Smigelski v. Cluley

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ANDREW SMIGELSKI,

Plaintiff,

Case No. 2:20-CV-4812

JUDGE SARAH D. MORRISON

v.

Magistrate Judge Kimberly A. Jolson

GREGG CLULEY, et al.,

Defendants.

REPORT AND RECOMMENDATION

AND ORDER

Plaintiff Andrew Smigelski, who is proceeding pro se, brings this action against: (1) Logan

Police Detective Gregg Cluley; (2) Former Logan Police Officer Josh Mowery; (3) Logan Police

Captain Ryan Gabriel; (4) Logan Police Detective Ben Skinner; (5) Logan Patrol Supervisor

Michael Walton; (6) Logan Police Chief Jerry Mellinger; (7) Logan Police Dispatcher Lacy

Levering; (8) Logan City Law Director Abigail Saving; (9) Hocking County Judge Jonah Saving;

(10) Logan Mayor Greg Fraunfelter; (11) City of Logan, Ohio; (12) Hocking County Sherriff’s

Deputy Caleb Moritz; (13) Hocking County Sherriff Lanny North; (14) Hocking Sherriff’s

Department; (15) Hocking County; (16) Southeast Ohio Regional Jail (as an entity as well as the

guards individually); (17) Unknown agents for the Athens FBI; (18) Unknown agents for the

Cincinnati FBI; (19) The FBI; and (20) Ken and Jessica James. This matter is before the

Undersigned for consideration of Plaintiff’s Motion for Leave to Proceed in forma pauperis

(Doc. 1) and the initial screen of Plaintiff’s Complaint under 28 U.S.C. § 1915(e)(2).

Plaintiff’s request to proceed in forma pauperis is GRANTED. All judicial officers who

render services in this action shall do so as if the costs had been prepaid. 28 U.S.C § 1915(a).

Furthermore, having performed an initial screen, it is RECOMMENDED that Plaintiff be

permitted to proceed with his claims against: (1) Defendants Unnamed Southeastern Ohio

Regional Jail (“SEORJ”) Guards for their alleged unconstitutional collection of his DNA;

(2) Defendant Cluley for his alleged misrepresentations in obtaining a search warrant; and

(3) Defendants Mowery, Skinner, and Gabriel for their alleged excessive force against Plaintiff.

Because Plaintiff’s Complaint does not specify a prayer for relief, Plaintiff is ORDERED to

amend his Complaint to include the specific relief requested from each Defendant within twenty-

one (21) days of the date of this Report and Recommendation. It is further RECOMMENDED

that Plaintiff’s remaining claims be DISMISSED.

I. BACKGROUND

The Ohio Court of Appeals summarized the facts and procedural history of Plaintiff’s

criminal case:

[Plaintiff] became involved in a dispute with his neighbors, the James family, that

resulted in him being arrested and charged with inducing panic, menacing, resisting

arrest, and obstructing official business. The menacing charge arose from his

dispute with the James family. The additional charges arose when police arrested

[Plaintiff] at his house on the menacing charge.

Shortly after his arrest, the State dismissed the inducing panic charge and amended

the menacing charge to aggravated menacing. The State also served a warrant on

[Plaintiff] to search his home. [Plaintiff] filed a motion to suppress evidence

alleging that the search warrant was invalid on its face, which the State conceded

at the suppression hearing. However, even though the court granted [Plaintiff’s]

motion to suppress, it does not appear that the ruling had any practical effect

regarding [Plaintiff’s] case because none of the charges pending at the time

(aggravated menacing, obstructing official business, and resisting arrest) were

dismissed after the motion was granted. [Plaintiff] waived his right to a jury trial

and a bench trial ensued.

Ohio v. Smigelski, No. 19CA6, 2019 WL 5797340, at *1 (Oh. Ct. App. Nov. 1, 2019).

