Moore v. Central Ohio Drug Enforcement Task Force (Code TF) et al

Filing 22

REPORT AND RECOMMENDATION re 15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Central Ohio Drug Enforcement Task Force (Code TF), Licking County Ohio Sheriff's Department, Kyle Boerstler and Greg Collins in that it is RECOMMENDED that Defendants' Motion to Dismiss be GRANTED. Objections to R&R due by 3/20/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/6/18. (sem)(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
CHAD A. MOORE,
Plaintiff,
Civil Action 2:16-cv-987
Judge George C. Smith
Magistrate Judge Elizabeth P. Deavers

v.

CENTRAL OHIO DRUG
ENFORCEMENT TASK FOCE
(CODE TF), et al.,
Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for consideration of Defendants’ Motion to Dismiss (ECF
No. 15.), Plaintiff’s Response in Opposition (ECF No. 17), and Defendants’ Reply (ECF No.
20). For the reasons that follow, it is RECOMMENDED that Defendants’ Motion to Dismiss
be GRANTED.
I. BACKGROUND
Plaintiff, a prison inmate under the custody and control of the Ohio Department of
Rehabilitation and Correction, brings his claims pursuant to 42 U.S.C. § 1983 alleging violations
of his Fourth and Fourteenth Amendment rights. (Doc. No 1 at 1.) Plaintiff asserts that on
September 1, 2015, Defendant Boerstler “knowingly included false statements in the search
warrant application for Plaintiffs’ property and residence.” (Id. at 3.) As a result, a warrant
issued leading to the seizure of certain evidence, destruction of property, and Plaintiff’s arrest.
(Id. at 4-5.) According to Plaintiff, he subsequently discovered the identity of a confidential
informant, Andrew Beck, whose statements to Defendant Boerstler served as the basis of the

warrant. (Id. at 4, 5.) Plaintiff alleges that Mr. Beck did not make the statements that Defendant
Boerstler claimed in his search warrant application, and Mr. Beck has executed an affidavit to
that effect, which was incorporated into Plaintiff’s Complaint. (Id. at 14; ECF No. 17 at 3.)
Plaintiff seeks an unspecified amount of money damages and attorney fees. (ECF No. 6 at 8.)
In their Motion, Defendants argue that Plaintiff’s claims are barred by res judicata and by
the Heck doctrine, enunciated in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). (ECF No. 15
at 3, 5.) Defendants also argue that they may not be sued in their official capacities and that the
Licking County Sheriff’s Department enjoys immunity from suit in this matter. (Id. at 6-9.)
II. Standard of Review
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands on the authors of
complaints.” 16630 Southfield Ltd., P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir.
2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

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complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).
Further, the Court holds pro se complaints “‘to less stringent standards than formal
pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010
WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the
nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976-77 (6th Cir.
2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
III. Analysis
Plaintiff brings his claims against Defendants under 42 U.S.C. § 1983, which provides as
follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceedings for redress.
In order to proceed under § 1983, a plaintiff must prove both that (1) the perpetrator acted under
color of state law; and (2) the conduct deprived the complainant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.
527, 535 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir. 1983), rev’d and remanded sub
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nom, Brandon v. Holt, 469 U.S. 464 (1985). As a general rule, a plaintiff proceeding under
§ 1983 must allege that the deprivation of his rights was intentional or at least the result of gross
negligence. Davidson v. Cannon, 474 U.S. 344, 348 (1986). Mere negligence is not actionable
under § 1983. Chesney v. Hill, 813 F.2d 754, 755 (6th Cir. 1987).
A. Res Judicata
Under the doctrine of res judicata, or claim preclusion, “a final judgment on the merits
bars further claims by parties or their privies based on the same cause of action.” Montana v.
U.S., 440 U.S. 147, 153 (1979). The United States Court of Appeals for the Sixth Circuit has
instructed that res judicata requires proof of the following four elements: “(1) a final decision on
the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties
or their privies; (3) an issue in the subsequent action which was litigated or which should have
been litigated in the prior action; and (4) an identity of the causes of action.” Kane v. Magna
Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995). “The purpose of res judicata is to promote the
finality of judgments, and thereby increase certainty, discourage multiple litigation, and conserve
judicial resources.” Westwood Chemical Co. v. Kulick, 656 F.2d 1224, 1227 (6th Cir. 1981).
Defendants argue that Plaintiff’s claims are barred because this Court dismissed his
previous suit, making almost identical allegations against two of the same Defendants, pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief may be
granted. See Moore v. Licking Cnty. Sheriff’s Office, et al., No. 2:16-cv-41 (S.D. Ohio May 19,
2016). Both the Magistrate Judge’s Report and Recommendation and the District Judge’s Order
adopting it, however, explicitly stated that Plaintiff’s Complaint was dismissed without
prejudice. Id.

