo’s personnel file amounted
to a constitutional violation of the father’s clearly established rights. (See id. at 16 (referring to
the “exculpatory value” of Yezzo’s personnel file “as material that cast doubt on her credibility
and reliability, and which was withheld from the prosecution and defense by Defendants Cappy
and Lenhart”)). O’Donnell further argues that Cappy and Lenhart acted with deliberate
indifference to her father’s rights “in their training and supervision of Defendant Yezzo.” (Id. at
18).
i. Cappy and Lenhart Are Immune From O’Donnell’s Claims

That They Failed to Turn Over Yezzo’s Personnel File
O’Donnell provides no support for the conclusory argument that Cappy and Lenhart, as
Yezzo’s supervisors, owed Decedent a Brady obligation to turn over Yezzo’s personnel file.
Rather, O’Donnell baldly asserts that Cappy and Lenhart violated Decedent’s constitutional right
to disclosure of impeachment evidence. (See Doc. 22 at 16-17).
Cappy and Lenhart argue that they owed Decedent no Brady obligation because they had
no role on the prosecution team in his case. They further argue that Decedent’s conviction cut off
any obligation that they disclose information about Yezzo. (Doc. 13 at 26).
I find that O’Donnell has not articulated a clearly established right that Cappy and
Lenhart violated.
O’Donnell bears the burden to show, “in light of the specific context of the case” that
Cappy and Lenhart’s failure to turn over Yezzo’s personnel file violated a clearly established
right. Saucier, supra, 533 U.S. at 201. She claims that Decedent had a clearly established right to
11

“the disclosure of both impeachment and exculpatory evidence.” (Doc. 22 at 17 (citing Bagley,
supra, 473 U.S. at 677)).
The court in Bagley held that Brady applies with equal force to exculpatory and
impeachment evidence. 473 U.S. at 677. That case involved a criminal defendant’s claim that the
government should have introduced agreements between the government and its witnesses to
disclose certain information for pay. See id. O’Donnell’s complaint fails to explain how Bagley
applies to this context – that is, upper-level BCI administration’s failure to overturn an
investigator’s file as impeachment evidence. Rather, she generally submits that her father had a
due process right to impeachment evidence. O’Donnell falls short of her burden to articulate a
clearly established right in the context of this case. See Roell v. Hamilton Cty., 870 F.3d 471,
483-84 (6th Cir.) (finding plaintiff failed to overcome qualified immunity defense by citing Sixth
Circuit case involving different type of conduct than that alleged in her case).
ii. Cappy and Lenhart Are Immune From O’Donnell’s Claims

That They Failed to Supervise Yezzo
O’Donnell also alleges that Cappy and Lenhart violated Decedent’s Brady rights in their
capacity as Yezzo’s supervisors. Accordingly, she argues, Cappy and Lenhart are not immune
from the Brady claim to the extent they failed to supervise Yezzo.5
“[S]upervisor liability under § 1983 is appropriate when ‘the supervisor encouraged the
specific incident of misconduct or in some other way directly participated in it,’ or ‘at least
implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct.’’”
Leary v. Daeschneri, 349 F.3d 888, 903 (6th Cir. 2003) (quoting Bellamy v. Bradly, 729 F.2d

