Battle v. Tottman

Filing 10

REPORT AND RECOMMENDATION that 6 MOTION to Dismiss MOTION for Summary Judgment be granted Objections to R&R due by 1/4/2017. Signed by Magistrate Judge Terence P. Kemp on 12/21/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Billy Battle,

:

Plaintiff,

:

v.

:

Case No. 2:16-cv-00208

:

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

Michael Tottman, et. al.,
Defendants.

:

REPORT AND RECOMMENDATION
Plaintiff, Billy Battle, a state prisoner currently confined
in the Southeastern Correctional Facility in Lancaster, Ohio,
filed this action under 42 U.S.C. §1983 against Michael Tottman,
a bailiff of the Morgan County, Ohio Court of Common Pleas,
asserting a violation of both his due process rights and his
right to counsel.

Mr. Tottman filed a motion to dismiss pursuant

to Rule 12(b)(1) of the Federal Rules of Civil Procedure or, in
the alternative, a motion for summary judgment (Doc. 6).
Battle filed a response.

Mr.

Mr. Tottman did not file a reply and

the motion is now ripe for decision.

For the following reasons,

it will be recommended that the motion for summary judgment be
granted.
I. Factual Background
Mr. Battle’s complaint is not a model of clarity.
Nonetheless, for purposes of the current motion, the Court has
distilled some of the following facts from the complaint.

In

doing so, the Court notes that, at times, the complaint reads
like a petition for a writ of habeas corpus and frequently refers
to Mr. Battle as “Petitioner.”

Additionally, some of the

following facts are taken from the evidentiary materials
submitted by the parties in connection with Mr. Tottman’s motion.
On November 29, 2007, Mr. Battle was indicted by a Morgan
County grand jury on five counts, including felonious assault,
obstructing justice, domestic violence, aggravated menacing with
a firearm specification, and resisting arrest with a firearm
specification.

Following rulings on various pretrial motions, a

jury trial was scheduled for either August 26 or 28, 2008.

The

court continued the trial on its own motion and held a hearing on
that date instead.

Mr. Tottman was the bailiff responsible for

recording the hearing.

The complaint specifically states:

22. On August 26, 2008, a jury trial was
scheduled in Defendant’s court. Defendant was the
bailiff responsible for recording the hearing.
Defendant pressed the button to record the hearing and
pressed the button to stop the hearing when it was
finished. He took the tape and put it with the other
hearings. He would later claim this hearing did not
take place. He would later claim that this tape did
not exist. It was not produced until after the appeal
in this matter.
Ultimately, a jury trial was held in May, 2009 and Mr.
Battle was convicted on three counts, including felonious
assault, obstruction of official business, and resisting arrest.
On November 24, 2009, Mr. Battle was sentenced to ten years of
incarceration.

He filed a notice of appeal that day.

In

connection with his direct appeal, Mr. Battle’s counsel requested
records from Dawn Hosom, the court reporter.

The transcript of

the motion hearing held in August, 2008 was among the items
requested from Ms. Hosom, but it was not provided.
On direct appeal, Mr. Battle raised an assignment of error
directed to the denial of his right to a speedy trial.

On

September 13, 2010, the Fifth District Court of Appeals affirmed
Mr. Battle’s conviction and sentence.

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The state appellate court

concluded that Mr. Battle was responsible for the delays in his
case and that he had waived his right to a speedy trial.
Following the direct appeal process (which concluded in
2011), Mr. Battle, through counsel, filed a motion for delayed
appeal on April 11, 2012.

The basis for this delayed appeal was

the incomplete record and specifically the missing transcript
from the August 26, 2008 hearing.

From Mr. Battle’s perspective,

the time period following the continuance of the trial scheduled
in August, 2008, was charged against him even though it resulted
from the trial court’s sua sponte action.

Mr. Battle believed

that the missing transcript would confirm this fact, making the
transcript critical to his speedy trial assignment of error.

In

Mr. Battle’s view, had the trial court properly certified the
entire record on appeal, the appellate court would have sustained
his speedy trial claim.

Mr. Battle’s motion for delayed appeal

was denied on April 19, 2012.
Subsequently, proceeding pro se, Mr. Battle filed a series
of motions addressed to the issue of the missing hearing
transcript.

