Opinion
Case No. 2:04-cv-578.
June 25, 2007
Memorandum Opinion Order
Plaintiff Edward Swann, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983 alleging that Defendants, the City of Columbus and several of its police officers, violated his constitutional rights during the course of his arrest. On July 31, 2006, this Court granted Defendants' motion for summary judgment and on August 1, 2006, final judgment was entered. This matter is before the Court on Plaintiff's May 8, 2007 motion for relief from judgment. (Record at 125). For the reasons stated below, that motion is denied.
I. Background and Procedural History
Early in the morning hours of March 10, 2003, Columbus police officers spotted Plaintiff trying to break into a computer warehouse. Plaintiff fled the scene in his Jeep. Officer James Carsey attempted to stop him in a hospital parking lot, but Plaintiff allegedly rammed his Jeep into the police cruiser and again fled. With the aid of a police helicopter, officers were able to track Plaintiff to East 11th Avenue in Columbus. Plaintiff crashed his Jeep into a parked minivan and came to a stop after driving over spikes placed in the road by police. Plaintiff alleges that the police officers then ordered him from his car at gunpoint and, without provocation, kicked him in the head, twisted his elbow, and covered his mouth and nose until he lost consciousness. Plaintiff also alleges that one of the female officers pulled down his pants and ridiculed him.
Defendants, on the other hand, claim that Plaintiff exited his Jeep and charged Officer Carsey, pinning him to the ground. Other officers arrived on the scene and had to use force against Plaintiff in order to bring him under control.
Plaintiff's Amended Complaint sought relief under 42 U.S.C. § 1983 for alleged violations of his First, Eighth, and Fourteenth Amendment rights. Defendants included the City of Columbus and seven of its police officers. On July 31, 2006, the Court adopted Magistrate Judge Abel's May 30, 2006 Report and Recommendation, and dismissed all claims against the individual police officers based on Plaintiff's failure to effect service within 120 days of filing the Amended Complaint.
The Court also granted summary judgment in favor of the City, concluding that Plaintiff had not presented sufficient evidence from which a reasonable jury could find that the alleged constitutional violations were caused by a custom or policy of the City. With respect to the failure to train claim, the Court found that there was no evidence that the City failed to adequately train its police officers, and that Plaintiff had failed to identify any connection between the alleged lack of training and the alleged assault. With respect to the claims of failure to investigate and failure to discipline, the Court noted that the City had conducted an investigation, and had cleared the officers of any wrongdoing. Plaintiff produced no evidence that the City had a history of failing to investigate complaints or failing to discipline officers. The Court found that, absent evidence of a history of widespread abuse, Plaintiff's disagreement with the outcome of this particular investigation was not enough to impose liability on the City.
The Court further noted that, in Plaintiff's response to the motion for summary judgment, he alleged that the police officers, in order to cover up their wrongdoing, had conspired to create a fraudulent investigative report about the details surrounding his arrest. The Court found, however, that Plaintiff had not alleged with any particularity how the City was involved in the alleged conspiracy, and had failed to raise a genuine issue of law or fact concerning whether a municipal policy or custom was the moving force behind the alleged constitutional violation.
On May 8, 2007, Plaintiff filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) based on newly discovered evidence and fraud. Rule 60(b) provides in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons:
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(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . .
Fed.R.Civ.P. 60(b). Plaintiff's motion essentially expounds on his previously-asserted conspiracy theory.
II. Newly Discovered Evidence
The Sixth Circuit has held that in order to prevail on a motion for relief from judgment based on newly discovered evidence, a "movant must demonstrate (1) that it exercised due diligence in obtaining the information and (2) [that] `the evidence is material and controlling and clearly would have produced a different result if presented before the original judgment.'"Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir. 1998).
Plaintiff alleges that he has new evidence that will prove that the police officers conspired with each other to falsify the investigative report and traffic crash report to cover up their own wrongdoing. According to Plaintiff, he now has proof that he did not crash into Valencia Daniels' minivan in the manner indicated in the traffic crash report, and proof that Sergeant Shirk falsified photos of the crash. Plaintiff also claims to have a witness who will verify that the police officers used road spikes and a road block to seize him, and who can prove that Officer Sagle falsified the traffic crash report. Plaintiff, however, does not identify this witness and submits no affidavit or other declaration from that person.
Plaintiff also claims that he is in the process of trying to retrieve a copy of a tow truck driver's report which will allegedly prove that Plaintiff's tires were destroyed by road spikes. However, no report has yet been submitted.
