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Abdelhaq v. City of Lakewood

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

May 2, 2018

FRED ABDELHAQ, Plaintiff,
v.
THE CITY OF LAKEWOOD et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          WILLIAM H. BAUGHMAN, JR. UNITED STATES MAGISTRATE JUDGE

         Introduction

         Before me, [1] in this federal question matter wherein Fred Abdelhaq asserts that Alan Benno and the City of Lakewood violated several federal and state provisions[2] during the citation and prosecution of Abdelhaq, are cross-motions for full or partial summary judgment.[3] The court has jurisdiction over federal claims under 28 U.S.C. § 1331, with discretionary supplemental jurisdiction over related state law claims under 28 U.S.C. § 1367. The relevant parties have responded in opposition to the various summary judgment motions, [4] and replies have been filed to the responses.[5] For the reasons that follow, the defendants' motion for summary judgment will be granted, and Abdelhaq's motion for summary judgment will be denied in full.

         Facts

         The necessary, undisputed facts will be briefly stated here, with relevant facts being discussed further in the analysis.

         On September 9, 2013, Abdelhaq arrived at the location where his sister, Samira Zeitoun, had her vehicle breakdown.[6] Officer Beno, had responded to a report of the broken down car, which was located on a busy exit ramp on Interstate 90.[7] Zeitoun called Abdelhaq and her other sister and had notified the insurance company, who were to send a tow truck.[8]After approximately 15 minutes of waiting, Beno called the police department's contracted tow truck company, Kufner Towing.[9]

         Abdelhaq asked Beno for permission to speak with the tow truck operator in order to attempt to arrange a private tow.[10] Beno acquiesced, and Abdelhaq spoke to the tow truck driver, but the conversation turned into an argument, [11] which continued during several back and forth encounters.[12] Abdelhaq then took out his cellphone in order to videotape the situation.[13] The tow truck operator made an obscene gesture towards Abdelhaq during the course of the argument.[14]

         When Kufner Towing-which had been called by Beno-arrived, Zeitoun's sister's van was parked in front of Zeitoun's car.[15] Officer Beno asked Abdelhaq to have the sister move her car.[16] Abdelhaq promptly had the car moved.[17] Zeitoun became unruly during the course of the incident, and three officers successfully restrained her after a brief altercation.[18]During this altercation, Beno and Abdelhaq were engaged in a conversation, the nature of which is disputed by both parties.[19] During this continued altercation, Officer Beno instructed Abdelhaq not to leave.[20] Beno asked Abdelhaq if he had any weapons on his person, which Abdelhaq responded affirmatively to, indicating he had a knife used for his job.[21] Beno then searched Abdelhaq.[22] Beno cited, but did not arrest, Abdelhaq for obstruction of justice and confiscated his phone to preserve the video for evidence.[23]

         Procedural History

         Abdelhaq was convicted of obstruction of official business by a jury in the Lakewood Municipal Court.[24] The court of appeals later overturned his conviction.[25]

         Adbelhaq filed suit in State Court which the defendants' removed into this court.[26] Abdelhaq presents a variety of federal claims under 42 U.S.C. § 1983 and various state law claims.[27] The complaint was amended twice, resulting in the following claims:

Count One: §1983 claim premised on an alleged violation of Plaintiff's First Amendment Right to film police officers against Officer Beno and the City of Lakewood;
Count Two: §1983 claim premised on alleged retaliation in violation of the First Amendment by Officer Beno and the City of Lakewood;
Count Three: §1983 claim alleging a violation of Plaintiff's Fourth Amendment right to be free from unreasonable search and seizure against Officer Beno and the City of Lakewood;
Count Four: §1983 claim alleging a violation of Plaintiff's Fourteenth Amendment right to equal protection against Officer Beno and the City of Lakewood;
Count Five: §1983 Monell claim against City of Lakewood;
Count Six: state law claim for False Arrest against Officer Beno;
Count Seven: §1983 claim for False Arrest against Officer Beno;
Count Eight: state law claim for Malicious Prosecution against Officer Beno and the City of Lakewood;
Count Nine: §1983 claim for Malicious Prosecution against Officer Beno and the City of Lakewood;
Count Ten: state law claim for False Imprisonment against Officer Beno; and;
Count Eleven: state law claim for Battery against Officer Beno.[28]

         The defendants' filed a motion for summary judgment, [29] and the plaintiffs filed a motion for partial summary judgment.[30] The plaintiffs motion was for summary judgment on all claims except for claim seven.[31] Each filed an opposition to the other's motion.[32] Each party filed a response to the opposition.[33]

         Analysis

         A. Standard of review

         Summary judgment is appropriate where the court is satisfied “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.”[34] The burden of showing the absence of any such “genuine issue” rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of 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 affidavits, if any, ' which it believes demonstrates the absence of a genuine issue of material fact.[35]

         A fact is “material” only if its resolution will affect the outcome of the lawsuit.[36] Determination of whether a factual issue is “genuine” requires consideration of the applicable evidentiary standards.[37] The court will view the summary judgment motion “in the light most favorable to the party opposing the motion.”[38]

         Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of his case.[39] Accordingly, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”[40] Moreover, if the evidence presented is “merely colorable” and not “significantly probative, ” the court may decide the legal issue and grant summary judgment.[41] In most civil cases involving summary judgment, the court must decide “whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.”[42] However, if the non-moving party faces a heightened burden of proof, such as clear and convincing evidence, it must show that it can produce evidence which, if believed, will meet the higher standard.[43]

         Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmover.[44] The nonmoving party may not simply rely on its pleadings, but must “produce evidence that results in a conflict of material fact to be solved by a jury.”[45] The text of Fed.R.Civ.P. 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

         “In other words, the movant can challenge the opposing party to ‘put up or shut up' on a critical issue.”[46]

         Though parties must produce evidence in support of and in opposition to a motion for summary judgment, not all types of evidence are permissible. The Sixth Circuit has concurred that “‘it is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary judgment.'”[47] Rule 56(e) also has certain, more specific requirements:

[it] requires that affidavits used for summary judgment purposes be made on the basis of personal knowledge, set forth admissible evidence, and show that the affiant is competent to testify. Rule 56(e) further requires the party to attach sworn or certified copies to all documents referred to in the affidavit. Furthermore, hearsay evidence cannot be considered on a motion for summary judgment.[48]

         However, the district court may consider evidence not meeting this standard unless the opposing party affirmatively raises the issue of the defect. The burden is on the opposing party to object to ...


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