United States District Court, N.D. Ohio, Eastern Division
TODD P. AVERYHART, Plaintiff,
CITY OF SHAKER HEIGHTS, et al., Defendants.
C. NUGENT, United States District Judge.
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).
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.
reasons set forth herein, Defendants' Motion for Summary
Judgment (ECF #25) is GRANTED.
facts of this matter are largely undisputed, and are set
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.” 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
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).
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).
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).
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. 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).
Summary Judgment Standard
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