Jones v. City of Elyria, Ohio et al, No. 1:2018cv00929 - Document 47 (N.D. Ohio 2018)
Court Description: Opinion & Order signed by Judge James S. Gwin on 11/8/18. The Court, for the reasons set forth in this order, grants in part and denies in part defendants' motion for summary judgment. The Court grants defendants' motion to strike Jones' expert report supplemental exhibit supporting his opposition, but without prejudice to the expert Report's use at trial, and denies defendants' motion to strike the Camel Declaration. (Related Docs. 33 and 44 ) (D,MA)
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Jones v. City of Elyria, Ohio et al Doc. 47 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO CODY JONES, Plaintiff, vs. CITY OF ELYRIA, OHIO, et al., Defendants. : : : : : : : : : : : : CASE NO. 1:18-cv-929 OPINION & ORDER [Resolving Docs. 33, 44] JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Plaintiff Cody Jones sues City of Elyria Police Officers Anthony Weber, Nicholas Chalkl—y, an– Pa“’— M“tch—ll (coll—ct“v—ly, O‘‘“c—r D—‘—n–ants ); Elyr“a Pol“c— D—partm—nt Chief Duane Whitely; and the City of Elyria, Ohio. On September 24, 2018, Defendants moved for summary judgment.1 For the following reasons, the Court GRANTS IN PART and DENIES IN PART Defendants mot“on. I. Background Plaintiff Jones makes claims related to an April 23, 2016 encounter he had with Officer Defendants. He says an illegal stop and arrest led to an involuntary hospital commitment and criminal prosecution that flowed from the April 23, 2016 events. A grand jury indicted Jones for the crimes of resisting arrest, obstructing official business, and assaulting a peace officer. The grand jury based its indictment on testimony derived from 1 Doc. 33. Plaintiff Jones opposes. Docs. 39, 40. Defendants reply. Doc. 41. In conjunction with the summary judgment motion, Defendants also ‘“l—– ‘ull tr“al transcr“pts ‘rom Jon—s 2017 cr“m“nal tr“al, as w—ll as th— –—pos“t“ons o‘ Jones, Weber, and Mitchell for this action. Docs. 34, 35, 36, 37, 38. Dockets.Justia.com Case No. 1:18-cv-929 Gwin, J. Officer Defendants police report narratives.2 After a witness bystander testified at trial,3 a jury found Jones not guilty.4 II. Legal Standard Summary ”u–’m—nt “s prop—r wh—n th—r— “s no ’—nu“n— –“sput— as to any mat—r“al fact an– th— movant “s —nt“tl—– to ”u–’m—nt as a matt—r o‘ law. 5 The moving party first must show that there is no genuine dispute as to a material fact entitling it to judgment. 6 If the moving party makes this showing, the nonmoving party then must set forth specific facts in the record not its allegations or denials in pleadings showing a triable issue.7 The Court views the facts and all factual inferences in the light most favorable to the nonmoving party.8 III. Preliminary Evidentiary Matters Defendants move to strike Plaintiff Jon—s expert report supplemental exhibit that Jones belatedly filed in support of his opposition.9 Defendants concede that Jones timely disclosed the expert report for trial. The Court GRANTS D—‘—n–ants mot“on to strike the expert report as a supplemental exhibit, but without prejudice as to its use at trial. Defendants also move to strike witness Dom“n“qu— Cam—l s –—clarat“on as an exhibit supporting Jon—s opposition on the ground that Jones failed to timely identify 2 Doc. 39-6; Doc. 33-5. Doc. 35 at 339 361. See also Doc. 35 at 82 93. 4 Doc. 39-9. 5 Killion v. KeHE Distributors, LLC, 761 F.3d 574, 580 (6th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). 6 See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 7 See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). 8 Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002). 9 Doc. 44. 3 -2- Case No. 1:18-cv-929 Gwin, J. Camel in his initial disclosures.10 At the status conference, however, Jon—s counsel told the Court that their private investigator had just located Camel and that they promptly –“sclos—– Cam—l s “–—nt“ty to Defendants thereafter. The Court finds this to be good cause for the delay, and DENIES D—‘—n–ants mot“on to strike Cam—l s –—clarat“on. IV. Discussion A. Federal Law Qualified Immunity Once a defendant raises a qualified immunity defense to a 42 U.S.C. § 1983 claim, the plaintiff bears the burden of proving that the defendant is not entitled to the defense.11 In considering a qualified immunity defense, the Court asks: (1) viewing the evidence in the light most favorable to the plaintiff, whether the officer violated a constitutional right; and (2) whether that right was clearly established, such that a reasonable officer would know that his conduct was unlawful in that situation.12 B. State Law Statutory Immunity Ohio law generally immunizes political subdivisions from civil liability for injuries allegedly caused by an act of the subdivision or its employees in connection with a governmental function.13 This immunity extends to government officials sued in their official capacities.14 Jon—s state law claims against Elyria and official-capacity Defendants concern their arrest and prosecution of Jones. These are acts made in connection with a 10 Doc. 41 at 2. 