Mason v. Wal-Mart Corporation et al

Filing 87

ORDER granting 70 Motion for Summary Judgment. This case is DISMISSED. The Clerk is directed to enter Judgment for Wal-Mart. Signed by Judge Algenon L. Marbley on 5/9/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GUY MASON,

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Plaintiff,
v.
WAL-MART CORPORATION,
Defendant.

Case No. 2:14-CV-00446
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

OPINION & ORDER
This matter comes before the Court for consideration of Defendant Wal-Mart
Corporation’s Motion for Summary Judgment. (Doc. 70.) The Court scheduled a hearing on the
motion for May 2, 2016 but Plaintiff’s counsel failed to appear. Accordingly, the Court has
decided the motion without oral argument. For the reasons that follow, the Court GRANTS
Wal-Mart’s Motion for Summary Judgment in its entirety.
I.

BACKGROUND

A. Factual Background
This case arose from the Steubenville Police Department’s (“SPD”) arrest of Plaintiff
Guy Mason in the middle of the night on May 24, 2013 near a Wal-Mart store in Steubenville,
Ohio. Mason drove his car, a green Jeep, to the store around 2:00 a.m. to shop for plants.
(Deposition of Guy Mason, Doc. 67 at 76.) The Jeep was full of plants, household goods,
clothing, food, tools, and cleaning supplies because Mason was in the process of moving from
his parents’ house to an apartment. (Id. at 56-57, 66.) After getting out of his car, he approached
an uncovered parking lot display, which was located outside the store and contained flowers and
fruit trees for purchase. (Id. at 77, 80.)

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According to Mason, a Wal-Mart employee approached him and Mason inquired about
the price of a plant he had picked up from the display. (Id. at 77.) The employee, who was
watering some plants, told him Mason would have to take the plant into the store to get a price
check himself. (Id. at 78.) It started to rain, and Mason decided that since he was cold he did not
want to walk all the way around to the open entrance on the other side of the store to find out the
price, so he put the plant back and headed back to his car. (Id. at 81, 85.) As he was walking
toward his Jeep, he saw a man in khaki pants and a striped shirt pull up to the Jeep in a van, get
out,1 and look inside the Jeep. (Id. at 86, 89-90.) The man drove away in his van by the time
Mason reached the Jeep. (Id. at 97.)
The man, a Wal-Mart shift manager named William Mainwaring, had been sitting in his
van during a break in his shift when he saw Mason, whose shopping for plants in a dark area at
that hour of the night triggered Mainwaring’s suspicion that Mason might be shoplifting.
(Deposition of William Mainwaring, Doc. 71-3 at 5.) Mainwaring stated that he had never seen
a customer shop for plants at that hour of the night except on one occasion in a fenced-in, lit
area. (Id. at 18.) He also explained that it was Wal-Mart’s policy to show “aggressive
hospitality” toward suspected shoplifters inside the store in order to encourage them not to steal
merchandise, but that in potentially dangerous situations—if the potential shoplifter might have
had a gun or was outside of the store—employees were encouraged to call the police. (Id. at 28;
see also Deposition of Jerry Burner, Doc. 71-2 at 46-47, 52.) After a few minutes of watching
Mason shop, Mainwaring called the store’s assistant manager, Jerry Burner, and told him that he
was watching a person shopping for plants in a “kind of suspicious” manner. (Mainwaring Dep.,
Doc. 71-3 at 22.) After Mainwaring reached Mason’s Jeep and looked inside, he called Burner
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The Wal-Mart employee, later identified as William Mainwaring, testified that he never got out
of the vehicle. (Deposition of William Mainwaring, Doc. 71-3 at 35-36.)
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again and asked him to call the police. (Id.) He told Burner that he did not know if Mason had
shoplifted but that, based on what Mainwaring had observed, Burner should call the police. (Id.
at 29.) Mainwaring then watched Mason drive out of the parking lot, turn left on Mall Drive,
and head toward Lover’s Lane, where Mainwaring saw a plain white Crown Victoria begin to
follow the Jeep. (Id. at 38, 40.) As Mainwaring returned to the store, he could see police cars
beginning to gather on Lover’s Lane. (Id. at 41.)
After he spoke to Mainwaring, Burner called the police. On the call, Burner told the
dispatcher that there was a man at the Steubenville Wal-Mart store “loaded up with plants.” (911
Audio, Doc 70, Ex. B.) He further stated that “we’re not sure if it’s anything.” (Id.) He then
gave the police the Jeep’s description and license plate number. (Id.) The dispatcher relayed to
the officers on their way to Lover’s Lane that Mason had items from the Wal-Mart that its
employees “believe he hadn’t paid for.” (911 Audio, Doc. 70, Ex. C.) SPD Officer Geoffrey
Palmer later stated in his deposition that the officers believed upon arriving at the scene that
Wal-Mart employees had told the dispatcher that Mason had stolen items from Wal-Mart.
(Deposition of Geoffrey Palmer, Doc. 71-6 at 18.) SPD Officer James Sloane stated that when
he arrived on the scene he thought the items in Mason’s car had been reported as “possibly
stolen.” (Deposition of James D. Sloane, Doc. 71-7 at 20.)
When Mason drove out of the store parking lot, he saw a plain white car in his rearview
mirror (Mason Dep., Doc. 67 at 98.) Mason testified in his deposition that he had used a turn
signal before turning, but he was pulled over by the unmarked vehicle, driven by Sergeant
Jeffrey Sterling from the Jefferson County Sheriff’s Office, and another police vehicle, driven by
Ohio State Highway Patrol Trooper Mason Boyce. (Id. at 100; Deposition of Jeffrey E. Sterling,
Doc. 71-8 at 22.) Sterling asked Boyce to make the stop since Sterling was driving an unmarked

