Hobbs v. Summit County Sheriff et al

Filing 51

Memorandum Opinion: For the reasons discussed within the Memorandum, Defendants' motion to dismiss for lack of subject matter jurisdiction (Doc. No. 40 ) is GRANTED. Because there is lack of subject matter jurisdiction, the Court need not address any of Defendants' other arguments. Judge Sara Lioi on 02/01/12. Related documents 45 , 46 . (H,KR)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JILLIAN HOBBS,
PLAINTIFF,
vs.
COUNTY OF SUMMIT, et al.,

DEFENDANTS.

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CASE NO. 5:10CV2069
JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court is the Defendants’ motion to dismiss (Doc. Nos. 40, 50)1,
Plaintiff’s opposition (Doc. No. 45), and Defendants’ reply (Doc. No. 46). For the reasons
discussed below, the motion is GRANTED.
I. BACKGROUND 2
On September 15, 2010, Plaintiff Jillian Hobbs (“Plaintiff” or “Hobbs”) filed a
purported Class Action Complaint under 42 U.S.C. § 1983 against Summit County (“the
County”) and two of its deputy sheriffs, Scott Plymire (“Plymire”) and Glenn Stott (“Stott”)
(collectively as “Defendants”). (Doc. No. 1.) Plymire and Stott are sued in both their individual

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When the motion was originally filed, a filing error occurred. (See Doc. No. 39.) The Clerk required refiling of the
motion. After the Court took the motion under advisement, it discovered that the refiled motion did not include the
exhibits that had been filed with the original motion. By Order dated November 23, 2011, the Court directed
Defendants to file the exhibits, which they did as Doc. No. 50.

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This background section is constructed from a combination of the allegations in the Complaint (Doc. No. 1),
various documents filed by the parties which support their respective views of the criminal proceedings before the
state courts (Doc. Nos. 14, 41, 42, 44), and the public records of the Ninth District Court of Appeals of Ohio and the
Supreme Court of Ohio. This Court can and does take judicial notice of these public records; therefore, to the extent
Doc. Nos. 42 and 44 were filed as motions to take judicial notice, those motions are GRANTED. See Buck v.
Thomas M. Cooley Law School, 597 F.3d 812, 816 (6th Cir. 2010) (“Although typically courts are limited to the
pleadings when faced with a motion [to dismiss], a court may take judicial notice of other court proceedings without
converting the motion into one for summary judgment.”).

and official capacities. The Complaint seeks declaratory and injunctive relief as well as
compensatory and punitive damages for alleged violations of Plaintiff’s federal and state
constitutional rights and for state law torts. It alleges that the County’s customs and policies were
“a deliberate moving force behind the violations.” (Compl. ¶ 2.) Plaintiff seeks relief “for losses
which occurred and continue as a result of her custodial interrogation and arrest on September
16, 2009 and her continued detention pursuant to a warrant issued on that date and filed with the
Clerk of the Barberton Municipal Court September 17, 2009.” (Compl. ¶ 3.) All five claims for
relief rest upon the following factual allegations.
On September 16, 2009, Defendant Plymire received a report from a patrol officer
that a victim, Luana Scott, had reported a burglary. Plymire and his partners, Detectives Klein
and Brown, went to Scott’s home to confirm the report. Plymire also learned that there were two
witnesses. The witnesses were interviewed and confirmed that they had seen Plaintiff entering
the victim’s home the day before.
Plymire went to Plaintiff’s home. She was there with a male friend, Mr. Gowdy;
Plaintiff invited the officers in. The officers told Hobbs and Gowdy that they were investigating
a burglary and that witnesses had told them they had seen Hobbs entering the victim’s home.
Hobbs and Gowdy asked to go outside to speak privately and Plymire agreed. The officers also
went outside, but remained far enough away from Hobbs and Gowdy to give them privacy. Then
Hobbs returned, visibly upset and crying. She confessed that she had taken things from Scott’s
home because she had a drug problem. The detectives and Hobbs went back into her residence,
while Plymire stayed outside talking to Gowdy.
Hobbs was “Mirandized.” She then told the detectives that the stolen property was
not in her home, but that she had heroin paraphernalia in the bathroom. Hobbs was placed under
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arrest due to her confession. She insisted that Gowdy had nothing to do with the burglary, so he
was not arrested. The officers transported Hobbs to the Summit County Jail. (Trans. of
Suppression Hearing at 8-18, Doc. No. 14-3.)
On September 16, 2009, Defendant Plymire signed a complaint on a preprinted
form alleging that Plaintiff, on September 15, 2009, violated O.R.C. § 2911.12 and “trespass[ed]
in an occupied structure that is a permanent or temporary habitation of Laura Scott, when Laura
Scott is present or likely to be present, with purpose to commit in the habitation a criminal
offense; in violation of Section 2911.12 of the Revised Code.” (Compl. ¶¶ 24, 25; Doc. No. 142.) Plymire’s complaint was sworn to and subscribed before Defendant Stott, acting as a deputy
clerk for the Barberton Municipal Court. Plaintiff alleges that an arrest warrant issued at the
same time (Compl. ¶ 27); however, Defendants deny that allegation. (Answer ¶ 27.)
On September 17, 2009, the criminal complaint against Plaintiff was filed with
the Clerk of the Barberton Court. (Compl. ¶ 31.) Plaintiff asserts that the alleged arrest warrant
“was void ab initio and in violation of the Fourth and Fourteenth Amendment and Ohio
constitutional and statutory law.” (Compl. ¶ 36.)
While Plaintiff was detained pursuant to the alleged arrest warrant, a Summit
County deputy sheriff appeared before the County grand jury. As a direct result, Plaintiff was
indicted on October 1, 2009 for one count of burglary in violation of O.R.C. § 2911.12. The case
was assigned Case No. 2009 09 2902 in the Summit County Court of Common Pleas and the
proceedings are all a matter of public record. (Compl. ¶ 37.)
A motion to dismiss and to suppress was filed in the state criminal case (Doc. No.
44-2 at 14-17), which the state opposed (Doc. No. 44-2 at 20-23.) On February 25, 2010, after a

