Schuler v. Village of Newcomerstown, et al

Filing 13

Memorandum Opinion and Order: For all of the foregoing reasons, as well as the reasons set forth by the Newcomerstown defendants in their memorandum and reply in support of their motion, defendant Newcomerstown Police Department is dismissed from this action as to all claims. Defendant Village of Newcomerstown is dismissed from this action with respect to plaintiff's state law claims. Additionally, the Newcomerstown defendants' motion for partial judgment on the pleadings is g ranted on plaintiff's federal and state law claims with respect to counts 1, 2, 3, 4, 5, 6, 7, 8, and 9, except as to plaintiff's conspiracy claims. In accordance with the Court's instructions, plaintiff is ordered to show cause why defendants Addy and Barnes should not be dismissed from this action. (Related Doc. No. 9 ). Judge Sara Lioi on 3/31/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

POLYANNA SCHULER,
PLAINTIFF,

vs.

VILLAGE OF NEWCOMERSTOWN,
et al.,
DEFENDANTS.

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CASE NO. 5:16-cv-1466
JUDGE SARA LIOI

MEMORANDUM OPINION AND
ORDER

This matter is before the Court on the motion of defendants Newcomerstown Police
Department (“NPD”), NPD Officer Bryan Eubanks (“Eubanks”), NPD Chief Gary Holland
(“Holland”), and the Village of Newcomerstown (“Village”) (collectively “Newcomerstown
defendants” or “defendants”) for partial judgment on the pleadings. (Doc. No. 9 [“Mot.”].)
Plaintiff Polyanna Schuler (“plaintiff” or “Schuler”) has opposed the motion (Doc. No. 11
[“Opp’n”]), to which defendants replied (Doc. No. 12 [“Reply”]). For the reasons that follow,
defendants’ motion for partial judgment on the pleadings is granted.

I. BACKGROUND
A. The Complaint
This case arises from a dispute between plaintiff and defendants Emerald Barnes
(“Barnes”) and Susan Addy (“Addy”) concerning a vehicle. During all relevant times, defendant
Holland was chief of the NPD, and Eubanks was an NPD officer.1 The following factual
background is taken from plaintiff’s complaint. (Doc. No. 1 (Complaint [“Compl.]).)
On or about August 19, 2014, plaintiff and Barnes purchased a 2013 Hyundai Sonata
(“vehicle”) from Decosky Ford, Inc. The purchase was financed by Wells Fargo, and plaintiff
signed as the buyer and Barnes as the co-buyer. (Id. ¶¶ 17-18.) The vehicle was titled to Barnes,
and she made the payments and possessed the vehicle until December 2014. (Id. ¶ 19; Doc. No.
8-1.)
Addy took possession of the vehicle from Barnes in January 2015 and began making the
payments because Barnes was moving to Japan. (Id. ¶¶ 20-21.) In February 2015, plaintiff
contacted Wells Fargo and requested that her name be added to the title of the vehicle. (Id. ¶ 22.)
On April 17, 2015, plaintiff “reclaimed” the vehicle from Addy. (Id. ¶ 24.) That same day, NPD
Officer Jennifer Lowery2 (“Lowery”) contacted plaintiff regarding the vehicle, as did Coshocton
County Sheriff Deputy Mark Sharrock3 (“Sharrock”). According to the complaint, Sharrock told
plaintiff that the NPD “was threatening to list the vehicle as stolen and issue a felony warrant for
[p]laintiff’s arrest.” (Id. ¶¶ 24-25.) Based on the call from Lowery and “threats of felony
Holland and Eubanks are sued in both their individual and official capacities. (Doc. No. 1 (Complaint [“Compl.])
¶¶ 9, 10.) A suit under § 1983 against a defendant in his “official capacity” is equivalent to a suit against the local
government entity. Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989).
1

2

Lowery is not a defendant in this case.

3

Sharrock is not a defendant in this case.
2

charges” by the NPD, plaintiff drove to the NPD and surrendered the vehicle. At the NPD,
plaintiff alleges that she “was again threatened with felony charges and incarceration” by
unknown NPD officers. (Id. ¶ 26.) After plaintiff left the NPD, she was stopped by an unknown
NPD officer to obtain any “extra keys” to the vehicle. Plaintiff alleges that the sole basis for the
stop was to obtain the keys and plaintiff was not issued a citation. (Id. ¶ 27.)
Lowery submitted a “prosecution packet” to the Tuscawaras County Prosecutor in
connection with the events of April 17, 2015. (Id. ¶ 28.) The prosecutor declined to prosecute
because the matter appeared to be civil in nature and there was no evidence to support felony
charges. (Id. ¶ 30; Doc. No. 1-3.)
In June 2015, Addy contacted plaintiff and requested that she take possession of the
vehicle, and plaintiff did so. (Id. ¶ 29.) In July 2015, the title of the vehicle was modified to
include plaintiff’s name, and plaintiff made the payments to Wells Fargo. (Id. ¶¶ 31, 32; Doc.
No. 1-4.)
Barnes returned to Ohio in January 2016 and requested that plaintiff return the vehicle to
her, and plaintiff agreed to do so if plaintiff’s name was removed from the title and Wells Fargo
loan. (Id. ¶¶ 35, 36.) Barnes, however, was not able to obtain a loan for the vehicle herself, and
plaintiff and Barnes reached an impasse. (Id. ¶¶ 36-37.) Barnes advised plaintiff she would report
the vehicle as stolen since the vehicle was titled in her name. (Id. ¶ 38.)
Plaintiff claims that Holland called her on February 2, 2016 “with the express purpose of
intimidating [p]laintiff into surrendering the vehicle” to Barnes, and “renewed threats of criminal
prosecution and arrest.” (Id. ¶ 39.) Plaintiff does not allege that Eubanks ever spoke directly to
her regarding the vehicle, but that her attorney spoke to Eubanks. According to the complaint,
3

Eubanks stated to plaintiff’s attorney that the NPD would proceed with charges against plaintiff.
(Id. ¶¶ 39, 40.) The prosecutor’s office, however, advised plaintiff’s attorney that charges would
not be brought. (Id. ¶ 41.) When plaintiff’s attorney contacted Holland and requested copies of
the warrants for plaintiff’s arrest and seizure of the vehicle, Holland admitted that there were no
warrants, and “confessed” that Holland had permitted Eubanks to “bluff” plaintiff in an effort to
have her turn over the vehicle. Plaintiff also alleges that Holland admitted he contacted Wells
Fargo to obtain plaintiff’s information regarding the vehicle, and told her attorney that he would
not allow Eubanks to press charges. (Id. ¶¶ 43-45.)
Based on these facts, plaintiff filed a 10 count complaint against the Newcomerstown
defendants, Addy, Barnes, and “unknown individuals”—three federal claims alleging violations
of the Fourth Amendment pursuant to 42 U.S.C. § 1983 (counts one, eight, and nine), six mixed
federal and state claims4 (counts two through seven), and one state claim (count 10) alleging
intentional infliction of emotional distress.
B. Motion for Judgment on the Pleadings
The Newcomerstown defendants move for judgment on multiple bases. First, defendants
move for dismissal of plaintiff’s federal and state law claims against NPD on the grounds that the
NPD is not sui juris. Second, defendants move for dismissal of plaintiff’s state law claims

4

See Opp’n at 104.
4

against the Village, Holland, and Eubanks (except the conspiracy claims and count 105) on the
pleadings, and on the ground that they are immune from suit under Ohio Rev. Code § 2744.
Third, defendants move for judgment on plaintiff’s federal claims (except the conspiracy claims)
on the pleadings, and on the ground that they are entitled to qualified immunity.
The Court will first address defendants’ motion as to plaintiff’s federal claims, and then
plaintiff’s state law claims.
II. PRELIMINARY MATTERS
A. The NPD is not sui juris
The Newcomerstown defendants move for dismissal of NPD on the grounds that it is not
sui juris absent a positive statutory authority, and Ohio does not have a law that permits parties
to sue local law enforcement agencies directly. (Mot. at 746 (citing Elkins v. Summit Cnty., Ohio,
No. 5:06-CV-3004, 2008 WL 622038, at *6 (N.D. Ohio Mar. 5, 2008) (citing Papp v. Snyder, 81
F. Supp. 2d 852, 857 n.4 (N.D. Ohio 2000)).) Plaintiff concedes that the NPD is not sui juris.
(Opp’n at 102-03.)

