Cook v. Kata

Filing 56

Memorandum Opinion: Defendant's motion for summary judgment on plaintiff's federal and state law claims is granted. Accordingly, this action is dismissed. (Related Doc # 36 ). Judge Sara Lioi on 11/10/2015. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT T. COOK,
PLAINTIFF,

vs.

WILLIAM KATA,
DEFENDANT.

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CASE NO. 4:14 CV 1283
JUDGE SARA LIOI

MEMORANDUM OPINIOIN

The matter is before the Court on the motion of defendant William Kata
(“defendant” or “Kata”) for summary judgment. (Doc. No. 36 [“Mot.”].) Plaintiff Robert
Cook (“plaintiff” or “Cook”) has opposed defendant’s motion (Doc. No. 43 [“Opp’n”]),
and defendant has replied (Doc. No. 45 [“Reply”]). Defendant’s motion is ripe for
decision, and for the reasons that follow, the motion is granted.
I. BACKGROUND
This case arises from events occurring on June 13, 2013. Plaintiff’s
residence is located on Hoss Avenue in Hubbard, Ohio. On that day, defendant William
Kata, who is a deputy with the Trumbull County Sheriff’s Department, went to plaintiff’s
residence to obtain the vehicle identification numbers (“VINs”) from four “junk” vehicles
on plaintiff’s property.
Cook was previously noticed and issued summons for violation of Ohio
Rev. Code § 4513.65 with respect to “junk” vehicles on his property. Kata was asked by

Deputy Wix, also with the Trumbull County Sheriff’s Department, to retrieve the VINs
from four of the vehicles pursuant to an agreement between Cook and the prosecutor
reached at a pretrial conference conducted in connection with the summons. (Doc. No. 38
(Deposition of William Kata [“Kata Dep.”]) at 295.1) Cook denies reaching an agreement
with the prosecutor that the sheriff would come to his property to obtain the VINs from
four “junk” vehicles. (Doc. No. 39 (Deposition of Robert Cook [“Cook Dep.”] at 346).).
When Kata arrived at Cook’s property, he began obtaining the VINs from
the vehicles. Kata did not have a warrant or any other documentation. Cook came out of
his house and confronted Kata regarding the reason for his presence and objected to
Kata’s presence without a warrant. Cook’s testimony is mixed as to whether he told Kata
to get out of the car in which Kata was looking for the VIN, or to leave the property.
(Cook Dep. at 344-46.) Cook told Kata that he was calling the Ohio State Highway Patrol
to send a cruiser because Cook had an armed intruder—Kata—on his property, and Kata
observed Cook using his cell phone.
The parties have conflicting accounts of what took place next. According
to Kata, Cook stated that he had a gun in his storage shed and was going to shoot Kata,
and began walking toward the shed. Kata states that when he ordered Cook to stop
walking toward the shed Cook turned toward Kata and threw coffee on him, then
resumed walking toward the shed. At that point, Kata deployed his taser and struck Cook
in the back. (Kata Dep. at 296-97.).

1

All references to page numbers are to the page identification numbers generated by the Court’s electronic
case filing system.
2

Cook flatly denies that he told Kata he had a gun in his shed or was going
to shoot Kata if he did not leave the property. (Cook Dep. at 349-50.) According to Cook,
he walked away from Kata to meet the highway patrol when they arrived. Plaintiff claims
that when he turned his back on Kata, Kata deployed his taser and struck Cook in the
back, causing Cook to fall to the ground and drop his coffee and his cell phone. (Cook
Dep. at 352-53.).
What is not in dispute with respect to the events of June 13, 2013, is that
Cook was charged with aggravated menacing of Kata pursuant to Ohio Rev. Code §
2903.21(A). After a jury trial at which Cook was represented by counsel and testified on
his own behalf, Cook was found guilty by the jury of aggravated menacing. (Doc. No.
36-2 (Judgment Entry and Jury Verdict); Cook Dep. at 342; Doc. No. 40 (Trial Transcript
[“Tr.”] at 595).).
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate where “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). A fact is material if its resolution affects the outcome of the lawsuit under the
governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986). A dispute is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. If a reasonable jury could return a
verdict for the nonmoving party, then summary judgment is not appropriate. Id.

