Jacobs

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JASON JACOBS,

Plaintiff,

Vv. Case No. 3:24-cv-233

MIAMI CNTY., OHIO, et Judge Walter H. Rice

al, □

Defendants. :

DECISION AND ENTRY SUSTAINING MOTION FOR SUMMARY JUDGMENT OF

DEFENDANTS MIAMI COUNTY, OHIO, DAKOTA BRISSET, AND BRAD

BLACKBURN (DOC. #47) AND OVERRULING MOTION FOR PARTIAL SUMMARY

JUDGMENT OF PLAINTIFF JASON JACOBS (DOC. #49); JUDGMENT TO ENTER IN

FAVOR OF DEFENDANTS AND AGAINST PLAINTIFF; TERMINATION ENTRY

This matter is before the Court on the Motion for Summary Judgment of

Defendants Miami County, Ohio, Dakota Brisset, and Brad Blackburn (Defendants’

Motion, Doc. #47) and the Motion for Partial Summary Judgment of Plaintiff Jason

Jacobs (Plaintiff's Motion, Doc. #49). For the reasons set forth below, Plaintiff's

Motion is OVERRULED and Defendants’ Motion is SUSTAINED.

I. Factual Background and Procedural History

A. Undisputed Facts

The volume of music played by Plaintiff at his property was a longstanding

source of tension between Plaintiff and his neighbors, specifically his next-door

neighbors, Michael Then and Leslie Kodysz-Then (collectively “the Thens”). (J.

Jacobs Dep., Doc. #38-1, PAGEID 303-04). The Thens made several complaints to

the Miami County, Ohio, Sheriff’s Department (“Sheriff”) from July 2022 through

September 2023. (See, e.g., Incident Reports, Doc. #41-2, PAGEID 446-48; Doc.

#41-3, PAGEID 449-53; Doc. #41-4, PAGEID 454-61). Miami County Sheriff Dave

Duchak conducted a mediation between Plaintiff and the Thens in May 2023. (D.

Duchak Depo., Doc. #40-1, PAGEID 399-401).

However, the Thens called the Sheriff on September 21, 2023, again

complaining of Plaintiff playing loud music; for the first time, the Thens

complained of Plaintiff playing music with explicit and racially-charged language.

(Doc. #41-4, PAGEID 458). Sheriff Deputy L.B. Stanaford watched the surveillance

video taken by the Thens, and “heard extremely loud music and the word ‘fuck’

could be heard multiple times.” (/d.). On September 22, 2023, Stanaford provided

the details to Miami County Municipal Prosecutor Jared Chamberlain, who

advised Stanaford that, based on the information provided, Plaintiff could be

charged with disorderly conduct. (/d. at PAGEID 459). Later that day, Stanaford

provided Plaintiff with a verbal warning about potential criminal liability. (/a.).

On November 7, 2023, the Thens again called the Miami County Sheriff

complaining about the music at Plaintiff's house. (Incident Report, Doc. #41-5,

PAGEID 469). Sheriff Deputies Dakota.Brisset and Brad Blackburn responded.

The Thens told Brisset and Blackburn that the music played by Plaintiff was

“‘racist,’ ‘sexist,’ and [contained] lyrics outlining people being murdered[.]” (/d.).

Brisset and Blackburn interviewed Plaintiff, and Brisset told Plaintiff that he would

be speaking to the Prosecutor’s Office about a potential charge of disorderly

conduct, based on the “grossly abusive language” of the music being played. (/d.

at PAGEID 469-70). Blackburn informed Plaintiff that there was no applicable

noise ordinance, but that it was the vulgar nature of the music that might subject

him to liability for disorderly conduct. (Body Cam Video, 9:20-9:29, 29:50-30:13).

Logan admitted to Blackburn that he was the one playing profane music. (Body

Cam Video, 32:20). Plaintiff, in turn, told Blackburn that, as “a grown adult,”

Logan could be issued the warning. (Body Cam Video, 35:30-35:35).

Blackburn took statements from five witnesses in the neighborhood, all of

whom described the loud, disruptive music from Plaintiff's house, and Brisset

received a folder from the Thens containing additional video evidence. (Doc. #41-

5, PAGEID 489-506). Brisset took this information to a Municipal Prosecutor, who

advised him to file the summons against Plaintiff. (Trial Tr., Doc. #42-1, PAGEID

528). Duchak agreed with the decision to file the summons, premised on the idea

that Plaintiff, as the head of household, was responsible for what took place on his

property. (Doc. #40-1, PAGEID 432). On November 28, 2023, Brisset and

Blackburn returned to Plaintiff's house to issue the citation against him for

disorderly conduct in violation of OHIO REV. CoDE 8 2917.11(A)(2) (“the statute”).

(Doc. #47, PAGEID 822, citing Citation Doc. #44-1, PAGEID 737). This was the only

disorderly conduct citation issued by Brisset, Blackburn, or Duchak with respect to

loud music, and the trial judge dismissed the charge, since the prosecution

produced no evidence that Plaintiff was the person playing the music. (Doc. #40-

1, PAGEID 419-20; Doc. #42-1, PAGEID 704; Doc. #46-1, PAGEID 799; Resp. to Disc.,

Doc. #48-1, PAGEID 844-45).

B. Litigation History

On August 23, 2024, Plaintiff filed suit against Miami County and Brisset

and Blackburn in both their individual and official capacities. (Compl., Doc. #1,

PAGEID 1). Plaintiff filed an Amended Complaint on February 14, 2025, adding

State of Ohio Attorney General Dave Yost as a Defendant. (Doc .#14) Therein, he

raises a facial challenge to the Criminal Statute against all Defendants (Claim

One), alleging that the statute’s prohibition on “offensively coarse utterance[s]”

and “grossly abusive language” is viewpoint based, vague, and overbroad, in

violation of the First Amendment. (/d. at PAGEID 83, 36-37). Plaintiff also

raises an “as-applied” challenge (Claim Two), claiming that, by issuing the

citation, “Defendants were not acting in the public’s interest but were rather

acting in bad faith to retaliate against Jacobs for offending their sensibilities” (/d.

at PAGEID 85, 7 53), and “Defendants’ actions were aimed at silencing Jacobs and

deterring him from exercising his right to free speech.” (/d. at 7 54). In Claim

Three, Plaintiff raises an additional “as-applied” challenge, asserting that the

statute violates his First Amendment right to free association. Plaintiff alleges that

his son was the one who made the choice of the content and volume of the music

played (/d. at PAGEID 82, { 26), but that “Defendants targeted and punished

Jacobs for nothing other than his association with his son.” (/d. at PAGEID 86, □

65). Finally, Plaintiff accuses all Defendants of malicious arrest and prosecution

(Claim Four), in violation of the Fourth Amendment. (/d. at PAGEID 87, {ff 71-79).

Yost was dismissed from the case on May 15, 2025. (Joint Stip. Of Dismissal, Doc.

#24, PAGEID 152).

On November 3, 2025, Defendants moved for summary judgment, arguing

that “[b]efore even reaching the merits, this Court should dispose of the individual

capacity § 1983 claims because of Plaintiff’s inappropriate ‘group pleading.’”

Specifically, Defendants claim that Plaintiff failed to designate any facts as to how

Brisset and Blackburn individually violated Plaintiff's constitutional rights, and

that, consequently, Plaintiff's 42 U.S.C. § 1983 suit cannot be sustained against

those defendants in their individual capacities. (Doc. #47, PAGEID 823, citing Blick

v. Ann Arbor Pub. Sch. Dist., 105 F.4th 868, 876 (6th Cir. 2024); Terrance v.

