Wilson v. City of Dayton et al

Filing 3

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Robert Eugene Wilson. For the reasons stated herein, the Court RECOMMENDS that: 1. Plaintiffs complaint be DISMISSED; and 2. This case be CLOSED. Objections to R&R due by 1/2/2014. Signed by Magistrate Judge Michael J Newman on 12/16/13. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROBERT E. WILSON,
Plaintiff,

Case No.: 3:13-CV-388

vs.
CITY OF DAYTON, et al.,

Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.
______________________________________________________________________________
REPORT AND RECOMMENDATION1 THAT: (1) PLAINTIFF’S PRO SE COMPLAINT
BE DISIMSSED; AND (2) THIS CASE BE CLOSED

This matter is before the Court for a sua sponte review of pro se Plaintiff’s complaint
pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff filed a motion for leave to proceed in forma
pauperis (“IFP”) on November 14, 2013, which the Court granted by Notation Order on
November 18, 2013. Doc. 1. The Court held service of the complaint pending a review under
§ 1915(e)(2). The Court may dismiss Plaintiff’s complaint upon finding his claims: (1) are
frivolous or malicious; (2) fail to state a claim upon which relief may be granted; or (3) seek
monetary relief from a defendant who is immune from such relief.

See 28 U.S.C.

§ 1915(e)(2)(B). It is appropriate for the Court to conduct this review sua sponte prior to issuance
of process “so as to spare prospective defendants the inconvenience and expense of answering
such complaints.” Neitzke v. Williams, 490 U.S. 319, 324 (1989).
I.
Pro se Plaintiff brings this action, presumably pursuant to 42 U.S.C. § 1983, against ten
defendants: the City of Dayton; the Dayton Police Department; Dayton Police Officers T.P.
1

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

Zimmer, K. Sowart, and M. Baker; the National Association for the Advancement of Colored
People (“NAACP”); the Southern Christian Leadership Council (“SCLC”); Montgomery County,
Ohio; the State of Ohio; and former Dayton Police Officer Matthew Stacker. Doc. 2 at PageID
52-54. The complaint proceeds in narrative form to detail five sets of events that Plaintiff urges
demonstrate numerous wrongs committed against him. The descriptions of four of the events
begin with a case number. The Court takes judicial notice of the fact that these four case numbers
correspond to criminal cases in Dayton Municipal Court that resulted in a conviction or guilty plea.
The first event involves a 2005 conviction for disorderly conduct, Case No.
2003-CRB-13654. Id. at PageID 55-56. The complaint describes that in 1986 Plaintiff met the
owner of Motoman, Inc. while working at Kettering Medical Center. When this man died,
Plaintiff alleges he was informed that the man bequeathed Plaintiff “enough money that I could
live off of the rest of my life.” Id. at PageID 56. Plaintiff describes that he went to the Probate
Court in November 1996 to seek files relevant to the estate, but that a clerk “literally refused to
give me 2 folders from that particular docket.” Id. Plaintiff claims the contents of these folders
would have proven that he was entitled to estate proceeds. Id. Plaintiff also alleges that officials
at the University of Dayton robotics program were involved in this scheme to defraud him because
that program received money from Motoman, Inc.
Plaintiff then describes that, in 2003, he submitted a crime tip on the Montgomery County
Prosecutor’s website that allegedly incriminated “some of the prosecutors and or fellow (but
private juris doctorates); fellow law enforcements; and or former and[/]or current elements at
Motoman-Robotics,

Kettering

Medical

Center;

and

or

former

and

current

civil/federal-politicians.” Id. at PageID 55. When Plaintiff received no response to his tip, he
sent an email to the Prosecutor’s office. This elicited a response for Plaintiff “not to[] ever again

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send an email in that manner.” Id. Plaintiff was prosecuted -- and found guilty -- for this
incident, which he alleges was to “cover their and their pal’s butts.” Id. at PageID 56.
Second, Plaintiff details the events leading to his arrest in Case No. 2005-CRB-1416. Id.
at PageID 57. Plaintiff describes that after he “flipped off the [M]unicipal [C]ourt as I walked
by,” he was approached by Dayton Police Officer M. Baker. Id. Plaintiff alleges that Baker
stalked and profiled him on that and several other occasions, which culminated in Plaintiff yelling
an expletive at Baker. Id. Baker then radioed for other police officers, who arrested Plaintiff.
Id. This resulted in Plaintiff’s conviction for disorderly conduct in May 2005.
The third event described involves Case No. 2006-CRM-20375, a disorderly conduct
conviction. Id. at PageID 58-61. Plaintiff was allegedly approached on the street by Dayton
Police Officers T.P. Zimmer and K. Sowart. Id. at PageID 58. Plaintiff claims that Zimmer
approached him at the behest of Sowart and tried to engage him in conversation. Id. at PageID
58-59.

