Ruble v. Escola et al
Filing
54
Memorandum Opinion and Order For the aforementioned reasons, the Court denies England's motion for qualified immunity as to the false arrest claim pursuant to § 1983 and the state law false arrest claim. The Court grants the remaind er of England's motion. The Court grants Escola's motion for qualified immunity and summary judgment in its entirety. The Court also grants Perry Township's motion for summary judgment in its entirety. (ECF Nos. 37 , 38 , 42 ). Accordingly, this case proceeds only on the § 1983 and false arrest claims against Defendant England. Judge Benita Y. Pearson on 9/28/2012. (S,L)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MATTHEW D. RUBLE,
Plaintiff,
v.
TIMOTHY E. ESCOLA et al.,
Defendants.
)
)
)
)
)
)
)
)
)
CASE NO: 5:09CV02173
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER (Resolving ECF Nos. 37, 38, and
42)
(5:09CV02173)
I. Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. The Burglary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. The Investigation of Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. The Photo Line-Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. The Arrest Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. The Arrest of Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
D. Plaintiff’s Causes of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
II. Legal Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
III. Discussion: Constitutional Law Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. Deprivation of a Constitutional Right: False Arrest and False Imprisonment . . . . . 13
1. Establishing a Claim of False Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
a. Fourth Amendment Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
b. Role of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
2. Defendants Could Not Rely Upon Griffin’s Statements . . . . . . . . . . . . . . . . . 14
3. Garletts’ Photo Line-up is Improper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4. The Warrant Was Not Valid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
a. England Violated Plaintiff’s Constitutional Right . . . . . . . . . . . . . . . 20
b. Escola Did Not Violate Plaintiff’s Constitutional Right . . . . . . . . . . .
21
5. The Constitutional Right Was Clearly Established . . . . . . . . . . . . . . . . . . . . 22
B. Deprivation of a Constitutional Right: Malicious Prosecution . . . . . . . . . . . . . . . . 23
1. Establishing a Claim of Malicious Prosecution . . . . . . . . . . . . . . . . . . . . . . . 23
2. Probable Cause for the Criminal Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . 24
D. Perry Township’s Policy or Custom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1. “Official Policy” Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
a. Ohio Revised Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
b. Local Practice and Custom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2. The Policy: Inadequate Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3. The Policy: Inadequate Supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4. The Policy: Inadequate Hiring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
IV. Discussion: State Law Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
A. State Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
B. False Arrest/False Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
C. Malicious Prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
D. Abuse of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
E. Intentional Infliction of Emotional Distress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
F. Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
G. Civil Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
2
(5:09CV02173)
Plaintiff Matthew Ruble (“Ruble” or “Plaintiff”) filed the present action against
Defendants former Chief of Police for the Perry Township Police Department Timothy Escola
(“Escola”), former part-time police officer Janine England (“England”), and the Board of
Trustees for Perry Township, Stark County, Ohio (“Perry Township”) (collectively
“Defendants”), claiming ten causes of action pursuant to 42 U.S.C. § 1983 and Ohio State law.1
ECF No. 16. Defendants removed the case to this Court on September 18, 2009 on the basis of
federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441. ECF No. 1.
Before the Court are Defendants’ motions for summary judgment, pursuant to Fed. R.
Civ. P. 56(c). ECF Nos. 37, 38, 42.
For the reasons that follow, the Court denies in part Defendant England’s motion for
qualified immunity and state immunity. The Court grants Defendant Escola’s motion for
qualified immunity and remaining summary judgment motion and grants Perry Townships’
motion for summary judgment.
I. Background
A. The Burglary
The events giving rise to this case began when Defendant England, a newly hired parttime Perry Township police officer, was dispatched to a private home to investigate a reported
burglary.2 ECF No. 16 at 3. Several days after the investigation, the burglary victim reported
1
Timothy Escola was Chief of Police with Perry Township Police Department from May
of 2005 until June of 2009. ECF No. 32 at 5.
2
At this point, England was “an officer in training” and accompanied by Officer Jason
Fisher. ECF No. 32 at 19. She had recently been hired by Escola. ECF No. 32 at 6. Plaintiff
3
(5:09CV02173)
that an unauthorized person cashed one of his personal checks. ECF No. 16 at 3. A copy of the
personal check and a surveillance photograph revealed that Richard Griffin had fraudulently
cashed the victim’s check. ECF No. 16 at 3. Escola and England presented a photo line-up to
the bank teller, Julia LeFever, who positively identified Griffin. ECF Nos. 16 at 3; 32 at 21; 36
at 19.
After obtaining a positive photograph identification, England located Griffin outside his
apartment, advised him of his Miranda rights, and questioned him about the personal check and
the burglary. ECF Nos. 16 at 4; 36-5. Griffin claimed that he received the personal check in
exchange for the sale of a four-wheeler. ECF Nos. 16 at 4; 36-5. Immediately thereafter, Griffin
revised his response by admitting that he was a heroin addict and cashed the check to purchase
heroin.3 ECF Nos. 16 at 4-5; 36-5. When asked about the burglary, Griffin “adamantly denied
any involvement and said [that] he was at work. Again, very quickly [Griffin] recanted his story
and told [Officer England that] he drove Matthew Ruble to the home . . . and Matthew went into
the home while [Griffin] was on the ‘look out.’” ECF Nos. 16 at 5; 36-5. The next day, Griffin
completed a written statement and, thereafter, was arrested and booked. ECF Nos. 16 at 5-6; 36alleges an inappropriate relationship between the two started shortly after England’s hiring based
upon the amount of time the two were spending together and documented emails between them.
ECF No. 43 at 2-3. Escola testified that there were rumors around the police department that
they were having an affair. ECF No. 32 at 16. England, when asked about rumors of an affair,
did not recall such rumors but added “[a]ll I do know is that it was very evident that there were
females I worked with [that] had a very serious issue with me” but she did not know why. ECF
No. 36 at 13. Escola and England deny they were having an inappropriate relationship, the sole
exception being the events that occurred on the return trip from Cincinnati. ECF Nos. 32 at 15;
36 at 60.
3
England’s police report notes that Griffin was “visibly crying and holding his face in
his hands when he said, ‘I need help, please get me help for my habit.’” ECF No. 36-5.
4
(5:09CV02173)
5.
B. The Investigation of Plaintiff
Upon information and belief of his criminal involvement in the burglary, Escola and
England began to investigate Plaintiff. Plaintiff’s criminal history showed only traffic violations.
ECF Nos. 16 at 6; 32 at 30; 36 at 29. The officers spoke with several witnesses regarding
Plaintiff’s alleged criminal activities. ECF Nos. 32 at 30-31; 36 at 38. In contrast to the near
meticulous records kept in the Griffin investigation,4 the officers testified that neither
documented the witnesses’ names or addresses, nor did they take a written statement or include
the information in the police report. ECF Nos. 32 at 31; 36 at 31, 36, 38.
Plaintiff contacted the Perry Township Police and informed England, via telephone, that
he resides in Cincinnati, Ohio and works at Ziegler Tire in Monroe, Ohio. ECF Nos. 16 at 6; 36
at 29, 36. Plaintiff spoke to England and agreed to meet with her over the weekend to avoid
missing work. ECF Nos. 16 at 6; 36 at 36. England did not document her conversation with
Plaintiff, and Plaintiff failed to attend the meeting. ECF No. 36 at 36. The plant manager at
Ziegler Tire faxed Plaintiff’s time cards to Escola, indicating Plaintiff was at work the day of the
burglary, and also included a written note inviting the officers to telephone the plant if the
4
See ECF Nos. 32-3 (incident report); 32-4 (narrative supplement); 32-5 and 32-6
(narrative supplement); 32-8 (copy of forged personal check); 32-9 (surveillance camera
photograph); 32-10 and 32-11 (bank teller photo line-up form); 32-12 (bank teller’s statement);
32-14 (description of Griffin); 32-15 (Griffin’s criminal history); 32-17 (Griffin’s background
information); 32-23 (statement from Griffin’s ex-girlfriend explaining that Griffin currently
drives her blue Dodge Neon automobile); 32-25 (copy of forged personal check); 32-26 (copy of
forged personal check); 32-27 (copy of forged written check); 36-27 (Griffin’s statement
regarding burglary); 36-28 (Griffin’s statement admitting that he forged five personal checks).
5
(5:09CV02173)
officers had any questions. ECF No. 44 at 7. The officers did not telephone the plant manager
to verify the time cards. ECF No. 44 at 7. What happened next is in dispute.
1. The Photo Line-Up
England returned to the neighborhood where the burglary occurred to canvass the area
and talk to the neighbors in accordance with Escola’s instruction. ECF Nos. 32 at 35-36; 36 at
42. England independently assessed a photo line-up with Garletts. ECF No. 36 at 42. During
the photo line-up, Garletts allegedly communicated to England that she “was doubtful for several
reasons: I couldn’t see his face, it was far away and there was a tree in the way.” ECF No. 34
at 6. Despite Garletts’ doubt, England instructed Garletts to “put down a percentage as to how
sure you are.” ECF No. 34 at 14. Garletts wrote, “I would have to say I’m about 80 to 90
percent sure this is the person I saw.” ECF Nos. 34 at 14; 36-35.
In contrast, England testified that Garletts “absolutely” did not indicate that she had
difficulty making the selection. ECF No. 36 at 45. In her narrative report of the photo line-up,
England wrote the following:
I compiled a photo line up of six white males in their late twenties and presented
the line up to Theresa Garletts. Within the first five seconds Theresa picked out
Matthew D. Ruble as who she witnessed walk up to the residence that was
burglarized on the 13th of May 2009. In speaking with Teressa [sic] she stated she
was 80-90% sure she was picking out the right person. She went on to say she
had slight doubt only because there was approximately [a] hundred yards between
her kitchen window and the front porch of 174 Woodlawn; the residence, which
was burglarized. It was a clear sunny day with no adverse conditions. Theresa
stated her eyesight is good and she was comfortable in picking out Matthew D.
