# Damato v. Kasimer

> District Court, N.D. Ohio · March 20, 2020

URL: https://www.frixlaw.com/law-library/cases/10368196

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** March 20, 2020
- **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

JUSTIN D’AMATO, CASE NO. 1:18-CV-00680

Plaintiff,
-vs- JUDGE PAMELA A. BARKER

OFFICER JOHN KAZIMER, et al.,
MEMORANDUM OF OPINION AND
Defendants. ORDER

This matter comes before the Court upon the Motion for Summary Judgment of Defendants
Officer John Kazimer (“Officer Kazimer”) and the City of Cleveland (the “City”) (collectively,
“Defendants”). (Doc. No. 35.) On August 9, 2019, Plaintiff Justin D’Amato (“D’Amato”) filed
separate briefs in opposition to Defendants’ Motion for Summary Judgment to respond to the
arguments made on behalf of Officer Kazimer and the City, respectively. (Doc. Nos. 41, 42.)
Defendants replied on August 23, 2019. (Doc. No. 43.) For the following reasons, Defendants’
Motion for Summary Judgment (Doc. No. 35) is GRANTED as to D’Amato’s first and fifth causes
of action brought under 42 U.S.C. § 1983. The remaining state law claims are DISMISSED
WITHOUT PREJUDICE.
I. Background
a. Factual Background
In the early morning hours of August 11, 2015, Officer Kazimer and his partner, Officer
Robert Ortiz (“Officer Ortiz”), were patrolling the West Park area of the City of Cleveland. (Doc.
No. 35-1 at 11:2-10.) According to Officer Kazimer, while driving eastbound on Puritas Avenue,
Officer Ortiz called Officer Kazimer’s attention to a vehicle that had just run a red light while making
a left turn onto Puritas Avenue four or five blocks in front of the officers’ vehicle. (Id. at 14:10-21,
15:6-20, 21:22-22:13.) Officer Kazimer asserts that they started to follow the vehicle and he observed
the vehicle swerving, driving sporadically at a high rate of speed, blaring music, and driving on what
sounded like a flat tire. (Id. at 14:19-21, 16:16-17:3, 23:19-22, 24:20-25:6, 26:25-27:4.) When the
vehicle stopped at a red light, Officer Kazimer claims that they pulled up to the vehicle’s blind spot
and he noticed fresh bullet holes in the side of the car. (Id. at 23:6-18, 23:23-24:4, 25:7-13, 40:4-14.)

Based on these observations, Officer Kazimer told Officer Ortiz to pull the vehicle over. (Id. at 26:13-
24).1
Subsequently, the officers activated the overhead lights and sirens, and the driver of the
vehicle immediately pulled over. (Id. at 30:20-31:4.) Officer Kazimer then exited the police cruiser
and approached the vehicle on the passenger side. (Id. at 42:9-12.) As Officer Kazimer approached
the vehicle on the passenger side, Officer Ortiz also exited the police cruiser and approached on the
driver side of the vehicle. Officer Ortiz activated his body camera shortly before they pulled the
vehicle over, and both parties submitted the footage from Officer Ortiz’s body camera as an exhibit.
(Doc. No. 35-2; Doc. No. 41-2.)2
When Officer Kazimer reached the passenger side window of the front seat of the vehicle, he

observed the driver, later identified as D’Amato, with a black handgun in his waistband. (Doc. No.
35-1 at 43:1-4.) After seeing the gun, Officer Kazimer drew his service weapon and ordered D’Amato

