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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0290P (6th Cir.)

File Name: 04a0290p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

TAHLER MACBOYLE,

Plaintiff-Appellant,

v.

CITY OF PARMA, et al.,

Defendants-Appellees.

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No. 03-3784

Appeal from the United States District Court

for the Northern District of Ohio at Akron.

No. 02-01487—James Gwin, District Judge.

Argued: August 5, 2004

Decided and Filed: September 1, 2004 

Before: KENNEDY, SUTTON, and COOK, Circuit

Judges.

_________________

COUNSEL

ARGUED: Brent L. English, LAW OFFICE OF BRENT L.

ENGLISH, Cleveland, Ohio, for Appellant. Michael P.

Maloney, LAW OFFICE, Westlake, Ohio, for Appellees.

ON BRIEF: Brent L. English, LAW OFFICE OF BRENT

L. ENGLISH, Cleveland, Ohio, for Appellant. Michael P.

Maloney, LAW OFFICE, Westlake, Ohio, Timothy G.

2 MacBoyle v. City of Parma, et al. No. 03-3784

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Patrolmen Edward Pinc, Kenneth Chihil, Daniel Heinz, Daniel

Ciryak, Christopher Dillenbeck, Victor Beleske, Wayne Kresak, and

Joseph Duganier; and Sergeants James Blair and Gary Kuchta.

Dobeck, OFFICE OF THE LAW DIRECTOR, Parma, Ohio,

for Appellees.

_________________

OPINION

_________________

KENNEDY, Circuit Judge. Plaintiff appeals an order

granting summary judgment to Defendants City of Parma and

individual Parma Police Officers1 in this § 1983 action based

on the alleged use of excessive force during the arrest.

Plaintiff argues that the district court erred when it upheld the

validity of a release-dismissal agreement in granting the

motion for summary judgment. Finding the release met the

requirements of Newton v. Rumery, 480 U.S. 386 (1987), we

affirm.

BACKGROUND

This § 1983 case stems from the arrest of Plaintiff Tahler

MacBoyle on the night of July 29, 2000. Plaintiff sued

Defendants City of Parma and several Parma Police Officers

for using excessive force and causing permanent injuries, in

carrying out that arrest. Plaintiff claims that the Parma Police

Officers violated his Fourth and Fourteenth Amendment

rights, and that City of Parma is liable for malicious

prosecution, negligence, and failure to train.

On July 29, 2000, at approximately 11:30 p.m., Parma

Police Department dispatched Defendants Pinc and Ciryak to

the home of Kimberly Guder, 6511 State Road, apartment

204, in Parma, Ohio, to investigate a noise disturbance.

Ms. Guder was hosting a surprise party for her boyfriend,

Paul Kopin, who had recently turned nineteen. Ms. Guder
No. 03-3784 MacBoyle v. City of Parma, et al. 3

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Apparently, the male was a party guest to whom Ms. Guder had

given the keys so he could get back inside the apartment.

invited about thirty people to the party, including Mr. Kopin’s

mother, Shirley Kopin, and Ms. Kopin’s boyfriend, Plaintiff

MacBoyle. Plaintiff was thirty-four at the time of the party.

Ms. Kopin and Plaintiff both attended the party and were at

the apartment when the police officers arrived. Several guests

had brought alcohol to the party, and the party goers were

consuming alcohol. According to Defendants, when they

arrived at the apartment complex, they observed a female and

male noticing them and running to the second floor of the

apartment complex. As the Defendants approached the

apartment, a male with keys to the apartment2 let the police

officers into Ms. Guder’s apartment. The officers believed

they entered the apartment with consent. At the time of the

entry, Plaintiff was on the apartment’s balcony with Ms.

Kopin and Ms. Guder.

Inside the apartment, the police officers observed fifteen to

twenty individuals. Many of those individuals in the

possession of alcoholic beverages appeared to be underage.

When the officers requested the name of the apartment’s

owner, no one responded. When the officers began

requesting identification from the individuals present, no one

responded. During this period, several individuals, including

Plaintiff, entered the living room. Defendants claim that

Plaintiff began using vulgarities and demanding to know who

let the officers in. Plaintiff claims that it was the police

officers who used vulgarities while questioning the party

goers and that he, Plaintiff, was attempting to diffuse the

situation by politely asking the police officers why they were

in the apartment. Plaintiff further claims that he asked the

police officers to leave only when they failed to respond to his

inquiries, and that the police offices declined to leave.