Ruble as the man she said at 174 Woodlawn Ave. NW in Perry Township.
ECF No. 33-3 at 9-10.
6
(5:09CV02173)
2. The Arrest Warrant
After the photo line-up, Escola and England met with Prosecutor Anthony LaPenna to
seek an arrest warrant for Plaintiff. The officers provided LaPenna with the following evidence:
(1) the statement from Griffin and (2) the statement from Garletts and the photo line-up form.
ECF No. 32 at 37. Defendant Escola testified that he also verbally informed LaPenna about
Plaintiff’s faxed time sheets. ECF No. 32 at 37. In response, Esola testified that LaPenna said,
“You’ve got more than enough to charge him . . . [t]hat’s evidence they can bring to court in
their defense.” ECF No. 32 at 37. LaPenna subsequently authorized the issuance of an arrest
warrant for Plaintiff.
C. The Arrest of Plaintiff
Plaintiff was arrested on June 2, 2009 by the local police in accordance with the warrant
issued by LaPenna. ECF No. 16 at 11. Escola and England then traveled approximately three
and one-half hours to Ziegler Tire in Monroe, Ohio.5 ECF No. 16 at 11. Upon arrival at Ziegler
Tire, the officers took written statements from plant manager, Gregory Couch, who verified that
Plaintiff was “present at work (Ziegler Tire–Monroe, OH) on the days that he is clocked in on
his personal timecard.” ECF Nos. 36 at 56; 36-51. Ziegler assistant manager, Eric Harbin, also
provided a written statement explaining that “Matt Ruble was at Ziegler [T]ire in Monroe[,]
Ohio on May 13 Wednesday at 4:02 a.m. till 2:46 p.m. And I’m saying that I drove him to work
5
Plaintiff alleges Escola and England had a “preconceived plan” to go to Cincinnati to
pick up Plaintiff. ECF No. 44 at 9. Escola testified they did not know until that morning that
Plaintiff was arrested and that, because they were operating near capacity, the local police could
not hold him. ECF No. 33 at 17.
7
(5:09CV02173)
every day since he has started. And I’m 100% sure that Matt has not missed any day of work on
any day.” ECF No. 36-53.
After leaving Ziegler Tire, Escola and England went out to dinner, then met Escola’s
daughter’s family at a local soccer field where Escola’s grandchildren were practicing. ECF No.
43 at 9. Later in the evening, Escola and England drove to the jail to pick up Plaintiff and drive
back to Stark County, Ohio. ECF No. 43 at 9. Unbeknownst to Escola and England, a video
camera that was installed inside the police cruiser had been turned on before their departure from
Perry Township, and the video revealed that on the return trip, Escola and England were “kissing
and caressing one another.” ECF Nos. 43 at 9; 33 at 25; 36 at 60. Upon arrival, Plaintiff was
delivered to the county jail. ECF No. 43 at 10.
The next morning, the officers returned to Stark County Jail to speak with Griffin. ECF
No. 16 at 12. Griffin recanted his previous statement regarding Plaintiff’s involvement in the
burglary and wrote a new statement. ECF Nos. 36-55; 36-56. Plaintiff was later released and
the charges were dropped. ECF Nos. 16 at 12; 36 at 59.
D. Plaintiff’s Causes of Action
Based upon these events, Plaintiff asserted the following causes of action: (1) false arrest
claims under 42 U.S.C. § 1983 and state law; (2) malicious prosecution claims under 42 U.S.C. §
1983 and state law; (3) state law claim for false imprisonment; (4) state law claim for abuse of
process; (5) state law claim for intentional infliction of emotional distress; (6) state law claim for
defamation; (7) state law claim for civil conspiracy; (8) violation of the Fourth, Fifth, and
Fourteenth Amendments under 42 U.S.C. § 1983; (9) a claim for deliberate inadequate training,
8
(5:09CV02173)
supervising, and hiring under 42 U.S.C. § 1983; and (10) state law claim for punitive damage.
ECF No. 16 at 12-20. Specifically, Plaintiff alleges that Escola and England were having an
inappropriate relationship during the time they investigated Plaintiff, and that the decision to
arrest Plaintiff was made without probable cause and in furtherance of a “conspir[acy] to falsify
evidence against Matthew Ruble to justify a day long trip together to the Cincinnati, Ohio area.”
ECF No. 16 at 7.
Defendants have separately filed motions for summary judgment. ECF Nos. 37, 38, 42.
Defendant Perry Township’s motion for summary judgment seeks a ruling solely based upon the
merits. ECF Nos. 51, 37. The § 1983 claims against the officers in their official capacity is the
equivalent of a claim against Perry Township, and is governed by Monell v. New York City
Dep’t. of Soc. Servs, 436 U.S. 658, 691 (1978). See Brown v. Karnes, Case No. 2:05CV555,
2005 WL 2230206, at *3 (S.D. Ohio Sept. 13, 2005). The officers have moved for summary
judgment based upon the merits of Plaintiff’s state and federal claims in their official capacities.
ECF Nos. 38, 42. The officers have also motioned for qualified immunity to the extent the Court
considers any of Plaintiff’s allegations against them in an individual capacity as well. ECF Nos.
52, 53. Because the briefings sufficiently indicate proper notice to the officers that they were
being sued in their individual as well as official capacity, we consider the officers’ claims of
qualified immunity as to § 1983 claims against them in their individual capacities.6 See Moore v.
City of Harriman, 272 F.3d 769, 772 (6th Cir. 2001) (“while it is clearly preferable that plaintiffs
6
The parties addressed qualified immunity issues in their briefings. ECF No. 38 at 11;
42 at 11; 44 at 17-18.
9
(5:09CV02173)
explicitly state whether a defendant is sued in his or her ‘individual capacity,’... failure to do so
is not fatal if the course of proceedings otherwise indicates that the defendant received sufficient
notice.”)
II. Legal Standard
Federal Rule of Civil Procedure 56(c) governs summary judgment motions, and provides
in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a mater of law . . . .
The movant, however, is not required to file affidavits or other similar materials negating
a claim on which its opponent bears the burden of proof, so long as the movant relies upon the
absence of the essential element in the pleadings, depositions, answers to interrogatories, and
admissions on file. Celotex, 477 U.S. at 317.
Upon review, the Court must view the evidence in light most favorable to the nonmoving party to determine whether a genuine issue of material facts exists. Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970); see also White v. Turfway Park Racing Ass’n., 909 F.2d 941,
943-44 (6th Cir. 1990). A fact is “material” only if its resolution will affect the outcome of the
lawsuit. Anderson, 477 U.S. at 248. Determination of whether a factual issue is “genuine”
requires consideration of the applicable evidentiary standards. Thus, in most civil cases, the
Court must decide “whether reasonable jurors could find by a preponderance of the evidence that
the [non-moving party] is entitled to a verdict.” Id. at 252.
Summary judgment is appropriate whenever the non-moving party fails to make a
10
(5:09CV02173)
showing sufficient to establish the existence of an element essential to that party’s case and on
which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. Cross-motions
for summary judgment are examined under the usual Rule 56 standards. Spectrum Health
Continuing Care Group v. Anna Marie Bowling Irrevocable Trust, 410 F.3d 304, 309 (6th Cir.
2005). Each cross-motion must be evaluated on its own merits, with the court viewing all facts
and reasonable inferences in the light most favorable to the nonmoving party. Appoloni v. U.S.,
450 F.3d 185, 189 (6th Cir. 2006).
Moreover, “the trial court no longer has a duty to search the entire record to establish that
it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472,
1479-80 (6th Cir. 1989) (citing Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir.
1988)). The non-moving party is under an affirmative duty to point out specific facts in the
record as it has been established that create a genuine issue of material fact. Fulson v.
Columbus, 801 F.Supp. 1, 4 (S.D. Ohio 1992). The non-movant must show more than a scintilla
of evidence to overcome summary judgment; it is not enough for the non-moving party to show
that there is some metaphysical doubt as to material facts. Id.
III. Discussion: Constitutional Law Violations
Title 42 U.S.C. § 1983 imposes liability against
[e]very person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws . . . .
“[We] engage[ ] in a two-pronged inquiry when considering a municipal-liability claim.”
11
(5:09CV02173)
Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 606-07 (6th Cir. 2007)
(quoting Cash v. Hamilton Cnty. Dep’t of Adult Prob., 388 F.3d 539, 542 (6th Cir. 2004)).
Courts must first ask whether the plaintiff has asserted the deprivation of a right guaranteed by
the United States Constitution or federal law. Powers, 501 F.3d at 607 (citing Cash, 388 F.3d at
542); see Alkire v. Irving, 330 F.3d 802, 813 (6th Cir. 2003).7 Second, courts must analyze
whether the alleged deprivation was caused by the defendants acting under color of state law.8
Powers, 501 F.3d at 607 (citing Cash, 388 F.3d at 542); Alkire, 330 F.3d at 813.
A municipality cannot be liable for the constitutional torts of its employees; that is, it
cannot be liable on a respondeat superior theory. Monell, 436 U.S. at 691. Rather, liability will
attach only where the plaintiff establishes that the municipality engaged in a “policy or custom”
that was the “moving force” behind the deprivation of the plaintiff’s rights. Id. at 694.
