Engle v. City of Cuyahoga Falls et al
Filing
170
Memorandum Opinion. Defendants motion for summary judgment (Doc. No. 128 ) is granted in part. Specifically, plaintiff's conspiracy claim, her due process claim, and her Fourth Amendment claim, to the extent it seeks redress for the Apr il 17, 2013 entry into her home, are dismissed. Additionally, defendants Schmidt, McIlvain, Ralston, Luggelle, Holzapfel, Heinl, and Nettle are dismissed as party defendants. Plaintiff's summary judgment motion (Doc. No. 134 ) is denied in full . Assuming the remaining parties are unable to reach an amicable resolution of this matter, this case shall proceed to trial on the surviving portions of plaintiff's Fourth Amendment claim, her claim for intentional infliction of emotional distress, and her trespass claim. Where applicable, defendants will be able to request qualified and/or statutory immunity for these claims at trial. Judge Sara Lioi on 8/1/16. (S,HR)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KATHRYN E. ENGLE,
PLAINTIFF,
vs.
CHARLES H. NETTLE, et al.,
DEFENDANTS.
)
)
)
)
)
)
)
)
)
)
)
CASE NO. 5:14-cv-1161
JUDGE SARA LIOI
MEMORANDUM OPINION
Before the Court, in this civil rights action, are the parties’ respective summary judgment
motions. Defendants, Officer Daniel Randall (“Randall”), Officer Robert Schmidt (“Schmidt”),
Officer David Holzapfel (“Holzapfel”), Officer Richard Garinger (“Garinger”), Officer James
McGowan (“McGowan”), Officer McIlvain (aka Officer 6384) (“McIlvain”), Officer Mark
Ralston (“Ralston”), Sergeant Michael Heinl (“Heinl”), and Officer 2993 (aka Officer Luggelle)
(“Luggelle”) (collective “officers”), and Charles Nettle (“Nettle”), seek summary judgment in
their favor on all claims on the merits, as well as qualified and/or statutory immunity for each
claim. (Doc. No. 128 [“Def. MSJ”].) Plaintiff Kathryn Engle (“plaintiff” or “Engle”) opposes the
motion (Doc. No. 148 [“Def. MSJ Opp’n”]), and defendants have filed a reply. (Doc. No. 155
[“Def. MSJ Reply”].) Plaintiff also seeks judgment in her favor on all claims. (Doc. No. 134
[“Pl. MSJ”].) Defendants have filed a brief in opposition (Doc. No. 149 [“Pl. MSJ Opp’n”]), and
plaintiff has filed a reply. (Doc. No. 156 [“Pl. MSJ Reply”].)1 For the reasons that follow,
plaintiff’s summary judgment motion is DENIED, and defendants’ dispositive motion is
GRANTED IN PART.
I. BACKGROUND
The present case involves a series of interactions between plaintiff and police officers and
a health inspector employed by the City of Cuyahoga Falls occurring between April 15, 2013 and
June 4, 2013. Each of the incidents revolved around plaintiff’s son, Kory Engle (“Kory”), and
her son’s girlfriend, Tanya Hess (“Tanya”), and their occupation of plaintiff’s home. It is
undisputed that, at all times relevant to the present action, plaintiff maintained a private residence
at 1936 5th Street in Cuyahoga Falls, Ohio. The parties further agree that neither Kory nor Tanya
held a property interest in this residence, nor did either individual’s name appear on a lease to
this premises. Beyond these undisputed facts, the parties’ accounts of the various encounters
differ substantially. Because the Court entertains defendants’ summary judgment motion first, it
takes all of the facts in the light most favorable to plaintiff as the non-moving party. When the
Court considers plaintiff’s dispositive motion, it will view the facts in favor of defendants.
According to plaintiff, in March of 2013, she spent time in Omaha, Nebraska caring for
1
This document, originally filed June 14, 2016, was styled “Plaintiff’s Answer to Defense Support Brief & Plaintiff
Brief for Preponderance of Evidence.” Shortly after its filing, defendants moved to strike the document, claiming
that it represented either an untimely reply brief in support of summary judgment for plaintiff, or an impermissible
sur-reply in opposition to defendants’ dispositive motion. (Doc. No. 160 [“Mot. Strike”].) Plaintiff opposed the
motion to strike (Doc. No. 161 [“Mot. Strike Opp’n”]) and filed a motion for leave to refile her reply brief. (Doc.
No. 164.) In her opposition to the motion to strike, plaintiff explained that she was delayed in the filing of her reply
brief because of problems associated with her email system. The Court construes Doc. No. 156 as plaintiff’s reply
brief in support of her motion for summary judgment and accepts plaintiff’s explanation as to why it was filed after
the deadline set forth in the Court’s Case Management Plan and Trial Order. Accordingly, defendants’ motion to
strike is DENIED and plaintiff’s motion for leave is DENIED AS MOOT. The briefing on summary judgment is
now complete and these motions are ripe for resolution.
2
her mother. (Doc. No. 130 (Deposition of Kathryn Engle [“K. Engle Dep.”]) at 840.2) She
decided to return to Ohio in April, however, because she had to file her taxes by April 15, 2013.
(Id.) On her way back to Ohio, plaintiff became ill and was transported to a hospital for
emergency surgery. (Id. 839-40.) She was released from the hospital and returned to her home in
Cuyahoga Falls on April 14, 2013 to find that the handle on the front door had been damaged.
(Id. at 825.) Once inside, she discovered a “huge mess” in the kitchen. An inspection of the rest
of the dwelling revealed bags and boxes strewn everywhere and holes in the walls. When she
discovered a baby’s bed in her bedroom she deduced that her “estranged” son Kory had been
living in her home in her absence with his “on and off girlfriend” Tanya and their child. (Id. at
825-26.) Because she was “exhausted” from her surgery, plaintiff immediately took some pain
medication and went to bed. (Id. at 826)
She awoke in the middle of the night and decided to make a sign out of some poster
board upon which she wrote “Kory & Tanya—Give me [a] couple Days. I am recuparating [sic]
From surgery[.] You need to call & set up [a] time to come get your stuff out. I am selling [the]
house. Do not trespass. Call me.” (Id.; Doc. No. 128-23 at 666, all capitalization in original.)
Early on the morning of April 15, 2013, she backed her van halfway down her driveway and
affixed the sign to the van. (K. Engle Dep. at 826.) She returned to her bedroom and went back
to sleep. (Id. at 827.)
2
All page number references are to the page identification number generated by the Court’s electronic docketing
system.
3
In her deposition, plaintiff explained that she could not reduce the actual poster to a size that could be copied.
Instead, she recreated the message from the poster board onto a piece of paper and attached it as an exhibit. (K.
Engle Dep. at 834.)
3
First Police Visit on April 15, 2013
Plaintiff awoke a second time briefly that morning and realized that many of her
possessions, including clothing and family heirlooms, were missing. (Id.) Plaintiff took more
pain medication and went back to sleep. (Id. at 828.) At 2:44 PM, plaintiff heard some loud
voices and knocking at her front door. She looked out the bathroom window and saw Kory,
Tanya, and four police officers walking up her driveway. There is no dispute at least one of the
officers was defendant McGowan. (Doc. No. 128-10 (Declaration of Chief Jack Davis [“Davis
Decl.”]) ¶ 5.) Plaintiff called down to the group and inquired what was going on, and was
advised by one of the officers that Kory and Tanya wanted to retrieve their belongings from her
home. She directed the officers to the sign affixed to the van, advised the group that she needed
to sleep, and suggested that Kory make an appointment. (K. Engle Dep. at 828-29.)
According to plaintiff, one or more officers informed her that Kory and Tanya needed to
get inside the house because they lived there. (Id.) Plaintiff disputed this point, advising the
officers that “no, they don’t live here.” (Id. at 829.) She then went downstairs and found her son
preparing to enter the house through the window. Plaintiff attempted to lock window, at which
time one of the officers yelled at Kory “you just break in that window right there. You go in the
house. You have your ID. You just go in there and you let us in the back door.” (Id. at 830.)
Plaintiff responded “I go no. I go, he’s not living here. I said, where are the keys, where is the
contract, and we continually went on that.” (Id.) Undaunted, Kory went through the unlocked
window into the house, at which time he let two or three of the officers and Tanya into the home
through the back door. (Id. at 838-39.) Again, plaintiff objected, reiterating that “[Kory and
Tanya] don’t live here and you have no right and they just continued to come in.” (Id. at 830,
4
838.) Once inside, Kory and Tanya began removing items from the home. While the officers
instructed the couple to only retrieve clothing, plaintiff maintains that Tanya grabbed a big box
of construction toys to which he had no right. (Id. at 839.)
