Boddie v. Barstow et al

Filing 6

REPORT AND RECOMMENDATIONS that the federal law claims asserted in this case be dismissed under 28 USC §1915A for failure to state a claim upon which relief can be granted & that any state law claims be dismissed without prejudice under 28 USC §1367(c)(3). Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 5/2/2014. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Howard Boddie, Jr.,
Plaintiff,

:

Todd W. Barstow, et al.,
Defendants.

Case No. 2:14-cv-0106

:

v.

:

JUDGE GREGORY L. FROST
Magistrate Judge Kemp

:
:

REPORT AND RECOMMENDATION
Plaintiff, Howard Boddie, Jr., a state prisoner proceeding
pro se, filed this civil action under 42 U.S.C. §§ 1983, 1985,
and 1986 against five attorneys (three of whom defended him in
criminal proceedings and two of whom prosecuted him in criminal
proceedings) and the State of Ohio.

Mr. Boddie, Jr.’s current

confinement is unrelated to this cause of action.

The Court has

granted Mr. Boddie, Jr.’s motion for leave to proceed in forma
pauperis.

This matter is before the Court for an initial

screening pursuant to 28 U.S.C. §§1915(e) and 1915A.

For the

following reasons, it will be recommended that the federal law
claims be dismissed as barred by the applicable two-year statute
of limitations and that any state law claims be dismissed under
28 U.S.C. §1367(c).
I.
28 U.S.C. §1915(e)(2) provides that in proceedings in forma
pauperis, “[t]he court shall dismiss the case if ... (B) the
action ... is frivolous or malicious [or] fails to state a claim
on which relief can be granted....”

28 U.S.C. §1915A further

provides that in any prisoner case, the Court shall dismiss the
complaint or any portion of it if, upon an initial screening, it
appears that the complaint fails to state a claim upon which
relief can be granted or seeks monetary damages from a defendant

who is immune from suit.

The purpose of these statutory sections

is to prevent suits which are a waste of judicial resources and
which a paying litigant would not initiate because of the costs
involved.

See Neitzke v. Williams, 490 U.S. 319 (1989).

A

complaint may be dismissed as frivolous only when the plaintiff
fails to present a claim with an arguable or rational basis in
law or fact.

See id. at 325.

Claims which lack such a basis

include those for which the defendants are clearly entitled to
immunity and claims of infringement of a legal interest which
does not exist, see id. at 327-28, and “claims describing
fantastic or delusional scenarios, claims with which federal
district judges are all too familiar.”

Id. at 328; see also

Denton v. Hernandez, 504 U.S. 25 (1992).

A complaint may not be

dismissed for failure to state a claim upon which relief can be
granted if the complaint contains “enough facts to state a claim
to relief that is plausible on its face.”
Twombly, 127 S. Ct. 1955, 1974 (2007).

Bell Atlantic Corp. v.

Claims against defendants

who are immune from suits for money damages, such as judges or
prosecutors acting in their judicial or prosecutorial capacity,
are also within the ambit of §1915A.

Pro se complaints are to be

construed liberally in favor of the pro se party.
Kerner, 404 U.S. 519 (1972).

See Haines v.

It is with these standards in mind

that the plaintiff’s complaint and application for leave to
proceed in forma pauperis will be considered.
II.
The facts that Mr. Boddie, Jr. has alleged in his complaint
may be summarized as follows.

On July 8, 2008, Mr. Boddie, Jr. was

arrested and charged with domestic violence and assault in the
Franklin County Municipal Court.

On August 30, 2008, both the

domestic violence case and the assault case were dismissed because
the State failed to adhere to speedy trial requirements.

On

November 18, 2008, Mr. Boddie, Jr. was re-charged with domestic
2

violence and indicted based on the same alleged incident and
victim.

This second charge of domestic violence was under case

number 08CR-11-8246.
On May 26, 2009, Mr. Boddie, Jr. was charged with two felony
failures to appear on Case No. 08CR-11-8246 even though he was in
the Veteran’s Hospital recovering from surgery, and as a result he
was held in custody because he could not afford the bond set at
that time.

On July 10, 2009, without Mr. Boddie, Jr.’s knowledge

or consent, Defendant Barstow (who was Mr. Boddie, Jr.’s defense
attorney at the time) filed a motion claiming that Mr. Boddie, Jr.
was incompetent to stand trial.

As a result, Mr. Boddie, Jr. was

committed to the Twin Valley Behavioral Center for evaluation and
remained

incarcerated

or

otherwise

under

the

Franklin County Corrections Center for some time.
was held to be competent.

control

of

the

Mr. Boddie, Jr.

On May 28, 2010, the felony failure to

appear charges were dismissed because of his surgery and recovery
in the Veteran’s Hospital.
On April 18, 2011, the day of trial in Case No. 08CR-11-8246,
counsel for Mr. Boddie, Jr. again attempted to have Mr. Boddie, Jr.
plead guilty and allowed a jury to be seated, and Mr. Boddie, Jr.
was finally able to persuade his counsel to find certified records
of the prior cases during the lunch recess to present to the court.
The next day, the judge dismissed the case on double jeopardy
grounds, stating that Mr. Boddie, Jr. was charged for the same
incident in the Franklin County Municipal Court and the case was
dismissed for time served.
Mr. Boddie, Jr. alleged that, in connection with Case No.
08CR-11-8246,

his

three

defense

attorneys

violated

his

constitutional rights by trying to convince him that this was not
a case to which double jeopardy applied, refusing to argue that the
case should be dismissed on grounds of double jeopardy, and trying
to

plea

bargain.

