Opinion
Case No. 1:15–cv–00217
01-05-2017
Brandyn M. NORMAN, Plaintiff, v. WARREN COUNTY COURT, et al., Defendants.
Thomas W. Kidd, Jr., Thomas W. Kidd Jr. LLC, West Chester, OH, for Plaintiff. Linda L. Woeber, Brian McAllum Spiess, Montgomery Rennie & Jonson, Cincinnati, OH, for Defendants.
Thomas W. Kidd, Jr., Thomas W. Kidd Jr. LLC, West Chester, OH, for Plaintiff.
Linda L. Woeber, Brian McAllum Spiess, Montgomery Rennie & Jonson, Cincinnati, OH, for Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Judge Susan J. DlottThis matter is before the Court on the Motion for Summary Judgment of Defendants Mary Velde and Bruce Snell. (Doc. 20.) Plaintiff has filed a response in opposition (Doc. 29), to which Defendants have replied (Doc. 30). For the reasons that follow, Defendants' Motion will be GRANTED IN PART.
This Court previously dismissed Defendant Warren County Court in an Order dated December 29, 2015. (Doc. 15 at PageID 68–69.)
Background facts are drawn, in part, from Defendants' Proposed Undisputed Facts (Doc. 20–7 at PageID 289–93), to which Plaintiff failed to respond as required by this Court's Standing Order on Civil Procedures § I.E.3.b. They are drawn also from State v. Norman , 2014-Ohio-5084, 21 N.E.3d 1153 (Ohio Ct. App. 2014). The Court previously took judicial notice of the Twelfth District Court of Appeal's decision in an Order dated December 29, 2015. (Doc. 15 at PageID 64 n.1.)
A. Probationer Bradley Andre
Bradley Andre's first term of probation with the Warren County Court began in February 2009, following a conviction for domestic violence. (Velde Aff., Doc. 20–8 at PageID 295 (¶ 5).) Additional convictions—for operating a vehicle under the influence of alcohol ("OVI") and while under suspension for failure to have proper insurance—followed. (Id. at PageID 295 (¶ 6).) So did additional terms of probation. (Id. ) Andre's most recent term began on July 26, 2012. (Doc. 18–3 at PageID 216–17.) He completed the customary intake sheet. (Doc. 18–3 at PageID 218–19.) Under the section titled "Family Information," he listed only his son, Zack, as an individual living in his "household." (Id. at PageID 218.) Andre also acknowledged the conditions of his probation in writing. (Id. ) An agreement to refrain from the commission of any criminal offense—misdemeanor or felony—and to comply with all instructions—verbal or written—given by his probation officer were among the standard conditions required, along with a "consent to a search of my person, automobile or residence at any time." (Id. at PageID 216.)
Mary Velde was Andre's probation officer from February 2009 through June 2014. (Velde Aff., Doc. 20–8 at PageID 295 (¶ 5).) In late March 2013, Velde received an anonymous tip from a caller that Andre had firearms and "a couple of pot plants" in his basement. (Doc. 18–1 at PageID 93–95.) Possession of marijuana obviously would be a criminal offense, as would possession of a gun inasmuch as Andre had a prior conviction for domestic violence. (Id. at PageID 89–94.) Thereafter, Velde told Andre to expect a home visit so she could "make sure he was doing everything he was supposed to be doing." (Id. at PageID 95.) That visit occurred approximately a week later, on April 5, 2013. (Id. ) For safety's sake, Velde asked her supervisor, Bruce Snell, the Court Administrator, to accompany her. (Id. at PageID 95–96.) In addition, a call was placed to the Hamilton Township Police Department requesting a patrol back-up. (Id. at PageID 96.) Officer Darcey Workman responded. (Id. )
Velde testified that the colleague with whom she usually made home visits was out of the office that day. (Doc. 18–1 at PageID 95–96.)
Andre lived in a single-family home in a residential neighborhood. (Id. at PageID 97.) Only one address and one mailbox appeared on the outside of the dwelling. (Id. ) Upon arrival, Velde knocked on the door and, after five minutes or so, Andre answered. (Id. at PageID 98.) Once inside, she immediately noticed "an aroma of marijuana." (Id. at PageID 100.) So, too, did Officer Workman. (Doc. 18–2 at PageID 151.) Velde proceeded to search the main floor as well as the upstairs bedrooms, while Workman and Snell stayed with Andre—who was seated in his wheelchair —in the kitchen. (Doc. 18–1 at PageID 100–03, 131; Doc. 18–2 at PageID 151–52.) Coming up empty, Velde turned her attention to the basement. (Doc. 18–1 at PageID 103.)
