Stone v. Holzberger

• Decision Date: 03 June 1992
• Docket Number: No. C-1-90-181.,C-1-90-181.
• Citation: 807 F. Supp. 1325
• Parties: Mignon Marie STONE, Plaintiff, v. Richard HOLZBERGER, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

807 F. Supp. 1325

Mignon Marie STONE, Plaintiff, v. Richard HOLZBERGER, et al., Defendants.

No. C-1-90-181.

United States District Court, S.D. Ohio, W.D.

June 3, 1992.

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Frederick Mason Morgan, Jr., Montgomery, Rennie & Jonson, Cincinnati, OH, for plaintiff.

Edward Ronald Goldman, Rendigs, Fry, Kiely & Dennis, Cincinnati, OH, James Henry Scheper, Baden, Jones, Scheper & Crehan, James Elder Michael, Jr., Millikin & Fitton Law Firm, Hamilton, OH, Leo Joseph Breslin, Lindhorst & Dreidame, Charles Matthew Roesch, Dinsmore & Shohl, Cincinnati, OH, David Gerard Torchia, Tobias & Kraus, Cincinnati, OH, for defendants.

ORDER

SPIEGEL, District Judge.

This matter is before the Court for consideration of eight separate motions. The Court conducted a hearing on these motions on April 30, 1992.

BACKGROUND

In May, 1987, Mignon Stone became romantically involved with Larry Jones. Ms. Stone and Mr. Jones eventually took up residence together. In April, 1989, they rented two television sets and a video cassette recorder from Rent-A-Center. Two months later, Mr. Jones illegally sold the televisions.

In the early morning of October 24, 1989, Mr. Jones left a bar with a Butler County woman, Janavie Mills. Ms. Mills was reported missing later that day, and, approximately ten days later, her decayed corpse was found bearing the marks of approximately eighty stab wounds. The Butler County Sheriff's Department considered Larry Jones the prime suspect in Ms. Mills' murder.

Meanwhile, Ms. Stone believed that authorities were searching for Mr. Jones in connection with the stolen Rent-A-Center televisions. For several weeks, Ms. Stone and Mr. Jones moved around, staying at various places in Hamilton, Ohio and Northern Kentucky.

On Tuesday, October 31, 1989, Ms. Stone learned that Mr. Jones was sought in connection with Ms. Mills' disappearance (Ms. Mills' body had not yet been discovered). Ms. Stone further learned that authorities wished to interview her as well. On Wednesday, November 1, 1989, Ms. Stone contacted Glen Ebbing to arrange a meeting with Butler County Sheriff Richard Holzberger. Mr. Ebbing is Ms. Stone's step-father, a retired City of Hamilton detective, and a long-time friend of Butler County Prosecutor John Holcomb.

Mr. Ebbing arranged for Ms. Stone, Mr. Jones and Sheriff Holzberger to meet at the Ebbing home on November 1, 1989. Mr. Jones declined to attend the meeting, but Ms. Stone met with Sheriff Holzberger anyway. When Sheriff Holzberger questioned Ms. Stone, she initially denied knowing Mr. Jones' whereabouts, even though she had been with him less than an hour before the meeting. When Ms. Stone indicated that she no longer wanted to speak to Sheriff Holzberger and that she wanted to leave, Sheriff Holzberger (assisted by Captain Richard Carpenter) arrested Ms. Stone. Ms. Stone was taken to the Butler County Jail and interrogated. She indicated that she did not wish to make a statement and was told she was under arrest as a material witness.

Ms. Stone remained in custody as a material witness without judicial review from the evening of November 1, 1989 until the late afternoon of November 6, 1989. On the afternoon of November 6, 1989, Ms. Stone was taken before Butler County Common Pleas Judge Moser. Judge Moser issued an "own recognizance" ("O.R.") bond permitting Ms. Stone's release.

Ms. Stone was escorted back to the Butler County Jail to retrieve her clothing and personal possessions. Ms. Stone identified a cocaine canister found at the murder scene as belonging to Mr. Jones. Apparently Sheriff Holzberger believed that Ms. Stone had not been completely candid during the six days of interrogation. He then contacted the prosecutor's office to see if he could continue to hold Ms. Stone as a material witness due to this allegedly new information. Prosecutor Holcomb informed the Sheriff that he could continue to hold Ms. Stone until the OR bond could be rescinded. By that time, it was late in the afternoon on November 6, 1989. The Butler County Court of Common Pleas was closed. Sheriff Holzberger directed his subordinates to retain Ms. Stone until court reconvened the next morning.

The next day, November 7, 1989, an assistant prosecutor engaged in an ex parte, in camera conference with Judge Moser. Ms. Stone was not present nor was she informed of the conference. As a result of that meeting, Judge Moser set aside the O.R. bond and issued a $50,000 surety bond. Ms. Stone was not served with the new order, nor was she informed of the $50,000 bond. Ms. Stone remained in custody at the Butler County Jail until November 20, 1989 (a total of nineteen days). She was paid the statutory rate of $25 per day. Larry Jones ultimately pled guilty to the murder of Janavie Mills.

On March 5, 1990, Ms. Stone initiated this action pursuant to 42 U.S.C. § 1983. She alleges various federal and state claims against Sheriff Holzberger, Richard Carpenter, Richard Sizemore, William Profitt and Terry Payer (collectively "the Sheriff's defendants"), Butler County Prosecutor John Holcomb, Butler County, Ohio, the City of Hamilton, Ohio, and Michael T. Gmoser, Esq. In addition, Prosecutor Holcomb filed a counter-claim alleging tortious interference with a business relationship.

On April 30, 1992, this Court heard oral arguments on eight motions currently pending in this matter. First, the City of Hamilton, Ohio filed a motion for summary judgment (doc. 58). At the hearing on April 30, 1992, the parties entered into a stipulation of dismissal of all claims against the City of Hamilton (doc. 155). Accordingly, the City of Hamilton's motion for summary judgment is hereby denied as moot.

Second, defendants Richard Holzberger, Richard Carpenter, Richard Sizemore, Charles Profitt and Terry Payer ("the Sheriff's defendants") filed a motion for summary judgment (doc. 60). The plaintiff responded in opposition to the motion (doc. 84 and doc. 89), and the Sheriff's defendants replied (doc. 104). For the reasons set forth below, the Sheriff's defendants' motion for summary judgment is hereby granted in part and denied in part.

Third, defendant Butler County, Ohio¹ filed a motion for summary judgment (doc. 65). The plaintiff responded (doc. 85), and Butler County replied (doc. 102). For the reasons set forth below, the motion for summary judgment on behalf of the Butler County Commissioners is hereby granted in part and denied in part.

Fourth, the plaintiff filed a motion for partial summary judgment against defendants Butler County and Richard Holzberger (doc. 67 and doc. 68). The defendants opposed the motion for partial summary judgment (doc. 81 and 82), and the plaintiff replied (doc. 105 and doc. 106). For the reasons set forth below, the plaintiff's motion for partial summary judgment against defendants Butler County (or the Butler County Commissioners) and Sheriff Holzberger is hereby granted in part and denied in part.

Fifth, defendant Michael Gmoser filed a motion for summary judgment (doc. 73 and doc. 113). The plaintiff opposed the motion (doc. 83 and doc. 88), and Mr. Gmoser replied (doc. 99). For the reasons set forth below, defendant Michael Gmoser's motion for summary judgment is hereby denied.

Sixth, the plaintiff filed a motion to dismiss the counterclaim of defendant Prosecutor John Holcomb (doc. 92). Prosecutor Holcomb opposed the motion (doc. 100), and the plaintiff replied (doc. 112). For the reasons set forth below, the plaintiff's motion to dismiss is hereby granted.

Seventh, defendant Prosecutor John Holcomb filed a motion to dismiss or in the alternative for summary judgment (doc. 107). The plaintiff opposed the motion (doc. 117), and Prosecutor Holcomb replied (doc. 122). For the reasons set forth below, Prosecutor Holcomb's motion to dismiss or for summary judgment is hereby granted.

Eighth, the plaintiff filed a motion to substitute the Butler County Board of County Commissioners in place of defendant Butler County (doc. 118). Defendant Butler County opposed the motion (doc. 123), and the plaintiff replied (doc. 124). For the reasons set forth below, the plaintiff's motion for substitution is hereby granted.

STANDARD OF REVIEW

The narrow question that we must decide on a motion for summary judgment is whether there is "no genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court cannot try issues of fact on a Rule 56 motion, but is empowered to determine only whether there are issues to be tried. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). The moving party "has the burden of showing conclusively that there exists no genuine issues as to a material fact and the evidence together with all inferences to be drawn therefrom must be read in the light most favorable to the party opposing the motion." Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.) (emphasis original), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). And, "while the movant's papers are to be closely scrutinized, those of the opponent are to be viewed indulgently." Id. at 63. "The District Court is obligated to consider not only the materials specifically offered in support of the motion, but also all `pleadings, depositions, answers to interrogatories, and admissions' properly on file and thus properly before the court." Id. (quoting Fed. R.Civ.P. 56(c)).

Summary judgment "must be used only with extreme caution for it operates to deny a litigant his day in court." Id. The Supreme Court elaborated upon this standard, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), as follows:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of

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