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vehicle. (Deposition of Mason Boyce, Doc. 71-1 at 19.) After checking for Mason’s license and
registration, Trooper Boyce informed Mason that he did not use a turn signal before making the
turn onto Lover’s Lane, which Deputy Sterling had observed.2 (Mason Dep., Doc. 67 at 103-04;
Boyce Dep., Doc. 71-1 at 36; Sterling Dep., Doc. 71-8 at 22.) Trooper Boyce commented that
Mason appeared to have a lot of stuff in the back of his car and asked if he had any receipts.
(Mason Dep., Doc. 67 at 104.) As Mason was reaching for his checkbook, which he testified
contained receipts, Trooper Boyce told him to get out of the vehicle. (Id. at 105.) Steubenville
Police Department Officers Sloane, Palmer, and Regis Holzworth arrived within the next few
minutes. (Boyce Dep., Doc. 71-1 at 25; Sterling Dep., Doc. 71-8 at 30.)
The SPC officers told Mason that they were going to search the vehicle because WalMart had told the police that Mason had been at the store, and the SPD wanted to see if he had
anything from Wal-Mart. (Mason Dep., Doc. 67 at 107-08.) Mason was placed in Officer
Sloane’s police cruiser. (Id. at 116.) Officer Palmer then conducted a search of the vehicle,
finding potted plants, a lawn mower, a weed eater, and other items, many of which were still in
their original packaging. (Palmer Dep., Doc. 71-6 at 30-31.) At some point during the stop and
search, the dispatcher informed the officers over the radio that “Guy Mason has two to three
prior shoplifting issues.” (Id. at 20.) It is not clear from the record when this information came
over the radio or who heard it. (See id. at 20, 23-24; Sloane Dep., Doc. 71-7 at 10.)
While Mason was in the cruiser, Mainwaring, the Wal-Mart employee he had spotted
earlier, drove up with Officer Palmer, who had fetched him from the store so that he could try to
identify the merchandise in the Jeep. (Mason Dep., Doc. 67 at 118-19; Boyce Dep., Doc. 71-1 at
30; Sterling Dep., Doc. 71-8 at 30; Mainwaring Dep., Doc. 71-3 at 42.) Mainwaring looked in
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Ultimately, the police did not issue a citation to Mason for failure to use a turn signal.
(Declaration of Guy Mason, Doc. 77-1 at ¶ 9.)
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the Jeep and immediately identified some of the items as not sold by Wal-Mart, including a
motor and a trimmer. (Id. at 43.) He told the police that he was not certain of the origin of other
items, but that if they transported the items to the store, he would be able to scan them and
determine whether the items were sold by Wal-Mart, although not whether the particular items
were stolen. (Id. at 44, 46.) Mason, still in Officer Sloane’s cruiser, testified in his deposition
that he overheard Mainwaring say to the four officers on the scene: “I want that fucking Jeep
brought down to my store, and we’re going to go through it and see what else he has in there.”
(Mason Dep., Doc. 67 at 121-22.) Mason overheard this statement while the officers and
Mainwaring were huddled together. He then heard one of the officers say “We’ll get somebody
to drive it down for – for you.” (Id. at 122-23.)
The SPD officers decided to take the Jeep back to the Wal-Mart to scan the items.
(Sterling Dep., Doc. 71-8 at 32.) Trooper Boyce drove Mainwaring back to the store, SPD
Officer Palmer drove the Jeep, and other officers followed in their vehicles, including Sloane,
who was transporting Mason. (Mainwaring Dep., Doc. 71-3 at 52; Sterling Dep., Doc. 71-8 at
33; Boyce Dep., Doc. 71-1 at 32.) One of the officers also removed Mason from the police
cruiser, handcuffed him, put him back in the cruiser, and drove him to the store. (Declaration of
Guy Mason, Doc. 77-1 at ¶ 7.) At this point, Mainwaring was still suspicious that some of the
items had been stolen, given the multiple quantities of certain items, which he characterized as
indicative of shoplifting, but he did not express these suspicions to the police. (Mainwaring
Dep., Doc. 71-3 at 50-51.)
Back at the store, Mainwaring called Burner and asked him to come out the front
entrance. (Id. at 53.) Mainwaring asked Burner to help the police by scanning the merchandise
in the Jeep to identify if it was Wal-Mart merchandise. (Id.; Burner Dep., Doc. 71-2 at 25.)

