# Croskey v. Wheeler

> District Court, N.D. Ohio · September 23, 2019

URL: https://www.frixlaw.com/law-library/cases/10367537

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** September 23, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTONIO G. CROSKEY, ) CASE NO.: 1:18 CV 1476
)
Plaintiff, ) JUDGE DONALD C. NUGENT
)
v. )
) MEMORANDUM OPINION
DETECTIVE PERRY WHEELER, ef al., )
)
Defendants. )

This matter is before the Court on the Defendants’ Motion for Summary Judgment. (ECF
#12). For the reasons that follow, Defendants’ Motion for Summary Judgment (ECF #12) is
granted.
FACTS!
Plaintiff Antonio Croskey filed this action on June 29, 2018, against Detective Perry
Wheeler and the City of Mansfield, Ohio asserting three federal claims including violation of 42
U.S.C. § 1983 based upon race, excessive force during arrest and failure to provide timely medical
care (Count 1); the City’s failure to train and deliberate indifference (Count 2); and violation of 42
U.S.C. § 1985 (Count 3). Plaintiff also asserts state law claims of assault (Count 4); misuse and
abuse of process (Count 5) and intentional infliction of emotional distress. (Count 6) (See ECF
Except as otherwise noted, the factual summary is based solely on the undisputed facts set
forth in the parties’ statements of facts, the Plaintiff's Complaint, and the affidavits and
other evidence filed with the Court as part of the summary judgment motion briefing.
Those facts which are contested and have some support through submitted affidavits or .
other evidence will be addressed in the body of the opinion and shall be construed in the
light most favorable to the Plaintiff as required under the Summary Judgment standards.

#1yY
All of Plaintiff's claims arise from the circumstances surrounding his arrest on August 31,
2016. In August of 2016, Defendant Wheeler, a detective with the City of Mansfield Police
Department, was part of a multi-jurisdictional task force called the Metrich Enforcement Unit
(“MEU”) which was consisted of officers from various law enforcement agencies in and around
Richland County. The City of Mansfield had requested the assistance of MEU to identify dealers
and distributors of fentanyl laced heroin that had been associated with a high number of deaths and
drug overdoses in Mansfield.
Detective Wheeler was familiar with Plaintiff, having encountered him in the course of
various drug investigations in the Mansfield area. As part of its investigation, the MEU obtained
heroin from Plaintiff which was tested and found to have a high concentration of acrylfentanyl.
The MEU was also informed that Plaintiff possessed one or more weapons that he either had in his
possession or at the location of his heroin distribution base, a motel at 880 Laver Road. Based on
this investigation, a search warrant was obtained for 880 Laver Road. On August 31, 2016,
Detective Wheeler and his partner, Detective Nicole Gearhart, were conducting surveillance
operations prior to the execution of the search warrant at 880 Laver Road. Another member of the
MEU, Richland County Sheriff's Deputy Meyers, assisted in his marked patrol car and was
instructed to make a “felony car stop” if Plaintiff was observed driving his car.
It turned out that Plaintiff was observed driving his car toward 880 Laver Road, and
Plaintiff also named J ane/I ohn Does as defendants but has not identified them by name
following completion of discovery. As such, the Jane/John Doe defendants will be
dismissed.

Deputy Meyers activated his emergency lights and attempted to conduct a felony car stop.
However, Plaintiff refused to pull over and continued driving into the parking lot of the motel at
880 Laver Road. Plaintiff stopped the car in front of his room and jumped out of the car, leaving
two children in the back of the car. Deputy Meyers ordered Plaintiff to get on the ground and told
him he was under arrest. Plaintiff declined to follow instructions and instead ran away toward
Laver Road. At that time, Detectives Wheeler and Gearhart were in a wooded area near the motel
maintaining a perimeter near the motel, as Plaintiff had a history of fleeing when confronted by
police.
Detectives Wheeler and Gearhart observed Plaintiff fleeing and Deputy Meyers pursuing
him. Deputy Meyers also had a canine who was dispatched to help subdue Plaintiff, but for
unknown reasons the canine failed to engage Plaintiff and simply ran along beside Plaintiff. After
observing the canine failure, Detectives Wheeler and Gearhart also began pursuing Plaintiff. As
Detective Wheeler was getting closer to Plaintiff, he observed Plaintiff reach toward his
waistband. Due to the information that Plaintiff may be armed, Detective Wheeler drew his service
weapon and held it in his right hand as he ordered Plaintiff to get on the ground. Plaintiff slipped
and fell and immediately got back up and turned toward Detective Wheeler in an “aggressive
stance.” At that point Detective Wheeler felt that an attack was imminent, so he struck Plaintiff on
the top of his head with the butt of his service weapon. Plaintiff fell to the ground and the officers
were able to place the Plaintiff in handcuffs. (Wheeler Aff., ECF #12-1, {] 15-26) Detective
Gearhart confirms that Detective Wheeler drew his service weapon and held it in his right hand
while ordering Plaintiff to get on the ground. She further states that at that point Plaintiff slipped
and fell and immediately got back up and assumed a “fighting stance,” turning quickly toward

