Spehar v. City of Mentor Ohio et al

Filing 27

Opinion and Order signed by Judge James S. Gwin on 6/21/13 granting defendants' motion to dismiss and certifying that an appeal cannot be taken in good faith. (Related Docs. 3 , 7 , 16 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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MARTIN E. SPEHAR,
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Plaintiff,
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vs.
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THE CITY OF MENTOR, OHIO, et al.,
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Defendants.
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CASE NO. 1:12-CV-2855

OPINION & ORDER
[Resolving Doc. Nos. 3, 7, 16]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Pro se plaintiff Martin E. Spehar filed the above-captioned action in the Lake County Court
of Common Pleas on October 12, 2012 against the City of Mentor, Mentor Law Director Richard
Hennig, Mentor City Council President Robert M. Shiner, and unidentified Mentor City Council
Members from August 2009 to the present. (Doc. No. 1-2). Plaintiff thereafter filed an Amended
Complaint on November 8, 2012. (Doc. No. 1-3). In the Amended Complaint, plaintiff challenges
a City of Mentor ordinance that limits the circumstances under which residents may raise chickens
on their residential property. The defendants removed this action to federal court on November 16,
2012, arguing the Amended Complaint alleges due process violations under the United States
Constitution. (Doc. No. 1).

I. Background
Plaintiff is the owner of an approximately ½ acre parcel of property located at 7495
Hopkins Road in Mentor, Ohio.1 He indicates that he wants to raise chickens on his property;
however, Mentor has a codified ordinance, MCO 505.13(b), that prohibits anyone within the city
limits from keeping horses, goats, cows, chickens, sheep, mules, ducks, geese, turkeys or similar
farm animals on less than two acres of land. The ordinance also requires that where a two-acre
parcel is available the animals must be kept more than 75 feet away from any dwelling, including
those located on adjacent parcels of property.
Under the terms of this ordinance, Plaintiff would be unable to raise chickens on his
property. He attended a City of Mentor Council Meeting in May 2009 and asked them to consider
amending the ordinance to permit him to raise chickens. Plaintiff asserts City Council members
went into “executive session” to consider his request. (Doc. No. 1-3 at 1). He claims that when the
public meeting was adjourned, one of the council members began to sing “Goodnight Irene” which
plaintiff interpreted as a sign that “only in my dreams will I raise chickens in Mentor.” (Doc. 1-3
at 1). The ordinance was not amended as plaintiff requested.
Nevertheless, plaintiff decided to defy the ordinance and raise five chickens on his property.
On July 7, 2009 and August 4, 2009, plaintiff was cited for violating Mentor Codified Ordinance
(“MCO”) 505.13. (Doc. No. 1-3 at 11). In both instances, plaintiff pled not guilty and the matters
were set for bench trial before the Mentor Municipal Court. See Mentor Municipal Court Case Nos.

