The opinion
[Cite as White v. Cleveland, 2025-Ohio-739.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
DALONTE WHITE, :
Plaintiff-Appellee, :
Nos. 112408, 112413, and
v. : 112415
CITY OF CLEVELAND, ET AL., :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: March 6, 2025
Civil Appeal from the Court of Common Pleas
General Division
Case No. CV-17-880097
Appearances:
The Chandra Law Firm, LLC, Subodh Chandra, and
Donald P. Screen, for appellee.
Mark D. Griffin, Cleveland Director of Law, Elena N.
Boop, Chief Trial Counsel, James R. Russell, Jr., Chief
Assistant Director of Law, and Affan Ali, Assistant
Director of Law, for appellants Robert Beveridge, John
Kubas, David Santiago, Sr., Michael Schade, and Thomas
Shoulders.
Wilkerson & Associates Co., LPA, Ernest L. Wilkerson, Jr.,
and Kathryn M. Miley, for appellant David Lam.
ANITA LASTER MAYS, J.:
{¶ 1} This consolidated appeal arises from 42 U.S.C. 1983 federal and state
claims filed by plaintiff-appellee Dalonte White (“White”) against defendants-
appellants: (1) the City of Cleveland (“City”); (2) members of the Cleveland Police
Department, Officer Michael Schade (“Ofc. Schade”), Sergeant Thomas Shoulders
(“Sgt. Shoulders”), and detectives Robert Beveridge, (“Det. Beveridge”), John Kubas
(“Det. Kubas”), and David Santiago (“Det. Santiago”) (collectively the “Officers”),
and (3) Detective David Lam (“Det. Lam”). White’s claims concern his arrest for a
home invasion involving a shooting, robbery, and assault. Although the juvenile
court found no probable cause to bind White over to adult court, he remained
incarcerated for 20 months after his arrest.
{¶ 2} White initiated this action in the Cuyahoga County Court of Common
Pleas. The case was removed to the United States District Court for the Northern
District of Ohio. The federal court granted summary judgment for defendants on
White’s federal claims but declined to exercise supplemental jurisdiction over the
remaining state-law claims, remanding them to the state trial court. On remand,
the trial court denied appellants’ motions for summary judgment, citing disputed
issues of material fact.
{¶ 3} The City now appeals the trial court’s refusal to grant summary
judgment on its claim of sovereign immunity under R.C. 2744.02. The Officers and
Det. Lam separately appeal the trial court’s denial of immunity under R.C.
2744.03(A)(6)(b) and (A)(6)(c) and contend that the doctrine of collateral estoppel
precludes relitigating or reconsideration of factual or legal issues determined by the
district court. Det. Lam also assigned error to the trial court’s denial of a stay under
the Servicemembers Civil Relief Act, 50 U.S.C. 3932 (“Relief Act”), but now concedes
that the issue is moot.
{¶ 4} For the reasons that follow, in this split decision, Part I, delivered by
Judge Anita Laster Mays, and joined by Judges Mary J. Boyle and Sean C. Gallagher,
reverses the trial court’s decision on assignment of error one refusing to grant
summary judgment to the City of Cleveland on the issue of immunity. Further, we
sustain the City’s second assignment of error. Neither the trial court nor this court
has jurisdiction to review a federal court’s decision.
{¶ 5} Part II, delivered by Judge Sean C. Gallagher, and joined by Judge
Mary J. Boyle, reverses the trial court’s judgment on the issue of collateral estoppel
as to all officers individually. Judge Anita Laster Mays dissents with a separate
opinion on the issue of collateral estoppel as to all officers individually. This matter
is remanded to the trial court for further proceedings consistent with this opinion.
Part I
Background and Facts
{¶ 6} White alleges that he was arrested and detained based solely on
flawed eyewitness identifications, a lack of evidence, false police reports, alleged
witness tampering, and other intentional violations of his civil rights. For efficiency,
both the trial court and the federal court incorporated the factual background from
White v. Cleveland, N.D. Ohio No. 1:17-CV-01165, 2020 U.S. Dist. LEXIS 241429
(Dec. 23, 2020) (“White I”).
The Incident
{¶ 7} On April 21, 2015, three males entered the home of victim C.A. The
assailants also robbed two of C.A.’s teenage relatives (“S.L.” and “Z.H.”). One
assailant (“the shooter”) pistol whipped and shot C.A. in the shoulder; a dog
belonging to C.A. was also shot. The victims believed that the shooter shot himself
in the leg or foot when one of the dogs bit him. Police issued alerts to local hospitals.
{¶ 8} Initial reports indicated that neither teen witness got a good look at
the shooter’s face. However, the victims described the shooter as a tall, heavy-set
individual with braided hair. The federal court’s decision noted that a responding
officer’s report initially described the shooter as having braided hair, being at least
six feet tall, and weighing 250 pounds. Because the officer interviewed multiple
people at the scene, the source of the description was unclear. White maintains that
the evidence shows the teenagers provided that description.
{¶ 9} Once additional officers arrived, they canvassed the neighborhood
and obtained surveillance footage from a neighbor’s home. The video showed an
individual limping with dreadlocks or braids, wearing a dark North Face jacket, dark
pants, and white shoes, tucking a firearm into his waistband. Consistent with the
teen victims’ statements and the video, police asked dispatch to watch hospitals for
anyone reporting with a leg or foot injury from a dog bite or gunshot.
{¶ 10} While at the scene, Det. Lam learned from Ofc. Schade about a recent
aggravated-menacing complaint in the same area that reportedly identified White
and an associate, Rayvion Edwards (“Edwards”). However, the district court found
that the related menacing report did not actually name White as a suspect.
Investigation and Arrest
{¶ 11} The next day, Det. Lam and Sgt. Shoulders conferred with Det.
Beveridge, who was known for his knowledge of neighborhood gang activity.
Beveridge relayed that White and two other young males were affiliated with the
“Hungry Money Family” or “Heartless Money Family” (“HMF”) — a group believed
to be robbing people in that neighborhood. Based on that information, Lam
prepared three juvenile photo arrays: one featuring White and the others featuring
the other suspected HMF members. Because the juvenile photo database is small,
the only available photo of White showed him wearing braids while the filler photos
did not feature similar hairstyles.
