Kirk v. Clinton County Board of Commissioners et al
Filing
50
OPINION AND ORDER denying 17 Plaintiff's Motion for Partial Summary Judgment, granting 36 Defendants' Motion for Summary Judgment. Signed by Judge S Arthur Spiegel on 10/26/2011. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTOPHER KIRK,
Plaintiff,
v.
CLINTON COUNTY BOARD OF
COMMISSIONERS, et al.,
Defendants.
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NO. 1:10-CV-00351
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for
Partial Summary Judgment Regarding Liability (doc. 17), Defendants’
Response in Opposition (doc. 32), and Plaintiff’s Reply (doc. 38).
Also before the Court is Defendants’ Motion for Summary Judgment
(doc. 36), Plaintiff’s Response (doc. 42), and Defendants’ Reply
(doc. 47).
For the reasons indicated herein, the Court DENIES
Plaintiff’s motion and GRANTS Defendants’ motion.
I.
Background
Plaintiff Christopher Kirk (“Kirk”), started working for
Defendant Clinton County Sheriff’s Office (“CCSO”), as a Sheriff’s
Deputy on March 6, 2000 (doc. 1).
He was certified as a K-9 Patrol
and worked in such capacity for just over nine years, when on May
27, 2009 his employment was terminated due to a criminal complaint
lodged against him for alleged domestic violence against his thenwife, Misty Kirk (Id.).
Specifically, on May 12, 2009, Misty Kirk complained to
Defendant Detective Brian Edwards that Kirk had assaulted her the
previous day, grabbing her by the arms and throwing her away from
her truck when she attempted to confront him with allegations of
marital infidelity outside the home of the alleged mistress, Amy
McCleese (doc. 36).
Misty Kirk reported to Edwards that she
suffered bruises, scratches, and broken fingernails (Id.). Edwards
documented Misty Kirk’s injuries with photos, and interviewed
witnesses
who
confirmed
that
they
had
seen
Kirk
many
times
throughout the year at the home of the alleged mistress (Id.).
On
May 13, 2009, Misty Kirk called Defendant Edwards and indicated she
wanted to file domestic violence charges against Kirk (Id.).
Edwards gave her a blank affidavit which she completed, in which
she described that during the May 11 altercation Kirk had been
“enraged,” “started screaming and ran towards [her],” that she was
afraid and tried to leave when Kirk, “grabbed me around the waist
and pulled me back and then threw me back.
to stop” (doc. 32).
I was screaming for him
Misty Kirk’s affidavit further indicated that
Kirk had grabbed her by the left wrist, “causing me to yell at him
to let me go” (Id.).
Once Kirk released her, she further stated
she found several of her fingernails were broken and she “felt pain
on my left side of my back” (Id.).
Defendant Edwards filed Misty Kirk’s Complaint in the
filing box at the Sheriff’s Office on May 13, before performing any
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further investigation (Id.).
At such moment, Defendant Edwards
made the decision to arrest Kirk for domestic violence (Id.).
Edwards then went to Plaintiff’s house and escorted him
to
the
Sheriff’s
Office
for
questioning
(Id.).
Prior
to
questioning, Edwards informed Kirk that Edwards was investigating
an incident between Kirk and his wife (Id.).
Edwards further
advised Plaintiff that his statements could not be used in a
subsequent
criminal
prosecution,
but
failure
to
answer
all
questions truthfully could result in a termination of employment
(Id.).
Plaintiff
completed
a
statement
concerning
his
altercation with Misty Kirk, that provided a different version of
the events, in which Misty Kirk essentially attacked him and he
acted in self-defense (doc. 17).1
In his statement, Plaintiff
admitted that he had grabbed his wife’s arms to protect himself,
and that he pushed her so that he could get away (Id.).
According to Plaintiff, Edwards told Plaintiff that
Plaintiff was lying, falsely indicated that there were witnesses
against him, and informed him that a criminal complaint had been
1
According to Plaintiff, the allegations against him by
Misty Kirk that he had assaulted her were completely false, and
that in fact, Misty Kirk had attacked him, put him in a chocking
headlock, and caused him to believe he was in imminent danger
(doc. 17). According to Plaintiff, Misty Kirk later admitted to
him that she filed the domestic violence charge because she was
angry that Plaintiff wanted a divorce, and she thought such
charge would give her an upper hand in the divorce (Id.).
