The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEMETRIUS MOORE ) CASE NO. 1:19-CV-01634
)
)
Plaintiff, ) JUDGE DAN AARON POLSTER
)
vs. )
) OPINION AND ORDER
TORRIS MOORE, et al., )
)
Defendants. )
Before the Court is Defendant the City of East Cleveland, Ohio’s 12(b)(6) Motion to
Dismiss, Doc #: 3. For the following reasons, Defendant’s Motion to Dismiss is GRANTED in
part and Denied in part.
I. Background
On or around February 8, 2011, Defendants Torris Moore and Antonia Malone executed
a search warrant for 13505 Woodworth, Apartment #2, Cleveland, Ohio. Doc #: 1 at 3. During
the search of the premises, Defendants Moore and Malone allegedly seized items and arrested
Plaintiff Demetrius Moore. Doc #: 1 at 3-4. Plaintiff was indicted in the Cuyahoga County Court
of Common Pleas on February 22, 2011 on one count of trafficking drugs in violation of Ohio
Rev. Code Ann. § 2925.03.A(1), two counts of trafficking drugs in violation of Ohio Rev. Code
Ann. § 2925.03A(2), two counts of drug possession in violation of Ohio Rev. Code Ann.
§ 2925.11.A, one count of having weapons while under disability in violation of Ohio Rev. Code
Ann. § 2923.13.A(3), and one count of Possessing Criminal Tools in violation of Ohio Rev.
Code Ann. § 2923.24.A. Cuyahoga County Court of Common Pleas, Case No. CR-11-547165-B.
On February 25, 2011, Defendant was arraigned and pleaded not guilty. Cuyahoga County Court
of Common Pleas, Case No. CR-11-547165-B, nondocument order dated 2/25/2011. On August
22, 2011, Defendant pleaded guilty to two counts of trafficking drugs and one count of having
weapons while under disability. Cuyahoga County Court of Common Pleas, Case No. CR-11-
547165-B, nondocument order dated 8/22/2011. Defendant was sentenced to four years in
prison. Id.
On December 13, 2016, the State of Ohio filed a motion to vacate conviction and
sentence. Doc #: 3-1. In the attached brief, the State of Ohio explained that the Cuyahoga County
Prosecutor was no longer confident in Plaintiff’s conviction because Defendants Malone and
Moore “were convicted on charges relating to police misconduct, including conspiracy and
making false statements.” Doc #: 3-1 at 2. On July 18, 2017, the Cuyahoga County Court of
Common Pleas granted the motion to vacate conviction and sentence. Doc #: 8-1.
On July 17, 2019, Plaintiff filed a complaint in this Court seeking damages under 42
U.S.C. § 1983. Doc #: 1. Plaintiff alleges that Defendants Moore and Malone are individually
liable under § 1983 because they: (1) obtained the search warrant on 13505 Woodworth,
Apartment #2, Cleveland, Ohio based on false allegations; (2) executed a search warrant that
they knew was not valid; (3) intended to appropriate cash by executing the search warrant; (4)
seized several items, including cash, some of which they kept for themselves; (5) falsely arrested
Plaintiff; and (6) knowingly made false statements to the Grand Jury that indicted Plaintiff. Doc
#: 1 at 2-5.
Plaintiff alleges that Defendant the City of East Cleveland, Ohio is liable under § 1983
because it: (1) knew or should have known of the unconstitutional activities of its officers and
should have taken steps to stop the illegal conduct and (2) did not properly train its officers. Doc
#: 1 at 5-6.
On October 8, 2019, Defendant the City of East Cleveland, Ohio filed a 12(b)(6) Motion
to Dismiss. Doc #: 3. Plaintiff filed a Response on November 11, 2019. Doc #: 5-1. The City of
East Cleveland, Ohio filed a Reply on November 27, 2019. Doc #: 7. Plaintiff filed an
Addendum to his Response on December 3, 2019. 1 Doc #: 8.
II. Standard of Review
A motion to dismiss for failure to state a claim is granted when it appears beyond doubt
that the plaintiff can prove no set of facts in support of her claim which would entitle her to
relief. Little v. UNUM Provident Corp., 196 F. Supp. 2d 659, 662 (S.D. Ohio 2002) (citing
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In reviewing a motion to dismiss for failure to state
a claim, a district court must accept as true all well-pleaded allegations and draw all reasonable
inferences in favor of the non-moving party. See Shoup v. Doyle, 974 F.Supp.2d 1058, 1071
(S.D. Ohio 2013) (citing Handy-Clay v. City of Memphis, Tenn., 695 F.3d 531, 538 (6th Cir.
2012). In addition to the complaint, a Court may consider “materials [that] are public records or
are otherwise appropriate for the taking of judicial notice.” New Eng. Health Care Emples.
Pension Fund v. Ernst & Young LLP, 336 F.3d 495, 501 (6th Cir. 2003) (citation omitted). Facts
may be judicially noticed when they are not subject to reasonable dispute because they “can be
1 Defendant filed a memorandum in opposition to Plaintiff’s Addendum to Response. Doc #: 9. Plaintiff’s
Addendum to Response merely added an exhibit which should have been attached to the Response. Doc #: 8. It did
not change the arguments in any way. Defendant’s memorandum in opposition does not challenge the admission
of the exhibit, but rather argues the merit of the Motion to Dismiss. Accordingly, the memorandum in opposition is
not in actuality a memorandum in opposition to Plaintiff’s Addendum, but rather a brief on the merits. Defendant
already filed a Reply brief, in which it addresses the arguments Plaintiff raises in his Response to the Motion to
Dismiss. The Court therefore declines to consider Defendant’s memorandum in opposition to Plaintiff’s Addendum
to Response.
accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.” Fed Rules Evid R. 201(b)(2).
A court may grant a motion to dismiss if, on the face of the complaint, there is an
insurmountable bar to relief indicating that the plaintiff does not have a claim. Little, 196 F.
Supp. 2d at 662 (citation omitted).
III. Discussion
Defendant argues that Plaintiff’s claims are barred by the statute of limitations. Doc #: 3
at 1. This argument implicates two questions: (A) what the applicable statute of limitations is and
(B) when the statute of limitations began to run.
A. Applicable Statute of Limitations
Defendant initially argues that a one-year statute of limitations under Ohio Rev. Code
Ann. § 2305.11 applies to Plaintiff’s § 1983 claim against Moore and Malone and that a two-year
statute of limitations under Ohio Rev. Code Ann. § 2305.10 applies to Plaintiff’s § 1983 claim
against the City of East Cleveland, Ohio. Doc #: 3 at 3-4. Yet, in its reply, Defendant appears to
agree with Plaintiff that the two-year statute of limitation applies to both § 1983 claims. Doc #: 7
at 2.
The Court agrees that the two-year statute of limitations under Ohio Rev. Code Ann.
2305.10 applies to all of Plaintiff’s claims. The statute of limitations for a § 1983 claim is the
state’s general statute of limitations for personal injury claims. Owens v. Okure, 488 U.S. 235,
236 (1989). Ohio’s general statute of limitations for personal injury is Ohio Rev. Code Ann.
§ 2305.10. Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989). Ohio Rev. Code Ann.
§ 2305.10 provides a statute of limitations of two years from the time the cause of action accrues.
Thus, the statute of limitations for all of Plaintiff’s § 1983 claims is two years.
B. When the Statute of Limitations Started Running
A statute of limitations starts running upon the accrual of the cause of action. Ohio Rev.
Code Ann. § 2305.10. The accrual date of a § 1983 action is determined by federal law. Wallace
v. Kato, 549 U.S. 384, 388 (2007). A claim generally accrues under federal when “the plaintiff
has ‘a complete and present cause of action, . . . that is, when ‘the plaintiff can file suit and
obtain relief.’” Id. The “discovery rule” used by the Sixth Circuit provides that a cause of action
accrues “when plaintiff knew of or should have known of the injury which forms the basis of
their claims.” Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001) (citation omitted). “This inquiry
focuses on the harm incurred, rather than the plaintiff’s knowledge of the underlying facts which
gave rise to the harm.” Id. “A plaintiff has reason to know of his injury when he should have
discovered it through the exercise of reasonable diligence.” Id.
An exception to these general accrual rules is set forth in Heck v. Humphrey, 512 U.S.
447 (1994). In Heck, the Supreme Court held that a § 1983 claim which would render a
conviction or sentence invalid does not accrue until the conviction or sentence has been
invalidated. Id. at 486-87. For the claim to not accrue, the claim must “necessarily imply the
invalidity of [the] conviction or sentence.” Id. at 487. The Supreme Court later clarified that
Heck’s deferred accrual rule only applies when the claim accrues after defendant was convicted.
Wallace v. Kato, 549 U.S. 348, 393 (2007).
Defendant asserts that Plaintiff knew of the injury on December 13, 2016, when the State
of Ohio filed its Motion to Vacate Conviction and Sentence. Doc #: 3 at 4. Thus, the statute of
limitations was triggered on December 13, 2016. Conversely, Plaintiff asserts that he was unable
to bring his § 1983 claims until the Motion to Vacate was granted on July 18, 2017.2 Doc #: 5-1
at 3. Thus, the statute of limitations was triggered on July 18, 2017.
Both Plaintiff and Defendant fail to appreciate that there are claim-specific rules for when
claims accrue. Pethtel v. Wash. County Sheriff’s Office, Case No. 2:06-cv-799, 2007 U.S. Dist.
LEXIS 60105, * 22 (S.D. Ohio Aug. 16, 2007). Plaintiff’s complaint makes factual allegations
then summarily alleges § 1983 claims based on violations of the Fourth, Fifth, and Fourteenth
Amendments. Doc #: 1. However, the complaint fails to make clear what acts of the Defendants
violated the Fourth, Fifth and Fourteenth Amendment. This Court interprets Plaintiff’s complaint
as containing three acts on which he basis his § 1983 claims: (1) improper search and seizure of
property; (2) false arrest and false imprisonment; and (3) malicious prosecution.
1. Improper Search and Seizure of Property
To the extent Plaintiff’s § 1983 claims are based on the alleged improper search and
seizure of property, the claims are barred by the statute of limitations. A claim under § 1983 for
improper search and seizure accrues at the time the search and seizure takes place so long as the
plaintiff is aware it is taking place. Shakleford v. Hensley, Case No. 12-194-GFVT, 2013 U.S.
Dist. LEXIS 136183, at *10 (E.D. KY Sept. 24, 2013); Geary v. Brantley, Case No. 4:12CV-
P33-M, 2012 U.S. Dist. LEXIS 117140, at *9 (W.D. KY Aug. 16, 2012); see Harper v. Jackson,
293 Fed. Appx. 389, 291 n. 1 (6th Cir. 2008).
According to Plaintiff’s complaint, he was present on February 8, 2011 when the search
and seizure took place. Doc #: 1 at 3. He was therefore aware or should have been aware of the
injury (the search and seizure) as of February 8, 2011. Because more than two years elapsed
between the date his claim accrued, February 8, 2011, and the date his complaint was filed, July
2 Plaintiff’s Reply alleges that the conviction was vacated on July 17, 2017. However, the Cuyahoga County Court of
Common Pleas documents show that the conviction was vacated on July 18, 2017. Doc #: 8-1.
17, 2019, Plaintiff’s § 1983 claim based on improper search and seizure is not timely. Thus,
Plaintiff’s § 1983 claims are dismissed to the extent they are based on the alleged improper
search and seizure.
2. False Arrest & False Imprisonment
To the extent Plaintiff’s § 1983 claims are based on false arrest or false imprisonment, the
claims are barred by the statute of limitations. A § 1983 claim based on false arrest or false
imprisonment leading from a false arrest accrues when the plaintiff becomes detained pursuant to
legal process. Wallace, 549 U.S. at 397. A plaintiff is detained pursuant to legal process when he
or she is “bound over by a magistrate or arraigned on charges.” Id. at 390.
Plaintiff was arraigned on February 25, 2011. Cuyahoga County Court of Common Pleas
Case No. CR-11-547165-B, nondocument order dated 2/25/11. Accordingly, the statute of
limitations on Plaintiff’s § 1983 claim based on false arrest expired on February 25, 2013. Thus,
Plaintiff’s § 1983 claims are dismissed to the extent they are based on Plaintiff’s alleged false
arrest or false imprisonment.
3. Malicious Prosecution
To the extent Plaintiff’s § 1983 claims are based on malicious prosecution, Plaintiff’s
claims are timely. The statute of limitations for a malicious prosecution claim begins to run when
the criminal charge is dismissed. Fox v. DeSoto, 489 F.3d 227, 235 (6th Cir. 2007) (citing
Wallace, 127 S. Ct. at 1098); Wilson v. Mammoth Video, Inc., Case Nos. 07-13394, 07-13395,
2009 U.S. Dist. LEXIS 23451, at *8 (E.D. MI Mar. 24, 2009). Here, Plaintiff’s charges were
vacated on July 18, 2017 and he filed his complaint on July 17, 2019 – within the two-year
statute of limitations. Doc #: 8-1. Thus, Plaintiff’s § 1983 malicious prosecution claims are
timely.
V. Conclusion
Because Plaintiff’s claims based on improper search and seizure, false arrest, and false
imprisonment accrued more than two years before he filed his complaint, those claims are barred
by the statute of limitations. Plaintiff’s claims based on malicious prosecution accrued less than
two years before the complaint was field and so are not barred by the statute of limitations. Thus,
Defendant’s Motion to Dismiss, Doc #: 3, is GRANTED in part and DENIED in part.
IT IS SO ORDERED.
/s/Dan Aaron Polster December 6, 2019
DAN AARON POLSTER
UNITED STATES DISTRICT COURT