Detective Wheeler at which point Detective Wheeler struck Plaintiff believing that “an attack was
imminent.” (Gearhart Aff., ECF #13-1, 16-18)
Plaintiff asserts that he ran because he was in fear for his life when he saw so many white
officers holding guns and after allegedly having been beaten in 2008 by a Mansfield police officer.
He also states that he was not reaching for a weapon but was holding up his shorts. Finally, he
contends that he did not slip and fall, but was tired from running and turned around because he
was at a wall and was not in an aggressive stance nor did he show any aggression. (Plaintiff Aff.,
ECF #17-1, 49 8, 9, 17, 19) After Plaintiff was handcuffed it was determined that Plaintiff was not
armed.
Because Plaintiff was bleeding from a cut on his forehead, the arresting officers called the
Mifflin Township Fire Department and Plaintiff was examined by an EMT and was then
transported to the Richard County Jail. The jail refused to accept Plaintiff until he was medically
cleared by a physician. Accordingly, Plaintiff was taken to Ohio Health in Mansfield where he
received six staples to close the laceration on his head. Thereafter, Plaintiff was transported back
to Richard County Jail. Following Plaintiffs arrest, the search warrants were executed on the
motel room and Plaintiff was charged with a number of drug felonies as well as misdemeanor
offenses associated with child endangering. Plaintiff plead guilty and is presently serving a Six-
year prison term.

_ Plaintiff filed a complaint with the Mansfield Police department alleging unlawful use of
force in connection with his August 31, 2016 arrest. A use of force report was filed and a post-use
of force investigation was conducted. The investigation found that Detective Wheeler’s actions
and response were reasonable due to the circumstances and complied with the guidelines of the

division’s response to resistance/aggression continuum. Plaintiff received a letter from Police
Chief Kenneth Coontz dated November 14, 2016, that informed him that the investigation into his
complaint alleging use of force by Mansfield Police Detectives of the MEU was concluded and
that after review of all reports and statements detailing the incident, the complaint against
Detective Gearhart was determined to be “not involved” and the complaint against Detective
Wheeler was determined to be “not sustained,” however remedial training was issued to Detective
Wheeler. (ECF #17-6).
More than a year and a half later, Plaintiff filed the instant complaint. Defendants
Detective Wheeler and the City of Mansfield now move for summary judgment. Plaintiff has
opposed the motion and Defendants have filed a reply brief in support of the motion. Defendants’
Motion for Summary Judgment is fully briefed and ready for decision.
STANDARD OF REVIEW
Summary judgment is appropriate when the court is satisfied “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). The burden of showing the absence of any such “genuine issue” 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 v. Catrett, 477 U.S. 317, 323 (1986) (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, Inc., 477
U.S. 242, 248 (1986). Determination of whether a factual issue is “genuine” requires

consideration of the applicable evidentiary standards. The court will view the summary judgment
motion in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Summary judgment should be granted if a party who bears the burden of proof at trial does
not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937,
941 (6" Cir. 1995) (citing Celotex, 477 U.S. at 322). Accordingly, “[t]he mere existence of a
scintilla of evidence in support of the plaintiffs position will be insufficient; there must be
evidence on which the jury could reasonably find for the plaintiff.” Copeland v. Machulis, 57
F.3d 476, 479 (6" Cir. 1995) (citing Anderson, 477 U.S. at 252). Moreover, if the evidence
presented 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 (citations omitted). In most
civil cases involving summary judgment, the court must decide “whether reasonable jurors could
find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict.” □□□ at
252.
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmover. The nonmoving party may not simply rely on its pleadings, 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, 149 (6" Cir. 1995). FED. R. CIV. P. 56(e) states:
When a motion for summary judgment is made and supported as provided in this
rule, an adverse party may not rest upon the mere allegations or denials of the
adverse party’s pleading, but the adverse party’s response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is a
genuine issue for trial.
The Federal Rules identify the penalty for the lack of such a response by the nonmoving party as