-3-
filed (Id.). Edwards then placed Plaintiff under arrest (doc. 32).
Edwards indicated he kept his notes and interview with
Kirk separate from any of his files related to the criminal
investigation (Id.). However, Edwards later participated in Kirk’s
bond hearing, seeking a higher bond based on his belief that Kirk
was attempting to circumvent the civil protection order entered
against him, by using a relative to contact Misty Kirk (Id.).
Plaintiff was released on bond, and on May 20, 2009,
received
a
pre-disciplinary
conference
(doc.
32).
At
such
conference he was charged with 1) having assaulted Misty Kirk, 2)
falsifying information for not disclosing his involvement with
McCleese, and 3) being unable to carry a firearm because of the
weapons disability required in the civil protection order (Id.).
After a disciplary hearing, Defendant Sheriff Fizer was found to be
justified in continuing the disciplinary process (Id.). On May 27,
2009, Defendant Sheriff Fizer terminated Plaintiff’s employment for
each of the above reasons (Id.).
The prosecution in the domestic violence case, through a
public
records
Defendants,
Edwards.
request,
which
sought
included
his
Kirk’s
employment
statements
made
to
file
from
Defendant
However, the record shows that the prosecution had
already obtained such statements from Kirk’s counsel on June 15,
2009, who submitted them “under seal,” and warned that such
statements could not be used at trial, although they were necessary
-4-
for pretrial purposes (doc. 32).
On
dismissed
the
September
criminal
2,
2009,
case
the
against
trial
Kirk2
court
(Id.).
ultimately
Kirk
was
reinstated to a dispatch position3, with back-pay, on January 7,
2010 (doc. 1).
On May 28, 2010, Plaintiff filed the Complaint in this
matter, seeking redress for deprivation of civil rights, breach of
contract, false arrest, malicious prosecution, abuse of process,
defamation, intentional infliction of emotional distress, and for
declaratory judgment (doc. 1). He sues the Clinton County Board of
Commissioners (“the Board”), Sheriff Ralph Fizer, Jr. (“Fizer”),
and Detective Edwards, seeking compensatory damages, punitive
damages as appropriate, and attorney’s fees (Id.).4
2
The trial court found that “the internal investigation and
criminal investigation. . . were merged together in such an
intricate way that it is now impossible to determine which parts
were used for the internal investigation and which parts were
used to form the decision to prosecute criminally” (doc. 1). The
trial court found that such merger of investigations constituted
a violation of Kirk’s constitutional rights under Garrity v. New
Jersey, 385 U.S. 493, 500 (1967), in which the Supreme Court held
that the Constitutional protection of the Fourteenth Amendment
against coerced statements prohibits the use in subsequent
criminal proceedings of statements obtained under threat of
removal from office.
3
Kirk was not reinstated to his K-9 position because such
program had been cut (doc. 32).
4
In his briefing, Plaintiff has abandoned his claim for
declaratory judgment, as moot; his equal protection claim; and
his malicious prosecution and abuse of process claims as to the
Board and Fizer. The Court finds Defendants merit summary
judgment as to these claims.
-5-
On February 21, 2001, Plaintiff filed the instant motion
for partial summary judgment regarding liability with regards to
his Section 1983 claims that Defendants violated his due process
and substantive due process rights by using his compelled statement
against him in a criminal proceeding (doc. 17).
Defendants
responded in opposition (doc. 32), and further filed their own
cross motion, claiming there are no genuine issues of fact to
prevent judgment as a matter of law on all of Plaintiff’s claims,
in their favor (doc. 36). Plaintiff responded (doc. 42), such that
this matter is ripe for the Court’s consideration.
II.
Applicable Legal Standard
Although a grant of summary judgment is not a substitute
for trial, it is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.”
Fed. R. Civ. P. 56; see also, e.g.,
Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464 (1962);
LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.
