Calvey v. Village of Walton Hills

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Thomas J. Calvey, ) CASE NO. 1:18 CV 2938

)

Plaintiff, ) JUDGE PATRICIA A. GAUGHAN

)

Vs. )

)

Village of Walton Hills, et al., )

) Memorandum of Opinion and Order

Defendants. )

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

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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.

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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

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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

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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

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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:

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[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).

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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, namely, his right to liberty, safety, property,

privacy and welfare.”

(A) Village of Walton Hills Police Department

Plaintiff has asserted both of his federal claims against the Village of Walton Hills Police

Department. Defendant argues that the Village of Walton Hills Police Department is not sui

juris and, therefore, cannot be sued. The Court agrees and plaintiff does not provide any

argument to the contrary. It is well-established that police departments “are not sui juris and,

therefore, cannot sue or be sued. They are merely sub-units of the municipalities they serve.”

Deir v. Lake County, 2012 WL 1142467, *3 (N.D. Ohio April 4, 2012) (internal citations

omitted). See also Carmichael v. City of Cleveland, 571 Fed. App’x 426, 435 (6th Cir. 2014);

Elkins v. Summit County, Ohio, 2008 WL 622038, *6 (N.D. Ohio Mar. 5, 2008). Accordingly,

the federal claims1 asserted against the Village of Walton Hills Police Department are dismissed.

(B) Village of Walton Hills

Plaintiff also brings his § 1983 claims against the Village of Walton Hills and

Kwiatkowski and Cercek (“the individual defendants”) in their official capacities. When a

1 Likewise, plaintiff’s state law claims asserted against the Village of Walton Hills

Police Department are dismissed. See Harris v. Sutton, 918 N.E.2d 181, n. 1

(Ohio 8th App. Dist. Aug. 13, 2009)(“the police department is not sui juris and

cannot be sued as a separate entity. It is subsumed within any judgment relating

to the city.”)

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plaintiff sues local government officials and employees in their official capacity, the suit is

treated as one against the municipality. See, e.g., Kentucky v. Graham, 473 U.S. 159, 166 (1985)

(“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the

entity.”). It is well-established that a municipality

‘cannot be held liable solely because it employs a tortfeasor—or, in other

words, a municipality cannot be held liable under § 1983 on a respondeat

superior theory.’ Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978).

Rather, liability attaches where the unconstitutional action ‘implements or

executes a policy statement, ordinance, regulation, or decision officially

adopted and promulgated’ by municipal officers, or where the deprivation

results from governmental “custom.” Id. The governmental action must be

‘the moving force’ behind the constitutional violation. Id.

Hanson v. Madison County Detention Center, 736 Fed. App’x 521, 541 (6th Cir. 2018).

A plaintiff can make a showing of an illegal policy or custom by demonstrating one of

the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an

official with final decision-making authority ratified illegal actions; (3) the existence of a policy

of inadequate training or supervision; or (4) the existence of a custom of tolerance or

acquiescence of federal rights violations. Thomas v. City of Chattanooga, 398 F.3d 426, 429

(6th Cir. 2005).

As defendants point out, plaintiff has failed to allege a claim under Monell regarding any

policy, custom, or failure to train. In response, plaintiff argues that the evidence establishes that

there were actions “taken by officials with final decision-making authority and (given their

frequency) show a tolerance of federal violations.” However, plaintiff failed to allege in his

Complaint the existence of a policy or custom of tolerance for federal rights violations, and has

not sought leave to amend his Complaint to add such allegations. Moreover, even assuming

plaintiff had alleged a Monell claim, where, as discussed below, no constitutional violation

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occurs, the municipality “likewise cannot be held liable.” Hanson, 736 Fed. App’x at 541.

Therefore, any § 1983 claims asserted against the Village of Walton Hills and the

individual defendants in their official capacities are dismissed.

