Ghaster v. City of Rocky River

• Decision Date: 26 September 2012
• Docket Number: Case No. 1:11CV1422.
• Citation: 913 F.Supp.2d 443
• Parties: Pamela A. GHASTER et al., Plaintiffs, v. CITY OF ROCKY RIVER, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

913 F.Supp.2d 443

Pamela A. GHASTER et al., Plaintiffs,

v.CITY OF ROCKY RIVER, et al., Defendants.

Case No. 1:11CV1422.

United States District Court,

N.D. Ohio,

Eastern Division.

Sept. 26, 2012.

Kenneth D. Myers, Cleveland, OH, for Plaintiffs.

David Ross, John P. O'Neil, Michelle J. Sheehan, Reminger & Reminger, Cleveland, OH, for Defendants.

OPINION AND ORDER

CHRISTOPHER A. BOYKO, District Judge.

This matter comes before the Court on Defendants City of Rocky River (“Rocky River”), Donald Wagner (“Wagner”), Carl Gulas (“Gulas”), Andrew Bemer (“Bemer”) and Michael O'Shea (“O'Shea”) collective Motion to Dismiss Plaintiffs' Refiled Complaint pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 3). The Magistrate Judge recommends the Defendants' Motion be granted, in part, and denied, in part, as follows.

1. GRANTED as to Count One, alleging a wrongful search and seizure (property) in violation of the Fourth Amendment, with respect to all individual Defendants except a John Doe police officer and Gulas, and DENIED as to a John Doe police officer and Gulas;

2. GRANTED as to Count One, alleging a wrongful seizure of the person (arrest) in violation of the Fourth Amendment, with respect to all Defendants;

3. GRANTED as to Count Two, alleging malicious prosecution in violation of the Fourth Amendment, with respect to all Defendants;

4. GRANTED as to Count Three, alleging violation of Ghaster's First Amendment rights, with respect to all individual Defendants;

5. DENIED as to Count Four, alleging municipal liability for Rocky River pursuant to Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), with the issue of liability remaining only with respect to the seizure of Ghaster's cell phone by a John Doe police officer and for an unlawful search resulting from Gulas's allegedly false statements to secure a warrant to search the cell phone.

For the following reasons, the Court ACCEPTS and ADOPTS the Magistrate Judge's Report and Recommendation.

I. PROCEDURAL HISTORY

On September 8, 2009, Plaintiffs filed their Complaint against the Defendants in this Court. See Ghaster, et al. v. City of Rocky River, et al., Case No. 1:09–cv–2080 (2010). Defendants moved to dismiss the Complaint, and the Court found that the federal allegations failed to state a claim plausible on its face and dismissed those claims without prejudice. The Court refused to exercise supplemental jurisdiction over Plaintiffs' state law claims and dismissed those claims without prejudice.

On July 12, 2011, Plaintiffs initiated the present action against the Defendants. In their Complaint (Doc. 1), Plaintiffs assert against the individual Defendants, pursuant to 42 U.S.C. § 1983, causes of action for unreasonable searches and seizures in violation of the Fourth Amendment, a violation of Ghaster's free speech rights under the First Amendment, and malicious prosecution. Plaintiffs again assert liability against Rocky River pursuant to § 1983 and Monell. Defendants moved to dismiss Plaintiffs' claims pursuant to R. 12(b)(6). Plaintiffs filed a Response to Defendants' Motion to Dismiss (Doc. 7), and Defendants filed a Reply Brief in Support (Doc. 8).

In addition, the Plaintiffs filed Objections to the Magistrate Judge's Report and Recommendation (Doc. 14), to which the Defendants filed a Response (Doc. 19). The Defendants filed their own Objections to the Magistrate Judge's Report and Recommendation (Doc. 17), to which the Plaintiffs filed a Response (Doc. 18).

II. FACTS

The Complaint alleges that on September 6, 2007, Rocky River charged Ghaster with two counts of disorderly conduct for allegedly yelling “coarse and abusive language.” According to Plaintiffs, a neighbor called Ghaster a “vulgar name for a female body part,” to which Ghaster responded by calling her neighbor “fat boy” and “little dick.” Complaint at 5. Ghaster was charged with two counts of misdemeanor disorderly conduct, based on the allegation that Ghaster's remarks had been heard by two neighbors. Plaintiffs allege that the prosecutor did not present the charge to a grand jury and that there was no probable cause to believe a crime had been committed because Ghaster's speech was protected by the First Amendment. Plaintiffs further allege that the prosecutor dismissed the charges on the day of trial.

