        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2       MacBoyle v. City of Parma, et al.           No. 03-3784
    ELECTRONIC CITATION: 2004 FED App. 0290P (6th Cir.)
                File Name: 04a0290p.06                    Dobeck, OFFICE OF THE LAW DIRECTOR, Parma, Ohio,
                                                          for Appellees.
UNITED STATES COURT OF APPEALS                                                 _________________
               FOR THE SIXTH CIRCUIT                                               OPINION
                 _________________                                             _________________

 TAHLER MACBOYLE ,                 X                        KENNEDY, Circuit Judge. Plaintiff appeals an order
                                    -                     granting summary judgment to Defendants City of Parma and
         Plaintiff-Appellant,                             individual Parma Police Officers1 in this § 1983 action based
                                    -
                                    -  No. 03-3784        on the alleged use of excessive force during the arrest.
            v.                      -                     Plaintiff argues that the district court erred when it upheld the
                                     >                    validity of a release-dismissal agreement in granting the
                                    ,                     motion for summary judgment. Finding the release met the
 CITY OF PARMA, et al.,             -
         Defendants-Appellees. -                          requirements of Newton v. Rumery, 480 U.S. 386 (1987), we
                                                          affirm.
                                  N
       Appeal from the United States District Court                              BACKGROUND
        for the Northern District of Ohio at Akron.
       No. 02-01487—James Gwin, District Judge.              This § 1983 case stems from the arrest of Plaintiff Tahler
                                                          MacBoyle on the night of July 29, 2000. Plaintiff sued
                 Argued: August 5, 2004                   Defendants City of Parma and several Parma Police Officers
                                                          for using excessive force and causing permanent injuries, in
         Decided and Filed: September 1, 2004             carrying out that arrest. Plaintiff claims that the Parma Police
                                                          Officers violated his Fourth and Fourteenth Amendment
   Before: KENNEDY, SUTTON, and COOK, Circuit             rights, and that City of Parma is liable for malicious
                    Judges.                               prosecution, negligence, and failure to train.

                  _________________                         On July 29, 2000, at approximately 11:30 p.m., Parma
                                                          Police Department dispatched Defendants Pinc and Ciryak to
                       COUNSEL                            the home of Kimberly Guder, 6511 State Road, apartment
                                                          204, in Parma, Ohio, to investigate a noise disturbance.
ARGUED: Brent L. English, LAW OFFICE OF BRENT L.          Ms. Guder was hosting a surprise party for her boyfriend,
ENGLISH, Cleveland, Ohio, for Appellant. Michael P.       Paul Kopin, who had recently turned nineteen. Ms. Guder
Maloney, LAW OFFICE, Westlake, Ohio, for Appellees.
ON BRIEF: Brent L. English, LAW OFFICE OF BRENT
                                                              1
L. ENGLISH, Cleveland, Ohio, for Appellant. Michael P.         Patrolmen Edward Pinc, Ken neth C hihil, Da niel Heinz, Daniel
Maloney, LAW OFFICE, Westlake, Ohio, Timothy G.           Ciryak, Christopher Dillenbeck, Victor Beleske, Wayne K resak, and
                                                          Joseph Duganier; and Sergeants James Blair and Gary Kuchta.

                            1
No. 03-3784            MacBoyle v. City of Parma, et al.        3    4       MacBoyle v. City of Parma, et al.               No. 03-3784