5

The parties’ briefs contemplate both a failure-to-train and a failure-to-supervise claim against
Cappy and Lenhart. The complaint’s allegations, however, relate only to their alleged failure to
supervise Yezzo. I therefore do not address whether Cappy and Lenhart adequately trained
Yezzo.
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416, 421 (6th Cir. 1984)). Moreover, “simple awareness of employees’ misconduct does not lead
to supervisor liability.” Id. Accordingly, there is no respondeat superior liability in § 1983 cases.
Id. (citing Taylor v. Michigan Dep’t of Corrs., 69 F.3d 76, 81 (6th Cir. 1995)).
Defendants argue that O’Donnell cannot show that Cappy and Lenhart “directly
participated in, or assisted” Yezzo in preparing her results for Decedent’s case. (Doc. 13 at 26).
O’Donnell counters that Cappy and Lenhart’s knowledge of Yezzo’s performance deficiencies
and instability equates to deliberate indifference. (Doc. 22 at 18).
O’Donnell proceeds under the incorrect standard. The “deliberate indifference” standard
applies in suits against government employees in their official capacities. See Essex v. Cty. of
Livingston, 518 Fed. App’x 351, 356-567 (6th Cir. 2013) (“Whereas the County’s liability may
be premised on its policymaker’s deliberate indifference, the individual defendant may be liable
only upon a showing of personal involvement.” (quoting Harvey v. Campbell Cty., 453 Fed.
App’x 557, 563 (6th Cir. 2011) (internal quotations omitted)). O’Donnell must “point to some
actual conduct by [Cappy and Lenhart] that directly contributed to [Decedent’s] injury.” Id. at
357.
As defendants point out, O’Donnell does not allege that Cappy and Lenhart encouraged
Yezzo or otherwise directed her to fabricate evidence in Decedent’s case. At most, she alleges
awareness: that Cappy and Lenhart knew Yezzo previously used unreliable methods and that she
expressed uncertainty about her competence. Accordingly, O’Donnell falls short of her burden.
In light of these findings, Cappy and Lenhart are immune from the § 1983 claims.
4. Merits Issues
a.

O’Donnell Has Stated a Brady Claim Against the City

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O’Donnell claims that the City violated her father’s constitutional rights to exculpatory
and impeachment evidence.6
Claims against municipalities may proceed in limited circumstances. See Monell v. Dep’t
of Soc. Servs., 436 U.S. 658 (1978) (holding that, while municipalities may be subject to § 1983
liability, a respondeat superior theory of liability is insufficient in such cases). “It is when
execution of a government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may be fairly said to represent official policy, inflicts the injury that the
government entity is responsible under § 1983.” Id. at 691.
Here, O’Donnell proceeds under two alternative theories of liability against the City.
First, she argues that White acted as the City’s final policymaker with respect to the murder
investigation leading to the father’s conviction. (Doc. 1 at 18-19, ¶ 95). Second, she claims that
the City neglected to “adequately supervise and train its’ [sic] investigators including White
regarding” their evidentiary duties. (Id. at 19, ¶ 96).
“[M]unicipal liability may be imposed for a single decision by municipal policymakers
under appropriate circumstances.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986).
Such liability “attaches only where the decisionmaker possesses the final authority to establish
municipal policy with respect to the action ordered.” Id. at 481. “Mere authority to exercise
discretion while performing particular functions does not make a municipal employee a final
policymaker unless the official’s decisions are final and unreviewable and are not constrained by
the official policies of superior officials.” Feliciano v. City of Cleveland, 988 F.3d 649, 655 (6th
Cir. 1993) (citing City of St. Louis v. Praprotnik, 485 U.S.112, 127(1988)).

6

O’Donnell raises Brady claims against the State Defendants, but I decline to assess the merits
of those claims in light of findings that they are immune from those claims.
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“[W]hether an official had final policymaking authority is a question of state law.”
Pembaur, supra, 475 U.S. at 481. “This includes ‘state and local positive law,’ such as statutes,
ordinances, and regulations, and less formal sources of law such as local practice and custom.”
Feliciano, supra, 988 F.3d at 655 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737
(1989)).
The City argues that White, as a “subordinate police officer[],” is not a final policymaker.
(Doc. 20 at 8). In support, the City notes that the Director of Public Safety leads the City police
department, which, in turn, employs a police chief. The police chief has authority to discipline
subordinate officers, such as White. (Id. (citing Ohio Rev. Code §§ 737.05, 737.12)). O’Donnell
responds that White “was the final policymaker for [the Parsons] investigation.” (Doc. 26 at 8
(citing Doc. 1 at ¶ 76)).
I agree with O’Donnell that White acted as a final policymaker in the investigation.
The Sixth Circuit has held that a police officer/investigator may be a final policymaker
respecting an investigation if the officer exercises final, unreviewable authority over the
investigation. See Monistere v. City of Memphis, 115 Fed. App’x 845, 853 (6th Cir. 2004). In
Monistere, the investigator received no direction from superiors respecting the investigation, and
the department head, per department practice, gave the investigator “unfettered discretion.” Id. at
852. Accordingly, the court held, the investigator “did not merely exercise discretion but rather
acted as a final policymaker within the context of this case.” Id.; see also Rush v. City of
Mansfield, 771 F. Supp. 2d 827, 864-65 (N.D. Ohio 2011) (holding detective was final
policymaker respecting investigation when unwritten department policy provided him
“unconstrained discretion” to determine contents of briefing provided to tactical team and no
policy otherwise governed such briefing); Cline v. City of Mansfield, 745 F. Supp. 2d 773, 815-

15

16, 843 (N.D. Ohio 2010) (O’Malley, J.) (finding agent who executed warrant, but not police
chief, was final policymaker for purposes of warrant’s execution where police chief was not
present when warrant was executed but agent had “final and unreviewable” discretion regarding
warrant’s execution) (internal citations and quotations omitted).
Here, O’Donnell alleges that White “had the authority to reopen the Parsons’ [sic] case . .
. [and] had control over all aspects of the investigation.” (Doc. 1 at 7, ¶ 29). That control,
according to the Complaint, was “final, unreviewed, and unreviewable.” (Id. at 15, ¶ 76).
Because the O’Donnell has plead facts to demonstrate White acted as a final policymaker
respecting the investigation, I deny the City Defendants’ motion as to the Brady claims.7
b.

O’Donnell Has Not Stated a Claim for Malicious Prosecution

O’Donnell alleges that White and the State Defendants maliciously prosecuted
Decedent’s murder case.8
To make out a claim for malicious prosecution, O’Donnell must show:
(1) That a criminal prosecution was initiated against [Decedent] and that the
defendant made, influenced, or participated in the decision to prosecute; (2)
that there was a lack of probable cause for the criminal prosecution; (3) that,
as a consequence of a legal proceeding, the [Decedent] suffered a deprivation
of liberty apart from the initial seizure; and (4) that the criminal proceeding
must have been resolved in the [Decedent’s] favor.
Mills v. Barnard, 869 F.3d 473, 480 (6th Cir.2017) (internal quotations and citations omitted).
Defendants argue that the accused father’s criminal proceedings did not conclude in his
favor. (Doc. 13 at 16; Doc. 20 at 10-11). It is not enough, they claim, that the state court vacated
the conviction and ordered a new trial. (Doc. 13 at 16-17; Doc. 20 at 10-11) (citing Attachment B

7

In light of my finding that White acted as a final policymaker, I decline to reach the failure-totrain argument.
8
White incorporates the State Defendants’ arguments against malicious prosecution in his brief
by reference. (See Doc. 20 at 10-11). I therefore refer to both defendants’ briefs in this section.
16

