# Ash v. Phillips

> District Court, S.D. Ohio · May 22, 2025

URL: https://www.frixlaw.com/law-library/cases/11057034

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** May 22, 2025
- **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/11057034

## How later opinions describe it (automated extraction)

- holding a deprivation might have occurred when the individual was detained in jail for hours after posting bond

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RYAN ASH,

Plaintiff,

v. Civil Action 2:24-cv-453
Magistrate Judge Chelsey M. Vascura

SERGEANT ROBERT PHILLIPS, III,
et al.,

Defendants.

OPINION AND ORDER
Plaintiff, Ryan Ash, sues five Newark Police Department officers for violation of his
rights under the Fourth and Fourteenth Amendments and Ohio common law arising from his
arrest in his home. This matter is before the Court on Plaintiff’s Motion to Extend the Case
Schedule (ECF No. 32) and Defendants’ Motion for Summary Judgment (ECF No. 28.) For the
following reasons, Plaintiff’s Motion is DENIED, and Defendants’ Motion is GRANTED IN
PART and DENIED WITHOUT PREJUDICE IN PART.
I. BACKGROUND
The facts are not in dispute and are captured almost entirely by the body-worn camera
footage of Defendant Dustin Hardway. (“Hardway BWC,” ECF No. 27.)
In the early morning of July 22, 2023, Newark police were dispatched to the residence of
Plaintiff Ryan Ash at 46 Arbor Court, Newark, Ohio. Mr. Ash called 911 when non-party Teresa
Bordeaux broke a window and then continued seeking entrance to the residence over Mr. Ash’s
objection. All five Defendants (Sergeant Robert Phillips, III, Officer Dustin Hardway, Officer
Kevin Fairfield, Officer Kevin Distelhorst, and Officer Matthew Peddicord) responded on behalf
of the Newark Police Department. Defendant Hardway was the first to arrive on the scene and
encountered a woman outside the residence, later identified as Teresa Bordeax. As Ms. Bordeux
gestures toward the residence, she can be heard finishing a sentence: “won’t let me in my house,
I’ve been out here freezing…” (Hardway BWC at 5:59:02–08.) She later states, “he has not let

me in for hours. I’m frozen.” (Id. at 6:01:39–43.) Officer Hardway calls out, “does she live
here?” Ms. Bordeaux immediately responds, “yes, I do.” (Id. at 5:59:38–6:00:34.) Mr. Ash
denies that Ms. Bordeaux lives at the residence. Ms. Bordeaux states “I have mail delivered here
for the past year . . . I’ve lived here for two years . . . .” (Id. at 6:00:35–45.) She also states that
the lease to residence in is in the names of both Ms. Bordeaux and Mr. Ash. (Id. at 06:13:20-
06:13:28). Ms. Bordeaux states that “I have to get in. This is where I sleep, where I sleep at
night,” and “he has my purse; I don’t have anything on me.” (Id. at 06:15:35-06:15:15; 6:00:45–
6:01:04.) Ms. Bordeaux states that her key to the residence is in her purse, which Mr. Ash is
holding inside the house. (Id. at 06:10:20–06:10:42.) She also attempts to enter the residence

using a key code for the attached garage, but finds the code pad lacking a functioning battery.
(Id. at 06:11:07-06:11:58.)
During the time the officers are speaking with Ms. Bordeaux, Officer Hardway offers to
let Ms. Bordeaux wait in his police vehicle, and she accepts. (Id. at 6:05:38–58.) The vehicle
remains open for her to wait in throughout the rest of the incident. She also has her phone in her
possession and calls her sister, who stays on the line with her for much of the incident. (Id. at
6:13:18.)
Ms. Bordeaux provides her social security number and birthdate; Officer Hardway
transmits the information to dispatch, who confirms Ms. Bordeaux’s identity. (Id. at 06:01:16–
06:03:18.) Officer Hardway later runs Ms. Bordeaux through the Law Enforcement Automated
Data System (“LEADS”), which shows her address as 46 Arbor Court, Newark, Ohio. (Id. at
06:18:54–06:19:49.)
Ms. Bordeaux states that Mr. Ash physically assaulted her, gesturing to her arm where
she was apparently scratched and bruised. (Id. at 06:10:35–06:11:03.)1 She states that “we got