(C) Kwiatkowski and Cercek

Plaintiff also asserts his § 1983 claims against Kwiatkowski and Cercek in their

individual capacities. To prevail on a § 1983 claim, plaintiff must prove 1) the deprivation of a

right secured by the Constitution or laws of the United States which was 2) caused by a person

acting under the color of state law. Winkler v. Madison County, 893 F.3d 877 (6th Cir. 2018)

(citations omitted). Where, as here, the individual defendants assert qualified immunity, the

government officials may not be held liable if 1) the officers did not violate any constitutional

guarantees or 2) the guarantee, even if violated, was not clearly established at the time of the

alleged misconduct. Arrington-Bey v. City of Bedford Heights, 858 F.3d 988, 992 (6th Cir.

2017) (citations omitted). See also Maye v. Klee, 915 F.3d 1076, 1082 (6th Cir. 2019) (“In

analyzing whether an official is entitled to qualified immunity, we must make two

determinations: first, whether the plaintiff’s version of the facts alleges the deprivation of a

constitutional right; and second, whether that right was clearly established such that a reasonable

official would have known his actions were unconstitutional.”) Defendants argue that plaintiff

cannot establish that any constitutional right was violated or that such violation was clearly

established. For the following reasons, the Court agrees. Because plaintiff cannot establish the

violation of a clearly established constitutional guarantee, the § 1983 claims fail and individual

defendants are entitled to qualified immunity.

(1.) Procedural and Substantive Due Process (Count One)

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Plaintiff’s arguments on procedural and substantive due process both pertain to the

alleged deprivation of a property interest protected by the Fourteenth Amendment. The

procedural and substantive components of the Due Process Clause are distinct2 from each other

and have different objectives. Howard v. Grinage, 82 F.3d 1343, 1349 (6th Cir. 1996).

However, both “procedural and substantive due process claims require [plaintiff] to show that he

has a property interest that was deprived.” Wayne Watson Enterprises, LLC v. City of

Cambridge, 2018 WL 5099629, at *3 (6th Cir. Oct. 19, 2018). Accordingly, the Court will first

consider whether plaintiff had a constitutionally protected property interest.

Property interests “are not created by the Constitution” itself, but rather “they are created

and their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law.” Bd of Regents v. Roth, 408 U.S. 564, 577(1972). See

also Wayne Watson Enterprises, LLC, 751 Fed. App’x at 764.

Plaintiff argues that he had a property interest in both the residence and the enforcement

of his June 22, 2018 protection order. Plaintiff maintains that both of these property interests

2 Indeed, to prevail on a procedural due process claim under § 1983, a plaintiff

must establish that (1) he had a life, liberty, or property interest protected by the

Due Process Clause; (2) he was deprived of this protected interest; and (3) he was

not afforded adequate procedural rights prior to the deprivation of this interest.

Wedgewood Ltd. Partnership I v. Township of Liberty, Ohio, 610 F.3d 340, 349

(6th Cir. 2010).

In order to prevail on a substantive due process claim under § 1983, a plaintiff

must establish that an “arbitrary and capricious government action deprived [him]

of a constitutionally protected property interest.” Warren v. City of Athens, 411

F.3d 697, 707 (6th Cir. 2005). See also Dinwiddie v. Beshear, 2019 WL

4009835, *2 (6th Cir. 2019).

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were created by the June 22, 20183 ex parte civil protection order against James Calvey, which

granted plaintiff “exclusive possession of the residence.” Plaintiff argues that because of this

property interest, it was not only improper for the police to remove him from the residence on

July 29, 2018, but also for the police to allow James Calvey back into the residence after July 29,

2018.

Defendants maintain that plaintiff did not have a property interest in either the residence

or the enforcement of the protection order against James Calvey. They argue that since plaintiff

did not have any legal title to the residence and Leona Calvey, who was the titled owner, had a

valid protection order against plaintiff, the police were permitted to remove him from the

residence. Defendants also maintain that plaintiff did not have a property interest in the

enforcement of his June 22, 2018 protection order because its enforcement was “discretionary

under Ohio law.”

Upon review, the Court finds that plaintiff did not have a constitutionally protected

property interest in either the residence or the enforcement of the June 22, 2018 protection order.

