Roger Dean Gillispie v. Miami Twp., Ohio

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 2, 2025
• Docket: 23-4001
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0226n.06

Nos. 23-3999/4000/4001

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT May 02, 2025 KELLY L. STEPHENS, Clerk ROGER DEAN GILLISPIE, ) ) Plaintiff-Appellee/Cross-Appellant (23-3999/4001), ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE ) SOUTHERN DISTRICT OF MIAMI TOWNSHIP, OHIO, ) OHIO Defendant, ) ) MIAMI TOWNSHIP BOARD OF TRUSTEES, OPINION ) Intervenor-Appellant/Cross-Appellee (23-3999/4000/4001), ) ) MATTHEW SCOTT MOORE, ) ) Defendant-Appellee/Cross-Appellant (23-3999/4000). ) )

Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.

CLAY, Circuit Judge. Plaintiff Roger Dean Gillispie (“Gillispie”) was wrongfully

convicted of sexual assault and imprisoned for decades. After his release, he filed this 42 U.S.C.

§ 1983 action against Defendant Matthew Scott Moore (“Detective Moore”) and Miami Township,

Ohio (“Miami Township”). The case then proceeded to trial, where the jury found in favor of

Gillispie and awarded him $45 million in damages. The district court later determined that Miami

Township was liable to indemnify Detective Moore for the full amount of damages. Gillispie,

Detective Moore, and Miami Township each appeal portions of the district court’s determinations.

For the reasons set forth below, we AFFIRM the district court in full. Nos. 23-3999/4000/4001, Gillispie v. Miami Twp., et al.

I. BACKGROUND

A. Factual History

On August 20, 1988, an individual abducted two sisters, B.W. and C.W., at gunpoint in the

parking lot of a Best Products store in Miami Township, Ohio and forced the sisters to perform

oral sex on him. Another woman, S.C., saw news reports about the attack and reported that a

similar crime was perpetrated against her two weeks earlier in a different county.

The Miami Township Police Department (“MTPD”) began to investigate. The lead

detective on the case was Gary Bailey, who was supervised by Sergeant Steve Fritz. Detective

Bailey proceeded to visit the crime scene, speak with the victims, develop a composite sketch of

the alleged perpetrator, and investigate over twenty subjects. Yet as time passed, “the good leads

ran out,” and the investigation went cold.

At the time of the attacks, Gillispie was working at General Motors. He was later fired

from the company. Gillispie’s supervisor, Richard Wolfe, then suggested to police that Gillispie

was a possible subject. Wolfe previously worked as an officer at the Miami Township Police

Department (“MTPD”), and for this reason, investigating officers took his accusation seriously.

After meeting with Wolfe, MTPD Chief Thomas Angel instructed Sergeant Fritz and Detective

Bailey to investigate Gillispie. Sergeant Fritz and Bailey ultimately eliminated Gillispie as a

suspect, as they found that Gillispie did not meet the victims’ descriptions and had no criminal

history. However, the reports memorializing these findings were never produced to Gillispie’s

defense counsel at trial. Bailey and Fritz later left their positions in the MTPD in 1989 and 1990,

respectively.

In 1990, Chief Angel placed a new officer, Detective Moore, on the case. Detective Moore

then created a photo lineup and worked with the three victims to identify the perpetrator. All three

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identified Gillispie as their attacker. Gillispie’s brief identifies numerous alleged flaws in

Detective Moore’s photo array and later investigation, including: (1) using a photo of Gillispie that

was larger and had a different background color from the other photos; (2) using filler photos of

police officers with darker skin than Gillispie and whom the victims may have seen at the police

station; (3) telling the victims, before showing them the photos, that Detective Moore had

identified a possible suspect; (4) pressuring one of the victims by telling her she needed to be 100

percent positive; (5) failing to adequately record and memorialize the identification procedures;

(6) telling B.W. and C.W. that they selected the same individual, which may have increased each

of the victims’ confidence in their selection while testifying at trial; and (7) incorrectly telling

B.W. and C.W. before a pretrial hearing that Detective Moore believed that Gillispie had changed

his appearance by dyeing and cutting his hair. Gillispie avers that none of this exculpatory

evidence was handed over to his defense counsel at trial.

On September 5, 1990, the MTPD arrested Gillispie. Gillispie was convicted at trial in

February 1991 but was subsequently granted a new trial. In June 1991, Gillispie was once again

convicted, with the jury finding him responsible for the attacks on all three victims. Gillispie was

then incarcerated for more than two decades, starting his term of imprisonment on September 5,

1990, and remaining in prison until December 22, 2011. In 2011, the U.S. District Court for the

Southern District of Ohio granted Gillispie a writ of habeas corpus, finding that the exculpatory

reports produced by Sergeant Fritz and Detective Bailey were never produced to Gillispie’s trial

counsel. Gillispie v. Timmerman-Cooper, 835 F. Supp. 2d 482, 487–88, 509 (S.D. Ohio 2011). An

Ohio state court then vacated Gillispie’s conviction and ordered a new trial. Subsequently, the

Montgomery County Court of Common Pleas dismissed all charges against Gillispie with

prejudice in 2017 and later declared him wrongfully imprisoned in 2021.

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B. Procedural History

On December 13, 2013, Gillispie filed a complaint in the U.S. District Court for the

Southern District of Ohio regarding his wrongful imprisonment. He later filed an amended

complaint, in which he alleged a series of claims against numerous defendants. Relevant to this

appeal are the following claims: (1) a § 1983 claim for unconstitutional suppression of exculpatory

material against Detective Moore and Miami Township; (2) a § 1983 claim for unconstitutional

suggestive identification against Detective Moore and Miami Township; (3) a § 1983 claim for

fabricated evidence against Detective Moore and Miami Township; (4) a § 1983 claim for

malicious prosecution against Detective Moore and Miami Township; (5) a § 1983 claim for

destruction of exculpatory evidence against Detective Moore and Miami Township; (6) an Ohio

state law claim for malicious prosecution against Detective Moore and Miami Township; (7) an

Ohio state law claim for infliction of emotional distress against Detective Moore and Miami

Township; (8) an Ohio state law claim for spoliation of evidence against Detective Moore and

Miami Township; and (9) an Ohio state law claim for indemnification against Miami Township.

Both Detective Moore and Miami Township subsequently moved for summary judgment.

The district court granted Detective Moore’s motion in part, permitting Gillispie’s § 1983 claims

to proceed to trial but dismissing the Ohio state law claims for malicious prosecution, infliction of

emotional distress, and spoliation of evidence. The district court also dismissed all claims against

the Township, dismissing the indemnification claim without prejudice and dismissing the rest of

the claims with prejudice. Gillispie then voluntarily dismissed three of his § 1983 claims against

Detective Moore (fabricated evidence, malicious prosecution, and destruction of evidence) via two

stipulations. Accordingly, the case at trial focused on the two remaining § 1983 claims against

Detective Moore: suppression of exculpatory evidence and suggestive identification.

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Prior to trial, Miami Township moved to intervene. The district court granted the motion,

noting that the Township “is allowed to intervene at trial for the limited purpose of questioning

and argument on only the discreet [sic] issues of lack of good faith and scope of employment

consistent with Ohio Rev. Code § 2744.07.” Intervenor Order, R. 392, Page ID #13693. Miami

Township subsequently filed an intervenor complaint, in which it sought a declaratory judgment

finding that it did not owe a duty to defend or indemnify Detective Moore. Miami Township

specifically argued that “[t]he alleged acts and/or omissions which serve as the basis for the claims

against Matthew Scott Moore in the Underlying Action, if proven, were not taken by Matthew

Scott Moore in the scope of his employment or official responsibilities” and were also “not taken

in good faith.” Intervenor Compl., R. 397, Page ID #13763.

The case then proceeded to trial. Moore moved for a directed verdict before closing

arguments with respect to the suppression of documents claim, which the district court denied.