At the trial, the prosecution moved to dismiss the charges for resisting arrest and

obstructing official business. Id. at *2. Plaintiff was convicted of menacing, a fourth-degree

misdemeanor, and sentenced to a fine and two years of probation. Id. at **1, 3. Plaintiff

unsuccessfully appealed, alleging ineffective assistance of trial counsel, prosecutorial misconduct,

and, more broadly, that his conviction was against the manifest weight of the evidence. Id. at

**4– 6. It does not appear that Plaintiff appealed to the Ohio Supreme Court.

II. PLAINTIFF’S COMPLAINT

Generally speaking, Plaintiff alleges that state and local officials violated his First, Second,

Fourth, Sixth, Eighth, and Fourteenth Amendment rights, and federal officials violated his First

and Fourth Amendment rights. (See generally Doc. 1-1).

Plaintiff’s Complaint elaborates on the events leading to his arrest. According to Plaintiff,

he “got into a brief oral disagreement with his neighbors,” Ken and Jessica James, regarding a

noise complaint he made against them. (Id. at ¶ 4). His neighbors then went to their friend, a

Logan, Ohio police officer, Defendant Josh Mowery about the incident. (Id. at ¶¶ 7–8). Defendant

Mowery is allegedly known for his misconduct in the police department. (Id. at ¶¶ 21–23).

Defendant Mowery allegedly asked one of the department’s dispatchers, Defendant Lacy

Levering, “to call the jail to make sure there was a bed available.” (Id. at ¶ 48).

On September 12, 2018, Defendant Mowery allegedly went to Plaintiff’s house and peered

into his window with his gun drawn and then called for the Special Reaction Team, which arrived

shortly thereafter. (Id. at ¶¶ 51–52). Defendant Caleb Moritz, Sheriff’s Deputy for Hocking

County, instructed Plaintiff to complete a “Voluntary Statement” form. (Id. at ¶ 140). Defendant

Moritz allegedly indicated his intent to enter Plaintiff’s house and recover Plaintiff’s firearm. (Id.

at ¶ 142). Plaintiff, however, did not give him permission to do so. (Id. at ¶ 143).

Plaintiff alleges that Defendant Moritz then told him that he was not under arrest and would

not be attacked. (Id. at ¶ 139). Defendant Mowery, however, allegedly “grabbed [P]laintiff by the

collar, whipped him to his knees, then grabbed the back of Plaintiff’s neck and slammed Plaintiff’s

head into the concrete.” (Id. at ¶ 57). According to Plaintiff, Defendant Mowery then handcuffed

Plaintiff tightly enough to cause bruising. (Id. at ¶ 59). Defendant Ben Skinner, a detective for

the Logan Police Department who was also at the scene, allegedly “piled onto” Plaintiff and tasered

him. (Id. at ¶¶ 154–55). Defendant Ryan Gabriel, Captain of the Logan Police Department, along

with several other officers, allegedly brutally restrained Plaintiff. (Id. at ¶ 164).

Defendant Mowery then drove Plaintiff to SEORJ. Plaintiff alleges that, although

Defendant Mowery did not read him his Miranda rights, he nevertheless requested an attorney and

invoked his right to remain silent. (Id. at ¶¶ 60–62). Plaintiff was strip searched upon his arrival

at SEORJ. (Id. at ¶ 170). SEORJ guards also collected his DNA. (Id. at ¶ 171).

Defendant Gregg Cluley, one of the detectives present at Plaintiff’s arrest, later searched

Plaintiff’s house. (Id. at ¶ 87). To obtain the search warrant, Defendant Cluley allegedly made a

number of false accusations. For example, Plaintiff says that, although body cameras show

otherwise, Defendant Cluley falsely accused him of handling a gun when Defendant Mowery first

arrived at Plaintiff’s house. (Id. at ¶ 74). Defendant Cluley also allegedly falsely claimed that the

police seized a knife from Plaintiff during his arrest. (Id. at ¶ 79). And, says Plaintiff, Defendant

Cluley repeated these false statements to the Logan Daily News. (Id. at ¶ 102).

