The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DALE GRIMM, :
Plaintiff,
Case No. 3:20-cv-003
v. :
JUDGE WALTER H. RICE
BETH CAPPELLI, et. al.,
Defendants. :
DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATIONS (DOC. #9);
OVERRULING PLAINTIFF'S OBJECTIONS (DOC. #10); SUSTAINING
DEFENDANTS’ MOTION TO DISMISS DEFENDANT CAPPELLI
PURSUANT TO RULE 12(b)(6) FOR FAILURE TO STATE A CLAIM
(DOC. #3) WITH PREJUDICE; DISMISSING WITHOUT PREJUDICE
TO REFILING DEFENDANTS SAMPSON AND DONATELLI;
PLAINTIFF'S REQUEST FOR ADDITIONAL TIME OVERRULED;
TERMINATION ENTRY
On April 6, 2020, United States Magistrate Judge Michael J. Newman
issued a Report and Recommendations, Doc. #9. He recommended that: (1) the
Motion to Dismiss, Doc. #3, filed by Defendant, Beth Cappelli (“Defendant
Cappelli”), be granted; (2) Plaintiff's claims against Defendant Cappelli be
dismissed pursuant to Fed. R. Civ. P. 12(b)(6); and (3) Plaintiff's claims against
Defendants, Bob Sampson (“Defendant Sampson”) and Mark Donnatelli
(“Defendant Donatelli”’) be dismissed pursuant to Fed. R. Civ. P. 4(m) because of
Plaintiff's failure to serve these Defendants by April 2, 2020;? and (4) that this case
be terminated on the Court's docket.
This matter is before the Court on Objections to that Report and
Recommendations filed by Plaintiff, Dale Grimm (“Plaintiff” or “Grimm”), Doc.
#10. Defendant Cappelli has filed a Memorandum in Opposition to Plaintiff's
Objections, Doc. #12, and Grimm has filed a Reply, Doc. #13.
I. Background and Procedural History
Grimm, a pro se litigant, alleges that on December 18, 2017, he visited
Fairborn Municipal Court. Doc. #2, PAGEID#32. As he entered the public building,
the Complaint alleges that he was “accosted by an individual with a name tag” of
Bob Sampson (“Defendant Sampson”). Plaintiff alleges that Defendant Sampson
(1) insisted on “seeing the contents of his pockets;” (2) had him walk through a
“portal-type device” that made a “beeping sound;” and (3) “waved a wand type
device” around his body. /d. The wand device also allegedly “made a beeping
noise.” /d.
'The correct spelling of Defendant’s name is “Mark Donatelli.”
2Said dismissal is without prejudice, given that Fed. R. Civ. P. 4(m) provides for such a
dismissal.
-
At the conclusion of his visit, Plaintiff alleges that he spoke with Defendant
Sampson and reminded him that looking through his pockets required “a warrant
issued under probable cause, upon oath or affirmation” and identifying “any
locations to be searched or items to be seized.” /o¢. Defendant Sampson allegedly
disagreed with Plaintiff, admitted he had no warrant and refused to provide
Grimm identification when asked. /a., PAGEID#33.
Following this visit and verbal exchange, Plaintiff alleges that he wrote a
letter to Defendant Cappelli® explaining what had happened to him and requesting
information concerning Defendant Sampson “so that action could be taken
against him.” /d. In response to his letter, Plaintiff received a letter from
Defendant Donatelli* citing “Rule 9 from the Ohio Supreme Court® mandating
Complaint does not identify Defendant Cappelli. The Court, however, takes judicial
notice, pursuant to Fed.R.Evid. 201, that this Defendant is the judge of the Municipal
Court in Fairborn, Ohio. https:/Awww.fairbornmunicipalcourt.us/judge.php.
‘The Complaint does not identify Defendant Donatelli. The Court, however, takes judicial
notice, pursuant to Fed.R.Evid. 201, that this Defendant is an attorney licensed to practice
law in Ohio. □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
5Rule 9 of the Rules of Superintendence for the Courts of Ohio reads as follows: RULE 9.
Court Security Plans. (A) Court Security Plan For purposes of ensuring security in court
facilities, each court shall develop and implement a court security plan. If more than one
court occupies a court facility, the courts shall collectively develop and implement a
single court security plan. In addition to any other provisions necessary to satisfy the
purposes of this rule, the plan shall address the provisions of the Ohio court security
standards adopted by the Supreme Court and as set forth in Appendix C to this rule. (B)
Public Access For purposes of ensuring security in court facilities, a court security plan,
including any security policy and procedures manual, emergency preparedness manual,
and continuity of operations manual adopted as part of the court security plan, shall not
be available for public access.
inferior courts to adopt security measures.” /o. Grimm responded to Defendant
Donatelli reminding him that “the security of my person is guaranteed by both the
U.S. Constitution and the Ohio Constitution.” /a.
