Chiaverini v. City of Napoleon

• Docket Number: 3:17-cv-2527
• Decision Date: 30 September 2021
• Parties: Jascha Chiaverini, et al., Plaintiffs, v. City of Napoleon, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

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Jascha Chiaverini, et al., Plaintiffs, v. City of Napoleon, et al., Defendants.

No. 3:17-cv-2527

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

September 30, 2021

MEMORANDUM OPINION AND ORDER

Jeffrey J. Helmick United States District Judge

I. Introduction

On November 16, 2017, Plaintiffs Jascha Chiaverini and Chiaverini, Inc. filed a Complaint in the Henry County, Ohio Court of Common Pleas. (Doc. No. 1-1). Defendants City of Napoleon, Nicholas Evanoff, David Steward, Jamie Mendez, and Robert Weitzel (collectively, “City Defendants”) removed the matter to this court based on federal question jurisdiction because Plaintiffs' Complaint alleged, among others, constitutional violations under 42 U.S.C. § 1983. (Doc.No. 1).^[1] On January 23, 2020, the City Defendants filed a motion for summary judgment, (Doc. Nos. 96 & 97), Plaintiffs opposed the motion, (Doc. No. 102), and the City Defendants replied. (Doc. No. 107). Plaintiffs moved to file a surreply, attaching their proposed surreply brief, (Doc. Nos. 110 & 110-1), the City Defendants filed an opposition, (Doc. No. 112), and Plaintiffs replied. (Doc. No. 126).

After reviewing Plaintiffs' motion for leave and the proposed brief, I find Plaintiffs have failed to justify the need for a surreply beyond “[the] party's mere desire to make new arguments, rather than respond to new arguments improperly raised in a reply.” Chartis Specialty Ins. Co. v. Lubrizol Corp., No. 1:11 CV 369, 2013 WL 12130642, at *4 (N.D. Ohio Mar. 29, 2013). Each of Plaintiffs' proposed arguments seeks to re-hash theories or facts which the City Defendants have consistently raised throughout the summary judgment briefing. See Baran v. Med. Device Techs., Inc., 666 F.Supp.2d 776, 778 n.2 (N.D. Ohio 2009) (stating “the purpose of a sur-reply is not to permit re-argument after additional reflection.”). I deny Plaintiffs' motion for leave to file a surreply, (Doc. No. 110), because it does not address “new submissions and/or arguments” from the reply brief. Key v. Shelby Cnty., 551 Fed.Appx. 262, 265 (6th Cir. 2014); see also First Tech. Cap., Inc. v. BancTec, Inc., No. 5:16-CV-138, 2017 WL 2734716, at *1 (E.D. Ky. June 26, 2017) (“Overall, though, ‘[w]hether to permit a party to file a surreply is a matter left to the trial court's discretion.'”) (citation omitted) (alteration in original).

II. Background

Plaintiff Jascha Chiaverini is the manager at the Diamond and Gold Outlet, a retail jewelry store located in Napoleon, Ohio. (Doc. No. 1-1 at 4). The Diamond and Gold Outlet is owned by Chiaverini, Inc., an Ohio corporation. (Id.). Defendants Evanoff, Steward, and Mendez are City of Napoleon police officers. (Id.). Defendant Weitzel was employed as the Chief of Police for the City of Napoleon. (Id.).

On November 16, 2016, while working at the Diamond and Gold Outlet, Jascha purchased a men's ring and a diamond earring from Brent Burns, the purported owner, for $45.^[2] (Id. At 5-6). Jascha completed a “buy card, ”^[3] copied Brent's driver's license, and photographed the ring and earring. (Id. at 6). Later that day, David and Christina Hill contacted the Diamond and Gold Outlet multiple times regarding a ring they claimed was stolen. (Id.; Doc. No. 97-1 at 1). Jascha advised David to make a police report but he allegedly refused. (Doc. No. 1-1 at 6). To resolve the situation, both the Hills and Jascha called the Napoleon Police Department. (Id.; Doc. No. 97-1 at 1). The relevant portion of an audio recording of Jascha's conversation with the 911 dispatcher was as follows:

Chiaverini: There's going to be a man calling you making a police report on some jewelry. Okay?

Dispatcher: Okay.

Chiaverini: And I'm saying this. I believe - and I'm not going to talk to him and I'm not going to get into a pissing battle with the victim or something here. But I believe I may have his property. Okay?

Dispatcher: Okay.

Chiaverini: But I'm just trying to be cooperative. But he says I'm coming to your store with the police. And I said, sir, you don't come up to my store with the police. Please let them do their job.

***

Chiaverini: Well, I'm just telling you that - I'm not saying that I have it or I don't, but I want an officer to come and talk to me. Not the damn victim. I know I'm not playing that game because people get mad at me.

(Doc. No. 102-9). Officers Evanoff and Steward responded to the call. (Doc. No. 1-1 at 6).

