MEMORANDUM OPINION AND ORDER
WILLIAM O. BERTELSMAN, District Judge.
This is an action by Charlie Jean Lilly under Section 1983 for violation of her federal constitutional rights by unlawful arrest, unlawful detainment, and a due process violation, and state law claims including, false imprisonment, assault, battery, malicious abuse of process, malicious prosecution, negligence/gross negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and defamation.
This matter is before the Court on Defendants' motion for summary judgment. (Doc. 52). The Court heard oral argument on December 9, 2013. Aaron Esmailzadeh represented the Plaintiff, and Jeffrey Mando represented the Defendants. Official court reporter Joan Averdick recorded the proceedings.
Having heard oral argument on this motion, the Court now issues the following Memorandum Opinion and Order.
On July 9, 2010, Charlie Jean Lilly (aka Leslie Sullivan Wood) ("Plaintiff"), drove back to Cincinnati from Louisville and southern Indiana, where she was visiting with her family and boyfriend. (Doc. 50 p. 185). She arrived home between 10:00 a.m. and noon. ( Id. at 192). Plaintiff was scheduled to work at the University of Cincinnati Hospital that evening and she wanted to take a nap before her shift, so she took a prescribed Ambien. (Doc 36-6 p. 86; Doc. 50 p. 188, 190). Plaintiff still could not sleep, so she went out on the balcony and did some yoga stretches. (Doc. 50 p. 207). Plaintiff did not remember locking the backdoor after completing her yoga routine. (Doc 36-6 p. 91).
She then got in the shower, and less than 5 minutes later she had a bad feeling and got out to take a peek around, but did not see anything unusual. (Doc. 36-6 p. 92). Within two minutes, she saw a shadow and was hit in the back of the head with something hard, she spun around, grabbed the shower curtain, was hit in the face, then she "totally put all" of her "body weight on the shower curtain, " and then she blacked out. ( Id. at 92-93).
She awoke with a bag over her head, a rag in her mouth, and she said it felt like somebody was giving her "a pap smear." ( Id. at 93). She said she then felt insertion of a penis, she moved, and the attacker punched her in the face. ( Id. ) Because of the bag over her head and because he attacked her from behind, she was unable to identify the attacker. (Doc. 36-3 p. 10). But she said he was short, that he did not weigh much, that he smelled like body odor, was wearing a ski mask, that he "had to have been a white man because the way he spoke to me it sounded like something my father would say, " and that "his penis was small." (Doc. 36-6 p. 92-97). Before fleeing, the attacker told her that if she took the bag off her head, he would kill her, so she waited no more than fifteen minutes before she called 911. ( Id. at 96).
Plaintiff said she had left her phone under her pillow to use as an alarm clock to wake her up for work. ( Id. at 98). At approximately 3:37 p.m., Plaintiff called Erlanger's 911 Dispatch Center. (Doc. 36-2 EPD 3). Plaintiff identified herself as Leslie Wood, reporting that she was attacked in her apartment, tied to her bed, and raped. (Doc. 36-3 p. 2, 6-7).
Officers responded, including: Lt. Kevin Gilpin, Detective Kim Klare, Officer Jill Stulz, Officer Matt Kremer, Sgt. Douglas Eagler, Lt. Anthony Wilson, and Captain Michael Jansing. (Doc. 36-2 EPD 3). Sgt. Eagler and Officers Kremer and Stulz were the first to arrive at the scene. ( Id. ) Sgt. Eagler and Officer Stulz attempted to enter through the front door but it was locked. (Doc. 55 p. 25-27; Doc. 54 p. 18). Officer Kremer, after climbing onto the second story balcony, found its door locked, and, after obtaining permission, kicked in the door. (Doc. 36-4 at Kremer Lapel Video 00:00 to 00:43). He then let Sgt. Eagler and Officer Stulz in through the front door. ( Id. )
The police officers found Plaintiff tied to her bed with red bed sheets, a plastic bag was over her head, and she was holding her cell phone. (Doc. 36-401:15 to 01:23). The officers cleared the rest of the apartment and did not find anyone. ( Id. at 01:24 to 01:54).
Officer Kremer took pictures of the scene, and Sgt. Eagler ordered Officer Stulz to monitor ingress and egress to the crime scene. (Doc. 55 pp. 40, 46; Doc. 54 p. 23). This concluded the role of Officer Kremer and Stulz in the investigation. (Doc. 52 pp. 51-53; Doc 54 pp. 24-26). Lt. Wilson, Capt. Jansing, and Sgt. Eagler left the scene and played no further role in the investigation. (Doc. 51 pp. 24-27; Doc. 53 pp. 27-31; Doc. 55 pp. 50, 54-57).
Detective Klare followed Plaintiff to the hospital, to ensure evidence was properly collected and to interview her. (Doc. 56 p. 64-65). Lt. Gilpin, the head of Erlanger's detectives, discussed the case with Detective Klare. (Doc. 56 pp. 101-102).
While at Plaintiff's apartment, several officers noted inconsistencies between Plaintiff's account of the attack and the scene. First, Plaintiff's account was that the bathroom was where a violent struggle took place. Plaintiff alleged that the unknown assailant hit her in the back of the head with a glass blender, that she turned, grabbed the shower curtain and put all her weight on it, was hit again, but this time in the face, and then she blacked out. (Doc. 36-3 p. 6; Doc. 36-6 pp. 92-93). She ...