5

In count ten, plaintiff alleges that the defendants intentionally, and with malice, inflicted emotional distress on
plaintiff by their conduct. Defendants did not move for judgment on the pleadings with respect to plaintiff’s state
law claim for intentional infliction of emotional distress. Plaintiff’s opposition notes that defendants’ motion does
not address count ten. In their reply brief, however, defendants contend that plaintiff’s claim in count ten fails as a
matter of law. “‘It is well-established that a party cannot raise new issues in a reply brief; he can only respond to
arguments raised for the first time in opposition.’” Curcio Webb LLC, v. Nat’l Benefit Programs Agency, Inc., 367 F.
Supp. 2d 1191, 1207 n.28 (S.D. Ohio 2005) (quoting In re: Firstenergy Corp. Sec. Litig., 316 F. Supp. 2d 581, 599
(6th Cir. 2004) (further citation omitted)). Because defendants did not raise the arguments made in their reply brief
in their original motion, plaintiff could not respond to those arguments in her opposition. Thus, defendants’
arguments with respect to count ten in their reply fails for procedural reasons and, to the extent that defendants’
reply brief seeks judgment on the pleadings with respect to count ten, the motion is denied without prejudice.
All references to page numbers are to the page identification numbers generated by the Court’s electronic filing
system.
6

5

The defendants have correctly stated the law with respect to this issue, and the Court
finds that the NPD is not sui juris. See Petty v. Cnty. of Franklin, Ohio, 478 F.3d 341, 347 (6th
Cir. 2007). Accordingly, defendant Newcomerstown Police Department is dismissed from this
case in its entirety with prejudice, and the Court will not further address plaintiff’s claims against
the NPD.
B. Defendants Addy and Barnes
The Court’s ruling herein does not address plaintiff’s claims against defendants Addy and
Barnes, and may not be construed as a ruling on plaintiff’s claims against those defendants. That
said, the docket in this case does not reflect that defendants Addy or Barnes have been served
with the complaint in accordance with the requirements of the Fed. R. Civ. P. 4(m). Plaintiff
shall have until April 17, 2017, to show cause why defendants Addy and Barnes should not be
dismissed from this action as a consequence of plaintiff’s failure to serve these defendants and
prosecute her claims against them. See Warrior Imports, Inc. v. 2 Crave, 317 F.R.D. 66, 69 (N.D.
Ohio 2016).
C. Leave to Amend
In opposing defendants’ motion, plaintiff states that she believes her complaint sets forth
a clear and concise recitation of her claims. (Opp’n at 113.) That said, plaintiff offered to amend
the complaint if, in the Court’s view, a more carefully drafted complaint might state a claim. (Id.)
Plaintiff does not indicate, however, what allegations, if any, would be clarified by an amended
complaint. Plaintiff has not moved to amend, and defendants have not moved for a more definite
statement of the complaint. The Court finds that there is no basis upon which to invite plaintiff to
amend her complaint before ruling on defendants’ motion.
6

III. STANDARD OF REVIEW
Fed. R. Civ. P. 12(c) provides that “[a]fter the pleadings are closed—but early enough not
to delay trial—a party may move for judgment on the pleadings.” The standard of review for a
motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a
claim for relief under Rule 12(b)(6). E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th
Cir. 2001) (citing Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998)). “For purposes of a
motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of
the opposing party must be taken as true, and the motion may be granted only if the moving
party is nevertheless clearly entitled to judgment.” JP Morgan Chase Bank, N.A. v. Winget, 510
F.3d 577, 581 (6th Cir. 2007) (quoting S. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 479 F.2d 478, 480 (6th Cir. 1973)). The district court, however, “need not accept as true
legal conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.
1999) (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).
“To survive a motion to dismiss [or for judgment on the pleadings], a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
at 678 (citing Twombly, 550 U.S. at 555). The complaint “must contain either direct or inferential
allegations respecting all the material elements to sustain a recovery under some viable legal
theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988)
(quotation marks and citations omitted) (emphasis in original). “The motion is granted when no
7

material issue of fact exists and the party making the motion is entitled to judgment as a matter
of law.” Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991)
(citation omitted).
In considering a Rule 12(c) motion, the allegations in the complaint are the Court’s
primary focus. The Court may also consider the answer, documents attached as exhibits to the
pleadings, and “‘matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint[.]’” McGath v. Hamilton Local Sch. Dist., 848 F. Supp. 2d
831, 836-37 (S.D. Ohio 2012) (quoting Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir.
2008) (further citation omitted)).
IV. PLAINTIFF’S FEDERAL CLAIMS
Pursuant to 42 U.S.C. § 1983, plaintiff alleges that certain rights under the Fourth
Amendment of the United States Constitution were violated by the defendants. “Section 1983 ‘is
not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal
rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271, 114 S. Ct. 807, 127 L. Ed. 2d
114 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n.3, 99 S. Ct. 2689, 61 L. Ed. 2d 433
(1979)). Title 42 U.S.C. § 1983 provides in relevant part that:
Every 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, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress[.]
“The terms of § 1983 make plain two elements that are necessary for recovery. First, the
plaintiff must prove that the defendant has deprived [her] of a right secured by the ‘Constitution
and laws’ of the United States. Second, the plaintiff must show that the defendant deprived [her]
8

of this constitutional right ‘under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory.’ This second element requires that the plaintiff show that the defendant
acted ‘under color of law.’” Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598,
1604, 26 L. Ed. 2d 142 (1970). The second element with respect to Holland and Eubanks is not
an issue in this case.
Turning to the first element, “[t]he Fourth Amendment protects ‘[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures[.]’” Bletz v. Gribble, 641 F.3d 743, 754 (6th Cir. 2011) (quoting U.S. Const. amend.
IV). A seizure occurs when “‘by means of physical force or a show of authority, [an individual’s]
freedom of movement is restrained.’” Id. (quoting United States v. Mendenhall, 446 U.S. 544,
553, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). To state a claim under the Fourth Amendment, a
plaintiff must allege that: (1) the defendant’s actions constituted a search or seizure within the
meaning of the Fourth Amendment; and (2) defendant’s actions were unreasonable in light of the
surrounding circumstances. See Collins v. Nagle, 892 F.2d 489, 493-94 (6th Cir. 1989).
A. Count One7
Plaintiff alleges multiple Fourth Amendment violations against different defendants
under count one.
First, plaintiff claims that: (1) Holland violated her right to be free from unreasonable
seizure of property by refusing to allow plaintiff to reclaim the vehicle in possession of Addy
(purportedly a relative of Holland (Compl. ¶ 23)), and threatening her with criminal prosecution
if she did so (id. ¶ 49); and (2) that Holland and Eubanks violated her right to be free from

