United States District Court, N.D. Ohio, Eastern Division
R. ADAMS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Eric Paull's
Motion for Reconsideration of the Court's March 28, 2019
Opinion. Specifically, Paull asks the Court to reconsider its
order denying summary judgment on Plaintiff Alexis
Dekany's § 1983 claim for excessive force, finding
triable issues of fact as to whether Paull acted under the
color of state law. Dekany has responded to the motion for
reconsideration, and Paull has replied. For the reasons
discussed, the Court hereby ORDERS that Paull's motion
for reconsideration (Doc. 356) is DENIED.
the facts of this matter are set forth fully in the
Court's March 28, 2019 Opinion (Doc. #350), the Court
will not repeat them here. Rather, the Court incorporates
herein by reference its previous discussion of the facts.
(See Doc. 350, PageID# 7170 - PageID# 7292.)
establish a cause of action under § 1983, a plaintiff
must show: (1) deprivation of a right secured by the
Constitution or laws of the United States (2) caused by a
person acting under color of state law. American Mfrs.
Ins. Co. v. Sullivan, 526 U.S. 40, 40-50 (1999);
McQueen v. Beecher Cmty. Schs., 460, 463 (6th Cir.
2006). Thus, Dekany cannot prevail on her § 1983 claim
unless she demonstrates that Paull acted under the color of
law when her rights were violated.
this Court's March 28, 2019 Order examined whether Paull,
an off-duty police officer during all times relevant, was
acting under color of law when he allegedly violated
Dekany's constitutional rights. In determining whether a
police officer acted under color of state law “[t]he
fact that a police officer is on or off duty, or in or out of
uniform is not controlling. It is the nature of the act
performed, not the clothing of the actor or even the status
of being on duty, or off duty, which determines whether the
officer has acted under color of law.” Stengel v.
Belcher, 522 F.2d 438, 441 (6th Cir. 1975) (citation
omitted). Accordingly, while an off-duty police officer may
be liable under § 1983, we must be cognizant of the
principle that “[a]cts of police officers in the ambit
of their personal, private pursuits fall outside of 42 U.S.C.
§ 1983.” Id. (citing Monroe v.
Pape, 365 U.S. 167, 185 (1961)).
motion for summary judgment, Paull argued that his
relationship with Dekany was a purely private undertaking.
Therefore, according to Paull, any actions taken in pursuit
of that relationship constituted private conduct not taken
under color of law.
March 28, 2019 Order, this Court recognized that private
conduct typically is not attributable to the state. However,
the Court held that “when a police actor undertakes a
purely private action not typically attributable to the
state, but does so while invoking his authority as a police
officer *** a plaintiff who is injured by the police
officer's action may be able to establish the state
action required to sustain a § 1983 action.” (Doc.
350, PageID# 7189, citing Pickard v. City of Gerard,
70 F.Supp.2d 802, 806 (N.D. Ohio 1999).) The Court found that
this is indeed the situation in this case.
Court held that triable issues of fact remain regarding
whether Paull invoked his status as a police officer to the
extent he acted under color of law in pursuit of his
relationship with Dekany. Specifically, the Court held:
The cumulative weight of the evidence creates a question of
fact as to whether Paull acted under color of law. This
evidence demonstrates that Paull repeatedly asserted his
purported authority as a police officer in furtherance of his
private relationship with Dekany. To begin, Paull used his
police-issued service weapon to physically assault Dekany
during the October 2014 incident, when he held the gun to her
head. (Dekany p. 153-154.) Another manifestation of police
authority occurred during the December 2014 incident. Prior
to Sergeant Kelly's arrival, Paull, while in full police
uniform, questioned Dekany's neighbor regarding the owner
of the truck that Dowler had parked outside her residence.
(Paull p. 219-220.) Moreover, Paull told Dekany that his
connections as an officer made him “untouchable”
and immune from punishment, making her feel helpless and
without recourse. (Dekany p. 263.) Further, during his
so-called “Tour of Alexis” in April 2015, Paull
sent Dekany a picture or pictures of his service weapon as
part of his attempt to terrorize and manipulate her. (Dekany
p. 287.) One day earlier, he had expressed a desire via text
message to shoot Dowler in the head, presumably with his
department-issued gun, out of jealousy and love for Dekany.
(Paull p. 256-257.) Paull also extensively used police
department databases, and in particular Accurint and OHLEG,
to track Dekany's boyfriends and learn their criminal
histories - information he then used to stalk and manipulate
Dekany. (Paull p. 98-100.) Although Paull apparently accessed
the databases while off duty through his personal computer,
tablet, or phone, he had access to OHLEG and Accurint solely
due to his status as a police officer. (See id.)
Indeed, Paull pled guilty to multiple counts of criminal
misuse of OHLEG. Paull also threatened to exercise his
purported police authority to send one of Dekany's
romantic interests to jail based on warrants discovered
through his illegal use of OHLEG, even though Paull believed
the warrants to be outside of his jurisdiction. (Paull p.
In all of these instances, beginning with the first alleged
act of violence against Dekany in October 2014, Paull used
some degree of purported state authority to pursue his
private relationship with Dekany. Under the specific facts of
this case, these not-infrequent displays of purported
authority converted Paull's purely private endeavors,
which typically would not be attributable to state action, to
actions taken under color of law. See
Pickard¸70 F.Supp.2d at 806.
motion for reconsideration, Paull argues that there is no
sufficiently close nexus between the actions of Mr. Paull
taken during his private romantic relationship with Dekany
and the state itself, such that Mr. Paull's actions may
not be attributed to the state. Paull essentially argues that
none of Paull's acts viewed individually arise to a
showing of state authority.
Court disagrees, as Paull's argument misses the point.
The Court has held that Paull's actions, cited above,
cumulatively give rise to a question of fact regarding
whether Paull invoked his authority as a police office during
the course of his relationship with Dekany such that his
alleged actions in violation of her constitutional rights
were taken under color of law. The Court stands by its
also argues that the Court erred in “reject[ing] Mr.
Paull's argument that Plaintiff had the burden of showing
that Mr. Paull was acting under color of law as to each
incident in which she alleged a constitutional violation
occurred.” (Doc. 356, PageID# 7247.) Paull invokes the
Sixth Circuit's caution against viewing too broadly the
circumstances relevant to the constitutional claims in §
1983 actions. (Id.) Paull urges the Court to
consider Dekany's claims “in segments, ”
pursuant to the Sixth Circuit's decision in Dickerson
v. McClellan, 101 F.3d 1151 (1996).
Dickerson, the decedent's estate brought two
§ 1983 claims, one for officers' violation of the
knock-and-announce rule, and another for their use of
excessive force once inside the home. Dickerson, 101
F.3d at 1154. The Dickerson plaintiffs claimed
“the officers should be held accountable for creating
the need to use excessive force by their unreasonable
unannounced entry.” Id. at 1160. The Sixth
Circuit disagreed, holding that, “[a]lthough both
claims are premised on Fourth Amendment violations, the
violation of the knock and announce rule is conceptually
distinct from the excessive force claim.” Id.
at 1162. Thus, the Sixth Circuit found “good
reason” to “carve up the incident into segments
and judge each on its own terms.” Id. at 1161.
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