John Wysong v. City of Heath

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0296n.06
No. 08-3319
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN WYSONG,
Plaintiff-Appellant,
v.
CITY OF HEATH; SCOTT INGERSOLL, CHIEF OF
POLICE; BRUCE RAMAGE, OFFICER; STEVE
COULTER, SERGEANT; JAIMEE COULTER,
PATROLMAN; MARK PHILLIPS, PATROLMAN,
APRIL MARTIN, PATROLMAN,
Defendants-Appellees.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
BEFORE: GIBBONS, ROGERS, and KETHLEDGE, Circuit Judges.
ROGERS, Circuit Judge. John Wysong appeals the district court’s grant of summary
judgment to defendant police officers Bruce Ramage and Jaimee Coulter. Wysong brought suit
against the City of Heath and several city officials, including Ramage and Coulter, after Wysong was
charged with disorderly conduct for actions that he claims were involuntary due to a diabetic seizure.
The district court granted summary judgment to the defendants on Wysong’s state and federal claims
of false arrest and malicious prosecution, and Wysong appealed those determinations after the
district court issued a final order dismissing the case. Because Wysong’s initial arrest was supported
by probable cause, because there is no evidence in the record that the police officers supplied the

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prosecutor with any false or misleading information, and because the officers are entitled to qualified
immunity on all of Wysong’s claims that are the subject of this appeal, we affirm.
On July 13, 2002, Officer Ramage was leaving a Kroger store on an unrelated complaint
when he was approached by two women who complained that a man in a white truck had been
kicking the window of his truck and making lewd gestures and obscene comments to them. That
man was John Wysong, and while Ramage was talking to the women, he observed Wysong leave
the truck and walk towards the Kroger. After calling in the complaint and requesting backup,
Ramage approached Wysong, who appeared to be staggering, and asked to speak with him. Ramage
asked Wysong if that was his truck, and Wysong answered, “What truck?” When Ramage pointed
to the truck Wysong had just left, Wysong answered, “Whose truck?”
After the exchange, Wysong fled from Ramage towards the road. Ramage chased Wysong,
yelled at him to stop, and then yelled, “You’re under arrest.” After running about 20 to 30 yards,
Ramage caught Wysong and forced him to the ground by striking him in the shoulder. As Wysong
fell, Officer Jaimee Coulter arrived at the scene in response to Ramage’s initial call for backup.
With Coulter’s assistance, Ramage attempted to get control of Wysong’s hands in order to handcuff
him. One of the women who had initially reported Wysong claimed that he continued to struggle
with the officers, and both Ramage and Coulter claimed that they were kicked by Wysong. Two
more officers eventually arrived and the officers were able to handcuff Wysong, but he continued
to struggle as the officers led him to a police car.

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Wysong claims that he has no memory from the time he pulled into the Kroger parking lot
until he was inside the police car. Once in the car, Wysong began to calm down and he informed
one of the officers that he was a diabetic. The officers then contacted emergency medical personnel
and instructed paramedics to meet the officers and Wysong at the police station, which was less than
a mile away from the Kroger. Coulter stated in her deposition that Wysong was at times cooperative
and that Wysong said in the police car that he was not going to cause any more problems, but at the
station he again became uncooperative. The paramedics treated Wysong with oral glucose and
indicated that he should be taken to the hospital. Ramage accompanied Wysong to the hospital and
released him on a personal recognizance bond.
Later that day, Ramage prepared an incident report stating that Wysong had been charged
with disorderly conduct, obstructing official business, and resisting arrest. The report stated that
Wysong first indicated that he was diabetic after he was handcuffed and placed in the police car, and
the report also stated that paramedics at the station had advised police that Wysong’s blood sugar
was low. Ramage indicated that he accompanied Wysong to the hospital, where he was released.
Officer Coulter prepared a supplemental statement. Her version of events was consistent
with Ramage’s, but she also wrote that the officers were only able to handcuff Wysong after
threatening to use mace. She stated that one of the late-arriving officers grabbed Coulter’s mace can,
put it directly in front of Wysong’s face, and told Wysong he would be maced if he did not comply.
Coulter stated that Wysong immediately complied after the threat. She also reported that the
paramedics stated that Wysong’s blood sugar level was 48 and “that [Wysong’s behavior] seemed

