Andwan v. Greenhills, Village of et al

Filing 219

REPORT AND RECOMMENDATIONS re 199 MOTION for Summary Judgment by Defendant Gregory F Lester, 200 MOTION for Summary Judgment filed by Defendants Greenhills, Village of, Andrew D. Moore. IT IS RECOMMENDED THAT Defendants' motions for summ ary judgment on all claims 199 200 be GRANTED, and that this case be dismissed. Objections to R&R due by 9/5/2017. Signed by Magistrate Judge Stephanie K. Bowman on 8/21/2017. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
PATRICIA A. ANDWAN,
Plaintiff,

Case No. 1:13-cv-624
Barrett, J.
Bowman, M.J.

v.

VILLAGE OF GREENHILLS, et al.,
Defendants.

REPORT AND RECOMMENDATION
On September 9, 2013, initially proceeding through counsel, Plaintiff Patricia
Andwan paid the requisite filing fee and filed this civil rights suit against the Village of
Greenhills and related individual defendants. Because Plaintiff now proceeds pro se, 1
the case has been referred to the undersigned magistrate judge for all pretrial
proceedings, including for a Report and Recommendation (“R&R”) on any dispositive
motions. Currently pending are two separate motions for summary judgment filed by
three remaining Defendants. For the reasons that follow, the undersigned recommends
that those motions be GRANTED.
I.

Background

Plaintiff Patricia Andwan is a resident of the Village of Greenhills (the Village),
located in Hamilton County, Ohio. The Village employs its own police force, including
Defendant Police Officer Andrew D. Moore. Officer Moore began employment with the
1

Plaintiff proceeded pro se for a period of time after her first attorneys withdrew, but subsequently
retained new counsel. Plaintiff’s second retained counsel filed a second amended complaint on her
behalf on January 26, 2015. Plaintiff later fired that attorney, but the Court denied her subsequent
attempts to further amend her complaint or to appoint new counsel on her behalf. Thus, Plaintiff has
continued to proceed pro se on her second amended complaint since May 7, 2015. (Doc. 121).

1

Village on July 11, 2007, and began working as a full-time patrol officer on August 11,
2008.

Defendant Gregory Lester is a civilian contractor for the Village, who in 2011

was engaged in tree-cutting operations for the Village. 2
Plaintiff’s second amended complaint details a long history of acrimony between
Ms. Andwan, Village officials, and its police force. She alleges that she is a former
Village employee who last worked as a property manager for the Village in 2007, 3 and
who has run for various political offices since 2007. 4 While Plaintiff maintains that the
detailed history of her adverse relationship with the Village, its administration, and/or its
police force is relevant to demonstrate the Defendants’ motivation, 5 the claims in her

2

An earlier rendition of Plaintiff’s complaint (Doc. 26) identified the Defendant as “Gregory F. Lester, d/b/a
Gregory Forrest Lester, Inc.” Although the remaining second amended complaint identifies the Defendant
only individually as a “civilian contractor…who was engaged in tree cutting operations,” (Doc. 103 at ¶3),
Plaintiff testified to her understanding that the second amended complaint was intended to plead a cause
of action against both Mr. Lester and his company. (Andwan Deposition, Volume I, Doc. 208 at 28-30).
Therefore, Defendant’s motion for summary judgment seeks judgment on behalf of both Gregory F.
Lester individually and “d/b/a Gregory Forrest Lester, Inc.” (Doc. 199).
3
Plaintiff testified in her deposition that whether she was an actual employee of the Village has “been
quibbled about” and is “questionable.” (Doc. 208 at 18-19).
4
Plaintiff’s original complaint alleged that in September 2007, she filed candidacy papers allowing her to
run as a write-in candidate for Village Council. (Doc. 1 at ¶ 7). In April 2009, she filed papers to run for
mayor of the Village. (Doc 1 at ¶ 20). On April 28, 2011, she filed again to run for Village Council. (Doc.
1 at ¶ 26). The instant lawsuit is apparently the second civil lawsuit filed by Plaintiff against Village
officials. In March 2010, she filed a civil rights action against the Village and several officials, claiming
that they violated her First Amendment rights by bringing a criminal prosecution that was later dismissed.
In her initial complaint, Plaintiff alleged that the case settled in June 2010, with the Village paying Plaintiff
a sum of money for damages and attorney’s fees. (Doc. 1 at ¶24; see also Doc. 1-13).
5
Plaintiff has attached a number of exhibits to her memorandum in opposition to the pending motions for
summary judgment that bear witness to her long-running disputes. Exhibit J purports to be a letter dated
9/18/08 that reflects the Village engaged an attorney to serve as special counsel in order to “advise the
Village in connection with a harassment investigation” regarding Plaintiff, based upon her conduct at that
time. The same exhibit was attached to Plaintiff’s original complaint. (See Doc. 1-10). Exhibit I, dated
9/5/08, purports to be a letter from another law firm to the Hamilton County Prosecutor’s Office,
expressing the view that Plaintiff’s behavior “could be defined as Telecommunications Harassment”
based upon the appearance that the volume of email was sent “to harass the recipients,” and/or that her
behavior could potentially be in violation of “Obstructing Official Business.” Exhibit H reflects a
memorandum dated 4/3/09, purportedly from the Village Municipal Manager to “All Village Staff and
Volunteers” re “Policy Pertaining to Pat Andwan Communications.” The policy references interactions
between Plaintiff and members of Village Council, the Board of Zoning Appeals, the Planning
Commission, and staff, and requests that all communications be forwarded to Ms. Berry and the Village
Law Director, without providing a substantive response other than a request that Plaintiff not send further
email to that staff member. The policy recommends that Village staff members “refrain from engaging in
Village-related oral communications” and “exercise caution when communicating orally with” Plaintiff.

2

second amended complaint are limited to the events of November 2, 2011, when
Plaintiff was observed by Defendant Lester photographing tree removal operations near
her residence.
The most relevant event prior to November 2, 2011 was a related incident that
occurred on or about September 1, 2011. (Doc. 103 at ¶13). During that event, Lester
and his crew were directed by the Village to trim a dead tree, in response to a request
made by Plaintiff herself to the Village. (Andwan Deposition, Volume I, Doc. 208 at 54).
Though physically located in an adjacent yard, the tree partly encroached upon the
townhouse property in which Plaintiff resides. Plaintiff testified that was the first time
that she recognized Lester or his company, since, prior to that date, there were multiple
“tree trimmers all over the place from time to time.” (Doc. 208 at 42). She went outside
to observe the tree-cutting from the back of her property. During the operations, debris
fell onto her property. Lester called Village police to complain about Plaintiff’s proximity,
and Defendant Moore responded. Moore asked Plaintiff to return to the inside of her
home based upon safety concerns. Taking pictures of Moore, Plaintiff refused. Moore
issued her a warning and left. Plaintiff later asked Lester and his crew to clean up the
debris on her property, which they did. (Doc. 208 at 61).
On November 2, 2011, Lester and his crew returned to the street on which
Plaintiff resides, albeit at a further distance down the street from Plaintiff’s home.
Plaintiff again watched the crew from a nearby yard (not her own), and during a lull in
the tree-trimming activity, walked over to the job site and took photographs of the tree
trunk. Observing Plaintiff taking photos in close proximity to the job site, Defendant
Lester again contacted Village police, and Defendant Officer Moore arrived around 9:50

3

a.m.

