Foster v. State of Ohio et al

Filing 12

REPORT AND RECOMMENDATION - IT IS THEREFORE RECOMMENDED THAT: (1) Plaintiff's motion for "relief necessity presentation" under "Rule 60(b)(6)" (Doc. 9 ) and motion for "Rule 60 Change In Law, Relief Request" (Doc. 11 ) be DENIED; and (2) Plaintiff's motion to "guard against impeding" (Doc. 10 ) be DENIED. Objections to R&R due by 1/24/2022. Signed by Magistrate Judge Karen L. Litkovitz on 1/8/2022. (kh) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:14-cv-00668-DRC-KLL Doc #: 12 Filed: 01/10/22 Page: 1 of 7 PAGEID #: 62

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CHRISTOPHER FOSTER,
Plaintiff,
vs.
STATE OF OHIO, et al.,
Defendants.

Case No. 1:14-cv-668
Cole, J.
Litkovitz, M.J.
REPORT AND
RECOMMENDATION

Plaintiff, an inmate at the Toledo Correctional Institution, filed this civil rights action in
2014 against defendants the State of Ohio; Hamilton County, Ohio Judge Charles J. Kubicki;
Hamilton County, Ohio Prosecuting Attorney Kevin Hardman; Hamilton County, Ohio Public
Defender Christine Y. Jones; Cincinnati, Ohio Police Officer Charles Knapp; and Hamilton
County, Ohio Deputy Clerk Patricia M. Clancey. (Doc. 3). The complaint alleged that
defendant Jones “did a malicious job of ineffectiveness,” allegedly refusing to raise plain errors
in his defense; that “Judge Kubicki Jr. used multiple unreasonable unequivocal statements on
trial court records delaying justice”; that Officer Knapp “maliciously shot Christopher Foster 16
times at point blank, and arrested the plaintiff acquiring arrest warrants that requested the capture
of some ‘Charles Foster’” 1; and that defendant Clancey initialed the arrest warrants against
municipal policy. (Id. at PAGEID 23). Plaintiff further alleged that all defendants conspired to
“(1) induce panic/emotional distress, (2) false arrest/imprisonment, (3) malice behavior, (4)
attempted murder, (5) cruel [and] unusual punishment, (6) unreasonable delay, (7) unlawful

Upon review of the Hamilton County Clerk of Courts webpage, it appears that plaintiff was arrested by officer
Knapp after the two exchanged gun fire. Plaintiff was subsequently convicted of felonious assault and having
weapons while under disability in connection with the incident. In his complaint, plaintiff challenged the validity of
his arrest warrants based on the warrants listing “Charles Foster,” instead of “Christopher Foster.” (See Doc. 1,
Complaint p. 5). However, the affidavits and complaints issued in conjunction with the arrest warrants correctly
specified that the offending behavior was committed by Christopher Foster. Found at www.courtclerk.org under
Case No. B 1105686.

1

Case: 1:14-cv-00668-DRC-KLL Doc #: 12 Filed: 01/10/22 Page: 2 of 7 PAGEID #: 63

restraint.” (Id.).
On August 22, 2014, the undersigned issued a Report recommending that plaintiff’s
complaint be dismissed with prejudice for failure to state a claim upon which relief may be
granted. (Doc. 4). Plaintiff failed to file any objections to the Report and Recommendation,
and on November 3, 2014, the district judge adopted the Report and Recommendation and
dismissed the complaint with prejudice. (Doc. 7).
This matter is now before the Court on plaintiff’s motions for “relief necessity
presentation” under “Rule 60(b)(6)” (Doc. 9), to “guard against impeding” (Doc. 10), and for
“Rule 60 Change In Law, Relief Request” (Doc. 11).
Plaintiff’s motions for “relief necessity presentation” under “Rule 60(b)(6)” (Doc. 9)
and for “Rule 60 Change In Law, Relief Request” (Doc. 11) seek relief from the dismissal of
his complaint based on the new rule of law set forth in Torres v. Madrid, 141 S.Ct. 989 (2021).
Plaintiff alleges that the Torres decision “made it clear that officer Knapp shooting the plaintiff
[16 times] actually was a seizure.” (Doc. 9 at PAGEID 41). Plaintiff contends that prior to
Torres, his claim was not cognizable because his encounter with officer Knapp was not
considered a “seizure” under existing law because plaintiff “did not stop walking away when
officer Knapp illegally order me to stop. . . .” (Doc. 11 at PAGEID 56). Plaintiff requests the
Court “to serve the defendant(s) on the basis of only my official capacity claims relating to
officer Knapp shooting me, and striking me with [16 bullets] as to a matter of resisting arrest or
seizure that was unlawful.” (Id. at PAGEID 58).
Rule 60(b) provides, in relevant part, for relief from a judgment “for the following
reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered
2

