Jackson v. Cleveland et al
Filing
98
Opinion and Order. Plaintiff's Motion for Reconsideration, or in the alternative, to Certify Interlocutory Appeal or Final Judgment under Rule 54(b) on Claims against Administrator of Estates (Related doc # 85 ) is denied. Judge Christopher A. Boyko on 11/10/2016. (H,CM)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICKY JACKSON,
Plaintiff,
vs.
CITY OF CLEVELAND, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
CASE NO. 1:15CV989
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER
CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #85) of Plaintiff,
Ricky Jackson, for Reconsideration, or in the alternative, to Certify Interlocutory Appeal or
Final Judgment under Rule 54(b) on Claims against Administrator of Estates. For the
following reasons, the Motion is denied.
I. BACKGROUND
The instant case was brought under 42 U.S.C. §1983 and under state law against the
City of Cleveland and eight former detectives and/or sergeants who were allegedly involved
in the investigation of a 1975 murder that resulted in the prosecution and conviction of
Plaintiff, Ricky Jackson. Jackson was originally sentenced to death; but in 1978, his sentence
was commuted to life in prison. Edward Vernon, who was twelve years old at the time of the
murder, identified the perpetrators and testified at the trials of Jackson, Kwame Ajamu
(formerly Ronnie Bridgeman) and Wiley Bridgeman. In 2013, Vernon confessed to his pastor
that he was threatened and coerced by Defendant officers into testifying falsely against
Jackson, Ajamu and Bridgeman. At an evidentiary hearing in state court, Vernon recanted
and Jackson, Ajamu and Bridgeman were exonerated on November 21, 2014.
Jackson initiated this lawsuit on May 19, 2015, claiming Brady violations; fabrication
of evidence; malicious prosecution; failure to intervene; conspiracy to deprive Plaintiff of his
constitutional rights; supervisor liability; unconstitutional line-up procedures; intentional
infliction of emotional distress; civil conspiracy; respondeat superior liability;
indemnification; and negligent, willful, wanton and/or reckless conduct. On November 19,
2015, Jackson submitted a Motion for Leave to File a Second Amended Complaint (ECF
DKT #68), seeking to add J. Reid Yoder, Esq., who was recently appointed Administrator of
the Estates of Defendants, Eugene Terpay, Peter F. Comodeca, John T. Staimpel and James T.
Farmer.
In its June 30, 2016 Opinion and Order (ECF DKT #82), the Court denied Plaintiff
leave to add the Administrator of the Estates on the § 1983 and malicious prosecution claims
because the injuries alleged were not physical injuries and the causes of action did not survive
under R.C. § 2305.21. R.C.§2305.21 provides in pertinent part that, “in addition to the causes
of action which survive at common law, causes of action for mesne profits, or injuries to the
person or property, or for deceit or fraud, also shall survive; and such actions may be brought
notwithstanding the death of the person entitled or liable thereto.” (Emphasis added).
-2-
In his current Motion, Jackson asserts that it was a clear error of law to find that
Plaintiff’s federal claims against the deceased Defendants did not survive their deaths.
Jackson argues that allowing these claims to abate is contrary to the purpose of § 1983 and is
inconsistent with the federal policy underlying the cause of action. The Court disagrees.
II. LAW AND ANALYSIS
Reconsideration
“District courts possess the authority and discretion to reconsider and modify
interlocutory judgments any time before final judgment.” Rodriguez v. Tenn. Laborers
Health & Welfare Fund, 89 F.App’x 949, 952 (6th Cir.2004). See also Moses H. Cone Mem'l
Hosp. v. Mercury Constr. Corp., 460 U.S.1, 12 (1983) (“every order short of a final decree is
subject to reopening at the discretion of the district judge”). “District courts have authority
both under common law and Rule 54(b) to reconsider interlocutory orders and to reopen any
part of a case before entry of final judgment.” Rodriguez, 89 F.App’x at 959.
“Traditionally, courts will find justification for reconsidering interlocutory orders
when there is (1) an intervening change of controlling law; (2) new evidence available; or, (3)
a need to correct a clear error or prevent manifest injustice.” Id. (citing Reich v. Hall Holding
Co., 990 F.Supp. 955, 965 (N.D.Ohio 1998)). However, as announced in Davie v. Mitchell,
291 F. Supp. 2d 573 (N.D. Ohio 2003): “Motions for reconsideration are disfavored, and a
motion for reconsideration is unfounded unless it either calls ... attention to an argument or
controlling authority that was overlooked or disregarded in the original ruling, presents
evidence or argument that could not previously have been submitted, or successfully points
out a manifest error of fact or law.” Id. at 634.
