O'Donnell v. Yezzo

Debra O'Donnell, et al., Plaintiffs v. G. Michelle Yezzo, et al., Defendants

Case No. 3:17CV2657

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION

November 26, 2018

ORDER

This is a civil rights case.

Plaintiff Debra O'Donnell brings representative due process claims, on behalf of her late father, James Parsons under 42 U.S.C. § 1983; she also brings related state law claims. O'Donnell's claims arise out of her father's conviction, which an Ohio state court vacated, for murdering his wife.

O'Donnell alleges that, during the murder case, defendants 1) failed to disclose exculpatory evidence and falsified forensic evidence; and 2) maliciously prosecuted her father. Defendants include the City of Norwalk, Ohio, plus four individual defendants: G. Michelle Yezzo, a forensic scientist at the Ohio Bureau of Criminal Investigation (BCI); Daniel Cappy, BCI Laboratory Director; John Lenhart, BCI Superintendent; (the State defendants) and Michael White, a Norwalk Police Detective (the City defendants).

Additionally, O'Donnell (who administers her father's estate) and her sister, Sherry Parsons, bring a personal negligent infliction of emotional distress claim against White and a personal loss of consortium claim against White and the City.

Now pending are the State defendants' motion to dismiss (Doc. 13) and the City defendants' motion for judgment on the pleadings (Doc. 20).

For the reasons that follow, I grant the State Defendants' motion, and I deny the City Defendants' motion in part and grant it in part.

Background

James Parsons served twenty-three years in prison after a Huron County, Ohio jury convicted him of murdering his wife, plaintiffs' mother, Barbara Parsons. (Doc. 1 at 10, ¶¶ 50-51). On completing his sentence, he moved for post-conviction relief, and, on April 21, 2016, the trial court vacated his conviction and ordered a new trial. (Id. at 13, ¶ 64).

The events leading to the conviction began on On February 12, 1981, when plaintiff Sherry Parsons found her mother in her bedroom, beaten to death. (Id. at 5, ¶¶ 19-20). A police investigation revealed that a half-inch Craftsman breaker bar was the murder weapon. The Norwalk Police Department recovered two such breaker bars, but forensic testing linked neither breaker bar to the murder. (Id. at 6-7, ¶ 26). Despite a year-long investigation, the Department filed no charges. (Id. at 7, ¶ 27).

More than ten years later, defendant Detective White reopened the case. White handled the physical evidence from the investigation, including sheets from the bedroom, Mrs. Parsons's nightgown, and the two breaker bars. (Id. at ¶¶ 28, 30).

White submitted this evidence, choosing one of the two breaker bars, to four different forensic investigative agencies, including BCI. (Id. at 7-8, ¶¶ 31-33). The breaker bar Whitesubmitted apparently was not the murder weapon, and plaintiffs allege White knew as much. (Id. at 8-9, ¶¶ 34-35, 43-44). The investigative agencies reached inconclusive results. (Id. at 7-8, ¶¶ 31-32).

White next resubmitted the evidence to BCI, thereby engaging Yezzo's services. Yezzo's findings connected the breaker bar to the imprints on the sheet. (Id. at 8, ¶ 33). She claimed that she observed on the sheet mirror images of the letters "N" and "S" from the breaker bar's handle and unique markings from the breaker bar's end. (Id. at ¶ 36). Yezzo testified about her findings at grand jury proceedings and the murder trial. (Id. at 9-10, ¶¶ 45, 48-49).

O'Donnell and Parsons allege that Yezzo's investigation was flawed. First, they allege that White knowingly turned over the wrong breaker bar for testing. (Id. at 9, ¶ 43). Second, they allege that Yezzo used unreliable testing methods skewed her results to please Detective White. Moreover, Yezzo's personnel file at BCI indicated that she was known to "stretch the truth to satisfy a department" and that she showed signs of mental instability. (Id. at 2, ¶ 1).

The prosecution did not turn over Yezzo's personnel file to the accused father's attorney before or during the murder trial. (Id. at 11, ¶ 52). On the father's post-trial motion to vacate his conviction, the state court judge found that "this evidence could have been very useful to the defense in its cross-examination of Ms. Yezzo."¹ Citing Yezzo's unreliability, the judge vacated the conviction. (See Attachment A).

Standard of Review

Federal Rule of Civil Procedure 12(c) provides that, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings."

Both parties agree that the City Defendants' Rule 12(c) motion is premature, given that the pleadings are not closed because the remaining defendants have not filed an answer. Horen v. Bd. of Educ. of Toledo Sch. Dist., 594 F. Supp. 2d 833, 840 (N.D. Ohio 2009) (Carr, J.). They also agree, as do I, that I can and should treat the 12(c) motion as a motion to dismiss under Fed. R. Civ. P. 12(b)(6). (Doc. 20 at 3; Doc. 23 at 4); see also Horen, supra, 594 F. Supp. 2d at 840. Therefore, I apply the standard of review applicable to motions to dismiss under Fed. R. Civ. P. 12(b)(6) to both of the pending motions.

To survive a motion to dismiss under Rule 12(b)(6), the complaint "must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. At this stage, I must "draw all reasonable inferences in favor of [plaintiffs]." Courtright v. City of Battle Creek, 839 F.3d 513, 520 (6th Cir. 2016).

Discussion

A. Constitutional Claims

O'Donnell claims that defendants violated her father's Fourteenth Amendment due process rights in two ways: 1) by withholding and failing to investigate exculpatory evidence and falsifying evidence (the Brady claims) and 2) by maliciously prosecuting the accused father's criminal case.

1. O'Donnell Has Standing in This Case

Article III, § 2 of the Constitution authorizes the federal courts to hear only "Cases" and "Controversies."

"Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy." Spokeo, Inc. v. Robins, --- U.S. ---, ---, 136 S.Ct. 1540, 1547 (2016). The doctrine "seeks to ensure the plaintiff has a personal stake in the outcome of the controversy." Sumpter v. Wayne Cnty., 868 F.3d 473, 490 (6th Cir. 2017). The "irreducible constitutional minimum of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, supra, --- U.S. at ---, 136 S.Ct. at 1547 (internal citations and quotation marks omitted).

The parties dispute whether O'Donnell has standing to bring the § 1983 claims on behalf of her late father.²

Defendants argue that the § 1983 claims abated of her father. They further argue that O'Donnell must allege a physical injury for Decedent's claims to survive. O'Donnell, citing the Sixth Circuit's recent decision in Crabbs v. Scott, 880 F.3d 292 (2018) disputes that contention.

I agree with O'Donnell that the claims survived her father's death.

To determine whether § 1983 claims did so, I must "first look to federal law for an applicable rule of decision." Crabbs, supra, 880 F.3d at 294 (internal citation omitted). "If no suitable federal rule exists," I apply Ohio law "to the extent it is 'not inconsistent with the Constitution and the laws of the United States.'" Id. (quoting Robertson v. Wegmann, 436 U.S. 584, 588-95 (1978)).

Federal law is silent regarding survival of § 1983 claims. Id. Therefore, Ohio's survivorship statute, O.R.C. § 2305.21, applies. Under that provision, "In addition to the causes of action which survive at common law, causes of action for . . . injuries to the person or property . . . also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto."

The Sixth Circuit in Crabbs established that the § 1983 claims survived the father's death: "§ 1983 claims are best characterized as personal injury actions." 880 F.3d at 295. The court further held that the plaintiff need not allege a physical injury for the claim to survive. Id. at 296 (noting the Ohio Supreme Court has not required such a showing). In reaching its holding, the court in Crabbs encouraged a "straightforward and uniform characterization of § 1983 claims." Id. at 295. Indeed, the court explained, "all § 1983 claims must be characterized the same way." Id. at 294.

Therefore, under Crabbs, the father's § 1983 claims survived his death, and O'Donnell need not show a physical injury to maintain those claims as his representative.³

2. Yezzo Is Not Absolutely Immune fromSuit for Her Non-Testimonial Acts

Yezzo argues that she enjoys absolutely immunity from O'Donnell's § 1983 claims.

"[I]n litigation brought under 42 U.S.C. § 1983, all witnesses - police officers as well as lay witnesses - are absolutely immune from civil liability based on their testimony in judicial proceedings." Briscoe v. LaHue, 460 U.S. 325, 328 (1983). But absolute immunity does notinsulate all of the witness's actions. Accordingly, I must apply a "functional approach" to determine whether absolute immunity protects Yezzo. See Rehberg v. Paulk, 566 U.S. 356, 363 (2012) (internal quotations omitted). Using this approach, I examine "the nature of the function[s] performed" to "determin[e] whether [Yezzo's] actions ... fit within a common-law tradition of absolute immunity." Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).

Yezzo claims that she is absolutely immune from suit because "Plaintiff has used [her] grand jury testimony and trial testimony as a basis for a federal malicious prosecu...