1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0290P (6th C ir.) File Name: 04a02 90p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
T AHLER M AC B OYLE ,

Plaintiff- Appellant

,

v.

C ITY OF P ARMA , et al., Defenda nts-Appe llees. X - - - -
> , - - N 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

Befor e: KENNEDY, SUTTO

N, and COO K, Circui

t Judges.

_________________ COUNSEL

ARGUED: Brent L. English, LAW OFFICE OF

BRENT L. ENGLI SH, Cleveland, O hio, for Appe llant. Mic hael P. Malone y, LA W OFFI CE, Westlak e, Ohio, f

or Appel lees. ON BRIE F: Brent L. English, LAW OFFI CE OF BREN T L. EN GLI SH, Clevelan

d, Ohio, f or Appel lant. Michael P. Ma lo ne y, LAW OF FICE , We stlake, Ohio, Timothy G. 2 MacBoy le v. City of Parma, e t al. No. 03-3784

1 Patrolmen Ed ward Pinc , Ken neth C hihil, Da niel H ein z, Daniel Ciryak, Christopher Dillenbeck, Victor B elesk e, Wayne K resak, and Joseph Duganier ; and Serge ants J ames Blair and Gary Kuchta. Dobeck, OFFICE OF

THE LAW DI

RECTOR, Parma, Ohio, for Appe llees.

_________________

OPINION

_________________ KENNEDY, Circuit Judge. Plaintiff appeals an order granting summary judgmen t to Defendants City of Par ma and individual Parma Police Officers 1 in this § 1983 action based
onthe alleged use of excessive force during the arre s t. Plaintiff argue s that the d

istrict c ourt err

ed when i tupheld the validity of a release-dismissal agree ment in granting the motion for summary judg ment. Findi ng the release met the require ments of Newton v. R umery , 480 U.S. 386 (1987), we affirm.

BACKGROUND

This § 1983 ca se stems f

rom the a rrest of Plain tiff Tahler MacBoy le on the night of July 29, 2000. Pl aintiff sued Defend ants City of

Parma and several Parma PoliceOfficers for usin g excessive

force a nd causin g perma nent injur ies, in carry ing out that arrest. Plaintiff claims that the Parma

Police Officers violated

his Fourt

h and Fou

rteenth Ame ndmen t rights, and that Cit y of Parma is liable for malicious prosecution, negligence, a nd failure to train.

On July 29, 2000, at approximately 11:30 p.m., Parm a Police Department

dispatched Defendants Pinc and Ciry ak to the home of Kimberly Gude r, 6 511 State Road, apartment 204, in Parma, Ohio, to investigate a noise disturbance. Ms. Guder was hosting a surprise pa r ty for her boy

friend, Paul Kopin, who had recently turned nineteen. M s. Gu derNo. 03-3784 MacBoy le v. City of Parma, e t al. 3

2 Ap pare ntly, th e ma le wa s apar ty gu es t t o wh om Ms . Gu der ha d given th e keys so he co uld ge t back inside the apar tment. invited about thir ty people to the party, inc luding Mr. Kopin’s mother, Shirley Kopin, and Ms. Kopin’s boyfriend, Plaintiff MacBoy le. Plaintiff was thirty-four a t the time of the pa rt y. Ms. Kopin and Plaintiff both attended the par ty and were at the apartment

when the police officers arrived. Several guests had brough t alcohol to the par

ty, and th e p ar ty g oers were consuming alcohol. According to Defendan t s, when they arrived at the apartment complex, they observe d a female and male noticing them and running to the s econd floor of the
apartment complex. As the Defendants approach ed th e apartme nt, a male with keys to the apa rtment 2 let the police officers into Ms. Gud

er’s a partm ent. The officers believed they entered the apartment wi th cons ent. At the time of the
en tr y, Pla i ntiff wa s on the ap artment’ s balcony with Ms. Kopin and Ms. Guder.

Insidethe apartment, the police officers observed fifteen to twenty i ndiv iduals. Many of those individuals in the possessi on of alcoholic beverages appe ared to be underage. Whenthe officers requested the name of the a par tment’s owner, no one responded. When the office r s began requestingidentificationfromthe individuals present, no one responded. Duringthis period, several individuals, including Plaintiff, entere d the living room. De fendant s c l aim that Plaintiff began using vulgarities

and dema nding to know who let the of fice rs in. Plaintiff claims that it was the police officers who used v

ulgari ties while

questioni

ng the p arty goers and that he, Plaintiff, was attempting to diffuse the situation by p olitely

asking the police officerswhy they were inthe apartment. Plaintiff further claims that he asked the police officers to leave

only when the y f ailed to r espond to h

is inquiries, and that the police offices declined to leave.

Defendant

Pinc aske d Plaintif

f f or identification. Defend ants claim that Plaintiff refused to give any 4 MacBoy le v. City of Parma, e t al. No. 03-3784

3 Plain tiff

lat er plea ded no cont est to mi nor mi sdemean or disor derly

con duc t. ide nt ification, and, instead, continued with loud vulgarities and demanded that the officer produce a search warran

t

. Plainti ff claims that another guest, Mr. Kopin, and not he , used profan ities and that Defendants confused the two of them. Defend

ants cla im that at one po int during the discussion, Plaintiff mov ed toward Defendant Pinc. Defendant

Pinc put his hand up to s top Pl aintiff from appr oac hing and called for backup police office rs. One of those officers, Defendan t C hihil, went to the apartment’s balcony and ins tructed the individuals to return into the apartment for identification purposes. Defend ants 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

th is point, he decided to call the May or’s offi ce. Plaintiff also says that the office rs, using more pr of an it y, instructed him to get off the phone, and when h e refused, one of the

office rs gra bbed th e phon e and thr

ew it
acrossthe room. Plaintiff further s ays that an off

icer struck h im on the head with a flashlight and that the officers continued their assault onhim by

throwing him on to a ta

ble and then to the floor, and then running him out of the apartment head first into the apartment’s metal door.

Plaintiff was cha rged w ith obstruc

ting off icial busi ness, resisting arrest and disorderly conduct. Mr. Kopin and two other guests were also charg ed with various offenses. T h e cases were consolidated for trial. While his criminal case was pendi ng, Defend

ant, on ad vice of h is counsel, entere d into a release-dismissal agre ement with all Defendants (the “ Releas e Ag reement”). Pursuant t o the Rele ase Ag

reemen t, Plain tif f waived all rights to sue Defe ndants. T he City agree d to dismiss the charges of

resisting arrest and obstructing offic ial bu siness and to amend the disorderly conduct cha

rge. 3 Notwithstanding the Relea se Agr eement, Plaintiff

fil ed t heNo. 03-3784 MacBoy le v. City of Parma, e t al. 5

insta ntaction. Defendants argued, a nd the district cour

t found, that t

he Release Agreement pre vents Plaintiff from bringing this action.

ANALYSIS

The Su preme Court has upheld the validity ofreleasedismissal ag re em en ts wh er eb y a criminal defendant

releases his right to

file a ci vil righ ts action in return for a prosecutor’s dismissal of pendin

g crimin al char ges, as long as the agreement

meets certai n crite ria. See generally Town of Newton v. Rumer

y , 480 U.S. 386 (1987). The enforcement of suchan agreement is appropriate if a court decides that (1) it

w as enter ed into voluntarily; (2) there is no evidence of pr osecutorial misconduct; and (3) the enforcement furthers the public interest. Id. at 398. The burden of proof in this analy sis “fallsupon the party in the § 1983 action who seeks to invoke the agreem ent as a defense.” Coughlen v . Coots , 5 F.3d 970, 974 (6th Cir. 1993). We derived the rationale for this allocationof the burden of proof from Justice O’Connor’s concurrence in Rumery :
Permi tti ng such rel eases ma y te mpt public o fficial s 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 twi stedt o serve t

he end of

suppress ing comp laints agai n st official abuse, to the detriment not only of the victim of such abuse, but also of society as a whole.

Rum ery , 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 c ourt ma

y not, i n conducting its Rumery analy sis, “prejudge the plaintiff’s § 1983 claim and will look for ‘the existe

nce of su

bst antia l evidence of police misconduct

in aparticul ar case . . . since [such evidence] could be p robative of the motives of the prosecutor for 6 MacBoy le v. City of Parma, e t al. No. 03-3784

seekingsuch an ag reement, as well as the degre e to which enforcing the agreement would serve the public interest.’” MacBoy le v. City of Parma , No. 1:02-CV-1487, slip op. at 7 (N.D. Ohio M ar. 26 , 2002 ) (cit ing Coughlen , 5 F.3d at 974).

The district court conducted the three-factor Rumery analy sis and concluded

that the Release Agreement should be upheld.

