Thompson v. Wilcox et al

Filing 7

Memorandum of Opinion granting defendants' Motion to dismiss for failure to state a claim (Related Doc # 6 ) and this action is dismissed. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Donald C. Nugent 10/11/2017(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CALVIN THOMPSON,
Plaintiff,
v.
CUYAHOGA COUNTY
SHERIFF’S DEPARTMENT, et al.,
Defendants.

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CASE NO. 1:17 CV 1588
JUDGE DONALD C. NUGENT

MEMORANDUM OF OPINION

Defendants’ Motion to Dismiss Complaint under Federal Civil Procedure Rule 12(b)(6)
(Doc. No. 6) is before the Court. Pro se Plaintiff Calvin Thompson filed the above-captioned action
under 42 U.S.C. §§ 1981 and 1983, 18 U.S.C. §§ 241 and 242, and “373 U.S.C. 83" against the
Cuyahoga County Sheriff’s Department, former Cuyahoga County Jail Associate Warden Alfred
Wilcox, Cuyahoga County Assistant Prosecutor Denise Cameron, and Cuyahoga County Narcotics
Division Chief Sale Smith. In the Complaint, he challenges his 1995 arrest and conviction for drug
trafficking and bringing contraband into the Cuyahoga County Jail, where he was employed as a
corrections officer. Defendants contend Plaintiff filed a previous action in this Court against these
same Defendants pertaining to the same incident and this action is barred by res judicata. They
further assert it is time-barred, § 1981 claims cannot be asserted against state actors, convictions
cannot be challenged under § 1983, the Sheriff’s Department is not sui juris, and the prosecutor is
immune from suit. For the reasons stated below, the Motion (Doc. No. 6) is granted, and this action
is dismissed.

Factual and Procedural Background
Plaintiff indicates he was employed as a corrections officer in the Cuyahoga County Jail in
1995. He states an inmate at the jail offered him money to bring marijuana cigarettes to him in the
jail, but Plaintiff refused the offer. He contends the inmate’s girlfriend then began putting pressure
on Plaintiff to bring marijuana into the jail for the inmate. He states he finally acquiesced to her
demands and brought several marijuana cigarettes into the jail. When he gave them to the inmate,
he was arrested. He later learned the inmate was acting as a jail informant.
Plaintiff states he was placed in a single cell, in full view of his former colleagues. He states
he cried for hours until he was released on bond. He was convicted in 1995 on charges of trafficking
in drugs, and bringing contraband property into a detention facility. He served his sentence and paid
all of his court costs. His conviction was expunged in 2008.
Plaintiff has now filed this action to contest the actions which led to his conviction twentytwo years ago. He alleges he was entrapped by the Defendants to do something he would not
otherwise have done. He alleges that Caucasian officers who smuggled drugs to inmates were not
treated as harshly as he was treated. He indicates the Defendants embarrassed and humiliated him
by placing him in a cell where he could be seen by other corrections officers. He asserts claims for
entrapment, malicious prosecution, intentional infliction of emotional distress, violation of Fourth
Amendment rights, denial of due process and denial of equal protection.
This is the second case Plaintiff filed this year against the Cuyahoga County Sheriff’s Office,
Wilcox, and Cameron, asserting the same claims, to contest his 1995 arrest and conviction. That
action, Thompson v. Cuyahoga Cty Sheriff’s Dept., No. 1:17 CV 126 (N.D. Ohio May 9,
2017)(Gwin, J.) was dismissed as clearly time-barred and for failing to state a claim upon which

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relief could be granted. Plaintiff did not appeal that judgment, but instead, filed this action, adding
Madigan as a Defendant.
Standard of Review
A Motion to Dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) allows a
Defendant to test the legal sufficiency of the Complaint without being subject to discovery. See
Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003). In evaluating a Motion to
Dismiss, the Court must construe the Complaint in the light most favorable to the Plaintiff, accept
its factual allegations as true, and draw reasonable inferences in favorable of the Plaintiff. See
Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The Court will not, however, accept
conclusions of law or unwarranted inferences cast in the form of factual allegations. See Gregory
v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000).
In order to survive a Motion to Dismiss, a Complaint must provide the grounds of the
entitlement to relief, which requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). That is,“[f]actual allegations must be enough to
raise a right to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).” Id. (internal citation omitted); see Association of
Cleveland Fire Fighters v. City of Cleveland, No. 06–3823, 2007 WL 2768285, at *2 (6th Cir.
Sept.25, 2007) (recognizing that the Supreme Court “disavowed the oft-quoted Rule 12(b)(6)
standard of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)”). Accordingly,
the claims set forth in a Complaint must be plausible, rather than conceivable. Twombly, 550 U.S.
at 564; Iqbal, 556 U.S. at 677-78.

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On a Motion brought under Rule 12(b)(6), the Court’s inquiry is limited to the content of the
Complaint, although matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the Complaint may also be taken into account. See Amini v. Oberlin College,
259 F.3d 493, 502 (6th Cir. 2001).
Discussion
This action is barred by the doctrine of res judicata. The doctrine of res judicata dictates
that a final judgment on the merits of a claim precludes a party from bringing a subsequent lawsuit
on the same claim or from raising a new defense to defeat the prior judgment. Gargallo v. Merrill
Lynch, Pierce, Fenner & Smith, Inc., 918 F.2d 658, 660 (6th Cir. 1990). It bars relitigation of every
issue actually brought before the court and every issue or defense that should have been raised in
the previous action. Id. The purpose of this doctrine is to promote the finality of judgments and
thereby increase certainty, discourage multiple litigation, and conserve judicial resources. Westwood
Chemical Co. v. Kulick, 656 F.2d 1224, 1229 (6th Cir. 1981). A subsequent action will be subject
to a res judicata bar only if there is an identity of the facts creating the right of action and of the
evidence necessary to sustain each action. Both of these requirements are met in this case. Plaintiff
already brought an action based on the same operative facts and raising the same claims as he asserts
in this case. He is barred from litigating this matter for a second time.
Furthermore, this action is still subject to dismissal for the reasons stated by United States
District Judge James S. Gwin when he dismissed the first case. The two-year statute of limitations
for bringing an action under 42 U.S.C. §§ 1981 and 1983 has expired. LRL Properties v. Portage
Metro Housing Authority, 55 F. 3d 1097 (6th Cir. 1995); See Tolbert v. State of Ohio Dept. of
Transportation, 172 F.3d 934 (6th Cir.1999). Plaintiff cannot bring claims under 18 U.S.C. §§ 241

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and 242, as they are criminal statutes that do not provide a private right of action. U.S. v. Oguaju,
No. 02-2485, 2003 WL 21580657, *2 (6th Cir. July 9, 2003); Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 511 (2d Cir.1994). The remaining claims are state law claims, and having
dismissed all federal law claims, the Court no longer has supplemental jurisdiction to consider
purely state law matters. United Mine Workers of America v. Gibbs, 383 U.S. 715, 724 (1966).
Conclusion
Accordingly, Defendants’ Motion to Dismiss (Doc. No. 6) is granted and this action is
dismissed. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision
could not be taken in good faith.1
IT IS SO ORDERED.

/s/Donald C. Nugent
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE
Dated: _October 11, 2017__

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28 U.S.C. § 1915(a)(3) provides:
An appeal may not be taken in forma pauperis if the trial court certifies that it is not
taken in good faith.
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