Plaintiffs also allege that on September 11, 2007, Rocky River charged Ghaster with making false alarms and disorderly conduct, both misdemeanor offenses. Plaintiffs contend that Ghaster discovered from public records that the boyfriend of a neighbor had a police record and that there was a warrant out for his arrest. Ghaster told this to another neighbor, who in turn told additional neighbors “but embellished the story.” Complaint at 6. According to Plaintiffs, police investigated this incident without talking to the neighbor to whom Ghaster first gave the information. Plaintiffs again allege that O'Shea did not present the charge to a grand jury, that there was no probable cause to believe a crime had been committed because Ghaster's speech was protected by the First Amendment, and that O'Shea dismissed both charges the day of trial.

During the period in which the above incidents occurred, Ghaster was tried and convicted of menacing by stalking, obstruction of official business, and intimidation of a witness. She was sentenced to and served more than six months in jail. Ghaster further alleges that Rocky River also charged her with other offenses that either resulted in acquittals or dismissals.

Ghaster alleges that after she was arrested, a John Doe Rocky River police officer approached E. Ghaster and told him that Ghaster had requested her cell phone and that she would be allowed to use the phone. E. Ghaster gave the officer the phone. According to Ghaster, Gulas then swore out a false affidavit, swearing that he had reason to believe that the phone contained evidence of a plan by Ghaster to violate a restraining order. Ghaster alleges that Gulas later admitted under oath that he had no reasonable cause to believe this. Plaintiffs also allege that Gulas stated in his affidavit that Ghaster had “on numerous occasions” sent faxes to the Rocky River Police, Rocky River's prosecutor's office, and the City of Rocky River about Laurie Rauser, even though he had no evidence that Ghaster had sent such faxes. Finally, Plaintiffs allege that Gulas stated in his affidavit that Plaintiff's cell phone had been given to police voluntarily, even though he knew it had been obtained under false pretenses. The allegedly false affidavit was used to obtain a search warrant, and the police searched Ghaster's phone. They did not find any evidence of wrongdoing. No affidavits or records were attached to the Complaint.

Ghaster further alleges that, in addition to initiating and continuing criminal prosecutionsagainst her without probable cause, one or more Defendants also left documents containing Ghaster's private information, including her social security number and information documenting her work as an informant for other law enforcement agencies, in a box of records made available to the public for inspection; and published in public court records private law enforcement records regarding Ghaster. In addition, Ghaster alleges the following:

1. Bemer and private citizens attempted to persuade a witness, Ed Abel (“Abel”), not to testify on Ghaster's behalf in a criminal proceeding, and Bemer offered to bring Abel to the police station to explain why he was on the “wrong side of the issue.” Complaint at 8. According to Plaintiffs, Abel took this as an attempt to intimidate him from testifying;

2. An unknown Rocky River police officer examined Ghaster's medical records, without permission, while Ghaster was hospitalized and in police custody;

3. Rocky River refused to investigate instance of vandalism of Plaintiffs' property;

4. Rocky River refused to arrest, hold, or identify an individual they found trespassing on the Plaintiffs' property;

5. Rocky River, Bemer, Wagner, and O'Shea failed to investigate instances of individuals attempting to tamper with witnesses for the Plaintiffs in criminal matters;

6. After attempts to intimidate the Plaintiffs' witnesses were made public, O'Shea sent an e-mail to Gulas and Wagner, saying, “I need to put a lid on this ASAP”;

7. An anonymous letter alleged that O'Shea, Wagner, and other Rocky River officials encouraged citizens to send anonymous threatening letters to and about the Plaintiffs to get them to move;

8. O'Shea stepped outside his capacity as a prosecutor to serve as an administrator and investigator in assembling cases against Plaintiffs. This included e-mailing Bemer, Gulas, and Wagner to “put a lid on” allegations of witness intimidation, telling Gulas not to bring to court documents that Plaintiffs had subpoenaed; and

9. O'Shea and Bemer received an anonymous letter from a group calling itself “Villagers of South Island,” alleging that the writers were working in co-operation with the Rocky River police and prosecutor to monitor Ghaster's comings and goings.

Ghaster asserts that these acts violated her constitutional rights, including her right not be prosecuted without probable cause, her First Amendment right of free speech, and her Fourth Amendment right to be free of unreasonable searches and seizures. Ghaster alleges that Defendants wrongfully conspired to violate these rights.

III. LAW AND ANALYSIS

A. Civil Rule 72(b) Standard

Pursuant to Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(C), the District Court shall review de novo any finding or recommendation of the Magistrate Judge's Report and Recommendation that has been specifically objected to. Failure to make a timely objection to any aspect of the Report and Recommendation may waive the right to appellate review of the District Court's order. U.S. v. Walters, 638 F.2d 947, 950 (6th Cir.1981). The District Court need only review the MagistrateJudge's...