Miller v. City of Shaker Heights, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

QUEEN TIERRA R. MILLER, ) CASENO. 1:19 CV 1080

Plaintiff,

v. JUDGE DONALD C. NUGENT

CITY OF SHAKER HEIGHTS, OHIO, et ai., MEMORANDUM OPINION

) AND ORDER

Defendants. )

This matter is before the Court on Defendant Tyler Smith’s Motion for Summary

Judgment (ECF #22), and Defendant City of Shaker Heights’ Motion for Summary Judgment

(ECF #26). Plaintiff filed a Brief in Opposition to both motions. (ECF #28, 29). Defendants

each filed a Reply in support of their respective motion. (ECF #30, 31). Having considered all

of the parties’ submissions, as well as the relevant evidence and applicable law, this Court finds

that Defendant City of Shaker’s Heights Motion for Summary Judgment should be GRANTED,

and Defendant Tyler Smith’s Motion for Summary Judgment should be GRANTED in part and

DENIED in part.

Facts and Procedural History’

Plaintiff, Ms. Miller, filed a Complaint asserting that her Fourth and Fourteenth

Amendment rights, were violated by Officer Smith, including, but not limited to, the right to

privacy, body integrity, and procedural and substantive due process. Ms. Miller also brings a

Monell claim against the City of Shaker Heights, Ohio for failure to train and to enforce policies

that she claims could have prevented the alleged violations of her constitutional rights.

It is undisputed that in the early morning hours of September 21, 2018, Ms. Miller’s car

was pulled over by Defendant Tyler Smith, a police officer employed by the City of Shaker

Heights, for a suspected window tinting violation. Though she owned the vehicle, Ms. Miller

was not driving when the car was pulled over because she was not insured. (Miller Depo. at 21,

ECF #24). Her friend, who was driving, had a suspended license. Both the driver and Ms.

Miller also had outstanding warrants.? Ms. Miller was issued a citation for “wrongful

entrustment” for allowing her friend to drive the car without a valid license.*? She was asked to

write her phone number and current address on the ticket. The encounter ended around 4:00

Except as otherwise cited, the factual summary is based on the parties’ statements of fact

and deposition transcripts and does not constitute a finding of fact by this Court. Those

material facts which are controverted and supported by deposition testimony, affidavit, or

other evidence are stated in the light most favorable to Plaintiff, the non-moving party and

accepted as true only for purposes of determining the summary judgment motions.

At one point during the stop Ms. Miller was being handcuffed because of the outstanding

warrant. (Miller Depo. at 39-40, ECF #24).

; .

Before the ticket was issued, a second officer arrived as back-up. Officer B. Meredith

actually issued and signed the ticket, at the direction of Officer Smith.

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a.m.’ Officer Smith’s shift ended at approximately 5:00 a.m..

The parties disagree on nearly everything that occurred after this point. For purposes of

this opinion only, the accounts will be construed in the light most favorable to Plaintiff, the non-

moving party, as required under the summary judgment standard. According to Ms. Miller,

shortly after 5:00 a.m. she received a series of phone calls from an unknown number. After the

third or fourth call, she answered. (Miller Depo. at 52-53, ECF #24). The caller identified

himself as Officer Smith, stated that he should not have given her the ticket and that he was near

her home. He asked if she was at home and if he could come over. He also asked if she stayed

alone. She refused his request to come over. (Miller Depo. at 54-55, ECF #24). Officer Smith

asked her is she wondered how he got his number, and then told her he got it off the ticket.

Officer Smith asked if they could meet and talk, and told her could make her ticket go away.

(Miller Depo. at 57, ECF #24). After some back and forth, Ms. Miller agreed to meet him at a

restaurant for breakfast. (Miller Depo. at 60-62, ECF #24).

According to Ms. Miller, once at the restaurant, Officer Smith expressed his apologies for

issuing her the ticket and asked if she would sleep with him if he could change the ticket. She

said no. He then said he would pay for the ticket or fix it and asked again if she would sleep with

him. She again said no. Ms. Miller testified that Officer Smith then said “I want to change it,

but will you sleep with me, like are you going to sleep with me?” (Miller Depo. at 63-67, ECF

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All parties were at the scene of the stop for an extended period of time, as neither Ms.

Miller nor the other occupant of the car were legally able to drive home. Further, once

someone arrived to drive them the vehicle would not start, and Ms. Miller had to call

another friend to come and jump-start the vehicle. (Miller Depo. at 37-42, ECF #24).

