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stating that "a search or seizure must be supported by individualized probable cause which cannot be established by the fact that there coincidentally exists probable cause to arrest another or to search or seize the premises"
Summary of this case from State v. HardingOpinion
Case No. 1:07-CV-00367.
August 27, 2008
ORDER
This matter is before the Court upon a motion for summary judgment filed by Defendants, City of North College Hill and Patrolman Scott Kelly (doc. no. 12), Plaintiff's Memorandum in opposition (doc. no. 17), Defendants' Reply Memorandum (doc. no. 20) and the Plaintiff's highlighted version of Defendants' findings of fact and conclusions of law (doc. no. 24).
Plaintiff, Ronald P. Martin, seeks damages from the Defendants, for his alleged wrongful arrest, detention, and malicious prosecution for Complicity to Kidnapping. He claims defendants' actions violated rights guaranteed to him under the Fourth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. Plaintiff claims Defendant, Scott Kelly, was a police officer employed by the City of North College Hill, and acting within the scope of that employment. Ptl. Kelly is sued individually, and in his capacity as a police officer for the City of North College Hill. In the Complaint, Plaintiff states Defendant, City of North College Hill, is a municipality recognized and existing under the laws of the State of Ohio.
In the Complaint, Plaintiff claims he was not committing any offense and Defendant Kelly did not have any reasonable ground for believing that Plaintiff was committing or had committed any offense. Plaintiff claims Defendant Kelly acted willfully, maliciously, and without any excuse or justification.
I. Factual Background
On the morning of July 3, 2006, the North College Hill Police Department received a phone call from the mother of seventeen year old Torien Rowe stating that Torien had been abducted from her home earlier that morning (doc. 24 ¶ 8). After reporting, as instructed, to the Cincinnati District 4 police station, Sergeant Ferguson and Ptl. Kelly found that the Cincinnati Police and the F.B.I. already had seven people in custody.
They were told that the kidnappers had earlier made a ransom demand of one hundred fifty thousand dollars ($150,000). Id. at ¶ 12. The police had then made the decision to set up a fake ransom drop in order to draw out the kidnappers. Id. at ¶ 13. While surveilling the location of the fake drop, the Cincinnati and Springfield police observed an unidentified individual who arrived at the location by car and attempted to pick up the money. Id. at ¶¶ 14 and 15.
The police followed the car to a house on 5120 Lillian Drive which was a known center of illegal drug activity, where they watched as the driver of the car, later determined to be David Johnson, entered the house. Id. at ¶¶ 15-17. The police decided to pursue Mr. Johnson into the house and proceeded to knock on the front door which was then opened by Plaintiff who voluntarily consented to their request for permission to enter and search the premises. Id. at ¶¶ 16 and 17. Upon searching the house, the police discovered the victim, Torien Rowe, in the basement, bound with duct-tape. Id. at ¶¶ 18 and 33. The police then took all seven of the occupants of the house, including Plaintiff, and placed them in custody. Id. at ¶ 24. They were then interrogated by the Cincinnati Police and the F.B.I.
All seven individuals gave the police the same story; they all claimed to know nothing about the kidnapping or how the victim came to be bound and tied in the basement. Id. at ¶ 33. It was at this point Defendants were called in to assist. Ptl. Kelly was instructed by his supervisor to file criminal charges of Complicity to Kidnapping against all of the individuals found in the house except for the two who were actually found in the same room as the victim and who were to be charged with Kidnapping.Id. at ¶ 31.
At the time the charges were filed, Ptl. Kelly had knowledge that Plaintiff was found inside the house where the victim of the kidnapping was found bound and gagged in the basement and into which David Johnson, who had earlier attempted to collect the ransom money, had fled. He also knew that Plaintiff, by his own admission, had been inside the house on and off throughout the previous day and since 5:30 in the morning on the day the police arrived. Finally, he knew that all the occupants of the house claimed that they did not know anything about the kidnapping. Based on this knowledge, Ptl. Kelly determined that there was sufficient probable cause to place Plaintiff under arrest.
