Ruff-El v. Nicholas Financial Inc. et al

Filing 90

OPINION AND ORDER granting 79 Motion for Summary Judgment. All federal-law based claims are dismissed w/prejudice. The state law claims are dismissed w/out prejudice. All other pending motions (# 72 , # 73 , # 75 & # 86 ) are denied as moot. Signed by Magistrate Judge Terence P Kemp on 10/1/2012. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gerry Ruff-El,

:

Plaintiff,

:

v.

:
:

Nicholas Financial, Inc.,
et al.,
Defendants.

Case No. 2:11-cv-618
Magistrate Judge Kemp

:
OPINION AND ORDER

This case, in which all parties have consented to
disposition by the Magistrate Judge, see 28 U.S.C. §636(c), is
before the Court to consider the motion for summary judgment
filed by the City defendants.

Mr. Ruff-El has not responded to

this motion, nor has he requested any extension of time for doing
so and the time to respond has now passed.

For the following

reasons, the motion for summary judgment (#79) will be granted.
Further, all other pending motions, the majority of which have
been filed by the City defendants, will be denied as moot, and
this case will be dismissed.
I.

Background

Plaintiff Gerry Ruff-El filed this action as a result of the
attempted seizure of his property by individuals believed to be
agents of defendant Nicholas Financial, Inc.

In addition to

Nicholas Financial, the complaint named as defendants Todd
Stonewall, Peter L. Vosotas, the Columbus Police Department and
several police officers including then Chief of Police Walter L.
Distelweig, Travis D. Fisher, Joshua S. Daugherty, Lisa M. Ickes,
Austin C. Summers, Matt E. Harris, Larry E. Ferguson, and John A.
Sullivan (the City defendants), Gregory Green and Gregory Swartz.
Mr. Ruff-El failed to complete service with respect to Mr. Green

and Mr. Swartz.
On January 26, 2012, the Court dismissed all claims against
Todd Stonewall, Nicholas Financial, Inc. and Peter L. Vosotas
(the Nicholas defendants) in response to their motion.

In

dismissing these claims, the Court noted that Mr. Ruff-El had
failed to state a claim against these defendants under 42 U.S.C.
§1983 because they were private parties who could not be
considered state actors.

Further, the Court dismissed Mr. Ruff-

El’s claim under 42 U.S.C. §1985(3) because he had failed to
allege that any violations were motivated by class-based animus.
With respect to Mr. Ruff-El’s claims for violations of federal
criminal statutes, 18 U.S.C. §242 and §1652, the Court dismissed
these claims because no private right of action in favor of
private individuals exists.

Because Mr. Ruff-El had failed to

state a federal claim and no independent jurisdiction existed
over his state law claims, the Court dismissed the state law
claims without prejudice.

Mr. Ruff-El’s motion for

reconsideration of this order, filed April 4, 2012, was denied.
On the basis of that order, the City defendants moved for
dismissal of Mr. Ruff-El’s claims under 42 U.S.C. §1985 and 18
U.S.C. §242 and §1652 against them.

The Court granted this

motion by order dated March 14, 2012.
On February 10, 2012, Mr. Ruff-El filed a motion to amend
his complaint.

In that filing, Mr. Ruff-El again sought to

assert claims under 42 U.S.C. §1983 and 18 U.S.C. §242 and §1652
against the Nicholas defendants.

He also sought to assert a

claim under the Fair Debt Collection Practices Act, 15 U.S.C.
1692d and various state law claims.

Further, he sought to

include an additional Nicholas Financial employee, Ralph
Finkenbrink, as a defendant.

Mr. Ruff-El’s motion to amend was

denied by order dated March 22, 2012.
On August, 8, 2012, Mr. Ruff-El voluntarily dismissed his
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claims against Mr. Green and Mr. Swartz.

Consequently, the only

parties remaining in this case are the City defendants.