7
The Court notes the Sixth Circuits interchangeable use of the words “assert[]” and
“establish” in the first prong of the two-pronged inquiry when considering a municipal-liability
claim. See Alkire, 330 F.3d at 813 (“To state a § 1983 claim, Alkire must establish (a)
deprivation of a right secured under the Constitution or federal law; and (b) that deprivation was
caused by a person acting under color of state law.”). In accordance with U.S. Supreme Court
precedent, the Court requires Plaintiff to “establish” that he was deprived of a right secured by
the Constitution or laws of the United States. See Flagg Bros. v. Brooks, 436 U.S. 149, 155
(1978).
8
In order to establish liability under § 1983, the plaintiff must prove that she has been
deprived of a federal statutory or constitutional right by someone acting “under color of” state
law. Parratt v. Taylor, 451 U.S. 527, 535 (1981). The U.S. Supreme Court held that acts
performed by a police officer in his capacity as a police officer, even if illegal or not authorized
by state law, are acts taken “under color of” state law. Monroe v. Pape, 365 U.S. 167, 180
(1961). The record clearly shows that, in this case, the officers acted in their capacity as police
officers in the relevant events the lead to Plaintiff’s arrest. ECF No. 16 at 12-20.
12
(5:09CV02173)
A. Deprivation of a Constitutional Right: False Arrest
Plaintiff argues that Defendants violated a constitutional right based upon the Fourth
Amendment when Defendants falsely arrested him, imprisoned him and prosecuted him. ECF
No. 16 at 12-13. Plaintiff contends that the Defendants did not have probable cause to obtain a
warrant for arrest because the warrant was based upon statements made by an unreliable suspect
and a positive ID in a faulty photo line-up. ECF No. 16 at 12-13.
1. Establishing a Claim of False Arrest
a. Fourth Amendment Requirements
The Fourth Amendment protects individuals from unreasonable searches and seizures.
U.S. CONST. AMEND. IV; U.S. v. Torres-Ramos, 536 F.3d 542, 554 (6th Cir. 2008). “A false
arrest claim under federal law requires a plaintiff to prove that the arresting officer lacked
probable cause to arrest the plaintiff.” Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669,
677 (6th Cir.2005); see also Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir.2009).
When a plaintiff is arrested pursuant to a warrant, the plaintiff must show “that in order
to procure the warrant, [the officer] knowingly and deliberately, or with reckless disregard for
the truth, made false statements or omissions that created a falsehood and such statements or
omissions were material, or necessary, to the finding of probable cause.” Sykes v. Anderson, 635
F.3d 294, 305 (6th Cir. 2010) (citing Wilson v. Russo, 212 F.3d 781, 786-7 (3d Cir. 2000);
Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003)).
b. Role of the Court
When analyzing a Fourth Amendment claim, “[i]t is the Court’s duty to answer whether
13
(5:09CV02173)
the officer’s actions were objectively reasonable.” Jones v. Graley, 2008 WL 343087 *4 (S.D.
Ohio Feb. 6, 2008) (citing Scott v. Harris, 550 U.S. 372, 381 (2007) (“At the summary judgment
stage . . . once we have determined the relevant set of facts and drawn all inferences in favor of
the non-moving party to the extent supportable by the record . . . the reasonableness of [the
officer’s] actions . . . is a pure question of law.”)); Phillips v. Roane County, Tenn., 534 F.3d
531, 539 (6th Cir. 2008).
Employing this guidance, Plaintiff must show that he was arrested without probable
cause. In this case, Plaintiff alleges that there was insufficient probable cause to arrest him
because the officers relied upon a warrant that they knew was based upon false or misleading
statements that were the product of an improperly conducted photo line-up and unreasonable
reliance upon statements made by Griffin. ECF Nos. 43 at 14-17; 44 at 15-17.
2. Defendants Could Not Rely Upon Griffin’s Statements
Defendants argue that their reliance upon Griffin’s statements provide a substantial basis
for establishing probable cause. ECF Nos. 38 at 12-13; 42 at 8; 48 at 2-3. Plaintiff argues that
Griffin was unreliable because he lied on several occasions when questioned by the officers and
he had a lengthy criminal background. ECF No. 43 at 5.
A witness’ firsthand observations and written statement “are generally entitled to a
presumption of reliability and veracity” unless “there is an apparent reason for the officer to
believe that the eyewitness was lying, did not accurately describe what he has seen, or was in
some fashion mistaken regarding his recollection . . . .” Ahlers v. Schebil, 188 F.3d 365, 370
(6th Cir. 1999) (internal citations and quotations omitted). In the instant case, Plaintiff has
14
(5:09CV02173)
presented evidence that indicates an apparent reason for the officers to believe that Griffin was
lying.
When England initially located Griffin after the burglary, she noted he was “visibly
shaking, his hands were shaking uncontrollably and I saw the vain [sic] on his forehead
pulsating, indicative of very nervous behavior.” ECF No. 43 at 4. He changed his story twice in
that first conversation and ended by crying and saying “I need help, please get me help for my
[heroin] habit.” ECF No. 43 at 4-5.9 In addition to having a reasonable belief that Griffin
committed forgery and burglarized a home, a criminal background check revealed Griffin had a
long criminal history including charges of criminal damaging or endangering, assault,
aggravated burglary, obstructing official business, petty theft and aggravated burglary. ECF
Nos. 36 at 27; 36-15; 36-15. Escola defined “obstructing official business” as “something to
interfere with an investigation” such as misleading police officers. ECF No. 32 at 29. When
asked whether, as a police officer, Escola would rely upon anything Griffin said, Escola testified
in his deposition that he would not, and that is why they continued to investigate. ECF No. 32 at
25.
Shortly before his arrest, Griffin went to the police station to make a statement, whereby
he again implicated Plaintiff in the burglary. ECF No. 37-2. Escola and England allege that they
further investigated Griffin’s statements by “interviewing friends and associates of Plaintiff”
9
Griffin first claimed he had gone to the credit union to cash a check that a friend had
given him in payment for a four-wheeler, then confessed to being a heroin addict and using the
money from the check to purchase drugs, then said he had driven Matthew Ruble to the scene of
the crime and had stayed in the car while Ruble entered the home and committed the burglary.
ECF No. 43 at 4-5.
15
(5:09CV02173)
regarding Plaintiff’s alleged criminal activities. ECF Nos. 32 at 30-31; 36 at 38; 37 at 8. For
reasons even they cannot explain, Escola and England did not document the alleged character
witnesses names or addresses, nor did they take a written statement or include the information in
the police report. ECF Nos. 32 at 31; 36 at 31,36, 38. Escola and England both testified that
they met with four people who allegedly told them that if Griffin had committed a crime with
someone it was likely to have been with Plaintiff. ECF Nos. 32 at 32; 36 at 34. The people
interviewed, however, could not say exactly what Plaintiff had allegedly done in the past or
when he had done it. ECF No. 32 at 33. Defendants had established that Plaintiff did not have a
criminal record other than traffic violations. ECF No. 44 at 5.
Escola and England continued to investigate. Despite the plant manager at Ziegler Tire
faxing Plainitff’s time cards from the day of the burglary indicating Plaintiff was working near
Cincinnati and a note from the manager inviting Escola to call him if he had questions, Escola
did not call the plant manager or anyone else at Ziegler Tire10. ECF No.32 at 36. Instead, Escola
10
Escola asserts he did not call about the time cards because “[a]nybody can stamp
anybody’s time card.” ECF No. 32 at 36. Furthermore, Escola spoke to Ziegler Tire assistant
manager Eric Harbon, who verified Plaintiff was present at work on that date. Escolar
discounted Harbon’s account because he had been told by Harbon’s sister (one of the
undocumented interviewees) “not to believe Eric Harbon” and that “Eric would cover for
[Plaintiff].” ECF Nos. 32 at 36; 43 at 6-7; 44 at 7.
Failure to “investigate independently every claim of innocence” when executing an arrest
warrant is not required by the Constitution. Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir.
1988) (citing Baker v. McCollan, 443 U.S. 137, 145-6 (1979) and finding that “to hold otherwise
would be to allow every suspect, guilty or innocent, to avoid arrest simply by claiming ‘it wasn’t
me.’ And if the arresting officer failed to investigate such claims prior to arrest, the arrestee
could bring a section 1983 suit.”); See also Marx v. Gumbinner, 905 F.2d 1503, 1505-07 (11th
Cir. 1990) (same); Romero v. Fay, 45 F.3d 1472, 1477-8 (10th Cir. 1995) (no need to question
plaintiff’s alibi witnesses prior to arrest, citing Criss, Marx, and Baker); Brodnicki v. City of
Omaha, 75 F.3d 1261, 1264 (8th Cir. 1996) (“officers not required to conduct a mini-trial before
16
(5:09CV02173)
and England went back to the jail and asked Griffin to explain the apparent alibi of Plaintiff.
ECF No. 32 at 36. England asked Escola to interview Griffin because she was not sure she
should believe him. ECF No. 36 at 40. Griffin insisted he was telling the truth about Plaintiff.
ECF No. 32 at 36. Escola, after the interview with Griffin, testified that he told England “[i]t
sounds like he’s telling the truth to me” and testified in his deposition, “[b]ut still, just on that in
and of itself is not enough to arrest [Plaintiff] on.” ECF No. 32 at 35. Defendants clearly knew
that statements from a suspect with a history of obstructing police investigations, buffered by
unsubstantiated and undocumented rumors from some of Plaintiff’s associates, is not enough for
probable cause to arrest Plaintiff. This explains why they continued to investigate Plaintiff.