7

Compl. ¶¶ 48-54.
9

unreasonable seizure of property by harassing her with unlawful threats of criminal prosecution
which prevented her use of the vehicle (id. ¶ 53).
Defendants argue that they are entitled to judgment on these claims because threats alone
do not establish a cognizable claim under § 1983. Plaintiff “agrees with this legal conclusion[,]”
but contends that this law does not foreclose plaintiff’s allegations because defendants did not
only make verbal threats, but also engaged in threatening behavior, an unlawful traffic stop, and
sought to initiate a meritless criminal case against her. (Opp’n at 106 (citing Compl. ¶¶ 24-28
(“2015 events”) and 39-45 (“2016 events”)).) Without citing a single case in support, plaintiff
contends that these allegations support a civil rights violation. Id.
With the exception of plaintiff’s conspiracy claims in counts 3 and 4, which are not now
before the Court, there are no allegations in the complaint that Holland and Eubanks did anything
more than verbally threaten plaintiff with criminal prosecution. (See Compl. ¶¶ 39-45.) Mere
words, even spoken threats of serious harm or arrest, however, do not constitute an infringement
of a constitutional right and are not actionable under § 1983. Thacker v. City of Columbus, 328
F.3d 244, 258 (6th Cir. 2003) (threats of arrest alone do not support a constitutional claim)
(citing Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989) (“Appellant’s asserted fear
from [verbal threats], however, is not an actual infringement of a constitutional right, and thus, it
is not actionable under section 1983.”)); Meyers v. Mitrovich, No. 1:14CV1604, 2015 WL
413804, at *13 (N.D. Ohio Jan. 30, 2015) (fear from threats alone is not an actual infringement
of a constitutional right) (citing Emmons, 874 F.2d at 353). Defendants are entitled to judgment
on the pleadings with respect to plaintiff’s Fourth Amendment claim against Holland and
Eubanks regarding the 2016 events.
10

Plaintiff’s factual allegations concerning the 2015 events do not allege that Holland or
Eubanks were involved in the telephone calls made to plaintiff, her surrender of the vehicle to
the NPD, the traffic stop by an unknown NPD officer for the vehicle’s keys, or the “prosecution
packet” prepared by Lowery. (See Compl. ¶¶ 24-28.) To the extent that plaintiff’s Fourth
Amendment claim against Holland and Eubanks regarding the 2015 events is based upon
respondeat superior liability, that claim fails on the pleadings.
Supervisors are not liable for the unconstitutional conduct of subordinates unless the
supervisor “at least implicitly authorized, approved, or knowingly acquiesced in” the
subordinate’s unconstitutional conduct. McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 470 (6th
Cir. 2006). “[A] prerequisite of supervisory liability under § 1983 is unconstitutional conduct by
a subordinate of the supervisor.” McQueen, 433 F.3d at 470. These prerequisites cannot be
established as to Holland and Eubanks with respect to the 2015 events because plaintiff’s factual
allegations concerning the 2015 events include only Lowery (who is not a defendant in this
action and the constitutionality of her conduct is not at issue) and unknown NPD officers or
employees. (See Compl. ¶¶ 24-28.)
Defendants are entitled to judgment on the pleadings with respect to these Fourth
Amendment claims against Holland and Eubanks.
Second, plaintiff alleges in count 1 that Holland violated her right to be free from
unreasonable searches and seizures under the Fourth Amendment by obtaining her private
financial information from Wells Fargo regarding the vehicle without a warrant, criminal
investigation, or probable cause (Id. ¶ 52). Defendants argue that they are entitled to judgment as
a matter of law with respect to plaintiff’s federal claim for invasion of privacy because: (1) the
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documents were obtained by a grand jury subpoena (a copy of which attached to defendant’s
answer at Doc. No. 8-2); and (2) even if the documents were not obtained by grand jury
subpoena, individuals do not have a privacy interest protected by the Fourth Amendment with
respect to papers possessed by a financial institution. (See Mot. at 75-76.)
In response, plaintiff ignores defendants’ argument regarding the subpoena, and argues
that defendants’ reliance on U.S. v. Miller8 is misplaced: “In Miller, the Supreme Court was
‘governed by the general rule that the issuance of a subpoena to a third party to obtain the
records of that party does not violate the rights of [an individual].’” (Opp’n at 105 (quoting
Miller, 425 U.S. at 444).) Apparently in an attempt to distinguish Miller, plaintiff contends that
the Court is required to accept as true plaintiff’s allegations that her records were “obtained in
the absence of a warrant, criminal investigation, or probable cause.” (Id. at 105 (citing Compl. ¶
43).) Thus, plaintiff argues, the “[d]efendants’ argument relative to the legality of Chief
Holland’s conduct is without merit.” (Id. at 104-05.) Essentially, plaintiff argues that the Court
should not consider documents properly before the Court on a motion for judgment on the
pleadings—or other factual allegations in her complaint—simply because the complaint contains
a single allegation to the contrary.

United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 1624, 48 L. Ed. 2d 71 (1976) (“This Court has held
repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and
conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be
used only for a limited purpose and the confidence placed in the third party will not be betrayed.”) (citations
omitted).
12
8

While it is true that when considering a motion for judgment on the pleadings the Court is
required to accept as true all the well-pleaded material allegations in the complaint, the Court is
not required to accept legal conclusions, unwarranted allegations, or factual inferences in the
complaint “‘contradicted by public records and other evidentiary materials of which the Court
may take judicial notice.’” Marshall v. Nationstar Mortg., LLC, No. 1:12-CV-852, 2015 WL
1042197, at *3 (W.D. Mich. Mar. 10, 2015) (quoting McGee v. City of Cincinnati Police Dep’t,
No. 1:06–CV–726, 2007 WL 1169374, at *2 (S.D. Ohio Apr. 18, 2007)); Mixon, 193 F.3d at
400.
Plaintiff claims that a prosecution packet was prepared by Lowery and provided to the
Tuscarawas County prosecutor (Compl. ¶ 28), that the prosecutor declined to prosecute based on
insufficient evidence (id. ¶ 30), and attaches the prosecutor’s letter to her complaint (Doc. No. 13). Defendants’ answer attaches the subpoena issued to Wells Fargo in connection with that
inquiry, which states that the required information should be provided to Lowery at the NPD.
(Doc. No. 8-2.) The subpoena may be properly considered by the Court in connection with
defendants’ motion. McGath, 848 F. Supp. 2d at 836-37. But even absent a subpoena, plaintiff
does not have a Fourth Amendment privacy interest in documents and information maintained by
Wells Fargo. See Miller, 425 U.S. at 440-43; see also Crawford v. United States Dep’t of the
Treasury, No. 3:15-CV-250, 2015 WL 5697552, at *11 (S.D. Ohio Sept. 29, 2015) (citing
Miller) (there is no reasonable expectation of privacy in information contained in bank records
because the records only contain information voluntarily conveyed to the banks and there is no
legitimate expectation of privacy in information voluntarily turned over to third parties).

