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Wheatt v. City of East Cleveland

United States District Court, N.D. Ohio

November 9, 2017

DERRICK WHEATT, et al., Plaintiffs,
CITY OF EAST CLEVELAND, et al., Defendants.

          OPINION & ORDER [RESOLVING DOC. NOS. 77, 78, 84, 86, 87, 97, 105]


         In this 42 U.S.C. § 1983 action, all parties move for summary judgment. Plaintiffs Derrick Wheatt, Laurese Glover, and Eugene Johnson seek partial summary judgment against Defendants Perry, Johnstone, and Miklovich, on their Fourteenth Amendment due process claim for the use of unduly suggestive identification techniques, and against Defendant Naiman on their denial of access to courts claim.[1]

         Defendants Dunn, Naiman, Marino, and Cuyahoga County (hereinafter the “County Defendants”) seek summary judgment on all of Plaintiffs' claims against them.[2] Similarly, Defendants Dunn, Johnstone, Lane, Miklovich, Perry, Teel, Bradford, and the City of East Cleveland (hereinafter the “City Defendants”) also seek summary judgment on all of Plaintiffs' claims.[3]

         The City Defendants have also filed a “pro se” brief asserting qualified immunity.[4]

         For the following reasons, the Court DENIES Plaintiffs' motion for summary judgment. The Court DENIES the County Defendants' motion for summary judgment on Plaintiffs' access to courts claim.

         The Court GRANTS IN PART and DENIES IN PART the City Defendants' motion for summary judgment. The Court also GRANTS Plaintiffs' motion to strike the City Defendants' “pro se” brief.

         Finally, the Court GRANTS Defendants' motions for summary judgment on Plaintiffs' conceded claims.

         I. Background

         This case follows Derrick Wheatt's, Laurese Glover's, and Eugene Johnson's overturned convictions for the 1995 murder of Clifton Hudson.[5] Plaintiffs allege that they were wrongfully convicted because the City Defendants failed to disclose exculpatory evidence. Plaintiffs also allege that, two years after their convictions, the County Defendants obstructed Plaintiffs' attempts to obtain this exculpatory evidence, to prevent Plaintiffs from obtaining exculpatory evidence that could show they were not guilty and to ensure that they would remain imprisoned.

         A. Clifton Hudson's Murder and Plaintiffs' Conviction

         On February 10, 1995, 19 year-old Clifton Hudson was shot and killed on Strathmore Avenue in East Cleveland, Ohio.[6] At the time of the shooting, Plaintiffs were in a black GMC SUV next to a post office on Strathmore.[7] Plaintiffs say it was happenstance that they were in the area of the killing and say they had nothing to do with the killing. The post office is on the southeast side of a bridge on Strathmore Avenue.[8]

         Tamika Harris, who was 14 years old at the time, witnessed the shooting while hiding behind this bridge.[9] She saw Plaintiffs' SUV. She also saw the shooter.[10] Harris described the shooter as a black male, 5'7” or taller, and wearing what she described as a red and blue Tommy Hilfiger-style jacket.[11]

         Officers connected the GMC SUV to Plaintiffs, and arrested Plaintiffs later that night.[12]They also impounded Plaintiffs' vehicle.[13] When he was arrested, Plaintiff Johnson had a jacket similar to the one Harris described.[14]

         During their investigation of the crime, officers interviewed or received statements from numerous people, including Derek Bufford, who was victim Clifton Hudson's brother, and the Petty brothers.[15] The Petty brothers were eight and ten years old at the time of the shooting. According to their statements, one or both of them witnessed the shooting.[16]

         Plaintiffs contend that Defendants failed to provide them exculpatory evidence. For example, Derek Bufford, the victim's brother, gave police a statement that in the weeks before Hudson's murder, both he and his brother were approached and threatened by men with guns.[17]Bufford stated that the men who approached him and his brother with guns had driven a gray Chevrolet Cavalier.[18] Police showed Bufford pictures of Plaintiffs and pictures of their GMC. Bufford did not identify either Plaintiffs or their GMC as involved with the earlier threat.[19]

