Emmons v. McLaughlin

• Citation: 874 F.2d 351
• Decision Date: 30 June 1989
• Docket Number: No. 88-3437,88-3437
• Parties: Douglas EMMONS, Plaintiff-Appellant, v. Robert McLAUGHLIN, Donald Ratliff, Gary DeWalt, City of Norwalk, Reese Wineman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 351

874 F.2d 351

Douglas EMMONS, Plaintiff-Appellant, v. Robert McLAUGHLIN, Donald Ratliff, Gary DeWalt, City of Norwalk, Reese Wineman, Defendants-Appellees.

No. 88-3437.

United States Court of Appeals Sixth Circuit.

Argued Feb. 9, 1989.

Decided May 11, 1989.

Rehearing Denied June 30, 1989.

George R. Smith, Jr. (argued), Francis C. Collins, Toledo, Ohio, for plaintiff-appellant.

David J. Simko, Mark E. Lupe (argued), Brown, Baker, Schlageter & Craig, Toledo, Ohio, for defendants-appellees.

Before MERRITT and NELSON, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Plaintiff-Appellant Douglas Emmons appeals the district court's decision granting summary judgment in favor of the Defendants-Appellees in this section 1983 action for police harassment. Appellant Emmons contends on appeal that the district court erred in finding no genuine issue of material fact in the evidence before the court, and alternatively, that the court abused its discretion in entering summary judgment before he had adequate time for discovery. Because we find no reversible error in the district court's decision, we affirm.

I.

Appellant Emmons brought this action pursuant to 42 U.S.C. Secs. 1983 & 1988 for nominal damages, compensatory damages, punitive damages, and attorney's fees to redress alleged violations of his rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Appellant contends that Appellees, the city of Norwalk, Ohio, police department; Gary DeWalt, a police officer for the city of Norwalk; Robert McLaughlin, a patrol officer with the Norwalk police department; Reese Wineman, the law director for the city of Norwalk; and Donald Ratliff, the Norwalk chief of police, conspired between 1978 and 1986 to harass and intimidate him solely because of their "unfounded" belief that he was a drug dealer. Appellant, however, had served two six-month jail sentences in the Huron County jail for First Degree Misdemeanors involving cocaine and was released from his one year incarceration in November, 1984. ¹ He nonetheless asserts in his complaint that the alleged harassment consisted of unlawful stops of his automobile, police surveillance, questioning of his social and business acquaintances, an unreasonable search of Appellant's business truck without probable cause, and a confrontation in which Appellant claims that he was verbally threatened by Appellee McLaughlin. As a result, Appellant was unable to carry on his business, and his friends and business associates were dissuaded from having any contact with him for fear that they too would be harassed by Appellees. Appellant finally alleges that the harassment culminated in his being "run out of town." He is now a resident of Roswell, Georgia.

Appellant's complaint was filed on May 1, 1987. Appellees responded by filing a motion to dismiss with attached affidavits denying all allegations of wrongdoing. Appellant then countered by submitting a motion in opposition in which he recognized that "Defendants have endeavored at a very early stage in these proceedings to posture this case as one for Summary Judgment." Although Appellant maintained that the court should not consider any matters outside of the pleadings in deciding the motion to dismiss, as a safeguard he submitted his own affidavit and a copy of a complaint against the police department with his motion. Appellant subsequently commenced discovery with the submission of interrogatories to Appellees as well as requests for admissions and production of documents. On December 7, 1987, however, Appellees filed a "Motion for Summary Judgment," relying on their previously filed affidavits. Appellant responded by filing a motion "In Opposition to Defendants' Motion for Summary Judgment," in which he reiterated his contention that summary judgment was premature.

While summary judgment was pending, Appellant's discovery requests produced no information. In response to Appellees' numerous objections to the requests, Appellant moved to compel discovery. Appellees opposed the motion to compel claiming, inter alia, that compulsion was premature before a discovery conference was held under a Local Rule. Appellant then moved to have his motion to compel held in abeyance until the parties could hold the conference.

Three days later, however, on February 19, 1988, the district court granted Appellees' motion for summary judgment, citing a lack of specificity in Appellant's complaint and affidavit, and a consequent failure to raise any genuine issues of material fact. Appellant moved the district court to alter or amend judgment under Rules 59 and 60(b), Fed.R.Civ.P., seeking additional time for discovery. The district court denied the motions, however, and this timely appeal ensued.

II.

We initially face Appellant's contention that the district court erred in granting summary judgment on the "facts" of record. Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). So long as the movant has met its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact," id. at 323, 106 S.Ct. at 2553, the nonmoving party then "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the nonmoving party is unable to make such a showing, summary judgment is appropriate. Rule 56 thus operates to "isolate and dispose of factually unsupported claims or defenses." Celotex, 477 U.S. at 323-324, 106 S.Ct. at 2553. Upon a careful review of the record, we agree with the district court that Appellant failed to present "specific facts" sufficient to defeat Appellees' motion for summary judgment.

Appellant cites only two specific instances of Appellees' alleged misconduct. The first concerns his contention that on May 22, 1986, Appellee patrolman McLaughlin confronted Appellant in a Lawson's parking lot and stated, "I am going to get you, Larry Sturgil and Sam Sadoti." McLaughlin then stated that Sturgil was already dead, having committed suicide. Appellant claims that this "threat" caused him to fear for his life in violation of his constitutional rights. Appellant's asserted fear from these spoken words, however, is not an actual infringement of a constitutional right, and thus, it is not actionable under section 1983. See Macko v. Byron, 760 F.2d 95, 97 (6th Cir.1985) (per curiam), aff'g, 576 F.Supp. 875 (N.D.Ohio 1983); Lamar v. Steele, 698 F.2d 1286 (5th Cir.) (per curiam), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983).

Appellant secondly specifies that on May 5, 1985, Appellees conducted an illegal search of his motor vehicle, a truck used in his new seafood business. In his complaint, Appellant alleges that the search, though founded on a search warrant, was without probable cause and was conducted in an unreasonable manner, resulting in the destruction of his seafood. Appellant's sworn affidavit, however, virtually ignores the May 5 search.

The district court refused to consider these claims, holding that the incident occurred outside the one-year statute of limitations then applicable to section 1983 actions in Ohio. See Mulligan v. Hazard, 777 F.2d 340 (6th Cir.1985). In light of the Supreme Court's recent decision in Owens v. Okure, --- U.S. ----, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), however, this court now holds that the Ohio two-year limitations period for bodily injury, see Ohio Rev.Code Ann. Sec. 2305.10 (Anderson 1988), applies to section 1983 claims. See Browning v. Pendleton, 869 F.2d 989, 990 (6th Cir.1989) (en banc). The district court's statute of limitations holding, therefore, is no longer correct. Nonetheless, after reviewing the materials before the district court, we conclude that summary judgment was properly entered against Appellant on his unlawful search claim.

Appellant's initial argument, that the May 5 search was not supported by probable cause, is wholly unsupported by this record. The search was based on a warrant issued by a local judge, which was in turn based on the affidavit of Appellee McLaughlin. McLaughlin's affidavit, which included information from "reliable" confidential informants ² that was substantially corroborated, recounted Appellant's purchase of the truck, ostensibly for his "seafood" business, his trip to the Florida panhandle where he met with a friend who had previously been convicted of drug offenses in Florida state court, an informant's statement that Appellant's traveling companion, Wally Coder, had "called from Florida and said that he and Emmons were bringing cocaine back to Ohio," and the date the two were scheduled to leave Florida. Appellant presented no facts to the district court, however, that might have undermined the validity of the search warrant issued on this information. We therefore hold that there was no genuine issue concerning whether the local judge had a " 'substantial basis for ... conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)).

Appellant likewise failed to support his allegation that the May 5 search was conducted unreasonably. Appellees' affidavits deny this claim and further state that precautions were taken to ensure that Appellant's merchandise was not harmed, including the purchase of a large amount of ice and the immediate connection of electrical service to the refrigeration unit on Appellant's truck. Appellant's affidavit, however, is completely...