Bettendorf et al v. Lytle et al
Filing
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ORDER granting 5 Motion for Judgment on the Pleadings. This case is DISMISSED. Signed by Judge Algenon L. Marbley on 9/14/2018. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TRACY BETTENDORF, et al.
Plaintiffs,
v.
CHESTER LYTLE, et al.,
Defendants.
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Case No. 2:17-cv-681
JUDGE ALGENON L. MARBLEY
Magistrate Judge Vascura
OPINION & ORDER
This matter is before the Court on Defendants’ Motion for Judgment on the Pleadings
(ECF No. 5). For the reasons set forth below, Defendants’ Motion is GRANTED.
I. BACKGROUND
A. Factual Background
Defendants Chester Lytle, Jeremy Tuttle, and Peter Shaw are employees of the
Chillicothe Police Department (“CPD”). (ECF No. 1 at ¶ 3). Defendant Keith Washburn is the
Chief of the CPD. (ECF No. 1). Plaintiffs Tracy Bettendorf and Carey Ackley lived together at
192 Yaples Orchard, Chillicothe, Ohio and owned and operated an all-terrain vehicle sales and
service business, Midwest Motorplex, located at 98 Consumer Center Drive, Chillicothe, Ohio.
(Id. at ¶¶ 9-10).
On January 15, 2016, the CPD sought search warrants for both Ms. Bettendorf and Mr.
Ackley’s personal residence and Midwest Motoplex. (ECF Nos. 1-1; 1-2). The affidavits
supporting the search warrants contain the following relevant facts:
Charles Immell contacted Sergeant Tuttle and stated that he paid Midwest
Motoplex, specifically Mr. Ackley, $1220.00 for an extended warranty on a 2014
Polaris RZR 1000 XP EPS UV that Mr. Ackley identified as a new vehicle. Mr.
Immell stated that he needed a repair on the vehicle and attempted to use the
warranty for the repair and found out that the warranty contract was not valid.
Mr. Immell then contacted the warranty company, Preferred Warranties, Inc., and
discovered that his contract was not valid with that company. He then contacted
Mr. Ackley and was given another warranty contract number.
Mr. Immell
contacted Preferred Warranties, Inc. again and was told that this warranty contract
was assigned to a previous customer from Midwest Motoplex and was no longer a
valid warranty contract. Sergeant Tuttle contacted Grace Keuhn from Preferred
Warranties, Inc. who told him that neither of these warranty contracts were valid
for Mr. Immell and Mr. Immell needed to contact Midwest Motoplex regarding
his payment for these warranties.
Mr. Immell has not received any
reimbursement from Midwest Motoplex for this false warranty. Detective Lytle
contacted Mr. Immell who told him that he attempted to get a new vehicle
warranty through Polaris but was told that the vehicle had previously been titled
in Tennessee.
Detective Lytle was contacted by Dennis Ortiz, Risk management/Asset Recovery
Manager for Strategic Funding Source, Inc., New York, New York. Mr. Ortiz
stated that Midwest Motoplex, specifically Mr. Ackley, had applied for funding
through his company in June of 2012. Mr. Ortiz stated that Midwest Motoplex
secured a loan in the amount of $177,500 and that the company was about to
default on the loan, which is why he was investigating it. Mr. Ortiz supplied
Detective Lytle with documents, which included a 2013 tax return. Mr. Ortiz
identified the return as being fraudulent. Detective Lytle inspected the tax
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documents and found that the Form 1040 did not appear to be an original IRS tax
document, finding that the 2013 at the top of the document was in an altered font
different than the one used by the IRS for these documents. Detective Lytle also
found that throughout the document there appeared to be alterations in types of
font as well as size of font changing throughout. Mr. Ortiz stated that Mr. Ackley
had emailed and faxed these documents to his business in order to secure the loan.
Mr. Ortiz stated that he conducted all business with Mr. Ackley over the
telephone, facsimile or computer, and that Mr. Ackley would have been at his
residence or at the business when the transactions occurred.