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The moving party must provide evidence to the court which demonstrates
the absence of a genuine dispute as to any material fact. Once the moving party meets
this initial burden, the opposing party must come forward with specific evidence showing
that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.
Ct. 2548, 91 L. Ed. 2d 265 (1986); Anderson, 477 U.S. at 250. The nonmoving party may
oppose a summary judgment motion “by any of the kinds of evidentiary material listed in
Rule 56(c), except the mere pleadings themselves[.]” Celotex, 477 U.S. at 324. The Court
must view all facts and evidence, and inferences that may be reasonably drawn
therefrom, in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654,
655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962).
General averments or conclusory allegations of an affidavit do not create
specific fact disputes for summary judgment purposes. See Lujan v. Nat’l Wildlife Fed.,
497 U.S. 871, 888-89, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). “Summary judgment
requires that a plaintiff present more than a scintilla of evidence to demonstrate each
element of a prima facie case.” Garza v. Norfolk S. Ry. Co. 536 F. App’x 517, 519 (6th
Cir. 2013) (citing Van Gorder v. Grand Trunk W. R.R., 509 F.3d 265, 268 (6th Cir.
2007)). “‘The mere existence of a scintilla of evidence in support of the [nonmoving
party’s] position will be insufficient; there must be evidence on which the jury could
reasonably find for the [nonmoving party].’” Street v. J.C. Bradford & Co., 886 F.2d
1472, 1477 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 252).

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In summary, the district court’s review on summary judgment is a
threshold inquiry of determining whether there is the need for a trial due to genuine
factual issues that must be resolved by a finder of fact because those issues may
reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250. Put another
way, 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.” Id. at 251-52; see also Wexler v. White’s Fine Furniture, Inc., 317 F.3d
564, 578 (6th Cir. 2003).
B. 42 U.S.C. § 1983
Plaintiff alleges that Kata violated the Fourth and Fourteenth Amendments
to the United States Constitution when Kata allegedly entered onto Cook’s property to
obtain VINs without the lawful right to do so and used excessive force against Cook.
Cook seeks relief pursuant to 42 U.S.C. § 1983. In order to recover under § 1983,
plaintiff must establish that Kata acted under color of state law and violated Cook’s rights
secured by the Constitution or laws of the United States. See Adickes v. S.H. Kress & Co.
398 U.S. 144, 150, 90 S. Ct. 1598 26 L. Ed. 2d 142 (1970). The parties do not dispute
that, on the day in question, Kata was acting under color of state law. The only question
is whether Kata violated Cook’s rights under the Fourth Amendment.2

2

Because Cook was a free person at the time, and the use of force occurred in the course of an arrest or
other seizure, plaintiff’s excessive force claim arises under the Fourth Amendment and its reasonableness
standard, not the Fourteenth Amendment. Lanman v. Hinson, 529 F.3d 673, 680 (6th Cir. 2008).
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C. Qualified Immunity
Kata argues that he is entitled to summary judgment on merits of
plaintiff’s claims and on the basis of qualified immunity. Qualified immunity is not a
mere defense to liability, but shields a government official from suit if the official’s
conduct in performing a discretionary function does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.
Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)
(citation omitted). A government official is entitled to qualified immunity even if that
official makes a mistake of fact, law, or mixed question of law and fact—qualified
immunity provides “ample room for mistaken judgments by protecting all but the plainly
incompetent or those who knowingly violate the law.” Chappell v. City of Cleveland, 585
F.3d 901, 907 (6th Cir. 2009) (internal quotation marks omitted) (citing Pearson, 129 S.
Ct. at 815 and Hunter v. Bryant, 502 U.S. 224, 229, 112 S. Ct. 534, 116 L. Ed. 2d 589
(1991) (further citation omitted)).
Plaintiff bears the burden of establishing that the defendant is not entitled
to qualified immunity, and must do so by showing that, when viewing the evidence in the
light most favorable to the plaintiff, (1) the defendant violated a constitutional right, and
(2) the right was clearly established in light of the specific context of the case. Marsilio v.
Vigluicci, 924 F. Supp. 2d 837, 855 (N.D. Ohio 2013) (citing Saucier v. Katz, 533 U.S.
194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001)) (other citations omitted). “For a
right to be clearly established, the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Id.
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(quoting Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003)). The Court has the discretion
to consider the two prongs of Saucier’s qualified immunity analysis in whatever order is
appropriate in light of the circumstances of a particular case. Scozzari v. Miedzianowski,
597 F. App’x 845, 847-48 (6th Cir. 2015) (citing Pearson, 555 U.S. at 236).
D. Excessive Force Claim
The “right to be free from excessive force is a clearly established Fourth
Amendment right.” Neague v. Cynkar, 258 F.3d 504, 507 (6th Cir. 2001) (citing Walton
v. City of Southfield, 995 F.2d 1331, 1342 (6th Cir. 1993)). Therefore, to decide whether
Kata is entitled to summary judgment on qualified immunity with respect to Cook’s
excessive force claim, the Court must first determine whether there is a genuine dispute
of material fact as to whether Kata’s use of force was excessive in violation of the Fourth
Amendment, that is, whether Kata’s tasing of Cook was objectively reasonable in light of
the facts and circumstances confronting Kata at the time. Goodwin v. City of Painesville,
781 F.3d 314, 321 (6th Cir. 2015) (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S.
Ct. 1865, 104 L. Ed. 2d 443 (1989) (“As in other Fourth Amendment contexts . . . the
‘reasonableness’ inquiry in an excessive force case is an objective one: the question is
whether the officers' actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them[.]”)). “The ‘reasonableness’ of a particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight[,] . . . and must embody allowance for the fact that police
officers are often forced to make split-second judgments—in circumstances that are

