Petition for Writ of Certiorari — Samantha Taczak, et al., Petitioners v. Nicolette Cremeans, et al.

Supreme Court briefDec 22, 2023

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APPENDIX TABLE OF CONTENTS

Page

Sixth Circuit Court of Appeals, Opinion, dated

August 14, 2023................................................ App. 1

Sixth Circuit Court of Appeals, Judgment, dated

August 14, 2023.............................................. App. 13

District Court for the Southern District of Ohio,

Opinion and Order, dated August 17, 2022 ... App. 14

District Court for the Southern District of Ohio,

Opinion and Order, dated October 23, 2019 .... App. 65

Sixth Circuit Court of Appeals, Order, dated

September 26, 2023 ........................................ App. 98

App. 1

NOT RECOMMENDED FOR PUBLICATION

File Name: 23a0371n.06

No. 22-3730

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NICOLETTE CREMEANS;

JAMES CREMEANS,

) ON APPEAL FROM

) THE UNITED

Plaintiffs-Appellees, ) STATES DISTRICT

) COURT FOR

) THE SOUTHERN

SAMANTHA TACZAK; CITY ) DISTRICT OF OHIO

)

OF CHILLICOTHE, OH;

OPINION

)

KEITH WASHBURN,

) (Filed Aug. 14, 2023)

Chief of Police,

)

Defendants-Appellants. )

BEFORE: GRIFFIN, KETHLEDGE, and THAPAR,

Circuit Judges.

GRIFFIN, Circuit Judge.

After the Chillicothe Police Department held over

$30,000 of James and Nicolette Cremeans’s money for

over nineteen months, they sued, arguing the officers

violated their due process rights. Defendant officers

moved for summary judgment on absolute and qualified immunity grounds. The district court denied that

motion, and we affirm.

App. 2

In early 2018, Chillicothe detectives investigated

and surveilled plaintiffs, believing they were part of a

large drug trafficking operation. On January 10, 2018,

Chillicothe police stopped James for a traffic violation,

and officers seized his cell phone and $1,080 in cash.

When Nicolette arrived at the scene, they seized her

cell phone and an additional $715. Officers then obtained and executed a search warrant for their home,

which authorized a search for not only evidence of drug

crimes, but currency, financial records, and communication devices. They did not find any drugs or paraphernalia, but discovered and seized $33,715 in cash

and various personal property.

Over the following months, plaintiffs demanded

return of the seized property “several” times. Defendants refused, citing an ongoing investigation. Once their

investigation was complete, in November 2018, Chillicothe police submitted their case to the Ross County

Prosecutor. But the prosecutor did not immediately act

on the case, so the police continued to hold plaintiffs’

cash and property.

Meanwhile, in September 2018, plaintiffs filed a

replevin action in state court. The judge ordered defendants to return Nicolette’s cell phone and the $715

seized from her, but denied replevin as to all other

items given the ongoing criminal investigation.

In June 2019, plaintiffs filed this lawsuit under 42

U.S.C. § 1983, alleging that defendants violated their

Fourth and Fourteenth Amendment rights. Soon after,

App. 3

the Ross County Prosecutor indicted James for “receiving proceeds of an offense subject to forfeiture proceedings.” That indictment did not include a separate

forfeiture specification (which Ohio law requires, see

Ohio Rev. Code § 2941.1417), nor had a civil forfeiture

action been initiated against plaintiffs. On August 16,

2019, a state grand jury returned a second indictment

against James that included the following forfeiture

specification:

The grand jurors further find and specify

that U.S. currency in the amount equal to

$30,855.82 belonging to James D. Cremeans,

specifically, the $1080.00 in U.S. currency

seized from the person of the said James D.

Cremeans, and the $29,775.82 in U.S. currency seized from the residence of the said

James D. Cremeans, . . . is subject to forfeiture.

Then, in October 2019, the district court granted plaintiffs’ request for a preliminary injunction. The court

noted that it was “at a loss to comprehend the state’s

failure to file in a timely manner civil forfeiture or request forfeiture in the first indictment.” It declared defendants’ actions unconstitutional and ordered “the

return of property seized during the execution of a

search warrant on January 10, 2018.” James’s pending

state charges were dismissed in November 2020. In

March 2021, defendants returned the cash to plaintiffs’

counsel.

This case comes to us following the parties’ cross

motions for summary judgment. The district court

App. 4

granted defendants’ motion on plaintiffs’ Fourth Amendment claim, which is not at issue in this appeal. But

the court declined to grant summary judgment in favor of either party on the Fourteenth Amendment

claim, finding that defendants were not entitled to absolute or qualified immunity and that material disputes of fact precluded judgment. Defendants timely

appealed.1

II.

Defendants argue they are entitled to absolute

prosecutorial immunity because they were performing

a prosecutorial function when they held the seized

property. The district court disagreed, and we affirm.

“We review the district court’s denial of a defendant’s claims that he is entitled to absolute or qualified

immunity de novo, as that issue is a question of law.”

Spurlock v. Thompson, 330 F.3d 791, 796 (6th Cir. 2003)

(citation and brackets omitted). But we must defer to

the district court’s determinations of fact. Adams v.

Blount Cnty., 946 F.3d 940, 948–49 (6th Cir. 2020).

“Absolute immunity is the exception rather than the

rule.” Spurlock, 330 F.3d at 796 (citation and brackets

Defendant City of Chillicothe seems to appeal the district

court’s denial of summary judgment in its favor on plaintiffs’

municipal-liability claim, see Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658 (1978), but that claim is not

“inextricably intertwined” with the reviewable claims on appeal.

See Shumate v. City of Adrian, 44 F.4th 427, 450 (6th Cir. 2022)

(citation omitted). We therefore dismiss the City’s appeal for lack

of jurisdiction.

App. 5

omitted). We generally assume that qualified, not absolute, immunity is sufficient to protect a government

actor. Id. So “[t]he official seeking absolute immunity

bears the burden of showing that such immunity is justified for the function in question.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (citation omitted). It

does not matter that defendants are police officers, rather than prosecutors, because we use a “functional approach” to determine whether officials are entitled to

absolute immunity, “which looks to the nature of the

function performed, not the identity of the actor who

performed it.” Id. (internal quotation marks omitted).

Prosecutorial immunity from suit under § 1983

applies to activities that are “integral part[s] of the judicial process.” Imbler v. Pachtman, 424 U.S. 409, 430

(1976) (citation omitted); see also Price v. Montgomery

Cnty., 72 F.4th 711, 719–20 (6th Cir. 2023). “The analytical key to prosecutorial immunity . . . is advocacy—

whether the actions in question are those of an advocate.” Holloway v. Brush, 220 F.3d 767, 775 (6th Cir.

2000). So “the critical inquiry is how closely related is

the prosecutor’s challenged activity to his role as an

advocate intimately associated with the judicial phase

of the criminal process.” Id. (citation omitted). For example, prosecutors have absolute immunity for “the professional evaluation of the evidence assembled by the

police and appropriate preparation for its presentation

at trial or before a grand jury after a decision to seek

an indictment has been made.” Buckley, 509 U.S. at 273.

But “prosecutors are not entitled to absolute immunity for” actions that are not “closely associated

App. 6

with the judicial process” like investigative or administrative acts. Id. at 271 (citation omitted); see also

Burns v. Reed, 500 U.S. 478, 483 n.2 (1991). “[A] prosecutor who ‘performs the investigative functions normally performed by a detective or police officer’ such as

‘searching for the clues and corroboration that might

give him probable cause to recommend that a suspect

be arrested’ is entitled only at most to qualified immunity.” Prince v. Hicks, 198 F.3d 607, 611 (6th Cir.

1999) (quoting Buckley, 509 U.S. at 273).

In defendants’ view, if prosecutors are entitled to

absolute immunity for their “professional evaluation

of the evidence assembled by the police,” Buckley,

509 U.S. at 273, then police officers must be entitled

to the same immunity when they hold the evidence

(and therefore facilitate the prosecutor’s evaluation).

More specifically, they contend that once their investigation was complete and they were just holding the evidence pending a prosecutorial decision, the possession

became a prosecutorial function. We cannot agree.

Defendants never evaluated the evidence; they

merely held it—a fact they admitted to the district

court, calling their actions “ministerial.” Nor did they

do any advocacy, which is the “critical inquiry.” Holloway, 220 F.3d at 775 (citation omitted). Absent that,

we see no actions related to the judicial process—let

alone ones that are “intimately associated with the

judicial phase of the criminal process.” Id. (citation

omitted). Thus, defendants are not entitled to absolute

immunity.

App. 7

III.

Defendants also argue they are entitled to qualified immunity. The district court disagreed, a decision

we review de novo. See Bey v. Falk, 946 F.3d 304, 311

(6th Cir. 2019). We affirm.

It is “well settled that a temporary, nonfinal deprivation of property is nonetheless a ‘deprivation’ in

the terms of the Fourteenth Amendment,” triggering

certain due process requirements. Fuentes v. Shevin,

407 U.S. 67, 85 (1972). All agree that the process due

to plaintiffs was the initiation of a forfeiture action

within a reasonable time; an “unreasonable” delay

between the seizure and the filing of a forfeiture action violates the constitution. See, e.g., United States v.

Eight Thousand Eight Hundred and Fifty Dollars

($8,850) in U.S. Currency, 461 U.S. 555, 564–65 (1983).

We evaluate whether such a delay was unreasonable

by balancing four factors (commonly referred to as the

Barker factors): “the length of the delay, the reason for

the delay, the claimant’s assertion of his right, and the

prejudice to the claimant.” United States v. Ninety

Three Firearms, 330 F.3d 414, 424–25 (6th Cir. 2003)

(citing Barker v. Wingo, 407 U.S. 514, 530 (1972)).2

“[N]one of these factors is a necessary or sufficient

condition for finding unreasonable delay. Rather, these

elements are guides in balancing the interests of the

Barker set out these factors to evaluate a claim that the

government violated a defendant’s Sixth Amendment right to

speedy trial. 407 U.S. at 530. In $8,850, the Supreme Court held

that the Barker test also applies to claims of deprivation of property without due process. 461 U.S. at 565.

App. 8

claimant and the Government to assess whether the

basic due process requirement of fairness has been satisfied in a particular case.” $8,850, 461 U.S. at 565.

We review plaintiffs’ constitutional claim through

the lens of qualified immunity, which shields public

officials from personal liability unless they “violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether defendants are entitled to qualified

immunity, we must ask two questions: (1) “whether the

facts that a plaintiff has . . . shown . . . make out a violation of a constitutional right,” and (2) “whether the

right at issue was ‘clearly established’ at the time of

[the] defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation omitted). We

may consider these questions in either order. Id. at

236.

As to the first qualified-immunity question—

whether there was a constitutional violation—defendants argue they were not “involve[d] in the Prosecutor’s delay,” so they cannot be held liable for any

constitutional violation. But, as the district court noted,

the extent of defendants’ involvement is a pure question of fact. So we cannot address this argument. See

Moldowan v. City of Warren, 578 F.3d 351, 371 (6th Cir.

2009); see also Adams, 946 F.3d at 948–49.

We turn, then, to the second question. For a right

to be clearly established, “the contours of the right

must be sufficiently clear that a reasonable official

App. 9

would understand that what he is doing violates that

right.” Burwell v. City of Lansing, 7 F.4th 456, 476 (6th

Cir. 2021) (citation and brackets omitted). “[C]learly

established law should not be defined at a high level of

generality”; rather, it must be “particularized to the

facts of the case.” White v. Pauly, 580 U.S. 73, 79 (2017)

(per curiam) (internal quotation marks omitted). Under binding circuit precedent, we may look to decisions of the United States Supreme Court, our Court

of Appeals, and the Ohio Supreme Court to determine

whether a right is clearly established.3 Durham v.

Nu’man, 97 F.3d 862, 866 (6th Cir. 1996).

The right at issue here was clearly established by

the Ohio Supreme Court in 1990. In State v. Baumholtz, the State of Ohio seized Robin Baumholtz’s car

after police discovered her using cocaine in it. 553

N.E.2d 635, 635 (Ohio 1990). Baumholtz was arrested

and charged with a felony and two misdemeanors. Id.

The state did not immediately file a petition for forfeiture, instead waiting nearly six months. Id. at 636–37.

The trial court denied the petition for forfeiture and

the court of appeals affirmed, concluding that the state

failed to comply with its own procedural requirements

for forfeiture. Id. at 636. On appeal, the Ohio Supreme

We recognize that the Supreme Court has merely assumed

that non-Supreme Court caselaw can constitute clearly established law. See, e.g., Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 8

(2021) (per curiam) (“Even assuming that controlling Circuit precedent can clearly establish law for purposes of § 1983, . . . .”). But

defendants do not challenge plaintiffs’ reliance on Ohio caselaw

on this ground, so we need not revisit our binding precedent today.

App. 10

Court applied the four-factor Barker test and held that

“[t]he delay in the instant case—approximately five

and one-half months—[was] significant.” Id. at 637–39.

The state argued that forfeiture required an individual

to be convicted of a felony, so the ongoing criminal case

against Baumholtz justified the delay in filing. Id. But

the Ohio Supreme Court rejected this argument, noting that the criminal proceedings did “not justify the

delay in filing a petition for forfeiture.” Id. On the third

factor, the court noted that there was no evidence that

Baumholtz asserted her right to a timely forfeiture

proceeding, so this factor weighed against her. Id. Nor

was there evidence that she suffered prejudice, so that

too weighed against her. Id. Balancing these factors,

the court noted this was “a close case,” but “both the

length of the delay and the lack of any credible reasons

for the failure to promptly file a forfeiture petition

must be given great weight.” Id. at 640. Even with findings against Baumholtz on the other two factors, the

Ohio Supreme Court concluded that “the delay in filing

the forfeiture petition was unreasonable.” Id.

At this stage, Baumholtz is directly on point. The

district court made two findings of fact crucial to this

conclusion: it found that the delay in this case was 19

months and 6 days (the period between the January

10, 2018, seizure and the August 16, 2019, indictment),

and that “Defendants have offered no credible explanation for the latter half of the 19-month delay.”4 Indeed,

Defendants argue that the criminal investigation justified

the delay, but the district court rejected this argument because,

while pending criminal proceedings are a factor to consider, they

App. 11

plaintiffs’ case is even stronger than Baumholtz’s—the

delay is nearly four times as long (first factor), and

they timely sought return of their property “multiple”

times “and filed a replevin action” (third factor). Accordingly, under Baumholtz, reasonable officers would

have known that plaintiffs had been unlawfully deprived of their property.

Defendants seek to distinguish Baumholtz on

three fronts, but none of their arguments persuade.

They first contend that the seizure of a car is distinct

from the seizure of cash. While the Baumholtz court

did note that the seizure of a vehicle was particularly

“onerous,” id. at 638 (citation omitted), the Supreme

Court has recognized that the deprivation of cash is

“undoubtedly a significant burden,” $8,850, 461 U.S. at

565. That it involved a vehicle does not render Baumholtz materially distinct. Defendants next argue (in

their reply brief ) that Baumholtz is inapplicable because it applied an Ohio forfeiture statute, rather than

the Fourteenth Amendment’s due process clause. But

they did not raise this argument in their opening brief,

so it is forfeited. See Bormuth v. Cnty. of Jackson, 870

F.3d 494, 500 (6th Cir. 2017) (en banc). Finally, defendants note that Baumholtz did not involve a criminal

investigation. That is incorrect: Baumholtz was arrested and charged with felony drug abuse, as well as

do not automatically toll the application of the due process clause

to forfeiture proceedings. See $8,850, 461 U.S. at 567; Baumholtz,

553 N.E.2d at 639. In any event, the district court found the defendants’ investigation stopped after ten months, so it could not

justify the additional nine-month delay.

App. 12

misdemeanor assault and resisting arrest.5 Baumholtz, 553 N.E.2d at 635. While the court never used

the word “investigation,” Baumholtz was the subject of

ongoing criminal proceedings, just like plaintiffs here.

Baumholtz clearly establishes that a five-and-ahalf-month delay in initiating forfeiture proceedings

with no credible justification is unlawful, even without

the exercise of diligence or suffering of prejudice. When

compared to this case (a nineteen-month delay, no

credible justification, and a finding that plaintiffs diligently attempted to get their property back), the district court properly concluded that defendants should

have known that their conduct violated plaintiffs’

clearly established rights.

IV.

For these reasons, we dismiss the appeal in part

and affirm the judgment of the district court in part.