Moore instructed Plaintiff to leave the area based on safety concerns, and

threatened to arrest her if she did not comply. 6 Plaintiff alleges that he briefly “shoved”
her by placing his hands on her chest, but that she did not fall and was not injured from
that initial fleeting contact. (Andwan Dep., Vol. III, Doc. 210 at 388). As soon as he
touched her, she began screaming at the top of her lungs “Get your hands off of me.”
(Andwan Dep., Vol. II, Doc. 209 at 269, 288).
Plaintiff alleges that after Moore placed his hands on her, she decided to walk
away and either told Moore “I’m leaving” or “I’m going back here,” or “you know…just
made it apparent that when I turned I was going to go back between that area.” (Id. at
288-289). Turning her back to Moore, she took no more than one or two steps when in
response, Moore seized her by placing his hands on the top of her shoulders from
behind, 7 causing her to stop. Because she was walking forward at the time, she alleges
the abrupt stop momentarily lifted her off the ground, for a half second. (Doc. 210 at
389-392). She testified that as she was being lifted, Moore’s grip on the top of her left
shoulder/coat came loose and she heard a “rip” from her shoulder and felt “excruciating
pain,” ending up kneeling on the ground. (Id. at 390, 392). She testified that she
suffered an injury to her shoulder in that moment. (Id. at 394). While she “sagged
down” after Moore lost his grip on her left shoulder, Moore grabbed her left arm or wrist
and twisted it up behind her back in order to handcuff her. (Id. at 393, 395). He told her
she was under arrest as he did so. The entire sequence of the arrest (from seizure to
6

Plaintiff testified that she could not hear the officer’s words when he first appeared due to the noise of the
tree equipment. (Doc. 209 at 267-268). She testified that all she heard him say was “you have to move or
I’m going to arrest you.” (Id. at 268). However, Plaintiff’s testimony clearly implies understanding that
Moore was directing her to move for her own safety, as she also testified that when she initially refused to
move, she told him “I’m not in any danger here.” (Id.)
7
Plaintiff unequivocally testified that Moore did not grab under or around her arms or body, but stopped
her by grabbing only the top of her shoulders and/or the top fabric of her coat.

4

trying to cuff her) was one continuous motion by Moore, and did not take more than one
or two seconds. (Id. at 395-396). Plaintiff continued screaming throughout. (Id. at 395).
As Plaintiff resisted the application of the second handcuff by Moore, he “shoved”
her towards his adjacent patrol car and “pinned” her face down, while she continued to
struggle. 8 He did not complete the action of cuffing Plaintiff but instead simply held her
in place while he called on his radio for backup. While he awaited the arrival of backup,
he did not lean in against her as he did initially when placing her against his vehicle, but
loosened his grip. (Doc. 210 at 401). Numerous police responded within 2-3 minutes,
and a second officer assisted Moore in cuffing Plaintiff’s still-free hand.
Plaintiff alleges that, after she was cuffed, Moore “shoved” her in the back of his
squad car. She complains that it “certainly wouldn’t have been what a chauffeur would
have done to escort someone carefully and to assist an elderly to get into a car,” but
she does not claim any additional injury other than continued pain from the shoulder
injury experienced within the first two seconds of her arrest. (Doc. 210 at 404-405).
Nevertheless, she testified that because Moore failed to secure her with a seatbelt, she
fell over and experienced further pain to her injured shoulder, because she slid around
as he drove her to the station. (Doc. 210 at 401-402). Plaintiff testified that after her
initial injury, her shoulder and arm were “aching” in the police car “but it wasn’t this
excruciating, sharp, intensity….” (Id. at 398-399). In response to Defendants’ motions
for summary judgment, she included a form that purports to be Officer Moore’s “Booking
8

Plaintiff testified that she was struggling only because she was holding her glasses and needed to put
them away. (Doc. 210 at 401). However, she also testified that she was holding her camera at the time
and was able to take a picture of her arrest with her right hand during the time period when Officer Moore
had her left arm behind her back and cuffed. (Doc. 209 at 348). Somewhat inconsistently, Plaintiff
testified that in the moment prior to her arrest, she was walking away and “wasn’t carrying anything in my
hands.” (Doc. 210 at 394). The reason that Plaintiff was resisting being cuffed is not material to
determine whether Defendant Moore violated Fourth Amendment standards.

5

Officer Questions” on the date of her arrest, including his notation of “arm and wrist
aching” to the question “Does Subject Have Any Health Problems, Illnesses, Injuries, or
Mental Disorders?” (Doc. 213-1 at 5, Plaintiff’s Exhibit C).
Although her current complaint alleges she suffered bruises, “loss of wrist and
arm movement, a torn rotator cuff and loss of muscle turning range in her neck…which
requires surgery to resolve,” she conceded that she did not experienced any bruising,
and she has produced no evidence of a rotator cuff tear, loss of muscle turning range,
or surgical recommendation that would either document the 2011 shoulder injury or link
any subsequent record of injury to the November 2, 2011 incident. (Doc. 209 at 359).
The only reference to surgery in Plaintiff’s deposition testimony was that, during a visit
with friends over the 2011 Christmas holiday, her friends theorized that she might have
a rotator cuff injury that could require surgery, and suggested that she see a doctor. (Id.
at 355-356).

Plaintiff alleges additional damages attributable to “emotional trauma

including an anxiety disorder” based upon “the Defendants[‘] previous law enforcement
harassment and the excessive force incident.” (Doc. 103 at ¶21).
Plaintiff was transported to the Hamilton County Justice Center, where she was
released at approximately 5 or 6 pm the same day. (Doc. 208 at 195). Justice Center
records do not indicate any complaints of pain on her intake form. She did not seek
medical treatment for her alleged shoulder injury in the weeks following her release.
Plaintiff was initially charged with disorderly conduct and resisting arrest, but the
charge of resisting arrest was later dismissed. 9 Plaintiff was subsequently prosecuted
for disorderly conduct, but her prosecutions terminated with acquittals on May 23, 2012
9

The record before the undersigned is not clear, but Plaintiff testified that the dismissal of the resisting
arrest charge occurred after an in-chambers meeting between the prosecutor, her appointed defense
counsel, and the state court judge. (Doc. 209 at 318-319).

6

and on September 19, 2012, respectively.
In her second amended complaint, Plaintiff articulates three claims against
Moore (in both his official and individual capacities) and the Village (jointly referred to
herein as “the Village Defendants”). In her first two claims, she alleges that both are
liable for Moore’s use of excessive force in violation of the Fourth Amendment of the
U.S. Constitution, and for the deprivation of her right to be free of unreasonable search
and seizure under the Fourth Amendment. Her complaint also alleges assault and
battery in violation of state law. (Doc. 103, Counts One and Two).
Plaintiff further alleges that the Village “ratified” Moore’s conduct and “as a matter
of business policy or deliberate indifference” did not properly train Moore, or
alternatively, has an “official business policy of not supervising Moore.” (Doc. 103 at
¶26). Plaintiff alleges that the Village and Moore “were…motivated by a malicious intent
to physically retaliate against the Plaintiff” based upon her prior First Amendment
activity, which was critical of the Village and its police force. (Id. at ¶27). In a separately
stated third claim against Moore and the Village, Plaintiff alleges that the Defendants
inflicted “emotional distress requiring medical treatment” upon Plaintiff by “tormenting
and mistreating her at public meetings…during and after [the] excessive force arrest….”
(Count Three).
“Count Four” of Plaintiff’s second amended complaint contains allegations and
two additional state law claims against Defendant Lester, pleaded in the alternative.
Plaintiff alleges generally that Lester has “engaged in a pattern and practice of making
false and petty police reports about the Plaintiff allegedly interfering with his government
financed tree cutting business….”

