White v. Cleveland

2025 Ohio 739

• Court: Ohio Court of Appeals
• Decided: March 6, 2025
• Docket: 112408, 112413, 112415
• Status: Published

Opinion

[Cite as White v. Cleveland, 2025-Ohio-739.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

DALONTE WHITE, :

Plaintiff-Appellee, : Nos. 112408, 112413, and v. : 112415

CITY OF CLEVELAND, ET AL., :

Defendants-Appellants. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: March 6, 2025

Civil Appeal from the Court of Common Pleas General Division Case No. CV-17-880097

Appearances:

The Chandra Law Firm, LLC, Subodh Chandra, and Donald P. Screen, for appellee.

Mark D. Griffin, Cleveland Director of Law, Elena N. Boop, Chief Trial Counsel, James R. Russell, Jr., Chief Assistant Director of Law, and Affan Ali, Assistant Director of Law, for appellants Robert Beveridge, John Kubas, David Santiago, Sr., Michael Schade, and Thomas Shoulders.

Wilkerson & Associates Co., LPA, Ernest L. Wilkerson, Jr., and Kathryn M. Miley, for appellant David Lam.

ANITA LASTER MAYS, J.: {¶ 1} This consolidated appeal arises from 42 U.S.C. 1983 federal and state

claims filed by plaintiff-appellee Dalonte White (“White”) against defendants-

appellants: (1) the City of Cleveland (“City”); (2) members of the Cleveland Police

Department, Officer Michael Schade (“Ofc. Schade”), Sergeant Thomas Shoulders

(“Sgt. Shoulders”), and detectives Robert Beveridge, (“Det. Beveridge”), John Kubas

(“Det. Kubas”), and David Santiago (“Det. Santiago”) (collectively the “Officers”),

and (3) Detective David Lam (“Det. Lam”). White’s claims concern his arrest for a

home invasion involving a shooting, robbery, and assault. Although the juvenile

court found no probable cause to bind White over to adult court, he remained

incarcerated for 20 months after his arrest.

{¶ 2} White initiated this action in the Cuyahoga County Court of Common

Pleas. The case was removed to the United States District Court for the Northern

District of Ohio. The federal court granted summary judgment for defendants on

White’s federal claims but declined to exercise supplemental jurisdiction over the

remaining state-law claims, remanding them to the state trial court. On remand,

the trial court denied appellants’ motions for summary judgment, citing disputed

issues of material fact.

{¶ 3} The City now appeals the trial court’s refusal to grant summary

judgment on its claim of sovereign immunity under R.C. 2744.02. The Officers and

Det. Lam separately appeal the trial court’s denial of immunity under R.C.

2744.03(A)(6)(b) and (A)(6)(c) and contend that the doctrine of collateral estoppel precludes relitigating or reconsideration of factual or legal issues determined by the

district court. Det. Lam also assigned error to the trial court’s denial of a stay under

the Servicemembers Civil Relief Act, 50 U.S.C. 3932 (“Relief Act”), but now concedes

that the issue is moot.

{¶ 4} For the reasons that follow, in this split decision, Part I, delivered by

Judge Anita Laster Mays, and joined by Judges Mary J. Boyle and Sean C. Gallagher,

reverses the trial court’s decision on assignment of error one refusing to grant

summary judgment to the City of Cleveland on the issue of immunity. Further, we

sustain the City’s second assignment of error. Neither the trial court nor this court

has jurisdiction to review a federal court’s decision.

{¶ 5} Part II, delivered by Judge Sean C. Gallagher, and joined by Judge

Mary J. Boyle, reverses the trial court’s judgment on the issue of collateral estoppel

as to all officers individually. Judge Anita Laster Mays dissents with a separate

opinion on the issue of collateral estoppel as to all officers individually. This matter

is remanded to the trial court for further proceedings consistent with this opinion.

Part I

Background and Facts

{¶ 6} White alleges that he was arrested and detained based solely on

flawed eyewitness identifications, a lack of evidence, false police reports, alleged

witness tampering, and other intentional violations of his civil rights. For efficiency,

both the trial court and the federal court incorporated the factual background from White v. Cleveland, N.D. Ohio No. 1:17-CV-01165, 2020 U.S. Dist. LEXIS 241429

(Dec. 23, 2020) (“White I”).

The Incident

{¶ 7} On April 21, 2015, three males entered the home of victim C.A. The

assailants also robbed two of C.A.’s teenage relatives (“S.L.” and “Z.H.”). One

assailant (“the shooter”) pistol whipped and shot C.A. in the shoulder; a dog

belonging to C.A. was also shot. The victims believed that the shooter shot himself

in the leg or foot when one of the dogs bit him. Police issued alerts to local hospitals.

{¶ 8} Initial reports indicated that neither teen witness got a good look at

the shooter’s face. However, the victims described the shooter as a tall, heavy-set

individual with braided hair. The federal court’s decision noted that a responding

officer’s report initially described the shooter as having braided hair, being at least

six feet tall, and weighing 250 pounds. Because the officer interviewed multiple

people at the scene, the source of the description was unclear. White maintains that

the evidence shows the teenagers provided that description.

{¶ 9} Once additional officers arrived, they canvassed the neighborhood

and obtained surveillance footage from a neighbor’s home. The video showed an

individual limping with dreadlocks or braids, wearing a dark North Face jacket, dark

pants, and white shoes, tucking a firearm into his waistband. Consistent with the

teen victims’ statements and the video, police asked dispatch to watch hospitals for

anyone reporting with a leg or foot injury from a dog bite or gunshot. {¶ 10} While at the scene, Det. Lam learned from Ofc. Schade about a recent

aggravated-menacing complaint in the same area that reportedly identified White

and an associate, Rayvion Edwards (“Edwards”). However, the district court found

that the related menacing report did not actually name White as a suspect.

Investigation and Arrest

{¶ 11} The next day, Det. Lam and Sgt. Shoulders conferred with Det.

Beveridge, who was known for his knowledge of neighborhood gang activity.

Beveridge relayed that White and two other young males were affiliated with the

“Hungry Money Family” or “Heartless Money Family” (“HMF”) — a group believed

to be robbing people in that neighborhood. Based on that information, Lam

prepared three juvenile photo arrays: one featuring White and the others featuring

the other suspected HMF members. Because the juvenile photo database is small,

the only available photo of White showed him wearing braids while the filler photos

did not feature similar hairstyles.

{¶ 12} On April 23, 2015, the photo arrays were shown to the teen victims.

S.L. identified White as the shooter with 100 percent certainty, and Z.H. identified

White with 70 percent certainty. Neither teen identified anyone else in the other

arrays. They later explained they identified White partly because of his braids.

{¶ 13} On April 24, 2015, C.A. reportedly described the shooter as

approximately 5'5" and weighing 160 to 170 pounds — closer to White’s height and

weight (5'5", 135 pounds). C.A. identified White with 100 percent certainty. White

maintains that C.A. never provided this description and that it was later inserted. On the same day, officers visited White’s home, photographed his legs, and found

no signs of dog bites or gunshot wounds. Although the injuries were crucial to the

suspect’s description, Det. Lam and Sgt. Shoulders obtained a warrant for White’s

arrest that same day. In the arrest-warrant affidavit, Sgt. Shoulders cited

information from Ofc. Schade’s alleged statement that White was a suspect in the

aggravated-menacing complaint, the surveillance video, and the teen victims’

identifications of White with high certainty.

{¶ 14} Police searching White’s home found a black North Face jacket.

Meanwhile, additional interviews with White’s associates (D.M. and Edwards)

indicated White was a known HMF member, allegedly bitten by a dog about a week

earlier, and that HMF members stored guns at one of their residences. Later,

warrants for White’s phones, Facebook records, and DNA yielded no additional

evidence supporting the theory that White was the shooter. White claims a witness

and social media posts placed him at home when the invasion occurred.

Subsequent Developments

{¶ 15} On May 1, 2015, police discovered that an individual named Edward

Bunch (“Bunch”) had arrived at Lakewood Hospital with a gunshot wound to the

right leg within an hour of the home invasion. Bunch gave inconsistent explanations

for the injury, including a claim that he was shot while riding a bicycle. Further

investigation revealed that Bunch was a 19-year-old, 6'0", 213-pound Black male

with a prior home-invasion arrest in which he allegedly used force and took items at

gunpoint. Despite these similarities, White remained in custody. {¶ 16} Detectives prepared new photo arrays for Bunch and another suspect.

On May 13, 2015, C.A., S.L., and Z.H. were shown these new arrays. According to

official records, Det. Kubas identified Bunch with 90 percent certainty. Also, C.A.

testified during White’s July 2015 bindover hearing that she recognized Bunch’s

photo as the shooter but was told not to mark him because White had already been

arrested. S.L. gave a similar testimony, stating that the detective administering her

photo array instructed her not to circle someone previously identified.

{¶ 17} Kubas and Santiago denied telling any witness not to identify

someone already chosen. According to C.A.’s testimony, the revelation about

Bunch’s identification came to White’s defense counsel in June 2015. During

White’s July 16, 2015 bindover hearing,

C.A. and S.L. testified regarding their identifications of Bunch, as described above. This was the first time that the prosecutor assigned to the [C.A.] home invasion, Norman Schroth (“Schroth”), learned of the alleged “serious and exculpatory” improprieties in the administration of the photo arrays to [C.A.] and [S.L.]. The bindover hearing continued on July 21, 2015, and concluded on July 24, 2015. At the conclusion of the hearing, the judge held that there was no probable cause that White was part of the [C.A.] home invasion, noting that all three witnesses had identified Bunch, that White was the only one with dreadlocks or twists in the photo arrays in which he had been identified (while all of the individuals in Bunch’s photo arrays had similar hairstyles), the conflicting descriptions of Suspect #1’s height and weight, Bunch’s injury the night of the home invasion, and the lack of evidence corroborating the initial identification of White, including the lack of marks on White’s legs. Despite this finding, the judge did not dismiss the case against White nor release him from detention. Schroth indicated his belief that if there was no probable cause, the court had to dismiss the case. However, after a short recess, the judge stated that Ohio’s Eighth District Court of Appeals has held that it is the state’s case and it may dismiss the case if it wishes, but that she was not comfortable dismissing the charges outright. As a result, the judge set the matter for trial, while noting the prosecution could dismiss the case.

White v. Cleveland, No. l:17-cv-116 J.E. at 13-14 (N.D. Ohio, Dec. 23, 2020).

{¶ 18} Although the bindover hearing did not result in the dismissal of the

charges, White was released on house arrest on July 31, 2015. He returned to

detention for violating the release terms in September 2015. Ultimately, the home-

invasion charges were dismissed without prejudice in December 2015, but White

stayed in detention until December 1, 2016, for additional assault charges

committed while in custody.

{¶ 19} White alleges that the “rigged” identifications and fabricated

menacing allegation were the only bases for probable cause in the arrest-warrant

affidavit. Moreover, White claims that officers continued to detain him, pursue him,

and falsified reports, despite the emergence of Bunch as a likely suspect.

{¶ 20} On May 9, 2017, White filed this civil suit in the Cuyahoga County

Court of Common Pleas. On April 17, 2020, White filed a second amended

complaint (“SAC”) against the City and the individual defendants in their personal

and official capacities alleging the following claims:

Claim 1: Fourth and Fourteenth Amendment malicious prosecution under 42 U.S.C. § 1983 against all defendants;

Claim 2: Fourth and Fourteenth Amendment false arrest/false imprisonment under 42 U.S.C. § 1983 against all defendants, except Kubas and Santiago;

Claim 3: Fourth and Fourteenth Amendment wrongful detention under 42 U.S.C. § 1983 against all defendants; Claim 4: Fourteenth Amendment due process violation under 42 U.S.C. § 1983 against all defendants;

Claim 5: Fourth and Fourteenth Amendment failure to train under 42 U.S.C. § 1983 against the City;

Claim 6: malicious prosecution under Ohio law against all defendants [and against the individual defendants in their official and personal capacities];

Claim 7: false arrest under Ohio law against all defendants, except Kubas and Santiago [and against the individual defendants in their official and personal capacities];

Claim 8: false imprisonment under Ohio law against all defendants [and against the individual defendants in their official and personal capacities];

Claim 9: intimidation (using materially false or fraudulent writings to attempt to influence public servants) under R.C. 2921.03 [(A) and (C) (against all defendants, and against the individual defendants in their official and personal capacities]; and

Claim 10: civil liability for criminal acts under R.C. 2307.60[(A)(1) against all defendants, and against the individual defendants in their official and personal capacities].