These facts appear in the syllabus of the opinion, which is

part of the opinion. See Ohio Rep. Op. R. 2.2 (“The law stated in

an opinion of the Supreme Court shall be contained in its text,

including its syllabus, if one is provided, and footnotes.”); see also

Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 566 n.3

(1977) (quoting Hart v. Andrews, 132 N.E. 846, 847 (Ohio 1921))

(“The syllabus is the language of the court.”).

App. 13

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 22-3730

NICOLETTE CREMEANS; JAMES CREMEANS,

Plaintiffs - Appellees,

SAMANTHA TACZAK; CITY OF CHILLICOTHE,

OHIO; KEITH WASHBURN, Chief of Police,

Defendants - Appellants.

Before: GRIFFIN, KETHLEDGE,

and THAPAR, Circuit Judges.

JUDGMENT

(Filed Aug. 14, 2023)

On Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

THIS CAUSE was heard on the record from the

district court and was argued by counsel.

IN CONSIDERATION THEREOF, it is ORDERED

that the judgment of the district court is AFFIRMED.

ENTERED BY ORDER

OF THE COURT

/s/ Deborah S. Hunt

Deborah S. Hunt, Clerk

App. 14

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NICOLETTE CREMEANS, :

et al.,

Plaintiffs,

SAMANTHA TACZAK,

et al.,

Defendants.

Case No. 2:19-cv-2703

Chief Judge

Algenon L. Marbley

Magistrate Judge

Elizabeth P. Deavers

OPINION & ORDER

(Filed Aug. 17, 2022)

This matter is before the Court on Plaintiffs’ and

Defendants’ Cross-Motions for Summary Judgment

(ECF Nos. 94 & 110), as well as Plaintiffs’ Motion to

Compel (ECF No. 112) and Defendants’ Motion to Strike

(ECF No. 131). For the reasons that follow, Plaintiffs’

Motion for Summary Judgment is DENIED, and Defendants’ is GRANTED IN PART and DENIED IN

PART. Plaintiffs’ Motion to Compel and Defendants’

Motion to Strike each are DENIED.

BACKGROUND

Plaintiffs Nicolette and James Cremeans bring

this case against the City of Chillicothe and several of

its police officers: Detective Samantha Taczak, Chief of

Police Keith Washburn, and other Unknown Officers.

App. 15

(ECF No. 4). Plaintiffs allege violations of their constitutional rights under the Fourth and Fourteenth

Amendments stemming from arrests, searches, and

seizures executed by Defendants. The Amended Complaint states: “The arrests were warrantless and without probable cause, there was no search warrant for

[Plaintiffs’] persons . . . and both the search warrant

affidavit and search warrant were constitutionally defective.” (Id. ¶ 35). It also alleges “Defendants’ act in

failing to return Plaintiffs[’] property” violated their

due process rights. (Id. ¶ 36).

Events of January 10, 2018

On January 10, 2018, Plaintiffs allege they both

were arrested and detained by Chillicothe police officers. Mr. Cremeans was stopped by “Unknown” officers

for a traffic violation, and the officers seized his cell

phone and $1,080 in cash from his person. (ECF No. 4

¶ 10; No. 110 at 5–6). Mrs. Cremeans was detained

when she later arrived on the scene, and “Unknown”

officers seized her cell phone and $715 she was carrying. (ECF No. 4 ¶ 15; No. 110 at 6). Detectives had been

surveilling Plaintiffs in the days prior, on suspicion of

a large drug trafficking operation. (Id. at 5; ECF No.

94-2). Plaintiffs were taken to the police station while

officers obtained and executed search warrants for the

Charles Street residence and an additional property

Plaintiffs were in the process of purchasing (178 South

Woodbridge Avenue). (ECF No. 4 ¶¶ 12–13, 15; No. 941; No. 110 at 6–7).

App. 16

The Charles Street warrant related to suspected

drug crimes but also authorized searching for currency,

financial records, communication devices, and other

items. (ECF No. 94-1). While officers did not find any

drugs, they allegedly did seize $33,715 in cash1 and the

following items:

one jar of quarters and rolled change, lease

agreements, an old rare coin collection, bank

statements and other financial documents,

car and motorcycle titles, a cell phone, thumb

drives, a camera, a hard drive, sim cards, financial documents, passports[,] and other

property.

(ECF No. 4 ¶ 9).2 Plaintiffs were released from the police station after the searches were complete. (ECF No.

110 at 7).

Replevin, Investigation, and Indictment

Over the following months, Plaintiffs demanded

return of the seized property. (ECF No. 4 ¶ 29). Defendants refused, citing their ongoing investigation. (Id.

¶ 30). In September 2018, Plaintiffs brought an action

for replevin or conversion in the Ross County Court of

Common Pleas, Case No. 18 CI 412. The judge ordered

This is the sum of two amounts stated in the Amended

Complaint: “$9,715 in cash from different locations within the residence, [and] $24,000 from a safe.” (ECF No. 4 ¶ 9). The parties

disagree on the precise amount taken. See infra Section III.B.1.

The Woodbridge Avenue warrant is not in evidence. Plaintiffs do not allege any items were taken from that property, which

they did not yet own.

App. 17

Defendants to return the cell phone and $715 seized

from Mrs. Cremeans but denied replevin as to “all

other requested items . . . because there is an ongoing criminal investigation.” (ECF No. 9-2). The judge

amended his order nunc pro tunc to state that the dismissal was without prejudice. (Hr’g Ex. P-1).3

Defendants have outlined the timeline of their investigation as follows: (1) Officers execute the search

warrant on January 10, 2018; (2) Officers obtain

some tax records in February and March; (3) Detective

Taczak subpoenas Plaintiffs’ bank records in March;

(4) Taczak receives partial response to bank subpoenas

in April; (5) Taczak receives full response in June; (6)

Officers investigate and compile their case against

Plaintiffs from June to September; (7) Officers seek additional years of tax returns in October; (8) Officers

submit the case to the Ross County Prosecutor in November 2018. (Hr’g Ex. D-3).

At the time Plaintiffs filed this suit on June 26,

2019, prosecutors had neither brought a formal forfeiture action nor charged them with any crimes. On July

12, 2019, days before this Court held a preliminary injunction hearing, the Ross County Prosecutor brought

an indictment against Mr. Cremeans for “receiving

proceeds of an offense subject to forfeiture proceedings,” in violation of O.R.C. § 2927.21. (Hr’g Ex. D-4).

All citations to “hearing exhibits” refer to documents received as evidence at this Court’s preliminary injunction hearing

on July 15 and 16, 2019. At the hearing, Plaintiffs also submitted

audio recordings of the state-court case. This Court has heard the

recordings in their entirety.

App. 18

That indictment did not include a separate forfeiture

specification as required by O.R.C. § 2941.1417, nor

had authorities initiated civil forfeiture proceedings.

On August 16, 2019, a state grand jury returned a new

indictment against Mr. Cremeans, which included the

following:

SPECIFICATION: The grand jurors further

find and specify that U.S. currency in the

amount equal to $30,855.82 belonging to

James D. Cremeans, specifically, the $1080.00

in U.S. currency seized from the person of the

said James D. Cremeans, and the $29,775.82

in U.S. currency seized from the residence of

the said James D. Cremeans, located at 463

Charles Street, Chillicothe, Ohio 45601 at the

time of this offense, is subject to forfeiture.

(ECF No. 27-1).

The criminal charges and forfeiture specification

against Mr. Cremeans were dismissed on November

19, 2020, under Ohio Rule of Criminal Procedure 29

(“Motion for Acquittal”). (ECF No. 70; No. 110 at 9).

Procedural History

Plaintiffs’ case has a lengthy procedural history in

this Court. On July 2, 2019, the Court partially granted

Plaintiffs’ request for a temporary restraining order,

finding “a plausible claim for a constitutional violation”

due to Defendants’ delay in bringing a formal forfeiture action. (ECF No. 11 at 4). The Court ordered Defendants to “hold the Plaintiffs’ property in trust” and

App. 19

to “refrain from diminishing, testing, or engaging in

any spoliation of the property until this Court rules

on the Preliminary Injunction.” (Id.). The Court held

a preliminary injunction hearing on July 15 and 16,

2019, and found for Plaintiffs. While acknowledging

that “[t]he Chillicothe Police Department acted diligently in investigating the case,” the Court was “at a

loss to comprehend the state’s failure to file in a timely

manner civil forfeiture or request forfeiture in the first

indictment.” (ECF No. 31 at 20, 24). Defendant appealed. (ECF No. 32).

On April 7, 2020, the Court granted Plaintiffs’ motion to enforce the preliminary injunction. (ECF No. 45

at 8–9). The Court partially stayed that order “as to the

$30,855.82 listed in the August 2019 forfeiture specification . . . pending resolution of the appeal.” (Id. at 8).

All other property was to be returned without delay,

“including cash in the amount of $2,859.18” (i.e., the

difference between the sum Plaintiffs allege was seized

and the amount listed in the forfeiture specification)

and the following items:

one jar of quarters and rolled change, lease

agreements, an old rare coin collection, bank

statements and other financial documents,

car and motorcycle titles, a cell phone, thumb

drives, a camera, a hard drive, sim cards, financial documents, car keys, passports[,] and

other property.

(Id. at 8–9).

App. 20

Defendants did not return the cash and coins immediately, so the Court set a show-cause hearing. Defendants argued “that they [were] unable to comply . . .

because some of the specific property that was listed—

the rolled coins and change and the rare coin collection—were included in the sum total of the forfeiture

specification.” (ECF No. 58 at 4). In an order dated May

12, 2020, the Court found Plaintiffs had not offered evidence of the total amount of cash allegedly taken, so

it excused Defendants from returning the $2,859.18.

(Id. at 4–5). The Court reiterated its order to “turn over

all physical property”—including the coins, since that

particular property was not described in the forfeiture specification. (Id. at 5). Defendants reported, with

video evidence to verify, that they surrendered the

rolled and rare coins shortly before that order issued

and the jar of quarters shortly after. (ECF No. 63).

Once the criminal charges against Mr. Cremeans

were dismissed in state court, Defendants voluntarily

dropped their appeal. (ECF No. 71). Defendants ultimately notified the Court on March 22, 2021, that they

had “transferred $30,191.00 to Plaintiffs’ counsel”4

and were “no longer holding any of Plaintiffs’ personal

property or currency.” (ECF No. 86 (emphasis original)). Defendants attached a signed property return

form as evidence. (ECF No. 86-1).

This represented the cash remaining after Defendants returned the coins. Since Defendants had included the coins in their

original calculation, they no longer held the full $30,855.82 listed

in the forfeiture specification.

App. 21

On August 2, 2021, Plaintiffs filed their Motion for

Summary judgment (ECF No. 94). Defendants filed a

combined response brief and cross-Motion for Summary Judgment on December 9, 2021 (ECF No. 110).

Plaintiffs combined their response and reply brief

(ECF No. 123), and Defendants filed a final reply (ECF

No. 130). Separately, Plaintiffs moved to compel discovery (ECF No. 112), and Defendants moved to strike a

portion of Plaintiffs’ summary judgment briefing (ECF

No. 131). All these matters stand ripe for adjudication.

II.

STANDARD OF REVIEW

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); Berryman v. SuperValu Holdings, Inc., 669

F.3d 714, 716–17 (6th Cir. 2012). The Court’s role is not

“to weigh the evidence and determine the truth of the

matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249 (1986). “[T]here is no issue for trial unless

there is sufficient evidence favoring the nonmoving

party for a jury to return a verdict for that party.” Id.

at 249. Evidence that is “merely colorable” or “not significantly probative” will not defeat summary judgment. Id. at 249–50.

The party seeking summary judgment shoulders

the initial burden of presenting the Court with law and

argument in support of its motion, as well as “identifying those portions of ‘the pleadings, depositions,

App. 22

answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(quoting Fed. R. Civ. P. 56(c)). “If the moving party satisfies its burden, then the burden of going forward

shifts to the nonmoving party to produce evidence that

results in a conflict of material fact to be resolved by a

jury.” Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 150 (6th

Cir. 1995).

“The Court views factual evidence in the light

most favorable to the non-moving party and draws all

reasonable inferences in that party’s favor.” Barrett v.

Whirlpool Corp., 556 F.3d 502, 511 (6th Cir. 2009). Even

so, “[t]he mere existence of a scintilla of evidence to

support [the nonmovant’s] position will be insufficient;

there must be evidence on which the jury could reasonably find for the [nonmovant].” Copeland v. Machulis,

57 F.3d 476, 479 (6th Cir. 1995) (citing Anderson, 477

U.S. at 252).

III.

LAW AND ANALYSIS

Fourth Amendment (Count I)

Count I of the Amended Complaint states claims

under the Fourth Amendment and 42 U.S.C. § 1983 for

unlawful search and seizure of Plaintiffs’ property, as

well as unlawful arrest and detention. The Court will

address these claims separately.

App. 23

1. Search and Seizure

First, Plaintiffs seek summary judgment on their

claims stemming from the search warrant executed at

their property on January 10, 2018. Plaintiffs argue

that the search warrant failed to meet the particularity requirement and that the accompanying affidavit

did not establish probable cause. (ECF No. 94 at 7–17).

Plaintiffs also request a Franks hearing on whether

Detective Taczak fabricated information in the affidavit. (Id. at 11 n. 4). Defendants likewise seek summary

judgment on the search warrant claims. They contest

Plaintiffs’ attacks on the warrant and affidavit and add

a qualified immunity defense. (ECF No. 110 at 21–23,

30–32).

The search warrant and affidavit at issue are attached to Plaintiffs’ Motion. (ECF Nos. 94-1 & 94-2).

The warrant, issued on January 10, 2018, by Judge

John Street of the Chillicothe Municipal Court, authorized a search of Plaintiffs’ residence at 463 Charles

Street for evidence of drug trafficking, possession of

controlled substances, and drug paraphernalia offenses. (ECF No. 94-1). It specifically identified the

following items: drugs, drug abuse instruments, and

drug paraphernalia; records, ledgers, or documents

representing the proceeds of drug trafficking; employment records; monies, including bank records,

cryptocurrency documents, checks, jewelry, and U.S.

currency; weapons; photographs of other assets or coconspirators; safe deposit keys and lock boxes; cell

phones and other electronic communication devices;

vehicles located at the premises; and documents

App. 24

showing ownership of the residence. (Id.). The warrant

also authorized officers to take photographs, video recordings, and fingerprints of any adult subjects found

inside the premises. (Id.).

Detective Taczak signed the accompanying search

warrant affidavit. According to the affidavit, the Chillicothe Police Department had received citizen complaints “that James D. Cremeans is selling illegal

drugs in the city,” and had learned from confidential

informants “that Mr. Cremeans purchases kilograms

of Cocaine from Mexican Nationals and sells it within

the city.” (ECF No. 94-2). Detective Taczak recounted

information received from the Miami Valley Task Force

“[w]ithin the past four months” regarding a traffic stop

of a suspected drug dealer, who was found with “several kilograms of Cocaine.” The driver “admitted to delivering a kilogram of Cocaine to 463 Charles St.,” and

the GPS confirmed the vehicle had stopped on Charles

Street before travelling to the Dayton area. (Id.). Detective Taczak then discussed a traffic stop of Mr. Cremeans “[o]ver the last four weeks” (distinct from the

stop on January 10), where he was arrested for possession of cocaine. (Id.). “The bag of suspected Cocaine appeared to have come from the corner of a kilogram due

to the being pressed [sic].” (Id.). When Mr. Cremeans’s

phone was searched pursuant to a separate warrant, it

showed phone calls and text messages to Mexican

numbers, and text messages to a Texas number organizing payments. (Id.). The affidavit noted Mr. Cremeans’s Bitcoin account as a possible means of money

laundering, as well as his purchase of the Woodbridge

App. 25

Avenue property, potentially for stashing cash or

drugs. (Id.). Finally, Detective Taczak summarized the

results of the surveillance that had begun on January

8, 2018. Detectives observed foot traffic at 463 Charles

Street “consistent with drug trafficking,” as well as

several short car trips by Mr. Cremeans and an unidentified passenger consistent with drug deliveries.

(Id.). Officers stopped Mr. Cremeans on one such trip

(this being the January 10 stop), where he was found

with “a large amount of cash on his person,” and his

passenger was found with “illegal pills.” (Id.).

Particularity and Breadth

Plaintiffs claim the warrant was “overbroad” in

that it “provided officers authority to search and seize

items that are not listed in the search warrant affidavit nor relevant to claims made in the search warrant

affidavit.” (ECF No. 94 at 7). The Fourth Amendment

guarantees “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const. amend. IV.

