Atkinson v. Muskingum County Commissioners

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ERIC R. ATKINSON,

Plaintiff,

v. Civil Action 2:19-cv-2562

Judge James L. Graham

Magistrate Judge Jolson

MUSKINGUM COUNTY

COMMISIONERS, et al.,

Defendants.

REPORT AND RECOMMENDATION AND ORDER

This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Third Cause

of Action (Doc. 11) and Defendants’ Motion to File Their First Amended Answer (Doc. 13). It is

RECOMMENDED that Defendants’ Motion to Dismiss Plaintiff’s Third Cause of Action be

GRANTED. Further, Defendants’ Motion to File Their First Amended Answer is GRANTED,

and the Clerk is directed to file Doc. 13-1 as Defendants’ First Amended Answer.

I. BACKGROUND

Plaintiff Eric Atkinson, a pro se prisoner, is currently incarcerated at Noble Correctional

Institution. (Doc. 3 at 3). Defendants are the Muskingum County Commissioners, Muskingum

County Sheriff’s Department, Deputy Sergeant Ryan Williams, Deputy Ryan Dodson, Deputy

Michael Lynn, Deputy Jeremy Archer, and K-9 Deputy Narco. (Id. at 4).

The following allegations are taken from Plaintiff’s Complaint: On October 29, 2017,

members of the Muskingum County Sheriff’s Department made contact with the Plaintiff at his

home after receiving a complaint that he assaulted the mother of his children. (Id., ¶ 5). Deputies

spoke to Plaintiff through a kitchen window, and Plaintiff indicated that they could not come inside

without a warrant. (Id., ¶¶ 6–8).

Shortly thereafter, Defendant Williams allegedly raised the screen in the window and,

along with Defendant Dodson, “dove through the kitchen window,” landing on top of Plaintiff.

(Id., ¶ 10). Plaintiff was knocked unconscious from his head hitting the floor, and Defendants

Williams and Dodson “began to punch on the Plaintiff with closed fist[s].” (Id., ¶ 11). After being

handcuffed, another deputy on the scene, Defendant Archer, “punched the Plaintiff twice more

with a closed fist” causing Plaintiff to fall “back to the floor.” (Id., ¶ 12). Defendant Archer “also

allowed his K-9 partner Defendant Narco to aggressively put its face within inches of the plaintiff,

as if Defendant Archer was going to allow Defendant Narco to bite Plaintiff with no provocation.”

(Id., ¶ 13). While he was unconscious, Defendants Williams, Archer, Dodson, and Lynn “punched

and kicked Plaintiff repeatedly.” (Id., ¶ 15). Deputies then dragged Plaintiff outside where he

“began coming to and started screaming for help.” (Id., ¶ 17). He was subsequently taken to the

hospital where he was treated for a number of injuries to his head and face. (Id., ¶¶ 18–19).

After leaving the hospital, Plaintiff was taken to Muskingum County Jail “where on several

occasions [he] complained of damages to his left eye and right ear and was told by the jail staff

that he would be fine.” (Id., ¶ 20). Plaintiff contends that he was subject to medical indifference

at the Jail because he “daily asked to see an optometrist or doctor” and his requests were “ignored.”

(Id., ¶ 22).

After filing an initial two-count Complaint (Doc. 3), Plaintiff filed a purported Third Cause

of Action against Defendants Williams, Dodson, Archer, Lynn, and K-9 Narco for entering his

residence without a warrant or probable cause in violation of the Fourth Amendment, (Doc. 10).

Defendants filed the instant Motion to Dismiss and Motion to File First Amended Answer, which

have been fully briefed and are ripe for resolution.

II. DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S THIRD CAUSE OF

ACTION (Doc. 11)

Defendants move to dismiss Plaintiff’s third cause of action pursuant to Rule 12(b)(6).

That Rule requires that a complaint “state a claim to relief that is plausible on its face” to survive

a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 663–64, 678 (2009); Bell Atl. Corp v.

Twombly, 550 U.S. 544, 570 (2007). In reviewing the complaint, a court must construe it in favor

of the plaintiff and accept all well-pleaded factual allegations as true. Id. at 57. “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.” Iqbal, 556 U.S. at

678 (emphasis added) (citing Twombly, 550 U.S. at 556).