The jury then returned a verdict in favor of Gillispie on both claims and awarded him $45 million

in damages. The jury also answered a set of special interrogatories for each claim, which included

the following questions: (1) “was it proven by a preponderance of the evidence that . . . Moore was

not acting in good faith?”; (2) “was it proven by a preponderance of the evidence that . . . Moore

was acting manifestly outside the scope of his employment or official responsibilities as a police

officer with Miami Township?”; and (3) “was it proven by a preponderance of the evidence that . . .

Moore was not acting within the scope of his employment or official responsibilities as a police

officer with Miami Township?” Verdict, R. 475, Page ID #15564–65. The jury answered “no” to

each question. Id.

Following trial, Gillispie filed a motion to intervene in Miami Township’s declaratory

judgment action. The district court denied this motion. Miami Township also filed two motions:

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a motion for judgment as a matter of law, or in the alternative, for a new trial; and a motion to alter

or amend the judgment, arguing that the $45 million damages award was excessive. The court

denied these motions as well.

The district court then proceeded to resolve Miami Township’s claim for declaratory

judgment. Miami Township provided three broad arguments in its declaratory judgment brief: (1)

that the Township did not have indemnify Detective Moore because he “was not acting in good

faith or within the scope of his employment or official responsibilities when he knowingly took

actions that violated Plaintiff Roger D. Gillispie’s constitutional rights;” (2) if the district court

found that the Township did have to indemnify Moore, “then, as a matter of law, [Miami

Township’s] indemnification to Moore is limited to whatever amount Moore pays towards the

judgment;” and (3) that the district court should find that Miami Township does not have to

indemnify Detective Moore because the Ohio indemnification law, Ohio Rev. Code § 2744.07,

violates the Due Process, Equal Protection, and Supremacy Clauses of the United States

Constitution. R. 523, Page ID #18207. The district court rejected Miami Township’s arguments,

finding that the constitutional challenges were not timely raised and that the Township’s other

arguments failed on the merits. Accordingly, the district court found that Miami Township “owes

a duty to defend Moore in connection with Plaintiff Roger Dean Gillispie’s claims” and ordered

the Township “to indemnify Moore in the full amount of the verdict entered against him.” Order,

R. 529, Page ID #18294.

All parties now appeal various portions of the district court’s determinations.

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II. DISCUSSION

A. Standards of Review

“We review a district court order granting summary judgment under a de novo standard of

review, without deference to the decision of the lower court.” Rose v. State Farm Fire & Cas. Co.,

766 F.3d 532, 535 (6th Cir. 2014) (citation and quotation marks omitted). This Court reviews a

motion to amend or alter a judgment for abuse of discretion. Mich. Flyer LLC v. Wayne Cnty.

Airport Auth., 860 F.3d 425, 431 (6th Cir. 2017). The Court reviews a denial of a motion for a

judgment as a matter of law de novo. Morrison v. B. Braun Med. Inc., 663 F.3d 251, 256 (6th Cir.

2011). “We review de novo the district court’s denial of a directed verdict.” Slayton v. Ohio Dep’t

of Youth Servs., 206 F.3d 669, 678 (6th Cir. 2000) (emphasis omitted). “We review a district court’s

jury instructions for abuse of discretion.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 536

(6th Cir. 2008). A district court’s determination on a declaratory judgment is reviewed de novo.

W. World Ins. Co. v. Hoey, 773 F.3d 755, 762 (6th Cir. 2014). We also review de novo “a district

court’s decision to dismiss a matter for untimeliness.” Children’s Ctr. for Developmental

Enrichment v. Machle, 612 F.3d 518, 521 (6th Cir. 2010).

B. Analysis

1. Monell Claims

Gillispie appeals in part the district court’s summary judgment determination. Specifically,

he argues that his five federal claims against Miami Township, which were premised on Monell1

liability, should not have been dismissed on summary judgment.

1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Gillispie specifically argues that Detective Moore violated Gillispie’s due process rights, and that Miami Township therefore faces supervisory liability. -7- Nos. 23-3999/4000/4001, Gillispie v. Miami Twp., et al.

Under Federal Rule of Civil Procedure 56(a), summary judgment is proper “if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” “A dispute of a material fact is genuine so long as the evidence is such that a

reasonable jury could return a verdict for the non-moving party.” Kirilenko-Ison v. Bd. of Educ. of

Danville Indep. Sch., 974 F.3d 652, 660 (6th Cir. 2020) (cleaned up). “When evaluating a motion

for summary judgment, this Court views the evidence in the light most favorable to the party

opposing the motion.” Id.

Under the Supreme Court’s Monell doctrine, “a municipality can be found liable under

§ 1983 only where the municipality itself causes the constitutional violation at issue.” City of

Canton v. Harris, 489 U.S. 378, 385 (1989). This means that “a municipality can be liable under

§ 1983 only where its policies are the ‘moving force behind the constitutional violation.’” Id. at

389 (quoting Monell, 436 U.S. at 694). “Municipal liability must rest on a direct causal connection

between the policies or customs of the city and the constitutional injury to the plaintiff; ‘respondeat

superior or vicarious liability will not attach under § 1983.’” Gray v. City of Detroit, 399 F.3d

612, 617 (6th Cir. 2005) (quoting Harris, 489 U.S. at 385). This Court has recognized four means

by which a plaintiff may show that the municipality’s policies or customs were connected to the

constitutional violation: “(1) the existence of an illegal official policy or legislative enactment;

(2) that an official with final decision making authority ratified illegal actions; (3) the existence of

a policy of inadequate training or supervision; or (4) the existence of a custom of tolerance or

acquiescence of federal rights violations.” Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th

Cir. 2019).

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Gillispie’s brief focuses on two of the means identified by Jackson: ratification by an

official with final decision-making authority and a policy of inadequate training or supervision.

Neither of these theories are availing.

a. Ratification by an Official with Final Decision-Making Authority

Liability under Monell “can be established by showing that an official with final decision

making authority ratified the illegal actions.” Paterek v. Vill. of Armada, 801 F.3d 630, 651 (6th

Cir. 2015) (cleaned up). However, the Supreme Court has clarified that “[t]he fact that a particular

official—even a policymaking official—has discretion in the exercise of particular functions does

not, without more, give rise to municipal liability based on an exercise of that discretion.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 481–82 (1986). Instead, the official must “be

responsible for establishing final government policy respecting such activity before the

municipality can be held liable.” Id. at 483. There are two means by which an individual can be

granted authority to make municipal policy: via “legislative enactment” or delegation “by an

official who possesses such authority.” Id.

Gillispie has failed to show that an official with final decision-making authority ratified

Detective Moore’s alleged constitutional violations. To maintain his Monell claim under a

ratification theory, Gillispie must show that a Miami Township official with final decision-making

authority specifically approved of Detective Moore’s alleged violations. Yet Gillispie provides no

evidence to support such an argument. Gillispie avers that (1) the Township stated “that Moore

acted consistently with its policies or procedures”; (2) “other witnesses testified Moore acted in

compliance with the policies and practices of the Township”; and (3) Detective Moore’s “titular

supervisor[] confirmed that Moore’s decision to administer photo lineups without another officer’s

review of the arrays was consistent with department policy.” Gillispie Br. ECF No. 48, 32.

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Essentially, Gillispie argues that Detective Moore followed MTPD policies, which in-and-of-itself

is indicative of ratification. But that is not the ratification standard. Instead, Gillispie must show

that an official approved of the specific illegal act that Detective Moore committed. See Wallace

v. Coffee Cnty., 852 F. App’x 871, 877–78 (6th Cir. 2021) (finding that a ratification theory did

not apply where a supervisor did not approve of the specific constitutional violations). Gillispie

provides no evidence that anyone approved of the specific alleged violations.

