            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 09a0401n.06

                                       No. 08-3339                                FILED
                                                                               Jun 03, 2009
                                                                         LEONARD GREEN, Clerk
                      UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT




TOMMY FULLER,                             )
                                          )
       Plaintiff-Appellant,               )      ON APPEAL FROM THE UNITED
                                          )      STATES DISTRICT COURT FOR
v.                                        )      THE NORTHERN DISTRICT OF
                                          )      OHIO AT CLEVELAND
CUYAHOGA METROPOLITAN                     )
HOUSING AUTHORITY, et al.,                )
                                          )
       Defendants-Appellees,              )


BEFORE: COLE, GIBBONS, Circuit Judges; and BELL, District Judge.*

       BELL, DISTRICT JUDGE. Plaintiff-Appellant Tommy Fuller appeals the district

court’s entry of summary judgment for defendants on his claims under 42 U.S.C. § 1983 and

state law for unreasonable search and seizure, excessive force, malicious prosecution, and

intentional infliction of emotional distress.1 For the following reasons, we AFFIRM.

                                   I. BACKGROUND

       Plaintiff Tommy Fuller was employed by the Cuyahoga Metropolitan Housing


       *
        The Honorable Robert Holmes Bell, United States District Judge for the Western
District of Michigan, sitting by designation.
       1
       Fuller does not appeal the district court’s dismissal of his due process, conspiracy,
and negligent hiring, training, supervision, and retention claims.
No. 08-3339
Fuller v. CMHA

Authority (“CMHA”) as a boilermaker. He was responsible for maintaining the boiler

heating systems in some CMHA housing units. On January 3, 2003, at the conclusion of his

shift, Fuller stopped at 2481 Morris Black Place, Unit G, in the CMHA housing units at

Woodhill Estates, to use the restroom. Unit G is identified as a police mini-station, but it has

been vacant since 1995, and is used by CMHA maintenance staff as a break room. According

to Fuller, while he was using the restroom he heard some pounding on the door downstairs.

When he came out of Unit G, Officers Thomas Burdyshaw and James Harris, two CMHA

security officers, were running towards him with their guns drawn. The officers began

questioning Fuller and then grabbed him, punched him, pulled him to the ground, sprayed

him with pepper spray, and handcuffed him. Fuller was arrested and charged with assault.

He was jailed for four days. On January 9, 2003, CMHA fired Fuller from the job he had

held for nineteen years. On May 27, 2004, Plaintiff was acquitted of the criminal charge of

assault on a police officer.

       Fuller filed an initial action regarding these events on January 3, 2005. That action

was dismissed without prejudice on August 30, 2005. Plaintiff filed the current action on

August 30, 2006, against CMHA, CMHA’s Board of Commissioners, CMHA’s Executive

Director George Phillips, and CMHA’s police officers, Patrolman Thomas Burdyshaw,

Patrolman James Harris, Sergeant Christopher Jakub, Chief Anthony Jackson, and John Doe

training officers 1-20, alleging claims under 42 U.S.C. § 1983 and state law for: use of


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No. 08-3339
Fuller v. CMHA

excessive force; unreasonable search and seizure; denial of due process; deprivation of his

right to liberty, health, safety, privacy, and welfare; conspiracy; intentional infliction of

emotional distress; negligent hiring and retention; negligent training and supervision; and

malicious prosecution.

       In a series of carefully-considered and well-written opinions, the district court

dismissed some of the defendants, dismissed some of Fuller’s state law claims with

prejudice, entered summary judgment for Defendants on Fuller’s § 1983 and § 1985 claims,

and dismissed Fuller’s remaining state law claims without prejudice.2 The issues on appeal

are limited to the district court’s entry of summary judgment on the § 1983 claims, its

dismissal of the intentional infliction of emotional distress claim as to Defendant CMHA, and

its dismissal of the malicious prosecution claim as to all Defendants.

