Howard v. Onion

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

:

DEVIN D. HOWARD, : CASE NO. 1:20-cv-02802

:

Plaintiff, : OPINION & ORDER

: [Resolving Docs. 50, 51, 52, 53]

v. :

:

JAMIE ONION, et al., :

:

Defendants. :

:

JAMES S. GWIN, UNITED STATES DISTRICT COURT JUDGE:

In July 2018, officers searched an apartment where Plaintiff Devin Howard

lived with his brother. During the search, the officers found and seized an AR-15 rifle.

Howard sued, arguing that the search and seizure were unlawful. The Court dismissed most

of Plaintiff’s claims, and only two claims remain.1

First, Howard has a § 1983 claim against Defendants Jamie Onion, Ronald Parmertor,

Michael Gerardi, and Greg Leonbruno (the Officer Defendants). Howard alleges that the

Officer Defendants violated his Fourth Amendment rights when they searched his apartment

and seized his rifle.

Second, Howard has a conversion claim against Defendant City of Willoughby Hills,

also based on the seizure of his rifle.

The Officer Defendants now seek summary judgment on the § 1983 claim, asserting

that they are protected by qualified immunity.2 The Officer Defendants argue that they

1 , No. 21-3515, 2022 WL 2065950, at *3 (6th Cir. May 17, 2022).

2 Doc. 51. Although the City technically joins the Officer Defendants’ motion, the § 1983 claim is not asserted against the

received consent from Plaintiff’s brother to search the apartment and that the plain view

doctrine authorized them to seize the AR-15 rifle.

None of the Defendants addressed Plaintiff Howard’s conversion claim against the

City. However, in its review of the record, the Court identified that the City may be immune

from the conversion claim under Ohio’s Political Subdivision Tort Liability Act. The Court

ordered the parties to file briefs discussing the City’s potential immunity.3 Defendants filed

a brief by the Court’s deadline,4 but as of the date of this Order, the Court has still not

received Plaintiff’s brief.

For the following reasons, the Court finds that the Officer Defendants are protected

by qualified immunity and that the City is immune from Plaintiff Howard’s conversion claim.

The Court therefore GRANTS summary judgment in favor of all Defendants on all claims.5

There are also several pending discovery disputes. The Court finds that none of those

discovery disputes would affect its summary judgment decision. So, the Court also DENIES

all pending discovery motions and OVERRULES Plaintiff Howard’s objections to the

Magistrate Judge’s discovery order.

I. SUMMARY JUDGMENT

A. Legal Standard

A court may grant summary judgment if a moving party “shows that there is no

genuine dispute as to any material fact and the [moving party] is entitled to judgment as a

3 Doc. 61.

4 Doc. 62.

5 In Plaintiff Howard’s opposition to summary judgment, Howard asks the Court to strike Defendants’ motion because they

exceeded page limits. Doc. 57 at 4–5. Defendants’ motion is six lines too long. Doc. 51. That is only a minor

violation of the page limit rules, and the extra material is mostly not substantive. Because this minor violation did not

prejudice Howard, the Court will not strike Defendants’ motion. But the Court reminds Defendants that they must adhere

matter of law.”6 A dispute is genuine if a reasonable jury could decide in favor of the non-

moving party.7 And a fact is material if resolving it might affect the outcome of the case.8

The moving party has the initial burden of identifying evidence to show that there is

no genuine dispute of material fact.9 Alternatively, if the moving party does not have the

burden of proof at trial, it may also show “that there is an absence of evidence” supporting

the non-moving party’s case.10 Once the moving party meets its initial burden, the non-

moving party must offer specific facts showing that there is a genuine dispute.11

When evaluating the evidence for summary judgment, the court “should view the

facts and draw all reasonable inferences in favor of the non-moving party.”12 However, a

mere “scintilla of evidence” will not create a dispute—there must be enough evidence for a

jury to find in favor of the non-moving party.13

While courts often rule on summary judgment in response to a motion, a court may

grant summary judgment on an issue not raised by the parties.14 Before it can do that, the

court must identify the relevant issue for the parties, provide notice, and offer the parties a

chance to respond.15

6 Fed. R. Civ. P. 56(a).

7 , 469 F.3d 479, 487 (6th Cir. 2006) (citing , 355

F.3d 444, 451 (6th Cir. 2004)).

