Full opinion text
ORDER SPIEGEL, Senior District Judge. This matter is before the Court on Defendants’ Motions for Summary Judgment (docs. 128 & 131); Plaintiffs’ Response (doc. 139); and Defendants’ Replies (docs. 140 & 141). In addition the Court held a hearing in this matter on November 16, 2000 (doc. 142). BACKGROUND A. Introduction to the Parties and the Complaint The Estate of Clarissa Ann Culberson, Clarissa Culberson’s parents, Debra and Roger Culberson, and her sister, Christina Marie Culberson (hereinafter, collectively referred to as “Plaintiffs” or the “Culber-son Family”) originally brought this action on October 24, 1997, pursuant to the “Violence Against Women Act of 1994,” Title 42 U.S.C. § 13981, et seq., additional civil rights and due process violations, pursuant to 42 U.S.C. § 1983, and three state law torts against Vincent Doan (hereinafter, “Doan”), Lawrence Baker, Tracey Baker (hereinafter, collectively referred to as the “Bakers” or the “Baker Family”), Richard Payton, individually and in his official capacity as Chief of Police of the Village of Blanchester (hereinafter, “Defendant Pay-ton” or “Chief Payton”), and the Village of Blanchester (hereinafter, the “Village” or the “Village of Blanchester”) (doc. 1). The Village of Blanchester is a unit of government organized under the laws of the State of Ohio and is physically located within the jurisdiction of Clinton County (Id.). In addition, Plaintiffs allege in their Complaint that Defendant Richard Payton has at all times relevant to this action been the Chief of Police of the Village of Blan-chester, Ohio (Id.). Furthermore, Plaintiffs assert that Chief Payton is the highest ranking law enforcement official in the Village (Id.). Plaintiffs further allege that all of his actions, as alleged in the Complaint, were taken within the scope of his employment as an employee of the Village of Blanchester and that is why they are suing Chief Payton in his individual, as well as official capacity (Id.). Jurisdiction over the federal civil rights claims is conferred by Title 28 U.S.C. §§ 1331 and 1343(3)-(4). Jurisdiction over the state law claims is conferred by Title 28 U.S.C. § 1367(a). B. Statement of the Facts The facts as alleged by Plaintiffs in their Complaint (see doc. 1) and in their Response (see doc. 139) concerning the disappearance and subsequently-ruled death of Clarissa Culberson (hereinafter, “Carrie” or “Carrie Culberson”) are sketchy, yet they tell a grim tale of domestic abuse. Plaintiffs Debra and Roger Culberson are the parents of Carrie Culberson, who was allegedly killed by Vincent Doan on or about August 28, 1996, at the age of 22 years old (see docs. 1 & 139). Plaintiff Christina Culberson is the sister of Carrie Culberson. Vincent Doan is the son of Defendant Lawrence Baker and Doan is the half-brother of Defendant Tracey Baker. In the Complaint, Plaintiffs allege that Chief Payton is a close, personal friend of the individually named Defendants. Carrie lived with her mother and sister in Blanchester, Ohio. During 1995, Carrie and Doan dated on a regular basis. Plaintiffs allege that, in the Fall of 1995, Doan began to physically abuse Carrie. Plaintiffs contend that on one occasion Doan “tightly clamped his hand over the nose, mouth and throat of [Carrie], who injured her face trying to pry his fingers off her mouth” (see doc. 1 ¶ 13). Plaintiffs maintain that the abuse continued in 1996, pointing to an incident in which Doan smashed the windows of Carrie’s car as she sat in the vehicle. Although Carrie allegedly reported the incident to the Village of Blanchester Police Department, Plaintiffs assert that no charges were ever filed against Doan and the abuse by Doan intensified. For example, Plaintiffs allege that Doan subsequently attacked Carrie in April, July, and August of 1996. As a result of the April 1996 attack, Plaintiffs contend that Doan caused injuries to Carrie’s head and kidneys. Thereafter, Carrie allegedly filed a report with the Village police, however, the police did not bring any charges against Doan. On July 5, 1996, Plaintiffs allege that Doan forced his way into Carrie’s home and threatened her in order to prevent Carrie from having any contact with other men. During this incident, Doan allegedly pushed Carrie’s mother, Debra Culberson, in an unsuccessful attempt to assault Carrie. Debra Culberson also filed a criminal report with the Village police regarding the incident, but asserts that, the police did not respond to the report, and, thus, the abuse was allowed to continue. For instance, on July 28, 1996, Plaintiffs allege that Doan again attacked Carrie when she came to his house while on an errand. Plaintiffs assert that, during this assault, he threw Carrie across a room and struck her in the head with a metal object, causing her to need surgical staples in her scalp. Carrie again sought criminal charges after this attack through the Village police. However, according to Plaintiffs, Carrie’s attempts to get help were again unsuccessful and Doan was never investigated or arrested for his assaults that were inflicted upon her. On August 26, 1996, approximately three days before Doan allegedly murdered Carrie, Plaintiffs assert that he held her at gunpoint in a barn located within the area of the Village of Blanchester. On August 29, 1996, at approximately 12:20 a.m., a neighbor of Doan witnessed him hitting Carrie in the head. At approximately 1:30 a.m., Doan allegedly spoke with his father, Lawrence Baker, on the telephone about an undisclosed matter. At 3:15 a.m., Doan allegedly arrived at the residence of his brother, Tracey Baker, with blood on his chest, arms, and pants. Doan then allegedly took a shower and left the residence with Tracey Baker, who was carrying a handgun and garbage bags. On the same morning of August 29, 1996, at approximately 11:00 a.m., Debra Culberson reported her daughter missing to the Village of Blanchester Police Chief, Defendant Payton. Debra Culberson also reminded Chief Payton at that time of the previous threats Doan had made to Carrie and the criminal reports filed by Carrie during the preceding weeks. Plaintiffs contend that Chief Payton responded with the question, “Why does she [Carrie] keep going back to it?” (doc. 1 ¶ 21). Plaintiffs assert that Chief Payton did not investigate Doan, but went instead to Lawrence Baker’s home later that day and allegedly warned him that Carrie had been reported missing and that Doan would be a suspect. Lawrence Baker’s home is located within the jurisdiction of Clermont County, and is, therefore, located outside the jurisdiction of Clinton County, and, thus, allegedly outside of the jurisdiction of Chief Payton (see docs. 128 & 131). On September 3, 1996, the Village’s police department, along with other law enforcement personnel from surrounding jurisdictions, performed a search of Lawrence Baker’s junk yard, which, as stated earlier, was actually located in Clermont County. Specifically, this search was conducted by law enforcement officers from the Cler-mont County Sheriffs Office, the Brown County Sheriffs Office, and the Village of Blanchester’s Police Department. However, according to Plaintiffs, Chief Payton was either the lead law enforcement official on the scene or the officer who was in charge of the actual search of Lawrence Baker’s property. During the September 3, 1996-search, a blood hound and a cadaver dog brought a small pond located on Lawrence Baker’s property to the attention of the search team, indicating that the dogs may have detected Carrie’s scent. The search team officers allegedly informed Chief Payton that they wanted the pond drained on the Baker Family property, however, Chief Payton inexplicably declined to proceed with the search that day and advised everyone to leave the premises. Lawrence Baker was supposedly present during the search, as well as a witness to its termination. When the pond was drained the next day, footprints were visible on the bottom of the pond and a muddy path of weeds led away from the pond, which possibly indicated that something or someone was recently removed from the pond, or that someone had recently entered the pond. Carrie’s disappearance was eventually ruled a homicide even though her body was never found. Subsequently, Doan was charged with Carrie’s murder. Tracey Baker was charged with obstruction of justice, tampering with evidence, and gross abuse of a corpse. Lawrence Baker was also criminally charged in Carrie’s disappearance. On August 7, 1997, a jury found Doan guilty of aggravated murder with one capital offense specification, and three counts of kidnaping in the Clinton County Court of Common Pleas. He was sentenced to life imprisonment without parole. Tracey Baker’s trial began in the Clinton County Court of Common Pleas on May 20, 1998. On June 4, 1998, a jury found Tracey Baker guilty of two counts of obstruction of justice and one count of tampering with evidence. Tracey Baker was found not guilty of gross abuse of a corpse. The trial of Lawrence Baker began in the Clinton County Court of Common Pleas on August 18, 1998. On August 25, 1998, the jury returned three not guilty verdicts against Lawrence Baker. C. Procedural History On October 24, 1997, more than a year after Carrie’s disappearance, Plaintiffs filed a civil complaint in federal court against Defendants Vincent Doan, Lawrence Baker, Tracey Baker, Richard Pay-ton and the Village of Blanchester, seeking both monetary and injunctive relief (see doc. 1). In their Complaint, Plaintiffs claim that Doan’s actions toward Carrie were based primarily on account of her gender in violation of the Violence Against Women’s Act of 1994, 42 U.S.C. § 13981 (Id.). Furthermore, Plaintiffs assert that the actions of Defendants Vincent Doan, Lawrence Baker, Tracey Baker, and Police Chief Payton “were willful, wanton, malicious, or in reckless disregard or indifferent to the safety of Carrie Culberson and to the peace of mind, rights, including rights of familial association of Debra Cul-berson, Roger Culberson, and Christina Culberson” (Id. ¶ 34). Plaintiffs also claim that Defendants violated their civil rights under 42 U.S.C. § 1983, as protected by the Fourteenth Amendment of the Constitution (Id.). Additionally, Plaintiffs assert state law claims of emotional distress, wrongful death, obstruction of justice, and conspiracy against all Defendants (Id.). Shortly thereafter, Defendants filed their Answers asserting a general denial of Plaintiffs’ causes of actions and defending with several affirmative defenses in response to Plaintiffs’ claims (docs. 2, 3, 7, 8 & 58). In their Answers, Defendants strongly dispute many of Plaintiffs’ material, factual, and legal allegations contained in the Complaint and defend their actions by asserting that they acted reasonably under the circumstances, without malice or fault, and contending that Defendants Doan and Tracy Baker are solely responsible for the tragic death of Carrie Culberson, as well as the resulting and expected grief of Plaintiffs (Id.). As earlier noted, in this action, Plaintiffs seek injunctive relief ordering Defendants to disclose the location of Carrie Culber-son’s corpse so that she may be given an appropriate burial (doc. 1). In addition, Plaintiffs request compensatory and puni-five damages, as well as reasonable attorney fees (Id.). The subsequent procedural history of this case in federal court can only be described as complex and lengthy. On July 1, 1998, Defendant Doan filed a Motion to Dismiss Plaintiffs’ Complaint asserting that Count I of the Complaint, “The Violence Against Women’s Act,” enacted by the Congress was unconstitutional (doc. 12). The civil provisions of the Violence Against Women’s Act of 1994 (hereinafter, the “VAWA” or “the Act”), Pub.L. No. 103-322 § 40001-40703, 108 Stat. 1796, 1902-55, provides a claimant with a civil right to be free from crimes of violence motivated by gender and a federal civil rights cause of action for victims of crimes of violence motivated by gender. See Title 42 U.S.C. §§ 13981(a)-(c). In order to establish a cause of action under the VAWA, the claimant must show (1) that she was a victim of a crime of violence and (2) that the crime was motivated based on her gender. 42 U.S.C. § 13981(c). The claimant does not need to show that there has been a prior criminal complaint, prosecution, or conviction against the defendant. 42 U.S.C. § 13981(e)(2). The Act defines a “crime of violence” as “an act or series of acts that would constitute a felony ... whether or not those acts have actually resulted in criminal charges, prosecution, or conviction,” 42 U.S.C. § 13981(d)(2)(A), or acts that would constitute a felony “but for the relationship between” the parties, i.e., marriages in states where laws exist to provide spousal immunity. 42 U.S.C. § 13981(d)(2)(B). Additionally, the Act defines the term “crime motivated by gender” as a crime committed by the defendant “because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender....” 42 U.S.C. § 18981(d)(1). In our April 8, 1999 Order, this Court joined many other federal courts in holding that the VAWA was indeed constitutional, and, therefore, Plaintiffs’ Complaint stated a claim upon which relief could be granted (doc. 56). See Culberson v. Doan, 65 F.Supp.2d 701, 714 (S.D.Ohio Apr.8, 1999). On September 4, 1998, Plaintiffs filed a Cross-Motion for Partial Summary Judgment against Defendant Vincent Doan only, alleging that there were no genuine issues as to any material fact and that Plaintiffs were entitled to judgment as a matter of law as to Claim I, violation of the VAWA (doc. 24). On October 12, 1999, this Court denied Plaintiffs’ Motion for Summary Judgment as to Count I, the VAWA, of the Complaint for the following reasons: ‘Procedural and discovery differences between the criminal and civil forums coupled with a defendant’s dilemma over whether to testify in his own behalf, or present any defense at the criminal trial, make preclusion in this instance a precarious practice and, we believe, unwise practice.’ Phillips, 113 Ohio App.3d at 382, 680 N.E.2d at 1284; see also Walden v. State, 47 Ohio St.3d 47, 51-52, 547 N.E.2d 962, 965-67 (1989) (holding that there are several qualitative differences between criminal and civil actions which ‘militate against giving criminal judgments preclusive effect in civil or quasi-civil litigation’). We agree with Plaintiffs in their general position that the Ohio courts have made exceptions, in the interest of justice and fairness, to the mutuality requirement in regards to issue preclusion. However, we must also note that the mutuality requirement, though weakened with exceptions, has not been expressly overruled by subsequent case law or by statute. Plaintiffs all but concede this point in their briefs, but they also plead with this Court to find in their favor so that ‘Carrie Cul-berson’s parents and sister should not be forced to relitigate defendant Doan’s guilt’ (doc. 32). (doc. 92); see also Culberson v. Doan, 72 F.Supp.2d 865, 873 (S.D.Ohio Oct.12, 1999) (same). Subsequent to this Court’s April 1999 and October 1999 decisions, the United States Supreme Court in the case of United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 1754, 146 L.Ed.2d 658 (2000) found the VAWA unconstitutional finding, in pertinent part: We accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local. In recognizing this fact, we preserve one of the few principles that has been consistent since the [Commerce] Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. Morrison, 120 S.Ct. at 1754 (internal citations omitted). Shortly thereafter, Plaintiffs filed a stipulation of dismissal of “all claims against [Defendants] Vincent Doan, Tracey Baker, and Lawrence Baker” (doc. 97). In addition, in the notice of dismissal, Plaintiffs further voluntarily dismissed all claims against Defendants Richard Payton and Village of Blanchester “except the 42 U.S.C. Section 1983 due process claim, the intentional emotional distress claim, and the obstruction of justice claim” (Id.). Furthermore, Plaintiffs asserted that all of the Parties to this action were in “agreement to this dismissal” (Id.). D. The Court’s Holding On September 29, 2000, Defendants filed their Motions for Summary Judgment asserting that there are no genuine issues of material fact, and, therefore, they are entitled to judgment in their favor as a matter of law (docs. 128 & 131). Thereafter, Plaintiffs filed their Response (doc. 139), followed by Defendants Replies (docs. 140 & 141). In addition, the Court held a hearing in this matter on November 16, 2000 (doc. 142). This matter is now ripe for the Court’s determination. Before the Court are two Motions for Summary Judgment (docs. 128 & 131). The moving parties consist of two Defendants, the former Police Chief for the Village of Blanchester and the Village itself (doc. 1). Both Motions have been fully briefed and a hearing was held in this matter on November 16, 2000. The non-moving consist of three Plaintiffs who have filed their Response to Defendant’s Motions (doc. 139). Having reviewed this matter and for the reasons stated in the Discussion Section of this Order, as well as our finding that genuine issues of material fact exist in regards to many of the issues in this action, the Court concludes that Defendants’ Motions for Summary Judgment should be GRANTED-IN-PART and DENIED-IN-PART (docs. 128 & 131). The Court’s holding did not take into consideration the purported “no contest” plea agreement entered into by Chief Pay-ton, as a result of his official actions that were taken on September 3, 1996 at the Baker Family property, because we believe that issue would be better decided in a motion-in-limine, rather than on a motion for summary judgment. Rather, This Court shall address that issue in the Conclusion Section of this Order, as well as a Scheduling Order for the trial on the merits. STANDARD OF REVIEW The narrow question that we must decide on a motion for summary judgment is whether there exists a “genuine issue as to any material fact and [whether] the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The Supreme Court elaborated upon the appropriate standard in deciding a motion for summary judgment as follows: [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant’s case. Id. at 321, 106 S.Ct. 2548; Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir.1992); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). If the moving party meets this burden, then the non-moving party “must set forth specific facts showing there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Guarino, 980 F.2d at 405. As the Supreme Court stated in Celotex, the non-moving party must “designate” specific facts showing there is a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Guarino, 980 F.2d at 405. Athough the burden might not require the non-moving party to “designate” facts by citing page numbers, “ ‘the designated portions must be presented with enough specificity that the district court can readily identify the facts upon which the non-moving party relies.’ ” Guarino, 980 F.2d at 405 (quoting InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990)). Summary judgment is not appropriate if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Conclusory allegations, however, are not sufficient to defeat a motion for summary judgment. McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir.1990). DISCUSSION A. Introduction An action under Title 42 U.S.C. § 1983 is supplemental to a common law action arising out of the same factual circumstances and these actions may be pursued simultaneously. Braley v. City of Pontiac, 906 F.2d 220, 223 (6th Cir.1990) (citing Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)). What is involved in this case is an alleged deprivation of Plaintiffs’ liberty interest without due process of law. This can be analyzed under procedural and substantive due process analyses. The Plaintiffs, Debra Culberson, individually and as Executrix of the Estate of Clarissa Culberson, Christina Marie Cul-berson, and Roger Culberson are maintaining this action for federal civil rights and Ohio state law tort damages against the Defendants, Richard Payton and the Village of Blanchester (see doc. 1). All Defendants other than Chief Payton and the Village of Blanchester have been dismissed from this action (see doc. 97). In addition, as a result of Plaintiffs’ Voluntary Entry of Dismissal filed on December 30, 1999, the only remaining claims against Defendants Payton and the Village are in regards to Plaintiffs’ Fourteenth Amendment procedural and substantive due process claims, pursuant to 42 U.S.C. § 1983, and two other Ohio state law claims for intentional infliction of emotional distress and obstruction of justice (see docs. 1 & 97). 