# Cort v. Thorp

> District Court, S.D. Ohio · September 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11133262

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 4, 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/11133262

## How later opinions describe it (automated extraction)

- concluding that the court did not need to put flesh on the bones of a skeletal argument
- concluding that summary judgment is appropriate when the evidence could not lead the trier of fact to find for the non-moving party
- finding gardening to be among “the intimate activities normally associated with the home’
- explaining that a knock-and-talk “allows an officer without a warrant to enter the curtilage and knock on the front door”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MELROY CORT, et al.,

:
Plaintiffs,

Case No. 2:23-cv-917

v. Chief Judge Sarah D. Morrison

Magistrate Judge Elizabeth A.

Preston Deavers

SHERIFF RANDY THORP, et al.,
:

Defendants.

OPINION AND ORDER
The facts giving rise to this suit are captured on video. The video is difficult
to watch, but it leaves no room for doubt: Pataskala Police Officers Zachary Sarver
and Johnessa Justice violated the constitutional rights of Corporal Melroy Cort and
Samantha Cort.
On October 21, 2022, Licking County Deputy Sheriff Alex Caldwell, Officer
Sarver, and Officer Justice walked into the Corts’ backyard, without a warrant, to
investigate a property dispute. The Officers encountered Cpl. Cort, who lost his legs
when deployed to Iraq with the Marine Corps and relies on a wheelchair to
ambulate. Cpl. Cort asked the Officers to leave—over, and over, and over again. As
the minutes passed, Cpl. Cort grew increasingly frustrated and his pleas grew
increasingly desperate. The Officers stood, silent and unmoving, on the paved path
clearly intended for Cpl. Cort’s wheelchair to safely travel between his home and his
yard. When Cpl. Cort tried to move past them, the Officers did not step out of his
way—they stepped into it. A struggle ensued, as Cpl. Cort tried again to pass the
Officers. Then, Deputy Caldwell and Officer Sarver reached under Cpl. Cort’s
shoulders and lifted him out of his wheelchair. They put him face-down in the grass

and, with their knees on his back, handcuffed the already-immobile Cpl. Cort and
placed him under arrest for assaulting a peace officer.
The Corts filed suit alleging violations of the Fourth Amendment and Ohio
law. The matter is now before the Court on the parties’ cross-Motions for Summary
Judgment. For the reasons below, the Corts’ Motion (ECF No. 47) is GRANTED in
part and DENIED in part. The Pataskala Defendants’ Motion (ECF No. 49) is
DENIED.

I. STATEMENT OF FACTS
A. The Officers responded to a call from the Corts’ neighbor.
Shortly after 4:00p.m. on October 21, 2022, Deputy Caldwell responded to a
report of property damage. The caller, Eleanor White, told Deputy Caldwell that her
neighbor (later discovered to be Cpl. Cort) had damaged her back fence with a
bulldozer. Ms. White explained to Deputy Caldwell:
I had an officer out here about a month or so ago. The guy that lives in
that house up there on Shannon, the new one, he thinks he owns
everything. . . . He’s out here tearing the fence down because he says “I
own all of this.” He thinks he owns it because he’s got an aerial view
[map].
(Caldwell Bodycam, Ex. 6, 3:15.1) Deputy Caldwell walked into Ms. White’s
backyard to evaluate the alleged damage. While there, Cpl. Cort came into view.
(Id., 4:10.) Deputy Caldwell yelled out that he wanted to have a conversation with

Cpl. Cort, but the distance was too great, so Caldwell said, “Just hang on one
second, I’ll come around.” (Id., 4:15.) Cpl. Cort responded, “No, you can stay right
there on that property.” (Id.)
Deputy Caldwell went back into Ms. White’s house and re-engaged Ms. White
in conversation. He ultimately advised her that he could not “dispute the land
without a survey,” but that he could “definitely do something about” the property
damage. (Id., 8:28.) Ms. White admitted that she did not have a survey of her land,

and warned Deputy Caldwell to “watch out” because Cpl. Cort had “an arsenal of
weapons[.]” (Id., 4:40.)
When Officers Sarver and Justice arrived, Deputy Caldwell filled them in:
I’ve dealt with this guy a couple times. He’s not a pleasant person. I tried
talking to him over the fence, he wouldn’t come over to the fence. He was
like, “You can stay right there, you’re not coming on my yard.” So, we’ll
see what happens. . . .
He like damaged two slats on the back fence with a bulldozer. He’s
clearing out all those properties back there. He’s saying that they’re his,
they say they own part of that. It’s been a dispute going on for a while.
But he hit a fence with a bulldozer today and they want charges.
(Id., 11:00.)

1 Video footage from Mrs. Cort’s iPhone and Deputy Caldwell, Officer Sarver,
and Officer Justice’s body-worn cameras was manually filed with the Court. (See
ECF No. 46.) All time-stamps are approximate.
B. The Officers went to the Corts’ house.
The Officers got in their cruisers and drove the short distance to the Corts’
residence, parking in the Corts’ driveway, behind the family SUV. Ud., 13:50.) The
home is situated to the right of the driveway, with the driveway leading to an
attached garage. Ud., 14:05.) A paved walkway extends off either side of the drive—
the right-hand path leads to the front door, and the left-hand path leads to the
backyard:

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Opting for the left-hand path, Deputy Caldwell said, “They were just out back,
so....” Ud., 14:22.)

