McCormick v. Franklin County Court of Common Pleas Domestic Division

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MOSES MCCORMICK, et al., :

: Case No. 2:19-cv-03329

Plaintiffs, :

: JUDGE ALGENON L. MARBLEY

v. :

: Magistrate Judge Jolson

FRANKLIN COUNTY COURT OF COMMON :

PLEAS, DOMESTIC DIVISION, et al., :

:

Defendants. :

OPINION & ORDER

I. INTRODUCTION

This matter is before the Court on Defendants Franklin County Municipal Court, City of

Columbus, Columbus Division of Police, and William Wallace’s Motion for Judgment on the

Pleadings. Doc. 154. The matter is fully briefed, and the Court will resolve the Motion without

oral argument. For the reasons set forth below, the Court GRANTS Defendants’ Motion [#154].

II. BACKGROUND

Plaintiffs Moses and Mark McCormick filed a 256-page Complaint, alleging that several

state courts, agencies, and their employees conspired against them in violation of their

constitutional rights, in connection with Moses McCormick’s divorce proceedings. Plaintiffs

bring this action under 42 U.S.C. § 1983 and the RICO statute, codified at 18 U.S.C. § 1962. Many

of Plaintiffs’ allegations are difficult to follow, but with respect to the Defendants at issue in this

Motion, Plaintiffs raise the following claims:

1. Defendant Franklin County Municipal Court

On August 2, 2017, Scioto Management filed an eviction action against Plaintiff Moses

McCormick in the Franklin County Municipal Court. Plaintiffs assert that the Court sent out a late

court summons to Mr. McCormick, with the intent to hold an eviction hearing without his presence.

Plaintiffs allege this was done in retaliation for Plaintiffs filing a bankruptcy action and meeting

with the FBI to inform them about the corrupt practices of the Franklin County Court of Common

Pleas, Domestic Division. See Doc. 1 at 51-58.

2. Defendant City of Columbus

While named as a Defendant in the Complaint, the Court was unable to ascertain any

specific allegations against the City of Columbus. Rather, it appears the City of Columbus has

been accused of authorizing the behavior of Defendants Columbus Division of Police and

Detective William Wallace under a Monell liability theory.

3. Defendant Columbus Division of Police and Detective William Wallace

On October 27, 2016, Plaintiff Moses McCormick called and advised the Columbus

Division of Police that he would like to file a police report because he was being followed. The

unnamed officer who arrived on the scene did not write a police report, but instead suggested to

Mr. McCormick that his suspicion of being followed was all in his head. About a week later, Mr.

McCormick’s vehicle was damaged. Plaintiffs assert that the officer’s inaction caused damage to

their business, person, and property.

On January 10, 2017, Moses McCormick began receiving repeated phone calls from a

number he did not recognize. Mr. McCormick came to find out that it was Detective William

Wallace of the Columbus Division of Police, Missing Persons Unit. Detective Wallace informed

Mr. McCormick through text message that charges were going to be filed against him in connection

with his children. Mr. McCormick asserts that Detective Wallace was acting in collusion with

several other Defendants in this action to scare him into turning over his kids to his ex-wife.

Finally, Moses McCormick contends that he was the victim of a forgery that took place at

the Franklin County Court of Common Pleas Domestic Division and that the Columbus Division

of Police failed to investigate. Plaintiffs again assert that the Columbus Division of Police was

working in concert with several Defendants to deprive them of constitutional rights; namely,

Moses McCormick’s constitutional right to parent his children. See Doc. 1 at 108-128.

III. STANDARD OF REVIEW

Motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c)

are analyzed using the same standard applicable to a motion to dismiss under Rule 12(b)(6).

JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). “For purposes of a

motion for judgment on the pleadings, 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.” Id. (quoting Southern Ohio Bank v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). The Court need not, however,

“accept as true legal conclusions or unwarranted factual inferences.” Id. at 581-82 (quoting Mixon

v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)). Rather, a Rule 12(c) motion “is granted when no

material issue of fact exists and the party making the motion is entitled to judgment as a matter of

law.” Id. at 582 (quoting Paskavan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235

(6th Cir. 1991)).

IV. ANALYSIS

Defendants move for judgment on the pleadings on several different grounds. The Court

will address each of Defendants’ arguments, in turn, below.

1. Claims Against Defendant Franklin County Municipal Court

Defendants argue that all claims against the Franklin County Municipal Court must be

dismissed because Ohio state courts are not capable of being sued. The Court agrees.

Federal Rule of Civil Procedure 17(b) governs the ability to sue or be sued in federal court.