Defendant Pinc asked Plaintiff for identification.

Defendants claim that Plaintiff refused to give any

4 MacBoyle v. City of Parma, et al. No. 03-3784

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Plaintiff later pleaded no contest to minor misdemeanor disorderly

conduct.

identification, and, instead, continued with loud vulgarities

and demanded that the officer produce a search warrant.

Plaintiff claims that another guest, Mr. Kopin, and not he,

used profanities and that Defendants confused the two of

them. Defendants claim that at one point during the

discussion, Plaintiff moved toward Defendant Pinc.

Defendant Pinc put his hand up to stop Plaintiff from

approaching and called for backup police officers. One of

those officers, Defendant Chihil, went to the apartment’s

balcony and instructed the individuals to return into the

apartment for identification purposes. Defendants claim that

Plaintiff began walking toward the balcony, that they advised

him to remain inside the apartment three times, and that he

refused to obey their instructions. Plaintiff, on the other hand,

claims that, at this point, he decided to call the Mayor’s

office. Plaintiff also says that the officers, using more

profanity, instructed him to get off the phone, and when he

refused, one of the officers grabbed the phone and threw it

across the room. Plaintiff further says that an officer struck

him on the head with a flashlight and that the officers

continued their assault on him by throwing him on to a table

and then to the floor, and then running him out of the

apartment head first into the apartment’s metal door.

Plaintiff was charged with obstructing official business,

resisting arrest and disorderly conduct. Mr. Kopin and two

other guests were also charged with various offenses. The

cases were consolidated for trial. While his criminal case was

pending, Defendant, on advice of his counsel, entered into a

release-dismissal agreement with all Defendants (the “Release

Agreement”). Pursuant to the Release Agreement, Plaintiff

waived all rights to sue Defendants. The City agreed to

dismiss the charges of resisting arrest and obstructing official

business and to amend the disorderly conduct charge.

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Notwithstanding the Release Agreement, Plaintiff filed the
No. 03-3784 MacBoyle v. City of Parma, et al. 5

instant action. Defendants argued, and the district court

found, that the Release Agreement prevents Plaintiff from

bringing this action.

ANALYSIS

The Supreme Court has upheld the validity of releasedismissal agreements whereby a criminal defendant releases

his right to file a civil rights action in return for a prosecutor’s

dismissal of pending criminal charges, as long as the

agreement meets certain criteria. See generally Town of

Newton v. Rumery, 480 U.S. 386 (1987). The enforcement of

such an agreement is appropriate if a court decides that (1) it

was entered into voluntarily; (2) there is no evidence of

prosecutorial misconduct; and (3) the enforcement furthers

the public interest. Id. at 398. The burden of proof in this

analysis “falls upon the party in the § 1983 action who seeks

to invoke the agreement as a defense.” Coughlen v. Coots,

5 F.3d 970, 974 (6th Cir. 1993). We derived the rationale for

this allocation of the burden of proof from Justice O’Connor’s

concurrence in Rumery:

Permitting such releases may tempt public officials to

bring frivolous criminal charges in order to deter

meritorious civil complaints. The risk and expense of a

criminal trial can easily intimidate even an innocent

person whose civil and constitutional rights have been

violated. The coercive power of criminal process may be

twisted to serve the end of suppressing complaints

against official abuse, to the detriment not only of the

victim of such abuse, but also of society as a whole.

Rumery, 480 U.S. at 400 (O’Connor, J., concurring in part)

(quoted in Coughlen, 5 F.3d at 973). As the district court

correctly noted, a court may not, in conducting its Rumery

analysis, “prejudge the plaintiff’s § 1983 claim and will look

for ‘the existence of substantial evidence of police

misconduct in a particular case . . . since [such evidence]

could be probative of the motives of the prosecutor for

6 MacBoyle v. City of Parma, et al. No. 03-3784

seeking such an agreement, as well as the degree to which

enforcing the agreement would serve the public interest.’”