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Burner told the police that a scan of the merchandise would reveal if a particular product was
sold by Wal-Mart but it would not reveal whether it was sold by that particular Wal-Mart as
opposed to any other Wal-Mart or even another retailer who stocked the item. (Id. at 25-26.)
Officer Palmer testified that the police also wanted to use the scanner to determine the value of
the merchandise because the total value of allegedly stolen items determines whether the SPD
charges a shoplifter with a misdemeanor or a felony. (Palmer Dep., Doc. 71-6 at 39-40.)
The SPD officers removed all of the merchandise from the Jeep and handed it over to
Burner, who scanned each item while he stood outside near the front entrance of the store,
finding that some of the items were ones that Wal-Mart kept in its inventory and some were not.
(Burner Dep., Doc. 71-2 at 27-28.) Officers segregated the items that Burner identified as being
sold by Wal-Mart from other items that were not. (Id. at 29.) When Burner was finished
scanning all of the items, the police turned over to Wal-Mart the items that showed up on the
scanner as those that Wal-Mart sold. (Id. at 54, 61.) Mason testified that while he was sitting in
the police cruiser, he saw Mainwaring reach into the Jeep, grab Mason’s personal satchel, and
take it into Wal-Mart. (Mason Dep., Doc. 67 at 179.) No officers or Wal-Mart employees saw
Mainwaring grab anything out of the Jeep or remember seeing the satchel at all.
While Burner was scanning the items, Mainwaring told one of the officers that he wanted
to take a look at the surveillance video of the area where he had spotted Mason. (Mainwaring
Dep., Doc. 71-3 at 53.) After watching the video, Mainwaring said he was certain that Mason
had never gone into the store and that he had not stolen anything from the garden area. (Id. at
56.) At some point while the video was playing, Sergeant Sterling came into the store, watched
the footage, and told Mainwaring that he agreed that the video indicated that Mason had not
stolen anything from the Steubenville Wal-Mart. (Id. at 53, 57; Sterling Dep., Doc. 71-8 at 9.)

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The SPD told Mainwaring that the property that they had segregated as potentially having
been sold by Wal-Mart needed to be returned to the Weirton, West Virginia Wal-Mart, another
store near the Steubenville Wal-Mart where the SPD believed Mason had gone earlier.
(Mainwaring Dep., Doc. 71-3 at 69.) Officers Palmer and Sloane made the decision to leave this
merchandise with Wal-Mart, which Officer Palmer said was common practice when
investigating an alleged shoplifting. (Palmer Dep., Doc. 71-6 at 41-42.) After the police left the
property with Mainwaring and Burner, Mainwaring left a note for the Steubenville store’s asset
protection manager that the property may have been from the Weirton Wal-Mart store.
(Mainwaring Dep., Doc. 71-3 at 65-66.) A few days later, the asset protection manager told
Mainwaring that Weirton Wal-Mart employees had come to pick up the property. (Id. at 68;
Burner Dep., Doc. 71-2 at 55.)
After the police handed the property over to Wal-Mart, they transported Mason to the
police station where he was booked for receiving stolen property and then taken to jail. (Mason
Dep., Doc. 67 at 128, 131.) The Steubenville city prosecutor, John Mascio, verified the criminal
complaint against Mason. (Sloane Dep., Doc. 71-7 at 46; Criminal Complaint, Doc. 70, Ex. D.)
Mason spent 11 days in jail. (Mason Dep., Doc. 67 at 132.) Ultimately, a grand jury in the
Jefferson County Municipal Court issued a “no bill,” declining to indict him on the charge of
receiving stolen property, and he was released from custody. (Id. at 169.)
B. Procedural History
Plaintiff commenced this action against Wal-Mart Corporation and several others on May
14, 2014. (Doc. 1.) He filed an amended complaint two days later. (Doc. 2.) After various
Defendants filed motions to dismiss, Plaintiff reached settlements with or voluntarily dismissed
the following Defendants: Big Lot Stores (Doc. 38); Family Dollar Stores of Ohio (Doc. 41);