As alleged in the Complaint, Defendant Cappelli has violated her oath of
office as well as Grimm’s Fourth Amendment rights under the United States
Constitution and “Section 1, §14” of the Ohio State Constitution (“Article 1, §
1.14”).6 The Complaint further alleges that Defendants have “either violated the
security of my person or conspired to violate the security of my person” in
violation of the Fourth Amendment to the United States Constitution and Article 1,
§ 1.14, under the Ohio State Constitution. /o., PAGEID##33-34. The Complaint
does not provide any details in support of this alleged conspiracy. Grimm seeks
money damages for “embarrassment, humiliation and the feeling of being
violated unnecessarily.” /a., PAGEID#34.
The Court will analyze Plaintiff's Objections and make a de novo review of
those portions of the Report and Recommendations to which proper Objections
have been made. Fed. R. Civ. P. 72(b)(3); 28 U.S.C. 8 636(b)(1).
6The Complaint, Doc. #2, PAGEID##33-34, incorrectly refers to Article 1, Section 1.14 of
the Ohio State Constitution as “Section 1, § 14 of the Ohio Constitution.”
ll. Plaintiff's Objections
The Court has reviewed Plaintiff's Objections, Doc. #10, Defendant
Cappelli’s response, Doc. # 12, and Plaintiff's Reply, Doc. #13. With respect to
Defendant Cappelli, Plaintiff's Objections “question the validity of 42 U.S.C.
§ 1983,” asserting that the United States Constitution “guarantees a person's right
to petition the Government for a redress of grievances” and that Congress has
“enacted a law [42 U.S.C. § 1983] which violates the First Amendment.” /d. at
PAGEID#79. The Objections also contend that the cases cited by the Magistrate
Judge for suspicionless searches do not address the entrance to government
buildings. /a.
Concerning Defendants Sampson and Donatelli, Plaintiff's Objections assert
that these Defendants should not be dismissed since Plaintiff never received a
notice from the Magistrate Judge that they must be served on or before April 2,
2020, or that they could be dismissed. /d. Grimm states that “[t]he only official
documents | have received are the notice of transfer to this court [Doc. #1] and the
denial of my motion to compel [Doc. #6].” Doc. #10, PAGEID#79.
Finally, because of the COVID-19 virus and the state of emergency declared
by Governor DeWine on March 10, 2020, Plaintiff states that his “ability to handle
this matter or to consult with others more knowledgeable has been “seriously
hampered” and that he is prevented from “venturing outside” his home. Doc. #10,
PAGEID##79-80. Because of this, Plaintiff asserts that he “will accept a dismissal
of this matter without prejudice” and “reservel[s] the right to refile once it is again
safe for me to venture outside.” /d., PAGEID#80.
ill. The Report and Recommendations, Doc. #9
A. Plaintiff's Claims Under Article I, § 1.14, of the Ohio State Constitution
and Fourth Amendment Unreasonable Search and Seizure provision of the
United States Constitution, 42 U.S.C. § 1983
Plaintiff's Complaint alleges that Defendant Cappelli violated his
constitutional rights under the search and seizure provision, Article |, 8 1.14, of the
Ohio State Constitution, and the Fourth Amendment of the United States
Constitution. Grimm seeks monetary damages and compensation for his
“embarrassment, humiliation and the feeling of being violated unnecessarily.”
Doc. #2, PAGEID#34.
It is well-established that no private right of damages exists for violations
of rights under the Ohio Constitution. In Provens v. Stark Cty. Bd. of Mental
Retardation & Developmental Disabilities, 64 Ohio St. 3d 252, 261, 594 N.E.2d 959
(1992), the Ohio Supreme Court held that “[T]here [is] no private constitutional
remedy for the plaintiff-appellant's claims in that the Ohio Constitution itself does
not provide for a civil damage remedy.” The Ohio Supreme Court also noted in
Provens that “there are rather extensive legislative and regulatory schemes
providing for the bringing of complaints and charges emanating from civil rights
violations.” /d. at 261, 594 N.E.2d 959. In Wesaw v. City of Lancaster, No.
22005CV0320, 2005 WL 3448034, at **4-5 (S.D. Ohio Dec. 15, 2005)(Smith, J.), the
district court, citing Provens, held that there is no private cause of action for civil
torts arising under the Ohio Constitution, Article 1, § 1.14, the search and seizure
provision. This is because “violations of rights secured under the Ohio
Constitution do not, in and of themselves, confer a private right of damages” and
because the plaintiffs’ claim “under the search and seizure provisions of the Ohio
Constitution is a restatement of their federal claim under the Fourth Amendment
to the United States Constitution. Section 1983 provides a full panoply of
remedies for a search and seizure claim under the United States Constitution.” /a.
at *5.
For the reasons stated above, the Court adopts this portion of the
Magistrate Judge’s filing that recommends that Plaintiff's claims against
Defendant Cappelli, under Article |, § 1.14, of the Ohio Constitution, be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6).
The Report and Recommendations also analyzed Plaintiff's claims against
Defendant Cappelli for a violation of his Fourth Amendment rights under the
United States Constitution. Such a claim exists, if at all, under 42 U.S.C. § 1983,
which “provides for a private right of action against any person who, under color
of state law, violates another person’s federal rights.” Hardin v. Straub, 954 F.2d
1193, 1198 (6th Cir. 1992).
In reviewing the Complaint and its allegations of a potential § 1983 claim,
the Court notes that Plaintiff alleges that Defendant Cappelli is individually liable
to him for damages by “approving” Defendant Sampson's “illegal searches” at
the Fairborn Municipal Court. As a judge, however, Defendant Cappelli has
absolute immunity from any civil suit seeking money damages if her actions are
undertaken in a judicial capacity. Barnes v Winchell, 105 F.3d 1111, 1115-1116 (6th
Cir. 1997). Even if it is determined that her alleged approval of Defendant
Sampson’s illegal searches was not done in a judicial capacity such that no
absolute immunity exists, Defendant Cappelli may still not be liable for
“approving” the “illegal searches” because of qualified immunity.
Qualified immunity exists unless (1) "the facts alleged make out a violation
of a constitutional right;" and (2) "the right at issue was ‘clearly established’ when
the event occurred such that a reasonable [state actor] would have known that his
[or her] conduct violated it[.]" Martin v. City of Broadview Heights, 712 F.3d 951,
957 (6th Cir. 2013). As the Report and Recommendations explains, the Complaint
fails to allege any facts showing a violation by Defendant Cappelli of Plaintiff's
clearly established Fourth Amendment rights. The Fourth Amendment protects
against “unreasonable searches and seizures.” United States v. Sharpe, 470 U.S.
675, 682 (1985). Routine suspicionless searches “at entrances to courts and other
official buildings” are reasonable. Chandler v. Miller, 520 U.S. 305, 323 (1997):
City of Indianapolis v. Edmond, 531 U.S. 32, 47-48 (2000). Plaintiff's Objections
assert that these cases cited and relied on in the Report and Recommendations
are inapposite since Chand/er concerns “drug testing” and Edmond concerns
“sobriety checks.” Although Chandler did concern drug testing, the Supreme
Court determined that because the drug testing was being given to candidates to
qualify for state office, it was not a constitutionally permissible suspicionless
search. In reversing the Court of Appeals, Justice Ginsburg stated the following:
We reiterate, too, that where the risk to public safety is substantial
and real, blanket suspicionless searches calibrated to the risk may
rank as ‘reasonable’—for example, searches now routine at airports
and at entrances to courts and other official buildings.
Id. at 323 (emphasis added) (citations omitted).
In Edmond, motorists filed a class action complaint against the city, mayor
and members of the police department alleging that drug interdiction checkpoints
violated their Fourth Amendment rights against unreasonable search and seizure.
The Ohio Supreme Court agreed and held that these checkpoints were in violation
of the Fourth Amendment. In reaching this decision, Justice O'Connor noted that
“[OJur holding also does not affect the validity of border searches or searches at
places like airports and government buildings, where the need for such measures
to ensure public safety can be particularly acute.” Id. at 48 (emphasis added).
There is no allegation in the Complaint that the search that Plaintiff alleges
he experienced at the Fairborn Municipal Court was anything other than a
constitutionally permissible suspicionless search. In fact, based on the allegations
of the Complaint, Plaintiff's search was adopted as a result of Rule 9 of the Ohio
Supreme Court for security measures.’ The Court, therefore, finds no violation of
a constitutional right.
For the reasons set forth above, the Court adopts the Magistrate Judge’s
filing that recommends that Plaintiff's claims against Defendant Cappelli, under
the Fourth Amendment of the United States Constitution, be dismissed pursuant
to Fed. R. Civ. P. 12(b)(6). Said dismissal is with prejudice.