Additionally, Gillispie does not indicate that a specific decision-maker was responsible for

the alleged ratification. This Court has held that a ratification theory “requires that [a] plaintiff

make allegations against a specific final decisionmaker.” Brown v. Chapman, 814 F.3d 447, 463

(6th Cir. 2016). Yet Gillispie does not demonstrate that any one particular individual ratified the

conduct at issue. Instead, Gillispie broadly states that Detective Moore followed MTPD policies,

with no suggestion that a specific official took part in approving Detective Moore’s actions. This

is insufficient under this Circuit’s precedent. Accordingly, the district court correctly determined

that Gillispie’s ratification theory was non-viable.

b. Inadequate Training or Supervision

“In order to show that a municipality is liable for a failure to train its employees, a plaintiff

must establish that: 1) the [municipality’s] training program was inadequate for the tasks that

officers must perform; 2) the inadequacy was the result of the [municipality’s] deliberate

indifference; and 3) the inadequacy was closely related to or actually caused the injury.” Jackson,

925 F.3d at 834 (cleaned up). It is “[o]nly when the failure to train amounts to ‘deliberate

indifference’ on behalf of the city toward its inhabitants, however, will failure to train lead to city

liability under § 1983.” Gregory v. City of Louisville, 444 F.3d 725, 753 (6th Cir. 2006) (quoting

Harris, 489 U.S. at 388). The Supreme Court has found that deliberate indifference “is a stringent

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standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410

(1997). A plaintiff meets the deliberate indifference standard by showing either:

(1) prior instances of unconstitutional conduct demonstrating that the [municipality] had notice that the training was deficient and likely to cause injury but ignored it or (2) evidence of a single violation of federal rights, accompanied by a showing that the [municipality] had failed to train its employees to handle recurring situations presenting an obvious potential for such a violation.

Jackson, 925 F.3d at 836 (citation and internal quotation marks omitted).

Gillispie argues that there is sufficient evidence to demonstrate that Miami Township failed

to adequately train or supervise Detective Moore. At the crux of his argument is the contention

that Miami Township failed to provide any real policies or procedures to guide and cabin Detective

Moore’s investigation. Gillispie specifically argues that the Township did not have policies and

procedures regarding Brady obligations, photo lineups, or basic introductory officer training.

The fault in Gillispie’s argument is that it fails to demonstrate deliberate indifference. At

most, Gillispie argues that the Township failed “to adopt any standards whatsoever to actually

guide the officer; i.e., what procedures MTPD officers should use.” Gillispie Br., ECF No. 48, 30.

It is true that “[t]his Court has held that evidence pointing to a City’s failure to provide any training

on key duties with direct impact on the constitutional rights of citizens is sufficient to survive

summary judgment with a Monell failure to train claim.” Gregory, 444 F.3d at 754. However, it

is not accurate to say that there is evidence in this case that Miami Township failed to provide any

training. The district court highlighted numerous examples of MTPD policies and training efforts,

including: (1) that Detective Moore stated in his deposition that he was trained such that at the

time of the alleged wrongdoing, he understood that he had to turn over any exculpatory information

in his possession and that it was illegal to fabricate evidence or testimony; (2) the MTPD had a

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police academy, which Moore attended, that followed the state’s suggested curriculum; (3) at the

time of the alleged wrongdoing, the Township had written “Photographic Identification General

Guidelines” and “Photographic Show-Up Instructions”; (4) a supervisory detective testified that

the MTPD had a practice and procedure in place requiring officers to turn over their entire body

of work for the case to the prosecutor; and (5) a former MTPD detective testified that the MTPD

maintained a set of policies and procedures relating to case investigations and report retentions.

As there is insufficient evidence to demonstrate an absence of any policies on the part of

Miami Township, Gillispie must show that Miami Township’s actions fall under either of the

Jackson deliberate indifferent standards. Gillispie must therefore demonstrate that either (1) there

were prior instances of unconstitutional conduct by Miami Township employees that put the

Township on notice, or (2) there was evidence of a single violation of constitutional rights and

Miami Township failed to implement policies in response to this violation. Jackson, 925 F.3d at

836. Nowhere does Gillispie touch on these elements. Gillispie does not show that there were

either recurring constitutional violations or that there was a single constitutional violation and

Miami Township failed to implement post-hoc policies. In fact, Gillispie does not even mention

the Jackson standard in either his opening or reply brief, despite the district court’s application of

the standard2 and Miami Township’s extensive discussion of the standard in its reply brief.

Furthermore, there does not appear to be any evidence in the record to find that either of the

Jackson elements apply to this case. Thus, because Plaintiff cannot show any evidence to meet

2 The district court even noted in its summary judgment order that Gillispie failed to address the Jackson standard. Summ. J. Order, R. 298, Page ID #10889 (“To the extent that Gillispie even makes the argument, the evidence does not support a showing of prior instances of unconstitutional conduct demonstrating that the Township had notice that the training was deficient and likely to cause injury but the Township ignored it.” (cleaned up) (emphasis added)). - 12 - Nos. 23-3999/4000/4001, Gillispie v. Miami Twp., et al.

the deliberate indifference standard under Jackson, the district court did not err in finding that

Plaintiff could not maintain his Monell claims under an inadequate training or supervision theory.

In summary, Gillispie has failed to show that either an official with final decision-making

authority approved of the alleged constitutional violations or that Miami Township maintained a

policy of inadequate training or supervision. Gillispie has therefore failed to demonstrate that any

reasonable jury could find Miami Township liable for a Monell supervisory liability claim.

2. Miami Township’s Motion to Alter or Amend the Judgment

Both Miami Township and Detective Moore appeal the district court’s denial of their Rule

59 motion. They specifically seek a reduction in the $45 million in damages, arguing that such an

award shocks the conscience.

Rule 59(e) of the Federal Rules of Civil Procedure permits a district court to alter or amend

a judgment. “A court may grant a Rule 59(e) motion to alter or amend if there is: (1) a clear error

of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need

to prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005). If

a court seeks to alter or amend a judgment with respect to damages, the court may either reduce

the damages or order a new trial. Denhof v. City of Grand Rapids, 494 F.3d 534, 547 (6th Cir.

2007). A district court “is sharply limited in its ability to remit a jury verdict.” Champion v.

Outlook Nashville, Inc., 380 F.3d 893, 905 (6th Cir. 2004). The court can “remit the damages

verdict ‘only when, after reviewing all the evidence in the light most favorable to the prevailing

party, it is convinced that the verdict is clearly excessive; resulted from passion, bias, or prejudice;

or is so excessive or inadequate as to shock the conscience of the court.’” Corbin v. Steak ‘n Shake,

Inc., 861 F. App’x 639, 645 (6th Cir. 2021) (quoting Am. Trim, LLC v. Oracle Corp., 383 F.3d

462, 475 (6th Cir. 2004)). For this reason, this Circuit has found that a damages award should be

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reduced only if it is either: “(1) beyond the range supportable by proof or (2) so excessive as to

shock the conscience, or (3) the result of a mistake.” Bickel v. Korean Air Lines Co., 96 F.3d 151,

156 (6th Cir. 1996) (cleaned up).

a. Standing

Gillispie argues that Miami Township does not have standing to make its damages-

reduction argument. He notes that Miami Township was permitted to intervene in this trial for the

“limited purpose of questioning, argument, and submission of proposed jury instructions and

interrogatories on the discreet issues of lack of good faith and scope of employment.” Gillispie

Br., ECF No. 48, 53 (quoting Mot. Intervene, R. 370, Page ID #12697). According to Gillispie,

this limited scope did not include the capacity to intervene at trial regarding damages, given that

the Township did not make any argument to the jury regarding the amount of damages. (Id.).

However, Gillispie points to no case law holding that an intervenor may not challenge a damages

award that directly impacts the intervenor. In fact, case law in this Circuit suggests the opposite.