1 Officer Ortiz’s account of the reason for the stop differs slightly from that of Officer Kazimer’s, as Officer Ortiz testified
at his deposition that they stopped the vehicle because it was driving recklessly and without any lights on. (Doc. No. 41-
1 at 12:16-17, 13:3-6, 14:1-5, 15:1-5.) Officer Ortiz did not recall observing bullet holes in the vehicle. (Id. at 17:13-
15.) Nonetheless, D’Amato concedes that the officers had probable cause to stop his vehicle. (Doc. No. 42 at 4 n.1.)
2 Officer Kazimer believed that he also had activated his body camera as soon as he exited the police cruiser, but it did
not actually turn on. (Doc. No. 35-1 at 42:11-12.) As such, the only footage of the use of force at issue is from Officer
Ortiz’s body camera. Officer Kazimer did turn on his body camera after D’Amato’s shooting, however, and D’Amato
also submitted that footage as an exhibit to his opposition. (Doc. No. 41-2.)
2
not to move. (Id. at 43:20-23, 44:12-14.) At first, D’Amato did not react, so Officer Kazimer yelled
“don’t move” again. (Id. at 44:12-17.) After that, D’Amato slowly turned his head and, as soon as
he saw Officer Kazimer, pulled his shirt over the gun. (Id.) Officer Kazimer then alerted Officer
Ortiz to the fact that D’Amato was armed. (Id. at 51:18-19.)
Footage from Officer Ortiz’s body camera shows that as Officer Ortiz approached the vehicle,
Officer Kazimer yelled at D’Amato to drop the gun and not to move. Officer Ortiz then ordered

D’Amato to get out of the car. (Doc. No. 41-1 at 18:2-3.) D’Amato complied with this order and
exited the car. (Id. at 18:6-9.) According to Officer Kazimer, at this point, D’Amato “opened the
door . . . his hands are up, he’s obeying commands.” (Doc. No. 35-1 at 51:24-25.) Almost
immediately upon exiting the vehicle, however, D’Amato started to run.
The parties’ accounts of what happened next are inconsistent in several respects. At his
deposition, Officer Kazimer testified that D’Amato ran around the front of the car, curving towards
Officer Kazimer to go down a side street. (Id. at 51:18-52:7.) Officer Kazimer claims that as
D’Amato came around the front of the car, Officer Kazimer observed D’Amato’s hands going for his
waistband where Officer Kazimer had just seen D’Amato’s gun. (Id. at 56:19-57:3.) As a result,
Officer Kazimer testified that he felt an immediate threat to his life and fired his gun twice. (Id. at

56:23-57:3, 61:7-9.) Officer Kazimer asserts these first two shots did not have any effect, so he then
fired two more shots, after which D’Amato fell to the ground. (Id. at 61:9-10.) As D’Amato fell
after being shot, his gun and a gun magazine dropped out of his waistband to the ground. Officer
Kazimer claims that after D’Amato had fallen to the ground, he saw D’Amato make a movement
towards the gun, which was only two or three feet away. (Id. at 69:16-70:6.) Specifically, Officer
Kazimer testified he “thought [D’Amato] was reaching for the gun with his left arm. It later shows

3
that it was his left leg, but he was getting up on the side towards the gun. The gun was only two,
three feet away. So there was still a threat.” (Id. at 70:2-6.) Officer Kazimer claims he fired his fifth
shot at D’Amato in response to this movement, at which point D’Amato stopped and rolled over. (Id.
at 63:11-23, 69:16-24, 70:13-71:7.) At this point, Officer Kazimer testified that he and Officer Ortiz
were able to get control of the scene and start first aid. (Id. at 69:16-20.)
D’Amato disputes this description of events. D’Amato asserts that Officer Ortiz’s body-

camera footage shows that D’Amato is running towards the side street, but also that he is clearly
fleeing and running away from both officers, not curving towards Officer Kazimer. (Doc. No. 41 at
4.) D’Amato also testified at his deposition that while running from the officers, he did not reach for
his gun. (Doc. No. 35-3 at 36:24-37:1, 38:3-10.) D’Amato contends his testimony is supported by
Officer Ortiz’s body-camera footage—which he asserts shows he did not reach for his gun when
Officer Kazimer began shooting (Doc. No. 41 at 5)—and Officer Ortiz’s deposition testimony stating
that he never saw D’Amato reach for his gun (Doc. No. 41-1 at 26:6-17). Finally, D’Amato asserts
the body-camera video reveals that neither D’Amato’s leg, nor any other appendage, ever moved
toward his gun after he fell to the ground. (Doc. No. 41 at 10, 13-14.) Instead, D’Amato claims the
video shows him in a squatting position, and that he makes what appears to be an involuntary motion

away from, not towards, his gun prior to the fifth shot by Officer Kazimer. (Id. at 9-10.) He also
argues that the magazine of the gun appears to be about three feet away from him after he fell, but
that the actual gun is approximately five feet from D’Amato. (Id. at 10.)
Although unknown to Officer Kazimer and Officer Ortiz at the time, when they encountered
D’Amato, he had just committed a series of violent crimes and the vehicle he was driving had just
been stolen in an armed robbery. As a result of the events leading up to and including his arrest,