As to plaintiff’s purported property interest in the residence, it is undisputed that plaintiff was

not the titled owner of the residence. Plaintiff did not have a lease or similar contract which

3 Plaintiff also raises arguments about his property interest in the January 2019

final protection order. However, neither Kwiatkowski or Cercek played a role in

the enforcement of the final protection order or the reluctance of the police to

remove Leona Calvey from the property after her protection order was dismissed.

Indeed, it was Sergeant Walsh, who is not a named defendant, who 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.”

Kwiatkowski and Cercek cannot be held liable for actions of another officer.

Indeed, it is well-established that personal involvement of the defendant in

alleged constitutional deprivations is a prerequisite to an award of damages under

Section 1983. Turner v. City of Taylor, 412 F.3d 629, 643 (6th Cir. 2005).

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would have otherwise created a property interest in the residence. Rather, plaintiff was simply

staying with his mother and brother in their4 home while he was recovering from cancer

treatment. His mother, who was the owner of the residence, had a valid protection order against

plaintiff, and the police chose to enforce5 it when asking him to leave.

Plaintiff maintains that the state court created a property interest in the residence via the

June 22, 2018 ex parte civil protection order because it granted him “exclusive possession” of

the residence. The Court finds this argument unavailing. Plaintiff has provided no support for

the proposition that the “exclusive possession” language contained in the civil protection order is

equated with a property interest under Ohio law. Moreover, the Ohio statute under which the

civil protection order was issued, O.R.C. §3113.31, noticeably does not provide for the creation

of a property interest. Indeed, this provision provides, in relevant part,

With respect to a petition involving family or household members, [a civil

protection order may] grant possession of the residence or household to

the petitioner or other family or household member, to the exclusion of the

4 The Court acknowledges that plaintiff has placed great emphasis on how his

brother and mother allegedly bought this home through fraudulent means.

However, these actions were taken by private individuals, not state actors.

Regardless of whether these accusations are true or not, the undisputed fact

remains, and plaintiff concedes, that he was not the titled owner of the property.

5 Plaintiff attempts to create an issue of fact by repeatedly suggesting that he did

not violate the civil protection order Leona Calvey had against him and, therefore,

the police had no basis to remove him from the residence. The Court disagrees.

Viewing the evidence in a light most favorable to the plaintiff, it is clear that

plaintiff was in violation of Leona’s protection order. Leona Calvey’s civil

protection order required that plaintiff was to remain 500 feet away from her, and

not have any contact with her or interfere with her residence. The fact that Leona

Calvey and plaintiff were residing in the same home, standing alone, establishes

that plaintiff was in violation of the protection order. Moreover, regardless of

whether or not plaintiff had violated Leona Calvey’s protection order, because

plaintiff cannot establish a property interest in either the residence or the June 22,

2018 protection order, plaintiff’s due process claims fail.

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respondent, by evicting the respondent, when the residence or household

is owned or leased solely by the petitioner or other family or household

member, or by ordering the respondent to vacate the premises, when the

residence or household is jointly owned or leased by the respondent, and

the petitioner or other family or household member.

O.R.C. §3113.31(E)(1)(b) (emphasis added). Under this provision, where the respondent, i.e.

James Calvey, owns the property, the civil protection order may require him to vacate the

premises. It does not provide that James Calvey’s ownership of the residence is somehow

dissolved and transferred to plaintiff.

Plaintiff also suggests that his June 22, 2018 civil protection order somehow trumps

Leona Calvey’s ownership of the residence. However, plaintiff does not cite any legal authority

for the proposition that a domestic relations court can intentionally or unintentionally exclude a

property owner who is not a party to a civil protection order from her own residence.

Plaintiff points to Powell v. Morales,6 2006 WL 721354 (N.D. Ohio Mar. 17, 2006), to

support his position that he had a protected property interest in the residence. This case is

readily distinguishable. In Powell, the plaintiffs were legal residents of the property by virtue of

a lease. Id. at *6. It was this lease which “demonstrated a constitutionally protected property

interest in the Residence.” Id. Here, however, plaintiff did not have a leasehold interest in the

residence.

