Holson, et al v. Good, et al

Filing 74

Opinion and Order signed by Judge James S. Gwin on 6/25/13. The Court lifts the stay earlier imposed in this case and grants in part and denies in part defendants' motions to dismiss, for judgment on the pleadings and for summary judgment as set forth in this entry. (Related Docs. 13 , 16 , 17 , 35 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
JOSEPH F. HOLSON, et al.
:
:
Plaintiffs,
:
:
vs.
:
:
JOHN GOOD, et al.
:
:
Defendants.
:
:
-------------------------------------------------------

CASE NO. 1:12-CV-2395

OPINION & ORDER
[Resolving Docs. No. 13, 16, 17, 35]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
In August 2009, Plaintiffs Joseph Holson and Colleen Pepper pleaded guilty in state court
to possession of drugs and complicity in the use of a minor in nudity-oriented material.1/ In this
§ 1983 action, Holson and Pepper allege that Defendants worked to violate their constitutional rights
in connection with the investigation, prosecution, and sentencing in their state court convictions.
This Court stayed the federal proceedings while Plaintiffs sought collateral review of their state
convictions in the state court. For the reasons that follow, this Court lifts the stay and GRANTS IN
PART Defendants’ motions to dismiss, for judgment on the pleadings, and for summary judgment.
I. Background
Plaintiffs each pleaded guilty in August 2009 to one count of complicity in the illegal use of
a minor in nudity-oriented material or performance, in violation of Ohio Revised Code

1/

Doc. 1, at 13.

-1-

Case No. 1:12-CV-2395
Gwin, J.
§§ 2923.03(A)(2) and 2907.323(A)(3), and one count of possession of cocaine, in violation of Ohio
Revised Code § 2925.11(A).2/ Both violations are felonies of the fifth degree under Ohio law.
Plaintiffs were each sentenced to six months of incarceration, and thereafter assigned to the
supervision of the Ohio Adult Parole Authority (OAPA).3/
While under the authority of the OAPA, Plaintiffs are unable to have contact with one
another, have restrictions on their travel, are unable to live with one another, are prohibited from
viewing sexually explicit materials, are unable to have surveillance cameras on their property, in
addition to other restrictions.4/ Plaintiffs did not appeal their convictions.
Plaintiffs’ instant lawsuit raises claims against a number of persons and entities involved with
Plaintiffs’ arrest, conviction, and punishment. These parties include the City of Ashland, Ashland
County, the OAPA, as well as Plaintiffs’ attorneys in state court, Defendants Andrew Hyde and John
Good. Plaintiffs raise seventeen claims, though it is difficult for this Court to parse out exactly what
Plaintiffs’ claims are. The complaint is repetitive, long on legal conclusions but short on facts, and
generally fails to explain what cause of action is being raised against which party. As far as the
Court can tell, Plaintiffs raise the following causes of action:
•

Claim 1: An omnibus claim complaining of the way in which Plaintiffs’ attorneys, the state
judges, and the OAPA denied Plaintiffs their constitutional rights through their course of
conduct. No specific act, nor any specific constitutional right, is set forth.

•

Claim 2: A claim against the City of Ashland and its chief of police, David Marcelli, for
adopting policies allowing for improper searches and seizures, as well as other violations of
law.

•

Claim 3: The same as Claim 2, but against Ashland County.

2/

See generally doc. 17.
Doc. 1, at 14.

3/
4/

Id.

-2-

Case No. 1:12-CV-2395
Gwin, J.
•

Claim 4: The same as Claim 2, but against the OAPA. Plaintiffs here say that the OAPA
failed to monitor its parole offices and to investigate Plaintiffs’ complaints.

•

Claim 5: A conspiracy claim against all Defendants.

•

Claim 6: A claim against Plaintiffs’ parole officer, the City of Ashland chief of police, and
Ashland County, for engaging in actions that constitute ex post facto punishment of
Plaintiffs.

•

Claim 7: A claim against Plaintiffs’ parole officer, the OAPA, and unnamed Defendants for
engaging in banishment by not allowing Plaintiff Pepper to return to her home.

•

Claim 8: A claim against Plaintiffs’ parole officer, the City of Ashland chief of police, and
Ashland County, for engaging in actions that constitute cruel and unusual punishment in
violation of the Eighth Amendment.

•

Claim 9: A claim against all Defendants for violations of Plaintiffs’ Fourth Amendment
rights.

•

Claim 10: A claim against all Defendants for violations of Plaintiffs’ Fifth Amendment due
process rights.

•

Claim 11: A claim against all Defendants, but “particularly of Defendants Good and Hyde,”
who were Plaintiffs’ former attorneys, for ineffective assistance of counsel in violation of
Plaintiffs’ Sixth Amendment rights.

•

Claim 12: A state law claim against Defendant Good for writing a letter defaming Plaintiff
Holson. Plaintiff Holson says that the letter constituted “slander, libel, and defamation of
[his] character.”

•

Claim 13: A state law claim of invasion of privacy against Defendants Good, Hyde, and
Plaintiffs’ parole officer for watching Plaintiffs’ sexually-themed videos.

•

Claim 14: A state law claim of malpractice against Defendant Good, Plaintiff Holson’s
former attorney.

•

Claim 15: A state law claim of interference with Plaintiffs’ contractual relations against all
Defendants.

•

Claim 16: A state law claim of abuse of process against all Defendants.

•

Claim 17: A state law claim of intentional infliction of emotional distress against all
Defendants.5/
Defendants thereafter filed motions seeking to dismiss Plaintiffs’ case.6/ Defendants argued,
5/

See generally id.

6/

See doc. 13 (Defendant Hyde’s motion to dismiss); doc. 16 (Defendant City of Ashland’s motion for judgment
on the pleadings); doc. 17 (Defendant Ashland County’s motion for summary judgment); and doc. 35 (Defendant Good’s
motion for partial summary judgment).

-3-

Case No. 1:12-CV-2395
Gwin, J.
among other things, that Plaintiffs’ claims were barred by the doctrine announced in Heck v.
Humphrey, 512 U.S. 477 (1994), which requires a cessation of criminal proceedings in the Plaintiff’s
favor for most § 1983 suits to proceed. Plaintiffs contest that Heck serves as a bar to their claims,
but moved to stay the proceedings while their motions to withdraw their guilty pleas was pending
in state court.7/ On February 15, 2013, this Court granted that motion and stayed the proceedings.8/
On June 10, 2013, the Ashland County, Ohio, Court of Common Pleas denied Plaintiffs’
motions to “withdraw guilty plea and vacate conviction and sentence.”9/ That court also considered
Plaintiffs’ ineffective assistance of counsel claim, and found that Plaintiffs “fail[ed] to provide any
evidentiary documentation supporting [the] remaining claims.”10/ The court found that there was
“nothing in the record to support Defendant[s’] claim[s] that [the] prior plea[s] in this matter [were]
not knowingly and voluntarily made.”11/
II. Analysis
Defendants raise a number of arguments in support of their dispositive motions seeking to
dismiss Plaintiffs’ claims. This Court addresses the issues raised in those motions in turn.
A. The Heck Bar
Defendant Ashland County moves for summary judgment, saying that the Supreme Court’s
pronouncement in Heck bars Plaintiffs’ 1983 claims.12/ Plaintiffs’ oppose the motion, saying that
their claims would not necessarily imply the invalidity of their state convictions.

7/

Doc. 57

8/

Doc. 66.

9/

See docs. 72-1 & 73-1.

10/

Id.

11/

Id.
Doc. 17.

12/

-4-

Case No. 1:12-CV-2395
Gwin, J.
In Heck, the Supreme Court charged district courts with considering “whether a judgment
in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence . . . if it
would, the complaint must be dismissed unless the plaintiff can demonstrate that the
conviction . . . has already been invalidated.”13/ To demonstrate that the conviction has been
invalidated, the plaintiff must show that it “has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of habeas corpus.”14/
Plaintiffs’ state convictions stand. And, as far as the Court can tell, much of their argument
attacks the way in which Defendants effected their search. The Sixth Circuit counsels that some
Fourth Amendment claims brought under § 1983 can survive Heck’s bar if the evidence would have
been available through other, legal, avenues.15/ For example, in Harper, the plaintiff pleaded guilty
to possession of marijuana after the police searched his residence and discovered the marijuana. 16/
Harper’s Fourth Amendment challenge to the search in his § 1983 suit survived summary judgment
because the marijuana could have been admitted against him under the doctrines of inevitable
discovery or good-faith reliance on the issued warrant.17/
Here, Plaintiffs do not say, either in their complaint or in their response to the motion for
summary judgment, that the seized evidence would have been admitted against them in other ways.
In fact, the response does not speak to the Fourth Amendment issue whatsoever.18/ As a finding that

13/

Heck, 512 U.S. at 485-87.

14/

Id.

15/

See Harper v. Jackson, 293 F. App’x 389 (6th Cir. 2008).

16/

Id. at 390.

17/

Id. at 392.
Doc. 37.

18/

-5-

Case No. 1:12-CV-2395
Gwin, J.
the search lacked probable cause would necessarily impugn the validity of their state court
convictions, those claims are barred by Heck. Therefore, the Court grants Defendant Ashland
County’s motion for summary judgment as to claims 1,19/ 2, 3, and 9.
Heck, however, might not serve to bar Plaintiffs’ parole-related claims, which seek to attack
the decisions of the OAPA and its agents. In Wilkinson v. Dotson, 544 U.S. 74 (2005), the Supreme
Court permitted plaintiffs to attack the conditions of their parole, but only if a victory in the
plaintiff’s favor would not necessarily result in “immediate release from confinement or a shorter
stay in prison.”20/ If it did necessarily result, then the claim would lie more appropriately in a petition
for a writ of habeas corpus.21/ But in claim 4, as far as the Court can tell, Plaintiffs contest the parole
process, as opposed to the individual conditions of parole. Therefore, Heck does not serve as a bar
to claim 4, which seeks to attack the process by which Plaintiffs’ parole is administered. It does,
however, bar claims 6 and 7, which seek to attack the substance of the parole requirements.
Therefore the Court grants Defendant Ashland County’s motion for summary judgment as to claims
6 and 7.
Similarly, actions raising claims under the Eighth Amendment, as Plaintiffs’ claim 8 does,
may be barred by Heck if they seek to do nothing more than shorten the length of the imposed
sentence. But, the Sixth Circuit has allowed § 1983 claims for Eighth Amendment violations when
a favorable finding would not imply the invalidity of the underlying conviction.22/ Here, it is unclear

19/

The Court notes that it is not at all clear exactly what Claim 1claims. Plaintiffs say that Defendants denied
them “equal rights,” which would seem to be an equal protection argument. But, all of the subparagraphs supporting
this portion of the claim discuss Defendants’ search and seizure of Plaintiff’s residence and property. The Court
therefore construes this Claim as one alleging violations of Plaintiffs’ Fourth Amendment rights.
20/

Wilkinson, 544 U.S. at 82.

21/

Id.

22/

Jennings v. Mitchell, 93 F. App’x 723 (6th Cir. 2004).

-6-

Case No. 1:12-CV-2395
Gwin, J.
from the complaint which exact actions give rise to the Eighth Amendment claim. Rather than point
to specific facts, Plaintiffs merely state that they “incorporate by reference the facts and law as
alleged in paragraphs [1] through [59].”23/ Plaintiff also fails to directly address his Eighth
Amendment claim in his response to Ashland County’s motion for summary judgment. The Court
therefore exercises its discretion to dismiss claim 8 as well.
B. The Statute of Limitation
Actions brought under § 1983 apply the statute of limitation from a state’s general personal
injury statute.24/ “Thus, for 42 U.S.C. § 1983 actions brought in Ohio, a two year statute of
limitations applies.”25/ The limitations period accrues “when the plaintiff knows or has reason to
know of the injury which is the basis of his action.” In Rodriguez, a case challenging a property
seizure, the Sixth Circuit held that the “seizure of [the] property provides the basis for [the
plaintiff’s] Fourth Amendment seizure of property claim.”
Plaintiffs’ style their tenth claim as a Fifth Amendment claim, saying that Defendants’
actions “constitute[d] violations of plaintiffs’ Fifth Amendment rights not to be deprived of property
without due process of law.”26/ But, once again, Plaintiffs fail to indicate which acts they are
complaining of; rather, they point to the first sixty-six paragraphs of the complaint for this Court to
scour. The Court therefore construes this complaint as one alleging wrongful seizure of property in
connection with the search of Plaintiffs’ home. As the search occurred in February 2009, Plaintiffs
needed to file this claim by February 2011. They filed it in September 2012. It is therefore untimely.
The Court therefore grants in part the City of Ashland’s motion for judgment on the pleadings and
23/

Doc. 1.