White, No. l:17-cv-1165 J.E. at 16.

{¶ 21} Appellants removed the action to federal court and filed for

summary judgment on May 4, 2020. White also filed a motion for partial summary

judgment seeking summary judgment on the question of liability on Claims 9 and

10 against Kubas and Santiago in their personal and official capacities. White v. City

of Cleveland, N.D. Ohio No. 1:17-CV-01165, 2020 U.S. Dist. LEXIS 241429, at *25-

26 (Dec. 23, 2020). {¶ 22} After the close of discovery, the federal district court granted

summary judgment for defendants on White’s federal claims under 42 U.S.C. 1983.

However, the court specifically declined supplemental jurisdiction over the state

claims (Claims 6-10), explaining that the state courts were better suited to decide

them. The court also denied White’s motion for partial summary judgment on his

claims for intimidation (R.C. 2921.03) and civil liability for criminal acts (R.C.

2307.60), without considering the merits of the claims. The district court noted that

it denied White’s motion for partial summary judgment “without prejudice to any

right White may have to refile his motion upon remand to state court.” The court

specified its reasoning for the denial of Claims 9 and 10 was because the court

declined to exercise jurisdiction over White’s state law claims, not based on the

merits of the claims.

{¶ 23} In January 2021, the state court received the remanded matter.

White moved for reconsideration of the federal court’s decision, but the trial court

denied White’s motion, finding that it lacked authority to review the district court’s

ruling. In September 2022, the City, the Officers, and Det. Lam separately moved

for summary judgment that the trial court denied. The City appealed on February

14, 2023 (Case No. 12408), the Officers appealed on February 14, 2023 (Case No.

112413), and Det. Lam appealed on February 15, 2023 (Case No. 12415). The cases

were consolidated on appeal raising the following assignments of error.

Assignments of Error 1. The trial court erred by denying the City immunity under the Political Subdivision Tort Liability Act, R.C. 2744.02.

2. This court lacks jurisdiction to review the federal court’s December 23, 2020, summary-judgment decision on White’s federal claims.

3. The trial court erred by denying the Officers and Det. Lam immunity under R.C. 2744.03(A)(6)(b) on White’s malicious prosecution, false arrest, and false imprisonment claims (Claims 6, 7, and 8).

4. The trial court erred by denying the Officers and Det. Lam immunity under R.C. 2744.03(A)(6)(c) on White’s intimidation and civil-liability claims (Claims 9 and 10).

5. The trial court erred when it failed to grant a stay during Det. Lam’s deployment, under the Servicemembers Civil Relief Act, 50 U.S.C. 3932. Lam concedes this assignment of error is moot.

Jurisdiction

{¶ 24} Generally, an order denying a motion for summary judgment is not a

final, appealable order. Hubbell v. Xenia, 2007-Ohio-4839, ¶ 9. However, an order

that denies a political subdivision the benefit of immunity is a final appealable order

under R.C. 2744.02(C). Id. at ¶ 27. Upon review, the appellate court is limited to a

review of the trial court’s order that denied the benefit of political immunity.

Reinhold v. Univ. Hts., 2014-Ohio-1837, ¶ 21 (8th Dist.), citing Riscatti v. Prime

Properties Ltd. Partnership, 2013-Ohio-4530, ¶ 20. Therefore, our review will be

limited to a review of the orders that denied appellants the benefit of political

immunity.

Standard of Review

{¶ 25} Summary judgment rulings are reviewed de novo under Civ.R.

56(C). Heba El Attar v. Marine Towers E. Condominium Owners’ Assn. 2023- Ohio-2581, ¶ 10 (8th Dist.), citing Grafton v. Ohio Edison Co., 77 Ohio St.3d 102,

105 (1996). Summary judgment is appropriate if the moving party demonstrates (1)

there are no genuine issues of material fact, (2) it is entitled to judgment as a matter

of law, and (3) reasonable minds, viewing the evidence most favorably to the

nonmoving party, can reach only one conclusion adverse to that party. Civ.R. 56(C),

Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996).

{¶ 26} The moving party bears the initial burden of identifying portions of

the record that demonstrate the absence of a genuine issue of material fact. If the

moving party meets that burden, the nonmovant must respond with specific facts

under Civ.R. 56(C) to show a genuine issue remains for trial. If the nonmovant fails

to do so, summary judgment is warranted. Dresher at 294.

Political Subdivision Tort Liability Act Immunity — City

{¶ 27} In its first assignment of error, the City argues the trial court erred

when it denied the City’s motion for summary judgment. Appellants contend the

City is entitled to immunity under the Political Subdivision Tort Liability Act, R.C.

Ch. 2744. Additionally, the City claims White waived objections to its motion for

summary judgment under the Political Subdivision Tort Liability Act because he

failed to raise objections in the trial court.

{¶ 28} The Political Subdivision Tort Liability Act generally immunizes

municipal corporations for governmental or proprietary functions, subject to

limited statutory exceptions. R.C. 2744.02. When a lawsuit is filed against a political

subdivision, the court applies a three-tier analysis to determine whether immunity applies. Cater v. Cleveland, 83 Ohio St.3d 24, 28 (1998). Under R.C. 2744.02(A)(1),

the initial presumption is that the political subdivision is immune from liability, but

that presumption may be rebutted under the second-tier analysis, if one of the

statutory exceptions in R.C. 2744.02(B) applies. Even if an exception applies, the

third tier of the immunity analysis reinstates immunity if the subdivision proves it

is entitled to one of the R.C. 2744.03 defenses. Colbert v. Cleveland, 2003-Ohio-

3319, ¶ 9. The Political Subdivision Tort Liability Act (R.C. 2744.02) grants

municipalities broad immunity for governmental functions, unless specific statutory

exceptions apply. R.C. 2744.02(B) exceptions are for injury, death, or loss to person

or property caused by:

1. Negligent operation of motor vehicles,

2. Negligent performance of proprietary functions,

3. Failure to maintain public roads,

4. Negligence in maintaining government buildings, or

5. Civil liability explicitly imposed by law.

{¶ 29} In the instant case, the City argues that none of the five statutory

exceptions apply and that White failed to object to the City’s claim of immunity

under the Political Subdivision Tort Liability Act before the trial court. Since White’s

claims do not involve motor vehicles, public roads, or government buildings, R.C.