                                      II. ANALYSIS

       A. § 1983 Claims

       2
        In two opinions and orders dated January 11, 2007, the district court dismissed the
claims against George Phillips and the CMHA Board of Commissioners as time-barred.
(Dkt. Nos. 28, 29.) In an opinion and order dated January 25, 2007, the district court
dismissed Plaintiff’s malicious prosecution claim and Plaintiff’s intentional infliction of
emotional distress claim against Defendant CMHA. (Dkt. No. 31.) In an opinion and order
dated March 30, 2007, the district court dismissed Plaintiff’s claims for deprivation of the
right to due process and for deprivation of the right to liberty, health, safety, privacy and
welfare. (Dkt. No. 44.) In an opinion and order dated February 6, 2008, the district court
entered summary judgement in favor of Defendants on Plaintiff’s § 1983 claims of excessive
force, unreasonable search and seizure, and conspiracy, and dismissed Plaintiff’s remaining
state law claims with prejudice. (Dkt. No. 69.)

                                             3
No. 08-3339
Fuller v. CMHA

       The district court entered summary judgment in favor of Defendants on Fuller’s

§ 1983 claims. The district court determined that Defendants Burdyshaw and Harris were

entitled to summary judgment on Fuller’s Fourth Amendment excessive force and search and

seizure claims because Fuller failed to show that their conduct violated a constitutional right.

See Marvin v. City of Taylor, 509 F.3d 234, 244 (6th Cir. 2007) (“If there is no constitutional

violation, then the plaintiff’s § 1983 claim fails as a matter of law and the defendant is

therefore entitled to summary judgment and does not need qualified immunity.”). The

district court determined that Defendants Jakub, Jackson, and CMHA were entitled to

summary judgment because, in the absence of an underlying constitutional violation, Fuller

could not state a supervisory liability or failure to train claim against them. See City of Los

Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person has suffered no constitutional

injury at the hands of the individual police officer, the fact that the departmental regulations

might have authorized the use of constitutionally excessive force is quite beside the point.”);

Jones v. City of Cincinnati, 521 F.3d 555, 560 (6th Cir. 2008) (“A municipality cannot be

held liable under § 1983 absent an underlying constitutional violation by its officers.”).

       On appeal, Fuller does not challenge the district court’s recitation of the governing

legal principles. Instead, Fuller claims that the entry of summary judgment in favor of

Defendants must be reversed because the district court ignored its obligation to review the

record in the light most favorable to Fuller, to accept Fuller’s uncontroverted evidence as


                                               4
No. 08-3339
Fuller v. CMHA

true, and to draw all reasonable inferences in his favor.

       “We review a district court’s grant of summary judgment de novo.” Seals v. Gen.

Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008). “In deciding a motion for summary

judgment, the court must view the factual evidence and draw all reasonable inferences in

favor of the nonmoving party.” Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)). “At the summary judgment stage, facts must be viewed in the

light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those

facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Fed. R. Civ. P. 56(c)).

       Fuller contends that the district court failed to consider certain undisputed facts that

were favorable to him, including evidence that he had a CMHA logo on his shirt and that

Unit G had been used for years by CMHA maintenance personnel as a break room. The

objective reasonableness of an officer’s stop, seizure, or use of force, depends on what was

known to the officer at the time he engaged in the conduct at issue. Humphrey v. Mabry, 482

F.3d 840, 848-49 (6th Cir. 2007). Accordingly, the omitted evidence would only be material

to the district court’s analysis if it was known to the officers. Although Fuller asserts that the

officers knew or should have known these facts, Fuller did not present any evidence to

support this assertion. Accordingly, Fuller has not shown that the evidence was material to

the district court’s analysis.