8 (citing , 355 F.3d at 451). Plaintiff Howard objects that portions of the Officer Defendants’ brief are not backed

by evidence as required by Federal Rule of Civil Procedure 56. Doc. 57 at 8. The Court does not consider factual assertions

unsupported by allowable evidence.

9 , 477 U.S. 317, 323 (1986).

10 at 325.

11 , 533 F.3d 381, 390 (6th Cir. 2008) (citation omitted).

12 , 901 F.3d 619, 628 (6th Cir. 2018) (citing

, 475 U.S. 574, 587 (1986)).

13 , 477 U.S. 242, 252 (1986).

14 Fed. R. Civ. P. 56(f)(3).

B. Section 1983 Claim

The Officer Defendants seek summary judgment on the ground that they are protected

by qualified immunity.16 Under qualified immunity, the Officer Defendants are protected

from liability unless they (1) violated a constitutional right, and (2) that constitutional right

was clearly established.17

When determining whether a right is clearly established, courts cannot define that

right “at a high level of generality.”18 Rather, the right “must be ‘particularized’ to the facts

of the case.”19 A right may be clearly established even if there has not been a perfectly

analogous case, but that right must be clear enough that any reasonable official would be

aware of it.20

Plaintiff Howard bears the burden of showing that qualified immunity does not

apply.21 This means that, to defeat summary judgment, Howard must offer “facts and

inferences [that] would allow a reasonable juror to conclude that the [Officer Defendants]

violated a clearly established constitutional right.”22

Here, there are two components to Howard’s Fourth Amendment claim: (1) the search

of the apartment that Howard shared with his brother and (2) the seizure of Howard’s rifle.

The Court addresses each in turn.23

16 Doc. 51; , 457 U.S. 800, 818 (1982).

17 , 636 F.3d 757, 765 (6th Cir. 2011) (citing , 129 S. Ct. 808, 816 (2009)).

18 , 938 F.3d 271, 278 (6th Cir. 2019) (quoting , 563 U.S. 731, 742 (2011)).

19 (quoting , 580 U.S. 73, 79 (2017)).

20 (citations omitted).

21 , 502 F.3d 484, 491 (6th Cir. 2007) (citation omitted).

22 , 9 F.4th 416, 431 (6th Cir. 2021) (citation omitted).

23 Plaintiff Howard also argues that the Officer Defendants lacked authority to act. He asserts that the Officer Defendants

could not have been acting as U.S. Marshals, and so far as they were acting as officers of the Willoughby Hills Police

Department, the search and seizure took place outside of the police department’s territorial jurisdiction. Doc. 57 at 9–10.

However, the Officers Defendants do not argue that they were acting as U.S. Marshals (Doc. 51), and the Court does not

find this issue relevant. As to Howard’s territorial jurisdiction argument, it is unclear whether state law allows police to

conduct searches outside their jurisdiction when someone consents. , 520 N.E.2d 240, 243 (Ohio Ct. App.

1. Warrantless Search

Plaintiff Howard alleges that the Officer Defendants violated his Fourth Amendment

rights when they conducted a warrantless search of the apartment that Howard shared with

his brother.24

In their summary judgment motion, the Officer Defendants concede that they did not

have a warrant.25 Instead, the Officer Defendants argue that their search was justified

because they received consent from Howard’s brother.26

The Officer Defendants are correct that law enforcement may search a home without

a warrant if consent is given.27 However, the person giving consent must have the actual or

apparent authority to consent.28 The consent must also be “voluntary, unequivocal, specific,

intelligently given, and uncontaminated by duress or coercion.”29

Here, Plaintiff Howard’s brother gave consent to search all areas of the apartment

“which could contain a firearm and currency.”30 Therefore, the Officer Defendants’ search

was legal unless Howard’s brother lacked authority, the consent was not voluntary, or if the

Officer Defendants went beyond the scope of consent. Howard argues only that the consent

was not voluntary and that the Officer Defendants exceeded the scope of consent.31

clear that state laws about police jurisdiction are relevant in the federal Fourth Amendment context. Regardless, Howard

has not provided evidence to back up his assertion that his apartment was outside the Willoughby Hills Police Department’s

territorial jurisdiction, so the Court does not credit his argument.

24 Doc. 17 at ¶¶ 12–17.

25 Doc. 51.

26 at 9–10.

27 , 606 F.3d 875, 881 (6th Cir. 2010) (citation omitted).

28 , 526 F.3d 953, 962 (6th Cir. 2008) (citation omitted).

29 , 569 F.3d 597, 602 (6th Cir. 2009) (citations omitted).

30 Doc. 51-2.

a. Voluntariness

Whether consent is voluntary depends on the totality of the circumstances.32 In

evaluating the totality of the circumstances, the Court looks to both the characteristics of the

consenter and, if the consenter was detained, the detention characteristics.33 The

government has the burden to prove that consent was voluntary.34

At the first step of the qualified immunity analysis, the Court finds there is no genuine

dispute that the consent was voluntary. As the Officer Defendants explained, Plaintiff

Howard’s brother signed a search consent form. By signing that consent form, Howard’s

brother affirmed that: (a) he knew he could deny consent, (b) he knew law enforcement

would need a warrant if he refused to consent, and (c) anything found in the search could

be used against him.35 Howard’s brother also affirmed that he was consenting “voluntarily

and of [his] own free will, without having been subjected to any coercion.”36 Further,

Defendant Police Officer Jamie Onion testified that he explained the consent form to

Howard’s brother, including telling Howard’s brother that he could withdraw consent.37

Since the Officer Defendants produced evidence showing that the consent was

voluntary, Plaintiff Howard then has the burden to produce evidence creating a factual

dispute about voluntariness.38 Howard has failed to meet that burden.

To begin, Howard points to evidence that his brother could not read.39 But the fact

that Howard’s brother could not read does not mean that Howard’s brother could not

32 , 412 U.S. 218, 227 (1973).

33 , 902 F.3d 630, 639 (6th Cir. 2018).

34 , 659 F.3d 560, 571 (6th Cir. 2011).

35 Doc. 51-2.

36

37 Doc. 51-3 at ¶ 5.

38 , 533 F.3d at 390.

understand what he was consenting to.40 More importantly, Howard’s brother was not

required to read the consent form—Defendant Onion explained the contents of the consent

form verbally.41

Next, Howard suggests that there are inconsistencies in the record that create a factual

dispute. Howard implies that it is contradictory for the Officer Defendants to say that

Howard’s brother was able to understand the consent form while also saying that Defendant

Onion explained the form to Howard’s brother.42 The Court disagrees. There is nothing

contradictory about both being true at the same time.

Howard also observes that the Officer Defendants stated in discovery that they could

not recall assisting Howard’s brother with the consent form.43 But failing to recall whether

Howard’s brother needed assistance is not the same as affirmative evidence showing

Howard’s brother could not understand the consent form or was coerced into consenting.

With this argument, Howard is pointing out a supposed of evidence. But as the Court

just explained, the Officer Defendants produced enough evidence to meet their burden

already. And Howard cannot survive summary judgment by pointing to a lack of evidence

because Howard has the final burden of proving that qualified immunity does not apply. 44

In a final attempt to create a factual dispute, Howard makes two last arguments. First,

Howard claims that it was absurd for the Officer Defendants to take the time to read the

consent form to his brother.45 According to Howard, the situation was so urgent that the

40 , No. 3:19-cr-55, 2021 WL 4592816, at *4 (E.D. Tenn. Oct. 6, 2021) (finding that inability to

read and write alone did not invalidate a consent to search).

41 Doc. 51-3 at ¶ 5.

42 Doc. 57 at 11 (citing Doc. 51-3; Doc. 57-5).

43 at 12 (citing Doc. 57-7).