Ohio’s Constitution contains a near identical guarantee. See Ohio Const. art. I, § 14. “A general order to explore and rummage through a person’s belongings is

not permitted.” United States v. Ford, 184 F.3d 566, 575

(6th Cir. 1999) (quoting United States v. Blakeney, 942

F.2d 1001, 1026 (6th Cir. 1991)). A warrant may be

found “too broad” where “it includes items that should

not be seized.” United States v. Richards, 659 F.3d 527,

537 (6th Cir. 2011) (quoting United States v. Upham,

App. 26

168 F.3d 532, 535 (1st Cir. 1999)). “However, the degree

of specificity required is flexible and will vary depending on the crime involved and the types of items

sought. Thus a description is valid if it is as specific as

the circumstances and the nature of the activity under

investigation permit.” United States v. Ables, 167 F.3d

1021, 1033 (6th Cir. 1999) (quoting United States v.

Henson, 848 F.2d 1374, 1383 (6th Cir. 1988)).

Plaintiffs quarrel with the inclusion of jewelry,

money held in retirement or brokerage accounts, employment records, and electronic communication devices (ECF No. 94 at 9); but these fall squarely within

the scope of possible evidence for a suspected drug

trafficking operation. At the preliminary injunction

hearing, Defendants explained how financial and employment records related to their theory of the case—

that Plaintiffs only could have amassed such large

cash reserves through drug dealing. Electronic communication devices could have contained other evidence of trafficking—like the Mexican phone contacts

found in an earlier search of Mr. Cremeans’s cell phone.

(See ECF No. 94-2). Jewelry and financial accounts

represented possible proceeds of drug trafficking; and

in any event, Plaintiffs do not allege those items actually were searched or seized. (See ECF No. 4 ¶ 9 (listing

seized items)). See also Guest v. Leis, 255 F.3d 325, 336

(6th Cir. 2001) (“there would be no harm from an alleged defect in the warrant” where plaintiffs did not

establish the item was, in fact, searched). Plaintiffs’ argument about the warrant’s fingerprint authorization

(ECF No. 94 at 8) falters on the same basis, as there is

App. 27

no allegation Plaintiffs were fingerprinted at the residence. On the contrary, Plaintiffs claim they were

detained at the police station while the search transpired. (ECF No. 4 ¶¶ 10, 12, 15).

In sum, Plaintiffs have not demonstrated that the

search warrant was overbroad or lacking in particularity. The warrant named the items to be searched, with

as much specificity as was feasible in that early state

of the investigation. See Ables, 167 F.3d at 1033. All

items related to the drug trafficking offense specified

in the warrant, either as direct evidence or possible

proceeds. As such, the warrant did not grant “carte

blanche” (ECF No. 94 at 9) to “rummage through a person’s belongings.” Ford, 184 F.3d at 575. Nor did it approach the problematic overbreadth of the cases cited

in Plaintiffs’ Motion. See id. (warrant could not authorize “seizure of all financial documents in the

buildings, whether or not related to the [investigated

conduct] in time or subject matter”); State v. Castagnola, 46 N.E.3d 638, 657–58 (Ohio 2015) (warrant

could not authorize police “to examine every record or

document on Castagnola’s computer in order to find

any evidence of the alleged crimes”). On this theory,

Plaintiffs have not stated a viable claim.

Probable Cause

Additionally, Plaintiffs argue that Detective

Taczak’s affidavit in support of the search warrant

failed to establish probable cause and contained lies

provable in a Franks hearing. (ECF No. 94 at 9–17).

App. 28

Defendants maintain the affidavit was sufficient. (ECF

No. 110 at 21–22).

An affidavit supplies “probable cause” for a search

warrant if it shows “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Brown, 828 F.3d 375,

381 (6th Cir. 2016) (quoting Illinois v. Gates, 462 U.S.

213, 238 (1983)). “There must, in other words, be a

nexus between the place to be searched and the evidence sought.” Id. (quoting United States v. Carpenter,

360 F.3d 591, 594 (6th Cir. 2004)). Where a detached

magistrate judge has found probable cause, a reviewing court should pay “great deference” to that determination. Gates, 462 U.S. at 236 (quoting Spinelli v.

United States, 393 U.S. 410, 419 (1969)). Relatedly,

courts should “recognize[ ] that affidavits ‘are normally

drafted by nonlawyers in the midst and haste of a

criminal investigation,’ ” and should not impose “ ‘[t]echnical requirements of elaborate specificity.’ ” Id. at 235–

36 (quoting United States v. Ventresca, 380 U.S. 102,

108 (1965)). “In deciding whether probable cause exists, [courts] must examine the totality of the circumstances in a ‘realistic and commonsense fashion.’ ”

United States v. Van Shutters, 163 F.3d 331, 336 (6th

Cir. 1998) (quoting United States v. Finch, 998 F.2d 349,

352 (6th Cir. 1993)).

A Franks hearing, named after the case Franks v.

Delaware, 438 U.S. 154 (1978), allows a criminal defendant “to prove his allegations that officers had made

false statements in their search warrant affidavits.”

App. 29

Butler v. City of Detroit, 936 F.3d 410, 418 (6th Cir.

2019). As the Sixth Circuit recounted:

The Supreme Court determined that the

Fourth Amendment’s exclusionary rule allowed a defendant, in narrow circumstances,

to attack the veracity of a search warrant affidavit. [Franks, 438 U.S.] at 164–65, 98 S.Ct.

2674. The Court, however, carefully circumscribed the opportunity to do so, recognizing

the need to give respectful deference to a magistrate’s probable cause determination. Id. at

166–67, 98 S.Ct. 2674. The bottom line was

that an evidentiary hearing on the affidavit’s

truthfulness was required only if the defendant alleged “deliberate falsehood or . . . reckless disregard for the truth.” Id. at 171, 98

S.Ct. 2674. “Allegations of negligence or innocent mistake,” the Court emphasized, would

be “insufficient.” Id. And the allegations of deliberate or reckless falsehood “must be accompanied by an offer of proof.” Id. Even having

satisfied these steps, a defendant must still

show that “when material that is the subject

of the alleged falsity or reckless disregard is

set to one side,” the affidavit’s remainder no

longer demonstrates probable cause. Id. at

171–72, 98 S.Ct. 2674. Only then is a defendant entitled to a Franks hearing to prove his

allegations. Id. at 172, 98 S.Ct. 2674.

Butler, 936 F.3d at 418.

Plaintiffs’ request for a Franks hearing in this Section 1983 case is procedurally improper. Franks arose

in the criminal context, and Plaintiffs cite no cases (nor

App. 30

has this Court identified any) suggesting such a hearing is available here. The Franks standard extends to

Section 1983, where it bears on a police officer’s entitlement to qualified immunity. See id. at 417–19 (“To

overcome an officer’s entitlement to qualified immunity, a § 1983 plaintiff must make a substantial showing

that the defendant stated a deliberate falsehood or

showed reckless disregard for the truth.” (internal quotation marks omitted)). The Franks hearing does not.

See, e.g., Sims v. Biggart, 2014 WL 3401983, at *5 (W.D.

Mich. July 10, 2014) (“A section 1983 action, such as

this, is an inappropriate vehicle for seeking a Franks

hearing.” (internal quotation marks omitted)); Lockard

v. Bray, 2022 WL 1504809, at *6 (E.D. Mich. May 12,

2022) (“In general, the question of probable cause in a

section 1983 action is one for the jury, unless only one

reasonable determination is possible.”). Accordingly,

the Court will proceed without a Franks hearing.5

On the evidence submitted, there is no genuine

dispute that Detective Taczak’s affidavit supplied

probable cause for the search warrant. Plaintiffs attempt to debunk almost every paragraph of the affidavit, but they submit no objective evidence of its

falsehood. Plaintiffs criticize the citizen complaints for

being anonymous, unverifiable, and unconnected to the

Charles Street residence (ECF No. 94 at 10–11); the

confidential informants for failing to state how they

learned of Mr. Cremeans’s alleged cocaine purchases

Plaintiffs’ hearing request is all the more perplexing considering they deposed Detective Taczak on the veracity of her affidavit. (See ECF No. 118 (Taczak dep.)).

App. 31

(Id. at 11–12); the Miami Valley Task Force tip for being stale and for not yielding any arrests (Id. at 12–

14); the “Mexican National” for being uncredible (Id. at

14); the first traffic stop for being stale and for inferring that a bag of cocaine had come from a kilogram

(Id. at 14–15); the Mexican phone calls for possibly being discovered without a search warrant (Id. at 15);

and the Bitcoin usage and property purchase as having

plausible innocent explanations (Id. at 16–17). Several

of these criticisms misrepresent the affidavit. For instance, the affidavit clearly states that a warrant was

obtained to search Mr. Cremeans’s cell phone; and it

shows that the word of the “Mexican National” (who

admitted to delivering a kilogram of cocaine to 463

Charles Street) was objectively corroborated by his

GPS. (ECF No. 94-2). Plaintiffs also fail to make any

mention of the police surveillance activities in the days

immediately prior to the warrant, which showed foot

traffic and driving routes “consistent with drug trafficking.” (Id.).

More troublesome, though, is Plaintiffs’ choice to

question each piece of the affidavit in isolation, missing

“the totality of the circumstances.” Van Shutters, 163

F.3d at 336. It is easy to say that, standing alone, a

four-month-old tip from the Miami Valley Task Force is

stale, or a confidential informant is unverified. Viewed

as a whole, however, the affidavit gives a clear picture

of an ongoing drug trafficking operation, with supplier

contacts in Mexico, bulk deliveries, and sales out of the

Charles Street residence. It provided at least “a fair

probability,” Brown, 828 F.3d at 381, that current drug

App. 32

shipments or proceeds of previous drug sales would be

found at the property. See also United States v. Jones,

159 F.3d 969, 975 (6th Cir. 1998) (“in the case of drug

dealers, evidence is likely to be found where the dealers live” (internal quotation marks omitted)).

Plaintiffs’ efforts to impeach Detective Taczak

likewise fall short. Plaintiffs juxtapose Detective

Taczak’s testimony at the preliminary injunction hearing, that she did little investigating prior to the search

warrant (see ECF No. 36, Tr. 37:6–39:24), with her testimony before the state-court judge “that she was the

LEAD INVESTIGATOR . . . and a member of the federal Drug Task Force in January 2018.” (ECF No. 123

at 23 (emphasis original, citing state-court audio recording)). These ideas are not in conflict. As Detective

Taczak explained at the preliminary injunction hearing, she “held off on the investigation so that Miami

Valley Task Force could complete theirs.” (ECF No. 36,

Tr. 38:24–25; see also id. at 60:24–61:11 (Taczak test.,

explaining the risks posed to undercover officers when

one agency interferes with another’s investigation)).

Beyond the sweeping claims of “prevarication” and

“bamboozl[ing]” (ECF No. 94 at 12), the only evidence

Plaintiffs offer to support their version of events is

their own affidavits. (ECF Nos. 94-3, 94-4). “Self-serving

affidavits alone, however, are not enough to create an

issue of fact sufficient to survive summary judgment.”

Am. Nat’l Prop. & Cas. Co. v. Williamson, 547 F. Supp.

3d 741, 750 (S.D. Ohio 2021). Defendants’ arguments,

on the other hand, are well taken. Probable cause is

apparent on the face of the two documents, and

App. 33

Plaintiffs have not submitted adequate evidence to the

contrary. Thus, the Court finds no genuine triable issue

regarding the preparation or execution of the search

warrant. Defendants are entitled to summary judgment on those claims.6

2. Arrest and Detention

The parties also seek summary judgment on

Plaintiffs’ Fourth Amendment claims relating to their

arrest and detention while the warrant was executed.

(ECF No. 94 at 17–19; No. 110 at 23–30). Though Defendants resist the characterization of an “arrest,”

most of the underlying facts are clear. On January 10,

2018, prior to issuance of the search warrant, police

performed a traffic stop on Mr. Cremeans. (ECF No. 94

at 2; No. 110 at 5). Officers found Mr. Cremeans in possession of a large amount of cash, and they transported

him to the police station on suspicion of drug trafficking. (ECF No. 94 at 2; No. 110 at 6). Mrs. Cremeans

later arrived at the scene of the traffic stop and attempted to enter the vehicle Mr. Cremeans had been

driving. (ECF No. 36, Tr. 14:3-8; No. 110 at 6). According to Defendants, Mrs. Cremeans was detained and

transported to the police station on suspicion of “trying

The Court need not reach Defendants’ qualified immunity

argument on Count I. See Mays v. City of Dayton, 134 F.3d 809,

813 (6th Cir. 1998) (“In this case, if the court determines that [defendant] had probable cause sufficient to obtain a search warrant,

plaintiffs’ § 1983 claim fails, and the issue of whether [defendant]

receives qualified immunity becomes moot.”).

App. 34

to remove or destroy evidence” in the car. (Id.).7 Money

and cell phones were seized from Plaintiffs’ persons.

(ECF No. 94 at 2–3). Police obtained the search warrant for 463 Charles Street while Plaintiffs were at the

station, and Plaintiffs were released after it was executed. (Id. at 2; ECF No. 110 at 7).

Plaintiffs’ arrest and detention claims suffer a

threshold defect, raised in Defendants’ Motion: all conduct is attributed to “Unknown Officers.” (Id. at 23–28;

see ECF No. 4 ¶¶ 10, 12, 15). They in fact were Officers

Shipley and King (see ECF No. 110-1 (decl. of Matthew

Shipley), No. 110-2 (decl. of Chris King)), neither of

whom is named in the Amended Complaint. Since

“[p]ersonal involvement is necessary to establish section 1983 liability,” Murphy v. Grenier, 406 F. App’x

972, 974 (6th Cir. 2011) (citing Gibson v. Matthews, 926

F.2d 532, 535 (6th Cir. 1991)), neither Detective Taczak

nor Chief Washburn can be liable for these detentions.

Plaintiffs’ response brief belatedly claims the detentions were “ordered” by Detective Taczak (ECF No. 123

at 26), but this cannot substitute for well-pled allegations in the complaint. See Bridgeport Music, Inc. v.

WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (“To

the extent [a party] seeks to expand its claims to assert

Plaintiffs represent that Mrs. Cremeans’s mother, Tammy

Tyler, was arrested and detained with her. (ECF No. 94 at 2, 17).

The Court does not consider these claims, as Ms. Tyler is not a

party to this case and never is mentioned in the Amended Complaint.

App. 35

new theories, it may not do so in response to summary

judgment”).

The claims also cannot persist against “Unknown

Officers.” Such a designation “is not favored in the federal courts,” though “it is permissible when the identity

of the alleged defendant is not known at the time the

complaint is filed and plaintiff could identify defendant

through discovery.” Yates v. Young, 772 F.2d 909 (table),

1985 WL 13614, at *1 (6th Cir. Aug. 28, 1985) (citing

Schiff v. Kennedy, 691 F.2d 196 (4th Cir. 1982); Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980); and Maclin

v. Paulson, 627 F.2d 83 (7th Cir. 1980)). Defendants

reproduce portions of Plaintiffs’ depositions—which

Plaintiffs do not rebut—showing that Plaintiffs knew

the officers’ identities long ago. (See ECF No. 110 at

25–26). Yet, Officers Shipley and King were not substituted for the “Unknown Officers,” and now it is too late.

The Court’s deadline has passed (see ECF No. 93

(amendment or joinder to be filed by July 20, 2021)), as

has the two-year statute of limitations. See Browning

v. Pendleton, 869 F.2d 989, 990 (6th Cir. 1989) (statute

of limitations in Section 1983 actions is that of the

state where the action arose; in Ohio, two years); Cox

v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996) (naming

“Unknown Officers” does not toll the statute of limitations); Smith v. City of Akron, 476 F. App’x 67, 69 (6th

Cir. 2012) (“relating back” provision of Fed. R. Civ. P.

15(c) is inapplicable to such a substitution). This leaves

App. 36

no viable defendants for the arrest and detention

claims.8

For these reasons, Plaintiffs’ claims for unconstitutional search, seizure, arrest, and detention are not

viable. Summary judgment for Defendants is appropriate. On Count I, Defendants’ Motion for Summary

Judgment is GRANTED, and Plaintiffs’ is DENIED.

