1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SHAWN UNDERWOOD, : 

 : 

 Plaintiff, : Case No. 2:11-CV-171 

 : 

 v. : JUDGE ALGENON L. MARBLEY 

 : 

FRANK WASKO, et al., : 

 : Magistrate Judge Mark R. Abel 

 Defendants. : 

OPINION AND ORDER 

I. INTRODUCTION 

 This matter is before the Court on cross-motions for partial summary judgment. Plaintiff 

Shawn Underwood (“Plaintiff” or “Underwood”) alleges the following claims pursuant to 42 

U.S.C. § 1983 in his first amended complaint: violation of his First Amendment right to free 

speech (Count I); false arrest in violation of his Fourth Amendment rights (Count II); malicious 

prosecution in violation of his Fourth Amendment rights (Count III); excessive force (Count IV); 

and municipal liability (or a Monell claim) (Count V). (Doc. 13.) Underwood moves for partial 

summary judgment on Counts I and II, (Doc. 18), and Defendants Franko Wasko and City of 

Columbus (collectively referred to as “Defendants”) move for partial summary judgment on 

Counts I, II, III, and V, (Doc. 21). Underwood’s claim for excessive force is not at issue in this 

opinion and order. 

 For the following reasons, Plaintiff’s motion for partial summary judgment is DENIED

and Defendants’ motion for partial summary judgment is GRANTED in part and DENIED in 

part. 

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II. BACKGROUND 

A. Factual History 

 On April 8, 2010 around 10:45 p.m., detectives from the Columbus Division of Police 

(“CPD”) Vice Unit were conducting an undercover operation related to the sale of liquor to 

minors at the Thirsty Whale, a bar located at 2081 Eakin Road in Columbus, Ohio. The 

detectives involved in the operation included Frank Wasko, Jeffrey Tabor, Mark Young, Gregory 

Murphy, Robert Cutshall, and Sergeant Michael Wilson. According to Wasko’s affidavit, the 

CPD had received complaints about the Thirsty Whale and had been sent to the bar on previous 

occasions for incidents involving gangs, guns, and fights. 

 When the CPD arrived at the Thirsty Whale, an underage confidential informant 

accompanied by a detective was sent into the bar. The bartender sold an alcoholic beverage to 

the underage informant, the informant obtained a sample of the alcoholic beverage for 

evidentiary purpose, and the informant and detective walked out of the bar. Wasko and Tabor 

entered the bar next, went behind the bar to issue a citation to the bartender for the underage sale, 

and identified themselves as police officers. According to affidavits by detectives Wasko and 

Tabor, there were 20–25 people in the bar. (Doc. 21 at 3) (citing Doc. 22 ¶ 9; Doc. 21-2 ¶ 7.) 

Plaintiff, relying on his own affidavit testimony and the affidavit testimony of Samantha 

Meadows, a female who was with Underwood the night of his arrest at the Thirsty Whale, asserts 

that there were no more than 15 people in the bar. (Doc. at 24 at 3) (citing Doc. 24-1 ¶ 7; Doc. 

24-2 ¶ 13.) 

 The parties disagree about what happened next. According to the Defendants, while 

Wasko and Tabor were speaking with the bartender to obtain information for the citation, 

Underwood started yelling “fuck the police,” “fuck you,” “what can they do?,” “there are only 

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two of them.” Defendants contend that while Underwood was yelling, he was simultaneously 

pointing at the officers and walking toward the bar where they were standing. Underwood was 

also gesturing with his arms in an attempt to get the other bar patrons riled-up, and his conduct 

caused some of the patrons to start yelling “fuck the police” and moving toward the bar. Wasko 

ordered Underwood to be quiet, but he refused and continued to yell obscenities at the officers. 

When Wasko advised Underwood that he was under arrest, he quickly ran out of the bar. Wasko 

ran after Underwood and arrested him in the parking lot. Underwood was charged with 

obstructing official business in violations of Columbus City Code 2321.311 and riot in violation 

of Columbus City Code 2317.03(A)(2).2 (Doc. 21 at 34) (citing Doc. 22 ¶¶ 10–16; Doc. 21-2 

¶¶ 8–11.) 

 Underwood presents affidavit evidence when opposing Defendants’ motion for partial 

summary judgment that contradicts Defendants’ affidavit evidence. Underwood contends that 

after spending a few minutes at the bar, plainclothes officers announced that they were closing 

the Thirsty Whale. Underwood and other patrons began heading toward the door to leave. As he 

was exiting the bar, Underwood threw up his hands and yelled, “fuck the police.” Meadows 

 

1

 Columbus City Code 2321.31, entitled “Obstructing official business,” states: 

(A) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the 

performance by a public official of any authorized act within his official capacity, shall do any act 

which hampers or impedes a public official in the performance of his lawful duties. 