On the other hand, a complaint that consists of “labels and conclusions” or “a formulaic

recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555; see also

Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (noting that a plaintiff must give

specific, well-pleaded facts, not just conclusory allegations). In other words, while “detailed

factual allegations” are not required under Fed. R. Civ. P. 8(a)(2)’s “short and plain statement”

rule, the law “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Iqbal, 556 U.S. at 677–78 (quoting Twombly, 550 U.S. at 555) (citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

Defendants argue that Plaintiff’s third cause of action should be dismissed “because his

claim challenges acts, which if proven, would render his conviction invalid and, therefore, is not

cognizable under” § 1983. (Doc. 11 at 3 (citing Heck v. Humphrey, 512 U.S. 477, 490 (1994)); id.

at 3–5 (developing argument)).

Under Heck, a prisoner may not bring a § 1983 action “where success would necessarily

imply the unlawfulness of a (not previously invalidated) conviction or sentence.” Wilkinson v.

Dotson, 544 U.S. 74, 81 (2005). Here, Plaintiff pled guilty to charges of felonious assault,

domestic violence, and resisting arrest. See State v. Atkinson, No. CT2018-0015, 2018 WL

5279078, at *1 (Ohio Ct. App. Oct. 22, 2018). But in his third cause of action, he alleges that

Defendants entered his residence without a warrant or probable cause in violation of the Fourth

Amendment. (See generally Doc. 10). “Through this argument, Plaintiff attempts to do exactly

what Heck bars: justify his acts of resistance and contest his conviction for resisting arrest.”

Hayward v. Cleveland Clinic Found., 759 F.3d 601, 614 (6th Cir. 2014). “If Plaintiff were to

succeed on an illegal home entry claim, it would render his arrest unlawful and imply the invalidity

of his underlying guilty plea for resisting arrest.” Id.; see also id. at 613 (citations omitted) (“An

unconstitutional entry makes an arrest unlawful under Ohio’s resisting arrest statute.”). The

Undersigned will, therefore, recommend that Defendants’ Motion to Dismiss be granted and that

Plaintiff’s third cause of action be dismissed “for lack of subject matter jurisdiction pursuant to

Fed. R. Civ. P. 12(h)(3), rather than” under Rule 12(b)(6), “because the former course of action is

not an adjudication on the merits and would allow the prisoner to reassert his claims if his

conviction or sentence is latter invalidated.” Brown v. City of Columbus, No. 2:18-CV-521, 2018

WL 3105766, at *3 (S.D. Ohio June 25, 2018), report and recommendation adopted, No. 2:18-

CV-521, 2018 WL 4654693 (S.D. Ohio Sept. 27, 2018) (collecting cases).

III. DEFENDANTS’ MOTION TO FILE THEIR FIRST AMENDED ANSWER (Doc.

13)

Defendants seek leave to amend their Answer in light of Plaintiff’s alleged admission “that

he did not present facts relating to his complaint in any grievance procedure.” (Doc. 13 at 2). Rule

15(a)(2) of the Federal Rules of Civil Procedure provides that, when a party must seek leave of

court to amend a pleading, “[t]he court should freely give leave when justice so requires.” This

rule, which allows a liberal policy in favor of granting amendments, “reinforce[s] the principle that

cases ‘should be tried on their merits rather than the technicalities of the pleadings.’” Inge v. Rock

Fin. Corp., 388 F.3d 930, 936 (6th Cir. 2004) (quoting Moore v. City of Paducah, 790 F.2d 557,

559 (6th Cir. 1986)). Thus, the trial court enjoys broad discretion in deciding motions for leave to

amend. See Gen. Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). In exercising

its discretion, the trial court may consider such factors as “undue delay, bad faith or dilatory motive

on the part of a movant, repeated failures to cure deficiencies by amendments previously allowed,

undue prejudice to the opposing party by virtue of allowance of the amendment and futility of the

amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).

This case is in its early stages. Discovery is not set to close for more than two months, and

Plaintiff has not made any showing that he would suffer undue prejudice as a result of the

amendment or that the amendment itself is futile. Indeed, Plaintiff has not opposed Defendants’

Motion, but rather filed a purported Response restating his claims, responding to Defendants’

affirmative defenses, and denying some of Defendants’ factual contentions. (See generally Doc.

15). Under these circumstances, and in light of the liberal policy favoring amendments, the Court

will grant Defendants’ Motion to File Their First Amended Answer.

IV. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that Defendants’ Motion to Dismiss

Plaintiff’s Third Cause of Action (Doc. 11) be GRANTED and that Plaintiff’s third cause of action

be dismissed for lack of subject matter jurisdiction pursuant to Rule 12 12(h)(3), rather than under

Rule 12(b)(6). Further, Defendants’ Motion to File Their First Amended Answer (Doc. 13) is

GRANTED, and the Clerk is directed to file Doc. 13-1 as Defendants’ First Amended Answer.

IT IS SO ORDERED.

Date: November 21, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE