Dohner v. Neff, No. 3:98CV7302.

• Decision Date: 11 December 2002
• Docket Number: No. 3:98CV7302.
• Parties: Alice DOHNER, Plaintiff, v. H. Weldin NEFF, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

Page 692

240 F.Supp.2d 692

Alice DOHNER, Plaintiff, v. H. Weldin NEFF, et al., Defendants.

No. 3:98CV7302.

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

December 11, 2002.

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COPYRIGHT MATERIAL OMITTED

Harland M. Britz, Britz & Zemmelman, Toledo, OH, for Plaintiff.

Dean Charles Henry, Tiffin, OH, Richard M. Kerger, Kerger & Kerger, Toledo, OH, Robert H. Willard, Reminger & Reminger, Columbus, OH, James D. Caruso, Arnold & Caruso, Toledo, OH, John E. Vincent, Mark D. Landes, Sonia T. Walker, Isaac, Brant, Ledman, & Teetor, Timothy S. Rankin, Rankin Law Offices, Columbus, OH, for Defendants.

ORDER

CARR, District Judge.

Plaintiff Alice Dohner brings this suit against defendants H. Weldin Neff, individually and in his official capacity as Sheriff of Seneca County, Ohio; Dennis A. Smith, individually and in his official capacity as de-facto Deputy Sheriff and/or agent for H. Weldin Neff; and Kenneth E. Estep, Janet A. Dell, and Jeffrey D. Wagner—members of the Board of Commissioners of Seneca County, Ohio ("County Defendants"). Plaintiff asserts federal claims under 42 U.S.C. §§ 1983 and 1985(3), state claims under the Ohio Constitution, and state common-law tort claims. This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

Pending are motions by all defendants for summary judgment on the § 1983 and § 1985(3) claims. For the following reasons, Neff and Smith's motion shall be granted in part and denied in part and the County Defendants' motion shall be granted.

BACKGROUND

From 1989 to April 17, 1998, plaintiff worked as a civilian dispatcher for the Seneca County, Ohio Sheriffs Department ("Sheriffs Department"). Plaintiff was an exempt employee under the Sheriffs Department Bargaining Unit, which meant she could only be discharged for cause.

From 1989 to 1997, plaintiff worked under Sheriff Runion and Sheriff Stephens. During that period, plaintiffs husband, Rick Dohner, was the Department's Chief Deputy. Stephens, Runion, Alice Dohner, and Rick Dohner were members of the local Democratic Party.

In 1996, defendant Neff, a Republican, was elected Sheriff, defeating Stephens. Neff assumed the Sheriffs office on January 1, 1997. Plaintiff continued to work for the Department as a civilian dispatcher after Neff s election.

Defendant Smith is Neffs friend and political ally. Smith is not an employee of the Sheriffs Department. He occasionally performed chores, such as picking up and delivering mail to and from the courthouse, for the Sheriffs Department. After the 1996 election, Smith was in and around the Sheriffs office four or five days a week.

Plaintiff alleges that, at various times before the 1996 election, after the election, and after Neff assumed office, defendants Neff and Smith engaged in repeated stalking, aggravated menacing, intimidation, and coercion. The complaint asserts that Neff and Smith individually, and in concert and as coconspirators, committed criminal, unconstitutional, and tortious acts against her. Those actions, plaintiff contends, made her continued employment with the Department intolerable, and compelled her to quit her job. Thus, the gravamen of plaintiffs complaint is that Neff and Smith caused her constructive discharge.