Fourteenth Amendment (Count II)

Count II of the Amended Complaint concerns Defendants’ failure to return the seized property or initiate timely forfeiture proceedings, which Plaintiffs aver

violated the Due Process Clause of the Fourteenth

Amendment and 42 U.S.C. § 1983. Plaintiffs seek summary judgment, resting mostly on their arguments at

the preliminary injunction stage. (See ECF No. 94 at

19–20). Defendants, on the other hand, argue that the

Fourteenth Amendment claims are barred by absolute

or qualified immunity, that no Defendant personally

caused a due process violation, and that Plaintiffs had

The deficient pleading of “Unknown Officers” would not necessarily absolve the City of any liability for the arrests and detentions those officers made. The problem, again, is that allegations

about the arrests and detentions concern only those Unknown Officers. The Amended Complaint’s sole mentions of the City or its

policies are in reference to the delay claims in Count II. (See ECF

No. 4 ¶¶ 25, 29–30, 34). Plaintiffs attempt to add new Fourth

Amendment “policy and procedure” claims in their response brief

(ECF No. 123 at 31–32); but this comes too late. See Bridgeport

Music, 508 F.3d at 400.

App. 37

adequate state remedies available. (ECF No. 110 at 9–

21).

The Court will structure its analysis around these

defenses. First, though, a subsidiary issue requires attention. It is one that long has vexed this Court:

whether Defendants returned all the property seized

on January 10, 2018.

1. Missing Property

The parties continue to debate whether any property remains unaccounted for. This issue is of some

consequence: if any property remains in Defendants’

custody, the delay now exceeds 55 months, with serious

due process implications. Defendants state that the

last of Plaintiffs’ property was returned on March 22,

2021, mooting Plaintiffs’ injunctive claims. (ECF No.

86; No. 110 at 9). Plaintiffs, however, believe that thousands of dollars remain missing. (ECF No. 123 at 33–

35). In a separately filed Motion, they seek to compel

production of a bank receipt dated January 11, 2018,

as evidence of the true amount seized. (ECF No. 112).

According to the Amended Complaint, Defendants

seized $34,795 in cash—$33,715 from the Charles Street

residence ($24,000 “from a safe” and $9,715 “from different locations”), and $1,080 from Mr. Cremeans at

the traffic stop—as well as “one jar of quarters and

rolled change . . . [and] an old rare coin collection” in

App. 38

unspecified amounts. (ECF No. 4 ¶¶ 9–10).9 The forfeiture specification, however, listed only $30,855.82:

the sum of $1,080 seized from Mr. Cremeans and

$29,775.82 seized from the residence. (ECF No. 27-1).

This Court initially ordered Defendants to return the

difference of $2,859.18 (ECF No. 45 at 7); but, on their

motion to clarify, the Court accepted Defendants’ argument “that they never seized $2,859.18 above the

amount listed in the August 2019 forfeiture specification, and that the amount listed in the forfeiture specification included all of the cash seized, as well as the

sum of the rare coin collection and unspecified coinage

that the Court ordered Defendants to turn over.” (ECF

No. 58 at 2). “[B]ecause Plaintiffs did not establish by

testimony or other evidence the full amount of cash

they allege was taken,” the Court found “they [were]

not entitled to request the return of the difference between what they allege was taken and what was listed

in the forfeiture specification, the $2,859.18 at issue. . . .” (Id. at 4).

Plaintiffs’ evidence on this issue remains weak.

First, Plaintiffs urge the Court to treat the Amended

Complaint itself as an affidavit, since it is verified.

(ECF No. 120 at 1 n.1). See Lavado v. Keohane, 992 F.2d

601, 605 (6th Cir. 1993) (allegations of a verified complaint “ ‘have the same force and effect as an affidavit’

for purposes of responding to a motion for summary

judgment” (quoting Williams v. Browman, 981 F.2d

Another $715, seized from Mrs. Cremeans upon her detainment, was returned through the state-court replevin action and

is excluded from this figure. (Id. ¶¶ 15–16).

App. 39

901, 905 (6th Cir. 1992))). Each Plaintiff also submitted

several affidavits, with Mrs. Cremeans stating: “I estimate that over $50,000 was in the house on January

10, 2018. . . . I know it was at least $35,000 in the

home.” (ECF No. 94-4 ¶ 3). She also attested that “Detective Taczak listed $6000 seized from my bedroom

drawer, when the amount seized was $7,500.” (ECF No.

123-1 ¶ 8).10 Mr. Cremeans stated that, because he

“never received any receipts nor an inventory sheet

listing the exact amount” seized, he had “never provided an exact amount of the currency that [he] possessed in [his] home on January 10, 2018.” (ECF No.

123-2 ¶ 2). Thus, he explained, the amount stated in

the Amended Complaint was “the last known amount

that was actually seized by Defendants from [his]

home.” (Id.). Mr. Cremeans attested, “[b]ased upon belief and information,” that he “possessed $50,000 or

more in cash at the home on that day.” (ECF No. 94-3).

These statements are vague and somewhat contradictory. Plaintiffs “verified” in the Amended Complaint, with no qualifiers or approximations, that the

amount taken from the home was $33,715. (ECF No. 4

¶ 9). Later, they swore that it was “never . . . an exact

amount.” (ECF No. 123-2 ¶ 2). They still have not explained how they knew the amount was “at least

$35,000” (ECF No. 94-4 ¶ 3), nor why they chose to

At the preliminary injunction hearing, Mrs. Cremeans provided a bank withdrawal slip for $7,500, dated approximately two

months before the search. (Hr’g Ex. P-3). Given the lapse of time,

this withdrawal slip is only minimally probative of the amount

that remained on January 10, 2018, much less where it was located within the house.

App. 40

verify $33,715 instead. Moreover, “[s]elf-serving affidavits alone . . . are not enough to create an issue of fact

sufficient to survive summary judgment.” Am. Nat’l

Prop. & Cas. Co., 547 F. Supp. 3d at 750.

Defendants, on the other hand, provide the “case

jacket,” which lists $31,570.82 in “US currency, old

coins, [and] stamps”—i.e., the forfeiture amount of

$30,855.82 plus the $715 returned to Mrs. Cremeans.

(Hr’g Ex. D-1). They also account for chain of custody

via the “Evidence/Property Record Form.” (ECF No.

86-1). To be clear, Defendants deserve some demerits

for their record-keeping. This issue could have been

avoided entirely had they simply itemized the seized

currency, provided Plaintiffs with a receipt, and stated

whether the forfeiture amount was inclusive or exclusive of the change and coin collection. Nonetheless,

the documentary evidence supports Defendants’ claim

that all money seized on January 10, 2018, has been

returned.

Plaintiffs would have the Court reopen discovery

so they can obtain “[t]he best evidence of the amount

[Defendants] seized": the elusive bank receipt that is

the subject of their Motion to Compel. (ECF No. 112;

No. 120 at 2). Defendants, referring to Detective Taczak’s

deposition, maintain that “any record from the bank

count was sealed in the evidence bags and thus returned to Plaintiffs when those bags were unsealed,

and the currency was returned to them on March 19,

2021.” (ECF No. 115 at 1). Plaintiffs claim not to have

the receipt. (ECF No. 120 at 2).

App. 41

The problem, though, is that Plaintiffs’ Motion is

not timely. Written discovery ended four months prior

(see ECF No. 93 (deadline of August 21, 2021)); and

courts routinely decline to compel discovery after it

has closed. See Pittman v. Experian Info. Sols., Inc.,

901 F.3d 619, 642–43 (6th Cir. 2018) (collecting cases).

Plaintiffs’ alternative request for a “spoliation order”

(ECF No. 112 at 1) likewise is untimely: “Generally, a

plaintiff may not raise a claim for spoliation of evidence for the first time in opposition to a defendant’s

motion for summary judgment.” Davison v. Cole Sewell

Corp., 231 F. App’x 444, 451 (6th Cir. 2007). Nor have

Plaintiffs justified their delay in raising the issue.

Their reply emphasizes Defendants’ answer, “N/A,” in

September 2019 to the request for production of “any

deposit slips, receipts and/or any other bank records

which reflect the deposit or withdrawal of the cash

seized from Plaintiffs’ residence or persons.” (ECF

No. 120 at 3; No. 120-1 at 7). Yet, “[a]s far back as the

Replevin Hearing held before Ross County Common

Pleas Court Judge Ater [which occurred in fall 2018],

Defendant Taczak testified that she took money seized

from Plaintiffs’ home to a bank to be counted and received a receipt.” (ECF No. 112 at 2 (footnote omitted)).

This discrepancy was known by September 2019, when

Defendants served their discovery responses. The Motion to Compel finally came on December 21, 2021, in

response to Defendants’ summary judgment motion—

and months after Detective Taczak’s deposition, where

App. 42

the issue was discussed at length. (ECF No. 118, Tr.

72:9–75:13, 82:11–85:17).11

This Court cannot continue chasing the vermillion

kipper of Plaintiffs’ missing currency. Absent additional evidence that it now is too late to adduce, Plaintiffs have not framed a genuine dispute of material fact

on the amount seized. Their Motion to Compel is DENIED, and the issue is resolved for Defendants.

2. Immunity

Absolute Immunity

This brings the Court to Defendants’ Motion for

Summary Judgment, beginning with their argument

for absolute prosecutorial immunity. The doctrine of

prosecutorial immunity originates at common law and

was extended to Section 1983 by the case Imbler v.

Pachtman, 424 U.S. 409 (1976). Defendants are not

themselves prosecutors; but courts take “a functional

approach, which looks to the nature of the function performed, not the identify of the actor who performed it.”

Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (internal quotation marks and citations omitted).

Defendants contend that, in “holding the property

and currency on behalf of the Ross County Prosecutor

pending indictment,” they were performing a “ministerial act . . . not related to a police investigation

Detective Taczak’s deposition was held September 13,

2021. By agreement of the parties, some depositions occurred

shortly after the close of written discovery.

App. 43

function, but rather a prosecutorial function.” (ECF

No. 110 at 10). In support, Defendants cite two cases

extending absolute immunity to law enforcement officers performing prosecutorial functions: Briscoe v. Lahue, 460 U.S. 325 (1983), immunizing a police officer

for allegedly perjured testimony at the plaintiff ’s criminal trial; and Rehberg v. Paulk, 566 U.S. 356 (2012),

with similar facts but before a grand jury. (See ECF No.

110 at 10). Neither of these cases is squarely on point,

so Defendants also attempt to extend a general proposition from Buckley:

A prosecutor’s administrative duties and

those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial

proceedings are not entitled to absolute immunity. See Burns [v. Reed], 500 U.S. [478,]

494–496, 111 S.Ct. [1934,] 1943–1944 [(1991)].

We have not retreated, however, from the

principle that acts undertaken by a prosecutor in preparing for the initiation of judicial

proceedings or for trial, and which occur in the

course of his role as an advocate for the State,

are entitled to the protections of absolute immunity. Those acts must include the professional evaluation of the evidence assembled

by the police and appropriate preparation for

its presentation at trial or before a grand jury

after a decision to seek an indictment has

been made.

509 U.S. at 273. Thus, Defendants reason, “if the Prosecutor is entitled to immunity for the evaluation of

App. 44

evidence assembled by the police, it follows that the police are immune from suit based on their assembly and

retention of that evidence to facilitate the prosecutor’s

evaluation of the evidence and preparation for trial.”

(ECF No. 110 at 11).

That assertion—which is the lynchpin of Defendants’ absolute immunity argument—is without attribution, and the Court is not persuaded that such an

extension is warranted. While Buckley does grant immunity to certain preparatory acts, it also makes clear

that those acts must relate to the prosecutor’s “role as

an advocate.” Buckley’s reasoning does not extend

plainly to the ministerial act of holding evidence, as

opposed to “professional evaluation of the evidence”

and “preparation for its presentation . . . after a decision to seek an indictment has been made.” Buckley,

509 U.S. at 273 (emphasis added).

Furthermore, extensions of absolute immunity are

not made lightly: “Not surprisingly, [the Supreme

Court has] been ‘quite sparing’ in recognizing absolute

immunity for state actors in [the Section 1983] context.” Id. at 269 (quoting Forrester v. White, 484 U.S.

219, 224 (1988)). The hesitation is even greater where,

as here, the act to be immunized occurs pre-indictment. “[O]ne of the most important checks, the judicial

process, will not necessarily restrain out-of-court activities by a prosecutor that occur prior to the initiation

of a prosecution. . . . This is particularly so if a suspect

is not eventually prosecuted. In those circumstances,

the prosecutor’s action is not subjected to the ‘crucible of the judicial process.’ ” Burns, 500 U.S. at 496

App. 45

(quoting Imbler, 424 U.S. at 440 (White, J., concurring)). Sixth Circuit cases, raised in Plaintiffs’ response

brief, lend strong support to that point. See Spurlock v.

Thompson, 330 F.3d 791, 801 (6th Cir. 2003) (rejecting

absolute immunity where conduct “was not intimately

associated with the judicial process”); Prince v. Hicks,

198 F.3d 607, 613 (6th Cir. 1999) (same; “these allegations refer to conduct that occurred while [the prosecutor] performed administrative and investigative

functions that were not intimately associated with the

judicial phase of the criminal proceedings”).

“[T]he official seeking absolute immunity bears

the burden of showing that such immunity is justified

for the function in question.” Burns, 500 U.S. at 486.

Defendants have not met that burden, so their argument for absolute immunity must be rejected.

Qualified Immunity

Though absolute immunity is unavailable, “[q]ualified immunity ‘represents the norm’ for executive officers.” Buckley, 509 U.S. at 273 (quoting Malley v.

Briggs, 475 U.S. 335, 340 (1986)). Qualified immunity

shields government officials “from liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which

a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Once a qualified

immunity defense is asserted, the burden shifts to

the plaintiff to show the official is not entitled to it.

App. 46

Wegener v. City of Covington, 933 F.2d 390, 392 (6th Cir.

1991) (citing Poe v. Haydon, 853 F.2d 418, 425 (6th Cir.

1988)).

Qualified immunity is a two-step analysis: this

Court must determine “whether the officers violated

[Plaintiffs’] constitutional rights, and if so whether

those rights were clearly established at the time.”

Smith v. Stoneburner, 716 F.3d 926, 929 (6th Cir. 2013)

(citing Pearson, 555 U.S. at 236). In this context,

“clearly established” means “at the time of the officer’s

conduct, the law was ‘sufficiently clear that every reasonable official would understand that what he is doing’ is unlawful.” District of Columbia v. Wesby, 138

S. Ct. 577, 589 (2018) (quoting Ashcroft v. al-Kidd, 563

U.S. 731, 741 (2011)).

“A right is not considered clearly established unless it has been authoritatively decided by the United

States Supreme Court, the Court of Appeals, or the

highest court of the state in which the alleged constitutional violation occurred.” Durham v. Nu’man, 97

F.3d 862, 866 (6th Cir. 1996). “It is not enough that a

rule be suggested by then-existing precedent; the

‘rule’s contours must be so well defined that it is clear

to a reasonable officer that his conduct was unlawful

in the situation he confronted.’ ” City of Tahlequah v.

Bond, 142 S. Ct. 9, 11 (2021) (quoting Wesby, 138 S. Ct.

at 590). “This is not to say that an official action is protected by qualified immunity unless the very action in

question has previously been held unlawful; but it is to

say that in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730,

App. 47

739 (2002) (internal citation omitted) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Courts must

“define the clearly established right at issue on the basis of the specific context of the case.” Tolan v. Cotton,

572 U.S. 650, 657 (2014) (internal quotation marks

omitted).

At step one, the Court has little doubt that Plaintiffs’ constitutional rights were violated, for substantially the reasons stated in the preliminary injunction

ruling. As the Court previously explained, significant

delay in bringing a forfeiture proceeding can rise to the

level of a due process violation under the Fifth and

Fourteenth Amendments.12 See United States v. Eight

Thousand Eight Hundred and Fifty Dollars ($8,850) in

U.S. Currency, 461 U.S. 555, 565 (1983). Such claims

are governed by the Barker v. Wingo balancing test.

407 U.S. 514 (1972). The four factors to be weighed are

“the length of the delay, the reason for the delay, the

claimant’s assertion of his right, and the prejudice to

the claimant.” United States v. Ninety Three Firearms,

330 F.3d 414, 424–25 (6th Cir. 2003) (citing Barker, 407

U.S. at 530). The “ ‘triggering mechanism’ ” and “overarching factor is the length of the delay.” $8,850, 461

U.S. at 565 (quoting Barker, 407 U.S. at 530). The Supreme Court has found a delay of 18 months to be

“quite significant,” Id., and has remarked that “the

lower courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches

The Fifth Amendment Due Process Clause has been “incorporated into the Fourteenth.” Ingraham v. Wright, 430 U.S.

651, 672 (1977).

App. 48

one year.” Doggett v. United States, 505 U.S. 647, 652

n.1 (1992).

