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Andwan v. Village of Greenhills

United States District Court, S.D. Ohio, Western Division

August 21, 2017

PATRICIA A. ANDWAN, Plaintiff,
v.
VILLAGE OF GREENHILLS, et al., Defendants.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman, United States Magistrate Judge

         On September 9, 2013, initially proceeding through counsel, Plaintiff Patricia Andwan paid the requisite filing fee and filed this civil rights suit against the Village of Greenhills and related individual defendants. Because Plaintiff now proceeds pro se, [1]the case has been referred to the undersigned magistrate judge for all pretrial proceedings, including for a Report and Recommendation (“R&R”) on any dispositive motions. Currently pending are two separate motions for summary judgment filed by three remaining Defendants. For the reasons that follow, the undersigned recommends that those motions be GRANTED.

         I. Background

         Plaintiff Patricia Andwan is a resident of the Village of Greenhills (the Village), located in Hamilton County, Ohio. The Village employs its own police force, including Defendant Police Officer Andrew D. Moore. Officer Moore began employment with the Village on July 11, 2007, and began working as a full-time patrol officer on August 11, 2008. Defendant Gregory Lester is a civilian contractor for the Village, who in 2011 was engaged in tree-cutting operations for the Village.[2]

         Plaintiff's second amended complaint details a long history of acrimony between Ms. Andwan, Village officials, and its police force. She alleges that she is a former Village employee who last worked as a property manager for the Village in 2007, [3] and who has run for various political offices since 2007.[4] While Plaintiff maintains that the detailed history of her adverse relationship with the Village, its administration, and/or its police force is relevant to demonstrate the Defendants' motivation, [5] the claims in her second amended complaint are limited to the events of November 2, 2011, when Plaintiff was observed by Defendant Lester photographing tree removal operations near her residence.

         The most relevant event prior to November 2, 2011 was a related incident that occurred on or about September 1, 2011. (Doc. 103 at ¶13). During that event, Lester and his crew were directed by the Village to trim a dead tree, in response to a request made by Plaintiff herself to the Village. (Andwan Deposition, Volume I, Doc. 208 at 54). Though physically located in an adjacent yard, the tree partly encroached upon the townhouse property in which Plaintiff resides. Plaintiff testified that was the first time that she recognized Lester or his company, since, prior to that date, there were multiple “tree trimmers all over the place from time to time.” (Doc. 208 at 42). She went outside to observe the tree-cutting from the back of her property. During the operations, debris fell onto her property. Lester called Village police to complain about Plaintiff's proximity, and Defendant Moore responded. Moore asked Plaintiff to return to the inside of her home based upon safety concerns. Taking pictures of Moore, Plaintiff refused. Moore issued her a warning and left. Plaintiff later asked Lester and his crew to clean up the debris on her property, which they did. (Doc. 208 at 61).

         On November 2, 2011, Lester and his crew returned to the street on which Plaintiff resides, albeit at a further distance down the street from Plaintiff's home. Plaintiff again watched the crew from a nearby yard (not her own), and during a lull in the tree-trimming activity, walked over to the job site and took photographs of the tree trunk. Observing Plaintiff taking photos in close proximity to the job site, Defendant Lester again contacted Village police, and Defendant Officer Moore arrived around 9:50 a.m. Moore instructed Plaintiff to leave the area based on safety concerns, and threatened to arrest her if she did not comply.[6] Plaintiff alleges that he briefly “shoved” her by placing his hands on her chest, but that she did not fall and was not injured from that initial fleeting contact. (Andwan Dep., Vol. III, Doc. 210 at 388). As soon as he touched her, she began screaming at the top of her lungs “Get your hands off of me.” (Andwan Dep., Vol. II, Doc. 209 at 269, 288).

         Plaintiff alleges that after Moore placed his hands on her, she decided to walk away and either told Moore “I'm leaving” or “I'm going back here, ” or “you know…just made it apparent that when I turned I was going to go back between that area.” (Id. at 288-289). Turning her back to Moore, she took no more than one or two steps when in response, Moore seized her by placing his hands on the top of her shoulders from behind, [7] causing her to stop. Because she was walking forward at the time, she alleges the abrupt stop momentarily lifted her off the ground, for a half second. (Doc. 210 at 389-392). She testified that as she was being lifted, Moore's grip on the top of her left shoulder/coat came loose and she heard a “rip” from her shoulder and felt “excruciating pain, ” ending up kneeling on the ground. (Id. at 390, 392). She testified that she suffered an injury to her shoulder in that moment. (Id. at 394). While she “sagged down” after Moore lost his grip on her left shoulder, Moore grabbed her left arm or wrist and twisted it up behind her back in order to handcuff her. (Id. at 393, 395). He told her she was under arrest as he did so. The entire sequence of the arrest (from seizure to trying to cuff her) was one continuous motion by Moore, and did not take more than one or two seconds. (Id. at 395-396). Plaintiff continued screaming throughout. (Id. at 395).

