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Calvey v. Village of Walton Hills

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

January 15, 2020

Thomas J. Calvey, Plaintiff,
v.
Village of Walton Hills, et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN JUDGE

         INTRODUCTION

         This matter is before the Court upon defendants' Motion for Summary Judgment (Doc. 29). This is a § 1983 action arising out of plaintiff's interactions with the Village of Walton Hills Police Department. For the reasons that follow, this motion is GRANTED.

         FACTS

         Plaintiff Thomas Calvey filed his second amended complaint (“Complaint”) against defendants the Village of Walton Hills, the Village of Walton Hills Police Department, Sargeant David Kwiatkowski, and Officer Thomas Cercek. The Complaint contains three claims for relief. Count One alleges a violation of 42 U.S.C. § 1983 for a deprivation of plaintiff's right to substantive and procedural due process under both the federal and Ohio constitutions. Count Two alleges a violation of 42 U.S.C. § 1983 for a deprivation of plaintiff's right to liberty, safety, property, and privacy under both the federal and Ohio constitutions. Count Three is a state law claim for intentional infliction of emotional distress. The claims are asserted against all defendants in their individual and official capacities.

         Written documentary evidence submitted to the Court establishes the following facts. From May 2016 through February 2018, plaintiff resided in various nursing facilities while recovering from cancer treatment. In June 2017, James Calvey, plaintiff's brother, purchased 18749 Alexander Drive, Walton Hills, Ohio (“the residence”). Plaintiff alleges this purchase was fraudulently made with his money. The residence was titled to James Calvey and Leona Calvey, plaintiff's mother. Plaintiff's name was not on the title. In March 2018, plaintiff moved into the residence with James and Leona Calvey.

         On June 7, 2018, the Village of Walton Hills Police (“the police”) received a call from James Calvey, requesting a medical squad because plaintiff's head was bleeding. However, the police dispatchers suspected this was a domestic violence situation and several police officers were dispatched to the scene. The police officers present included defendant Sargeant David Kwiatkowski (“Kwiatkowski”), defendant Officer Thomas Cercek (“Cercek”), and Walton Hills police chief Stanley Jaworski (“Jaworski”).

         Kwiatkowski testified that when he arrived at the residence, plaintiff informed him that James Calvey had pushed him, causing him to hit his head on the counter and fall into Leona Calvey. James Calvey was thereafter arrested and transported to jail. He was charged with domestic violence and ultimately plead guilty to a reduced charge.

         Leona Calvey sustained injuries during the June 7, 2018 incident. On June 15, 2018, she underwent an operation for her injuries and was transferred to a nursing facility. She remained at this facility until July 27, 2018.

         Meanwhile, on June 22, 2018, plaintiff obtained an ex parte civil protection order through the Cuyahoga County domestic relations court (“state court”) against James Calvey. The order contained the following provisions: (1) James Calvey was to immediately vacate the residence; (2) plaintiff had exclusive possession of the residence and James Calvey was not to interfere with plaintiff's right to occupy the residence; (3) James Calvey was to surrender all keys and garage door openers to law enforcement; and (4) James Calvey was to remain 500 feet away from plaintiff. Leona Calvey was not referenced within this order and was not a party to the action.

         On July 16, 2018, Leona Calvey obtained an ex parte civil protection order through the state court against plaintiff. Within this order, plaintiff was to remain 500 feet away from Leona Calvey, and not have any contact with her or interfere with her residence.

         On July 27, 2018, Leona Calvey left the nursing facility and returned to the residence. That same date, she called the police advising them that plaintiff was at the residence. Police officers responded to the scene, including Kwiatkowski. According to Kwiatkowski's deposition testimony, he spent an hour at the residence attempting to “figure out exactly what we were going to do with these two protection orders.” He called both the Village of Walton Hills law director and prosecutor for advice. It was eventually determined that until the state court clarified how the two protection orders were to be handled, plaintiff would stay in the mother in law suite and have access to the kitchen. Kwiatkowski warned plaintiff that if he had any contact with Leona Calvey or caused a disturbance, he would be arrested.

         According to plaintiff's deposition testimony, Kwiatkowski initially informed plaintiff that he could not be at the residence with Leona Calvey. Plaintiff testified that his attorney, Kwiatkowski, and the Village of Walton Hills law director then had a conference call in the driveway of the residence. After some discussion, plaintiff and his attorney agreed that both plaintiff and Leona Calvey would remain at the residence, but plaintiff would reside in the in-law suite, with access to the kitchen.

