BRINER v. CITY OF ONTARIO

te law claims for reasons other than on the merits, and, following remand, these claims were reinstated, the Court will address Officer Hill's arguments relating to the merits of these claims. With respect to the state law claim of malicious prosecution, Officer Hill argues that the "evidence establishes that there was a reasonable ground of suspicion supported by facts and circumstances reasonably known at the time, that Melanie Briner was guilty of the offenses charged." (Mot. at 15.) He also argues that he is entitled to rely on the advice of the prosecutor that probable cause existed to support the charges.

"The elements of the tort of malicious criminal prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused." Trussel v. Gen. Motors Corp., 53 Ohio St. 3d 142, 146 (1990), overruled, in part, on other grounds, Robb v. Chagrin Lagoons Yacht Club, 75 Ohio St. 3d 264, 269 (1996)). As discussed above, there remains a question of fact as to whether there was probable cause to support the filing of misdemeanor charges. Moreover, as also previously noted, the manner in which Officer Hill conducted the investigation creates a genuine issue of material fact as to whether the charges were pursued by Officer Hill with malice. See, e.g., Burr v. Burns, 439 F. Supp. 2d 779, 793 (S.D. Ohio 2006) (Questions of fact as to whether arresting officer acted in a malicious manner precluded summary judgment.) As such, summary judgment in favor of Hill on this claim would be inappropriate.

An action for invasion of privacy is (1) the unwarranted appropriation or exploitation of one's personality, (2) the publicizing of one's private affairs with which the public has no legitimate concern, or (3) the wrongful intrusion into one's private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Housh v. Peth, 165 Ohio St. 35, syllabus at ¶ 2. (1956). Officer Hill argues that he "did not exploit Plaintiffs' personality, did not publicize Plaintiffs' private affairs, and did not intrude into Plaintiffs' private activities." (Mot. at 17.)

During the first summary judgment stage, Plaintiffs explained that their invasion of privacy claim was a "false light" claim, insisting that Defendants had "held them up to the public with false representations." Specifically, Plaintiffs highlighted the fact that Chief McClaran had appeared on a radio station in November 2005 and accused Plaintiffs of pursuing the police review board because of the charges filed against Melanie Briner. (Briner I, Doc. No. 109 at 1-2, Ex. 1, Affidavit of Melanie Briner at ¶ 1.) At that time, and during this most recent round of dispositive motions, Plaintiffs failed to point to any part of the record that would support a finding that Officer Hill held Plaintiffs in a "false light." Officer Hill is, therefore, entitled to summary judgment on this claim.

To establish a claim for tortuous interference with contract under Ohio law, a plaintiff must prove: (1) the existence of a contract, (2) the wrongdoer's knowledge of the contract, (3) the wrongdoer's intentional procurement of the contract's breach, (4) lack of justification, and (5) resulting damages. Fred Siegel Co., L.P.A. v. Arter Hadden, 85 Ohio St. 3d 171, 176 (1999). Similarly, an action for intentional interference with business relationships "occurs `when a person, without a privilege to do so, induces or otherwise purposely causes a third party not to enter into or continue a business relationship with another, or perform a contract with another.'" Chuparkoff v. Farmers Ins. of Columbus, Inc., 2006 Ohio App. LEXIS 3198, at ¶ 36 (Ohio Ct. App. 9th Dist. June 28, 2006) (quoting A B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. Constr. Trades Council, 73 Ohio St. 3d 1, 14 (1995)). Officer Hill argues that Plaintiffs have failed to present competent evidence that he intentionally procured the breach of any contract involving Plaintiffs, or caused a third party not to enter into or continue a business relationship with Plaintiffs. (Mot. at 17.)

Again, in the first round of briefing, Plaintiffs pointed only to Chief McClaran's role in removing F W Towing from the City's tow list, and McClaran's alleged efforts to have F W Towing removed from other governmental towing lists. (Briner I, Doc. No. 109 at 2-3.) Missing from their analysis is any evidence that would support a finding that Officer Hill was, in any way, involved with these activities. In the absence of any evidence that Officer Hill interfered with a contract to which the Briners were parties, or with a business relationship involving the Briners, summary dismissal of these claims as against Officer Hill is appropriate.

5. Statutory Immunity for Hill under Ohio Rev. Code § 2744

Officer Hill also argues that he is immune from Plaintiffs' state law tort claims. He appears to seek both statutory and common law immunity. However, "[t]he effect of R.C. 2744.03, with the exception of the common-law immunity preserved by R.C. 2744.03(A)(7), is to abrogate all other immunity provided under common law." Singer v. Fairborn, 73 Ohio App. 3d 809, 822 (Ohio Ct. App. 2nd Dist. 1991). The Court, therefore, turns to Ohio statutory law.

Ohio Rev. Code § 2744.03 provides immunity from tort actions for employees of political subdivisions acting in a governmental or propriety function, and lays out specific exceptions. Chester v. Neyer, 477 F.3d 784, 796 (6th Cir. 2007). Specifically, immunity is not available to an employee who has acted "outside the scope of the employee's employment," acted "with malicious purpose, in bad faith, or in a wonton or reckless manner," or unless "liability is expressly imposed upon the employee by a section of the Revised Code." Ohio Rev. Code § 2744.03(A)(6)(a)-(c). All of the acts that form the basis for Plaintiffs' state law actions against Officer Hill were performed in connection with a "governmental function."

Under Ohio Rev. Code § 2744.01(C), "government functions" include the operation of law enforcement personnel. § 2744.01(C)(2)(a).