Plaintiffs allegations against Smith include: 1) Smith pulled up beside plaintiffs vehicle yelling, screaming, and making faces; 2) while plaintiff and her husband were shopping, Smith told a salesman that they did not pay their state sales taxes and discouraged him from selling anything to them; 3) during the 1996 election, Smith handed out sheets of toilet paper, stating "wipe out corruption," with Sheriff Stephens' and Rick Dohner's picture on them; 4) Smith repeatedly drove by plaintiffs home at a slow rate of speed; 5) Smith attempted to run into plaintiff with his semi-tractor trailer; 6) after Neff became Sheriff, Smith visited Neff and made intimidating faces and gestures towards plaintiff while she was working; 7) Smith would enter plaintiffs workstation through a security-coded door that Neff provided to Smith; and 8) Smith followed her on several occasions while she was shopping or banking.¹

Defendant Neff, according to the complaint: 1) allowed Smith to be on the premises of the Sheriffs office after plaintiff complained nineteen times to Neff about Smith's intimidating behavior, 2) denied plaintiffs request to carry her firearm during her dispatcher shift; 3) reprimanded plaintiff for putting calls through to his office; 4) hired Randy Hamilton, who was politically opposed to Rick Dohner and a tenant of Smith, as plaintiffs supervisor; 5) ordered a bogus investigation into plaintiffs alleged misuse of the LEADS system; 6) watched over the dispatch center from an adjacent darkened room and stared at plaintiff; 7) pretended to be leaving the premises but would instead move his vehicle and come back into the building; 8) left a package including an employment application for Smith to pick up at the Sheriffs office during plaintiffs shift so she would believe Smith was going to work at the Sheriffs Department as a dispatcher; 9) pinned her badge upside down in the Sheriffs display case following plaintiffs resignation.

Plaintiff caused criminal charges to be filed against Neff and Smith. Smith was convicted of Menacing by Stalking and Complicity in the Seneca County Common Pleas Court. Neff was acquitted of similar charges.

The actions attributed to Neff and Smith, plaintiff contends, constituted a conspiracy to force her to quit her job in violation of various constitutional rights. Her complaint alleges six causes of action.

Count One, brought under § 1983, claims that defendants Neff and Smith, acting under color of state law, deprived plaintiff of her First Amendment right of freedom of association, Fourth Amendment right of privacy; Fourteenth Amendment rights to due process and equal protection.

Count Two, brought under § 1985(3), claims that defendants Neff and Smith conspired to deprive plaintiff of her constitutional rights to force her to resign from her job. Plaintiff alleges Neff and Smith conspired because plaintiff had served under and supported the former Sheriff and because she was married to Rick Dohner, who also worked under and supported the former Sheriff.

Count three is based on violations of the Ohio Constitution.

Count Four, brought under § 1983, § 1985(3), and the Ohio Constitution, claims that Neff was deliberately indifferent to plaintiffs clearly established constitutional rights, and, as a policy maker for the Sheriffs Department, Neffs acts constitute official policy of Seneca County, Ohio, making the County liable for Neff s misconduct. Also, plaintiff alleges that Neff s acts demonstrate a custom within the Sheriffs Department of abuse of governmental authority. This custom, according to plaintiff, was known or should have been known to those with the authority to remedy it—the Seneca County Board member defendants Estep, Dell, and Wagner. Their deliberate indifference to Neff s misconduct, plaintiff alleges, makes them liable for the damages she suffered from that misconduct.

Counts Five and Six assert state law claims of intentional infliction of emotional distress and assault.

Defendants Neff and Smith seek summary judgment on Counts One and Two. The County Defendants seek summary judgment on Count Four. For the following reasons, the motion of defendants Neff and Smith shall be granted in part and denied in part. The County Defendants' motion shall be granted.

STANDARD OF REVIEW

Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., ill U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting FED. R. CIV. P. 56(e)).

Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324,106 S.Ct. 2548.

In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). Summary judgment shall be rendered only 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 judgment as a matter of law. FED. R. Civ. P. 56(c).

DISCUSSION

I. Count One: § 1983

Defendants Neff and Smith argue plaintiffs § 1983 claim must fail as a matter of law because Smith was not a state actor and the allegations against Neff are subject to the defense of qualified immunity.

A. State Action

Section 1983 provides: Every...