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tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.” Graham, 490 U.S. at 396-97 (citation omitted).
Three factors must be considered in evaluating an excessive force claim
under the Fourth Amendment: (1) the severity of the crime at issue; (2) whether the
suspect posed an immediate threat to the safety of the officer or others; and (3) whether
the suspect was actively resisting or attempting to avoid arrest by flight. Id. at 396. The
“final step in the Graham analysis” requires the Court to consider whether the totality of
the circumstances justifies the force used. Goodwin, 781 F.3d at 324 (quoting Graham,
490 U.S. at 396).
1. Preclusive effect of aggravated menacing conviction
Before undertaking the Graham analysis, the Court must first consider the
effect, if any, of Cook’s conviction for aggravated menacing on the excessive force
analysis. “As a general rule, a federal civil action brought under § 1983 is not a venue for
re-litigating issues that were decided in a prior state criminal case.” McKinley v. City of
Mansfield, 404 F.3d 418, 428 (6th Cir. 2005) (citing Allen v. McCurry, 449 U.S. 90, 103–
05, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980) (principles of collateral estoppel and res
judicata apply in § 1983 actions)). “A state court judgment must be given the same
preclusive effect in federal court that it would be given in the courts of the rendering
state.” Walker v. R. Schaeffer, 854 F. 2d 138, 142 (6th Cir. 1988) (citing Migra v. Warren
City Sch. Dist. Bd. of Educ., 465 U.S. 75, 85, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984)). In
order for a state court judgment to have a preclusive effect in a § 1983 action, the litigant
against whom preclusion is sought must have had a “full and fair opportunity” to litigate
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the claim or issue decided by the state court. Allen, 449 U.S. at 95 (citation omitted);
Walker, 854 F.2d at 142.
a. Preclusion under Ohio law
Because Cook’s criminal trial took place in Ohio, the Court applies Ohio
issue preclusion law to determine whether Cook may relitigate in this case any facts and
issues decided in Cook’s aggravated menacing case. McKinley, 404 F.3d at 428 (citing
Migra, 465 U.S. at 81 (federal courts apply the collateral estoppel law of the state which
issued the prior judgment)) (other citations omitted).
“In Ohio, ‘issue preclusion precludes relitigation of an issue that has been
actually and necessarily litigated and determined in a prior action.’” McKinley, 404 F.3d
at 428-29 (6th Cir. 2005) (quoting MetroHealth Med. Ctr. v. Hoffmann–Laroche, Inc.,
685 N.E.2d 529, 533 (Ohio 1997)) (internal quotation marks and citations omitted); see
also State v. Williams, 667 N.E.2d 932, 935 (Ohio 1996) (“The doctrine of collateral
estoppel, or, more correctly, issue preclusion, precludes further action on an identical
issue that has been actually litigated and determined by a valid and final judgment as part
of a prior action among the same parties or those in privity with those parties.”) (citations
omitted); Thompson v. Wing, 637 N.E.2d 917, 923 (Ohio 1994) (“Collateral estoppel
applies when the fact or issue (1) was actually and directly litigated in the prior action,
(2) was passed upon and determined by a court of competent jurisdiction, and (3) when
the party against whom collateral estoppel is asserted was a party in privity with a party
to the prior action.”) (citation omitted).

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“[T]his understanding of collateral estoppel is consonant with the
Supreme Court’s view of the doctrine as it applies in the § 1983 arena.” McKinley, 404
F.3d at 428 n.9 (citing Allen, 449 U.S. at 94 (“Under collateral estoppel, once a court has
decided an issue or fact necessary to its judgment, that decision may preclude relitigation
of the issue in a suit on a different cause of action involving a party to the first case.”)).
b. Cook’s aggravated menacing conviction
Plaintiff was charged with aggravated menacing (Ohio Rev. Code §
2903.21) in connection with the same events on June 13, 2013, that form the basis of
plaintiff’s § 1983 excessive force claim. (Doc. No. 40 at 620-24 “Incident Report”].) The
incident report states that Kata was obtaining VINs at Cook’s residence when Cook “got
aggravated” and told Kata to get off his property if Kata did not have a search warrant.
(Incident Report at 624.).
Mr. Cook then stated that he had a 45 in the shed and he was going to
shoot me. . . . Mr. Cook then turned and started walking in the direction of
the shed. I told Mr. Cook to stop he turned back to me and through [sic]
coffee on me. He then turned away and started walking away. I told him to
stop or I would Taze him. He did not stop and was told a second with my
Tazer drawn. Mr. Cook did not comply and I deployed my Tazer.
(Id.).
The aggravated menacing statute at the time3 Cook was charged and
convicted provides in relevant part that:
(A) No person shall knowingly cause another to believe that the offender
will cause serious physical harm to the person . . . .