2744.02(B)(2) and (5) provide White’s only possible options to defeat the City’s

immunity defense. {¶ 30} R.C. 2744.02(B)(2) provides an exception to immunity based on

negligent performance of proprietary functions. Here, White alleges that the City’s

liability lies with its supervision and training of officers. He also claims that the

City’s policies and procedures permit officers to obtain arrest warrants based on

fraudulent affidavits and ignore exculpatory evidence. White’s claims against the

City concern police department operations, which are governmental functions. E.g.,

Friga v. E. Cleveland, 2007-Ohio-1716, ¶ 9 (8th Dist.). White argues that the City’s

actions were both negligent and intentional. Regardless, R.C. 2744.02(B)(2) is not

applicable to negligent performance of governmental functions nor may it be used

to preclude immunity for intentional torts. E.g., M.H. v. Cuyahoga Falls, 2012-

Ohio-5336, ¶ 4 (R.C. 2744.02(A)(1) generally confers immunity from liability for

injury caused by a political subdivision’s acts and omissions “in connection with a

governmental or proprietary function”.) See also Harris v. Sutton, 2009-Ohio-

4033, ¶ 15 (8th Dist.) (Ohio courts consistently have held that political subdivisions

are immune from intentional tort claims). Therefore, absent an exception under

R.C. 2744.02(B)(5), the City is entitled to immunity.

{¶ 31} R.C. 2744.02(B)(5) provides an exception to immunity for political

subdivisions when civil liability is explicitly imposed by law for the municipality’s

actions. “Without direct or unmistakable terms imposing civil liability upon the city,

R.C. 2744.02(B)(5) does not apply.” Swanson v. Cleveland, 2008-Ohio-1254 ¶ 23

(8th Dist.). White offers no statute that explicitly imposes civil liability on the City.

Accordingly, the City is entitled to statutory immunity on White’s state-law claims. {¶ 32} The trial court erred by denying the City’s motion for summary

judgment on those claims. We sustain the City’s first assignment of error.

Review of Federal Court’s Order Granting Summary Judgment

{¶ 33} The City asserts in its second assignment of error that this court lacks

jurisdiction to review the federal court’s December 23, 2020 summary judgment

decision on White’s federal claims. After remand, White filed a motion in the trial

court asking for reconsideration of the federal court’s order granting summary

judgment in favor of appellants under 42 U.S.C. 1983. The trial court held that it

lacked jurisdiction to do so. The federal court remanded only the state-law claims,

and White failed to appeal the federal decision to the Sixth Circuit. It is undisputed

that Ohio appellate courts cannot review decisions of federal courts. Ford Motor

Credit Co., L.L.C. v. Collins, 2014-Ohio-5152, ¶ 17 (8th Dist.).

{¶ 34} White’s avenue to challenge the federal court’s dismissal of his federal

claims was to appeal to the United States Sixth Circuit Court of Appeals, pursuant

to the Federal Rules of Appellate Procedure and 28 U.S.C. 1291, or request

reconsideration in federal, not state court. Furthermore, the trial court properly

recognized that it lacked jurisdiction to review a final federal court judgment. More

importantly, White contends he does not seek review of the federal district court’s

order. To that end, a review of the district court’s finding of probable cause to

initially arrest White is not properly before this court and will not be addressed.

{¶ 35} Appellant’s second assignment of error is disregarded. ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, P.J., and SEAN C. GALLAGHER, J., CONCUR

Part II

SEAN C. GALLAGHER, J., MAJORITY OPINION:

{¶ 36} I fully concur with the lead opinion’s conclusion as to the City of

Cleveland’s entitlement to statutory immunity. Notwithstanding, I respectfully

disagree with the dissent’s analysis concerning the trial court’s decision denying the

individual defendant police officers and detectives the benefits of immunity

conferred under R.C. 2744.03(A)(6).

{¶ 37} The dissent imputes the conduct of the different political subdivision

employees to each other, for example, concluding that the allegations against Kubas

and Santiago are sufficient to warrant finding an exception to immunity as to the

other officers. This conclusion directly conflicts with established authority that each

officer is only potentially liable for their own acts or omissions, not those committed

by others. Morrison v. Horseshoe Casino, 2020-Ohio-4131, ¶ 75 (8th Dist.), citing

Estate of Graves v. City of Circleville, 2008-Ohio-6052, ¶ 29-35 (4th Dist.). White

must demonstrate that each individual employee’s act or omission meets the

R.C. 2744.03(A)(6)(b) standard in order to demonstrate that an exception to

immunity exists for that individual employee. He cannot lump everyone together.

{¶ 38} In addition, the dissent concludes that we are bound by the findings

of the federal court but then claims that for the purposes of the state claims of malicious prosecution, false arrest and imprisonment, intimidation and civil liability

for criminal acts, which largely focus on the probable-cause determination, there are

issues of fact. However, the federal court unambiguously concluded that there was

probable cause to arrest and detain White. As another panel from this district has

concluded, because there was probable cause for the arrest and detention, White

cannot demonstrate the exception to immunity under R.C. 2744.03(A)(6)(b).

Morrison at ¶ 83.

{¶ 39} On this point, the dissent attempts to distinguish the federal court’s

probable-cause determination claiming that the federal court did not determine

whether probable cause existed to continue White’s prosecution after the bindover

hearing. None of the officers’ or detectives’ alleged acts or omissions occurred after

the bindover hearing, a fact of consequence to the state immunity claims and one

expressly considered by the federal court. White v. Cleveland, 2020 U.S. Dist.

LEXIS 241429, *69 (N.D.Ohio, Dec. 23, 2020) (concluding that none of the officers’

or detectives’ individual actions related to the continued detention and prosecution

following the bindover hearing). Any decision to continue the prosecution following

the bindover hearing solely rested with the prosecutor, who at that time was aware

of the alleged conduct of the defendants.

{¶ 40} White has presented no evidence demonstrating that each individual

defendant’s acts or omissions were with “malicious purpose, in bad faith, or in a

wanton or reckless manner.” Id. It should be noted, however, that although the

parties extensively litigated the 42 U.S.C. 1983 claims in federal court, none of the federal court filings or evidence filed therein were introduced in the lower court’s

record on remand. The only evidentiary material included in the record is a short

transcript of C.A.’s deposition attached to the parties’ respective motions. White

exclusively cites documents ostensibly filed in the federal-court proceedings, but

those filings have not been preserved in the record of this appeal. See, e.g., State v.

Johnson, 2016-Ohio-4888, ¶ 5 (2d Dist.) (noting that a transcript from federal

proceedings must be introduced in the trial-court record to preserve for appellate

review). Thus, our factual review is limited to the federal court’s recitation of the

evidence.

{¶ 41} White argues that the exception to immunity under subsection

(A)(6)(b) applies, but he does so by framing his argument on questions of fact

pertaining to the merits of his claims of malicious prosecution, false arrest and

imprisonment, intimidation and civil liability for criminal acts. This, however, is an

interlocutory appeal under R.C. 2744.01 in which the trial court denied the political

subdivision’s employees the benefits of immunity. The sole issue is whether the

political subdivision and its employees are entitled to immunity under the statutory

framework. Accordingly, and after concluding that the city is immune as a matter

of law, we must determine “whether, based on the evidence in the record, reasonable

minds could conclude that [the individual employee of the political subdivision]

acted ‘with malicious purpose, in bad faith, or in a wanton or reckless manner’ so as

to preclude immunity” being applied to that individual. Argabrite v. Neer, 2016-

Ohio-8374, ¶ 15, quoting R.C. 2744.03(A)(6)(b). This exception to immunity employs “rigorous standards that will in most circumstances be difficult to

establish[.]” Argabrite at ¶ 8.

{¶ 42} As to this standard, White’s sole argument is based on the lack of

probable cause to arrest or detain White. According to White, malice under R.C.

2744.03(A)(6) “may be inferred from proof of lack of probable cause[.]” Lorenzo v.

Akron, 2002-Ohio-7318, ¶ 17 (9th Dist.). This argument necessarily focuses on

collateral estoppel and the scope of the federal court’s conclusion that the officers

and detectives had probable cause to arrest and detain White for prosecution. See

Ferrante v. Peters, 2008-Ohio-3799 (8th Dist.) (concluding that collateral estoppel

precluded the state court from relitigating issues resolved by the federal court on

remand). Because collateral estoppel precludes further review of the probable-cause

determination by the trial court, White is required to demonstrate that the officers

each individually acted with a malicious purpose, in bad faith, or in a wanton and

reckless manner to injure White despite having sufficient probable cause to arrest

and detain him.

{¶ 43} Only the officers who participated in White’s arrest and detention,

however, can be held liable for those acts. Each political subdivision employee’s

conduct is separately analyzed when determining whether immunity under

R.C. 2744.03(A)(6)(b) applies. Morrison, 2020-Ohio-4131, at ¶ 75 (8th Dist.), citing

Estate of Graves, 2008-Ohio-6052, ¶ 29-35 (4th Dist.).

{¶ 44} As the federal court expressly concluded, Schade and Beveridge did

not participate in the arrest, detention, or prosecution of White: “Neither Schade nor Beveridge participated further in the investigation of White, the creation of the

photo arrays at issue, the applications for arrest and search warrants, or the actual

arrest of White.” White, 2020 U.S. Dist. LEXIS 241429, at *36 (N.D. Ohio Dec. 23,

2020). Further, White has not presented any evidence in this record demonstrating

that Schade or Beveridge committed any acts or omissions resulting in White’s

detention or prosecution, much less those that would satisfy the R.C.

2744.03(A)(6)(b) standard. Id. at *71-72. Simply conveying information to others

based on their beliefs as to what occurred in other cases is not a sufficient basis to

jump to the conclusion that they acted with malice, in bad faith, or in a reckless or

wanton manner.

{¶ 45} As a result, White has failed to demonstrate an exception to individual

immunity afforded to those two political subdivision employees. They are entitled

to immunity as a matter of law, and the trial court erred in concluding otherwise.

{¶ 46} Kubas and Santiago were blind administrators of the disputed photo

array that included Bunch instead of White. Being described by all parties as “blind

administrators” necessarily means they were tasked with conducting the lineup with

no knowledge of the identity of the suspect. See R.C. 2933.83(A)(2) (“‘blind

administrator’ means the administrator does not know the identity of the suspect”);

White, 2020 U.S. Dist. LEXIS 241429 at *17 (concluding that Kubas and Santiago

were “blind administrators” of the disputed photo array). White has not contested

the fact of consequence that both Kubas and Santiago were “blind administrators” as statutorily defined. He also has cited no evidence demonstrating any knowledge

on their part as to specifics of the case.

{¶ 47} Even if we assumed that they indeed instructed the witnesses to not

circle the photograph of Bunch based on some confusion, that confusion does not

rise to the rigorous standards under R.C. 2744.03(A)(6)(b) for the purpose of

breaching the immunity afforded to the political subdivision employees. It might be

disputed evidence of negligence, but nothing more. Both Kubas and Santiago are

entitled to immunity in light of the lack of evidence demonstrating that their acts

were committed with malicious purpose, in bad faith, or in a reckless or wanton

manner.

{¶ 48} This leaves Lam and Shoulders. White claims that there are issues of

fact as to Lam and Shoulders’ liability because there are questions regarding

“whether Lam and Shoulders knew the statements supporting their arrest warrant

were false.” Appellee Brief at p. 34. For the purposes of Civ.R. 56, it is not enough

to rest on mere allegations. “‘Mere speculation and unsupported conclusory

assertions are not sufficient’ to meet the nonmovant’s reciprocal burden under

Civ.R. 56(E) to withstand summary judgment.” Wilmington Trust N.A. v.

