712 F.Supp. 639 (S.D.Ohio 1988), C-3-87-532, Fenstermaker v. City of Dayton, Ohio

Docket NºC-3-87-532.
Citation712 F.Supp. 639
Party NameShirley FENSTERMAKER, Plaintiff, v. The CITY OF DAYTON, OHIO, et al., Defendants.
Case DateAugust 17, 1988
CourtUnited States District Courts, 6th Circuit, Southern District of Ohio

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712 F.Supp. 639 (S.D.Ohio 1988)

Shirley FENSTERMAKER, Plaintiff,

v.

The CITY OF DAYTON, OHIO, et al., Defendants.

No. C-3-87-532.

United States District Court, S.D. Ohio, Western Division.

Aug. 17, 1988

Matthew J. Crehan, David H. Landis, Hamilton, Ohio, for plaintiff.

Shirley Fenstermaker, Dayton, Ohio, pro se.

Neil F. Freund, Jane M. Lynch, Dayton, Ohio, for defendants.

DECISION AND ENTRY SUSTAINING MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS CARLENE NAVARRE, CAROL PAULEY, BARBARA BENT AND THE CITY OF DAYTON FOR SUMMARY JUDGMENT (DOC. # 6); JUDGMENT TO BE ENTERED FOR SAID DEFENDANTS AND AGAINST THE PLAINTIFF; DECISION AND ENTRY DISMISSING, SUA SPONTE, THE POLICE DEPARTMENT OF THE CITY OF DAYTON AS A PARTY DEFENDANT FOR THE REASON THAT SAID DEFENDANT IS NOT A SUABLE ENTITY; TERMINATION ENTRY

RICE, District Judge.

The captioned cause came on to be heard upon the Motion of the Defendants, City of Dayton, the Police Department of the City of Dayton, Officer Carlene Navarre and Officer Carol Pauley, seeking an Order of the Court granting summary judgment in their favor and against the Plaintiff (Doc. # 6). 1 Based upon the reasoning and citations

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of authority set forth below, this Court (1) sustains the aforementioned motion as it applies to Carlene Navarre, Carol Pauley, Barbara Bent and the City of Dayton; and (2) dismisses, sua sponte the Police Department of the City of Dayton as a party Defendant, for the reason that said Defendant is not a suable entity.

1. The Plaintiff has filed a Complaint containing five claims for relief, to wit:

a. a federal claim for relief, under 42 U.S.C. § 1983, contending that she was deprived of her constitutional right to be free from false arrest, by the Defendant police officers acting under color of law;

b. a claim for municipal liability, under both state and federal law, against the City of Dayton;

c. a claim for false arrest under state law;

d. a state law claim for intentional infliction of serious emotional distress; and

e. a state law claim for the negligent infliction of severe emotional distress.

2. The three police officers--Navarre, Pauley and Bent--are sued in their official capacities, as employees of the City of Dayton, acting within the scope and course of their employment at all times pertinent to this case. (Doc. # 1, Complaint, ¶ 3).

3. The Defendant police officers base their claim to summary judgment upon the doctrine of qualified or good-faith immunity. (Doc. # 6, p 5) The doctrine of qualified immunity was set forth in the seminal opinion of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1980) as follows: "Government officials performing discretionary functions generally are shielded 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." Id. at 818, 102 S.Ct. at 2738. The doctrine has been further developed in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), (involving law enforcement officials) and, most recently, in Poe v. Haydon, 853 F.2d 418, (6th Cir.1988), (an action under 42 U.S.C. § 1983).

4. The Plaintiff, in opposing the Defendant police officers' Motion for Summary Judgment, contends that summary judgment cannot be granted to Defendant police officers on the doctrine of qualified immunity because: (1) there are genuine issues of material fact on whether there was probable cause for the Defendants to have made the warrantless arrest of the Plaintiff in her home (Doc. # 13) and (2) there is a clearly established right under Ohio statutory law and the fourth amendment to the United States Constitution to be free from warrantless arrests without probable cause, a right which Plaintiff claims was violated by the Defendant officers, thus making it legally impossible for them to claim the benefit of the defense of qualified immunity.

5. Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

In cases in which facts are disputed, "credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). "[T]he

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mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Id. at 247-48, 106 S.Ct. at 2509-10.

6. Adopting as true the facts as set forth by Plaintiff in her affidavit (Doc. # 13, Exhibit 1) and construing those facts and every reasonable inference to be drawn therefrom in her favor, see Liberty Lobby at 255, 106 S.Ct. at 2514, the Court deems the following to be the material facts pertinent to the issues formed by the Defendants' Motion for Summary Judgment:

a. The Plaintiff was visited by one Kathy Smith, a former tenant, who wished to pick up her welfare check which had been directed to her former address, an apartment owned by the Plaintiff.

b. The Plaintiff explained to Kathy Smith that she had attempted to reach her by telephone and, that having proved futile, she (the Plaintiff) put the check, unopened, into a mailbox, after first writing on the envelope: "No longer at that address."

c. Although the Plaintiff told Kathy Smith on several occasions that she no longer had the check, Kathy Smith was unwilling to accept that explanation and when she refused to leave the Plaintiff's premises, the Plaintiff called the Dayton Police Department to seek its assistance in forcing Kathy Smith to leave.

d. The Plaintiff told Officers Navarre and Pauley, upon their arriving at her home, that she no longer had Kathy Smith's welfare check. The Plaintiff never, in any fashion, indicated to either Kathy Smith or to the officers that she still had the check in her possession.

e. Kathy Smith told Officers Navarre and Pauley that she had seen the welfare check on the Plaintiff's desk. Although that desk and the papers thereon were in plain view, so that presumably the officers could verify Kathy Smith's story of having seen the check, neither Officers Navarre and Pauley nor Sgt. Bent, who arrived at the scene a few moments thereafter, ever asked to examine the desk or the papers thereon.

f. The police asked Kathy Smith what she wanted; she responded that she wanted her check. Kathy Smith ultimately told the officers that she wished to file charges against the Plaintiff. The Plaintiff was then handcuffed, taken to the police station and told that she was being charged with the felony of grand theft.

7. In addition to the foregoing (the Plaintiff's version of the facts, construed most strongly in her favor and giving her the benefit of every reasonable inference to be drawn therefrom), this Court takes judicial notice of the fact that Ohio Rev.Code Ann. § 2913.71(B) makes it a felony of the fourth degree for any one to obtain or exert control over a check belonging to another without that other's consent.

8. In arguing that Defendants herein are not entitled to claim the defense of qualified immunity while there remains some dispute as to the facts underlying the validity of the arrest, the Plaintiff misconstrues the standard for determining the availability of qualified immunity. The focus is not on whether, after a final determination of the facts, the Court could conclude that a constitutional violation had taken place, but rather, "the trial court in a case like this one must decide whether--if plaintiff[ ] [is] able to prove all of [her] allegations--the defendants' conduct violated a clearly established right of the plaintiff[ ]. The question before the court, therefore, is essentially a legal question." Walker v. Schaeffer, 854 F.2d 138, 141 (6th Cir.1988).

The Sixth Circuit has recently re-emphasized the Supreme Court's determination that "qualified immunity is not simply a defense to liability on the merits, but is in fact...

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