# Bender v. Village of Mariemont

> District Court, S.D. Ohio · June 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11082197

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 23, 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/11082197

## How later opinions describe it (automated extraction)

- discussing seizure of the person, not of property
- explaining that an instance of voidable self-dealing could only be set aside on application by a trust beneficiary, and that absent such an application, the transaction would stand

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARY ANN BENDER,

Plaintiff,
Case No. 1:23-cv-51
v.
JUDGE DOUGLAS R. COLE
VILLAGE OF MARIEMONT, et al.,

Defendants.

OPINION AND ORDER
The Fourth Amendment to the United States Constitution prohibits the
government from unreasonably interfering with property rights. Plaintiff Mary Ann
Bender alleges that Defendants Nicholas Pittsley, Paul Rennie, Richard Hines, and
the Village of Mariemont (the City Defendants) violated that guarantee by removing
her from a property in which she had legal title as trustee. And she says that removal
was based on nothing more than a trust beneficiary’s unverified allegation that she
lacked a possessory interest. The City Defendants contend that her constitutional
claim fails as a matter of law. In their Motion for Summary Judgment (Doc. 35), they
argue that Bender fails to identify any record facts that would: (1) overcome
Defendants Pittsley’s and Rennie’s qualified immunity defense, and (2) allow a jury
to find Defendant Hines or the municipality itself liable under Monell v. Dep’t of Soc.
Servs. of City of New York, 436 U.S. 658 (1978). (See generally id.). For the reasons
described below, the Court disagrees with the former but agrees with the latter, and
accordingly GRANTS IN PART and DENIES IN PART the City Defendants’
Motion (Doc. 35).

BACKGROUND1
Where there’s a will, there’s a way. But what if there are two competing wills,
and also a living-trust agreement, and a variety of affidavits to boot? Then things can
get messy. Here, Defendant Kevin Surette (a trust beneficiary and one of the
Defendants in this case) allegedly used at least one of those documents (no one can
recall exactly which one) to conscript a posse consisting of two Mariemont police
officials, Defendants Nicholas Pittsley and Paul Rennie (the Officers), in a quest to

remove the trustee, Plaintiff Mary Ann Bender, from residential property that the
trust owns for the benefit of others (including Surette). That removal, which is the
centerpiece of this lawsuit, did not go smoothly—but more on that later.

1 In recounting a case’s factual background on a motion for summary judgment, the Court
normally relies on the parties’ stipulated undisputed facts, submitted as part of their briefing
as directed by Standing Order I.F.2, available at https://perma.cc/S2YS-S7ZP. There’s a
wrinkle in that scheme here, since the City Defendants filed their motion before the case was
transferred to this Court—that is, before this Court’s Standing Orders came to govern the
proceedings. Because of that, they didn’t include a proposed list of stipulated undisputed
facts. Plaintiff laudably strove to make the best of a difficult situation by taking each sentence
of the Defendants’ motion’s factual-background section as though it were a proposed
undisputed fact and responding with admission or denial based on the record. (See Doc. 42-
1, #1255–65). Because the Court finds it fair to presume—and because the City Defendants
didn’t discuss the matter further in their Reply, (Doc. 44)—that the City Defendants would
prefer to have their recounting of the facts treated as though it were undisputed, it treats
Bender’s admissions to those facts as establishing a conclusive set of undisputed facts for the
purposes of resolving this motion. Where possible, the Court relies on that set of undisputed
facts. But given that set’s sparsity, the Court will frequently resort to the record itself, and
clearly indicate when its discussion turns to disputed facts.
Before getting into the hotly disputed facts surrounding the incident at issue,
it’s helpful to understand the broader context in which they arose. Rita Cole2 (who
passed away in April of 2022) owned a condominium in Mariemont, Ohio, at 3809

Petoskey Avenue (the condo). (See Doc. 35, #925 (describing the “Mariemont
condominium”); Doc. 42, #1238 (describing the “Condominium … located at 3809
Petoskey Avenue”)). But Cole didn’t reside there continuously. Starting from some
unspecified date and continuing through 2017, she lived under a guardianship in a
Rhode Island nursing home. (Doc. 42-1, #1256; see also Bender Depo., Doc. 27, #308).
That arrangement worried Mary Ann Bender—who describes herself as Cole’s “best
friend for over 20 years.” (Doc. 27, #306). Bender testified that she wasn’t alone in

her misgivings, and that Cole’s sister asked her to intervene in the guardianship to
safeguard Cole’s wellbeing and prevent suspected abuse. (Id. at #308). So Bender did
just that; specifically, she brought Cole home to Mariemont. (Doc. 42-1, #1256).
All agree that, upon Cole’s return to Mariemont in 2017, Bender became Cole’s
caregiver. (Id.). But they dispute the precise nature of that relationship. Bender’s
testimony paints a picture of a tightly knit duo. She testified that she “move[d] into”

the condo. (Doc. 27, #311). She and Cole would spend some days at Bender’s own
home, but they’d “always spen[d] the nights” at the condo. (Id.). The City Defendants
paint a different picture, alleging that Mary Ann only “occasionally stay[ed] with Rita
Cole during a period of caregiving.” (Doc. 35, #925). They emphasize that Bender

2 Just to avoid any confusion on the issue, Rita Cole is not related in any way to the
undersigned.
actually “resides at 530 Terrace Avenue”—which is her own home. (Doc. 42-1, #1255).
Bender admits that she “currently” lives there, but denies that she “has lived there
continuously” since she purchased the property in 1996. (Id.). Particularly relevant

here, she emphasizes that she “resided at” the condo while caring for Cole. (Id.). In
brief, the parties agree that Bender cared for Cole in her final years, and that the two
spent much of their time together. But they dispute the extent to which Bender
resided with Cole at the condo—Bender says she resided there nightly, while the City
Defendants allege that she stayed over only occasionally, maintaining her primary
residence elsewhere.
Regardless of whose account better reflects the truth of Bender’s watch over