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consistent with that of a diabetic with low [blood] sugar, but they too were confused as to how Mr.
Wysong had become rather lucid prior to being treated.” Coulter picked up Ramage from the
hospital, where she heard Wysong ask Ramage several times if the charges would be dismissed and
Ramage respond that the determination would be made by a prosecutor.
At the time of Wysong’s arrest, City of Heath Prosecutor Harvey Shapiro was on vacation
in Florida. Shapiro could not recall whether he received a call concerning Wysong’s case that day,
but he assumed based on custom that he would have received a call telling him that he would receive
an email or fax regarding the case, and he did recall speaking with somebody from his office about
the case before he left Florida. Shapiro also recalled receiving the police reports and the witness
statements, but he stated that he could not initially recall whether the information he had received
included a report from the emergency room doctor or the paramedics who treated Wysong. Later
in his deposition Shapiro stated that he must have seen the paramedics’ report at some point because
he thought he remembered details about a paramedic’s being surprised that Wysong was able to
recall parts of the situation. Shapiro testified that at some point prior to leaving Florida he
authorized an associate from his office to prepare a complaint against Wysong. Although he could
not remember doing so, Shapiro knows that he authorized the charge because it was eventually filed
and only he could determine whether a charge would be filed. Shapiro decided not to file a charge
for obstructing official business or resisting arrest, although Ramage’s report charged Wysong with
those offenses. While Shapiro was considering charges against Wysong, Shapiro never spoke to any
City of Heath police officer about the case. After filing charges, Shapiro decided to dismiss the

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charge after determining that the interests of the City of Heath and the interests of justice would not
be served by continued prosecution.
Wysong then brought suit against the City of Heath and several city employees, including
Ramage and Coulter. Wysong alleged a § 1983 claim for arrest and prosecution without probable
cause and use of excessive force in violation of the Fourth Amendment; deliberate indifference to
serious medical needs in violation of the Fourteenth Amendment; a state law claim for false arrest;
a state law claim for malicious prosecution against Officer Ramage, and municipal liability against
the City of Heath. The parties filed cross-motions for summary judgment, and the court denied
Wysong’s motion while granting the defendants’ motion in part and denying in part. The district
court granted summary judgment for the defendants on the false arrest and malicious prosecution
claims under state and federal law, and that decision is now the subject of this appeal. The parties
continued to litigate the remaining claims in the case involving excessive force until this court
determined on interlocutory appeal that the defendants were entitled to qualified immunity on those
claims. Wysong v. City of Heath, 260 Fed. App’x 848 (6th Cir. 2008). In response to this court’s
order, the district court issued an order closing the case. Wysong then timely appealed the final
order, challenging the district court’s initial partial grant of summary judgment to the defendants on
Wysong’s false arrest and malicious prosecution claims under federal and state law.
Ramage and Coulter were entitled to summary judgment on Wysong’s constitutional claim
of false arrest because there existed a probability of criminal activity when Ramage arrested Wysong
and because the officers are entitled to qualified immunity. Wysong concedes that his initial arrest

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was lawful and this initial detention provided the probable cause for Wysong’s arrest. “For Fourth
Amendment purposes: ‘Probable cause necessary to justify an arrest is defined as whether at that
moment the facts and circumstances within [the officers’] knowledge and of which they had
reasonably trustworthy information were sufficient to warrant a prudent man in believing that the
[arrestee] had committed or was committing an offense.” Wilson v. Morgan, 477 F.3d 326, 333 (6th
Cir. 2007) (quoting Radvansky v. City of Olmstead Falls, 395 F.3d 291, 302 (6th Cir. 2005))
(alteration in original). Wysong does not dispute the following facts: two witnesses reported that
Wysong had kicked the window of his car and made lewd and obscene gestures to them; when they
reported this activity to Ramage and Ramage attempted to speak with Wysong, he fled despite
Ramage’s ordering Wysong to stop and telling him he was under arrest; and after Ramage knocked
Wysong over, he continued to struggle with Ramage and other officers until the officers were able
to place Wysong in handcuffs. “Whether there exists a probability of criminal activity is assessed
under a reasonableness standard based on an examination of facts and circumstances within an
officer’s knowledge at the time of an arrest.” Thacker v. City of Columbus, 328 F.3d 244, 255 (6th
Cir. 2003) (emphasis in original) (internal quotation marks removed). These actions support only
one conclusion—that the circumstances showed that at the time of Wysong’s arrest, the officers
reasonably believed based on the facts and circumstances that Wysong was engaged in criminal
activity.
That the officers later learned that Wysong was a diabetic suffering from low blood sugar
does not negate the earlier finding of probable cause. Wysong argues that his appeal concerns

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actions taken by the police only after they learned that he was a diabetic suffering from low blood
sugar, but we have already rejected the argument that “[w]hen subsequent developments disprove
the correctness of a previous police determination that probable cause exists, . . . the police no longer
have justification under the Fourth Amendment to continue the incarceration, and must release the
suspect.” Peet v. City of Detroit, 502 F.3d 557, 565 (6th Cir. 2007); see also Reynolds v. Jamison,
488 F.3d 756, 765 (7th Cir. 2007) (“The fact that an officer later discovers additional evidence
unknown to her at the time of the arrest, even if it tends to negate probable cause, is irrelevant—we
only care about what the officer knew at the time the decision was made.”). We stated in Peet stated
that policy does not support a requirement that investigators “reevaluate probable cause constantly
with every additional witness interview and scrap of evidence collected.” 502 F.3d at 565. Because
there is no genuine issue of material fact as to whether the officers had probable cause to arrest
Wysong at the time of his arrest, the officers are entitled to summary judgment on Wysong’s
constitutional claim of false arrest.
The officers are also entitled to summary judgment with respect to Wysong’s constitutional
claim of malicious prosecution because Shapiro made the decision to prosecute Wysong and there
is no evidence in the record that the officers misled Shapiro in any way. The Sixth Circuit
recognizes a constitutional claim for malicious prosecution in violation of the Fourth Amendment,
Thacker, 328 F.3d at 258-59, but we have not resolved the elements of a malicious prosecution claim
based upon the Fourth Amendment. Id.; see also Briner v. City of Ontario, No. 08-3731, 2010 WL
1141152, at *18 (6th Cir. Mar. 26, 2010). However, ‘[t]his court has held that a police officer cannot

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be liable for Fourth Amendment malicious prosecution when he did not make the decision to bring
charges, as long as the information he submitted to the prosecutor is truthful.” Kinkus v. Village of
Yorkville, Ohio, 289 Fed. App’x 86, 91 (6th Cir. 2008). We held in Kinkus that an Ohio police
officer who completed a police report and signed a criminal complaint form could not be held liable
because those documents were ultimately forwarded to the prosecutor who made the decision to
prosecute. Id. The court in Kinkus based its decision on Skousen v. Brighton High School, 305 F.3d
520, 529 (6th Cir. 2002), which held that when a police officer does no more than provide truthful
information to the prosecutor’s office, that officer cannot be held liable for malicious prosecution.
Here, there is no evidence that Ramage or the other officers did anything to cause Wysong to be
prosecuted other than provide the prosecutor with truthful information. Wysong points to the police
report prepared by Ramage, the criminal complaint filed by another patrolman in the Heath Police
Department, the Heath Intake Form for Misdemeanor Charges, and a response to an interrogatory
stating that Ramage participated in the decision to bring charges against Wysong, but none of these
documents challenge the fact that only Shapiro could make the decision to prosecute Wysong.
Therefore, the officers are entitled to summary judgment with respect to Wysong’s constitutional
claim of malicious prosecution.
Wysong argues that the officers should be liable because Shapiro based his decision to
prosecute upon false and misleading representations provided by the officers, but there is no
evidence to support these allegations. According to Wysong, the officers misled Shapiro both by
failing to provide Shapiro with the relevant information about Wysong’s diabetic seizure and by

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falsely reporting that Wysong was lucid during his arrest. The record shows, however, that the
reports from Ramage and Coulter informed Shapiro that Wysong’s actions may have been the result
of a diabetic seizure. Both reports clearly stated that Wysong claimed to be a diabetic and that while
still in custody he was treated by paramedics and taken to the emergency room as requested by the
paramedics. Coulter’s report even indicated that the paramedics informed the officers that Wysong’s
blood sugar level was 48. Wysong claims that the officers should have provided the emergency
department report in which Wysong’s emergency room doctor stated that Wysong’s actions were the
result of a medical condition and should not lead to arrest or criminal charges, but that report was
not transcribed until two days after Ramage and Coulter prepared their reports; Ramage testified at
his deposition that he did not become aware of the emergency department report until after Wysong
filed suit. Moreover, Wysong cannot raise a genuine issue of material fact as to whether Coulter’s
statement that Wysong was responsive to threats of mace was false because, as we noted in
Wysong’s previous appeal, Wysong claimed to have no memory of events that occurred during his
arrest. Wysong, 260 F. App’x at 849.
Finally, the officers are entitled to immunity on all of Wysong’s state law claims of malicious
prosecution and false arrest. Ohio Revised Code 2744.03(A) provides:
In a civil action brought against a political subdivision or an employee of a political
subdivision to recover damages for injury . . . caused by any act or omission in
connection with a governmental or proprietary function, the following defenses or
immunities may be asserted to establish nonliability:
(6) . . . the employee is immune from liability unless one of the following applies:

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(a) The employee’s acts or omissions were manifestly outside the scope of the
employee’s employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious purpose, in bad faith, or
in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section of the Revised
Code.
Wysong has not alleged application of the exceptions discussed in subpart (a) or (c), and no facts
justify the application of those subparts here. Because the officers had probable cause to arrest
Wysong and Wysong has not raised a triable question of fact on his claims that the officers withheld
information from or provided false information to Shapiro, Wysong cannot show that any of the
officers’ actions were wanton or reckless, in bad faith, or taken with malicious purpose. Therefore,
the officers are entitled to summary judgment on the basis of state law immunity.
For these reasons, the judgment of the district court is affirmed.

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