Hurst v. City and Citizens of Newark, Ohio et al

Filing 3

REPORT AND RECOMMENDATION: Magistrate Judge GRANTS 1 MOTION for Leave to Proceed in forma pauperis and RECOMMENDS this case be DISMISSED. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 4/2/2015. (agm1) (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
Mark E. Hurst,

:

Plaintiff,

:

v.

Case No. 2:14-cv-2601

:

State of Ohio Bureau of
Investigation and
Identification, et al.,
Defendants.

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
:

Mark E. Hurst,

:

Plaintiff,

:

v.

Case No. 2:14-cv-2657

:

Christian Robertson, et al.,
Defendants.

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

Mark E. Hurst,

:

Plaintiff,

:

v.

Case No. 2:14-cv-2658

:

City and Citizens of
Newark, Ohio, et al.,

:

JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
Defendants.

:

REPORT AND RECOMMENDATION
On December 12, 2014, Plaintiff Mark E. Hurst filed a motion
for leave to proceed in forma pauperis and a proposed civil
complaint in Case No. 2:14-cv-2601 seeking relief against
defendants the State of Ohio Bureau of Investigation and

Identification and Diamond Boggs.

On December 18, 2014, Mr.

Hurst filed a motion for leave to proceed in forma pauperis and a
proposed civil complaint in Case No. 2:14-cv-2657 seeking relief
against defendants Christian Robertson, Richard Day, and Jobes,
Henderson Assoc., et al. (“Jobes, Henderson Assoc.”).

Also on

December 18, 2014, Mr. Hurst filed a motion for leave to proceed
in forma pauperis and a proposed civil complaint in Case No.
2:14-cv-2658 seeking relief against defendants the City and
Citizens of Newark, Ohio, Newark Police Chief Green, Newark
Police Officer Trotter, Newark Police Officer Brandi Huffman, and
Newark Police Detective Robert Huffman.

On January 8, 2015, this

Court issued a related case memorandum, assigning Case No. 2:14cv-2601, Case No. 2:14-cv-2657, and Case No. 2:14-cv-2658 to the
same trial judge.
In Case No. 2:14-cv-2657, the Court granted Mr. Hurst’s
motion to proceed in forma pauperis.

This Court agrees that Mr.

Hurst qualifies financially for a waiver of the filing fee, and,
consequently, the motions to proceed in forma pauperis filed in
Case No. 2:14-cv-2601 (Doc. 1) and Case No. 2:14-cv-2658 (Doc. 1)
are GRANTED.

Because Mr. Hurst is not paying a filing fee,

however, his complaints in each case are subject to an initial
screening pursuant to 28 U.S.C. §1915(e)(2) and 28 U.S.C.
§1915(a).

For the following reasons, based on the Court’s review

of the complaints, it will be recommended that each case be
DISMISSED in its entirety.
I.

Factual Background

Mr. Hurst’s complaints relate to his conviction in the Court
of Common Pleas for Licking County, Ohio for pandering obscenity
involving a minor in violation of O.R.C. §2907.321(A)(5) (Count
I); pandering sexually-oriented matter involving a minor in
violation of O.R.C. §2907.322(A)(5) (Count II); and illegal use
of a minor in nudity-oriented material or performance, in
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violation of O.R.C. §2907.323(A)(3)(Count III).

Mr. Hurst was

sentenced to fifteen months of incarceration on Count I, an
additional fifteen months on Count II, and nine months on Count
III to be served consecutively, for a total sentence of thirtynine months of incarceration.

After serving all thirty-nine

months, Mr. Hurst was released.
In his complaint in Case No. 2:14-cv-2601, Mr. Hurst alleges
that the State of Ohio Bureau of Investigation and Identification
and its employee Diamond Boggs violated his civil and
constitutional rights by tampering with and withholding evidence
found on the computer he used at his place of employment,
Robertson Construction.

Evidence from the computer was

introduced at Mr. Hurst’s trial in the Court of Common Pleas for
Licking County, Ohio, which led to his conviction.

According to

Mr. Hurst, Ms. Boggs did not perform a complete and comprehensive
examination of the computer, she “cherry picked” the evidence
which she presented at trial, and she enlarged and improved the
resolution of the images found on the computer before presenting
them to jury.

(Doc. 1 at 5).

Finally, Mr. Hurst claims that Ms.

Boggs should have produced the entire history of the computer,
which he claims could have cleared him of any charges.