He

also

alleged
3

that

one

of

his

defense

attorneys, Defendant Barstow, intentionally inflicted emotional
distress by filing a motion to hold Mr. Boddie, Jr. incompetent to
stand trial.

In addition, he alleged that two Franklin County

Assistant Prosecuting Attorneys and the State of Ohio violated his
constitutional

rights

by

failing

and

refusing

to

stop

the

prosecution even after being made aware of the double jeopardy
violations.

He argues that as a result of the constitutional

violations by Defendants and their conspiracy, he was held against
his will, incarcerated and subjected to competency evaluations and
exams for over two and a half years.
III.
Mr. Boddie, Jr. has claimed that defendants violated his
constitutional rights and conspired to commit unlawful acts.

He

brings these claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1986.
Section 1986 claims are derivative of section 1985 claims, so a
plaintiff who fails to state a claim under 1985 also fails to state
one under 1986.

Ruiz v. Hofbauer, 325 F. App'x 427, 432 (6th Cir.

2009).
The statute of limitations applicable to claims arising in
Ohio under 42 U.S.C. §1983 is the two-year statute of limitations
found in Ohio Revised Code § 2305.10.

Browning v. Pendleton, 869

F.2d 989 (6th Cir. 1989); see also Hunt v. City of Cleveland,
13-3898, 2014 WL 1560687, *2 (6th Cir. Apr. 21, 2014) (citing
Browning).

Claims arising in Ohio under 42 U.S.C. §1985 are also

governed by a two-year statute of limitations.

Sykes v. United

States, 507 F. App'x 455, 462 (6th Cir. 2012) (applying the same
two-year statute of limitations to claims pursuant to sections 1983
and 1985 and citing Browning); see also Ford Motor Credit Co. v.
Jones, 2009-Ohio-3298 (Ohio Ct. App., Cuyahoga Cty. 2009) (in Ohio,
“the applicable statute of limitations for the underlying cause of
action applies to the civil conspiracy charge”) (citation omitted).
Although the statute of limitations is normally an affirmative
4

defense that must be raised by defendants in an answer, if the
limitations bar appears on the face of the complaint, the Court may
apply it during the initial screening process.

See, e.g., Watson

v. Wayne County, 90 Fed. Appx. 814, *1 (6th Cir. January 26, 2004)
(“If a statute of limitations defense clearly appears on the face
of a pleading, the district court can raise the issue sua sponte”)
(citing Pino v. Ryan, 49 F.3d 51, 53–54 (2d Cir. 1995)).

This

Court has applied that rule in cases screened under § 1915A.

See,

e.g., Smith v. Warren County Sheriff's Dept., 2010 WL 761894 (S.D.
Ohio March 2, 2010).

Thus, the Court must look to the allegations

in the complaint to determine whether the action has been filed
within the applicable two-year period.
Here, all of the conduct alleged in the complaint occurred
before April 19, 2011, when the Franklin County Court of Common
Pleas dismissed the case against Mr. Boddie, Jr. on double jeopardy
grounds.

(See Doc. 3 at ¶17 & Doc. 3-3).

Mr. Boddie, Jr.’s motion

to proceed in forma pauperis with the complaint attached was
received by this Court on January 30, 2014.

Even assuming that it

was placed in the hands of prison officials for mailing shortly
before that date, it is clear that it was not filed within two
years

of

the

events

in

question,

and

that

the

statute

of

limitations, unless tolled for some reason, would bar further
prosecution of this case.
To the extent that Mr. Boddie, Jr. has asserted a state tort
claim for intentional infliction of emotional distress or any other
state tort claim, those claims should not be heard by this Court
because there is no viable federal law claim pleaded in the
complaint. See 28 U.S.C. § 1367(c) (“The district courts may
decline to exercise supplemental jurisdiction over a claim [over
which there is no original jurisdiction] if ... (3) the district
court

has

dismissed

all

claims

jurisdiction”).
5

over

which

it

has

original

IV.
For the reasons set forth above, it is recommended that the
federal law claims asserted in this case be dismissed under 28
U.S.C. § 1915A for failure to state a claim upon which relief can
be granted because those claims are barred by the statute of
limitations.

It is recommended that any state law claims be

dismissed without prejudice under 28 U.S.C. § 1367(c)(3).

It is

further recommended that if this recommendation is adopted, a copy
of the complaint, this Report and Recommendation, and the dismissal
order be mailed to each Defendant.
V.
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).

A judge

of this Court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to
which objection is made.

Upon proper objections, a judge of this

Court may accept, reject, or modify, in whole or in part, the
findings

or

recommendations

made

herein,

may

receive

further

evidence or may recommit this matter to the magistrate judge with
instructions.

28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right
to have the district judge review the Report and Recommendation de
novo, and also operates as a waiver of the right to appeal the
decision of the District Court adopting the Report and
Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United
States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
6