Snyder et al v. United States of America et al

Filing 28

OPINION AND ORDER granting 11 United States' Motion to Dismiss Claims of Plaintiff Jo Ann Snyder; granting 12 Defendant Special Agent Chris Giordano's Motion to Dismiss; granting 16 Defendants City of Cincinnati and Officer Jason O'Brien's Motion to Dismiss. As all pending motions have been decided and all claims against Defendants dismissed, the Court ORDERS this case CLOSED on its docket. Signed by Judge S Arthur Spiegel on 1/7/2014. (km1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

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:
:
:
:
:
:
:
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JOANN SNYDER, et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
et al.,
Defendants.

NO. 1:13-cv-00284

OPINION AND ORDER

This matter is before the Court on three different motions
to dismiss.

We consider below Defendant the United States of

America’s Motion to Dismiss Claims of Plaintiff Jo Ann Snyder
(doc.

11),

Plaintiff

JoAnn

Snyder’s

Memorandum

in

Opposition

(doc. 20) and Defendant’s reply (doc. 21); Defendant Special
Agent Chris Giordano’s Motion to Dismiss (doc. 12), Plaintiff
JoAnn

Snyder’s

Defendant’s

reply

Memorandum
(doc.

in

22);

Opposition
and

(doc.

Defendants

the

19)
City

and
of

Cincinnati and Officer Jason O’Brien’s Motion to Dismiss (doc.
16), Plaintiff JoAnn Snyder’s Memorandum in Opposition (doc. 18)
and Defendants’ reply (doc. 23).
we GRANT all three pending motions.

1

For the reasons that follow,

I.

Background1

In December 2011, a joint task force of the Federal Bureau
of Investigation (“FBI”) and the Cincinnati Police Department
(“CPD”)

known

as

the

“Safe

Streets

Task

Force”

opened

an

investigation into the illegal sale of prescription narcotics.
As part of that investigation, a confidential informant (“CI”)
stated that one Stephanie Snyder was selling pills believed to
be oxycontin with her mother, whose name might be “JoAnn” (First
Amended Complaint, doc. 9 ¶¶ 17-19).

FBI Special Agent Chris

Giordano conducted a driver’s license search confined to the
Greater Cincinnati area for any female in her 50’s or 60’s named
“JoAnn

Snyder”.

Plaintiff (id. ¶ 20).

That

search

identified

just

one

person—

Giordano showed Plaintiff’s Ohio driver’s

license photograph to the CI, who responded that she could be

1

With one exception, the motions to dismiss pending before
the Court are brought pursuant to Fed. R. Civ. P. 12(b)(6). For
purposes of deciding them, therefore, we accept as true the
factual allegations made by Plaintiffs JoAnn and Larry Snyder in
their First Amended Complaint (doc. 9). Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). We understand Defendant
United States’ motion to dismiss Plaintiff JoAnn Snyder’s claim
for negligent hiring, supervision and retention and for failure
to train (Claim Four) as being brought pursuant to Fed. R. Civ.
P. 12(b)(1), with a motion under Rule 12(b)(6) as in the
alternative. But because we understand the United States’ Rule
12(b)(1) motion to be a facial (as opposed to a factual) attack
against Plaintiff’s claim of subject matter jurisdiction, it
remains appropriate for us in this circumstance as well to
credit the factual allegations made in the First Amended
Complaint. Moher v. United States, 875 F. Supp. 2d 739, 748
(W.D. Mich. 2012).
2

the woman seen selling “Oxy” with Stephanie Snyder if the woman
had been using illegal drugs since the photograph was taken (id.
¶ 21).
On December 8, 2011, the CI arranged to, and in fact did,
purchase sixty (60) pills of oxycontin from Stephanie Snyder and
“her mother” with law enforcement (among them Giordano and City
of Cincinnati Police Officer Jason O’Brien) watching from an
unknown

distance

while

sitting

in

outside the building (id. ¶¶ 22-23).

a

vehicle

on

the

street

No positive identification

was made of the participants (id. ¶¶ 23-24).

Approximately one

month later, Giordano and another FBI agent met with the woman
identified by the CI as “JoAnn”.

Apparently the agents did not

ask for any sort of identification and it is unknown how the
woman

they

met

referred

to

herself,

including

whether

she

referred to herself as “JoAnn” or “JoAnn Snyder” (id. ¶¶ 26-29).
In January 2012, the FBI terminated its investigation, making no
arrests.

However, it offered its file to the CPD and, some four

months later, specifically on April 16, 2012, O’Brien prepared a
criminal complaint and affidavit and secured a warrant from the
Hamilton County Court of Common Pleas for Plaintiff’s arrest
(id. ¶¶ 33-34, 39).

The next day, April 17, 2013, Plaintiff

JoAnn Snyder was pulled over by members of the West Chester,
Ohio police force and her car was surrounded by three police
cruisers (id. ¶ 11).

She was advised that a warrant had been
3

issued for her arrest on charges of drug trafficking (id. ¶ 12).
Thereafter she was arrested and placed in handcuff restraints.
She was seated in the back of one of the police cruisers for
over an hour and then was taken to the West Chester Police
Station where she was held for approximately three (3) more
hours (id. ¶¶ 43-44).
Hamilton

County

Justice

Plaintiff then was transported to the
Center

where

she

was

photographed,

fingerprinted and forced to give a DNA swab (id. ¶¶ 45-46).

She

was subjected to a full body strip search, meaning she had to
remove all of her clothing, squat naked and cough in front of
her jailers (id. ¶ 47).
and

was

not

given

any

Plaintiff was placed in a holding cell
food

or

water

until

5:30

a.m.

the

following morning, which was more than fifteen (15) hours after
her arrest (id. ¶ 48).

She was arraigned on April 18, 2012 at

9:00 a.m. and released on a $1,000 bond at 11:30 a.m.
then,

approximately

twenty-two

(22)

hours

arrest and her release (id. ¶¶ 49-50).

passed

In all,

between

her

On April 27, 2012, the

Hamilton County grand jury ignored the charges against her (id.
¶ 51), and, on August 15, 2012, an “Entry Expunging All Records
Related to Grand Jury No Bill (R.C. 2953.53)” was signed and
filed by Hamilton County Court of Common Pleas Judge Charles J.
Kubicki, Jr. (id. ¶ 52; doc. 20, Exhibit A2).

2

Among the court’s

Because it is referred to in paragraph 52 of the First Amended
Complaint and is central to her claims, this Court can consider
4

findings within that entry was the following one noting “[t]hat
the interests of the applicant in having these records sealed
outweigh the need of the government to maintain such records” to
which

the

Assistant

Prosecuting

Attorney

appended

this

statement, “Ms. Snyder was wrongly accused, State is not and
will not object on grounds that the two-year waiting period has
not expired” (doc. 20, Exhibit A).
Plaintiff maintains that Defendants now know the real name
of the woman referred to by the CI as “JoAnn” who was involved
in the December 8, 2011 pill exchange (doc. 9 ¶ 38).

She

asserts that the woman is not related to Stephanie Snyder in any
familial

capacity,

including

being

her

mother

(id.

¶

37).

Moreover, her surname is not “Snyder” and she never has gone by
the name of “JoAnn Snyder” (id. ¶¶ 30, 38).

II.
In
retired

General Standard of Review under Rule 12(b)(6)
Bell
the

Atlantic

Corp.

half-century-old

v.

Twombly,

pleading

the

standard

Supreme
of

Court

Conley

v.

Judge Kubicki’s entry in resolving these motions to dismiss
without converting them to ones for summary judgment. Jackson
v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999). Had it
not been referenced by Plaintiff, the Court instead would have
taken judicial notice of the photocopy of said entry that is
attached as Exhibit A to Plaintiff JoAnn Snyder’s Memorandum in
Opposition to Defendant the United States of America’s Motion to
Dismiss (doc. 20), again without converting these motions from
Rule 12 to Rule 56. Id.
5

Gibson that a claim should not be dismissed “unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support

of

his

claim

which

would

entitle

him

to

relief.”

Twombly, 550 U.S. 544, 546 (2007) (citing Conley v. Gibson, 355
U.S. 41, 45-46 (1957) (emphasis added)).
Procedure

8(a)(2)

“demands

more

Federal Rule of Civil

than

an

defendant-unlawfully-harmed-me accusation.”

unadorned,

the

Kline v. Mortgage

Electronic Security Systems, 659 F. Supp. 2d 940, 945 (S.D. Ohio
2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
pleading

is

insufficient

if

it

only

offers

“a

A

formulaic

recitation of the elements of a cause of action” or tenders
nothing more than “labels and conclusions.”
at 555.

Twombly, 550 U.S.

A complaint must “state a claim to relief that is

plausible on its face” or risk dismissal under Fed. R. Civ. P.
12(b)(6).
570).

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

While a court must accept as true all of the factual

allegations of the complaint, it is not so bound with regard to
legal

conclusions,

Iqbal,

556

U.S.

at

particularly
678-79

when

(citing

couched

Twombly,

as

the

550

U.S.

former.
at

555

Complaint

of

(citing Papasan v. Allain, 478 U.S. 265, 286 (1986))).
As

detailed

below,

the

First

Amended

Plaintiffs JoAnn and Larry Snyder contains a total of twelve
claims

against

various

defendants.

Some

claims

are

brought

under federal statute, with others sounding in Ohio common law.
6

With regard to the latter, of course, we are bound to follow the
law

of

the

state

as

announced

by

the

Ohio

Supreme

Court.

Savedoff v. Access Group, Inc., 524 F.3d 754, 762 (6th
2008).

Cir.

If the Ohio Supreme Court has not decided a particular

issue, we must do our best to anticipate how it might rule.
re Dow Corning Corp., 419 F.3d 543, 549 (6th Cir. 2005).

In

In this

regard, a decision of an intermediate appellate court may be
considered persuasive unless we believe it would be at odds with
how the highest court might resolve the question.

Id.

III. United States of America’s Motion to Dismiss
Prior
dismiss

to

and

Plaintiffs
prejudice
States

the

pursuant

JoAnn
the

of

filing

and

to

of
a

Larry

following

America:

any
Rule

of

pending

41(a)(1)(A)(ii)

Snyder

claims

the

voluntarily

against

Constitutional

motions

stipulation,

dismissed

Defendant
and/or

to

the

Civil

with

United
Rights

Violations under Bivens and/or 42 U.S.C. § 1983 (Claim One);
Civil Conspiracy to Violate Plaintiff’s Constitutional and/or
Civil Rights under Bivens and/or 42 U.S.C. § 1983 (Claim Two);
and Equal Protection (Claim Three) (see doc. 10 ¶ 2).
claims

asserted

Defendant

United

by

Plaintiff

States

JoAnn

are:

Snyder

Negligent

Thus, the

remaining

Hiring,

against

Failure

to

Train, Negligent Retention and Supervision (Claim Four); False
Arrest

and

Imprisonment

(Claim
7

Five);

Assault

(Claim

Six);

Negligence (Claim Nine); Negligent and/or Intentional Infliction
of Emotional Distress (Claim Ten); and Punitive Damages (Claim
Twelve).

