Appendix — Bowling v. Carpenter (No. 08-566)

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APPENDIX A

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

[Filed May 2, 2008]

No. 07-3100

LADAWNYA K. CARPENTER et al.,

Plaintiffs-Appellees,

LESLIE WAYNE BOWLING et al.,

}

)

Defendants-Appellants. )

)

ON APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF OHIO

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Before: BATCHELDER and SUTTON, Circuit

Judges; and BARZILAY, Judge.”

SUTTON, Circuit Judge. Three City of Franklin

(Ohio) police officers argue that the district court erred

in denying their motion for summary judgment with

respect to Charles Combs’ unlawful-arrest and

unlawful-entry claims and Ladawnya Carpenter’s

excessive-force claim. We affirm.

In July 2002, an Ohio court entered a consent

agreement between Sarah Kirby and Charles Combs

concerning the custody of their ten-month-old son,

Tyler. The agreement gave Combs custody of Tyler

from Sunday at 6:00 p.m. to Friday at 6:00 p.m., and it

gave Kirby custody from Friday at 6:00 p.m. to Sunday

at 6:00 p.m. All exchanges of Tyler, the agreement

said, would “take place at [the] Franklin police

department.” JA 58.

On at least two occasions, Combs failed to bring

Tyler to the police department on Friday evening,

prompting Kirby to file a motion to hold Combs in

contempt of court ‘or violating the consent agreement.

On August 16, whien Combs again failed to bring Tyler

to the station, Kirby told the police that she “had filed

for contempt of court” against Combs, that Combs “was

supposed to bring Tyler to the station” and “that there

* The Honorable Judith M. Barzilay, Judge of the United States

Court of International Trade, sitting by designation.

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was a warrant for [Combs].” JA 201. The officers

responded by going to Combs’ apartment.

Combs answered the officers’ knock on his door,

and, after a brief discussion, the officers arrested him

for violating the consent agreement. The arrest,

according to all parties, occurred outside Combs’

apartment. LaDawnya Carpenter, Combs’ sister, who

(along with Combs’ mother and girlfriend) was visiting

Combs at the time, told the officers that she had

temporary custody papers at her house that would

exonerate her brother. The officers told Carpenter to

get the papers.

When Carpenter returned without the custody

papers, she called Combs’ attorney to determine

whether the officers cou'd arrest him without a ;

warrant. After Carpenter handed him the phone, .

Officer Russell Whitman spoke to Combs’ attorney,

who informed him that the consent agreement had not.

been modified. Whitman also spoke with a

representative of the Warren County Children’s

Services, who told him that Kirby “had the right to

take the child.” JA 79. Whitman then took Tyler from

Carpenter, carried him out of the apartment and gave

him to Kirby, who was waiting in the parking lot.

According to at least one of the officers, Carpenter

“was screaming profanities” and “throwing objects

about in the apartment” as “the officers were leaving

the apartment with the child.” JA 62. Carpenter

| denies these allegations. JA 125. Carpenter followed

| the officers into the parking lot and ultimately was

arrested for disorderly conduct, a charge later

dismissed, as was the charge against Combs.

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In August 2003, Combs, Tyler and Carpenter filed

a § 1983 action against the City of Franklin, Kirby and

Officers Bowling, Whitman and Diekman in Ohio state

court. The defendants removed the action to federal

court, and the officers moved for summary judgment

on qualified immunity grounds. The district court

granted the motion with respect to the unlawful-arrest

claim, holding that the officers had probable cause to

arrest Combs. It denied the motion with respect to the

unlawful-entry claim, reasoning in part that exigent

circumstances did not justify the entry. And it denied

the motion with respect to the excessive-force claim,

reasoning that disputes of material fact remained over

Carpenter’s conduct and the officers’ explanations for

using force. Officers Bowling, Whitman and Diekman

filed this interlocutory appeal. See Mitchell v. Forsyin,

472 U.S. 511, 530 (1985).

II.

To overcome a defendant’s claim of qualified

immunity, a plaintiff must establish (1) that the

defendant violated a “constitutional right” and (2) that

the right “was clearly established.” Saucier v. Katz,

533 U.S. 194, 201 (2001). We must decide the first

question, the Supreme Court has instructed, before we

reach the second one. Jd. at 200-01.

The officers start, oddly enough, by arguing that

“it|he trial court erred by not granting the officers

qualified immunity for the warrantless arrest claim of

Charles Combs.” Br. at 1. That is odd because, as we

have just explained, the district court granted

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summary judgment for the officers on this claim. Since

the officers cannot appeal a victory and since Combs

has not appealed this loss, that is the end of the

matter.

The officers next challenge the district court’s

conclusion that a triable issue of fact exists over

Combs’ unlawful-entry claim. We reject that challenge.

While the officers say that Combs consented to their

waiting in his apartment after his arrest and while

consent is an acceptable basis for entering a person’s

home without a warrant, see Illinois v. Rodriguez, 497

U.S. 177, 181 (1990), the summary-judgment record

establishes a dispute over whether the officers indeed

had consent to enter the home. Carpenter’s and

Combs’ affidavits, for example, both say that the

officers “forced their way into the apartment.” JA 165,

184. Even though it remains unclear what cognizable

harm Combs suffered as a result of the officers’

entry—as he did not appeal the district court’s

conclusions that his arrest and the seizure of Tyler

were lawful and as the entry seemingly benefitted him

by allowing his sister time to contest his arrest—we

affirm the district court’s denial of the officers’ claim

for summary judgment on Combs’ unlawful-entry

claim.

The officers next contest the district court’s

excessive force ruling, arguing that the court should

have rejected Carpenter's claim as a matter of law.

Under the Fourth (and Fourteenth) Amendment,

individuals have a right to be free of excessive force

when police arrest or seize them. See Lyons v. City of

Xenia, 417 F.3d 565, 575 (6th Cir. 2005). Whether

excessive force exists turns .on the objective

reasonableness of the officer’s conduct in view of the

circumstances facing the officer, an inquiry that

accounts for “[1] the severity of the crime at issue, [2]

whether the suspect poses an immediate threat to the

safety of the officers or others, and [3] whether [the

suspect] is actively resisting arrest or attempting to

evade arrest by flight.” Jd. (internal quotation marks

omitted and alterations in original); see also Graham

v. Connor, 490 U.S. 386, 394—96 (1989).

When we construe the facts in Carpenter’s favor, as

we must, here is what happened: After the officers

removed Tyler from the apartment and gave him to

Kirby, Carpenter waited a moment, then went outside.

Upon emerging from the building, Carpenter saw

Kirby 30 to 40 feet away and shouted, “remember,

Sunday at 6:00,” reminding Kirby of her obligation to

return Tyler to Combs on Sunday evening. JA 126.

Carpenter insists she never cursed at Kirby and

“wasn’t threatening [her].” JA 128.

“Before [Carpenter] could even get [her] breath

back [from shouting at Kirby], Officer Bowling had

ahold of [her], screaming that he had had it with [her

and| was sick of [her].” Jd. After grabbing Carpenter

from behind by both arms, Bowling—“proceeded to

shove [her] down the sidewalk,” JA 129, and “body

slammed [her] into a van parked in front of the

apartments,” JA 181. All the while, Carpenter was

telling Bowling that he did not “have to do this”

because she would voluntarily “turn around and let

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{him] arrest [her].” JA 129. After pinning Carpenter

against the van, Bowling “jerk[ed] hard on [her] arms,”

JA 132, and Officer Diekman “stuck his knee in

{Carpenter’s] back” and “grabbed [Carpenter’s] other

shoulder,” JA 131. The officers then “repeatedly

crushed [Carpenter] against the van while pulling

back on both [of her] arms,” making “a dent in the

van.” JA 186. “[N]jot sure what [the officers were]

doing”—trying to handcuff her or _ injure

her—Carpenter told them that “they were hurting

{her]” and “continuously sal[id] please don’t do this. I

will stand up. I will let you handcuff me. I will let you

arrest me. You don’t have to do this to me.” JA

131-32. Carpenter thus “wasn’t fighting [the officers]”

and “wasn’t resisting arrest,” though she admits that

she lifted her head several times to plead for mercy. JA

132. Carpenter felt her “shoulder pop|[]” while the

officers jerked her arms, JA 131, and suffered injuries

to her arms and shoulders during the arrest, requiring

an emergency-room visit on the day after the arrest

and periodic medical treatment and physical therapy

since then.

As measured by the three fa ‘ors identified in

Lyons and Graham, these record-supported allegations

create a triable issue of fact over whether the officers

used excessive force. First, the charge at issue was

disorderly conduct, and “|tj/he crime of disorderly

conduct” generally “is not a violent or serious crime,

and this fact weighs in favor of using less force in

arresting [someone for such conduct}.” Thacker v.

Lawrence County, 182 F. App’x 464, 472 (6th Cir. May

17, 2006). Second, nothing suggests that Carpenter

posed a threat to the officers, and although Carpenter

raised her voice at Kirby (who was 30 or 40 feet away)

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she “wasn’t threatening her,” never cursed at her, was

“not angry” with her and never made a move toward

Kirby. JA 126, 128. Third, nothing suggests that

Carpenter posed a risk of flight. “At all times,”

Carpenter “told Bowling that [she] was not going to

resist him,” and yet he still “was hurting {her].” JA

186. In view of the non-threatening nature of

Carpenter’s offense, the absence of any resistance by

Carpenter and the absence of any threat to anyone, a

jury crediting these fact-supported allegations could

find that the officers used constitutionally excessive

force.

The district court also correctly determined that

case law clearly established this constitutional claim.

See St. John v. Hichey, 411 F.3d 762, 772, 774 (6th Cir.

2005)(“[W]Je conclude the right of a nonviolent [and

non-resistant] arrestee to be free from unnecessary

pain knowingly inflicted during an arrest [for

disorderly conduct] was clearly established as of

November 9, 2000.”); see also Minchella v. Bauman, 72

F. App’x 405, 408—09 (6th Cir. Aug. 13, 2003) (denying

summary judgment to officers on an excessive-force

claim—relating to an arrest in 1999-—-because the

plaintiffs “crime was not severe,” the plaintiff “posed

no threat to the Officers or the community” and the

evidence was “inconclusive as to whether [the plaintiff]

was ‘slammed’ into the car, and... . as to whether [the

plaintiff] physically resisted the arrest”); Davis v.

Yovella, No. 95-5415, 1997 WL 159363, at *5-—6 (6th

Cir. Apr. 2, 1997) (denying qualified immunity to an

officer on an excessive-force claim because “the charges

against |the plaintiff) . . .were not serious,” “there

[was] no evidence that [the plaintiff] posed a risk to

the officers or anyone present,” “the record show[ed]

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that he did not resist arrest” and the plaintiff “sought

medical attention for pain in his neck and back”).