MacBoyle v. City of Parma, No. 1:02-CV-1487, slip op. at 7

(N.D. Ohio Mar. 26, 2002) (citing Coughlen, 5 F.3d at 974).

The district court conducted the three-factor Rumery

analysis and concluded that the Release Agreement should be

upheld.

With respect to the voluntariness prong, the district court

stated:

Plaintiff MacBoyle was thirty-four years old and

represented by an attorney when he signed the Release

Agreement. He is a college graduate who has been

employed since 1989 and takes part in continuing

professional education seminars. PlaintiffMacBoylewas

not incarcerated when he signed the Release Agreement,

and there is no evidence that MacBoyle did not have

ample time to consider the agreement before signing it.

In fact, Plaintiff MacBoyle claims that he signed the

release out of concern for Shirley Kopin, Paul Kopin and

Kim Guder, who also had all the criminal charges

besides minor misdemeanor criminal conduct dismissed

as a result of Plaintiff’s and their releases. Plaintiff

MacBoyle’s signing of the Release Agreement was

undeniably voluntary.

MacBoyle v. City of Parma, No. 1:02-CV-1487, slip op. at 7-

8 (N.D. Ohio Mar. 26, 2002). Plaintiff presents a number of

objections to this conclusion. Because these objections lack

any merit, we conclude, without unnecessary discussion, that

the district court properly found that Plaintiff voluntarily

signed the Release Agreement. We emphasize that the fact

that Plaintiff signed the release out of concern for the others

charged in the event does not affect the voluntariness of his

act.
No. 03-3784 MacBoyle v. City of Parma, et al. 7

With respect to the prosecutorial misconduct prong, the

district court stated:

. . . Plaintiff MacBoyle offers no real evidence of

prosecutorial misconduct. Plaintiff MacBoyle does not

claim that any of the charges against him were in any

way trumped up. In fact, given the police officers [sic]

version of the incident, the criminal charges seem

reasonable. MacBoyle claims that the prosecutor

changed his mind from dismissing all the charges to

wanting the Plaintiff and the other indicted party goers to

plead to one charge of minor misdemeanor disorderly

conduct. Plaintiff MacBoyle also says that the

prosecutor should not have conditioned the dismissal on

all the indicted party goers signing the release. This

Court finds that such evidence, even if true, does not rise

to the level of prosecutorial misconduct. There is no rule

against a prosecutor changing his mind. Plaintiff

MacBoyle does not claim that he accepted an earlier

offer whereby all claims were dismissed, and then the

prosecutor changed his mind and forced him to accept

another offer. Rather, Plaintiff claims that the prosecutor

contemplating dismissing all charges, thought better of

it, and changed his mind. Such activity is not

misconduct. Linking the agreements was also not

misconduct. All the charges against the party goers were

reasonable in light of the police officers [sic] description

of the incident. MacBoyle was free to not sign the

Release Agreement if he chose not to.

MacBoyle v. City of Parma, No. 1:02-CV-1487, slip op. at 8

(N.D. Ohio Mar. 26, 2002). The district court’s decision on

this point was, thus, a legal one. Plaintiff has presented us

with no legal authority to conclude that what the prosecutor

did in this case amounted to misconduct. Plaintiff simply

contends that the presence of conflicting testimony amounts

to “substantial evidence” of prosecutorial misconduct under

Coughlen. However, we have already held that the mere

“existence of discrepancies among the accounts of

8 MacBoyle v. City of Parma, et al. No. 03-3784

prosecution witnesses does not amount to ‘substantial

evidence’ of police misconduct such that an inference of

prosecutorial misconduct under Coughlen arises.” Burke v.

Johnson, 167 F.3d 276, 286 (6th Cir. 1999). If the

discrepancyamong the prosecution witnesses is not sufficient

to constitute prosecutorial misconduct, then certainly a

discrepancybetween the prosecution witnesses and Plaintiff’s

witnesses is not enough to rise to the level of prosecutorial

misconduct. Accordingly, we find that the district court

properly found that there was no prosecutorial misconduct.