4
D’Amato was indicted for multiple offenses, including aggravated robbery, kidnapping, theft,
felonious assault, resisting arrest, having weapons under disability, and drug possession. (Doc. No.
35-4.) D’Amato subsequently pled guilty to multiple counts of the indictment, including Count 8 for
resisting arrest. (Doc. No. 35-5.) Specifically, Plaintiff pled guilty to resisting arrest while
brandishing a deadly weapon pursuant to Ohio Revised Code § 2921.33(C)(2). (Id.)3
b. Procedural History

On March 26, 2018, D’Amato filed the current Complaint against Defendants. (Doc. No. 1.)
In his Complaint, D’Amato sets forth claims under 42 U.S.C. § 1983 against Officer Kazimer for the
use of excessive force in violation of the Fourth Amendment and against the City for failing to
adequately supervise its officers, train its officers on the use of appropriate levels of force, and
investigate its officers’ use of excessive force. (Id. at ¶¶ 47-51, 60-65.) D’Amato also brings claims
under Ohio law against Officer Kazimer for assault, battery, and intentional infliction of emotional
distress and against the City for negligent hiring, training, and supervision. (Id. at ¶¶ 52-59.)
On May 31, 2019, Defendants filed a Motion for Summary Judgment as to all of D’Amato’s
claims. (Doc. No. 35.) On August 9, 2019, D’Amato filed separate briefs in opposition to
Defendants’ Motion for Summary Judgment to respond to the arguments made on behalf of Officer

Kazimer and the City, respectively. (Doc. Nos. 41, 42.) Defendants filed a joint reply on August 23,
2019. (Doc. No. 43.) As such, Defendants’ Motion is ripe for consideration.

3 In Ohio, brandishing is defined as “to wave or exhibit in a menacing or challenging manner.” State v. McCrary, No. C-
080860, 2009 WL 2674327, at *4 (Ohio Ct. App. 1st Dist. Aug. 28, 2009) (citation omitted).
5
II. Standard of Review
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A
dispute is ‘genuine’ only if based on evidence upon which a reasonable jury could return a verdict in
favor of the non-moving party.” Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 487 (6th Cir.
2006). “Thus, ‘the 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.’”
Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is “material” only “if its resolution might affect the
outcome of the suit under the governing substantive law.” Henderson, 469 F.3d at 487.
At the summary judgment stage, “[a] court should view the facts and draw all reasonable
inferences in favor of the non-moving party.” Pittman v. Experian Info. Solutions, Inc., 901 F.3d
619, 628 (6th Cir. 2018). In addition, “the moving party bears the initial burden of showing that there
is no genuine dispute of material fact.” Ask Chems., LP v. Comput. Packages, Inc., 593 F. App’x
506, 508 (6th Cir. 2014). The moving party may satisfy this initial burden by “identifying those parts
of the record which demonstrate the absence of any genuine issue of material fact.” Lindsey v.

Whirlpool Corp., 295 F. App’x 758, 764 (6th Cir. 2008). “[I]f the moving party seeks summary
judgment on an issue for which it does not bear the burden of proof at trial,” the moving party may
also “meet its initial burden by showing that ‘there is an absence of evidence to support the
nonmoving party’s case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once
the moving party satisfies its burden, “the burden shifts to the non-moving party who must then point
to evidence that demonstrates that there is a genuine dispute of material fact for trial.” Ask Chems.,

6
593 F. App’x at 508-09. “[T]he 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.’” MISC Berhad v.
Advanced Polymer Coatings, Inc., 101 F. Supp. 3d 731, 736 (N.D. Ohio 2015) (quoting Cox, 53 F.3d
at 150).
III. Analysis
a. Excessive Force

