Anderson v. Weiner et al

Filing 35

Memorandum Opinion: The motions for summary judgment filed by defendant Jon Weiner (Doc. No. 23 ) and by defendant John Gielink (Doc. No. 24 ) are granted and this case will be dismissed with prejudice. Further, the Court certifies that an appeal from this decision could not be taken in good faith. 28 U.S.C. Section 1915(a)(3). Judge Sara Lioi on 7/28/2015. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICARDO ANDERSON,

PLAINTIFF,
vs.
JON WEINER, et al.,

DEFENDANTS.

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CASE NO. 1:14-cv-1597

JUDGE SARA LIOI
MEMORANDUM OPINION

Before the Court are motions for summary judgment filed by the two remaining
defendants, Jon Weiner and John Gielink. (Doc. No. 23 [“Weiner MSJ”] and Doc. No. 24
[“Gielink MSJ”], respectively.) Plaintiff has opposed both motions (Doc. No. 27 [“Opp’n to
Weiner”] and Doc. No. 28 [“Opp’n to Gielink”])1 and defendants have filed their replies (Doc.
No. 30 [“Weiner Reply”] and Doc. No. 31 [“Gielink Reply”]). For the reasons set forth herein,
both motions are granted and this case is dismissed.
I. BACKGROUND
On July 18, 2014, pro se plaintiff Ricardo Anderson (“Anderson” or “plaintiff”)
filed this action against twelve defendants. He subsequently amended the complaint on July 31,
2014. (Doc. No. 3 (Amended Complaint [“Compl.”]).)2 Plaintiff set forth two claims: a federal
claim under 42 U.S.C. § 1983 of excessive force in violation of the fourth amendment, and a

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Although plaintiff’s opposition briefs were both filed after the June 15, 2015 extended deadline he sought and was
granted, neither defendant has raised that issue. Therefore, the Court has considered plaintiff’s briefs.
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On January 16, 2015, this Court dismissed the claims against all but two defendants, the movants, Jon Weiner
(“Weiner”) and John Gielink (“Gielink”). (See Doc. Nos. 4 and 5.)

state law claim of assault and battery. Both claims arose from an incident on July 19, 2012, when
plaintiff was arrested and charged with assaulting Weiner, a police officer.
The gravamen of plaintiff’s complaint is that, on July 19, 2012, after first evading
arrest by Weiner, a Bainbridge Township police officer (Compl. ¶¶ 6, 27), he was arrested at his
home by several officers, including Weiner and Gielink, who allegedly employed excessive force
in the form of a K-9 officer. Plaintiff alleges that Officer Weiner “commanded the K-9 to attack
the surrendering Plaintiff even though the Plaintiff posed no threat to the officers or the public.”
(Id. ¶ 40.) The K-9 bit plaintiff, causing “88 bite marks to [plaintiff’s] arms and legs.” (Id. ¶¶ 4244.)
On August 10, 2012, plaintiff was charged in an indictment with assaulting a
peace officer, a felony in the fourth degree, in violation of Ohio Rev. Code § 2903.13(A).
(Weiner MSJ, Ex. A.) On March 14, 2013, plaintiff entered a plea of guilty to a lesser included
offense of attempted assault, a felony of the fifth degree, in violation of Ohio Rev. Code. §
2923.02(A). (Id., Ex. B.) He was sentenced to incarceration for a period of 236 days, with credit
for time served. (Id.)
II. DISCUSSION
A.

Summary Judgment Standard
When a party files a motion for summary judgment, it must be granted “if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot be or
is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in
the record . . .; or (B) showing that the materials cited do not establish the absence or presence of

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a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1).
B.

Analysis
Both defendants have moved for summary judgment, with respect to the Section

1983 claim, based on the bar set forth in Heck, and, with respect to the assault and battery claim,
on the basis of the statute of limitations.
1.