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#24). He then offered to go get the money from an ATM to pay for the ticket if she would

follow him. She initially refused, but then did follow him to the ATM and accepted $100.00.

The cost of the ticket was $250.00, but Officer Smith said $100.00 was all he could take out at

the time, and he would give her the rest later after he got paid. (Miller Depo. at 68-74, 115, ECF

#24). He then asked her again to have sex with him. Ms. Miller testified that she again refused,

but asked if he had a condom. (Miller Depo. at 80-81, ECF #24). He stated that he did not have

one, and she followed him to a gas station where he purchased one, and then followed him to a

side street where he asked her to get into his car. (Miller Depo. at 82-84, ECF #24). Ms. Miller

refused to get in his car, but allowed him to get into hers. (Miller Depo. at 85-86, ECF #24). She

moved into the passenger seat and she claims that he then asked if he could perform oral sex on

her. She shook her head no and at, at least at first, tried to resist. (Miller Depo. at 88, 91-92,

ECF #24). He placed his gun on the dashboard and performed oral sex on her, and then

penetrated her. (Miller Depo. at 86, 94-95, ECF #24).

Ms. Miller claims that during this encounter Officer Smith was wearing his uniform, with

a dark hoodie zipped over his uniform top, and he was carrying handcuffs and a weapon. (Miller

Depo. at 76-78, 87-88, ECF #24). She testified that she was afraid that Officer Smith would

harm her or she would suffer retaliation from the police if she declined to have sex with him.

She also testified that she felt terrified, but also feared she could be arrested for driving without

insurance if she called the police. (Miller Depo. at 75-77, 92, ECF #24). She admits that Officer

Smith made no direct threat of harm, legal action or other consequence if she declined, but also

indicated that she was intimidated because Officer Smith knew where she lived, was in a position

of authority, would be believed over her if anything happened, and could kill her and give any

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story he wanted. (Miller Depo. at 76-77, 147-52, ECF #24). She also noted that her fear was

related to the fact that he had already acted outside the boundaries of his position by calling her

and telling her he could fix her ticket. (Miller Depo. at 151, 155, ECF #24). In addition, Officer

smith placed his gun on the dashboard of the car during the sexual encounter, which in her mind

implied a threat. Her fear was heightened by the fact the she lived alone with her young son.°

(Miller Depo. at 153, ECF #24). She also believed, based on things he had said during the stop,

that Officer Smith had been following her on social media prior to her being pulled over. (Miller

Depo. at 37-45, ECF #24).

Following the encounter described above, Ms. Miller and Officer Smith communicated

several more times over the course of a few weeks. (Miller Depo. at 99-103, ECF #24). The

communications were directed at setting up a place and time for Officer Smith to pay Ms. Miller

an additional amount to help her pay off her traffic ticket. (Miller Depo. at 99-135, ECF #24).

He never showed up at her house or her place of employment, or anywhere else unexpectedly.

(Miller Depo. 104-05, ECF #24). Later in October, Officer Smith did meet up with Ms. Miller

and gave her additional money to pay the ticket. They had no further interaction after this

meeting. (Miller Depo. at 138, 141-42, ECF #24). Ms. Miller later reported the above

information to her attorney who relayed a complaint to the City of Shaker Heights. (Miller Depo.

at 158-59, ECF #24). The “wrongful entrustment” charge was eventually dropped, and Officer

Smith was investigated. At some point he was put on paid administrative leave, but, as of the

Ms. Miller testified during her deposition that she moved from the residence she rented at

the time of the events described above because of the events that form the basis of this

lawsuit. (Miller Depo. at 29-30, ECF #24). She moved in April of 2019, approximately a

month before this lawsuit was filed.

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date of his deposition he remained employed by the City.

Summary Judgment Standard

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(a). 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 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing prior 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 plaintiff's 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

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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.” Jd.

at 252. However, if the non-moving party faces a heightened burden of proof, such as clear and

convincing evidence, it must show that it can produce evidence which, if believed, will meet the

higher standard. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6" Cir. 1989).

Once the moving party has satisfied its burden of proof, the burden then shifts to the non-

mover. The non-moving 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). Evidence may be presented by citing to particular parts

of the record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations (including those made for purposes of the motion only), admissions,

interrogatory answers, or other materials. Fed. R. Civ. P. 56(c). In lieu of presenting evidence,

Fed. R. Civ. P. 56(c) also allows that a party may show that the opposing party’s evidence does

“not establish the presence of a genuine dispute” or that the adverse party “cannot produce

admissible evidence to support the fact.”

According to Fed. R. Civ. P. 56(e),

[i]f a party fails to properly support an assertion of fact, or fails to properly

address another party’s assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

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(3) grant summary judgment if the motion and supporting materials — including the facts

considered undisputed — show that the movant is entitled to it; or

(4) issue any other appropriate order

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. As a general matter, the district judge

considering a motion for summary judgment is to examine “[o]nly disputes over facts that might

affect the outcome of the suit under governing law.” Anderson, 477 U.S. at 248. The court will

not consider non-material facts, nor will it weigh material evidence to determine the truth of the

matter. Id. at 249. The judge’s sole function is to determine whether there is a genuine factual

issue for trial; this does not exist unless “there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party.” Id.

Analysis

A. City of Shaker Heights

Ms. Miller has sued the City of Shaker Heights for the harm she allegedly suffered as a

result of the above encounter. As a rule, local governments may not be sued under 42 U.S.C. §

1983 for an injury inflicted solely by employees or agents under a theory of respondeat superior.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). “Instead, it is when the execution

of a government’s policy or custom .. . inflicts the injury that the government as an entity is

responsible under § 1983.” Jd. at 694; DePiero v. City of Macedonia, 180 F.3d 770, 786 (6th

Cir. 1999); see also Graham v. County of Washtenaw, 358 F.3d 377, 382 (6" Cir. 2004)(to prove

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municipal liability the city must be responsible for a constitutional violation). Moreover, the

policy or custom must be the moving force of the constitutional violation in order to establish

municipal liability. Monell, 436 U.S. at 690.

Liability against a municipality is available under multiple theories. See id. at 660-61 (an

express municipal policy); City of St. Louis v. Praprotnick, 485 U.S. 112, 127 (1988) (a

“widespread practice that, although not authorized by written law or express municipal policy, is

‘so permanent and well settled as to constitute a custom or usage’ with the force of law”); City of

Canton v. Harris, 489 U.S. 378, 390 (1989) (a failure to act where the “inadequacy [of the

existing practice is] so likely to result in the violation of constitutional rights, that the

policymaker . . . can reasonably be said to have been deliberately indifferent to the [plaintiff's

rights]””); Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247 (6th Cir. 1989) (a ratification of a

municipal employee’s unconstitutional acts by failing to meaningfully investigate and punish

allegations of unconstitutional conduct). Here, Ms. Miller claims that the City is liable because it

failed to properly train Officer Smith and failed to take appropriate disciplinary action against

him in connection with the events described in the Complaint. In order for these charges to rise

to the level of a Monell violation, the alleged failure to train and failure to take disciplinary

action must equate to a widespread practice or custom so common that it has the effect of a

written policy. See, Meyers v. City of Cincinnati, 14 F.3d 1115, 1120 (6" Cir. 1994). In other

words, the City of Shaker Heights cannot be found liable unless Plaintiff has established the

toleration of a custom or practice, that led the deprivation of Ms. Miller’s Constitutional rights.

Averyhurst v. City of Shaker Hts., N.D. Ohio No. 1:16-C-2071, 2017 WL 3705928, *5.

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1. Failure to Train

Ms. Miller claims that the City failed to properly train its officers. The Supreme Court in

Canton has explained:

The issue . . . is whether that training program is adequate; and if it is not, the

question becomes whether such inadequate training can justifiably be said to

represent “city policy.” It may seem contrary to common sense to assert that a

municipality will actually have a policy of not taking reasonable steps to train its

employees. But it may happen that in light of the duties assigned to specific

officers or employees the need for more or different training is so obvious, and the

inadequacy so likely to result in the violation of constitutional rights, that the

policymakers of the city can reasonably be said to have been deliberately

indifferent to the need. In that event, the failure to provide proper training may

fairly be said to represent a policy for which the city is responsible, and for which

the city may be held liable if it actually causes injury.

Id. at 390 (footnotes omitted).

There are “at least two types of situations that would justify a conclusion of deliberate

indifference in the failure to train police officers.” Brown v. Shaner, 172 F.3d 927, 931 (6th Cir.

1999). One situation “is where the city fails to act in response to repeated complaints of

constitutional violations by its officers.” Jd Another “is failure to provide adequate training in

light of foreseeable consequences that could result from the lack of instruction.” Jd. In both

cases, deliberate indifference is established when “the need for more or different training is so

obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the

policymakers of the city can reasonably be said to have been deliberately indifferent to the need.”

