Brooks v. City of Cleveland

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DWAYNE BROOKS,

)

Plaintiff, ) CASE NO: 1:24-cv-1590

)

)

Judge Dan Aaron Polster

)

v. )

)

OPINION AND ORDER

THE CITY OF CLEVELAND, et al., )

)

Defendants. )

)

Before the Court is Defendant City of Cleveland’s (the “City”) Motion for Judgment on

the Pleadings (“City’s Motion”), ECF 28, and the Individual Defendants1 Partial Motion for

Judgment on the Pleadings (“Individual Defendants’ Motion”), ECF 29.

For the following reasons, the Court: (1) DENIES the City’s Motion; (2) GRANTS IN

PART the Individual Defendants’ Motion as it relates to any federal and state law claims for

monetary judgment against the Tolliver Estate, as well as the abuse of process claim against all

Individual Defendants; and (3) DENIES IN PART the Individual Defendants’ Motion regarding

any federal and state law claims for declaratory judgment against the Tolliver Estate, as well as

the remaining state law claims against the Individual Defendants.

1 The Individual Defendants are, collectively: Edward Kovacic, Gregory Kunz, James Cudo, Jack Bornfield, and

Dennis Murphy, John James, John Fransen, the Estate of John Kaminski, and the Estate of Robert Tolliver. Officer

Kaminski was alive had the time the Complaint was initially filed in November 2024; he has since passed away and

has been substituted in this matter by his Estate. See ECF 47.

I. BACKGROUND

A. Factual Background2

1. Background to the Murder

On the evening of August 17, 1987, four or five men in a stolen van drove to Luke Easter

Park on Cleveland’s east side and fired multiple gunshots into a crowd, killing Clinton Arnold and

wounding two others. ECF 5, ¶ 7. Survivors of the shooting saw the perpetrators drive away. Id.

Dwayne Brooks (“Brooks” or “Plaintiff”) was not present at the scene of the crime, because he

was in New York visiting family. Id., ¶ 8.

Members of the Cleveland Division of Police (“CDP”) first arrived at the crime scene after

the shooting was over. Detectives authored the original investigation report, opening the police

investigation of the Clinton Arnold murder. Id., ¶ 9.

2. Pre-Indictment Investigation

Defendants Detectives Kovacic, Kunz, and Cudo of the homicide division led the

investigation, with assistance from Defendants Bornfield and Murphy. Id., ¶ 10. The Supervisor

Defendants, James, Kaminski, Fransen, and Tolliver, oversaw the investigation. Id., ¶ 11

Supervisor Defendant Lieutenant John James administered the homicide division of the police

department, and personally assigned officers in the Clinton Arnold investigation. Id. The

Supervisor Defendants, particularly Fransen and James, also personally performed investigative

work on the case. Id. All four Supervisor Defendants reviewed, approved, and signed off on all

reports of officer misconduct described in the Complaint. Id. The Supervisor Defendants had

reason to know about all the information relevant to the investigation, including suppressed

2 The Court must take all properly alleged facts as true, construing them in the light most favorable to the plaintiff.

See infra at Section II.

evidence. Id.

The Individual Defendants developed most of what would become the State’s case against

Brooks during August and September of 1987. Id., ¶ 12. They also developed cases against two

other suspects—Sam Philpot and Kelly Wingo—leaving at least one other participant that remains

unknown. Id.

During the investigation, Defendants took photos of the scene and gathered physical

evidence, including the victim’s body, the stolen van and its contents, and bullet casings and pellets

found at the scene. Id., ¶ 13. The Police Scientific Investigation Unit (“SIU”) conducted forensic

testing at the scene. Id. Defendants and SIU did not find ballistics, fingerprint, blood, or any other

physical evidence that showed Plaintiff was present at the scene of the crime. Id. The investigation

proceeded solely on witness statements. Id., ¶ 15.

Based on various witness accounts, the Individual Defendants began constructing a

narrative of the events surrounding the August 17 shooting. Id., ¶¶ 16-21. The key witnesses were

people who were at the park during the shooting, people who had witnessed the preceding van

robbery or suspects getting into the van before the shooting, and people who had seen the

perpetrators leave the van after the shooting. Additional witnesses included impartial

neighborhood onlookers, victims of the robbery and shooting, and never-pursued alternate suspects

in the crimes. Id. Defendants learned that two men stole the van at gunpoint from a man named

Johnny Logan shortly before the shooting. Id., ¶ 19. Others described seeing the shooters flee the

van after firing into the crowd at Luke Easter Park. Id. Defendants learned that Brooks, Wingo,

and Philpot had all been at the park a few days prior to the shooting, when a conflict arose between

Wingo, Philpot, and a separate group of young men. Id., ¶ 17. Defendants learned that, on the day

of the shooting, the gunmen in the van were aiming at the same men from the earlier altercation,

but the shots struck bystanders instead, including Clinton Arnold. Id., ¶ 18.

Beyond this information, witness statements varied significantly. Id., ¶ 20. Some placed

Brooks at the scene, while others identified only Wingo and Philpot, and not Brooks, at the scene.

Id. Other witnesses put at least five completely different suspects at the scene. Id. Notably, no

eyewitness placed Brooks at the scene of the van robbery. Id. Despite these conflicting accounts,

the complaint alleges that two self-interested witnesses offered a version of events implicating

Brooks in exchange for favorable treatment in their own criminal investigations. Id., ¶ 21.

The Individual Defendants relied heavily on the witness testimony of Michael Creel, who,

along with several relatives, was an initial suspect in the investigation. Id., ¶ 22. Police arrested

Creel and his cousins immediately after the shooting, and Defendants interviewed Creel multiple

times. Id. While in custody, Creel gave a witness statement alleging that Brooks, Wingo, and

Philpot arrived at his house shortly after the shooting and were “acting suspicious.” Id. At the time

of his statement, Creel had already been in implicated in the crime, as he was under arrest and the

police found him in possession of items from inside the stolen van. Id. The Complaint alleges that

Creel made this statement to protect himself and his family by redirecting suspicion toward

Brooks. Id. The Defendants relied on Creel’s statements for the rest of the investigation and

throughout trial. Id.

The other key witness that the Individual Defendants relied on was Kelly Wingo. Id., ¶ 23.

Wingo voluntarily turned himself in, admitting involvement as a non-shooter in the incident. Id.

He claimed Brooks was one of the shooters and that one of the guns used belong to Brooks. Id. In

exchange for Wingo’s cooperation, including this statement and later testimony at trial, Wingo

was permitted to plead to lesser charges and a lighter sentence. Id. The Individual Defendants

learned during their investigation that Wingo was under a separate FBI investigation for

international drug trafficking at the time of the incident. Id., ¶ 27e. This important fact was

documented by Defendants Kovacic and Cudo in at least one report, and by Defendants Fransen

and James in at least one other report. Id. However, this information was not disclosed.

Separately, Philpot turned himself in and was convicted for his involvement in the incident.

Id., ¶ 24.

Relying on the statements of Wingo and Creel, the Individual Defendants abandoned their

investigation into the Creel family and other potential suspects. Id., ¶¶ 25-26. In order to support

this narrative, the Individual Defendants “ceased to continue to investigate the Creels or other

alternate suspects; abandoned a search for any fourth or fifth participants; and went after Brooks.”

Id. ¶ 25. The Individual Defendants “ignored and eventually suppressed witness statements that

supported Brooks’s [sic] non-involvement, impeached Wingo or Creel’s stories, or pointed to

different suspects.” Id., ¶ 26.

Brooks alleges that several exculpatory and impeaching witness statements were not

disclosed during the investigation or trial. Id., ¶ 27. One such witness, Sharon Garrett, who saw

the four or five culprits exiting the stolen van after the shooting, and who saw someone putting a

shotgun into the van before the shooting, viewed a photo array that included Brooks, Wingo, and

Philpot. Id., ¶ 27a. She identified Wingo and Philpot, but did not select Brooks. Id. Defendant

Kunz documented this non-identification in at least one report, which Defendant Tolliver

reviewed. Defendants Cudo and Kovacic were also aware of this information. However, none of

the Individual Defendants followed up on this, and, further, this information was not disclosed. Id.

Other witnesses, including Johnny Logan (the van’s owner), Rosue Pierce (who worked

nearby Logan), and Arthur Clayton (who also worked nearby Logan), identified Wingo, but not

Brooks, as one of the individuals involved in the van robbery. Id., ¶ 27b. These accounts

contradicted Wingo’s statement that he did not steal the van. Defendants Bornfield and Murphy

recorded some of these interviews in reports, which Defendants James and Tolliver reviewed and

approved. Id. Defendants James and Fransen also personally authored reports recording some of

this information. Id. Again, none of this information was disclosed. Id.

Latonya Johnson/Liddell, another impartial witness who saw the four or five culprits

leaving the stolen van, identified Darryl Creel (Michael Creel’s cousin), but not Brooks, as one of

the individuals fleeing from the van after the shooting. Id., ¶ 27d. Johnson/Liddell also reported

that the men who left the van after the shooting went to the Creel residence. Id. Her account

conflicted with Michael Creel’s version of the events. Id. Defendants Kovacic, Cudo, and Kunz

received the original witness reports regarding Johnson/Liddell’s statements, and then took and

recorded a follow-up statement as well as performing follow up interviews with the Creels. Id. The

Supervisor Defendants approved the reports of these events. Again, none of this information was

disclosed. Id.

Throughout the investigation and trial, the only inculpatory evidence in support of Brooks’

arrest and prosecution came from the witness statements of Wingo and Creel. Id., ¶ 31. Since the

trial, both Wingo and Creel have recanted their statements against Brooks. Id., ¶ 32.

Brooks alleges that each of the named Individual Defendants played a role in the

investigation and was either aware of or directly involved in the alleged misconduct. Id., ¶ 36. The

Individual Defendants worked closely together in pairs or small groups. Id. For example,

Defendants Kovacic and Cudo were partners and often worked alongside Defendant Kunz. Id. At

trial, Defendant Kovacic testified that the homicide detectives involved in the case made decisions

collectively. Id. Additionally, though witness Johnson/Liddell first interacted with non-defendant

officers, it was Defendants Kovacic, Cudo, and Kunz who later interviewed and released the Creels

from police custody, despite Johnson/Liddell’s positive identification of Darryl Creel as a suspect.

Id. Defendants Kovacic and Cudo proceeded to present the case to prosecutors while in possession

of exculpatory information. Id. Brooks further alleges that all named Individual Defendants had

knowledge of one another’s actions and did not intervene. Id.

3. Plaintiff’s Wrongful Conviction

At trial, the prosecution’s case relied primarily on the testimony of Creel and Wingo, whose

statements have since been recanted, as well as the testimony of Defendant Kovacic. Id., ¶ 40. No

physical or forensic evidence linking Brooks to the shooting was ever presented to the jury. Id.,

¶ 41. The State argued at trial that Brooks was involved in interstate drug trafficking, and that the

men at the park previously attacked Brooks and stole his jewelry as part of a drug turf war. The

State claimed that Brooks was one of the shooters trying to get revenge. Id., ¶ 41. However, Brooks

had no criminal history and claims he was in New York with family at the time of the incident. Id.,

¶ 42. Further, it was Wingo, not Brooks, who was under federal investigation for drug trafficking

and connected to the drug trade and turf war. Id., ¶ 43.

Despite presenting an alibi, Brooks alleges that without the exculpatory and impeachment

evidence the police suppressed, he could not impeach either Wingo or Creel nor successfully rebut

the State’s theory of the case. Id., ¶ 44. Brooks alleges he lacked the ability to effectively cross-

examine either Wingo or Creel or investigate alternative witnesses whose statements were

withheld. Id., ¶ 46. Even after Brooks was indicted, the Individual Defendants remained involved

in his trial, assisting other agencies in locating Brooks after his indictment and gathering witness

testimony for the State. Id., ¶ 45. Defendant Kovacic sat at the counsel table as the State’s

representative, and even testified during the trial. Id. When Defendant Kovacic testified, he did

not testify about the exculpatory evidence that had not been disclosed; rather, he testified consistent

with its suppression and his alleged misconduct. Id. Despite knowledge of the suppressed

exculpatory evidence, Brooks alleges that none of the Individual Defendants intervened to prevent

false testimony and incomplete evidence at trial. Id.