Second Police Visit on April 15, 2013
Officer Randall returned to plaintiff’s residence a second time on April 15, 2013. This
time he was accompanied by Officer McIlvain. (Davis Decl. ¶ 5.) It appears from the record that
the purpose of this visit was to afford Kory the opportunity to collect his cat and the cat’s litter
box from the residence. Kory did not gain entrance to plaintiff’s home during this visit, as
plaintiff managed to pass Kory the cat and its litter box through an open window. Plaintiff
concedes that no officers entered her home at any time during this visit. (Id. at 845-46.)
Third Police Visit on April 15, 2013
The third and final visit on April 15, 2013 appears to have been a brief stop wherein
Officers Schmidt and Holzapfel arrived and left the home without interacting with plaintiff.
(Davis Decl. ¶ 5; Engle Dep. at 861-62.) As was the case with the second visit, plaintiff does not
suggest that anyone entered her home during this visit.
Visit by Police, EMS, and Health Inspector on April 17, 2013
On April 17, 2013, Tanya came to the Cuyahoga Falls Police Station requesting
assistance to obtain additional items from the 5th Street property. (Doc. No. 128-8 (Declaration
of Richard Garinger [“Garinger Decl.”]) ¶ 3.) Tanya advised Officer Garinger that she had been
living at the 5th Street residence with her boyfriend and that her boyfriend’s mother had returned
home and would not let them in the house. (Id.) Garinger learned that Officer McGowan was one
of the officers who had visited the residence on April 15, 2013 and contacted him about the
encounter. (Id. ¶ 4; see Davis Decl. ¶ 5.) Officer McGowan confirmed that Tanya’s property was
5
discovered inside the house. (Garinger Decl. ¶ 5.) Ultimately, Garinger concluded that Tanya
was a resident of the property, as it was listed as her residence on her driver’s license and she
received mail at the residence. (Id.)
There is no dispute that Officers McGowan and Garinger accompanied Tanya to the
residence on April 17, 2015. (Davis Decl. ¶ 6; see Garinger Decl. ¶ 7; see generally K. Engle
Dep. at 864-78.) It is also beyond dispute that, upon their arrival, plaintiff refused to allow Tanya
to enter to retrieve her property. (Garinger Decl. ¶ 7.) According to plaintiff, she heard knocking
and went to the window above the back door, at which time Officer McGowan advised her that
she had 30 seconds to get downstairs and open the back door otherwise the officers would break
in. (K. Engle Dep. at 866.) When plaintiff turned around at the front of the stairs, she was
surprised to find that Officer Garinger and Tanya were already inside the house.4 (Id. at 867.)
Officer Garinger averred that, upon observing the poor and unsanitary conditions in the home, he
had concerns regarding plaintiff’s ability to care for herself and requested that someone from the
Housing Department and EMS respond to the residence. (Garinger Decl. ¶¶ 8, 10.)
Plaintiff states that the only article of clothing she had on at the time she first discovered
Tanya and Officer Garinger in her home was a black t-shirt that did not fully cover her
“privates.” (K. Engle Dep. at 867.) She recalled attempting to pull the shirt down further to more
fully cover her body, during which she claims Tanya was standing behind Officer Garinger
laughing at her. (Id.) Officer Garinger informed plaintiff that they had come to get Tanya’s
effects. Plaintiff asked if she could be permitted to put on pants or go to the bathroom. Officer
Garinger denied both requests. (Id.) Tanya began filling garbage bags with items from the house,
4
Officer Garinger avers that, “[w]ith the request and permission of Ms. Hess, I assisted her with opening the rear
door which was unlocked but blocked by numerous items.” (Garinger Decl. ¶ 7.)
6
which included plaintiff’s jewelry and watch. (Id. at 867, 868, 870.) Plaintiff then asked for her
cell phone so that she could call her attorney. She also purportedly inquired of Officer Garinger
as to whether they had any warrants and why they were in her house. (Id. at 868-70.)
At some point during this encounter, defendant Nettle, a housing inspector for the City of
Cuyahoga Falls, arrived at the home. (K. Engle Dep. at 907; Garinger Decl. ¶ 11; Doc. No. 128-9
(Declaration of Charles Nettle [“Nettle Decl.”]) ¶ 4.) He walked through the house and noted
various problems with the home, including excessive garbage and blocked egresses. (K. Engle
Dep. at 908; Nettle Decl. ¶ 4; Doc. No. 128-3 (photographs of the home).) As a result of what he
viewed as code violations and safety hazards, he issued an emergency order declaring the
property to be unfit for human occupancy. (Nettle Decl. ¶ 6.) Nettle subsequently issued plaintiff
a letter outlining the violations, advising plaintiff that she was not permitted in the residence
except to remedy the violations, and providing her 30 days in which to fix the violations. (Id. ¶
7.)
Paramedics also eventually arrived and gained entry to the house. Plaintiff testified that
Garinger advised her that he was going to arrest her, citing the mess in the house and the fact that
there was not any food in the refrigerator. (K. Engle Dep. at 874-76.) When the paramedics
arrived, Garinger instructed plaintiff to show them her surgery scar and they then performed
what plaintiff describes as a “strip search.” (Id. at 875, 906.) Plaintiff also advised the
paramedics of the medications she was taking. (Id. at 878.) One of the paramedics instructed
plaintiff to go to the hospital to receive an adult evaluation to make sure that she was okay. (Id.
at 878, 880.)
After the paramedics had examined plaintiff, she again asked the officers why they had
come to her home, reiterating that she had just had surgery and did not feel well. She then
7
instructed everybody to “get out of my house.”5 (Id. at 879.) Plaintiff’s friend, Heather, drove
plaintiff to the local hospital where she was examined by medical personnel at St. Thomas
Hospital. (Id. at 881-84.) According to plaintiff, once at the hospital, she was advised that she
had been “pink slipped,” which plaintiff believed meant that she could be held at the hospital for
a period of evaluation lasting 72 hours. (Id. at 884, 887.)
The last encounter with the Cuyahoga Falls Police Department that forms the basis for
the present litigation occurred on June 4, 2016. Garinger avers that he responded to a call placed
by plaintiff to the police department in which she requested police assistance in removing an
“unwanted person” from the residence. (Garinger Decl. ¶ 13; K. Engle Dep. 921, 923.)
According to defendants, Officer Garinger was accompanied by Officer Ralston. (Davis Decl. ¶
9.) Plaintiff insists that Sargent Heinl accompanied Garinger. (K. Engle Dep. at 920.) Upon
arrival, Garinger claims that he found Tanya outside the residence picking up items that plaintiff
had left for her. (Id. ¶ 13.) What followed next is highly disputed. Plaintiff testified that, while
Tanya was in her driveway collecting the items plaintiff had placed for her on the patio, Tanya
was screaming at her. (K. Engle Dep. at 922.) Once on plaintiff’s back porch, Officer Garinger
informed plaintiff that he was going to “breakdown the door again.” (Id. at 923-24.) Plaintiff said
“please, dear God, I can’t afford another [door].” (Id. at 924.) Plaintiff instructed Garinger to get
off the back porch and she would open the door and come out. (Id.) Instead of complying with
her request, plaintiff maintains that Officer Garinger pushed the door open and entered the
kitchen, and, in the process, pushed plaintiff into the refrigerator in the kitchen. (Id. at 924-25,
5
While this point is not entirely clear from the record, plaintiff suggests that, at some point, she contacted a friend,
Heather, who agreed to come to the home. (K. Engle Dep. at 872-73.) According to plaintiff, Heather also inquired
as to why the officers were in plaintiff’s home and “sent everyone out.” (Id. at 878.)
8
926.)
Plaintiff alleges that, at some point during the encounter, Officer Garinger and Sargent
Heinl accused her of living in the home while she attempted to remedy the health code
violations. (Id. at 920.) Garinger also intimated that she had made no progress in remedying the
code violations, a fact which plaintiff disputed. (Id. at 926.) When plaintiff suggested that
Garinger contact Nettle to confirm that plaintiff had made progress on the house, Garinger
advised plaintiff that he had already contacted Nettle. According to plaintiff, Nettle came out to
the house at some point, looked around, and declared that the house looked good. (Id. at 929-30.)
