LAUSIN v. BISHKO

forth above, the School Board Defendants are entitled to judgment as a matter of law on Plaintiffs' federal claims

Since the Court has determined that none of the individual School Board Defendants violated Plaintiffs' constitutional rights and that the School Board Defendants are entitled to Judgment on Plaintiff's § 1983 claim, there is no need to address Defendants' argument that the individual School Board Defendants are entitled to Qualified Immunity.

. B. State Law Claims

While Plaintiffs have not specifically identified the state claims that they allegedly assert, the School Board Defendants assert that they are entitled to summary judgment on these state law claims because the Board of Education and the individual School Board Defendants are entitled to immunity under Chapter 2744.

The School Board Defendants claim that the only state law claim brought by Plaintiffs is false imprisonment/false arrest. They have argued that a false imprisonment claim against the School Board Defendants fails on its merits because Gina was never arrested or imprisoned by the School Board Defendants as evidenced by the fact that Gina was free to leave the meeting in the Principal's office at any time. Plaintiffs have not responded to this argument. To the extent that Plaintiffs' have asserted a state law claim for false imprisonment/false arrest against the School Board Defendants, the Defendants' Motion for Summary Judgment is granted as to that claim. The City and Police Defendants have read the Amended Complaint to include state claims of false arrest/false imprisonment, malicious prosecution and intentional infliction of emotional distress. To the extent that Plaintiffs intended to assert such state claims against the School Defendants, the School Defendants are immune to all such state claims under Chapter 2744.

The School Board Defendants assert that the Richmond Heights Board of Education is a "political subdivision" as defined by R.C. § 2744.01(F) and, therefore, R.C. Chapter 2744 is applicable. See Pearson v. Warrensvill Hts. City Schools, 8^th App. Dist. No. 88527, 2008-Ohio-1102, citing Bradigan v. Strongsville City Schools, Cuyahoga Ap. No. 88606, 2007-Ohio-2773.

Section 2744.02(A)(1) of the Ohio Revised Code, which provides immunity to political subdivisions in certain circumstances, provides:

For the purposes of this chapter, the functions of political subdivisions are hereby classified as governmental functions and proprietary functions. Except as provided in division (B) of this section, a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.

The next step in the analysis is to determine whether any of the exceptions to immunity under § 2744.02(B) apply to strip the political subdivision of immunity. These exceptions occur when: (1) the injuries are caused by the negligent operation of a motor vehicle; (2) the injuries are caused by the negligent performance of proprietary functions; (3) the injuries are caused by the failure keep public roads, highways and streets open, in repair and free from nuisance; (4) the injuries are caused by negligence on the grounds of a building used for governmental purposes; or (5) the injuries are those for which liability expressly is imposed by the Ohio Revised Code. O.R.C. § 2744.02(B)(1)-(5). If any of the exceptions are applicable, then, under the next step in the analysis, the political subdivision has the burden of demonstrating that one of the defenses set forth in § 2744.03 applies. See Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998). If a defense is applicable, then immunity is reinstated. See id.

The Richmond Heights Board of Education is a political subdivision, and as such, it has immunity under § 2744.02(A)(1). Turning to the second step of the analysis, none of the exceptions to immunity under § 2744.02(B) apply to strip the Richmond Heights Board of Education of its immunity. Accordingly, the Richmond Heights Board of Education has an absolute defense to Plaintiffs' claims under Ohio law.

Moreover, to the extent that Plaintiffs' state law claims are intentional torts, such as a claim for false arrest/false imprisonment, Ohio Courts have found that political subdivisions are immune from intentional torts as the exceptions set forth in R.C. § 2744.02(B) only address negligence. Ziegler v. Mahoning Cty. Sheriff's Dept., 137 Ohio App. 3d 831, 836 (2000). The Richmond Heights Board of Education is entitled to immunity for this additional reason. Accordingly, the Richmond Heights Board of Education is entitled to summary judgment on Plaintiffs' state law claims.

Plaintiffs do not dispute that the Richmond Heights Board of Education is entitled to immunity under Chapter 2744.

The School Board Defendants also argue that the individual School Board Defendants, Mr. Bishko, Dr. Wallace and Dr. Calinger, are entitled to immunity. Section 2744.03(A)(6) provides immunity from liability to employees of political subdivisions. The Richmond Heights Board of Education is a political subdivision and Mr. Bishko, Dr. Wallace and Dr. Calinger are employees of the Richmond Heights Board of Education. Pursuant to § 2744.03(A)(6) employees of a political subdivision are immune from liability unless one of the following exceptions applies:

(a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities;

(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in wanton or reckless manner;

(c) Liability is expressly imposed upon the employee by a section of the Revised Code. R.C. § 2744.03(A)(6)(a)-(c).

Plaintiffs contend that the actions of Dr. Calinger, Dr. Wallace and Mr. Bishko demonstrated maliciousness and recklessness sufficient to exclude them from immunity. "Malice" is defined as the willful and intentional design to harm another by inflicting serious injury without excuse or justification. Garrison v. Bobbitt, 134 Ohio App.3d 373, 384 (1999). "Recklessness" is a perverse disregard of a known risk. O'Toole v. Denihan, 118 Ohio St.3d 374 (2008), at paragraph 3 of the syllabus. The actor must be conscious that his conduct will in all probability result in injury. Id.

Plaintiffs' basis for asserting that the conduct of Mr. Bishko and Dr. Wallace was malicious or reckless was that they deliberately ignored other potential suspects and solely exposed Gina as the lone suspect to the Richmond Heights Police. Plaintiffs offer no support for their allegations of deliberate ignorance of other potential suspects. As noted above, the investigation undertaken by Mr. Bishko and Dr. Wallace comported with the requirements of due process and was carried out in a manner designed to quickly identify potential suspects. As such, Mr. Bishko reviewed the surveillance tape and interviewed several students. Based on this initial review, Dr. Wallace, with Mr. Bishko present, questioned Gina in his office while Gina's mother was present. The interview was short and Gina and her mother left when Mrs. Lausin asked to leave. The fact that Mr. Bishko and Dr. Wallace believed that Gina was the best potential suspect and conveyed that information to the Richmond Heights police does not support a finding that their investigation was flawed or that their conduct was in any way malicious or reckless.

With respect to Dr. Calinger, Plaintiffs claim that his conduct was malicious or reckless because he went forward with the expulsion hearing after it was evident "that something was totally wrong with process." ECF #47 at p. 14. Again, Plaintiffs offer no support or explanation for this statement. While Dr. Calinger decided to expel Gina after an expulsion hearing, there is no evidence that his decision was made with maliciousness or recklessness. In sum, Plaintiffs have failed to show that any of the exceptions to immunity apply to Mr. Bishko or Dr. Wallace or Dr. Calinger. Accordingly, the individual School Board Defendants are entitled both to immunity under § 2744.03(A)(6) for all of Plaintiffs' state law claims.

Thus, for the reasons set forth above, the School Board Defendants' Motion for Summary Judgment (ECF #39) is GRANTED.

II. JOINT MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS MICHAEL GERL, DENISE DEBIASE AND THE CITY OF RICHMOND HEIGHTS

The City of Richmond Heights and Sgt. Michael Gerl and Detective Denise DeBiase move for summary judgment on Plaintiffs' Amended Complaint asserting that there is no genuine issue of material fact with respect to any of Plaintiffs' claims and that they are entitled to judgment as a matter of law on all of Plaintiffs' claims. Plaintiffs bring claims pursuant to 42 U.S.C. § 1983 for unlawful search and seizure under the Fourth Amendment and for violation of Plaintiffs' substantive due process rights under the Fourteenth Amendment against the individual police defendants based upon the police officers' actions in detaining and questioning Gina Lausin. Plaintiffs also assert that the City of Richmond Heights is liable under § 1983 based upon allegations that the City has a pattern and practice of acting contrary to the known law and the City's policies and procedures. Plaintiffs also assert state law claims of false arrest, false imprisonment, malicious prosecution and intentional infliction of emotional distress.

A. False Arrest/Imprisonment Under 42 U.S.C. § 1983

Plaintiffs appear to be alleging that Sgt. Gerl and Detective DeBiase violated Gina's Fourth Amendment rights to be free from unlawful seizure when they transported her to the Police Department and questioned her while her mother was absent. When a § 1983 claim is predicated on a claim of false arrest, false imprisonment, or malicious prosecution under the Fourth Amendment, such claim must fail if probable cause for arrest exists. That is, "[t]he existence of probable cause for an arrest totally precludes any [§] 1983 claim for unlawful arrest, false imprisonment, or malicious prosecution, regardless of whether the defendants had malicious motives for arresting the plaintiff." Hansel v. Bisard, 30 F.Supp.2d 981, 985-86 (E.D. Mich. 1998) ( quoting Mark v. Furay, 769 F.2d 1266, 1269 (7^th Cir. 1985)).