11 Smoak v. Hall, 460 F.3d 768, 778 (6th Cir. 2006). Id. at 777 78. 12 13 Ohio Rev. Code § 2744.02(A)(1). See Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1245 (6th Cir. 1989) (explaining that claims against officialcapacity defendants are treated as claims against the government entity). 14 -3- Case No. 1:18-cv-929 Gwin, J. government function,15 and they do not fall under an exception.16 The Court GRANTS summary judgment for Elyria and official-capacity Defendants on all state law claims. Ohio law also immunizes political subdivision employees from civil liability when they are sued in their personal capacities for the same claims, unless an employee acts w“th malicious purpose, in bad faith, or in a wanton or reckless manner. 17 The Court considers individual-capac“ty D—‘—n–ants state immunity defense below. C. Claims Against City of Elyria and Chief Whitely Separate from the Monell claims, Plaintiff Jones brings Fourth Amendment false arrest and malicious prosecution § 1983 claims against Elyria. Because a municipality cannot be liable under § 1983 simply because one of its employees violated a pla“nt“‘‘ s constitutional rights,18 the Court GRANTS summary judgment for Elyria on these claims. Separate from the supervisory liability § 1983 claim, Jones brings federal and state false arrest, federal and state malicious prosecution, and intentional infliction of emotional distress claims against Chief Whitely. Because the undisputed facts show that Chief Whitely is not personally liable for these claims, the Court GRANTS summary judgment for Whitely. D. Fourth Amendment False Arrest A federal false arrest claim requires (1) an arrest (2) that lacks probable cause.19 The Fourth Amendment protects persons from unreasonable governmental searches 15 Ohio Rev. Code § 2744.01(C)(2)(b), (i) (power to preserve peace and suppress disturbances, and law enforcement). 16 Ohio Rev. Code § 2744.02(B). 17 Ohio Rev. Code § 2744.03(A)(6)(b). 18 See Smith v. City of Troy, Ohio, 874 F.3d 938, 946 (6th Cir. 2017). 19 Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010) (citation omitted). -4- Case No. 1:18-cv-929 Gwin, J. and seizures.20 These protections extend to Terry stops brief investigatory stops that fall short of traditional arrest.21 To make a Terry stop, a police officer must show objective grounds for reasonable suspicion to believe that the person stopped is, or is about to be, engaged in criminal activity.22 Reasonable suspicion —x“sts wh—n an o‘‘“c—r can po“nt to sp—c“‘“c an– art“culabl— facts which, taken together with rational inferences from those facts, reasonably warrant th[—] “ntrus“on. 23 Inarticulable hunches or generalized suspicions are insufficient.24 [I]t has lon’ b——n cl—arly —stabl“sh—– that an o‘‘“c—r n——–s —v“–—nc— o‘ cr“m“nal“ty or dangerousness before he may detain and [frisk] a law-ab“–“n’ c“t“z—n. 25 Lingering on the side of a road does not constitute such evidence even late at night, in a high-crime area, without a nearby car, and without evident purpose. 26 Under Terry, a police officer who makes a valid investigatory stop may conduct a limited pat-down of a suspect's outer clothing. But the pat-down may be conducted only if the officer has a reasonable belief that the detaine— pos—s a thr—at to th— o‘‘“c—r s safety or the safety of others. The pat-down must be limited to a search for weapons. To justify a pat-down during such a Terry stop, the officer must reasonably suspect that the person stopped is armed and dangerous.27 20 U.S. Const. amend. IV. 21 United States v. Sokolow, 490 U.S. 1, 7 (1989) (citation omitted). United States v. Cortez, 449 U.S. 411, 417 (1981). 23 Terry v. Ohio, 392 U.S. 1, 21 (1968). 24 Id. at 27 (r—asonabl— susp“c“on cannot b— bas—– on o‘‘“c—r's “nchoat— an– unpart“cular“z—– susp“c“on or hunch ). See also United States v. Beauchamp, 659 F.3d 560, 570 71 (6th Cir. 2011) (Terry stop of drug defendant 22 was not supported by reasonable suspicion though defendant was observed at 2:30 am in a high-drug complaint housing project and even though the defendant hurriedly walked away from a police officer while avoiding eye contact). 