Andwan v. Greenhills, Village of et al

Filing 246

ORDER adopting Report and Recommendation re 219 Report and Recommendation granting granting 199 , 200 Motions for Summary Judgment; denying 234 Motion to Stay; denying 235 Motion to Dismiss; granting 236 Motion; finding as moot 237 Motion to Intervene; granting 238 Motion; finding as moot 239 Motion to Stay; finding as moot 243 Motion to Strike; overruling 213 Objection to Magistrate Judge Order. Signed by Judge Michael R. Barrett on 3/28/18. (ba)(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 ANDWAN
Plaintiff,
vs.
VILLAGE OF GREENHILLS, OHIO, et al.,
Defendants.

)
)
) Case No.: 1:13cv624
)
) Judge Michael R. Barrett
) Magistrate Judge Stephanie K. Bowman
)
)
)
)
)

ORDER
This matter is before the Court on the Magistrate Judge’s August 21, 2017 Report and
Recommendation (“R&R”) (Doc. 219). On October 15, 2017, Plaintiff filed a document titled
“Third Motion to Dismiss Summary Judgment (DOC. 199) & (DOC. 200) Motions & 1st Motion
to Dismiss R&R (219) submitted in lieu of Plaintiff’s Opposition to R&R (DOC. 219)…” (Doc.
235). Defendants filed a response (Doc. 240) and Plaintiff filed a reply (Doc. 241). Also pending
are the following motions: 1) Plaintiff’s Second Motion to Stay (Doc. 234); 2) Plaintiff’s motions
to supplement the record (Docs. 236, 238); 3) Plaintiff’s Second Motion to Intervene (Doc. 239);
4) Plaintiff’s Second Motion to Stay Order on Motion to Intervene (Doc. 239); and Defendants’
Motion to Strike Reply to Response to Motion (Doc. 243). This matter is now ripe for disposition.
I. BACKGROUND
This matter has a long and involved procedural history, which has been well documented
throughout these proceedings. Only the facts necessary to address Plaintiff’s objections 1 and

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The Court notes that Plaintiff indicated her Motion to Dismiss (Doc. 235) was filed in lieu of filing objections to
the Magistrate Judge’s R&R. It is therefore arguable that Plaintiff did not properly object to the R&R. However,
objections of pro se litigants are to be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197,
167 L. Ed. 2d 1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 251 (1976)).

other pending motions will be restated herein. The crux of Plaintiff’s argument is that the medical
records in the record are incomplete, which unfairly affected the disposition of the R&R. She also
argues her handwritten “notations” on various documents should have been considered.
II. STANDARD
When objections to a magistrate judge’s report and recommendation are received on a
dispositive matter, the assigned district judge “must determine de novo any part of the magistrate
judge's disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). After review,
the district judge “may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C.
§ 636(b)(1). General objections are insufficient to preserve any issues for review: “[a] general
objection to the entirety of the Magistrate [Judge]’s report has the same effect as would a failure
to object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).
Nevertheless, the objections of a petitioner appearing pro se will be construed liberally. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
III. ANALYSIS
To begin, the Court must address some preliminary matters. First, Defendants oppose
Plaintiff’s Motion to Supplement Medical Records (Doc. 235) and Plaintiff’s Motion to
Supplement Exhibit J (Doc. 238). Upon review, the Court GRANTS Plaintiff’s Motions. To the
extent they are admissible, the Court will consider Plaintiff’s supplemental exhibits.
Also before the Court is Defendants’ Motion to Strike Plaintiff’s Reply. (Doc. 243).
While the Court agrees with Defendants that Federal Rule of Civil Procedure 72(b)(2) does not
provide for the filing of a reply, upon review, the Court finds the result does not change regardless

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of whether the Court considers Plaintiff’s reply. Accordingly, Defendants’ Motion (Doc. 243) is
DENIED AS MOOT.
Third, Plaintiff filed multiple motions to stay this matter. The first is essentially a motion
for additional time file objections to the Magistrate Judge’s R&R. (Doc. 234). Plaintiff’s motion
is DENIED. However, as explained more fully herein, the Court treats Plaintiff’s Third Motion to
Dismiss (Doc. 235) as objections to the Magistrate Judge’s R&R (Doc. 219).
In addition, Plaintiff requests a stay pending a ruling on Plaintiff’s request for injunctive
relief filed in state court. (Doc. 239). The Court takes judicial notice of the case history in
Hamilton County Common Pleas Case No. A1705423: Patricia A. Andwan v. Village of
Greenhills, OH. On November 30, 2017, Judge Steven E. Martin denied Plaintiff’s Motion for
Temporary Restraining Order and granted Defendant’s Motion to Dismiss. Plaintiff’s Motion for
Reconsideration and for Emergency Hearing was denied on December 4, 2017. Accordingly,
Plaintiff’s motion (Doc. 239) is DENIED AS MOOT.
Finally, still pending is Plaintiff’s Pro Se Objection to Magistrate Bowman’s Order
Regarding Motions for Summary Judgment and Stopgap Response Draft (Doc. 213). Plaintiff is
not entitled to instructions from the Court with respect to summary judgment responses. Indeed, as
this Court has explained to Plaintiff on numerous occasions, courts are not permitted to give
litigants legal advice. See In re Nicole Energy Servs., Inc., 423 B.R. 840, 847 (Bankr. S.D. Ohio
Feb. 25, 2010). Because Defendants’ motions for summary judgment have been properly ruled on,
Plaintiff’s objections are OVERRULED.
1. Medical Records
Construing her arguments liberally, it appears as though she first argues the missing
medical records, some of which she filed in conjunction with her objections, document evidence of

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her continued treatment and therapy stemming from the alleged excessive force employed by
Defendant Moore. In other words, she appears to argue that her shoulder injury was more serious
than the medical records provided by Defendants showed.
The Magistrate Judge concluded Defendant Moore was entitled to qualified immunity on
Plaintiff’s Fourth Amendment claim. She explained, in part, as follows:
…Plaintiff’s alleged should 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.
Doc. 219, PageID 3718). While the Magistrate Judge also explained Plaintiff’s lack of injury
supported the conclusion that the amount of force used was reasonable, she also correctly
explained that lack of an injury alone is not dispositive of an excessive force claim. (Id. at
PageID 3720).
As best the Court can tell, Plaintiff takes issue with the Magistrate Judge’s conclusion
that Plaintiff failed to come forward with any documentation of an appointment in January or
February of 2012 wherein she complained of rotator cuff pain. (Id.). For the first time, Plaintiff
provides medical records from a visit with Dr. David Foote on February 1, 2012, which she
appears to argue, create a question of fact. (Doc. 236-2).
Upon review, however, it is clear the lack of evidence of an injury was one of many
factors the Magistrate Judge considered when concluding the amount of force used was
reasonable. Indeed, whether Plaintiff’s shoulder injury required additional treatment alone is not
determinative. Rather, as the R&R correctly explained the dispositive issue with respect to a
qualified immunity analysis is whether the amount of force was reasonable.

(Id.) (citing

Goodrich v. Everett, 193 Fed. Appx. 551 (6th Cir. 2006)). Moreover, upon review, the Court

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agrees with the Magistrate Judge that (even when considering the new medical records submitted
by Plaintiff), Defendant Moore is entitled to qualified immunity. Plaintiff’s objections on this
issue are OVERRULED.
Accordingly, the Village too is entitled to summary judgment. In the absence of any
constitutional violation, there can be no unconstitutional custom or policy. Heyerman v. County
of Calhoun, 680 F.3d 642, 648 (6th Cir. 2012) (“Municipal liability only attaches where a
custom, policy, or practice attributable to the municipality was the ‘moving force’ behind the
violation of the plaintiff’s constitutional rights.”).
To the extent Plaintiff cites to additional medical records in support of her Intentional Infliction
of Emotional Distress (“IIED”) claim, such an argument likewise fails. As the Magistrate Judge
explained, 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). Because the undersigned agrees with the Magistrate Judge that there in no
evidence Defendant Moore acted unreasonably, the undersigned similarly agrees that there is no
evidence he acted wantonly or recklessly.
Plaintiff also appears to dispute the adequacy of the care provided to her by a Talbert
House and Centerpoint therapist.