Detective Lytle was contacted by Mr. Ortiz again, who stated that Mr. Ackley had
applied for an additional loan using a third-party company, Mission Funding. Mr.
Ortiz stated that Mission Funding uses Strategic Funding Source, Inc. as one of its
entities to supply loan monies to companies. Mr. Ortiz supplied Detective Lytle
with Mr. Ackley’s application through Mission Funding indicating that Mr.
Ackley had used a different social security number on this application. Detective
Lytle confirmed that the social security number on the Mission Funding
application was different than Mr. Ackley’s social security number, which was
used on the initial loan he secured through Strategic Funding Source, Inc. In
checking Mr. Ackley’s credit report it was found that both social security
numbers were reported to belong to Mr. Ackley. The social security number used
on the Mission Funding application is a Colorado social security number and was
issued between 1930 and 1951. Detective Lytle has not been able to identify the
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individual that the social security number belonged to, but Mr. Ortiz stated that it
belongs to a deceased female in Colorado.
Detective Lytle was contacted by Connie Jayne who stated that she ordered an
independent suspension kit valued at $34.99 from Midwest Motoplex on January
7, 2016. Ms. Jayne stated that this part was supposed to be in on January 12,
2016, but she attempted to call Midwest Motoplex on that day and again on
January 13, 2016 and received no answer at the business. Ms. Jayne stated that
she left messages, but no one returned her call. She stated that in the afternoon of
January 13, 2016, she went to Midwest Motoplex and found that the business was
locked and appeared to be out of business. Ms. Jayne stated that she paid for the
part she ordered and believes Midwest Motoplex took the money with no
intention of ever ordering the part, since they went out of business.
On January 14, 2016, Detective Lytle went to Midwest Motoplex at 12:00 p.m.
and found that the business was locked and appeared to be out of business.
(ECF No. 1-3; ECF No. 5 at Ex. A). Based on the affidavits presented by Detective Lyle that
contained these supporting facts, Judge John Street of the Chillicothe Municipal Court issued a
search warrant for Ms. Bettendorf and Mr. Ackley’s residence and a search warrant for Midwest
Motoplex. (ECF Nos. 1-1; 1-2).
In the early morning of January 15, 2016, the CPD executed the search warrants. (ECF
No. 1 at ¶ 11). Six to ten police vehicles surrounded the residence, approximately a dozen
officers forcibly entered the home, and the occupants of the home were detained. (Id.). The
officers conducted the search of the residence and the business, seizing several items from each
location, including computers, paperwork, and the Point of Sale (“POS”) system used to conduct
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all business transactions for Midwest Motoplex. (ECF Nos. 1 at ¶ 22; 1-4; 1-5). Plaintiffs
contend that there was paperwork documenting and disproving the factual allegations regarding
the $1220 warranty issued to Mr. Immell, the use of the social security number of a deceased
woman in Colorado, and the failure to deliver a $34.99 prepaid special order vehicle part to Ms.
Jayne, but the officers left the paperwork on a desk in the office area. (ECF No. 1 at ¶¶ 15, 18).
With regards to the social security number, Plaintiffs state that the number was a valid and
legitimate Employer Identification Number (EIN) issued by the Internal Revenue Service
(“IRS”) to Mr. Ackley, and attached documentation to that effect to the Complaint. (ECF No. 16).
After the searches and seizures, Midwest Motoplex was forced to halt operations as a
result of its POS system being seized. (ECF No. 1 at ¶¶ 22, 28). Ms. Bettendorf and Mr.
Ackley’s counsel wrote eight letters to Detective Lytle over the next several months seeking
return of the seized property and discussing the harm the seizure has had on the business. (Id. at
¶ 23; ECF Nos. 10-1 – 10-8). No indictment or charges have ever been filed against Ms.
Bettendorf or Mr. Ackley, but none of their seized property has been returned. (ECF No. 1 at ¶¶
24-26). In addition to the harm caused by Midwest Motoplex going out of business, Ms.
Bettendorf and Mr. Ackley contend that they have suffered irreparable harm to their character
reputation in the Chillicothe community and have had to move out of Ohio. (Id at ¶¶ 27, 28).