into a physical altercation as soon as I walked in” and that “he literally forcibly pushed me out of
the house.” (Id. at 06:20:55–59, 6:10:30–34.) When the Sergeant Phillips asks if she wants to
press charges against Mr. Ash for assault, she responds, “I definitely do.” (Id. at 06:21:47–
06:22:01.) Sergeant Phillips asks Ms. Bordeaux, “are you okay with us going inside?” and Ms.
Bordeaux states, “you guys can go inside all you want.” (Id. at 06:21:00–26).
The officers approach the residence and knock on the door. When they receive no
response, they call out to Mr. Ash, demanding that he open the door or else the officers would
break it down. (Id. at 06:22:21–6:28:18.) They repeat this warning several times and eventually
begin using a battering ram to attempt to break down the door. (Id. at 6:28:18.) The officers

continue using the battering ram unsuccessfully for about thirty seconds, at which point Ms.
Bordeaux asks, “Can we—can we just…can we not? Can we not? Can we not? Can we not?” (Id.
at 6:28:52–58.) One of the officers responds, “Ma’am, ma’am, you have asked—you’ve—” to
which Ms. Bordeaux replies “I know.” (Id. at 6:28:59–6:29:03.) The officers then immediately
break the window next to the door and reach inside to turn the deadbolt. (Id. at 6:29:04–21.)
After kicking the door several times to dislodge an object that had been placed against the inside

1 The Court could discern no visible scratches or bruises from Officer Hardway’s body worn
camera footage.
of the door, the officers open the door, enter the residence, and arrest Mr. Ash for assault. (Id. at
6:29:22–6:30:11.)
Mr. Ash was ultimately charged with assault, domestic violence, and obstruction of
justice. He was jailed from July 22, 2023, until July 24, 2023, while awaiting his arraignment.
All charges were dismissed on October 18, 2023, one day before trial was set to begin. (Compl.

¶¶ 16–19, ECF No. 1.) After the charges were dismissed, Mr. Ash submitted an internal
administrative complaint with the City of Newark Police Department regarding Defendants’
actions. In response, Sergeant Phillips arrived at Mr. Ash’s residence and repeatedly banged on
the door to his home at 7 in the morning. Phillips left a note on Mr. Ash’s door stating he was
“[f]ollowing up on a complain[t] filed.” No other actions were taken by the City of Newark or its
Police Department in response to Mr. Ash’s complaint. (Id. at ¶¶ 23–26.)
Mr. Ash’s Complaint names each of the five Defendant officers in both their individual
and official capacities and advances six counts:
(1) Violation of Fourth Amendment Rights under 42 U.S.C. § 1983 against the
individual Defendants and the City of Newark, for entering Mr. Ash’s home and
arresting him without a warrant or probable cause;2
(2) Violation of Fourth and Fourteenth Amendment Rights under 42 U.S.C. § 1983
for malicious prosecution;
(3) Malicious prosecution under Ohio common law;
(4) False arrest under Ohio common law;
(5) Gross negligence under Ohio common law; and
(6) Invasion of privacy under Ohio common law.

2 Mr. Ash’s Complaint captions Count 1 as being brought under both the Fourth and Fourteenth
Amendment; however, the supporting allegations for Count 1 refer only to the Fourth
Amendment, and not to the Fourteenth Amendment (nor to due process or equal protection). The
Court therefore construes Count 1 to be brought under only the Fourth Amendment, despite its
caption.
On March 4, 2025, Defendants filed the subject motion for summary judgment on all claims.
(ECF No. 28.)
II. STANDARD FOR SUMMARY JUDGMENT MOTIONS
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial
burden of proving that no genuine issue of material fact exists, and the court must draw all
reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air
Wisconsin Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf.
Fed. R. Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s
assertion of fact” then the court may “consider the fact undisputed for purposes of the motion”).
The burden then shifts to the nonmoving party to “set forth specific facts showing that
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
“The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn
in his favor.” Id. at 255 (citation omitted). “The nonmovant must, however, do more than simply

