Smith v. Montgomery County Sheriff's Office et al

Filing 138

REPORT AND RECOMMENDATIONS - It is respectfully recommended that (1) Defendant Douglas Kowalski's Motion for Summary Judgment, (Doc. 100), be granted;(2) Defendants Montgomery County Sheriff's Office, Michael L. Hild, Jr.'s, Paul Henso n's, and Steven Gardiners Motion for Summary Judgment, (Doc. 101), be granted; (3) [Plaintiff's] Motion for Partial Summary Judgment Against Defendant Henson, (Doc. 110), be denied; (4) [Plaintiff's] Motion for Partial Summary Judgmen t against Defendant Kowalski, (Doc. 111), be denied; (5) [Plaintiff's] Motion for Partial Summary Judgment against Defendant Montgomery County Sheriff's Office, (Doc. 112), be denied; (6) [Plaintiff's] Motion for Partial Summary Judgme nt against Defendant Gardiner, (Doc. 121), be denied; and (7) [Plaintiff's] Motion for Partial Summary Judgment against Defendant Hild, (Doc. 122), be denied. Objections to R&R due by 10/26/2012. Signed by Magistrate Judge Michael R Merz on 10/9/2012. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

BILLY M. SMITH,

:
Case No. 3:10-cv-448
Plaintiff,

-vs-

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

MONTGOMERY COUNTY
SHERIFF’S OFFICE, et al.,

Defendants.

:

REPORT AND RECOMMENDATIONS

This case is before the Court on several motions including Motion for Summary Judgment
of Defendant Douglas Kowalski, (Doc. 100), Motion for Summary Judgment of Defendants
Montgomery County Sheriff’s Office; Michael L. Hild, Jr., Paul Henson; and Steven Gardiner,
(Doc 101), [Plaintiff’s] Motion for Partial Summary Judgment Against Defendant Henson, (Doc.
110), [Plaintiff’s] Motion for Partial Summary Judgment Against Defendant Kowalski, (Doc.
111), [Plaintiff’s] Motion for Partial Summary Judgment Against Defendant Montgomery County
Sheriff’s Office, (Doc. 112), [Plaintiff’s] Motion for Partial Summary Judgment Against
Defendant Gardiner, (Doc. 121), and [Plaintiff’s] Motion for Partial Summary Judgment Against
Defendant Hild, (Doc. 122). The parties have fully briefed the issues raised in all of the pending
Motions, (Doc. 100, 126, 129; Doc. 101, 126, 136; Doc 110, 123; Doc. 111, 117; Doc. 112, 124;
Doc. 121, 133; Doc. 122, 134), and the matters are ripe for report and recommendations. Because
1

this matter involves a pro se litigant it has been referred to the undersigned pursuant to General
Order No. Day12-03, Assignment and Reference to Magistrate Judges (eff. May 15, 2012), for
preparation of a Report and Recommendations under 28 U.S.C. § 636(b).
As this Court recently noted,
… Mr. Smith is acting pro se. The allegations of a complaint drafted
by a pro se litigant are held to less stringent standards than formal
pleadings drafted by lawyers, and will be liberally construed.
Williams v. CSX Transportation Co., Inc. 643 F.3d 502, 510 (6th Cir,
2011), citing Federal Exp. Corp. v, Holowecki, 552 U.S. 389, 402
(2008); see also, Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Estelle v. Gamble, 429 U.S. 97, 106 (1976); McNeil v. United
States, 508 U.S. 106, 113 (1993).
Plaintiff Billy M. Smith filed this action pursuant to 42 U.S.C. §
1983 against the Defendants alleging that they violated his various
constitutional rights when Defendants executed a search warrant on
his residence on February 6, 2009. Doc. 13. Specifically, Mr. Smith
claims that the individual Defendants violated
(1) his Fourth and Fourteenth Amendment rights by: (1) unlawfully
and wrongly seizing his person, causing him unlawful detention
on serious charges that they knew or should have known were
false; (2) unlawfully and wrongly seizing his person in clear
violation of due process; and (3) by unlawfully and wrongly
seizing his person causing him severe injuries and pain;
(2) his Fifth and Fourteenth Amendment rights by: (1) knowingly
and willfully submitting false data regarding the actions or
omissions that led to or justified his detention; (2) conspiring to
suborn perjured law enforcement and witness testimony; (3)
knowingly, willfully, and wrongly concealing information that
would have assisted him in his defense against serious criminal
charges; (4) knowingly, willfully, and wrongfully subjecting
him to lengthy, burdensome, and painful interrogation; and (5)
knowingly, willfully, and wrongfully restraining or obstructing
his due process right to legal counsel; and
(3) his Sixth and Fourteenth Amendment rights to: (1) legal
counsel; (2) proper and just due process: and (3) equal
protection under the law while being seized, being detained,
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being injured and in pain, and being put to a lengthy and
burdensome investigation.
(Amended and Supplemented Complaint, Doc. 13 at 4-6, PageID
189-91.
In addition, Mr. Smith alleges that Defendant Montgomery County
Sheriff’s Department and Montgomery County, Ohio, violated his
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution by
(1) failing to prevent defendants Hild, Henson, Gardiner, and
Kowalski from performing law enforcement functions after they
had used unnecessarily extreme, excessive, and abusive force
during the performance of their duties;
(2) failing to notify the Montgomery County Prosecutor’s Office of
the United States District Attorney’s Office that Defendants
Hild, Henson, Gardiner, and Kowalski were using unnecessarily
extreme, excessive, and abusive force during the performance of
their duties, when it had knowledge of the problem and knew or
should have known these defendants were filing information for
charging him with criminal offenses and the preparing and filing
data and reports which were presented to a court of law knowing
the information, data, and reports were falsely accusing him;
and
(3) failing to notify his attorney or the Montgomery County
Prosecutor’s Office or the United States District Attorney’s
Office that Defendants Hild, Henson, Gardiner, and Kowalski
were falsifying their case files.

Id., PageID 192-93.
The Court previously granted Montgomery County, Ohio’s Motion
to Dismiss and it is no longer a party to this action. Doc. 42, 56, 58.
PageID 2722-24.
The Court recently addressed motions which Mr. Smith included in his “Collective
Response to All Defendants’ Motions for Summary Judgment …” and which the Court treated as
separately filed motions. Doc. 126, 127. In doing so, the Court denied Mr. Smith’s Motion
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Objecting to Undisclosed Evidence and Testimony, Motion for Further Discovery, and his Motion
to Amend and Supplement Complaint and overruled his Objections to Various Affidavits. Doc.
137. Against that background, the Court turns to the present motions.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine dispute1 as to
any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.
56. On a motion for summary judgment, the movant has the burden of showing that there exists
no genuine [dispute] of material fact, and the evidence, together with all inferences that can
reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the
motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). Nevertheless, the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine [dispute] of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). Summary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to
"secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986).
Read together, Liberty Lobby and Celotex stand for the proposition that a party may move
for summary judgment asserting that the opposing party will not be able to produce sufficient
evidence at trial to withstand a Rule 50 motion for judgment as a matter of law. See, Street v. J.C.

1

The word Adispute@ was substituted for Aissue@ in Fed. R. Civ. P. 56 as of December 1, 2010. The

amendment, according to its drafters, did not change the summary judgment standard.

4

Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989). If, after sufficient time for discovery, the
opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria,
summary judgment is appropriate. Id. The opposing party must "do more than simply show that
there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The moving party
[A]lways bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of
"the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any," which it
believes demonstrate the absence of a genuine [dispute] of material
fact.
Celotex, 477 U.S. at 323; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991)
(citation omitted). In ruling on a motion for summary judgment (in other words, determining
whether there is a genuine [dispute] of material fact), "[a] district court is not ... obligated to wade
through and search the entire record for some specific facts that might support the nonmoving
party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494
U.S. 1091 (1990). Thus, in determining whether a genuine dispute of material fact exists on a
particular issue, a court is entitled to rely only upon those portions of the verified pleadings,
depositions, answers to interrogatories, and admissions on file, together with any affidavits
submitted, specifically called to its attention by the parties.
“The fact that both parties have moved for summary judgment does not mean that the court
must grant judgment as a matter of law for one side or the other.” Taft Broad. Co., v. United States,
929 F.2d 240, 248 (6th Cir. 1991). The standard of review for cross-motions for summary judgment
does not differ from the standard applied when a motion is filed by only one party to the litigation.
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Id. The court “must evaluate each party’s motion on its own merits and may not grant summary
judgment in favor of either party … if disputes remain as to material fact.” Id.
The Court will first address the various Defendants’ Motions for Summary Judgment. In
doing so, and with the above-cited principles in mind, at this stage of the litigation and for
purposes of Defendants’ motions, the facts, construed in the light most favorable to Mr. Smith are
as follows.
Defendant Douglas Kowalski is employed as a police officer by the City of Kettering,
Ohio, and was so employed at all times relevant to this action. Affidavit of Douglas Kowalski,
May 31, 2010, Doc. 100, Attachment 1 thereto, PageID 906-09 (Kowalski Aff.). Officer Kowalski
was assigned to the Montgomery County Sheriff’s Office Organized Crime Unit (MCSOOCU)
during the relevant time. Id., PageID 906. Defendant Michael J. Hild, Jr. was employed with the
Montgomery County Sheriff’s Office (MCSO) on February 6, 2009, and had been so employed
since 1991. Affidavit of Michael J. Hild, Jr., May 29, 2012, Doc. 101, Attachment 5 thereto,
PageID 1025-27 (Hild Aff.). Defendant Steven Gardiner was employed with the MCSO on
February 9, 2009, and had been employed with the MCSO since 1995. Affidavit of Steven
Gardner, May 25, 2012, Doc. 101, Attachment 4 thereto, PageID 1019-22 (Gardiner Aff.).
Defendant Paul Henson was employed by the MCSO on February 6, 2009, and has been so
employed since 1999. Affidavit of Paul Henson, May 18, 2012, Doc. 101, Attachment 3 thereto,
PageID 1015-18 (Henson Aff.). On the date relevant to Mr. Smith’s claims, that is, February 6,
2009, Defendant Hild was assigned to the MCSOOCU and he held the rank of Lieutenant, Hild
Affidavit, PageID 1025, and Defendants Gardiner and Henson were both classified as detectives
and were also assigned to the MCSOOCU. Gardiner Aff., PageID 1019; Henson Aff., PageID

6

1015.
On February 6, 2009, the Warren County Drug Task Force (WCDTF) and the federal Drug
Enforcement Agency (DEA) obtained an anticipatory search warrant from a judge of the
Montgomery County Court of Common Pleas for 284 Lensdale Avenue, Dayton, Ohio, Mr.
Smith’s residence. Affidavit of Daniel Schweitzer, May 31, 2012, Doc. 100, Attachment 2 thereto,
PageID 910-921; see also Doc. 101, Attachment 2 thereto, PageID 1000-11 (Schweitzer Aff.)[at
all times relevant to Mr. Smith’s claims, Daniel Schweitzer was employed as a detective with the
WCDTF. PageID 910 and 1000]; Affidavit of William Couch, May 31, 2012, Doc. 100,
Attachment 3 thereto, PageID 922-25, see also, Doc. 101, Attachment 6 thereto, PageID 1028-31
(Couch Aff)[at all times relevant to Mr. Smith’s claims, William Couch was employed as a police
officer with the WCDTF. PageID 922 and 1028]; Affidavit of Brad Williams, May 30, 2012, Doc.
100, Attachment 4 thereto, PageID 926-30; see also Doc. 101, Attachment 7 thereto, PageID
1032-36 (Williams Aff.)[at all times relevant to Mr. Smith’s claims, Brad Williams was employed
as a police officer with the City of Trotwood Police Department. PageID 926 and 1032]. Agents
with the WCDTF and DEA obtained the warrant as part of a reverse buy/sell exchange at the
Lensdale Avenue address involving the sale of eight-hundred (800) eighty milligram (80 mg.)
sham green-colored tablets of OxyContin for the purchase price of Twenty-Nine Thousand
Six-Hundred Dollars ($29,600.00). Schweitzer Aff., PageID 910 and 1000; Couch Aff., PageID
922 and 1028. Because the warrant which WCDTF and DEA agents obtained was to be executed
in Montgomery County, the MCSOOCU assisted with its execution on the basis that it is a
customary law enforcement practice for the local police jurisdiction where a search is to occur to
assist with securing the premises which is the subject of a search warrant. Schweitzer Aff.,