         In the days after the shooting, the Petty brothers' mother, Monica Salters, called the police and told them that her son Eddie Dante Petty saw the shooting.[20] She stated that her son saw the shooter come out of the post office parking lot, walk towards the victim, and shoot him.[21] Salters also said that her son had seen the shooter before, and that the shooter might be an older brother of one of Eddie Petty's classmates.[22] After he saw the shooting, Eddie ran home and saw his brother Gary shoveling snow.[23] The report with Salters' statement describing her son's statement that he had earlier seen the shooter and that the shooter could be an older brother of a classmate was not immediately placed into the police file.[24]

         After searching for Eddie Petty for two days, officers found and interviewed his brother, Gary Petty.[25] Gary stated that he saw the shooter exit the post office parking lot driveway, walk towards the victim, and shoot him.[26] Gary said that the victim was dark-skinned and about 5'5” tall.[27] After witnessing the shooting, Gary Petty ran home to tell his mother about what he saw.[28]

         The police also obtained an identification of the shooter from Tamika Harris. The police showed Harris only three pictures, one each of Plaintiffs Wheatt, Glover, and Johnson.[29] Out of these pictures, Harris identified Johnson as the shooter.[30] Harris also identified Plaintiffs' GMC as the vehicle she saw the day of the shooting.[31]

         In January 1996, a jury convicted Plaintiffs of murdering Clifton Hudson. During the trial, Prosecutor Michael Horn used Tamika Harris's testimony to identify Plaintiffs as involved with the killing. Ohio buttressed Harris's testimony with evidence that Harris earlier identified Plaintiffs in a photo array.

         Harris testified that she saw Plaintiff Johnson walk up behind Clifton Hudson on Strathmore Avenue and shoot him.[32] Then, Plaintiffs' black GMC came towards her, turned off of Strathmore onto another street, and then turned again out of her sight.[33] At about the same time, she stated that she saw Plaintiff Johnson run past her towards the GMC.[34]

         She said that she could see the shooter's face enough to identify him, and saw his clothing.[35] She also said that she could see two people in the GMC, but could not identify them.[36] Harris also identified Johnson in open court.[37]

         Prosecutor Horn also presented testimony from a forensic expert about gunshot residue found on Plaintiffs' hands, on Plaintiffs' GMC, and on gloves purportedly belonging to Plaintiff Johnson.[38] Neither Bufford nor the Petty brothers testified at the trial.

         B. The 1998 Public Records Request

         In June 1998, Plaintiffs' convictions were final, and they had completed all direct appeals. One of Plaintiffs' attorneys began investigating possible post-conviction relief.[39] As part of this investigation, he contacted then-Mayor of East Cleveland Emmanuel Onunwor about obtaining the police file in the case through a public records request.[40]

         Mayor Onunwor was willing to release the record, as there had been community concern that Plaintiffs had been wrongly convicted.[41] Before he released the police file, however, he received a letter from the Cuyahoga County Prosecutors Office (“Cuyahoga Prosecutor's Office”). At the time the Cuyahoga Prosecutor's Office wrote the letter, all direct appeals had finished and no post-trial petitions had been filed.

         The Cuyahoga Prosecutor's Office prosecuted felonies occurring within East Cleveland, and had prosecuted Plaintiffs' case. The Cuyahoga Prosecutor's Office's letter to Mayor Onunwor stated that the police file was “not a public record” and that releasing the file “could constitute a wilful [sic] violation of the law.”[42] The letter also “directed” the city to turn over the police file to the Cuyahoga Prosecutor's Office investigator who delivered the letter, along with “any and all copies [of the record] which exist elsewhere, including, but not limited to, the Records Room of East Cleveland.”[43] The city was told to do all of this “forthwith.”[44]

         Defendants Marino and Naiman signed this letter and addressed it to Defendant Dunn and the East Cleveland Police Department.[45] Both Naiman and Marino were Cuyahoga Prosecutor's Office prosecutors, but neither worked on or supervised the Clifton Hudson murder case before or after sending this letter.