Velde testified that Andre was wheelchair-bound because of unspecified "surgeries." (Doc. 18–1 at PageID 131.) She was unsure how he accessed his bedroom on the second floor, remarking "I didn't ask him if he crawled or what." (Id. ) Andre's testimony suggests he was in a wheelchair in connection with having had a heart attack early in 2013. (Doc. 18–2 at PageID 198, 209.)
B. Tenants Victor Hartsock and Plaintiff Brandyn Norman
Andre told Velde that he had "stuff" in the basement, including a gun safe, but he "wasn't sure" whether any guns were inside. (Id. at PageID 105–06.) He also told Velde that he was renting out his basement to "two guys" who eventually were identified as Victor Hartsock and Plaintiff Brandyn Norman. (Id. at PageID 104–05; Doc. 18–2 at PageID 175–76.) Andre produced "documentation" of this arrangement to the group of police officers now on site. (Doc. 18–1 at PageID 103, 105.) Velde "seen officers looking at it, at a paper," but apparently made no effort to look at it herself. (Doc. 18–1 at PageID 105.)
Access to the basement was through a white interior door that was secured by both a Kwikset entry lock and a keypad deadbolt. (Id. at PageID 104; Doc. 18–2 at PageID 176.) No other doors in the house were secured in this fashion. (Doc. 18–1 at PageID 133–34.) Andre testified that he did not have a key to the entry lock or the combination to the keypad. (Doc. 18–2 at PageID 199–200.) Officer Workman testified that, indeed, Andre did not appear to have the means by which to access the basement. (Id. at PageID 168.)
While Velde was searching the first two floors of Andre's residence, both tenants actually were in the basement. (Id. at PageID 179–80, 187.) And realizing that the police were upstairs, both climbed out a window. (Id. ) Plaintiff Norman ran, but Hartsock re-entered the house through the front door. (Doc. 18–2 at PageID 179–80.) Looking "real fidgety and nervous," Hartsock told Velde that he "stayed" in the basement and asked her why she needed access. (Doc. 18–1 at PageID 107.) Velde explained that she needed to inspect her probationer's gun safe. (Id. at PageID 108–09.) Hartsock then told the police that he had marijuana downstairs and offered to bring it to them. (Id. at PageID 109.) His offer was declined, and the conversation returned to accessing the basement. (Id. at PageID 109, 111.)
Hartsock was asked to unlock the door and he refused. (Id. at PageID 180.) He was told he would be charged with "obstruction of justice" if he did not cooperate. (Id. ; see Doc. 18–1 at PageID 111.) Hartsock again refused, and was handcuffed and arrested. (Doc. 18–2 at PageID 180–81.) With the help of one of the uniformed officers, Velde took two of the three hinges off the door. (Id. at PageID 181.) Before the third hinge was removed, Hamilton Township Sergeant Johnson informed the group that "we"—meaning the Police Department—could not remove the door, but "probation could." (Doc. 18–1 at PageID 111–12; Doc. 18–2 at PageID 181–82.) Velde then removed the third hinge and Snell removed the door itself. (Doc. 18–1 at PageID 112–14.) Velde proceeded down the basement steps where she discovered a marijuana "grow" operation in plain view. (Id. at PageID 112, 117–18, 120–21.) The Hamilton Township Police Department assumed control. (Id. at PageID 121.)
Velde testified that "regardless" of any statement by Sergeant Johnson, she believed that she had the authority to search the basement. (Doc. 18–1 at PageID 112.)
C. The Criminal Charges Against Norman that Followed
Plaintiff Norman eventually was arrested and indicted for the illegal cultivation of marijuana and trafficking in marijuana, as well as possession of buprenorphine (a Schedule III controlled substance), possession of diazepam (a Schedule IV controlled substance), possession of dangerous drugs (trazadone), and possession of criminal tools. (See Doc. 26–2 at PageID 769–70.) He filed a motion to suppress the items seized from the basement, claiming that the search violated his Fourth Amendment rights inasmuch as it occurred without a warrant or consent. State v. Norman , 2014-Ohio-5084, 21 N.E.3d 1153, 1160–61, at ¶ 21 (Ohio Ct. App. 2014). The Warren County Court of Common Pleas denied his motion, holding that the search was lawful given Andre's actual consent, or his apparent authority to consent. Id. Plaintiff thereafter pleaded no contest to the charges in the indictment and was sentenced to a term of community control and a $7,500 mandatory fine. Id. at 1161, at ¶ 22. The Twelfth District Court of Appeals reversed Plaintiff's conviction, however, and this civil action—brought pursuant to 42 U.S.C. § 1983 and state common law —followed.
This offense is a violation of Ohio Rev. Code § 2925.04(A) and, under the circumstances, was deemed a second-degree felony.
