Alexander v. Haymon, No. C-3-01-122.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtRice
Citation254 F.Supp.2d 820
PartiesPhilmore ALEXANDER, et al., Plaintiffs, v. Al HAYMON, et al., Defendants.
Docket NumberNo. C-3-01-122.
Decision Date14 January 2003
254 F.Supp.2d 820
Philmore ALEXANDER, et al., Plaintiffs,
v.
Al HAYMON, et al., Defendants.
No. C-3-01-122.
United States District Court, S.D. Ohio, Western Division.
January 14, 2003.

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James R Greene, III, James R Greene III & Associates, Carol Jacobi Holm, Dayton, OH, for Philmore Alexander, Herbert C Hines, Jr, Carnetta Vines and Edward J Vines.

Matthew D Stokely, Jonathan Bernard Freeman, Altick & Corwin, Dayton, OH, for Al Haymon.

Jeffrey Charles Turner, Surdyk Dowd & Turner Co LPA, Dayton, OH, for Lee Cyr, G R Mader, and Greg Nmi Baker.

Terence Leslie Fague, Coolidge Wall Wonsley & Lombard, Dayton, OH, for Daniel Shuman.

EXPANDED OPINION SUSTAINING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT HAYMON (DOC. #25), SUSTAINING MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS CYR, MADER AND BAKER (DOC. #26), SUSTAINING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT SHUMAN (DOC. # 28) AND OVERRULING, AS MOOT, PLAINTIFFS' MOTION FOR LEAVE TO AMEND COMPLAINT (DOC. #32), PLAINTIFFS' MOTION TO STRIKE DEFENDANT SHUMAN'S EXPERT WITNESS AFFIDAVIT AND REPORT (DOC. # 50), DEFENDANTS' MOTIONS TO STRIKE EXPERT WITNESS REPORTS AND PREVENT PLAINTIFFS' WITNESSES FROM TESTIFYING AT TRIAL (DOC. # s 53 & 57) AND PLAINTIFFS' MOTIONS TO STRIKE DEFENDANTS' MOTIONS TO STRIKE (DOC. # s 58 & 59); DEFENDANT SHUMAN DIRECTED TO FILE, WITHIN 10 DAYS FROM DATE, A MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO PLAINTIFFS' SECOND CAUSE OF ACTION; THIS IS NOT A FINAL APPEALABLE ORDER

RICE, Chief Judge.


This civil action arises from an alleged wrongful police stop. Plaintiffs are Philmore Alexander, Javona Alexander,1 LaKiesha Alexander,2 LaQuita Alexander,3 Herbert C. Hines, Jr., Tammy Hines, Tanisha Hines, Carnitta Vines,4 and Edward J. Vines. Defendants are Al Haymon, Lee Cyr, G.R. Mader, Greg Baker, and Daniel Shuman. Defendants Cyr and Mader were, at the time of the events giving rise to this litigation, police officers with the City of Fairborn, and Defendant Baker

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was a sergeant. Defendant Shuman was also a police officer at the time, with the Wright State University ("WSU") Department of Public Safety.5 In their Complaint (Doc. #1), the Plaintiffs set forth three causes of action, though only one is clearly stated: 1) violations of their rights guaranteed by the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, actionable under 42 U.S.C. §§ 1983, 1985 & 1988 (First Cause of Action); 2) as discussed below, the Second Cause of Action is indecipherable; and 3) assault, and/or violations of their constitutional rights, in particular that of the right to due process (Third Cause of Action). Presently before the Court are the Motions for Summary Judgment of Haymon (Doc. # 25), Officers Cyr and Mader, and Sgt. Baker (Doc. #26), and Officer Shuman (Doc. # 28). The Court shall sustain these motions for the reasons set forth herein. A number of other motions have also been filed with the Court, which it shall overrule, as moot.6

I. Background Facts7

Philmore Alexander and Herbert Hines, both adults, are cousins. (H.C. Hines Depo. at 42.) Philmore Alexander is the father of Javona, LaKeisha, and LaQuita Alexander. (Philmore Alexander Depo. at 6.) Herbert Hines is the father of Tammy and Tanisha Hines. (H.C. Hines Depo. at 33.) Edward J. Vines is the father of Carnitta Vines. (Carnitta Vines Depo. at 7.) On the night of March 1, 2000, the Plaintiffs, with the exception of Edward J. Vines,8 attended a rap music concert at the WSU Ervin J. Nutter Center ("Nutter Center"). (Philmore Alexander Depo. at 31, 37.) They rode in a Chevrolet Suburban. (Id. at 33.) The driver and passenger side windows of the Suburban had a custom tint to them, and the side-panel and back windows had a darker factory tint. (Id. at 38-41.) At the time, Javona Alexander was 16 years old (Javona Alexander Depo. at 6), LaKiesha Alexander was 13 (LaKiesha Turner Depo. at 7),9 LaQuita Alexander was about 10 (Philmore Alexander Depo. at 6), Tammy Hines was about 9 (H.C. Hines Depo. at 33), Tanisha Hines was 7 or 8 (Tanisha Hines Depo. at 6),10 and Carnitta Vines was 19. (Carnitta Vines Depo. at 6.)

