Great Elk Dancer for his Elk Nation v. Miller et al

Filing 17

REPORT AND RECOMMENDATIONS: It is RECOMMENDED that the Defendants Judge John T. Wallace, City of Logan, Police Chief Aaron Miller, Lt. Gregg Cluley, Officer Tony Byron, prosecutors Liana Fetherolf, William Archer, and Johah M. Savings, former Law Di rector Bob Lilly, and the Hocking County Probation Office and Employees be DISMISSED from this lawsuit. It is ordered that, 9 & 13 , Motions to Strike are denied but their motions for an extension of time to answer are granted. Defendants Irvine, Robertson, Mowery & Shaw are ORDERED to answer or otherwise respond to the Complaint by 9/13/2013. Objections to R&R due by 9/6/2013. Signed by Magistrate Judge Mark R. Abel on 8/19/13. (rew) Modified text on 8/19/2013 (er1).

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

Great Elk Dancer for his Elk Nation,
Plaintiff

:

Defendants

Judge Watson

:

City of Logan, et al.,

Civil Action 2:13-cv-0565

:

v.

:

Magistrate Judge Abel

:

Second Initial Screening Report and Recommendation
Plaintiff Great Elk brings this civil rights action under 42 U.S.C. §1983. On July 9,
2013, I filed a Report and Recommendation on Initial Screening under 28 U.S.C.
§1915(e)(2) that found the complaint failed to plead claims against any defendant except
Fire Chief Brian Roberton and, therefore, recommended that all defendants except
Robertson be dismissed from this lawsuit. Instead of filing objections to the report and
recommendation, plaintiff filed an amended complaint. (Doc. 5.) This matter is now
before the Magistrate Judge on the amended complaint, the July 30, 2013 motion to
strike filed by defendants City of Logan, Police Chief Aaron Miller, Lt. Gregg Cluley,
Josh Mowery, Tony Byron, Ex. Law Director Bob Lilly and Fire Chief Brian Robertson
(doc. 9), and the August 1, 2013 motion to strike filed by defendant J. Martin Irvine (doc.
13).
The amended complaint names as defendants the following person who were
also named as defendants in the original complaint: Police Chief Aaron Miller, Lt.

Gregg Cluley, Officer Josh Mowery, Officer Tony Byron, Prosecution Attorney Liana
Fetherolf, Mayor J. Martin Irvine, former Law Director Bob Lilly, Fire Chief Brian
Roberston, and the Hocking County Probation Office and Employees.1 (July 17, 2013
Amended Complaint, Introductory paragraph, p. 2, Doc. 5, PageID 31.) Named for the
first time as defendants are: "William L. Archer, Jonah M. Savings, Judge John T.
Wallace, and Steve Shaw in their official capacities." Id.,
As before, the complaint alleges a number of events that occurred more than two
years ago. The statute of limitations for claims under 42 U.S.C. § 1983 and 28 U.S.C. §
1331 is two years. See, Browning v. Pendleton, 869 F.2d 982, 992 (6th Cir. 1989)(en
banc)(statute of limitations for § 1983 suit is two years); Owens v. Okure, 488 U.S. 235
(1989); Friedman v. Estate of Jackie Presser, 929 F.2d 1151, 1159 (6th Cir. 1991)(statute of
limitations for Bivens suit is two years). A statute of limitations begins to run when the
plaintiff knows or has reason to know of the injury that is the basis of his action. Cooey v.
Strickland, 479 F.3d 412, 416 (6th Cir. 2007); Kelly v. Burks, 415 F.3d 558, 561 (6th Cir.
2005). Although the amended complaint alleges equitable tolling, it is clear from the
original complaint and the amended complaint that plaintiff had knowledge of the
alleged actionable conduct and the alleged harm he suffered as a consequence of that
conduct at the time the alleged actionable conduct. Consequently, all of the actionable
events alleged to have occurred before June 12, 2011 are barred by the statute of limi-