Brooks was ultimately convicted of murder, attempted murder, and robbery, though the

jury did not convict him on the firearm specifications, as no evidence directly linked him to a

weapon. Id., ¶ 47. This was a capital case, though Brooks was able to avoid the death penalty at

the mitigation stage of his trial. He was sentenced to twenty years to life, plus consecutive

sentences on the attempted murder counts. Id., ¶ 48.

4. New Trial and Dismissal of Charges

Over three decades later, Brooks finally obtained the CDP files revealing the exculpatory

evidence that was not presented at trial and never disclosed to him. Id., ¶¶ 49-50. Based upon this

newly discovered evidence, Brooks’ counsel moved for a new trial. Id., ¶¶ 51-57. At the

evidentiary hearing on the motion, Brooks’ surviving defense attorney, Gordon Friedman, testified

he had no knowledge of the withheld materials and would have introduced them if he had them.

Id. Friedman testified further that, at the time of Brooks’ original trial, Cleveland police often

failed to produce copies of such evidence to prosecutors. Id. The surviving lead trial prosecutor,

John Ricotta, testified that he did not recall the withheld materials and could not say if they were

in his file at the time of trial. Id. Despite having notice of the alleged misconduct, the Cuyahoga

County Prosecutor’s Office opposed a new trial. Id. Nevertheless, the trial court granted the

motion, expressly finding that the Brady violations undermined Brooks’ constitutional rights. Id.

The County ultimately determined it lacked sufficient evidence to re-try the case, and the trial

court dismissed the charges with prejudice. Id. Brooks was declared a wrongfully convicted person

under Ohio law, with the court citing Brady violations as the basis for vacating his conviction. Id.

In the time since the original investigation, Brooks alleges that the Individual Defendants’

“continuing suppression of evidence prolonged Brooks’s [sic] unjust imprisonment.” Id., ¶ 59.

Well over thirty years have passed since the initial investigation—“[w]itnesses have died, and

upon information and belief, even more evidence was lost or destroyed. Brooks cannot now

perform testing on now-lost or destroyed items nor interview now dead or disappeared witnesses

to learn about even further misconduct which, upon information and belief, Defendants

committed.” Id. Brooks further alleges “upon information and belief, Defendants committed

additional Brady violations and other unconstitutional conduct still not known to Plaintiff, of a

similar kind to that alleged here, which similarly contributed to Plaintiff’s injuries, and which

Plaintiff still may discover.” Id., ¶ 60.

5. Official Policies and Customs of the City

Brooks alleges that the Individual Defendants’ misconduct in his case “was not rogue,” but

rather “undertaken pursuant to the City of Cleveland’s official policies, patterns, and practices.”

Id., ¶¶ 61-62. The Court now summarizes these allegations.

Brooks alleges that “[t]he City, through CDP, maintained a decades-long official policy

and custom in which police regularly used unconstitutional measures to secure wrongful

convictions.” Id., ¶ 63. He asserts that these measures included “withholding, suppressing, or

destroying exculpatory evidence; fabricating evidence; engaging in suggestive identification and

lineup procedures; and engaging in leading, coercive, and unduly suggestive questioning of and

contact with witnesses including feeding information to and threatening or bribing witnesses.” Id.

“These [practices] were established for decades before and continued even after Dwayne Brooks’s

[sic] wrongful conviction.” Id.

Brooks proceeds to identify a significant number of “cases and historical materials related

to the Cleveland police withholding evidence favorable to criminal defendants.” Id., ¶ 65. These

include cases prior to Brooks’ conviction, such as the 1975 wrongful convictions of Wiley

Bridgeman, Kwame Ajamu, and Rickey Jackson, and the 1975 wrongful conviction of Isaiah

Andrews. Brooks also cites to cases that happened after his conviction, such as the 1991 wrongful

conviction of Charles Jackson, the 1995 wrongful conviction of Anthony Lemons, the 2001

wrongful conviction of Michael Buehner, and the 2007 wrongful convictions of Michael Sutton

and Kenny Philips.3 Id.

Brooks alleges that “Cleveland police culture of suppressing evidence and otherwise

committing misconduct leading to wrongful convictions has been passed on from officer to officer,

approved from supervisor to supervisor, through the decades.” Id., ¶ 66.

For example, the same supervising officers who oversaw the

investigation against Dwayne Brooks (Defendants Fransen, James,

and Kaminski) also oversaw the investigation leading to the

wrongful conviction of Charles Jackson. Similarly, some of the

same officers who had become more senior participants in the

investigations against Brooks and Jackson in the late 1980s and

early 1990s (for example, Defendant Kaminski, and additional

officers not named here, including Comodeca, Moore, Hicks, and

Allen) were previously involved in the 1970s investigations against

Isaiah Andrews or Ricky Jackson, Kwame Ajamu, and Wiley

Bridgeman or both.

Id. In further support of his argument on entrenchment, Brooks notes that “[o]ne of the first

patrolmen to arrive at the crime scene at issue in the Brooks investigation back in 1987 was Calvin

Williams, the City’s most recent former Chief of Police.” Id., ¶ 67. According to Brooks, the Sixth

Circuit has recognized not only CDP’s official policy permitting misconduct, but also CDP’s

“longstanding failure to train its officers in this regard,” citing Ricky Jackson v. City of Cleveland,

925 F.3d 793, 828 (6th Cir. 2019). Id., ¶ 77. In addition, Brooks alleges “CDP has a documented

3 A complete collection of the cases Brooks cites in support of his allegations can be found in the Complaint, ECF 5,

¶¶ 65-69.

historical practice reaching back to the 1970s of using similar unconstitutional measures including

fabricating evidence, using suggestive and/or coercive identification procedures, and coercing

witnesses to testify untruthfully. This practice was passed down and has been documented in all

the same ways.” Id., ¶ 68.

Brooks also identifies a number of historical records outside of courts of law documenting

these policies and practices. In his 1973 autobiography, then-Mayor Carl Stokes reflected on “the

failures of the Cleveland Division of Police and its officers.” Id., ¶ 71. Mayor Stokes noted that

CDP officers were “all almost totally lacking in the training in human relations that some

departments have at least made a beginning to provide.” Id. (quoting Carl Stokes, Promise of

Power 173 (1973)). He “also remarked on the policy or practice under which improper or criminal

conduct toward black people was left without consequence: ‘And all the police knew that few

policemen faced charges or an appearance before the grand jury for shooting a black man while

on duty.’” Id. (quoting Stokes, supra, at 173).

In 1974, then-Mayor Stokes appointed the Cleveland Crime Commission to investigate

police corruption within the city. Id., ¶ 72. The Commission produced a report on police corruption

and criminal conduct, recommending significant structural changes that “would establish lines of

responsibility and accountability and would foster the changes necessary to correct the structural,

organizational and procedural sources that can lead to police corruption and misconduct.” Id.

(quoting Mayor’s Crime Commission, Report with Recommendations 3 (1974)). The report

included with it a 1966 study by Public Administration Service on CDP, which noted that the

Police Division’s “formal organization violates sound organizational concepts in many respects.

It is further confused by informal arrangements, power centers, and unusual lines of

communications which make the apparent structure of organization virtually meaningless.” Id.,

¶ 73 (quoting Mayor’s Crime Commission, supra, app. B at 20). The study further noted “[t]he

management process of directing is but little exercised by many commanders and effective field

supervision is virtually non-existent.” Id. (quoting Mayor’s Crime Commission, supra, app. B at

22). “The problems of police and community relations are so critical in Cleveland that they warrant

immediate and serious attention[.] . . . Yet the division stands aloof from very serious community

problems, and it has no real program directed toward the analysis of these problems, nor for their

solution. Training in police and community relations is not offered in sufficient depth or extent.”

Id., ¶ 74 (quoting Mayor’s Crime Commission, supra, app. B at 23).

In 1975, the Cleveland Foundation issued a report after conducting an extensive study of

the CDP, including interviewing the Chief of Police and many officers within the CDP. Id., ¶ 75.

The report noted a “lack of supervision over the massive power delegated to subordinate officers.”

Id. Additionally, the report found that “[t]here was no ‘ongoing inservice training’ for all officers,

with ‘inservice training’ defined as ‘the periodic training received by a police officer throughout

his career to maintain, update, and improve his police knowledge and skills.’” Id. (quoting

Cleveland Foundation, Private Sector Assistance to the Cleveland Division of Police 27 (1975)).

Brooks alleges that “the City and CDP have a similarly entrenched history of failing to

supervise, investigate, and discipline allegations of officer misconduct like that at issue here.” Id.,

¶ 76. For example, Brooks cites to testimony in Ricky Jackson from former CDP Commander

William Tell. Id. ¶¶ 78-81. Commander Tell testified “that it was well known among CDP officers

that they could get away with serious misconduct without being disciplined.” Id. (citing Tell Aff.,

¶ 15(a), Ricky Jackson v. Cleveland, Case No. 1:15-CV-989 (N.D. Ohio Jan. 27, 2017),

Dkt. No. 103-3).

According to Tell, this was reflected in specific incidents, including the department’s

failure to investigate or discipline a detective despite public complaints and news reports alleging

the use of excessive force and false testimony. Id. Tell recounted an early 1980s incident where he

reported concerns regarding another officer’s fabrication of evidence and use of force during the

investigation of a shooting involving a young woman. Id.4 He testified that Internal Affairs ruled

the complaint unsubstantiated and did not take action. Id. He claimed that the police department

covered up the true events of the case, and that the conclusion reached by Internal Affairs was

“purposefully untrue.” Id. Tell stated that misconduct by officers, including physical violence

during interrogations, were rarely reported or addressed. Id. He reported acts of physical violence

by fellow officers, such as punching suspects in the face and head and knocking them down in

effort to get those suspects to confess or implicate others, yet when “Tell attempted to notify

superiors in the CDP of the wrongful conduct . . . he was either reprimanded or told not to pursue

the claims of misconduct any further.” Id. He attributed the lack of internal reporting in part to a

fear of officers who spoke up being ostracized, and a pervasive “Code of Silence”. Id

In both affidavit and deposition testimony, Tell described a departmental culture in which

silence around misconduct was expected and reinforced. Id. He stated that this “Code of Silence”

was reflected in training and disciplinary practices, and that officers learned to refrain from

reporting constitutional or legal violations to avoid personal or professional consequences. Id. Tell

linked this practice to various cases over several decades, including many that Brooks cites

elsewhere in his Complaint for support (and described above) in which misconduct allegedly

occurred but was not disclosed by officers at the time. Id. Brooks alleges that “[t]his practice and

policy of a Code of Silence over the years leading up to and beyond the prosecution of Plaintiff is

evident in the testimony of former CDP Commander William Tell as far back as the 1960s and

4 Specific language from Commander Tell’s testimony can be found in Brooks’ Complaint, ECF 5, ¶¶ 79-82.

70s, through the time of all of the misconduct described in this complaint and beyond.” Id. Brooks

further alleges that “[i]n all these cases and others listed in this Complaint, officers of CDP, like

Defendant Kovacic, sat by at counsel table or testified at trials of innocent people, and maintained

silence when they were tried and convicted based upon false or incomplete evidence.” Id.

Brooks alleges that because of the above, “CDP officers came to believe that they may

violate the civil rights of members of the public and cause innocent persons to be charged with

serious crimes without fear of consequences from their leadership or the City.” Id., ¶ 83. Brooks

also alleges that “policymakers for the City and CDP knew of all these problems, allowed them to

continue, and made decisions not to implement adequate policies, training, or supervision, even

though the need for a legitimate mechanism for new or different policies, training, oversight, or

punishment of officers was obvious.” Id., ¶ 84. According to Brooks, “[t]he widespread pattern

and practice of using unconstitutional measures to secure convictions was so well settled as to

constitute a de facto policy in the Cleveland Division of Police,” and “municipal policymakers

with authority over the practice exhibited deliberate indifference to the problem, ratifying it.” Id.,

¶ 85.

Brooks alleges that the misconduct described in his Complaint was undertaken pursuant to

the official policy of the City and CDP, and that the constitutional violations alleged were a

“predictable consequence of such official policy, which was the moving force behind the

violations.” Id., ¶ 87. This included the City's policymakers knowing

among other things, that there was a need to implement policies and

train, supervise, and discipline police officers related to how to

handle, preserve, and disclose exculpatory or impeachment

evidence, how to conduct interrogations and witness interviews,

how to conduct identifications or lineups or showups, how to

conduct arrests, how to write police reports or notes of witness

statements and evidence, and how not to conduct unduly suggestive

identifications or interrogations.

Id., ¶ 86. In spite of this, “[t]he City and CDP decided not to implement any legitimate mechanism

for oversight or punishment of officers,” causing the “[Individual] Defendants to believe that they

could abuse Dwayne Brooks’s [sic] rights and cover up what they did without fear of discipline.”

Id., ¶¶ 86, 88. According to Brooks, the City and officials within the CDP “failed to act to remedy

the abuses described in the preceding paragraphs, despite actual knowledge of the pattern of

misconduct” and similar misconduct “continu[ing] to accumulate over decades.” Id., ¶¶ 90-91.

B. Procedural Background

On September 17, 2024, Plaintiff filed their initial Complaint against the City of Cleveland

and the Individual Defendants. On December 10, 2024, Plaintiff filed their First Amended

Complaint (“Complaint”).5 ECF 5. The Complaint alleges eight causes of action: (1) violations of

42 U.S.C. § 1983 under the Fifth, Sixth, and Fourteenth Amendments for Brady violations and

deprivation of the right to a fair trial; (2) violations of 42 U.S.C. § 1983 under the Fourth and

Fourteenth Amendments for malicious prosecution; (3) reckless breach of duty under Ohio law;

(4) civil liability for criminal acts under Ohio Rev. Code § 2307.60(A)(1); (5) malicious

prosecution under Ohio law; (7) abuse of process under Ohio law; (8) supervisor liability under

42 U.S.C. § 1983 against the Supervisor Defendants6 only; and (8) a Monell policy and practice

claim under 42 U.S.C. § 19837 against the City of Cleveland only. On December 10, 2024, the

5 Plaintiff’s First Amended Complaint has no substantive differences in its claims from the initial Complaint filed

three months earlier. The only difference is that the parties determined that the wrong “Edward Kovacic” had been

identified in the initial Complaint, and thus needed to be substituted out in the First Amended Complaint. No defendant

raises an objection to whether or not the First Amended Complaint relates back to the date of the initial Complaint for

the purposes of calculating a statute of limitations. As such, this Court declines to consider such an issue and will use

the September 17, 2024, date of filing for the initial Complaint as the relevant date for all limitations calculations.

Additionally, because there are no substantive differences between the initial Complaint and the First Amended

Complaint, the Court will simply refer to the latter as the “Complaint.”

6 Out of the Individual Defendants, the Complaint recognizes the following individuals specifically as “Supervisor

Defendants”: John James; John Fransen, the Estate of John Kaminski; and the Estate of Robert Tolliver. See ECF 5,

¶ 5.

7 In limited circumstances, for the purpose of defining a “person” within the context of § 1983, a municipality can be

City of Cleveland and the Individual Defendants filed their Answers. ECF 7-8 (respectively).

On May 19, 2025, the City of Cleveland filed a Motion for Judgment on the Pleadings.

ECF 28. The same day, the Individual Defendants filed a Partial Motion for Judgment on the

Pleadings. ECF 29. Plaintiff filed their Oppositions to both Motions on July 2, 2025. ECF 38-39

(respectively). On July 23, 2025, the City of Cleveland and the Individual Defendants filed replies

in support of their respective Motions for Judgment on the Pleadings. ECF 50-51 (respectively).

Both Motions are now ripe for ruling.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed—but early

enough not to delay trial—a party may move for judgment on the pleadings.” When the motion is

made without any additional evidence beyond what is contained in the complaint and answer, the

Court analyzes a Rule 12(c) motion under the same standard as a Rule 12(b)(6) motion to dismiss.

Barber v. Charter Twp. of Springfield, 31 F.4th 382, 386 (6th Cir. 2022); cf. Bates v. Green Farms

Condo. Ass’n, 958 F.3d 470, 483 (6th Cir. 2020) (noting that a complaint cannot be amended or

supplemented through briefing when evaluating a Rule 12(b)(6) motion). However,

[t]he court can also consider: (1) any documents attached to,

incorporated by, or referred to in the pleadings; (2) documents

attached to the motion for judgment on the pleadings that are

referred to in the complaint and are central to the plaintiff's

allegations, even if not explicitly incorporated by reference; (3)

public records; and (4) matters of which the court may take judicial

notice.

Dudek v. Thomas & Thomas Att'ys & Couns. at L., LLC, 702 F. Supp. 2d 826, 832 (N.D. Ohio

2010) (citing Whittiker v. Deutsche Bank National Trust Co., 605 F.Supp.2d 914, 924-25 (N.D.

found liable. See Monell v. Dept’t of Social Services, 436 U.S. 658, 690 (1978) (“Our analysis of the legislative history

of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local

government units to be included among those persons to whom § 1983 applies.” (emphasis in original)).

Ohio 2009); Greenberg v. Life Ins. Co., 177 F.3d 507, 514 (6th Cir.1999)); see also Fed. R. Civ.

P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for

all purposes.”). This includes references to other lawsuits. See New England Health Care Emps.

Pension Fund v. Ernst & Young, LLP, 336 F.3d 495, 501 (6th Cir. 2003) (finding that the court

could consider a prior complaint when ruling on a motion to dismiss because “such materials are

public records or are otherwise appropriate for the taking of judicial notice”).

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain (1) ‘enough

facts to state a claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of

action’s elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’”

Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555-56 (2007)). The Court must construe the complaint in the light

most favorable to the plaintiff, accept the complaint’s factual allegations as true, and determine

whether plaintiff “undoubtedly can prove no set of facts in support of his claim that would entitle

him to relief.” Engler v. Arnold, 862 F.3d 571, 575 (6th Cir. 2017) (quotation omitted).

Additionally, “[m]ere labels and conclusions are not enough; the allegations must contain ‘factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

While Twombly and Iqbal raised the pleading standard in complaints to “plausibility,” it

did not change the

well-established principle that Federal Rule of Civil Procedure

8(a)(2) requires only a short and plain statement of the claim

showing that the pleader is entitled to relief. Specific facts are not

necessary; the statement need only give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests.

Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (internal quotation marks omitted) (quoting

Erickson v. Pardus, 551 U.S. 89, 93 (2007)).

III. ANALYSIS

A. CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS

The Court begins with the Individual Defendants’ Motion.

1. Threshold Matters

i. Timeliness of All State Law Claims

In their Motion, the Individual Defendants argue that all of Plaintiff’s Ohio law claims

should be considered time-barred. ECF 29-1 at 5-6. Ohio Revised Code § 2744.04(A) requires that

all tort actions brought against political subdivisions be brought within a two-year statute of

limitations. Since this statute also applies to tort actions against employees of political

subdivisions, it necessarily governs Plaintiff’s claims against the Individual Defendants. ECF 29-

1 at 6; see also ECF 51 at 4-10.

In response, Plaintiff argues that the statute only applies to political subdivisions

themselves and not their employees. ECF 39 at 1-4. Therefore, the Individual Defendants should

not get the benefit of the shorter statute of limitations.

There is no doubt that the Individual Defendants, as police officers in the Cleveland Police

Department, are employees of a political subdivision, so the question is whether O.R.C.

§ 2744.04(A) encompasses them or just the city. Plaintiff urges this Court to look to the plain

language of the statute, which, he suggests, gives a clear answer. Section 2744.04(A) states that it

applies to “[a]n action against a political subdivision,” whereas § 2744.04(B) states that it applies

to “complaint[s] filed in a civil action against a political subdivision or an employee of a political

subdivision” (emphasis added). There are other instances in this same section where the Ohio

legislature appears to distinguish between “political subdivision” and “political subdivision or an

employee of a political subdivision.” See ECF 39 at 3 (collecting examples). Plaintiff argues that

this is evidence that, if the Ohio legislature had wanted § 2744.04(A) to apply to employees of a

political subdivision, they surely would have included that language in the text. Its omission from

§ 2744.04(A) is clearly intentional, he argues, and “[t]he Court should decline the Individual

Defendants’ invitation to add words to § 2744.04(A).” ECF 39 at 3.

It is true that the Individual Defendants’ reading of § 2744.04(A) has “not been universally

embraced by the Ohio courts.” Bickerstaff v. Cuyahoga County, Case No. 1:18-cv-1142,

2022 WL 6252835, at *11 (N.D. Ohio Apr. 26, 2022) (citing Pippin v. City of Reynoldsburg, Case

No. 2:17-cv-598, 2019 WL 4738014, at **9–10 (S.D. Ohio Sep. 27, 2019)), report and

recommendation adopted in relevant part, 2022 WL 4102742 (N.D. Ohio Sep. 8, 2022). Neither

has the Ohio Supreme Court expressly weighed in on this issue. See id. at *11 (citing Dolan v. City

of Glouster, Case No. 11CA18, 2014-Ohio-2017, at ¶ 87 n.20 (Ct. App.)). And reading

§ 2744.04(A) to include employees of political subdivisions would appear to be counter to

traditional canons of statutory interpretation.

This situation would ordinarily require this Court to attempt to predict how the Ohio

Supreme Court would rule if presented with this issue. See Whitlock v. FSL Mgmt., LLC,

843 F.3d 1084, 1089 (6th Cir. 2016). However, the Sixth Circuit has already had a chance to weigh

in on this matter. The panel in Kerr v. Pollex expressly noted that “claims against employees of a

political subdivision are subject to the two-year statute of limitations set forth at Ohio Revised

Code § 2744.04(A), which ‘prevails over the general statutes of limitations contained in R.C.

Chapter 2305.’” Case No. 22-cv-3993, 2023 WL 8358798, at *3 (6th Cir. Aug. 11, 2023) (quoting

Davis v. Clark Cnty. Bd. of Comm'rs, 2013-Ohio-2758, ¶ 23, 994 N.E.2d 905, 909 (Ct. App.)

(emphasis in original)). While it is true that unpublished decisions from the Sixth Circuit are not

binding, they are still persuasive. See, e.g., Crump v. Lafler, 657 F.3d 393, 405 (6th Cir. 2011).

Combining this with the weight of authority from Ohio appellate courts also choosing to interpret

§ 2744.04(A) to include employees of political subdivisions, see ECF 51 at 6-7 (collecting cases),

this Court is convinced that it must follow this interpretation.

As such, the claims against the Individual Defendants, as employees of a political

subdivision, are subject to the two-year statute of limitations defined in O.R.C. § 2744.04(A). This

Court will apply this statute of limitations when evaluating the timeliness of Plaintiff’s tort claims.8

ii. False Arrest Claim

While the Complaint does not explicitly raise any claim for false arrest, the Individual

Defendants’ Motion argues “[t]o the extent Plaintiff’s § 1983 claims are based on false arrest or

false imprisonment, the claims are also barred by the statute of limitations.” ECF 29-1 at 8. They

argue this is because, as discussed supra, tort actions against employees of a political subdivision

at subject to a two-year statute of limitations under Ohio law. Id. at 6, 8-9; see also Wallace v.

Kato, 549 U.S. 384, 387 (2007) (affirming that, for § 1983 actions, state law provides the

applicable statute of limitations). “When the claim is for false arrest, a section 1983 cause of action

accrues on the date the arrest was made.” McCune v. City of Grand Rapids, 842 F.2d 903, 906 (6th

Cir. 1988). Since Plaintiff’s Complaint was filed indisputably outside the statute of limitations for

this claim, any claim for false arrest is necessarily time-barred.

In his response to the Individual Defendants’ Motion, Plaintiff “does not oppose judgment

on the pleadings for the false arrest claim only.” ECF 39 at 1.