The officers complain that this conclusion fails to

appreciate the risk of escalation they faced—as

Carpenter was visibly upset about the situation with

her brother, ha.: oiced her frustrations to the officers

and had previously been accused of harassing Kirby

(several months earlier). Yet virtually any arrest of an

individual by the police poses a risk of resistance and

escalation. The question is whether that risk was real

at the time the officers used force and, more

pertinently, whether a triable issue of fact exists over

that risk. Carpenter was 30 or 40 feet from Kirby and

claims not to have done anything more than remind

Kirby to return Tyler on Sunday. A jury could thus

reasonably conclude, if it credited these factual

allegations, that the police had no basis for

immediately grabbing, shov.ng, body slamming and

repeatedly crushing Carpenter against a van to

prevent the situation from escalating. Even if we were

to grant. the officers’ premise that they had a

reasonable basis for fearing that the situation might

escalate, moreover, that would not necessarily justify

repeatedly crushing Carpenter against a van while

jerking back hard on her arms—all in the context of

arresting her for a_ relatively minor and

non-threatening crime, one for which she “[alt all

times” did not resist the officers (save for raising her

head to ask them to stop).

The officers also contend that the district court

should have ruled for them as a matter of law because

Carpenter's injuries were either de minimis

(temporary scrapes and red marks) or pre-existing (her

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alleged shoulder injuries). But the record does not

unequivocally establish either point. Carpenter went

to the emergency room on the day after her arrest,

complaining of shoulder pain and bruising, and she

has “actively receiv[ed] medical treatment for the

injuries caused by the Franklin police officers.” JA

186. While Carpenter previously had surgery on her

left shoulder, that shoulder was “back to normal” by

1995 or 1996, well before her arrest. JA 107.

The officers add that Sergeant Whitman played no

role in the arrest and indeed that Carpenter did not

even allege that he participated in Carpenter’s arrest.

Both contentions fail to account for Whitman’s

affidavit, in which he admitted that he “assisted

Officer Bowling [in] handcuffling] Carpenter” and in

which he “denlied] Plaintiffs’ allegations that [he]

pushed or slammed Carpenter into a van.” JA80. The

second amended complaint, as well as other evidence

in the record, shows that Carpenter did implicate

Whitman in her claim. See JA 14 (alleging that

“Bowling, Whitman jand] Diekman” arrested

Carpenter “with unreasonable and excessive force”)

(emphasis added); JA 186 (Carpenter’s affidavit

indicating that “Officer Bowling and the two other

Franklin Police officers forcibly pushed |her] into the

side of a van parked in the parking lot and made a

dent in the van with [her] body”) (emphasis added).

The resolution of Carpenter’s excessive-force claim

in the end turns on several genuine issues of material

fact, including at a minimum these: Was Carpenter

walking toward, cursing at or otherwise threatening

Kirby at the time of her arrest? Did the officers

repeatedly body slam or crush Carpenter against the

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van and jerk back unreasonably hard on her arms?

And did Carpenter resist the arrest or the officers’

attempt to handcuffher? “[W]hen the legal question of

immunity is completely dependent upon which view of

the facts is accepted by the jury, the jury becomes the

final arbiter of a claim of immunity.” Bouggess uv.

Mattingly, 482 F.3d 886, 888 (6th Cir. 2007) (internal

quotation marks and alteration omitted).

Ill.

For these reasons, we affirm.

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APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

[Filed January 10, 2007]

Case No. 1:05-cv-323

LADAWNYA K. CARPENTER, et al.,

Plaintiffs,

CITY OF FRANKLIN, OHIO, et al.,

Defendants.

)

vs. )

)

U.S. Mzegistrate Judge Timothy S. Black

SUPPLEMENTAL MEMORANDUM

OPINION AND ORDER

On December 22, 2006, this Court entered a

Memorandum Opinion and Order granting in part and

denying in part Defendants’ motion for summary F

judgment. (Doc. 28). (The underlying facts are set out

in detail in that Opinion and will not be repeated

here.) 3

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Defendants included in their motion for summary

judgment an assertion that the defendant police

officers are entitled to qualified immunity with respect

to Plaintiff Ladawnya Carpenters claim that the

officers used excessive force in effecting her arrest on

a charge of disorderly conduct. The purpose of this

Supplemental Memorandurn Opinion and Order is to

address that assertion. For the reasons that follow,

the Court finds that Defendants are not entitled to

entry of summary judgment upon qualified immunity

with respect to that claim as material questions of fact

exist as to whether or not the police officers violated

clearly established law and whether or not they are

entitled to qualified immunity.

DISCUSSION

“Qualified immunity is an affirmative defense that

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.” Estate

of Carter v. City of Detroit, 408 F.3d 305, 310 (6th Cir.

2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)).

To determine whether the officers are entitled to

qualified immunity, the court must determine first,

“whether, considering the allegations in a light most

favorable to the party injured, a constitutional right

has been violated,” and second “whether that right was

clearly established.” /d. The court may also consider

“whether the plaintiff offered sufficient evidence to

indicate that what the official{s] allegedly did was

objectively unreasonable in light of the clearly

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established constitutional rights.” Champion uv.

Outlook Nashville, Inc., 380 F.3d 893, 905 (6th Cir.

2004), cert. denied sub. nom. Dickhaus v. Outlook

Nashville, Inc., 544 U.S. 975 (2005).

This Court previously expressed that the offense for

which Carpenter was arrested, disorderly conduct, is

not a heinously serious crime (Doc. 28 at p. 27 (citing

Thacker v. Lawrence County, 182 Fed. Appx. 464, 472

(6th Cir. 2006)), and that genuine issues of material

fact exist as to whether or not Carpenter posed a

threat to the safety of the officers or others, whether or

when she was told that she was under arrest, and

whether or not she resisted the officers’ attempt to

restrain her or to handcuff her (id. at pp. 27-28).

Because the facts are in dispute, and construing the

allegations in a light favorable to Carpenter, the Court

finds that she has alleged sufficient facts,' if proven, to

establish a _ constitutional violation under the

circumstances presented in this case.

In the motion for summary judgment, Defendants

further argue that the officers are entitled to qualified

immunity because the law surrounding the use of force

was not clearly established at the time of the

underlying arrest and in light of the particular facts of

the case. (See Doc. 10 at p. 35.) This argument is not

persuasive.

' See Carpenter's Affidavit (Doc. 13-3, p. 9, 94 13-19:); see also

Affidavit of Mary Zolecki (Doc. 13-3, pp. 4-5)

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It was clearly established at the time of Carpenter’s

arrest — August 16, 2002 — that it would be

unreasonable to use the amount of force alleged here

against a suspect who allegedly poses no apparent

threat and allegedly is not resisting the officer’s

attempt to arrest her. See, e.g., Baker v. City of

Hamilton, ___ F.3d ___, 2006 WL 3702914, at *6 (6th

Cir. Dec. 18, 2006) (noting that the right of people who

pose no safety risk to the police to be free from

gratuitous violence during arrest was clearly

established in December 2002); see also Lustig v.

Mondeau, No. 05-1905, 2006 WL 3253496, at *7 (6th

Cir. Nov. 8, 2006)).

Accordingly, and for the reasons stated above, IT

IS HEREIN ORDERED THAT Defendants’ motion

for summary judgment (Doc. 10) is DENIED in part

with respect to Defendants’ assertion that they are

entitled to qualified immunity on Carpenter’s

excessive force claim. The pretrial record sets forth

genuine issues of material facts for trial.

IT IS SO ORDERED.

Date: _1/10/07 s/Timothy S. Black

Timothy 8S. Black

United States Magistrate Judge

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APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

[Filed December 22, 2006]

Case No. 1:05-cv-323

LADAWNYA K. CARPENTER, et al., )

)

Plaintiffs, )

)

vs. )

)

CITY OF FRANKLIN, OHIO, etail., )

)

Defendants. )

)

U.S. Magistrate Judge Timothy S. Black

MEMORANDUM OPINION AND ORDER

This is a civil rights action brought pursuant to 42

U.S.C. § 1983. The case is before the Court on

defendants’ motion for judgment on the pleadings

(Doc. 8), defendants’ motion for summary judgment

(Doc. 10), and plaintiffs’ second motion to remand

(Doc. 14). Also pending is a motion by defendants for

leave to supplement their motion for summary

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judgment with an expert opinion. (Doc. 25.) The

parties have consented to final disposition by the

magistrate judge pursuant to 28 U.S.C. § 636(c). (See

Docs. 19, 23).

For the reasons that follow, the motion for

judgment on the pleadings is GRANTED; the motion

for summary judgment is GRANTED IN PART and

DENIED IN PART; and the second motion for

remand is DENIED. The motion for leave to

supplement is also DENIED.

I. BACKGROUND

A. The Parties

Plaintiffs LaDawnya K. Carpenter (“Carpenter”),

Charles N. Combs (“Combs”), and Tyler Combs

(“Tyler”) (collectively “plaintiffs”) are residents of the

City of Franklin, Ohio. (Doc. 1, Att. 1 at p. 4, 9 6.)

Tyler, a minor child, is Combs’s son. (/d. at p. 4, { 7.)

Carpenter is Combs’s sister. (/d. at p. 8, 4 34.)

Named defendants include the City of Franklin,

Ohio, four members of the Franklin Police

Department, Lt. Leslie W. Bowling, Sgt. Russell

Whitman, Officer Diekman, and Officer Troy Wolf; and

a Prosecutor for the City of Franklin, Steven Runge.

(Id. at p. 4, 9 5.) Sarah Kirby (“Kirby”), who is Tyler’s

mother (and Combs’s ex-girlfriend), was also named as

a defendant in the original complaint. (See Doc. 8, Ex.

A atp. 6, 7 2.)

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B. Factual Allegations

In July 2002, Kirby had filed a civil action in the

Warren County Court of Common Pleas against Combs

for entry of a domestic violence protection order. (Id. at

p.6,% 3.) As a result of a hearing held on July 8, 2002,

which Combs and Kirby both attended, the state court

entered an Order of Protection, which both Kirby and

Combs signed, which provided, among other things, for

the temporary custody of Tyler to be with Combs

during the weekdays from Sunday at 6:00 p.m. to

Friday at 6:00 p.m.; and the temporary custody of

Tyler to be with Kirby on the weekends from Friday at

6:00 p.m. to Saturday at 6:00 p.m. (Doc. 8 at p. 4.) The

domestic violence protective order entered by the state

court also provided that “allexchanges to take place at

Franklin Police department.” (/d.)

On the evening of Friday, August 16, 2002, after

Combs had failed to bring Tyler to the police station

for the 6:00 p.m. transfer to Kirby, officers Wolf,

Bowling, Whitman and Diekman appeared with Kirby

at Combs’s home. The officers allegedly entered the

home without a search warrant or an arrest warrant

in their possession and arrested Combs for violating

the protective order and seized Tyler and transferred

him into Kirby’s physical custody. (Doc. 1, Att. 1 at p.

5, 4 10; Doc. 8, Ex. A at pp. 3-4, J 4.)

Carpenter was present at Combs’s home on August

16, 2002. (Doc. 1, Att. 1 at p. 8, ¥ 34.) Although

Carpenter objected to the intended transfer of Tyler to

Kirby, she was trying to dress him when one of the

officers took Tyler from Carpenter, carried him

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outside, and delivered him to Kirby, who then left with

the child. (Doc. 13, Ex. 6 at J 8.)

Alas, Carpenter followed the officers outside,

allegedly simply to remind Kirby to bring the child

back the following Sunday. (See id. at JJ 9-10.)

Carpenter was then arrested for disorderly conduct.

(Id. at J 37.) According to plaintiffs, an officer then

“manhandled” Carpenter by throwing her against a

van, pulling her arms back, and pushing her into the

van. (Doc. 1, Att. 1 at p. 8, 9 35.) The charge against

Kirby for disorderly conduct was dismissed on January

17, 2003, on statutory, speedy trial grounds. (/d. at p.

9, J 43.)

The criminal proceedings against Combs were

terminated in his favor on January 28, 2003. (Doc. 8,

ex. A at 4-5, | 9; Doc. 10, Ex. D.)

C. Procedural History

Plaintiffs initiated this action on August 8, 2003, by

filing a complaint in the Warren County Court of

Common Pleas against the City of Franklin, Lt.

Bowling, Sgt. Whitman, Officer Diekman, and Sarah

Kirby. (See Doc. 8, Ex. A). An amended complaint was

filed on December 15, 2003. Ud., Ex. B.)

On October 7, 2004, plaintiffs sought leave to file a

second amended complaint withdrawing claims

against Sarah Kirby and adding claims against two

additional defendants, Officer Troy Wolf and Franklin

City Prosecutor Steven Runge. (/d. at 2730.) Leave to

file the amended complaint was granted over

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defendants’ objections on April 22, 2005. (See Doc. 1,

Att. 1.) |

On May 3, 2005, the state court judge, Hon. Neal B.

Bronson, issued a decision granting in part and

denying in part a motion for summary judgment by the

City of Franklin, Lt. Bowling, Sgt. Whitman, and

Officer Diekman. (Doc. 8, Ex. E.)

On May 11, 2005, Wolf filed a notice removing the

state court action to federal court on the basis of

federal question jurisdiction. (Doc. 1.) All of the other

defendants consented to and joined in the removal.

(See id; see also Doc. 16.)

Plaintiffs filed a motion to remand on the grounds

that the removal was untimely and that the notice of

removal was defective. (See Doc. 5.) On March 27,

2006, the motion to remand was denied by United

States District Judge Michael H. Watson. (Doc. 16.)

On February 17, 2006, defendants filed a motion for

judgment on the pleadings seeking to dismiss Officer

Troy Wolf and Prosecutor Steven Runge. (Doc. 8.) The

motion is unopposed. (See Doc. 14.)

On February 17, 2006, defendants separatcly filed

a motion for summary judgment. (Doc. 10.) As

grounds for their motion, defendants argue, inter alia,

that plaintiffs have failed to establish any

constitutional violations and that the individual police

officers are entitled to qualified immunity. (See id.)

Plaintiffs have filed a memorandum in opposition to

the motion for summary judgment (Doc. 13), to which

defendants have replied (Doc. 15). On October 19,

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2006, defendants filed a motion to supplement their

motion for summary judgment with an opinion letter

from a law enforcement expert. (Doc. 25.)

On March 11, 2006, plaintiffs filed a second motion

to remand this case to state court. (Doc. 14.) Plaintiffs

state that, if the unopposed motion for judgment on

the pleadings is granted, and Troy Wolf —_ the

defendant who initiated the removal from state court

— is dismissed, the Court’s jurisdiction would

terminate.

D. The Claims

The second amended complaint includes eight

counts alleging unlawful conduct by defendants.

In Count I, plaintiffs allege that the officers’ entry

into Combs’s home without a warrant and his arrest

without a warrant violated his rights under the Fourth

and Fourteenth Amendments. (Doc. 1, Att. 1 at

44 8-10.) Plaintiffs further allege that the officers’

failure to prevent the entry into the home constitutes

a separate violation of Combs’s rights. (Ud. at 9 11.)

In Count II, plaintiffs allege that Tyler was seized

by the officers without a warrant or other legal right in

violation of his rights under the Fourth and

Fourteenth Amendments. (/d. at J 16.)

In Count ITI, plaintiffs allege that the arrest and

seizure of Combs and the seizure of ‘Tyler Combs

violated their constitutional rights of familial

association and privacy. (/d. at J 19.)

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22a

| In Count IV, plaintiffs allege that the City of

Franklin failed to adequately train its police officers.

(Id. at | 20.)

In Count V, plaintiffs allege that the officers failed

in their duty to investigate prior to the arrest of Combs

and the seizure of Tyler. (/d. at J 24.)

In Count VI, plaintiffs state that defendants

Bowling and Whitman, a police lieutenant and

sergeant, respectively, failed to properly supervise the

other officers in violation of plaintiffs’ constitutional

rights. (Id. at { 29.)

In Count VII, plaintiffs state that the city

prosecutor, Runge, ratified the constitutional

violations committed by the other officers. (/d. at { 29

{[sic].)

In Count VIII, plaintiffs allege that the officers

lacked probable cause to arrest Carpenter and used

excessive and unreasonable force in effecting her

arrest. (Ud. at 4 35.) They further allege that she was

maliciously prosecuted and denied her constitutionally

protected right to a speedy trial. Ud. at {4 37, 43.)

Finally, plaintiffs allege that the defendant officers

deprived Carpenter of her right of freedom from illegal

confinement and imprisonment; her right of freedom

from physical abuse, coercion, and intimidation; and

her right of timely and effective assistance and

n:edical aid, in violation of her rights under the

Fourth, Fifth, and Fourteenth Amendments of the

United States Constitution; 42 U.S.C. §§ 1983 and

1985; and 18 U.S.C. § 245. Ud. at 49 50-51.)

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23a

Plaintiffs seek injunctive and monetary relief,

including compensatory damages of $2,500,00.00 and

punitive damages of $4,000,000.00. (See id. at pp.

11-12.)

II. PLAINTIFFS’ SECOND

MOTION TO REMAND

Because plaintiffs second motion to remand (Doc.

14) raises a threshold issue concerning the Court’s

subject matter jurisdiction, the Court shall dispose of

that motion first. See Ruhrgas AG v. Marathon Oil

Co., 526 U.S. 574, 587-88 (1999); see also Midwest

Motor Supply Co., Inc. v. Addis, No. 2:05CV0733, 2006

WL 181990, at *1 (S.D. Ohio Jan. 23, 2006). For the

reasons that follow, the motion is DENIED.

As grounds for their second motion to remand,

plaintiffs argue that if the removing defendant, Troy

Wolf, is dismissed as a defendant, the Court’s

jurisdiction would terminate. Their argument lacks

merit.

It is well established that whether removal was

proper is determined as of the time of the removal. See

Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451,

453 (6th Cir. 1996); Boyd v. Diebold, Inc., 97 F.R.D.

720, 721 (E.D. Mich. 1983). “Once an action has been

properly removed, however, plaintiff may not do

anything to defeat federal jurisdiction and force a

remand to state court.” Boyd, 97 F.R.D. at 721 (citing

St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.

283 (1938); Comstock v. Morgan, 165 F. Supp. 798 (D.

Mo. 1958)).

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24a

Moreover, the subsequent dismissal of the

removing defendant does not divest the court’s subject

matter jurisdiction where it is based, as here, on

federal question. See Robinson v. Holiday Universal,

Inc., No. CIV.A. 05-5726, 2006 WL 470592, at *3 (E.D.

Pa. Feb. 23, 2006). If the district court’s jurisdiction

was proper at the time of removal, plaintiffs cannot

“unring the bell” by dismissing the removing

defendant. Id.

Accordingly, the second motion to remand (Doc. 14)

is DENIED.

aw eC

Ill. DEFENDANTS’ MOTION FOR

JUDGMENT ON THE PLEADINGS

In support of their motion for judgment on the

pleadings, defendants argue that claims against

Officer Troy Wolf and Franklin City Prosecutor Steven

Runge are barred by the applicable statute of

limitations. They further argue that claims against

Runge should be dismissed as redundant of claims

brought against the City of Franklin. Alternatively,

they seek dismissal of claims against Runge on the

grounds that he is entitled to quasi-judicial immunity

and, because he acts as an agent for the State of Ohio,

that claims against him are barred by the Eleventh

Amendment. 1

Although the motion for judgment on the pleadings

is unopposed, the Court will address the merits of the

motion. See Hackett v. G.D. Searle & Co., 246 F. Supp.

2d 491,593 (W.D. Tex. 2002) (reviewing an unopposed

motion for judgment on the pleadings on the merits

after noting that it was a dispositive motion). See also

’

25a

Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991)

(holding that “a district court cannot grant summary

judgment in favor of a movant simply because the

adverse party has not responded”).

A. Standard of Review

The standard of review for a motion for judgment

on the pleadings under Fed. R. Civ. P. 12(c) is the

same as that for a motion to dismiss under Fed. R. Civ.

P. 12(b\6). EEOC v. J.H. Routh Packing Co., 246

F.3d 850, 851 (6th Cir. 2001); Grindstaff v. Green, 133

F.3d 416, 421 (6th Cir. 1998). When ruling on a

defendant’s motion to dismiss on the pleadings, a

district court “must construe the complaint in the light

most favorable to the plaintiff, accept all of the

complaint’s factual allegations as true, and determine

whether the plaintiff undoubtedly can prove no set of

facts in support of his claim that would entitle him to

relief.” Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir.

2006) (quoting Ziegler v. IBP Hog Mhkt., Inc., 249 F.3d

509, 512 (6th Cir. 2001)). The court, however, need not

accept as true legal conclusions or unwarranted factual

inferences. Id. (citing Lewis v. ACB Bus. Servs., Inc.,

135 F.3d 389, 405 (6th Cir. 1998)).

B. Analysis

1. Statute of Limitations

Plaintiffs bring this case pursuant to the authority

of 42 U.S.C. § 1983 seeking redress for a denial of their

constitutional rights. Section 1983 actions brought in

Ohio are subject to the two year statute of limitations

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26a

found in Ohio Rev. Code. Ann. § 2305.10. See

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

Claims against Wolf are based on his alleged

participation in the events of August 16, 2002. Thus,

plaintiffs were required to bring those claims on or

before August 16, 2004.

Claims against Runge are based on his role in the

prosecution of criminal charges against Combs and

Carpenter. The charges against Carpenter were

dismissed on January 17, 2003; the proceeding against

Combs was terminated on January 28, 2003. Using

the later date, plaintiffs were required to present a

claim against Runge no later than January 28, 2005.

Leave to file the second amended complaint naming

Wolf and Runge was granted on April 22, 2005, after

the statute of limitations had expired. Unless the

amendment relates back to the original complaint,

claims against Wolf and Runge are barred by the

statute of limitations.

Under Fed. R. Civ. P. 15(c)(3)(B), an amended

complaint that adds a new defendant relates back to

the original complaint only if the newly-named

defendant “knew or should have known that, but for

a mistake concerning the identity of the proper party,

the action would have been brought against [him}.”

Dye v. City of Warren, 367 F. Supp. 2d 1175, 1183

(N.D. Ohio 2005).

The Sixth Circuit has held that new parties may

not be added after the statute of limitations has run,

and that such amendments do not satisfy the mistaken

27a

identity requirement of Rule 15(c)(3)(B). Cox ov.

Treadway, 75 F.3d 230, 240 (6th Cir.), cert. denied, 519

U.S. 821 (1996); see also Reid v. City of Flint, No.

04-73822, 2006 WI. 2644993, at *3 (E.D. Mich. Sept.

14, 2006). Moreover, there is no evidence in the

present case to show, nor any argument made, that

either Wolf or Runge had notice that, but for a mistake

concerning his identity, the original complaint would

have been filed against him.

The claims against Wolf and Runge are barred by

the statute of limitations.

2. Alternative Grounds For Dismissal of

Runge

The alternative grounds presented for the dismissal

of Runge are also well-taken.

Suing a municipal officer in his official capacity for

a constitutional violation pursuant to 42 U.S.C. § 1983

is the’Same as suing the municipality itself. Kraemer

v. Luttrell, 189 Fed. Appx. 361, 366 (6th Cir. 2006)

(citing Hafer v. Melo, 502 U.S. 21, 25 (1991)

(explaining that “official-capacity suits generally

represent only another way of pleading an action

against an entity of which an officer is an agent” and

that “[blecause the real party in interest in an

official-capacity suit |against a municipal officer] is the

governmental entity and not the named official, the

entity’s policy or custom must have played a part in

the violation of federal law”)); see also Monell v.

Department of Soc. Servs. , 436 U.S. 658, 690-91 (1978).

28a

Because Runge was named only in his official

capacity, claims against him are in effect claims

against the City of Franklin.

Additionally, a prosecutor acting within the scope

of his duties in initiating and prosecuting a case is

entitled to absolute immunity from suit for malicious

prosecution. See Imbler v. Pachtman, 424 U.S. 409,

430 (1978); Holloway v. Brush, 220 F.3d 767, 774-75

(6th Cir. 2000) (en banc). There is no evidence to show

that Runge was not acting within the scope of his

official duties. Finally, to the extent Runge may act as

an agent of the State of Ohio in enforcing state laws,

claims against him in his official capacity are barred

by the Eleventh Amendment. See Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 71 (1989).

In sum, it appears beyond doubt that plaintiffs can

prove no set of facts that would entitle them to relicf

as against defendants Wolf and Runge. Accordingly,

the motion for judgment on the pleadings (Doc. 8) is

GRANTED.

IV. DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

The remaining defendants, City of Franklin, Lt.

Bowling, Sgt. Whitman, and Officer Diekman, seek

summary judgment dismissing all claims against

them. (Doc. 10.)

In response, plaintiffs argue that genuine issues of

material fact exist which preclude entry of summary

judgment, and they object to defendants’ attempt to

reargue issues already decided by the state court

judge.

Before reaching the merits of the motion for

summary judgment, the Court must address the issue

of what import should be given to the state court

decision.

A. Effect Of The State Court Decision

As previously noted, while this matter was pending

in the state court, Judge Bronson issued a decision

granting in part and denying in part a motion for

summary judgment by defendants City of Franklin, Lt.

Bowling, Sgt. Whitman, and Officer Diekman. (Doc.

8-3 at 2-5.)

A decision of a state court is not binding on the

federal court to which a pending action has properly

been removed. See Newhouse v. Hansen, No. 5:06 CV

1731, 2006 WL 2583412, at *4 (N.D. Ohio Sept. 7,

2006) (citing King v. Order of United Commercial

Travelers of America, 333 U.S. 153 (1948)); see also

Munsey v. Testworth Labs. , 227 F.2d 902, 903 (Fth Cir.

1955). A federal court need not follow the law of the -

case declared by a state court when a case is removed

on the basis of a federal question. Ellison v. Empire

Gen. Life Ins. Co. (Protective Life Corp.), No. 89-3879,

1990 WL 191630, at *3 (6th Cir. Dec. 3, 1990) (citing

1B J. Moore, J. Lucas & T. Currier, Moore’s Federal

Practice § 404(6) (2d ed. 1988)).

Judge Bronson’s decision was uot a final decision,

and no judgment had been entered in the state court

action. Because the state court judge still had

30a

discretion to change his opinion until such time as he

rendered a final, appealable decision, this Court also

has discretion to revisit that decision. As the Sixth

Circuit has explained: “The law of the case doctrine,

when applied to the decisions of a coordinate court, is

best described as ‘a discretionary tool’ that is used ‘to

promote judicial efficiency.” XL Sports, Ltd. v. Lawler,

49 Fed. Appx. 13, 21-22 (6th Cir. 2002) (quoting United

States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990)); but

see Moses v. Business Card Exp., Inc., 929 F.2d 1131,

1137 (6th Cir.), ceré. denied, 502 U.S. 821 (1991)

(courts should be restrained in revisiting prior

decisions).

B. Standard of Review

A motion for summary judgment should be granted

if the evidence submitted to the Court demonstrates

that. there is no genuine issue as to any material fact

and that the movant is entitled to summary judgment

as a matter of law. Fed. R. Civ. P. 56; see also Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The

moving party has the burden of showing the absence

of genuine disputes over facts which, under the

substantive law governing the issue, might affect the

outcome of the action. Celotex, 477 U.S. at 323. All

facts and inferences must be construed in a light most

favorable to the party opposing the motion.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986).

A party may move for summary judgment on the

basis that the opposing party will not be able to

produce sufficient evidence at trial to withstand a

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motion for judgment as a matter of law. In response to

a summary judgment motion properly supported by

evidence, the nonmoving party is required to present

some significant probative evidence which makes it

necessary to resolve the parties’ differing versions of

the dispute at trial. Harris v. Adams, 873 F.2d 929,

931 (6th Cir. 1989); Sixty Ivy Street Corp. v. Alexander,

822 F.2d 1432, 1435 (6th Cir. 1987).

The Court is not duty bound to search the entire

record in an effort to establish a lack of genuinely

disputed material facts. Guarino v. Brookfteld

Township Trs., 980 F.2d 399, 404 (6th Cir. 1992);

InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th

Cir. 1989), cert. denied sub. nom. Superior Roll

Forming Co. v. Interroyal Corp, 494 U.S. 1091 (1990).

Rather, the burden is on the nonmoving party “to

present affirmative evidence to defeat a properly

supported motion for summary judgment,” Street v.

J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.

1989), and to designate specific facts in dispute.

Anderson, 477 U.S. at 250; Guarino, 980 F.2d at

404-05.

C. Analysis

1. Combs’s Claims

Defendants maintain that they are entitled to

judgment as a matter of law with respect to claims

asserted by Combs against the officers because he

cannot show a constitutional violation based on his

arrest and because the officers are entitled to qualified

immunity. They argue that Combs’s claims against

the City of Franklin fail because he cannot

“a

;

‘

;

32a

demonstrate any unlawful policy or practice or a

failure to train. They also maintain that Combs

cannot establish a substantive due process violation

based on his rights of familial association or privacy.

a. Whether Combs can establish a Fourth

Amendment violation based on the warrantless

entry into the home

It is well established that the warrantless entry

into a home to conduct a search or make an arrest is

unreasonable under the Fourth Amendment except in

a few well-defined instances based on the presence of

exigent circumstances. See Payton v. New York, 445

U.S. 573, 586 (1980); Katz v. United States, 389 U.S.

347, 357 (1967).

As the United States Supreme Court has held: “Io

be arrested _in the home involves the invasion

attendant to all arrests but also the invasion of the

sanctity of the home. This is simply too substantial an

invasion to allow _ without a warrant, at least in the

absence of exigent circumstances, even when it is

accomplished under statutory authority and when

probable cause is clearly present.” Payton v, New

York, supra, 445 U.S. at 588-89 (quoting United States

v. Reed, 572 F. 2d 412, 423 (2d. Cir. 1978), cert. denied,

sub nom. Goldsmith v. United States, 439 U.S. 913

(1978)) (emphasis supplied).

Accordingly, to arrest Combs in his home required

the presence of a warrant, as a matter of clearly

established law. Here, there exists a genuine issue of

material fact in dispute as to whether or not a warrant

existed.

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33a

Moreover, as to exigent circumstances, they exist

only where real immediate and serious consequences

would certainly occur were a police officer to postpone

action to get a warrant. O’Donnell v. Brown, 335 F.

Supp. 2d 787, 804 (W.D. Mich. 2004) (citing United

States v. Williams, 354 F.3d 497, 503 (6th Cir. 2003);

O’Brien v. City of Grand Rapids, 23 F.3d 990, 997 (6th

Cir. 1994) (internal quotation marks and citation

omitted).) There must be a “need to protect or

preserve life or avoid serious injury.” O’Donnell, 335

F. Supp. 2d at 805 (quoting O’Brien, 23 F.3d at 997);

see also Mincey v. Arizona, 437 U.S. 385, 392 (1978).

Furthermore, as in the present case, when authorities

seek to enter a home in order to remove a child from

his parent’s custody, exigent circumstances do not

exist where there is no evidence that the child was in

immediate threat of death or severe physical harm.

See id. (citation omitted).

The officers are not entitled to summary judgment

based on their assertion that a warrant had been

issued because, as found by Judge Bronson, genuine

issues of material fact exist as to this claim.

Additionally, the officers are not entitled to

summary judgment on the basis of exigent

circumstances because there is no evidence that such

circumstances existed.

Accordingly, Defendants are not entitled to

summary judgment on Combs’s claim for a violation of

the Fourth Amendment based on the allegedly

warrantless entry into his home to arrest him.

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34a

b. Whether the officers are entitled to qualified

immunity

“Qualified immunity is an affirmative defense that

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.” Estate

of Carter v. City of Detroit, 408 F 3d 305, 310 (6th Cir.

2005) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)).