After plaintiff contacted her attorney, and Officer Garinger spoke with the attorney by phone,
plaintiff states that the officers and Nettle left her home and the encounter ended. (Id. at 934.)
Plaintiff, acting pro se, filed the present action on April 15, 2014 in state court against
defendants, the City of Cuyahoga Falls, the Cuyahoga Falls Police Department, Saint Thomas
Hospital, and various healthcare employees. (Doc. No. 1-1 (State Court Complaint).) The action
was removed to federal court on May 30, 2014. (Doc. No. 1 (Notice of Removal).) After
reviewing the original complaint, the Court issued an order advising plaintiff that her pleading
did not appear to contain allegations which could be construed as setting forth a valid federal
claim. (Doc. No. 8.) Plaintiff was afforded leave to file an amended complaint, which she did file
on October 14, 2014. (Doc. No. 10 (First Amended Complaint [“FAC”]).)
Defendants subsequently filed motions to dismiss the FAC and/or to enter judgment in
their favor on the pleadings. (Doc. Nos. 12, 14.) In a Memorandum Opinion, dated June 22,
2015, the Court dismissed the city, the police department, the hospital, and the healthcare
employees. The court also dismissed plaintiff’s claims for excessive force, state civil conspiracy,
and negligent infliction of emotional distress. (Doc. No. 17 (Memorandum Opinion [“MO”]).)
9
Following this ruling, the remaining parties proceeded to engage in discovery on the remaining
claims of Fourth and Fourteenth Amendment violations under 42 U.S.C. § 1983, federal
conspiracy, and state law trespass and intentional infliction of emotional distress. (Id. at 167.)
The present summary judgment motions were filed after the close of discovery.
II. STANDARD OF REVIEW
When a party files a motion for summary judgment, it must be granted “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the
record . . . ; or (B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
In reviewing summary judgment motions, this Court must view the evidence in a light
most favorable to the non-moving party to determine whether a genuine issue of material fact
exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970);
White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943-44 (6th Cir. 1990), impliedly
overruled on other grounds by Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113
L. Ed. 2d 190 (1991). A fact is “material” only if its resolution will affect the outcome of the
lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202
(1986). 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.
10
Once the moving party has presented evidence sufficient to support a motion for
summary judgment, the nonmoving party is not entitled to trial merely on the basis of
allegations; significant probative evidence must be presented to support the complaint.” Goins v.
Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). The party opposing the motion for summary
judgment may not rely solely on the pleadings but must present evidence supporting the claims
asserted by the party. Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (Summary
judgment is appropriate whenever the non-moving party fails to make a showing sufficient to
establish the existence of an element essential to that party’s case and on which that party will
bear the burden of proof at trial). Moreover, conclusory allegations, speculation, and
unsubstantiated assertions are not evidence, and are not sufficient to defeat a well-supported
motion for summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 487 U.S. 871, 888, 110 S. Ct.
3177, 111 L. Ed. 2d 695 (1990). In other words, to defeat summary judgment, the party opposing
the motion must present affirmative evidence to support his or her position; a mere “scintilla of
evidence” is insufficient. Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003) (quotation
marks and citation omitted).
A party seeking or opposing summary judgment may rely on deposition transcripts,
electronically stored documents, affidavits, declarations, and other materials. Fed. R. Civ. P.
56(c)(1)(A). Rule 56 further provides that “[t]he court need consider only” the materials cited in
the parties’ briefs. Fed. R. Civ. P. 56(c)(2); see also Street v. J.C. Bradford & Co., 886 F.2d
1472, 1479-80 (6th Cir. 1989) (“The trial court no longer has the duty to search the entire record
to establish that it is bereft of a genuine issue of material fact.”) (citing Frito-Lay, Inc. v.
Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). Nonetheless, the Court is at liberty to
11
consider any record evidence in resolving a summary judgment motion. Fed. R. Civ. P. 56(c)(2).
Defendants’ summary judgment motion relies heavily upon the fact that plaintiff has
failed to include specific record cites in her opposition brief. Plaintiff acknowledges this
shortcoming, but explains that she was unable to “go line by line” through the deposition
testimony. (Def. MSJ Opp’n at 1291.) Given plaintiff’s pro se status, her unfamiliarity with legal
briefing, and the judicial preference to resolve claims on the merits rather than on technicalities,
the Court found it appropriate to review all of the record evidence in this case. See generally
Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550, 130 S. Ct. 2485, 177 L. Ed. 2d 48 (2010).
As discussed below, such a review—and especially a review of plaintiff’s deposition—has
revealed that there are disputed questions of fact that preclude summary judgment on several
claims in the FAC.
III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
A.
Certain Officers Seek Dismissal on All Counts
Officers Schmidt, McIlvain, Ralston, Luggelle, and Holzapfel, along with Sargent Heinl,
seek summary judgment on all claims in the FAC, given that plaintiff failed to assert any specific
allegations against these officers and has pointed to no record evidence that would suggest that
they violated her constitutional rights or engaged in any conduct that would, if believed, entitle
her to damages against them. The Court agrees that these defendants are entitled to summary
judgment in their favor.
It is well settled that a defendant cannot be held individually liable under Section 1983
for constitutional violations absent a showing that the defendant was personally involved in some
manner in the alleged unconstitutional conduct. Miller v. Calhoun Cnty., 408 F.3d 803, 817, n.3
(6th Cir. 2005) (citation omitted); see generally Hardin v. Straub, 954 F.2d 1193, 1197 (6th Cir.
12
1992). Moreover, a complaint that only refers to defendants in the collective fails to provide
individual defendants fair notice of the allegations against them. See Marcilis v. Twp. of Redford,
693 F.3d 589, 596 (6th Cir. 2012) (collecting cases); Mueller v. Gallina, 311 F. Supp. 2d 606,
608 (E.D. Mich. 2004) (“In order to state a claim under Bivens, a plaintiff must allege that the
individual defendant was personally involved in the alleged deprivation of the plaintiff’s
constitutional rights.” (collecting cases) (emphasis in original).
The FAC makes no distinction between the various defendants. They are collectively
referred to as “defendants,” with no specific factual allegations directed at any individual
defendant. Discovery has shed some light on the actions taken by the various officers.
Defendants concede that each of the defendants made at least one visit to plaintiff’s residence
during the time period set forth in the FAC. (Davis Decl. at 732-33.) Plaintiff also discussed, by
name, the activity of certain officers during her deposition. Still, it remains true that there is no
evidence that, if believed, would establish that Officers McIlvain, Schmidt, Luggelle, and
Holzapfel ever entered plaintiff’s residence.6 (See K. Engle Dep. at 846, 914.) In fact, plaintiff
fails to even mention these officers, along with Officers Ralston and Luggelle, in her deposition.
Further, while she suggests that Sargent Heinl accompanied Garinger to her residence on June 4,
2013, she does not claim that he entered her home with Garinger, or otherwise engaged in any
conduct that would constitute a constitutional violation or would rise to the level of intentional
infliction of emotional distress. Because the record is devoid of any evidence that would show
that defendants Schmidt, McIlvain, Ralston, Luggelle, Holzapfel, and Heinl personally
6
While she does not identify him by name, she indicates that “good old officer 2993” dropped off a notice at her
door. (K. Engle Dep. at 914.) Plaintiff does not suggest this officer ever entered her home. Officer 2993 has been
identified as Officer Luggelle. (Def. MSJ at 647.)
13
participated in, or otherwise authorized, approved or knowingly acquiesced in the alleged
unlawful conduct, there is no basis for individual liability against them and they are hereby
dismissed from this action.
B.
Fourth Amendment Claim
The Fourth Amendment preserves the right of citizens “to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures[.]” U.S. Const. amend.
IV. Generally, to satisfy the Fourth Amendment’s reasonableness requirement, a search or
seizure must be “accomplished pursuant to a judicial warrant issued upon probable cause.”
Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 619, 109 S. Ct. 1402, 103 L. Ed. 2d 639
(1989) (citations omitted). One of the well-recognized exceptions to the warrant requirement is
consent to search. See Shameizadeh v. Cunigan, 338 F.3d 535, 547 (6th Cir. 2003) (“Consent
from an individual whose property is to be searched or from a third party who possesses common
authority over the premises validates a search that would otherwise be considered unreasonable
and unconstitutional.”) (citing United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L.
