F Dyann Mcdowell Et Al V The Board Of Trustees For Perry Township

Key Facts

Transaction Type

Issues

• The court determined whether to exercise supplemental jurisdiction over state law claims after dismissing all federal claims. Considering judicial economy, convenience, fairness, and comity, and noting that discovery had closed and multiple rounds of summary judgment briefing had occurred, the court retained jurisdiction over the state law claims rather than remanding them to state court.
• The court analyzed Pomesky's immunity claim under Ohio Revised Code Section 2744. While Pomesky's actions were within the scope of his employment as a police officer, the court found evidence suggesting he may have acted with dishonest purpose or bad faith. Consequently, the court determined there was a factual question as to whether Pomesky acted with malice or in bad faith, meaning he is not entitled to immunity from state law claims in his personal capacity.
• The court examined whether Pomesky's actions in seeking an arrest warrant for McDowell constituted abuse of process. Analyzing whether Pomesky had an ulterior motive beyond holding McDowell accountable for alleged falsification, the court found a genuine issue of material fact as to whether the arrest was used to undermine and silence McDowell's separate investigation, denying summary judgment on this claim.
• The court analyzed two breach of contract claims. For the HR assessment, finding a genuine issue of material fact regarding whether plaintiffs fully performed their contractual obligations, the court denied summary judgment for Perry Township. For the Pomesky investigation, finding no evidence of a separate contract or new consideration beyond the initial HR assessment contract, the court granted summary judgment for Perry Township.
• The court analyzed the false arrest claim against Perry Township and Pomesky. Finding that plaintiffs failed to respond to defendants' arguments regarding probable cause to arrest McDowell, the court determined this amounted to abandonment of the claim. With no genuine dispute of material fact remaining, the court granted summary judgment in favor of defendants on this claim.
• The court examined whether Perry Township's retention and supervision of Pomesky constituted a governmental or proprietary function under O.R.C. § 2744. Finding that police services and criminal investigations are governmental functions, and that the hiring, training, and supervision of employees do not constitute a proprietary function exception, the court granted summary judgment for Perry Township on the negligent retention claim.

Holdings

• The Court determines that Pomesky is not entitled to immunity under Ohio Revised Code Section 2744 in his personal capacity as there is a factual question regarding whether he acted with malice or in bad faith. The Court denies summary judgment on the abuse of process claim against Pomesky as there is a genuine issue of material fact regarding whether he sought an ulterior purpose. The Court grants summary judgment on intimidation and intentional infliction of emotional distress claims against Pomesky.
• The Court finds that Plaintiffs' failure to respond to Defendants' Motions for Summary Judgment amounts to abandonment of the false arrest claim. The Court grants summary judgment as to the false arrest claim against both Perry Township and Pomesky. The Court also grants summary judgment on negligent retention/supervision against Perry Township as it was a governmental function. The Court grants summary judgment on breach of contract for the Pomesky investigation due to lack of consideration.
• The Court denies Defendants' Motions for Summary Judgment as to the breach of contract claim for the HR assessment against Perry Township and the abuse of process claim against Michael Pomesky. The Court grants the Defendants' Motions for Summary Judgment as to all other claims including false arrest, negligent retention/supervision, breach of contract for investigation, intimidation, and intentional infliction of emotional distress.

Remedies

• The Court granted Defendants' Motions for Summary Judgment on multiple claims including false arrest (both federal and state law), malicious prosecution, Monell liability, negligent retention/supervision against Perry Township, breach of contract for the Pomesky investigation, intimidation against Pomesky, and intentional infliction of emotional distress against Pomesky. The Court also dismissed the federal claims for false arrest, malicious prosecution, and Monell liability, and retained jurisdiction over remaining state law claims pending trial.
• The Court DENIED Defendants' Motions for Summary Judgment on the breach of contract claim for the HR assessment against Perry Township and the abuse of process claim against Michael Pomesky. These claims will proceed to trial as there are genuine issues of material fact regarding whether Plaintiffs performed under the contract and whether Pomesky perverted the process for an ulterior purpose.