1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction and
Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir. 1992) (per
curiam).
In reviewing the instant motion, “this Court must
determine whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that
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one party must prevail as a matter of law.”
Patton v. Bearden, 8
F.3d 343, 346 (6th Cir. 1993), quoting in part Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251-252 (1986) (internal quotation marks
omitted).
The process of moving for and evaluating a motion for
summary judgment and the respective burdens it imposes upon the
movant and the non-movant are well settled.
First, “a party
seeking summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact [.]”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also
LaPointe, 8 F.3d at 378; Guarino v. Brookfield Township Trustees,
980 F.2d 399, 405 (6th Cir. 1992); Street v. J.C. Bradford & Co.,
886 F.2d 1472, 1479 (6th Cir. 1989).
The movant may do so by
merely identifying that the non-moving party lacks evidence to
support an essential element of its case. See Barnhart v. Pickrel,
Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir.
1993).
Faced
with
such
a
motion,
the
non-movant,
after
completion of sufficient discovery, must submit evidence in support
of any material element of a claim or defense at issue in the
motion on which it would bear the burden of proof at trial, even if
the moving party has not submitted evidence to negate the existence
-7-
of that material fact.
See Celotex, 477 U.S. at 317; Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986).
As the “requirement [of
the Rule] is that there be no genuine issue of material fact,” an
“alleged factual dispute between the parties” as to some ancillary
matter “will not defeat an otherwise properly supported motion for
summary judgment.” Anderson, 477 U.S. at 247-248 (emphasis added);
see generally Booker v. Brown & Williamson Tobacco Co., Inc., 879
F.2d
1304,
1310
(6th
Cir.
1989).
Furthermore,
“[t]he
mere
existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-movant].”
Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781,
784 (6th Cir. 1994).
Accordingly, the non-movant must present
“significant probative evidence” demonstrating that “there is [more
than] some metaphysical doubt as to the material facts” to survive
summary judgment and proceed to trial on the merits.
Moore v.
Philip Morris Cos., Inc., 8 F.3d 335, 339-340 (6th Cir. 1993); see
also Celotex, 477 U.S. at 324; Guarino, 980 F.2d at 405.
Although the non-movant need not cite specific page
numbers of the record in support of its claims or defenses, “the
designated portions of the record must be presented with enough
specificity that the district court can readily identify the facts
upon which the non-moving party relies.” Guarino, 980 F.2d at 405,
quoting Inter-Royal Corp. v. Sponseller, 889 F.2d 108, 111 (6th
-8-
Cir. 1989) (internal quotation marks omitted).
In contrast, mere
conclusory allegations are patently insufficient to defeat a motion
for summary judgment.
See McDonald v. Union Camp Corp., 898 F.2d
1155, 1162 (6th Cir. 1990).
evidence,
facts,
and
The Court must view all submitted
reasonable
inferences
in
a
light
most
favorable to the non-moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Adickes v. S.H.
Kress & Co., 398 U.S. 144 (1970); United States v. Diebold, Inc.,
369 U.S. 654 (1962). Furthermore, the district court may not weigh
evidence or assess the credibility of witnesses in deciding the
motion.
See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir. 1994).
Ultimately, the movant bears the burden of demonstrating
that no material facts are in dispute. See Matsushita, 475 U.S. at
587.
The fact that the non-moving party fails to respond to the
motion does not lessen the burden on either the moving party or the
Court to demonstrate that summary judgment is appropriate.
See
Guarino, 980 F.2d at 410; Carver v. Bunch, 946 F.2d 451, 454-455
(6th Cir. 1991).
III.
A.
Analysis
Plaintiff’s Motion and Defendants’ Response
Plaintiff’s motion is essentially premised on the theory
that the federal court is collaterally estopped by the state
court’s determination that his right against self-incrimination was
violated (doc. 17).
However in his Reply, he concedes that the
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dismissal of his criminal indictment in the state court does not
have
issue
preclusive
effect
in
this
matter
(doc.
38)5.
Nonetheless, Plaintiff argues the state court’s decision should be
highly persuasive because the same factual record that existed
before the state court is before this court (Id.).
