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Przybysz v. City of Toledo

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

October 17, 2017

Marcia Przybysz, Plaintiff
City of Toledo, et al., Defendants.


          James G. Carr Sr. U.S. District Judge

         This is a 42 U.S.C. § 1983 dispute over the death of Thomas Przybysz (Thomas), a young man who agreed to act as an informant for the Toledo Police Department. In retribution for his assistance to the police, the target of the investigation later orchestrated Thomas' murder.

         Marcia Przybysz (Przybysz), Thomas' mother and the personal representative of his estate, seeks to hold Toledo Police Sergeant Karrie Williams individually liable for Thomas' death. She also seeks recovery against the City of Toledo pursuant to Monell v. New York City Dep't of Social Servs., 436 U.S. 658 (1978).

         Jurisdiction is proper under 28 U.S.C. § 1331.

         Pending are the parties' counter-motions for summary judgment. (Docs. 37, 38). Also pending are plaintiff's motions to exclude defense expert Michael Levine's testimony, and to strike the affidavit of the undercover officer who assisted in the operation. (Docs. 53, 54).

         For the reasons discussed below, I deny plaintiff's motions and grant defendants' motion.


         On April 13, 2014, Toledo Police arrested Thomas at a local McDonald's. Thomas was “highly intoxicated” and had controlled substances on his person. State authorities charged him with several drug offenses and (on account of his daughter's presence) child endangerment. (Doc. 37-2, ID 616-18).

         After his arrest, Sgt. Williams informed Thomas he could “work off” his charges if he agreed to act as an informant. Thomas took Sgt. Williams up on the offer and contacted her a week later with information concerning his supplier, Scott Warnka. (Doc. 40, ID 845-46).

         Warnka sold cocaine at Thomas' workplace, the Toledo Jeep assembly plant, using Thomas' car as the drop off point. Thomas would take money from purchasers inside the plant and leave it in his car. Then, Warnka “would come up to the Jeep plant, take the money . . . and replace it with dope.” (Doc. 40, ID 847).

         Sgt. Williams arranged for an undercover officer to meet Warnka for an initial controlled buy on May 13, 2014. (Id.; Doc. 43, ID 917). Thomas told the undercover officer where to find his car and what to expect when Warnka arrived. (Doc. 43, ID 917-18).

         The first buy went off without a hitch. The undercover officer dressed as a Jeep employee and purchased $50 worth of cocaine from Warnka. (Id.). Warnka testified that at the time, he was unaware his customer was working for the police. (Warnka Dep. at 13-14).

         Less than a week later, Thomas called Sgt. Williams again. He told her Warnka was eager to “get rid of” his supply and planned to “leave town” for the weekend, prompting Sgt. Williams to arrange a second controlled buy on May 21, 2014. (Doc. 40, ID 848). This time, the undercover officer contacted Warnka directly, without using Thomas as a go-between. The two again met in Thomas' car outside the Jeep plant. (Id.).

         When the undercover officer completed the deal, he remarked that “everything [was] copasetic”-signaling to a nearby surveillance team that it was time to move in and make an arrest. (Doc. 43, ID 919-20). Several masked officers rushed the car and arrested Warnka. They also “arrested” the officer so as not to blow his cover. (Doc. 40, ID 849-50; Doc. 43, ID 920-21; Warnka Dep. at 41-43).

         Warnka had realized immediately that Thomas had set him up. No one had explicitly told him as much, but Warnka deduced the connection first, because “[p]eople who get high don't use th[e] word” “copasetic, ” and second, because an unidentified arresting officer told him “right at the scene” that he “just sold to an undercover cop.” (Warnka Dep. at 42-45).[1]

         Warnka bonded out of jail the next day (May 22), and began threatening Thomas via text message that same evening. Thomas reported the texts to Sgt. Williams, who called him within six hours of learning about the threats. (Doc. 37-1, ID 608-12; Warnka Dep. at 49, 59-61; Doc. 40, ID 853).

         Sgt. Williams testified that during their conversation, Thomas “was not concerned” that Warnka would actually “do the things that he was threatening” to do. (Doc. 40, ID 852). He assured her that if Warnka came to his house, he would “defend himself, ” though “he said Case: 3:16-cv-00353-JGC Doc #: 61 Filed: 10/17/17 4 of 28. PageID #: 1587 something about not having a CCW.” (Doc. 37-1, ID 611). Sgt. Williams told him to save the text messages so the state could use them to charge Warnka with intimidation. (Doc. 40, ID 852).[2]

         Shifting the conversation back to his work as an informant, Thomas asked Sgt. Williams to get in touch with his employer about an upcoming drug test. He also offered to facilitate a third controlled buy for the Toledo Police “for free.” (Doc. 37-1, ID 612).

         That night, John Haugh (one of Warnka's associates) camped outside Thomas' home. When Thomas returned from work in the early morning hours of May 23, 2014, Haugh attacked Thomas, fatally stabbing him. An Ohio jury convicted Haugh of aggravated murder. Warnka pleaded guilty to first-degree manslaughter for his role in encouraging the attack. See State v. Haugh, 2016-Ohio-8008, 2016 WL 7102972, *1, 4 (Ohio App.).

         Plaintiff subsequently filed this § 1983 action against the City of Toledo and several individual officers, including Sgt. Williams. She seeks damages and injunctive relief requiring defendants to implement “additional training . . . so that [officers] will be better prepared” to safely conduct confidential-informant investigations. (Doc. 6, ID 17).


         A. Motion to Strike the Undercover Officer's Affidavit

         In support of their motion for summary judgment, defendants offered an affidavit from the undercover officer who purchased cocaine from Warnka. Przybysz moves to strike that evidence on the theory that it amounts to a “sham affidavit”-one that impermissibly, under prevailing Sixth Circuit case law “directly contradicts, without explanation, ” the officer's “previous testimony.” Arel, S.R.L. v. PCC Arifoils, L.L.C., 448 F.3d 899, 908 (6th Cir. 2006) (citation omitted).

         The rule against sham affidavits prevents a party from submitting a post-deposition affidavit that contradicts his earlier sworn testimony. France v. Lucas, 836 F.3d 612, 622 (6th Cir. 2016). Plaintiff contends it applies here because the undercover officer gave conflicting accounts about his use of the term “copasetic” during the controlled buy leading to Warnka's arrest.

         Specifically, in his affidavit, the undercover officer attested that he used the word “copasetic” during both the May 14, and May 21, transactions. (Doc. 37-3, ID 620-21). Yet, according to plaintiff, the officer “never testified” that he used “copasetic” during the May 14, purchase in his deposition. Rather, she claims the undercover officer testified that he used the term only during the May 21, purchase as a signal to initiate Warnka's arrest. (Doc. 54, ID 1323).

         Plaintiff is mistaken.

         Although Przybysz's counsel did not specifically question him about the language he used during the May 14, purchase, the undercover officer volunteered that he did, in fact, use “copasetic” in on both occasions:

Q: When you used the word ‘copasetic' the first time, did Scott Warnka turn around and say, ‘What did you say?'
A: Well, the first time that day was one thing. But I had used it the first time at the first buy. That's why we used it as this code word [during the second buy].

(Doc. 43, ID 920).

         I must strike a sham affidavit where a party uses it to create a disputed issue of fact in the face of previous testimony “indicat[ing] that no such dispute exists.” Aerel, 448 F.3d at 907. “This is a far cry, however, from preventing a party who was not directly questioned about an issue from supplementing incomplete deposition testimony with a sworn [non-contradictory] affidavit.” Id.; see also Briggs v. Potter, 463 F.3d 507, 513-14 (6th Cir. 2006). That is all defendants do here.

         Przybysz has not identified any contradiction, much less the type of “clear, direct contradiction” ordinarily necessary to exclude an affidavit. Siewestersen v. Worthington Steel Co., 134 F.Supp.3d 1091, 1099 (N.D. Ohio 2015) (citing Aerel, 448 F.3d at 909). Accordingly, I deny plaintiff's motion to strike the affidavit.[3]

         B. Motion to Exclude Defense Expert's Testimony

         Next, plaintiff moves to exclude the testimony of defendants' expert, Michael Levine. Levine testified that, “in consideration of the totality of [the] circumstances, ” Sgt. Williams' handling of the investigation and her reaction to Warnka's threats against Thomas was “perfectly reasonable.” (Doc. 53-1, ID 1296).

         Federal Rule of Evidence 702 requires me to perform a “gate-keeping” function when considering the admissibility of expert testimony. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993). That rule provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

         Rule 702 applies not only to scientific testimony, but also to other types of expert testimony based on technical or other specialized knowledge. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999).

         My gate-keeping duties here are threefold.

         First, I determine whether the witness is qualified as an expert; second, whether his testimony is reliable; and third, whether the expert's reasoning or methodology properly applies to the facts at issue-whether, in other words, his opinion is relevant. Buck v. Ford Motor Co., 810 F.Supp.2d 815, 822 (N.D. Ohio 2011).

         Przybysz challenges Levine's testimony on all three grounds.

         1. Levine's Qualifications

         First, plaintiff argues that Levine “does not have the requisite, relevant law enforcement experience” necessary to testify as an expert because he retired from the United States Drug Enforcement Agency in 1990. (Doc. 53, ID 1276, 1280). Her observation ...

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