To determine whether the officers are entitled to

qualified immunity, the court must determine first,

“whether, considering the allegations in a light most

favorable to the party injured, a constitutional right

has been violated,” and second “whether that right was

clearly established.” Id. The court may also consider

“whether the plaintiff offered sufficient evidence to

indicate that what the official[s] allegedly did was

objectively unreasonable in light of the clearly

established constitutional rights.”. Champion ov.

Outlook Nashville, Inc., 380 F.3d 893, 905 “th Cir.

2004), cert. denied sub. nom. Dickhaus v. Outlook

Nashville, Inc., 544 U.S. 975 (2005).

Judge Bronson determined that defendant police

officers were not entitled to judgment as a matter of

law on the grounds of qualified immunity with respect

to claims brought by Combs and Tyler. (/d. at 2-4.) He

based his determination on the absence of evidence

that the officers were acting pursuant to a valid

warrant. He held that in the absence of a warrant or

other explanation, he could not conclude that the

officers acted in good faith and, construing the facts in

35a

a light favorable to plaintiffs, that reasonable minds

could not conclude that a clearly established right was

not violated as a matter of law.

This Court agrees that the officers are not entitled

to summary judgment upon the basis of qualified

immunity given the dispute in the material facts as to

whether or not the officers, without warrants, entered

the home and arrested Combs and seized Tyler. That

is, viewing the factual allegations in Plaintiffs’ favor,

as required, the warrantless entry into the home

would violate a clearly established constitutional right

and would be objectively unreasonable in light of the

clearly established constitutional rights.

Accordingly, upon the current record, the officers

are not entitled to summary judgment on the basis of

qualified immunity.’

c. Whether Combs can establish a Fourth

Amendment violation based on his arrest

without a warrant

Even if the officers’ entry into Combs’s home may

have been contrary to the Fourth Amendment, his

arrest, which is analyzed separately, see O’Donneld,

335 F. Supp. 2d at 806, was not.

' Denial of qualified immunity is only an appealable final decision

when it turns on an issue of law. A defendant who is entitled to

invoke a qualified immunity defense may not appeal a district

court’s summary judgment order in so far as that order

determines whether or not the pretrial record sets forth a genuine

issue of ~aterial fact for trial. McKenna v. City of Royal Oak, __

F.3d _. 2006 WL 3408190, at *2 (6th Cir. Nov. 28, 2006).

;

36a

An arrest without a warrant does not violate the

Fourth Amendment if probable cause exists for the

arresting officer’s belief that a suspect has violated or

is violating the law. Michigan v. DeFillippo, 443 U.S.

31, 36 (1979). “Probable cause” is defined as the “facts

and circumstances within the officer’s knowledge that

are sufficient to warrant a prudent person, or one of

reasonable caution, in believing, in the circumstances

shown, that the suspect has committed, is committing,

or is about to commit an offense.” Jd. at 37.

The officers possessed probable cause to arrest

Combs for violating the court order. The undisputed

evidence shows that a valid Domestic Violence

Protective Order existed that not only established a

visitation plan but also expressly authorized the arrest

of the Respondent (Combs) for violating any of the

terms of the Order. (See Doc. 10, Ex. A at pp. 1, 4.) It

is also undisputed that on the night of his arrest,

Combs’s failure to deliver Tyler to the Franklin Police

Department was in violation of the Protective Order.

Because probable cause existed for his arrest,

Combs cannot establish a Fourth Amendment

violation based solely on the arrest, and separate from

the one based on the alleged warrantless entry into the

home. Defendants are entitled to summary judgment

in this respect.

d. Whether the arrest was made pursuant to an

unlawful policy or custom

Defendants maintain that the City of Franklin is

entitled to summary judgment in its favor because

Combs cannot establish that his arrest was made

37a

pursuant to an unlawful policy or custom and there is

no evidence that the City acted with deliberate

indiffererce in training its officers.

As noted by Judge Bronson, and as acknowledged

by defendants, a single act can constitute an

unconstitutional policy if the discretionary act was

made by an official vested with final authority.

Pembaur v. City of Cincinnati, 475 U.S. 469, 482

(1985). (See Doc. 8, Ex. F (citing Monell v. Department

of Social Servs., 436 U.S. 658 (1978).)

However, in light of the absence of evidence that

Prosecutor Runge advised Kirby to have the police

enter Combs’ s home without a search warrant and

arrest him without a warrant for violating the court’s

protective order, Combs cannot state a claim for an

unlawful act by the City pursuant to an unlawful

policy or custom. That is, because Combs does not have

a claim for unlawful arrest, as the officers possessed

probable cause to arrest him, Combs’s only claim

against the City would have to be based upon the

allegedly unlawful entry into the home without a

warrant. However, as to such claim, plaintiffs have

failed to allege or evidence that Runge advised entry

Plaintiffs have a burden to respond to defendants’

motion for summary judgment with some evidence to

sustain their claim, and they have not done so. Thus,

Combs has no claim against the City of Franklin for

the allegedly unlawful entry into the home as a matter

of custom or policy, and summary judgment shall be

entered accordingly.

38a

e. Whether the act of transferring Tyler to Sarah

Kirby violated Combs’s constitutional rights of

familial association and privacy

Defendants maintain that they are entitled to

summary judgment with respect to Combs’s claim that

the transfer of his son to Kirby violated his rights of

familial association and privacy.

It was clearly established law in 2002 (and is now)

that, except in extraordinary circumstances, a parent

has a liberty interest in familial association and

privacy that cannot be violated without adequate

pre-deprivation procedures. See Malik v. Arapahoe

Cty. Dep’t of Soc. Servs., 191 F.3d 1306, 1315 (10th Cir.

1999) (citing Santosky v. Kramer, 455 U.S. 745, 753-54

(1982)). The removal of a child from his custodial

parent’s home is constitutionally reasonable, however,

if it is pursuant to a court order, is supported by

probable cause, or is justified by exigent

circumstances. See Brokaw v. Mercer County, 235 F.3d

1000,. 1010 (7th Cir. 2000) (emphasis supplied); see

also O’Donnell, 335 F. Supp. 2d at 806-07.

The officers allege that they were acting pursuant

to the authority of the Domestic Violence Protective

Order of the state court, which expressly provided that

Tyler would be in Kirby’s custody between the hours of

6:00 p.m. Friday and 6:00 p.m. Sunday. (See Doc. 10,

Ex. A.) Although the Order (properly) does not provide

that the officers could enter the custodial parent’s

home without a warrant to effectuate the temporary

change in custody, the undisputed facts show that

Combs was in violation of the visitation provision and

are sufficient to establish probable cause to support

39a

the officers’ seizure of Tyler and arrest of Combs. See

Brokaw, 235 F.3d at 1010.

Accordingly, defendants are entitled to summary

judgment on this claim.

2. Tyler’s Claims

Defendants also seek summary judgment with

respect to Tyler's claims on the grounds that he cannot

establish an unlawful seizure based on his transfer by

an officer from Carpenter to Sarah Kirby and because

the officers are entitled to qualified immunity. They

reassert that the officers’ actions do not “shock the

conscience” and thus do not establish a violation of

Tyler’s familial association or privacy rights

Defendant officers are entitled to judgment as a

matter of law with respect to Tyler’s claims of an

unlawful seizure and a violation of his familial

association and privacy rights because, as discussed

above, probable cause existed to justify defendants’

actions in removing him from Combs’s home.’

The City of Franklin is also entitled to judgment as

a matter of law on Tyler’s claims because, as noted by

Judge Bronson, Tyler has failed to come forward with

any evidence of a discretionary act toward him by a

vested official. See Pembaur, 475 U.S. at 482.

? Nonetheless, to the extent that Tyler seeks to challenge the

officers’ warrantless entry into his (and his father’s) home,

defendant officers would not be entitled to judgment as a matter

of law. It does not appear that such a claim is stated in the second

amended complaint.

40a

3. Carpenter’s Claims

Finally, defendants maintain that they are entitled

to judgment as a matter of law with respect to

Carpenter’s claims. First, they argue that they are

entitled to qualified immunity because the officers had

probable cause to arrest her for disorderly conduct and

she has failed to present sufficient evidence to

establish an excessive use of force claim. They also

_ argue that she has failed to present evidence of an

unlawful practice or policy to support her claims

against the City of Franklin and that she has failed to

present sufficient evidence to support a substantive

due process claim.

a. Whether the officers had probable cause to arrest

Carpenter for disorderly conduct

Defendants contend that they are entitled to

qualified immunity with respect to Carpenter’s claim

that her arrest on a charge of disorderly conduct

violated her rights under the Fourth Amendment.

They are entitled to qualified immunity (and summary

judgment) on this claim if they can show that they had

probable cause to believe that she committed the

offense. See Hunter v. Bryant, 502 U.S. 224, 228

(1991) (per curiam).

In determining whether the officers had probable

cause to arrest Carpenter for disorderly conduct, the

Court examines whether, “at that moment lof the

arrest,] the facts and circumstances within their

knowledge and of which they had _ reasonably

trustworthy information were sufficient to warrant a

prudent man in believing that the [larrestee] had

4la

committed or was committing an offense.” Beck v.

Ohio, 379 U.S. 89, 91(1964).

The Ohio disorderly conduct statute provides in

part as follows:

(A) No person shall recklessly cause

inconvenience, annoyance, or alarm to another

by doing any of the following:

(1) Engaging in fighting, in threatening

harm te persons or property, or in violent or

turbulent behavior;

(2) Making unreasonable noise or an

offensively coarse utterance, gesture, or

display or communicating unwarranted and

grossly abusive language to any person;

(3) Insulting, taunting, or challenging

another, under circumstances in which that

conduct is likely to provoke a _ violent

response;

(4) Hindering or preventing’ the

movement of persons on a public strect,

road, highway, or right-of-way, or to, from,

within, or upon public or private property, so

as to interfere with the rights of others, and

by any act that serves no lawful and

reasonable purpose of the offender;

(5) Creating a condition that is physically

offensive to persons or that presents a risk of

physical harm to persons or property, by any

42a

act that serves no lawful and reasonable

purpose of the offender.

Ohio Rev. Code Ann. § 2917.11(A).

The statute also prohibits conduct, and makes it an

arrestable offense, where “[t]he offender persists. . .

after reasonable warning or request to desist” or the

conduct is “committed in the presence of any law

enforcement officer.” Ohio Rev. Code Ann.

§ 2917.11(E). Carpenter was charged with violating

§ 2917.11(E). (See Doc. 10, Ex. C.)

The Ohio courts have held that a person may be

found to have violated the disorderly conduct statute

and engaged in “turbulent behavior” by confronting

sheriffs deputies loudly and hostilely, and by failing to

calm down when asked to do so. See Thacker v.

Lawrence County, 182 Fed. Appx. 464, 470 (6th Cir.

2006) (citing State v. Jackson, No. 17128, 1998 WL

801367, at *3 (Ohio Ct. App. Nov. 20, 1998)

(unpublished).)

