United States District Court, N.D. Ohio, Eastern Division
Thomas J. Calvey, Plaintiff,
Village of Walton Hills, et al., Defendants.
MEMORANDUM OF OPINION AND ORDER
PATRICIA A. GAUGHAN JUDGE
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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
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.
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.
matter is now before the Court upon defendants' Motion
for Summary Judgment. Plaintiff opposes the Motion.
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
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.
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
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