Thus, the Court grants the Individual Defendants’ Motion to the extent any of Plaintiff’s

8 The Individual Defendants argue that O.R.C. § 2744.04(A) should be applied uniformly to all of Plaintiff’s state law

claims. ECF 29-1 at 6. This is because “Plaintiff has been aware of the state-law claims since at least 2021,” when he

filed his motion for a new trial. Id. As the instant Complaint was filed in 2024, this would place it outside the two-

year statute of limitations, and the state law claims would be time-barred. However, as discussed infra, the accrual

date is not uniform for all of Plaintiff’s state law claims. This Court will thus evaluate the timeliness of each claim

only following an analysis determining the proper accrual date.

§ 1983 claims are based on an alleged false arrest.

2. Tolliver Estate

Though Plaintiff asserts his claims uniformly across each of the Individual Defendants, the

Individual Defendants correctly note that it is not possible for this Court to evaluate the claims in

the same manner. Officer Robert Tolliver, Sr. died on May 16, 2007—seventeen years before this

lawsuit was filed. ECF 8, ¶ 23. “The Application for Authority to Administer his Estate and

Application to Reopen Estate and Appoint Fiduciary were both filed September 16, 2024.” Id.

Plaintiff filed his suit the next day. Id.

Plaintiff’s state law claims are obviously governed by Ohio law on pursuing claims against

estates. Plaintiff’s claims under federal law all are based in 42 U.S.C. § 1983, which does not

provide for how claims should proceed against a decedent’s estate. See Robertson v. Wegmann,

436 U.S. 584, 589 (1978) (citing Moor v. County of Alemeda, 411 U.S. 693, 702 n.14 (1973)). In

these situations, courts are directed to fill in the gap in federal law with state law so long as it is

consistent with the Constitution and federal law. 42 U.S.C. § 1988(a). This evaluation requires

courts to determine: (1) whether a suitable federal rule exists; (2) whether Congress left the gap

for state law to fill; (3) if a gap exists, what is the “most analogous” state rule; and (4) whether the

state rule is “inconsistent with the Constitution and laws of the United States.” Est. of Andrews v.

City of Cleveland, 112 F.4th 436, 439 (6th Cir. 2024) (quoting Wilson v. Garcia, 471 U.S. 261,

267-68 (1985)).

Applying this test, the Sixth Circuit recently held in Estate of Andrews that Ohio’s

presentment statute (O.R.C. § 2117.06) provides the applicable statute of limitations for § 1983

actions against a decedent’s estate. 112 F.4th at 439-40. This Ohio law states that “[a]ll creditors

having claims against an estate” must present their claims “within six months after the death of the

decedent.” O.R.C. § 2117.06(A)-(B). Alternatively, for contingent claims that do not accrue until

after the decedent’s death, they “shall be presented . . . before the expiration of six months after

the date of death of the decedent, or before the expiration of two months after the cause of action

accrues, whichever is later[.]” Id. § 2117.37. If a plaintiff fails to present their claim within the

specified period, “[n]o payment shall be made on the claim and no action shall be maintained on

the claim.” Id. § 2117.06(C).

As previously noted, Officer Tolliver died on May 16, 2007. Any claims that had already

begun to accrue at that time were required to be presented to the estate no later than November 16,

2007. However, at least some of Plaintiff’s claims did not accrue until years later when his

conviction was invalidated. The absolute latest this could have happened was September 22, 2023,

when Judge McGinty of the Cuyahoga Court of Common Pleas dismissed the criminal case against

Plaintiff with prejudice. September 22, 2023 Journal Entry, Case No. CR-88-230828-ZA

(Cuyahoga Cnty. C.P.). Any claims that did not accrue until that date were required to be presented

no later than November 22, 2023. Plaintiff did not file an application to reopen the Tolliver Estate

until September 16, 2024, which was well after this deadline had passed.

Plaintiff does not dispute that Estate of Andrews directs this Court to apply O.R.C.

§ 2117.06 to his claims against the Tolliver Estate.9 However, the presentment statute only states

that “[n]o payment shall be made on [a] claim” that is not timely presented to the estate. Further,

9 Plaintiff urges this Court to ignore this holding in Estate of Andrews, stating that the “opinion improperly conflated

a party’s capacity to be sued with a plaintiff’s ability to recover monetary damages from that party.” ECF 39 at 15.

Plaintiff goes on to argue that O.R.C. § 2117.06 governs only the ability to access an estate’s assets, so it should not

apply when the estate would not be responsible for paying out any potential monetary judgment. While it may be true

that, in most cases, the City would end up indemnifying its employees in judgments connected to official activities, it

is not mandatory for the City to do so. See Estate of Andrews, 112 F.4th at 441 (“The Ohio indemnification statute

still covers only an employee's acts or omissions in connection with a governmental or proprietary function if at the

time of the acts or omissions the employee was acting in good faith and within the scope of employment or official

responsibilities.” (cleaned up) (citing O.R.C. § 2744.07(A)(1)-(2))). Therefore, since Brooks “seeks a remedy that

might require the estates to pay the price, he must follow Ohio's timelines for making claims on an estate.” Id.

Ohio Supreme Court has clarified that “[t]he presentment requirements of R.C. 2117.06 apply only

to those claims which may be allowed as debts payable out of the assets of an estate.” Lewis v.

Steinreich, 1995-Ohio-133, 652 N.E.2d 981, 984 (citing Staley v. Kreinbihl, 89 N.E.2d 593, 599

(Ohio 1949)). Unlike the plaintiff in Estate of Andrews, however, Plaintiff here is seeking both

monetary and declaratory judgment against the Individual Defendants. Since declaratory judgment

may be sought “whether or not further relief is or could be” pursued, this form of relief would

seem to be unbound by the Ohio presentment statute. 22 U.S.C. § 2201(a).

Ordinarily, this Court would refrain from issuing solely a declaratory judgment against a

defendant—particularly a deceased defendant—as it would essentially amount to an advisory

opinion, which is not permitted. However, Plaintiff is also pursuing a § 1983 claim against the

City under a theory of Monell liability. ECF 5, ¶¶ 157-64. In order to successfully pursue a Monell

claim against the City, Plaintiff is required to prove at least one underlying constitutional violation

against him. Cf. Chambers v. Sanders, 63 F.4th 1092, 1101 (6th Cir. 2023) (“As no constitutional

rights violation occurred under the facts alleged, Chambers and Smith's Monell claim was also

properly dismissed.”). It is possible that, ultimately, the only one of the Individual Defendants to

have violated Plaintiff’s constitutional rights is Officer Tolliver. In that case, Plaintiff would have

no chance to succeed on his Monell claim against the City without a declaratory judgment against

Officer Tolliver.

Accordingly, the Court will only dismiss Plaintiff’s claims against the Tolliver Estate to

the extent they seek monetary relief. Claims against the Tolliver Estate may proceed only for

declaratory relief.

3. Reckless Breach of Duty

The Court next turns to Count Three alleging a reckless breach of duty under Ohio law.

The Individual Defendants challenge both the timeliness and merits of Plaintiff’s reckless breach

of duty claim. The Court addresses each argument, separately, below.

i. Timeliness

Individual Defendants first argue that “[a]ny claim for breach of duty arose at the time of

the investigation” which “was conducted in 1987 and 1988[,]” thus rendering this suit, filed in

2024, time-barred under O.R.C. § 2744.04(A)’s two-year statute of limitations. ECF 29-1f at 6. In

opposition, Plaintiff argues that because the Individual Defendants’ breach of duty caused him to

be incarcerated until he was granted a new trial on April 12, 2023, the statute of limitations did not

accrue until then, so his claim is timely.

Important to this determination is understanding what, exactly, Plaintiff is challenging with

his reckless breach of duty claim. Is he challenging actions taken without legal process, or is he

challenging actions taken under the wrongful institution of legal process? See Wallace, 549 U.S.

at 389-90. The Supreme Court has held that claims such as false imprisonment or false arrest are

claims alleging a lack of legal process. Id. at 389. As such, once the plaintiff “becomes held

pursuant to such process—when, for example, he is bound over by a magistrate or arraigned on

charges”—the tort has concluded and accrual for a cause of action begins. Id. (emphasis in

original) (citation omitted). Conversely, claims such as malicious prosecution allege an improper

use of the legal process, and allow plaintiffs to receive damages for confinement imposed pursuant

to the legal process. Heck v. Humphrey, 512 U.S. 477, 484 (1994). A requirement for a malicious

prosecution claim is a termination of the prior criminal proceeding in favor of the criminal

defendant. Id. The Supreme Court has explained that

[t]his requirement avoids parallel litigation over the issues of

probable cause and guilt, and it precludes the possibility of the

claimant succeeding in the tort action after having been convicted in

the underlying criminal prosecution, in contravention of a strong

judicial policy against the creation of two conflicting resolutions

arising out of the same or identical transaction. Furthermore, to

permit a convicted criminal defendant to proceed with a malicious

prosecution claim would permit a collateral attack on the conviction

through the vehicle of a civil suit.

Id. (cleaned up) (quotations omitted).

So which is Plaintiff’s claim for reckless breach of duty more like? In his Complaint,

Plaintiff alleges that the Individual Defendants recklessly breached their duties as police officers

in a variety of manners, including failure to adequately investigate the crime, causing a malicious

prosecution, and committing Brady violations. ECF 5, ¶ 126. This Court finds that Plaintiff’s claim

is one that attacks the validity of his conviction through an improper use of the legal process. The

thrust of Plaintiff’s argument is that the Brady violations were a direct consequence of the

Individual Defendants recklessly breaching their duties, and the Sixth Circuit has previously held

that “[t]he closest common-law analogy to a Brady claim is one for malicious prosecution.” Jordan

v. Blount Cnty., 885 F.3d 413, 415 (6th Cir. 2018). If it were not for the suppressed evidence,

Plaintiff may not have been convicted at his original trial.

The only way to show that these claims actually invalidate any criminal conviction against

Plaintiff is a termination of the criminal proceedings in favor of Plaintiff. The Supreme Court has

held that “termination of the criminal proceedings in favor of a plaintiff” does not encompass all

potential dispositions of the proceedings in favor of the criminal defendant. Rather, it is

specifically limited to those situations such as where “the conviction or sentence has been reversed

on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to

make such determination, or called into question by a federal court's issuance of a writ of habeas

corpus.” Heck, 512 U.S. at 487. Notably absent from this list is mere vacatur of the conviction or

granting a motion for a new trial. That is because neither of those dispositions actually terminate

the criminal proceedings. See King v. Harwood, 852 F.3d 568, 579 (6th Cir. 2017) (holding that

when a guilty plea was vacated and the “case was remanded for trial on the same charges that

formed part of the malicious prosecution,” a claim for malicious prosecution did not accrue until

the indictment was ultimately dismissed); Jordan, 885 F.3d at 415-416 (distinguishing a Heck

invalidation from ordinary vacatur by emphasizing that Heck invalidations terminate the criminal

proceedings by preventing the State from retrying the criminal case). Thus, “[o]nly once the

criminal proceeding has ended in the defendant’s favor, or a resulting conviction has been

invalidated within the meaning of Heck, will the statute of limitations begin to run.” McDonough

v. Smith, 588 U.S. 109, 119-20 (2019) (citation omitted).

None of the situations identified in Heck apply to Plaintiff’s prior criminal conviction, so

the Court looks to when the criminal proceedings against Plaintiff actually ended. Following the

reasoning provided by the Sixth Circuit, the Court specifically looks for when the State was no

longer able to prosecute Plaintiff for the underlying indictment. See, e.g., King, 852 F.3d at 579;

Jordan, 885 F.3d at 415-416. The charges against Plaintiff were dismissed with prejudice on

September 22, 2023. September 22, 2023 Judgment Entry, Case No. CR-88-230828-ZA

(Cuyahoga Cnty. C.P.). He filed his Complaint on September 17, 2024. As such, Plaintiff’s claim

for reckless breach of duty falls within the two-year statute of limitations outlined in O.R.C.