This offense is a violation of Ohio Rev. Code § 2925.03(A)(2) and, under the circumstances—more than 5,000 grams in the vicinity of a juvenile—was deemed a second-degree felony.
This offense is a violation of Ohio Rev. Code § 2925.11(A) and, under the circumstances—more than 5,000 grams in the vicinity of a juvenile—was deemed a fourth-degree felony.
This offense is a violation of Ohio Rev. Code § 2925.11(A) and a first-degree misdemeanor.
This offense is a violation of Ohio Rev. Code § 4729.51(C)(3) and a first-degree misdemeanor.
This offense is a violation of Ohio Rev. Code § 2929.24(A) and a fifth-degree felony.
The Court presumes that Victor Hartsock was similarly indicted. Hartsock pled guilty to at least the charge of illegal cultivation and served his sentence at the Hamilton County River City Correctional Center. (Doc. 18–2 at PageID 174–75, 182–83.)
Plaintiff alleges that Defendants Velde and Snell deprived him of his rights under the Fourth and Fourteenth Amendments by virtue of their warrantless search of the basement space he rented from Andre. (Doc. 2 at PageID 12–13 (¶¶ 5.1–5.4).)
Plaintiff alleges that Defendants Velde and Snell are liable for civil trespass under Ohio law. (Doc. 2 at PageID 13 (¶¶ 6.1–6.5).)
D. The State Appellate Court Ruling
The Twelfth District Court of Appeals found no error in the trial court's conclusion that Andre, Hartsock, and Plaintiff Norman were co-tenants residing together "under one roof." Id. at 1163, at ¶ 32. But it was error to conclude that Andre had common authority over the basement such that he could actually consent to its search because: (1) Andre had entered into a written lease agreement with Plaintiff and Hartsock some three months earlier; (2) the agreement called for Plaintiff and Hartsock to have "exclusive use" of the basement in exchange for payment of half of the monthly utility bills; (3) even though Andre stored personal property (i.e. , his gun safe) in the basement, there was no evidence that he was using it or that he could access it without permission; (4) Andre and Hartsock testified that Andre never entered the basement; and (5) Andre and Hartsock further testified that Andre was incapable of entering the basement without a key for the key lock and the combination for the number-pad lock. Id. at 1164, at ¶ 36. The appellate court also found it was error for the trial court to determine that Velde reasonably could have concluded that Andre had apparent authority to consent to a search of the basement in light of Andre's statement that he had rented it out and his production of a written lease confirming same, along with the presence of one of the co-tenants—Hartsock—who refused consent. Id. at 1164–65, at ¶¶ 38–40. It likewise rejected the State's arguments that Plaintiff Norman, by "choosing to live in a home owned by a probationer" assumed the risk of a search or, alternatively, that the "exigent circumstances" exception to the warrant requirement applied. The judgment of the trial court was reversed and the matter remanded, with the instruction that all evidence seized pursuant to the warrantless search of the basement be suppressed. Id. at 1171, at ¶ 59. The State of Ohio did not appeal the decision of the Warren County Court of Appeals, and, on remand to the Warren County Court of Common Pleas, the indictment against Plaintiff was dismissed. (Doc. 2 at PageID 10 (¶ 4.20).)
State v. Norman , supra , 21 N.E.3d at 1165, at ¶ 41.
Id. at 1167–71, at ¶¶ 46–59.
II. STANDARD OF LAW
Although a grant of summary judgment is not a substitute for trial, it is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The process of evaluating a motion for summary judgment and the respective burdens it imposes upon the movant and the non-movant are well-settled. First, "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact[.]" Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; see LaPointe v. United Autoworkers Loc. 600 , 8 F.3d 376, 378 (6th Cir. 1993). This burden may be satisfied, however, by the movant "pointing out to the court that the [non-moving party], having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case." Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A. , 12 F.3d 1382, 1389 (6th Cir. 1993).
Faced with such a motion, the opposing party must submit evidence in support of any material element of the claim or defense at issue in the motion on which it would bear the burden of proof at trial. Celotex , 477 U.S. at 331–32, 106 S.Ct. 2548. As "the requirement [of the Rule] is that there be no genuine issue of material fact," the Supreme Court has made clear that "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Ancillary factual disputes, those "that are irrelevant or unnecessary[,] will not be counted." Id. Furthermore, "[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Id. at 252, 106 S.Ct. 2505. Instead, the opposing party must present "significant probative evidence" demonstrating that "there is [more than] some metaphysical doubt as to the material facts" to survive summary judgment and proceed to trial on the merits. Moore v. Philip Morris Cos., Inc. , 8 F.3d 335, 339–40 (6th Cir. 1993) (applying Anderson , 477 U.S. at 249–50, 106 S.Ct. 2505 ; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ).