Probable cause to arrest requires "only the probability, and not a prima facie showing, of criminal activity. . . ." Illinois v. Gates, 462 U.S. 213, 235 (1983). Probable cause exists when, at the moment the arrest was made, the facts and circumstances within the officers' knowledge were sufficient to warrant a prudent man to believe that an offense was being committed. See U.S. v. Dotson, 49 F.3d 226, 230 (6^th Cir. 1995) (citations omitted). "[T]here is no precise formula for determining the existence or nonexistence of probable cause; rather, a reviewing court is to take into account `the factual and practical considerations of everyday life' that would lead a reasonable person to determine that there is a reasonable probability that illegality has occurred." U.S. v. Strickland, 144 F.3d 412, 415 (6^th Cir. 1998). If an arrest was made without probable cause, however, courts have long recognized that the individual so arrested may bring a § 1983 claim for false imprisonment. See Baker v. McCollan, 443 U.S. 137, 142-44 (1979).

In this case the evidence shows that Sgt. Gerl and Detective DeBiase acted with probable cause in transporting Gina to the police station and detaining her for questioning. The information that the officers obtained from the school officials, comparison of the writing samples taken from Gina and the writing on the bathroom wall and the notebook found in Gina's locker containing racially demeaning statements supported the officers' determination that Gina should be the first person they questioned. The totality of the circumstances are sufficient to warrant a prudent man to believe that Gina had written the threatening message. Hence, the Police Officer Defendants are entitled to summary judgment on Plaintiffs' false imprisonment claim brought under § 1983.

The Police Officer Defendants also assert that the fact that Gina voluntarily accompanied the officers to the police station and her mother did not object to Gina's going with the officers (presumably arguing that Gina was not arrested, seized or imprisoned), further negates any possible Fourth Amendment violation. While this argument may be true, it is unnecessary as probable cause to arrest and hold Gina for questioning existed.

B. Substantive Due Process Claim

Plaintiffs allege that the police department defendants' actions in bringing Gina to the police department and questioning her without her mother in attendance (the Fourth Amendment Claim), as well as the officer's conduct in obtaining Gina's confession violated Gina's substantive due process rights. An aggrieved person is entitled to raise a substantive due process claim if a particular violation is not covered by a more definite constitutional provision. See Graham v. Connor, 490 U.S. 386, 395 (1989) (if a constitutional claim is covered by a specific constitutional provision, the claim must be analyzed under the standard appropriate to that specific provision, not under substantive due process.) To the extent that Plaintiffs seek to recover for Gina's allegedly unlawful arrest or seizure, that claim is covered by the Fourth Amendment and may not be treated as a separate substantive due process claim. As the Court has already determined that the police defendants had probable cause to arrest and question Gina, Plaintiffs' § 1983 claim alleging a Fourth Amendment violation fails.

Thus, Plaintiffs' claim that the police defendants violated her substantive due process rights is based upon the officer's conduct in questioning her without her mother being present and the methods in which they obtained her confession. Federal courts have long recognized that the touchstone of due process, including substantive due process, "is protection of the individual against arbitrary action of government." County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998). Only the most egregious official conduct can be said to be arbitrary in the constitutional sense of the word. Id. at 846. The test, as articulated by the Supreme Court over a half century ago, is whether the challenged conduct "shocks the conscience." Id. (quoting Breithaupt v. Abram, 352 U.S. 432 (1957), which noted that only conduct which was so brutal and offensive that it did not comport with the traditional ideas of fair play and decency would violate substantive due process).

The "shocks the conscience" standard has been explored over the years by the Supreme Court. What shocks the conscience is dependent upon the context of the situation and each case must be judged on its own specific facts.

It should not be surprising that the constitutional concept of conscience shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort law's spectrum of culpability. Thus, we have made it clear that the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm. We have accordingly rejected the lowest common denominator of customary tort liability as any mark of sufficiently shocking conduct, and have held that the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process. . . . It is, on the contrary, behavior at the other end of the culpability spectrum that would most probably support a substantive due process claim; conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level. See Daniels v. Williams, 474 U.S., at 331, 106 S.Ct., at 665 ("Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property" (emphasis in original)).

