Dipasquale v. Hawkins

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

Charles DiPasquale,

Plaintiff,

Case No. 3:16-cv-219

v. Judge Thomas M. Rose

Detective James Hawkins, et al,

Defendants.

DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT BY

DEFENDANT JAMES HAWKINS, (ECF 155), GRANTING IN PART MOTION FOR

SUMMARY JUDGMENT BY DEFENDANT MARK HERRES, (ECF 154), AND

TERMINATING CASE. SUMMARY JUDGMENT IS ENTERED AGAINST

PLAINTIFF ON ALL FEDERAL CLAIMS. THE COURT DECLINES TO EXERCISE

SUPPLEMENTAL JURISDICTION OVER DEFENDANT/COUNTERCLAIMANT

MARK HERRES’S STATE LAW CLAIMS FOR REPLEVIN, CONVERSION AND

FRAUD, AND DISMISSES THESE CLAIMS WITHOUT PREJUDICE

Pending before the Court are Motion for Summary Judgment by Defendant James

Hawkins, (ECF 155), and Motion for Summary Judgment by Defendant Mark Herres, (ECF 154).

The case stems from a dispute over the ownership of a 1968 Ford Torino GT Pace Car.

Defendants seek summary judgment on all claims against them. Herres additionally seeks

summary judgment on his counterclaims.

I. Background

This case arises out of a theft complaint made by co-defendant, Mark Herres against

Plaintiff Charles DiPasquale. On September 19, 2014, Herres went to the Clay Township Police

Department, and reported to Detective Douglas DeVore the theft of a 1968 Ford Torino GT Pace

Car from a storage building at 8756 Kimmel Road. (ECF 152-2, PageID 2008.) At that time,

Herres produced a title for the vehicle that showed him as the purchaser, but the title had not yet

been transferred into his name. (Id.) Herres was told by Detective DeVore that because he did

not have a title with Herres’ name on it, the Clay Township Police Department would not take a

theft report on the vehicle. (ECF 146 PageID 1576.) Subsequently, Herres provided a copy of the

title to the Clay Township Police Department. (Id; Hawkins Affidavit Exhibit 1.)

After receiving additional information from Herres, on October 2, 2014, DeVore prepared

an Incident Report. In the report, based upon the complaint from Herres, DeVore identified the

incident having occurred sometime between August 2, 2014 and September 19, 2019. (ECF 152,

PageID 1802.) Herres provided a written statement regarding his complaint. (ECF 146, PageID

1638-39.) Thereafter, DeVore made attempts to contact Plaintiff. (ECF 146, PageID#1643;

Hawkins Affid. Exh. 1.) On October 7, 2014, DeVore contacted Plaintiff’s counsel, Attorney

Larry Greger, who provided DeVore with additional information regarding Plaintiff, Herres and

Bradley Proctor. (Id.) DiPasquale alleges that he, Procter and Herres formed a partnership to buy

and resell cars for profit. Thereafter, on October 8, 2014, DeVore checked the VIN number of

the vehicle, which verified the owner as Herres. (Hawkins Affid. Exh. 1)

Although DeVore described Plaintiff as a “business partner” of Herres, DeVore testified at

the criminal trial that Herres did not state DiPasquale was a business partner, that was an

assumption made by DeVore. (ECF 85-1, PageID#710-711.)

Although DeVore did not yet send the case to the Montgomery County Prosecutor’s Office,

he did not close the case. Sometime between October 9, 2014 and October 15, 2014, Officer

DeVore transferred to road patrol with Clay Township Police Department, and the case involving

the Torino was turned over to Clay Township Police Department’s new detective, Defendant

Hawkins. (Hawkins Affid. ¶3.)

After taking over the case file, on October 15, 2014, Hawkins presented a Felony Approval

Sheet and the case file to the Montgomery County Prosecutor’s office for review and determination

as to charges and prosecution. (Hawkins Affid. ¶ 6.) Hawkins provided the Prosecutor’s Office

all documents that had been obtained during the course of the investigation. (Id.)

After receiving the file, Assistant Prosecuting Attorney Michele Henne requested further

information from Hawkins. (Hawkins Affid. ¶7.) Henne asked Hawkins to ask Proctor some

questions. (Hawkins Affid. ¶7, Exh. 3.) On October 23, 2014, Proctor came to the Police

Department and gave a statement to Hawkins regarding the relationship between Plaintiff and

Herres, as well as the Ford Torino at issue. (Hawkins Affid. Exh. 1.) Hawkins sent Proctor’s

statement to the Montgomery County Prosecutor’s office. (Hawkins Affid. ¶ 9.)

Thereafter, Assistant Prosecutor Joseph R. Habbyshaw refused charges as there were still

questions about the titling aspect of the vehicle but noted that the matter be “three paneled” by the

Prosecutor’s Office. (Hawkins Affid. ¶9, Exh. 3.) Subsequently, Investigator Thomas Brill of the

Ohio Bureau of Motor Vehicles contacted Hawkins. (Brill Affid., Exh. 1, p. 2.)

On November 25, 2014, Hawkins met with Investigator Brill, who was investigating Marco

Motor Cars, LLC and Plaintiff. (Hawkins Affid. ¶10.) Hawkins provided Brill with information

regarding the investigation of the Gran Torino and Brill indicated that the BMV could provide

certified documents showing the Gran Torino’s ownership based on the State of Ohio’s database.

(Id.; Brill Affid. Exh. 1.) The following day, Brill delivered certified documents from the BMV

to Hawkins relating to the ownership of the Gran Torino. (Hawkins Affid. ¶11; Brill Affid. Exh.

1.) That additional information was then provided to the Prosecutor’s office. (Id.)

On January 20, 2015, Hawkins received a document entitled “Facts Supporting Decision

and/or Further Information Requested,” from the Prosecutor’s office indicating that the

Prosecutor’s office had decided to pursue charges against Plaintiff. (Hawkins Affid. ¶12.)

In April of 2015, following the presentation of evidence to the grand jury, including the

testimony of Thomas Brill (Brill Affid. ¶6), Plaintiff was indicted on one count of theft of a motor

vehicle and one count of receiving stolen property. (Id.). The case was tried to the court, and

Plaintiff was found not guilty of both charges on August 6, 2015. (ECF 146, PageID 1588.)

On June 7, 2016, DiPasquale filed a complaint naming as defendants Mark Herres, Brad

Proctor and Detective James Hawkins. ECF 1. All three filed motions for judgment on the

pleadings. A magistrate judge recommended that Herres’s Motion for Partial Judgment on the

Pleadings (ECF 18) be granted, that Defendant Brad Procter’s Motion for Judgment on the

Pleadings (ECF 25) be granted, and that he be terminated as a party; and that Hawkins’s Motion

for Judgment on the Pleadings (ECF 22) be granted with regard to DiPasquale’s claim of civil

conspiracy, but denied with regard to DiPasquale’s claim of malicious prosecution. (ECF 42.)

The Court adopted the Report and Recommendation. (ECF 54.)

Hawkins appealed. (ECF 64.) DiPasquale cross-appealed. The United States Court of

Appeals for the Sixth Circuit affirmed the dismissal of the claim regarding grand jury testimony

but reversed the determination that the remaining malicious prosecution claim was sufficiently

pleaded and remanded to this Court for consideration of DiPasquale’s request for leave to amend

his complaint. (ECF 69.)

Leave to amend was granted. (ECF 84.) The Amended Complaint currently before the

Court asserts a claim of Malicious Prosecution against Hawkins and a claim that Hawkins and

Herres engaged in a civil conspiracy against him. (ECF 146.) Herres filed a counterclaim under

Ohio law against DiPasquale for replevin, conversion and fraud. (ECF 148.)

Now, Hawkins and Herres have filed motions for summary judgment. (ECF 154, 155.)