to this order)). O’Donnell responds that “because there is no guilty verdict and charges have been
dropped, the criminal proceeding has resolved in Mr. Parsons’s favor.” (Doc. 22 at 13).
Although the Sixth Circuit has not articulated a clear rule to apply in this circumstance, I
agree with defendants.
None of the Sixth Circuit cases the parties cite directly support their respective positions.
In Mills v. Barnard, supra, which O’Donnell cites, the plaintiff appealed a trial court’s
decision to deny him post-conviction review of all but one of the charges against him. The
appellate court subsequently “overturned all of [his] convictions.” 869 F.3d at 478. Here,
however, at the time of his death, the accused father remained in judicial limbo. Though the trial
court vacated his conviction and ordered a new trial, no subsequent proceedings occurred.
Accordingly, at the time of his death, Decedent’s criminal case remained unresolved.
On the other hand, Nouri v. County of Oakland, 615 Fed. App’x 291 (6th Cir. 2015),
which defendants cite, contains additional facts not present here. In that case, the court
concluded that criminal charges had not been resolved in the plaintiff’s favor where the court
reversed his conviction and ordered a new trial. The plaintiff in Nouri signed a plea deal, which
resulted in the dismissed conviction. “[C]ourts do not consider that sort of compromise to be
sufficiently favorable to the criminal defendant to support a malicious prosecution claim.” Id. at
300 (internal citations omitted). No such plea deal exists here.
Finding no Sixth Circuit case law that gives clear guidance on this set of facts, I look to
other circuits’ precedent. First, Second, and Seventh Circuit opinions are instructive.
According to the Second Circuit, “Proceedings are terminated in favor of the accused
only when their final disposition is such as to indicate the accused is not guilty.” DiBlasio v. City
of New York, 102 F.3d 654, 658 (2d Cir. 1996) (internal quotations and citations omitted).

17

Therefore, a plaintiff could not show a favorable resolution where a court reversed his conviction
and ordered a new trial. Id.; see also Bristol v. Nassau Cty., 685 Fed. App’x 26, 29 (2d Cir.
2017) (finding no favorable termination despite a new trial order where plaintiff awaited trial on
his pending indictment).
The First Circuit likewise has held that a plaintiff’s “section 1983 claims did not accrue
[for statute of limitations purposes] until their respective criminal prosecutions ended in
acquittals.” Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir. 1995).
The Seventh Circuit indicates that a plaintiff may be able to show favorable resolution
without an acquittal. See Julian v. Hanna, 732 F.3d 842, 845 (7th Cir. 2013). The court in Julian
explained that a criminal case ends in the plaintiff’s favor in one of two circumstances: 1) where
“the retrial was held, and ended favorably to him, or” 2) “the charges against him were dropped
without a retrial.” Id.
Even applying the Seventh Circuit’s broader approach, O’Donnell cannot show that
accused father’s criminal case was resolved completely in his favor. Certainly, the case against
him had yet to end in either an acquittal or dismissal. Moreover, although O’Donnell states in her
brief that “Mr. Parsons’ charges were . . . dismissed,” the criminal record indicates that the case
terminated solely due to her father’s death. (Attachment B at 1 (Entry of 2/27/2017 “COURT
FINDS THAT DEFT IS NOW DECEASED, THAT THIS CASE IS CLOSED.”). Neither the
criminal docket – nor plaintiffs’ complaint – contains facts showing the State dropped
Decedent’s charges.
Securing post-conviction relief was in this case a crucial prerequisite. But, standing
alone, the order granting such relief did not, and could not, without further action, relieve the
accused father of the potential jeopardy of a retrial and conviction. Because the accused father

18

never received the full vindication of a not guilty verdict or the implicit exoneration of a
dismissal, there was, in the end, no conclusively favorable outcome.
I therefore grant defendants’ motions as to the malicious prosecution claims.
B.
1.