(B) Whoever violates this section is guilty of obstructing official business, a misdemeanor of the 

second degree. 

2

 Columbus City Code 2317.03, entitled “Riot,” states, in pertinent part: 

(A) No person shall participate with four (4) or more others in a course of disorderly conduct in 

violation of Section 2317.11 [Disorderly conduct] the Columbus City Codes: 

. . . . 

(2) With purpose to intimidate a public official or employee into taking or refraining from 

official action, or with purpose to hinder, impede, or obstruct a function of 

government . . . . 

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asserts in her affidavit that no other patron began chanting, joining Underwood’s sentiment, or 

threatening the police. Underwood walked out to the parking lot, got into his minivan, started it, 

and shifted into reverse. 

Wasko followed Underwood out of the bar and confronted him in his car with gun drawn 

and aimed. Underwood contends Wasko’s hands were shaking with fury. Once Underwood put 

the minivan into park, Wasko opened the door and drug Underwood out of the minivan. Wasko 

swung Underwood around, threw him on the ground, and jumped on top of him, pinning 

Underwood to the pavement with his knee. Underwood shouted, “I’m not resisting!,” but Wasko 

placed the muzzle of his gun against the backside of Underwood’s head and stated, “I could blow 

your fucking brains out and no one would give a shit about it.” (Doc. 24 at 34) (citing Doc. 24-

1 ¶¶ 9–20; Doc. 24-2 ¶¶ 5–17.) 

Underwood also submitted a radio recording in which Sergeant Wilson requests patrol 

cars at the Thirsty Whale. The dispatcher asks Wilson: “What is going on? Fight or anything? 

Or . . .?” Wilson replies: “Well, we got . . . We . . . Partners in the bar and we got a couple 

running their mouths but they’re startin’ to leave.” (Doc. 18.) 

The criminal complaint charging Underwood with obstructing official business in 

violations of Columbus City Code 2321.31 reads in pertinent part: 

[Underwood] did: without privilege to do so and with purpose to obstruct and 

delay the performance by a public official to wit: Det. Wasko and Det. Tabor of 

an authorized act which was within the public officials capacity to wit: issue 

citation for underage sale of alcohol hamper and impede the public official in the 

performance of the public official’s lawful duties, to wit: began yelling and 

pointing “fuck you,” “fuck the police,” and began involving approximately 25 

people. 

(Doc. 13-3.) The criminal complaint charging Underwood with riot in violation of Columbus 

City Code 2317.03(A)(2) states in pertinent part: 

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[Underwood] did: participate with four or more others in a course of disorderly 

conduct in violation of section 2917.11, to wit: a bar with approx. 25 people who 

began yelling “fuck the police” and became agitated after Mr. Underwood began 

yelling “fuck the police,” “fuck you,” stood up and started pointing at officers 

with the purpose to hinder, impede, and obstruct a function of government, to wit: 

issue citation for sale of alcohol to underage person. 

(Doc. 13-2.) Finally, the arrest information reads: 

On April 8th at 10:48P the “B” company vice unit was working a covert 

assignment and was dealing with The Thirst Whale for several complaints. Det. 

Cutshall sent his CI into the bar with city funds in an attempt to purchase alcohol 

while being under age. The bartender did sell to the CI and while the detectives 

were attempting to arrest the bartender, the defendant began yelling “fuck the 

police” and pointing at the detectives. The defendant continued his yelling and 

got some of the other patrons to start yelling “fuck the police.” The defendant 

was told to stop and he yelled even louder “fuck the police” “what can they do.” 

Detective Wasko had to center his attention away from the bartender (his major 

reason for being inside). After the crowd began yelling, Det. Wasko told the 

defendant to come here that he was under arrest but he took off running, jumping 

into his vehicle and attempting to get away but was caught by Det. Wasko. The 

Defendant was charged with cited offenses and slated. 

(Doc. 13-1) (emphasis in original.) The charges against Underwood were dismissed when 

Wasko was unavailable to testify.

B. Procedural History 

 Underwood brought suit against Wasko, the CPD, and the City of Columbus on February 

24, 2011. (Doc. 2.) The CPD moved for judgment on the pleadings, arguing that it was not sui 

juris, and this Court granted that motion. (Doc. 8, 10.) Underwood filed his first amended 

complaint against Wasko and the City of Columbus thereafter, discussed infra Part I. (Doc. 13.) 

