Durham v. Niffenegger et al

Filing 184

OPINION AND ORDER. Signed by Judge Jeffery P. Hopkins on 12/6/2023. (kmc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DAVID DURHAM ,
Plaintiff,
v.
DETECTIVE JERRY
NIFFENEGGER, et al.,
Defendants.

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Case No. 1:18-cv-00091
Judge Jeffery P. Hopkins
Magistrate Karen L. Litkovitz

OPINION AND ORDER
Plaintiff David Durham is no newcomer to the judicial process. In 1987, Durham was
charged with theft by deception. The charge was later dismissed. On August 29, 2016,
Durham was indicted on five counts of receiving stolen property pursuant to Ohio Revised
Code Section 2913.51(A) in a case captioned State of Ohio v. David Durham, Case No.
16CR32278, in the Court of Common Pleas of Warren County, Ohio (the “Criminal Case”).
As a part of its investigation, the State of Ohio seized certain property and monies from
Durham. The State failed to uphold its burden of proof and the case was dismissed at trial.
Durham then filed a motion requesting the return of, or to be compensated for, the
property and money seized during the Criminal Case. Durham even negotiated an agreement
with the State consistent with his request. The criminal court granted his motion and accepted
the agreement. After Durham received the requested items, he filed this lawsuit, which
includes state law claims alleging that he was not properly compensated for the property, as
well as violations of his constitutional rights under 42 U.S.C. § 1983.

After years of litigation and discovery, Defendants Walmart Stores, Inc. (“Walmart”)
and its employee, Scott Hollopeter, Target Corporation (“Target”) and its employee, James
Christian, and Detectives Jerry Niffenegger and Mark Purdy of the Warren County Sheriff’s
Office (“WCSO”), now move the court for summary judgment pursuant to Fed. R. Civ. P.
56. For the reasons discussed, the Court finds that Durham is judicially estopped from
asserting his state law claims. Durham has already litigated – and has been compensated for
the relinquishment of – his rights concerning the seized property and cannot revisit that issue.
The Court also finds no genuine issue of material fact concerning the alleged violations of
Durham’s constitutional rights. The record conclusively shows that his constitutional rights
were not violated. Accordingly, the Court GRANTS Defendants’ Motions for Summary
Judgment (Docs. 163, 167, 169) and DISMISSES Durham’s Amended Complaint (Doc. 40)
WITH PREJUDICE.
I.

BACKGROUND
A.

After a Third-Party Tip, the Walmart and Target Defendants Suspect
Durham’s Video Game Resale Business is a “Fencing” Operation.

Plaintiff David Durham owned and operated three retail store locations that were
engaged in the buying and selling of used video games and related merchandise. Durham
Dep., Doc. 142, PageID 997–78. Durham’s retail stores include two “Games Galore” stores
– one located at the Northgate Mall in Cincinnati, Ohio, and one located in Harrison, Ohio
– and a Games Galore booth at Traders World in Monroe, Ohio. Id. at PageID 807. David
has operated his resale business since 2004. Id.
In October of 2015, an individual named Sentel Brooks was apprehended for
shoplifting by Home Depot security. Christian Dep., Doc. 146, PageID1831. Brooks
informed a Home Depot investigator, Jaime Mansfield, that he had been stealing products
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from Target and Walmart and reselling the products at Durham’s stores – a process known
as fencing. Id.; Hollopeter Dep., Doc. 149, at PageID 2233–34. Fencing is a type of criminal
activity where stolen merchandise (i.e., merchandise from Brooks) is knowingly bought by a
“fence” (i.e., Durham’s stores) and sold at low prices to end consumers. Christian Dep., Doc.
146, PageID 1863. Mansfield relayed the information about Durham separately to Defendant
Niffenegger of the WCSO, Defendant Christian, an investigator employed by Target, and
Defendant Hollopeter, an investigator employed by Walmart. Id. at PageID 1841–42, 1866–
67.
B.

The WCSO Begins Its Investigation into Durham.

In December of 2015, an investigation into Durham’s alleged fencing operation
commenced involving Defendants Walmart and Hollopeter, Target and Christian, and
detectives from the WCSO. Doc. 149, PageID 2235–36. Defendant Jerry Niffenegger of the
WCSO led the investigation of Durham (Doc. 144, PageID 1167), and Defendant Mark
Purdy of the WCSO served an active role in the investigation in an undercover capacity. Doc.
145, PageID 1613.

Walmart and Target participated in the investigation by providing

merchandise to the WCSO that would be passed off as “stolen” to Durham through controlled
sales. Doc. 149, PageID 2325–44. The controlled sales would allow the WCSO to determine
whether Durham’s stores operated as fences. Id. Walmart and Target had engaged in similar
operations with law enforcement in the past. Id. at PageID 2252–53; Doc. 146, PageID 1841.
The investigation of Durham occurred over a period of months. It consisted of
information gathering, along with a series of controlled sales to Durham by Sentel Brooks
and Defendant Purdy. See generally, Doc. 144-8. On December 20, 2015, Brooks entered
Durham’s Traders World booth and sold Durham brand new video game merchandise in

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sealed packaging that was obtained from Target. Id. at PageID 1466. Brooks advised
Durham that he was “risking his life to obtain the product,” and indicated to the WCSO that
he believed Durham was familiar with their past transactions. Id. Durham also advised
Brooks that he would be able to obtain firearms from Indiana for Brooks to purchase. Id. An
additional sale of merchandise was made by Brooks to Durham on January 3, 2016, using
similar merchandise from Walmart. Id.
Defendant Mark Purdy made five sales to Durham throughout January and February
of 2016. Id. at PageID 1468–70. Purdy sold Durham merchandise from both Walmart and
Target, including sealed video games and devices with spider-wire security. Id. The WCSO
verified that the same merchandise sold to Durham was on sale at his stores.

Id. at

PageID 1467–70.
Based upon the investigation, two search warrants were issued for Durham’s retail
locations at the Northgate Mall and Traders World on February 8, 2016. Id. at PageID 1470;
Docs. 144-5, 144-6. The warrants authorized the search of each location for “the said goods,
chattels, or articles, and to retrieve any evidence of criminal activity which may be found,”
including Xbox 1 and PlayStation 4 games, controllers, any new gaming systems and games
in original packaging, documents, safes, firearms, US currency, and any items obtained
and/or received through the commission of a crime. Docs. 144-5, 144-6. The warrants were
signed by judges in the Court of Common Pleas of Warren County, Ohio, and the Municipal
Court of Hamilton County, Ohio. Docs. 144-5, 144-6.
The next day, the WCSO executed a search warrant and, along with an officer from
Colerain Township, entered Durham’s Northgate Mall location with weapons drawn. Doc.
142, PageID 883. Defendant Niffenegger indicated that firearms were utilized by the officers

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at the scene because of intel that Durham may have firearms at the store. Doc. 144,
PageID 1269. One unidentified officer entered with a loaded shotgun which was pointed at
Durham. Doc. 142, PageID 884. The shotgun was raised for approximately thirty seconds.
Williams Dep., Doc. 150, PageID 2386–87. Durham was ordered to the ground by the
officers and remained there for about one minute. Doc. 142, PageID 884. Officer Hendricks
of the Colerain Township Police Department subsequently stood Durham up and put him in
handcuffs for about ten minutes. Id. at PageID 884, 887. Durham suffered no physical
injuries from the execution of the search warrant. Id. at 888–89.
Defendants Hollopeter and Christian arrived on the scene after the warrant was
executed to assist with the identification of Walmart and Target property.

Doc. 144,

PageID 1315; Doc. 146, PageID 1930–31; Doc. 149, PageID 2254. The remaining property
sold to Durham through controlled sales was seized, and items seized were consistent with
the search warrant. Compare Doc. 144-5 with Doc. 144-8. Durham was provided with a
complete inventory of the seized property.

Doc. 144, PageID 1323–24; Doc. 144-8,

PageID 1470–71.
Next, the WCSO officers executed the search warrant for Durham’s Traders World
booth. Doc. 144, PageID 1271. The WCSO identified and removed property in accordance
with the search warrant. Compare Doc. 144-6 with Doc. 144-8. Like the previous search,
Defendants Hollopeter and Christian arrived on the scene after the WCSO executed the
warrant to assist with the identification of property loaned by Walmart and Target. Doc. 144,
PageID 1315; Doc. 146, PageID 1930–31; Doc. 149, PageID 2254. Durham was provided
with a complete inventory of the seized property. Doc. 144, PageID 1323–24; Doc. 144-8,
PageID 1470–71; Doc. 144-17, PageID 1569–71.

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C.

Durham is Indicted on Five Charges and Subsequently Acquitted at Trial.

On August 29, 2016, a grand jury indicted Durham on five total counts – four first
degree misdemeanor counts and one fifth degree felony count – of receiving stolen property
in violation of Ohio Revised Code § 2913.51(A). Doc. 143, PageID 998; Doc. 1, PageID 23–
25. On or about October 4, 2016, the WCSO returned some of the property to Walmart and
Target. Doc. 144-16, PageID 1518–68. Durham’s criminal case was dismissed on April 24,
2017, after the State presented its case, pursuant to Rule 29 of the Ohio Rules of Criminal
Procedure. See generally, Doc. 154-1.
D.

Durham Files a Motion for Return of Property and Receives the Property Seized
by the WCSO or Compensation for the Same.
About a month later, Durham filed a motion for return of property with the criminal

court on May 18, 2017. Doc. 142-5, PageID 1020–23. Durham’s motion requested the return
of property and money that was seized from his stores pursuant to the search warrants, or, in
the alternative, to be compensated monetarily for the property. Id. at PageID 1020. Durham
also provided the criminal court with a list of the requested property and money. Id. at
PageID 1022–23.
On June 19, 2017, the criminal court held a hearing on Durham’s motion. See
generally, Doc. 158-2. At the hearing, Durham’s counsel explained the agreement that was
reached with the State of Ohio:
The agreement is all the property that was seized from my client, is going to be returned
with the following exceptions: There is one Covert Forces controller and one Star
Wars Battlefront Xbox One game that were both bought from my client at cost by the
Sheriff’s Office. They’re keeping those two items. There’s also fifteen games and two
controllers which are no longer in the possession of the Sheriff’s Office, because
they’ve given them back to either Target or Wal-Mart. They’ve agreed to compensate
my client in the amount of $320 for those items.

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Doc. 158-2, PageID 2599. The parties also determined that Durham would receive all cash
seized from his store locations. Id. The agreement was memorialized in an agreed entry that
the criminal court entered. Doc. 142-6, PageID 1024. Durham then received the available
seized property, $574.13 seized from his cash register, and compensation in the amount of
$320.00 for seized property which was unavailable. Doc. 142, PageID 898–902.
E.

Durham Files This Lawsuit.

The current matter has a lengthy procedural history. On February 9, 2018, Durham
filed the present suit. Doc. 1. Initially, only Niffenegger, Purdy, Walmart, Target, and
Christian were named as defendants along with Does 1–4. Id. Durham pressed constitutional
claims of unreasonable search and seizure, excessive force, violations of his First Amendment
rights, malicious prosecution, and deprivation of due process under 42 U.S.C. § 1983. Id.
And state law claims of conversion, false imprisonment, false arrest, malicious prosecution,
assault and battery, excessive use of force, intentional infliction of emotional distress,
negligent infliction of emotional distress, gross negligence and reckless actions, civil
conspiracy, and theft, conversion, and unjust enrichment. Id.
All claims remain against Defendants Niffenegger and Purdy, as they chose to file their
Answer to the Complaint on May 18, 2018. Doc. 18. On the other hand, Defendants
Walmart, Target, and Christian chose to file Motions to Dismiss. Docs. 16, 20. The Court
granted in part, and denied in part their Motions, leaving only Durham’s § 1983 claims
against Defendant Christian, and state law claims for conversion, unjust enrichment, and civil
conspiracy against Defendants Walmart, Target, and Christian. Docs. 25, 30.
Durham then filed a motion for leave to amend his Complaint to identify John Doe 1
as Defendant Scott Hollopeter. Doc. 41. The Court granted that motion, but only allowed

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Durham leave to bring supplemental state law claims against Hollopeter for conversion,
unjust enrichment, and civil conspiracy. Docs. 57, 60.
After a several years of litigation, Defendants each filed Motions for Summary
Judgment in December of 2022. Docs. 163, 167, 169. The Court now considers each issue
raised in turn.
II.

STANDARD OF REVIEW
Defendants seek summary judgment. “The ‘part[ies] seeking summary judgment

always bear[] the initial responsibility of informing the district court of the basis for [their]
motion and identifying those portions’ of the record which demonstrate ‘the absence of a
genuine issue of material fact.’” Rudolph v. Allstate Ins. Co., No. 2:18-cv-1743, 2020 WL
4530600, at *3 (S.D. Ohio Aug. 6, 2020) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)).
But the non-moving party cannot defeat summary judgment merely by pointing to any
factual dispute. Indeed, “the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Int’l Outdoor, Inc. v. City of
Troy, 974 F.3d 690, 697 (6th Cir. 2020) (bracket and emphases omitted) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)). In other words, the dispute must be
“genuine” (i.e., supported by evidence) and go to a “material fact” (i.e., a fact that could matter
to the outcome).
In sum, after reviewing the cited evidence, the Court must determine whether there is
some “sufficient disagreement” that necessitates submitting the matter to a jury. Moore v.
Phillip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993) (quoting Anderson, 477 U.S. at 251–

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52). In making that determination, though, the Court must view the evidence in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (“In arriving
at a resolution, the court must afford all reasonable inferences, and construe the evidence in
the light most favorable to the nonmoving party.”).
III.

LAW AND ANALYSIS
To resolve Defendants’ summary judgment motions, the Court must make several

determinations.
First, does the doctrine of judicial estoppel apply to Durham’s remaining state law
claims? 1 If not, is there a genuine dispute of material fact concerning the merits of Durham’s
state law claims? Ultimately, the Court finds that Durham is judicially estopped from making
claims that he was not properly compensated for, or is the rightful owner of, the seized
property acquired by Defendants Walmart and Target. And based on that finding, the Court
concludes that Defendants are entitled to summary judgment on Durham’s civil theft,
conversion, and unjust enrichment claims.
Second, are Defendants Niffenegger and Purdy entitled to qualified immunity for their
actions in executing the search warrants against Durham? The Court finds that the search
warrants were supported by probable cause, Defendants Niffenegger and Purdy’s actions were

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Consistent with its previous ruling, this Court need not address the merits of Durham’s state law claims for
false arrest, false imprisonment, and assault and battery that remain against Defendants Niffenegger and Purdy
because those claims are time-barred. Docs. 25, 30. Those claims must be brought within one year after the
cause of action accrues. See Ohio Rev. Code § 2305.111 (one-year statute of limitations for claims of assault
and battery); Ohio Rev. Code § 2305.11(A) (one-year statute of limitations for claims of false imprisonment
or false arrest). It is undisputed that these state law claims accrued on February 9, 2016, and Durham initiated
this lawsuit on February 9, 2018 – two years after those events. The Court also need not address any federal
civil conspiracy.

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objectively reasonable, and the Defendants did not violate Durham’s constitutional rights.
Accordingly, when affording all reasonable inferences to Durham, and construing the
evidence in the light most favorable to him, the Court concludes Defendants Niffenegger and
Purdy are entitled to summary judgment on Durham’s § 1983 claims.
Last, did Defendant Christian engage in a conspiracy to violate Durham’s
constitutional rights, making him a § 1983 state actor?

Durham has not established a

conspiracy to violate his constitutional rights between Defendant Christian and the State
because his constitutional rights were not violated. Defendant Christian is therefore entitled
to summary judgment on Durham’s § 1983 claims.
The Court will address each of the issues presented in turn.
A.

Durham’s Civil Theft, Conversion, and Unjust Enrichment Claims are
Barred by the Doctrine of Judicial Estoppel.

As a threshold issue, Defendants argue that Durham’s civil theft,2 conversion, and
unjust enrichment claims are barred by the doctrine of judicial estoppel. Durham argues that
because Defendants Walmart and Target received the seized property before the agreed entry
was entered, his current position is not inconsistent with his position in the related criminal
action. The Court disagrees with Durham.
An equitable doctrine, judicial estoppel holds that, “[w]here a party assumes a certain
position in a legal proceeding, and succeeds in maintaining that position, he may not
thereafter, simply because his interests have changed, assume a contrary position.” Watkins
v. Bailey, 484 F. App’x 18, 20 (6th Cir. 2012) (quoting New Hampshire v. Maine, 532 U.S. 742,
749 (2001)). “The Supreme Court has provided three factors to assess whether judicial

2

The only civil theft claims that remain at this stage are against Defendants Niffenegger and Purdy.

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estoppel should be applied in a particular case: (1) whether the party’s current position is
‘clearly inconsistent’ with its previous one; (2) whether the earlier court actually accepted the
party’s position; and (3) whether the party against whom judicial estoppel is invoked would
‘derive an unfair advantage or impose an unfair detriment on the opposing party if not
estopped.’” Grise v. Allen, 714 F. App’x 489, 495 (6th Cir. 2017) (quoting New Hampshire, 532
U.S. at 750–51). However, these factors are not “inflexible prerequisites or an exhaustive
formula for determining the applicability of judicial estoppel.” New Hampshire, 532 U.S. at
751.
The Sixth Circuit has noted that the first two factors for judicial estoppel identified in
New Hampshire bar a party from “(1) asserting a position that is contrary to one that the party
has asserted under oath in a prior proceeding, where (2) the prior court adopted the contrary
position either as a preliminary matter or as part of a final disposition.” Browning v. Levy, 283
F.3d 761, 775 (6th Cir. 2002) (internal quotations omitted). Regarding this “prior success”
requirement, the party against whom the judicial estoppel doctrine is to be invoked need not
have prevailed on the merits of the action; rather, it is sufficient if the first court has adopted
the position urged by the party as a preliminary matter. Reynolds v. Comm’r of Internal Revenue,
861 F.2d 469, 473 (6th Cir. 1988). “Because the doctrine is intended to protect the judicial
system, rather than the litigants, detrimental reliance by the opponent of the party against whom
the doctrine is applied is not necessary.” Felix v. Dow Chem. Co., No. 2:07-cv-971, 2008 WL
207857, at *3 (S.D. Ohio Jan. 23, 2008) (quoting In re Coastal Plains, Inc., 179 F.3d 197, 205
(5th Cir. 1999)) (emphasis in original).
The record of a criminal proceeding may support a finding of judicial estoppel in a
civil matter. See Wloszek v. Weston, Hurd, Fallon, Paisley & Howley, LLP, 8th Dist. Cuyahoga

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No. 82412, 2004-Ohio-146, ¶ 40(application of judicial estoppel applies in civil proceedings
where an issue was determined in a criminal proceeding); Lovett v. Lucas, No. 1:08CV1253,
2012 WL 13171308, at *18–19 (N.D. Ohio Jan. 4, 2012) (citing Lowery v. Stovall, 92 F.3d 219,
225 (4th Cir. 1996)) (judicial estoppel prevented a plaintiff from asserting a position in a
Section 1983 action contrary to the factual basis of his guilty plea). To apply the principle of
estoppel, however, the trial court in the subsequent civil proceeding must examine the record
to determine exactly what was decided in the criminal proceeding. Emich Motors Corp. v. Gen.
Motors, 340 U.S. 558, 569 (1951). Estoppel extends only to questions “distinctly put in issue
and directly determined” in the criminal prosecution. Id. at 569. In aid of its determination,
the trial court must look to the record, the pleadings, the evidence submitted, the jury
instructions, and any opinions of the courts. Id.
Applying the elements of judicial estoppel, the Court finds that Durham relinquished
ownership of the subject property in the Criminal Case, thus is estopped from making his civil
theft, conversion, and unjust enrichment claims.
Regarding the “prior success” requirement, the Court finds that Durham asserted a
contrary position in the Criminal Case that the criminal court accepted. Durham’s position
in this matter – that he was not properly compensated for the seized property – is clearly
inconsistent with the position adopted by the criminal court at his behest. In the Criminal
Case, Durham filed a motion seeking the “return of property and money.” Doc. 142-5,
PageID 1020. Durham provided a list of merchandise and money that he requested to be
returned to him, “or in the alternative . . . reimbursed monetarily for the property.” Id. at
PageID 1020–23. Consistent with this request, Durham (through his counsel) and the State
of Ohio negotiated an agreed entry. See Doc. 142-6. The criminal court held a hearing on the

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motion and agreed entry on June 19, 2017. See generally, Doc. 158-2. At the hearing,
Durham’s counsel explained the agreement that was reached with the State of Ohio:
The agreement is all the property that was seized from my client, is going to be returned
with the following exceptions: There is one Covert Forces controller and one Star
Wars Battlefront Xbox One game that were both bought from my client at cost by the
Sheriff’s Office. They’re keeping those two items. There’s also fifteen games and two
controllers which are no longer in the possession of the Sheriff’s Office, because
they’ve given them back to either Target or Wal-Mart. They’ve agreed to compensate
my client in the amount of $320 for those items.
Doc. 158-2, PageID 2599. The parties also determined that Durham would receive all cash
seized from his store locations. Id. The agreement was memorialized in an agreed entry that
the criminal court adopted. As a result, Durham received the available seized property,
$574.13 seized from his cash register, and compensation in the amount of $320.00 for seized
property which was unavailable. Doc. 142, PageID 898–902.
The Court also finds that Durham’s civil theft, conversion, and unjust enrichment
claims are an attempt to derive an “unfair advantage” from the judicial system. Durham is
asking the Court to compensate him for property that the government has already
compensated him for. A litigant is not entitled to take advantage of the legal system by
“double dipping” under these circumstances. See e.g., EEOC v. Waffle House, Inc., 534 U.S.
279, 297 (2002) (“[I]t goes without saying that the courts can and should preclude double
recovery by an individual.”). Such a result would amount to the “unfair advantage” that the
doctrine of judicial estoppel is designed to prevent.
Based on the above, Durham is judicially estopped from making claims that he was
not properly compensated for, or is the rightful owner of, the seized property acquired by

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Defendants Walmart and Target. Durham’s civil theft,3 conversion,4 and unjust enrichment5
claims against all Defendants are, therefore, barred. 6
B.

Defendants Niffenegger and Purdy are Entitled to Qualified Immunity.

Defendants Niffenegger and Purdy argue that they are entitled to qualified immunity
on Durham’s federal claims because their conduct was objectively reasonable during the
investigation and apprehension of Durham. The doctrine of qualified immunity generally
protects “government officials performing discretionary functions . . . from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person should have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). The qualified immunity analysis comprises two considerations: (1)
“whether the facts alleged make out a violation of a constitutional right,” and (2) “whether
the right at issue was clearly established when the event occurred so that a reasonable officer

3

A civil theft offense under Ohio law allows a property owner to bring a civil action under Ohio Revised Code
Section 2307.60(A) “to recover damages from any person who willfully damages the owner’s property or who
commits a theft offense, as defined in section 2913.01 of the Revised Code, involving the owner’s property.”
Semco, Inc. v. Sims Bros., Inc., 3d Dist. Marion No. 9-12-62, 2013-Ohio-4109, ¶ 15. As a threshold matter,
Durham cannot now bring a civil theft claim for property allegedly stolen that he was compensated for and
no longer owns.

4

Under Ohio law, “[t]he threshold inquiry for a conversion claim is whether there exists some property interest
or right.” Bunta v. Superior VacuPress, L.L.C., 171 Ohio St. 3d 464, 470 (Ohio 2022). Durham cannot pass this
threshold inquiry as his rights to the property were relinquished in the criminal matter.

5

In Ohio, to recover on “a claim of unjust enrichment, a plaintiff must allege: (1) a benefit conferred by plaintiff
upon a defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the
defendant under circumstances where it would be unjust to do so without payment.” Mirlisena v. Babu, No.
1:15-CV-00058, 2015 WL 8539010, *3 (S.D. Ohio Dec. 11, 2015) (internal quotations omitted). Even if
Durham had adequately argued the first two unjust enrichment elements, there is no genuine dispute of
material fact that Durham was compensated by the government for any property acquired by Defendants. As
such, it would not be “unjust” for Defendants to retain said benefit.

6

As a matter of law, Durham’s civil conspiracy claim against Defendants also fails. See Parmater v. Internet
Brands, Inc., 10th Dist. Franklin No. 14AP-391, 2015-Ohio-253, ¶ 31 (“Civil conspiracy is derivative and the
claim cannot be maintained absent an underlying tort that is actionable without the conspiracy.”)

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would have known that his conduct violated it.” Crawford v. Tilley, 15 F.4th 752, 762–63 (6th
Cir. 2021). If the answer to these questions is “yes,” qualified immunity is improper.
Champion v. Outlook Nashville, Inc., 380 F.3d 893, 901 (6th Cir. 2004) (citations omitted).
“[A]n official ‘cannot be said to have violated a clearly established right unless the
right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes
would have understood that he was violating it.’” Ouza v. City of Dearborn Heights, 969 F.3d
265, 275 (6th Cir. 2020) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)). To determine
whether a right is clearly established, “a district court must look to then-existing binding
precedent from the Supreme Court, the Sixth Circuit or itself.” Adams v. Ohio Univ., 300 F.
Supp. 3d 983, 1001 (S.D. Ohio 2018). It is not the case that for a right to be “clearly
established,” the specific action at issue must previously have been held unlawful, but “it is
to say that in the light of pre-existing law the unlawfulness must be apparent.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). The analysis of whether a right is “clearly established”
must be “undertaken in light of the specific context of the case, not as a broad general
proposition.” Floyd v. City of Detroit, 518 F.3d 398, 405 (6th Cir. 2008). Ultimately, summary
judgment should be denied if the undisputed facts, taken in the light most favorable to the
plaintiff, show that the defendants violated clearly established rights or reveal a factual dispute
“such that it cannot be determined before trial whether the defendant did acts that violate
clearly established rights.” Poe v. Haydon, 853 F.2d 418, 426 (6th Cir. 1988); see Vakilian v.
Shaw, 335 F.3d 509, 515 (6th Cir. 2003) (stating that summary judgment on qualified
immunity grounds is improper “if genuine issues of material fact exist as to whether the officer
committed acts that would violate a clearly established right”).

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Defendants Niffenegger and Purdy argue that summary judgment is proper on
Durham’s federal claims because their conduct did not violate the constitutional rights of
Durham.

The Court discusses each of Durham’s federal claims against Defendants

Niffenegger and Purdy in turn.
i.

Unreasonable Search and Seizure.

In disputing probable cause, Durham claims Defendants Niffenegger and Purdy relied
upon, and made, false statements in the affidavits supporting the search warrants against him.
The Court finds Durham’s claims are unsupported.
The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. CONST.
AMEND. IV. The Sixth Circuit instructs that:
The probable cause requirement . . . is satisfied if the facts and circumstances are such
that a reasonably prudent person would be warranted in believing that an offense had
been committed and that evidence thereof would be found on the premises to be
searched.
Green v. Reeves, 80 F.3d 1101, 1106 (6th Cir. 1996) (quoting United States v. Besase, 521 F.2d
1306, 1307 (6th Cir. 1975)). A finding of probable cause does not require certainty or a
preponderance of the evidence. Illinois v. Gates, 462 U.S. 213, 235 (1983). Rather, the task of
the issuing magistrate is “simply to make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit before him . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” United States v.
Glowacki, No. 22-3279, 2023 WL 179887, at *3 (6th Cir. Jan. 13, 2023) (quoting Gates, 462
U.S. at 238). The reviewing court is “tasked only with ensuring that the magistrate had a
‘substantial basis for . . . concluding that probable cause existed’ based on the ‘totality of the
circumstances.’” Id. (quoting Gates, 462 U.S. at 236, 238 (cleaned up)).

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To determine the question of qualified immunity, this Court must determine whether
the warrant application is so lacking in indicia of probable cause as to render official belief in
its existence unreasonable. Malley v. Briggs, 475 U.S. 335, 343–45 (1986). “While we look at
the facts in the light most favorable to the plaintiff, the facts we are looking at are those known
to [the defendants] when [they] sought the warrant.” Hale v. Kart, 396 F.3d 721, 724–25 (6th
Cir. 2005). “We apply a standard of objective reasonableness.” Id. at 725.
In § 1983 actions, an officer ordinarily receives qualified immunity if they rely on a
judicially secured warrant. Malley, 475 U.S. at 343–45. Therefore, we must first determine
whether the warrants are so lacking in the indicia of probable cause that the reliance of
Defendants Niffenegger and Purdy on the warrants was unreasonable.

Because the

Defendants’ affidavits provided the sole basis for the warrants, we must evaluate the
sufficiency of the affidavit.
a.

The Affidavits are Sufficient.