7

PageID 911 and 1001; Couch Aff., PageID 923 and 1029. Defendant Kowalski was not involved
in the investigation of Mr. Smith which led to the obtaining and execution of the search warrant.
Kowalski Aff., PageID 907. Defendant Kowalski was assigned to the ram position, the function of
which is to use a ramming device to break through the entrance when subjects within the home do
not voluntarily permit access. Id. Similarly, members of the MCSOOCU were not involved in the
investigation of Mr. Smith which led to the obtaining of and execution of search warrant.
Schweitzer Aff., PageID 911 and 1001. The MCSOOCU comprised the entry team that was
responsible for securing the residence upon the officers’ entry into it. Id.
On the morning of February 6, 2009, members of the MCSOOCU, including Defendant
Kowalski and other police officers, were informed that they would participate in the execution of
the search warrant at issue. Kowalski Aff., PageID 907; Hild Aff., PageID 1024; Henson Aff.,
Page 1016; Gardiner Aff., PageID1020; Williams Aff., PageID 927 and 1033; Couch Aff, PageID
923 and 1029; Schweitzer Aff., PageID 911 and 1001. On that same morning, prior to the
execution of the warrant, Defendants Kowalski, Hild, Henson, and Gardiner and other members of
the team who had been assigned to the relevant operation attended a pre-operation briefing at the
DEA offices. Kowalski Aff. PageID 907; Hild Aff. PageID 1024; Henson Aff. 1016; Gardiner
PageID 1020; Couch Aff. PageID 923; 1029; Williams Aff. PageID 927 and 1033; Schweitzer
Aff., PageID 911 and 1001. Brad Williams informed those in attendance at the briefing that he had
personal knowledge about Mr. Smith and advised the attendees that Mr. Smith had recently been
involved in an incident involving firearms. Williams Aff. PageID 927 and 1033. Defendant
Henson had previously been a police officer in the Drexel area of Jefferson Township and during
that time had become personally familiar with Mr. Smith because he had been to Mr. Smith’s

8

home on several occasions for police business including calls for vandalism, protection orders,
warrants, and disorderly conduct. Henson Aff. PageID 1016. After the briefing at the DEA offices
was completed, Defendant Hild held an operational meeting with the members of the entry team
concerning the entry into the residence at 284 Lensdale Avenue. Hild Aff., PageID 1024.
After all the briefings were completed, the entry team, including Defendants Kowalski,
Henson, Hild, and Gardiner traveled together to the vicinity of 284 Lensdale Avenue in the
MCSOOCU van and awaited further instructions from the WCDTF. Henson Aff., PageID 1016;
Hild Aff., PageID 1024; Gardiner Aff., PageID 1020. Members of the entry team were dressed in
marked sheriff’s office raid uniforms. Kowalski Aff., PageID 907; Henson Aff., PageID 1016;
Hild Aff., PageID 1024; Gardiner Aff., PageID 1020.
At approximately 11:20 a.m., at the direction of Commander John Burke of the WCDTF,
the entry team of the MCSOOCU began the operation involving the execution of the search
warrant at 284 Lensdale Avenue. Kowalski Aff., PageID 907; Henson Aff., PageID 1017; Hild
Aff., PageID 1024; Gardiner Aff., PageID 1020. A uniformed deputy, Gerald Bemis, knocked on
the door and announced the officers’ presence and purpose. Hild Aff., PageID 1024; Henson Aff.,
PageID 1017; Gardiner Aff., PageID 1020. A period of time passed and nobody inside the
residence responded to Deputy Bemis’ knock, so Defendant Kowalski rammed the door which
then partially opened. Kowalski Aff., PageID 907; Henson Aff., PageID 1017; Hild Aff., PageID
1025; Gardiner Aff., PageID 1021. The entry team subsequently determined that the front door
was barricaded with furniture, specifically, a couch. Kowalski Aff., PageID 907; Henson Aff.,
PageID 1017; Hild Aff., PageID 1025; Gardiner Aff., PageID 1021.
Defendant Gardiner, who was carrying a shotgun, was the first officer to enter the

9

residence. Gardiner Aff., PageID 1021.

While entering, Defendants Gardiner was loudly

announcing, “Sheriff’s Office. Search warrant.” Id. Defendant Henson, who was the second
officer to enter the residence, also announced that the officers were with the Montgomery County
Sheriff’s Office and that they had a search warrant for 284 Lensdale Avenue. Henson Aff., PageID
1017. Defendant Kowalski was the fourth officer to enter the residence and as he was entering, he
heard other officers announce loudly that they were law enforcement officers and they were
serving a search warrant. Kowalski Aff., PageID 908.
After entering through the front door, Defendant Gardiner took a holding position down a
hallway adjacent to the front living room area. Gardiner Aff., PageID 1021. Defendants Henson,
Hild, and Kowalski followed Defendant Gardiner down the hallway. Henson Aff., PageID 1017;
Hild Aff., PageID 1025; Kowalski Aff., PageID 908. Defendant Gardiner saw someone in the
bathroom area. Gardiner Aff., Page ID 1021. Defendants Gardiner, Hild, and Henson heard noise
in the bathroom including water running and a toilet flushing. Id.; Hild Aff., PageID 1025; Henson
Aff., PageID 1017. Defendants Gardiner and Henson began giving the individual in the bathroom
verbal orders to step out of the bathroom, show them his hands, and lay on the floor. Gardiner
Aff., PageID 1021; Henson Aff., PageID 1017.
Mr. Smith avers he did not hear the officers announce their entrance into his residence or
the fact that they were executing a search warrant. Affidavit of Billy M. Smith, July 17, 2012, Doc.
127, Attachment 22 thereto (Smith Aff. No. 1); Affidavit of Billy M. Smith, July 17, 2012, Doc.
127, Attachment 25 thereto (Smith Aff. No. 2). Mr. Smith was in the bathroom, standing in front of
the toilet, and the door was closed. Smith Aff. No. 1, PageID 2450; Smith Aff. No. 2, PageID
2504. Mr. Smith was first aware of the officers’ presence when he heard several persons yelling for