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hearing,3 the state court judge denied the motion. He determined that “an arrest warrant found to
be defectively issued is a violation of rights guaranteed in the Constitution and as such warrants
some type of judicial remedy.” (Compl. ¶ 40; Doc. No. 14-4 at 7.) The trial court further
determined that “the victim of a detention and indictment predicated on an invalid arrest warrant
is not without judicial recourse and the prosecution does not escape scrutiny.” (Compl. ¶ 41;
Doc. No. 14-4 at 7.) The trial court concluded that, although the warrant for Plaintiff’s arrest was
defectively issued in violation of the Constitution, the exclusionary rule was “the relevant
remedial framework governing disposition” of the motion, but that “no evidence was obtained as
a direct result of the improperly issued arrest warrant.” (Compl. ¶ 42; Doc. No. 14-4 at 7.) The
trial court further concluded “that the invalid arrest warrant, in all likelihood, amounts to
harmless error” such that Plaintiff “does not seem to have suffered any legally redressible [sic]
prejudice.” (Compl. ¶ 43; Doc. No. 14-4 at 8.)
The state moved for a correction of the trial judge’s order. (Doc. No. 44-2 at 1-5.)
Hobbs opposed the motion. (Doc. No. 44-3.) Before the trial court had ruled on the motion, on
March 29, 2010, Plaintiff entered a plea of no contest to the charge of burglary and was
sentenced to two years imprisonment. (Compl. ¶ 44.) She was also sentenced to a mandatory
three years of post-release supervision, which, if violated, could subject her to up to nine
additional months in prison. (Doc. No. 14-5.)
On May 5, 2010, Hobbs filed an appeal raising one assignment of error
challenging the trial court’s denial of her motion to suppress and to dismiss.4 On June 12, 2011,

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The hearing transcript has been supplied. (See Doc. No. 14-3.)

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The Journal Entry memorializing Hobbs’s change of plea from not guilty to no contest and imposing her sentence
makes no mention of preserving any issue for appeal notwithstanding her plea. See Doc. No. 14-5. However, there is
nothing in the appellate record to suggest that the state raised this issue on appeal and, therefore, the Court assumes
that either the issue was preserved for appeal or the state had waived any challenge in that regard.

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while her appeal was pending, Plaintiff completed her definite sentence and was released from
incarceration. (Doc. No. 41.) On June 29, 2011, the Ninth District Court of Appeals (Case No.
25379) affirmed the trial court’s February 25, 2010 ruling. (Doc. No. 42-1.)
Neither party has outlined the subsequent proceedings;5 however, on September 2,
2011, Hobbs filed a notice in the Supreme Court of Ohio that the Ninth District Court of Appeals
had certified a conflict pursuant to Ohio App. R. 25 as to the following question: “May a law
enforcement officer, serving a dual-role as an officer and deputy clerk of a local municipal court,
act as a neutral and detached magistrate for purposes of Crim. R. 4(A)?” This certified question
was accepted by the Ohio Supreme Court and assigned Case No. 2011-1504. On September 19,
2011, Hobbs also filed for a discretionary appeal before the Ohio Supreme Court. On November
22, 2011, the Ohio Supreme Court accepted the appeal (Case No. 2011-1593) on Hobbs’s
proposition of law number 1:
A law enforcement officer serving in a dual role as an officer and deputy clerk of
a local municipal court may not act as a neutral and detached magistrate. When a
warrantless arrest has occurred without showing why a warrant could not first be
obtained and is followed by a “bare bones” complaint for a resulting arrest
warrant for continued detention issued by operation of such dual role officer as a
recurring, systemic practice, the exclusionary rule applies to all evidence directly
or indirectly obtained as a result of the policy from the date the policy was
implemented, not simply from the date the particular warrant issued.
On November 22, 2011, the Ohio Supreme Court ordered the two cases consolidated for briefing
and allowed Hobbs forty (40) days to file her brief. Hobbs subsequently sought an extension
until January 23, 2012 to file her brief.