Underwood’s motion for partial summary judgment on Counts I and II was filed on January 17, 

2012, (Doc. 18), and the Defendants’ cross-motion on Counts I, II, III, and V was filed on 

February, 15, 2012, (Doc. 21). This Court held a hearing where both parties had the opportunity 

to be heard. The cross-motions for partial summary judgment are now ripe for review. 

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III. STANDARD OF REVIEW 

 Summary judgment is proper if “there is no genuine dispute as to any material fact.” Fed. 

R. Civ. P. 56(a). But “summary judgment will not lie if the . . . evidence is such that a 

reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, a court must 

construe the evidence in the light most favorable to the non-moving party. Matsushita Elec. 

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

 The movant, therefore, has the initial burden of establishing that there is no genuine issue 

of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Barnhart v. Pickrel, 

Schaeffer & Ebeling Co., 12 F.3d 1382, 138889 (6th Cir. 1993). The central inquiry is 

“whether the evidence presents sufficient disagreement to require submission to a jury or 

whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 

25152. If the moving party meets its burden, then the non-moving party is under an affirmative 

duty to point out specific facts in the record, which create a genuine issue of material fact. 

Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-moving party may not 

rest merely on allegations or denials in its own pleadings, see Celotex, 477 U.S. at 324, but must 

present “significant probative evidence” to show that there is more than “some metaphysical 

doubt as to the material facts,” Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 340 (6th Cir. 

1993). 

 “[A]t the summary judgment stage the judge’s function is not himself to weigh evidence 

and determine the truth of the matter but to determine whether there is a genuine issue for trial.” 

Anderson, 477 U.S. at 249. Moreover, a district court is not required to sift through the entire 

record to drum up facts that might support the nonmoving party’s claim. InterRoyal Corp. v. 

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Sponseller, 889 F.2d 108, 111 (6th Cir. 1989). Instead, the court may rely on the evidence called 

to its attention by the parties. Id.

The standard of review for cross-motions of summary judgment does not differ from the 

standard applied when a motion is filed by only one party to the litigation. Taft Broad. Co. v. 

United States, 929 F.2d 240, 248 (6th Cir. 1999). The Court “must evaluate each party’s motion 

on its own merits” and may not grant “summary judgment in favor of either party . . . if disputes 

remain as to material facts.” Id.

IV. LAW AND ANALYSIS

 This Court must resolve one threshold matter prior to analyzing the applicable law in this 

case. In his motion for partial summary judgment, Underwood states that “for the purpose of 

demonstrating that under either party’s account, Mr. Underwood is entitled to summary 

judgment, Mr. Underwood confines his recitation of the facts to those facts which are found in 

the records authored and recorded by Defendants.” (Doc. 18 at 12.) These records include the 

criminal complaints charging Underwood and the arrest information. The complaints and arrest 

information generally support Defendants’ account of the facts in this case, but, Defendants 

present affidavit evidence in their opposition to Underwood’s motion for partial summary 

judgment that provides additional detail about the incident at the Thirsty Whale. 

 When opposing Defendants’ motion for partial summary judgment, however, Underwood 

presents his own affidavit evidence that contradicts the facts in the criminal complaints and the 

arrest information. For example, the affidavits presented by Underwood indicate that he shouted 

“fuck the police” as he was walking out the door of the Thirsty Whale. (Doc. 24-1 ¶ 9–10; Doc. 

24-2 ¶ 14.) Meadows states in her affidavit that “[n]o civilian in the bar appeared affected by 

this statement” and “[n]o one chanted, joined the sentiment, or threatened the police.” (Doc. 24-

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2 ¶ 15.) In his opposition to Defendants’ motion for partial summary judgment, Underwood 

argues that because “[c]ross motions for summary judgment are to be considered separately,” he 

is under no obligation with respect Defendants’ motion to accept the facts in the criminal 

complaints and Arrest Information as true, although he is willing to do so for purposes of his 

motion for partial summary judgment. (Doc. 24 at 2) (citing Ferro Corp. v. Cookson Group, 

PLC, 585 F.3d 946, 950 (6th Cir. 2009)). 

 Underwood cannot have it both ways, and his assertion that he is willing to accept 

Defendant’s facts for the purpose of his own motion for partial summary judgment is 

disingenuous as he is picking and choosing the facts he accepts. This Court must consider the 

record as a whole. See Matsushita Elec. Indus., 475 U.S. at 350 (citing First Nat. Bank of Ariz. 

v. Cities Servs. Co., 391 U.S. 253, 289 (1968)) (considering the record as a whole when 

determining if there is a genuine issue for trial). The Court will not take notice of portions of the 

record to decide Defendants’ motion and ignore those same parts to decide Underwood’s motion. 