-3-
At the outset, it is important to note that Jackson’s argument was never raised before
and that new matters are inappropriately addressed for the first time on a motion for
reconsideration. See Robinson v. Select Portfolio Servicing, Inc., 522 F.App’x 309, 313 (6th
Cir. 2013). Nevertheless, after carefully reviewing the briefs submitted and the authorities
cited, the Court finds that its determination that the federal claims against the deceased
Defendants, Terpay, Farmer, Staimpel and Comodeca, do not survive pursuant to
R.C. § 2305.21 was not erroneous.
By its clear language, 42 U.S.C. § 1983 does not provide for the survival of civil
rights actions. “Indeed, the Supreme Court has definitively held that § 1983 is deficient in not
providing for survivorship.” Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d
1041, 1045 (11th Cir. 2011), citing Robertson v. Wegmann, 436 U.S. 584, 588 (1978). Where
federal law is “deficient,” the state law of the forum applies as long as it is “not inconsistent
with the Constitution and the laws of the United States.” 42 U.S.C. § 1988(a); Robertson, 436
U.S. at 588-89.
In order to determine whether R.C. § 2305.21 is inconsistent with federal law in the
context of § 1988(a), the Court must look at the federal statute at issue and the policies
underlying it. “Two important policies underlying § 1983 include ‘compensation of persons
injured by deprivation of federal rights and prevention of abuses of power by those acting
under color of state law.’” Gilliam, 639 F.3d at 1046-47; Robertson, 436 U.S. at 590.
A state statute cannot be considered “inconsistent” with federal law merely
because the statute causes the plaintiff to lose the litigation. ... § 1988 quite
clearly instructs us to refer to state statutes; it does not say that state law is to
be accepted or rejected based solely on which side is advantaged thereby.
Id. at 593.
-4-
Furthermore, there is “nothing in [§ 1983] to indicate that a state law causing abatement of a
particular action should invariably be ignored in favor of absolute survivorship.” Id. at 590.
The very unique facts of the instant case involve police conduct that occurred forty
years ago and Defendant police detectives or sergeants who have long since died. This Court
believes that applying R.C. § 2305.21 in the great majority of § 1983 cases will adequately
provide compensation for constitutional injuries and deter state actors who violate the
Constitution.
Jackson contends that he did, indeed, suffer physical injury; and claims for physical
injuries do survive the death of the defendant. However, violation of personal rights is not a
physical injury. Tinney v. Richland County, No. 1:14CV703, 2014 WL 6896256 at *2 (N.D.
Ohio Dec. 8, 2014); Witcher v. Fairlawn, 113 Ohio App.3d 214 (1996); Murray v. State,
2002-Ohio-664, 2002 WL 337732, *3 (Ohio App. 8 Dist. 2002). Allegations of physical or
emotional harm, even due to egregiously long wrongful incarceration, do not convert civil
rights violations into the type of tort causes of actions that are not abated by defendant’s
death.
Simply because application of the Ohio statute on survival of actions, in this unusual
instance, defeats Plaintiff’s claim against the Estates of the deceased Defendants does not
mean that the Ohio law is “inconsistent” with federal law.
The Court finds there is no “need to correct a clear error or prevent manifest
injustice.” Plaintiff’s Motion for Reconsideration is therefore denied.
Interlocutory Appeal
Under 28 U.S.C. § 1292(b), a district judge has discretion to certify a non-final order
-5-
for an interlocutory appeal if the judge believes the petitioner has adequately shown that:
(1) the question involved is one of law; (2) the question is controlling; (3) there
is substantial ground for difference of opinion respecting the correctness of the
district court’s decision; and (4) an immediate appeal would materially
advance the ultimate termination of litigation.
In re Allstate Ins. Co., 2010 U.S. App. LEXIS 27325, *1 (6th Cir. 2010) (citing
28 U.S.C. § 1292(b) and Cardwell v. Chesapeake & Ohio Ry. Co., 504 F.2d
444, 446 (6th Cir. 1974)) (quotations omitted).
Although discretionary, “review under § 1292(b) should be sparingly granted and then
only in exceptional cases.” In re Allstate, 2010 U.S. App. LEXIS at *2 (citing Kraus v. Bd. of
County Rd. Comm’rs for Kent County, 364 F.2d 919, 922 (6th Cir. 1966)). Thus, “doubts
regarding appealability . . . [should be] resolved in favor of finding that the interlocutory
order is not appealable.” United States v. Stone, 53 F.3d 141, 143-44 (6th Cir.1995) (citation
omitted).
Plaintiff contends that there is substantial ground for difference of opinion as to the
survival of his § 1983 claims. He points to the Supreme Court’s decision in Robertson v.
Wegmann, but that case dealt with Louisiana survivorship statutes. Moreover, in contrast
with Plaintiff’s position, the Robertson Court held:
Our holding today is a narrow one, limited to situations in which no claim is
made that state law generally is inhospitable to survival of § 1983 actions and
in which the particular application of state survivorship law, while it may
cause abatement of the action, has no independent adverse effect on the
policies underlying § 1983.