Similarly, the Court also finds that plaintiff had no property interest in the enforcement of

6 Plaintiff also briefly references Collins v. Clancy, 2014 WL 1653103 (S.D. Ohio

Apr. 23, 2014), but provides no analysis as to why it supports his position. The

Court has carefully reviewed this case and does not find that it lends any support

to plaintiff’s arguments. See Collins v. Clancy, 2014 WL 197839 (S.D. Ohio Jan.

15, 2014), report and recommendation adopted, 2014 WL 1653103 (S.D. Ohio

Apr. 23, 2014).

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his June 22, 2018 protection order against James Calvey. While the police had removed James

Calvey from the residence initially, it is undisputed that they were aware he had come back onto

the property once plaintiff left on July 29, 2018. Plaintiff argues this failure of the police to

enforce his June 22, 2018 protection order was a violation of his due process rights.

As noted above, property interests are created “by existing rules or understandings that

stem from an independent source such as state law.” Roth, 408 U.S. at 577. However, a plaintiff

“cannot possess a property interest in the receipt of a benefit when the state's decision to award

or withhold the benefit is wholly discretionary.” Med Corp., Inc. v. City of Lima, 296 F.3d 404,

409 (6th Cir. 2002).

Plaintiff relies upon the language contained in the June 22, 2018 civil protection order to

support his claim that he had a property interest in its enforcement. This order references O.R.C.

§3113.31, which, in relevant part, provides:

any officer of a law enforcement agency shall enforce a protection order

issued or consent agreement approved by any court in this state in

accordance with the provisions of the order or agreement, including

removing the respondent from the premises, if appropriate.

O.R.C., §3113.31(F)(4). The order also references O.R.C., §2935.03, which provides that if a

police officer:

has reasonable ground to believe that the offense of domestic violence

or the offence of violating a protection order has been committed and

reasonable cause to believe that a particular person is guilty of

committing the offense, it is the preferred course of action in this state

that the officer arrest and detain that person . . .

O.R.C. §2935.03(B)(3)(b).

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Plaintiff argues7 that the language contained in the civil protection order “clearly states

that law enforcement must enforce its terms and conditions.” While not well-articulated,

plaintiff’s argument appears to be that the mandatory language contained in the civil protection

order and the relevant ORC provisions create an entitlement that rises to the level of a protected

property interest for purposes of due process. For the following reasons, the Court disagrees.

The Supreme Court considered similar statutory language when determining whether a

plaintiff had a property interest in the enforcement of a restraining order. See Town of Castle

Rock v. Gonzales, 545 U.S. 748 (2005). In Castle Rock, the plaintiff asserted a violation of her

due process rights due to the police’s failure to enforce a restraining order against her husband.

Id. at 751. The Supreme Court reviewed the relevant state statutes, which contained language

that a police officer “shall use every reasonable means to enforce a restraining order” and that a

police officer “shall” make an arrest where there is probable cause that a violation of a

restraining order has occurred. Id. at 759. The Supreme Court concluded that “these provisions

of Colorado law [did not make] enforcement of restraining orders mandatory” and, therefore, the

plaintiff did not have a property interest in the order’s enforcement. Id. at 760, 766. The

Supreme Court also observed that such an entitlement would not “resemble any traditional

conception of property.” Id. at 766.

The Sixth Circuit has also confronted a similar issue. See Hudson v. Hudson, 475 F.3d

7 Plaintiff also asserts that the chief of police, Stanley Jaworski, “acknowledged

that law enforcement has no discretion as to how to enforce” a civil protection

order. This is not an accurate reading of Chief Jaworkski’s deposition testimony.

In his deposition, Chief Jaworski testified that the language contained in the civil

protection order did not explicitly provide for any police officer discretion.

However, as discussed above, the statutory provisions referenced by the civil

protection order do afford a degree of discretion to police officers.