an automatic grant of summary judgment, where otherwise appropriate. Jd.
In sum, proper summary judgment analysis entails “the threshold inquiry of determining
whether there is the need for a trial--whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson, 477 U.S. at 250.
ANALYSIS
In their Motion for Summary Judgment, Detective Wheeler argues that he is entitled to
qualified immunity as to all of Mr. Croskey’s federal claims and that Mr. Croskey has otherwise
failed to present evidence sufficient to withstand summary judgment. The City of Mansfield
argues that Mr. Croskey has failed to assert any valid claim against the City. Further, both
Defendants argue that as Plaintiff has been unable to establish a federal claim, the Court should
decline to retain jurisdiction over his state law claims.
A. Plaintiff's Section 1983 Claims
Moving first to Plaintiff's § 1983 claims against Detective Wheeler, Plaintiff asserts that
Detective Wheeler violated § 1983 based upon race in violation of the equal protection clause; by
using excessive force in effectuating his arrest in violation of the 4” Amendment; and by failing to
provide Plaintiff with timely medical care. In order to prevail on a claim brought pursuant to §
1983, a plaintiff must establish by a preponderance of the evidence that a person acting under the
color of law deprived him of a right secured by the United States Constitution or the laws of the
United States. Smoak v. Hall, 460 F.3d 768, 777 (6th Cir. Tenn. 2006). A violation of § 1983
must be intentional or knowingly committed in order to be compensable. A negligent or reckless
deprivation is not sufficient. Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir. Mich. 1999). Further,

an injury caused by mere negligence, that does not rise to the level of a constitutionally protected
interest is not compensable under §1983. See Collins v. City of Shaker Heights, 503 U.S.115
(1992). □

Government officials are protected from liability for civil damages, including those that
arise under §1983, “insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555
U.S. 223, 231 (2009). Qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
To determine whether qualified immunity applies in a given case, we use a two-step
analysis: (1) viewing the facts in the light most favorable to the plaintiff, we determine whether the
allegations give rise to a constitutional violation; and (2) we assess whether the right was clearly
established at the time of the incident. Campbell v. City of Springboro, Ohio, 700 F.3d 779, 786
(6th Cir. Ohio 2012); see also Saucier v. Katz, 533 U.S. 194, 201 (2001). We can consider these
steps in any order. Pearson v. Callahan, 555 U.S. 223, 236 (2009).
1. Plaintiff's Equal Protection Claim
While Plaintiff alleges a § 1983 claim based upon race, neither the Complaint nor
Plaintiff's opposition to Defendants’ Motion for Summary Judgment offers specific conduct that
supports his claim that he was denied equal protection of the law based upon his race. Plaintiff's
entire claim seems to be that he is African American and the officers involved in his arrest on
August 31, 2016, were white. He further states that Detective Wheeler and the City of Mansfield
have a history and/or policy of unlawful assault and use of excessive force upon black suspects and
detention of such suspects without medical treatment. (Complaint, 12-13J) Plaintiff does not

explicitly state or show any evidence that white suspects are treated more favorably than black
suspects. While Plaintiff does not use the terms “selective enforcement” or “racial profiling” no
other recognized claim seems to fit this situation.
As the Supreme Court has stated: “[t]he central purpose of the Equal Protection Clause of
the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of
race.” Washington v. Davis, 426 U.S. 229, 239 (1976). The Equal Protection Clause prohibits the
States from making distinctions that burden a fundamental right, target a suspect class or
intentionally treat one differently from others similarly situated without any rational basis for the
difference. Vacco v. Quill, 521 U.S. 793, 799 (1997). In order to maintain an equal protection
claim, a plaintiff must show that the defendant acted with a discriminatory purpose, which means
proving that the defendant undertook a course of action “because of, not merely in spite of, the
action’s adverse effects upon an identifiable group.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
Although the government retains broad discretion in deciding whom to arrest and prosecute, “[t]he
Constitution prohibits selective enforcement of the law based on considerations such as race.”
Whren vy. U.S., 517 US. 806, 813 (1996). Selective enforcement can lead to section 1983 liability
if the plaintiff can show purposeful discrimination. The presence of probable cause does not bar an
equal protection claim. Jd.
To establish a claim of selective enforcement based on race, the plaintiff must show 1) a
government official singled the plaintiff out as belonging to a certain race for arrest even though
the same government official decided not to arrest other similarly situated persons not belonging to
the plaintiffs race; 2) the official initiated the arrest with a discriminatory purpose in mind; and 3)
the arrest had a discriminatory effect upon the racial group to which the plaintiff belongs.