After the arrest, however, Ptl. Kelly uncovered certain information during an interview with one of the other occupants of the house which led him to believe that Plaintiff was not involved in the kidnapping. Id. at ¶ 36. After verifying the new information, the charges were dropped and Plaintiff was released. Id. at ¶¶ 36 — 38. The parties to this case appear to dispute exactly when this interview took place, id. at ¶ 35, however, both parties admit that the interview took place and that the information gained therein prompted Defendants to initiate further investigation which led to Plaintiff's release. The parties are in agreement as to all other relevant facts.
II.Procedural Background
Plaintiff now brings the current action in which he makes two claims. First, Plaintiff brings suit under 42 U.S.C. § 1983 claiming violations of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. Specifically, Plaintiff claims that Defendants arrested him without probable cause in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. Pl.'s Compl. ¶¶ 1 and 6. Secondly, Plaintiff claims that Defendants maliciously prosecuted him when they charged him with Complicity to Kidnapping. Pl.'s Compl. ¶ 1.
Defendants have responded by filing a motion for summary judgment in which they argue that they are entitled to summary judgment because Ptl. Kelly had sufficient probable cause to arrest Plaintiff. Def.'s Mot. for Summ. J. at 7. Defendants also argue that Ptl. Kelly is entitled to qualified immunity because he was acting in his official capacity as a police officer, and because his conduct did not violate clearly established law. Id. at 11. Defendant City of North College Hill seeks summary judgment on its behalf arguing that Plaintiff has produced no evidence of any policy or practice on the part of the City which would have anything to do with the charges Plaintiff has brought in this case. Id. at 12.On the malicious prosecution claim, Defendants argue that summary judgment should be granted in their favor because, in order to succeed on such a claim, Plaintiff must first prove that there was no probable cause to justify his arrest. Id. at 18. Finally, Defendants argue that a malicious prosecution claim may only be brought against the individual who made the decision to prosecute.
In response to Defendants' motion for summary judgment Plaintiff has filed a Memorandum in Opposition (doc. no. 17). Plaintiff argues that Defendant Ptl. Kelly did not have probable cause because the totality of the circumstances fell short of the level of suspicion necessary. Pl.'s Memo. at 8. Plaintiff claims that because he acted as an innocent person would have been expected to act in that situation, Defendants did not have probable cause to arrest him. Specifically, Plaintiff points to the fact that he voluntarily allowed the police to enter the house instead of running, and that he continually asserted his own innocence. Id. Plaintiff also argues that Defendant Ptl. Kelly did not have probable cause because he did not conduct the investigation personally. Id. at 6. With regard to Defendants' assertion of qualified immunity, Plaintiff reiterates his argument that there was no probable cause to arrest him and Ptl. Kelly should have understood that his actions violated Plaintiff's Fourth Amendment rights. Id. at 9.
In Defendants' memorandum in support of their motion for summary judgment (doc. no. 20), they argue that Plaintiff's malicious prosecution claim, official capacity claim, and any state law claims have all been abandoned because Plaintiff has neither made any arguments nor submitted any evidence in support of any of those claims. They contend those claims should, therefore, be dismissed with prejudice. Def.'s Memo. at 2. As to the issue of probable cause, Defendants rebut Plaintiff's position by asserting that a probable cause determination can be made based on an investigation conducted by others. Id. Defendants argue that, based on the totality of the circumstances, Ptl. Kelly had sufficient evidence to form probable cause. Id.