§ 2744.04(A).

ii. Merits

Regardless of timeliness, the Individual Defendants aver that reckless breach of duty is not

a viable claim recognized under Ohio law. ECF 29-1 at 10. In response, Plaintiff asserts that he is

bringing what could be considered a standard breach of duty action, and “[his] incorporation of

the word ‘reckless’ simply conveys that the Individual Defendants’ actions do not merit statutory

immunity” under O.R.C. § 2744.03(A)(6)(b). ECF 39 at 12. Though it is generally well-known

that employees of a political subdivision cannot be sued for ordinary negligence, see, e.g.,

Anderson v. City of Massillon, 2012-Ohio-5711, 983 N.E.2d 266, at ¶ 23, the Ohio Supreme Court

has held that “Ohio law permits plaintiffs to sue and hold liable employees of a political

subdivision if the employees’ acts or omissions in the course and scope of their employment were

wanton or reckless.” Maternal Grandmother v. Hamilton Cnty. Dept. of Job & Fam. Servs.,

2021-Ohio-4096, 193 N.E.3d 536, at ¶ 7 (citing O.R.C. § 2744.03(A)(6)(b)). This does not require

plaintiffs to satisfy any sort of “heightened pleading standard in a case involving

R.C. 2744.03(A)(6)(b)’s exception to immunity for wanton or reckless behavior” and “notice

pleading suffices.” Id., 2021-Ohio-4096, 193 N.E.3d at ¶¶ 9, 17.

As Plaintiff points out in his response, Ohio law recognizes that “law enforcement officers

have a duty to investigate criminal conduct and to develop and maintain evidence of a crime, and

are ‘charged with the duty to prevent crime, preserve the peace, and protect persons and property.’”

Moore v. City of Cleveland, 2017-Ohio-1156, 87 N.E.3d 858, at ¶ 27 (Ct. App.) (quoting State v.

Lunder, 2017-Ohio-84, 80 N.E.3d 1213, at ¶ 18 (Ct. App.)). The Ohio Supreme Court recently

reinforced that officers have an overarching statutory “duty to enforce criminal laws and apprehend

offenders.” Argabrite v. Neer, 2016-Ohio-8374, 75 N.E.3d 161, at ¶ 77 (Pfeifer, J., concurring in

relevant part) (citing State v. White, 2015-Ohio-492, 29 N.E.3d 939, at ¶ 32). But “[t]his duty does

not exist in a vacuum: it exists in tandem with the officers' duty to avoid causing harm wantonly

or recklessly.” Id., 2016-Ohio-8374, 75 N.E.3d, at ¶ 77

Plaintiff’s Complaint states that the Individual Defendants broadly “breached their duty to

investigate the murder and instead suppressed exculpatory evidence to frame [Plaintiff],” detailing

how they worked to suppress certain witness statements and failed to follow up on leads that

suggested someone other than Plaintiff committed the murder. ECF 5 at 4. Plaintiff further alleges

that the “[Individual] Defendants recklessly breached their duties to [Plaintiff], to the victims of

this crime, and to the public” by “letting potentially dangerous criminal suspects loose in the

community to commit crimes while locking up the wrong man[.]” Id., ¶ 126. In consideration of

the low standard required to survive a Rule 12 motion, the Court finds that Plaintiff has sufficiently

alleged that the Individual Defendants both owed a duty to Plaintiff and breached that duty.

This brings the Court to its analysis of whether the Individual Defendants are entitled to

statutory immunity under O.R.C. § 2744.03(A). Although O.R.C. § 2744.03(A) generally

immunizes political subdivisions and employees of political subdivisions from civil liability in

connection with a governmental or proprietary function, “[t]hat immunity is not absolute.”

Maternal Grandmother, 2021-Ohio-4096, 193 N.E.3d, at ¶ 7. Instead, employees of political

subdivisions are not entitled to statutory immunity if “[t]he employee’s actions or omissions were

with malicious purpose, in bad faith, or in a wanton or reckless manner.” O.R.C.

§ 2744.03(A)(6)(b). “Wanton misconduct” is defined as “the failure to exercise any care toward

those to whom a duty of care is owed in circumstances in which there is great probability that harm

will result.” Argabrite, 2016-Ohio-8374, 75 N.E.3d, at ¶ 8 (emphasis in original) (internal

quotation marks omitted) (quoting Anderson, 2012-Ohio-5711, 983 N.E.2d, at paragraph 3 of the

syllabus). Relatedly, “reckless conduct” is defined as “conduct that is characterized by the

conscious disregard of or indifference to a known or obvious risk of harm to another that is

unreasonable under the circumstances and is substantially greater than negligent conduct.” Id.

(internal quotation marks omitted) (quoting Anderson, 2012-Ohio-5711, 983 N.E.2d, at paragraph

4 of the syllabus).

In his Complaint, Plaintiff alleges the Individual Defendants committed several Brady

violations by suppressing evidence, engaged in witness intimidation and coercion, and helped

cover this type of misconduct by their fellow officers. Officer Edward Kovacic is specifically

alleged to have essentially perjured himself by “testif[ying] consistent with his misconduct, rather

than explaining the truth of what happened or the exculpatory aspects of what he knew.” ECF 5,

¶ 45. These allegations, which are entitled to a presumption of truth at this stage, undeniably rise

to the level of “malicious purpose,” “bad faith,” or acting in a “wanton or reckless manner.”

As a secondary issue, the Individual Defendants argue that, even “if such a claim did exist

under Ohio law, a plaintiff must allege how each officer acted in a reckless manner.” ECF 29-1 at

10 (emphasis in original) (citing Moore, 2017-Ohio-1156, 87 N.E.3d 858, at ¶ 29); see also

ECF 51 at 9 (reiterating this argument). Moore is the only case the Individual Defendants cite in

support of this argument—but nowhere in Moore does the court state that plaintiffs are required to

plead with specificity how each individual defendant “acted in a reckless manner.” Instead, the

court in Moore simply happened to analyze officer immunity on an individual basis. Moore,

2017-Ohio-1156, 87 N.E.3d, at ¶ 29 (“We shall consider the R.C. 2744.03(A)(6)(b) immunity

exception with regard to each of the appellees.”). While Plaintiff must ultimately prove individual

liability at trial, the Sixth Circuit has held that a plaintiff can survive summary judgment even if

“unable to definitively identify which officer committed allegedly unconstitutional acts … [if] he

introduces sufficient evidence to place the officer at the scene.” Batson v. Hoover,

788 Fed. App’x. 1017, 1020 (6th Cir. 2019) (citation omitted). This standard is arguably satisfied

when Plaintiff has limited their allegations to a “small group of officers that committed allegedly

unconstitutional acts within each other’s presence.” Fazica v. Jordan, 926 F.3d 283, 292

(6th Cir. 2019). This is plainly the case here, where the Complaint identifies a small group of

specific officers involved in the investigation of Plaintiff, who are all alleged to have engaged in

unlawful misconduct and helped to cover up each other’s unlawful misconduct. At the Rule 12

motion stage, the standard is more lenient than the standard for summary judgment; as such, the

Court finds that Plaintiff has plead sufficient specificity to put the individual officers on notice of

their potential liability.

Accordingly, the Court declines to dismiss Plaintiff’s claim for reckless breach of duty.

4. Civil Liability for Criminal Acts (O.R.C. § 2307.60(A)(1))

Now, the Court turns to Count Four alleging civil liability for criminal acts under O.R.C.

§ 2307.60(A)(1). Under this statute, a plaintiff has a statutory cause of action to recover damages

stemming from criminal acts. While it is well-established that there is no requirement for an

underlying criminal conviction, see Buddenberg v. Weisdack, 2020-Ohio-3832, 161 N.E.3d 603,

at ¶ 11, a plaintiff does need to be able to point to a specific criminal statute that the defendant

allegedly violated, see Jacobson v. Kaforey, 2016-Ohio-8434, 75 N.E.3d 203, at ¶ 10 (noting that

O.R.C. § 2307.60(A)(1) “specifically authorize[s] a civil action for damages based on the violation

of any criminal statute” (emphasis added)). In his Complaint, Plaintiff alleges that the Individual

Defendants violated O.R.C. § 2921.45(A), which, in relevant part, makes it a crime for a “public

servant, under color of the public servant’s office, employment, or authority, [to] knowingly

deprive or conspire or attempt to deprive any person of a constitutional or statutory right.”

Because the Individual Defendants did not raise a challenge on the merits of this claim in

their Motion, the Court accepts that Plaintiff has sufficiently pled facts that, if true, would make

out a claim for civil liability for a criminal act. The only challenge the Individual Defendants bring

to this claim is that it is time-barred.

Plaintiff acknowledges that, applying this statute generally, courts are split as to whether

the one-year or six-year statute of limitations applies. See ECF 39 at 7; see also America’s

Wholesale Outlet LLC v. Eckert, 2024-Ohio-5680, 259 N.E.3d 809, at ¶¶ 54-64 (collecting and

discussing cases). However, as previously discussed, supra section III.A.1.i, Plaintiff’s claims

against the Individual Defendants are also subject to O.R.C. § 2744.04(A). Any state law claims

brought against the Individual Defendants “shall be brought within two years after the cause of

action accrues, or within any applicable shorter period of time for bringing the action provided by

the Revised Code.” O.R.C. § 2744.04(A) (emphasis added). However, the Court need not decide

whether a six-year, two-year, or one-year statute of limitations applies, because it finds that

Plaintiff’s claim for civil liability for criminal acts did not accrue until the charges against him

were dismissed with prejudice on September 22, 2023. Plaintiff filed his Complaint within a year

of this date, so his claim is timely under any of the above-noted statutes of limitations.

Much like its sister court in Buehner v. City of Cleveland, Case No. 1:24-cv-1218,

2025 WL 1756491, at *58 (N.D. Ohio June 24, 2025), this Court finds Ruff v. Runyon,

258 F.3d 498 (6th Cir. 2001), to be instructive on this fact pattern. In Ruff, the plaintiffs discovered,

through a newspaper article in April 1994, that their indictments had been based on false

information presented to the grand jury. Ruff, 258 F.3d at 500. A year later, in April 1995, the

plaintiffs filed motions for a new trial, which the state subsequently granted. Id. at 499-500. Nearly

another year later, on March 26, 1996, the prosecutor opted to dismiss all charges against the

plaintiffs. Id. at 500. On August 28, 1997, the plaintiffs filed a Bivens action against the

government employees responsible for fabricating the evidence. Id. at 499-500. The Sixth Circuit

determined that, even though the plaintiffs had discovered the existence of the fabricated evidence

in April 1994, and certainly knew of that fabricated evidence’s existence by April 1995 with their

motions for a new trial, “[p]laintiffs' injury—being wrongfully convicted—was . . . not known

until the charges against them were dismissed.” Id. at 503. Since the plaintiffs in Ruff were

challenging their wrongful convictions based on the fabricated evidence, the Sixth Circuit found

that “plaintiffs' Bivens claims are analogous to a claim of malicious prosecution, and like a

malicious prosecution claim, the statute does not begin to run until the charges are dismissed.” Id.

Other courts in the Sixth Circuit have since reached similar conclusions in other cases. See

Buehner, 2025 WL 1756491, at *59 n.95 (collecting cases).

While the question of when a statute of limitations for a Bivens action begins to run is

determined by federal law, the Court finds the Sixth Circuit’s reasoning to be sufficiently

analogous, and thus applicable to Plaintiff’s case here. Much like the plaintiffs’ Bivens claim in

Ruff, the underlying criminal act (deprivation of rights through Brady violations) for Plaintiff’s

claim attacks the validity of his conviction. Plaintiff, like his counterparts in Ruff, may have

“discovered” the relevant evidence of rights violations prior to his charges being disposed of, but

Plaintiff did not know of his “injury”—being wrongfully convicted—"until the charges against

[him] were dismissed.” Ruff, 258 F.3d at 503. As discussed previously, supra section III.A.3.i, the

reason why the accrual date is the date of dismissal, rather than the date Plaintiff was granted a

new trial, is because a claim challenging the validity of a criminal conviction “will not accrue

‘until the disposition of any pending criminal [proceedings].’” Id. at 502 (quoting Shamaeizadeh

v. Cunigan, 182 F.3d 391, 399 (6th Cir. 1999), abrogated on other grounds by Wallace, 549 U.S.

at 384).