10

him to come out of the bathroom. Smith Aff. No. 1, PageID 2450; Smith Aff. No. 2, PageID 2504.
When he heard the officers yelling, Mr. Smith avers he thought that an individual by the name of
Greg Williamson had brought some people to his residence for the purpose of robbing him. Smith
Aff. No. 1, PageID 2450; Smith Aff. No. 2, PageID 2504. Mr. Smith immediately came out of the
bathroom when he heard the several persons yelling for him to do so. Smith Aff. No. 1, PageID
2450; Smith Aff. No. 2, PageID 2504. Mr. Smith opened the bathroom door with his right hand
and swung it out of his way so that he could exit the bathroom. Smith Aff. No. 1, PageID 2451;
Smith Aff. No. 2, PageID 2504. Mr. Smith was not able to identify the persons in the hallway
because the hallway and living room lights were not on and it was mostly dark in those areas.
Smith Aff. No. 1, PageID 2451; Smith Aff. No. 2, PageID 2505. As he stepped out of the bathroom
doorway, Mr. Smith heard the individuals in the hallway continue to yell, but avers he did not
understand what they were saying. Smith Aff. No. 1, PageID 2451; Smith Aff. No. 2, PageID
2505. Mr. Smith’s understanding of what was being said to him was that he was to come forward
toward the officers who were at the end of the hallway at the living room edge and he did that
without hesitation. Smith Aff. No. 1, PageID 2451. It was Mr. Smith’s understanding of the yelling
that he was to come out of the bathroom and walk forward toward the persons yelling at him and he
did that without hesitation by walking down the narrow hallway toward the living room. Smith
Aff. No. 2, PageID 2405. Mr. Smith also understood that when he was about half-way down the
hallway, he was to get down on the floor. Smith Aff. No. 1, PageID 2451; Smith Aff. No. 2,
PageID 2505. Mr. Smith obeyed the commands because he could see two laser target lights on his
chest and he knew that the persons in the house were pointing guns at him. Smith Aff. No. 1,
PageID 2451; Smith Aff. No. 2, PageID 2505.

11

While Mr. Smith was in the process of getting down onto the floor, some of the officers
came forward toward him, grabbed him by the sweatshirt, and forced him down onto the carpeted
hallway floor. Smith Aff., No. 1, PageID 2451; Smith Aff. No. 2, PageID 2505. It was Defendants
Henson and Gardiner who pulled Mr. Smith to the hallway floor. Henson Aff., PageID 1017;
Gardiner Aff., PageID 1021. As he was pulled down onto the floor, Mr. Smith landed on his
stomach and at least one or perhaps two persons landed on top of his back. Compare, Smith Aff.
No. 1, PageID 2451, with Smith Aff. No. 2, PageID 2505. When Mr. Smith landed on the hallway
floor, his hands and arms were stretched out flat on the floor above his head and were not under his
body at any time during the encounter with the officers in the hallway. Smith Aff. No. 1, PageID
2451. While Mr. Smith was on the floor, because of the amount of weight on him, he found it
difficult to breathe and he tried to push the weight off so that he could breathe. Smith Aff. No. 2,
PageID 2504. In addition, while Mr. Smith was on the floor, he avers there were people yelling at
him to tell them where he had drugs, guns, a safe, and money and other officers were hitting him all
over his body including his head, face, arms, shoulders, back, legs, and rib cage area. Smith Aff.
No. 1, PageID 2451-52; Smith Aff. No 2, PageID 2505. In addition, one or more officers were
stomping on his hands. Smith Aff. No. 1, PageID 2452; Smith Aff. No. 2, PageID 2505. The
beating did not stop until Mr. Smith told the officers the locations of the items they had asked
about such as the money and guns. Smith Aff. No. 1, PageID 2452; Smith Aff. No. 2, PageID
2506. The last general thing that Mr. Smith remembers after the beating was that the officers
handcuffed him in the front of his body and he rolled into a sitting position. Smith Aff. No. 1,
PageID 2452; Smith Aff. No. 2, PageID 2506. At no time did any of the officers tell Mr. Smith that
he was under arrest nor did they tell him that they had a search warrant and no officer ever gave

12

him a search warrant. Smith Aff. No. 1, PageID 2452. After the incident in his residence, Mr.
Smith was dazed, could not remember most of the events that happened after the beating, and most
of his memory came back while he was being treated at the hospital approximately four hours after
the incident. Smith Aff. No. 1, PageID 2452.
At the time this incident occurred, the officers had not yet cleared and secured the other
rooms in the residence. Gardiner Aff., PageID 1021; Hild Aff., PageID 1025. Once Mr. Smith was
placed in handcuffs, Defendants Gardiner, Henson, and Hild secured the remaining rooms in the
residence. Gardiner Aff., PageID 1021; Henson Aff., PageID 1018; Hild Aff., PageID 1026. While
he was in the bathroom, Defendant Henson observed green pills in the toilet and on the bathroom
floor and a cell phone, blood, and eyeglasses on the hallway floor. Henson Aff., PageID 1018.
Defendant Gardiner escorted Mr. Smith, who was walking under his own power, from the
residence to the WCDTF mobile command van which was stationed at the scene. Gardiner Aff.,
PageID 1022. The officers requested that an ambulance be dispatched to the scene because the
officers observed that Mr. Smith had facial injuries. Williams Aff., PageID 927; Couch Aff.,
PageID 923. The officers observed the paramedics arrive and render assistance to Mr. Smith.
Williams Aff., PageID 927; Couch Aff. PageID 923. Officer Williams observed and heard Mr.
Smith refuse additional medical treatment and he (Officer Williams) signed the treatment waiver
form on behalf of Mr. Smith at Mr. Smith’s request. Williams Aff., PageID 927 and 1033 and Ex.
1 thereto, PageID 929 and 1035.
After the members of the MCSOOCU and entry team released Mr. Smith to the WCDTF,
they left the scene. Kowalski Aff., PageID 909; Henson Aff., PageID 1018; Hild Aff., PageID
1026; Gardiner Aff., PageID 1022. No member of the MCSOOCU or entry team including