II. Standard of Review

The standard of review applicable to motions for summary judgment is established by

Federal Rule of Civil Procedure 56 and associated case law. Rule 56 provides that summary

judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show 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(c). Alternatively, summary judgment is denied “[i]f 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.” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir. 1992)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). Summary judgment must

be entered “against a party who fails to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The party seeking summary judgment has the initial burden of informing the court of the

basis for its motion, and identifying those portions of the pleadings, depositions, answers to

interrogatories, admissions and affidavits which it believes demonstrate the absence of a genuine

issue of material fact. Id., at 323. The burden then shifts to the nonmoving party who “must set

forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S., at 250

(quoting Fed. R. Civ. P. 56(e)).

Once the burden of production has shifted, the party opposing summary judgment cannot

rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply

show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to

go beyond the pleadings” and present some type of evidentiary material in support of its position.

Celotex Corp., 477 U.S., at 324.

In determining whether a genuine issue of material fact exists, a court must assume as

true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that

party. Anderson, 477 U.S., at 255. If the parties present conflicting evidence, a court may not

decide which evidence to believe by determining which parties' affiants are more credible. 10A

Wright & Miller, Federal Practice and Procedure, § 2726. Rather, credibility determinations

must be left to the fact-finder. Id.

The instant case involves questions of state law. In reviewing an Ohio claim, this Court

must apply the law of Ohio, as interpreted by the Supreme Court of Ohio. Northland Ins. Co. v.

Guardsman Prods. Inc., 141 F.3d 612, 617 (6th Cir. 1998). Specifically, this Court must apply

the substantive law of Ohio “‘in accordance with the then-controlling decision of the highest

court of the State.’” Imperial Hotels Corp. v. Dore, 257 F.3d 615, 620 (6th Cir. 2001) (quoting

Pedigo v. UNUM Life Ins. Co., 145 F.3d 804, 808 (6th Cir. 1998). Also, to the extent that the

highest court in Ohio has not addressed the issue presented, this Court must anticipate how

Ohio's highest court would rule. Id. (quoting Bailey Farms, Inc. v. NOR-AM Chem. Co., 27 F.3d

188, 191 (6th Cir. 1994).

Finally, in ruling on a motion for summary judgment, “[a] district court is not ... obligated

to wade through and search the entire record for some specific facts that might support the

nonmoving party's claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).

Thus, in determining whether a genuine issue of material fact exists on a particular issue, the

court is entitled to rely upon the Rule 56 evidence specifically called to its attention by the

parties.

III. Analysis

A. Claim of Malicious Prosecution

Plaintiff asserts Hawkins and Herres violated his Fourth Amendment right against

malicious prosecution by means of wrongful investigation and prosecution.

The Sixth Circuit

recognizes “a separate constitutionally cognizable claim of

malicious prosecution under the Fourth Amendment” based on a

defendant officer’s “wrongful investigation, prosecution,

conviction, and incarceration” of a plaintiff. Barnes v. Wright, 449

F.3d 709, 715–16 (6th Cir. 2006). To succeed on such a claim, a

plaintiff must establish that (1) a criminal prosecution was initiated

against the plaintiff and that the defendant “made, influenced, or

participated in the prosecution decision”; (2) “there was no probable

cause to support the charges”; (3) as a result of the legal proceedings,

the plaintiff suffered a deprivation of liberty “apart from the initial

seizure”;1 and (4) the criminal proceedings ended in the plaintiff’s

favor. Miller v. Maddox, 866 F.3d 386, 389 (6th Cir. 2017) (quoting

Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010)).2

DiPasquale v. Hawkins, 748 F. App'x 688, 693 (6th Cir. 2018).

Hawkins asserts Defendant lacks evidence in the record to establish three of the four

1 “Traditionally, [malicious prosecution] claims entail defendants who are detained prior to trial.” Fisher v. Dodson,

451 F. App'x 500, 502 (6th Cir.2011). See also Kinlin v. Kline, No. 1:12 CV 581, 2012 WL 3780461, at *6 (N.D.

Ohio Aug.31, 2012) (“A malicious prosecution claim under § 1983 is actually a Fourth Amendment claim to be free

from pretrial detention without probable cause.”) (internal quotation omitted). Billock v. Kuivila, No. 4:11-CV-

02394, 2013 WL 591988, at *5 (N.D. Ohio Feb. 14, 2013).