Boydston, 2017-Ohio-5816, ¶ 31 (8th Dist.), quoting Loveday v. Essential Heating

Cooling & Refrigeration, Inc., 2008-Ohio-4756, ¶ 9 (4th Dist.). White is required

to produce evidence that Lam and Shoulders individually knew the statements

supporting the arrest warrant were false at the time they submitted the affidavit to

the court. Instead of focusing on their individual conduct, White lumps all the employees’ acts and omissions under the umbrella of the “the City’s attempt to hide

a certain police report” or that Lam and Shoulders could be found liable based on

the alleged conduct of Kubas and Santiago. Appellee Brief at p. 34-35; but see

Morrison, 2020-Ohio-4131, at ¶ 75.

{¶ 49} Although in general, “issues regarding malice, bad faith, and wanton

or reckless behavior are questions presented to the jury[,] . . . where the record lacks

evidence demonstrating that the political subdivision employee acted in such a

manner,” summary judgment in favor of the individual employee is appropriate. Id.

at ¶ 80, citing Schoenfield v. Navarre, 2005-Ohio-6407 (6th Dist.). As a panel from

this court has concluded, finding that officers acted with sufficient probable cause

in the arrest, detention, and prosecution of a defendant impacts the R.C.

2744.03(A)(6)(b) determination. Id. at ¶ 83. After concluding that the 42 U.S.C.

1983 claims raised by the plaintiff were not viable based on the undisputed fact that

the individual officers had probable cause to arrest, detain, and seek to prosecute

the plaintiff, the Morrison Court applied that conclusion to determine that the

finding of sufficient probable cause demonstrated that the officers were separately

immune under R.C. 2744.03(A)(6)(b). Id.; see also Thompson v. City of Lyndhurst,

2019-Ohio-3277, ¶ 47 (8th Dist.) (concluding that there was no evidence of malice,

bad faith, or wanton or reckless misconduct for the purposes of R.C.

2744.03(A)(6)(b) because there was probable cause for the arrest, detention, and

issuance of an indictment); Wiggins v. Kumpf, 2015-Ohio-201, ¶ 20 (2d Dist.)

(concluding that the exception to immunity under R.C. 2744.03(A)(6)(b) was inapplicable based on the fact that the officer had probable cause to arrest the

plaintiff).

{¶ 50} Because the federal court in this case found probable cause to support

the arrest, detention, and initial prosecution of White, it must likewise be concluded

that White is unable to demonstrate any issues of material fact as to whether Lam

or Shoulders acted with malice, bad faith, or in a wanton or reckless manner.

Morrison at ¶ 83. Accordingly, the trial court erred in denying them the benefits of

immunity under R.C. 2744.03(A)(6).

{¶ 51} For these reasons, I concur in part with the lead opinion. I agree that

the city is entitled to immunity as a matter of law and join that portion of the opinion,

but the trial court’s decision as to the individual employees is reversed. The city and

its employees are entitled to immunity because White failed to demonstrate the

applicability of R.C. 2744.03(A)(6)(b) and the trial court should have entered

judgment in their favor on all claims.

Conclusion

{¶ 52} The City’s first assignment of error is sustained. We reverse the trial

court’s denial of political-subdivision immunity for the City. The City is entitled to

summary judgment on White’s state-law claims.

{¶ 53} We overrule the City’s second assignment of error to the extent that it

seeks a jurisdictional finding not before the court.

{¶ 54} Appellants’ third assignment of error is sustained. We reverse the trial

court’s denial of employee immunity for the Officers and Det. Lam on White’s claims for malicious prosecution, false arrest, and false imprisonment. (Claims 6, 7, and

8.) The majority of the court concludes that the City and the officers have immunity.

{¶ 55} Appellants’ fourth assignment of error is sustained. We reverse the

trial court’s denial of summary judgment on Claims 9 and 10, intimidation under

R.C. 2921.03 and civil liability under R.C. 2307.60.

{¶ 56} Appellants’ fifth assignment of error is moot. This matter is

remanded to the trial court for further proceedings consistent with this opinion.

It is ordered that appellee and appellants split the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

___________________________ SEAN C. GALLAGHER, JUDGE

MARY J. BOYLE, P.J., CONCURS; ANITA LASTER MAYS, J., DISSENTS IN PART (WITH SEPARATE OPINION)

ANITA LASTER MAYS, J., DISSENTING IN PART:

{¶ 57} I fully concur with the lead opinion’s conclusion as to the City of

Cleveland’s entitlement to statutory immunity. Notwithstanding, I respectfully

disagree with the portion reversing the trial court’s decision granting the individual defendant police officers and detectives the benefits of immunity conferred under

R.C. 2744.03(A)(6).

The Officers and Det. Lam

{¶ 58} The Officers and Det. Lam argue that the trial court erred by denying

their claims of individual immunity under R.C. 2744.03(A)(6)(b) and (c). At the

core of their argument is that the federal court’s findings — when it granted

summary judgment for the City on White’s claims under 42 U.S.C. 1983 for

malicious prosecution, false arrest, and false imprisonment — preclude the trial

court from determining whether genuine issues of material fact remain as to White’s

parallel state-law claims for malicious prosecution, false arrest, or false

imprisonment under R.C. 2744.03(A)(6).

{¶ 59} The Officers and Det. Lam argue that the trial court is barred from

considering whether there are genuine issues of material fact concerning a lack of

probable cause in this case. They rely on collateral estoppel (issue preclusion),

which prohibits reexamining an issue that was 1) actually litigated, 2) determined

by a court of competent jurisdiction, and 3) involves the same parties or their privies.

Thompson v. Wing, 70 Ohio St.3d 176, 183 (1994). Collateral estoppel can only

preclude the trial court from considering whether genuine issues of material fact

remain if appellants can prove the exact probable-cause issues were litigated or

determined by the district court. State ex rel. Davis v. Pub. Emps. Retirement Bd.,

2008-Ohio-6254, ¶ 28. Appellants have failed to prove the district court found

probable cause for White’s continued prosecution after his bindover hearing. {¶ 60} The court acknowledged probable-cause issues were relevant at two

points in White’s prosecution: (1) White’s initial arrest and (2) after the victims

allegedly identified Bunch. The court analyzed White’s malicious prosecution

claims in light of two points in time in which appellants’ actions may have affected

White’s prosecution. However, the district court made no probable-cause

determinations relating to White’s continued detention and prosecution once

exculpatory evidence implicated Bunch as the shooter. The gravamen of a malicious

prosecution offense is continued detention without probable cause. Tlapanco v.