13

Defendants are entitled to judgment with respect to plaintiff’s claim in count 1 that
Holland violated the Fourth Amendment by obtaining her vehicle loan information from Wells
Fargo.
B. Count Two9
Count two alleges a federal abuse of process claim against Holland, claiming he violated
the Fourth Amendment by threating plaintiff with criminal charges and submitting a
“prosecution packet” to the prosecutor without probable cause in order to intimidate her into
surrendering the vehicle. Defendants move for judgment on this claim on the ground that an
abuse of process claim is not cognizable under § 1983. (Mot. at 77.)
The Sixth Circuit “has consistently declined to recognize an abuse-of-process claim
under 42 U.S.C. § 1983.” Moore v. WesBanco Bank, Inc., 612 F. App’x 816, 823 (6th Cir. 2015)
(citing Rapp v. Dutcher, 557 F. App’x 444, 448 (6th Cir. 2014) (“[A] federal abuse of process
claim does not exist in the law of this circuit.”) (further citation omitted)). In opposing the
motion, plaintiff points the Court to no legal authority showing that an abuse of process claim is
cognizable under § 1983 in the Sixth Circuit.
Defendants’ motion for judgment as to all defendants on plaintiff’s § 1983 claim for
abuse of process is granted. See Grise v. Allen, No. 5:11-195-KKC, 2016 WL 1261077, at *6
(E.D. Ky. Mar. 30, 2016) (citing Moore, 612 F. App’x at 823 (further citation omitted)).

9

Compl. ¶¶ 55-57.
14

C. Count Three10
Count three alleges a Fourth Amendment malicious prosecution claim against Holland,
Eubanks, Barnes, and Addy, and includes a conspiracy allegation. Defendants argue that,
because there are no allegations in the complaint that criminal proceedings were ever initiated
against plaintiff, defendants are entitled to judgment on the pleadings. In response, plaintiff does
not oppose defendant’s arguments but, instead, observes that “[d]efendants have accurately
articulated the legal standards associated with . . . § 1983 civil claims . . . for malicious
prosecution, as well as the facts set forth in [p]laintiff’s Complaint. Accordingly, [p]laintiff
would merely defer to the Court relative to the federal . . . claims presented in Count Three.”
(Opp’n at 107.)
To succeed on a malicious prosecution claim premised upon a violation of the Fourth
Amendment, a plaintiff must show that: (1) a criminal prosecution was initiated against the
plaintiff and that the defendant made, influenced, or participated in the decision to prosecute; (2)
there was a lack of probable cause for the criminal prosecution; (3) as a consequence of a legal
proceeding plaintiff suffered a deprivation of liberty under the Fourth Amendment apart from the
initial seizure; and (4) the criminal proceeding was resolved in plaintiff's favor. Sykes v.
Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010). In order for plaintiff to avoid an adverse ruling
on a motion for judgment on the pleadings, the complaint must set forth allegations sufficient to
make out the elements of a right to relief. See Grizzell v. City of Columbus, Div. of Police, No.
C2-02-883, 2003 WL 21799899, at *1 (S.D. Ohio July 11, 2003) (citing Windsor v. The
Tennessean, 719 F.2d 155, 158 (6th Cir. 1983)).

10

Compl. ¶¶ 58-62.
15

There are no allegations that criminal proceedings were ever initiated against plaintiff.
Indeed, the complaint specifically alleges that the prosecutor reviewed the information regarding
the events at issue and declined to prosecute (Comp. ¶¶ 30, 41), and that Holland confirmed that
charges would not be brought (id. ¶ 45). In the absence of a criminal prosecution, plaintiff cannot
establish the elements of a Fourth Amendment claim for malicious prosecution and, in fact, has
made no effort to do so, effectively conceding that dismissal of this claim is appropriate.
Accordingly, defendants’ motion as to plaintiff’s § 1983 malicious prosecution claim is
granted.
D. Count Four11
With respect to count four, plaintiff claims that Holland and Eubanks falsely imprisoned
her in violation of the Fourth Amendment because she was stopped on the highway by an
unknown NPD officer to obtain keys to the vehicle and “understood” that she could not leave
without surrendering the keys. Count four includes a conspiracy allegation.
Defendants argue that they are entitled to judgment on plaintiff’s § 1983 claim for false
imprisonment because plaintiff was not arrested. (Mot. at 78.) Plaintiff contends that judgment in
defendants’ favor is not appropriate because, although she was not arrested, she has alleged
sufficient facts to demonstrate that she was detained in the absence of a legitimate purpose or
legal process. (Opp’n at 107-08.)
Claims of false arrest and false imprisonment under § 1983 overlap, with false
arrest being a species of false imprisonment. Wallace v. Kato, 549 U.S. 384, 388,
127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007). False imprisonment is detention
without legal process. Id. at 389.
Blackwell v. Wenninger, No. C-1-09-646, 2010 WL 654267, at *6 (S.D. Ohio Feb. 18, 2010).
11

Compl. ¶¶ 63-66.
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The only factual allegation in the complaint with respect to the stop is found at paragraph
27, where plaintiff claims that:
27. After Plaintiff delivered the vehicle to Newcomerstown P.D., she left in a
separate vehicle. As she left the area, an Unknown Individual, an officer in the
employ of Newcomerstown P.D., initiated a traffic stop. He stated that the sole
basis of the stop was to demand any extra keys to the Sonata. Plaintiff was not
issued a traffic citation, nor did the officer allege a traffic violation.
There are no factual allegations in the complaint that Holland and/or Eubanks were the
officers that stopped her for the keys to the vehicle, or that she was detained by them. Indeed, she
specifically alleges that she was detained by an unknown NPD officer.
Defendants are entitled to judgment on the pleadings with respect to plaintiff’s claim for
false imprisonment against Holland and Eubanks. This ruling does not address Fourth
Amendment claims in count four with respect to conspiracy or the actions of unknown
individuals.
E. Count Five12
In count five, plaintiff alleges that she was assaulted by Holland and Eubanks in violation
of the Fourth Amendment because she was threatened with felony prosecution, arrest, and
incarceration if she did not surrender the vehicle to the NPD and the keys to the vehicle to an
unknown NPD officer, and was in “imminent apprehension of offensive contact, to wit: an
unlawful arrest.” (Compl. ¶¶ 68-70.) Defendants seek judgment on the pleading with respect to
this claim on the grounds that plaintiff does not allege that she was ever subjected to the feared
offensive contact—arrest—and threats alone are not actionable under § 1983. (Mot. at 79.)

12

Compl. ¶¶ 67-71.
17

Plaintiff concedes that she was not arrested or physically touched, and that “any action
for excessive force should fail[.]” (Opp’n at 108.) With respect to assault, however, plaintiff
argues that the defendants’ threats to arrest her constitute an unlawful effort to force her to
surrender her property.
As discussed above in connection with count 1, threats of arrest do not constitute an
infringement of a constitutional right and are not actionable under § 1983. See Emmons, 874 F.2d
at 353. Defendants’ motion with respect to plaintiff’s federal claim in count five is granted.
F. Count Six13
In count six, plaintiff alleges that the Village and Holland, in violation of the Fourth
Amendment, “intentionally intruded upon the seclusion of Plaintiff’s private financial affairs by
obtaining, without privilege or consent, her financial records from Wells Fargo.” (Compl. ¶¶ 73.)
Count six is duplicative of plaintiff’s Fourth Amendment claim in count one and has already
been addressed by the Court. For the same reasons, defendants’ motion with respect to count six
is granted.
G. Count Seven14
In count seven, plaintiff alleges that Holland, Eubanks, Barnes, and Addy violated the
Fourth Amendment by seizing the vehicle and threatening criminal prosecution. Count seven is
duplicative of plaintiff’s Fourth Amendment claim in count one and has already been addressed
by the Court. For the same reasons, defendants’ motion with respect to count seven is granted.