The warrant authorized the search of Plaintiff’s residence for “[f]irearms, ammunition,

firearm accessories, cell phones, computers” and “writing pertaining his thought process and any

contraband.” (Id. at ¶ 87). It also permitted a forensic examination of Plaintiff’s cell phone. (Id.

at ¶ 98). Plaintiff alleges that Defendant Cluley viewed and copied Plaintiff’s internet, phone, and

location history, as well as naked photos, text messages, and applications data. (Id. at ¶ 100). The

government did not bring charges pursuant to the search results, and at a December 18, 2018,

hearing, Logan City Prosecutor, Defendant Abigail Saving, agreed “to the dismissal of the search

warrant.” (Id. at ¶ 118). Still, Plaintiff alleges she repeatedly referred to evidence at trial that had

not been produced and made false statements at both Plaintiff’s arraignment and trial. (Id.

at ¶¶ 105, 125, 129). Plaintiff notes that Defendant Abigail Saving is married to Defendant Judge

Jonah Saving, who granted Defendant Abigail Saving’s request for bail and issued the search

warrant before recusing himself from the case. (Id. at ¶¶ 107–108, 120, 167).

Plaintiff brought this action on September 14, 2020, for numerous alleged constitutional

violations stemming from his September 12, 2018, arrest and subsequent proceedings. (See

generally Doc. 1-1).

III. STANDARD

Because Plaintiff is proceeding in forma pauperis, the Court must dismiss the Complaint,

or any portion of it, that is frivolous, malicious, fails to state a claim upon which relief can be

granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to set forth

“a short and plain statement of the claim showing that the pleader is entitled to relief.” In reviewing

his Complaint, the Court must construe it in favor of Plaintiff, accept all well-pleaded factual

allegations as true, and evaluate whether it contains “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial

plausibility when the plaintiff pleads 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) (citing Twombly, 550 U.S. at 556). On the other hand, a complaint that consists of

“labels and conclusions” or “a formulaic recitation of the elements of a cause of action” is

insufficient. Id. (quoting Twombly, 550 U.S. at 555). Although pro se complaints are to be

construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972), “basic pleading essentials” are

still required, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

IV. DISCUSSION

Of Plaintiff’s numerous claims, only a handful survive. Apart from those, as explained

below, Plaintiff’s Complaint suffers from several fatal flaws, both in form and in substance. The

Undersigned addresses them below.

A. Private Parties

Plaintiff’s claims against his neighbors, Ken and Jessica James, must be dismissed as they

are not cognizable under 42 U.S.C. § 1983. To state a cause of action under Section 1983, a

plaintiff must allege: “(1) a deprivation of a right secured by the Constitution or law of the United

States (2) caused by a person acting under color of state law.” Hunt v. Sycamore Cmty. Sch. Dist.

Bd. of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (citation omitted). Regarding the second element,

“[t]he traditional definition of acting under color of law requires that the defendant in a § 1983

action have exercised power ‘possessed by virtue of state law and made possible only because the

wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988)

(quoting U.S. v. Classic, 313 U.S. 299, 326 (1941)). “Therefore, as a general rule, § 1983 does

not reach the conduct of private parties acting in their individual capacities.” Weser v. Goodson,

965 F.3d 507, 515–16 (6th Cir. 2020) (citing Lindsey v. Detroit Ent., LLC, 484 F.3d 824, 827 (6th

Cir. 2007)). Although there are exceptions to this rule, Plaintiff does not raise any of them. And

because Defendants Ken and Jessica James are private parties, Plaintiff has failed to state a claim

against them.

B. Personal Involvement

Relatedly, to state a claim for relief under Section 1983, Plaintiff must allege that each

defendant had “personal involvement” in the deprivation of his rights. Grinter v. Knight, 532 F.3d

567, 575 (6th Cir. 2008) (citation omitted). Importantly, Section 1983 does not permit respondeat

superior liability. Rather, a supervisor may be held liable only where he “encouraged the specific

incident of misconduct or in some other way directly participated in it.” Combs v. Wilkinson, 315

F. 3d 548, 558 (6th Cir. 2002) (quoting Bellamy v. Bradley, 729 F. 2d 416, 421 (6th Cir. 1984)).

Plaintiff fails to allege personal involvement or supervisory liability as to seven Defendants.

