Bigi et al v. Brown et al

Filing 22

REPORT AND RECOMMENDATIONS - The Amended Complaint should be dismissed with prejudice. Because this conclusion is dispositive of the case, the Court need not reach the other questions raised by Defendants of whether claims are sufficiently pled under Twombly-Iqbal or whether Plaintiffs waived their claims by pleading guilty. Objections to R&R due by 11/24/2014. Signed by Magistrate Judge Michael R Merz on 11/7/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVID BIGI, et al.,
Plaintiffs,

-

vs

:

Case No. 3:14-cv-282
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

-

OFFICER MARK BROWN, et al.,
Defendants.

:

REPORT AND RECOMMENDATIONS

Plaintiffs David and Robert Bigi brought this action pro se to recover for wrongs
allegedly done to them in the course of investigation and prosecution of the Plaintiffs for federal
criminal offenses. The case is before the Court on Defendants’ Motion to Dismiss the Amended
Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. No. 15) which Plaintiffs oppose (Doc. No.
19); Defendants have filed a Reply in support (Doc. No. 21).
Pursuant to the General Order of Assignment and Reference for the Dayton location of
court, the case has been referred randomly to a United States Magistrate Judge under 28 U.S.C. §
636(b) for pre-trial management. Motions for involuntary dismissal are dispositive motions
requiring a report and recommendations from an assigned Magistrate Judge, rather than a
decision.
Defendants are two police officers of the City of Beavercreek, Ohio, and the City itself.
Plaintiffs assert this Court has subject matter jurisdiction under 28 U.S.C. § 1331 because of the
1

federal questions raised and 28 U.S.C. § 1343 because at least some of the claims are made under
federal civils rights law. Defendants do not dispute subject matter jurisdiction and the Court
finds it has such jurisdiction under §§ 1331 and 1343 and over the Fourth Claim for Relief under
28 U.S.C. § 1367.

The Amended Complaint

Plaintiffs’ Amended Complaint purports to state four claims for relief. The First Claim is
against Defendants Brown and Stull for interference with Plaintiffs’ property rights under the
Fifth and Fourteenth Amendments to the United States Constitution, made actionable by 42
U.S.C. § 1983. The Second Claim accuses Brown and Stull of conspiring to interfere with the
same rights, conduct made actionable under 42 U.S.C. § 1985. The Third Claim asserts liability
of the City of Beavercreek for failure to train Brown and Stull, resulting in the alleged
constitutional violations. The Fourth Claim seeks to establish common law liability of all
Defendants for the alleged acts.
Factually, Plaintiffs allege Officer Brown and others entered David Bigi’s residence on
July 9, 2009, for the purpose of seizing “equipment purchase receipts.” (Amended Complaint,
Doc. No. 9, ¶ 10, PageID 471.) The Amended Complaint does not state what property was

1

When any document is filed with this Court, the Court’s electronic filing system affixes a
unique Page Identification Number in the upper right hand corner of every page. The attention
of the parties is directed to this Magistrate Judge’s Standing Order of May 8, 2014, which
provides in pertinent part “All references to the record in this Court must be to the filed
document by title, docket number, and PageID reference. (E.g., Defendant’s Motion to Dismiss,
Doc. No. 27, PageID ___.) The large majority of cases before this Magistrate Judge are habeas
corpus cases with large state court records and correct citation to the record is critical to judicial
economy. Therefore, nonconforming filings will be stricken.
2

seized, but alleges that any such property was not deposited in the property room of the
Beavercreek Police Department until November 30, 2009. Id. at ¶ 13.

Officers Brown and

Stull allegedly mishandled the seized property between July 9, 2009, and October 18, 2010. Id.
at ¶ 14, PageID 48. Plaintiffs allege that Officers Brown and Stull, during this time period,
tampered with and destroyed property of the Plaintiffs which constituted “[i]rrefutable evidence
that would have acquitted the Plaintiffs of the charges brought against them” for the purpose of
maliciously prosecuting Plaintiffs and depriving them of their constitutional rights to due process
and a fair trial. Id. at ¶ 22, PageID 48-49. Plaintiffs claim that on March 24, 2010, Brown
“unlawfully cut into and tampered with the Plaintiffs evidence bag that was never logged out of
the Evidence/Property Room.” Id. at ¶¶ 23-25, PageID 49. Various meetings between Brown,
Stull, and the Plaintiffs were scheduled on March 26, 2010; October 12, 2010; and October 19,
2010. Id. at ¶¶ 26-32, PageID 49-50. On October 19, 2010, Officers Brown and Stull allegedly
lied to Plaintiffs about why one of their evidence bags was not produced for inspection at the
October 12, 2010, meeting.