All remaining claims by Plaintiff Larry Snyder against

Defendant United States were previously dismissed by this Court
for lack of jurisdiction (see doc. 26).
A. Plaintiff’s Claim for Negligent Hiring, Supervision and
Retention and for Failure to Train Fails Because it is
Barred by the Discretionary Function Exception
Defendant moves to dismiss Plaintiff’s claim for negligent
hiring,

supervision

and

retention

and

for

failure

to

train

initially under Fed. R. Civ. P. 12(b)(1)—that is, for lack of
subject

matter

jurisdiction.

Once

challenged,

it

becomes

a

plaintiff’s burden to prove jurisdiction to survive the motion.
Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269
(6th Cir. 1990) (citing Rogers v. Stratton Industries, Inc., 798
F.2d 913, 915 (6th Cir. 1986)).

If we find that the Court lacks

subject matter jurisdiction, we need not consider Defendant’s
alternate assertion, namely the sufficiency of this particular
claim under Rule 12(b)(6).
It is a fundamental principal that the United States may
not be sued without its consent.

Montez v. United States, 359

F.3d 392, 395 (6th Cir. 2004) (citing United States v. Orleans,
425 U.S. 807, 814 (1976)).

The Federal Tort Claims Act (FTCA),

however, does waive the sovereign immunity of the United States
in limited circumstances:

“The United States shall be liable,
8

respecting the provisions of this title relating to tort claims,
in

the

same

manner

and

to

the

same

extent

as

a

private

individual under like circumstances, but shall not be liable for
interest prior to judgment or for punitive damages.”
§ 2674 (emphasis added).

28 U.S.C.

Because the United States can be sued

“only to the extent that it has waived its sovereign immunity,
[] ‘due regard must be given to the exceptions’.” Milligan v.
United

States,

670

F.3d

686,

Orleans, 425 U.S. at 814).
U.S.C. § 2680.

692

(6th

Cir.

2012)

(quoting

The exceptions are set forth in 28

Among them is one known as the “discretionary

function” exception, which bars a tort action against the United
States if the claim is “based upon the exercise or performance
or the failure to exercise or perform a discretionary function
or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.”
Id.

§

2680(a).

exception

applies.

A

two-part
First,

inquiry
the

Court

determines
must

whether

ascertain

if

this
the

conduct at issue involved an “‘element of judgment or choice’.”
United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)).

If a

statute, regulation or policy mandates that an employee follow a
particular course of action, then the requirement of “judgment
or choice” is not satisfied.
536).

Id. (citing Berkovitz, 486 U.S. at

But assuming an element of judgment is found to exist,
9

then a second question presents, namely whether “‘that judgment
is of the kind that the discretionary function exception was
designed to shield’.”
U.S. at 536).
prevent

Id. at 322-23 (quoting Berkovitz, 486

Underpinning the exception is Congress’ intent to

“‘judicial

administrative

“second-guessing”

decisions

grounded

in

of

legislative

social,

and

economic,

and

political policy through the medium of an action in tort’.”
Berkovitz,

486

U.S.

at

536

(quoting

United

States

v.

S.A.

Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797, 814 (1984)).

Thus, the exception safeguards “actions and

decisions based on considerations of public policy.”
537.

Id. at

We commence our analysis mindful that “we must construe

waivers

strictly

in

favor

of

the

sovereign.”

Library

of

Congress v. Shaw, 478 U.S. 310, 318 (1986).
Plaintiff avers that “Defendants USA, FBI3, and Cincinnati
negligently hired, failed to train, negligently retained and/or
supervised their employees, agents and/or representatives” (doc.
9 at ¶ 76), with no specifics as to what about the hiring,
training,

retention

or

supervision

was

negligent

or

lacking.

Seemingly more detail would be necessary to examine whether the
element

of

“judgment

or

choice”

is

present.

Defendant

represents that “[t]here are no applicable mandatory statutes or

3

The FBI was dismissed with prejudice from all claims and is no
longer a party to this litigation (see doc. 10 ¶ 4).
10

regulations

that

control

or

constrict

the

FBI’s

exercise

of

discretion in the hiring, supervision, retention, or training of
its

agents”

(doc.

11

at

13

n.3).

Plaintiff

counters

by

attaching “The Attorney General’s Guidelines for Domestic FBI
Operations

(dated

09/29/2008)”

and

“The

Attorney

General’s

Guidelines Regarding the Use of FBI Confidential Human Sources
(dated 12/13/2006)” to her memorandum in opposition (see doc.
20, Exhibits C and D, respectively), and argues that discovery
will reveal whether these guidelines, or any others that might
be applicable, were followed.
Plaintiff’s

stance

misses

the

mark.

At

issue

here

is

whether those individuals at the FBI responsible for hiring and
firing, and the training and supervision that occurs in between,
follow express and explicit mandates or whether they exercise
judgment.

At least two Sixth Circuit panels and two district

courts within have recognized that employment decisions made by
other agencies of the United States are inherently discretionary
in nature and thus fall under the exception.

O’Bryan v. Holy

See, 556 F.3d 361, 383-34 (6th Cir. 2009); Carlyle v. United
States,

Dep’t

of

Army,

674

F.3d

554,

557

(6th

Cir.

1982)

(negligent supervision of army recruits); Zion v. United States,
913 F. Supp. 2d 379, 388-89 (W.D. Ky. 2012) (negligent hiring
and supervision of independent contractor by General Services
Administration);

Whisman

v.

Regualos,
11

No.

08-12133,

2011

WL

4062350, at *6 (E.D. Mich. Sept. 13, 2011) (failure to train
security forces at national guard base).
and

Fourth

Circuit

Courts

of

Appeals

Moreover, the First
have

recognized

that

employment decisions made by the FBI specifically are inherently
discretionary in nature and likewise fall under the exception.
Suter v. United States, 441 F.3d 306, 313 n.6 (4th Cir. 2006)
(claim of negligent hiring and supervision of FBI agent who
participated in undercover investigation of large-scale Ponzi
and

money

laundering

scheme

barred

by

discretionary

function

exception); Bolduc v. United States, 402 F.3d 50, 59-62 (1st Cir.
2005) (claim of negligent supervision of FBI agent who failed to
give federal prosecutors exculpatory evidence to which defense
counsel

was

entitled

barred

by

discretionary

function

The

who

exception).
Bolduc

is

especially

apposite.

FBI

agent

was

responsible for placing the “302” reports in the investigation
file had been advised by supervisors both orally and in writing
that

this

was

an

area

attention to detail.
that

to

which

Id. at 61.

plaintiff-appellants

had

not

he

needed

to

devote

more

The court observed, however,
shown

that

his

supervisors

“were constrained by any law, regulation, or policy to respond
in

a

particular

way

upon

learning

proficient at a particular task.”
“any

federal

statute,

regulation,
12

Id.
or

that

an

agent

was

not

Nor had they referenced
policy

that

dictates

a

specific oversight that FBI hierarchs must practice to ensure
that agents handle exculpatory evidence.”

Id.

Because the

government actors had “latitude” to decide between “alternative
courses

of

action,”

discretionary.
test,

the

Id.

United

the

conduct

at

issue

was

found

States

benefits

from

62 (citing Gaubert, 499 U.S. at 324-25).
rebut

this

supervisory

be

And with regard to the second prong of the
a

presumption

supervisor’s discretionary acts are grounded in policy.

to

to

presumption

conduct

and

ought

be

a

Id. at

A plaintiff’s failure

indicate

not

that

why

considered

the

specific

policy-related

commands a finding that the exception applies.
Defendant

posits

that

the

FBI’s

decisions

regarding

its

investigation of drug trafficking offenses balance timeliness
and speed against accuracy and thoroughness.

Similarly, its

choice of which agents to hire and fire, and how to train and
supervise

them

individual,

while

in

educational

their
and

employ,

encompasses

professional

different

backgrounds

of

both

agents and suspects, issues of safety and security, and everpresent budgetary constraints.

Clearly, these determinations

are discretionary in nature and Plaintiff has not carried her
burden

to

establish

considerations.
issue
tainted

with

why

Rather,

irrelevant

eyewitness

she

case

they

do

not

has

side-stepped

law

concerning

identification
13

and

the

further

policy

this

threshold

photo

line-ups,

reliability

of

the

confidential
matter

informants.

jurisdiction

Therefore,

pursuant

to

because

the

we

lack

discretionary

subject
function

exception to the FTCA, Defendant the United States of America’s
motion to dismiss Plaintiff JoAnn Snyder’s claim for negligent
hiring,

supervision

and

retention

and

for

failure

to

train

(Claim Four) is GRANTED under Rule 12(b)(1).
B. Plaintiff’s Claim for False Imprisonment Fails Because It
Is Asserted Against a Government Actor; Her Claim for False
Arrest Fails Because No Federal Employee Arrested Her and
Because She Was Arrested Pursuant to a Valid Warrant
Ohio law recognizes the tort of false arrest and the tort
of false imprisonment.

The elements of each are essentially

indistinguishable in that “each claim requires proof that one
was

intentionally

confined

.

.

.

for

any

appreciable

against [her] will and without lawful justification.”

time,

Evans v.

Smith, 97 Ohio App. 3d 59, 70, 646 N.E.2d 217, 224 (1994).

One

key difference does exist, however, with regard to the status of
the detaining party.

We believe that Judge Zouhary correctly

stated

observing

Ohio

law

in

that

“[t]he

tort

of

false

imprisonment concerns ‘purely a matter between private persons
for a private end,’ as opposed to a false arrest, which is an
unlawful detention ‘by reason of an asserted legal authority to
enforce the process of law’.”

Vasquez-Palafox v. United States,

No. 3:12 CV 2380, 2013 WL 1500472, at *3 (N.D. Ohio Apr. 10,
2013) (quoting Rogers v. Barbera, 170 Ohio St. 241, 243, 164

14

N.E.2d 162, 164-65 (1960)).

In that case, plaintiff did not

bring both a false arrest and false imprisonment claim.

Rather,

he brought only the latter, which, because the illegal detention
of which he complained was at the hands of Border Patrol agents,
the district court converted into one for the former.
*1,

*4.

In

this

matter,

though,

Plaintiff

appears

Id. at
to

have

brought both torts against the United States although they are
bundled together in her First Amended Complaint as one claim
(see

doc

9

at

13).

However

packaged,

any

claim

for

false

imprisonment against a government actor fails under Rogers.4
Plaintiff’s claim for false arrest likewise fails.

It is

undisputed that Plaintiff was arrested by members of the West
Chester, Ohio police force on the authority of a warrant secured
by Officer O’Brien of the Cincinnati Police Department from the
Hamilton County Court of Common Pleas (doc. 9 ¶¶ 11, 33, 39).
No federal employee participated in her arrest, detention or
imprisonment.

Therefore, the United States is not liable in

tort for false arrest.

See Tunne v. Paducah Police Dept., No.

4

Presumably no party argued this point in the cases cited by
Defendant, and thus it was not necessary for our parent circuit
to consider the distinction. See Ross v. Meyers, 883 F.2d 486,
487 (6th Cir. 1989); Walker v. Schaeffer, 854 F.2d 138, 142 (6th
Cir. 1988). Were the exact question presented, though, we are
confident it would appreciate the difference. See Walker v.
Kroger’s, No. L-93-162, 1994 WL 159764, *2 (Ohio 6 App. Dist.
Apr. 29, 1994) (“Claims of false arrest and false imprisonment
are oftentimes confused. A false imprisonment will necessarily
follow a false arrest, but a false arrest need not precede a
false imprisonment.”)
15

5:08-CV-00188-JHM, 2011 WL 1810521, *5 (W.D. Ky. May 11, 2011);
Palmer

v.

