United States District Court, N.D. Ohio, Eastern Division
Dean A. Devine, Administrator of the Estate of Nicole M. Devine, Dec'd, Plaintiff,
Officer Michael Sevel, et al, Defendants.
C. NUZENT UNITED STATES DISTRICT JUDGE
matter is before the Court on the Defendants' Motion for
Summary Judgment. (ECF #44).For the reasons that follow,
Defendants' Motion for Summary Judgment is granted.
Dean Devine. as administrator of his daughter Nicole
Devine's estate, filed this action in the Court of Common
Pleas for Lake County, Ohio against the City of Willoughby,
five individual police officers and 10 un-named John Does
alleging federal claims under 42 U.S.C. § 1983 for
violations of the State Created Danger Doctrine; a
supervisory liability claim against Defendant Lt. Ashton and
a Municipal Monell liability claim, along with several state
law claims. Defendants removed the action to this Court on
December 14. 2016. Plaintiff voluntarily dismissed individual
Defendant Sergeant Dan Pitts on June 19, 2017 (ECF #16) and
in response to Defendants' Motion to Summary Judgment
voluntarily withdrew his state law claims and his claim for
Municipal liability. Thus, the only claims remaining are
Plaintiffs claims against individual Defendants Officer
Michael Sevel, Officer David A. Burrington, Officer Charles
A. Krejsa and Lieutenant Richard T. Ashton for violations of
42 U.S.C. § 1983 pursuant to Plaintiffs State-Created
Danger and supervisory liability claims. (See ECF #55 at
events at issue here occurred on Saturday night. November 22,
2014 and into the morning of November 23, 2014. Nicole Devine
and her boyfriend of approximately four years, Dominic
Julian, attended a fundraiser for a friend with cancer at a
bar called The Boardwalk. After approximately four hours, Ms.
Devine and Mr. Julian left the fundraiser and stopped at
another bar before going to a party at a friend's house
on Adkin's Road. Both Ms. Devine and Mr. Julian were
drinking beer throughout the night. Ms. Devine left the party
when Mr. Julian and another man began shouting at each other.
She attempted to drive her father's car, which was
blocked in by another car, and ended up crashing into the
other car. At that point she exited the car and began walking
the two miles home to Fox Run Apartments. Mr. Julian walked
after her. At that point, Plaintiff, said he was not
concerned for Ms. Devine's safety when she walked away
from the party with Mr. Julian. (Devine Dep. at 45-46)
thereafter, around 12:30 a.m., the police responded to a call
of a disturbance on Adkins Road. The narrative report of the
dispatch stated that "Male just hit a female. Caller
states the male was wearing a flannel shirt and female is
yelling 'get off me/ They are closer to Lost Nation,
about two streets down, north side of the street. Squad call.
No. transport." (Burrington Dep. 17-19 and Exhibit 1)
The narrative report was written by one of the dispatchers,
and although the Willoughby Officers did receive some of the
information via radio dispatch, they did not receive all of
the information. (See ECF #52, Gammier Dep at 29, 45; ECF
#53, Thomas Dep at 18) At the time that the Officers
responded to the call, the incident was reported as a
disturbance call. (Krejsa Dep at 5) Officers Sevel,
Burrington, Krejsa and Lt. Ashton responded to the dispatch.
Lt. Ashton was the first to arrive on scene. He states that
when he arrived he observed a woman walking about five feet
in front of a male. The female indicated that she did not
want to speak to Lt. Ashton and continued walking. Lt. Ashton
told Mr. Julian to put his hands on the front of the squad
car. He noticed that Mr. Julian did not appear disheveled,
and his clothes were not dirty or torn. Lt. Ashton examined
his hands and knuckles which did not appear to be bruised or
bloody. In other words, he noted that there was no physical
evidence that Mr. Julian had been in a fight. (Ashton Dep.