{¶ 12} On April 23, 2015, the photo arrays were shown to the teen victims.
S.L. identified White as the shooter with 100 percent certainty, and Z.H. identified
White with 70 percent certainty. Neither teen identified anyone else in the other
arrays. They later explained they identified White partly because of his braids.
{¶ 13} On April 24, 2015, C.A. reportedly described the shooter as
approximately 5'5" and weighing 160 to 170 pounds — closer to White’s height and
weight (5'5", 135 pounds). C.A. identified White with 100 percent certainty. White
maintains that C.A. never provided this description and that it was later inserted.
On the same day, officers visited White’s home, photographed his legs, and found
no signs of dog bites or gunshot wounds. Although the injuries were crucial to the
suspect’s description, Det. Lam and Sgt. Shoulders obtained a warrant for White’s
arrest that same day. In the arrest-warrant affidavit, Sgt. Shoulders cited
information from Ofc. Schade’s alleged statement that White was a suspect in the
aggravated-menacing complaint, the surveillance video, and the teen victims’
identifications of White with high certainty.
{¶ 14} Police searching White’s home found a black North Face jacket.
Meanwhile, additional interviews with White’s associates (D.M. and Edwards)
indicated White was a known HMF member, allegedly bitten by a dog about a week
earlier, and that HMF members stored guns at one of their residences. Later,
warrants for White’s phones, Facebook records, and DNA yielded no additional
evidence supporting the theory that White was the shooter. White claims a witness
and social media posts placed him at home when the invasion occurred.
Subsequent Developments
{¶ 15} On May 1, 2015, police discovered that an individual named Edward
Bunch (“Bunch”) had arrived at Lakewood Hospital with a gunshot wound to the
right leg within an hour of the home invasion. Bunch gave inconsistent explanations
for the injury, including a claim that he was shot while riding a bicycle. Further
investigation revealed that Bunch was a 19-year-old, 6'0", 213-pound Black male
with a prior home-invasion arrest in which he allegedly used force and took items at
gunpoint. Despite these similarities, White remained in custody.
{¶ 16} Detectives prepared new photo arrays for Bunch and another suspect.
On May 13, 2015, C.A., S.L., and Z.H. were shown these new arrays. According to
official records, Det. Kubas identified Bunch with 90 percent certainty. Also, C.A.
testified during White’s July 2015 bindover hearing that she recognized Bunch’s
photo as the shooter but was told not to mark him because White had already been
arrested. S.L. gave a similar testimony, stating that the detective administering her
photo array instructed her not to circle someone previously identified.
{¶ 17} Kubas and Santiago denied telling any witness not to identify
someone already chosen. According to C.A.’s testimony, the revelation about
Bunch’s identification came to White’s defense counsel in June 2015. During
White’s July 16, 2015 bindover hearing,
C.A. and S.L. testified regarding their identifications of Bunch, as
described above. This was the first time that the prosecutor assigned to
the [C.A.] home invasion, Norman Schroth (“Schroth”), learned of the
alleged “serious and exculpatory” improprieties in the administration
of the photo arrays to [C.A.] and [S.L.]. The bindover hearing
continued on July 21, 2015, and concluded on July 24, 2015. At the
conclusion of the hearing, the judge held that there was no probable
cause that White was part of the [C.A.] home invasion, noting that all
three witnesses had identified Bunch, that White was the only one with
dreadlocks or twists in the photo arrays in which he had been identified
(while all of the individuals in Bunch’s photo arrays had similar
hairstyles), the conflicting descriptions of Suspect #1’s height and
weight, Bunch’s injury the night of the home invasion, and the lack of
evidence corroborating the initial identification of White, including the
lack of marks on White’s legs. Despite this finding, the judge did not
dismiss the case against White nor release him from detention. Schroth
indicated his belief that if there was no probable cause, the court had to
dismiss the case. However, after a short recess, the judge stated that
Ohio’s Eighth District Court of Appeals has held that it is the state’s case
and it may dismiss the case if it wishes, but that she was not
comfortable dismissing the charges outright. As a result, the judge set
the matter for trial, while noting the prosecution could dismiss the case.
White v. Cleveland, No. l:17-cv-116 J.E. at 13-14 (N.D. Ohio, Dec. 23, 2020).
{¶ 18} Although the bindover hearing did not result in the dismissal of the
charges, White was released on house arrest on July 31, 2015. He returned to
detention for violating the release terms in September 2015. Ultimately, the home-
invasion charges were dismissed without prejudice in December 2015, but White
stayed in detention until December 1, 2016, for additional assault charges
committed while in custody.
{¶ 19} White alleges that the “rigged” identifications and fabricated
menacing allegation were the only bases for probable cause in the arrest-warrant
affidavit. Moreover, White claims that officers continued to detain him, pursue him,
and falsified reports, despite the emergence of Bunch as a likely suspect.
{¶ 20} On May 9, 2017, White filed this civil suit in the Cuyahoga County
Court of Common Pleas. On April 17, 2020, White filed a second amended
complaint (“SAC”) against the City and the individual defendants in their personal
and official capacities alleging the following claims:
Claim 1: Fourth and Fourteenth Amendment malicious prosecution
under 42 U.S.C. § 1983 against all defendants;
Claim 2: Fourth and Fourteenth Amendment false arrest/false
imprisonment under 42 U.S.C. § 1983 against all defendants, except
Kubas and Santiago;
Claim 3: Fourth and Fourteenth Amendment wrongful detention under
42 U.S.C. § 1983 against all defendants;
Claim 4: Fourteenth Amendment due process violation under 42 U.S.C.
§ 1983 against all defendants;
Claim 5: Fourth and Fourteenth Amendment failure to train under 42
U.S.C. § 1983 against the City;
Claim 6: malicious prosecution under Ohio law against all defendants
[and against the individual defendants in their official and personal
capacities];
Claim 7: false arrest under Ohio law against all defendants, except
Kubas and Santiago [and against the individual defendants in their
official and personal capacities];
Claim 8: false imprisonment under Ohio law against all defendants
[and against the individual defendants in their official and personal
capacities];
Claim 9: intimidation (using materially false or fraudulent writings to
attempt to influence public servants) under R.C. 2921.03 [(A) and (C)
(against all defendants, and against the individual defendants in their
official and personal capacities]; and
Claim 10: civil liability for criminal acts under R.C. 2307.60[(A)(1)
against all defendants, and against the individual defendants in their
official and personal capacities].