The undisputed evidence shows that Carpenter was

upset at the prospect of the officer removing Tyler

from Combs’s home, that she followed the officer

carrying Tyler out of the residence, that her conduct

was upsetting other children in the home, that the

officers asked her to calm down and that she failed to

do so, and that she shouted at Kirby in a voice loud

enough to be heard 30-40 feet away. (See Doc. 10, Ex.

C. at 79 11-14; Doc. 11, “Deposition of LaDawnya K.

Carpenter” (hereinafter (“Dep.”), at pp. 127, 13132,

147-48.)

sh Ais hie = ae

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43a

Even accepting Carpenter’s version of disputed

facts, e.g., she was not cursing and, while upset and

crying, was not angry (see Dep. at pp. 148-49), a

prudent officer could have believed that Carpenter was

violating the statute based on her opposition to giving

Tyler over to Kirby, the volume and delivery of her

speech (not simply its content), and her persistent

failure to calm down despite the officers’ requests. See

Thacker, 182 Fed. Appx. at 470 (citing Beck, 379 U.S.

at 9; Jackson, 1998 WL 801367, at *3).

Carpenter has the burden of proving the absence of

probable cause. See St. John v. Hickey, 411 F.3d 762,

769 (6th Cir. 2005). She has not presented sufficient

evidence to create a genuine issue of fact as to the

existence of probable cause. Thus, defendants are

entitled to summary judgment on Carpenter’s claim of

an unlawful arrest.

b. Whether defendants are entitled to summary

judgment on Carpenter’s claim of an excessive

use of force

Defendants also argue that Carpenter has failed to

present sufficient evidence to establish a claim based

on an excessive use of force. They seek leave to

supplement their motion for summary judgment with

an opinion letter by a law enforcement expert. (Doc.

25.) |

The Sixth Circuit has determined that rulings on

the admissibility of expert opinion evidence are within

the discretion of the trial court. See Brainard v.

American Skandia Life Assur. Corp. , 432 F.3d 655, 663

(6th Cir. 2005). “An expert opinion submitted in the

44a

context of a summary judgment motion ‘must be more

that a conclusory assertion about ultimate legal

issues.” Id. (citation omitted). The opinion “must ‘set

forth facts’ and, in so doing, outline a line of reasoning

arising from a logical foundation.” Jd. (citations

omitted).

The expert opinion in the present case states, inter

alia, that a bruise sustained by Carpenter “might be

consistent with an escort by an officer of a resistant

suspect” and that the use of force by defendant officers

Bowling, Whitman and Diekman was “proper” and

“within the parameters of the Franklin (OH) Police

Department’s use of force policy” and the “nationally

accepted guidelines of the law enforcement industry

regarding use of force.” (Doc. 25, Ex. A-2 at pp. 5-7.)

An excessive force claim is analyzed under the

Fourth Amendment’s “objective reasonableness”

standard. See Graham v. Connor, 490 U.S. 386, 395

(1989). “The ‘reasonableness’ of a particular use of

force must be judged from the perspective of a

reasonable officer on the scene, rather than with the

20/20 vision of hindsight.” /d.

The Court finds that the expert opinion submitted

by defendants fails to meet the requirement for a

factual basis and that the finding of a “proper” use of

force is a conclusory assertion about an ultimate legal

issue.

Accordingly, the motion for leave to supplement the

motion for summary judgment (Doc. 25) is DENIED.

The Court does not determine in this Order the issue

of the admissibility of the expert’s opinion at trial.

45a

The Court finds further that disputed issues of

material fact exist concerning Carpenter’s conduct and

the need for any use of force.

Whether the amount of force used in a particular

case was reasonable “requires careful attention to the

facts and circumstances .. ., including the severity of

the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others,

and whether [she] is actively resisting arrest or

attempting to evade arrest by flight.” Graham, 490

U.S. at 396; see also St. John, 411 F.3d at 771. These

factors are not exhaustive; rather the ultimate

question is “whether the totality of the circumstances

justifies a particular sort of seizure.” Graham, 490

USS. at 396.

The crime of disorderly conduct is not a hetnously

serious crime. See Thacker, 182 Fed. Appx. at 472.

The parties dispute whether Carpenter posed a threat

to the safety of the officers or others, whether or when

she was told that she was under arrest, and whether

she resisted the officers’ attempt to restrain her or to

handcuff her.

In light of disputed issues of material fact,

summary judgment is not appropriate on Carpenter’s

excessive force claim.

: c. Whether Carpenter presented sufficient evidence

" of an unlawful practice or policy to prevail on

her claims against the City of Franklin

In Count VII of the second amended complaint,

Carpenter alleges that she was falsely arrested,

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46a

maliciously prosecuted, and denied a speedy trial by

the City of Franklin.

Municipal liability attaches only where a plaintiffs

injury is the result of an official custom or policy of the

city. Pembaur, 475 U.S. 479. “To show the existence

of an offending custom or policy, plaintiffs must

adduce specific facts supporting their claim; conclusory

allegations are insufficient.” Games Galore of Ohio,

Inc. v. Masminster, 154 F. Supp. 2d 1292, 1300 (S.D.

Ohio 2001) (citing Taylor v. Canton, Ohio Police Dep’t,

544 F. Supp. 783 (N.D. Ohio 1982)). A single act can

constitute an unconstitutional policy if the

discretionary act was made by an official vested with

final authority. Pembaur, 475 U.S. at 482.

Here, as evidence of an unlawful policy, plaintiffs

contend that the City Prosecutor, Runge, “ratified” the -

actions of the City. They argue further that criminal

charges were filed against an eyewitness to these

events, Mary Zolecki, to intimidate her and keep her

from testifying at Carpenter’s trial.

However, each of Carpenter’s underlying claims —

(1) that she was falsely arrested; (2) that she was

maliciously prosecuted; and (3) that she was denied a

speedy trial — fail on the evidenced facts as a matter

of law.

(1) Carpenter was not falsely arrested as the Court

has found upon the facts and law that the officers

possessed probable cause to arrest her.

(2) Carpenter likewise cannot prove malicious

prosecution, because lack of probable cause is an

7. 2. ~~ F-

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element and the gist of the civil tort for malicious

criminal prosecution, see Trussell v. General Motors

Corp. (1990), 53 Ohio St. 3d 142, and here the officers

possessed probable cause to prosecute upon the facts

as a matter of law.

(3) As to Carpenter’s claim that she was denied a

speedy trial, a defendant’s right to a speedy trial under

the Sixth and Fourteenth Amendments is _ not

self-executing — she must request or demand a speedy

trial to invoke the constitutional protection See State

v. Butler, 19 Ohio St. 2d 55, 56-57, 249 N.E.2d 818, 819

(Ohio 1969). Here, Carpenter has failed to establish

that she took the necessary action to invoke the

protection as the record before this Court reflects only

that the state court dismissed the case. In any event,

Carpenter’s claim fails because she has not provided

evidence of any custom or policy resulting in the delay

in bringing her to trial. See Monell, 436 U.S. at 684;

see also Smith v. Shelby Cty., 3 Fed. Appx. 436, 438

(6th Cir. 2001).

Defendants being entitled to judgment as matter of

law on these claims upon the undisputed material

facts, summary judgment shall be entered accordingly.

t. Whether Carpenter presented sufficient evidence

to prevail on a claim of a substantive due

process violation

Next, defendants assert that they are entitled to

judgment as a matter of law because Carpenter has

failed to present sufficient evidence to support a

substantive due process claim. Plaintiffs did not

respond to this argument and have failed to establish

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a genuine issue of material fact. Accordingly,

Defendants are entitled to summary judgment on

Carpenter’s due process claim. —

e. Whether plaintiffs have presented sufficient

evidence to prevail on claims for failure to

investigate, train and supervise the Officers

(Counts IV-VI).

Defendants assert finally that they are entitled to

judgment as a matter of law because plaintiffs have

failed to present sufficient evidence to support their

claims of failure to investigate, train and supervise.

Plaintiffs did not support these claims by argument or

evidence, and they have failed to establish a genuine

issue of material fact. Accordingly, summary judgment

shall be entered against plaintiffs on Counts IV, V, and

VI.

4. Claims Under 42 U.S.C. § 1985 and 18 U.S.C.

§ 245, and Claims for Injunctive Relief

The second amended complaint also included

claims for relief under 42 U.S.C. § 1985 and 18 U.S.C.

§ 245, as well as claims for injunctive relief. (See Doc.

lat p. 11,9 51.)

While this action was pending in state court, Judge

Bronson granted summary judgment for defendants on

plaintiffs’ claims under 18 U.S.C. § 245 and 42 U.S.C.

§ 1985 and on plaintiffs’ claims for injunctive relief.

Plaintiffs do not now dispute this ruling, and

Defendants are entitled to summary judgment on

these claims.

Pe ON. RY of

a 49a

V. CONCLUSION

| For the reasons stated above, IT IS HEREIN —

ORDERED THAT: y

1. Plaintiffs’ second motion to remand (Doc. 14) is 3

DENIED; | :

2. Defendants’ motion for judgment on the pleadings "

(Doc. 8) is GRANTED; claims against defendants .

Troy Wolf and Steven M. Runge are DISMISSED |

with prejudice; and defendants Troy Wolf and

Steven M. Runge are DISMISSED as parties to

this case;

Ob Stee et ee iS,

3. Defendants’ motion for leave to supplement their

motion for summary judgment with an expert

opinion report (Doc. 25) is DENIED; and

4. Defendants’ motion for summary judgment (Doc.

10) is GRANTED IN PART and DENIED IN

PART as follows:

a —— se. oe a ee oe

a. Summary judgment is GRANTED in favor of

7 defendants with respect to the following claims:

» Combs’s claim that he was arrested without

probable cause;

¥ » Combs’s and Tyler’s claims based on an

q unlawful seizure and a violation of familial

| association and privacy rights;

» Tyler’s claims against the City of Franklin;

> Carpenter’s claim that she was arrested

without probable cause;

Carpenter’s claim that she was maliciously

prosecuted;

Carpenter’s claim that she was denied a

speedy trial;

>» Carpenter’s due process claim;

: » Combs’s and Carpenter’s claims against the

City of Franklin;

>» claims under 18 U.S.C. § 245;

+ claims under 42 U.S.C. § 1985; and

: >» claims for injunctive relief.

b. Summary judgment is DENIED with respect to

the following:

>» Plaintiffs’ claims based on a warrantless

entry into Combs’s home; 4

} and |

3 » Carpenter’s excessive force claim.

3 Accordingly, this case shall commence to trial only .

% with respect to these two causes of action against a

defendants Bowling, Whitman and Diekman.

