Foster v. State of Ohio et al

Filing 13

ORDER adopting 12 Report and Recommendation and denying 9 Foster's Motion for Relief Necessity Presentation under Rule 60(b)(6), 11 Motion for Rule 60 Change In Law, Relief Request, and 10 Motion to Guard Against Impeding. Signed by Judge Douglas R. Cole on 3/21/22. (sct)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTOPHER FOSTER,
Plaintiff,
Case No. 1:14-cv-668
JUDGE DOUGLAS R. COLE
Magistrate Judge Litkovitz

v.
STATE OF OHIO, et al.,
Defendants.

ORDER
This cause comes before the Court on the Magistrate Judge’s January 10, 2022,
Report and Recommendation (“R&R”) (Doc. 12). The Magistrate Judge recommends
the Court deny Plaintiff Christopher Foster’s Motion for “Relief Necessity
Presentation” under “Rule 60(b)(6)” (Doc. 9), his Motion for “Rule 60 Change In Law,
Relief Request” (Doc. 11), and his Motion to “Guard Against Impeding” (Doc. 10).
For the reasons stated more fully below, the Court ADOPTS the R&R (Doc.
12) and, consequently, DENIES Foster’s Motion for “Relief Necessity Presentation”
under “Rule 60(b)(6)” (Doc. 9), Motion for “Rule 60 Change In Law, Relief Request”
(Doc. 11), and Motion to “Guard Against Impeding” (Doc. 10).
To start, the R&R advised all parties that failing to object within the 14 days
specified by the R&R could result in forfeiture of rights on appeal, which includes the
right to District Court review. (See Doc. 12, #681). See also Thomas v. Arn, 474 U.S.
140, 152 (1985) (“There is no indication that Congress, in enacting § 636(b)(1)(C),

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intended to require a district judge to review a magistrate’s report to which no
objections are filed.”); Berkshire v. Beauvais, 928 F.3d 520, 530 (6th Cir. 2019) (noting
“fail[ure] to file an objection to the magistrate judge’s R&R … is forfeiture”); 28 U.S.C.
§ 636(b)(1)(C). Accordingly, any party wishing to object to the R&R needed to do so
by January 24, 2022. The time for filing objections has since passed, and no party has
objected.
That being said, although no party has objected, the advisory committee notes
to Federal Rule of Civil Procedure 72(b) suggest that the Court still must “satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.” See also Jackson v. DEA, No. 1:21-cv-402, 2022 WL 60312, at *1
(S.D. Ohio Jan. 6, 2022) (reviewing for clear error absent an objection to a Magistrate
Judge’s R&R); Wilkins v. Mahlman, No. 1:21-cv-312, 2022 WL 44689, at *1 (S.D. Ohio
Jan. 5, 2022) (same); Brunner v. Bell, No. 1:19-cv-575, 2021 WL 4480484, at *1 (S.D.
Ohio Sept. 30, 2021) (same).
The Court has reviewed the R&R (Doc. 12) and determined that it does not
contain “clear error on [its] face.” Fed. R. Civ. P. 72(b) (advisory committee notes).
Foster’s Motion for “Relief necessity presentation” under “Rule 60(b)(6)” (Doc.
9) and his Motion for “Rule 60 Change in Law, Relief Request” (Doc. 11) (collectively
“Rule 60 Motions”) both seek relief from the dismissal of his Complaint—specifically,
the dismissal of his claims against Officer Charles Knapp. Foster’s claims against
Knapp relate to an alleged incident in which Knapp “maliciously shot … Foster 16
times at point blank” at the time of Foster’s arrest. (R&R, Doc. 12, #62 (quoting

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Compl., Doc. 3, #23)). The Court dismissed those claims, along with the rest of
Foster’s Complaint, on November 3, 2014. (Doc. 7). In the two Rule 60 Motions, Foster
“seek[s] relief from the dismissal of his [C]omplaint based on the new rule of law set
forth in Torres v. Madrid, 141 S. Ct. 989 (2021).” (R&R, Doc. 12, #63). Although Foster
argues that “prior to Torres, his claim was not cognizable because his encounter with
Knapp was not considered a ‘seizure’ under existing law,” in the wake of Torres,
Foster now argues he has a cognizable 42 U.S.C. § 1983 claim against Knapp in his
official capacity for unlawful seizure. (Rule 60 Change in Law Mot., Doc. 11, #57–58).
The R&R correctly concludes that Foster’s request for relief from the dismissal
of his Complaint should be denied for four reasons. First, the R&R observes that “[i]t
is well established that a change in decisional law is usually not, by itself, an
‘extraordinary circumstance’ meriting Rule 60(b)(6) relief …. This is so even where a
law is invalidated on constitutional grounds.” (Doc. 12, #64 (citing Blue Diamond Coal
Co. v. Trs. of UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir. 2001))).
Rather, “courts have relied on an applicable change in decisional law, coupled with
some other special circumstance, in order to grant Rule 60(b)(6) relief.” Blue Diamond
Coal, 249 F.3d at 524 (emphasis added). In this case, however, Foster’s argument
relies entirely on the change in decisional law brought about by Torres to justify his
proposed relief. Because that justification is plainly insufficient under binding Sixth
Circuit precedent, the Court cannot grant his request.
Second, the R&R finds that Torres cannot provide Foster relief because, in
recommending that this case be dismissed in 2014, the Magistrate Judge did not