White, No. l:17-cv-1165 J.E. at 16.
{¶ 21} Appellants removed the action to federal court and filed for
summary judgment on May 4, 2020. White also filed a motion for partial summary
judgment seeking summary judgment on the question of liability on Claims 9 and
10 against Kubas and Santiago in their personal and official capacities. White v. City
of Cleveland, N.D. Ohio No. 1:17-CV-01165, 2020 U.S. Dist. LEXIS 241429, at *25-
26 (Dec. 23, 2020).
{¶ 22} After the close of discovery, the federal district court granted
summary judgment for defendants on White’s federal claims under 42 U.S.C. 1983.
However, the court specifically declined supplemental jurisdiction over the state
claims (Claims 6-10), explaining that the state courts were better suited to decide
them. The court also denied White’s motion for partial summary judgment on his
claims for intimidation (R.C. 2921.03) and civil liability for criminal acts (R.C.
2307.60), without considering the merits of the claims. The district court noted that
it denied White’s motion for partial summary judgment “without prejudice to any
right White may have to refile his motion upon remand to state court.” The court
specified its reasoning for the denial of Claims 9 and 10 was because the court
declined to exercise jurisdiction over White’s state law claims, not based on the
merits of the claims.
{¶ 23} In January 2021, the state court received the remanded matter.
White moved for reconsideration of the federal court’s decision, but the trial court
denied White’s motion, finding that it lacked authority to review the district court’s
ruling. In September 2022, the City, the Officers, and Det. Lam separately moved
for summary judgment that the trial court denied. The City appealed on February
14, 2023 (Case No. 12408), the Officers appealed on February 14, 2023 (Case No.
112413), and Det. Lam appealed on February 15, 2023 (Case No. 12415). The cases
were consolidated on appeal raising the following assignments of error.
Assignments of Error
1. The trial court erred by denying the City immunity under the Political
Subdivision Tort Liability Act, R.C. 2744.02.
2. This court lacks jurisdiction to review the federal court’s December
23, 2020, summary-judgment decision on White’s federal claims.
3. The trial court erred by denying the Officers and Det. Lam immunity
under R.C. 2744.03(A)(6)(b) on White’s malicious prosecution, false
arrest, and false imprisonment claims (Claims 6, 7, and 8).
4. The trial court erred by denying the Officers and Det. Lam immunity
under R.C. 2744.03(A)(6)(c) on White’s intimidation and civil-liability
claims (Claims 9 and 10).
5. The trial court erred when it failed to grant a stay during Det. Lam’s
deployment, under the Servicemembers Civil Relief Act, 50 U.S.C.
3932. Lam concedes this assignment of error is moot.
Jurisdiction
{¶ 24} Generally, an order denying a motion for summary judgment is not a
final, appealable order. Hubbell v. Xenia, 2007-Ohio-4839, ¶ 9. However, an order
that denies a political subdivision the benefit of immunity is a final appealable order
under R.C. 2744.02(C). Id. at ¶ 27. Upon review, the appellate court is limited to a
review of the trial court’s order that denied the benefit of political immunity.
Reinhold v. Univ. Hts., 2014-Ohio-1837, ¶ 21 (8th Dist.), citing Riscatti v. Prime
Properties Ltd. Partnership, 2013-Ohio-4530, ¶ 20. Therefore, our review will be
limited to a review of the orders that denied appellants the benefit of political
immunity.
Standard of Review
{¶ 25} Summary judgment rulings are reviewed de novo under Civ.R.
56(C). Heba El Attar v. Marine Towers E. Condominium Owners’ Assn. 2023-
Ohio-2581, ¶ 10 (8th Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,
105 (1996). Summary judgment is appropriate if the moving party demonstrates (1)
there are no genuine issues of material fact, (2) it is entitled to judgment as a matter
of law, and (3) reasonable minds, viewing the evidence most favorably to the
nonmoving party, can reach only one conclusion adverse to that party. Civ.R. 56(C),
Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).
{¶ 26} The moving party bears the initial burden of identifying portions of
the record that demonstrate the absence of a genuine issue of material fact. If the
moving party meets that burden, the nonmovant must respond with specific facts
under Civ.R. 56(C) to show a genuine issue remains for trial. If the nonmovant fails
to do so, summary judgment is warranted. Dresher at 294.
Political Subdivision Tort Liability Act Immunity — City
{¶ 27} In its first assignment of error, the City argues the trial court erred
when it denied the City’s motion for summary judgment. Appellants contend the
City is entitled to immunity under the Political Subdivision Tort Liability Act, R.C.
Ch. 2744. Additionally, the City claims White waived objections to its motion for
summary judgment under the Political Subdivision Tort Liability Act because he
failed to raise objections in the trial court.
{¶ 28} The Political Subdivision Tort Liability Act generally immunizes
municipal corporations for governmental or proprietary functions, subject to
limited statutory exceptions. R.C. 2744.02. When a lawsuit is filed against a political
subdivision, the court applies a three-tier analysis to determine whether immunity
applies. Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998). Under R.C. 2744.02(A)(1),
the initial presumption is that the political subdivision is immune from liability, but
that presumption may be rebutted under the second-tier analysis, if one of the
statutory exceptions in R.C. 2744.02(B) applies. Even if an exception applies, the
third tier of the immunity analysis reinstates immunity if the subdivision proves it
is entitled to one of the R.C. 2744.03 defenses. Colbert v. Cleveland, 2003-Ohio-
3319, ¶ 9. The Political Subdivision Tort Liability Act (R.C. 2744.02) grants
municipalities broad immunity for governmental functions, unless specific statutory
exceptions apply. R.C. 2744.02(B) exceptions are for injury, death, or loss to person
or property caused by:
1. Negligent operation of motor vehicles,
2. Negligent performance of proprietary functions,
3. Failure to maintain public roads,
4. Negligence in maintaining government buildings, or
5. Civil liability explicitly imposed by law.
{¶ 29} In the instant case, the City argues that none of the five statutory
exceptions apply and that White failed to object to the City’s claim of immunity
under the Political Subdivision Tort Liability Act before the trial court. Since White’s
claims do not involve motor vehicles, public roads, or government buildings, R.C.