44 , 9 F.4th at 431.

Officer Defendants could not have spared the time to read the form aloud.46 Second,

Howard claims that his brother was detained for two hours before signing the consent form.47

Neither of those claims are supported by evidence. Nothing in the record suggests

there was not enough time to read a short, one-page form.48 And Howard relies on

allegations in his complaint, not evidence, to back up the claim that his brother was in

custody for two hours.49

Additionally, even if Howard had evidence that his brother was interrogated for two

hours, “custody, standing alone, [is] insufficient to indicate consent was coerced.”50 Howard

has produced no other facts suggesting that his brother’s consent was involuntary, so his

brother’s interrogation does not create a fact dispute.

In short, there is no evidence in the record showing that Plaintiff Howard’s brother

could not understand his rights. There is no evidence that Howard’s brother could not

understand the officers’ questions or request to search the apartment. And there is no

evidence that any officer ever threatened Howard’s brother or attempted to coerce him.

Plaintiff Howard has therefore failed to establish any dispute that his brother’s consent was

voluntary.51

For similar reasons, Howard has also failed to meet his burden at step two of the

qualified immunity analysis. Howard has not pointed to any case law clearly establishing

that consent is not voluntary under these circumstances.

46 Doc. 57 at 12.

47

48 Doc. 51-2.

49 Doc. 57 at 12 (citing Doc. 17 at ¶ 12).

50 , 133 F.3d 943, 954 (6th Cir. 1998) (citing , 423 U.S. 411 (1976)).

51 , 280 F. App’x 513, 517 (6th Cir. 2008) (finding voluntary and intelligent consent when the

b. Scope

Plaintiff Howard also argues that the Officer Defendants exceeded the scope of

consent by taking photographs.52 However, the Sixth Circuit has held that officers

conducting an otherwise lawful search do not exceed the scope of that search simply by

taking photographs of what they saw.53 So, the Officer Defendants did not violate Howard’s

rights by taking pictures, let alone violate a clearly established right.

2. Warrantless Seizure

In addition, Plaintiff Howard alleges that the Officer Defendants violated his Fourth

Amendment rights when they seized a rifle from his apartment.54 The Officer Defendants

argue that the seizure was legal under the plain view doctrine.

Under the plain view doctrine, police may seize an object without a warrant when

four conditions are met: “(1) the object must be in plain view; (2) the officer must be legally

present in the place from which the object can be plainly seen; (3) the object's incriminating

nature must be immediately apparent; and (4) the officer must have a right of access to the

object.”55

As the Court just found above, the Officer Defendants were lawfully searching

Howard’s apartment, so the Officer Defendants were legally present. And as a photograph

taken during the search shows, the rifle was in plain view, unobstructed by anything that

would impede the Officer Defendants’ right of access.56 Indeed, Howard does not challenge

the first, second, or fourth elements of the plain view doctrine.

52 Doc. 57 at 13.

53 , 958 F.2d 697, 707 (6th Cir. 1992).

54 Doc. 17 at ¶¶ 12–17.

55 , 496 F.3d 495, 508 (6th Cir. 2007) (citing , 496 U.S. 128, 136–37 (1990);

, 310 F.3d 434, 438–39 (6th Cir. 2002)).

56 Doc. 57-10 (photograph); Doc. 57 at 14–15 (noting that the photo depicts the rifle prior to seizure); Doc. 51-3 at ¶ 11

Howard challenges only the third element of the plain view doctrine, arguing that his

rifle’s incriminating nature was not immediately apparent. However, Defendants Jamie

Onion and Michael Gerardi both testified that they could immediately tell Howard’s rifle

was too short and likely illegal.57 And as the Sixth Circuit has repeatedly held, the shortness

of a gun’s barrel is enough to satisfy the third element of the plain view doctrine.58

Plaintiff Howard’s counterargument is not persuasive. Howard claims that, because

Defendant Onion asked Defendant Gerardi for a second opinion and the two officers

confirmed the length of the rifle after seizing it, the two officers had doubts about the

incriminating nature of the rifle.59

But the plain view doctrine does not require certainty. It requires only probable

cause.60 The evidence shows that Defendants Onion and Gerardi obtained probable cause

when they viewed the rifle, even if neither was absolutely sure the rifle was illegally short.