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741 (6th Cir. 2007). In Hudson, the Sixth Circuit determined that the “enforcement of Tennessee

protective orders does not create a property interest protected by the Due Process Clause of the

Fourteenth Amendment.” Id. at 746. The Sixth Circuit reasoned that while the Tennessee

statute mandated that a police officer “shall” arrest an individual for violating a protective order,

the statute also allowed for a police officer to exercise some discretion and did not “specify the

precise action the officer must take when enforcing each and every protective order.” Id. at 744.

The Sixth Circuit concluded that it had “skepticism” that the enforcement of a protection order

could ever constitute a property interest, observing that “[i]mbuing these restraining orders with

constitutional property value, protected by the Due Process Clause, would needlessly interfere

with Tennessee’s choice of how to allocate the resources necessary to enforce its domestic

violence laws.” Id. at 746.

The Court finds that the same logic applies here. As in Castle Rock and Hudson, the

relevant O.R.C. provisions contain some mandatory language (“any officer of a law enforcement

agency shall enforce a protection order”), but also leave room for a police officer to exercise

discretion (“including removing the respondent from the premises, if appropriate,” “it is the

preferred course of action in this state that the officer arrest”). Because the manner of

enforcement was within the discretion of the police, plaintiff cannot claim a property interest in

the enforcement of the June 22, 2018 civil protection order. See Castle Rock , 545 U.S. at 756

(“A benefit is not a protected entitlement if officials may grant or deny it in their discretion.”).

Plaintiff argues that any reliance upon Castle Rock is “completely misplaced.” He asserts

that it is not the fact that the police did not arrest James Calvey, but the fact that the police were

aware he had returned to the residence, in violation of the protection order, and they did not

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remove him from the property so plaintiff could “regain exclusive possession.” Regardless of

which action plaintiff wanted the police to take (i.e. arrest versus removal from the residence),

because Ohio law affords discretion to police officers with respect to the enforcement of

protection orders, a property interest cannot be claimed. See Richardson v. Township of Brady,

218 F.3d 508, 517 (6th Cir. 2000) (a plaintiff “can have no legitimate claim of entitlement to a

discretionary decision”).

Accordingly, because plaintiff did not have a constitutionally protected property interest

in either the residence or the enforcement of the June 22, 2018 protection order, both his

procedural and substantive due process claims fail.

Morever, even if a constitutional violation has occurred, Kwiatkowski and Cercek would

still be entitled to qualified immunity unless the plaintiff is able to show that (1) the

constitutional right was clearly established at the time such that a reasonable official would have

understood that he was violating that right; and (2) the official’s action was objectively

unreasonable in light of the clearly established rights. Sample v. Bailey, 409 F.3d 689, 696–97

(6th Cir. 2005). Plaintiff wholly fails to address whether the guarantee violated was “clearly

established” at the time of the alleged misconduct. Rather, plaintiff summarily asserts that he

has “clearly established” a constitutionally protected property right existed and because the

events on July 28 and July 29, 2018 are “so fact specific,” a “jury must decide whether

Defendants’ actions were reasonable.” However, the law is clear that in order to show a

constitutional guarantee is “clearly established,” “a plaintiff must identify a case with a similar

fact pattern that would have given ‘fair and clear warning to officers’ about what the law

requires.” Arrington-Bey, 858 F.3d at 993 (citing White v. Pauley, 137 S.Ct. 548 (2017)). See

18

also Matthews v. Copeland, 2019 WL 3286176, *2 (6th Cir. 2019) (“A plaintiff can establish

that a right was clearly established by citing to cases of controlling authority in their jurisdiction

at the time of the incident or a consensus of cases of persuasive authority such that a reasonable

officer could not have believed that his actions were lawful.”)(internal quotations omitted)

Plaintiff does not identify any Sixth Circuit or Supreme Court case with a similar fact pattern

that would have given fair warning to Kwiatkowski and Cercek that their actions were in

violation of plaintiff’s due process rights.