IT IS SO ORDERED.

aan

UNITED STATES COURT OF APPEALS

[Filed July 17, 2008]

No. 07-3100

LADAWNYA K. CARPENTER, ET AL..,

Plaintiffs-Appellees,

LESLIE WAYNE BOWLING, ET AL.,

Defendants-Appellants.

Ne eee eee ee”

ORDER

BEFORE: BATCHELDER and SUTTON, Circuit

Judges; and BARZILAY, Judge.

The court having received a petition for rehearing

en banc, and the petition having been circulated not

only to the original panel members but also to all other

* Hon. Judith M. Barzilay, Judge of the United States Court of

International Trade, sitting by designation.

oe "

e. : Ser

8 ee A ets td 2 Bae

sof this court, and no judge of this court _

a vote on the ‘suggestion | for

The panel has further reviewed the petition for

petition were. fully” considered upon the original

submission and decision of the case. Accordingly, the

petition is denied.

ENTERED BY ORDER OF THE COURT

j /s/

Leonard Green

; Clerk

eee A ee mite § i 4 b>? Se»

APPENDIX E

Baldwin’s Ohio Revised Code Annotated

Title XXXI. Domestic Relations--Children

Chapter 3113. Neglect, Abandonment, or Domestic

Violence (refs & Annos)

Domestic Violence

R.C. § 3113.31 Petitions; protection orders

concerning domestic violence or sexually

oriented offense; support orders; sanctions for

violations; notification of law enforcement

agencies and courts

(A) As used in this section:

(1) “Domestic violence” means the occurrence of one or

more of the following acts against a family or

household member:

(a) Attempting to cause or recklessly causing bodily

injury;

(b) Placing another person by the threat of force in fear

of imminent serious physical harm or committing a

violation of section 2903.211 or 2911.211 of the Revised

Code;

would result in the child being an abused child, as

defined in section 2151.031 of the Revised Code;

;

: (2) Committing o esxnally eviented offense.

(2) “Court” means the domestic relations division of

= the court of common pleas in counties that have a

domestic relations division, and the court of common

pleas in counties that do not have a domestic relations

livisi

(3) “Family or household member” means any of the

following:

Ra Fee '

I peal 7?

(a) Any of the following who is residing with or has

resided with the respondent:

(i) A spouse, a person living as a spouse, or a former

spouse of the respondent;

(ii) A parent or a child of the respondent, or another

person related by consanguinity or affinity to the

respondent;

(iii) A parent or a child of a spouse, person living as a

spouse, or former spouse of the respondent, or another

person related by consanguinity or affinity to a spouse,

person living as a spouse, or former spouse of the

respondent.

(b) The natural parent of any child of whom the

respondent is the other natural parent or is the

putative other natural parent.

4 (4) “Person living as a spouse” means a person who is

: living or has lived with the respondent in a common

3 law marital relationship, who otherwise is cohabiting

+ with the respondent, or who otherwise has cohabited

rs)

¥.

56a

- with the respondent within five years prior to the date

a of the alleged occurrence of the act in question.

(5) “Victim advocate” means a person who provides

support and assistance for a person who files a petition

under this section.

(6) “Sexually oriented offense” has the same meaning

as in section 2950. 01 of the Revised Code.

(B) The court has jurisdiction over all proceedings

under this section. The petitioner’s right to relief

under this section is not affected by the petitioner’s

leaving the residence or household to avoid further

domestic violence.

person’s own behalf, or any parent or adult household

member may seek relief under this section on behalf of

any other family or household member, by filing a

petition with the court. The petition shall contain or

state:

; (1) An allegation that the respondent engaged in

domestic violence against a family or household

3 member of the respondent, including a description of

E the nature and extent of the domestic violence;

(2) The relationship of the respondent to the petitioner,

and to the victim if other than the petitioner;

(3) A request for relief under this section.

(D)(1) If a person who files a petition pursuant to this

section requests an ex parte order, the court shall hold

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57a .

an ex parte hearing on the same day that the petition

is filed. The court, for good cause shown at the ex parte

hearing, may enter any temporary orders, with or

without bond, including, but not limited to, an order

described in division (E)(1)(a), (b), or (c) of this section,

that the court finds necessary to protect the family or

household member from domestic violence. Immediate

and present danger of domestic violence to the family

or household member constitutes good cause for

purposes of this section. Immediate and present

danger includes, but is not limited to, situations in

which the respondent has threatened the family or

household member with bodily harm, in which the

respondent has threatened the family or household

member with a sexually oriented offense, or in which

the respondent previously has been convicted of or

pleaded guilty to an offense that constitutes domestic

violence against the family or household member.

(2)(a) If the court, after an ex parte hearing, issues an

order described in division (E)(1)(b) or (c) of this

section, the court shall schedule a full hearing for a

date that is within seven court days after the ex parte

hearing. If any other type of protection order that is

authorized under division (F) of this section is issued

by the court after an ex parte hearing, the court shall

schedule a full hearing for a date that is within ten

court days after the ex parte hearing. The court shall

give the respondent notice of, and an opportunity to be

heard at, the full hearing. The court shall hold the full

hearing on the date scheduled under this division

unless the court grants a continuance of the hearing in

accordance with this division. Under any of the

following circumstances or for any of the following

fms

hearing to a reasonable time determined by the court:

(i) Prior to the date scheduled for the full hearing

under this division, the respondent has not been

served with the petition filed pursuant to this section

and notice of the full hearing.

(ii) The parties consent to the continuance.

(iii) The continuance is needed to allow a party to

obtain counsel.

(iv) The continuance is needed for other good cause.

(b) An ex parte order issued under this section does not

expire because of a failure to serve notice of the full

hearing upon the respondent before the date set for the

full hearing under division (D)(2)(a) of this section or

because the court grants a continuance under that

division.

(3) If a person who files a petition pursuant to this

section does not request an ex parte order, or if a

person requests an ex parte order but the court does

not issue an ex parte order after an ex parte hearing,

the court shall proceed as in a normal civil action and

grant a full hearing on the matter.

(E)(1) After an ex parte or full hearing, the court may

grant any protection order, with or without bond, or

approve any consent agreement to bring about a

cessation of domestic violence against the family or

household members. The order or agreement may:

;

59a

(a) Direct the respondent to refrain from abusing or

from committing sexually oriented offenses against the

family or household members;

(b) Grant possession of the residence or household to

the petitioner or other family or household member, to

the exclusion of the respondent, by evicting the

respondent, when the residence or household is owned

or leased so'ely by the petitioner or other family or

household member, or by ordering the respondent to

vacate the premises, when the residence or household

is jointly owned or leased by the respondent, and the

petitioner or other family or household member;

petitioner or other family or household member living

in the residence or household and the respondent is

the sole owner or lessee of the residence or household,

grant possession of the residence or household to the

petitioner or other family or household member, to the

exclusion of the respondent, by ordering the

respondent to vacate the premises, or, in the case of a

consent agreement, allow the respondent to provide

suitable, alternative housing;

(d) Temporarily allocate parental rights and

responsibilities for the care of, or establish temporary

parenting time rights with regard to, minor children,

if no other court has determined, or is determining, the

allocation of parental rights and responsibilities for

the minor children or parenting time rights;

(e) Require the respondent to maintain support, if the

respondent customarily provides for or contributes to

the support of the family or household member, or if

the respondent has a duty to support the petitioner or

family or household member;

(f) Require the respondent, petitioner, victim of

domestic violence, or any combination of those persons,

to seek counseling;

(g) Require the respondent to refrain from entering the

residence, school, business, or place of employment of

the petitioner or family or household member;

(h) Grant other relief that the court considers

equitable and fair, including, but not limited to,

ordering the respondent to permit the use of a motor

vehicle by the petitioner or other family or household

member and the apportionment of household and

family personal property.

(2) If a protection order has been issued pursuant to

this section in a prior action involving the respondent

and the petitioner or one or more of the family or

household members or victims, the court may include

in a protection order that it issues a prohibition

against the respondent returning to the residence or

household. If it includes a prohibition against the

respondent returning to the residence or household in

the order, it also shall include in the order provisions

of the type described in division (E)(7) of this section.

This division does not preclude the court from

including in a protection order or consent agreement,

in circumstances other than those described in this

division, a requirement that the respondent be evicted

from or vacate the residence or household or refrain

from entering the residence, school, business, or place

of employment of the petitioner or a family or

es ~

6la

household member, and, if the court includes any

requirement of that type in an order or agreement, the

court also shall include in the order provisions of the

type described in division (E)(7) of this section.

(3a) Any protection order issued or consent

agreement approved under this section shall be valid

until a date certain, but not later than five years from

the date of its issuance or approval unless modified or

terminated as provided in division (E)(8) of this

section.

(b) Subject to the limitation on the duration of an order

or agreement set forth in division (E)(3)(a) of this

section, any order under division (E)(1)(d) of this

section shall terminate on the date that a court in an

action for divorce, dissolution of marriage, or legal

separation brought by the petitioner or respondent

issues an order allocating parental rights and

responsibilities for the care of children or on the date

that a juvenile court in an action brought by the

petitioner or respondent issues an order awarding

legal custody of minor children. Subject to the

limitation on the duration of an order or agreement set

forth in division (E)(3)(a) of this section, any order

under division (E)(1)(e) of this section shall terminate

on the date that a court in an action for divorce,

dissolution of marriage, or legal separation brought by

the petitioner or respondent issues a support order or

on the date that a juvenile court in an action brought

by the petitioner or respondent issues a support order.

approved pursuant to this section may be renewed in

a a

a 7 he

é; 3

62a

the same manner as the original order or agreement

was issued or approved.

(4) A court may not issue a protection order that

requires a petitioner to do or to refrain from doing an

act that the court may require a respondent to do or to

refrain from doing under division (E)(1)(a), (b), (ce), (d),

(e), (g), or (h) of this section unless all of the following

apply: :

(a) The respondent files a separate petition for a

protection order in accordance with this section.

(b) The petitioner is served notice of the respondent’s

petition at least forty-eight hours before the court

holds a hearing with respect to the respondent’s

petition, or the petitioner waives the right to receive

this notice.

pursuant to division (D) of this section, the court does

not delay any hearing required by that division beyond

the time specified i» that division in order to

consolidate the hearing with a hearing on the petition

filed by the respondent.

(d) After a full hearing at which the respondent

presents evidence in support of the request for a

protection order and the petitioner is afforded an

opportunity to defend against that evidence, the court

determines that the petitioner has committed an act of

domestic violence or has violated a temporary

protection order issued pursuant to section 2919.26 of

the Revised Code, that both the petitioner and the

respondent acted primarily as aggressors, and that

“NE

63a

t neither the petitioner nor the respondent acted

3 primarily in self-defense.

(5) No protection order issued or consent agreement

3 approved under this section shall in any manner affect

a title to any real property.