B. Failure to Serve Defendant Sampson and Defendant Donatelli
The Magistrate Judge recommends that Plaintiff's claims against
Defendants Sampson and Donatelli be dismissed under Fed. R. Civ. P. 4(m), since
Plaintiff failed to serve these Defendants within 90 days after January 3, 2020, the
date the removal was filed in this Court. Doc. #9, PAGEID##72 and 77. According
to the Report and Recommendations, Plaintiff was notified that service on
Defendants Sampson and Donatelli must be completed or an extension requested
on or before April 2, 2020. Plaintiff's failure to do so could result in dismissal. /d.
citing Doc. #8, PAGEID#57. As stated above, Plaintiff admits receiving the copy of
the Order Denying his Motion to Compel, Doc. #8. In this Order, the Magistrate
Judge states in footnote 1, on page one, the following:
'Service of process must be completed within 90 days after the
filing of the complaint and, if service is not completed in that
’The Report and Recommendations also correctly reasons that any claim that Plaintiff
may have against Defendant Cappelli in her “official capacity” fails to state a claim. Such
a claim would be against the Fairborn Municipal Court, a state agency entitled to
sovereign immunity under the Eleventh Amendment.
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time, the Court must dismiss the action as against the
unserved Defendants without prejudice. See Fed. R. Civ. P.
4(m). In cases removed to a federal court from a state court,
the 90-day period set forth in Rule 4(m) commences on the
date removal is complete. See Medien v. Estate of Meyers, 273
F. App’x 464, 470 (6th Cir. 2008). Accordingly, in this case, all
Defendants must be served on or before April 2, 2020. Plaintiff
is NOTIFIED that his failure to complete service on Defendants
Sampson and Donnatelli on or before April 2, 2020[,] may
result in the dismissal of his complaint against them without
prejudice.
/d., PAGEID#57.
Plaintiff admits to having received Doc. #8, and there is no dispute but that
the first page of this pleading states that he must serve Defendants Sampson and
Donatelli by April 2, 2020. For whatever reason, Plaintiff failed to do so; nor did he
seek an extension. Accordingly, the Court adopts this portion of the Report and
Recommendations and dismisses Defendants Sampson and Donatelli, without
prejudice, pursuant to Fed. R. Civ. P. 4(m).
C. Plaintiff's Request for a Dismissal Without Prejudice or that Service be
Extended to 60 Days after Ohio’s State of Emergency is Lifted
Plaintiff asserts in his Objections that as a 70-year old in a pandemic and a
state of emergency declared by the Governor of Ohio, he is prevented from
“venturing outside” his home. /o. He asserts that “[W]ith each correspondence |
receive in this matter, more research is necessary.” /a. He also contends that
[M]ore research is also required in locating the other two defendants. /a. | have
located one of them, but not the other.” /ad. He requests that his case be
11
dismissed without prejudice and that he be permitted the right to refile “once it is
safe for him to venture outside.” /a.
Plaintiff's alleged need to conduct more research and inability to do so as a
result of the March 10, 2020, state of emergency in Ohio, is not an objection as
defined by Fed. R. Civ. P. 72(b)(2) but, rather, a request for additional time.
Plaintiff's response to Defendant Cappelli’s Motion to Dismiss was filed February
24, 2020, prior to the March 10, 2020, state of emergency in Ohio and his
objections to the Report and Recommendations were timely filed on April 16,
2020. No request was made before that date for an extension of time.
Additionally, and as stated above, the Court has dismissed Plaintiff's claims
against Defendants Sampson and Donatelli without prejudice to refiling, thus
giving Plaintiff the opportunity to refile his case against these two Defendants if
he should choose to do so.
Accordingly, because Plaintiff has timely filed his objections and based on
the Court's ruling as to Defendants Sampson and Donatelli, Plaintiff's request for
additional time is overruled.
IV. Conclusion
For the reasons set forth above, the Court adopts the Report and
Recommendations, Doc. #9, OVERRULES the Objections of Plaintiff, Doc. #10, and
SUSTAINS Defendants’ Motion to Dismiss Defendant Beth Cappelli pursuant to
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Fed. R. Civ. P. 12(b)(6), Doc. #3, thus, dismissing all claims against this Defendant
with prejudice and dismissing all claims against Defendants Sampson and
Donatelli without prejudice to refiling. Plaintiff's request for additional time is
OVERRULED.
Judgment is to be entered in favor of Defendants, Beth Cappelli, Bob
Sampson and Mark Donatelli, and against Plaintiff.
The captioned cause is hereby ordered terminated upon the docket records
of the United States District Court for the Southern District of Ohio, Western
Division, at Dayton.
Lene * me
Date: October 19, 2020
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
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