MOTION FOR SUMMARY JUDGMENT

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

PHILIP M. WASELESKI,                                     Plaintiff     vs.  CITY OF BROOKLYN, OHIO, et al.,                                    DefendantsCase No. 1:23-CV-0548  

MOTION FOR SUMMARY JUDGMENT

Plaintiff PHILIP M. WASELESKI (hereinafter “Plaintiff”) pro se, and files this Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff requests this Court enter Summary Judgment against Defendants for the reasons set forth below.

INTRODUCTION

Plaintiff initiated this action by filing a complaint alleging causes of action for negligent infliction of emotional distress, violation of the Fourth Amendment rights (malicious prosecution and abuse of process), violation of the sixth amendment right to counsel, violation of department policies, threat and infliction of bodily injury, violation of due process rights, failure to train, conspiracy to deprive rights, violation of equal protection rights, and invasion of privacy.

  1. Standard of Review

In order to prevail on a motion for summary judgment, the moving party must show that the nonmoving party has insufficient evidence to support his case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2252-53 (1986). If the moving party successfully negates an essential element of the nonmoving party’s case, the burden shifts to the nonmoving party to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id. dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id.

  • There is no genuine issue as to any material fact: Plaintiff is entitled to summary judgment

Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993); Lawrence v. Northrop Corp., 980 F.2d 66, 68 (1st Cir. 1992).

“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment…” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248, 106 S.Ct. at 2510. The nonmoving party must show more than the existence of a “metaphysical doubt” regarding the material facts. Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986).

In this case, Plaintiff has shown stated how the Defendants violated the laws referred to in the Amended Complaint. Plaintiff hereby presents the arguments as follows:

  1. Negligent infliction of emotional distress

In Paugh v. Hanks, 6 Ohio St. 3d 72, 451 N.E.2d 759 (Ohio 1983), the Court held that a cause of action may be stated for the negligent infliction of serious emotional distress without the manifestation of a resulting physical injury.

Here, Defendant committed negligent acts that inflicted emotional distress on Plaintiff. These acts are described in detail in the Amended Complaint. The acts include, without limitation:

  1. Stopping Plaintiff at the traffic stop without justification and/or probable cause.
  2. Demanding Plaintiff exist the vehicle and subjecting him and his vehicle to a search without probable cause.
  3. Detaining and interrogating Plaintiff at the back of the police car without probable cause.
  4. Interrogating Plaintiff against his will.
  5. Issuing citation #TR20550 against Plaintiff, without justifiable reasons.

The cumulative of these actions subjected Plaintiff to emotional distress. There is no genuine issue of material fact regarding Defendant’s blameworthy conduct, which subjected Plaintiff to emotional distress.

  • Violation of the Fourth Amendment rights: 42 U.S.C. §1983 (malicious prosecution and abuse of process)

Courts in this Circuit have held that establishing a § 1983 cause of action requires a constitutional violation. See Frantz v. Village of Bradford, 245 F.3d 869, 875 (6th Cir. 2001). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws and must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Dominguez v. Corr. Med. Servs.,555 F.3d 543, 549 (6th Cir. 2009).

Because § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albright v. Oliver,510 U.S. 266, 271 (1994).

In Thompson v. Clark (2022) 142 S.Ct. 1332, the Supreme Court held that a plaintiff who brings a Fourth Amendment claim under 42 U.S.C. § 1983 for malicious prosecution need only show the underlying criminal prosecution ended without a conviction to demonstrate the favorable termination element of the claim.

Here, Plaintiff based his § 1983 malicious prosecution claim on his Fourth Amendment right from unreasonable search and seizure. Plaintiff has demonstrated how he prevailed in the Parma Municipal Court against Defendants and obtained a dismissal of the false citation issued against him. (See para. 52 of Plaintiff’s Amended Complaint). Besides, in the proceedings, Defendants engaged in frivolous conduct such as withholding pertinent information from Plaintiff. (See para. 50 & 51, Amended Complaint).  There is therefore no genuine issue of material fact with regard to Defendants’ unlawful subjection of Plaintiff to prosecution without proper cause.

