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Shaw v. Pfeiffer

September 7, 2006


The opinion of the court was delivered by: Judge Smith

Magistrate Judge Kemp


Defendants City Attorney Richard C. Pfeiffer, Jr. and Director of Public Safety Mitchell J. Brown, sued in their official capacities only, move for summary judgment as to the entirety of Plaintiff's claims (Doc. 19). Plaintiff has filed a cross motion to file an amended complaint instanter (Doc. 24) and a motion for reconsideration of the August 8, 2006 Order Denying Leave to Amend Complaint (Doc. 28). For the reasons that follow, the Court GRANTS Defendants' Summary Judgment Motion (Doc. 19). The Court DENIES Plaintiff's Cross Motion to File Amended Complaint Instanter (Doc. 24). The Court DENIES in part Motion for Reconsideration of the August 8, 2006 Order Denying Leave to Amend Complaint (Doc. 28) insofar as it seeks to assert 42 U.S.C. § 1983 claims against Defendants in their personal capacities and orders further briefing on the Title VII claim.


Plaintiff, Mark C. Shaw, is a resident of Franklin County, Ohio and a former employee of the City of Columbus, Ohio Division of Police, having formerly been employed as a Criminalist II with responsibility, inter alia, for the conducting of various laboratory analyses including the testing of blood and urine samples for the presence of alcohol and controlled substances.

Defendant Richard C. Pfeiffer, Jr. is the current City Attorney for the City of Columbus. Defendant Mitchell J. Brown is the current Director of the Department of Public Safety for the City of Columbus. Both are sued in their official capacities only.

On April 30, 2001, the Division of Police conducted an administrative hearing in which Plaintiff admitted that he failed to open mail addressed to him that had a direct bearing on the certification of the Crime Lab and also that he failed to inform his supervisor in a timely manner of a phone call from the Ohio Department of Health. Plaintiff alleges he was compelled by Defendants to give testimony at this hearing that was later utilized in his criminal prosecution in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

On May 9, 2002, the State filed criminal complaints against Plaintiff, each complaint containing a single count charging Plaintiff with a misdemeanor of dereliction of duty in contravention of R.C. § 2921.44(E). More specifically, the complaints alleged:

Defendant, a public servant, to wit, a public servant employed by the City of Columbus Division of Police Crime Laboratory as a Criminalist II did recklessly fail to perform a duty expressly imposed by law with respect to the public servant's office, to wit: while holding a laboratory technician's/director's permit as described in OAC 3701-53-07(A) did fail to conduct evidential tests of biological fluids for alcohol levels in accordance with the laboratory's written procedure manual in violation of OAC 3701-53-06(C), to wit: reported alcohol level results for blood or urine samples where one or more quality control samples used in testing had a test result more than 5% outside the known for the quality control sample.

Plaintiff's Complaint, Exhibit A. On July 11, 2002, Plaintiff filed a motion to dismiss the criminal charges, arguing that the complaints failed to allege the commission of a crime because the sections of the Ohio Administrative Code cited in the complaints constitute rules or guidelines to run a laboratory, and not duties expressly imposed by law. See State v. Shaw, 2003 WL 1962440 (Ohio App. 10 Dist., Apr. 29, 2003). By entry August 26, 2002, the trial court granted defendants motion to dismiss. Id. On appeal, the Franklin County Court of Appeals reversed the lower court, holding that the indictments averred the essential elements of the charged offense. Id. The case proceeded to a bench trial. On September 22, 2003, the trial court dismissed the charges. Plaintiff's Complaint, Exhibit D.

On February 24, 2005, Plaintiff filed the instant suit in which he alleges that Defendants, in their official capacities, violated his rights under the Fourth, Fifth, and Fourteenth Amendments of the Constitution. He brings his federal claims under 42 U.S.C. § 1983. Plaintiff also asserts a state law cause of action for negligent infliction of emotional distress and seeks punitive damages.


The standard governing summary judgment is set forth in Fed. R. Civ. P. 56(c), which provides:

The judgment sought shall be rendered forthwith 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 judgment as a matter of law.

Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate, however, if the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).

When reviewing a summary judgment motion, the Court must draw all reasonable inferences in favor of the nonmoving party, and must refrain from making credibility determinations or weighing the evidence. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).*fn1 The Court disregards all evidence favorable to the moving party that the jury would not be not required to believe. Id. Stated otherwise, the Court must credit evidence favoring the nonmoving party as well as evidence favorable to the moving party that is uncontroverted or unimpeached, if it comes from disinterested witnesses. Id.

The Sixth Circuit Court of Appeals has recognized that Liberty Lobby, Celotex, and Matsushita have effected "a decided change in summary judgment practice," ushering in a "new era" in summary judgments. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1989). The court in Street identified a number of important principles applicable in new era summary judgment practice. For example, complex cases and cases involving state of mind issues are not necessarily inappropriate for summary judgment. Id. at 1479.

Additionally, in responding to a summary judgment motion, the nonmoving party "cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must 'present affirmative evidence in order to defeat a properly supported motion for summary judgment.'" Id. (quoting Liberty Lobby, 477 U.S. at 257). The nonmoving party must adduce more than a scintilla of evidence to overcome the summary judgment motion. Id. It is not sufficient for the nonmoving party to merely "'show that there is some metaphysical doubt as to the material facts.'" Id. (quoting Matsushita, 475 U.S. at 586).

Moreover, "[t]he trial court no longer has a duty to search the entire record to establish that it is bereft of a genuine issue of material fact." Id. at 1479-80. That is, the nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact. In re Morris, 260 F.3d 654, 665 (6th Cir. 2001).


A. Preliminary ...

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