3. Garletts’ Photo Line-Up is Improper
Because of the need for more conclusive information, Escola instructed England to
canvass the neighborhood where the burglary took place for additional witnesses, and during that
time England conducted a photo line-up with Garletts. ECF No. 32 at 35; 36 at 42. Plaintiff
claims that the photo line-up positively identifying Plaintiff is not sufficient for probable cause
because England unduly influenced Garletts. ECF Nos. 43 at 7-9; 44 at 7-9; 45 at 3-4.
According to her deposition, Garletts’ account of England’s photo line-up assessment is
as follows:
[England] asked if she could speak to me about what happened, and I said sure. I
arresting”), cert. denied, 519 U.S. 867 (1996).
Furthermore, the record reflects that England, with the approval of Escola, was
improperly documenting her time cards so as to reflect she had not worked over her 39 hour a
week limit. ECF No. 33 at 22. Given his lackadaisical attitude towards the time cards, it is not
surprising that Escola prejudged it unprofitable to check Plaintiff’s time cards.
17
(5:09CV02173)
invited her in. We stood in my kitchen and she had–she wanted me to tell her
again about the description of the man. And she said–asked me, if I could, from a
lineup of six men, if I could pick out one. I told her I didn’t see his face. I told
her I couldn’t be positive about a positive ID. She said, ‘If you had to pick one,
which one would it be?’ So by process of elimination, according to size, weight,
it was only–the pictures were only from the chest up, I think, I just eliminated the
first three men that seemed too big. And then the last–pretty much it came down
to the last two. And I told her, ‘I just can’t pick between these two. I didn’t see
him. I didn’t see his face.’ And she’s, like, ‘Well, which one would you say you
most likely feel it would be?’ So I pointed to one individual and she said–I said,
‘I don’t know.’ And she said, ‘You’re right on target.’ I remember her saying
that.
ECF No. 34 at 5. Garletts communicated to England that she “was doubtful for several reasons:
I couldn’t see his face, it was far away and there was a tree in the way.” ECF No. 34 at 6.
Despite Garletts’ doubt, she testified that England instructed Garletts to “put down a percentage
as to how sure you are.” ECF No. 34 at 14. Garletts wrote, “I would have to say I’m about 80 to
90 percent sure [that] this is the person I saw.” ECF Nos. 34 at 14; 36-35.
When England completed her narrative report, she wrote that Garletts identified the
Plaintiff “[w]ithin the first five seconds.” ECF No. 33-3 at 9. Garletts disputes this (ECF No. 34
at 6) and so, apparently, does England.11 ECF No. 36 at 46.
Furthermore, England “forgot” the form that the witness must read and sign before
11
Q:
A:
In deposition, England was asked,
And it’s your indication that when you showed her the photo lineup, within five
seconds she immediately pointed to Matthew Ruble?
No. She ran – this is the lineup. She had the pen I gave her and she ran her finger
or the pen over it and she said, “that looks like him.”
ECF No. 36 at 45-6. It is not clear, then, why England wrote in her narrative that “[w]ithin the
first five seconds Theresa picked out Matthew Ruble...” or what part of the deposition questions
she was answering “no” to. ECF No. 33-3 at 9.
18
(5:09CV02173)
looking at the photographs. ECF No. 36 at 46. This paragraph is the paragraph that directs
witnesses in capital letters: “YOU MUST BE 100% POSITIVE.” ECF No. 37-2. Instead,
England testified she told Garletts to read the back of the form England had brought. ECF No.
36 at 46. England did not read it to Garletts, and Garletts testified she did not read it. ECF No.
34 at 6.12 Furthermore, England testified that Garletts did not circle number 6 after choosing
number 6, and England left Garletts’ house without having Garletts circle number 6 or otherwise
documenting number 6 as Garletts’ selection. ECF No. 36 at 46. Later, England had another
officer go back to Garletts’ house to have Garletts circle number 6. ECF No. 36 at 46.
The Garletts photo ID line-up, at best, did not follow proper procedure and, at worst,
resulted in England influencing the witness’ selection. Defendants make much of the fact that
Garletts chose Plaintiff, presumably to assert there was probable cause to arrest him based upon
the ID. However, the fact that Garletts chose Plaintiff, whom no one is alleging was at the house
that day, would seem to have the opposite effect of illustrating how a witness in a mishandled
photo ID line-up can be influenced to chose a particular suspect. The fact Garletts chose
Plaintiff, and did so amid the forgotten form, the unread instructions, Garletts’ expressed doubts
about her ability to do so and England’s alleged influence, would indicate that if the photo line-
12
The paragraph on the back of the form reads:
You will be asked to look at a group of photographs. The fact that the photographs are
shown to you should not influence your judgement [sic]. You should not conclude or
guess that the photographs contain the picture of the person who committed the crime.
You are not obligated to identify anyone. It is just as important to free innocent persons
from suspicion as to identify guilty parties. Please do not discuss the case with other
witnesses nor indicate in any way that you have identified someone.
ECF No. 37-2.
19
(5:09CV02173)
up were improper and unduly suggestive as Plaintiff alleges, it did not constitute probable cause.
4. The Warrant Was Not Valid
Defendants argue that a facially valid warrant is a defense to false arrest. ECF No. 42 at
12. However, when a warrant is issued based upon false or misleading statements or material
omissions made by a police officer applying for the warrant, this defense is not available to the
officers. Sykes, 635 F.3d at 305. The officers basis for probable cause is two-fold: (1) Griffin’s
statement and (2) Garletts’ photo line-up identification and statement. ECF No. 32 at 37. Upon
finding that the officers could not rely solely upon Griffin’s statement, the balance of the basis
for probable cause to arrest is Garletts’ photo line-up determination.
a. England Violated Plaintiff’s Constitutional Right
The conflicting testimony of England and Garletts presents several genuine issues of
material fact, including at a minimum: (1) whether Garletts’ had an obstructed view;13 (2)
whether Garletts had difficultly in selecting a photograph;14 (3) whether England influenced
Garletts;15 and, (4) whether England properly instructed Garletts before conducting the photo
13
Garletts explained to England that she did not see the male’s face and further
explained that she wears “glasses for distance” and the “huge tree in the front yard” blocked her
entire view of the male’s head. ECF No. 34 at 5. England’s narrative explains that “[i]t was a
clear sunny day with no adverse conditions [and] Theresa stated her eyesight is good . . . .” ECF
No. 33-3 at 9-10. Garletts testified she did not say her eyesight is good, that she wears glasses
for distance, and did not have them on at the time. ECF No. 34 at 6.
14
Garletts communicated to England that she “was doubtful for several reasons: I
couldn’t see his face, it was far away and there was a tree in the way.” ECF No. 34 at 6. In
contrast, England testified that Garletts “absolutely” did not indicate that she had difficulty
making the selection. ECF No. 36 at 45.
15
Garletts testified that she felt influenced during the photo line-up. ECF No. 34 at 5.
20
(5:09CV02173)
line-up.16 Given the discrepancies over what occurred and what appeared in England’s narrative
report, if Garletts’ testimony is true, England knowingly or recklessly provided false or
misleading statements that were material to procure a warrant for Plaintiff’s arrest. As noted
above, Griffin’s statements alone did not provide independent probable cause; therefore,
England did not have sufficient independent probable cause to arrest Plaintiff and may not rely
upon the warrant procured with allegedly false information. See, e.g., Jenkins v. City of New
York, 478 F.3d 76, 93 (2d Cir. 2007) (finding, in a § 1983 context, a photo line-up witness
testifying that the officers “were, like, you had to pick somebody...”rendered the photo line-up so
defective that it negated probable cause).
b. Escola Did Not Violate Plaintiff’s Constitutional Right
Escola was not present during Garletts’ photo ID, and Plaintiff has not presented
evidence that Escola knew of the alleged wrongdoing by England. England’s narrative report
reads that Garletts chose Plaintiff within the first five seconds, and there is nothing on the face of
16
According to Garletts’ testimony, England did not share with her the information setforth in the photo line-up ID form:
Q:
Okay. Did she, at any point, share with you any information that’s set
forth in this exhibit that says in the second–actually, the third sentence, it
says ‘You should not conclude or guess that the photographs contain the
picture of the person who committed the crime’? Did she ever share that
with you?
A:
No.
Q:
Likewise, did Officer England ever share with you information, or this
information, ‘You are not obligated to identify anyone’?
A:
She didn’t give me that option really.
Q:
What option did she give you?
A:
She said, ‘If you had to pick one, which one would it be?’
ECF No. 34 at 6-7.
21
(5:09CV02173)
that report to indicate improprieties. The written statement by Garletts that Garletts was “8090% sure” does not in-and-of itself negate probable cause. The prosecutor, having all the
information Escola had about the photo ID, determined probable cause existed.17 ECF No. 43 at
9. Plaintiff cannot show that Escola knowingly or with a reckless disregard for the truth
procured a warrant for Plaintiff’s arrest or knew the warrant was based upon allegedly false
information or a material omission. Escola had a good faith basis for relying upon the warrant,
and, thus, Escola is entitled to qualified immunity for the individual claim of false arrest. See
U.S. v. Leon, 468 U.S. 897, 923 (1984); United States v. Van Shutters, 163 F.3d 331, 337 (6th Cir.
1998).
5. The Constitutional Right Was Clearly Established
It has long been settled law that arresting a person without probable cause is
unconstitutional. U.S. CONST. AMEND. IV; Sykes, 625 F.3d at 305. Falsifying facts to establish
probable cause to arrest is unconstitutional. Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir. 1989);
Donta v. Hooper, 774 F.2d 716, 718 (6th Cir. 1985); Franks v. Delaware, 438 U.S. 154, 168
(1978). Relying upon a warrant obtained by false or misleading statements is unconstitutional.
