# Cotterman v. City Of Cincinnati

> District Court, S.D. Ohio · June 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10378080

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10378080

## How later opinions describe it (automated extraction)

- declining to extend Miller to ISP records
- holding that a municipal policy must be the ‘moving force’ behind a constitutional deprivation
- explaining that the statute of limitations period begins “when the plaintiff knows or has reason to know that the act providing the basis of his or her injury has occurred”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CIVIL ACTION NO. 1:17-cv-00608-WOB-KLL
JASON COTTERMAN PLAINTIFF

VS. MEMORANDUM OPINION AND ORDER

CITY OF CINCINNATI;
ELIOT ISAAC, in his official capacity as
Chief of Police for the Cincinnati Police
Department; MATTHEW DEBLAUW,
in his official capacity as Special Agent
for the Federal Bureau of Investigation
and his individual capacity; AND
MICHELLE LONGWORTH, in her
official capacity as a City of Cincinnati
Police Officer and her individual capacity. DEFENDANTS.

This is a 42 U.S.C. 1983 case that arises from the discharge of Cincinnati Police Officer,
Jason Cotterman. After his termination, the City of Cincinnati failed to reinstate Cotterman to the
Cincinnati Police Department (CPD). In his second amended complaint, Cotterman claims the
City of Cincinnati deprived him of numerous constitutional rights and alleges claims of abuse of
process and malicious prosecution. (Doc. 107). Also, Cotterman sued FBI agent, Matthew
DeBlauw, for violating his constitutional rights. Id. The City of Cincinnati, Chief of Police, and
Michelle Longworth (collectively “Defendants”) moved to dismiss for failure to state a claim.
(Doc. 111). Matthew DeBlauw moved to dismiss for failure to state a claim and lack of
jurisdiction. (Doc. 113).
The Court previously heard oral argument and took the motions under submission. (Doc.
106). Having carefully reviewed the record, the Court now issues the following Memorandum
Opinion and Order.
Factual and Procedural Background
Before Cotterman became a police officer, he served in the United States Marine Corps

from 1995-2000. However, a traumatizing and embarrassing experience led him to leave the
Corps. (Doc. 87 at 6). To expediate his dismissal from the Corps, he attempted suicide. (Doc. 87
at 7). Ultimately, Cotterman received an Honorable Discharge. By 2004, Cotterman joined the
CPD. For years, Cotterman had a solid service record with good evaluations. (Doc. 1 at 2).
On March 22, 2015, Cotterman investigated an accident involving an off-duty police
officer. The accident involved a one-car collision with a stationary object. At least one witness

believed the off-duty officer was driving impaired, but the story was later found to be
uncreditable. (Doc. 1 at 3). As the lead investigator on scene, Cotterman decided not to not cite
his fellow officer. (Doc. 1 at 3). That decision led to Cotterman being investigated, and criminally
prosecuted, for dereliction of duty and obstruction of justice. Cotterman alleges the CPD acted
for political reasons in their prosecution. (Doc. 1 at 3).
Pending the investigation, the CPD transferred Cotterman to a different district. This
caused Cotterman to become angry at, what he believed were, unfair events. (Doc. 1 at 4).

Because of his anger, the CPD ordered him to see the police psychologist. After Cotterman’s
meeting with the psychologist, the CPD placed Cotterman on administrative leave while awaiting
his criminal trial.
A year later, Cotterman had his trial. At trial, Cotterman failed to move to suppress
evidence or challenge any evidence used against him as being “fruit of the poisonous tree”. But,
ultimately, the jury acquitted Cotterman.

Following the trial, Michelle Longworth, the Internal Investigation officer assigned to
Cotterman’s case, contacted FBI agent Matthew DeBlauw to obtain Cotterman’s military
records—without Cotterman’s permission. (Doc. 1 at 5). Longworth stated she needed the
records to confirm Cotterman worked as a sniper in the military. When DeBlauw sent the records,
it included some medical records.

The CPD medically separated Cotterman based on the psychologist’s recommendation that
he was unfit for duty. Cotterman appealed the medical separation to the City of Cincinnati Civil
Service Commission. Yet he never showed for his hearing, forfeiting his right to challenge his
discharge. Cotterman worked to restore himself to full health but was denied reinstatement to the
CPD. (Doc. 1 at 7). The CPD’s psychologist still found Cotterman unfit for duty, partly because
of his military medical records. (Doc. 1 at 7). During this time, Cotterman continued alleging the
CPD was acting with a political motivation. Ultimately, Cotterman sued.

