Starnes v. Stout et al

Filing 20

REPORT AND RECOMMENDATION that 12 MOTION to Dismiss Defendants Anthony Campo and Shawn Corr and Alternative Motion for Summary Judgment, and 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted. It is further recommen ded that the claims against Sara Andrews and Damian Rodriguez be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m). Objections to R&R due by 9/28/2015. Signed by Magistrate Judge Terence P. Kemp on 9/11/2015. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert F. Starnes, Jr.,

:

Plaintiff,

:
:

v.
T. Austin Stout, et al.,

Case No. 2:14-1699
JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

Defendants.

:

REPORT AND RECOMMENDATION
Plaintiff Robert F. Starnes, Jr., a federal inmate
incarcerated at the United States Penitentiary in Pine Knot,
Kentucky, filed this action alleging violations of his Fourth
Amendment rights in connection with his arrest on an alleged
parole violation.

He has named as defendants several employees

of the Ohio Adult Parole Authority including T. Austin Stout, the
assistant chief legal counsel, Sara Andrews, APA chief, Steve
Vukmer, APA supervisor, Bert Fitzgerald, parole officer, Cynthia
Ali, regional administrator, and Damian Rodriguez, a task force
officer.

Mr. Starnes also has named Detective Campo and Officer

Shawn Corr of the Sheffield Lake Police Department.

Mr. Campo

and Mr. Corr have filed a motion to dismiss or, in the
alternative, for summary judgment.

Defendants Stout, Fitzgerald,

Vukmer, and Ali also have filed a motion to dismiss.
motions have been fully briefed.

These

For the following reasons, the

Court will recommend that the motions to dismiss be granted.
I.

Background

Mr. Starnes has used a form complaint and has indicated that
he is bringing a civil rights complaint under 28 U.S.C. §1331 as
a federal prisoner.

The Court, however, construes Mr. Starnes’

complaint, containing allegations of violations of his

constitutional rights by various employees of the Ohio APA or a
local police department, as arising under 42 U.S.C. §1983.
Consequently, the Court will consider Mr. Starnes’s claims within
the framework of that statute.
According to the complaint, on July 22, 2010, Mr. Starnes
was arrested on a warrant issued by the Ohio APA.

The facts

surrounding his arrest are set out in a decision from the Court
of Appeals for the Sixth Circuit relating to his trial on charges
of bank robbery.

United States v. Starnes, 501 Fed.Appx. 379

(6th Cir. Sept. 26, 2012).

The Court of Appeals’ decision

reversed a district court’s denial of Mr. Starnes’ motion to
suppress evidence of the robberies seized from his house during
this arrest and remanded for further proceedings.

Mr. Starnes

has attached a copy of this decision to his complaint.

He makes

specific reference to this decision, issued on September 26,
2012, in his complaint and states “Plaintiff deffers (sic) to the
separate legal memorandum included to explain claims more
clearly.”
The Court of Appeals explained the circumstances of the
arrest, relevant to Mr. Starnes’ current complaint, this way:
II.