invited about thirty people to the party, including Mr. Kopin’s      identification, and, instead, continued with loud vulgarities
mother, Shirley Kopin, and Ms. Kopin’s boyfriend, Plaintiff          and demanded that the officer produce a search warrant.
MacBoyle. Plaintiff was thirty-four at the time of the party.        Plaintiff claims that another guest, Mr. Kopin, and not he,
Ms. Kopin and Plaintiff both attended the party and were at          used profanities and that Defendants confused the two of
the apartment when the police officers arrived. Several guests       them. Defendants claim that at one point during the
had brought alcohol to the party, and the party goers were           discussion, Plaintiff moved toward Defendant Pinc.
consuming alcohol. According to Defendants, when they                Defendant Pinc put his hand up to stop Plaintiff from
arrived at the apartment complex, they observed a female and         approaching and called for backup police officers. One of
male noticing them and running to the second floor of the            those officers, Defendant Chihil, went to the apartment’s
apartment complex. As the Defendants approached the                  balcony and instructed the individuals to return into the
apartment, a male with keys to the apartment2 let the police         apartment for identification purposes. Defendants claim that
officers into Ms. Guder’s apartment. The officers believed           Plaintiff began walking toward the balcony, that they advised
they entered the apartment with consent. At the time of the          him to remain inside the apartment three times, and that he
entry, Plaintiff was on the apartment’s balcony with Ms.             refused to obey their instructions. Plaintiff, on the other hand,
Kopin and Ms. Guder.                                                 claims that, at this point, he decided to call the Mayor’s
                                                                     office. Plaintiff also says that the officers, using more
   Inside the apartment, the police officers observed fifteen to     profanity, instructed him to get off the phone, and when he
twenty individuals. Many of those individuals in the                 refused, one of the officers grabbed the phone and threw it
possession of alcoholic beverages appeared to be underage.           across the room. Plaintiff further says that an officer struck
When the officers requested the name of the apartment’s              him on the head with a flashlight and that the officers
owner, no one responded. When the officers began                     continued their assault on him by throwing him on to a table
requesting identification from the individuals present, no one       and then to the floor, and then running him out of the
responded. During this period, several individuals, including        apartment head first into the apartment’s metal door.
Plaintiff, entered the living room. Defendants claim that
Plaintiff began using vulgarities and demanding to know who             Plaintiff was charged with obstructing official business,
let the officers in. Plaintiff claims that it was the police         resisting arrest and disorderly conduct. Mr. Kopin and two
officers who used vulgarities while questioning the party            other guests were also charged with various offenses. The
goers and that he, Plaintiff, was attempting to diffuse the          cases were consolidated for trial. While his criminal case was
situation by politely asking the police officers why they were       pending, Defendant, on advice of his counsel, entered into a
in the apartment. Plaintiff further claims that he asked the         release-dismissal agreement with all Defendants (the “Release
police officers to leave only when they failed to respond to his     Agreement”). Pursuant to the Release Agreement, Plaintiff
inquiries, and that the police offices declined to leave.            waived all rights to sue Defendants. The City agreed to
                                                                     dismiss the charges of resisting arrest and obstructing official
 Defendant Pinc asked Plaintiff for identification.                  business and to amend the disorderly conduct charge.3
Defendants claim that Plaintiff refused to give any                  Notwithstanding the Release Agreement, Plaintiff filed the


    2                                                                    3
      Apparently, the male was a party guest to whom Ms. Guder had        Plaintiff later pleaded no contest to minor misdemeanor disorderly
given the keys so he could get back inside the apartment.            conduct.
No. 03-3784            MacBoyle v. City of Parma, et al.          5    6      MacBoyle v. City of Parma, et al.         No. 03-3784

instant action. Defendants argued, and the district court              seeking such an agreement, as well as the degree to which
found, that the Release Agreement prevents Plaintiff from              enforcing the agreement would serve the public interest.’”
bringing this action.                                                  MacBoyle v. City of Parma, No. 1:02-CV-1487, slip op. at 7
                                                                       (N.D. Ohio Mar. 26, 2002) (citing Coughlen, 5 F.3d at 974).
                          ANALYSIS
                                                                         The district court conducted the three-factor Rumery
  The Supreme Court has upheld the validity of release-                analysis and concluded that the Release Agreement should be
dismissal agreements whereby a criminal defendant releases             upheld.
his right to file a civil rights action in return for a prosecutor’s
dismissal of pending criminal charges, as long as the                     With respect to the voluntariness prong, the district court
agreement meets certain criteria. See generally Town of                stated:
Newton v. Rumery, 480 U.S. 386 (1987). The enforcement of
such an agreement is appropriate if a court decides that (1) it            Plaintiff MacBoyle was thirty-four years old and
was entered into voluntarily; (2) there is no evidence of                  represented by an attorney when he signed the Release
prosecutorial misconduct; and (3) the enforcement furthers                 Agreement. He is a college graduate who has been
the public interest. Id. at 398. The burden of proof in this               employed since 1989 and takes part in continuing
analysis “falls upon the party in the § 1983 action who seeks              professional education seminars. Plaintiff MacBoyle was
to invoke the agreement as a defense.” Coughlen v. Coots,                  not incarcerated when he signed the Release Agreement,
5 F.3d 970, 974 (6th Cir. 1993). We derived the rationale for              and there is no evidence that MacBoyle did not have
this allocation of the burden of proof from Justice O’Connor’s             ample time to consider the agreement before signing it.
concurrence in Rumery:                                                     In fact, Plaintiff MacBoyle claims that he signed the
                                                                           release out of concern for Shirley Kopin, Paul Kopin and
  Permitting such releases may tempt public officials to                   Kim Guder, who also had all the criminal charges
  bring frivolous criminal charges in order to deter                       besides minor misdemeanor criminal conduct dismissed
  meritorious civil complaints. The risk and expense of a                  as a result of Plaintiff’s and their releases. Plaintiff
  criminal trial can easily intimidate even an innocent                    MacBoyle’s signing of the Release Agreement was
  person whose civil and constitutional rights have been                   undeniably voluntary.
  violated. The coercive power of criminal process may be
  twisted to serve the end of suppressing complaints                   MacBoyle v. City of Parma, No. 1:02-CV-1487, slip op. at 7-
  against official abuse, to the detriment not only of the             8 (N.D. Ohio Mar. 26, 2002). Plaintiff presents a number of
  victim of such abuse, but also of society as a whole.                objections to this conclusion. Because these objections lack
                                                                       any merit, we conclude, without unnecessary discussion, that
Rumery, 480 U.S. at 400 (O’Connor, J., concurring in part)             the district court properly found that Plaintiff voluntarily
(quoted in Coughlen, 5 F.3d at 973). As the district court             signed the Release Agreement. We emphasize that the fact
correctly noted, a court may not, in conducting its Rumery             that Plaintiff signed the release out of concern for the others
analysis, “prejudge the plaintiff’s § 1983 claim and will look         charged in the event does not affect the voluntariness of his
for ‘the existence of substantial evidence of police                   act.
misconduct in a particular case . . . since [such evidence]
could be probative of the motives of the prosecutor for
No. 03-3784           MacBoyle v. City of Parma, et al.          7   8      MacBoyle v. City of Parma, et al.           No. 03-3784