Affidavits do not have to be perfect, nor do they have to provide every specific piece
of information to be upheld:
Affidavits are not required to use magic words, nor does what is obvious in context
need to be spelled out; if a CI [(i.e., confidential informant)] saw guns, he is not
required to explain how he knew what a gun looks like. Nor is an affidavit required
to present proof that would without question withstand rigorous crossexamination. . . . Taken as a whole, the affidavit provided sufficient facts from which
the magistrate could draw an independent conclusion as to the probability (certainty
is not required) of what it alleged a search would disclose.
United States v. Allen, 211 F.3d 970, 976 (6th Cir. 2000) (en banc). In addition, we look at
warrants, and, in this case, the affidavit supporting the warrant, using a totality of the
circumstances test. Gates, 462 U.S. at 230–31. The totality of the circumstances test requires
us to evaluate the probabilities of finding criminal activities based on the evidence provided

17

in the affidavit, as opposed to requiring that the evidence in the affidavit guarantees the
discovery of criminal activity. Id.
In this case, the affidavits are sufficient. The affidavits detail how a confidential
informant – Sentel Brooks – indicated that he has sold stolen property to Durham at his
Games Galore location in Lebanon, Ohio, for years. Docs. 144-5 and 144-6. The affidavits
describe how Brooks and Defendant Purdy repeatedly sold merchandise, which was
represented as stolen, to Durham. The affidavits also outline the subsequent verification of
the same merchandise for sale in Durham’s store by WCSO personnel, including Defendant
Niffenegger.

Furthermore, the affidavit also included Brooks’ statement that Durham

“offered to sell [Mr. Brooks] firearms if he was interested in purchasing any. He stated that
the guns [were] coming from Indiana.” Id.
All these specific facts present ample evidence of probable cause that stolen
merchandise could be found at Durham’s stores.

When looking at the totality of the

circumstances, the affidavit – and thus the resulting warrant – contain sufficient indicia of
probable cause to allow an officer or a judge to reasonably rely on it. Durham correctly argues
that even if the warrant is sufficient, however, Defendants Niffenegger and Purdy “cannot
rely on it if [they] knowingly made false statements in the affidavit such that, but for those
falsities, the warrant would not have been issued.” Hale, 396 F.3d at 726 (quoting Yancey v.
Carroll Cty., 876 F.2d 1238, 1244 (6th Cir. 1989)). Accordingly, we must engage in a second
inquiry: Did Durham provide evidence that would undermine reliance on the warrant by
Defendants?

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b.

There is No Evidence That Defendants Made False Statements
in Support of the Affidavits.

The Sixth Circuit has articulated a high bar a plaintiff must show to prove a defendant
deliberately falsified information in an affidavit supporting a warrant. “If the defendant does
succeed in making a preliminary showing that the government affiant engaged in ‘deliberate
falsehood’ . . . , the court must then consider the affidavit including the omitted portions and
determine whether probable cause still exists.” Hale, 396 F.3d at 726 (quoting United States v.
Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997)). Only if the plaintiff makes a “strong preliminary
showing that the affiant with an intention to mislead,” falsified or excluded critical information
from the affidavit may the court consider the affidavit and determine whether probable cause
exists. Id. (internal quotations omitted) (italics in original).
There is no evidence on the record that would establish Defendants Niffenegger and
Purdy’s intention to mislead the judge. Durham claims that Defendants had a recording that
directly contradicted the allegations and observations of Brooks. However, Durham does not
even state which allegation in the affidavit was contradicted by that recording.
Moreover, Durham argues that Defendants did not put forth enough effort to
corroborate the testimony of Brooks that he had sold Durham stolen property before the
investigation and Durham offered to sell the Brooks guns.

“Such a claim is not

enough . . . because it does not speak to [Defendants’] intent to mislead, it only speaks to the
thoroughness of [their] investigation.” Hale, 396 F.3d at 727. As a result, on this basis alone,
Defendants Niffenegger and Purdy are entitled to qualified immunity in relation to Durham’s
unreasonable search and seizure claim.

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ii.

Excessive Force.

Durham alleges “that it was unreasonable for officers to enter his store with guns
brandished, and . . . for officers to point a cocked and loaded shotgun in his face during a
search for video games.” Doc. 173, PageID 3441. Niffenegger and Purdy argue they are
entitled to qualified immunity as to Durham’s excessive use of force claim. Doc. 179,
PageID 3566–68. The Court must determine both whether Niffenegger and Purdy violated
Durham’s constitutional rights and whether the right was “clearly established.” Brown v.
Lewis, 779 F.3d 401, 411 (6th Cir. 2015).
The Fourth Amendment prohibits unreasonable searches and seizures. U.S. CONST.
AMEND. IV. This includes prohibiting the use of excessive force in effectuating an arrest.
Goodwin v. City of Painesville, 781 F.3d 314, 321 (6th Cir. 2015). The Court evaluates “whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. (quoting
Graham v. Connor, 490 U.S. 386, 397 (1989)). In other words, an officer’s subjective beliefs
are irrelevant. See Est. of Hill by Hill v. Miracle, 853 F.3d 306, 312 (6th Cir. 2017).
Beyond that, the force is “judged from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight” and “requires a careful balancing of the
nature and quality of the intrusion on the individual’s Fourth Amendment interests against
the countervailing governmental interests at stake.” Goodwin, 781 F.3d at 321. The Court
also must remain cognizant that “[p]olice officers routinely face ‘tense, uncertain, and rapidly
evolving’ situations that force split-second judgments about the degree of force required.”
Reich v. City of Elizabethtown, 945 F.3d 968, 978 (6th Cir. 2019) (quoting Graham, 490 U.S. at
396–97).