3

The statute was amended on September 17, 2014.
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(B) Whoever violates this section is guilty of aggravated menacing. . . .
Ohio Rev. Code § 2903.21(A) and (B).
A trial was conducted in Girard Municipal Court on the aggravated
menacing charge against Cook, at which Cook was represented by counsel. Deputy Wix,
Kata, Cook, and Cook’s brother (Charles Cook) testified. The testimony of Cook and
Kata at the criminal trial mirrors their deposition testimony in this case with respect to
their different views of the events leading up to Kata’s alleged use of excessive force.
Kata testified that Cook stated that Cook had a gun in the shed and was going to shoot
Kata if he did not leave his property, and that Kata deployed his taser when Cook refused
to stop advancing towards the shed as instructed by Kata. (Tr. at 447-52.) Cook testified
that he was tased by Kata when Cook told Kata that he had summoned the Ohio State
Highway Patrol and was walking away from Kata to meet the patrol. (Tr. at 552-53.).
At the conclusion of the testimony, the judge instructed the jury that the
state was required to prove beyond a reasonable doubt “all the essential elements” of
aggravated menacing, that is, that “defendant knowingly caused [Kata] to believe that the
defendant would cause serious physical harm to [Kata].” (Tr. at 586-87.) The judge also
instructed the jury regarding the elements of the lesser included offense of menacing,
which required the government to prove beyond a reasonable doubt that Cook knowingly
caused Kata to believe that Cook would cause physical harm to Kata. (Id.) The jury found
Cook guilty of aggravated menacing. (Tr. at 595-96.).

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Plaintiff argues on summary judgment that this Court must credit Cook’s
deposition testimony, which creates a genuine dispute of material fact, with respect to his
excessive force claim. But those same disputed facts were fully and fairly litigated before
a jury in a court of competent jurisdiction, and Cook was a party to that action. Under
Ohio law, plaintiff is precluded from relitigating those facts—and the jury’s conclusion
that Cook caused Kata to believe that Cook would cause him serious physical harm—and
may not use a § 1983 claim as a forum for doing so. See McKinley, 404 F.3d at 428-29.4
In opposing defendant’s summary judgment motion, Cook does not
directly address the preclusive effect of his menacing conviction on his excessive force
claim. Rather, plaintiff argues that the conviction does not “blatantly contradict” Cook’s
deposition testimony with objective evidence, and therefore cannot be used to disregard
Cook’s deposition testimony on summary judgment. (Opp’n at 636.).
With respect to the summary judgment standard under Fed. Rule Civ. P.
56(c), the Supreme Court in Scott v. Harris held that “[w]hen opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,
380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (respondent’s version of events utterly
discredited by videotape). Cook contends that his aggravated menacing conviction does

4

Further, to the extent that Cook attempts to assert a claim and argue facts that would overturn his
conviction for aggravated menacing or render it invalid, such a claim is not cognizable under § 1983. See
Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994).
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not blatantly contradict his deposition testimony with respect to the excessive force claim
because
. . . [t]o determine how the individual jurors reached the decision to
convict Cook requires a subjective analysis. Factors other than the truth or
falsity of each and every aspect of Cook’s rendition of all of the critical
events may well have influenced the jury. Further, the issues that the jury
actually considered in convicting Cook may have differed from the issues
on which rulings in this civil case depend.
The Scott exception is rooted in the fact that the video tape
provided a totally objective, totally accurate depiction of the subject car
chase. The jury’s verdict in Cook’s criminal case is neither sufficiently
objective nor sufficiently definitive to invoke Scott.
(Opp’n at 636 (emphasis in original).).
But Cook’s aggravated menacing conviction under Ohio law prevents
Cook from relitigating the issue of whether he caused Kata to believe that he would cause
Kata serious physical harm. In essence, as defendant suggests, the jury’s verdict is
entirely contrary to Cook’s version of the facts on this point.
2. Analysis
The first Graham factor in an excessive force analysis is the severity of
the crime. Cook contends that he “committed no crime,”5 but Cook was charged and
convicted of aggravated menacing. Given the nature of the crime—knowingly causing
Kata to believe that Cook would cause serious physical harm to him—the first Graham
factor weighs in favor of Kata.