In support of his motion for relief from judgment, Plaintiff submitted several exhibits, including his own affidavit, Officer Sagle's traffic crash report, Action Response Reports from the officers who arrested him, a copy of Sergeant Shirk's investigative report, some photographs, and a sketch Plaintiff made of the scene. As a threshold matter, the Court notes that many of these exhibits are not "newly discovered" at all. All of the police reports have previously been made part of the record. With respect to the photographs, Plaintiff's affidavit, and his sketch of the scene where the incident occurred, Plaintiff makes absolutely no effort to explain why he could not have submitted this evidence before the Court ruled on the motion for summary judgment. The Court concludes that Plaintiff has failed to establish that he could not have presented this evidence at an earlier time had he exercised due diligence.
Even if Plaintiff had exercised due diligence in submitting this information to the Court, it is clear that this evidence is not material and would not have changed the outcome of Defendants' motion for summary judgment. Plaintiff's claims against the individual officers were dismissed because they were never properly served with the Amended Complaint. No quantity of evidence will cure this fatal defect.
Likewise, additional evidence to support Plaintiff's previously-asserted theory that the individual police officers conspired with each other to falsify the investigative report in order to cover up the alleged wrongdoing does not remedy the fact that Plaintiff failed to present any evidence that a custom or policy of the City was the moving force behind the alleged constitutional violations. As the Court previously held, Plaintiff has not alleged with any particularity how the City participated in the alleged conspiracy. He appears to argue that Sergeant Shirk's participation in "conspir[ing] with his subordinates" is sufficient to impose liability on the City. Plaintiff alleges that Shirk "supervises the municipal policies for this particular police station." However, there is no evidence to support a finding that Sergeant Shirk is a final "policymaker" such that his participation in the alleged conspiracy would subject the City to liability. The fact that his investigative report was reviewed by many higher-ranking officers clearly counsels against a finding that he was a "policymaker" with final authority.
Plaintiff also argues that the supervisors who reviewed Shirk's investigative report should have recognized that it was fraudulent and should have taken action to discipline the officers involved; instead, they ratified the officers' conduct. However, subsequent ratification of past wrongdoing cannot logically be the moving force behind the alleged constitutional violation. See Tompkins v. Frost, 655 F. Supp. 468, 472 (E.D. Mich. 1987) ("[w]rongful conduct after an injury cannot be the proximate cause of the same injury"). As the court noted inTomazic v. City of Cleveland, No. 1:04cv2252, 2006 WL 2661295, at *5 (N.D. Ohio Sept. 14, 2006), "[r]atification of a single misdeed, by failing to discipline the offender, even if it occurred, does not equate to governmental policy or custom." Plaintiff presented no evidence that the City had a history of failing to investigate complaints of misconduct, of failing to discipline officers for constitutional violations, or of creating false investigative reports to cover up unconstitutional conduct.
In short, because Plaintiff failed to present any evidence that a custom or policy of the City was the moving force behind the alleged constitutional violation, additional evidence to support Plaintiff's conspiracy theory does nothing to change the outcome of this case. For these reasons, the Court denies Plaintiff's motion for relief from judgment based on newly discovered evidence.
III. Fraud
Federal Rule of Civil Procedure 60(b)(3) allows a Court to grant relief from judgment if that judgment was procured as a result of fraud, misrepresentation or misconduct of an adverse party. Plaintiff claims that because Sergeant Shirk's investigative report and the traffic crash report contain false and misleading information, and because Defendants falsified certain photographs, Plaintiff is entitled to relief from judgment.
The Sixth Circuit has held that in order to obtain relief under Rule 60(b)(3), the movant must present clear and convincing evidence of fraud. See Jordan v. Paccar, Inc., No. 95-3478, 1996 WL 528950, at *9 (6th Cir. Sept. 17, 1996). If the movant meets this burden, prejudice is presumed, and the burden shifts to the non-moving party to show by clear and convincing evidence that the fraud had no prejudicial effect on the outcome of the litigation. Id. In this case, Plaintiff fails to satisfy his initial burden of establishing the alleged fraud by clear and convincing evidence.
To succeed on a claim for common law fraud, a plaintiff must prove: (a) a representation or, where there is a duty to disclose, concealment of a fact; (b) which is material to the transaction at hand; (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred; (d) with the intent of misleading another into relying upon it; (e) justifiable reliance upon the representation or concealment; and (f) a resulting injury proximately caused by the reliance. Burr v. Board of County Comm'rs of Stark Co., 23 Ohio St.3d 69, 491 N.E.2d 1101, 1105 (1986).
