Lane v. City of Pickerington, Personnel Appeals Board et al

Filing 104

ORDER granting 67 Motion for Summary Judgment; granting in part and denying in part 69 Motion for Summary Judgment; denying 79 Motion to Strike ; denying as moot 88 Motion for Leave to File. Signed by Magistrate Judge Terence P. Kemp on 11/30/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Paul Lane,
:
Plaintiff,

Case No. 2:11-cv-0966
:

vs.
:

Magistrate Judge Kemp

City of Pickerington, et al.,
:
Defendants.
OPINION AND ORDER
This matter is before the Court on two motions for summary
judgment - one filed by defendants Mitch O’Brien and Linda Fersch
and one filed by plaintiff Paul Lane. Also before the Court are
Mr. Lane’s motion to strike the defendants’ motion for summary
judgment and Mr. O’Brien and Ms. Fersch’s motion for leave to
file instanter their motion for summary judgment. For the
following reasons, Mr. O’Brien’s and Ms. Fersch’s motion for
summary judgment will be granted and Mr. Lane’s motion for
summary judgment will be granted in part and denied in part. The
remaining motions will be resolved as set forth below.
I. Background
As this Court has explained previously, this case arises out
of Mr. Lane’s being fired from his job as an inspection
administrator for the City of Pickerington.

He was fired in

November 2009 for allegedly having pornographic images on his
work computer.

The procedural background of this case is

extensively detailed in the Court’s order of September 9, 2015,
see Lane v. City of Pickerington, 2015 WL 5244462 (S.D. Ohio
Sept. 9, 2015) (Doc. 77).
at great length here.

Consequently, it will not be repeated

For purposes of the current motions, the

relevant background is as follows.
On August 20, 2013, Magistrate Judge Mark R. Abel, the
previously assigned Magistrate Judge, granted separate motions

for summary judgment filed by the Pickerington Personnel Appeals
Board and the City of Pickerington and by individual defendants
Mitch O’Brien, Michael D. Taylor, and Linda Fersch.

In resolving

the motions, Magistrate Judge Abel determined that Mr. Lane
“received all the process to which he was entitled” and granted
summary judgment to the defendants on Mr. Lane’s claim that his
procedural due process rights had been violated.
Mr. Lane appealed Magistrate Judge Abel’s decision to the
Court of Appeals.

On November 14, 2014, the Court of Appeals

issued an opinion and order affirming in part, reversing in part,
and remanding the case for further proceedings.

The Court of

Appeals affirmed Judge Abel’s grant of summary judgment to
defendants on Mr. Lane’s post-deprivation due process claim and
his state-law defamation claim.

However, the Court of Appeals

reversed Judge Abel’s award of summary judgment to defendants on
Mr. Lane’s pre-termination due process claim and remanded the
case for further proceedings consistent with its opinion.
See Lane v. City of Pickerington, 588 Fed.Appx. 456 (6th Cir.
Nov. 14, 2014).
Following remand, Ms. Fersch and Mr. O’Brien filed their
current motion for summary judgment directed to Mr. Lane’s predeprivation due process claim. Shortly thereafter, Mr. Lane
filed his own motion asking for summary judgment “against
Defendants on his claim for a pre-deprivation due process
violation based on Defendants’ failure to show him the
photographs allegedly found on his computer, which denied
Plaintiff his due process right to a meaningful opportunity to
tell his side of the story.” As he notes in his reply, this
motion was directed to defendants City of Pickerington, Michael
Taylor, Ms. Fersch and Mr. O’Brien, but only Ms. Fersch and Mr.
O’Brien have responded.
Briefing on Ms. Fersch’s and Mr. O’Brien’s motion for
summary judgment was stayed pending a ruling on two motions in
-2-

limine filed by the City of Pickerington and the Personnel
Appeals Board. One of these motions sought to exclude evidence
of economic damages and the other sought to preclude Mr. Lane
from pleading an additional claim for violation of his procedural
due process rights based on alleged charges of sexual harassment.
The Court granted in part and denied in part the motion to
exclude evidence of economic damages and denied the motion
regarding the additional deprivation claim. Following this
order, the parties completed their briefing on Ms. Fersch’s and
Mr. O’Brien’s summary judgment motion. Mr. Lane’s motion for
summary judgment was fully briefed prior to the Court’s ruling on
the motions in limine.
Before addressing the motions for summary judgment, the
Court will turn briefly to the parties’ other motions. Mr. Lane
has moved to strike, on grounds of untimeliness and waiver, Ms.
Fersch’s and Mr. O’Brien’s motion for summary judgment.

