Greenlee et al v. Miami Township Ohio

Filing 29

ORDER AND ENTRY: (1) DENYING PLAINTIFFS MOTIONS TO STRIKE (DOCS. 12 , 14 ); (2) DENYING DEFENDANTS MOTION TO STRIKE (DOC. 28 ) AS MOOT; (3) SUA SPONTE GRANTING PLAINTIFFS LEAVE TO FILE AN AMENDED COMPLAINT WITHIN 21 DAYS FOLLOWING THE COURTS DISPO SITION OF THE REPORT AND RECOMMENDATION HEREIN; (4) GRANTING PLAINTIFFS LEAVE TO FILE THEIR SUMMARY JUDGMENT REPLY MEMORANDUM (DOC. 16 ) OUT OF TIME; (5) GRANTING DEFENDANT LEAVE TO FILE A SUR-REPLY MEMORANDUM (DOC. 18 ) IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT; AND (6) GRANTING PLAINTIFFS LEAVE TO EXCEED THE TWENTY-PAGE LIMITATION WITH RESPECT TO THEIR SUMMARY JUDGMENT OPPOSITION MEMORANDUM (DOC. 24 ) - REPORT AND RECOMENDATION1 THAT: (1) PLAINTIFFS MOTION FOR SUMMARY JUDGMENT (DOC S. 2 , 16 ) BE DENIED; (2) DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT (DOC. 21 ) BE GRANTED; AND (3) PLAINTIFFS MOTION FOR SANCTIONS (DOC. 20 ) BE DENIED( Objections to R&R due by 1/5/2015), Signed by Magistrate Judge Michael J Newman on 12/18/14. (pb1)(This document has been sent by the Clerks Office by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
GLORIA GREENLEE, et al.,
Plaintiffs,

Case No. 3:14-cv-173

vs.
MIAMI TOWNSHIP, OHIO,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

ORDER AND ENTRY: (1) DENYING PLAINTIFFS’ MOTIONS TO STRIKE (DOCS. 12,
14); (2) DENYING DEFENDANT’S MOTION TO STRIKE (DOC. 28) AS MOOT; (3)
SUA SPONTE GRANTING PLAINTIFFS LEAVE TO FILE AN AMENDED
COMPLAINT WITHIN 21 DAYS FOLLOWING THE COURT’S DISPOSITION OF
THE REPORT AND RECOMMENDATION HEREIN; (4) GRANTING PLAINTIFFS’
LEAVE TO FILE THEIR SUMMARY JUDGMENT REPLY MEMORANDUM (DOC.
16) OUT OF TIME; (5) GRANTING DEFENDANT LEAVE TO FILE A SUR-REPLY
MEMORANDUM (DOC. 18) IN SUPPORT OF ITS MOTION FOR SUMMARY
JUDGMENT; AND (6) GRANTING PLAINTIFFS LEAVE TO EXCEED THE
TWENTY-PAGE LIMITATION WITH RESPECT TO THEIR SUMMARY JUDGMENT
OPPOSITION MEMORANDUM (DOC. 24)
***
REPORT AND RECOMENDATION1 THAT: (1) PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT (DOCS. 2, 16) BE DENIED; (2) DEFENDANT’S MOTION
FOR PARTIAL SUMMARY JUDGMENT (DOC. 21) BE GRANTED; AND (3)
PLAINTIFFS’ MOTION FOR SANCTIONS (DOC. 20) BE DENIED

This civil case is before the Court on the parties’ cross-motions for summary judgment.
Docs. 2, 16.

Pro se Plaintiffs Gloria and Kiel Greenlee, a mother and son (hereinafter

collectively referred to as “Plaintiffs”), filed their complaint in this case against Defendant

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

Miami Township, Ohio (hereinafter referred to as the “Township”)2 on June 2, 2014. Doc. 1.
On that same date, without having served the Township with the complaint or the benefit of
conducting any discovery, pro se Plaintiffs filed their initial motion for summary judgment.
Doc. 2. The Township timely filed an answer, doc. 7, and without seeking to take discovery
pursuant to Fed. R. Civ. P. 56(d), also timely filed its memorandum in opposition to pro se
Plaintiffs’ motion for summary judgment. Doc. 9.3 Thereafter, the Township separately filed its
cross-motion for summary judgment. Doc. 16. Pro se Plaintiffs -- again, without seeking to take
discovery or request any other relief pursuant to Fed. R. Civ. P. 56(d) -- filed a fifty-nine page
memorandum in opposition4 and attached ninety-eight separate pages as exhibits thereto.5 Doc.

