Collins v. Clancy, Case No. 1:12-cv-152-HJW

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtHerman J. Weber
PartiesTIMOTHY COLLINS, Plaintiff, v. PATRICIA M. CLANCY, et al, Defendants
Docket NumberCase No. 1:12-cv-152-HJW
Decision Date23 April 2014

PATRICIA M. CLANCY, et al, Defendants

Case No. 1:12-cv-152-HJW


Dated: April 23, 2014


Pending are the "Motion for Summary Judgment" (doc. no. 86) by defendant Donna (Hyden) Kauffung and the "Motion for Summary Judgment" (doc. no. 85) by the defendant City of Cincinnati, Officer Patrice Brooks, and Sgt. Denica Gilmer.1 The Magistrate Judge entered a Report and Recommendation (doc. no. 106), recommending that both motions be granted. Plaintiff filed objections, defendants responded, and plaintiff replied (doc. nos. 110, 112, 113). Upon de novo review, and having fully considered the briefs, exhibits, recommendations, objections, and applicable authority, the Court agrees with the Magistrate Judge. The Court will therefore overrule the objections and grant summary judgment in favor of the defendants for the following reasons:

I. Background

The Magistrate Judge has fully recited the relevant facts in the Report and

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Recommendation (doc. no. 106), which is incorporated herein by reference. To summarize, on February 20, 2009 Donna Hyden sought a temporary civil protection order ("CPO") against Timothy Collins for stalking her after their relationship ended in 2007. After their break-up, she eventually married someone else and changed her last name to Kauffung. Her petition for a CPO indicated that Collins had been harassing her and refusing to leave her alone (i.e., by making repeated phone calls, sending letters, coming by her residence, banging on her door, showing up at her children's places of employment, and waiting for her in the early a.m. at her bus stop). She indicated Collins had recently become more aggressive in pursuing her and that this was causing her to "feel very uneasy and it's scaring me" (doc. no. 77-1 at 85). The CPO form provides that pursuant to Ohio R.C. § 2903.211(A)(1) ("Menacing by Stalking"), "[n]o person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person" (Id. at 83).2

In state court, Magistrate Bachman held a full hearing on March 6, 2009, with the pro se parties both present. The evidence (described as "overwhelming")

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reflected that Collins would not stop bothering Kauffung. Mag. Bachman found that "despite clear and unambiguous requests by petitioner, her husband and police, [Collins] has engaged in a pattern of conduct including calls, cards, and in person visits, all of which have caused her mental distress and has made her fear for her safety." In fact, Collins even inappropriately brought flowers for Kauffung to the hearing.

Mag. Bachman issued a temporary CPO and ordered Collins: "You shall not initiate or have any contact with her at her residence, business, place of employment. Contact includes, but is not limited to, telephone, fax, e-mail, voice mail, delivery service, writing, text message, communication by any means. Is that clear, sir?" Collins responded affirmatively. On March 11, 2009, the order was adopted by the Hamilton County Court of Common Pleas, which issued a permanent CPO directing Collins not to have any contact with Kauffung for five years (i.e. until February 19, 2014). Specifically, the permanent CPO provided:

RESPONDENT SHALL NOT INITIATE OR HAVE ANY CONTACT with the protected persons named in this order at their residences, businesses, places of employment, schools, daycare centers, or childcare providers. Contact includes, but is not limited to, telephone, fax, e-mail, voice mail, delivery service, writings, or communications by any other means in person or through another person. Respondent may not violate this order even with the permission of a protected person.

(doc. no. 77-1 at 88, copy of "Civil Stalking Protection Order" signed by Judge Ralph Winkler, entered March 11, 2009). A copy of the CPO was served on Collins. Although Collins had acknowledged at the hearing that Kauffung was "a person of honor" and that "all of these complaints that she voices here I believe to be true

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and accurate" (doc. no. 77, Ex. 15 at 36), he then handwrote seven pages of objections describing her testimony as "slanderous" and "perjured." He objected to any implication that he had "threatened" her and insisted that he had only approached and tried to talk to her at a bus-stop because he wanted to give her an engagement ring, even though she told him repeatedly to leave her alone.3 Collins filed his objections with the Hamilton County Clerk of Courts on March 26, 2009.