Ohio courts have previously construed the terms found in § 2744.03(a)(6) as follows:

`Malice' is the willful and intentional design to do injury or the intention or desire to harm another, usually seriously, through conduct which is unlawful or unjustified. [. . .] `Bad faith' involves a dishonest purpose, conscious wrongdoing, the breach of a known duty through some ulterior motive or ill will, as in the nature of fraud, or an actual intent to mislead or deceive another. [. . .] `Wanton misconduct' is the failure to exercise any care whatsoever. [. . . M]ere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor. Such perversity must be under such conditions that the actor must be conscious that his conduct will, in all likelihood, result in an injury.

Thorton v. Summit Cty. Children Servs. Bd., 2007 Ohio App. LEXIS 4190, at ¶ 11 (Ohio Ct. App. 9th Dist. Sept. 12, 2007) (internal citations omitted). The Ohio Supreme Court has indicated that "showing recklessness is subject to a high standard" where a plaintiff is attempting to abolish employee immunity under Ohio Rev. Code § 2744.03(A)(6). Rankin v. Cuyahoga Cty. Dept. of Children and Family Servs., 118 Ohio St. 3d 392, 398 (2008).

As discussed in detail above, there remain questions of fact as to whether a reasonable officer would have believed that the filing of charges against Melanie Briner violated clearly established law, and whether Officer Hill presented the prosecutor with a full and fair account of the relevant evidence. See Barrett v. Wallace, 107 F. Supp. 2d 949, 956 (S.D. Ohio 2000) (citing Ohio Rev. Code § 2744.03(A)(6)(a)(c)) ("Ohio law provides a law enforcement official with immunity from any liability when there is no valid claim under § 1983. [. . .] However, [. . .] qualified immunity does not shield a police officer from liability if a reasonable and competent law enforcement officer would have known that his actions violated clearly established law.")) In addition, previously identified questions of fact surrounding the manner in which Officer Hill conducted the investigation raise the specter of bad faith or recklessness. All of these disputed facts raise genuine issues that must be resolved at trial. 6. Applicability of the Intracorporate Conspiracy Doctrine

Officer Hill also insists that he is entitled to absolute immunity under state law for his presentation of materials to the prosecutor for review. Ohio Rev. Code § 2744.03(A)(7) "preserves common law immunity for a `political subdivision, and an employee who is a county prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a political subdivision, an assistant to such person, or a judgment of a court of th[e] state is entitled to any defense or immunity available at common law or established by the Revised Code.'" Friga v. City of East Cleveland, 2007 Ohio App. LEXIS 1564, at ¶ 11 (Ohio Ct. App. 8th Dist. Apr. 12, 2007) (quoting Ohio Rev. Code § 2744.03(A)(7)). At common law, prosecuting attorneys and law directors enjoyed absolute immunity when initiating a prosecution and presenting the state's case. See Willitzer v. McCloud, 6 Ohio St. 3d 447, 449 (1983). Such complete immunity was not traditionally available for a police officer for his involvement in the charge initiation process. See Malley v. Briggs, 475 U.S. 335, 342 (1986) (police officer not entitled to absolute immunity for conduct involved in applying for warrant); Caudill v. Owen, 2005 U.S. Dist. LEXIS 44401, at *23 (S.D. Ohio Oct. 17, 2005) (police officers' acts as complaining witness only received qualified immunity); see also Burns v. Reed, 500 U.S. 478, 486-87 (1991) ("The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.") Police officers, therefore, only enjoy qualified immunity for their actions as employees of a political subdivision. See Ohio Rev. Code § 2744(A)(6). Compare Alioto v. Shively, 835 F.2d 1173, 1174 (6th Cir. 1987) (law enforcement officials were entitled to absolute immunity for testimony given in judicial proceedings). The authority cited by Plaintiffs, none of which involved police officers, does not compel a contrary conclusion.

In the Sixth Circuit's March 26, 2010 decision, the court granted Defendants leave on remand to address the question of whether the intracorporate conspiracy doctrine applied to Plaintiffs' conspiracy claims. Briner, supra, at 41. Now, Defendant Hill argues that Plaintiffs' federal and state conspiracy claims must fail because any alleged conspiracy was pursued by members of the same governmental entity. Federal Conspiracy Claim Under § 1983

It is well settled that you must have two or more persons or entitles to have a conspiracy. Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir. 1991). For this reason, the Sixth Circuit "has adopted the general rule in civil conspiracy actions [brought under 42 U.S.C. § 1985] that a corporation cannot conspire with its own agents or employees." Id.

Ohio district courts are split as to whether the intracorporate conspiracy doctrine applies to cases where, like here, conspiracy is raised under 42 U.S.C. § 1983. Compare Hopkins v. Canton City Bd. of Educ., 2010 U.S. Dist. LEXIS 63183, at n. 8 (N.D. Ohio June 23, 2010) (intracorporate conspiracy did not apply to conspiracy claims brought under § 1983); Kinkus v. Village of Yorkville, 476 F. Supp. 2d 829, 838-41 (S.D. Ohio 2007), rev'd on other grounds, 289 Fed. App'x 86, 89 n. 4 (6th Cir. 2008) (same); with Adcock v. City of Memphis, 2007 U.S. Dist. LEXIS 22156, at *4-*5 (W.D. Tenn. Mar. 13, 2007) (intracorporate conspiracy doctrine barred § 1983 conspiracy claim); Audio Visual Equip. Supplies, Inc. v. County of Wayne, 2007 U.S. Dist. LEXIS 86941, at *15 (E.D. Mich. Nov. 27, 2007) (same); Turner v. Viviano, 2005 U.S. Dist. LEXIS 35119, at *13 (E.D. Mich. July 15, 2005) (same).