Notably, the caption of pro se Plaintiffs’ complaint names only the Township as a party, and
names no individual -- including, inter alia, any officer, official, employee of the Township. See doc. 1.
Pursuant to Fed. R. Civ. P 10(a), “[t]he title of the complaint must name all the parties[.]” “[A] party that
is not named in the caption of . . . [a] complaint is not a party to the action.” Bakari v. May, No. 3:10-cv250, 2011 WL 1743728, at *1 n.1 (S.D. Ohio May 6, 2011) (citations omitted). Further, the summons
returned and executed in this case reflects service upon only the Township. Doc. 5 at PageID 37.
3
On August 12, 2014, pro se Plaintiffs filed a separate document captioned as a “Motion for
Summary Judgment.” Doc. 16. The Court construes this separate document as a reply memorandum in
support of Plaintiffs’ earlier motion for summary judgment. The Court, sua sponte, GRANTS pro se
Plaintiffs leave to file the reply memorandum out of time. Subsequently, the Township filed a
memorandum in opposition (doc. 18), which this Court construes as a sur-reply memorandum which the
Court, sua sponte, GRANTS the Township leave to file.
4
Pro se Plaintiffs failed to seek leave of Court to file a memorandum in excess of this Court’s
page limitation. See S.D. Ohio Local Rule 7.2(a)(3); see also Dayton General Order No. 12-01 at 11
(stating that “[m]emoranda in support of or in opposition to any motion shall not exceed twenty pages
without first obtaining leave of Court”). In addition, pro se Plaintiffs failed to include “a combined table
of contents and a succinct, clear, and accurate summary, not to exceed five pages, indicating the main
sections of the memorandum, and the principal arguments and citations to primary authority made in each
section, as well as the pages on which each section and any subsections may be found[,]” as required by
S.D. Local Rule 7.2(a)(3). Although the Court could strike pro se Plaintiffs’ memorandum in opposition
for failing to comply with the Local Rules and Standing General Order of this Court, in the interest of
justice, the Court sua sponte GRANTS pro se Plaintiffs leave to exceed the page limitation nunc pro tunc
and overlooks their non-compliance with the remaining requirements of S.D. Ohio Local Rule 7.2(a)(3).
2
2

24. The Township subsequently filed a reply memorandum in support of its motion for summary
judgment. Doc. 27.
The undersigned has carefully reviewed and considered all of the foregoing documents.
Although these pending motions for summary judgment were filed at the early stages of this case
and in advance of the commencement of discovery, none of the parties has sought relief under
Rule 56(d), and therefore, these motions are now ripe for decision by the undersigned.6
I. UNDISPUTED FACTS7
On November 13, 2013, Plaintiff Kiel Greenlee drove a 1991 black Nissan8 off of the
traveled portion of Interstate 75 in Miami Township, Ohio after hitting black ice. Doc. 1 at
The Township moves to strike or disregard the exhibits attached to pro se Plaintiffs’
memorandum in opposition for a number of reasons including, inter alia, hearsay and lack of
authentication. Doc. 28. The undersigned reviewed and considered the documentation attached to pro se
Plaintiffs’ memorandum in rendering the Report and Recommendation herein. Because none of the
information set forth therein -- whether proper Rule 56 evidence or not (a finding the undersigned
declines to make) -- creates a genuine issue of material fact as to whether the Township maintained an
unconstitutional policy, practice, and/or custom, the undersigned DENIES the Township’s motion to
strike (doc. 28) as moot.
6
Pro se Plaintiffs also filed motions to strike (docs. 12, 14), to which the Township filed
memoranda in opposition (docs. 14, 17). Motions to strike are generally disfavored, and the “drastic
remedy” of striking a filing should “be resorted to only when required for the purposes of justice.” Brown
& Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953) (internal citations
omitted). Plaintiffs initial motion to strike (doc. 12), in substance, argues that the affirmative defenses
asserted by the Township in its answer fail to meet pleading standards, such as the standards set forth in
Bell Atlantic Corp. v. Twombly, 550 U.S. 555 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
“Because the Supreme Court and the Sixth Circuit have not expressly held that heightened pleading
applies to defenses, the Court declines to do so here.” Sprint Solutions, Inc. v. Shoukry, No. 2:14-cv-127,
2014 WL 5469877, at *2 (S.D. Ohio Oct. 28, 2014). In addition to the foregoing, the undersigned finds
that the interests of justice are not furthered by striking any pleadings or responsive memoranda in this
case and, therefore, Plaintiffs’ motions (docs. 12, 14) are DENIED. Plaintiffs have likewise failed to
demonstrate any arguable basis as to why the imposition of sanctions would be appropriate in this case,
nor have they demonstrated compliance with the Rule 11(c)(2) safe harbor provision. See McGhan v.
Kalkaska Cnty. Dept. of Human Servs., No. 1:08-cv-1113, 2009 WL 2170151, at *1 (W.D. Mich. July 20,
2009) (denying a motion for sanctions for failing to comply with Rule 11’s “safe harbor” requirements).
Accordingly, the undersigned RECOMMENDS that pro se Plaintiffs’ motion for sanctions (doc. 20) be
DENIED.
7
The material facts necessary for disposition of the pending motions for summary judgment are
not in dispute. In fact, the Township -- in its answer -- admitted many of pro se Plaintiffs’ factual
assertions. See Fed. R. Civ. P. 56(c)(1)(A) (stating that admissions properly considered in determining a
motion for summary judgment); see also docs. 1, 7.
3
5

