Durham v. Niffenegger, Case No. 1:18-cv-0091
| Decision Date | 05 March 2019 |
| Docket Number | Case No. 1:18-cv-0091 |
| Parties | DAVID DURHAM, Plaintiff, v. DETECTIVE JERRY NIFFENEGGER, et. al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Litkovitz, M.J.
Plaintiff David Durham brings this action against defendants Jerry Niffenegger and Mark Purdy, detectives employed by the Warren County, Ohio Sheriff's Office (Sheriff's Office); Target Corporation (Target); James Christian, a Target employee; and Walmart Stores, Inc. (Walmart).1 Plaintiff sues the individual defendants in their individual and official capacities. Plaintiff seeks relief under 42 U.S.C. § 1983 for alleged violations of his rights under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution; violations of his rights under the Ohio Constitution; and violations of Ohio common law. This matter is before the Court on defendants Walmart, Target, and Christian's motions to dismiss the complaint (Docs. 16, 20), plaintiff's opposing memoranda (Docs. 21, 22), and defendants' reply memoranda (Docs. 23, 24).
Plaintiff makes the following allegations in the complaint (Doc. 1): On February 9, 2016, plaintiff was operating a business, Games Galore, out of three locations: Harrison in Hamilton County, Ohio; Northgate Mall in Hamilton County; and Trader's World in Warren County, Ohio.(Id. at 5). He had started the business as a sole proprietorship in 2004. (Id.). Plaintiff was arrested at his Games Galore business located in Northgate Mall on February 9, 2016. (Id. at 5, 8). A Warren County grand jury indicted plaintiff on four misdemeanor counts and one felony count of receiving stolen property on August 29, 2016.2 (Id. at 5; Exh. 1). Plaintiff was acquitted of all charges on April 24, 2017. (Id.; Exh. 2). As a result of his arrest, plaintiff was forced to close two of his three business locations and now operates only the Trader's World location. (Id. at 6).
Prior to his arrest, agents from Target and Walmart had approached individuals at the Sheriff's Office and told them that local independent video game retailers "have an adverse effect on video game sales" at Target and Walmart. (Id. at 6). Target and Walmart agents then conspired with agents from the Sheriff's Office "to run sting operations" against plaintiff. (Id.). Agents from the Sheriff's Office enlisted an individual by the name of Sentel Brooks, who had been arrested by unidentified police officers at the local Home Depot for theft, to be part of their "sting operation" instead of being prosecuted. (Id.). Under the direction of the Sheriff's Office, Brooks sold merchandise which had been obtained from Target with defendant Christian's assistance, to plaintiff at the Trader's World's location on December 20, 2015. (Id.). Further, under the direction of the Sheriff's Office, Brooks sold video games and merchandise to plaintiff at his Trader's World location on January 3, 2016. (Id.). That property had been obtained from Walmart with the assistance of defendant John Doe #1. (Id. at 7). On January 17, 2016 and later dates, defendant Purdy sold video games and other merchandise to plaintiff at his Trader's World location which had been obtained from Walmart and Target's corporate security agents. (Id. at 7). At no time did Purdy or any other individual represent to plaintiff that the video games orany other merchandise presented to him was stolen, and in fact the merchandise was not stolen. (Id. at 6-7).
Throughout the investigation, defendants Purdy, Niffenegger, Christian, and John Doe #1 entered plaintiff's Northgate Mall location several times looking for games they had sold to him at his Trader's World location. (Id. at 7). Defendants Purdy and Niffenegger prepared search warrants and affidavits containing false statements which indicated that plaintiff had purchased stolen merchandise and had offered to sell firearms. (Id. at 7-8). At no time did plaintiff offer to buy or sell or knowingly buy or sell stolen merchandise or firearms or other weapons. (Id.).
A search warrant was issued to the Sheriff of Hamilton County, Ohio for the Northgate Mall location by a Hamilton County judge on February 8, 2016. (Id. at 8, Exh. 3). A search warrant was issued to the Sheriff of Warren County for the Trader's World location by a Warren County judge on that same date. (Id. at 8, Exh. 4). On February 9, 2016, defendants Purdy, Niffenegger, Christian and John Doe #1 "executed search warrants" for the Northgate Mall and Trader's World locations. (Id.). Defendants entered the Northgate Mall location "with SWAT officers and firearms drawn." (Id. at 8). Plaintiff, an unidentified employee, and a customer were ordered to get on the ground as firearms "were cocked and brandished directly" at them. (Id.). Plaintiff was immediately cuffed with his hands in front of him and the customer was cuffed behind the back. (Id.). An employee, Robert Williams, was thrown to the ground, hitting his head on the counter, and was cuffed with his hands behind his back. (Id.).