5

Opp’n at 638.
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“The most important Graham factor is whether a suspect posed an
immediate threat to the safety of the officers or others.” Bustamante v. Gonzalez, No. CV
07–0940–PHX–DGC (JRI), 2010 WL 396361, at *7 (D. Ariz. Jan. 29, 2010) (citing
Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003) (other citation omitted)). The
jury found beyond a reasonable doubt that Cook caused Kata to believe that Cook would
cause him “serious physical harm,” and Cook cannot relitigate that issue in the context of
his § 1983 action. Cook’s aggravated menacing behavior entitled Kata to reasonably
assume that Cook posed an immediate threat to his safety. Even if Cook did not actually
have a gun, there is no evidence in the record that Kata knew that at the time. See Miller,
340 F.3d at 965 (uncertainty as to whether suspect possessed a gun, ignoring deputy’s
warnings, and darkness entitled deputy to assume that suspect posed an immediate threat
to his safety) (citation omitted). The second Graham factor weighs heavily in favor of
Kata.
The third Graham factor considers whether the suspect was actively
resisting or attempting to avoid arrest by flight. In this case, the parties agree that Cook
was walking away from Kata, but their testimony as to the reason Cook was walking
away is in conflict. Cook states that he was walking away from Kata to meet the Ohio
State Highway Patrol. Kata states that he believed Cook was walking to the shed to
obtain a gun and ignored Kata’s commands to stop. Both Cook and Kata testified
regarding these events at the criminal trial, but it is unclear whether that specific factual
determination was necessary to resolve in order for the jury to reach the conclusion that
Cook posed a serious threat of physical harm to Kata.
14

Cook points to Goodwin to support his argument that “[a] police office is
justified in tasing a suspect only when the suspect is engaged in “active resistance,” and
Cook’s conduct could not be construed as active resistance. (Opp’n at 642.) But the
Graham analysis does not hinge on a single factor, and the plaintiff’s argument does not
accurately reflect the analysis of the court in Goodwin. In Goodwin, the police responded
to a noise complaint at an apartment unit where a party was underway, resulting in two
tasings of, and injury to, the host of the party, Mr. Nall. The district court denied
defendants’ motion for summary judgment on qualified immunity and defendants
appealed. Applying the Graham analysis on appeal, the Sixth Circuit concluded that, the
facts viewed in a light most favorable to the plaintiffs showed that: (1) Mr. Nall’s crime
of disorderly conduct was not serious; (2) “there was little basis to believe Mr. Nall was a
threat to the officers or others”; (3) Mr. Nall’s “initial resistance” was at most passive
refusal to comply with a request to leave his apartment; and (4) it was “objectively
apparent” that Mr. Nall’s failure to present his hands to be cuffed was due to taserinduced involuntary convulsions. Goodwin, 781 F.3d at 325.
Goodwin is inapposite to the instant action and readily distinguished. First,
Cook’s crime—aggravated menacing—is a more serious offense than disorderly conduct.
Next, because of the preclusive effect of Cook’s conviction, there is no dispute that Cook
caused Kata to believe he faced serious physical harm. Third, even assuming that Cook’s
walking away from Kata did not constitute resistance, that fact alone is not dispositive of
the Graham analysis. See Kijowski v. City of Niles, 372 F. App’x 595, 600 (6th Cir. 2010)
(“Absent some compelling justification . . . such as the threat of immediate harm—the
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use of a [taser] on a non-resistant person is unreasonable.”) (citing Wysong v. City of
Heath, 260 F. App’x 848, 855 (6th Cir. 2008)). In the face of a threat of immediate harm
to officer safety, it is not objectively unreasonable to use a taser on a non-resistant
person. Id. (“[B]ecause [plaintiff] offered no resistance, [the officer’s] use of his Taser
cannot be considered reasonable without some other indication that [plaintiff] posed a
threat.”) (emphasis added). The “final step in the Graham analysis” requires that the
Court consider whether the totality of the circumstances justifies the force used.
Goodwin, 781 F.3d at 324. The Court finds that no reasonable jury could conclude, under
the totality of the circumstance, that it was objectively unreasonable for Kata to deploy
his taser in the face of the threat of serious physical harm posed by Cook.
Accordingly, given the specific facts of this case—and particularly in light
of Cook’s conviction for aggravated menacing arising from his encounter with Kata—
the Court holds as a matter of law that Kata’s use of force was objectively reasonable
under the Graham analysis and did not violate Cook’s rights under the Fourth
Amendment. Therefore, Kata is entitled to summary judgment on Cook’s excessive force
claim. Because no constitutional violation occurred, Kata is also entitled to qualified
immunity as to Cook’s excessive force claim.
E. Warrantless Search Claim
The Fourth Amendment of the United States Constitution provides that:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
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The protections of the Fourth Amendment turn on the occurrence of a
search, and a search is defined in terms of a person’s “reasonable expectation of privacy.”
Widgren v. Maple Grove Township, 429 F.3d 575, 578 (6th Cir. 2005). A person’s
reasonable expectation of privacy is analyzed under a two-part test articulated by the
Supreme Court in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 90 L. Ed. 2d 210
(1967). Id. First, the Court must determine whether “the individual manifested a
subjective expectation of privacy in the object of the challenged search[,]” and second,
“is society willing to recognize that expectation as reasonable?” Id. (quoting California v.
Ciraolo, 476 U.S. 207, 211, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986)).
There is no dispute that Kata came to Cook’s residence on June 13, 2013
without a warrant solely to obtain VINs from “junk” vehicles on Cook’s property. Cook
alleges that this violated his rights under the Fourth Amendment.
Kata contends that he is entitled to summary judgment based upon the
“open fields” exception to the Fourth Amendment’s warrant requirements. Cook argues
that the open fields exception to the Fourth Amendment does not apply because Cook’s
residential property is “not massive” and a reasonable person could conclude that Cook
had an expectation of privacy as to all of his property. Cook also argues that even if the
vehicles were located in an “open field” for purposes of Fourth Amendment analysis, the
subject of Kata’s “search” was the VINs, which Kata testified were not in plain view
(Kata Dep. at 280), and a reasonable person could conclude that Cook had a legitimate
privacy interest in the vehicles. (Opp’n at 640.).