County of Sacramento v. Lewis, 523 U.S. 833, 848-849 (1998) Thus, in some instances, courts have applied a "deliberative indifference" standard in cases involving police actions where the police have had time to deliberate before taking action. See Id. at 851. ("As the very term "deliberate indifference" implies, the standard is sensibly employed only when actual deliberation is practical. . . .")

Plaintiffs argue that the conduct of Sgt. Gerl and Detective DeBiase during their questioning of Gina at the police station violated her substantive due process rights — that Defendants' actions "shocked the conscience" or were at the very least, "deliberately indifferent" to a fundamental right of Gina's not to be coerced into a confession.

Whether a person's due process rights were violated in the course of taking his statement hinges on the voluntariness of the statement. U.S. v. Rutherford, 555 F.3d 190, 195 (6^th Cir. 2009); Colorado v. Connelly, 479 U.S. 157, 166 (1986); United States v. Johnson, 351 F.3d 254, 260 (6th Cir. 2003). There is no bright-line rule for determining whether a suspect's statements were given voluntarily. Voluntariness is instead judged by the "totality of the circumstances" in which the person made the statement. United States v. Greene, 250 F.3d 471, 479 (6th Cir. 2001). To frame this analysis, the Sixth Circuit has set forth three factors for courts to consider: "(i) the police activity was objectively coercive; (ii) the coercion in question was sufficient to overbear the defendant's will; and (iii) the alleged police misconduct was the crucial motivating factor in the defendant's decision to offer the statement." United States v. Mahan, 190 F.3d 416, 422 (6th Cir. 1999). Even when the police are conducting a custodial interrogation, the Supreme Court has held that mere deception will not violate a person's due process rights. Moran, 475 U.S. at 423. Rather, "Coercive police activity is a necessary predicate to a finding that a confession is not `voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment." Connelly, supra, 479 U.S. at 166. This is a high standard to overcome and is not satisfied merely by showing that a police officer lied.

Review of the evidence in this situation shows that Plaintiffs have not met this burden. The evidence reflects that Gina's confession was not coerced and was voluntary. The officers gave Gina her Miranda warning and there is no evidence that Gina did not understand her rights. Gina did not request that her mother be present or that she be provided with a lawyer. While the police officers admit misrepresenting certain facts to Gina, such as their claim that they had handwriting analysis finding that Gina had written the Threat and that only four students were in the restroom during the time period at issue, three of whom were African-American, these misrepresentations did not rise to the level of coercive police activity. The Sixth Circuit has held that an officer's use of misleading statements or misrepresentations during an interview does not render a subsequent confession involuntary. Ledbetter v. Edwards, 35 F.3d 1062, 1069 (6^th Cir. 1994) ("A defendant's will is not overborne simply because he is led to believe that the government's knowledge of his guilt is greater than it actually is.") Given the fact that the interview lasted only 15-20 minutes, it is clear that the police did not put overbearing pressure on Gina. Further, Gina was alone when she wrote her confession and apology in her own words. Finally, the suppression of Gina's confession in the juvenile proceedings does not have preclusive effect on this Court as these police defendants were not parties to that action and the legal standards applied in a criminal proceeding versus a civil proceeding involving substantive due process are different. Under the totality of the circumstances in this case, the actions of Sgt. Gerl and Detective DeBiase were not coercive and did not overbear Gina's will sufficient to make her confession involuntary.

Moreover, the fact that Sharon Lausin was not present during Gina's interview does not violate substantive due process. As noted above, Gina did not request that her mother be present and Sharon Lausin consented to Gina's transport to the police station for questioning. The absence of a juvenile defendant's parent does not per se render the defendant's confession involuntary because voluntariness depends on the totality of the circumstances. Williams v. Jones, 117 Fed. Appx. 406, 412 (6^th Cir. 2004). The totality of the circumstances in this case support the finding that the police defendants did not coerce Gina's confession and that her confession was voluntary. Accordingly, Plaintiffs' § 1983 claim against Sgt. Gerl and Detective DeBiase for violation of Gina's substantive due process rights fails.

