The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JEFFREY BROWN, ) CASE NO. 1:19CV1694
)
Plaintiff, ) JUDGE CHRISTOPHER A. BOYKO
)
Vs. )
)
CITY OF EAST CLEVELAND, ET AL., ) OPINION AND ORDER
)
Defendant. )
CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendant City of East Cleveland’s Motion to
Dismiss. (ECF # 4). For the following reasons, the Court grants Defendant’s Motion.
According to his Complaint, on November 5, 2013, Jeffrey Brown was driving his car
when he was pulled over by Defendant Police Officer Antonio Malone in front of a store
owned and operated by Brown. According to Brown, Malone forced him out of his car at
gunpoint and searched Brown. Malone then placed Brown in handcuffs and put him in the
back seat of an East Cleveland police cruiser newly arrived on the scene. Malone then
searched Brown’s business and detained Brown’s children Ja-Kayla and Jayden as well as
Brown’s employee Demetrious Brantley. Brown and Brantley were arrested and transported
to East Cleveland Jail.
Malone and Defendant Torris Moore, another East Cleveland Police Officer, then
went to Brown’s residence and place of business and removed money and valuables.
According to Brown, Officers Moore and Malone had no search warrant and there was no
probable cause to search Brown’s business and residence or to remove money and valuables.
Based on the Officers’ false testimony, Brown was indicted on multiple offenses, pled guilty
to some of the offenses and served six months in prison. Shortly thereafter, Moore and
Malone were both indicted and convicted on multiple federal offenses and are presently
serving time in prison.
Subsequently, Brown’s conviction was vacated on April 17, 2017.
Brown’s Complaint alleges claims under 42 U.S.C. § 1983 for violations of his
Fourth, Fifth and Fourteenth Amendments rights under the United States Constitution.
Brown further alleges Monell claims against East Cleveland for violations of his
Constitutional rights due to East Cleveland’s failure to train, supervise its Officers and due to
the unlawful policies and practices of the City of East Cleveland.
East Cleveland moves to dismiss Brown’s claims because they are subject to the
doctrine of res judicata and are time barred. According to Defendant, Brown’s claims were
originally filed in Brown v. Moore, et al. 18 CV 192. In that action, on August 22, 2018, the
Court dismissed Brown’s claims for failure to prosecute due to Brown’s failure to appear at a
CMC despite being noticed, failure to update his address with the Court, failure to oppose
Defendant’s Motion to Dismiss and for failure to Object to the Magistrate Judge’s Report and
Recommendation recommending dismissal without prejudice for failure to prosecute.
Brown subsequently filed a Motion to Reinstate his claims, alleging he changed his
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address but he failed to submit to the Court any evidence he informed the Court of his address
change. The Magistrate Judge recommended and the Court adopted the Report and
Recommendation denying Plaintiff’s Motion to Reinstate his claims.
Brown refiled his Complaint with the Court on July 24, 2019. Defendant’s Motion to
Dismiss merely alleges res judicata with absolutely no development or argument. Defendant
further contends Brown’s claims are barred by the two year statute of limitation under
applicable Ohio law. Brown’s conviction was overturned on April 17, 2017, but Defendant
asserts that Brown’s conviction was vacated on December 29, 2016, therefore, according to
Defendant, his refiling his time barred.
Brown opposes the Motion to Dismiss contending that res judicata does not apply
since the Court never addressed the merits of Plaintiff’s original Complaint and the dismissal
was expressly without prejudice. Brown further contends his refiling was within the one-year
limitation period established for refiling under Ohio’s Saving Statute and is therefore, not
time barred.
LAW AND ANALYSIS
Standard of Review
“In reviewing a motion to dismiss, we construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in
favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). Factual
allegations contained in a complaint must “raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). Twombly does not “require heightened fact
pleading of specifics, but only enough facts to state a claim to relief that is plausible on its
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face.” Id. at 570. Dismissal is warranted if the complaint lacks an allegation as to a necessary
element of the claim raised. Craighead v. E.F. Hutton & Co., 899 F.2d 485 (6th Cir. 1990).
The United States Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), discussed
Twombly and provided additional analysis of the motion to dismiss standard:
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because
they are no more than conclusion, are not entitled to the assumption
of truth. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations. When there
are well-plead factual allegations a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement
to relief. Id. at 1950.
When a court is presented with a Rule 12(b)(6) motion, it may consider the complaint
and any exhibits attached thereto, public records, items appearing in the record of the case and
exhibits attached to defendant’s motion to dismiss so long as they are referred to in the
complaint and are central to the claims contained therein. See Amini v. Oberlin Coll., 259
F.3d 493, 502 (6th Cir. 2001).
Res Judicata
Pursuant to the doctrine of res judicata, “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, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) (citations omitted). “For res judicata to
apply, the following elements must be present: (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.” Bragg v. Flint Bd. of Educ.,
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570 F.3d 775, 776 (6th Cir. 2009).