         As Plaintiff resisted the application of the second handcuff by Moore, he “shoved” her towards his adjacent patrol car and “pinned” her face down, while she continued to struggle.[8] He did not complete the action of cuffing Plaintiff but instead simply held her in place while he called on his radio for backup. While he awaited the arrival of backup, he did not lean in against her as he did initially when placing her against his vehicle, but loosened his grip. (Doc. 210 at 401). Numerous police responded within 2-3 minutes, and a second officer assisted Moore in cuffing Plaintiff's still-free hand.

         Plaintiff alleges that, after she was cuffed, Moore “shoved” her in the back of his squad car. She complains that it “certainly wouldn't have been what a chauffeur would have done to escort someone carefully and to assist an elderly to get into a car, ” but she does not claim any additional injury other than continued pain from the shoulder injury experienced within the first two seconds of her arrest. (Doc. 210 at 404-405). Nevertheless, she testified that because Moore failed to secure her with a seatbelt, she fell over and experienced further pain to her injured shoulder, because she slid around as he drove her to the station. (Doc. 210 at 401-402). Plaintiff testified that after her initial injury, her shoulder and arm were “aching” in the police car “but it wasn't this excruciating, sharp, intensity….” (Id. at 398-399). In response to Defendants' motions for summary judgment, she included a form that purports to be Officer Moore's “Booking Officer Questions” on the date of her arrest, including his notation of “arm and wrist aching” to the question “Does Subject Have Any Health Problems, Illnesses, Injuries, or Mental Disorders?” (Doc. 213-1 at 5, Plaintiff's Exhibit C).

         Although her current complaint alleges she suffered bruises, “loss of wrist and arm movement, a torn rotator cuff and loss of muscle turning range in her neck…which requires surgery to resolve, ” she conceded that she did not experienced any bruising, and she has produced no evidence of a rotator cuff tear, loss of muscle turning range, or surgical recommendation that would either document the 2011 shoulder injury or link any subsequent record of injury to the November 2, 2011 incident. (Doc. 209 at 359). The only reference to surgery in Plaintiff's deposition testimony was that, during a visit with friends over the 2011 Christmas holiday, her friends theorized that she might have a rotator cuff injury that could require surgery, and suggested that she see a doctor. (Id. at 355-356). Plaintiff alleges additional damages attributable to “emotional trauma including an anxiety disorder” based upon “the Defendants[‘] previous law enforcement harassment and the excessive force incident.” (Doc. 103 at ¶21).

         Plaintiff was transported to the Hamilton County Justice Center, where she was released at approximately 5 or 6 pm the same day. (Doc. 208 at 195). Justice Center records do not indicate any complaints of pain on her intake form. She did not seek medical treatment for her alleged shoulder injury in the weeks following her release.

         Plaintiff was initially charged with disorderly conduct and resisting arrest, but the charge of resisting arrest was later dismissed.[9] Plaintiff was subsequently prosecuted for disorderly conduct, but her prosecutions terminated with acquittals on May 23, 2012 and on September 19, 2012, respectively.

         In her second amended complaint, Plaintiff articulates three claims against Moore (in both his official and individual capacities) and the Village (jointly referred to herein as “the Village Defendants”). In her first two claims, she alleges that both are liable for Moore's use of excessive force in violation of the Fourth Amendment of the U.S. Constitution, and for the deprivation of her right to be free of unreasonable search and seizure under the Fourth Amendment. Her complaint also alleges assault and battery in violation of state law. (Doc. 103, Counts One and Two).

         Plaintiff further alleges that the Village “ratified” Moore's conduct and “as a matter of business policy or deliberate indifference” did not properly train Moore, or alternatively, has an “official business policy of not supervising Moore.” (Doc. 103 at ¶26). Plaintiff alleges that the Village and Moore “were…motivated by a malicious intent to physically retaliate against the Plaintiff” based upon her prior First Amendment activity, which was critical of the Village and its police force. (Id. at ¶27). In a separately stated third claim against Moore and the Village, Plaintiff alleges that the Defendants inflicted “emotional distress requiring medical treatment” upon Plaintiff by “tormenting and mistreating her at public meetings…during and after [the] excessive force arrest….” (Count Three).