Sykes, 625 F.3d at 305. Conducting an unduly suggestive line-up that results in a seizure without
probable cause is unconstitutional. Hutsell v. Sayre, 5 F.3d 996, 1005 (6th Cir. 1993)(finding that
while alleging an improper line-up without more is not a constitutional violation, there would be
17
The record reflects Esocla told Prosecutor LaPenna about the Plaintiff’s time cards and
that Escola had not called to confirmed them. ECF No. 32 at 37. Escola also pointed out
Garletts was only 80-90% sure, but felt comfortable picking out Plaintiff and did so within five
seconds. ECF No. 32 at 38.
22
(5:09CV02173)
a constitutional violation if the line-up was unduly suggestive and caused a violation of a known
right).
B. Deprivation of a Constitutional Right: Malicious Prosecution
Plaintiff argues that Defendants violated a constitutional right based upon the Fourth
Amendment when Escola and England maliciously prosecuted him. ECF No. 16 at 14.
1. Establishing a Claim of Malicious Prosecution
“The Sixth Circuit ‘recognize[s] a separate constitutionally cognizable claim of malicious
prosecution under the Fourth Amendment,’ which ‘encompasses wrongful investigation,
prosecution, conviction, and incarceration.’” Sykes, 625 F.3d at 308 (quoting Barnes v. Wright,
449 F.3d 709, 715-16 (6th Cir. 2006)). Malicious prosecution is “entirely distinct” from false
arrest, in that a malicious prosecution tort remedies detention accompanied by wrongful
institution of the legal process. Wallace v. Kato, 549 U.S. 384, 390 (2007).
In order to survive a motion for summary judgment against a malicious prosecution claim
pursuant to § 1983, a plaintiff must present a genuine issue of material fact as to the following:
First, the plaintiff must show that a criminal prosecution was initiated
against the plaintiff and that the defendant ma[d]e, influence[d], or participate[d]
in the decision to prosecute. Second, because a § 1983 claim is premised on the
violation of a constitutional right, the plaintiff must show that there was a lack of
probable cause for the criminal prosecution. Third, the plaintiff must show that,
as a consequence of a legal proceeding, the plaintiff suffered a deprivation of
liberty, as understood in our Fourth Amendment jurisprudence, apart from the
initial seizure. Fourth, the criminal proceeding must have been resolved in the
plaintiff's favor.
Sykes, 625 F.3d at 308-9 (citations omitted) (quoting Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir.
2007); Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007)).
23
(5:09CV02173)
2. Probable Cause for the Criminal Prosecution
Plaintiff argues Defendants lacked probable cause for the prosecution of Plaintiff
because, as in the false arrest context, the arrest warrant was obtained absent probable cause.
ECF No. 16 at 14. Defendants argue that they did not participate in the prosecution of Plaintiff,
and that, alternatively, there was sufficient probable cause to prosecute Plaintiff. ECF Nos. 38 at
11-14; 42 at 14.
The constitutional torts of malicious prosecution and false arrest are independent torts
based upon the Fourth Amendment. Thacker v. City of Columbus, 328 F.3d 244, 258-59 (6th
Cir. 2003) (finding that, at a minimum, a plaintiff must show “that there was no probable cause
to justify [his] arrest and prosecution.”)(citing Darrah v. City of Oak Park, 255 F.3d 301, 312
(6th Cir. 2001)). Nonetheless, Plaintiff’s malicious prosecution allegation stems from his false
arrest and imprisonment claim. ECF No. 44 at 19 (“The false arrest/ false imprisonment/
malicious prosecution causes all rest upon whether there was probable cause for Matthew
Ruble’s arrest.”). The morning after Plaintiff was arrested, he was released because Griffin
recanted his previous statement. ECF No. 44 at 10. Defendants dropped the initial charges
against Plaintiff, despite the prosecutor assuring them they still had enough to keep and
prosecute Plaintiff. ECF No. 44 at 10; 47 at 8. Plaintiff points to no evidence that shows
Defendants continued to prosecute Plaintiff after his detention– in fact, they released him. As
such, Plaintiff fails to state a claim of malicious prosecution, and England and Escola are entitled
to qualified immunity.
24
(5:09CV02173)
D. Perry Township’s Policy or Custom
Once a plaintiff has asserted a constitutional deprivation, liability under § 1983 will only
attach to a municipality if the municipal policy or custom proximately caused the constitutional
deprivation. Monell, 436 U.S. at 691; Collins v. City of Harker Heights, 503 U.S. 115, 122,
(1992); Ford v.Cnty of Grand Traverse, 535 F.3d 483, 495-96 (6th Cir. 2008). According to
Supreme Court decisional law, municipal liability may be based upon: (1) an express municipal
policy, such as a ordinance, regulation, or police statement, see Monell, 436 U.S. at 660-61; (2) a
“widespread practice that, although not authorized by written law or express municipal policy, is
‘so permanent and well settled as to constitute a custom or usage’ with the force of law,” see
City of St. Louis v. Praprotnick, 485 U.S. 112, 127 (1988) (internal quotation omitted); or (3) the
decision of a person with “final policy making authority,” see Praprotnick, 485 U.S. at 123; see
also Pembaur, 475 U.S. at 481-83. The following types of municipal polices and practices may
give rise to § 1983 liability:
(1)
Deliberately indifferent training, City of Canton v. Harris, 489 U.S. 378,
380 (1989);
(2)
Deliberately indifferent supervision or disciple, Gregory v. City of
Louisville, 444 F.3d 725, 751 (6th Cir. 2006); see Leach v. Shelby County
Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1990);
(3)
Deliberately indifferent hiring, Bd. of County Comm’rs v. Brown, 520 U.S.
397, 410-11 (1997); and
(4)
Deliberately indifferent failure to adopt policies necessary to prevent
constitutional violations, see Oviatt v. Pearce, 954 F.2d 1470, 1477 (9th
Cir. 1992).
Turning to the instant matter, Plaintiff alleges that Perry Township is liable based upon
25
(5:09CV02173)
the decision of a person with final policy making authority–Defendant Escola–for the deliberate
indifference of training and supervising the officers and hiring England. ECF No. 16 at 4; 7-8;
17; 18-19.
Plaintiff argues that Escola was acting as the decision maker with final authority on
policy matters relevant to the operations of the Perry Township Police Department, including:
[T]he power to control investigations conducted by the police department; the
power to limit or expand the course and scope of an investigation; the power to
end an investigation when the evidence clearly did not support a suspect’s guilt;
the power to control the conduction of photo line-ups; the power to order the
arrest of individuals including Plaintiff Matthew Ruble; the power to decide when
and how to arrest suspects, including Plaintiff Matthew Ruble; the power to
decide the means by which officers, including Defendant Escola and Defendant
England, were assigned to work on cases; and the power to assign officers,
including Defendant Escola and Defendant England, to pick up suspects held by
other police departments.
ECF Nos. 16 at 17.
1. “Official Policy” Requirement
Whether an official has final policymaking authority is an issue of law to be determined
by the court by reference to state and local law. Jett v. Dallas Indep. School Dist., 491 U.S. 701,
737 (1989). The Supreme Court held that a municipality can be liable under § 1983 for a single
decision by the municipality’s policymakers. Pembaur, 475 U.S. at 479-80. An official’s mere
authority to exercise discretion while performing particular functions does not make that official
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.2d 649, 655 (6th Cir. 1993) (citing Praprotnik, 485 U.S. at 127). To determine whether final
26
(5:09CV02173)
authority to make municipal policy is vested in a particular official, we must resort to state law.18
Pembaur, 475 U.S. at 483; Jett., 491 U.S. at 737. 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. Jett, 491 U.S. at 737.
a. Ohio Revised Code
The applicable Ohio law, R.C. § 737.06, states: “The chief of police shall have exclusive
control of the stationing and transfer of all patrolmen, auxiliary police officers, and other officers
and employees in the police department, and police auxiliary unit, under such general rules and
regulations as the director of public safety prescribes.” The applicable Ohio law reveals that the
chief of police is subordinate to the director of public safety. Plaintiff offers no regulations or
written procedures that indicate otherwise. Feliciano v. City of Cleveland, 988 F.2d 649, 655
(6th Cir. 1993) (finding that the City Charter of Cleveland and the Cleveland Code § 135.09(a),
the applicable Ohio law, revealed that the “Chief of Police is subordinate to the Director of
Public Safety[,]” and therefore, “plaintiffs have not shown that the Chief of Police has been
delegated the authority to make final policy regarding drug testing through Ohio positive law”).
The analysis does not stop here, for the Court must now consider Ohio procedure and custom.
Feliciano, 988 F.2d at 655 (citing Jett, 491 U.S. at 737); Pembaur, 475 U.S. at 481, n. 10.
b. Local Practice and Custom
The Supreme Court has long recognized that a “custom” is a widespread practice that,
18
The Supreme Court noted that “municipalities often spread policymaking authority
among various officers and official bodies.” Pembaur, 475 U.S. at 483.
27
(5:09CV02173)
although not authorized by written law, is “so permanent and well settled as to constitute a
‘custom or usage’ with the force of law.” Monell, 436 U.S. at 691.
Perry Township argues that the facts merely demonstrate that Escola has the
discretionary authority to act. ECF No. 37 at 13; Praprotnik, 485 U.S. at 126 (“If the mere
exercise of discretion by an employee could give rise to a constitutional violation, the result
would be indistinguishable from respondeat superior liability.”).
Generally, identifying a policymaking official is a question of law for the court to decide,
not one of fact to be submitted to a jury; however, the existence of a local practice or custom,
normally presents an issue of fact for the jury. Praprotnik, 485 U.S. at 124; Worsham v. City of
Pasadena, 881 F.2d 1336, 1344 (5th Cir. 1989). In the matter before the Court, Plaintiff raises a
genuine issue of material fact through Escola’s deposition testimony. Escola testified that he had
the power and control to order police investigations, conduct photo line-ups, and arrest suspects.
