Humphries v. Chicarelli et al
Filing
160
ORDER granting 118 Motion for Summary Judgment; granting 144 Motion for Summary Judgment as to all claims and as to all defendants. Signed by Chief Judge Susan J. Dlott. (wam1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Timothy W. Humphries,
Plaintiff,
v.
David A. Chicarelli, et al.,
Defendants.
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Case No. 1:10-cv-749
Chief Judge Susan J. Dlott
Order Granting Motions for
Summary Judgment
This matter is before the Court on (1) the Consolidated Motion for Summary Judgment of
Defendants City of Carlisle, David Chicarelli, Dustin Moore, Sherry Callahan, Steven Badger,
Jerry Ellender, and Ronald Hovell (Doc. 144) and (2) the Motion for Summary Judgment of
Defendants Timothy Boggess, James Slyder, and Mark Brooks (Doc. 118). Plaintiff Timothy W.
Humphries, the former mayor of the City of Carlisle, Ohio, has alleged federal and state law
claims against the City and current and former city officials and employees. He asserts,
generally, that Defendants conspired to damage his reputation and have him removed from
office. However, no material facts are in genuine dispute and Defendants are entitled to
judgment as a matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Accordingly, the Court will GRANT the Motions for Summary Judgment.
I.
BACKGROUND
Except where specifically noted otherwise, the facts are derived from the Defendants’
Statements of Proposed Undisputed Facts (Docs. 118-1, 144-1) and Humphries’s Responses
(Docs. 153-1, 154-1) thereto.
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A.
Parties
Plaintiff Humphries held the elected position of the mayor of City of Carlisle for one
four-year term from the beginning of 2008 through the end of 2011. Humphries defeated the
incumbent mayor, Defendant Jerry Ellender, in the 2007 election. Humphries lost to Randy
Winkler in the 2011 election.
Defendant City of Carlisle is a political subdivision of the State of Ohio, as defined in
Chapter 2744 of the Ohio Revised Code. The City has a governing Charter.
Defendant Ellender was the mayor of the City of Carlisle from January 1, 2004 through
December 31, 2007. Defendant Ronald Hovell was the acting city manager for the City in
December 2007. Hovell also acted as the IT manager and he held the position of finance director
for the City. He retired from the City in March 2008. Defendant Sherry Callahan became the
city manager in June 2008. (Doc. 101-1, Callahan Aff. ¶ 1.) Defendant David Chicarelli was a
prosecutor and law director for the City at all times relevant hereto. (Doc. 81, Chicarelli Dep. 7–
8.)
Also at all times relevant hereto, Defendants Steven Badger, Mark Brooks, and Dustin
Moore were police officers, Defendant James Slyder was a police lieutenant, and Defendant
Timothy Boggess was the police chief for the City. (Doc. 33, Am. Compl.; Docs. 34, 37,
Answers.)
B.
Allegations Concerning the Laptop Investigation
The City of Carlisle provided Jerry Ellender with a city-owned laptop computer for his
use while he was mayor. He occasionally brought the laptop computer home. Ellender did not
believe that his use of the laptop was restricted. He may have used the laptop at times for
personal matters. He also permitted his children to use the laptop occasionally. At some point in
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mid- to late-December 2007, Ellender surrendered possession of the laptop by leaving it in the
mayor’s office in the city building.
Ronald Hovell undertook a process to “clean” the laptop before it was assigned to
Humphries, the incoming mayor. Hovell had no formal IT training. (Doc. 74, Hovell Dep. 23.)
Hovell’s intent was to (1) remove and store the files and records created and maintained by
Ellender and (2) to preserve any public records on the computer. Hovell testified that when he
cleaned computers he would delete temporary files, the cache, the history files and other files
that were not relevant. He also ran a defragmenting and scan disk program. He believed that the
scan disk program would delete the internet history. Hovell testified that he would not have
expected to find “a thousand pages of Internet history dating from the opening of the computer
up through January the 3rd of 2008 on the hard drive of the computer had he done a thorough job
of cleaning it.” (Id., Hovell Dep. 50.) Hovell returned the laptop to the mayor’s office after he
completed the cleaning process.
In early 2008, Humphries took possession of the laptop after he became mayor. At least
during the relevant time period, Humphries kept the computer in his office in the city building.
His office door was usually locked. (Doc. 58, Callahan Dep. 79.) Humphries believed that the
laptop was password protected, but he used the log-in name and password of the former mayor.
(Doc. 97, Humphries Dep. 237, 243.) He understood that the laptop was City property and was
provided for his use while he was mayor, but he did not believe his use of it was restricted.
(Doc. 98, Humphries Dep. 280–83.) He acknowledged that the City could access the laptop to
obtain public records stored on the laptop. (Doc. 97, Humphries Dep. 236.) On one occasion,
another City employee used the laptop to make a presentation to City Council. (Id., Humphries
Dep. 243.) Finally, Humphries was aware that the City had an internet policy directed to
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employees, but he did not consider himself an employee and did not ask whether the policy
applied to him in his position as mayor.
In September 2009, Angie Cole, Humphries’s cousin, took a “ride-along” in the patrol car
of Officer Mark Brooks. Officer Brooks testified that Angie Cole told him during the ride-along
that Humphries may have possessed child pornography on his computer. (Doc. 76, Brooks Dep.