Furthermore, the Ferro Corp. case cited by Underwood to support his position, does not do so; 

rather, it stands merely for the propositions that “[t]he standard of review for cross-motions of 

summary judgment does not differ from the standard applied when a motion is filed by only one 

party to the litigation” and that “the court must evaluate each party’s motion on its own merits.” 

585 F.3d at 950 (citing Taft Broad Co., 929 F.2d at 248). This Court will, indeed, examine each 

party’s motion on its own merits, but when doing so, it will consider the record in its entirety. 

 Now, turning to the relevant legal analysis: to state a claim under § 1983, “a plaintiff 

must set forth facts that, when construed favorably, establish (1) the deprivation of a right 

secured by the Constitution or laws of the United States (2) caused by a person acting under the 

color of state law.” Miller v. Sanilac Cnty., 606 F.3d 240, 247 (6th Cir. 2010) (quoting Sigley v. 

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City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)). Section § 1983 “‘is not itself a 

source of substantive rights’ but merely provides ‘a method for vindicating federal rights 

elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 39394 (1989) (quoting Baker v. 

McCollan, 443 U.S. 137, 144 n. 3 (1979)). 

 There is no dispute that Wasko was acting under the color of state law on the night of 

Underwood’s arrest. The dispute is as to whether Underwood was deprived of his constitutional 

rights. 

A. First Amendment Free Speech Claim (Count I) 

Both parties have moved for summary judgment on Count I in Underwood’s first 

amended complaint for violation of his First Amendment right to free speech. 

Generally, “[t]here can be no doubt that the freedom to express disagreement with state 

action, without fear of reprisal based on the expression, is unequivocally among the protections 

provided by the First Amendment.” McCurdy v. Montgomery Cnty., 240 F.3d 512, 520 (6th Cir. 

2001). “The freedom of individuals verbally to oppose or challenge police action without 

thereby risking arrest is one of the principal characteristics by which we distinguish a free nation 

from a police state.” City of Houston v. Hill, 482 U.S. 451, 46263 (1987). 

 Certain “fighting words,” or words that “by their very utterance inflict injury or tend to 

incite an immediate breach of the peace,” however, are not protected by the First Amendment. 

Chaplinsky v. New Hampshire, 315 U.S. 568, 57172 (1942). Fighting words are those that are 

likely to “cause an average person to react thus causing a breach of the peace.” Sandul v. Larion, 

119 F.3d 1250, 1255 (6th Cir. 1997) (citing Chaplinsky, 315 U.S. 574). An onlooker would 

consider the words a “direct personal insult or an invitation to exchange fisticuffs.” Texas v. 

Johnson, 491 U.S. 397, 409 (1989). Nevertheless, this exception is “very limited because it is 

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inconsistent with the general principle of free speech recognized in our First Amendment 

jurisprudence.” Sandul, 119 F.3d at 1255; see Johnson, 491 U.S. at 408–09 (citing Terminiello 

v. Chicago, 337 U.S. 1, 4 (1949) (“[A] principal ‘function of free speech under our system of 

government is to invite dispute. It may indeed best serve its high purpose when it induces a 

condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to 

anger.’”)). 

 Moreover, “[a]bsent a more particularized and compelling reason for its actions, [a] State 

may not, consistently with the First and Fourteenth Amendments, make the simple public display 

. . . of [a] four-letter expletive a criminal offense.” Cohen v. California, 403 U.S. 15, 26 (1971). 

In Cohen, for example, the Supreme Court held that convicting a defendant who walked through 

a courthouse corridor wearing a jacket bearing the words “Fuck the Draft” was unconstitutional 

under the First and Fourteenth Amendments. Id. at 16–17, 26. 

 Underwood relies on Brown v. City of Warren to argue he was engaging in free, protected 

speech. 4:05-cv-2439, 2007 WL 188360 (N.D. Ohio Jan. 22, 2007). The Brown court held that 

where a young man yelled “fuck the police” and “you guys ain’t shit” in the middle of the street, 

there was no probable cause for the officers to arrest the man. Id. at *12, 10. There was no 

evidence that the young man “took any affirmative steps to interfere with the officers’ bike patrol 

duties”; rather, “the officers, on their own volition, broke off their conversation with the Mercer 

Place resident to pursue [the young man] solely because of the profanities he was shouting.” Id.

at *9. 

 Defendants argue that Underwood was engaging in more than mere speech because he 

was pointing at the officers, walking toward them in a threatening manner, and gesturing with his 

arms to get the other patrons in the Thirty Whale agitated. Defendants support their position 

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with affidavit testimony that Underwood’s behavior was successful in riling up the other bargoers because they started yelling “fuck the police” and walking toward the officers who were 

behind the bar talking with the bartenders. Defendants point out that there is case law explaining 

that although citizens must be given “considerable latitude . . . to express their views about the 

police and their activities,” if “speech transforms into verbal conduct, then this conduct can 

constitutionally be criminalized.” Patrizi v. Huff, 821 F.Supp.2d 926, 93233 (N.D. Ohio 2011) 

(citing Kaylor v. Rankin, 356 F.Supp.2d 839, 847 (N.D. Ohio 2005)). When a person continues 

to interfere with a police officer’s investigation and questioning of a third person, such verbal 

conduct is not entitled to First Amendment protection. King v. Ambs, 519 F.3d 607, 611 (6th 

Cir. 2008). Underwood’s behavior, Defendants’ argue, amounted to verbal conduct that can 

constitutionally be criminalized. 

 Both parties overlook additional instructive Circuit precedent. In Sandul, the defendant, 

who was riding passenger-side in a moving truck, leaned out of the vehicle as it passed abortion 

protesters and shouted “fuck you” while extending his middle finger at the group. 119 F.3d at 

1252. An officer who was talking with the protestors observed the defendant’s conduct, and, 

believing that it violated the city’s disorderly conduct ordinance, began pursuing the truck until it 

stopped in front of the defendant’s home. Id. The defendant was arrested and charged with 

disorderly conduct and felonious assault. Id.

 The Sandul court held that the defendant’s words did not rise to the level of fighting 

words and his “actions were not likely to inflict injury or to incite an immediate breach of the 

peace.” Id. at 1255. The court noted that the truck in which defendant was moving and traveling 

was on the opposite side of the street from the protest. Id. The incident was over in a matter of 

seconds. Id. Moreover, there was “no face-to-face contact between Sandul and the protesters,” 

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making it “inconceivable that Sandul’s fleeting actions and words would provoke the type of 

lawless action alluded to in Chaplinsky.” Id.; see also Greene v. Barber, 310 F.3d 889, 895–98 

(6th Cir. 2002) (finding that defendant’s characterization of a police officer as an “asshole” was 

insufficient to trigger the “fighting words” exception to the First Amendment); Perkins v. City of 

Gahanna, No. C2-99-533, 2000 WL 1459444, at *2–3 (S.D. Ohio Sept. 21, 2000) (Sargus, J.) 

(granting plaintiff’s motion for summary judgment on his § 1983 claims where he was arrested 

for telling an officer to “have a nice day” and pointing his middle finger at him as he was exiting 

the police station). 

When taken in a light most favorable to the non-moving party on each respective motion, 

as this Court must, summary judgment cannot be granted in favor of either party without 

improperly weighing the evidence. See Anderson, 477 U.S. at 249. If the Court were to adopt 

Defendants’ version of the facts, this case is more analogous to King. Defendants have presented 

evidence that Underwood not only yelled “fuck the police,” but also “what can they do?” and 

“there are only two of them.” While Underwood was yelling these profanities, according to 

Defendants’ affidavit evidence, he was also walking toward the bar and getting other bar patrons 

riled up. Some even also began yelling “fuck the police.” These facts tend to indicate that 

Underwood, like the defendant in King, was interfering with the officer’s questioning of a third 

party (here, the bartender), and consequently, his verbal conduct would not be entitled to First 

Amendment protection. 519 F.3d at 611; see also Brown v. Fick, No. 10–11330, 2011 WL 

589210, at *1–3, 5–6 (E.D. Mich. Feb. 10, 2011) (granting defendants’ motion for partial 

summary judgment on plaintiff’s fourth amendment claim that she was arrested without probable 

cause because plaintiff was arrested after interrupting officers who were trying to arrest her 

daughter who had fled from the officers). 