Town

of

Jonesborough,

No.

2:08-cv-345,

2009

WL

1255780, at *6 (E.D. Tenn. May 1, 2009) (“It is axiomatic that a
claim

against

an

officer

for

false

arrest

must

demonstrate,

inter alia, that the officer took part in the arrest.”).
Tunne is particularly instructive. There plaintiff was
arrested

following

an

altercation

at

a

United

States

Post

Office, but the arrest was made by officers of the Paducah,
Kentucky

Police

them.

Id.

at

Department
**2-4.

pursuant
A

to

United

a

warrant

States

Postal

secured

by

Inspector,

Defendant Zeman, also investigated the altercation, but local
authorities

already

had

sought

and

acquired

the

warrant

plaintiff’s arrest prior to Zeman finishing his inquiry.
**3-4.

Following

against
Zeman.

him,

his

plaintiff

acquittal
sued

of

the

several

state

Id. at

charges

defendants,

for

among

filed
them

The district court granted summary judgment in favor of

the government, reasoning that “[n]othing that Defendant Zeman
said or did could have influenced the issuance of the arrest
warrant. It is not alleged that Zeman personally executed the
warrant. Because Defendant Zeman had nothing to do with the
Plaintiff's arrest, there is no liability under the FTCA for his
actions.”

Id. at *5.

Plaintiff
Tunne’s

Zeman,

contends

that

Special

“participated”

in
16

her

Agent

Giordano,

arrest

by

unlike

originally

linking her with the alleged illegal prescription drug sales by
a woman thought to be Stephanie Snyder’s mother, possibly named
“JoAnn”.

We disagree.

It is undisputed that the FBI chose to

make no arrests in this matter and terminated its investigation
in January 2012 (doc. 9 ¶ 33).

It is also undisputed that the

FBI offered its case file to the Cincinnati Police Department in
connection with the joint “Safe Streets Task Force” (id. ¶¶ 17,
33).

That local law enforcement chose to seek a warrant for

Plaintiff’s arrest four months later does not render Special
Agent Giordano a “participant” in the arrest.

See Richardson v.

Nasser, No. 08-12951, 2009 WL 4730446, at *15 (E.D. Mich. Dec.
9,

2009)

(“There

[defendant]

is

nothing

participated

in

in

any

the
way

record
in

to

suggest

[plaintiff]'s

that

arrest.

[Defendant]'s involvement in the investigation was limited to
the

administration

of

polygraph

examinations.

He

did

not

request the prosecutor to charge [plaintiff]. He did not testify
at

the

probable

cause

hearing.

He

did

not

participate

in

[plaintiff]'s arrest. In sum, there is no basis on which to hold
[defendant] liable for false arrest based on his own actions in
this case.” (emphasis added)).

Plaintiff does not allege that

the FBI controlled the CPD’s investigation once it handed over
its file or that it somehow directed CPD officers to arrest her.
Nor does she allege that any federal law enforcement knew that a
warrant would be sought, or actually had been obtained, for her
17

arrest.

The

FBI

simply

shared

its

file

with

the

CPD

for

whatever use the CPD might make of the information contained
within it.

There simply can be no presumption of federal law

enforcement “participation” in this scenario.5
Yet even if this Court were to conclude that Special Agent
Giordano’s initial incorrect identification of Plaintiff somehow
made him a “participant” in her eventual arrest, her claim still
would fail.

The parties agree that, under Ohio law, an arrest

warrant issued by a court is a complete defense to an action for
false arrest unless it is “‘utterly void’.” Voyticky v. Village
of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005) (quoting
McFarland v. Shirkey, 106 Ohio App. 517, 524, 151 N.E.2d 797,
802 (1958)); O’Connor v. Kelty, No. 4:10 CV 338, 2013 WL 322199,
*10 (N.D. Ohio Jan. 24, 2013) (“[A]n arrest and imprisonment
executed upon a facially valid warrant is ‘a complete defense to
a claim for false arrest and imprisonment’.”) (quoting Walker,
supra, No. L-93-162, 1994 WL 159764, *2 (Ohio 6 App. Dist. Apr.
29,

1994)).

Defendant

maintains,

therefore,

that

because

Plaintiff was taken into custody pursuant to a valid warrant
issued by a court of competent jurisdiction, her claim for false

5

We agree with Defendant that public policy considerations
deserve mention. Effective law enforcement depends in large
measure on federal, state and local agencies freely sharing
information. Were the United States to be held liable in this
instance, it might result in a chilling effect vis-à-vis interagency cooperation.
18

arrest fails as a matter of law.

Plaintiff counters that the

warrant issued by the Hamilton County Court of Common Pleas was
not valid because it was based on the flawed identification of
her by Giordano.

We reject Plaintiff’s analysis.

It is true that Plaintiff alleges in her First Amended
Complaint that “[t]he basis for the complaint, affidavit and
arrest warrant issued in Hamilton County, Ohio against [her] was
the false information provided by the FBI to the CPD” (doc. 9 ¶
40

(emphasis

added)).

Giordano

(or

any

withheld

relevant

other

But

Plaintiff

member

evidence

of

or

does

federal

not

allege

law

that

enforcement)

misrepresented

any

of

the

information obtained during the investigation.

Nor does she

allege

other

that

concealed

he

the

outright
truth.

lied

or,

Instead,

through
the

some

essence

of

means,

Plaintiff’s

allegation is that the confidential informant on which Giordano
relied when the FBI was conducting its investigation mistakenly
identified her as Stephanie Snyder’s accomplice and that he, or
other

federal

agents,

should

have

discover that actually she was not.

done

something

more

to

She urges that the totality

of the circumstances suggest that the CI was unreliable, that
his or her identification of her was tainted because he or she
was shown a singular photograph, and that “nebulous”--which we
read in context to mean “insufficient”--efforts were made to
corroborate the tip (see doc. 20 at 10-11).
19

Of course, inasmuch

as the federal agents concluded their investigation and made no
arrests, there would have been no reason to corroborate the CI’s
identification.
that

would

Still, none of this alleged conduct is the type

vitiate

the

“facially

valid

warrant”

defense.

Voyticky, 412 F.3d at 677 n.4 (insufficient when evidence exists
that “defendant intentionally mislead or intentionally omitted
information

at

a

probable

cause

hearing”

(emphasis

added)).

That the information identifying Plaintiff as Stephanie Snyder’s
accomplice ultimately proved to be false does not mean that
probable cause did not support the original issuance of the
warrant.

Further, we note again that federal agents chose to

not bring charges against Plaintiff, and there is no suggestion
that they encouraged the CPD to do so or even were aware that an
arrest warrant would be, or had been, sought for her arrest.
For all these reasons, then, Defendant the United States of
America’s motion to dismiss Plaintiff JoAnn Snyder’s claim for
false arrest and imprisonment (Claim Five) is GRANTED under Rule
12(b)(6).
C. Plaintiff’s Claim for Assault Fails Because No Federal
Officer Touched Her or Attempted to or Threatened to Touch
Her
Under Ohio law, “assault” is a willful threat or attempt to
harm or touch another offensively that results in placing the
other reasonably in fear of such contact.

Smith v. John Deere

Co., 88 Ohio App. 3d 398, 406, 614 N.E.2d 1148, 1154 (1993).
20

Given this definition, it is evident that no such claim can be
stated against the United States because it is undisputed that
no federal law enforcement officer ever touched, or attempted or
threatened to touch, Plaintiff.

As previously recited, the FBI

terminated its investigation in January 2012, choosing to make
no arrests (doc. 9 ¶ 33).

However, it did offer its file to the

Cincinnati Police Department (id.), and some four months later,
by virtue of an affidavit, complaint and warrant executed by
Cincinnati

Police

Officer

O’Brien,

Plaintiff

was

arrested

by

members of the West Chester, Ohio police force on April 17, 2012
(id. ¶ 39, 43-44).
Plaintiff nevertheless urges that if Special Agent Giordano
had

not

mistakenly

photograph

with

associated

Stephanie

her

Snyder

name
as

and

her

driver’s

accomplice

license
in

the

illegal sale of prescription oxycontin, she never would have
been arrested by local law enforcement.
nexus is simply not enough.
conclude

that

federal

law

This alleged “but for”

And even if this Court were to
enforcement

officers

somehow

effectuated Plaintiff’s arrest, no “assault” took place.

Law

enforcement officers are privileged to make physical contact in
the course of an arrest.

Harris v. United States, 422 F.3d 322,

350 (6th Cir. 2005) (rejecting an assault claim under Ohio law
brought

pursuant

to

the

Federal

Tort

Claims

Act

when

Drug

Enforcement Agency officers tapped plaintiff on the shoulder,
21

handcuffed

him

to

a

chair

aggravated

disorderly

and

conduct,

arrested
of

which

him
he

on

a

charge

ultimately

of
was

acquitted by a jury); Hale v. Vance, 267 F. Supp. 2d 725, 736
(S.D. Ohio 2003).

The contact of which Plaintiff complains,

being “handcuffed, forced to give a DNA swab, fingerprinted, had
her mug shot taken, and subjected to a full body search” (doc.
20 at 17 (citing doc. 9 ¶¶ 43-46)), are part of a typical arrest
protocol.

No claim has been—or could be—made that the contact

at issue amounted to excessive force. Therefore, Defendant the
United

State

of

America’s

motion

to

dismiss

Plaintiff

JoAnn

Snyder’s claim for assault (Claim Six) is GRANTED under Rule
12(b)(6).
D. Plaintiff’s Claim for “Negligent Investigation”
Because No Such Claim Exists under Ohio Law

Fails

Plaintiff’s claim for “negligence” is quite sparse.

It

states that all Defendants, the United States included, owed an
unspecified “duty of care” to her which they violated by their
“actions and/or failure to act” (see doc. 9 ¶ 96).
context

with

the

overall

framework

of

the

First

Read in
Amended

Complaint, however, we agree with Defendant that the claim she
appears to state is one for “negligent investigation”.

The fact

pattern alleged by Plaintiff depicts Special Agent Giordano and
the other federal law enforcement officers with whom he worked
as less than thorough in their investigation.

22

Had they been

more careful in trying to identify Stephanie Snyder’s accomplice
as

described

by

the

confidential

informant,

such

as

making

additional efforts to ascertain her actual first and last names
and

whether

she

and

Stephanie

Snyder

truly

were

Plaintiff ultimately would not have been arrested.

related,

Just as we

agree with Defendant as to the gravamen of Plaintiff’s claim,
the Court also agrees that it is not recognized under Ohio law.
The FTCA waives the United States’ sovereign immunity and
authorizes personal injury suits against it for negligent acts,
or failures to act, only “under circumstances where the United
States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission
occurred”

28 U.S.C. § 1346(b)(1) (emphasis added).

United

States,

Molzof

v.

583

United

F.3d

States,

916,
502

(6th

919-20
U.S.