A review

of this motion indicates that Mr. Lane raises these same
arguments in his response to the motion for summary judgment.
The Court will consider the arguments in the context of that
motion and, therefore, will deny the motion to strike.

Following

Mr. Lane’s motion to strike, Mr. O’Brien and Ms. Fersch filed a
motion for leave to file instanter their motion for summary
judgment.

That motion will be denied as moot since the motion

has been filed and will be decided on its merits.
II.

Facts

The facts of this case have been previously set forth at
some length by both this Court and the Court of Appeals.

In

connection with the motions for summary judgment, the parties
have not challenged the accuracy of these facts nor cited to any
additional facts they deem necessary for the Court’s
consideration of the motions.

Consequently, in addressing the

current motions, the Court will consider the facts as set forth
by the Court of Appeals in Lane v. City of Pickerington, supra,
-3-

at 459-61,, but will limit its focus to those relating to the
events surrounding Mr. Lane’s predeprivation due process hearing.
City policy prohibits viewing pornography on city
computers. The city’s internet guidelines prohibit
using a computer to view pornographic, obscene, and
sexually oriented images.
At approximately 8:20 a.m. on October 29, 2009,
Taylor gave Lane a predisciplinary notice of an October
30 predisciplinary hearing. Lane was not told that he
might be terminated or that he had the right to be
represented by an attorney at the hearing.
Taylor held the predisciplinary hearing which
began at 10:00 a.m. on October 30, 2009. Personnel
director Fersch was present, but did not participate.
Taylor asked Lane to explain the pornography found on
his computer. Lane asked to see the images found on
his computer, and Taylor refused to show them to him.
Lane testified that he told Taylor that he did not put
pornography on the computer. He further told Taylor
that “if there are any images, the only way I am aware
there could be any would be from checking my personal
email. You open something from a buddy and it’s an off
color joke and a picture of boobs.... I’m not aware of
ever opening up any emails on my work computer.”
Although his computer was password protected for login,
Lane testified that anyone could access his computer
during the work day because he was often out of his
office and his computer was on from 6:00-6:30 a.m. to
5:00-6:00 p.m.
During the hearing, Taylor told Lane he had the
option of resigning or being fired. Lane testified
that Taylor him that he could resign and receive a good
recommendation. Lane asked to consider the offer over
the weekend. On Monday, Lane told Taylor he would not
resign. Taylor testified that he alone made the
decision to fire Lane for looking at pornography on a
work computer.
On October 30, 2009, probably after the
predisciplinary hearing, Taylor asked the Sgt. Gene
Delp to witness Eric Vannatta examine Lane’s computer.
Vannatta ran a program to search for deleted files and
printed out a list of those files. Vannatta told Delp
he was looking for pornography. Delp’s recollection
was that Vannatta found some cookies from pornography
-4-

sites and history of internet visits to those sites.
However, he did not include those findings in his
report to Taylor, and that type of finding should have
been included in the report. Vannatta found U2
software on Lane’s computer, which could have been used
to run a web browser and other software without using
the computer’s hard drive. A Google Chrome browser was
also installed on the computer. That browser would
permit the user to browse the internet anonymously
without creating any entries on the internet history
file.
Delp reported to Taylor that Vannatta found
pornographic images that appeared to come from
pornographic websites. Taylor told him to write a
summary report. Delp wrote a report either that day or
the next. That report reads, in relevant part:
Eric Vannatta provided computer tools
which would recover deleted files, and showed
me how he had used this software to recover
appx. 30 files which indicated the computer had
been used to access pornography over the
internet. The files were still in the
computer’s hard drive, and were again located
by the software provided by Eric Vannatta among
42,000 images which had been deleted from the
computer. The pornography files were located
in the Internet Explorer 5 temporary files and
dated in 2005. The location of the files is
consistent with files stored during the use of
Internet Explorer. This is contrary to the
claim from Mr. Lane that the files were
delivered to his computer in an email. The
history of Internet Explorer was set to save
the internet browsing history for 999 days;
however the only history on the computer was
from seven days prior to his pre-disciplinary
meeting with Chief Taylor. I would conclude
that Mr. Lane had cleaned the computer prior to
examination by Eric and me.
I also discovered that “U-3" software had
been installed on the computer. This software
is included on some thumb drives and allows for
applications to be run directly from the thumb
drive. These applications can include internet
browsers, on-line chatting software, video
players, etc. and can access the internet
-5-