         “Count Four” of Plaintiff's second amended complaint contains allegations and two additional state law claims against Defendant Lester, pleaded in the alternative. Plaintiff alleges generally that Lester has “engaged in a pattern and practice of making false and petty police reports about the Plaintiff allegedly interfering with his government financed tree cutting business….” (Doc. 103 at ¶37). On November 2, 2011 in particular, she alleges that Lester called police to falsely report that Plaintiff was interfering with his tree cutting operations, leading to Plaintiff's subsequent arrest. She alleges that Lester “did not have a good faith basis to accuse the Plaintiff of any crime and was motivated by a malicious intent to retaliate and find a way to get the Plaintiff arrested and punished given the Plaintiff had made numerous complaints about his business operations to Village council on prior dates.” (Id. at ¶40). She alleges that Lester intimidated one of his employees “to swear out a false police report, ” which led to her “malicious prosecution.” (Id.) Plaintiff further claims that Lester “has committed an abuse of process” because his complaint, even if supported by probable cause, was made “with an ulterior motive to pervert…the justice system …to use a petty criminal law complaint to protect a publicly financed business from criticism by a tax payer….” (Count Four, Doc. 103 at ¶42).

         On March 11, 2015, the two Village Defendants moved for partial judgment on Plaintiff's state law assault and battery claim, as barred by the statute of limitations, and on grounds that Plaintiff's intentional infliction of emotional distress claim could not be stated against the Village as a governmental entity. (Doc. 110). This Court granted that motion. (Doc. 114). Therefore, only Plaintiff's §1983 claims against the Village and Officer Moore remain, along with Plaintiff's intentional infliction of emotional distress claim against Officer Moore alone, [10] and her two state law claims against Defendant Lester.

         The Village Defendants and Defendant Lester have filed separate motions for summary judgment on all remaining claims. (Docs. 199, 200). Plaintiff failed to file a fully responsive memorandum in opposition, despite this Court's repeated warnings to Plaintiff that she was required to do so. However, on June 9, 2017, Plaintiff filed a “pro se objection to Magistrate [Judge] Bowman's Order (Doc. 205)…and Stopgap Response Brief” which has been fully considered by the undersigned, including the 138 pages of exhibits attached by Plaintiff to her “stopgap” response. (Doc. 213). Defendants object to the consideration of those exhibits on grounds that - other than the Defendants' discovery responses - the exhibits have not been authenticated, and many contain Plaintiff's handwritten notes.

         Rule 56(c) requires parties to cite to particular materials in the record to support any fact. “A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Rule 56(c)(2). The undersigned recognizes as well-founded Defendants' objections that none of Plaintiff's exhibits are properly authenticated and that they are inadmissible in their present form. However, the undersigned also recognizes that the Defendants do not contend that any of the exhibits have been falsified. To that extent, the undersigned believes that the exhibits that have been considered could be properly authenticated, and could be presented in an admissible form notwithstanding their current inadmissible form.[11] The undersigned also has reviewed and considered Plaintiff's deposition testimony as a whole. See Rule 56(c)(3)(permitting a court to consider not only cited materials, but all materials in the record).

         In addition to her “stopgap” response, Plaintiff has filed a motion seeking another “discovery status hearing, ” this time with presiding District Judge Michael R. Barrett. That motion has been denied by separate Order filed herewith.

         II. Analysis

         A. Standard of Review

         In a motion for summary judgment, a court must view “the facts and any inferences that can be drawn from those facts - in the light most favorable to the nonmoving party.” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir.2007) (internal quotation marks omitted). “Summary judgment is only appropriate ‘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 a judgment as a matter of law.'” Id. (quoting Fed.R.Civ.P. 56(c)) (internal quotation marks omitted). “Weighing of the evidence or making credibility determinations are prohibited at summary judgment - rather, all facts must be viewed in the light most favorable to the non-moving party.” Id.

         The requirement that facts be construed in the light most favorable to the Plaintiff, however, does not mean that the court must find a factual dispute where record evidence contradicts Plaintiff's wholly unsupported allegations. After a moving party has carried its initial burden of showing that no genuine issues of material fact remain in dispute, the burden shifts to the non-moving party to present specific facts demonstrating a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility' of a factual dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir.1992) (citing Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir.1986)). In order to defeat a motion for summary judgment, the non-moving party must present probative evidence that supports its complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). The court determines whether the evidence requires submission to a jury or whether one party must prevail as a matter of law because the issue is so one-sided. Id. at 251-52. Although reasonable inferences must be drawn in favor of the opposing party, see Matsushita, 475 U.S. at 587, inferences are not to be drawn out of thin air. To demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts .... Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Id., 475 U.S. at 586-587 (citation omitted).