Indeed, these officers were faced with competing protection orders – one which granted

“exclusive possession” of the residence to plaintiff and the other which prohibited plaintiff from

coming within 500 feet of the owner of said residence. Kwiatkowski made a good faith effort to

discern what his obligations were in terms of enforcement by contacting the village law director

and prosecutor. He also attempted to mediate between plaintiff and Leona Calvey and was able

to initially get them, with the agreement of plaintiff’s attorney, to reside at the residence

together. However, once the situation escalated between Leona and plaintiff, it was reasonable

for Kwiatkowski and Cercek to ask plaintiff to leave under threat of arrest, as Leona had a valid8

protection order against him. With respect to James Calvey, the police removed him from the

residence twice, on June 7, 2018 and again in January 2019, in compliance with plaintiff’s

protection orders. While James Calvey returned to the residence in the interim, plaintiff never

filed a police report, despite the recommendation of the police to do so. Under the facts

8 Plaintiff suggests that the officers should have discerned, despite a valid ex parte

protection order being in place, that any accusations Leona Calvey had made

against plaintiff were false. However, the fact that Leona Calvey’s protection

order was ultimately dismissed by the state court due to her lack of credibility has

no bearing on Kwiatkowski and Cercek’s decision to enforce it when it was valid.

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presented, plaintiff has failed to identify any legal precedent which suggests that these actions

were “plainly incompetent” or in violation of “clearly established law.” Mullins v. Cyranek, 805

F.3d 760, 765 (6th Cir. 2015).

Accordingly, as plaintiff has failed to identify a violation of any clearly established

constitutional right that a reasonable officer would have known at the time, the Court grants

summary judgment to Kwiatkowski and Cercek on Count One.

(2.) Right to Liberty, Safety, Property, and Privacy (Count Two)

In Count Two of the Complaint, plaintiff asserts a § 1983 claim for the “deprivation of

right to liberty, safety, property, and privacy.” Defendants argue that plaintiff has offered no

support for this claim and that this claim is duplicative of the due process claims contained

within Count One. The Court agrees. Beyond listing this claim in a heading, plaintiff provides

no argument or factual support for it in his brief in opposition. Accordingly, summary judgment

on this claim as to all defendants is proper. See, e.g., Wilson v City of Shaker Heights, 2017 WL

5125528, *7 (N.D. Ohio Nov. 2, 2017), affirmed by 741 Fed. App’x 312 (6th Cir. 2018); Fuller

v. Cuyahoga Metropolitan Housing Authority, 2007 WL 218724, n.3 (N.D. Ohio Jan. 25, 2007)

(“the Court is unaware of any claim for deprivation of the constitutional right to ‘liberty, health,

safety, privacy and welfare’ that exists separate and apart from a due process claim”), affirmed

by 334 Fed. App’x 732 (6th Cir. 2009).

II. State Law Claims9

(A) Ohio Constitutional Claims (Counts One and Two)

In Counts One and Two, plaintiff, without citing any specific provisions, asserts claims

9 Although the federal claims have been dismissed, this Court exercises its

discretion to consider the state law claims.

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under the Ohio Constitution. According to defendants, summary judgment is appropriate

because no private right of action exists under the Ohio Constitution. According to plaintiff,

there is a private constitutional remedy under Article I, Section 16 of the Ohio Constitution.

The Ohio Supreme Court has held that a provision under the Ohio Constitution only

creates a private cause of action if it is self-executing. See Provens v. Stark Cty. Bd. of Mental

Retardation & Developmental Disabilities, 594 N.E.2d 959, 966 (1992) (finding no private

constitutional remedy where Ohio Constitution itself did not provide for a civil damage remedy).

“A constitutional provision is self-executing when it is complete in itself and becomes operative

without the aid of supplemental or enabling legislation.” State v. Williams, 88 Ohio St. 3d 513,

521 (2000).