The delay in this case—from the seizure of Plaintiffs’ property in January 2018 to the second indictment in August 2019—was deemed “substantial and

presumptively prejudicial” in the Court’s preliminary

injunction ruling. (ECF No. 31 at 19). Addressing the

other Barker factors, the Court found that “[t]he Chillicothe Police Department acted diligently in investigating the case . . . [b]ut from November 9, 2018, when

Officer Taczak submitted the case to the prosecutor,

the Chillicothe Defendants have offered no explanation for the delay in bringing the indictment, other

than being overworked and understaffed.” (Id. at 20).13

Even though Plaintiffs did not initiate a hearing under

O.R.C. § 2981.03(A)(4), the Court wrote that Plaintiffs

“adequately asserted their rights to the property” by

making written requests to the Chillicothe Law Director and by filing the state-court action for replevin.

(ECF No. 31 at 21). Finally, the Court found Plaintiffs

November 9, 2018, is the date listed on the “case jacket.”

(Hr’g Ex. D-1). Plaintiffs attempt to make this a disputed fact by

pointing to Detective Taczak’s affidavit preceding the preliminary

injunction hearing, in which she attested: “In approximately October of 2018, I completed my investigation and submitted it to

the Ross County Prosecutor for charges.” (ECF No. 13-1 ¶ 13).

Plaintiffs repeatedly assert that Detective Taczak lied about the

November date. (ECF No. 123 at 12–14). But her testimony is consistent: November 9 is “approximately” October. Furthermore,

Detective Taczak explained at the preliminary injunction hearing

that the affidavit in question was drafted in haste, while she was

in another trial and lacked access to the files that would refresh

her recollection. (ECF No. 36, Tr. 74:8–75:3).

App. 49

were entitled to a presumption of prejudice since “Defendant’s failure to bring a forfeiture specification in a

timely manner was due to negligence.” (Id. at 22). Balancing the factors, the Court concluded that the Barker

test favored Plaintiffs. (Id. at 22–24).

The fact remains: “Due process requires a meaningful hearing within a meaningful time.” (Id. at 24).

The Court was, and still is, “at a loss to comprehend

the state’s failure to file in a timely manner civil forfeiture or request forfeiture in the first indictment.” (Id.).

Thus, the Barker analysis in the preliminary injunction ruling continues to show a constitutional violation.

Even so, genuine issues of material fact remain regarding who is accountable for the deprivation. As will

be discussed in the next subsection, Defendants have

attempted to shift responsibility onto the Ross County

Prosecutor, a non-party in this action. The Court’s due

process concerns stem from the delay after Detective

Taczak submitted the case to the prosecutor, and the

extent of Defendants’ involvement therein is a factual

dispute that cannot be resolved on summary judgment. This alone would preclude summary judgment

on grounds of qualified immunity. See Hamilton v. Myers, 281 F.3d 520, 531 (6th Cir. 2002) (“Although the

application of qualified immunity comprises a legal issue, summary judgment is inappropriate when conflicting evidence creates subordinate predicate factual

questions which must be resolved by a fact finder at

trial.”); Sova v. City of Mt. Pleasant, 142 F.3d 898, 903

(6th Cir. 1998) (“Where, as here, the legal question of

App. 50

qualified immunity turns upon which version of the

facts one accepts, the jury, not the judge, must determine liability.”).

Assuming, momentarily, that the due process violation rests on Defendants’ shoulders, the Court proceeds to step two: whether the right was clearly

established at the time of the violation. “It is Plaintiffs’

position that $8,850 made it clearly established that

Plaintiff James Cremeans had a constitutional right

for defendants to file a petition for forfeiture (mere

form) before 23 months.” (ECF No. 123 at 18 (emphasis

original)).14 The Court concurs.

In that case, federal customs agents seized the infamous $8,850, which a traveler had failed to declare

in violation of the Bank Secrecy Act. $8,850, 461 U.S.

at 557–58. The claimant promptly filed a “petition for

remission or mitigation” with the Customs Service. Id.

at 558–59. Meanwhile, special agents investigated

whether the seized currency was connected to narcotics. Id. at 559. Approximately 9 months after the

seizure, the investigation culminated in a criminal indictment on two counts: a felony count for making false

statements, and a misdemeanor count (including criminal forfeiture) for the reporting violation. Id. at 560.

At trial, about 6 months later, the claimant was convicted of the felony and acquitted of the misdemeanor.

How Plaintiffs divined 23 months is unclear. By the

Court’s calculation, the delay was 19 months and 6 days: from

January 10, 2018, to August 16, 2019. Regardless, the delay at

issue in $8,850 was 18 months (shorter than this case by either

measure), so the discrepancy is not of consequence.

App. 51

Id. Another 3 months after the verdict, the Customs

Service initiated civil forfeiture proceedings. Id. at 560.

The claimant raised affirmative defenses “that the

Government’s ‘dilatory processing’ of her petition for

remission or mitigation and ‘dilatory’ commencement

of the civil forfeiture action violated her right to due

process.” Id. at 561.

The Supreme Court applied the Barker factors,

first noting that “the delay here—some 18 months—

[was] quite significant. Being deprived of this substantial sum of money for a year and a half is undoubtedly

a significant burden.” Id. at 565. The Court also observed, though, that the case required a complex investigation and that the government acted diligently at

all stages. Id. at 568. On the remaining factors, the

Court found that the claimant did not pursue all judicial remedies and had not shown prejudice from the

delay. Id. at 569. Balancing the factors, the Court concluded:

In this case, the balance of factors indicates

that the Government’s delay in instituting

civil forfeiture proceedings was reasonable.

Although the 18-month delay was a substantial period of time, it was justified by the Government’s diligent efforts in processing the

petition for mitigation or remission and in

pursuing related criminal proceedings. [Claimant] never indicated that she desired early

commencement of a civil forfeiture proceeding, and she has not asserted or shown that

the delay prejudiced her ability to defend

App. 52

against forfeiture. Therefore, the claimant was

not denied due process of law.

Id. at 569–70.

The Ohio Supreme Court—also a source of controlling authority, see Durham, 97 F.3d at 866—endorsed

the four factors of Barker and $8,850 in the case State

v. Baumholtz, 553 N.E.2d 635 (Ohio 1990). There, the

court considered a delay of 5 and a half months between the sheriff ’s seizure of an automobile (allegedly

used in the commission of a drug offense) and commencement of forfeiture proceedings. Id. at 635–36.

The court found the delay to be “significant” and “unreasonable,” since the state “failed to set forth credible

reasons for such a lengthy delay.” Id. at 639–40. Even

though the claimant had not clearly asserted her right

to a timely hearing or shown prejudice from the delay,

making for a “close case,” the court found in the claimant’s favor. Id. at 640. The court gave “great weight” to

“both the length of the delay and the lack of any credible reasons for the failure to promptly file a forfeiture

petition.” Id.

Defendants seek to cabin $8,850 for three reasons:

it arises in the customs context, it lacks an applicable

state-law remedy, and “the property was not being held

subject to an investigation for a separate criminal offense.” (ECF No. 130 at 6–7). The first point improperly

demands an exact match between the cited case and

the conduct at issue, contra al-Kidd, 563 U.S. at 741

(“We do not require a case directly on point, but existing precedent must have placed the statutory or

App. 53

constitutional question beyond debate.”). It also overlooks Baumholtz, discussed in Plaintiffs’ brief, which is

even closer factually.15 The second point is contrary to

the Court’s holding at the preliminary injunction

stage, discussed in greater detail infra Section III.B.4,

that the adequacy of state remedies is not at issue in

this action. (See ECF No. 31 at 10–12). Additionally,

the claimant in Baumholtz prevailed without any evidence that she asserted her rights, whereas Plaintiffs

made multiple demands and filed a replevin action.

553 N.E.2d at 639. The last point neglects that in

$8,850, much like the present case, special agents also

were investigating whether the seized currency was

connected to drug smuggling. 461 U.S. at 559.

Together, $8,850 and Baumholtz clearly establish

that there is a due process right to a forfeiture proceeding within a reasonable time, which will be violated if

delays exceed more than a few months without legitimate explanation. That is the case at hand. In the first

10 months, while Defendants diligently investigated

the suspected drug offenses, it was reasonable to think

that Barker and $8,850 would forgive their delay. Once

Baumholtz did apply an earlier version of Ohio’s forfeiture

statute, as Defendants note in passing. (See ECF No. 130 at 7 n.1).

The current version is codified at O.R.C. § 2981.03, last amended

in 2017, whereas Baumholtz considered O.R.C. § 2933.43, repealed in 2007. In Baumholtz and here, however, the issue is what

the statute lacks: neither version provides a specific timeframe in

which the State must initiate a forfeiture action. Compare Baumholtz, 553 N.E.2d at 636 (discussing this omission in O.R.C.

§ 2933.43), with O.R.C. § 2981.03. In this respect, the statutory

schemes are alike.

App. 54

Detective Taczak submitted the file to the prosecutor,

however, it languished another 9 months with no forfeiture specification. To this day, Defendants have offered no credible explanation for the latter half of the

19-month delay. Their instant Motion simply lays the

problem at the prosecutor’s foot. (See ECF No. 110 at

14). Under these circumstances, reasonable officers

would have known that Plaintiffs had been deprived of

their property without due process of law. Therefore,

Defendants are not entitled to summary judgment on

grounds of qualified immunity.

3. Personal Involvement

Defendants next contend that “[e]ven if there is a

Fourteenth Amendment violation, it was not caused by

the named Defendants.” (Id. at 15–17). Defendants

plead “they had no personal involvement in the delay

once the investigation concluded and was submitted to

the prosecutor.” (Id. at 16 (emphasis original)). Importantly, as illustrated in the preliminary injunction

ruling, this Court’s due process concerns arise from the

delay after that point:

The Chillicothe Police Department acted diligently in investigating the case. From January 10, 2018, when the search warrant was

executed and the property seized, to June

2018, Officer Taczak was issuing subpoenas

and waiting for responses. From June to September, the Chillicothe Police Department

was compiling the case. This is a reasonable

App. 55

amount of time to expect law enforcement to

compile the results of their investigation.

But from November 9, 2018, when Officer

Taczak submitted the case to the prosecutor,

the Chillicothe Defendants have offered no

explanation for the delay in bringing the indictment, other than being overworked and

understaffed. . . . The Chillicothe Defendants

have attempted no explanation for the omission of a forfeiture count in the first indictment or for the additional delay before the

second indictment. Thus, it appears that the

Defendant’s failure to bring a forfeiture specification in a timely manner is due to negligence.

(ECF No. 31 at 20).

By Defendants’ account, after November 9, 2018,

the City merely “was storing the evidence for the prosecutor” and “lacked any authority to return the property.” (ECF No. 110 at 16). “Personal involvement is

necessary to establish section 1983 liability,” so this defense is complete if proven. Murphy, 406 F. App’x at

974 (citing Gibson, 926 F.2d at 535).

The degree of Defendants’ involvement, however,

is less than clear. Beyond Chief Washburn’s own Declaration (ECF No. 110-3), Defendants submit no evidence that they lacked control or authority over the

property after the case was submitted to the prosecutor. Other parts of the record, when construed in

Plaintiffs’ favor, do suggest that Defendants had meaningful involvement after the case was submitted to the

App. 56

prosecutor. A letter from the City Law Director dated

January 16, 2019, reads: “Detective Taczak indicated

that the Cremeans’ dashboard camera may now be

returned and requested you contact their office . . .

to make arrangements.” (ECF No. 123-3 (emphasis

added)). This presumably came in response to one of

Plaintiffs’ several requests for return of their property,

made to “Defendant Chief Keith Washburn and other

City officials.” (ECF No. 4 ¶¶ 29, 33). Additionally, the

“Evidence/Property Room Log” records multiple “Returns” while the case was with the prosecutor, each

signed “Taczak.” (ECF No. 86-1 at 2 (entries of 5/8/20

and 5/19/20)). Detective Taczak also signed the final return, after criminal charges were dismissed. (Id. (entry

of 3/19/21)). Finally, it is undisputed that the City had

the ability to institute its own forfeiture proceedings

under O.R.C. § 2981.03, then, if necessary, seek a stay

pending criminal indictment. (See ECF No. 123 at 10,

13–14 (discussing this practice)). Defendants argue

only that they were not “required” to do so. (ECF No.

130 at 10).

As a final note, the personal involvement defense

is somewhat at odds with Defendants’ positions at earlier stages of this litigation. At the preliminary injunction hearing, when Plaintiffs’ case file rested with the

Ross County Prosecutor, Defendants “agreed to stipulate that the property is still in the custody of the city

of Chillicothe and the police department.” (ECF No. 37,

Tr. 39:3–9). “Custody” does not necessarily mean control; but if Defendants “did not even have the authority

to return the property” (ECF No. 110 at 16 (emphasis

App. 57

original)), one would expect that argument to feature

prominently in Defendants’ opposition to a preliminary injunction. It did not. (ECF No. 37, Tr. 52:25–60:4;

see also ECF No. 13). Nor did Defendants raise their

lack of authority as a basis for staying or clarifying the

Court’s order to return specific property. (See ECF Nos.

35 & 47). Defendants certainly are not precluded from

making these arguments now; but it does leave their

claim of “scrivener’s error” in the Court’s preliminary

injunction ruling (to wit, by referring to “Defendants”

failing to bring a forfeiture specification, rather than

“the County Prosecutor”) an audacious one. (ECF No.

110 at 17 n.7, 20 n.9).

In sum, the evidence does not show decisively that

Defendants can disclaim responsibility after November 9, 2018. Their involvement in the ensuing delay

remains a triable issue, so summary judgment is improper.

4. State Remedies

Defendants also argue that Plaintiffs’ claims are

precluded by the availability of adequate state remedies. (ECF No. 110 at 18–21). Specifically, Plaintiffs

had the ability under O.R.C. § 2981.03(A)(4) to file a

motion for return of their property and obtain a hearing within 21 days. The Court considered this issue in

depth during the preliminary injunction stage, ultimately finding for Plaintiffs:

The alleged due process violation here occurred as a result of established state process.

App. 58

The Cremeans have argued that Ohio does

not provide an adequate remedy because Ohio

law does not provide a timeframe in which the

state is required to bring a forfeiture action.

Thus, the Chillicothe Police Department’s and

Ross County prosecutor’s actions were not

random or unauthorized, and Parratt [v. Taylor, 451 U.S. 527 (1981)] does not apply. Rodgers v. 36th Dist. Court, 529 F. App’x 642, 650

(6th Cir. 2013) (finding that plaintiffs were not

required to show inadequacy of state remedies where the claims giving rise to the alleged due process claim arose from conduct

that defendants believed was justified under

the parties’ CBA). The underlying logic of the

Parratt rule supports this conclusion. Parratt

excuses pre-deprivation remedies where such

“remedies are impossible.” Macene v. MJW,

Inc., 951 F.2d 700, 706 (6th Cir. 1991). Here,

however, Ohio has the opportunity to provide

plaintiffs like the Cremeans with adequate

process—a forfeiture proceeding. Thus, the

Cremeans are not required to show inadequacy of state procedure before bringing their

§ 1983 claim for violation of due process.

(ECF No. 31 at 11–12).

Then, ruling on Defendants’ Motion to Stay, the

Court again considered whether it “was required to apply the Vicory-Parratt line of cases requiring the exhaustion of state remedies”—as in Great Elk Dancer

for his Elk Nation v. City of Logan, 129 F. Supp. 3d 546,

549 (S.D. Ohio 2015)—“because Plaintiffs allege that

App. 59

the property deprivation was a result of ‘alleged unauthorized conduct.’ ” (ECF No. 45 at 4).

Not so. As this court indicated in its order

granting the preliminary injunction, Plaintiffs are alleging that they have suffered a

constitutional violation as a result of a delay

in bringing a forfeiture proceeding because

Ohio law does not provide a timeframe in

which the state is required to bring a forfeiture action. (ECF No. 1 at 5–6). They are not

alleging, as the plaintiff did in Great Elk

Dancer, that defendants applied existing laws

in an unconstitutional manner due to plaintiff ’s nationality. (ECF No. 43 at 3; No. 42-1)

(quoting Great Elk Dancer and noting that in

that case, police “wrongfully served, a search

warrant.”); see also Great Elk Dancer, 129

F. Supp. 3d 546, 549 (S.D. Ohio 2015). Instead,

Plaintiffs allege that the state’s policy of holding seized property “from the citizenry for all

eternity” pending an “ongoing investigation”

is unconstitutional because it constitutes a

“deprivation of property caused by conduct

undertaken pursuant to established state procedures.” (ECF No. 1 at 5–6). Thus, Defendants have failed to show that Great Elk

Dancer applies in this instance.

(Id.).

Defendants correctly note that these preliminary

rulings do not bind the Court on summary judgment.