301,

Cir.
305

Brown v.

2009)

(citing

(1992)).

There

appears to be no Ohio Supreme Court ruling on the existence of a
tort

for

negligent

intermediate

appellate

investigation,
courts

have

but

at

declined

least
to

two

recognize

Ohio
it,

Stallworth v. Greater Cleveland Reg’l Transit Auth., No. 73533,
1998 WL 774987, *4 (Ohio App. 8 Dist. Nov. 5, 1998); Lamson v.
The Firestone Tire & Rubber Co., No. 14692, 1991 WL 35098, *3
(Ohio App. 9 Dist. Mar. 13, 1991), as has an Ohio trial court,
Smith

v.

Interim

Services,

Inc.,

No.

33134348, *1 (Ohio C.P. June 14, 1999).
23

99CVH02-952,

1999

WL

With no indication that

the Ohio Supreme Court would decide differently, we “decline the
invitation to speculate that [it] would be receptive to such a
claim.”
1995).

See Rodriguez v. United States, 54 F.3d 41, 47 (1st Cir.
Therefore,

Defendant

the

United

State

of

America’s

motion to dismiss Plaintiff JoAnn Snyder’s claim for negligence
(Claim Nine) is GRANTED under Rule 12(b)(6).
E. Plaintiff’s Claims for Negligent Infliction of Emotional
Distress as well as Intentional Infliction of Emotional
Distress Both Fail as a Matter of Law
(1)
Ohio

Negligent Infliction of Emotional Distress
recognizes

the

tort

of

negligent

infliction

of

emotional distress in essentially two instances, namely when an
individual was a bystander to a serious accident or was in fear
of physical injury to herself.

High v. Howard, 64 Ohio St. 3d

82, 85-86, 592 N.E.2d 818, 820-21 (1992), overruled on other
grounds,

Gallimore

v.

Children’s

Hospital

Ohio St. 3d 244, 617 N.E.2d 1052 (1993).

Medical

Center,

67

Defendant maintains

that any “fear of physical injury” suffered by a plaintiff must
be as a result of her witnessing a serious accident.

Typically

that circumstance has been the case in the rare occasions when
the

Ohio

proceed.

Supreme

Court

has

allowed

this

cause

of

action

to

See, e.g., Schultz v. Barberton Glass Co., 4 Ohio St.

3d 131, 447 N.E.2d 109 (1983); Paugh v. Hanks, 6 Ohio St. 3d 72,
451 N.E.2d 759 (1983).

That “bystander” tie, though, apparently

is not an absolute, as reflected by the discussion of precedent
24

in

Heiner

(1995).

v.

Moretuzzo,

There

the

73

court

Ohio
found

St.
that

3d
an

80,

652

N.E.2d

individual

664

falsely

diagnosed as “HIV [the human immunodeficiency virus] positive”
could not recover for emotional distress because she never faced
actual physical peril as a result of the alleged negligence of
her caregivers.

In other words, because that plaintiff was not

“HIV positive,” the alleged negligence of the medical personnel
involved in the false diagnosis did not produce an actual threat
of physical harm to her or any other person.

The text of the

opinion in Heiner nicely surveys the prior decisions that have
shaped the court’s definition of the elements necessary to state
a claim under this theory.
The citation to Paugh in High provides clear justification
for the statement that recovery for negligent infliction of
emotional distress has been limited to instances where the
plaintiff was a bystander to an accident. Likewise, the
citation in High to Criswell [v. Brentwood Hosp., 49 Ohio
App. 3d 163, 551 N.E.2d 1315] lends valuable insight into
the statement that a right to recovery has also been
recognized in instances where the plaintiff was placed in
fear of physical consequences to his or her own person.
73 Ohio St. 3d at 86, 652 N.E.2d at 669.

The facts in Heiner

were somewhat similar to those in Criswell cited above.

Maria

Criswell took her young daughter Veronica to a family health
center because she complained of stomach pains and a vaginal
itch.
her

The cultures taken at the order of the physician treating
indicated

that

the

child

had

chlamydia,

a

sexually-

transmitted disease; as required by statute, the staff at the
25

center notified the authorities that Veronica was a possible
victim of child abuse.

Veronica was taken to another hospital,

where a second set of cultures revealed that she did not have
chlamydia.

The Court of Appeals for Cuyahoga County upheld the

trial court’s dismissal of the claim for negligent infliction of
emotional distress, noting:
The claimed misdiagnosis of Veronica put the child in no
physical peril. Ohio case law has recognized negligent
infliction of emotional distress only where there is
cognizance of a real danger, not mere fear of nonexistent
peril.
49 Ohio App. 3d at 165, 551 N.E.2d at 1317-18 (emphasis added).
While it seems appropriate, then, to infer that fear of a real
and existing physical peril need not necessarily be linked to
witnessing or experiencing a violent accident, Ohio courts have
yet to provide an example of what that situation might be.
far,

with

one

exception,6

Ohio

courts

only

have

Thus

identified

particular events that do not suffice.

6

In Carney v. Knollwood Cemetery Ass’n, 33 Ohio App. 3d 31, 514
N.E.2d 430 (1983), when preparing a grave in a family plot, the
remains of a long-deceased relative were accidentally
disinterred. Because burial of a newly-deceased relative was
imminent, the workers dumped the skeletal remains in a heap just
outside the cemetery grounds. Six months later, family members
learned what happened after a television news crew received a
tip, discovered the remains and notified the police. Suit was
filed, and a jury returned an award in favor of the family for
negligent infliction of emotional distress. On appeal, the
cemetery argued that the trial court should have directed a
verdict in its favor. The Cuyahoga County Court of Appeals
disagreed, stating “there was until recent years no general
availability of recovery for infliction of emotional distress
26

Upon consideration, we believe that the Ohio Supreme Court
would regard the circumstance before us inadequate as well.

The

“actual physical peril” of which Plaintiff complains is being
“handcuffed, arrested, imprisoned, subjected to a cavity search,
not provided food, water or her medication for several hours”
(doc. 20 at 18 citing doc. 9 ¶¶ 45-46, 48).

These events,

however, occurred by virtue of actions taken by local rather
than

federal

standard

law

officers.

procedure

individual

is

taken

Moreover,

followed
into

by

law

custody.

they

are

part

enforcement

No

“peril”

is

of

the

when

an

involved—

indeed, quite the opposite, as these practices are designed to
protect

law

enforcement

from

those

being

arrested

arrested from others taken into custody.

and

those

Were we to accept

Plaintiff’s premise, every individual arrested and then released
based on a mistaken identity would state a claim for negligent
infliction of emotional distress.

We recognize that the Ohio

Supreme Court has expressed its commitment to “remain vigilant
in [its] efforts to ensure an individual’s ‘right to emotional
tranquility’” (Heiner, 73 Ohio St. 3d at 88, 451 N.E.2d at 670
(quoting Paugh, 6 Ohio St. 3d at 74, 451 N.E.2d at 463)), and we
have

no

doubt

that

this

entire

experience

was

unnerving

without accompanying physical injury. Abuse of dead bodies,
however, has received extraordinary treatment in the courts.”
Id. at 34, 514 N.E.2d at 433. This exception clearly is not
applicable to the case at bar.
27

to

Plaintiff.

But as Justice Douglas noted in writing the opinion

of the court in Heiner, “the facts of this case remind us that
not every wrong is deserving of a legal remedy.”
N.E.2d

at

670.

Therefore,

Defendant

the

Id. at 88, 652

United

States

of

America’s motion to dismiss Plaintiff JoAnn Snyder’s claim for
negligent

infliction

of

emotional

distress

(Claim

Ten)

is

GRANTED under Rule 12(b)(6).
(2)

Intentional Infliction of Emotional Distress

The Ohio Supreme Court recognized the tort of intentional
infliction

of

serious

emotional

distress

in

Yeager

v.

Local

Union 20, 6 Ohio St. 3d 369, 374-75, 453 N.E.2d 666, 670-71
(1983).

Based

on

its

reading

of

Yeager,

the

Sixth

Circuit

reduced the standard into these four elements: “(1) defendants
intended to cause emotional distress, or knew or should have
known that their actions would result in plaintiff’s serious
emotional

distress,

outrageous,

(3)

(2)

defendants’

defendants’

conduct

actions

was

extreme

proximately

and

caused

plaintiff’s emotional injury, and (4) plaintiff suffered serious
emotional anguish.”

Miller v. Currie, 50 F.3d 373, 377 (6th

Cir. 1995) (citations omitted).

Defendant maintains that none

of these elements can be met.
Review
Plaintiff
officer

of

does

the
not

committed

First
allege

an

act

Amended
that
with
28

any
the

Complaint
federal
intent

confirms

that

law

enforcement

to

cause

harm

specifically

to

her.

As

we

continue

to

recall,

the

FBI

terminated its investigation in January 2012, making no arrests,
and offered its file to the Cincinnati Police Department (doc. 9
¶ 33).

Plaintiff was arrested by members of the West Chester,

Ohio police force on April 17, 2012, some four months later, by
virtue

of

an

affidavit,

complaint

and

warrant

executed

by

Cincinnati Police Officer O’Brien the day before (id. ¶ 39, 43).
Her

claim

of

confinement,

emotional

actions

distress

taken

by

stems

local

from

rather

her
than

arrest

and

federal

law

officials.
Contrary to Plaintiff’s stance that it is “premature to
determine the merits” of her claim (doc. 20 at 19), we heed the
observation

made

by

Judge

Cohn,

sitting

by

designation

and

writing for the panel in Miller, who noted that it is “well
accepted”

that

emotional

distress

claims

“may

entirely

appropriately be dealt with on summary judgment or in a motion
to

dismiss.

Id.

at

377-78

(citing

Rogers

v.

Targot

Telemarketing Servs., 70 Ohio App. 3d 689, 691, 695-96, 591
N.E.2d 1332, 1333, 1335-36 (1990) (emphasis added)).

And we

believe the simplest approach is to focus on the second element
of the Yeager standard.

Without an allegation of conduct that,

as a matter of law, is extreme and outrageous, Plaintiff’s claim
must be dismissed.

29

The Ohio Supreme Court articulated the essence of “extreme
and outrageous” conduct as follows:
It has not been enough that the defendant has acted
with an intent which is tortious or even criminal, or
that he has intended to inflict emotional distress, or
even that his conduct has been characterized by “malice,”
or a degree of aggravation which would entitle the
plaintiff to punitive damages for another tort. Liability
has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the
recitation of the facts to an average member of the
community would arouse his resentment against the actor,
and lead him to exclaim, “Outrageous!”
6 Ohio St. 3d at 374-75, 453 N.E.2d at 671 (quoting Restatement
(Second)

of

authority,

Torts
we

§

46(1)

conclude

that

cmt.

d

the

(1965)).

improper

Applying

this

identification

of

Plaintiff leading to her mistaken arrest is not the set of facts
that “‘to an average member of the community would arouse his
resentment

against

the

actor,

and

lead

him

to

exclaim,

“Outrageous!”’.” 6 Ohio St. 3d at 375, 453 N.E.2d at 671.