Common Law Claims

O’Donnell States an IIED Claim Against White

O’Donnell brings a representative claim of intentional infliction of emotional distress
(IIED) against White. To make out such a claim, she must plead facts sufficient to show:
(1) that the actor either intended to cause emotional distress or knew or should
have known that actions taken would result in serious emotional distress to the
plaintiff, (2) that the actor's conduct was so extreme and outrageous as to go
beyond all possible bounds of decency and was such that it can be considered
as utterly intolerable in a civilized community, (3) that the actor's actions were
the proximate cause of the plaintiff's psychic injury, and (4) that the mental
anguish suffered by the plaintiff is serious and of a nature that no reasonable
man could be expected to endure it.
Burkes v. Stidham, 668 N.E.2d 982, 989 (Ohio App. 1995).
Initially, White argues that the IIED claim fails “because Parsons has not been exonerated
of murdering his wife,” and, therefore, “his emotional distress claims have not accrued.” (Doc.
20 at 12 (citing Parish v. City of Elkhart, 614 F.3d 677, 683-84 (7th Cir. 2010)). White
effectively argues that, unless the criminal proceedings resolved in the accused father’s favor,
O’Donnell cannot bring an IIED claim on his behalf. (See id.). White identifies no case law from
Ohio – or from this circuit – supporting his argument.
O’Donnell, on the other hand, cites a district court decision from this circuit with similar
facts. See LeFever v. Ferguson, 2013 WL 3742530, *15-16 (S.D. Ohio). In LeFever, the court
denied summary judgment for the defendant on an IIED claim, but the underlying criminal
proceedings did not resolve in plaintiff’s favor. See id. (granting summary judgment for
defendant on malicious prosecution claim).
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In light of the court’s analysis in LeFever, I decline to adopt a requirement that
O’Donnell show that the criminal proceedings resolved in her father’s favor for the IIED claim
to survive.
White also argues that his alleged misconduct – that is, providing Yezzo the incorrect
breaker bar for forensic testing – did not cause Decedent’s emotional distress. 9 Rather, he
argues, BCI’s failure to turn over Yezzo’s personnel file caused the allegedly wrongful
conviction. (Doc. 20 at 12-14 (citing Attachment A)). O’Donnell responds that White’s conduct,
in conjunction with the Yezzo file’s non-disclosure, was a proximate cause of Decedent’s
emotional distress.
“Proximate cause is ‘that which immediately precedes and produces the effect, as
distinguished from a remote, mediate, or predisposing cause.’” Burks v. Torbert, 2009 WL
280405, *4 (Ohio App.) (quoting Jeffers v. Olexo, 539 N.E.2d614 (Ohio 1989)). A plaintiff’s
harms may result from more than one proximate cause. See United States v. Hargrove, 714 F.3d
371, 374-75 (6th Cir. 2013) (“When the conduct of two or more actors is so related to an event
that their combined conduct, viewed as a whole, is a but for cause of the event, . . . the conduct
of each is a cause in fact of the event.. . . [T]he same reasoning applies to [proximate cause].”)
(internal citation and quotations omitted).
First, I note that White’s mischaracterizes the scope of O’Donnell’s allegations.
O’Donnell alleges that White did more than disclose the wrong breaker bar. O’Donnell alleges
that White’s conducted a wholly flawed investigation, including altering decade-old evidence
and discarding evidence bags (Doc. 1 at 7, ¶ 30); engaging with Yezzo despite her reputation for

9

White also argues, for this same reason, that he “is not the proper party” to be sued on the IIED
claim. (Doc. 20 at 13).
20

misconstruing test results (id. at ¶ 33); and allowing Yezzo to test the wrong breaker bar (id. at 9,
¶ 43) and produce false reports (id. at ¶ 44).
Second, I decline to read the state court opinion to limit the proximate cause of the
father’s emotional distress to one cause. The opinion focuses on the prosecution’s Brady
violation vis-vis the personnel file as resulting in an unfair trial. But the court did not conduct a
proximate-cause inquiry. Rather, the court found that the jury’s verdict, without their knowledge
of Yezzo’s reputation and conduct issues, made the verdict unworthy of confidence. (See
Attachment A).
Indeed, the complaint’s allegations, taken together, point to aggregate causes of the
father’s emotional distress. The wrongdoing leading to a now-vacated conviction and years in
prison was three-way, not singular. BCI withheld evidence material on the issue of guilt or
innocence. That was enough to vacate the conviction.
But that was not all the wrongdoing, according to the complaint. White manipulated the
evidence, part of which received inconclusive evaluations from two initial forensic examinations.
Once in her hands, Yezzo produce an expert report, the accuracy of which was, at best, highly
suspect.
To be sure, the complaint’s allegations are just that. Nonetheless I must read them
favorably to the plaintiff. Each of the three contributed to the State’s three-legged case. Take
one away, and, without that missing leg, the conviction – and the emotional distress of
imprisonment that every wrongly convicted inmate must endure for his entire term – would not
have occurred.
Accordingly, I deny the City defendants’ motion to dismiss the IIED claim.
2.