III. Summary Judgment Analysis
In order to succeed on their motion for summary judgment, Defendants must show that Plaintiff's "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The materiality of a fact is determined by reference to substantive law. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted. Anderson v. Liberty Lobby , 477 U.S 242, 248 (1986). A dispute is considered genuine if there is any evidence upon which a reasonable jury could properly proceed to find a verdict for the nonmoving party. Id. Therefore, the proper inquiry under this standard is whether "there are any genuine factual issues that can be resolved only by a finder of fact because they may be reasonably resolved in favor of either party." Id , at 250. The party seeking summary judgment always bears the initial burden of explaining the basis for its motion. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). However, the moving party does not have to put forth affidavits or other similar material of its own negating the non-movant's claims, instead, the moving party is entitled to rely on the material already put forth by the non-movant. Id. at 324. The moving party satisfies its initial burden when it establishes that there is no genuine issue of material fact, which may be accomplished by "pointing out to the court that there is an absence of any evidence to support the nonmoving party's case." Id, at 325. Once this is shown, the burden shifts to the non-movant who must then set forth specific facts showing that there is a genuine issue for trial. Anderson , at 248 (quoting First Nat'l Bank of Arizona v. Cities Serv. Co. , 391 U.S. 253 (1968)). The evidence of the non-movant is to be believed and all reasonable inferences must be drawn in his favor. Id , at 255 (citing Adickes v. S.H. Kress and Co. , 398 U.S. 144, 158 (1970). However, the mere existence of some alleged factual dispute between the parties will not suffice. Id, at 247-248. "A mere scintilla of evidence is insufficient; there must be evidence on which the jury could reasonably find for the non-moving party." Kressler v. Visteon Corp. , 448 F.3d 326, 329 (6th Cir. 2006). Therefore, summary judgment must be entered "against a party that fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. , at 327.In the case at hand, Defendants, as the moving party, have satisfied their initial burden by establishing an absence of any genuine issue of material fact. In order to establish this, Defendants have identified three main undisputed facts as being material to this case: (1) that Plaintiff was found inside the same house in which the victim was found bound and gagged in the basement, and into which David Johnson had fled after attempting to collect the ransom, (2) that both the Cincinnati Police and the F.B.I. had interviewed Plaintiff concerning the kidnapping and had given the results of that interview to the Defendants; and (3) that every person found inside the house gave the police the same story. Def.'s Memo., at 9. These facts are the same as those included in the complaint (doc. no. 3), as well as the depositions of Plaintiff (doc. no. 13) and Defendant Ptl. Kelly (doc. no. 16). These same facts are also found in the Proposed Findings of Fact (doc. no. 24), to which Plaintiff has stipulated. Defendants argue that these facts are sufficient to show probable cause and that Plaintiff has, therefore, failed to prove an essential element of his case upon which he would bear the burden of proof at trial. The burden shifts to Plaintiff who must establish that there is a genuine issue of material fact. However, in his memorandum in response, Plaintiff sets forth the very same set of facts as those included in Defendants' motion for summary judgment. Plaintiff concedes that he was found by the police in the house where the victim was found. Pl.'s Memo, at 1. Plaintiff also concedes that he was interviewed by the police and the F.B.I. and that, during that interview, he claimed that he did not know anything about the kidnapping. Id. Finally, in the Proposed Findings of Fact (doc. no. 24), Plaintiff does not dispute any of these facts.
Plaintiff does, however, attempt to raise several other facts as legally significant. First, Plaintiff argues that because Ptl. Kelly did not personally conduct the interview, his determination of probable cause should be deemed invalid. Pl.'s Memo. at 8. Second, Plaintiff argues that he asserted his innocence during the investigation and otherwise behaved as an innocent man would by opening the door and allowing the police to enter the house instead of fleeing. Pl.'s Memo. at 8. Defendants do not dispute these facts, only their legal significance. Consequently, because Plaintiff has not disputed the material facts, summary judgment is proper in this case in that the only questions remaining to be resolved are questions of law.
IV. Probable Cause Analysis
In Plaintiff's first claim under 42 U.S.C.A. § 1983, in which he argues that Defendants violated his Fourth Amendment right to be free from unreasonable searches and seizures when they allegedly arrested him without probable cause, he argues that, under Terry v. Ohio , 392 U.S. 1 (1969), Defendants only had enough suspicion to conduct a " Terry Interrogation." Pl.'s Memo. at 7. This argument, however, misinterprets the holding of Terry , which allows police to conduct a Terry Search, which involves stopping and frisking a suspect for weapons, based only upon a reasonable suspicion. Id. Reasonable suspicion is defined as less certainty than probable cause, but more than an "ill-defined hunch." United States v. Arvizu , 534 U.S. 226, 273 (2002). Therefore, it appears that Plaintiff is arguing that Defendants only had enough evidence to establish a reasonable suspicion and that they therefore exceeded their authority when they arrested him. However, Plaintiff does not cite to any authority to support this argument. Plaintiff only claims that the company and environment in which he was found are not a sufficient basis upon which to form probable cause.