As we

have recounted previously, a confidential informant tipped FBI
Special Agent Giordano that a woman named Stephanie Snyder—and
her

mother

whose

oxycontin pills.

name

could

be

“JoAnn”—might

be

selling

In an effort to locate a photograph to obtain

a positive identification from the CI and with no surname other
than “Snyder” in the mix, Giordano ran a driver’s license search
for a woman named “JoAnn Snyder” in an appropriate age band.

30

Plaintiff’s photograph was the only match, and the CI indicated
that the woman in the picture could be the one he saw if she had
been using illegal drugs since it had been taken.

For Giordano

to proceed on the assumptions that Stephanie Snyder shared the
same surname as her mother and that a woman selling illegal
oxycontin pills might also be a user of them herself, stops well
short of “Outrageous!” conduct.

We venture to say one might

regard those initial assumptions to be reasonable all things
considered.

Nonetheless, under any measure, it clearly is not

conduct “‘so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community’.”

Id.

Again, nowhere

does Plaintiff allege that federal officers were involved in, or
even aware of, her subsequent arrest by the CPD.

She hopes to

proceed on the theory that the inexact efforts by Agent Giordano
to

identify

attempt

Stephanie

Snyder’s

accomplice

was

“catalyst” that led to her arrest (see doc 20 at 20).

the
As a

matter of law, however, the conduct of this federal official
plainly

cannot

intolerable.”

be

considered

Therefore,

either

Defendant

“atrocious”
the

United

or

“utterly

States

of

America’s motion to dismiss Plaintiff JoAnn Snyder’s claim for
intentional

infliction

of

emotional

GRANTED under Rule 12(b)(6).

31

distress

(Claim

Ten)

is

F. Plaintiff’s Claim for “Punitive Damages” Fails Because
Punitive Damages are Not Available against the United
States under the Federal Tort Claims Act
As recited earlier, the FTCA provides specifically, “The
United States shall be liable, respecting the provisions of this
title relating to tort claims, in the same manner and to the
same extent as a private individual under like circumstances,
but shall not be liable for interest prior to judgment or for
punitive damages.”
does

not

28 U.S.C. § 2674 (emphasis added). Plaintiff

dispute

this

limitation

(see

doc.

20

at

20).

Therefore, Defendant the United State of America’s motion to
dismiss

Plaintiff

JoAnn

Snyder’s

claim

for

punitive

damages

(Claim Twelve) is GRANTED under Rule 12(b)(6).

IV.

Special Agent Chris Giordano’s Motion to Dismiss

Prior
dismiss

to

and

Plaintiffs

the

filing

pursuant

JoAnn

and

to

of
a

Larry

any
Rule

of

the

pending

41(a)(1)(A)(ii)

Snyder

voluntarily

motions

to

stipulation,

dismissed

with

prejudice the following claims against Defendant Special Agent
Chris Giordano:

False Arrest and Imprisonment (Claim Five);

Assault (Claim Six); Negligence (Claim Nine); Negligent and/or
Intentional Infliction of Emotional Distress (Claim Ten); and
Loss of Consortium (Claim Eleven) (see doc. 10 ¶ 3).
claims

asserted

Defendant

by

Giordano

Plaintiff
are:

JoAnn

Snyder

Constitutional
32

Thus, the

remaining

and/or

Civil

against
Rights

Violations under Bivens and/or 42 U.S.C. § 1983 (Claim One);
Civil Conspiracy to Violate Plaintiff’s Constitutional and/or
Civil Rights under Bivens and/or 42 U.S.C. 1983 (Claim Two);
Equal

Protection

Twelve).

(Claim

There

are

Three);

no

and

claims

by

Punitive

Damages

(Claim

Larry

Snyder

Plaintiff

remaining against Defendant Giordano.
A. Plaintiff’s Claims Fail Because Special Agent Giordano is
Entitled to Qualified Immunity
We begin by observing that Plaintiff’s first, second and
third

claims

violations

couched

her

constitutional

of

are

in

the

alternative.

rights

under

She
Bivens

pleads
v.

Six

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) or of her
civil rights under 42 U.S.C. § 1983.

Defendant Giordano, of

course, is an employee of the FBI and thus a federal actor.
Therefore, he cannot be sued under Section 1983.

See, e.g.,

Shepherd v. Sheldon, No. 1:11 CV 127, 2011 WL 2971965, at *7
(N.D. Ohio July 21, 2011) (“[T]his statute does not apply to
defendants as they are federal actors . . . .”).
therefore,
claims

on

against

the

presumption

Defendant

that

Giordano.

Plaintiff
As

We proceed,

asserts

Defendant

Bivens

correctly

observes, however, federal courts permissibly consult case law
addressing

Section

1983

against federal actors.

claims

when

weighing

Bivens

claims

See Harlow v. Fitzgerald, 457 U.S. 800,

33

818 n.30 (1982) (citing Butz v. Economou, 438 U.S. 478, 504
(1978)).
Qualified immunity generally protects government actors who
perform discretionary functions and shields them from liability
for civil damages “as long as their actions could reasonably
have been thought consistent with the rights they are alleged to
have violated.”

Anderson v. Creighton, 483 U.S. 635, 638 (1987)

(citing Malley v. Briggs, 475 U.S. 335, 341 (1986)

(qualified

immunity protects “all but the plainly incompetent or those who
knowingly violate the law”)); Mitchell v. Forsyth, 472 U.S. 511,
528

(1985)

(officials

are

immune

proscribed the actions” they took));

unless

“the

law

clearly

Harlow, supra, 457 U.S. at

818 (immunity attaches so long as the conduct “does not violate
clearly established statutory or constitutional rights of which
a

reasonable

person

would

have

known.”)).

The

doctrine

of

qualified immunity thus would protect Defendant Giordano “‘from
liability for civil damages insofar as [his] conduct d[id] not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known’.”

Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow, supra, 457
U.S. at 818).

Prior to the Supreme Court’s decision in Pearson,

a

analysis

two-tiered

threshold question:
party

asserting

the

was

required,

beginning

with

this

“Taken in the light most favorable to the
injury,

do
34

the

facts

alleged

show

the

officer’s conduct violated a constitutional right?”

Saucier v.

Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500
U.S. 226, 232 (1991)).

If the answer to that initial inquiry is

negative, immunity attaches.

If not, “[and] a violation could

be made out on a favorable view of the parties’ submissions, the
next, sequential step is to ask whether the right was clearly
established.”

Id.

Pearson ruled that following Saucier’s “two-

step protocol” is not mandatory, but remains permissible.
U.S. at 821.

555

A lower court, in its discretion, now may consider

the second question first if it believes such a path “will best
facilitate

the

before it.

fair

and

efficient

disposition”

of

the

case

We still are at liberty, however, to follow the

Saucier-prescribed sequence if we find it “worthwhile.”

Id.

Qualified immunity is “‘an immunity from suit rather than a
mere defense to liability’.”

Id. (quoting Mitchell, supra, 472

U.S. at 526 (emphasis original)).

The United States Supreme

Court has been resolute and consistent in its message that “the
‘driving

force’

behind

creation

of

the

qualified

immunity

doctrine was a desire to ensure that ‘“insubstantial claims”
against government officials be resolved prior to discovery’.”
Id. at 231-32 (quoting Anderson, 483 U.S. at 640 n.2).

Immunity

questions,

earliest

therefore,

should

possible stage in litigation.”

be

resolved

“at

the

Hunter v. Bryant, 502 U.S. 224,

227 (1991) (per curiam).
35

Defendant
immunity

Giordano

bars

because:

asserts

Plaintiff’s

(1)

the

that

first,

conduct

of

the

second

which

doctrine
and

she

qualified

third

claims

complains

is

not

intentional but amounts to, at most, negligence; (2) he was not
personally involved in her arrest; and (3) she was arrested
pursuant to a valid arrest warrant.
(1)

We agree all around.

False Arrest

To succeed on a Bivens claim, a plaintiff must prove that
“the individual defendants acted with the intent to deprive them
of

their

constitutional

[suffice].”

rights;

negligence

alone

will

not

Milligan v. United States, supra, Nos. 3:07-1053,

3:08-0380, 2009 WL 2905782, at *3 (M.D. Tenn. Sept. 4, 2009)
(emphasis added), aff’d, 670 F.3d 686 (6th Cir. 2012); see Connor
v. Helo, No. 85-5215, 1987 WL 44930, at *3 (6th Cir. Oct. 2,
1987) (“Since this was a Bivens action, [plaintiff] had the
burden of proving that the individual defendant acted with the
intent to deprive him of rights secured by the constitution.
Mere

negligence

is

(emphasis added)).

insufficient

to

ground

a

Bivens action.”

As discussed in previous portions of this

Opinion and Order, particularly Sections III.D. and III.E.(2),
such intent simply cannot be attributed to Defendant Giordano.
While

he

may

have

relied

on

information

erroneous,

such

as

the

first

accomplice

(“JoAnn”)

and

the

name

existence
36

of
of

that

later

Stephanie
a

proved

Snyder’s

mother-daughter

relationship between them allowing the inference that they could
share the same surname (“Snyder”), Plaintiff does not allege
that he lied or made any intentional misrepresentations during
his investigation.

Thus, he remains entitled to the presumption

of immunity.
Hale v. Kart is instructive.

There an officer was called

to a private residence to resolve a domestic dispute.
721, 723 (6th Cir. 2005).

396 F.3d

The female in the relationship was

intoxicated and informed the officer, who in turn involved a
deputy county sheriff, that the father of two of her children,
Plaintiff Hale, sold prescription drugs out of his home.

Id.

The deputy, Defendant Kart, obtained a search warrant based on
his interview with the female.

His affidavit did not include

the fact that the female was angry at Plaintiff Hale or that she
was under the influence of alcohol.

Although some prescription

drugs and a significant amount of currency were found in the
search,

Plaintiff

Hale

was

not

arrested.

Defendant Kart under Section 1983.
Circuit
immunity,

reversed
and

the

district

reaffirmed

the

He

later

Id. at 724.

court’s
standard

denial
by

which

sued

The Sixth

of
to

qualified
evaluate

warrants obtained on the basis of erroneous information. Id. at
726 (“[P]laintiffs must make a strong preliminary showing ‘that
the

affiant

with

an

intention

to

mislead

excluded

critical

information from the affidavit, and the omission is critical to
37

the

finding

of

probable

cause’.”

(quoting

Mays

v.

City

of

Dayton, 134 F.3d 809 , 816 (6th Cir. 1998) (emphasis original)).
So, too, is Milligan, supra.

The U.S. Marshals Service,

pursuant to a warrant for “Paula Milligan” a.k.a. “Paula Rebecca
Staps,”

arrested

Plaintiff

Paula

Ann

Milligan.

It

was

undisputed that the law enforcement officials arrested the wrong
person.

2009 WL 2905782, at *1.

The district court denied the

motion by plaintiff and her husband to reinstate their Bivens
claims.
would

To resurrect these claims would be futile, as they

be

subject

immunity.

To

to

this

dismissal
end

the

on

the

trial

grounds

judge

of

qualified

concluded,

“Mrs.

Milligan's arrest resulted from certain law enforcement errors
that constituted, at most, negligence.”

Id. at *3.

circumstance attends Plaintiff Snyder’s arrest.
identified

Stephanie

mistake,

the

driver’s

license search was reasonable under the circumstances.