Plaintiff
further argues that he should prevail on his due process claim for
the simple fact that Edwards improperly inquired into the nature of
his private relationship with Amy McCleese (doc. 38).
Defendants argue that Plaintiff has no evidence that they
violated his right against self-incrimation for several reasons
(doc. 32). First, they argue Plaintiff waived the right to prevent
the prosecution from seeing his statements when Plaintiff’s lawyer
turned over such statements(Id.).
Second, they argue there is no
evidence that the prosecution used any of the statements at trial
(Id.).
Third, they argue that Defendants have qualified immunity
because of their reasonable efforts to follow Ohio’s public records
law in turning over Plaintiff’s statements to the prosecution
(Id.).
As for Defendant Edwards specifically, Defendants argue
5
Defendants correctly argued in their Response that because
there is no privity between parties, principles of res judicata
and issue preclusion do not apply here (doc. 32, citing O’Nesti
v. DeBartolo Realty Corp., 113 Ohio St.3d 59 (Ohio 2007). In any
event, Defendants argue, as the burdens in the underlying
criminal case and the instant civil case are different, and the
burden has shifted to Plaintiff in this case, issue preclusion is
inapplicable.
-10-
he used nothing learned through the administrative investigation to
assist with Plaintiff’s criminal prosecution, but that he only was
involved to seek higher bond for Plaintiff based on information
obtained from other sources (Id.). Even if Edwards’ involvement in
the
proceedings
violated
Plaintiff’s
constitutional
rights,
Defendants argue his actions were reasonable such that he should be
entitled to qualified immunity (Id.).
As for Plaintiff’s due process claims, Defendants contend
the record shows he received a pre-termination hearing which
provided the requisite notice of the charges against him, an
explanation of the evidence, and an opportunity for him to provide
his side of the story (Id. citing Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538-40 (1985)).
Moreover, Defendants
contend Plaintiff cannot plead or prove he received an inadeqate
post-termination hearing, because he waived such a hearing when he
dropped his appeal of the termination after reaching a settlement
with Defendants reinstating his employment (Id. citing Nunn v.
Lynch, 113 Fed.Appx. 55, 62 (6th Cir. 2004)).
Finally Defendants argue Plaintiff is not entitled to
summary judgment on his abuse of process claim, first, because no
such
claim
exists
in
federal
law
(Id.
citing
Timberlake, 412 F.3d 669, 676 (6th Cir. 2005)).
Voyticky
v.
Should the Court
accept a state law abuse of process claim, Defendants argue such a
claim
would
also
fail,
because
-11-
Plaintiff
has
pleaded
that
Defendants acted without probable cause (Id.).
The first prong of
an abuse of process claim requires that a legal proceeding has been
set
in
motion
properly
and
with
probable
cause
(Id.
citing
Yaklevich v. Kemp, Schaeffer & Rowe, 68 Ohio St.3d 294, 297 (Ohio
1994).
the
Moreover, Defendants contend there is no evidence to prove
other
elements
of
an
abuse
of
process
claim,
that
the
proceedings against him were perverted in an attempt to accomplish
some ulterior motive, or that he suffered direct damage from a
wrongful use of process by the Defendants (Id.).
In Defendants’
view, Misty Kirk provided probable cause for the initiation of the
proceedings against Plaintiff, so he cannot prove as a matter of
law that they in any way directly caused his damages (Id.).
Having reviewed this matter, this Court finds Defendants’
positions correct in response to Plaintiff’s motion.
Although the
Court has reviewed the finding of the state court that Defendant
Edward’s involvement in both the administrative investigation and
the criminal matter brought against Kirk was troubling, the Court
is in no way bound by such conclusion.
The Court finds correct
Defendant’s position that there is no evidence that the prosecution
even
ever
Plaintiff’s
used
Kirk’s
statements
own
counsel
turned
in
such
the
criminal
information
over
trial.
to
the
prosecution before the Defendants ever did, while making it clear
to
the
prosecution
materials.
that
it
was
prohibited
from
using
such
Finally, a review of the statement itself reveals in
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context that the statement is not really incriminating, but rather
exonerating: Kirk claimed he was attacked and acted in selfdefense. The information Plaintiff contends is incriminating, that
he engaged in an altercation and grabbed Misty Kirk, was already
available from other sources, namely, the affidavit of Misty Kirk.