(ECF No. 130 at 10–11). See Tri Cty. Wholesale Distribs.

v. Labatt U.S. Operating Co., 66 F. Supp. 3d 974, 981

(S.D. Ohio 2014) (“the law-of-the-case doctrine does not

App. 60

generally apply to preliminary injunction decisions”).

Most of their present arguments, however, track those

that the Court rejected in the above-quoted rulings.

Defendants’ sole new argument seizes on references to

“negligence” in the Court’s preliminary injunction ruling to claim “that this is a case about random, unauthorized conduct of state actors—specifically, the Ross

County Prosecutor.” (ECF No. 110 at 19). This can be

addressed in short order. References to “negligence,”

made in the context of Barker balancing, do not mean

that the acts were “random” or “unauthorized.” The

same opinion explicitly stated: “Thus, the Chillicothe

Police Department’s and Ross County prosecutor’s actions were not random or unauthorized, and Parratt

does not apply.” (ECF No. 31 at 11–12 (emphasis

added)).

Absent other new evidence or argument, the Court

has no grounds to diverge from its earlier holdings. “Inconsistency is the antithesis of the rule of law.”

LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir.

1996). Therefore, the Court again holds that Plaintiffs

are not required to show exhaustion or inadequacy of

state remedies.

5. Municipal Liability

Defendants next request summary judgment for

claims against the City. Per the seminal case Monell v.

Department of Social Services, a municipality “may not

be sued under § 1983 for an injury inflicted solely by

its employees or agents”; rather, the injury must be

App. 61

inflicted by “execution of a government’s policy or custom.” 436 U.S. 658, 694 (1978). “A plaintiff can make a

showing of an illegal policy or custom by demonstrating one of the following: (1) the existence of an illegal

official policy or legislative enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the existence of a policy of inadequate

training or supervision; or (4) the existence of a custom

of tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir.

2013).

The Amended Complaint supports a claim under

the first theory, “official policy.” (See ECF No. 4 ¶¶ 24–

25, 30–32). As Plaintiffs frame it in their response

brief: “Plaintiffs alleged that the City continued to hold

the property at issue due to its policy that they could

hold it if there was a ‘continuing’ or ‘ongoing’ investigation.” (ECF No. 123 at 19). The Amended Complaint

does not evince any theories of ratification, inadequate

training or supervision, or custom of tolerance or acquiescence.16 An “official policy” claim, though, is consistent with Plaintiffs’ theory of the case, endorsed in

the Court’s preliminary injunction ruling, that “[t]he

Plaintiffs’ brief does contain a singular reference to “custom and non-action.” (ECF No. 123 at 19). Insofar as Plaintiffs

intend to assert a custom theory, Defendants correctly raise the

dearth of evidence (or even allegations) on “any pattern of similar

incidents.” (ECF No. 130 at 14). That deficiency is fatal. See Doe

v. Claiborne County, 103 F.3d 495, 508 (6th Cir. 1996) (“inaction”

theory requires “a clear and persistent pattern” of illegal activity).

App. 62

alleged due process violation here occurred as a result

of established state process.” (ECF No. 31 at 11).

As such, the Court must reject Defendants’ position that “there is no Monell claim” pled. (ECF No. 110

at 31). Only one other argument is made against municipal liability: that “the City cannot be held liable

under Monell absent an underlying constitutional

violation.” (Id.). This rises or falls with Defendants’

primary arguments, which the Court already has rejected. Plaintiffs’ claims against the City will remain.

6. Damages and Relief

Finally, the Court arrives at damages, an issue

which received negligible attention in the parties’ summary judgment motions. Plaintiffs’ Motion gives no definitive figure for monetary damages, stating only that

they are “well into six figures” (ECF No. 94 at 19 n.7);

and it does not brief the requests for declaratory or permanent injunctive relief. Defendants, meanwhile,

make a single passing reference to mootness now that

Plaintiffs’ property has been returned. (ECF No. 110 at

9). Plaintiffs did brief remedies in their combined response and reply (ECF No. 123 at 33–38), and Defendants moved to strike the arguments as untimely claims

for summary judgment. (ECF No. 131). Plaintiffs clarified that they were not raising any new issues, but rather responding to Defendants’ mootness claim. (ECF

No. 132 at 1–3).

App. 63

With this understanding, the remedies section of

Plaintiffs’ response brief is permissible, and Defendants’ Motion to Strike is DENIED. Furthermore, since

neither Motion for Summary Judgment develops the

remedies issue in sufficient depth, the Court is disinclined to narrow the available relief at this stage. Damages and non-monetary relief, if any, will remain an

open issue.

To summarize, several factual disputes preclude

summary judgment on Plaintiffs’ due process claims.

Thus, both Motions for Summary Judgment are DENIED as to Count II. In the interest of focusing the

parties’ attention and avoiding further ancillary disputes, these are the core triable issues in the Court’s

view: (1) whether Detective Taczak and Chief Washburn were personally involved in the delay after November 9, 2018, such that they could be liable for

violating Plaintiffs’ due process rights; (2) whether the

City of Chillicothe is liable under Monell for an illegal

official policy of holding seized property without initiating timely forfeiture proceedings; and (3) what remedies, if any, Plaintiffs are entitled to receive.

IV.

CONCLUSION

For the reasons stated above, Plaintiffs’ Motion for

Summary Judgment (ECF No. 94) is DENIED. Defendants’ Motion for Summary Judgment (ECF No.

110) is GRANTED as to Count I and DENIED as to

Count II. Plaintiffs’ Motion to Compel Discovery (ECF

App. 64

No. 112) is DENIED, and Defendants’ Motion to Strike

(ECF No. 131) is DENIED. A trial order will issue

under separate cover.

IT IS SO ORDERED.

/s/ Algenon L. Marbley

ALGENON L. MARBLEY

CHIEF UNITED STATES

DISTRICT JUDGE

DATED: August 17, 2022

App. 65

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

NICOLETTE CREMEANS, :

et al.,

Plaintiffs,

SAMANTHA TACZAK,

et al.,

Defendants.

Case No. 2:19-cv-2703

CHIEF JUDGE

ALGENON L.

MARBLEY

Magistrate Judge

Deavers

OPINION & ORDER

(Filed Oct. 23, 2019)

This matter is before the Court on Plaintiffs, Nicolette Cremeans’s and James Cremeans’s, Motion for

a Preliminary Injunction. (ECF No. 2). Plaintiffs James

and Nicolette Cremeans allege that the Chillicothe

Police Department has violated their constitutional

rights by failing to institute in a timely manner forfeiture proceedings or return property seized approximately twenty months ago. The Cremeans seek an

order declaring the actions of the Chillicothe Police Department unconstitutional and the return of property

seized during the execution of a search warrant on

January 10, 2018. For the reasons set forth below, the

Cremeans’ Motion is hereby GRANTED.

App. 66

BACKGROUND

Factual Background

On January 10, 2018, Chillicothe police officers executed a search warrant at Plaintiffs’ residence and an

additional property that they were in the process of

purchasing. (ECF No. 1 at 3–4). The search warrant related mostly to suspected drug crimes but authorized

searching for broad categories of items. (ECF No. 1

at 5). While officers did not find any drugs, they did

seize approximately $33,715 in cash and the following

items:

one jar of quarters and rolled change, lease

agreements, an old rare coin collection, bank

statements and other financial documents,

car and motorcycle titles, a cell phone, thumb

drives, a camera, a hard drive, sim cards, financial documents, car keys, passports[,] and

other property.

(ECF No. 1 at 3).

That same day, the Cremeans allege they were

both arrested and detained while the searches were

conducted. Mr. Cremeans was stopped for a traffic violation, and officers seized his cell phone and $1,080 in

cash from his person. (ECF No. 1 at 3). Mrs. Cremeans

was also taken into custody, and officers seized her cell

phone and $715 that she was carrying. (ECF No. 1 at

4).

In September 2018, the Cremeans brought an action for replevin or, in the alternative, conversion in

Ross County Court of Common Pleas. The state court

App. 67

judge ultimately ordered the return of the cell phone

and $715 seized from Nicolette Cremeans. The judge

denied replevin as to “all other requested items . . . because there is an ongoing criminal investigation.”

(ECF No. 9, Exh. B). Although the Entry of Judgment

does not state whether the dismissal was with or without prejudice, the Ross County Court of Common Pleas

amended its order nunc pro tunc on July 15, 2019, to

state that the dismissal was without prejudice. (Pls.’

Ex. 1).1

Chillicothe has outlined the timeline of the investigation as follows: (1) Officers execute the search

warrant on January 10, 2018; (2) Detective Taczak

subpoenas tax returns and bank records in February

and March 2018; (3) Taczak receives partial response

to bank subpoenas in April; (4) Taczak receives full response in June; (5) the case against the Cremeans is

compiled from June to September. (ECF No. 13 at 5).

Officer Taczak testified at the Preliminary Injunction

hearing that she submitted the case to the Ross

County Prosecutor on November 9, 2018. The Ross

County Prosecutor filed an indictment against James

Cremeans on July 12, 2019. (Defs.’ Ex. 4).

At the time the Cremeans filed this suit on June

26, 2019, the City of Chillicothe had neither brought a

formal forfeiture action nor charged the Cremeans

with any crimes. Between the time that the Cremeans

Plaintiffs submitted the recording of the state court proceedings. This Court has heard the recording of the state court

proceedings on this case in their entirety.

App. 68

filed this suit and this Court held a hearing on the Motion for Preliminary Injunction, the Ross County Prosecutor brought an indictment against Mr. Cremeans

for Receiving Proceeds of an Offense Subject to Forfeiture Proceedings under Ohio Revised Code § 2927.21.

(Defs.’ Ex. 4). That indictment did not include a separate forfeiture specification, nor had state authorities

initiated separate civil forfeiture proceedings.

On August 16, 2019, however, a state grand jury

returned a new indictment against James Cremeans.

(ECF No. 27-1). That indictment includes a separate

forfeiture specification. That specification reads as follows:

SPECIFICATION: The grand jurors further

find and specify that U.S. currency in the

amount equal to $30,855.82 belonging to

James D. Cremeans, specifically, the $1080.00

in U.S. currency seized from the person of the

said James D. Cremeans, and the $29,775.82

in U.S. currency seized from the residence of

the said James D. Cremeans, located at 463

Charles Street, Chillicothe, Ohio 45601 at the

time of this offense, is subject to forfeiture.

(ECF No. 27-1 at 2).

Procedural Background

The Cremeans sued the City of Chillicothe, the

Chief of Police, Officer Taczak, and other unknown officers (“the Chillicothe Defendants”). The Cremeans allege that the City’s failure to bring a formal forfeiture

App. 69

action or return their property is a violation of their

due process rights under the Fourteenth Amendment.

They request that the Police Department return their

property. This Court granted in part and denied in part

the Plaintiffs’ Motion for a Temporary Restraining Order. (ECF No. 11). That Order did not require the return of the Cremeans’ property but rather instructed

the Chillicothe Police Department to hold the Cremeans’ property in trust and enjoined them from conducting any further tests on the property. This Court

then held a Preliminary Injunction hearing on the Motion.

After the Preliminary Injunction hearing, the Cremeans moved to reopen the Preliminary Injunction

hearing, alleging that perhaps the Cremeans’ money

had been “misappropriated.” (ECF No. 21 at 2). The

Cremeans have asked Defendants’ counsel for a receipt

showing that the Cremeans’ money had been deposited. Defense counsel has not responded to that request. Additionally, the Cremeans point to the lack of

any receipts, the lack of any mention of the amount of

cash in the indictment or “search warrant inventory

return sheet or in any court proceeding, including testimony in this Court.” (ECF No. 21 at 1). The Cremeans

have also submitted news articles reporting on a Ross

County deputy under investigation for missing “money

intended for drug informants,” (ECF No. 21 at 5), and

the Pike County sheriff who is under indictment (ECF

No. 21 at 7).

App. 70

III.

LAW AND ANALYSIS

The “purpose of a preliminary injunction is merely

to preserve the relative positions of the parties until a

trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). In light of its “limited

purpose,” a preliminary injunction is “customarily

granted on the basis of procedures that are less formal

and evidence that is less complete than in a trial on

the merits.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir.

2007). Accordingly, a party need not prove her case in

full at a preliminary injunction hearing. Id. But see

Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000)

(noting that the “proof required for the plaintiff to obtain a preliminary injunction is much more stringent

than the proof required to survive a summary judgment motion”).

When considering a motion for preliminary injunction, a district court must balance four factors: (1)

whether the movant has a strong likelihood of success

on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm

to others; and (4) whether the public interest would be

served by the issuance of the injunction. Ne. Ohio Coal.

for the Homeless v. Husted, 696 F.3d 580, 590–91 (6th

Cir. 2012). These four considerations are “factors to

be balanced, not prerequisites that must be met.”

Certified Restoration, 511 F.3d at 542. Whether the

combination of the factors weighs in favor of issuing

injunctive relief in a particular case is left to the

App. 71

discretion of the district court. See Leary, 228 F.3d at

739. When plaintiffs allege a constitutional violation,

however, “the likelihood of success on the merits often

will be the determinative factor.” Obama for America v.

Husted, 697 F.3d 423, 436 (6th Cir. 2012) (quoting

Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009)).

Defendants have moved to supplement the record

with the August 16, 2019 indictment. (ECF No. 27).

This indictment relates directly to Plaintiffs’ arguments that the state has failed to file any forfeiture.

Additionally, Plaintiffs have also filed supplemental

documents and memoranda, without leave of court.

Therefore, Defendants’ Motion to Supplement the Record is hereby GRANTED. See Phelps v. MacConnell,

No. 3:12cv00344, 2014 W 2006716, at *2 (S.D. Ohio

May 16, 2014) (granting motion to supplement record

where plaintiffs had made arguments regarding the

documents sought to be added and “because Plaintiff

has also submitted some of those [documents] into the

record”).

The Cremeans have moved to reopen the preliminary injunction proceedings based on the failure of the

Chillicothe Defendants to provide a deposit receipt for

the Cremeans’ money and a speculation that the

money may have been stolen. The Cremeans rest this

assertion on generalized facts from news reports of police misconduct. The Cremeans allege that one individual involved in the same task force as Officer Taczak is

under investigation for stealing money that should

have been given to drug informants. (ECF No. 21 at 1–

2). The Chillicothe Defendants have countered that

App. 72

their time to respond to the Cremeans’ request for the

receipt has not yet expired. (ECF No. 22 at 2). Even

assuming that the Cremeans’ allegations are true, Preliminary injunction proceedings necessarily occur

without the benefit of full discovery. These allegations,

which at this point remain highly speculative, can be

pursued in the normal course of discovery. To reopen

the proceedings every time new information is discovered would be to short-circuit the discovery process

and any briefing or full proceedings on the merits.

Plaintiffs’ Motion to Reopen the Preliminary Injunction Hearing is hereby DENIED.

Likelihood of Success on the Merits

1. The Cremeans Have Standing

Chillicothe Police Department argues that the

Cremeans do not have standing because Mr. Cremeans

told officers that the money they seized belonged to his

uncle and grandmother. (ECF No. 13 at 6; ECF No. 13

Exh. A ¶8). See Hayes v. Carter, No. 96-2209, 1997 U.S.

App. LEXIS 30184, at *4 (Oct. 29, 2997) (noting that

one plaintiff did not have standing “because she did not

provide evidence of ownership in the forfeited property.”) (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 560 (1992)). Mr. Cremeans denies making these

statements.

Even if Mr. Cremeans told officers that some of the

money belonged to his grandmother and uncle, the

Cremeans nevertheless have standing to assert these

claims. For Article III standing to challenge a forfeiture

App. 73

action, “a claimant must have a colorable ownership,

possessory or security interest in at least a portion of

the defendant property.” U.S. v. $515,060.42 in U.S.

Currency, 152 F.3d 491, 497 (6th Cir. 1998). A possessory interest may suffice to establish standing. Id. at

498. But in relying on simple possession to establish

standing, such possession “must be accompanied by

factual allegations regarding how the claimant came

to possess the property, the nature of the claimant’s relationship to the property, and/or the story behind the

claimant’s control of the property.” Id. Although these

pronouncements were made in the context of standing

to challenge a judicial forfeiture action, this Court sees

no reason why these same considerations should not

apply to an action seeking return of property because

of a due process violation. Here, James Cremeans has

testified that the rare coins collection was a gift from

his mother before she died. He also testified that $7500

of the cash belonged to his wife, also a party to this

suit. Mr. Cremeans explained that he has a power of

attorney to take care of his uncle’s finances and power

of attorney to care for his grandmother. He sets aside

some money to use in caring for his grandmother.