O’Donnell States a Claim Against White for Wrongful Death

21

O’Donnell also brings a representative wrongful death claim against White.
“To maintain a wrongful death action . . ., a plaintiff must show (1) the existence of a
duty owing to plaintiff’s decedent, (2) a breach of that duty, and (3) proximate causation between
the breach of duty and the death.” Littleton v. Good Samaritan Hosp. & Health Ctr., 529 N.E. 2d
449, 454 (Ohio 1988).
White attacks the causation element in the same way he attacked O’Donnell’s IIED
claim. (See Doc. 20 at 14 (“[T]he misconduct attributed to Defendant White in the Complaint did
not produce the wrongful conviction, nor are there allegations in the Complaint that he was a
participant in the conduct that did . . . [T]hose facts negate . . . the wrongful death claim as a
matter of law.”)). O’Donnell responds that “[p]roximate cause does exist, because Defendant
White’s violations of Mr. Parsons’ [sic] rights caused his wrongful conviction, and his wrongful
conviction caused his health to deteriorate until it killed him.” (Doc. 26 at 18).
I agree with O’Donnell that the complaint sufficiently alleges causation.
The Ohio Supreme Court has explained:
The rule of proximate cause “requires that the injury sustained shall be the natural
and probable consequence of the negligence alleged; that is, such consequence as
under the surrounding circumstances of the particular case might, and should have
been foreseen or anticipated by the wrongdoer as likely to follow his negligent
act.”
Jeffers v. Olexo, 539 N.E.2d 614, 617-18 (Ohio1989) (quoting Ross v. Nutt, 203 N.E.2d
118, 120 (Ohio 1964)).
“The notion of foreseeability is intertwined with the concept of duty and proximate
cause.” Hunt v. Marksman Prods., 656 N.E.2d 726, 728 (Ohio App. 1995) (internal citation
omitted). Therefore, O’Donnell’s complaint must allege facts to demonstrate that her father’s
death resulted as a foreseeable consequence of White’s actions.

22

In In re Heparin, I found that a wrongful death plaintiff failed to “adequately allege
proximate causation.” 2010WL 547322, *2 (N.D. Ohio) (Carr, J.). The complaint in that case
“vaguely referr[ed] to” defendant’s actions and its resulting product recall. Then, the complaint
“summarily state[d] that decedent’s injuries and death resulted ‘[a]s a direct and proximate
result’” of those actions. Id. Finding “no more than ‘formulaic recitation of the elements of a
cause of action,’” I dismissed the complaint. Id. at *3 (quoting Twombly, supra, 550 U.S. at 555).
O’Donnell alleges that White’s conduct worked in tandem with others’ misconduct,
resulting in her father’s allegedly wrongful conviction and incarceration. This caused him
“decades of stress and depression,” which, according to the complaint, exacerbated his “chronic
heart problems.” (See Doc. 1 at 17, ¶¶ 88, 91). His worsening heart conditions, the complaint
alleges, resulted in his premature death. (Id. at 17, 21 ¶¶ 91, 106). The complaint further alleges
that the father’s “death was the foreseeable and natural consequence of the actions of Defendant
White.” (Id. at 21, ¶ 107).
This is more than a formulaic recitation of the elements of a wrongful death cause of
action. Rather, O’Donnell’s complaint contains factual allegations that, when viewed in the light
most favorable to her, link White’s conduct to her father’s death.10 Therefore, while the ultimate
resolution of her claim awaits another day, I find that O’Donnell has sufficiently alleged a
wrongful death claim. I deny the City defendants’ motion as to that claim.
3.