This Court has held that “a party to an action in a district court has standing to appeal a judgment

or order by which it is actually aggrieved.” City of Cleveland v. Ohio, 508 F.3d 827, 837 (6th Cir.

2007). In this instance, Miami Township is aggrieved by the district court’s denial of the 59(e)

motion, as the Township is now liable for tens of millions of dollars in damages due to the district

court’s judgment. There is perhaps no better example of a party aggrieved by a district court’s

judgment than a party subject to such large damages. Accordingly, Miami Township has standing

to make this argument.

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b. Merits

Miami Township presents two arguments as to why the district court’s denial was in error:

(1) there is insufficient evidence to support the damages award, and (2) the damages are excessive.

Neither argument is persuasive.

i. Sufficiency of the Evidence

At trial, the jury was instructed that in order to find damages by a preponderance of the

evidence, the jury could consider “the mental and emotional aspects of injury, even if they are not

easy to measure.” Jury Instructions, R. 472, Page ID #15548. The district court further instructed

the jury that “[c]ompensatory damages include but are not limited to:” “[t]he physical mental, and

emotional pain and suffering Plaintiff has experienced;” “[t]he physical, mental, and emotional

pain and suffering Plaintiff is reasonably certain to experience in the future;” “[t]he loss of

enjoyment of life Plaintiff has experienced;” and “[t]he loss of enjoyment of life Plaintiff is

reasonabl[y] certain to experience in the future.” Id.

Miami Township argues that the preponderance of the evidence does not support the $45

million damages award. This is because there is “little specific evidence of past, present, or future

physical pain or suffering, and no specific evidence that Gillispie is reasonably likely to suffer any

loss of enjoyment in the future.” Miami Br., ECF No. 36, 30. Miami Township cites to evidence

that Gillispie is physically mobile and able to engage in hobbies. Regarding actual damages, the

Township argues that there is little evidence that he had $45 million in lost wages due to the time

he spent in prison.

There is a critical flaw in this argument. What Miami Township does not address, and

which formed the core of the district court’s determination, is the fact that Gillispie was forced to

spend years of his life unfairly locked in a maximum-security prison, labeled a violent felon, and

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deprived of the opportunity to live a normal life. The district court’s decision cites pages worth of

testimony and evidence at trial describing the kind of loss and pain endured by Gillispie because

of his wrongful imprisonment. Among the most noteworthy of that evidence includes:

(1) testimony from Gillispie regarding his fellow inmates at his maximum security prison, in which

“[s]eventy percent of the people that are there are not going home” and thus “don’t care about you

or anything else in life,” Order, R. 519, Page ID #18155 (quoting Trial Tr., R. 500, Page ID

#16663–64); (2) testimony from Gillispie regarding the violence in the prison, in which he saw,

among other things, “people beat so bad, the life taken right out of them,” “people stabbed with a

pencil, broke it off so they can’t get it out of them,” “a man get hit in the head so hard that his

eyeball came out of his eye socket,” id. (quoting Trial Tr., R. 500, Page ID #16664–65);

(3) testimony from Gillispie regarding pain caused by the decades spent away from family;

(4) testimony from Gillispie regarding the humiliation felt by having to register as a sex offender;

(5) testimony from Gillispie that after he was released on parole after decades in prison, he “had

to go check in, go pee in a cup, go get permission to leave the state, for five years,” id. at Page ID

#18157 (quoting Trial Tr., R. 500, Page ID #16700–01); (6) testimony from Gillispie that he was

twenty-five years old at the time of his incarceration and was thus unable to ever start a family;

and (7) testimony from Gillispie’s criminal attorney, who told a number of stories demonstrating

the pain felt by Gillispie at never being able to start a family. These pieces of testimony are just a

few examples of the long list of evidence presented to the jury regarding the pain and suffering

felt by Gillispie.

In considering these examples, it cannot be said that the jury’s determination failed to meet

the preponderance of the evidence standard. True, Gillispie does not appear to suffer from any

physical ailments due to his time in prison, and seems able to undertake hobbies in his post-prison

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life. Yet the jury’s instructions were broad, as the jury was encouraged to consider emotional and

mental pain and suffering, and loss of enjoyment of life. The inability to start a family, the

experience of witnessing frequent violence, and the immense reputational damage are all factors

that the jury could consider under the district court’s instructions. Miami Township has not

identified, nor has this Court found, cases finding that a jury may not award very large damages

based on these factors. Accordingly, the jury’s award of damages was supported by a

preponderance of the evidence.

ii. The Size of the Damages

Miami Township next argues that the damages award is so excessive that it shocks the

conscience. To support its argument, the Township turns the Court’s attention to one district court

case, Wheatt v. City of E. Cleveland, No. 17-CV-377, 2019 WL 4071646 (N.D. Ohio Aug. 29,

2019), and one out-of-circuit case, Limone v. United States, 579 F.3d 79 (1st Cir. 2009).

Wheatt concerned a case in which three plaintiffs were wrongfully convicted for murder in

1996. Wheatt, 2019 WL 4071646 at *1. The plaintiffs were later granted a new trial in Ohio state

court 2015 and subsequently brought suit against the municipal defendant in federal court under

§ 1983. Id. In the federal court trial, the jury awarded $15 million in damages to the plaintiffs,

which the district court upheld. Id. at *1, *8–10. Miami Township argues that Wheatt

demonstrates the unconscionability of the damages award in this case: each plaintiff in Wheatt

received $5 million in damages for two decades of wrongful imprisonment; Gillispie, by contrast,

was awarded nine times that figure. In Limone, the First Circuit considered a case in which a jury

awarded over $100 million in damages to seven wrongfully convicted plaintiffs. Limone, 579 F.3d

at 83. The district court calculated damages by determining that the “wrongfully imprisoned

plaintiffs were entitled to compensation of at least $1 million per year of imprisonment.” Id. at

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107. While First Circuit upheld this calculation, it noted in dicta that “the district court’s awards

are at the outer edge of the universe of permissible awards and survive scrutiny, though barely,

only because of the deferential nature of the standard of review and the unique circumstances of

the case.” Id. Miami Township argues that in this case, the annualized cost of Gillispie’s term of

imprisonment would be $2.5 million—far more than the $1 million that was reluctantly accepted

by the First Circuit.

Miami Township’s reliance on these cases is unavailing. To begin, this Circuit has

emphasized that reliance on comparator cases is often inapposite. In Champion v. Outlook

Nashville, Inc., we noted that “[e]ndeavoring to compare awards is difficult and often unfruitful,

because the factual circumstances of each case differ so widely and because it places reviewing

courts in the position of making awkward assessments of pain and suffering better left to a jury.”

380 F.3d at 906 (citing, inter alia, Layne v. Wal-Mart Stores, Inc., 24 F. App’x 364, 368 (6th Cir.

2001), Thompson v. Nat’l R.R. Passenger Corp., 621 F.2d 814, 827 (6th Cir. 1980)). It is thus

questionable whether this Court should even consider the aforementioned cases.

But even if we were to engage in such a comparator analysis, there are cases that have

similarly large damages awards. In Gilliam v. Allen, for example, the Fourth Circuit considered a

case in which two wrongfully convicted individuals served decades in prison. 62 F.4th 829, 834

(4th Cir. 2023). After a jury trial, the district court awarded $62 million in compensatory damages,

$13 million in punitive damages, $36 million in prejudgment interest, and $6.25 million in

attorney’s fees. Id. The Fourth Circuit concluded that the district court abused its discretion in

granting the $36 million prejudgment interest award, and also failed to reduce the compensatory

damages by $10-to-$11.5 million to account for prior settlements that the plaintiffs had received.