Article I, Section 16, of the Ohio Constitution provides: “All courts shall be open, and

every person, for an injury done him in his land, goods, person, or reputation, shall have remedy

by due course of law, and shall have justice administered without denial or delay. Suits may be

brought against the state, in such courts and in such manner, as may be provided by law.” Ohio

courts, in reviewing this provision, have consistently found that it is not self-executing and,

therefore, does not create a private course of action. See, e.g., Autumn Care Center, Inc. v. Todd,

22 N.E.3d 1105, 1109 (Ohio. App. 5th Dist. 2014); PDU, Inc. v. City of Cleveland, 2003-Ohio-

3671 at ¶21 (Ohio App. 8th Dist. 2003)(“The language of Article I, Sections 2, 11, and 16 is not

sufficiently precise to provide clear guidance to the courts with respect to enforcement of its

terms or application of its provisions”); Estate of Tokes v. Dept. of Rehabilitation and Corr.,

2019-Ohio-1794 at ¶29 (Ohio App. 10th Dist. 2019)(“Section 16 is not self-executing under its

own plain language”). Moreover, district courts within this circuit have also found that the Ohio

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Constitution does not provide a private cause of action under Article I, Section 16. See Moore v.

City of Cleveland, 388 F.Supp.3d 908, 919 (N.D. Ohio May 21, 2019) (“Ohio law does not

authorize private suits for violations of the Ohio Constitution.”); Gibson v. Mechanicsburg

Police Department, 2017 WL 2418317, *5 (S.D. Ohio June 2, 2017). Plaintiff fails to identify

any legal precedent to the contrary.

Consistent with this precedent, the Court finds that Article I, Section 16 does not create a

private cause of action. See Hagedorn v. Cattani, 715 Fed App’x 499, 509 (6th Cir.

2017)(cautioning courts to avoid “interpretations of state law that could greatly expand

liability”). Accordingly, plaintiff’s claims for violations of the Ohio Constitution found within

Counts One and Two are dismissed as to all defendants.

(B) Intentional Infliction of Emotional Distress (Count Three)

(1.) Village of Walton Hills

In Count Three, plaintiff alleges that the Village of Walton Hills is liable for intentional

infliction of emotional distress. Defendant argues that the Village of Walton Hills is immune

from liability because it is a political subdivision and none of the limited exceptions under

O.R.C. §2744.02 apply. According to plaintiff, immunity does not apply to this type of claim.

Upon review, the Court agrees with defendant. Ohio’s Political Subdivision Tort

Liability act provides for broad immunity to political subdivisions for claims of injury, death, or

loss to persons or property. O.R.C. §2744.02(A)(1). This immunity is subject to the five

exceptions,10 none of which are applicable to plaintiff’s claim.

10 These exceptions are injury, death, or loss to person or property caused by (1) the

negligent operation a motor vehicle; (2) the negligent performance of acts by

their employees with respect to proprietary functions of the political subdivisions;

(3) their negligent failure to keep public roads in repair and other negligent failure

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Plaintiff argues immunity only applies to negligent conduct, not the “gross negligence

and recklessness” displayed by the defendants. However, for a political subdivision, only the

exceptions to immunity apply to negligent conduct. See O.R.C. §2744.02(B). These exceptions

do not apply to the intentional torts of a political subdivision’s employees. Ohio ex rel. Faulker

v. City of Middletown, Ohio, 688 Fed. App’x 377, 380-381 (6th Cir. 2017) (finding the

exceptions contained under O.R.C. §2744.02(B) do not “expose municipalities to liability for the

intentional torts of municipal employees”). See also Wilson v. Stark County Dep't of Human

Services, 639 N.E.2d 105, 107 (Ohio 1994) (“There are no exceptions to immunity for the

intentional torts of fraud and intentional infliction of emotional distress as alleged in this case.”).

Therefore, Plaintiff's state law claim of intentional infliction of emotional distress against the

Village of Walton Hills fails as a matter of law. Accordingly, the Court grants summary

judgment in favor of the Village of Walton Hills11 on this claim.

(2.) Kwiatkowski and Cercek

Plaintiff also alleges that Kwiatkowski and Cercek are liable for intentional infliction of

emotional distress in their individual capacities. Defendants argue that plaintiff has presented no

to remove obstructions from public roads; (4) the negligence of their employees

that occurs within or on the grounds of, and is due to physical defects within or on

the grounds of, buildings that are used in connection with the performance of a

governmental function; and (5) any liability that is expressly imposed by the Ohio

Revised Code. O.R.C. §2744.02(B).