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1. Open fields doctrine and curtilage
An exception to the protection of the Fourth Amendment’s requirement
for a warrant is the open fields doctrine, which “was founded upon the explicit language
of the Fourth Amendment. That amendment indicates with some precision that places and
things encompassed by its protections. . . . ‘[T]he special protection accorded by the
Fourth Amendment to the people in their persons, houses, papers, and effects, is not
extended to open fields. The distinction between the latter and the house is as old as the
common law.’” Oliver v. U.S., 466 U.S. 170, 176, 104 S. Ct. 1735, 80 L. Ed. 2d 214
(1984) (quoting Hester v. United States, 265 U.S. 57, 59, 44 S. Ct. 445, 68 L. Ed. 898
(1924) (some internal quotation marks omitted)).
No reasonable expectation of privacy exists in “open fields,” which
include unoccupied or undeveloped areas outside the curtilage. The curtilage of a home is
the area that “harbors the intimate activity associated with the sanctity of a man’s home
and the privacies of life.” United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134,
1139, 94 L. Ed. 2d 326 (1987) (internal quotation marks and citations omitted). In
determining whether an area is within a home’s curtilage, there are four factors to
consider: (1) the proximity of the area claimed to be curtilage to the home; (2) whether
the area is included within an enclosure surrounding the home; (2) the nature of the uses
to which the area is put; and (4) the steps taken by the resident to protect the area from
observation by people passing by. Dunn, 480 U.S. at 301.

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In support of his position on summary judgment that the open fields
exception to the Fourth Amendment applies, Kata advances his undisputed testimony that
when arriving on the scene, Kata parked his vehicle on the road and the “[v]ehicles are all
there right off the side of the road[.]” (Kata Dep. at 272.) Kata had to walk about “four
feet” onto Cook’s property to reach the vehicles 6 and there were approximately 20-25
vehicles. (Kata Dep. at 275-76.).
In response to defendant’s evidence advanced in support of the open fields
exception to the Fourth Amendment and summary judgment—that the area of Cook’s
property upon which nearly two dozen “junk” vehicles were parked was directly
proximate to the road—Cook’s sole argument that the area of his property upon which
the vehicles were located should be considered curtilage is that the property was “not
massive” and in a residential area, and a reasonable person could conclude that Cook had
a reasonable expectation of privacy as to all of the subject property. (Opp’n at 640.) But
in his conclusory argument, Cook has advanced nothing to create a dispute of fact as to
whether the area where the “junk” vehicles were parked was in proximity to the house, or
whether it was associated with the intimacies and sanctities of private life, or used for any
domestic purpose. Widgren, 429 F.3d at 582 (mowed area used for activities and
privacies of domestic life as manifested by presence of a picnic table and fire pit).
Nothing in the record indicates that the area at issue, which was about four feet from the
road, was included within an enclosure surrounding Cook’s home or protected in any way
from public view.

6

Trespass is not determinative of a Fourth Amendment search. Widgren, 429 F.3d at 583.
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Curtilage issues are decided on the “unique facts” of each case. U.S. v.
Anderson-Bagshaw, 509 F. App’x 396, 403 (6th Cir. 2012) (citing Daughenbaugh v. City
of Tiffin, 150 F.3d 594, 598 (6th Cir. 1998)). Applying the Dunn factors to the record
before it, the Court finds that no reasonable person could conclude that the area of Cook’s
property where the junk vehicles were parked was “so intimately tied to the home itself
that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection[]”
so as to constitute curtilage. Accordingly, the location of the junk vehicles falls within the
open fields exception to the Fourth Amendment. Dunn, 480 U.S. at 301. “[A]n individual
has no reasonable expectation of privacy in an ‘open field,’ the area outside a home’s
curtilage.” Anderson-Bagshaw, 509 F. App’x at 403 (citing Oliver, 466 U.S. at 179).
Even if the “junk” vehicle area was within the curtilage, Kata’s
presence—solely to obtain the VINs from the vehicles—was not so intrusive as to
constitute a search under the Fourth Amendment. There is no dispute that Kata did not
approach, touch, or look into Cook’s home, park in his driveway, or otherwise stray
beyond the area reasonably necessary to obtain the VINs. See Widgren, 429 F.3d at 58186 (The Fourth Amendment does not categorically bar all government encroachment on
curtilage, and purpose, nature, and extent of intrusion all must be considered.).
No reasonable person could conclude that Cook had a reasonable
expectation of privacy in the “junk” vehicle area, a mere four feet from the road, and
Kata’s entry onto Cook’s property at that location did not constitute a violation of the
Fourth Amendment. Accordingly, the Court concludes as a matter of law that Kata is