Id. at 847–50. In all other respects, however, the court upheld the award of damages, thus giving

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the plaintiffs and their counsel a total award of over $70 million. See id. at 851. That award

exceeds the total in this case. And even when the $70 million total is divided in half to account

for the two plaintiffs, Gillispie’s award is only 29 percent higher. This percentage is diminished

even further when Gilliam’s $10 million in prior settlements is considered. If the $10 million in

prior settlements is counted as part of the total, the award stands at $40 million per plaintiff—

meaning that Gillispie’s award was only 12.5 percent higher.

Finally, it must be emphasized the degree to which a court’s discretion is cabined in

remitting damages. We have specifically held that a court “is sharply limited in its ability to remit

a jury verdict.” Champion, 380 F.3d at 905. This is because “juries have broad discretion to set

damages amounts.” Smith v. LexisNexis Screening Sols., Inc., 837 F.3d 604, 612 (6th Cir. 2016).

Juries are free to consider “humiliation, mental suffering and the intangible loss of civil rights” in

determining damages in § 1983 cases. Green v. Francis, 705 F.2d 846, 850 (6th Cir. 1983). That

is precisely what the jury did in this case. It reviewed the reams of evidence describing the long-

term pain Gillispie endured throughout his wrongful term of imprisonment, and the long term

psychological and familial effects cause by a quarter-century spent behind bars. Because “[o]ne

simply cannot quantify the mental and physical pain and suffering such an experience would

cause,” this Court “cannot conclude that the evidence does not support the awards.” Bickel, 96

F.3d at 156. Thus, the district court correctly cabined its review of the damages in this case and

found that the award was not excessive or shocked the conscience.

In summary, Miami Township has standing to assert its argument regarding the damages

award. That argument, however, is unavailing. The award was both supported by a preponderance

of the evidence and was not so excessive so as to shock the conscience.

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3. Miami Township’s Motion for Judgment as a Matter of Law

After the conclusion of trial, Miami Township filed a motion for a judgment as a matter of

law regarding whether it had to indemnify Detective Moore. Miami Township argued that

Detective Moore did not act in good faith and acted outside of his official responsibilities, and as

such, the Township could not be held liable for indemnification under Ohio law. The Township

thus requested that the district court either set aside the jury’s findings regarding Detective

Moore’s actions or hold a new trial on this issue. The district court denied this motion.

“Judgment as a matter of law is proper where ‘there is no legally sufficient evidentiary

basis for a reasonable jury to find for the non-moving party on that issue,’ and where the claim

‘cannot under the controlling law be maintained without a favorable finding on that issue.’”

Kusens v. Pascal Co., 448 F.3d 349, 360 (6th Cir. 2006) (quoting Fed. R. Civ. P. 50(a)) (cleaned

up). In evaluating a Rule 50 motion, courts employ “the same as the inquiry for resolving a motion

for summary judgment pursuant to Rule 56.” White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d

789, 794 (6th Cir. 2004) (en banc), aff’d, 548 U.S. 53 (2006). This means that “[w]e review all of

the evidence in the record in the light most favorable to the nonmoving party and determine

whether there was a genuine issue of material fact for the jury.” Id.

The relevant statute at issue here is Ohio Rev. Code § 2744.07(B). That statute concerns

indemnification, and states in relevant part:

[A] political subdivision shall indemnify and hold harmless an employee in the amount of any judgment, other than a judgment for punitive or exemplary damages, that is obtained against the employee in a state or federal court or as a result of a law of a foreign jurisdiction and that is for damages for injury, death, or loss to person or property caused by an act or omission in connection with a governmental or proprietary function.

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Ohio Rev. Code § 2744.07(B)(1). If, however, “the employee was not acting in good faith” or

“was not acting within the scope of the employee’s employment or official responsibilities,” then

the political subdivision’s duty to indemnify vanishes. Id. § 2744.07(B)(2)(a)–(b). At trial, the

jury considered whether Miami Township was liable for indemnification under this statute. In its

verdict, the jury stated that Miami Township had failed to prove that Detective Moore was not

acting in good faith or was acting outside the scope of his employment, thus rendering the

Township liable for indemnification. Miami Township argues that this finding is unsupportable

by both the evidence presented at trial and controlling law.

a. Good Faith

In its jury instructions, the district court defined good faith as follows:

For purposes of this issue, one does not act in good faith when his conduct evinces a dishonest purpose, conscious wrongdoing, or the breach of a known duty through some ulterior motive. Bad faith is the opposite of good faith, generally implying or involving actual or constructive fraud, or a design to mislead or deceive another, not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive. Bad faith, although not susceptible of concrete definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive, or ill will partaking of the nature of fraud. Conduct that is reckless may still be in good faith.

Jury Instructions, R. 472, Page ID #15551. This definition finds its support in Ohio case law. See,

e.g., McCormack v. Jefferson Area Loc. Sch. Dist., 112 N.E.3d 338, 344 (Ohio Ct. App. 2018)

(“[O]ne does not act in good faith when his conduct evinces a dishonest purpose, conscious

wrongdoing, or the breach of a known duty through some ulterior motive.”); Strayer v. Barnett,

94 N.E.3d 156, 164 (Ohio Ct. App. 2017) (noting that an employer is not liable where “the

employee’s acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless

manner”); Buckeye Union Ins. v. New England Ins., 720 N.E.2d 495, 499 (Ohio 1999) (“A lack of

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good faith is the equivalent of bad faith, and bad faith, although not susceptible of concrete

definition, embraces more than bad judgment or negligence. It imports a dishonest purpose, moral

obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will

partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.”)

(citation omitted).

There is ample evidence in this case that Detective Moore acted recklessly. In its order

denying the motion for judgment as a matter of law, the district court comprehensively listed each

major piece of evidence highlighting Detective Moore’s reckless actions throughout the

investigation and prosecution. With respect to photo identifications, for example, Detective Moore

asked C.W. if “any of the persons shown in the photographs resemble the person you saw” after

C.W. had already failed to identify Gillispie in the initial photo array. Trial Tr., R. 489, Page ID

#15940–41. Regarding suppression of evidence, for example, Detective Moore failed to turn over

evidence pertaining to the suggestive aspects of his questioning.

Reckless behavior, however, is not necessarily bad faith. Instead, as Ohio law and the jury

instructions make clear, Miami Township was required to prove that Detective Moore engaged in

“conscious wrongdoing” to show he acted in bad faith. See Buckeye Union Ins., 720 N.E.2d at

499; Jury Instructions, R. 472, Page ID #15551. In the long list of evidence highlighted by the

district court, there does not appear to be any clear statement, testimony, or record clearly showing

that Detective Moore knowingly flouted Gillispie’s constitutional protections. True, a jury could

infer from the circumstantial evidence that Detective Moore engaged in a level of willingness.

However, a jury could also conclude that Detective Moore’s actions were the product of

incompetence, not conscious wrongdoing. For example, one of the experts at trial testified that a

well-trained police officer “would be able to determine whether or not a lineup was knowingly or

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unnecessarily suggestive.” Trial Tr., R. 493, Page ID #16297–98. The expert emphasized the

caveat that the officer needed to be well-trained, suggesting that a poorly trained officer might be

unable to recognize when his actions are violating proper practice. It thus appears that there is

evidence to suggest that Detective Moore was inept. While an incompetent police officer presents

its own risks and concerns, such an individual does not act with the kind of mental culpability

required for a showing of bad faith under Ohio law.

Miami Township points to this Court’s holding in Moldowan v. City of Warren, 578 F.3d

351 (6th Cir. 2009). That case concerned a § 1983 suit regarding a Brady violation. Id. at 363–

65. Miami Township cites to a particular passage to make its argument, which states:

It [is] not impl[ied] . . . that the police are entirely shielded from liability unless a defendant shows bad faith. Where the exculpatory value of a piece of evidence is apparent, the police have an unwavering constitutional duty to preserve and ultimately disclose that evidence. The failure to fulfill that obligation constitutes a due process violation, regardless of the whether a criminal defendant or § 1983 plaintiff can show that the evidence was destroyed or concealed in bad faith. The reason no further showing of animus or bad faith is required is that, where the police have in their possession evidence that they know or should know might be expected to play a significant role in the suspect’s defense, the destruction or concealment of that evidence can never be done in good faith and in accord with their normal practice.