Gardenhire v. Schubert, 205, F.3d 303, 319 (6th Cir. 2000). In order to satisfy the first and third
elements of this test, a plaintiff must make a prima facie showing that similarly situated persons
outside of his race were not arrested. Jd. He can do so by naming a similarly situated individual
who was not investigated, or through the use of statistical or other evidence. Farm Labor
Organizing Comm. V. Ohio State Highway, 308 F.3d 523, 534 (6" Cir. 1997).
Here Mr. Croskey has not identified a similarly situated individual outside of his race that

was not investigated or arrested by Defendants for distributing heroin laced with fentanyl nor did
he provide any statistical or other evidence to demonstrate that he was singled out because of his

race or was treated differently by Detective Wheeler or the City of Mansfield because of his □□□□□□
Moreover, Plaintiff has not produced any evidence to show that Detective Wheeler purposely
investigated and arrested Plaintiff because of his race. As such, Plaintiff has failed to establish an
equal protection violation.
2. Plaintiff's Excessive Force Claim
Excessive force claims are analyzed under the Fourth Amendment's reasonableness standard.
See Graham v. Connor, 490 U.S. 386, 395 (1989). This standard encompasses “a built-in measure
of deference to the officer's on-the-spot judgment about the level of force necessary in light of the
circumstances of the particular case.” Burchett v. Kiefer, 310 F.3d 937, 944 (6th Cir. Ohio 2002)
Plaintiff asserts in his opposition to summary judgment that summary judgment should be
denied because Defendants allegedly did not provide complete responses to discovery
requests. As such, he contends that an inference should be made that the withheld
discovery would be favorable to Plaintiff necessitating denial of Defendants’ motion for
summary judgment. However, discovery closed on May 1, 2019 and Plaintiff never
moved to compel the allegedly incomplete discovery, nor did Plaintiff move for
additional time to obtain evidence or other relief under Rule 56(d). As such, Plaintiff has
waived his arguments based upon incomplete discovery.
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(citing Graham, 490 U.S. at 396). It “allow[s] for the fact that police officers are often forced to
make split-second judgments - in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular situation." Graham, 490 U.S.
at 396-97. “An officer should be entitled to qualified immunity if he made an objectively
reasonable mistake as to the amount of force that was necessary under the circumstances with
which he was faced.” Solomon v. Auburn Hills Police Dept., 389 F.3d 167, 175 (6th Cir. Mich.
2004) (citation omitted). The factors considered in assessing a constitutional excessive force claim
include the particular facts and circumstances of each case. the severity of the crime, the threat
posed by the suspect, and whether the suspect is “actively resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at 396. “The ‘reasonableness’ of the particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham, 490 U.S. at 396.
In this case, officers assigned to the MEU were attempting to arrest Mr. Croskey on serious
charges in connection with an ongoing MEU investigation into the distribution of fentanyl laced
heroin, which was connected to many overdose deaths in the Mansfield area. Mr. Croskey ignored
all commands from the officers on scene, refused to stop his car as directed, refused to submit to
arrest and was actively attempting to evade arrest by running away from Deputy Meyers. The fact
that Plaintiff was fleeing caused Detectives Wheeler and Gearhart to join the foot pursuit. Plaintiff
ignored Detective Wheeler’s instructions to stop and put his hands up. Rather, Plaintiff reached for
his waist and the detectives could not see why he was grabbing at his waist. They had information
that Mr. Croskey could be armed. When Mr. Croskey suddenly stopped and turned around when
Detective Wheeler was right behind him, Detective Wheeler thought that an attack was imminent

