Callan v. Kempf

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

Jeremy Callan, ) CASE NO. 5:23 CV 1158

)

Plaintiff, ) JUDGE PATRICIA A. GAUGHAN

)

vs. )

)

Dustin Kempf, et al., ) Memorandum of Opinion and Order

)

Defendants. )

Introduction

This matter is before the Court upon defendants’ Motion for Judgment on the Pleadings.

(Doc. 28). This case arises from several incidents involving plaintiff and Jackson Township

police officers over a two-week period in June and July 2022. For the following reasons, the

motion is GRANTED.

Facts

Plaintiff Jeremy Callan, proceeding pro se, filed his Second Amended Complaint (the

“complaint”) against defendants Dustin Kempf, Nicholas Marich, Evan Betz, Josh Escola, Jun Yan,

and Jackson Township.1 The individual defendants are Jackson Township police officers.

1 Plaintiff attached the proposed Second Amended Complaint to his motion to amend. However, once

the Court granted the motion to amend, plaintiff did not file the Second Amended Complaint as

required. Given plaintiff’s pro se status, the Court will assume the pleading has been filed.

All well-pleaded factual allegations in the complaint are presumed true. However, the Court

also considers the body-worn camera (“BWC”) recordings,2 police reports, and dispatch records

submitted by defendants and referred to by plaintiff throughout his pleading.3 Additionally, the

Court considers the Massillon Municipal Court dockets of plaintiff’s three criminal cases, which are

also referred to in the complaint.4

The complaint addresses the following events occurring between June 30, 2022 and July 12,

2022.

June 30, 2022

On June 30, 2022, Officers Zachary VanVoorhis and Kelly Vigars5 were dispatched to

plaintiff’s neighbor’s house for a complaint that plaintiff was using his sprinklers to cause damage

to their property and security cameras. On July 5, 2022, plaintiff was charged in the Massillon

2 Where there is video footage of the event, the court must view the facts “in the light depicted by

the videotape.” Green v. Throckmorton¸ 681 F.3d 853, 859 (6th Cir. 2012). However, where the facts

of the video recording do not blatantly contradict Plaintiff's “entire version of the events’ in material

respects to each claim,” the Court must still view the evidence in the light most favorable to Plaintiff,

the nonmovant. Hanson v. Madison Cnty. Det. Ctr., 736 F. App’x 521, 527 (6th. Cir. 2018)

(quoting Coble v. City of White House, Tenn., 634 F.3d 865, 870 (6th Cir. 2011).

3 “When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and

any exhibits attached thereto, public records, items appearing in the record of the case and

exhibits attached to defendant’s motion to dismiss so long as they are referred to in the

Complaint and are central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic

Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (citing Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir.

2001).

4 The Court may take judicial notice of the public dockets and proceedings in other courts. See

Walburn v. Lockheed Martin Corp., 431 F.3d 966, 972 n.5 (6th Cir. 2005) (citations omitted).

5 VanVoorhis and Vigars are not parties to this action.

Municipal Court with criminal mischief in connection with the incident.6 The charges were later

dismissed, but the court found probable cause for plaintiff’s arrest.

July 3, 2022

On July 3, 2022, Officers Kempf and Marich responded to a call-for-service at plaintiff’s

home that he shared with his wife and daughter for a domestic dispute. Plaintiff’s wife reported that

plaintiff was yelling at her and breaking things. She had locked herself, her daughter, and her dogs

in a bathroom. In the background of the call, plaintiff was yelling that he broke into the house

because she locked him out. Plaintiff’s neighbor also called the police stating that she heard

plaintiff yell and saw him throw a piece of wood over the back fence.

Upon arrival to the residence, Kempf began talking to the neighbor while Marich remained

in front of the residence. Plaintiff began to approach Marich from the direction of his house while

holding an object. Marich drew his firearm and ordered plaintiff to put his hands up, but plaintiff

continued to walk toward Marich. Plaintiff continually refused to comply with Marich’s orders that

he drop the object and get on the ground. However, upon identifying the object as an e-cigarette,

Marich switched out his firearm with a taser. Eventually, the officers secured plaintiff in handcuffs,

performed a search, and placed him in the back of Kempf’s vehicle.