Northville Reg‘ Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002)). Moreover,

Defendants argue that Brisset and Blackburn are entitled to qualified immunity,

because through their actions, “they were merely enforcing a properly enacted

statute with prior, prosecutorial approval.” (/d., citing Vaduva v. City of Xenia, 780

F. App’x 331, 336-338 (6th Cir. 2019); Doc. #40-1, PAGEID 408; B. Blackburn Dep.,

Doc. #44, PAGEID 723, 726).

Defendants raise several arguments as to why Plaintiff's claims against

them are barred as matters of law. Defendants specifically argue that, to the

extent Plaintiff lacks standing to seek injunctive or declaratory relief as to Claim

One, since the alleged injuries of his arrest and prosecution have already

occurred, there is no imminent, impending injury, and .”Plaintiff here ‘has not

alleged that he intends in the future to engage in conduct’ that R.C. 2917.11(A)(2)

‘currently prohibits.” (Doc. #47, PAGEID 824, quoting Vaduva, 780 F. App’x at

339). “Because Plaintiff does not present a proper ‘occasion’ to issue an

injunction or declaratory judgment,” and because Plaintiff may not recover money

damages in a facial challenge, “he cannot prevail on ‘Count I’ of his Amended

Complaint.” (/d. at PAGEID 825, citing Green v. Mansour, 474 U.S. 64, 73 (1985);

Blick, 105 F.4th at 880)). Defendants claim, moreover, that Plaintiff has failed to

demonstrate any evidence that would “establish[] that no set of circumstances

exists under which the Act would be valid, /e., that the law is unconstitutional in

all of its applications”. (/d. at PAGEID 826, quoting Wash. St. Grange v. Wash. St.

Republican Party, 552 U.S. 442, 449 (2008) (internal quotation marks omitted)).

Accordingly, Defendants conclude, Plaintiff cannot rebut the heavy presumption

of constitutionality, and cannot succeed on a facial challenge, even assuming

arguendo that he has standing. (/a., quoting State v. Carrick, 131 Ohio St. 3d 340,

2012-Ohio0-608, 12, 20; Fabrey v. McDonald Vill. Police Dep’t , 70 Ohio St. 3d

351, 352 (1994)).

Defendants argue that “the content neutral statute was not applied to

Plaintiff ‘in a viewpoint specific manner,” and, thus, Plaintiff's as-applied

challenge fails. (Doc. #47, PAGEID 827, citing Oswald v. Lakota Loc. Sch. Bd., 744

F. Supp.3d 843, 856, 858 (S.D. Ohio 2024)). Specifically, Defendants assert, the

undisputed evidence shows that Blackburn and Brisset issued the citation to

Plaintiff for unreasonable noise, rather than the vulgarity of any music, and that

Plaintiff's speculation to the contrary is insufficient to overcome summary

judgment. (/d. at PAGEID 827-28, citing Doc. #40-1, PAGEID 412, 417; Doc. #44,

PAGEID 721, 730). Moreover, Defendants argue that Brisset and Blackburn are

entitled to qualified immunity, since the right to play music at an unreasonable

volume—in contravention of a duly-enacted statute —was not clearly established

at the time the citation was issued. (/d. at PAGEID 828, citing Michigan v.

DeFillippo, 443 US. 31, 38 (1979); Citizens in Charge, Inc. v. Husted, 810 F.3d 437,

441 (6th Cir. 2016)). The prosecutor’s decision to charge Plaintiff with violating the

statute is evidence that Brisset and Blackburn reasonably believed their conduct to

be lawful, which entitles those Defendants to summary judgment on that ground

alone. (/d. at PAGEID 829, quoting Anderson v. Creighton, 483 U.S. 635, 641

(1987); citing Novak v. City of Parma, 33 F.4th 296, 303, 305 (6th Cir. 2022).

Defendants assert that Claim Three fails at the outset, because the right to

free association with family members arises not under the First Amendment, but

the Fourteenth, which is never mentioned in the Amended Complaint. (Doc. #47,

PAGEID 829, quoting fick, 105 F.4th at 884). Moreover, Plaintiff has not alleged

that he participated in his son’s decision to play outdoor music, and thus, he

cannot proceed under a theory of “right to expressive association|.]” (/d. at

PAGEID 829-30, citing B/ick, 105 F.4th at 882, 884; Doc. #38-1, PAGEID 325, 327-28,

330-31). Finally, Defendants claim that the citation being for excessive noise

means that Plaintiff has not been deprived of any right to viewpoint or content

expression, only the volume at which he expresses himself. Thus, Defendants

conclude, they are entitled to summary judgment on Claim Three. (/a@. at PAGEID

83-, citing Sa/eg v. City of Dearborn, 641 F.3d 727, 741 (6th Cir. 2011)).

As to Claim Four, Defendants argue that the video evidence provided by the

Thens, along with the statements from the Thens and five other witnesses, gave

Brisset and Blackburn probable cause to issue the citation; consequently,

Defendants claim, Brisset and Blackburn cannot be liable for malicious arrest.

(Doc. #47, PAGEID 830-31, quoting United States v. Tagg, 886 F.3d 579, 585 (6th

Cir. 2018); citing Germany v. Watkins, No. 23-3812, 2024 WL 2052153, *3 (6th Cir.

May 8, 2024)). Finally, Defendants assert that because the prosecutor alone

decided whether to proceed with charges, a claim for malicious prosecution

against Brisset and Blackburn may not be maintained, and Brisset and Blackburn

are entitled to summary judgment on all claims. (/a. at PAGEID 832-33, quoting

Sykes v. Anderson, 625 F.3d 294, 314 (6th Cir. 2010); Johnson v. Ward, 43 F. App’x

779, 783-784 (6th Cir. 2002)).

As to Miami County, Defendants argue that, because: (1) Plaintiff failed to

plead a theory of liability under Monell v. v. Dep’t of Soc. Servs, (2) a county may

not be held “vicariously liable in 81983 actions merely because [it] employs]

someone who has committed a constitutional violation|[,]” and (3) Brisset and

Blackburn did not commit a constitutional violation, Miami County is entitled to

summary judgment. (Doc. #47, PAGEID 833-34, quoting Arrington-Bey v. City of

Bedford Heights, 858 F.3d 988, 994 (6th Cir. 2017); citing Monell, 438 U.S. 658, 694

(1978); Blick, 105 F.4th at 884; Sensabaugh v. Halliburton, 937 F.3d 621, 630 (6th

Cir. 2019)).

In his memorandum contra’, Plaintiff argues that, despite the dismissal, the

citation had a chilling effect on his speech, given that a conviction could impact

his career as a law enforcement officer. (Memo. in Opp., Doc. #55, PAGEID 1021,

citing Doc. #38-1, PAGEID 337-38). He also argues that the existence of probable

cause is materially disputed as to the following facts: (1) that Brisset and

Blackburn were enforcing a neutral noise statute, rather than engaging in content-

based retaliation; (2) the officers reasonably believed that Plaintiff was the one

playing the music at an excessive volume on November 7, 2023; (3) the officers

believed at all that Plaintiff was acting recklessly; and (4) Plaintiff was charged and

prosecuted based on his own conduct, rather than Plaintiff's association with his

son. (/d. at PAGEID 1022-23). Plaintiff also argues that there is a material dispute

as to whether Miami County deviated from normal practice by making Plaintiff the

only person prosecuted for violating OHIO REV. CODE § 2917.11(A)({2), and as to

whether there was probable cause to cite Plaintiff. (/¢. at PAGEID 1023).