1. Defendant Moritz

To begin, Plaintiff does not provide sufficient factual content or context from which the

Undersigned could infer that Defendant Moritz was personally involved in any alleged

unconstitutional conduct. Plaintiff alleges that Defendant Moritz told Plaintiff he would enter his

house (Doc. 1-1 at ¶ 142) and “encouraged the Logan Police Department to conduct an illegal

search of [his] home” (id. at ¶ 149). But Plaintiff does not allege officers searched his house at

that time. Rather, he alleges his house was later searched pursuant to a faulty warrant. (Id. at

¶ 87). Accordingly, Plaintiff has failed to state a claim against Defendant Moritz.

2. Defendant Mellinger

Next, Plaintiff alleges that Defendant Mellinger, Logan’s Chief of Police, failed to

intervene both when Defendant Mowery arrested him and when Defendant Cluley allegedly made

false statements to obtain a search warrant. Although not entirely clear, it appears Plaintiff seeks

to hold Defendant Mellinger responsible based on his supervisory position. But as noted, a

supervisory official cannot be held liable under Section 1983 unless the plaintiff can demonstrate

that “the supervisor encouraged the specific incident of misconduct or in some other way directly

participated in it.” Combs, 315 F. 3d at 558 (quoting Bellamy, 729 F. 2d at 421). Specifically, a

plaintiff must allege that the supervisory official “at least implicitly authorized, approved, or

knowingly acquiesced in the unconstitutional conduct of the offending officers.” Combs, 315 F.

3d at 558. In other words, “[s]upervisory liability under § 1983 cannot be based on a mere failure

to act but must be based upon active unconstitutional behavior.” Id. (citing Bass v. Robinson, 167

F. 3d 1041, 1048 (6th Cir. 1999)).

Plaintiff’s allegations against Defendant Mellinger fail to satisfy this standard. He does

not allege facts suggesting Defendant Mellinger implicitly authorized, approved, or knowingly

acquiesced in the alleged unconstitutional conduct. Combs, 315 F. 3d at 558. Instead, he alleges

only that Defendant Mellinger failed to intervene. Section 1983, however, does not permit claims

based on a failure to act. Id. Thus, Plaintiff’s claims against Defendant Mellinger cannot survive.

3. Defendants Levering and Unnamed FBI Agents

Plaintiff also fails to allege factual content or context from which the Undersigned could

infer that Defendant Lacy Levering, a dispatcher for the Logan Police Department, was personally

involved in any alleged constitutional violation. Plaintiff alleges only that Defendant Mowery

asked Defendant Levering to call the jail to see if there were beds available, and she complied.

(Doc. 1-1 at ¶ 48). Even construing Plaintiff’s allegations liberally, the Undersigned cannot draw

an inference of unconstitutional conduct on the part of Defendant Levering. Plaintiff’s claims

against her must be dismissed.

The same is true regarding Plaintiff’s claims against the unnamed FBI agents. Plaintiff

alleges that unnamed FBI agents received information from Defendant Cluley and surveilled and

investigated Plaintiff until the search warrant “was dismissed.” (Id. at ¶¶ 189–97). But Plaintiff

does not set forth facts showing, for example, that the agents knew the warrant was based on

purportedly perjured information. Thus, Plaintiff fails to provide sufficient factual content or

context from which the Undersigned could infer the agents were involved in any alleged

unconstitutional conduct. Plaintiff’s claims against the unnamed FBI agents must, therefore, be

dismissed.

4. Defendants North, Sheriff’s Department, Hocking County

Finally, Plaintiff fails to allege specific facts as to Defendants Lanny North, Hocking

County Sheriff’s Department, or Hocking County. To the extent Plaintiff seeks to hold these

Defendants liable under a theory of respondeat superior, as explained, Section 1983 prohibits him

from doing so. See Harris v. Goins, 156 F. Supp. 3d 857, 862 (E.D. Ky. 2015) (citing Street v.

Corr. Corp. of Am., 102 F.3d 810, 818 6th Cir. 1996)). Accordingly, Plaintiff’s claims against

these Defendants must be dismissed.

