Baker v. Carnine
| Decision Date | 17 August 2021 |
| Docket Number | 1:19-cv-0060 |
| Parties | DAVID ADAM BAKER, Plaintiff, v. JEFFREY CARNINE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
REPORT AND RECOMMENDATION
Plaintiff David Baker, proceeding pro se, brings this action alleging violations of his civil rights under 42 U.S.C. § 1983 and state claims under Ohio common law. (Doc. 18, Second Amended Complaint)[1]. Plaintiff brings claims against Jeffrey Carnine in his individual and official capacity for malicious prosecution under federal and state law (Count 1); civil conspiracy (Count 2); fabrication of evidence under federal and state law (Count 3); deprivation of liberty under federal and state law (Count 5); illegal seizure under federal and state law (Count 6); illegal search under federal and state law (Count 7); and intentional and negligent infliction of emotional distress (Counts 8 and 9).[2] Plaintiff also brings a municipal liability claim against defendant Carnine in his official capacity under state and federal law (Count 11).[3] This matter is before the Court on Carnine's motion for summary judgment (Doc. 55), plaintiff's response in opposition (Doc. 60), and defendant's reply (Doc. 63).
Defendant Carnine was an agent of the Hamilton County, Ohio Drug Abuse Reduction Taskforce (DART) during 2016.[4] (Carnine Aff Doc. 55-1 at PAGEID 305). In February 2016, Carnine was working in conjunction with other members of DART and confidential informants (CIs) to conduct investigations related to seizing narcotics and drug enforcement. (Id.). Plaintiff was the subject of a criminal investigation involving DART. (Id.). Carnine participated in an operation with DART and an unnamed CI on February 1, 2016 to negotiate the purchase of heroin from plaintiff. (Id.). According to defendant, the CI met with plaintiff at the McDonald's restaurant located at 7142 Reading Road, Cincinnati, Ohio 45237, which is located within 1000 feet of Woodward High School. (Id.). Defendant states the CI purchased a quantity of heroin from plaintiff with government funds. (Id.). Defendant further asserts that after the CI provided the heroin to DART agents, the agents conducted mobile surveillance of plaintiff with the assistance of the Cincinnati Police Department. (Id. at PAGEID 306). When shown a photograph of plaintiff, the CI identified plaintiff as the individual who had sold him the heroin. (Id.).
The heroin was tested by the Hamilton County Crime Laboratory. (Id.; Doc. 55-1, Exh. C at PAGEID 309). Testing confirmed that it weighed 1.996 + .0005 grams and that it contained both fentanyl and acetyl fentanyl. (Doc. 55-1, Exh. C at PAGEID 309).
On August 15, 2016, defendant Carnine presented an affidavit to the Hamilton County Municipal Court (Case Nos. C16A22114A, C16A22114B) in which he swore that “on or about the 1st day of February, 2016, at Hamilton County, Ohio, David BAKER, did**knowingly sell Fentanyl and Acetyl Fentanyl to an agent of DART during a narcotics investigation.” (Id., Exh. A at PAGEID 307). The affidavit listed the location of the offense as 7142 Reading Road, Cincinnati, Ohio 45237. (Id.). On August 16, 2016, the Hamilton County Municipal “Clerk or Deputy Clerk” completed a “Probable Cause Checklist” on which they indicated that Carnine's affidavit met the following requirements:
(Id., Exh. B at PAGEID 308, Case No. C/16/CRA/22114B). Hamilton County Municipal Court records show that warrants were issued for plaintiff's arrest on charges of Trafficking in Drugs in violation of Ohio Rev. Code § 2925.03 based on complaints filed by Carnine on August 16, 2016 in Case Nos. C/16/CRA/22114A/B.[5] Plaintiff was arrested on August 28, 2016 and bond was set on each charge.
