Sheets v. Mullins

109 F.Supp.2d 879

Theresa SHEETS, Plaintiff, v. Sgt. Howard MULLINS, et al., Defendants.

No. C2-98-170.

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

August 15, 2000.

COPYRIGHT MATERIAL OMITTED

James McNamara, Columbus, OH, for plaintiff.

Mark O. Landes, Isaac, Brant, Ledman & Teetor, Columbus, OH, for defendant.

OPINION AND ORDER

SARGUS, District Judge.

This matter is before the Court for consideration of the Defendants' Motion for Summary Judgment. (Doc. # 29) For the reasons that follow, the motion is granted in part and denied in part.

I.

Plaintiff in the case at bar is the mother of a deceased child, Tiffany Jean Montgomery. The Plaintiff and one Roger Montgomery lived together in Gallia County, Ohio. Following an episode of domestic violence, Roger Montgomery shot and killed Tiffany Jean Montgomery and thereafter killed himself.

Plaintiff asserts three separate claims under 42 U.S.C. § 1983¹ against the Gallia County Sheriff's Department, the Sheriff of Gallia County, together with three individual deputies employed by the Sheriff's Department. The Plaintiff contends that the Defendants violated her rights to substantive due process, procedural due process, and equal protection under the United States Constitution, as more fully explored below. The following factual scenario is gleaned in large part from the deposition transcripts submitted to the Court.

The facts surrounding this unmitigated tragedy began on Sunday morning, February 16, 1997. According to Ms. Sheets, Montgomery put a knife to her stomach and held her at gunpoint. (Deposition of Theresa Sheets, hereinafter referred to as "Sheets Deposition," at 31). Montgomery threatened to kill her and her children, smashed up their home, and knocked over the refrigerator. Roger Montgomery thereafter called the sister of the Plaintiff and asked her to come and pick up Theresa Sheets. The Plaintiff's sister transported Ms. Sheets to the home of Jerry Roach, her nephew. (Id. at 27-28). Roach then called the Sheriff's Department and made a report of domestic violence. (Id.). Sergeant Howard Mullins came to Roach's residence and interviewed the Plaintiff. (Id. at 31).

According to Sheets, she told Defendant Mullins that her child, Tiffany Montgomery, was in danger. She described to him the threats Montgomery had made to hurt the child and the fact that he had held her at gunpoint, placed a knife in her stomach and destroyed various household items during his rage. (Id. at 31-32).

According to the Plaintiff, she advised Mullins that her daughter was at the home of one Shirley Lilly, the sister of Roger Montgomery. On deposition, the Plaintiff testified as follows:

Q: Did he ask you about where Tiffany was?

A: Yes.

Q. What did he ask you?

A: He asked me where was Tiffany and I told him that Tiffany was at Shirley Lilly's —

Q: And what did he say?

A: — and that I wanted to go get her. He said to just wait.

Q. Did he call the Lilly's house?

A: No.

Q: What did he say to wait until?

A: To wait until I go to court.

(Sheets Deposition at 33)

In contrast, Sgt. Mullins testified that the Plaintiff told him that Roger Montgomery had taken the baby to Columbus. (Deposition of Sgt. Howard Mullins, hereinafter referred to as "Mullins Deposition," at 57-59). Mullins also testified that after being so advised by Sheets, he traveled to Montgomery's residence and noted that Montgomery's vehicle was gone. (Id. at 60). After failing to locate Montgomery at his residence, Mullins made no further effort to seek out or arrest him. (Id. at 61). According to Mullins, he concluded that Montgomery was in Columbus. Mullins made no effort to physically reunite Tiffany with her mother. (Id.).

Further, Mullins failed to comply with a host of requirements imposed upon police officers by the Ohio legislature. Ohio law provides for what is termed a "preferred arrest" policy, as set forth in O.R.C. § 2935.03(B)(3)(b). Further, if a peace officer does not arrest and detain a person whom the officer has reasonable cause to believe committed domestic violence, the officer is required to articulate, in a written report, the reasons for not arresting and detaining such person until a warrant can be obtained. O.R.C. § 2935.03(B)(3)(c). Finally, if the officer responds to a report of alleged domestic violence involving the use or threatened use of a deadly weapon, the officer is required under Ohio law to seize the deadly weapon as contraband. From the record presented, Sgt. Mullins failed to comply with any of these provisions of the Ohio domestic violence law.

In his initial meeting with the Plaintiff, Sgt. Mullins instructed Ms. Sheets that she could, if she wished, file criminal charges against Mr. Montgomery on the following Tuesday, since Monday was a holiday. (Mullins Deposition at 62). Other than a one time attempt to locate Montgomery at his residence, Mullins made no other attempt to find the child or Montgomery. (Id. at 63). Further, Mullins admits that he did not, at the end of his shift, indicate to oncoming deputies or their Sergeant that Montgomery had threatened to kill the child over whom he had physical custody. (Id. at 78-79).

Plaintiff asserts that Mullins directed her not to use self-help to obtain physical custody of her daughter, notwithstanding the fact that as a parent of the child, she had the right to immediate custody. (Sheets Deposition at 33; 37). Plaintiff remained with her nephew over the next several days and did attempt, through legal process only, to obtain legal custody of her daughter. (Id. at 33). The next day, Monday, February 17, 1997 was a legal holiday. On Tuesday, February 18, 1997, Sheets filed charges against Montgomery with the City Solicitor and also sought temporary custody of her daughter. (Id. at 38-39). Attorney Phyllis Rowan was assigned as Plaintiff's counsel. (Id. at 42).

On the same day, February 18, 1997, Theresa Sheets was designated as the legal custodian of the minor child and temporary custody was awarded to her by the Gallia County Juvenile Court. Rowan and Sheets took the temporary custody order to the Gallia County Sheriff's Department. (Deposition of Phyllis Rowan, hereinafter referred to as "Rowan Deposition," at 13-14). Ms. Rowan requested that the Sheriff's Department take physical custody away from Montgomery and place the minor child with her mother. (Id. at 14-15). Sergeant Martin of the Gallia County Sheriff's Department indicated that, in his view, the custody order did not give the Department legal authority to take physical control of the child as the order lacked the requisite specificity for a forceful taking of an infant. (Deposition of David Martin, hereinafter referred to as "Martin Deposition," at 41-42). The Sergeant also advised that the proper paperwork had not been received from the City Solicitor's Office and that no warrant had been submitted to the Sheriff's Department pursuant to which the Department could arrest Roger Montgomery. (Id. at 50-51). At the close of business hours on February 19, 1997, Ms. Sheets had been advised by the Sheriff's Office that the paperwork authorizing the arrest of Montgomery had not been received and that the order she obtained from the Juvenile Court could not be enforced by a deputy sheriff. (Id. at 52).

The next day, Roger Montgomery telephoned the residence of Sgt. Mullins. (Mullins Deposition at 65). Mullins and Montgomery were long-time personal friends who had grown up together and saw each other on a regular basis. (Id. at 24-26). Montgomery called Mullins at approximately 7:30 p.m. on February 19 and asked Mullins if a warrant had been issued for his arrest. (Id. at 65). According to Mullins' own testimony, Mullins advised Montgomery to simply check with the Municipal Court in the morning. (Id.). Montgomery also asked Mullins about the steps he should take to obtain custody of the child. Although Mullins testified that if he had found Montgomery on the preceding Sunday he would have arrested him, Mullins made no effort to determine Montgomery's location in order to arrest him or to seek physical custody of the child that Wednesday evening. (Id. at 62; 65).

Mullins also testified that he did not believe from his one time meeting with Theresa Sheets that the baby was in any imminent danger. (Id.). Because he had a long-time relationship with Montgomery and because he was not aware of any prior violence or criminal activity on Montgomery's part, Mullins did not believe the claims made by the Plaintiff that Montgomery had pulled a gun on her or threatened her with a knife. (Mullins Deposition at 56-57). Mullins also admitted that, in 1991, he had himself been convicted of domestic violence. (Mullins Deposition at 9). He specifically testified that he did not believe that Sheets was truthful in her claims against Montgomery. (Id. at 63).

On the following morning, Thursday, February 20, 1997, Attorney Rowan obtained from the Gallia County Juvenile Court a custody order which included the language the Sheriff's Department required before it would enforce a physical taking of the child. (Rowan Deposition at 23-25). Before that order could be enforced, Montgomery voluntarily appeared in the Gallipolis Municipal Court on an initial appearance with regard to charges filed against him by Theresa Sheets alleging that he committed domestic violence against her. He was released on his own recognizance, subject to the provisions of a temporary protective order in favor of Ms. Sheets, pursuant to O.R.C. § 3113.31. The Municipal Court refused to order Montgomery to give up physical custody of the child, finding the issue as being within the exclusive jurisdiction of the Gallia County Juvenile Court.

On that same afternoon, four days after the Plaintiff made her initial complaints to Sergeant Mullins, Montgomery shot Tiffany Jean Montgomery in the head, set fire to his residence, and then turned the gun upon himself. (Sheets Deposition at...