2744.02(B)(2) and (5) provide White’s only possible options to defeat the City’s
immunity defense.
{¶ 30} R.C. 2744.02(B)(2) provides an exception to immunity based on
negligent performance of proprietary functions. Here, White alleges that the City’s
liability lies with its supervision and training of officers. He also claims that the
City’s policies and procedures permit officers to obtain arrest warrants based on
fraudulent affidavits and ignore exculpatory evidence. White’s claims against the
City concern police department operations, which are governmental functions. E.g.,
Friga v. E. Cleveland, 2007-Ohio-1716, ¶ 9 (8th Dist.). White argues that the City’s
actions were both negligent and intentional. Regardless, R.C. 2744.02(B)(2) is not
applicable to negligent performance of governmental functions nor may it be used
to preclude immunity for intentional torts. E.g., M.H. v. Cuyahoga Falls, 2012-
Ohio-5336, ¶ 4 (R.C. 2744.02(A)(1) generally confers immunity from liability for
injury caused by a political subdivision’s acts and omissions “in connection with a
governmental or proprietary function”.) See also Harris v. Sutton, 2009-Ohio-
4033, ¶ 15 (8th Dist.) (Ohio courts consistently have held that political subdivisions
are immune from intentional tort claims). Therefore, absent an exception under
R.C. 2744.02(B)(5), the City is entitled to immunity.
{¶ 31} R.C. 2744.02(B)(5) provides an exception to immunity for political
subdivisions when civil liability is explicitly imposed by law for the municipality’s
actions. “Without direct or unmistakable terms imposing civil liability upon the city,
R.C. 2744.02(B)(5) does not apply.” Swanson v. Cleveland, 2008-Ohio-1254 ¶ 23
(8th Dist.). White offers no statute that explicitly imposes civil liability on the City.
Accordingly, the City is entitled to statutory immunity on White’s state-law claims.
{¶ 32} The trial court erred by denying the City’s motion for summary
judgment on those claims. We sustain the City’s first assignment of error.
Review of Federal Court’s Order Granting Summary Judgment
{¶ 33} The City asserts in its second assignment of error that this court lacks
jurisdiction to review the federal court’s December 23, 2020 summary judgment
decision on White’s federal claims. After remand, White filed a motion in the trial
court asking for reconsideration of the federal court’s order granting summary
judgment in favor of appellants under 42 U.S.C. 1983. The trial court held that it
lacked jurisdiction to do so. The federal court remanded only the state-law claims,
and White failed to appeal the federal decision to the Sixth Circuit. It is undisputed
that Ohio appellate courts cannot review decisions of federal courts. Ford Motor
Credit Co., L.L.C. v. Collins, 2014-Ohio-5152, ¶ 17 (8th Dist.).
{¶ 34} White’s avenue to challenge the federal court’s dismissal of his federal
claims was to appeal to the United States Sixth Circuit Court of Appeals, pursuant
to the Federal Rules of Appellate Procedure and 28 U.S.C. 1291, or request
reconsideration in federal, not state court. Furthermore, the trial court properly
recognized that it lacked jurisdiction to review a final federal court judgment. More
importantly, White contends he does not seek review of the federal district court’s
order. To that end, a review of the district court’s finding of probable cause to
initially arrest White is not properly before this court and will not be addressed.
{¶ 35} Appellant’s second assignment of error is disregarded.
ANITA LASTER MAYS, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
Part II
SEAN C. GALLAGHER, J., MAJORITY OPINION:
{¶ 36} I fully concur with the lead opinion’s conclusion as to the City of
Cleveland’s entitlement to statutory immunity. Notwithstanding, I respectfully
disagree with the dissent’s analysis concerning the trial court’s decision denying the
individual defendant police officers and detectives the benefits of immunity
conferred under R.C. 2744.03(A)(6).
{¶ 37} The dissent imputes the conduct of the different political subdivision
employees to each other, for example, concluding that the allegations against Kubas
and Santiago are sufficient to warrant finding an exception to immunity as to the
other officers. This conclusion directly conflicts with established authority that each
officer is only potentially liable for their own acts or omissions, not those committed
by others. Morrison v. Horseshoe Casino, 2020-Ohio-4131, ¶ 75 (8th Dist.), citing
Estate of Graves v. City of Circleville, 2008-Ohio-6052, ¶ 29-35 (4th Dist.). White
must demonstrate that each individual employee’s act or omission meets the
R.C. 2744.03(A)(6)(b) standard in order to demonstrate that an exception to
immunity exists for that individual employee. He cannot lump everyone together.
{¶ 38} In addition, the dissent concludes that we are bound by the findings
of the federal court but then claims that for the purposes of the state claims of
malicious prosecution, false arrest and imprisonment, intimidation and civil liability
for criminal acts, which largely focus on the probable-cause determination, there are
issues of fact. However, the federal court unambiguously concluded that there was
probable cause to arrest and detain White. As another panel from this district has
concluded, because there was probable cause for the arrest and detention, White
cannot demonstrate the exception to immunity under R.C. 2744.03(A)(6)(b).
Morrison at ¶ 83.
{¶ 39} On this point, the dissent attempts to distinguish the federal court’s
probable-cause determination claiming that the federal court did not determine
whether probable cause existed to continue White’s prosecution after the bindover
hearing. None of the officers’ or detectives’ alleged acts or omissions occurred after
the bindover hearing, a fact of consequence to the state immunity claims and one
expressly considered by the federal court. White v. Cleveland, 2020 U.S. Dist.
LEXIS 241429, *69 (N.D.Ohio, Dec. 23, 2020) (concluding that none of the officers’
or detectives’ individual actions related to the continued detention and prosecution
following the bindover hearing). Any decision to continue the prosecution following
the bindover hearing solely rested with the prosecutor, who at that time was aware
of the alleged conduct of the defendants.
