Mishak v. Serazin
| Decision Date | 30 October 2018 |
| Docket Number | CASE NO: 1:17CV1543 |
| Parties | MATTHEW A. MISHAK, Plaintiff, v. SCOTT F. SERAZIN, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OPINION & ORDER
This case is before the Court upon consent of the parties, entered October 10, 2017. (Doc. No. 20.) Currently pending is Defendants City of Elyria and Scott Serazin's Motion for Summary Judgment. (Doc. No. 46.) Plaintiff Matthew Mishak filed a Brief in Opposition on August 1, 2018, to which Defendants replied. (Doc. Nos. 60, 63.) In addition, after receiving permission from the Court, Plaintiff filed a Sur-Reply on August 21, 2018, to which Defendants responded on September 4, 2018. (Doc. Nos. 65, 67.)
For the following reasons, Defendants' Motion for Summary Judgment (Doc. No. 46) is GRANTED as to Mishak's federal claims. The Court declines to exercise supplemental jurisdiction over Mishak's state law claims for defamation, invasion of privacy (false light), malicious prosecution, disability discrimination, and retaliation, and hereby dismisses said claims without prejudice.
On July 21, 2017, Plaintiff Matthew Mishak ("Plaintiff" or "Mishak") filed a pro se Complaint in this Court against Defendants Scott F. Serazin (Office of the Elyria Law Director, in his individual and official capacities) and the City of Elyria, alleging various state and federal claims arising from his demotion and eventual termination as prosecutor for the City of Elyria. (Doc. No. 1.) Defendants filed an Answer and Partial Motion for Judgment on the Pleadings on September 8, 2017. (Doc. Nos. 10, 11.)
Mishak thereafter retained counsel and filed his First Amended Complaint on September 22, 2017. (Doc. No. 13.) The First Amended Complaint asserted the following 12 claims: (1) defamation per se - libel and slander (Count 1); (2) invasion of privacy- false light (Count 2); (3) malicious prosecution under 42 U.S.C. § 1983 (Count 3); (4) abuse of process under 42 U.S.C. § 1983 (Count 4); (5) state and federal disability discrimination claims based upon alleged failure to accommodate (Counts 5 and 6); (6) state and federal disability discrimination claims based upon alleged disparate treatment (Counts 7 and 8); (7) state and federal retaliation claims (Counts 9 and 10); (8) retaliation claim under the Family & Medical Leave Act (Count 11); and (9) loss of employment under 42 U.S.C. § 1983 (Count 12).
On October 3, 2017, Defendants filed a "Motion for Partial Judgment on the Pleadings responsive to the Amended Complaint," in which they sought judgment in their favor with respect to six of Mishak's twelve claims.1 (Doc. No. 16.) Mishak filed a Brief in Opposition on October 17, 2017, to which Defendants replied. (Doc. Nos. 23, 25.)
On February 7, 2018, this Court issued a Memorandum Opinion & Order granting in part and denying in part Defendants' Motion. (Doc. No. 26.) Specifically, the Court granted Defendants' motion with respect to Mishak's abuse of process (Count Four) claim and denied the motion with respect to his invasion of privacy- false light (Count Two) and disparate treatment claims (Counts Seven and Eight). In addition, the Court denied Defendants' motion with respect to Mishak's federal malicious prosecution claim (Count Three) without prejudice. (Doc. No. 26 at 10-11.) With respect to this claim, the Court explained:
The Court finds it would be appropriate to dismiss Mishak's Section 1983 malicious prosecution claim without prejudice. Mishak argues, and Defendants do not contest, there remains the potential a malicious prosecution claim might exist depending on the outcome of the Ohio Auditor's investigation. Under these circumstances, the Court finds it would be premature to dismiss this claim without permitting Mishak an opportunity to seek leave to amend his First Amended Complaint once the investigation is concluded.
(Id. at 10-11.)
Shortly thereafter, on February 10, 2018, Mishak filed a Motion for Leave to File Second Amended Complaint Instanter. (Doc. No. 27.) Therein, Mishak sought leave to add claims for malicious prosecution under both state and federal law "because those claims have now become ripe due to the Ohio State Auditor dismissing its investigation against him on November 28, 2017." (Id. at 1.) Defendants filed a Brief in Opposition on February 26, 2018, to which Mishak replied. (Doc. Nos. 28, 31.)
On March 19, 2018, this Court issued an Order granting in part and denying in part Mishak's Motion, as follows:
The Court GRANTS Plaintiff's Motion for Leave to Amend with respect to his (1) malicious prosecution claim under Ohio law; and (2) malicious prosecution claim under federal law to the extent it is premised on a violation of the Fourteenth Amendment. The Court DENIES Plaintiff's Motion for Leave to Amend with respect to his federal malicious prosecution claim to the extent it is premised on a violation of the Fourth Amendment.
(Doc. No. 35 at 18.) Mishak thereafter filed a Second Amended Complaint adding the above claims. (Doc. No. 36.) Defendants filed an Answer on March 29, 2018. (Doc. No. 37.)
On July 2, 2018, Defendants filed a Motion for Summary Judgment as to all of Mishak's claims. (Doc. No. 46.) Mishak filed a Brief in Opposition on August 1, 2018, to which Defendants replied. (Doc. Nos. 60, 63.) In addition, after receiving permission from the Court, Mishak filed a Sur-Reply on August 21, 2018, to which Defendants responded on September 4, 2018. (Doc. Nos. 65, 67.)
This matter is now fully briefed and ripe for consideration.
Mishak and Serazin met and became friends when they both worked at the Lorain County Prosecutor's Office from approximately 2006 to 2011. In 2011, Serazin ran for Elyria Law Director and Mishak assisted with his campaign. Serazin won the election and became Elyria Law Director in January 2012. He appointed Mishak as Elyria Chief Prosecutor. According to Mishak, during this time period, he spoke generally with Serazin about the fact that he suffered from Attention Deficit Hyperactivity Disorder ("ADHD"). (Doc. Nos. 51, 52, Mishak Depo. at Tr. 157-160.)
It is undisputed there were no problems or issues relating to Mishak's job performance until July 2013. At that time, Serazin disapproved of Mishak's handling of a misdemeanor criminal case. Specifically, Serazin accused Mishak of inappropriately asking a local judge who was not assigned to the case to issue a search warrant. The incident was reported in a newspaper article in the Elyria Chronicle Telegram, which was titled "Prosecutor accused of search ruse."2 According to Mishak, Serazin failed to take into account various extenuating circumstances, including that the assigned judge was out of town when newly discovered information arose. In December 2013, Mishak was demoted from the Chief Prosecutor position.
Several other incidents occurred between 2014 and 2016 that generated friction between the two men. For example, in 2013 and 2014, Mishak made multiple requests to attend seminars related to drones, which Serazin denied. Serazin was "not pleased" because he felt the seminars were relevant only to Mishak's private drone business;3 whereas, Mishak contended the seminars related to the effect of drones on municipal law. Later, in February 2015, Serazin became upset over Mishak's handling of a civil contempt matter. Serazin felt Mishak failed to promptly address the matter and was "surprised and embarrassed" when the judge assigned to the case called Serazin to ask why the City had not responded to a pending motion in that case. The following month, Serazin accused Mishak of improperly issuing a "legal opinion" to a local school board that concluded he (Mishak) was not precluded from serving on the board by virtue of the fact he was a prosecutor. (Doc. No. 53 at PageID#1306; Mishak Depo. at Exh. Q.) Mishak contends he merely wrote a "memo" about the issue that was intended only for Serazin's review and comment. (Doc. No. 51, Mishak Depo. at Tr. 98-101.) Serazin issued a written reprimand to Mishak in July 2015. (Doc. No. 49 at PageID# 872-874; Serazin Depo. Exh. 7.)
The relationship between Mishak and Serazin continued to deteriorate. In November 2015, Serazin intervened when Mishak planned to sign, file, and serve new charges in an income tax case on the day of a hearing set in that matter. Serazin felt Mishak's actions violated his office's policy against municipal prosecutors signing criminal charges. (Id.) Several months later, in March 2016, Serazin objected to Mishak's handling of a bond revocation hearing. In July 2016, Serazin accused Mishak of being involved in the unauthorized dyeing of the Ely Square water fountain in Elyria. (Doc. No. 49 at PageID#910-914; Serazin Depo. Exhs. 11, 12.)
However, the most serious problem that arose between Mishak and Serazin related to Mishak's billing for the Village of Grafton. Upon assuming office as the Elyria Law Director in 2012, Serazin allowed Mishak to serve as prosecutor for the Village of Grafton. Subsequently, in May 2014, Serazin issued a written policy that provided as follows:
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