1

The City of Logan, a defendant in the original complaint, is apparently not
named as a defendant in the amended complaint.
2

tations. See, Eidson v. State of Tennessee Dep't of Children's Services, 510 F.3d 631, 635 (6th
Cir. 2007).
The amended complaint contains the following allegations. On July 8, 2008, Chief
of Police Aaron Miller visited plaintiff Elk's business, Mingo Trading Company LLC,
because of a noise complaint in the middle of the day. He told Elk that he needed to get
an event license. Elk spoke with Logan City Service Director Steve Shaw, but no license
was given. (Complaint, Statement of Fact, ¶ 1, Doc. 5, PageID 41.) On June 2, 2010,
Logan Police received an anonymous complaint about illegal gambling at Mingo
Trading Company LLC. Id., ¶ 2. On July 6, 2010, Elk visited Miller to complain about
police spreading rumors or leaks that the store was being watched for drugs and other
law violations. These rumors hurt Elk's business. Id., ¶ 3.
On December 11, 2010, Logan Police received an anonymous complaint and
wrongfully served a search warrant for illegal gambling machines that were, in fact,
legal skill game machines. Law enforcement damaged business property and seized the
machines. As a result, Mingo Trading Company lost business. On December 29, 2010,
the Hocking County Prosecutor's Office, Liana Fetherolf, William L. Archer, and Jonah
M. Savings brought four criminal charges against Elk for "skill-based amusement
machine prohibited conduct." This was contrary to the Indian Gaming Act of 1988 that
permits federally recognized Indian tribes to offer games of chance on tribal lands. Id., ¶
5. When Elk visited Fetherolf on December 13, 2010, she told him that she opposed the
prosecution but Judge John T. Wallace was pushing the case. Id., ¶ 6, PageID 42. While
3

the criminal charges were still pending against Elk, the owner of the machines was
permitted to retrieve them on the condition that he not allow plaintiff to use them. Id., ¶
18, PageID 45. On August 31, 2011, the criminal charges for "skill-based amusement
machine prohibited conduct" were dismissed without prejudice, but Elk "was told [he]
could not operate Skill games under threat of new Criminal Charges." Id., ¶ 12, PageID
44.
On December 30, 2010, Elk lost the opportunity to put an arcade in the First
Building - Leighans Dance Studio because the building owner believed he would be
conducting an illegal business on the premises. Id., ¶ 7, PageID 42.
On May 7, 2011, Elk was traveling to Alabama for a Native American Gathering
when he was contacted by Lt. Gregg Cluley by telephone. Cluley questioned him about
whether he had illegally seized a non-profit organization. In Alabama, two undercover
agents of the Department of the Interior, who said they were acting on an anonymous
tip, seized Elk's hawk feather roach. Elk later got the feathers back. Id., ¶ 8, PageID 43.
On May 21, 2011, Officer Josh Mowery stopped Elk's vehicle at 11:00 p.m. for
rolling across a stop bar. It was night time and dark. The stop bar was severely faded.
He inadvertently rolled a few inches by the stop bar. Plaintiff believes he and his
companion "were being profiled." Id., ¶ 9.
On June 8, 2011, Elk heard more rumors that "Police Officers were saying Mingo
Trading Company LLC was a bad place." Id., ¶ 10.
On June 20, 2011, Law Director Bob Lilly, William L. Archer, Jonah M. Savings,
4

and Liana Fetherolf brought a criminal indictment against Elk regarding Notoweega
Nation Inc., a non-profit corporation that "is an extension of Tribal Government/
Religious organization." This was a tactic to get him to plead guilt on the gambling
charges. Id., ¶ 11.
On October 8, 2011, Officer Tony Byron stopped Elk's car without probable
cause. Elk requested that a supervisor be called to the scene. Lt. Gregg Cluley appeared.
He told Elk that he had been pulled over because he "was under an indictment on a
different case and had no Ohio License . . . ." Elk showed them a New York license and
they let him go. He received a summons and had to appear in court. Id., ¶ 13. He
represented himself in court, was found guilty, and paid a $200 fine. Id.
On October 10, 2011, after both felony criminal cases had been dismissed, Elk
opened a new internet café in Logan. Police Chief Miller then harassed Elk at his new
business, telling him, "Just wanted to make sure these aren't skill games." Id., ¶ 14,
PageID 44-45. On January 1, 2012, Elk received notice that he had to apply to Mayor
Irving for an arcade license for the business. But the business was not an arcade and Elk
did not possess any arcade machines. His business "was an Sweepstake Parlor." Id., ¶
16, PageID 45. From September 9, 2012 to April 2013, Elk's internet café was shut down
"due to Made up Code Violations as a result of city's pursuit of Plaintiff’s business." Id.,
¶ 22, PageID 46. On December 28, 2012, Elk received another request from the offices of
Steve Shaw and J. Michael Irvin to renew an arcade license that he believed was illegal
and unnecessary. Id., ¶ 21.
5