Plaintiffs State a Loss of Consortium Claim Against the City Defendants

Plaintiffs bring a personal loss of consortium claim against the City Defendants.

10

I note that it is of no consequence that the father suffered from heart conditions that may have
been unknown to White. See Restatement of Torts 2d § 461 (“The negligent actor is subject to
liability for harm to another although a physical condition of the other which is neither known
nor should be known to the actor makes the injury greater than that which the actor as a
reasonable man should have foreseen as a probable result of his conduct.”).
23

“[A] cause of action for loss of consortium is a derivative action.” Messmore v. Monarch
Mach. Tool Co., 463 N.E.2d 108, 110 (Ohio App. 1983). This means that a claim for loss of
consortium “is dependent upon the existence of a primary cause of action and can be maintained
only so long as the primary action continues.” Id.
The City Defendants first argue that the loss of consortium claim must be dismissed
because the primary claims on which it is based do not survive. (Doc. 20 at 14-15). But, as
explained above, the Brady claim and wrongful death claim remain against the City, and the
IIED claim and wrongful death remain against White. I therefore cannot dismiss the loss of
consortium claim on that ground.
The City also argues that it is entitled to statutory immunity under O.R.C. § 2744.02.
That statute provides that, “a political subdivision is not liable in damages in a civil action for
injury, death, or loss to person or property allegedly caused by any act or omission of the
political subdivision or an employee of the political subdivision in connection with a
governmental or proprietary function.” Ohio Rev. Code § 2744.02(A)(1). Municipalities enjoy
this immunity subject to certain exceptions. See id. at § 2744.02(B)(1)-(5). The City argues that
none of the listed exceptions applies in this case.
Plaintiffs do not argue that a statutory exception undermines the City’s immunity. (See
Doc. 26 at 14). Rather, they argue that, because constitutional claims remain against the City, the
Ohio statute provides no protection. (Id. (citing Ohio Rev. Code § 2744.09(E))).
Insofar as the loss of consortium claim rests upon the Brady claim against the City, I
agree with plaintiffs that the City is not immune. See Boyer v. Lacy, 665 Fed. App’x 476, 485
(6th Cir. 2016) (recognizing loss of consortium claims based on § 1983 claims). “[T]he
immunity granted by R.C. Chapter 2744 does not apply to ‘alleged violations of the constitution

24

or statutes of the United States.’” Stevens v. Cox, 2009 WL 223897, *16 (Ohio App.) (quoting
O.R.C. § 2744.09(E)).
The wrongful death claim, however, is a common law claim. Plaintiffs “cannot maintain
a derivative loss of consortium claim based upon any claim for which immunity is appropriate.”
H.M. v. Bd. Of Education of the Kings Local School District, 117 F. Supp. 3d 992, 1016 (S.D.
Ohio 2015) (holding plaintiffs could not bring loss of consortium claim against public school
employees based on IIED claim). Accordingly, plaintiffs cannot maintain a loss of consortium
cause of action against the City based on the wrongful death claim. See Ohio Rev. Code §
2744.02(A)(1).
I therefore grant the City Defendants’ motion in part and deny it in part as to the loss of
consortium claim.
4.

Plaintiffs Do Not State a NIED Claim

Finally, plaintiffs bring a personal claim of negligent infliction of emotional distress
(NIED) against White.
For their NIED claim to survive, plaintiffs must plead sufficient facts to show: “(1) The
plaintiff witnessed and/or experienced a real or impending danger to another, (2) the defendant’s
conduct negligently caused the dangerous incident, and (3) the defendant’s conduct was the
proximate cause of plaintiff’s serious and reasonably foreseeable emotional distress.” Stout v.
United States, 721 Fed. App’x 462, 473 (6th Cir. 2018) (quoting David v. Matter, 96 N.E.3d
1012 (Ohio App. 2017) (internal quotations omitted)).
White argues that he is immune from the NIED claim. Municipal employees are
generally immune from claims based on negligence. O.R.C. § 2744.03(A)(6). Such employees
are not immune, however, from NIED claims raised “by a bystander . . . so long as the bystander

