John Spratt v. John Rickey

• Decision Date: 26 March 1998
• Docket Number: 97 CA 639,97 CA 642,98-LW-1021
• Parties: JOHN SPRATT, Plaintiff-Appellant v. JOHN RICKEY, ET AL., Defendants-Appellees Case
• Court: Ohio Court of Appeals

JOHN SPRATT, Plaintiff-Appellant v. JOHN RICKEY, ET AL., Defendants-Appellees

No. 97 CA 639, 97 CA 642.

98-LW-1021 (4th)

Court of Appeals of Ohio, Fourth District Adams

March 26, 1998

COUNSEL FOR APPELLANT: Lawrence R. Fisse, 174 East Main Street Batavia, Ohio 45103-2902 and John Woliver 204 North Street Batavia, Ohio 45103.

COUNSEL FOR THE WINCHESTER APPELLEES:^[1] Jeffrey T. Williams Elizabeth L. Hendershot, and Otto Beatty, III, Baker & Hostetler LLP, 65 East State Street, Columbus, Ohio 43215.

COUNSEL FOR APPELLEE RAY A. PENDELL: Edward R. Goldman, Rendigs, Fry, Kiely & Dennis, 900 Fourth & Vine Tower, Five West Fourth Street, Cincinnati, Ohio 45202-3688.

DECISION

ABELE J.

This is an appeal from an Adams County Common Pleas Court summary judgment dismissing a complaint filed by John Spratt, plaintiff below and appellant herein, against the following ten defendants: the Village of Winchester, the Village of Winchester's Mayor John Rickey; the Village of Winchester's Police Chief Caleb Sulfridge; the Village of Winchester's Council Members Wilma Breeze, James Kendal, Sheryl Young, Jamie Stout, Arnold Foster, and Charles Tumbleson; and the Village of West Union's Police Chief Ray A. Pendell.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE COURT ERRED AND ABUSED ITS DISCRETION IN NOT GRANTING APPELLANT'S REQUEST UNDER CIVIL RULE 56(F) FOR ADDITIONAL TIME TO CONDUCT DISCOVERY."

SECOND ASSIGNMENT OF ERROR:

"THE COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE APPELLEES ON ALL OF APPELLANT'S CLAIMS AGAINST THEM AND IN DISMISSING APPELLANT'S COMPLAINT AGAINST THEM."

On May 10, 1996, appellant filed the instant complaint "for injunctive relief, invasion of privacy, violation of statutory, constitutional and civil rights and for damages (42 U.S.C. Section 1983; Revised Code Section 121.22)."

In his first claim for reliefs appellant alleged that on or about May 12, 1995 West Union Police Chief Ray A. Pendell unlawfully and without appellant's consent obtained a criminal history background check of appellant through the Law Enforcement Automated Data System (LEADS). Appellant further alleged that Pendell unlawfully revealed that information to Winchester Mayor John Rickey and that Rickey, in turret, unlawfully revealed the information to others.

The next three claims for relief involve events that allegedly occurred on or about June 5, 1996. In his second claim for relief, appellant alleged that on or about June 5, 1996, Rickey ordered Winchester Police thief Caleb Sulfridge to remove appellant from a village council meeting because appellant was audiotaping that meeting. In his third claim for relief, appellant alleged that when Sulfridge was removing him from the meeting, Sulfridge physically assaulted and battered him. In his fourth claim for relief, appellant alleged that his removal from the meeting violated Ohio's Sunshine Law, R.C. 121.22.

In his fifth claim for relief, appellant alleged that on or about June 13, 1995, the Winchester Village Council enacted an ordinance regulating and/or prohibiting the audiotaping and videotaping of council meetings. Appellant further alleged that this ordinance violates Ohio's Sunshine Law, R.C. 121.22. The ordinance provides as follows:

"WHEREAS, the Village of Winchester desires to regulate audio and/or video recording of Winchester Village Council Meetings, and;

WHEREAS, every person has the right to know that he or she is being recorded;

THEREFORE BE IT ORDAINED that any person or persons wanting to record a Winchester Village Council meeting must register in the Village Hall by noon on the day of the Winchester Village Council meeting. All audio and/video recording devices shall be displayed and remain on the council table so that all in attendance can be aware of the taping. Also a form will be signed at the time the person comes to council meeting to record the meeting. No police radios or any transmitting devices will be allowed, with the exception of the Winchester Police Dept."

In his sixth claim for relief, appellant alleged that appellees, when acting as described in the first five claims for relief, acted under color of law and in violation of appellant's constitutional rights.

Appellant prayed for injunctive relief under R.C. 121.22, for a declaration that the ordinance is in violation of R.C. 121.22, for a civil forfeiture award of $500 as provided by R.C. 121.22, for compensatory and punitive damages, and for attorney fees and court costs.

On June 4, 1996, West Union Police Chief Ray A. Pendell filed an answer to the complaint. In his answer, Pendell admitted that he obtained appellants criminal history background check on or about May 12, 1995, but denied that the check was unlawful.

On July 16, 1996, the Winchester appellees filed a motion requesting the trial court to dismiss the complaint or grant summary judgment in their favor. In a memorandum in support of the motion, the Winchester appellees argued as follows: (1) the village is immune from the common law tort claims in the complaint; (2) R.C. 121.22 does not require that persons attending a public meeting be permitted to audiotape the meeting; (3) appellant has no standing to seek a $500 forfeiture under R.C. 121.22; (4) R.C. 121.22 does not permit monetary damages; and (5) appellant failed to satisfy pleading requirements for a 42 U.S.C. Section 1983 action for violation of civil rights.

In an affidavit in support of The motion, Winchester Mayor John Rickey stated in pertinent part as follows:

"2. I am the Mayor of the Village. In my capacity as Mayor and Chairman of the Police Committee of the Village Council, I oversee the Village Police Department, including personnel matter. [sic]

3. On April 15, 1995, Plaintiff, John Spratt ('Mr. Spratt'), was appointed as an auxiliary patrolman for the Village on a volunteer basis. During that time period, there was significant turnover within the Village Police Department. After his appointment as an auxiliary patrolman, Mr. Spratt expressed an interest in being considered for a full-time paid position as a Village Patrolman at a meeting of the Village Police Committee on April 17, 1995.

4. At the May 8, 1995 meeting of the Village Police Committee, I informed Mr. Spratt that I intended to have a criminal background check done on him as a result of certain information I had received from Village residents. Mr. Spratt initially responded that it was `ok' with him. However, at the end of the meeting, Mr. Spratt approached me and withdrew his application to be a full-time patrolman.

5. Given that Mr. Spratt was still an auxiliary patrolman for the Village, and that I considered his behavior at the May 8, 1995 Police Committee meeting to be very suspicious, I went ahead and had a background check done of Mr. Spratt. It revealed an extensive criminal history.

6. On May 17, 1995, I Withdrew Mr. Spratt's appointment as an auxiliary patrolman for the Village as a result of learning of his criminal history and requested that he return all uniforms and police property to the Village Hall. See May 17, 1995 letter to Mr. Spratt attached hereto."

On July 26, 1996, appellant filed a motion for additional time to respond to the Winchester appellees' motion. The trial court gave appellant until August 21, 1996 to respond to the motion.

On August 27, 1996, appellant filed a motion requesting permission to file a response out of time. In the motion, appellant explained that the Adams County Clerk of Courts rejected the response because the U.S. Postal Service claimed, erroneously, that an additional $3.89 of postage was due on the response.

On August 28, 1996, the Winchester appellees filed a reply memorandum to appellant's response.

On August 30, 1996, the trial court granted appellant's motion to file his response out of time. On that same date, appellant filed his response and filed a Civ.R. 56(F) motion for a continuance to permit him to obtain affidavits and conduct discovery. In an affidavit in support of the response, appellant stated that he never authorized the criminal background check. In an affidavit in support of the motion for continuance, appellant's attorney stated that because he had requested appellees' counsel to attempt to negotiate a settlement prior to the institution of discovery, appellant's attorney had not yet begun discovery. Appellant's attorney further stated that he believed "certain facts and information may be discovered during the discovery process * * * that may place material facts in issue."

On October 4, 1996, Pendell filed a motion for summary judgment. In a memorandum in support of the motion, Pendell argued that he had authority to conduct the criminal background check and further argued that pursuant to R.C. 2744.03 and 42 U.S.C. Section 1983, he is immune from liability.

On October 21, 1996, appellant filed a motion for additional time to respond to Pendell's motion. The trial court gave appellant an additional two weeks to respond to the motion.

On December 16, 1996, appellant filed a Civ.R. 56(F) motion for a continuance to permit him to obtain affidavits and conduct discovery in order to respond to Pendell's motion. In an affidavit in support of the motion for continuance, appellant's attorney stated that because he had requested Pendell's counsel and the Winchester appellees' counsel to attempt to negotiate a settlement prior to the institution of discovery, appellant's attorney had not yet begun discovery. Appellant's attorney further stated that he believed "certain facts and information may be discovered during the discovery process * * * that may place material facts in issue."

On December 18, 1996, appellant filed a response to

Pendell's motion for summary judgment.

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