(Doc. 103 at ¶37).

7

On November 2, 2011 in

particular, she alleges that Lester called police to falsely report that Plaintiff was
interfering with his tree cutting operations, leading to Plaintiff’s subsequent arrest. She
alleges that Lester “did not have a good faith basis to accuse the Plaintiff of any crime
and was motivated by a malicious intent to retaliate and find a way to get the Plaintiff
arrested and punished given the Plaintiff had made numerous complaints about his
business operations to Village council on prior dates.” (Id. at ¶40). She alleges that
Lester intimidated one of his employees “to swear out a false police report,” which led to
her “malicious prosecution.” (Id.)

Plaintiff further claims that Lester “has committed an

abuse of process” because his complaint, even if supported by probable cause, was
made “with an ulterior motive to pervert…the justice system …to use a petty criminal
law complaint to protect a publicly financed business from criticism by a tax payer….”
(Count Four, Doc. 103 at ¶42).
On March 11, 2015, the two Village Defendants moved for partial judgment on
Plaintiff’s state law assault and battery claim, as barred by the statute of limitations, and
on grounds that Plaintiff’s intentional infliction of emotional distress claim could not be
stated against the Village as a governmental entity. (Doc. 110). This Court granted that
motion. (Doc. 114). Therefore, only Plaintiff’s §1983 claims against the Village and
Officer Moore remain, along with Plaintiff’s intentional infliction of emotional distress
claim against Officer Moore alone, 10 and her two state law claims against Defendant
Lester.
The Village Defendants and Defendant Lester have filed separate motions for
10

Plaintiff refuses to concede the validity of the second amended complaint, which she maintains was
negligently filed by her former counsel, and has continually sought to reinstate an earlier amended
version of her complaint that she filed pro se. For the reasons originally stated in the undersigned’s
Memorandum Order of April 7, 2016, and reiterated in several orders thereafter, Plaintiff’s formal and
informal motions to reinstate the prior complaint have been denied. (See Doc. 157).

8

summary judgment on all remaining claims. (Docs. 199, 200). Plaintiff failed to file a
fully responsive memorandum in opposition, despite this Court’s repeated warnings to
Plaintiff that she was required to do so. However, on June 9, 2017, Plaintiff filed a “pro
se objection to Magistrate [Judge] Bowman’s Order (Doc. 205)…and Stopgap
Response Brief” which has been fully considered by the undersigned, including the 138
pages of exhibits attached by Plaintiff to her “stopgap” response. (Doc. 213).
Defendants object to the consideration of those exhibits on grounds that – other than
the Defendants’ discovery responses - the exhibits have not been authenticated, and
many contain Plaintiff’s handwritten notes.
Rule 56(c) requires parties to cite to particular materials in the record to support
any fact. “A party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.” Rule 56(c)(2). The
undersigned recognizes as well-founded Defendants’ objections that none of Plaintiff’s
exhibits are properly authenticated and that they are inadmissible in their present form.
However, the undersigned also recognizes that the Defendants do not contend that any
of the exhibits have been falsified.

To that extent, the undersigned believes that the

exhibits that have been considered could be properly authenticated, and could be
presented in an admissible form notwithstanding their current inadmissible form. 11 The
undersigned also has reviewed and considered Plaintiff’s deposition testimony as a
whole. See Rule 56(c)(3)(permitting a court to consider not only cited materials, but all
materials in the record).
In addition to her “stopgap” response, Plaintiff has filed a motion seeking another

11

While all exhibits have been considered, the undersigned has declined to consider Plaintiff’s
handwritten notes on the exhibits.

9

“discovery status hearing,” this time with presiding District Judge Michael R. Barrett.
That motion has been denied by separate Order filed herewith.
II.

Analysis

A. Standard of Review
In a motion for summary judgment, a court must view “the facts and any
inferences that can be drawn from those facts - in the light most favorable to the
nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th
Cir.2007) (internal quotation marks omitted). “Summary judgment is only appropriate ‘if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.’” Id. (quoting Fed. R.
Civ. P. 56(c)) (internal quotation marks omitted). “Weighing of the evidence or making
credibility determinations are prohibited at summary judgment - rather, all facts must be
viewed in the light most favorable to the non-moving party.” Id.
The requirement that facts be construed in the light most favorable to the
Plaintiff, however, does not mean that the court must find a factual dispute where record
evidence contradicts Plaintiff’s wholly unsupported allegations. After a moving party
has carried its initial burden of showing that no genuine issues of material fact remain in
dispute, the burden shifts to the non-moving party to present specific facts
demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility’ of a factual dispute is not
enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v.
Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). In order to defeat a motion for

10

summary judgment, the non-moving party must present probative evidence that
supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
The court determines whether the evidence requires submission to a jury or whether
one party must prevail as a matter of law because the issue is so one-sided. Id. at 25152. Although reasonable inferences must be drawn in favor of the opposing party, see
Matsushita, 475 U.S. at 587, inferences are not to be drawn out of thin air.

To

demonstrate a genuine issue, the opposing party “must do more than simply show that
there is some metaphysical doubt as to the material facts .... Where the record taken as
a whole could not lead a rational trier of fact to find for the non-moving party, there is no
‘genuine issue for trial.’” Id., 475 U.S. at 586-587 (citation omitted).
The undersigned begins with the analysis of Defendant Lester’s motion for
summary judgment on the two state law claims filed against him, before turning to the
motion filed by the Village Defendants.
B. Defendant Lester’s Motion for Summary Judgment
1. Malicious Prosecution Claim
Defendant Lester argues first that Plaintiff’s malicious prosecution claim is barred
by Ohio’s one-year statute of limitations.

Under Ohio Revised Code § 2305.11, a

malicious prosecution claim must be brought “within one year after the cause of action
accrued.”

Here, Plaintiff’s claim accrued when she won acquittal on the underlying

disorderly conduct charges, on May 23, 2012 and on September 19, 2012. However,
Plaintiff did not identify Lester (or his business) as a Defendant until she filed her first
amended complaint on October 27, 2014, more than two years after any malicious
prosecution claim arose. Therefore, her malicious prosecution claim is time-barred.

11

In her response in opposition to Defendant Lester’s motion, Plaintiff argues that
because her initial complaint through counsel was filed on September 9, 2013 (within
one year of the 9/19/12 acquittal), her amended complaint should “relate back to that
date.” (Doc. 213 at 4).

Whether new claims asserted against newly identified

defendants “relate back” to the date that the original complaint was filed is governed by
Rule 15(c), Fed. R. Civ. P. As a matter of law under Rule 15(c), and for the reasons
stated in Defendant Lester’s reply memorandum, Plaintiff’s claims against Lester clearly
do not relate back to her original complaint.
The original complaint named only the Village of Greenhills, Thomas Doyle,
Andrew Moore, Robert Dean and Anne Ward as Defendants. (Doc. 1).

The vast

majority of that complaint related to conduct by the Village and its officials dating from
2007-2012. The only reference to the events of November 2, 2011 referred to a “private
contractor engaged by Defendant Village” without otherwise identifying the contractor as
Lester. (Doc. 1 at ¶32). Although the complaint included a malicious prosecution claim
against Defendant Moore based upon the November 2, 2011 incident, no reasonable
person would have construed the allegations as alleging a claim against the unidentified
“private contractor.” And, while Plaintiff’s original complaint also contained two “abuse
of process” claims, those claims also were clearly directed to the “ongoing conflict with
numerous officials of Defendant Village for many years prior to the above-described
events of May and June, 2011 and of November, 2011.” (Doc. 1 at ¶55).
Plaintiff was aware of the alleged conduct of Lester at the time of the criminal
hearings. (Doc. 213 at 5, citing the “conflicting stories” of Lester during her 2012
criminal trials). Therefore, she clearly was aware of all facts necessary to make out her

12

claims by not later than September 19, 2012.

Defendant Lester did not receive notice

of the original complaint, was not named in the original complaint, and was not even
identified by name.

Based upon the pleadings, the undersigned finds no basis to

“relate back” to September 9, 2013, Plaintiff’s newly asserted pro se claims against
Defendant Lester in the October 27, 2014 version of her amended complaint. See In re
Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1449 (6th Cir. 1991) (“[T]he
precedent of this circuit clearly holds that ‘an amendment which adds a new party
creates a new cause of action and there is no relation back to the original filing for
purposes of limitations.’” (internal citation omitted)); accord, Lester v. Wow Car Co.,
Ltd., 675 Fed. Appx. 588, 592-593 (6th Cir. 2017).
2. Abuse of Process
Unlike Plaintiff’s time-barred malicious prosecution claim, her abuse of process
claim is governed by a longer statute of limitations, and is not time-barred. 12 The tort of
malicious prosecution provides a remedy when a proceeding is instituted without
probable cause. By contrast, the separate tort of abuse of process is available “when
process is used to accomplish an improper ulterior purpose,” even though probable
cause exists. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 626 N.E.2d at 118, 68
Ohio St.3d at 298. “Abuse of process does not lie for the wrongful bringing of an action,
but [only] for the improper use, or ‘abuse,’ of process.” Kremer v. Cox, 114 Ohio App.3d

12

In Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 626 N.E.2d 115, 118, 68 Ohio St.3d 294, 298
(Ohio 1994), the Ohio Supreme Court first recognized the tort of abuse of process and determined that a
four-year statute of limitations generally applies to such a claim. However, in Read v. Fairview Park, 146
Ohio App.3d 15, 18, 764 N.E.2d 1079, 1081 (Ohio Ct. App. 2001), the court held that, unlike a malicious
prosecution claim that accrues at the conclusion of a criminal proceeding, an abuse-of-process claim
accrues on the date of the allegedly tortious conduct. In addition, the Read court held that the statute of
limitations for abuse-of-process claims against political subdivisions and their employees is two years,
rather than the general four-year statute applicable to the same tort claim filed against non-governmental
defendants. Accord, Davis v. Clark County Bd. Of Com’rs, 994 N.E.2d 905 (Ohio Ct. App. 2013).

13

41, 51, 652 N.E.2d 1006 (Ohio Ct. App. 9th Dist. 1996) (internal quotation marks and
citation omitted).

The Ohio Supreme Court repeatedly has explained that when

probable cause is lacking, an abuse of process claim cannot lie, and the plaintiff must
instead proceed under malicious prosecution.
We hold that the three elements of the tort of abuse of process are: (1)
that a legal proceeding has been set in motion in proper form and with
probable cause; (2) that the proceeding has been perverted to attempt to
accomplish an ulterior purpose for which it was not designed; and (3) that
direct damage has resulted from the wrongful use of process.
Even though the tort of malicious prosecution and the tort of abuse of
process have different elements, in some situations the same facts which
may constitute an abuse of process may also support an action for
malicious prosecution. In that case, a complaint could allege both causes
of action, in separate counts. In such a situation, a consideration of
whether probable cause was present to bring the underlying litigation
would be the key to determining under which tort theory the action should
proceed.
Id. (footnotes omitted, emphasis added); see also Voyticky v. Village of Timberlake,
Ohio, 412 F.3d 669, 677 (6th Cir. 2005) (citing Yaklevich, L.P.A., supra).
The Ohio courts have further explained that in an abuse of process case,
“[t]he improper purpose usually takes the form of coercion to obtain a
collateral advantage, not properly involved in the proceeding itself, such
as the surrender of property or the payment of money, by the use of the
process as a threat or a club.” Prosser & Keeton on Torts (5 Ed.1984)
898, Section 121. Simply, abuse of process occurs where someone
attempts to achieve through use of the court that which the court is itself
powerless to order.
Robb v. Chagrin Lagoons Yacht Club, Inc., 662 N.E.2d 9, 14, 75 Ohio St.3d 264, 271
(Ohio 1996). However, there is no liability where the defendant has done nothing more
than carry out the process to its authorized conclusion, even if he did so with bad
intentions. Beamer v. NETCO Inc., 411 F. Supp.2d 882, 890 (S.D. Ohio 2005).
As explained above, malicious prosecution and abuse of process claims may be
14

pleaded in the alternative, as Plaintiff did in this case. (Doc. 103 at ¶¶41-42). However,
it is noteworthy that Plaintiff’s second amended complaint alleges throughout that
Defendant Lester’s wrongdoing was the making of “false and petty police reports about
the Plaintiff interfering with his government financed tree cutting business…every time
she was observed watching him cut trees down in her Greenhills neighborhood.” (Doc.
103 at ¶37, emphasis added). Plaintiff repeatedly alleges that Lester called Village
police “to hear his false charge that the Plaintiff was interfering with his tree cutting
operations when in fact there was no evidence of interference taking place….,” and that
his “false charge directly resulted” in Plaintiff’s arrest by Moore. (Id. at ¶¶ 38-39). She
alleges that Lester “did not have a good faith basis to accuse the Plaintiff of any crime
and was motivated by a malicious intent to retaliate…given the Plaintiff had made
numerous complaints about his business operations to Village council on prior dates.”
(Id. at ¶40, emphasis added). She also alleges that Lester “intimidat[ed] one of his
employees to swear out a false police report.” (Id.). Thus, throughout her complaint,
Plaintiff repeatedly emphasizes that Lester had no basis at all (i.e., a lack of probable
cause) to contact police or to cause to have her arrested for allegedly interfering with his
tree cutting operations. (See also Doc. 103 at ¶¶14, 16-17). Only in her final allegation
does she throw in a cursory alternative allegation:

“In the alternative, Lester has

committed an abuse of process in that if his complaint about the Plaintiff is deemed
motivated by probable cause it was with an ulterior motive to pervert (change something
good into something evil) the justice system to yield a result for which it was not meant,
to wit: to use a petty criminal law complaint to protect a publicly financed business from
criticism by a tax payer who pays for Lester’s tree cutting services.”

15

(Id. at ¶42).

Plaintiff testified that Lester and his company had obtained a contract with the Village in
August 2011, to provide all tree-cutting services to the Village for a period of time that
ultimately lasted until 2014. 13 (Doc. 208 at 130-134, 150).
Defendant Lester argues that he is entitled to judgment because, in addition to
the allegations of her second amended complaint, Plaintiff’s own testimony confirms
that she is alleging that probable cause did not exist to initiate her arrest and criminal
proceeding. I agree.
Ohio courts have continued to maintain clear distinctions between an abuse of
process claim and a malicious prosecution claim.
Abuse
of
process
differs
from
malicious
prosecution
in
that abuse of process connotes the use of process properly initiated for
improper purposes, while malicious prosecution is the malicious initiation
of a lawsuit that one has no reasonable chance of winning. Robb v.
Chagrin Lagoons Yacht Club, Inc. (1996), 75 Ohio St.3d 264, 271, 662
N.E.2d 9.
Mansour v. Croushore, 958 N.E.2d 580, 583, 194 Ohio App.3d 819, 823 at ¶ 12 (Ohio
Ct. App. 2011) (emphasis added).
Plaintiff has repeatedly testified that the criminal charges filed against her for
disorderly conduct on November 2, 2011 were improper from the outset, and were
completely without probable cause or reasonable foundation, motivated solely by the
Village and/or its police force working in concert with Defendant Lester:
Q: Yeah, let’s do that. So you believe that even – in the September 1st,
2011 incident, you believe that was motivated by some direct
understanding with the Village of Greenhills that that was what they
wanted them [Lester] to be doing?
A: Oh, absolutely
13

Plaintiff testified that the initial tree services contract was for a lengthy period. While not entirely clear,
Plaintiff’s claim appears to have been based upon a theory that Lester’s motivation on November 2, 2011
was either to prevent cancellation of the existing contract, and/or to ensure future renewal of that contract.

16

.
Q: Okay. And then again on November 2nd?
A: Absolutely.
Q: And in that instance in particular, you believe the whole thing was a
setup in advance?
A: Absolutely.
Q: Okay. And you believe that both of those instances were totally
unfounded?
A: Absolutely.
Q: And there was no –
A: And the judge – the judge found that also.
Q: There was no basis for them to have any interest in you whatsoever?
A: Absolutely.
Q: So if anyone were to say, Hey, listen, this started out – they – they had
some basis, they were really looking out for your safety but later on it
turned into something else, you wouldn’t agree with that?
A: No. I don’t think anyone in their right mind would.
Q: So you believe it was totally planned and –
A: Malicious conspiracy.
Q: Right from the very beginning?
A: Absolutely.
(Doc. 208 at 185:16- 186:21; see also id. at 120-122).

In short, Plaintiff has testified

throughout this case that Lester had no basis for contacting police, and that the criminal
charges filed against her were initiated without any basis at all. (Doc. 208 at 182, “[T]he
fact that he called the police was just totally unfounded”; see also Doc. 210 at 433-434,
testifying that Lester made a false witness statement and placed a call to the police that
17

was false and fraudulent from the outset). She further testified that Lester and his
employees did not know “exactly what [Officer] Mr. Moore was going to do, that they
really knew that he was going to attack me….”

(Doc. 208 at 155; id. at 156-157,

testifying that Lester was not “pulling the strings,” and did not have anything to do with
Defendant Moore’s use of excessive force, but instead “facilitated the call and allowed
the course of events to happen”).
Based upon Plaintiff’s testimony that denies that the November 2, 2011 charges
constituted a legal proceeding that was “set in motion in proper form and with probable
cause;” Lester is entitled to judgment as a matter of law.

See Turner v. Lerner,

Sampson & Rothfuss, 776 F.Supp.2d 498, 507-08 (N.D. Ohio 2011) (where plaintiffs’
own allegations claimed that defendant law firm lacked probable cause to initiate
foreclosure actions, they sought to prove the opposite of an essential element of abuse
of process claim); accord Cox v. Oliver, 66 N.E.3d 1101, 1104 (Ohio Ct. App. 2016)
(where amended complaint alleged that defendant unlawfully pursued criminal
prosecution and that second defendant aided and supported that effort, plaintiff’s
allegation that prosecution was commenced without probable cause negated the
availability of an abuse of process claim against either defendant).
Plaintiff’s “stopgap response” limits argument in opposition to Defendant Lester’s
motion for summary judgment to a claim that her malicious prosecution claim should
“relate back” to the filing of her original complaint for statute of limitations purposes.
She does not point to any specific evidence or make any argument to counter the
Defendant’s arguments concerning her abuse of process claim, nor does she point to
any evidence that would support her allegation that Lester had a financial motive to gain

18

through the abuse of process that he could not otherwise achieve. Lester is therefore
entitled to summary judgment.
C. The Village Defendants’ Motion for Summary Judgment
Turning next to Plaintiff’s claims against the Village Defendants, the undersigned
concludes that those Defendants are also entitled to judgment as a matter of law.
Plaintiff’s complaint alleges that both the Village and Officer Moore are liable for
Moore’s use of excessive force in violation of the Fourth Amendment of the U.S.
Constitution, and for the deprivation of her rights to be free of unreasonable search and
seizure under the Fourth Amendment.
To reiterate, Plaintiff alleges that the Village “ratified” Moore’s conduct and “as a
matter of business policy or deliberate indifference” did not properly train Moore, or
alternatively, has an “official business policy of not supervising Moore.” (Doc. 103 at
¶26). She alleges that the Village and Moore “were…motivated by a malicious intent to
physically retaliate against the Plaintiff” based upon her prior First Amendment activity,
which was critical of the Village and its police force. (Id. at ¶27). In a separately stated
third claim that this Court has allowed only against Moore, Plaintiff alleges that he
inflicted “emotional distress requiring medical treatment” upon Plaintiff by “tormenting
and mistreating her at public meetings…during and after [the] excessive force arrest….”
(Count Three).
1. Officer Moore’s Qualified Immunity Claim
Defendant Moore first argues that he is entitled to qualified immunity in his
individual capacity for Plaintiff’s Fourth Amendment claims. The undersigned agrees.
The purpose of qualified immunity is to provide governmental officials with the

19

ability “reasonably to anticipate when their conduct may give rise to liability for
damages.” See Anderson v. Creighton, 483 U.S. 635, 646 (1987) (internal quotation
omitted).

Thus, a governmental official performing discretionary functions will be

entitled to qualified immunity unless his or her actions violate “clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

A governmental official is entitled to

immunity if the facts alleged do not make out a violation of a constitutional right, or if the
alleged constitutional right was not clearly established at the time of the defendant’s
alleged misconduct. Pearson v. Callahan, 129 S.Ct. 808 (2009). Qualified immunity
protects “all but the plainly incompetent or those who knowingly violate the law.” Malley
v. Briggs, 475 U.S. 335, 341 (1986).
When a defendant moves for summary judgment based on qualified immunity,
the official must first show that he acted within discretionary authority. Gardenhire v.
Schubert, 205 F.3d 303, 311 (6th Cir. 2000). Once an official makes this showing, the
burden shifts to the plaintiff to prove that the officer violated a right so clearly
established that any reasonable official in that position would have understood it was
unreasonable to engage in the conduct that violated the right. Id. Here, Plaintiff has
made no claim that Defendant was acting outside his authority, so the burden falls on
Plaintiff to overcome the qualified immunity defense.
There is no dispute that the Fourth Amendment right of an individual to be free
from the excessive use of force during an arrest is clearly established. “A claim of
excessive force under the Fourth Amendment requires that a plaintiff demonstrate that a
seizure occurred, and that the force used in effecting the seizure was objectively

20

unreasonable.” Rodriguez v. Passinault, 637 F.3d 675, 680 (6th Cir. 2011). Construing
all disputed facts in Plaintiff’s favor, Defendant Moore is entitled to qualified immunity on
the claims presented because, using the appropriate standard of objective
reasonableness, he did not violate Plaintiff’s rights when he employed a modest amount
of force during the course of her arrest.
The reasonableness of any particular use of force during an arrest must be
judged from the perspective of a reasonable officer on the scene, without the 20/20
vision of hindsight. Graham v. Conner, 490 U.S. 386, 388 (1989). Not every push or
shove, even if later seen as unnecessary, will violate the Fourth Amendment, since
police officers “are often forced to make split second judgment – in circumstances that
are tense, uncertain, and rapidly evolving – concerning the amount of force that is
necessary in a particular situation. Id. at 396-397. In determining whether a use of
force was reasonable, courts are instructed to balance three factors: (1) the severity of
the crime at issue; (2) whether the suspect posed an immediate threat to the safety of
the officers or others, and (3) whether the suspect is actively resisting or attempting to
evade arrest by flight. Graham, 490 U.S. at 396 (citing Tennessee v. Garner, 471 U.S.
1, 8-9 (1985)).
There is no genuine issue of material fact that when Officer Moore responded to
the scene on November 2, 2011, he instructed Plaintiff to move from her position further
away from the ongoing tree-cutting operations. There is also no dispute that Plaintiff
understood Officer Moore’s instruction to her to leave the vicinity, notwithstanding her
testimony that she did not initially hear his precise words due to the noise level of the
tree-cutting operations. Plaintiff’s own words (informing the officer that she was “not in

21

any danger here”) and actions, along with the fact that a similar warning had been
conveyed by Officer Moore two months earlier, illustrate that she understood the
officer’s command. Plaintiff refused to comply with the officer’s instructions, which she
viewed as unreasonable. 14 Instead of complying, she moved a couple of yards away,
remaining in an area that Officer Moore attested that he believed still posed a danger to
Plaintiff’s safety.
Plaintiff admits that she understood the officer had stated his intention to arrest
her if she did not fully comply with his instructions.

She admits that she began

screaming “get your hands off me” when Officer Moore “shoved” her by placing his
hands on her chest, in an action that reflected his intention to physically direct Plaintiff
after she refused to move, a moment prior to her arrest. She testified that rather than
comply, she turned and took one or two steps when she felt Moore’s hands on the top
of her shoulders bringing her to an immediate stop. Whether Plaintiff’s one or two steps
were interpreted by Moore to have been flight or continued non-compliance with his
instructions, a police officer is entitled to use reasonable force when making an arrest.
Marvin v. City of Taylor, 509 F.3d 234 (6th Cir. 2007) (force reasonable despite fact that
very drunk 78 year old man posed little risk to 26 year old 270 pound officer, in part
because intoxicated arrestee’s unpredictability created volatile situation, and resistance
to arrest including refusal to place hands behind his back justified force to complete
handcuffing).
The use of physical force that stopped Plaintiff in her tracks was the placement of
14

Whether the officer’s instructions were in fact unreasonable is not an issue before this Court, just as the
lawfulness of the arrest is not before this Court. Although her original complaint included claims of false
arrest and/or of malicious prosecution against Officer Moore, the second amended complaint limits the
claims against Moore and the Village to excessive force during her arrest, and to the intentional infliction
of emotional distress.

22

Moore’s hands on top of her shoulders, and lasted no more than one or two seconds.
She concedes that Moore informed her that she was under arrest a moment after
seizing her, while he was trying to handcuff her, in one continuous motion. She testified
that she screamed at Moore a moment before she was arrested, and continued
screaming, allegedly due to pain from the shoulder injury sustained when Officer Moore
lost his grip on her left shoulder and she “sagged,” feeling her shoulder “rip.” She
admits she resisted and did not permit him to complete the action of handcuffing her,
that he called for backup while restraining her in place against his cruiser, and that
despite the initial force of securing her against the cruiser (which did not cause bruising
or any other injury), he loosened his hold while he and she stood motionless for 2-3
minutes awaiting assistance.
Active resistance to arrest includes “physically struggling with, threatening or
disobeying officers” and “includes refusing to move your hands for the police to handcuff
you, at least if that inaction is coupled with other acts of defiance.” Radlaff v. Gillispie,
791 F.3d 638, 641 (6th Cir. 2015). Plaintiff’s initial refusal to submit to an order that
Officer Moore believed was lawful preceded her arrest. Once Officer Moore made the
decision to arrest her, she actively resisted the arrest.
The original reason for arrest (disorderly conduct based upon Plaintiff placing
herself in danger from the tree-cutting operations, and refusing to retreat to a safe area
as directed) is clearly a low-level crime that would not justify any significant use of
force. 15

She initially also was charged with resisting arrest but that charge was

15

The basis for the charge is evident from the transcripts of both the May 23, 2013 trial (at which Plaintiff
was initially convicted of disorderly conduct) and the September 2013 retrial (at which Plaintiff won
acquittal on the same charge). Although the state court transcripts attached as Plaintiff’s exhibits are not

23

dismissed prior to trial.

However, regardless of the fact that she was eventually

acquitted (on retrial) of disorderly conduct, the evidence at the time suggested that
Plaintiff was unwilling to comply with the officer’s instructions and would continue to
place herself in an area that the officer believed posed a danger.

Plaintiff’s own

testimony corroborates that the officer’s actions appeared designed to remove her from
a potential place of danger to a place of safety. 16
Although Officer Moore’s age, height and weight are not clear from the record,
Plaintiff testified to her belief that he stands more than 6 feet tall. Plaintiff’s medical
records reflect that at the time of the incident, she was 64 years old, stood 5’ 3” in
height, and weighed approximately 160 pounds. (Doc. 209 at 292; see also Doc. 211-1
at 2-3). It is undisputed that Plaintiff exhibited no intention of complying with Officer
Moore’s instructions or submitting to arrest. Thus, based on the facts presented, it was
objectively reasonable for Officer Moore to employ a modest amount of physical force to
effectuate her arrest, thereby forcibly removing her from any danger posed by her
proximity to the tree-cutting operations. 17 See Bolden v. City of Euclid, 595 Fed. Appx.
464, 471 (6th Cir. 2014). Plaintiff’s argument that the amount of force he chose (placing
his hands on top of her shoulders to abruptly stop her in her tracks) was objectively
unreasonable is not sufficient to overcome the Defendant’s qualified immunity defense.
Plaintiff testified that the placement of his hands on her shoulders to stop her caused
her feet to leave the ground because she was moving, 18 but she also testified that the

authenticated, they have been considered because Defendants do not dispute that they could be
presented in an admissible form.
16
Plaintiff testified that after her arrest while at the Village Police Department, she overheard Moore state
to someone on the telephone: “I can’t just cite and release. She’ll just go back there.” (Doc. 209 at 301).
17
Again, the validity of the arrest itself is not in issue in this case.
18
Plaintiff’s description of the Defendant’s placement of his hands only on the top of her shoulders calls
into question her report that he was able to physically lift her from the ground in that manner, however