Cole’s health, that role ended when the latter passed away on April 8, 2022. (Id. at
#1257). At that point, two documents kicked in to govern the distribution of Cole’s
belongings: (1) the Rita M. Cole Living Trust Agreement and its amendments (the
Trust), (Bender Decl., Doc. 41-11, #1163–78); and (2) the Last Will and Testament
executed in 20213 (the 2021 Will), (id. at #1189–91). (Doc. 42-1, #1257). The latter
makes no mention of either Bender, Surette, or the condo. (See Doc. 41-11, #1189–

91). The former names Bender as successor trustee in case Rita’s brother opted not
to take the job. (Doc. 42-1, #1258). All agree that Bender ultimately received the office.
(Id.). The Trust also names Surette as a trust beneficiary. (Id. at #1257). And by a

3 The 2021 Will superseded an earlier will executed in 2015 (the 2015 Will), (Doc. 41-11
#1179–87), notable only because the 2015 Will named Defendant Kevin Surette as a
beneficiary, while the 2021 Will did not. (Compare Doc. 41-11, #1180 (including Kevin
Surette) with id. at #1189 (omitting Kevin Surette)).
later document, Cole guaranteed that ownership of the condo would vest in the Trust
upon her death. (See Doc. 41-11, #1177).
Cole’s estate plan set the stage for a tale as old as time: a feud over her assets.

But this is no ordinary inheritance impasse, where one might encounter a long-lost
cousin claiming to possess the authoritative will, a surprise bequest to a hotel
concierge, or some other such thing. See The Grand Budapest Hotel (Fox Searchlight
Pictures 2014). Instead, this spat arose when Surette (Cole’s nephew and one of the
Trust’s beneficiaries) allegedly received a tip that Bender was mismanaging the
condo in her capacity as trustee. (See Surette Depo., Doc. 33, #723). On the morning
of May 6, 2022, Surette’s cousins called him to report Bender’s continued presence at

the condo, where she was allegedly “taking property” and “destroying documents.”
(Doc. 33, #723, 748). After completing the call with his cousins, Surette decided to
take action—he made his way to the Mariemont Police Department’s offices. (Id. at
#723).
That’s where the story gets murky. The record reflects three distinct tellings:
Surette’s, Bender’s, and the City Defendants’ (which really boils down to the two City

Defendants on the scene: Officers Pittsley and Renie). The Court will synthesize the
three into one narrative, with care to emphasize where the accounts materially differ.
At the police station, Surette showed the police officers some kind of “estate
document.” (See Doc. 42, #1241; Doc. 42-1, #1260). But no one knows exactly which
document. At his deposition, Surette couldn’t match any of the estate documents
described above to the one he says he took to the police station. (See Doc. 33, #702–
07). Neither could the Officers. (See Pittsley Depo., Doc. 31, #556 (Officer Pittsley
testifying that Kevin presented “a [w]ill” without further detail; Rennie Depo., Doc.
32, #634 (Officer Rennie testifying the same)). It’s also unclear what, exactly, Surette

asked the Officers to do based on the mystery estate document. In Surette’s own
telling, his purpose was narrow: he only wanted the Officers to accompany him to the
condo and keep the peace while he checked what Bender was up to. The City
Defendants adopt that view in their motion. (See Doc. 35, #927 (citing Doc. 33, #723)).
But the Officers’ deposition testimony meaningfully differs from that account: they
both testified that Surette asked for help removing Bender from the property, not just
keeping the peace while Surette investigated the state of affairs. (Doc. 31, #561

(Officer Pittsley testifying that Surette “said [Bender] was living in his dead aunt’s
condo and … he wanted her out”); Doc. 32, #640 (Officer Rennie testifying the same)).
That wrinkle tends to agree with Bender’s description of Surette’s mission: to evict
her. (Doc. 42-1, #1264). Along those lines, too, it’s at least clear what Surette’s
document wasn’t: a court-issued eviction order. (See Doc. 33, #724 (Surette testifying
that he “did not file any eviction” action)).

Whatever the details surrounding the troupe’s origins and purpose, its three
members made their way from the police station to the condo that same morning.
(Doc. 42-1, #1261). Once there, the Officers positioned themselves at the condo’s front
door. (Id.). Surette knocked, then stood behind them. (Id.). Bender answered, (id.)—
and that’s where the parties’ stories diverge once more. Bender testified that Surette
declared that he “ha[d] the only true will,” after which the trio muscled their way into
the condo. (Id. at #1261, 1264). She “asked the Officers why they were [there] on four
separate occasions” and “demanded to see a warrant for their entry.” (Id. at #1264–
65). Defendants recall things differently. According to Surette, Bender “invit[ed] [him

and the Officers] into the [condo’s] foyer.” (Doc. 33, #765). And while Officer Pittsley
concedes that Bender didn’t “formally invit[e]” them in, he testified that “the
conversation” that started at the doorway “just kind of progressed into the condo”
without protest from Bender. (Doc. 31, #582).
About an hour elapsed between when Surette and the Officers entered the
condo and when they left. (Doc. 42-1, #1262). But only the final few minutes of that
hour are relevant to this motion. The Officers both testify that they eventually tired

of standing sentinel over the squabble between Surette and Bender and left, as they
had “other runs and things to do.” (Doc. 31, #595; see also Doc. 32, #654). Their last
act before leaving was to issue a disorderly conduct citation to Bender for allegedly
throwing a phone at Surette. (Doc. 32, #648–49). But, again, Bender tells a different
story. Her narrative sounds less like a (relatively) uneventful departure and more
like a forced removal. She testified that the Officers asked Surette “when did you