20

entitled to summary judgment on Cook’s warrantless search claim. Because no
constitutional violation occurred, Kata is also entitled to qualified immunity.
2. No reasonable expectation of privacy in VINs
In this case, it is undisputed that Kata’s “search” was solely directed at
obtaining the VINs from Kata’s vehicles. The Supreme Court has determined that there is
no reasonable expectation of privacy in a VIN. In New York v. Class, 475 U.S. 106, 106
S. Ct. 960, 89 L. Ed. 2d 81 (1986), two New York City police officers stopped a car for a
traffic violation. One of the officers opened the car door to look for the VIN on the
doorjamb, but it was not visible. The officer then reached into the vehicle to move papers
on the dashboard obscuring the area where the VIN would be located. In doing so, the
officer observed the handle of a gun protruding from under the driver’s seat and seized
the gun. Class, 475 U.S. at 106. The defendant moved to suppress the gun as evidence,
but the trial court denied the motion and defendant was convicted of criminal possession
of a weapon, and the Appellate Division of the New York Supreme Court upheld the
conviction. The New York Court of Appeals reversed, holding that there was no
justification for the search, and the police officer’s intrusion into the passenger
compartment of the vehicle to obtain the VIN was prohibited, thus the gun must be
excluded from evidence.
In reversing the New York Court of Appeals, the Supreme Court began by
discussing the important role the VIN plays in the government’s regulation of the
automobile, and that to “facilitate the VIN’s usefulness[,] federal law requires that the
VIN be placed in plain view from outside the vehicle.” Class, 475 U.S. at 111. In
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addition, the Supreme Court recognized that an individual has a lesser expectation of
privacy in their automobile than in their home because it serves as transportation and
“seldom serves as one’s residence or as the repository of personal effects[,]” and unlike a
home, is subject to “pervasive and continuing governmental regulation and controls[.]”
Id. at 112-13 (citation omitted). “A motorist must surely expect that such regulation will
on occasion require the State to determine the VIN of his or her vehicle, and the
individual’s reasonable expectation of privacy in the VIN is thereby diminished. This is
especially true of a driver who has committed a traffic violation.” Id. at 113 (citation
omitted). Accordingly, the Supreme Court held that “there was no reasonable expectation
of privacy in the VIN. We think it makes no difference that the papers in the respondent’s
car obscured the VIN from the plain view of the officer. . . . The mere viewing of the
formerly obscured VIN was not, therefore, a violation of the Fourth Amendment.” Id. at
114. Further, given that the officer’s intrusion into the interior of the vehicle was limited
to the space where the VIN was located to move the offending papers, the Supreme Court
held that the search was “sufficiently unintrusive to be constitutionally permissible in
light of the lack of a reasonable expectation of privacy in the VIN and the fact that the
officers observed respondent commit two traffic violations[.]” Id. at 118-19.
In this case, there is no dispute that Cook had received a notice and
summons regarding “junk” vehicles on his property, or that he attended a “pretrial”
conference with the prosecutor and Deputy Wix regarding removal of the “junk”
vehicles. (Tr. at 512-15.) There is also no dispute that Kata arrived at Cook’s property on
the day in question solely for the purpose of obtaining the VINs from the “junk” vehicles.
22

