NERSWICK v. CSX Transp., Inc., C-1-07-461.

692 F. Supp.2d 866

Thomas A. NERSWICK, Plaintiff, v. CSX TRANSPORTATION, INC., et al., Defendants.

No. C-1-07-461.

United States District Court, S.D. Ohio, Western Division.

February 19, 2010.

John J. Helbling, The Helbling Law Firm, L.L.C., Cincinnati, OH, for Plaintiff.

M. Scott McIntyre, John B. Lewis, Baker & Hostetler LLP, Cincinnati, OH, for Defendants.

ORDER

HERMAN J. WEBER, Senior District Judge.

This matter is before the Court upon defendants' motion for summary judgment (doc. 24), plaintiff's opposing memorandum (doc. 27), and defendants' reply (doc. 35). Defendants have filed proposed findings of fact and conclusions of law, which plaintiff has highlighted as true, false or irrelevant (doc. 44). An oral hearing was held on August 5, 2009. Following the hearing, the parties filed supplemental briefs, which are also before the Court in connection with the summary judgment motion. Docs. 48, 50, 51.

I. Background

Plaintiff Thomas A. Nerswick brings this action against defendants CSX Transportation, Inc. (CSXT) and CSXT police officers James Dugger and Chris Minges. Plaintiff asserts claims under 42 U.S.C. §§ 1983 and 1988 for violations of his rights under the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. Plaintiff also brings claims for violations of his rights under Article I, §§ 1, 9 and 14 of the Ohio Constitution and under Ohio law for false arrest and imprisonment, malicious prosecution, assault, battery, negligence, and infliction of emotional distress.¹

II. Allegations of the amended complaint

Plaintiff makes the following allegations in the amended complaint: On or about June 9, 2006, an individual employed by plaintiff at his place of business located on Hopple Street in Cincinnati, Ohio, came into plaintiff's office to inform him that two pieces of metal had fallen into the road in front of the office. Plaintiff went outside and saw two large pieces of metal in the road and cars swerving to avoid the metal and driving onto the sidewalk around the metal. Plaintiff retrieved the metal, placed it into his van to get it off the street, and took it to a recycling business that was very close to his business. The recycling center paid plaintiff $310.00 for the metal.

Several days later, during the business day while plaintiff was in his vehicle with several clients, defendants contacted plaintiff by telephone from plaintiff's home in Fort Mitchell, Kentucky. They demanded that plaintiff immediately pull his car to the side of the road and wait for them to arrive. After explaining that he was with clients, plaintiff arranged to meet with defendants the next day. Plaintiff met with defendants on June 13, 2006. At that time, Dugger and Minges stated that they knew plaintiff possessed some metal belonging to "Defendant" and that they had a warrant for his arrest. Plaintiff told Dugger and Minges that he had found the abandoned metal in the middle of the street, it was causing a dangerous situation, he had picked it up and placed it in his van to avoid further danger, and he had taken it to the scrap yard for disposal. He stated there was evidence and he had witnesses to corroborate his version of the facts. Defendants refused to listen to plaintiff or to investigate the facts. They handcuffed plaintiff, placed him in their company vehicle, and took him to their corporate office, where they interrogated him. They informed him that they were taking him to jail and charging him with receiving stolen property under Ohio Rev. Code § 2913.51.

Plaintiff was then handcuffed and escorted out of the CSXT building to an awaiting CSXT vehicle. Plaintiff asked Dugger to check the handcuffs as they were too tight and were digging into his wrists and cutting off the circulation. Instead of loosening the handcuffs, Dugger viciously tightened them, causing excruciating pain and the wrists to go numb.

Plaintiff was incarcerated at the Hamilton County Justice Center until June 14, 2006, when he was released on an "Own Recognizance" bond. Upon being released from the Justice Center, plaintiff secured the representation of a criminal defense attorney. On June 26, 2006, the Hamilton County Grand Jury convened on plaintiff's criminal case but declined to indict plaintiff on the charge of receiving stolen property.

For his first claim, plaintiff makes the following allegations: Defendants did not have probable cause to arrest him. They failed to properly investigate the facts prior to swearing to his alleged misconduct in the affidavit. They acted in concert under color of state law, and they acted willfully, callously, wantonly and recklessly and intentionally deprived plaintiff of his civil rights, including his rights not to suffer punishment and not to be deprived of his life and liberty without due process of law. Defendant CSXT failed to establish adequate policies and procedures to properly train and/or supervise defendants Dugger and Minges on appropriate uses of force and other police tactics, which directly led to a deprivation of plaintiff's civil rights.

As his second claim, plaintiff alleges that defendants violated their duties to fully investigate all allegations before signing an affidavit or complaint against him and to follow police procedures under Ohio law and act reasonably in the arrest of plaintiff without impinging on his health or safety; defendant Dugger committed assault, battery and negligence by handcuffing plaintiff so tightly as to cause him to lose all feeling in his wrists; and as a result of the actions of all defendants, plaintiff suffered humiliation, personal injury, loss of enjoyment of life, and a loss of liberty.

As his third claim, plaintiff alleges that as the employer and principal of the individual defendants, CSXT is vicariously liable for their actions.

The fourth claim is a claim for malicious prosecution based on the allegation that the affidavit signed by defendants lacked probable cause and resulted from information known by them to be false and incomplete.

As his fifth claim, plaintiff alleges that defendants were derelict in their duties by detaining and confining him after being placed upon notice that (1) additional exculpatory information existed which required further inquiry and (2) there was no basis for plaintiff's arrest.

The sixth claim is a claim for intentional infliction of emotional distress based on defendants'"continuing prosecution of the charges against Plaintiff."

III. Motion for summary judgment

Defendants move for summary judgment on all claims against them. Dugger and Minges argue that they are entitled to summary judgment on plaintiff's § 1983 claims because while acting in their capacity as railroad policemen employed by CSXT and vested with police powers by Ohio law, (1) they arrested Nerswick pursuant to a judicially-issued warrant, and (2) a Hamilton County, Ohio Judge separately found probable cause to hold plaintiff over after his arrest. They further contend that they are entitled to qualified immunity on the § 1983 claims because plaintiff cannot meet his legal burden of establishing that their conduct was "plainly incompetent" or that they "knowingly violated the law."

Defendant CSXT argues it is entitled to summary judgment on plaintiff's § 1983 claims because he does not have a viable federal claim against Dugger and Minges, so there is no basis for holding CSXT liable for a violation of plaintiff's federal rights. Additionally, CSXT contends that it cannot be held liable under § 1983 because plaintiff has presented no evidence of a wrongful or injurious policy or custom of CSXT that resulted in any constitutional injury to him.

Defendants contend that they are entitled to summary judgment on plaintiff's state law claims on the following grounds: (1) plaintiff's claims for malicious prosecution and abuse of process fail because there was probable cause for his arrest; (2) his abuse of process claim fails for the additional reason that there is no evidence of an "ulterior purpose" behind his prosecution; (3) plaintiff has failed to state allegations to support an Eighth Amendment claim; (4) plaintiff cannot proceed on an excessive force claim under the Fourth Amendment because he has conceded that he suffered no physical injury and he complained of no injury; (5) plaintiff's false imprisonment claim fails because the fact that an arrest was made pursuant to a facially valid warrant is normally a complete defense to a claim for false arrest or false imprisonment and, in any event, Dugger and Minges acted with probable cause and are entitled to qualified immunity; and (6) the intentional infliction of emotional distress claim fails because the facts alleged do not support a finding that plaintiff was subjected to extreme or outrageous conduct or that he suffered serious emotional distress.

In response, plaintiff argues that Dugger and Minges had no probable cause to arrest him; they are not entitled to qualified immunity on the § 1983 claims as a matter of law pursuant to Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) because they are private actors even though they were acting under color of state law; CSXT is liable for the actions of its employees, Dugger and Minges, under the doctrine of respondeat superior because CSXT breached its duty to train its employees in the areas of criminal investigation, search and seizures, arrest procedures, and obtaining a warrant; and defendants are liable for false arrest and imprisonment. Plaintiff makes no mention in his memoranda of his excessive force claim under the Fourth Amendment, his Eighth Amendment claim, his malicious prosecution claim, or his claim for intentional infliction of emotional distress. He presents arguments only in support of his claims for wrongful arrest without probable cause in violation of the Fourth Amendment and his claims for false arrest and false imprisonment under Ohio law....