[Cite as Pankey v. Ohio State Hwy. Patrol, 2020-Ohio-2871.]




MAURICE PANKEY                                        Case No. 2019-00068JD

       Plaintiff                                      Judge Patrick M. McGrath
                                                      Magistrate Scott Sheets
       v.
                                                      ENTRY GRANTING DEFENDANT’S
OHIO STATE HIGHWAY PATROL                             MOTION FOR SUMMARY JUDGMENT

       Defendant

        {¶1} On January 29, 2020, defendant filed a motion for summary judgment
pursuant to Civ.R. 56. The motion for summary judgment is now before the court for a
non-oral hearing pursuant to L.C.C.R. 4.                For the reasons stated below, the court
hereby grants defendant’s motion for summary judgment.

Standard of Review
        {¶2} Civ.R. 56(C) states, in part, as follows:
        Summary judgment shall be rendered forthwith if the pleadings,
        depositions, answers to interrogatories, written admissions, affidavits,
        transcripts of evidence, and written stipulations of fact, if any, timely filed
        in the action, show 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. No
        evidence or stipulation may be considered except as stated in this rule. A
        summary judgment shall not be rendered unless it appears from the
        evidence or stipulation, and only from the evidence or stipulation, 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.
Case No. 2019-00068JD                        -2-                                      ENTRY


See also Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). In Dresher, the
Ohio Supreme Court held, “the moving party bears the initial responsibility of informing
the trial court of the basis for the motion, and identifying those portions of the record
before the trial court which demonstrate the absence of a genuine issue of fact on a
material element of the nonmoving party’s claim.” Id. at 292. A “movant must be able
to point to evidentiary materials of the type listed in 56(C).” Id.
       {¶3} When the moving party has satisfied its initial burden, Civ.R. 56(E) imposes
a reciprocal burden on the nonmoving party. It states:
       Supporting and opposing affidavits shall be made on personal knowledge,
       shall set forth such facts as would be admissible in evidence, and shall
       show affirmatively that the affiant is competent to testify to the matters
       stated in the affidavit. Sworn or certified copies of all papers or parts of
       papers referred to in an affidavit shall be attached to or served with the
       affidavit. The court may permit affidavits to be supplemented or opposed
       by depositions or by further affidavits. When a motion for summary
       judgment is made and supported as provided in this rule, an adverse party
       may not rest upon mere allegations or denials of his pleadings, but the
       party’s response, by affidavit or as otherwise provided in this rule, must
       set forth specific facts showing that there is a genuine issue for trial. If the
       party does not so respond, summary judgment, if appropriate, shall be
       entered against the party. (emphasis added).
In seeking and opposing summary judgment, parties must rely on admissible evidence.
Keaton v. Gordon Biersch Brewery Rest. Group, 10th Dist. Franklin No. 05AP-110,
2006-Ohio-2438, ¶18.
       {¶4} As required, the following facts are stated in a light most favorable to
plaintiff. According to the complaint, plaintiff was forcefully removed from his vehicle by
Patrol Officer, Kyle Doebrich. (Complaint, p. 2.) Plaintiff alleges that he was “treated
Case No. 2019-00068JD                          -3-                                ENTRY


with misconduct” which resulted in him being sent to jail and suffering physical injuries.
Id. Plaintiff alleges that his right finger, face, and shoulder were injured during the
encounter. Id. Plaintiff requests seven million dollars in damages. Id.

Facts
        {¶5} In support of its motion for summary judgment, defendant submitted the
affidavit of Trooper Kyle Doebrich (Doebrich), an Investigation Report, the affidavit of
Shawn George, a Sergeant with the Cincinnati Police Department, and the affidavit of
Christopher Noble, probation office supervisor for the Hamilton County Adult Probation
Department. Defendant argues in its motion for summary judgment that the force used
by Doebrich was reasonable and necessary under the circumstances.
        {¶6} Though plaintiff filed a letter in response to defendant’s motion, plaintiff
submitted no evidence required by Civ.R. 56.         Moreover, plaintiff’s letter does not
contest the factual averments in the affidavits submitted by defendant that relate to the
circumstances of the traffic stop or the actions of Doebrich removing plaintiff from his
vehicle and effectuating plaintiff’s arrest.
        {¶7} On March 7, 2018, Doebrich observed a vehicle traveling 50 miles per hour
in a 25 mile per hour zone.        (Doebrich Aff., ¶ 3-4.)   Doebrich also observed that
the vehicle’s dark tinted windows appeared to exceed the regulations permitted by law.
Id.   Doebrich initiated a traffic stop, and plaintiff’s vehicle came to a stop near
711 Ridgeway Avenue in Cincinnati, Ohio. Id. When Doebrich approached the driver’s
side of plaintiff’s vehicle, he observed plaintiff reach towards the center console of the
vehicle.   Id. at ¶ 5. When plaintiff rolled down the driver’s side window, Doebrich
smelled a strong odor that he believed to be raw marijuana emanating from the vehicle.
Id. Doebrich also observed plaintiff drink a liquid from a plastic container that was
soiled with ash and debris, which Doebrich believed to contain contraband. Id.
        {¶8} Doebrich moved to the driver’s side door and ordered plaintiff to exit the
vehicle so that he could conduct a probable cause search of the vehicle. Id. at ¶ 6.
Case No. 2019-00068JD                        -4-                                      ENTRY


