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Averyhart v. City of Shaker Heights

United States District Court, N.D. Ohio, Eastern Division

August 28, 2017

CITY OF SHAKER HEIGHTS, et al., Defendants.


          DONALD C. NUGENT, United States District Judge.

         This matter is before the Court upon Cross-Motions for Summary Judgment. Defendants, City of Shaker Heights, Patrolman Andrew Chenevey, Patrolman Steven Yung, Patrolman Kevin Ishler, and Patrolman Ante Cacic (hereafter referred to as “Officers”), filed a Motion for Summary Judgment on March 2, 2017 (ECF #25). Plaintiff, Todd P. Averyhart (hereafter “Mr. Averyhart”), timely filed a Brief in Opposition (ECF #41) and a Reply Brief was timely filed on behalf of all Defendants (ECF #29).[1]

         Mr. Averyhart filed a Motion for Partial Summary Judgment on June 17, 2017 (ECF #42), and Defendants timely filed a Brief in Opposition (ECF #44). Therefore, this matter is fully briefed and ripe for review.

         For the reasons set forth herein, Defendants' Motion for Summary Judgment (ECF #25) is GRANTED.


         The facts of this matter are largely undisputed, and are set forth below.

         On October 29, 2015, at approximately 6:45 p.m., a Shaker Heights police dispatch employee issued a radio call indicating that a resident of 3723 Lindholm Road, Ms. Cammons, reported that her kitchen window had been “shot out.”[3] Dispatch further reported that Ms. Cammons “described it as hearing a shot.” (IA Report, Page ID #30). In response to the radio call, Patrolmen Chenevey, Ishler and Cacic reported to Ms. Cammons' home at 6:56 p.m., approximately two minutes later.

         At that time, Mr. Averyhart was standing in the driveway of his home, which is located next to Ms. Cammons' house on Lindholm Road. The area in which Mr. Averyhart was standing was described as “extremely dark” at the time Officers arrived. (IA Report, PageID #35). When the Officers noticed Mr. Averyhart, they drew their firearms and asked him to show his hands, turn around, get down on his knees, lay face down and put his hands out. Officer Chenevey then handcuffed Mr. Averyhart and patted him down for weapons. At 6:57 p.m., Office Ishler asked Mr. Averyhart where he lived and if anyone else was in the vicinity. Mr. Averyhart indicated that he lived “right here.” (IA Report, PageID #33). At 6:58 p.m., Officer Cheveney assisted Mr. Averyhart back to his knees and asked Mr. Averyhart if he had identification. Mr. Averyhart replied that his license was in his pants pocket. Officer Chenevey retrieved the license and told Mr. Averyhart that the police were called because “someone called in hearing a gunshot.” (IA Report, PageID #33).

         At approximately 7:02 p.m., Officers Ishler and Cacic instructed Officer Chenevey by radio to release Mr. Averyhart because it was determined that a rock had broken Ms. Cammons' window. Officer Chenevey helped Mr. Averyhart to his feet, removed the handcuffs, and thanked him for his cooperation. At no time was Mr. Averyhart placed under arrest, and the entire encounter lasted approximately eight minutes. (See IA Report, PageID #35).

         On October 31, 2015, Mr. Averyhart filed a Confidential Complaint Form with the Shaker Heights Police Department. (See IA Report, PageID #38). An internal investigation was conducted and a Memorandum was issued by Commander John Cole of the Internal Affairs Office. (See IA Report, PageID #30). Commander Cole reviewed the reports of all parties involved in the incident, and reviewed the Officers' body camera footage with Mr. Averyhart. Commander Cole concluded that the Officers at the scene “did NOT violate any rules or regulations of the Shaker Heights Police Department during the encounter.” (IA Report, PageID #36).

         On December 6, 2016, Mr. Averyhart filed an Amended Complaint in this Court against the City of Shaker Heights and the four Officers he claims were involved with the incident.[4] Mr. Averyhart alleges five claims under 42 U.S.C. § 1983: Count I alleges unreasonable search and seizure under the Fourth Amendment; Count II alleges excessive force under the Fourth and Fourteenth Amendments; Count III alleges false arrest, false detention and false imprisonment under the Fourth Amendment; Count IV alleges municipal liability against the City of Shaker Heights for failure to train the Officers and for ratifying their acts; and, Count V alleges that Officers failed to intervene during the encounter. The remaining three Counts contain state law claims of assault and battery, false arrest/wrongful detention, and intentional infliction of emotional distress. Specifically, Mr. Averyhart alleges that he was diagnosed with anxiety disorder and Posttraumatic Stress Disorder as a result of the incident. (See ECF #42-6, PageID #761).


         A. Summary Judgment Standard

         The summary judgment standard is well-settled. Summary judgment is proper where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Nat'l Satellite Sports, Inc. v. Eliadis, Inc.,253 F.3d 900, 907 (6th Cir.2001). The Court cannot weigh the ...

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