Case: 1:14-cv-00668-DRC-KLL Doc #: 12 Filed: 01/10/22 Page: 3 of 7 PAGEID #: 64

evidence that, with reasonable diligence, could not have been discovered in time to move for a
new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other
reason that justifies relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6), the catchall provision,
applies “only in exceptional or extraordinary circumstances which are not addressed by the
first five numbered clauses of the Rule.” Hopper v. Euclid Manor Nursing Home, 867 F.2d
291, 294 (6th Cir. 1989). See also E. Brooks Books, Inc. v. City of Memphis, 633 F.3d 459,
465 (6th Cir. 2011). “It is well established that a change in decisional law is usually not, by
itself, an ‘extraordinary circumstance’ meriting Rule 60(b)(6) relief.” Blue Diamond Coal Co.
v. Trustees of UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir. 2001) (citing Agostini
v. Felton, 521 U.S. 203, 239 (1997) (“Intervening developments in the law by themselves
rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6). . . .”)).
This is so even where a law is invalidated on constitutional grounds. Id.
This Court recently addressed a nearly identical motion filed by plaintiff in a
companion case he filed against the same defendants and raising the same claims. See Foster
v. Hamilton Cty., Case No. 1:14-cv-642 (S.D. Ohio). 2 The Court denied plaintiff’s motion,
reasoning as follows:
In this case, the Court need not reach the question of whether the case before it
presents extraordinary circumstances. This is because there is no basis to
reconsider the merits of Plaintiff’s claims based on the legal conclusions of Torres
v. Madrid, 141 S.Ct. at 989.
In Case No. 1:14-cv-642, plaintiff named Hamilton County, Ohio as a defendant, whereas in this case he named
the State of Ohio as a defendant. All of the other named defendants are the same.

2

3

Case: 1:14-cv-00668-DRC-KLL Doc #: 12 Filed: 01/10/22 Page: 4 of 7 PAGEID #: 65

The Supreme Court’s decision in Torres clarifies a Fourth Amendment issue. Id.
Specifically, the case determines what constitutes a “seizure.” Id. According to
the Court in Torres, a seizure is the application of force “with the intent to restrain.”
Id., 141 S.Ct. at 1003 (emphasis added). It is not an application of force that
necessarily stops a fleeing person in her tracks or leads directly to an arrest. Id.
Torres thus makes clear that a bullet fired by law enforcement with the intent to
restrain is a seizure if it hits its target—even if the target continues fleeing. Id.
The Torres decision changes nothing about Plaintiff’s case. First, the Magistrate
Judge did not construe the complaint to raise a Fourth Amendment seizure issue.
(Doc. 4). If Plaintiff had intended to do so, he should have objected to the R&R
on that basis. Even so, based on Plaintiff’s version of the facts, there seems little
doubt about whether and when a seizure took place. Plaintiff was arrested
immediately after he exchanged gunfire with the police. (Docs. 3 and 4). Such
would constitute a “seizure” both before and after Torres. In other words, Torres
did not change the relevant law in a way that benefits Plaintiff. Because the
holding of Torres does not bear on Plaintiff’s claims, there is no need to further
analyze Plaintiff’s presentation for relief.
Foster, Case No. 1:14-cv-642 (S.D. Ohio Dec. 27, 2021) (Doc. 11 at PAGEID 68-69).
For the same reasons, plaintiff’s motions for “relief necessity presentation” under “Rule
60(b)(6)” (Doc. 9) and for “Rule 60 Change In Law, Relief Request” (Doc. 11) should be denied.
Moreover, plaintiff seeks reopening of “only my official capacity claims relating to officer
Knapp shooting me. . . .” (Doc. 11 at PAGEID 58). However, plaintiff has failed to allege that
his rights were violated by a custom or policy of the City of Cincinnati as would be required to
hold defendant Knapp liable in an official capacity. See Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 690 (1978). Granting plaintiff relief from judgment would therefore be futile as his official
capacity claim would be subject to dismissal for failure to state a claim. Therefore, these
motions should be denied.
Plaintiff’s motion to “guard against impeding” (Doc. 10) should also be denied. Plaintiff
alleges that officials at the Toledo Correctional Institution, where he is currently incarcerated, are
4