24/

See Rodriguez v. City of Cleveland, 439 F. App’x 433, 458 (6th Cir. 2011).

25/

Id. (citing Ohio Rev. Code § 2305.10).
Doc. 1, at 29.

26/

-7-

Case No. 1:12-CV-2395
Gwin, J.
dismisses claim 10.
Further, the Court notes that all of the claims against Defendant Hyde, and all of the claims
against Defendant Good, except for claim 12, arise out of these Defendants’ legal representation of
Plaintiffs. Ohio courts are quite clear that if a claim arises out of the attorney-client relationship,
then the one-year statute of limitation applies, regardless of the styling of the complaint.27/ Those
claims are thus untimely. The Court therefore dismisses all claims against Defendant Hyde, and
dismisses claims 13 and 14 as against Defendant Good.
C. Color of Law
Plaintiffs’ last federal claim, claim 11, says that Plaintiffs’ counsel in the state proceedings,
Defendants Good and Hyde, provided ineffective assistance of counsel in violation of the Sixth
Amendment.
Because their attorneys were not acting under color of law when defending them, Plaintiffs
may not maintain a § 1983 action against counsel based on an ineffective assistance of counsel
claim.28/ Plaintiffs’ eleventh claim is also dismissed.
III. Conclusion
For the foregoing reasons, Defendant Hyde’s motion to dismiss, Defendant City of Ashland’s

27/

See Wilkerson v. O’Shea, 2009 WL 4810187 (Ohio Ct. App. 2009) (“However, as with Wilkerson’s unjust
enrichment and breach of contract claims, Wilkerson’s claims clearly sound in legal malpractice, and therefore the
one-year statute of limitations applies, and Wilkerson cannot be permitted to transform one cause of action into another
through clever pleading or an alternate theory of law in order to avail herself of a more satisfactory statute of
limitations.”) (quotations and alterations omitted). The Court notes that the causes of action raised in claims 13, 15, 16,
and 17 all enjoy a four-year statute of limitations. See Hidey v. Ohio State Highway Patrol, 689 N.E.2d 89 (Ohio Ct.
App. 1996) (invasion of privacy); Yaklevich v. Kemp, Schaeffer & Rowe Co., LPA, 626 N.E.2d 115 (Ohio 1994) (abuse
of process); Lasmer Indus. v. AM Gen. LLC, 741 F. Supp. 2d 829 (S.D. Ohio 2010) (contractual interference); Starr v.
Corley, 662 F. Supp. 219 (N.D. Ohio 1987) (intentional infliction of emotional distress). Therefore, even though the
City and County stopped being involved in this case upon Plaintiffs’ convictions, their continued inclusion in this case
is warranted because the limitations period has not yet run.
28/

Cudejko v. Goldstein, 22 F. App’x 484, 485 (6th Cir .2001) (state court criminal defendant’s private attorney
was not “state actor,” precluding defendant's § 1983 action against attorney alleging ineffective assistance of counsel).

-8-

Case No. 1:12-CV-2395
Gwin, J.
motion for judgment on the pleadings, Defendant Ashland County’s motion for summary judgment,
and Defendant Good’s motion for partial summary judgment are GRANTED IN PART and DENIED
IN PART. Claims 4, 5, and 13 survive as against the OAPA only; claim 12 survives as against
Defendant Good; and claims 15, 16, and 17 survive as against Defendants OAPA, City of Ashland,
Ashland County, and Defendant Good. All other claims, including all claims raised against the
Ashland Police Department 29/ and Defendant Hyde, are dismissed.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: June 25, 2013

29/

See Petty v. Cnty. of Franklin, 478 F.3d 341 (6th Cir. 2007) (“To the extent that Petty’s suit is against Karnes
in his official capacity, it is nothing more than a suit against Franklin County itself.”).

-9-