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Neither the Amended Complaint nor any of the parties’ motions or responsive briefs provide
a coherent statement of the facts underlying plaintiff’s action. The facts as set forth above are
gleaned from various statements scattered throughout the pleadings filed in the instant case, as well
as publicly available information on the Mentor Municipal Court’s website.
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CRB 0900869 and CRB 0901019. The City ultimately filed nolle prosequi entries in both actions,
which the Mentor Municipal Court accepted. Id.
On August 12, 2009, defendant Hennig sent a letter to plaintiff indicating that its regular
meeting on August 18, 2009, the City Council would consider a proposed amendment to MCO
505.13 to enhance the penalty for repeat violators from a minor misdemeanor offense to a
misdemeanor offense, which would permit the Judge to sentence a defendant to jail time in addition
to imposing a larger monetary penalty. At the meeting, City Council “unanimously waived the
second and third readings” of MCO 505.13 and approved it. (Doc. No. 1-3 at 5, Doc. No. 11 at 3).2
Plaintiff claims existing violators were not “grandfathered” after the ordinance was amended. (Doc.
No. 11 at 3). Plaintiff further asserts that, between the City Council meeting in May 2009 and the
approval of MCO 505.13 in August 2009, defendants failed to conduct any public meetings,
hearings, or discussions regarding the keeping of farm animals within City limits.
In June 2011, plaintiff was cited once again for violating MCO 505.13. He pled not guilty
and the matter was set for bench trial in the Mentor Municipal Court. See Mentor Municipal Court
Case No. CRB 110071. Plaintiff filed a Motion to Dismiss the charges, which the municipal court
set for a hearing on July 13, 2011. Id. At that hearing, Spehar was found guilty, fined $150.00, and
assessed costs in the amount of $140.00. Id. At a payment hearing held several days later, plaintiff
elected to perform community service work in lieu of paying the fine. Plaintiff states he did not
appeal his conviction or sentence.
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As amended in August 2009, MCO 505.13 provides in relevant part as follows: “(d)
Whoever violates this section shall be guilty of a minor misdemeanor upon a first offense; shall be
guilty of a fourth degree misdemeanor upon a second offense within twelve months of the first
offense; and shall be guilty of a third degree misdemeanor upon three or more offenses within
twelve months of the first offense.”
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In September 2012, plaintiff was again cited for violating MCO 505.13. He pled not guilty
and the matter was set for bench trial. See Mentor Municipal Court Case No. CRB 1201413. On
October 17, 2012, he was found guilty, fined $100, and assessed $370 in costs. Id. He thereafter
filed a post-conviction petition, motion to vacate judgment, and motion for summary judgment, all
of which were denied. Id. Plaintiff states he did not appeal this conviction and sentence. (Doc. No.
11 at 6).
Plaintiff claims that, after his October 2012 conviction, he gave his five chickens to the first
person able and willing to take all of them. He contends he did so under duress, because he
believed the city prosecutor would pursue a 30 day jail sentence, if he still had the chickens on the
day of the sentencing hearing.
Plaintiff’s Amended Complaint contains three causes of action. First, plaintiff asserts a
state law personal injury claim based on physical and financial hardships he claims he endured as
a result of his prosecutions for violating the ordinance. He indicates he was forced to build a
chicken coop out of plywood and fencing because “only a fool or a criminal would spend money
to commit a crime... .” (ECF No. 1-3 at 3). He sues the defendants for damages because he bumped
his head on his inferior chicken coop. He further claims he endured financial hardship and
experienced emotional distress and anxiety by defending himself against his four citations. In his
second cause of action, plaintiff asserts defendants conspired to deprive him of his right to farm his
property. He also claims MCO 505.13 was amended in a capricious manner in violation of state
law and the United States Constitution. Finally, in this third cause of action plaintiff asserts that the
defendants committed theft of his chickens because he felt compelled to give them away to avoid
jail time following his 2012 conviction.

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Defendants removed plaintiff’s action to this Court on November 16, 2012, arguing the
Amended Complaint alleges due process violations under the United States Constitution. (Doc. No.
1). Several days later, defendants filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
(Doc. No. 3) asserting that the claims against them should be dismissed because they are immune
from damages under state law, the claims impermissibly attack plaintiff’s convictions and are barred
by the Rooker Feldman doctrine and Heck v. Humphrey, and the statute of limitations period has
expired with regard to some of plaintiff’s claims.
After reviewing the various filings in this matter, the Court ordered the parties to file briefs
by March 22, 2013 discussing whether res judicata acts to stop plaintiff’s claims. Plaintiff
submitted his brief on March 21, 2013. He asserts six arguments in opposition to res judicata.
First, he claims this civil action was filed before his final criminal conviction, so res judicata cannot
apply. Second, he indicates the Mentor Municipal Court’s rulings on the constitutional claims were
rulings on motions and not final judgments. Third, he claims Shiner and Hennig were not parties
to the criminal case. Fourth, he contends res judicata does not apply because this case is a civil case
and the other case was a criminal action. They apply different rules of procedure. Fifth, he argues
that this civil action is really a counterclaim to the criminal action and res judicata does not apply
to counterclaims. Finally, he asserts his theft claim did not arise until after his last conviction
because he did not feel compelled to give his chickens away until he faced jail time.
Defendants filed their brief on March 22, 2013. They assert the Mentor Municipal Court
already determined plaintiff violated MCO 505.13(b). The City of Mentor was a party to the
criminal action, and Mentor Law Director Richard Hennig, and Mentor City Council President
Robert Shiner are in privity with the City. They contend plaintiff could have asserted his

