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Devine v. Sevel

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

May 16, 2018

Dean A. Devine, Administrator of the Estate of Nicole M. Devine, Dec'd, Plaintiff,
Officer Michael Sevel, et al, Defendants.



         This matter is before the Court on the Defendants' Motion for Summary Judgment. (ECF #44).[1]For the reasons that follow, Defendants' Motion for Summary Judgment is granted.

         FACTS [2]

         Plaintiff 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 l)[3]

         The 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)

         Shortly 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).

         Officer 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.

         Officer 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)

         Officer 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).

         The 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, 27, 12-13).

         After 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. at 19-20)

         Mr. 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).

         At some 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.


         Summary7 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 material fact.

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).

         Summary 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 ...

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