C. Immunity

Additionally, several Defendants are immune from liability.

1. Judicial Immunity

Taking the factual allegations in the Complaint as true, Plaintiff’s claims against Defendant

Judge Saving are barred by judicial immunity. Judicial immunity shields judges, and other public

officers, “from undue interference with their duties and from potentially disabling threats of

liability.” Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). “Like other forms of official immunity,

judicial immunity is an immunity from suit, not just from ultimate assessment of damages.”

Mireles v. Waco, 502 U.S. 9, 11 (1991). Judicial immunity is overcome only if the actions taken

were not in the judge’s judicial capacity and if the actions taken were in absence of all jurisdiction.

Id. at 11–12.

Plaintiff alleges that Defendant Judge Saving “signed off” on Defendant Cluley’s search

warrant “that was almost entirely perjured;” “failed to question the obviously deficient search

warrant;” and “signed off on a search warrant for a case that he knew, or should have known his

wife would be prosecuting.” (Doc. 1-1 ¶¶ 165–67). But these allegations do not lead to an

inference that Defendant Judge Saving was acting outside of his judicial capacity when he issued

the warrant. See, e.g., Nali v. Grosse Pointe Woods, No. CIV. 04-10235-BC, 2005 WL 1050773,

at *1 (E.D. Mich. Apr. 19, 2005) (holding that municipal judge was immune from plaintiff’s

allegations that she conspired to and violated his civil rights when she signed a search warrant

authorizing the search of his residence).

The same is true regarding Plaintiff’s allegation that Defendant Judge Saving “knew or

should have known” that his wife was involved in the case. Again, there are no facts in the

Complaint from which the Court could infer that Defendant Judge Saving acted in the absence of

all jurisdiction. See, e.g., King v. McCree, 573 F. App’x 430, 441 (6th Cir. 2014) (“To the extent

plaintiff may be alleging bias on the part of defendants that infected the fairness of their rulings

and proceedings, plaintiff’s allegations of bias or misconduct do not render the actions of

defendants non-judicial.”).

In sum, even construing the complaint in the light most favorable to Plaintiff, his claims

against Defendant Judge Saving are barred by judicial immunity and must be dismissed.

2. Prosecutorial Immunity

Relatedly, Plaintiff’s claims against Defendant Abigail Saving are barred by prosecutorial

immunity. Prosecutors are “absolutely immune from liability” for their actions that are “intimately

associated with the judicial phase of the criminal process.” Van de Kamp v. Goldstein, 555 U.S.

335, 341 (2009) (citation and quotation marks omitted). “[A]bsolute immunity,” however, “may

not apply when a prosecutor is not acting as ‘an officer of the court,’ but is instead engaged in

other tasks, say, investigative or administrative tasks.” Id. at 342 (quoting Imbler v. Pachtman,

424 U.S. 409, 433 n.33 (1976)). “The analytical key to prosecutorial immunity is whether the

actions in question are those of an advocate.” Red Zone 12 LLC v. City of Columbus, 758 F. App’x

508, 514 (6th Cir. 2019) (alteration, quotation marks, and citation omitted). “Whether the

prosecutor has an improper motive, acts in bad faith, or even acts in an unquestionably illegal

manner is irrelevant.” Id. (citations omitted).

Plaintiff’s allegations against Defendant Abigail Saving, including for example, that she

lied at his arraignment and refused to comply with discovery, (see generally Doc. 1-1 at ¶¶ 103–

35), fall within the scope of prosecutorial immunity. See Van de Kamp, 555 U.S. at 341 (noting

that prosecutorial immunity applies to actions “intimately associated with the judicial phase of the

criminal process”). The same is true regarding his allegations pertaining to the criminal

investigation, (see generally Doc. 1-1 at ¶¶ 103–35), as they concern Defendant Abigail Saving’s

offers made during pre-trial negotiations. See Rogers v. O’Donnell, 737 F.3d 1026, 1032 (6th Cir.

2013) (noting that examples of “investigative” or “administrative” actions include “giving advice

to police officers, or making a press conference statement, or making a statement in application

for a warrant”).