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 If this Court were to adopt Underwood’s version of the facts, however, this case would be 

more analogous to Brown and Sandul. According to Underwood’s affidavit evidence, he shouted 

“fuck the police” and threw his hands up as he exited the bar. Meadows’s affidavit indicates no 

other patron began chanting, joining his sentiment, or threatening the police. Underwood’s 

conduct in this scenario is akin to the conduct of the defendant in Brown who shouted “fuck the 

police” in the middle of the street, or the defendant in Sandul who yelled and gestured at the 

abortion protesters while sitting in the passenger side of a moving vehicle. None of these 

incidents would tend to “incite an immediate breach of the peace” because the person yelling the 

offensive phrase was removed from or leaving an area where he was likely to incite a breach of 

the peace. Chaplinsky, 315 U.S. at 57172. Merely “induc[ing] condition of unrest” or 

“stir[ing] people to anger” is not enough to remove speech from the protective shield of the First 

Amendment. See Johnson, 491 U.S. at 408–09. Moreover, Wasko followed Underwood out of 

the bar into the parking lot, but the other officer remained inside and finished giving the 

bartender a citation. In fact, Wasko was the only officer who ran after Underwood. Perhaps 

most importantly, the fact that Underwood was in his minivan in the parking lot when arrested 

him, lends strong support Underwood’s position that he was not engaged in any verbal conduct 

synonymous to the verbal conduct in King. 

 Underwood’s motion for partial summary judgment with respect to Count I is DENIED, 

as is Defendants’ cross-motion for partial summary judgment on Count I. 

B. False Arrest (Count II) 

 Both parties also move for summary judgment on Count II in Underwood’s first amended 

complaint for false arrest. 

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 In the context of a § 1983 action, “[a] false arrest claim under federal law requires a 

plaintiff to prove that the arresting officer lacked probable cause to arrest the plaintiff.” Voyticky 

v. Vill. of Timberlake, 412 F.3d 669, 677 (6th Cir. 2005); Fridley v. Horrighs, 291 F.3d 867, 872 

(6th Cir. 2002). “An officer has probable cause when ‘the facts and circumstances known to the 

officer warrant a prudent man in believing that an offense has been committed.’” Miller v. 

Sanilac Cnty., 606 F.3d 240, 248 (6th Cir. 2010) (quoting Henry v. United States, 361 U.S. 98, 

102 (1959)). An officer’s actions are measured by what a reasonable officer would have done 

under the same circumstances. Sandul, 119 F.3d at 1256. In a civil case, the plaintiff has the 

burden of proving an absence of probable cause. Fridley v. Horrighs, 291 F.3d 867, 872 (6th 

Cir. 2002). 

 Plaintiff argues that neither he nor anyone else in the bar did “anything physically 

menacing to the police, advocated violence, or attempted, by any means, to impede the arrest of 

the bartender.” (Doc. 18 at 9.) Underwood contends he was merely verbally criticizing the 

officers, which is conduct that does not amount to probable cause. Defendants rebut that there 

was probable cause that Underwood had violated Columbus City Code 2321.31 and 

2317.03(A)(2) because “Plaintiff’s conduct hampered and impeded Officer Wasko’s 

performance of his official law enforcement duties of investigating and issuing a citation to the 

bartender because his attention was drawn from the bartender to Plaintiff and, even after being 

ordered to be quiet, Plaintiff persisted with his behavior.” (Doc. 21 at 9.) 

 The Court runs into the same conundrum here as it did with Underwood’s First 

Amendment claim: summary judgment cannot be granted because there are genuine disputes of 

material fact. If this Court were to adopt Underwood’s version of the facts, probable cause 

would have been lacking as Underwood was merely yelling and demonstrating frustrating by 

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throwing his hands up as he exited the Thirsty Whale. Yet, if this Court were to adopt 

Defendants’ version of the facts, then there would be probable cause for Underwood’s arrest 

because, by yelling and pointing at the officers, Underwood was attempting to “prevent, obstruct, 

or delay the performance by a public official . . . in the performance of his lawful duties.” See 

Columbus City Code 2321.31. His verbal conduct could have interfered with the officers’ 

questioning of the bartender. See King, 519 F.3d at 611. 

 Because neither party has sustained its burden for purposes of summary judgment, 

Underwood’s motion for partial summary judgment on Count II is DENIED, as is Defendants’ 

motion for partial summary judgment on the same Count. 

C. Malicious Prosecution (Count III) 

 Defendants move for summary judgment on Plaintiff’s claim for malicious prosecution. 

 The Sixth Circuit “recognize[s] a separate constitutionally cognizable claim of malicious 

prosecution under the Fourth Amendment,” which “encompasses wrongful investigation, 

prosecution, conviction, and incarceration.” Barnes v. Wright, 449 F.3d 709, 71516 (2006). In 

Skyes v. Anderson, this Circuit articulated the elements of a §1983 malicious prosecution claim 

for the first time. 625 F.3d 294, 308 (6th Cir. 2010). To succeed on a malicious prosecution 

claim, a plaintiff must prove: (1) “that a criminal prosecution was initiated against the plaintiff 

and that the defendant made, influenced, or participated in the decision to prosecute”; (2) that 

there was “a lack of probable cause for the criminal prosecution”; (3) that “as a consequence of a 

legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure”; and 

(4) the criminal case must have been resolved in plaintiff’s favor. Id. at 30809. 

