No. 22549. | Ohio Ct. App. | Jan 9, 2009
{¶ 2} On January 7, 2004, Dayton Police Officer Mary Lou Goodwill-Phillips removed W.P., age thirteen, from the public school where he was enrolled and interrogated him concerning crimes of rape and gross sexual imposition W.P. was suspected of committing. The officer had obtained the permission of W.P.'s mother to speak with him.
{¶ 3} W.P. made statements during his interrogation by Officer Goodwill-Phillips that incriminated him in the crimes the officer was investigating. W.P. was subsequently charged in Juvenile Court, but his statements were suppressed on findings that his constitutional rights were violated during the interrogation. The charges were later dismissed by the State.
{¶ 4} W.P. and his mother commenced an action against Dayton and the Montgomery County Education Center, which maintained the school in which W.P. was enrolled. An Amended Complaint (Dkt. 27) alleged common law bodily injury claims and claims brought pursuant to
{¶ 5} The trial court granted a Civ. R. 12(C) judgment on the pleadings in favor of the Montgomery County Education Center, and that judgment is not challenged in this appeal. *3 The court subsequently granted a combined Civ. R. 12(C) motion and a Civ. R. 56 motion for summary judgment filed by Dayton on the claims for relief against it. (Dkt 53). Plaintiffs filed a timely notice of appeal from that judgment and order.
ASSIGNMENT OF ERROR
{¶ 6} "THE TRIAL COURT ERRED WHEN IT GRANTED JUDGMENT ON THE PLEADINGS AS WELL AS SUMMARY JUDGMENT WITH REGARDS TO ALL OF APPELLANT'S CLAIMS FOR RELIEF."
{¶ 7} Plaintiffs' Amended Complaint alleges that the police interrogation to which W.P. was subjected by Officer Goodwill-Phillips proximately resulted in bodily injuries arising from emotional and psychological distress W.P. suffered. The trial court granted a Civ. R. 12(C) motion for judgment on the pleadings that Dayton filed, finding that Dayton is immune from liability on those bodily injury claims pursuant to R.C.
{¶ 8} Officer Goodwill-Phillips is a police employee of Dayton, and Dayton is a "political subdivision" of the State of Ohio. R.C.
{¶ 9} Plaintiffs argue that R.C.
{¶ 10} "In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to persons or property when liability is expresslyimposed upon the political subdivision by a section of the Revised Code, including, but not limited to, sections
{¶ 11} Plaintiffs do not identify any statutory provision that expressly imposes liability on Dayton in the circumstances alleged in their Amended Complaint. They rely on constitutional guarantees and prohibitions, and refer in general to requirements applicable to juveniles. But, none of those expressly impose liability for their violation. *5
Therefore, we agree with the trial court that R.C.
{¶ 12} Plaintiffs also alleged that W.P.'s rights guaranteed by the
{¶ 13} It is undisputed that Officer Goodwill-Phillips acted under color of law for purposes of
{¶ 14} Absent a proclamation or edict, the required policy or custom may be proved by evidence that a practice is so persistent or widespread that a governmental entity's policy-making officers had constructive knowledge of it, but failed with deliberate indifference to correct it. The existence of a policy or custom may also be proved by evidence of similar misconduct in the past, or by evidence of its subsequent ratification by the governmental entity. Miller v. Leesburg (Dec. 1, 1998), Franklin App. Nos. 97APE10-1379 and 1380, p. 20.
{¶ 15} Dayton moved for summary judgment on Plaintiffs'
{¶ 16} Dayton's motion and Smith's affidavit imposed a *7
reciprocal burden on Plaintiffs to offer evidence setting forth specific facts showing that there is a genuine issue of material fact for trial concerning their claim that Officer Goodwill-Phillips followed a custom or policy of Dayton in her interrogation of W.P. Dresher v. Burt (1996),
{¶ 17} Plaintiffs asserted in a memorandum contra Dayton's motion for summary judgment that Officer Goodwill-Phillips, in her testimony in the proceeding in the Juvenile Court on W.P.'s motion to suppress, stated "that her tactics are tactics undertaken in the normal course of the law enforcement `business.'" (Dkt 47). The trial court found that assertion insufficient to satisfy Plaintiffs' burden under Dresher because it was not set out in any of the evidentiary materials identified in Civ. R. 56(C), which also provides: "No evidence or stipulation may be considered except as stated in this rule."
{¶ 18} Plaintiffs make the same assertion on appeal concerning Officer Goodwill-Phillips' testimony in the Juvenile Court proceeding. They further contend that transcripts of such testimony are maintained under seal by the *8
Juvenile Court. Plaintiffs do not state that they asked the Juvenile Court to unseal its record, and absent that we must presume that no such request was made. That left the trial court in the present case with Plaintiffs' bare assertion, which is nonconforming evidence that the court was not obligated to consider. Armaly v. City of Wapakoneta, Auglaize App. No. 2-05-45,
{¶ 19} The trial court did not err in granting summary judgment for Dayton on its motion, because Wanda Smith's affidavit, if believed, demonstrates that the alleged acts or omissions of Officer Goodwill-Phillips in her interrogation of W.P. on which his
{¶ 20} The assignment of error is overruled. The judgment of the trial court will be affirmed.
BROGAN, J. And FAIN, J., concur.
Copies mailed to:
Charles W. Slicer, III, Esq.
*9Shannon M. Potts, Esq.
*1Hon. Dennis J. Langer