Defendants argue that D’Amato’s excessive force claim under 42 U.S.C. § 1983 is barred by
the doctrine set forth by the Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994). (Doc. No.
35 at 5-7.) Defendants assert that pursuant to Heck and the Sixth Circuit’s interpretation of that
decision, D’Amato’s claim for excessive force is barred by his guilty plea to resisting arrest. (Id.)
Alternatively, Defendants argue that even if D’Amato’s claim is not barred, Officer Kazimer is
entitled to qualified immunity. (Id. at 8-11.) In response, D’Amato contends that his claim is not
barred by Heck because a close examination of the temporal sequence of events demonstrates that a
judgment in his favor on his excessive force claim would not necessarily imply the invalidity of his
conviction, and that Officer Kazimer is not entitled to qualified immunity. (Doc. No. 42.) The Court
concludes that the Heck doctrine bars D’Amato’s claim, and the Court thus need not address the issue

of qualified immunity.
“In Heck, the Supreme Court held that a plaintiff cannot assert a § 1983 claim if success on
that claim would ‘necessarily imply the invalidity’ of an underlying state criminal conviction, unless
the plaintiff can ‘prove that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus.’” Hayward v. Cleveland

7
Clinic Found., 759 F.3d 601, 608 (6th Cir. 2014) (quoting Heck, 512 U.S. at 486-87.) Conversely,
“if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to
proceed, in the absence of some other bar to the suit.” Heck, 512 U.S. at 487.
In the Sixth Circuit, “there are two circumstances under which Heck may apply to bar a §
1983 claim.” Hayward, 759 F.3d at 608. “The first is when the criminal provision makes the lack of

excessive force an element of the crime.” Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010). “The
second is when excessive force is an affirmative defense to the crime.” Id. Under either
circumstance, “the § 1983 suit seeks a determination of a fact that, if true, would have precluded the
conviction.” Id.
Under Ohio law, “a lawful arrest is a necessary element of a conviction for resisting arrest.”
Swiecicki v. Delgado, 463 F.3d 489, 494 (6th Cir. 2006), abrogated on other grounds by Wallace v.
Kato, 549 U.S. 384 (2007).4 The Sixth Circuit has suggested that a lawful arrest cannot occur if the
arresting officer has used excessive force. White v. Ebie, No. 98-3958, 1999 WL 775914, at *1 (6th
Cir. Sept. 24, 1999) (“An arrest is not lawful, under Ohio law, if the arresting officer used excessive
force.”).5 Accordingly, in certain circumstances, courts have found that an excessive force claim

“attack[s] an essential element of the resisting arrest offense, i.e., the lawfulness of the arrest,” and is
thus barred by Heck. Id. at *1; see also Swiecicki, 463 F.3d at 494.

4 Ohio’s resisting arrest statute to which D’Amato pled guilty provides that “[n]o person, recklessly or by force, shall
resist or interfere with a lawful arrest of the person or another person if . . . [t]he offender, during the course of the
resistance or interference, brandishes a deadly weapon.” Ohio Rev. Code § 2921.33(C) (emphasis added).
5 In Hayward, the Sixth Circuit noted that some Ohio appellate courts have not adopted this interpretation of a lawful
arrest. 759 F.3d at 609-11. This potential conflict, however, is irrelevant to the Court’s decision, which is based on the
fact that pre-arrest excessive force is an affirmative defense to a charge of resisting arrest in Ohio, as discussed below.
8
In addition, Ohio courts have held that an officer’s use of excessive is an affirmative defense
that a criminal defendant may raise in response to a charge of resisting arrest. E.g., Mansfield v.
Studer, Nos. 2011–CA–93, 2011–CA–94, 2012 WL 4955278, at *15 (Ohio Ct. App. 5th Dist. Oct.
17, 2012) (“[E]xcessive force is an affirmative defense to resisting arrest.”). Specifically, the Sixth
Circuit has determined that “pre-arrest excessive force is an affirmative defense to a charge of
resisting arrest in Ohio.” Hayward, 759 F.3d at 613 (emphasis added). “Therefore, a criminal

