IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Gerry Ruff-El, :

Plaintiff, :

v. : Case No. 2:11-cv-618

Nicholas Financial, Inc., : Magistrate Judge Kemp

et al.,

Defendants. :

OPINION AND ORDER

This case, in which all parties have consented to

disposition by the Magistrate Judge, see 28 U.S.C. §636(c), is

before the Court to consider the motion for summary judgment

filed by the City defendants. Mr. Ruff-El has not responded to

this motion, nor has he requested any extension of time for doing

so and the time to respond has now passed. For the following

reasons, the motion for summary judgment (#79) will be granted. 

Further, all other pending motions, the majority of which have

been filed by the City defendants, will be denied as moot, and

this case will be dismissed. 

I. Background

Plaintiff Gerry Ruff-El filed this action as a result of the

attempted seizure of his property by individuals believed to be

agents of defendant Nicholas Financial, Inc. In addition to

Nicholas Financial, the complaint named as defendants Todd

Stonewall, Peter L. Vosotas, the Columbus Police Department and

several police officers including then Chief of Police Walter L.

Distelweig, Travis D. Fisher, Joshua S. Daugherty, Lisa M. Ickes,

Austin C. Summers, Matt E. Harris, Larry E. Ferguson, and John A.

Sullivan (the City defendants), Gregory Green and Gregory Swartz. 

Mr. Ruff-El failed to complete service with respect to Mr. Green

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and Mr. Swartz.

On January 26, 2012, the Court dismissed all claims against

Todd Stonewall, Nicholas Financial, Inc. and Peter L. Vosotas

(the Nicholas defendants) in response to their motion. In

dismissing these claims, the Court noted that Mr. Ruff-El had

failed to state a claim against these defendants under 42 U.S.C.

§1983 because they were private parties who could not be

considered state actors. Further, the Court dismissed Mr. RuffEl’s claim under 42 U.S.C. §1985(3) because he had failed to

allege that any violations were motivated by class-based animus. 

With respect to Mr. Ruff-El’s claims for violations of federal

criminal statutes, 18 U.S.C. §242 and §1652, the Court dismissed

these claims because no private right of action in favor of

private individuals exists. Because Mr. Ruff-El had failed to

state a federal claim and no independent jurisdiction existed

over his state law claims, the Court dismissed the state law

claims without prejudice. Mr. Ruff-El’s motion for

reconsideration of this order, filed April 4, 2012, was denied. 

On the basis of that order, the City defendants moved for

dismissal of Mr. Ruff-El’s claims under 42 U.S.C. §1985 and 18

U.S.C. §242 and §1652 against them. The Court granted this

motion by order dated March 14, 2012. 

On February 10, 2012, Mr. Ruff-El filed a motion to amend

his complaint. In that filing, Mr. Ruff-El again sought to

assert claims under 42 U.S.C. §1983 and 18 U.S.C. §242 and §1652

against the Nicholas defendants. He also sought to assert a

claim under the Fair Debt Collection Practices Act, 15 U.S.C.

1692d and various state law claims. Further, he sought to

include an additional Nicholas Financial employee, Ralph

Finkenbrink, as a defendant. Mr. Ruff-El’s motion to amend was

denied by order dated March 22, 2012. 

On August, 8, 2012, Mr. Ruff-El voluntarily dismissed his

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claims against Mr. Green and Mr. Swartz. Consequently, the only

parties remaining in this case are the City defendants. Further,

the only remaining claims against these defendants are a claim

under 42 U.S.C. §1983 and various state law claims.

II. Legal Standard

 Summary judgment is not a substitute for a trial when

facts material to the Court's ultimate resolution of the case

are in dispute. It may be rendered only when appropriate

evidentiary materials, as described in Fed. R. Civ. P. 56(c),

demonstrate the absence of a material factual dispute and the

moving party is entitled to judgment as a matter of law.

Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464

(1962). The moving party bears the burden of demonstrating

that no material facts are in dispute, and the evidence

submitted must be viewed in the light most favorable to the

nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970). Additionally, the Court must draw all reasonable

inferences from that evidence in favor of the nonmoving

party. United States v. Diebold, Inc., 369 U.S. 654 (1962).

The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in

support of any material element of a claim or defense on

which that party would bear the burden of proof at trial,

even if the moving party has not submitted evidence to negate

the existence of that material fact. See Celotex Corp. v.

Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242 (1986). Of course, since "a party seeking

summary judgment ... bears the initial responsibility of

informing the district court of the basis for its motion, and

identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact," 

Celotex, 477 U.S. at 323, the responding party is only required

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to respond to those issues clearly identified by the moving party

as being subject to the motion. It is with these standards in

mind that the instant motion must be decided.