1. The Parties’Arguments In his Motion for Summary Judgment, Defendant Payton asserts that he is entitled to summary judgment on all claims set forth in Plaintiffs’ Complaint due to the fact that, with respect to the 42 U.S.C. § 1983 claim, Plaintiffs can show no constitutional violation (docs. 128 & 141). In addition, Defendant Payton maintains that the federal doctrine of qualified immunity bars federal liability against Defendant Payton because his actions or inactions constituted the performance of a discretionary act, and are, therefore, objectively reasonable (Id.). With respect to the Ohio state law claims asserted by Plaintiffs, Defendant Payton defends by pointing out that the claim of obstruction of justice does not give rise to a civil cause of action pursuant to Ohio state law (Id.). Furthermore, Defendant Payton counters Plaintiffs’ allegations by asserting that he is entitled to Ohio state law immunity under Ohio Rev. Code Ann. § 2744, et seq., as well as the public duty doctrine, because he did not act with a malicious purpose, in bad faith, or recklessly (Id.). Lastly, Defendant Payton contends Plaintiffs have put forth no evidence to establish either intentional infliction of emotional distress or obstruction of justice on his part (Id.). Defendant Village of Blanchester adopts the same or similar facts, arguments, and conclusions in their separate Motion for Summary Judgment that Defendant Pay-ton does, except, Defendant Village adds the defense that it cannot be held liable for the actions of Defendant Payton based upon respondent superior, and Plaintiffs cannot point to any custom, policy, “deliberate indifference,” or procedure that led to their alleged damages based on the Village’s action in this case (docs. 131 & 140). In addition, Defendant Village asserts that it has federal and state law immunity in regards to Plaintiffs’ remaining claims (doc. 140). In their Response to Defendants’ Motions for Summary Judgement, Plaintiffs assert that there are a number of disputes in regards to the genuine issues of material fact remaining, and, thus, those issues preclude any judgment in favor of Defendants as a matter of law (doc. 139). Plaintiffs contend that this action is brought by the family of Carrie Culberson in order to recover the body of Carrie and to secure damages for its deprivation, which, regrettably, has not yet yielded the current location of the body (Id.). However, Plaintiffs allege that they do know where the body was on the date of September S, 1996 (Id.). According to Plaintiffs, this is the date that a search was being conducted by Chief Payton at a junkyard owned by Doan’s father, Lawrence Baker (Id.). Plaintiffs claim that both a bloodhound and a cadaver dog “hit” on the pond at the junkyard during the search (Id.). Plaintiffs’ argue that this meant Carrie’s body was, more likely than not, present in the pond on that fateful day (Id.). In addition, Plaintiffs maintain that both Lawrence Baker and Chief Payton were aware of the actions by the police dogs, yet, Chief Payton sent all of the law enforcement officers home rather than proceed to immediately search the pond or secure the area with police (Id.). Furthermore, Plaintiffs’ allege that when the pond was eventually drained the next day, no body was found, however, footprints and markings in the bottom of the pond, as well as the presence of mud on the path leading from the pond allegedly makes it clear that the Baker Family had removed Carrie’s body from the pond within that 24-hour period (Id.). Plaintiffs conclude their arguments by charging that the conduct of Chief Payton was so shocking and outrageous because his actions allegedly blocked the Culber-son’s Family only chance to recover the body of Carrie Culberson (Id.). According to Plaintiffs, as a result of Chief Payton’s actions, their family has been unable to provide a proper burial for Carrie, and, therefore, they have been unable to bring a proper closure to this tragic loss (Id.). Plaintiffs argue that, since this Court has previously held that people have a property right in the bodies of their deceased family members, material facts are clearly at issue making this case one that must be submitted to a jury, and, thus Defendants’ Motions for Summary Judgment must be denied (Id.). 2. Rule 56 — Plaintiffs’ Favorable Facts Reviewed Rule 56 of the Federal Rules of Civil Procedure permits this Court to enter summary judgment for Defendants only if there are no genuine issues of material fact and Defendants are entitled to judgment as a matter of law. In determining whether there are genuine issues of material fact for trial, this Court must examine the evidence in the light most favorable to Plaintiffs. With this in mind, the Court believes that we must view the allegations surrounding the September 3, 1996-search of Lawrence Baker’s junkyard and pond by Chief Payton in a light most favorable to Plaintiffs. We can summarize those favorable facts as follows. According to Plaintiffs, based on the fact that the bloodhounds and cadaver dogs “hit” on, or exhibited positive scent reactions to the pond located on Lawrence Baker’s property, as well as the information available to him at the time, Chief Payton either knew, suspected, or should have known that Carrie’s body was in the pond at the time of the search. By calling off the search, leaving no police to guard the pond, and by waiting a full 24 hours before resuming the search of the Baker Family property, Plaintiffs claim that Chief Payton’s reckless or intentional actions caused the loss of Carrie’s body forever, and, therefore, Chief Payton was directly responsible for the deprivation of the Culberson Family’s property right in the remains of Carrie. In light of these facts and when those facts are viewed in a light most favorable to Plaintiffs, we will now address the merits of Defendants’ Motions for Summary Judgment (docs. 128 & 131). B. Count II — Title 42 U.S.C. Section 1983. 1. Introduction to Section 1983 Title 42 U.S.C. § 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable in an action at law, suit in equity, or other proper proceeding for redress. Id.; see also Board of County Comm’rs of Bryan County v. Brown, 520 U.S. 397, 402-403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). To establish a claim under § 1983, two elements are required: (1) conduct committed by a person acting under the color of state law that (2) deprives plaintiffs of rights, privileges, or immunities secured by the Constitution or the laws of the United States. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Sargi v. Kent City Board of Educ., 70 F.3d 907, 910 (6th Cir.1995). While a municipality may be held liable under 42 U.S.C. § 1983 for a constitutional violation directly attributable to it, § 1983 does not impose vicarious liability on a municipality for the constitutional torts of its employees. See Monell v. Department of Soc. Servs. of the City of New York, 436 U.S. 658, 692, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Therefore, in order to state a claim against a city or county under § 1983, a plaintiff must show that his injury was caused by an unconstitutional “policy,” “custom,” or by “deliberate indifference” in regards to the actions of the municipality. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). In regards to the “deliberate indifference” standard, a plaintiff “must demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences. A showing of simple or even heightened negligence will not suffice.” Board of County Comm’rs, 520 U.S. at 407, 117 S.Ct. 1382 (quoting City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). “ ‘[Djeliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Board of County Comm’rs, 520 U.S. at 410, 117 S.Ct. 1382. In other words, the risk of a constitutional violation arising as a result of the inadequacies in the municipal policy must be “plainly obvious.” Id. at 411, 117 S.Ct. 1382. Furthermore, a plaintiff ordinarily cannot show that a municipality acted with deliberate indifference without showing that the municipality was aware of prior unconstitutional actions of its employees and failed to respond. Board of County Comm’rs, 520 U.S. at 415, 117 S.Ct. 1382; City of Canton, 489 U.S. at 390-91, 109 S.Ct. 1197; Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir.1997). As previously stated, a governmental entity may not be held liable under § 1983 for an employee’s conduct on the basis of respondeat superior. Monell, 436 U.S. at 690-691, 98 S.Ct. 2018. Rather, plaintiffs must show that the governmental entity itself is the wrongdoer. Collins v. City of Harker Heights, 503 U.S. 115, 122, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Governmental defendants may not be found liable unless plaintiffs can establish that an officially executed policy, or the tolerance of a custom, leads to, causes, or results in the deprivation of a constitutionally protected right. Collins, 503 U.S. at 122-23, 112 S.Ct. 1061. An act performed pursuant to a “custom” not formally approved by an appropriate decision maker may subject a government entity to liability on the theory that the relevant practice is so widespread as to have the force of law. Board of County Comm’rs, 520 U.S. at 404, 117 S.Ct. 1382. To show the existence of an offending custom or policy, plaintiffs must adduce specific facts supporting their claim — conclusory allegations are insufficient. Taylor v. Canton Police Dep’t, 544 F.Supp. 783, 789 (N.D.Ohio 1982). In addition to identifying conduct attributable to the government entity (i.e., a governmental policy, custom, or deliberate indifference), a § 1983 plaintiff must also demonstrate that the government entity was the “moving force” behind the injury alleged. Board of County Comm’rs, 520 U.S. at 403-04, 117 S.Ct. 1382. That is, plaintiff not only must show that the governmental action was taken with the requisite degree of culpability but also must demonstrate that there exist a direct causal link between the governmental action and the deprivation of federal rights. Id. at 404, 117 S.Ct. 1382; see also Van Hull v. Marriott Courtyard, 87 F.Supp.2d 771, 779 (N.D.Ohio 2000). For purposes of these Motions and because none of the Parties to this action have taken a contrary position, the Court will assume that Chief Payton was a “state actor” as of September 3, 2000. The issues are whether there is evidence that a constitutional violation occurred, and, if so, whether there is sufficient evidence to show that a municipal policy, custom, or “deliberate indifference” on the part of Defendants caused the violation of Plaintiffs’ rights. Plaintiffs claim that the Due Process Clause of the Fourteenth Amendment imposed a duty on Chief Payton that he allegedly violated by depriving the Culber-son Family of the right to recover and possess the body Carrie Culberson. In fact, Plaintiffs cite to an earlier Order of this Court in regards to this case that purport to recognize their right and the potential violation of that right: In this case, we first find that Plaintiffs, being Carrie’s next of kin, have a protected property interest in the remains of Carrie’s body under the Due Process Clause of the Fourteenth Amendment. Brotherton v. Cleveland, 923 F.2d 477, 481 (6th Cir.1991 ) (recognizing that ‘the human body is a valuable resource’ and that, ‘The importance of establishing rights in a dead body has been, and will continue to be, magnified by scientific advancements.’); see also Whaley v. County of Tuscola, 58 F.3d 1111, 1114 (6th Cir.1995) (acknowledging the Broth-erton court’s holding that, “the aggregate of rights granted by the state of Ohio to [the next of kin] rises to the level of a ‘legitimate claim of entitlement’ in the [deceased person’s] body, ... protected by the due process clause of the fourteenth amendment,” as the law of the Circuit). (doc. 139) (quoting Culberson v. Doan, 65 F.Supp.2d 701, 715-16 (S.D.Ohio 1999)). 2. Procedural Due Process A cause of action under § 1983 is not available in a case involving deprivation of property without due process of law if there exist an adequate state remedy that comports with procedural due process. Parratt v. Taylor, 451 U.S. 527, 543-44, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The Sixth Circuit in Wilson v. Beebe, 770 F.2d 578, 584-85 (6th Cir.1985) extended the rule in Parratt to the deprivation of a liberty interest. “The focus in a procedural due process claim, where one has been deprived of life, liberty, or property, is upon what process is due in the event of such a deprivation.” Hilliard v. Walker’s Party Store, Inc., 903 F.Supp. 1162, 1177 (E.D.Mich.1995). “Merely stating that one has been deprived of a protected interest through an unauthorized government practice is insufficient to state a claim for procedural due process where the plaintiff has available to him state procedures which will provide a remedy for the deprivation.” Hilliard, 903 F.Supp. at 1177 (citing Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Watts v. Burkhart, 854 F.2d 839, 843 (6th Cir.1988)). In order to state a valid due process claim, a plaintiff must show a deprivation of property under color of state law. See Brotherton v. Cleveland, 923 F.2d 477, 479 (6th Cir.1991). A plaintiff must also show that: (1) the conduct was caused by an “established state procedure rather than random and unauthorized action”; or (2) the means of redress for property deprivations provided by the State of Ohio fails to satisfy the requirements of procedural due process. Brotherton, 923 F.2d at 479 (citing Parratt, 451 U.S. at 537, 101 S.Ct. 1908). Plaintiffs rely on Brotherton in order to show that they have alleged a deprivation of a property right under color of state law. In Brotherton, a man’s family alleged that there was a violation of their procedural due process rights because the man’s corneas were removed by the county coroner without the man’s consent, or without the consent of the decedent’s surviving next of kin. Id., 923 F.2d at 478. Specifically, in Brotherton, Dr. Cleveland, the Hamilton County Coroner, re-' moved the corneas from dead bodies pursuant to an internal policy and procedure by the Coroner’s Office to remain deliberately ignorant of the wishes of the deceased’s next of kin. Id. This policy was derived from an interpretation of Ohio law. Id. The Sixth Circuit ruled that the next of kin had a protected property interest in the dead bodies in light of the rights granted by Ohio law, and, because of the removal of the corneas, pursuant to the corner’s policy of removing the corneas without a predeprivation hearing. Id. at 481-82. In the case at bar, Defendants argue that Plaintiffs have not shown that the deprivation was caused by an “established state procedure” and was not a random or unauthorized act on the part of Chief Payton, as was clearly the case in Brotherton. Id., 923 F.2d at 482; see also Parratt, 451 U.S. at 535, 101 S.Ct. 1908. A majority of the courts confronted with the issue of whether a property interest can exist in a dead body have found that a property right of some kind does exist and often refer to it as a “quasi-property right.” See, e.g., Brotherton v. Cleveland, 173 F.3d 552, 556 (6th Cir.1999) (“In 1991, this court decided Brotherton I, in which we reversed the district court, reaching only the due process issue. We explained that [Deborah] Brotherton had a property interest in Steven’s [Brotherton] body, that Ohio failed to provide necessary pre-deprivation procedures, and that ‘the policy and custom of the Hamilton County coroner’s office are an established state procedure necessitating predeprivation procedures.’”) (citing Brotherton I, 923 F.2d at 479); Whaley v. County of Tuscola, 58 F.3d 1111, 1114 (6th Cir.1995) (“Because Brotherton [I and II] is the law of this Circuit, our decision in the present case turns on a comparison of Ohio and Michigan law. If Michigan recognizes the same basic rights in a deceased person’s body as Ohio, then Brotherton [I and II] controls.... After reviewing Ohio and Michigan law, we conclude that they are in substance the same regarding the next of kin’s rights in a deceased relative’s body. If anything, Michigan is even more explicit than Ohio in its acknowledgment of these rights.”); Soliday v. Miami County, No. C-3-91-153, 1993 WL 1377511, at *9 (S.D.Ohio Nov.22, 1993) (“Based upon the Sixth Circuit’s decision in Brotherton I, this Court concludes that the Plaintiff has stated a constitutional claim for the deprivation of property without due process of law, in violation of the Fourteenth Amendment.”); Arnaud v. Odom, 870 F.2d. 304, 308 (5th Cir.1989) (“Louisiana has indeed established a ‘quasi-property’ right of survivors in the remains of their deceased relatives.”); Fuller v. Marx, 724 F.2d 717, 719 (8th Cir.1984) (“Under Arkansas law, the next of kin does have a quasi-property right in a dead body.”); In re Estate of Moyer, 577 P.2d 108, 110 n. 5 (Utah 1978) (same). The Court agrees with Defendants in that Plaintiffs have not offered any evidence that Chief Payton or the Village of Blanchester had an established internal office policy or procedure of abandoning criminal investigations, intentionally or recklessly assisting criminal suspects in their disposal of evidence, or depriving the citizens of the Village of Blanchester of their constitutionally protected property right to recover the remains of their deceased relatives. “Where a plaintiff fails to provide evidence that the alleged conduct was anything other than a random unauthorized act, the plaintiff must show that the means provided by the state to remedy the conduct are inadequate.” Barrett v. Outlet Broadcasting, Inc., 22 F.Supp.2d 726, 743 (S.D.Ohio 1997). In addition to this procedural due process claim, Plaintiffs have brought a federal substantive due process claim, as well as state law claims against Defendants in order to redress Defendants’ actions. Plaintiffs have not shown that these causes of actions and/or a post-deprivation hearing will not address the injuries they suffered as a result of Defendants’ alleged conduct. Furthermore, Plaintiffs’ argument that Chief Payton should have held a pre-depri-vation hearing before deciding to leave the pond on September 3, 1996 is totally impractical, has no support in the law and the Constitution does not require such a radical result, even when Plaintiffs’ facts are viewed in its most favorable light. Having reviewed this matter, the Court finds that Plaintiffs’ substantive due process and/or state law claims asserted in their Complaint may provide an adequate remedy to Plaintiffs for the conduct that was allegedly engaged in by Chief Payton and the Village of Blanchester. Therefore, this Court finds that Plaintiffs’ procedural due process claim must fail as there exist adequate state law procedures, such as Plaintiffs’ state law claims for damages, in order to guarantee due process for any injury sustained as a result of Defendants’ alleged conduct in this matter. Accordingly, Defendants’ Motions for Summary Judgment are GRANTED (docs. 128 & 131) in regards to Plaintiffs’ procedural due process claim as alleged in COUNT II of the Complaint (see doc. 1). 3. Substantive Due Process The claimed constitutional basis for liability in this case is the Due Process Clause of the Fourteenth Amendment, which provides that, “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” In general, state officials are not constitutionally obligated to protect members of the public at large from crime. See DeShaney v. Winnebago County of Dep’t of Soc. Servs., 489 U.S. 189, 195-97, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Martinez v. California, 444 U.S. 277, 284-85, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980); Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 700 (9th Cir.1988); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982); Was v. Young, 796 F.Supp. 1041, 1045 (E.D.Mich.1992). This is because “the Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services; even so elementary as maintaining law and order.” Bowers, 686 F.2d at 618. The Supreme Court has observed: [N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.... As a general matter, then, we conclude that a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause. DeShaney, 489 U.S. at 195-197, 109 S.Ct. 998 (internal citations omitted). In other words, “the due process clause is not usually implicated by government inaction, but rather by government action.” Was, 796 F.Supp. at 1045. Thus, the most frequent situation in which a constitutional deprivation occurs is when a state official himself takes an affirmative action to violate the protected right. See, e.g., Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (finding, for example, when local law enforcement officials themselves beat a citizen to death, those officials took an affirmative action to violate that citizen’s constitutional rights). Other cases, both pre- and post -DeSha-ney, have focused on the concept of “state custody” for purposes of § 1983 liability. “The courts have considered the parameters of the state’s responsibility for persons in actual custody, i.e., prisons, and have