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Przybysz v. City of Toledo

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

January 12, 2018

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

          ORDER

          JAMES G. CARR SR. U.S. DISTRICT JUDGE.

         This is a 42 U.S.C. § 1983 dispute over the death of Thomas Przybysz, who was murdered after agreeing to act as an informant for the Toledo Police Department. Scott Warnka, Thomas' cocaine dealer, realized Thomas had set him up when unnamed officers told Warnka “at the scene of his arrest” that he had “just sold [narcotics] to an undercover cop.”

         Instead of identifying the offending officers through discovery, counsel for Marcia Przybysz (Thomas' mother and personal representative of his estate) sought to hold Police Sergeant Karrie Williams individually liable for Thomas' death, despite the dearth of evidence connecting her to the disclosure. They also pursued a Monell failure-to-train claim against the City without explaining how a year of on-the-job training in the vice unit and an “undercover survival” course failed to prepare Sgt. Williams for her role in the Warnka investigation.[1]

         For reasons expressed in an earlier opinion, I concluded, after lengthy and detailed consideration, that Przybysz failed to demonstrate a violation of her son's constitutional rights and likewise failed identify a constitutional deficiency in the City's training policies. And because her Ohio-law wrongful death action was equally lacking in merit, I denied her motion for summary judgment, and granted summary judgment in favor of defendants on plaintiff's claims in their entirety. See Przybysz v. City of Toledo, 2017 WL 4654387, *8-14 (N.D. Ohio).

         Now pending is Przybysz's motion to alter or amend my judgment see Fed. R. Civ. P. 59(e), which defendants oppose. (Docs. 63, 64). On initial review, I concluded plaintiff's motion was, at worst, an attempt to “relitigate previously considered issues, ” Keweenaw Bay Indian Cmty. v. United States, 940 F.Supp. 1139, 1141 (W.D. Mich. 1996), and at best, an effort to “raise arguments which could, and should, have been made before judgment issued.” Sault St. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Neither is a proper basis for a motion to alter or amend.

         Accordingly, in an email dated December 27, 2017, I informed the parties that if a litigant submits a frivolous motion for reconsideration and/or to alter or amend an earlier judgment, I may sanction the filing counsel pursuant to Fed.R.Civ.P. 11 in the amount of $ 2, 000 or in the amount of attorney's fees the opposing party incurred in responding to the motion, whichever is less.[2] See, e.g., Andersons, Inc. v. Consol, Inc., 221 F.Supp.2d 810 (N.D. Ohio 2002); Miller v. Norfolk S. Rwy., Co., 208 F.Supp.2d 851 (N.D. Ohio 2002). I further warned plaintiff's counsel that if they did not withdraw plaintiff's motion to alter or amend by January 4, 2018, I would adjudicate it consistent with this policy.

         January 4, 2018, came and went, and Przybysz's attorneys declined to withdraw her motion. For the reasons that follow, I deny plaintiff's motion to alter or amend, and sanction her counsel.

         Discussion

         I may grant Rule 59(e) motion to alter or amend the judgment only if “there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent a manifest injustice.” GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (citations omitted). Przybysz identifies none of these defects.

         As I said in my initial order, “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors” absent a special relationship or state-created danger. Przybysz, 2017 WL 4654387, at *8 (citation omitted). I explained that Sgt. Williams did not have a special relationship with Thomas because “[a]sking an individual to serve as an informant does not ‘impose' any constraint ‘on his freedom to act, '” or otherwise obligate a state actor to protect him. Id. (citation omitted).

         I also explained (at length) why, under the proofs Przybysz presented, there is no genuine issue of fact as to whether Sgt. Williams created the danger to Thomas:

Section 1983 is an individual-liability statute. Thus, “case law teaches that in order to impose individual liability upon a law officer engaging in unconstitutional misconduct, it is a plaintiff's burden to specifically link the officer's involvement to the constitutional infirmity.” Burley v. Gagacki, 834 F.3d 606, 615 (6th Cir. 2016). “Each defendant's liability must be assessed individually based on his actions, ” Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010), because each defendant “is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
Przybysz does not “specifically link” Sgt. Williams to the alleged disclosure. Even if telling Warnka that he “just sold to an undercover cop” is comparable to the “explicit[ ]” identification in Nelson [v. City of Madison Heights], 845 F.3d [695, ] 698 [(6th Cir. 2017)], there is no evidence that Sgt. Williams actually made that statement. Warnka never claimed she did.
He testified only that an unidentified “[t]hey” told him “right at the scene” that he “just sold to an undercover cop.” (Warnka Dep. at 43). “They” is not the same as Sgt. Williams. See Nichols v. Fernandez, 686 Fed.Appx. 532, 534 (9th Cir. 2017) (affirming summary judgment for individual officers where “Plaintiffs d[id] not provide evidence that ...

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