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“It is well established that the sustaining of a motion to dismiss for insufficiency of the
complaint serves as an adjudication on the merits unless the court specifies otherwise.”
Guzowski v. Hartman, 849 F.2d 252, 255 (6th Cir. 1988) (emphasis in original). Federal Rule of
Civil Procedure 41(b) provides for involuntary dismissal and describes its effect. Where a
plaintiff fails to prosecute or comply with the civil rules or any court order, the court, upon
defendant’s motion, may dismiss the action or any claim. Fed. R. Civ. P. 41(b). The effect of
any dismissal under the Rule, “[u]nless the dismissal order states otherwise . . . operates as an
adjudication on the merits.” Id. A dismissal under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim is a dismissal under Rule 41(b) for failure to comply with the civil rules.
Even were it not, a dismissal under Rule 12(b)(6) would fall under Rule 41(b)’s catch-all
provision: “and any dismissal not under this rule.” Fed. R. Civ. P. 41(b). Either way, a dismissal
order pursuant to Rule 12(b)(6) that fails to state that it is without prejudice or that it is not on the
merits is automatically categorized as a dismissal with prejudice or on the merits. Id. In
contrast, a dismissal explicitly “without prejudice” is not on the merits and does not bar re-filing.
Nunn v. Bracey, No. 89-6308, 1991 WL 16464, at *9, 925 F.2d 1465 (6th Cir. 1991)
(unpublished table opinion) (citing 9 C.Wright & A. Miller, Federal Practice and Procedure §
2373 (1971)).
Because the Court’s order dismissing Plaintiff’s earlier complaint was explicitly “without
prejudice,” the dismissal was not “on the merits” for res judicata purposes. Defendants’
argument that Plaintiff is barred from re-filing, therefore, is not well-taken.

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B. Claims against Defendants in their Official Capacities
Section 1983 does not permit Plaintiff to bring his claim for money damages against
Defendants in their official capacities. Section 1983 imposes liability only upon a “person” who,
under color of law, subjects another person to a deprivation of federal rights. 42 U.S.C. § 1983.
In suits for damages, state officials acting in their official capacity are not “persons” under §
1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Plaintiff’s § 1983 claims
against Defendants in their official capacities, therefore, is not cognizable. See Gean v.
Hattaway, 330 F.3d 758, 766 (6th Cir. 2003) (holding that § 1983 claims against agents of the
state in their official capacity are not cognizable).
C. The Heck Doctrine
In Heck, the Supreme Court ruled that a § 1983 civil rights action seeking money
damages on the basis of an allegedly unconstitutional conviction or sentence will not lie unless
the plaintiff has already succeeded in having the conviction or sentence invalidated. Heck, 512
U.S. at 486–87. Under Heck, when a successful § 1983 civil rights action for damages would
necessarily imply the invalidity of a plaintiff’s conviction or sentence, the complaint must be
dismissed unless the plaintiff demonstrates that the decision resulting in his confinement has
been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such a determination, or called into question by a federal court’s issuance of
a writ of habeas corpus under 28 U.S.C. § 2254. Heck, 512 U.S. at 486–87; see also Edwards v.
Balisok, 520 U.S. 641, 643 (1997).
In contrast, where “the plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff, the action should be