2 But see, Jones v. Clark Cty., Kentucky, No. 19-5143, 2020 WL 2520267, at *21 (6th Cir. May 18, 2020)(Murphy,

J., concurring) (“After Manuel [v. City of Joliet, Ill., 137 S. Ct. 911, 197 L. Ed. 2d 312 (2017)], ‘Fourth Amendment

malicious prosecution’ is the wrong characterization. There is only a Fourth Amendment claim—the absence of

probable cause that would justify the detention.” Manuel v. City of Joliet, 903 F.3d 667, 670 (7th Cir. 2018)

(Easterbrook, J.). And while “[t]here is no such thing as a constitutional right not to be prosecuted without probable

cause,” “there is a constitutional right not to be held in custody without probable cause.” Id. (citation omitted); see

also Camm v. Faith, 937 F.3d 1096, 1105 (7th Cir. 2019); cf. Pagán-González v. Moreno, 919 F.3d 582, 608–09 (1st

Cir. 2019) (Barron, J., concurring). Yet I would leave Manuel's possible effect for another day.”)

elements of a claim for malicious prosecution. Hawkins asserts there is no evidence that he made,

influenced, or participated in the decision by the Montgomery County Prosecutors to charge

Plaintiff; there is no evidence that Hawkins lacked probable cause for the criminal prosecution;

and there is no evidence Plaintiff suffered a deprivation of his liberty necessary for a malicious

prosecution claim.

The Court turns first to the second element, probable cause. Plaintiff would have the

Court analyze multiple inaccuracies in documents submitted to the grand jury, and conclude that,

without them, probable cause was lacking. Before the Court will do this, however, Plaintiff must

overcome the presumption that the grand jury return of a true bill creates.

Normally, “an indictment, fair upon its face, by a properly constituted grand jury,

conclusively determines the existence of probable cause.” Barnes, 449 F.3d at 716; see King, 852

F.3d at 587. However, King, recognized an exception to this general principle, reasoning that

where (1) a law-enforcement officer, in the course of setting a

prosecution in motion, either knowingly or recklessly makes false

statements (such as in affidavits or investigative reports) or falsifies

or fabricates evidence; (2) the false statements and evidence,

together with any concomitant misleading omissions, are material to

the ultimate prosecution of the plaintiff; and (3) the false statements,

evidence, and omissions do not consist solely of grand-jury

testimony or preparation for that testimony (where preparation has

a meaning broad enough to encompass conspiring to commit perjury

before the grand jury), the presumption that the grand-jury

indictment is evidence of probable cause is rebuttable and not

conclusive.

DiPasquale v. Hawkins, 748 F. App'x 688, 693 (6th Cir. 2018)(citing King, 852 F.3d at 587–88;

comparing Manuel v. City of Joliet, Ill., ––– U.S. ––––, 137 S.Ct. 911, 920 n.8 (2017) (rejecting

the notion that a grand jury indictment “expunge[s]” a Fourth amendment claim for unlawful

pretrial detention when “the proceeding is tainted ... by fabricated evidence”)). This exception

similarly applies when an officer has “misled the prosecutor, as well as the grand jury, through his

deficient and reckless investigation and the critical omission of material evidence.” Id. (quoting

Jones v. Clark County, 690 F. App'x 334, 336 (6th Cir. 2017); see also Sanders v. Jones, 728 Fed.

App’x 563, 565–66 (6th Cir. 2018)).

DiPasquale must have evidence “that Hawkins knew or should have known that the

statements of Proctor and Herres were false [before a court can consider whether] knowingly or

recklessly relying on false statements is sufficiently akin to ‘knowingly or recklessly mak[ing]

false statements’ to overcome the probable-cause presumption…” DiPasquale, 748 F. App'x at

693 (quoting King, 852 F.3d at 587–88).3

Plaintiff will survive Hawkins’ motion if he can point to evidence that could lead a

reasonable juror to conclude that Hawkins knew or should have known that the statements of

Proctor and Herres were false, that Hawkins presented them to the grand jury and that they

influenced the decision to prosecute. See DiPasquale v. Hawkins, 748 F. App'x 688, 695 (6th Cir.

2018).

Plaintiff would have the Court conclude that Hawkins knew or should have known that the

men’s accounts were false, inter alia, because DiPasquale provided DeVore with the partnership

agreement, lease for the storage facility, checks “and other evidence demonstrating the civil nature

of this matter,” and that Hawkins had these in his possession when he “presented the case to a

Montgomery County Grand Jury”; Id. at 4–5; because the partnership agreement, attached to the

3 “[I]t is unclear whether relying on an arguably false witness statement would even rise to the level of making a

false statement for the purpose of the presumption created by King. See DiPasquale v. Hawkins, 748 F. App'x 688,

694 (6th Cir. 2018) (questioning but not deciding whether “knowingly or recklessly relying on false statements is

sufficiently akin to ‘knowingly or recklessly mak[ing] false statements’ to overcome the probable-cause

presumption”).” Lester v. Roberts, No. 3:16-CV-119-CHB, 2019 WL 1421755, at *3 (W.D. Ky. Mar. 29, 2019)

complaint, outlined the men’s business venture and specified that Herres was expected to acquire

cars “on behalf of Marco Motor Cars LLC and only Marco Motor Cars LLC”; Id. 12; because

Proctor’s written statement to the Clay Township police after Hawkins had taken over the

investigation acknowledges there was a business relationship among Proctor, Herres, and

DiPasquale to buy and fix up cars and that the Torino was purchased with funds withdrawn from

the Marco Motor Cars business account.

However, Plaintiff points to no evidence that Hawkins made misrepresentations or

presented materially false statements that he knew to be false. “[T]he finding of an indictment,

fair upon its face, by a properly constituted grand jury, conclusively determines the existence of

probable cause” for a prosecution. Sanders v. Jones, 845 F.3d 721, 728 (6th Cir. 2017) (citing

Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002)). Because Plaintiff was indicted by a

Montgomery County grand jury, the general rule would bar his claims absent application of a

known exception to such rule. Boyce v. City Hall for Springfield, Ohio, No. 3:19- CV-181, 2019

WL 4305794, at *3 (S.D. Ohio Sept. 11, 2019). Plaintiff cannot point to evidence in the record

that would rebut the presumption of probable cause.

While the Incident Report was initially drafted and prepared by Officer DeVore, (ECF 152,

PageID#1801.), Hawkins took additional Investigator Notes concerning the meeting with Brad

Proctor when he took over the investigation. (Hawkins Affid. ¶5.) Plaintiff takes issue with some

details in those notes—such as a statement that the car was purchased for $8,000 rather than $7,000

plus the applicable tax, but whether the car was worth $7,000 or $8,000 is not material to the issue

of whether the offense was a felony or any other element of theft. There is no evidence that was

anything more than a typographical error or negligence. Plaintiff cannot prove that it was

knowing or reckless material misinformation.

Similarly, when the title was formally transferred into Herres’s name is not material to the

issue of who had possession or control of the vehicle when it was taken. Where a plaintiff does

not show any instances that the defendant provided knowingly or recklessly made false statements

or falsified or fabricated evidence, the presumption remains conclusive and not rebutted. Lester v.

Roberts, No. 3:16-CV-119-CHB, 2019 WL 1421755, at *2 (W.D. Ky. Mar. 29, 2019).

In Lester, Plaintiff argued that the evidence and testimony on which a detective relied to

secure an indictment were so riddled with inconsistencies, he was reckless in relying on them. The

court ruled that even where an “inconsistency…should have led [a detective] to be more skeptical

of [a witness’s] testimony, a questionable element in part of a witness' testimony does not amount

to the type of fabrications outlined in King particularly when there is no evidence that [the

detective] actively concealed this fact.” Lester at *3 (W.D. Ky. Mar. 29, 2019).

While Plaintiff has shown some reasons that Hawkins might have questioned the witness'

reliability, he has not shown any statements that Hawkins relied on despite knowing that they were

false. Compare Lester at *3; Sanders v. Jones, 728 F. App'x 563, 566 (6th Cir. 2018) (where

Defendant acknowledged that on closer inspection of the surveillance footage the Plaintiff was not

the one who had participated in the charged drug deal). Further, none of the discrepancies are so

egregious as to undoubtedly call the factual basis for the testimony into question for any reasonable

police officer. Lester at *3 (citing Jones v. Clark County, KY, 690 F. App'x 334, 336 (6th Cir.

2017). Finally, it is unclear whether relying on an arguably false witness statement would even

rise to the level of making a false statement for the purpose of the presumption created by King.

See DiPasquale v. Hawkins, 748 F. App'x 688, 694 (6th Cir. 2018) (questioning but not deciding

whether “knowingly or recklessly relying on false statements is sufficiently akin to ‘knowingly or

recklessly mak[ing] false statements’ to overcome the probable cause presumption”).

The evidence Plaintiff can present does not allow a reasonable finder of fact to conclude

Hawkins was legally reckless. Plaintiff’s argument that a genuine issue of material fact exists as

to whether this matter was civil is entirely off the mark. (ECF 161, PageID #2253-54, 2560,

2569, 2573-74.) According to Plaintiff, “Law enforcement has no jurisdiction to act in a civil

matter (ECF 152, PageID 1747) ("A business dispute between partners is an example of a civil

matter" based upon his training and experience). Thus, to have acted at all in the ‘entirely civil

matter,’ was at least reckless on the part of Detective Hawkins, an admitted state actor. (ECF 147

PageID 1699).” (ECF 161, PageID 2553, Response at 2.)

"Some claims are so obvious or obscure that they have not been made before. Other

claims are made up or false, making them more difficult to support using references to the existing

literature.” Orin S. Kerr, A Theory of Law, 16 GREEN BAG 2D 111. The notion that police officers

may not investigate civil matters is not obvious to the Court. That an individual may have endured

workplace sexual harassment does not foreclose sexual assault. Criminal charges of theft do not

bar a civil claim of conversion. Criminal fraud charges do not rule out a breach of contract claim.

This pillar of Plaintiff’s case is neither obvious, and, if obscure, certainly within his counsel’s

ability to elucidate over the course of his 48-page response.

The focus of this case does not consist of a criminal or civil distinction, nor of whether a

“jury could find that DiPasquale was an owner of the vehicle and had joint possession and control,

by the lease agreement for the storage facility and thus not a ‘thief,’” (ECF 161, Response at 39,)

but rather the existence of probable cause. In order to prove malicious prosecution under federal

law, a plaintiff must show that there is no probable cause to justify an arrest or a prosecution.

Thacker v. City of Columbus, 328 F.3d 244, 259 (6th Cir. 2003).

Plaintiff fails to show any materially false statements made by Hawkins or evidence fabricated by

Hawkins and therefore cannot rebut the presumption of probable cause created by the grand jury

indictment. Barnes, 449 F.3d at 715-16.

Clearer still is the resolution of the third element, deprivation of liberty. A malicious

prosecution plaintiff must show that, “‘as a consequence of a legal proceeding,’ the plaintiff

suffered a ‘deprivation of liberty,’ as understood in our Fourth Amendment jurisprudence, apart

from the initial seizure.” Billock v. Kuivila, No. 4:11-cv-02394, 2013 WL 591988, *5 (N.D. Ohio

2013) (citing Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010)). Malicious prosecution

claims usually involve defendants who have been detained prior to trial. Id. “Service with a

summons to appear at trial or some other court proceeding does not rise to the level of a

constitutional deprivation.” Id. at *6, citing Briner v. City of Ontario, No. 1:07-CV-129, 2011 WL

866464, *4 (N.D. Ohio 2011).

Plaintiff points to Miller as precedent establishing that he has suffered a deprivation of

liberty beyond the initial seizure, but Miller offers him no support:

The record reflects that after Miller participated in the video

conference with the night court commissioner who found probable

cause, she remained detained for approximately forty-five minutes.

Thereafter, she paid a $355 fee to be released and was required to

participate in a pretrial release program, which mandated that she

show up on time for all court appearances and call the pretrial case

manager every week until the case was resolved. Participation in

this program was an alternative to Miller posting a $3,000 bond.

Miller’s participation in the pretrial release program constitutes a

deprivation of liberty separate from the initial seizure. In Noonan

v. County of Oakland, we concluded that the plaintiff was not

deprived of his liberty apart from his initial seizure because the

plaintiff was “never arrested or incarcerated, required to post bail or

bond, or subjected to any travel restrictions.” No. 15-2192, 683 Fed.

App’x 455, 462–63, 2017 WL 1102912, at *7–8 (6th Cir. Mar. 24,

2017) (unpublished). In that case, we concluded that the

aggravation and costs associated with hiring an attorney and

reputational harms were not “a deprivation of liberty as understood

in our Fourth Amendment jurisprudence.” Id. at 463, 2017 WL

1102912 at *8. However, in Johnson v. Moseley, we “assume[d]

that” conditions of pretrial release “represent a sufficient deprivation

of ... liberty to satisfy the third element” of Sykes. 790 F.3d 649, 654

(6th Cir. 2015). Also, in Johnson v. City of Cincinnati, we

indicated that imposing restrictions designed to compel court

appearance, “such as obligations to post bond, attend court hearings,

and contact pretrial services” could constitute a seizure. 310 F.3d

484, 493 (6th Cir. 2002) (collecting cases).

Miller v. Maddox, 866 F.3d 386, 393 (6th Cir. 2017)

Here, Plaintiff was not arrested, nor was he incarcerated while awaiting trial. The mere

fact that Plaintiff went on trial for the indicted charges does not constitute a deprivation of liberty.

An initial arrest and related detention are legally insufficient to satisfy the deprivation of liberty

element of a malicious prosecution claim. Howell v. Ohio State Highway Patrol Subdivision, No.

1:18-CV-510, 2019 WL 6465508, at *7 (S.D. Ohio Dec. 2, 2019) (citing Billock v. Kuivila, 2013

WL 591988, at *6, 2013 U.S. Dist. LEXIS 20388 at **17-18 (N.D. Ohio Feb. 14, 2013) (collecting

cases); and Kinlin v. Kline, 2012 WL 3780461, at *6 (N.D. Ohio Aug. 30, 2012)).

Plaintiff alleges that he was deprived of his liberty because he “was released on bond, the

conditions of which included travel restrictions, fingerprinting, mug shots and pretrial supervision.

DiPasquale asserts he was also required to report his whereabouts to court personnel, and submit

to urine analysis, fingerprinting and photographing by representatives of the Montgomery County,

Ohio Sheriff’s Office” (ECF 146, PageID 1587), he points to no evidence to substantiate this claim.

Plaintiff was released on his own recognizance and the only apparent condition of bail imposed

was attendance at the pretrial conference. (ECF 155-3, PageID 2462-63 Hawkins Motion, Exh. C

at 10-12.) He was granted permission to travel by the Montgomery County Court of Common

Pleas. (ECF 155-3, 2462.) Plaintiff points to no evidence that he was deprived of his liberty.

Because there is no genuine issue of material fact that Plaintiff cannot establish the elements of his

claim for malicious prosecution against Defendant Hawkins, Defendant Hawkins is entitled to

summary judgment on this claim.

B. Civil Conspiracy

Hawkins and Herres both move for summary judgment on claim that they engaged in a

civil conspiracy to deprive him of his constitutional rights. To make a claim for conspiracy to

deprive someone of their due process rights, a plaintiff must show “that (1) a single plan existed,

(2) the conspirators shared a conspiratorial objective to deprive the plaintiffs of their constitutional

rights, and (3) an overt act was committed in furtherance of the conspiracy that caused the injury.”

Jackson v. City of Cleveland, 925 F.3d 793, 817 (6th Cir. 2019) citing Robertson v. Lucas, 753

F.3d 606, 622 (6th Cir. 2014) (internal quotation marks omitted) (quoting Revis v. Meldrum, 489

F.3d 273, 290 (6th Cir. 2007)).

Plaintiff’s civil conspiracy claim founders on the first element: the existence of an agreed

plan. Plaintiff directs the Court’s attention to pages of the record upon which the Court finds no

evidence of the existence of any agreement. (ECF 161, PageID 2591(“Hawkins agreed to seek

the filing of theft charges (ECF 152 PageID 1774; 1776); (ECF155-1 PageID# 2429-2434) when

he did not have probable cause.”)