9-10). Lt. Ashton stated that similarly, from his initial
impression from his observation of Ms. Devine, it did not
appear that she had been involved in a recent altercation
because she was not disheveled or muddy, although there was
dried blood around her nose. (Id. at 10).
Burrington arrived on scene next, and like Lt. Ashton, tried
to talk to Ms. Devine who walked by him. He also noticedihe
dried blood under her nose. Joining Lt. Ashton, Officer
Burrington asked Mr. Julian if he had any weapons on him. Mr.
Julian told him he had a knife.
Bunington patted Mr. Julian down, felt bulges and asked Lt.
Ashton who was wearing gloves, to reach in. Lt. Ashton pulled
out the knife and a bag of marijuana. (Burrington Dep. 7,
10-11). A small spot of blood was found on the left rear
pocket of Mr. Julian's pants. Mr. Julian told Officer
Burrington that he had wiped it off Ms. Devine's face.
(Id. at 23) Mr. Julian denied hitting Ms. Devine and
said he did not know why she had blood under her nose.
(Id.) Officer Burrington said that Mr. Julian did
not appear intoxicated but did appear agitated based on his
demeanor with the Officers, his short responses to questions,
"kind of a little bit cocky." (Id. at 20)
Officer Burrington contacted Jake Hardy, the man who made the
911 call to ask him if Mr. Julian was the male that struck
the female. (Id. at 18, 26) Officer Burrington said
that Mr. Hardy could not identify the male because his
vantage point was not good enough and denied seeing him hit
her. (Id. at 18)
Sevel was next on the scene and as he saw Lt. Ashton and
Officer Burrington talking to Mr. Julian, he stopped Ms.
Devine and spoke with her. (Sevel Dep at 6) Officer Sevel
observed the dried blood around Ms. Devine's nose,
smelled alcohol coming from her person and noticed some
slurring in her speech. She did not appear to be intoxicated
but clearly had been drinking. (Id. at 11 -12). Ms.
Devine told Officer Sevel that she had been at a party and
had gotten into a scuffle with someone or had broken up a
fight between two males at the party. (Id. at 10,
28) Officer Sevel said that according to both Mr. Julian and
Ms. Devine there was no physical altercation between them.
(Id. at 31). Ms. Devine repeatedly told the Officers
that nothing happened and she wanted to go home.
(Id. at 10). Officer Krejsa was last to arrive on
scene as backup. When he arrived on scene he saw Officer
Sevel speaking with Ms. Devine and Mr. Julian seated in the
back of a police car. (Krejsa Dep. at 6, 12 -13).
rescue squad was called to evaluate and attend to Ms. Devine.
Lt James Ulle, Firefighter/EMT Zachary Sitz and
Firefighter/Paramedic James Jerson manned the Rescue Squad.
Ms. Devine was escorted inside the Rescue Squad and was given
a 4x4 and a bottle of sterile water to wipe the dried blood
from her face. The Firefighter's report states that Ms.
Devine was alert and oriented x3 and admitted to use of
alcohol. When asked how she received her injury, she told the
Firefighters that she stepped between two males who were
fighting at a party. The report notes that there were no
visible injuries to Ms. Devine's face such as cuts and
bruises. (Ulle Dep at 54) Ms. Devine refused repeated offers
to take her to a hospital. She told the Firefighters that she
was fine and just wanted to go home and/or she wanted to go
home with her father. Ms. Devine signed the Willoughby Fire
Department Release Form and exited the Rescue Squad. (Ulle
Dep., Ex. l, at 45-46). At some point during the time that
Ms. Devine was in the Rescue Squad, Officers Burrington and
Sevel joined them in the Squad. Ms. Devine repeatedly told
the Officers that nothing happened and that she wanted to go
home. Officer Burrington said that Ms. Devine said she wanted
to go home with Mr. Julian and she denied that Mr. Julian had
hit her. (Sevel Dep at 10, 13, 28, 36; Burrington Dep at 12,
Ms. Devine exited the Rescue Squad, Officer Krejsa asked her
if there was another location, other than the Fox Run
apartment where she could go. Ms. Devine did not answer
Officer Krejsa. (Krejsa Dep at 13) Officer Krejsa stated that
while Ms. Devine was being treated in the Rescue Squad, a
member of the Fire Department approached him while he was
sitting in his squad car and told him that Ms. Devine had
told the Firefighters that she suffered her injury at a
residence while trying to separate two males who were in a
fight. (Id. at 18) Officer Krejsa also stated that
Ms. Devine insisted on talking to Mr. Julian and he told her
that she would need to il speak to Officer
Sevel because Mr. Julian was seated in a squad car.