ECF No. 32 at 5. Escola also testified that his responsibility to oversee the operation of the
police department included duties “regarding policies and procedures.” ECF No. 32 at 5. In
accordance with Escola’s testimony, Plaintiff argues that Escola’s authority to seek an arrest
warrant for a suspect is without any oversight from Perry Township, and thus more than
discretionary.19 ECF No. 45 at 10. Plaintiff, through use of Escola’s testimony, has challenged
19
Escola’s testimony as to unconstrained decision making authority is as follows:
Q: Right. I understand. But, for example, if you decide you’re going to arrest
someone, you don’t have to go to the Trustees to get their approval?
A: No, I do not.
28
(5:09CV02173)
Perry Township’s argument that Escola has discretionary authority to act, thereby setting forth
facts showing the existence of a genuine issue–whether Escola had final policymaking authority.
See Beard v. Banks, 548 U.S. 521, 529 (2006). The Court will now turn to Plaintiff’s allegations
that Perry Township’s policies give rise to § 1983 liability.
2. The Policy: Inadequate Training
In City of Canton v. Harris, the Supreme Court held that deliberately indifferent training
may give rise to a § 1983 municipal liability. 489 U.S. 378 (1989). The Court found that “there
are limited circumstances in which an allegation of a ‘failure to train’ can be the basis for
liability under § 1983.” Id. at 387. The Court held that a § 1983 municipal liability may be
based upon inadequate training “only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact[,]” and that
deliberate indifference was the moving force of the violation of the plaintiff’s constitutional
right. Id. at 387. The plaintiff must demonstrate specific training deficiencies and either: (1) a
pattern of constitutional violations in which policymaking officials can be charged with
knowledge, or (2) that training is obviously necessary to avoid constitutional violations.20 Id. at
ECF No. 32 at 5.
20
The Court explained:
[I]t may happen that in light of the duties assigned to specific officers or
employees the need for more or different training is so obvious, and the
inadequacy so likely to result in the violation of constitutional rights, that the
policymakers of the city can reasonably be said to have been deliberately
indifferent to the need. In that event, the failure to provide proper training may
fairly be said to represent a policy for which the city is responsible, and for which
the city may be held liable if it actually causes injury.
29
(5:09CV02173)
390. The plaintiff must show that “the need for more or different training was so obvious, and
the inadequacy so likely to result in the violation of constitutional rights[,]” as to amount to a
municipal policy of deliberate indifference to citizens’ constitutional rights. Id. The Canton
Court held that negligent training does not by itself give rise to a § 1983 municipal liability
claim. Id. at 390-91. The plaintiff must also show a sufficiently close causal connection
between the deliberately indifferent training and the deprivation of the plaintiff’s constitutional
right. Id.
Defendant Perry Township argues that Plaintiff’s claim of inadequate training is merely
an allegation of “negligence.” ECF No. 37 at 18. Perry Township further asserts that there is no
evidence that it was indifferent to Plaintiff’s constitutional rights, that the officers had a history
or policy of making unlawful arrests, or that Perry Township was aware of such issues. ECF No.
37 at 18.
In response, Plaintiff argues that “Escola had never trained England on photo lineups
[and] Escola was [] the individual that Perry Township had entrusted with assigning police
officers to tasks and investigations.” ECF No. 45 at 17. Given this backdrop, Plaintiff avers that
a “reasonable jury could easily conclude that Escola, the Chief and Township official delegated
with training, knew that England was grossly incompetent to conduct a photo lineup.” ECF No.
45 at 17.
In reply, Perry Township argues that Plaintiff’s entire claim is based upon a single photo
Canton, 489 U.S. at 390 (internal footnotes omitted).
30
(5:09CV02173)
line-up that does not rise to the level of deliberate indifference on the part of Escola or Perry
Township. ECF No. 46 at 7. Perry Township explains that England had prior experience with
photo line-ups including the bank teller in the instant case, wherein Julia LeFever identified
Griffin as the man who cashed the stolen checks. ECF Nos. 46 at 7; 32 at 19, 20-21. Escola
conducted the line-up though England was present and Escola had England sign the forms. ECF
No. 37-2 at 8-9. Plaintiff points out that “England’s narrative report discusses the care that
Escola took to ensure that the lineup was conducted appropriately. Escola ‘clearly instructed
[the teller] to look through the pictures and take her time in doing so.’” ECF No. 44 at 4. For all
intents and purposes, it appears as though Escola properly ran a line-up in such a way that was
intended to train England and did have that result given England’s narrative report of the
appropriate steps taken by Escola. ECF No. 36-5.
Perry Township likewise emphasizes that there is no allegation that this first line-up was
flawed. ECF No. 46 at 8. Perry Township concludes that given Escola’s own experience with
England performing a photo identification line-up, as well as England’s prior experience with the
Montville Police Department and Medina County Sherif’s Department, it cannot be deduced that
Chief Escola or Perry Township acted with deliberate indifference. ECF No. 46 at 8.
The Canton Court ruled that a plaintiff must identify a particular deficiency in the
training program and prove that the identified deficiency was the cause of the plaintiff’s
constitutional injury. Canton, 498 U.S. at 390-91. The Court finds that Plaintiff merely alleged
that England was inadequately trained and that the conduct resulting in his injury could have
been avoided by more or better training. ECF No. 45. The Canton Court is clear that a plaintiff
31
(5:09CV02173)
will not prevail on such a theory. Canton, 498 U.S. at 390-91.
Plaintiff also failed to demonstrate municipal liability by way of a pattern of
unconstitutional conduct–the alternative approach to showing deliberate inadequate
training–because Plaintiff only identified a single photo line-up opposed to a pattern of improper
photo line-ups. In accordance with the notion that federal courts are not to become involved “in
an endless exercise of second-guessing municipal employee-training programs,” the Court finds
that Plaintiff’s allegations do not satisfy the stringent standards for fault (i.e., deliberate
indifference) and causation (i.e., moving force) and thus fail as a matter of law. The Court,
therefore, grants summary judgment as to inadequate training in favor of Defendants.
3. The Policy: Inadequate Supervision
In Gregory v. City of Louisville, the Sixth Circuit held that “[s]upervisory liability under
§ 1983 cannot attach where the allegation of liability is based upon a mere failure to act.” 444
F.3d 725, 751 (6th Cir. 2006) (internal citations and quotations omitted). The Gregory Court
explained that “the supervisors must have actively engaged in unconstitutional behavior [and]
liability must lie upon more than a mere right to control employees and cannot rely on simple
negligence.” Id. Stated differently,
[A] failure of a supervisory official to supervise, control or train the offending
individual[s] is not actionable absent a showing that the official either encouraged
or in some way directly participated in it. At a minimum a plaintiff must show
that the official at least implicitly authorized, approved or knowingly acquiesced
in the unconstitutional conduct of the offending [employees.]
Leach v. Shelby County Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1990). In order to sustain his
claim, Plaintiff must introduce evidence that Escola “implicitly authorized, approved or
32
(5:09CV02173)
acquiesced” in the alleged unconstitutional conduct.
In an effort to satisfy this requirement, Plaintiff alleges that “Chief Escola knew that
England had worked for the department for less than two months, and yet he was the one who
instructed her to return to conduct the photo lineup.”21 ECF No. 45 at 17. Plaintiff’s claim is
misplaced because the standard is not whether Escola implicitly authorized, approved or
knowingly acquiesced a photo line-up conducted by England, but rather whether Escola
implicitly authorized, approved or knowingly acquiesced unconstitutional behavior. Escola’s
reliance on the photo line-up to establish probable cause does not equate to implicitly
authorizing, approving or knowingly acquiescing unconstitutional conduct because Escola
testified and believed that England understood the proper procedure to conduct a photo line-up
and there was nothing on the face of the report of that line-up to indicate otherwise. ECF Nos.
38 at 4; 32 at 20-21. Plaintiff’s claim, at best, amounts to mere negligence instead of active
engagement in unconstitutional behavior. As a matter of law, the Court, therefore, grants
summary judgment as to inadequate supervision in favor of Defendants.
4. The Policy: Inadequate Hiring
In Board of County Commissioners v. Brown, the Supreme Court held that municipal
21
In the interest of thoroughness, the Court notes both Escola and England testified
under oath that Escola did not “instruct [England] to return to conduct the photo lineup.” ECF
No. 45 at 17. Rather, both Defendants testified that Escola instructed England to “canvas the
neighborhood” in order to ascertain whether there were witnesses that the initial canvassing had
failed to uncover. ECF Nos. 32 at 35; 36 at 42-3. The photo line-up was England’s idea but was
nevertheless proper procedure for an officer canvassing an area and finding a witness that had
seen the suspect. ECF Nos. 32 at 36; 36 at 42-3. Plaintiff has not alleged that is it improper
procedure for an officer canvassing an area to conduct a photo line-up after having located a
witness that saw the suspect.
33
(5:09CV02173)
liability can be premised upon a municipality’s deliberately indifferent hiring of a constitutional
wrongdoer, but only if the plaintiff demonstrates that the hired officer “was highly likely to
inflict the particular injury suffered by the plaintiff.” 520 U.S. 397, 412 (1997) (emphasis in
original). In order to “prevent municipal liability for a hiring decision from collapsing into
respondeat superior liability, a court must carefully test the link between the policymaker’s
inadequate decision and the particular injury alleged.”22 Id. at 410.