Ed. 2d 242 (1974)).
Anyone who has a reasonable expectation of privacy in the place or effects being
searched can consent to a warrantless search, and any person with common authority over or
other sufficient relationship to the place or effects being searched can give valid consent. See
United States v. McGee, 564 F.3d 136, 139 (6th Cir. 2009) (“Authority to consent to a search
rests on ‘mutual use of the property by persons generally having joint access or control for most
purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to
permit the inspection in his own right and that the others have assumed the risk that one of their
number might permit the common area to be searched.’” (quoting Matlock, 415 U.S. at 171, n.7);
14
see, e.g., United States v. Caldwell, 518 F.3d 426, 429-30 (6th Cir. 2008) (co-occupant of hotel
room had authority to consent to search because she had signed into the room as a registered
guest of defendant, exited room with defendant immediately before search, and intended to stay
there overnight). A consenting co-occupant retains the right to restrict the scope of the search,
see Florida v. Jimeno, 500 US. 248, 252, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991), and even to
withdraw his consent once the search has begun. See United States v. Buckingham, 433 F.3d 508,
513 (6th Cir. 2006) (citation omitted).
“Even if the person giving consent in fact lacked authority to do so, the consent may
nonetheless validate the search if the person reasonably appeared to the police to possess
authority to consent to the search.” McGee, 564 F.3d at 139. Known as “apparent authority,” this
type of consent occurs “when officers . . . reasonably (though erroneously) believe that the
person who has consented to their entry is a resident of the premises[.]” Illinois v. Rodriguez,
497 U.S. 177, 186, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). Law enforcement may rely on a
person’s “apparent authority” to consent to the search if the reliance is in good faith and is
reasonable based on all facts known by the police at the time of the search. Id. at 186, 188
(holding that the reasonableness of a police officer’s belief that authority actually existed must be
judged against an objective standard: whether a person of reasonable caution with the facts
available would believe the consenting party had authority over the premises); see, e.g., United
States v. Stokes, 631 F.3d 802, 808 (6th Cir. 2011) (officer’s belief that woman had authority to
consent to search of apartment reasonable because she answered the door late at night and
officers could only see one bed inside with defendant sleeping on it).
Rodriguez represents the seminal case on “apparent authority.” While the Supreme Court
specifically validated this type of consent, it cautioned that its ruling should not be interpreted as
15
allowing for a third party’s naked assertion of authority to automatically establish an objectively
reasonable basis for inferring consent. Instead, the Court underscored the fact that “[e]ven when
the invitation is accompanied by an explicit assertion that the person lives there, the surrounding
circumstances could conceivably be such that a reasonable person would doubt its truth and not
act upon it without further inquiry.” 497 U.S. at 188. Moreover, even when the facts may
originally point singularly in the direction of apparent authority, if subsequent discoveries create
ambiguity, “any apparent authority evaporates.” United States v. Purcell, 526 F.3d 953, 964 (6th
Cir. 2008) (citing, among authority, Rodriguez, 497 U.S. at 188). At that point, the officers must
either obtain a warrant, or make further inquiry to reestablish authority before continuing the
search. See Purcell, 526 F.3d at 963-64 (“[A]pparent authority cannot exist if there is ambiguity
as to the asserted authority and the searching officers do not take steps to resolve the
ambiguity.”) (citing United States v. Waller, 426 F.3d 838, 846 (6th Cir. 2005)).
The existence of authority—actual or apparent—to consent does not necessarily end the
inquiry. “Even with the consent of a person with common authority, however, the police
generally may not enter when another occupant of the home is physically present and expressly
refuses to permit entry.” Smith v. City of Wyoming, 821 F.3d 697, 709 (6th Cir. 2016) (citing
Georgia v. Randolph, 547 U.S. 103, 106, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006)). In
Randolph, the Supreme Court addressed a situation where police had entered a home, over the
defendant’s objection, based upon the consent of his wife. In finding the consent invalid, the
Court reasoned that “[s]ince the co-tenant wishing to open the door to a third party has no
recognized authority in law or social practice to prevail over a present and objecting tenant, his
disputed invitation, without more, gives a police officer no better claim to reasonableness in
entering than the officer would have in the absence of any consent at all.” Randolph, 547 U.S. at
16
114. Nevertheless, “a consensual search will stand where a potential objector . . . never refused
consent—even if he was available.” United States v. Ayoub, 498 F.3d 532, 540 (6th Cir. 2007)
(citing Randolph, 547 U.S. at 121); see also Fernandez v. California, --U.S.--, 134 S. Ct. 1126,
1134-36, 188 L. Ed. 2d 25 (2014) (consent to search given by co-occupant of apartment valid,
even though defendant had previously objected to search at threshold of apartment, because cooccupant’s consent was obtained when defendant was not physically present due to his
subsequent lawful arrest).
It is against this legal landscape7 that the Court considers whether there exists genuine
issues of material fact as to whether defendants violated plaintiff’s Fourth Amendment rights.
With respect to the incidents on April 15 and April 17, 2013, defendants maintain that Kory and
Tanya had apparent authority to consent to the officers entering plaintiff’s residence. (Def. MSJ
at 634, 649-50.) In particular, defendants rely on the following facts: (1) Kory and Tanya listed
plaintiff’s home as their residence on their licenses; (2) both individuals received mail at the
house; and (3) they both had possessions in the home. Defendants further note that Officer
Garinger, in particular, was aware that a similar property dispute arose among the parties in
August of 2012. (Garinger Decl. ¶ 4.) Plaintiff does not deny that Kory and Tanya identified her
home as their residence on their licenses. (K. Engle Dep. at 851, 854.) She further admits that
their property was in her house; a fact that is evident from the sign plaintiff made when she
returned home from surgery. (Id. at 826; see Doc. No. 128-2 at 666.)
7
In her opposition brief, plaintiff directs the Court’s attention to case law governing vehicle and other investigatory
stops, including issues relating to reasonable suspicion. (See Def. Mot. MSJ Opp’n at 1296-1298.) This case law is
inapposite as the officers were not conducting a Terry stop at any time during their interactions with plaintiff.
17
April 15 Entry
Defendants rely heavily upon the Sixth Circuit’s decision in United States v. Penney, 576
F.3d 297 (6th Cir. 2009). There, defendant’s girlfriend, who lived with defendant “off and on[,]”
went to the police department to lodge a domestic violence complaint against defendant after
defendant had “pushed [her] out” of the residence. Id. at 301. The girlfriend did not have a key to
the residence, but offered information on the location of drugs in the residence. After defendant’s
arrest, the police obtained the girlfriend’s permission to search the residence. The following day
when defendant was released from custody, he advised the police that the girlfriend did not live
with him and had no authority to consent to the search. In upholding the search, the court found
that officers reasonably relied on the girlfriend’s apparent authority to consent to a search of the
residence by virtue of the following: (1) the officers knew that the girlfriend had, on occasion,
lived with defendant; (2) she had advised the police that she was living with defendant when he
kicked her out of the residence earlier that day; (3) her appearance confirmed a recent violent
altercation; (4) she kept a car at the residence; and (5) she was familiar with the contents of the
residence. Id. at 307-08.
The Court agrees that, had plaintiff been absent from the home at the time of the entry,
there would be little doubt that the officers could have relied on Kory’s apparent authority to
consent to a search of the residence, as did the police in Penney. The fact that he listed plaintiff’s
home as his residence on his license and received mail at the residence, coupled with the fact that
his personal effects were in the home and he indicated that he had recently resided in the home,
would normally leave a reasonable officer to conclude that Kory exercised common authority
18
over the premises.8 See, e.g., Harajli v. Huron Twp., 365 F.3d 501, 505-06 (6th Cir. 2004)
(apparent authority existed where third party listed defendant’s house as her residence, she
possessed a garage-door opener, and police knew that she had lived in the house in the past);
Rhodes v. McDannel, 945 F.2d 117, 119 (6th Cir. 1991) (third party had apparent authority
where she had previously called the police from the location in question and referred to the
residence as her home address); Johnson v. Wolgemuth, 257 F. Supp. 2d 1013, 1033-34 (S.D.
Ohio 2003) (warrantless search valid where consenting third party met police at the door of the
residence, and the third party listed the home as his residence on his hunting license).
The fact remains, however, that plaintiff was present during the entry into her home.