Further,

the only remaining claims against these defendants are a claim
under 42 U.S.C. §1983 and various state law claims.
II. Legal Standard
Summary judgment is not a substitute for a trial when
facts material to the Court's ultimate resolution of the case
are in dispute.

It may be rendered only when appropriate

evidentiary materials, as described in Fed. R. Civ. P. 56(c),
demonstrate the absence of a material factual dispute and the
moving party is entitled to judgment as a matter of law.
Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464
(1962).

The moving party bears the burden of demonstrating

that no material facts are in dispute, and the evidence
submitted must be viewed in the light most favorable to the
nonmoving party.
(1970).

Adickes v. S.H. Kress & Co., 398 U.S. 144

Additionally, the Court must draw all reasonable

inferences from that evidence in favor of the nonmoving
party.

United States v. Diebold, Inc., 369 U.S. 654 (1962).

The nonmoving party does have the burden, however, after
completion of sufficient discovery, to submit evidence in
support of any material element of a claim or defense on
which that party would bear the burden of proof at trial,
even if the moving party has not submitted evidence to negate
the existence of that material fact.

See Celotex Corp. v.

Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242 (1986).

Of course, since "a party seeking

summary judgment ... bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact,"
Celotex, 477 U.S. at 323, the responding party is only required
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to respond to those issues clearly identified by the moving party
as being subject to the motion.

It is with these standards in

mind that the instant motion must be decided.
III.

Analysis

As noted above, Mr. Ruff-El has not responded to the motion.
A non-movant's failure to respond to a motion for summary
judgment does not itself warrant a grant of summary judgment in
the moving party's favor.

Federal Rule of Civil Procedure 56(e)

provides:
e) If a party fails to properly support an assertion of
fact or fails to properly address another party's
assertion of fact as required by Rule 56(c), the court
may:
....
(2) consider the fact undisputed for purposes of the
motion;
(3) grant summary judgment if the motion and supporting
materials—including the facts considered
undisputed—show that the movant is entitled to it;
It is well-settled that, “[a] party is never required to
respond to a motion for summary judgment in order to prevail
since the burden of establishing the nonexistence of a material
factual dispute always rests with the movant.”

Smith v. Hudson,

600 F.2d 60, 64 (6th Cir. 1979) (citing Adickes v. S.H. Kress &
Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).

That

is, the non-movant's failure to respond does not relieve the
movant of its burden to establish that “the moving party is
entitled to [a judgment as a matter of law .]” Fed.R.Civ.P.
56(e)(3); see also Scipio v. Sony Music Entm't, Inc., 173 F.
App'x 385, 393 (6th Cir. 2006).

As a result, Mr. Ruff-El’s

failure to respond, standing alone, is not determinative of
whether summary judgment is appropriate.

Accordingly, the Court

will examine the City defendants’ motion and supporting materials
to determine whether they are entitled to summary judgment.
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A.

Facts

In support of their motion, the City defendants have
submitted a significant amount of evidentiary material.

This

material includes an affidavit from every named City defendant
with the exception of former Police Chief Distelzweig and
affidavits from two police officers responding to the incident
giving rise to the complaint who are not named as defendants.
They have also submitted various documents which would have been
prepared at or near the time of the incident and are documents
kept in the regular course of the Columbus Police Department’s
operations.

Finally, they have submitted a compact disc

containing several audio files.

As noted above, Mr. Ruff-El has

not responded to the motion for summary judgment and has not
filed any evidentiary material setting forth any facts which
could be considered by this Court.

Consequently, the following

facts, taken from the City defendants’ exhibits, are undisputed.
On June 26, 2011, Gregory Green and Gregory Swartz arrived
at Mr. Ruff-El’s residence to repossess his car.

A disagreement

over the necessary paperwork culminated in a physical attack on
Mr. Green.

Mr. Green required immediate medical attention and

was transported by ambulance to a hospital. See City Defendants’
Exhibit 12.
Mr. Ruff-El and Mr. Swartz called 911.