  With respect to the prosecutorial misconduct prong, the            prosecution witnesses does not amount to ‘substantial
district court stated:                                               evidence’ of police misconduct such that an inference of
                                                                     prosecutorial misconduct under Coughlen arises.” Burke v.
  . . . Plaintiff MacBoyle offers no real evidence of                Johnson, 167 F.3d 276, 286 (6th Cir. 1999). If the
  prosecutorial misconduct. Plaintiff MacBoyle does not              discrepancy among the prosecution witnesses is not sufficient
  claim that any of the charges against him were in any              to constitute prosecutorial misconduct, then certainly a
  way trumped up. In fact, given the police officers [sic]           discrepancy between the prosecution witnesses and Plaintiff’s
  version of the incident, the criminal charges seem                 witnesses is not enough to rise to the level of prosecutorial
  reasonable. MacBoyle claims that the prosecutor                    misconduct. Accordingly, we find that the district court
  changed his mind from dismissing all the charges to                properly found that there was no prosecutorial misconduct.
  wanting the Plaintiff and the other indicted party goers to
  plead to one charge of minor misdemeanor disorderly                  With respect to the public interest prong, the district court
  conduct. Plaintiff MacBoyle also says that the                     found that:
  prosecutor should not have conditioned the dismissal on
  all the indicted party goers signing the release. This                 . . . enforcing the Release Agreement serves public
  Court finds that such evidence, even if true, does not rise            interest in that such agreements enable parties to resolve
  to the level of prosecutorial misconduct. There is no rule             issues ami[c]ably themselves, weed out unmeritorious
  against a prosecutor changing his mind. Plaintiff                      claims and charges, and conserve[] precious judicial
  MacBoyle does not claim that he accepted an earlier                    resources. The evidence shows that Plaintiff MacBoyle
  offer whereby all claims were dismissed, and then the                  agreed to the Release Agreement voluntarily without any
  prosecutor changed his mind and forced him to accept                   prosecutorial misconduct. Public interest mandates
  another offer. Rather, Plaintiff claims that the prosecutor            holding parties to the agreements they enter into on their
  contemplating dismissing all charges, thought better of                own volition. Nullifying the Release Agreements would
  it, and changed his mind. Such activity is not                         provide a disincentive to prosecutors from agreeing to
  misconduct. Linking the agreements was also not                        release-dismissal agreements in the future. Therefore the
  misconduct. All the charges against the party goers were               public interest is served by enforcing the Release
  reasonable in light of the police officers [sic] description           Agreement.
  of the incident. MacBoyle was free to not sign the
  Release Agreement if he chose not to.                              MacBoyle v. City of Parma, No. 1:02-CV-1487, slip op. at 8-
                                                                     9 ( N.D. Ohio Mar. 26, 2002). The district court’s recital of
MacBoyle v. City of Parma, No. 1:02-CV-1487, slip op. at 8           factors would apply to every release-dismissal agreement. It
(N.D. Ohio Mar. 26, 2002). The district court’s decision on          is true of all such agreements that they “enable parties to
this point was, thus, a legal one. Plaintiff has presented us        resolve issues ami[c]ably themselves, weed out unmeritorious
with no legal authority to conclude that what the prosecutor         claims and charges, and conserve[] precious judicial
did in this case amounted to misconduct. Plaintiff simply            resources.” It is also true that nullifying such agreements
contends that the presence of conflicting testimony amounts          “would provide a disincentive to prosecutors from agreeing”
to “substantial evidence” of prosecutorial misconduct under          to them in the future. However, in the absence of a
Coughlen. However, we have already held that the mere                determination by the district court that Plaintiff’s claims were
“existence of discrepancies among the accounts of                    “unmeritorious,” a finding that the Release Agreement in this
No. 03-3784              MacBoyle v. City of Parma, et al.             9    10       MacBoyle v. City of Parma, et al.                 No. 03-3784