without leaving any trace on the computer hard
drive. Mr. Lane also had Google Chrome
installed on his computer. This program is an
internet browser capable of running in
“Incognito Mode.” This mode allows the user to
browse the internet without saving any history
or temporary files to the computer’s hard
drive.
On November 5, 2009, Lane picked up from personnel
director Fresch a letter terminating his employment.
Lane believes he may have been fired because he was
perceived to be “too close to Tim” Hansley. Plaintiff
has proffered no evidence supporting that speculation.
On November 2, 2009, Taylor issued a letter
terminating Lane that was [allegedly] based on false
and/or misleading statements made by Fersch and others.
On November 17, 2009, Lane submitted a request for
hearing before the Personnel Appeals Board. Defendants
notified plaintiff that he was not a classified
employee and that the PAB did not have jurisdiction
over his appeal. Lane was [allegedly] denied his right
to due process because defendants failed to comply with
Section 9.03 of Pickerington City Ordinances.
Defendants [allegedly] violated their clear duty to
provide Lane with post-deprivation due process to
conduct a hearing and to issue a determination on the
merits of his appeal.
III.

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.

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

-6-

(1970).

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
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.
IV.

Ms. Fersch’s and Mr. O’Brien’s Motion for Summary Judgment
A.

The Parties’ Positions

Based on the above facts, Ms. Fersch and Mr. O’Brien have
moved for summary judgment, contending that Mr. Lane cannot
establish their individual liability for his pre-deprivation due
process claim.

They explain that Mr. O’Brien was not involved in

Mr. Lane’s pre-disciplinary hearing or the decision to terminate
Mr. Lane.

As they see it, in order for Mr. O’Brien to be

individually liable, Mr. Lane must show that Mr. O’Brien, by his
own actions, violated Mr. Lane’s constitutional right to view the
evidence of pornography at his deprivation hearing.

Further,

they state that Ms. Fersch appeared at the pre-deprivation
hearing but did not participate and did not offer any opinion as
-7-

to whether she believed Mr. Lane should be fired.

Further, they

note that she was not a decision maker, she did not see the
pictures prior to either the hearing or Mr. Lane’s termination,
she did not prepare a report or discuss the pictures with the
investigators, and she did not prepare Mr. Lane’s termination
memorandum.
In response, Mr. Lane initially makes the same procedural
arguments offered in support of his motion to strike.

He does

not address the merits of defendants’ argument regarding
individual liability.

Instead, with respect to the issue of

individual liability, Mr. Lane contends that the Court of Appeals
has already held, in reversing the summary judgment holding and
without distinguishing among defendants, that all “Defendants had
the opportunity to provide Lane pre-deprivation process pursuant
to an established procedure - and indeed did provide a pretermination hearing, albeit a constitutionally inadequate one.”
In their reply, aside from challenging Mr. Lane’s suggestion
of their motion’s procedural irregularity, Mr. O’Brien and Ms.
Fersch note that Mr. Lane fails to address the merits of their
argument regarding their lack of personal involvement.

In

response to Mr. Lane’s position that the Court of Appeals has
already resolved this issue, they make two arguments.

First,

they contend that Mr. Lane’s argument based on the Court of
Appeals’ use of the plural “Defendants” is one of form over
substance, and the word was more likely to refer to Chief Taylor
and the City of Pickerington.