Officer Shana Reader

of the Columbus Police Department, who is not named as a
defendant in this case, was the first police officer to arrive on
the scene.

See Reader Affidavit ¶29.

Through her initial

investigation, she concluded that Mr. Ruff-El had either
assaulted or feloniously assaulted Mr. Green. Id. at ¶51.

As a

result, she informed Mr. Ruff-El he would be detained during her
investigation and secured him in the back of her cruiser without
force.

Id. at ¶¶42-44.

When Columbus Police Officer Marcus
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Miller arrived, he decided to handcuff Mr. Ruff-El for the
remainder of the investigation.

See Miller Affidavit ¶33.

Officer Miller also is not named as a defendant in this action.
Based on the results of Mr. Green’s assessment at the
hospital, detectives from the Columbus Assault Squad chose not to
treat the matter as a felonious assault.

Rather, they left it to

the patrol officers to determine whether to arrest Mr. Ruff-El
and file misdemeanor assault charges against him or whether to
release him and advise Mr. Green of the process for filing such
charges himself.

The officers chose to release Mr. Ruff-El

without a formal arrest.

See Reader Affidavit ¶¶74-78, Miller

Affidavit ¶¶47-51, Daugherty Affidavit ¶¶29-32.

During this

time, Mr. Ruff-El was detained for approximately 90 minutes but
not more than two hours.

See Reader Affidavit ¶¶53-56.

Officer Josh Daugherty, named as a defendant, arrived on the
scene some time after Mr. Ruff-El had been detained in the back
of Officer Reader’s cruiser.

See Daugherty Affidavit ¶27.

Officer Daugherty was not involved in any decision to detain or
handcuff Mr. Ruff-El. Id. at ¶¶27-28. He was present when
Officers Miller and Reader decided they would not be filing
assault charges against Mr. Ruff-El but instead would be leaving
that decision to Mr. Green.

Id. at ¶30.

He witnessed Mr. Ruff-

El being removed from the cruiser and having his handcuffs
removed but does not believe he had any physical contact with Mr.
Ruff-El.

Id. at ¶32.

Officer Lisa Ickes, named as a defendant, also arrived on
the scene some time after Mr. Ruff-El had been detained in the
back of Officer Reader’s cruiser.

See Ickes Affidavit ¶¶29-30.

During the fifteen minutes she was there, Mr. Ruff-El was not
handcuffed but was making a great deal of noise.
¶34.

Id. at ¶31,

When another officer arrived on the scene, Officer Reader

informed her that she could leave.
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Id. at 38. She took no part

in any decisions regarding, nor had any physical contact with,
Mr. Ruff-El.

Id. at ¶¶41-44.

Officer Austin Summers, named as a defendant, did not have
any contact with Mr. Ruff-El in connection with the events on
June 26, 2011.

His involvement was limited to checking on Mr.

Green’s condition at the hospital.

See Summers Affidavit ¶18.

Similarly, Officer Travis Fisher, named as a defendant, did not
have any contact with Mr. Ruff-El.

While he was originally

dispatched to the incident, six minutes later while en route, he
was cleared from the run.

See Fisher Affidavit ¶16.

Further, Columbus Police Sergeants Larry Ferguson, John
Sullivan, and Matt Harris and former Columbus Police Chief Walter
Distelzweig had no involvement with the incident on June 26,
2011.

See Reader Affidavit ¶¶82-85.

Sgt. Ferguson is the direct

supervisor of Officers Daugherty and Summers and approved the
report prepared by Officer Miller.
32.

See Ferguson Affidavit ¶¶31-

Sgt. Sullivan was not on duty on that day, but had he been

he would have been the direct supervisor of Officer Ickes.
Sullivan Affidavit ¶15, ¶31.

See

Similarly, Sgt. Harris was not on

duty that day, but had he been he would have been the direct
supervisor of Officer Fisher.
B.

See Harris Affidavit ¶15, ¶31.

