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LeFever v. Ferguson

United States District Court, S.D. Ohio

July 9, 2013

JAMES FERGUSON, et al., Defendants. ALEX LeFEVER, Plaintiff,
JAMES FERGUSON, et al., Defendants

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For Virginia LeFever, Plaintiff (2:11-cv-00935-GLF-EPD): Paula Milsom Brown, LEAD ATTORNEY, Kravitz, Brown & Dortch, LLC, Columbus, OH; Rex H Elliott, LEAD ATTORNEY, Charles Horne Cooper, Jr., Cooper & Elliott - 2, Columbus, OH; Barton Ryan Keyes, Bradley A Strickling, Cooper & Elliott, LLC, Columbus, OH.

For James Ferguson, Defendant (2:11-cv-00935-GLF-EPD, 2:12-cv-00664-GLF-EPD): Gordon Pearce Shuler, LEAD ATTORNEY, Gordon P. Shuler Attorney at Law, LLC, Columbus, OH.

For Officer Ken Ballantine, Officer Bill Hatfield, City of Newark, Defendants (2:11-cv-00935-GLF-EPD): Gregory A Beck, LEAD ATTORNEY, Baker Dublikar Beck Wiley & Mathews - 2, North Canton, OH; Melvin L Lute, Jr, LEAD ATTORNEY, Baker Dublikar Beck Wiley & Mathews, North Canton, OH.

For Alex Lefever, Plaintiff (2:12-cv-00664-GLF-EPD): Daniel R Mordarski, LEAD ATTORNEY, Law Offices Of Daniel R. Mordarski LLC, Columbus, OH.

For Officer Ken Ballantine, City of Newark Ohio, Division of Police, Officer Bill Hatfield, City of Newark, Mayor Bob Diebold, Defendants (2:12-cv-00664-GLF-EPD): Gregory A Beck, LEAD ATTORNEY, Baker Dublikar Beck Wiley & Mathews - 2, North Canton, OH.



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This matter is before the Court on the motion for summary judgment of Defendants Licking County, Ohio and Dr. Robert Raker (the " Licking County Defendants" ) on Plaintiff Virginia LeFever's claims. (Case No. 2:11-cv-935, ECF No. 96.)[1] Also before the Court are Virginia LeFever's combined memorandum in opposition to all Defendants' motions for summary judgment (ECF No. 114), and the Licking County Defendants' reply in support of their motion (ECF No. 130). For the reasons explained below, the Court GRANTS the Licking County Defendants' motion.

I. Background

These consolidated cases arise out of Virginia LeFever's 1990 conviction for the aggravated murder of her husband, William LeFever in September 1988. Twenty-two years after being sent to prison for the murder, the trial court judge vacated Virginia's conviction and released her from prison. The basis for the trial court's ruling was the realization that Defendant James Ferguson, the forensic toxicologist in the Franklin County Coroner's Office who examined William LeFever's body in 1988, had lied at Virginia's trial about his credentials. Following the trial court's ruling ordering Virginia's release from prison, the Licking County (Ohio) Prosecutor dismissed the indictment against Virginia. In the cases before the Court, Plaintiffs Virginia (Case No. 2:11-cv-935) and her son Alex LeFever (Case No. 2:12-cv-664) sue Ferguson, Newark police officers Ken Ballantine and Bill Hatfield, then-Licking County Coroner Robert Raker, the City of Newark, Ohio, Licking County, and Franklin County.

William LeFever's death occurred while his and Virginia's divorce case was pending in an Ohio domestic relations court. In August 1988, the domestic relations court awarded Virginia full custody of the couple's minor children (Alex LeFever and his siblings) during the pendency of the divorce case. Virginia also obtained a restraining order against William. The final divorce hearing was scheduled to take

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place just six days after William's death. Also during this time period, Virginia was finalizing arrangements to move to California with the couple's children in order to take a new job.

One week before the final divorce hearing, William came back to the family home to have dinner with Alex and the other children, as authorized by an order of the domestic relations court. William fell asleep on the couch after dinner and remained at the house overnight. William acted strangely during the night, similar to the manner in which he acted when he had used illegal drugs in the past. (There is no dispute that William had problems with substance abuse.) William was roaming around the house naked and acting as if he was hallucinating. The next day, Virginia discovered an old prescription bottle of an antidepressant (Elavil) that had been prescribed to her in the past. Only a half tablet remained in the bottle even though there were approximately 20 pills left in the bottle the last time Virginia opened it.

Later that day, paramedics were called to the house after William became combative. William was taken to Licking Memorial Hospital (" LMH" ), where he alternated between periods of calmness and lucidity to episodes of combativeness and incoherence. William remained at the hospital the next day when his behavior worsened. At some point, William admitted to a nurse that he had taken Virginia's prescription anti-depressant medication in an effort to kill himself. Later that day, William went into cardio-pulmonary arrest and died.

Defendant Dr. Raker was the Licking County Coroner from 1979 through 2012. Dr. Raker was present at LMH on when two nurses informed him that William was admitted with an overdose of amitriptyline. Dr. Raker asked the nurses to notify him if it appeared William would die from an overdose because an overdose death fell within the jurisdiction of his office. Consistent with Dr. Raker's wishes, he was informed of William's death and arranged to have William's body transported to the morgue at LMH. That same day, Dr. Raker spoke with Virginia to obtain information regarding the circumstances surrounding William's death.

At the LMH morgue, Dr. Raker visually examined William's body. In his opinion, it was unusual in an overdose death to see as many bruises as were present on the body. Accordingly, Dr. Raker thought additional investigation was necessary before the death certificate could issue. Dr. Raker contacted the Newark (Ohio) Police Department and also arranged for an autopsy to be performed on William's body.

In 1988, the Licking County Coroner's Office did not have a forensic facility and did not have the means to conduct a forensic autopsy or toxicological analysis. Dr. Raker therefore arranged to have the Franklin County (Ohio) Coroner's Office perform the autopsy. Dr. Raker had referred cases to the Franklin County Coroner's Office since 1979 or 1980. Dr. Raker was not present for the autopsy and neither performed nor observed any toxicological testing on William's body.

After the Franklin County Coroner's office completed the autopsy, William's body was returned to a funeral home in Licking County. On October 12, 1988, about three weeks after William died, Defendant Ferguson (chief toxicologist in the Franklin County Coroner's Office) asked Dr. Raker to look for any " intramuscular injection sites" on William's body. With the assistance of Detective Hatfield, Dr. Raker re-examined the body with a magnifying class and found a potential injection site on William LeFever's left buttock. Dr. Raker excised a biopsy of the area and gave it to Detective Hatfield to hand over to the

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Franklin County Coroner's Office. Dr. Raker performed a similar biopsy nine days later at Dr. Ferguson's request and gave those samples to Detective Hatfield. A week later, William's body was transported back to the Franklin County Coroner's Office for further examination.

Two months after William died, Dr. Raker issued the death certificate, indicating that the investigation into the cause of death was still pending. Dr. Raker later received an official report from Dr. Patrick Fardal, then the Franklin County Coroner, stating that William died of exposure to amitriptyline and nortriptyline. Dr. Raker also received a toxicology report, which opined that there was an intramuscular injection of amitriptyline due to the high levels of amitriptyline found at the potential injection site in William's buttock. The toxicology report further opined that amitriptyline had been administered rectally due to high levels of the drug in William's lower colon.

In January 1989, four months after William's death, Dr. Raker received a supplemental toxicology report from Ferguson and Daniel Couri, Ph.D. (then the Director of Forensic Toxicology at the Franklin County Coroner's Office). Additional toxicology tests revealed the presence of arsenic and inorganic sulfate in William's body. Ferguson concluded that chronic and acute poisonings by arsenic and sulfur oxides contributed to William's death. The supplemental report indicated that the " immediate cause" of William's death was amitriptyline poisoning, but that chronic and acute poisonings by sulfur oxides and arsenic contributed to " the debilitated health of Mr. LeFever." Based on the findings and conclusions of Dr. Fardal and Ferguson, Dr. Raker did not believe that the poisoning was self-inflicted.

Following Virginia's indictment for William's murder, Dr. Raker issued a supplemental death certificate, which listed " acute amitriptyline and nortriptyline poisoning" as the cause of death and classified the manner of death as a homicide. The supplemental death certificate further stated that William (1) suffered from acute poisoning by sulfur oxide, arsenic, and strychnine and chronic poisoning by arsenic, (2) received amitriptyline by intramuscular injection, (3) received acute poisoning by " pulmonary and rectal route," and (4) received chronic poisoning " by oral route."

Virginia was ultimately convicted of aggravated murder and sentenced to life in prison. After Virginia's conviction, Ferguson wrote a " book or screen play" about the trial, titled " Angel of Mercy or Angel of Death?" and portraying himself as a hero whose toxicology analysis solved William's death and proved that Virginia murdered him. Virginia contends that Defendants Ferguson, Ballantine, and Raker concealed exculpatory evidence and fabricated the theory of poisoning that led to Virginia's conviction. As to Dr. Raker, Virginia alleges that he (1) possessed a copy of " Angel of Mercy or Angel of Death?" before Virginia's criminal trial and failed to disclose it to prosecutors and (2) failed to reveal before trial his opinion that William ingested arsenic orally, and (3) failed to reveal that he could not opine definitively about how strychnine entered William's body. (Pl.'s Opp'n, ECF No. 114 at PAGEID# 3942-46.)