Canton, 489 U.S. at 388-89 (1989). In sum, to succeed on this claim, a plaintiff must prove that

“(1) the training or supervision was inadequate for the tasks performed; (2) the inadequacy was

the result of municipality’s deliberate indifference; and (3) the inadequacy was closely related to

or actually caused the injury.” Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.

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2006).

The City has a set of policies, which, if followed, would have prevented the alleged

misconduct by Officer Smith. The Shaker Heights Police Department has published Rules and

Regulations, a written Code of Ethics, and a Records and Security and Privacy Policy, all of

which address behavior underlying the allegations at issue in this case. Commander Cole

testified that all of these policies are reinforced at each step of the training process, throughout

the probationary period, and during each officer’s entire tenure with the Department. Complaints

arising from alleged violations of these policies are investigated by the Internal Affairs Office

and when warranted, disciplinary measures are taken. Plaintiff has offered no evidence to the

contrary. Plaintiff has also failed to identify any particular training that she claims should have

been offered but wasn’t, nor has she identified any specific deficiencies in the actual training

provided.

Further the evidence shows that the relevant policies were enforced and that violations

were investigated. There is no evidence that a similar situation would likely reoccur without

additional training, and it was not predictable that any officer lacked specific tools to avoid the

allegations at issue in this case. In fact, Officer Smith, himself testified that he understood that

the actions alleged in this case would be both inappropriate under the Department policies, and

illegal. (Smith Depo. at 161, ECF #25). Therefore, a lack of training or enforceable City policy

cannot be considered to have been the moving force of the violation. In light of this evidence, a

reasonable juror could not infer that the City failed to adequately train its officers or that such

failure, if any, amounted to deliberate indifference. Consequently, the City’s motion for

summary judgment is granted with respect to this claim.

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2. Ratification

A plaintiff can establish a municipal liability claim by demonstrating that a final

municipal policymaker approved of a subordinate’s behavior, approved of an investigation that

was so inadequate as to constitute a ratification of the alleged behavior, or failed to punish the

responsible parties. Wright v. City of Canton, 138 F.Supp.2d 955, 966 (N.D. Ohio 2001), citing

Praprotnik, 485 U.S. at 127; Johnson v. City of Memphis, 2008 U.S. Dist. LEXIS 1199, at *11

(W.D. Tenn. Jan. 8, 2008). See also, Marchese v. Lucas, 758 F.2d 181 (6th Cir. 1985); Leach v.

Shelby County Sheriff, 891 F.2d 1241 (6th Cir. 1989).

Here, the City did conduct an investigation of the Officer Miller incident. Neither party

has submitted evidence of what the results of that investigation are, although it is clear that

Officer Miller was placed on paid administrative leave pending the results. Ms. Miller was asked

to participate in the investigation by providing a written statement but, according to her

deposition testimony, did not agree to make any statements on the record in the investigation.

Given the evidence before this Court of the City’s investigation and suspension of Officer Miller,

and her failure to fully cooperate in the investigation, Ms. Miller has failed to raise a genuine

issue of material fact on the issue of ratification, and the claim cannot survive summary

judgment. Further, the City investigated the only other complaint raised against Officer Smith

during his tenure. The evidence provided shows that the investigation was thorough and the

complainants accusations were taken seriously. There is no evidence that support a finding that

the City ratified Officer Smith’s alleged behavior. Consequently, the City’s motion for summary

judgment is also granted with respect to this claim.

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B. Officer Tyler Smith

Title 42, section 1983, of the United States Code provides, in part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress...

42 U.S.C. § 1983. Because the Fourth Amendment has been incorporated by the due process

clause of the Fourteenth Amendment, state officials are subject to §1983 lawsuits under these

amendments.

To succeed on a § 1983 claim, a plaintiff must prove two elements: (1) that a right

secured by the Constitution or laws of the United States was deprived, and (2) that the defendant

committed the violation while acting under color of state law. Jones v. Duncan, 840 F.2d 359,

360-61 (6th Cir. 1988); 42 U.S.C. § 1983.

1. Color of State Law

Officer Smith claims that, even if the facts alleged by Ms. Miller are taken as true, they

do not support a finding that he was acting under color of state law during the encounter at issue.