On September 6, 2016, the Grand Jury returned an indictment against plaintiff on two counts of aggravated trafficking in drugs in violation of Ohio Rev. Code § 2925.03(A)(1) for the knowing sale or offer to sell a Schedule I controlled substance, acetyl fentanyl and fentanyl, on February 1, 2016 in the vicinity of a school or a juvenile. (Doc. 55-2 at PAGEID 312-13). The Prosecuting Attorney for the Court of Common Pleas subsequently requested that an arrest warrant be issued upon indictment. (Id. at PAGEID 311). Plaintiff was held in the Hamilton County Justice Center on the charges from December 7, 2016, until the Hamilton County Court of Common Pleas dismissed the charges against plaintiff for want of prosecution on January 25, 2018. (Doc. 64-1, Exh. B at PAGEID 408). Hamilton County Assistant Prosecutor Matthew Broo, who assisted in the prosecution of plaintiff, states that the Prosecutor's Office sought dismissal of the criminal case against plaintiff because audio evidence against him had been corrupted; it was impractical to transport the CI, who was incarcerated in the Ohio Department of Corrections during the prosecution of plaintiff, to Hamilton County; and other criminal charges were pending against plaintiff. (Matthew Broo Aff., Doc. 63-1 at PAGEID 390-91).
Plaintiff denies that he was at the McDonald's restaurant located at 7142 Reading Road, Cincinnati, Ohio 45237 on February 1, 2016. (Plaintiff's Aff., Doc. 60, Exh. C at PAGEID 349). Plaintiff also alleges on information and belief that, “Carnine misrepresented a civilian witness as a[n] agent of Dart inside of his affidavit for [plaintiff's] arrest, ” and Carnine never witnessed a transaction between plaintiff and the alleged CI. (Id. at PAGEID 350). Plaintiff asserts that prosecutors stated at discovery hearings held in February through June 2017 that they had a civilian witness who was identified as David Mosley, but they had no CI. (Id. at PAGEID 349). Plaintiff alleges that “the civilian witness David Mosley” was in the Hamilton County Justice Center on the day trial was scheduled to begin in January 2018 as a result of the State subpoenaing him from prison; however, prosecutors stated in court that same day that they could not find the CI and did not plan on pursuing him further.[6] (Id. at PAGEID 349-50).
Defendant Carnine moves for summary judgment on each of plaintiff's claims. Defendant argues that he is entitled to qualified immunity from liability and summary judgment as a matter of law on plaintiff's claims for malicious prosecution (Count 1), civil conspiracy (Count 2), and illegal search and seizure (Counts 6 and 7) because there was probable cause for plaintiff's arrest on August 30, 2016. (Doc. 55 at PAGEID 292-98). Defendant contends that plaintiff has not alleged a basis for his state law claims of negligent and intentional infliction of emotional distress (Counts 8 and 9). (Id. at PAGEID 298-302). Defendant also asserts that plaintiff's remaining claims (failure to intervene under federal and state law - Count 4; supervisory liability - Count 10; and malicious prosecution - Count 12) should all be dismissed because they do not mention Carnine. (Id.).
A motion for summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A fact is ‘material' only if its resolution will affect the outcome of the lawsuit.” Beans v. City of Massillon, No. 5:15-cv-1475, 2016 WL 7492503, at *5 (N.D. Ohio Dec. 30, 2016), aff'd, No. 17-3088, 2017 WL 3726755 (6th Cir. Aug. 29, 2017) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A grant of summary judgment is proper unless the nonmoving party “establish[es] genuinely disputed material facts by ‘citing to particular parts of materials in the record . . . or . . . showing that the materials cited do not establish the absence . . . of a genuine dispute.'” United Specialty Ins. Co. v. Cole's Place, Inc., 936 F.3d 386, 403 (6th Cir. 2019) (quoting Fed.R.Civ.P. 56(c)(1)). The materials a party can rely on to establish the absence of a genuine dispute include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, [and] interrogatory answers[.]” Fed.R.Civ.P. 56(c)(1)(A). The movant can carry its burden by showing that the non-moving party lacks evidence to support an essential element of its case. See Barnhart v. Pickrel, Shaeffer & Ebeling Co. L.P.A., 12 F.3d 1382, 1388-89 (6th Cir. 1993).
The party who seeks summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine...
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