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

Filing 3

INITIAL SCREENING REPORT AND RECOMMENDATION to dismiss defendants re 2 Complaint, re 1 motion for leave to proceed in forma pauperis. Objections to R&R due by 7/26/2013. Signed by Magistrate Judge Mark R. Abel on 7/09/13. (rew)

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

Great Elk Dancer for his Elk Nathion,
Plaintiff

:

Defendants

Judge Watson

:

City of Logan, et al.,

Civil Action 2:13-cv-0565

:

v.

:

Magistrate Judge Abel

:

Initial Screening Report and Recommendation
Plaintiff Great Elk brings this civil rights action under 42 U.S.C. §1983. Plaintiff's
motion to proceed without prepayment of fees and costs is GRANTED.
This matter is before the Magistrate Judge for screening of the complaint under
28 U.S.C. §1915(e)(2) to identify cognizable claims, and to recommend dismissal of the
complaint, or any portion of it, which 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, McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997). The
Magistrate Judge finds that the complaint fails to plead claims against any defendant
except Fire Chief Brian Roberton and, therefore, recommends that all defendants except
Robertson be dismissed from this lawsuit.
The complaint names as defendants the City of Logan, Police Chief Aaron Miller,
Lt. Gregg Cluley, Officer Josh Mowery, Officer Tony Byron, Prosecution Attorney Liana
Fetherolf, Mayor J. Martin Irviine, former Law Director Bob Lilly, Fire Chief Brian

Roberston, and the Hocking County Probation Office and Employees. 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). Consequently, all of the
actionable events alleged to have occurred before June 12, 2011 are barred by the statute
of limitations.
The complaint contains the following allegations. On an unspecified date, Officer
Josh 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 his
store. On an unspecified date, Law Director Bob Lilly brought criminal charges against
Elk and his non-profit corporation. On an unspecified date, 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.
In October 2011, Fire Chief Brian Robertson posted a made up violation of
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occupancy and stop work order on a building housing Elk's internet café. As a result,
the business was shut down for seven months.
On an unspecified date, a new skill games company was allowed to do business
in Logan. This was after the court, prosecutor Liana FetherHolf 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." In April 2013,
Elk moved his business, and Fire Chief Brian Bobertson "sent a letter to my new
Landlord that our business needs to file for Occupancy of Change as an assembly.
Another violation that has no merit." The complaint concludes that "Defendants have
intended 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."
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
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"'give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.': Bell Atlantic Corp. v. Twombly, 550 U.S. ,
, 127
S.Ct. 1955,
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957).

Analysis. There are no allegations in the complaint regarding what the City of
Logan or the Hocking County Probation Office and Employees did to violate Elk's civil
rights. The complaint fails to state a claim for relief against them.
The allegations about Liana Fetherolf and Bob Lily all involve their performance
of their duties as prosecutors. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
Consequently, the claims pleaded against them are barred by absolute prosecutorial
immunity.
The complaint fails to give Lt. Gregg Cluley and Officer Tony Byron fair notice of
the claims against them. It does not say when the traffic stop occurred. Further, Elk was
released after he produced his driver's license. Similarly the complaint fails to give
Officer Josh Mowery fair notice of the claim against him. Again no date(s) were pleaded
for the alleged actionable conduct. Further, it is not clear what Elk believes Mowery did
that, in fact, deprived him of a constitutional or other right.
The complaint fails to give Mayor J. Martin Irviine or Police Chief Aaron Miller
fair notice of what they allegedly did to deprive Elk of a constitutional or statutory
right. There are no factual allegations about their actionable conduct. No dates are
pleaded. The complaint does not explain what they did, when to deprive Elk of a
constitutional or statutory right.
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On initial screening, the complaint does arguably state claims for relief against
Fire Chief Brian Robertson.
Accordingly, the Magistrate Judge RECOMMENDS that the City of Logan, Police
Chief Aaron Miller, Lt. Gregg Cluley, Officer Josh Mowery, Officer Tony Byron,
Prosecution Attorney Liana Fetherolf, Mayor J. Martin Irviine, former Law Director Bob
Lilly, and the Hocking County Probation Office and Employees be DISMISSED because
it fails to state a claim under 42 U.S.C. §1983. 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 Fire Chief Brian Roberston. He should answer or
otherwise respond to the complaint within 45 days of being served with summons and
complaint.
IT IS FURTHER ORDERED that plaintiff's application to proceed without
prepayment of fees be GRANTED. The United States Marshal is ORDERED to serve
upon each defendant named in the complaint a copy of the complaint and a copy of this
Order.
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
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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).
The Clerk of Court is DIRECTED to mail a copy of the complaint and this Report
and Recommendation to each defendant.

s/Mark R. Abel
United States Magistrate Judge

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