25 Wilkerson v. City of Akron, Ohio, No. 17-4108, 2018 WL 4959674, at *3 (6th Cir. Oct. 15, 2018) (alterations in original) (quoting Northrup v. City of Toledo Police Dep't , 785 F.3d 1128, 1133 (6th Cir. 2015)). 26 Id. (quoting Fam“ly S—rv. Ass n —x r—l. Co“l v. W—lls Twp., 783 F.3d 600, 604 05 (6th Cir. 2015)). 27 Arizona v. Johnson, 555 U.S. 323, 327 (2009). See also Northrup, 785 F.3d at 1131 32 (frisk not justified -5- Case No. 1:18-cv-929 Gwin, J. Probable cause for an arrest can develop during the course of a Terry stop.28 An officer has probable cause to make an arrest when the facts and circumstances within her knowledge and of which she had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the [individual] had committed or was comm“tt“n’ an o‘‘—ns—. 29 Viewing the evidence in Jon—s favor, Officer Defendants did not have reasonable suspicion to stop and frisk Jones. Officer Defendants based their stop solely on the called-in report that a white male was picking food out of a dumpster. Defendants only state (once, in the reply brief, without elaboration) that O‘‘“c—r W—b—r was con–uct“n’ a w—l‘ar— ch—ck wh—n h— –—ta“n—– Jon—s.30 Defendants do not say that Officer Defendants suspected the garbage-picker of criminal activity. In any event, when they approached Jones, Jones was not even near the dumpsters. He was just a white male in the same populated shopping plaza speaking with two women. Viewing the evidence in the light most favorable to Jones, Jones was peaceably speaking with witness Ruth Kennedy and her boss when Officer Defendants first noticed Jones and decided to approach him.31 K—nn—–y t—st“‘“—– that Jon—s was v—ry n“c—, an– neither felt threatened by Jones nor believed him to be to be intoxicated or otherwise remarkable in any way.32 Su‘‘“c“—nt —v“–—nc— supports Jon—s cla“m that th— O‘‘“c—r because 911 report and officer observation that pedestrian was openly carrying handgun where state law permitted open carry of firearms, did not create legitimate concern for officer's safety). 28 See, e.g., United States v. Garza, 10 F.3d 1241, 1246 (6th Cir. 1993). 29 Wesley v. Campbell, 864 F.3d 433, 439 (6th Cir. 2017) (brackets and citation omitted). 30 Doc. 41 at 8. 31 Doc. 37 at 18:5 24:5; Doc. 35 at 340:19 345:9. 32 Doc. 35 at 340:19 345:9. -6- Case No. 1:18-cv-929 Gwin, J. Defendants did not have reasonable suspicion to allow them to stop Jones. Without reasonable suspicion for the stop, the frisk cannot be lawful. Even if Officer Defendants reasonably suspected Jones of criminal wrongdoing, Defendants argument that the pat-down was justified because Jones returned his hands to his pockets after being told not to rests on disputed facts.33 Although he has given somewhat confused testimony, Jones has testified: And he made sure to let me know, you know, Keep your hands away from your pockets. Hands out of your pockets. And I obliged. And I, compliantly, put my hands on th— car, as h— ha– ask—–. 34 Moreover, it is illogic that Jones actually returned his hands to his pockets after receiving a claimed direction not to put his hands in his pockets. No contraband or w—apon was —v—r ‘oun– “n Jon—s pock—t. W“th no r—ason to r—turn h“s han–s to h“s pockets, it is not believable that Jones violated any direct command to keep his hands away from his pockets. And given the circumstances, it would not lead an officer to reasonably suspect that Jones was armed and dangerous.35 The Court finds that Officer Defendants arrested Jones during the pat-down when they tackled him to the ground, as they concede,36 if not earlier when Officer Defendants initially put Jones on the vehicle for a pat-down.37 33 While it appears that Jones admits to returning his hands to his pockets during the pat-down, see Doc. 36 at 46:21 24, it does not appear that he admits to doing so before the pat-down, see Doc. 36 at 36:12 37:13; Doc. 35 at 365:16 366:2. 34 Doc. 35 at 365:24 366:2. 35 Contrary to D—‘—n–ants ass—rt“ons, United States v. Bohannon, 225 F.3d 615 (6th Cir. 2000), does not support their argument. In Bohannon, officers encountered the defendant when they were about to conduct a nighttime raid on a residence suspected o‘ b—“n’ an “ll—’al –ru’ op—rat“on s laboratory. Id. at 617 18. The d—‘—n–ant s ‘am“l“ar“ty w“th the r—s“–—nc— s pr—m“s—s ’av— th— o‘‘“c—r r—asonabl— susp“c“on that he was involved in criminal activity and also armed. Id. at 619 20. Th—n, a‘t—r th— –—‘—n–ant tw“c— “’nor—– th— o‘‘“c—r s r—qu—st that h— k——p h“s han–s out o‘ h“s pock—ts an– act—– nervous during the stop, the officer concluded that he was both armed and dangerous, and conducted a pat-down. Id. 36 Doc. 33-1 at 7, 10 11, 13 14. 