Plaintiff’s claim against Perry Township regarding how England was hired fails as a
matter of law because Plaintiff has failed to demonstrate that Escola’s decision to hire England
reflects a conscious disregard for a high risk that England would conduct an improper photo lineup to establish probable cause in violation of Plaintiff’s constitutional right. Without
elaboration, Plaintiff alleges that Escola “was the only person to interview England before she
was hired by Perry Township.” ECF No. 45 at 16. In accordance with the rigorous requirements
of culpability and causation, the Court finds that Plaintiff has not proffered any evidence
demonstrating that England “was highly likely to inflict the particular injury suffered” and,
therefore, grants summary judgment as to inadequate hiring in favor of Defendants.23 See
Brown, 520 U.S. at 405, 412.
Summary judgment in favor of Defendants is appropriate as to Plaintiff’s § 1983 Monell
claims because even if a constitutional violation and final policymaking authority is assumed,
22
In Brown, the Court distinguished Brown’s claim, involving a single lawful hiring
decision that ultimately resulted in a constitutional violation, from a claim that “a particular
municipal action itself violates federal law, or directs an employee to do so.” 520 U.S. at 405.
23
Plaintiff further fails to provide any evidence to the contrary that England had in fact
come highly recommended from her previous employers. ECF No. 32 at 9, 10-1.
34
(5:09CV02173)
Plaintiff did not produce evidence of an unconstitutional policy or custom that would support §
1983 liability. See Arendale v. City of Memphis, 519 F.3d 587, 601 (6th Cir. 2008)
(“[C]onclusory statements are not sufficient to survive any motion for summary judgment, much
less to allow a municipality to be held liable for the acts of its employees.”).
IV. Discussion: State Law Violations
Plaintiff alleges a number of state law claims against Defendants stemming from the
alleged conduct described above. “A federal court exercising supplemental jurisdiction over
state law claims [under 28 U.S.C. § 1367] is bound to apply the law of the forum state to the
same extent as if it were exercising its diversity jurisdiction.” Super Sulky, Inc., v. U.S. Trotting
Ass’n., 174 F.3d 733, 741 (6th Cir.1999); Chandler v. Speciality Tires of America (Tennessee),
Inc., 283 F.3d 818, 823 (6th Cir.2002). The federal court is to “apply state law in accordance
with the controlling decisions of the state supreme court.” Moore v. Detroit School Reform Bd.,
293 F.3d 352, 359 (6th Cir.2002). When the state’s highest court has not decided the issue, the
federal court must ascertain the state law from “all relevant data.” Garden City Osteopathic
Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir.1995) (quoting Bailey v. V. & O Press Co., 770
F.2d 601, 604 (6th Cir.1985)). All relevant data includes the state’s intermediate court decisions,
restatements of law, law review commentaries and decisions from other jurisdictions on the
“majority” rule. Rousey v. U.S., 115 F.3d 394, 397 (6th Cir. 1997).
A. State Immunity
Plaintiff alleges Escola and England intentionally falsified evidence in order to procure a
warrant with which to arrest Plaintiff, and this led the officers to commit several tortious acts
35
(5:09CV02173)
against Plaintiff. ECF No. 16 at 12-3. Escola and England argue they are immune from suit
based upon state law immunity. ECF Nos. 38 at 14; 42 at 17.
Ohio Revised Code Chapter 2744 creates a presumption that political subdivisions and
their law enforcement officers are immune from liability from state tort claims. Cook v.
Cincinnati, 658 N.E.2d 814, 820 (Ohio Ct. App. 1995). The question of whether a governmental
employee or political subdivision is entitled to statutory immunity is again a question of law for
a court’s determination. Feitshans v. Darke County, 686 N.E.2d 536, 539 (Ohio Ct. App. 1996).
R.C. 2744.03(A)(6) governs a political subdivision employee’s immunity. Smith v.
Redecker, 2010 WL 541355, *8 (Ohio App. Ct. Feb. 4, 2010). Pursuant to R.C. 2744.03(A)(6), a
political subdivision employee is immune from liability for acts or omissions in connection with
a governmental or proprietary function unless one of three exceptions applies: (1) his acts or
omissions are manifestly outside the scope of his employment; (2) his acts or omissions are
malicious, in bad faith, or wanton or reckless; or (3) liability is expressly imposed upon the
employee by another section of the Revised Code. Id. Thus, an employee of a political
subdivision is presumed immune unless one of these exceptions to immunity is established. See
Cook, 658 N.E.2d at 820.
Plaintiff does not argue that the officer’s acts were manifestly outside the scope of their
employment or official responsibilities. Additionally, Plaintiff does not allege that liability is
expressly imposed by a statute. Any review thus focuses on R.C. 2744.03(A)(6)(b), whether the
officers’ acts “were with malicious purpose, in bad faith, or in a wanton or reckless manner.”
The term “malice” means the willful and intentional desire to harm another, usually
36
(5:09CV02173)
seriously, through conduct which is unlawful or unjustified. Hicks v. Leffler, 695 N.E.2d 777,
780 (Ohio Ct. App. 1997). “Bad faith” implies a sinister motive that has “no reasonable
justification.” Id. “Bad faith” embraces more than bad judgment or negligence, it imports a
“dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through
some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to
mislead or deceive another.” Id.; See also Jackson v. Butler Cty. Bd. of Cty. Commrs.,602
N.E.2d 363, 367 (Ohio Ct. App. 1991).
Wanton misconduct has been defined as the failure to exercise any care whatsoever. See
Fabrey, 639 N.E.2d at 35 (citing Hawkins v. Ivy, 363 N.E.2d 367, syllabus (Ohio 1977)). The
Ohio Supreme Court has held that “mere negligence is not converted into wanton misconduct
unless the evidence establishes a disposition to perversity on the part of the tortfeasor.” Fabrey,
639 N.E.2d at 35 (quoting Roszman v. Sammett, 269 N.E.2d 420, 422 (Ohio 1971)). Such
perversity requires that the actor be conscious that his conduct will, in all likelihood, result in an
injury, and the standard of proof to show wanton misconduct is high. Id.
“Reckless” refers to conduct that causes an unreasonable risk of harm and is
“substantially greater than that which is necessary to make [an actor’s] conduct negligent.”
Thompson v. McNeill, 559 N.E.2d 705, 708 (Ohio 1990). Likewise, an individual acts recklessly
when he or she, bound by a duty, does an act or intentionally fails to do an act, knowing, or
having reason to know of facts that would lead a reasonable person to realize not only that there
is an unreasonable risk of harm to another, but also that such risk is substantially greater than
that which is necessary for negligence. See Id.; Fabrey, 639 N.E.2d at 35.
37
(5:09CV02173)
B. False Arrest/ False Imprisonment
Plaintiff argues he was falsely arrested and imprisoned by Escola and England because
they fabricated evidence to establish probable cause in order to procure a warrant for his arrest.
ECF No. 16 at 12-3.
“In its essential elements, a claim for false arrest is indistinguishable from a claim for
false imprisonment in that each claim requires proof that one was intentionally confined within a
limited area, for any appreciable time, against his will and without lawful justification.” Evans
v. Smith, 646 N.E.2d 217, 224 (Ohio Ct. App. 1994) (citing Feliciano v. Kreiger, 362 N.E.2d 646
(Ohio 1977)). In false arrest, the action is based upon “some asserted legal authority to enforce
the law (such as that possessed by a police officer), whereas the tort of false imprisonment is
reserved for those situations in which detention is purely a matter between private persons.”
Norwell v. Cincinnati, 729 N.E. 2d 1223 (Ohio Ct. App. 1999) (citing Evans, 646 N.E.2d at
224). Because the instant action is a matter between a private person and a police officer, the
correct tort is false arrest. As such, the Court treats Plaintiff’s two claims of false arrest and false
imprisonment as one claim of false arrest.
In Ohio, a claim for false arrest requires proof of (1) a detention of the person, and (2)
an unlawful detention. Thacker v. City of Columbus, 328 F.3d 244 (6th Cir. 2003). Like false
arrest claims pursuant to Fourth Amendment standards, “under Ohio law, an arrest warrant,
‘issued by a court unless utterly void is a complete defense to an action for false arrest or false
imprisonment.’” Voyticky, 412 F.3d at 677 (quoting McFarland v. Shirkey, 151 N.E.2d 797, 802
(Ohio Ct. App.1958)). To preclude state immunity, a plaintiff must further show the warrant was
38
(5:09CV02173)
void because the officer made a false statement either intentionally or with a reckless disregard
for the truth. Fabrey v. McDonald Village Police Dept., 639 N.E.2d 31, 35 (Ohio 1994).
As already noted above, the record does not reflect that Escola made a false statement
intentionally or with a reckless disregard for the truth when procuring the warrant. Thus, Escola
is immune pursuant to R.C. 2744.03(A)(6). A genuine issue of material fact exists as to whether
England made a false statement intentionally or with a reckless disregard for the truth. The
record reflects England knew the importance of a properly conducted photo ID lineup24, and her
alleged conduct, if found to be true, would rise to the level of wanton or reckless. Thus, England
is not entitled to state immunity, and her motion for summary judgment as to the false arrest
claim is denied. Summary judgment, as applicable, is granted to the remaining defendants on
this claim.
C. Malicious Prosecution
The Ohio Supreme Court has recognized that an action for malicious prosecution is
24
England testified:
Q:
What is the importance of a photo lineup?
A:
the importance?
Q:
Yeah.
A:
It is very important.
Q:
Why is it important? For whose sake is it important?
A:
For both sides.
Q:
What side?
A:
For, in this case, Theresa Garletts.
Q:
Right.
A:
Because she needs to be telling the truth for Matt Ruble and for me.
Q:
And why is it important for Matthew Ruble?
