Covert v. Batsch et al

Filing 5

REPORT AND RECOMMENDATIONS: 1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). 2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). Objections to R&R due by 12/26/2017. Signed by Magistrate Judge Stephanie K. Bowman on 12/12/2017. (bjc)(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
GLENN COVERT,
Plaintiff,
vs
STEVEN BATSCH, et al.,
Defendants.

Case No. 1:17-cv-653
Barrett, J.
Bowman, M.J.
REPORT AND
RECOMMENDATION

Plaintiff, an inmate at the Chillicothe Correctional Institution, brings this pro se prisoner
civil rights action against defendants Steven Batsch, Michael Wilson, Rachel Short, and “John
Doe defendants not yet discovered.” (Doc. 1-1, Complaint at PageID 4). By separate Order,
plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This
matter is before the Court for a sua sponte review of the complaint to determine whether the
complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state
a claim upon which relief may be granted or seeks monetary relief from a defendant who is
immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. §
1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
In enacting the original in forma pauperis statute, Congress recognized that a “litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton v.
Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma
pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28
U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as frivolous when

the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v.
Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir.
1990). An action has no arguable legal basis when the defendant is immune from suit or when
plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at
327. An action has no arguable factual basis when the allegations are delusional or rise to the
level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199.
The Court need not accept as true factual allegations that are “fantastic or delusional” in reviewing
a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke,
490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A
complaint filed by a pro se plaintiff must be “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token,
however, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
(“dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a
claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all

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well-pleaded factual allegations as true, but need not “accept as true a legal conclusion couched
as a factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265,
286 (1986)). Although a complaint need not contain “detailed factual allegations,” it must
provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders “naked assertion[s]”
devoid of “further factual enhancement.” Id. at 557. The complaint must “give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson, 551 U.S. at
93 (citations omitted).
Plaintiff brings this action against defendants under 42 U.S.C. §§ 1983, 1985, and 1986.
(See Doc. 1, Complaint at PageID 1). According to plaintiff, he was subjected to an illegal
search and seizure in violation of his constitutional rights. Plaintiff alleges that defendants
Officer Steven Batsch, Officer A. Brown, and informant Michael Wilson provided false
information in an affidavit to obtain a search warrant in October of 2012. (See Doc. 1-1,
Complaint at PageID 5–6). Plaintiff further alleges that the resulting search resulted in the loss
of real property in the amount of $20,000 in value. (Id. at PageID 7). Against defendant
Rachel Short, plaintiff alleges “Rachel Short being in a morbid state of mind when interviewed
by [Batsch] on 8/20/2013 and knowing the wanton disregard displayed by [Batch and Brown]
related to the illegal search /seizure, and arrest of your plaintiff, made a conscious decision to act
collectively in association with defendants [Batch, Brown, and Wilson].” (Id.). According to
plaintiff “it is the use of defendants [Brown, Wilson, and Short]’s false statement(s) in

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conjunction with defendant [Batsch] that resulted in him being subjected to an illegal search.”
(Id.).
For relief, plaintiff seeks a declaratory judgment and monetary damages. (Id. at PageID
9).
Plaintiff’s complaint is subject to dismissal at the screening stage. The complaint is
governed by Ohio’s two-year statute of limitations applicable to personal injury claims. See, e.g.,
Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (holding that the “appropriate statute of
limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio is contained in Ohio Rev. Code
§ 2305.10, which requires that actions for bodily injury be filed within two years after their
accrual”); see also Wallace, 549 U.S. at 387 (and Supreme Court cases cited therein) (holding that
the statute of limitations governing § 1983 actions “is that which the State provides for
personal-injury torts”); Zundel v. Holder, 687 F.3d 271, 281 (6th Cir. 2012) (stating that the
“settled practice . . . to adopt a local time limitation as federal law if it is not inconsistent with
federal law or policy to do so” is applicable “to § 1983 actions and to Bivens actions because
neither the Federal Constitution nor the § 1983 statute provides timeliness rules governing implied
damages”). Although the statute-of-limitations is an affirmative defense, when it appears clear on
initial screening of the complaint that the action is time-barred, the complaint may be dismissed at
the screening stage for failure to state a claim upon which relief may be granted. See Jones v.
Bock, 549 U.S. 199, 215 (2007). Cf. Fraley v. Ohio Gallia Cnty., No. 97-3564, 1998 WL 789385,
at *1-2 (6th Cir. Oct. 30, 1998) (holding that the district court “properly dismissed” the pro se
plaintiff’s § 1983 civil rights claims under 28 U.S.C. § 1915(e)(2)(B) because the complaint was
filed years after Ohio’s two-year statute of limitations had expired); Anson v. Corr. Corp. Of

