XXXX DISTRICT COURT
FOR THE NORTHERN DISTRICT OF XXXX
| XXX, Plaintiff vs. XXXX et al., Defendants | Case No. XXXX |
BURDEN OF PROOF REPORT
Plaintiff XXXX (hereinafter “Plaintiff”) pro se, and files this Burden of Proof Report. Plaintiff states as follows:
BRIEF FACTS
This action concerns violations of Plaintiff’s constitutionally protected rights by the Defendants. The substance of the Complaint began on XXXX when Plaintiff was driving to his residence in Berea, Ohio. When he stopped to refuel his vehicle at the XXXX Gas Station, he was stopped by Officer XXXX of the Brooklyn Police Department. Plaintiff had not violated any law. He was also neither impaired nor under the influence of any substances.
Without explaining the reason for the stop, the officer demanded that Plaintiff leave the vehicle, and subjected him to a search. He searched Plaintiff’s person, his vehicle and personal effects including his cell phone, wallet, automobile keys, and personal protective equipment (PPEs). Plaintiff questioned why he was unlawfully detained and Aftim began to read him the Miranda Rights. The officer also questioned Plaintiff on his personal affairs including his reasons for being at the gas station and his intended destination. Plaintiff complied with all the officer’s commands, and responded to all inquiries and interrogations.
The officer then falsely identified a small brown bottle of oil in Plaintiff’s possession as “PCP”, an illegal substance, without any valid justification or proof, such as odor or other indicators typically associated with illegal drugs. Plaintiff informed the officer that said substance was not an illegal drug. The officer then placed Plaintiff at the back of a squad car. He then called other Brooklyn police officers Pitts, and Spisak to assist him.
Interestingly, Plaintiff learnt that officers Pitts, and Spisak conducted an internet search of the brown bottle and informed officer Aftim that the content of the brown bottle was sold and recognized for use by members of the LGBTQ community. That notwithstanding, the officers did not intervene and stop officer Aftim from continuing to detain Plaintiff.
Notably, Plaintiff kept expressing his concerns over the blatant intrusion into his privacy and violation of his rights. Plaintiff also requested to speak to his attorney. Instead, Officer Aftim kept detaining Plaintiff amidst said concerns. He also denied Plaintiff’s request to speak to his attorney. Further, he did not provide any reason for searching, seizing, and detaining Plaintiff.
The officers then issued a citation #TR20550 in allegedly for TURNING AT INTERSECTION. Consequently, on XXXX, Plaintiff appeared before XXX Court to contest the citation issued against him. Plaintiff protested the disparate treatment and the many violations of his constitutional rights. It is further notable that Defendant McDonnell, the Prosecutor for the City of Brooklyn, was present and refused to address his concerns and complaints concerning Aftim and the erroneous citations. Plaintiff attempted to resolve matters there but was unsuccessful due to McDonnell. Vince Ruffa, city prosecutor for Broadview Heights who was present at that time issued an “apology” to Plaintiff for the other Defendants’ behavior and the Court for its failure to remedy the violations of the Due Process Clause.
Plaintiff entered a NOT GUILTY plea and the case was transferred to Parma Municipal Court for further trial and resolution. During the proceedings, Plaintiff’s counsel filed a timely motion for discovery. However, the City of Brooklyn and McDonnell ignored all of Plaintiff’s legitimate requests. Plaintiff had to hire additional outside council at Maguire Schnieder Hassay, LLP, 1650 Lake Shore Drive, Suite 150, Columbus, Ohio 43204 to request public records concerning citation from 1/03/2021 against Philip Waseleski #TR20550 TURNING AT INTERSECTION violation and pursuant to ORC Section 149.43, public records including police reports, citations, dash cam videos, body cam video, and any surveillance videos that the Department may have obtained.
Besides, the prosecutor withheld exculpatory information from Plaintiff to cause the criminal case to be delayed and to conceal the many civil rights violations by Defendants. Consequently, on August 23, 2021, Plaintiff prevailed in the Parma Municipal Court against Defendants and obtained a dismissal of the false citation issued by Aftim.
CAUSES OF ACTION
In light of the foregoing, Plaintiff makes the following claims against the Defendants:
- Negligent Infliction of Emotional Distress
Here, Plaintiff asserts that the Defendants negligently engaged in conduct that violated Plaintiff’s constitutionally protected rights. These actions, as depicted in the factual background, inflicted emotional distress on Plaintiff.
- Violation of Fourth Amendment Rights 42 U.S.C. §1983: Malicious prosecution and abuse of process
Here, Plaintiff asserts that the Defendants subjected him to prosecution without probable cause. Plaintiff has shown how the citation was issued without evidence of Plaintiff’s violation of any law. The Defendants also failed to follow procedural guidelines that are duly established by applicable law, including the constitution.
- Violation of Sixth Amendment Rights, 42 U.S.C. § 1983 – Denial of Right to Counsel
Here, Plaintiff has demonstrated how he requested to talk to his counsel, which request was blatantly denied. This violated Plaintiff’s right to counsel.