Plaintiff then details the alleged motivation for this, which stemmed from a prior

encounter between Plaintiff and Sowart. Id. at PageID 59-60. Eventually, Zimmer issued
Plaintiff a ticket for disorderly conduct. Id. at PageID 61. Plaintiff then alleges that, at trial,
Zimmer lied and testified that he was alone during the altercation. Id.
Plaintiff then discusses an encounter with “Sharon,” an unnamed employee at SCLC, from
whom he tried to obtain legal assistance stemming from these incidents. Id. Plaintiff alleges that
Sharon inquired as to his religious denomination and, upon learning that Plaintiff was Protestant,
stated there was a $25 application fee. Id. According to Plaintiff, Sharon discriminated against
him based on his race and religion. Id.
The fourth event involves Case No. 2011-CRB-7836, which culminated in Plaintiff
pleading guilty to harassment. Id. at PageID 62-63. The complaint explains the details leading
to his arrest and attempts to show that he was not guilty. Id. Plaintiff’s only allegation of
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misconduct is his belief that the victim was induced to lie by unnamed persons, presumably the
police or prosecutors in the case. Id. at PageID 63.
Finally, Plaintiff discusses an event in 2003 that did not lead to criminal charges. Id. at
PageID 64-66. Plaintiff alleges that he was falsely accused of assault by third parties and placed
in handcuffs by Dayton Police Officers. Id. During this process, Plaintiff alleges that one
officer, Mathew Stacker, violated him with a hard object. Id. at PageID 65. Eventually, Plaintiff
alleges, he was released once officers viewed the video surveillance tapes proving that no assault
occurred. Id. Plaintiff tried to file an internal investigation report, but the DPD refused to accept
it. Id. at PageID 65-66. Plaintiff claims he was vindicated when he saw a news report that
Stacker had been fired. Id. at PageID 66. Plaintiff then adds that he intentionally chose not to
contact the NAACP or SCLC for assistance in the matter because he believed they are both
“corrupt” organizations, and “never have I trusted the SCLC.” Id.
Plaintiff seeks damages in the amount of $250 million, the purported insurance policy
limits, he believes, of the City of Dayton. Id. at PageID 67.
II.
A complaint should be dismissed as frivolous if it lacks an arguable basis in law or fact.
Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke, 490 U.S. at 325. A complaint has no
arguable factual basis when its allegations are “fantastic or delusional,” and 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. Neitzke, 490 U.S. at 327-28; Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000).
Courts may also dismiss a complaint sua sponte for failure to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). While pro se pleadings are “to be liberally
construed” and “held to less stringent standards than formal pleadings drafted by lawyers,”
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Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), pro se plaintiffs must still satisfy basic
pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). The complaint “must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility 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. (citing Twombly, 550 U.S. at 556); see also Hill v. Lappin, 630 F.3d 468, 470-71
(6th Cir. 2010) (applying the Iqbal and Twombly dismissal standards to reviews under
§ 1915(e)(2)(B)(ii)).
To state a claim for relief under § 1983, the complaint must allege “(1) that there was the
deprivation of a right secured by the Constitution and (2) that the deprivation was caused by a
person acting under color of state law.” Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902
(6th Cir. 2003). The Sixth Circuit has held that “a private party can fairly be said to be a state
actor if (1) the deprivation complained of was ‘caused by the exercise of some right or privilege
created by the State’ and (2) the offending party ‘acted together with or has obtained significant aid
from state officials, or because his conduct is otherwise chargeable to the State.’” Tahfs v.
Proctor, 316 F.3d 584, 589-90 (6th Cir. 2003) (quoting Lugar v. Edmondson Oil Co., 457 U.S.
922, 937 (1982)).
The Supreme Court has provided that the applicable statute of limitations for § 1983 claims
is the state statute governing actions for personal injury. Wilson v. Garcia, 471 U.S. 261, 279-80
(1985). If a state has multiple statutes of limitation for personal injury actions, as does Ohio, the
proper statute to apply is the general or residual statute for personal injury actions. Owens v.
Okure, 488 U.S. 235, 249-50 (1989). The statute of limitations for general personal injury actions
in Ohio is two years. Ohio Rev. Code Ann. § 2305.10. Therefore, § 1983 claims must be
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brought within two years. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (en banc);
see also Anderson v. City of E. Cleveland, No. 1:12-cv-3020, 2013 WL 1910410, at *4 (S.D. Ohio
May 8, 2013) (“The Court of Appeals for the Sixth Circuit has held that Ohio Revised Code
§ 2305.10 is the applicable statute, creating a two year statute of limitations for all § 1983 actions
in Ohio.”).
The accrual date for a § 1983 action, however, is governed by federal law. Wallace v.
Kato, 549 U.S. 384, 388 (2007). “The statute of limitations begins to run when the plaintiff
knows or has reason to know of the injury which is the basis of his action.” McCune v. City of
Grand Rapids, 842 F.2d 903, 905 (6th Cir. 1988). A plaintiff, moreover, “has reason to know of
his injury when he should have discovered it through the exercise of reasonable diligence.” Id.
To maintain a § 1983 claim for an allegedly unconstitutional conviction or imprisonment,
or other harm resulting from actions that would render a conviction invalid, the underlying
conviction must have been favorably terminated in the plaintiff’s favor. Heck v. Humphrey, 512
U.S. 477, 486-87 (1994).
III.
After a careful review, and liberal construction, of Plaintiff’s complaint, the Court believes
that it must be dismissed pursuant to § 1915(e)(2)(B).
First, the majority of Plaintiff’s claims are barred by the two-year statute of limitations.
Plaintiff filed his IFP application on November 14, 2013. Doc. 1. Therefore, Plaintiff may only
pursue claims under § 1983 for injuries he had reason to know of on or before November 15, 2011.
See Browning, 869 F.2d at 992; McCune, 842 F.2d at 905. The events surrounding Plaintiff’s
2003, 2005, and 2006 criminal cases, and the 2003 alleged assault, are all barred by the statute of
limitations. See doc. 2 at PageID 55-61, 64-66.

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Second, Plaintiff seeks monetary relief from defendants who are immune from such relief.
See 28 U.S.C. § 1915(e)(2)(B)(iii). Plaintiff names the Dayton Police Department and the State
of Ohio as defendants. It is well established that a city police department is a sub-unit of the city
government and is merely a vehicle through which the city fulfills its policing functions.
Williams v. Dayton Police Dep’t, 680 F. Supp. 1075, 1080 (S.D. Ohio 1987). The Dayton Police
Department is sui juris and therefore Plaintiff may not pursue claims against it. Id.; see also
Joseph v. Licking County, No. 2:12-cv-803, 2012 WL 5988776, at *2 (S.D. Ohio Nov. 29, 2012);
Jones v. Marcum, 197 F. Supp. 2d 991, 997 (S.D. Ohio 2002). The Eleventh Amendment
categorically bars suits in federal court against an unconsenting State. See, e.g., Quern v. Jordan,
440 U.S. 332, 340-41 (1979); Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). The State of
Ohio has not consented to suit in federal court; therefore, Plaintiff may not maintain his suit
against the State of Ohio. Allinder v. State of Ohio, 808 F.2d 1180, 1184 (6th Cir. 1987).
Further, the complaint is utterly devoid of any allegations that could potentially implicate liability
for the State of Ohio.
Third, Plaintiff may not proceed against SCLC and NAACP because his complaint fails to
allege that either entity deprived him of a constitutional right, or that either should be deemed a
state actor. See Wittstock, 330 F.3d at 902; Tahfs, 316 F.3d at 590-91. Plaintiff fails to advance
-- and the Court is unable to surmise -- any other grounds on which the case against these two
defendants could proceed. The complaint only contains one reference to the NAACP. Doc. 2 at
PageID 66. The complaint provides that Plaintiff intentionally chose not to contact the NAACP
or SCLC for assistance because he believed they are both “corrupt” organizations, suspected that
the NAACP previously stole money from a third party, and “never have I trusted the SCLC.” Id.
Fourth, Plaintiff may not pursue a § 1983 claim for an unconstitutional conviction because
he pled guilty or was found guilty in the four state criminal cases here at issue. See Heck, 512
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U.S. at 486-87. Further, to the extent that Plaintiff attempts to present exculpatory evidence or
otherwise challenge his state court convictions, his claims are precluded by the Rooker-Feldman
doctrine, which provides that federal courts lack jurisdiction to review a case litigated and decided
in state court because the United States Supreme Court is the only federal court with jurisdiction to
correct state court judgments. See D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983);
Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); see also Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005).
Finally, for any alleged injuries that are not time barred and are asserted against proper
defendants,2 the complaint fails to state a claim upon which relief can be granted. 28 U.S.C.
§ 1915(e)(2)(B)(ii). Such events, limited to the 2011 criminal case, do not provide the basis for a
cognizable claim under § 1983 or otherwise. Plaintiff’s mere belief -- that the victim of his crime
was induced to make false claims -- is unsupported by any specific facts and therefore fails to
satisfy the pleading standards imposed by under Twombly and Iqbal. Doc. 2 at PageID 63.
To the extent that Plaintiff seeks to bring state law claims not otherwise discussed herein,
Plaintiff fails to show that he satisfies the requirements of diversity jurisdiction, and the Court thus
lacks subject matter jurisdiction to entertain such claims. See 28 U.S.C. § 1332.
IV.
For the reasons stated herein, the Court RECOMMENDS that:
1. Plaintiff’s complaint be DISMISSED; and
2. This case be CLOSED.

2

In light of the discussion in this opinion, clarifying that Plaintiff’s § 1983 claims cannot
withstand §1915(e)(2) review, see supra, the Court need not discuss whether the individual
Defendants (Zimmer, Sowart, Baker, and Stacker) are entitled to qualified immunity from
liability. See generally Harlow v. Fitzgerald, 457 U.S. 800, 817-19 (1982); Burgess v. Fischer,
735 F.3d 462, 471-72 (6th Cir. 2013).
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s/ Michael J. Newman
United States Magistrate Judge

December 16, 2013

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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 days after being served with
this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to
SEVENTEEN days because this Report and Recommendation is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be extended
further by the Court on timely motion for an extension. Such objections shall specify the portions
of the Report and Recommendation objected to, and shall be accompanied by a memorandum of
law in support of the objections. If the Report and Recommendation is 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 days after being served with a copy
thereof. As is made clear above, this period is likewise extended to SEVENTEEN days if service
of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn,
474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

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