24

injury occurred in an instant when Officer Moore lost his grip on her left shoulder. In
other words, Plaintiff’s alleged shoulder injury was not caused by any intentional
conduct of Officer Moore. Under the circumstances (a screaming, resisting person who
had been warned of her imminent arrest but nevertheless refused to comply with
instructions), a reasonable officer could have believed that the modest amount of
physical force employed to effectuate the arrest was reasonable and necessary. See
Goodrich v. Everett, 193 Fed. Appx. 551 (6th Cir. 2006) (holding that a subjective intent
to cooperate, in the absence of evidence of communication of that intent and given the
totality of circumstances that suggested the opposite intent, is “insufficient to overcome
the built-in measure of deference to the officers’ on-the-spot judgment about the level of
force necessary.”).
Additionally, the undersigned finds nothing in the record to support any claim of a
violation of Fourth Amendment rights after Plaintiff’s seizure by Officer Moore, from the
time he secured the initial handcuff on Plaintiff’s left wrist, waited with Plaintiff against
the cruiser for 2-3 minutes for back-up support to complete the handcuffing, or during
her transport to the Greenhills Police Department office and/or Hamilton County Justice
Center. Plaintiff testified to her belief that the failure to seatbelt her “when your [police]
guidelines call for it” constitutes an excessive use of force under the Fourth
Amendment. (Doc. 209 at 312). While the failure to secure Plaintiff’s seatbelt may
have been negligent, it does not amount to a Fourth Amendment violation.
Plaintiff’s lack of proof of any physical injury resulting from the incident also
momentarily. However, the manner of stopping her by placing his hands on top of her shoulders as
opposed to tackling her to the ground or through other physical force also emphasizes the relatively
minimal nature of the force employed. Considering that Plaintiff had given every intention of declining to
comply with his instructions, it is unclear how Moore could have completed her physical arrest without
some use of force.

25

supports the entry of judgment in Moore’s favor. To be clear, the Supreme Court has
confirmed that the lack of any injury is not the crux of Fourth Amendment analysis,
because it is possible to assert a claim for excessive force even if only a de minimis
injury results. Nevertheless, the absence of injury can support a conclusion that the
force used during an arrest was reasonable. Accord, Bolden v. City of Euclid, 595 Fed.
Appx. at 471. Plaintiff’s claim of excessive force rests on the amount of physical force
applied during a one to two second period during her arrest, during which she alleges
that she sustained a serious injury to her left shoulder. However, Plaintiff testified that
she was “not in extreme physical pain other than the date of the incident,” and only later
experienced pain “periodically, if I made a specific movement” such as reaching up for
her seatbelt. (Doc. 210 at 419; see also Doc. 209 at 359, confirming pain was erratic
with certain movements).

She testified that it was only after friends advised her over

Christmas that she should get “checked out for rotator cuff” because that could require
surgery that she made an appointment with her physician in either January or February
of 2012. (Doc. 209 at 355-356). However, Plaintiff has failed to come forward with any
record documenting that appointment, or with any other evidence that would
corroborate her claim of more than de minimis injury sustained on November 2, 2011.
Officer Moore’s contemporaneous report reflects Plaintiff’s report of “arm and
wrist aching” but no other injury. Plaintiff did not seek medical treatment after being
released the same day, (id. at 335), and medical intake records from the justice center
reflect no complaints or report of injury at all. A medical record dated November 18,
2011 as a routine three-month follow-up appointment reflects no reported concerns
relating to her shoulder. (Doc. 211-1 at 1). A record dated December 30, 2011 likewise

26

reports no “new medical problems.” (Doc. 211-1 at 25). Plaintiff also failed to report
any arm or shoulder pain at a follow-up medical appointment in February 2012. (Doc.
210 at 412).
During her deposition Plaintiff admitted that she had been diagnosed with left
shoulder impingement in April of 2007, four and a half years prior to the incident. (Doc.
209 at 349-350; Doc. 211-1 at 2).

The first post-incident record in which Plaintiff

reported shoulder pain to a physician is dated nearly a year and a half after the incident,
on April 29, 2013, but the physician’s note reads “suspect recurrent flair of rotator cuff
tendonitis with yard work.” (Doc. 211-1 at 6-7; Doc. 209 at 365, emphasis added). The
physician’s note refers to a prior incident of shoulder pain on an unstated date that
“[r]esolved for a few months after course of steroids.” (Doc. 211-1 at 6). Plaintiff’s
explanation that her physician failed to reference the cause of her injury as dating from
her November 2011 arrest because it was “continuing treatment,” (Doc. 209 at 365), is
not credible in the absence of any evidentiary support. Although Plaintiff continually
argues that more definitive medical records linking the injury to her arrest were
“missing” from the production of records initially provided to Defendants by University
Hospital and were later hand-delivered by her to defense counsel, it remains Plaintiff’s
burden to produce probative evidence in response to the Defendant’s motion for
summary judgment. Failing to carry that burden, Plaintiff has produced no evidence of
any injury that relates to her arrest.
2. Plaintiff’s Claims Against the Village Fail As a Matter of Law
Because Officer Moore did not violate Plaintiff’s Fourth Amendment rights during
the arrest, the Village cannot be held liable on Plaintiff’s claims that it “ratified” his

27

allegedly unconstitutional conduct, and/or that it had a policy of failing to train its officers
on the use of force in violation of the Fourth Amendment. Therefore, the Village is
entitled to summary judgment.
However, should any reviewing court disagree and find that Plaintiff has
produced evidence sufficient to overcome Defendant Moore’s motion for summary
judgment, the undersigned still would recommend that the Village be granted summary
judgment. On the record presented, the evidence supports no more than a theory of
“supervisory” liability, and a municipality cannot be held liable under 42 U.S.C. § 1983
under a theory of respondeat superior. Monell v. Dept. of Soc. Servs. of City of New
York, 436 U.S. 658, 691 (1978).
The Village persuasively argues that Plaintiff has failed to come forward with any
evidence that the Village has promulgated any official policy or custom that resulted in
the alleged deprivation of her constitutional rights. See Gregory v. City of Louisivlle,
444 F.3d 725, 752 (6th Cir. 2006). To carry her burden, Plaintiff is required not only to
show the existence of a policy or custom, but she is required to show that the policy or
custom was a “moving force” behind the constitutional violation.

Polk County v.