13

Compl. ¶¶ 72-75.

14

Compl. ¶¶ 76-81.
18

H. Qualified Immunity
Defendants contend that even if the Court determines that Holland and Eubanks are not
entitled to judgment on plaintiff’s § 1983 Fourth Amendment claims, they are entitled to
qualified immunity. “Once the qualified immunity defense is raised, the burden is on the plaintiff
to demonstrate that the officials are not entitled to qualified immunity.” Silberstein v. City of
Dayton, 440 F.3d 306, 311 (6th Cir. 2006).
The doctrine of qualified immunity shields government officials performing discretionary
actions from civil damages liability if their actions did not violate clearly established statutory or
constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555
U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (quotation marks and citation omitted).
“Qualified immunity provides police officers ‘breathing room to make reasonable but mistaken
judgments and protects all but the plainly incompetent or those who knowingly violate the law.’”
Mullins v. Cyranek, 805 F.3d 760, 765 (6th Cir. 2015) (quoting Stanton v. Sims, –––U.S.––––,
134 S. Ct. 3, 5, 187 L. Ed. 2d 341 (2013)). Qualified immunity will apply “‘if officers of
reasonable competence could disagree on the issue.’” Id. (quoting Malley v. Briggs, 475 U.S.
335, 341, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986)); see Ewolski v. City of Brunswick, 287 F.3d
492, 501 (6th Cir. 2002) (qualified immunity will apply unless it is obvious that no reasonably
competent official would have concluded that the action was lawful).
The Court employs a two-part test to determine if qualified immunity applies. First, the
facts taken in a light most favorable to the party alleging injury must show that the officer’s
conduct violated a constitutional right. Ewolski, 287 F.3d at 501; see Saucier v. Katz, 533 U.S.
194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). Second, if a constitutional right was
19

violated, the Court must determine “whether the violation involved a clearly established
constitutional right of which a reasonable person would have known.” Peete v. Metro. Gov’t of
Nashville & Davidson Cnty., 486 F.3d 217, 219 (6th Cir. 2007) (quotation marks and citation
omitted). If a plaintiff fails to establish either prong, she has failed to carry her burden, and
judgment is appropriate for the defendant. Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th
Cir. 2009). Since the failure of either prong is dispositive in favor of a defendant, the Court may
address either prong first.15 See Pearson, 555 U.S. at 236.
As a threshold matter, even construing the complaint’s factual allegations in plaintiff’s
favor, she has failed to show that Holland and Eubanks violated her constitutional rights.
Defendants argue that even if Holland and Eubanks violated plaintiff’s constitutional rights,
qualified immunity nevertheless applies because they were entitled to rely upon “the plethora” of
case law holding that threats alone are not a cognizable Fourth Amendment claim, and that
plaintiff does not have a privacy interest in financial documents held by a financial institution.
(Mot. at 81-82.)
In response, “Plaintiff agrees that Defendants were entitled to rely ‘upon the plethora of
case law’ relevant to their conduct. However, case law supports neither their arguments nor their
conduct.” (Opp’n at 112-13.) That statement, with no citation to authority, is plaintiff’s entire
argument that defendants’ conduct violated a constitutional right that was so clearly established
that a reasonable officer would have understood to refrain from that conduct. Plaintiff has failed
to carry her burden with respect to the second prong of the qualified immunity analysis.
On some occasions, it may be necessary to employ a third step, which is whether the plaintiff “‘offered sufficient
evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly
established constitutional rights.’” Thacker, 182 F. App’x at 468 (quoting Champion v. Outlook Nashville, Inc., 380
F.3d 893, 901 (6th Cir. 2004)).
15

20

The Court’s qualified immunity ruling does not address plaintiff’s federal conspiracy
claims because defendants did not move for judgment on those claims, and they are not now
before the Court.
I. Counts Eight16 and Nine17
Counts eight and nine allege a Monell claim against the Village. See Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Plaintiff claims that the
Village did not exercise reasonable care in hiring, training and supervising its law enforcement
officers, and “implicitly or explicitly adopted and implemented careless and reckless policies,
customs, or practices” that resulted in the violation of plaintiff’s constitutional rights.
A municipality may be subject to suit under § 1983 for the unconstitutional acts of its
employees. In the absence of a constitutional violation, however, the municipality is not—as a
matter of law—liable under § 1983. Monell, 436 U.S. at 691; Howard v. Calhoun Cnty., 148 F.
Supp. 2d 883, 891 (W.D. Mich. 2001) (citing Weeks v. Portage County Executive Offices, 235
F.3d 275, 279 (6th Cir. 2000) (the deprivation of a constitutional right is a threshold prerequisite
to municipal liability under § 1983); Napier v. Madison County, Kentucky, 238 F.3d 739, 743
(6th Cir. 2001) (same)).
Even if there is a constitutional violation by its employee, a municipality is not
automatically liable under § 1983. That is, a governmental entity is not liable under 42 U.S.C. §
1983 for an employee’s conduct on the basis of respondeat superior. Monell, 436 U.S. at 691.

16

Compl. ¶¶ 82-87.

17

Compl. ¶¶ 88-91.
21

Rather, plaintiff must show that the governmental entity itself is the wrongdoer. Collins v. City of
Harker Heights, 503 U.S. 115, 122, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). In order to do so,
plaintiff must show that the municipality’s policies, customs, and practices caused the
constitutional violation. Monell, 436 U.S. at 694; Embassy Realty Investments, Inc. v. City of
Cleveland, 976 F. Supp. 2d 931, 943 (N.D. Ohio 2013), aff’d, 572 F. App’x 339 (6th Cir. 2014)
(citing Miller v. Sanilac Cnty., 606 F.3d 240, 254-55 (6th Cir. 2010) (further citation omitted)).
With respect to plaintiff’s failure to train claim, “[t]he inadequacy of police training only
serves as a basis for § 1983 liability ‘where the failure to train amounts to deliberate indifference
to the rights of persons with whom the police come into contact.’” Slusher v. Carson, 540 F.3d
449, 457 (6th Cir. 2008) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 109 S. Ct.
1197, 103 L. Ed. 2d 1197 (1989) (emphasis added)). In order to establish deliberate indifference,
plaintiff “‘must show prior instances of unconstitutional conduct demonstrating that the County
has ignored a history of abuse and was clearly on notice that the training in this particular area
was deficient and likely to cause injury.’” Id. (quoting St. John v. Hickey, 411 F.3d 762, 776 (6th
Cir. 2005)). In the absence of a history of similar incidents, municipal liability under § 1983 for
failure to train fails. See id. (citing Miller v. Calhoun Cnty., 408 F.3d 803, 816 (6th Cir. 2005)).
Defendants maintain that they are entitled to judgment as a matter of law on counts eight
and nine because plaintiff has not established that Holland or Eubanks violated plaintiff’s
constitutional rights, thus, plaintiff’s Monell claim fails as a matter of law. The Court agrees.
Having concluded that defendants are entitled to judgment on the pleadings with respect to
plaintiff’s federal claims against Holland and Eubanks, there is no basis for § 1983 liability of
the Village. Monell, 436 U.S. at 691.
22