show that there is some metaphysical doubt as to the material facts, . . . there must be evidence
upon which a reasonable jury could return a verdict in favor of the non-moving party to create a
genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cty., 432 F. App’x 435, 441 (6th
Cir. 2011) (internal quotation marks and citations omitted); see also Fed. R. Civ. P. 56(c)
(requiring a party maintaining that a fact is genuinely disputed to “cit[e] to particular parts of
materials in the record”). “When a motion for summary judgment is properly made and
supported and the nonmoving party fails to respond with a showing sufficient to establish an
essential element of its case, summary judgment is appropriate.” Stansberry, 651 F.3d at 486
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).
III. ANALYSIS
As an initial matter, Mr. Ash’s memorandum in opposition to Defendants’ Motion for
Summary Judgment includes a request to extend the discovery period. (Mem. in Opp’n, ECF No.
32.) Mr. Ash’s motion to extend the discovery period is DENIED.
A district court must enter a scheduling order limiting the time “to join other parties,

amend the pleadings, complete discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A). When,
as here, a party misses a scheduling order’s deadlines and seeks a modification of those
deadlines, the party must first demonstrate good cause. See Fed. R. Civ. P. 16(b)(4); Andretti v.
Borla Performance Indus., Inc., 426 F.3d 824, 830 (6th Cir. 2005). “The primary measure of
Rule 16’s ‘good cause’ standard is the moving party’s diligence in attempting to meet the case
management order’s requirements.” Inge v. Rock Fin. Corp., 281 F.3d 613, 625 (6th Cir. 2002)
(quotation omitted); accord Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (“[A] court
choosing to modify the schedule upon a showing of good cause, may do so only if it cannot
reasonably be met despite the diligence of the party seeking the extension.” (quotation omitted)).
“Another important consideration . . . is whether the opposing party will suffer prejudice by

virtue of the amendment.” Leary, 349 F.3d at 906 (citing Inge, 281 F.3d at 625).
Mr. Ash has not demonstrated good cause to extend the discovery period. When the
Court granted Mr. Ash’s attorney’s motion to withdraw as counsel on November 13, 2024, the
Court noted that “Mr. McCoy has provided Plaintiff with advance notice of his intent to
withdraw and provided a list of upcoming deadlines for the case. Plaintiff is also free to retain
new counsel or to request extensions of any pending deadlines.” (ECF No. 18.) Yet Mr. Ash
failed to request an extension of the discovery period until responding to Defendants’ Motion for
Summary Judgment on April 8, 2025—more than two months after the discovery deadline. This
delay reflects a lack of diligence. Further, because Defendants had already briefed their Motion
for Summary Judgment by the time of Mr. Ash’s request, they would undoubtedly be prejudiced
if the case schedule were extended at this time. See, e.g., Leary, 349 F.3d at 892 (“Defendant
would suffer prejudice by allowing this amendment which would require the reopening
of discovery at this late stage of the proceedings.”); Sterling Jewelers Inc. v. Alex & Ani, LLC,
No. 5:17-CV-2540, 2019 WL 95842, at *3 (N.D. Ohio Jan. 3, 2019) (“Given that the periods for

non-expert and expert discovery have expired, and the January 15, 2019 dispositive motion
deadline is fast approaching, any extension of the discovery periods would have the cascading
effect of jeopardizing the Court’s remaining dates and deadlines.”).
Because Mr. Ash has demonstrated neither diligence nor lack of prejudice to Defendants
in seeking to extend the discovery period, his motion is DENIED, and the Court proceeds to
consider the parties’ summary judgment arguments.
A. Defendants are entitled to qualified immunity on Mr. Ash’s Fourth Amendment
entry claim.
The Court finds that although Defendants arguably violated Mr. Ash’s Fourth
Amendment rights by entering his residence without a warrant and over his objection, any such
violation was not clearly established and therefore Defendants are entitled to qualified immunity
on Mr. Ash’s Fourth Amendment entry claim.
“Qualified immunity balances two important interests—the need to hold public officials
accountable when they exercise power irresponsibly and the need to shield officials from
harassment, distraction, and liability when they perform their duties reasonably.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). “Under the doctrine of qualified immunity, ‘government
officials performing discretionary functions generally are shielded from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’” Phillips v. Roane Cty., 534 F.3d 531,
538 (6th Cir. 2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The protection of
qualified immunity applies regardless of whether the government official’s error is a mistake of
law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson, 555
U.S. at 231 (cleaned up). The determination of whether a government official is entitled to
qualified immunity involves two inquiries. Miller v. Sanilac County, 606 F.3d 240, 247 (6th Cir.