Consequently, Plaintiff Howard’s seizure claim fails at step one of qualified immunity

because the plain view doctrine applies.61

The seizure claim also fails at step two. Rather than clearly establishing that Howard

has a Fourth Amendment right in these circumstances, Sixth Circuit case law clearly

establishes that it violate the Fourth Amendment to seize a short-barreled rifle under

the plain view doctrine.62

57 Doc. 51-3 at ¶¶ 9–10 (Defendant Onion); Doc. 51-4 at ¶¶ 6–7 (Defendant Gerardi).

58 , 426 F. App'x 378, 383 (6th Cir. 2011) (collecting cases).

59 Doc. 57 at 15.

60 , 310 F.3d at 441 (“[T]he Supreme Court does not require that officers that evidence is contraband. . . . It

merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain

items may be contraband or stolen property or useful as evidence of a crime.”) (internal quotation marks omitted) (quoting

, 460 U.S. 730, 742 (1983)).

61 The Officer Defendants briefly raised the community caretaker exception as an alternative to the plain view doctrine.

Doc. 51 at 6, 18. Because the Court grants summary judgment on the plain view doctrine, it does not address that alternative

argument.

* * *

For the reasons given above, the Court finds that the Officer Defendants are protected

by qualified immunity and GRANTS summary judgment in favor of the Officer Defendants

on Plaintiff’s § 1983 claim.

C. Conversion Claim

Plaintiff Howard also alleges a state-law conversion claim against Defendant City of

Willoughby Hills.63 Like the § 1983 claim, Howard’s conversion claim is based on the

seizure of Howard’s rifle.

The Court concludes that the City is immune from Plaintiff’s claim.

Ohio courts apply a three-part test to determine whether a city is immune under the

Tort Liability Act.64 First, they consider whether the general immunity rule applies: cities are

immune from torts that are allegedly committed “in connection with a governmental or

proprietary function.”65 Second, if there is general immunity, the courts ask if one of the five

exceptions to immunity under Ohio Revised Code § 2744.02(B) applies.66 Finally, if one of

those exceptions applies, the courts ask if one of the defenses in Ohio Revised Code

§ 2744.03 applies.67

At the first step of this test, the Court finds that general immunity applies. When the

Officer Defendants seized Howard’s rifle, they were performing police work, a governmental

function.68 And when the City later destroyed Howard’s rifle as contraband, they were

63 Doc. 17 at ¶ 24.

64 , 110 Ohio St. 3d 194, 196–97 (2006).

65 (quoting Ohio Rev. Code § 2744.02(A)(1)).

66 at 197.

67

likewise performing a governmental function permitted by Ohio law.69 Because both actions

are governmental functions, both are protected by immunity.

Turning to the second step of the test, the Court finds that none of the exceptions to

immunity apply. Section 2744.02(B) identifies five exceptions. The first four all relate to

negligence.70 Since conversion is an intentional tort, those exceptions do not apply.71 The

final exception is a catch-all for any exceptions explicitly provided by other Ohio statutes.72

Plaintiff Howard has not identified any such statutes, so this last exception does not apply

either.73

Because general immunity applies and there is no exception, the City is immune from

Howard’s conversion claim. The Court GRANTS summary judgment in favor of the City.

II. DISCOVERY DISPUTES

Plaintiff Howard also has two pending motions to compel and one pending objection

to the Magistrate Judge’s discovery order.74 Most of these discovery disputes are not relevant

to the Court’s summary judgment analysis. Only three disputes are arguably relevant, so the

Court addresses those specifically.