Plaintiff alleges that Defendants included false information in their reports in order to cover up their alleged wrongdoing. According to the police reports, Officer Carsey was the only officer on the scene when Plaintiff crashed his Jeep. Plaintiff allegedly got out of the Jeep, charged at Officer Carsey, and pinned him to the ground. Officer Carsey punched Plaintiff in the head in an attempt to subdue him. Other officers then arrived at the scene and assisted Officer Carsey in handcuffing Plaintiff.
Plaintiff denies that this is what happened. He claims that two police cars were already at the site when he crashed the Jeep and four other police cars were chasing him. He maintains that after he crashed his Jeep, he was ordered from the vehicle at gunpoint and told to lie spread eagle on the ground. According to Plaintiff, although he immediately complied with this request, the officers, who were all already at the scene, physically attacked him.
As evidence of the alleged fraud, Plaintiff notes that even though Defendants maintain that Officer Carsey was already engaged in a physical confrontation with him when the other officers arrived, all of the officers' incident reports indicate that they arrived on the scene at the same time, 1:32 a.m. Plaintiff notes that this appears to be consistent with his recollection of what happened. Plaintiff also finds it suspicious that none of the police reports state that road blocks and road spikes were used to stop his Jeep. He argues that because somebody had to set up the road blocks and throw down the road spikes, Defendants' assertion that Officer Carsey was initially the only officer on the scene is simply not credible.
Neither the fact that the officers all stated that they arrived on the scene at 1:32 a.m. nor the fact that their reports fail to mention that road blocks and road spikes were used to apprehend Plaintiff demonstrates, by clear and convincing evidence, that the police reports were fraudulent. Because events surrounding Plaintiff's apprehension were unfolding very quickly, Defendants' version of what transpired is not necessarily inconsistent with their statements that they all arrived on the scene at 1:32 a.m. It is entirely possible that, within the span of one minute, Plaintiff crashed his Jeep and became involved in an altercation with Officer Carsey, and other officers then arrived to provide assistance.
Moreover, there is simply no evidence that the officers omitted mention of the use of road blocks and road spikes from their reports because they had something to hide. It is much more likely that this fact was omitted because it was not significant. The purpose of the Action Response Reports, completed by the officers who assisted in handcuffing Plaintiff, and of Sergeant Shirk's investigative report, is to assist higher-ranking officials in determining whether the physical force used against Plaintiff during the arrest was justified. Because the relevant inquiry focuses on what happened during the physical altercation with the police, and not on what led up to that point, the fact that the officers failed to mention the use of road blocks and road spikes is not surprising.
Plaintiff also takes issue with certain photographic evidence submitted by Defendants. One picture shows Plaintiff's Jeep after the accident. Plaintiff claims to have a witness who will testify that the front end of the Jeep was already wrecked before his encounter with the police. (Ex. A10 to Mot. for Relief). But again, he does not submit any affidavit or other declaration from this witness. Plaintiff also claims that one of the pictures shows that it was a police cruiser that crashed into Valencia Daniels' van. (Ex. A11 to Mot. for Relief). He also argues that a photograph of that van depicts the van facing east when it was actually facing west. (Ex. A12 to Mot. for Relief). Even assuming that Plaintiff is correct that Defendants somehow falsified these photographs, the relevance of this evidence is extremely questionable, particularly in light of Plaintiff's admission that he did clip Ms. Daniels' van with his Jeep. Certainly, it does not rise to the level of clear and convincing evidence of fraud.
Even if Plaintiff had presented clear and convincing evidence of fraud, Defendants could easily show that the alleged fraud had no prejudicial effect on the outcome of the litigation. As noted earlier, the claims against the individual defendants would have been dismissed anyway based on a failure to effect service, and the claims against the City would have been dismissed because Plaintiff failed to establish that a policy or custom of the City was the moving force behind the alleged constitutional violations. Because the alleged fraud is not relevant to the bases on which the Court rendered summary judgment in favor of Defendants, Plaintiff's motion for relief from judgment under Rule 60(b)(3) lacks merit. See Williams v. United States Drug Enforcement Admin., 51 F.3d 732, 736 (7th Cir. 1995).
IV. Conclusion
IT IS SO ORDERED.
DENIED.