       Fuller also contends that the district court improperly viewed the evidence in the light


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No. 08-3339
Fuller v. CMHA

most favorable to the Defendants rather than to him when it found that he was uncooperative,

that he was fidgeting with his clothes, that he told the officers that if they touched him “it

was on,” and that he resisted the officers’ attempt to place him in handcuffs. The evidence

at issue is contained in Defendants’ affidavits. Neither Fuller’s deposition testimony nor his

affidavit contained any evidence that was inconsistent with Defendants’ description of

Fuller’s behavior. Because Fuller did not present any evidence to contradict the officers’

statements regarding his behavior, there was no material dispute regarding this evidence and

the district court did not err in relying upon it.

       Finally, Fuller contends that the court disregarded the testimony of Tonya Roberson

regarding the force used. Ms. Roberson’s testimony reveals that she did not see what

precipitated the officers’ actions. Accordingly, she was not in a position to evaluate the

objective reasonableness of the force used.

       Upon de novo review of the record, we conclude that the district court, in an unusually

thorough and well-written opinion, properly drew all reasonable inferences in Fuller’s favor

to the extent supportable by the record, and did not improperly weigh the evidence or

overlook any genuine issues of material fact. We affirm the entry of summary judgment in

favor of Defendants on Fuller’s § 1983 claims for the reasons stated in the district court’s

thorough and well-reasoned opinion.

       B. Intentional Infliction of Emotional Distress Claim Against CMHA


                                                6
No. 08-3339
Fuller v. CMHA

       The district court dismissed Fuller’s intentional infliction of emotional distress claim

against CMHA because CMHA is a political subdivision that is entitled to immunity under

the Ohio Political Subdivision Tort Liability Act, Ohio Rev. Code § 2744.02(A)(1), and

because there is no exception to immunity protecting political subdivisions from liability for

the intentional infliction of emotional distress claims of its employees. In support of this

conclusion the district court cited Hubbard v. Canton City School Board of Education, 780

N.E.2d 543 (Ohio 2002), and Wilson v. Stark County Department of Human Services, 639

N.E.2d 105 (Ohio 1994).

       On appeal, Fuller contends that the district court erred in dismissing his intentional

infliction of emotional distress claim on immunity grounds because the municipal immunity

statute does not apply to claims by an employee against his employer that arise out of the

employment relationship. See Ohio Rev. Code § 2744.09(B) (providing that the immunity

statute does not apply to “[c]ivil actions by an employee . . . against his political subdivision

relative to any matter that arises out of the employment relationship between the employee

and the political subdivision”). Fuller notes that the district court did not address this

statutory exception, and that neither Hubbard nor Wilson, the cases cited by the district court,

addressed claims by municipal employees against their employers.

       We review de novo a district court’s dismissal of a claim pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Gunasekera v. Irwin, 551 F.3d 461, 465-66 (6th Cir.


                                               7
No. 08-3339
Fuller v. CMHA

2009). “We construe the complaint in the light most favorable to the nonmoving party and

accept all well-pleaded factual allegations as true to determine whether the moving party is

entitled to judgment as a matter of law.” Doe v. SexSearch.com, 551 F.3d 412, 416 (6th Cir.

2008) (citing Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir.

2007)).

       It appears that Ohio courts are divided on the question of whether municipalities are

immune from intentional-tort claims brought by their employees. Compare Nagel v. Horner,

833 N.E.2d 300, 304-06 (Ohio Ct. App. 2005) (holding that a municipality is not immune

from intentional tort claims that arise out of the employment relationship), with Terry v.

Ottawa Co. Bd. of Mental Retardation & Developmental Disabilities, 783 N.E.2d 959, 964

(Ohio Ct. App. 2002) (holding that an employer’s intentional tort is not excepted under §

2744.09(B) from the statutory grant of immunity to political subdivisions because it does not

arise out of the employment relationship), and Kohler v. City of Wapakoneta, 381 F. Supp.

2d 692, 701 (N.D. Ohio 2005) (same), and the cases they cite. “In construing questions of

state law, a federal court must apply state law in accordance with the controlling decisions

of the highest court of the state.” Brown v. Cassens Transport Co., 546 F.3d 347, 363 (6th

Cir. 2008) (citing Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir. 1999)).