5. Malicious Prosecution

The Court next turns to Count Five alleging malicious prosecution.

i. Timeliness

It is well established that a claim for malicious prosecution challenges the validity of a

conviction, meaning that it only accrues upon the termination of the underlying criminal

proceedings in favor of the defendant. See Heck v. Humphrey, 512 U.S. 477, 484 (1994); see also

Levering v. Nat’l Bank, 100 N.E. 322, at paragraph 2 of the syllabus (Ohio 1912) (“The right to

sue for malicious prosecution of a civil action accrues upon the rendition in the trial court of a

judgment for the defendant in the action complained of[.]”). Per O.R.C. § 2305.11(A), a claim for

malicious prosecution must be brought within one year of accrual. The charges against Plaintiff

were dismissed with prejudice on September 22, 2023, and the Complaint was filed on September

17, 2024. The Individual Defendants concede that this analysis is correct. ECF 51 at 3.

Accordingly, the Court finds the malicious prosecution claim to be timely.

ii. Merits

The elements required to prove malicious prosecution under Ohio law are: “(1) malice in

instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the

prosecution in favor of the accused.” Froelich v. Ohio Dept. of Mental Health, 2007-Ohio-4161,

871 N.E.2d 1159, at ¶ 10 (quoting Trussell v. Gen. Motors Corp., 559 N.E.2d 733, 736

(Ohio 1990)). The Individual Defendants do not contest the third element; rather, they challenge a

blend of the first two elements.10

Specifically, they argue that “because they did not initiate the prosecution” against

Plaintiff, they cannot be held liable for malicious prosecution as “[a] prosecutor’s independent

charging decision typically breaks the causal chain for malicious-prosecution purposes.”

10 Ohio law embraces the linkage between elements one and two. “In actions for malicious prosecution, while malice

is an essential element, the want of probable cause is the real gist of the action.” Melanowski v. Judy, 131 N.E. 360,

361 (Ohio 1921). For nearly two centuries, Ohio courts have defined probable cause as a “reasonable ground of

suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in the belief that

the person accused is guilty of the offense with which he is charged.” Ash v. Marlow, 20 Ohio 119, 129, 1851 WL 16,

at *6 (1851). In establishing a claim for malicious prosecution, malice can be inferred if defendants “instituted or

continued the prosecution” without such probable cause. See Mayes v. City of Columbus, 664 N.E.2d 1340, 1346 (Ohio

Ct. App. 1995) (“In the absence of evidence showing a basis for the decision, it will appear to have been made without

any basis, i.e., maliciously.” (citation omitted)).

ECF 29-1 at 11 (quoting Novak v. City of Parma, Ohio, 33 F.4th 296, 307 (6th Cir. 2022)). The

Individual Defendants point to Plaintiff’s own allegations that the Individual Defendants

“presented the case to city prosecutors to seek charges[,]” which, in their view, confirms that

prosecutors—not officers—made the charging decisions. Id. at 12 (citing ECF 5, ¶ 36(a)). “If the

Individual Defendants are presenting the case to prosecutors in order to seek charges, then

Individual Defendants are not making independent charging decisions.” Id. Therefore, the claim

should fail as a matter of law.

In response, Plaintiff asserts that the Individual Defendants draw unsupported conclusions

from the mere fact that they presented the case to prosecutors, contending that such presentation

does not necessarily absolve them of responsibility for initiating the prosecution. ECF 39 at 10.

According to Plaintiff, this position oversimplifies the causal chain and ignores the well-

established principle that officers can still be held liable when they provide false or misleading

information that influences a prosecutor’s decision to bring charges. Id. at 11-12.

The Individual Defendants quote Young v. Owens, 577 F. App’x 410, 417 (6th Cir. 2014),

for the proposition that “[defendants] cannot be held liable for malicious prosecution when they

did not make the decision to prosecute the plaintiff.” ECF 29-1 at 11.11 And it is true that,

“[o]rdinarily, the existence of an indictment would preclude a malicious prosecution claim.”

Young, 577 F. App’x at 416; see also September 15, 1988 Journal Entry, Case No.

CR-88-230828-ZA (Cuyahoga Cnty. C.P.) (acknowledging that Plaintiff had received a copy of

the indictment against him). But the plaintiffs in Young failed on their malicious prosecution claim

11 The Court pauses to note that, in addition to Young, the Individual Defendants cited to two other Sixth Circuit cases

to support this proposition. See McKinley v. City of Mansfield, 404 F.3d 418, 444 (6th Cir. 2005); Skousen v. Brighton

High Sch., 305 F.3d 520, 529 (6th Cir. 2002). All three cases that Defendants cite to were analyzing the requirements

for a federal claim of malicious prosecution under § 1983. Nonetheless, Young’s clarification that officer defendants

can still be liable for influencing a prosecution mirrors that of Ohio law, as discussed below.

because they were unable to point to anything in the record supporting their allegation that

defendants gave false testimony to the grand jury. 577 F. App’x at 417. Further, and “[e]qually

important,” plaintiffs there also “fail[ed] to point to any evidence supporting their contention that

the defendants influenced or participated in the decision to prosecute [plaintiffs].” Id. (emphasis

added). That is not the case here.

Indeed, the Sixth Circuit, applying Ohio law, has held the exact opposite of the Individual

Defendants’ contention that a plaintiff’s malicious prosecution claim fails as a matter of law if

defendants “did not initiate the prosecution.” ECF 29-1 at 11. Rather than the scope of a malicious

prosecution claim being limited “solely to those who made the decision to prosecute the plaintiff .

. . liability also extends to those who significantly impacted that decision.” Jones v. City of Elyria,

947 F.3d 905, 918 (6th Cir. 2020).12 In fact, the first element of malicious prosecution is satisfied

if an officer’s investigatory materials knowingly contain misstatements and falsehoods which

ultimately influence the prosecutor’s decision to file charges. Id. (citing Ricky Jackson v. City of

Cleveland, 925 F.3d 793, 820-21 (6th Cir. 2019)); see also Howell v. Cox, 758 F. App'x 480, 483

(6th Cir. 2018) (collecting cases where an “intervening act of a grand jury, judge, or prosecutor

did not break the causal chain” when “the decision-maker relied upon the officer's

misrepresentation, omission, or other wrongdoing when making the decision that deprived the

plaintiff of her liberty.”). In order to break the causal chain and have the prosecutor’s decision be

truly independent, “the intervening act must have occurred after the defendant's conduct and must

not have been reasonably foreseeable to the defendant,” Howell, 758 F. App’x at 483.

12 Although the quoted section of Jones references the court’s analysis of plaintiff’s federal malicious prosecution

claim, Jones later explicitly applies the same analysis to their review of plaintiff’s Ohio law malicious prosecution

claim. See Jones, 947 F.3d at 921 (“As explained above, taking the facts in the light most favorable to Jones, the

officers played a role in ‘instituting’ the prosecution despite lacking probable cause.”).

The Individual Defendants also rely on Johnson v. Moseley, 790 F.3d 649, 655 (6th Cir.

2015),13 for the proposition that “a defendant’s participation must be marked by some kind of

blameworthiness, something beyond mere negligence or innocent mistake, to satisfy the elements

of a malicious prosecution claim.” See ECF 51 at 10. However, much like the plaintiffs in Young,

the plaintiff in Johnson “[did] not even allege that [the domestic violence] accusations were false,

much less that [defendants] participated in the prosecution in any false or misleading way.”

Johnson, 790 F.3d at 656. In dismissing the malicious prosecution claim, the court noted that

“plaintiff has not alleged that either [defendant] was personally involved in the post-arrest

investigation or that either of them actually ‘knew’ of reasons to doubt or question [the domestic

violence] accusations.” Id. at 655-56. The plaintiff did not allege that either defendant “testified

for the prosecution at any stage, much less that either of them testified falsely or recklessly.” Id. at

655. The court distinguished such “neutral participation” with the circumstances in Sykes v.

Anderson, 625 F.3d 294 (6th Cir. 2010), in which the plaintiff clearly established requisite

blameworthiness by alleging how officer defendants (1) “failed to disclose key items of evidence,”

and (2) “made false statements [and] flagrant misrepresentations” when testifying for the

prosecution. Johnson at 655 (citing Sykes v. Anderson, 625 F.3d 294, 301-02, 306-07, 311-17

(6th Cir. 2010)).

Here, Plaintiff has sufficiently alleged that the Individual Defendants “knew of reasons to

doubt or question” Plaintiff’s charges. As explained above, Plaintiff has alleged that the Individual

Defendants are responsible for the Brady violations that plagued his underlying criminal case, as

well as alleging that specific officers acted or testified deliberately to cover up their alleged

13 It should be noted that the Johnson court was reviewing a district court’s dismissal of a plaintiff’s federal claim for

malicious prosecution. However, as noted supra note 12, Ohio law claims for malicious prosecution mirror this

analysis.

misconduct. Therefore, the Court declines to dismiss Count Five against the Individual

Defendants.

6. Abuse of Process

The Court next turns to Count Six alleging an abuse of process under Ohio law.

Plaintiff argues, in the alternative, that even “if there was probable cause and proper form

supporting the criminal proceedings against Plaintiff, these proceedings were nonetheless an

illegal attempt to accomplish an ulterior purpose for which they were not designed.” ECF 5, ¶ 144.

“Abuse of process differs from malicious prosecution in that the former connotes the use of process

properly initiated for improper purposes, while the latter relates to the malicious initiation of a

lawsuit which one has no reasonable chance of winning.” Robb v. Chagrin Lagoons Yacht Club,

1996-Ohio-189, 662 N.E.2d 9, 14 (1996) (cleaned up) (quoting Clermont Env’t Reclamation Co.

v. Hancock, 474 N.E.2d 357, 362 (Ohio Ct. App. 1984)).

To succeed on an abuse of process claim under Ohio law, a plaintiff must show “(1) that a

legal proceeding has been set in motion in proper form and with probable cause; (2) that the

proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not

designed; and (3) that direct damage has resulted from the wrongful use of process.” Yaklevich v.

Kemp, Schaeffer & Rowe Co., L.P.A., 1994-Ohio-503, 626 N.E.2d 115, 118 (1994) (footnotes

omitted). With respect to the second element, “the improper purpose usually takes the form of

coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as

the surrender of property or the payment of money, by the use of the process as a threat or a club.”

Robb, 1996-Ohio-189, 662 N.E.2d at 14 (quotation omitted).

In their Motion, the Individual Defendants argue that, since Plaintiff does not allege that

they intended to achieve any collateral advantage, Plaintiff’s abuse of process claim fails as a

matter of law. ECF 29-1 at 14. Indeed, to survive dismissal of a malicious prosecution claim, the

Sixth Circuit has held that Ohio law requires plaintiffs to plead that alleged ulterior motive or

collateral advantage with at least some level of specificity. See Hahn v. Star Bank, 190 F.3d 708,

718 (6th Cir. 1999) (dismissing plaintiff’s abuse of process claim when plaintiff “simply made

conclusory allegations regarding the defendants' ulterior motives with no facts to support those

contentions”). However, the Complaint only pleads a bare bones description of the alleged abuse

of process. Plaintiff in his complaint states that the Individual Defendants “caused the criminal

prosecution of [Plaintiff], despite knowing about evidence exculpating him, to secure his wrongful

conviction.” ECF 5, ¶ 145 (emphasis added). But “[c]ourts have rejected abuse of process claims

where the allegedly ‘ulterior purpose’ of a criminal prosecution was simply to obtain the

conviction.” Buehner, 2025 WL 1756491 at **61-62 (collecting cases).

Perhaps most importantly, Plaintiff’s Response to the Individual Defendants’ Motion does

not respond at all to the Individual Defendants’ contention that his abuse of process claim fails for

lack of a pleaded ulterior purpose or collateral advantage. See generally ECF 39. Under Sixth

Circuit precedent, such a failure to oppose constitutes waiver. See Humphrey v. U.S. Att’y Gen.

Off., 279 F. App'x 328, 331 (6th Cir. 2008) (“Thus, where, as here, plaintiff has not raised

arguments in the district court by virtue of his failure to oppose defendants' motions to dismiss,

the arguments have been waived.”); Scott v. Tennessee, 878 F.2d 382 (Table), 1989 WL 72470, at

*2 (6th Cir. 1989) (noting “if a plaintiff fails to respond or to otherwise oppose a defendant's

motion, then the district court may deem the plaintiff to have waived opposition to the motion”).