2010). “First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff shown
that a constitutional violation has occurred? Second, was the right clearly established at the time
of the violation?” Id. (cleaned up). The Court need not consider these inquiries sequentially.
Jones v. Byrnes, 585 F.3d 971, 975 (6th Cir. 2009) (citing Pearson, 555 U.S. at 236).
The Fourth Amendment provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated.” U.S. Const. amend. IV. “That standard generally requires the obtaining of a judicial
warrant before a law enforcement officer can enter a home without permission.” Lange v.
California, 594 U.S. 295, 301 (2021) (cleaned up). This warrant requirement, however, is subject

to various exceptions, including the consent of an individual reasonably appearing to possess
authority to consent. See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). Defendants argue
that Ms. Bordeaux consented to their entry, and that because she possessed authority to do so as
a co-tenant of the residence, their entry did not violate the Fourth Amendment.
There are two problems with this argument. First, Ms. Bordeaux apparently thought
better of her authorization for the police to enter the residence when she shouted, “can we not?”
four times at the officers after they had begun attempting to break down the door. The moment
she changed her mind, her consent was no longer valid to authorize the officers’ entry. See
Painter v. Robertson, 185 F.3d 557, 567 (6th Cir. 1999) (“Although a premises search conducted
pursuant to valid consent cannot violate the Fourth Amendment, the consenting party may limit
the scope of that search, and hence at any moment may retract his consent.”) (citation omitted).
Thus, even though the officers may have lawfully begun their attempts to enter the residence
with Ms. Bordeaux’s permission, those attempts at entry “should have terminated instantly upon
[Ms. Bordeaux’s] revocation of consent, and the officers should have promptly departed the

premises (assuming they possessed no independent legal authority to remain).” Id. Instead, the
officers’ response to Ms. Bordeaux’s request for them to stop (“Ma’am, ma’am, you have
asked—”) was to (1) incorrectly imply that she could not retract her consent because she had
already asked the officers to arrest Mr. Ash for assault, and (2) immediately breach the door.
Thus, Defendants exceeded the scope of Ms. Bordeaux’s consent and any entry relying solely on
her consent would be unlawful.
Second, even if Ms. Bordeaux had not withdrawn her consent, the United States Supreme
Court in Georgia v. Randolph set forth the general rule that the consent of one co-tenant does not
override the objection of a present and non-consenting co-tenant to the police’s entry. 547 U.S.

