[Cite as Cooper v. Youngstown, 2016-Ohio-7184.]
                          STATE OF OHIO, MAHONING COUNTY

                                IN THE COURT OF APPEALS

                                      SEVENTH DISTRICT


J.A. COOPER                      )                CASE NO. 15 MA 0029
                                 )
      PLAINTIFF-APPELLANT        )
                                 )
VS.                              )                OPINION
                                 )
CITY OF YOUNGSTOWN, OHIO, et al. )
                                 )
      DEFENDANTS-APPELLEES       )

CHARACTER OF PROCEEDINGS:                         Civil Appeal from the Court of Common
                                                  Pleas of Mahoning County, Ohio
                                                  Case No. 14 CV 1672

JUDGMENT:                                         Affirmed.

APPEARANCES:

For Plaintiff-Appellant:                          J. A. Cooper, Pro se
                                                  Inmate No. A652-603
                                                  Belmont Correctional Institution
                                                  P.O. Box 540
                                                  St. Clairsville, Ohio 43950

For Defendants-Appellees:                         Atty. Neil D. Schor
                                                  Atty. Matthew M. Ries
                                                  Harrington, Hoppe & Mitchell, Ltd.
                                                  26 Market Street, Suite 1200
                                                  P.O. Box 6077
                                                  Youngstown, Ohio 44501-6077


JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                                  Dated: September 30, 2016
[Cite as Cooper v. Youngstown, 2016-Ohio-7184.]
WAITE, J.



        {¶1}    Appellant [Jesse] J.A. Cooper appeals the Mahoning County Common

Pleas Court’s January 30, 2015 decision to grant summary judgment to the City of

Youngstown, City of Youngstown Director of Public Safety (“YDPS”), and City of

Youngstown Police Department (“YPD”), collectively referred to as (“Appellees”).

Appellant argues that summary judgment was improper, here.              For the reasons

provided, Appellant’s arguments are without merit and the judgment of the trial court

is affirmed.

                                Factual and Procedural History

        {¶2}    On December 17, 2012, Officer Brad Ditullio (“officer”) observed

Appellant driving with expired registration tags. He attempted to initiate a traffic stop;

however, after he activated his emergency lights, Appellant drove off of the road and

through several residential backyards. At one point, the officer exited his cruiser,

stood in front of Appellant’s car and ordered him to stop. After initially stopping,

Appellant instead accelerated and drove towards the officer and struck him. The

officer became stuck on Appellant’s side mirror and was dragged by Appellant’s

vehicle as he continued to flee. The officer fired his weapon three times into the

passenger window. Two bullets struck Appellant in the abdomen. Lt. Brian Butler of

Internal Affairs conducted an investigation of the officer’s actions. His investigation

confirmed the officer’s version of the facts. Accordingly, no disciplinary actions were

taken against the officer.
                                                                                      -2-

       {¶3}   On July 24, 2013, Appellant pleaded guilty to one count of felonious

assault, a felony of the second degree in violation of R.C. 2903.11(A)(2)(D)(1) and

one count of failure to comply with order or signal of a police officer, a felony of the

third degree in violation of R.C. 2921.33(B)(c)(5)(a)(ii). Appellant filed a motion to

withdraw his plea, which was denied by the trial court. Appellant was sentenced to

five years of incarceration.   Appellant did not appeal his conviction or sentence.

Appellant is currently incarcerated at the Belmont County Correctional Institution.

       {¶4}   On July 8, 2014, Appellant filed a complaint against Appellees claiming

excessive force, but did not specify whether his claim was based on state or federal

law. On December 16, 2014, Appellees filed a motion for summary judgment arguing

that Appellant was not entitled to judgment based on the following grounds: (1)

Pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383

(1994), Appellant’s convictions bar his claim; (2) Appellant failed to articulate an

actionable claim; (3) Appellees were entitled to political subdivision immunity; and, (4)

YDPS and YPD are not sui juris; legal entities. On January 30, 2015, the trial court

granted Appellees’ motion. Appellant timely appealed but failed to serve notice on

Appellees.