Dodson, 454 U.S. 312, 325 (1981). Where the cited policy is not itself unconstitutional,
the plaintiff must show more than a single incident to establish fault on the part of the
municipality, and the causal connection between the policy and the constitutional
deprivation. Mann v. Helmig, 289 Fed. Appx. 845, 852 (6th Cir. 2008), citing Oklahoma
City v. Tuttle, 471 U.S. 808 (1985).
A municipality may be held liable for a deficiency in a training program “only
where the failure to train amounts to deliberate indifference to rights of persons with

28

whom the police come into contact.” Canton v. Harris, 489 U.S. 378, 388 (1989). To
prove her claim, Plaintiff must show that “the need for more or different training is so
obvious and the inadequacy so likely to result in the violation of constitutional rights, that
the policymakers of the city can reasonably be said to have been deliberately indifferent
to the need.” Id. at 390.
That a particular officer may have been unsatisfactorily trained will not
alone suffice to fasten liability on the city, for the officer’s shortcomings
may have resulted from factors other than a faulty training
program….Neither will it suffice to prove that an injury or accident could
have been avoided if an officer had had better or more training…plainly,
adequately trained officers occasionally make mistakes; the fact that they
do says little about the training program or the legal basis for holding the
city liable.
Id. at 390-391 (internal citations omitted). On the facts presented, the Village would be
liable only if Plaintiff’s evidence suggests such a complete failure to train, or training that
is so reckless or grossly negligent, that future police misconduct is almost inevitable.
Hays v. Jefferson County, Ky, 668 F.2d 869, 874 (6th Cir. 1982).
The Village has filed the affidavit of its current Chief of Police who attests that all
Village officers attend a six month basic training course at the Ohio Peace Officer
Training Academy, and thereafter participate in a field training program consisting of
several weeks of practical skills training under the supervision of experienced field
training officers. (Doc. 200-1). Officers also are provided continuing education courses
and are trained specifically on use-of-force bi-annually. Id. Plaintiff testified that she is
unaware of any deficiencies in the training that the Village provides to its officers. (Doc.
209 at 332).
In opposition to Defendant’s motion, Plaintiff argues that the current Chief of
Police was hired after 2011, and therefore cannot attest to what the use of force policy
29

was, or what training was received by the police force on or before November 2, 2011.
However, the undersigned finds this argument to be without merit. Despite the lack of
precise dates offered by Chief Ferdelman’s affidavit, the affidavit is sufficient, together
with the attached Village Use of Force policy (which is dated in 2008, well before the
2011 incident) to support the Defendant’s contention that no dispute exists concerning
the training provided to Village officers, including Officer Moore. The only contrary
evidence that Plaintiff points to is a discovery response dated 9/24/15 in which Officer
Moore states that he does not currently have a copy of his “police training
documentation regarding use of force continuum” in his possession, custody, or control.
(Doc. 213-1 at 61-62, Request for Production IV and response). However, the fact that
in September 2015, Officer Moore did not possess documentation of his training from
four years earlier, is not sufficient to create a genuine issue of fact about whether the
Village trains its officers on use of force.
Plaintiff’s allegation that the Village “ratified” Officer Moore’s alleged violations
of the Fourth Amendment also fails as a matter of law. Plaintiff made no complaint
about Defendant Moore’s conduct to the police chief at the time, because she believed
it would be futile. (Doc. 209 at 332). To prevail under an “inaction theory,” Plaintiff must
provide: (1) a clear and persistent pattern of illegal activity, (2) which the Village knew or
should have known about; (3) yet remained deliberately indifferent about and (4) that
the Department’s custom was the cause of the violation. Thomas v. City of
Chattanooga, 398 F.3d 426, 432-433 (6th Cir. 2005). Plaintiff has offered no evidence
whatsoever to prove these elements. In response to Defendant’s motion, she must
offer at least minimal evidence of some pattern of illegal use-of-force activity. Plaintiff’s

30

apparently long-running political disputes with the Village may (in her view) show
animus by Village officials (particularly by the mayor and Council officials), but she has
failed to present any evidence that the Village “ratified” any alleged Fourth Amendment
violation by Officer Moore.
3. Plaintiff’s Emotional Distress Claims Against Officer Moore Fail as a
Matter of Law
Last but not least, Defendant Moore is entitled to judgment as a matter of law on
Plaintiff’s intentional infliction of serious emotional distress claims. As an employee of a
political subdivision acting within the scope of his duties as a police officer, Officer
Moore is entitled to the protections of Ohio Revised Code § 2744.03(A)(6) unless his
actions were “manifestly outside the scope” of his employment as a police officer, or his
actions “were with a malicious purpose, in bad faith, or in a wanton or reckless manner.”
There is no liability for negligence. See Linley v. DeMoss, 615 N.E.2d 631, 634, 83
Ohio App.3d 594, 599 (Ohio Ct. App. 1992). Even if Officer Moore made a mistake in
arresting Plaintiff, that mistake would not give rise to civil liability under Ohio law.
Ohio courts have held that the absence of wanton misconduct and issues of
immunity can be determined as a matter of law, “preferably on a motion for summary
judgment.” Id., 615 N.E.2d at 634 (internal quotation and citation omitted).
differentiates between “willful,” “wanton” and “reckless” misconduct.

Ohio

Anderson v.

Massillion, 983 N.E.2d 266, 134 Ohio St. 3d 380 (Ohio 2012). “Willful misconduct
implies an intentional deviation from a clear duty or from a definite rule of conduct, a
deliberate purpose not to discharge some duty necessary to safety, or purposefully
doing wrongful acts with knowledge or appreciation of the likelihood of resulting injury.”
Id at ¶32. “Wanton misconduct is the failure to exercise any care toward those to whom
31

a duty of care is owed in circumstances in which there is great probability that harm will
result.” Id. at ¶33. “Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable under
the circumstances and is substantially greater than negligent conduct.” Id. at ¶ 34.
Summary judgment is appropriate when there is no evidence that the employee
acted wantonly or recklessly. See Irving v. Austin, 741 N.E.2d 931, 934, 138 Ohio
App.3d 552, 556 (Ohio Ct. App. 2000).

On the facts presented and for the same

reasons that Officer Moore is entitled to qualified immunity on the Fourth Amendment
claims, he is immune from Plaintiff’s Intentional Infliction of Emotional Distress claim
under Ohio law. There is no evidence that the Defendant acted unreasonably, much
less wantonly, willfully or even recklessly.
Even if the Ohio statute did not shield Officer Moore, however, the undersigned
agrees with Defendant’s alternative argument that he is entitled to judgment based upon
the lack of proof on this claim. Under Ohio law, the tort of intentional infliction of serious
emotional distress is committed when a person “by extreme and outrageous conduct
intentionally or recklessly causes severe emotional distress to another….” Yeager v.
Local Union 20, Teamsters, Chauffeurs, Warehouseman & Helpers of Merica, 453
N.E.2d 666, 671, 6 Ohio St.3d 369, 374 (Ohio 1983) (quoting Restatement (Second) of
Torts, (1965) 71, Section 46(1), vacated on other grounds by Welling v. Weinfeld, 866
N.E.2d 1051 (Ohio 2007)). Plaintiff has failed to produce evidence to establish any of
the elements of her claim. See generally Cook v. Cincinnati, 658 N.E.2d 814, 103 Ohio
App.3d 80 (Ohio Ct. App. 1995) (granting summary judgment where plaintiff failed to
show officers’ conduct was malicious, wanton, reckless or in bad faith); see also Knox v.

32

Hetrick, 2009 WL 792357 (Ohio Ct.. App March 26, 2009) (arrestee could not recover
based on lack of evidence that officer intended to inflict emotional distress or that his
conduct in effecting arrest amounted to the type of extreme and outrageous conduct
necessary to support a claim).
III.

Conclusion and Recommendation

For the reasons stated, IT IS RECOMMENDED THAT Defendants’ motions for
summary judgment on all claims (Docs. 199, 200) be GRANTED, and that this case be
dismissed.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

33

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
PATRICIA A. ANDWAN,
Plaintiff,

Case No. 1:13-cv-624
Beckwith, J.
Bowman, M.J.

v.

VILLAGE OF GREENHILLS, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law
in support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).

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