Morrison v. Horseshoe Casino

• Court: United States Court of Appeals (Ohio)
• Citation: 2020 Ohio 4131,157 N.E.3d 406
• Docket Number: No. 108644,108644
• Parties: Willie MORRISON, et al., Plaintiffs-Appellants, v. HORSESHOE CASINO, et al., Defendants-Appellees.
• Decision Date: 20 August 2020

157 N.E.3d 406
2020 Ohio 4131

Willie MORRISON, et al., Plaintiffs-Appellants,
v.
HORSESHOE CASINO, et al., Defendants-Appellees.

No. 108644

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: August 20, 2020

Alan I. Goodman, Cleveland, for appellants.

Thomas A. Skidmore Co., L.P.A., and Thomas A. Skidmore, Akron, for appellees Atlantis Security Company, Stephanie Maye, William Tell, Ed Schulte, and Kenneth Allen.

Perez & Morris, L.L.C., Andrew D. Wachtman, and Juan Jose Perez, Columbus, for appellees Rock Ohio Cleveland Caesars, L.L.C., The Horseshoe Casino, Joan Peloso, Steven Barnes, and Jason Arrington.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, A.J.:

{¶ 1} Plaintiffs-appellants, Willie Morrison ("Morrison") and Artesia Morrison ("Artesia") (collectively "the appellants"), appeal from the decision of the Cuyahoga County Common Pleas Court granting summary judgment in favor of defendants-appellees, Rock Ohio Caesars, L.L.C. ("Rock Ohio"), et al., and Atlantis Security Company ("Atlantis Security"), et al. The appellants raise the following assignments of error for review:

1. The trial court erred in finding Atlantis Security and its employees did not violate Morrison's constitutional rights.

2. The trial court erred in finding Atlantis Security and its employees were immune from liability pursuant to R.C. 2744.03(A)(6).

3. The trial court erred in dismissing [Rock Ohio] and its employees from liability because the casino's liability arises from the acts of Atlantis Security.

4. There being a question of fact as to whether Morrison's civil rights were violated, the lower court erred in dismissing the appellants' common law claims on the basis of qualified immunity.

{¶ 2} After careful review of the record and relevant case law, we affirm the trial court's judgment because the appellants' claims against the appellees fail as a matter of law.

157 N.E.3d 416

I. Procedural and Factual History

{¶ 3} This case arises out of an incident that occurred at the Horseshoe Casino, now known as Jack Casino (the "casino"), a private facility in Cleveland, Ohio that is owned by defendant Rock Ohio. On the date and times relevant to this case, defendants-appellees, Steven Barnes ("Barnes"), Joan Peloso ("Peloso"), and Jason Arrington ("Arrington"), were employed by Rock Ohio, and worked in the casino's security department.

{¶ 4} In 2012, the casino entered into a security agreement with Atlantis Security, "a contract security management service in Northeastern Ohio [that employs] primarily security officers and Cleveland police officers." On the date and times relevant to this case, defendants-appellees, Officers Stephanie Maye ("Officer Maye"), William Tell ("Officer Tell"), Kenneth Allen ("Officer Allen"), and Edward Schulte ("Officer Schulte") (together the "defendant officers"), were working secondary employment at the casino for Atlantis Security. The defendant officers are primarily employed by the city of Cleveland Police Department (the "CPD"). Upon receiving written permission from the chief of police and the director of public safety, the defendant officers are permitted to perform secondary employment in their police uniforms.

{¶ 5} On September 12, 2013, Morrison drove to the casino to meet a friend. Morrison arrived at the casino after midnight and parked his vehicle in the parking garage across the street from the casino. When Morrison exited his vehicle, he encountered an unidentified female. Video footage of the encounter was captured by the casino's surveillance cameras. The video footage reflects that Morrison briefly spoke to the female as he walked past her in the parking garage at approximately 1:04 a.m.

{¶ 6} After the conversation, the female walked to her vehicle and Morrison proceeded down the parking garage stairs to the street level. Thereafter, the female reported that she had been approached by a man with a gun on the second level of the parking garage. An incident report generated by the CPD's record-management system reflects that the police were contacted at 1:12 a.m. (the "CPD Incident Report"). The CPD Incident Report states that the purported suspect was described as a black male, who was approximately six-feet tall with a slender build. He was wearing an orange striped polo shirt, jeans, and an orange hat. The CPD Incident Report further indicates that the female expressed that she did not want to make a police report. Shortly thereafter, casino security, including the defendant officers, received a radio transmission that a suspect with a gun had approached a young woman in the parking deck across the street from the casino. Multiple on-duty units of the CPD were dispatched to the scene.

{¶ 7} As Morrison was standing with his friend on the street outside the parking garage, he noticed security guards, casino personnel, and police officers running across the street towards the parking garage. Once the officers ran into the parking garage, Morrison and his friend crossed the street and entered the casino.

{¶ 8} Upon entering the casino, Morrison and his friend went to the third floor of the casino. At approximately 1:26 a.m., Morrison was approached by a male and a female police officer. The female officer was identified as defendant Officer Maye. The male officer was identified as an on-duty police officer for the CPD. According to Morrison, one of the police officers ordered him to put his hands behind his back. Once detained, Morrison was placed in handcuffs by a third, unidentified on-duty

157 N.E.3d 417

police officer, and he was patted down for weapons. CPD Incident Report reflects that Morrison was in the "custody" of the on-duty police officers. No firearm was located on Morrison's person. Thereafter, Morrison was escorted out of the casino by approximately 14 uniformed officers and was placed in an on-duty police officer's patrol vehicle. Video footage of Morrison's detention inside the casino was captured by the casino's surveillance cameras.

{¶ 9} Morrison testified that the "officers who drove the squad car that detained [him]" informed him that he was under arrest. The officers then drove the patrol vehicle to the parking garage in an effort to locate the vehicle Morrison drove to the casino. The CPD Incident Report reflects that Morrison's vehicle was discovered on the second level of the garage. Morrison testified that the officer who drove the patrol car was the officer who initiated the search of his vehicle, although other officers subsequently participated in the search. Once the search of the vehicle was concluded, Morrison was informed that no weapon was found and that he was free to leave. Morrison was not charged with a criminal offense.

{¶ 10} In October 2016, Morrison and Artesia filed a complaint against the appellees, alleging causes of action for false arrest and detention, assault and battery, conversion, loss of consortium, violation of civil rights under 42 U.S.C. 1983, and violation of civil rights under 42 U.S.C. 1981.¹

{¶ 11} Following extensive discovery, the appellees filed separate motions for summary judgment in November 2017. In a joint motion for summary judgment, Atlantis Security and the defendant officers argued that the officers were entitled to summary judgment as a matter of law pursuant to the governmental immunity provision set forth under R.C. 2744.03(A)(6). The defendant officers maintained that, while engaged in secondary employment with Atlantis Security, they acted in good faith and within the scope of their official responsibilities as Cleveland police officers. Additionally, the defendant officers asserted that they are entitled to qualified immunity on the appellants' Section 1983 claim because their conduct "did not violate a clearly established federal right which a reasonable person would have known." In turn, Atlantis Security argued that it could not be held vicariously liable because "there are no acts of its agents or employees which give rise to any kind of liability."

{¶ 12} Relevant to this appeal, Atlantis Security and the defendant officers supported their motion for summary judgment with (1) a copy of the CPD Incident Report, (2) the affidavits of Officers Maye, Tell, and Allen, (3) an incident report generated by the casino, (4) the affidavit of Kevin Jaite, the senior vice-president of Atlantis Security, and (5) Morrison's deposition testimony.

{¶ 13} Defendants Rock Ohio, the Horseshoe Casino, Peloso, Barnes, and Arrington also filed a joint motion for summary judgment. Collectively, the casino defendants argued that they were entitled to judgment as a matter of law on each claim because the undisputed facts demonstrate that "no one employed by the casino, including the casino employee defendants," (1) "arrested or detained Mr. Morrison," (2) "touched, or threatened to touch, Mr. Morrison," or (3) "touched Mr. Morrison's vehicle." Rather, "all of the evidence submitted indicates that the actions taken against [Morrison] were performed by Cleveland police officers, over

157 N.E.3d 418

which the casino and its employees have no control." In support of their motion for summary judgment the casino defendants attached (1) Morrison's deposition testimony, and (2) the affidavits of Joan Peloso,...