The allegations, if true, do not support this conclusion. A defendant was acting under color of

state law or authority for purposes of section 1983, if he wielded or abused power he held in

connection with his state appointed authority. This does not mean he must be acting within the

scope of that authority, or even in connection with his official duties. “[I]t is well established

that an official may act under color of law even when he or she encounters the victim outside the

conduct of official business and acts for reasons unconnected to his or her office, so long as he or

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she employs the authority of the state in the commission of the crime.” U.S. v. Giordano, 442

F.3d 30, 43 (2™ Cir. 2006). However, “a defendant’s private conduct, outside the course or

scope of his duties and unaided by any indicia of ostensible state authority, is not conduct

occurring under the color of state law.” Burris v. Thorpe, 166 F.App’x 799, 802 (6 Cir. 2006).

Defendant’s argument that he was not acting in an official capacity, not seeking to further

any governmental interest, not on duty, and not in uniform misses the point. The law does not

require that the Defendant be acting on behalf of the state under the state’s authority. Indeed

most constitutional violations occur when officials abuse, overreach, or act outside their official

authority. . “It is axiomatic that under ‘color’ of law means ‘pretense’ of law,” and not the

authorized exercise of legal authority. Monsky v. Moraghan, 127 F.3d 243, 245 (2™ Cir. 1997).

Further, “[i]t is the nature of the act performed, not the clothing of the actor or even the status of

being on duty, or off duty, which determines whether the officer acted under color of state law.”

Stengel v. Belcher, 522 F.2d 438, 441 (6" Cir. 1975).

If the evidence provided by Ms. Miller is found to be true, a jury could easily find that

Officer Smith was acting under color of state law when he propositioned her for sex in exchange

for fixing, or getting rid of a ticket issued during a traffic stop he initiated. She testified that she

met Officer Smith only through his exercise of his official duties. She claims Officer Smith

obtained her phone number and home address from the ticket issued when he pulled her vehicle

over. She testified that he used this information, obtained through his official duties, to contact

her in order to proposition her. She also testified that he told her he would fix, pay for, or get rid

of the ticket that was issued as part of his official duties if she would have sex with him. In

addition, Ms. Miller claims that when Officer Smith actually propositioned her, he was wearing

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his uniform and tool belt, including his handcuffs, and was carrying a weapon.° If these claims,

or a significant subset of these claims, are true, a jury could find that Officer Smith’s alleged

inappropriate behavior was aided by an “indicia of ostensible state authority” because he could

not have contacted her, or offered to fix her ticket in exchange for sex without taking advantage

of information and power attendant to his official role as a police officer. See, Burris at 802.

2. Constitutional Violations

Plaintiff has brought claims under 42 U.S.C. §1983 for violations of the Fourth and

Fourteenth Amendments to the United States Constitution. The Fourth Amendment protects

against unreasonable searches and seizures in the context of official restraint or detention. There

is no allegation that Ms. Miller was ever subject to a search or seizure within the meaning of the

Fourth Amendment. Further, although she includes a due process claim in her Complaint, she

does not actually argue that there was insufficient process, but rather that she was deprived of her

own body integrity. Body integrity claims are consistently addressed solely under the Fourteenth

Amendment’s right to substantive due process. Lillard v. Shelby Cnty. Bd. of Educ., 76 F.3d

716 (6" Cir. 1996). Ms. Miller’s claims will therefore be considered only under the Fourteenth

Amendment right to substantive due process, and her claims for relief under the Fourth

Although wearing his uniform and carrying a gun is not determinative of whether he was

acting under the color of state law, it can certainly be considered when trying to determine

whether he was operating under a pretense of authority. Defendant relies heavily on the

case of Harmon v. Grizzel, S.D. Ohio Case No. 1:03 CV 169, 2005 WL 1106975 (S.D.

Ohio 2005), to argue that an officer is not acting under color of law simply because he is

wearing a uniform, carrying a gun, or even driving a police car. In that case, however, the

officer had a prior relationship with the victim that did not arise from any official or

professional encounter. In this case, Ms. Miller claims that her only encounter with Officer

Smith had been during a traffic stop he initiated mere hours before the events giving rise to

her Complaint.

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Amendment and the Fourteenth Amendment’s Due Process clause are dismissed.

To recover on a substantive due process claim, a plaintiff must prove that she has a

protected liberty interest and that Officer Smith’s behavior was so egregious or outrageous that

“it may fairly be said to shock the contemporary conscience.” Cnty of Sacramento v. Lewis, 523

U.S. 833, 847 n.8 (1998). The right to body integrity is a recognized right protected by

substantive due process. Albright v. Oliver, 510 U.S. 266, 272 (1994). This includes the right to

be free from “invasion of. . . personal security” including by means of sexual abuse. Stoneking v.