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Lowe’s Home Centers (Doc. 44); Kmart Corporation (Doc. 49); the City of Steubenville, Officer
Sloan, Officer Holzworth, and Officer Palmer (Doc. 55); Jefferson County Sheriff Fred Abdalla
and Sergeant Sterling (Doc. 63); and Dollar General Stores (Doc. 76). This Court also granted
Defendant Mason Boyce’s Motion to Dismiss for failure to state a claim upon which relief could
be granted and granted Plaintiff leave to amend his complaint. (Doc. 57.) Plaintiff amended his
complaint but stipulated to the dismissal of Defendant Boyce. (Docs. 58, 59.) Wal-Mart is now
the only remaining Defendant. The claims in the Amended Complaint that pertain to Wal-Mart
include: conspiracy to violate Plaintiff’s Fourth Amendment rights to be free from unreasonable
searches and seizures and malicious prosecution (Count IV); and state-law claims for malicious
prosecution (Count V); false arrest (Count VI); conversion (Count VII); and spoliation (Count
VIII).
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment
is appropriate “if the movant shows that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” A fact is deemed material only if it “might
affect the outcome of the lawsuit under the governing substantive law.” Wiley v. United States,
20 F.3d 222, 224 (6th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The nonmoving party must then present “significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 340 (6th Cir. 1993). The mere possibility of a factual dispute is
insufficient to defeat a motion for summary judgment. See Mitchell v. Toledo Hospital, 964 F.2d
577, 582 (6th Cir. 1992). Summary judgment is inappropriate, however, “if the dispute about a

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material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
The necessary inquiry for this Court is “whether ‘the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.’” Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (quoting
Anderson, 477 U.S. at 251-52). In evaluating such a motion, the evidence must be viewed in the
light most favorable to the nonmoving party. United States S.E.C. v. Sierra Brokerage Servs.,
Inc., 712 F.3d 321, 327 (6th Cir. 2013). The mere existence of a scintilla of evidence in support
of the opposing party’s position will be insufficient to survive the motion; there must be
evidence on which the jury could reasonably find for the opposing party. See Anderson, 477
U.S. at 251; Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995).
III.

ANALYSIS

As a threshold matter, Plaintiff has explicitly abandoned his malicious-prosecution and
spoliation claims in his response in opposition to Wal-Mart’s motion for summary judgment.
(Doc. 78 at 9.) Therefore, the Court will address only the civil-conspiracy, false-arrest, and
conversion claims. The Court GRANTS Wal-Mart’s Motion for Summary Judgment on the
malicious-prosecution and spoliation claims.
A. Section 1983 Conspiracy Claim
To prevail in a cause of action under 42 U.S.C. § 1983, a plaintiff must show that a
person acting under color of state law has deprived her of a right, privilege, or immunity secured
by the Constitution or laws of the United States. Generally, private actors do not act “under
color of” state law for purposes of a § 1983 claim and, therefore, may not be subject to suit under
§ 1983. When a private party conspires with a government employee, however, liability may

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attach to the private party. Memphis Tenn. Area Local, Am. Postal Workers Union, AFL-CIO v.
City of Memphis, 361 F.3d 898, 905 (6th Cir. 2004). The Sixth Circuit has defined a civil
conspiracy under § 1983 as follows:
A civil conspiracy is an agreement between two or more persons to injure another by
unlawful action. Express agreement among all the conspirators is not necessary to find
the existence of a civil conspiracy. Each conspirator need not have known all of the
details of the illegal plan or all of the participants involved. All that must be shown is that
there was a single plan, that the alleged coconspirator shared in the general conspiratorial
objective, and that an overt act was committed in furtherance of the conspiracy that
caused injury to the complainant.
Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). Because “direct evidence of an express
agreement among all the conspirators to conspire” is rare, “circumstantial evidence may provide
adequate proof of conspiracy.” Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003)
(quoting Weberg v. Franks, 229 F.3d 514, 528 (6th Cir. 2000)).
To survive summary judgment against Wal-Mart on the conspiracy claim, Mason must
show some “evidence from which to infer that [Wal-Mart] acted in concert” with law
enforcement to violate his Fourth Amendment right to be free from unlawful searches and
seizures. Id. Plaintiff’s evidence of a “single plan” essentially boils down to a “huddle” of
Mainwaring and several law enforcement officers while Mason was detained in the back of
Officer Sloane’s cruiser on Lover’s Lane. According to Plaintiff, this huddle is circumstantial
evidence that Mainwaring conspired with law enforcement to charge Mason with the felony of
receiving stolen property and to confiscate his property. But this huddle does not constitute even
circumstantial evidence that points to a conclusion that there was a single plan among law
enforcement and Mainwaring.
First of all, Burner’s call to law enforcement is not consistent with a conspiratorial
objective. He stated that he saw a man whose car was “loaded up with plants” but that “we’re