103, 122–23 (2006) (“[A] physically present inhabitant’s express refusal of consent to a police
search is dispositive as to him, regardless of the consent of a fellow occupant.”). There is no
question that Mr. Ash was present and expressly refused to allow the police to enter when he
ignored their repeated requests to open the door. Thus, under no circumstances would Ms.
Bordeaux’s consent alone have allowed the police to enter the residence.
Defendants make yet another argument that their entry was lawful, relying on another
section of the Randolph opinion. In dicta, the Randolph majority responded to the dissents’
arguments that the majority’s holding would leave domestic violence victims unprotected in the
likely event that their abusers refused entry to the police. The Randolph majority disclaimed any
such danger, as “this case has no bearing on the capacity of the police to protect domestic
victims.” 547 U.S. at 118. The majority explained that police would still be permitted to enter
over the objection of a co-tenant if necessary to ensure another co-tenant’s safety:
No question has been raised, or reasonably could be, about the authority of the
police to enter a dwelling to protect a resident from domestic violence; so long as
they have good reason to believe such a threat exists, it would be silly to suggest
that the police would commit a tort by entering, say, to give a complaining tenant
the opportunity to collect belongings and get out safely, or to determine whether
violence (or threat of violence) has just occurred or is about to (or soon will) occur,
however much a spouse or other co-tenant objected. (And since the police would
then be lawfully in the premises, there is no question that they could seize any
evidence in plain view or take further action supported by any consequent probable
cause, see Texas v. Brown, 460 U.S. 730, 737–739, 103 S.Ct. 1535, 75 L.Ed.2d 502
(1983) (plurality opinion).) Thus, the question whether the police might lawfully
enter over objection in order to provide any protection that might be reasonable is
easily answered yes. See 4 LaFave § 8.3(d), at 161 (“[E]ven when . . . two persons
quite clearly have equal rights in the place, as where two individuals are sharing an
apartment on an equal basis, there may nonetheless sometimes exist a basis for
giving greater recognition to the interests of one over the other . . . . [W]here the
defendant has victimized the third-party . . . the emergency nature of the situation
is such that the third-party consent should validate a warrantless search despite
defendant’s objections” (internal quotation marks omitted; third omission in
original)). The undoubted right of the police to enter in order to protect a victim,
however, has nothing to do with the question in this case, whether a search with the
consent of one co-tenant is good against another, standing at the door and expressly
refusing consent.
Id. at 118–19.
Defendants contend that this discussion in Randolph legitimizes their entry into the Arbor
Court residence because Ms. Bordeaux complained that she had been physically injured by Mr.
Ash, with whom she lived—i.e., she was a victim of domestic violence—and that her purse and
keys were being kept from her inside the house by her abuser. But it is not at all clear that
Randolph authorizes police entry for the sole purpose of permitting a domestic violence victim,
who is otherwise safely away from her abuser and not in danger of any imminent harm, to
merely collect belongings. Rather, the throughline of the Randolph dicta is the importance of
ensuring the victim’s physical safety. See id. at 118 (citing a treatise relying on “the emergency
nature of the situation” to permit police entry). It appears that the Randolph majority was merely
referencing that other well-established exception to the Fourth Amendment’s warrant
requirement: exigent circumstances. See, e.g., Caniglia v. Strom, 593 U.S. 194, 198 (2021) (“We
have also held that law enforcement officers may enter private property without a warrant when
certain exigent circumstances exist, including the need to render emergency assistance to an

injured occupant or to protect an occupant from imminent injury.”) (cleaned up); see also Tobias
v. Pletzke, 933 F. Supp. 2d 892, 911–12 (E.D. Mich. 2013) (“Randolph does not establish a new
categorical rule that police may always ignore the refusal to enter if made by a suspected
physical abuser”) (cleaned up); rather, “the necessary predicate—the exigency—is ‘good reason
to believe . . . a threat exists’”) (quoting Randolph at 118)); United States v. Tatman, 615 F.
Supp. 2d 664, 679 (S.D. Ohio 2008), aff’d, 397 F. App’x 152 (6th Cir. 2010) (rejecting
application of any Randolph “domestic violence exception” because “[i]n this case, Taresa
Tatman, the alleged victim, was in no immediate danger. In fact, she was safely outside the
house with two police officers. Under these circumstances, no exigent circumstances exist and a

warrantless entry is simply not justified.”)
Even Randolph’s express reference to collecting belongings is coupled with an
endorsement of police involvement to allow the victim to “get out safely,” which was not a
concern for Ms. Bordeaux at the time the Defendants arrived on the scene. By the time of
Defendants’ entry in the house, Ms. Bordeaux had been outside the residence for hours with no
attempts by Mr. Ash to engage with her physically outside the house. It does not appear from the
body worn camera footage that she was suffering from any significant injuries. She was seated
safely in a police vehicle and was speaking on her phone (which remained in her possession
throughout the incident) intermittently with her sister. The Court is not convinced that Ms.
Bordeaux’s need to collect her purse and keys constituted exigent circumstances that would
justify police entry without a warrant or the consent of all present co-tenants under the Randolph
dicta.
But the Court need not ultimately decide whether the police violated Mr. Ash’s Fourth
Amendment rights by entering his residence, because the Randolph dicta is not so definitively