The path’s border was neatly landscaped with foliage screens.

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14:24.) The Officers walked within feet of the home’s Northeast corner, along
the East wall, and around the Southeast corner, bringing a gated patio and garden
beds into view. Ud.; see also Melroy Cort Decl., ECF 47-2, 94 6-9.)
Cpl. Cort approached the Officers asking, “So, you took it upon yourself to
come onto my property anyway?” (Caldwell Bodycam, 14:55.) The Corts and the
Officers met on the walkway next to garden beds. (/d.)
Over the next three minutes and thirty-five seconds, Cpl. Cort asked the
Officers to leave no fewer than sixty times. The Officers ignored Cpl. Cort’s
requests, which quickly evolved into demands:

Cort: Would you please exit my property?
Caldwell: Alright, so we got...
Cort: Could you please exit my property now?
Caldwell: If we go back over to the driveway, would you talk with me?
Cort: No; get off my property.
Caldwell: So, we receiveda...
Cort: Get off of my property, I do not want to speak to you.
14:57.)
Officer Sarver eventually told Cpl. Cort, “They got a call about a criminal
complaint, he’s following up with it. So, you need to speak to the Deputy about what
happened.” (/d., 16:30.) Cpl. Cort argued with Officer Sarver about whether the
Constitution required him to do so. (U/d., 16:45.) He also approached each Officer to
address their body-worn camera, using his arms to lift himself off the seat of his
chair to say things like, “The bodycam has shown that you refused to get off my
property.” (Sarver Bodycam, Ex. 26, 8:03.) During this exchange, Officer Justice
stood on the walkway; Officer Sarver shifted between the walkway and the grass;
and Deputy Caldwell stood on the grass just off the walkway.
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(See, e.g., Caldwell Bodycam, 17:46.) Throughout, the Officers remained in their
relative positions and made no attempt to exit the Corts’ property.
Cpl. Cort approached Officer Justice and yelled into her bodycam, “Get off my
property, Ma’am. Get off my property, Ma’am. Get off my property, Ma’am,” while
Officer Justice stood motionless, diverting her gaze from Cpl. Cort. U/d., 18:07.) At
the same time, Officer Sarver stayed nearby to Cpl. Cort’s right, and Deputy
Caldwell continued to talk about Ms. White’s fence.

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18:08.)
But then Officer Justice decided to engage, dramatically changing the course
of the interaction, yelling, “You're going to back up out of my face because this is not
how this is gonna go. This is not how this is gonna go.” (/d., 18:13.) Officer Sarver
closed in; so did Deputy Caldwell.

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18:18; see also iPhone Camera, Ex. 37, 2:43.) Cpl. Cort and Officer Sarver
began arguing at close-range.
Sarver: Back up. Back up.
Cort: Do you want me to defend myself?
Sarver: I want you to back up.
(iPhone Camera, 2:45.) Officer Justice continued to yell, “This is what happens is
that we come over and get your side of the story just like we went over and got her
side of the story.” Ud., 2:50.)

Cpl. Cort tried to move forward, but Officer Sarver stuck out his foot and
stopped Cpl. Cort’s front wheel, saying “Back up.” Ud., 2:52.) Cpl. Cort rolled
backwards, turned to Mrs. Cort, and said, “Did you see that?” (/d.) Officer Sarver’s
foot remained in a heel-propped position:

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2:56.) Cpl. Cort attempted to move forward again and said, “Excuse me,
please.” Ud.) Officer Sarver responded, “You gonna run me over?” Ud.) A scrum
broke out, but none of the cameras at the scene steadily captured the event.
After several moments of struggle, Officer Sarver and Deputy Caldwell
grabbed Cpl. Cort’s arms and lifted him from his wheelchair. (Justice Bodycam, Ex.
28, 5:41.) They put Cpl. Cort face-down on the grass and handcuffed him. (Caldwell
Bodycam, 19:35.) Deputy Caldwell advised Cpl. Cort that he was under arrest for
assault on a police officer. (U/d., 20:24.)

C. Deputy Caldwell filed charges with the Licking County
Prosecutor’s Office.
Cpl. Cort was transported to the Licking County jail, where he was held for
three days. Officers Sarver and Justice provided written statements to Deputy
Caldwell. (ECF No. 36-16, PAGEID # 825.) Deputy Caldwell recommended, and the
Licking County Prosecutor’s Office filed, several charges against Cpl. Cort: Criminal
Damaging (F4); Obstructing Official Business (M2); Failure to Disclose Personal
Information (M4); and Resisting Arrest (M2). (See ECF No. 36-11, PAGEID # 804.)

