Jordan v. Howard, 29190
| Decision Date | 12 November 2021 |
| Docket Number | 29190 |
| Parties | SABRINA JORDAN, EXECUTRIX Plaintiff-Appellant v. JOHN HOWARD, et al. Defendants-Appellees |
| Court | Ohio Court of Appeals |
2021-Ohio-4025
SABRINA JORDAN, EXECUTRIX Plaintiff-Appellant
v.
JOHN HOWARD, et al. Defendants-Appellees
No. 29190
Court of Appeals of Ohio, Second District, Montgomery
November 12, 2021
Civil Appeal from Common Pleas Court Trial Court Case No. 2021-CV-927
JACQUELINE GREEN, Atty. Reg. No. 0092733, M. CAROLINE HYATT, Atty. Reg. No. 0093323, and SARAH GELSOMINO, Atty. Reg. No. 0084340, Attorneys for Plaintiff-Appellant
KELLY M. SCHROEDER, Atty. Reg. No. 0080637, Attorney for Defendants-Appellees
OPINION
WELBAUM, J.
{¶ 1} Plaintiff-Appellant, Sabrina Jordan, Administrator of the Estate of Jamarco McShann ("Jordan") appeals from the dismissal of her case against Defendants-Appellees, John Howard and Jerry Knight (collectively, "Defendants"). Jordan had sued Howard and Knight, two City of Moraine Police officers, based on their involvement in the shooting death of McShann. Previously, Jordan had sued these officers, and others, in federal district court.
{¶ 2} According to Jordan, the trial court erred in dismissing her claims under Civ.R. 12(B)(6), based on collateral estoppel and because they were time-barred. After considering the issues, we find no error on the trial court's part. Jordan's claims for negligence/recklessness, assault and battery, civil conspiracy, and survivorship were barred because Jordan failed to refile those claims in state court within the time prescribed by 28 U.S.C. 1367(d) or by R.C. 2305.19(A), after they were dismissed by the federal district court.
{¶ 3} Furthermore, the trial court correctly found that Jordan's remaining claim for wrongful death was barred by issue preclusion, i.e., by the collateral estoppel effect of the federal court action. Specifically, the federal district and appellate courts found that the police officers acted reasonably to stop a serious threat of deadly force and did not violate clearly established law. The state court claim for wrongful death involved the same parties, and the same evidence would sustain the issues involved in both proceedings. As a result, collateral estoppel applied and prevented Jordan from relitigating her claim in state court. Accordingly, the trial court's judgment will be affirmed.
I. Facts and Course of Proceedings
{¶ 4} Because this matter was dismissed under Civ.R. 12(B)(6), we will assume that the allegations in the complaint are true. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532 N.E.2d 753 (1988).
{¶ 5} According to the complaint, "[o]n October 20, 2017, at approximately 5:15 a.m., Jamarco McShann was sleeping in a lawfully parked car located at the Valleyview Apartments in Moraine, Ohio. Defendant Jerry Knight arrived at the Valleyview Apartments in response to a complaint regarding a vehicle with loud noise in the parking lot. Defendant Officer John Howard also responded to Valleyview Apartments. Although Officer Michael Cornely knew two Moraine Police officers already responded, he too went to the Valleyview Apartments in response to the loud music call. Once the three officers were on the scene, they approached Jamarco's vehicle. Inside, the officers saw Jamarco asleep in the drivers' seat. They did not know who he was. They also claimed that they saw a gun in the car." Complaint (March 9, 2021), ¶ 6-11.
{¶ 6} "Ohio is an open-carry state. Ohio law permits carrying weapons and does not per se prohibit extended capacity magazines. Ohio concealed handgun licenses allow loaded handguns inside vehicles and permit drivers to transport or have a loaded handgun on or about their person. * * * Jamarco remained asleep in the car. He did not pose any threat of death or serious physical harm to the Defendant Officers or to any other person. Defendants decided they would attempt to wake Jamarco." Id. at ¶ 12-14.
{¶ 7} "The officers decided to run the plates on the car, which came back registered to a woman in the apartment complex. They decided to try to find her because
it would have been helpful and less startling for a familiar person to wake Jamarco. They sent Cornely to knock on her door. While they waited for Cornely to return, Knight and Howard milled around a tree. No one answered the door, and Cornely returned alone. Howard decided to place stop sticks around the vehicle to prevent it from moving, and Knight moved his cruiser to shine his spotlight onto Jamarco's car." Id. at ¶ 15-17.
{¶ 8} "Even though they were addressing a minor complaint for noise, though gun possession is legal in Ohio, and though Jamarco had engaged in no conduct that suggested he presented a threat of any kind, Defendant Officer Howard asked the Moraine Police dispatcher to contact officers at the Moraine Police station for additional help. Jamarco remained asleep in the car. Howard, Knight, and Cornely continued to mill about on the apartment grounds, without bothering to watch Jamarco or his car, as they waited." Id. at ¶ 18-19.
{¶ 9} "Moraine officers O'Neal and Eller arrived next. Up to this point in time, Defendants and their fellow officers did not attempt to provide any medical aide [sic] to Jamarco, did not check for breathing, and did not attempt to wake him. Eller stayed on the apartment grounds, while Defendant Howard ordered the other officers to take designated places surrounding the car, where Jamarco slept. Nearly thirty minutes after arriving on scene, without any legitimate reason to rush or engage in aggressive policing, Defendant Howard ordered his fellow officers to take tactical positions with their weapons drawn." Complaint at ¶ 20-23.
{¶ 10} "Defendant Howard positioned himself on the curb at the rear windshield of the car. Officer Cornely was positioned near the front passenger's window. O'Neal stood by the driver's window holding a ballistic shield, and Defendant Knight stood behind
O'Neal. All the officers pointed their guns at Jamarco, who had not moved and was still asleep. As the officers took positions around the car, DaShelle Sparks, Jamarco's fiancée, approached. She had been at her cousin's apartment nearby when Cornely knocked on her door, and when a neighbor told her about the situation outside, * * * she headed to the area with her cousin. She saw police around her car. DaShelle told police that she owned the car and her son's father was inside." Id. at ¶ 24-26.
{¶ 11} "Eller approached DaShelle, pointed his gun in her face, and ordered her to put up her hands or he would shoot. DaShelle complied and took a couple steps back. None of the officers - including Howard, who had taken charge of the scene, and Knight, who became the person to initiate contact with McShann - stopped the process of surrounding the car to allow DaShelle to approach. None of the officers even attempted to call off the approach in order to have DaShelle approach Jamarco to wake him. With nothing but a noise complaint, a sleeping man, and the alleged gun in the car to justify their conduct, Defendants and their fellow officers took action. Defendant Knight knocked at the rear driver's side window behind Jamarco's head, and at the same time, all the officers started screaming in a cacophony of competing commands." Id. at ¶ 27-29.
{¶ 12} "Jamarco sat up, startled, and put his hands in the air. He did not present a threat of any kind. Seconds later, Defendant Knight fired his pistol and then Defendant Howard pulled the trigger on his shotgun. Knight fired seven times and Howard fired twice. Their bullets pierced Jamarco's body all over, killing him. Jamarco McShann did not pose a threat of death or serious physical harm at the time Defendants Howard and Knight killed him. * * * Though Detective Eller requested medics as soon as shots were
fired, miscommunication between Eller, Defendant Officers, the dispatch officer, and the Moraine Fire Department EMS caused the delay of life-saving measures by EMTs who were moments away, awaiting authorization to enter the scene. * * * When EMTs finally arrived to treat Jamarco, he was pronounced dead on the scene." Id. at ¶ 30-35.
{¶ 13} The complaint further alleged that "[t]he Defendant Officers jointly agreed and/or conspired with one another to prepare false, misleading, and incomplete official reports and to give false, incomplete, and misleading versions to their supervisors and to the public. In order to cover up their misconduct, they falsely claimed that Jamarco McShann placed them in imminent fear of bodily harm." Id. at ¶ 37.
{¶ 14} Based on these allegations, Jordan asserted state claims for "negligence -reckless conduct," assault and battery, civil conspiracy, survivorship, and wrongful death. Id. at p. 8-10. The complaint also noted that Jordan had previously filed suit against Defendants and other officers in the United States District Court on March 20, 2018, and had asserted federal civil rights claims and state claims. Id. at ¶ 46. In addition, the complaint stated that after Jordan had dismissed all claims against Eller, the remaining defendants (Howard, Knight, Cornelly, and O'Neal), had filed summary judgment motions. Id.
{¶ 15} On February 18, 2020, the federal district court granted summary judgment to the remaining defendants other than O'Neal, to whom Jordan had given a notice of dismissal. Id.; Jordan v. Howard, 440 F.Supp.3d 843, 857 (S.D.Ohio 2020) (Jordan I). The court also declined to exercise supplemental jurisdiction over the state law claims and dismissed them without prejudice. At that point, Jordan appealed to the Sixth Circuit Court of Appeals, which affirmed the district court's judgment on February 3, 2021.
Jordan v. Howard, 987 F.3d 537 (6th Cir.2021) (Jordan II). The Sixth Circuit Court of Appeals also denied Jordan's petition for rehearing en banc on March 8, 2021. Jordan then filed the current state court action against only Howard and Knight on March 9, 2021.
{¶ 16} On April 9, 2021, Defendants filed a motion to dismiss the complaint and attached...
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