In short, there are no factual allegations in the Complaint from which the Court could draw

the reasonable inference that Defendant Abigail Saving acted as anything other than “advocate”

for the State. See Red Zone 12 LLC, 758 F. App’x at 514; see also Huffer v. Bogen, No. 1:10-CV-

312-HJW, 2011 WL 5037209, at *5 (S.D. Ohio Oct. 24, 2011), aff’d, 503 F. App’x 455 (6th Cir.

2012) (quotation marks and citation omitted) (dismissing plaintiff’s claims against prosecutors

where allegations “fail[ed] to allege any facts outside of traditional prosecutorial functions”).

Plaintiff’s claims against her are, therefore, barred by prosecutorial immunity and must be

dismissed.

3. Sovereign Immunity

Plaintiff’s claims against the FBI also cannot proceed. In Bivens v. Six Unknown Agents,

the Supreme Court held that a plaintiff could recover damages from federal agents for injuries

inflicted in violation of the individual’s Fourth Amendment rights. 403 U.S. at 338, 389 (1971).

“Such claims are the counterpart to suits under 42 U.S.C. § 1983 against state officials who

infringe plaintiffs’ federal constitutional or statutory rights.” Vector Res., Inc. v. Howard &

Howard Att’ys, P.C., 76 F.3d 692, 698 (1996). Importantly, however, Bivens does not apply to

federal agencies. See Smith v. F.B.I., 22 F. App’x. 523, 524 (6th Cir. 2001) (citing Fed. Deposit

Ins. Corp. v. Meyer, 510 U.S. 471, 485–86 (1994)). Because the FBI is a federal agency, Plaintiff’s

claims against it cannot proceed.

4. Political Subdivision Immunity

Finally, Plaintiff alleges that several individual Defendants, as well as the City of Logan

(“the City”), negligently retained Defendant Mowery. More specifically, he alleges that the City

failed to fire Defendant Mowery after he publicly posted his white supremacist beliefs and that the

City’s policies and procedures should have “prevented these violations” or that those policies and

procedures were the direct and proximate cause of “these violations.” (Doc. 1-1 at ¶¶ 179–84).

Similarly, Plaintiff alleges that the Captain of Logan’s Police Department, Ryan Gabriel, along

with Logan Police Detective, Ben Skinner, Logan Patrol Supervisor, Michael Walton, and the

City’s Mayor, Greg Fraunfelter, knew Defendant Mowery was a white supremacist and negligently

allowed him to remain on the police force. (Id. at ¶¶ 176–78). Plaintiff notes that he is “an LGBT

individual,” and Defendant Mowery is a “Neo-Nazi.” (Id. at 33).

Ohio law, however, offers a broad grant of immunity to political subdivisions and their

employees for civil damages actions arising from an alleged “act or omission of the political

subdivision or an employee of the political subdivision in connection with a governmental or

proprietary function.” Ohio Rev. Code § 2744.02(A)(1). There are certain exceptions to this broad

grant of immunity, as specifically described in § 2744.02(B) and § 2744.03(A)(6); however,

Plaintiff does not raise any of them.

Notably, this statutory immunity applies to only claims for damages, and Plaintiff does not

state a specific prayer for relief in his Complaint. To the extent he is seeking monetary relief from

these Defendants, those claims are DISMISSED. To the extent he is seeking injunctive relief, he

may amend his Complaint accordingly within twenty-one (21) days of the date of this Order. Any

such amendment must specify with particularity the precise injunctive relief requested as to each

of these Defendants.

D. Heck Doctrine

Plaintiff alleges that Defendant Mowery failed to advise him of his Miranda rights or

provide him an attorney after he requested one. But because a ruling on these claims would call

into question his continuing confinement of two years’ probation, these claims are barred by the

Heck Doctrine. See Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). And because the exceptions

to that doctrine—that the reason for his confinement has been reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal, or called into question by a federal court’s

issuance of a writ of habeas corpus—do not apply, Plaintiff’s claims may not proceed. See, e.g.,

Ray v. Jefferson Cty., No. 16–6850, 2017 WL 6759307, at **1–2 (6th Cir. Dec. 5, 2017)

(upholding, under Heck, dismissal of § 1983 claims against officer who allegedly elicited an

incriminating response without providing Miranda warning after plaintiff requested counsel).