- Violation of Departmental Policies
Here, Plaintiff asserts that the Defendants failed to adhere to standards set forth by the Brooklyn Police Department, regarding proper procedure, and the protection of rights of citizens. The conduct of the Defendants as established in the facts show a departure from the proper procedure established by said department.
- Threat of Bodily Injury and Infliction of Bodily Injury
Here, Plaintiff asserts that the conduct of the officers during the search, seizure, and detention, threatened harm and/or injury on Plaintiff. The procedure of the officers failed to follow the guidelines and protections established by law.
- Violation of Due Process Rights
Here, Plaintiff asserts that the conduct of the Defendants from the illegal search and seizure, to the malicious prosecution, violated his due process rights to inter alia, fair process.
- Failure to train and supervise
Here, Plaintiff asserts that the conduct of the officers and the prosecution throughout the criminal process evidences a dire want of proper training and supervision. The officers blatantly violated constitutionally protected rights, which fact shows the need to train said officers on proper procedure and protection of constitutionally protected rights.
- Conspiracy to Deprive Rights
Here, Plaintiff asserts that the Defendants conspired to deprive Plaintiff of his constitutionally protected rights. All the officers were aware of the violations and potential violations of Plaintiff’s rights, but failed to stop the violations from going on. For instance, Plaintiff has stated how he learnt that officers Pitts, and Spisak conducted an internet search of the brown bottle and informed officer Aftim that the content of the brown bottle was sold and recognized for use by members of the LGBTQ community. That notwithstanding, the officers did not intervene and stop officer Aftim from continuing to detain Plaintiff.
- Violation of Equal Protection Rights
Plaintiff is an openly gay male and is depicted as non-conforming straight male. Plaintiff asserts that this was one of the motivating factors for the Defendants’ discriminatory behavior towards him. Had the Plaintiff not been a gay male, he would have been treated differently.
- Invasion of Privacy
Here, the officers stopped and searched Plaintiff and his belongings without probable cause. There was no reasonable suspicion that Plaintiff had engaged in any offense.
EVIDENCE AVAILABLE
Plaintiff intends to rely on the following evidence in support of his case:
- Information and documents from discovery
- Documents in Plaintiff’s possession
- Court records from the Parma Municipal Court and the other civil actions instituted by Plaintiff against the Defendants
- Any other evidence that may be obtained in the course of the proceedings
OPPOSING PARTY’S ARGUMENTS
The Defendants intend to rely on the following possible arguments, as evidenced in their response to the Amended Complaint:
- Plaintiff has reasserted causes of action which have previously been dismissed by this Court
- Plaintiff’s claims are barred by the statute of limitations
- The Complaint fails to state a claim against the Defendants upon which relief can be granted.
- Plaintiff’s claims are barred by operation of the doctrines of Heck v. Humphrey and its line of cases, as well as the Rooker-Feldman doctrine
- The allegations in Plaintiff’s Amended Complaint are barred under the principles of qualified immunity.
- The allegations in Plaintiff’s Amended Complaint are barred under principles of state immunity pursuant to Ohio Revised Code Section 2744.01 et seq. and the common law of Ohio.
- The allegations in Plaintiff’s Amended Complaint are barred based upon Plaintiff, Philip M. Waseleski’s assumption of risk, both primary and secondary, as well as Plaintiff Philip M. Waseleski’s failure to follow police directives and failure to properly abide by lawful police commands, thus committing dangerous and criminal conduct, as well as other actions in which Plaintiff knowingly violated police orders, all of which bar Plaintiff’s claim for damages.
- The allegations in Plaintiff’s Amended Complaint are barred based upon the conduct of Plaintiff Philip M. Waseleski whose conduct intervened and superseded any claimed conduct of the Officer who perceived his actions to be a threat to himself or to the community and thus the Officer acted appropriately and for the protection of others.
- The allegations in Plaintiff’s Amended Complaint are barred under principles of waiver, estoppel, and/or consent.
- The damages of which Plaintiff complains were caused in whole or in part by the person over whom Plaintiff does not seek recovery, and any alleged damages may be reduced based upon the tortious conduct of these individuals pursuant to Ohio Revised Code §2307.23.
- These Defendants are entitled to a deduction and set-off against any damages, if any, sustained by Plaintiff as provided under Ohio law, pursuant to Ohio Revised Code §2744.01 et seq., and other applicable sections of the Revised Code, and for any benefits received from any policy or policies of insurance or other sources.
- These Defendants are entitled to prosecutorial immunity and as such, Plaintiff’s Amended Complaint is barred.
- Plaintiff’s Amended Complaint fails for lack of service and service of process, as Plaintiff failed to secure service within the requisite time mandated by the Federal Rules of Civil Procedure.
Respectfully submitted,
Dated: __________
______________________________
XXXX
Plaintiff, pro se
CERTIFICATE OF SERVICE:
The undersigned hereby certifies that the above and foregoing was served by regular U.S. Mail, postage prepaid, on the Defendants:
[ENTER DEFENDANTS’ ADDRESS]
Dated: _____________
______________________________
XXXX
Plaintiff, pro se