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allowed to proceed . . ..” Heck, 512 U.S. at 487. In illustrating such an action, the Heck Court
explained:
For example, a suit for damages attributable to an allegedly unreasonable search
may lie even if the challenged search produced evidence that was introduced in a
state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction.
Because of doctrines like independent source and inevitable discovery, and
especially harmless error, such a § 1983 action, even if successful, would not
necessarily imply that the plaintiff’s conviction was unlawful. In order to recover
compensatory damages, however, the § 1983 plaintiff must prove not only that the
search was unlawful, but that it caused him actual, compensable injury, which, we
hold today, does not encompass the “injury” of being convicted and imprisoned
(until his conviction has been overturned).
Id. at 487, n. 7 (emphasis in original) (internal citations omitted). Some courts have construed
this footnote as creating an exception to Heck’s requirement that a criminal conviction be
invalidated before its constitutionality can be challenged under § 1983. See Beck v. City of
Muskogee Police Dep’t, 195 F.3d 553, 558, n. 3 (10 Cir. 1999); Copus v. City of Edgerton, 151
F.3d 646, 648–49 (7th Cir. 1998). The Sixth Circuit, however, “emphatically rejected” this
interpretation in Schilling v. White, et al., 58 F.3d 1081, 1086 (6th Cir. 1995).
In Schilling, police officers responded to an accident scene involving the plaintiff’s car
and discovered drugs in the car. Plaintiff was charged with driving under the influence and
subsequently pleaded guilty. Plaintiff later brought a § 1983 suit for money damages against the
officers for violating his Fourth Amendment rights based on the allegedly illegal search of his
car. Id. at 1082–83. The District Court dismissed the § 1983 claims because the plaintiff’s
guilty plea and conviction had not been overturned. Id. The Sixth Circuit affirmed, reasoning as
follows:
The fact that a Fourth Amendment violation may not necessarily cause an illegal
conviction does not lessen the requirement that a plaintiff show that a conviction
was invalid as an element of constitutional injury. The Court explicitly foreclosed
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this line of reasoning in Heck, when it concluded that because an illegal seizure
does not automatically render a conviction invalid, an illegal seizure does not
alone create a[n] injury compensable under § 1983.... [Footnote 7] of Heck plainly
refutes the argument that Fourth Amendment claims are exempted from the
requirement that a conviction must be set aside as a precondition for this type of §
1983 suit.
Schilling, 58 F.3d at 1086 (emphasis in original) (internal citations and quotations omitted). The
Sixth Circuit, therefore, concluded that “no cause of action exists until [the plaintiff’s] conviction
is legally eliminated . . . .” Id. at 1087.
Heck requires the same result here. It is clear from the face of the complaint that
plaintiff’s conviction and sentence have not been overturned or invalidated in accordance with
Heck and Schilling. Plaintiff, therefore, has not alleged an element of his claim, namely an
injury amounting to Constitutional deprivation. Further, a successful challenge against
Defendants for their role in obtaining a warrant leading to plaintiff’s arrest, prosecution, and
criminal conviction would necessarily imply the invalidity of plaintiff’s conviction and sentence.
Plaintiff's claims for damages are, therefore, barred by Heck. Moreover, plaintiff’s complaint
demonstrates that he is in fact challenging the lawfulness of his conviction and sentence.
Plaintiff avers in his Complaint that the search warrant permitting Defendants to gather evidence
at his home, leading directly to his arrest and conviction, was “based upon . . . false statements or
statements made by Kyle Boerstler with reckless disregard for the truth.” (ECF No. 6 at 4.) So
long as his conviction remains valid, Heck prohibits Plaintiff’s claims in this respect. To the
extent that Plaintiff seeks to bring a cause of action under § 1983 attacking the validity of the
searches and seizures of evidence leading to his arrest or the constitutionality of his conviction,
the Undersigned finds he has not stated a § 1983 claim upon which relief may be granted by this
Court.
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D. Damage to Property
In addition to his allegations of Constitutional injury, Plaintiff also alleges that
Defendants damaged unspecified personal and/or real property. (ECF No. 6 at 5.) Although not
barred by Heck, these claims sound in tort and do not rise to the level of a Constitutional claim.
See Harris v. Liston, 1999-Ohio-159, 86 Ohio St. 3d 203, 205, 714 N.E.2d 377, 378–79 (Ohio
1999) (recognizing negligent damage to real property as a tort under Ohio law); see also Dryden
v. Cincinnati Bell Tel. Co., 135 Ohio App. 3d 394, 404, 734 N.E.2d 409, 416 (Ohio Ct. App.
Aug. 20, 1999) (setting forth elements of trespass to chattel under Ohio tort law). With respect
to a state law tort claim, a federal court sits as a court of the forum state and is bound to apply its
substantive law. Guaranty Trust Co. v. York, 326 U.S. 99, 108–09 (1945). The Sixth Circuit has
recognized “Ohio law requires that, prior to asserting a claim against a state employee in his
individual capacity, the Court of Claims must first determine that the employee is not entitled to
the immunity provided for in Ohio Revised Code § 9.86.” Haynes v. Marshall, 887 F.2d 700,
705 (6th Cir. 1989). The Ohio Court of Claims has made no such determination in this matter.
This Court, therefore, is not in a position to determine whether Defendants are immune from
Plaintiff’s state law tort claim. Until the Ohio Court of Claims determines that they are not
immune, then, Plaintiff’s claims are not cognizable in this Court. Prior to the Court of Claims’
determination, there is no claim under Ohio law upon which relief can be granted against
Defendants in their individual capacity. The only cognizable claim, at least initially, lies against
the State of Ohio in the Court of Claims. Id. (citing Ohio Rev. Code Ann. § 2743.02(F)).
Accordingly, the Undersigned finds that Plaintiff’s state law tort claim is not properly before this

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Court and will not be until such time as a cause of action against Defendants is recognized under
Ohio law.
E. Licking County, Ohio Sheriff’s Department
The Undersigned finds that Plaintiff has failed to state a claim upon which relief may be
granted against the Licking County Sheriff’s Department because it is not an entity that is
capable of being sued. Under Ohio law, a county sheriff's office is not a legal entity capable of
being sued for purposes of § 1983. Petty v. Cty. of Franklin, Ohio, 478 F.3d 341, 347 (6th Cir.
2007) (abrogation on other grounds recognized by Bailey v. City of Ann Arbor, 860 F.3d 283 (6th
Cir. 2017)). Thus, there is no merit to any argument that the Licking County Sheriff’s
Department could be implicated as a separate legal entity in this case. Id. (citing Batchik v.
Summit County Sheriff’s Dep’t, Nol 13783, 1989 WL 26041, at *1 (Ohio Ct. App. March 15,
1989).)
Even if the Court were to liberally construe the pro se Complaint as alleging claims
against Licking County itself, Plaintiff’s claim would nevertheless fail. Counties cannot be held
vicariously liable under § 1983 based on the theory of respondeat superior for injuries inflicted
solely by their employees or agents. Iqbal, 556 U.S. at 676; Monell v. New York City Dep’t of
Soc. Services, 436 U.S. 658, 690-92 (1978); Gregory v. Shelby Cnty., Tenn., 220 F.3d 433, 441
(6th Cir. 2000); see Davis, 2009 WL 414269 at *2 (“A plaintiff may not rely on the doctrine of
respondeat superior to find a government entity liable under § 1983 when the claim is founded
solely on an allegation that its agent caused the injury.”). To state a claim for relief under § 1983
against a county, a plaintiff must allege that his “injuries were the result of an unconstitutional
policy or custom” of the county. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994); see
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Polk County v. Dodson, 454 U.S. 312, 326 (1981) (municipal policy must be “moving force”
behind constitutional deprivation). Counties cannot be held responsible for a constitutional
deprivation unless there is a direct causal link between a policy or custom and the alleged
deprivation. Monell, 436 U.S. at 691; Deaton v. Montgomery Cnty., Ohio, 989 F.2d 885, 889
(6th Cir. 1993). In the instant case, Plaintiff has alleged no facts indicating that Defendants
violated his constitutional rights pursuant to a policy or custom of Licking County. Plaintiff does
not mention the Licking County Sheriff’s Department, Licking County government, or any of
their policies or directives in his Complaint. Plaintiff does not even state what the alleged policy
or custom is. In the absence of such allegations, Plaintiff has failed to state a claim for which
relief may be granted based on the theory of county liability. Monell, 436 U.S. at 693-694.
Accordingly, the Undersigned finds that Plaintiff has failed to state a claim for which relief may
be granted against Defendant Licking County Sheriff’s Department, or, to the extend he intended
to assert a claim, against Licking County.
F. Central Ohio Drug Enforcement Task Force
Similarly, Plaintiff’s claims against the Central Ohio Drug Enforcement Task Force (the
“Task Force”) fail. The task force is comprised of law enforcement and prosecutors from the
Ohio counties of Coshocton, Knox, Licking, Muskingum, Perry, and Guernsey. The Task Force,
therefore, is only liable under § 1983 to the extent Defendant’s “injuries were the result of an
unconstitutional policy or custom” of the counties. Matthews, 35 F.3d at 1049. Other than in its
Caption, Plaintiff mentions neither the Task Force nor its constituent counties in his Complaint.
Accordingly, the Undersigned finds that Plaintiff has failed to state a claim for which relief may
be granted against the Central Ohio Drug Enforcement Task Force, or, to the extend he intended

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to assert a claim, against Coshocton, Knox, Licking, Muskingum, Perry, and Guernsey counties
for their role in the Task Force.
IV. CONCLUSION
For the reasons explained above, Plaintiff has failed to state a claim on which relief may
be granted against Defendants. Accordingly, the Undersigned RECOMMENDS that
Defendants’ Motion to Dismiss be GRANTED. (ECF No. 15.)
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, it
may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

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981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

Date: March 6, 2018

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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