E. Unreasonable Searches

Plaintiff alleges that: (1) SEORJ guards unconstitutionally strip searched him; (2) SEORJ

employees collected his DNA despite having been arrested for a misdemeanor and not a felony;

and (3) Defendant Cluley made false statements to obtain a search warrant. The Undersigned

addresses each claim in turn.

1. Strip Search

Plaintiff names SEORJ “as an entity as well as the guards individually” but does not specify

whether he is suing the guards in their official or personal capacity. In any event, Plaintiff alleges

that he was placed in a holding cell and strip searched. (Doc. 1-1, ¶ 170). He alleges that the strip

search “further[] [] inva[ded] [his] privacy to even more extreme levels.” (Id.).

The Supreme Court has held that “detainees may be subjected to suspicionless strip

searches as part of the jail’s intake process.” See Florence v. Bd. of Freeholders of Cty. of

Burlington, 566 U.S. 318, 328 (2012). In other words, “as a general matter, strip searches of

pretrial detainees are constitutionally permissible.” Johns v. Oakland Cty., No. 15-CV-12924,

2016 WL 4396065, at *6 (E.D. Mich. Aug. 18, 2016) (citing Florence, 556 U.S. at 328). Jails may

not, however, “conduct a strip-search in any way, shape, or form,” including, for example, “‘in

intentional and other abusive practices.’” Johns, 2016 WL 4396065, at *7 (quoting Florence, 556

U.S. at 339).

But Plaintiff does not allege particular facts surrounding the strip search. Cf. Johns, 2016

WL 4396065, at *7 (internal quotation marks and citations omitted) (“Here, Johns alleges not only

that she was strip searched, but that she was strip searched in an abusive manner: while female

officers performed the search, they did so in front of male guards, and with Johns’ clothes being

ripped from her body.”). Accordingly, Plaintiff’s general allegation that he was strip searched

upon booking fails as a matter of law. See Florence, 556 U.S. at 328.

2. DNA Collection

Plaintiff also alleges that SEORJ, through its employees, collected his DNA even though

Ohio law mandates DNA collection from only felony arrestees. See Ohio Rev. Code § 2901.07

(requiring the head of a law enforcement agency, sheriff, or chief of police to collect DNA from

adult felony arrestees). To the extent Plaintiff is seeking to hold SEORJ employees liable in their

official capacities, Plaintiff would need to allege facts showing that SEORJ had a policy or custom

that resulted in the unconstitutional conduct. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436

U.S. 658, 690 (1978). But there are no facts suggesting that SEORJ had a policy or custom that

permitted its employees to collect DNA from non-felony arrestees. Accordingly, Plaintiff fails to

state a claim for relief against SEORJ or its guards in their official capacities.

To the extent Plaintiff is seeking to hold SEORJ unnamed guards liable in their personal

capacities, his claims may proceed. Plaintiff alleges that the individual unnamed guards at SEORJ

collected his DNA even though he was not charged with a felony offense. Because Plaintiff alleges

that he was charged with a misdemeanor and not a serious crime, his claim survives this initial

screen. See Crabbs v. Scott, 800 F. App’x 332, 334 (6th Cir. 2020) (recognizing that Ohio law

“require[s] DNA collection only from felony arrestees”).

3. Search Warrant

Plaintiff alleges that Defendant Cluley made deliberate falsehoods in his affidavit in

support of a search warrant, including that officers removed a knife from Plaintiff’s person during

his arrest, despite other officers telling Defendant Cluley that he did not possess a weapon. (Doc.

1-1 at ¶¶ 79–83). The Undersigned notes that the State conceded that the warrant was deficient at

the suppression hearing. (Id. at ¶ 117).

“An officer who obtains a search warrant by making materially false statements in the

affidavit on which the warrant is based may be held liable” where “(1) the officer made the false

statements knowingly and intentionally or with a reckless disregard for the truth and (2) setting

aside the false statements, the remainder of the affidavit is insufficient to establish probable cause.”

