Wheeler v. United States of America

Filing 47

Memorandum of Opinion and Order accepting Plaintiff's objections as timely filed and vacating the February 16, 2016 Judgment 43 . The court hereby adopts the Magistrate Judge's Report and Recommendation (re 42 ) in its entirety, ov errules Plaintiff's Objections 44 and 46 , grants Defendant's Motion to Dismiss (ECF No. 27) and denies both Plaintiff's Motion for Summary Judgment (ECF 32) and Defendant's Motion to Strike (ECF No. 35) as moot. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this decision cannot be taken in good faith. Signed by Judge Solomon Oliver, Jr on 1/18/2017. (D,M)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES LEE WHEELER,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No.: 3:15 CV 366

JUDGE SOLOMON OLIVER, JR.

MEMORANDUM OF OPINION
AND ORDER

This case is before the Court on the Report and Recommendation of Magistrate Judge
James R. Knepp, II, filed January 25, 2016. (ECF No. 42). The Magistrate Judge determined
the Plaintiff’s claim under the Federal Tort Claims Act (“FTCA”) was barred by the statute of
limitations and recommended that the Court grant the Defendant’s Motion to Dismiss.
On February 16, 2016, United States District Court Judge David A. Katz adopted the
Report and Recommendation finding the fourteen day period to file objections lapsed and no
Objections were filed. (ECF No. 43). Six days later, on February 22, 2016, Plaintiff filed
Objections to the Report and Recommendation. He indicates in his Certificate of Service that he
placed his Objections with prison officials fourteen days earlier on February 8, 2016. The
Defendant responded to Plaintiff’s Objections but did not contest their timeliness. The Court
therefore accepts that the Objections were timely filed on February 8, 2016, and vacates the
February 16, 2016 judgment adopting the Report and Recommendation (ECF No. 43). The

Court will consider the Objections de novo.
Plaintiff was convicted of one count of substantive RICO, one count of RICO conspiracy,
and one count of conspiracy to possess with intent to distribute narcotics in violation of Federal
law on June 1, 2004. See United States v. Wheeler, 535 F.3d 446 (6th Cir. 2008). On January 5,
2005, this District Court issued a forfeiture order subjecting certain properties in Indianapolis to
forfeiture. The United States Sixth Circuit Court of Appeals reversed his RICO convictions and
the forfeiture on August 1, 2008. This District Court partially vacated the forfeiture order on
February 8, 2010. Plaintiff alleges that the Defendant disposed of the forfeited property by
auction sale, entitling him to $ 1,270,000.00 in damages.
Plaintiff filed his administrative claim for relief for his lost property under the FTCA in
April 2011. Under the FTCA, the claim must be presented to the appropriate federal agency
within two years after it accrued. The issue before the Court is the date on which this claim
began to accrue. The Magistrate Judge determined the claim accrued on either August 1, 2008,
the effective date of the Sixth Circuit’s judgment reversing his RICO convictions and associated
forfeitures, or December 29, 2008, the date the mandate issued by the Sixth Circuit following
Plaintiff’s Petition for Rehearing En Banc. The Magistrate reasoned Plaintiff was on notice from
the date of the reversal of the forfeiture that the United States no longer had a claim to the real
property at issue. Based on either of these dates, Plaintiff’s FTCA claim accrued more than two
years before it was presented to the appropriate federal agency, making it untimely.
Plaintiff objects to this reasoning and contends accrual occurred either on April 20, 2009,
the date the Supreme Court denied certiorari, or June 9, 2009, the date of his re-sentencing. In
support of his assertion, he cites two cases. The first case, Clay v. United States, 537 U.S. 522

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(2003), concerns the issue of when a federal conviction becomes final for purposes of calculating
the one year period for filing a Motion to Vacate under 28 U.S.C. § 2255. The other case, Heck
v. Humphrey, 512 U.S. 477 (1994), states that a plaintiff cannot obtain damages for a claim that
would call into question a conviction or sentence unless the conviction or sentence has been
overturned on appeal or called into question by a Petition for a Writ of Habeas Corpus. The
Defendant filed a Response to the Objections arguing that the cases cited by Plaintiff do not
support his conclusion and asserting that the Magistrate properly held that Plaintiff’s FTCA
claim is barred by the statute of limitations.
The Court has reviewed the briefs before the Magistrate Judge as well as the Report and
Recommendation and briefs of both parties. Based on the reasoning and citations of authority
set forth in Magistrate Judge Knepp’s Report and Recommendation (ECF No. 42), as well as
upon a thorough de novo review of this Court’s file and the applicable law, the Court ADOPTS
the Magistrate Judge’s Report and Recommendation in its entirety, OVERRULES Plaintiff’s
Objections thereto (ECF No. 44,46), GRANTS Defendant’s Motion to Dismiss (ECF No. 27)
and DENIES both Plaintiff’s Motion for Summary Judgment (ECF No. 32) and the Defendant’s
Motion to Strike (ECF No. 35) as moot. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an appeal of this decision cannot be taken in good faith.
IT IS SO ORDERED.

/S/SOLOMON OLIVER, JR.
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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