At this summary judgment stage, it is not the Court's role "to weigh the evidence and determine the truth of the matter but [rather] to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249, 106 S.Ct. 2505. In so doing, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255, 106 S.Ct. 2505 (citing Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157–59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (citing United States v. Diebold, Inc. , 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) )). Adherence to this standard, however, does not permit the Court to assess the credibility of witnesses. See Adams v. Metiva , 31 F.3d 375, 378 (6th Cir. 1994) (citing Anderson , 477 U.S. at 255, 106 S.Ct. 2505 )).
III. ANALYSIS
A. Absolute Quasi–Judicial Immunity
As the Court acknowledged in its Order denying the Motion to Dismiss filed by Defendants Velde and Snell (Doc. 15), it is well-established that judges are immune from lawsuits for money damages. Mireles v. Waco , 502 U.S. 9, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991). This protection is lost in only two discrete circumstances. The first occurs when a judge acts outside her judicial capacity. Forrester v. White , 484 U.S. 219, 227–29, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (recognizing the "distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform"). And the second arises when an act, though judicial in nature, is taken in "the complete absence of any jurisdiction." Stump v. Sparkman , 435 U.S. 349, 357–58, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Characteristically, when a judge acts to determine whether a probationer is compliant with the terms of his probation, the judge is performing a judicial function. Huffer v. Bogen , 503 Fed.Appx. 455, 461 (6th Cir. 2012) (citing Balas v. Leishman–Donaldson , No. 91–4073, 1992 WL 217735, at *5 (6th Cir. Sept. 9, 1992) (per curiam)).
"[T]he absolute immunity that protects judicial officers engaged in judicial functions also protects other state officials engaged in adjudicative functions." Draine v. Leavy , 504 Fed.Appx. 494, 495 (6th Cir. 2012) (quoting Dean v. Byerley , 354 F.3d 540, 555 (6th Cir. 2004) (per curiam)). Quasi-judicial immunity "extends to those persons performing tasks so integral or intertwined with the judicial process that these persons are considered an arm of the judicial officer who is immune." Id. (quoting Bush v. Rauch , 38 F.3d 842, 847 (6th Cir. 1994) ). In determining whether an individual is entitled to quasi-judicial immunity, courts must examine "the nature and function of the act, not the act itself." Id. (quoting DePiero v. City of Macedonia , 180 F.3d 770, 784 (6th Cir. 1999) ).
Citing Huffer v. Bogen , Defendants contend that Sixth Circuit precedent "consistently" provides probation officers with quasi-judicial immunity when they are investigating whether a probationer is compliant with the terms of his probation. 503 Fed.Appx. at 461 ("[W]hen a judge seeks to determine whether a defendant is complying with the terms of probation, the judge is performing a judicial function.... All of the same considerations that would apply to the judge apply to the probation officer.") (quoting Balas, 1992 WL 217735, at *5 ). And because Velde and Snell were actively investigating whether probationer Andre was in violation of the terms of his probation set by the Warren County Court of Common Pleas, they should be absolutely immune from suit by Andre's tenant. Plaintiff Norman disagrees, arguing that Defendants' forcible entry into Andre's basement—his residence—was not a judicial task, but, rather, one indicative of law enforcement. Moreover, he relies on Draine v. Leavy for the proposition that absolute quasi-judicial immunity does not apply to probation officers investigating whether their probationers are compliant. 504 Fed.Appx. at 495–96.
The Court rejects Plaintiff's theory that Court Administrator Snell is not entitled to quasi-judicial immunity because he "merely tagged along" with Probation Officer Velde. (See Doc. 29 at PageID 837.) Snell testified that when employed by Warren County in that capacity, he "was bound to provide assistance and supervision to all court employees, including probation officers." (Doc. 30–1 at PageID 884 (¶ 4).) The Court Administrator's job description confirms as much, listing as one of his duties to "[s]upervise probation, assignment, judicial clerk and support staff." (Id. at PageID 886.) As noted earlier, Velde testified that she asked Snell, her supervisor, to accompany her to Andre's residence because the colleague with whom she usually made home visits was out of the office that day. (Doc. 18–1 at PageID 95–96.) In this circumstance, the Court concludes that Velde and Snell's claims of immunity should rise or fall together.
In the Sixth Circuit, decisions that are unpublished carry no precedential weight and have no binding effect on anyone other than the parties to the action. Sheets v. Moore , 97 F.3d 164, 167 (6th Cir. 1996). Thus, we need not distinguish Draine v. Leavy from Huffer v. Brogen and can choose freely to be persuaded by one or the other, or by neither.
In contrast, published panel opinions are binding on later panels and are overruled only by the Court en banc . 6th Cir. R. 32.1(b).