13

Defendant Kowalski, participated in the interrogation of Mr. Smith. Williams Aff., PageID 927
and 1033; Couch Aff., PageID 923 and 1029.
Prior to interrogating him, Officers Williams and Couch presented Mr. Smith with a
Miranda Waiver form which he executed after waiving his Miranda rights. Williams Aff., PageID
927 and 1033 and Ex. 2 thereto, PageID 930 and 1036; Couch Aff., PageID 923 and 1029 and Ex.
1 attached thereto, PageID 925 and 1031. Mr. Smith was eventually released by Officers Williams
and Couch.
Subsequently, Mr. Smith was charged with resisting arrest in Montgomery County Area 1
Court case number 2009CRB 00209. Smith Aff. No. 1, PageID 2454; Affidavit of Greg Spears,
May 18, 2012, Doc. 101, Attachment 10 thereto, PageID 1042 (Spears Aff.) [at the relevant time,
Mr. Spears was an assistant Montgomery County prosecutor in that court, which is now known as
the Montgomery County Municipal Court, Western Division, and he was assigned to prosecute the
case; PageID 1042]. After the charges were filed, Mr. Spears decided to dismiss the matter on the
basis that Mr. Smith was going to be indicted on felony drug distribution charges. Spears Aff.,
PageID 1043. The matter was dismissed without prejudice on July 29, 2009. Id.
Indeed, based on the search and events of February 6, 2009, on February 2, 2010, Mr.
Smith was charged in this Court by way of Information with conspiracy to possess with intent to
distribute and distribute Oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and with
being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and
924(a)(2). United States v. Smith, No. 3:10-cr-024, Doc. 1 (filed Feb. 2, 2010). Mr. Smith
eventually waived his right to be indicted by the grand jury, entered into a plea agreement with the
United States, and was sentenced to two sixty-month terms of imprisonment to be served

14

concurrently. Id. at Doc. 5, 4, 19.
Section 1983 of Title 42 of the United States Code was adopted as a part of the Civil Rights
Act of April 20, 2871, and reads, as amended:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, of other proper proceeding for redress, except
that in any action brought against a judicial officer, injunctive relief
shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this section,
an Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a statute of the District of
Columbia.
42 U.S.C. 21 1983.
The statute creates a cause of action sounding essentially in tort on behalf of any person
deprived of a constitutional right by someone acting under color of state law. City of Monterey v.
Del Monte Dunesat Monterey, Ltd., 526 U.S. 687, 709 (1999); Memphis Community School
District v. Stachura, 477 U.S. 299, 305-06 (1986); Carey v. Piphus, 435 U.S. 247, 254 (1978). The
purpose of § 1983 is to deter state actors from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to provide relief to victims if such deterrence
fails. Wyatt v. Cole, 504 U.S. 158, 161 (1992). In order to be granted relief, a plaintiff must
establish that the defendant deprived him of a right secured by the U.S. Constitution and the laws
of the United States and that the deprivation occurred under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988); Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155 (1978).
As noted above, Mr. Smith has brought his claims against the MCSO as well as the

15

individual Defendants. However, “the Defendant ‘Sheriff’s Office’ is a subunit of Montgomery
County, and appears not be to an entity, in and of itself, subject to suit.” Elam v. Montgomery
County, 573 F.Supp. 797, 804 (S.D. Ohio 1983); Williams v. Dayton Police Dept., 680 F.Supp.
1075, 1080 (S.D. Ohio 1987)(“the Dayton Police Department and Dayton Police Organized Crime
Unit are sub-units of the city government and are merely vehicles through which the city fulfill its
policing functions … [and a]s such are not proper party defendants….”); see also, Nieves v. City of
Cleveland, 153 Fed.Appx. 349, 350 n. 1 (6th Cir. 2005)(noting district court’s determination that
the Cleveland Police Department was not sui juris and dismissing it as a party to the action).
Accordingly, there is no genuine issue of material fact on this point and the MCSO is entitled to
judgment as a matter of law as to any and all claims Mr. Smith has brought against it.
The Fifth Amendment to the United States Constitution states, in material part, that “No
person shall … be deprived of life, liberty, or property, without due process of law [.]” U.S. Const.
Amend. V. The due process clause of the Fifth Amendment “circumvents only the actions of the
federal government”. Scott v. Clay County, Tenn., 205 F.3d 867, 873 n.8 (6th Cir. 2000)(citations
omitted). Stated differently, the due process clause of the Fifth Amendment does not apply to state
or individual action. Accordingly, to the extent that Mr. Smith has brought claims against the
various Defendants pursuant to the Due Process Clause of the Fifth Amendment, Defendants are
entitled to judgment as a matter of law on those claims.
The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, but an impartial jury of the State and district
where in the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
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witnesses in his favor, and to have the Assistance of Counsel for his
defense.
U.S. Const. amend. VI. The Sixth Amendment protects criminal defendants during trial. Voyticky
v. Village of Timberlake, Ohio, 412 F.3d 669, 679 (6th Cir. 2005). “The Sixth Amendment does not
come into play until the government has committed itself to prosecution.” Burchett v. Kiefer, 310
F.3d 937, 947 (6th Cir. 2002)(citation omitted). Because there was no prosecution in existence on
February 6, 2009, the Sixth Amendment simply has no application to any of Mr. Smith’s claims.
Accordingly, there are no genuine issues of material fact and Defendants are entitled to judgment
as a matter of law on Mr. Smith’s Sixth Amendment claims.
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. “Eighth
Amendment scrutiny is appropriate only after the State has complied with the constitutional
guarantees traditionally associated with criminal prosecution.” Ingraham v. Wright, 430 U.S. 651,
671 n.40 (1977)(citation omitted). “[T]he State does not acquire the power to punish with which
the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in
accordance with due process of law.” Id. As with Mr. Smith’s Sixth Amendment claims, because
there was no prosecution in existence on February 6, 2009, nor a formal adjudication of guilt, the
Eighth Amendment has no application to any of Mr. Smith’s claims. Accordingly, there is no
genuine issue of material fact and Defendants are entitled to judgment as a matter of law on Mr.
Smith’s Eighth Amendment claims.
The Equal Protection Clause of the Fourteenth Amendment provides in part, that no State
shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.,
amend. XIV. “This is ‘essentially a direction that all persons similarly situated should be treated
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alike.’” Jolivette v. Husted, ___ F.3d ___, ___, No. 12-3998, 2012 WL 4051214 *9 (6th Cir. Sept.
14, 2012)(citation omitted). “The central purpose of the Equal Protection Clause of the Fourteenth
Amendment is the prevention of official conduct discriminating on the basis of race.” Washington
v. Davis, 426 U.S. 229, 239 (1976). It prohibits the States from making distinctions that burden a
fundamental right, target a suspect class, or intentionally treat one differently from others similarly
situated without any rational basis for the difference. Vacco v. Quill, 521 U.S. 793, 799 (1997).
Mr. Smith has not alleged nor come forward with any evidence that he is a member of a
suspect class or that Defendants intentionally treated him differently from other who are or were
similarly situated without any rational basis for the difference. To the extent that Mr. Smith has
made claims against Defendants pursuant to the Equal Protection Clause of the Fourteenth
Amendment, there are no genuine issues of material fact and Defendants are entitled to judgment
as a matter of law on those claims.
Mr. Smith has brought several claims against Defendants based on the Due Process Clause
of the Fourteenth Amendment. Mr. Smith seems to claim that Defendants violated his Fourteenth
Amendment due process rights by unlawfully searching his home, unlawfully taking him into
custody, submitting false information to obtain a search warrant, and concealing information that
would have assisted him in his defense against subsequent criminal charges.
The Due Process Clause of the Fourteenth Amendment provides that certain substantive
rights “cannot be deprived except pursuant to constitutionally adequate procedures.” Cleveland
Bd. Of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). To establish a procedural due process
violation under 42 U.S.C. § 1983, a plaintiff is required to demonstrate three elements: (1) that he
had a life, liberty, or property interested protected by the Due Process Clause of the Fourteenth

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Amendment; (2) that he was deprived of that protected interest within the meaning of the Due
Process Clause; and (3) that the defendant did not afford the plaintiff procedural rights before
depriving him of his protected interest. Wedgewood Ltd. Partnership I v. Town of Liberty, Ohio,
610 F.3d 340, 350 (6th Cir. 2010)
The Court will assume, arguendo¸ that all of the allegations Mr. Smith has made against
Defendants relative to his Due Process claims are, in fact, interests protected by the Due Process
Clause. That is, that he has protected interests to not have his home unlawfully searched, to not be
unlawfully taken into custody, to not have false information submitted in support of a search
warrant, and to not have information that would have assisted him in his defense against
subsequent criminal charges concealed from him.
First, the Court notes that Mr. Smith’s claims are somewhat inconsistent. While on the one
hand, he seems to allege that Defendants engaged in the search of his home without benefit of a
warrant, on the other hand, he alleges that Defendants obtained a warrant by using false
information. Nevertheless, for the following reasons, Mr. Smith’s Due Process Clause claims have
no bases in fact.
The undisputed evidence is that Defendants obtained an anticipatory search warrant from a
judge of the Montgomery County Court of Common Pleas for 284 Lensdale Avenue, Dayton,
Ohio, Mr. Smith’s residence. While Mr. Smith claims that he never saw a warrant or that
Defendants ever gave him one, he does not dispute, with any proper Rule 56 evidence, that
Defendants obtained the warrant.2 Further, Mr. Smith has not come forward with any admissible
evidence that any Defendant provided the issuing judge false information in an effort to obtain the

2 The Court notes that Mr. Smith’s own testimony is that he could not remember most of the events that happened
after the beating.

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warrant or that any Defendant concealed information that would have assisted him in his defense
against subsequent criminal charges. Accordingly, there are not genuine issues of material fact and
Defendants are entitled to judgment as a matter of law on any claims Mr. Smith has brought
pursuant to the Due Process Clause of the Fourteenth Amendment.
To the extent that Mr. Smith brings the search warrant, unlawful custody, false
information, and withholding information claims under the Fourth Amendment, those claims
likewise fall because they have no factual support. Additionally, any such Fourth Amendment
claims fail for the following reason.
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures shall not be
violated, and no Warrants shall issue, but upon probable cause….” U.S. Const. amend. IV. “Fourth
Amendment claims arising out of searches occurring prior to a guilty plea and incarceration are
precluded by Heck v. Humphrey, 512 U.S. 477, 487 … (1994), on the grounds that a civil suit
holding that these searches were improper would undermine the basis of Petitioner’s guilty plea
and sentence.” Jacob v. Township of West Bloomfield, 531 F.3d 385, 388 (6th Cir. 2008).
As noted above, based on the search and other events of February 6, 2009, on February 2,
2010, Mr. Smith was charged in this Court by way of Information with conspiracy to possess with
intent to distribute and distribute Oxycodone and with being a convicted felon in possession of a
firearm, he waived his right to be indicted by the grand jury, entered into a plea agreement with the
United States, and on September 9, 2010, the court in that matter sentenced him to, inter alia, two
sixty-month terms of imprisonment to be served concurrently. On the basis of Heck, supra, and
Jacob, supra, there are no genuine issues of material fact and Defendants are entitled to judgment

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as a matter of law on any Fourth Amendment claims Mr. Smith has brought against them.
Mr. Smith has brought a claim of excessive force against Defendants.
The use of excessive force in the execution of a search warrant constitutes a Fourth
Amendment violation. Marcilis v. Township of Redford, ___ F.3d ___, ___, No. 11-1073, 2012
WL 3854793 at *5 (6th Cir. Sept. 6, 2012)(citation omitted). Excessive force claims are analyzed
under the Fourth Amendment’s “reasonableness” standard. Schreiber v. Moe, 596 F.3d 323,
331-32 (6th Cir. 2010). That is, the inquiry is whether the totality of the circumstances justified the
use of force. See Tennessee v. Gardner, 471 U.S. 1, 8-9 (1985). “To determine whether a
constitutional violation based on excessive force has occurred, this Court applies the
objective-reasonableness standard, which depends on the facts and circumstances of each case
viewed from the perspective of a reasonable officer on the scene and not with 20/20 hindsight.”
Marcilis, supra, quoting Binay v. Bettendorf, 601 F.3d 640, 647 (6th Cir. 2010).
Under the doctrine of qualified immunity, “government officials performing discretionary
functions generally are shielded from liability for civil damages insofar as their conduct does not
violate clearly established [federal] statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity seeks to
prevent government officials, such as police officers, from being held liable for reasonable
mistakes of law, fact, or mixed questions of law and fact made while acting within their scope of
authority. Simmons v. Genesee County, 682 F.3d 438, 443 (6th Cir. 2012)(citation omitted). To
determine whether qualified immunity shields a government official’s action from § 1983 liability,
the court applies to two-prong Saucier test and inquires (1) whether the officers violated a
constitutional right and (2) if so, whether that constitutional right was clearly established such that

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a “reasonable official would understand that what he is doing violates that right.” Id., citing
Saucier v. Katz, 533 U.S. 194, 202 (2001), abrogated in part by Pearson v. Callahan, 555 U.S.
223, 236 (2009).
Supreme Court precedent, Michigan v. Summers, 452 U.S. 692,
702-03 … (1981)(footnote omitted), recognizes the dangers
inherent in narcotics-related searches:
[T]he execution of a warrant to search for narcotics is the
kind of transaction that may give rise to sudden violence or
frantic efforts to conceal or destroy evidence. The risk of
harm to both the police and the occupants is minimized if
the officers routinely exercise unquestioned command of
the situation.
Marcilis, ___ F.3d at ___, 2012 WL 3854793 at *6.
Regardless of whether the force allegedly used by the police officers in this case was
greater than necessary, this Court believes, as did the court in Marcilis, that the police officers
could have reasonably believed that their conduct was a lawful means of exercising command of
the situation. The Court bases its belief and ultimate conclusion on several factors.
First, the warrant in this matter authorized the officers to search Mr. Smith’s home for a
large quantity of a narcotic drug as well as for the instrumentalities of drug trafficking. Secondly,
the warrant authorized the officers to search Mr. Smith’s person for those same items. Third, prior
to the officers executing the search warrant, Brad Williams informed the officers that, based on his
personal knowledge, Mr. Smith had recently been involved in an incident involving firearms.
Fourth, prior to executing the warrant, Defendants knew that in the past police had been called to
Mr. Smith’s home for various police-related matters.
In addition to these four factors, the Court is most persuaded by several facts included in
Mr. Smith’s own affidavit. Specifically, as noted above, Mr. Smith testified that the hallway and
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living room lights were not on and that it was mostly dark in those areas. The officers, then, were
operating in a darkened area, executing a warrant for a large quantity of drugs in the home of an
individual with a known history involving firearms. More importantly, however, Mr. Smith, who
initially thought he was going to be the victim of a robbery, admitted that he struggled with the
officers. Smith Aff. No. 2, PageID 2504.
Under the circumstances---(1) a raid on a home where police had been authorized to search
for a substantial amount of drugs; (2) the home of an individual whom police knew had been
involved with firearms; (3) the police operating in a darkened area of the home; and (4) a
struggling suspect---this Court concludes that a reasonable officer would not have known that the
force used here would have been considered excessive. See Marcilis, ___ F.3d at ___, 2012 WL
3854793 at *7. “The contours of the right to freedom from the use of excessive force were not so
clearly established in a particularized sense that a reasonable officer would have known that such
conduct was unlawful [here]”. Id., citing Dorsey v. Barber, 517 F.3d 389, 402 (6th Cir. 2008).
Accordingly, there are no genuine issues of material fact, Defendants are entitled to qualified
immunity in this case and are therefore entitled to judgment as a matter of law on Mr. Smith’s
excessive force claim.
Mr. Smith has also brought a claim against Defendants of “deliberate indifference”
towards his medical needs.
Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary
and wanton infliction of pain proscribed by the Eighth Amendment. Estelle, 429 U.S. at 104.
Pretrial detainees and suspects are “analogously protected from such mistreatment under the Due
Process Clause of the Fourteenth Amendment.” Bell v. Wolfish, 441 U.S. 520, 545 (1979); Barber

23

v. City of Salem, Ohio, 953 F.2d 232, 235 (6th Cir. 1992). The “deliberate indifference” standard
involves a two-pronged analysis which includes both an objective and a subjective component.
Farmer v. Brennan, 511 U.S. 825, 835-37 (1994); Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.
2000). The objective component requires the existence of a “sufficiently serious” medical need,
Farmer, 511 U.S. at 834, and the subjective element requires the detainee to show that the
defendant possessed “a sufficiently culpable state of mind in denying medical care.” Blackmore v.
Kalamazoo Cnty., 390 F.3d 890, 894 (6th Cir. 2004)(citation omitted). Minor cuts and bruises do
not constitute serious medical needs for purposes of a “serious indifference” claim. Lockett v.
Suardini, 526 F.3d 866, 877 (6th Cir. 2008).
First, Mr. Smith’s “serious indifference” claim fails because it is simply not supported by
the facts. As noted above, Mr. Smith has testified that he “was dazed and could not remember most
of the events that happened after the beating” and that most of his memory did not come back until
about four hours later when he was being treated at the hospital. Therefore, Mr. Smith is unable,
and indeed, has failed, to dispute Defendants’ evidence that they saw an ambulance on the scene
and that it had been requested because Mr. Smith had facial injuries. Mr. Smith has also failed to
counter Defendants’ evidence that paramedics rendered initial medical assistance to him and that
he refused additional treatment. Second, Mr. Smith’s “serious indifference” claim fails because he
has not come forward with any evidence that he suffered a “sufficiently serious” medical condition
[injury]. Therefore, there are no genuine issues of material fact and Defendants are entitled to
judgment as a matter of law on Mr. Smith’s “deliberate indifference” claim.
Mr. Smith also claims Defendants are liable to him under § 1983 for failure to protect him
from the alleged excessive force.

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“Generally speaking, a police officer who fails to act to prevent the use of excessive force
may be held liable with (1) the officer observed or had reason to know that excessive force would
be or was being used, and (2) the officer had both the opportunity and the means to prevent the
harm from occurring.” Turner v. Scott,, 199 F.3d 425, 429 (6th Cir. 1997). However, because Mr.
Smith has failed to establish that for purposes of § 1983 any of the Defendants used excessive
force in executing the search warrant or in taking him into custody, his claims for failure to protect
him from preventing the use of excessive force fails. Therefore, there are no genuine issues of
material fact and Defendants are entitled to judgment as a matter of law on Mr. Smith’s “failure to
protect” claim.
Mr. Smith also seems to have raised several state law claims. However, for the following
reasons, those claims fail.
To the extent that Mr. Smith has raised state law claim for assault and battery, any such
claim is barred by Ohio’s one-year statute of limitations. Specifically, Ohio statutory law provides
that actions for assault and battery shall be brought within one year after the cause of action of
accrues. O.R.C. § 2305.111(B). The events which gave rise to this action occurred on February 6,
2009, and Mr. Smith did not file the current action until December 2, 2010, more than twenty-one
months later. (Doc. 1).
Similarly, any state law claim that Mr. Smith has raised for intentional infliction of
emotional distress, is also barred by Ohio’s one-year statute of limitations. The statute of
limitations in Ohio which applies to the intentional infliction of emotional distress can vary
depending on the type of action which gives rise to the claim. Freeman v. City of Lyndhurst, No.
1:09cv2006, 2010 WL 908171 at *3 (N.D.Ohio Mar. 12, 2010), quoting Crist v. Pugin, No. 3:08

25

CV 501, 2008 WL 2571229 at *1-2 (N.D.Ohio June 25, 2008), citing, Stafford v. Clever
Investigations, No. 06AP-1204, 2007 WL 2800333 at *2 (Ohio App. 10th Dist. Sept. 27, 2007).
Generally, the applicable statute of limitations for a claim of intentional infliction of emotional
distress is four years. Freemen, supra. However, when the acts underlying the claim would support
another tort, the statute of limitations for that other tort governs the claim for intentional infliction
of emotional distress. Id. Because Mr. Smith’s intentional infliction of emotional distress claims is
based on the companion assault and battery claim, the one-year statute of limitations applies.
To the extent that Mr. Smith has brought state law negligence claims against Defendants,
any such claims are barred by O.R.C. § 2744.03(A)(6). See Morrison v. Board of Trustees of
Green Township, 529 F.Supp.2d 807, 835 (S.D.Ohio 2007), aff’d, 583 F.3d 394 (6th Cir. 2009);
Hunt v. City of Toledo Law Dept., ___ F.Supp.2d ___, 2012 WL 3075457 at *24 (N.D. Ohio July
30, 2012); see also, Boyd v. Village of Lexington, No. 01-CA-64, 2002 WL 416016 (Ohio App. 5th
Dist. Mar. 14. 2002).
Mr. Smith’s final claim against Defendants seems to be one for malicious prosecution with
respect to the charges of resisting arrest.
In Ohio, the statute of limitations for a claim of malicious prosecution begins to run when a
prosecutor determines not to pursue charges against the plaintiff. Cromartie v. Goolsby, No.
93438, 2010 WL 2333004 at *5 (Ohio App. 8th Dist. June 10, 2010), citing, Froehlich v. Ohio
Dept. of Mental Health, 114 Ohio St.3d 286 (2007). The statute of limitations for malicious
prosecution is one year. Cromartie, supra.
The evidence shows that the state dismissed, without prejudice, the resisting arrest charges
against Mr. Smith on July 29, 2009. As noted, Mr. Smith brought the instant action on December

26

2, 2010, long past the one year statute of limitations had passed.
For the foregoing reasons, there are no genuine issues of material fact and Defendants are
entitled to judgment as a matter of law on all of Mr. Smith’s state law claims.
As noted above, this matter is before the Court on the parties’ cross-motions for summary
judgment. However, because the Court concludes that Defendants are, for various reasons, entitled
to judgment as a matter of law on each and every one of Mr. Smith’s claims, it follows that Mr.
Smith cannot succeed on his various Motions for Partial Summary Judgment.
It is therefore recommended that
(1) Defendant Douglas Kowalski’s Motion for Summary Judgment, (Doc. 100), be
granted;
(2) Defendants Montgomery County Sheriff’s Office, Michael L. Hild, Jr.’s, Paul
Henson’s, and Steven Gardiner’s Motion for Summary Judgment, (Doc. 101),
be granted;
(3) [Plaintiff’s] Motion for Partial Summary Judgment Against Defendant Henson,
(Doc. 110), be denied;
(4) [Plaintiff’s] Motion for Partial Summary Judgment against Defendant
Kowalski, (Doc. 111), be denied;
(5) [Plaintiff’s] Motion for Partial Summary Judgment against Defendant
Montgomery County Sheriff’s Office, (Doc. 112), be denied;
(6) [Plaintiff’s] Motion for Partial Summary Judgment against Defendant
Gardiner, (Doc. 121), be denied; and
(7) [Plaintiff’s] Motion for Partial Summary Judgment against Defendant Hild,

27

(Doc. 122), be denied.
October 9, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See, United
States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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