                                 Non-Conforming Brief

       {¶5}   In his “brief,” Appellant has failed to provide a proper statement of his

assignments of error, a summary of the issues presented, a statement of the case or

a statement of the facts, and his unsupported arguments are largely incoherent and

incomprehensible. As such, Appellant entirely fails to comply with App.R. 4(A)(4)-(7).
                                                                                     -3-

      {¶6}   Appellant has also filed a document he calls a reply brief; however, it is

unclear to which assignment of error his arguments apply, as there are no headings.

Appellant cites to several procedural rules, however, none of the cited rules appear to

be relevant and he has not explained how they may apply to his case. Although

Appellant’s failure to abide by the appellate rules amounts to grounds for dismissal, in

the interest of fairness and justice, we will attempt to address his arguments to the

extent possible.

      {¶7}   As Appellant’s assignments of error are lengthy and incoherent, a

synopsis of Appellant’s arguments serves to replace his specific assignments.

                               First Assignment of Error

      {¶8}   In his first assignment of error, Appellant appears to argue that the trial

court improperly granted summary judgment in Appellees’ favor because the

evidence of record supports a finding that excessive force was used against him.

      {¶9}   Appellant argues that the officer did not seek permission to engage in a

car chase and there is no evidence, other than the officer’s “hearsay” statement, that

the use of force was necessary. In so arguing, Appellant appears to contest his plea,

conviction, and sentence; however, he failed to file any appeal regarding those

issues.   This appeal solely relates to the trial court’s January 3, 2015 grant of

Appellees’ motion for summary judgment, not Appellant’s criminal conviction and

sentence.

      {¶10} Appellees contend that the trial court properly granted summary

judgment in their favor because Appellant’s conviction bars his excessive force claim.
                                                                                        -4-

Citing Heck, supra, Appellees argue that excessive force is an affirmative defense to

Appellant’s criminal conviction(s). It does not form the basis for liability, standing

alone. In order to recover damages for actions that would render a conviction or

sentence invalid, Appellees argue that the plaintiff must be able to show that the

conviction or sentence has been reversed on appeal, expunged by executive order,

declared invalid by an authorized state tribunal, or called into question by a federal

court’s issuance of a writ of habeas corpus. As the incident giving rise to Appellant’s

alleged excessive force claim gave rise to Appellant’s convictions and sentence,

Appellant is required to prove his convictions and sentence are invalid. However,

Appellant declined to directly appeal his convictions and sentence. Hence, Appellees

contend that he is barred from raising his claims for excessive force.

       {¶11} Appellees next argue that in order to successfully assert an excessive

force claim, a plaintiff must show that the incident was the result of an illegal policy or

custom. Appellant failed to provide any evidence to demonstrate that the incident

occurred as the result of an illegal YPD policy or custom.

       {¶12} Appellees also argue that they are entitled to political subdivision

immunity. Appellees note that it is unclear on what legal basis Appellant is framing

his claims. It appears that at least part of his claims are based on a federal code, 42

U.S.C. 1983 (“Section 1983”). To the extent that Appellant filed any state claims,

Appellees argue that they are immune pursuant to R.C. 2744.02, because the City of

Youngstown is a political subdivision.
                                                                                       -5-

       {¶13} Finally, Appellees contend that summary judgment was correctly

granted because YDPS and YPD are not sui juris. In order to successfully raise his

claims, Appellant was required to show that the named parties have the legal

capacity to be sued.     Appellees argue that the entities Appellant names in his

complaint are not legally distinct from the City of Youngstown, thus are not the proper

parties to be sued.

       {¶14} The basis of Appellant’s claims are not apparent from his complaint.

Appellees and the trial court both assumed Appellant’s claims arose from Section

1983. Pursuant to Section 1983:

       Every person who, under color of any statute, ordinance, regulation,

       custom, or usage, of any State or Territory or the District of Colombia,

       subjects, or causes to be subjected, any citizen of the United States or

       other person within the jurisdiction thereof to the deprivation of any

       rights, privileges, or immunities secured by the Constitution and laws,

       shall be liable to the party injured in an action at law, suit in equity, or

       other proper proceeding for redress * * *.