A:
Because he’s the person who is in the lineup.
ECF No. 36 at 44.
39
(5:09CV02173)
“closely akin” to an action for false arrest or false imprisonment, but has characterized “the
distinction between them [as] fundamental.” Rogers v. Barbera, 164 N.E.2d 162, 164 (Ohio
1960). “A suit for false arrest or false imprisonment is the proper action where the aggrieved
party is arrested without legal process, or under a void process; but where the process on which
the arrest is made is regular on its face, but is sued out maliciously and without probable cause,
the remedy is an action for malicious prosecution.’” Id. (quoting 22 American Jurisprudence
353, False Imprisonment, at Sections 2 and 3 (1939)); see also Brothers v. County of Summit,
2007 WL 1567662 (N.D. Ohio May 25, 2007).
Because Plaintiff was arrested pursuant to a void legal process, the proper claim is false
arrest. See Durbin v. Ohio State Highway Patrol, 615 N.E.2d 694, 697 (Ohio Ct. App. 1992)
(noting the plaintiff’s malicious prosecution claim constituted false arrest because he alleged the
warrant issued was void for lack of probable cause). Thus, the malicious prosecution claim is
without merit. Summary judgment, as applicable, is granted on this claim.
D. Abuse Of Process
Plaintiff alleges a state law claim of abuse of process. ECF No. 16 at 15. An abuse of
process claim requires: (1) that a legal proceeding has been set in motion in proper form and
with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an
ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the
wrongful use of process. Yaklevich v. Kemp, Schaeffer and Rowe, Company, L.P.A., 626 N.E.2d
115, 118 (Ohio 1994).
Because the Court has established England did not have probable cause to arrest Plaintiff,
40
(5:09CV02173)
a claim against her cannot lie. As for Escola, Plaintiff cannot show facts that indicate he
perverted the proceeding to accomplish an ulterior purpose. Though Plaintiff makes much of the
personal relationship between Escola and England, the facts do not show this alleged relationship
caused Escola to pervert the investigation so as to leave town with England. ECF No. 44 at 19.
Rather, the facts show Escola was reasonable in his reliance upon Garletts’ photo ID and the
prosecutor’s issuance of the arrest warrant. England and Escola are entitled to immunity.
Both are granted summary judgment on this claim.
E. Intentional Infliction of Emotional Distress
Plaintiff alleges that as a direct result of the outrageous and extreme conduct of Escola
and England, he suffered emotional distress. ECF No. 16 at 15. Plaintiff argues Escola and
England behaved outrageously in that they continued to investigate Plaintiff even after they
knew he was not connected to the burglary, and that the purpose behind the investigation was to
manufacture probable cause so Escola and England could “get away together.” ECF No. 44 at
20. Furthermore, Plaintiff argues Escola and England delayed in picking up Plaintiff at the jail
while they “visited Escola’s family and enjoyed a dinner out together.” ECF No. 43 at 20.
Defendants argue the behavior was not extreme or outrageous and there was no intent to harm.
ECF Nos. 42 at 15; 38 at 24.
The elements of intentional infliction of emotional distress are: (1) that the defendant
intended to cause the plaintiff serious emotional distress; (2) that the defendant’s conduct was
extreme and outrageous; and (3) that the defendant’s conduct was the proximate cause of
plaintiff’s serious emotional distress. Phung v. Waste Mgt., Inc., 644 N.E.2d 286, 289 (Ohio
41
(5:09CV02173)
1994). Extreme and outrageous conduct is conduct that goes beyond any possible bounds of
decency and is so atrocious that it is “utterly intolerable in a civilized society.” Yeager v. Local
Union 20, 453 N.E.2d 666, 671 (Ohio 1983) (abrogated on other grounds). “Mere insults,
indignities, threats, annoyances and petty oppressions, or other trivialities” are insufficient to
state a claim for relief. Id. Furthermore, in order for emotional distress to be “serious,” it must
be emotional injury “which is both severe and debilitating.” Paugh v. Hanks, 451 N.E.2d 759,
765 (Ohio 1983).
In the instant case, Plaintiff has failed to present evidence that the officers’ actions
intended to cause him serious emotional distress. Plaintiff himself alleges the officers actions at
worst were intended to devise a way to leave town together, and not to intentionally harm
Plaintiff. Plaintiff’s argument that Defendants continued to investigate him “even after they
knew that Ruble was in no way connected with the burglary” is likewise without merit. ECF No.
44 at 20. The record reflects Defendants continued to investigate Plaintiff in order to ascertain
whether he was involved in the burglary, and when they believed he was not connected to the
burglary, they released him.25
The alleged “extreme” or “outrageous” acts of which Plaintiff complains consists of the
25
Given Griffin’s statement implicating Plaintiff in the burglary, Defendants attempted
to contact Plaintiff to investigate the possibility of his involvement in the crime. ECF No. 44 at
5. When Defendants went to Plaintiff’s last known local address, they discovered Plaintiff’s
girlfriend’s mother, who gave Defendants names of other people to speak to about Plaintiff, who
in turn communicated to Defendants that Plaintiff frequently engaged in criminal behavior. ECF
Nos. 44 at 5; 32 at 30-32; 36 at 30-35. Defendants then revisited the burglary site to determine
whether there were any additional witnesses to the crime. ECF No. 44 at 7. All of Defendants
aforementioned behavior in investigating Plaintiff appears to have been reasonable and proper
under the circumstances.
42
(5:09CV02173)
time Defendants spent together in Cincinnati before picking up Plaintiff to transport him back to
Stark County. ECF No. 44 at 20. As Escola notes, Plaintiff was going to sit in jail for the
evening whether it was in Warren County or Stark County, so any activity during that time did
not cause Plaintiff to spend more time in jail then he would have otherwise, even if the activity
could be considered outrageous. ECF No. 48 at 8. The Court does not find that eating at a pizza
shop for 45 minutes then visiting Escola’s daughter was particularly extreme or outrageous
behavior. Furthermore, arrest and detention itself does not approach the “high standard adopted
by the Ohio Supreme Court” for intentional infliction of emotional distress. Voyticky, 412 F.3d
at 678. Defendants’ motions for summary judgment are granted as to the intentional infliction of
emotional distress claim.
F. Defamation
Plaintiff alleges a claim for defamation because England “spoke to Ruble’s associates in
Stark County while investigating the crime, [and] she mentioned that she wanted to talk to Ruble
in regard to burglary.” ECF No. 43 at 21. Plaintiff further alleges “this continued at Ruble’s
place of work in Cincinnati, where Escola and England spoke to Rubles’ coworkers regarding
the burglary investigation.” ECF No. 43 at 21. Furthermore, Plaintiff alleges Escola and
England “allowed Ruble’s co-workers to know that they had a warrant for his arrest.” ECF No.
43 at 21.
To state a claim pursuant to Ohio law for defamation, a plaintiff must show: (1) a false
and defamatory statement; (2) about plaintiff; (3) published without privilege to a third party; (4)
with fault of at least negligence on the part of the defendant; and (5) that was either defamatory
43
(5:09CV02173)
per se or caused special harm to the plaintiff. See Akron-Canton Waste Oil, Inc. v. Safety-Kleen
Oil Serv., Inc., 611 N.E.2d 955, 962 (Ohio Ct. App. 1992). A publication is privileged when it is
“fairly made by a person in the discharge of some public or private duty, whether legal or moral,
or in the conduct of his own affairs, in matters where his interest is concerned.” See Hahn v.
Kotten, 331 N.E.2d 713, 718 (Ohio 1975).
In the instant case, the communication Plaintiff alleges was true and communicated
during the discharge of a public duty. Speaking to Plaintiff’s associates and co-workers and
“allow[ing] Ruble’s co-workers to know that they had a warrant for his arrest” was true and in
furtherance of an investigation. Plaintiff’s defamation claim therefore fails. Summary judgment
is granted on this claim.
G. Civil Conspiracy
Plaintiff alleges a claim of civil conspiracy against Escola and England. ECF No. 16 at
16. Plaintiff agrees with Defendants that this claim “rises or falls on the success of his other
claims.” ECF No. 44 at 21. Because a civil conspiracy involves at least two people, see Kenty v.
Transamerica Premium Ins. Co., 650 N.E.2d 863, 866 (Ohio 1995), and because Escola is not
liable to Plaintiff on any claims, there is no potential for civil conspiracy. Furthermore, as both
Escola and England were officers of the Perry Township Police Department, the intra-corporate
conspiracy doctrine negates such a claim. Hull v. Cuyahoga Valley Joint Vocational Sch. Dist.
Bd. of Educ., 926 F.2d 505, 509-10 (6th Cir. 1991) (“Since all of the defendants are members of
the same collective entity, there are not two separate ‘people’ to form a conspiracy” because the
intra-corporate conspiracy doctrine does not allow a claim to be based upon the acts of the agents
44
(5:09CV02173)
or employees of the same entity); Bays v. Canty, 330 Fed.App’x. 594 (6th Cir. Ohio) (applying
the doctrine, used by the Sixth Circuit pursuant to federal law, to Ohio state claims). Summary
judgment is granted on this claim.
V. Conclusion
For the aforementioned reasons, the Court denies England’s motion for qualified
immunity as to the false arrest claim pursuant to § 1983 and the state law false arrest claim. The
Court grants the remainder of England’s motion. The Court grants Escola’s motion for qualified
immunity and summary judgment in its entirety. The Court also grants Perry Township’s motion
for summary judgment in its entirety. (ECF Nos. 37, 38, 42).
Accordingly, this case proceeds only on the § 1983 and false arrest claims against
Defendant England.
IT IS SO ORDERED.
September 28, 2012
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
45
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?