want [Bender] out of here, Kevin? And Kevin said, [‘]today.[’]” (Doc. 27, #379).
Following that directive, Bender maintains the Officers “forced [Bender] from the
residence” and “push[ed] [her] along” to leave within ten minutes (though Bender
admits she couldn’t recall whether she’d actually been touched by one of the Officers).
(Id. at #383–85). One of the officers told her “at least ten times” that she was “going
to jail.” (Id. at #387). And that wasn’t an empty threat—by the time Bender left the
condo, she’d been cited for disorderly conduct. (Id. at #393–94). Ultimately, the
Officers “took the key” to the condo and “threw [Bender] out.” (Id. at #407). So,
crucially, under the City Defendants’ version of events, they did nothing to interfere

with Bender’s physical presence in the condo, but Bender testifies to just the opposite.
(See Doc. 42-1, #1262–63). Of course, which of those stories is true, if that matters,
would be for a jury to decide.
Based on her version of the above events, Bender sued Surette, the Officers,
Mariemont Chief of Police Richard Hines, and the Village of Mariemont. (Compl.,
Doc. 1). Only one of her Complaint’s claims—brought under 42 U.S.C. § 1983 against
only the City Defendants—is relevant here.4 (Doc. 1, #5–6). That claim breaks down

into two components, each applying to a different subset of the City Defendants. First,
Bender alleges that the two Officers directly violated her Fourth Amendment rights
by forcibly removing her from Cole’s condo. (See Resp. to Mot. for Summ. J., Doc. 42,
#1243–47). And second, she alleges that Chief Richard Hines (who was not there) and
the Village itself violated her rights by failing to properly train the Officers or by
ratifying their conduct. (See id. at #1247–53).

4 Separate from her claim against the City Defendants, Bender also advances a state-law
claim against Surette for trespass. (Doc. 1, #6). But Surette isn’t moving for summary
judgment here, so the Court need not address that claim.
Aside from the trespass claim, Bender’s Complaint also separately requests declaratory
judgment “finding that the [City Defendants] acted unlawfully.” (Doc. 1, #7). That request,
though styled as a third and separate “claim,” is better understood as a prayer for a specific
type of relief if her substantive claim under § 1983 succeeds. See, e.g., Duncan v. Tennessee
Valley Authority Retirement Sys., 123 F. Supp. 3d 972, 982 (M.D. Tenn. 2015) (“Declaratory
judgment … is not a cause of action, but a specific type of relief.”). Unlike the trespass claim,
though, Bender’s request for declaratory relief against the City Defendants is at issue here
(because it relates to the § 1983 claim) and will be discussed below.
The City Defendants move for summary judgment on both components of the
§ 1983 claim. (Doc. 35). Their arguments are twofold. First, Officers Rennie and
Pittsley claim they are entitled to qualified immunity for their actions at the condo.

Second, Chief Richard Hines and the Village of Mariemont claim there is no record
evidence on which a jury could hold them liable either for failing to train the Officers
in proper eviction procedures or for ratifying the Officers’ conduct. (See generally id.).
Bender responded, (Doc. 42), and the City Defendants replied, (Doc. 45). So, the
matter is now ripe for the Court’s review.

LEGAL STANDARD
Summary judgment is appropriate when the moving party shows that (1) there
is no genuine dispute as to any material fact, and (2) they are entitled to judgment as
a matter of law. Fed. R. Civ. P. 56(a). The first part of the summary judgment
standard focuses on the factual record: the movant bears the burden of pointing to
specific evidence in the record to show the absence of a genuine dispute of material
fact (or, if it is an issue on which the non-movant bears the burden at trial, the lack

of any evidence that would allow the non-movant to meet that burden). Celotex Corp.
v. Catrett, 477 U.S. 317, 322–23 (1986). The second part of the standard requires the
movant to show that the facts (or lack of facts) identified at the first step entitles the
movant to judgment as a matter of law. See id. at 323. In measuring the movant’s
arguments against that standard, “the Court must view the evidence in the light most
favorable to the non-moving party.” Saint Vil v. Blue Ash Healthcare, LLC, No. 1:23-
cv-85, 2024 WL 3373312, at *3 (S.D. Ohio July 9, 2024) (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). But if the movant carries its
burden, then summary judgment is appropriate unless the nonmovant can “present
some sufficient disagreement” through citations to facts in the record “that would

warrant submitting the dispute to a jury.” Id. (cleaned up).
Here’s how that plays out in this case: because the non-movant (Plaintiff Mary
Ann Bender) bears the burden of proving her claims at trial, the movants (the City
Defendants) can prevail by showing that she lacks evidence to support an essential
element of each claim on which they seek summary judgment. Still, the non-movant
can take her case to a jury if she can point to evidence in the record sufficient to create
a genuine dispute about whether she can support her claims. If the facts, viewed in

the light most favorable to the non-movant, evince such a dispute, the Court must
forward the dispute to a factfinder. But if not, the movant is entitled to summary
judgment.
LAW AND ANALYSIS
The City Defendants move for summary judgment on Bender’s § 1983 claim.

As noted, that claim subdivides into two parts, each applying to a different subset of
the City Defendants: (1) the Officers’ alleged direct violation of Bender’s Fourth
Amendment rights; and (2) Chief Hines’ and the Village’s potential liability
predicated on either their failure to properly train the Officers or their ratification of
the Officers’ conduct. The Court addresses both in turn, as well as some of the City
Defendants’ other outlying arguments about available remedies.
A. The Evidence Reveals Genuine Issues of Material Fact Sufficient to
Overcome the Officers’ Qualified Immunity.
The City Defendants argue that the Officers are entitled to qualified immunity
as to Bender’s § 1983 claim for violating her Fourth Amendment rights.5 (Doc. 35,
#63). “The affirmative defense of qualified immunity shields government officials
performing discretionary functions 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.” Cochran v. Gilliam, 656 F.3d 300, 306 (6th
Cir. 2011) (cleaned up). So the Court must determine whether the record exhibits a
genuine issue of material fact as to (1) whether the Officers in fact violated her Fourth
Amendment rights, and (2) whether those rights were “clearly established” such that
any reasonable official in the Officers’ position would’ve known that their conduct
was unlawful. Freeman v. Spoljaric, 667 F.Supp.3d 636, 649 (S.D. Ohio 2023). The
Court is free to address those two inquiries in either order. See Pearson v. Callahan,

555 U.S. 223, 236 (2009). But here the Court proceeds in the order listed above.
1. The Facts, Viewed in the Light Most Favorable to Bender, Show
That the Officers Violated Her Fourth Amendment Rights.
The Fourth Amendment protects “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures[.]”