These motions included, in part, an application to

re-open his direct appeal, a motion to set aside the appellate
court’s judgment, and a mandamus petition.

All of Mr. Battle’s

motions were denied.
On March 13, 2013, Mr. Battle filed a state court lawsuit
against court reporter Ms. Hosom contending that she had withheld
the hearing transcript.

Ms. Hosom prevailed on summary judgment.

Based on these facts, Mr. Battle sets forth two claims in
his complaint.

He explains his first claim, which he

characterizes as a violation of his due process rights, as
follows:
40. Defendant’s purposeful action denied the
Plaintiff his right to have a meaningful appeal of his
conviction and sentence. Plaintiff has a right to
effective assistance during the appellate process.
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Plaintiff has a right to all of the transcripts he
requested. This transcript was requested by docketing
statement, letter to the court reporter, and orally
numerous times.
41. Defendant has denied the Plaintiff his right
to due process. Defendant has done so under the color
of state law and in his capacity as a court employee.
42. As a result of Defendant’s actions Plaintiff
has been denied the meaningful review of his conviction
and sentence.
43. Plaintiff is requesting damages in excess of
the statutory amount.
44.

Plaintiff is also requesting attorney’s fees.

In his second claim, which he characterizes as a denial of
his right to counsel, Mr. Battle alleges that, as a result of Mr.
Tottman’s actions, his appellate counsel could not render Mr.
Battle effective assistance because he could not challenge all of
the issues raised in the August 26, 2008 hearing.

Specifically,

he states:
49. Plaintiff’s counsel must have all of the
transcripts in a criminal case in order to determine
what claims would be raised. Defendant denied his
counsel access to all of the transcripts. In fact,
this transcript was not provided until after the Ohio
Supreme Court decided to decline jurisdiction.
50. Plaintiff has a right to effective assistance of
counsel during his appeal. Defendant’s actions caused
Plaintiff’s counsel to fall below an objective level of
care. Specifically, counsel did not have all of the
transcripts and therefore was denied the ability to
challenge the issues raised in the August 26, 2008 hearing.
These related to the speedy trial rights of the Plaintiff
and two other issues. This prejudiced Plaintiff because he
had valid, colorable claims on appeal.
II.

Defendant’s Motion

Initially, Mr. Tottman moved to dismiss the complaint based
on the Rooker-Feldman doctrine.

Mr. Tottman argued that Mr.
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Battle is seeking appellate review of state court proceedings,
particularly the ruling on his motion for leave to file a delayed
appeal, which was based on the omitted transcript.

Mr. Tottman

contends that state courts have reviewed, numerous times, the
issue of the transcript’s omission and have denied all of Mr.
Battle’s appeals concerning the transcript.
Alternatively, Mr. Tottman moved for summary judgment on
four grounds.

First, Mr. Tottman contends that Mr. Battle’s due

process claim must fail because Mr. Tottman was not responsible
for the omission of the transcript from the record in Mr.
Battle’s case.

Mr. Tottman contends that he did not record the

hearing in question, did not believe that the hearing had
occurred, was not responsible for filing the tape of the hearing,
did his best to locate the tape when asked, and eventually found
it, though it had been misfiled.
Mr. Tottman also argues in the alternative that, even with
the omission of the transcript from the appellate record, Mr.
Battle’s due process rights were not violated.

Mr. Tottman

points to the various appeals Mr. Battle filed in state court and
the state appellate court’s rejection of Mr. Battle’s speedy
trial assignment of error.

Thus, according to Mr. Tottman, the

missing transcript did not raise any appealable issues.
Further, Mr. Tottman asserts that Mr. Battle’s claim that he
was denied the right to counsel cannot succeed because Mr.
Battle’s argument is a mere recapitulation of his claims
concerning the omitted transcript.

Mr. Tottman explains that,

because under Ohio law, defendants, and by implication
defendants’ counsel, are only entitled to a full and complete,
albeit not perfect, transcript in capital cases, it logically
follows that the transcript in Mr. Battle’s criminal case need
not be perfect either.

In short, Mr. Tottman contends that

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because Mr. Battle had an attorney throughout his criminal case,
his right to counsel was never violated.
Additionally, Mr. Tottman argues that this action is barred
by the statute of limitations.