Elges, 969 F.3d 638, 654 (6th Cir. 2020), fn. 3, accord Gregory v. Louisville, 444

F.3d 725, 747, 750 (6th Cir. 2006).

{¶ 61} To prevail on a malicious prosecution claim where prosecution

continued without probable cause, White must prove malice in continuing the

prosecution and that the prosecution terminated in his favor. Coleman v.

Beachwood, 2009-Ohio-5560, ¶ 19 (8th Dist.). “In other words, a defendant can

recover for a prosecution that was not malicious at its inception, but only became

malicious later, when it continued without probable cause.” Selective Ins. Co. v. RLI

Ins. Co., 706 Fed.Appx. 260, 266 (6th Cir. 2017). “The key issue is whether there

was probable cause and when any probable cause disappeared.” Id. Here, the

district court specifically limited its probable cause findings to White’s arrest

warrant stating:

Even if the Court assumes these false statements and omissions were made deliberately and knowingly or with a reckless disregard for the truth and assesses the warrant application as if it had excluded the false statements and included the information omitted-taking into account that several of White’s blanket statements are not completely accurate, as discussed below-probable cause still supported the warrant for White’s arrest.

White, No. l:17-cv-1165 J.E. at 25-26.

{¶ 62} Notably, the court made no determinations regarding whether the

Officers’ or Lam’s actions were malicious, in bad faith, wanton, or reckless. It is well

settled that summary judgment in favor of a political subdivision’s employee is

appropriate only when the facts are clear and fail to rise to the level of conduct that

could be construed as malicious, in bad faith, or wanton and reckless. Pierce v.

Woyma, 2012-Ohio-3947, ¶ 15 (8th Dist.). The Eighth District Court of Appeals

previously addressed this issue in Ferrante v. Peters 2008-Ohio-3799 (8th Dist.).

Officers were accused of excessive force in their handling of a report of a man with a

gun. The plaintiff filed suit with overlapping state and federal claims. Like the

present case, Ferrante was removed to federal district court where the officers

claimed qualified immunity. In Ferrante, district court also granted summary

judgment on the federal claims in favor of the officers and remanded the state claims

back to the state court. The district court specifically determined that the officer’s

actions were neither “malicious” nor “sadistic” and thus, protected from liability on

the federal claims. Upon remand, the officers argued that the state court had to

accept the district court’s findings. On appeal, this court agreed that the district

court’s determination that the officer’s actions were not malicious and were in good faith were precluded from reexamination by the state court, thus the officers were

entitled to immunity.

{¶ 63} I find no conflict between our holding in Ferrante and our findings

herein. Collateral estoppel precludes the state court from revisiting any issue of fact

or law passed upon and determined by a court of competent jurisdiction. Id. at ¶ 20.

In Ferrante, the district court determined that the officer’s actions were not

malicious and were in good faith.

{¶ 64} In contrast, the district court in this case determined there were

genuine questions of material fact surrounding White’s continued prosecution after

it became clear that there was no longer probable cause to prosecute him. The court

provided:

White has presented sufficient evidence to create a genuine dispute of fact as to whether Kubas and Santiago deliberately falsified documents that could foreseeably contribute to a decision to continue to prosecute White.

White, No. l:17-cv-1165 J.E. at 43.

{¶ 65} In this case, the issue of whether a genuine issue of material fact,

concerning White’s continued prosecution, remains, was passed upon and

determined by the district court. The district court made a legal determination that

a genuine dispute of fact indeed existed, concerning probable cause to continue

prosecuting White. Consequently, collateral estoppel precludes us from revisiting

this issue. Accordingly, I would find that we must accept the district court’s finding

that White offered sufficient evidence of a genuine issue of material fact that would create an exception to immunity for the officers. As articulated by the district court,

questions of fact are resolved by the trier of fact. Id. at 26.

{¶ 66} Furthermore, in Ferrante, the district court specifically found that the

officers’ actions were not malicious or sadistic and were in good faith. When the

district court’s findings were considered in state court, under R.C. 2744.03(A)(6),

no exceptions to immunity applied. Therefore, summary judgment was proper. On

the other hand, here, the district court did not pass on or determine the character of

the officers’ actions under R.C.2744.03(A)(6) at all. Instead, it granted summary

judgment on other grounds and remanded the matter for the trial court to

determine.

Political-Subdivision-Employee Immunity

{¶ 67} R.C. 2744.03(A)(6) generally immunizes employees of political

subdivisions performing governmental functions, unless: 1) the employee acts

manifestly outside the scope of official responsibilities; 2) the employee acts with

malicious purpose, in bad faith, or in a wanton or reckless manner; or 3) another

Revised Code provision expressly imposes civil liability. Whether an individual

acted manifestly outside the scope of employment, and whether the employee acted

with malicious purpose, in bad faith, or in a wanton or reckless manner generally

are questions of fact. E.g., Clark v. Campbell, 2020-Ohio-3333, ¶ 32 (4th Dist.).

Malicious Prosecution, False Arrest, and False Imprisonment

{¶ 68} White’s overlapping state and federal law claims against the

individual defendants are malicious prosecution, false arrest, and false imprisonment. The federal malicious prosecution claims were disposed of in

summary judgment by the district court. The elements required to satisfy federal

malicious prosecution claims involving Fourth Amendment rights, pursuant to 42

U.S.C. 1983, are distinguishable from those required to satisfy malicious

prosecution claims under Ohio law.

{¶ 69} Federal malicious prosecution claims require the plaintiff to prove (1)

that a criminal prosecution was initiated against him, (2) that the defendant made,

influenced, or participated in the decision to prosecute, (3) there was a lack of

probable cause for the criminal prosecution, and (4) the plaintiff suffered a

deprivation of liberty because of the legal proceedings. Gregory v. Louisville, 444

F.3d 725, 748-750 (6th Cir. 2006).