11 As with the federal claims, state law claims asserted against a defendant in his

official capacity are considered a claim against the municipality. See Warner v.

Wood County Sheriff's Dept., 2008 WL 4449450, *9 (N.D. Ohio Sept. 30, 2008)

(citations omitted) (“Chapter 2744 of the Ohio Rev. Code provides that a suit

against an employee of a political subdivision in the employee's official capacity

constitutes a suit against the political subdivision.”) Accordingly, because the

Village of Walton Hills is immune from liability under Count Three, the

individual defendants in their official capacities are immune as well.

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evidence to support a claim for intentional infliction of emotional distress.12 Plaintiff does not

directly address this argument and instead asserts that immunity under O.R.C. §2744.03 (A)(6) is

not available to these defendants.

Under Ohio law, to establish a prima facie case of intentional infliction of emotional

distress, a plaintiff must show that: (1) the defendant intended to cause, or recklessly caused, the

plaintiff serious emotional distress; (2) the defendant's conduct was “extreme and outrageous;”

and (3) the defendant's conduct was the proximate cause of the plaintiff's serious emotional

distress. Lopez v. American Family Ins. Co, 618 F. Appx. 794, 804 (6th Cir 2015) (citing Phung

v. Waste Mgmt., 71 Ohio St.3d 408, 644 N.E.2d 286 (Ohio 1994)). To be considered “serious

emotional distress” under Ohio law, there must be a psychic injury that is “both severe and

debilitating,” where “a reasonable person, normally constituted, would be unable to cope

adequately with a mental distress engendered by the circumstances of the case.” Lopez, 618

F.Appx. at 804-805.

Examples of serious emotional distress “include traumatically induced neurosis,

psychosis, chronic depression, or phobia.” Id. Proof of serious emotional distress “may be

offered in the form of expert medical testimony, but expert opinion is not indispensable. Lay

witnesses acquainted with the plaintiff may also testify to significant changes that they have

observed in the emotional or habitual makeup of the plaintiff.” Uebelacker v. Cincom Systems,

Inc., 549 N.E.2d 1210, 1220 (Ohio App. 1st Dist. 1988)(citing Paugh v Hanks, 6 Ohio St.3d 72,

12 Defendants alternatively argue that Kwiatkowski and Cercek are immune from

liability because they are employees of a political subdivision and none of the

exceptions under O.R.C. §2744.03 apply. The Court need not address this

argument because plaintiff cannot establish a prima facie case of intentional

infliction of emotional distress.

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80 (1983)).

Upon review, the Court finds that plaintiff has not presented evidence sufficient to

establish a prima facie case of intentional infliction of emotional distress under Ohio law. While

plaintiff has alleged that he has “serious emotional distress” that is “of such a nature that no

reasonable person could endure it,” he has not presented any evidence of such. Indeed, plaintiff

has not named any symptoms or offered any specifics as to how he has suffered, such as

increased anxiety, depression, or panic attacks. Nor has plaintiff sought any medical treatment

for his alleged psychological injuries and has not indicated that he has any plans to do so.

Therefore, plaintiff’s intentional infliction of emotional distress claims must fail because plaintiff

has not presented any evidence that he has suffered a severe and debilitating psychic injury

caused by defendants’ conduct. See Campbell v. Triad Financial Corp., 2007 WL 2973598, *13

(N.D. Ohio Oct. 9, 2007)(“Plaintiffs claiming severe and debilitating emotional injury must

present some guarantee of genuineness in support of their claim, such as expert evidence, to

prevent a court from granting summary judgment in favor of defendant”).

Accordingly, the Court grants summary judgment in favor of defendants Kwiatkowski

and Cercek on this claim.

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CONCLUSION

For the foregoing reasons, defendants’ Motion for Summary Judgment is GRANTED.

Judgment is entered in favor of defendants on all claims.

IT IS SO ORDERED.

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

United States District Judge

Dated: 1/15/20 Chief Judge

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