Even if the Court did find a constitutional violation, plaintiff’s complaint does not
identify the Village’s customs, practices, or policies that allegedly caused the violation.
Plaintiff’s allegation that Holland authorized Eubanks to “bluff” plaintiff regarding the vehicle,
or that Eubanks said that the NPD does not answer to the prosecutor and “does what it wants”
does not, on its face, allege a history of similar incidents necessary to establish municipal
liability under § 1983 for failure to train, Slusher v. Carson, 540 F.3d at 457, or the existence of a
pattern of unconstitutional conduct necessary to establish a custom, policy, or practice of the
Village upon which § 1983 liability may be based. D’Ambrosio v. Marino, 747 F.3d 378, 388
(6th Cir. 2014) (citing Doe v. Claiborne Cnty., Tenn. By & Through Claiborne Cnty. Bd. of
Educ., 103 F.3d 495, 508 (6th Cir. 1996)); see also Thomas v. City of Chattanooga, 398 F.3d
426, 432-33 (6th Cir. 2005) (“clear and persistent pattern” required to show municipal-wide
custom, policy, or practice causing unconstitutional conduct) (citing Doe, 103 F.3d at 508).
Plaintiff’s allegations regarding the Village’s liability revolve around a single situation
involving the vehicle. The Village may not be held liable under § 1983 based on a respondeat
superior theory. D’Ambrosio, 747 F.3d at 388-89 (citing Monell, 436 U.S. at 691).18
Thus, even if the Court had determined that Holland and Eubanks violated plaintiff’s
Fourth Amendment rights, the Village would nevertheless be entitled to judgment as a matter of
law on counts eight and nine because the complaint’s factual allegations do not support a claim
for municipal liability.

18

A single incident may be sufficient to establish municipal liability if Holland or Eubanks were municipal policy
makers, but there are no allegations in the complaint, or alleged facts from which to infer, that they are. See Miller,
408 F.3d at 816 (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S. Ct. 1292, 1298, 89 L. Ed. 2d 452
(1986) (municipality may be liable under § 1983 for a single decision by its properly constituted legislative body)).
23

V. PLAINTIFF’S STATE LAW CLAIMS
A. Immunity of the Village
Defendants argue that they are entitled to judgment as a matter of law with respect to
plaintiff’s state law claims against the Village because, as a political subdivision engaged in a
governmental function with respect to the events at issue in this lawsuit, the Village is immune
from suit pursuant to Ohio Rev. Code § 2744 and none of the exceptions to immunity apply.
(Mot. at 85-88.) Plaintiff concedes that the Village is immune from suit under Ohio Rev. Code §
2744, and is not liable for the state law claims raised in the complaint. (Opp’n at 103.)
Plaintiff’s state law claims against the Village are dismissed.
B. Immunity of Holland and Eubanks
Holland and Eubanks contend that, like the Village, they are entitled to immunity under
Ohio Rev. Code § 2744.03(A)(6). “It is established law that a ‘police officer . . . cannot be held
personally liable for acts committed while carrying out his or her official duties unless one of the
exceptions to immunity is established.’” Szefcyk v. Kucirek, No. 15CA010742, 2016 WL
228601, at *2 (Ohio Ct. App. Jan. 19, 2016) (quoting Cook v. Cincinnati, 658 N.E.2d 814, 82021 (Ohio Ct. App. 1995)). “We therefore begin with a presumption of immunity.” Cook, 659
N.E.2d at 821.
Ohio Rev. Code § 2744.03(A)(6) provides:
(A) In a civil action brought against a political subdivision or an employee of a
political subdivision to recover damages for injury, death, or loss to person or
property allegedly caused by any act or omission in connection with a
governmental or proprietary function, the following defenses or immunities may
be asserted to establish nonliability:
24

***
(6) In addition to any immunity or defense referred to in division (A)(7) of this
section and in circumstances not covered by that division or sections 3314.07 and
3746.24 of the Revised Code, the employee is immune from liability unless one
of the following applies:
(a) The employee’s acts or omissions were manifestly outside the scope of
the employee’s employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious purpose, in bad
faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of
the Revised Code. Civil liability shall not be construed to exist under
another section of the Revised Code merely because that section
imposes a responsibility or mandatory duty upon an employee, because
that section provides for a criminal penalty, because of a general
authorization in that section that an employee may sue and be sued, or
because the section uses the term “shall” in a provision pertaining to an
employee.
Defendants argue that none of the exceptions apply, thus, Holland and Eubanks are
immune from suit with respect to plaintiff’s state law claims. Plaintiff concedes that Holland and
Eubanks were acting within the scope of their employment, but argues that plaintiff’s factual
allegations, including intentional false threats of criminal charges, arrest, and incarceration (see
Compl. ¶¶ 24-28), demonstrate that Holland and Eubanks acted with a malicious purpose, and
therefore are not entitled to immunity. (Opp’n at 104.)
The Ohio Supreme Court defines “wanton” conduct as “an intentional deviation from a
clear duty or from a definite rule of conduct, a deliberate purpose not to discharge some duty
necessary to safety, or purposefully doing wrongful acts with knowledge or appreciation of the
likelihood of resulting injury[,]” and “reckless” conduct as “the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable under the
25

circumstances and is substantially greater than negligent conduct.” Anderson v. City of
Massillon, 983 N.E.2d 266, 273 (Ohio 2012) (internal citations omitted).
“Malicious purpose” is the ‘willful and intentional design to do injury, or the intention or
desire to harm another, usually seriously, through . . . unlawful or unjustified’ conduct.” Simon v.
Mitchell, No. OT–16–002, 2017 WL 730507 (Ohio Ct. App. Feb. 24, 2017) (quoting Schoenfield
v. Navarre, 843 N.E.2d 234, 239 (Ohio Ct. App. 2005) (further citation omitted)). “Bad faith”
connotes 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.’” Id.
“As a general matter, whether an employee is entitled to R.C. 2744.03(A)(6) immunity is
ordinarily a question of law.” Pierce v. Woyma, No. 97545, 2012 WL 3758631, at *3 (Ohio Ct.
App. Aug. 30, 2012) (citing Conley v. Shearer, 595 N.E.2d 862, 869 (Ohio 1992)). “However,
whether the employee acted with malicious purpose, in bad faith, or in a wanton or reckless
manner generally are questions of fact.” Id. Judgment in favor of defendants based upon
immunity under § 2744.03(A)(6) is only appropriate if, construing the facts in a light most
favorable to the plaintiff, it is clear that the conduct at issue fails to rise to the level of conduct
that could be construed as malicious, in bad faith, or wanton and reckless. See Long v. Hanging
Rock, No. 09CA30, 2011 WL 4584930, at *5 (Ohio Ct. App. Sep. 28, 2011) (citing Theobald v.
Univ. of Cincinnati, 857 N.E.2d 573, 577 (Ohio 2006)).