These powers of attorney may explain why officers believed that some of the money did not belong to James

Cremeans. Thus, the Cremeans have standing because

they possessed the property at the time of the seizure.

App. 74

2. The Cremeans’ Claims

Are Not Barred by Res Judicata.

The Cremeans brought an action in Ross County

Court of Common Pleas in September 2018 for return

of their property. The judge ordered the return of $715

and Mrs. Cremeans’s cell phone but denied replevin as

to “all other requested items . . . because there is an

ongoing criminal investigation.” (ECF No. 9, Exh. B).

After the Cremeans filed this Motion for Preliminary

Injunction, and before the hearing on the matter, the

judge in the Ross County matter amended his order

nunc pro tunc to state that the “matter is dismissed

without prejudice.” (Pls.’ Ex. 1). Chillicothe Police Department argues that the Cremeans’ claims are barred

by res judicata because the Cremeans already sought

the return of their property in state court, and the

judge in Ross County entered a final judgment.

A federal court “must give the same effect to a

state court judgment that would be given by a court

of the state in which the judgment was rendered.”

Hapgood v. City of Warren, 127 F.3d 490, 493 (6th Cir.

1997) (quoting Hospital Underwriting Grp, Inc. v. Summit Health Ltd., 63 F.3d 486, 494 (6th Cir. 1995)). This

Court therefore looks to Ohio law in deciding whether

the Cremeans’ claims are precluded. Res judicata has

two components: claim preclusion and issue preclusion. Claim preclusion is broader than issue preclusion

in that “[c]laim preclusion prevents subsequent actions, by the same parties or their privies, based upon

any claim arising out of a transaction that was the subject matter of a previous action.” O’Nesti v. DeBartolo

App. 75

Realty Corp., 113 Ohio St.3d 59, 61 (Ohio 2007) (citing

Fort Frye Teachers Assn, OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395 (Ohio 1998)). Issue

preclusion bars “relitigation of any fact or point that

was determined by a court of competent jurisdiction in

a previous action between the same parties or their

privies.” Id. Defendants have made their argument

based on claim preclusion, arguing that these claims

should have been brought in state court. (ECF No. 9 at

4).

Under Ohio law, claim preclusion applies if four

requirements are met:

(1) a prior final, valid decision on the merits

by a court of competent jurisdiction; (2) a second action involving the same parties, or their

privies, as the first; (3) a second action raising

claims that were or could have been litigated

in the first action; and (4) a second action arising out of the transaction or occurrence that

was the subject matter of the previous action.

Hapgood, 127 F.3d at 493. Plaintiffs argue that the

first, third, and fourth requirements are not satisfied

here.

Whether a dismissal order constitutes an adjudication on the merits depends on whether the dismissal

was with prejudice or without prejudice. Generally, “[a]

dismissal with prejudice operates as an adjudication

on the merits.” Fletcher v. Univ. Hosps. of Cleveland,

120 Ohio St.3d 167, 171 (Ohio 2008). But, when a

case is dismissed “otherwise than on the merits,” the

App. 76

dismissal “should be without prejudice.” Id. A dismissal without prejudice has no res judicata effect. See

Goudlock v. Voorhies, 119 Ohio St.3d 398, 400 (Ohio

2008). The Ross County judge amended his order to

state that the case was dismissed without prejudice.

Thus, the Ross County judgment has no res judicata

effect, and the Cremeans’ claims are not precluded.

3. Due Process Claim

The Cremeans allege that Chillicothe’s failure to

institute forfeiture proceedings for the approximately

twenty months in which Chillicothe has possessed

their property is a violation of their due process rights

cognizable under § 1983. In United States v. Eight

Thousand Eight Hundred and Fifty Dollars ($8,850) in

U.S. Currency, the United States Supreme Court held

that a significant delay in bringing a forfeiture proceeding can rise to the level of a due process violation

under the Fifth Amendment. United States v. Eight

Thousand Eight Hundred and Fifty Dollars ($8,850)

in U.S. Currency, 461 U.S. 555, 564 (1983). The Fifth

Amendment Due Process Clause has been “incorporated into the Fourteenth,” Ingraham v. Wright, 430

U.S. 651, 672 (1977), and generally due process interests under the Fifth Amendment are likewise protected

under the Fourteenth. See, e.g., Arnett v. Kennedy, 416

U.S. 134, 154 (1974) (referring to cases interpreting

the Due Process Clause of the Fourteenth Amendment

as applicable to due process claims under the Fifth

Amendment); Southwestern Oil Co. v. State of Tex., 217

U.S. 114, 119 (1910) (noting that, by the Fourteenth

App. 77

Amendment, “the states became bound, as was the

United States by the 5th Amendment, not to deprive

any person of property without due process of law”);

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564,

572 n.11 (1972) (referencing the Supreme Court’s decision under the Fifth Amendment in Bolling v. Sharpe,

347 U.S. 497, 499 (1954), as informing due process required for deprivations of liberty under the Fourteenth

Amendment).

Defendants have argued that the Cremeans are

required to show that Ohio does not provide an adequate remedy for the alleged due process violation before bringing a claim under § 1983. (ECF No. 13). The

Cremeans have also addressed the inadequacy of state

remedies. While the Cremeans’ arguments could be

read as attempting to state a facial challenge to Ohio’s

statutory scheme governing forfeiture proceedings, the

Complaint requests only declaratory and injunctive relief specific to the Cremeans, and the Cremeans made

clear at the Preliminary Injunction hearing that their

theory of the case is unconstitutional delay, not unconstitutionality of the state statutory scheme. Thus, this

Court will construe Plaintiffs’ Motion as addressing inadequacy of state remedies before bringing a § 1983

claim.

Claims against a state for violation of due process

are governed by the Fourteenth Amendment. The

availability of state remedies is irrelevant for two categories of due process claims: (1) those claims alleging

violations of “specific protections defined in the Bill of

Rights,” such as unlawful search and seizure, and (2)

App. 78

claims for violations of substantive due process, that is

to say, “wrongful government actions ‘regardless of the

fairness of the procedures used to implement them.’ ”

Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting

Daniels v. Williams, 474 U.S. 327, 331 (1986)). But the

availability of state remedies does bear on procedural

due process claims. Zinermon, 494 U.S. at 125. A procedural due process claim does not allege that “the deprivation by state action of a constitutionally protected

interest in ‘life, liberty, or property’ is . . . itself unconstitutional; what is unconstitutional is the deprivation

of such an interest without due process of law.” Id. For

such a procedural due process claim, the harm “is not

complete unless and until the State fails to provide due

process.” Id. at 126.

Whether Plaintiffs are required to first show inadequacy of state post-deprivation remedies depends

upon whether the alleged violation of due process occurred under “established state procedures” or through

“a random or unauthorized act.” Mitchell v. Fankhauser,

375 F.3d 477, 483–84 (6th Cir. 2004). Under the rule of

Parratt v. Taylor, 451 U.S. 527 (1981), extended by

Hudson v. Palmer, 468 U.S. 517 (1984), “postdeprivation remedies do not satisfy due process where a

deprivation of property is caused by conduct pursuant

to established state procedure, rather than random

and unauthorized action.” Hudson, 468 U.S. at 532 (citing Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982)). The Parratt rule is premised on the logic “that

when deprivations of property are effected through

random and unauthorized conduct of a state employee,

App. 79

predeprivation procedures are simply ‘impracticable’

since the state cannot know when such deprivations

will occur.” Hudson, 468 U.S. at 533.

The Sixth Circuit has, until recently, followed “two

parallel but contradictory lines of authority” on when

plaintiffs must show inadequacy of state remedies before bringing a claim for a violation of due process.

Mitchell v. Fankhauser, 375 F.3d 477, 482 (6th Cir.

2004). But in Mitchell v. Fankhauser, the Sixth Circuit

clarified that the correct approach was that taken in

Watts v. Burkhart and similar cases. Mitchell v. Fankhauser, 375 F.3d 477, 484 (6th Cir. 2004). Watts held

that Parratt did not apply “when faced with a case

alleging a deprivation of property resulting from application of an established state process.” Watts v.

Burkhart, 854 F.2d 839, 843 (6th Cir. 1988) (citing

Spruytte v. Walters, 753 F.2d 498, 509–10 (6th Cir.

1985)).

The alleged due process violation here occurred as

a result of established state process. The Cremeans

have argued that Ohio does not provide an adequate

remedy because Ohio law does not provide a timeframe in which the state is required to bring a forfeiture action. Thus, the Chillicothe Police Department’s

and Ross County prosecutor’s actions were not random

or unauthorized, and Parratt does not apply. Rodgers v.

36th Dist. Court, 529 F. App’x 642, 650 (6th Cir. 2013)

(finding that plaintiffs were not required to show inadequacy of state remedies where the claims giving

rise to the alleged due process claim arose from conduct that defendants believed was justified under the

App. 80

parties’ CBA). The underlying logic of the Parratt

rule supports this conclusion. Parratt excuses predeprivation remedies where such “remedies are impossible.” Macene v. MJW, Inc., 951 F.2d 700, 706 (6th

Cir. 1991). Here, however, Ohio has the opportunity to

provide plaintiffs like the Cremeans with adequate

process—a forfeiture proceeding. Thus, the Cremeans

are not required to show inadequacy of state procedure

before bringing their § 1983 claim for violation of due

process.

One other threshold matter merits addressing: the

Chillicothe Defendants have argued that this Court is

without authority to question whether the indictment

includes language sufficient to request forfeiture because “[t]he sufficiency of this Indictment, in seeking a

forfeiture, is the sole province of the State Court,” (ECF

No. 22 at 1) and that the Federal Anti-Injunction Act,

28 U.S.C. § 2283, bars this Court from enjoining criminal forfeiture proceedings. (ECF No. 22 at 1–2).

The Federal Anti-Injunction Act does not bar

§ 1983 actions. The Federal Anti-Injunction Act prohibits federal courts from “grant[ing] an injunction to stay

proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid

of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. A request for injunctive relief

under § 1983 is an “expressly authorized” exception to

the Anti-Injunction Act. Mitchum v. Foster, 407 U.S.

225, 242–43 (1972).

App. 81

The mere presence of an indictment in state court

does not deprive this Court of authority to examine the

contents of an indictment for purposes of ruling on a

federal constitutional claim. Chillicothe cites no case

for the proposition that this Court cannot opine on the

sufficiency of the indictment’s forfeiture request, or

lack thereof. Whether the indictment seeks forfeiture

is relevant to the question of unconstitutional delay. A

state cannot prevent inquiry into the constitutionality

of its actions merely by alleging that a question involves interpretation of state law.

Although the state has now obtained a second indictment, the Chillicothe Defendants continue to assert that the first indictment contained a forfeiture

request. Not so. The first indictment charged Mr.

Cremeans under Ohio Revised Code § 2927.21 for “receiving proceeds of an offense subject to forfeiture proceedings” for trafficking in cocaine. The Ohio Revised

Code distinguishes between direct drug trafficking offenses and receiving proceeds of a drug trafficking

offense. Trafficking in cocaine is an offense under

§ 2925.03. Section 2927.21 makes it an offense to “receive, retain, possess, or dispose of proceeds knowing

or having reasonable cause to believe that the proceeds

were derived from the commission of an offense subject to forfeiture proceedings.” O.R.C. § 2927.21(B).

One such offense is an offense under § 2925.03. Section

2927.21 proceeds to delineate varying degrees of felony

charges based on the amount of money involved.

The first indictment did not request forfeiture. Because the state has not sought civil forfeiture through

App. 82

a separate civil complaint, only criminal forfeiture is

relevant. Section 2981.04 of the Ohio Revised Code

sets out the process for criminal forfeiture. Section

2981.04 “distinguishes between the underlying criminal offense and the forfeiture specification.” State v.

Harris, 132 Ohio St. 3d 318, 2012-Ohio-1908, 972

N.E.2d 509, at ¶ 26. Under § 2981.04, a request for forfeiture must contain the following information.

(a) The nature and extent of the alleged offender’s or delinquent child’s interest in the

property;

(b) A description of the property;

the property in the commission or facilitation

of the offense.

ORC § 2981.04(A)(1)(a-c). Section 2981.04 also requires

the forfeiture specification as set out in § 2941.1417.

Ohio appellate courts strictly adhere to the statutory requirements for requesting forfeiture. See, e.g,

State v. Cave, 4th Dist. Scioto No. 13CA3575, 2015Ohio-2233, at ¶ 40 (“Forfeitures are not favored in law

and equity, and forfeiture statutes must be interpreted

strictly against the [S]tate.”) (internal citations omitted). Where an indictment contains no forfeiture

specification, a trial court is without power to order forfeiture of the property. See, e.g., State v. Linville, 8th

Dist. Cuyahoga No. 104359, 2017 WL 123048, at ¶ 14

(reversing trial court’s grant of order ordering return

of a vehicle where indictment did not include forfeiture specification). The first indictment against Mr.

App. 83

Cremeans contained no forfeiture specification. The

only mention of forfeiture in the indictment is in reference to the name of the offense. Mere passing references to forfeiture do not meet Ohio’s statutory

requirements for criminal forfeiture. Here, until August 16, 2019 the state had not attempted to include

any forfeiture specification, let alone one that could arguably be called insufficient. After this court’s preliminary injunction hearing, the state brought an

indictment including a forfeiture specification. That

forfeiture specification includes a description of most

(but not all) of the cash proceeds that were taken from

the Cremeans, and none of the other items that were

seized. One Ohio Court of Appeals seriously doubted

the sufficiency of a forfeiture specification that included all relevant information except for “the nature

and extent of the alleged offender’s interest in the

property” and “the alleged use or intended use of the

property in the commission or facilitation of the offense,” even though that Court ultimately found the

plaintiff to have waived such objections. State v.

Schmidt, 3d Dist. Seneca No. 13-13-07, 2014-Ohio-758.

Nevertheless, Defendants have raised questions of

the appropriateness of federal action in a case where

state criminal charges are now pending. This raises

questions of abstention, an issue this Court may raise

sua sponte. See Bellotti v. Baird, 428 U.S. 132, 144 n.10

(1976); Hill v. Snyder, 878 F.3d 193, n.3 (6th Cir. 2017).

Although a state can waive Younger abstention, typically the state must affirmatively urge the court to

decide the constitutional question before a waiver

App. 84

results. See O’Neill v. Coughlan, 511 F.3d 638, 641–43

(6th Cir. 2008). Younger v. Harris counsels that “a federal court must decline to interfere with pending state

civil or criminal proceedings when important state interests are involved.” O’Neill v. Coughlan, 511 F.3d

638, 641 (6th Cir. 2008). The principles underlying

Younger v. Harris abstention apply even when state

criminal proceedings are instituted after a federal

case, as was done here. See Hicks v. Miranda, 422 U.S.

332, 349 (1975). But federal courts are not required to

abstain once they have undertaken “proceedings of

substance on the merits.” Id. A case “in which a preliminary injunction is granted has proceeded well beyond the ‘embryonic stage,’ and considerations of

economy, equity, and federalism counsel against

Younger abstention at that point.” Hawaii Housing

Auth. v. Midkiff, 467 U.S. 229, 238 (1984).

Younger abstention is applicable where three requirements are met: “(1) there must be on-going state

judicial proceedings; (2) those proceedings must implicate important state interests; and (3) there must be

an adequate opportunity in the state proceedings to

raise constitutional challenges.” O’Neill, 511 F.3d at

643 (quoting Sun Refining & Mktg. Co. v. Brennan, 921

F.2d 635, 639 (6th Cir. 1990)). Younger does not apply

“where the state proceeding is pursued with an intent

to harass, is conducted in bad faith, or where the challenged state statute or authority is flagrantly and patently unconstitutional.” Watts v. Burkhart, 854 F.2d

839, 844 (6th Cir. 1988) (citing Huffman v. Pursue, Ltd.,

420 U.S. 592, 603–13 (1975)).

App. 85

A case “in which a preliminary injunction is

granted has proceeded well beyond the ‘embryonic

stage,’ and considerations of economy, equity, and federalism counsel against Younger abstention at that

point.” Hawaii Housing Auth. v. Midkiff, 467 U.S. 229,

238 (1984) (citing Doran v. Salem Inn, Inc., 422 U.S.

922, 929 (1975)). Although some courts have found that

state criminal proceedings can be said to have commenced before an indictment, see Sovereign News Co.

v. Falke, 448 F.Supp. 306, 338 (N.D. Ohio 1977), the filing of an indictment is sufficient, if not necessary. At

the time this suit was filed, no state criminal proceedings were pending. The state issued an indictment

against James Cremeans just prior to the preliminary

injunction proceedings, but that indictment contained

no forfeiture specification. The most recent indictment

containing the forfeiture specification was not returned until after this Court concluded the Preliminary Injunction hearing.