In like

more.

As

we

Snyder’s
have

accomplice

That she was
a

nothing

as

The same

concluded

was

already,

manner, Special Agent Giordano’s reliance on the judgment of the
confidential
photograph

informant
could

be

about
the

whether

accomplice

7

the
was

woman

in

that

appropriate.7

We are not persuaded by Plaintiff’s “improper and unduly
suggestive photo line-up” theory (see doc. 19 at 7-9). As
defense counsel notes, the facts upon which we proceed make
plain that Special Agent Giordano used this photograph to get a
sense of whether he had found the proper target for his
investigation. One might infer that he discovered he did not,
38

A

presumption

that

might

be

also

rational.

a

a

seller

user

of

of

illegal

illegal

prescription

prescription

narcotics

narcotics

is

Plaintiff alleges that Defendant Giordano eventually

met with the accomplice and did not ask her to produce any
identification

(see

doc.

9

¶

27).

Again,

assuming

its

truthfulness, this allegation bespeaks an oversight, a guileless
negligent act.
We segue next into a brief discussion of the second reason
why Defendant Giordano is entitled to immunity, namely his lack
of personal involvement with her arrest.

We recall again, as

more fully detailed in Section III.B. of this Opinion and Order,
that

Special

behalf

of

arrests.

the

Agent
FBI

Giordano
in

concluded

January

2012

and

his

investigation

elected

to

make

on
no

Four months later, Plaintiff was arrested by the West

Chester police force on the authority of a warrant secured by a
Cincinnati

police

officer

from

a

Hamilton

County

court.

Plaintiff does not allege that Defendant Giordano controlled or
directed local law enforcement once he turned the investigative
file over to them, or that he knew that a warrant would be

as he ended his, and the FBI’s, involvement. Regardless, no
inference is necessary to observe that he purposefully did not
seek a warrant for her arrest. Moreover, we do not believe that
Defendant Giordano was under an obligation to excise mention of
Plaintiff JoAnn Snyder from the investigation file that was
offered to the Cincinnati Police Department for its use.
Neither Plaintiff nor any other citizen has a constitutional
right to be free from a law enforcement investigation.
39

sought, or had been obtained, for her arrest.
these

circumstances

merit

a

finding

of

Without a doubt,

immunity.

Jacob

v.

Township of West Bloomfield, 192 Fed. App’x, 330, 336 (6th Cir.
2006)

(“To

succeed

[],

a

plaintiff

must

show

personal

involvement by the defendant in the constitutional violation.”).
In

Lozada

v.

Wilmington

Dep’t

of

Police,

local

law

enforcement officers from Wilmington, Delaware were assigned to
work

in

tandem

Administration.

with

federal

Using

his

agents

driver’s

of

the

license

Drug

Enforcement

photograph,

they

mistakenly identified Plaintiff Heriberto Lozada as the driver
of a vehicle involved in the sale of heroin.

Civ. A. No. 07-

663, 2008 WL 1994870, at *1 (E.D. Pa. May 5, 2008).

Federal law

enforcement sought a warrant that was executed by officers in a
different

municipality.

following

his

Plaintiff

arrest.

Wilmington

officers

individual

he

identified

as

saw

At

a

Heriberto

jailed

pretrial

realized
driving

was

that

the

for

hearing,

plaintiff

vehicle,

who

Lozada-Espinoza.

four

one

was

days

of
not

the

eventually

was

Charges

against

plaintiff were dropped, and he filed a Section 1983 suit.
constitutional

false

arrest

claim

against

the

the

The

Wilmington

officers was dismissed, however, because the trial court opined,
“where

an

officer

merely

provides

information

and

neither

participates in the arrest, nor directs others to effectuate the
arrest,

he

cannot

be

liable

for
40

false

arrest.”

Id.

at

*4

(quoting Miller v. County of Allegheny, Civ. A. No. 05-733, 2006
WL 3332809, at *8 (W.D. Pa. Nov. 16, 2006)).

The actions of

Defendant Giordano mimic this situation; thus, we conclude that
he bears no legal responsibility for Plaintiff Snyder’s arrest
and is immune from suit.
Finally,

we

conclude

that

Defendant

Giordano

also

is

entitled to immunity because Plaintiff was arrested pursuant to
a facially valid warrant supported by adequate probable cause.
“‘An arrest pursuant to a facially valid warrant is normally a
complete defense to a federal constitutional claim for false
arrest

or

false

imprisonment,’

unless

the

defendant

intentionally misled the court or omitted ‘material information’
in seeking the warrant.”

Nerswick v. CSX Transp., Inc., 441

Fed. App’x 320, 322 (6th Cir. 2011) (quoting Voyticky, supra, 412
F.3d at 677, 677 n.4). The Court has discussed before in Section
III.B. of this Opinion and Order our belief that probable cause
supported Plaintiff’s arrest.
Giordano

is

accused

does

The conduct of which Defendant

not

undercut

the

“facially

valid

warrant” defense. As we have noted in a previous ruling, the law
accepts the risk that in some cases officers may arrest the
innocent.

So long as the arrest is based on probable cause,

however, it passes muster.

See Young v. Owens, No. 1:11-CV-

00853, 2013 WL 1915098, at *6 (S.D. Ohio May 8, 2013).

For all

these reasons, then, because we conclude that no constitutional
41

rights have been compromised and thus his actions are immune
from suit, Defendant Special Agent Chris Giordano’s motion to
dismiss

Plaintiff’s

claim

for

false

arrest

(Claim

One)

is

GRANTED under Rule 12(b)(6).
(2)
To

Civil Conspiracy
avoid

a

Rule

12

dismissal

of

this

type

of

claim,

Plaintiff must allege facts that establish these three premises:
a

“single

plan”

conspiratorial

existed,

objective

the

to

participants

deprive

“shared

[her]

of

constitutional rights” and an “overt act” was committed.

a

[her]
Faith

Baptist Church v. Waterford Twp., No. 10-1406, 2013 WL 1489387,
at *6 (6th Cir. Apr. 11, 2013)

(civil conspiracy under Section

1983) (quoting Revis v. Meldrum, 489 F.3d 279, 290 (6th Cir.
2007).
some

Moreover, civil conspiracy claims must be pled “‘with
degree

of

specificity’”

and

“‘vague

and

conclusory

allegations unsupported by material facts’” will not suffice.
Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003) (civil
conspiracy under Section 1983) (quoting Gutierrez v. Lynch, 826
F.2d 1534, 1538 (6th Cir. 1987).
Plaintiff’s
avers

in

the

allegations
First

Amended

fall

substantially

Complaint

that

short.

all

She

Defendants

“conspir[ed] to violate her constitutional [] rights” without

42

reference to which ones (see doc. 9 ¶ 65)8, that they “engaged,
participated, arranged, contributed, knew, and/or should have
known that J[oAnn] Snyder was not the subject person involved in
any illegal activity at issue” (id. ¶ 66) and that Defendant
Giordano

“provided

false

Defendant

Cincinnati

and

Police

defamatory

Department

and

information”
Officer

to

O’Brien

“knowing and intending” for them to act upon it (id. ¶ 67).
These

allegations,

though,

Church, are threadbare.

like

the

ones

in

Faith

Baptist

The “single” plan to which all were

privy remains unidentified, and while Plaintiff maintains that
Giordano “intended” for the City Defendants to “act” on the
information, there is no allegation that he knew or intended
that a warrant for her arrest would be, or had been, sought.
Nor is there a suggestion that he contemporaneously learned that
a warrant had issued for her arrest.

Further, a four-month gap

between the close of his investigation and Officer O’Brien’s
choice

to

seek

a

warrant

weakens

the

case

for

concerted

or

“conspiratorial” activity. Therefore, finding again the lack of
a constitutional violation in providing erroneous information to
a local law enforcement agency, Defendant Special Agent Chris
Giordano is entitled to qualified immunity and his motion to

8

Not until review of her Memorandum in Opposition do we learn
that she believes she was deprived of “her Fourth Amendment
right and right to due process” (see doc. 19 at 15-16).
43

dismiss Plaintiff’s claim for civil conspiracy (Claim Two) is
GRANTED under Rule 12(b)(6).
(3)
A

Equal Protection
facially-valid

equal

protection

claim

requires

a

plaintiff to plead adequately that the government treated her
“‘disparately as compared to similarly situated persons and that
such

disparate

treatment

either

burdens

a

fundamental

targets a suspect class, or has no rational basis’.”

right,

Center for

Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th
Cir. 2011) (quoting Club Italia Soccer & Sports Org., Inc. v.
Charter
2006)).

Twp.

of

Shelby,

Mich.,

470

F.3d

286,

299

(6th

Cir.

The “threshold element” of an equal protection claim,

therefore, is disparate treatment.

Id. (citing Scarbrough v.

Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006)).
Plaintiff does not allege anywhere within her First Amended
Complaint that she is a member of any protected class or that
any

Defendant,

including

Special

Agent

Giordano,

took

against her based on her membership in any such class.

action
Rather,

the action of which Plaintiff complains is Defendant Giordano’s
failure to more precisely identify the woman who, along with
Stephanie Snyder, participated in the December 8, 2011 illegal
sale of oxycontin pills.

It is disingenuous for Plaintiff to

suggest in her memorandum in opposition that “individuals in
their ‘50’s-60’s’ were targeted for arrest, despite the police’s
44

lack of verifiable information” (doc. 19 at 16).
clear

inference

Amended

from

Complaint

is

the

allegations

that

the

age

appearing

band

chosen

Rather, the
in

her

by

First

Defendant

Giordano was defined by the confidential informant’s tip “that a
woman named Stephanie Snyder and her mother were selling pills
believed to be ‘Oxy’” (doc. 9 ¶ 19 (emphasis added)).

Given

such a description, to run a database search of a woman in her
fifties or sixties does not bespeak disparate treatment based on
age.

In this circumstance, that Plaintiff happens to be over

forty years of age is purely coincidental and thus unsupportive
to

any

claim

of

an

equal

protection

violation.

See

Tunne,

supra, No. 5:08CV–188–R, 2010 WL 323535, *2 (W.D. Ky. Jan. 21,
2010) (claim brought against state law enforcement officer fails
when

a

plaintiff

does

not

allege

that

“the

failure

to

investigate was on the basis of race or other characteristic
that would implicate any equal protection violation” (emphasis
added)).

As before, because no constitutional right in this

regard has been violated, Defendant Special Agent Chris Giordano
is entitled to qualified immunity and thus his motion to dismiss
Plaintiff

JoAnn

Snyder’s

claim

for

Three) is GRANTED under Rule 12(b)(6).

45

equal

protection

(Claim

B. Plaintiff’s Claim for “Punitive Damages” Fails Because a
Federal Employee Has Absolute Immunity from any State Law
Torts Committed in the Scope of His Employment and Because
Her Bivens Claims Do Not Survive Defendant’s Rule 12(b)(6)
Challenge
Ohio law does not recognize a separate cause of action for
“punitive

damages.”

Pierson

v.

Rion,

No.

