Bostic Senior v. Davis et al

Filing 64

OPINION AND ORDER granting Defendants' 61 Motion for Summary Judgment. Signed by Magistrate Judge Chelsey M. Vascura on 3/5/2018. (kpt)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

TEDDY GLEN BOSTIC SENIOR,
Plaintiff,
Case No. 2:15-cv-3029
Magistrate Judge Chelsey M. Vascura

v.
JEANETTE ARLENE DAVIS, et al.,
Defendants.

OPINION AND ORDER
Plaintiff, who is proceeding without the assistance of counsel, filed this action against
Jeanette Arlene Davis, a private citizen, and against the Columbus Police Department,1
Columbus Police Chief Kimberly Jacobs, and Columbus Police Officer Ernest Rice. By Opinion
and Order dated May 8, 2017, the Court granted Ms. Davis’ motion to dismiss. This matter is
before the Court for consideration of the remaining Defendants’ Motion for Summary Judgment.
(ECF No. 61). For the reasons that follow, the Motion is GRANTED.
I.
Plaintiff’s Second Amended Complaint contains the following allegations, provided here
for context. Generally, the Complaint alleges a purported conspiracy and campaign of
harassment executed by Defendants and described by Plaintiff as follows:

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In his Second Amended Complaint, Plaintiff named “the Columbus Police Department of the
City of Columbus, Ohio” as a Defendant. Consistent with previous holdings of this Court
construing pro se complaints against the City of Columbus Police Department as proceeding
against the City of Columbus as a Defendant, the City of Columbus has moved for summary
judgment. See Johari v. City of Columbus Police Dep’t, 186 F. Supp. 821, 825 (S.D. Ohio
2002).

This harassment included entering in Plaintiff’s home and cutting off one
of his pugs nails on her front paw when Plaintiff was not home, poisoning a pug
with anti-freeze which almost cost her her life, using a laser light to blind one of
his pugs causing lost (sic) of eyesight, attacking Plaintiff physically, threats on
Plaintiff’s life coming into Plaintiff home without warrant in an attempt to poison
him by placing harmful substances in his milk, coffee, butter, toothbrush,
threating (sic) Plaintiff life, and his family’s lives. And finally carring (sic) out
threats with the murders of his grandson and son.
(Pl.’s 2nd Am. Compl. 6-7, ECF No. 21.)
More specifically, Plaintiff describes three separate incidents he contends Defendants
orchestrated. First, at approximately 6:40 a.m. on Monday, November 16, 2015, while pulling
into the parking lot of his apartment complex, he became engaged in a verbal altercation with a
female driver. During this altercation, a large man approached Plaintiff and hit him in his throat
and Adam’s apple. The force of the blow caused Plaintiff to temporarily lose his vision and fall
back against his car. The man who had hit Plaintiff then told the other driver that “it was taken
care of.” Plaintiff called the Columbus Police Department and reported the incident, but the
police officers left without investigation. Plaintiff called the police a second time that morning
and an officer arrived, discussed the incident with Plaintiff, and then left. Plaintiff asserts that he
later found out that the female driver and the man who hit him were both Columbus police
officers.
The two additional incidents Plaintiff alleges are that his grandson was killed in a
motorcycle accident in California in July of 2016 and his son was killed in an attack while
attempting to buy marijuana on a bicycle in Columbus in January of 2017. Plaintiff states that
these two incidents “were not accidents” but were “premeditated murders.” He alleges that, with
respect to the death of his son in Columbus, the men involved in his son’s death were Columbus
police officers in “civilians [sic] clothes,” one being Officer Rice. Plaintiff further alleges that

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there were also two F.B.I. agents “who knew this was going to happen but did not [do] a thing to
prevent it.
In moving for summary judgment, Defendants have submitted affidavits and other
evidentiary materials establishing the following. Neither Defendant Jacobs nor Defendant Rice
knows Plaintiff. They did not enter or attempt to enter his home for any purpose and did not
harm or threaten to harm him, his pets, or his property. They did not participate in the
November, 2015 incident. They did not participate in, and were unaware of, the death of
Plaintiff’s grandson. Similarly, they did not participate in, and were unaware of, the death of
Plaintiff’s son. See Affidavit of Kimberley Jacobs, ECF No. 59-1; Affidavit of Ernest Rice, ECF
No. 59-2. Defendants did not engage in or have any awareness of a plot, scheme, campaign, or
conspiracy relating to these alleged events. Id.
Plaintiff filed a memorandum in opposition unaccompanied by any affidavits, deposition
testimony, or other evidence.
II.
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial
burden of proving that no genuine issue of material fact exists, and the court must draw all
reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air
Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.
Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s
assertion of fact,” then the Court may “consider the fact undisputed for purposes of the motion”).
The burden then shifts to the nonmoving party to “set forth specific facts showing that there is a

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genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “The
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Id. at 255 (citation omitted). “The nonmovant must, however, do more than simply
show that there is some metaphysical doubt as to the material facts, . . . there must be evidence
upon which a reasonable jury could return a verdict in favor of the non-moving party to create a
genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cty., 432 F. App’x 435, 441 (6th
Cir. 2011) (internal quotation marks and citations omitted), cert. denied, 565 U.S. 1157 (2010);
see also Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely disputed to
“cit [e] to particular parts of materials in the record”). “When a motion for summary judgment is
properly made and supported and the nonmoving party fails to respond with a showing sufficient
to establish an essential element of its case, summary judgment is appropriate.” Stansberry, 651
F.3d at 486 (citing Celotex, 477 U.S. at 322–23).
III.
The Court has reviewed the parties’ arguments and the evidence submitted by
Defendants. Defendants are entitled to summary judgment with respect to Plaintiff’s claims.
A.

Plaintiff’s § 1983 Claims
As the Court discussed in its previous Opinion and Order, it construes Plaintiff’s Second

Amended Complaint as alleging that his constitutional rights were violated. An individual may
bring a private cause of action for constitutional violations under 42 U.S.C. §1983. To establish
a claim under §1983, a plaintiff must satisfy two elements: (1) that defendants acted under color
of state law and (2) that defendants deprived plaintiff of a federal statutory or constitutional right.
See, e.g., Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978); Searcy v. City of Dayton, 38 F.3d
282, 286 (6th Cir. 1994); United of Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir.

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1992) (per curiam). Section 1983 itself creates no substantive rights but is the means through
which a plaintiff may seek redress for deprivation of rights established in the Constitution or
federal laws. Evans v. Lucas Metro. Hous. Auth., No. 3:15CV389, 2016 WL 7407539, at *5 (N.
D. Ohio Dec. 22, 2016) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
Consequently, the ‘“[t]he first inquiry in any 1983 suit . . . is whether the plaintiff has been
deprived of a right secured by the Constitution and laws of the United States.’” Id. (internal
quotations omitted).
Plaintiff alleges that Defendants conspired to, and did, violate his Fourth Amendment
rights. (See ECF No. 21, PAGEID #145.) For purposes of their Summary Judgment Motion,
Defendants recognize that Plaintiff’s allegations implicate the Fourth Amendment. The Fourth
Amendment protects against unreasonable seizures and states:
The right of the people to be secure in their persons, house, papers and
effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.
U.S. Const. amend IV.
Here, as Defendants recognize, to the extent Plaintiff alleges warrantless entry into his
home, there is no question that “the physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.” Smith v. City of Wyoming, 821 F.3d 697, 709
(6th Cir. 2016) (citations omitted). Similarly, to the extent Plaintiff alleges property damage,
law-enforcement activities that unreasonably damage or destroy personal property, therefore
seizing it within the meaning of the Fourth Amendment, can give rise to liability under § 1983.
Gordon v. Louisville/Jefferson Cnty. Metro Gov’t, 486 F. App’x 534, 540-541 (6th Cir. 2012).
Additionally, to the extent that Plaintiff alleges that force was applied or threatened to be applied

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against him, police officers seize any person who is a “‘deliberate object of their exertion of
force.’” Fisher v. City of Memphis, 234 F.3d 312, 318 (6th Cir. 2000) (quoting Claybrook v.
Birchwell, 199 F.3d 350, 359 (6th Cir. 2000)).
Plaintiff also alleges a conspiracy under § 1983. “A civil conspiracy is an agreement
between two or more persons to injure another by unlawful action.” Spadafore v. Gardner, 330
F.3d 849, 854 (6th Cir. 2003); see also Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985). A
plaintiff is required to demonstrate “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, 771 F.2d at 943-44.
In moving for summary judgment, Defendants argue that, even assuming Plaintiff has
implicated the Fourth Amendment, Plaintiff has failed to submit any evidence demonstrating
their involvement in the incidents alleged. Additionally, Defendants contend that, to the extent
Plaintiff alleges harm to others relating to the deaths of his son and grandson, he has no standing
to assert claims on their behalf and § 1983 does not support a claim for loss of consortium.
Defendants further explain that Plaintiff has failed to provide any evidence in support of these
specific allegations of harm. The Court agrees that Plaintiff has not met his burden here.
Initially, the Court notes that it is well settled that a pro se plaintiff is held to a less
stringent standard than a trained lawyer, and, therefore, the Court is required to construe
Plaintiff’s second amended complaint liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972).
The Court has done so. At the summary judgment stage, however, the Court is required to apply
the evidentiary standards set forth in Rule 56. Black v. Parke, 4 F.3d 442, 448 (6th Cir. 1993).
Rule 56 of the Federal Rule of Civil Procedure, which governs summary judgment
motions, provides in relevant part as follows:

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(c) Procedures.
(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, or 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.
***
(4) Affidavits or Declarations. An affidavit or declaration used to support
or oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.
Fed. R. Civ. P. 56.
The purpose of a summary judgment motion is “‘to pierce the pleadings and to assess the
proof in order to see whether there is a genuine issue for trial.’ Fed.R.Civ.P. 56 (advisory comm.
Notes) (1963).” Vinson v. Cobb, 501 F. Supp. 2d 1125, 1130 (E.D. Tenn. 2007). As a result,
Plaintiff, as the non-moving party, is not entitled to a trial on the basis of his allegations alone.
Rather, in response to Defendants’ motion, Plaintiff is required to come forward with significant
probative evidence to support his claims. This is so “[n]otwithstanding the liberal treatment of
pro se pleadings.” Evans, 2016 WL 7407539, at *4 (citing Black, 4 F.3d at 448). Stated another
way, the liberal pleading standard “does not mean . . . that pro se plaintiffs are entitled to take
every case to trial.” Ashiegbu v. Purviance, 74 F. Supp. 2d 740, 746 (S.D. Ohio 1998).
Instead, once a motion for summary judgment is properly made and supported, an
opposing party, even a pro se party, may not rely merely on allegations or denials in its own
pleading. Viergutz v. Lucent Technologies, Inc., 375 F. App’x 482, 485 (6th Cir. 2010)
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(“[P]laintiff’s status as a pro se litigant does not alter his duty on a summary judgment motion.”).
That is, Plaintiff, as the party opposing summary judgment, “must—by affidavits or as otherwise
provided in this rule—set out specific facts showing a genuine issue for trial.” Id.; see also
United States v. Ninety Three Firearms, 330 F.3d 414, 427-28 (6th Cir. 2003) (there is no rule in
this circuit providing for “special assistance to nonprisoner pro se litigants responding to
summary judgment motions”).
Here, Defendants have submitted affidavits based on their personal knowledge and
additional evidentiary materials demonstrating that they had no involvement with any of the
incidents alleged in Plaintiff’s Second Amended Complaint. As a result, Plaintiff was obligated
to present something more than his own conclusory allegations in support of his claims. He has
not done so. That is, he has not provided any affidavits, deposition testimony, or other evidence
in opposition to Defendants’ motion for summary judgment. Additionally, his complaint was not
verified such that the Court could construe it as an affidavit for purposes of summary judgment.
See El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008) (verified complaint carries same weight as
an affidavit for purposes of summary judgment). Instead, in response, Plaintiff merely disputes
the facts as presented by Defendants, contends that he has stated the truth, and asserts that he has
witnesses who will provide facts and information about this case at trial. Without admissible
evidence to refute Defendants’ affidavits, it is undisputed that Defendants did not engage in any
conduct that violated Plaintiff’s Fourth Amendment rights.
Further, even if Plaintiff presented the allegations in his Second Amended Complaint in
affidavit form, the Court must still grant Defendants Motion for Summary Judgment. Statements
in affidavits that are “nothing more than rumors, conclusory allegations and subjective beliefs . .
. are wholly insufficient evidence.” Metro. Life Ins. Co. v. Kelly, No. 16-cv-12544, 2017 WL

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3085519, at *5 (E.D. Mich. July 20, 2017). “Conclusory statements unadorned with supporting
facts are insufficient to establish a factual dispute that will defeat summary judgment.”
Alexander v. CareSource, 576 F.3d 551, 560 (6th Cir. 2009). Similarly, affidavits based on
hearsay, rather than events directly observed, also are insufficient. Kelly, at *5.
For all of these reasons, Defendants’ motion for summary judgment will be granted as to
Plaintiff’s claims directed to the individual defendants and arising under 42 U.S.C. § 1983.
B.

Municipal Liability
The City of Columbus is also entitled to summary judgment. To prevail in a § 1983 suit

against a municipality, a plaintiff must show that the alleged violation occurred because of a
municipal policy, practice, or custom; a municipality “may not be sued under 1983 for an injury
inflicted solely by its employees or agents.” Monell v. Dep’t of Social Servs., 436 U.S. 658, 694
(1978). Absent an underlying constitutional violation, there is no basis for imposing municipal
liability. Chumley v. Miami County, Ohio, No. 3:14-cv-16, 2015 WL 859570, at *8 (S.D. Ohio
Feb. 27, 2015) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); Meals v. City of
Memphis, 493 F.3d 720, 731 (6th Cir. 2007); McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 471
(6th Cir. 2006); Scott v. Clay Cnty., 205 F.3d 867, 879 (6th Cir.), cert. denied, 531 U.S. 874
(2000)). As explained above, Plaintiff has failed to raise a genuine issue of material fact as to an
underlying constitutional violation. Consequently, Defendants’ Motion for Summary Judgment
will be granted as to any claims against the City of Columbus.
C.

State-Law Claims
Finally, Defendants contend that, to the extent that Plaintiff is attempting to assert any

state-law claims against them, they are immune under Ohio law. With respect to the individual
Defendants, Ohio Rev. Code § 2744.03(A)(6) provides presumptive immunity. None of the

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exceptions to that immunity apply here. Similarly, the City of Columbus is presumptively
immune under Ohio Rev. Code § 2744.02(A)(1), and none of the exceptions found in Ohio Rev.
Code § 2744(B)(1)-(5) apply. Consequently, Defendants’ Motion to for Summary Judgment will
be granted as to any state-law claims.
IV.
For the reasons set forth above, Defendants’ Motion for Summary Judgment (ECF No.
61) is GRANTED.
IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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