Such evidence would have been admissible at trial.
Under these
circumstances, the Court does not see an actionable material
violation of Kirk’s right against self-incrimination.
The Court further sees no violation of Plaintiff’s due
process rights as the record shows he received the required pretermination hearing. Defendant Edward’s inquiry into the nature of
Plaintiff’s
relationship
with
McCleese
was
relevant
to
the
investigation in light of the context of Misty Kirk’s allegations.
Finally, no abuse of process claim lies here as Plaintiff has
pleaded that Defendant had no probable cause of his arrest.
Such
allegation is fatal to his abuse of process claim.
Accordingly, the Court DENIES Plaintiff’s motion for
summary judgment as to liability.
B.
Defendants’ Motion and Plaintiff’s Response
The core theory of Defendants is that Kirk’s arrest was
supported by probable cause and he received due process such that
the claims against them fail (docs. 36, 47).
As there is no
evidence of a policy or failure to train, they contend there is
further no claim against Sheriff Fizer or the Board under Monell
-13-
(Id.).
A police officer is permitted to make an arrest when
there is probable cause that an individual committed a crime.
“A
finding of probable cause does not require an actual showing of
criminal activity, but rather ‘requires’ only a probability or
substantial chance of criminal activity.” United States v. Harris,
255 F.3d 288, at 292 (6th Cir. 2001).
Probable cause is defined by
asking “whether at that moment the facts and circumstances within
[the
officers’]
knowledge
and
of
which
they
had
reasonably
trustworthy information were sufficient to warrant a prudent man in
believing that the [defendant] had committed or was committing an
offense.”
Beck v. Ohio, 379 U.S. 89, 91 (1964).
Although Plaintiff contends there is plenty of evidence
in the record that should have thrown into question a finding of
probable cause, Defendants correctly argue that what matters is
what evidence was before Edwards before he made the arrest.
There
is no factual dispute as to the evidence Edwards had at such time.
Edwards met twice with Misty Kirk who described her altercation
with Kirk as an “assault.”
Edwards documented visible injuries.
Edwards obtained information that at least corroborated in part
Misty Kirk’s story.
Edwards obtained a sworn statement from Misty
Kirk indicating that Kirk had grabbed her and pushed her.
The
Court agrees that a prudent officer hearing the allegations of
Misty Kirk and assessing her injuries could conclude she was the
-14-
victim of domestic violence.
As such, Edwards was justified in
arresting Plaintiff. The Court finds that no reasonable jury could
conclude otherwise.
Edwards had probable cause as a matter of law
and this is the only reasonable determination possible.
The Court
therefore rejects Plaintiff’s contention that the issue of probable
cause presents a jury question that precludes summary judgment
(doc. 42, citing Gardenshire v. Schubert, 205 F.3d 303, 315 (6th
Cir. 2000)).
Plaintiff is justifiably upset that Edwards told him
there were witnesses against him, when at that time, this was a
misrepresentation.
Plaintiff
is
also
justifiably
upset
that
evidence in the record shows Edwards was aggressive with witnesses.
However unfortunate these alleged actions, they do not detract from
the fact that Edwards had probable cause to make the arrest.
It appears to the Court that of all situations, among the
most
difficult
violence.
officers
encounter
involve
those
of
domestic
In such situations, officers are correct to ensure the
saftey of an alleged victim, even if they mistakenly arrest an
innocent.
Illinois v. Wardlow, 528 U.S. 119, 126 (2000)(The law
accepts the risk that officers may arrest the innocent.
Persons
arrested and detained on probable cause to believe they may have
committed a crime may turn out to be innocent).
Having so concluded, the Court agrees with Defendants
that
Edwards
is
entitled
to
summary
-15-
judgment
on
Plaintiff’s
unlawful
arrest
claim
under
Section
1983.