5 Curiously, the City Defendants also insist that Bender failed to identify any “particular
constitutional amendments … to support a federal cause of action.” (Doc. 35, #933; Doc. 44,
#1277–78). That can’t be right. The very first filing in this case—Bender’s Complaint—
dedicates an entire paragraph to identifying a constitutional amendment underpinning the
§ 1983 claim. (Doc. 1, #5 (discussing, by name, the “Fourth Amendment of the United States
Constitution”)).
U.S. Const. amend. IV. That right erects two shields: one protects privacy interests,
and the other property interests. Soldal v. Cook Cnty., Ill., 506 U.S. 56, 62–63 (1992)
(citing United States v. Jacobsen, 466 U.S. 109, 113, 120 (1984)). Bender relies on the

latter in her claim against the City Defendants in this case.6 (See Doc. 1, #5–6 (raising
allegations based on Bender’s possessory interest in the condo)). Specifically, she
claims that the City Defendants unreasonably seized “her” property (i.e., property in
which she had a valid possessory interest). (See id. at #6).
The Fourth Amendment’s protections against property seizure arise only
“when there is some meaningful interference with an individual’s possessory
interests in that property.” Cochran, 656 F.3d at 307 (quoting Jacobsen, 466 U.S. at

113). To rise to the level of a constitutional violation, the interference must be
“unreasonable[].” Soldal, 506 U.S. at 71. In other words, the right doesn’t protect any
old property from any old interference. Rather, the property must be, in some sense,
under the claimant’s dominion. And, as described, the interference must be both
meaningful and unreasonable. The Court addresses both of those requirements in
turn.

6 The City Defendants attempt to breach a Fourth Amendment shield Bender never raised:
that which protects privacy, as opposed to property, interests. (Doc. 35, #938–39). But Bender
never invokes the Fourth Amendment’s privacy dimension. So the Court won’t join the City
Defendants in barking up the wrong tree; the Court instead focuses its analysis on the Fourth
Amendment’s property protections.
a. As Trustee, Bender Was Vested With Legal Title Over
the Condo, Bestowing on Her a Possessory Interest.
The Fourth Amendment guarantees the “right of the people to be secure in
their … houses.” U.S. Const. amend. IV (emphasis added). In other words, the
Amendment’s protections come into play only if Bender can show she had dominion
over the condo. Stated differently, did she have the right to reside there?
Here, the answer to that question turns on Ohio trust law. Recall that Rita

Cole conveyed the condo to the Trust upon her death. (Doc. 41-11, #1177–78). And
even though that Trust named another person as trustee upon Rita’s death, the
parties all agree that the originally nominated individual’s refusal to serve resulted
in Bender assuming that role. (See Doc. 42-1, #1258). As a result, under Ohio trust
law, Bender (as trustee) became vested with legal title to the condo (while the Trust
beneficiaries retained beneficial title). Gilman v. Hamilton Cnty. Bd. of Revision, 937
N.E.2d 109, 114 (Ohio 2010) (“[U]nder a trust arrangement the legal and equitable

estates are divided, [with] the legal title held by a trustee[.]”).
But the parties dispute what possessory rights Bender’s designation as trustee
conferred upon her. Bender claims that, “by the explicit language of the Trust, [she]
had the power to ‘exercise all such rights and privileges as could be done, taken, or
exercised by an owner of the Trust property.’” (Doc. 42, #1244 (quoting Doc. 41-11,
#1166)). That power “inherently includes the ability to occupy” the property. (Id.).

Though the City Defendants don’t dispute the Trust language, they emphasize that
Bender “was not a beneficiary to the trust, she was not a leaseholder, and she had
her own [separate] residence.” (Doc. 35, #935). Neither party’s argument leads
inevitably to the conclusion that Bender did or didn’t have a right to occupy the condo.
Bender’s legal claim that the Trust language “inherently” entitled her to occupy the
condo is conclusory, while the City Defendants offer no legal support for their

interpretation whatsoever, conclusory or otherwise.
Because neither party cites any legal authority to support its position, the
Court resorts to trust law’s first principles as to the scope of a trustee’s rights over
trust property. To start with, “[i]t is well established that so long as a trustee executes
the trust in good faith … a court [] will not interfere with that discretion or undertake
to substitute its discretion therefor.” Biddulph v. Delorenzo, 2004-Ohio-4502 ¶ 27 (8th
Dist.) (cleaned up). That is especially true where the trust instrument vests the

trustee with broad powers, as it does here. See id. At that same time, broad trust
language doesn’t vest a trustee with unlimited license to do as she pleases with trust
property. “[I]n addition to the instrument creating the trust, the authority of a trustee
is limited by statutory and common law.” Id. An Ohio court canvassing those
limitations as applied to a similarly broad trust provision (one that allowed the
trustee to transact trust property unilaterally and without judicial review) pointed to

the Ohio Trust Code, Ohio Rev. Code §§ 5801–11. See Alotech Ltd. L.L.C. v. Barnes,
2017-Ohio-5569 ¶ 23 (8th Dist.). Among other things, that statute prohibits trustees
from using trust property for their own benefit. See Ohio Rev. Code § 5808.02(A).
Transactions of trust property sullied by the trustee’s personal interests are “voidable
by a beneficiary,” subject to some carveouts. Id. § 5808.02(B). One of those is
potentially critical here: a self-interested transaction by a trustee is not voidable if it
was “authorized by the terms of the trust.” Id. § 5808.02(B)(1).
Summed up, Ohio law generally accepts as binding the terms of a trust

agreement vesting the trustee with broad powers. But statutory and common-law
requirements still limit the trustee’s discretion in important ways. One statutory
limitation prohibits self-dealing. But the same statutory provision imposing that
limitation expressly exempts self-deals “authorized by the terms of the trust.” Id.
Stated differently, a trustee’s statutory duties in cases of self-dealing are superseded
by express trust terms authorizing such behavior—that is, the trust document’s
provisions reign supreme.

Here, Bender’s residing in the condo after Cole’s death could perhaps be
understood as her undertaking an unwritten lease agreement with herself, serving
as both lessor (in her capacity as trustee) and lessee (in her personal capacity). As a
general matter, that would constitute self-dealing by a trustee. And that, in turn,
may make her interest “voidable” under Ohio law. Id. § 5808.02(B).7
But that highlights a problem for Defendants’ argument that Bender lacked a

valid possessory interest. Namely, there is an important distinction between “void”
and “voidable.” When an interest is void, it is as though it never arose in the first

7 That being said, the Trust document explicitly vested Bender with the power to “exercise
all such rights and privileges as could be done, taken, or exercised by an owner of the Trust
property.” (Doc. 41-11, #1166). And the same statute that makes self-interested transactions
voidable carves out any “transaction that was authorized by the terms of the trust.” Ohio
Rev. Code. § 5808.02(B)(1). So it’s at least arguable that, as a threshold matter, the
prohibition against self-dealing didn’t even apply to Bender’s self-lease. But in light of the
discussion following this footnote, the Court need not reach that argument here.
instance. But when an interest is voidable, that means that, upon proper application,
a court can void it. See Cleveland Trust Co. v. Eaton, 256 N.E.2d 198, 207–08 (Ohio
1970) (explaining that an instance of voidable self-dealing could only be set aside on

application by a trust beneficiary, and that absent such an application, the
transaction would stand). Here no such application was made. So even if Bender’s
conduct wasn’t authorized by the Trust’s terms, the trust beneficiaries’ inaction left
the condo as “hers,” at least to the extent necessary to satisfy the Fourth
Amendment’s threshold requirement that it shields the right guaranteed to the
people “to be secure in their … houses.” U.S. Const. amend. IV (emphasis added).

b. The Officers’ Rousting of Bender From Her Property
Unreasonably Interfered With Her Possessory Interest
in the Condo.
Having established that the condo “belonged” to Bender in the constitutionally
relevant sense, the question then becomes whether there remains a genuine dispute
of material fact as to whether the Officers unreasonably seized the condo. Here,
because the facts, taken in the light most favorable to Bender, would allow a jury to
conclude that the Officers participated in the eviction and acted objectively
unreasonably in doing so, the Court answers that question in the affirmative.
As the Supreme Court explains, “[a] ‘seizure’ of property … occurs when ‘there
is some meaningful interference with an individual’s possessory interests in that
property.’” Soldal, 506 U.S. at 61 (quoting Jacobsen, 466 U.S. at 113). That said, not
all seizures offend the Constitution—to violate the Fourth Amendment, a seizure
must be objectively unreasonable, and it must constitute state action. See id. at 61,
71 (citation omitted). That is, private evictions do not count for Fourth Amendment
purposes. But unsurprisingly, “eviction[s] by the police” count as seizures. Id. at 69.
So the question now before the Court is whether a reasonable jury could conclude

that this eviction (1) constituted state action that (2) was “unreasonable” within the
meaning of the Fourth Amendment.
Start with the state action inquiry. The Sixth Circuit has noted more than once
that “a police officer’s presence during a repossession solely to keep the peace … is
alone insufficient to convert the repossession into state action.” Middaugh v. City of
Three Rivers, 684 F. App’x 522, 527 (6th Cir. 2017) (quoting Hensley v. Gassman, 693
F.3d 681, 689 (6th Cir. 2012)). But “[o]fficers ‘cross the line’ into state action when

they ‘take an active role in a seizure or eviction.’” Id. (quoting Cochran, 656 F.3d at
310). On Bender’s telling, the Defendants crossed that line here. According to her,
Officers Rennie and Pittsley: (1) asked Surette when he wanted Bender out of the
condo; (2) “forced” her out when Surette answered “today”; (3) and threatened her “at
least ten times” with jail time if she didn’t comply. (Doc. 27, #379, 383–85, 387). In
short, if jurors believe Bender’s account, they could reasonably infer that this eviction

counted as state action for Fourth Amendment purposes.
That leaves reasonableness. On that front, a Sixth Circuit case applying the
reasonableness standard to similar—though far less plaintiff-friendly—facts is
instructive. In Cochran v. Gilliam, the court faced a situation where two landlords,
armed with a valid judgment of eviction, enlisted local police officers to keep the peace
during the execution of that eviction. 656 F.3d at 302–05. The issue in that case
wasn’t the plaintiff’s dispossession from the premises—he’d been lawfully evicted by
court order—but rather the dispossession of his personal property during the eviction.
Id. at 306–07. Because the eviction judgment made no mention of the tenant’s

personal property, the Sixth Circuit held that it was “not reasonable for the [officers]
to oversee and personally assist [in the seizure] when there was no apparent legal
basis for such action.” Id. at 309.
If the Cochran defendants’ conduct was objectively unreasonable, so was the
Officers’ here, at least if, as Bender claims, they “threw [Bender] out of the condo”
based solely on their own review of the trust materials. (Doc. 27, #407). Indeed, the
Cochran defendants’ actions were far less troublesome than Bender’s account of the

Officers’ actions here, yet they still failed to pass constitutional muster. Those
defendants were prompted to act by a facially valid judgment of eviction. In
evaluating their authority to act under that judgment, they closely read its terms,
noting that it didn’t explicitly mention whether the tenant’s personal property was
subject to seizure. Cochran, 656 F.3d at 308. The Officers here made no such inquiry,
admitting to giving Surette’s purported “estate documents” at best a cursory review.