CA23498,

2010

WL

1636049, *9 (Ohio App. 2 Dist. April 23, 2010) (“[I]t is well
settled that a civil cause of action sounding solely in punitive
damages cannot be maintained.”) (citing Richard v. Hunter, 151
Ohio St. 185, 189, 85 N.E.2d 109, 111 (1949)).
damages

are

entitled

a

in

type

certain

governed by statute.

of

damages

to

circumstances

which

a

and,

in

Rather, punitive
plaintiff
Ohio,

may

they

be
are

In tort actions, a prevailing plaintiff

must first be awarded compensatory damages by the trier of fact.
O.R.C. § 2315.21(C). Then, she must establish, by clear and
convincing evidence, that the defendant acted, or failed to act,
with

malice

or

“aggravated

or

egregious

fraud.”

Id.

§§

2315.21(C), 2315.21(D)(4).
Defendant urges that, even if Ohio recognized a separate
tort action for “punitive damages,” it would fail as a matter of
law

with

respect

him.

The

Court

agrees.

The

Rule

41(a)(1)(A)(ii) stipulation to which we referred earlier states
expressly

that

“Defendant

Special

Agent

Chris

Giordano

was

acting within the scope of his employment as an agent of the
Federal

Bureau

of

Investigation
46

with

respect

to

the

investigation at issue in this lawsuit” (doc. 10 ¶ 1).

Thus,

under the FTCA, any tort claim against Giordano becomes a claim
against the United States (see 28 U.S.C. §§ 1346(b)(1), 26712680),9 which, as previously discussed, is not liable in punitive
damages (id. § 2674 and Section III.F. supra).
Plaintiff

explains

that

she

alleged

“punitive

damages”

specifically as a claim “in order to clarify her prayer for
relief against all Defendants” (doc. 19 at 16).

Such a response

is puzzling inasmuch as she prays for punitive damages in the
“Relief Requested” portion of her First Amended Complaint (doc.
9

at

18).

Particularly

with

regard

to

Defendant

Giordano,

however, Plaintiff urges that she would be entitled to request
punitive damages in the event she prevails on her Bivens claims
against him.

See, e.g., Hui v. Castaneda, 559 U.S. 799, 805

(2010) (citing Carlson v. Green, 446 U.S. 14, 21-22 (1980)).
The issue of damages is now moot, however, inasmuch as we have
dismissed
Chris

those

Giordano’s

claims.
motion

Therefore,
to

dismiss

9

Defendant
Plaintiff

Special
JoAnn

Agent

Snyder’s

Because Plaintiff brought all the state tort claims asserted
initially against Special Agent Giordano against the United
States as well, there apparently was no need to substitute the
latter for the former. Rather, the parties’ Rule
41(a)(1)(A)(ii) stipulation instead dismissed with prejudice the
United States from Plaintiff’s constitutional claims (doc. 10 ¶
2) and in turn dismissed with prejudice Special Agent Giordano
from Plaintiff’s state tort claims (id. ¶ 3).
47

claim for punitive damages (Claim Twelve) is GRANTED under Rule
12(b)(6).

V.

City of Cincinnati and Officer Jason O’Brien’s Motion
to Dismiss

Plaintiffs JoAnn and Larry Snyder did not enter into a Rule
41(a)(1)(A)(ii)

stipulation

with

Defendants

the

City

of

Cincinnati and Officer Jason O’Brien prior to the filing of
these pending motions to dismiss.

Thus, the claims asserted by

Plaintiff JoAnn Snyder against Defendants City of Cincinnati and
O’Brien
under

are:
Bivens

Constitutional
and/or

42

and/or

U.S.C.

§

Civil
1983

Rights

(Claim

Violations

One);

Civil

Conspiracy to Violate Plaintiff’s Constitutional and/or Civil
Rights under Bivens and/or 42 U.S.C. § 1983 (Claim Two); and
Equal Protection (Claim Three); False Arrest and Imprisonment
(Claim Five); Assault (Claim Six); Malicious Prosecution (Claim
Seven); Abuse of Process (Claim Eight); and Negligence (Claim
Nine). Plaintiff JoAnn Snyder also brings a claim for Negligent
Hiring, Failure to Train, Negligent Retention and Supervision
(Claim Four) against Defendant City of Cincinnati.

A single

claim of Loss of Consortium (Claim Ten) is asserted by Plaintiff
Larry Snyder against Defendant City of Cincinnati and O’Brien.
The claims asserted by both Plaintiffs JoAnn and Larry Snyder
against Defendant City of Cincinnati and O’Brien are:

48

Negligent

and/or Intentional Infliction of Emotional Distress (Claim Ten)
and Punitive Damages (Claim Twelve).
Plaintiffs’ factual allegations involving Officer O’Brien
and, in turn, the City of Cincinnati are fewer.
deciding

their

motions

to

dismiss,

we

For purposes of

accept

as

true

the

involvement of the Cincinnati Police Department in the “Safe
Streets Task Force” with the FBI (doc. 9 ¶ 17) and Officer
O’Brien witnessing from a distance the December 8, 2011 sale of
oxycontin by Stephanie Snyder and her accomplice, whose identity
was not confirmed (id. ¶¶ 23, 24).

We also accept as true that

Officer O’Brien prepared a criminal complaint and affidavit and
secured a warrant from the Hamilton County Court of Common Pleas
for Plaintiff JoAnn Snyder’s arrest approximately four months
later,

specifically

on

April

16,

2012

(id.

¶

40).

The

information proffered to support his complaint and affidavit was
that contained within the investigative notes of Special Agent
Giordano (id. ¶ 41) and neither O’Brien, nor any other member of
the CPD, made any further inquiry into the true identity of the
accomplice (id. ¶ 42).
Snyder’s

subsequent

The details concerning Plaintiff JoAnn

arrest

and

detainment,

as

well

as

the

Hamilton County Grand Jury’s return of a “no-bill” and Judge
Kubicki’s entry of expungement, of course, are common to both
the federal and municipal actors.

49

A. The Civil Rights Claims Asserted by Plaintiff JoAnn Snyder
against Defendants City of Cincinnati and O’Brien Fail as a
Matter of Law
Because they are state (actually, municipal) rather than
federal actors, defendants the City of Cincinnati and Officer
O’Brien are appropriately sued under 42 U.S.C. § 1983.
generally Scheuer v. Rhodes, 416 U.S. 232 (1974).

See

We note that

Officer O’Brien is sued both in his official and individual
capacities.

In Hafer v. Melo, the Supreme Court reviewed and

clarified

distinction

the

individual)-capacity

between

suits

official-

brought

and

under

personal

Section

(or

1983.

Official-capacity suits “‘“generally represent only another way
of pleading an action against an entity of which an officer is
an agent”’.” 502 U.S. 21, 25 (quoting Kentucky v. Graham, 473
U.S. 159, 165 (1985) (quoting Monell v. New York City Dep’t of
Soc. Servs., 436 U.S. 658, 690 n.55 (1978))).

A suit against a

state official in his official capacity should be regarded as a
suit against the State itself.

Graham, 473 U.S. at 166.

The

governmental entity rather than the named official is the “real
party in interest” in an official-capacity suit, and thus “‘the
entity’s
violation

“policy
of

or

federal

custom”
law’.”

must

have

Hafer,

502

played

a

part

U.S.

at

25

in

the

(quoting

Graham, 473 U.S. at 166 (quoting Monell, 436 U.S. at 694)).
Accordingly, the “only immunities available to the defendant in
an

official-capacity

action

are
50

those

that

the

governmental

entity possesses.”
U.S. at 167).
impose

Hafer, 502 U.S. at 25 (citing Graham, 473

Personal-capacity suits, in contrast, “seek to

individual

liability

upon

a

government

actions taken under color of state law.”

officer

Id. at 25.

for

Personal

liability is established when “‘the official, acting under color
of state law, caused the deprivation of a federal right’.” Id.
(quoting Graham, 473 U.S. at 166).

Tie to a “policy or custom”

need not be proved by a plaintiff, and an official sued in his
personal capacity may “assert personal immunity defenses such as
objectively reasonable reliance on existing law.”

Hafer, 502

U.S. at 25 (citing Graham, 473 U.S. at 166-67)).

As noted in

Section

IV.A.

of

this

Opinion

and

Order,

the

case

law

that

comprises Bivens and Section 1983 jurisprudence essentially is
interchangeable,

including

decisions

attending

whether a government actor is immune from suit.

the

issue

of

Harlow, supra,

457 U.S. at 818 n.30 (“We have found previously . . . that it
would

be

‘untenable

to

draw

a

distinction

for

purposes

of

immunity law between suits brought against state officials under
§ 1983 and suits brought directly under the Constitution against
federal officials’.” (quoting Butz, supra, 438 U.S. at 504)).
Defendant O’Brien asserts that the doctrine of qualified
immunity bars Plaintiffs’ first, second and third claims as to
him

in

his

individual

capacity.

Just

as

we

concluded

that

Defendant Special Agent Giordano was entitled to immunity, we
51

agree that Defendant O’Brien is as well.

The essence of the

facts alleged with regard to O’Brien is that he should not have
relied
seeking

exclusively
a

warrant

on

Giordano’s

for

Plaintiff

investigation
JoAnn

Snyder’s

notes

when

arrest,

but

rather should have done something more to identify Stephanie
Snyder’s accomplice.

The Court already has recited in detail

why we believe that the actions attributed to Giordano were
reasonable under the circumstances in Sections III.D., III.E.(2)
and IV.A.(1) of this Opinion and Order.
O’Brien’s

reliance

reasonable.10

on

the

work

Concomitantly, we find

product

of

Giordano

to

be

That he did not “double-check” the accuracy of the

information within the FBI’s file does not amount to a civil
rights

violation.

At

most,

it

might

be

tantamount

to

negligence, but “negligence does not equate to a constitutional
violation.”
Cir.

2010).

Fettes v. Hendershot, 375 Fed. App’x 528, 532 (6th
Fettes

also

involved

a

Section

unlawful arrest under the Fourth Amendment.

1983

claim

for

Robert Fettes, Sr.

owned a holding company that operated a number of pizza parlors.
It filed for bankruptcy protection in 1998, when its assets were
10

In her memorandum in opposition, Plaintiff posit that it would
be a “reasonable inference” for the Court to presume that
because O’Brien was a member of the joint task force, he played
some role in identifying her as Stephanie Snyder’s accomplice
(see doc. 18 at 7-9). On the contrary, given the specific
allegations she made in the First Amended Complaint about the
identification and interview process in which Giordano engaged
(see doc. 9 ¶¶ 17-21, 26-29), we think such an inference quite
unreasonable.
52

bought by son, Robert Fettes, Jr.

Junior formed a new company

that continued to operate the same pizza parlors.

Id. at 529.

In 2004, however, the new company came under the scrutiny of an
agent of the Ohio Bureau of Workers’ Compensation for failure to
pay premiums.

The agent initiated a criminal complaint, and a

municipal

court

deputy

clerk

signed

and

issued

the

private

warrant.

Senior was pulled over for a traffic stop by a local

police officer, who made a routine call to his dispatch to learn
if

there

were

any

outstanding

warrants

on

the

driver.

The

dispatch responded affirmatively, and Senior was arrested and
taken into custody, at which time he protested that he was not
the correct “Robert Fettes”.

Within a couple of hours, the

matter was straightened out using social security numbers, and
Senior was released.

