Jones v. Robinson et al

Filing 19

ORDER Adopting 17 Report and Recommendation and Granting 12 Motion for Summary Judgment filed by Detroit Police Department, Benito Mendoza Signed by District Judge Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TREMAIN VERNON JONES,
Case No. 12-cv-12541
Plaintiff,
HONORABLE STEPHEN J. MURPHY, III
v.
ALEJANDRO PARRA, et al.,
Defendants.
/

ORDER ADOPTING REPORT & RECOMMENDATION (docket no. 17)
AND GRANTING MOTION FOR SUMMARY JUDGMENT (docket no. 12)
In this matter, pro se plaintiff Tremain Vernon Jones brings claims under 42 U.S.C.
§ 1983, state tort law, and a civil RICO claim, 18 U.S.C. § 1861. Jones named thirty-five
defendants in his Complaint. See Compl., ECF No. 1. In an order dated August 13, 2012,
this Court dismissed all defendants except for the Detroit Police Department, and police
officers Alejandro Parra, Gregory Stopzynsky, Eric Decker, Owen McGowan, and Benito
Mendoza. Order of Partial Dismissal, ECF No. 6. The Detroit Police Department and
Mendoza filed a motion for summary judgment, arguing that Jones's claims must be
dismissed as time-barred. See ECF No. 12. This Court referred the motion, and all pretrial
matters, to a magistrate judge for resolution. Order Referring Pretrial Matters, ECF No. 13.
On April 4, 2013, the magistrate judge issued a Report & Recommendation ("Report"), in
which he recommends the Court construe the motion for summary judgment as a motion
to dismiss and grant it.
Civil Rule 72 provides that a party's specific written objections to a magistrate judge's
Report, filed within fourteen days of service, are entitled to de novo review. See Fed. R.
Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo

determination of those portions of the report or specified proposed findings or
recommendations to which objection is made."). Jones timely filed three objections which
are before the Court for review.
DISCUSSION
I.

The Report
Mendoza and the DPD filed the instant motion as a motion for summary judgment.

Because the only argument raised was a statute-of-limitations defense that may properly
be raised in a Civil Rule 12(b)(6) motion to dismiss, the magistrate judge construed the
motion for summary judgment as a motion to dismiss and found it timely filed. See Report
15-16.
In a careful review of Jones's complaint, the magistrate judge found that Jones
brought claims against the defendant officers and the DPD for (1) state-law torts arising out
of his August 23, 2005 arrest and detention; (2) § 1983 claims for the use of excessive
force and denial of medical care based on his treatment in the days following that arrest;
(3) a First Amendment retaliation claim; and (4) a RICO claim. See Report 8-11. The
statute of limitations for the state-law torts and § 1983 claims is three years from the date
the plaintiff knows or has reason to know that the act providing the basis of his injury
occurred. See Drake v. City of Detroit, Michigan, 266 F. App'x 444, 448 (6th Cir. 2008)
(“[T]he appropriate statute of limitations to be borrowed for § 1983 actions arising in
Michigan is the state's three-year limitations period for personal injury claims.”); Cooey v.
Strickland, 479 F.3d 412, 416 (6th Cir. 2007) ("In determining when the cause of action
accrues in § 1983 cases, we look to the event that should have alerted the typical lay
person to protect his or her rights”) (citation omitted). The statute of limitations for Jones's
RICO claim is four years. Sims v. Ohio Cas. Ins. Co., 151 F. App'x 433, 435 (6th Cir. 2005)

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(“The Supreme Court has imposed a four-year statute of limitations on RICO claims.”). The
most recent action forming a basis of Jones's complaint took place on January 24, 2007,
but Jones did not file his complaint until June 12, 2012. See Compl. The magistrate judge
found that Jones knew or had reason to know of the actions underlying his causes of action
since January 24, 2007 at the latest, and therefore, every cause of action brought is time
barred.
II.

Jones's Objections
Jones raises three objections. In his first and second objections, Jones contends that

the magistrate judge should not have construed the motion for summary judgment as a
motion to dismiss and found it timely.
Jones first objects that the defendants were required to file an answer either admitting
or denying the allegations in the complaint, and could not respond solely with a motion
asserting a statute of limitations defense. See Objections 2 ("The magistrate judge failed
to point out that Mendoza and DPD neither admitted or denied the claims asserted in
Plaintiff's Complaint, and only went to their defense as a ruse to cover up the wayward
conduct described by the Plaintiff in his Complaint."). But, as the magistrate judge noted,
a motion to dismiss may be filed in lieu of an answer, and a statute-of-limitations defense
may be raised in a motion to dismiss. See Reid v. Baker, No. 11-5473, 2012 WL 3893122,
4 (6th Cir. Sept. 7, 2012) (“A defendant may raise a statute of limitations defense in the
context of a Rule 12(b)(6) motion to dismiss.”)); see also Fed. R. Civ. P. 12(b)(6) ("A motion
asserting [a Civil Rule 12(b)(6) defense] must be made before pleading if a responsive
pleading is allowed."). The Court will overrule this objection.
Jones next objects that the magistrate judge's conclusion that the motion was timely
violated his constitutional rights. Jones appears to contend that because the motion did not

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respond directly to the allegations in the complaint, it was untimely. See Report 3 ("[N]either
of the defendants have defended against or otherwise answered to the claims asserted in
Plaintiff's complaint. Accordingly [the] motion for summary judgment remains untimely . .
. ."). As set forth above, the defendants' motion was an appropriate response to the
complaint. And, the magistrate judge properly determined that the motion was timely. See
Fed. R. Civ. P. 12(a)(1)(ii) (a responsive pleading is due within 60 days after a request for
waiver is sent). The request for waiver in this case issued on November 21, 2012; the
defendants filed their motion on January 14, 2013, fewer than 60 days later. The Court will
overrule this objection.
Finally Jones objects that his state-law and constitutional claims are not time-barred
because he lacked the legal training to know that defendants' actions violated his rights.
See Objections 4 ("[B]ecause Plaintiff is not an attorney, nor has he been trained or
schooled in the law, how could he have known what his rights were and what injuries he
suffered . . . ."). Here too the legal standard applied by the magistrate judge was correct.
To the extent Jones's claims arise from the use of force or denial of medication, he was
aware of the actions at the time the events took place. Cooey, 479 F.3d at 416 ("[T]he
statute of limitations period begins to run when the plaintiff knows or has reason to know
that the act providing the basis of his or her injury has occurred.”). To the extent Jones's
claims arise from actions that occurred at any court hearings up to and including his
January 24, 2007 motion to remove appellate counsel, Jones was also present for and
aware of those events at the time they occurred, and the nature of the events alleged was
sufficient to "alert[] the typical lay person to protect his or her rights." Id. For example,
Jones would not need legal training to recognize, as he contends occurred at his March 20,
2006 preliminary examination, that an officer falsely testified that he confessed. The Court

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is satisfied that the magistrate judge properly determined that the statute of limitations for
Jones's causes of action has expired.
Because the reasons for finding Jones's claims time-barred apply equally to Jones's
causes of action against all of the remaining defendants, the Court will dismiss the
complaint in its entirety.
ORDER
WHEREFORE it is hereby ORDERED that the Report & Recommendation (docket no.
17) is ADOPTED.
IT IS FURTHER ORDERED that the motion for summary judgment (docket no. 12)
is GRANTED.
IT IS FURTHER ORDERED that the Complaint is DISMISSED WITH PREJUDICE.
SO ORDERED.

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: April 29, 2013
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on April 29, 2013, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager

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