Defendant’s Arrest and the Search
of His Apartment and Vehicle

Around this same period, three local area banks
were robbed, with the last occurring on July 21, 2010.
On July 22, 2010, a detective with the Sheffield Lake
Police Department (“SLPD”) contacted Officer Fitzgerald
to inquire about Defendant’s parole status. At that
time, Officer Fitzgerald learned that Defendant was the
prime suspect for the robbery, and he identified
Defendant from surveillance pictures taken at the bank.
Based on this information, Officer Fitzgerald decided
to have Defendant arrested for his failure to report.
That afternoon, officers with the APA, the SLPD,
the Fugitive Task Force, and the FBI convened on the
Sheffield Lake apartment where Defendant lived with his
wife. The parties dispute exactly who was involved in
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the arrest team, but about four to ten officers were on
scene. Because Defendant was deemed a “high risk
fugitive,” the officers originally planned a “dynamic
entry,” by forcibly battering the door and entering
without warning. However, after determining that the
door would not yield easily, the officers instead
effected a “knock-and-announce” entry.
Defendant’s wife, Kim Starnes, opened the door.
She was immediately ordered to the floor and placed in
handcuffs. After a brief period, the officers stood
Kim up, took her to the living room, and sat her on the
couch, where she remained handcuffed. The officers
informed Kim that they were executing a warrant for her
husband’s arrest based on a parole violation. Kim
responded that there was a court order releasing
Defendant from parole, and she directed the officers to
a copy of the sentencing judge’s order that the couple
kept in the kitchen.
Other officers quickly located Defendant at the
back of the apartment. Defendant was ordered to the
ground, handcuffed, and arrested. Defendant also
provided the officers with a copy of the sentencing
judge’s order that he carried in his wallet. Defendant
clearly informed the officers that he was no longer on
parole, and he told them, “You’re not supposed to be
here.” The parties dispute whether Defendant was
removed from the apartment immediately upon his arrest
or whether Defendant remained on the scene for
approximately fifteen to twenty minutes while an
initial search of the apartment was conducted.
The APA officers conducted a first search of the
apartment, but they seized no evidence. Sometime
during or after this search and Defendant’s arrest, FBI
Special Agent Kelly Liberti entered the apartment and
approached Kim. Agent Liberti identified herself as an
FBI agent, removed Kim’s handcuffs, and informed Kim
that Defendant was a suspect in a bank robbery. Agent
Liberti told Kim that the agents wanted to search the
apartment for evidence of the robbery, and she handed
Kim a copy of the FBI’s standard “Consent to Search”
form. Agent Liberti read the form to Kim, who
responded that she and her husband “had nothing to
hide” and signed it. Kim later testified at the
suppression hearing, however, that she did not
personally read the form, that she was upset and
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distracted because of the stressful circumstances, and
the she felt she had no choice but to sign the form,
because by that point, the APA had already begun to
search the apartment.
The FBI then conducted a second search of the
apartment and seized a pellet gun, a red bandana, black
pants with white striping, and a notebook. Although
the FBI initially sought Kim’s consent to search
Defendant’s vehicle, after discovering that her name
was not on the title, the FBI asked the APA to search
the van pursuant to its parole authority. The APA did
so and seized a crossbow, bolt cutters, and a
camouflage-colored baseball cap.
U.S. v. Starnes, supra, at *3-4.
In his complaint, Mr. Starnes asserts that the Court of
Appeals’ decision “made manifest that Plaintiff’s 4th amend.
rights were violated and restricted as Agents named as the Parole
Officers and task force entered Plaintiff’s residence and
arrested him and searched his home against a Court order
specifying that they cease any and all supervision.”

Mr. Starnes

contends that he “suffered false imprisonment” and “was basically
kidnapped” by anyone having “a hand in issuing and executing
actions of the illegal warrant for violation of parole.”

He

further states that “[t]he loss of freedom, and items never
returned to Plaintiff taken from home during search and arrest,
exist still today.”
II.

Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not
be granted if the complaint contains “enough facts to state a
claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). All well-pleaded
factual allegations must be taken as true and be construed most
favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009). Rule 8(a) admonishes the Court to look only for a “short
and plain statement of the claim,” however, rather than requiring
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the pleading of specific facts. Erickson v. Pardus, 551 U.S. 89
(2007).
A 12(b)(6) motion to dismiss is directed solely to the
complaint and any exhibits attached to it. Roth Steel Products v.
Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The
merits of the claims set forth in the complaint are not at issue
on a motion to dismiss for failure to state a claim.
Consequently, a complaint will be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) only if there is no law to support the claims
made, or if the facts alleged are insufficient to state a claim,
or if on the face of the complaint there is an insurmountable bar
to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,
702 (6th Cir. 1978). Rule 12 (b)(6) must be read in conjunction
with Fed. R. Civ. P. 8(a) which provides that a pleading for
relief shall contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." 5A Wright &
Miller, Federal Practice and Procedure § 1356 (1990). The moving
party is entitled to relief only when the complaint fails to meet
this liberal standard. Id.
On the other hand, more than bare assertions of legal
conclusions is required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988). "In practice, a complaint must contain either direct
or inferential allegations respecting all the material elements
to sustain a recovery under some viable legal theory." Id.
(emphasis in original, quotes omitted).
"[w]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind rule 8 and
the concept of notice pleading. A plaintiff will not
be thrown out of court for failing to plead facts in
support of every arcane element of his claim. But when
a complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist."
Id. It is with these standards in mind that the motion to dismiss
will be decided.
III.

Analysis
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A.

The Motion to Dismiss

Both motions to dismiss contend that Mr. Starnes’ claims are
barred by the statute of limitations applicable to §1983 actions.
This is so, these defendants contend, because more than two years
passed between the alleged illegal search and arrest in July,
2010 and Mr. Starnes’ filing of this action on September 25,
2014.

