Johnson v. Hazou

• Decision Date: 13 February 2017
• Docket Number: Case No.:1:15CV1811
• Parties: GERMANEY JOHNSON, Plaintiff v. OFFICER ZAKI HAZOU, et al., Defendants
• Court: U.S. District Court — Northern District of Ohio

GERMANEY JOHNSON, Plaintiff v. OFFICER ZAKI HAZOU, et al., Defendants

Case No.:1:15CV1811

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

February 13, 2017

JUDGE CHRISTOPHER BOYKO

Magistrate Judge Ruiz

REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. Introduction

The plaintiff Germaney Johnson filed a Section 1983 suit pro se in this court, against defendants Officer Zaki Hazou, Officer Ronald Kubacki, and Sgt. Dave Tomcho, all of the Strongsville Police Department. In brief summary, the lawsuit arises from Johnson's arrest after he refused to provide his driver's license or vehicle registration to police officers who asked him to provide the information when they approached his car, which was stopped and appeared to be disabled in the middle of a roadway. Johnson alleges that he advised the police officers that he had run out of gas and was just waiting in the car for his wife to return from a nearby gas station. (R. 1, at 6.) Johnson refused repeated requests to provide his identification, argued with officers and subsequently was arrested.

Johnson's complaint contains multiple claims: (1) excessive force; (2) deprivation of free speech and expression; (3) conspiracy and retaliation for the exercise of constitutional rights; (4) fraud; (5) breach of oath; (6) kidnapping; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; and, (9) negligence.¹ (R. 1.) The latter three claims are designated as "common law" (state law) claims. (R. 1, PageID #: 24-25.) Defendants have moved for summary judgment (R. 28), Johnson has filed an opposition brief (R. 29), and defendants filed a reply brief (R. 30).

After a thorough analysis of the parties' filings and applicable law, the undersigned recommends that Defendants' motion for summary judgment be granted and judgment rendered in defendants favor, for the following reasons.

II. Background

The evidence the parties have placed before the court is as follows. On February 9, 2014, Johnson was driving with his family in a Cadillac Escalade ("SUV") that was not registered to him.² (R. 28-1, Defendants' Exhibit ("DX") A, Johnson dep., PageID #: 288-289.) Johnson's vehicle ran out of gas and stopped in the left lane heading north on Pearl road. (Johnson dep., PageID #: 273-274, 291.) Another driver stopped and helped Johnson push the SUV out of the left traffic lane, into the center (turning) lane. (Johnson dep., PageID #: 275, 280-281, 283-284.) Johnson and one son remained in the SUV, with the hazard lights on, while his wife and another son walked to a nearby gas station. (Johnson dep., PageID #: 285, 287.) Approximately ten minutes later, a police car pulled up behind Johnson's disabled vehicle. (Johnson dep., PageID #: 294.)

Officer Hazou and his partner, Officer Kubacki, both in uniform, were patrolling in a marked police car, when Officer Hazou noticed the SUV stopped in the middle turning lane, with its hazard lights activated, and impeding the normal flow of traffic. (R. 28-2, DX B, Hazou aff., PageID #: 361.) The officers stopped behind the parked SUV, activated the police car's emergency flashing lights, and Officer Hazou looked up the license plate on the vehicle. Id. He determined that the SUV was registered to a woman's name. Id.

Officer Hazou and Officer Kubacki approached the SUV and noticed the driver was a man (Johnson). (R. 28-2, DX B, Hazou aff., PageID #: 362.) Officer Hazou asked Johnson what was wrong and Johnson stated he ran out of gas. (R. 28-3, DX C, Kubacki aff. PageID#: 364) Officer Hazou then asked Johnson for his driver's license. (Hazou aff., PageID #: 362; Johnson dep., PageID #: 295, 310.) Johnson asked him why they needed to see his identification, and refused to provide it. (Johnson dep., PageID #: 295, 297-299; Hazou aff., PageID #: 362.)

Johnson told the police officers that the vehicle had run out of gas, and that his wife was getting gas. (Johnson dep., PageID #: 310.) Officer Hazou responded that he still needed to see Johnson's identification and registration. (Johnson dep., PageID #: 310.) Johnson still refused to provide it, and continued to question why the police needed to see his license. (Johnson dep., PageID #: 310; Hazou aff., PageID #: 362.) Officer Hazou asserts that he referred to the Ohio Revised Code, to which he states Johnson responded, "it's a code, not the law." (Hazou aff., PageID #: 362.)

Johnson states that Officer Hazou told him that if he did not give him his identification and registration, they would arrest him. (Johnson dep., PageID #: 310.) Officer Hazou asserts that, after Johnson repeatedly refused to provide his license, Hazou ordered him out of the car.Officer Hazou states that he called for back-up assistance, after Johnson three times refused his order to exit the vehicle. (Hazou aff., PageID #: 362.)

Meanwhile, Officer Kubacki also advised Johnson that they needed to see his driver's license because they had stopped to check on him and his disabled vehicle, which was a hazard in the roadway, and they needed to identify who they were dealing with. (R. 28-3, DX C, Kubacki aff., PageID #: 364.) According to Officer Kubacki, Johnson continued to argue with the officers, and Kubacki informed him that, if he would not provide his license, he would be arrested. At that point, Officer Kubacki reports, he opened the driver's door. (Kubacki aff., PageID #: 365.)

Johnson's deposition testimony did not address the specific events of his actual arrest. The allegations of the complaint are that Johnson was "forcefully grabbed" by the arm, and "violently yanked" out of his car. (Compl., PageID #: 7.) The affidavit which Johnson has filed in support of his opposition to the motion appears to be more directed toward a subsequent criminal prosecution for, inter alia, resisting arrest in the Berea Municipal Court, than to this case. (R. 29-2, Plaintiff's Exhibit ("PX B"), G. Johnson aff., PageID #: 445.) Nevertheless, Johnson's affidavit states the following, in relation to the circumstances of his arrest:

Germaney C. Johnson (the man) committed no crime but was kidnapped by Affiant: PTL ZAKI HAZOU (a living man³) along with other living men who were to be in the capacity of Public Servants.

* * * * *NOTE: this matter began with Police Officers making an arrest without a crime being committed or a Warrant for the living man, Germaney C. Johnson. After being kidnapped, Germaney C. Johnson's family members had to pay ransom moneys to the Berea Municipal Court Clerk (of which was called bail) for the release of Germaney C. Johnson from their imprisonment.

(G. Johnson aff., PageID #: 445.) There is no reference in his affidavit as to any force used to effectuate his arrest.

In support of his opposition, Johnson also submitted an affidavit from his wife, Abigail L. Johnson, which again appears to be more directed to the Berea Municipal Court case, than to this case. (R. 29-1, PX A, A. Johnson aff., PageID #: 442.) On the issue of Johnson's arrest, Abigail Johnson states:

. . . Germaney C. Johnson, (a living man) was kidnapped, physically injured, emotionally injured and robbed (in front of his wife and two sons, three other living souls) Zaviayre G. Johnson, Aziyah G. Johnson and Abigail L. Johnson), on February 8, 2014 . . . by four (4) Strongsville Ohio Policemen who also put him in prison.

* * * * *

Germaney C. Johnson's arm, elbow and shoulder were also injured during the kidnapping and imprisonment of which Abigail saw when the Police forced him out of the vehicle and violently slammed him on the cold wet ground. The above mentioned Policemen do not and did not have any Authority, Claims and/or Jurisdiction over the living man, Germaney C. Johnson, his living sons Zaviayre G. Johnson, Aziyah G. Johnson and his living wife Abigail L. Johnson.

(A. Johnson aff., PageID #: 442-443.) There is no further reference in her affidavit as to any force used to effectuate Johnson's arrest.

According to Officer Kubacki's affidavit, the arrest proceeded as follows:

12. Johnson continued arguing with me and I heard Officer Hazou contact dispatch to send other officers because Johnson was not complying with ourorders. I informed him that if he would not provide his operator's license or information that we would arrest him at which time I opened the driver's door.

13. Officer Grace and Officer Bertz arrived on scene and approached the vehicle. I gave Johnson one last opportunity to identify himself and he would not, so I grabbed his left arm and he asked what I was doing and I told him he was under arrest. He said he was not going, so Officer Grace grabbed his arm and assisted me in getting him out of the vehicle. Johnson was not pulling back at this time, but he would not come out of the vehicle.

14. After removing Johnson from the vehicle, he attempted to pull away and make it difficult to handcuff him. His right arm was behind his back, so I put him in a Mechanical Advantage Control Hold #2. Johnson failed to comply with our orders to stop resisting arrest. He was still pulling away when I transitioned the hold into a take down. Officer Grace, Officer Bertz, and Officer Hazou assisted in taking Johnson to the ground, so we could handcuff him.

(Kubacki aff., PageID #: 365.)

Officer Hazou's affidavit indicates, in pertinent part, the following:

16. So I requested another unit to respond to the scene and Officer Kubacki spoke with Johnson. Johnson would not comply with Officer Kubacki's commands.

17. After Officer Grace and Officer Bertz arrived on scene, Officer Kubacki told Johnson he was under arrest and opened the driver's side door to the Cadillac Escalade. Officer Kubacki and Officer Grace removed Johnson from the vehicle.

18. We ordered Johnson to get on the ground, but he resisted and refused to comply.

19. After Johnson refused to get on the ground, I approached him and displaced his balance with Officer Grace's assistance while Officer Kubacki and Officer

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