B. Procedural Background
On August 3, 2017, Ms. Bettendorf and Mr. Ackley initiated this lawsuit against Officers
Lytle, Tuttle, and Shaw, Chief Washburn, the CPD, and the City of Chillicothe alleging unlawful
search and seizure in violation of 42 U.S.C. § 1983. (ECF No. 1). On December 1, 2017,
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Defendants filed their Motion for Judgment on the Pleadings. (ECF No. 5). The Motion is fully
briefed and ripe for decision.
II. STANDARD OF REVIEW
When a motion for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) is based on the argument that the complaint fails to state a claim upon which relief may be
granted, the Court employs the same legal standard as a Rule 12(b)(6) motion. Morgan v.
Church’s Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987) (“Where the Rule 12(b)(6) defense is
raised by a Rule 12(c) motion for judgment on the pleadings, we must apply the standard for a
Rule 12(b)(6) motion”). The Court will grant the Rule 12(c) motion “when no material issue of
fact exists and the party making the motion is entitled to judgment as a matter of law.”
JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (quoting Paskvan v.
City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991)).
When a party moves for judgment on the pleadings, the Court must construe “all wellpleaded material allegations of the pleadings of the opposing party . . . as true, and the motion
may be granted only if the moving party is nevertheless clearly entitled to judgment.” Id. at 581.
The Court is not required, however, to accept as true mere legal conclusions unsupported by
factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In addition to allegations in the complaint, the Court may take into account “matters of
public record, orders, items appearing in the record of the case, and exhibits attached to the
complaint.” Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997) (citation omitted).
Additionally, the Court “may consider exhibits attached to a motion for judgment on the
pleadings ‘so long as they are referred to in the Complaint and are central to the claims contained
therein.’” Roe v. Amazon.com, 170 F. Supp. 3d 1028, 1032 (S.D. Ohio 2016), aff’d, 714 F.
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App’x 565 (6th Cir. 2017) (quoting Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430
(6th Cir.2008)).
III. ANALYSIS
Ms. Bettendorf and Mr. Ackley bring their claim against Defendants under 42 U.S.C. §
1983. To ultimately prevail, Plaintiffs must show: (1) the deprivation of rights secured by the
Constitution or federal statues (2) caused by a person acting under the color of state law.
Sigley
v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006). Defendants do not dispute that the
officers were persons acting under the color of state law. The only questions that remain are
whether the officers deprived Plaintiffs of a constitutional right, and, if so, whether the officers
are nevertheless shielded from liability by qualified immunity.
The Fourth Amendment protects “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. Amend.
IV. The “baseline for reasonableness of a search or seizure in the home is the presence of a
warrant.” Illinois v. Rodriguez, 497 U.S. 177, 190, 110 S. Ct. 2793, 2802, 111 L. Ed. 2d 148
(1990) (Marshall, J., dissenting). Indeed, the “presence of a search warrant serves a high
function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate
between the citizen and the police. This was done . . . so that an objective mind might weigh the
need to invade that privacy in order to enforce the law.” McDonald v. United States, 335 U.S.
451, 455, 69 S. Ct. 191, 193, 93 L. Ed. 153 (1948). Thus, “except in certain carefully defined
classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it
has been authorized by a valid search warrant.” Groh v. Ramirez, 540 U.S. 551, 560, 124 S. Ct.
1284, 1291, 157 L. Ed. 2d 1068 (2004) (internal quotations omitted) (emphasis added).
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It is undisputed that the officers obtained search warrants to search Ms. Bettendorf and
Mr. Ackley’s property and business on January 15, 2016. Thus, the search “violated plaintiffs’
rights only if the search warrant executed . . . was not supported by probable cause.” Mays v.