  • Violation of the sixth amendment right to counsel,

“The Sixth Amendment provides a criminal defendant with the right `to have the Assistance of Counsel for his defence.’ An essential element of this right is the right to have counsel of one’s choice.” United States v. Mooneyham, 473 F.3d 280, 291 (6th Cir. 2007) (citing United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2561 (2006)).

Plaintiff demonstrated how, in the illegal seizure and detention by the Defendants, he was denied the right to contact his attorney. Officer Aftim expressly declined Plaintiff’s request to have an attorney present. There is therefore no genuine issue of material fact regarding Defendants’ denial of Plaintiff’s right to counsel.

  • Violation of department policies

Under established law, Calhoun County may only be liable under § 1983 when its policy or custom causes the injury. See Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978). “A “policy” includes a “policy statement, ordinance, regulation, or decision officially adopted and promulgated” by the sheriff.” Wallace v. County of Calhoun, Case No. 1:10-cv-144, 11-12 (W.D. Mich. Apr. 14, 2010).

 In a municipal liability claim, the finding of a policy or custom is the initial determination to be made. Doe v. Claiborne County, 103 F.3d 495, 509 (6th Cir. 1996). The policy or custom must be the moving force behind the constitutional injury, and a plaintiff must identify the policy, connect the policy to the governmental entity and show that the particular injury was incurred because of the execution of that policy. Turner v. City of Taylor, 412 F.3d 629, 639 (6th Cir. 2005); Alkire v. Irving, 330 F.3d 802, 815 (6th Cir. 2003). It is the court’s task to identify the officials or governmental bodies which speak with final policymaking authority for the local government in a particular area or on a particular issue. McMillian v. Monroe County, 520 U.S. 781, 802-03 (1997).

Notably, in City of Canton v. Harris, 489 U.S. 378 (1989)8, the Supreme Court held that municipalities can be held liable under § 1983 for failure to adequately train their officers if the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.

Here, the cumulative of officers’ conduct during the illegal seizure, detention, and the prosecution of Plaintiff’s criminal case shows that the officers were not adequately trained on the respect and protection of constitutionally protected rights. For instance, it is expected that the officers know of the right of an arrested person to have their counsel present. In total disregard of this right, the officer denied Plaintiff’s request to contact his attorney. There is therefore no genuine issue of material fact on whether the Defendants violated established policy to wit, standards set forth by the Brooklyn Police Department.   

  • Threat and infliction of bodily injury

Courts have held that “excessive use of force can render a search unreasonable.” See United States v. Ankeny, 502 F.3d 829, 836 (9th Cir. 2007). “To prevail on an excessive force claim, a plaintiff must show ‘(1) an injury that (2) resulted directly and only from the use of force that was excessive to the need and that (3) the force used was objectively unreasonable.’” Windham v. Harris Cnty., 875 F.3d 229, 242 (5th Cir. 2017) (quoting Hamilton v. Kindred, 845 F.3d 659, 662 (5th Cir. 2017)).

Here, the facts in the Amended Complaint clearly show that the officers used excessive and/or unreasonable force. Defendants’ actions in detaining Plaintiff under protest, denying him his right to counsel, subjecting him to a search without proper cause, are evidence of the unreasonable force they exerted against Plaintiff. Besides, the said actions subjected Plaintiff to a threat of bodily harm. It follows; there is no genuine issue of material fact that the Defendants’ conduct amounted to unreasonable force and/or an imminent threat of harm to Plaintiff.

  • Violation of due process rights

The Fourteenth Amendment Due Process Clause states that “[n]o state shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

Here, the Amended Complaint shows factual evidence of how the Defendants violated Plaintiff’s due process rights to fair process. Notably, the Defendants searched, seized, detained, and interrogated without probable cause. The Defendants also denied Plaintiff’s right to counsel. Additionally, the Defendants subjected Plaintiff to criminal prosecution without proper cause, which case was eventually dismissed. The cumulative facts established by Plaintiff show that there is no genuine issue of material fact regarding Defendants’ violation of Plaintiff’s rights without following the process of the law.