Analysis
A. Municipal Liability
Cotterman’s complaint specifically names the Defendants in their “official” capacities. As

a result, the claims against the Cincinnati Chief of Police and police officers are essentially claims
against the entity for which they are agents—the City of Cincinnati. Thus, his complaint fails to
state a viable claim against the City of Cincinnati because municipalities are not vicariously liable
for the actions of their employees under § 1983. “It is firmly established that a municipality, or ...
a county, cannot be held liable under § 1983 for an injury inflicted solely by its employees or
agents.” Gregory v. Shelby County, Tenn., 220 F.3d 433, 441 (6th Cir. 2000) (citing Monell v. New
York City Dept. of Social Services, 436 U.S. 658, 694 (1978)).

Rather, to state a claim for relief against the City of Cincinnati, the complaint must assert
facts showing the misconduct leading to Cotterman’s injuries stemmed from a policy, statement,
regulation, decision, or custom promulgated by the City. Bright v. Gallia Cnty., Ohio, 753 F.3d
639, 660 (6th Cir. 2014), cert, denied, 135 S. Ct. 1561 (2015) (citing Shamaeizadeh v. Cunigan,
338 F.3d 535, 556 (6th Cir. 2003)); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994); Monell,
436 U.S. at 694; Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996).

“The ‘official policy’ requirement [of Monell] was intended to distinguish acts of the
municipality from acts of employees of the municipality, and thereby make clear that municipal
liability is limited to action for which the municipality is actually responsible.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original). Thus, to succeed on this claim,
“plaintiff must adequately plead (1) that a violation of a federal right took place, (2) that the
defendants acted under color of state law, and (3) that a municipality's policy or custom caused
that violation to happen.” Bright, 753 F.3d at 660 (citing Lambert v. Hartman, 517 F.3d 433, 439
(6th Cir. 2008)). See also Polk County v. Dodson, 454 U.S. 312 (1981) (holding that a municipal
policy must be the ‘moving force’ behind a constitutional deprivation).

Cotterman’s complaint fails to allege any facts showing that the alleged violation of his
civil rights stemmed from a policy, custom, or practice of the City of Cincinnati. Instead, his
complaint alleges,
The Defendant City of Cincinnati Police Department, acted, under a policy
and custom of rewarding favorites of the Chief and punishing those who
hurt favorites of the Chief, to prosecute Jason Cotterman and the Sergeant
for alleged “dereliction of duty” and “obstruction of justice” in not citing
the officer involved in the one car collision.

(Doc. 49 at 4).
Although the complaint makes a blanket reference to a policy, it offers no factual basis. In
fact, the conclusory statement above cannot state a claim for relief under § 1983. Cotterman failed
to “identify the policy, connect the policy to the city itself and show that the particular injury was
incurred because of the execution of that policy.” Garner v. Memphis Police Dep't, 8 F.3d 358,
363-64 (6th Cir. 1993) (quoting Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987),
overruled on other grounds by Frantz v. Vill. of Bradford, 245 F.3d 869 (6th Cir. 2001)). See also
Burgess v. Fischer, 735 F.3d 462, 479 (6th Cir. 2013) (“[E]ven assuming there was an underlying
constitutional violation, we affirm the dismissal of the Monell claim because Plaintiffs have failed
to set forth sufficient facts to establish an unconstitutional custom or policy.”).
Nor does Cotterman allege any facts showing a custom or practice was the moving force
behind his arrest, detention, and prosecution. “[A] custom-of-tolerance claim requires a showing
that there was a pattern of inadequately investigating similar claims.” Burgess, 735 F.3d at 478
(citations omitted). His complaint fails to assert the existence of any other instances of misconduct
that would plausibly support an inference of such a pattern.
To refute this argument, Cotterman argues that the “policy”, at the very least, shows the
CPD and Chief of Police failed to “adequately train and supervise” its officers. This is exactly the
type of legal conclusion couched as a factual allegation that does not pass muster. Ashcroft v. Iqbal,

556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
“A failure-to-train claim ... requires a showing of prior instances of unconstitutional
conduct demonstrating that the [municipality] ha[d] ignored a history of abuse and was clearly on
notice that the training in this particular area was deficient and likely to cause injury.” Burgess,
735 F.3d at 478 (internal quotations marks and citations omitted). Cotterman’s complaint fails to
allege a single prior instance or statistic in support of this claim. Because there are no factual
allegations that would “raise a right to relief above the speculative level,” Cotterman's conclusory
allegations of an unidentified policy and of a failure to train and supervise fail to state a claim for
relief under § 1983. Twombly, 550 U.S. at 555.