City of Dayton, 134 F.3d 809, 813 (6th Cir. 1998).1 Probable cause exists if “the facts and
circumstances are such that a reasonably prudent person would be warranted in believing that an
offense had been committed and that evidence thereof would be found on the premises to be
searched.” Greene v. Reeves, 80 F.3d 1101, 1106 (6th Cir.1996). In determining whether the
warrants are supported by probable cause, this Court “pays great deference to the issuing
[judge’s] determination as to probable cause and recognizes that such a finding should not be set
aside unless arbitrarily exercised.” Mays, 134 F.3d at 814.
When the Fourth Amendment requires “a factual showing sufficient to comprise
‘probable cause,’ the obvious assumption is that there will be a truthful showing.” Franks v.
Delaware, 438 U.S. 154, 164–65, 98 S. Ct. 2674, 2681, 57 L. Ed. 2d 667 (1978) (emphasis in
original) (internal quotations omitted). This does not mean “that every fact recited in the warrant
affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon
information received from informants, as well as upon information within the affiant’s own
knowledge that sometimes must be garnered hastily.” Id. It “surely” requires, however, that
“the information put forth is believed or appropriately accepted by the affiant as true.” Id. A
“party may only challenge the veracity of an affidavit if that party can make a substantial
preliminary showing that a false statement knowingly and intentionally or with reckless
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The Fourth Amendment would also be violated if the warrant was not supported by a sworn affidavit or
did not describe with particularity the place of the search or the evidence sought. U.S. CONST. Amend.
IV (“[N]o 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.”); Groh, 540 U.S.
557. Plaintiffs do not argue that the warrants were defective in these respects, however, and thus they are
not addressed here.
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disregard for the truth, was included by the affiant in the warrant affidavit, and that the allegedly
false statement was necessary for a finding of probable cause.” Mays, 134 F.3d at 815 (quoting
Franks, 438 U.S. at 155-56 (1978)).
Defendants argue that the warrant was based on probable cause, as found by Judge Street,
and thus Ms. Bettendorf and Mr. Ackley were not deprived of their constitutional rights. (ECF
No. 5 at 7).
Ms. Bettendorf and Mr. Ackley argue that there were false and material
misstatements in the warrants, and that the officers knew the facts to be untrue and unsupported,
in violation of the Fourth Amendment. (ECF No. 10 at 5-6). As Defendants point out, however,
Ms. Bettendorf and Mr. Ackley have not sufficiently pled facts to support their arguments.
Plaintiffs must allege that a false statement in the affidavits were made knowingly and
intentionally or with reckless disregard for the truth, and that the allegedly false statement was
necessary for a finding of probable cause. Franks, 438 U.S. at 155-56 (1978). This they have
not done.
While Plaintiffs’ Complaint states that there is “paperwork documenting and disproving
the allegations” in the affidavits, the Complaint does not sufficiently plead any supporting facts
to back the contention that the factual statements used to grant the warrant are false. (See ECF
No. 1 at ¶ 18). The only supporting fact pled is that the allegedly false social security number
used by Mr. Ackley is in reality an EIN issued by the IRS. (ECF No. 1 at ¶¶ 19-20). Merely
because it turned out that Mr. Ackley had an EIN that matched the allegedly false social security
number, however, does not mean that there was not probable cause to issue a warrant, based on
the facts known at the time—including that a third party reported the use of a false social
security number and the detective’s credit history search showed that Mr. Ackley used two social
security numbers. There is no allegation in the Complaint that Mr. Ortiz did not actually tell
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Detective Lytle that Mr. Ackley used a false social security number, or that Mr. Ackley’s credit
report did not actually return two social security numbers, one of which did not belong to him.
Further, there is no allegation that Detective Lytle knew the allegedly false social security
number was an EIN. Even if Detective Lytle’s failure to determine that the number was an EIN
constitutes “reckless disregard,” (a finding that the Court need not make), the other facts alleged
in the affidavits are sufficient to support probable cause. The facts as stated in the affidavits—
and not challenged in the Complaint—indicate that a tax document was altered and fraudulently
submitted to obtain a loan,2 a customer reported that he was given two invalid warranties and
incorrectly told that a used vehicle he purchased was new, and another customer reported that
she never received a part she paid for and believed the business had closed down with no
intention of sending her the part. (ECF No. 1-3; ECF No. 5 at Ex. A).