Having waived opposition, Plaintiff cannot now salvage this claim, and the Court therefore

dismisses Count Six against the Individual Defendants.14

14 Because the Court concludes that Plaintiff has failed to plausibly allege an abuse of process claim against the

Individual Defendants, it is unnecessary to address the parties’ statute of limitations arguments as to Count Six. See

B. CLAIMS AGAINST THE CITY OF CLEVELAND

The Court now turns to the City’s Motion.

1. State Law Claims

As a preliminary matter, the Court addresses the Parties’ discussion about Plaintiff’s

Counts Three through Six, which are all state law claims. In its motion, the City briefly addresses

Plaintiff’s Ohio state law claims seemingly out of an abundance of caution, noting that while it

“anticipate[s] that [Plaintiff] will concede the state-law claims against Cleveland,” the Complaint

simply states “Defendants” without distinguishing between the Individual Defendants and the

City. ECF 28-1 at 18 n.4; see also id. at 18-20. In his response, Plaintiff clarifies that he is only

pursuing a Monell claim against the City, and he is not pursuing any state law claims against the

City. See ECF 38 at 19. In light of this clarification, the Court construes Plaintiff’s Complaint as

not raising such claims against the City and therefore need not address the City’s arguments

further. This includes the City’s arguments about political subdivision immunity, the statute of

limitations for state law claims, and the question of punitive damages.

2. Monell Liability15

The Court now turns to Count Eight alleging Monell liability against the City.

There are two elements to a Monell claim: (1) the existence of an underlying constitutional

violation; and (2) a practice or custom of the City that was the moving force behind that

Day v. McDonough, 547 U.S. 198, 210 (2006) (holding that a district court has the inherent power to “determine

whether the interests of justice would be better served” by addressing the merits or dismissing a petition or claim as

time barred (quoting Granberry v. Greer, 481 U.S. 129, 136 (1987))).

15 In addition to the four Monell theories of liability, the City briefly contends that Plaintiff’s claim fails because there

was no underlying constitutional violation, but fails to provide any substantive argument for this assertion. ECF 28-1

at 2. Plaintiff argues that this failure to argue should be construed as a failure to dispute this element, and therefore

the Court should accept that Plaintiff has adequately plead the underlying constitutional violation. ECF 38 at 1.

Regardless of whether or not the City intended to dispute the sufficiency of the pleading on the underlying

constitutional violation, as explained at-length above, the Court concludes that Plaintiff has sufficiently alleged

underlying constitutional violations caused by the Individual Defendants, and accordingly rejects the City’s argument

here.

constitutional violation. There are four theories of liability for proving the second element:

(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.

Kovalchuk v. City of Decherd, 95 F.4th 1035, 1038 (6th Cir. 2024), cert. denied, Case No. 24-70,

145 S.Ct. 274 (Mem) (U.S. Oct. 7, 2024). The parties dispute whether Plaintiff has plausibly

alleged Monell liability against the City under all four theories. See generally ECF 28-1, 38, 50.

Accordingly, the Court will address each theory in-turn.

i. First Monell Theory: Official Policy

The Court begins with whether Plaintiff has sufficiently alleged the existence of an official

policy that was the driving force behind the constitutional violations.

In its Motion, the City argues that Plaintiff has failed to satisfy any of the necessary

elements for this theory. First, the City argues that Plaintiff has failed to identify any specific

official policy. ECF 28-1 at 6-7. Second, the City asserts that Plaintiff has failed to connect any

official policy to the City itself. Id. at 7-8. Third, the City argues that, due to the failure to identify

any official policy and the failure to connect any official policy to the City, Plaintiff has failed to

plausibly establish factual and proximate causation between the policy and the constitutional

violation. Id. at 8-9. Finally, even if such a policy existed, the City argues that Plaintiff has failed

to allege that such a policy was adopted with deliberate indifference.16 Id. at 9.

16 The City attempts to argue that Sixth Circuit precedent requires a plaintiff to “allege that the official policy was

adopted with ‘deliberate indifference’ as to its known or obvious consequences.” ECF 28-1 at 9 (citing Gregory v.

City of Louisville, 444 F.3d 725, 752 (6th Cir. 2006)). However, as explained in the case cited by the City, the

“deliberate indifference” requirement only applies if the alleged official policy is facially constitutional, but

consistently implemented in such a way to result in constitutional violations, with explicit or implicit ratification by

the city policymakers. See Gregory, 444 F.3d at 752. If the plaintiff is alleging that the policy is facially

unconstitutional, they are not required to make such a showing.

Here, the City does not make any mention in its Motion about whether the alleged official policies are facially

unconstitutional or facially lawful, nor does Plaintiff make any specific mention of this either. Plaintiff’s allegations,

To start his response, Plaintiff discusses the historical allegations contained in his

Complaint as related to the City’s police, including decades-long Department of Justice

investigations, third-party studies, and dozens of wrongful conviction exonerations. ECF 38 at

6-8. Plaintiff then asserts that “multiple judges of this Court and in the Sixth Circuit have approved

near-identical Monell allegations from exonerees suing the City and its officers for similar

misconduct which occurred at various points from 1974 through 2007.” Id. at 7-8 (collecting

cases). With that background, Plaintiff goes on to address the “official claim,” arguing that “the

City, through its police homicide division, had an unwritten decades-long official policy. . . in

which police regularly used unconstitutional measures to secure wrongful convictions.” Id. at 8

(quotation omitted). He asserts that the policy was “largely unwritten, though having the force of

a rule.” Id. at 9.

In its response, the City asserts that Plaintiff only makes broad, conclusory allegations, but

fails to provide any sort of details about this alleged official policy. It argues that Plaintiff’s failure

to “identify which officers were subject to these policies, how the policies were communicated, []

the scope of their application . . . [and] whether the City’s purported ‘de facto’ policy applied to

all investigations, homicides or otherwise” dooms his claim under this theory. ECF 50 at 4.

An official policy claim requires the plaintiff to “identify the policy, connect the policy to

the city itself and show that the particular injury was incurred because of the execution of that

policy.” Garner v. Memphis Police Dep't, 8 F.3d 358, 364 (6th Cir. 1993) (quotation omitted),

cert. denied, 510 U.S. 1177 (1994). Despite the City’s assertions that Plaintiff was required to

if true, would appear to allege that any such official policy was facially unconstitutional. But even if the Court viewed

Plaintiff’s Complaint as challenging facially lawful policies being implemented in an unconstitutional manner, the

Court finds that Plaintiff has sufficiently pled deliberate indifference to survive a Rule 12 motion. See Buehner, 2025

WL 1756491, at *68 n.104 (making the same findings regarding a substantively identical set of allegations in the

complaint).

point to written policy records such as legislative actions, the Sixth Circuit has held that plaintiffs

are only required to show “that there were ‘formal rules or understandings—often but not always

committed to writing—that [were] intended to, and [did], establish fixed plans of action to be

followed under similar circumstances consistently and over time.’” Ricky Jackson, 925 F.3d at 829

(alterations in original) (emphasis in original) (quoting Pembaur v. City of Cincinnati,

475 U.S. 469, 480–81 (1986)); see also id. at 830 (“[A] city may be liable under Monell for a

policy of permitting constitutional violations regardless of whether the policy is written[.]”).

Further, Plaintiff identifies specific elements of the alleged official policy, alleging that it included

directives on “withholding, suppressing, or destroying exculpatory evidence; fabricating evidence;

engaging in suggestive identification and lineup procedures; and engaging in leading, coercive,

and unduly suggestive questioning of and contact with witnesses including feeding information to

and threatening or bribing witnesses.” ECF 5, ¶ 63. Plaintiff also pleads that “[t]he police

misconduct alleged in this Complaint was undertaken pursuant to the City of Cleveland’s official

policies, patterns, and practices,” which Plaintiff provides a fairly thorough historical overview of.

Id., ¶ 62; see also generally id., ¶¶ 64-75. And despite the City’s claim to the contrary, see

ECF 28-1 at 8-9, Plaintiff sufficiently alleges causality between the official policy and the already-

established Brady violations in his case.

Like many courts before this one, this Court finds that Plaintiff has sufficiently pled a

Monell claim under an official policy theory of liability.

ii. Second Monell Theory: Ratification.

Next, the Court turns to the second Monell theory and whether the unconstitutional

practices were ratified by a final decision-making authority.

The City begins its Motion by first arguing that Plaintiff has failed to identify a specific

decisionmaker. It contends that a specific individual is necessary, otherwise the Monell claim

would rest on impermissible respondeat superior grounds. ECF 28-1 at 10. In its view, Plaintiff’s

identification of “policymakers for the City and CDP” is too broad and fails to plausibly answer

who these policymakers were, what roles they occupied, and what they were responsible for. Id.

Further, the City argues that Plaintiff has failed to connect an official action taken by a final

decisionmaker with the harm he suffered. Id. at 11.

In response, Plaintiff contends that identification of specific decisionmakers is not

necessary when alleging, as he does, that specific CDP homicide detectives were given de facto

final authority when they were delegated “massive authority” to approve each other’s

unconstitutional actions. ECF 38 at 13. Additionally, Plaintiff argues that the City ratified the

unconstitutional actions by failing to meaningfully investigate and punish allegations of

misconduct. Id. Under these two approaches, Plaintiff avers that he has also sufficiently alleged

causation between the ratification and the unconstitutional actions at issue; he cannot get any more

specific, he says, without discovery. Id. at 15.

In its Reply, the City reiterates that Plaintiff’s failure to identify specific final policymakers

dooms his case, as well as Plaintiff’s failure “to allege a pattern of similar failures to investigate.”

ECF 50 at 6. Finally, the City argues that Plaintiff’s theory of “massive authority” leading to

effective ratification “rests on a fundamental misreading of Monell and its progeny.” Id.

At the outset, it is important to recognize that “[a] municipality may not be held liable

under § 1983 on a respondeat superior theory—in other words, ‘solely because it employs a

tortfeasor.’” D'Ambrosio v. Marino, 747 F.3d 378, 388-89 (6th Cir. 2014) (emphasis in original)

(quoting Monell, 436 U.S. at 691). However, this is not the same as requiring a plaintiff to identify

specific individuals who ratified the unconstitutional misconduct. Rather, “[a] plaintiff can

establish municipal liability by showing that the municipality ratifies the unconstitutional acts of

its employees by failing to meaningfully investigate and punish allegations of unconstitutional

conduct.” Wright v. City of Euclid, 962 F.3d 852, 882 (6th Cir. 2020) (citing Leach v. Shelby Cnty.

Sheriff, 891 F.2d 1241, 1247-48 (6th Cir. 1990)).

Further, “the Sixth Circuit recognizes that, in certain circumstances, police officers may

have final, unreviewable authority to act, effectively, as a final policymaker unconstrained by the

official policies of superiors.” Charles Jackson v. City of Cleveland, 622 F. Supp. 3d 636, 643

(N.D. Ohio 2022) (citing Monistere v. City of Memphis, 115 F. App'x 845, 852 (6th Cir. 2004)).

Indeed, the court in Charles Jackson held that the plaintiff alleging this “longstanding policy of

massive power delegated to subordinate officers, including policing at the individual level[,]” was

sufficient for a claim under the Monell ratification theory to survive at the pleading stage. Id.

(quotation omitted).

The Court finds that Plaintiff has sufficiently plead a ratification theory, although just

barely in the Court’s opinion. In the Complaint, Plaintiff alleged that “the City and CPD have a[n]

[] entrenched history of failing to supervise, investigate, and discipline allegations of officer

misconduct like that at issue here.” ECF 5, ¶ 76. He alleged that

City policy makers and CDP supervisors facilitated a code of silence

within the CDP. In accordance with this code, police department

detectives refused to report, and otherwise lied about, misconduct

committed by their colleagues, including the misconduct at issue in

this case. The City of Cleveland’s training, supervisory, and

disciplinary practices supported this code of silence, by protecting

from discipline officers who engaged in misconduct and teaching

police officers that they must abide by the code.