To the contrary, Hawkins testified that he did not know Mark Herres outside of this

incident. (Hawkins Dep. p. 33.) Hawkins never spoke with Herres about contacting Plaintiff for

the return of the vehicle or settling the matter on good terms. (Hawkins Dep. p. 39-43; 104.)

Herres testified that Hawkins did not inform him he was providing information to the Prosecutor

or the status of the case. (Herres Dep. p. 91.) Mere “[c]ommunications between a private and

state actor, without more facts supporting a concerted effort or plan between the parties, are

insufficient to make a private party a state actor.”). Libertarian Party of Ohio v. Husted, 188 F.

Supp. 3d 665, 672 (S.D. Ohio 2016) (citing Fisk v. Letterman, 401 F. Supp. 2d 362, 377

(E.D.N.Y. 2010).

Neither does Plaintiff point to any conspiratorial objective to deprive him of his

constitutional rights. Plaintiff’s allegations are based solely on speculation and conjecture.

Speculation and conjecture are insufficient to establish the existence of an agreement. Regets v.

City of Plymouth, 568 F. App'x 380, 391 (6th Cir. 2014) (citing Moore v. City of Paducah, 890

F.2d 831, 834 (6th Cir.1989)). Plaintiff simply has not established an agreement to engage in

unlawful action.

He cannot simply rely on Hawkin’s actions to establish conspiratorial conduct, as

Hawkin’s actions are just as consistent with independent conduct as they are with a conspiracy.

See Hensley v. Gassman, 693 F.3d 681, 695 (6th Cir. 2012) (citing Re/Max Int'l, Inc. v. Realty

One, Inc., 173 F.3d 995, 1009 (6th Cir. 1999) (“Certainly, much of the plaintiffs' evidence is as

consistent with independent conduct as with a conspiracy.”) The “web of inference[s] is too

weak” on the alleged facts to permit a finding, “absent sheer speculation,” that Hawkins shared

an unlawful objective with Herres. See Bazzi v. City of Dearborn, 658 F.3d 598, 603 (6th Cir.

2011) (citing United States v. Sliwo, 620 F.3d 630, 637 (6th Cir.2010) (internal quotation marks

omitted)). Therefore, Defendant Hawkins is entitled to summary judgment as a matter of law.

C. Qualified Immunity

Because Hawkins has prevailed on the merits, the question of whether he enjoys qualified

immunity is moot.

IV. Conclusion

Because Plaintiff Charles DiPasquale has no evidence that he was detained beyond an

initial arrest and because Plaintiff cannot overcome the presumption of probable cause created by

the grand jury’s return of an indictment, Defendant James Hawkins is entitled to summary

judgment on Plaintiff’s malicious prosecution claim. Because Plaintiff has no evidence of an

agreement between Defendants James Hawkins and Mark Herres, Defendants are entitled to

summary judgment on Plaintiff’s civil conspiracy claim. Wherefore, Motion for Summary

Judgment by Defendant James Hawkins, (ECF 155), is GRANTED. Motion for Summary

Judgment by Defendant Mark Herres, (ECF 154), is GRANTED IN PART. Defendant Mark

Herres is awarded summary judgment on Plaintiff’s claims against him. As regards Herres’s

counterclaims against DiPasquale for replevin, conversion and fraud, these are claims under Ohio

law.

Although the surviving state law claims were properly asserted in this Court by means of

the supplemental jurisdiction provision of 28 U.S.C. § 1367, a court may decline such

supplemental jurisdiction where the court has dismissed all claims over which it has original

jurisdiction. 28 U.S.C. § 1367(c)(3). The Court declines to exercise its supplemental jurisdiction

over this matter and DISMISSES the Herres’s counterclaims for replevin, conversion and fraud

without prejudice. The captioned cause is hereby TERMINATED upon the docket records of

the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

DONE and ORDERED this Wednesday, June 3, 2020.

s/Thomas M. Rose

________________________________

THOMAS M. ROSE

UNITED STATES DISTRICT JUDGE