As
there
is
no
underlying constitutional violation, Defendants Fizer and the Board
are similarly entitled to summary judgment.
Similarly, as Edwards
had probable cause there is no basis for his claim for malicious
prosecution.
McKinley v. City of Mansfield, 404 F.3d 418, 444-45
(6th Cir. 2005)(it is “firmly established that where there is
probable
cause
to
prosecute,
prosecution will not lie”).
a
§
1983
action
for
malicious
Plaintiff cannot show that his
detention was unlawful, and therefore his claim for false arrest
under Ohio law also fails.
Harvey v. Horn, 33 Ohio App.3d 140, 146
(1986).
The
Court
already
addressed
its
views
concerning
Plaintiff’s claims that his rights against self-incrimination were
violated, above, in relation to Plaintiff’s motion for summary
judgment.
The Court finds Defendant Edwards entitled to qualified
immunity to the extent that any violation occurred.
that
Edwards
conducted
both
the
administrative
At the time
and
criminal
investigations, no United States Supreme Court, Sixth Circuit, or
Ohio case had found such conduct improper.
Although a more recent
Ohio Supreme Court case found that the same officer should not
conduct both investigations, State v. Jackson, 125 Ohio St.3d 218,
225 (Ohio 2010), such principle was in no way clearly established
in May 2009.
As Plaintiff’s breach of contract claim is premised
on the theory that Edwards violated his right against self-
-16-
incrimination, and the Court found above that there was no material
violation,
the
Court
similarly
grants
summary
judgment
to
Defendants on Plaintiff’s contract claim.
Plaintiff claims Defendants’ actions in this case were
outrageous
such
infliction
of
that
he
emotional
has
a
viable
distress.
articulated, the Court disagrees.
For
claim
the
for
intentional
reasons
already
No reasonable jury could find
that the arrest, investigation, and prosecution were “beyond all
possible
bounds
of
decency
such
that
it
is
atrocious
and
intolerable in civilized community,” a required finding to support
such a claim.
(1983).
reasonable
Yeager v. Local Union 2, 6 Ohio St.3d 369, 375
Similarly Plaintiff’s abuse of process claim fails as no
jury
could
find
the
requisite
showing
that
the
proceedings against him were “perverted to attempt to accomplish an
ulterior purpose for which [they were] not designed.”
Voyticky v.
Village of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005).
There is
simply no evidence in this case that Defendants had any purpose
other than to enforce the laws against domestic violence.
Finally, the Court rejects Plaintiff’s claim against
Defendant Fizer in his official capacity for defamation.
The
record shows Fizer stated publicly that Plaintiff was detained and
that a domestic violence case was pending.
This was all true.
The
record shows that at most, Fizer inaccurately stated the location
of Misty Kirk’s bruises.
The Court does not believe a reasonable
-17-
jury could find malice in the Sheriff’s statements, and as such, no
exception applies to statutory immunity under Ohio Revised Code
2744.02.
III.
Conclusion
This is a regrettable case where a domestic dispute
between
a
soon-to-be
divorced
couple
became
ugly.
It
is
unfortunate that Plaintiff lost his job and spent months in legal
proceedings.
However, the case against him was ultimately dropped
and he was reinstated, with back pay.
In the Court’s view,
Plaintiff would be wise to leave these events behind him and move
on.
There is no real evidence in this case that Defendants
acted in any manner so as to violate Plaintiff’s constitutional
rights or rights under state law.
The only potential exception is
that Defendant Edwards was involved in both the administrative
investigation and criminal proceedings, but such involvement was
not clearly established to be improper at the time.
He is
entitled to qualified immunity.
The evidence in the record rather shows that Defendants
acted on probable cause that Misty Kirk was the victim of domestic
violence.
Because no reasonable jury could find otherwise, the
Court finds correct Defendants’ position as articulated in their
motion, and they are entitled to summary judgment.
Accordingly, the Court DENIES Plaintiff’s Motion for
-18-
Partial Summary Judgment Regarding Liability (doc. 17), and GRANTS
Defendants’ Motion for Summary Judgment (doc. 36).
SO ORDERED.
Dated: October 26, 2011
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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