(Id. at 19) At some point Officer Krejsa must have
spoken to Mr. Julian because he states that Mr. Julian told
him that he was trying to be a peacemaker and a good guy by
following Ms. Devine after she walked away from the party to
make sure she was safe because she was drunk. (Id.
Julian received a citation for the marijuana that had been
found in his pocket. After the Officers conferred, they
concluded that they could not determine that Mr. Julian had
struck Ms. Devine. Both Mr. Julian and Ms. Devine denied that
he had hit her. Further, it was determined that Ms. Devine
and Mr. Julian lived together and that they would be
transported home. (Sevel Dep at 31-32) Mr. Julian and Ms.
Devine were transported home to Fox Run Apartments by Officer
Sevel. (Id.) During the short drive to Fox Run, Mr.
Julian said he was upset that he was receiving a citation and
seemed agitated. (Id. at 33-34) Ms. Devine was
relaxed and carefree. (Id. at 33) When they pulled
into the apartment complex, Mr. Julian told Officer Sevel
that Ms. Devine seemed scared. (Id. at 34) Officer
Sevel had a private conversation with Ms. Devine to check if
anything was wrong. Consistent with her statements throughout
the encounter. Ms. Devine told Officer Sevel that she was
fine and wanted to go to bed. (Id. at 34-36) At that
point Ms. Devine went inside and Officer Sevel and Mr. Julian
waited outside for Officer Burrington to arrive with a copy
of Mr. Julian's citation. Once Mr. Julian had been
provided with a copy of the citation, Officer Sevel and
Officer Burrington left Fox Run. (Burrington Dep. at Ex. 1
? p. 6- Investigative Report of Sevel; P. 8 -
Investigative Report of Burrington).
point after the police left Ms. Devine and Mr. Julian off at
Fox Run, Mr. Julian killed Ms. Devine. The Willoughby Police
Department investigated the death and Mr. Julian was charged
with murder and felonious assault. Mr. Julian eventually pled
guilty to the murder charge and the felonious assault charge
was dismissed. He was sentenced to fifteen years to life and
is currently serving that sentence.
judgment is appropriate when 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." FED. R. CIV. P. 56(c). 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
Celotex v. Catrett, 477 U.S. 317, 323 (1986) (citing
FED. R. CIV. P. 56(c)). A fact is "material" only
if its resolution will affect the outcome of the lawsuit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Determination of whether a factual issue is
"genuine" requires consideration of the applicable
evidentiary standards. The court will view the summary
judgment motion in the light most favorable to the party
opposing the motion. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
judgment should be granted if a party who bears the burden of
proof at trial does not establish an essential element of
their case. Tolton v. American Biodyne, Inc., 48
F.3d 937, 941 (6th Cir. 1995) (citing
Celotex, 477 U.S. at 322). Accordingly, "[t]he
mere existence of a scintilla of evidence in support of the
plaintiffs position will be insufficient; there must be
evidence on which the jury could reasonably find for the
plaintiff." Copeland v. Machulis,57 F.3d 476,
479 (6th Cir. 1995) (citing Anderson, 477
U.S. at 252). Moreover, if the evidence presented is
"merely colorable" and not "significantly
probative, " the court may decide the legal issue and
grant summary judgment. Anderson, 477 U.S. at 249-50
(citations omitted). In most civil cases involving summary