Without consulting a lawyer or requesting service by the Clerk of Courts, Collins also addressed an envelope to Kauffung, handwrote his return address on it, and mailed a copy of the objections to Kauffung at her residence. He could have asked the Hamilton County Clerk to serve the objections, but admittedly did not do so (Collins Dep. at 225-26; doc. no. 71-1, pre-printed court form for "Written Requests for Service," including in "domestic" cases). After Kauffung received this hand-written envelope from Collins on March 27, 2009, she took it to the police station (District Three), indicating her belief that Collins had thereby violated the CPO's express prohibition against initiating "ANY CONTACT" with her.

Police Officer Patrice Brooks was on duty and spoke with Kauffung, who showed her the handwritten envelope with Collins' return address on it. Kauffung told the officer she recognized Collins' hand-writing. Officer Brooks indicates that

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the handwritten pages did not look like a court document (Brooks Dep. at 160). Officer Brooks then confirmed that an anti-stalking CPO was in place against Collins. Kauffung signed an affidavit attesting that Collins had contacted her by mail. The supervisor on duty, Sgt. Gilmer, notarized the affidavit. The police filled out a criminal complaint form, which Kauffung signed (doc. no. 72-3 at 36, "Complaint"). Such documentation indicated that "known suspect violated protection order by sending a letter via US Postal Service" and that "Suspect contact's [sic] victim via US Postal Service in the form of a letter. Which is in violation of Protection Order set in place by Judge Winkler ref Case #sk0900129, PO called Clerk's office to confirm" (doc. no. 75-1 at 8, 10). The police filed the complaint and affidavit with the Hamilton County Clerk of Courts, which issued a warrant for Collins' arrest for violation of Ohio R.C. § 2919.27 (entitled "Violating . . . Anti-Stalking Protection Order"). Ohio R.C. § 2919.27 (A)(2) provides that: "No person shall recklessly violate . . . a protection order issued pursuant to . . . section 2903.14 of the Revised Code."

When Collins learned of the arrest warrant, he retained counsel (Mr. Charles McFarland), but did not surrender to police. He later indicated that he did not want to risk losing his casino job by being arrested.4 In July 2009, Collins appeared with his counsel at the Hamilton County Court of Common Pleas for a hearing on his objections to the CPO. Kauffung appeared pro se. At the hearing, Judge Winkler indicated he would reduce the term of the CPO to two years (doc. no. 77-1 at 75, 79,

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81). When counsel inquired about the arrest warrant, Judge Winkler stated that he did not have jurisdiction over the arrest warrant (which was issued by the Hamilton County Municipal Court) and indicated that Collins should voluntarily surrender to police (Id. at 75-76).

Instead of surrendering, Collins (through counsel) filed a motion to rescind the arrest warrant in the Hamilton County Municipal Court. Municipal Judge Russell denied the motion on August 3, 2009 and instructed Collins to voluntarily surrender. Again, Collins did not do so. He later testified that he believed (incorrectly) that his arrest warrant would expire when the CPO expired (Collins Dep. at. 271). On February 22, 2011, Collins was pulled over for a traffic violation and was arrested on the warrant (doc. no. 110 at 14). After less than 12 hours in custody, he was released on bond. Trial on the CPO violation charge was set for March 14, 2011. Kauffung did not appear because she had moved and did not receive notice of the hearing. Although the prosecutor requested a continuance in order to subpoena her, the court denied such request and dismissed the case for "want of prosecution" (doc. no. 71-11 at 4).

On February 21, 2012, Collins, through new counsel, filed a federal complaint against seven defendants, alleging violation of 42 U.S.C. § 1983, false arrest and imprisonment, and malicious prosecution. In a "First Amended Complaint" (doc. no. 37), he omitted any claims against the arresting officer (Green Township Police Officer Jeff Sabers) and the Board of Trustees of Green Township. In an eight-count "Second Amended Complaint" filed on January 31,

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2013 (doc. no. 47), he added a defendant (Sgt. Gilmer) and asserted more § 1983 claims. This Court subsequently granted Collin's unopposed motion to dismiss two defendants -- Patricia Clancy and Tracy Winkler (respectively, the former and current Hamilton County Clerk of Courts) -- from this case (doc. no. 104, Order).

Plaintiff brings the following claims: Count I alleges a § 1983 claim only against the Clerk of Courts, who has already been...

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