Johnson v. Kroger Co.
| Decision Date | 17 July 2020 |
| Docket Number | Civil Action 2:18-cv-1240 |
| Parties | WILLIAM E JOHNSON, Plaintiff, v. THE KROGER COMPANY, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
This matter, in which the parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c), (Doc. 12), is before the Court on Defendant's Motion to Seal (Doc. 63), Defendants' Motion for Summary Judgment (Doc. 72), Plaintiff's Motion for Partial Summary Judgment - 42 U.S.C. §§ 1981, 1982 and the Ohio Civil Rights Act (Doc. 73), Plaintiff's Motion for Partial Summary Judgment - Spoliation (Doc. 74), and Plaintiff's Motion for Partial Summary Judgment - Malicious Prosecution (Doc. 75). For the reasons that follow, Defendants' Motion for Summary Judgment (Doc. 72) is GRANTED in part and DENIED in part; Plaintiff's Motions for Partial Summary Judgment (Docs. 73-75) are DENIED; and Defendant's Motion to Seal (Doc. 63) is GRANTED.
This case is about alleged racial profiling at Defendant The Kroger Company's ("Kroger") store located at 801 N. Houck Road in Delaware, Ohio (the "Store"). Plaintiff William E. Johnson is a 65-year-old Black man who resides in Delaware, Ohio. (Doc. 47-1, 5:11-15; id., 98:10-16). Defendant Kroger operates a nationwide chain of grocery stores, including the Store. Defendant Michael Simons is a Kroger Senior Asset Protection Specialist. In that role, Defendant Simons' responsibilities include, among others: detecting and apprehending shoplifters, archiving video for law enforcement requests, training and overseeing asset protection specialists, and handling employee and internal investigations. (Doc. 59-2 at 6-7).
On October 17, 2017, Plaintiff shopped at the Store, as he had done many times before. (Doc. 47-1, 18:14-19:11). Upon entering the Store, he retrieved a shopping cart and placed a circular ad in the upper basket of the cart. (Id., 21:23-24:6). Plaintiff proceeded down the main aisle, looking for DVDs, he says, to send to his granddaughters. (Id., 24:23-26:1). He then placed two DVDs, Girls Trip and Wonder Woman, in the upper basket of his shopping cart with the circular ad. (Id., 26:20-27:14).
As Plaintiff shopped, Defendant Simons attended a training program at the Store. (Doc. 62, 28:5-15). While walking between departments, Defendant Simons first saw Plaintiff. (Id., 37:4-9). He noticed the DVDs in Plaintiff's cart and told his Kroger coworkers that he was going to surveil Plaintiff. (Id., 42:11-17).
Defendant Simons then approached Plaintiff and asked him if he needed help. (Doc. 47-1, 28:2-10). Plaintiff indicated that he did not need any assistance, and Defendant Simons left the area. (Id., 28:17-23). Suspicious of Plaintiff's placement of the Kroger ad over the DVDs, Defendant Simons went to the Store's video surveillance room so that he could monitor Plaintiff. (Doc. 62, 83:15-23). It took Defendant Simons between one and two minutes to walk to the video surveillance room, during which time Plaintiff was out of Defendant Simons' view. (Id., 92:18-93:4).
Using the cameras in the Store's video surveillance room, Defendant Simons worked to locate Plaintiff. He found him, but not the DVDs because they were no longer in Plaintiff's shopping cart. (Id., 95:19-97:3; id., 113:19-24). What Defendant Simons did see was Plaintiff adjust his sweatshirt, pulling it down and to the left. (Id., 133:22-134:4). Defendant Simonsinterpreted this as Plaintiff concealing the DVDs under his clothes. (Id., 113:19-115:1). Plaintiff, in contrast, testified that, before Defendant Simons saw him on the camera, he simply removed the DVDs from his shopping cart and continued shopping for groceries before checking out. (Doc. 47-1, 29:22-32:1).
Exiting the Store, Plaintiff did not set off the anti-theft alarm system, but Defendant Simons confronted him. (Id., 32:15-24; Doc. 62, 117:1-9). The parties disagree about the language Defendant Simons used to address Plaintiff. According to Plaintiff, Defendant Simons called out to him, saying, "Hey, brother," or "Hey, brother man," and "Let me get those DVDs under your hoodie." (Id., 32:25-33:7). Defendant, on the other hand, maintains that, while he addressed Plaintiff as "bro," he did not address him as "brother" or "brother man." (Doc. 62, 205:8-21).
Both parties agree that after Defendant Simons called out and asked Plaintiff about the DVDs, Plaintiff stopped and responded that he did not know what Defendant Simons was talking about. (Doc. 47-1, 34:15-35:17; Doc. 62, 198:15-199:19). Plaintiff then pointed to where he had parked. (Doc. 47-1, 38:5-25). Defendant Simons pursued Plaintiff to his car, threatening to call law enforcement. (Id., 39:1-16). According to Plaintiff, Defendant Simons was aggressive and confrontational in repeatedly accusing him of theft. (Doc. 73-1 at 3).
Again, the parties dispute what happened next. According to Defendant Simons, Plaintiff indicated that he would give Defendant Simons the DVDs at the car, (Doc. 62, 203:13-204:14), and, once they reached his car, Plaintiff removed DVDs from his clothing and placed them in the back seat, (id., 200:11-201:4). Plaintiff denies all of that, and he further asserts that Defendant Simons could not have seen any DVDs in his back seat because of where Defendant Simons was standing. (Doc. 73-1 at 3-4). Because Plaintiff believed he had done nothing wrong, he placed his groceries in the back seat and drove home. (Doc. 47-1, 41:25-43:8).
At home, Plaintiff unloaded the groceries and took a short bike ride with his wife. (Id., 44:3-22). Meanwhile, back at the Store, Defendant Simons reported Plaintiff's alleged theft to the Delaware Police Department. (Doc. 62, 226:19-227:13). Officer Dylan Griffin responded to Defendant's Simon's call, taking Defendant Simons' statement and reviewing the surveillance footage Defendant Simons chose to show him. (Doc. 73-1 at 10-13).
After Plaintiff returned home from the bike ride, Officer Griffin arrived at Plaintiff's house. (Doc. 47-1, 46:4-48:3). He approached Plaintiff and asked him if Plaintiff knew why he was there. (Id., 48:4-9). Plaintiff indicated that he did not. (Id.). They then discussed what had occurred at the Store. Officer Griffin asked Plaintiff where the DVDs from the Store were. (Id., 48:13-49:2). Plaintiff denied taking any DVDs from Kroger and offered to show Officer Griffin four old Blu-rays in his car—Creed, Neighbors 2, Angry Birds, and Minions. (Id., 49:3-50:19).
A second police officer, Officer William Eusey, then arrived. (Id., 51:9-17). After conferring with Officer Eusey, Officer Griffin placed Plaintiff under arrest and took him to the Delaware Police Station. (Id., 55:8-57:20). Law enforcement detained Plaintiff in a holding cell for roughly two hours. (Id., 66:12-18). While Plaintiff was detained, Officer Griffin prepared a Complaint, Summons, and Trespass Warning. (Doc. 73-1 at 11-12). The Complaint charged Plaintiff with petty theft. (Id. at 24). He prepared and served the Trespass Warning on Plaintiff at the request of Defendant Simon for a "[c]riminal [v]iolation" at the Store. (Doc. 72-8, ¶ 15; Doc. 73-1 at 12). Plaintiff asserts—and Defendants do not dispute—that the Trespass Warning bars Plaintiff from shopping at the Store.
Charged with theft, Plaintiff retained a criminal defense attorney. (Doc. 47-1, 67:25-68:22). After counsel provided the prosecutor with evidence that Plaintiff owned the DVDs hewas alleged to have stolen, (Doc. 73-1 at 42), the State moved to dismiss the case without prejudice for lack of sufficient evidence, (id. at 7).
Since Plaintiff's arrest, he has not shopped at the Store. (Doc. 45-1, 101:8-102:12). Instead, he drives "[a]cross town" to shop at a different Kroger. (Doc. 47-1, 123:21-124:15).
Plaintiff filed his Complaint (Doc. 1) on October 15, 2018. In his subsequent First Amended Complaint (Doc. 54), Plaintiff alleges that Defendants: (1) violated 42 U.S.C. §§ 1981 and 1982's prohibition on race discrimination in the making and enforcing of contracts, and in the purchasing of personal property; (2) violated the Ohio Civil Rights Act's prohibition on racial discrimination in places of public accommodation; (3) are liable for malicious prosecution; and (4) are liable for spoliation of evidence. Prior to filing dispositive motions, Defendants moved to seal certain exhibits. (Doc. 63). The parties filed cross-motions for summary judgment (Docs. 72-75). The Motion to Seal and Motions for Summary Judgment are fully briefed and ripe for resolution.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant has the burden of establishing that there are no genuine issues of material fact, which may be accomplished by demonstrating that the nonmoving party lacks evidence to support an essential element of its case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir. 1993). When the moving party has carried this burden, the nonmoving party must then set forth specific facts showing that there is a genuine issue for trial. Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009).
When a motion for summary judgment is unopposed, as is the case here, the court must"intelligently and carefully review the legitimacy of such unresponded-to motion" and may not "blithely accept the conclusions argued in the motion." Guarino v. Brookfield Tp. Tr., 980 F.2d 399, 407 (6th Cir. 1992). At the same time, "[n]othing in either the Rules or case law supports an argument that the trial court must conduct its own probing investigation of the record" to identify a genuine issue of material fact. Id. at 405.
The parties have filed cross-motions for summary judgment with...
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