C. Monell Claim against the City of Richmond Heights

Plaintiffs allege that the supervisors of Sgt. Gerl and Detective DeBiase approved their filing of a complaint against Gina in Juvenile Court and that such approval suggests the existence of a pattern or practice of condoning behavior that is inconsistent with the law and/or policies and procedures of the City of Richmond Heights Police Department. Amended Complaint, ¶ 14. Plaintiffs also assert that the City failed to train Sgt. Gerl and Detective DeBiase. Amended Complaint, ¶ 20.

Moving first the claim of failure to train, A plaintiff may bring a § 1983 claim based on inadequacy of police training only if the alleged failure to train amounts to deliberate indifference to rights of individuals with whom the police come into contact. See Canton v. Harris, 489 U.S. 378, 388 (1989). That is, only where a municipality's failure to train evidences a "deliberate indifference" can such a shortcoming be properly thought of as a "policy or custom" actionable under § 1983. See id. at 389. Simple negligence is thus insufficient to maintain a § 1983 claim based upon a failure to train or supervise. See Hays v. Jefferson County, 668 F.2d 869, 872 (6th Cir. 1982). Deliberate indifference arises if the state actors should have known, either based on a history of constitutional violations or because such likelihood was obvious, that constitutional rights violations were likely absent better training. See Morrison v. Board of Trustees of Green Township, 529 F. Supp. 2d 807, 823 (S.D. Ohio 2007). Based on the foregoing, in order to prevail on such a municipal liability claim, a plaintiff must demonstrate: (1) the training or supervision was inadequate for the tasks performed; (2) the inadequacy was the result of the municipality's deliberate indifference; and (3) the inadequacy was closely related to or actually caused the injury. See id. ( citing Ellis ex rel. Pendergrass v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6^th Cir. 2006)).

Upon thorough review of the record, the Court finds that Plaintiff fails to produce any evidence that City of Richmond Height's training or supervision was inadequate. Even assuming arguendo that the City's training or supervision was inadequate, Plaintiff offers no evidence of the City's deliberate indifference. In sum, because Plaintiffs fail to offer sufficient evidence demonstrating that the training or supervision was inadequate, the inadequacy was the result of the City's deliberate indifference, and the inadequacy was closely related to or actually caused the alleged injury, their § 1983 claim against the City for failure to train fails. Similarly, Plaintiffs have not offered evidence that the City of Richmond Heights maintains an unconstitutional custom or policy for the detention and questioning of juveniles and the filing of complaints of juvenile delinquency. As noted in Section A(4) of this Memorandum Opinion, a plaintiff may only hold a governmental entity liable under § 1983 where its official policy or custom actually serves to deprive an individual of his or her constitutional rights. Gregory v. City of Louisville, 444 F.3d 725, 752 (6^th Cir. 2006). A plaintiff may look to the following in order to establish an illegal policy or custom: (1) the municipality's legislative enactments or official agency policies; (2) actions taken by officials with final decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of tolerance or acquiescence of federal rights violations. See Thomas v. Chattanooga, 398 F.3d 426, 429 (6^th Cir. 2005).

In this instance Plaintiffs attempt to combine two methods-actions taken by officials with final decision making authority and a custom of tolerance of federal rights violations-to establish an illegal policy or custom. Specifically, Plaintiffs argue that Chief Rowe affirmed Sgt. Gerl and Detective DeBiase's unconstitutional conduct, thus making official policy that the City of Richmond Heights knowingly condones unconstitutional conduct. (See ECF #48 at p. 11) Plaintiffs' argument falls short, however, because Chief Rowe did not take any unconstitutional actions. Thus, while Chief Rowe may be an official with final decision making authority, he did not interview Gina or deprive her of any constitutional rights, nor did he refer her case to the juvenile prosecutor. Moreover, even if it could be said that he condoned Sgt. Gerl and Detective DeBiase's conduct, the Court has determined that the conduct of the two officers did not violate Gina's constitutional rights.

Chief Rowe's actions in this case do not support any contention that the City of Richmond Heights has a custom of tolerance for federal rights violations. In order to support a claim for municipal liability on the basis of an unwritten policy of tolerating federal rights violations, a plaintiff must show:

(1) the existence of a clear and persistent pattern of [illegal activity];

(2) notice or constructive notice on the part of the [defendant];

(3) the [defendant's] tacit approval of the unconstitutional conduct, such that their deliberate indifference in their failure to act can be said to amount to an official policy of inaction; and

(4) that the [defendant's] custom was the "moving force" or direct causal link in the constitutional deprivation.