The Parties’ Positions

In the complaint, Mr. Ruff-El states his §1983 claim in this
way:
Second Claim for relief: VIOLATION OF 42 U.S.C.
SEC. 1983
Plaintiff restates and reiterates all of the
foregoing paragraphs of this complaint as if set forth
in full at his point.
At all relevant times herein, Plaintiff had a right
under the due process and equal protection clauses of
the state and federal constitutions not to be deprived
of his constitutionally protected interest in his
property.
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Defendants Nicholas Financial Inc. Attempted to take
plaintiff property without due process of law.
Defendant (Columbus police department and its officer)
did not come to the aid of Pl.
Defendant (Columbus police department and its officer)
did not give plaintiff equal protect of the law.
Defendants denied P1 rights, privileges, or immunities
secured by the United States Constitution and State
Constitution.
P1 deprived of his rights to equal protection of all
the laws
Plaintiff was deprived of due process of law.
Plaintiff was deprived of life liberty and happiness.
Pl was harmed, has incurred considerable legal debt
which would not otherwise have been incurred.
Pl has suffered the loss of confidence in and feelings
of betrayal by the justice system, shock, and emotional
scarring, all compensable as emotional distress, and
other damages.
Also relevant for purposes of the current summary judgment
motion is the following allegation found on page four of the
complaint under the heading “General Facts,”
Columbus Police Officer then place plaintiff under
arrest. Plaintiff remained under arrest for about one
hour.
Taking all of these allegations together, the City
defendants construe the complaint as attempting to assert a §1983
claim based on an alleged failure to prevent harm, deprivation of
property, a Fourth Amendment violation, and possibly excessive
use of force.

They argue that Mr. Ruff-El cannot succeed on his

§1983 claim for several reasons.

First, they contend that no

constitutional deprivation occurred here.

In support of this

position, they argue that there is no federal right to
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assistance, Mr. Ruff-El was not deprived of his property on June
26, 2011, there was probable cause to arrest him, and no force,
excessive or otherwise, was used against him.

Second, they

contend that the City of Columbus is not subject to municipal
liability because there was no deprivation and there is no
evidence that any alleged deprivation was the result of a
municipal custom, policy, or practice.

Third, they assert that

the individual defendants cannot be held liable in their official
capacities nor is there any proof of personal involvement such
that they could be held liable in their personal capacities.
Fourth, they argue that Mr. Ruff-El cannot prevail against
certain defendants under a supervisory liability theory.
Finally, they contend that they are entitled to qualified
immunity.

With respect to Mr. Ruff-El’s state law claims, the

City defendants recognize that the Court would likely decline to
exercise supplemental jurisdiction over these claims if the §1983
claim is dismissed, but set forth a number of reasons why the
claims cannot survive summary judgment.
C. Mr. Ruff-El’s §1983 Claim
To maintain an action under 42 U.S.C. §1983, a plaintiff
must demonstrate two elements: (1) that the alleged conduct was
committed by a person acting under color of state law; and (2)
that this conduct deprived the plaintiff of rights, privileges,
or immunities secured by the Constitution or laws of the United
States.

Graham v. NCAA, 804 F.2d 953, 957 (6th Cir. 1986),

citing Parratt v. Taylor, 451 U.S. 527, 535 (1981).

As set forth

below, Mr. Ruff-El has failed to create any genuine issue of
material fact with respect to the alleged deprivation of any
constitutional rights.
To the extent, as defendants suggest, that Mr. Ruff-El is
attempting to set forth a claim that the police were required to
assist him in defending the alleged repossession of his car,
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“[u]nless the police have a ‘special relationship’ with the
victim, the victim has no constitutional right to have the police
... intervene to protect him from the actions of private actors.”
Weeks v. Portage County Executive Offices, 235 F.3d 275 (6th Cir.
2000).

Moreover, the undisputed facts demonstrate that the

police responded to the incident at Mr. Ruff-El’s following the
911 call.

