ERIC L. WIGGINS v. MARK KUMPF, et al.
Appellate Case No. 26263
IN THE COURT OF APPEALS OF OHIO, SECOND APPELLATE DISTRICT, MONTGOMERY COUNTY
Rendered on the 23rd day of January, 2015.
[Cite as Wiggins v. Kumpf, 2015-Ohio-201.]
Attorney for Plaintiff-Appellant
MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. #0061560, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellees
HALL, J.
{¶ 1} Eric Wiggins appeals from a trial court’s entry of summary judgment on his claims for false arrest, defamation of character, and malicious prosecution. We affirm.
{¶ 2} Mark Kumpf is the chief county dog warden for Montgomery County, Ohio, and runs the Animal Resource Center, the county’s animal shelter. As the dog warden, Kumpf, and his deputies, are required to enforce statutes governing dogs, which cover licensing, animal cruelty, and dogfighting. In November 2012, Kumpf was called to Wiggins’s home after children walking nearby saw a dead dog hanging in the garage. Kumpf knocked on the front door of the house, but no one answered because Wiggins was on vacation. Looking around the property, Kumpf saw, in addition to the dead hanging dog, five live dogs outside, some of which were pitbulls, and he heard another dog inside the garage barking. He saw little water available for the dogs outside to drink and saw a female pitbull that appeared to have a distended uterus. Kumpf noticed that several of the pitbulls had cropped ears and several were chained to dog houses with heavy chains. He also saw “spring poles” with cowhides hanging from them. Kumpf checked the county’s dog-license records and discovered that while Wiggins had a kennel license for five Presa Canario dogs he had no license for the pitbulls.
{¶ 3} Based on what Kumpf saw and learned, he suspected violations of dog licensing, animal cruelty, and dogfighting statutes. He prepared an affidavit and applied to a judge for a search warrant. The judge issued the warrant, and immediately after, Kumpf, some of his deputies, and some Sheriff’s deputies, went to Wiggins’s property and executed it. Afterwards, Kumpf continued to supervise the investigation and collate information, which he then presented to the prosecutor’s office. As a result Wiggins was charged with multiple felonies, but a grand jury refused to indict him, returning a “no true bill” of indictment, so the prosecutor dismissed the charges.
{¶ 5} Wiggins appealed.
II. ANALYSIS
{¶ 6} Wiggins assigns error to the overruling of his motion for disclosure of grand jury testimony and to the entry of summary judgment.
A. Grand Jury Testimony
{¶ 7} The first assignment of error alleges that the trial court erred by overruling Wiggins’s motion for disclosure of grand jury testimony.
{¶ 8} “There is a long history of secrecy attendant to grand jury proceedings.” State v. Webb, 2d Dist. Greene No. 2005 CA 52, 2006-Ohio-1113, ¶ 12. A court may order disclosure of evidence presented to a grand jury “only after the court carefully weighs the need to maintain the secrecy of the grand jury proceedings against petitioner’s need for the information and determines that justice can only be done if disclosure is
{¶ 9} In his motion for disclosure, Wiggins says that he needs Kumpf’s grand jury testimony “[i]n order to prove his claim for malicious prosecution.” (Plaintiff’s Motion for Disclosure of Grand Jury Testimony, 2). “Wiggins has the burden to prove that defendant Kumpf acted with a malicious purpose,” he continues, “and, as such, what Kumpf may have told the grand jury may corroborate that allegation and prove the claim.” (Emphasis added.) (Id.). Wiggins wanted to use Kumpf’s grand jury testimony during his (Kumpf’s) deposition “for possible impeachment purposes.” (Id.). The trial court concluded that this is not a particular need and does not outweigh the secrecy of grand jury proceedings. We agree.
{¶ 10} A “speculative claim that the grand jury testimony might have contained material evidence or might have aided * * * cross-examination does not establish a
{¶ 11} Because the trial court did not abuse its discretion in finding no particularized need, the first assignment of error is overruled.
B. Summary Judgment
{¶ 12} The second assignment of error alleges that the trial court erred by granting the defendants’ motion for summary judgment. Wiggins’s argument focuses on Kumpf, contending that the trial court incorrectly concluded that he is immune from civil liability under the Political Subdivision Tort Liability Act, specifically,
{¶ 13} “Immunity from a civil suit presents a purely legal issue that may properly be determined by summary judgment.” Thorp v. Strigari, 155 Ohio App.3d 245, 2003-Ohio-5954, 800 N.E.2d 392, ¶ 10 (1st Dist.), citing Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862 (1992). Summary judgment should be entered if the evidence “show[s] 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” and “that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.”
{¶ 14}
{¶ 15} “When a plaintiff sues an individual employee of a political subdivision, the analysis begins with
{¶ 17} An affidavit supporting an application for a search warrant must set forth circumstances that provide a substantial basis for concluding that there is probable cause that evidence of a crime will be found. State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraphs one and two of the syllabus. Probable cause “has been defined as ‘ “a reasonable ground for belief of guilt.” ’ ” State v. Moore, 90 Ohio St.3d 47, 49, 734 N.E.2d 804 (2000), quoting Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 69
{¶ 18} Nothing in the record suggests that Kumpf, in obtaining or executing the search warrant or in presenting his findings to the prosecutor, acted recklessly. Given the circumstances alleged in the affidavit, reiterated in Kumpf’s deposition, it was reasonable for him to suspect statutory violations. The circumstances provide a “substantial basis” for concluding that probable cause existed. Compare Patton v. Wood Cty. Humane Soc., 154 Ohio App.3d 670, 2003-Ohio-5200, 798 N.E.2d 676 (6th Dist.) (humane-society employee entitled to statutory immunity where employee obtained and executed a search warrant after receiving a phone call that horses, sheep, and a pony were outside without shelter during cold weather; warrant was based on probable cause, and employee did not act with malicious purpose, bad faith, or in a wanton or reckless manner).
{¶ 19} Wiggins contends that the grand jury’s decision not to indict him “necessarily mean[s] that there was a lack of probable cause in the institution of the prosecution.” Because, he says, “an indictment is otherwise prima facie evidence of probable cause; conversely, the return of a no true bill or a nolle prosequi suggests a lack of probable cause.” (Brief of Plaintiff-Appellant, 5). In support of these propositions, Wiggins cites Deoma v. Shaker Heights, 68 Ohio App.3d 72, 587 N.E.2d 425 (8th Dist.1990), and Melanowski v. Judy, 102 Ohio St. 153, 131 N.E. 360 (1921).
{¶ 21} The second assignment of error is overruled.
{¶ 22} The judgment of the trial court is affirmed.
. . . . . . . . . . . . .
FAIN, J., and WELBAUM, J., concur.
Mathias H. Heck, Jr.
R. Lynn Nothstine
Daniel E. Whiteley, Jr.
Hon. Dennis J. Adkins