(Opp’n at 639-40 (“Everyone agrees that Kata’s sole reason for being on Cook’s property
was to check VINs for several inoperable vehicles located on the property.”).) The VINs
were not in plain view because of dirt on the windshields, and according to Kata, he
had to put a little spit on [his] finger and rub on the windshield to see what
the VIN number was because it had been there so long. It wasn’t like
going to a car lot and walk up to the window look in and get the VIN
number. There was a little effort to get the VIN number through the dirt.
(Kata Dep. at 283-84.)
Kata testified that he did not enter any of the vehicles to retrieve the VINs,
but opened the vehicle door to verify the VIN. (Kata Dep. at 279.) With respect to one of
the vehicles, Cook testified that Kata did enter the vehicle: Kata was “laying across the
front seat of my station wagon. I watched him rifle through the station wagon for a few
minutes and I asked him, “What are you doing?” (Cook Dep. at 343.) But even if Kata
was inside the vehicle, Cook does not contend that Kata was in the vehicle for any
purpose other than to obtain the VIN.
Cook had no reasonable expectation of privacy in the VINs of his
vehicles, and the fact that the VINs may have been obscured, or that Kata may have had
to enter a vehicle to obtain the VIN, is insufficient to create a privacy interest. Class, 475
U.S. at 112-14. Cook was noticed and summoned for violating Ohio Rev. Code §
4513.65. (Tr. at 612-16). Kata’s “search” of the vehicles was limited to obtaining the
VINs in connection with the violation and summons. Under these undisputed facts, the
Court concludes that Cook had no reasonable expectation of privacy in the VINs of his
“junk” vehicles, and Kata’s actions in obtaining the VINs from Cook’s vehicles without a
warrant were constitutionally permissible and did not violate the Fourth Amendment.
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Class, 476 U.S. at 119; Zerod v. City of Bay City, No. 03-10098-BC, 2006 WL 618874, at
*12-13 (E.D. Mich. Mar. 9, 2006) (no reasonable expectation of privacy in VIN and
Fourth Amendment not violated when officer’s purpose and actions were to obtain VINs
in connection with nuisance citation).
For these reasons, Kata did not violate the Fourth Amendment by
obtaining the VINs without a warrant. Accordingly, for this additional reason, Kata is
entitled to summary judgment on Cook’s warrantless search claim, and to qualified
immunity.
F. Assault Claim
Finally, Kata is entitled to summary judgment on Cook’s state law assault
claim. (Compl. ¶ 7.).
Assault in Ohio is a willful threat or attempt to harm or touch another
offensively placing that person in fear of such contact, and battery is an intentional
contact that is harmful or offensive. Stafford v. Columbus Bonding Ctr., 896 N.E.2d 191,
200 (Ohio App. Ct. 2008) (citations omitted). But police officers are privileged to commit
battery when making a lawful arrest, although the privilege is negated by the officer’s use
of excessive force. Alley v. Bettencout, 730 N.E.2d 1067, 1073 (Ohio App. Ct.1999). In
this case, the Court has concluded that Kata did not use excessive force in deploying his
taser. Therefore, pursuant to the privilege, Kata is entitled to summary judgment on
plaintiff’s assault claim. Cf. Martin v. City of Broadview Heights, No. 1:08 CV 2165,
2011 WL 3648103, at *14 (N.D. Ohio Aug. 18, 2011) (defendants not entitled to
summary judgment on plaintiff’s assault and battery claim on the basis of privilege
24

because plaintiff’s have presented evidence of excessive force) (citing Alley, 730 N.E.2d
at 1073).
Further, Kata is immune from suit pursuant to Ohio Rev. Code §
2744.03(A)(6).7 That section provides in relevant part that:
(A) In a civil action brought against a political subdivision or an employee
of a political subdivision to recover damages for injury, death, or loss to
person or property allegedly caused by any act or omission in connection
with a governmental or proprietary function, the following defenses or
immunities may be asserted to establish nonliability:
***
(6) . . . the employee is immune from liability unless one of the following applies:
(a) The employee's acts or omissions were manifestly
outside the scope of the employee's employment or official
responsibilities;
(b) The employee's acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner;
(c) Liability is expressly imposed upon the employee by a
section of the Revised Code.
In opposing immunity for Kata under this section, Cook does not contend
that Kata was acting manifestly outside the scope of his employment or that any liability
is expressly imposed upon Cook by another section of the Ohio Revised Code. Rather,
Cook contends that Kata is not entitled to such immunity because, crediting Cook’s
version of events, Kata’s use of a taser on an unarmed man constituted malicious conduct
and a wanton infliction of pain. (Opp’n at 643 (“[T]asing an unarmed man who is not

7

The Political Subdivision Tort Liability Act is applicable to Kata as a deputy of the Trumbull County
Sheriff’s department. See Young v. Summit Cnty., 588 N.E.2d 169 (Ohio App. Ct. 1990).
25

threatening an officer amounts to wanton infliction of pain.” (emphasis in original)).) But
Cook was convicted of causing Kata to believe that Kata faced serious physical harm,
and Court has determined that Kata’s use of the taser was objectively reasonable under
the circumstances and did not constitute excessive force. Accordingly, Kata is entitled to
immunity on Cook’s state law assault claim pursuant Ohio Rev. Code § 2744.03(A)(6).
III. CONCLUSION
For the reasons contained herein, defendant’s motion for summary
judgment on plaintiff’s federal and state law claims is granted. Accordingly, this action is
dismissed.
IT IS SO ORDERED.

Dated: November 10, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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