Here, the Court’s dismissal of Brown’s original Complaint was expressly “without
prejudice.” Thus, the Court’s dismissal was not a determination on the merits and res
judicata does not bar the subsequent pleading. Nor does the Court’s denial of Brown’s
Motion to Reinstate act as a subsequent ruling on the merits. Therefore, Brown’s refiled
action is not barred by the doctrine of res judicata.
Time Barred
City of East Cleveland contends Brown’s claims are time-barred as his refiling was
more than two years after his conviction was vacated. “Because 42 U.S.C § 1983 does not
specify a statute of limitations, courts apply the statute of limitations from the state’s general
personal injury statute, which in this case is two years for cases filed in Ohio.” McKenzie v.
Highland Cty., Ohio Sheriff's Office, No. 1:18-CV-78, 2018 WL 6437419, at *3 (S.D. Ohio
Dec. 7, 2018), report and recommendation adopted sub nom. McKenzie v. Highland Cty.
Sheriff's Office, No. 1:18-CV-00078-MRB, 2019 WL 1440726 (S.D. Ohio Mar. 31, 2019)
citing Trzebuckowski v. City of Cleveland, 319 F. 3d 853, 855-56 (6th Cir. 2003) (citing
Owens v. Okure, 488 U.S. 235, 249-50 (1998) ). “Although the limitations period for § 1983
actions is borrowed from state law, federal law governs when the limitations period begins to
run.” Stanley v. Malone, No. 2:07-cv-694, 2009 WL 485491, at *4 (S.D. Ohio Feb. 26, 2009)
(citing Wallace v. Kato, 549 U.S. 384, 388 (2007) ). The statute of limitations begins to run
when “the plaintiff knew or should have known of the injury which forms the basis for his or
her claim.” Id. (citing Roberson v. Tenn., 399 F.3d 792, 794 (6th Cir. 2005); Sevier v. Turner,
742 F.2d 262, 273 (6th Cir. 1984) ). “We have held, however, that in light of the Supreme
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Court's ruling in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994),
‘[a] cause of action under § 1983 that would imply the invalidity of a conviction does not
accrue until the conviction is reversed or expunged, and therefore the statute of limitations
does not begin to run until such an event occurs, if ever.’” Wolfe v. Perry, 412 F.3d 707, 714
(6th Cir. 2005) quoting Shamaeizadeh v. Cunigan, 182 F.3d 391, 394 (6th Cir.), cert. denied,
528 U.S. 1021, 120 S.Ct. 531, 145 L.Ed.2d 412 (1999).
Defendant relies on the docket entry of December 29, 2016, which shows Brown’s
conviction was vacated. However, the exact same entry was docketed on April 17, 2017. A
review of both the Cuyahoga County Court of Common Pleas docket and Eighth District
Court of Appeals docket confirms that the December 29, 2016 Order vacating Brown’s
conviction was itself vacated because Brown had appealed his conviction prior to December
2016 and the Court of Common Pleas was without jurisdiction to vacate the conviction while
the appeal was pending. Upon remand, the Court of Common Pleas vacated Brown’s
conviction on April 17, 2017. Thus, the triggering date is the date Brown’s conviction was
vacated, to wit, April 17, 2017 not December 29, 2016.
Brown’s original Complaint was dismissed on August 22, 2018, therefore, under Ohio
law, Brown had until April 2019 to refile his Complaint. Brown did not refile his Complaint
until July 24, 2019. Thus, Brown’s refiled Complaint was refiled more than two years after
the triggering event.
Brown argues that because he refiled less than a year after the dismissal he receives
the benefit of Ohio’s Savings Statute. “When we use a state's Statute of Limitations, we also
use its procedural rules affecting that Statute of Limitations.” Coleman v. Dep't of Rehab. &
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Corr., 46 F. App'x 765, 769 (6th Cir. 2002) citing West v. Conrail, 481 U.S. 35, 39–40 n. 6,
107 S.Ct. 1538, 95 L.Ed.2d 32 (1987). Thus, this Court must consider Ohio’s Savings
Statute.
Ohio’s Savings Statute is found in O.R.C. § 2305.19 and reads:
In an action commenced, or attempted to be commenced, if in due time a
judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than
upon the merits, and the time limited for the commencement of such action at
the date of reversal or failure has expired, the plaintiff ... may commence a
new action within one year after such date. (Emphasis added).
By its plain terms, the Savings Statute only applies if the original action was dismissed
after the limitations period had run. Here, Brown still had nearly eight months to refile within
the limitations period. He did not. Because the original dismissal occurred within the
limitations period and Brown waited until after it expired to refile, his claims are time-barred.
Therefore, the Court grants Defendant’s Motion and dismisses Brown’s claims against
Defendant City of East Cleveland.
IT IS SO ORDERED.
DATED: November 6, 2019 /s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
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