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Humes v. City of Blue Ash

United States District Court, Sixth Circuit

May 28, 2013

JEVON T. HUMES, et al., Plaintiffs,
v.
THE CITY OF BLUE ASH, et al., Defendants.

ORDER GRANTING BLUE ASH DEFENDANTS' MOTION TO DISMISS AND ORDER TO SHOW CAUSE

SUSAN J. DLOTT, Chief District Judge.

In this civil rights action, [1] Plaintiffs Jevon Humes, Ayisha Humes, and their two minor children claim that the City of Blue Ash, its police officers and detectives, and unnamed members of Hamilton County's SWAT team[2] violated their Fourth and Fourteenth Amendment rights and are liable to them under state law for assault and battery, negligent and intentional infliction of emotional distress, and false arrest/false prosecution/abuse of process. Plaintiffs' claims arise out of the execution of a search warrant at their residence on December 15, 2011. Before the Court is the motion to dismiss filed by the Blue Ash Defendants, Doc. 5.[3] For the reasons that follow, the Court GRANTS the motion.

I. BACKGROUND

The Complaint alleges the following facts.[4] Blue Ash police officers claimed[5] to have received confidential tips from several sources that Jevon and Ayisha Humes were engaged in drug trafficking and drug abuse at their residence in Blue Ash, Ohio. Based on these tips, Blue Ash Police Officer Jeff Lewis took trash from the Plaintiffs' Blue Ash premises. Blue Ash Detectives Robert Gerhardt and James Kelly searched the trash and allegedly found marijuana, seeds, stems, residue, and plastic baggies. Relying on this information, Detective Gerhardt applied for a warrant to search the Humes' residence. A Hamilton County Municipal Court Judge signed the warrant on December 14, 2011. The warrant permitted officers to search for marijuana; items used to manufacture, store, or use marijuana; and records pertaining to marijuana sales.

The following day, on December 15, 2011, [6] members of the Hamilton County SWAT team demanded entrance into the Humes' residence pursuant to the search warrant. The Complaint alleges that the SWAT team members burst into the residence, pointed guns at Jevon and Ayisha Humes, and put a gun to the head of Plaintiffs' two-year-old minor child, J.H. The SWAT team members harassed and terrorized Plaintiffs' pet dogs causing them to defecate on the floor of the residence.

After the residence was secured by the SWAT team, Blue Ash Police Chief Chris Wallace and Officers Dennis Boone, Robert Lily, James Schaeffer, and Chris Zielinski entered the residence and conducted a search. During the search, the officers found a marijuana cigarette and a small amount of marijuana in a baggie. Officers also found and removed a toy pistol and a prescription bottle containing pills that Jevon Humes' doctor had prescribed to him.

Detective Gerhardt asked Hamilton County Job and Family Services to inspect the Humes residence. Gerhardt believed that the residence was unclean and unsafe for the children, in part because it smelled of urine and feces and there was feces on the floor. Plaintiffs contend that feces was on the floor because the SWAT team caused their dogs to defecate during the search and then the team members spread the feces around the house on the bottoms of their shoes.

Jevon Humes was charged with felony possession of oxycodone. Ayisha Humes was charged with two misdemeanor counts of endangering children. Both Jevon and Ayisha have been acquitted of these charges. The Humes' minor children were taken from them and Job and Family Services opened an investigation, which is pending.

II. ANALYSIS

Plaintiffs' Complaint asserts four counts. The first count, "Civil Rights Violations, " states that the search warrant was illegal because there was no reliable confidential informant and, thus, there was no probable cause to support the warrant. Plaintiffs assert that the Blue Ash Police Officers' search of their residence and seizure of items from the residence therefore violated their rights under the Fourth and Fourteenth Amendments. Plaintiffs also assert that the Hamilton County SWAT team members violated their rights to be free from excessive force in violation of the Fourth and Fourteenth Amendments when they pointed guns at them and at their two-year-old son. In count two, Plaintiffs claim that the SWAT team members are liable for assault and battery. In count three, Plaintiffs claim that the actions of Blue Ash Detectives Gerhardt, Kelly, and Boone constituted the intentional and/or negligent infliction of severe emotional distress. In Count four, Plaintiffs claim that the actions of Blue Ash Detectives Gerhardt, Kelly, and Boone constituted false arrest, false prosecution, and abuse of process.

The Blue Ash Defendants filed their motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). They claim that Plaintiffs have failed to allege facts that state any plausible claims, that the City of Blue Ash has no respondeat superior liability, that the City and its officers are entitled to sovereign immunity as to Plaintiffs' state law claims, that the state law claims for assault and battery and false arrest are time barred, and that the abuse of process claim is barred as a matter of law.

In their response in opposition to Defendants' motion, Plaintiffs concede the validity of certain of Defendants' arguments and withdraw certain claims. Plaintiffs withdraw the claim against the City of Blue Ash for civil rights violations ( see Doc. 10 at Page ID 45), concede that the SWAT team and Blue Ash Police officers participating in the search (and not involved in pulling Plaintiffs' trash or obtaining the search warrant) are entitled to qualified immunity on the constitutional claims ( see id. at Page ID 46), withdraw their state law claims against the City of Blue Ash ( see id. at Page ID 47), and withdraw the claims of false arrest, false prosecution, and abuse of process against all Defendants ( see id. at Page ID 48).

Based on the foregoing, all claims except counts one and three against Detective Gerhardt, Detective Kelly, and Officer Lewis are voluntarily withdrawn or are not an issue at this time, [7] and the following Defendants are dismissed: the City of Blue Ash, Chris Wallace, Dennis Boone, Robert Rockel, Robert Lily, James Schaeffer, and Chris Zielinski. The only issues remaining for analysis are Plaintiff's emotional distress and Fourth and Fourteenth Amendment ...


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