PageID 2; doc. 2-1 at PageID 25; doc. 7 at PageID 41. Kiel Greenlee left the damaged vehicle
abandoned in a ditch on the side of the interstate highway. See doc. 2-1 at PageID 25; see also
doc. 21-1 at PageID 193-97.
After receiving a dispatch, Township Police Officer Albert9 located the unoccupied,
damaged vehicle and, after conducting a Bureau of Motor Vehicle (“BMV”) search of its license
plate, determined that the vehicle was registered to Plaintiff Gloria Greenlee. Doc. 1 at PageID
3; doc. 21-1 at PageID 193; doc. 7 at PageID 41. After unsuccessfully attempting to contact
Gloria Greenlee, Officer Albert had the vehicle towed. Doc. 2-1 at PageID 23, 25. As part of
the tow process, Officer Albert searched the vehicle and located an insurance card issued to
Plaintiff Kiel Greenlee. Doc. 1 at PageID 3; doc. 7 at PageID 179. Officer Albert’s background
investigation concerning Kiel Greenlee revealed an active arrest warrant from the Kettering
Municipal Court.10 Doc. 1 at PageID 4; doc. 2-1 at PageID 23.
On November 17, 2013, Officer Albert -- along with Officer Miller and Sergeant
Nienhaus -- went to Plaintiffs’ residence to question Kiel Greenlee about the abandoned car and
arrest warrant. Doc. 2-1 at PageID 23, 27-28. A verbal altercation between Officer Albert and
both Plaintiffs ultimately ensued, during which, according to Plaintiffs, Officer Albert became
“belligerent” and threatened Plaintiffs with a taser.

Id. at PageID 28.

The confrontation

ultimately ended without the arrest of either Plaintiff. See id.

8

The vehicle at issue is registered to Gloria Greenlee, and is transferable on death to Kiel
Greenlee. See Doc. 11-1 at PageID 68. The undersigned assumes for purposes of this Report and
Recommendation -- without deciding -- that both Plaintiffs have standing.
9
Neither Plaintiffs nor the Township provide the full names of Officer Albert, Officer Miller, or
Sergeant Nienhaus. See, e.g., docs. 1, 2-1, 21. In addition, as set forth supra, pro se Plaintiffs have not
named any of these individuals as parties to this litigation nor served them with process. Doc. 1 at
PageID 1, doc. 5 at PageID 37.
10
The Township admits that Officer Albert learned this information upon “running [Kiel
Greenlee’s] name through the NCIC [National Crime Information Center] system.” Doc. 7 at PageID 41.
4

Following this incident, Plaintiffs complained about Officer Albert’s actions to Township
Police Chief Ronald Hess. Doc. 1 at PageID 8; doc. 7 at PageID 42. Chief Hess referred
Plaintiffs’ complaints to Sergeant Fitzgerald for an internal investigation. Doc. 1 at PageID 8;
doc. 7 at PageID 42.

Following the investigation, Chief Hess wrote a letter to Plaintiffs

explaining that the Internal Affairs division investigated and determined that, while the vehicle
had been lawfully towed, Officer Albert and Sergeant Nienhaus acted unprofessionally on
November 17, 2013, and corrective action would be taken against both officers. 11 Doc. 2-1 at
PageID 23-24. Plaintiffs later wrote to the Township Board of Trustees regarding the alleged
civil rights violations. Id. at PageID 25-32.
II. CLAIMS ALLEGED
While pro se parties must satisfy basic pleading requirements, Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989), their pleadings must be liberally construed and are “held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). Liberally construing pro se Plaintiffs’ allegations, the undersigned finds that they
assert constitutional violations arising from the tow and search of their vehicle on November 13,
2013 -- including, inter alia, violations of the Fourth, Fifth and Fourteenth Amendments -- and
the confrontation with Officer Albert at Plaintiffs’ home on November 17, 2013 -- including a
claim that Officer Albert’s threatened use of a taser amounted to excessive force and

11

The letter also stated that the vehicle should have been released to Plaintiffs on November 17,
2013, and accordingly, Chief Hess directed Sergeant Fitzgerald to contact the towing company to remove
the storage bill and release the vehicle. Doc. 2-1 at PageID 24.
5

harassment.12 Doc. 1 at PageID 13-14. As previously noted, pro se Plaintiffs’ claims are
asserted against the Township only -- i.e., no officers, officials or employees of the Township are
parties to this action. Id. at PageID 1-14.
Plaintiffs also allege a number of purported claims against the Township arising under
Ohio law on the basis of vicarious liability, inter alia, a claim for conversion, assault, and
trespass. Doc. 1 at PageID 4, 7-8. In addition to alleging that the Township is liable for these
state law claims on the basis of “vicarious liability,” Plaintiffs also allege that the Township is
not entitled to immunity under to Ohio Rev. Code § 2744.03(A)(5) for these claims. See id.
III. STANDARD OF REVIEW
Generally, motions to dismiss -- and not motions for summary judgment -- are filed at
the early stages of litigation before the close of discovery. See Tucker v. Union of Needletrades,
Indus. and Textile Emps., 407 F.3d 784, 787-88 (6th Cir. 2005) (stating that “[a] motion to
dismiss typically occurs early in the course of litigation, well before discovery has been
completed”). While unusual, the Federal Rules do allow parties to file summary judgment
motions at the commencement of a lawsuit, or soon thereafter, before completion -- or, as in this
case, before initiation -- of discovery. Fed. R. Civ. P. 56(b) (stating that “a party may file a
motion for summary judgment at any time until 30 days after the close of all discovery”). If a
non-movant has not had the opportunity to conduct discovery sufficient to adequately respond to

The Court notes that mere “verbal threats do not constitute a § 1983 claim.” Moore v. Cnty. of
Muskegon, No. 99-1379, 1999 WL 1253096, at *1 (6th Cir. Dec. 17, 1999). Further, “[a] citizen does not
suffer a constitutional deprivation every time he is subject to the petty harassment of a state agent.”
Parate v. Isibor, 868 F.2d 821, 833 (6th Cir. 1989) (citing Vasquez v. City of Hamtramck, 757 F.2d 771,
773 (6th Cir.1985)). However, Courts have found that allegations asserting that pointing a taser “for the
malicious purpose of inflicting gratuitous fear” can “state a cognizable [constitutional] claim[.]” Parker
v. Asher, 701 F.Supp.192, 195 (D. Nev. 1988); see also Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
2001) (stating that “maybe Plaintiff's legal theory -- an excessive force claim for immediate, malicious
threat of electrical shock -- would not be indisputably meritless”).
6
12

a summary judgment motion, Rule 56(d) permits that party to seek an opportunity to conduct
such discovery before responding.
A motion for summary judgment should be granted if the evidence submitted to the Court
demonstrates that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).13 “Summary
judgment is only appropriate ‘if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.’”
Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (quoting Fed. R. Civ.
P. 56(c)). “Weighing of the evidence or making credibility determinations are prohibited at
summary judgment -- rather, all facts must be viewed in the light most favorable to the nonmoving party.” Id. “[T]he standards upon which the [C]ourt evaluates the motions for summary
judgment does not change simply because the parties present cross-motions.” Taft Broad. Co. v.
U.S., 929 F.2d 240, 248 (6th Cir. 1991) (internal citations omitted).
Once “a motion for summary judgment is properly made and supported, an opposing
party may not rely merely on allegations or denials in its own pleading[.]” Viergutz v. Lucent
Tech., Inc., 375 F. App’x 482, 485 (6th Cir. 2010) (citation omitted). Instead, the party
opposing summary judgment “must -- by affidavits or as otherwise provided in [Rule 56] -- set
out specific facts showing a genuine issue for trial.” Id. (citation omitted). Although Courts
liberally review claims by pro se claimants, a properly supported motion for summary
13

This standard differs from the standard the Court must consider in deciding a motion to
dismiss, in which the Court views all allegations as true and in the light most favorable to the non-moving
party. See Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009).
7

judgment must be granted if pro se parties rely solely on the complaint allegations in
opposition. McElhaney v. Elo, No. 98-1832, 2000 WL 32036, at *1-2 (6th Cir. Jan. 6, 2000).
IV. PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Pro se Plaintiffs move for summary judgment on all of their claims. Doc. 2 at PageID
16-18. In their motion, pro se Plaintiffs summarily assert the absence of disputed issues of
material fact and support such conclusory contention by attaching, without further analysis: (1) a
letter authored by Ronald L. Hess, the Miami Township Chief of Police; (2) a letter they sent to
the Township Board of Trustees; and (3) a towing invoice. Doc. 2-1 at PageID 19-33.
As specifically noted by the Sixth Circuit, arguments and issues are waived when
“adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation,” because “it is insufficient for a party to mention a possible argument in the most
skeletal way, leaving the court to . . . put flesh on its bones.” McPherson v. Kelsey, 125 F.3d
989, 995–96 (6th Cir.1997) (citation omitted). Such is the case with regard to pro se Plaintiffs’
motion for summary judgment.
While the Court liberally construes pro se Plaintiffs’ allegations as required by law, the
undersigned declines to develop and research pro se Plaintiffs’ conclusory contentions on
dispositive issues. Cf. Nali v. Ekman, 355 F. App’x 909, 913-14 (6th Cir. 2009) (Sutton, J.,
dissenting); see also Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir. 2001) (concluding that
the Court should not “fill the void by crafting arguments and performing the necessary legal
research” for pro se parties); Sims v. Hastings, 35 F. Supp.2d 715, 718 (N.D. Ill. 2005) (stating
that while “[p]ro se pleadings. . . are to be construed generously . . . [p]recedent also teaches,
however, that a court, of course, should not abandon its neutral role and begin creating
arguments for a party, even an unrepresented one”).
8

Therefore, the undersigned

RECOMMENDS that pro se Plaintiffs’ motion for summary judgment be DENIED, but
without prejudice to re-filing with supporting arguments and evidence.14
V. THE TOWNSHIP’S MOTION FOR SUMMARY JUDGMENT
The Township’s motion for summary judgment focuses solely upon constitutional claims
asserted by pro se Plaintiffs arising from the search and towing of the vehicle on November 13,
2013. See doc. 21 at PageID 185, 187 n.1. The Township presents no arguments regarding any
state law claims or any constitutional claims arising from the confrontation with Township
officers at Plaintiffs’ residence on November 17, 2013. See id. As a result, the undersigned
construes the Township’s motion for summary judgment as a motion for partial summary
judgment arising solely from the search and towing of Plaintiffs’ vehicle.

See Brown v.

Raymond Corp., 318 F. Supp.2d 591, 591 n.1 (W.D. Tenn. 2004), aff’d, 432 F.3d 640 (6th Cir.
2005). Accordingly, Plaintiffs’ § 1983 claims arising from conduct occurring on November 17,
2013 and all state law claims remain pending regardless of the Court’s disposition of the
Township’s motion.
The Township argues that summary judgment is proper on pro se Plaintiffs’
constitutional claims purportedly arising from the search and tow of the vehicle because they: (1)
fail to identify a specific Township policy or custom that caused an alleged constitutional
violation; (2) suffered no Fourth Amendment violation because Officer Albert lawfully towed
14

The undersigned further notes that a moving party with the burden of proof -- typically the
plaintiff -- faces a “substantially higher hurdle” than does a defending party bearing no burden of proof.
Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). When the party with the burden of proof moves for
summary judgment, he or she “must show that the record contains evidence satisfying the burden of
persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.” Id.
Pro se Plaintiffs’ perfunctory motion, equally perfunctory supporting memorandum, and supporting
documentation fail to demonstrate facts concerning their claims “so powerful that no reasonable jury
would be free to disbelieve” them. Id. Accordingly, the undersigned further RECOMMENDS that pro
se Plaintiffs’ motion for summary judgment be DENIED, without prejudice, on this basis as well.
9

the vehicle and conducted a constitutionally proper inventory15 of the car’s contents; and (3)
allege no facts supporting either a due process or equal protection violation. See doc. 21.
Section 1983 imposes liability on any “person who, under color of any statute, ordinance,
regulation, custom or usage, of any State” subjects another to “the deprivation of any rights,
privileges, or immunities secured by the Constitution or laws.” 42 U.S.C. § 1983. To survive
summary judgment, a plaintiff must demonstrate: (1) the deprivation of a right secured under the
Constitution or federal law; and (2) that the deprivation was caused by a person acting under
color of state law. McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 463 (6th Cir. 2006).
Municipalities, such as the Township, are considered persons under § 1983, and “may be
sued for constitutional deprivations.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91
(1978).

However, a municipality cannot be held liable for the acts of its officials on a

respondeat superior theory. Id. at 693. Instead, an official policy or custom must be the
“moving force” behind the alleged constitutional deprivation. See City of Canton v. Harris, 489
U.S. 378, 389 (1989). To demonstrate municipal liability, one must: (1) identify the municipal
policy or custom; (2) connect the policy to the municipality; and (3) show a particular injury of a
constitutional magnitude incurred because of that policy’s execution. Alkire v. Irving, 330 F.3d
802, 815 (6th Cir. 2003) (internal citations omitted).
Here, the Township first contends that the evidentiary record now before the Court fails
to evidence the existence of any official Township policy or custom causing the alleged
“It is settled law that the police may conduct an inventory search of an automobile that is being
impounded without running afoul of the Fourth Amendment.” United States v. Jackson, 682 F.3d 448,
455 (6th Cir. 2012) (citing United States v. Smith, 510 F.3d 641, 650 (6th Cir. 2007)). “In order to be
deemed valid, an inventory search may not be undertaken for purposes of investigation, and it must be
conducted according to standard police procedures.” Id. (quoting Smith, 510 F.3d at 651). “A general
written inventory policy does not grant officers carte blanche when conducting a search; rather, it must be
sufficiently tailored to only produce an inventory.” Id. (citing United States v. Tackett, 486 F.3d 230, 232
(6th Cir. 2007)).
10
15

constitutional violations. See doc. 21 at PageID 183-86. In opposition, Plaintiffs argue that the
Township: (1) has an express municipal policy that caused the alleged constitutional violations;
(2) has a widespread, well-settled practice -- constituting a custom or usage -- that violated their
constitutional rights; (3) ratified the allegedly unconstitutional conduct of Officer Albert by
failing to investigate his conduct; (4) can be held liable due to its failure to act after being
apprised of the alleged constitutional violations; and (5) is liable because a decision of a person
with final policymaking authority caused the alleged constitutional injuries.
A.

Express Policy

In opposing the Township’s motion, Plaintiffs first argue that the Township has an
express unconstitutional municipal policy that caused their alleged injury. “The Monell Court
described a municipal policy as including ‘a policy statement, ordinance, regulation, or decision
officially adopted and promulgated[.]’” Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501
F.3d 592, 607 (6th Cir. 2007) (quoting Monell, 436 U.S. at 690). In seeking to evidence an
express policy, Plaintiffs rely solely upon Chief Hess’s letter, in which he wrote that “the
removal of the vehicle from the accident scene . . . was legal and within our established
policies.” Doc. 2-1 at PageID 23. However, as Plaintiffs acknowledge, Chief Hess’s statement
does “not specifically point[] to the policy itself,” doc. 24 at PageID 239, and Plaintiffs fail to
otherwise place the Township’s policy -- such as an ordinance, regulation, or policy statement -before the Court.
Accordingly, because Plaintiffs fail to evidence any unconstitutional “policy statement,
ordinance, regulation, or decision officially adopted and promulgated by” the Township, see
Monell, 436 U.S. at 690, their contention in this regard has no merit.

11

B.