Consequently, the motion for summary judgment will be

granted as to any failure to assist claim.
Further, Mr. Ruff-El has not raised a genuine issue of
material fact regarding any deprivation of his property.

A

plaintiff asserting a Fourteenth Amendment property deprivation
claim must demonstrate that it resulted from either: “(1) an
established state procedure that itself violates due process
rights, or (2) a ‘random and unauthorized act’ causing a loss for
which available state remedies would not adequately compensate
the plaintiff.”

Warren v. City of Athens, 411 F.3d 697, 709 (6th

Cir. 2005), quoting Macene v. MJW, Inc., 951 F.2d 700, 706 (6th
Cir. 1991).

According to the City defendants, Mr. Ruff-El was

not deprived of his car on June 26, 2011.

Mr. Ruff-El has not

disputed this fact nor has he come forward with any other
evidence demonstrating the deprivation of any property as a
result of the incident, let alone any deprivation by anyone
acting under color of state law as required to prevail on a claim
brought under §1983.

Consequently, the motion for summary

judgment will be granted as to any due process claim.
The City defendants contend, that, at least with respect to
them, the focus of Mr. Ruff-El’s 1983 claim seems to be his
belief that he was arrested without probable cause.

Certainly,

any arrest without probable cause violates the Fourth Amendment.
Crockett v. Cumberland College, 316 F.3d 571, 580 (6th Cir.2003)
citing Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001).

“An

officer has probable cause when ‘the facts and circumstances
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known to the officer warrant a prudent man in believing that an
offense has been committed.’” Miller v. Sanilac Cnty., 606 F.3d
240, 248 (6th Cir. 2010) (quoting Henry v. United States, 361
U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)); see also
Radvansky v. City of Olmstead Falls, 395 F.3d 291, 305 (6th Cir.
2005) (an officer has probable cause when he discovers reasonably
reliable information that a suspect has committed a crime)
(internal citations omitted).

The probable cause analysis is

performed “from the perspective of a reasonable officer on the
scene, rather than with the 20/20 vision of hindsight.” Klein,
275 F.3d at 550 (citation and internal quotation marks omitted).
In his complaint, Mr. Ruff-El asserts that he was arrested
and remained under arrest for approximately one hour.

For

purposes of their motion for summary judgment, the City
defendants do not dispute Mr. Ruff-El’s belief that he was
arrested.
“‘Whether an officer is authorized to make an arrest
ordinarily depends, in the first instance, on state law.’”
Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007), quoting
Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).

According to

Officer Reader’s affidavit, she detained Mr. Ruff-El based on her
conclusion that Mr. Ruff-El had committed an assault on Mr.
Green.

Reader Affidavit at ¶42.

In Ohio, a person commits

assault by knowingly or recklessly causing or attempting to cause
physical harm to another.

O.R.C. §2903.13.

The causing or

attempted causing of serious physical harm constitutes felonious
assault.

O.R.C. §2903.11.

Consequently, Officer Reader had

probable cause to arrest Mr. Ruff-El if, on the basis of the
facts known to her, she could reasonably conclude that Mr. RuffEl assaulted Mr. Green.
In support of their position that Officer Reader had the
required probable cause, the City defendants detail 24 facts
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known by Officer Reader prior to and during her time on the scene
from which she reasonably concluded that Mr. Ruff-El had
assaulted Mr. Green.

In her affidavit, Officer Reader summarizes

the circumstances she encountered leading her to detain Mr. RuffEl as follows:
41. At the time, I had been presented with: (a) victim
who had been beaten so severely that he had fluid
leaking from his head and required immediate hospital
attention; (b) a suspect who was in a hostile and
agitated state and who had apparently inflicted the
victim’s injuries with his bare hands; (c) a suspect
who had removed evidence from the scene; (d) a suspect
who had at least indicated a willingness to remove
himself from the scene.
As noted above, Mr. Ruff-El has provided no evidence to
dispute Officer Reader’s description of the information on which
she based her decision to detain, or, from Mr. Ruff-El’s
perspective, arrest him.