Based on

the foregoing, Mr. Hurst alleges that the State of Ohio Bureau of
Investigation and Identification and Ms. Boggs denied him a full
and fair trial in the Court of Common Pleas.
In his complaint in Case No. 2:14-cv-2657, Mr. Hurst alleges
that a different group of defendants also violated his civil and
constitutional rights.

More specifically, Mr. Hurst alleges that

Robertson Construction’s Chief Executive Officer, Christian
Robertson, instructed Richard Day, an employee of Jobes,
Henderson Assoc., to investigate the office computer suspected of
containing pornography.

Mr. Hurst explains that Jobes, Henderson

Assoc. was the company responsible for installing and maintaining
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the computer systems at Robertson Construction.

Mr. Hurst

alleges that once Mr. Day discovered “what he suspected was child
pornography,” it was illegal for him to continue to access the
computer under O.R.C. §2907.

(Doc. 1 at 6).

Mr. Hurst states

that, despite knowing this, Mr. Day:
accessed said computer no less than five (5) times,
post finding the alleged child pornography, and his
subordinate assistant, Todd (last name unknown) access
[sic] said computer two (2) times. Once to make (burn)
two (2) compact disks (CDs), and once to take said
computer off the Robertson Construction net-work.
Id. at 7.

Mr. Hurst alleges that Jobes, Henderson Assoc. is

liable based on the actions of its employee, Mr. Day.

In

addition, Mr. Hurst asserts that Mr. Robertson and Mr. Day were
acting as agents of the State of Ohio, making them subject to
liability under 42 U.S.C. §1983, because Mr. Robertson directed
Mr. Day to investigate the computer after being given the
authority to do so by Newark Ohio Police Officers Trotter and
Huffman.

Finally, Mr. Hurst alleges that Mr. Robertson made

false statements to Newark Police Officers regarding how long the
computer was in use and who used the computer prior to Mr.
Hurst’s employment at Robertson Construction.

Based on the

foregoing, Mr. Hurst states that Mr. Robertson and/or Robertson
Construction, Mr. Day, and Jobes, Henderson Assoc. violated his
right to a full and fair trial.
In his complaint in Case No. 2:14-cv-2658, Mr. Hurst alleges
that the City and Citizens of Newark, Ohio, Newark Police Chief
Green, Newark Police Officer Trotter, Newark Police Officer
Brandi Huffman, and Newark Police Detective Robert Huffman also
violated his civil and constitutional rights.

More specifically,

Mr. Hurst alleges that Police Chief Green failed to properly
train Newark police officers with respect to “investigating,
handling, gathering, and storing computers and computer

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evidence.”

(Doc. 1 at 6).

Mr. Hurst further alleges that,

because the City employed Police Chief Green and the citizens of
Newark, Ohio elected Police Chief Green to that position, they
are also responsible for his actions.

In particular, Mr. Hurst

maintains that Police Chief Green, along with Officers Trotter
and Huffman, is responsible for illegally directing Mr. Day, a
layperson, to “investigate [the] crime scene.”

Id.

Mr. Hurst

further alleges that Officer Huffman and Detective Huffman
handled evidence improperly.

On this basis, Mr. Hurst states

that the City and Citizens of Newark, Ohio, Newark Police Chief
Green, Newark Police Officer Trotter, Newark Police Officer
Huffman, and Newark Police Detective Huffman also violated his
right to a full and fair trial.
II. Legal Standard
The ability to proceed in forma pauperis was established by
Congress under 28 U.S.C. §1915 in order to provide greater means
of access to the judicial system for the indigent.
Hernandez, 504 U.S. 25, 31 (1992).

Denton v.

The statute allows, with

proper showing of financial need, a petitioner to proceed in an
action “without prepayment of fees or security thereof.”
U.S.C. §1915(a)(1).

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However, 28 U.S.C. §1915(e)(2) requires the

Court to “dismiss the case at any time if the court determines
that ... (B) the action or appeal (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.”

A suit is frivolous if it lacks any arguable

foundation in either fact or law.
319, 325 (1989).

Neitzke v. Williams, 490 U.S.

A complaint fails to state a claim upon which

relief can be granted, if, after accepting as true all wellpleaded allegations of the complaint, the allegations do not
“raise a right to relief above the speculative level.”
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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Bell Atl.

The Court is mindful

that pro se complaints are to be construed liberally in favor of
the pro se party. Haines v. Kerner, 404 U.S. 519 (1972); see also
Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991).

With these

standards in mind, the Court conducts an initial screening of Mr.
Hurst’s complaints.
III. Discussion
In Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the United
States Supreme Court held:
in
order
to
recover
damages
for
allegedly
unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a §1983
plaintiff must prove that the conviction or sentence
has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. §2254.
Id. (footnotes omitted).

Thus, when evaluating a §1983 claim

related to a conviction, the Court must determine whether
granting judgment in the plaintiff’s favor would undermine or
invalidate the conviction or sentence.

Id. at 487.

If it would,

the complaint must be dismissed unless there is evidence that the
conviction or sentence has been invalidated.

Id.

Because Mr. Hurst’s claims in each case involve, among other
things, an illegal search and tainting and destroying evidence
which ultimately led to his conviction, the Court concludes that
Heck bars these claims.

Although Mr. Hurst argues against this

conclusion by claiming that he is not challenging his sentence or
conviction, that any such challenge would be moot because the
statute of limitations has run with respect to such an action,
and, finally, that he has served his entire sentence and been
released from prison, clearly a ruling in Mr. Hurst’s favor would
undermine his conviction and sentence.

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Because Mr. Hurst does

not allege that his conviction or sentence has been invalidated,
he cannot successfully bring a §1983 claim for the claims
asserted.

See, e.g., Ruiz v. Hofbauer, 2009 WL 1421108, at *3

(6th Cir. May 20, 2009)(finding §1983 claims necessarily attacked
the validity of prisoner’s assault conviction); Bodle v.
Linhardt, 2013 WL 2481250, at *5-6 (M.D. June 10, 2013)(claims
that defendants withheld exculpatory evidence, destroyed or
failed to preserve exculpatory evidence, and tampered with other
evidence are barred by Heck).
Furthermore, even if one or more of Mr. Hurst’s claims were
not barred by Heck, they would likewise be subject to dismissal
based on statute of limitations grounds.

Although the statute of

limitations is normally an affirmative defense raised by
defendants in an answer, the district court may raise the issue
sua sponte if the “defense is obvious from the face of ... [the]
complaint.”

Boddie v. Barstow, et al., No. 14-3592, slip op. at

3 (6th Cir. Feb. 2, 2015), quoting Fogle v. Pierson, 435 F.3d
1252, 1258 (10th Cir. 2006)(internal quotation marks omitted).
The statute of limitations applicable to claims arising under 42
U.S.C. §1983 is two years.
553 (6th Cir. 2003).

See Banks v. Whitehall, 344 F.3d 550,

As the Court of Appeals observed recently,

the statute of limitations “generally begins to run when the
plaintiff knows or has reason to know of the injury that is the
basis of his action,” and a plaintiff “has reason to know of his
injury when he should have discovered it through the exercise of
reasonable diligence.”

Boddie, No. 14-3592, slip op. at 3,

citing Scott v. Ambani, 577 F.3d 642, 646 (6th Cir. 2009).
Mr. Hurst acknowledges that a two-year statute of
limitations applies to his claims, but he appears to argue that
the statute of limitations should be tolled based on a decision
relevant to his state court conviction issued by the State Court
of Appeals on December 20, 2012.

See Doc. 1 at 3 in Case No.
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2:14-cv-2601; Doc. 1 at 3 in Case No. 2:14-cv-2657; Doc. 1 at 3
in Case No. 2:14-cv-2658.

The relevant law, however, requires

the Court to examine when Mr. Hurst knew or had reason to know of
the injury that is the basis of his actions.

Here, all of the

conduct alleged in the complaints necessarily occurred before
August 6, 2008, the date of Mr. Hurst’s conviction.

Mr. Hurst

filed the complaint in Case No. 2:14-cv-2601 on December 12,
2014, and the complaints in Case No. 2:14-cv-2657 and Case No.
2:14-cv-2658 on December 18, 2014.

Consequently, it is clear

that the complaints were not filed within two years of the events
in question, and that the statute of limitations would bar
further prosecution of these cases.
IV. Recommended Disposition
Based upon the foregoing, it is recommended that
Case No. 2:14-cv-2601, Case No. 2:14-cv-2657, and Case No. 2:14cv-2658 be dismissed in their entirety.

Should this

recommendation be adopted, the Court should mail a copy of the
complaint, this Report and Recommendation, and the Court’s order
of dismissal to the defendants.
V. 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.
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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 a 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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