With respect to the public interest prong, the district court

found that:

. . . enforcing the Release Agreement serves public

interest in that such agreements enable parties to resolve

issues ami[c]ably themselves, weed out unmeritorious

claims and charges, and conserve[] precious judicial

resources. The evidence shows that Plaintiff MacBoyle

agreed to the Release Agreement voluntarily without any

prosecutorial misconduct. Public interest mandates

holding parties to the agreements they enter into on their

own volition. Nullifying the Release Agreements would

provide a disincentive to prosecutors from agreeing to

release-dismissal agreements in the future. Therefore the

public interest is served by enforcing the Release

Agreement.

MacBoyle v. City of Parma, No. 1:02-CV-1487, slip op. at 8-

9 ( N.D. Ohio Mar. 26, 2002). The district court’s recital of

factors would apply to every release-dismissal agreement. It

is true of all such agreements that they “enable parties to

resolve issues ami[c]ably themselves, weed out unmeritorious

claims and charges, and conserve[] precious judicial

resources.” It is also true that nullifying such agreements

“would provide a disincentive to prosecutors from agreeing”

to them in the future. However, in the absence of a

determination by the district court that Plaintiff’s claims were

“unmeritorious,” a finding that the Release Agreement in this
No. 03-3784 MacBoyle v. City of Parma, et al. 9

4We continue to remind the district courts to make such findings to

make it easier for this Court to evaluate the district court’s decision.

case would not adversely affect relevant public interests

requires some further analysis.

As we noted in an earlier opinion, this element is the “least

well-defined element of a Rumery analysis.” Coughlen,

5 F.3d at 975. We explained that “this standard can be

satisfied if the prosecutor demonstrates that obtaining the

release was motivated by an independent, legitimate criminal

justice objective” and that this “does not appear to create a

particularly difficult hurdle for the prosecutor to clear.” Id.

(noting that “the reason proffered by the prosecutor for the

release-dismissal agreement in this case–‘to aid in the

disposition of its heavy case load’–would probably suffice

under ordinary circumstances.”) In Coughlen, we also

provided a non-exhaustive list of circumstances in which

“[r]elease dismissal agreements [] can be legitimate criminal

justice tools . . .” Id. (offering as examples, situations where

(1) “police misconduct is alleged, but the prosecutor is

genuinely unable to ascertain the truth surrounding the

allegation”; (2) “the cost of prosecution would outweigh the

benefit accruing to the public from a conviction; [3] the

strength of evidence of criminal conduct is doubtful even

though charges were filed in good faith . . .”; (4) “criminal

charges are not the product of prosecutorial misconduct and

both sides benefit substantially from a balanced settlement in

the sense that both avoid exposure to potential liabilities and

expenses.”) 

The district court’s failure to make adequate findings of

fact, however, does not warrant a remand. We have, in the

past, determined whether the public interest prong was

satisfied even in the absence of a district court finding when

there was sufficient evidence in the record to do so. Hill v.

Cleveland, 12 F.3d 575, 579 (6th Cir. 1993).4 We will do so

in this case. In Hill, a panel made an independent finding

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The trial court declared a mistrial in the first trial because it was

discovered that a police report had been improperly placed in the jury

room. Apparently, there either was an eight-person jury or the alternate

jurors had not been excused when the mistrial was ordered. In any case,

the release-dismissal agreement was signed in anticipation of a retrial.

under the following circumstances: (1) the failure of a state

trial court to reach a decision on the merits of a criminal case

(7-1 vote to acquit)5; (2) the conflicting and adversarial

positions taken by the parties on the proof; (3) the connection

between the civil rights action and the criminal charges;

(4) the lack of prosecutorial overreaching; (5) the nature of

charges brought. Our case is very similar with respect to

factors (2) through (5). We do have an absence of an

apparent, albeit legally nonexistent, acquittal. However, this

difference weakens the position of Plaintiff in the instant case.

The Hill plaintiff was likely to be believed and thus acquitted

in a retrial, and nevertheless lost in his attempt to void the

release-dismissal agreement. Plaintiff in the instant case has

merely asserted his innocence. The record reflects that the

testimony of the parties was in direct conflict as to what had

indeed occurred. Accordingly, we find that Plaintiff in this

case has an even weaker argument than the Hill plaintiff and

we make an independent determination that enforcing the

agreement would not adversely affect the relevant public

interests.

CONCLUSION

For the reasons stated above, we affirm the district court’s

order granting summary judgment to all Defendants.