“If the state’s highest court has not addressed the issue, the federal court must attempt to

ascertain how that court would rule if it were faced with the issue.” Meridian, 197 F.3d at


                                             8
No. 08-3339
Fuller v. CMHA

1181. In this case we conclude that it is not necessary to determine how the Ohio Supreme

Court would resolve the issue of municipal immunity from intentional-tort claims brought

by employees because Fuller’s claim does not fall within the scope of § 2744.09(B).

       There is no dispute § 2744.09(B) does not exempt all claims by municipal employees

against their employers from immunity. It only applies to claims that “arise[] out of the

employment relationship between the employee and the political subdivision.” Ohio Rev.

Code § 2744.09(B). See Nungester v. Cincinnati, 654 N.E.2d 423, 427 (Ohio Ct. App. 1995)

(holding that the plaintiff city police officer was not entitled to rely on § 2744.09(B) to avoid

immunity because the rights he was asserting in his claims of false arrest and malicious

prosecution were purely personal rights that were not created by or dependent upon the

existence of his employment relationship with the city); Lentz v. City of Cleveland, 410 F.

Supp. 2d 673, 697 (N.D. Ohio 2006) (holding that the city was immune from liability on the

plaintiff police officer’s malicious prosecution and abuse of process claims because they did

not arise out of the employment relationship). The “arises out of” language means that the

§ 2744.09(B) exemption from immunity does not apply unless the claim is causally

connected to the employment relationship.

       Fuller alleged in his complaint that at the time of his arrest he was in the Morris Black

Place neighborhood to equip the boiler room with supplies for use over the weekend. Thus,

he contends that he was arrested while he was engaged in work for his employer. However,


                                               9
No. 08-3339
Fuller v. CMHA

the relevant consideration under § 2744.09(B) is not whether the claim arose while the

municipal employee was conducting his employer’s business, but whether the rights he is

asserting arose out of that employment relationship. Upon review of Fuller’s complaint, we

find that the rights he is asserting arose not out of his employment relationship with CMHA,

but out of his arrest. The rights he is asserting are “purely personal rights” that in no way are

“created by or dependent upon” the existence of Fuller’s employment relationship with the

city. See Lentz, 410 F. Supp. 2d at 697 (quoting Nungester, 654 N.E.2d at 427). On de novo

review, we conclude that Fuller’s intentional infliction of emotional distress claim against

CMHA is not causally connected to his employment relationship.                Accordingly, the

§ 2744.09(B) exception to the immunity statute does not apply, and the district court correctly

dismissed the intentional infliction of emotional distress claim against CMHA on the basis

of its immunity under Ohio Political Subdivision Tort Liability Act, Ohio Rev. Code

§ 2744.02(A)(1).

       C. Malicious Prosecution Claim

       The district court dismissed Plaintiff’s malicious prosecution claim with prejudice

because it was time-barred. On appeal, Fuller does not contest the district court’s finding

that he filed this action well beyond the one-year limitations period for malicious prosecution




                                               10
No. 08-3339
Fuller v. CMHA

claims.3 Instead, he contends that the district court erred in dismissing his malicious

prosecution claim because the Ohio saving statute, Ohio Rev. Code § 2305.19, applied to

save his claim from the running of the statute of limitations.

       By its terms the Ohio saving statute allows a plaintiff who voluntarily dismisses an

action after the statute of limitations has run to refile the action within one year of the

dismissal. Ohio Rev. Code § 2305.19.4 The saving statute has also been construed to save

a plaintiff’s action otherwise barred by the statute of limitations “‘when the original suit and

the new action are substantially the same.’” Stone v. N. Star Steel Co., 786 N.E.2d 508, 512

(Ohio Ct. App. 2003) (quoting Children’s Hosp. v. Ohio Dep’t of Pub. Welfare, 433 N.E.2d

