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Shafer v. Reese

United States District Court, S.D. Ohio, Western Division, Dayton

May 23, 2018

SONDA SHAFER, et al., Plaintiffs,
v.
DAVID REESE, et al., Defendants.

          Thomas M. Rose, District Judge

         REPORT AND RECOMMENDATION [1] THAT: (1) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOC. 21) BE DENIED WITH REGARD TO PRO SE PLAINTIFF'S SECTION 1983 CLAIMS ALLEGING FOURTH AMENDMENT VIOLATIONS; AND (2) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BE GRANTED WITH REGARD TO PRO SE PLAINTIFFS' REMAINING CLAIMS ALLEGING THE ALTERATION OF EVIDENCE, CIVIL CONSPIRACY, AND MUNICIPAL LIABILITY

          Michael J. Newman, United States Magistrate Judge

         This is a 42 U.S.C. § 1983 civil rights action brought by pro se Plaintiffs Steven Inskeep and Sonda Shafer against the City of Urbana, Ohio as well as Defendants David Reese, Michael Cooper, and Jason Kizer, all of whom were employed by the Urbana Police Department (“UPD”) at the time at issue in this case. This action concerns, inter alia, Defendants' allegedly warrantless entry into an apartment where both Plaintiffs resided on March 3, 2015.

         Now before the Court is Defendants' motion for summary judgment. Doc. 21. Inskeep filed a memorandum in opposition. Doc. 27. Shafer did not file a memorandum in opposition and the time for doing so has expired. The Court previously ordered Shafer to show cause why her claims should not be dismissed as a result of her failure to respond to Defendants' motion. Doc. 30 at PageID 233. Shafer filed a response to the Court's Show Cause Order, but did not directly address any of the arguments raised by Defendants. Doc. 35 at PageID 262-63. In the interest of justice, and in light of her pro se status, the undersigned assumes that Shafer joins in the arguments advanced by Inskeep. Following the filing of the memorandum in opposition, Defendants filed a reply. Doc. 34. The Court has carefully considered all of the foregoing, including all Rule 56 evidence properly submitted in support of each party's position, and Defendants' motion is now ripe for decision.

         I.

         A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Summary judgment is only appropriate ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.'” Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (quoting Fed.R.Civ.P. 56(c)). “Weighing of the evidence or making credibility determinations are prohibited at summary judgment -- rather, all facts must be viewed in the light most favorable to the non-moving party.” Id.

         Once “a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading[.]” Viergutz v. Lucent Techs., Inc., 375 Fed.Appx. 482, 485 (6th Cir. 2010) (citation omitted). Instead, the party opposing summary judgment has a shifting burden and “must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial.” Id. (citation omitted). Failure “to properly address another party's assertion of fact as required by Rule 56(c)” could result in the Court “consider[ing] the fact undisputed for purposes of the motion.” Fed.R.Civ.P. 56(e)(2).

         Finally, “there is no duty imposed upon the trial court to ‘search the entire record to establish that it is bereft of a genuine issue of material fact.'” Buarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 (6th Cir. 1992) (citations omitted). Instead, “[i]t is the attorneys, not the judges, who have interviewed the witnesses and handled the physical exhibits; it is the attorneys, not the judges, who have been present at the depositions; and it is the attorneys, not the judges, who have a professional and financial stake in case outcome.” Id. at 406. In other words, “the free-ranging search for supporting facts is a task for which attorneys in the case are equipped and for which courts generally are not.” Id.

         II.

         In support of their arguments on summary judgment, Defendants submit the affidavits of UPD Officer Jade Michael Cooper (doc. 21-1) and UPD Sergeants Jason Kizer[2] (doc. 21-2), David Reese (doc. 21-3), and Edward Burkhammer[3] (doc. 21-4). Defendants also rely on Inskeep's responses to requests for admission. Doc. 21-5. Pro se Plaintiffs, on the other hand, rely on their sworn affidavits in opposing Defendants' motion. Docs. 27-1, 27-2, 27-3, 27-4. The Court has carefully considered all of the foregoing Rule 56 evidence. See Fed. R. Civ. P. 56(c)(1)(A). Unless otherwise stated herein, the following are the undisputed facts of the case.

         At approximately 12:30 a.m. on Tuesday, March 31, 2015, Urbana resident Daniel Bailey (“Bailey”), who lives at 314 Miami Street, Apartment 4, Urbana, Ohio 43078 (the “Apartment Building”) called the UPD dispatch center. Doc. 21-1 at PageID 132. During this call, Bailey reported suspected illegal drug activity taking place at the Apartment Building. Id. Specifically, Bailey stated that he discovered a marijuana grow operation in the Apartment Building's basement storage space, which was shared by the Apartment Building's residents. Id. As a result of Bailey's call, Officer Cooper was dispatched to the Apartment Building. Id.

         When Cooper arrived at the Apartment Building, Bailey showed him a plant that he removed from the grow operation. Id. Based on his visual inspection, Cooper believed the plant was marijuana. Id. at PageID 132-33. Bailey also reported having had issues with another resident of the Apartment Building -- namely Inskeep -- over Inskeep's daily marijuana use. Id. at PageID 133. Further, Bailey advised Cooper that Inskeep previously told him about a larger-scale grow operation “on a one or two acre farm off of State Route 36.” Id.