54–55, 64–65.) During discovery in this case, she denied telling Officer Brooks that Humphries
had child pornography on his computer. (Doc. 140, Cole Aff. ¶¶ 9–11; Doc. 68, Cole Dep. 47–
48.) However, she admitted telling Officer Brooks that her brother, Casey Cole, told her that
Humphries had “sick shit” on his computer. (Doc. 68, Cole Dep. 47–48.) Casey Cole testified
that he had told Angie Cole that Humphries had “sick stuff” on his computer and that he
“probably would have kids on there too.” (Doc. 66, Casey Cole Dep. 52–53.) Casey Cole
signed a written statement for Officer Brooks stating that he had seen pornographic images on
Humphries’s computer back in the years 2004–2005. (Id. Ex. NN.)
Officer Brooks reported the Angie Cole tip to Lieutenant James Slyder in either
September or November 2009. Lt. Slyder informed Chief Boggess about Brooks’s tip in
November 2009. Lt. Slyder and Chief Boggess determined to begin an investigation by
examining the laptop assigned to Humphries. They informed Sherry Callahan, the city manager,
about the situation. Callahan confirmed that the laptop was owned by the City. Callahan
accompanied the officers to the mayor’s office, one of them unlocked the door, and the officers
viewed the laptop located in the mayor’s office. Lt. Slyder ran a program called PRE SEARCH
on the laptop which searched for photographs on the hard drive. The program displayed images
from the laptop long enough for Lt. Slyder and Chief Boggess to view the faces and bodies of the
people in the images. Lt. Slyder and Chief Boggess believed the images showed males engaged
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in sexual activity. Lt. Slyder described the image of at least one male to be a “young male,” but
both officers testified that they could not estimate the age of the males. (Doc. 70, Slyder Dep.
43; Doc. 72, Boggess Dep. 24.) Lt. Slyder and Chief Boggess then contacted the Warren
County, Ohio Sherriff’s Department and Prosecutor’s Office for assistance.
An assistant prosecutor for Warren County, Ohio drafted a search warrant based on
information she received from Lt. Slyder and Chief Boggess. A Warren County Court of
Common Pleas judge authorized the search warrant on November 5, 2009. The officers then
seized the city-owned laptop from the mayor’s office and a personal desktop computer from
Humphries’s home pursuant to the warrant. Humphries gave his consent for the officers to seize
his home computer pursuant to the search warrant.
The officers then contacted Officer Robert White, a police officer for the City of
Lebanon, Ohio and a member of an FBI computer task force, for assistance in searching the
computers. Officer White found sexually explicit images on the computers, but he did not
believe that any of the images qualified as child pornography. However, he testified that he did
not think that Lt. Slyder or Chief Boggess had been unreasonable for believing that the images
might have involved minors. (Doc. 114, White Dep. 51–52, 57.) Officer White reviewed more
than two hundred images that he found “closest to child pornography” with Lt. Slyder and Chief
Boggess. Officer White did not attempt to determine who had placed the images on the
computer because no child pornography charges would be filed. Humphries was not arrested nor
charged with a crime as a result of this investigation.
Humphries alleged in the First Amended Complaint that the former mayor, Jerry
Ellender, or his son used the City-owned laptop to access sexually-explicit materials on or about
December 25, 2007 and December 26, 2007, when Ellender was still mayor. (Doc. 33 at 383.)
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Evidence found on the laptop by Plaintiff’s purported expert, Jim Sauger, and reviewed by
Officer White, suggests that the laptop remained in Ellender’s possession and was accessed by
members of his household through at least December 27, 2007. (Doc. 114, White Dep. 109–12;
Doc. 126, Sauger Dep. 43–53, 68–77; Doc. 147 Ex. JJJ.) Ellender’s son specifically denied
during his deposition using the City-owned laptop to visit gay pornographic websites. (Doc. 128
at 5042–43.) Ellender testified that he had no knowledge of pornographic materials being
viewed or stored on the laptop when it was in his possession.
C.
Allegations Incidental to the Laptop Investigation
On November 5, 2009, Officer Steven Badger was informed by another officer about the
issuance of the search warrant. Officer Badger was not on duty that day and did not participate
in the laptop investigation. Officer Badger’s son had died several years earlier and his son’s
birthday had been on November 5. Officer Badger called his mother on November 5 to discuss
his deceased son. He mentioned the issuance of the search warrant to his mother during their
conversation. The search warrant was a matter of public record on November 5, 2009, but Chief
Boggess testified that he had ordered his officers not to discuss the laptop investigation outside
of the department. (Doc. 72, Boggess Dep. 54–55.) On November 6, 2009, the Warren County
judge who had authorized the search warrant placed the search warrant under seal. Chief
Boggess later disciplined Officer Badger for violating his “gag order.” (Id.) Officer Badger
accepted without objection the written reprimand and three-day suspension without pay.
At some point on or after November 6, 2009, Chief Boggess spoke to a newspaper
reporter about the existence of the investigation and the warrant. He did not disclose the subject
of the investigation nor what was sought in the warrant.
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David Chicarelli, the City’s law director, was informed about the laptop investigation
after the search warrant was issued. Chief Boggess showed Chicarelli some of the images found
on the laptop. Chicarelli received a copy of the report prepared by Officer White from the FBI
task force. Chicarelli was requested by Callahan or a council member to give a report to City
Council. He prepared a written report which indicated that a search warrant had been issued and
sexually explicit materials had been found on the laptop. He did not state in the report that
images of “male on male” pornography were found on the laptop. Chicarelli’s report was
obtained by a journalist who mentioned it in an article in the Middletown Journal, but Chicarelli
was not interviewed by the reporter.
D.