Thomas, supra at 429 citing Doe v Claiborne Cty., 103 F.3d 495, 508 (6^th Cir. 1996)

Plaintiffs fail to make the required showing in several respects. First, Plaintiffs point only to the actions taken against Gina. Thus, they have failed to show a clear and persistent pattern of unconstitutional conduct. The presence of a custom or policy that is unconstitutional cannot be established by evidence of a single instance of allegedly unconstitutional conduct. Id. at 433; Peet v. City of Detroit, 502 F.3d 556, 567-68 (6^th Cir. 2007). Moreover, Plaintiffs cannot show that the City's custom was the moving force or direct cause of Plaintiffs' constitutional deprivation because the Court has found that Gina did not suffer any constitutional deprivation. Accordingly, the Court finds that Plaintiffs have failed to support a claim of municipal liability against the City of Richmond Heights based upon custom and policy or inadequate training. Therefore, the City of Richmond Heights is entitled to summary judgment on Plaintiffs' Monell claim.

Since the Court has determined that neither Sgt. Gerl nor Detective DeBiase violated Plaintiffs' constitutional rights and that they are entitled to Judgment on Plaintiff's § 1983 claim against them, there is no need to address Defendants' argument that the officers are entitled to qualified immunity.

D. State Law Claims of false arrest, false imprisonment and malicious prosecution against Sgt. Gerl and Detective DeBiase.

Plaintiffs' state law claim of false arrest/false imprisonment fails for the same reason as their false arrest/false imprisonment claim brought pursuant to § 1983. The officers had probable cause to arrest and hold Gina for questioning. See Finn v. Vill. Of Amelia, No. 88-10-073, 1989 WL 27770, at *3 (Ohio Ct. App. Mar. 27, 1989) (In an action for false arrest and imprisonment against law enforcement officers under Ohio law, `Fourth Amendment standards for determining lawful and unlawful detentions by the police are to be applied'.) Radvanxky v. City of Olmsted Falls, 395 F.3d 291, 315 (6^th Cir. 2005) (detention based on probable cause defeats false arrest/false imprisonment claim.).

Plaintiffs also appear to allege a state law claim of malicious prosecution asserting that Sgt. Gerl and Detective DeBiase "knowingly, intentionally and egregiously" filed a criminal complaint against Gina Lausin in juvenile court. (Amended Complaint, ¶ 14.) To prevail on a malicious prosecution claim under § 1983 or Ohio common law, Plaintiffs must establish: (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the accused. See Briner v. City of Ontario, No. 1:07CV129, 2007 WL 2891343, at *4 (N.D. Ohio Sept. 28, 2007) ( citing Criss v. Springfield Township, 56 Ohio St.3d 82, 84 (1990)); William v. Cambridge Bd. Of Edn, 370 F.3d 630, 642-43, quoting Trussell v. Gen. Motors Corp., 559 N.E.2d 732, 735 (Ohio 1990).

It is immediately clear that Plaintiffs have failed to establish the first two elements of the claim. There is no evidence that Sgt. Gerl or Detective DeBiase acted with malice in filing a delinquency complaint against Gina in the Cuyahoga County Juvenile Court. There is no evidence that the police officers expressed any desire or applied any pressure for the initiation of criminal proceedings against Gina. As discussed above, the officers had probable cause to believe that Gina had written the threat after she confessed in writing and then again orally in the meeting with her mother and the school officials. Detective DeBiase states in her report that she consulted with Juvenile Prosecutor Brandon Diemert who advised what charges would be brought against Gina. (DeBiase report, p. 3) Accordingly, Plaintiffs have failed to demonstrate malice and a lack of probable cause. It is clear that Plaintiffs cannot demonstrate state law claims of malicious prosecution or false imprisonment/false arrest. Accordingly, Defendants Gerl and DeBiase are entitled to summary judgment on these claims.