Whether Plaintiff received adequate medical care from a

particular therapist is not relevant to Plaintiff’s IIED claim against Defendant Moore, and
specifically, whether Defendant Moore is immune from such a claim under Ohio law. Ohio Rev.
Code § 2744.03(A)(6). To be sure, Ohio Revised Code § 2744.03(A)(6) limits the inquiry to
Defendant Moore’s actions in determining whether he is entitled to protection under Ohio law. As
the Magistrate Judge correctly explained, “…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 malicious purpose, in bad faith, or in a
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wanton or reckless manner.’” (Doc. 219, PageID 3725). Plaintiff’s objections on this issue are
OVERRULED.
2. Handwritten Notes
Next, Plaintiff objects to the Magistrate Judge’s decision not to consider Plaintiff’s
handwritten notes on the exhibits. (Doc. 235, PageID 3905) (“Defendants, in bad faith, distorted
the Magistrate’s evaluation with claims of the need for “authentication of Plaintiff’s handwriting”
and “certification” of the three criminal trial transcripts. This tactic resulted in Magistrate
Bowman, totally disregarding138 pages (DOC. 140 Exhibit) of information notations on various
documents, including interrogatory and Discovery records)!”).
As the Magistrate Judge correctly explained, exhibits that are not properly authenticated are
not admissible. However, the Magistrate Judge further stated, “the undersigned believes that the
exhibits that have been considered could be properly authenticated, and could be presented in
admissible form notwithstanding their current inadmissible form.” (Doc. 219, PageID 3703).
Contrary to Plaintiff’s assertion, the Magistrate Judge gave Plaintiff considerable leeway in
considering Plaintiff’s exhibits – none of which were admissible in present form; and she did so
despite Defendants’ strenuous objections. (Id).
As for Plaintiff’s handwritten notations, whether certain exhibits were properly
authenticated is not the only consideration with respect to the admissibility of such notations. As
Defendants correctly assert, Plaintiff’s handwritten notes are not evidence pursuant to Federal of
Civil Procedure 56, but rather additional argument. Accordingly, the Court finds no error in the
Magistrate Judge’s decision not to consider Plaintiff’s handwritten notes. Plaintiff’s objections on
this issue are OVERRULED.

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IV. CONCLUSION
Consistent with the foregoing, the following is hereby ORDERED:
1. Plaintiff’s Motions to Supplement the Record (Docs. 236, 238) are
GRANTED;
2. Defendants’ Motion to Strike (Doc. 243) is DENIED AS MOOT;
3. Plaintiff’s Motion to Stay (Doc. 234) is DENIED;
4. Plaintiff’s Motion to Stay (Doc. 239) is DENIED AS MOOT;
5. Plaintiff’s Objection to the Magistrate Judge’s Order (Doc. 213) is
OVERRULED;
6. Plaintiff’s Second Motion to Intervene (Doc. 237) is DENIED AS MOOT;
7. Plaintiff’s Third Motion to Dismiss, which the Court treats as Objections to
the Magistrate Judge’s R&R (Doc. 235) are OVERRULED;
8. The Magistrate Judge’s R&R (Doc. 219) is ADOPTED IN FULL.
Accordingly, Defendants’ Motions for Summary Judgment (Docs. 199, 200) are
GRANTED.
IT IS SO ORDERED.
______________________
s/Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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