{¶ 70} On the other hand, Ohio law requires a plaintiff alleging malicious

prosecution to prove the defendant acted with (1) malice in instituting or continuing

the prosecution, (2) there was a lack of probable cause, and (3) the prosecution

terminated in favor of the accused. Trussell v. Gen. Motors Corp., 53 Ohio St.3d

142, 144 (1990).

{¶ 71} The elements of false arrest and false imprisonment claims are

essentially the same. Both require the (1) intentional detention of a person and (2)

unlawfulness of the detention. Ficklin v. Home Depot U.S.A., Inc., 2010-Ohio-5601,

¶ 34 (8th Dist. 2005). A valid arrest warrant issued by a court is a complete defense

to an action for false arrest or false imprisonment. McFarland v. Shirkey, 106 Ohio

App. 517, 524 (10th Dist. 1958). However, this defense is not available if an officer, in obtaining the arrest warrant, (1) knowingly and deliberately, or with reckless

disregard for the truth, made false statements or omissions and 2) the false

statements or omissions were material, or necessary, to the finding of probable

cause. E.g., Meekins v. Oberlin, 2019-Ohio-2825, ¶ 49 (8th Dist.).

{¶ 72} During the bindover hearing, the court learned that Officers Kubas

and Santiago were accused of suppressing exculpatory evidence during the photo

array process. Furthermore, witness testimony indicated the witnesses were

instructed not to circle identifications of a suspect other than White. The juvenile

court specifically found no probable cause that White was part of the C.A.’s home

invasion; however, it did not dismiss the case. When the district court analyzed

probable cause for purposes of summary judgment on White’s federal claims, it

found that White had presented sufficient evidence to create a genuine dispute of

fact as to whether Kubas and Santiago deliberately falsified documents that could

foreseeably contribute to a decision to continue to prosecute White. The district

court determined that White’s evidence was clearly sufficient to establish a genuine

issue of material fact regarding whether Kubas and Santiago’s actions were

deliberate.

{¶ 73} Despite these findings, the district court granted summary judgment

in favor of Kubas and Santiago on the federal malicious prosecution claims. The

court explained that White’s malicious prosecution claims against Kubas and

Santiago failed not because there was sufficient probable cause to continue prosecuting White, but because there was no evidence that Kubas and Santiago’s

alleged actions “actually influenced White’s continued prosecution and detention.”

{¶ 74} State malicious prosecution claims do not require such findings. “[I]n

an action for malicious prosecution, the want of probable cause is the gist of the

action.” E.g., Edvon v. Morales, 2018-Ohio-5171, ¶ 24 (8th Dist.), quoting

Melanowski v. Judy, 102 Ohio St. 153 (1921), paragraph one of the syllabus. “If such

be proven, the legal inference may be drawn that the proceedings were actuated by

malice.” Id. Moreover, concerning Kubas’s and Santiago’s actions, the district court

found that “White’s evidence is clearly sufficient to establish a genuine issue of fact.

And if such exculpatory evidence was withheld, it is foreseeable that it would

influence the decision of whether to prosecute White.” White, No. l:17-cv-1165 J.E.

at 44.

{¶ 75} The district court did not resolve these disputed factual issues. In

support of its decision to deny supplemental jurisdiction, the district court explicitly

recognized the potential for overlap of its probable-cause analysis related to White’s

arrest; not his continued detention. Id. at 54. The court explained that probable-

cause determinations are a mixed question of law and fact. Id. at 26. The court

resolves probable cause questions of law, and the trier of fact resolves issues of

disputed fact that are material to a probable-cause determination. Id.

{¶ 76} In the instant case, the district court found that White had presented

sufficient evidence to create a genuine dispute of a material fact that could have

contributed to a decision to continue prosecuting him. Id. at 43. When disputed factual issues underlying probable cause exist, the issues must be submitted to a jury

for a determination of the appropriate facts. Morrison v. Horseshoe Casino, 2020-

Ohio-4131, ¶ 50 (8th Dist.), quoting Hale v. Kart, 396 F.3d 721, 728 (6th Cir. 2005.)

At no point in its opinion does the district court make a finding that probable cause

existed to continue White’s prosecution after the bindover hearing. Consequently,

collateral estoppel does not preclude the trial court from submitting to a jury the

genuine issues of material fact underlying White’s claims for malicious prosecution,

false arrest, and false imprisonment against Kubas and Santiago. Therefore, I would

find that the trial court properly denied summary judgment on White’s state-law

malicious prosecution, false arrest, and false imprisonment claims. I would affirm

the trial court’s denial of summary judgment on Claims 6, 7, and 8 against the

Officers and Det. Lam.

Intimidation and Civil Liability for Criminal Acts

{¶ 77} I would also affirm the trial court’s judgment regarding intimidation

and civil liability for criminal acts. White also asserts claims under R.C. 2921.03

(intimidation) and R.C. 2307.60 (civil liability for criminal acts). The Officers and

Lam argue the trial court erred in denying summary judgment because they are

entitled to immunity as employees of a political subdivision, under R.C.

2744.03(A)(6). White alleges that appellants filed materially false or fraudulent

writings (e.g., arrest affidavits, photo-lineup materials) intending to influence or obstruct justice, thus violating R.C. 2921.03 and 2921.45. White further contends

these violations support a civil remedy under R.C. 2307.60(A)(1). The federal court

expressly declined to address these claims, noting they raised “numerous purely

state law issues” and possible statute-of-limitations questions unique to Ohio law.

{¶ 78} The Officers and Det. Lam argue that White has abandoned these

claims. But the record reflects extensive discovery and briefing. The trial court

concluded there were genuine issues of material fact precluding summary judgment,

and I find no indication that White affirmatively abandoned or conceded those

claims. Furthermore, as previously addressed, the district court made no findings

regarding whether any of the Officers or Lam acted with malicious purpose, in bad

faith, or in a wanton or reckless manner. Because the federal court did not address

these claims, collateral estoppel does not preclude the trial court from determining

that there are genuine issues of material fact for White’s claims of intimidation and

civil liability for criminal-acts claims. Accordingly, the employees’ entitlement to

immunity under R.C. 2744.03(A)(6) is a question for the trier of fact.

{¶ 79} I would affirm the trial court’s judgment denying summary judgment

on Claims 9 and 10, intimidation and civil liability for criminal acts and overrule the

fourth assignment of error.