It bears repeating that the plaintiff in this civil action is not the probationer; consequently, the Court turns instead to Balas v. Leishman–Donaldson for guidance. Convicted of driving under the influence, defendant Joel Weiner asked Municipal Court Judge Paul Donaldson to sentence him to counselling with a particular therapist—Plaintiff Ronald Balas—rather than to attend Alcoholics Anonymous meetings. 1992 WL 217735, at *1. The judge agreed, but his Chief Bailiff and spouse, Kathleen Leishman–Donaldson, later launched an investigation into Balas' credentials. Id. She claimed she did so to determine whether a fraud upon the court had been committed by virtue of Balas misrepresenting himself as a licensed psychologist. Id. Balas countered that the intrusive inquiry, and the unflattering details about it leaked by Judge Donaldson to the press, were in retribution for him telling the judge and his spouse that one of their family members likely had been the victim of "inter-family" abuse. Id. Balas sued Leishman–Donaldson and her staff of bailiffs in federal court. Defendants moved to dismiss, or, in the alternative, for summary judgment, claiming they were absolutely immune. Id. at *2. Their motion was denied by the district judge, who found that the defense of immunity depended upon "a factual determination of the nature of the function being served by defendants in conducting their investigation of plaintiff [Balas]." Id. (emphasis added). An interlocutory appeal was taken, and the Sixth Circuit agreed that "further development of the facts would be essential" to the immunity analysis. Id. at *5. To the extent court personnel were determining whether Balas should have been "selected to counsel or supervise a criminal defendant," they were not acting in a quasi-judicial capacity. Id. But to the extent they were investigating whether Weiner was complying with the terms of his probation, absolute immunity would attach. Id.
This Court concludes that a question of material fact remains about what function was being served by Velde and Snell when they entered Andre's basement. In July 2012, Andre listed only himself and his son as members of his "household." (Doc. 18–3 at PageID 218.) Yet when she arrived to conduct a home visit on April 5, 2013, Velde was told by Andre that he was renting out his basement to "two guys" and he produced a written lease. Leasing space to tenants was not a per se violation of Andre's probation, but, according to Velde, his failure to inform her of such an arrangement potentially was. (Doc. 18–1 at PageID 105.) Velde observed that, unlike any other door in the residence, the basement door was secured by two different locks. Her probationer told her that he did not have a key to the entry lock or the combination to the keypad. He denied giving her permission to enter the basement. (Doc. 18–2 at PageID 201.) The tenant who arrived on-scene, Victor Hartsock, confirmed that he stayed in the basement and openly admitted that the marijuana that she—and Officer Workman—could smell was his. He refused to unlock the door, even when threatened by the police officers present that he would be criminally charged if he did not cooperate.
A trier of fact reasonably could conclude that, at this point in the chain of events, Velde and Snell had stopped investigating whether wheelchair-bound Andre was compliant with the terms of his probation in favor of exploring whether citizen Hartsock was engaged in criminal activity. If so, the nature of the function in which they were engaged was not judicial in nature, and thus they would not be entitled to absolute quasi-judicial immunity with respect to the constitutional claims asserted by Plaintiff Norman.
Velde testified that she had never seen Andre get out of his wheelchair and was unsure how he navigated steps. (Doc. 18–1 at PageID 131.) Although not paralyzed, a trier of fact may question whether Andre had the physical capacity to retrieve any object stored at the bottom of his basement staircase.
Significantly, there is no evidence that Velde ever filed with the Warren County Court of Common Pleas allegations that Andre had violated the conditions of his probation. (Doc. 18–1 at PageID 123–24, 130, 142.)
Whether Defendants are entitled to the shield of qualified immunity will be examined next.
B. Qualified Immunity
The doctrine of qualified immunity protects government actors "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan , 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ). Prior to the Supreme Court's decision in Pearson , a two-tiered analysis was required, beginning with this threshold question: "Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz , 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (citing Siegert v. Gilley , 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) ). If the answer to that initial inquiry is negative, immunity attaches. If not, "[and] a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id. Pearson ruled that following Saucier 's "two-step protocol" is not mandatory, but remains permissible. 555 U.S. at 242, 129 S.Ct. 808. A lower court, in its discretion, now may consider the second question first if it believes such a path "will best facilitate the fair and efficient disposition" of the case before it. Id. Once a qualified immunity defense is raised, it is the plaintiff's burden to prove that immunity should not attach. Bletz v. Gribble , 641 F.3d 743, 750 (6th Cir. 2011) (citing Ciminillo v. Streicher , 434 F.3d 461, 466 (6th Cir. 2006) ).
As they did in their Motion to Dismiss, Defendants Velde and Snell insist that the decision to search the basement was not an unreasonable one, notwithstanding the Twelfth District Court of Appeal's ultimate ruling that it violated Plaintiff's Fourth Amendment rights. Ohio Rev. Code § 2951.02(A) authorized their warrantless search of Andre's residence to determine whether he had violated the terms of his probation. The criminal charges that resulted against Plaintiff Norman, Andre's tenant, were simply "incidental" to the legitimate purpose of their search. (Doc. 20 at PageID 245.) Moreover, at the time of the search, the law still was "unsettled" on the issue of a co-tenant's ability to consent within the context of a probation search. (Id. at PageID 244.) Daughenbaugh v. City of Tiffin , 150 F.3d 594 (6th Cir. 1998), therefore, dictates a finding of immunity.
In moving for summary judgment, Defendants initially relied on Ohio Rev. Code § 2967.131(C), which provides in pertinent part:
During the period of a conditional pardon or parole, of transitional control, or of another form of authorized release from confinement in a state correction institution that is granted to an individual and that involves the placement of the individual under the supervision of the adult parole authority, and during a period of post-release control of a felon imposed under section 2967.28 of the Revised Code , authorized field officers of the authority who are engaged within the scope of their supervisory duties or responsibilities may search, with or without a warrant, the person of the individual or felon[ and] the place of the residence of the individual or felon [ ] ... if the field officers have reasonable grounds to believe that the individual or felon ... is not abiding by the law, or otherwise is not complying with the terms and conditions of the individual's or felon's conditional pardon, parole, transitional control, other form of authorized release, or post-release control.
(Emphases added.) Plaintiff countered that § 2967.131(C) was inapplicable, because neither he—nor his landlord, Andre—were under supervision by the Ohio Adult Parole Authority and because Andre was on probation for a misdemeanor—not felony—conviction. Not so, Defendants maintain, citing three unpublished Ohio appellate court opinions for the proposition that § 2967.131(C) empowers both parole and probation officers. Indeed, the Twelfth District assumed as much in reversing the trial court's ruling denying Plaintiff Norman's motion to suppress. State v. Norman , supra , 21 N.E.3d at 1162, ¶ 28. Regardless, the statutory reference substituted in Defendants' reply brief, Ohio Rev. Code § 2951.02(A), corrects any mistake:
During the period of a misdemeanor offender's community control sanction or during the period of a felony offender's nonresidential sanction, authorized probation officers who are engaged within the scope of their supervisory duties or responsibilities may search, with or without a warrant , the person of the offender, the place of residence of the offender [ ...] if the probation officers have reasonable grounds to believe that the offender is not abiding by the law or otherwise not complying with the conditions of the misdemeanor offender's community control sanction or the conditions of the felony offender's nonresidential sanction.
(Emphases added.)
In Daughenbaugh , a homeowner brought a Section 1983 action against law enforcement officers (police and probation) who conducted a warrantless search of his backyard and unattached, remote garage. They did so after a suspect, arrested in connection with a series of burglaries in the neighborhood, confessed that he had hidden the stolen goods in the homeowner's garage without his knowledge. Id. at 596. The Sixth Circuit found a Fourth Amendment violation, but determined that the officers were entitled to qualified immunity. Id. at 602–04. The illegal search occurred before release of United States v. Jenkins , 124 F.3d 768 (6th Cir. 1997), the case in which the Sixth Circuit held that one's backyard is "definitely" part of the curtilage of one's home entitled to constitutional protection. 150 F.3d at 603. Acting on the suspect's admission, "reasonable" officers could have concluded that they were allowed to enter the backyard, spot the stolen items, and confiscate the goods. Id.
Plaintiff counters persuasively that, here, there is no Jenkins equivalent of a newly-established right. (Doc. 29 at PageID 840.) And while, admittedly, "the very action in question" has not previously been held unlawful, that absolute is not the standard. Rather, "[f]or a constitutional right to be clearly established, its contours ‘must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in light of pre-existing law the unlawfulness must be apparent .’ " Hope v. Pelzer , 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quoting Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ) (emphases added).
As noted by the Twelfth District, the Supreme Court has held that a warrantless search of a residence is lawful when consent is obtained from a joint tenant with "common authority" over the premises, even when the other co-tenant objects. United States v. Matlock , 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). It is also lawful when, at the time of entry, authorities reasonably believed that the joint tenant possessed common authority but in fact did not. Illinois v. Rodriguez , 497 U.S. 177, 188–89, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).
State v. Norman , supra , 21 N.E.3d at 1163, at ¶ 34.
Before this Court are the following undisputed facts regarding Andre's common authority, actual or apparent, with respect to the basement. Having not found the source of the smell of fresh marijuana or any guns on the main floor or upstairs bedrooms, Velde asked to access the basement. Andre then told Velde that he was renting out his basement to "two guys." He produced a written lease that, for reasons unknown, Velde ignored. Had she looked at it, she would have read from this pre-printed, fill-in-the-blank form that, beginning on January 11, 2013, "Brandyn Norman" and "Henery Hartstock" had rented the "basement area" of Andre's home for a period of "6 months and 0 days." (Doc. 18–3 at PageID 226.) Monthly rent was "1/2 utilities (gas/electric/cable/internet)." (Id. ) Consistent with excluding others from access, the basement door, unlike any other door in the house, was secured by both a Kwikset entry lock and a keypad deadbolt. Andre denied having a key to the entry lock or the combination to the keypad, and Officer Workman—serving as police back-up to Velde and Snell—believed him. Enter one of the tenants, Hartsock, who confirmed that he stayed in the basement and, admitting that the "pot" she smelled was his, refused to unlock the door. Threatened with being charged with obstruction of justice, Hartsock still refused and was arrested.
Andre testified:
You know, I had a heart attack, I was in a wheelchair, you know, I wasn't in very good physical condition and I couldn't enter the premises whatsoever. I was away from everything. I stayed in my one room.
(Doc. 18–2 at PageID 209.)
Defendant Velde maintains that she was justified in continuing her search because Andre had failed to tell her that anyone other than his son —as he had indicated on his probation intake form completed some six months earlier—was living with him. Velde testified that she routinely instructed her probationers, Andre included, that she required notice of "any changes whatsoever" from the information recorded at the time of intake. (Doc. 18–1 at PageID 128–30.) Yet Velde also testified that the terms of Andre's probation did not necessarily preclude him from renting out a portion of his residence.
And, in fact, Zack Andre was present when Velde conducted her home visit. (Doc. 18–1 at PageID 101.)
To the contrary, Andre, who was on "non-reporting" probation, testified that he "didn't really understand that [instruction]." (Doc. 18–2 at PageID 183, 204.)
The Court is not persuaded that a reasonable probation officer would conclude that Andre had "common authority"—actual or apparent—of the basement area of his single-family home on April 5, 2013. And without common authority, the question of Andre's "consent" to search—which the Court also finds lacking —is moot. The Supreme Court cases cited by the Twelfth District were decided in 1974 ( Matlock ) and 1990 ( Rodriguez ), and thus Daughenbaugh offers no safe haven to Velde. In the circumstance of joint tenants, the Supreme Court long-ago outlined the contours of a permissible warrantless search, and the situation confronting Velde on April 5, 2013 fell outside the boundaries. Qualified immunity, therefore, will be denied.
When asked if Andre gave her permission to access the basement, Velde testified, "He didn't tell me no. He just said he didn't know the combination." (Doc. 18–1 at PageID 134.) In the Court's view, a failure to say "no" is not tantamount to saying "yes."
C. Proximate Cause, Inevitable Discovery, and Damages
The parties do not dispute that Defendants' initial entry into Andre's home—complete with police back-up—and Velde's subsequent search of the main floor and upstairs rooms were lawful. At issue instead, clearly, is Velde's choice, despite being told that Andre had leased the space to Hartsock and Norman, to force entry and continue her search into the basement. Yet even if unconstitutional, Defendants argue that any damages that flow from Velde's conduct are not compensable.
Among the arguments rejected by the Twelfth District Court of Appeals was the state's theory that, even if Andre lacked authority to consent to the search of the basement, Velde's act of entering the basement was nonetheless permissible pursuant to the exigent circumstances exception to the warrant requirement. Although the appellate court agreed that probable cause for entry into the basement existed, it decided that there was no "real likelihood" that the evidence in the basement was in danger of being destroyed in the amount of time it would have taken the police to secure a warrant. State v. Norman , supra , 21 N.E.3d at 1167–71, at ¶¶ 47–58. Thus, the decision by the trial court was reversed and all evidence of the marijuana "grow" operation seized during the warrantless search of the basement was ordered suppressed.
"[P]roximate causation is an essential element of a § 1983 claim for damages." Horn ex rel. Parks v. Madison Cnty. Fiscal Court , 22 F.3d 653, 659 (6th Cir. 1994) (citing Doe v. Sullivan Cnty. , 956 F.2d 545, 550 (6th Cir. 1992) ). That element is lacking here, Defendants suggest, because of the Twelfth District's express finding that probable cause would have supported law enforcement's application for a warrant, leading to the inevitable arrest, prosecution, and conviction of Plaintiff Norman:
Here, probable cause for entry into the basement existed as Velde had received information that there were firearms and marijuana plants in the basement, Velde had been advised by her probationer that a gun safe that may or may not contain firearms was down in the basement, Velde and Workman smelled a strong odor of fresh marijuana upon entering Andre's residence, and Hartsock admitted to law enforcement he had marijuana downstairs in the basement. These facts, when taken together, provided Velde and Workman with probable cause to believe that contraband or evidence of a crime would be found in the basement.