As a result of these events, plaintiff was charged in the Massillon Municipal Court with

Obstructing Official Business and Domestic Violence,7 and on July 7, 2022, the court granted

plaintiff’s wife a restraining order against him. Marich testified at the protection order hearing. The

6 State of Ohio v. Callan, Massillon Municipal Court, Case 2022CRB01495.

7 State of Ohio v. Callan, Massillon Municipal Court, Case 2022CRB01484.

3

court ordered plaintiff to attend a domestic violence program and agreed to dismiss the domestic

violence charges if plaintiff completed the program, which he did. In its dismissal order, the court

order noted that dismissal was not due to a lack probable cause.

July 11, 2022

On July 11, 2022, Officers Evan Betz and Vigars responded to a call from plaintiff’s wife

regarding complaints that plaintiff harassed her over Facebook. Plaintiff’s wife indicated that

plaintiff hacked her phone, was surveilling her through the phone, and posted the audio recordings

of plaintiff’s wife’s 911 call to social media. Upon review of the evidence and allegations, the

Massillon prosecutor charged plaintiff with violating a protective order.8 The Massillon Municipal

Court Judge dismissed the charge after plaintiff completed the domestic violence program and

indicated in his order that the dismissal was not due to a lack of probable cause.

The complaint does not label any causes of action, but merely intersperses claims

throughout the pleading. Liberally construing the complaint, plaintiff alleges the following

constitutional violations under 42 U.S.C. § 1983:

• On July 3, 2022, Officers Kempf, Marich, and Sergeant Escola used excessive force;

committed unlawful arrest, false imprisonment, malicious prosecution, and an illegal search;

and violated plaintiff’s due process rights.

• On July 5, 2022, Officer Marich committed malicious prosecution in connection with his

testimony at a protective order hearing.

8 State of Ohio v. Callan, Massillon Municipal Court, Case 2022CRB01568.

4

• On July 12, 2022, Officer Betz and Sergeant Escola committed unlawful arrest, false

imprisonment, and malicious prosecution, and violated plaintiff’s right to free speech.

• On July 12, 2022, Officer Yan violated plaintiff’s Fourteenth Amendment right to due

process by making a false report/statement to a witness.

• A Monell claim against Jackson Township in connection with plaintiff’s July 3 and July 12,

2022 arrests.

Additionally, plaintiff requests that Officers Marich and Kempf be criminally charged under 18

U.S.C. §§ 241 and 242.

This matter is now before the Court upon defendants’ Motion for Judgment on the Pleadings.

Standard of Review

A “motion for judgment on the pleadings under Rule 12(c) is generally reviewed under

the same standard as a Rule 12(b)(6) motion.” Mellentine v. Ameriquest Mortg. Co., 2013 WL

560515 (6th Cir. February 14, 2013) (citing EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851

(6th Cir.2001)). “For purposes of a motion for judgment on the pleadings, all well-pleaded

allegations of the pleadings of the opposing party must be taken as true, and the motion may be

granted only if the moving party is nevertheless entitled to judgment.” JPMorgan Chase Bank,

N.A. v. Winget, 510 F.3d 577, 581 (6th Cir.2007).

Thus, “[w]e assume the factual allegations in the complaint are true and construe the

complaint in the light most favorable to the plaintiff.” Comtide Holdings, LLC v. Booth Creek

Management Corp., 2009 WL 1884445 (6th Cir. July 2, 2009) (citing Bassett v. Nat’l Collegiate

Athletic Ass’n, 528 F.3d 426, 430 (6th Cir.2008)). In construing the complaint in the light most

favorable to the non-moving party, “the court does not accept the bare assertion of legal conclusions

5

as enough, nor does it accept as true unwarranted factual inferences.” Gritton v. Disponett, 2009

WL 1505256 (6th Cir. May 27, 2009) (citing In re Sofamor Danek Group, Inc., 123 F.3d 394, 400

(6th Cir.1997). As outlined by the Sixth Circuit:

Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of

the claim showing that the pleader is entitled to relief. Specific facts are not necessary;

the statement need only give the defendant fair notice of what the ... claim is and the

grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However, “[f]actual

allegations must be enough to raise a right to relief above the speculative level” and

to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 555, 570.

A plaintiff must “plead[ ] factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).

Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir.2012). Thus, Twombly and Iqbal require that

the complaint contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face based on factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 570;

Iqbal, 556 U.S. at 678. The complaint must contain “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

Discussion

(1) Request for criminal charges

Plaintiff “asks” the Court to charge Officers Marich and Kempf under 18 U.S.C.

§§ 241 and 242. Plaintiff fails to state a cognizable claim. A private citizen “has no authority to

initiate a federal criminal prosecution of the defendants for their alleged unlawful acts.” Kafele v.

Frank & Wooldridge Co., 108 F. Appx. 307, 308–09 (6th Cir. 2004) (citing Diamond v. Charles,

476 U.S. 54, 64–65 (1986)).

(2) Section 1983

6

(a) Individual officers

(i) Allegations in connection with July 3, 2022 arrest

Plaintiff alleges that on July 3, 2022, Kempf, Marich, and Escola used excessive force;

committed unlawful arrest, false imprisonment, malicious prosecution, and an illegal search; and

violated plaintiff’s due process rights.

“[T]he existence of probable cause for an arrest totally precludes any section 1983 claim for

unlawful arrest, false imprisonment, or malicious prosecution....” Watson v. City of Marysville, 518

Fed.Appx. 390 (6th Cir.2013) (quoting Mark v. Furay, 769 F.2d 1266, 1269 (7th Cir.1985));

Stemler v. City of Florence, 126 F.3d 856, 871–72 (6th Cir.1997) (finding that the existence of

probable cause for arrest forecloses false arrest and malicious prosecution claims).

Here, plaintiff’s unlawful arrest, false imprisonment, and malicious prosecution claims

stemming from his July 3, 2022 arrest fail because the Massillon Municipal Court Judge determined

that there was probable cause to arrest plaintiff. The court agreed to dismiss the charges if plaintiff

attended a domestic violence program. Upon plaintiff’s completion of the program on January 23,

2022, the court dismissed the charges without prejudice “due to the prosecutor’s decision not to

proceed to trial, but not due to lack of probable cause to arrest.” Plaintiff did not appeal the

probable cause finding.9 Accordingly, judgment on the pleadings is warranted on these claims.

Plaintiff’s illegal search claim also fails. “It is well settled that a search incident to a lawful

arrest is a traditional exception to the warrant requirement of the Fourth Amendment.” US v.

9 The Court also agrees with defendants that it is evident from the pleading and the evidence

incorporated therein that probable cause supported plaintiff’s July 3, 2022 arrest. (Doc. 28 at 8-9).

7

Robinson, 414 U.S. 218, 224 (1973). Thus, because the officers had probable cause to arrest

plaintiff, the search incident to his arrest was lawful.

As for excessive force, plaintiff alleges the officers acted unlawfully in two ways during the

July 3, 2022 arrest. First, plaintiff alleges that the officers placed him in handcuffs and held him at

gunpoint while searching him. However, probable cause was found to arrest plaintiff. Thus, the

officers had the “right to use some degree of physical coercion or threat to effect it.” Graham v.

Connor, 490 U.S. 386 (1989); Krantz v. City of Toledo Police Dep’t, 197 F. App’x 446, 452 (6th

Cir. 2006). As the BWC recordings show, Marich and Kempf brandished their firearms when

plaintiff first approached them from the direction of his home. Marich switched his firearm for his

taser upon identifying the object in plaintiff’s hand as an e-cigarette. Kempf similarly holstered his

firearm once plaintiff began complying with the officers’ orders. Plaintiff was handcuffed and

searched only after the officers had holstered their firearms.

Second, plaintiff alleges that Kempf used excessive force when he detained plaintiff in the

police cruiser. 10 Plaintiff alleges that, once inside the police cruiser, Kempf turned the heater to

10 Plaintiff does not raise a separate due process claim in connection with his July 3, 2022 arrest, but

alleges that his excessive force claim in connection with his detainment in the cruiser “could fall

under an 8th amendment or a 14th amendment violation under the due process clause.” Am. Compl.

at ¶ 2. The Court agrees with defendants that neither Amendment applies here. Whitaker v. Sullivan,

2021 WL 4198178, at *2 (N.D. Ohio Sept. 15, 2021) (“[T]he Eighth Amendment applies only to

convicted prisoners[.]”); Colson v. City of Alcoa, Tennessee, 37 F.4th 1182, 1187 (6th Cir. 2022)

(explaining that the Fourteenth Amendment applies only to “a ‘pretrial detainee’—a person who has

received a judicial determination of probable cause but has not yet been adjudicated guilty of a

crime.”). Thus, plaintiff fails to sufficiently allege a due process claim.