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construe Foster’s Complaint as raising a Fourth Amendment seizure claim. (R&R,
Doc. 12, #65). Had Foster disagreed with this construction, he could have (and should
have) objected to the Magistrate Judge’s recommendation when she issued it eight
years ago. (Id.). He failed to do so, and this Court adopted the Magistrate Judge’s
construction. (Order, Doc. 7, #39). Thus, because Foster’s Complaint effectively never
advanced an unlawful seizure claim in the first place, any change in law on that front
brought about by Torres is irrelevant.
Third, even if Foster’s Complaint had properly asserted an unlawful seizure
claim, the R&R correctly observes that “Torres [does] not change the relevant law in
a way that benefits [Foster].” (Doc. 12, #65). As the R&R explains, Foster “was
arrested immediately after he exchanged gunfire with police,” thus, the shooting in
question “would constitute a ‘seizure’ both before and after Torres.” (Id.).
Fourth, Foster’s Motion only seeks to reopen “official capacity claims relating
to officer Knapp shooting [him].” (Id. (quoting Rule 60 Change In Law Mot., Doc. 11,
#58) (emphasis added)). However, to assert an official capacity claim, Foster would
need to “allege that his rights were violated by a custom or policy of the City of
Cincinnati,” which he has failed to do. (Id.).
Seeing no clear error in the Magistrate Judge’s analysis, the Court adopts the
R&R’s recommendations with regard to the Rule 60 Motions and, accordingly,
DENIES Foster’s Motion for “Relief Necessity Presentation” under “Rule 60(b)(6)”
(Doc. 9) and his Motion for “Rule 60 Change In Law, Relief Request” (Doc. 11).

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The R&R also recommends that the Court deny Foster’s Motion to “guard
against impeding” (Doc. 10). There, Foster “alleges that officials at the Toledo
Correctional Institution, where he is currently incarcerated, are tampering with and
opening his legal mail” outside his presence. (R&R, Doc. 12, #65–66 (citing Mot. to
Guard Against Impeding, Doc. 10, #50)). Foster seeks a Court order enjoining the
prison officials’ actions. (Id.). The R&R recommends that that the Court deny Foster’s
Motion as Foster may not properly raise the manner in which prison officials handle
his legal mail as an issue in this case. (Id. at #66). The Court agrees with that
outcome, although for perhaps slightly different reasons than those set forth in the
R&R.
As the Sixth Circuit has explained, “[a] party moving for a preliminary
injunction must necessarily establish a relationship between the injury claimed in
the party’s motion and the conduct asserted in the complaint.” Colvin v. Caruso, 605
F.3d 282, 300 (6th Cir. 2010) (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
1994)). For example, in Taylor v. United States, the plaintiff requested an injunction
to prevent prison officials from opening his legal mail outside his presence and
removing legal papers from his possession. No. 1:10-cv-01195, 2019 WL 8440696, at
*1 (W.D. Tenn. Sept. 6, 2019), report and recommendation adopted 2020 WL 587650
(W.D. Tenn. Feb. 6, 2020). The Court denied the preliminary injunction under Colvin,
explaining that:
Plaintiff’s underlying claim in this case is based upon his contention
that improper withdrawals were made from his inmate trust fund to pay
restitution for his prior criminal conviction. On the other hand, as set
forth above, his request for injunctive relief is based upon prison
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officials’ alleged handling of legal mail and legal documents, a matter
unrelated to the underlying claim. If Plaintiff’s allegations concerning
prison officials’ interference with his legal correspondence and
documents are true, he may have separate potential claims regarding
such matters. However, Plaintiff may not address those potential and
unrelated claims in this pending action through a request for injunctive
relief.
Id. at *2.
In this case, Foster’s Complaint brought numerous § 1983 claims related to his
arrest and conviction,2 but none of his claims bear any apparent relation to the
manner in which Ohio’s prison administrators or employees control prisoners’ access
to legal mail. Accordingly, because the Court finds that Foster has failed to establish
the requisite “relationship between the injury claimed in [his] [M]otion and the
conduct asserted in [his] [C]omplaint,” the Court DENIES the relief requested in
Foster’s Motion to “guard against impeding” (Doc. 10).
Accordingly, for the reasons set forth above, the Court ADOPTS the R&R (Doc.
12) and, consequently, DENIES Foster’s Motion for “Relief Necessity Presentation”

Specifically, Foster’s Complaint alleged the following:
Plaintiff’s [C]omplaint alleges that his attorney, defendant Jones “did a
malicious job of ineffectiveness,” allegedly refusing to raise plain errors in his
defense. Plaintiff further alleges that “Judge Kubicki Jr. used multiple
unreasonable unequivocal statements on trial court records delaying justice.”
Plaintiff also claims 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.’” He claims that defendant
Clancey initialed the warrants against municipal policy. Finally, plaintiff
claims 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 restraint.”
(Aug. 22, 2014 R&R, Doc. 4, #28 (quoting Compl., Doc. 3, #23) (internal citations and footnotes
omitted)).
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under “Rule 60(b)(6)” (Doc. 9), Motion for “Rule 60 Change In Law, Relief Request”
(Doc. 11), and Motion to “Guard Against Impeding” (Doc. 10).
SO ORDERED.
March 21, 2022
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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