Case: 1:14-cv-00668-DRC-KLL Doc #: 12 Filed: 01/10/22 Page: 5 of 7 PAGEID #: 66

tampering with and opening his legal mail. He alleges that the prison implemented a new policy
whereby his legal mail is being opened outside of his presence. (Doc. 10 at PAGEID 50,
Exhibit 1). He seeks a Court order enjoining the prison officials’ actions.
This Court does not have personal jurisdiction over the Toledo Correctional Institution
officials responsible for plaintiff’s legal mail because they are not parties to this action. The
Court “only has jurisdiction over the named defendants and does not have authority to issue an
injunction against non-parties to this action.” Shavers v. Bergh, No. 2:07-cv-171, 2012 WL
1377169, at *2 (W.D. Mich. Mar. 29, 2012) (Report and Recommendation), adopted, 2012 WL
1377103 (W.D. Mich, Apr. 19, 2012)). See also Laster v. Pramstaller, Nos. 06-13508 & 0571140, 2009 WL 497407, at *2 (E.D. Mich. Feb. 24, 2009) (Report and Recommendation),
adopted, 2009 WL 790479 (E.D. Mich. Mar. 20, 2009) (finding the court had no power to
adjudicate plaintiff’s motion for injunctive relief because the court had no personal jurisdiction
over non-defendants). Cf. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110
(1969) (“It is elementary that one is not bound by a judgment in personam resulting from
litigation in which he is not designated as a party. The consistent constitutional rule has been
that a court has no power to adjudicate a personal claim or obligation unless it has jurisdiction
over the person of the defendant.”) (internal citations omitted). Therefore, the Court lacks
personal jurisdiction over the Toledo Correctional Institution officials, and plaintiff’s motion
“guard against impeding” (Doc. 10) should be denied.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff’s motion for “relief necessity presentation” under “Rule 60(b)(6)” (Doc. 9)
and motion for “Rule 60 Change In Law, Relief Request” (Doc. 11) be DENIED.
5

Case: 1:14-cv-00668-DRC-KLL Doc #: 12 Filed: 01/10/22 Page: 6 of 7 PAGEID #: 67

2. Plaintiff’s motion to “guard against impeding” (Doc. 10) be DENIED.

Date: 1/8/2022

Karen L. Litkovitz
United States Magistrate Judge

6

Case: 1:14-cv-00668-DRC-KLL Doc #: 12 Filed: 01/10/22 Page: 7 of 7 PAGEID #: 68

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CHRISTOPHER FOSTER,
Plaintiff,

Case No. 1:14-cv-668
Cole, J.
Litkovitz, M.J.

vs
STATE OF OHIO, et al.,
Defendants.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after
being served with a copy thereof. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN (14) DAYS
after being served with a copy of those objections. Failure to make objections in accordance
with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985);
United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

7