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These subsequent proceedings have been ascertained by the Court from the public records website of the Summit
County Clerk of Court.

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II. DISCUSSION
Defendants argue that the first, second, and third claims for relief (the Ҥ 1983
claims”) must be dismissed for several reasons, first of which is lack of subject matter
jurisdiction, which is always a threshold determination. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83 (1998) (there is no doctrine of “hypothetical jurisdiction” that enables a court
to resolve contested questions of law when its jurisdiction is in doubt). In particular, Defendants
assert that under Heck v. Humphrey, 512 U.S. 477 (1994), there is no cognizable § 1983 claim
and, therefore, no subject matter jurisdiction. Defendants also argue that the § 1983 claims
should be dismissed for failure to join an indispensible party, namely, the Barberton Municipal
Court. Finally, they assert that the § 1983 claims should be dismissed because Plaintiff is simply
wrong that a law enforcement officer cannot serve the role of a deputy clerk to acknowledge
criminal complaints and affidavits.6 Because the Court has determined, as discussed below, that
it lacks subject matter jurisdiction, it need not address Defendants other arguments.
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may
involve a facial attack or a factual attack. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th
Cir. 2005). “When a Rule 12(b)(1) motion attacks the factual basis for jurisdiction, the district
court must weigh the evidence and the plaintiff has the burden of proving that the court has
jurisdiction over the subject matter.” Id. (citing DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th
Cir. 2004)). A factual attack “is not a challenge to the sufficiency of the pleading’s allegations,
but a challenge to the factual existence of subject matter jurisdiction.” United States v. Ritchie,
15 F.3d 592, 598 (6th Cir. 1994). “On such a motion, no presumptive truthfulness applies to the

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The three arguments raised in Defendants’ motion are directed explicitly to the first, second, and third claims for
relief. Without making any specific supporting argument, Defendants also assert in conclusory fashion that the
fourth and fifth claims for relief, which are state law claims, should be dismissed.

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factual allegations, see Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.
1990), and the court is free to weigh the evidence and satisfy itself as to the existence of its
power to hear the case.” Id.
Plaintiff’s § 1983 claims challenge what she styles as “the core procedural
questions,” that is, three allegedly unconstitutional practices of the Barberton Municipal Court:
(1) so-called “bare bones” complaints which allege a crime only in statutory terms, without any
supporting facts suggesting that the accused committed the crime; (2) warrants issued on
complaints sworn to by one law enforcement officer before another law enforcement officer
acting as a deputy clerk; and (3) failure to have probable cause determined by a neutral and
detached magistrate in a reasonably prompt manner. Plaintiff claims she is not challenging either
her conviction or her sentence, but only these core procedural matters. She seeks not only
monetary damages for the alleged constitutional violations, but also declaratory and injunctive
relief aimed at stopping these procedures in the future.
In Heck v. Humphrey, 512 U.S. 477 (1994),7 the Court ruled: “[W]hen a state
prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it
would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction
or sentence has already been invalidated.” Id. at 487. Of course, Plaintiff cannot demonstrate that
her conviction or sentence has been invalidated because her criminal appeal is currently pending

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In Heck, the petitioner was convicted in state court of involuntary manslaughter and was serving a 15-year prison
sentence. While the appeal from his conviction was pending, he brought a pro se § 1983 action against two county
prosecutors and an investigator with the state police alleging that they had “engaged in an ‘unlawful, unreasonable,
and arbitrary investigation’ leading to petitioner’s arrest; ‘knowingly destroyed’ evidence ‘which was exculpatory in
nature and could have proved [petitioner’s] innocence’; and caused ‘an illegal and unlawful voice identification
procedure’ to be used at petitioner’s trial.” Heck, 512 U.S. at 479. The complaint sought monetary damages, but
neither injunctive relief nor release from custody.