26

Construing plaintiff’s factual allegations concerning the 2016 events in plaintiff’s favor,
as the Court must at this stage of the ligation, the Court cannot determine as a matter of law that
Holland and Eubanks are entitled to immunity under § 2744.03(A)(6).19
C. Count Two—Abuse of process
Defendants seek judgment on the pleadings with respect to plaintiff’s state law claim for
abuse of process. (Mot. at 77, 92.)
Under Ohio law, “the three elements of the tort of abuse of process are: (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.”
Moore, 612 F. App’x at 823-24 (quoting Yaklevich v. Kemp, Schaeffer & Rowe Co., 626 N.E.2d
115, 118 (Ohio 1994)).
Defendant argues that plaintiff’s state law claim fails because no legal proceedings were
ever set in motion against plaintiff, and an abuse of process claim arises from actions taken
during litigation after a complaint is filed. (Mot. at 77 (citing Corsaro & Assocs. Co., L.P.A. v.
Weston Hurd, L.L.P., No. 101534, 2015 WL 501260, at *3 (Ohio Ct. App. Feb. 5, 2015)
(“Because an abuse of process claim arises from perverted actions taken during the litigation
sometime after the complaint was filed, the cause of action generally does not accrue on the day
the complaint was filed. Rather, an abuse of process claim accrues on the date of the allegedly
tortious conduct.”)).) In response, plaintiff states that “Defendants have accurately articulated the
legal standards associated with an abuse of process claim in Ohio, as well as the facts set forth in
The Court’s qualified immunity ruling with respect to Holland and Eubanks does not pertain to count ten of the
complaint or plaintiff’s state law conspiracy claims because defendants did not move for judgment on those claims
and they are not before the Court.
19

27

Plaintiff’s Complaint. Accordingly, Plaintiff would merely defer to the Court relative to the state
claim presented in Count Two.” (Opp’n at 107.)
There are no allegations in the complaint that any legal proceedings were instituted
against plaintiff. In order for plaintiff to avoid an adverse ruling on a motion for judgment on the
pleadings, the complaint must set forth allegations sufficient to make out the elements of a right
to relief. Accordingly, as effectively conceded by plaintiff, defendants are entitled to judgment
on her state law claim for abuse of process.
D. Count Three—Malicious prosecution
Like plaintiff’s federal claim for malicious prosecution, defendants argue that the state
law claim also fails. (Mot. at 85, 92.) In order to prevail on a claim for malicious prosecution
under Ohio law, plaintiff must prove “(1) malice in instituting or continuing the prosecution, (2)
lack of probable cause, and (3) termination of the prosecution in favor of the [criminal]
defendant.” Trussell v. Gen. Motors Corp., 559 N.E.2d 732, 735 (Ohio 1990). Because plaintiff
was never prosecuted, defendants argue that plaintiff’s state law claim for malicious prosecution
under state law must fail.
In response, plaintiff states that “[d]efendants have accurately articulated the legal
standards associated with both § 1983 civil claims and Ohio claims for malicious prosecution, as
well as the facts set forth in [p]laintiff’s Complaint. Accordingly, [p]laintiff would merely defer
to the Court relative to the state and federal claims presented in Count Three.” (Opp’n at 107.)
Because plaintiff’s complaint does not make out the elements of a malicious prosecution
claim, which is effectively conceded by plaintiff, defendants are entitled to judgment on this
claim.
28

E. Count Four—False arrest
In Ohio, the elements of false imprisonment and false arrest are the same; the only
difference being that false arrest involves a law enforcement officer, while false imprisonment
involves a private citizen. Rogers v. Barbera, 164 N.E.2d 162, 164 (Ohio 1960) (“[F]alse arrest
and false imprisonment as causes of action are indistinguishable. The only distinction lies in the
manner in which they arise.”).
False imprisonment/false arrest is “to confine one intentionally without lawful
privilege and against his consent within a limited area for any appreciable
time, however short.” Feliciano v. Kreiger, 50 Ohio St. 2d 69, 71, 362 N.E.2d
646 (1977); see also Thacker v. City of Columbus, 328 F.3d 244, 261 (6th Cir.
2003) (quoting Faulkner v. Faulkner, 2000 WL 5910, *1 (Ohio Ct. App., Jan
7, 2000)) (“The requisite elements for false arrest are (1) a detention of the
person, and (2) an unlawful detention.”).
Kaylor v. Rankin, 356 F. Supp. 2d 839, 854–55 (N.D. Ohio 2005); see also, Saucedo-Carrillo v.
United States, 983 F. Supp. 2d 917, 922-23 (N.D. Ohio 2013) (the elements of the two torts are
nearly identical, requiring: (1) an intentional detention (2) taking place in a limited area (3) for
any appreciable time, however short (4) without a lawful privilege and (5) without the detainee’s
consent), aff’d, 635 F. App’x 197 (6th Cir. 2015).
Because plaintiff asserts count 4 against NPD officers, not private citizens, the state law
claim must be for false arrest, rather than false imprisonment. There are no factual allegations in
the complaint to support plaintiff’s claim of false arrest against Holland and Eubanks—indeed,
plaintiff alleges that she was stopped for her keys by an unknown NPD officer. Plaintiff does not
allege that she was detained by Holland or Eubanks. Accordingly, plaintiff’s state law claim for
false arrest against Holland and Eubanks fails, and defendants are entitled to judgment.

29

F. Count Five—Assault
In Ohio, the tort of assault is defined as the willful threat or attempt to harm or touch
another offensively, which threat or attempt reasonably places the other in fear of such contact.
The threat or attempt must be coupled with a definitive act by one who has the apparent ability to
do the harm or to commit the offensive touching. An essential element of the tort of assault is
that the actor knew with substantial certainty that his or her act would bring about harmful or
offensive contact. Smith v. John Deere Co., 614 N.E.2d 1148, 1154 (Ohio Ct. App. 1993)
(citation omitted); Gerber v. Veltri, 203 F. Supp. 3d 846 (N.D. Ohio 2016) (quoting Smith, 614
N.E.2d at 1154).
Defendants argue that they are entitled to judgment on this claim because plaintiff has not
alleged any facts to support a finding that she reasonably believed she would be arrested or
prosecuted by Holland or Eubanks. (Mot. at 92-93.) In opposition, plaintiff acknowledges that
defendants accurately recite the elements of an Ohio claim for assault, but then quotes a case
regarding the elements of a claim for battery. (Opp’n at 108-09.) Plaintiff argues that she has set
forth sufficient facts that she was repeatedly threatened and forced to surrender her property, and
that she was unlawfully stopped to surrender her keys, all of which place her in fear of unlawful
arrest. But these allegations, which relate to conduct by others in 2015, do not relate to Holland
or Eubanks. (See Compl. ¶¶ 24-27.)
Holland made multiple telephone calls to plaintiff in February 2016, allegedly threatening
her with arrest and prosecution in connection with the vehicle. (Id. ¶ 39.) When plaintiff’s
attorney contacted Holland about these telephone calls, however, Holland informed him that
30

neither Holland nor Eubanks intended to arrest plaintiff. (Id. ¶ 43 (Holland admitted there was no
warrant and he had approved Eubanks to “bluff” plaintiff); id. ¶ 45 (Holland stated he would not
allow Eubanks to press charges).) At the same time, plaintiff’s attorney contacted the prosecutor,
who “again indicated” that a criminal case would not be pursued. (Id. ¶ 41; see also id. ¶ 30 and
Doc. No. 1-3.) Notwithstanding the alleged threats made by Holland and Eubanks, plaintiff
and/or her attorney, upon inquiry, were informed that she would not be arrested or prosecuted in
connection with the vehicle. Thus, plaintiff’s allegations do not support a finding that plaintiff
reasonably believed Holland’s and Eubanks’ threats of arrest and prosecution.
In addition, Holland and Eubanks did not have the apparent ability to commit the
offensive touching. Plaintiff’s only allegations regarding her contact with Holland and Eubanks
are that Holland made multiple telephone calls to her, and that her attorney had conversations
with both Holland and Eubanks. (Id. ¶¶ 39-45.) Plaintiff does not allege any face-to-face contact
with either Holland or Eubanks. Her allegations regarding telephone conversations do not
support a finding that Holland or Eubanks had the apparent ability to commit the offensive
touching by arresting her, or that plaintiff reasonably believed they did.
Thus, the allegations in plaintiff’s complaint do not establish the elements of her state law
claim for assault, and defendants are entitled to judgment.

