Wheeler v. Dayton Police Dept et al

Filing 3

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Eric D. Wheeler - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff Eric D. Wheelers Complaint be DISMISSED; 2. The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reaso ns an appeal of an Order adopting this Report and Recommendations would not be taken in good faith, and consequently, leave for Plaintiff to appeal in forma pauperis should be denied; and 3. The case be terminated on the docket of this Court. Objections to R&R due by 7/2/2012. Signed by Magistrate Judge Sharon L Ovington on 06/14/12. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ERIC D. WHEELER,

:

Plaintiff,

:

Case No. 3:12cv00182

v.

:

District Judge Walter Herbert Rice
Magistrate Judge Sharon L. Ovington

DAYTON POLICE DEPARTMENT,
et al.,

:
:

Defendants.
:

REPORT AND RECOMMENDATIONS1

Plaintiff Eric D. Wheeler brings this case pro se against the Dayton Police
Department, Officer Ryan T. Halburnt, and Officer Michael T. Fuller. (Doc. #2 at 2).
On June 14, 2012, this Court granted Plaintiff’s Application to Proceed in forma
pauperis under 28 U.S.C. § 1915. Currently, the case is before the Court for a sua sponte
review in order to determine whether Plaintiff’s Complaint, or any portion of it, should be
dismissed because it is frivolous, malicious, or fails to state a claim upon which relief
may be granted. See 28 U.S.C. § 1915(e)(2)(B). If the Complaint raises a claim with an
arguable or rational basis in fact or law, it is neither frivolous nor malicious, and it may
not be dismissed sua sponte. Brand v. Motley, 526 F.3d 921, 923-24 (6th Cir. 2008); see

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). A Complaint has no arguable
factual basis when its allegations are “fantastic or delusional.” Brand, 526 F.3d at 923
(quoting Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827, 104 L.Ed.2d 338
(1989)); see Lawler, 898 F.2d at 1199. A Complaint has no arguable legal basis when it
presents “indisputably meritless” legal theories – for example, when the defendant is
immune from suit or when the plaintiff claims a violation of a legal interest which clearly
does not exist. See Neitzke, 490 U.S. at 327-28; see also Brand, 526 F.3d at 923.
Determining whether a Complaint fails to state a claim upon which relief may be
granted starts by accepting the plaintiff’s allegations as true and construing the Complaint
in the light most favorable to the plaintiff. Gunasekera v. Irwin, 551 F.3d 461, 466 (6th
Cir. 2009). “[A] complaint must contain (1) ‘enough facts to state a claim to relief that is
plausible,’ (2) more than a ‘formulaic recitation of a cause of action’s elements,’ and (3)
allegations that suggest a ‘right to relief above a speculative level.’” Tackett v. M & G
Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 1965, 167 L.Ed.2d 929 (2007)).
“[T]he dismissal standard articulated in Iqbal and Twombly governs dismissals for failure
to state a claim under [28 U.S.C. §§ 1915A and 1915(e)(2)(B)] because the relevant
statutory language tracks the language in Rule 12(b)(6).” Hill v. Lappin, 630 F.3d 468,
470-71 (6th Cir. 2010) (internal citations omitted).
Plaintiff alleges that on May 19th, 2009, at 6:40 p.m., he was sitting in a truck with
two other individuals in a convenience store parking lot when Dayton Police Officers
2

Halburnt and Fuller pulled into the lot, watched him sitting in the truck for 30 seconds,
and then approached to question the occupants. (Doc. #2 at 4). Plaintiff alleges Halburnt
and Fuller claimed the reason they approached “was simply because they did not see
anyone coming to or from the truck.” (Id.). Plaintiff, however, alleges “their sole reason
was simply because they observed 3 black males in a nice truck,” and he was therefore
“racially profiled, and, as a result of being racially profiled, . . . fell victim to an illegal
unauthorized search of [his] person.” (Id.). Plaintiff alleges that “without any type of
probable cause other than being black and being assumed to be a drug dealer,” a strip
search was conducted of him in a public parking lot where the public could see him
naked. (Id.). Plaintiff further notes that he never gave permission to be searched, but the
officers “violently searched [him] anyway.” (Id.). Plaintiff acknowledges that the
officers did find 7.3 grams of crack hidden between his buttocks, but the 3.0 grams of
marijuana found in his pants pocket at the county jail was “planted” by Halburnt in an
attempt to establish probable cause for the initial search of the vehicle based on a falsified
statement that the officers smelled marijuana in the truck. (Id. at 10-11). Plaintiff further
notes that he is suing Officers Halburnt and Fuller in both their individual and official
capacities. (Id. at 7).
As to relief, Plaintiff seeks “in excess of $2.5 million” for wrongful imprisonment
and excessive use of force. (Id.). Plaintiff seeks an additional amount “in excess of $2.5
million” for “humiliation, embarrassment, and pain [and] suffering,” as well as another
amount “in excess of $5.2 million” for racial profiling. In addition, Plaintiff seeks an
3

amount in “excess of $2.5 million” for “being unconstitutionally strip searched in a very
public place in violation of his Fourth Amendment rights.” (Id.). Finally, Plaintiff
requests “inju[n]ctive relief to prohibit the Dayton Police Department or any of its agents
or officers to harass or retaliate against plaintiff for the filing of this lawsuit.” (Id.).
Although the claims set forth by Plaintiff under 42 U.S.C. § 1983 are not
delusional, they are time barred and should therefore be dismissed.
42 U.S.C. § 1983 does not contain its own statute of limitations. Instead, an action
brought under this section is subject to the limitations period applicable to personal injury
torts in the state where the alleged violation occurred. Wallace v. Kato, 549 U.S. 384,
387, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007). The applicable limitations period in
Ohio is two years. See Ohio Rev. Code § 2305.10; Browning v. Pendleton, 869 F.2d 989,
992 (6th Cir. 1989). “[T]he accrual date of a § 1983 cause of action is a question of
federal law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388
(emphasis in original). Typically, the statute of limitations for filing an action alleging a
constitutional violation begins to run “when the plaintiff knows or has reason to know of
the injury which is the basis of his action.” Edison v. Tenn. Dep’t of Children’s Servs.,
510 F.3d 631, 635 (6th Cir. 2007) (citing Kuhnle Bros., Inc. v. County of Geauga, 103
F.3d 516, 520 (6th Cir. 1997)). “[I]n determining when the cause of action accrues in
section 1983 actions, we have looked to what event should have alerted the typical lay
person to protect his or her rights.” Id. (additional citations omitted).
In this case, Plaintiff’s claims stem from the alleged injuries that occurred on May
4

19th, 2009. Plaintiff was, or should have been, aware of the alleged injuries on the date
they occurred, however, he did not file his Complaint until over three years later – on
June 13, 2012 – in conjunction with the filing of his in forma pauperis application. (See
Doc. #2). Plaintiff’s Complaint was therefore filed approximately one year after the
statute of limitations for his § 1983 claims expired. Moreover, Plaintiff’s failure to know
about the statute of limitations or discuss his claims with an attorney prior to the
expiration of the statute of limitations period would not be a sufficient reason to deem
Plaintiff’s Complaint timely filed. See Curtis v. May, 2011 U.S. Dist. LEXIS 35061, *7
(S.D. Ohio, March 31, 2011) (Rice, D.J.) (“A § 1983 plaintiff cannot circumvent the
statute of limitations simply by failing to consult with an attorney in a timely manner.
This kind of ‘willful ignorance’ provides no basis for extending the statute of
limitations.”). Plaintiff’s claims under 42 U.S.C. § 1983 are therefore time barred and
should be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). See E.I. Du Pont
de Nemours & Co., 1998 U.S. App. LEXIS 23737 *3 (6th Cir. 1998).
IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff Eric D. Wheeler’s Complaint be DISMISSED;

2.

The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing
reasons an appeal of an Order adopting this Report and Recommendations
would not be taken in good faith, and consequently, leave for Plaintiff to
appeal in forma pauperis should be denied; and

3.

The case be terminated on the docket of this Court.

June 14, 2012

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

5

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen (14) days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to seventeen (17) days because this Report is being served by one
of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an
oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party's objections within fourteen (14) days after being served with a copy
thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See, United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

6