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before the Ohio Supreme Court. For purposes of the Heck analysis, that fact is not relevant if this
Court determines that a judgment in her favor on any or all of her three core procedural claims
would not necessarily imply the invalidity of her conviction or sentence.
Although Plaintiff claims not to be challenging either her conviction or sentence,
the Court nonetheless concludes that Heck is applicable. As pointed out in Schilling v. White, 58
F.3d 1081 (6th Cir. 1995), the Court in Heck “examined the common law of tort liability and
concluded that proof of the illegality of a conviction is a necessary element of the § 1983 cause
of action.” Id. at 1086. “Unless that conviction has been reversed, there has been no injury of
constitutional proportions, and thus no § 1983 suit may exist.” Id.
Plaintiff pled no contest to the charge of burglary after the state trial court denied
her motion to suppress the arrest and dismiss the indictment on the very same grounds that she
raises here as her “core procedural questions.” (See Doc. No. 44-2 at 14-17.) Although the trial
court actually agreed with Plaintiff that the warrant for her arrest was not properly issued, it
concluded (1) that this would not bar further prosecution because an illegal arrest, without more,
has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction;
and (2) that Hobbs’s sole remedy in the criminal context was the exclusionary rule and, since no
evidence had been obtained as a result of the improperly issued arrest warrant, there was no
evidence to exclude. The trial court further concluded that “the invalid arrest warrant, in all
likelihood, amount[ed] to harmless error.” (Doc. No. 14-4.) These very conclusions, as well as
the trial court’s refusal to grant dismissal of the indictment are currently on appeal before the
Ohio Supreme Court, as are Plaintiff’s challenges to the procedures used to acknowledge
criminal complaints in the Barberton Municipal Court.

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This Court concludes that, if it were to proceed with this case and ultimately
determine that the procedures challenged by Plaintiff do violate the constitution, that judgment
would implicate the validity of Plaintiff’s conviction for burglary. Therefore, Heck applies. Since
Plaintiff cannot show that her conviction or sentence has been invalidated, there is no cognizable
§ 1983 cause of action.
Another very important fact of this case makes Heck applicable. When a
defendant pleads guilty (or no contest as in this case), a Fourth Amendment challenge “is not
cognizable under the rule of Heck [...].” Martin v. Girard, No. 98-1215, 2000 WL 658326, at *2
(6th Cir. May 12, 2000). This is so because “[a] finding of a Fourth Amendment violation
concerning the [defendants’] arrests would necessarily imply the invalidity of their convictions;
thus, their unlawful arrest claims are not cognizable under § 1983 because their convictions have
not been reversed, expunged, or invalidated by any court.” Id. (citing Heck, 512 U.S. at 486-86;
Schilling, 58 F.3d at 1086 (Fourth Amendment claim precluded by subsequent conviction)).
Further, “[i]n the event that Heck cannot be applied because of the short sentences
and fines arising from the [defendants’] eventual guilty-plea convictions [...] then--in the
alternative--the [defendants] are precluded from seeking damages by their guilty pleas, which
have a res judicata effect.” Id. (citing Walker v. Schaeffer, 854 F .2d 138, 142-43 (6th Cir. 1988)
(nolo contendere pleas estopped plaintiffs from asserting lack of probable cause in their suit
claiming false arrest and imprisonment)). The same rule applies to any attempt to seek injunctive
or equitable relief because “[a] favorable ruling on [the request] for declaratory and injunctive

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relief would necessarily imply that [their] convictions [...] were invalid.” McDonald v.
Tennessee, 79 F. App’x 793, 795 (6th Cir. 2003).8
III. CONCLUSION
For the reasons discussed herein, Defendants’ motion to dismiss for lack of
subject matter jurisdiction (Doc. No. 40) is GRANTED. Because there is lack of subject matter
jurisdiction, the Court need not address any of Defendants’ other arguments.

IT IS SO ORDERED.

Dated: February 1, 2012
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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In addition, the Court notes that, even if there were a cognizable § 1983 claim, abstention and staying the
proceedings would be required under the teachings of Younger v. Harris, 401 U.S. 37 (1971). Plaintiff’s assertions
before this Court are the very same as those she is raising before the Ohio Supreme Court. Under Younger, this
Court cannot interfere with appeal proceedings pending in a state court, nor can it presume that the state court will
fail to protect Plaintiff’s federal constitutional rights. It would be completely inappropriate to allow Plaintiff an endrun around the pending state proceedings by ruling on the merits of her claim that the procedures leading to her
arrest and detention were unconstitutional and, if so, warranted an award of damages. Nor should this Court
determine that injunctive or declaratory relief should be awarded.

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