As to the First Amendment claims, Plaintiff argues that, to the extent that he

was responsible for “profane, racist, and sexist” music on his property, the

playing of that music constituted protected conduct. (Doc. #55, PAGEID 1024-25,

1 Plaintiff filed his Motion for Leave to File Excess Pages on January 23, 2026 (Doc. #65), almost

two months after filing his fifty-nine-page memorandum contra on November 28, 2025. (Doc. #55).

Given the closeness of the trial date, the Court SUSTAINS the Motion for Leave (Doc. #65) and

analyzes the memorandum contra in its entirety.

citing Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); Sandu/ v. Larion,

119 F.3d 1250, 1254 (6th Cir. 1997); Doc. #41-5, PAGEID 469-97). Moreover,

Plaintiff's vocal disagreements with Brisset and Blackburn regarding whether and

how profanity may be protected under the First Amendment is similarly protected

conduct. (/d. at PAGEID 1025-26, quoting City of Houston v. Hill, 482 U.S. 451, 461

(1987); citing Wood v. Eubanks, 25 F.4th 414, 423 (6th Cir. 2022); Doc. #46-1

PAGEID 784-85). Second, Plaintiff claims that the government action—issuance of

a citation and prosecution for violation of OHIO REv. CobDE § 2917.11(A)(2)—would

deter a person of “ordinary firmness” from engaging in such conduct. (/d. at

PAGEID 1026-27, citing Fritz v. Charter Twp. Of Comstock, 592 F.3d 718, 628 (6th

Cir. 2010); Tamm v. Nerad, 2025 WL 2674302, *5 (6th Cir. Sept. 18, 2025)).

Third, Plaintiff argues that a reasonable jury could conclude that Brisset and

Blackburn lacked probable cause to issue the citation and for Miami County to

prosecute Plaintiff, and that Brisset and Blackburn were “the driving force behind

the prosecution” of Plaintiff; consequently, Plaintiff claims, there was “a causal

connection between a defendant's retaliatory animus and subsequent injury|[.]”

(Doc. #55, PAGEID 1027-28, quoting Hartman v. Moore, 547 U.S. 250, 259 (2006);

citing Blackwell v. Nocerini, 123 F.4th 479, 482-84, 489 (6th Cir. 2024); Doc. #41-5,

PAGEID 473; Doc. #44, PAGEID 723-24; Doc. #46-1, PAGEID 786-89). Plaintiff

asserts that Brisset and Blackburn stopped treating the Thens’ noise complaints as

an ordinary dispute and began treating them as potential criminal matters only

when the subject of the complaints became the language in the music, rather than

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the volume. (/d. at PAGEID 1029-30, citing Doc. #40-1, PAGEID 394-414; Body Cam

Video, 30:05-30:12). Specifically, the issuance of the citation departed from the

previous Sheriff's Office directive that no citation should be issued unless an

officer witnessed the behavior personally. (/a. at PAGEID 1030-31, citing Doc. #41-

5, PAGEID 473). “Taken together, that timing and the sharp departure from

normal practice are strong circumstantial evidence of retaliatory motive.” (/d. at

PAGEID 1031). Further, the wide discretion that the Sheriff has in deciding

whether to issue citations---and that Plaintiff received the only citation for

excessive noise out of 380 complaints received by the Sheriff's Office since 2020—

is additional evidence that probable cause did not exist, and was instead a

smokescreen for Brisset and Blackburn’s discriminatory animus. (/d. at PAGEID

1032-33, citing Gonzalez v. Trevino, 602 U.S. 653 (2024); Nieves v. Bartlett, 587

U.S. 391 (2019)).

Plaintiff also argues that the question of whether probable cause existed is

one of fact for the jury, and that there is a legitimate dispute as to “whether any

objectively reasonable officer could believe that probable caused existed at all”

with respect to Plaintiff. (Doc. #55, PAGEID 1035, citing Brown v. City of Albion,

136 F.4th 331, 343 (6th Cir. 2025)). Specifically, Plaintiff asserts, there was no

evidence that Plaintiff himself made any unreasonable noise; nor was there

evidence of Plaintiff communicating the excessive noise or language to another

person, much less “recklessly,” as required by the statute. (/o. at PAGEID 1037,

1038, citing OHIO REv. CODE 8 2917.11(A)(2); Doc. #40-1, PAGEID 432-34). Plaintiff

11

claims that Brisset and Blackburn did not adequately consider exculpatory

evidence, such as Plaintiff's son stating that he was playing the music, and

Duchak’s reliance on an illegal “head of household” theory, demonstrate that

probable cause did not exist. (/a. at PAGEID 1039-40, citing Ah/ers v. Chebil, 188

F.3d 365, 372 (6th Cir. 1999); /n re Feagan, 2020-Ohio-3788, 156 N.E.3d 359 (1st

Dist.); Doc. #40-1, PAGEID 432; Body Cam Video at 7:50-8:03). Taken together,

Plaintiff concludes that he has demonstrated that probable cause did not exist

and, consequently, he has met his prima facie burden for a First Amendment

claim, shifting the burden to Defendants” to prove that they would have taken the

same action even if his speech had never occurred[].” (/a. at PAGEID 1041, citing

Hartman, 547 U.S. at 260-66).

Plaintiff argues that Defendants cannot do this, for three reasons. First,

Defendants have failed to identify any standard by which noise is considered

excessive under the statute, and as discussed above, they have not issued any

other citation for excessive noise in the last five years. (Doc. #55, PAGEID 1041,

citing Doc. #40-1, PAGEID 405-07, 417). Second, there was no discussion of

criminal liability when the gravamen of the complaints was merely noise level; it

was only after Brisset and Blackburn received complaints about the music’s

explicit content that Defendants sought to cite Plaintiff. (/o. at PAGEID 1042).

Third, the “head of household” theory used by Duchak to justify the issuance of

the citation when it was Plaintiff's son who played the music was factually

dubious and legally untenable. (/d.). Plaintiff concludes that, given how thin the

12

justifications were to cite and prosecute him, “[a] reasonable jury could find that

Defendants would not have pursued a criminal summons and prosecution against

Jason Jacobs in the absence of that protected speech. That is enough to defeat

summary judgment on his First Amendment retaliatory prosecution claim.” (Doc.

#55, PAGEID 1042-43, citing Hartman, 547 U.S. at 265-66).

As to Claim One, a facial challenge to OHIO REv. CODE § 2917.11(A)(2),

Plaintiff incorporates by reference its reasoning set forth in its Motion for Partial

Summary Judgment. (Doc. #55, PAGEID 1043, citing Pitf. Motion, Doc. #49,

PAGEID 879-90). Plaintiff argues that the statute is an impermissible content-

based restriction because criminalizing spoken language that is “offensively

coarse” or “‘grossly abusive’... does not target how something is said, nor does

it regulate conduct separate from speech. It criminalizes speech because of what

is said. That is, the words themselves. Thus, it regulates speech because of the

topic discussed and the ideas it conveys.” (Doc. #49, PAGEID 880-81 (emphasis in

original), citing Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)). Plaintiff also

claims that the offensiveness of the lyrics constitutes a viewpoint, and thus, the

statute classifying such language as disorderly conduct is impermissible

viewpoint discrimination. (/d. at PAGEID 881-83, citing Mata/ v. Tam, 582 U.S. 218,

223, 243 (2017) (plurality); Cohen v. California, 403 U.S. 15, 25 (1971); /san v.