Further, they argue that the Court

of Appeals issued a general, rather than a limited, remand
allowing this Court the “‘authority to address all matters as
long as remaining consistent with the remand.’”
B.

Analysis

Initially, the Court does not find persuasive Mr. Lane’s
arguments that Ms. Fersch’s and Mr. O’Brien’s motion for summary
-8-

judgment is untimely or that they have waived their ability to
move for summary judgment on his pre-deprivation due process
claim.

First, as the defendants point out, no dispositive motion

deadline was set following remand.

Further, as they explain, it

was not until the Court of Appeals’ ruling that they understood
that Mr. Lane had pled a pre-deprivation due process claim.
Further, “[n]othing in Rule 56 prohibits the filing of successive
summary judgment motions, and this Court routinely entertains
such motions.”

Derungs v. Wal-Mart Stores, Inc., 162 F.Supp.2d

861, 867 (S.D. Ohio 2001).

Consequently, the Court will not deny

the motion for summary judgment on these grounds but will instead
turn to the merits of the motion.
Before doing so, however, the Court will address the scope
of the remand issued by the Court of Appeals as touched on by Ms.
Fersch and Mr. O’Brien.

In remanding this case, the Court of

Appeals stated:
We AFFIRM the district court’s grant of summary
judgment to Defendants on Lane’s post-deprivation due
process claim and his Ohio defamation claim, REVERSE
the award of summary judgment to Defendants on Lane’s
pre-termination due process claim, and REMAND for
further proceedings with this opinion.
Lane v. City of Pickerington, supra, at 469.
The mandate rule has been explained as follows:
Under the so-called mandate rule, “‘a district court is
bound to the scope of the remand issued by the court of
appeals.’” United States v. O’Dell, 320 F.3d 674, 679
(6th Cir. 2003)(quoting United States v. Campbell, 168
F.3d 263, 265 (6th Cir. 1999)). Remands may be general
or limited. Id. A limited remand “explicitly
outline[s] the issues to be addressed by the district
court and create[s] a narrow framework within which the
district court must operate. In contrast, general
remands give district courts authority to address all
matters as long as remaining consistent with the
remand.” Campbell, 168 F.3d at 265. A remand is
general unless it “convey[s] clearly the intent to
limit the scope of the district court’s review by
-9-

outlining the procedure the district court is to
follow, articulating the chain of intended events, and
leaving no doubt as to the scope of the remand.”
United States v. Shafer, 23 F.App’x 380, 382 (6th Cir.
2001). Thus, “[i]n the absence of an explicit
limitation, the remand order is presumptively a general
one.” United States v. Moore, 131 F.3d 595, 598 (6th
Cir. 1997).
American Exp. Travel Related Services Co., Inc. v. Hollenbach,
2012 WL 404873, *3 (E.D. Ky. Feb. 7, 2012).

A “remand for

further proceedings consistent with this opinion” contains no
limiting language and is presumptively a general one.

United

States v. Lopez, 453 Fed.Appx. 602, 604 (6th Cir. 2011).
In light of the above, the Court agrees with defendants that
the remand in this case is general in scope.

With this in mind,

the Court’s starting point for considering the defendants’
summary judgment motion is the nature of Mr. Lane’s predeprivation due process claim as set forth by the Court of
Appeals.

In describing Mr. Lane’s pre-deprivation due process

claim, the Court of Appeals stated:
“In the context of employment rights, the Supreme
Court has explained that ‘the root requirement of the
Due Process [C]lause’ is “that an individual be given
the opportunity for a hearing before he is deprived of
any significant property interest.’” Mitchell, 375 F.3d
at 480 (emphasis in original) (quoting Cleveland Bd. of
Ed. v. Loudermill, 470 U.S. 532, 5542 (1985)). This
court has explained:
Pre-termination hearings “need not be
elaborate.” [Loudermill, 470 U.S. at 545]. “The
tenured public employee is entitled to oral or
written notice of the charges against him, an
explanation of the employer’s evidence, and an
opportunity to present his side of the story.”
[Id. at 546]. This “initial check against
mistaken decisions” is all that is necessary where
an employee is provided with a full posttermination hearing. [Id. at 545]; Brickner v.
Voinovich, 97 F.2d 235, 237 (6th Cir. 1992)(“The
Supreme Court has held that, depending on the
-10-