1]

and hit him once with the but of his gun that he was holding in his right hand. While Plaintiff states
that he did not turn around in an aggressive manner and grabbed his waist in order to hold up his
shorts, it was not objectively unreasonable for a police officer, who had previous information that
Plaintiff may be armed, to believe that Plaintiff was reaching for a gun at his waist instead of his
shorts. Further, Plaintiffs actions in disregarding instructions and fleeing caused tensions to
escalate. In the totality of these circumstances, Detective Wheeler’s actions were objectively
reasonable. Accordingly, Plaintiff has failed to establish a constitutional violation on the part of
Detective Wheeler for excessive force.
3. Plaintiffs deliberate indifference claim.
The Eighth Amendment forbids prison officials from “unnecessarily and wantonly
inflicting pain” on an inmate by acting with “deliberate indifference” toward the inmate's serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Pretrial
detainees are analogously protected under the Due Process Clause of the Fourteenth Amendment.
Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L-Ed.2d 447 (1979); Roberts v. City of Troy,
773 F.2d 720, 723 (6" Cir. 1985). Whether a convicted prisoner or a pretrial detainee, deliberate
indifference to one's need for medical attention suffices for a claim under 42 U.S.C. § 1983.
Roberts, 773 F.2d at 723. Prison officials' deliberate indifference violates these rights “[w]hen the
indifference is manifested by ... prison guards intentionally denying or delaying access to medical
care ....” fora serious medical need. Estelle, 429 U.S. at 104, 97 S.Ct. 285. A constitutional claim
for inadequate medical care has objective and subjective components. Farmer v. Brennan, 511
ULS. 825, 834, 114 S.Ct. 1970, 128 L-Ed.2d 811 (1994). The objective component requires the
existence of a “sufficiently serious” medical need. Jd. The subjective component requires a plaintiff

12

to show that officials have “a sufficiently culpable state of mind in denying medical care,” which is
normally defined as “deliberate indifference.” Id. Deliberate indifference “entails something more
than mere negligence,” and requires that “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Jd. at 835, 837, 114 S.Ct. 1970.
In this case Plaintiff does not allege that he was denied treatment, just that his treatment
was slightly delayed. Plaintiff was evaluated at the scene of his arrest by the EMT. Instead of going
immediately to the hospital for treatment, the officers took him to the Richland jail, where jail
personnel refused to take Plaintiff until he was treated at the hospital. At that point Plaintiff was
taken to the hospital where he received six staples. The appropriate medical treatment was
completed before Plaintiff was incarcerated.
The Sixth Circuit has determined that a two hour delay in obtaining medical treatment for
an arrestee’s obviously swollen and broken hand did not rise to the level of deliberate indifference
to an arrestee’s serious medical needs, as required to establish a Fourteenth Amendment deliberate
indifference claim against arresting officers even if the officer’s should have known the injury was
serious and required medical attention. Hubbard v. Gross, 199 Fed. Appx. 433, 438 (6" Cir. 2006)
The Court determined that the Plaintiff presented no evidence to show that his broken hand was so
serious that a two hour delay in receiving treatment was objectively unreasonable. Similarly, Mr.
Croskey has not presented any evidence to show that his cut was so serious that the slight delay
caused by a stop at the Richland jail before going for treatment was objectively unreasonable. In
order to support a deliberate indifference claim, a plaintiff must present evidence that he was
“incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834.

13

Here Plaintiff received adequate and appropriate treatment before he was incarcerated at the
Richland jail. Based on these circumstances, Plaintiff has not established a deliberate indifference
claim.
B. Municipal Liability-Failure to Train .
In Count Two of his Complaint, Plaintiff asserts a claim entitled “Failure to Train and
Deliberate Indifference” against the City of Mansfield. (ECF 1, p.9) In this claim, Plaintiff alleges
that under the City’s policies, regulations, and customs, abuse and the use of excessive force by the
Mansfield Division of Police has become the norm, and the same is condoned and uncontrolled by
the City. Plaintiff further asserts that the City has failed to properly train its police officers. (Id.
19-21)
Local governments may not be sued under 42 USC. § 1983 for an injury inflicted solely by
employees or agents under a respondeat superior theory of liability. See Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691 (1978). “Instead, it is when execution of a government's policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is responsible under §
1983.” Id. at 694. A municipality can, therefore, be held liable when it unconstitutionally
“implements or executes a policy statement, ordinance, regulation, or decision officially adopted
and promulgated by that body's officers.” Id. at 690; see also DePiero v. City of Macedonia, 180
F.3d 770, 786 (6th Cir. Ohio 1999). A plaintiff must prove (1) the existence of a clear and
persistent pattern of [illegal activity]; (2) notice or constructive notice on the part of the
[defendant]; (3) the [defendant's] tacit approval of the unconstitutional conduct, such that their
deliberate indifference in their failure to act can be said to amount to an official policy of inaction;

