Portentoso v. Kern, No. 3:07CV00914.

• Decision Date: 24 January 2008
• Docket Number: No. 3:07CV00914.
• Parties: Nicholas D. PORTENTOSO, et. al., Plaintiffs, v. Brian KERN, et. al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

532 F.Supp.2d 920

Nicholas D. PORTENTOSO, et. al., Plaintiffs, v. Brian KERN, et. al., Defendants.

No. 3:07CV00914.

United States District Court, N.D. Ohio, Western Division.

January 24, 2008.

Charles R. Hall, Jr., Tiffin, OH, for Plaintiffs.

Bruce D. Horrigan, Office of the Attorney General, Cleveland, OH, for Defendants.

ORDER

JAMES G. CARR, Chief Judge.

On March 28, 2007, Nicholas Portentoso filed a complaint on behalf of himself and his wife, Amy Portentoso. The Portentosos' claims arise from a search of their residence by members of the Seneca County District Office of the Ohio Adult Parole Authority ["the APA"] on July 19, 2006.¹ Named defendants include Parole Officers Brian Kern, Douglas Pummel, and Frances Shook; Senior Parole Officer Beverly Bradner; Parole Services Supervisor Jennifer Olsen; and the Ohio APA.

Pursuant to 42 U.S.C. § 1983, the Portentosos' first, third, and fourth claims for relief seek monetary damages for alleged violations of rights secured by the Fourth and Fourteenth Amendments of the U.S. Constitution. The plaintiffs essentially contend that the defendants lacked probable cause and conducted an illegal warrantless search of their residence, which resulted in the arrest, revocation, and subsequent incarceration of Mr. Portentoso.

Pursuant to 42 U.S.C. § 1367, plaintiffs also seek supplemental jurisdiction in this court to assert five state law claims arising from the same case or controversy: 1) negligence for conducting the search without probable cause; 2) failure to properly train and supervise officers; 3) false imprisonment; 4) civil conspiracy;. and 5) intentional infliction of emotional distress.

Defendants submit that the Portentosos should have brought the state law claims in the Ohio Court of Claims. Defendants also argue that I should deny the Portentosos' § 1983 claims on the merits. For the reasons that follow, I grant the defendants' motion to dismiss the Portentosos' state law claims for lack of jurisdiction and partially grant and partially deny the defendants' motion for summary judgment on the Portentosos' § 1983 claims [Doc. 34].

Facts

On March 9, 2005, a Seneca County Grand Jury returned a six count indictment against Mr. Portentoso for felonious criminal conduct occurring between February 7, 2003 and April 21, 2003. In November of the same year, Mr. Portentoso entered pleas of guilty to the amended first count of the indictment, attempted aggravated assault without a gun specification, and the fourth count, menacing by stalking. The criminal trial court filed an entry dismissing the remaining counts pursuant to the plea agreement.

On January 31, 2006, Seneca County Common Pleas Judge Steven Shuff sentenced Mr. Portentoso to five years of community control subject to the general supervision and control of the Ohio APA. Among other sanctions, Judge Shuff imposed a total of 120 days in jail, with credit for 48 days already served. Judge Shuff further notified Mr. Portentoso that a violation of the conditions of supervision would result in the imposition of concurrent sentences of eleven months on count one and seventeen months on count four.

On February 10, 2006, Mr. Portentoso signed a conditions of supervision form. Two months later, on April 13, 2006, he signed a second conditions of supervision form, which included more specificity with regard to his financial obligations. Both forms included the following stipulations:

6. I will not purchase, possess, own, use, or have under my control, any firearms, ammunition, dangerous ordnance or weapons, including chemical agents, electronic devices used to `immobilize, pyrotechnics and/or explosive devices.

* * * * * *

9. I agree to a search, without warrant, of my person, my motor vehicle, or my place of residence by a supervising officer or other authorized representative of the Department of Rehabilitation and Correction at any time. Notice: Pursuant to section 2967.131 of the Revised Code, Officers of the Adult Parole Authority may conduct warrantless searches of your person, your place of residence, your personal property, or any property which you have been given permission to use if they have reasonable grounds to believe that you are not abiding by the law or the terms and conditions of your supervision.

(Def.'s Mot. for Summ. J. [Doc. 34], Exs. E & F at ¶¶ 6 & 9 (emphasis in originals).)

On July 19, 2006, Senior Parole Officer Bradner received a phone call from Libra Martin of Crime Victim Services indicating that the Mr. Portentoso's child had advised his ex-wife that there were weapons in the Portentosos' barn. Ms. Olsen, Parole Services Supervisor, instructed Ms. Bradner and the other defendants to go to the residence and search for weapons. The APA officers, including four of the defendants, went to the residence where they searched the barn, kennels, other out-buildings, and the house. The officers found a BB gun — which is not a firearm — in the barn. Finding rounds of ammunition in the house, the officers arrested Mr. Portentoso.

The parties disagree as to whether Mr. Portentoso consented to the search of his property. According to Ms. Bradner, on explaining the' APA's purpose, Mr. Portentoso gave his verbal consent to search "wherever." (Dep. of Beverly Bradner [Doc. 30] at p. 10.) Defendants also claim that following discovery of the BB gun in the barn, Mr. Portentoso specifically consented to a search of the house. In contrast, the Portentosos allege that neither of them consented to a search of any building.

After arresting Mr. Portentoso, the officers transported him to the Seneca County Jail, where he began to complain of chest pains. As a result of these complaints, the Seneca County Sheriff transported Mr. Portentoso to Tiffin-Mercy Hospital. Parole Officers Shook and Kern accompanied Mr. Portentoso to the hospital because he had not yet been booked at the county jail. That evening, a private ambulance service transported him to Toledo-St. Vincent Hospital. Mr. Portentoso remained in APA custody at the hospital until the state court granted a recognizance bond on July 20, 2006.

On July 24, 2006, Mr. Portentoso received notice of the alleged supervision violations. Three days later, Senior Parole Officer Bradner completed a violation report, including a supervision history and recommendation that the court revoke community control and impose sentence. On January 5, 2007, on submission of written summations by the parties, Judge Sluff found Mr. Portentoso to be in violation of his conditional supervision and, on March 27, 2007, sentenced him to seventeen months in prison.

On May 3, 2007, Mr. Portentoso filed a motion for judicial release. On June 18, 2007, after serving 84 days of incarceration, the court granted the motion and placed Mr. Portentoso back in community control supervision.

Discussion

1. State Law Claims and the Eleventh Amendment

A. Standard of Review

The defendant individuals and APA request that I grant summary judgment to them on all of the claims. Their arguments for dismissal of the state law claims, however, amount to jurisdictional challenges. For this reason, I interpret them as a request for dismissal under Federal Rule of Civil Procedure 12(b)(1).² In the context of a Rule 12(b)(1) motion, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. Icing & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). A Rule 12(b)(1) motion to dismiss will be granted only if, taking as true all facts alleged by the plaintiff, the court is without subject matter jurisdiction to hear the claim.

B. Claims Against State Institutions and Employees Acting in Their, Official Capacities

Defendants assert that the Eleventh Amendment to the federal Constitution bars this court from hearing the Portentosos' state law claims.³ To obtain relief on the state claims, defendants argue that the Portentosos should bring theme in the Ohio Court of Claims pursuant to O.R.C. § 2743.02(A)(1). See Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347. 39 L.Ed.2d 662 (1974) ("[A] federal court's remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief."); O.R.C. § 2743.02 ("the state hereby waives its immunity from liability ... and consents to be sued, and have its liability determined, in the court of claims.").⁴

Absent an express waiver, the Eleventh Amendment bars all claims in federal court seeking retrospective monetary relief from the State's treasury. Edelman, supra, 415 U.S. at 677, 94 S.Ct. 1347. The Amendment is therefore implicated whenever a public agency or institution is a defendant. Its application generally turns on whether 1) the institution in question is an arm of the state or is instead a political subdivision of the state; and 2) any monetary judgment would be paid out of the state treasury. See Hutsell v. Sayre, 5 F.3d 996, 999 (6th Cir.1993).

The bar extends to actions where the State is not a named party, but where the action is essentially one for recovery of money damages from the State, including suits against state officials acting in their official capacities. Will v. Mich. Dept. of State Police, 491 U.S. 58, 70-71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); Hutsell, supra, 5 F.3d at 999 (6th Cir.1993); see also Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) ("[A] suit in federal court by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment."). It also extends to claims as to which a plaintiff asserts supplemental jurisdiction. Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 542, 122 S.Ct. 999, 152 L.Ed.2d 27 (2002) ("[W]e hold that § 1367(a)'s grant of jurisdiction does not extend to claims against non-consenting state defendants.")

Under O.R.C. §...