Widespread, Unwritten Practice

Plaintiffs next argue that Chief Hess’s letter confirms the Township’s “widespread
practice that, although not authorized by written law or express municipal policy, is ‘so
permanent and well settled as to constitute a ‘custom or usage’ with the force of law’” that
caused the alleged constitutional violations. Doc. 24 at PageID 239 (citing City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988)). Plaintiffs have not, however, evidenced -- through Chief
Hess’s letter or otherwise -- a “widespread practice” in the Township resulting in constitutional
violations. Specifically, Plaintiffs point to no evidence of any other incident in which the
Township unconstitutionally towed and searched vehicles left alongside Township roadways.
Even assuming, arguendo, that Officer Albert unconstitutionally towed and searched the
vehicle, “[n]o evidence [in the record presently before the Court] indicates that this was anything
more than a one-time, isolated event.” Fox v. Van Oosterum, 176 F.3d 342, 348 (6th Cir. 1999)
(citing Monell, 436 U.S. at 690-91). As a result, Plaintiffs’ arguments under a custom or usage
theory lack merit as a matter of law. See Webb v. Jessasmine Cnty. Fiscal Ct., No. 5:09-cv-314JMH, 2011 WL 3444091, at *2 (E.D. Ky. Aug. 8, 2011) (granting summary judgment in favor of
the municipal defendant when the evidence showed “at best, individual . . . employees making
decisions and taking actions[,]” as opposed to municipal custom).
C.

Ratification by Failure to Take Remedial Action

Finally, Plaintiffs assert that the Township is liable for Officer Albert’s purportedly
unconstitutional towing and search of the vehicle because it failed to take action against Officer
Albert and/or ratified his conduct through inaction. See doc. 24 at PageID 239-41. To prevail in
this regard, Plaintiffs must show: “(1) a clear and persistent pattern of illegal activity, (2) which
the [municipality] knew or should have known about, (3) yet remained deliberately indifferent
12

about, and (4) that the [municipality]’s custom was the cause of the [violation].” Thomas v. City
of Chattanooga, 398 F. 3d 426, 433 (6th Cir. 2005) (internal citations omitted).
The record presently before the Court is devoid of any evidence demonstrating a clear
and consistent pattern of unconstitutional activity related to the Township’s removal and search
of damaged, unoccupied vehicles from its roads, knowledge of any such pattern, and deliberate
indifference in that regard. Plaintiffs “cannot rely on a single instance to infer a policy of
deliberate indifference.” Id. Accordingly, Plaintiffs’ arguments in this regard lack merit.
D.

Conclusion

When reviewing cases involving municipal liability, the Supreme Court instructs Courts
to adhere to “rigorous standards of culpability and causation . . . to ensure that the municipality is
not held liable solely for its employees’ actions.” Bd. of Cnty. Comm’r of Bryan Cnty., Okla. v.
Brown, 520 U.S. 397, 398 (1997). In this case, viewing the evidence in the light most favorable
to Plaintiffs, the Court finds the record devoid of evidence supporting the existence of a
municipal policy or custom that allegedly violated Plaintiffs’ constitutional rights. Without any
evidence of such a policy or custom -- even if some underlying constitutional harm could be
shown here -- the Township cannot be held liable under § 1983. See Monell, 436 U.S. at 694.
VI. CONCLUSION
For the foregoing reasons, the undersigned DENIES Plaintiffs’ motions to strike (docs.
12, 14) and, further, DENIES Defendants’ motion to strike (doc. 28) as moot. In addition, the
Court, sua sponte, GRANTS: pro se Plaintiffs leave to file their reply memorandum (doc. 16)
out of time, the Township leave to file a sur-reply (doc. 18), and Plaintiffs leave to exceed the
page limitation in its opposition memorandum (doc. 24).

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Because Plaintiffs’ arguments in support of their motion for summary judgment, and in
response to the Township’s motion for partial summary judgment, can be read as an attempt to
assert claims against Officer Albert in his individual capacity (see doc. 24 at PageID 227, 23137, 241-42), the Court sua sponte GRANTS Plaintiffs leave to file an amended pleading to
assert claims against Officer Albert with regard to his alleged conduct on November 13 and 17,
2013. Such amended complaint shall be filed within 21 days following Judge Rice’s disposition
of the undersigned’s Report and Recommendation set forth herein.
In that regard, and based on the foregoing, the undersigned RECOMMENDS that: (1)
pro se Plaintiffs’ motion for summary judgment (docs. 2, 16) be DENIED, but without prejudice
to re-filing on the remaining claims with evidence and developed argumentation; (2) the
Township’s motion for partial summary judgment (doc. 21) be GRANTED on Plaintiffs’ § 1983
claims arising from the tow and search of their vehicle on November 13, 2013; and (3) Plaintiffs’
motion for sanctions (doc. 20) be DENIED.

Date:

December 18, 2014

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

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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 Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

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