14

and (4) that the [defendant’s] custom was the “moving force” or direct causal link in the
constitutional deprivation. Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6" Cir. Tenn.
2005).
Regarding municipal liability under § 1983, the Supreme Court has held that if the officer
inflicted no constitutional injury on a person, then it is “inconceivable” that the City could be liable
to the person. DeMerrell v. City of Cheboygan, 206 Fed. Appx. 418, 429 (6" Cir. Mich. 2006)
(citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)(per curiam)). If “a person has
suffered no constitutional injury at the hands of the individual police officer, the fact that
department regulations might have authorized the use of constitutionally excessive force is quite
beside the point.” City of Los Angeles v. Heller, 475 U.S. 796, 799; Peet v. Detroit, 502 F.3d 557,
In this case, as noted above, Mr. Croskey has not suffered a constitutional injury. The
failure to establish a constitutional injury inflicted by Detective Wheeler renders Mr. Croskey’s
claims against the City meritless. Accordingly, the City is entitled to summary judgment as a
matter of law.
C. Plaintiff’s Section 1985 Claim
In Count Three of his Complaint, Plaintiff asserts that “the defendants, acting in concert
with themselves and unnamed individuals, constitute conspiracy of defendants” ... “to deprive
plaintiff of his rights in violation of the Constitution of the United States and 42 U.S.C. Section
1985.” (ECF #1, § 27)
While Plaintiff fails to explain which sub-section of Section 1985 his claim is based upon,
the Court will presume that he relies on Section 1985(3). Section 1985(3) prohibits a conspiracy
“for the purpose of depriving either directly or indirectly, any person or class of persons of the

15

equal protection of the laws or of equal privileges and immunities under the laws.” 42 U.S.C. §
1985. To prevail on a § 1985(3) claim, a plaintiff must prove “ ‘(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges or immunities of the laws; (3) an act in furtherance of
the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any
right or privilege of a citizen of the United States.’ ” Vakilian v. Shaw, 335 F.3d 509, 518 (6th
Cir.2003) (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 103 S.Ct.
3352, 77 L.Ed.2d 1049 (1983)). Moreover, the Supreme Court has stated that “[t]he language
requiring intent to deprive of equal protection, or equal privileges and immunities, means there
must be some racial or perhaps otherwise class-based, invidiously discriminatory animus behind
the conspirators’ actions.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). In his complaint or his
brief in opposition to summary judgment, Mr. Croskey has failed to allege any facts sufficient to
establish a conspiracy claim under § 1985(3). Mr. Croskey has produced no evidence, beyond his
own belief, to demonstrate his arrest on the night of August 31, 2016 was in any way motivated by
racial or other class-based animus. See Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th
Cir. 2005) and Bass v. Robinson, 167 F.3d 1041, 1051 (6™ Cir. 1999) (both upholding dismissal of
plaintiff's conspiracy claim, finding failure to show that police officers’ use of excessive force was
motivated by any invidious class-based animus). Because Mr. Croskey has not demonstrated either
a conspiracy or an invidiously discriminatory animus on the part of Defendants, Defendants are
entitled to summary judgment on Plaintiff's § 1985 claim.

16

D. Plaintiff's State Law Claims*
Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental
jurisdiction over state law claims if it has dismissed all claims over which it has original
jurisdiction. The Sixth Circuit agrees that dismissal of state law claims in this situation is the
preferred course of action: “[i]f the federal claims are dismissed before trial, the state claims
generally should be dismissed as well.” Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir. 2009) (citing
Wojnicz v. Davis, 80 Fed_Appx. 382, 384-85 (6th Cir.2003) (citation omitted). Having determined
that Defendants are entitled to summary judgment on all of Plaintiff's federal claims, the Court
declines to exercise supplemental jurisdiction over Mr. Croskey’s remaining state law claims and
those claims are dismissed.
CONCLUSION
For the reasons set forth above, the Defendants’ Motion for Summary Judgment (ECF #12)
is GRANTED as to Plaintiff's federal claims (Count One, Two, and Three). Plaintiff's state law
claims are dismissed. IT IS SO ORDERED.

DATED: 3 Q United States District Judge

□□
The Court is treating Plaintiffs claim for abuse of process in Count Five, as a state law
claim as the Sixth Circuit has not recognized the existence of a § 1983 abuse of process
claim. See Rapp v. Dutcher 444, 448 (6th Cir. 2014); Voyticky v. Vill. of Timberlake,
Ohio, 412 F.3d 669, 676 (6th Cir.2005)

17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10367537. Public record. Not legal advice.