In response, Defendants argue that the Court must consider whether the facts leading up to the arrest, viewed from the standpoint of an objectively reasonable police officer, were sufficient to form probable cause. Maryland v. Pringle , 540 U.S. 366, 371 (2003). Defendants reason that "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Illinois v. Gates , 462 U.S. 213, 235 (1983) (citing Spinelli v. United States , 393 U.S. 410, 419 (1969)). Defendants are also careful to point out that an arrest based upon then-existing probable cause is not invalidated if the suspect is later found to be innocent. United States v. Covelli , 738 F.2d 847, 854 (7th Cir.), cert. denied , 469 U.S. 867 (1984).
Essentially the dispute on this point hinges on whether Plaintiff's arrest can be considered as one of "guilty-by-association" as Plaintiff claims, or whether Defendants had probable cause which was not based solely upon the company in which Plaintiff was found. "A person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause." Ybarra v. Illinois , 444 U.S. 85, 91 (1979) (quoting, Sibron v. New York , 392 U.S. 40, 62-63 (1968). Furthermore, a search or seizure must be supported by individualized probable cause which cannot be established by the fact that there coincidentally exists probable cause to arrest another or to search or seize the premises. Id. This is not to say that the company or environment in which a person is found can have no bearing on probable cause. Rather, the holding in Ybarra establishes that there must be other factors in addition to a person's company or environment which aid in formulating probable cause. Those other factors are collected from the totality of the circumstances and are viewed from the standpoint of reasonable, prudent men, taking into consideration the practical considerations of everyday life, and allowing for the fact that police officers are not "legal technicians." Pringle , at 370 (quoting, Gates , at 231). For instance, in Ybarra the Court held that a warrant to search a tavern and bartender for drugs did not extend to one of the patrons of the tavern who had done nothing other than to be found sitting at the bar when the police arrived to execute the search warrant. Ybarra , at 91. Conversely, the Court has found that the police had probable cause to search a car passenger because "a car passenger, unlike the unwitting tavern patron . . . will often be engaged in common enterprise with the driver." Wyoming v. Houghton , 526 U.S. 295, 304-05 (1999); but cf , United States v. Collins , 427 F.3d 688, 692 (9th Cir. 2005) (holding that the police did not have probable cause to arrest an unknown suspect whom they observed having a brief conversation with a suspected drug dealer because a public parking lot is distinguishable from the interior of a car).
More pertinent to the case at hand is United States v. Romero , 452 F.3d 610, (6th Cir. 2005) in which the Sixth Circuit held that the relatively small and confined space of a hotel room supported the police officer's conclusion that the men found therein were engaged in a common enterprise. Id. at 618. In Romero , the court was careful to mention that their analysis might have changed had the area the suspect was found in a different size or nature, such as a house. Id. In United States v. Patrick , 899 F.2d 169, (2d Cir. 1990), the court held that there was probable cause to arrest a man who entered an immigration office at an unusual hour at the same time as a woman who was discovered to be carrying drugs and who gave the same suspicious story that he did. Id. at 170; see also , United States v. Barlin , 738 F.Supp. 800, 802 (S.D.N.Y. 1990) (holding that there was probable cause to arrest an individual who was a passenger in a car with suspected kidnappers). Finally, if association is found to be the main factor in the arresting officer's formulation of probable cause, then there must be something more than a momentary, random, or apparently innocent association between the suspect and the criminal activity. United States v. Martinez — Molina , 64 F.3d 719, 727 (1st Cir. 1995).