Doebrich then opened the driver’s door and observed marijuana debris on the driver’s
side floor board. Id. Plaintiff did not immediately exit the vehicle. Id. Instead, plaintiff
ignored Doebrich’s order and began reaching his right hand toward the front passenger
seat of the vehicle. Id. Doebrich then ordered plaintiff to “show [him] his hands,” but
plaintiff again ignored Doebrich’s order and continued reaching towards the front
passenger side floor board of the vehicle. Id. Based upon his education, training, and
experience, Doebrich believed that plaintiff could be reaching for a weapon. Id. at ¶ 7.
Doebrich grabbed plaintiff’s left wrist and removed him from the vehicle with the
assistance of a Cincinnati Police Department (CPD) officer. Id. Doebrich maintained
control of plaintiff’s left hand and placed it behind plaintiff’s back. Id. Doebrich also
observed plaintiff resist the CPD officer’s attempt to gain control of his right hand and
the CPD officer’s order to stop resisting. Id. Once plaintiff stopped resisting, Doebrich
was able to handcuff plaintiff and place him in the back of his patrol cruiser. Id.
       {¶9} Plaintiff was argumentative and uncooperative during the search of his
person. Id. at ¶ 8. Plaintiff also refused to allow the officers to take photos of him and
declined medical treatment. Id. Following the arrest, plaintiff was charged with resisting
arrest, illegal use or possession of drug paraphernalia, obstructing official business,
driving under suspension, reckless operation of motor vehicle, a tinted window violation,
and a safety restraint violation. Id. at ¶ 9. Plaintiff was later transported to the Hamilton
County Justice Center. Id. On August 6, 2018, plaintiff was found guilty of resisting
arrest for the incident and was placed on probation. Id. at ¶ 10.

Law and Analysis
       {¶10} Plaintiff brings claims for assault and battery.       “[T]he tort of assault is
defined as the willful threat or attempt to harm or touch another offensively, which threat
or attempt reasonably places the other in fear of such contact.” Smith v. John Deere
Co., 83 Ohio App.3d 398, 406, 614 N.E.2d 1148 (10th Dist.1993). “A person is subject
to liability for battery when he acts intending to cause a harmful or offensive contact,
Case No. 2019-00068JD                      -5-                                   ENTRY


and when a harmful contact results.” Love v. Port Clinton, 37 Ohio St.3d 98, 99, 524
N.E.2d 166 (1988).
      {¶11} “Officers are privileged to commit battery when making a lawful arrest, but
the privilege is negated by the use of excessive force.” Alley v. Bettencourt, 134 Ohio
App.3d 303, 313, 730 N.E.2d 1067 (4th Dist.1999). “The use of force against another
for the purpose of effecting the arrest or recapture of the other, or of maintaining the
actor’s custody of him, is not privileged if the means employed are in excess of those
which the actor reasonably believes to be necessary.” Restatement of the Law 2d,
Torts 236, Section 132 (1965). “[I]f the actor is making or attempting to make an arrest
for a criminal offense he is acting for the protection of the public interest and is
permitted even a greater latitude of discretion than when he acts in self-defense, and he
is not liable unless the means which he uses are clearly excessive.” Id. at 236, Section
132, comment a (1965).
      {¶12} “Ohio courts also recognized that a police officer is justified at common law
to use reasonable force in the course and scope of his law enforcement duties.” State
v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 17. “A peace officer duly empowered is
not liable for injuries inflicted by him in the use of reasonably necessary force to
preserve the peace and maintain order, or to overcome resistance to his authority.” Id.,
quoting State v. Sells, 2d Dist. Fayette No. 243, 1939 Ohio Misc. LEXIS 865, (Nov. 6,
1939). Therefore, “only in cases where excessive force is used, that is, force going
clearly beyond that which is reasonably necessary to make an arrest, can such force be
claimed an assault and battery by the person arrested.” Schweder v. Baratko, 103 Ohio
App. 399, 403, 143 N.E.2d 486 (8th Dist.1957).        “The reasonableness of force is
measured by the facts and circumstances of each particular case, including the severity
of the crime, whether the suspect poses an immediate threat to the safety of the officers
or others, and whether he is actively resisting arrest or attempting to evade arrest by
flight.” Alley at 313, citing Graham v. Connor, 490 U.S. 386, 396 (1989).
Case No. 2019-00068JD                       -6-                                   ENTRY


         {¶13} Based upon the uncontested affidavit testimony put forth by defendant, the
court finds that the force used by Trooper Doebrich was reasonable and necessary
under the circumstances.       It is undisputed that upon making a legal traffic stop,
Doebrich observed plaintiff reaching towards the center console of the vehicle. It is also
undisputed that plaintiff ignored multiple orders from Doebrich to “show [him] his hands.”
Based upon Doebrich’s education, training, and experience, he believed that plaintiff
could be reaching for a weapon. In response, Doebrich grabbed plaintiff’s left wrist to
remove him from the vehicle. It is also uncontested that plaintiff ignored multiple orders
from arresting officers to stop resisting once he was removed from the vehicle.
Accordingly, the court finds that there is no genuine issue of material fact regarding the
reasonableness and necessity of the force Doebrich used to effectuate plaintiff’s arrest.

Conclusion
         {¶14} Based upon the foregoing, the court concludes that there are no genuine
issues of material fact and that defendant is entitled to judgment as a matter of law. As
a result, defendant’s motion for summary judgment is GRANTED and judgment is
hereby rendered in favor of defendant. All previously scheduled events are VACATED.
All pending motions are DENIED as moot. Court costs are assessed against plaintiff.
The clerk shall serve upon all parties notice of this judgment and its date of entry upon
the journal.




                                           PATRICK M. MCGRATH
                                           Judge


Filed March 25, 2020
Sent to S.C. Reporter 5/8/20