Id., ¶ 82. Plaintiff goes on to allege that, as a result of this code of silence and failure to investigate

and discipline, “CDP officers came to believe that they may violate the civil rights of members of

the public and cause innocent persons to be charged with serious crimes without fear of

consequences from their leadership or the City,” and specifically “caused the [Individual]

Defendants to believe that they could abuse [Plaintiff’s] rights and cover up what they did without

fear of discipline.” Id., ¶¶ 83, 88.

Viewing these allegations in their totality, and with the presumption of truth afforded to

them at this stage in the proceeding, the Court accordingly declines to dismiss Plaintiff’s Monell

claim under a theory of ratification.

iii. Third Monell Theory: Failure to Train and Discipline.

Next, the Court looks at the third Monell theory and whether there was inadequate training

or supervision.

In its Motion, the City argues that Plaintiff failed to allege that any training was inadequate,

and specifically no allegations about the substance of that allegedly inadequate training (rather

than its form). ECF 28-1 at 12. To the extent Plaintiff did allege any sort of inadequate training,

the City asserts that Plaintiff failed to alleged that the inadequacy was the result of “deliberate

indifference” nor did he allege that the City was “on notice” of any allegedly deficient training. Id.

at 13. Finally, the City argues that, notwithstanding Plaintiff’s failure to sufficiently allege the

previous elements of this theory, Plaintiff also failed to allege causation between the inadequate

training and the unconstitutional misconduct at issue in his case. Id. at 14.

In his Response, Plaintiff avers that he did plausibly allege a theory of inadequate training.

He cites to portions of the Complaint where he discussed, for example, “how CPD failures of

training and oversight were passed down between specific supervising officers within the homicide

division” and provided “specific exemplary evidence and prior cases demonstrating how the City

was on notice of the defects in its training program and the outcomes of its code of silence but

failed to remedy the same.” See ECF 28 at 16 (citing, inter alia, ECF 5, ¶¶ 66, 71-75, 81-82). As

to the deliberate indifference element, Plaintiff notes that notice of a pattern of misconduct is only

one way to satisfy this element, and while he asserts that he has done that sufficiently, Plaintiff

notes that he can also allege that “that the training defects were obvious, or that the constitutional

violations that resulted were foreseeable.” Id. at 17 (citing Brown v. Shaner, 172 F.3d 927, 931

(6th Cir. 1999)).

In its Reply, the City focuses on Plaintiff’s alleged failure to sufficiently plead deliberate

indifference. It asserts that “[a] handful of isolated or subsequent cases does not suffice.” ECF 50

at 10. Moreover, the City argues that, once the cases that post-date the 1987-88 investigation in

this case are excluded, only two sufficiently similar cases are left. Id. at 13. The City similarly

disputes the applicability of the Complaint’s references to testimony in other cases and historical

records and reports. Id. at 13-14. Therefore, the City argues, Plaintiff has failed to plead sufficient

facts that the City was on notice of misconduct such as to constitute deliberate indifference.

To succeed under the third Monell theory for failure to train or inadequate training, “a

plaintiff ‘must establish that: 1) the City's training program was inadequate for the tasks that

officers must perform; 2) the inadequacy was the result of the City's deliberate indifference; and

3) the inadequacy was closely related to or actually caused the injury.’” Ricky Jackson, 925 F.3d

at 834 (quoting Ciminillo v. Streicher, 434 F.3d 461, 469 (6th Cir. 2006)). “When determining

whether a municipality has adequately trained its employees, ‘the focus must be on adequacy of

the training program in relation to the tasks the particular officers must perform.’” Id. (quoting

City of Canton v. Harris, 489 U.S. 378, 390 (1989)).

In his Complaint, Plaintiff alleged that there was an “established practice of failing to

identify, investigate, supervise, or discipline police officers who were repeatedly accused of the

serious misconduct, failing to investigate Brady violations and other wrongful conviction

problems, and facilitating a code of silence within the CDP.” ECF 5, ¶ 83. He further alleged that

Policymakers for the City on matters relating to the CDP knew,

among other things, that there was a need to implement policies and

train, supervise, and discipline police officers related to how to

handle, preserve, and disclose exculpatory or impeachment

evidence, how to conduct interrogations and witness interviews,

how to conduct identifications or lineups or showups, how to

conduct arrests, how to write police reports or notes of witness

statements and evidence, and how not to conduct unduly suggestive

identifications or interrogations.

Id., ¶ 86. In spite of this knowledge, Plaintiff alleges that “[t]he City and CDP decided not to

implement any legitimate mechanism for oversight or punishment of officers who violated their

Brady obligations or peoples’ constitutional rights, or who fabricated evidence or fed information

to witnesses or used suggestive identification procedures or coerced or intimidated witnesses.” Id.

With such an entrenched and widespread practice, the misconduct against Plaintiff and

“constitutional violations alleged herein were a predictable consequence” of this inadequate

training. Id., ¶ 87. These allegations, in their totality, are sufficient to survive a Rule 12 motion.

Moreover, the Court is not persuaded by the City’s arguments that the Complaint’s

references to other cases and historical records are either inapposite or irrelevant. Indeed, the City

correctly notes that

[o]n a Rule 12 motion, a court “may consider the Complaint and any

exhibits attached thereto, public records, items appearing in the

record of the case and exhibits attached to defendant’s motion so

long as they are referred to in the Complaint and are central to the

claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass'n,

528 F.3d 426, 430 (6th Cir. 2008). In addition, “a court may take

judicial notice of other court proceedings without converting the

motion into one for summary judgment.” Buck v. Thomas M. Cooley

Law Sch., 597 F.3d 812, 816 (6th Cir. 2010).

ECF 50 at 12 n.4. However, other cases and instances of alleged and proven misconduct do not

need to be identical to the alleged misconduct in the instant proceeding in order to establish

sufficient notice. See Young v. Kent Cnty. Sheriff’s Dept., Case No. 21-1222, 2022 WL 94990, at

*5 (6th Cir. Jan. 10, 2022) (“A case does not need to be ‘directly on point,’ with identical facts to

put defendants on notice.” (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011))). In his

Complaint, Plaintiff provides more than ample evidence to suggest that, by the time of the

investigation in 1987-88, the City and CPD were at least on constructive notice current training

was inadequate.

Accordingly, the Court declines to dismiss Plaintiff’s Monell claim under a theory of

inadequate training or failure to train.

iv. Fourth Monell Theory: Custom of Tolerance or Indifference.

Finally the Court turns to the fourth Monell theory and whether there was a custom of

tolerance or indifference towards unconstitutional misconduct.

In its Motion, the City argues that Plaintiff failed to allege “a clear and consistent pattern

of illegal activity,” which the City asserts is the requisite standard under Sixth Circuit precedent.

ECF 28-1 at 15. As similarly argued with regard to notice under a failure to train theory, the City

again notes that contemporaneous or subsequent conduct cannot establish a pattern of violations

that would put the City on notice for the purposes of Monell. The City argues that, to the extent

there might have been a pattern, Plaintiff failed to allege that the City actually knew of this pattern.

Id. at 16. The City also reiterates its previous arguments about deliberate indifference and a lack

of causality. Id. at 17-18.

In response, Plaintiff notes that he described in detail several decades-worth of misconduct

sufficiently similar to the alleged misconduct in his own case. ECF 38 at 18. He reiterates his

previous counterarguments in response to the City’s repeated arguments regarding notice,

deliberate indifference, and causation. Id. at 19. Plaintiff specifically pushes back on the City’s

assertion that he failed to plead a sufficient number of examples of prior similar misconduct to

make out a custom claim, emphasizing that “[n]either the Sixth Circuit nor any court has

determined that there is a numeric threshold of prior similar conduct under which a Monell custom

claim falls short of Rule 12.” Id.

In its Reply, the City reiterates many of the same arguments it previously made made

regarding patterns of prior misconduct, deliberate indifference, and causation. ECF 50 at 11-14.

The City also argues that many of Plaintiff’s examples of misconduct post-date his investigation

and conviction, and therefore cannot serve as notice. Id.

In order to succeed on a Monell custom claim, a plaintiff must demonstrate

(1) the existence of a clear and persistent pattern of [illegal activity];

(2) notice or constructive notice on the part of the [municipality];

(3) the [municipality's] tacit approval of the unconstitutional

conduct, such that their deliberate indifference in their failure to act

can be said to amount to an official policy of inaction; and (4) that

the [municipality's] custom was the ‘moving force’ or direct causal

link in the constitutional deprivation.

Stewart v. City of Memphis, 788 F. App’x 341, 346-47 (6th Cir. 2019) (alterations in original)

(quoting Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).

At the outset, the Court agrees with the City that “subsequent conduct cannot establish a

pattern of violations that would provide notice to the municipality and the opportunity to conform

to constitutional dictate.” ECF 28-1 at 15 (cleaned up) (quoting Berry v. Delaware Cnty. Sheriff's

Off., 796 F. App’x 857, 862 (6th Cir. 2019)). Accordingly, the Court will give no weight to any

misconduct alleged to have occurred following Plaintiff’s wrongful conviction for purposes of

placing the City on notice.

Despite this, the Court finds that Plaintiff has sufficiently plead a Monell custom theory.

In his Complaint, Plaintiff describes at least two decades’ worth of similar misconduct prior to his

own wrongful incarceration. See generally ECF 5, ¶¶ 62-92. This includes multiple other cases of

wrongful incarceration involving allegations of Brady violations and other misconduct. It also

includes references to contemporaneous reports and studies detailing how “[t]he problems of

police and community relations are so critical in Cleveland that they warrant immediate and

serious attention leading to the adoption of new concepts, policies, programs, and procedures.” Id.,

¶ 74 (quoting Mayor’s Crime Commission, Report with Recommendations, app. B at 23 (1974)).

As previously noted, the misconduct need not be identical in order to suffice for providing notice.

Relatedly, the Court rejects the City’s argument that, as a matter of law, Plaintiff has pled

an insufficient number of incidents. See ECF 28-1 at 15-16. Even assuming for the sake of

argument that the City’s analysis is correct and Plaintiff has only “plausibly allege[d] . . . at most

. . . two incidents between the 1960s and 1987,” the City is unable to cite any case law supporting

its proposition that two incidents in a twenty-seven year period is facially insufficient. Id. at 16.

Indeed, this is because no such case law exists. Instead, the City can only cite to other cases where,

after a fact-specific analysis, the court determined that the plaintiff had not demonstrated that the

few cited incidents established a pattern—not that, as a matter of law, those incidents were plainly

insufficient to establish a pattern. See Buehner, 2025 WL 1756491, at *73 & n.112 (rejecting the

same argument and admonishing the City for similarly misconstruing case law to inappropriately

suggest only two incidents over a ten-year period was not a pattern as a matter of law). There is no

mathematical formula that there must be a minimum number of incidents in a certain time frame.

Whether Plaintiff is ultimately able to establish a pattern remains to be seen. But even if the City

is correct that there are only two relevant instances in a ten-year period (which Plaintiff disputes),

it is not established as a matter of law that this is plainly insufficient to establish a pattern.

It is certainly possible that, after further discovery, Plaintiff is unable to establish a pattern

or custom; however, the law does not require Plaintiff to prove a minimum number of instances in

a certain time frame.

For the reasons previously stated, see supra Sections III.B.2.i-iii, the Court also finds that

Plaintiff has sufficiently pled notice, deliberate indifference, and causation.

Accordingly, the Court declines to dismiss Plaintiff’s Monell custom claim.

IV. CONCLUSION

For these reasons, the Court: (1) DENIES the City’s Motion; (2) GRANTS IN PART the

Individual Defendants’ Motion as it relates to any federal and state law claims for monetary

judgment against the Tolliver Estate, as well as the abuse of process claim against all Individual

Defendants; and (3) DENIES IN PART the Individual Defendants’ Motion regarding any federal

and state law claims for declaratory judgment against the Tolliver Estate, as well as the remaining

state law claims against the Individual Defendants.

IT IS SO ORDERED.

Dated: August 19, 2025 /s/ Dan Aaron Polster

Dan Aaron Polster

United States District Judge