Section 1983 and the Heck Bar
In Heck, the Supreme Court held that, “to recover damages for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that
the conviction or sentence has been reversed on direct appeal, expunged by executive order, or
declared invalid by a state tribunal authorized to make such determinations, or called into
question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck, 512
U.S. at 486-87.
Here, plaintiff pled guilty to attempted assault for the incident of July 19, 2012.
“The mere fact that [a] state court criminal conviction and a Section 1983 claim arise from the
same set of facts is not dispositive, and will not preclude a Section 1983 action, if the two are
consistent with each other, rather than one unavoidably implying the invalidity of the other.”
Lassen v. Lorain Cnty., Ohio, No. 1:13CV1938, 2014 WL 3511010, at * 3 (N.D. Ohio July 14,
2014) (citing Heck, 512 U.S. at 487; Swiecicki v. Delgado, 463 F.3d 489, 493 (6th Cir. 2006),
abrogated on other grounds by Wallace v. Kato, 549 U.S. 384, 127 S. Ct. 1091, 166 L. Ed. 2d
973 (2007)). “The Heck doctrine applies only where a Section 1983 claim would inescapably
imply the invalidity of the conviction.” Id.
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“[A] claim of excessive force does not necessarily relate to the validity of the
underlying conviction and therefore may be immediately cognizable.” Swiecicki, 463 F.3d at
493. There are, however, two circumstances in which an excessive force claim might conflict
with a conviction: (1) when the criminal provision makes the lack of excessive force an element
of the crime; and (2) when excessive force is an affirmative defense to the crime. Schreiber v.
Moe, 596 F.3d 323, 334 (6th Cir. 2010). The second circumstance is implicated here.
In Cummings v. City of Akron, 418 F.3d 676, 684 (6th Cir. 2005), the court
concluded that a § 1983 claim of excessive force was barred because excessive force is a defense
to the charge of assault for which Cummings entered a plea of no contest. The court noted: “The
struggle between Cummings and the officers gave rise to both Cummings’ assault conviction and
the excessive force claim, and the two are inextricably intertwined.” Id. at 682-83. “Additionally,
Cummings could have raised excessive force as a defense to the assault charge, but instead he
chose not to contest the charge.” Id. at 683.
Similarly, rather than defend against the charges brought against him, Anderson
entered a plea of guilty to attempted assault, and thereby waived any right to raise a defense of
excessive force.3 As a result, he cannot bring a separate § 1983 claim of excessive force without
first showing that his underlying attempted assault conviction has been called into question as
described in Heck.
Plaintiff’s argument that he is not trying to invalidate his conviction, but is merely
trying to vindicate the “misuse of power” by the police officers, is to no avail. The fact is that a

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Ohio Rev. Code § 2923.02(A) provides, in relevant part: “No person, purposely or knowingly, and when purpose
or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful,
would constitute or result in the offense.” In this case, to be guilty of attempted assault, Anderson would have to
engage in the same “conduct that, if successful, would constitute or result in” the crime of an assault. It follows,
therefore, that the defenses available for assault are equally available for attempted assault.

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claim of excessive force by a police officer is inconsistent with a conviction for assault or
attempted assault of that officer. Such a claim cannot be maintained in a separate civil action for
damages once a person has been convicted of or pled guilty to the criminal offense for which
excessive force would have been a defense. The conviction and/or plea waives the defense and
renders no longer cognizable any constitutional claim of excessive force. See City of Columbus v.
Fraley, 324 N.E.2d 735 (Ohio 1975), syllabus ¶ 3 (“In the absence of excessive or unnecessary
force by an arresting officer, a private citizen may not use force to resist arrest by one he knows
… is an authorized police officer engaged in the performance of his duties, whether or not the
arrest is illegal under the circumstances.”) By pleading guilty, plaintiff essentially conceded “the
absence of excessive or unnecessary force.” Hayward v. Cleveland Clinic Foundation, 759 F. 3d
601, 609 (6th Cir. 2014) (“[I]n this Circuit, if a plaintiff asserts a claim that contradicts an
element of an underlying criminal offense, or if that claim could have been asserted in criminal
court as an affirmative defense, Heck applies to bar the § 1983 suit.”).
Nor is the analysis changed by plaintiff’s suggestion in his complaint that he was
“surrendering” at the time the alleged excessive force was applied. The defendants have
submitted evidence in the form of their incident reports to establish that plaintiff was not
surrendering, but was resisting (despite warnings), at the times the K-9 officer and the tasers
were deployed. Once plaintiff was handcuffed and brought under control, this legitimate force
was discontinued. In the face of this evidence, plaintiff cannot simply rely upon the allegations in
his complaint, but must come forward with evidence to refute the officers’ evidence or at least to
call it into question so as to raise it to the level of a material factual dispute. He has failed to do
so, simply asserting in a conclusory fashion that he was surrendering.

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Defendants are both entitled to summary judgment on plaintiff’s first cause of
action brought under 42 U.S.C. § 1983 claim, and the same shall be granted.
2.

Assault/Battery and the Statute of Limitations
Under Ohio Rev. Code § 2305.111(B), “an action for assault or battery shall be

brought within one year after the cause of the action accrues.” The statute further provides that,
except in circumstances inapplicable here, the action accrues on “[t]he date on which the alleged
assault or battery occurred[.]”
Any action for assault and/or battery accrued on July 19, 2012. Plaintiff filed his
complaint in this case on July 18, 2014, one year too late. He does not argue otherwise, in fact
raising no argument on this point.
For this reason alone, summary judgment is appropriate and the Court need not
address any other arguments raised.
Defendants are both entitled to summary judgment on plaintiff’s second cause of
action for assault and battery, and the same shall be granted.
III. CONCLUSION
For the reasons set forth herein, the motions for summary judgment filed by
defendant Jon Weiner (Doc. No. 23) and by defendant John Gielink (Doc. No. 24) are granted
and this case will be dismissed with prejudice. Further, the Court certifies that an appeal from
this decision could not be taken in good faith. 28 U.S.C. § 1915(a)(3).
IT IS SO ORDERED.
Dated: July 28, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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