Id. at 530.

Senior sued a number of

municipal actors, among them the dispatch.

The Sixth Circuit

found no constitutional violation:
Under the Fourth Amendment, the validity of an arrest
warrant depends, inter alia, upon its issuance being
supported by probable cause. Baker v. McCollan, 443 U.S.
137, 142-43 [] (1979). Arrest warrants in the hands of a
police officer, unless facially invalid, are presumed
valid. The Supreme Court has held that if, in executing a
presumptively valid arrest warrant, the police reasonably
mistake a second person as being the individual named in
the warrant and arrest him, the arrest of the second person
does not offend the Constitution. Hill v. California, 401
U.S. 797, 802 [] (1971).
In Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989),
this court held that ‘police and correction employees may
rely on facially valid arrest warrants even in the face of
53

vehement claims of innocence by reason of mistaken identity
or otherwise.’ Id. at 1253 (citing Baker, 443 U.S. at 145
[]).
Id. at 532.

Senior argued to no avail that the dispatch should

have done a better job at verifying that the warrant was not for
him but rather for Junior.11

Id. at 532-33.

For the same

reasons, we reject Plaintiff’s claim that O’Brien should have
investigated
Snyder”.

further

before

seeking

a

warrant

for

“JoAnn

Thus, because no constitutional violation has been

stated, Officer O’Brien is entitled to immunity.12
In the absence of any unconstitutional conduct by Officer
O’Brien, the City of Cincinnati itself cannot be liable under
Section 1983.

Watkins v. City of Battle Creek, 273 F.3d 682,

687 (6th Cir. 2001) (citing City of Los Angeles v. Heller, 475
11

Our parent circuit took note as well that the dispatch did not
arrest Senior, much as Special Agent Giordano did not arrest
Plaintiff JoAnn Snyder. Fettes, supra, 375 Fed. App’x at 532.
Fettes was an appeal of a district court’s denial of qualified
immunity on summary judgment. Plaintiffs’ memoranda in response
to all three motions to dismiss are replete with references to
the fact that discovery is needed before the Court can make a
proper assessment of Defendants’ immunity defense. To this end
we quote Judge Marbley, “Despite the Supreme Court's instruction
to raise the qualified immunity issue ‘at the earliest possible
stage in litigation,’ Hunter, [supra,] 502 U.S. at 227 [], many
parties wait until the summary judgment stage to raise the
issue. It is not clear to us why a government official would
submit himself to depositions and other discovery methods,
rather than assert his entitlement to qualified immunity
immediately after being served with a § 1983 complaint.” Id.
(emphasis added).
12
Nor have constitutional violations been stated with regard to
civil conspiracy and equal protection, and thus Officer O’Brien,
just like Special Agent Giordano, is entitled to immunity on
these claims, too. See Sections IV.A.(2) and (3), supra.
54

U.S. 796, 799 (1986) (per curiam)).

The First Amended Complaint

states, without elaboration, that culpability arises out of “de
facto policies, procedures and/or customs which include, but are
not

limited

discipline,

to,

to

a

transfer,

failure
monitor,

to

properly

counsel

or

train,

supervise,

otherwise

control

[its] employees and agents and/or a ratification or acquiescence
of [its] employees and agents’ unlawful actions” (doc. 9 ¶ 60).
With no factual context, this “allegation” amounts to no more a
legal conclusion, one we are not bound to accept in deciding
this

Rule

12

motion.

(citations omitted).

Iqbal,

supra,

556

U.S.

at

678-79

Moreover, a single instance of alleged

unconstitutional conduct will not suffice to state a Section
1983 claim against a municipality.

In City of Oklahoma City v.

Tuttle, the widow of a man shot by police sued, alleging that
his death was the result of inadequate training.
(1985).

471 U.S. 808

Her argument was rejected in light of the precedent

established by Monell, supra.

Justice Rehnquist stated:

Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless
proof of the incident includes proof that it was caused by
an existing, unconstitutional municipal policy, which
policy can be attributed to a municipal policymaker.
Otherwise the existence of the unconstitutional policy, and
its origin, must be separately proved. But where the policy
relied upon is not itself unconstitutional, considerably
more proof than the single incident will be necessary in
every case to establish both the requisite fault on the
part of the municipality, and the causal connection between
the “policy” and the constitutional deprivation.

55

471 U.S. at 823-24 (footnotes omitted).

Plaintiff JoAnn Snyder

alleges a single instance of conduct, her mistaken arrest.

Even

if we had found that it was not supported by probable cause,
under Monell as applied by Tuttle, the City still would not be
liable.

Therefore,

the

motion

to

dismiss

Plaintiff

JoAnn

Snyder’s claims for civil rights violations under 42 U.S.C. §
1983 (Claim One), for civil conspiracy to violate same (Claim
Two) and for equal protection (Claim Three) against the City of
Cincinnati and Officer O’Brien (in his official and individual
capacities) is GRANTED under Rule 12(b)(6).
B. The State Tort Claims Asserted by Plaintiff JoAnn Snyder,
both Individually and Jointly with her Husband, and by
Plaintiff Larry Snyder, both Individually and Jointly with
his Wife, against Defendants City of Cincinnati and O’Brien
Fail as a Matter of Law
Chapter 2744 of the Ohio Revised Code governs whether a
political subdivision, including its agencies and employees, has
immunity

from

liability.

As

in

the

federal

arena,

when

an

employee is sued in his official capacity, it is considered a
suit against the political subdivision itself.

Whether immunity

attaches depends on a three-tiered analysis set forth in O.R.C.
§ 2744.02(B).

See Elston v. Howland Local Schools, 113 Ohio St.

3d 314, 317-18, 865 N.E.2d 845, 848-50 (2007).

The first tier

establishes a general grant of immunity by the language, “a
political subdivision is not liable in damages in a civil action
for injury . . . or loss to person . . . allegedly caused by any
56

act or omission of the political subdivision or an employee of
the political subdivision in connection with a governmental or
proprietary function.”

O.R.C. § 2744.02(A)(1) (emphasis added).

The second tier then focuses on the five exceptions listed in
O.R.C. § 2744.02(B).

If any of the exceptions are applicable,

then the third tier directs a court to determine whether any of
the defenses contained in O.R.C. § 2744.03(A)(1)-(5) apply so as
to “reinstate” immunity.

Lambert v. Clancy, 125 Ohio St. 3d

231, 233, 927 N.E.2d 585, 588 (2010) (citing Elston, 113 Ohio
St. 3d at 317, 865 N.E.2d at 849).
If that same employee of the political subdivision is sued
also

in

his

individual

or

personal

capacity,

2744.03(A)(6) governs the immunity analysis.
St. 3d at 321, 865 N.E.2d at 852.
unless:

“(a)

[that]

O.R.C.

§

Elston, 113 Ohio

Such an employee is immune

employee’s

acts

or

omissions

were

manifestly outside the scope of the employee’s employment or
official

responsibilities;

(b)

[that]

employee’s

acts

or

omissions were with malicious purpose, in bad faith, or in a
wanton

or

reckless

manner;

[or]

(c)

[c]ivil

liability

is

expressly imposed upon the employee by a section of the Revised
Code.”

O.R.C. § 2744.03(A)(6)(a)-(c).

The

Court

concludes

that

the

City

of

Cincinnati,

and

Officer O’Brien in his official capacity, is immune from suit.
The events that occurred to Plaintiff JoAnn Snyder were born of
57

an

employee

of

“governmental”

a

political

function,

O.R.C. § 2744.02(A)(1).

the

subdivision

provision

of

performing

police

a

services.

No statutory exceptions to immunity

would appear to apply in this case, see O.R.C. § 2744.02(B)(1)(5), and Plaintiff identifies none.

Even if an exception did

apply, immunity would be reinstated.

O’Brien’s choice to seek a

warrant for Plaintiff’s arrest clearly was within his discretion
to carry out the enforcement powers of his position as a police
officer.

See O.R.C. § 2744.03(A)(3) (“The political subdivision

is immune from liability if the action or failure to act by the
employee involved that gave rise to the claim of liability was
within the discretion of the employee with respect to . . .
enforcement powers by virtue of the duties and responsibilities
of the office or position of the employee.”)
We conclude also that Officer O’Brien is immune from suit
in

his

individual

capacity

as

well.

His

choice

to

seek

a

warrant for Plaintiff’s arrest clearly was within the scope of
his official responsibilities.

He reasonably relied upon the

investigative details compiled by FBI Special Agent Giordano.
We already have ruled that probable cause supported issuance of
the warrant.

That the FBI mistakenly identified Plaintiff JoAnn

Snyder as the accomplice does not render O’Brien’s actions to be
malicious,

indicative

Therefore,

the

motion

of
to

bad

faith,

dismiss
58

or

wanton

Plaintiff

or

JoAnn’s

reckless.
Snyder’s

claim

for

retention

negligent
and

Cincinnati

supervision

alone

imprisonment
prosecution

hiring,

and

(Claim

her

claims
assault

Seven),

to

Four)

Five),

(Claim
(Claim

failure

abuse

of

train,

against

for

the

false

(Claim

negligent
City

arrest

Six),

process

of
and

malicious

(Claim

Eight),

negligence (Claim Nine), negligent and/or intentional infliction
of emotional distress (Claim Ten) and punitive damages (Claim
Twelve) against it and Officer O’Brien (in his official and
individual

capacities)

is

GRANTED

under

Rule

12(b)(6).

Similarly, the motion to dismiss Plaintiff Larry Snyder’s claims
for

negligent

distress

and/or

(Claim

Ten),

intentional
loss

of

infliction

consortium

of

(Claim

emotional

Eleven)

and

punitive damages (Claim Twelve) against Defendant the City of
Cincinnati and Officer O’Brien (in his official and individual
capacities) is GRANTED under Rule 12(b)(6).

VI.

Conclusion

In summary, the Court finds all three pending motions to
dismiss

to

Defendant

be

the

well-taken.
United

States

Thus,
of

the

Court

America’s

hereby

Motion

to

GRANTS
Dismiss

Claims of Plaintiff Jo Ann Snyder (doc. 11), Defendant Special
Agent

Chris

Giordano’s

Motion

to

Dismiss

(doc.

12),

and

Defendants the City of Cincinnati and Officer Jason O’Brien’s
Motion to Dismiss (doc. 16).

Accordingly, the Court DISMISSES
59

Plaintiff

JoAnn

Snyder’s

claims

against

Defendant

the

United

States of America (Claims Four through Six and Nine through
Twelve), against Defendant Special Agent Chris Giordano (Claims
One through Three and Twelve), against Defendant the City of
Cincinnati (Claims One through Twelve), and against Defendant
Officer Jason O’Brien (Claims One through Three and Five through
Twelve),

as

Defendants

well

the

as

City

Plaintiff
of

Larry

Cincinnati

(Claims Ten through Twelve).

Snyder’s

and

Officer

claims

against

Jason

O’Brien

As all pending motions have been

decided and all claims against Defendants dismissed, the Court
ORDERS this case CLOSED on its docket.
SO ORDERED.

Dated:

January 7, 2014

s/S. Arthur Spiegel_______________
S. Arthur Spiegel
United States Senior District Judge

60