Rogers v. Reed et al

Filing 61

ORDER and REPORT AND RECOMMENDATION re 57 MOTION for Reconsideration filed by Reese Thompson, Manard Reed. It is RECOMMENDED that the Court DENY Defendants' Motion ECF No. 57 . In addition, in light of the resolution of State v. Rogers, Jefferson County Case No. 14CR012, ECF No. 53 is VACATED. Objections to R&R due by 10/26/2018. Signed by Magistrate Judge Chelsey M. Vascura on 10/12/2018. (daf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ALTERIK ROGERS,
Plaintiff,
Civil Action 2:14-cv-2750
Judge Michael H. Watson
Magistrate Judge Chelsey M. Vascura

v.

SGT. MANARD REED, et al.,
Defendants.

ORDER and REPORT AND RECOMMENDATION
This matter is before the undersigned for a Report and Recommendation on Defendants’
Motion for Reconsideration (ECF No. 57), seeking reconsideration of the Court’s denial of
summary judgment to Defendants Sgt. Reed and Officer Thompson on Plaintiff’s excessive force
claim against them in their individual capacities. (July 13, 2017 Order, ECF No. 52.) For the
reasons that follow, it is RECOMMENDED that Defendants’ Motion for Reconsideration be
DENIED. In addition, in light of the resolution of State v. Rogers, Jefferson County Case No.
14CR012, the stay ordered in the Court’s July 20, 2017 Order (ECF No. 53) is VACATED.
I.
The undersigned incorporates by reference the factual and procedural background set forth
in Magistrate Judge Kemp’s June 21, 2017 Report and Recommendation (ECF No. 50).
In that Report and Recommendation, Magistrate Judge Kemp recommended denying
summary judgment to Defendants Sgt. Reed and Officer Thompson on Plaintiff’s
individual-capacity excessive force claim arising under the Due Process Clause of the Fourteenth

Amendment. In recommending denial of summary judgment, Magistrate Judge Kemp concluded
that the record reflects material disputes about what threats Plaintiff made, whether he resisted
while en route to segregation, and what force Defendants applied. The parties did not object to
the Report and Recommendation, and the Court adopted it, denying summary judgment on the
at-issue excessive force claims. (July 13, 2017 Order, ECF No. 52.)
In the subject Motion, Defendants seek reconsideration of the Court’s ruling on Plaintiff’s
excessive force claim against Defendants Sgt. Reed and Officer Thompson based upon Plaintiff’s
recent conviction for menacing by stalking in State v. Rogers, Case No. 14CR00012, in the
Jefferson County Court of Common Pleas. In support of this Motion, Defendants attach the
docket sheet from Plaintiff’s state-court criminal case and reference the copies of the Serious
Incident Reports they attached to their Motion for Summary Judgment. Defendants argue that the
statements reflected in the Serious Incident Reports (ECF Nos. 42-4, 42-5, 42-6) must be admitted
as a matter of law because Plaintiff’s plea includes his admission to those narratives.
Plaintiff opposes Defendants’ Motion, asserting that he has neither admitted to nor
accepted the narratives reflected in the Serious Incident Reports. (ECF No. 59.) Plaintiff asserts
that he instead entered an Alford Plea to the menacing and stalking charge. He also maintains that
he should be able to pursue his excessive force claims even if he did make the threatening
comments alleged in the Serious Incident Reports.
In their Reply (ECF No. 60), Defendants point out that Plaintiff pleaded “no contest” to the
menacing and stalking charge and argue that this Court should enter judgment on the excessive
force claim regardless of whether the conviction was obtained through an Alford or no-contest
plea.

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The public docket attached to Defendants’ Motion reflects that on August 22, 2018,
Plaintiff entered a “no contest” plea to Count 3 of the Indictment, Ohio Revised Code §
2903.211(A)(1) and (B)(1)(b). (ECF No. 57-1 at p. 5.)
II.
Under Federal Rule of Civil Procedure 54(b), “any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all
the parties . . . may be revised at any time before entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). In addition, “[d]istrict courts
have inherent power to reconsider interlocutory orders and reopen any part of a case before entry
of final judgment.” Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991) (citing Marconi
Wireless Tel. Co. v. United States, 320 U.S. 1, 47-48 (1943)). A court properly reconsiders an
interlocutory order “‘whe[re] there is (1) an intervening change of controlling law; (2) new
evidence available; or (3) a need to correct a clear error or prevent manifest injustice.’”
Louisville/Jefferson Cnty. Metro Gov’t v. Hotles.Com, L.P., 590 F.3d 381, 389 (6th Cir. 2009)
(quoting Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir.
2004)). That said, “[a] motion for reconsideration ‘should not be used to re-litigate issues
previously considered.’” Cockshutt v. State Dep’t of Rehab. & Corr., No. 2:12-cv-532, 2013 WL
4052914, *14 (S.D. Ohio Aug. 9, 2013) (quoting Am. Marietta Corp. v. Essroc Cement Corp., 59
F. App’x 668, 671 (6th Cir. 2003)).
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial burden of

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proving that no genuine issue of material fact exists, and the court must draw all reasonable
inferences in the light most favorable to the nonmoving party.” Stansberry v. Air Wisconsin
Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed. R. Civ. P.
56(e)(2) (providing that if a party “fails to properly address another party’s assertion of fact” then
the Court may “consider the fact undisputed for purposes of the motion”).
The burden then shifts to the nonmoving party to “set forth specific facts showing that there
is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “The
evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his
favor.” Id. at 255 (citation omitted). “The nonmovant must, however, do more than simply
show that there is some metaphysical doubt as to the material facts, . . . there must be evidence
upon which a reasonable jury could return a verdict in favor of the non-moving party to create a
genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson Cty., 432 F. App’x 435, 441 (6th
Cir. 2011) (internal quotation marks and citations omitted), cert. denied, 565 U.S. 1157 (2012); see
also Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely disputed to “cit[e]
to particular parts of materials in the record”). “When a motion for summary judgment is
properly made and supported and the nonmoving party fails to respond with a showing sufficient
to establish an essential element of its case, summary judgment is appropriate.” Stansberry, 651
F.3d at 486 (citing Celotex, 477 U.S. at 322–23).
III.
The undersigned finds that Plaintiff’s menacing and stalking conviction does not require
dismissal of his excessive force claim against Defendants Sgt. Reed and Officer Thompson.
Although Defendants cite no authority in support of their position that Plaintiff’s

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state-court conviction prevents him from proceeding on his excessive-force claim, they appear to
be relying upon the Heck doctrine. In Heck v. Humphrey, the United States Supreme Court held
that, in assessing a claim under 42 U.S.C. § 1983, a court “must consider whether a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” 512
U.S. 477, 487 (1994). If the claim would render a conviction or sentence invalid, “the complaint
must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already
been invalidated.” Id. Courts now refer to this requirement as the “favorable termination rule.”
As a threshold matter, the undersigned notes that for purposes of Heck, an Alford plea or a
no contest plea (a nolo contendere plea) is a plea of guilty that constitutes a criminal conviction.
See United States v. McMurray, 653 F.3d 367, 381 (6th Cir. 2011) (“For a conviction resulting
from an Alford-type guilty plea, the defendant has necessarily admitted to the elements of the
charge but not necessarily the underlying factual basis (internal quotation marks and citation
omitted)); United States v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995) (“We hold today that there is
no difference in the requirements of Fed.R.Crim.P. 11(f) for a defendant who pleads guilty and
admits to acts constituting the crime and a defendant who pleads guilty but who either 1)
affirmatively protests his innocence or 2) refuses to admit to acts constituting the crime; that is,
either of the two possible Alford-type guilty pleas.”); Thomason v. Harris, No. 3:05-CV-161-H,
2006 WL 1549003, at *2 (W.D. Ky. June 2, 2006) (finding excessive force claim Heck-barred and
noting that the entry of an “Alford plea” was a criminal conviction); Calixte v. Briggs, No.
3:10-cv-2838, 2011 WL 4732852, at *1-2 (N.D. Ohio Oct. 5, 2011) (finding the plaintiff’s § 1983
excessive force claims Heck-barred where could have raised the assault as a defense and instead
entered an Alford plea to assault under Ohio law); Havens v. Johnson, 783 F.3d 776, 784 (10th Cir.

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2015) (“[T]he Heck doctrine derives from the existence of a valid conviction, not the mechanism
by which the conviction was obtained . . ., so it is irrelevant that [the plaintiff] entered an Alford
plea.”); Ojegba v. Murphy, 178 F. App’x 888, 888 (11th Cir. 2016) (upholding trial court’s
determination that excessive force claim was Heck-barred, noting that “[t]he fact that in this case
the plea was an Alford plea is of no consequence”); Payton v. Normand, 599 F. App’x 190, 192
(5th Cir. 2015) (holding that Heck “applies equally to Alford pleas” (citation omitted)); Green v.
Chvala, 567 F. App’x 458, 459 (7th Cir. 2014) (“Like any plea, an Alford plea results in a
conviction to which Heck applies.”).
The Sixth Circuit has recently explained that Heck operates to bar a § 1983 claim in two
circumstances:
In this Circuit, there are two circumstances under which Heck may apply to bar a §
1983 claim. “The first is when the criminal provision makes the lack of excessive
force [or the lack of an illegal entry] an element of the crime.” Schreiber v. Moe,
596 F.3d 323, 334 (6th Cir. 2010) (citing Heck, 512 U.S. at 486 n. 6, 114 S.Ct.
2364). “The second is when excessive force [or illegal entry] is an affirmative
defense to the crime . . . . ” Id. (citing Cummings v. City of Akron, 418 F.3d 676,
684 (6th Cir. 2005), for the proposition that “an assault conviction barred an
excessive-force claim because the plaintiff did not raise excessive force as a
defense.”). See also Gottage v. Rood, 533 F. App’x 546, 550 (6th Cir. 2013);
Walker v. City of Lebanon, No. 3:12–CV–855–H, 2013 WL 6185402, at *4 (W.D.
Ky. Nov. 25, 2013). In each of these circumstances, the § 1983 suit would “seek[
] a determination of a fact that, if true, would have precluded the conviction.”
Schreiber, 596 F.3d at 334. Therefore, in this Circuit, if a plaintiff asserts a claim
that contradicts an element of an underlying criminal offense, or if that claim could
have been asserted in criminal court as an affirmative defense, Heck applies to bar
the § 1983 suit.
Hayward v. Cleveland Clinic Found., 759 F.3d 601, 608-09 (6th Cir. 2014).
Generally, excessive force claims “do not run afoul of Heck because the question of the
degree of force used by a police or corrections officer is analytically distinct from the question
whether the plaintiff violated the law.” Huey v. Stine, 230 F.3d 226, 230 (6th Cir. 2000),
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overruled in part on other grounds by Muhammad v. Close, 540 U.S. 749, 754–55 (2004);
Swiecicki v. Delgado, 463 F.3d 489, 493 (6th Cir. 2006), abrogated on other grounds by Wallace
v. Kato, 549 U.S. 384 (2007) (noting that “a claim of excessive force does not necessarily relate to
the validity of the underlying conviction and therefore may be immediately cognizable” (citation
omitted)). In other terms, “[w]here there is room for the facts alleged by the plaintiff and the facts
essential to the judgment . . . to peacefully co-exist, the § 1983 [claim] must be allowed to go
forward.” Lockett v. Suardini, 526 F.3d 866, 873 (6th Cir. 2008) (internal citations and
quotations omitted). Courts must therefore “look both to the claims raised under § 1983 and to
the specific offenses for which the § 1983 claimant was convicted.” Schrieber v. Moe, 596 F.3d
323, 334 (6th Cir. 2010) (internal quotation marks and citation omitted).
In addition, claims for excessive force are not subject to Heck’s bar when the alleged
excessive force was applied after the activity giving rise to the conviction. Sigley v. Kuhn, Nos.
98–3977, 99–3531, 2000 WL 145187, at *4 (6th Cir. Jan. 31, 2000) (holding that excessive force
occurring after the plaintiff’s resistance and arrest would not necessarily imply the invalidity of the
underlying conviction for resisting arrest); Lassen v. Lorain Cnty., Ohio, No. 1:13-cv-1938, 2014
WL 3511010, at *4 (N.D. Ohio July 14, 2014) (“Heck’s bar does not apply when the alleged
excessive force was applied after an arrest.” (citing Michaels v. City of Vermillion, 539 F. Supp. 2d
975, 992 (N.D. Ohio 2008)). Thus, “a court must carefully examine the facts and the temporal
sequence of the underlying offense and the alleged unconstitutional conduct . . . .” Hayward, 759
F.3d at 612.
Here, Plaintiff’s version of the facts with respect to his § 1983 excessive force claim do not
contradict an element of the underlying offense to which he pleaded guilty, namely, menacing and

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stalking under Ohio Revised Code § 2903.211(A)(1) and (B)(1)(b), as charged in Count Three of
the Indictment (ECF No. 42-2). The crime of “menacing by stalking” is proscribed by Ohio
Revised Code § 2903.211(A)(1), which provides that “[n]o person by engaging in a pattern of
conduct shall knowingly cause another person to believe that the offender will cause physical harm
to the other person or cause mental distress to the other person.” Ohio Rev. Code §
2903.211(A)(1). Count Three of the state-court Indictment, to which Plaintiff pleaded guilty,
states that Plaintiff “did, knowingly engage in a pattern of conduct causing [Defendant Sgt. Reed]
to believe that [Plaintiff] would cause physical harm to [Defendant Sgt. Reed] by making a threat
of physical harm to or against [Defendant Sgt. Reed].” (Indictment 3, ECF No. 42-2 (emphasis
added).) Defendants have not attached Plaintiff’s plea agreement or any other document
outlining the allegations supporting Plaintiff’s plea. Defendants reference the Serious Incident
Reports the attached to their Motion for Summary Judgment (ECF Nos. 42-4, 42-5, 42-6), but
nothing in the record reflects that Plaintiff admitted the allegations contained in these Reports or
that the state-court judge relied upon the statements in the Reports to accept Plaintiff’s guilty plea.
See Fed. R. Civ. P. 56(c)(1) (party asserting a fact must support the assertion with record
evidence); see also Fed. R. Civ. P. 56(3) (“The Court need consider only the cited materials . . . .”).
Even assuming that Plaintiff’s guilty plea was premised upon the verbal threats alleged in the
Serious Incident Reports, Plaintiff’s plea is not necessarily incompatible with his § 1983
excessive-force claim because success on this claim would not deprive his conviction for
menacing and stalking of a factual basis. That is, it is possible that Plaintiff made verbal threats
that violated Ohio Revised Code § 2903.211(A)(1) and that Defendants employed excessive force
as Plaintiff alleges. Under these circumstances, Plaintiff’s conviction does not operate to bar his

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§ 1983 excessive force claim. See Lockett, 526 F.3d at 873 (courts must permit § 1983 claims to
go forward notwithstanding conviction “[w]here there is room for the facts alleged by the plaintiff
and the facts essential to the [conviction] . . . to peacefully co-exist” (citations omitted)).
Because Plaintiff’s § 1983 excessive force claims against Defendants Sgt. Reed and
Officer Thompson are analytically distinct from whether he was guilty of menacing and stalking
under Ohio Revised Code § 2903.211(A)(1), it is RECOMMENDED that the Court conclude that
his state-court conviction does implicate Heck and that the Defendants’ Motion for
Reconsideration be DENIED.
IV.
For the reasons set forth above, it is RECOMMENDED that the Court DENY
Defendants’ Motion for Reconsideration. (ECF No. 57.) In addition, in light of the resolution of
State v. Rogers, Jefferson County Case No. 14CR012, the stay ordered in the Court’s July 20, 2017
Order (ECF No. 53) is VACATED.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) 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).

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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).
IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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