         The undersigned begins with the analysis of Defendant Lester's motion for summary judgment on the two state law claims filed against him, before turning to the motion filed by the Village Defendants.

         B. Defendant Lester's Motion for Summary Judgment

         1. Malicious Prosecution Claim

         Defendant Lester argues first that Plaintiff's malicious prosecution claim is barred by Ohio's one-year statute of limitations. Under Ohio Revised Code § 2305.11, a malicious prosecution claim must be brought “within one year after the cause of action accrued.” Here, Plaintiff's claim accrued when she won acquittal on the underlying disorderly conduct charges, on May 23, 2012 and on September 19, 2012. However, Plaintiff did not identify Lester (or his business) as a Defendant until she filed her first amended complaint on October 27, 2014, more than two years after any malicious prosecution claim arose. Therefore, her malicious prosecution claim is time-barred.

         In her response in opposition to Defendant Lester's motion, Plaintiff argues that because her initial complaint through counsel was filed on September 9, 2013 (within one year of the 9/19/12 acquittal), her amended complaint should “relate back to that date.” (Doc. 213 at 4). Whether new claims asserted against newly identified defendants “relate back” to the date that the original complaint was filed is governed by Rule 15(c), Fed.R.Civ.P. As a matter of law under Rule 15(c), and for the reasons stated in Defendant Lester's reply memorandum, Plaintiff's claims against Lester clearly do not relate back to her original complaint.

         The original complaint named only the Village of Greenhills, Thomas Doyle, Andrew Moore, Robert Dean and Anne Ward as Defendants. (Doc. 1). The vast majority of that complaint related to conduct by the Village and its officials dating from 2007-2012. The only reference to the events of November 2, 2011 referred to a “private contractor engaged by Defendant Village” without otherwise identifying the contractor as Lester. (Doc. 1 at ¶32). Although the complaint included a malicious prosecution claim against Defendant Moore based upon the November 2, 2011 incident, no reasonable person would have construed the allegations as alleging a claim against the unidentified “private contractor.” And, while Plaintiff's original complaint also contained two “abuse of process” claims, those claims also were clearly directed to the “ongoing conflict with numerous officials of Defendant Village for many years prior to the above-described events of May and June, 2011 and of November, 2011.” (Doc. 1 at ¶55).

         Plaintiff was aware of the alleged conduct of Lester at the time of the criminal hearings. (Doc. 213 at 5, citing the “conflicting stories” of Lester during her 2012 criminal trials). Therefore, she clearly was aware of all facts necessary to make out her claims by not later than September 19, 2012. Defendant Lester did not receive notice of the original complaint, was not named in the original complaint, and was not even identified by name. Based upon the pleadings, the undersigned finds no basis to “relate back” to September 9, 2013, Plaintiff's newly asserted pro se claims against Defendant Lester in the October 27, 2014 version of her amended complaint. See In re Kent Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1449 (6th Cir. 1991) (“[T]he precedent of this circuit clearly holds that ‘an amendment which adds a new party creates a new cause of action and there is no relation back to the original filing for purposes of limitations.'” (internal citation omitted)); accord, Lester v. Wow Car Co., Ltd., 675 Fed.Appx. 588, 592-593 (6th Cir. 2017).

         2. Abuse of Process

         Unlike Plaintiff's time-barred malicious prosecution claim, her abuse of process claim is governed by a longer statute of limitations, and is not time-barred.[12] The tort of malicious prosecution provides a remedy when a proceeding is instituted without probable cause. By contrast, the separate tort of abuse of process is available “when process is used to accomplish an improper ulterior purpose, ” even though probable cause exists. Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 626 N.E.2d at 118, 68 Ohio St.3d at 298. “Abuse of process does not lie for the wrongful bringing of an action, but [only] for the improper use, or ‘abuse, ' of process.” Kremer v. Cox, 114 Ohio App.3d 41, 51, 652 N.E.2d 1006 (Ohio Ct. App. 9th Dist. 1996) (internal quotation marks and citation omitted). The Ohio Supreme Court repeatedly has explained that when probable cause is lacking, an abuse of process claim cannot lie, and the plaintiff must instead proceed under malicious prosecution.

We hold that the three elements of the tort of abuse of process are: (1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process.
Even though the tort of malicious prosecution and the tort of abuse of process have different elements, in some situations the same facts which may constitute an abuse of process may also support an action for malicious prosecution. In that case, a complaint could allege both causes of action, in separate counts. In such a situation, a consideration of whether probable cause was present to bring the underlying litigation would be the key to determining under which tort theory the action should proceed.

Id. (footnotes omitted, emphasis added); see also Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005) (citing Yaklevic ...


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