United States District Court, N.D. Ohio, Western Division
G. Carr Sr. U.S. District Judge
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.
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).
is proper under 28 U.S.C. § 1331.
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).
reasons discussed below, I deny plaintiff's motions and
grant defendants' motion.
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).
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).
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).
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).
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).
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.).
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.
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
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).
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).
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).
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
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
Motion to Strike the Undercover Officer's
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
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.
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).
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
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).
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.
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
Motion to Exclude Defense Expert's Testimony
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).
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
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
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).
gate-keeping duties here are threefold.
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).
challenges Levine's testimony on all three grounds.
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 ...