 Defendants rely on the same arguments they made with respect to Count II and argue that 

Underwood cannot prove the second element of his malicious prosecution claim because there 

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was probable cause for Officer Wasko to arrest Underwood. Defendants also attack the first 

element of Plaintiff’s malicious prosecution claim arguing that “there is no evidence that Officer 

Wasko did anything related to Plaintiff’s criminal prosecution other than sign the criminal 

complaints.” (Doc. 21 at 11.) Plaintiff rebuts that his prosecution was without probable cause, 

and that Wasko influenced and participated in the prosecution, as well as “was the initiatory of 

the prosecution and the prime moving force behind it.” (Doc. 24 at 17.) Underwood points to 

the facts that Wasko was the only officer who went after Underwood, pointed his gun at 

Underwood, threw Underwood on the ground, authored the criminal complaints against 

Underwood, was listed as an “officer complainant,” and caused the trial to be continued and 

ultimately dismissed because he did not show up. (Id.) 

 When the evidence is viewed in a light most favorable to the Underwood, it is evident 

that a “reasonable jury could return a verdict for” Underwood on his malicious prosecution 

claim. See Anderson, 477 U.S. at 248. Defendants have failed to sustain their burden of 

establishing that no genuine issue of material fact exists with respect to probable cause, as 

explained infra Part IV.B. With respect to the first element of Plaintiff’s malicious prosecution 

claim, admittedly, “[t]here is very little case law in this circuit discussing precisely what role an 

investigating officer must play in initiating a prosecution such that liability for malicious 

prosecution is warranted.” Anderson, 477 U.S. at 311. Nevertheless, case law does “indicate 

that an officer may be responsible for commencing a criminal proceeding against a plaintiff 

where the officer made, influenced, or participated in the decision to prosecute.” Id. (internal 

quotations omitted) (citing Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007)). Therefore, just 

because an officer did not make the decision to prosecute dose not “per se absolve” the officer 

from liability. Id. “Whether an officer influenced or participated in the decision to prosecute 

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hinges on the degree of the officer’s involvement and the nature of the officer’s actions. . . . The 

totality of the circumstances informs this factual determination.” Id. at 312 n.9 (citing Malley v. 

Briggs, 475 U.S. 335, 344–45 n.7 (1986)). 

 Underwood presented evidence from which a reasonable jury could conclude that Wasko 

influenced or participated in the decision to prosecute Underwood. Wasko was the only officer 

who arrested Underwood and thereafter issued the criminal complaints against Underwood. A 

jury could determine that Wasko’s account of the facts in the criminal complaint, given their 

contradictory nature to the facts in the affidavits presented by Underwood, stated “deliberate 

falsehood or showed reckless disregard for the truth,” and that the allegedly false or omitted 

information was material to the finding of probable cause. Anderson, 477 U.S. at 312 (citing 

Molnar v. Care House, 359 F. App’x 623, 627 (6th Cir. 2009)) (explaining that “in order to 

establish that a testifying officer was responsible for commencing a criminal proceeding for 

purposes of a malicious-prosecution claim, the Plaintiffs were required to present evidence that 

[the officer] ‘(1) stated a deliberate falsehood or showed reckless disregard for the truth [at the 

hearing] and (2) that he allegedly false or omitted information was material to the [court’s] 

finding of probable cause.”). Consequently, Defendants have failed to meet their burden of 

establishing that there is no genuine issue of material fact with respect to Underwood’s malicious 

prosecution claim. 

Defendants’ motion for partial summary judgment with respect to Count III is DENIED. 

D. Municipal Liability/Monell Claim (Count V)

 Defendants move for summary judgment on Plaintiff’s claim for municipal liability in 

Count V. 

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 In Monell v. Department of Social Services, the Supreme Court held that a municipality 

may be held liable under § 1983 for the unconstitutional acts of its employees if either a 

municipality’s official policy or one of its customs is the source of injury. 436 U.S. 658, 694 

(1978). A plaintiff must demonstrate that the official policy or custom in question is the 

“moving force” behind the constitutional violation; the existence of an official policy or custom 

cannot be demonstrated by the occurrence of the alleged constitutional violation itself. See City 

of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985). 