31

G. Count Six—Invasion of privacy
Plaintiff alleges in count six that Holland invaded her privacy under Ohio law by
obtaining her financial records from Wells Fargo.20 The parties agree that in order to establish
this claim plaintiff must show that the area Holland intruded upon was private, the intrusion was
unwarranted, and that the intrusion was offensive or objectionable to the reasonable person.
(Mot. at 93; Opp’n at 110.) Kohler v. City of Wapakoneta, 381 F. Supp. 2d 692, 703 (N.D. Ohio
2005) (citing Contadino v. Tilow, 589 N.E.2d 48, 53 (Ohio Ct. App. 1990)). “The invasion of the
right of privacy may be defined ... as the wrongful intrusion into one’s private activities in such
manner as to outrage or to cause mental suffering, shame or humiliation to a person of ordinary
sensibilities.” Id. (quoting Housh v. Peth, 133 N.E.2d 340, 343 (Ohio 1956)).
In Ohio, a totality of the circumstances analysis is the test for determining whether an
individual has a reasonable expectation of privacy. Sollenberger, 173 F. Supp. 3d at 634 (citing
Rakas v. Illinois, 439 U.S. 128, 143–44, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); Lazette v.
Kulmatycki, 949 F.Supp.2d 748, 761 (N.D. Ohio 2013)). “The intrusion ‘must be of such a
character as would shock the ordinary person to the point of emotional distress.’” Sollenberger,
173 F. Supp. 3d at 635 (quoting Stonum v. U.S. Airways, Inc., 83 F. Supp. 2d 894, 905 (S.D.
Ohio 1999) (quoting Haller v. Phillips, 591 N.E.2d 305, 307 (1990) (stating it is the same
standard as applied to intentional infliction of emotional distress claims))). Examples of intrusion

20

In Ohio, the tort of invasion of privacy encompasses four causes of action: (1) intrusion into plaintiff‘s seclusion,
solitude, or private affairs; (2) public disclosure of embarrassing private facts; (3) publicity that places plaintiff in a
false light; and (4) appropriation of plaintiff’s name or likeness. Sollenberger v. Sollenberger, 173 F. Supp. 3d 608,
634 (S.D. Ohio 2016) (citation omitted).

32

on seclusion include watching or photographing a person through the windows of his home or
wiretapping his telephone. See Mowry v. Anthony Wayne Local Sch. Dist. Bd. of Educ., No. CI
00-3628, 2002 WL 33031490, at *6 (Ohio Com. Pl. Aug. 15, 2002) (citing Killilea v. Sears,
Roebuck & Co., 499 N.E.2d 1291, 1294 (Ohio Ct. App. 1985)).
Plaintiff’s factual allegations establish that there was a dispute between plaintiff, Barnes,
and Addy regarding the vehicle, which included issues of whether the vehicle had been stolen by
plaintiff. Resolution of those issues required investigation, and were investigated by the
prosecutor, including seeking records from Wells Fargo concerning the vehicle. Indeed, plaintiff
herself acknowledges that legal action may be required to resolve the issues. (Compl. ¶ 37
(“Plaintiff remarked that she would keep paying the costs [for the vehicle] until the matter was
decided in court.”).) Plaintiff has alleged no facts that, construed in her favor, would suggest that
obtaining information from Wells Fargo regarding the vehicle was unwarranted. Indeed, given
the nature of the dispute over the vehicle described in the complaint, the request to Wells Fargo
for records in connection with resolution of that dispute is not of such a character that the
ordinary person would be shocked to the point of emotional distress. Sollenberger, 173 F. Supp.
3d at 634. Finally, plaintiff had no reasonable expectation of privacy in the records that she
provided to Wells Fargo in connection with the vehicle loan. See Miller, 425 U.S. at 440.
Holland is entitled to judgment on plaintiff’s state law claim for invasion of privacy.
H. Count Seven—Trespass to chattels; Theft
Plaintiff alleges in count seven that Holland, Eubanks, Barnes, and Addy deprived her of
the vehicle and took the vehicle into custody in violation Ohio Rev. Code § 2913.02(A), and are
guilty of theft and trespass to chattels.
33

“A trespass to chattel occurs when one intentionally dispossesses another of their
personal property.” Conley v. Caudill, No. 02CA697, 2003 WL 21278885, at * 2 (Ohio Ct. App.
May 30, 2003). Under Ohio law, theft occurs when,
[W]ith purpose to deprive the owner of property or services, shall knowingly
obtain or exert control over either the property or services in any of the following
ways:
(1) Without the consent of the owner or person authorized to give consent;
(2) Beyond the scope of the express or implied consent of the owner or
person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
Ohio Rev. Code § 2913.02(A).
As used in § 2913.02(A), “deprive” means to:
(1) Withhold property of another permanently, or for a period that appropriates a
substantial portion of its value or use, or with purpose to restore it only upon
payment of a reward or other consideration;
(2) Dispose of property so as to make it unlikely that the owner will recover it;
(3) Accept, use, or appropriate money, property, or services, with purpose not to
give proper consideration in return for the money, property, or services, and
without reasonable justification or excuse for not giving proper consideration.
Ohio Rev. Code § 2913.01(C).
The only factual allegations in the complaint regarding Holland and Eubanks with respect
to the vehicle are that they engaged in telephone conversations with plaintiff and her attorney in
which they allegedly threatened plaintiff with prosecution regarding the vehicle. According to
the complaint, the vehicle was in the possession of plaintiff at the time of the telephone
conversations. (See Compl. ¶ 37.) Moreover, plaintiff does not allege that the threats by Holland
and Eubanks deprived or dispossessed her of the vehicle, only that their threats allegedly caused
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her to “cease use of the vehicle.” (Id. ¶ 78.) Plaintiff does not cite a single case for the
proposition that plaintiff’s decision to stop using a vehicle in her possession based on alleged
threats by Holland and Eubanks constitutes theft or trespass to chattels under Ohio law.
Defendants are entitled to judgment on count seven with respect to plaintiff’s state law
claim.
VI. CONCLUSION
For all of the foregoing reasons, as well as the reasons set forth by the Newcomerstown
defendants in their memorandum and reply in support of their motion, defendant
Newcomerstown Police Department is dismissed from this action as to all claims. Defendant
Village of Newcomerstown is dismissed from this action with respect to plaintiff’s state law
claims.
Additionally, the Newcomerstown defendants’ motion for partial judgment on the
pleadings is granted on plaintiff’s federal and state law claims with respect to counts 1, 2, 3, 4, 5,
6, 7, 8, and 9, except as to plaintiff’s conspiracy claims.
In accordance with the Court’s instructions, plaintiff is ordered to show cause why
defendants Addy and Barnes should not be dismissed from this action.
IT IS SO ORDERED.

Dated: March 31, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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