Legal Principles

• Under Ohio Revised Code Section 2744, political subdivisions are generally not liable for torts in connection with governmental or proprietary functions. There are five circumstances where a municipality is not entitled to blanket immunity. If any exception applies, the burden shifts to the political subdivision to determine whether any defenses in O.R.C. 2744.03 apply. The burden only shifts to Perry Township to reinstate immunity if an exception to immunity under § 2744.02(B) applies.
• To establish a claim for abuse of process under Ohio law, a plaintiff must allege that a legal proceeding has been set in motion in proper form and with probable cause, that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed, and that direct damage has resulted from the wrongful use of process. The key factor is whether an improper purpose was sought to be achieved by the use of a lawfully brought previous action.
• Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate if the movant shows there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. A fact is deemed material only if it might affect the outcome of the lawsuit under the governing substantive law. The nonmoving party must present significant probative evidence to show there is more than some metaphysical doubt as to the material facts. The evidence must be viewed in the light most favorable to the nonmoving party.
• Under Ohio law, a contract must include an offer, acceptance, consideration, a manifestation of mutual assent, and a meeting of the minds as to the essential terms of the contract. Where a written contract is altered or modified by oral agreement, new and distinct consideration is required, or it must be a valid and binding contract itself, resting upon some new and distinct consideration. Plaintiffs fail to present evidence supporting there was a bargained for benefit between the parties for the separate investigation of Pomesky.

Precedent Name

• O.R.C. § 2744
• Miller v. Currie
• Anderson v. Liberty Lobby
• Yaklevich v. Kemp
• Wiley v. United States
• Musson Theatrical v. Fed. Exp. Corp.

Cited Statute

• Ohio Revised Code Section 2307.60
• Ohio Revised Code Section 2744 immunity
• Ohio Revised Code Section 2744.03 immunity exceptions
• Ohio Revised Code Section 2744.01 definitions
• Civil Rights Act
• Ohio Revised Code Section 2744.02 exceptions

Judge Name

• Algenon L. Marbley
• Kimberly A. Jolson

Passage Text

• Thus, this Court does not find it dispositive that Pomesky had probable cause, nor does it find that Pomesky's alleged conduct can be cleansed by the Yaklevcich footnote, as his alleged actions cannot merely be classified as bad intentions. Plaintiffs do not merely allege that after initiating the investigation properly, Pomesky pursued the investigation aggressively and with a warrant because he did not like McDowell. If that were the case, there would be no valid abuse of process claim. Rather, there is a genuine dispute as to whether Pomesky sought to use the arrest warrant for McDowell's LEADS falsification to undermine and effectively terminate McDowell's investigation into him, which the courts are powerless to do. While seeking the arrest was not illegal, Pomesky's break from the standard course creates a genuine issue of material fact as to an ulterior purpose to thwart McDowell's investigation that was entirely separate from McDowell's false statements regarding LEADS. Unlike using tools within the court's power solely to investigate and punish substantiated allegations of misconduct, Pomesky allegedly sought to use the process for an entirely different goal: to intimidate and discredit McDowell's separate investigation into him. Accordingly, there is a genuine issue of material fact regarding whether Pomesky perverted the process for an ulterior purpose. As such, Pomesky's Motion for Summary Judgment as to the abuse of process claim is DENIED.
• Upon review of the submitted assessment, this Court finds that a reasonable jury could determine that the assessment complied with the requirements listed in the contract. (Id.). Thus, there exists a genuine issue of material fact as to whether Plaintiffs performed under the contract. Accordingly, Perry Township's Motion for Summary Judgment as to the HR assessment breach of contract claim is DENIED.
• This Court DENIES Defendants' Motions for Summary Judgment as to the breach of contract claim for the HR assessment against Perry Township and the abuse of process claim against Michael Pomesky. This Court GRANTS the Defendants' Motions for Summary Judgment as to all other claims.