The Ninth and Eleventh circuits have noted that

a “district court’s extended evidentiary hearing on the

question of a preliminary injunction constituted a

substantive proceeding on the merits.” Adultworld

Bookstore v. City of Fresno, 758 F.2d 1348, 1350–51 (9th

Cir. 1985); For Your Eyes Alone, Inc. v. City of Columbus,

Ga., 281 F.3d 1209, 1218 (11th Cir. 2002) (finding that

Younger abstention was inappropriate where briefing

had been submitted on motion to dismiss and district

court had held thorough evidentiary hearing regarding

plaintiffs’ motion for a temporary restraining order

prior to when the plaintiff was arrested); Nationwide

App. 86

Biweekly Admin., Inc. v. Owen, 873 F.3d 716, 729 (9th

Cir. 2017) (determining “significant expenditure of effort by the federal court counsels against abstaining”

where district court reviewed extensive briefing and

had engaged extensively with merits issues even

though it had not yet conducted a hearing or issued

a decision), cert. denied sub nom. Nationwide Biweekly Admin., Inc. v. Hubanks, 138 S. Ct. 1698 (2018).

Although this Court had not concluded the preliminary injunction proceedings at the time the state filed

its first indictment, the parties and the Court had already spent significant time and resources preparing

for the hearing. Additionally, the preliminary injunction hearing had taken place and this Court’s decision

was in process (and near completion) before the second

indictment containing the forfeiture specification was

filed. Therefore, this Court’s proceedings at the time

the second indictment was brought had progressed

well beyond “the embryonic stage” and considerations

of “economy, equity, and federalism” counsel against

the application of Younger abstention on this point. See

Hawaii Housing Auth. v. Midkiff, 467 at 238.

Younger also requires that the federal plaintiffs be

able to raise their constitutional challenge in the state

proceeding. Constitutional claims are not subject to abstention if they are “‘collateral’ to the state proceedings. . . . [and] could neither be proven as part of the

state case-in-chief nor raised as an affirmative defense.” Habich v. City of Deaborn, 331 F.3d 524, 532

(6th Cir. 2003). Plaintiffs have argued they have no adequate state remedy, but those arguments addressed

App. 87

the ability to challenge an ongoing retention of property. They did not address Ohio court’s receptivity to a

federal constitutional challenge. Additionally, while it

is likely that James Cremeans could raise a constitutional challenge to the most recent indictment, he

could not have challenged the first indictment in the

criminal proceeding as it did not contain a forfeiture

specification.2 State v. Golston, 66 Ohio App. 3d 423,

430 (1990) (noting that during pendency of criminal

case, Golston was unable to challenge the state’s seizure of his goods because no forfeiture count had been

brought in case where forfeiture proceedings were not

institute until 18 months after seizure and after defendant). Accordingly, the Cremeans could not have

brought this constitutional challenge in the state court

proceeding, because at the time of the preliminary injunction hearing, no forfeiture specification had been

brought.

Because this Court has conducted a preliminary

injunction hearing on Plaintiff ’s constitutional due

process claims and because the Plaintiffs could not

have raised these claims in state court at the time of

It should be noted that in a criminal proceeding, James

Cremeans could only bring a constitutional challenge to the seizure of the cash ($30,855.82) listed in the second indictment.

(ECF No. 27-1 at 2). This is because the second indictment is also

insufficient and fails to list the remainder of the property (lease

agreements, rare coin collection, financial documents, vehicle titles, electronics, etc) and the full amount of cash ($33,715) that

was taken from the Cremeans’ home. (ECF No. 1 at 3). Thus, it is

also likely that any challenge brought in the state criminal proceedings would not adequately address the extent of the constitutional violation. State v. Golston, 66 Ohio App. 3d 423, 430 (1990).

App. 88

the evidentiary hearing, this Court finds that it is not

required to abstain from hearing the Cremeans’ claim

pursuant to Younger v. Harris.

This Court now proceeds to the merits of the due

process claim. Claims for unconstitutional delay in

bringing a forfeiture proceeding are governed by the

Barker v. Wingo balancing test. $8,850 in U.S. Currency, 461 U.S. at 564. Under Barker v. Wingo, if the

plaintiff can show “some delay which is presumptively

prejudicial,” Barker, 407 U.S. 514, 530 (1972), then the

court engages in balancing three factors: “the reason

for the delay, the claimant’s assertion of his right, and

the prejudice to the claimant.” Ninety Three Firearms,

330 F.3d 414, 424–25 (6th Cir. 2003) (citing Barker, 407

U.S. at 530). None of the “factors is a necessary or sufficient condition for finding an unreasonable delay.”

$8,850 in U.S. Currency, 461 U.S. at 565. The Barker

factors are intended to guide courts in evaluating

“whether the basic due process requirement of fairness

has been satisfied in a particular case.” Id.

The Supreme Court has remarked that “the lower

courts have generally found postaccusation delay ‘presumptively prejudicial’ at least as it approaches one

year.” Doggett v. United States, 505 U.S. 647, 652 n.1

(1992). The Supreme Court has found a delay of eighteen months to be “quite significant.” $8,850 in U.S.

Currency, 461 U.S. at 566.

The length of the delay here is twenty months.

The property was seized in January 2018, and the

grand jury returned an indictment with a forfeiture

App. 89

specification in August 2019. A delay of twenty months

is substantial and presumptively prejudicial. This

Court will proceed to balance the remaining three

Barker factors.

a. Barker Factor 1: Reason for the Delay

Next, the court examines the reason for the delay. Barker, 407 U.S. at 531. A deliberate delay, such

as a delay calculated “to hamper the defense should

be weighted heavily against the government.” Id.

Justifications “such as negligence or overcrowded

courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the

government rather than with the defendant.” Id. And,

“a valid reason, such as a missing witness, should serve

to justify appropriate delay.” Id.

The necessary time it takes to complete an investigation is a proper consideration in explaining a delay

in instituting forfeiture proceedings. As the Supreme

Court noted in examining a delay in forfeiture proceedings, the “investigation required responses to

inquiries to state, federal and Canadian law enforcement officers. Such an investigation inherently is timeconsuming, and there is no indication that it was not

pursued with diligence.” $8,850 in U.S. Currency, 461

U.S. at 567–68. Plaintiffs rely on May v. United States,

519 F. Supp. 649 (S.D. Ohio 1981), for the proposition

that once a search warrant has issued, the government

requires less time to bring a forfeiture action because

App. 90

some of the investigation must already have been

completed to support issuance of a warrant. Although

May was decided before $8,8850 in U.S. Currency, May

examined factors similar to the Barker factors. May

stated that “the probable cause necessary to validate

the search and seizure of the property, generally, is sufficient probable cause to legitimize the filing of the forfeiture action.” Id. at 653.

The Chillicothe Police Department acted diligently in investigating the case. From January 10,

2018, when the search warrant was executed and the

property seized, to June 2018, Officer Taczak was issuing subpoenas and waiting for responses. From June to

September, the Chillicothe Police Department was

compiling the case. This is a reasonable amount of time

to expect law enforcement to compile the results of

their investigation.

But from November 9, 2018, when Officer Taczak

submitted the case to the prosecutor, the Chillicothe

Defendants have offered no explanation for the delay

in bringing the indictment, other than being overworked and understaffed. Chillicothe is overwhelmed

with the opioid crisis and has only three detectives

working narcotics, two of which “are cross-assigned to

joint task forces, assisting in federal investigations.”

(ECF No. 13 at 5). The Chillicothe Defendants assert

that the Prosecutor’s office has a backlog of 300 cases.

(Id. at 6). The Chillicothe Defendants argue that forfeiture is included in the indictment, but the first indictment contained no forfeiture specification, and this

deficiency was not remedied until August 16, 2019. The

App. 91

Chillicothe Defendants have attempted no explanation

for the omission of a forfeiture count in the first indictment or for the additional delay before the second indictment. Thus, it appears that the Defendant’s failure

to bring a forfeiture specification in a timely manner is

due to negligence.

Even were this Court to assign the justification

of prosecutorial overload to the delay in forfeiture,

such justification does not assist Defendants. Indeed,

some courts have held more recently in applications

of Barker in the context of delay on appeal that “lack

of funding and, possibly, the mismanagement of resources by the Public Defender” cannot be “an acceptable excuse for delay.” Harris v. Champion, 15 F.3d 1538,

1562 (10th Cir. 1994) (collecting cases). This Barker

factor argues in favor of Plaintiffs.

b. Barker Factor 2: Claimant’s Assertion of Rights

The second factor is the claimant’s assertion of his

rights. The Cremeans assert that they contacted the

Chillicothe Law Director four times: once on June 30,

2018 (by letter), again on October 25, 2018, a third time

on November 5, 2018, and a fourth time after the Ross

County case was closed. (ECF No. 2 at 12). In addition

to these informal requests, Plaintiffs filed a state court

action for replevin. Plaintiffs did have one remedy of

which they did not avail themselves. Ohio Revised

Code § 2981.03(A)(4) allows an individual contesting

the legality of a seizure to file a motion requesting return of the property. The hearing must then be held

App. 92

within twenty-one days. Ohio Revised Code § 2981.03(D)

separately provides a process to request “conditional

release” of forfeitable property.

Although the Cremeans did not avail themselves

of all possible avenues to seek return of their property,

their actions are nevertheless sufficient to show they

adequately asserted their rights to the property. See,

e.g., $8,850 in U.S. Currency, 461 U.S. at 569 (finding

that plaintiff did not assert his rights where he did not

attempt to file an equitable action, request the Customs Service to refer the matter to the U.S. Attorney,

or ask for return of the property under Federal Rule of

Criminal Procedure 41(e), and “only occasionally”

asked about the status of his petition for remission);

United States v. $75,900 in U.S. Currency, Nos. 866063, 86-6064, 1987 WL 24747, at *3 (6th Cir. Dec. 14,

1987) (finding “motions for return of the seized property” adequate assertion of rights). This Barker factor

also is resolved in favor of Plaintiffs.

c. Barker Factor 3: Prejudice from the Delay

Finally, the Cremeans must show prejudice from

the delay. The prejudice requirement is narrow—“the

primary inquiry . . . is whether the delay has hampered the claimant in presenting a defense on the merits, through, for example, the loss of witnesses or other

important evidence.” $8,850 in U.S. Currency, 461 U.S.

at 569. The Cremeans’ primary focus has been the burden of being without their assets. But the burden of

being without assets does not address the relevant

App. 93

prejudice inquiry—the ability to defend themselves on

the merits of a forfeiture proceeding. Plaintiffs have

also argued that the delay “has allowed evidence to go

stale and memories to fade” and that there is an “increasing risk that important documents exonerating

the Plaintiffs of any wrongdoing will be lost or misplaced over the years.” (ECF No. 2 at 13). Plaintiffs

have offered no evidence as to how the state’s delay has

prejudiced them in defending a forfeiture proceeding.

However, as determined above, Defendant’s failure to

bring a forfeiture specification in a timely manner was

due to negligence. Where, “the government’s negligence caused the delay, the need to prove prejudice [to

a claimant] diminishes as the delay increases” since

“excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove

or, for that matter, identify.” United States v. Brown,

169 F.3d 344, 350–51 (6th Cir. 1999) (internal citations

omitted). Accordingly, this factor weighs in favor of

Plaintiffs.

d. Balancing

The plaintiffs bear the burden of showing a strong

likelihood of success on the merits. The Cremeans have

met that burden. The Court weighs the Barker factors

in determining whether there was a due process violation.

The delay in this case is substantial—it has been

twenty months since officers seized the Cremeans’

property. Although longer delays have been justified

App. 94

in prior cases under Barker, those delays have often

been due to factors not present here—pending administrative and criminal proceedings, the claimant’s own

contributions to the delay, or because of the claimant’s

failure to timely demand return of the property. See

United States v. Coffman, 612 F. App’x 278, 290 (6th

Cir. 2015) (delay of four and a half years from time of

seizure to hearing on the merits justified where government brought forfeiture proceedings one month after jury verdict was rendered in underlying criminal

proceedings and where remainder of delay was due

to “judicial process at work”); United States v. Ninety

Three Firearms, 330 F.3d 414, 425 (6th Cir. 2003) (finding a five year delay justified due in part to a pending

criminal proceeding and in part due to claimant’s

failure to pursue “myriad options” available to him to

regain his property); United States v. Six Negotiable

Checks in Various Denominations Totaling One Hundred Ninety One Thousand Six Hundred Seventy

One Dollars & Sixty Nine Cents ($191,671.69), 207

F. Supp. 2d 677, 690 (E.D. Mich. 2002) (29 month delay

justified where claimant did not timely bring claim or

identify any prejudice in ability to litigate claims in action and where much of delay was due to pending administration petition for remission).

Additionally, while the Cremeans have made only

vague assertions as to how they are prejudiced by the

delay, the Government’s negligence in bringing the forfeiture claim in a timely manner lessens the Cremean’s

burden of producing evidence demonstrating that prejudice. As the Sixth Circuit has noted in the context of

App. 95

a speedy trial violation, the very context in which the

Barker v. Wingo test originates, “negligence [is not] automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him.”

United States v. Brown, 169 F.3d 344, 351 (6th Cir.

1999).

Further, this Court and others have previously ordered the return of goods where the forfeiture proceedings were brought in a dilatory manner. See May, 519

F.Supp. 649 (ordering return after one year and three

day delay); Ford Motor Credit Co. v. New York City Police Dep’t, 394 F. Supp. 2d 600, 614 (S.D.N.Y. 2005),

aff ’d sub nom. Ford Motor Credit Co. v. NYC Police

Dep’t, 503 F.3d 186 (2d Cir. 2007) (finding that city’s

delay in bringing forfeiture action violated Due Process Clause); United States v. $23, 407.69 in U.S. Currency, 715 F.2d 162, 165 (5th Cir. 1983) (affirming

dismissal of forfeiture action for thirteen month delay,

six months of which were unexplained). Thus, on balance, the Cremeans have shown a likelihood of success

on the merits.

B. Irreparability of Harm, Substantial

Harm to Others, and Public Interest

Harm is irreparable if it “is not fully compensable by money damages.” Basicomputer Corp. v. Scott,

973 F.2d 507, 511 (6th Cir. 1992). A violation of a constitutional right is sufficient to show irreparable

harm. See, e.g., Doe v. The Ohio State University, 136

F. Supp.3d 854, 871 (S.D. Ohio 2016) (Graham, J);

App. 96

Planned Parenthood Southwest Ohio Region v. Hodges,

138 F.Supp.3d 948, 960 (S.D. Ohio 2015) (“[W]hen a

constitutional right is being threatened or impaired, a

finding of irreparable harm is mandated.”). Because

the Cremeans have shown a likelihood of success on

the merits, they can rely on the due process violation

to show irreparable harm. Further, the public has an

interest in ensuring constitutional rights are vindicated, G&V Lounge, Inc. v. Michigan Liquor Control

Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).

This Court is at a loss to comprehend the state’s

failure to file in a timely manner civil forfeiture or request forfeiture in the first indictment. Due process

requires a meaningful hearing within a meaningful

time. This Court finds that a balancing of the preliminary injunction factors counsels for the issuance of a

preliminary injunction.

IV.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is hereby GRANTED.

Plaintiffs’ Motion to Reopen the Preliminary Injunction Hearing (ECF No. 21) is DENIED. Defendants’ Motion to Supplement Record (ECF No. 27) is GRANTED.

App. 97

IT IS SO ORDERED.

/s/ Algenon L. Marbley

ALGENON L. MARBLEY

CHIEF UNITED STATES

DISTRICT JUDGE

DATED: October 23, 2019

App. 98

No. 22-3730

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NICOLETTE CREMEANS;

JAMES CREMEANS,

Plaintiffs-Appellees,

SAMANTHA TACZAK; CITY

OF CHILLICOTHE, OH;

KEITH WASHBURN,

Chief of Police,

Defendants-Appellants.

)

ORDER

)

) (Filed Sep. 26, 2023)

)

BEFORE: GRIFFIN, KETHLEDGE, and THAPAR,

Circuit Judges.

The court received a petition for rehearing en

banc. The original panel has reviewed the petition

for rehearing and concludes that the issues raised

in the petition were fully considered upon the original submission and decision of the case. The petition

then was circulated to the full court. No judge has

requested a vote on the suggestion for rehearing en

banc.

App. 99

Therefore, the petition is denied.

ENTERED BY ORDER

OF THE COURT

/s/ Deborah S. Hunt

Deborah S. Hunt, Clerk

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