circumstances, a pre-termination hearing, although
necessary, may not need to be elaborate, as long
as the plaintiff is entitled to a full hearing
with the possibility of judicial review at the
post-termination stage.”). Post-termination
hearings, on the other hand, “serve to ferret out
bias, pretext, deception and corruption by the
employer in discharging the employee.” Duchesne
v. Williams, 849 F.2d 1004, 1008 (6th Cir. 1988).
Lane was denied adequate pre-deprivation due
process. Under Loudermill, a pre-deprivation hearing
must include an explanation of the employer’s evidence.
Lane was denied the opportunity to see the photographs
he was accused of viewing and retaining, depriving him
of a “meaningful opportunity to tell his side of the
story.” Loudermill, 470 U.S. at 546. Additionally, a
jury could find that Lane was not given notice of all
the charges against him. Lane was notified of the
charge that he “viewed and retained” offensive images,
but he was not notified of any sexual-harassment or
hostile work-environment charges, even though Taylor
stated in a termination memorandum to the State of Ohio
that Lane “created a hostile working environment that
makes the women feel uneasy when Paul is present,” and
stated in a letter to the Ohio Bureau of Unemployment
Compensation that, “in regards to sexual harassment,”
Lane made comments about masturbation to a female
employee, made an alleged sexual comment to another
employee about her breasts, was allegedly changing his
pants in his office with the door open, and allegedly
invaded female employees’ personal spaces by walking
right up to them or behind them. The lack of
meaningful notice and an opportunity to be heard is
evident given that Taylor based his decision to
terminate Lane in part on Lane’s “failure to present
any evidence to the contrary at the [pre-termination]
hearing.”
Lane v. City of Pickerington, supra, at 459-460.
As noted above, the focus of Ms. Fersch’s and Mr. O’Brien’s
motion is that they were not personally involved in the alleged
denial Mr. Lane’s pre-deprivation due process rights.

Certainly,

a defendant’s personal involvement in the deprivation of

-11-

constitutional rights is required to establish liability under
§1983.

Polk County v. Dodson, 454 U.S. 312, 325 (1981).

Allegations of direct involvement in constitutional deprivations,
rather than attempts to impose liability by virtue of the
doctrine of respondeat superior, are necessary in order to hold
an individual defendant liable under §1983.
of Social Services, 436 U.S. 658 (1978).

Monell v. Department

Although there are

other legal claims that can properly be asserted against a
supervisor simply because someone under his or her supervision
may have committed a legal wrong, liability for constitutional
deprivations under 42 U.S.C. §1983 cannot rest on such a claim.
Consequently, unless the plaintiff's complaint affirmatively
pleads the personal involvement of a defendant in the allegedly
unconstitutional action about which the plaintiff is complaining,
the complaint fails to state a claim against that defendant and
dismissal is warranted.

See also Bellamy v. Bradley, 729 F.2d

416, 421 (6th Cir. 1984).

This rule holds true even if the

supervisor has actual knowledge of the constitutional violation
as long as the supervisor did not actually participate in or
encourage the wrongful behavior.

See Shehee v. Luttrell, 199

F.3d 295, 300 (6th Cir. 1999) (prison officials cannot be held
liable under §1983 for failing to respond to grievances which
alert them of unconstitutional actions); see also Stewart v.
Taft, 235 F.Supp.2d 763, 767 (N.D. Ohio 2002) (“supervisory
liability under §1983 cannot attach where the allegation of
liability is based upon a mere failure to act”).
The facts as set forth by both this Court and the Court of
Appeals demonstrate the lack of involvement of both Ms. Fersch
and Mr. O’Brien in the alleged denial of Mr. Lane’s predeprivation due process rights arising from the failure to show
Mr. Lane the photographs allegedly found on his computer.

Mr.

Lane does not seriously contend otherwise or set forth any other
-12-

facts in an effort to raise a genuine issue sufficient to
preclude summary judgment.