Plaintiffs allege that as a result of these acts, they suffered

“enormous” financial and emotional damages and deprivation of their liberty.

They seek

compensatory damages in an unspecified amount, punitive damages of $8 million, and various
reform-oriented injunctive orders against the City of Beavercreek.

Defendants’ Motion to Dismiss

Although it is alluded to only inferentially in the Amended Complaint, Plaintiffs were
Defendants in a criminal prosecution in this Court, United States v. David and Robert Bigi, Case
No. 3:09-cr-153 (the “Criminal Case”). The grand jury charged the Bigis with a conspiracy to

3

engage in the interstate transportation of stolen property and numerous other related offenses
(Criminal Case Indictment, Doc. No. 4, PageID 12 et seq.) Both Bigis were arraigned on the
Indictment and released on conditions in late October 2009. Id. at Doc. Nos. 5-11. The case
was initially assigned to Chief District Judge Susan Dlott, but later transferred to District Judge
Timothy Black. Id. at Doc. No. 81. After extensive pretrial motion practice (over 200 docket
entries), David Bigi entered into a Plea Agreement with the United States on August 1, 2011, and
was sentenced to five years probation. Id. at Doc. No. 257, 265. On motion of the United States,
the Superseding Indictment was dismissed as to Robert Bigi on December 6, 2011, pursuant to
his agreement to plead guilty to a bill of information in Case No. 3:11-cr-119 charging one count
of misprision of felony in connection with the same criminal scheme. Id. at Doc. No. 271.
Conceding that a pro se civil rights pleading must be liberally construed under Haines v.
Kerner, 404 U.S. 519, 520-21 (1972), Defendants nevertheless assert Plaintiffs have failed to
plead claims that are plausible under Fed. R. Civ. P. 12(b)(6), relying on the standard adopted by
the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S.544 (2007), and Ashcroft v. Iqbal,
556 U.S. 662 (2009). Even if the Amended Complaint were sufficient under that standard,
Defendants assert it is barred by the relevant statute of limitations and Plaintiffs’ waiver by
pleading guilty to the criminal offenses.

ANALYSIS

Plaintiffs make numerous factual allegations in their Memorandum in Opposition. To the
extent those allegations are relevant to the Motion to Dismiss, the Court considers them as if

4

Plaintiffs had again amended their complaint to add those allegations. This is consistent with the
liberal construction of pro se civil rights complaint commanded by Haines v. Kerner, supra.
Plaintiffs allege that there existed on July 9, 2009, when their property was seized
pursuant to a search warrant a document or documents which would show that David Bigi “had
in his possession on July 10, 2009 purchase receipts for the indicted equipment.” (Memo in
Opp., Doc. No. 19, PageID 149). This would have been useable by Plaintiffs in support of their
theory of defense: “The Plaintiffs have been arguing from day one on or about July 10, 2009
that they purchased the alleged stolen equipment from another party.” Id. To prove that this has
been Plaintiffs’ position from the start of the criminal litigation, they assert:
Plaintiff David Bigi stated this fact, that he purchased the said
equipment that is relevant to the Federal indictment while in
custody at the Vandalia Police department during an audio
recorded interrogation on or about July 10, 2009. If one could
obtain this video from the USDOJ one would also hear the
coercion towards Mr. [David] Bigi to give them access to the safe
in his home. The fact is that the Plaintiff David Bigi had and kept
all receipts at his home during the course of business of buying
heavy equipment, cars, trucks, boats, motorcycle[s], and
miscellaneous items.

Id. As further proof, they assert that, as shown on a video recording of the evidence inspection
on 10/19/2010, “almost all the evidence that the defendants had not destroyed and left in the
[evidence] bags are purchase receipts for something or another.” Id. The equipment purchase
receipt in question is what Plaintiffs say would have been irrefutable evidence of their innocence.
(Amended Complaint, Doc. No. 9 at ¶ 22, PageID 48-49.)
As the Magistrate Judge understands Plaintiffs’ theory of the case, it is that, among other
things, the Beavercreek Police under Detective Brown’s direction seized this evidence which
proved Plaintiffs innocent on July 9, 2009. Thereafter, either during a delay in depositing the
5

evidence in the Beavercreek police property room or thereafter, particularly in March 2010,
Detective Brown, with the conspiratorial complicity of Officer Stull, removed the exculpatory
evidence from the seized property and destroyed it.
Criminal defendants have a constitutional right to the disclosure of exculpatory evidence
in the hands of the prosecuting authorities as held in Brady v. Maryland, 373 U.S. 83 (1963), and
its progeny.

Intentional withholding of such evidence by the police is a violation of a

defendant’s right to a fair trial, requiring a reversal of the conviction. If the exculpatory evidence
is also the property of the defendant, its destruction would violate the owner’s Fourteenth
Amendment right not to have his property destroyed by the State without due process of law.
However, any such claim made in the Amended Complaint (or which could be made by
adding allegations from the Memorandum in Opposition) is barred by the statute of limitations..
Because the Civil Rights Act of 1871 does not include a statute of limitations, the federal
courts “borrow” a limitations statute from the forum State, Ohio in this case. Hardin v. Straub,
490 U.S. 536 (1989). The statute of limitations under Ohio law for actions brought pursuant to
42 U.S.C. § 1983 is two years. Ohio Revised Code § 2305.10. Nadra v. Mbah, 119 Ohio St. 3d
305 (2008); Banks v. City of Whitehall, 344 F.3d 550, 551 (6th Cir. 2003), citing Browning v.
Pendleton, 869 F.2d 989 (6th Cir. 1989)(en banc). A statute of limitations defense may be raised
and decided on a motion to dismiss under Fed. R. Civ. P. 12(b)(6) when it is apparent on the face
of the complaint. Pierce v. County of Oakland, 652 F.2d 671 (6th Cir. 1981); Lundblad v.
Celeste, 874 F.2d 1097 (6th Cir. 1989).
The statute of limitations begins to run from “when the plaintiff knows or has reason to
know of the injury which is the basis” of the claim. Trzebuckowski v. City of Cleveland, 319 F.3d
853, 856 (6th Cir. 2003).

6

At least as early as the property inspection which occurred on October 19, 2010,
Plaintiffs knew that the “equipment property receipt” on which they rely was not in the
Beavercreek police property room among the many such documents seized on July 9, 2009. This
was obviously a critical piece of evidence in the criminal case. With it, they would have had
what they claim would have been “irrefutable” evidence of their innocence. Without it, they
claim they were “railroaded” into taking the only plea agreement that was ever offered (Memo.
In Opp., Doc. No. 19, PageID 147.) In addition, they apparently did not specifically demand the
relevant documents because to do so “would have tipped their hand on the evidence they were
looking for.” Id. at PageID 146. They justify their silence by quoting an aphorism: “When one
searches for his treasure, his pot of gold, he does not tell the ones he meets along the way what
he is looking for.” Id. at PageID 146-47.
Plaintiffs did not file their Complaint in this case until August 26, 2014, forty-six months
after they discovered that the relevant “irrefutable” evidence was gone. They attempt to justify
their delay and avoid the bar of the two-year statute of limitations by claiming they only
“discovered” their claims in August 2014 when they received the Property Detail Reports
(“PDR”) which are attached as exhibits to their Memorandum in Opposition (Doc. No. 19,
PageID 175-80. Plaintiffs aver they obtained the PDR’s while conducting “discovery for another
matter2 on or about August 1, 2014” Id. at PageID 160.
In between October 19, 2010, and August 26, 2014, Plaintiffs pleaded guilty to federal
felony charges and were convicted and sentenced. They neither appealed nor have they sought
to have those convictions set aside on the basis of the asserted Brady violation. They were

2

Presumably this other matter is the civil case, referred to at PageID 147, in which an insurance company sought
reimbursement for its losses arising from Plaintiff’s criminal scheme.

7

represented at the time they pled guilty by Attorneys Larry Greger and Jim Fleisher, two of the
leading members of this Court’s criminal bar.
The PDR’s may be3 evidence supporting Plaintiffs’ Brady claim, but they do not reveal
for the first time that the relevant documents are not in the Beavercreek property room or of the
identities of Defendants Brown and Stull. Among other things, both of these Defendants were
involved with the property inspections in October 2010. Detective Brown and Officer Stull both
testified in pre-trial hearings in the Criminal Case as is shown by excerpts from their testimony
attached to the Memorandum in Opposition (Doc. No. 19-2, PageID 166-74).
Because Plaintiffs discovered their injury – destruction of the allegedly exculpatory
evidence – not later than October 19, 2010, and did not file this case until August 26, 2014, their
claims are barred by the statute of limitations. The Amended Complaint should therefore be
dismissed with prejudice.
Because this conclusion is dispositive of the case, the Court need not reach the other
questions raised by Defendants of whether claims are sufficiently pled under Twombly-Iqbal or
whether Plaintiffs waived their claims by pleading guilty.

November 7, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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 Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
3

The Magistrate Judge states “may be” because the import of the PDR’s is not evident from the face of the
documents.

8

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 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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

9