Madison Local Sch. Dist. Bd. of Educ., 3 F.4th 887, 894-95 (6th Cir. 2021)). Plaintiff

concludes that there is nothing resembling a compelling governmental interest to

13

justify such discrimination, OHIO REV. CODE § 2917.11(A)(2) violates the First

Amendment. (/a. at PAGEID 884-85).

Plaintiff further argues that OHIO REv. CODE § 2917.11(A)(2) is facially

overbroad, also in violation of the First Amendment. (Doc. #49, PAGEID 885-86,

quoting United States v. Coss, 677 F.3d 278, 289 (6th Cir. 2012); citing Ashcroft v.

Free Speech Coal., 535 U.S. 234 (2002); Houston v. Hill, 482 U.S. 451, 465-66

(1987)). Plaintiff claims that, “[b]y its plain text, [the statute] criminalizes a vast

swath of expression that is protected by the First Amendment, including spoken

words, gestures, or displays that are merely offensive or coarse... . This

sweeping scope chills protected speech and leads to arbitrary and discriminatory

enforcement” (/d. at PAGEID 887). Finally, Plaintiff argues that the statute is

unconstitutionally vague, because the operative phrase is undefined and

circular— “offensive speech” is whatever the particular listener deems offensive.

(/d. at PAGEID 887-89, quoting Doc. #40-1, PAGEID 388; citing Coates v. City of

Cincinnati, 402 U.S. 611, 614 (1971); Hicks v. Clermont Cnty. Bd. of Comm'rs, No.

1:17-cv-677, 2018 WL (S.D. Ohio Dec. 6, 2018) (Black, J.)).

Plaintiff argues that Claim Three, Free Association, is properly raised as a

First Amendment claim, because it pertains to Plaintiff's “right to associate for the

purpose of speaking[.]” (Doc. #55, PAGEID 1043, citing Hartwe// v. Houghton Lake

Cmty. Sch., 755 F. App’x 474, 477 (6th Cir. 2018)). Plaintiff claims that under any

theory advanced by Defendants, he was cited only because he associated with his

son; that he did not gather with his son “for the ‘purpose’ of disseminating a

14

certain message” is immaterial, as the Supreme Court and United States Court of

Appeals for the Sixth Circuit have never defined the right to free speech

association so narrowly. (/a. at PAGEID 1044-45, citing Roberts v. United States

Jaycees, 468 U.S. 609, 622 (1984); Miller v. City of Cincinnati, 622 F.3d 524, 538-39

(6th Cir. 2010)). Taken together, Plaintiff argues, he has set forth enough disputed

issues of material fact for all claims against Brisset and Blackburn to proceed to

trial.

Plaintiff also argues that, for several reasons, Miami County may be held

liable under Monell. First, he posits that Sheriff Duchak, as the final

decisionmaker regarding law enforcement in the county, ratified the actions of

Brisset and Blackburn via the “head of household” theory to which he testified.

(Doc. #55, PAGEID 1045-47, quoting Pembaur v. City of Cincinnati, 475 U.S. 469,

481-84 (1986); Lioman v. Budish, 974 F.3d 726, 746 (6th Cir. 2020); citing City of St.

Louis v. Praprotnik, 485 U.S. 112, 127 (1988); Monell, 436 U.S. at 694; Doc. #40-1,

PAGEID 385-86, 408-09). Plaintiff claims that “[a] jury could treat that testimony”

by Duchak regarding his theory of liability “as ratification by a final policymaker of

the very theory that made this prosecution unconstitutional.” (/d. at PAGEID

1047).

Second, Plaintiff asserts that Miami County could be subject to Monel/

liability under a “failure to train” theory. (Doc. #55, PAGEID 1048, citing City of

Canton v. Harris, 489 U.S. 378, 388 (1989); Ouza v. City of Dearborn Heights, 969

F.3d 265, 287 (6th Cir. 2020). Specifically, Duchak sent Brisset and Blackburn to

15

investigate noise disturbances despite having issued no guidance on when music

is “unreasonably noisy” under the statute, and despite those officers being ill-

informed regarding the statute and the First Amendment. (/a. at PAGEID 1048-49).

Third, Plaintiff argues that his status as the only person cited for violating the

statute, and Brisset and Blackburn’s “focus|[] on ‘explicit’ and ‘racist’ lyrics,” (/d. at

PAGEID 1050), could reasonably be viewed by the trier of fact as a Miami County-

dictated “custom of tolerating content based, retaliatory use of disorderly conduct

against disfavored speakers.” (/d. at PAGEID 1051). As any of those three

theories would subject Miami County to Mone// liability, Plaintiff argues that

summary judgment is inappropriate. (/d. at PAGEID 1052). Moreover Plaintiff

argues that Defendants’ “group pleading” argument is a red herring, as 42 U.S.C.

§ 1983 claims are not subject to heightened pleading standards, and the individual

Defendants were still on fair notice of the claims against them. (/ad. at PAGEID

1051-52, citing Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014) (per

curiam); Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit,

507 U.S. 163, 164 (1993); &.A. v. Best W. Int'l, Inc., No. 2:23-cv-3459, 2025 WL

961502 (S.D. Ohio Mar. 31, 2025) (Marbley, J.)).

Finally, Plaintiff argues that Brisset and Blackburn are not entitled to

qualified immunity, because they actually violated Plaintiff's constitutional rights

and because “no reasonable officer could have believed their conduct was

lawful.” (Doc. #55, PAGEID 1053, citing Grawey v. Drury, 567 F.3d 302, 310, 313

(6th Cir. 2009)). Plaintiff claims that “Defendants had ample notice that officers

16

may not cause a prosecution in retaliation for protected speech when there is no

probable cause.” (/d., citing Hartman, 547 U.S. at 260-66; Sykes, 625 F.3d at 308-

14). Plaintiff further asserts that Brisset and Blackburn were on reasonable notice

that they could not: (a) punish Plaintiff merely for playing offensive music; (b)

issue a citation to Plaintiff absent probable cause; and (c) punish Plaintiff based on

his association with his son, the one actually playing the music. (/a¢. at PAGEID

1054 (citations omitted)).

Plaintiff argues that “[a] jury could find that Blackburn induced a

prosecution of Jason Jacobs, without probable cause, because of the content of

the music and Jacobs’s insistence on his First Amendment rights and on his son’s

rights[,]” (Doc. #55, PAGEID 1056), and that Brisset’s decision to charge Plaintiff

“rather than the son, even though the son admitted playing the music” could be

reasonably interpreted by a jury “as retaliation for association and for speech.”

(/d. at PAGEID 1057). He asserts that Carrick is inapposite, as that case concerned

only the volume of music and the time at which it was played, and did not address

the content or viewpoint-based citation issued here. (/d. at PAGEID 1057-58,

quoting Carrick, 2012-Ohio-608, J 22). Finally, Plaintiff argues that the Deputy

Prosecutor’s involvement does not shield Brisset and Blackburn from liability,

because Brisset and Blackburn proximately caused the issuance of the citation

and subsequent prosecution despite there being no probable cause. (/d. at

PAGEID 1058-59).

i?

In reply, Defendants argue that Plaintiff's “retaliatory prosecution”

argument is so distinct from First Amendment claims as they were pleaded in the

Amended Complaint that it constitutes a distinct and new claim, which may not be

raised for the first time in a memorandum contra a motion for summary

judgment. (Reply, Doc. #63, PAGEID 1177, citing Tucker v. Union of Needletrades,

Indus. & Textile Emplees., 407 F.3d 784, 788 (6th Cir. 2005)). Specifically,

Defendants assert, retaliatory prosecution cannot be part of a facial challenge to

the statute, as such a challenge “attacks only the constitutionality of a state

statute as it is written.” (/o, at PAGEID 1178, citing Patmon v. Mich. Supreme Ct.,

224 F.3d 504, 510 (6th Cir. 2000); Evans v. Yarbrough, No. 00-3588, 238 F.3d 420

(TABLE), 2000 WL 1871706, *2 (6th Cir. Dec. 13, 2000)). Moreover, Defendants

argue, Plaintiff's delineation of a section of his memorandum contra to his First

Amendment Free Association claim, wherein he did not discuss retaliatory

prosecution, means that Plaintiff did not intend for it to be included in Claim

Three. Defendants further note that retaliatory prosecution and an as-applied

challenge to the statute (Claim Two), while both invoking the First Amendment,

address completely different questions, and that Plaintiff properly raised his

malicious arrest and prosecution claim (Claim Four) under the Fourth, rather than

First, Amendment. (/d. at PAGEID 1178-79, citing Brown, 136 F.4th at 337-38;

Bickerstaff v. Lucarelli, 830 F.3d 388, 399 (6th Cir. 2016)).

Defendants further argue that Plaintiff failed to address his facial (Claim

One) and as-applied (Claim Two) First Amendment challenges to the statute in his

18

memorandum contra, and, consequently, he has abandoned those claims. (Doc.

#63, PAGEID 1180-81, citing Brown v. VHS of Mich., Inc., 545 F. App’x 368, 372 (6th

Cir. 2013)). Further, while Defendants concede that Plaintiff attempted to address

qualified immunity, they claim that he did so only in the context of “his brand new

attempt at a ‘retaliatory prosecution’ claim, inapposite expressive association

scenarios, and broad restatements of constitutional law.” (/d. at PAGEID 1182,

citing Doc. #55, PAGEID 1053-59). Defendants argue that such vague generalities

are insufficient to defeat a qualified immunity claim, especially where, as here,

there is a heavy presumption in favor of reasonableness when officers are

enforcing a duly-enacted statute. (/a. at PAGEID 1182, citing White v. Pauly, 580

U.S. 73, 79 (2017); Citizens in Charge, Inc., 810 F.3d at 441). Defendants also

assert that Plaintiff failed to address Defendants’ arguments regarding lack of

standing (/.e., failing to demonstrate an impending injury or substantial risk of

harm). (/d. at PAGEID 1183-84, quoting Grendel! v. Supreme Ct. of Ohio, 252 F.3d

828, 832 (6th Cir. 2001); Oswa/d, 744 F. Supp. 3d at 851). They conclude that,

because of the above and because Plaintiff has failed to rebut the heavy

presumption of a statute’s constitutionality, “[slummary judgment...

Plaintiff's First Amendment ‘facial’ and ‘as applied’ challenges is therefore

warranted.” (/d. at PAGEID 1184).

Defendants also argue that, by using a First Amendment-based argument in

his memorandum contra, Plaintiff has abandoned his malicious arrest and

prosecution claim (Claim Four). (Doc. #63, PAGEID 1184-85). Even if Plaintiff had

19

preserved the claim, however, Defendants claim that it would still be unavailing,

as Brisset and Blackburn had more than enough evidence to give them probable

cause to issue the citation: “the Thens’ complaint and corroborating statements

from other neighbors, and the Defendant Deputies were aware of the Sheriff's

related mediation with Plaintiff and the prior warning Plaintiff had received for the

‘extremely loud music’ that caused an ‘annoyance to multiple people’ and

constituted ‘unreasonable noise.” (/d. at PAGEID 1185 (citations omitted)). “The

probable cause found in this record defeats the otherwise abandoned malicious

arrest and prosecution claims.” (/d. at PAGEID 1188, quoting Meves, 587 U.S. at

410 (Thomas, J., concurring); Rice v. Jones, No. 22-3972, 2023 WL 8369996, *2

(6th Cir. Jun. 23, 2023)). Defendants note that Brisset and Blackburn repeatedly

asked Plaintiff to send them materials supporting his version of events, meaning

that they were not “turning a blind eye” to exculpatory evidence. (/d. at PAGEID

1186). Finally, Plaintiff cannot prevail on a malicious arrest and prosecution claim,

even if properly preserved, because Defendants did not participate in the decision

to prosecute Plaintiff; nor did they submit any false information to the Deputy

Prosecutor, who made the ultimate decision to prosecute Plaintiff. (/o. at PAGEID

1189-90, quoting Sykes, 625 F.3d at 374).

Even if the claims have not been abandoned, however, Defendants argue

that Plaintiff cannot defeat qualified immunity, because “[a] reasonable person in

the position of Deputies Brisset and Blackburn ‘would not have thought that [they

were] acting unlawfully,’ especially when the prosecutor approved the disorderly

20

conduct charge.” (Doc. #63, PAGEID 1191 (brackets in original), quoting Skovgard

v. Pedro, 448 F. App’x 538, 547 (6th Cir. 2011)). Defendants claim that Plaintiff's

argument that he was issued a citation due to his criticism of Brisset and

Blackburn and their consequent animus toward him is conclusory and belied by

the record. Also, the chronology of the dispute shows that the decision to issue

the citation came only after Captain Wheeler reversed himself and instructed

Brisset to present the evidence to the Deputy Prosecutor. (/ad. at PAGEID 1191-93,

citing Doc. #41-5, PAGEID 473-74; Doc. #44, PAGEID 723-24; Doc. #44-1, PAGEID

737; Doc. #46-1, PAGEID 785, 786, 788-89, 806-07). Finally, “because Plaintiff was

not himself ‘engaged in protected conduct,’ his First Amendment claim based on

‘association’ cannot survive summary judgment.” (/d. at PAGEID 1196-97, citing

Blick, 105 F.4th at 882; Doc. #38-1, PAGEID 325, 327-28, 330-31).

As to Miami County, Defendants argue that “[t]he absence of an underlying

constitutional violation by Deputy Brisset or Deputy Blackburn automatically

destroys Plaintiff's Mone//claim.” (Doc. #63, PAGEID 1197, citing Baker v. City of

Trenton, 936 F.3d 523, 535 (6th Cir. 2019)). Moreover, Defendants assert,

Plaintiff's Mone// claim fails because the Amended Complaint failed to put Miami

County on notice of the gravamen of that claim. (/d. at PAGEID 1197-98, citing

Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009)). Also, Plaintiff's Mone// claim

fails under any theory, as “mere acquiescence in a single discretionary decision

by a subordinate is insufficient to show ratification.” (/d. at PAGEID 1198 (internal

quotation marks omitted), quoting Feliciano v. City of Cleveland, 988 F.2d 649, 656

21

(6th Cir. 1993)). Defendants argue that a failure to train or supervise theory is not

viable, as neither Brisset nor Blackburn made the decision to cite and prosecute

Plaintiff. (/o. at PAGEID 1198-99, citing Berry v. Delaware Cnty. Sheriff's Office,

796 F. App’x 859, 862, 864 (6th Cir. 2019)). Finally, Defendants assert that the lack

of any “other allegedly retaliatory or otherwise unlawful disorderly conduct

charge; therefore, [Plaintiff] cannot show a ‘pattern of illegal activity’ by the

County that is ‘“similar” to the violative conduct alleged in the case at bar.’” (/d.

at PAGEID 1199, quoting Austin v. Mosley, No. 23-1425, 2025 WL 448879, *5 (6th

Cir. Feb. 10, 2025); citing Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)).

Defendants conclude that no ground for Mone// liability exists even if it had been

pleaded.

The matters are now ripe for decision.

il. Legal Standards

A. Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” FepD.R.Civ.P. 56(a). Summary judgment must be entered

“against a party who fails to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Ce/otex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The

moving party always bears the initial responsibility of informing the court of the

basis for its motion, and identifying those portions of the record which it believes

22

demonstrate the absence of a genuine issue of material fact. /d. at 323; see a/so

Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).

Once the moving party has met its initial burden, the nonmoving party must

present evidence that creates a genuine issue of material fact making it necessary

to resolve the difference at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986). Once the burden has so shifted, the party opposing summary judgment

cannot rest on its pleadings or merely reassert its previous allegations. It is not

sufficient to “simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). Rule 56 “requires the nonmoving party to go beyond the pleadings,”

and present some type of evidentiary material in support of its position. Ce/otex,

477 U.S. at 324. “The plaintiff must present more than a scintilla of evidence in

support of his position; the evidence must be such that a jury could reasonably

find for the plaintiff.” Michigan Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337,

341 (6th Cir. 1994).

“Summary judgment will not lie if the dispute about a material fact is

‘genuine,’ that is, if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In determining

whether a genuine dispute of material fact exists, a court must assume as true the

evidence of the nonmoving party and draw all reasonable inferences in favor of

that party. /d. at 255. Ifthe parties present conflicting evidence, a court may not

decide which evidence to believe. Credibility determinations must be left to the

23

fact-finder. 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL

PRACTICE AND PROCEDURE CIVIL § 2726 (3d ed. 1998).

In determining whether a genuine dispute of material fact exists, a court

need only consider the materials cited by the parties. FeD.R.Civ.P. 56(c)(3). “A

district court is not... obligated to wade through and search the entire record for

some specific facts that might support the nonmoving party’s claim.” /nterRoyal

Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). If it so chooses, however,

the court may also consider other properly presented materials in the record.

FeD.R.Civ.P. 56(c){3).

B. Qualified Immunity

“The qualified-immunity standard is a familiar one. The doctrine ‘shield[s]’

public officials from money-damages liability if ‘their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.’” Citizens in Charge, Inc. v. Husted, 810 F.3d 437, 440 (6th Cir.

437, 440 (6th Cir. 2016) (brackets in original), quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). The Supreme Court has established a two-step test for

establishing whether government officials are not entitled to qualified immunity:

(1) whether plaintiff's constitutional rights or guarantees were violated; and (2)

whether those rights and guarantees were “clearly established” at the time of

violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). A court may analyze

either step first; in other words, if the rights at issue were not clearly established,

then the Court need not determine whether the officials actually violated those

24

rights. /o. at 236. “This inquiry turns on the ‘objective legal reasonableness of the

action, assessed in light of the legal rules that were clearly established at the time

it was taken.” /d. at 244, quoting Wi/son v. Layne, 526 U.S. 603, 614 (1999).

C. Fair Presentation and Abandonment of Claims

Rule 8(a) requires “[a] pleading” that contains “a short and plain statement

of the claim showing that the pleader is entitled to relief[.]” FED.R.Civ.P. 8(a)(2)

(emphasis added). “A non-moving party plaintiff may not raise a new legal claim

for the first time in response to the opposing party's summary judgment motion.

At the summary judgment stage, the proper procedure for plaintiffs to assert a

new claim is to amend the complaint in accordance with Rule 15(a).” 7ucker, 407

F.3d at 788.7

When a properly-raised claim is challenged on summary judgment, but never

responded to by the non-movant, “[t]his Court's jurisprudence on abandonment of

claims is clear: a plaintiff is deemed to have abandoned a claim when a plaintiff fails

to address it in response to a motion for summary judgment.” Brown, 545 F. App’x

at 372 (collecting cases).

2 “However, there is another line of recent Sixth Circuit decisions which limit the Tucker holding in

cases where the change made in response to the motion for summary judgment does not result in

unfair surprise because of adequate notification of the new argument.” /n re Medcorp, Inc., 521

B.R. 259, 268 (N.D. Ohio 2014) (collecting cases); see a/so Carter v. Ford Motor Co., 561 F.3d 562,

568 (6th Cir. 2009) (“the notice inquiry necessarily proceeds on a case-by-case basis. Sometimes,

as we have recognized, a claim raised in response to a summary judgment motion provides

sufficient notice to the opposing party.”). Because, as discussed below, the Court does not

consider Plaintiff's retaliatory prosecution claim to be a newly-raised claim, it need not address

whether Defendants were on adequate notice of that argument.

25

lll. Analysis

A. Fair Presentation

As Defendants correctly note (Doc. #63, PAGEID 1177), Plaintiff devotes

much of his memorandum contra to arguing that Defendants’ conduct constituted

retaliatory prosecution, in violation of the First Amendment. (Doc. #55, PAGEID

1024-43). Retaliatory prosecution is different in kind from Plaintiff's initial claim of

malicious arrest and prosecution, which arises under the Fourth Amendment.

(Doc. #14, PAGEID 87, 71-79). While both claims require a plaintiff to prove

absence of probable cause, see, e.g., Hartman, 547 U.S. at 258, retaliatory

prosecution requires a plaintiff to prove that “the adverse action was motivated at

least in part as a response to the exercise of the plaintiff's constitutional rights.”

Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). No such showing of animus is

required for malicious prosecution. See Thompson v. Clark, 596 U.S. 36, 49 (2022)

(“[a] plaintiff need only show that the criminal prosecution ended without a

conviction.”). Thus, Plaintiff's retaliatory prosecution argument did not arise out

of Claim Four for malicious prosecution. Moreover, Plaintiff addressing his facial

challenge of the statute (Claim One), and his free association claim (Claim Three)

separately in his memorandum contra (Doc. #55, PAGEID 1043-45) means that he

does not view his retaliatory prosecution argument as connected to those claims;

nor could he reasonably so argue.

In Claim Two, Plaintiff's “as-applied” challenge, he alleges that “Defendants

applied the law to Plaintiff in a manner to retaliate against him for his protected

26

speech” (Doc. #14, PAGEID 84, 7 50) and “for offending [Defendants’]

sensibilities.” (/a. at PAGEID 85, 4] 53). However, Plaintiff does not raise any

allegation specifically with respect to prosecution. Defendants, thus, have a

colorable argument that Plaintiff engaged in “group pleading” that fails to put

Defendants on notice of a retaliatory prosecution claim, much less what each

Defendant is alleged of having done. (Doc. #47, PAGEID 823). Moreover, Plaintiff

has seemingly abandoned an as-applied challenge with respect to Claim Two as

one for violation of First Amendment free speech guarantees by not addressing it

in his memorandum contra. Nonetheless, in an attempt to resolve claims on the

merits, the Court will analyze Claim Two as one for retaliatory prosecution in

violation of the First Amendment.

B. Abandonment

As discussed above, Plaintiff's First Amendment retaliatory prosecution

argument in his memorandum contra Defendants’ Motion is distinct from his

Fourth Amendment malicious arrest and prosecution Claim Four in the Amended

Complaint. Indeed, the word “malicious” appears nowhere in the memorandum

contra, despite Defendants arguing extensively in their Motion that Plaintiff's

claim for malicious prosecution fails as a matter of law. (Doc. #47, PAGEID 830-

33). Accordingly, Plaintiff has abandoned Claim Four, and it must be dismissed

with prejudice.

27

C. Plaintiff’s Motion for Partial Summary Judgment

In his Motion, Plaintiff “moves for summary judgment declaring Ohio

Revised Code § 2917.11(A)(2) facially unconstitutional.” (Doc. #49, PAGEID 872).

Plaintiff's Motion is foreclosed by the Amended Complaint, wherein Plaintiff prays

that the Court “enjoin Defendant Yost from the further enforcement of this Statute

and invalidate this Statute” (Doc. #14, PAGEID 84, J 47 (emphasis added)),

because Yost “is the chief legal officer of the state, with enforcement power over

Ohio's disorderly conduct statute[.]” (/d. at 7 42). However, as discussed above,

Yost was dismissed from the case, and the remaining Defendants in the case are

Miami County and two Sheriff's Deputies. Plaintiff never states what relief he

seeks from Brisset, Blackburn, and Miami County if the statute were to be

declared unconstitutional. Moreover, he offers no caselaw, and the Court is

unaware of any, supporting the proposition that a county and its employees are

proper defendants to a lawsuit facially challenging a state statute.

This distinction is not semantic, but, rather, at the core of Article III

standing: even assuming arguendo that the Court agreed with Plaintiff that the

statute is unconstitutional, the Court is without power to fashion a remedy given

the parties in the case. In other words, Plaintiff's harm alleged in the facial

challenge is not redressable by the remaining Defendants. “[N]o principle is more

fundamental to the judiciary's proper role in our system of government than the

constitutional limitation of federal-court jurisdiction to actual cases or

controversies,” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006) (internal

28

quotations omitted), meaning that this Court may not render advisory opinions,

which is what Plaintiff seeks.

In sum, the Court lacks the authority at this juncture to declare OHIO REV.

CobE §2917.11(A)(2) facially unconstitutional. As Plaintiff advances no other

ground for summary judgment, his Motion for Partial Summary Judgment (Doc.

#49) must be overruled.

D. Claim One: Facial Challenge

In their Motion and Reply, Defendants argue that Plaintiff lacks standing to

bring a facial challenge, because he has not identified an imminent injury that

would entitle him to injunctive or declaratory relief. (Doc. #47, PAGEID 824-25;

Doc. #63, PAGEID 1183-84). A claimant alleging that he has already been injured

by an unconstitutional statute has not alleged “an adequate injury in fact to confer

standing for declaratory and injunctive relief.” See Grendel/, 252 F.3d at 832.

Plaintiff argues only that he “had standing to challenge the offensive-language

provision of OHIO REV. CODE 8 2917.11(A)(2) the moment deputies threatened him

with arrest for his alleged use of profane language.” (Doc. #49, PAGEID 878-79).

Were Plaintiff to have moved for injunctive or declaratory relief at the time of the

threat, before the citation was issued, then he may well have had standing.

However, his decision to wait until after he was cited and failure to allege any

imminent injury or substantial likelihood of future harm means that he cannot

obtain such relief as part of a facial challenge.

29

As to his requested relief of damages (Doc. #14, PAGEID 84, § 48), to avoid

summary judgment, Plaintiff must show a genuine issue of material fact as to

whether “no set of circumstances exists under which the Act would be valid,’ /e.,

that the law is unconstitutional in all of its applications.” Wash. State Grange, 552

U.S. at 449 (internal quotation marks and citation omitted). Also, to avoid

qualified immunity for Brisset and Blackburn—the only two Defendants against

whom Claim One remains pending — Plaintiff must show that the statute’s facial

invalidity was clearly established. As Defendants note (Doc. #47, PAGEID 826), the

“unreasonable noise” portion of the statute has been upheld by the Supreme

Court of Ohio as providing “sufficient notice for a person of ordinary intelligence

to understand what he or she is required to do under the law[,]” and

“incorporat[ing] an objective standard by prohibiting only noise that is

‘unreasonable.”” Carrick, 2012-Ohio-608 at Jf 12, 20. Thus, Plaintiff is asking the

Court to conclude that a particular phrase of a statute’s subsection is facially

unconstitutional, and that the facial violation was clearly established at the time

Brisset and Blackburn issued the citation, even as a different phrase of that same

subsection was upheld as constitutional. Plaintiff cites no caselaw that would

support such a conclusion. Since Plaintiff’s First Amendment rights with respect

to the statute, if any, were not clearly established at the time of the issuance of the

citation by Brisset and Blackburn, those Defendants are entitled to qualified

immunity, Pearson 555 U.S. at 232, and Claim One fails as a matter of law.

30

E. Claim Two: As-Applied Retaliatory Prosecution Challenge

To meet his prima facie burden in a claim for retaliatory prosecution, like

other First Amendment retaliation claims, Plaintiff must “plausibly show (1) that

he was ‘engaged in protected conduct,’ (2) that the defendant took adverse action

against him ‘that would deter a person of ordinary firmness from continuing to

engage in that conduct,’ and (3) that the protected conduct caused the adverse

action, at least in part.” Susselman v. Washtenaw Cnty. Sheriff's Office, 109 F.4th

864, 871 (6th Cir. 2024), quoting 7haddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

1999) (en banc). A court may “consider the last prong first. To show causation, a

plaintiff must plausibly allege that the defendant would not have taken the

adverse action ‘absent the retaliatory motive.’” /d., quoting Nieves v. Bartlett, 587

U.S. 391, 398-99 (2019). Plaintiff must demonstrate “a ‘causal connection’

between the government defendant's ‘retaliatory animus’ and the plaintiff's

‘subsequent injury[.]’” Nieves, 587 U.S. at 398 (internal citation omitted); accord:

Hartman, 547 U.S. at 262-66 (holding that plaintiff must show retaliatory animus

and but-for causation between that animus and the prosecution without probable

cause).

Plaintiff argues that Brisset and Blackburn are not immunized from liability

simply because the Miami County deputy prosecutor was the one who actually

prosecuted Plaintiff, because Brisset and Blackburn “induced the prosecution.”

(Doc. #55, PAGEID 1028 (internal quotation marks omitted), citing Blackwell v.

Nocerini, 123 F.4th 479, 482-84, 489 (6th Cir. 2024)). In support, Plaintiff asserts

31

that Sheriff's deputies had been responding to noise complaints for more than a

year, and simply logged the dispute without citing Plaintiff or anyone else. (/d! at

PAGEID 1029, citing Doc. #40-1, PAGEID 394-414). “That changed only when the

dispute became about language and when Jacobs asserted his First Amendment

rights.” (/d. at PAGEID 1030, citing Doc. #41-4, PAGEID 454-64). Plaintiff notes

that Blackburn told him that playing Taylor Swift would not subject him to

citation. (/d., citing Body Cam Video at 49:04-49:13, 50:33-50:35).

However, even if Brisset and Blackburn's distaste for the music being

played at Plaintiff’s house constituted animus on their parts, the causal link

between that shift and the ultimate prosecution of Plaintiff is too attenuated for

Plaintiff to satisfy the third element of retaliatory prosecution, even at the

summary judgment stage. Nieves, 587 U.S. at 398. It is undisputed that, after

Brisset and Blackburn became aware of the presumed protected speech, they

followed Captain Wheeler’s instruction not to issue citations unless they

witnessed a violation first-hand. (Doc. #41-5, PAGEID 473).

More importantly, there is no dispute that, on November 8, 2023, Brisset

closed the case against Plaintiff without any charges. (Doc. #41-5, PAGEID 473). It

was only after Wheeler reversed himself and instructed Brisset and Blackburn to

take the case to the Deputy Prosecutor, and the Deputy Prosecutor himself

directed Brisset and Blackburn to issue the citation, that Plaintiff was subject to

prosecution. Given that Brissett closed the case against Plaintiff without charges,

any retaliatory animus by Brissett and Blackburn could not have been the direct

32

and proximate cause of the charge being filed; rather, Wheeler’s instruction was a

superseding cause. Absent a proximate causal link between any animus and the

issuance of the citation, Defendants did not violate Plaintiff’s First Amendment

rights, and Plaintiff's claim fails as a matter of law.

Alternatively, Defendants are correct that “[t]here is no violation of a clearly

established constitutional right when following a supervisor's instruction to

complete an investigation and let the prosecutor decide whether any charge

should be filed.” (Doc. #63, PAGEID 1196, citing Kinkus v. Vill. of Yorkville, Ohio,

289 F. App’x 86, 91 (6th Cir. 2008) (collecting cases)). Thus, Brisset and Blackburn

are entitled to qualified immunity, and Claim Two fails for that reason as well.

F. Claim Three: First Amendment Association

Plaintiff clarifies in his memorandum contra that he is bringing a First

Amendment claim—specifically, that the decision to charge Plaintiff grew out of

his association with his son, the one who was playing the supposedly offensive

music. (Doc. #55, PAGEID 1043-44). He argues that “[i]t is enough that Jacobs

associated with his son in a way that involved listening to music and, together,

pushing back against government efforts to suppress that speech.” (/ad. at PAGEID

1044-45, citing Roberts, 468 U.S. at 622; Miller, 622 F.3d at 538-39).

In a First Amendment free speech association claim, the Court evaluates

whether: (1) “the identified group [may] seek freedom-of-association ‘protection’

because its members associate partly to express a message”; (2) “the challenged

state action ‘significantly burden[s]’ the group's ability to spread its message”;

33

and (3) the “burden on speech outweigh|[s] any governmental interests justifying

the burden[.]” Blick, 105 F.4th at 882 (citations omitted). While the B/ick Court

decided the case on other grounds, it expressed doubt that the plaintiff's

association—a group of parents organized informally and solely for the purpose

of supporting her at a school board meeting—could avail itself of First

Amendment free association protection:

At the outset, it is not clear that these allegations meet the first

element of our freedom-of-association test. [Appellant] cites no case

that has treated an informal and ad hoc group (parents who seek to

attend a school-board meeting) as an “expressive association”

entitled to First Amendment protection. Most Supreme Court cases

have instead involved formal entities like the Boy Scouts, the NAACP,

or other charitable organizations.

Id. at 884, citing Boy Scouts of Am. v. Dale, 530 U.S. 640, 648, (2000).

There is no evidence of record indicating that Plaintiff and his son had even

formed an ad hoc group for the purpose of playing explicit music. (See, e.g., Doc.

#38-1, PAGEID 325, 327 (Plaintiff testifying that “[t]here's no objective behind any

music being played if | play musicl[,]” and that “I told [the deputies] that | was not

playing music.”)). Even if they had, however, 8/ick demonstrates that any

extension of First Amendment free association rights to encompass Plaintiff was

not clearly established at the time of the issuance of the citation. Thus, Brisset

and Blackburn are entitled to qualified immunity as to Claim Three.

G. Monel! Liability

In his memorandum contra, Plaintiff argues that, by suing Brisset and

Blackburn in their official capacities, he put Miami County on “clear notice that

34

Plaintiff seeks to hold the County responsible for its own policies, customs, and

decisions, not only for individual misconduct.” (Doc. #55, PAGEID 1052, citing

Kentucky v. Graham, 473 U.S. 159, 165, 166 (1985)). However, while Miami

County is named as a Defendant in the Amended Complaint, Plaintiff did not

plead: (1) the existence of a specific unlawful policy; (2) that a particular Miami

County official ratified the decision of Brisset and Blackburn to issue the citation to

Plaintiff; (3) that Miami County officials failed to train and supervise adequately

Sheriff’s deputies; or (4) “the existence of a custom or tolerance of acquiescence

of federal rights violations.” Lipman v. Budish, 974 F.3d 726, 746 (6th Cir. 2020).

In other words, Plaintiff never put Defendants on notice of his intent to pursue a

Monel! theory of liability against Miami County until his memorandum contra. As

Plaintiff failed to put Miami County on notice of a potential Mone// claim,

FepD.R.Civ.P. 8(a)(2), such a claim fails for that reason alone.

Moreover, Mone// liability is derivative; if a plaintiff cannot demonstrate that

a city or county employee violated his constitutional rights, then he cannot hold

the employing municipal or county entity under Monell. Blick is again instructive:

[Plaintiff] sought to hold the School District (the entity) liable for its

alleged “policy or custom” of violating its employees’ First

Amendment rights. We can make short work of this argument. We

have repeatedly held that a plaintiff cannot hold a city liable for an

unconstitutional policy unless the policy led to a violation of the

plaintiff's own rights. Because Blick failed to show that any school

officials violated her First Amendment rights, her Mone// claim

against the District necessarily fails too.

35

105 F.4th at 884 (emphasis in original), citing Farris v. Oakland Cnty., 96 F.4th 956,

968-69 (6th Cir. 2024); Dibrell v. City of Knoxville, 984 F.3d 1156, 1165 (6th Cir.

2021). As Plaintiff failed to show that Brisset or Blackburn violated his

constitutional rights, Miami County may not be held liable under Monel/. Since

Plaintiff advances no alternate theory of liability, in his memorandum contra or

elsewhere, Miami County is entitled to summary judgment in full.

IV. Conclusion

For the foregoing reasons, Defendants Brisset, Blackburn, and Miami

County’s Motion for Summary Judgment (Doc. #47) is SUSTAINED, and Plaintiff's

Motion for Partial Summary Judgment (Doc. #49) is OVERRULED. Judgment shall

enter in favor of Defendants and against Plaintiff.

The captioned cause is hereby ordered terminated upon the docket records

of the United States District Court for the Southern District of Ohio, Western

Division at Dayton.?

IT IS SO ORDERED.

UJ Order HU vows

February 18, 2026 WALTER H. RICE, JUDGE

UNITED STATES DISTRICT COURT

3 The Thens’ Motion for Attorney Fees (Doc. #51) is fully briefed and remains pending before this

Court, but does not prevent the Court from issuing final judgment. 8Budinich v. Becton Dickinson &

Co., 486 U.S. 196, 202 (1988). The Motion will be ruled upon by the Court within the next several

weeks.

36