Even if the Plaintiffs adequately pled that the facts contained in the affidavits were false,
the Complaint does not sufficiently plead that any of the individual officers knew the factual
allegations used to obtain the warrants were false or that the statements were made with reckless
disregard for the truth. (See ECF No. 1 at ¶ 18). The closest the Complaint comes to asserting
that the Defendants knew or should have known the allegations were false is the following
statement: “The lack of factual support for the allegations contained in the affidavit to the search
warrant, as well as the material misrepresentations made therein, were immediately brought to
the Defendants’ attention.” (Id. at ¶ 21). There are no facts alleged, however, to show which of
the Defendants made the material misrepresentations, which facts outlined in the affidavits were
2
Interestingly, the Complaint does not even mention this factual allegation. See (ECF No. 1 at ¶ 15)
(listing the “three factual allegations . . . offered by CPD in support of the requested warrants” as “(1)
failure to issue an extended warranty worth $1220 on a vehicle, (2) using the social security number of
deceased woman living in Colorado, and (3) failure to deliver a $34.99 prepaid special order vehicle
part.”).
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material misrepresentations, or whether the material misrepresentations were necessary for a
finding of probable cause. The statement is merely conclusory, and therefore the Complaint fails
to state a claim upon which relief can be granted. See Meeks v. Larsen, 611 F. App’x 277, 284
(6th Cir. 2015) (finding plaintiffs fell “far short of their obligation to present well pleaded, nonconclusory allegations” when complaint “repeatedly assert[ed] that Haug ‘omitted materially
important information’ and ‘deliberately provided false information’ to Leslie Larsen and Sandra
Larsen, and that Sandra Larsen deliberately or recklessly ‘asserted unfounded and speculative
opinions and conclusions’ in the warrant affidavit” but complaint did not “identify any
statements in the warrant affidavit that are alleged to be false or materially incomplete” and
“made no effort beyond making conclusory statements to establish that, even if [a paragraph in
the affidavit] were false, it was deliberately or recklessly so, or that it was material to the finding
of probable cause”); Humes v. City of Blue Ash, No. 1:12-CV-960, 2013 WL 2318538, at *5
(S.D. Ohio May 28, 2013) (finding Plaintiffs’ Complaint failed to state a plausible Fourth
Amendment claim because it did “not allege any facts to support the naked assertion that
Detective Gerhardt fabricated the existence of the confidential informant” to receive the
warrant).3
In addition to the § 1983 claims against Officers Lytle, Tuttle, and Shaw, Ms. Bettendorf
and Mr. Ackley bring supervisory claims against Chief Washburn for allegedly condoning and
acquiescing to repeated constitutional violations, and claims against CPD and the City of
Chillicothe for inadequate training, supervision, investigation, and discipline of officers (ECF
No. 1 at ¶¶ 40, 45, 47).
Because no constitutional violation by the officers have been
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Because the Court finds that Ms. Bettendorf and Mr. Ackley have not sufficiently alleged that their
constitutional rights were violated, the Court need not reach the issue of qualified immunity. See May,
134 F. 3d at 813 (stating that the issue of qualified immunity becomes moot if the court determines that
the detective had probable cause to obtain a search warrant and plaintiffs’ 1983 claim fails).
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established, these Defendants cannot be held liable under § 1983. See Watkins v. City of Battle
Creek, 273 F.3d 682, 687 (6th Cir. 2001) (dismissing claims against Sheriff and City because no
constitutional violation by the individual defendants was established).
IV. CONCLUSION
For the reasons discussed above, the Court finds that the warrants were supported by
probable cause, and Ms. Bettendorf and Mr. Ackey’s Complaint fails to sufficiently plead that
any of the officers knowingly made false statements or made statements with reckless disregard
for the truth. Defendants’ Motion for Judgment on the Pleadings (ECF No. 5) is therefore
GRANTED and this matter is hereby DISMISSED.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
Dated: September 14, 2018
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