Deputy Caldwell testified that he did not consult Officers Sarver and Justice about
the charges before filing them. (Caldwell Dep., ECF No. 36-1, 92:21–22.) But Officer
Justice testified that the three had a fifteen-minute long, in-person meeting at a
Pataskala Police Station to discuss the incident. (Justice Dep., ECF No. 36-7, 60:21–
61:13.)
Within three weeks, the charges against Cpl. Cort were dismissed. (See Ohio

v. Cort, 22CRB01667 (Licking Cty. Mun. Ct., dismissal entry filed Nov. 16, 2022).)
D. The Corts filed this suit.
In March 2023, the Corts filed this action against Deputy Caldwell and his
superiors in the Licking County Sheriff’s Office (the “Licking County Defendants”),
and Officer Sarver, Officer Justice, and the City of Pataskala (the “Pataskala
Defendants”). (Compl., ECF No. 1.) The Licking County Defendants were dismissed
on October 3, 2024. (ECF No. 35.) The following claims remain against the

Pataskala Defendants:
• Count One: Section 1983, Fourth Amendment (Sarver, Justice, City)
• Count Two: Battery (Sarver, Justice)
• Count Three: False Arrest (Sarver, Justice)
• Count Four: Malicious Prosecution (Sarver, Justice)
• Count Five: Defamation (Sarver, Justice)
• Count Six: Civil Trespass (Sarver, Justice)
• Count Seven: Criminal Conduct (Sarver, Justice)
(Compl.) The Corts and the Pataskala Defendants both move for summary
judgment.
II. LEGAL STANDARD
Summary judgment is appropriate when “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The movant has the burden of establishing there are no genuine
issues of material fact, which may be achieved by demonstrating the nonmoving
party lacks evidence to support an essential element of its claim. Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co.,
12 F.3d 1382, 1388–89 (6th Cir. 1993). The burden then shifts to the nonmoving
party to “set forth specific facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P.
56). When evaluating a motion for summary judgment, the evidence must be viewed
in the light most favorable to the non-moving party.2 Adickes v. S.H. Kress & Co.,

398 U.S. 144, 157 (1970).

2 On cross-motions for summary judgment, like those sub judice, courts
perform a “hat switch”—in reviewing the defendant’s motion, the court accepts
plaintiff’s view of the facts as true and draws all reasonable inferences in favor of
the plaintiff; but in review of the plaintiff’s motion, the court accepts the defendant’s
view of the facts and draws all reasonable inferences in favor of the defendant.
Harris v. City of Saginaw, Mich., 62 F.4th 1028, 1032–33 (6th Cir. 2023).
A genuine issue exists if the nonmoving party can present “significant
probative evidence” to show that “there is [more than] some metaphysical doubt as
to the material facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339–40 (6th Cir.

1993). In other words, “the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Anderson, 477 U.S. at 248; see also Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (concluding that
summary judgment is appropriate when the evidence could not lead the trier of fact
to find for the non-moving party).
III. ANALYSIS
A. Officers Sarver and Justice are liable to the Corts for
unreasonable search and seizure.
The Corts first assert that Officers Sarver and Justice violated their Fourth
Amendment rights. (Compl., ¶¶ 66–70 (citing 42 U.S.C. § 1983).) The Fourth
Amendment protects the “right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures[.]” U.S. CONST.

amend. IV. The Corts’ claim has four sub-parts: first, that the Officers invaded the
curtilage of their home without a warrant; second, that the Officers detained Cpl.
Cort without reasonable suspicion; third, that the Officers arrested Cpl. Cort
without probable cause; and fourth, that the Officers maliciously prosecuted Cpl.
Cort. The Court will address each sub-part in turn.
1. The Officers are liable for invasion of the Corts’ property.
One’s home is at the “very core” of the spaces protected against government

intrusion. Florida v. Jardines, 569 U.S. 1, 6, (2013) (quoting Silverman v. United
States, 365 U.S. 505, 511 (1961)). For Fourth Amendment purposes, “the area
immediately surrounding and associated with the home” (referred to as the
“curtilage”) is considered part of the home. Id. (quoting Oliver v. United States, 466

U.S. 170, 180 (1984)). “When a law enforcement officer physically intrudes on the
curtilage to gather evidence, a search within the meaning of the Fourth Amendment
has occurred.” Collins v. Virginia, 584 U.S. 586, 593 (2018) (citing Jardines, 569
U.S. at 11). A warrantless search of constitutionally protected property is per se
unreasonable “subject only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). Here, neither of the
Officers obtained a warrant before entering the Corts’ property. The question thus

becomes whether the area they traversed was curtilage and whether there was any
applicable warrant exception. The Court finds that it was, and there wasn’t.
a) The Officers invaded the curtilage of the Corts’
home to investigate the neighbor’s complaint.
A scope-of-curtilage inquiry is at once “commonsense,” Morgan v. Fairfield
Cnty., 903 F.3d 553, 561 (6th Cir. 2018) (citing Jardines, 569 U.S. at 7), “general[ly]
complex[],” Daughenbaugh v. Tiffin, 150 F.3d 594, 603 (6th Cir. 1993), and “fact-
intensive,” Morgan., 903 F.3d at 561. Although the Supreme Court has identified
four factors to aid a court’s analysis, it cautions against their “mechanical
application.” United States v. Dunn, 480 U.S. 294, 301 (1987). Looking to those

