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Nice v. City of Akron

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

August 1, 2019

JAMES NICE, PLAINTIFF,
v.
CITY OF AKRON, et al., DEFENDANTS.

          MEMORANDUM OPINION AND ORDER

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         This case was filed by plaintiff James Nice (“Nice”) on July 10, 2018, against the City of Akron (the “City”), Mayor Daniel Horrigan (“Horrigan”), and Police Chief Kenneth Ball (“Ball”)[1](collectively, “defendants”) (Doc. No. 1); the complaint was amended on December 27, 2018 (Doc. No. 16 [“FAC”]). The FAC set forth one federal claim under 42 U.S.C. § 1983 (alleging that defendants retaliated against Nice for the exercise of his First and Fourteenth Amendment rights) and five causes of action under Ohio law (defamation/defamation per se; invasion of privacy/false light; abuse of process; civil liability for criminal acts-false writings; and civil conspiracy), seeking declaratory and equitable relief, compensatory and punitive damages, and attorney's fees and costs, plus interest. Defendants filed an answer to the FAC on January 10, 2019. (Doc. No. 17 [“Answer”].)

         The case proceeded according to the Case Management Plan and Trial Order (Doc. No. 12), as amended on March 22, 2019 (extending the fact discovery cutoff from April 30, 2019 to May 30, 2019). In a joint status report filed on July 22, 2019, the parties indicated that all discovery has been completed (Doc. No. 36 at 274[2]), with the exception of discovery that will be affected by the Court's anticipated ruling on a pending motion to quash a subpoena and subpoena duces tecum.

         The motion to quash was filed on May 29, 2019, by nonparties Matthew Meyer (“Meyer”) and the Cuyahoga County Prosecutors Office (“CCPO”). (Doc. No. 29.) They seek to quash subpoenas requiring deposition testimony and production of all correspondence of any kind to or from any agent of the Akron Police Department regarding Nice from August 27, 2017 to the present, as well as the complete phone records of Meyer.

         The FAC and the motion to quash are both based on the same set of factual allegations. Nice, who was the Police Chief of the City of Akron from June 8, 2011 to August 26, 2017 (FAC ¶¶ 14, 27), alleges that the defendants engaged in a highly public attack on his character and reputation aimed at “see[ing] that [he] was removed as police chief[, ]” both because the newly elected Horrigan “was intent on placing individuals whom he thought would be loyal to him in leadership roles[, ]” and because Nice “would not acquiesce out of loyalty to all of Horrigan's requests[.]” (Id. ¶¶ 17, 20, 22.) In addition, Nice alleges that, during his tenure as police chief, he “exercised his First Amendment rights to criticize then President O'Bama's [sic] pardoning of convicted criminals and to make protected comments regarding [p]laintiff's opinion that some judges were too lenient in sentencing convicted criminals.” (Id. ¶ 23.) Nice alleges that “Horrigan disapproved of these comments, prompting Horrigan to find ways to retaliate against [Nice], including pressuring [Nice] to resign without any investigation into allegations made against [Nice] and using Horrigan's influence to instigate a bogus criminal investigation into [p]laintiff.” (Id. ¶ 24.)

         Eventually, in a manner outlined in the FAC, a criminal investigation of Nice began, allegedly based on false accusations made by his nephew, who was allegedly seeking to obtain immunity in his own criminal prosecution. (Id. ¶ 38.) Nice alleges that “an unjust prosecution” against him was “initiated and was ultimately transferred to the Cuyahoga County Prosecutor's [O]ffice for investigation supposedly in an effort to avoid any conflict of interest that the Summit County Prosecutor would have[.]” (Id. ¶ 39.)

         Nice alleges that he was “threatened by prosecutors that [he] would be charged with a number of serious felonies if [he] did not plead to a misdemeanor charge of misuse of a computer.” (Id. ¶ 41.) Although this misuse of a computer “did not occur, ” Nice states that “in an effort to avoid further prosecution for more serious meritless offenses and in [an] attempt to minimize the scathing press coverage he experienced as a result of the meritless prosecution, [he] plead [sic] to this charge.” (Id.) Nice claims that the charges against him “were motivated by reasons other than true law enforcement prerogatives.” (Id. ¶ 42.)

         Nice initiated this lawsuit on July 10, 2018, and defendants immediately communicated that fact to the CCPO and “conspired with them to punish [p]laintiff for filing the lawsuit.” (Id. ¶¶ 44-45.) On July 10, 2018, approximately four hours after the filing of this lawsuit, the CCPO filed a motion to vacate Nice's plea in his criminal case. (Id. ¶ 46.)[3] Nice alleges that “[t]his conspiracy . . . was intended to punish [him] for exercising his First Amendment right to free speech as asserted in the instant lawsuit, in addition to abuse the criminal process against him in retaliation for filing the instant lawsuit.” (Id. ¶ 47.)

         II. DISCUSSION

         The sole basis for this Court's original jurisdiction is the single § 1983 claim in the third cause of action. The remaining claims are all brought under the Court's supplemental jurisdiction. If the federal claim were not to survive, the Court has discretion (which it would exercise) to dismiss all the state law claims without prejudice. 28 U.S.C. § 1367(c)(3). Therefore, before resolving the contested motion to quash, the Court needs to consider whether the sole federal claim is viable under the known facts of this case, as pleaded in the FAC.

         In his third cause of action, Nice alleges as follows, in the entirety:

64. Plaintiff realleges and incorporates by reference the paragraphs above, as though fully set forth herein.
65. In retaliation for Plaintiff exercising his First Amendment rights (as incorporated by the Fourteenth Amendment), as described above, Defendants retaliated and/or adopted a custom, policy, ...

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