Consequently, the Court will grant

summary judgment to Ms. Fersch and Mr. O’Brien on the ground that
Mr. Lane produced no evidence that they were personally involved
in the denial of his pre-deprivation due process rights.
In doing so, the Court notes that, contrary to Mr. Lane’s
assertions, such a result is not inconsistent with the Court of
Appeals’ ruling on this issue and is within the scope of the
remand.

The Court of Appeals did not hold that Ms. Fersch and

Mr. O’Brien were individually liable for violating Mr. Lane’s
pre-deprivation due process rights by their failure to show Mr.
Lane the photographs allegedly found on his computer.

Rather,

the Court of Appeals held only that Mr. Lane had asserted a claim
for a violation of his pre-deprivation due process rights and
that the defense of qualified immunity was unavailable.
V.

Mr. Lane’s Motion for Summary Judgment
A.

The Parties’ Positions

Mr. Lane’s motion for summary judgment is one and one-half
pages in length and relies exclusively on the Court of Appeals’
decision.

As noted above, in his motion, Mr. Lane asserts that

he is entitled to summary judgment against all defendants “on his
claim for a pre-deprivation due process violation based on
Defendants’ failure to show him the photographs allegedly found
on his computer, which denied Plaintiff which denied Plaintiff
his due process right to a meaningful opportunity to tell his
side of the story.”

Ms. Fersch and Mr. O’Brien have responded,

incorporating by reference their summary judgment motion and
contending that Mr. Lane is not entitled to summary judgment
against them for the reasons set forth above.

In his reply, Mr.

Lane notes that the City of Pickerington and Mr. Taylor have not
responded to the motion, and he requests that summary judgment be
entered in his favor against these specific defendants.
-13-

B.

Analysis

Briefly, for the reasons explained above, Mr. Lane’s motion
for summary judgment will be denied as to Ms. Fersch and Mr.
O’Brien.

As a result, the Court will limit its consideration of

Mr. Lane’s motion to Mr. Taylor and the City of Pickerington.
As Mr. Lane notes, these defendants have not responded to
his motion.

However, Fed.R.Civ.P. 56 indicates that the failure

to respond to a motion for summary judgment alone is not
sufficient grounds for granting summary judgment.

See Lyons v.

Donahoe, 2015 WL 457855, *4 (S.D. Ohio Feb. 2, 2015)(“A
nonmovant’s failure to respond to a motion for summary judgment
does not, in itself, entitle the movant to judgment as a matter
of law”).

Specifically, Rule 56(e) states:

If a party fails to properly support an assertion
of facts or fails to properly address another party’s
assertion of fact as required by Rule 56(c), the court
may:
(1) give an opportunity to properly support or address
the fact;
(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 movant is entitled to it; or
(4) issue any other appropriate order.
Consequently, despite the fact that these defendants have not
responded to Mr. Lane’s motion, the Court must determine whether
Mr. Lane is entitled to judgment against them as a matter of law.
As set forth above, the Court of Appeals concluded that Mr.
Lane was denied due process when he was not provided with a
constitutionally adequate pre-termination hearing because he was
not permitted the opportunity to see the photographs he was
accused of viewing and retaining.

The facts, as recited by the

Court of Appeals, indicate that there is no factual dispute that
Mr. Taylor conducted the predisciplinary hearing and that he did
-14-

not provide the images to Mr. Lane for review.

Because he has

not responded, Mr. Taylor has not set forth any additional facts
raising any factual dispute.

In light of the Court of Appeals’

ruling and the lack of any factual dispute on this issue, Mr.
Lane’s motion for summary judgment on this claim will be granted
as to Mr. Taylor.
Turning to the City of Pickerington, “[a] plaintiff raising
a municipal liability claim under §1983 must demonstrate that the
alleged federal violation occurred because of a municipal policy
or custom.”

Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir.

2013), citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694
(1978).

“A plaintiff can make a showing of an illegal policy or

custom by demonstrating one of the following: (1) the existence
of an illegal official policy or legislative enactment; (2) that
an official with final decision making authority ratified illegal
actions; (3) the existence of a policy of inadequate training or
supervision; or (4) the existence of a custom of tolerance or
acquiescence of federal rights violations.”