Courts that have rejected the application of the intracorporate conspiracy doctrine for § 1983 conspiracy claims have noted that while § 1985 is in essence a conspiracy statute, § 1983 is not. See Kinkus, 476 F. Supp. 2d at 840. Observing that "the heart of the intracorporate conspiracy doctrine is that a corporation cannot conspire with its own agents or employees," these same courts have been reluctant to apply the doctrine to claims that are not also brought against the corporate entity. Id. at 841 ("[T]he fact that Plaintiff does not claim that Officer Popp or Chief Anderson conspired with Yorkville to injure him bars the application of the doctrine.")

Here, Plaintiffs have brought their federal conspiracy claim against the City, as well as the individual defendants. This would seem to remove some of the obstacles to applying the doctrine. Nonetheless, the Sixth Circuit has recognized a limited exception to the intracorporate conspiracy doctrine for actions taken outside the scope of employment. This exception "draws `a distinction between collaborative acts done in pursuit of an employer's business and private acts done by persons who happen to work at the same place.'" Adcock, 2007 U.S. Dist. LEXIS 22156, at *12 (quoting Johnson v. Hills Dales General Hosp., 40 F.3d 837, 839 (6th Cir. 1994) (conspiracy claim under § 1985(3)). Under this exception, an "intracorporate conspiracy may be established where individual defendants are also named and those defendants act outside the scope of their employment for personal reasons." Johnson, 40 F.3d at 840. The plaintiff bears the burden of establishing that the defendants' conduct fell outside the scope of employment. Id. at 841.

Defendants act "outside the scope of their employment" when they "pursue personal interests wholly separate and apart from the entity." Orafan v. Goord, 411 F. Supp. 2d 153, 165 (N.D.N.Y.), vacated and remanded on other grounds, 249 Fed. App'x 217 (2nd Cir. 2007) (internal citation omitted). See Johnson, 40 F.3d at 840 (exception applies where defendants act "for personal reasons"). It could certainly be argued that Defendants Hill and McClaran were merely executing their duties on behalf of the City when they pursued a course of action against Plaintiffs. See, e.g., Johnson, 40 F.3d at 841. Record evidence could also support a finding, however, that McClaran took action against the Briners for personal reasons, instead of to merely advance the legitimate business of the City. Moreover, there is evidence that Hill was complicit in McClaran's alleged vendetta. Briner, supra, at *41. Because there are questions of fact as to whether the acts were performed within the scope of employment, summary judgment for these individual defendants on the issue of the intracorporate conspiracy doctrine would be inappropriate. See, e.g., Jones v. City of Youngstown, 980 F. Supp. 908 (N.D. Ohio 1997) (question of fact as to whether defendant officials improperly used guise of zoning enforcement as cover for illegal drug search precluded finding that officials were acting within the scope of their employment).

For example, McClaran's comments of a local radio show, (Briner I, Doc. No. 109 at 1-2, Exh. 1, M. Briner Aff. at 1), and McClaran's comment to Assistant Prosecuting Attorney Robinson that he wished that he had filed felony charges against Melanie Briner, (Robinson Dep. at 8), suggest that McClaran might have been motivated by personal considerations.

State Conspiracy Claim

While the Ohio Supreme Court has yet to address the question of whether the intracorporate conspiracy doctrine applies to state conspiracy claims, the Sixth Circuit has recently applied this doctrine to a state conspiracy claim, noting that it was likely that Ohio's high court would embrace the doctrine. Bays v. Canty, 330 Fed. App'x 594 (6th Cir. 2009). Nonetheless, as was the case with the federal claim, questions of fact as to the applicability of the "scope of employment" exception to the doctrine precludes summary judgment in favor of Hill.

B. Defendant McClaran's Summary Judgment Motion

Defendant McClaran also requests summary judgment on the ground of qualified immunity. Specifically, he seeks qualified immunity for his alleged retaliatory actions relating to the failure to investigate the Briners' truck theft and the filing of criminal charges against Melanie Briner. He also asserts immunity for Plaintiffs' federal and state malicious prosecution and civil conspiracy actions. 1. Plaintiffs' Motion to Strike

As discussed above, questions of fact prevent the Court from summarily dismissing the conspiracy claims on the basis of the intracorporate conspiracy doctrine. As such, McClaran's request for summary judgment on these claims is also denied.

Once again, before the Court can reach the merits of the summary judgment motion, it must address a motion by Plaintiffs to strike. In their motion, Plaintiffs raise three distinct arguments: first, they argue that McClaran has waived the defense of qualified immunity; second, they note that the Sixth Circuit only afforded Defendants Hill and Strickler leave to raise qualified immunity; and third, they insist that McClaran's motion is not based upon qualified immunity, at all, but is a reiteration of arguments and issues previously resolved by the Sixth Circuit. The Court will address each argument in turn.

According to Plaintiffs, McClaran waived the defense of qualified immunity "long ago." (Briner I, Doc. No. 152, Mot. at 1.) They claim that "[t]his is the very first time in the nearly 3 1/2 years since he filed his answer in this case [. . .]." (Id.) This is not true. In his initial summary judgment motion, McClaran raised qualified immunity as an alternative to his arguments that the claims against him should be dismissed on the merits. (Briner I, Doc. No. 55, Mot. at 12-13.) In doing so, he set forth the law applicable to the qualified immunity analysis and then offered argument, applying the facts of the case to support his request. While it was clearly offered as an alternative theory for dismissal, it was presented. The Court simply did not reach the argument because it dismissed the claims on other grounds.

Thus, McClaran is not "in exactly the same posture," as the defendants in the cases relied upon by Plaintiffs. (See Mot. at 9.) Defendant McClaran timely raised the defense before the deadline for filing summary judgment, and set it out with sufficient particularity such that it was preserved for further review. Contrast Sales v. Grant, 224 F.3d 293, 296 (4th Cir. 2000) (defendant "only cursorily references qualified immunity in his answer to a § 1983 complaint, and thereafter fails to mention, let alone seriously press, his assertion of that affirmative defense [. . .]."); Yates v. City of Cleveland, 941 F.2d 444 (6th Cir. 1991) (defendants waited five years to raise qualified immunity, but were still allowed to raise it); Kennedy v. City of Cleveland, 797 F.2d 297, 303-04 (6th Cir. 1986) (qualified immunity raised after the deadline for filing dispositive motions was waived).

Moreover, the reasons offered in the case law relied upon by Plaintiffs to support a finding of waiver do not apply. In Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664, 667 (1st Cir. 1996), the First Circuit, noted that "[d]elay generated by claims of qualified immunity may work to the disadvantage of the plaintiff. Witnesses may become unavailable, memories may fade, attorneys fees accumulate, and deserving plaintiffs' recovery is delayed." It was these considerations that caused the court to uphold the district court's finding that defendants had waived the qualified immunity defense. Id. at 668. Here, however, the Sixth Circuit has specifically extended other defendants leave to raise qualified immunity. The potential for delay, and the possibility of another interlocutory appeal, already exists. Indeed, it was for this reason that this Court established in its minutes a briefing schedule for any dispositive motion on the issue of qualified immunity. (See Briner I, April 30, 2010 Minutes (emphasis added)). Thus, Plaintiffs' waiver argument is not well taken. For these same reasons, the Court similarly rejects Plaintiffs' argument that only Hill and Strickler have leave to file. While the Sixth Circuit specifically extended leave to Hill and Strickler, this Court exercises its own discretion to permit McClaran to seek immunity, as well.

As they did with respect to the dispositive motion filed by Hill and Strickler, Plaintiffs also argue that the present dispositive motion is not really a qualified immunity motion, at all, inasmuch as it also raises the intracorporate conspiracy doctrine, advice of counsel, and immunity from the state claims. The Court previously rejected each of these arguments as to the summary judgment motion of Hill and Strickler, and its reasoning is equally applicable to McClaran's motion. As was the case with Defendants Hill and Stricker, however, the Court will not permit McClaran to raise issues that have been resolved by the Sixth Circuit and this Court. Therefore, Plaintiffs' motion to strike is GRANTED in part and DENIED in part. 2. Qualified Immunity for McClaran

Going straight to the inquiry of what a reasonable officer would have believed, McClaran argues that the reasonable officer would have believed that neither suspending the investigation into the alleged theft at F W Towing, nor filing criminal misdemeanor charges against Melane Briner, would violate any clearly established constitutional rights. In both instances, McClaran relies on the intervening opinion of a prosecutor. With respect to the theft investigation, McClaran relies on the fact that Assistant County Prosecutor Robinson "twice determined that the dispute between Briner and Paone was a civil matter, not a criminal matter, involving the ownership of the truck." (Mot. at 8, citing Robinson Dep. at 10-11.) As for the criminal charges, McClaran relies on the fact that Defendant Thomas, the City's Law Director, made the decision that probable cause existed to prosecute Melanie Briner.

As discussed above, the independent judgment of an intervening prosecutor is called into question when the police officer has provided false or misleading information. See Peterson, 164 F. Supp. 2d at 1223; Brothers, 2007 U.S. Dist. LEXIS 38468, at *43-*44) (citing Jones, 856 F.2d at 993-94); Strutz, 308 F. Supp. 2d at 787. There remain genuine issues of material fact as to whether McClaran made a full and fair disclosure to Thomas, such that the Court cannot decide on summary judgment whether a reasonable officer would have relied on the ultimate decision of either prosecutor.

While Hill conducted most of the investigation into possible criminal charges against Melanie Briner, collected the evidence, and ultimately prepared the criminal complaints, it was McClaran who spoke with the City's Law Director about the filing of charges. In her deposition, Thomas admitted that she did not remember whether McClaran shared with her certain key information from the investigation. For example, Thomas admitted that she did not remember being advised by McClaran that Hissong had been threatened with criminal prosecution before she recanted her story. (Thomas Dep. at 77-79.) In light of the fact that Thomas made her determination as to probable cause by reviewing the materials submitted by the OPD (Thomas Aff. at ¶ 6), and there are questions of fact as to whether McClaran (like Hill) made a full and fair disclosure to Thomas, the Court cannot determine on summary judgment that the intervention of the prosecutor absolves McClaran of liability.

McClaran also relies upon the intervening opinion of Chief Criminal Attorney Brent Robinson to justify the failure of the OPD to continue the investigation into the theft of the GMC truck, specifically pointing to a May 13, 2005 letter from Robinson. His reliance on this letter is misplaced for several reasons. First, Robinson did not, in his letter, state that he believed that the theft of the truck was a civil matter, as McClaran suggests. Instead, he stated that he believed that because Melanie Briner's "action of changing the date on the title could reasonably be argues [sic] to be an attempt to enforce the oral contract between the parties [. . .] the issue regarding the changed date on the title is a civil matter between the victim and defendant." (Doc. No. 147-6, May 13, 2005 Robinson Letter.) It is clear from the letter that Robinson did not suggest that the Briner's allegations of theft were baseless or not criminal, only that it did not appear that Melanie Briner had broken the law when she altered the title. (Id.)

Second, there is evidence in the record to suggest that McClaran and the OPD abandoned their efforts to investigate the alleged theft of the truck long before Robinson first wrote to McClaran. Specifically, a jury could conclude that Detective Snavely, at the direction of McClaran, had already decided when he took over the investigation in January 2005 that he was not going to investigate the theft of the truck but would instead, focus exclusively on the alleged false statements. Briner, supra, at *9. There was also evidence that McClaran had abandoned the theft investigation before Debra Hissong was brought in for questioning on March 10, 2004. Id. at 10-11. With these factual disputes surrounding the impact of the Robinson letter, the Court cannot say as a matter of law that McClaran is entitled to qualified immunity on the retaliation claim relating to the theft investigation. 3. Statutory Immunity for McClaran under Ohio Rev. Code § 2744

At Melanie Briner's criminal trial, McClaran testified that he was convinced that Melanie Briner had not witnessed Larry Paone sign the title in front of her on December 30, 2004 before he invited Hisson back for questioning. (McClaran Trial Testimony at 201.)

There is also evidence in the record to support a finding that McClaran did not rely upon Robinson's opinion. After receiving the letter, he continued to pursue criminal charges against Melanie Briner for fraud. While he may very well have abandoned the investigation into the theft, he asked Robinson through Detective Snavely to "take another look" at bringing felony fraud charges against Melanie. (See August 18, 2005 Robinson letter.) Even after the second letter, Robinson testified that McClaran approached him and expressed the sentiment that "Boy, I really wished you would have charged that as a felony." (Robinson Dep. at 8.)

McClaran also seeks immunity for Plaintiff's state law malicious prosecution claim. As previously discussed, the right to such immunity is statutory in nature and flows from Ohio Rev. Code § 2744, which is available to employees who act within the scope of their employee and act without "malicious purpose, in bad faith, or in a wanton or reckless manner." Ohio Rev. Code § 2744.03(A)(6)(a)-(b). As was the case with Hill, there are questions of fact as to whether there existed probable cause, an essential element of malicious prosecution. Moreover, there are unresolved factual issues relating to whether a reasonable officer would have relied upon Thomas's assessment as to probable cause, given the fact that McClaran does not appear to have provided a complete and entirely truthful account of the evidence against Melanie Briner. For these reasons, the Court cannot decide at this stage whether a reasonable officer would have believed that the filing of charges against Melanie Briner did not violate clearly established law. See Barrett, 107 F. Supp. at 956. Consequently, and for all of these reasons, Defendant McClaran's summary judgment motion is DENIED.

C. Motion of Thomas and the City for Summary Judgment

In Briner II, Thomas and the City move for summary dismissal of the only three claims asserted in the Complaint: namely, malicious prosecution under § 1983, First Amended Retaliation, and loss of consortium. Both Defendants seek summary judgment on the merits of the claims. Thomas also requests absolute and qualified immunity for her actions associated with the bringing of criminal charges against Melanie Briner.

At the outset, it is worth noting that Plaintiffs oppose this final dispositive motion, in part, on the ground that the Sixth Circuit's decision is the law of the case and that its determination that there are questions of fact relating to the existence of probable cause precludes this Court from finding that Thomas had probable cause to order the filing of misdemeanor charges against Melanie Briner. Defendants Thomas and the City insist that the law-of-the-case doctrine only applies to govern the same issues in subsequent stages in the same case. Neither position is entirely accurate.

It is true that "under the law-of-the-case doctrine, findings made at one point in the litigation should continue to govern in subsequent stages of that same litigation." Rouse v. DaimlerChrysler Corp. UAW, 300 F.3d 711, 715 (6th Cir. 2002) (emphasis added). See United States v. Mendez, 498 F.3d 423, 426 (6th Cir. 2007). Nonetheless, the doctrine has been applied to subsequent issues raised in closely related cases. See, e.g., Ovida v. Top Ten Jewelery Corp., 2005 U.S. Dist. LEXIS 16784 (S.D.N.Y. Aug. 12, 2005) (internal citation omitted) ("[T]he Court will adopt the summary judgment ruling in the [prior] action, which is premised `on identical allegations to those at issue' in the [present] Action.'") (internal citation omitted); Moss v. Crawford Co., 201 F.R.D. 398, 401 n. 1 (W.D. Pa. 2000) (law-of-the-case doctrine applies to issues previously determined in closely related cases).

There is no doubt that Briner II is "closely related" to Briner I, with many shared facts and legal issues. Still, the Sixth Circuit's ruling in Briner I as to probable cause does not necessarily foreclose consideration of the issue anew in Briner II. "Probable cause is defined by asking `whether at that moment the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'" Radvansky, 496 F.3d at 614. See Beck v. Ohio, 379 U.S. 89, 91 (1964) (probable cause turns on "whether, at that moment, the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to permit a prudent man in believing that the petitioner had committed or was committing an offense.") A finding that a reasonable officer in the position of Hill or McClaran would have believed that probable cause existed, therefore, does not answer the question as to whether that same reasonable official in Thomas's position, with only the facts known to her at the time, would have found probable cause.

Nonetheless, the Court need not answer the question of whether, from Thomas's perspective, there was probable cause to support the filing of charges against Melanie Briner because Thomas's actions, even if done without probable cause, are protected by absolute immunity.

1. Absolute Immunity for Thomas for Federal Claims

In Imbler v. Patchman, 424 U.S. 409, 424-427 (1976), the Supreme Court observed that prosecutors were traditionally immune from suits at common law, and that this common law immunity extends to actions brought under 42 U.S.C. § 1983. This immunity stems from the consideration that if the prosecutor were not immune from suit, "harassment by unfounded litigation would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising his independence of judgment required by his public trust." Id. at 422-23.

This immunity, though absolute, is not without its limitations. Absolute prosecutorial immunity is available only for those activities "intimately associated with the judicial phase of the criminal process." Id. at 430. Thus, prosecutors are absolutely immune in § 1983 actions only in "initiating a prosecution and in presenting the State's case." Id. at 430. Generally, when they function as an administrator or an investigator, however, absolute immunity does not apply and they are only entitled to qualified immunity. Buckley v. Fitzimmons, 509 U.S. 259, 273-74 (1993). The Sixth Circuit has observed, however, that absolute immunity encompasses those "administrative or investigative acts necessary for a prosecutor to initiate or maintain the criminal prosecution." Ireland v. Tunis, 113 F.3d 1435 (6th Cir. 1997). At all times, "the official seeking absolute [prosecutorial] immunity bears the burden of showing that such immunity is justified for the function in question." Burns v. Reed, 500 U.S. 478, 486 (1991).

Plaintiffs challenge Thomas's request for absolute immunity on the ground that her involvement in the filing of criminal charges against Melanie Briner was purely administrative. Plaintiffs rely, in part, on Thomas's deposition testimony wherein she responded in the affirmative to the question "And I presume you did that (`direct the Ontario Police to charge Ms. Briner with the criminal offenses that were filed') within your administrative capacity as the Ontario Law Director, correct?" (Thomas Dep. at 34-35.)

The Court does not, however, rely on labels suggested by opposing counsel to determine the nature of a prosecutor's actions. Instead, courts employ a "functional approach." Buckley, 509 U.S. at 269. See generally, Michaels v. State of New Jersey, 50 F. Supp. 2d 353, 359 (D.N.J. 1999) ("Whether an actor enjoys absolute or qualified immunity is based on the function he or she performs, not the title he or she holds.") "The analytical key to prosecutorial immunity [. . .] is advocacy — whether the actions in question are those of an advocate." Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir. 2003). See Harris, 513 F.3d at 510. "If the challenged actions of the prosecutor were not performed in his role as advocate, if they do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings, then only qualified immunity applies." Skinner v. Gorovchin, 463 F.3d 518, 525 (6th Cir. 2006) (quoting Buckley, 509 U.S. at 273). See Joseph v. Patterson, 795 F.2d 549, 554 (6th Cir.) ("[T]he critical inquiry is how closely related is the prosecutor's challenged activity to his role as an advocate intimately associated with the judicial phase of the criminal process."), overruled on other grounds, Kalina v. Fletcher, 522 U.S. 118 (1997).

Applying the functional approach, there can be no doubt that Thomas's actions were performed in her role as advocate, and fall squarely within the range of protected acts contemplated by the Supreme Court in Imbler, supra. There is no dispute that, in her capacity as Ontario Prosecuting Attorney, she "reviewed the investigative materials prepared by the Ontario Police Department," and "determined that there was probable cause that Melanie Briner had engaged in conduct constituting tampering with records, falsification, and complicity to commit falsification." (Thomas Aff. at ¶ 6.) Also "[a]s Prosecuting Attorney, [she] directed the Ontario police to file against Melanie Briner misdemeanor charges [. . .]." (Id. at ¶ 7.) These actions were "intimately associated with the judicial phase of the criminal process," Imbler, supra, inasmuch as they were directly associated with the filing of criminal charges. See Boone v. Kentucky, 72 Fed. App'x 306, 307 (6th Cir. 2003) ("The decision on whether or not to prosecute is unquestionably advocacy and is at the heart of the Imbler holding."); Ireland, 113 F.3d at 1446 (quoting Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992)) ("The decision to initiate a prosecution is at the core of a prosecutor's judicial role.") See, e.g., Manetta v. Macomb County Enforcement Team, 141 F.3d 270, 274 (6th Cir. 1998) (quoting Ireland, 113 F.3d at 1446 (Absolute immunity "extends to `[a] prosecutor's decision to file a criminal complaint and seek an arrest warrant and the presentation of these materials to a judicial officer.")

Thomas did not, as Plaintiffs suggest, provide the OPD with legal advice. Nor did she participate in the investigative stage of the action against Melanie Briner, or direct the OPD to take any action in connection with their investigation. Contrast Prince v. Hicks, 198 F.3d 607, 613 (6th Cir. 1999) (No absolute immunity for prosecutor who allegedly "undertook to perform an investigation [. . .]."); Joseph, 795 F.2d at 555 (absolute immunity was not available for prosecutor who allegedly interrogated a witness while she was in police custody and coerced her into making false statements which supported a later criminal complaint against the plaintiffs of a civil rights action). After the OPD's investigation was complete, McClaran asked Thomas to make a decision as to misdemeanor charges. Thomas then evaluated the evidence presented to her by the OPD, made a determination as to probable cause, and instructed the OPD to file the charges. Such action is clearly contemplated within the term "advocacy." See Ireland, 113 F.3d at 1445 ("Investigative acts undertaken in direct preparation of judicial proceedings, including the professional evaluation of evidence, warrant absolute immunity [. . .].")

Try as they might, Plaintiffs cannot force Briner II into the mold of the Sixth Circuit's decision in Harris, which appears to be the impetis of the filing of Briner II. (See Briner II, Doc. No. 1, Compl. at ¶ 1.) There, the prosecutor, after discovering that a suspect had confessed to the murder, and after going to the police station to view the videotape of the interrogation, directed the police to arrest the suspect. Harris, 513 F.3d at 508. The court determined that absolute immunity was not available for the prosecutor, noting that she went "beyond merely advising the police; she instructed them to arrest Harris, without soliciting any officer's opinion." Id. at 510 (emphasis in original.)

In withholding absolute immunity, the court relied on the Supreme Court's decision in Burns, wherein the high court denied absolute immunity to a prosecutor who instructed police officers, during their investigation, to use hypnosis on a suspect. The court found that "advising the police in the investigative stage of a criminal case is [not] so `intimately associated with the judicial phase of the criminal process' that it qualifies for absolute immunity." Burns, 500 U.S. at 493 (quoting Imbler, 424 U.S. at 430).

In contrast to Harris, Thomas did not insert herself into the OPD's investigation, and, in contrast to Burns, she did not play a role in or provide advice to the police officers during the investigation. Instead, after the investigation was complete, she evaluated the evidence and initiated the criminal process by directing Hill to file criminal complaints against Melanie Briner.

Plaintiffs also maintain, without authority, that Thomas's actions were merely administrative because she ultimately delegated to a subordinate the duties of prosecuting the case. They also make much of the fact that it is possible for the police to bring misdemeanor charges without seeking the approval of the Law Director. (McClaran Dep. at 156-57; Thomas Dep. at 47-48.) Neither argument has merit.

The fact that Thomas delegated trial duties to an assistant does not diminish her prior actions of evaluating the evidence and approving the filing of charges. See Kulwicki, 969 F.2d at 1463 ("The decision to initiate a prosecution is at the core of a prosecutor's judicial role.") (emphasis added.) Moreover, while it may be possible for the police to file misdemeanor charges without attorney involvement, it is clear that, in this case, Thomas made the decision regarding probable cause, and that she directed the police to file the charges. Indeed, Plaintiffs allege that it was Thomas who instructed the police to file the charges. (Briner II, Compl. at ¶ 7, "These charges were filed pursuant to the explicit instructions of Defendant, Rebecca Thomas, in her capacity as Law Director and Prosecutor.") It rings hollow for Plaintiffs to argue now that Thomas did not make the decision to charge.

While Thomas testified that she is not usually called upon to make the decision as to filing charges, this was not the only time she was asked to do so. (Thomas Dep. at 47-48.)

Finally, Plaintiffs posit that Thomas is not entitled to summary judgment on the issue of absolute immunity because Defendants Thomas and McClaran "each tell widely different and inconsistent versions" as to how the decision to charge was made. (Briner II, Doc. No. 19 at 15 (emphasis added)). Neither Plaintiffs' characterization of the evidence, nor their conclusion as to the availability of summary judgment, is correct. Plaintiffs highlight the fact that McClaran testified that he spoke with Thomas once regarding the filing of charges against Melanie Brier (McClaran Dep. at 123), while Thomas recalled that they spoke on two occasions, once in April 2005 (Thomas Dep. at 13), and a second time in August 2005. (Id. at 16.) While a disputed fact exists, it is not material to the issue of absolute immunity. Whether there was one, or there were two, phone conversations is of no consequence, as there is no dispute as to the nature of Thomas's actions. Called upon by the OPD to do so, she evaluated the evidence, found the existence of probable cause, and instructed the OPD to file charges. These activities form the very core of a prosecutor's judicial role, and absolute immunity is available for such acts. See Ireland, 113 F.3d at 1446.

Thomas testified that the April 2005 phone call was "a general telephone call," while in the second call McClaran "was wanting [Thomas] to look at the case for charges [. . .]." (Thomas Dep. at 13, 16.)

Plaintiffs raise a potential bias or prejudice Thomas may have harbored in light of the fact that she once represented Larry Paone in a domestic relations matter. (Thomas Dep. at 73-74.) However, "a prosecutor's decision to file charges is protected by absolute immunity even if done vindictively, maliciously, or without adequate investigation." Rhodes v. Smithers, 939 F. Supp. 1256, 1268 (S.D.W.Va. 1995). See Grant v. Hollenbach, 870 F.2d 1135 (6th Cir. 1989) (recognizing that the advocatory decisions of prosecutors are protected by absolute immunity irrespective of bad faith or malice). See generally, Mireles v. Waco, 502 U.S. 9, 11 (1991) ("[J]udicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial."); Beckett v. Ford, 2010 U.S. App. LEXIS 12957, at *46 (6th Cir. June 24, 2010) (Even if the prosecutor "threatened, coerced, or enticed" a witness into providing false testimony, it was still protected by absolute immunity.)

2. Absolute Immunity for Thomas for State Claim

"Section 2744.03(A)(7) preserves the absolute immunity afforded prosecutors at common law." Ward v. Fink, 2006 U.S. Dist. LEXIS 15004, at *14 (N.D. Ohio Mar. 31, 2006) (citing Barstow v. Waller, 2004 Ohio App. LEXIS 5198, at 17 (Ohio Ct. App. 4th Dist. Oct. 26, 2004)). Like the federal courts, Ohio courts also employ a functional approach "in determining whether the prosecutor's acts are quasi-judicial as opposed to investigative or administrative [. . .]." Willitzer, 6 Ohio St. 3d at 449. Ultimately, the same consideration — whether a prosecutor's actions are "intimately associated with the judicial phase of the criminal process" — governs the absolute immunity analysis under Ohio statutory law. Id. (citing Imbler, 424 U.S. at 430-31). Thus, for the same reasons that support a finding of absolute immunity for the federal claims, Thomas is entitled to absolute immunity for the state claim of loss of consortium.

3. Municipal Liability for the City

Plaintiffs also seek to recover from the City for the claims raised in the Complaint, all of which are tied to Thomas's actions relating to the filing of charges against Melanie Briner. A governmental entity may not be held liable under 42 U.S.C. § 1983 for an employee's conduct on the basis of respondeat superior. Monell v. Dep't of Soc. Services, 436 U.S. 658, 690-91 (1978). Rather, a plaintiff must show that the government entity itself is the wrongdoer. Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992). In order to establish governmental liability, a plaintiff must demonstrate that an officially executed policy, or the tolerance of a custom, led to or caused the deprivation of a constitutionally protected right. Collins, 503 U.S. at 122. As such, Plaintiffs must demonstrate that: (1) a constitutional violation occurred, and (2) the City is responsible for that violation. Graham v. County of Wastenaw, 358 F.3d 377, 382 (6th Cir. 2004). The City shall only be responsible if the policy in question was the "moving force" behind the alleged underlying constitutional violation. Monell, at 694; Doe v. Claiborne County, 103 F.3d 495, 507-08 (6th Cir. 1996).

The term "policy" generally "implies a course of action consciously chosen from among various alternatives [. . .]." Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985). A policy reflects "a deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). A "custom" for purposes of Monell liability must be "so permanent and well settled as to constitute a `custom or usage' with the force of law." Monell, 436 U.S. at 691. In turn, the concept of "law" includes "deeply embedded traditional ways of carrying out state policy [. . .]." Nashville, C. S. L. Railway v. Browning, 310 U.S. 362, 369 (1940). In short, a "custom" is a "legal institution that is permanent and established" but not memorialized by written law. Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993).

Thomas represents that, at all times relevant to Briner II, "the City of Ontario did not have a policy, practice or custom of filing false criminal charges." (Thomas Aff. at ¶ 10.) Nor have Plaintiffs pointed to a written policy to that effect. In the absence of a written policy, Plaintiffs must produce evidence of a "clear and persistent pattern" of illegal activity that would rise to the level of a policy or custom. See Doe, 103 F.3d at 508.

The circumstances surrounding the alleged baseless charging of Melanie Briner, alone, cannot establish an overarching policy condoning such behavior. As the Sixth Circuit observed in Thomas v. City of Chattanooga:

The question here is whether there was some sort of policy, custom, or practice in the Chattanooga Police Department of condoning excessive force, and under Doe, such a policy must be shown by a clear and persistent pattern. [internal citation omitted] The danger in appellants' argument is that they are attempting to infer a municipal-wide policy based solely on one instance of potential misconduct. This argument, taken to its logical end, would result in the collapsing of municipal liability standard into a simple respondeat superior standard. This path to municipal liability has been forbidden by the Supreme Court.

Thomas, 398 F.3d 426, 432-33 (6th Cir. 2005) (citations omitted). The court in Thomas concluded that "the plaintiff bears a heavy burden in proving municipal liability, and he cannot rely on a single instance to infer a policy of deliberate indifference." Id.

Plaintiffs offer no evidence as to the existence of a practice or custom of filing false charges, but, instead, attack Thomas's affidavit averring the absence of any policy to that effect on the ground, that because Thomas did not personally prosecute misdemeanor charges, she "would not be in a position to have first-hand knowledge of those matters." (Briner II, Doc. No. 19 at 18.) As discussed above, however, Thomas's role as Law Director cannot be relegated to that of administrative secretary merely because, after performing her duties as Law Director by finding probable cause and instructing the filing of charges, she assigned the trial work to another attorney.

Plaintiffs argue, however, that the other "fatal weakness" in the City's argument is that their primary theory of municipal liability, is that of the "actions of a policymaker" as set out in Pembaur. They insist that Thomas is the "highest ranking policymaking official in her department," and her actions bind the City. (Doc. No. 19 at 18.) However, even where the municipal liability is based upon the acts of a prosecutor, a plaintiff must still establish that the prosecutor's actions were pursuant to an unconstitutional policy or custom. See Collins v. Deegan, 49 Fed. App'x 571, 573 (6th Cir. 2002) (Without the allegation of an unconstitutional policy or custom, "any claims against St. Clair County based upon [the prosecutor's] actions were properly dismissed for failure to state a clam upon which relief may be granted."); Wallace v. County of Calhoun, 2010 U.S. Dist. LEXIS 36796 (W.D. Mich. Apr. 14, 2010) ("[A]llegations that there were negligent acts by the prosecutor as the policymaker for Calhoun County, without out showing that the acts were the result of a policy or custom, do not support liability under § 1983.") (citing Molton v. City of Cleveland, 839 F.2d 240, 246 (6th Cir. 1988)). Plaintiffs having failed to demonstrate a genuine issue of material fact as to municipal liability, the City is entitled to summary judgment.

Of course, allegations that Thomas's actions as the highest-ranking official bind the City contradict Plaintiffs' insistence that she would have no personal knowledge as to her employer's policy regarding the filing of criminal charges.

Conclusion

For all of the foregoing reasons, in Briner I, the summary judgment motion of Defendants Hill and Strickler is GRANTED in part and DENIED in part. The state claims of invasion of privacy, tortuous interference with contract, and interference with contract are dismissed as to Defendant Hill, only. Defendant Strickler is GRANTED qualified immunity for the Equal Protection claim and (to the extent he has not previously been dismissed from) the First Amendment retaliation claim. Defendant McClaran's summary judgment motion is DENIED in its entirety. Questions as to the availability of qualified immunity for Defendants Hill and McClaran must be resolved at trial. In Briner II, the summary judgment motion of Defendants Thomas and City is GRANTED. All claims in Briner II are dismissed against the City, and Defendant Thomas is afforded absolute immunity as to all claims.

IT IS SO ORDERED.

Dated: October 7, 2010