Certainly, the longer the association between the actual perpetrator of the crime and the other person alleged to have been involved, the more suspicious the circumstances of that association, or the common-sense likelihood that the association would not have occurred unless the other person were involved in some way in the criminal activity, all can be used to support a reasonable inference of criminal activity and therefore a reasonable belief that the person may have committed the crime [which is] all that is needed in order to satisfy the probable cause standardUnited States v. Myers , 2006 WL 3007445 (S.D.OH 2006)
Turning to the case at hand, Plaintiff's present circumstances are distinguishable from those of the unfortunate tavern patron in Ybarra. In that case, the Supreme Court found it unreasonable to assume that a person was involved in a crime based solely on the fact that the suspect was found inside a public tavern when the police arrived. Ybarra, at 341. In this case, on the other hand, Plaintiff was found inside a private dwelling place which he admitted he had been staying in on and off throughout the previous day and since 5:30 in the morning on the day the police arrived (doc. 24 ¶ 26). Furthermore, Plaintiff admitted to the police that he had known the owner of the house for approximately two years prior to the incident. Id. at ¶ 30. Both of these facts show that it was reasonable for the police to assume that, unlike the tavern patron in Ybarra, Plaintiff's association with the criminal activity taking place was something more than a random, momentary, or innocent one. Martinez-Molina, at 727. Furthermore, given the private and more intimate environment Plaintiff was found in, the police reasonably concluded that Plaintiff was engaged in a common enterprise with the other occupants of the house. Houghton , 526 U.S. 295. Also, the fact that all of the occupants of the house gave the police the same suspicious story is directly analogous to United States v. Patrick , in which a suspicious story was one of the main factors supporting probable cause. Patrick , 899 F.2d 169. Although the Romero court mentioned in dicta that they might not have found probable cause had the defendant been found in a house as opposed to a hotel room, that case is also distinguishable from the present one given the differences in the nature of the offenses involved. Romero involved the sale of narcotics, which may be easily hidden in a pocket or a suitcase if need be. The present case, on the other hand, involves the kidnapping of a seventeen year old girl who could not be easily hidden and who was somehow transported to the basement of the house in which Plaintiff was found. As Plaintiff points out, these facts do not conclusively prove that he was involved in the kidnapping, however, such an argument misconstrues the probable cause analysis, which requires only the probability and not a prima facie showing of guilt. Gates , at 235. Thus, in order to have probable cause, Defendants only need to show that the circumstances warranted their suspicion. They are not required to show that they had enough evidence to convict Plaintiff at trial. Pringle , at 371 ( quoting , Locke v. United States , 7 Cranch. 339, 348, 3 L.Ed. 364 (1813).
Finally, the two sets of facts that Plaintiff raises as being legally significant are not sufficient to undermine a finding of probable cause in this case. First, the fact that Ptl. Kelly did not personally conduct the investigation is legally insignificant. The Sixth Circuit has held that "probable cause may be established from the collective knowledge of the police rather than solely from the officer who made the arrest." Collins v. Nagle , 892 F.2d 489, 495 (6th Cir. 1989). Furthermore, the Supreme Court has consistently held that "probable cause to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing . . . that the suspect has committed, is committing, or is going to commit an offense." Michigan v. DeFillipo , 443 U.S. 31, 37 (1979). Thus, the Supreme Court only requires that the arresting officer have knowledge of the information upon which probable cause is based. Nowhere does the Court require that the information must have been personally collected by the arresting officer.
Plaintiff attempts to support his argument by citing to Gardenhire v. Schubert , 205 F.3d 303 (6th Cir. 2000), which held that, although an officer does not have a duty to investigate every claim of innocence, "this does not suggest that an officer has no duty to investigate an alleged crime." Id. at 318. Gardenhire does not create the sort of duty to investigate for which Plaintiff argues, instead it merely states that an arrest may not be made where no investigation whatsoever has been conducted. Moreover, Gardenhire also held that an "officer has probable cause only when he discovers reasonably reliable information that the suspect has committed a crime." Id. The court's only requirement was that the information be reasonably reliable. Therefore, Plaintiff's argument on this point does not undermine a finding of probable cause, which makes the fact that Ptl. Kelly did not personally conduct the entire investigation immaterial.
Second, Plaintiff's assertions of innocence at the time of his arrest did not preclude Defendants for determining that there was probable cause to arrest him. The Sixth Circuit has expressly avoided creating a rule that would allow a claim of innocence to negate the formation of probable cause because "to hold otherwise would be to allow every suspect, guilty or innocent, to avoid arrest by simply claiming `it wasn't me.'" Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988). Thus Plaintiff's second argument is also rendered immaterial.
Taking the facts in a light most favorable to Plaintiff, Defendants had probable cause to place Plaintiff under arrest and they are consequently entitled to summary judgment on Plaintiff's 42 U.S.C.A. § 1983 claim.