According to Mr. Tottman, the

statute of limitations on Mr. Battle’s §1983 claim, which is two
years in Ohio, began to run on December 7, 2009, the date on
which Mr. Battle alleged in his state court proceeding against
Ms. Hosom that he was first denied his transcript.

Finally, Mr.

Tottman argues that he is entitled to qualified immunity.
In response to Mr. Tottman’s reliance on the Rooker-Feldman
doctrine, Mr. Battle contends that he is, in fact, not appealing
a state-court judgment, because no state court has definitively
ruled on whether the omission of the transcript from the record
violated Mr. Battle’s due process rights.

Thus, a favorable

ruling in this case would not reverse any state-court decisions,
and the Rooker-Feldman doctrine does not apply.
Turning to the motion for summary judgment, Mr. Battle first
contends summary judgment is not appropriate because discovery
has not yet been undertaken.

More substantively, Mr. Battle

contends that a genuine issue exists as to whether Mr. Tottman
“was the person who started the tape recorder or not.”
Regarding his right to counsel claim, Mr. Battle asserts
that he is not asking for perfection but instead for what the
Constitution requires — that is, a full and complete transcript.
Mr. Battle contends that Mr. Tottman was not only responsible for
recording the hearing and later claiming that the transcript did
not exist but also decided which portions of the transcript of
the hearing to provide to Mr. Battle’s appellate counsel.
In response to Mr. Tottman’s statute of limitations
argument, Mr. Battle explains that he did not know until 2014
that Mr. Tottman was responsible for the omission of the
transcript from the record.

Mr. Battle states that, in 2009, he
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only knew that Mr. Tottman was present at the hearing and that
important matters were discussed.

According to Mr. Battle, even

now he is not sure whether Mr. Tottman or the John Doe defendant
recorded the hearing.
Finally, Mr. Battle contends that Mr. Tottman is not
entitled to qualified immunity.

His argument on this point is

brief and inconsistent with his statute of limitations argument.
That is, in challenging Mr. Tottman’s defense of qualified
immunity, Mr. Battle contends that Mr. Tottman recorded the
hearing and acted deliberately in depriving him of the
transcript.
III.

Rule 12(b)(1)

As noted, Mr. Tottman initially has moved to dismiss the
complaint under Fed.R.Civ.P. 12(b)(1).

Because a challenge to

the Court’s subject-matter jurisdiction presents a threshold
issue, the Court will address this issue first.
A.

Legal Standard

In response to a Rule 12(b)(1) motion challenging subject
matter jurisdiction, “the plaintiff has the burden of proving
jurisdiction in order to survive the motion.”

Moir v. Greater

Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th Cir.
1990).

Motions to dismiss for lack of subject matter

jurisdiction fall into two general categories:
and factual attacks.
(6th Cir. 1994).

facial attacks

United States v. Ritchie, 15 F.3d 592, 598

“A facial attack is a challenge to the

sufficiency of the pleading itself.

On such a motion, the court

must take the material allegations of the petition as true and
construed in the light most favorable to the nonmoving party.”
Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235–37 (1974).

A

factual attack, by contrast, is a challenge to the factual
existence of subject matter jurisdiction. Id.

On such a motion,

the facts alleged in the complaint are not presumptively true,
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and the Court is free to weigh evidence in order to satisfy
itself that it has jurisdiction.

Id. (citing Ohio Nat'l Life

Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)).
Since Mr. Tottman has made a facial attack on Mr. Battle’s
complaint, the Court will take all material allegations in the
complaint as true and will construe them in Mr. Battle’s favor
for the purpose of considering Mr. Tottman’s motion to dismiss.
B.

Analysis

The basis for Mr. Tottman’s jurisdictional argument is the
Rooker-Feldman doctrine.

In making this argument, however, Mr.

Tottman relies on an interpretation of the Rooker-Feldman
doctrine that predates the decision of the United States Supreme
Court in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005).

The current understanding of the doctrine,

following Exxon, has been explained as follows:
The Rooker-Feldman doctrine precludes “lower
federal courts ... from exercising appellate
jurisdiction over final state-court judgments.” Skyway
Inv. Corp. v. Tushman, 541 F.App’x 536, 538 (6th Cir.
2013)(quoting Lance v. Dennis, 546 U.S. 459, 463
(2006)). The doctrine is “confined to cases ...
brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the
district court proceedings commenced and inviting
district court review and rejection of those
judgments.” Id. (quoting Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005)). Subject
matter jurisdiction is lacking under the Rooker-Feldman
doctrine if: (1) the plaintiff is “the losing party in
state court,” Id. (quoting Skinner v. Switzer, 562 U.S.
521 (2011); and (2) the plaintiff is asking the
district court to “‘review and reject [] those
judgments, which were ‘rendered before the district
court proceedings commenced,’” Id. (quoting Exxon Mobil
Corp., 544 U.S. at 284). “The pertinent inquiry ... is
whether the ‘source of the injury’ upon which [the]
plaintiff bases his federal claim is the state court
judgment, not simply whether the injury complained of
is ‘inextricably intertwined’ with the state-court
judgment.” Id. (quoting Kovacic v. Cuyahoga Cnty.
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Dep’t of Children and Family Servs., 606 F.3d 301, 309
(6th Cir. 2010)(quoting McCormick v. Braverman, 451
F.3d 382, 394 (6th Cir. 2006)).
Kasidonis v. State Auto Insurance Agency, 2016 WL
1337288, *4 (S.D. Ohio March 31, 2016).
Here, Mr. Battle is not claiming injury from a state court
judgment.

Instead, he is seeking damages for Mr. Tottman’s

alleged actions.

As Mr. Battle points out, no state court has

addressed this issue.

While the judgments of the state appellate

courts may have preclusive effect in this case, no judgment in
this case would directly overrule any prior judgments in state
court.

Under this circumstance, the Rooker-Feldman doctrine does

not operate to preclude this Court’s subject matter jurisdiction.
For this reason, the Court will not recommend granting Mr.
Tottman’s motion to the extent it seeks dismissal under Rule
12(b)(1).
IV.

Motion for Summary Judgment
A.

Legal Standard

As explained above, Mr. Tottman also has moved for summary
judgment on several grounds.

Summary judgment is not a

substitute for a trial when facts material to the Court’s
ultimate resolution of the case are in dispute.

It may be

rendered only when appropriate evidentiary materials, as
described in Fed. R. Civ. P. 56(c), demonstrate the absence of a
material factual dispute and the moving party is entitled to
judgment as a matter of law.
Inc., 368 U.S. 464 (1962).

Poller v. Columbia Broad. Sys.,
The moving party bears the burden of

demonstrating that no material facts are in dispute, and the
evidence submitted must be viewed in the light most favorable to
the nonmoving party.
(1970).

Adickes v. S.H. Kress & Co., 398 U.S. 144

“[I]f the evidence is insufficient to reasonably support

a jury verdict in favor of the nonmoving party, the motion for
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summary judgment will be granted.”

Cox v. Kentucky Dept. of

Transp., 53 F.3d 146, 150 (6th Cir. 1995)(citation omitted).
Additionally, the Court must draw all reasonable inferences from
that evidence in favor of the nonmoving party.
Diebold, Inc., 369 U.S. 654 (1962).

United States v.

The nonmoving party does

have the burden, however, after completion of sufficient
discovery, to submit evidence in support of any material element
of a claim or defense on which that party would bear the burden
of proof at trial, even if the moving party has not submitted
evidence to negate the existence of that material fact.

See

Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986).

Of course, since “a

party seeking summary judgment ... bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of [the record] which
it believes demonstrate the absence of a genuine issue of
material fact,” Celotex, 477 U.S. at 323, the responding party is
only required to respond to those issues clearly identified by
the moving party as being subject to the motion.
B.

Analysis

Among the issues Mr. Tottman raises on summary judgment is
that Mr. Battle’s claims are barred by the applicable statute of
limitations.

Because this also is a threshold issue, the Court

will address it first in considering the summary judgment portion
of Mr. Tottman’s motion.
1.

The Statute of Limitations

The parties agree that Mr. Battle’s §1983 claim is subject
to Ohio's two-year statute of limitations for claims of bodily
injury, R.C. §2305.10.

See, e.g., LRL Properties v. Portage

Metro Housing Authority, 55 F.3d 1097 (6th Cir. 1995).

The

parties disagree, however, on when the statute of limitations
began to run.
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Although state law governs the limitations period for
actions filed pursuant to §1983, federal law governs when the
limitations period begins to run.
388 (2007).

Wallace v. Kato, 549 U.S. 384,

The limitations period begins to run when the cause

of action accrues; that is, when the Plaintiff “knows or has
reason to know of the injury which is the basis of his action.

A

plaintiff has reason to know of his injury when he should have
discovered it through the exercise of reasonable diligence.”
Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005), quoting
Sevier v. Turner, 742 F.2d 262, 273 (6th Cir. 1984).
In determining when a plaintiff knows or has reason to know
of the injury, courts use a “common-sense” approach, considering
“what event should have alerted the typical lay person to protect
his or her rights.” Id., quoting Hughes v. Vanderbilt Univ., 215
F.3d 543, 548 (6th Cir. 2000).

This is known as the “discovery

rule.”
Applying these principles, Mr. Tottman argues that Mr.
Battle’s claim accrued on December 7, 2009.

According to Mr.

Tottman, in Mr. Battle’s lawsuit against Ms. Hosom, this was the
date on which Mr. Battle alleged that she had violated his rights
by refusing to produce the transcript.

Alternatively, Mr.

Tottman contends that Mr. Battle knew of his injury no later than
March 18, 2013, when he filed his suit against Ms. Hosom.

In

either circumstance, Mr. Tottman asserts, the statute of
limitations on Mr. Battle’s §1983 claim had run well before Mr.
Battle filed his complaint in this case on March 8, 2016.
In response, Mr. Battle contends that the statute of
limitations did not begin to run until after the state court
found in 2014 that Ms. Hosom was not responsible for the omission
of the transcript from the appellate record.

As he states, “[i]t

was not until 2014 when summary judgment was granted in the civil
matter in state court that Plaintiff understood that it was the
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Defendant who failed to provide this transcript to him and his
attorney for appellate litigation.”

Mr. Battle further explains

that in fact, as of May 16, 2014, he did not know, and still does
not know, who recorded the hearing in question.
The Court’s starting point in considering the statute of
limitations defense applicable to Mr. Battle’s §1983 claims is
the specific injury he is claiming.

Mr. Battle’s asserted injury

is the denial of the transcript of the August, 2008 hearing which
he alleges violated both his due process rights and his right to
counsel.

Mr. Battle believes that the availability of this

transcript would have allowed him to prevail on a speedy trial
issue in his direct appeal.
Mr. Tottman contends that Mr. Battle was aware of this
alleged injury as early as December, 2009 and certainly no later
than March, 2013.

The complaint itself asserts that a motion for

delayed appeal on the basis of the missing transcript was filed
on Mr. Battle’s behalf on April 11, 2012.

Any one of these dates

supports a recommendation of dismissal on the ground that this
action is time-barred.

In an effort to avoid this result,

however, Mr. Battle asserts that the statute of limitations did
not begin to run until he was able to identify Mr. Tottman as the
allegedly responsible party.
Mr. Battle’s position demonstrates a fundamental
misunderstanding of the governing law.

Mr. Battle seems to be

suggesting that his §1983 claim cannot be found to have accrued
for statute of limitations purposes until he became aware of Mr.
Tottman’s alleged role in denying access to the transcript.

Mr.

Battle’s suggestion is inconsistent with established precedent.
In Easterly v. Budd, 2006 WL 2404143 (N.D. Ohio Aug. 18, 2006),
the plaintiff made a similar argument in seeking to avoid the
two-year statute of limitations.

In that case, the plaintiff

contended that the limitations period began to run on the
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earliest date that “‘a reasonably prudent person would have been
aware of all state actors and co-conspirators responsible for the
violation of Plaintiff’s constitutional rights.’”

Id., at *8.

In rejecting that argument, the court explained:
... Federal procedural law provides that a
plaintiff need not be aware of every detail or person
involved in causing his injury for the limitations
period to commence. See Mounts v. Grand Trunk Western
R.R., 198 F.3d 578 (6th Cir.2000) (holding that under
the discovery rule, a cause of action “accrues” when an
employee knows of the injury and its cause, not from
discovery of legal liability); New Castle County v.
Halliburton NUS Corp., 111 F.3d 1116 (3d Cir. 1997)
(holding that the discovery rule does not delay the
running of the statute of limitations until a plaintiff
is aware of all the facts, including identification of
every party who may be liable on its claim); Compton v.
Ide, 732 F.2d 1429, 1433 (9th Cir. 1984)(“When a
plaintiff has notice of wrongful conduct, it is not
necessary that he have full knowledge of all the
details or all of the persons involved in order for his
cause of action to accrue.”)(citing Blanck v. McKeen,
707 F.2d 817, 819-20(4th Cir. 1983)(per curiam) cert.
denied, 464 U.S. 916, 104 S.Ct. 279, 78 L.Ed.2d 258
(1983)).
This is precisely the situation presented here.

Mr.

Battle’s claim did not accrue in 2014 with his discovery of Mr.
Tottman’s alleged responsibility in denying Mr. Battle access to
the transcript of the August, 2008 hearing.

Rather, Mr. Battle’s

claim accrued when he knew of his injury - the unavailability of
the transcript he believed was necessary in order to effect a
meaningful appeal.

According to the complaint, Mr. Battle’s

claim could have accrued no later than April 11, 2012 because
that is the date on which Mr. Battle filed a motion for a delayed
appeal on the basis that the transcript was omitted from the
record.

That date is nearly four years before Mr. Battle filed

his complaint in this action.

Consequently, the Court will

recommend that Mr. Tottman’s motion for summary judgment be

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granted on the ground that this action is time-barred.
In support of his contrary argument, Mr. Battle contends
that Mr. Tottman denied that the August, 2008 hearing had taken
place or that a recording of the hearing existed.
suggestion does not require a different result.

This

First, the

complaint alleges that Mr. Tottman was responsible for recording
the hearing and, in fact, did so.

This allegation alone

sufficiently supports the conclusion that Mr. Battle’s exercise
of reasonable diligence would have required him to investigate
Mr. Tottman’s role in the denial of the transcript well before
the state court granted Ms. Hosom’s motion for summary judgment.
Mr. Battle’s contentions

also suggest, however, that Mr.

Tottman’s untruthfulness prevented Mr. Battle from uncovering Mr.
Tottman’s alleged role.
To the extent that this contention could be construed as
some type of tolling argument, it cannot succeed.

Mr. Battle

does not specifically identify an “equitable tolling,” “equitable
estoppel,” or “fraudulent concealment” theory.

“[E]quitable

tolling applies ‘only when a litigant’s failure to meet a
legally-mandated deadline unavoidably arose from circumsntances
beyond that litigant’s control.’”

Wilder v. Collins, 2012 WL

786855, *2 (S.D. Ohio March 9, 2012), quoting Graham-Humprheys v.
Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir.
2000).

“Equitable tolling applies where there lacks any

allegation of impropriety on the defendant’s part, while
equitable estoppel (otherwise referred to as fraudulent
concealment) applies exclusively in situations where demonstrated
egregious wrongdoing by a defendant prevents a plaintiff from
bringing suit on a claim of which plaintiff is aware.”

Easterly,

2006 WL 2404143, at *9, citing Hill v. United States DOL, 65 F.3d
1331, 1338 (6th Cir. 1995).
presented here.

None of these situations is

As set forth above, Mr. Battle was both aware of
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his injury and believed that Mr. Tottman recorded the hearing
well before the state court ruling in 2014.
Finally, the Court notes that, while Mr. Battle is seeking
money damages relating to claims arising in connection with his
appeal, to the extent these allegations could be construed as
implying the invalidity of Mr. Battle’s conviction, this action
would be barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
The complaint reveals that the criminal proceedings against Mr.
Battle have not been resolved in his favor.

Under Heck, “[a]

claim for damages [implying the invalidity of] a conviction or
sentence that has not been so invalidated is not cognizable under
1983.”

Id.
2.

Remaining Issues

Because the Court concludes that this case is time-barred,
it will not address the other issues raised by Mr. Tottman’s
motion.
VI. Recommendation
For the reasons set forth above, it is recommended that
Defendant’s Motion to dismiss, or in the alternative, motion for
summary judgment (Doc. 6) be granted.

To the extent that

Plaintiff’s claims are barred by the statute of the limitations,
his claims should be dismissed with prejudice.

To the extent

that his claims are barred by Heck v. Humphrey, they should be
dismissed without prejudice.
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).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
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A judge

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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