37 See Sutton v. Metro. Gov't of Nashville & Davidson Cty. , 700 F.3d 865, 873 74 (6th Cir. 2012) (explaining -7- Case No. 1:18-cv-929 Gwin, J. Jones lack-of-probable-cause evidence shows a genuine issue for trial. Two uninvolved witnesses testify that Jones was cooperating and had not resisted Officer Defendants before they took him to the ground.38 D—‘—n–ants argument that Officer Defendants had probable cause to arrest Jones for the crime of obstructing official business therefore rests on disputed facts. Unaffiliated bystander witnesses Dominique Camel and Ruth Kennedy undercut the O‘‘“c—r D—‘—n–ants back’roun– ‘act v—rs“on. Cam—l an– K—nn—–y stat— that Jon—s –“– not physically threaten, harm, or otherwise actively resist Officer Defendants. Camel saw the incident while standing in the parking lot talking with a friend: I saw Mr. Jones walking across the parking lot. He was cooperating with the police officers. I saw the officers take Mr. Jones to the ground. At no time did Cody Jones physically resist the officers. I heard Cody Jones screaming for the officers to stop, but the officers fighting him.39 Witness Kennedy saw most of the incident, and testified twice at Jon—s criminal prosecution. Kennedy s t—st“mony “s “ncons“st—nt w“th th— Defendants claim that Jones attempted to flee, resist, or act violently towards Officer Defendants, as Officer Defendants represented in their police reports: Q. Okay. What did you see? A. I saw [Officer Weber] pat [Cody Jones] down. And as he went to his back pocket, I saw Cody sort of flinch and kind of twist to as if he was about to speak to the officer or something along those sorts. … Q. Okay. And so he's patting him down. Cody flinches to go talk to him. What happens next? A. Then he gets tackled to the ground. … that a detention becomes an arrest that must be supported by probable cause wh—n [w]hen police actions go beyond checking out the suspicious circumstances that led to the original stop (c“tat“on om“tt—–)). 38 See Doc. 39-7 at ¶ 4; Doc. 35 at 342:23 349:6. 39 Doc. 39-7 at ¶ 4. -8- Case No. 1:18-cv-929 Gwin, J. Q. Did Cody Jones ever swing a punch at any of the officers? A. No. ... Q. Did you ever see Cody Jones attempt to grab one of the officers around the waist? A. No. Q. Did you ever see him attempt to take one of the officers' firearm? A. No, I did not. Q. And you were looking pretty much the entire time? A. Correct.40 D—‘—n–ants oth—r ar’um—nts also do not succeed. The April 29, 2016 grand jury indictment of Jones did not establish probable cause for Jon—s April 23, 2018 seizure because, among other reasons, that indictment post-dated the arrest. Per Bradley v. Reno,41 th— Oh“o stat— court s decision –—ny“n’ Jon—s suppression motion and finding that Officer Defendants had probable cause to arrest Jones is not entitled to issue preclusive effect. Jon—s thus prov“–—s su‘‘“c“—nt —v“–—nc— that O‘‘“c—r D—‘—n–ants arr—st—– h“m w“thout probable cause, violating his Fourth Amendment rights. The constitutional right to freedom from arrest in the absence of probable cause is clearly established.42 Viewing all factual inferences in Jon—s favor, a reasonable officer would have known that arresting Jones without probable cause violated his Fourth Amendment rights. Th— ult“mat— l—’al qu—st“on o‘ O‘‘“c—r D—‘—n–ants —nt“tl—m—nt to immunity will turn on which view of the facts the jury accepts. The Court DENIES D—‘—n–ants summary judgment motion on the false arrest §1983 claim against Officer Defendants. 40 See Doc. 35 at 342:23 349:6. Bradley v. Reno, 749 F.3d 553, 556 59 (6th Cir. 2014). 42 Courtright v. City of Battle Creek, 839 F.3d 513, 520 (6th Cir. 2016). 41 -9- Case No. 1:18-cv-929 Gwin, J. E. State Law False Arrest An Ohio law false arrest claim requires (1) th— “nt—nt“onal –—t—nt“on o‘ th— p—rson an– (2) th— unlaw‘uln—ss o‘ th— –—t—nt“on. 43 For the same reasons just described, Jones shows a factual dispute as to whether Officer Defendants had probable cause to believe Jones was engaged in criminal wrongdoing when they arrested him. A reasonable juror also could conclude that Officer Defendants manifested, at the very least, a wanton or reckless abuse of official state power by seizing Jones without lawful authority,44 especially because they eventually involuntarily committed him. Officer D—‘—n–ants —nt“tl—m—nt to “mmun“ty th—r—‘or— –—p—n–s on th— ”ury s ‘“n–“n’s on probabl— cause. The Court DENIES D—‘—n–ants mot“on ‘or summary judgment on the state false arrest claims against Officer Defendants. F. Fourth Amendment Excessive Force Us“n’ —xc—ss“v— ‘orc— when seizing a person violates the Fourth Amendment.45 Three factors help determine the reasonableness of the use of force: (1) the severity of the crime at issue; (2) whether the suspect posed an immediate threat to the safety of the police officers or others; and (3) whether the suspect actively resisted arrest or attempted to evade arrest by flight.46 Jones presents sufficient evidence showing that O‘‘“c—r D—‘—n–ants use of force was unreasonable. Officer Defendants tackled Jones, put his face to the pavement and 43 Radvansky v. City of Olmsted Falls, 395 F.3d 291, 315 (6th Cir. 2005) (citation omitted). See, e.g., Walsh v. Erie Cty. Dep't of Job & Family Servs. , 240 F. Supp. 2d 731, 764 65 (N.D. Ohio 2003). 45 Graham v. Connor, 490 U.S. 386, 394 95 (1989). 46 Id. at 396. 44 -10- Case No. 1:18-cv-929 Gwin, J. physically pinned him to the ground, punched him in the face, and then repeatedly tased him without any warning. Yet, as explained, if disinterested witnesses Kennedy and Camel are believed, Officer Defendants lacked probable cause to arrest Jones for any offense. Jones also was unarmed and did not pose a threat to Officer Defendants. Two witnesses say that Jones was cooperating, and did not fight or resist them. Ruth Kennedy specifically denies that Jones attempted to strike the officers, grab one of their firearms, or grab one of them around the waist.47 D—‘—n–ants ar’um—nt that O‘‘“c—r D—‘—n–ants could constitutionally tase and physically strike Jones because Jones actively resisted arrest and tried to flee fails because it rests on disputed facts.48 The Sixth Circuit has clearly established that use of force against non-resisting, surrendering, or neutralized arrestees is excessive as a matter of law.49 Viewing all factual inferences in Jon—s favor, a reasonable officer would have known that using force against the non-resisting Jones, without reasonably believing that Jones was engaged in criminal wrongdoing, violated Jon—s constitutional rights. The legal question of immunity, however, w“ll –—p—n– on th— ”ury s ‘“n–“n’s on s—v—ral mat—r“al factual issues.50 The Court DENIES D—‘—n–ants summary judgment motion on this claim against Officer Defendants. The non-participatory liability theory for excessive force does not apply to Officer 47 Doc. 35 at 342:23 349:6. See Rudlaff v. Gillispie, 791 F.3d 638, 641 42 (6th Cir. 2015) (holding that it is not excessive force for the police to tase or knee-strike a suspect to subdue him when the suspect is actively resisting arrest). 49 See Bennett v. Krakowski, 671 F.3d 553, 562 63 (6th Cir. 2011); Kijowski v. City of Niles, 372 F. App'x 595, 601 (6th Cir. 2010); Ortiz ex rel. Ortiz v. Kazimer, 811 F.3d 848, 851 53 (6th Cir. 2016); Baker v. City of Hamilton, Ohio, 471 F.3d 601, 606 09 (6th Cir. 2006). 50 See Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994). 48 -11- Case No. 1:18-cv-929 Gwin, J. M“tch—ll s “nvolv—m—nt b—caus— sh— –“r—ctly part“c“pat—– “n using force against Jones.51 G. Assault and Battery Oh“o s one-year statute of limitations bars Jon—s assault and battery claims.52 The incident occurred on April 23, 2016, and Jones did not file his first complaint until April 26, 2017.53 The Court GRANTS summary judgment for Defendants on these claims. H. Fourth Amendment Malicious Prosecution To prevail on a Fourth Amendment malicious prosecution claim, a plaintiff must prove: (1) the defendant made, influenced, or participated in the decision to prosecute the plaintiff; (2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal proceedings, the plaintiff suffered a deprivation of liberty apart from the initial arrest; and (4) the criminal proceeding was resolved in the pla“nt“‘‘ s ‘avor. 54 Jones claims that Officer Defendants maliciously charged him with resisting arrest, obstructing official business, and assaulting a peace officer. He argues that the sole basis for th— ’ran– ”ury “n–“ctm—nt ar— O‘‘“c—r D—‘—n–ants false police reports. The deprivation-of-liberty and plaintiff-favorable-proceeding-outcome elements are See, e.g., Doc. 39-5 at 7 (Officer Mitchell jumped in to assist Officer Weber, and pinned Jon—s lower half to the ground). This liability theory is used to hold officials accountable when they are present to misconduct and do not act to prevent it in other words, when an official would not otherwise be