# Brooks v. City of Cleveland

> District Court, N.D. Ohio · August 19, 2025

URL: https://www.frixlaw.com/law-library/cases/11123709

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** August 19, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11123709

## How later opinions describe it (automated extraction)

- noting that a complaint cannot be amended or supplemented through briefing when evaluating a Rule 12(b)(6) motion
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11123709. Public record. Not legal advice.