Driving Incident Allegations
On December 1, 2009 at approximately 12:30 a.m., Officer Dustin Moore, a rookie
officer, was dispatched to the vicinity of State Route 123 in Carlisle, Ohio to respond to 911
telephone calls from the drivers of two vehicles. The two drivers were Humphries and Tyler
Anspach. The men did not know each other prior to the driving incident. Humphries had called
911 to report that another driver was following him too closely. Anspach had called to report that
another driver was driving erratically and appeared to be drunk. Humphries admitted that he
increased and decreased his speed and changed lanes when he believed he was being followed.
(Doc. 97, Humphries Dep. 178–79.) Both Humphries and Anspach pulled over their vehicles
when Officer Moore approached.
Humphries exited his vehicle with a souvenir baseball bat in his hands. He approached
Anspach’s vehicle, which was between his vehicle and Officer Moore’s vehicle. He had been
holding the bat in his hand when he drove in case he needed to defend himself from other driver.
(Id., Humphries Dep. 183.) Officer Moore believed that Humphries was holding the bat with an
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aggressive stance, but Humphries denied that he raised the bat above his waist or that he raised
his voice. (Doc. 139, Moore Dep. 28; Doc. 97, Humphries Dep. 180.) Officer Moore
understood that small bats could be hollowed out and contain a metal pipe in order to use the bat
as a weapon. Officer Moore testified that Humphries gave him the bat when he asked for it, but
Humphries testified that he surrendered the bat to Officer Moore voluntarily and without
prompting. (Doc. 139, Moore Dep. 31–32; Doc. 97, Humphries Dep. 180–81.) Officer Moore
did not observe any sign that Humphries was intoxicated. Officer Moore questioned both
drivers, gave each a warning, and then permitted them to leave. Neither Humphries nor Anspach
indicated that night that they wished to file charges against each other. Officer Moore did not
report the incident to any one nor file an incident report at that time. (Doc. 139, Moore Dep. 38–
39.)
Officer Moore mentioned Humphries’s driving incident to Officer Brooks a few days
later when they were exchanging stories. (Id., Moore Dep. 40.) Chief Boggess later approached
him. Chief Boggess told Officer Moore to write a report and handle the investigation as he
would for any person. Officer Moore wrote an incident report after talking to Chief Boggess.
He also spoke to Anspach again and asked him about being approached by Humphries with the
bat. (Id., Moore Dep. 58–59.) Officer Moore had Anspach complete a witness statement.
After Anspach completed the witness statement, Chief Boggess contacted the city
attorney, David Chicarelli, about the incident. Chicarelli advised that he did not think that
charges could be filed in the City of Carlisle’s Mayor’s Court and that Chief Boggess should take
the matter to the City of Franklin’s prosecutor. (Doc. 81, Chicarelli Dep. 199–200.) Franklin’s
prosecutor, Steve Runge, filed charges against Humphries from the December 1, 2009 driving
incident for aggravated menacing, a first degree misdemeanor, and obstructing official business,
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a fifth degree felony. Citations were issued for the charges and Humphries accepted the citations
without being placed into custody. Chicarelli had no further involvement in the driving incident
other than referring Chief Boggess to the Franklin prosecutor. However, he did speak to
Humphries’s attorney, Kevin Lennen, at one point and indicated to Lennen that he thought
Humphries should resign.
Officer Moore met with the prosecutor on at least one occasion about the charges.
However, he failed to show up at the preliminary court hearing because he did not properly
calendar the event. The charges against Humphries, accordingly, were dismissed. Officer
Moore was disciplined for failing to appear at the hearing. The prosecutor decided not to re-file
the charges.
E.
Procedural History and the February 3, 2012 Order
Plaintiff Humphries initiated this lawsuit in state court on October 21, 2010 against
Defendants the City of Carlisle, David Chicarelli, Sherry Callahan, Chief Timothy Boggess,
Lt. James Slyder, and Officers Dustin Moore, Mark Brooks, and Steven Badger. (Doc. 1-1.)
Defendants removed the action to this Court on October 26, 2010. With leave of the Court,
Humphries filed a First Amended Complaint (Doc. 33) on October 4, 2011, which added to the
suit Defendants Jerry Ellender, Blake Ellender, and Ronald Hovell.
On February 3, 2012, the Court issued an Order dismissing the claims against Blake
Ellender pursuant to a Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 47.) In the
Order, the Court criticized Humphries for “substantive and organizational deficiencies” in the
First Amended Complaint, including the failure to specify the nature of each claim and against
which Defendant(s) the claims were pleaded. (Id. at 476–77.) Accordingly, the Court
specifically instructed the parties to specify in all subsequent briefs the following items for each
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cause of action discussed: (1) the nature of the claim; (2) whether the claim arises under state or
federal law; (3) which Defendant or Defendants the claim is asserted against; and (4) the factual
allegations which support or refute the claim. (Id. at 485.)
Defendants filed the pending Motions for Summary Judgment on October 31, 2012 and
December 3, 2012. The parties were granted leave by the Court to exceed the standard page
limitations because of the number of claims and Defendants in this action. Briefing is complete
and the Motions are ripe for adjudication.
II.
STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56 governs motions for summary judgment. Summary
judgment is appropriate if “there is no genuine issue as to any material fact” and “the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On a motion for summary
judgment, the movant has the burden of showing that no genuine issues of material fact are in
dispute, and the evidence, together with all inferences that can permissibly be drawn therefrom,
must be read in the light most favorable to the party opposing the motion. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986); Provenzano v. LCI
Holdings, Inc., 663 F.3d 806, 811 (6th Cir. 2011).