The facts presented by Officer Reader,

even construed in the light most favorable to Mr. Ruff-El,
provide a basis on which she reasonably could conclude that Mr.
Ruff-El had committed an assault.

Because no genuine issue of

material fact exists on this issue, the motion for summary
judgment will be granted as to any Fourth Amendment claim
asserted by Mr. Ruff-El.
The City defendants also construe Mr. Ruff-El’s complaint as
attempting to state a claim of excessive force.

To the extent

that Mr. Ruff-El’s complaint can be read in this way, both
Officers Reader and Miller state in their affidavits that they
did not employ any force during the incident.

See Reader

Affidavit §§40-44, 61-63; Miller Affidavit §§33-36.
has presented no evidence to the contrary.

Mr. Ruff-El

Consequently, to the

extent that Mr. Ruff-El may be suggesting he was subjected to
excessive force, the motion for summary judgment will be granted.
Finally, the Court notes that Mr. Ruff-El refers, without

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any specificity, to a violation of his equal protection rights in
his §1983 claim.

“The central purpose of the Equal Protection

Clause of the Fourteenth Amendment is the prevention of official
conduct discriminating on the basis of race.”
Davis, 426 U.S. 229, 239 (1976).

Washington v.

It prohibits the States from

making distinctions that burden a fundamental right, target a
suspect class, or intentionally treat one differently from others
similarly situated without any rational basis for the difference.
Vacco v. Quill, 521 U.S. 793, 799 (1997).

In order to prevail on

any equal protection claim against the City defendants, Mr. RuffEl must show that they acted with a discriminatory purpose, which
means proving that they undertook a course of action “because of,
not merely in spite of, the action's adverse effects upon an
identifiable group.”

Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)

(internal quotation marks omitted).

Mr. Ruff-El has not alleged

any discriminatory purpose, let alone come forward with any
evidence of such purpose, as required to prevail on an equal
protection claim.

Consequently, the City defendants are entitled

to summary judgment on any equal protection claim.
In summary, Mr. Ruff-El has failed to raise any genuine
issue of material fact as to the deprivation of his
Constitutional rights as required to succeed under §1983.
Because the motion for summary judgment will be granted on this
ground, the Court will not consider the other arguments raised by
the City defendants in defense of Mr. Ruff-El’s §1983 claim.
IV.

State Law Claims

Mr. Ruff-El also has set forth a number of state law tort
claims in his complaint including breach of fiduciary duty,
assault, battery, and fraud.

To the extent that any of these

state law claims are directed to the City defendants, because the
motion for summary judgment will be granted as to the §1983
claim, the Court will decline to exercise supplemental
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jurisdiction over these claims.

See Musson Theatrical, Inc. v.

Fed. Express Corp., 89 F.3d 1244, 1254–55 (6th Cir. 1996)
(“When all federal claims are dismissed before trial, the balance
of considerations usually will point to dismissing the state law
claims”).
V.

Remaining Motions

The City defendants have three discovery motions pending
including a motion to compel or motion for sanctions based on Mr.
Ruff-El’s failure to participate in discovery (#72), a motion to
deem certain matters admitted (#73), and a motion for sanctions
based on Mr. Ruff-El’s failure to attend his scheduled deposition
(#75).

Also pending is Mr. Ruff-El’s motion to strike (#86).

Because the motion for summary judgment will be granted in its
entirety, all of these motions will be denied as moot.
VI.

Conclusion

For the reasons stated above, the motion for summary
judgment (#79) is granted.

All federal-law based claims are

dismissed with prejudice.

The state law claims are dismissed

without prejudice.

All other pending motions (#72, #73, #75 and

#86) are denied as moot.

The Clerk is directed to enter judgment

in favor of the defendants.

/s/ Terence P. Kemp
United States Magistrate Judge

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