factors with a focus on whether the space is “so intimately tied to the home itself
that it should be placed under the home’s ‘umbrella’ of Fourth Amendment
protection,” id., the Court is compelled to find that Officers Sarver and Justice
invaded the curtilage of the Corts’ home.
The first factor is “the proximity of the area . . . to the home.” Id. The Officers

followed a paved path to the eventual point of their confrontation with Cpl. Cort.
The path brings the Officers within feet of the home’s Northeast corner and
immediately next to the raised garden beds bordering the home’s gated back patio.
It could hardly be more proximate to the home.
The second factor is “whether the area is included within an enclosure
surrounding the home.” Id. The Officers argue that the path they walked on was not
“fenced in or otherwise enclosed.” (ECF No. 52, PAGEID # 2058–59.) But the law

does not require an artificial enclosure. Daughenbaugh, 150 F.3d at 599. The path is
neatly landscaped on both sides, with closely spaced coniferous trees forming a
screen along the outer border of the path.
The third factor asks the Court to consider the area’s use. Dunn, 480 U.S. at
301. The paved path is clearly intended as a means for Cpl. Cort to safely traverse
the space around his home:
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(ECF No. 41-2, PAGEID # 1368.) And in the back of the house, the only buffer
between the path and the patio is a row of raised garden beds. All of this made plain
that the space was one where private moments of family life were meant to be
enjoyed. See Collins, 584 U.S. at 593-94 (including a “side garden” in a list of areas
“properly considered curtilage”); United States v. Jenkins, 124 F.3d 768, 773 (6th
Cir. 1997) (finding gardening to be among “the intimate activities normally
associated with the home’).
Finally, the Court considers “the steps taken . . . to protect the area from
observation by people passing by.” Dunn, 480 U.S. at 301. The tree screen blocked
the path from the view of any passersby. And the raised beds that became a
backdrop to the confrontation only came into view when the Officers came around to
the back of the house; they were not visible from the driveway.
The area traversed and occupied by the Officers on the Corts’ property was
within the constitutionally protected curtilage of the home. Accord Daughenbaugh,
15

150 F.3d at 603 (noting that “the law seems relatively unambiguous that a backyard
abutting the home constitutes curtilage and receives constitutional protection”).
Unless an exception applies, this warrantless invasion is an unlawful search.

b) The Officers operated without a warrant, but no
exception to the warrant requirement applied.
The Officers argue that they were properly on the Corts’ property under the
knock-and-talk and officer-safety exceptions to the warrant requirement. They were
not.
“A ‘knock and talk’ is an investigative technique in which police, without a
warrant, knock on a suspect’s door and ask to speak with the suspect or for consent
to search.” Morgan, 903 F.3d at 558 n.1. A knock-and-talk allows law enforcement
to do what any other visitor can do: “approach the home by the front path, knock
promptly, wait briefly to be received, and then (absent invitation to linger longer)
leave.” Jardines, 569 U.S. at 8; see also Watson v. Pearson, 928 F.3d 507, 512 (6th

Cir. 2019) (explaining that a knock-and-talk “allows an officer without a warrant to
enter the curtilage and knock on the front door”). From the first, the Officers failed
to adhere to “the terms of th[is] traditional invitation.” Jardines, at 8. The path to
the Corts’ front door extends off the right-side of the driveway; the Officers took the
path extending off the left-side. They did not approach the front door, and so they
did not knock. They met Cpl. Cort in his backyard where he made clear that he
would not voluntarily answer the Officers’ questions and told them to leave. At that

point, the Officers were required by law to leave. They did not.
The Officers also argue that their continued presence was necessary to
ensure officer safety. “To be sure, officer safety can be an exigency justifying
warrantless entry.” Morgan, 903 F.3d at 562. But no such exigency existed here.3 By

the Officers’ own account, almost three minutes passed before they perceived any
threat at all. (See ECF No. 49, PAGEID # 1569.) There can be no dispute about
what transpired in those three minutes: Cpl. Cort directed the Officers,
unambiguously and repeatedly, to get out of his backyard. The Officers ignored his
entreaties. Armed and outfitted in tactical gear, they stood their ground (which was,
in reality, the Corts’ ground) and boasted a legal right to do so—for minutes. What
were the Corts to do, “call the police”? No; “the Bill of Rights exists to protect people

from the power of the government[.]” Morgan, 903 F.3d at 563. The Officers cannot
use a threat arising in reaction to their own unlawful conduct to shield themselves
from accountability for further unlawful conduct. Cf. Kentucky v. King, 563 U.S.
452, 462 (2011) (allowing warrantless entry based on exigency when “the police did
not create the exigency by engaging . . . in conduct that violates the Fourth
Amendment”).

To the extent the Corts’ § 1983 claim against Officers Sarver and Justice is
based on the invasion of the curtilage of their home without a warrant, judgment is
GRANTED in favor of the Corts.

3 The Officers note that they were “warned” the Corts had “an arsenal.” It is
well established that “the mere presence of firearms does not create exigent
circumstances.” Morgan, 903 F.3d at 562 (internal quotation, citation, and
alteration omitted).
2. The Officers are liable for the unlawful detention and
arrest of Cpl. Cort.
Cpl. Cort next asserts that the Officers unlawfully seized his person. The
parties agree that Cpl. Cort was, at some point, seized—but they disagree about
when the seizure occurred. Cpl. Cort argues that he was seized when Officer Sarver
told him he had to answer Deputy Caldwell’s questions. The Officers argue that Cpl.
Cort was not seized until he was handcuffed. As to the time of his seizure, the
undisputable facts compel the Court to agree with Cpl. Cort.

a) Cpl. Cort was seized when Officer Sarver told him
he needed to speak to Deputy Caldwell.
A seizure occurs, for Fourth Amendment purposes, when an officer, “by
means of physical force or show of authority, has in some way restrained the liberty
of” another. United States v. Mendenhall, 446 U.S. 544, 552 (1980) (quoting Terry v.
Ohio, 392 U.S. 1, 19 n.16). One’s liberty is restrained when, “in view of all of the
circumstances surrounding the incident, a reasonable person would have believed
that he was not free to leave.” Id. at 554. The Sixth Circuit has long recognized
“that words alone may be enough to make a reasonable person feel that he would
not be free to leave.” United States v. Richardson, 385 F.3d 625, 629 (6th Cir. 2004);

accord Mendenhall, 446 at 554–55 (listing, as one example of circumstances
indicative of a seizure, “the use of language or tone of voice indicating that
compliance with the officer’s request might be compelled”).
Here, Cpl. Cort met the uniformed and armed Officers on the path behind his
home and asked them to exit his property. He and Deputy Caldwell began talking
over one another—while Deputy Caldwell tried to investigate damage to the fence,
Cpl. Cort asked the Officers to leave. The Officers refused to leave. Instead, they
asked Cpl. Cort whether he would be willing to speak in the driveway or to Officer
Sarver. When Cpl. Cort rejected both proposals, Officer Sarver said:

They got a call about a criminal complaint; he’s following up with it.
So, you need to speak to the Deputy about what happened.
(Ex. 26, 7:20.) At that point, no reasonable person would have believed they were
free to leave.
b) The Officers lacked reasonable suspicion to believe
that Cpl. Cort had committed a crime.
Having concluded that the Officers seized Cpl. Cort’s person when Officer
Sarver told him he needed to speak to Deputy Caldwell, the Court now asks
whether the seizure was lawful. The parties agree that this stage of the encounter
was a Terry stop. Terry allows a brief investigative detention “if the officer has a
reasonable suspicion, supported by articulable facts, that criminal activity has
occurred or is about to occur.” United States v. Davis, 430 F.3d 345, 354 (6th Cir.
2005) (citing Terry v. Ohio, 392 U.S. 1 (1968)). “Reasonable suspicion exists when,
based on the totality of the circumstances, a police officer has a particularized and
objective basis for suspecting the particular person stopped of criminal activity.” Bey

v. Falk, 946 F.3d 304, 313 (6th Cir. 2019) (quoting United States v. Gross, 662 F.3d
393, 399 (6th Cir. 2011)). Although an officer’s “inchoate and unparticularized
suspicion[s]” are not to be given weight, courts should consider “the specific
reasonable inferences which [the officer] is entitled to draw from the facts in light of
his experience.” Terry, 392 U.S. at 27.
The Officers assert that they had reasonable suspicion to believe that Cpl.
Cort committed criminal damaging to his neighbor’s fence. Cpl. Cort argues that the
Officers could not have had reasonable suspicion that he committed criminal

damaging because the Officers knew he believed the fence was on his land.
Ohio law makes it a crime to knowingly “cause, or create a substantial risk
of[,] physical harm to any property of another without the other person’s consent[.]”
Ohio Rev. Code § 2909.06(A)(1). While they were still at Ms. White’s house, Deputy
Caldwell told Officer Sarver and Officer Justice that Ms. White’s complaint was the
latest in a border dispute that had been “going on for a while,” and that Cpl. Cort
believed the fence was on his property. Thus, based on the information known to the

Officers, Cpl. Cort could not have knowingly damaged another’s property—at most,
he either knowingly damaged his own property, or unknowingly damaged
another’s.4 The Officers lacked an objective basis for suspecting Cpl. Cort of
criminal activity, rendering their investigative detention unlawful.
c) Cpl. Cort was arrested when Officer Sarver put his
boot on Cpl. Cort’s wheelchair.
Cpl. Cort asserts that he was also subjected to an unlawful arrest. It is
beyond dispute that “[t]he police must have probable cause to believe that the
person has committed or is committing a crime to make a lawful warrantless
arrest.” United States v. Richardson, 949 F.2d 851, 858 (6th Cir. 1991). And it is
undisputed that Cpl. Cort was, at some point, arrested. But again, the parties

4 Ohio law permits a landowner to “to use self-help to remove encroachments
on his property,” so long as he acts with reasonable care. State v. Schwendeman,
104 N.E.3d 44, 49 (Ohio Ct. App. 2018).
cannot agree on when it occurred. The Officers argue that Cpl. Cort was arrested
when they placed him in handcuffs—after the physical struggle established
probable cause to believe he had assaulted a police officer. See Ohio Rev. Code

§ 2903.13(C)(5)(a). Cpl. Cort argues that his arrest was complete the moment the
Officers overstepped the boundaries of a permissible Terry stop without probable
cause.
“When actions by police exceed the bounds permitted by reasonable
suspicion, [a] seizure becomes an arrest[.]” Richardson, 949 F.2d at 856 (quoting
Dunaway v. New York, 442 U.S. 200, 207 (1979)). But there is no “litmus test to
determine when a Terry stop becomes an arrest.” Id. (citing Florida v. Royer, 460

U.S. 491, 502 (1983) (plurality opinion)). Instead, courts must make a case-by-case
inquiry into “nature of the restraints placed on an individual’s liberty.” Id. Courts
within the Sixth Circuit consider the following three factors to distinguish a Terry
stop from an arrest: (1) the conduct of the police; (2) the characteristics of the
citizen; and (3) the physical surroundings of the encounter. United States v. Grant,
920 F.2d 376 (6th Cir. 1990). Still, the inquiry is an objective one and so focuses on

whether “a reasonable person in the [citizen’s] position would have felt that he was
under arrest or was otherwise deprived of his freedom of action in any significant
way.” United States v. Knox, 839 F.2d 285, 291 (6th Cir. 1988) (internal quotation
and citation omitted).
Here, the Officers stood on the paved path behind the Corts’ home, between
Cpl. Cort and his driveway. Cpl. Cort relied on a wheelchair to travel around his
home because both of his legs had been amputated above the knee. As Cpl. Cort
tried to move forward on the path, Officer Sarver picked up his foot and put it on
the front wheel of the wheelchair, preventing Cpl. Cort from moving forward.5 A

reasonable jury could only conclude that, in that moment, Cpl. Cort’s arrest was
complete.6 That arrest was unsupported by probable cause because the alleged
assault had not yet occurred; it therefore violated Cpl. Cort’s Fourth Amendment
rights.
* * *
To the extent the Corts’ § 1983 claim against Officers Sarver and Justice is
based on the unlawful seizure of Cpl. Cort’s person, judgment is GRANTED in

favor of the Corts.
B. Genuine issues of material fact preclude summary judgment on
Cpl. Cort’s malicious prosecution claim.
Cpl. Cort next asserts a claim for malicious prosecution, in violation of the
Fourth Amendment. To succeed on such a claim, a plaintiff must prove four
elements. First, “that a criminal prosecution was initiated against the plaintiff and
that the defendant made, influenced, or participated in the decision to prosecute.”

5 The Officers argue that Cpl. Cort was not deprived of his liberty because the
paved path extended behind him and led to a basement door. In their view, Cpl.
Cort could have retreated into his home by turning around on the path. But an
arrest does not require complete incapacitation; it requires only a significant
deprivation of freedom of action. Knox, 839 F.2d at 291.
6 Officer Justice argues that she cannot be liable for unlawful arrest because
she did not effect the arrest. But liability can also attach to a non-arresting officer
who did not intervene when she had “reason to question whether probable cause
existed[.]” Harris, 62 F.4th at 1036.
Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (cleaned up). Second, “that
there was a lack of probable cause for the criminal prosecution[.]” Id. Third, that the
plaintiff suffered a deprivation of liberty as a consequence of the legal proceeding,

apart from the initial seizure. Id. at 108–09. And fourth, that the criminal
proceeding resolved in the plaintiff’s favor. Id. at 109. Only the first element is at
issue here.
The parties dispute whether the Officers “made, influenced, or participated in
the decision” to charge Cpl. Cort. On this point, the Sixth Circuit has clarified:
“Under the first element, an investigating officer does not escape
liability just because someone else (e.g., the prosecutor) made the actual
decision to prosecute, so long as the plaintiff can show that the officer
influenced or participated in the decision to prosecute.” “Providing
reports, affidavits, or other investigative materials containing
falsehoods, omissions, or misstatements to a prosecutor can constitute
participation when (1) those materials formed the basis for the charge,”
and “(2) the falsehoods, omissions, or misstatements were made
deliberately or with reckless disregard for the truth.”
Tlapanco v. Elges, 969 F.3d 638, 655 (6th Cir. 2020) (quoting Sampson v. Village of
Mackinaw City, 685 F. App’x 407, 417 (6th Cir. 2017) (internal quotation omitted)
and Meeks v. City of Detroit, 727 F. App’x 171, 178 (6th Cir. 2018)). The Officers
argue that the charging decision was made by Licking County officials. Cpl. Cort
counters that Officer Justice testified that she and Officer Sarver discussed the
charges with Deputy Caldwell before they were filed, and that the Officers’
statements contained falsehoods that formed the basis of the charges—namely, that
Cpl. Cort assaulted the Officers with his wheelchair and spit water on Deputy
Caldwell. These constitute genuine issues of material fact that must be resolved by
a jury.
Thus, to the extent the Corts’ § 1983 claim against Officers Sarver and
Justice is based on the malicious prosecution of Cpl. Cort, summary judgment is
DENIED.