liable for excessive force because they did not directly participate in using it against the plaintiff. See Turner v. Scott, 119 F.3d 425, 429 (6th Cir.1997) ( [A] police officer who fails to act to prevent the use of excessive force may be held liable when (1) the officer observed or had reason to know that the excessive force would be or was being used, and (2) the officer had both the opportunity and the m—ans to pr—v—nt th— harm ‘rom occurr“n’. ). Cf. Bruner v. Dunaway, 684 F.2d 422, 427 (6th Cir. 1982) (finding that a reasonable jury could find that the officers were personally involved in, and thus could be directly liable for, using —xc—ss“v— ‘orc— a’a“nst th— pla“nt“‘‘ wh—n th— o‘‘“c—rs r—stra“n—– th— pla“nt“‘‘ s bo–y wh“l— anoth—r o‘‘“c—r –—alt th— injurious physical blows). 52 Ohio Rev. Code § 2305.111(B). 53 The original action was filed in state court, and Defendants removed the action to federal court. See Doc. 1 (Case No. 1:17-CV-01104). Th— Court ’rant—– Jon—s motion for voluntary dismissal without prejudice on August 18, 2017, see Doc. 21, and Jones subsequently refiled the suit on April 23, 2018. 54 Webb v. United States, 789 F.3d 647, 659 (6th Cir. 2015). 51 -12- Case No. 1:18-cv-929 Gwin, J. not factually disputed.55 However, Defendants argue that Jones cannot show a lack of probable cause for the criminal prosecution because a grand jury indicted him of the charges.56 However, a plaintiff can overcome the probable cause presumption created by a grand jury indictment by showing that: (1) a law-enforcement officer, in the course of setting a prosecution in motion, either knowingly or recklessly makes false statements (such as in affidavits or investigative reports) or falsifies or fabricates evidence; (2) the false statements and evidence, together with any concomitant misleading omissions, are material to the ultimate prosecution of the plaintiff; and (3) the false statements, evidence, and omissions do not consist solely of grand-jury testimony or pr—parat“on ‘or that t—st“mony….57 A plaintiff may use ev“–—nc— o‘ an o‘‘“c—r s act“ons pr“or to an– “n–—p—n–—nt o‘ ’ran–-jury testimony to make this showing.58 If the April 23, 2016 events occurred as bystander witnesses Dominique Camel and Ruth Kennedy say, there was not probable cause for the charges. Camel and Kennedy state that Jones did not physically threaten, harm, or otherwise actively resist Officer Defendants. The hospital mental center records show that Defendant Officers made indisputably false statements to hospital staff about Jones and the April 23, 2016 encounter. Officer D—‘—n–ants false statements to the medical staff coul– support a ”ury s –—t—rm“nat“on that the police reports were falsified. Th— comm“tt“n’ –octor s —valuat“on not—– that Elyr“a Pol“c— D—partm—nt ha– stat—[–] that [Jon—s] was ‘oun– s—arch“n’ ‘or ‘oo– “n –umpst—rs. 55 59 In th— stat—m—nt o‘ Jones was arrested and imprisoned. Doc. 39-5 at 5. A jury then found Jones not guilty of the charges. Doc. 39-9. 56 Bickerstaff v. Lucarelli, 830 F.3d 388, 398 (6th Cir. 2016) (citation omitted). King v. Harwood, 852 F.3d 568, 587 88 (6th Cir. 2017), cert. denied, 138 S. Ct. 640 (2018). 58 Id. at 590. 57 59 Doc. 39-10 at 1. -13- Case No. 1:18-cv-929 Gwin, J. b—l“—‘ used to justify Jon—s involuntarily commitment, O‘‘“c—r W—b—r wrot—, Upon sp—ak“n’ to o‘‘“c—rs, Co–y app—ar—– –“sor“—nt—– an– was halluc“nat“n’. 60 Officer Defendants now testify they neither observed Jones hallucinating nor heard him speak at all during the encounter.61 V“—w“n’ th— —v“–—nc— “n th— l“’ht most ‘avorabl— to Jon—s, O‘‘“c—r D—‘—n–ants police report narratives contained false statements and misleading omissions that were material to Jon—s ultimate prosecution. All three Jon—s char’—s have a harm component. To create probable cause for all three, Officer Defendants had to show that Jones knowingly caused or attempted to cause physical harm to an officer and that he recklessly or by force resisted or interfered with a lawful arrest and in doing so caused harm to an officer.62 If the witness statements are true, Officer Defendants falsified the police reports to represent exactly that. 63 Officer Defendants police report narratives convey that Jones fought Officer Defendants and otherwise acted violently.64 Witnesses Camel and Kennedy directly contradict this. Further, contrary to their r—pr—s—ntat“on that Jon—s cont“nu—– to ‘“’ht a‘t—r Officer Weber warned Jones that he would be tased,65 Officer Weber has since admitted that he did not warn Jones before tasing him.66 In addition, one Officer Defendant police r—port –—scr“b—s O‘‘“c—r Chalkl—y s han– 60 61 Doc. 39-10 at 2. Doc. 37 at 63:19 23, 65:1 15; Doc. 38 at 17:15 21, 19:15 22; Doc. 40-1 at 29:19 24; Doc. 39-4 at 31:17 21. 