Bradford Area Sch. Dist., 882 F.2d 720, 726 (3" Cir. 1989). Therefore, Ms. Miller has

identified a protected liberty interest.

Courts have generally found conduct to shocking to the contemporary conscience if it

offends a sense of justice, runs afoul of the decencies of civilized conduct, or is intended to injury

in a manner unjustified by any government interest. Lewis, 523 U.S. at 846-50. If Ms. Miller’s

account of the events at issue is found to be true, a jury could find that Officer Smith’s behavior

offends a sense of justice and runs afoul of decency and civilized conduct. Defendant does not

attempt to argue that a coerced sexual encounter, precipitated by a police officer’s abuse of

power would not rise to this standard. Rather he argues that the facts of this case do not paint

such a picture. His argument presumes Ms. Miller’s unfettered consent and discounts the level

of intimidation and coercion she claims he exerted on her. Because Officer Smith’s argument for

summary judgment on Ms. Miller’s Fourteenth Amendment claim is reliant on the acceptance of

facts that are in dispute, his motion must fail.

3. Qualified Immunity

Defendant, Officer Smith contends that he is entitled to qualified immunity on □□□□□□□□□□□

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claims. “Government officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have know.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). Qualified immunity is “an immunity from suit rather than a mere defense

to liability.” Mitchell v. Forsyth, 472 U.S. 511, at 526 (1985). “The protection of qualified

immunity applies regardless of whether the government official’s error is ‘a mistake of law, a

mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson v. Callahan,

555 U.S. 223, at 231 (2009)(internal citations omitted). “Qualified immunity attaches when an

official’s conduct ‘does not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015), citing

Person vy. Callahan, 555 U.S. 223, 242 (2009). The application of qualified immunity is

determined as a matter of law, not as a matter of fact. Garvie v. Jackson, 845 F.2d 647, 649 (6"

Cir. 1988).

Qualified immunity under federal law is applied using a two part test. First, courts must

determine whether the alleged acts violate a constitutional right. Second, the court must

determine whether at the time of the actions, the constitutional right is “clearly established.”

Saucier v. Katz, 533 U.S. 194 (2001). A right is clearly established if “[t]he contours of the

right [are] sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The relevant inquiry is

“whether it would be clear to a reasonable officer that his conduct was unlawful in the situation

he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). The determination must be based on

what an reasonable officer would believe or understand under the circumstances given what was

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known to the officer at the time. White v. Pauly, 137 S.Ct. 548, 550 (2017); Kinsley v.

Hendrickson, 135 S. Ct. 2466, 2474 (2015); Fox v. DiSoto, 489 F.3d 227 at 236 (6™ Cir. 2007).

The standard is objective, and must not be applied using hindsight unavailable to the officers at

the time the action were taken. Jd. Once a defendant has shown that he was acting within his

discretionary authority, the plaintiff bears the burden of proving that he is not entitled to qualified

immunity. Wegener v. Covington, 933 F.2d 390, 392 (6" cir. 1991).

As set forth above, Ms. Miller has properly alleged a Section 1983 claim for deprivation

of her constitutional right to substantive due process in the context of preserving her body

integrity. There can be no question that a Fourteenth Amendment right to body integrity is well

established, and this right means that citizens have the right to be free from sexual abuse. See,

Albright v. Oliver, 510 U.S. 266, 272 (1994); Stoneking v. Bradford Area Sch. Dist., 882 F.2d

720, 726 (3 Cir. 1989). Further, a reasonable officer would understand that coercing sexual

relations through an implicit threat of force, retaliation, or abuse of official power would violate

that right of body integrity. More specifically as alleged in this case, a reasonable officer should

understand that taking personal contact information gathered during a traffic stop, using that

information to contact the subject of the traffic stop, and then propositioning her for sex in

exchange for fixing or getting rid of the ticket that resulted from that stop would be illegal

behavior. In fact, Officer Smith, himself testified that he understood such actions would be both

inappropriate under the Department policies, and illegal. (Smith Depo. at 161, ECF #25). For

these reasons, Officer Smith is not entitled to qualified immunity for the claims alleged in this

case.

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Conclusion

For the reasons set forth above, Defendant City of Shaker Heights’ Motion for Summary

Judgment is GRANTED. (ECF #26). Defendant Tyler Smith’s Motion for Summary

Judgment is GRANTED in part and DENIED in part. (ECF #22). Trial remains set for

February 24, 2020 at 8:30 a.m.. IT IS SO ORDERED.

DONALD C. woes

Senior United States DiStrict Judge

520.0

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