“[W]e hold that R.C. 2305.10 is Ohio's general statute of limitations for personal injury applicable to claims under Section 1983, Title 42, U.S.Code, filed in state court.”
How later courts described this case
- “[W]e hold that R.C. 2305.10 is Ohio's general statute of limitations for personal injury applicable to claims under Section 1983, Title 42, U.S.Code, filed in state court.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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NOVELLE PALOMINO, :
: Case No. 1:21-cv-2139
Plaintiff, :
:
vs. : OPINION & ORDER
: [Resolving Docs. 49, 52]
CUYAHOGA COUNTY, , :
:
Defendants. :
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JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
This civil rights case comes from an Ohio criminal prosecution for one count of
gross sexual imposition. At trial, a jury found Plaintiff Novelle Palomino not guilty.
Plaintiff Palomino now brings this case alleging federal and state law violations.
Among other individuals and entities, Plaintiff sues Defendants Cleveland City Police
Department and Officer Michael Moctezuma.
On October 6, 2022, Defendants Moctezuma and the City of Cleveland moved for
judgment on the pleadings on Plaintiff’s federal claims and for this Court to decline
supplemental jurisdiction over Plaintiff’s state-law claims.1
For the following reasons, the Court GRANTS Defendants Michael Moctezuma and the
City of Cleveland’s Fed. R. Civ. P. 12(c) motion for judgment on the pleadings.
I. BACKGROUND
A. Factual Allegations
Plaintiff works as a maintenance technician for K&D Apartments.2 On February 18,
2019, Defendant Maritza Mendez invited Plaintiff to enter her apartment, located in a
1 Doc. 49.
complex where Plaintiff worked.3 Mendez resided at the apartment. Plaintiff knew
Defendant Mendez and described an earlier friendly relationship.4
While inside the apartment, Plaintiff put his arm around Defendant Mendez.5
Defendant Karen Simone—Defendant Mendez’s sister—later called 911 and reported that
Plaintiff had assaulted Defendant Mendez.6 Two police officers arrived at Defendant
Mendez’s apartment.7 At that meeting, Defendant Mendez told the officers Plaintiff did not
touch her.8 Shortly thereafter, one of the officers took Plaintiff into custody.9 That officer
eventually told Defendant Mendez that “it was clear she had not been assaulted” and that
his supervisor authorized the two police officers to release Plaintiff Palomino.”10
The next day, Defendant Mendez filed a police report with the Cleveland City Police
Department’s First District Precinct.11 In her report, she claimed that Plaintiff Palomino had
sexually assaulted her by grabbing her neck and waist and pulling her close to him while
he had an erection.12 She also claimed that he tried to “bite her rear end.”13
Mendez’s report was referred for investigation to Defendant Michael Moctezuma, a
Cleveland Police Department officer. Officer Moctezuma interviewed numerous witnesses,
including Defendant Mendez, Defendant Simone, Mendez’s daughters, and a
3 . at ¶ 29.
4
5 . at ¶¶ 30–31.
6 . at ¶ 32.
7 . at ¶ 34.
8 .
9 . at ¶¶ 35, 37.
10 . at ¶ 37.
11 . at ¶ 41.
12 .
13 .
representative of K&D Apartments.14 Officer Moctezuma then filed a felony gross sexual
imposition charge against Plaintiff Palomino.15 Plaintiff alleges that during his investigation,
Officer Moctezuma never spoke with the officers who originally answered Defendant
Simone’s call and who had determined at the time that no assault occurred.16
The Cuyahoga County Grand Jury indicted Plaintiff on April 16, 2019.17 The State
dismissed this initial case and then re-indicted Palomino on January 14, 2020. A jury found
Plaintiff not guilty on June 14, 2021.18
B. Claims against Police Defendants
Plaintiff sues both the Cleveland Police Department19 and Officer Moctezuma in his
personal and official capacities. Specifically, Plaintiff brings a 42 U.S.C. § 1983 claim
against Officer Moctezuma for failure to investigate and a § 1983 claim against Cleveland
for failure to properly train and supervise Officer Moctezuma.
Plaintiff argues that Officer Moctezuma should have interviewed the officers who
initially determined that Plaintiff had not committed an assault, and that he should have
questioned the inconsistencies between Defendants Mendez and Simone’s initial
statements and the statements they later made in the police report and during the
14 . at ¶ 42.
15 .
16 . at ¶ 43.
17 .
18 . at ¶ 46.
19 The City of Cleveland argues that its Police Department is and that the
City responds on Officer Moctezuma’s behalf. Doc. 49 at PageID #: 572 n.3. Plaintiff did
not contest the City’s argument in his Opposition to Defendants’ Motion for Judgment on
the Pleadings, so the Court accepts the City’s position.
interviews he conducted.20 Plaintiff sues the Police Department for failure to train Officer
Moctezuma in correct investigative procedure.21
Plaintiff also raises state law claims for abuse of process, civil conspiracy, intentional
infliction of emotional distress, civil rights violation under Ohio law, and dereliction of
duty.22
II. ANALYSIS
A. Legal Standard
“After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard for motions for
judgment on the pleadings is the same as the standard for motions to dismiss under Rule
12(b)(6).23 “All well-pleaded material allegations of the pleadings of the opposing party
must be taken as true, and the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment as a matter of law.”24
20 Doc. 15-1 at ¶ 85-88.
21 . at ¶101-105.
22 Doc. 15-1 at ¶¶ 84-126, 132-133.
23 ., 307 F. Supp. 3d 719,
727 (S.D. Ohio 2018).
24 , 875 F.3d 344, 346 (6th Cir. 2017) (citation omitted).
B. Discussion
1. Failure to Investigate
a. Statute of Limitations
Defendants argue that the statute of limitations bars Plaintiff’s failure-to-investigate
claim against Defendant Moctezuma.25 The Court agrees.
The statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio is
contained in Ohio Rev. Code Ann. § 2305.10. That statute requires claims for bodily injury
be filed within two years after their accrual.26 In other words, the two-year personal injury
statute of limitations controls § 1983 claims.27
Here, Plaintiff was first indicted by a grand jury on April 16, 2019. Thus, Officer
Moctezuma’s alleged failure to investigate would have occurred at some point before
Plaintiff’s indictment on April 16, 2019. Plaintiff did not commence this action until
November 10, 2021, more than two years after his indictment.28 His claim is time-barred.
b. Qualified Immunity
Even if Plaintiff’s claims against Officer Moctezuma were not time-barred, Officer
Moctezuma is entitled to qualified immunity.
25 The parties dispute whether Plaintiff has raised a failure-to-investigate or a false-arrest
claim under § 1983. Since the statute of limitations is the same for either claim and has
expired either way, the difference is not meaningful.
26 , 869 F.2d 989, 992 (6th Cir. 1989).
27 , 119 Ohio St. 3d 305, 312 (2008) (“[W]e hold that R.C. 2305.10 is
Ohio's general statute of limitations for personal injury applicable to claims under
Section 1983, Title 42, U.S.Code, filed in state court.”) (emphasis added).
28 Doc. 1.
“Qualified immunity, if it applies, is a defense not just against liability, but against
suit itself.”29 “Hence, insubstantial claims against government officials should be resolved
as early in the litigation as possible, preferably prior to broad discovery.”30 Once a
defendant raises qualified immunity as a defense, “plaintiff bears the burden of showing
that defendants are not entitled to qualified immunity. At the pleading stage, this burden is
carried by alleging facts plausibly making out a claim that the defendant's conduct violated
a constitutional right that was clearly established law at the time, such that a reasonable
officer would have known that his conduct violated that right.”31
Here, Plaintiff argues that Officer Moctezuma violated a constitutional right clearly
established by law because he lacked probable cause to arrest Plaintiff for gross sexual
imposition.
But Plaintiff was indicted by a grand jury on two separate occasions, once in April 2019
and again in January 2020. A grand jury indictment “creates a presumption that probable
cause existed, one that the plaintiff can overcome only by showing that the defendant
fabricated evidence or recklessly made false statements outside the grand jury.”32
Plaintiff has not alleged that Officer Moctezuma fabricated evidence. And while
Plaintiff has alleged that Officer Moctezuma failed to investigate some inconsistencies in
witness testimony, these allegations do not rise to the level of showing that Moctezuma
“recklessly made false statements” in his recommendations to prosecutors. Officer
Moctezuma interviewed three eye-witnesses—Defendant Mendez and her two daughters—
29 , 790 F.3d 649, 653 (6th Cir. 2015).
30 .
31 . (citations omitted).
32 , 984 F.3d 1156, 1164 (6th Cir. 2021).
as well as Defendant Simone and the K&D Apartments representative. His actions in
arresting Plaintiff and recommending to prosecutors that Plaintiff be charged were based
directly on witness testimony and were not recklessly false.
2. Failure to Train
“[A]xiomatically,” there is no municipal liability under § 1983 “unless there is an
underlying unconstitutional act” committed against the plaintiff.33 Because the Court finds
that Defendant Moctezuma did not commit an underlying unconstitutional violation of
Plaintiff’s rights, Plaintiff’s claims against the City also fail.
3. Supplemental Jurisdiction
“A district court […] may decline to exercise supplemental jurisdiction over a claim if it
has dismissed all claims over which it has original jurisdiction. If the federal claims are
dismissed before trial, the state claims generally should be dismissed as well.”34
The Court has granted Defendants’ motion for judgment on the pleadings as to both of
Plaintiff’s federal claims. The Court declines to exercise supplemental jurisdiction over
Plaintiff’s remaining state-law claims. If Plaintiff wishes to pursue the state-law claims,
Plaintiff will need to file a new state-law action in Ohio state courts.
III. CONCLUSION
For these reasons, the Court GRANTS Defendants’ motion for judgment on the pleadings
and declines to exercise supplemental jurisdiction over Plaintiff’s remaining state-law claims.
Plaintiff’s state-law claims against Defendants Moctezuma and the City of Cleveland are
DISMISSED.
33 . at 1165.
34 , 965 F.3d 507, 519 (6th Cir. 2020) (citation omitted).
IT IS SO ORDERED.
Dated: November 21, 2022
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE