Salem v. City of Akron

448 F.Supp.3d 793

Joseph SALEM, et al., Plaintiffs,

v.CITY OF AKRON, et al., Defendants

Case No. 5:18cv1754

United States District Court, N.D. Ohio.

Signed March 24, 2020

Paul J. Cristallo, Law Office of Paul J. Cristallo, Cleveland, OH, for Plaintiffs.

Michael J. Defibaugh, John C. Reece, City of Akron, Akron, OH, for Defendants.

AMENDED MEMORANDUM OPINION AND ORDER

PAMELA A. BARKER, U.S. DISTRICT JUDGE

Currently pending is the Motion for Summary Judgment of Defendants City of Akron, Terry Pasko, Chris Brewer, Eric McDonald, Michael Pasternak, Adam Guilmette, Brett Talcott and Kevin Rybka. (Doc. No. 30.) Plaintiffs Joseph Salem and The Spot for Entertainment, LLC dba Hibachi Xpress Bar and Grille filed a Brief in Opposition, to which Defendants responded. (Doc. Nos. 36, 38.) For the following reasons, Defendants' Motion for Summary Judgment (Doc. No. 30) is GRANTED as to Plaintiffs' unlawful entry claim (Count III) brought under 42 U.S.C. § 1983. The Court declines to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims and remands those claims to the Summit County Court of Common Pleas.

I. Procedural History

On June 25, 2018, Plaintiffs Joseph Salem and The Spot for Entertainment, LLC dba Hibachi Xpress Bar and Grille (hereinafter referred to collectively as "Plaintiffs") filed a Complaint in the Summit County Court of Common Pleas against the following Defendants: (1) the City of Akron; (2) Akron Police Captain Terry Pasko;¹ (3) Major Paul Calvaruso; (4) Captain Christopher Brewer; (5) Officer Eric McDonald; (6) Officer Michael Pasternak; (7) Officer Adam Guilmette; (8) Officer Brett Talcott; (9) Officer Kevin Rybka; (10) Lieutenant Stephen Phillips; and (11) Akron Police Officers John Does 1-12.² (Doc. No. 1-1.) Plaintiffs assert claims for unlawful entry; assault and battery; false arrest; abuse of process; malicious prosecution; "malicious, willful, wanton, reckless conduct;" and "defamation/libel/slander/ and defamation per se." (Id. )

On July 30, 2018, Defendants City of Akron, Pasko, Brewer, McDonald, Pasternak, Guilmette, Talcott and Rybka (hereinafter referred to as "Defendants") removed the action to this Court on the basis of federal question jurisdiction. (Doc. No. 1.) Defendants thereafter filed an Answer on August 6, 2018. (Doc. No. 4.)

A Case Management Conference ("CMC") was conducted by then-assigned District Judge Sara Lioi on September 19, 2018, at which time various case management deadlines were set. (Doc. No. 9.) This matter was thereafter transferred to the undersigned on June 26, 2019 pursuant to General Order 2019-13. On July 11, 2019, the undersigned granted Defendants' Motion to extend the dispositive motion deadline until August 16, 2019. The dispositive motion deadline was later extended again to August 26, 2019.

On August 26, 2019, Defendants filed a Motion for Summary Judgment. (Doc. No. 30.) Plaintiffs filed a Brief in Opposition, to which Defendants responded.³ (Doc. Nos. 36, 38.)

II. Facts

In April 2016, Plaintiff sold a bar located at 627 Arlington Avenue in Akron, Ohio. (Affidavit of Joseph Salem (Doc. No. 36-2) at ¶ 1.) Under the terms of the purchase agreement, Plaintiff maintained the liquor permit for this bar until certain conditions of the contract were met. (Id. ) Plaintiff states that he did not, however, maintain any control over the bar's daily operations. (Id. at ¶ 2.) The new owners of the bar renamed it "Mango's Nightclub" (hereinafter "Mango's"). (Id. )

In the early morning hours of Saturday, June 25, 2016, Akron police officers reported to a call of an active fight at Mango's.⁴ (Affidavit of Terry Pasko (Doc. No. 30-1) at ¶ 9.) When police arrived, patrons interfered with the arrest of a suspect and threw drinks at officers. (Id. ) One suspect expelled an officer's OC (or pepper) spray on two officers, while another officer was struck in the head. (Id. ) Numerous criminal charges resulted from the incident. (Id. ) See also Doc. No. 41-1. Plaintiff was not at Mango's on June 25, 2016 and avers that he "had no role or participation in the unfortunate melee that took place that evening." (Salem Aff. at ¶ 4.)

Later that same day, in the early evening hours, Defendant Pasko received a telephone call from Akron Police Major Paul Calvaruso. (Pasko Aff. at ¶ 9.) According to Defendant Pasko, Calvaruso informed him that he had secured patrol officers for the night shift and asked if Pasko was available to come in and conduct bar administrative inspections.⁵ (Id. ) During this call, Defendant Pasko and Calvaruso discussed the events earlier that morning at Mango's. (Id. ) Pasko states that "Calvaruso wanted to conduct an inspection of Mango's and other select bars, and asked my opinion for other locations with a history of similar complaints or police activity." (Id. at ¶ 10.) Pasko discussed with Calvaruso "concerns raised by City councilpersons about growing problems at several bars." (Id. ) Calvaruso selected the following four bars for inspections: (1) Mango's; (2) El Camaleon, located at 1079 South Arlington Street; (3) Hibachi Xpress Bar and Grille, located at 935 Brown Street; and (4) Club 631, located at 627 North Howard Street. (Id. ) Plaintiff is the owner of one of these bars, i.e. the Hibachi Xpress Bar and Grille. (Salem Aff. at ¶ 5.)

That evening, during roll call, Defendant Pasko met with Calvaruso, Defendant Brewer, and a group of patrol officers assigned to assist in the bar inspections (hereinafter referred to collectively as "the police unit"). (Pasko Aff. at ¶ 11.) Among others, this group of patrol officers included Defendants McDonald, Pasternak, Guilmette, Rybka and Talcott. See McDonald Depo. (Doc. No. 25) at pp. 12-14; Pasternak Depo. (Doc. No. 29) at pp. 13-16; Guilmette Depo. (Doc. No. 26) at pp. 7-8; Rybka Depo. (Doc. No. 27) at pp. 5-6; Talcott Depo. (Doc. No. 28) at pp. 11. During this roll call meeting, Pasko discussed the locations of the bars to be inspected and briefed the officers on "what to look for." See Pasko Aff. at ¶ 11; McDonald Depo. at pp. 24-25; Pasternak Depo. at p. 16; Talcott Depo. at p. 11.

The police unit first went to Mango's; however, it was closed. (Pasko Aff. at ¶ 12.) The unit then proceeded to El Camaleon and conducted an inspection. (Id. at ¶ 13.) At that location, the bar manager was cited for failure to display a liquor permit and not displaying a liquor age warning sign. (Id. ) In addition, an underage customer was charged. (Id. )

The police unit then proceeded to Plaintiff's bar, the Hibachi Xpress. (Pasko Aff. at ¶ 14.) It is undisputed that Defendants did not have a warrant to enter and/or search the premises. According to Plaintiff, police officers "barged in all at once and began yelling at me, employees, and patrons." (Salem Aff. at ¶ 7.) He avers that "it was a complete shock and disruption to what was otherwise an uneventful night." (Id. )

The parties agree that Defendant Pasko proceeded to the bar office located at the rear of the premises. (Pasko Aff. at ¶ 14; Salem Aff. at ¶ 8.) In his affidavit, Plaintiff avers that Pasko "began opening drawers and rummaging through my desk, file cabinets, personal effects, papers on and in my desk, and a Huntington Bank bag containing my personal information." (Salem Aff. at ¶ 10.) Defendant Pasko states that he was permitted to search this area of the bar in order to locate and examine operational records of the business, including documented keg taps, hose cleanings, and purchase orders. (Pasko Aff. at ¶ 14.) He alleges that, during the course of his inspection, he did not see a liquor age warning sign displayed prominently as required by City ordinance. (Id. ) Plaintiff flatly denies this, alleging that "all required permits were properly displayed at Hibachi Xpress." (Salem Aff. at ¶ 18.)

Pasko avers that Plaintiff "was present in and around the bar office" during the inspection. (Pasko Aff. at ¶ 15.) Both parties agree that Plaintiff objected to the police unit's entry into the Hibachi Xpress and to Pasko's search of the bar office. (Salem Aff. at ¶¶ 11, 12; Pasko Aff. at ¶ 15.) According to Plaintiff, Pasko told him that the Akron Police were conducting a raid of Hibachi Xpress "based on what occurred the night before at Mango's Nightclub." (Salem Aff. at ¶ 13.) Specifically, Plaintiff alleges that Pasko "made reference to the fact that he wasn't going to put up with my customers who were ‘like a bunch of animals,’ or words to that effect, and that this raid was the City of Akron Police's direct response to the incident at Mango's just the night before." (Id. at ¶ 14.) Plaintiff states that he told Pasko that he did not own Mango's; had no control over Mango's; was not present at Mango's the previous evening; and had no involvement of any kind with the incident at Mango's. (Id. at ¶ 15.)

The parties disagree about what happened next. Defendant Pasko avers that Plaintiff interrupted his inspection of the bar office "several times," and "drew his attention away from the inspection." (Pasko Aff. at ¶ 15.) Specifically, Pasko states that he "felt that Salem's verbal objections and physical presence was interfering with my ability to perform the inspection." (Id. ) Plaintiff avers that he was not doing anything illegal and, further, that "at no time did my questions or objections prevent, delay, or impede Capt. Pasco [sic] from his activities." (Salem Aff. at ¶¶ 21, 22.)

Defendant Pasko ordered Defendant McDonald "to keep Mr. Salem from entering the office area and interrupting me." (Pasko Aff. at ¶ 15.) He further instructed McDonald that Plaintiff could be arrested "if his actions continued." (Id. ) Pasko alleges that "when Mr. Salem persisted with his interference, I instructed Officer McDonald to arrest him." (Id. ) He states that he "believed that Mr. Salem's [sic] displayed uncooperative behavior and purposely interrupted, hampered, obstructed, and delayed my performance of a lawful inspection." (Id. )

Defendant McDonld proceeded to arrest Plai...