First, Howard argues that Defendants gave an evasive response to a discovery request

about how long police interrogated Howard’s brother.75 This is arguably relevant to the

question of whether the consent to search was voluntary. As the Court found above, though,

even if the interrogation lasted two hours as Howard claims, that fact alone does not create

69 Doc. 57-9 (interrogatory response indicating that Defendants had destroyed Plaintiff Howard’s rifle under Ohio Revised

Code § 2981.12(B)).

70 Ohio Rev. Code §§ 2744.02(B)(1)–(4).

71 , No. 18AP-567, 2019 WL 3573586, at *7 (Ohio Ct. App. Aug. 6, 2019).

72 , 162 N.E.3d at 1280 (citing Ohio Rev. Code § 2744.02(B)(5)).

73 (declining to apply the fifth exception when the plaintiff did not identify relevant statutory provisions).

74 Docs. 50, 52, 53.

a dispute about voluntariness.76 Thus, compelling a more detailed response from Defendants

would not change the summary judgment analysis, and this discovery dispute is moot.

Second, Howard claims that Defendants’ document production was not reasonably

usable because Howard did not have access to a computer that he could use to view the

production.77 However, it appears Howard could access Defendants’ production. The

production contained photographs taken during the search, and Howard attached such a

photograph to his summary judgment opposition.78 As such, the Court denies Howard’s

motion to compel as to this discovery dispute.

Finally, Howard complains about Defendants’ discovery responses regarding the

items seized from Howard’s apartment. Defendants say that they seized only a rifle,79 but

Howard believes that they also seized ammunition.80 To justify his belief, Howard relies on

the fact that Defendants asked about ammunition in an interrogatory to Howard.81

The Magistrate Judge did not compel Defendants to supplement their responses

regarding the items seized,82 and Howard objected to that decision.83

District courts can reverse a non-dispositive magistrate judge order only if the order

contains clear error or is contrary to law.84 Howard does not argue that the Magistrate Judge

applied the wrong legal standard, and the Court finds no clear error. As the Magistrate Judge

76 Section I.B.1.a.

77 Doc. 53-2 at 8 & n.20.

78 at 6 (Request for Production No. 6); Doc. 57-10 (photograph taken during search).

79 Doc. 48 at 4.

80 Doc. 52 at 3–4.

81 at 4.

82 Doc. 48 at 4–5.

83 Doc. 52 at 3–6.

84 , No. 5:14-cv-2691, 2015 WL 4645002, at *1 (N.D. Ohio Aug. 4, 2015) (citations

correctly ruled, mere suspicion that a party has not produced all information is not enough

to compel more discovery.85

The fact that Defendants asked about ammunition at an earlier point in discovery does

create more than a mere suspicion. Parties learn more about the facts as discovery moves

forward. While earlier in this case, Defendants may have been unsure if ammunition was

seized, they have since represented to the Court that no ammunition was seized.86 Without

stronger reason to doubt that representation, the Court finds no clear error. The Court

therefore overrules Howard’s objection on this discovery issue.

As for all discovery issues that the Court did not specifically address above, the Court

finds that those issues are irrelevant to summary judgment and are moot. So, the Court

DENIES Howard’s motions to compel and OVERRULES Howard’s objections.

III. CONCLUSION

The Court GRANTS summary judgment in favor of all Defendants on all remaining

claims. The Pretrial Conference scheduled for October 10, 2023, as well as all other dates

and deadlines, are VACATED.

All pending discovery motions are DENIED, and Plaintiff Howard’s objections to the

Magistrate Judge’s discovery order are OVERRULED. 87

IT IS SO ORDERED.

Dated: September 29, 2023

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

85 Doc. 48 at 4 (citing , No. 2:10-cv-444, 2011 WL 5326133, at *2 (S.D. Ohio Nov. 4, 2011)).

86 Doc. 41 at 1–2 (“The answers provided are complete answers and constitute a specific and detailed list of items taken

during the course of the search.”).

87 Plaintiff Howard also raises discovery issues in his opposition to the Officer Defendants’ motion for summary judgment.

Doc. 57 at 5–8. To the extent those discovery arguments can be construed as a motion to compel or for discovery sanctions,