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America, No. 4:12cv357, 2012 WL 2862882, at *2-3 (N.D. Ohio July 11, 2012) (in sua sponte
dismissing complaint under 28 U.S.C. § 1915(e), the court reasoned in part that the plaintiff’s
Bivens claims asserted “six years after the events upon which they are based occurred” were
time-barred under Ohio’s two-year statute of limitations for bodily injury).
“[T]he accrual date of a § 1983 cause of action is a question of federal law that is not
resolved by reference to state law.” Wallace, 547 U.S. at 388 (emphasis in original). Under
federal law, a cause of action accrues for statute of limitations purposes “when plaintiff[] knew or
should have known of the injury which forms the basis of [his] claims.” Ruff v. Runyon, 258 F.3d
498, 500 (6th Cir. 2001). The “inquiry focuses on the harm incurred, rather than the plaintiff’s
knowledge of the underlying facts which gave rise to the harm.” Id. at 501 (quoting Friedman v.
Estate of Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)). The statute of limitations commences to
run when the plaintiff knows or, in the exercise of due diligence, has reason to know of the injury
which is the basis for his cause of action. Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984); see
also Ruff, 258 F.3d at 501.
Courts have held that causes of action based on an alleged illegal search and seizure accrue
on the date that the search and seizure occurred. See Harper, 293 F. App’x at 392 n.1 ; see also
Geary v. Brantley, No. 4:12CV-P33-M, 2012 WL 3598286, at *4 (W.D. Ky. Aug. 17, 2012);
Williams v. Monroe Cnty., Kentucky, No. 1:10CV-P123-M, 2010 WL 4006370, at *1-2 (W.D. Ky.
Oct. 8, 2010). Cf. Thomas v. McElroy, 463 F. App’x 591, 592 (7th Cir. 2012) (“A claim asserting
that a search violated the Fourth Amendment accrues–and the limitations period begins to run–as
soon as the plaintiff knows, or should know, about the search and the facts making it unlawful.”);
Villegas v. Galloway, 458 F. App’x 334, 338 (5th Cir. 2012) (holding that plaintiff’s claims arising

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out an allegedly unlawful search and seizure accrued in April 2003, when the search warrant was
executed).
Here, it is clear from the face of the complaint that plaintiff’s claims are time-barred. As
noted above, plaintiff claims defendants provided false information to secure a search warrant in
October of 2012 1 and did not commence this action until September 28, 2017, nearly five years
later. Therefore, plaintiff’s claims are subject to dismissal at the screening stage.
To the extent that plaintiff seeks to bring claims under §§ 1985 and 1986, his claims are
subject to dismissal. As an initial matter, plaintiff’s § 1985 claim is also time-barred. See
Dotson v. Lane, 360 F. App’x 617, 620 at n.2 (6th Cir. 2010) (“A two-year statute of limitations
applies to section 1985 claims brought in the state of Ohio.”). In any event, plaintiff’s allegations
are insufficient to state an actionable claim under 42 U.S.C. § 1985. To plead a cause of action
under § 1985, plaintiff must allege that the defendants conspired together for the purpose of
depriving plaintiff of the equal protection of the laws; that the defendants committed an act in
furtherance of the conspiracy that caused injury to plaintiff; and that the conspiracy was motivated
by a racial, or other class-based, discriminatory animus. See Bruggeman v. Paxton, 15 F. App’x
202, 205 (6th Cir. 2001); see also Vakilian v. Shaw, 335 F.3d 509, 518 (6th Cir. 2003) (and cases
cited therein). “The complaint thus must ‘allege both a conspiracy and some class-based
discriminatory animus behind the conspirators’ action.’” Pahssen v. Merrill Cmty. Sch. Dist., 668
F.3d 356, 367-68 (6th Cir. 2012) (quoting Newell v. Brown, 981 F.2d 880, 886 (6th Cir. 1992), in
turn quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). In addition, conspiracy claims
must be pled with specificity; “vague and conclusory allegations unsupported by material facts

1

As an attachment to the complaint, plaintiff includes the October 8, 2012 and October 22, 2012 affidavits and search
warrants that are the subject of the complaint. (See Doc. 1-1, Complaint at PageID 281–88).

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will not be sufficient to state such a claim.” Id. at 368 (quoting Gutierrez v. Lynch, 826 F.2d
1534, 1538-39 (6th Cir. 1987)). Here, plaintiff has not pleaded that any of the defendants were
motivated by a racial or class-based discriminatory animus. Moreover, plaintiff’s allegations are
insufficient to support any inference that the defendants were involved in a conspiracy, or in other
words, that the defendants “shared a common discriminatory objective.” See id. (citing Hinkle v.
City of Clarksburg, W.Va., 81 F.3d 416, 421 (4th Cir. 1996)). In the absence of any factual
allegations to support his vague and conclusory conspiracy claim, plaintiff’s § 1985 complaint
fails to state a claim upon which relief may be granted.
With respect to plaintiff’s claims brought pursuant to section 1986, that section creates a
cause of action for knowing failure to prevent a § 1985 conspiracy. However, because plaintiff
failed to state a claim under §1985, he has no cause of action under § 1986. See Lorenzi v.
Lorenzi, 44 F.App’x 683, 685 (6th Cir. 2002) (citing Bradley v. City of Pontiac, 906 F.2d 220, 227
(6th Cir. 1990) (plaintiff with no cause of action under § 1985 has no cause of action under §
1986)). Accordingly, plaintiff’s claims brought under §§ 1985 and 1986 should also be
dismissed.
Accordingly, in sum, the complaint should be dismissed for failure to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).

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IT IS THEREFORE RECOMMENDED THAT:
1. The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1).
2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. See McGore v. Wrigglesworth,
114 F.3d 601 (6th Cir. 1997).

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GLENN COVERT,
Plaintiff,

Case No. 1:17-cv-653
Barrett, J.
Bowman, M.J.

vs
STEVEN BATSCH, 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 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).

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