case would not adversely affect relevant public interests                   under the following circumstances: (1) the failure of a state
requires some further analysis.                                             trial court to reach a decision on the merits of a criminal case
                                                                            (7-1 vote to acquit)5; (2) the conflicting and adversarial
   As we noted in an earlier opinion, this element is the “least            positions taken by the parties on the proof; (3) the connection
well-defined element of a Rumery analysis.” Coughlen,                       between the civil rights action and the criminal charges;
5 F.3d at 975. We explained that “this standard can be                      (4) the lack of prosecutorial overreaching; (5) the nature of
satisfied if the prosecutor demonstrates that obtaining the                 charges brought. Our case is very similar with respect to
release was motivated by an independent, legitimate criminal                factors (2) through (5). We do have an absence of an
justice objective” and that this “does not appear to create a               apparent, albeit legally nonexistent, acquittal. However, this
particularly difficult hurdle for the prosecutor to clear.” Id.             difference weakens the position of Plaintiff in the instant case.
(noting that “the reason proffered by the prosecutor for the                The Hill plaintiff was likely to be believed and thus acquitted
release-dismissal agreement in this case–‘to aid in the                     in a retrial, and nevertheless lost in his attempt to void the
disposition of its heavy case load’–would probably suffice                  release-dismissal agreement. Plaintiff in the instant case has
under ordinary circumstances.”) In Coughlen, we also                        merely asserted his innocence. The record reflects that the
provided a non-exhaustive list of circumstances in which                    testimony of the parties was in direct conflict as to what had
“[r]elease dismissal agreements [] can be legitimate criminal               indeed occurred. Accordingly, we find that Plaintiff in this
justice tools . . .” Id. (offering as examples, situations where            case has an even weaker argument than the Hill plaintiff and
(1) “police misconduct is alleged, but the prosecutor is                    we make an independent determination that enforcing the
genuinely unable to ascertain the truth surrounding the                     agreement would not adversely affect the relevant public
allegation”; (2) “the cost of prosecution would outweigh the                interests.
benefit accruing to the public from a conviction; [3] the
strength of evidence of criminal conduct is doubtful even                                             CONCLUSION
though charges were filed in good faith . . .”; (4) “criminal
charges are not the product of prosecutorial misconduct and                   For the reasons stated above, we affirm the district court’s
both sides benefit substantially from a balanced settlement in              order granting summary judgment to all Defendants.
the sense that both avoid exposure to potential liabilities and
expenses.”)
  The district court’s failure to make adequate findings of
fact, however, does not warrant a remand. We have, in the
past, determined whether the public interest prong was
satisfied even in the absence of a district court finding when
there was sufficient evidence in the record to do so. Hill v.
Cleveland, 12 F.3d 575, 579 (6th Cir. 1993).4 We will do so
in this case. In Hill, a panel made an independent finding
                                                                                 5
                                                                                  The trial court declared a mistrial in the first trial because it was
                                                                            discovered that a police report had been improperly placed in the jury
    4
                                                                            room. Apparently, there either was an eight-person jury or the alternate
     W e continue to re mind the district courts to make such findings to   jurors had not been excused when the mistrial was ordered. In any case,
make it easier for this Court to evaluate the district court’s decision.    the release-dismissal agreem ent was signed in anticipation o f a retrial.