On December 9, 2011, Elk was approached by a person who told him that at
about 10:00 a.m. Officer Mowery was "asking around." Id., ¶ 15, PageID 45. In January
2012, Elk received "information about Logan Police Officers following customers and
harassing them after leaving [his] place of business." Officer Mowery tried to frame Elk
when he told a woman he had pulled over and found marijuana in her possession that
he would release her if she said she got it from Mingo Trading Company LLC. Id., ¶ 17.
In August 2012, Elk "confirmed that the Hocking County Probation Office and its
Officers had been for some time . . . threatening individuals with arrest should they
shop at Plaintiff’s store, Mingo Trading Company LLC, a Native American owned
Store." Id., ¶ 19.
In October 2011, the day after Elk's internet café opened, Fire Chief Brian
Robertson posted a violation of occupancy and stop work order on the building. Id., ¶
20, PageID 46.
On March 6, 2013, a new skill games company was allowed to do business in
Logan. This was after the court, prosecutor Liana Fetherolf and Police Chief Aaron
Miller had told Elk he could not operate skill games. The complaint further alleges this
was "prejudicial treatment, okay for someone else to operate and not me." Id., ¶ 22.
In April 2013, Elk moved his business, The Red Door, to a new location and Fire
Chief Brian Robertson "sent a letter to my new Landlord that his business needs to file
for Occupancy of Change as an assembly. Another violation that has no merit." Id., ¶ 24,
PageID 47.
6

The Amended Complaint's Statement of Facts concludes that "Defendants have
intended in concert with unknown parties on behalf of Locan City, whether
purposefully or by nature of common ground, to impair and destroy Plaintiffs' business
and relationships with the third parties and that denial of licenses and Police
harassment was caused as a result of Plaintiffs' National Origin, in that he is Native
American." Id., PageID 47.
Motions to strike amended complaint (docs. 9 and 13). Although defendants
correctly state that McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997) held that a
prisoner could not amend his complaint after initial screening to avoid dismissal, that
case was recently overruled by Lafountain v. Harry, 716 F.3d 944, 951 (6th Cir. 2013).
Does the amended complaint state claims against defendants? When considering
whether a complaint fails to state a claim under Rule 12(b)(6), Federal Rules of Civil
Procedure, a court must construe it in the light most favorable to the plaintiff and accept
all well-pleaded material allegations in the complaint as true. Scheuer v. Rhodes, 416 U.S.
232, 236 (1974); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983).
Rule 8(a), Federal Rules of Civil Procedure provides for notice pleading. Conley v.
Gibson, 355 U.S. 41, 47 (1957). The United States Supreme Court held in Erickson v.
Pardus, 127 S.Ct. 2197 (June 4, 2007):
. . . Rule 8(a)(2) requires only "a short and plain statement of the claim
showing that the pleader is entitled to relief." Specific facts showing that
the pleader is entitled to relief are not necessary; the statement need only
"'give the defendant fair notice of what the . . . claim is and the grounds
, 127
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. ,
7

S.Ct. 1955,

(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

City of Logan. Although the city is named in the caption, the amended complaint
does not expressly allege that it is a defendant. Further, there are no allegations in the
complaint regarding what the City of Logan did to deprive plaintiff Elk of a constitutional right. Accordingly, I RECOMMEND that the City of Logan be DISMISSED
Defendants Hocking County Probation Office and Employees. The Probation
Office is not an entity capable of suing and being sued. Further, the amended complaint
contains no allegation that, if proven, would demonstrate that defendants Hocking
County Probation Office and Employees violated Elk's civil rights. The complaint fails
to state a claim for relief against them.
Defendants William L. Archer, Jonah M. Savings, Liana Fetherolf and Bob Lilly.
The allegations against these defendants all involve their performance of their duties as
prosecutors. Consequently, the claims pleaded against them are barred by absolute
prosecutorial immunity. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
As discussed below, any claims against them arising out of the criminal
prosecution for possession of gambling machines is barred by the two year statute of
limitations for claims under 42 U.S.C. § 1983. The claim that they brought additional
charges against Elk June 20, 2011 as a tactic to get him to plead guilty to the gambling
charges simply fails to state a claim for relief under § 1983.
Claims arising out of plaintiff Elk's criminal prosecution for possession of illegal
gambling machines. Although the statute of limitations for actions under 28 U.S.C. §
8

1983 is two years, Browning v. Pendleton, 869 F.2d 982, 992 (6th Cir. 1989)(en banc), the
law about when a cause of action connected with criminal charges accrues is not always
easy to apply. Ordinarily, a statute of limitations begins to run when the plaintiff knows
or has reason to know of the injury that is the basis of his action. Cooey v. Strickland, 479
F.3d 412, 416 (6th Cir. 2007); Kelly v. Burks, 415 F.3d 558, 561 (6th Cir. 2005). However,
the United States Supreme Court held in Heck v. Humphrey, 512 U.S. 477, 487 (1994) that,
if a favorable decision in an action under 42 U.S.C. § 1983 “would necessarily imply the
invalidity of his conviction or sentence,” the causes of action of a plaintiff who is
challenging his criminal conviction or sentence do not accrue until the conviction has
been set aside. Here plaintiff Elk was not convicted of a crime. The criminal charges
were dismissed. In Wallace v. Kato, 127 S.Ct. 1091, 1097 (2007), the United States
Supreme Court held that a cause of action for false arrest or false imprisonment accrues
when the plaintiff is detained pursuant to legal process. The Court further rejected the
arguments that Heck should apply based on the fact that a criminal prosecution was
pending or that the statute of limitations should be tolled while the criminal
prosecution was ongoing. 127 S.Ct. at 1098-1100. The Court asserted that “the Heck rule
for deferred accrual is called into play only when there exists ‘a conviction or sentence
that has not . . . invalidated . . . .’” Id., at 1097. See, Pethel v. Washington County Sheriff’s
Office, 2007 WL 2359765, at *7 (S.D. Ohio August 16, 2007)(Hoslschuh, J.). But see, Wolfe
v. Perry, 412 F.3d 707, 714-15 (6th Cir. 2005); Shamaeizadeh v. Cunigan, 182 F.3d 391, 396
(6th Cir. 1999).
9

Even if plaintiff’s constitutional claims did not accrue until the criminal charges
were dismissed August 31, 2011, the amended complaint fails to state an actionable
claim against any named defendant. The prosecutors are immune from suit for bringing
the charges. Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Judge John T. Wallace is
immune from suit. A judge performing judicial duties is absolutely immune from suit
seeking monetary damages. Mireles v. Waco, 502 U.S. 9, 9-10 (1991); Barnes v. Winchell,
105 F.3d 1111, 1115 (6th Cir. 1997); Collyer v. Darling, 98 F.3d 211, 221 (6th Cir. 1996). The
alleged hearsay statement of prosecuting attorney Liana Feterolf that Judge Wallace
was “pushing the case” is insufficient to state a claim against him.
Lt. Gregg Cluley. Plaintiff’s suspicion that Cluley may have had something to do
with Department of Interior agents seizing his hawk feather roach is insufficient to state
a claim against him. Further, any claim arising out of the May 2011 seizure is barred by
the two year statute of limitations for claims under 42 U.S.C. § 1983.
Officer Tony Byron. Elk was found guilty of a charge arising out of the October 8,
2011 stop. Consequently, he cannot now argue that the officer was without probable
cause to stop him.
Police Chief Aaron Miller. The allegation that Miller came to Elk’s new internet
café business in October 2011 to “make sure these aren’t skill games” fails to state a
claim for the violation of a constitutional right. Further, there is no allegation of injury
resulting from the visit.
Mayor J. Michael Irvin and Steve Shaw. Essentially the amended complaint
10

appears to allege that these defendants denied plaintiff Elk due process of law in
connection with licensing and code violations for his internet café. At this early stage of
the proceedings on initial screening, I cannot say that the amended complaint fails to
state claims against them under 42 U.S.C. § 1983.
Officer Josh Mowery. At the early, initial screening stage of this lawsuit, the
complaint states a claim against Mowery for attempting in December 2011 to deprive
plaintiff Elk of his property without due process of law.
Fire Chief Brian Robertson. As previously held in my July 9, 2013 Report and
Recommendation on Initial Screening, the complaint and the amended complaint state
claims for relief against Chief Robertson for attempting in October 2011 and again in
April 2013 to deprive plaintiff of the use of his property without according him due
process of law.
Accordingly, the Magistrate Judge RECOMMENDS that the defendants Judge
John T. Wallace, City of Logan, Police Chief Aaron Miller, Lt. Gregg Cluley, Officer
Tony Byron, prosecutors Liana Fetherolf, William Archer, and Johah M. Savings, former
Law Director Bob Lilly, and the Hocking County Probation Office and Employees be
DISMISSED from this lawsuit. These defendants do not have to respond to the
complaint unless the Court rejects this Report and Recommendation.
The lawsuit will continue as to the claims against Mayor J. Martin Irvine, Fire
Chief Brian Roberston, Officer Josh Mowery, and Steve Shaw. Defendants’ July 30 and
August 1, 2013 motions to strike the first amended complaint (docs. 9 and 13) are
11

DENIED, but their motions for an extension of time to answer are GRANTED. These
defendants are ORDERED to answer or otherwise respond to the complaint on or
before September 13, 2013.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
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 waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel
United States Magistrate Judge

12