Yatsko v. Graziolli
| Decision Date | 01 May 2020 |
| Docket Number | Case No. 1:18-CV-814 |
| Citation | 458 F.Supp.3d 702 |
| Parties | Melissa YATSKO, et al., Plaintiffs, v. Sergeant Dean GRAZIOLLI, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
Jeremy A. Tor, Nicholas A. DiCello, Spangenberg, Shibley & Liber, Cleveland, OH, for Plaintiffs.
David M. Leneghan, K. Scott Carter, Law Office of David M. Leneghan, Independence, OH, for Defendant Sergeant Dean Graziolli.
Janeane R. Cappara, Office of the Prosecuting Attorney - Cuyahoga County, Michael Joseph Pike, City of Cleveland Department of Law, Cleveland, OH, for Defendant City of Cleveland.
Patrick M. Roche, Collins, Roche, Utley & Garner, Westlake, OH, for Defendants MRN Investment Group, LLC, MRN Enterprises, LLC, MRN Development Corporation, Corner Alley, LLC, Corner Alley Uptown, LLC, Corner Alley Fourth Limited Partnership.
Joseph Monroe, II, Thomas J. Cabral, Gallagher Sharp, Cleveland, OH, Patrick M. Roche, Collins, Roche, Utley & Garner - Westlake, Westlake, OH, for Defendant MRN Limited Partnership.
Joseph Monroe, II, Thomas J. Cabral, Gallagher Sharp, Cleveland, OH, for Defendant 629 Euclid Ltd.
Before the Court are four Motions for Summary Judgement. Docs ##:81, 66, 73, 89. As an initial matter, Plaintiffs, in their brief in opposition to summary judgement, move to dismiss Defendants MRN Group, LLC; MRN Investment Group, LLC; MRN Enterprises, LLC; MRN Development Corporation; Corner Alley, LLC; and Corner Alley Fourth Limited Partnership. Doc #: 85 at 69. Accordingly, those Defendants are DISMISSED .
As a result of the above dismissal, the pending Motions for Summary Judgement are filed by Defendant Sergeant Dean Graziolli ("Graziolli"), Doc #: 81, Defendant City of Cleveland, Doc #: 66, Defendant Corner Alley Uptown, LLC ("Corner Alley"), Doc #: 73, and Defendants 629 Euclid Lld. and MRN Limited Partnership (collectively the "Corporate Defendants"), Doc #: 79.
For the following reasons Graziolli's Motion for Summary Judgement, Doc #: 81 , is GRANTED IN PART and DENIED IN PART ; The City of Cleveland's Motion for Summary Judgement, Doc #: 66 , is GRANTED ; Corner Alley's Motion for Summary Judgement, Doc #: 73 is GRANTED IN PART and DENIED IN PART ; and the Corporate Defendants’ Motion for Summary Judgement, Doc #: 79 , is GRANTED IN PART and DENIED IN PART .
Graziolli shot and killed Thomas Yatsko while working as a security guard at the Corner Alley Uptown in University Circle ("Corner Alley Uptown"). This is one of the few material facts not in dispute. The remaining material facts revolve around two events: (A) Graziolli becoming employed at Corner Alley Uptown and (B) the fights that lead to Yatsko's death. In the following recitation, the facts are presented in a light most favorable to Plaintiffs, the nonmoving party.
Jonathan Seeholzer is, and at all relevant times was, the director of restaurant operations over MRN branded restaurants. Doc #: 85-1 at 14. Corner Alley Uptown is one such MRN branded restaurant. Doc #: 85-1 at 9, 13, 165-67. Seeholzer initially had security guards at Corner Alley Uptown one or two days per week to deter underage patrons from using fake identification cards. Doc #: 85-1 at 18. But after an incident where a fight occurred at Corner Alley Uptown, Seeholzer decided to have security guards present more often. Doc #: 85-1 at 18. To increase the hours security guards were present, Seeholzer had to get approval from Jori Maron. Doc #: 85-1 at 6, 18.
The record does not clearly show which of the Defendants employ Seeholzer and Maron. Seeholzer initially said he is employed by "MRN" and confirmed that he is the director of restaurant operations for MRN Ltd.1 Doc #: 85-1 at 6, 42. And Seeholzer has a "MRNltd.com" email address. Doc #: 85-1 at 7. But Seeholzer also said that MRN Ltd. is not his employer, that he believes his paychecks are from 629 Euclid Ltd. Doc #: 85-1 at 9. Seeholzer further explained that he does not know what 629 Euclid Ltd. is. Doc #: 85-1 at 9. Nor can an employment contract resolve this ambiguity because Seeholzer believes no contract exists. Doc #: 85-1 at 10.
As for Jori Maron, Seeholzer views him as a supervisor. Doc #: 85-1 at 6. Seeholzer's deposition also makes clear that the Maron family has ownership interest over Euclid 629 Ltd. and/or MRN Limited Partnership. Doc #: 85-1 at 10. Plaintiffs cite to CrainsCelveland.com to show that Maron is an MRN Ltd. partner. Doc #: 85 at 41 citing https://www.crainscleveland.com/article/20170526/who1002017/305269988/57-jori-maron.
To obtain security guards, Seeholzer would contact Cleveland Police Department Lieutenant Gerald Zarlenga. Doc #: 85-1 at 22. Seeholzer told Zarlenga that the security guards were to "assist the management when need be, just keeping an eye on possible situations prior to anything happening." Doc #: 85-1 at 25. Zarlenga would schedule off-duty officers, including Graziolli, to work as security guards at Corner Alley Uptown. Doc #: 85-3 at 35-36. The Cleveland Police Department referred to these off-duty opportunities as "secondary employment." Doc #: 85-3 at 11. Before taking secondary employment, officers were required to obtain approval from the Cleveland Police Department. Doc #: 85-3 at 11. The approval process consisted of filling out a form and submitting a worker's compensation coverage letter. Doc #: 85-3 at 11. Because of this requirement, Seeholzer provided a worker's compensation certificate and understood that it would cover Zarlenga and the officers Zarlenga scheduled to work at Corner Alley Uptown. Doc #: 85-1 at 23.
Seeholzer would give Zarlenga cash for the hours the off-duty officers worked. Doc #: 85-1 at 27. Seeholzer obtained the cash from an accountant but does not know where the accountant got the cash. Doc #: 85-1 at 27-28. No invoices reflecting these payments were made. Doc #: 85-1 at 27. Seeholzer is not aware that 1099s were ever delivered to Zarlenga or the officers working at Corner Alley Uptown. Doc #: 85-1 at 28. Zarlenga would use the cash to pay the officers. Doc #: 85-3 at 36. The record is silent on what, if anything, Zarlenga was paid.
Graziolli, before starting secondary employment at Corner Alley Uptown, was trained on the rules and regulations he was required to comply with while working secondary employment. Doc #: 85-3 at 13. He was authorized to wear his police uniform and understood that he was required to carry his city-issued firearm,2 a taser, pepper spray, an ASP baton, and handcuffs. Doc #: 85-3 at 13. Graziolli also understood that he was required to address criminal activity he observed while working secondary employment. Doc #: 85-3 at 13.
On January 13, 2018, Graziolli arrived at the Corner Alley Uptown at around 9:20 PM. Doc #: 85-3 at 43. He wore his Cleveland Police uniform, on which was affixed his metal police sergeant badge and police shoulder patch. Doc #: 85-3 at 12, 14. He carried his city-issued pistol, but not a taser, pepper spray, ASP Baton, or handcuffs. Doc #: 85-3 at 12. He declined to carry these items because he had not previously encountered any problems while working at Corner Alley Uptown. Doc #: 85-3 at 12.
On this night Graziolli encountered three problems – all involving Yatsko.
Graziolli first encountered Yatsko when he was summoned by a Corner Alley Uptown Employee. Doc #: 85-3 at 44. Graziolli was informed that two men were fighting inside Corner Alley Uptown. Doc #: 85-3 at 44. By the time Graziolli reached the area, Yatsko and his friend Delon McDuffie were finished fighting. Doc #: 85-3 at 44. Graziolli then escorted Yatsko to get his coat, walked Yatsko out the door, and told Yatsko, "you cannot come back inside." Doc #: 85-3 at 44-47.
Graziolli's second encounter with Yatsko occurred shortly thereafter. Doc #: 85-3 at 47. Graziolli was informed that Yatsko and McDuffie were fighting in the street. Doc #: 85-3 at 47. When Graziolli went into the street, he saw Yatsko punching and kicking McDuffie, who was on the ground. Doc #: 85-3 at 47.3 McDuffie recalls that Graziolli broke up the fight, was rude to him, and threatened to arrest him. Doc #: 85-18 at 24. McDuffie further recalls that Yatsko did not make any gestures to Graziolli. Doc #: 85-18 at 19. Graziolli recalls the events differently. Graziolli says that after he broke up the fight, Yatsko turned to him with closed fists and was getting ready to punch him. Doc #: 85-3 at 48. Graziolli says that he then identified himself as a police officer by saying "look at who you're going to punch." Doc #: 85-3 at 48.
Graziolli's third encounter with Yatsko occurred as he was walking back to the Corner Alley Uptown after breaking up the street fight. He encountered Yatsko in front of the Corner Alley Uptown's patio. What happened next is disputed. Relevant here are the video evidence and the recollections of Graziolli and Breanne Steele.
Corner Alley Uptown's surveillance camera shows Yatsko around Corner Alley Uptown's patio for two minutes before Graziolli appears. Doc #: 85-21 at 22:41:30-22:43:30. During those two minutes, Yatsko appears to be peacefully interacting with Steele. Doc #: 85-21 at 22:41:30-22:43:30. As Graziolli approached, Yatsko stepped back. Doc #: 85-21 at 22:44:16-22:44:30. Graziolli responded by advancing towards Yatsko. Doc #: 85-21 at 22:44:16-22:44:50. After both men shuffled around, Graziolli began to retreat backwards into the patio. Doc #: 85-21 at 22:45:39. The video does not show who threw the first punch, how many punches were thrown, or when Graziolli unholstered his pistol. But the video does show that Yatsko lunged at Graziolli while Graziolli was pointing his pistol at Yatsko. Doc #: 85-21 at 22:45:58-22:46:00. Yatsko then immediately...
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...an inadequate training/supervision program when the most recent evidence is from two years earlier. See, e.g., Yatsko v. Graziolli , 458 F. Supp. 3d 702, 717 (S.D. Ohio 2020) (finding incidents several years prior to the relevant time period insufficient to establish a Monell claim); Dean ,......