20

The Sixth Circuit has recognized that pointing a gun at an individual for an extended
period can constitute excessive force under the Fourth Amendment. See Binay v. Bettendorf,
601 F.3d 640, 650 (6th Cir. 2010). In Binay, the Sixth Circuit held that officers were not
entitled to qualified immunity where the officers held plaintiffs at gunpoint for an hour after
they were handcuffed, plaintiffs had no criminal record, cooperated throughout the ordeal,
posed no immediate threat to officers, and did not resist arrest or attempt to flee. Id.
Conversely, in Marcilis v. Twp. Of Redford, the Sixth Circuit held that the officers were
entitled to qualified immunity where: (1) the police officers threw a plaintiff onto a couch,
causing bruises; (2) the police officers threatened to hit plaintiff in the face with a gun; (3) the
police officers pushed a plaintiffs “violently” to the floor despite the fact that he was visibly
bandaged; (4) the police officers pointed guns at plaintiffs for thirty minutes; (5) the police
officers handcuffed plaintiffs for ten minutes; and (6) the federal agents and police officers
wore combat gear or masks. 693 F.3d 589, 599 (6th Cir. 2012). The Marcilis court held that
the police officers could have reasonably believed that their conduct was a lawful means of
exercising command of the situation, given the violence and frantic efforts to conceal or
destroy evidence often associated with a drug raid. Id.
Durham’s excessive force claim fails for two reasons. First, Durham provides no
evidence that Defendants Niffenegger and Purdy pointed firearms at him when executing the
search warrant of his store. During his deposition, Durham indicated that he does not know
the name of the officer or officers who pointed guns at him. Doc. 142, PageID 884. Durham
cannot pursue claims against unnamed “Does” that are not parties to this case. See Bufalino
v. Michigan Bell Tel. Co., 404 F.2d 1023, 1029 (6th Cir. 1968) (holding that the plaintiff cannot
pursue claims against “the fictitious designation of ‘Does.’”).

21

Second, the force used by the WCSO officers was not excessive. Durham alleges that
“[t]he first [officer] came in and cocked the shotgun at,” him and ordered him on the ground.
Doc. 142, PageID 884. Durham states that he was on the ground for less than a minute. Id.
And was subsequently handcuffed for about ten minutes. Id. at PageID 887. He further
alleges that guns were pointed at him during this time, and he suffered no physical harm. Id.
at PageID 885, 888. As noted above, the Sixth Circuit has previously viewed situations more
severe than what Durham experienced here as a lawful means of exercising command.
Marcilis, 693 F.3d at 599 (holding that officers’ actions were not excess where officers pointed
guns at plaintiffs for thirty minutes and physically harmed plaintiff). Moreover, the intel
available to the officers indicated that the use of firearms during Durham’s apprehension may
be necessary because Durham may be armed. Doc. 144-5, PageID 1452.
As such, the Court finds that Defendants Niffenegger and Purdy’s actions were
objectively reasonable considering the facts and circumstances confronting them. Defendants
are thus entitled to summary judgment on Durham’s excessive force claim.
iii.

First Amendment.

Durham argues that his arrest constitutes a First Amendment retaliation. However,
since – as found above – the officers had probable cause to detain Durham, his First
Amendment claim must fail. See Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019) (“The plaintiff
pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the
arrest.”).
Even if Durham could demonstrate a lack of probable cause, he “‘must [then] show
that the retaliation was a substantial or motivating factor behind the [arrest], and, if that
showing is made, the defendant can prevail only by showing that the [arrest] would have been

22

initiated without respect to retaliation.’” Id. at 1725 (quoting Lozman v. City of Riviera Beach,
138 S. Ct. 1945, 1952–53 (2018)). Durham falls short on those requirements as well. The
record is devoid of any evidence that Defendants Niffenegger and Purdy were motivated to
retaliate against Durham because of his speech; rather, the officers acted in response to an
illegal fencing operation that Durham allegedly operated.

Defendants are entitled to

summary judgment on this claim.
iv.

Malicious Prosecution.

Durham next raises a malicious prosecution claim, though it is unclear whether the
claim is brought under state or federal law. See Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir.
2007) (analyzing a malicious prosecution claim under both state and federal law where the
court was uncertain under which law the claim was brought). The Supreme Court of Ohio
instructs that:
In order to state a cause of action for malicious prosecution in Ohio, four essential
elements must be alleged by the plaintiff: (1) malicious institution of prior proceedings
against the plaintiff by defendant, (2) lack of probable cause for the filing of the prior
lawsuit, (3) termination of the prior proceedings in plaintiff’s favor, and (4) seizure of
plaintiff’s person or property during the course of the prior proceedings.
Robb v. Chagrin Lagoons Yacht Club, Inc., 75 Ohio St. 3d 264, 264, 662 N.E.2d 9 (1996) (internal
ellipses omitted). Although the elements of a federal claim for malicious prosecution remain
uncertain, “[w]hat is certain, however, is that such a claim fails when there was probable
cause to prosecute, or when the defendant did not make, influence, or participate in the
decision to prosecute.” Fox, 489 F.3d at 237.
Durham fails to adequately allege, let alone demonstrate through evidence, that
Defendants “instituted” the criminal proceedings against Durham in the sense that they
made, influenced, or participated in the decision to prosecute. The decision to prosecute was

23

made by the Warren County prosecutor and not Defendants. Officers “cannot be held liable
for malicious prosecution when they did not make the decision to prosecute the plaintiff.”
McKinley v. City of Mansfield, 404 F.3d 418, 444 (6th Cir. 2005) (quoting Skousen v. Brighton
High Sch., 305 F.3d 520, 529 (6th Cir. 2002)) (internal alterations omitted). Accordingly,
Defendants are entitled to summary judgment on Durham’s malicious prosecution claim.
v.

Due Process.

Durham also argues that he was deprived of due process in violation of the Fourth
Amendment. However, it is not clear what exactly Durham alleges in support of this claim.
To establish a procedural due process violation, Durham must demonstrate that: (1) a
constitutionally protected life, liberty, or property interest is at stake; (2) Defendants
Niffenegger and Purdy deprived him of this protected interest; and (3) he was not afforded
adequate procedural rights prior to depriving his protected interest. See Gregorcic v. City of
Stow, No. 99-3781, 2000 WL 1140520, at *3 (6th Cir. Aug. 3, 2000) (citing American Mfrs.
Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 60–61 (1999); Hahn v. Star Bank, 190 F.3d 708, 716
(6th Cir. 1999)).
Durham argues that his due process rights were violated because he was prosecuted
without probable cause. Durham does not cite to any authority supporting this claim. And,
as previously found, the WCSO had probable cause in executing the search warrant that led
to Durham’s arrest. Defendants Niffenegger and Purdy are therefore entitled to summary
judgment on Durham’s due process claim.