8

maximum despite 90-degree temperatures, and left plaintiff sweltering in the heat for 45 minutes.

The BWC recordings show that when Kempf placed plaintiff in the cruiser, he turned the air

conditioning on before leaving to talk to plaintiff’s wife. When Kempf returned to the cruiser,

plaintiff did not mention being uncomfortable in the heat. Kempf opened the door to the cruiser

where plaintiff was seated and they conversed for several minutes about the day’s events. Kempf

asked plaintiff whether he could feel the air conditioner and plaintiff replied, “A little bit . . . it’s not

bad.” The BWC recording shows that Kempf then turned the heat on inadvertently while the cruiser

door remained open for approximately nine minutes. Plaintiff never complained about the heat in

the cruiser.

Confinement in a cruiser in hot temperatures for a prolonged period may amount to

excessive force. See Burchett v. Kiefer, 310 F.3d 937, 945 (6th Cir. 2002) (finding excessive force

where the defendant was detained in a cruiser with the windows up in 90-degree weather for 3

hours). However, federal courts have held that there is no excessive force where the confinement

lasts thirty minutes or less. See N.H. v. Soisson, 2023 WL 4764018, at *12 (N.D. Ohio July 26,

2023) (collecting cases and finding no excessive force where detainment lasted for less than an

hour). Plaintiff’s detainment in a cruiser with the door open for nine minutes with the heat on does

not amount to excessive force.

Accordingly, judgment on the pleadings is warranted on this excessive force claim.

9

(ii) Allegation that Officer Marich committed malicious prosecution on July 5,

202211

Plaintiff alleges that Officer Marich committed malicious prosecution when he testified at a

protective order hearing on July 7, 2022. Among other things, “a Fourth Amendment claim under §

1983 for malicious prosecution requires the plaintiff to show a favorable termination of the

underlying criminal case against him.” Thompson v. Clark, 596 U.S. 36, 44 (2022). Moreover, a

malicious prosecution claim will fail where probable cause exists for the prosecution. See Artuso v.

Felt, 2024 WL 495763, at *4 (6th Cir. Feb. 8, 2024) (dismissing malicious prosecution claim due to

probable cause).

The Massillon Municipal Court Judge granted the protective order against plaintiff in

connection with his July 3, 2022 arrest. As explained above, the court dismissed the related charges

against plaintiff only after he completed the domestic violence program, explicitly noting that the

dismissal was not due to a lack of probable cause to arrest. Because probable cause existed and the

underlying case was not resolved in his favor, judgment on the pleadings is warranted on this

malicious prosecution claim.

(iii) Allegations arising from the July 12, 2022 arrest

Plaintiff alleges that on July 12, 2022, in connection with Plaintiff’s arrest for violating a

protective order, Officers Betz and Escola committed unlawful arrest, false imprisonment, and

malicious prosecution, and violated his right to free speech.

11 Plaintiff alleges Marich committed malicious prosecution on July 5, 2022, but focuses solely on

Marich’s testimony during the July 7, 2022 protective order hearing. The Court will assume Plaintiff’s

malicious prosecution claim is based on the July 7th hearing.

10

The officers arrested plaintiff pursuant to a warrant that has not been found invalid and, like

his July 3, 2022 arrest, the Massillon Municipal Court Judge found probable cause to arrest him for

violating the protective order. On January 23, 2022, after plaintiff completed the domestic violence

program, the court dismissed the charges without prejudice “due to the prosecutor’s decision not to

proceed to trial, but not due to lack of probable cause to arrest.”12 Plaintiff did not appeal the

probable cause finding.