62 Doc. 33-5. See also Ohio Rev. Code § 2903.13(A), (C)(5) (Assault on a Peace Officer F4); Ohio Rev. Code §2921.31 (Obstructing Official Business F5); Ohio Rev. Code § 2921.33 (Resisting Arrest M1). 63 Doc. 39-5 at 7. 64 See Doc. 39-5. 65 Doc. 39-5 at 7. 66 Doc. 37 at 45:9 13. -14- Case No. 1:18-cv-929 Gwin, J. injury in a manner suggesting that Jones directly injured Chalkl—y s hand.67 In fact, Officer Chalkley injured his hand when he punched Jones in the face.68 According to the grand jury proceeding transcript, the only evidence presented to the grand jury was testimony reading one of the Officer De‘—n–ants police report narratives.69 The testimony is nearly word for word.70 Jones also presents evidence that Officer Defendants knew their police reports would be used, or would likely be used, as the sole evidence for an indictment. Under Elyria Police Department procedure, limited police give testimony to grand jurors and give that testimony by simply r—a–“n’ o‘‘“c—rs pol“c— r—port narrat“v—s.71 They usually did not communicate with the officer who authored a police report before presenting the r—port s narrative to the grand jury.72 Viewing the evidence in Jon—s favor, Jones rebuts the probable cause presumption created by the grand jury indictment. Sufficient evidence shows that Officer Defendants made, influenced, or participated in the decision to prosecute Jones.73 Accordingly, Jones has sustained his burden for the fourth, and last, element as well. Individuals have a clearly established Fourth Amendment right to be free from malicious prosecution by defendants who make, influence, or participate in the decision to 67 Doc. 39-5 at 7 ( S’t. Groom—s r—sponded to the hospital and took photographs of Jones injuries as well as the injuries Officer Chalkley sustained to h“s han– –ur“n’ th— ‘“’ht. ). See also Doc. 39-6 at 4 5 ( An–, appar—ntly, O‘‘icer Chalkl—y susta“n—– “n”ur“—s to h“s han– –ur“n’ th— ‘“’ht. ). 68 See Doc. 39-5 at 1 ( Ptlm. Chalkl—y r—act—– by str“k“n’ Jon—s, w“th a clos—– ‘“st, “n th— h—a–. As a r—sult, Ptlm. Chalkley in”ur—– h“s r“’ht han–. ). 69 Doc. 39-6 at 2 3. 70 Compare Doc. 39-5 at 7, with Doc. 39-6. 71 Doc. 39-4 at 5 6. 72 Doc. 39-4 at 6. 73 See Sykes v. Anderson, 625 F.3d 294, 311 12 n.9 (6th Cir. 2010) ( Wh—th—r an o‘‘“c—r “n‘lu—nc—– or participated in the decision to prosecute hinges on the degree of the officer's involvement and the nature of the officer's act“ons. ). -15- Case No. 1:18-cv-929 Gwin, J. prosecute by knowingly or recklessly making false statements that are material to the prosecution.74 Reasonable officers “n O‘‘“c—r D—‘—n–ants pos“t“ons would have known that they were violating Jon—s rights by influencing or participating in the decision to prosecute Jones by knowingly or recklessly falsifying their police reports. Jones presents sufficient evidence to defeat D—‘—n–ants assertion of qualified immunity. Genuine factual issues remain, and these are for the jury to decide. The Court DENIES D—‘—n–ants mot“on ‘or summary ”u–’m—nt on th— mal“c“ous pros—cut“on §1983 claim against Officer Defendants. I. State Law Malicious Prosecution An Ohio law malicious prosecution claim requires (1) mal“c— “n “nst“tut“n’ or continuing the prosecution, (2) lack of probable cause, and (3) termination of the pros—cut“on “n ‘avor o‘ th— accus—–. 75 Malice may be inferred from a lack of probable cause.76 A plaintiff can overcome the probable cause presumption by showing that the grand jury indictment resulted from perjured testimony or otherwise significantly irregular grand jury proceedings.77 Because this state claim essentially requires the same showing as the federal claim, Jones presents evidence showing that there is a genuine issue for trial. The same is true as to whether Defendants are entitled to state statutory immunity, given that a reasonable juror could find that Officer Defendants falsified the police reports with malice or in bad faith to criminally prosecute Jones. The Court DENIES D—‘—n–ants summary judgment 74 King, 852 F.3d at 582 83. Criss v. Springfield Twp., 564 N.E.2d 440, 443 (Ohio1990). 76 Rogers v. Barbera, 164 N.E.2d 162, 166 (Ohio 1960) (citation omitted). 77 Bickerstaff v. Lucarelli, 830 F.3d 388, 397 (6th Cir. 2016) (citation omitted). 75 -16- Case No. 1:18-cv-929 Gwin, J. motion on the state law malicious prosecution claims against Officer Defendants. J. State Law Intentional Infliction of Emotional Distress To prove an Ohio law intentional infliction of emotional distress claim, a plaintiff must show that (1) –—‘—n–ant “nt—n–—– to caus— —mot“onal –“str—ss, or kn—w or shoul– have known that actions taken would result in serious emotional distress; (2) defendant's conduct was extreme and outrageous; (3) defendant's action proximately caused plaintiff's psychic injury; and (4) the mental anguish plaintiff suffered was serious. 78 Jones has not demonstrated a genuine issue as to whether Jones suffered serious emotional distress. Although expert medical testimony is not required, plaintiffs are required to present som— ’uarant—— o‘ ’—nu“n—n—ss, like lay witness testimony, to prevent summary judgment in favor of the defendants.79 Jones has not done so. The Court GRANTS summary judgment for Officer Defendants on these claims. K. Section 1983 Supervisory Liability For a supervisory liability § 1983 claim based on failure to train or supervise, a plaintiff at a minimum must show that the supervisor at l—ast “mpl“c“tly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending o‘‘“c—rs. 80 Plaintiff Jones offers insufficient evidence from which a jury could conclude that Chief Whitely took affirmative action to authorize, approve, or knowingly acquiesce in any unconstitutional conduct by Officer Defendants.81 The Court GRANTS summary judgment for Chief Whitely on the supervisory liability § 1983 claim. 78 Mitnaul v. Fairmount Presbyterian Church, 778 N.E.2d 1093, 1102 (Ohio 2002) (citation omitted). Ford Motor Credit Co. v. Ryan, 939 N.E.2d 891, 914 (Ohio 2010) (quotation marked omitted). 80 Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (citation omitted). 79 81 Jones appears to dedicate an entire section of the opposition to argu“n’ that S—r’—ant R“char– Buckway s supervisory liability. See Doc. 39 at 17 18. Sgt. Buckway, however, is not a party to the litigation. -17- Case No. 1:18-cv-929 Gwin, J. L. Monell Claims To impose § 1983 liability on a municipality, a plaintiff must prove that an official custom or policy of the municipality caused his constitutional deprivation.82 As for the official policy and failure-to-train claims, Defendants have sustained their burden by showing the absence of a material factual issue entitling it to judgment. Now for the ratification claim. Jones says that Elyria is liable for conducting an inadequate investigation into the April 23, 2016 incident because Chief Whitely, the final municipal policymaker, reviewed and approved Officer Defendants con–uct, despite a department policy requiring that witness information be gathered. Som—t“m—s, an “solat—– —x—rc“s— o‘ ’ov—rnm—nt author“ty that v“olat—s a p—rson s constitutional rights is sufficient to give rise to liability, as when a final municipal policymak—r rat“‘“—s a subor–“nat— s unconst“tut“onal con–uct by r—v“—w“n’ an– approv“n’ th— subor–“nat— s –—c“s“on an– th— bas“s ‘or “t.83 Unlike many ratification claims, however, an inadequate investigation claim requires evidence showing a pattern of violations by the final decision-making official.84 This is because Monell liability requires that the action be taken pursuant to an official policy that caused the injury.85 Jones has not shown a genuine issue as to whether Chief Whitely has previously approved investigation reports without requiring witness information or follow-up to gather it. Without this evidence, the allegedly inadequate investigations cannot have caused 82 See, e.g., Smith v. City of Troy, Ohio, 874 F.3d 938, 946 (6th Cir. 2017). Paterek v. Village of Armada, Michigan, 801 F.3d 630, 651 (6th Cir. 2015); Meyers v. City of Cincinnati, 14 F.3d 1115, 1118 (6th Cir. 1994) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). 84 See David v. City of Bellevue, Ohio, 706 F. App'x 847, 853 (6th Cir. 2017) (giving the four elements). 85 Id. 83 -18- Case No. 1:18-cv-929 Gwin, J. Jon—s claimed Fourth Amendment rights violations. The Court GRANTS summary judgment for Elyria and Chief Whitely on the Monell claims. IV. Conclusion For the reasons stated, the Court GRANTS IN PART and DENIES IN PART D—‘—n–ants mot“on ‘or summary ”u–’m—nt. Further, the Court GRANTS D—‘—n–ants motion to strike Jon—s expert report supplemental exhibit supporting his opposition, but without prejudice to the expert report s us— at trial, and DENIES D—‘—n–ants mot“on to strike the Camel Declaration. IT IS SO ORDERED. Dated: November 8, 2018 s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE -19-
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