III. Analysis

As noted above, Mr. Ruff-El has not responded to the motion.

A non-movant's failure to respond to a motion for summary

judgment does not itself warrant a grant of summary judgment in

the moving party's favor. Federal Rule of Civil Procedure 56(e)

provides:

e) If a party fails to properly support an assertion of

fact or fails to properly address another party's

assertion of fact as required by Rule 56(c), the court

may:

....

(2) consider the fact undisputed for purposes of the

motion;

(3) grant summary judgment if the motion and supporting

materials—including the facts considered

undisputed—show that the movant is entitled to it;

It is well-settled that, “[a] party is never required to

respond to a motion for summary judgment in order to prevail

since the burden of establishing the nonexistence of a material

factual dispute always rests with the movant.” Smith v. Hudson,

600 F.2d 60, 64 (6th Cir. 1979) (citing Adickes v. S.H. Kress &

Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). That

is, the non-movant's failure to respond does not relieve the

movant of its burden to establish that “the moving party is

entitled to [a judgment as a matter of law .]” Fed.R.Civ.P.

56(e)(3); see also Scipio v. Sony Music Entm't, Inc., 173 F.

App'x 385, 393 (6th Cir. 2006). As a result, Mr. Ruff-El’s

failure to respond, standing alone, is not determinative of

whether summary judgment is appropriate. Accordingly, the Court

will examine the City defendants’ motion and supporting materials

to determine whether they are entitled to summary judgment.

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A. Facts

In support of their motion, the City defendants have

submitted a significant amount of evidentiary material. This

material includes an affidavit from every named City defendant

with the exception of former Police Chief Distelzweig and

affidavits from two police officers responding to the incident

giving rise to the complaint who are not named as defendants. 

They have also submitted various documents which would have been

prepared at or near the time of the incident and are documents

kept in the regular course of the Columbus Police Department’s

operations. Finally, they have submitted a compact disc

containing several audio files. As noted above, Mr. Ruff-El has

not responded to the motion for summary judgment and has not

filed any evidentiary material setting forth any facts which

could be considered by this Court. Consequently, the following

facts, taken from the City defendants’ exhibits, are undisputed. 

On June 26, 2011, Gregory Green and Gregory Swartz arrived

at Mr. Ruff-El’s residence to repossess his car. A disagreement

over the necessary paperwork culminated in a physical attack on

Mr. Green. Mr. Green required immediate medical attention and

was transported by ambulance to a hospital. See City Defendants’

Exhibit 12.

 Mr. Ruff-El and Mr. Swartz called 911. Officer Shana Reader

of the Columbus Police Department, who is not named as a

defendant in this case, was the first police officer to arrive on

the scene. See Reader Affidavit ¶29. Through her initial

investigation, she concluded that Mr. Ruff-El had either

assaulted or feloniously assaulted Mr. Green. Id. at ¶51. As a

result, she informed Mr. Ruff-El he would be detained during her

investigation and secured him in the back of her cruiser without

force. Id. at ¶¶42-44. When Columbus Police Officer Marcus

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Miller arrived, he decided to handcuff Mr. Ruff-El for the

remainder of the investigation. See Miller Affidavit ¶33.

Officer Miller also is not named as a defendant in this action.

Based on the results of Mr. Green’s assessment at the

hospital, detectives from the Columbus Assault Squad chose not to

treat the matter as a felonious assault. Rather, they left it to

the patrol officers to determine whether to arrest Mr. Ruff-El

and file misdemeanor assault charges against him or whether to

release him and advise Mr. Green of the process for filing such

charges himself. The officers chose to release Mr. Ruff-El

without a formal arrest. See Reader Affidavit ¶¶74-78, Miller

Affidavit ¶¶47-51, Daugherty Affidavit ¶¶29-32. During this

time, Mr. Ruff-El was detained for approximately 90 minutes but

not more than two hours. See Reader Affidavit ¶¶53-56. 

Officer Josh Daugherty, named as a defendant, arrived on the

scene some time after Mr. Ruff-El had been detained in the back

of Officer Reader’s cruiser. See Daugherty Affidavit ¶27. 

Officer Daugherty was not involved in any decision to detain or

handcuff Mr. Ruff-El. Id. at ¶¶27-28. He was present when

Officers Miller and Reader decided they would not be filing

assault charges against Mr. Ruff-El but instead would be leaving

that decision to Mr. Green. Id. at ¶30. He witnessed Mr. RuffEl being removed from the cruiser and having his handcuffs

removed but does not believe he had any physical contact with Mr.

