Swales v. Township of Ravenna, 5:95 CV 2115.

• Decision Date: 20 October 1997
• Docket Number: No. 5:95 CV 2115.,5:95 CV 2115.
• Citation: 989 F.Supp. 925
• Parties: Kelly SWALES, et al., Plaintiffs, v. TOWNSHIP OF RAVENNA, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

989 F.Supp. 925

Kelly SWALES, et al., Plaintiffs, v. TOWNSHIP OF RAVENNA, et al., Defendants.

No. 5:95 CV 2115.

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

October 20, 1997.

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Lawrence A. Sutter, Thomas P. Mannion, Reminger & Reminger, Clevand, OH, Joseph Giulitto, Paula C. Giulitto, Giulitto & Berger, Ravenna, OH, for Plaintiffs.

Randolph L. Snow, Thomas W. Conners, Black, McCuskey, Souers & Arbaugh, Canton, OH, for Defendants.

ORDER

SAM H. BELL, District Judge.

I. INTRODUCTION

Now before the court is a motion for summary judgment filed by Defendants Township of Ravenna, Ravenna Township Police Department, and Larry Carver. (Docket # 32.) Plaintiffs Kelly and David Swales filed this action against Defendants pursuant to 42 U.S.C. § 1983 and Ohio state law. Defendants argue that there are no genuine issue of material fact in this case, and that they are entitled to judgment as a matter of law. For the reasons that follow, the court agrees, but only in part. Consequently, the court shall grant Defendants' motion in part and deny it in part. This court has jurisdiction under 28 U.S.C. §§ 1331 and 1367.

II. BACKGROUND

This case arises out of a series of events that took place in 1994 at 4361 Skeels Road in Ravenna, Ohio. In 1994, the Ravenna Township Police Department (the "RTPD") received numerous complaints about drug activity at a residence at that address. Consequently, in June 1994, they began an investigation of these complaints and placed the residence under surveillance. The surveillance over the next four months did not occur without incident. For example, the police were subject to gunfire originating from the residence. (Carver Aff. ¶ 5.) In addition, the police learned that at least one other individual had also been fired upon during the surveillance period. (Id. ¶ 6.)

As part of their ongoing investigation, on September 25, 1994, the RTPD arranged an undercover drug buy at a residence two blocks away belonging to Ron Kenney. During the buy, Kenney bicycled to the Skeels Road residence, and returned back to his residence before delivering eight rocks of cocaine to the undercover police officers. (Id. ¶¶ 7-8.) With the help of a confidential informant ("CI"), the police then arranged to make a second undercover buy at the Skeels Road residence on the evening of October 1. That night, the CI approached the residence while accompanied by an undercover police officer. After a brief argument at the door to the residence, the CI was slapped in the face by an occupant named Keith Watts. Thereafter, the CI swore out a criminal complaint against Mr. Watts, asserting that Watts had committed a misdemeanor assault of the first degree. In response to the complaint, officers immediately requested that a judge issue an arrest warrant for Watts. In addition, they went to the home of the municipal court clerk in order to take her to the court to process the warrant. (Id. ¶¶ 9-12.)

After securing the warrant for Watts' arrest, approximately ten officers, including RTPD Chief Larry Carver, arrived at the Skeels Road residence to execute the warrant. When they arrived, the officers observed a number of people standing around a bonfire in the front yard. They also observed a number of others running from the house and discarding drugs and drug paraphernalia. (Id. ¶ 15.) Watts himself ran into the house. (Id. ¶ 16.) Consequently, Chief Carver, along with two other officers, followed him inside and placed him under arrest. (Id. ¶ 17.) Chief Carver then instructed officers to search each person on the premises for weapons and check each person for any outstanding arrest warrants. (Id. ¶ 19.) He further instructed that any persons who were not carrying weapons and who had no outstanding warrants were to be released. (Carver Dep. at 79.)

Minutes before the officers had returned to execute the warrant, Kelly and David Swales had arrived at the Skeels Road residence in a pickup truck. (Kelly Swales Aff. ¶ 4.) Ms. Swales had previously been seen at the residence during the period of surveillance. As part of the initial search of all those on the premises, Ms. Swales was told to remove her jacket and empty out all of her belongings from the jacket's pockets. (Id. ¶ 7.) A RTPD officer next searched her cigarette case, and other belongings emptied from her pockets, for contraband such as weapons and drugs. (Id. ¶ 8.) The officer found no contraband, and returned the case to Ms. Swales. Ms. Swales then sat on a bench, as instructed, and placed her cigarette case beside her. (Id. ¶ 9.) Subsequently, an unknown male picked up the case, opened it, and removed a cigarette before being instructed by an officer to put the cigarette down. (Id. ¶ 14.) The male then replaced the cigarette in the case and put it back on the bench where he had found it. (Swales Dep. at 40, 42.)

After they were found not to be the subject of any outstanding warrants, Plaintiffs were told that they were free to go. (Id. ¶ 11.) As she was leaving, Ms. Swales left her cigarette case on the bench. (Id. ¶ 12.) An officer reminder reminded her to take the case with her, and Ms. Swales returned to the bench to pick it up. Before she could leave, however, a second officer insisted that the case be searched again. (Id. ¶ 18.) Upon searching the case, the officer found a small rock wrapped in cellophane. Despite Ms. Swales' protests to the contrary, no officer conducted a field test of the suspect rock. (Id. ¶ 19.) Furthermore, no officer made an attempt to identify the male who had handled the case during the period between the searches. (Id. ¶ 15.) Ms. Swales was subsequently placed under arrest. (Kelly Swales Dep. at 51-53.)

After Ms. Swales was placed under arrest, RTPD Officer Michelle Nevling conducted a second search of her person. (Id. at 48.) Officer Nevling was called to the scene by her husband Officer Robert Nevling, at the direction of Chief Carver. (Nevling Dep. at 85.) In describing the reason for calling his wife to the scene to conduct the search, Robert Nevling declared that his wife's presence was consistent with the RTPD practice of having female officers do "Terry" searches of female suspects. (Id. at 83.) This second search included "remov[ing] [Ms. Swales'] coat, pull[ing] her clothing away from her body, remov[ing] her socks and shoes and [allowing Michelle Nevling] ... to examine her hair, head, ears, arms, legs and torso for drugs[.]" (Kelly Swales Aff. ¶ 23.)

After finding the rock, the officers requested Ms. Swales' permission to search a purse belonging to her in the pickup truck in which she arrived. (Nevling Dep. at 92.) They then proceeded to search both the truck and the purse contained therein. In collecting evidence, the officers found a film canister that appeared to contain cocaine powder residue. (Id. at 94.) Ms. Swales was then taken to the Portage County Jail, where she was booked, strip searched, and held until October 3, 1994. (Kelly Swales Aff. ¶ 9; Kelly Swales Dep. at 68-69.)

That same night, the police also took custody of the Swales' pick-up truck. Lamont Marshall, who appeared to the officers to own the property on which the truck was parked, had demanded that David Swales remove the vehicle. (Carver Dep. at 130.) In response to Mr. Marshall's demand, RTPD officers informed Mr. Swales that he could not leave the truck on the premises. Because they believed Mr. Swales to be under the influence of drugs and thus incapable of safely operating the truck, the officers gave him a choice. He could either arrange to have his truck towed, or a RTPD officer could drive the truck to a location from which the Swales could recover it at a later time. Given this choice, Mr. Swales agreed that the officers could drive the truck away from the property. (Id. at 121.) On October 2, 1994, Chief Carver decided formally to confiscate the truck. He soon changed his mind, however, and left the paperwork for the confiscation incomplete. (Carver Aff. ¶ 30; Carver Dep. at 123.) Nevertheless, on October 3, 1994, RTPD officers informed the Swales that they would not be able to recover the truck on that day without proof of ownership and insurance. (Carver Aff. ¶ 32; Swales Aff. ¶ 27.) Plaintiffs did not recover the truck until November 25, 1994. (Id. ¶ 30.)

During the period the RTPD held the truck, the Swales were stopped two more times by RTPD officers. (Kelly Swales Dep. at 118, 129, 131.) During a stop on October 20, 1994, in which Chief Carver participated, Ms. Swales consented to a search of her automobile. (Id. at 129.) The search revealed two rocks which were subsequently determined to be cocaine. (Carver Dep. at 145.) In addition, on at least three separate occasions during that period, the Swales cooperated with the RTPD by serving as confidential informants. On two of those occasions, the Swales participated in drug buys for the RTPD. (Kelly Swales Aff. ¶¶ 43-45.) On a third occasion, Ms. Swales attended a party at which underage drinking was suspected, and assisted the officers in their investigation by confirming that such drinking, along with drug use, had in fact occurred. (Id. at 46.)

III. SUMMARY JUDGMENT

In LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993), the Sixth Circuit Court of Appeals summarized the standard of review governing motions for summary judgment under Federal Rule of Civil Procedure 56:

Summary judgment is appropriate where "there is no genuine issue of material fact ... and the moving party is entitled to judgment as a matter of law." ... [The] court must view all facts and inferences drawn therefrom in the light most favorable to the nonmoving party.

The moving party has the burden of conclusively showing that no genuine issue of material fact exists. Nevertheless, in the face of a summary judgment motion, the nonmoving party cannot rest on its...