         While Cooper was speaking with Bailey, Officer Kizer was dispatched to and arrived at the Apartment Building. See doc. 21-2 at PageID 142. After Kizer arrived, Sergeant Reese was also called to assist. Id. at PageID 149-50; doc. 21-1 at PageID 133. When Reese arrived at the Apartment Building, he agreed that the plant Bailey removed from the basement appeared to be marijuana. Doc. 21-3 at PageID 152-53. Bailey then consented to a search of the Apartment Building's basement storage space by signing a Consent to Search form. Doc. 21-1 at PageID 133. After signing that form, Bailey took Cooper and Reese to the basement and showed them the grow operation that he had discovered. Doc. 21-1 at PageID 133; see also doc. 21-3 at PageID 153. At that time, Reese and Cooper agreed that the plants in the Apartment Building's basement appeared to be marijuana. Doc. 21-1 at PageID 133; see also doc. 21-3 at PageID 153.

         After observing the grow operation in the basement, Reese and Cooper proceeded to Inskeep's apartment to speak with him. Doc. 21-1 at PageID 133-34; doc. 21-3 at PageID 153. At that time -- based on the marijuana plants located in the Apartment Building's basement, the information provided by Bailey about Inskeep's daily marijuana use, the large-scale grow operation Inskeep previously described to Bailey, and Inskeep's known criminal background involving drugs (including the cultivation of marijuana) -- Reese and Cooper concluded that Inskeep was responsible for the marijuana grow operation in the Apartment Building's basement. Doc. 21-1 at PageID 134; doc. 21-3 at PageID 153.

         When Reese and Cooper arrived at the apartment Inkeep shared with Shafer, they knocked on the door and announced themselves.[4] Doc. 21-1 at PageID 134; doc. 21-3 at PageID 153. Inskeep answered the door and denied any knowledge of the marijuana grow operation in the basement. Doc. 21-1 at PageID 134; doc. 21-3 at PageID 153. Reese and Cooper testify, via affidavits submitted to the Court, that they could smell the odor of marijuana in the apartment.[5]Doc. 21-1 at PageID 134; doc. 21-3 at PageID 154. Inskeep declined to give consent to a search of the apartment, at which time Reese and Cooper instructed Plaintiffs, who were then still in the apartment, to get dressed because a search warrant was going to be obtained. Doc. 21-1 at PageID 134; doc. 21-3 at PageID 154. Defendants contend that, at that point, Inskeep told Reese and Cooper that they could enter the apartment. Doc. 21-1 at PageID 134; doc. 21-3 at PageID 154. Plaintiffs both testify, however, that no consent was ever given to Defendants to either enter or search the apartment. Doc. 27-1 at PageID 218; doc. 27-2 at PageID 219.

         Nevertheless, Reese and Cooper then entered the apartment. Doc. 21-1 at PageID 134. While Reese and Cooper were in the apartment, Shafer complied with the instruction to get dressed, but Inskeep did not. Id. Because Inskeep refused to cooperate with the commands he was given, he was detained pending the completion of the investigation into the possession of marijuana and illegal manufacture of drugs. Id. Inskeep was handcuffed, a jacket was placed around him, and he was escorted to Officer Kizer's patrol car by Sergeant Reese. Id. Reese then transported Inskeep to the UPD and Mirandized him. Doc. 21-3 at PageID 154. During this same time period, Shafer was escorted out of the apartment and into the Apartment Building's shared hallway by Kizer, who Mirandized her. Doc. 21-2 at PageID 150. Thereafter, Shafer was taken to the UPD and detained pending completion of an investigation. Doc. 21 at PageID 106.

         After Plaintiffs were detained, and while at the UPD, Reese prepared a search warrant and supporting affidavit for Cooper to sign. Doc. 21-3 at PageID 155. Notably, the affidavit ultimately signed by Cooper makes no mention of smelling marijuana while approaching the apartment, while requesting consent to search and or enter, or at the time Plaintiffs were being detained incident to seeking a search warrant. See doc. 21-1 at PageID 140; doc. 21-3 at PageID 161. While Reese was preparing these documents, Cooper remained at the Apartment Building in order to protect the scene and ensure that no physical evidence would be altered or destroyed prior to a search warrant being obtained. Doc. 21-1 at PageID 135. At 5:04 a.m., Judge Lori L. Reisinger (“Judge Reisinger”) of the Champaign County Family Court, signed a search warrant authorizing a search of the apartment. Id. At 5:27 a.m., Reese, Cooper, and Kizer executed the search warrant. Id. at PageID 136.

         At approximately 1:45 p.m., Reese spoke again with Shafer while at the UPD. Doc. 21-3 at PageID 156. At approximately 2:00 p.m., Sergeant Burkhammer and Cooper spoke with Inskeep at the UPD. Doc. 21-4 at PageID 181. Burkhammer recorded the conversation and spoke with Inskeep about his activities at the Highway 36 Property. Id.

         On June 4, 2015, Inskeep was indicted by a grand jury in Champaign County, Ohio on two counts of possession of marijuana in violation of Ohio Rev. Code § 2925.11, and two counts of illegal cultivation of marijuana in violation of Ohio Rev. Code § 2925.04. See State of Ohio v. Inskeep, No. 2015 CR 00092 (Champaign C.P. June 4, 2015); see also doc. 21-5 at PageID 190. On December 28, 2015, in exchange for the dismissal of one count of marijuana possession and one count of illegal cultivation of marijuana, Inskeep plead guilty to one count of possession of ...


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