also attempted to define the limits of ‘functional custody,’ where the State has exercised some degree of control or restriction, which is less complete than that in a police station or prison.” Was, 796 F.Supp. at 1046. “One primary situation where courts have found ‘functional custody’ is where a child who has been placed in a foster home by the state is mistreated by his or her foster parents.” Id. at 1046; see also Meador v. Cabinet for Human Resources, 902 F.2d 474, 476 (6th Cir.1990) (holding that “due process extends the right to be free from the infliction of unnecessary harm to children in state-regulated foster homes.”). In finding a constitutional duty to protect for purposes of § 1983 liability, these courts analogize to the Supreme Court case of Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (finding that the Eighth Amendment requires States to attend to prisoner’s serious medical needs). See, e.g., Youngberg v. Romeo, 457 U.S. 307, 314, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (finding that involuntarily committed mental patients have substantive rights to personal security under the Due Process Clause); City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244-45, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983) (finding that the Due Process Clause requires States to provide medical care to suspects in police custody). The rationale behind this principle is basically that: when the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to provide for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his behalf. DeShaney, 489 U.S. at 200, 109 S.Ct. 998 (citing Estelle, 429 U.S. at 103, 97 S.Ct. 285). Violations of substantive due process can be one of two kinds: “(1) deprivation of a particular constitutional guarantee ... or (2) actions that ‘shock the conscience.’ ” Braley, 906 F.2d at 224-25 (citing Wilson v. Beebe, 770 F.2d 578, 585-86 (6th Cir.1985)); Fluellen v. United States, 816 F.Supp. 1206, 1213 (E.D.Mich.1993) (“A substantive due process claim must be based either upon a violation of an explicit constitutional guarantee, such as a Fourth Amendment violation, or behavior that shocks the conscience.”) (citing Braley, 906 F.2d at 224-25). a. DeShaney and Constitutional Guarantees In DeShaney v. Winnebago County, the United States Supreme Court addressed the claims of a child who sustained injuries inflicted by his natural father after the defendant state agency returned him to the father’s custody. Id., 489 U.S. at 191, 109 S.Ct. 998. The Supreme Court held that a governmental entity has no obligation under the Due Process Clause of the Fourteenth Amendment to protect citizens from the violent acts of private persons such as the child’s father. Id. at 200-201, 109 S.Ct. 998; see also Reed v. Knox County Dep’t of Human Servs., 968 F.Supp. 1212, 1216 (S.D.Ohio 1997). The Supreme Court went on to note that a duty to protect on the part of the State may arise where a “special relationship” exists between the individual and the State, such as in the case of prison inmates and persons confined to mental institutions. Id. at 198-200, 109 S.Ct. 998. However, such a relationship arises only where “the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs.” Id. at 200, 109 S.Ct. 998. “The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitations which it imposed on his freedom to act on his own behalf.” Id.; see also Foy v. City of Berea, 58 F.3d 227, 231 (6th Cir.1995) (finding that the mere knowledge of danger to plaintiff does not create an affirmative duty to protect). “In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraints of personal liberty — which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, [and] not its failure to act to protect his liberty interests against harms inflicted by other means.” DeShaney, 489 U.S. at 200, 109 S.Ct. 998. The Supreme Court concluded that the harm suffered by the child occurred while he was in the custody of his father, not in the custody of the State, and that the State agency had no constitutional duty to protect the child even though it may have been aware of the dangers he faced. DeShaney, 489 U.S. at 201, 109 S.Ct. 998; see also Reed, 968 F.Supp. at 1217. The Supreme Court in DeShaney further observed that the conduct of the agency may have lead to the creation of a duty on its part to protect the child against danger under state tort law. DeShaney, 489 U.S. at 201-202, 109 S.Ct. 998. However, the Court went on to note that the Due Process Clause of the Fourteenth Amendment “does not transform every tort committed by a state actor into a constitutional violation.” Id. at 202, 109 S.Ct. 998. The Court found that, because the state agency had no constitutional duty to protect the child against his father’s violence, the agency’s failure to do so did not constitute a violation of the Due Process Clause. Id.; see also Reed, 968 F.Supp. at 1217. This Court believes that the proper result in this case in regards to Plaintiffs’ substantive due process claims is, therefore, governed by the general rule of DeShaney in that, absent some special relationship between the State and the victim, such as when the State restrains the victim’s freedom (i.e., prison, mental institution, etc.), the Due Process Clause does not impose liability for private acts of violence. Id, 489 U.S. at 197, 109 S.Ct. 998; Foy, 58 F.3d at 230-31. Rather, “[t]he State must take some action which places the victim in a dangerous position, or increases the potential danger, or deprives the victim of his or her ability to use self-help.” Smith v. City of Elyria, 857 F.Supp. 1203, 1210 (N.D.Ohio 1994). We find the following version of the facts as alleged by Plaintiffs in their Response does present a genuine issue of material fact which precludes judgment as a matter of law for Defendants on this issue: [Chief] Payton made a deliberate choice not to secure Carrie Culberson’s body when he learned her body was in the Baker pond. He made this choice knowing the risk of not securing her body was obvious — the evidence would be tampered with and her body would be removed. He further made the decision not to secure Carrie’s body knowing that he was depriving her family of its right to her body. Furthermore, the Culber-son family was dependent on the [V]il-lage of Blanchester. They had no access to the body while it was in the pond. Carrie’s body was on private property. In fact, the Culberson family, afraid Carrie was being held at gun point in a barn or tied up and left to die in a barn, as Doan had threatened to do to her days earlier, went searching in every barn they could find, including the one at the Baker Hunt Road junkyard. However, [t]he Culberson’s were warned not to trespass on the Baker junkyard. The Culberson’s were therefore totally dependent on the Blanchester Police to recover Carrie’s body from the junkyard. The Blanchester [Pjolice, headed by [Chief] Payton, did search at the junkyard on September 3, 1996, [and] the Blanchester police had control of