       {¶15} The trial court granted Appellees’ motion for summary judgment based

on the following grounds: (1) Appellant’s conviction arising from the incident that

gave rise also to his excessive force claim bars his recovery; (2) he failed to

demonstrate that the alleged use of excessive force occurred as the result of an

illegal policy or custom within the municipality; (3) to the extent that Appellant’s claim
                                                                                     -6-

is rooted in state law, Appellees were entitled to immunity pursuant to R.C. 2744.02;

and, (4) YDPS and YPD are not legal entities with the capacity to be sued.

       {¶16} An appellate court conducts a de novo review of a trial court's summary

judgment decision. Campbell Oil Co. v. Shepperson, 7th Dist. No. 05 CA 817, 2006-

Ohio-1763, ¶ 8. Viewing the facts in a light most favorable to the nonmoving party,

the trial court must find that: (1) there is no genuine issue of material fact remaining

for litigation, (2) the moving party is entitled to judgment as a matter of law, and (3)

that reasonable minds can come to only one conclusion, which is adverse to the non-

moving party. Id. at ¶ 8, citing Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327,

364 N.E.2d 267 (1977).

       {¶17} The moving party bears the initial burden “of showing that no genuine

issue exists as to any material fact falls upon the moving party in requesting a

summary judgment.”      Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d 264

(1996), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375

N.E.2d 46 (1978). The burden then shifts to the non-moving party, who in return

must set forth specific facts showing that a genuine issue of fact exists and that a

reasonable factfinder could rule in that party's favor. Campbell Oil Co., supra, at ¶ 9,

citing Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023

(8th Dist.1997).

       {¶18} It is questionable whether Appellant asserts an articulable claim in his

complaint. While Appellees and the trial court have determined that his claim was

rooted in Section 1983, Appellant does not cite to Section 1983 or any other law.
                                                                                     -7-

Appellant also does not refer to “excessive force.” However, it can be gleaned from

Appellant’s complaint that he is claiming that the officer used excessive force when

he fired his gun into Appellant’s passenger window.

       {¶19} Although not addressed by the trial court, we note that Appellant

provided no evidence whatsoever on summary judgment.               In his response to

Appellee’s motion for summary judgment, he again failed to introduce any evidence

to support his claims. Thus, Appellant failed at even a bare bones attempt to meet

his reciprocal burden pursuant to Civ.R. 56(C).

       {¶20} As to the merits of the trial court’s decision, although some aspects of

Heck, supra, have been called into question, it remains valid for the proposition that:

       In order to recover damages for an allegedly unconstitutional conviction

       or for harm caused by actions whose unlawfulness would render a

       conviction or sentence invalid, a prisoner must show that the conviction

       or sentence has been reversed on direct appeal, expunged by

       executive order declared invalid by a state tribunal authorized to make

       such determination or called into question by a federal court's issuance

       of a writ of habeas corpus.

Harman v. Chance, 7th Dist. No. 99 CA 119, 2000 WL 1726520, *4, (Nov. 14, 2000),

quoting Heck, supra, at 486-487.

       {¶21} Although Appellant appears to be seeking damages rather than his

release from confinement, Appellant’s claims arise out of the incident that caused him

to be convicted of felonious assault and failure to comply. While alluding to a “car
                                                                                    -8-

chase,” where presumably the officer would require permission from some higher

authority before undertaking, Appellant was shot after the chase was over, while the

officer was approaching Appellant’s vehicle on foot. Appellant deliberately struck the

officer and then dragged him some distance while Appellant was attempting to

continue to flee in his vehicle. Hence, Appellant was ultimately convicted of felonious

assault (using his auto) on the officer as well as failure to comply with the officer’s

orders to stop. Appellant was shot only as a means to get him to end the felonious

assault and get him to obey at least one lawful order. Because only the officer’s

shots caused Appellant to cease his unlawful actions, the officer’s use of force,

whether appropriate or excessive, were part and parcel of Appellant’s criminal

convictions. Had Appellant gone to trial instead of enter a plea, he could contest the

facts as presented above and contest when and under what conditions the officer

was required to use force. He did not, instead agreeing to enter a guilty plea and not

contest any factual matters surrounding his conviction.

      {¶22} Now, Appellant appears to argue that all of the officer’s actions, from

the beginning of the chase up to the shooting, were all improper. These factual

issues, however, were put to rest at the time of Appellant’s plea. Appellant failed to

appeal his conviction and sentence, so any current argument that these should be

invalidated has long since been waived.        Appellant has likewise presented no

evidence that his conviction and sentence has at any time been invalidated. The

Heck court held that:
                                                                                     -9-

         [I]n order to recover damages for allegedly unconstitutional conviction

         or imprisonment, or for other harm caused by actions whose

         unlawfulness would render a conviction or sentence invalid, a § 1983

         plaintiff must prove that the conviction or sentence has been reversed

         on direct appeal, expunged by executive order, declared invalid by a

         state tribunal authorized to make such determination[.] * * * A claim for

         damages bearing that relationship to a conviction or sentence that has

         not been so invalidated is not cognizable under § 1983.        (Footnote

         omitted.) (Emphasis sic.)

Id. at 486-487. Appellant seeks to “reform” the facts underlying his conviction in this

damages action. His valid conviction renders that attempt invalid. Thus, pursuant to

Heck, his claim is barred.

         {¶23} Additionally, Appellant failed to demonstrate that the alleged excessive

force was the product of a YPD policy or custom. “In order to find a local government

liable under Section 1983, the claimant must show that a policy or custom of the

governmental entity was the driving force behind the constitutional violation.” Lee v.

Cleveland, 8th Dist. No. 80740, 151 Ohio App.3d 581, 588-89, 2003-Ohio-742, 784

N.E.2d 1218, 1224, ¶ 30, citing Roe v. Franklin Cty., 109 Ohio App.3d 772, 778, 673

N.E.2d 172 (10th Dist.1996). As Appellant has not shown that the alleged excessive

force was the result of YPD policy, he cannot successfully assert a Section 1983

claim.
                                                                                          -10-

       {¶24} As regards to any state claim, Appellees are also shielded by political

subdivision immunity. In determining whether a political subdivision is entitled to

immunity, a three-tiered analysis is employed.          Bowman v. Canfield, 7th Dist.

Mahoning No. 13 MA 144, 2015-Ohio-1323, ¶ 6, citing Ziegler v. Mahoning County

Sheriff's Department, 137 Ohio App.3d 831, 835, 739 N.E.2d 1237 (7th Dist.2000);

Abdalla v. Olexia, 7th Dist. No. 97-JE-43, 1999 WL 803592 (Oct. 6, 1999). The

analysis begins with a presumption, “pursuant to R.C. 2744.02(A)(1), that a political

subdivision is generally immune from liability for its acts and the acts and actions of

its employees unless one of the exceptions enumerated within R.C. 2744.02(B)

apply.” Bowman at ¶ 6. The exceptions include: (1) the negligent operation of a

motor vehicle by an employee who is acting within the subdivision's scope of

employment and authority; (2) an employee's negligent performance of acts with

respect to the subdivision's proprietary functions; (3) the negligent failure to repair

public roads and negligent failure to remove obstructions from public roads; (4)

negligence of employees that occurs within or on the grounds of, and is due to

physical defects within or on the grounds of, buildings that are used in connection

with the performance of a governmental function; and, (5) when a section of the

revised code expressly imposes civil liability on the subdivision. Id. at ¶ 7. If any of

the five exceptions applies, the political subdivision is stripped of its immunity. Id.

       {¶25} The City of Youngstown and its departments, as a political subdivision,

is entitled to a presumption of immunity. At no time does Appellant suggest that any

of the law’s exceptions apply to strip Appellees of their immunity.           As it is not
                                                                                       -11-

apparent on the record that any of the exceptions enumerated within R.C. 2744.02(B)

apply to Appellant’s claims, Appellees maintain their immunity. Appellant appears to

allege some intentional action on the part of the officer, but the sovereign immunity

statute expressly protects political subdivisions from suit when that suit involves

intentional bad acts by employees. See Maggio v. Warren, 11th Dist. No. 2006-T-

0028, 2006-Ohio-6880 (intentional tort claims, are, by the express terms of the

statute, not subject to any exception under R.C. 2744.02(B)); Lee, supra (there is no

exception that applies to a claim that police officers effectuated an arrest through the

intentional use of excessive force); Wilson v. Stark Cty. Dept. of Human Services, 70

Ohio St.3d 450, 452, 639 N.E.2d 105 (1994) (“[t]here are no exceptions to immunity

for the intentional torts of fraud and intentional infliction of emotional distress”). Thus,

it is clear that to the extent Appellant raises any state claims, the trial court correctly

determined that Appellees are immune pursuant to R.C. 2744.02.

       {¶26} Finally, the trial court granted summary judgment to two of the named

defendants on the grounds that neither YDPS nor YPD are entities with the legal

capacity to be sued.      A plaintiff must demonstrate that the named parties in a

complaint have the legal capacity to be sued. Richardson v. Grady, 8th Dist. Nos.

77381, 77403, 2000 WL 1847588 (Dec. 18, 2000.) A city police department is not sui

juris; the real party in interest is the city itself. Id. at 2. As YDPS and YPD lack the

legal capacity to be sued, the trial court properly granted summary judgment in favor

of these Appellees on this basis, as well.
                                                                                     -12-

       {¶27} Accordingly, the trial court’s decision to grant Appellees’ request for

summary judgment as to Appellant’s excessive force claims was correct. Appellant’s

argument to the contrary is without merit and his first assignment of error is

overruled.

                              Second Assignment of Error

       {¶28} In his second assignment of error, Appellant appears to argue that the

trial court improperly relied on hearsay evidence.

       {¶29} Appellant argues that Officer Ditullio’s statements to the prosecutor are

hearsay. According to Appellant, the officer made statements that supported his

decision to fire his weapon. Appellant appears to argue that these statements were

made only to the prosecutor and the record contains no evidence in support of Officer

Ditullio’s statements.

       {¶30} Appellees respond by arguing that there is nothing on the record to

suggest that the court relied on hearsay evidence. Even so, Appellees contend that

statements given by Officer Ditullio and additionally by Lt. Butler were not hearsay.

       {¶31} The statements at issue are contained within affidavits that were

prepared during an internal investigation after the incident to determine if the officer’s

actions were proper. Although the affidavits were attached to Appellees’ motion for

summary judgment, there is nothing to suggest that the trial court relied on either

affidavit in granting Appellees’ motion for summary judgment. Even so, affidavits are

proper evidence pursuant to Civ.R. 56(C). U.S. Bank, N.A. v. Martin, 7th Dist. No. 13
                                                                                  -13-

MA 107, 2014-Ohio-3784, ¶ 26. Accordingly, Appellant’s second assignment of error

is without merit and is overruled.

                                Third Assignment of Error

       {¶32} In his final assignment of error, Appellant appears to contest his

sentence, which, as earlier addressed, is not at issue nor appropriately the subject of

this appeal.   He also repeats the rambling arguments made under his first two

assignments of error. Appellees did not respond to these arguments, apparently

because they are irrelevant in this matter. We would agree, and also note that any

relevant arguments made by Appellant in this assignment have already been

addressed.

                                       Conclusion

       {¶33} In his non-conforming brief, Appellant generally contends that the trial

court erred in granting summary judgment in favor of Appellees.         As the record

supports the trial court’s decision, Appellant’s arguments are without merit and the

judgment of the trial court is affirmed.


Donofrio, P.J., concurs.

DeGenaro, J., concurs.