Plaintiff also asks this Court to look to the case of Jaco v. Bloechle, 739 F.2d 239 (6th
Cir. 1984). However, quite distinct from the instant fact pattern, in Jaco, the plaintiff’s son
(decedent) was shot by police officers and killed instantaneously. The Sixth Circuit was
-6-
critical of the Ohio survival statute because it would have permitted survival of the civil rights
cause of action if the death had not been instantaneous.
To show a substantial ground for difference of opinion under 28 U.S.C. § 1292(b),
Jackson must illustrate that:
(1) the question is difficult, novel and either a question on which there is little
precedent or one whose correct resolution is not substantially guided by
previous decisions; (2) the question is difficult and of first impression; (3) a
difference of opinion exists within the controlling circuit; or (4) the circuits are
split on the question.
In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (citation omitted). “The ‘substantial
ground’ requirement has been characterized as a genuine doubt or conflicting precedent as to
the correct legal standard.” Hurley v. Deutsche Bank Trust Co. Americas, No. 1:08cv361,
2009 U.S. Dist. LEXIS 33654 at *11-12 (W.D. Mich. April 21, 2009) (citation omitted).
Jackson has cited no precedent which calls into question this Court’s interpretation of
the Ohio statute on survival of actions. Further, Jackson has demonstrated no difference of
opinion within this Circuit nor any split among the circuits on this issue.
Also, when applying the 28 U.S.C. § 1292(b) factors, an immediate appeal is said to
advance the ultimate termination of litigation if it would “appreciably shorten the time, effort,
and expense exhausted between the filing of a lawsuit and its termination.” Trimble v. Bobby,
No. 5:10cv14, 2011 U.S. Dist. LEXIS 54142 at *6 (N.D. Ohio May 20, 2011) (citing Berry v.
Sch. Dist. of City of Benton Harbor, 467 F. Supp. 721, 727 (W.D. Mich. 1978)). However,
“when litigation will be conducted in substantially the same manner regardless of [the
Court’s] decision, the appeal cannot be said to materially advance the ultimate termination of
the litigation.” In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 2002).
-7-
Certainly, in the within matter, allowing an interlocutory appeal will not shorten the
litigation. The remaining Defendants represent that they stand ready to file motions for
summary judgment whether or not an appeal is permitted. An interlocutory appeal, in the
instant case, will not minimize the time, effort or expense of the litigation.
Plaintiff’s Motion to Certify an Interlocutory Appeal under 28 U.S.C. § 1292(b) is
denied.
Fed.R.Civ.P. 54(b)
Fed.R.Civ.P. 54(b) states in pertinent part:
When an action presents more than one claim for relief – whether as a claim,
counterclaim, crossclaim, or third-party claim – or when multiple parties are
involved, the court may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties, only if the court expressly determines that
there is no just reason for delay.
The Sixth Circuit has outlined a number of factors a district court must consider
before entering an order of final judgment permitting appeal of fewer than all the claims in a
multi-claim action. These factors include:
(1) the relationship between the adjudicated and unadjudicated claims; (2) the
possibility that the need for review might or might not be mooted by future
developments in the district court; (3) the possibility that the reviewing court
might be obliged to consider the same issue a second time; (4) the presence or
absence of a claim or counterclaim which could result in set-off against the
judgment sought to be made final; (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like. Depending upon the facts of the
particular case, all or some of the above factors may bear upon the propriety of
the trial court's discretion in certifying a judgment as final under Rule 54(b).
Corrosioneering, Inc. v. Thyssen Environmental Systems, Inc. 807 F.2d 1279, 1283
(6th Cir.1986).
Rule 54(b) facilitates the entry of judgment, “where the parties demonstrate[] a need
for making review available on some of the claims or parties before entry of final judgment as
-8-
to all.” Id. at 1282. However, Callahan v. Alexander, 810 F. Supp. 884, 886 (E.D.Mich.
1993) instructs:
The Sixth Circuit has mandated that certification under Fed.R.Civ.P. 54(b) be a
rare and extraordinary event. It is available only in unique situations where the
moving party illustrates that, but for the certification, he would suffer some
extreme hardship.
After consideration of these factors and the arguments of the parties, the Court
disagrees with Plaintiff and declines to find that there is no just reason for delay. Federal
courts do not favor piecemeal appeals. Thus, the Court finds that this is not the extreme, rare,
extraordinary or unique harsh case where an interlocutory appeal would be appropriate.
III. CONCLUSION
For the foregoing reasons, the Motion (ECF DKT #85) of Plaintiff, Ricky Jackson, for
Reconsideration, or in the alternative, to Certify Interlocutory Appeal or Final Judgment
under Rule 54(b) on Claims against Administrator of Estates is denied.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: November 10, 2016
-9-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?