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constitutional claims challenging the ordinance in the course of that criminal action, and this case
arises out of the same facts and circumstances as a the criminal case. Defendants argue that this
case is barred by claim preclusion.
II. Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility requirement
is not a “probability requirement,” but requires “more than a sheer possibility that the defendant has
acted unlawfully.” Id.
Federal Rule of Civil Procedure 8 provides the general standard of pleading and only
requires that a complaint “contain . . . a short plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Rule 8 marks a notable and generous departure from
the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of
discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.
(citations omitted). In deciding a motion to dismiss under Rule 12(b)(6), “a court should assume
the[ ] veracity” of “well-pleaded factual allegations,” but need not accept a plaintiff’s conclusory
allegations as true. Id.
The Court notes that res judicata is an affirmative defense that generally must be raised by
the defendants. FED. R. CIV. P. 8(c); Haskell v. Wash. Township, 864 F.2d 1266, 1273 (6th
Cir.1988). However, the Supreme Court as well as the Sixth Circuit have indicated that a court may
take the initiative to assert the res judicata defense sua sponte in “special circumstances.” Arizona
v. California, 530 U.S. 392, 412, (2000); Hutcherson v. Lauderdale County, Tennessee, 326 F.3d

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747, 757 (6th Cir.2003); Holloway Constr. Co. v. United States Dep’t of Labor, 891 F.2d 1211,
1212 (6th Cir.1989). In appropriate cases, this practice insures the finality of decisions, conserves
judicial resources, and protects litigants from multiple lawsuits. Holloway, 891 F.2d at 1212. For
these reasons, courts can raise res judicata sua sponte despite the technical pleading requirements
of Rule 8(c). The “special circumstance” recognized in Arizona, which was first articulated by
Justice Rehnquist in his dissent in United States v. Sioux Nation of Indians, 448 U.S. 371, 432
(1980), is when a court is on notice that the issue presented has been previously decided. Arizona,
530 U.S. at 412 (internal quotation marks omitted); Neff v. Flagstar Bank, FSB, 12-3732, 2013 WL
1197000 (6th Cir. Mar. 25, 2013). Where the allegations in the Complaint on their face demonstrate
that the action is barred by the affirmative defense, the Court may take notice of the defense and
dismiss the action for failure to state a claim upon which relief can be granted. Cataldo v. U.S. Steel
Corp., 676 F.3d 542, 547 (6th Cir. 2012).
III. Analysis
A. Res Judicata
The doctrine of res judicata prevents litigants from filing an action to relitigate matters that
were already decided in another court proceeding. Federal Courts must give the same preclusive
effect to a state-court judgment as that judgment receives in the rendering state. 28 U.S.C. § 1738;
Abbott v. Michigan, 474 F.3d 324, 330 (6th Cir. 2007); Young v. Twp. of Green Oak, 471 F.3d 674,
680 (6th Cir. 2006). To determine the preclusive effect a prior state court judgment would have on
the present federal action, the Court must apply Ohio law on res judicata. Migra v. Warren City
School District Board of Educ.465 U.S. 75, 81 (1984).
Under Ohio law, the doctrine of res judicata dictates that “a final judgment or decree

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rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction is
conclusive of rights, questions and facts in issue as to the parties and their privies, and is a complete
bar to any subsequent action on the same claim or cause of action between the parties or those in
privity with them.” Johnson’s Island, Inc. v. Bd. of Twp. Trustees, 69 Ohio St.2d 241, 243 (1982).
Application of the doctrine of res judicata does not depend on whether the original claim explored
all possible theories of relief. Brown v. Dayton, 89 Ohio St.3d 245, 248 (2000). Rather, “a valid,
final judgment upon the merits of the case bars any subsequent action ‘based upon any claim arising
out of the transaction or occurrence that was the subject matter of the previous action.’” Grava v.
Parkman Twp., 73 Ohio St.3d 379, 382 (1995). If the actions share a common nucleus of operative
facts, a plaintiff's second action is barred by res judicata, “even though [he] is prepared ... (1) to
present evidence or grounds or theories of the case not presented in the first action, or (2) to seek
remedies or forms of relief not demanded in the first action.” Id. at 383.
In Ohio, the doctrine of res judicata encompasses the two related concepts of claim
preclusion and issue preclusion. State ex rel. Davis v. Pub. Emp. Ret. Bd., 120 Ohio St.3d 386, 392
(2008). Claim preclusion dictates that “a valid, final judgment rendered upon the merits bars all
subsequent actions based upon any claim arising out of the transaction or occurrence that was the
subject matter of the previous action.” Grava, 73 Ohio St.3d at 382. It applies if four elements are
satisfied: (1) an arising out of the transaction or occurrence that was the subject matter of a previous
action; (2) a prior final, valid decision on the merits by a court of competent jurisdiction in the first
action; (3) a second action involving the same parties, or their privies, as the first; and (4) a second
action raising claims that were or could have been litigated in the first action. Hapgood v. City of
Warren, 127 F.3d 490, 493 (6th Cir.1997). Claim preclusion encompasses “all claims which were