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C.

Defendant Christian is not a State Actor Under Section 1983.

Durham argues that Defendant Christian, an investigator for Defendant Target, is a
state actor under 42 U.S.C. § 1983. Defendant Christian argues that Durham’s claims are
barred because he does not fit the bill. The Court agrees with Christian.
Section 1983 provides a remedy against any person acting under color of state law for
“deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of
the United States. 42 U.S.C. § 1983. Only claims against “state actors” are eligible for relief
under the statute. Lugar v. Edmondson Oil Co., 457 U.S. 922, 940 (1982).
To determine whether a private entity qualifies as a state actor, the Court typically asks
whether their “conduct is fairly attributable to the State.” Filarsky v. Delia, 566 U.S. 377, 383
(2012) (quotation omitted). In addition, the Supreme Court has used other helpful inquiries
to determine whether an entity should be treated as a state actor under § 1983. Such as: did
the State compel the defendant to act the way it did? See Brentwood Acad. v. Tenn. Secondary
Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001). Was there a symbiotic relationship or nexus
between the defendant and the State? See Rendell-Baker v. Kohn, 457 U.S. 830, 842–43 (1982).
Did the defendant serve a public function traditionally handled just by the State? See Jackson
v. Metro. Edison Co., 419 U.S. 345, 352 (1974).
Application of these tests to the conduct of a private entity, however, is relevant only
in cases in which there are no allegations of cooperation or concerted action between state
and private actors. Cooper v. Parrish, 203 F.3d 937, 952 n.2 (6th Cir. 2000) (“If a private party
has conspired with state officials to violate constitutional rights, then that party qualifies as a
state actor and may be held liable pursuant to § 1983.”); Moore v. City of Paducah, 890 F.2d
831, 834 (6th Cir. 1989) (holding that individuals who conspire with state actor to deprive

25

individuals of their federally-protected rights may be found to have acted under color of state
law for purposes of § 1983 liability). Private persons may be held liable under § 1983 if they
willfully participate in joint action with state agents. Dennis v. Sparks, 449 U.S. 24, 27–28
(1980); see also United States v. Price, 383 U.S. 787, 794 (1966) (stating that to act under color
of law does not require that the accused be an officer of the State; rather, it is enough that he
is a willful participant in joint activity with the State or its agents); Hooks v. Hooks, 771 F.2d
935, 943 (6th Cir. 1985) (“Private persons jointly engaged with state officials in a deprivation
of civil rights are acting under color of law for purposes of § 1983.”).
Importantly, it requires more than mere cooperation with a state investigation for a
private person to become a state actor. Lansing v. City of Memphis, 202 F.3d 821, 831 (6th Cir.
2000) (finding that a corporation was not a state actor, even though it cooperated with—and
provided economic benefit to—the city); Boykin v. Van Buren Twp., 479 F.3d 444, 452 (6th Cir.
2007) (“Boykin fails to direct us to any authority from this Circuit for the proposition that a
private security guard, who merely places a call to police that a suspected shoplifting has
occurred, but in no way directly confronts the suspect, can be deemed a state actor for
purposes of § 1983.”); Williams v. Walmart’s, President, No. 1:18-cv-518, 2018 WL 8415547, at
*4 (S.D. Ohio Sep. 21, 2018) (“A private actor does not become a state actor merely by placing
a call to police concerning a suspected shoplifting.”).
Durham claims Defendant Christian and the State engaged in a conspiracy to violate
his constitutional rights, making Christian a state actor.7 To succeed on his claim, Durham

7

Durham points to Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) and Hill v. Langer, 86 F. App’x 163 (6th Cir.
2004), for the proposition that a private party’s joint participation with a state actor in a conspiracy to
discriminate constitutes a state action for purposes of 42 U.S.C. §1983. However, the Sixth Circuit “has
confined the Lugar ‘joint action’ test to challenged prejudgment attachment procedures.” Revis v. Meldrum, 489
F.3d 273, 292 (6th Cir. 2007) (citing Hill, 86 F. App’x at 163) (emphasis in original).

26

must show that “(1) a single plan existed, (2) the conspirators shared a conspiratorial objective
to deprive [Durham] of his constitutional rights, and (3) an overt act was committed.” Chaplin
v. Anderson, No. 18-12108, 2019 WL 1219412, at *3 (E.D. Mich. Mar. 15, 2019) (citing Revis,
489 F.3d at 290).
Durham has not established a conspiracy between Defendant Christian and the
WCSO because his constitutional rights were not violated.8

See supra, Section III.B.

Accordingly, the Court need not engage with other elements of Durham’s § 1983 claims
against Christian, and Christian is entitled to summary judgment on the same.
IV.

CONCLUSION
For the reasons stated, the Court GRANTS the motions for summary judgment of

Defendants Walmart and Scott Hollopeter, Target and Christian, and Detectives Niffenegger
and Purdy (Docs. 163, 167, 169) and DISMISSES Plaintiff Durham’s Amended Complaint
(Doc. 40) WITH PREJUDICE. The Court ORDERS the clerk to ENTER JUDGMENT
and TERMINATE this matter from the docket.
SO ORDERED.
Date: December 6, 2023

8

_____________________________________
Hon. Jeffery P. Hopkins
United States District Judge

Durham’s federal civil conspiracy claim against Defendants also fails for the same reason: Durham’s
constitutional rights were not violated. See Hooks, 771 F.2d at 943–44 (holding that a civil conspiracy to violate
the plaintiff’s civil rights cannot stand where the underlying civil rights claim is unsupported).

27