See Fed. R. Civ. P. 17(b). Whether a suit can be brought against a state court is determined by

state law. See Fed. R. Civ. P. 17(b)(3). The Sixth Circuit has held that state courts within Ohio

cannot be sued. See Fields v. Doe, 2008 U.S. App. LEXIS 28481, at *4 (6th Cir. 2008) (“The

Brown County Court of Common Pleas is not an entity capable of being sued. Ohio law provides

that a court cannot be sued. Therefore, [plaintiff] cannot maintain a cause of action against the

county court.”) (internal citations omitted). Accordingly, Plaintiffs’ claims against Defendant

Franklin County Municipal Court are DISMISSED.

2. Claims Against Defendant Columbus Division of Police

Defendants argue that the claims against the Columbus Division of Police must be

dismissed because under Ohio law, a department or division of a city is incapable of being sued.

The Court agrees. See Jones v. Marcum, 197 F. Supp. 2d 991, 997 (S.D. Ohio 2002) (“Police

departments are not sui juris; they are merely sub-units of the municipalities they serve.”).

Accordingly, Plaintiffs’ claims against Defendant Columbus Division of Police are DISMISSED.

3. Claims Against Defendant City of Columbus

Defendants argue that all claims against Defendant City of Columbus must be dismissed.

First, Defendants argue that to the extent Plaintiffs assert claims under 42 U.S.C. §§ 1983, 1985,

or 1986, such claims are barred by the statute of limitations. Plaintiffs do not contest this argument,

but instead suggest that all of their claims are brought pursuant to the RICO statute, 18 U.S.C. §

1962. See Doc. 167 at 6 (“The claims asserted against City of Columbus, CPD, William Wallace

are not time barred by statute of limitations. The claims against them are for violations of RICO

Law.”). Hence, to the extent Plaintiff asserts stand-alone claims under 42 U.S.C. §§ 1983, 1985,

and 1986 against any Defendant in this Motion, those claims are DISMISSED.

Additionally, Defendant City of Columbus asserts that the RICO claims against them must

be dismissed because a municipality cannot form the specific intent necessary to be held liable

under RICO laws. The Court agrees. See Tarini v. Tarini, 2014 WL 4549186, at *10 (S.D. Ohio

Sept. 12, 2014) (Marbley, J.) (“The Sixth Circuit has indeed held that counties and municipalities

cannot form the intent necessary to be held liable under RICO laws.”) (citing Call v. Watts, 1998

WL 165131, at *2 (6th Cir. Apr. 2, 1998) (“Counties are not persons under RICO because they

lack the capability to form the mens rea requisite to the commission of the predicate acts.”));

Mathis v. Ohio Dept. of Job & Family Servs., 2011 WL 5075824, *2 (S.D. Ohio Oct. 25, 2011)

(“Similar to . . . counties, municipalities, and corporations . . . ODJFS cannot form the requisite

criminal intent to be held liable under civil RICO laws.”). Plaintiffs’ RICO claims against

Defendant City of Columbus are, therefore, DISMISSED.

4. Claims Against Defendant William Wallace

Finally, Defendants assert that the RICO claims against Detective William Wallace must

be dismissed because (1) Plaintiffs failed to serve Defendant Wallace with a summons and a copy

of the Complaint, (2) Plaintiffs failed to assert a cognizable injury, and (3) Plaintiffs failed to

plausibly allege that Defendant Wallace committed the necessary predicate acts under the RICO

statute.

Federal Rule of Civil Procedure 4(c)(1) requires a plaintiff to serve a summons upon a

defendant with a copy of the complaint. This must be done within 90 days of the complaint being

filed. Fed. R. Civ. P. 4(m). “If a defendant is not served within 90 days after the complaint is

filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action

without prejudice or order that service be made within a specified time.” Jd. The 90-day time

limit may be extended by the court only if the plaintiff demonstrates good cause for failure to

timely serve the defendant.

Here, Plaintiffs filed their Complaint on May 8, 2019, but to date have not served

Defendant Wallace with a summons and a copy of the Complaint. Plaintiffs offer no explanation

for why they have failed to do so, and do not ask for more time to complete this process.

Accordingly, the claims against Defendant William Wallace are DISMISSED WITHOUT

PREJUDICE pursuant to Federal Rule of Civil Procedure 4(m). The Court need not reach

Defendant Wallace’s remaining arguments.

V. CONCLUSION

For the reasons stated herein, the Court GRANTS Defendants’ Motion for Judgment on

the Pleadings [#154]. Defendants Franklin County Municipal Court, City of Columbus, and

Columbus Division of Police are hereby DISMISSED from this suit. Defendant William Wallace

is DISMISSED WITHOUT PREJUDICE.

IT ISSO ORDERED.

CHIEF UNIFED STATES DISTRICT JUDGE

DATED: May 4 2020