         They drafted this letter because Defendant Naiman received a call from someone in the East Cleveland Police Department stating that Mayor Onunwor was going to release the police file.[46] Naiman states that she viewed Plaintiffs' attempts to get the file as an improper discovery request according to the law at the time.[47]

         She says that she drafted this letter after consulting with both someone in the Cuyahoga Prosecutor's Office appeals unit and Defendant Marino.[48] She believes she was warned by East Cleveland Police Officer Dunn that Mayor Onunwor was considering releasing the investigatory file, and she believes she consulted with someone in the Cuyahoga Prosecutor's Office appeals unit.[49] Defendant Marino was a supervisor in the Cuyahoga Prosecutor's Office at the time, although he was not Defendant Naiman's direct supervisor.

         After receiving the letter, the city gave the file to the Cuyahoga Prosecutor's Office and refused to release the file to Plaintiffs' attorney. Apparently, the city retained a file copy.

         C. Plaintiffs' Successful Motion for a New Trial

         In 2004, Tamika Harris recanted her prior testimony.[50] She stated that she never saw the shooter clearly, and could only identify him by his jacket.[51] She identified Plaintiff Johnson only because of the jacket he wore in his photo and because one of the officers showing her the photo directed Harris to Johnson's photo while she was picking.[52]

         She also stated that at the time of the photo identification, the officers identified the men in the photos as “suspects” and asked her to pick the shooter.[53] Once she picked Johnson's photo, the officers told her that they had already arrested the men in the photos, and that the men had gunshot residue on them when they were arrested.[54]

         By 2013, the Ohio Innocence Project had taken an interest in Plaintiffs' case. In that year, they obtained the East Cleveland Police Department investigation file through a public records request.

         Based on materials in that file, Plaintiffs alleged that at the trial stage, the State had withheld potentially exculpatory evidence, including statements by Derek Bufford and the Petty brothers. An Ohio trial court accepted the Plaintiffs' argument, overturned Plaintiffs' convictions, and awarded them a new trial. The Ohio appellate courts upheld that award of a new trial on appeal.


         Plaintiffs now allege that the City Defendants withheld exculpatory evidence. This exculpatory evidence includes the statements by the Petty brothers and Derek Bufford, as well as the suggestive procedures that led to Tamika Harris's identification of Plaintiff Johnson.

         Plaintiffs also allege that the City Defendants fabricated evidence, including the glove allegedly belonging to Plaintiff Johnson and some statements in the police reports. Further, Plaintiffs allege that the identification process used to produce Tamika Harris's identification of Plaintiffs was unconstitutionally suggestive.

         Finally, Plaintiffs allege that the County Defendants violated their constitutional right of access to the courts by obstructing their 1998 request for access to the East Cleveland Police Department's police file.[55] Plaintiffs allege that they would have been exonerated earlier if the County Defendants had not wrongly interfered with their access to public records.

         II. Legal Standard

         Summary judgment is appropriate where the evidence submitted shows “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.”[56] The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party's case.[57] A fact is material if its resolution will affect the outcome of the lawsuit.[58]

         The moving party meets its burden by “informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact.”[59] However, the moving party is under no “express or implied” duty to “support its motion with affidavits or other similar materials negating the opponent's claim.”[60]

         Once the moving party satisfies its burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.[61] It is not sufficient for the nonmoving party merely to show that there is some existence of doubt as to the material facts.[62] Nor can the nonmoving party “rest upon the mere allegations or denials of the adverse party's pleading.”[63]

         In deciding a motion for summary judgment, the court views the factual evidence and draws all reasonable inferences in favor of the nonmoving party.[64] “The disputed issue does not have to be resolved conclusively in favor of the nonmoving party, but that party is required to present significant probative evidence that makes it necessary to resolve the parties' differing versions of the dispute at trial.”[65] Ultimately, the Court must decide “whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”[66]

         On cross motions for summary judgment, “the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.”[67]

         III. Analysis

         A. County Defendants' Motion for Summary Judgment

         The County Defendants argue that they are entitled to absolute immunity, or in the alternative, qualified immunity.

         1. Plaintiffs' Conceded Claims

         As an initial matter, Plaintiffs do not contest any of their claims against the County Defendants except for their access to courts claim.[68]

         2. Absolute Immunity

         Government officers are absolutely immune from suit when they perform functions “intimately associated with the judicial phase of the criminal process.”[69] This immunity extends to a prosecutor who “acts ‘within the scope of his duties in initiating and pursuing a criminal prosecution.'”[70] The party claiming immunity has the burden of proving that defense.[71]

         The Sixth Circuit utilizes a functional approach to determine whether a prosecutor's actions receive absolute immunity.[72] Under this approach, the Court looks “to ‘the nature of the function performed, not the identity of the actor who performed it' when assessing whether conduct is prosecutorial, and thus absolutely protected.”[73]

         Courts have previously found that absolute immunity applies to functions including: appearing in court to support an application for a search warrant; presenting evidence at a probable cause hearing; preparing and filing documents to obtain an arrest warrant; evaluating and presenting evidence at trial or before a grand jury; and preparing witnesses for trial, or even eliciting false testimony from a witness.[74] Absolute immunity shields these actions, even if done maliciously, to serve the broader “policy of protecting the judicial process.”[75]

         But prosecutors do not receive absolute immunity for every action that they take. When a prosecutor performs an investigative or administrative function, only qualified immunity is available.[76]

         For example, giving police legal advice during a pretrial investigation, [77] conspiring to fabricate evidence before convening a grand jury, [78] making false statements at a press conference, [79] or “acting as a complaining witness by making sworn statements to the court in support of a criminal complaint, ” are all actions that can only receive qualified immunity.[80]

         Ultimately, the “critical inquiry” for absolute immunity in the Sixth Circuit is “how closely related is the prosecutor's challenged activity to his role as an advocate intimately associated with the judicial phase of the criminal process.”[81] For this reason, courts must “identify precisely the wrongful acts” a prosecutor has allegedly done and “classify those acts according to their function.”[82]

         Here, Defendants Naiman and Marino, both Cuyahoga Prosecutor's Office prosecutors, sent a letter to the East Cleveland Police Department and the City of East Cleveland regarding a public records request received by the City of East Cleveland.[83] They allegedly did this at Defendant Dunn's request. That public records request sought the East Cleveland Police Department's file on the Plaintiffs' case.[84]

         Naiman and Marino's letter stated that it was their position that the police file was not a public record and therefore that “any release could constitute a wilful [sic] violation of the law.”[85] The letter went on to “direct[]” the city to turn over the entire file and “any and all copies [of the file] which exist elsewhere” to the Cuyahoga Prosecutor's Office “forthwith.”[86]

         At the time Defendants sent this letter, the trial and direct appeals of all three Plaintiffs were completed, and no Plaintiff had filed a petition for post-conviction relief. There was no ongoing litigation involving Plaintiffs. Indeed, if any future litigation involving the file happened, Plaintiffs, as opposed to the Cuyahoga Prosecutor's Office, had to initiate it.

         Plaintiff Wheatt's attorney made the public records request as part of an investigation to support potential post-conviction relief.[87] Defendant Naiman was told by an East Cleveland police officer that the mayor of East Cleveland was going to turn over the file to one of Plaintiffs' mothers.[88]

         According to Defendant Naiman, her interpretation of State ex rel. Steckman v. Jackson, [89]motivated the position she and Defendant Marino took in the letter.[90] She states that she believed that the public records request for the police file was an impermissible attempt to skirt the criminal discovery rules.

         As an initial matter, the County Defendants spend a significant amount of words in their summary judgment motion arguing that Defendant Naiman's interpretation of Steckman was correct. It was not.

         Steckman held that police files qualified as an exemption from the Ohio public records law. For that reason, a government entity that received a public records request was not required to turn over a police file. Steckman, however, said nothing about whether a city could turn over a public records request for a police file if the political subdivision wanted to do so. Steckman dealt solely with the question of whether a petitioner whose records request was denied could use the mandamus remedy to force a government entity to turn over those files.[91]

         Even when an Ohio appellate court extended Steckman to hold that a petitioner who obtained materials through a public records request could not use those materials to support post-conviction relief, there was no indication that the government entity erred by voluntarily turning over those files.[92] Therefore, Steckman did not prevent East Cleveland from voluntarily releasing the police file at issue here.

         Regardless of the correctness of their interpretation of Steckman, the County Defendants are not entitled to absolute immunity for their actions. Numerous factors counsel in favor of finding these actions outside the scope of absolute immunity.

         First, absolute immunity applies only when a prosecutor acts as an advocate for the state within the judicial phase of the criminal process. Here, Defendants acted wholly outside of the judicial phase. Their actions therefore would not be “subjected to the ‘crucible of the judicial process.'”[93]

         When the city received the request for the police file, there were no ongoing judicial proceedings. Additionally, the Cuyahoga Prosecutor's Office had no ability to initiate further proceedings in this case. The Plaintiffs complain only about Defendants' actions during Plaintiffs' post-conviction investigation.

         Beyond this, Cuyahoga County had no apparent interest in defeating the Plaintiffs' public records request. Cuyahoga County and East Cleveland are separate political subdivisions and Cuyahoga County had no reason to interfere with that city's police file records. Defendant Marino has stated that the Cuyahoga Prosecutor's Office kept its own copies of the files from cases it prosecuted, and that the prosecutors' files generally contained all of the information in the police file.[94] The prosecutors' only apparent interest was to defeat review of the facts supporting the prosecution.

         While no case is directly on point, the Court finds Burns v. Reed instructive.[95] There, the Court held that prosecutors do not receive absolute immunity when they provide legal advice to police during the initial investigatory phase of a criminal proceeding.[96]

         In Burns, the Court held that prosecutors had no absolute immunity. Instead, prosecutors were limited to seeking qualified immunity for four reasons. First, there was no common law history of absolute immunity for prosecutors providing legal advice to police. Second, in the scenario in Burns there was minimal risk of vexatious litigation against prosecutors.[97]

         Third, qualified immunity was sufficiently strong to avoid discouraging prosecutors from performing their duties, and it would be “incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice.”[98] Finally, there was a minimized chance that the judicial process would be available to “restrain out-of-court activities by a prosecutor that occur prior to the initiation of a prosecution.”[99]

         The same reasoning suggests that Defendants Marino, Naiman, and Dunn should not receive absolute immunity. As an initial matter, no party suggests that there is a relevant common law history of absolute immunity.

         There is also minimal risk of vexatious litigation. Neither party has presented any evidence suggesting that the Cuyahoga Prosecutor's Office, either by law or by custom, provided legal advice to either East Cleveland or any other municipalities on how to deal with public records requests in any instance but this one. Both East Cleveland and Cuyahoga County are independent Ohio political subdivisions. Neither reports to nor controls the other.[100]

         Indeed, in their combined fifty-eight years of prosecutorial experience, neither Naiman nor Marino could remember sending anything like this letter before or after this instance.[101] The Court finds that litigation arising from this seemingly once-in-a-career scenario would not subject the judicial process to such intense “harassment and intimidation associated with litigation” that it merits extending absolute immunity.[102]

         Additionally, qualified immunity is sufficiently strong to protect prosecutors who face scenarios like this one. As the Supreme Court noted in Malley v. Briggs, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”[103] The rarity of this situation suggests that qualified immunity would shield a wide range of responses, as prosecutors “of reasonable competence could disagree” on what action (if any) a prosecutor should take.[104]

         Finally, and perhaps most importantly, there were no active judicial proceedings when Defendants sent this letter. As previously mentioned, all direct appeals were finished, and no post-conviction proceedings had begun. As such, the judicial process would not “restrain” Defendants' “out-of-court activities” that were unrelated to a legitimate prosecutorial function.[105]

         This is especially so because neither Defendant Naiman nor Defendant Marino had any involvement in the trial, direct appeal, or post-conviction phases of Plaintiffs' cases. Defendants also did not consult the case's trial or post-conviction prosecutors about this letter. Defendants only connection to Plaintiffs arose because of this letter.

         Indeed, Defendants Naiman and Marino give no plausible explanation why they interjected themselves into Plaintiffs public records request. All of these facts further minimized the chances of the judicial process reviewing Defendants' legitimate prosecutorial actions.

         For these reasons, Defendants are not entitled to absolute immunity.

         2. Qualified Immunity

         Government officers are entitled to qualified immunity for their actions unless plaintiffs satisfy a two-prong test. First, plaintiffs must show that “the facts alleged show the officer's conduct violated a constitutional right.”[106] Second, plaintiffs must prove that the violated constitutional right was “clearly established.”[107] Courts do not have to decide these prongs in a specific order.[108]

         a. Whether Plaintiffs' Right to Access the Courts Was Clearly Established in 1998

         Courts must take care not to define “clearly established” at a high level of generality.[109]For a right to be clearly established, “existing precedent must have placed the statutory or constitutional question beyond debate.”[110] There does not, however, need to be “a case directly on point.”[111]

         Plaintiffs allege that Defendants violated their clearly established right to access the courts. They allege a backwards-looking access to courts claim, which means that Defendants took some deceptive action in the past that obstructed their ability to vindicate their rights in state court.[112]

         As evidence that this right was clearly established before 1998, when Plaintiffs' counsel issued its East Cleveland records request, Plaintiffs point to Swekel v. City of River Rouge, a 1997 Sixth Circuit decision.[113] In Swekel, a woman accused a number of government defendants of violating her right to access the courts by “covering-up for a high-ranking police officer and his son.”[114]

         The Sixth Circuit stated that “‘[i]t is beyond dispute that the right of access to the courts is a fundamental right protected by the Constitution.'”[115] Beyond this general statement, the Sixth Circuit also concluded that “if a party engages in actions that effectively cover-up evidence and this action renders a plaintiff's state court remedy ineffective, they have violated his right of access to the courts.”[116]

         As such, at the time of the events at issue here, the County Defendants should have been aware that taking an action that obstructed Plaintiffs' access to adequate state court remedies was a constitutional violation; that the Sixth Circuit considered that prosecutors and police officers alike could violate this right;[117] and that this right was firmly established in the Sixth Circuit. The Court therefore finds that Plaintiffs' right to access the courts was clearly established by 1998.

         b. Whether Defendants Violated Plaintiffs' Clearly Established Right

         When determining whether a constitutional violation occurred on a motion for summary judgment, the Court “assume[s] the truth of all record-supported allegations by the non-movant.”[118] If, in this favorable light, a plaintiff's allegations would support a constitutional violation, dismissal on qualified immunity grounds is improper.[119]

         In order to sustain their access to courts claim, Plaintiffs must prove that they had: “(1) a non-frivolous underlying claim;” that “(2) obstructive actions [were taken] by state actors;” that those obstructive actions caused “(3) substantial prejudice to the underlying claim that cannot be remedied by the state court . . .; and (4) a request for relief which the plaintiff would have sought on the underlying claim and is now otherwise unattainable.”[120]

         Regarding the first part of this test, the parties do not dispute that Plaintiffs' underlying Brady claim was non-frivolous. The belatedly disclosed East Cleveland police investigatory files ultimately freed Plaintiffs from prison.

         Similarly, Plaintiffs have provided sufficient evidence to defeat summary judgment on the third prong, whether Defendants' actions substantially prejudiced their underlying claim. As previously noted, Plaintiffs sought post-conviction relief for years, but were only successful after the police file at issue was disclosed.[121]

         Defendants argue that Plaintiffs could have challenged the denial of the public records request in 1998. Essentially, Defendants argue that even if they were a but-for cause of Plaintiffs' injury, Plaintiffs' counsel's failure to challenge the 1998 public records request denial was an intervening act that cut off the chain of proximate causation.

         When viewing the evidence in the light most favorable to Plaintiffs, this argument fails because “the § 1983 proximate-cause question [is] a matter of foreseeability.”[122] Ultimately, a court must ask “whether it was reasonably foreseeable that the complained of harm would befall the § 1983 plaintiff as a result of the defendant's conduct.”[123]

         Defendants knew that someone sought this police file in order to investigate a potential wrongful conviction.[124] It follows that if East Cleveland followed the prosecutors' directive to make the investigatory files unavailable, Defendants would either delay Plaintiffs obtaining relief, or prevent relief altogether. Defendants Dunn, Naiman and Marino could foresee that they would delay Plaintiffs' access to the Brady material. Therefore, there is sufficient evidence for a jury to conclude that continued imprisonment was a foreseeable consequence of Defendants' actions.

         Plaintiffs have also defeated Defendants' motion for summary judgment on the fourth prong. But for Defendants' conversion of the East Cleveland investigatory records, Plaintiffs argue, they would not have suffered an additional seventeen years imprisonment.

         Plaintiffs show that they sought post-conviction relief for years, but only obtained a new trial once East Cleveland released the police file. Because they cannot travel back in time to secure their earlier release, they instead seek damages.[125] This is “a request for relief [that] is now otherwise unattainable.”[126]

         The County Defendants argue that because Plaintiffs seek damages as a remedy for both their access to courts claim and their other constitutional tort claims, the access to court claim must fail.[127] Plaintiffs do seek damages both on their access to courts claim against the County Defendants, and on their other claims against the City Defendants. That is not, however, a sufficient reason to dismiss the access to courts claim as to the County Defendants.

         The reasons for this are two-fold. First, the County Defendants' actions constituting a denial of access to the courts were sufficiently distinct from the City Defendants' actions that led to Plaintiffs' original imprisonment. This means that the damage flowing from this denial of access is distinct from the damage caused by the City Defendants' other allegedly unconstitutional actions.

         Second, and relatedly, Plaintiffs have no alternate claim that could entitle them to relief for the County Defendants' actions against them. No court has said that a plaintiff fails to state a claim for access to the courts simply because some other government agent has also violated the plaintiff's constitutional rights in a separate, albeit related, episode.

         The parties primarily dispute the second prong, whether Defendants' actions were obstructive. Viewing the record evidence in the light most favorable to Plaintiffs, the County Defendants' actions were obstructive, and the County Defendants took those actions intending to obstruct Plaintiffs' access to courts.[128]

         Plaintiffs have presented evidence that would allow a reasonable jury to find that Defendants Dunn, Naiman, and Marino gave East Cleveland the 1998 police file demand letter intending to obstruct Plaintiffs' access to the courts. This evidence includes Naiman and Marino's lack of involvement with the criminal case; the Cuyahoga Prosecutor's Office letter's demand to turn over all copies of the file, seemingly in violation of Ohio statutory law;[129] and Marino's recent admission that East Cleveland's investigatory file production to Plaintiffs would not be a “willful violation of the law.”[130] Additionally, a reasonable jury could find that Defendant Dunn was the person from the East Cleveland Police Department who called Naiman and instructed her to write the letter or take some other similarly obstructive action.[131] These circumstances surrounding the letter could suggest that Defendants' purpose was obstruction, and not the lawful protection of evidentiary procedures that Defendant Naiman claims.

         A number of additional factors weigh against finding qualified immunity. Most centrally, after the direct appeal, Cuyahoga County had no federal habeas case responsibility for Plaintiffs' cases. The Ohio Attorney General represents Ohio with regard to all federal post-conviction cases.[132]

         Cuyahoga County would defend state court post-conviction petitions, as they did here. However, Plaintiffs had not filed any state or federal post-conviction petitions when Naiman told East Cleveland to give all police investigation files to the Cuyahoga Prosecutor's Office. Even beyond this, Naiman had no personal responsibility for any ongoing state post-conviction cases.

         A public official performing a discretionary function enjoys qualified immunity in a civil action for damages, provided his or her conduct does not violate clearly established federal statutory or constitutional rights of which a reasonable person would have known.[133] But, qualified immunity protects “only actions taken pursuant to discretionary functions.”[134]

         To satisfy the discretionary function requirement, the government official must have been performing a function falling within his legitimate job description.[135] For example, in In re Allen, the Fourth Circuit looked to whether a reasonable official in the defendant's position would have known that his actions were beyond the scope of his official duties.[136]

         Against this backdrop, Defendant Naiman's injection into Plaintiffs' public records request was beyond her or the Cuyahoga Prosecutor's Office's duties.[137] The intercession to block Plaintiffs' access to records only marginally related to these Defendants' official duties.

         For these reasons, this Court finds the County defendants are not entitled to qualified immunity. While they can argue that their acts did not proximately damage Plaintiffs, the Court finds they are neither absolutely immune nor qualifiedly immune.

         For these reasons, the Court DENIES the County Defendants' motion for summary judgment.

         B. Plaintiffs' Motion for Partial Summary Judgment

         1. Access to Courts Claim against Defendant Naiman

         Plaintiffs seek summary judgment against Defendant Naiman on their access to courts claim. Because the Court decides that Defendant Naiman is entitled to neither absolute nor qualified immunity, [138] the Court only addresses the merits of Plaintiffs' access to courts ...

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