Ghaster v. City of Rocky River, 913 F. Supp. 2d 443, 465 (N.D. Ohio 2012) (citing Hill v. McIntyre,

884 F.2d 271, 275 (6th Cir. 1989)).

To the extent Plaintiff seeks to hold Defendant Cluley liable in his official capacity,

Plaintiff has failed to show that the Logan Police Department had a custom or policy resulting in

Plaintiff’s alleged constitutional deprivation. See Monell, 436 U.S. at 690. Regarding Defendant

Cluley’s personal liability, while the facts of the case may show otherwise, Plaintiff has pled

enough to state a plausible illegal search claim against him. Cf. Gonzales v. City of Fostoria, No.

3:13 CV 796, 2014 WL 99114, at *8 (N.D. Ohio Jan. 9, 2014) (dismissing illegal search claim

where complaint failed to identify any false statements contained in the application for the search

warrant).

F. Excessive Force

Plaintiff alleges that Defendant Mowery attacked him during his arrest, grabbing him by

the collar, whipping him to his knees, slamming his head into the concrete, and leaving bruises on

his abdomen. (Doc. 1-1 at ¶ 57). Plaintiff also alleges that Defendant Mowery handcuffed him so

tightly that his wrists lost circulation and bruised. (Id. at ¶ 59). Plaintiff further alleges that

Defendant Mowery used force even though Plaintiff physically complied during his arrest. (Id. at

¶ 56). Additionally, Plaintiff alleges that, after Defendant Mowery used excessive force,

Defendant Detective Skinner piled onto him and tasered him, and Defendant Captain Gabriel,

along with other officers, “pushed [his] way through to brutally restrain Plaintiff.” (Id. at ¶¶ 154,

164).

“It is axiomatic that individuals have a constitutional right not to be subjected to excessive

force during an arrest.” Brient v. Calendine, No. 2:15-CV-2965, 2015 WL 7076671, at *5 (S.D.

Ohio Nov. 13, 2015), report and recommendation adopted, No. 15-CV-2965, 2016 WL 164102

(S.D. Ohio Jan. 14, 2016) (citing Graham v. Connor, 490 U.S. 386, 388 (1989)). If, however, “the

amount of force used to accomplish the arrest is objectively reasonable based on Fourth

Amendment seizure principles, then no constitutional violation occurred.” Brient, 2015 WL

7076671, at *5.

To the extent Plaintiff seeks to hold these officers liable in their official capacities, Plaintiff

has failed to allege facts showing that the Logan Police Department had a custom or policy

resulting in Plaintiff’s constitutional deprivation. See Monell, 436 U.S. at 690. But Plaintiff’s

allegations, on their face, state a plausible excessive force claim against them in their personal

capacities. Plaintiff may proceed with these claims as a result.

V. CONCLUSION

Plaintiff’s request to proceed in forma pauperis is GRANTED. And based upon the

foregoing, it is RECOMMENDED that Plaintiff be permitted to proceed with his claims against:

(1) Defendants Unnamed SEORJ Guards for their alleged unconstitutional collection of his DNA;

(2) Defendant Cluley for his alleged misrepresentations in obtaining a search warrant; and

(3) Defendants Mowery, Skinner, and Gabriel for their alleged excessive force against Plaintiff.

Because Plaintiff’s Complaint does not specify damages or injunctive relief, Plaintiff is

ORDERED to amend his Complaint to include specific relief requested from each Defendant

within twenty-one (21) days of the date of this Report and Recommendation. It is further

RECOMMENDED that Plaintiff’s remaining claims be DISMISSED.

Finally, it is RECOMMENDED that the Court certify pursuant to 28 U.S.C. § 1915(a)(3)

that for the foregoing reasons an appeal of an Order adopting this Report and Recommendation

would not be taken in good faith and, consequently, leave for Plaintiff to appeal in forma pauperis

is DENIED.

Procedure on Objections to Report and Recommendation

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: December 4, 2020 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE