Rodriguez et al v. Ohio Bureau of Criminal Investigation et al

Filing 19

REPORT AND RECOMMENDATION it is recommended that motion for relief from judgment, Doc. No. 18 , be denied. Objections to R&R due by 7/5/2013. Signed by Magistrate Judge Norah McCann King on 6/17/13. (rew)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOSE A. RODRIGUEZ, et al.,
Plaintiffs,
Case No. 2:13-cv-103
Judge Graham
Magistrate Judge King

v.
OHIO BUREAU OF CRIMINAL
INVESTIGATION,
Defendant.

REPORT AND RECOMMENDATION
Plaintiffs, state inmates, filed this civil rights action against
an agency of the State of Ohio, the Wood County Sheriff’s Office and
unnamed individuals employed by those two entities.
dismissing

the

case

pursuant

to

entered on February 25, 2013.
now

before

the

Court

on

28

U.S.C.

§§

1915(e),

Judgment, Doc. No. 17.

plaintiffs’

motion

Final judgment

for

1915A

was

This matter is

relief

from

that

judgment, Doc. No. 18 (“Motion for Relief from Judgment”).
Plaintiffs

alleged

that

the

defendant

agencies,

acting

in

conjunction with the United States Drug Enforcement Administration,
conducted

an

investigation

charges against plaintiffs.

of

plaintiffs,

resulting

in

criminal

Complaint, Doc. No. 4, ¶¶ 15, 17.

The

investigation involved audio or video recordings, id. ¶ 17, which were
not translated or authenticated, id. ¶¶ 19-20, and which were edited
or withheld from plaintiffs.

Id. ¶ 21.

These recordings were alleged

to have formed “the foundation for the criminal proceedings” against
plaintiffs.

Id. ¶¶ 21-22.

The Complaint also alleged that a traffic

1

stop

of

plaintiffs,

the

search

of

plaintiffs’

vehicle

and

the

subsequent arrest and prosecution of plaintiffs in 2007 were made
“without probable cause.”

Id. ¶¶ 24, 32.

Plaintiffs asserted claims

of denial of due process and other, unspecified constitutional rights
under 42 U.S.C. §§ 1983, 1985, 1988, as well as a claim under state
law.

The Complaint sought monetary damages and an order requiring the

production

to

plaintiffs

of

complete

and

true

copies

of

the

recordings.
The Motion for Relief from Judgment contends that the Court erred
in concluding that the claims against Wood County and its employees
could not proceed unless and until the Ohio Court of Claims made “a
determination of immunity” as to those defendants.
from

Judgment,

previous

p.

judgment

alternative,

2.

“Therefore,

and

permit

permit

the

this

court

matter

this

complaint

Motion for Relief

to

proceed,

amended

to

to

be

must

overrule
or

omit

in
the

its
the
Ohio

Bureau of Criminal Investigation and permit the matter to proceed, as
to the Wood County defendants.”

Id., p. 6. Plaintiffs have mis-

apprehended the bases for the dismissal of the action and of the
claims asserted against the Wood County defendants.
The original Report and Recommendation, Doc. No. 10, recommended
dismissal of the action on a variety of grounds.

However, this Court

has never held that state law claims cannot proceed against the Wood
County defendants pending resolution of the issue of immunity by the
Ohio Court of Claims.

Rather, the Court applied that reasoning to

only the employees of the state agency named in the Complaint, the
Ohio Bureau of Criminal Investigation:

2

Plaintiffs also assert state law claims.
However,
state employees may not be sued on state law claims unless
and until the Ohio Court of Claims has determined that the
employees are not entitled to immunity under Ohio law,
O.R.C. §9.86.
Haynes v. Marshall, 887 F.2d 700, 704 (6th
Cir. 1989); Grooms v. Marshall, 142 F.Supp. 2d 927, 932
(S.D. Ohio 2001). Plaintiffs’ state law claims against the
employees of the state agency cannot proceed.
Report and Recommendation, p. 4 (emphasis added).

The Court

nevertheless concluded that all claims, including the state law claims
against the Wood County defendants, could not proceed for a variety of
reasons.

See generally, id.;

Order, Doc. No. 16.

In short,

plaintiffs’ Motion for Relief from Judgment is based on a flawed
understanding of the bases for the dismissal of all the claims
asserted in this action.

The Court remains convinced that the action

was properly dismissed.
It is therefore RECOMMENDED that the Motion for Relief from
Judgment, Doc. No. 18, be denied.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections must

be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.

3

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters,

638 F.2d 947 (6th Cir. 1981).

s/ Norah McCann King___
Norah McCann King
United States Magistrate Judge
June 17, 2013

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