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or might have been litigated in a first lawsuit.” Id.
By contrast, issue preclusion, or collateral estoppel, “precludes the relitigation of an issue
that has been actually and necessarily litigated and determined in a prior action.” MetroHealth Med.
Ctr. v. Hoffman-LaRoche, Inc., 80 Ohio St.3d 212, 217 (1997). Issue preclusion applies when a fact
or issue “(1) was actually and directly litigated in the prior action; (2) was passed upon and
determined by a court of competent jurisdiction; and (3) the party against whom [issue preclusion]
is asserted was a party in privity with a party to the prior action.” Thompson v. Wing, 70 Ohio St.3d
176, 183 (1994).
Plaintiff asserts three causes of action in this case which challenge the validity of the
ordinance and his prosecutions under the ordinance. First, plaintiff asserts a state law personal
injury claim based on physical, financial and emotional injuries he incurred in defending himself
against his four citations. Second, plaintiff asserts defendants conspired to deprive him of his right
to farm his property, and amended MCO 505.13 in a way that denied him due process. Finally,
plaintiff asserts a claim for theft, indicating he felt compelled to give his chickens away after his last
conviction in order to avoid the imposition of jail time under the ordinances repeat offender
provision. For the reasons set forth below, the Court finds that the claims are barred by the doctrine
of claim preclusion.
1. Second Action Arising out of the Transaction or Occurrence that was the Subject
matter of the Previous Action
The Court must first decide whether plaintiff was a party to another action which arose out
of the same transaction or occurrence as this action. Grava, 73 Ohio St.3d at 382. To meet this
criterion, the two actions in question must share a “common nucleus of operative facts.” Id. The

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prior actions in this case are the criminal prosecutions in the Mentor Municipal Court. Both actions
arise out of the citations plaintiff received from the City for violating MCO 505.13, and the
imposition of penalties for the violations. Although he now raises Constitutional and tort claims
against the City, his claims are all challenges to the City’s enforcement of the ordinance. He
contends he suffered injuries from a chicken coop constructed on cheap materials because he did
not want to spend much money on an item he envisioned he would be required to remove when the
City prosecuted him. The substance of his claim is not that the City was negligent in constructing
the chicken coop, but rather that they enforced the ordinance. Plaintiff also includes a claim for
theft. He is not claiming the City stole his chickens, but rather that they enforced the ordinance and
he felt compelled to give them away or face jail time. He contends he experienced financial and
emotional strain from defending against the enforcement of the ordinance. Finally, he challenges
the constitutionality of the ordinance, under which he was convicted. These claims fall within the
same ‘common nucleus of operative facts’ as the judgments of conviction, despite plaintiff’s new
theories of defense and creative characterization of the claims as torts. Because all of plaintiff’s
claims in this action are based on his prior citations under the ordinance, they arise out of the same
transaction or occurrence as and the first element of res judicata is satisfied.
2. Prior Final, Valid Decisions on the Merits by a Court of Competent Jurisdiction
Although this action arises from the same common nucleus of operative facts, res judicata
will not apply unless plaintiff received a final valid decision on the merits by a court of competent
jurisdiction in the first actions. Plaintiff received at least two such decisions. He was cited in June
2011 for violating MCO 505.13. He pled not guilty and the matter was set for bench trial in the
Mentor Municipal Court. See Mentor Municipal Court Case No. CRB 110071. In the course of that

