James G. Carr, United States District Judge.
This is a civil rights action brought pursuant to 42 U.S.C. § § 1985 and 1983 in which plaintiff alleges that defendants engaged in a conspiracy to deprive him of his right to equal protection under the law. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 and § 1343. Pending is defendants' motion for summary judgment. (Doc. 10). For the following reasons, defendants' motion for summary judgment shall be granted.
Background
On November 6, 1997, the plaintiff, Ronald Anderson, went to the Sandusky police station for the alleged purpose of filing charges of harassment against his former wife Nicho'l Anderson ("Nicho'l"). (Youskievicz Aff., at ¶ 6). Plaintiff was interviewed by defendant Kevin Youskievicz, a police officer employed by defendant City of Sandusky. (Id. at ¶ 2).
Plaintiff told Officer Youskievicz that he and his former wife had been divorced since October 22, 1997. (Id. at ¶ 4). Plaintiff alleged that he had become friends with one of his former wife's co-workers, and that the friendship had been initiated a few weeks prior to November 6, 1997. (Id. at ¶ 5). According to the defendants, plaintiff told the officer that his friendship with the co-worker had angered his former wife and that his former wife had been harassing him. Id. Plaintiff allegedly indicated to Officer Youskievicz that he wished to file charges of harassment against his former wife. (Id. at ¶ 6).
Plaintiff allegedly told Officer Youskievicz that on October 4, 1997, he had been arrested on stalking charges by defendants, the Perkins Township Police Department, taken to the Erie County Sheriffs Office, and released. (Id. at ¶ 7). Plaintiff told Officer Youskievicz that his former wife had been bragging to other co-workers that she had him arrested because of his friendship with one of her co-workers. (Id. at ¶ 10). Defendants allege that plaintiff gave the police officer the names of three of his wife's co-workers whom, he indicated, would corroborate his allegations. Id. Officer Youskievicz told the plaintiff that he would have to investigate further before filing charges. (Id. at ¶ 9).
Officer Youskievicz contacted City of Sandusky prosecutor, defendant Lynne Gast King, about the Andersons' case. (Id. at ¶ 11). The prosecutor told the police officer that Nicho'l had reported that plaintiff had come to her place of work and she feared that he would harm her if charges were filed against him. (Id.). The prosecutor authorized the Perkins Township Police Department to charge plaintiff with stalking. (Id. at ¶ 12).
Officer Youskievicz also interviewed the three co-workers whom plaintiff had named as persons who would corroborate his allegations that his former wife had him falsely arrested on stalking charges. (Id. at ¶ 13). According to defendants, one of the co-workers told the police officer that she barely knew Nicho'l and had never heard her say anything bad about anybody. (Id. at ¶ 14). The second co-worker allegedly told the police officer that she believed Nicho'l was afraid of her ex-husband, but Nicho'l had not said that she had him falsely arrested. (Id. at ¶ 15). The third co-worker allegedly indicated that she had never heard Nicho'l brag about having her ex-husband arrested. (Id. at ¶ 16). Defendants allege the third co-worker stated that she knew plaintiff had called Nicho'l at work on several occasions and he had been told not to call during operating hours. (Id.). The third co-worker allegedly told the police officer that Nicho'l was "terrorizing" the co-worker with whom her former husband was friendly. (Id.)
On November 6, 1997, Officer Youskievicz spoke with plaintiff. Officer Youskievicz told plaintiff that the three co-workers had not corroborated his allegations. (Id. at ¶ 18). According to defendants, plaintiff stated that he felt the co-workers were covering for his former wife. (Id.) Plaintiff allegedly stated that he would bring his roommate and the co-worker with him to the police station to corroborate his allegations. (Id.). Plaintiff never brought either the roommate or the co-worker to the police station to make statements. (Id. at ¶ 19).
Officer Youskievicz contacted prosecutor King and advised her that plaintiffs allegations were not substantiated by the co-workers and that plaintiff had failed to produce any other witnesses to corroborate his allegations. (Id. at ¶ 20). Prosecutor King indicated to Officer Youskievicz that it was her opinion that the actions of the plaintiff constituted the crime of falsification under Ohio law and that he should be charged with that crime. (King Aff., at ¶ 7). Because the plaintiff already had charges pending against him involving the same circumstances, however, Prosecutor King decided that he would not be charged at that time. (Id. at ¶ 8). The prosecutor indicated that it had been her experience that most misdemeanor charges in Sandusky Municipal Court were settled by plea arrangements. (Id.). The prosecutor believed that if a plea arrangement could be worked out, it would not be necessary to charge the plaintiff with the falsification charges. (Id.).
The trial for the stalking charges was continued several times. (Id. at ¶ 10). Prosecutor King was eventually informed by plaintiff's attorney that there would be no plea arrangement. (Id. at ¶ 11). Prosecutor King then decided to charge the plaintiff with falsification and several other crimes. Id. Prosecutor King believed that all charges must be brought in the original action, because plaintiff could not be charged with additional offenses concerning the same set of circumstances after his trial for the original action. Id.
Prosecutor King instructed Officer Youskiewicz to sign a complaint for falsification against the plaintiff alleging that plaintiff knowingly made false statements with the purpose of misleading a public official in performing the public official's official function, in violation of Ohio Rev. Code § 2921.13(A)(2)(3). (Id. at ¶ 12). The criminal charges were based on the fact that plaintiff had made false statements to Officer Youskiewicz regarding what several witnesses would say and failed to produce the witnesses. (Id. at ¶ 13). Officer Youskievicz signed a criminal complaint on January 15, 1999 at the direction of Prosecutor King. (Youskievicz Aff., at ¶ 23).
The plaintiff was subsequently tried and acquitted of the charges. (Compl. at ¶ 4). Plaintiff filed a claim alleging deprivation of his fourteenth amendment right to equal protection under the laws against Perkins township, the City of Sandusky, Officer Curtis, Officer Matthews, Officer Youskievicz, and Bennie Matthews of Perkins Township Hall. (Compl. at ¶ 12). Plaintiff's complaint also alleged state claims of malicious prosecution pursuant to Ohio Rev. Code § § 2921.03 and 2921.04.
Plaintiff's 42 U.S.C. § 1983 Claim for Vindictive Prosecution
Plaintiff alleges that he was initially charged with misdemeanor stalking. After plaintiff refused to plead guilty to the charge, plaintiff alleges he was vindictively prosecuted by the filing of domestic violence, aggravated menacing, and menacing by stalking charges against him. Plaintiff contends defendants brought the additional charges in order to force plaintiff to plead guilty to the original stalking charge.
Section § 1983 provides a cause of action for those individuals who have been deprived of any tights, privileges, or immunities under the Constitution. Vindictive prosecution denies an individual of due process protection under the Constitution. Bordenkircher v. Hayes, 434 U.S. 357 (1977).
The elements of vindictive prosecution are: 1) exercise of a protected right; 2) the prosecutor's "stake" in the exercise of the right; 3) unreasonableness conduct by the prosecutor; and 4) prosecution was initiated with the intent to punish the defendant for exercise of the protected right. United States v. Mathis, 173 F.3d 857, *2 (6th Cir. 1999). If the defendant creates a presumption of vindictiveness, the burden shifts to the government to show that legitimate reasons exist for the prosecution. Id. at * 5. In determining whether the government has rebutted the presumption, the test is whether there is a "realistic likelihood of vindictiveness" for the prosecutor's actions in the context of the entire proceeding. Id. The court reviews the prosecutor's actions in the entire proceeding, and if there is any indication that the prosecutor had a legitimate reason (other than vindictiveness) for increasing the charges, then no presumption of vindictiveness is created. Id.
In United States v. Goodwin, 457 U.S. 368 (1982), the Supreme Court held that a prosecutor's decision to bring additional charges against defendant after defendant refused to plead guilty to the initial charge does not establish prosecutorial vindictiveness. The Goodwin plaintiff was charged with several federal misdemeanor offenses and initially expressed a desire to plea bargain. When defendant later refused to plead guilty and requested a jury trial, the prosecutor decided to increase the charges against plaintiff to a felony count.
The court explained that changes in the charging decision prior to trial could occur both for the benefit of and detriment to the defendant. A plea negotiation may work to a defendant's benefit if the prosecutor decides to drop additional charges, or to a plaintiffs detriment if the prosecutor decides to increase the charges. The court explained:
"An initial indictment — from which the prosecutor embarks on a course of plea negotiation — does not necessarily define the extent of the legitimate interest in prosecution. For just as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded." Id. at 379 (citing Bordenkircher, 434 U.S. at 364, 365 (1977)).
Plaintiff's claim that he was vindictively prosecuted by the filing of additional charges fails under the Goodwin rule. Plaintiff has not established that defendants acted unreasonably as an element of vindictive prosecution. According to Goodwin, a prosecutor may file additional charges after plaintiff decided not to plead guilty to the original claim. Id. Plaintiff's claim for vindictive prosecution is without merit as to all defendants.
Plaintiffs 42 U.S.C. § 1985 Claim Based on Selective Prosecution
42 U.S.C. § 1985 provides a cause of action for individuals injured by conspiracies depriving them of equal protection of the law. Plaintiff alleges defendants violated his equal protection rights by selectively prosecuting him for the additional misdemeanor charges of domestic violence, aggravated menacing, and menacing by stalking brought after the initial misdemeanor stalking charge. (Compl. at 7).
A selective enforcement claim may be brought against officials who apply valid laws against individuals in a discriminatory manner. A plaintiff must demonstrate that the laws were enforced to purposefully discriminate in order to fulfill a prohibited goal. Futurnick v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir. 1996) (evaluating selective enforcement claim under 42 U.S.C. § 1983 ).
A selective enforcement claim can be brought under either 42 U.S.C. § § 1985 or 1983. 42 U.S.C. § 1985(3) prohibits deprivation of equal protection rights under the law. 42 U.S.C. § 1983, however, broadly prohibits the deprivation of any rights under the Constitution. The analysis of a selective enforcement claim under 42 U.S.C. § 1983, therefore, can be applied to a claim brought under 42 U.S.C. § 1985.
In Futurnick, the Sixth Circuit held that laws could not be enforced in order to discriminate based on race, nationality, religion, gender or other "arbitrary classifications." Id. at 1057 (citing Oyler v. Boles, 368 U.S. 448, 456 (1962)). Plaintiff has failed to establish facts to demonstrate that he was prosecuted based on the prohibited discriminatory motive of race, nationality, religion or gender. Plaintiff has stated that he is an African-American, but has not plead facts indicating the defendants' conduct was based on his race.
The Sixth Circuit held that discrimination based on "arbitrary classifications" did not include enforcement against an individual based on malice or personal animosity as a constitutional prohibition, because the action was not class-based. Futurnick, 78 F.3d at 1059. TheFuturnick holding, however, has arguably been criticized by a recent Supreme Court ruling.
In Village of Willowbrook v. Olech, 528 U.S. 562(2000), plaintiff argued that the defendant municipality's demand for a 33-foot easement on plaintiff's property, while requiring only a 15-foot easement for other property owners, violated plaintiff's right to equal protection under the law. The Supreme Court held that plaintiff, a class of one, could still bring a claim for equal protection even though the discrimination was not class-based, where plaintiff alleges intentionally different treatment from others similarly situated and there is no rational basis for the difference in treatment.
In Summers v. City of Raymond, 105 F. Supp.2d 549, 551-552 (S.D. Miss. 2000), the district court held that the Olech opinion invalidates theFuturnick rule that cognizable equal protection claims must be based on class-based or group-based treatment.
The Olech and Sumners holdings, therefore, indicate that plaintiff can establish a cause of action for selective prosecution alleging that defendants brought charges maliciously against plaintiff, by showing similarly-situated persons were treated differently or that defendant lacked a rational basis for its actions.
Plaintiff has not demonstrated that similarly-situated individuals were not prosecuted for similar crimes, or that the defendants had no rational basis to charge him with the crimes. Plaintiff alleges that defendants filed the additional charges to induce him to plead guilty in the original charge of stalking. In light of the Goodwin rule discussed above, a prosecutor makes a rational decision by deciding to bring additional charges after plaintiff would not plead to the original charge. Goodwin, 457 U.S. at 379. In addition, facts in the record demonstrate that the prosecutor did have a basis for charging plaintiff with the crimes.
Plaintiff also alleges that defendant Officer Curtis acted without a rational basis by acting to protect plaintiffs ex-wife, and that Officer Curtis' actions towards plaintiff were based on his subjective belief that plaintiffs ex-wife was telling the truth about her fear of plaintiff The facts do not demonstrate a lack of rational basis, or that other people acting similarly were not treated in the same manner. Plaintiffs claim for selective prosecution is without merit as to all defendants.
Plaintiff's remaining state law claim
Because defendants' summary judgment motion for plaintiffs federal law claims has been granted, plaintiffs remaining state law claim for malicious prosecution is dismissed without prejudice. See Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284 (6th Cir. 1992) (holding that district court did not abuse its discretion by refusing to exercise jurisdiction over plaintiffs state law claim).
Conclusion
For the foregoing reasons, it is ORDERED THAT
Defendants' motion for summary judgment shall be, and hereby is granted as to plaintiffs federal claims. Plaintiffs state law claims are dismissed without prejudice.
So ordered.
James G. Carr United States District Judge
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