According to defendants, the statute of limitations began

to run for his §1983 claim when Mr. Starnes knew or had reason to
know of the violation of his rights.

They contend that, under

that facts of this case, that date was July 22, 2010.

Both sets

of defendants rely on Hornback v. Lexington-Fayette Urban Cnty.,
543 Fed.Appx. 499 (6th Cir. 2013), a case they contend is
directly on point here.
The APA defendants further contend that any claim Mr.
Starnes has asserted concerning his arrest and prosecution for
bank robbery are barred under Heck v. Humphrey, 512 U.S. 477
(1994), because a favorable outcome did not result from the
reversal of his conviction.

Additionally, these defendants argue

that any claims regarding confiscated personal property or other
state law torts can only be brought in the Ohio Court of Claims.
The police defendants additionally contend that Mr. Starnes’
claims against them in their official capacity cannot succeed and
that they are entitled to qualified immunity.
In response to the APA defendants’ arguments, Mr. Starnes
contends that he was not certain he had a Fourth Amendment claim
until the Court of Appeals issued its decision.

He explains that

his “claim of loss of freedom has nothing to do with criminal
charges, but infringement upon my freedom and wife’s in our
home.”

Further, he states, “[t]his suit is because of 4th

amendment violations by these agents and supervisors, not
Plaintiff’s criminal record.”

Finally, he offers that “[t]his

suit reflects nothing of what I have done, or shouldn’t for sure,

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but what the Adult Parole Authority did by believing they were
above availing themselves of the appellate process.”

In response

to the police defendants’ motion to dismiss, Mr. Starnes concedes
that qualified immunity may apply because the court order
relating to parole may have been ambiguous to them, just as it
was to him.
Only the APA defendants have filed a reply.

In this reply,

these defendants acknowledge Mr. Starnes’ clarification that he
is not seeking relief relating to his bank robbery convictions.
Further, they note that Mr. Starnes does not address the issue of
the seizure of his personal property as alluded to in his
complaint.

His failure to do so, they contend, constitutes a

waiver of any such claim.

Finally, they reiterate their statute

of limitations argument, noting that Mr. Starnes’ own pleadings
demonstrate that he knew or should have known in July, 2010 that
his search and arrest were “flawed and actionable.”

They point

out that the issue is not whether Mr. Starnes actually knew or
had confirmation that his rights were violated, but whether he
should have known as of that date.
Because a finding that Mr. Starnes’ claims are barred by the
statute of limitations would resolve this matter as to all
defendants, the Court will turn to that issue first.
A.

Statute of Limitations

State law governs the appropriate statute of limitations for
a cause of action arising under §1983.
399 F.3d 792, 794 (6th Cir. 2005).
limitations period is two years.
989, 992 (6th Cir. 1989).

Under Ohio law, the

Browning v. Pendleton, 869 F.2d

However, “federal law governs when the

limitations period begins to run.”
384, 388 (2007).

Roberson v. Tennessee,

Wallace v. Kato, 549 U.S.

There is no dispute between the parties as to

the length of the applicable limitations period.
issue here is when Mr. Starnes’ claims accrued.

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Rather, the

In §1983 actions, the statute of limitations accrues when
the plaintiff knew or should have known of the injury that forms
the basis of the claims alleged in the complaint.

Eidson v.

State of Tenn. Dept. Of Children’s Servs., 510 F.3d 631, 635 (6th
Cir. 2007), citing Kuhnle Bros., Inc. v. County of Geauga, 103
F.3d 516, 519 (6th Cir. 1997).

Mr. Starnes contends that he did

not know of the injury until the Court of Appeals reversed the
denial of his motion to suppress, vacated his conviction, and
remanded for further proceedings.

Defendants contend that Mr.

Starnes had notice of the unlawful search and seizure on July 22,
2010, and, therefore, it is the date of the search that controls
for statute of limitations purposes.

For the reasons explained

below, defendants are correct.
Prior to the United States Supreme Court’s holding in
Wallace v. Kato, 549 U.S. 384 (2007), there was some support for
Mr. Starnes’ position in Sixth Circuit precedent relying on the
reasoning set forth in Heck v. Humphrey, 512 U.S. 477 (1994).

In

Heck, “the Supreme Court crafted a deferred accrual rule, that ‘a
§1983 cause of action for damages attributable to an
unconstitutional conviction or sentence does not accrue until the
conviction or sentence has been invalidated.’”

Shakleford v.

Hensley, Slip Copy, 2013 WL 5371996, *3 (E.D. Ky. Sept. 24, 2013)
quoting Heck, 512 U.S. at 489.

In Shamaeizadeh v. Cunigan, 182

F.3d 39 (6th Cir. 1999), the Court of Appeals held “that when a
§1983 claim would imply the invalidity of a future conviction,
the statute of limitations would not begin to run until the
criminal charges have been dismissed.”
227, 234 (6th Cir. 2007).

Fox v. DeSoto, 489 F.3d

In Wallace, however, the Supreme Court

“specifically held that Heck is not to be extended into the preconviction arena.”
U.S. at 384.

Eidson, 510 F.3d at 639, citing Wallace, 549

In Fox, the Court of Appeals “explicitly recognized

that Wallace ‘abrogates the holding in Shamaeizadeh.’”

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Eidson,

510 F.3d at 639, quoting Fox, 489 F.3d at 233.

In Eidson, the

Court of Appeals explained the holding of Wallace as follows:
Moreover, irrespective of the difference between
types of §1983 claims asserted, the rule of Heck cannot
be divorced from its post-conviction setting. This is
the teaching of Wallace. Wallace, simply cannot be
fairly read to imply that the accrual of a §1983
malicious-prosecution-type claim is necessarily and
indefinitely delayed in a pre-conviction setting until
there is some accused-favorable resolution of pending
or anticipated future prosecution. The Wallace court
event referred to the “Heck-required setting aside of
the extant conviction” as it explained the
“impracticality” of the urged “bizarre extension” of
Heck to the pre-conviction setting. Id. at 1098. The
court went on to observe that “[i]f a plaintiff files a
false arrest[-type §1983] claim before he has been
convicted (or files any other claim related to rulings
that will likely be made in a pending or anticipated
criminal trial), it is within the power of the district
court, and in accord with common practice, to stay the
civil action until the criminal case or the likelihood
of a criminal case is ended.” Id. Recognizing that a
§1983 plaintiff’s right to relief could be preserved in
this manner, the Wallace court deemed it unnecessary to
extend the rule of Heck to the pre-conviction setting.
Id. at 640.
In the years since Wallace, the Court of Appeals and several
district courts within this Circuit have held or acknowledged
that claims under §1983 for illegal search and seizure - even if
the search and seizure leads to a criminal proceeding where the
results of the search are used as evidence - accrue at the time
of the improper search.

In Harper v. Jackson, 293 Fed.Appx. 389,

391 n.1 (6th Cir. 2008), the Court of Appeals specifically noted
that “Wallace also clarified that Heck does not delay the accrual
of an otherwise complete and present cause of action when a
judgment in the plaintiff’s favor ‘would impugn an anticipated
future conviction.’” Id., quoting Wallace, 549 U.S. at 394.

In

Harper, the Court of Appeals stated that Harper’s claims accrued
on the date of the alleged illegal search and seizure, but that
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the [statute of limitations] defense was forfeited by defendants’
failure to raise it.

Id.

Harper has been recognized by district

courts as establishing that “the general rule of Wallace soundly
applies to a search and seizure scenario.”

Hornback v.

Lexington-Fayette Urban County Government, 905 F.Supp.2d 747, 750
(E.D. Ky. 2012).
Other district courts have relied directly on Wallace’s
abrogation of Shamaeizadeh

to conclude that a search and seizure

claim accrues on the date of the unconstitutional conduct.

See,

e.g., Ory v. Hamilton County, Tenn., Slip Copy, 2014 WL 1091965,
*5 n.2 (E.D. Tenn. March 18, 2014)(“... assuming a hypothetical
judgment in this litigation that the search and seizure were
unconstitutional would not necessarily imply the invalidation of
Plaintiff’s criminal conviction, the claim would have to be
dismissed with prejudice as time-barred.

This is so, because the

alleged unconstitutional conduct occurred on December 9, 2009,
the cause of action accrued on that date” and the statute of
limitations ran before the action was filed).
This Court also has recognized, relying on Wallace, that a
Fourth Amendment claim based on a warrantless search accrues on
the date of the search.

Pethtel v. Washington Cnty. Sheriff’s

Office, 2007 WL 2359765, *9 (S.D. Ohio Aug. 16, 2007)(Holschuh,
J.) (“Plaintiff’s other Fourth Amendment claim, based on the
warrantless search of his truck without his consent, is also
time-barred.

Plaintiff had a complete and present cause of

action on September 8, 2003, the date of the search”).
Similarly, relying on Wallace, courts have found that a
claim for false arrest in violation of the Fourth Amendment
generally accrues when the arrest occurs.

See, e.g., Curran v.

City of Dearborn, 957 F.Supp.2d 877, 883 (E.D. Mich. 2013);
Taylor v. Terry, 2015 WL 5008782, *3 (M.D. Tenn. Aug. 19, 2015).
The Court of Appeals in Fox, relying on Wallace, stated that “the

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statute of limitations for a claim for false arrest, [], ‘where
the arrest is followed by criminal proceedings, begins to run at
the time the claimant becomes detained pursuant to the legal
process.’”

Fox, 489 F.3d at 235, quoting Wallace, 549 U.S. at

397.
Under the facts alleged alleged by Mr. Starnes, as described
by the Court of Appeals, Mr. Starnes’ §1983 claim for a violation
of his Fourth Amendment rights is barred by the applicable twoyear statute of limitations.

As explained above, the date of the

Court of Appeals’ decision, or as Mr. Starnes’ describes it, the
day it was made “manifest” to him that a constitutional violation
occurred, is not the controlling date for statute of limitations
purposes.

That is, there is no delayed accrual applicable here

as Mr. Starnes suggests.

Rather, as the case law dictates, the

statute of limitations began to run when Mr. Starnes knew or
should have known of the alleged violation of his Fourth
Amendment rights.

Here, that date was in July, 2010, a date

well over two years before the filing date of the complaint.
Consequently, the Court will recommend that the motions to
dismiss be granted on statute of limitations grounds.
B.

Remaining Issues

To the extent that Mr. Starnes states that he “has suffered
false imprisonment,” the Court does not view that conclusory
statement as asserting such a claim.

Here, Mr. Starnes makes

only a conclusory allegation of false imprisonment and provides
no specifics.

Moreover, a claim for false imprisonment begins to

run when the alleged false imprisonment ends.

“Because what

makes a false imprisonment ‘false’ is the detention without due
process, ‘a false imprisonment ends once the victim becomes held
pursuant to such process - when, for example, he is bound over by
a magistrate or arraigned on charges.’” Taylor v. Terry, 2015 WL
5008782, *3 (M.D. Tenn. Aug. 19, 2015), quoting Wallace, 549 U.S.

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at 389.

At most, Mr. Starnes indicates in his response to the

APA’s motion to dismiss that he was “locked [] up for 7 days
before any charges other than “parole violator” were lodged
against [him].”

The reasonable interpretation of this language

is that any alleged false imprisonment claim would have ended in
this time frame and would therefore be barred by the statute of
limitations.
Similarly, the Court does not construe Mr. Starnes’
complaint as raising a Heck v. Humphrey issue.

As defendants

recognize, Mr. Starnes clarified in his response that he is not
asserting any issues relating to his bank robbery conviction.
Further, to the extent that Mr. Starnes may be attempting to
state any type of due process claim for the confiscation of his
personal property, he has not alleged that existing state
remedies are inadequate.

Consequently, any such claim must fail.

See Rothhaupt v. Maiden, 144 Fed.Appx. 465, 472 (6th Cir. 2005);
Jefferson v. Jefferson County Public School System, 360 F.3d 583,
588 (6th Cir. 2004).
Additionally, to the extent that Mr. Starnes may be
attempting to assert any state law tort claims, it will be
recommended that the Court decline to exercise supplemental
jurisdiction over any such claims.

United Mine Workers v. Gibbs,

383 U.S. 715, 726 (1966); Brooks v. Rothe, 577 F.3d 701, 709 (6th
Cir. 2009) (“If the federal claims are dismissed before trial,
the state claims generally should be dismissed as well”).
Finally, the Court notes that Mr. Starnes has not completed
service on defendants Sara Andrews and Damian Rodrigruez. See ECF
Doc. 7.

Consequently, the Court will recommend that Mr. Starnes’

claims against these defendants be dismissed without prejudice
under Fed.R.Civ.P. 4(m).

Any claims against them would, of

course, also be barred by the statute of limitations.
IV.

Recommendation

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For the reasons stated above, the Court recommends that the
motions to dismiss (Docs. 12 and 13) be granted.

It is further

recommended that the claims against Sara Andrews and Damian
Rodriguez be dismissed without prejudice pursuant to Fed.R.Civ.P.
4(m).
PROCEDURE ON OBJECTIONS
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

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