25

also alleges the employee actions met one of the higher standards of intent identified in R.C.
2744.03(A).” David, supra, 96 N.E. 3d at 1019.
Municipal employees are not immune from liability based on their reckless conduct.
O.R.C. § 274.03(A)(6)(b). Plaintiffs assert that White acted recklessly (Doc. 1 at 21-22, ¶ 119),
so that White is not immune from the NIED claim. David, supra, 96 N.E. 3d at 1019 (holding
municipal employees were not immune from NIED claim based on recklessness).
Moreover, the recklessness allegation does not, as the City Defendants argue, convert
plaintiffs’ NIED claim into an IIED claim. See id. (analyzing bystander claim based on
recklessness as NIED claim).
The parties dispute whether plaintiffs have sufficiently alleged an emotional injury. I find
that they have not.
“[T]he same standard [applies] for establishing emotional distress in negligent infliction of
emotional distress actions and intentional infliction of emotional distress [actions].” Swartz v.
DiCarlo, 2014 WL 4955801, *5 (N.D. Ohio) (Boyko, J.) (citing Yeager v. Local Union 20,
Teamsters, Chauffeurs, Warehousemen, & Helpers of Am., 453 N.E.2d 666 (Ohio 1983)),
Welling v. Weinfeld, 113 Ohio St.3d 464 (Ohio 2007).
. Accordingly, plaintiffs must allege facts demonstrating an “emotional injury which is
both severe and debilitating.” Paugh v. Hanks, 451 N.E.2d 759, 765 (Ohio 1983). “[S]erious
emotional distress may be found where a reasonable person, normally constituted, would be
unable to cope adequately with the mental distress engendered by the circumstances of the case.”
Id. Examples of such an injury include: “traumatically induced neurosis, psychosis, chronic
depression, or phobia.” Id. (internal citation omitted).

26

The court in Swartz dismissed plaintiff’s IIED claim applying the same emotional injury
standard as that used in NIED claims. The plaintiff in that case alleged “that he suffered ‘severe
emotional distress’ and nothing else. There are no specifics as to how he suffered.” 2014 WL
4955802 at *4. (“Where is the claim of sleepless nights, inability to work for a period of time, or
the close familial or personal relationships have suffered serious strain due to the additional
stress from the situation, or the ‘change in habitual makeup?’”).
Similarly, plaintiffs allege in their Complaint that they “have suffered and continue to
suffer severe and debilitating emotional distress.” (Doc. 1 at 22, ¶ 120). They allege no facts
showing how they suffered. Rather, in their motion, they point to the events they witnessed,
including their father’s charge for murdering their mother, the jury’s guilty verdict in that case,
losing their father’s company during his incarceration, and their father’s emotional deterioration
until his death. (See Doc. 26 at 17). Traumatic events, no doubt, but these facts support a separate
element: that plaintiffs witnessed danger to another.
The Complaint simply fails to include facts demonstrating an emotional injury, and, for
that reason, I must grant the City Defendants’ motion as to the NIED claim. See Peters v.
Monroe Township Bd. of Trustees, 2011 WL 3652719, *7 (S.D. Ohio) (dismissing emotional
distress claim where plaintiffs alleged they suffered “severe emotional distress”).

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Conclusion
It is, therefore,
ORDERED THAT
Defendants G. Michelle Yezzo, Daniel Cappy, and John Lenhart’s motion to dismiss
(Doc. 13) be, and the same hereby is, granted.
It is further ORDERED THAT
Defendants Charles Michael White and City of Norwalk’s motion for judgment on the
pleadings (Doc. 20) be, and the same hereby is, granted in part and denied in part.
So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

28