conviction for resisting arrest in Ohio cannot stand where a criminal defendant successfully asserts
the affirmative defense of pre-arrest excessive force; and a § 1983 claim of excessive force would
necessarily imply the invalidity of an underlying conviction for resisting arrest.” Id. at 611. On the
other hand, “Heck does not bar § 1983 suits alleging post-arrest excessive force.” Id. Applying this
analysis, in Hayward, the Sixth Circuit affirmed the district court’s dismissal of the plaintiff’s
excessive force claim because “the alleged excessive force occurred in response to Plaintiff’s
resistance and before an arrest was effectuated.” Id. at 613.
Likewise, here, the alleged use of excessive force by Officer Kazimer occurred in response to
D’Amato’s resistance and before an arrest was effectuated. In this case, almost immediately upon
exiting his car, D’Amato began to run from the officers. Officer Kazimer then fired at D’Amato in

response to D’Amato’s resistance and in order to procure his arrest. All of the shots fired by Officer
Kazimer occurred within approximately six seconds, and D’Amato was clearly attempting to flee
when Officer Kazimer fired the first four shots that brought D’Amato to the ground. In addition, with
regard to the fifth shot, it is undisputed that D’Amato was still in a squatting position and continuing
to move—even if involuntarily as postulated by D’Amato (Doc. No. 41 at 9-10)—seconds before
Officer Kazimer fired for the fifth time. It is only after this final shot that Officer Kazimer testified

9
that D’Amato stopped, and he and Officer Ortiz were able to get control of the scene. (Doc. No. 35-
1 at 69:16-20.) As such, the Court finds that this case presents “a single factual context” in which
Officer Kazimer’s use of force was responsive to D’Amato’s acts of resistance and occurred before
his arrest. See Hayward, 759 F.3d at 612 n.4. Because pre-arrest excessive force is an affirmative
defense to a charge of resisting arrest in Ohio, D’Amato’s success on his excessive force claim would
render his conviction for resisting arrest invalid. Therefore, D’Amato’s claim is barred by Heck.6

Additionally, the Court finds D’Amato’s reliance on Phillips v. Curtis, 765 F. App’x 130 (6th
Cir. 2019) unpersuasive. (Doc. No. 42 at 14-15.) In Phillips, the defendants argued that the plaintiff’s
excessive force claim was barred by her guilty plea to wantonly endangering an officer. 765 F. App’x
at 131. The Sixth Circuit held that the district court had been premature in its dismissal of the
plaintiff’s claim at the motion to dismiss stage, reasoning:
In this case, Phillips purports to identify two separate incidents, one when she
endangered Curtis, the other when he opened fire. To be sure, if the two incidents
happened at roughly the same time—or in legitimate response to one another—Heck
would bar her lawsuit. For placing Curtis in substantial danger of serious death or
injury would mean that, at that moment, Curtis could use deadly force. See Garner,
471 U.S. at 11, 105 S.Ct. 1694. But Phillips says that she placed Curtis’s life in
jeopardy at point one, she ceased to be a threat at point two, and only after that did
Curtis shoot her. Under that scenario, assuming a material gap in time between the
two events, her victory in this lawsuit would not necessarily invalidate her criminal
conviction.

6 The Court acknowledges that there appears to be some support for the argument that a claim is not barred by Heck where
the suspect resisted before the alleged use of excessive force—as D’Amato did here by running before he was shot—even
if the force occurred before the completion of the arrest. See Swiecicki, 463 F.3d at 494-95 (“If Swiecicki resisted (i.e.,
jerked his arm away), and if the resistance occurred before the use of force by Delgado, his conviction for resisting arrest
would not be called into question even if he later recovered on a § 1983 excessive-force claim.”); Sigley v. Kuhn, Nos.
98-3977, 99-3531, 2000 WL 145187, at *1, *4 (6th Cir. Jan. 31, 2000) (permitting excessive force claim when “Kuhn
made a lawful attempt to arrest Sigley for drunk driving,” “Sigley unlawfully resisted,” and Kuhn shot Sigley in the back
as he fled). Nonetheless, the Sixth Circuit has made clear that it “has only gone as far as to allow a § 1983 claim for
excessive force where the alleged force occurred after the resistance and the completion of the arrest,” Hayward, 759
F.3d at 612 n.4, and this Court is bound by that decision.
10
Id. at 132.
Phillips is easily distinguishable from the circumstances presented here. First, the court was
assessing the application of Heck with regard to a prior conviction for wantonly endangering an
officer—not resisting arrest. Thus, D’Amato’s attempt to analogize to Phillips with respect to when
he ceased to be a threat is irrelevant. (Doc. No. 42 at 15.) Under Hayward, the relevant inquiry in
this case is not whether the force was used after the suspect ceased to be a threat to the officer, but