(6)(a) If a petitioner, or the child of a petitioner, who

obtains a protection order or consent agreement

pursuant to division (E)(1) of this section or a

temporary protection order pursuant to section

2919.26 of the Revised Code and is the subject of a

parenting time order issued pursuant to section

3109.051 or 3109.12 of the Revised Code or a visitation

or companionship order issued pursuant to section

3109.051, 3109.11, or 3109.12 of the Revised Code or

division (E)(1)(d) of this section granting parenting

time rights to the respondent, the court may require

the public children services agency of the county in

which the court is located to provide supervision of the

respondent’s exercise of parenting time or visitation or .

companionship rights with respect to the child for a

period not to exceed nine months, if the court makes

the following findings of fact:

(i) The child is in danger from the respondent;

(ii) No other person or agency is available to provide

the supervision.

= 7)

(b) A court that requires an agency to provide

q supervision pursuant to division (E)6)a) of this

section shall order the respondent to reimburse the

agency for the cost of providing the supervision, if it

. Ta ey ts *

re Pw, Pee eae - “Foe

determines that the respondent has sufficient income

or resources to pay that cost.

(7)(a) If a protection order issued or consent agreement

approved under this section includes a requirement

that the respondent be evicted from or vacate the

residence or household or refrain from entering the

residence, school, business, or place of employment of

the petitioner or a family or household member, the

order or agreement shall state clearly that the order or

agreement cannot be waived or nullified by an

invitation to the respondent from the petitioner or

other family or household member to enter the

residence, school, business, or place of employment or

by the respondent’s entry into one of those places

otherwise upon the consent of the petitioner or other

family or household member.

(b) Division (E)(7)(a) of this section does not limit any

discretion of a court to determine that a respondent

charged with a violation of section 2919.27 of the

Revised Code, with a violation of a municipal

ordinance substantially equivalent to that section, or

with contempt of court, which charge is based on an

alleged violation of a protection order issued or consent

agreement approved under this section, did not

commit the violation or was not in contempt of court.

(8a) The court may modify or terminate as provided

in division (E)(8) of this section a protection order or

consent agreement that was issued after a full hearing

under this section. The court that issued the protection

order or approved the consent agreement shall hear a

motion for modification or termination of the

65a

protection order or consent agreement pursuant to

division (E)(8) of this section.

(b) Either the petitioner or the respondent of the

original protection order or consent agreement may

bring a motion for modification or termination of a

protection order or consent agreement that was issued

or approved after a full hearing. The court shall

require notice of the motion to be made as provided by

the Rules of Civil Procedure. If the petitioner for the

original protection order or consent agreement has

requested that the petitioners address be kept

confidential, the court shall not disclose the address to

the respondent of the original protection order or

consent agreement or any other person, except as

otherwise required by law. The moving party has the

burden of proof to show, by a preponderance of the

evidence, that modification or termination of the

protection order or consent agreement is appropriate

because either the protection order or consent

agreement is no longer needed or because the terms of

the original protection order or consent agreement are

no longer appropriate.

-. (c) In considering whether to modify or terminate a

protection order or consent agreement issued or

approved under this section, the court shall consider

all relevant factors, including, but not limited to, the

following:

(i) Whether the petitioner consents to modification or |

termination of the protection order or consent |

agreement;

(ii) Whether the petitioner fears the respondent;

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(iii) The current nature of the relationship between the

petitioner and the respondent;

(iv) The circumstances of the petitioner and

respondent, including the relative proximity of the

petitioner's and _ respondent’s workplaces and

residences and whether the petitioner and respondent

have minor children together;

(v) Whether the respondent has complied with the

terms and conditions of the original protection order or

consent agreement;

(vi) Whether the respondent has a continuing

involvement with illegal drugs or alcohol;

(vii) Whether the respondent has been convicted of or

pleaded guilty to an offense of violence since the

issuance of the protection order or approval of the

consent agreement;

(viii) Whether any other protection orders, consent

agreements, restraining orders, or no contact orders

have been issued against the respondent pursuant to

this section, section 2919.26 of the Revised Code, any

other provision of state law, or the law of any other

state;

(ix) Whether the respondent has participated in any

domestic violence treatment, intervention program, or

other counseling addressing domestic violence and

whether the respondent has completed the treatment,

program, or counseling;

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(x) The time that has elapsed since the protection

order was issued or since the consent agreement was

approved;

(xi) The age and health of the respondent;

(xii) When the last incident of abuse, threat of harm,

or commission of a sexually oriented offense occurred

q or other relevant information concerning the safety

E and protection of the petitioner or other protected

parties.

a (d) If a protection order or consent agreement is

F modified or terminated as provided in division (E)(8) of _

this section, the court shall issue copies of the modified

or terminated order or agreement as provided in

division (F) of this section. A petitioner may also

provide notice of the modification or termination to the

judicial and law enforcement officials in any county :

other than the county in which the order or agreement :

is modified or terminated as provided in division (N) of

this section.

(e) If the respondent moves for modification or

termination of a protection order or consent agreement

pursuant to this section, the court may assess costs

against the respondent for the filing of the motion.

(F)(1) A copy of any protection order, or consent

agreement, that is issued, approved, modified, or

terminated under tis section shall be issued by the

; court to the petitioner, to the respondent, and to all

; law enforcement agencies that have jurisdiction to

enforce the order or agreement. The court shall direct

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that a copy of an order be delivered to the respondent

on the same day that the order is entered.

(2) Upon the issuance of a protection order or the

approval of a consent agreement under this section,

the court shal) provide the parties to the order or

agreement with the following notice orally or by form:

“NOTICE

As a result of this order or consent agreement, it may

be unlawful for you to possess or purchase a firearm,

including a rifle, pistol, or revolver, or ammunition

pursuant to federal law under 18 U.S.C. 922(g)(8). If

you have any questions whether this law makes it

illegal for you to possess or purchase a firearm or

ammunition, you should consult an attorney.”

(3) All law enforcement agencies shall establish and

maintain an index for the protection orders and the

approved consent agreements delivered to the agencies

pursuant to division (F)(1) of this section. With respect

to each order and consent agreement delivered, each

agency shall note on the index the date and time that

it received the order or consent agreement.

(4) Regardless of whether the petitioner has registered

the order or agreement in the county in which the

officer’s agency has jurisdiction pursuant to division

(N) of this section, any officer of a law enforcement

agency shall enforce a protection order issued or

consent agreement approved by any court in this state

in accordance with the provisions of the order or

agreement, including removing the respondent from

the premises, if appropriate.

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(G) Any proceeding under this section shall be

conducted in accordance with the Rules of Civil

Procedure, except that an order under this section may

be obtained with or without bond. An order issued

under this section, other than an ex parte order, that

grants a protection order or approves a consent

agreement, that refuses to grant a protection order or

approve a consent agreement that modifies or

terminates a protection order or consent agreement, or

that refuses to modify or terminate a protection order

or consent agreement, is a final, appealable order. The

remedies and procedures provided in this section are

in addition to, and not in lieu of, any other available

civil or criminal remedies.

(H) The filing of proceedings under this section does

not excuse a person from filing any report or giving

any notice required by section 2151.421 of the Revised

Code or by any other law. When a petition under this

section alleges domestic violence against minor

children, the court shall report the fact, or cause

reports to be made, to a county, township, or municipal

peace officer under section 2151.421 of the Revised

Code.

(1) Any law enforcement agency that investigates a

domestic dispute shall provide information to the

family or household members involved regarding the

relief available under this section and section 2919.26

of the Revised Code.

(J) Notwithstanding any provision of law to the

contrary and regardless of whether a protection order

is issued or a consent agreement is approved by a court

of another county or a court of another state, no court

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or unit of state or local government shall charge any

fee, cost, deposit, or money in connection with the

filing of a petition pursuant to this section or in

connection with the filing, issuance, registration, or

service of a protection order or consent agreement, or

for obtaining a certified copy of a protection order or

consent agreement.

(K)(1) The court shall comply with Chapters 3119.,

3121., 3123., and 3125. of the Revised Code when it

makes or modifies an order for child support under

this section.

(2) If any person required to pay child support under

an order made under this section on or after April 15,

1985, or modified under this section on or after

December 31, 1986, is found in contempt of court for

failure to make support payments under the order, the

court that makes the finding, in addition to any other

penalty or remedy imposed, shall assess all court costs

arising out of the contempt proceeding against the

person and require the person to pay any reasonable

attorney’s fees of any adverse party, as determined by

the court, that arose in relation to the act of contempt.

(L)(1) A person who violates a protection order issued

or a consent agreement approved under this section is

subject to the following sanctions:

(a) Criminal prosecution for a violation of section

2919.27 of the Revised Code, if the violation of the

protection order or consent agreement constitutes a

violation of that section;

(b) Punishment for contempt of court.

Tila

(2) The punishment of a person for contempt of court

for violation of a protection order issued or a consent

agreement approved under this section does not bar

criminal prosecution of the person for a violation of

section 2919.27 of the Revised Code. However, a

person punished fer contempt of court is entitled to

credit for the punishment imposed upon conviction of

a violation of that section, and a person convicted of a

violation of that section shall not subsequently be

punished for contempt of court arising out of the same

activity.

(M) In all stages of a proceeding under this section, a

petitioner may be accompanied by a victim advocate.

(N)(1) A petitioner who obtains a protection order or

consent agreement under this section or a temporary

protection order under section 2919.26 of the Revised

Code may provide notice of the issuance or approval of

the order or agreement to the judicial and law

enforcement officials in any county other than the

county in which the order is issued or the agreement

is approved by registering that order or agreement in

the other county pursuant to division (N)(2) of this

section and filing a copy of the registered order or

registered agreement with a law enforcement agency

in the other county in accordance with that division. A

person who obtains a protection order issued by a court

of another state may provide notice of the issuance of

the order to the judicial and law enforcement officials

in any county of this state by registering the order in

that county pursuant to section 2919.272 of the

Revised Code and filing a copy of the registered order

with a law enforcement agency in that county.

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(2) A petitioner may register a temporary protection

order, protection order, or consent agreement in a

county other than the county in which the court that

issued the order or approved the agreement is located

in the following manner:

(a) The petitioner shall obtain a certified copy of the

order or agreement from the clerk of the court that

issued the order or approved the agreement and

present that certified copy to the clerk of the court of

common pleas or the clerk of a municipal court or

county court in the county in which the order or

agreement is to be registered.

(b) Upon accepting the certified copy of the order or

agreement for registration, the clerk of the court of

common pleas, municipal court, or county court shall

place an endorsement of registration on the order or

agreement and give the petitioner a copy of the order

or agreement that bears that proof of registration.

(3) The clerk of each court of common pleas, the clerk

of each municipal court, and the clerk of each county

court shall maintain a registry of certified copies of

temporary protection orders, protection orders, or

consent agreements that have been issued or approved

by courts in other counties and that have been

registered with the clerk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.