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not sure if it’s anything.” (911 Audio, Doc 70, Ex. B.) Mason does not contend that this
statement was false. When the dispatcher relayed information from the call to law enforcement,
he stated that Mason had items from the Wal-Mart that Wal-Mart employees “believe he hadn’t
paid for,” which Burner never told the dispatcher. (911 Audio, Doc. 70, Ex. C.)
Second, there is no evidence that either Mainwaring or Burner was involved in the
decision to search the Jeep at Lover’s Lane or the Wal-Mart parking lot, and Mainwaring even
testified that he commented to the officers at Lover’s Lane that he knew that some of the items
were definitely not Wal-Mart products. (Mainwaring Dep., Doc. 71-3 at 43; see also Sloane
Dep., Doc. 71-7 at 27 (stating that no Wal-Mart employees participated in the search of the
Jeep).)3 There is also uncontroverted evidence in the record that the SPD made the decision to
pick up Mainwaring to bring him to Lover’s Lane; Mainwaring did not initiate this visit. (See
Steubenville Police Department Dashboard Audio, Doc. 81, Ex. D 1:25:08 (“Car 10 is going to
go back to Wal-Mart. He’s going to get an employee there to go back up to the scene at Lover’s
Lane.”).)4
Third, Burner and Mainwaring told law enforcement that scanning the items in Mason’s
car would not reveal if they had been stolen from the Steubenville Wal-Mart. Rather, the scan

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Mason does not appear to contest that the initial search of the Jeep on Lover’s Lane occurred
before Mainwaring even arrived on the scene. (See Mason Decl., Doc. 77-1 at ¶¶ 4-6;
Steubenville Police Department Dashboard Audio, Doc. 81, Ex. D 1:25:08.) This is consistent
with officer testimony that SPD officers made the decision to search the car shortly after they
arrived on the scene, as well as the SPD dashboard audio and video, which make clear that SPD
officers had started searching the car before Mainwaring arrived at the scene. (Palmer Dep.,
Doc. 71-6 at 29-30; SPD Dashboard Audio, Doc. 81, Ex. D, 1:25:52-53.)
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Mason recalled that Mainwaring drove his own van to Lover’s Lane, but this statement is
“blatantly contradicted by the record” and the Court will not adopt it for purposes of ruling on
the motion for summary judgment. Scott v. Harris, 550 U.S. 372, 380 (2007). All of the
officers, and Mainwaring himself, testified that Officer Palmer picked up Mainwaring and drove
him to Lover’s Lane, and the dashboard audio corroborates this testimony. (SPD Dashboard
Audio, Doc. 81, Ex D, 1:25:52-53.)
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could only show whether the item was sold by any Wal-Mart. (Burner Dep., Doc. 71-2 at 25-26;
Mainwaring Dep., Doc. 71-3 at 44, 46.) These statements were corroborated by Officer Sloane’s
testimony that Officer Palmer had told him that the scanner could only identify whether the item
was something that Wal-Mart typically sells, and Officer Sloane’s written report, which stated
that Officer Palmer relayed to Officer Sloane that Mainwaring “could not determine which WalMart stores the items originally came from at that time.” (Sloane Dep., Doc. 71-7 at 24.)
Fourth, after Mainwaring went back into the store to examine the security tape while
Burner was scanning items that law enforcement unloaded from the Jeep, he confirmed that the
footage did not show Mason stealing any plants, and he shared his conclusion with Deputy
Sterling, who had come in to watch the video with him and also agreed that the video did not
show theft. (Mainwaring Dep., Doc. 71-3 at 53, 57; Sterling Dep., Doc. 71-8 at 9-10.)
None of this evidence suggests the existence of a single plan to injure Mason through an
illegal search or seizure. Spadafore, 330 F.3d at 854. Other than the huddle, the only evidence
to which Mason points to suggest a conspiracy is: (1) back in the Wal-Mart parking lot,
Mainwaring reached into the Jeep and took Mason’s personal satchel, which Mason says he
never saw again; and (2) at the scene on Lover’s Lane, Mason overheard Mainwaring say to the
officers: “I want that fucking Jeep brought down to my store, and we’re going to go through it
and see what else he has in there.” (Mason Dep., Doc. 67 at 121-22.) Even if Mainwaring did
make that statement—which is not corroborated by any of the other officers or Mainwaring
himself (see, e.g., Boyce Dep., Doc. 71-1 at 47-48)—it is insufficient to survive summary
judgment. The officers’ testimony all consistently reflects that it was the SPD that made the
decision to take the Jeep back to Wal-Mart and scan the merchandise. (Sterling Dep., Doc. 71-8
at 32.) And this decision “is just as consistent with independent conduct as it is with a

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conspiracy.” Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (“There is no indication
that when the [police officers] met [the defendant], they discussed anything other than the [police
officers] would follow [the defendant] to the [plainitff’s] residence.”); see also Re/Max Int’l, Inc.
v. Realty One, Inc., 173 F.3d 995, 1009 (6th Cir. 1999) (“[C]ircumstantial evidence must tend to
exclude the possibility of independent conduct.”). Given the erroneous information they had
received from the dispatcher, deciding to take the Jeep back to Wal-Mart and scan the items
within it was consistent with independent decision-making by a police department. See also
Cruz v. Donnelly, 727 F.2d 79, 80 (3d Cir. 1984) (upholding a grant of summary judgment to a
store manager because the store manager’s accusations of shoplifting and “order[s]” to the police
to strip-search the plaintiff were not evidence of a prearranged plan between the manager and the
police to deprive the plaintiff of his constitutional rights).
As to the satchel, there is no evidence in the record about the satchel besides Mason’s
testimony, nor is there any evidence that Mainwaring and Burner made an independent decision
to keep any items that the police seized. Rather, all of the testimony indicates that the police
instructed them to keep the items and have the Weirton Wal-Mart pick them up. (Mainwaring
Dep., Doc. 71-3 at 69; Palmer Dep., Doc. 71-6 at 41-42.) Even if the Court assumes that
Mason’s testimony about the satchel is true, summary judgment on this claim is warranted
nevertheless because the circumstantial evidence presented—namely, the huddle and
Mainwaring’s alleged, and uncorroborated, comment about bringing the Jeep back to the store—
“reveals that there is no evidence beyond mere conjecture and speculation that an agreement
existed, thus [] precluding a finding of a conspiracy.” Moore v. City of Paducah, 890 F.2d 831,
834 (6th Cir. 1989); see also Spadafore, 330 F.3d at 854 (finding no direct or circumstantial
evidence of a single plan at the time that the alleged constitutional violation occurred).

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In addition to the fact that the conduct of Mainwaring and Burning refutes any conclusion
that there was a single plan between them and law enforcement, there is also no other
circumstantial evidence from which a reasonable jury could infer a conspiracy between WalMart and law enforcement. For instance, there is no evidence that Wal-Mart or its employees
had a “special relationship” with law enforcement, or that Wal-Mart possessed or exerted any
particular influence over law enforcement. See Haley v. Wascom, No. 5:13-cv-232, 2015 WL
4987564, at *7 (N.D. Ohio Aug. 19, 2015) (citing Wagenmann v. Adams, 829 F.2d 196, 210-11
(1st Cir. 1987)); cf. Cruey v. Huff, No. CIVA 7:09-cv-00516, 2010 WL 1539995, at *3 (W.D.
Va. Apr. 16, 2010), aff’d sub nom. Cruey v. Kirby, 445 F. App’x 647 (4th Cir. 2011). There is
nothing in the record to suggest that Wal-Mart was “anything more than [a] mere complainant[]
at the [Steubenville] Police Department, or that [it] possessed or exerted influence over [the
SPD] to bypass regular police procedures in order to violate plaintiff’s alleged constitutional
rights.” Haley, 2015 WL 4987564, at *7. Although courts must be cautious in resolving cases
on summary judgment that turn on a defendant’s state of mind, Poller v. Columbia Broadcasting
Sys., 368 U.S. 464, 473 (1962), this is an instance in which Plaintiff’s conspiracy allegations are
“mere conjecture and speculation,” Moore, 890 F.2d at 834. The Court finds that Mainwaring’s
brief huddle with law enforcement upon his arrival at Lover’s Lane—absent any testimony as to
the conversation within—combined with an uncorroborated comment from Mainwaring are not
sufficient circumstantial evidence for a reasonable jury to infer that a conspiracy was afoot. The
Court GRANTS Wal-Mart’s motion for summary judgment on the civil-conspiracy claim.
B. Ohio False Arrest Claim
The elements a plaintiff must show to prevail on a false-arrest claim under Ohio law are:
“(1) the intentional detention of the person, and (2) the unlawfulness of the detention.” Barnes v.

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Meijer Dep’t Store, 2003-09-246, 2004 WL 720906, at *3 (Ohio Ct. App. Apr. 5, 2004); Ficklin
v. Home Depot, U.S.A. Inc., No. 94458, 2010 WL 4684652, at *4 (Ohio Ct. App. Nov. 18, 2010).
A cause of action for false arrest may be brought only against the persons making the arrest or
their employers. Id. Because private citizens who call upon assistance from law enforcement
are insulated from liability for false arrest if their request for assistance does not amount to a
request for arrest, Mason must show that his arrest by law enforcement was “so induced or
instigated by the defendant that the arrest [wa]s made by the officer, not of his own volition, but
to carry out the request of the defendant.” Id.; see also Beverly v. Lawson Co., No. 45119, 1983
WL 4607, at *4 (Ohio Ct. App. Aug. 18, 1983). There is no liability “if a person merely gives
information to an officer tending to show a crime has been committed.” Barnes, 2004 WL
720906, at *4. When a private citizen “merely summons an officer for assistance because of a
disturbance and does not specifically request that the person be arrested nor supply the false
information to the police which causes the arrest, the citizen is not liable.” White v. Standard Oil
Co., 474 N.E.2d 366, 367 (Ohio Ct. App. 1984).
Plaintiff’s response in opposition to Defendant’s motion for summary judgment offers
little in the way of argument on this claim. He makes only a conclusory statement that there is
direct and circumstantial evidence in the record that shows a genuine dispute of material fact as
to whether Mason’s arrest was instigated by Mainwaring. (Doc. 78 at 18.) The Court finds that,
in fact, there is no evidence in the record that the arrest was “made by the officer, not of his own
volition, but to carry out the request of” Mainwaring. Ficklin v. Home Depot U.S.A. Inc., 2010
WL 4684652, at *4. First, Burner’s call to the police “was not a request to apprehend” Mason.
Barnes, 2004 WL 720906, at *4. He even stated that he was unsure whether Mason was
shoplifting. Second, even if Mainwaring asked the SPD to bring the Jeep to the Wal-Mart

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parking lot so he could examine the merchandise, Mason has not offered any evidence to suggest
that Mainwaring asked the police to arrest Mason. In fact, all the evidence points in the other
direction. Mainwaring came to Lover’s Lane at the request of the police and pointed out that
several items in the Jeep did not belong to Wal-Mart. Mainwaring did not search the vehicle
himself. Mainwaring and Deputy Sterling both stated that Mainwaring, after watching the
security video, said he saw no evidence of Mason shoplifting on that video.
Therefore, there is no material dispute that the arrest was instigated by the SPD to carry
out the request of Burner or Mainwaring. The Court GRANTS Wal-Mart’s motion for summary
judgment on the false-arrest claim.
C. Conversion Claim
The Ohio cause of action for conversion allows a plaintiff to bring a claim against a
defendant for “the wrongful exercise of dominion over property to the exclusion of the rights of
the owner, or withholding it from his possession under a claim inconsistent with his rights.”
Joyce v. Gen. Motors Corp., 551 N.E.2d 172, 175 (Ohio 1990); see also Ohio Tel. Equip. &
Sales, Inc. v. Hadler Realty Co., 493 N.E.2d 289, 292 (Ohio Ct. App. 1985). Plaintiff must
prove the following elements to prevail on a conversion claim: “(1) Defendant’s exercise of
dominion or control over (2) Plaintiff’s property, (3) wrongfully or in a manner inconsistent with
Plaintiff’s rights of ownership.” Contorno v. Small, No. 1:10-cv-165, 2011 WL 4499234, at *5
(N.D. Ohio Sept. 27, 2011).
Wal-Mart contends that Mason’s conversion claim must be dismissed because Wal-Mart
employees did not exercise wrongful dominion over Mason’s property. (Doc. 70 at 16.) That is,
Mainwaring and Burner “merely cooperated with the SPD’s investigation and followed their
instructions to take possession of merchandise that was discovered in Mason’s Jeep and deliver it

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to Walmart’s Weirton, West Virginia location.” (Id.) They contend that their dominion over the
property was not wrongful because neither man asked to take possession of the merchandise.
(Id.) Mason offers two responses to this argument. First, he argues that Wal-Mart did not
merely hold the property for the police but, in fact, sold it. (Doc. 78 at 19.) Second, he contends
that Mainwaring took and kept his personal satchel and its contents, which the police did not
direct him to do.
Wal-Mart is correct that there is uncontroverted evidence that Mainwaring and Burner
followed the SPD’s instructions to take possession of the merchandise in the Jeep and have it
delivered to Wal-Mart’s Weirton location, and that sometime over the next few days Weirton
Wal-Mart employees picked up those items. (Mainwaring Dep., Doc. 71-3 at 69; Palmer Dep.,
Doc. 71-6 at 41-42.) It is also uncontroverted that this merchandise that was eventually taken to
the Weirton Wal-Mart was never returned to Mason or handed over to the police and, therefore,
presumably was retained by Wal-Mart.5 Mason argues that this evidence could be construed as
sufficient to show a material dispute over whether Wal-Mart exercised wrongful dominion over
the property to the exclusion of Mason’s rights. Joyce, 551 N.E.2d at 175. Even though WalMart is persuasive that Mainwaring and Burning did not wrongfully take possession of the
property on the night of the incident, Wal-Mart could nevertheless be liable for conversion if its
employees at some point became aware that the property was not stolen from Wal-Mart and, in
fact, rightfully belonged to Mason.
5

There is also some confusion in the record as to the value of the merchandise at issue. Officer
Palmer testified in his deposition that there was $553.60 worth of Wal-Mart property that the
SPD handed over to Mainwaring and Burner that night. (Palmer Dep., Doc. 71-6 at 110.)
Mason, on the other hand, testified that there was just over $500 worth of unopened packages in
the Jeep, some of which came from other stores as well, and he did not know how much of it
came from Wal-Mart. (Mason Dep., Doc. 67 at 60-61, 174.) Therefore, it is undisputed that
Wal-Mart retained certain items worth no more than $553.60 in total, but the exact value is
unknown.
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Unfortunately for Mason, though, there is no testimony from either Burning or
Mainwaring (or anyone else from Wal-Mart) that they were aware that the property was not
stolen. Importantly, Ohio law has traditionally required a demand by the plaintiff and refusal by
the defendant in order to prove the conversion of property otherwise lawfully held. Ohio Tel.
Equip. & Sales, Inc. v. Hadler Realty Co., 493 N.E.2d 289, 292 (Ohio Ct. App. 1985) (citing
Fidelity & Deposit Co. v. Farmers & Citizens Bank, 52 N.E.2d 549, 550 (1943)). In Ohio
Telephone Equipment and Sales, the Ohio Court of Appeals found that “if the original taking was
rightful and no act of dominion or control inconsistent with plaintiff’s ownership had taken
place, a demand and refusal are necessary.” Id. at 292. In that case, the plaintiff had made an
initial demand for the return of the property in question, but the plaintiff had not made that
demand after the defendant lawfully took possession, as the landlord, of the office that held the
property. Id. The court held that in such a case a new demand and refusal was necessary to
establish a claim for conversion. Id. Although here the initial taking of the property may not
have been lawful, the key inquiry is whether it was lawful for Mainwaring and Burning to have
kept the property at the instruction of the SPD. Having found that it was, the Court also finds
Mason must show evidence of a new demand and refusal, which he has not done.
As to the satchel, Mason stated in his deposition that Mainwaring took the satchel, which
contained his checkbook, wallet, and keys, out of the Jeep and brought it into Wal-Mart, and that
Mason never saw the satchel or its contents again. (Mason Dep., Doc. 67 at 178-79.) None of
the officers testified that they saw Mainwaring take the satchel or its contents, and the SPD’s
property inventory form reveals that when Mason was booked, the SPD confiscated his wallet,
checkbook, and keys. (Doc. 78-1 at 23, 24, 26.) Mason’s testimony that Mainwaring took his
satchel and never returned it or the items therein is, therefore, “blatantly contradicted by the

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record” and is insufficient to raise a material issue of fact so as to survive summary judgment.
Scott, 550 U.S. at 380. Accordingly, the Court GRANTS Wal-Mart’s motion for summary
judgment on the conversion claim.
IV.

CONCLUSION

For the foregoing reasons, the Court GRANTS Wal-Mart’s Motion for Summary
Judgment (Doc. 70) on all claims. This case is DISMISSED. The Clerk is directed to enter
Judgment for Wal-Mart.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: May 9, 2016

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