State v. Norman , 21 N.E.3d at 1167–68, at ¶ 49. Plaintiff counters, and the Court concurs, that Defendants' theory is academic.
To succeed on his Section 1983 claim, Plaintiff Norman must establish that he was deprived of a right secured by the federal Constitution. O'Brien v. City of Grand Rapids , 23 F.3d 990, 995 (6th Cir. 1994). He must also establish that the deprivation was caused by a state actor and occurred without due process of law. Id. As for damages, their "basic purpose" is to compensate a person for any injury caused by the deprivation. Chatman v. Slagle , 107 F.3d 380, 385 (6th Cir. 1997) (quoting Memphis Cmty. Sch. Dist. v. Stachura , 477 U.S. 299, 307, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) ). Accordingly, the severity of harm "should govern the amount, not the availability , of recovery." Id. (emphasis added). "Where no harm is proven, nominal damages will be awarded. Where any harm is shown, then, damages proportionate to that harm should be awarded." Id. (citation omitted).
Brandyn Norman is not a sympathetic plaintiff. He and Victor Hartsock undeniably were engaged in illegal activity of which this Court strongly disapproves. But assuming immunity does not attach after further development of the record at trial, and further assuming all necessary elements are proved, it will be for the jury to decide whether Defendants' actions caused Plaintiff Norman harm and to place a dollar value on that harm.
D. Immunity under Ohio Rev. Code § 2744.03
Finally, Defendants Velde and Snell urge that they are entitled to statutory immunity with respect to Plaintiff Norman's civil trespass claim. The Court agrees.
When an employee of a political subdivision (such as Warren County, Ohio) is sued in his or her personal capacity, Ohio Rev. Code § 2744.03 governs the immunity analysis. Immunity attaches unless the employee acts manifestly outside the scope of his or her employment or official responsibilities, or with malicious purpose, in bad faith, or in a wanton or reckless manner. Ohio Rev. Code § 2744.03(A)(6)(a), (b). Ohio courts have interpreted the "bad faith" exception in the following manner:
The statute does not further define conduct that falls "manifestly outside the scope" of an employee's employment or responsibility. Accordingly, drawing from agency law principles, Ohio courts consider whether the conduct was initiated "to further or promote the master's business."Chesher v. Neyer , 477 F.3d 784, 797 (6th Cir. 2007) (quoting Martin v. Cent. Ohio Transit Auth. , 70 Ohio App. 3d 83, 590 N.E.2d 411, 417 (1990) ). For the reasons it rejected the premise that Defendant Snell, as Court Administrator, could not be entitled to absolute quasi-judicial immunity, supra note 16, so, too, does the Court dismiss the notion that "[t]here is no reason to believe that [he] was in any manner promoting the business of his master, the Warren County Court." (See Doc. 29 at PageID 843.)
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One acts with a malicious purpose if one willfully and intentionally acts with a purpose to cause harm. Malice includes "the willful and intentional design to do injury, or the intention or desire to harm another through conduct which is unlawful or unjustified." Bad faith is defined as a "dishonest purpose, moral obliquity, conscious wrongdoing, or breach of a known duty through some ulterior motive or ill will." A person acts wantonly if that person acts with a complete "failure to exercise any care whatsoever." One acts recklessly if one is aware that one's conduct "creates an unreasonable risk of physical harm to another[.]" Recklessness is more than mere negligence in that the person "must be conscious that his [or her] conduct will in all probability result in injury."
Pritchard v. Hamilton Twp. Bd. of Trs. , 424 Fed.Appx. 492, 509 (6th Cir. 2011) (quoting Spears v. Akron Police Dept. , No. 24847, 2010 WL 625822, at *4, at ¶ 15 (Ohio Ct. App. Feb. 25, 2010) ) (citations omitted) (emphasis added).
Plaintiff Norman maintains that Velde and Snell acted recklessly in forcibly removing the door to the basement and entering their premises. Yet there is no allegation that they either caused ( Spears ), or threatened to cause ( Pritchard ), him physical harm. And, as explained with respect to federal qualified immunity, there is no evidence that Velde and Snell actually knew —and thus were conscious —that forcibly removing the basement door without a warrant ran afoul of Norman's constitutional rights. On this basis, then, the Court concludes that Defendants Velde and Snell are immune from suit on Plaintiff's supplemental claim.
IV. CONCLUSION
For the all the foregoing reasons, the Motion for Summary Judgment of Defendants Mary Velde and Bruce Snell is hereby GRANTED with respect to Plaintiff Brandyn Norman's Second Claim for Relief (Trespass), but is DENIED in all other respects.
IT IS SO ORDERED .