187, 189 (Ohio 1982)). “A new complaint is substantially the same as the original complaint

for purposes of the saving statute when the new complaint differs only to the extent that it



       3
         Fuller does not challenge the district court’s findings that the statute of limitations
for malicious prosecution claims is one year, Ohio Rev. Code § 2305.11(A), that his
malicious prosecution claim accrued on June 3, 2004, when he was acquitted, and that he did
not file a malicious prosecution claim until August 30, 2006.
       4
           The Ohio saving statute provides, in pertinent part:

       (A) In any action that is commenced . . . if the plaintiff fails otherwise than
       upon the merits, the plaintiff . . . may commence a new action within one year
       after the date of . . . the plaintiff’s failure otherwise than upon the merits or
       within the period of the original applicable statute of limitations, whichever
       occurs later. . . .

Ohio Rev. Code § 2305.19.

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No. 08-3339
Fuller v. CMHA

adds new recovery theories based upon the same factual occurrences stated in the original

complaint.” Id. “When determining whether the new complaint and the original complaint

are substantially the same, a court must determine whether the allegations in the first action

gave the defendant fair notice of the type of claims asserted in the second action.” Id. “As

a matter of policy, the saving statute is to be liberally construed so that controversies are

decided upon important substantive questions rather than upon technicalities of procedure.”

Id.

       Fuller contends that although he did not allege a malicious prosecution claim in his

original complaint, his original complaint alleged all of the facts necessary to support each

element of a malicious prosecution claim, and was sufficient to give Defendants fair notice

of the malicious prosecution claim. We disagree.

       Fuller’s original complaint alleged six claims:        (1) use of excessive force; (2)

unreasonable search and seizure; (3) conspiracy; (4) intentional infliction of emotional

distress; (5) negligent hiring and retention; and (6) negligent training and supervision. It did

not make a claim for malicious prosecution, nor did it allege that the prior proceedings lacked

probable cause, an essential element of a malicious prosecution claim.5

       5
        The elements of a malicious prosecution claim are: (1) malicious institution of prior
proceedings against the plaintiff; (2) lack of probable cause for the filing of the prior lawsuit;
(3) termination of the prior proceedings in plaintiff’s favor; and (4) seizure of plaintiff’s
person or property during the course of the prior proceedings. Robb v. Chagrin Lagoons
Yacht Club, Inc., 662 N.E.2d 9, 13 (Ohio 1996).

                                               12
No. 08-3339
Fuller v. CMHA

       “The tort of malicious criminal prosecution compensates the plaintiff for the damage

to dignity and reputation caused by false accusation of a crime.” Trussell v. Gen. Motors

Corp., 559 N.E.2d 732, 736 (Ohio 1990), overruled in part on other grounds by Robb, 662

N.E.2d at 13-14. Although Fuller’s original complaint included allegations that he had been

indicted, tried, and acquitted on the assault charges, the emphasis of Fuller’s factual

allegations was on the circumstances of his arrest rather than on the allegedly false

accusation of a crime. By contrast, Fuller’s second complaint incorporated new allegations

that the defendants maliciously instituted the criminal action against him without probable

cause. The facts alleged in the new complaint are not substantially the same as the original

complaint. The original complaint was not sufficient to give Defendants fair notice that the

second complaint would include a malicious prosecution claim. We agree with the district

court that the saving statute does not bring Fuller’s malicious prosecution claim within the

applicable limitations period. Accordingly, we affirm the district court’s dismissal of the

malicious prosecution claim as time-barred.6

                                   III. CONCLUSION

       The district court’s entry of summary judgment on the § 1983 claims, its dismissal of

the intentional infliction of emotional distress claim against CMHA, and its dismissal of the

malicious prosecution claim are AFFIRMED.




       6
        We also note that Fuller’s malicious prosecution claim against CMHA is also barred
under the Ohio Political Subdivision Tort Liability Act, Ohio Rev. Code § 2744.02(A)(1).
See supra Part II(B).

                                             13