In order “to satisfy the Monell requirements, a plaintiff must identify the policy [or 

custom], connect the policy to the [government entity] itself and show that the particular injury 

was incurred because of the execution of that policy.” Garner v. Memphis Police Dept., 8 F.3d 

358, 364 (6th Cir. 1993). A municipal policy includes “a policy statement, ordinance, regulation, 

or decision adopted and promulgated.” Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 

F.3d 592, 607 (6th Cir. 2007) (quoting Monell, 436 U.S. at 690). 

Alleging a single decision by municipal policymakers, such as a legislative act or a 

decision by an official with final authority, can be sufficient for municipal liability to attach. 

Pembaur v. City of Cincinnati, 475 U.S. 469, 480–84 (1986). Alleging one specific incident by 

municipal employees resulting in a deprivation of rights, however, is generally insufficient; 

rather, a plaintiff must show the deprivation is a result of deliberate indifference or gross 

negligence on the part of the officials in charge, or conduct explicitly or implicitly authorized by 

a decision maker. City of Oklahoma City v. Tuttle, 471 U.S. 808, 821–24 (1985). 

The City of Columbus argues that “[a]lthough Plaintiff makes vague allegations in the 

Amended Complaint concerning custom or policy and failure to train, those allegations are 

merely recitations of case law, and Plaintiff does not identify any evidence pointing to such 

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custom or policy or failure to train.” (Doc. 21 at 11.) The City argues that as a result, it is 

entitled to summary judgment on this claim. Plaintiff rebuts that the City must prove “that it 

trained Officer Wasko in First Amendment law and the fact that he is not entitled to arrest and 

prosecute people whose constitutionally protected utterance annoy him.” (Doc. 24 at 19.) 

To support of failure to train claim, a plaintiff must prove: (1) the training program was 

inadequate for the tasks the officers must perform; (2) the inadequacy was the result of deliberate 

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

Ciminillo v. Streicher, 434 F.3d 461, 469 (6th Cir. 2006). Underwood has simply presented no 

evidence to support his claim that the City failed to train Wasko; rather, he simply makes 

conclusory statements that the City failed to adequately train Wasko. He identifies no City 

policy or custom as required under Monell. Consequently, the City’s motion for summary 

judgment with respect to Count V is GRANTED. 

E. Qualified Immunity 

 Defendants also argue Officer Wasko is entitled to qualified immunity. 

In civil damage actions arising out of government officials’ performance of discretionary 

functions, officials are generally entitled to qualified immunity from suit “insofar as their 

conduct does not violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) 

(citations omitted). To evaluate whether qualified immunity applies this Circuit evaluates 

whether the official violated a constitutional right and whether the impacted right is “clearly 

established.” See Pearson v. Callahan, 555 U.S. 223, 236 (2009). The order of this inquiry is 

not mandatory, nor does a court need to reach both steps of the analysis. Id.

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 The determination as to whether the right was “clearly established” “must be undertaken 

in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 

533 U.S. 194, 201 (2001). “The contours of the right must be sufficiently clear that a reasonable 

official would understand that what he is doing violates that right.” Anderson v. Ceighton, 483 

U.S. 635, 640 (1987). 

 The qualified immunity analysis turns on whether Underwood’s First Amendment right 

was violated. If a jury, weighing the evidence in this case, determines that Underwood’s speech 

and conduct was more analogous to verbal conduct under King or “fighting speech” under 

Chaplinsky, Wasko would be entitled to qualified immunity because a reasonable officer would 

understand that his conduct was not violating a clearly established constitutional right. 

Alternatively, if a jury decides that Underwood simply screamed “fuck the police” as he excited 

the bar, Wasko would not be entitled to qualified immunity as a reasonable officer would know 

that arresting Underwood for exercising his First Amendment right to free speech would violate 

a clearly established constitutional right. The issue in this case is not whether the right to speech 

freely is clearly established—for surely, it is—but rather whether Underwood’s speech was 

protected speech under the First Amendment. 

Thus, because a genuine issue of material fact exists as to whether Underwood’s First 

Amendment rights have been violated, Defendant Wasko’s motion for partial summary judgment 

on qualified immunity grounds is also DENIED. 

V. CONCLUSION 

 For the foregoing reasons, Plaintiff’s motion for partial summary is DENIED, and 

Defendants’ motion for partial summary judgment is GRANTED in part and DENIED in part. 

Specifically, the City of Columbus’s motion for partial summary judgment with respect to 

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Underwood’s claim for municipal liability (Count V) is GRANTED, and Defendants’ motion 

with respect to the other claims (Counts I, II, and III) is DENIED. 

 /s/Algenon L. Marbley__________ 

 ALGENON L. MARBLEY 

 United States District Court Judge 

DATE: September 17, 2012 

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