         On July 28, 2018, Leona Calvey called the police twice with complaints about plaintiff. During the first phone call, Leona Calvey reported that she thought plaintiff had taken some of her mail. When police officers Grames and Cercek arrived at the residence, plaintiff denied taking any mail. Leona Calvey then called the police a second time that day, reporting that plaintiff was screaming and yelling at her. Police officers, including Cercek, responded to the scene. Plaintiff denied yelling at Leona, and the officers advised Leona Calvey that she could be arrested for false information. Leona Calvey then admitted that plaintiff had not been yelling and screaming at her.

         On July 29, 2018, Leona Calvey called the police, reporting difficulty breathing after an encounter with plaintiff. Kwiatkowski and Cercek arrived at the residence to investigate. Kwiatkowski testified that Leona Calvey was “a wreck, ” “had a difficult time talking, ” and was shuttering and shaking. Kwiatkowski gave plaintiff the choice of either leaving the residence or being arrested.

         According to plaintiff's deposition testimony, he heard Kwiatkowski shout from the kitchen that plaintiff had “15 minutes to gather [his] things together and [the police were] going to take [him] to a hotel.” Plaintiff ultimately decided to leave. Cercek transported plaintiff to the LaQuinta Hotel in Macedonia, Ohio.

         Leona Calvey's grandson, James Calvey, Jr., was at the residence when Cercek and Kwiatkowski were present. The officers told James Calvey, Jr. that James Calvey could “return to the residence for the time being, ” but if plaintiff returned to the house “after this matter gets straightened out by the courts [James Calvey would] have to leave.” The officers also requested a key to the residence in case of an emergency.

         Plaintiff called the police later that day, reporting that he had called the residence to speak with his mother and James Calvey had gotten onto the phone and hung up on him. Plaintiff requested that the police go to the residence, but the police advised him that he would need to come down to the station to make a report. Plaintiff called back a half hour later, again re-iterating that James Calvey was at the residence. He was again told to come to the station to make a report.

         On July 30, 2018, Kwiatkowski emailed all Walton Hills police department personnel, stating that until clarification was made by the state court, plaintiff was not permitted to return to the residence or he would face arrest. Plaintiff remained at the LaQuinta until September 2018. He has resided in various nursing facilities and hospitals ever since.

         On January 11, 2019, the state court issued its final protection order as to the case pending between plaintiff and James Calvey. Within the findings of fact, the state court determined that Leona Calvey was a “willing participant” in the actions against plaintiff and had, under James Calvey's directives, lied to the police. The court found “that the exclusion of Leona, James Jr. and Leona's ‘friends' from the Walton Hills residence, as well as the exclusion of [James Calvey, ] is equitable and fair to bring about the cessation of domestic violence against” plaintiff. The order then granted exclusive possession of the residence to plaintiff “regardless of title of said residence, ” and prohibited James Calvey from entering the residence or coming within 500 feet of plaintiff. Leona was not a party to this case.

         On January 14, 2019, the state court dismissed Leona Calvey's ex parte civil protection order against plaintiff. Thereafter, plaintiff's attorney emailed the Walton Hills Police Department requesting assistance in removing James and Leona Calvey from the residence.

         On January 28, 2019, plaintiff met a locksmith and two police officers at the residence. The police officers escorted James Calvey off the property. They did not place him under arrest. Plaintiff requested that Leona Calvey be removed from the residence. One of the police officers at the scene, Sergeant Walsh, advised plaintiff to “contact his attorney to inquire about an eviction notice” because they could not “remove [Leona Calvey] from the property without an eviction notice.” Plaintiff thereafter left the residence and returned to an assisted living facility. He has not resided at the residence through the present.

         This matter is now before the Court upon defendants' Motion for Summary Judgment. Plaintiff opposes the Motion.

         STANDARD OF REVIEW

         Summary Judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (citing Fed.R.Civ.P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir. 1993). The burden of showing the absence of any such genuine issues of material facts 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, 477 U.S. at 323 (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, 477 U.S. 242, 248 (1986). Accordingly, the nonmoving party must present “significant probative evidence” to demonstrate that “there is [more than] some metaphysical doubt as to the material facts.” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir.1993). The nonmoving party may not simply rely on its pleading, but must “produce evidence that results in a conflict of material fact to be solved by a jury.” Cox v. Kentucky Dep't. of Transp., 53 F.3d 146, 150 (6th Cir. 1995).

         The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). However, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.

         Summary judgment should be granted if a party who bears the burden of proof at trial does not establish an essential element of his case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex, 477 U.S. at 322). Moreover, if the evidence 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 (citation omitted).

         ANALYSIS

         I. Federal Claims

         Counts One and Two assert claims under 42 U.S.C. § 1983. Count One alleges that defendants violated plaintiff's substantive and procedural due process rights. Count Two alleges that defendants violated plaintiff's “civil rights, ...


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