Ruff-El. Id. at ¶32.

Officer Lisa Ickes, named as a defendant, also arrived on

the scene some time after Mr. Ruff-El had been detained in the

back of Officer Reader’s cruiser. See Ickes Affidavit ¶¶29-30. 

During the fifteen minutes she was there, Mr. Ruff-El was not

handcuffed but was making a great deal of noise. Id. at ¶31,

¶34. When another officer arrived on the scene, Officer Reader

informed her that she could leave. Id. at 38. She took no part

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in any decisions regarding, nor had any physical contact with,

Mr. Ruff-El. Id. at ¶¶41-44. 

Officer Austin Summers, named as a defendant, did not have

any contact with Mr. Ruff-El in connection with the events on

June 26, 2011. His involvement was limited to checking on Mr.

Green’s condition at the hospital. See Summers Affidavit ¶18. 

Similarly, Officer Travis Fisher, named as a defendant, did not

have any contact with Mr. Ruff-El. While he was originally

dispatched to the incident, six minutes later while en route, he

was cleared from the run. See Fisher Affidavit ¶16. 

Further, Columbus Police Sergeants Larry Ferguson, John

Sullivan, and Matt Harris and former Columbus Police Chief Walter

Distelzweig had no involvement with the incident on June 26,

2011. See Reader Affidavit ¶¶82-85. Sgt. Ferguson is the direct

supervisor of Officers Daugherty and Summers and approved the

report prepared by Officer Miller. See Ferguson Affidavit ¶¶31-

32. Sgt. Sullivan was not on duty on that day, but had he been

he would have been the direct supervisor of Officer Ickes. See

Sullivan Affidavit ¶15, ¶31. Similarly, Sgt. Harris was not on

duty that day, but had he been he would have been the direct

supervisor of Officer Fisher. See Harris Affidavit ¶15, ¶31. 

B. The Parties’ Positions

In the complaint, Mr. Ruff-El states his §1983 claim in this

way:

Second Claim for relief: VIOLATION OF 42 U.S.C. 

SEC. 1983

Plaintiff restates and reiterates all of the

foregoing paragraphs of this complaint as if set forth

in full at his point.

At all relevant times herein, Plaintiff had a right

under the due process and equal protection clauses of

the state and federal constitutions not to be deprived

of his constitutionally protected interest in his

property.

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Defendants Nicholas Financial Inc. Attempted to take

plaintiff property without due process of law.

Defendant (Columbus police department and its officer)

did not come to the aid of Pl.

Defendant (Columbus police department and its officer)

did not give plaintiff equal protect of the law.

Defendants denied P1 rights, privileges, or immunities

secured by the United States Constitution and State

Constitution. 

P1 deprived of his rights to equal protection of all

the laws 

Plaintiff was deprived of due process of law.

Plaintiff was deprived of life liberty and happiness.

Pl was harmed, has incurred considerable legal debt

which would not otherwise have been incurred.

Pl has suffered the loss of confidence in and feelings

of betrayal by the justice system, shock, and emotional

scarring, all compensable as emotional distress, and

other damages.

Also relevant for purposes of the current summary judgment

motion is the following allegation found on page four of the

complaint under the heading “General Facts,”

Columbus Police Officer then place plaintiff under

arrest. Plaintiff remained under arrest for about one

hour.

Taking all of these allegations together, the City

defendants construe the complaint as attempting to assert a §1983

claim based on an alleged failure to prevent harm, deprivation of

property, a Fourth Amendment violation, and possibly excessive

use of force. They argue that Mr. Ruff-El cannot succeed on his

§1983 claim for several reasons. First, they contend that no

constitutional deprivation occurred here. In support of this

position, they argue that there is no federal right to

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assistance, Mr. Ruff-El was not deprived of his property on June

26, 2011, there was probable cause to arrest him, and no force,

excessive or otherwise, was used against him. Second, they

contend that the City of Columbus is not subject to municipal

liability because there was no deprivation and there is no

evidence that any alleged deprivation was the result of a

municipal custom, policy, or practice. Third, they assert that

the individual defendants cannot be held liable in their official

capacities nor is there any proof of personal involvement such

that they could be held liable in their personal capacities. 

Fourth, they argue that Mr. Ruff-El cannot prevail against

certain defendants under a supervisory liability theory. 