Nonetheless, defendants insist that plaintiff did not expressly object to the search and, instead,
merely pointed out that Kory did not have a key and his name was not on the mortgage or a lease
to the premises. Again, had plaintiff not been present, these facts would not have necessarily
called into question his apparent authority. See, e.g., Penney, 576 F.3d at 308 (apparent authority
was not destroyed by the fact that the consenting girlfriend did not have a key to the residence
and was not listed on the lease); United States v. Clay, 1 F. Supp. 3d 688, 693 (E.D. Ky. 2014)
(holding that the fact that live-in girlfriend did not have a key, her name was not on the lease,
and her statements were only corroborated by evidence found after the entry did not vitiate her
ability to consent to a search, and noting that there is no case authority requiring a consenting cohabitant to produce a key or a lease) (citing Waller, 426 F.3d at 846).
Defendants’ argument cannot carry the day on summary judgment because there is a
8
In her opposition to summary judgment, plaintiff now suggests, without any supporting evidence, that Kory lost his
license in 2010. This unsworn statement cannot defeat summary judgment. See, e.g., Alexander v. CareSource, 576
F.3d 551, 561 (6th Cir. 2009).
19
disputed question of fact as to whether plaintiff expressly objected to the search. Plaintiff’s
deposition testimony, if believed, establishes that she did more than simply point out the absence
of a key or a lease.9 Plaintiff testified that, in response to the officers’ representation that they
were going to follow Kory into the residence, she specifically said “no,” a fact she reiterated
several times during the course of her deposition. (K. Engle Dep. at 829-30; see id. at 838 [when
Kory came through the window “because the cops told him to come through that window. Get
through that window right now and get us in the back door. I go no, this is not your home, it’s not
their home.”]) (emphasis added). She also attempted to lock the window to prevent Kory from
entering her home; another indication that she was objecting to the search. (Id. at 830.) Once
inside the residence, she continued to protest, advising the officers “they [Kory and Tanya] don’t
live here and you have no right and they just continued to come in.” (Id.) These facts, if believed,
would support a finding that plaintiff expressly objected to the search and serve to defeat
defendants’ request for summary judgment.10 See United States v. Tatman, 397 F. App’x 152,
161 (6th Cir. 2010) (defendant expressly objected to search by informing the officer that the
consenting third party had no right to let him in and did not live there); see, e.g., Van Pelt v.
Cordes, No. 4:04-CV-47, 2005 WL 1907240, at *6 (W. D. Mich. Apr. 28, 2005) (defendant’s
repeated insistence that the consenting third party did not live there and had no right to consent,
at a minimum, required the officers to make further inquiry) (citing Rodriquez); see also United
States v. Ho, 94 F.3d 932, 934-35 (5th Cir. 1996) (consent withdrawn because defendant
9
Of course, these were not just random facts known to the police. Plaintiff offered these facts as a direct response to
the officers’ representation that Kory and Tanya lived there, and were part of plaintiff’s overall objection to the
entry.
10
Because plaintiff concedes that no officer entered her home at any time during the second and third visit on April
15, 2013, these visits cannot support a Fourth Amendment violation.
20
attempted to grab portfolio back from officers); United States v. Fuentes, 105 F.3d 487, 489 (9th
Cir. 1997) (consent withdrawn because suspected shouted “no, wait” when officers reached in to
grab object from defendant’s pocket).
Defendants argue that, even if a constitutional violation occurred, the responding
officers—McGowan and Randall11—are entitled to qualified immunity. Qualified immunity
shields public officials who perform discretionary functions, such as police officers, from civil
liability so long as their conduct does not violate clearly established rights of which a reasonable
official would have known. See Fisher v. Harden, 398 F.3d 837, 842 (6th Cir. 2005) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). It protects
“all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475
U.S. 335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986). Whether qualified immunity applies
turns on the “‘objective legal reasonableness’ of the official’s actions, viewed on a fact-specific,
case-by-case basis.” Armstrong v. City of Melvindale, 432 F.3d 695, 699 (6th Cir. 2006) (citation
omitted).
To analyze claims of qualified immunity, the Court uses a two-part test: “(1) whether,
considering the allegations in a light most favorable to the party injured, a constitutional right has
been violated, and (2) whether that right was clearly established.” Estate of Carter v. City of
Detroit, 408 F.3d 305, 310-11 (6th Cir. 2005) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.
Ct. 2151, 150 L. Ed. 2d 272 (2001)); see Bazzi v. City of Dearborn, 658 F.3d 598, 606-07 (6th
Cir. 2011) (citation omitted). “The contours of the right must be sufficiently clear that a
11
Plaintiff suggests that as many as four officers responded to her residence on April 15, 2013, but, even with
discovery, was unable to identify any officer other than McGowan. Because defendants concede that Officer Randall
accompanied McGowan on the first visit on April 15, 2013, the Court presumes that any question of qualified
immunity would be limited to them.
21
reasonable official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). If the controlling law is
not clearly established, an official cannot be liable because “a reasonable person would not be
expected to know how to structure his conduct to avoid liability.” Mendoza v. Block, 27 F.3d
1357, 1361 (9th Cir. 1994) (quotation marks and citations omitted).
The Court finds that the same questions of fact that preclude summary judgment in
defendants’ favor on the underlying Fourth Amendment claim also stand in the way of a
summary judgment determination as to the availability of qualified immunity. There can be little
doubt that clearly established law provides that, “[e]ven with the consent of a person with
common authority . . . the police generally may not enter when another occupant of the home is
physically present and expressly refuses to permit entry.” Smith, 821 F.3d at 709 (citing
Randolph, 547 U.S. at 106). If the facts are as plaintiff has testified in her deposition, qualified
immunity would be unavailable on this claim. Accordingly, the Court must leave to a fact finder
the question of whether such an objection was made.
April 17, 2013 Entry
With respect to the subsequent entry on April 17, 2013, defendants rely on Tanya’s
apparent authority growing out of the address on her driver’s license, the receipt of mail in the
house, and the fact that it was previously confirmed that her possessions were in the house.
Viewing the evidence in a light most favorable to plaintiff, it appears that plaintiff did object to
the presence of officers in her home near the end of the encounter. (K. Engle Dep. at 879 [after
22
the alleged “strip search” plaintiff said “just everybody get out of my house”].)12 While not
conceding this point, defendants note that the officers were already inside when defendant found
Tanya and Officer Garinger at the foot of her staircase. They argue that, once inside, any
objection by plaintiff came too late to invalidate the consent. In support, defendants cite Hays v.
Bolton, 488 F. App’x 971 (6th Cir. 2012). In Hays, a homeowner came out of his bedroom to
find officers in his home. When he questioned their authority, he was informed that his daughter,
whom the homeowner had previously expelled from the home, had let them in. In affirming the
district court’s grant of qualified immunity to the officers, the Sixth Circuit panel determined that
the Supreme Court’s decision in Randolph “cabin[ed] an objecting co-tenant’s power” to where
“he voiced his objection as part of the initial discussion of consent to enter the premises.” Id. at
977 (“Randolph limits, clearly and succinctly, an objecting co-tenant’s ability to vitiate the
previously given consent of his co-tenant to situations where the objecting co-tenant voices his
complaint before the search or entry has taken place.”) (citing Randolph, 547 U.S. at 121).
In so ruling, the court in Hayes distinguished another panel decision in Tatman. There,
defendant’s girlfriend led the police across the threshold of the residence where they encountered
the defendant. He asked the officers how they gained entry into the house, and he was informed
that the girlfriend let them in. The defendant responded to this information with the following: “I
told [the officer] that [the girlfriend] had no right to let him in, she had no right to be there, she
did not live there.” Id. at 158. The officer insisted that the defendant never objected, but the
district court credited the defendant’s account and invalidated the search. On appeal, the Sixth
12
Plaintiff also testified that she “asked about the warrants,” but there is no indication in her deposition testimony
that she expressly objected to the search. (K. Engle Dep. at 870.) Rather, in her initial interactions with the
responding officers, plaintiff was focused on obtaining their assistance in removing Tanya from the house and
preventing her from absconding with plaintiff’s property. (Id. at 868, 870, 878.)