(Doc. 31, #568–70; Doc. 32, #634). Moreover, the Cochran defendants took the further
step of conferring with an attorney to confirm their authority to seize the tenant’s
personal property—and even that step wasn’t enough to make their actions
reasonable. Cochran, 656 F.3d at 308–09. Here, neither Officer made any further
inquiry into the authority—or lack thereof—that Surette’s documents conferred. (See
Doc. 31, #568–70; Doc. 32, #634). So if the Cochran defendants’ actions didn’t pass
muster under the Fourth Amendment’s “reasonableness” standard, the Officers’
actions here, under Bender’s version, do not either.
The City Defendants resist that conclusion by citing to inapposite caselaw. The

bulk of their citations are to cases about Fourth Amendment guarantees not even
implicated here: Couzens v. City of Forest Park, 114 F.4th 571 (6th Cir. 2024)
(discussing seizure of the person, not of property); Heien v. North Carolina, 574 U.S.
54 (2014) (same); Youkhanna v. Sterling Heights, 934 F.3d 508 (6th Cir. 2019) (same).
And in the one case they cite that talks about the right law, the most plaintiff-friendly
reading of the facts (which is the only version that matters at summary judgment)
showed that the government official simply “observe[d] and monitor[ed] a peaceful

statutory repossession.” Haverstick Enters., Inc. v. Fin. Fed. Credit, Inc., 32 F.3d 989,
995 (6th Cir. 1994). The most plaintiff-friendly reading of the facts in this case, by
contrast, shows the opposite: that the Officers “threw [Bender] out of the condo.” (Doc.
27, #407).
In sum, this Circuit’s caselaw firmly classifies the Officers’ conduct here—at
least on Bender’s telling of that conduct—as objectively unreasonable state action

and therefore in violation of Bender’s Fourth Amendment rights.8

8 The Court takes care to note that the unreasonableness of the Officers’ conduct arises from
the facts of this case, not the nature of their actions. Indeed, officers routinely seize and
remove persons from residences—for example, when they have probable cause to believe that
the arrestee is criminally trespassing on the property. See, e.g., Weser v. Goodson, 965 F.3d
507, 514 (6th Cir. 2020). Here, though, the only basis on which the Officers claimed the right
to remove Bender was Kevin Surette’s alleged estate document. And it is that specific basis
for acting that the Court finds unreasonable in light of the binding caselaw discussed above.
2. The Fourth Amendment Right at Issue Was Clearly Established.
That a jury could find that the Officers violated Bender’s Fourth Amendment
rights is only half of the qualified-immunity analysis. The second half requires that
the violated right to have been “clearly established” such that “a reasonable official

would understand that what he is doing violates that right.” Anderson v. Creighton,
483 U.S. 635, 640 (1987). Only if the violated right’s “contours” were “sufficiently
clear” can a public official lose his qualified immunity. Id.
A right is clearly established “only when existing precedent has placed
the … constitutional question beyond debate.” Wilson v. Gregory, 3 F.4th 844, 855
(6th Cir. 2021) (cleaned up). Importantly, though, the inquiry “do[es] not require a

case directly on point.” Id. (cleaned up). It is enough if “the right’s contours [are]
sufficiently definite that any reasonable official … would have understood that he
was violating it.” Id. (cleaned up). But as the Supreme Court has cautioned, the
right’s “specificity is especially important in the Fourth Amendment context, where
the Court has recognized that ‘[i]t is sometimes difficult for an officer to determine
how the relevant legal doctrine … will apply to the factual situation” at hand.
Mullenix v. Luna, 577 U.S. 7, 12 (2015). In determining whether a right fits that bill,

the Court “look[s] first to decisions of the Supreme Court, then to decisions of [the
Sixth Circuit] and other courts within our circuit, and finally to decisions of other
circuits.” Thomas v. Cohen, 304 F.3d 563, 582 (6th Cir. 2002) (Gilman, J., concurring
in part) (first modification in original).
Applied to the facts of this case—at least the facts taken in the light most
favorable to Bender—the Sixth Circuit’s caselaw puts the constitutional question
“beyond debate.” Wilson, 3 F.4th at 855. First, Cochran—discussed extensively
above—would put a reasonable official in the Officers’ factual position on notice that,
where a person’s claim to have a right to evict someone from a residence rests

exclusively on the purported effect of legal documents (the eviction judgment in
Cochran or some as-yet-unidentified estate document here), the Officers must at least
(1) closely read the document purporting to vest them with authority to seize the
property at issue, and (2) enlist the aid of an attorney, at the very minimum, to
confirm that their understanding of the document is correct. Cochran, 656 F.3d at
308–09. Indeed, that case would put a reasonable official on notice that even those
two steps may not be enough, since the officials in that case took those steps and still

lost their qualified immunity. Id.
To better understand what territory Cochran marks as clearly
unconstitutional, it’s helpful to take an example of what falls outside those bounds.
In Middaugh v. City of Three Rivers, the Sixth Circuit held that police officers violated
a car owner’s Fourth Amendment rights by participating in the private repossession
of their car without a supporting court order. 684 F. App’x at 529. But those officers

were still entitled to qualified immunity because of the “daylight” between their
conduct and the Cochran defendants’ conduct. Id. at 530. On the state-action prong,
for example, the Middaugh court noted that unlike the defendants in Cochran, who
had “threatened to arrest the plaintiff,” the Middaugh defendants hadn’t. Id. No such
daylight exists between Cochran and this case—viewed in the light most favorable to
Bender, the record shows that the Officers threatened to arrest her if she didn’t
comply with their orders. (Doc. 42-1, #1262). And in any case, the decision in
Middaugh further expands the scope of “clearly unconstitutional conduct” such that
that even the lesser degree of official participation that occurred in that case wouldn’t

be shielded by qualified immunity in cases going forward. And even more to the point
here, on the reasonableness prong, the Middaugh court found it already clearly
established that “police officers who take an active role in a seizure or eviction
generally are not entitled to qualified immunity when there is neither a specific court
order permitting the officers’ conduct nor any exigent circumstance.” Middaugh, 684
F. App’x at 529 (quoting Cochran, 656 F.3d at 308) (cleaned up) (emphasis added).
Taken together, Cochran and Middaugh establish a universe of clearly

unconstitutional conduct that comfortably encompasses the Officers’ actions here, at
least on Bender’s telling.
Does this mean that police officers can never act based on one person’s account
of ownership? Not necessarily. As Middaugh acknowledges, exigent circumstances
may require exigent action. If a person yells, “Hey, he’s stealing my car!,” officers can
rely on that to briefly seize the car to sort things out. Cf. id. But whatever the rule

that might apply on those facts, no such exigency existed here.9 Surrette simply

9 A recent decision from the Sixth Circuit confirms—albeit in the context of the Fourteenth
Amendment’s guarantee of due process, which Bender hasn’t raised—that holders of property
interests have “a clearly established right to pre-eviction notice when exigent circumstances
do not exist.” Fitzpatrick v. Hanney, et al., 138 F.4th 991, 997 (6th Cir. 2025). And the court
also helpfully provided a definition of “exigent circumstances,” as circumstances giving rise
to “a special need for very prompt action to secure an important public interest.” Id. (cleaned
up). Meeting that standard, for example, were “the horrid condition[s] of [the plaintiff’s]
home” in that case. Id. at 998. But again, Defendants haven’t pointed to any undisputed
record evidence showing any exigency—i.e., any “special need for very prompt action”—at
Bender’s condo that day.
decided he wanted Bender out of the house, and (again, on Bender’s telling) the
Officers were only too happy to help in removing her without any meaningful
investigation into the legal basis for doing so.

In sum, the City Defendants’ motion for summary judgment fails with respect
to the Officers because, under the most plaintiff-friendly reading of the record, they
violated Bender’s clearly established Fourth Amendment rights. True, at trial, a jury
could reject Bender’s account. And if, as the Officer’s say, they did not remove Bender
from the condo, that changes everything. But the Court cannot decide between those
competing accounts at the summary judgment stage.

B. The Evidence Doesn’t Support Either a Failure-to-Train or a
Ratification Theory of Municipal Liability Against Either Chief Hines
or the City.
Apart from her claims against the Officers, Bender also sued the Village and
Chief Hines, alleging that they (1) failed to adequately train the Officers as to the
scope of their duties, and (2) ratified the Officers’ unlawful actions. (Doc. 42, #1247–
53). The claims against either Defendant proceed on different theories: against Hines
under a theory of individual liability, and against the Village under a theory of
municipal liability. Both fail.
1. The Evidence Doesn’t Show That Chief Hines Was Sufficiently
Involved in the Officers’ Conduct to Be Held Individually Liable.
Bender asserts failure-to-train and ratification claims against Chief Hines in
his individual capacity. (See Doc. 1, #2 (stating that “[Hines] is being sued in his
individual capacity”)). Generally, supervisory officials can’t be held individually liable
under § 1983 for their subordinates’ actions—that is, “a § 1983 plaintiff generally
must prove that a defendant was personally at fault and that the defendant’s culpable
conduct (not somebody else’s) caused the injury.” Pineda v. Hamilton Cnty., 977 F.3d
483, 490 (6th Cir. 2020) (emphasis in original). Applying that principle to both the

failure-to-train and ratification claims yields the same result: neither one merits
consideration by a jury.
Start with the failure-to-train claim. “[A]bsent evidence of personal
involvement in the alleged underlying misconduct, the defendant [cannot] be
individually liable based on [his] failure to train or supervise.” Poynter v. Whitley
Cnty. Det. Ctr., 722 F. Supp. 3d 745, 756 (E.D. Ky. 2024) (citing Heyerman v. Cnty. of
Calhoun, 680 F.3d 642, 646–48 (6th Cir. 2012)). Here, there is no evidence that Chief

Hines was personally involved in any aspect of the Officers’ underlying conduct. And,
for what it’s worth, Bender never argued in her Response that Chief Hines
individually failed to train the Officers despite alleging as much in her Complaint,
which suggests she has abandoned that argument. (See Doc. 42, #1248–51 (arguing
that “the Village failed to train or supervise the Officers”); Doc. 1, #5).
Bender’s argument that Chief Hines ratified the Officers’ conduct by failing to

investigate Bender’s allegations doesn’t fare any better. Even though an official’s
failure to investigate allegations of his subordinates’ misconduct can amount to
ratification sufficient to impose supervisory liability on the municipality itself (more
on that later), that route is only available against a supervisor sued in his official
capacity (i.e., when the claim is treated as one against the municipality). See Wilson
v. Russo, No. 3:20-cv-2498, 2022 WL 911270, at *1 (N.D. Ohio Mar. 29, 2022)
(collecting cases) (explaining that “a policymaker cannot be liable in their individual
capacity for failing to investigate”). Put simply, Bender’s failure-to-train claim
against Hines in his individual capacity fails because “the ratification theory does not

apply to claims brought against a supervisor in their individual capacity.” Id.; see also
Koren v. Neil, No. 1:21-cv-9, 2022 WL 974340, at *11 (S.D. Ohio Mar. 31, 2022)
(explaining that allegations of “mere ratification of conduct … [are] insufficient to
make supervisors [individually] liable for their subordinates’ conduct” (cleaned up));
Enoch v. Hamilton Cnty. Sheriff’s Off., No. 1:16-cv-661, 2017 WL 2210515, at *6–7
(S.D. Ohio May 18, 2017) (citing cases showing that ratification claims are viable only
when brought against a state actor sued in their official capacity).