worded as to make any such violation “clearly established” for the purposes of the qualified
immunity analysis. Although the Court has its doubts that collection of a domestic violence
victim’s belongings alone justifies an otherwise unauthorized police entry, the Randolph dicta at
least suggest this as a possibility. See Spurlock v. Satterfield, 167 F.3d 995, 1006 (6th Cir. 1999)
(“To be clearly established, the contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.”) (cleaned up); Vanderhoef v.
Dixon, 938 F.3d 271, 278 (6th Cir. 2019) (a clearly established violation may be demonstrated
by “caselaw with a fact pattern similar enough to have given fair and clear warning to officers
about what the law requires”) (cleaned up). Here, even if a constitutional violation occurred, the

Court concludes that it the violation was not clearly established. As a result, Defendants are
entitled to qualified immunity on Mr. Ash’s Fourth Amendment entry claim.
B. Defendants are entitled to qualified immunity on Mr. Ash’s Fourth Amendment
arrest claim.
Although Randolph is not crystal clear on what circumstances justify entering a residence
to protect domestic violence victims, Randolph expressly states that, assuming police have
lawfully entered, “there is no question that they could seize any evidence in plain view or take
further action supported by any consequent probable cause.” 547 U.S. at 118. Thus, assuming
Defendants lawfully entered the Arbor Court residence, they could also lawfully arrest Mr. Ash
if they had probable cause to do so.
Mr. Ash asserts that his arrest was not supported by probable cause. He contends that
Defendants’ factual summary omits that the police were in fact called to the Arbor Court
residence twice on the morning of July 22, 2023. The call resulting in Mr. Ash’s arrest was the
second call. Newark police (including two of the Defendants) responded to the residence earlier
in the night at Ms. Bordeaux’s request, but she did not on that first occasion tell the officers that

Mr. Ash had assaulted her. The officers concluded at that time that it was merely a civil matter
that police could not assist with. It was only after Mr. Ash became verbally combative with the
officers during the second visit that they decided to treat it as a domestic violence case. Mr. Ash
also told the officers at the time that Ms. Bordeaux was on probation from a felony conviction in
Florida, weakening her claim that she lived at the residence in Ohio. Mr. Ash also contends that
Ms. Bordeaux was brought to the residence that morning by Heath police following a separate
physical altercation with another individual and that her scratches and bruises therefore did not
constitute probable cause to arrest Mr. Ash for assault.
None of these additional facts changes the Fourth Amendment or qualified immunity

calculus. First, Mr. Ash has not submitted an affidavit or declaration or identified other parts of
the record that support his additional factual contentions, such that they are not properly
considered in opposition to summary judgment. See Fed. R. Civ. P. 56(c) (requiring a party to
support its factual contentions by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials”); Celotex, 477 U.S. at 324 (Rule 56 “requires the nonmoving party to go beyond
the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is a genuine issue for trial.”)
(cleaned up).
But even if the Court were to consider these unsupported factual contentions, the
outcome would be the same. The officers’ probable cause determination was necessarily based
on “acts and circumstances within an officer’s knowledge at the time of an arrest.” Thacker v.

City of Columbus, 328 F.3d 244, 255 (6th Cir. 2003) (emphasis in original). Thus, it makes sense
that Defendants did not pursue assault charges during their first visit when Ms. Bordeaux had not
yet informed them of the alleged assault. And Ms. Bordeaux’s felony probation in Florida did
not require the officers to overlook the LEADS records indicating Ms. Bordeaux lived at the
Arbor Court residence.
Indeed, Ms. Bordeaux’s “confession that [Mr. Ash] had abused her alone is sufficient to
establish probable cause” for domestic violence and assault charges. See Thacker v. City of
Columbus, 328 F.3d 244, 257 (6th Cir. 2003). Given Ms. Bordeaux’s statements to Defendants
that “we got into a physical altercation as soon as I walked in” and that “he literally forcibly