Once present, Officer Steward remained with David who provided a description of the items and advised that Brent had stolen the items from his home earlier in the week. (Doc. Nos. 102-3 & 102-8). Officer Evanoff, meanwhile, spoke with Jascha, who reported Brent often sold fake jewelry but that today, Brent had stated he had real jewelry to sell. (Id.). Jascha provided the “buy card” and photographs of the items to the police. (Id.). Officer Evanoff then instructed Jascha not to sell the items as they had been confirmed as stolen. (Id.).

Officer Steward authored the narrative supplement regarding this incident on November 16, 2016. (Doc. No. 102-8; Doc. No. 88 at 38). Officer Steward later updated this narrative supplement to include a statement by Jascha to Officer Evanoff “that the reason he bought the ring and kept records regarding the purchase, was because he suspected that it was in fact stolen.” (Doc. No. 102-3; compare Doc. No. 102-3 with Doc. No. 102-8). But Jascha denies ever saying this. (Doc. No. 42-8 at 60-61; Doc. No. 102-17 at 1-2).

Officer Steward justified omitting the statement from the original narrative because he did not believe it to be relevant to the theft investigation involving Brent. (Doc. No. 88 at 83). Plaintiffs allege Officers Evanoff and Steward improperly altered the police report to include this falsified statement. (See Doc. No. 102 at 11).

The next day, the Napoleon Police Department issued a “hold letter”^[4] to the Diamond and Gold Outlet signed by Officer Steward and Chief Weitzel stating that the ring and earring were stolen. (Doc. No. 102-4). The letter went on to state:

I am formally requesting that you hold this item as in ORC 4727.12 states [sic], as evidence of the crime of Theft.

Please accept this letter as the official request for retaining the items that are confirmed to be stolen and the rightful owner being David Hill, 413 Rohrs St., in Napoleon, Ohio 43545. Please release these items to David or Christina Hill.

(Id.).

That same day, Christina came to the Diamond and Gold Outlet to request the return of the items, but Jascha refused allegedly based on the directives in the “hold letter”. (Doc. No. 1-1 at 7). The police were again called out to the store. (Id. at 8).

In his report of the incident, Officer Steward stated Jascha refused to relinquish the items to Christina because they were “his property” and he was within his rights to “put that ring in his crucible and [take] a torch to it.” (Doc. No. 92-6 at 1). He also reported Jascha's rationale for not returning the items was because of David's poor behavior the previous day. (Id.). While Jascha does not dispute making these statements in some manner, (see Doc. No. 98 at 185, 187), he testified that his refusal to return the items was based on the statutory language and advice of counsel. (Id. at 192).

On November 19, 2016, Jascha confronted Chief Weitzel outside the police station about the “hold letter” and what he perceived to be its contradictory directives. (Id. at 200). Chief Weitzel recalled Jascha stating that he was not required to comply with the “hold letter” but did not know the basis for Jascha's stance as he had always complied in the past. (Doc. No. 93 at 87, 103). During this conversation, Jascha alluded that he did not have a precious metal dealer license. (Id.). Jascha also confirmed to Chief Weitzel that he would not release the items to the Hills. (Doc. No. 98 at 201-02).

Following this conversation, Chief Weitzel reviewed the Ohio Department of Commerce website and discovered the precious metal dealer license previously issued to the Diamond and Gold Outlet had been cancelled. (Doc. No. 93 at 88, 112). He next instructed his officers to begin an investigation. (Id. at 112). Officer Evanoff verified that Diamond and Gold Outlet's precious metal dealer license was cancelled on June 30, 2013. (Doc. No. 93-12 at 10).

On November 30, 2016, Officer Steward sent an e-mail to the City of Napoleon Law Director with all the relevant police reports, including both the original and updated narrative report. (Doc. No. 92 at 23; Doc. No. 92-3). Plaintiffs allege that the officers did not disclose the alterations to the police report to the City Law Director at the time. (Doc. No. 102 at 12). Thereafter, the City Law Director provided template documents, including a draft search warrant, for the investigating officers to complete; these documents identified the potential criminal offenses. (Doc. No. 92 at 24-25; Doc. No. 92-1). After the officers completed the documents, the drafts were reviewed by the City Law Director and a Henry County Prosecutor. (Doc. No. 92-1 at 30).

Meanwhile, Christina had contacted an assistant prosecuting attorney with the City of Napoleon for help in getting the jewelry back. (Doc. No. 87 at 4-5). After consulting with Officers Evanoff and Steward, the attorney recommended Jascha be treated as a “co-victim” to ensure he did not financially suffer from this incident.^[5] (Id. at 7). When presented with the “co-victim” option on November 23, 2016 by Officers Evanoff and Steward, Jascha requested the advice of the Diamond and Gold Outlet's attorney, George Rogers. (Doc. No. 1-1 at 8).

On December 2, 2016, Officer Evanoff applied for, and was granted, a search warrant for the Diamond and Gold Outlet by the Napoleon Municipal Court. (Doc. ...