Finally, they contend that they are entitled to qualified

immunity. With respect to Mr. Ruff-El’s state law claims, the

City defendants recognize that the Court would likely decline to

exercise supplemental jurisdiction over these claims if the §1983

claim is dismissed, but set forth a number of reasons why the

claims cannot survive summary judgment.

C. Mr. Ruff-El’s §1983 Claim

To maintain an action under 42 U.S.C. §1983, a plaintiff

must demonstrate two elements: (1) that the alleged conduct was

committed by a person acting under color of state law; and (2)

that this conduct deprived the plaintiff of rights, privileges,

or immunities secured by the Constitution or laws of the United

States. Graham v. NCAA, 804 F.2d 953, 957 (6th Cir. 1986),

citing Parratt v. Taylor, 451 U.S. 527, 535 (1981). As set forth

below, Mr. Ruff-El has failed to create any genuine issue of

material fact with respect to the alleged deprivation of any

constitutional rights. 

To the extent, as defendants suggest, that Mr. Ruff-El is

attempting to set forth a claim that the police were required to

assist him in defending the alleged repossession of his car,

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“[u]nless the police have a ‘special relationship’ with the

victim, the victim has no constitutional right to have the police

... intervene to protect him from the actions of private actors.” 

Weeks v. Portage County Executive Offices, 235 F.3d 275 (6th Cir.

2000). Moreover, the undisputed facts demonstrate that the

police responded to the incident at Mr. Ruff-El’s following the

911 call. Consequently, the motion for summary judgment will be

granted as to any failure to assist claim.

Further, Mr. Ruff-El has not raised a genuine issue of

material fact regarding any deprivation of his property. A

plaintiff asserting a Fourteenth Amendment property deprivation

claim must demonstrate that it resulted from either: “(1) an

established state procedure that itself violates due process

rights, or (2) a ‘random and unauthorized act’ causing a loss for

which available state remedies would not adequately compensate

the plaintiff.” Warren v. City of Athens, 411 F.3d 697, 709 (6th

Cir. 2005), quoting Macene v. MJW, Inc., 951 F.2d 700, 706 (6th

Cir. 1991). According to the City defendants, Mr. Ruff-El was

not deprived of his car on June 26, 2011. Mr. Ruff-El has not

disputed this fact nor has he come forward with any other

evidence demonstrating the deprivation of any property as a

result of the incident, let alone any deprivation by anyone

acting under color of state law as required to prevail on a claim

brought under §1983. Consequently, the motion for summary

judgment will be granted as to any due process claim.

The City defendants contend, that, at least with respect to

them, the focus of Mr. Ruff-El’s 1983 claim seems to be his

belief that he was arrested without probable cause. Certainly,

any arrest without probable cause violates the Fourth Amendment. 

Crockett v. Cumberland College, 316 F.3d 571, 580 (6th Cir.2003)

citing Klein v. Long, 275 F.3d 544, 550 (6th Cir. 2001). “An

officer has probable cause when ‘the facts and circumstances

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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, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959)); see also

Radvansky v. City of Olmstead Falls, 395 F.3d 291, 305 (6th Cir.

2005) (an officer has probable cause when he discovers reasonably

reliable information that a suspect has committed a crime)

(internal citations omitted). The probable cause analysis is

performed “from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Klein,

275 F.3d at 550 (citation and internal quotation marks omitted). 

In his complaint, Mr. Ruff-El asserts that he was arrested

and remained under arrest for approximately one hour. For

purposes of their motion for summary judgment, the City

defendants do not dispute Mr. Ruff-El’s belief that he was

arrested. 

“‘Whether an officer is authorized to make an arrest

ordinarily depends, in the first instance, on state law.’”

Logsdon v. Hains, 492 F.3d 334, 341 (6th Cir. 2007), quoting

Michigan v. DeFillippo, 443 U.S. 31, 36 (1979). According to

Officer Reader’s affidavit, she detained Mr. Ruff-El based on her

conclusion that Mr. Ruff-El had committed an assault on Mr.

Green. Reader Affidavit at ¶42. In Ohio, a person commits

assault by knowingly or recklessly causing or attempting to cause

physical harm to another. O.R.C. §2903.13. The causing or

attempted causing of serious physical harm constitutes felonious

assault. O.R.C. §2903.11. Consequently, Officer Reader had

probable cause to arrest Mr. Ruff-El if, on the basis of the

facts known to her, she could reasonably conclude that Mr. RuffEl assaulted Mr. Green.