pushed me out of the house,” and given Ms. Bordeaux’s scratches and bruises that were visible
to the officers, Defendants had probable cause to arrest Mr. Ash for domestic violence and
assault. Thus, because Defendants were not clearly on notice that their entry was unlawful, and
because the subsequent arrest was supported by probable cause, Defendants are entitled to
qualified immunity on Mr. Ash’s Fourth Amendment arrest claim.
C. Defendants are entitled to summary judgment on Mr. Ash’s federal malicious
prosecution claim.
To succeed on a malicious-prosecution claim under § 1983 when the claim is premised
on a violation of the Fourth Amendment, the plaintiff must prove (1) “that a criminal prosecution
was initiated against the plaintiff and that the defendant made, influenced, or participated in the
decision to prosecute”; (2) “that there was a lack of probable cause for the criminal prosecution”;
(3) “that, as a consequence of a legal proceeding, the plaintiff suffered a deprivation of liberty, as
understood in our Fourth Amendment jurisprudence, apart from the initial seizure”; and (4) “the
criminal proceeding must have been resolved in the plaintiff's favor.” Sykes v. Anderson, 625
F.3d 294, 308–09 (6th Cir. 2010) (cleaned up).

Defendants contend that Mr. Ash cannot satisfy the third element, deprivation of liberty
apart from the initial seizure, because he was detained only through his arraignment. The Court
agrees. See Wright v. City of Euclid, 962 F.3d 852, 876–77 (6th Cir. 2020) (holding a deprivation
might have occurred when the individual was detained in jail for hours after posting bond);
Miller v. Maddox, 866 F.3d 386, 393 (6th Cir. 2017) (deprivation possibly occurred when
defendant entered pretrial release program, had to pay fines, and was required to meet with case
manager weekly); Noonan v. County of Oakland, 683 F. App’x 455, 463 (6th Cir. 2017)
(summons to attend court is not a deprivation); Cummin v. North, 731 F. App’x 465, 470–73 (6th
Cir. 2018) (no deprivation when defendant had to post bond, attend court five times, and

maintain his current address, but faced no subsequent arrests or incarceration).
Moreover, Mr. Ash has offered no Rule 56 evidence to rebut Defendants’ assertions that
he was detained following the initial arrest. See Moldowan v. City of Warren, 578 F.3d 351, 374
(6th Cir. 2009) (when moving party has demonstrated the absence of evidence to support the
non-moving party’s case, non-moving party may not rest on its allegations to defeat summary
judgment). Because Defendants have demonstrated the absence of evidence to support Mr. Ash’s
Fourth Amendment malicious prosecution claim, Defendants are entitled to summary judgment
on this claim.
To the extent Mr. Ash also alleges that his prosecution violated the due process clause of
the Fourteenth Amendment, that claim also fails. Supreme Court precedent holds that malicious
prosecution cannot be pursued under the substantive due process clause of the Fourteenth
Amendment. Albright v. Oliver, 510 U.S. 266 (1994). And to the extent Mr. Ash relies on the
procedural due process clause, such a claim would be barred by the availability of state-law tort

remedies under Parratt v. Taylor, 451 U.S. 527, 535–44 (1981). See Albright, 510 U.S. at 285
(Kennedy, J., concurring). Indeed, Mr. Ash has separately asserted a state-law malicious
prosecution claim in Count 3. Mr. Ash may not, therefore, pursue a malicious prosecution claim
based on the procedural due process clause of the Fourteenth Amendment under § 1983.
D. Defendants are entitled to summary judgment on Mr. Ash’s Monell claim.
Mr. Ash asserts that the City of Newark3 is liable for Defendants’ Fourth Amendment
violations under the doctrine of Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). “[A]
local government may not be sued under § 1983 for an injury inflicted solely by its employees or
agents. Instead, it is when execution of a government’s policy or custom . . . inflicts the injury
that the government as an entity is responsible under § 1983.” Monell v. Dep't of Soc. Servs., 436

U.S. 658, 694 (1978); Nichols v. Wayne Cty. Mich., 822 F. App’x 445, 448 (6th Cir. 2020) (“To
state a municipal-liability claim under § 1983, the plaintiff must allege the deprivation (1) of a
right secured by the Constitution or laws of the United States, (2) that was directly caused by a
municipal policy or custom.”) (citing Hardrick v. City of Detroit, 876 F.3d 238, 243 (6th Cir.
2017)). A plaintiff may prove an unconstitutional “policy” or “custom” by demonstrating
“(1) the existence of an illegal official policy or legislative enactment; (2) that an official with