{¶ 40} White has presented no evidence demonstrating that each individual
defendant’s acts or omissions were with “malicious purpose, in bad faith, or in a
wanton or reckless manner.” Id. It should be noted, however, that although the
parties extensively litigated the 42 U.S.C. 1983 claims in federal court, none of the
federal court filings or evidence filed therein were introduced in the lower court’s
record on remand. The only evidentiary material included in the record is a short
transcript of C.A.’s deposition attached to the parties’ respective motions. White
exclusively cites documents ostensibly filed in the federal-court proceedings, but
those filings have not been preserved in the record of this appeal. See, e.g., State v.
Johnson, 2016-Ohio-4888, ¶ 5 (2d Dist.) (noting that a transcript from federal
proceedings must be introduced in the trial-court record to preserve for appellate
review). Thus, our factual review is limited to the federal court’s recitation of the
evidence.
{¶ 41} White argues that the exception to immunity under subsection
(A)(6)(b) applies, but he does so by framing his argument on questions of fact
pertaining to the merits of his claims of malicious prosecution, false arrest and
imprisonment, intimidation and civil liability for criminal acts. This, however, is an
interlocutory appeal under R.C. 2744.01 in which the trial court denied the political
subdivision’s employees the benefits of immunity. The sole issue is whether the
political subdivision and its employees are entitled to immunity under the statutory
framework. Accordingly, and after concluding that the city is immune as a matter
of law, we must determine “whether, based on the evidence in the record, reasonable
minds could conclude that [the individual employee of the political subdivision]
acted ‘with malicious purpose, in bad faith, or in a wanton or reckless manner’ so as
to preclude immunity” being applied to that individual. Argabrite v. Neer, 2016-
Ohio-8374, ¶ 15, quoting R.C. 2744.03(A)(6)(b). This exception to immunity
employs “rigorous standards that will in most circumstances be difficult to
establish[.]” Argabrite at ¶ 8.
{¶ 42} As to this standard, White’s sole argument is based on the lack of
probable cause to arrest or detain White. According to White, malice under R.C.
2744.03(A)(6) “may be inferred from proof of lack of probable cause[.]” Lorenzo v.
Akron, 2002-Ohio-7318, ¶ 17 (9th Dist.). This argument necessarily focuses on
collateral estoppel and the scope of the federal court’s conclusion that the officers
and detectives had probable cause to arrest and detain White for prosecution. See
Ferrante v. Peters, 2008-Ohio-3799 (8th Dist.) (concluding that collateral estoppel
precluded the state court from relitigating issues resolved by the federal court on
remand). Because collateral estoppel precludes further review of the probable-cause
determination by the trial court, White is required to demonstrate that the officers
each individually acted with a malicious purpose, in bad faith, or in a wanton and
reckless manner to injure White despite having sufficient probable cause to arrest
and detain him.
{¶ 43} Only the officers who participated in White’s arrest and detention,
however, can be held liable for those acts. Each political subdivision employee’s
conduct is separately analyzed when determining whether immunity under
R.C. 2744.03(A)(6)(b) applies. Morrison, 2020-Ohio-4131, at ¶ 75 (8th Dist.), citing
Estate of Graves, 2008-Ohio-6052, ¶ 29-35 (4th Dist.).
{¶ 44} As the federal court expressly concluded, Schade and Beveridge did
not participate in the arrest, detention, or prosecution of White: “Neither Schade
nor Beveridge participated further in the investigation of White, the creation of the
photo arrays at issue, the applications for arrest and search warrants, or the actual
arrest of White.” White, 2020 U.S. Dist. LEXIS 241429, at *36 (N.D. Ohio Dec. 23,
2020). Further, White has not presented any evidence in this record demonstrating
that Schade or Beveridge committed any acts or omissions resulting in White’s
detention or prosecution, much less those that would satisfy the R.C.
2744.03(A)(6)(b) standard. Id. at *71-72. Simply conveying information to others
based on their beliefs as to what occurred in other cases is not a sufficient basis to
jump to the conclusion that they acted with malice, in bad faith, or in a reckless or
wanton manner.
{¶ 45} As a result, White has failed to demonstrate an exception to individual
immunity afforded to those two political subdivision employees. They are entitled
to immunity as a matter of law, and the trial court erred in concluding otherwise.
{¶ 46} Kubas and Santiago were blind administrators of the disputed photo
array that included Bunch instead of White. Being described by all parties as “blind
administrators” necessarily means they were tasked with conducting the lineup with
no knowledge of the identity of the suspect. See R.C. 2933.83(A)(2) (“‘blind
administrator’ means the administrator does not know the identity of the suspect”);
White, 2020 U.S. Dist. LEXIS 241429 at *17 (concluding that Kubas and Santiago
were “blind administrators” of the disputed photo array). White has not contested
the fact of consequence that both Kubas and Santiago were “blind administrators”
as statutorily defined. He also has cited no evidence demonstrating any knowledge
on their part as to specifics of the case.
{¶ 47} Even if we assumed that they indeed instructed the witnesses to not
circle the photograph of Bunch based on some confusion, that confusion does not
rise to the rigorous standards under R.C. 2744.03(A)(6)(b) for the purpose of
breaching the immunity afforded to the political subdivision employees. It might be
disputed evidence of negligence, but nothing more. Both Kubas and Santiago are
entitled to immunity in light of the lack of evidence demonstrating that their acts
were committed with malicious purpose, in bad faith, or in a reckless or wanton
manner.
{¶ 48} This leaves Lam and Shoulders. White claims that there are issues of
fact as to Lam and Shoulders’ liability because there are questions regarding
“whether Lam and Shoulders knew the statements supporting their arrest warrant
were false.” Appellee Brief at p. 34. For the purposes of Civ.R. 56, it is not enough
to rest on mere allegations. “‘Mere speculation and unsupported conclusory
assertions are not sufficient’ to meet the nonmovant’s reciprocal burden under
Civ.R. 56(E) to withstand summary judgment.” Wilmington Trust N.A. v.