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action, plaintiff filed a Motion to Dismiss the charges. The court denied the Motion and Plaintiff
was found guilty on July 13, 2011. Plaintiff was again cited for violating MCO 505.13 in
September 2012, . Once again, he pled not guilty and the matter was set for bench trial. See Mentor
Municipal Court Case No. CRB 1201413. He was found guilty on October 17, 2012, fined $100,
and assessed $370 in costs. Id. In that criminal prosecution, he filed a post-conviction petition, a
motion to vacate judgment, and a motion for summary judgment, all of which were denied. Id.
Moreover, Plaintiff admits he challenged the constitutionality and legality of MCO 505.13(B) in the
course of these criminal actions. This Court finds that two valid, final judgments were entered
against plaintiff with respect to the validity of the ordinance and plaintiff’s guilt for violating it. The
second element of res judicata is satisfied.
3. Second Action Involving the Same Parties, or Their Privies
In addition to the first two elements, for res judicata to apply, both actions in question must
involved the same parties or their privies. Plaintiff claims in his brief that this element is lacking
because Hennig and Shiner were not parties to the criminal action. The City of Mentor is a party
to both this civil action and the criminal actions brought against Plaintiff. Hennig is the Mentor
Law Director, and Shiner is the Mentor City Council President. While they may not have been
individually included as parties to the criminal action, they are officials of the City of Mentor and
are in privity with the City. Consequently, this third element is satisfied.
4. Second Action Raising Claims that Were or Could Have Been Litigated in the First
Actions
Finally, any claims asserted in this action that were actually litigated in the first action, or
which could have been raised and litigated in the first action are barred. Plaintiff contends he could

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not have raised these claims in the course of the criminal actions against him. He first states he filed
his civil action five days before he was convicted in the most recent criminal prosecution. He also
asserts his theft claim did not arise until after his criminal conviction because he gave away his
chickens prior to sentencing to avoid the imposition of jail time.
In the present case, Plaintiff either raised or could have raised his claims in the course of his
criminal prosecution, or in appeal of those judgments. He contends he raised his constitutional
claims in the criminal actions. Those claims were decided by the state court and cannot be litigated
for a second time in this court. In addition, his remaining claims in this action challenge the validity
of the ordinance and the City’s decisions to enforce the ordinance by prosecuting him. In the course
of these criminal actions, plaintiff filed a motion to dismiss, a post-conviction petition, a motion to
vacate judgment, and a motion for summary judgment. Plaintiff could and should have asserted his
challenges to the ordinance either in these motions or as defenses to the charges during trial. The
final element of res judicata has been met. Therefore, Plaintiff’s complaint is barred by the claim
preclusion doctrines of res judicata and is not properly before this Court.
B. Heck v. Humphrey
Finally, even if plaintiff’s claims were not barred by res judicata, they cannot be asserted
in this court to collaterally attack his state court convictions. A person convicted of a criminal
offense may not raise claims in a civil action if a judgment on the merits of those claims would
affect the validity of his conviction or sentence, unless the conviction or sentence has been set aside.
See Edwards v. Balisok, 520 U.S. 641, 646 (1997); Heck v. Humphrey, 512 U.S. 477, 486 (1994).
The holding in Heck applies whether plaintiff seeks injunctive, declaratory or monetary relief.
Wilson v. Kinkela, No. 97-4035, 1998 WL 246401 at *1 (6th Cir. May 5, 1998). Each of plaintiff’s

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claims challenge the validity of the ordinance he violated and the City’s authority to prosecute him.
In fact, he seeks damages for anxiety he experienced during his prosecution, for the value of the
chickens he relinquished in an agreement with the prosecutor to avoid jail time, and for time and
money he lost having to defend the charges. Plaintiff would only be entitled to these damages if the
validity of his convictions was called into question. As such, he must also allege his convictions
were declared invalid by either an Ohio state court or a federal habeas corpus decision. He did not
appeal any of his convictions and this case must be dismissed on this basis as well.
IV. Conclusion
Accordingly, defendants’ Motion to Dismiss is granted and this action is dismissed. The
Court certifies pursuant to 28 U.S.C. § 1915(a)(2) that an appeal of this decision cannot be taken
in good faith.
IT IS SO ORDERED.

Dated: June 21, 2013

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

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