23
Circuit affirmed the grant of defendant’s motion to suppress, finding that defendant was present
and standing in the doorway objecting well before the search commenced. Id. at 162. The court
observed, however, that even if defendant’s objection had come too late under Randolph, his
objection would operate as a withdrawal of the girlfriend’s consent, noting that “[i]t stands to
reason that because a physically present co-occupant’s denial of consent overrides another cooccupants consent, and a consenting party can withdraw his or her consent at any time during the
course of a search, [defendant’s] objection to [the officer’s] presence at the very least operated to
withdraw the consent previously given by [the co-occupant].” Id. at 163.
While the Court finds the analysis in Tatman persuasive, such that the factual dispute
over the existence of a belated objection might frustrate summary dismissal of the underlying
Fourth Amendment claim, the responding defendants are still entitled to qualified immunity for
this entry into the home. The Court cannot find that the reasonable officer would necessarily treat
plaintiff’s belated objection as the equivalent of a withdrawal of consent by a previously
agreeable co-occupant. That said, the Court does not believe that the upshot of Randolph13 is to
vitiate the well-established right to withdraw consent, nor can it be understood to permit officers
unfettered discretion to extend a consent search indefinitely over a resident’s subsequent
objection. Still, unlike the first objection on April 15, 2015, which occurred before the officers
entered the residence, plaintiff’s objection on April 17, 2015 came, if at all, long after the
officers had obtained consent to enter the home. See Hayes, 488 F. App’x at 978-79. As such, it
was reasonable for the responding officers—McGowan and Garinger—to rely on Tanya’s prior
13
Though the ruling came out after the searches at issue in this litigation, in Fernandez, the Supreme Court
essentially confirmed that the ruling in Randolph was limited to the situation where the objecting resident “is
standing in the door saying ‘stay out’ when officers propose to make a consent search[.]” Fernandez, 134 S. Ct. at
1136.
24
consent, and they are entitled to qualified immunity for the entry into the home on April 17,
2013.
April 17, 2013 Search of Plaintiff
Plaintiff also claims that her Fourth Amendment rights were violated when EMS workers
purportedly examined her surgery scar. Defendants dispute that the examination took place, but,
in any event, they argue that the Fourth Amendment does not apply to paramedics who respond
to a 911 call and provide medical assistance. See Hearing v. Sliwowski, 712 F.3d 275, 281-82
(6th Cir. 2013) (granting school nurse qualified immunity for visual examination of student’s
genital area, and rejecting the position that “it is clearly established under [Sixth Circuit]
precedent that the conduct of a school nurse giving medical aid to students is subject to the
standard of reasonableness imposed by the Fourth Amendment”).
Plaintiff admits that she was examined by EMS workers (and not the police). (Def. MSJ
Opp’n at 1305.) Defendants suggest that “[t]he mere presence of an officer during a medical
examination or procedure does not convert the procedure into a search entitled to Fourth
Amendment protections.” (Def. MSJ Reply at 1535 [citing United States v. Shepherd, Criminal
No. 13-25-ART-EBA-(3), 2014 WL 4594565 (E.D. Ky. Sept. 15, 2014)].) Rather, defendants
note that “the police officer must have instigated, encouraged or participated in the search.
Second, the individual must have engaged in the search with the intent of assisting the police in
their investigative efforts.” United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985) (citations
omitted). This much may be true, but, contrary to defendants’ representation that plaintiff
“makes no allegations against Officer Garinger other than he was present for the medical
examination,” (see Def. MSJ Reply at 1535), plaintiff quite clearly testified that Officer Garinger
instructed plaintiff to show her scar to EMS—a fact defense counsel deliberately drew out in
25
plaintiff’s deposition. (K. Engle Dep. at 906.) Thus, there is, at least, a factual dispute as to
whether Officer Garinger instigated or encouraged the search. Further, plaintiff testified that
Officer Garinger instructed her to present her scar to “prove” that she had recently undergone
surgery. (Id. at 905-06 [“So Garinger called [EMS] and said that’s what – they are here to go
over you to see if or what to prove that I had surgery.”].) Because there are factual disputes as to
whether Officer Garinger instigated the EMS search as a means to further the police
investigation, defendants are not entitled to summary judgment on this portion of plaintiff’s
Fourth Amendment claim. These same factual disputes preclude a determination as to the
availability of qualified immunity.
Defendants also seek summary judgment on plaintiff’s claim that she was forced to
undergo a mental health evaluation, a process which she refers to as being “pink slipped.” In her
deposition, she testified that it was a paramedic who suggested that she go to the hospital for an
adult evaluation and handed her a “pink slip” to give to the hospital. (K. Engle Dep. at 878, 880,
881.) She also conceded that she voluntarily agreed to go to the hospital with a friend. (Id. at
880; see also Garinger Decl. ¶ 10.) Further, she makes no allegation, either in her pleading or in
her deposition, that she was held against her will at the hospital. Given these undisputed facts,
plaintiff cannot establish that her voluntary trip to the hospital constituted a Fourth Amendment
violation.
June 4, 2013 Visit
As to the visit by Officer Garinger on June 4, 2013, defendants argue that they cannot be
liable because Garinger remained in a public place—plaintiff’s front porch—at all times during
the encounter with plaintiff. Once again, factual disputes prevent the Court from dismissing this
claim on summary judgment.
26
“Knocking on the front door of a home in order to speak with the occupant—a so-called
‘knock and talk’—is generally permissible.” Smith, 821 F.3d at 712 (citing United States v.
Thomas, 430 F.3d 274, 277 (6th Cir. 2005)). “Though the threshold of a house is especially
protected by the Fourth Amendment, and police may not gather information even from a
person’s front porch without authorization, the police are authorized to conduct a ‘knock and
talk’ for as long as they have consent.” Id. (internal and subsequent citations omitted). When the
consent evaporates, so does the officer’s “authority to continue the interaction.” Id. (citation
omitted). Moreover, “[w]hen an officer coerces a person to answer his questions, or forces his
way into a private home, he exceeds the scope of a consensual ‘knock and talk’ and thus intrudes
on Fourth Amendment rights.” Id.
While defendants insist that Officer Garinger remained on the porch and engaged
plaintiff in a consensual discussion, plaintiff described a very different encounter in her
deposition. Plaintiff testified that she instructed Officer Garinger to get off her back porch and
she would open the door and come out. Instead of complying with this request, she claims that
Garinger pushed the door open, forcing plaintiff into the refrigerator and propelling himself into
the kitchen. (K. Engle. Dep.at 924; see id at 926 [in response to the question of whether Officer
Garinger entered the home, plaintiff stated “He came right into – yeah, the door of the back door
was open. He stood right inside there so was in the home, yes, standing there.”].)14
14
Defendants allege that plaintiff is now attempting to contradict her deposition testimony wherein defendants claim
she stated that only Nettle entered the house on June 4, 2013. (Def. MSJ Reply at 1532.) The Court does not
interpret plaintiff’s deposition as drawing this distinction. Viewing plaintiff’s deposition testimony in a light most
favorable to her, as this Court must on summary judgment, the Court finds that plaintiff explained that while Nettle
went through the house, “all this time Garinger’s in my kitchen.” (K. Engle Dep. at 931.) Likewise, in response to
the question “And Garinger was standing there?” plaintiff responded: “We’re all standing in the kitchen.” (Id.) Both
statements are entirely consistent with her position in opposition to summary judgment.
27
Plaintiff also points to a photograph of a foot in her doorway that she alleges belonged to
Officer Garinger. If this was the extent of her evidence, this claim would be subject to dismissal,
either on the merits or on the basis of qualified immunity. See Smith, 821 F.3d at 714 (in granting
qualified immunity to a police officer for one of several encounters with the plaintiff, the Sixth
Circuit recently observed that they “have found no cases holding that preventing the closure of
the door to a home to briefly extend a consensual interview violates the Constitution”). In her
deposition, however, plaintiff clearly describes, with substantial detail, an encounter that
extended well beyond the doorway and ended with an officer purportedly forcing his way into
the home. The Court may not, on summary judgment, resolve this factual dispute in favor of
defendants. See, e.g., id. at 710 (“Though appellees’ position is supported by Sergeant World’s
deposition testimony, Smith contradicts this with her own testimony. The district court was not
entitled to discount Smith’s word even if it judged the officer to be more credible.”) (citing
Anderson, 477 U.S. at 255).
C.
Conspiracy
Plaintiff fails, however, to establish genuine issues of material fact with respect to her
federal conspiracy claim. To maintain a claim for civil conspiracy under 42 U.S.C. § 1983, a
plaintiff must show an agreement between two or more persons to injure her by unlawful action.
Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (quotation marks and citation omitted).
While an express agreement among all conspirators is not necessary, a plaintiff must show a
single plan to violate her rights, that the alleged conspirators shared in the general conspiratorial
objective, and that an overt act was committed in furtherance of the conspiracy that caused the
alleged injury. Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011) (citing Hooks v.
Hooks, 771 F.2d 935, 944 (6th Cir. 1985)) (quotation marks omitted). Defendants posit that they
28
are entitled to summary judgment on plaintiff’s civil conspiracy claim because plaintiff has
failed to support this claim with more than conjecture and speculation. The Court agrees.
Plaintiff points to no evidence that would demonstrate a shared plan to violate her
constitutional rights or otherwise cause her harm. Instead, in deposition testimony, she merely
offered her unsubstantiated belief that Officer Randall obtained the information he put in his
police report from Tanya (K. Engle Dep. at 849.) She further muses that she “found out that
Tanya had lied and that I do believe that the officers had conspired with Tanya because why
would they not – when I said they don’t live here, to me they should have stopped and not let
them in.” (Id. at 850-51; see id at 852 [“I believe to be the fact that – again, that when I told him
to not – that they did not live there, they had no reason to have Kory come in that house so they
were conspiring with the police and Tanya and Kory perhaps to do this”].)
In opposition to summary judgment, plaintiff, for the first time, suggests that Tanya had a
prior connection with defendant officers because she worked at a local restaurant that was a
“known hangout for [A]kron and [C]uyahoga Falls police.” (Def. MSJ Opp’n at 1311.) While
she points to nothing in the record that would support this conclusion, such an observation is not
even properly before the Court because it contradicts her deposition testimony. At her
deposition, plaintiff conceded that she did not know if Kory or Tanya knew anybody who
worked for the Cuyahoga Falls Police Department. (K. Engle Dep. at 857-58.) It is well settled
that “‘a party cannot create a genuine issue of material fact by filing an affidavit, after a motion
for summary judgment has been made, that essentially contradicts his earlier deposition
testimony.’” Hampton v. Nat’l Am. Red Cross, 3 F. Supp. 3d 612, 616 (W.D. Ky. 2014) (quoting
Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997)). It follows, therefore, that
plaintiff cannot generate a fact dispute with a contradictory unsworn statement.
29
Ultimately, plaintiff has failed to defend against defendants’ properly supported motion
for summary judgment with any evidence that takes her conspiracy claim beyond the allegations
in the FAC. Defendants, therefore, are entitled to summary judgment on this claim. See Skousen
v. Brighton High Sch., 305 F.3d 520, 527 (6th Cir. 2002) (“The adverse party cannot rest solely
on the allegations made in her pleadings. Rather, she is required to set forth by affidavits or
otherwise showing that there is a genuine issue for trial.”) Moreover, because defendant Nettle
was only implicated in plaintiff’s federal conspiracy claim, he is dismissed from this action. (See
MO at 155 n.5.)
D.
Due Process
Applying a liberal construction to the FAC, this Court previously found that plaintiff had
attempted to raise a substantive due process claim. (MO at 146, 165-66.) In its Memorandum
Opinion, dated June 22, 2015, the Court expressed its skepticism that such a claim, which
appeared to be premised on the entry by various defendants into plaintiff’s home, could be
maintained when plaintiff had at her disposal the more specific Fourth Amendment search and
seizure claim to remedy this particular constitutional violation. (Id. at 166-67.) See United States
v. Lanier, 520 U.S. 259, 272 n.7, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997) (In limiting the
scope of substantive due process, the Supreme Court has held that it should not be relied upon to
couch a constitutional claim when a specific constitutional provision protects the right allegedly
infringed.) Because the parties had not briefed the issue, the Court elected to leave the matter for
summary judgment. (MO at 167.)
Plaintiff now, for the first time, attempts to assert a procedural due process claim. In
opposition to summary judgment, she insists that she was entitled to a pre-deprivation hearing
before her house was condemned. (Def. MSJ Opp’n at 1306-07.) Discovery has now closed, and
30
plaintiff has not sought leave to amend the FAC to add such a claim. A plaintiff is not entitled to
raise a new legal claim for the first time in response to the opposing party’s summary judgment
motion. See Tucker v. Union of Needletrades, Indus. & Textile Emp., 407 F.3d 784, 788 (6th Cir.
2005) (citing Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004));
Nathan v. Ohio State Univ., 984 F. Supp. 2d 789 (S.D. Ohio 2013) (“A plaintiff may not expand
his claims to assert new theories for the first time in response to a summary judgment motion.”)
(citing Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007)); Lally v.
BP Prod. N. Am., Inc., 615 F. Supp. 2d 654, 659 (N.D. Ohio 2009) (Plaintiffs “may not expand
the scope of their claims in an opposition to a summary judgment motion.”) (citation omitted).
For this reason alone, defendants are entitled to summary judgment on plaintiff’s procedural due
process claim.
Even the Court were to consider this claim on the merits, it would still be subject to
dismissal. The record establishes that Charles Nettle, the housing inspector, issued an emergency
administrative order finding plaintiff’s home to be unsafe for habitation, due to unsanitary
conditions. (Nettle Decl. ¶¶ 4-7.) According to Nettle, these unsanitary conditions “posed an
immediate danger to health and safety.” (Id. ¶ 6.) Nettle issued plaintiff a letter outlining the
violations, setting forth the process for remedying the violations, and explaining her right to
appeal his determination. The letter was posted on plaintiff’s front and rear doors. (Nettle Decl. ¶
7.)
Due process requires notice and a hearing prior to an eviction, unless there are
extraordinary circumstances where a valid governmental interest is at stake that justifies
postponing the hearing until after the eviction. Fuentes v. Shevin, 407 U.S. 67, 81-82, 92 S. Ct.
1983, 32 L. Ed. 2d 556 (1972). “Protecting citizens from an immediate risk of serious bodily
31
harm falls squarely within those ‘extraordinary situations’ contemplated in Fuentes.” Flatford v.
City of Monroe, 17 F.3d 162, 167 (6th Cir. 1994).
The extent of the unsanitary conditions is clearly depicted in numerous photographs
defendants have offered in support of their summary judgment motion. (Doc. No. 1128-3.)
Plaintiff does not challenge the accuracy of the photographs, but offers only that the mess was
not hers, and a conclusory belief that the condition of the residence did not pose a safety threat.
Obviously, the origin of the mess is not relevant to the question of whether it posed a safety
threat, and plaintiff’s conclusory belief, without more, cannot defeat defendants’ well supported
summary judgment motion. Because the condition of the house constituted an emergency
situation, plaintiff was not entitled to a pre-deprivation hearing, and plaintiff has not even
suggested that she sought and was denied a post-deprivation hearing or an appeal. As such, she
cannot maintain a procedural due process claim.
Nettle would also be entitled to qualified immunity with respect to any such claim. In
evaluating a housing official’s entitlement to qualified immunity, the relevant inquiry is whether
the official’s determination that an emergency situation existed was objectively reasonable in
light of the information he possessed. Flatford, 17 F.3d at 167. Nettle declared that he
determined that the condition of the house posed an emergency situation, and the photographs
offered support the reasonableness of that determination. (See Nettle Decl. ¶ 6; Doc. No. 128-3.)
Given that plaintiff does not even dispute the condition depicted in the photographs, Nettle
would be entitled to qualified immunity on any asserted procedural due process claim.
Additionally, to the extent that plaintiff has attempted to raise a substantive due process claim to
address the search and seizures identified in the FAC, the appropriate vehicle is a claim under the
Fourth Amendment. See Boone v. Spurgess, 385 F.3d 923, 933 (6th Cir. 2004) (“a specific
32
constitutional guarantee—that all seizures be reasonable—trumps a more general guarantee—
that all government action conform with substantive due process”) (citation omitted).
E.
Statutory Immunity and State Claims
Defendants claim an entitlement to immunity with respect to plaintiff’s state tort claims
for trespass and intentional infliction of emotional distress. Ohio Rev. Code § 2744.03 provides
immunity from tort actions for employees of political subdivisions acting in a governmental or
proprietary function, and lays out specific exceptions. Chesher v. Neyer, 477 F.3d 784, 796 (6th
Cir. 2007). Specifically, immunity is not available to an employee who has acted “manifestly
outside the scope of [his] employment[,]” acted “with malicious purpose, in bad faith, or in a
wanton or reckless manner[,]” or where “liability is expressly imposed upon the employee by a
section of the Revised Code.” Ohio Rev. Code § 2744.03(A)(6)(a)-(c).