"With a shotgun" pointed at plaintiff, defendant Niffenegger searched plaintiff and demanded to know the location of the safes and firearms. (Id.). Colerain Police Officer Joe Hendricks told plaintiff, "We have you dead to rights" and ordered plaintiff to go with the Warren County officers and talk to them. (Id.). Defendants Christian and John Doe #1 searchedthe store with "other police officers." (Id.). Property was taken from the Northgate Mall store, including items that were not discussed in the affidavits or listed in the search warrant, and a receipt for the property was filed with the Hamilton County Clerk of Court, Criminal Traffic Division. (Id. at 8-9; Exh. 5). The signature on the receipt is illegible. (Id., Exh. 5). Property was also taken from the Trader's World location and included items not discussed in the affidavits or listed on the search warrants. (Id. at 9; Exh. 6). The receipt for that property is signed by defendant Purdy. (Id., Exh. 6). Defendant Niffenegger executed a return of the search warrants on February 10, 2016. (Id. at 9).
Plaintiff was interrogated at a Colerain Township substation in the Northgate Mall. (Id.). The interrogation was recorded, but parts of the interrogation recording are missing and/or deleted and plaintiff does not recall being read his Miranda rights. (Id.). Defendants Purdy and Niffenegger interrogated plaintiff and accused him of lying.3 (Id.). Agents of the Sheriff's Office placed a total of $2,343.00 of plaintiff's money into evidence. (Id.). Plaintiff was acquitted, after which less than $1,000.00 of his money was returned to him. (Id.). Most of the merchandise taken from plaintiff's two business locations was released to Target and Walmart and only some of the merchandise was returned to plaintiff. (Id.).
At the request of agents of the Sheriff's Office, the Warren County Court of Common Pleas issued a restraining order against plaintiff which prohibited him from entering Trader's World, thus shutting down his business at that location.4 (Id. at 10; Exh. 7). "Police officers" told other Northgate Mall business owners that plaintiff was a criminal, and they told themanager of that store that he should never let plaintiff come back to the property. (Id.). The manager at the Northgate Mall store and at the Harrison location both quit their jobs the day after plaintiff's arrest. (Id.). Plaintiff had to close the Harrison location as a result. (Id.). Plaintiff tried to keep the Northgate Mall location open, but business suffered and he was eventually forced to close that location in July 2017. (Id.).
Plaintiff claims he suffered business and physical losses as a result of defendants' actions. Prior to plaintiff's arrest, his stores had earned at their respective locations over $200,000, $125,000 and $25,000. (Id. at 10-11). In 2017, the total earnings were $50,000. (Id. at 11). Further, the SWAT team's show of force caused plaintiff to start having panic attacks the day after his arrest. (Id.). A physician treated him and prescribed anti-anxiety medication, and he was referred to a psychiatrist who also treated him. (Id.). While his criminal case was pending, he developed stage-three kidney failure that was tentatively linked to excessive stress. (Id. at 12). Following his arrest, plaintiff suffered anxiety regarding video game trade-ins for fear of being "set up" again; he lost 40 pounds in three months; his medication had to constantly be adjusted; and he suffered gall bladder complications consistent with weight loss from stress and had to have his gall bladder removed. (Id. at 12). He also suffered constant fear that he would go to jail and be unable to continue as the sole caregiver for his wife, who had suffered a ruptured brain aneurism in 2012. (Id.).
Based on these allegations, plaintiff brings claims under 42 U.S.C. § 1983 for (1) unreasonable search and seizure (Fourth Amendment); (2) excessive force (Fourth Amendment); (3) violation of his rights to freedom of speech, assembly, and association (First Amendment); (4) malicious prosecution (Fourth Amendment); and (5) deprivation of liberty without due process of law (Fifth Amendment). (Id. at 12-15). Plaintiff also brings state law claims for (1)false imprisonment (sixth cause of action); (2) false arrest (seventh cause of action); (3) malicious prosecution (eighth cause of action); (4) assault and battery (ninth cause of action); (5) excessive use of force (tenth cause of action); (6) intentional infliction of emotional distress (eleventh cause of action); (7) negligent infliction of emotional distress (twelfth cause of action); (8) gross negligence and reckless actions (thirteenth cause of action); and (9) theft/conversion/unjust enrichment (fifteenth cause of action). (Id. at 15-21). Plaintiff brings a claim for civil conspiracy in violation of both his federal and state constitutional rights ...
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