E. Intentional Infliction of Emotional Distress ("IIED")

Plaintiffs allege that as a result of the actions of Defendants individually, in concert or collectively, Plaintiffs "suffered great humiliation, embarrassment and emotional trauma and were subjected to the unwarranted scorn and ridicule of their peers and members of their community." (Amended Complaint, ¶ 15) The Supreme Court of Ohio, in Yeager v. Local Union 20, 6 Ohio St. 3d 369, 374 (1983) (abrogated on other grounds), set forth the elements of IIED. "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. . . ." Id. at 374. Emotional distress is severe if "a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case." Paugh v. Hanks, 6 Ohio St. 3d 72, 78 (1983). Examples of serious emotional distress "include traumatically induced neurosis, psychosis, chronic depression, or phobia." Id. Thus, courts only permit liability for IIED where "the conduct has been so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Yeager, 6 Ohio St. 3d at 375. In the case at bar, while Plaintiffs no doubt experienced embarrassment and anxiety in relation to the actions of Defendants, it is clear that their distress did not reach the level required by Yeager and its progeny. Moreover, there is no evidence that Defendants intended to cause Plaintiffs extreme emotional distress, rather they were merely doing their jobs in a professional manner. As discussed above, the Police Defendants had probable cause to arrest and question Gina and after her confessions, were justified in referring her case to the juvenile prosecutor. Defendants actions were in no way extreme or outrageous. Accordingly, the Police and City Defendants are entitled to summary judgment on this claim.

To the extent that Plaintiffs assert an IIED claim against the School Defendants, there is no evidence to support such a claim against those defendants as well.

F. Police and City Defendants Immune from liability on Plaintiffs' state law claims under R.C. Chapter 2744

Even if Plaintiffs' state law claims had merit, the Police and City Defendants are immune from Plaintiffs' state law claims under Chapter 2744. As discussed above with respect to the School Defendants, pursuant to § 2744.02(A)(1), "a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by any act or omission of the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function" unless one of the exceptions set forth in § 2744.02(B) applies. The City of Richmond Heights is a political subdivision as defined in § 2944.01(F) and Sgt. Gerl and Detective DeBiase are employees of the City of Richmond Heights. The provision of police services is a governmental function pursuant to § 2744.01(C)(2)(a).

The exceptions provided in § 2744.02(B) include: (1) the injuries are caused by the negligent operation of a motor vehicle; (2) the injuries are caused by the negligent performance of proprietary functions; (3) the injuries are caused by the failure keep public roads, highways and streets open, in repair and free from nuisance; (4) the injuries are caused by negligence on the grounds of a building used for governmental purposes; or (5) the injuries are those for which liability expressly is imposed by the Ohio Revised Code. R.C. § 2744.02(B)(1)-(5). If any of the exceptions are applicable, then, under the next step in the analysis, the political

subdivision has the burden of demonstrating that one of the defenses set forth in § 2744.03 applies. See Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998). If a defense is applicable, then immunity is reinstated. See id.

In this case, the City of Richmond Heights is a political subdivision providing governmental services and is thus immune under § 2744.02(A)(1) as none of the exceptions set forth in § 2744.02(B) apply. Accordingly, the City is entitled to immunity on all of Plaintiffs' state law claims.

Sgt. Gerl and Detective DeBiase are employees of a political subdivision performing governmental functions. Pursuant to § 2744.03(A)(6) employees of a political subdivision are immune from liability unless one of the following exceptions applies:

(a) The employee's acts or omissions were manifestly outside the scope of the employee's employment or official responsibilities;

(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in wanton or reckless manner;

(c) Liability is expressly imposed upon the employee by a section of the Revised Code. § 2744.03(A)(6)(a)-(c).

The actions of Sgt. Gerl and Detective DeBiase at issue here were clearly within the scope of their employment. As has been determined above, Sgt. Gerl and Detective DeBiase had probable cause to detain and question Gina. Moreover, after obtaining Gina's confession and learning of her subsequent oral confession, the officers had sufficient reason to refer Gina's case to the juvenile prosecutor. There is no evidence that the officers' actions were taken in bad faith or for a malicious purpose or in a wanton or reckless manner. Further, there is no section of the Ohio Revised Code which imposes liability upon the officers. Accordingly, Sgt. Gerl and Detective DeBiase are entitled to immunity on all of Plaintiffs' state law claims.

For the reasons set forth above, the City of Richmond Heights and Sgt. Gerl and Detective DeBiase are entitled to summary judgment on Plaintiffs claims and their Joint Motion for Summary Judgment (ECF #41) is granted.

CONCLUSION

For the reasons set forth above, the Motion of Defendants Nathan Bishko, Terry Wallace, Walter Calinger and Richmond Heights Board of Education for Summary Judgment (ECF #39) and the Joint Motion of Defendants Michael Gerl, Denise DeBiase and the City of Richmond Heights for Summary Judgment (ECF #41) are GRANTED.

IT IS SO ORDERED.