All of the acts that form the basis for plaintiff’s state claims were performed in
connection with a “government function.” See Ohio Rev. Code § 2744.01(C)(2)(a). Plaintiff has
pointed to no evidence that would establish that defendants were acting outside of the scope of
their duties at any time when they allegedly gained entry to her home and, in fact, she alleges
that the officers were acting “in their capacity as law enforcement officers[.]” (FAC ¶ 13.)
Additionally, plaintiff has failed to identify any section of the Ohio Revised Code that expressly
imposes liability for the actions alleged in the FAC, and the Court is not aware of any such
provision. Therefore, the city officers will be entitled to immunity on plaintiff’s state tort claims
unless they acted with malicious purpose, in bad faith, or in a reckless manner.
For purposes of § 2744.03(A)(6), “malice” represents “‘the willful and intentional design
to do injury, or the intention or desire to harm another, usually seriously, through conduct which
is unlawful or unjustified.’” Woods v. Miamisburg City Sch., 254 F. Supp. 2d 868, 881 (S.D.
33
Ohio 2003) (quoting Jackson v. Butler City Bd. of City Comm’rs, 602 N.E.2d 363, 367 (Ohio Ct.
App. 1991)); see Pearl v. City of Wyoming, No. C-120563, 2013 WL 3328858, at *2 (Ohio Ct.
App. June 28, 2013) (“maliciousness” is defined as “‘indulging or exercising malice; harboring
ill-will or enmity’”) (quoting Teramano v. Teramano, 216 N.E.2d 375, 377 (Ohio 1966)) (further
citation omitted). “Bad faith” implies sinister motive that has “no ‘reasonable justification.’”
Hicks v. Leffler, 695 N.E.2d 777, 780 (Ohio Ct. App. 1997) (quoting Zoppo v. Homstead Ins.
Co., 644 N.E.2d 397, 399-400 (Ohio 1994)). It embraces more than bad judgment or negligence.
Id. (citation omitted). Rather, it suggests “dishonest purpose, moral obliquity, conscious
wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the
nature of fraud.” Pearl, 2013 WL 3328858, at *2. “Wanton misconduct” is “the failure to
exercise any care whatsoever.” Fabrey v. McDonald Vill. Police Dep’t, 639 N.E.2d 31, 35 (Ohio
1994) (citation omitted); see Shoup v. Doyle, 974 F. Supp. 2d 1058, 1089-90 (S.D. Ohio 2013)
(“‘Wanton misconduct is the failure to exercise any care toward those to whom a duty of care is
owed in circumstances in which there is great probability that harm will result.’”) (quoting
Anderson v. City of Massillon, 983 N.E.2d 266, 267 (Ohio 2012)). “‘Reckless conduct is
characterized by the conscious disregard of or indifference to a known or obvious risk of harm to
another that is unreasonable under the circumstances and is substantially greater than negligent
conduct.’” Id. at 1090 (quoting Anderson, 983 N.E.2d at 267). As a general rule, “issues
regarding malice, bad faith, and wanton or reckless behavior are questions presented to the jury.”
Anderson, 951 N.E.2d at 1069 (quotation marks and citation omitted).
As set forth above, questions of fact remain as to whether defendants acted recklessly
with respect to plaintiff’s right to be free from unlawful searches and seizures. Knowingly
entering a private citizen’s home without authorization and facilitating an unreasonable search of
34
the citizen’s person would certainly constitute reckless behavior, as would entering a home by
force without a warrant or a legal justification for doing so. Until a fact finder can resolve these
fact disputes, the availability of statutory immunity for plaintiff’s state tort claims cannot be
determined.
Even if the Court could rule on the issue of statutory immunity, questions of fact would
remain on the underlying state tort claims. In support of their request for summary judgment on
plaintiff’s state trespass claim, defendants argue that “the officers reasonably believed that they
had the consent of Mr. Engle and Ms. Hess to enter the property on April 15 and April 17. Ms.
Engle invited the officers onto her property on June 4 . . . [and] Officer Garinger remained in the
doorway to discuss Ms. Engle’s call.” (Def. MSJ at 662.) Because the unresolved issues of
material fact go to these very issues, summary judgment on this claim would be inappropriate.
Similarly, defendants rely on these same disputed facts in arguing that plaintiff has failed to set
forth evidence of extreme and outrageous conduct. (Def. MSJ at 663.) Accordingly, their request
for summary judgment on plaintiff’s intentional infliction of emotional distress claim must also
be denied.
IV. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff also seeks summary judgment on all claims in the FAC. In essence, her motion
consists of a running narrative of the facts as she views them. Although plaintiff is proceeding
without the assistance of counsel, her pro se status does relieve her of the obligation to set forth
admissible evidence showing that there is no genuine issue of material fact and that she is
entitled to judgment in her favor as a matter of law. This is the threshold requirement for all
parties who seek summary judgement under Rule 56 of the Federal Rules of Civil Procedure. See
Sixty Ivy St. Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). Plaintiff’s motion rests on
35
the same disputed facts upon which defendants attempted to rely in their request for summary
judgment. While plaintiff was entitled to have the Court view the facts in a light most favorable
for her when it considered defendants’ summary judgment motion, she is entitled to no such
indulgence when the Court considers her dispositive motion.
If the facts are viewed in the light most favorable to defendants, the evidence shows that
Kory and Tanya had apparent authority to consent to the officers’ entries into plaintiff’s home on
April 15 and April 17, 2013. The officers were entitled to rely on this consent and plaintiff did
not say or do anything to revoke or call into question this grant of permission. Additionally,
neither the examination of plaintiff by EMS, nor the “knock and talk” visit on June 4, 2013,
impinged upon plaintiff’s constitutional or state statutory rights. If defendants are to be believed,
the examination by EMS was neither orchestrated by nor designed to assist the police. In like
fashion, defendants’ evidence, if believed, would establish that Officer Garinger merely
responded to plaintiff’s call to police on June 4, 2013, during which he permissibly remained, at
all times, on plaintiff’s porch as he engaged her in a consensual discussion. Again, Plaintiff’s
evidence to the contrary merely highlights the fact that there remain significant disputed facts
that necessitate a jury trial.
Defendants also complain that plaintiff has impermissibly attempted to use her summary
judgment motion to raise new claims that do not appear in the FAC. In particular, defendants
accuse plaintiff of raising new claims for false arrest, causing plaintiff to be “pink-slipped” (or
forcing her to undergo a mental health evaluation), and unlawful strip search. Applying a liberal
interpretation to plaintiff’s pro se pleading, see Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct.
594, 30 L. Ed. 2d 652 (1972), the Court finds that the issue relating to the physical inspection by
EMS, which plaintiff inartfully refers to as a “strip search,” was properly pled as a predicate fact
36
supporting her Fourth Amendment claim. (FAC ¶ 14.) The Court agrees, however, that plaintiff
did not properly plead facts that would support a claim that she was falsely arrested, and she may
not do so at this late date. See Bridgeport Music, 508 F.3d at 400. Additionally, to the extent that
the FAC appears to resurrect the previously dismissed excessive force claim, those allegations
are hereby struck. (See FAC ¶¶ 20, 22; MO at 163.)
V. CONCLUSION
For all of the foregoing reasons, defendants’ motion for summary judgment (Doc. No.
128) is GRANTED IN PART. Specifically, plaintiff’s conspiracy claim, her due process claim,
and her Fourth Amendment claim—to the extent it seeks redress for the April 17, 2013 entry into
her home—are dismissed. Additionally, defendants Schmidt, McIlvain, Ralston, Luggelle,
Holzapfel, Heinl, and Nettle are dismissed as party defendants. Plaintiff’s summary judgment
motion (Doc. No. 134) is DENIED IN FULL. Assuming the remaining parties are unable to
reach an amicable resolution of this matter, this case shall proceed to trial on the surviving
portions of plaintiff’s Fourth Amendment claim, her claim for intentional infliction of emotional
distress, and her trespass claim. Where applicable, defendants will be able to request qualified
and/or statutory immunity for these claims at trial.
IT IS SO ORDERED.
Dated: August 1, 2016
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
37
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?