Lawsuit alleges law enforcement caused 2019 death; city, county seek dismissal, call it frivolous


WILMINGTON — The family of a man who died in law enforcement custody in 2019 is suing 11 Clinton County and City of Wilmington agencies and departments, among others, and 37 individuals associated with those entities — for a total of $27 million — alleging his death was caused by law enforcement and that the incident and investigations were “whitewashed.”

Many of those sued have filed motions to dismiss the suit, stating it is “frivolous” among many other reasons.

The plaintiffs allege that Marvin Andrew Napier Jr., 60, died due to his treatment by law enforcement on Nov. 25, 2019 at approximately 1:47 a.m.

The plaintiffs are suing a combination of entities and individuals — some directly involved in the initial incident, some involved in the investigation afterward and in the autopsy, and others whose only apparent involvement either directly or indirectly with the incident or the investigation is that they were contacted by the plaintiff(s) asking for additional probes of the incident and of the investigation.

The plaintiffs of the 167-page suit filed in December in Clinton County Common Pleas Court are Faith Mclemore, Mary Napier, Devin Napier, and “Marvin Andrew Napier, Jr. (Involuntary Plaintiff-deceased).”

The 11 defendants listed are: Clinton County Sheriff’s Office, Clinton County Prosecutor’s Office, Clinton County Commissioners, Wilmington City Prosecutor, Wilmington (sic; “Clinton County”) Coroner’s Office, Wilmington Police Department, Wilmington Fire Department, Wilmington City Mayor’s Office, Montgomery County Coroner’s Office, Wilmington City Council, and The Ohio Crime Victim Justice Center of Powell, Ohio.

The suit also lists names of 37 individuals who are part of the aforementioned entities, from all members of city council to the Clinton County Coroner’s Office investigator, to the pathologist in Montgomery County who conducted the autopsy, to a victims’ rights attorney and two victims’ rights advocates.

The City of Wilmington and the Clinton County Sheriff’s Office in December each filed motions to dismiss for various reasons including:

• The city calls it a “frivolous lawsuit” which “fails to allege a civil rights violation and it fails to connect any violation to the City of Wilmington parties.” Those parties include the mayor, each member of city council, and a total of 15 individuals associated with the city — even though the alleged incident occurred outside of the city — apparently because a private individual(s) contacted them stating the case needed to be investigated further.

• The county calls for the court to “strike the Complaint and Amended complaint as sham and false filings.”

• The non-profit Ohio Crime Victim Justice Center on behalf of three employees — a victims’ rights attorney and two victims’ rights advocates — filed their motion that plaintiffs’ suit “fails to allege a single cognizable claim against these Defendants.” It states that victims’ rights attorney Morgan Keilholz reviewed 121 pages of public documents — including the autopsy reports and the report from the forensics firm hired by the plaintiffs — and she “determined that there was insufficient evidence to determine that a victims’ rights violation occurred.”

Clinton County Common Pleas Judge John W. “Tim” Rudduck recused himself from the case in December. In January, the Ohio Supreme Court assigned the case to Judge J. Patrick Foley III of the Hamilton County Court of Common Pleas.

The lawsuit is being defended by the Ohio County Risk Sharing Authority (CORSA) retained firm Isaac Wiles in Columbus and attorney Jeffrey Stankunas.

The News Journal reported in September 2021 that the Ohio Attorney General’s Office agreed to review the death of Napier — at the request of Clinton County Prosecuting Attorney Andrew T. McCoy.

In a letter dated Sept. 27, 2021 to Napier’s daughter regarding referring the case to the Ohio AG’s office, McCoy stated, “I need to advise that you should draw no inference from this referral that I have found any evidence of criminal conduct. I believe Mr. Moyer’s review of the case was fair and impartial. I have made this referral so that you, as the daughter of Mr. Napier, together with his family, can have confidence that any decision relating to the matter is made by a professional and experienced office outside of Clinton County.”

“Mr. Moyer” refers to former Clinton County Prosecuting Attorney Richard Moyer, who died in September 2020.

The lawsuit states, “Plaintiffs in this suit are seeking compensatory damages of $1,000,000 and seeking punitive damages in the sum of $26,000,000 for damages and death that occurred during the in-custody wrongful killing of Marvin ‘Andy’ Napier. The sum was configured by the outcome of a similar death-in-custody case that took place in Minnesota, George Floyd (next of kin) vs. Derek Chauvin/City of Minneapolis. … We the plaintiffs, the next of kin to Marvin ‘Andy Napier’, are currently seeking justice and appropriate consequence for all the ones who are responsible for the wrongful whitewashed killing of our father and loved one, Marvin ‘Andy’ Napier.”

The suit states that the suit was filed “upon receiving an unbiased report from renowned forensic scientist Erich Speckin of which contridicts [sic] the stories told by the officers who were on scene that night of 11/25/2019” and that plaintiffs’ allege defendants committed “dereliction of duty, failure to follow proper procedure, falsifying police reports, forgery, tampering with evidence, complicity, coercion, excessive force, obstruction of justice, etc.”

Family and some community members have sought to have the case file reopened due to their belief that Napier’s death was suspicious, i.e. directly caused by law enforcement personnel.

In a March 17, 2020 letter to the sheriff’s office, Moyer wrote, “I have recently reviewed the aforementioned criminal file. I will be closing the file in our office based on the report from Montgomery County Coroner. The report indicates Mr. Napier died [due] to multiple drug intoxication (methamphetamine and amphetamine) with cardiomegaly contributing.”

The News Journal reported on Nov. 15, 2019 — 1o days before his death — that Napier was indicted by a Clinton County grand jury and he was charged with trafficking in methamphetamine and possessing methamphetamine.

Clinton County Sheriff’s Office Col. Brian Prickett told the News Journal last year, “We will let our investigative findings as well as the attorney general’s investigative finding speak for themselves as we certainly support this review by an outside agency.”

According to a Clinton County Coroner’s Office report, a sheriff’s deputy had reported Napier, of Reeder Road near Blanchester, was a passenger in a vehicle that a deputy was attempting to stop due to a traffic violation in the early morning hours of Nov. 25, 2019. The report states information from the CCSO that the vehicle stopped in a driveway on State Route 350 and Napier jumped out and started to run, and that “Napier became unresponsive when he was in custody.”

Deputies reported that they attempted CPR, 911 was called, and Wilmington EMS arrived but Napier could not be revived. Napier was pronounced dead at Clinton Memorial Hospital. Clinton County Coroner Ronald Seaman, M.D., was notified and ordered an autopsy. Napier’s body was transported to the Montgomery County Coroner’s Office.

By Tom Barr

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