Boddie v. Barstow et al

Filing 10

ORDER adopting 6 Report and Recommendations. Signed by Judge Gregory L Frost on 6/11/14. (kn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

HOWARD BODDIE, JR.,
Plaintiff,
Case No. 2:14-cv-106
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

v.
TODD W. BARSTOW, et al.,
Defendants.

ORDER
This matter is before the Court for consideration of the Magistrate Judge’s May 2, 2014
Report and Recommendation (ECF No. 6) and Plaintiff’s May 15, 2014 Objections (ECF No. 8).
When a party objects within the allotted time to a report and recommendation, the Court “shall
make a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P.
72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
In his objections, Plaintiff argues that the Magistrate Judge erred in concluding that the
Court should dismiss Plaintiff’s federal claims under 28 U.S.C. § 1915A for failure to state a
claim upon which this Court can grant relief and that the Court should dismiss Plaintiff’s state
law claims without prejudice. The Magistrate Judge explained in the Report and
Recommendation that the federal claims were barred as a result of the statute of limitations and
that, absent the federal claims, the Court should decline to exercise supplemental jurisdiction

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over the remaining state law claims under 28 U.S.C. § 1367(c). Having conducted a de novo
review and after consideration of the Report and Recommendation and the objections, this Court
concludes that Magistrate Judge’s reasoning is correct.
Plaintiff first objects to the Magistrate Judge’s reasoning by asserting that it is improper
for the Court to raise the statute of limitations issue sua sponte as opposed to waiting for a
defendant to raise it as an affirmative defense. But as the Magistrate Judge explained, “[i]f a
statute of limitations defense clearly appears on the face of a pleading, the district court can raise
the issue sua sponte.” Watson v. Wayne Cnty., 90 F. App’x 814, 815 (6th Cir. 2004). See also
Alston v. Tenn. Dep’t of Corr., 28 F. App’x 475, 476 (6th Cir. 2002) (“Because the statute of
limitations defect was obvious from the face of the complaint, sua sponte dismissal of the
complaint was appropriate.”). Although Plaintiff attempts to evade the statute of limitations by
noting that he pled that the limitations period had been tolled, this is not how tolling works. A
party cannot obtain tolling simply by stating that he is entitled to it, and Plaintiff has failed to
present this Court was sufficient cause for tolling the applicable statute of imitations here. The
fact that Plaintiff is still allegedly bothered by Defendants’ purported conduct does not toll the
statute of limitations.
Plaintiff next objects by arguing that the Magistrate Judge erred in concluding that
Ohio’s statute of limitations governed his claims under 42 U.S.C. §§ 1983 and 1985. The twoyear statute of limitations, however, indeed applies to these claims. See Swartz v. Eastman &
Smith, 194 F.3d 1314, 1999 WL 801570, at *1 (6th Cir. 1999) (unpublished table decision).
Additionally, as the Magistrate Judge explained, because Plaintiff’s “§ 1985 claim is timebarred, an action under § 1986, which imposes liability upon one who fails to prevent a violation

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of § 1985, cannot be maintained.” Id. These are more than “technical detail[s]” as Plaintiff
characterizes them in his objections. (ECF No. 8, at Page ID # 71.) They are the law. Although
disposition on the merits is preferred, this Court is not free to ignore the law.
Plaintiff also points to his being an incarcerated individual, his being a pro se litigant,
and his being in a position of allegedly less power than defendants as reasons for not applying
the statute of limitations. None of these reasons are sufficient to provide Plaintiff the relief he
seeks.
First, although Plaintiff states that he is entitled to tolling as a result of disability, Plaintiff
has failed to present this Court with facts indicating a recognized status or disability during the
requisite time period so that application of tolling here would save his untimely complaint. See
Swartz v. Eastman & Smith, 194 F.3d 1314, 1999 WL 801570, at *1; Ohio Rev. Code § 2305.16.
As the Sixth Circuit has explained, “incarceration has not provided a basis for tolling Ohio civil
rights cases since 1991.” Watson v. Decapua, 181 F.3d 106, 1999 WL 283878, at *1 (6th Cir.
1999) (unpublished table decision). See also Creech v. City of Portsmouth, 50 F.3d 10, 1995
WL 118937, at *2 (6th Cir. 1995) (unpublished table decision); Gauntt v. Miracle, No.
3:01CV7492, 2001 WL 1465763, at *3 (N.D. Ohio June 10, 2002).
Second, pro se status does not carry with it a right to equitable tolling. See Granderson
v. Univ. of Mich., 211 F. App’x 398, 401 (6th Cir. 2006) (holding that pro se status does not
relieve a plaintiff of the obligation to meet requirements imposed by the law); Garrett v. Snyder,
211 F.3d 1269, 2000 WL 571929, at *2 (6th Cir. 2000) (“ignorance of the law does not support
equitable tolling of a statute of limitations”).
Third, there is simply no power imbalance tolling exception.

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Based on the foregoing, the Court OVERRULES Plaintiff’s Objections (ECF No. 8),
ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 6), DISMISSES
Plaintiff’s federal claims, and DISMISSES WITHOUT PREJUDICE Plaintiff’s state law
claims. The Clerk shall enter judgment accordingly and terminate this case on the docket
records of the United States District Court for the Southern District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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