2. The Evidence Doesn’t Support Monell Liability Against the
Village.
Bender also pursued the failure-to-train and ratification claims against the
Village itself under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978)—that is, as
§ 1983 claims directed against a governmental entity as opposed to an individual
official. (See Doc. 42, #1247–48). So the Court must determine whether the record in
this case arguably shows “(1) a constitutional violation, which (2) was directly caused
by a municipal policy or custom.” Abernathy v. City of Cincinnati, No. 1:24-cv-162,
2024 WL 4955273, at *9–10 (S.D. Ohio Dec. 3, 2024) (discussing Monell, 436 U.S. at

658).
The question the first prong raises—did a constitutional violation occur?—
moves past summary judgment based on the Court’s earlier analysis of the claims
against the Officers. The second prong—that the violation was “directly caused by a
municipal policy or custom”—can be satisfied if Bender can establish a genuine issue
of material fact under of any of the following legal theories: “(1) the existence of an
illegal official policy or legislative enactment; (2) that an official with 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.” Abernathy, 2024 WL 4955273, at *10 (cleaned up)
(quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)). Bender argues only
the second and third prongs here. So the Court addresses each in turn. But spoiler
alert—the Court concludes Bender fails on both.

a. Bender’s Ratification Theory Fails Because She Alleges
Only a Single Failure to Investigate.
Monell liability under a ratification theory requires a plaintiff to show that “an
official with final decision-making authority ratified illegal actions.” Alsaada v. City
of Columbus, 536 F. Supp. 3d 216, 270 (S.D. Ohio 2021). One way to show ratification
is to demonstrate that the municipal entity “fail[ed] to meaningfully investigate and
punish allegations of unconstitutional conduct.” Hill v. Wonch, No. 2:19-cv-159, 2022
WL 22248554, at *2 (W.D. Mich. Apr. 5, 2022). That is the theory under which Bender
seeks to hold the Village liable based on her allegation that “[d]espite [her] making a
formal report, Chief Hines did not initiate an internal investigation.” (Doc. 42, #1253).

But the “allegation of a single failure to investigate a single plaintiff’s claim does not
suffice.” Pineda, 977 F.3d at 495 (emphasis in original). Yet that is all that Bender
alleges here. Because Bender doesn’t allege “multiple earlier inadequate
investigations,” she can’t sustain her Monell claims on a ratification theory. Id.
b. Bender’s Failure-to-Train Theory Against the Village
Fails Because Mariemont Police Officers’ Duties Don’t
Include Evictions.
To establish municipal liability on a failure-to-train theory, Bender must show
three things: (1) that the Officers’ training was “inadequate to prepare [them] for the
tasks that officers in [their] position must perform;” (2) that the inadequacy resulted
from the Village’s “fail[ure] to train its employees to handle recurring situations
presenting an obvious potential for such a violation;” and (3) that the inadequacy
caused her injury. Harvey v. Campbell Cnty., Tenn., 453 F. App’x 557, 562–63 (6th
Cir. 2011).
Bender stumbles on the very first prong. Without a doubt, the evidence shows

that the Officers weren’t trained to perform evictions, let alone to recognize the
potential constitutional pitfalls that can attend a botched eviction. (See Doc. 44, #1284
(recognizing that the Officers don’t receive eviction training, since evictions are
handled by the Sheriff’s office)). But therein lies the rub: evictions aren’t the sort of
“tasks that officers in [their] position must perform.” Harvey, 453 F. App’x at 562; see
also Buetenmiller v. Macomb Cnty., No. 20-11031, 2022 WL 203000, at *10 (E.D.
Mich. Jan. 20, 2022) (explaining that allegations of official acts “far outside the scope”

of duty can’t support a failure-to-train theory of liability, since it wasn’t plainly
obvious to the municipal entity that its employees would commit such acts). Indeed,
the Mariemont Police Department’s Policy Manual expressly provides that “the
Hamilton County Sheriff’s Department handles evictions,” (Doc. 44, #1284), and
Officer Pittsley testified that the Mariemont Police Department doesn’t perform
evictions, (Doc. 31, #534).
Because Monell doesn’t require municipal entities to train their employees on
how to avoid constitutional pitfalls with respect to duties they are instructed not to
perform, Bender can’t succeed on a failure-to-train theory.

C. The City Defendants’ Other Arguments Fail for Lack of Specificity.
The City Defendants wrap up their motion with two potshots, arguing that
“punitive damages are not available here” and that Bender’s “claim for declaratory
judgment fails as a matter of law.” (Doc. 35, #941–42 (capitalization omitted)). Those
arguments consist of the following: three paragraphs of legal standards, and two
paragraphs of plainly conclusory legal “arguments.” (See id.). The best the City

Defendants muster on the punitive-damages argument is that “[t]here is nothing in
the record to support a claim for punitive damages.” (Id. at #941). Similarly, with
respect to declaratory judgment, “the factors do not weigh in favor of the Court
exercising jurisdiction.” (Id. at #942). Such vagueness is a far cry from the specific
record citations required of a summary-judgment movant to demonstrate the absence
of any genuine issue of material fact. To be sure, a party’s obligation at summary

judgment does not extend to citing record evidence to prove a lack of record evidence.
But a party resting its entitlement to summary judgment on an argument that “no
record evidence exists” must offer more than bald assertions to that effect. Rather,
the party must explain in what manner the record evidence is lacking. Because
movants have failed to explain their assertions, the Court declines to further consider
these two alleged bases for summary judgment—to the minimal extent they can be
so called.
CONCLUSION
Because the evidence doesn’t support Bender’s claims for municipal liability
under Monell, the Court GRANTS IN PART Defendants’ Motion for Summary
Judgment (Doc. 35), and DISMISSES Bender’s claims to the extent that she seeks
to recover against Chief Hines or the Village. But because a reasonable jury could
conclude that the Officers violated Bender’s clearly established Fourth Amendment
rights, the Court DENIES IN PART the Motion (Doc. 35) to#that extent.

SO ORDERED.

June 23, 2025
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11082197. Public record. Not legal advice.