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Kathy Wray Coleman v. Cuyahoga County Board of

March 9, 2011

KATHY WRAY COLEMAN,
PLAINTIFF,
v.
CUYAHOGA COUNTY BOARD OF
COMMISSIONERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Patricia A. Gaughan

MEMORANDUM OF OPINION AND ORDER

Pro se Plaintiff Kathy Wray Coleman filed this action under 42 U.S.C. § 1983 against the former Cuyahoga County Board of Commissioners, former Cuyahoga County Sheriff Gerald McFaul, Cuyahoga County Warden Kevin McDonough, Midwest Medical Staffing, Inc., Physician Emmanuel O. Tuffour, Cuyahoga County Jail Director Kenneth Kochevar, Cuyahoga County Jail Health Care Manager Christine Dubber, Cuyahoga County Jail Booking Sergeant Kevin O'Donnell, Cuyahoga County Jail Nurse Patricia Ruzicka, Lyndhurst Municipal Court Judge Mary Kaye Bozza, Lyndhurst Municipal Court Visiting Judge Gustalo Nunez, Lyndhurst Municipal Court Clerk of Court Tina Furcsik, the City of Lyndhurst, Ohio, the City of Mayfield Heights, Ohio, Mayfield Heights Police Chief Joseph M. Donnelly, Mayfield Heights Patrolman T. Parker, Mayfield Heights Patrolman James Dvorak, Mayfield Heights Police Department Secretary Jill Turner, Mayfield Heights Assistant City Prosecutor Dominic J. Vitantonio, Mayfield Heights City Prosecutor George Argie, Jr., Circuit City Department Store, Recovery Resources, Recovery Resources Social Worker Corey Miller, the Cleveland Clinic, Attorney Matthew Fitzsimmons, and the Law Firm of Nicola, Gudbranson, & Cooper. In the Complaint, Plaintiff alleges she has been the subject of numerous arrests and prosecutions. She seeks monetary damages.

Plaintiff also filed an Application to Proceed In Forma Pauperis. That Application is granted.

Background

Ms. Coleman alleges she has been prosecuted multiple times to silence her writings in the Call and Post. She first claims she was charged with telephone harassment by the City of Beachwood, Ohio in February 2005. The charges stemmed from telephone calls she made to a Beachwood woman who had asked Ms. Coleman to stop calling her. The case was heard in the Shaker Heights Municipal Court which serves the City of Beachwood as well as other municipalities. Ms. Coleman claims the charges were pursued at the urging the of Beachwood Law Director, Margaret Cannon. She was acquitted of the charges in October 2005 and filed an action in the Cuyahoga County Court of Common Pleas against the City of Beachwood, the City of Shaker Heights, and Ms. Cannon in October 2006 asserting claims for malicious prosecution and abuse of process. That action was voluntarily dismissed, refiled, and eventually resolved in favor of the Defendants.

On August 27, 2007, misdemeanor charges of theft were brought against Ms. Coleman in the Lyndhurst Municipal Court. Ms. Coleman explains that Circuit City offered a sales promotion in which customers who purchased a lap top computer received a free wireless router. She contends the free item actually provided by Circuit City was an ethernet converter. She claims that she returned the ethernet converter and attempted to exchange it. Circuit City reported the action to the police, and criminal charges were brought against Ms. Coleman for theft. She contends these charges were brought against her because Mayfield Heights Prosecutor Dominic Vitantonio was represented by Ms. Cannon's law firm on an unrelated matter, and because the Lyndhurst prosecutor represented Ms. Cannon and Shaker Heights on another case. Furthermore, she claims Judge Bozza's husband is a police officer for the City of Mayfield Heights.

Ms. Coleman's first arraignment on the theft charges was held on August 28, 2007 in the Lyndhurst Municipal Court, which serves the City of Mayfield Heights. She refused to enter a plea so a plea of "not guilty" was entered for her. Because she was in court after being served with a criminal citation, the Judge ordered that she be arrested and fingerprinted. At that point, Ms. Coleman reported she was having chest pains. Paramedics were called and she was taken to the Cleveland Clinic's South Pointe Hospital. She states her blood pressure was elevated. At the hospital, Ms. Coleman's mental health was also evaluated by Social Worker Corey Miller from Recovery Services.*fn1 A report was filed later with the Lyndhurst Municipal Court suggesting she had mental illness concerns.

Ms. Coleman had a second arraignment on September 4, 2007. She provides no details of this appearance, but mentions that disorderly conduct charges were either filed or threatened. After that hearing, Judge Bozza sent a letter to the Ohio Supreme Court voluntarily disqualifying herself from the case, and asking the Court to appoint a visiting judge. Judge Nunez accepted the appointment to the case.

A series of contentious pre-trial hearings were held by Judge Nunez from November 2007 to September 2008. Ms. Coleman refused to appear for that first hearing and was told she would be held in contempt if she did not attend. Her attorney appeared in court and was permitted to withdraw from her case. Ms. Coleman did not attend the hearing and a capias was issued. She was ordered to appear at the next pre-trial scheduled for April 28, 2008. She did attend that hearing, and a verbal altercation took place between Ms. Coleman and Judge Nunez. She claims he wanted to evaluate her mental health. A third pre-trial was scheduled for June 20, 2008. She was told she would have to attend with or without counsel, or she would be held in contempt of court. She does not state if she appeared for the hearing, but claims that Judge Nunez issued a capias and ordered her to be jailed for twenty days. He also ordered a mental health evaluation for Ms. Coleman. She was arrested on the capias on August 7, 2008, at the Justice Center in Cleveland, Ohio where she was attending a hearing scheduled in her civil case against the City of Beachwood. During the course of this arrest, she claimed she was ill. She was transported to the Metro Health Medical Center where she was diagnosed with high blood pressure. Thereafter, she was taken to the Cuyahoga County Jail.

Ms. Coleman contends she was subjected to adverse conditions in the jail. It is difficult to ascertain from the pleading whether Ms. Coleman is referring to her incarceration on August 7, 2008, or some other arrest. She states that upon her arrival, she was given a shot by the nurse. She claims she was kept naked in an observation cell for a period of time while the medication took effect. She contends she was monitored by a male supervisor. Some time later, she was released to the general population where she remained for three days. On the fourth day, she was transported to the Mayfield Heights jail. She states that she was told she would be released after a psychiatric examination was completed. She claims that although the psychiatrist recommended her involuntary commitment, she was released from jail. Her final pretrial hearing was held on September 30, 2008. She indicates the charges against her were dismissed without prejudice on February 13, 2009.

Ms. Coleman asserts seven counts for relief. Count I contains claims under 42 U.S.C. §1983 for violation of her First Amendment rights to Privacy and Freedom of Speech, her Eighth Amendment right to be free from cruel and unusual punishment, and her Fourteenth Amendment right to Equal Protection. Count II sets forth a state law claim for abuse of process. Count III is premised on the state law tort of false imprisonment. Count IV contains a claim for malicious prosecution. Count V asserts a state law tort claim of intentional infliction of emotional distress. Count VI contains claims for medical malpractice and negligence and Count VII asserts a violation of Ohio Revised Code § 2317.02.

Analysis

Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact.*fn2 Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of ...


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