United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge
AND RECOMMENDATION  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
Michael J. Newman, United States Magistrate Judge
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.
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
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.”
“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).
“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.
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 (doc. 21-2),
David Reese (doc. 21-3), and Edward Burkhammer (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.
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.
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.
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
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.
Reese and Cooper arrived at the apartment Inkeep shared with
Shafer, they knocked on the door and announced
themselves. 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.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.
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
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
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.
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 ...