Carrie’s body because they had control of the junkyard pond and immediate area. (doe. 139) (citing Michigan v. Summers, 452 U.S. 692, 702-703, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (suggesting that police in conducting proper searches exercise “unquestioned command” of the situation, including the ability to detain persons from leaving the premises during the search)). Defendants seek to defend against Plaintiffs’ substantive due process claims by invoking the rule of DeShaney. We disagree. Plaintiffs have alleged sufficient facts in order to present a genuine issue of material fact as to whether Chief Payton deprived Plaintiffs of their ability to use self-help, made Plaintiffs more vulnerable to the danger that Carrie’s body would be removed from the pond, or took on an affirmative duty to prevent harm to Carrie and Plaintiffs by taking actual control of the crime scene at the Baker Family junkyard and pond. Therefore, the Court concludes that, Chief Payton was in “constructive control” of, or, in the alternative, had “functional custody” of Carrie’s body. Moreover, in light of Plaintiffs’ facts, we also conclude that Plaintiffs have put forth sufficient facts for a reasonable trier of facts to conclude that Chief Payton abandoned his duty as one of the lead law enforcement officer on the scene in order for her body to be removed from the pond and be secreted away from her family by either Doan alone, or with the help of others. The Third Circuit used the concept of “functional custody” to uphold a § 1983 claim where a police officer, in accordance with a municipal policy of deferring to private clubs to investigate internal thefts, left an employee who was suspected of a theft in the owner’s custody pending investigation of the crime. Horton v. Flenory, 889 F.2d 454 (3rd Cir.1989). The owner of the club was an ex-police officer well-known to the defendants. Horton, 889 F.2d at 454. The investigating officer did not take the victim out of the club, despite the victim’s request for protection, stating that he felt that the victim “was in good hands.” Id. at 457. The Third Circuit rejected the defendants’ arguments that, under DeShaney, there are no circumstances in which a municipality or a police officer has an obligation to protect persons from private violence. Id. Rather, the Horton court stated that the holding in DeShaney “is limited to situations in which the state is not involved in the harm, either as a custodian or as an actor.” Id. The court found sufficient evidence in order to permit a finding that the plaintiff was in state custody at the time of his fatal beating. Id. at 458. The Third Circuit then distinguished De-Shaney stating, “[ujnlike the passive role of the neglectful social workers in DeSha- ney, the role of the state actor here, [the investigating officer] could be found from the evidence to be anything but passive”. Horton, 889 F.2d at 458. We find the holding of Horton to be applicable to the case at bar in several respects that we will address in a moment. But, as a starting point, we thought it was important to note, that this Court finds the following arguments by Defendant Payton to be somewhat disingenuous, contradictory, and unrealistic: In addition, to the fact that defendants owed no duty, defendants did not prevent plaintiffs from recovering the body. First and foremost, it was Vincent Doan who murdered and concealed the body from plaintiffs. Second, it was Lawrence Baker, the owner of the junk yard property situated in Clermont County, who prohibited plaintiffs from entering upon his private property to search for the body, and not any action by defendants. (doc. 141 at 14 n. 14). The record before us clearly disputes Chief Payton’s assertions. Specifically, Plaintiffs counter in their Response that the Culberson Family was warned not to trespass on the Baker Family junkyard property, and, therefore, Plaintiffs were totally dependent on the Village of Blanchester Police Department to recover Carrie’s body from that property. Second, on September 3, 1996, Chief Payton had law enforcement officers deployed at the scene with the consent of the property owner and had established a law enforcement perimeter around the pond. Third, according to Plaintiffs, Chief Pay-ton was indirectly warned by Doan and Lawrence Baker that evidence linking Doan to Carrie might be found at the pond or that something incriminating might already be “planted” there. In addition, it is also alleged by Plaintiffs that, Chief Pay-ton made a policy decision to discharge the officers and return possession, control, and custody of the pond and the body within the pond to Doan and the Baker Family. It is precisely because of the fact that we found law enforcement officers in general, and Chief Payton in particular, were in complete control of the potential crime scene during the search of Lawrence Baker’s property on September 3, 1996, that Chief Payton’s assertions to the contrary are disingenuous. Therefore, we find that it was Chief Payton, not the Culbersons themselves or the Baker Family, who denied Plaintiffs access to the possible crime scene, as well as the possible remains of Carrie on Lawrence Baker’s property. If Plaintiffs’ facts are viewed in a favorable light, it is also reasonable to conclude that, because Chief Payton had “complete control” of the potential crime scene, he also had “constructive and functional” possession, control or custody of Carrie’s body. By potentially abandoning that control, custody or possession to her murderer and the Baker Family, we conclude that Chief Payton’s actions may have violated Plaintiffs’ substantive due process. Having reviewed this matter, we find that there exist genuine issues of material facts which prevent this Court from finding in favor of Defendants on the issue of the possible constitutional violations of Plaintiffs’ substantive due process. Accordingly, Defendants’ Motions for Summary Judgment are DENIED (docs. 128 & 131) in regards to Plaintiffs’ constitutional guarantee and the substantive due process claims as alleged in COUNT II of the Complaint (see doc. 1). b. The Supreme Court’s “Shock the Conscience Test” The Supreme Court has held that, “[t]he protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.” Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). The Sixth Circuit has described substantive due process as “the right to be free from state intrusions into realms of personal privacy and bodily security through means so brutal, demeaning, and harmful as literally to shock the conscience” of a court or a trier of fact. Lillard v. Shelby County. Bd. of Educ., 76 F.3d 716, 725 (6th Cir.1996). For almost 50 years now the Supreme Court has spoken of the cognizable level of executive abuse of power as that which “shocks the conscience.” The Court first put this to the test in the case of Rochin v. People of California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 96 L.Ed. 183 (1952), where they found that the forced pumping