The concert was promoted and produced by Al Haymon, dba Haymon Entertainment ("Haymon"). (Doc. #25 at Ex. 1 ("Lease Agreement"); Compl. 18.) The Nutter Center, as the lessor of its arena, agreed to provide "building security" for the event. (Lease Agreement ¶ 4.) Although responsible for providing separate security for the musicians, to the extent they required any, Haymon was not authorized to hire any other security personnel except through the Nutter Center. (Id.) As the lessee of the Nutter Center, Hay

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mon agreed to "indemnify, defend and hold harmless Lessor, including its officers, employees, students and trustees, from any and all claims for personal injuries or property damage resulting from the negligence or malfeasance of Lessee, its employees, licenses [sic], or agents of the Arena used by Lessee hereunder," and also agreed that he would be "solely responsible for the safety and welfare of [his] employees, licensees, agents and the attending public." (Id. II 12(b) & (c).)

That night, Sgt. Baker and Officers Mader and Cyr were working overtime, or "extra-duty" as they refer to it, in their official police capacities, patrolling the outside grounds of the Nutter Center. (Baker Aff., Doc. # 26 at Ex. A, H 3; Mader Aff., Doc. # 26 at Ex. B, IF 3; Cyr Aff., Doc. # 26 at Ex. C, H 3; Barlow Depo. at 86.) Officer Shuman was also working overtime. (Shuman Depo. at 50-51.) A separate, private security force was hired to keep the peace inside the Nutter Center. (Barlow Depo. at 22.) Officers Cyr and Shuman were paired to form an "arrest team," which meant that they were to man a Fairborn Police Department transport van for purposes of transporting any arrestees. (Shuman Depo. at 34-35, 40, 75, 128 & Ex. 7; Cyr Aff. H 6.) The Fairborn police officers had been forewarned that evening that weapons possession on the part of concert goers might be a problem. (Baker Aff. f 4; Mader Aff. f 4; Cyr Aff. 14.)

Inside the Nutter Center, several "opening" bands played their sets, but later in the evening, after the crowd had been waiting about 40 minutes for the headlining band to come on stage, word circulated that they were cancelling their appearance. (Philmore Alexander Depo. at 42.) When this word reached the Plaintiffs, they sensed the crowd growing restless and possibly dangerous, and decided to leave. (Id at 42-43.) Once outside the arena, in the parking lot, Philmore Alexander observed a large police presence patrolling the venue grounds. (Id. at 47.) In fact, a fight had broken out outside the gate through which the Plaintiffs had exited the arena, Gate 2, to which several officers were responding. (Id. at 46-47; H.C. Hines Depo. at 62-67; Tanisha Hines Depo. at 11-13; Carnitta Vines Depo. at 68-75; LaKeisha Turner Depo. at 28.) Tanisha Hines remembers one of the youths involved in the melee state that somebody in the Plaintiffs' party had a gun. (Tanisha Hines Depo. at 12-13 & 15.)

When they got into the Suburban to leave, Philmore Alexander was in the passenger seat, Herbert Hines was driving, and the children were in the back seats. (Philmore Alexander Depo. at 48.) As they were about to leave, Tanisha Hines heard a boy who had been detained by the police state that there was a gun inside the Plaintiffs' Suburban. (Tanisha Hines Depo. at 16.) Proceeding slowly through the parking lot, they at one point came to within about 20 feet of a man being apprehended by several police officers. (Philmore Alexander Depo. at 49.)

After the Plaintiffs made several turns in the parking lot as they meandered toward the exit, Officers Cyr and Shuman, who had been following their Suburban in the police transport van, suddenly turned on their emergency lights and stopped them. (Id. at 51-53; H.C. Hines Depo. at 69-72; Cyr Aff. f 7; Shuman Depo. at 87-89.) Another police vehicle blocked the Plaintiffs' passage in front. (Philmore Alexander Depo. at 53.) A third police vehicle also arrived and blocked their passage in front. (H.C. Hines Depo. at 75 & Ex. 2.) Officers Cyr and Shuman initiated the stop after receiving word from Officer Mader, over police radio, that the Plaintiffs' Suburban had weapons inside of it.