Id. at 388 (cleaned up). According to the Township, this demonstrates that “Moore’s acts could

not have been taken in good faith (or in accord with the normal practice (official duties) of police

officers) as a matter of law.” Miami Br., ECF No. 34, 24. This is because Moldowan, according

to the Township, “holds certain actions can never be done in good faith.” Id. at 25.

Moldowan is unavailing to the Township’s argument. Ohio law requires a showing of bad

faith to be relieved of indemnification liability; in Moldowan, by contrast, we explicitly held that

bad faith was not required for § 1983 claims. 578 F.3d at 388. The entire point of the above

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quotation was to elucidate the reasons why bad faith is not required for § 1983. And as the district

court correctly pointed out, the “opinion in Moldowan had nothing to do with Ohio Rev. Code

§ 2744.07 or indemnification or Ohio law whatsoever.” Order, R. 519, Page ID #18135. Ohio

law has specific standards with respect to the intertwined nature of bad faith and indemnification

that has no similar parallel to federal § 1983 doctrine. Thus, applying a case that does not have

any connection whatsoever to the specific Ohio law at issue would be improper.

In summary, we cannot say that the jury’s determination on good faith was unsupported by

the evidence. There is no obvious and direct evidence demonstrating that Detective Moore

knowingly violated Gillispie’s constitutional protections. While perhaps a reasonable jury could

find that Detective Moore acted in bad faith, it is also possible for a reasonable jury to conclude

that Detective Moore was simply incompetent. The jury’s good faith determination was not

therefore unreasonable.

b. Outside the Scope of Employment

With respect to scope of employment, the district court provided the following instruction

to the jury:

Scope of employment means the employee is engaged in an activity that is logically related to the business of the employer. The determination of whether conduct is within the scope of employment necessarily turns on the perception of whether the employee acted, or believed himself to have acted, at least in part, in his employer’s interests. However, if an employee’s actions are self-serving or have no relationship to the employer’s business, then the conduct is manifestly outside the scope of employment. Manifestly is defined as plainly or obviously.

Jury Instructions, R. 472, Page ID #15551. Like the good faith jury instruction, this instruction is

also derived from Ohio law. See, e.g., McCormack, 112 N.E.3d at 344 (“The determination of

whether conduct is within the scope of employment necessarily turns on the fact finder’s

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perception of whether the employee acted, or believed himself to have acted, at least in part, in his

employer’s interests.” (cleaned up)); Theobald v. Univ. of Cincinnati, 857 N.E.2d 573, 577, 580

(Ohio 2006) (“The Revised Code does not define ‘scope of employment.’ The concept generally

denotes an agency relationship in which the agent or employee is engaged in an activity that is

logically related to the business of the principal or employer. . . . [I]f an employee’s actions are

self-serving or have no relationship to the employer’s business, then the conduct is manifestly

outside the scope of employment.” (internal quotation marks omitted)).

Miami Township points to little evidence to show that Detective Moore’s actions were

taken outside of the scope of his employment. In its brief, the Township provides a lengthy

retelling of the reckless actions taken by Detective Moore. The Township then states that this

evidence “shows that Moore’s actions . . . could not have been done . . . within the scope of his

employment or official responsibilities.” Miami Br., ECF No. 36, 21. Yet at no point does Miami

Township provide evidence that specifically shows that Detective Moore’s actions were either

self-serving or wholly detached from the business of MTPD. In fact, it is hard to conceive of how

any of Detective Moore’s wrongdoing was committed out of self-interest or divorced from MTPD

business. There is no evidence to suggest that convicting Gillispie would have returned any

immediate personal benefit to Detective Moore. Furthermore, all of Detective Moore’s alleged

wrongdoing occurred during a police investigation, which is definitionally part of the work of the

MTPD.

Miami Township again cites to our decision in Moldowan. In that case, we held that “the

destruction or concealment of that evidence can never be done . . . in accord with [the police’s]

normal practice.” Moldowan, 578 F.3d at 389 (citation and quotation marks omitted). Yet whether

an action is within the normal practice has no bearing on whether an employee was acting out of

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self-serving motives or with no connection to his employer’s business. This again demonstrates

the incompatibility of attempting to draw a parallel between a case dealing with federal § 1983

doctrine and this case: the Ohio law at issue has specific standards that do not parallel federal

doctrine, and it is thus inapposite to rely on case law interpreting federal law. Miami Township

also cites to a New York Court of Appeals case, Lemma v. Nassau Cnty. Police Officer

Indemnification Bd., which also does not address the Ohio law at issue. 105 N.E.3d 1250 (N.Y.

2018). That case does not even discuss the contours of a scope of employment doctrine; in fact,

the Court of Appeals specifically found that the doctrine at issue, “discharge of duties,” is not

always identical to the scope of employment doctrine. Id. at 1256.

In summary, the evidence demonstrates that a reasonable jury could conclude that

Detective Moore was acting in good faith and that he was acting within the scope of his

employment. Thus, the jury was within its discretion to find that Miami Township was required

to indemnify Detective Moore pursuant to Ohio Rev. Code § 2744.07(B).

4. Detective Moore’s Motion for a Directed Verdict

When parties move for a directed verdict under Federal Rule of Civil Procedure 50, they

must “speak up at two times if they want the court to resolve the claim as a matter of law.” Maxwell

v. Dodd, 662 F.3d 418, 421 (6th Cir. 2011). First, “[t]hey must move for judgment as a matter of

law before the claim goes to the jury,” and second, “they must renew the motion (or seek a new

trial) after the jury issues its verdict.” Id. (citing Fed. R. Civ. P. 50(a)–(b)). If a party fails on

either of these fronts, this Court is deprived of appellate review. Id.

Detective Moore moved for a directed verdict on the suppression and destruction of

evidence claims before the commencement of closing arguments. However, it does not appear that

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he raised his motion for a second time, as is required under Rule 50(b). Accordingly, Detective

Moore has failed to preserve this issue for appellate review.

5. Detective Moore’s Proposed Jury Instructions

“We will reverse a judgment based on inadequate jury instructions only ‘if the instructions,

viewed as a whole, were confusing, misleading and prejudicial.’” Williams v. Eau Claire Pub.

Schs., 397 F.3d 441, 445 (6th Cir. 2005) (citation omitted). “A district court’s refusal to give a

jury instruction constitutes reversible error if (1) the omitted instruction is a correct statement of

the law, (2) the instruction is not substantially covered by other delivered charges, and (3) the

failure to give the instruction impairs the requesting party’s theory of the case.” Decker v. GE

Healthcare Inc., 770 F.3d 378, 396 (6th Cir. 2014) (citation omitted).

Prior to the conclusion of trial, Detective Moore submitted proposed jury instructions.

With respect to the suggestive identification claim, Detective Moore requested that the district

court include the following instruction:

You are instructed that the following items do not, in and of themselves make a photo array unduly suggestive:

1. The difference in the background color of the photos;

2. The differences in the clothing worn by the persons in the photo array;

3. The fact that the suspect photo has some slight unique aspect to it such as head tilt, difference in head size, face width, head being more or less in the foreground, or some difference in age of persons in the array, provided the person meets the general description of the suspect;

4. Any alleged inquiry of the victim of whether they could identify the perpetrator from the photo array;

5. That the eye color of the suspect was more noticeably blue tha[n] the fillers;

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6. That time, even years, had passed between the crime and the identification;

These factors are just examples and you are entitled to evaluate the evidence before you. The fundamental question is whether you consider the identifications to be reliable, fair evidence.