whether the force was used before or after the suspect had ceased resisting and the completion of the
arrest. Further, regardless of the different underlying offenses, Phillips recognized that the plaintiff’s
claim may not have been barred only if there was “a material gap in time between the two events.”
765 F. App’x at 132. Here, there was no material gap in time between Officer Kazimer’s use of force
and D’Amato’s resistance, as the two occurred at the same time and the entire incident lasted only
seconds.7 Accordingly, Heck bars D’Amato’s § 1983 excessive force claim, and Officer Kazimer is
entitled to summary judgment.
b. Monell Liability
Defendants also move for summary judgment with respect to D’Amato’s § 1983 claim against
the City. (Doc. No. 35 at 13-20.) In his Complaint, D’Amato alleges that the City engaged in a

variety of wrongful conduct with respect to the training, supervision, and investigation of its officers.
(Doc. No. 1 at ¶¶ 58-65.) In his opposition to Defendant’s Motion for Summary Judgment, however,
D’Amato alleges only that the City “has an official custom, policy and/or practice of investigating

7 Although not cited by D’Amato, the simultaneous nature of Officer Kazimer’s use of force and D’Amato’s resistance
also distinguishes this case from Lucier v. City of Ecorse, which was cited in Phillips and which involved two separate
incidents, one occurring in the suspect’s basement and one occurring later in time after the suspect had been placed in a
patrol car. 601 F. App’x 372, 377 (6th Cir. 2015).
11
police misconduct, specifically excessive force, in such a manner that City of Cleveland officers are
absolved of any wrongdoing.” (Doc. No. 41 at 14.) Defendants assert summary judgment is
warranted because D’Amato’s § 1983 claim against Officer Kazimer is barred by Heck—and
therefore the City cannot be held liable in the absence of a constitutional violation—and because
D’Amato has failed to present sufficient evidence to support his claim against the City. (Doc. No. 35
at 13-20.) The Court agrees with the City on both bases.

First, “[r]egarding 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 F. App’x 418, 429 (6th Cir. 2006) (quoting
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Because the Heck doctrine precludes
D’Amato from establishing a constitutional violation by Officer Kazimer, his municipal liability
claim also fails. See Badri v. City of Shaker Heights, Ohio, No. 1:06CV2343, 2007 WL 184735, at
*3 (N.D. Ohio Jan. 19, 2007) (“As Dr. Badri’s claims are barred by the doctrine established in Heck,
he cannot prove a violation of a constitutional right in his claim of municipal liability under 42 U.S.C.
§ 1983.”). As such, the City is entitled to summary judgment on D’Amato’s § 1983 claim.
Moreover, even assuming D’Amato could prove a constitutional violation by Officer

Kazimer, he has failed to present sufficient evidence in support of his claim against the City. Pursuant
to the Supreme Court’s holding in Monell v. Dep’t of Soc. Services of City of New York, a municipality
“may not be sued under § 1983 for an injury inflicted solely by its employees or agents.” 436 U.S.
658, 694 (1978). Instead, “municipal liability attaches only where a constitutional violation results
from the ‘execution of a government’s policy or custom.’” Cherrington v. Skeeter, 344 F.3d 631,
645 (6th Cir. 2003) (quoting Gregory v. Shelby County, 220 F.3d 433, 441 (6th Cir. 2000)).