Withrespect to the voluntariness prong, the district court stated:

Plaintiff MacBoy

le was thirty-fou

ryears old a

nd repre sent ed

by a n attorne y w hen he sig

ned the Re lease Agree ment. He is a

college graduate w

ho has been employed since 1989 and takes part in cont in uing p rofessional education seminars

. Plaintiff MacBoy le wa s notincarcerated when

he signe d the Rele ase Agree ment, and there is no ev idence t hat MacBoy le did not have ampl e time to con sider the agree ment bef ore sig ning it. Infact, Plaintiff MacB oy le claims that he signed the releas e out of

concern for Shirley

Kopin, Paul Kopin and Kim Guder, w

ho also ha

d all t h e criminal charges besides minor misdemeanor criminal conduct dismissed
as a result of Plaintiff’s and their releases . Pla intiff Mac B oyle’ssigning of the Release Ag reement was
un de ni ab ly v ol un ta ry. MacBoy le v. City of

Parma , No. 1:02-CV-1487, slip op. at 7- 8 (N.D. Oh

io Mar. 26, 2002). Plaintiff presents a number of objections to this conc lusion. B ecause theseobjections lack any merit, we conclude, without unnecessary discussion, that the district c ourt prop erly foun d that Plain

tiff volun tarily signed the Release Agreement. We emphasize that the fa c t that Plaintiff signed the release out of concern for theothers charged in the even t does n ot affe ct the vol untarine ss of his act.No. 03-3784 MacBoy le v. City of Parma, e t al. 7

Withrespect to the prosecutorial misconduct prong, the district court stated:

. . . Plaintiff MacBoy

le offer s no real evidence of prosecutorial misconduct. Plaintiff MacBoy le does not claim th at any of the c

harges against him were

in an y way trumped up. In f

act, given the police officers [sic]
ver sion of the incident, the criminal charges see m reasonable. MacBoy

le claims that the pr o secutor changed his mind from dismi ssing al l the cha rges to wantingthe Plaintiff

and the other indicted party goers t o plead to o ne c harge

of minor mi sdemean

or disord erly conduct. Plainti ff Ma cBoyle also says that the prosecutor

should not have conditioned the dismissal on all the indic te d par ty goers sig ning the releas e. This Courtfinds that such evidence, even if true, d oes not ri se to the level of prose cutoria l miscondu

ct. Ther e is no rul e againsta pro secuto r changing his mind. Plaintiff Mac Boy le d oes not claim that he accepted an earlier offer whereby a

ll claims w ere dismi sse d, and then the prosecutor

changed his mind and forced him to accept another offer. Rather, Plaintiff claims that the prosecutor
con templating dismissing all charges, thought better o f it, and changed his mind. Such activity is not misconduct. Linking the a greements was also not misconduct. All the charges againstthe party goers were reasona ble in light

of the police officers [sic] description of the incid

ent. Mac Boy

le was fr ee to not s i gn the Release Agreement if he c hose not to. MacBoy le 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 le gal one. Plaintiff has presented us with no legal authority

to co ncl ude that what the prosecutor did in this case amounted to misconduct. Plaint iff sim ply contends that the presence of conflicting testimony amounts to “substantial evidence” of prosecutorial misconduct und er Coughlen

. However, we have already held that the mere “existence of discr

epancie s among t

h e acc ounts of 8 MacBoy le v. City of Parma, e t al. No. 03-3784

prosecution witne sses does not amount to ‘substantial evidence’ of police miscon d uct such that an inference of prosecutorial miscond

uct under Coughlen arises.” Burke v. Johnson , 167 F.3d 276, 286 (6th Cir . 1999). If the discrepancy among

the prosecution witnesses is not sufficient to constitute prosecutorial misconduct , th en ce rt ai nl y a disc repancy between the prosecution witnesses and Plaintiff’ s witnesses is not enough to rise to the level of prosecutorial misconduc

t. Accord

ingly, we find that the district court properl y f ound that t

here wa s no prose cutoria

l miscondu

ct. With respect

to the publ ic intere st

prong, the district court found tha t:

. . . enfor

cing the Release Agree ment serv

es publi c interest in that suchagree

ments ena ble parties to resolve issues ami[c ]a

bl y themselves, wee d out unmeritorious claims and c harges, and conserve[] precious judicial
resourc es. The evidence shows that Plaintiff MacBoy le agreed to the Release Agreement voluntarily without any prosecutorial misconduct. P ublic interest mandates holding parties t

o the ag reemen ts they enter in to on their
ownvolition. Nullifying the Release Agree ments woul d prov ide a disincentive to prosecutors from agree ing t o release-dismissal agreements in thefuture. Therefore the public inte rest is serve d by enforc ing the R

elease Agree ment. MacBoy le 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 wou ld app ly to eve ry rel eas e-d is mi ss al a gre eme nt . It is tr ue of all suc

h agre ements tha

t they “enable parties t o resolve issues ami[c]ably themselves, weed out unmeritor ious claims and charges , and conserve[] precious judicial
re sources.” It is also true that nullify ing such agreement s “would provide a disincentive to prosecutors from a greeing” 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 Relea se Agr

eement in thisNo. 03-3784 MacBoy le v. City of Parma, e t al. 9

4 We contin ue to re mind the distric t c ourts to ma ke suc h finding s to make it easier f

or this Court t o evaluate the dist rict court’ s decision. casewould not adver se ly a ffect r elevant public inte

rests require s some fur

ther ana lys is.

As we noted

in an earlier opinion, this eleme nt is the “l east well-defined

element of a Rumery

analysis.” Coug hlen , 5 F.3d a t 975. We explained that “this standard can be satisfied if the prosecutor demonstrates that obtaining the releas e was motivated by an indepe ndent, legitimate criminal j u stice objective” and that this “does not appear to crea te a par ticular ly 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 ca se load’–woul d p robably suffic e under ordinary c ircumstances.”) In Coughlen , we also provided a non-exhaustive list of circumstan ces in which “[r]elea se dismissal agreements [] can be legitimate criminal justice to ols .

. .” Id. (offering as examples, situations where (1) “police m isconduct is alleg ed, but the prosecu tor is genu inely unable to

ascert ain the tr

uth surro unding the allegation”; (2) “the cost of prosec ution would outweigh the benefit accruing to the public fro m a con viction; [3] the streng thof evidence of c riminal conduct is doubtful even thou ghcharg es were filed in good faith . . .”; (4) “c riminal charges are not t

he produ ct of pro secutor

ial mis conduct and both sides benefit subst

antially from a balanced settleme nt in the sense that both avoid exposure to potential liabilities and expenses.”)

The district c ourt’s fa

ilure to ma

ke adequate findings of fact, h owev er, does not warrant a remand. We have, in the past, determined whe ther the public interest prong was satisfied even in the absence of a district court finding when there was sufficient evide nce in t he record to do so. Hill v. Cleveland , 12 F.3d 57 5, 579 (6th Cir. 1993). 4 We will do so inthis case. In Hill , a panel made a n independent finding 10 MacBoy le v. City of Parma, e t al. No. 03-3784

5 The tri al court

declared a mi stri al i n the f irst tri al becaus e it

was disc ov ered that a police report had been improperly placed in the j ury
room. Apparentl y, t

here ei ther wa s an e ight-per son ju ry or the alterna te jurors had not been exc used when th e mist rialwas ordered. In any case, the rele ase-d ismissal a greem ent was signed in anticip ation o f a retrial. und e r the follow

ing cir cumstanc es: (1) the failur e of a sta te trial court to reach a decision on the merits of a criminal case (7-1 vote to ac quit) 5 ; (2) the conflicting and adversarial positions taken by the pa

rties onthe proof; (3) the connection between the civil r

ights a ction and

the crimi

nal char ges; (4) the lack of pros ecuto rial overreaching; (5) the na ture of charges brought. Our case is very similar with res p ect to factors (2) through (5). We d o have an absence of an appare nt, albeit legally nonexistent, acquittal. Howeve r, this differenceweakens the position of Plaintiff in the instant case. The Hill plaintiff was likely to be believe d and thus acquitted ina retrial, and nevertheless lost in his attem pt to vo id the release-dismissal agree

ment. Plaintiff in the instant case has merely ass erted his innocence. The record refle cts that the testimony of the

parties was in direct conflict as to what had indeed occurred. Accordingly

, we find that Plaintiff in this
casehas an even

weaker argument than the Hill plaintiff and
we make an independ ent d etermination that enforcing the agree me nt would not a

dversel y a ffect the relev ant public interest s.
CONCLUSION

For the reasons stated above, we affirm the district court’s order g ranting summary judgmen t to all De fendant s.