B. Defendant Longworth
Longworth seeks dismissal based on the affirmative defense of qualified immunity. To
overcome qualified immunity, Cotterman must prove that Longworth’s conduct violated clearly
established law. Qualified immunity shields government officials from civil liability when their
conduct “does not violate clearly established statutory or constitutional rights which a reasonable
person would have known.” Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). The burden is on the plaintiff to establish the defendant is
not entitled to qualified immunity. Miller v. Admi. Office of the Courts, 448 F.3d. 887, 894 (6th
Cir. 2006).
In Anderson v. Creighton, the Supreme Court of the United States reaffirmed those
principles governing an inquiry into the validity of a defense of qualified immunity: “[W]hether
an official protected by qualified immunity may be held personally liable for an allegedly unlawful
official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in

light of the legal rules that were ‘clearly established’ at the time it was taken.” 483 U.S. 635, 639
(1987). The “objective legal reasonableness” test requires the Court to examine whether a
reasonable officer could have believed that the wrongful conduct was lawful, given clearly
established law. Id. at 641.
Thus, this Court must determine whether obtaining medical records without a warrant
violated clearly established law. Cotterman’s allegations, taken as true, charge Longworth with
violating his Fourth Amendment right. To overcome his burden, Cotterman must prove that a
clearly established constitutional right was violated. Estate of Carter, 408 F.3d at 310-11.

To determine whether a constitutional right is clearly established, a court “must look first
to decisions of the Supreme Court, then to decisions of [the Sixth Circuit] and other courts within
[the Sixth Circuit], and finally to decisions of other circuits.” Baker v. City of Hamilton, 471 F.3d
601, 606 (6th Cir. 2006) (citations omitted). Such decisions must point unmistakably to the
unconstitutionality of the conduct complained of and be supported by applicable direct authority
that leaves no doubt in the mind of a reasonable officer that his conduct, if challenged on
constitutional grounds, would be found wanting. Durham v. Nu'Man, 97 F.3d 862, 866 (6th Cir.

1996) (citation and quotation omitted). Especially without declarative Supreme Court precedent,
lower courts must have defined the constitutional right at issue with sufficient certainty and clarity,
so that it “would be clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson v.
Callahan, 555 U.S. 223, 236 (2009).
The Sixth Circuit has explained that “[o]fficials are not liable for bad guesses in gray areas;
they are liable for transgressing bright lines.” Rudlaff v. Gillespie, 791 F.3d 638, 644 (6th Cir.

2015) (quoting Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992)). When determining
whether a particular law or right is “clearly established”, courts “should not define it at a high level
of generality.” White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation marks and citation
omitted). “The clearly established law must be ‘particularized’ to the facts of the case.” Id.
In Kerns v. Bader, a sheriff obtained plaintiff’s medical records from a VA hospital where
he had received treatment. 663 F.3d 1173, 1183 (10th Cir. 2011). The hospital provided the records
voluntarily. Id. at 1179. In holding that Fourth Amendment law was not so clearly established as
to require a warrant in such a case, the Kerns court explained:

Complicating the Fourth Amendment analysis in this case is the role of
third party doctrine. Under that doctrine, “the Fourth Amendment does not
prohibit the obtaining of information revealed to a third party and
conveyed by [the third party] to Government authorities, even if the
information is revealed [to the third party] on the assumption that it will
be used only for a limited purpose and the confidence placed in the third
party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96
S.Ct. 1619, 48 L.Ed.2d 71 (1976). The Supreme Court has already applied
third party doctrine to financial information, holding that the government
may seek without a warrant confidential information clients have entrusted
to their banks for safe keeping. Id. And at least some courts have indicated
the same analysis applies to personal medical records entrusted by patients
to hospitals or care providers—allowing law enforcement to seek without
a warrant medical records held by third parties. See Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment § 2.7(d) (4th ed.
2004) (collecting authority). While there's certainly room to debate
whether and how third party doctrine should apply to medical records, see,
e.g., Poornima L. Ravishankar, Comment, Planned Parenthood is Not a
Bank: Closing the Clinic Doors to the Fourth Amendment Third Party
Doctrine, 34 Seton Hall L.Rev. 1093 (2004); United States v. Warshak,
631 F.3d 266 (6th Cir. 2010) (declining to extend Miller to ISP records),
and while we in no way prejudge these questions, the fact that a live (and
heated) debate exists on them is more than enough to preclude us from
saying that the Sheriff violated clearly established law when he sought
records held by a third party care provider.
Id. at 184-1185.
Additionally, courts within this circuit, and other courts across the country, rely on Kerns
to hold that the Fourth Amendment right is not clearly established when it pertains to warrants
for medical records. See, e.g., Gold v. City of Sandusky, 3:15 CV 2001, 2018 WL 1468992, at
*11 (N.D. Ohio Mar. 26, 2018).
Cotterman has thus not shown that the Fourth Amendment law was so “clearly established
to the extent that a reasonable person in the officer's position would know the conduct complained
of was unlawful.” O'Malley v. City of Flint, 652 F.3d 662, 667 (6th Cir. 2011). Defendant
Longworth is thus entitled to qualified immunity.

C. Defendant Deblauw
DeBlauw argues the claims against him should be dismissed for four reasons: (1) a Bivens1
remedy does not exist; (2) he is entitled to qualified immunity; (3) Cotterman’s claims are
untimely; and (4) Cotterman failed to plead a viable substantive claim.

First, the Court will begin with the Bivins analysis. Bivens recognizes when a person may
bring a claim for damages against a federal agent for alleged violations of constitutional or
statutory rights. Bivens claims may arise in three circumstances: (1) unlawful search and seizure
in violation of the Fourth Amendment; (2) termination of employment based on gender
discrimination in violation of the Fifth Amendment due process clause; and (3) failure to provide
adequate medical treatment to an inmate under the cruel and unusual punishment clause of the
Eighth Amendment. See also Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S.
14 (1980).
Cotterman asks this Court to extend Bivens claims to include the dissemination of medical
records to another officer. In the alternative, he argues that DeBlauw’s actions fall within the

Fourth Amendment category.
Extending a Bivens claim beyond the three recognized categories noted above is commonly
discouraged. In Ziglar v. Abbasi, the Supreme Court made it clear that expansion of Bivens is a

1 Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
“disfavored judicial activity”. 137 S. Ct. 1843, 1857 (2017). In fact, an exception cannot be made
if: (1) “alternative, existing process[es]” guard against the type of harm at issue; or (2) any other
“special factors counse[l] hesitation” in implying a damages remedy. Wilkie v. Robbins, 551 U.S.
537, 550 (2007).

Cotterman alleges DeBlauw violated his constitutional right to privacy by disseminating
his military medical records. However, the Sixth Circuit has declined to extend Bivens to privacy
issues. In Downie v. City of Middleburg Heights, the Court held “the Privacy Act is a
comprehensive legislative scheme that provides a meaningful remedy for the kind of wrong
Downie alleges that he suffered” and for that reason, courts “should not imply a Bivens remedy.”
301 F.3d 688, 696 (6th Cir. 2000).

Also, a Court should not extend Bivens when there is “reason to pause before applying
Bivens in a new context or to a new class of defendants.” Hernandez v. Mesa, 140 S.Ct. 735, 744
(2020). Here, Cotterman’s extension request could deter law enforcement from sharing
information and expose defendants to being sued in their individual capacities, even if the sharing
of information is permissible under the Privacy Act.

In the alternative, Cotterman argues that DeBlauw conducted an illegal warrantless search
by disclosing his medical records. But this alleged harm could be remedied under the Privacy Act.
All of these factors dictate denying Cotterman’s request for an extension of Bivens.
Furthermore, DeBlauw is entitled to qualified immunity. As noted above, courts are
actively debating whether it is a Fourth Amendment violation for medical records to be provided
without a warrant. See Kerns v. Bader, 663 F.3d 1173, 1183 (10th Cir. 2011); Gold v. City of

Sandusky, 3:15 CV 2001, 2018 WL 1468992, at *11 (N.D. Ohio Mar. 26, 2018); Lee v. City of
Columbus, Ohio, 636 F.3d 245 (6th Cir. 2011); Summe v. Kenton Cnty. Clerk’s Office, 604 F.3d
257 (6th Cir. 2010). Like Longworth, therefore, DeBlauw is protected by qualified immunity.
Finally, DeBlauw also contends that the claims against him are untimely. This Court
agrees. §1983's statute of limitation period begins on the date of the constitutional violation. See
Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007) (explaining that the statute of limitations period

begins “when the plaintiff knows or has reason to know that the act providing the basis of his or
her injury has occurred”) (citations omitted). State law governs the statute of limitations for 42
U.S.C. § 1983 actions. Specifically, it is governed by the limitations period for personal injury
cases in the state in which the cause of action arose. Wallace v. Kato, 127 S. Ct. 1091, 1094 (2007).
Cotterman argues the applicable statute of limitations should be four years under Ohio Rev. Code
2305.09—but that is incorrect.

Courts have repeatedly held Ohio Rev. Code 2305.10 governs the applicable statute of
limitations for §1983 actions. Carter v. Furmon, 2018 WL 3377148 (S.D. Ohio 2018); Zappone
v. United States, 870 F.3d 551 (6th Cir. 2017); Webster v. Spears, 664 Fed. Appx. 535, 537 (6th
Cir. 2016); Santino v. Columbus Public Sch., 833 F. Supp. 2d 780, 793 (S.D. Ohio 2011); Bishop
v. Children's Ctr. for Developmental Enrichment, 618 F.3d 533, 536 (6th Cir. 2010). In Ohio, that
statute of limitations is two years. Id.; see also Ohio Rev. Code 2305.10. 2

2 Ohio Rev. Code 2305.10 was found unconstitutional by Groch v. Gen. Motors Corp. However, it is only
unconstitutional for section (f), which is inapplicable to the statute of limitation provision at issue here.
Groch, 2008-Ohio-546, 199, 117 Ohio St. 3d 192, 227, 883 N.E.2d 377, 410. (“[T]o the extent that former
R.C. 2305.10(F) (now (G)) affects an accrued substantive right by providing an unreasonably short period
of time in which to file suit for certain plaintiffs whose injuries occurred before the S.B. 80 amendments to
R.C. 2305.10 became effective, and whose causes of action therefore accrued for purposes of R.C.
2305.10(C), former R.C. 2305.10(F) is unconstitutionally retroactive under Section 28, Article II of the
Ohio Constitution.”). Courts have continued to hold the applicable statute of limitations for §1983 claims
is two years. See Webster v. Spears, 664 Fed. Appx. 535, 537 (6th Cir. 2016); Santino v. Columbus Public
Sch., 833 F. Supp. 2d 780, 793 (S.D. Ohio 2011); Bishop v. Children's Ctr. for Developmental Enrichment,
618 F.3d 533, 536 (6th Cir. 2010).
Here, a jury acquitted Cotterman in March 2016 and he was dismissed as a CPD officer in
May 2016—at the latest. (Doc. 49 at 6). Thus, the latest Cotterman could bring a timely claim
was 2018. The original complaint was filed in 2017, but the amended complaint—adding
DeBlauw—was filed in 2019.
Cotterman argues that even if the limitations period is two years, he tolled the statute of

limitations by naming a “John Doe” defendant. That is incorrect. “The naming of a John Doe
defendant does not toll the statute of limitations.” Cox v. Treadway, 75 F.3d 230, 240 (6th Cir.
1996); see also Cooper v. Montgomery County, Ohio, 199 F. Supp. 3d 1189, 1191-92 (S.D. Ohio
2016). Nor does amending the complaint to add DeBlauw relate back to the original complaint.
See Fed. R. Civ. P. 15(c)(1)(C).
Fed. R. Civ. P. 15(c)(1)(C) allows for an amendment of parties to relate back to the original
complaint if,
the amendment changes the party or the naming of the party against whom
a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and complaint, the party
to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced
in defending on the merits; and

(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party's identity.

Id. The amendment does not relate back simply because a plaintiff fails to exercise due diligence
in determining the identity of a John Doe. Cooper, 199 F. Supp. 3d at 1190 (citing Brown v.
Cuyahoga Cty., 517 Fed. Appx. 431, 433-34 (6th Cir. 2013); Smith v. Akron, 476 Fed. Appx. 67,
69 (6th Cir. 2012).
For all these reasons, Cotterman’s claims against DeBlauw must be dismissed.
Therefore, having reviewed this matter, and the Court being advised,
IT IS ORDERED that the Defendants’ motions to dismiss (Docs. 111, 113) be, and are
hereby, GRANTED. A separate judgment shall enter concurrently herewith.
This 25th day of June 2021

KER Signed By:
WO. Fy William O. Bertelsman }\()P
“Sms"—_—: United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378080. Public record. Not legal advice.