12
A plaintiff may prove the existence of a municipality’s illegal policy or custom by looking to
“(1) the municipality’s legislative enactments or official agency policies; (2) actions taken by officials
with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a
custom of tolerance or acquiescence of federal rights violations.” Thomas v. City of Chattanooga,
398 F.3d 426, 429 (6th Cir. 2005). “A necessary factor in all of these considerations is that, for a
Monell claim to be viable, the municipal action (or inaction) must have been the moving force behind

the constitutional harm.” France v. Lucas, No. 1:07CV3519, 2012 WL 5207555, at *10 (N.D. Ohio
Oct. 22, 2012); see also Powers v. Hamilton Cty. Pub. Def. Comm'n, 501 F.3d 592, 607 (6th Cir.
2007) (“[L]iability will attach only where the plaintiff establishes that the municipality engaged in a
‘policy or custom’ that was the ‘moving force’ behind the deprivation of the plaintiff’s rights.”).
Here, there is simply not enough evidence to support a finding of Monell liability against the
City. In Defendants’ Motion for Summary Judgment, Defendants presented evidence of the City’s
policies and procedures with respect to its training, supervision, and investigations into police
misconduct. (Doc. No. 35 at 17-21.) D’Amato has not challenged any of these policies or procedures
as inadequate.
Instead, in support of his claim against the City, D’Amato references a December 2014 report

by the U.S. Department of Justice (“DOJ”) regarding an investigation into Cleveland Police
Department practices and a related consent decree entered into between the City and the DOJ. (Doc.
No. 41 at 15.) However, D’Amato has not actually submitted either document to the Court or cited
any specific findings that would support his claim. Moreover, courts have generally refused to permit
plaintiffs to rely on such evidence. See Warren v. Tankersley, No. 1:14–CV–1006, 2015 WL
5567103, at *4 (N.D. Ohio Sept. 21, 2015) (“Plaintiff asks this Court to adopt the results of a recent

13
investigation conducted by the Department of Justice (‘DOJ’) into the Cleveland Police Department
practices as evidence to support his Monell claim in this matter. . . . Plaintiff provides no legal support
for such argument, and does not convince this Court that these DOJ findings apply to the case before
this Court.”).
The only other piece of evidence related to the City’s policies or customs that D’Amato cites
is a list of cases provided by D’Amato in discovery in which complaints were filed against the City

based on the City’s unconstitutional customs, practices, and policies. (Doc. No. 41 at 15.) Again,
D’Amato does not attach any documents related to these cases, point to any of their specific findings,
or explain why they are relevant to D’Amato’s claim. Courts are “not required to speculate on which
portion of the record the non-moving party relies, nor is there an obligation to ‘wade through’ the
record for specific facts.” United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir. 1993) (quoting
InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989)). In addition, D’Amato does not
even allege that any of these cases actually resulted in a judgment against the City.
Accordingly, the Court finds that D’Amato has failed to point to any competent evidence that
would establish a genuine issue of material fact with respect to his claim against the City, and
summary judgment is appropriate for this additional reason.

c. State Law Claims
The remainder of D’Amato’s claims arise under Ohio law, and diversity is lacking in this
case. Pursuant to 28 U.S.C. § 1367(c)(3), district courts may decline to exercise supplemental
jurisdiction over state law claims once they have dismissed all claims over which they had original
jurisdiction. “In determining whether to retain jurisdiction over state-law claims, a district court
should consider and weigh several factors, including the ‘values of judicial economy, convenience,

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fairness, and comity.’” Gamel v. City of Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010) (quoting
Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). However, “[w]hen all federal claims
are dismissed before trial, the balance of considerations usually will point to dismissing the state law
claims, or remanding them to state court if the action was removed.” Musson Theatrical, Inc. v. Fed.
Exp. Corp., 89 F.3d 1244, 1254-55 (6th Cir. 1996). Having disposed of D’Amato’s federal claims
and considering the relevant factors, the Court declines to exercise supplemental jurisdiction over the

remaining state law claims and dismisses them without prejudice. See Shaver v. Brimfield Twp., 628
F. App’x 378, 384 (6th Cir. 2015) (“[B]ecause the district court properly dismissed the Estate’s
federal claims, it did not abuse its discretion when it declined to exercise jurisdiction over the Estate’s
state law claims.”).
IV. Conclusion
For the reasons set forth above, Defendants’ Motion for Summary Judgment (Doc. No. 35) is
GRANTED as to D’Amato’s first and fifth causes of action brought under 42 U.S.C. § 1983. The
remaining state law claims are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.

s/Pamela A. Barker
PAMELA A. BARKER
Date: March 20, 2020 U. S. DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10368196. Public record. Not legal advice.