V. Malicious Prosecution
Once summary judgment is granted to Defendants on the issue of probable cause, Plaintiff's malicious prosecution claim must also be dismissed on summary judgment because, if the police have probable cause to arrest a suspect, their personal motives for doing so become irrelevant. Scott v. United States , 436 U.S. 128, 138 (1978); see also , Swiecicki v. Delgado , 463 F.3d 489, 503 (6th Cir. 2006) (holding that the three necessary factors of a malicious prosecution claim are malice in instituting or continuing the prosecution, lack of probable cause, and termination of the action in favor of the defendant). However, even if probable cause did not exist here, Plaintiff has still failed to state a malicious prosecution claim for three reasons. First, Plaintiff provides no evidence other than his own allegations that Defendants maliciously prosecuted him. Second, in the Proposed Findings of Fact (doc. no. 24) Plaintiff admits as irrelevant the fact "Ptl. Kelly had no malice against [Plaintiff] at the time he filed charges or at any time. Id. at 34. Finally, only the person who actually makes the decision to prosecute may be found liable for malicious prosecution. McKinley v. City of Mansfield , 404 F.3d 418, 444 (6th Cir. 2005). The person who makes the decision to arrest is not responsible for the decision to prosecute, thus Plaintiff's claim of malicious prosecution is erroneous and summary judgment is granted in favor of Defendants.
VI. Qualified Immunity
Because summary judgment is granted in favor of Defendants on both the probable cause and malicious prosecution claims, it is unnecessary to reach Defendant Ptl. Kelly's qualified immunity claim. However, assuming that Defendants did not have probable cause, summary judgment would nonetheless be granted in Ptl. Kelly's favor because he is entitled to qualified immunity. Taking the facts in the light most favorable to the non-movant, Plaintiff has already admitted that Ptl. Kelly had no malice against him at the time of the arrest (doc. 24 ¶ 34), which means that he cannot state a malicious prosecution claim. Thus, the only way for Plaintiff to defeat Defendant's qualified immunity defense is to show that his Fourth Amendment rights were violated.
The central purpose of affording public officials qualified immunity from suit is to protect them from undue interference with their duties and from potentially disabling threats of liability. Dickerson v. McClellan , 101 F.3d 1151, 1157 (6th Cir. 1996) ( quoting, Elder v. Holloway , 510 U.S. 510, 514 (1994). The two part test for qualified immunity requires first that the court consider whether a constitutional right would have been violated on the facts alleged, and second, assuming the violation is proven, the court must then determine whether the constitutional right was clearly established. Saucier v. Katz , 533 U.S. 194, 200 (2001); see , Barnes v. Wright , 449 F.3d 709, 715 (6th Cir. 2006) (upholding the Supreme Court's test for qualified immunity). "The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he was confronted with." Id. at 202. If the contours of the right alleged to have been violated are not clear enough to put the officer on notice, summary judgment based on qualified immunity is appropriate. Id. ; see , Malley v. Briggs , 475 U.S. 335, 341 (1986) (holding that qualified immunity protects all but the plainly incompetent or those who knowingly violate the law). This inquiry is not a broad, general proposition, but must rather be made in light of the specific facts which are peculiar to this case. Saucier , at 201. If officials of reasonable competence could objectively disagree on the law, immunity should be granted. Anderson v. Creighton , 483 U.S. 637, 640 (1987).
In the present case, assuming that Ptl. Kelly did not have probable cause, Plaintiff would still fail on the second part of the test for overcoming the qualified immunity defense. Although the Fourth Amendment right to be free from unreasonable searches is clearly established, the contours of that right were not so clear under the current facts. In light of the pre-existing case law set forth by Ybarra and Pringle , the alleged unlawfulness of Ptl. Kelly's actions would not have been readily apparent to him at the time of the arrest. "It is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and . . . in such cases those officials . . . should not be held personally liable." Creighton , at 715. Thus, Plaintiff cannot fulfill the second part of the qualified immunity test, and Defendant Ptl. Kelly would, therefore, be entitled to qualified immunity.
Finally, because Plaintiff has neither claimed in the Complaint, submitted evidence, nor offered any argument which would establish an official policy on the part of Defendant, City of North College Hill, which has resulted in any harm to Plaintiff in this case, summary judgment is granted to Defendant, City of North College Hill, on Plaintiff's official capacity claim as well.
Conclusion
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED in its entirety.
The case is DISMISSED WITH PREJUDICE and is TERMINATED on the docket of this Court.
IT IS SO ORDERED.