In 2010, Ferguson pleaded no contest to falsification charges and was convicted of lying under oath. Armed with evidence of Ferguson's lies and checkered past, Virginia sought a new trial. In November 2010, the same judge who presided over her criminal trial two decades earlier granted Virginia's motion for a new trial and ordered Virginia's immediate release from prison. In April 2011, the Licking County prosecutor dismissed the case against Virginia.

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At the time of Virginia's release from prison, Alex was 26 years old. Alex's lawsuit alleges that he was wrongly separated from his mother during his formative years and that his mother's arrest and subsequent conviction caused him to be unlawfully seized and taken into custody by Licking County Children's Services.

In Case No. 2:11-cv-935, Virginia filed suit against Ferguson, Ballantine, Hatfield, Raker, the City of Newark, Franklin County, and Licking County, alleging federal and state causes of action arising out of her wrongful arrest and conviction for her husband's murder. (ECF No. 2 in Case No. 2:11-cv-935.) In Case No. 2:12-cv-664, Alex followed suit, asserting federal and state claims against the same Defendants. Virginia's Complaint alleges claims for (1) liability under 42 U.S.C. § 1983 for violation of her due process rights, (2) a § 1983 claim for violation of her Fourth Amendment rights, (3) a § 1983 claim for " malicious prosecution," (4) a § 1983 claim alleging " failure to intervene," (5) a § 1983 claim for a conspiracy to deprive her of her constitutional rights, and (6) various state law claims. Licking County and Dr. Raker move for summary judgment on all claims asserted against them.

II. Discussion

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie Power Prods. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

In viewing the evidence, the Court must draw all reasonable inferences in favor of the nonmoving party, which must set forth specific facts showing that there is a genuine issue of material fact for trial. Id . (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); Hamad v. Woodcrest Condo. Ass'n , 328 F.3d 224, 234 (6th Cir. 2003). A genuine issue of material fact exists " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Muncie , 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Consequently, the central issue is " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Hamad , 328 F.3d at 234-35 (quoting Anderson , 477 U.S. at 251-52).

A. Virginia's Abandoned Claims

Licking County moves for summary judgment in this action, including on all of the state-law claims alleged in Virginia's Complaint. In her opposition to summary judgment, however, Virginia states expressly that " she will no longer pursue" some of her claims against certain Defendants. Included among these abandoned claims are the state law claims alleged against Franklin County, Licking County, and the City of Newark. (ECF No. 114 at PAGEID# 3923.) The County is therefore entitled to summary judgment on Virginia's state law claims.

B. Virginia's Remaining Claims Against Licking County

Before proceeding to the merits of Virginia's federal claims against Licking County,

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the Court must first determine if Virginia pleaded any. Licking County argues that Virginia's Complaint does not allege a § 1983 claim against it, therefore precluding Virginia from imposing § 1983 liability against the County. (ECF No. 96 at PAGEID# 3204.) Virginia disputes this in her opposition to summary judgment, maintaining that she has asserted Section 1983 claims against Licking County under the authority of Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). (ECF No. 114 at PAGEID# 3961.) If Licking County is correct that Virginia has not asserted a Monell claim against it, the Court may summarily grant summary judgment in favor of the County, as Virginia expressly abandoned all of her state-law claims against Licking County. (ECF No. 114 at PAGEID# 3923.) See Tucker v. Union of Needletrades, Indus., & Textile Emps., 407 F.3d 784, 787-88 (6th Cir. 2005) (affirming the district court's refusal to consider a claim raised in opposition to summary judgment when plaintiff failed to plead it in his complaint); Spengler v. Worthington Cylinders , 514 F.Supp.2d 1011, 1017 (noting that a plaintiff may not defeat summary judgment by asserting a claim not pleaded in the complaint).[2]

1. Did Virginia Plead a Monell Claim Against Licking County

Virginia alleges Section 1983 claims in Counts I, II, III, IV, and V of the Complaint.[3] Each of these counts is structured similarly in that the first few paragraphs under each of them describe the alleged misconduct of the " Individual Defendants." (Compl. ¶ ¶ 89-93, 98-101, 104-109, 112-115, 118-123, ECF No. 2 at PAGEID# 20-26.) The final paragraphs under each count then go on to allege " policy" and " practice" in such a manner as to give notice that Virginia is asserting a Monell theory of liability. In Count I, Virginia alleges:

95. These widespread practices, so well-settled as to constitute de facto policy in the Newark Police Department , were able to exist and thrive because municipal policymakers with authority over the Department exhibited deliberate ...

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