In support of their position that Officer Reader had the

required probable cause, the City defendants detail 24 facts

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known by Officer Reader prior to and during her time on the scene

from which she reasonably concluded that Mr. Ruff-El had

assaulted Mr. Green. In her affidavit, Officer Reader summarizes

the circumstances she encountered leading her to detain Mr. RuffEl as follows:

41. At the time, I had been presented with: (a) victim

who had been beaten so severely that he had fluid

leaking from his head and required immediate hospital

attention; (b) a suspect who was in a hostile and

agitated state and who had apparently inflicted the

victim’s injuries with his bare hands; (c) a suspect

who had removed evidence from the scene; (d) a suspect

who had at least indicated a willingness to remove

himself from the scene. 

As noted above, Mr. Ruff-El has provided no evidence to

dispute Officer Reader’s description of the information on which

she based her decision to detain, or, from Mr. Ruff-El’s

perspective, arrest him. The facts presented by Officer Reader,

even construed in the light most favorable to Mr. Ruff-El,

provide a basis on which she reasonably could conclude that Mr.

Ruff-El had committed an assault. Because no genuine issue of

material fact exists on this issue, the motion for summary

judgment will be granted as to any Fourth Amendment claim

asserted by Mr. Ruff-El.

The City defendants also construe Mr. Ruff-El’s complaint as

attempting to state a claim of excessive force. To the extent

that Mr. Ruff-El’s complaint can be read in this way, both

Officers Reader and Miller state in their affidavits that they

did not employ any force during the incident. See Reader

Affidavit §§40-44, 61-63; Miller Affidavit §§33-36. Mr. Ruff-El

has presented no evidence to the contrary. Consequently, to the

extent that Mr. Ruff-El may be suggesting he was subjected to

excessive force, the motion for summary judgment will be granted.

Finally, the Court notes that Mr. Ruff-El refers, without

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any specificity, to a violation of his equal protection rights in

his §1983 claim. “The central purpose of the Equal Protection

Clause of the Fourteenth Amendment is the prevention of official

conduct discriminating on the basis of race.” Washington v.

Davis, 426 U.S. 229, 239 (1976). It prohibits the States from

making distinctions that burden a fundamental right, target a

suspect class, or intentionally treat one differently from others

similarly situated without any rational basis for the difference. 

Vacco v. Quill, 521 U.S. 793, 799 (1997). In order to prevail on

any equal protection claim against the City defendants, Mr. RuffEl must show that they acted with a discriminatory purpose, which

means proving that they undertook a course of action “because of,

not merely in spite of, the action's adverse effects upon an

identifiable group.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)

(internal quotation marks omitted). Mr. Ruff-El has not alleged

any discriminatory purpose, let alone come forward with any

evidence of such purpose, as required to prevail on an equal

protection claim. Consequently, the City defendants are entitled

to summary judgment on any equal protection claim. 

In summary, Mr. Ruff-El has failed to raise any genuine

issue of material fact as to the deprivation of his

Constitutional rights as required to succeed under §1983. 

Because the motion for summary judgment will be granted on this

ground, the Court will not consider the other arguments raised by

the City defendants in defense of Mr. Ruff-El’s §1983 claim. 

IV. State Law Claims

Mr. Ruff-El also has set forth a number of state law tort

claims in his complaint including breach of fiduciary duty,

assault, battery, and fraud. To the extent that any of these

state law claims are directed to the City defendants, because the

motion for summary judgment will be granted as to the §1983

claim, the Court will decline to exercise supplemental

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jurisdiction over these claims. See Musson Theatrical, Inc. v.

Fed. Express Corp., 89 F.3d 1244, 1254–55 (6th Cir. 1996) 

(“When all federal claims are dismissed before trial, the balance

of considerations usually will point to dismissing the state law

claims”). 

V. Remaining Motions

The City defendants have three discovery motions pending

including a motion to compel or motion for sanctions based on Mr.

Ruff-El’s failure to participate in discovery (#72), a motion to

deem certain matters admitted (#73), and a motion for sanctions

based on Mr. Ruff-El’s failure to attend his scheduled deposition

(#75). Also pending is Mr. Ruff-El’s motion to strike (#86). 

Because the motion for summary judgment will be granted in its

entirety, all of these motions will be denied as moot.

VI. Conclusion

For the reasons stated above, the motion for summary

judgment (#79) is granted. All federal-law based claims are

dismissed with prejudice. The state law claims are dismissed

without prejudice. All other pending motions (#72, #73, #75 and

#86) are denied as moot. The Clerk is directed to enter judgment

in favor of the defendants. 

/s/ Terence P. Kemp 

United States Magistrate Judge

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