Id., citing Thomas

v. City of Chattanooga, 389 F.3d 426, 429 (6th Cir. 2005).

“A

municipality ‘may not be sued under §1983 for an injury inflicted
solely by its employees or agents.’”

Id., quoting Monell, 436

U.S. at 694.
Mr. Lane has not addressed any of these issues in his
motion, instead relying solely, and quite generally, on the Court
of Appeals’ decision as his basis for moving for summary
judgment.

To the extent that Mr. Lane makes any argument in

support of his motion, he states that “[t]his Court being bound
by the decision and mandate of the Court of Appeals, summary
judgment must be granted in Paul Lane’s favor on his §1983 claim
that Defendants violated his due process rights when he was not
shown the photographs allegedly found on his computer at his pretermination hearing.”

However, the Court of Appeals had only
-15-

this to say about Mr. Lane’s municipal liability claim:
The City of Pickerington argues that
notwithstanding any due process deprivation, we must
affirm the grant of summary judgment in its favor
because Monell v. New York City Department of Social
Services, 436 U.S. 658 (1978), precludes municipal
respondeat superior liability. However, a municipality
may be liable for the actions of its employees or
agents under §1983 where the “acts may fairly be said
to represent official policy.” Monell, 436 U.S. at
694. Lane contends that municipal liability is proper
under Monell because the City delegated its
responsibility for pre-disciplinary due process to
Taylor, thus making Taylor a final decision maker on
the issue, and because the City failed to train Taylor.
The district court did not reach the issue because it
found no constitutional violation. Summary judgment
for the City based on Monell is inappropriate where
Taylor, the City Manager, appears to have been the
final decision maker when dealing with city employees.
Lane v. City of Pickerington, supra, at 467-468.

By way of

footnote, the Court of Appeals indicated that the City had
raised Monell in response to Mr. Lane’s motion for summary
judgment.

The City did not assert it as a ground for granting

its own motion for summary judgment.

See id. at fn. 10.

The Court of Appeals’ discussion merely states that summary
judgment in favor of the City is not appropriate based on Monell.
This discussion does not require the reverse to be true and cannot
be construed as a holding that Mr. Lane is entitled to summary
judgment against the City on his pre-deprivation due process claim.
As the Court of Appeals noted, this Court did not reach this issue
when it granted the City’s motion for summary judgment.

Further,

as discussed above, the Court of Appeals issued only a general
remand, leaving the issue open for further proceedings.
Consequently, in moving for summary judgment on this issue,
Mr. Lane remains bound by the requirements of Rule 56.

Mr. Lane’s

responsibility in seeking summary judgment is to come forward with

-16-

his evidence because he is required “to present facts necessary to
demonstrate that there was ‘no genuine dispute as to any material
fact’” and that he was “‘entitled to judgment as a matter of law.’
Fed.R.Civ.P. 56(a).”

Delphi Automotive Systems, LLC v. United

Plastics, Inc., 418 Fed.Appx. 374, 381-382 (6th Cir. 2011).

Rule

56 states specifically:
(c)(1) Supporting Factual Positions. A party asserting
that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to
support the fact.
Mr. Lane has not done so here, instead choosing to rely only
on the Court of Appeals’ decision to support his motion for
summary judgment in his favor against the City.

As a result,

despite the City’s lack of response, the Court has no record from
which to conclude that Mr. Lane is entitled to summary judgment
against the City on his pre-deprivation due process claim.
Consequently, Mr. Lane’s motion for summary judgment will be
denied as to the City of Pickerington.
VI.

Order

For the reasons stated above, Defendants O’Brien’s and
Fersch’s motion for summary judgment (Doc. 67) is granted.
Plaintiff’s motion for summary judgment (Doc. 69) is granted in
part and denied in part.

Summary judgment on his predeprivation

hearing claim is granted against Defendant Taylor and denied
without prejudice as to Defendant City of Pickerington.
motion to strike (Doc. 79) is denied.
-17-

The

Defendants’ motion for

leave (Doc. 88) is denied as moot.
/s/ Terence P. Kemp
United States Magistrate Judge

-18-