Judgment on the pleadings for plaintiff’s claims stemming from his July 12, 2022 arrest is

warranted. See gen. Watson v. City of Marysville, 518 Fed.Appx. 390 (6th Cir.2013) (supra);

Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669, 675 (6th Cir. 2005) (“In order to prove

malicious prosecution under federal law, a plaintiff must show, at a minimum, that there is no

probable cause to justify an arrest or a prosecution.”); id. at 677 (“An arrest pursuant to a facially

valid warrant is normally a complete defense to a federal constitutional claim for false arrest or

false imprisonment made pursuant to § 1983.”); Ghaster v. City of Rocky River, 913 F. Supp. 2d

443, 467 (N.D. Ohio 2012) (explaining that where a plaintiff alleges he was arrested because of his

speech, he must “plead and prove that the prosecution was not supported by probable cause”).

(iv) Allegation that Officer Yan made a false statement on July 12, 2022

Plaintiff alleges that Officer Yan violated his Fourteenth Amendment right to due process

by making a false statement/report on July 12, 2022. According to the complaint, Yan falsely

reported to a witness that plaintiff had threatened physical harm to police officers in the course of

their duties. Plaintiff alleges that his wife used the falsely reported information to obtain a three-

12 State of Ohio v. Callan, Massillon Municipal Court, Case 2022CRB01568, Order dated Jan. 23,

2023 (Fichter, J.).

11

year protection order, and that the guardian ad litem for plaintiff’s daughter also received a copy of

the report.

The due process clause of the Fourteenth Amendment “generally requires that the

government provide notice and an opportunity to be heard before depriving a person of liberty or

property.” Warren v. City of Athens, Ohio, 411 F.3d 697, 708 (6th Cir. 2005). To establish a claim,

“a plaintiff must show that she was deprived of a protected liberty or property interest, and that this

deprivation occurred without adequate procedural safeguards.” Lipman v. Budish, 974 F.3d 726,

751 (6th Cir. 2020). Reference to an unspecified federal constitutional violation is insufficient to

raise a federal claim. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (“General

allegations of the denial of rights to a ‘fair trial’ and ‘due process’ do not ‘fairly present’ claims that

specific constitutional rights were violated.”); see also Brown v. Matauszak, 415 F. App’x 608, 613

(6th Cir. 2011) (“[A] court cannot create a claim which [a plaintiff] has not spelled out in his

pleading.”).

The Court agrees with defendants that plaintiff’s unspecified reference to a violation of the

Fourteenth Amendment is insufficient to put them on notice of the basis for his claim. Further,

plaintiff’s vague allegations do not satisfy the pleading requirements for his claim. Accordingly,

judgment on the pleadings is warranted as to this claim.

(b) Monell claim against Jackson Township

Plaintiff alleges a Monell claim against Jackson Township predicated on 1) its failure to

adequately train its officers in civil laws; 2) an unlawful policy or custom of arresting suspects

without probable cause on domestic violence calls; and 3) Massillon Prosecutor Malynda Reed’s

unlawful authorization of the July 12, 2022 warrant.

12

“Municipalities are not subject to respondeat superior liability in § 1983 actions[.]” Peroli

v.Huber, 2021 WL 5411215, at *10 (6th Cir. Nov. 19, 2021) (citations omitted). To prevail on a §

1983 Monell claim against a municipality, a plaintiff must show that: (1) he or she suffered a

deprivation of a constitutionally protected interest; and (2) the deprivation was caused by an official

policy, custom, or usage of the municipality. Hunt v. City of Toledo L. Dep’t, 881 F. Supp. 2d 854,

878 (N.D. Ohio 2012) (citing Monell v. New York Dep’t of Social Servs., 436 U.S. 658, 690–91

(1978)).

As discussed above, plaintiff’s allegations do not establish a constitutional violation and,

therefore, he fails to satisfy the first prong of the Monell claim. Accordingly, judgment on the

pleadings is warranted as to plaintiff’s Monell claim.

Conclusion

For the foregoing reasons, defendants’ Motion for Judgment on the Pleadings is granted.

Furthermore, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this

decision could not be taken in good faith.

IT IS SO ORDERED.

/s/ Patricia A. Gaughan

PATRICIA A. GAUGHAN

United States District Judge

Dated: 3/7/24

13