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(Shuman Depo. at 85-88, 95 & Ex. 10; Mader Aff. 1117; Cyr Aff. 118.) Officer Mader, for his part, had received the information about the alleged weapons inside the Suburban from Sgt. Baker. (Baker Aff. 16; Mader Aff. 19.)11 He also received an independent tip that weapons were inside the Suburban from an individual by the name of Dartagnan Hill, whom he and his security team partner, Fairborn Police Officer Doug Collie, had identified and were in the process of questioning for other reasons as the Suburban drove past them. (Mader Aff. 11117, 8 & 13.) Finally, for his part, Sgt. Baker had gotten his information about the alleged weapons inside the Suburban from two individuals who had been detained (but not identified) by WSU Department of Public Safety police officers for their involvement in the fight which had taken place outside of Gate 2. (Baker Aff. HI 9-11.)

Because of the report of weapons, Officers Cyr and Shuman conducted what they term a "felony traffic stop." (Cyr Aff. 1114; Shuman Depo. at 130-131.) The stop was not based on any observed violation of traffic laws, and they did not call in the license plate number to their dispatch to have it checked. (Shuman Depo. at 99.) Communicating in loud voices and perhaps even through a bullhorn, they commanded the Plaintiffs to stick their hands out of the windows. (Philmore Alexander Depo. at 53; H.C. Hines Depo. at 75; Shuman Depo. at 89-91.) Officer Cyr was shouting at the Plaintiffs from his position on the rear, driver's side of the Suburban, while...

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8 practice notes
  • Arbuckle v. City of Chattanooga, No. 1:07-cv-40.
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • March 8, 2010
    ..."`creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.'" Alexander v. Haymon, 254 F.Supp.2d 820, 830 (S.D.Ohio 2003) (quoting Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000)). Plaintiff alleges that the Defendants violated her......
  • Condiff v. Hart County Sch. Dist., Civil Action No. 1:09CV–00013–JHM.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • January 27, 2011
    ...“creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.” Alexander v. Haymon, 254 F.Supp.2d 820, 830 (S.D.Ohio 2003) (quoting Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000)) (internal marks omitted). At issue here are Condiff's......
  • Mullins ex rel. Mullins v. Cyranek, CASE NO.: 1:12CV384
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 21, 2014
    ...1, p. 12). 11. An officer may develop a reasonable suspicion based on information received from fellow officers. Alexander v. Hayman, 254 F. Supp. 2d 820, 833-34 (S.D. Ohio 2003) (citing Houston v. Doe, 174 F.3d 809, 814 (6th Cir. 1999); McPherson v. Kelsey, 125 F.3d 989, 993-94 (6th Cir. 1......
  • Patterson v. City of Earlington, Civil Action No. 4:07-CV-52-M.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • August 20, 2009
    ..."creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere." Alexander v. Haymon, 254 F.Supp.2d 820, 830 (S.D.Ohio 2003) (quoting Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000)) (internal marks omitted)). At issue here are Patterso......
  • Request a trial to view additional results
8 cases
  • Arbuckle v. City of Chattanooga, No. 1:07-cv-40.
    • United States
    • U.S. District Court — Eastern District of Tennessee
    • March 8, 2010
    ..."`creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.'" Alexander v. Haymon, 254 F.Supp.2d 820, 830 (S.D.Ohio 2003) (quoting Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000)). Plaintiff alleges that the Defendants violated her......
  • Condiff v. Hart County Sch. Dist., Civil Action No. 1:09CV–00013–JHM.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • January 27, 2011
    ...“creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere.” Alexander v. Haymon, 254 F.Supp.2d 820, 830 (S.D.Ohio 2003) (quoting Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000)) (internal marks omitted). At issue here are Condiff's......
  • Mullins ex rel. Mullins v. Cyranek, CASE NO.: 1:12CV384
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 21, 2014
    ...1, p. 12). 11. An officer may develop a reasonable suspicion based on information received from fellow officers. Alexander v. Hayman, 254 F. Supp. 2d 820, 833-34 (S.D. Ohio 2003) (citing Houston v. Doe, 174 F.3d 809, 814 (6th Cir. 1999); McPherson v. Kelsey, 125 F.3d 989, 993-94 (6th Cir. 1......
  • Patterson v. City of Earlington, Civil Action No. 4:07-CV-52-M.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • August 20, 2009
    ..."creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere." Alexander v. Haymon, 254 F.Supp.2d 820, 830 (S.D.Ohio 2003) (quoting Gardenhire v. Schubert, 205 F.3d 303, 310 (6th Cir.2000)) (internal marks omitted)). At issue here are Patterso......
  • Request a trial to view additional results

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