  • Failure to train

A plaintiff who sues a municipality for a constitutional violation under § 1983 must prove that the municipality’s policy or custom caused the alleged injury. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). One way to prove an unlawful policy or custom is to show a policy of inadequate training or supervision. See City of Canton v. Harris, 489 U.S. 378, 387, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). To succeed on a failure to train or supervise claim, the plaintiff must prove the following: (1) the training or supervision was inadequate for the tasks performed; (2) the inadequacy was the result of the municipality’s deliberate indifference; and (3) the inadequacy was closely related to or actually caused the injury. See Russo v. City of Cincinnati, 953 F.2d 1036, 1046 (6th Cir. 1992).

Here, Plaintiff has demonstrated how the Defendants failed to follow established standards with regard to respect and protection of constitutional rights. This was characterized by the officers’ illegal search, seizure, detention, and interrogation of Plaintiff. The blatant denial of Plaintiff’s constitutional right to counsel further buttresses Plaintiff’s assertion. Accordingly, there is no genuine issue of material fact regarding the Defendant’s failure to train.

  • Conspiracy to deprive rights

“[A] plaintiff alleging a conspiracy to deprive her of her civil rights must establish that the alleged conspirators shared a common objective.” Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 368 (6th Cir. 2012) (emphasis in original). “‘While they need not produce direct evidence of a meeting of the minds, [plaintiffs] must come forward with specific circumstantial evidence that each member of the alleged conspiracy shared the same conspiratorial objective.'” Id. (quoting Hinkle v. City of Clarksburg, W. Va., 81 F.3d 416, 421 (4th Cir. 1996)).

Here, the illegal actions done against Plaintiff involved several officers performing different roles. From the illegal search and seizure, to the detention and interrogation, and to the prosecution stage, no officer stood against the blatant violations of Plaintiff’s rights. This therefore shows that the officers had a meeting of minds regarding said violations. It follows; there is no genuine issue of material fact regarding the Defendants’ conspiracy to deprive Plaintiff of his rights.

  1. Violation of equal protection rights

The Supreme Court has “recognized successful equal protection claims brought by a `class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam).

Here, Plaintiff belongs to a protected class. Plaintiff is perceived as part of the LGBTQ community, an openly gay male and is depicted as non-conforming straight male. Plaintiff asserts that it is on this basis that the Defendants committed the violations stated in the Amended Complaint. There is no other reasonable explanation for Defendants’ conduct towards Plaintiff in the entire interaction evidenced in the Amended Complaint. There is therefore no genuine issue of material facts regarding the discriminatory treatment of Plaintiff by the Defendants.

  • Invasion of privacy.

Federal courts exercising jurisdiction over diversity actions must apply the law of the state in which they are situated, as determined by that state’s highest court. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1937). Therefore, because the present case is a diversity action, this Court must apply the law of the state of Ohio, as declared by the Ohio Supreme Court, in order to determine whether Plaintiffs have stated a cause of action for invasion of privacy. The Ohio Supreme Court first recognized a cause of action for invasion of privacy in Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956), an action brought for wrongful intrusion upon a person’s seclusion. The court noted that the right of privacy is the right of a person to be let alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.

Here, the officers conducted a search on Plaintiff, Plaintiff’s car, and his personal items without probable cause. Plaintiff had the reasonable expectation of privacy in his vehicle. The facts in the Amended Complaint clearly depict in pertinent detail how his privacy was violated by the Defendants. There is therefore no genuine issue of material fact regarding the invasion of Plaintiff’s privacy by the Defendants.

WHEREFORE, in light of the foregoing, Plaintiff prays that this Court grants Plaintiff’s Motion for Summary Judgment and grant the prayers stated in the Amended Complaint. Plaintiff further prays for any other Order this Court deems just and fair in Plaintiff’s favor.

Dated: __________

______________________________

Philip M. Waseleski

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: _____________         

______________________________

Philip M. Waseleski

Plaintiff, pro se