Moore Proposed Jury Instructions, R. 413, Page ID #14062 (citations omitted). The district court

did not adopt this proposed instruction.

The district court did not abuse its discretion in failing to adopt Detective Moore’s

proposed instruction. Assuming, arguendo, that the proposed instruction is a correct statement of

the law3 and is not substantially covered by the other charges, the omission of this instruction

nevertheless did not impair Detective Moore’s case theory. Nothing in the district court’s

instructions prevented Detective Moore from arguing that differences in photo background colors,

differences in clothing colors, unique aspects to photos in the array, inquiries from the victim,

bluer eye colors, and time passage do not necessarily make a photo array unduly suggestive. In

fact, Detective Moore’s counsel made these very arguments during closing argument, and nothing

in the district court’s instructions detracted from that argument.

Detective Moore’s proposed jury instruction is, at its core, a laundry list of factors that are

helpful to his case. Yet there is no case law in this Circuit holding that a litigant is entitled to such

jury instructions merely because they aid his case-in-chief. Furthermore, this Court may only

reverse a district court’s jury instructions if those instructions “were confusing, misleading and

prejudicial.” Williams, 397 F.3d at 445. There was nothing confusing, misleading, or prejudicial

about the district court’s instructions. Those instructions clearly articulated the law and provided

3 Gillispie provides strong arguments in his brief as to why these instructions are not necessarily accurate statements of the law. However, we need not reach that point, as the omission of the proposed instructions did not impinge on Detective Moore’s theory of the case. - 28 - Nos. 23-3999/4000/4001, Gillispie v. Miami Twp., et al.

ample opportunity for Detective Moore to poke holes in Gillispie’s case theory. Thus, the district

court did not err in denying the proposed jury instruction.

6. Declaratory Judgment

On November 8, 2023, the district court entered a judgment on Miami Township’s

declaratory judgment complaint, finding that the Township must indemnify Detective Moore for

the full amount of damages. The district court determined that Miami Township was required to

indemnify Detective Moore under Ohio Rev. Code § 2744.07(B) because the jury explicitly found

in its special interrogatories that Detective Moore had acted in good faith and within the scope of

his employment. The court specifically noted that questions of good faith and scope of

employment are inherently factual in nature, and the court could “not disregard the conclusions of

the jury on issues of fact.” Order, R. 529, Page ID #18285–86.

a. Reliance on Jury Determination

Miami Township argues that the district court erred in following the jury’s special

interrogatory answers. According to the Township, the jury’s findings belied the evidence and

controlling law. But as discussed above, the jury’s findings were supported by both the evidence

and applicable law. Miami Township further argues that if the district court had granted the

Township’s motion for judgment as a matter of law, the Township could have presented

“additional evidence of Moore’s conduct not presented at trial regarding the issues of good faith

and scope of employment.” Miami Br., ECF No. 36, 36. The Township then provides a long list

of evidence supporting its theory that Detective Moore acted neither in good faith nor within the

scope of his employment. Yet as discussed above, the district court did not err in denying the

motion for judgment as a matter of law. Thus, both of Miami Township’s arguments fail, as the

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district court properly relied on the jury’s special interrogatory responses to find that the Township

must indemnify Detective Moore.

b. Indemnification in the Full Amount

Miami Township next argues that it should not be held liable to pay the full amount of the

$45 million in damages. The Township states that “it was entitled to a declaration that its

indemnification obligation to Moore is limited to reimburse Moore for what Moore can pay

towards any final judgment against him.” Miami Br., ECF No. 36, 39. According to the Township,

this standard should be adopted because the animating principles behind Ohio Rev. Code

§ 2744.07 did not contemplate the kind of indemnification at issue in this case.

This issue is one of statutory interpretation. We must ask whether Ohio Rev. Code

§ 2744.07(B) permits Miami Township to indemnify Detective Moore for the full $45 million

damages award. To determine the meaning of a statute, “[t]he starting point . . . is the language of

the statute itself.” United States v. Plavcak, 411 F.3d 655, 660 (6th Cir. 2005) (quoting Grp. Life

& Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 210 (1979)). “This inquiry begins—and

sometimes ends—with the plain language of the statute. If the language of the statute is clear, the

court applies the statute as written.” Donovan v. FirstCredit, Inc., 983 F.3d 246, 253 (6th Cir.

2020) (cleaned up). When examining the specific language of a statue, “words will be interpreted

as taking their ordinary, contemporary, common meaning,” as “it is appropriate to assume that the

ordinary meaning of the language that Congress employed ‘accurately expresses its legislative

purpose.’” Plavcak, 411 F.3d at 660–61 (first citing Perrin v. United States, 444 U.S. 37, 42

(1979), then quoting Mills Music, Inc. v. Snyder, 469 U.S. 153, 164 (1985)).

Ohio Rev. Code § 2744.07(B)’s language is plain and clear. The statute states that

Except as otherwise provided in division (B)(2) of this section, a political subdivision shall indemnify and hold harmless an employee - 30 - Nos. 23-3999/4000/4001, Gillispie v. Miami Twp., et al.

in the amount of any judgment, other than a judgment for punitive or exemplary damages, that is obtained against the employee in a state or federal court or as a result of a law of a foreign jurisdiction and that is for damages for injury, death, or loss to person or property caused by an act or omission in connection with a governmental or proprietary function.

Ohio Rev. Code § 2744.07(B)(1). The plain text of this provision limits a political subdivision’s

duty to indemnify in one narrow circumstance—when employees have judgments against them for

punitive or exemplary damages. Id. § 2744.07(B)(1). In this case, because Gillispie’s damages

were compensatory only, the limitation in § 2744.07(B)(1) does not apply. And the statute does

not make any kind connection between the amount an employee is able to pay and the amount the

municipality must indemnify. Reading Miami Township’s proposed interpretation of the law

would require an impermissible extratextual interpretation of this statute. This lack of textual

grounding in the Township’s interpretation is fatal to the Township’s argument.

The Township turns the Court’s attention to Ayers v. City of Cleveland, 156 N.E.3d 848

(Ohio 2020). In that case, the Ohio Supreme Court considered whether a judgment creditor could

bring a claim under Ohio Rev. Code § 2744.07 against the City of Cleveland. Id. at 850–51. The

court ultimately determined that only an employee of a political subdivision, and not a judgment

creditor, could seek indemnification under the statute. Id. at 854. Miami Township specifically

highlights the court’s finding that “the right of indemnification is personal to the employee” and

that “the statute does not provide that a political subdivision shall indemnify any judgment against

an employee.” Id. at 853. The court further noted that “indemnification is a personal right rather

than a right that may be enforced by a third party” because “indemnification exists to make whole

the person who is indemnified” and “indemnification does not exist to benefit a third party.” Id.

at 853–54 (citation and internal quotation marks omitted). Miami Township argues that this

language necessarily leads to the “conclusion that the Township’s indemnity obligation to Moore

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is limited to the amount Moore pays towards the judgment[, which] is not a stretch or inconsistent

with Ayers.” Miami Br., ECF No. 36, 41.

The Township’s interpretation of Ayers far exceeds the Ohio Supreme Court’s actual

holding. Ayers in no way contemplated the issue at hand: whether a municipality must indemnify

the full amount of the damages against an employee. Each of the Ayers quotations cited by the

Township are in explicit reference to the question of whether a non-employee, third party can

utilize Ohio Rev. Code § 2744.07 to recover. 156 N.E.3d at 853–54. This case thus presents little

precedential usefulness for the issue at hand.

Miami Township also argues that permitting full indemnification would frustrate the Ohio

Legislature’s purpose in passing Ohio Rev. Code § 2744. The Township highlights case law

finding that the “manifest statutory purpose of R.C. Chapter 2744 is the preservation of the fiscal

integrity of political subdivisions.” Summerville v. Forest Park, 943 N.E.2d 522, 531 (Ohio 2010)

(citation omitted). Miami Township appears to use this quote to argue that the Township should

not be saddled with the financial burden of paying $45 million to Gillespie on behalf of Moore.

Yet that quotation is inapplicable to this case. The language from Summerville concerns

exceptions under Ohio Rev. Code § 2744 in which a political subdivision is not required to pay.

See id. It is those exceptions, and not the statute as whole, that the Ohio Supreme Court’s language

was geared towards. See id. In fact, to suggest that the statute exists purely to protect the financial

resources of a municipality would contort basic logic. It would be nonsensical for Ohio to pass a

law finding that a municipality must financially cover the losses of its employees in court, but also

have the underlying goal of protecting the fiscal assets of the municipality.

In summary, a plain reading of Ohio Rev. Code § 2744.07(B) indicates that Miami

Township must indemnify Detective Moore for the full amount of damages. Miami Township’s

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reading of the statute falls well outside the bounds of the law’s text and is grounded in an inaccurate

reading of Ohio case law.

c. Constitutional Challenges

Miami Township further argues that it does not have to indemnify Detective Moore

because the underlying statute is unconstitutional. Specifically, the Township argues that Ohio

Rev. Code § 2744.07(B) violates the Due Process, Equal Protection, and Supremacy Clauses of

the U.S. Constitution. The district court did not consider the merits of this argument, as the court

found that the argument was untimely pursuant to Federal Rule of Civil Procedure 5.1.

Rule 5.1 governs the notice a party must give when it makes a constitutional challenge to

a statute. The rule states in relevant part:

A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly: (1) file a notice of constitutional question stating the question and identifying the paper that raises it, if: (A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or (B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and (2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned—or on the state attorney general if a state statute is questioned—either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.

Fed. R. Civ. P. 5.1(a). After these requirements have been satisfied, the court must then “certify

to the appropriate attorney general that a statute has been questioned.” Fed. R. Civ. P. 5.1(b).

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The district court determined that Miami Township failed to provide timely notice as

required under Rule 5.1. It specifically found that the Township had failed to make the

constitutional challenge in the initial intervenor complaint; instead, the first time the Township

brought this argument was over a year later in the Township’s declaratory judgment briefing. The

court cited district court case law to hold that “[a] party desiring to question the constitutionality

of a state statute at issue in a civil action—as is the case here—should lodge their challenge at the

pleading stage of the litigation.” Order, R. 529, Page ID #18292–93 (citing Mockeridge v. Alcona

Cnty. ex rel. Bd. of Comm’rs, 636 F. Supp. 3d 790, 793–94 (E.D. Mich. 2022)). The court further

noted that to allow Miami Township to bring this argument “would cause substantial prejudice on

Moore and the State of Ohio” because “[h]ere at the eleventh hour of this litigation, neither Moore

nor the State of Ohio could reasonably be expected to fully and adequately defend the

constitutionality of Ohio Rev. Code § 2744.07.” Id. at Page ID #18293.

There is an important flaw with the district court’s finding. The court cited a district court

case to support the proposition that Rule 5.1 notice must be given at the pleadings stage of

litigation. However, neither the district court, nor Detective Moore, nor Gillispie point to case law

from this Court holding the same. None of our sister circuits appear to take this approach either.

Furthermore, this requirement seems to contradict the language of Rule 5.1. Rule 5.1(a) states that

notice must be filed where a party makes a constitutional challenge in “a pleading, written motion,

or other paper.” This language suggests that a party need not just bring a constitutional challenge

in a pleading, as they may also bring such challenges in written motions or other papers.

The district court did not err, however, in its finding of prejudice. Although the question

of prejudice in the context of Rule 5.1 has not been fully fleshed out by this Circuit or our sister

circuits, we have nevertheless spoken broadly on untimely and prejudicial filings. We have largely

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found that when a party makes a filing in the late stages of litigation, that filing may be considered

prejudicial where it imposes an unfair burden on other parties. See, e.g., Salem Pointe Cap., LLC

v. BEP Rarity Bay, LLC, 854 F. App’x 688, 699 (6th Cir. 2021) (denying intervention where

“extensive litigation . . . has occurred, [so] intervention at this late stage would cause prejudice in

the form of undue delay” (cleaned up)); Bank of Am., N.A. v. Corporex Realty & Inv. Corp., 661

F. App’x 305, 317–18 (6th Cir. 2016) (finding the addition of new claims late in litigation would

prejudice the defendant because it would require reopening discovery); United Precision Prods.

Co. v. Avco Corp., 540 F. App’x 489, 497 (6th Cir. 2013) (finding an amendment to a counterclaim

three months before trial “is untimely, is prejudicial to the opposing party and would unduly delay

the proceedings” (cleaned up)).

In this case, Miami Township raised its constitutional claims on September 21, 2023. That

was nearly one year after it filed its intervenor complaint and exactly ten months after the jury

returned its verdict. There appears to be little reason why the Township could not have raised

these arguments earlier. Furthermore, given how late in litigation the Township made this

argument, the district court was correct to find it unreasonable for Detective Moore and the State

of Ohio to adequately defend the constitutionality of the statute at issue. The district court rendered

its judgment only a month-and-a-half after Miami Township made this argument, meaning that

Detective Moore and the State of Ohio had only a small amount of time to prepare arguments for

an entirely unforeseen issue that had yet to be litigated in this case.

Miami Township argues that it could not have raised this issue earlier because the issue

had not yet become ripe. According to the Township, at the time it filed the intervenor complaint,

“it was unknown if the statute would even apply, and the Township argued that it did not apply

because Moore was not acting in good faith or within the scope of his employment or official

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responsibilities.” Miami Br., ECF No. 36, 44. Yet under this logic, the whole intervenor complaint

was not ripe. At the time the Township filed its complaint, the trial had yet to commence, and it

was therefore “unknown” whether Detective Moore would be held liable and the Township would

face possible indemnification. Furthermore, once the jury returned its verdict and specifically

indicated in its special interrogatories that Detective Moore acted in good faith and within the

scope of his employment, Miami Township was under clear notice that it was almost certain to

face indemnification liability under Ohio Rev. Code § 2744.07(B). Nevertheless, the Township

proceeded to wait ten months after the verdict to first make its constitutional argument.

In summary, the district court did not err in finding that Miami Township’s constitutional

challenge was untimely. The district court’s determination that a Rule 5.1 notice must be filed in

a complaint does not have support in either Sixth Circuit precedent, the precedent of other circuit

courts, or the language of Rule 5.1. However, the district court correctly held that allowing this

argument to proceed would have unfairly prejudiced both Detective Moore and the State of Ohio.

In the course of this lengthy litigation, Miami Township brought this novel challenge to Ohio law

at the last hour, and it would have been difficult for Ohio and Detective Moore to provide an

adequate defense on such short notice.4

4 For similar reasons, we deny the Township’s pending motion to certify seven questions— which concern the implementation and constitutionality of Ohio Rev. Code § 2744—to the Ohio Supreme Court. “[C]ertification is disfavored when it is sought only after the district court has entered an adverse judgment.” State Auto Prop. & Cas. Ins. Co. v. Hargis, 785 F.3d 189, 194 (6th Cir. 2015). Miami Township did not timely seek certification in district court; indeed, it sought certification with this Court only after the district rendered an adverse judgment against it. We therefore exercise our “sound discretion” and deny the Township’s motion. See Pennington v. State Farm Mut. Auto. Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009) (citation omitted). - 36 - Nos. 23-3999/4000/4001, Gillispie v. Miami Twp., et al.

III. CONCLUSION

For the reasons set forth above, this Court DENIES Miami Township’s motion to certify

questions to the Ohio Supreme Court and AFFIRMS the judgment of the district court.

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