C. Genuine issues of material fact preclude summary judgment
against the City of Pataskala.
The Corts also assert constitutional claims against the City of Pataskala. But
§ 1983 does not “incorporate doctrines of vicarious liability.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 479 (1986). Accordingly, “[a] plaintiff raising a municipal
liability claim under § 1983 must demonstrate that the alleged federal violation
occurred because of a municipal policy or custom.” Burgess v. Fischer, 735 F.3d 462,
478 (6th Cir. 2013) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)).
“A plaintiff asserting a section 1983 claim on the basis of a municipal custom or
policy must ‘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.’” Graham

v. Cty. of Washtenaw, 358 F.3d 377, 383 (6th Cir. 2004) (quoting Garner v. Memphis
Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993), cert. denied, 510 U.S. 1177 (1994)).
“There must be a direct causal link between the policy and the alleged
constitutional violation.” Id. (internal quotation and citation omitted). In other
words, the plaintiff must show that “through its deliberate conduct, the
municipality was the ‘moving force’ behind the injury alleged.” Wright v. City of

Euclid, Ohio, 962 F.3d 852, 879–80 (6th Cir. 2020) (quoting Alman v. Reed, 703 F.3d
887, 903 (6th Cir. 2013)).
A municipal policy or custom may be proved by four methods: (1) an official
policy or legislative enactment; (2) ratification of illegal acts by an official with final
decision-making authority; (3) inadequate training or supervision; or (4) a custom of

tolerance or acquiescence of constitutional violations. See Burgess, 735 F.3d at 478
(citation omitted). Pataskala argues that the Corts fail to present evidence sufficient
for a reasonable jury to find in their favor. As to the ratification theory, the Court
disagrees.
Under the ratification theory of Monell liability, if a municipal officer with
final decision-making authority “approve[s] a subordinate’s decision and the basis
for it, [the] ratification would be chargeable to the municipality[.]” City of St. Louis

v. Prapotnik, 485 U.S. 112, 127 (1988). “Ratification of a subordinate’s action
requires more than acquiescence—it requires affirmative approval of a particular
decision made by a subordinate.” Feliciano v. City of Cleveland, 988 F.2d 649, 656
(6th Cir. 1993) (citation omitted). Even if it is shown that a municipality
subsequently ratified a decision, a plaintiff must still “prove that the ratification
was a ‘moving force’ in causing the constitutional violation.” Id. at 656 n.6 (quoting

Williams v. Ellington, 936 F.2d 881, 885 (6th Cir. 1991)).
In a sworn affidavit submitted in support of the Pataskala Defendants’
Motion for Summary Judgment, Pataskala Chief of Police Bruce Brooks
affirmatively approved the Officers’ conduct on October 21, 2022, and admitted that
his decision on the matter was final. (See Brooks Aff., ECF No. 49-5, ¶¶ 23–26.) But
neither party addresses, or puts forth evidence establishing, whether Chief Brooks’s
post-incident ratification was a moving force behind Cpl. Cort’s injury. This
question must also be put to a jury.
D. State Law Claims
The Officers next argue that they enjoy statutory immunity from the Corts’

state law claims. “Ohio provides statutory immunity from suit to its police officers
unless, among other things, the officer’s ‘acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner.’” Stewart v. City of Euclid,
Ohio, 907 F.3d 667, 676 (6th Cir. 2020) (quoting Ohio Rev. Code § 2744.03(A)(6)(b)).
“Wanton misconduct is 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.” Anderson v. Massillon, 983 N.E.2d 266, 388 (Ohio 2012). Meanwhile,
“[r]eckless conduct 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. The Sixth
Circuit has held that “officers act in a ‘wanton or reckless’ manner when they
violate an individual’s clearly established constitutional rights.” Heeter v. Bowers,
99 F.4th 900, 922 (6th Cir. 2024) (further citation omitted).

The Court has already concluded that the Officers violated the Corts’ Fourth
Amendment rights against unreasonable search of property, detention without
reasonable suspicion, and arrest without probable cause. Those federal claims
correspond to the State law claims of false arrest and trespass. Thus, as to those
claims, the Officers are not entitled to statutory immunity.
1. Battery
Cpl. Cort first asserts a claim for civil battery against the Officers. “A person
is subject to liability for battery when he acts intending to cause a harmful or
offensive contact, and when a harmful contact results.” Love v. City of Port Clinton,

524 N.E.2d 166, 167 (Ohio 1988) (citing Restatement (Second) of Torts, § 13 (A.L.I.
1965)). When not privileged, handcuffing “plainly” constitutes a battery. Id.
Whether Officer Sarver was privileged in handcuffing Cpl. Cort turns on whether
Cpl. Cort assaulted the Officers with his wheelchair. Even though he was under
unlawful arrest, Cpl. Cort was not privileged to assault the Officers. Cf. City of
Columbus v. Fraley, 324 N.E.2d 735, 736 (syllabus) (Ohio 1975) (“In the absence of

excessive or unnecessary force by an arresting officer, a private citizen may not use
force to resist arrest by one he knows, or has good reason to believe, is an
authorized police officer engaged in the performance of his duties, whether or not
the arrest is illegal under the circumstances.”). So, if Cpl. Cort did “ram” the
Officers with his wheelchair at some point before he was handcuffed, the
handcuffing itself may have been privileged contact. Neither the testimony nor the
video evidence in the record clearly establishes whether Cpl. Cort “rammed” the

Officers with his wheelchair. The question must be submitted to a jury.
2. False Arrest
Cpl. Cort next asserts a state law claim for false arrest. “The essence of the
tort of false arrest is the depriving of a person of his or her liberty without lawful
justification. Specifically, a plaintiff must show only that he or she was detained
and that the detention was unlawful.” Thacker v. City of Columbus, 328 F.3d 244,
261 (6th Cir. 2003) (quoting Tucker v. Kroger Co., 726 N.E.2d 1111, 1115 (Ohio Ct.
App. 1999)). The Court has already concluded that the Officers arrested Cpl. Cort
without probable cause. Thus, summary judgment on the state law counterpart is

GRANTED to Cpl. Cort.
3. Malicious Prosecution
Under Ohio law, the elements of a malicious prosecution claim are “(1) malice
in instituting or continuing the prosecution, (2) lack of probable cause, and
(3) termination of the prosecution in favor of the defendant.” Rogers v. Barbera, 164
N.E.2d 162, 163 (syllabus) (Ohio 1960). Despite appearances, the first element does
not require a showing of subjective malice—instead, “if the lack of probable cause is

demonstrated, ‘the legal inference may be drawn that the proceedings were
actuated by malice.’” Thacker v. City of Columbus, 328 F.3d 244, 261 (6th Cir. 2003)
(quoting Melanowski v. Judy, 131 N.E. 360, 160 (syllabus) (Ohio 1921)). Still,
whether the Officers engaged in any actionable conduct with respect to Cpl. Cort’s
prosecution, and whether any such conduct is entitled to statutory immunity, are
questions for a jury.
4. Defamation

Cpl. Cort next asserts a claim for defamation under Ohio law. To succeed on
an Ohio defamation claim, a plaintiff must show
(1) that a false statement of fact was made, (2) that the statement was
defamatory, (3) that the statement was published, (4) that the plaintiff
suffered injury as a proximate result of the publication, and (5) that the
defendant acted with the requisite degree of fault in publishing the
statement.
Croce v. New York Times Co., 345 F. Supp. 3d 961, 973–74 (S.D. Ohio 2018)
(Graham, J.), aff'd, 930 F.3d 787 (6th Cir. 2019) (quoting Am. Chem. Soc. v.
Leadscope, Inc., 978 N.E.2d 832, 852 (2012)). Cpl. Cort alleges that the Officers’

reports contained false statements about him “ramming” them with his wheelchair
and spitting water on Deputy Caldwell. Nothing in the record evidence—including
the various angles of video footage—clearly establishes whether these statements
are true or false. The issue thus must be put to a jury.
5. Civil Trespass
Under Ohio law, the tort of “trespass upon real property occurs when a
person, without authority or privilege, physically invades or unlawfully enters the

private premises of another whereby damages directly ensue.” Apel v. Katz, 697
N.E.2d 600, 607 (Ohio 1998) (internal quotation and citation omitted). Having found
that the Officers entered the curtilage of the Corts’ property without a warrant,
consent, or exigency, summary judgment on the civil trespass claim is GRANTED
to the Corts.
6. Criminal Conduct
Finally, the Corts assert a claim to recover civil damages for criminal

conduct. Ohio Revised Code § 2307.60(A)(1) provides that “[a]nyone injured in
person or property by a criminal act has, and may recover full damages in, a civil
action unless specifically excepted by law.” See Jacobson v. Kaforey, 75 N.E.3d 203,
205 (Ohio 2016). The Corts assert that the Officers committed three criminal acts
upon which they seek to recover in damages: (i) deprivation of civil rights under
Ohio Rev. Code § 2921.45; (ii) false incrimination under Ohio Rev. Code § 2921.13;
and (iii) criminal trespass under Ohio Rev. Code § 2911.21. The Corts’ only
argument for summary judgment on this claim is that the underlying crimes “track
the elements of the [civil] claims described above.” (ECF No. 47, PAGEID # 1530.)

Because the Corts concede that this claim is duplicative of those already discussed,
the claim is DISMISSED. Cf., McPherson v. Kelsey, 125 F.3d 989, 996 (6th Cir.
1997) (concluding that the court did not need to put flesh on the bones of a skeletal
argument).
IV. CONCLUSION
For the reasons set forth above, the Pataskala Defendants’ Motion for
Summary Judgment (ECF No. 49) is DENIED and the Corts’ Motion for Summary

Judgment (ECF No. 47) is GRANTED in part and DENIED in part.
The following issues remain for trial:
• Count One: Section 1983, Fourth Amendment
o Unlawful Search — Damages
o Unlawful Detention — Damages
o Unlawful Arrest — Damages
o Malicious Prosecution — Liability and damages

o Municipal Liability — Liability and damages
• Count Two: Battery — Damages
• Count Three: False Arrest — Damages
• Count Four: Malicious Prosecution — Liability and damages
• Count Five: Defamation — Liability and damages
• Count Six: Civil Trespass — Damages

IT IS SO ORDERED.

/s/ Sarah D. Morrison
SARAH D. MORRISON, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11133262. Public record. Not legal advice.