3 Although Mr. Ash did not name the City of Newark as a Defendant, his Complaint sues the five
Defendant officers in both their individual and official capacities. Mr. Ash’s official-capacity
claims are, in essence, claims against the municipality employing the Defendants. See Kentucky
v. Graham, 473 U.S. 159, 166 (1985).
final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate
training or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal
rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Thomas v. City
of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).
Because the Court has determined there was no constitutional violation in regard to Mr.

Ash’s malicious prosecution claim, there cannot have been any constitutional violation as a result
of the City of Newark’s customs or policies. But the Court has not determined that there was no
constitutional violation as to the entry into Mr. Ash’s home or his arrest. Instead, judgment for
Defendants on those claims relies on qualified immunity. But qualified immunity is not an
available defense to a suit against a municipality or a suit against municipal officials in their
official capacity. United Pet Supply, Inc. v. City of Chattanooga, Tenn., 768 F.3d 464, 484 (6th
Cir. 2014). Thus, although the Defendants are entitled to qualified immunity on Mr. Ash’s
individual-capacity Fourth Amendment entry and arrest claims, the City of Newark may
nonetheless be liable if Mr. Ash is able to establish that Defendants violated his constitutional

rights as a result of a policy or custom of the City of Newark.
But, as Defendants point out, Mr. Ash established no such policy or custom. Although the
Complaint alleges that the City failed to act or acknowledge its employees’ wrongdoing after Mr.
Ash complained, thus ratifying Defendants’ unconstitutional acts, Mr. Ash does not allege that
any official with final decision making authority made that ratification. Nor has he made any
factual contentions underlying his conclusory Complaint allegation that the City failed to train its
officers. Nor, in any case, has Mr. Ash submitted any evidence that the Court may consider
under Federal Rule of Civil Procedure 56 to rebut Defendants’ arguments on summary judgment.
See Moldowan, 578 F.3d at 374. Defendants are therefore entitled to summary judgment on Mr.
Ash’s Monell claims.
E. Because the Defendants are entitled to judgment on all of Mr. Ash’s federal claims,
the state-law claims are dismissed without prejudice under 28 U.S.C. § 1367.
Under 28 U.S.C. § 1367(c)(3), the Court may decline to exercise supplemental
jurisdiction when the Court “has dismissed all claims over which it has original jurisdiction.”
The United States Court of Appeals for the Sixth Circuit has held that “[i]f the federal claims are
dismissed before trial, the state claims generally should be dismissed as well.” Brooks v. Rothe,
577 F.3d 701, 709 (6th Cir. 2009) (citations omitted). Here, the Court has found for Defendants
on all of Mr. Ash’s federal claims and the Court lacks original jurisdiction over Mr. Ash’s
remaining state-law claims for malicious prosecution, false arrest, gross negligence, and invasion

of privacy. Accordingly, dismissal of Mr. Ash’s remaining claims without prejudice to re-filing
in state court is appropriate. See Thacker, 328 F.3d at 260 (although district court considered
malicious prosecution and false arrest claims under Ohio law after granting summary judgment
to defendants on related federal claims, “it would have been appropriate to refuse to exercise
pendent jurisdiction and to dismiss these claims without prejudice to being re-filed in the courts
of the State of Ohio”).
IV. DISPOSITION
For the reasons above, Plaintiff’s Motion to Extend the Discovery Period (ECF No. 32) is
DENIED. Defendants’ Motion for Summary Judgment is GRANTED IN PART and DENIED
WITHOUT PREJUDICE IN PART. The Clerk is DIRECTED to enter judgment in favor of

Defendants on Counts 1 and 2 of Plaintiff’s Complaint. Counts 3–6 of Plaintiff’s Complaint are
DISMISSED WITHOUT PREJUDICE to re-filing in state court, where Defendants may
renew their summary judgment arguments as to those counts. The Clerk is DIRECTED to close
this case.

IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11057034. Public record. Not legal advice.