The movant may support a motion for summary judgment with affidavits or other proof
or by exposing the lack of evidence on an issue for which the nonmoving party will bear the
burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986). In responding to
a summary judgment motion, the nonmoving party may not rest upon the pleadings but must go
beyond the pleadings and “present affirmative evidence in order to defeat a properly supported
motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The Court’s task is not “to weigh the evidence and determine the truth of the matter but to
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determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249. A genuine
issue for trial exists when there is sufficient “evidence on which the jury could reasonably find
for the plaintiff.” Id. at 252. “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
III.
ANALYSIS
Defendants in the Motions for Summary Judgment complied with the Court’s February 3,
2012 Order. Defendants made a good faith attempt to discern every possible claim arguably
made against every possible Defendant in the First Amended Complaint. They set forth the
material, undisputed facts purportedly established by the record and articulated grounds for
granting summary judgment in their favor as to all claims.
Plaintiff Humphries did not comply with the February 3, 2012 Order in his summary
judgment briefing. He failed in his fifty-page Memoranda in Opposition to specify against
which Defendant each claim was asserted and he failed to identify the specific evidence
supporting each claim. He did not provide citations to the record to support most of his
assertions of fact. He failed altogether to address several of the claims which he had asserted
directly or indirectly in the First Amended Complaint.
District courts can “decline[] to consider the merits of [a] claim” which the plaintiff fails
to address in briefs opposing a summary judgment motion. Hicks v. Concorde Career College,
449 F. App’x 484, 487 (6th Cir. 2011). Moreover, courts can consider a claim abandoned when
a plaintiff offers only a perfunctory argument that it should withstand summary judgment. Clark
v. City of Dublin, Ohio, 178 F. App’x 522, 524–25 (6th Cir. 2006); Campbell v. Nally, No. 2:10cv-1129, 2012 WL 4513722, at *11–12 (S.D. Ohio Oct. 1, 2012). Finally, “courts need not
independently comb through the record and establish that it is bereft of a genuine issue of
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material fact before granting summary judgment.” Emerson v. Novartis Pharm. Corp., 446 F.
App’x 733, 734 (6th Cir. 2011). As the Sixth Circuit colorfully has recognized, “[c]ourts do not
engage in a self-directed inquiry into the facts because district judges are not pigs, hunting for
truffles.’” LidoChem, Inc. v. Stoller Enters., Inc., No. 10–1686, 2012 WL 4009709, at *15 (6th
Cir. Sept. 12, 2012) (internal quotation and citation omitted).
For these reasons, the Court assumes that Plaintiff Humphries did not intend to assert a
particular claim against a particular Defendant or has abandoned such claim where he has failed
to support the claim with evidence and legal argument. Specifically, the Court assumes that
Plaintiff abandoned, among other claims, all claims against the City and all claims arising solely
from the driving incident allegations. The Court addresses below those remaining claims which
Plaintiff Humphries asserted in the First Amended Complaint and supported in the Memoranda
in Opposition to the Motions for Summary Judgment.1
A.
Violation of Fourth Amendment Pursuant to 42 U.S.C. § 1983
Humphries contends that summary judgment should be denied to Defendants on his claim
against Chief Boggess, Lt. Slyder, and Officers Brooks, Badger, and Moore for violation of his
Fourth Amendment rights arising from the laptop investigation. (Doc. 153 at 5372.)
Specifically, he alleges that they violated his rights when Lt. Slyder and Chief Boggess ran the
PRE SEARCH program on the City-owned laptop without a warrant. (Doc. 153 at 5365, 5372.) 2
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The Court will not address the merits of the fraud and aiding-and-abetting allegations which Plaintiff Humphries
makes in the Memoranda in Opposition. (Doc. 153 at 5380–81.) Plaintiff Humphries did not assert those claims in
the First Amended Complaint and nor has he established that those issues should be tried by the parties’ express or
implied consent pursuant to Rule 15(b)(2) of the Federal Rules of Civil Procedure. Rather, the Court previously
stated in a footnote in the February 3, 2012 Order that “[t]he Court does not read the First Amended Complaint to
assert a claim for either fraud or aiding and abetting.” (Doc. 47 at 482 n.2.) Humphries did not move for
reconsideration of that Order or otherwise challenge the Court’s finding as to the fraud and aiding-and-abetting
claims.
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Plaintiff Humphries also suggests in the “statement of facts” in the Memoranda in Opposition that the search
warrant by which Humphries’s City-owned laptop and personal computer were seized was improperly obtained.
(Doc. 153 at 5366–71.) However, he does not analyze or explain how the facts alleged establish a Fourth
Amendment violation in the “argument of law” section or against which Defendants such a claim could be proven.
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Section 1983 creates a cause of action to remedy constitutional violations as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State . . . subjects, or causes to be subjected, any citizen of the
United States . . . 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….
42 U.S.C. § 1983. The Fourth Amendment creates a right to be free from “unreasonable
searches and seizures” and states that warrants shall only be issued “upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. Const. Amend 4. Defendants move for summary judgment
on the grounds that the claim fails on the merits or that the individual Defendants are entitled to
qualified immunity.
The doctrine of qualified immunity provides “that government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Qualified immunity provides immunity from suit, not simply a defense to liability. Pearson v.
Callahan, 1555 U.S. 223, 231 (2009). Courts apply a two-part test to determine if qualified
immunity applies: (1) determine whether the facts alleged would establish that the government
official’s conduct violated a constitutional right and (2) determine whether the specific right
violated was clearly established. Saucier v. Katz, 533 U.S. 194, 200–01 (2001). A defendant is
entitled to qualified immunity if his conduct violated a constitutional right, but that right was not
clearly established at the time of the violation. Id. The inquiry into whether the constitutional
right was clearly violated “must be undertaken in light of the specific context of the case, not as a
It is significant, of course, that the search warrant was obtained by an assistant Warren County prosecutor, not by the
Defendants.
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broad general proposition.” Id. at 201. Courts can examine either issue first. Pearson, 555 U.S.
at 236. The plaintiff bears the ultimate burden of proof to establish that a defendant is not
entitled to qualified immunity. Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th Cir.
1992).
The Court begins by recognizing that there is no evidence that Officer Brooks, Officer
Badger, or Officer Moore participated in the search and seizure of the laptop computer. Only
Lt. Slyder and Chief Boggess entered the mayor’s office in the City-owned building and ran the
PRE SEARCH program on the laptop. Officer Brooks initiated the investigation when he
reported the tip he received that Humphries had child pornography or other sexually-explicit
material on his laptop. Humphries does not point to evidence indicating that Officer Brooks was
present for or participated in the search of the laptop.
Likewise, it is undisputed that Officer Badger played no role in the search or seizure of
the laptop. (Doc. 154-1 at 5527.) Officer Badger merely disclosed the existence of the search
warrant to his mother in violation of Chief Boggess’s gag order. The warrant had not been
sealed by the state court judge at the time Officer Badger made the disclosure. Humphries
cannot establish a claim for violation of his federal rights against Officer Badger on these facts as
a matter of law. Finally, the factual allegations against Officer Moore all relate to the driving
incident and not to the laptop investigation. As such, the Fourth Amendment claim fails as a
matter of law as to Officer Brooks, Officer Badger, and Officer Moore.
Humphries contends that the warrantless search of the City-owned laptop was an
unreasonable search and seizure by Lt. Slyder and Chief Boggess. Humphries’s contention
presupposes that he had a legitimate expectation of privacy as to the laptop. He points out that
the tipster, Angie Cole, stated at most that he had sexually-explicit material on his computer, not
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necessarily on the City-owned laptop. “A defendant must satisfy a two-pronged test to show a
legitimate expectation of privacy: 1) he must manifest an actual, subjective expectation of
privacy; and 2) that expectation is one that society is prepared to recognize as legitimate.” U.S.
v. Pollard, 215 F.3d 643, 647 (6th Cir. 2000). Humphries contends that he had a legitimate
expectation of privacy in the laptop. Humphries focuses on the fact that the City did not restrict
his use of the laptop and that the laptop was located in his locked office.
On the other hand, Humphries worked in his office, which was located in the a Cityowned building, only three days per week. (Doc. 98, Humphries Dep. 284.) At least five people
other than Humphries had keys to the mayor’s office, including the city manager, the police
chief, and the city finance director. (Doc. 97, Humphries Dep. 240.) As to the laptop,
Humphries admitted that the laptop had been used by another person to make a presentation to
City Council. (Id., Humphries Dep. 243.) He had not updated the log-in and password on laptop
from those used by the former mayor. He understood that communications he made using the
computer regarding City of Carlisle business were public records and subject to public records
searches. (Id., Humphries Dep. 235–36; Doc. 98, Humphries Dep. 282.) These facts present a
close question as to whether Humphries had a legitimate expectation of privacy in the laptop.
Nonetheless, Defendants contend that their search was reasonable as a matter of law
because Callahan, the city manager, consented to the search of the City-owned laptop. The
Supreme Court has recognized that in some circumstances “permission to search [can be]
obtained from a third party who possessed common authority over or other sufficient relationship
to the premises or effects sought to be inspected.” U.S. v. Matlock, 415 U.S. 164, 172 (1974);
see also U.S. v. Hart, No. 08-109-C, 2009 WL 2552347, at *16 n.83 (W.D. Ky. Aug. 17, 2009)
(applying Matlock to find that company owner could give consent to search workplace computer
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despite the objection of the employee to whom the computer was assigned). Humphries
challenges Callahan’s authority to consent to a search of the laptop computer. He argues that the
city manager was not “a supervisor or co-worker” of the mayor. (Doc. 153 at 5373–74.)
However, the issue is not whether Callahan was Humphries’s supervisor or co-worker given his
status as an elected official. The issue is whether she had common authority over the Cityowned laptop.
The Charter of the Municipality of Carlisle provided that the city manager is the “chief
executive and administrative officer” of the City of Carlisle. (Doc. 58 at 748, Callahan Dep. Ex.
2.) Humphries conceded that “the City” had at least some authority over the laptop to the extent
that “the City” could access the laptop to respond to a public records request. (Doc. 153-1 at
5403.) It follows that Callahan, as the City’s administrative officer, would have authority on
behalf of the City to access the laptop for that purpose. Additionally, Callahan was one of
several city officials with keys to the mayor’s office where the laptop was kept, an office in
which Humphries worked only three days per week. Again, these facts present at least a close
question of whether City Manager Callahan had common authority over the laptop to permit
Lt. Slyder and Chief Boggess to search the City-owned laptop without violating Humphries’s
Fourth Amendment rights.
However, even if a reasonable jury could conclude that Humphries’s Fourth Amendment
rights were violated, Humphries still must establish that the rights violated were clearly
established. The inquiry into whether constitutional rights were clearly established for purposes
of qualified immunity “must be undertaken in light of the specific context of the case, not as a
broad general proposition.” Saucier, 533 U.S. at 201. The relevant specific facts in this case
include that the laptop was City-owned, that it was located in an office in a City-owned building
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in which Humphries worked in only part-time and for which multiple city officials had key
access, that it contained public records which Humphries understood the City had a right to
obtain, and that consent for the search was given by the City’s top administrative officer.
For the reasons explained above, whether Humphries’s Fourth Amendment rights were
violated is not “sufficiently obvious.” Lyons v. City of Xenia, 417 F.3d 565, 579 (6th Cir. 2005)
(internal citation and quotation omitted). Accordingly, Humphries has the burden to identify a
body of “materially similar” case law to prove that the Fourth Amendment rights at issue were
clearly established. See id. He does not meet that burden. Plaintiff Humphries cites to no
caselaw supporting a finding that the search of a City-owned laptop done with the city manager’s
consent violated clearly established rights. In fact, in the Memoranda in Opposition, Humphries
provides only a bare-bones overview of the parameters of qualified immunity generally. (Doc.
153 at 5374.) He makes no attempt to meet his evidentiary burden and explain why Lt. Slyder
and Chief Boggess would not be entitled to qualified immunity under the specific facts of this
case. See Rich, 955 F.2d at 1095 (burden on the plaintiff). Accordingly, the Court finds that
Lt. Slyder and Chief Boggess are entitled to summary judgment on the grounds of qualified
immunity as to the Fourth Amendment claim. See Reardon v. Midland Community Schs., 814 F.
Supp. 2d 754, 774 (E.D. Mich. 2011) (granting summary judgment when the plaintiffs failed to
identify particularized case law establishing the right).
For these reasons, the Court will grant summary judgment to Defendants as to the Fourth
Amendment claims.
B.
Civil Conspiracy
Humphries contends that summary judgment should not be granted as to his claim for
federal civil conspiracy against Officer Brooks, Chief Boggess, Lt. Slyder, David Chicarelli, and
17
Jerry Ellender. (Doc. 153 at 5375–81, 5395–97.) He does not specifically identify any other
named defendants as participating in the conspiracy, but he asserts that Jerry Ellender’s son and
Tyler Anspach, the driver of the other vehicle during the December 1, 2009 driving incident,
were participants in the conspiracy. (Id. at 5380, 5397.) Humphries includes both the laptop
computer investigation and the driving incident charges as being part of one conspiracy to
defame him, violate his rights, and remove him from office.
The Sixth Circuit has set forth the parameters of a claim for federal civil conspiracy:
A civil conspiracy is an agreement between two or more persons to injure another
by unlawful action. Express agreement among all the conspirators is not
necessary to find the existence of a civil conspiracy. Each conspirator need not
have known all of the details of the illegal plan or all of the participants involved.
All that must be shown is that there was a single plan, that the alleged
coconspirator shared in the general conspiratorial objective, and that an overt act
was committed in furtherance of the conspiracy that caused injury to the
complainant.
Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985). A conspiracy can be proven with
circumstantial evidence. Nelms v. Wellington Way Apts., LLC, No. 11-3404, 2013 WL 408034,
at *7 (6th Cir. Feb. 4, 2013).
Defendants move for summary judgment on the grounds that Plaintiff Humphries cannot
establish the merits of a conspiracy claim and on the basis of the intracorporate conspiracy
doctrine. The Court agrees that summary judgment is appropriate on both bases. To begin,
Humphries does not clearly articulate, much less establish with evidence, the existence of a
single plan. Humphries asserts that he alleged in the First Amended Complaint that the
conspirators sought to “deprive the Plaintiff of his rights, privileges, and immunities.” (Doc. 153
at 5379, 5396–97.) These Defendants did not move to dismiss this claim pursuant to Rule
12(b)(6) so the Court has not passed upon the issue of whether Humphries adequately pleaded a
18
conspiracy claim. Regardless, vague and conclusory allegations are not sufficient to withstand a
motion for summary judgment.
Moreover, there is no evidentiary basis to connect the laptop investigation and the driving
incident. The driving incident was instigated when Humphries and Tyler Anspach separately
called 911 to report each other for erratic driving. Officer Moore responded to the incident only
a result of their telephone calls. There is no evidence that Anspach knew about or sought to
further a conspiratorial objective when he made the 911 telephone call or provided witness
statements to Officer Moore.
Additionally, Humphries has not established a genuine issue that an overt act was
committed in furtherance of the alleged conspiracy. The alleged overt act identified by
Humphries in the Memoranda in Opposition is the “downloading and imprinting [of] a ‘Trojan
Horse’” consisting of the sexually-explicit images into the City-owned laptop assigned to
Humphries for his use as mayor. (Doc. 153 at 5379, 5396.)3 Humphries’s accusation that Jerry
Ellender, the former mayor, or his son nefariously accessed sexually-explicit images with the
City-owned laptop in 2007 as a “Trojan Horse” scheme to injure Humphries in 2009 utterly lacks
evidentiary support. There is no evidence that Jerry Ellender knew that pornographic images
were accessed or downloaded onto the City-owned laptop in 2007 prior to the time the laptop
was turned over to Humphries, much less that he shared in an alleged conspiratorial objective.
There may be a question of fact based on the evidentiary record whether Ellender’s son accessed
the sexually-explicit images, but there is no evidence indicating that he did so to further the
alleged conspiratorial designs of the named Defendants.
3
Humphries also cites from the deposition of Kevin Lennen, his attorney at that period, speculating that there may
have been a conspiracy against his client. A non-movant must offer more than non-specific speculation, however, to
defeat a motion for summary judgment.
19
Finally, Defendants are entitled to summary judgment on the basis of the intracorporate
conspiracy doctrine. That doctrine recognizes that it takes two or more persons to have a
conspiracy and that a corporation, acting through one or more agents, cannot conspire with itself.
Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758, 765 n.4 (6th Cir. 2010). The
Sixth Circuit specifically declined in the Estate of Smithers case to determine if the
intracorporate conspiracy doctrine applied to protect police officers and police departments. Id.
at 765 n.6. However, District Courts within this Circuit have applied the doctrine to police
officers and city officials. See Moes v. Woodward, Nos. 1:11-cv-912, 1:12-cv-1092, 2012 WL
5830596, at *6 (W.D. Mich. Nov. 16, 2012) (stating that a City and its employees do not qualify
as “two or more persons”); Irons v. City of Bolivar, --- F. Supp. 2d ---, 2012 WL 4829185, at *2
(W.D. Tenn. Sept. 28, 2012) (stating that alleged conspiracy between agents of a city constituted
a single act of the city); Bradley v. City of Cleveland, No. 1:11cv781, 2012 WL 775106, at *4–5
(N.D. Ohio Mar. 7, 2012) (applying doctrine to police officers). This Court likewise finds that
the City officials and employees constitute one entity for the purposes of civil conspiracy.
Plaintiff Humphries asserts that the inclusion of Jerry Ellender, his son, and Tyler
Aspach, who are not employees of the City of Carlisle, defeats application of this doctrine.
However, the Court explained above that there is no evidence upon which a reasonable jury
could conclude that Ellender, his son, or Aspach, shared in any conspiratorial objective. The
other named Defendants are agents of the City of Carlisle and do not qualify as co-conspirators.
The Court will grant summary judgment to Defendants for all of these reasons.
C.
False Light and Defamation
Turning to the state law claims, Humphries asserts that summary judgment should be
denied as to his false light and defamation claims. Humphries fails to clearly set forth against
20
which Defendants these claims are asserted in disregard of the Court’s February 3, 2012 Order.
He also fails to explain which specific facts in evidence support the claims. Instead, he merely
sets forth the elements of, and discusses the differences between, the torts of false light and
defamation. (Doc. 153 at 5381–83). The argument, at best, is perfunctory. The Court will not
try to independently comb the record to determine whether there are material facts in dispute
sufficient to establish claims of false light or defamation. Accordingly, the Court will grant
summary judgment to all Defendants on the claims of false light and defamation.
D.
Wrongful Interference with Employment
Humphries also asserts that summary judgment should be denied to Defendants on his
claim for wrongful interference with employment. Plaintiff Humphries does not explicitly state
against whom this claim is asserted, but he identifies only David Chicarelli when discussing this
purported claim in the Memoranda in Oppostion. (Doc. 153 at 5384.) The Ohio Supreme Court
has recognized a claim for wrongful interference with a business relationship “when a person,
without a privilege to do so, induces or otherwise purposely causes a third person not to enter
into or continue a business relation with another.” A & B-Abell Elevator Co., Inc. v.
Columbus/Central Ohio Bldg. & Constr. Trades Council, 73 Ohio St. 3d 1, 15, 651 N.E.2d 1283
(1995).
Humphries limits his argument supporting this claim to an excerpt from the deposition of
Kevin Lennen. Lennen was an attorney who represented Humphries at the time the laptop
allegations and the driving incident were being investigated. (Doc. 151, Lennen Dep. 4.)
Lennen testified in this excerpt that Chicarelli told him that Humphries should “consider
resigning” because “they got all this child pornography.” (Doc. 153 at 5384.) This deposition
testimony alone is not sufficient to support a claim for wrongful interference with employment.
21
Humphries did not have a traditional employment relationship with the City of Carlisle.
He was an elected official, not a contractual or at-will employee of the City of Carlisle. To the
extent he could be considered an employee of the City of Carlisle, the tort of wrongful
interference with employment requires interference by someone outside the employment
relationship, not by another employee. Ohio Ass’n of Pub. Sch. Emp. v. Madison Loc. Sch. Dist.
Bd. of Educ., 190 Ohio App. 3d 254, 267, 941 N.E.2d 834 (2010). Chicarelli, as an employee of
the City of Carlisle, cannot be liable under this standard for interfering with Humphries’s
purported employment relationship with the City. Id. Also, Humphries cannot establish any
injury. See Lennon v. Cuyahoga Cty. Juvenile Ct., No. 86651, 2006 WL 1428920, at *5 (Ohio
App. May 25, 2006) (listing injury as an element of the cause of action). Humphries remained in
office as mayor until he lost his bid for re-election in 2011. He was not removed from office by
Chicarelli, the City of Carlisle, or any Defendant prior to that election. The Court will grant
summary judgment to all Defendants on the wrongful interference with employment claim.
E.
Breach of Contract
The breach of contract claim also appears to be asserted against Chicarelli. (Doc. 153 at
5384–85.) Humphries asserts that Chicarelli violated his own employment contract with the City
of Carlisle to represent Humphries. (Id.) Chicarelli’s employment contract stated that he
“contracted to be the legal advisor, attorney and counsel for the City, and for all officers,
departments, divisions, bureaus, boards, commissions and bodies of the City In [sic] connection
with municipal affairs.” (Doc. 81, Chicarelli Dep. Ex. 1.) Humphries’s theory presupposes that
Chicarelli owed a duty to him personally under this employment contract. Even assuming this
theory to be correct, he does not provide facts sufficient to prove a breach of contract.
22
Humphries argues as follows: “David Chicarelli, while under contract to represent
Council members and officers such as the Mayor, worked to publicize falsely that the Plaintiff
had viewed child pornography or homosexual pornography on the laptop computer.” (Doc. 153
at 5384–85.) Humphries, however, does not set forth facts to support the allegation that
Chicarelli “worked to publicize falsely” information about Humphries. Rather, the evidence that
Chicarelli discussed the matter with anyone is limited. Chicarelli provided a report to City
Council upon request in which he which indicated that a search warrant had been issued and
sexually explicit materials had been found on the laptop. The report was leaked to a journalist,
but there is no evidence that Chicarelli leaked the report. There is also no evidence that the
report was untruthful.
Kevin Lennen, Humphries’s attorney, testified that Chicarelli discussed the allegations
against Humphries with him. However, Humphries does not explain how Chicarelli’s
communication with the mayor’s personal attorney would support a claim for breach of contract
for publicizing false allegations. Finally, Humphries does not set forth facts providing damage
or injury from the alleged breach. The Court will grant summary judgment to Chicarelli on the
breach of contract claims.
F.
Substantive Due Process and Procedural Due Process
Humphries sets forth elements of claims for violations of substantive and procedural due
process in his Memoranda in Opposition. (Doc. 153 at 5385–86.) Humphries did not clearly
state claims for violation of due process in the First Amended Complaint. Rather, he alleges in
one paragraph only that he had rights under the Due Process Clause of the Fifth and Fourteenth
Amendments. (Doc. 33 at 377.) In the Memoranda in Opposition, he categorizes the due
process claims as state law claims, but he cites only federal caselaw in explaining the nature of
23
the due process claims. Moreover, in violation of the February 3, 2012 Order, Humphries did
not identify against whom the claims are asserted or the facts which would support or refute the
claims. The Court will not undertake to articulate claims for violations of due process for
Humphries nor will the Court parse through the record searching for facts to support the claims.
See LidoChem, 2012 WL 4009709, at *15 (stating that courts need not engage in a self-directed
inquiry of facts); Emerson, 446 F. App’x at 734 (stating that courts need not independently comb
through the record). The Court will grant summary judgment to Defendants on the purported
claims for violations of due process.
G.
Negligence
Humphries asserts a claim for negligence against Hovell, the IT manager, for failing to
properly “clean” the City-owned laptop before it was transferred from the possession of Ellender,
the former mayor, to Humphries for his use as mayor. (Doc. 153 at 5397–98.) Humphries also
makes vague allegations of negligent hiring or supervision against Callahan, the city manager,
and Chief Boggess. (Doc. 153 at 5390–91, 5393.) The elements of a negligence claim are duty,
breach of duty, and causation of an injury. Menifee v. Ohio Welding Prods., 15 Ohio St. 3d 75,
77, 42 N.E.2d 707 (1984); see also Brittingham v. General Motors Corp., 526 F.3d 272, 278–79
(6th Cir. 2008) (citing Menifee).
Defendants move for summary judgment on multiple grounds, including that they were
entitled to immunity pursuant to Ohio Revised Code Chapter 2744. Ohio Revised Code
§ 2744.03(A)(6) provides “immunity to employees of political subdivisions of Ohio except
where (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 omission were with malicious
purpose, in bad faith, or in a wanton or reckless manner; or (c) civil liability is expressly imposed
24
upon the employee by a section of the Revised Code.” Campbell v. City of Springboro, Ohio,
700 F.3d 779, 791 (6th Cir. 2012). The only provision relevant here is whether the Defendants
are excluded from Chapter 2744 immunity by virtue of the fact that they acted with malicious
puporse, in bad faith, or in a wanton and reckless manner.
Regarding the claim against Hovell, Humphries offers facts which support, at most, a
finding that Hovell failed to exercise due care in cleaning the laptop computer. Humphries does
not point to facts sufficient for a reasonable jury to find that Hovell acted with malice or in bad
faith. Humphries does not dispute Hovell’s testimony that Hovell did not see pornographic
images on the laptop at the time he cleaned it. (Doc. 154-1 at 5524; Doc. 144-2, Hovell Aff.
¶ 5.) He also does not dispute Hovell’s testimony that he did not view the internet history files
when he cleaned the laptop, but that he thought that the internet history would be deleted when
he ran a “scan disk” program. (Doc. 154-1 at 5523–24.) At most, Humphries challenges
whether Hovell was reasonable in his belief because he had not received any formal training on
how to clean a computer. (Id.) No reasonable jury could find that Hovell acted maliciously,
wantonly, or in bad faith based on these facts. Accordingly, Hovell is immune from the
negligence claim pursuant to Ohio Revised Code § 2744.03(A)(6).
The negligent failure to train or supervise claims against City Manager Callahan and
Chief Boggess, to the extent that they arise under Ohio law, also fail as a matter of law.
Humphries alleges that Callahan and Chief Boggess had the duty to hire, fire, train, and
supervise employees in the City of Carlisle police department. (Doc. 153 at 5390–91, 5393.)
Humphries points out that Chief Boggess testified that he was not qualified to conduct a child
pornography investigation. (Doc. 72, Boggess Dep. 72.) In fact, Boggess testified that if child
pornography had been found on Humphries’s City-owned laptop or computer, he would have
25
turned the investigation over to the county sheriff’s office. (Doc. 72, Boggess Dep. 70.) This
statement suggests an intention to avoid negligent police work. Humphries provides no other
relevant purported facts, supported by citation to the record, regarding the negligent training and
supervision claim. Certainly, Humphries has not offered sufficient facts for a reasonable jury to
find that Callahan or Chief Boggess acted with malice or in bad faith. The Court finds that
Callahan and Chief Boggess are entitled to summary judgment on the merits of the negligence
claim or on the basis of qualified immunity pursuant to Ohio Revised Code § 2744.03(A)(6).
IV.
CONCLUSION
For the foregoing reasons, the Motions for Summary Judgment (Docs. 118, 144) are
hereby GRANTED as to all claims and as to all Defendants.
IT IS SO ORDERED.
S/Susan J. Dlott_______________
Chief Judge Susan J. Dlott
United States District Court
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