Boydston, 2017-Ohio-5816, ¶ 31 (8th Dist.), quoting Loveday v. Essential Heating
Cooling & Refrigeration, Inc., 2008-Ohio-4756, ¶ 9 (4th Dist.). White is required
to produce evidence that Lam and Shoulders individually knew the statements
supporting the arrest warrant were false at the time they submitted the affidavit to
the court. Instead of focusing on their individual conduct, White lumps all the
employees’ acts and omissions under the umbrella of the “the City’s attempt to hide
a certain police report” or that Lam and Shoulders could be found liable based on
the alleged conduct of Kubas and Santiago. Appellee Brief at p. 34-35; but see
Morrison, 2020-Ohio-4131, at ¶ 75.
{¶ 49} Although in general, “issues regarding malice, bad faith, and wanton
or reckless behavior are questions presented to the jury[,] . . . where the record lacks
evidence demonstrating that the political subdivision employee acted in such a
manner,” summary judgment in favor of the individual employee is appropriate. Id.
at ¶ 80, citing Schoenfield v. Navarre, 2005-Ohio-6407 (6th Dist.). As a panel from
this court has concluded, finding that officers acted with sufficient probable cause
in the arrest, detention, and prosecution of a defendant impacts the R.C.
2744.03(A)(6)(b) determination. Id. at ¶ 83. After concluding that the 42 U.S.C.
1983 claims raised by the plaintiff were not viable based on the undisputed fact that
the individual officers had probable cause to arrest, detain, and seek to prosecute
the plaintiff, the Morrison Court applied that conclusion to determine that the
finding of sufficient probable cause demonstrated that the officers were separately
immune under R.C. 2744.03(A)(6)(b). Id.; see also Thompson v. City of Lyndhurst,
2019-Ohio-3277, ¶ 47 (8th Dist.) (concluding that there was no evidence of malice,
bad faith, or wanton or reckless misconduct for the purposes of R.C.
2744.03(A)(6)(b) because there was probable cause for the arrest, detention, and
issuance of an indictment); Wiggins v. Kumpf, 2015-Ohio-201, ¶ 20 (2d Dist.)
(concluding that the exception to immunity under R.C. 2744.03(A)(6)(b) was
inapplicable based on the fact that the officer had probable cause to arrest the
plaintiff).
{¶ 50} Because the federal court in this case found probable cause to support
the arrest, detention, and initial prosecution of White, it must likewise be concluded
that White is unable to demonstrate any issues of material fact as to whether Lam
or Shoulders acted with malice, bad faith, or in a wanton or reckless manner.
Morrison at ¶ 83. Accordingly, the trial court erred in denying them the benefits of
immunity under R.C. 2744.03(A)(6).
{¶ 51} For these reasons, I concur in part with the lead opinion. I agree that
the city is entitled to immunity as a matter of law and join that portion of the opinion,
but the trial court’s decision as to the individual employees is reversed. The city and
its employees are entitled to immunity because White failed to demonstrate the
applicability of R.C. 2744.03(A)(6)(b) and the trial court should have entered
judgment in their favor on all claims.
Conclusion
{¶ 52} The City’s first assignment of error is sustained. We reverse the trial
court’s denial of political-subdivision immunity for the City. The City is entitled to
summary judgment on White’s state-law claims.
{¶ 53} We overrule the City’s second assignment of error to the extent that it
seeks a jurisdictional finding not before the court.
{¶ 54} Appellants’ third assignment of error is sustained. We reverse the trial
court’s denial of employee immunity for the Officers and Det. Lam on White’s claims
for malicious prosecution, false arrest, and false imprisonment. (Claims 6, 7, and
8.) The majority of the court concludes that the City and the officers have immunity.
{¶ 55} Appellants’ fourth assignment of error is sustained. We reverse the
trial court’s denial of summary judgment on Claims 9 and 10, intimidation under
R.C. 2921.03 and civil liability under R.C. 2307.60.
{¶ 56} Appellants’ fifth assignment of error is moot. This matter is
remanded to the trial court for further proceedings consistent with this opinion.
It is ordered that appellee and appellants split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
___________________________
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., CONCURS;
ANITA LASTER MAYS, J., DISSENTS IN PART (WITH SEPARATE OPINION)
ANITA LASTER MAYS, J., DISSENTING IN PART:
{¶ 57} I fully concur with the lead opinion’s conclusion as to the City of
Cleveland’s entitlement to statutory immunity. Notwithstanding, I respectfully
disagree with the portion reversing the trial court’s decision granting the individual
defendant police officers and detectives the benefits of immunity conferred under
R.C. 2744.03(A)(6).
The Officers and Det. Lam
{¶ 58} The Officers and Det. Lam argue that the trial court erred by denying
their claims of individual immunity under R.C. 2744.03(A)(6)(b) and (c). At the
core of their argument is that the federal court’s findings — when it granted
summary judgment for the City on White’s claims under 42 U.S.C. 1983 for
malicious prosecution, false arrest, and false imprisonment — preclude the trial
court from determining whether genuine issues of material fact remain as to White’s
parallel state-law claims for malicious prosecution, false arrest, or false
imprisonment under R.C. 2744.03(A)(6).
{¶ 59} The Officers and Det. Lam argue that the trial court is barred from
considering whether there are genuine issues of material fact concerning a lack of
probable cause in this case. They rely on collateral estoppel (issue preclusion),
which prohibits reexamining an issue that was 1) actually litigated, 2) determined
by a court of competent jurisdiction, and 3) involves the same parties or their privies.
Thompson v. Wing, 70 Ohio St.3d 176, 183 (1994). Collateral estoppel can only
preclude the trial court from considering whether genuine issues of material fact
remain if appellants can prove the exact probable-cause issues were litigated or
determined by the district court. State ex rel. Davis v. Pub. Emps. Retirement Bd.,
2008-Ohio-6254, ¶ 28. Appellants have failed to prove the district court found
probable cause for White’s continued prosecution after his bindover hearing.
{¶ 60} The court acknowledged probable-cause issues were relevant at two
points in White’s prosecution: (1) White’s initial arrest and (2) after the victims
allegedly identified Bunch. The court analyzed White’s malicious prosecution
claims in light of two points in time in which appellants’ actions may have affected
White’s prosecution. However, the district court made no probable-cause
determinations relating to White’s continued detention and prosecution once
exculpatory evidence implicated Bunch as the shooter. The gravamen of a malicious
prosecution offense is continued detention without probable cause. Tlapanco v.
Elges, 969 F.3d 638, 654 (6th Cir. 2020), fn. 3, accord Gregory v. Louisville, 444
F.3d 725, 747, 750 (6th Cir. 2006).
{¶ 61} To prevail on a malicious prosecution claim where prosecution
continued without probable cause, White must prove malice in continuing the
prosecution and that the prosecution terminated in his favor. Coleman v.
Beachwood, 2009-Ohio-5560, ¶ 19 (8th Dist.). “In other words, a defendant can
recover for a prosecution that was not malicious at its inception, but only became
malicious later, when it continued without probable cause.” Selective Ins. Co. v. RLI
Ins. Co., 706 Fed.Appx. 260, 266 (6th Cir. 2017). “The key issue is whether there
was probable cause and when any probable cause disappeared.” Id. Here, the
district court specifically limited its probable cause findings to White’s arrest
warrant stating:
Even if the Court assumes these false statements and omissions were
made deliberately and knowingly or with a reckless disregard for the
truth and assesses the warrant application as if it had excluded the false
statements and included the information omitted-taking into account
that several of White’s blanket statements are not completely accurate,
as discussed below-probable cause still supported the warrant for
White’s arrest.
White, No. l:17-cv-1165 J.E. at 25-26.
{¶ 62} Notably, the court made no determinations regarding whether the
Officers’ or Lam’s actions were malicious, in bad faith, wanton, or reckless. It is well
settled that summary judgment in favor of a political subdivision’s employee is
appropriate only when the facts are clear and fail to rise to the level of conduct that
could be construed as malicious, in bad faith, or wanton and reckless. Pierce v.
Woyma, 2012-Ohio-3947, ¶ 15 (8th Dist.). The Eighth District Court of Appeals
previously addressed this issue in Ferrante v. Peters 2008-Ohio-3799 (8th Dist.).
Officers were accused of excessive force in their handling of a report of a man with a
gun. The plaintiff filed suit with overlapping state and federal claims. Like the
present case, Ferrante was removed to federal district court where the officers
claimed qualified immunity. In Ferrante, district court also granted summary
judgment on the federal claims in favor of the officers and remanded the state claims
back to the state court. The district court specifically determined that the officer’s
actions were neither “malicious” nor “sadistic” and thus, protected from liability on
the federal claims. Upon remand, the officers argued that the state court had to
accept the district court’s findings. On appeal, this court agreed that the district
court’s determination that the officer’s actions were not malicious and were in good
faith were precluded from reexamination by the state court, thus the officers were
entitled to immunity.
{¶ 63} I find no conflict between our holding in Ferrante and our findings
herein. Collateral estoppel precludes the state court from revisiting any issue of fact
or law passed upon and determined by a court of competent jurisdiction. Id. at ¶ 20.
In Ferrante, the district court determined that the officer’s actions were not
malicious and were in good faith.
{¶ 64} In contrast, the district court in this case determined there were
genuine questions of material fact surrounding White’s continued prosecution after
it became clear that there was no longer probable cause to prosecute him. The court
provided:
White has presented sufficient evidence to create a genuine dispute of
fact as to whether Kubas and Santiago deliberately falsified documents
that could foreseeably contribute to a decision to continue to prosecute
White.
White, No. l:17-cv-1165 J.E. at 43.
{¶ 65} In this case, the issue of whether a genuine issue of material fact,
concerning White’s continued prosecution, remains, was passed upon and
determined by the district court. The district court made a legal determination that
a genuine dispute of fact indeed existed, concerning probable cause to continue
prosecuting White. Consequently, collateral estoppel precludes us from revisiting
this issue. Accordingly, I would find that we must accept the district court’s finding
that White offered sufficient evidence of a genuine issue of material fact that would
create an exception to immunity for the officers. As articulated by the district court,
questions of fact are resolved by the trier of fact. Id. at 26.
{¶ 66} Furthermore, in Ferrante, the district court specifically found that the
officers’ actions were not malicious or sadistic and were in good faith. When the
district court’s findings were considered in state court, under R.C. 2744.03(A)(6),
no exceptions to immunity applied. Therefore, summary judgment was proper. On
the other hand, here, the district court did not pass on or determine the character of
the officers’ actions under R.C.2744.03(A)(6) at all. Instead, it granted summary
judgment on other grounds and remanded the matter for the trial court to
determine.
Political-Subdivision-Employee Immunity
{¶ 67} R.C. 2744.03(A)(6) generally immunizes employees of political
subdivisions performing governmental functions, unless: 1) the employee acts
manifestly outside the scope of official responsibilities; 2) the employee acts with
malicious purpose, in bad faith, or in a wanton or reckless manner; or 3) another
Revised Code provision expressly imposes civil liability. Whether an individual
acted manifestly outside the scope of employment, and whether the employee acted
with malicious purpose, in bad faith, or in a wanton or reckless manner generally
are questions of fact. E.g., Clark v. Campbell, 2020-Ohio-3333, ¶ 32 (4th Dist.).
Malicious Prosecution, False Arrest, and False Imprisonment
{¶ 68} White’s overlapping state and federal law claims against the
individual defendants are malicious prosecution, false arrest, and false
imprisonment. The federal malicious prosecution claims were disposed of in
summary judgment by the district court. The elements required to satisfy federal
malicious prosecution claims involving Fourth Amendment rights, pursuant to 42
U.S.C. 1983, are distinguishable from those required to satisfy malicious
prosecution claims under Ohio law.
{¶ 69} Federal malicious prosecution claims require the plaintiff to prove (1)
that a criminal prosecution was initiated against him, (2) that the defendant made,
influenced, or participated in the decision to prosecute, (3) there was a lack of
probable cause for the criminal prosecution, and (4) the plaintiff suffered a
deprivation of liberty because of the legal proceedings. Gregory v. Louisville, 444
F.3d 725, 748-750 (6th Cir. 2006).
{¶ 70} On the other hand, Ohio law requires a plaintiff alleging malicious
prosecution to prove the defendant acted with (1) malice in instituting or continuing
the prosecution, (2) there was a lack of probable cause, and (3) the prosecution
terminated in favor of the accused. Trussell v. Gen. Motors Corp., 53 Ohio St.3d
142, 144 (1990).
{¶ 71} The elements of false arrest and false imprisonment claims are
essentially the same. Both require the (1) intentional detention of a person and (2)
unlawfulness of the detention. Ficklin v. Home Depot U.S.A., Inc., 2010-Ohio-5601,
¶ 34 (8th Dist. 2005). A valid arrest warrant issued by a court is a complete defense
to an action for false arrest or false imprisonment. McFarland v. Shirkey, 106 Ohio
App. 517, 524 (10th Dist. 1958). However, this defense is not available if an officer,
in obtaining the arrest warrant, (1) knowingly and deliberately, or with reckless
disregard for the truth, made false statements or omissions and 2) the false
statements or omissions were material, or necessary, to the finding of probable
cause. E.g., Meekins v. Oberlin, 2019-Ohio-2825, ¶ 49 (8th Dist.).
{¶ 72} During the bindover hearing, the court learned that Officers Kubas
and Santiago were accused of suppressing exculpatory evidence during the photo
array process. Furthermore, witness testimony indicated the witnesses were
instructed not to circle identifications of a suspect other than White. The juvenile
court specifically found no probable cause that White was part of the C.A.’s home
invasion; however, it did not dismiss the case. When the district court analyzed
probable cause for purposes of summary judgment on White’s federal claims, it
found that White had presented sufficient evidence to create a genuine dispute of
fact as to whether Kubas and Santiago deliberately falsified documents that could
foreseeably contribute to a decision to continue to prosecute White. The district
court determined that White’s evidence was clearly sufficient to establish a genuine
issue of material fact regarding whether Kubas and Santiago’s actions were
deliberate.
{¶ 73} Despite these findings, the district court granted summary judgment
in favor of Kubas and Santiago on the federal malicious prosecution claims. The
court explained that White’s malicious prosecution claims against Kubas and
Santiago failed not because there was sufficient probable cause to continue
prosecuting White, but because there was no evidence that Kubas and Santiago’s
alleged actions “actually influenced White’s continued prosecution and detention.”
{¶ 74} State malicious prosecution claims do not require such findings. “[I]n
an action for malicious prosecution, the want of probable cause is the gist of the
action.” E.g., Edvon v. Morales, 2018-Ohio-5171, ¶ 24 (8th Dist.), quoting
Melanowski v. Judy, 102 Ohio St. 153 (1921), paragraph one of the syllabus. “If such
be proven, the legal inference may be drawn that the proceedings were actuated by
malice.” Id. Moreover, concerning Kubas’s and Santiago’s actions, the district court
found that “White’s evidence is clearly sufficient to establish a genuine issue of fact.
And if such exculpatory evidence was withheld, it is foreseeable that it would
influence the decision of whether to prosecute White.” White, No. l:17-cv-1165 J.E.
at 44.
{¶ 75} The district court did not resolve these disputed factual issues. In
support of its decision to deny supplemental jurisdiction, the district court explicitly
recognized the potential for overlap of its probable-cause analysis related to White’s
arrest; not his continued detention. Id. at 54. The court explained that probable-
cause determinations are a mixed question of law and fact. Id. at 26. The court
resolves probable cause questions of law, and the trier of fact resolves issues of
disputed fact that are material to a probable-cause determination. Id.
{¶ 76} In the instant case, the district court found that White had presented
sufficient evidence to create a genuine dispute of a material fact that could have
contributed to a decision to continue prosecuting him. Id. at 43. When disputed
factual issues underlying probable cause exist, the issues must be submitted to a jury
for a determination of the appropriate facts. Morrison v. Horseshoe Casino, 2020-
Ohio-4131, ¶ 50 (8th Dist.), quoting Hale v. Kart, 396 F.3d 721, 728 (6th Cir. 2005.)
At no point in its opinion does the district court make a finding that probable cause
existed to continue White’s prosecution after the bindover hearing. Consequently,
collateral estoppel does not preclude the trial court from submitting to a jury the
genuine issues of material fact underlying White’s claims for malicious prosecution,
false arrest, and false imprisonment against Kubas and Santiago. Therefore, I would
find that the trial court properly denied summary judgment on White’s state-law
malicious prosecution, false arrest, and false imprisonment claims. I would affirm
the trial court’s denial of summary judgment on Claims 6, 7, and 8 against the
Officers and Det. Lam.
Intimidation and Civil Liability for Criminal Acts
{¶ 77} I would also affirm the trial court’s judgment regarding intimidation
and civil liability for criminal acts. White also asserts claims under R.C. 2921.03
(intimidation) and R.C. 2307.60 (civil liability for criminal acts). The Officers and
Lam argue the trial court erred in denying summary judgment because they are
entitled to immunity as employees of a political subdivision, under R.C.
2744.03(A)(6). White alleges that appellants filed materially false or fraudulent
writings (e.g., arrest affidavits, photo-lineup materials) intending to influence or
obstruct justice, thus violating R.C. 2921.03 and 2921.45. White further contends
these violations support a civil remedy under R.C. 2307.60(A)(1). The federal court
expressly declined to address these claims, noting they raised “numerous purely
state law issues” and possible statute-of-limitations questions unique to Ohio law.
{¶ 78} The Officers and Det. Lam argue that White has abandoned these
claims. But the record reflects extensive discovery and briefing. The trial court
concluded there were genuine issues of material fact precluding summary judgment,
and I find no indication that White affirmatively abandoned or conceded those
claims. Furthermore, as previously addressed, the district court made no findings
regarding whether any of the Officers or Lam acted with malicious purpose, in bad
faith, or in a wanton or reckless manner. Because the federal court did not address
these claims, collateral estoppel does not preclude the trial court from determining
that there are genuine issues of material fact for White’s claims of intimidation and
civil liability for criminal-acts claims. Accordingly, the employees’ entitlement to
immunity under R.C. 2744.03(A)(6) is a question for the trier of fact.
{¶ 79} I would affirm the trial court’s judgment denying summary judgment
on Claims 9 and 10, intimidation and civil liability for criminal acts and overrule the
fourth assignment of error.