Boyce v. City Hall for Springfield Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RAMON BOYCE, et al., .

Plaintiffs,

V. Case No. 3:19-cv-181

CITY HALL FOR SPRINGFIELD, JUDGE WALTER H. RICE

OHIO, et al.,

Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANTS DERIC

NICHOLS AND BRIAN PEABODY’S MOTION FOR SUMMARY

JUDGMENT (DOC. #38) AND OBJECTION TO PLAINTIFF’S

UNAUTHENTICATED EXHIBITS (DOC. #46); TERMINATION ENTRY

Before the Court is a Motion for Summary Judgment filed by Defendants

Deric Nichols (“Nichols”) and Brian Peabody (“Peabody”) (collectively

“Defendants”). Doc. #38. Pro se Plaintiff, Ramon Boyce (“Plaintiff” or “Boyce”),

has filed a Response, Doc. #43, Exhibits in Support, Doc. #44, and a Narrative

Index to Exhibits. Doc. #45. Defendants have filed a Reply, Doc.#47, and an

Objection to Plaintiff's Unauthenticated Exhibits. Doc. #46. For the reasons set

forth below, Defendants’ Motion for Summary Judgment, Doc. #38, and Objection

to Plaintiff's Unauthenticated Exhibits, Doc. #46, are sustained.

|. Defendants’ Objection to Plaintiff's Unauthenticated Exhibits, Doc. #46

In support of his Response to Defendants’ Motion for Summary Judgment,

Doc. #46, pro se Plaintiff filed several Exhibits in Support. Doc. #44, Defendants

have filed an Objection, pursuant to Fed. R. Civ. P. 56(c)(2), to three of these

exhibits asserting that they are unauthenticated. The three exhibits are identified

by Plaintiff as follows: (1) Exhibit D, a “Transcript of Proceedings” from a

suppression hearing in the Common Pleas Court of Clark County, Ohio; /a.,

PagelD##465-478; (2) Exhibit G, Plaintiff's public records request to the Springfield

Police Division and its response to the request; /d., PagelD##487-488; and (3)

Exhibit H, approximately 100 pages of excerpts from a transcript from a

proceeding in a Clark County, Ohio court. /ad., PagelD##489-514.

Fed. R. Civ. P. 56(c)(2) permits a party to object to material cited to support

or dispute a fact on the basis that it cannot be presented in a form that would be

admissible in evidence. The Advisory Committee Notes to the 2020 Amendment

to Rule 56 state that if an objection is made, the burden is on the proponent to

show that the material is admissible as presented or explain the admissible form

that is anticipated.

Boyce has filed no response to Defendants’ Objection.

Defendants’ Objection to Exhibits D, Doc. #44, PagelD##465-478, and H,

Doc. #44, PagelD##489-514, is sustained since there is no cover sheet and no

certification from the court reporter. See Lyons v. Donahoe, No. 3:14-cv-21, 2016

WL 1070856, at *7-8 (S.D. Ohio March 16, 2016) (Rice, J.) (deposition transcript

and transcripts of administrative hearing could not be considered due to lack of a

cover sheet and reporter's certification of authenticity); see a/so Alexander v.

CareSource, 576 F.3d 551, 560 (6th Cir. 2009). The Court also sustains the

objection to Exhibit G, Doc. #44, PagelD##487-488, since these documents are not

self-authenticating pursuant to Fed. R. Evid. 902Doc. 38-1, and are not

authenticated by testimony from a person with knowledge as required by Fed. R.

Evid 803(6).

For the reasons set forth above, Defendants Objection to Plaintiff's

Unauthenticated Exhibits, Doc. #46 is sustained. The Court will not to consider

Exhibits D, G and H, Doc. #44, PagelD## ##465-478; 487-488, and 489-514 in ruling

on Defendants’ Motion for Summary Judgment. Doc. #38.

ll. Procedural and Factual Background

A. Introduction

In May 2018, pro se Plaintiff was convicted by a jury in Clark County, Ohio,

for crimes that included engaging in a pattern of corrupt activity, 18 counts of

burglary and six counts of receiving stolen property. Doc.#38-1. He was sentenced

to consecutive sentences totaling 70 years in prison. On July 2, 2020, the Second

District Court of Appeals affirmed his conviction and on December 28, 2020, the

Ohio Supreme Court declined jurisdiction. Boyce’s appeal to the United States

Supreme Court was denied on April 26, 2021. State v. Boyce, 2020-Ohio-3573,

(Ohio Ct. App. 2d Dist. Clark County 2020), appeal not allowed, 160 Ohio St. 3d

1461, 2020-Ohio0-5332, 157 N.E.3d 799 (2020) and appeal not allowed, 162 Ohio St.

3d 1412, 2021-Ohio-961, 165 N.E.3d 329 (2021) and cert. denied, 141 S. Ct. 2577

(2021).

On June 13, 2019, Boyce filed his lawsuit, Doc. #3, and on August 1, 2020,

he filed a 21-page single-spaced Amended Complaint. Doc. #7. The Amended

Complaint was signed by Boyce and three pro se Plaintiffs, asserting numerous

state and federal claims against thirteen (13) Defendants.’ On April 28, 2021, this

Court issued a Decision and Entry Adopting in Part and Rejecting in Part the

Report and Recommendations of United States Magistrate Judge, Doc. #20, and

on July 8, 2021, the Court filed an Order terminating the three pro se Plaintiffs as

parties and dismissing their claims with prejudice. Doc. #21.

As a result of these two rulings, all 13 (thirteen) Defendants were dismissed

from this case in their official capacities and 11 (eleven) of the Defendants were

dismissed in their individual capacities. Only Nichols, a uniformed K-9 patrol

officer for the Springfield Police Department and Peabody, a supervisor in the

1 Defendants included the following: (1) City Hall for Springfield, Ohio; (2) Clark County

Prosecutor David Andrew Wilson (sued in his official and individual capacities); (3)

Springfield City Police Department; (4) former Springfield Chief of Police Stephen Moody

(sued in his official capacity); (5) current Springfield Chief of Police Lee Graf (sued in his

official capacity); (6) Springfield police officer Deric Nichols (sued in his official and

individual capacities); (7) Springfield police officer Ronald Terry (sued in his official and

individual capacities); (8) Springfield police officer Michael Curtis (sued in his official and

individual capacities); (9) Springfield police officer Brian Peabody (sued in his official and

individual capacities); ( 10) Clark County Sheriff's Department (sued in its official and

individual capacities); ( 11) Clark County Sheriff Deborah Burchett (sued in her official and

individual capacities); ( 12) Clark County Sheriff's Deputy Ronny Fader (sued in his official

and individual capacities); and (13) Clark County Sheriff's Deputy Brian Melchi (sued in

his official and individual capacities).

Department's property crimes unit, remain as Defendants in their individual

capacities. Plaintiff has alleged a claim pursuant to 42 U.S.C. § 1983 against each

Defendant as a result of two different traffic stops. Specifically, Plaintiff has

alleged that Nichols’s February 28, 2017, traffic stop, and Peabody's June 21,

2017, traffic stop violated the Fourth Amendment.

B. Nichols‘s Stop of Plaintiff on February 28, 2017

At approximately 7:30 p.m. on February 28, 2017, Nichols, a 15-year veteran

of the Springfield, Ohio, Police Division, and police canine, “Gery,” a well-trained

narcotics police dog, were on a routine patrol in Springfield, Ohio. Doc. #38-2,

PagelD#354-355. Nichols stopped his marked police cruiser in a right turn only

lane at a traffic light in the city of Springfield. He observed in front of his police

cruiser a black BMW. /d., PagelD#355. When the light turned green, the BMW did

not turn right but instead proceeded straight from the turn only lane. Doc. #43,

PagelD#428. Nichols activated the overhead lights on the cruiser, pulled the BMW

over, ran the license plate through the Law Enforcement Automated Database

System (LEADS) and saw that the vehicle was registered to Boyce. Doc. #38-2,

PagelD#355. Nichols knew that Boyce was a suspect in a string of local burglaries.

/d. He then got out of his vehicle, approached the BMW, took the driver’s license

from Boyce, returned to his vehicle and because warrants are not always timely

entered into the LEADS system, contacted Dispatch to check for any current

“hard” copies of outstanding warrants for Plaintiff that may not be entered into

the LEADS system. Doc. #38-2 PagelD##356-357. Shortly thereafter, Springfield

Police Officers Meredith Freeman, Michael Casey and Sergeant Jeffrey Williams

arrived. Doc. #38-2 PagelD##356. At the request of one of the officers, Plaintiff

exited the BMW, and agreed to a search of his person, however, he refused to

consent to a search of his vehicle. /¢. Because there was no consent by Plaintiff to

a vehicle search, Nichols, who had Gery on a leash, ordered the canine to do a

“free air sniff” around the outside of the BMW. Gery indicated to Nichols the

presence of narcotics by pawing at the driver’s door. /a., PagelD#356. Based on

the reaction of the police canine, Officer Freeman and Nichols conducted a search

of the BMW and opened the trunk. /a.

Marijuana was found in a plastic panel on the floor of the trunk, along with

loose diamonds, broken cell phones, an SD card’, a bag and an envelope of cash.

/d. Plaintiff was placed under arrest and the rest of the BMW was searched which

disclosed more broken cell phones, a digital scale and a precious metal testing kit.

/d. The dash cam footage showed less than seven minutes between Nichols’s

initial stop of Boyce and the canine officer's ’s positive indication of narcotics.

Doc. #38-2, PagelD#362.

2 A SD card is used to store video and image files.

C. Peabody’s Attempted Stop of Plaintiff on June 21, 2017

On June 21, 2017, Peabody was a sergeant and the supervisor in the

property crimes unit of the Springfield, Ohio, Police Division. Doc. #38-3,

PagelD#372. His unit supervised detectives who investigated burglaries, thefts,

receipt of stolen property and other property crimes in Springfield, Ohio. /a7.

In 2016-2017, a series of burglaries occurred in Springfield, Ohio. Peabody

knew that Plaintiff had been released from prison in early 2016 after serving a

sentence for a home burglary in Springfield. Because the recent burglaries

occurred in the same general area and with the same modus operandi as

Plaintiff’s earlier burglary conviction, Peabody considered Plaintiff a suspect for

these burglaries. /o. Peabody was also aware that the Clark County, Ohio,

Sheriff's Department considered Plaintiff a suspect in burglaries being

investigated by them. As a result of this information, Peabody’s property crimes

unit worked with the Clark County Sheriff’s Department and later with the

Columbus, Ohio, Police Department, since property stolen from the Springfield

homes began appearing in pawn shops located in Columbus, Ohio. /d. A warrant

was obtained by the Clark County Sherriff’s Office to place a GPS tracking device

on Plaintiff's Chrysler 300 which permitted Peabody to receive text alerts on his

cell phone on the vehicle’s location. /a.

On June 21, 2017, at approximately 1:45 a.m., Peabody received an alert

that Plaintiff's vehicle was in an area in Springfield, Ohio, where some recent

home burglaries had occurred. /a. Peabody arrived at the location in an unmarked

police cruiser and observed Plaintiff and another individual in a Chrysler 300. He

activated his police lights on his unmarked police cruiser and instructed Plaintiff to

exit the vehicle. Plaintiff refused and although Peabody attempted to “box-in”

Plaintiff's vehicle, he was unable to do so. /d., PagelD#374. A vehicle chase

followed and at approximately 4:51 a.m., Peabody received an alert on the

location of Plaintiff's vehicle which was abandoned in a Springfield, Ohio, alley.

Peabody became aware of a report made to the Springfield Police Department

that two men had attempted to enter a nearby Springfield home. /a. A police

search of the area resulted in the recovery of Plaintiff’s cell phone in a yard. /d.

Although Plaintiff was not found on June 21, 2017, his abandoned vehicle

was impounded, his cell phone processed and on June 28, 2017, a search warrant

was issued by the Common Pleas Court of Clark County, Ohio, which permitted

the Springfield police officers to search Plaintiffs car and cell phone. /d.

Following these searches and the collection of evidence, Plaintiff was arrested and

indicted for the burglaries that occurred in Clark County.

D. Plaintiff's Convictions

The evidence collected as a result of Nichols’s February 28, 2017, stop was

used in the prosecution of Plaintiff in a marijuana trafficking case in the Clark

County Municipal Court, State of Ohio v. Ramon Andrew Boyce, Case Nos.

17CRB782 and 17TRD2462, Doc. #38-4, Page!D##389-390. This same evidence was

used in Plaintiff's felony burglary case in the Clark County Court of Common

Pleas, State of Ohio v. Ramon Boyce, Case No. 17-CR-761A. Doc. #38-5,

PagelD##391-395. Although Plaintiff filed a motion to suppress this evidence in

both cases, asserting that the “stop and subsequent search violated his

constitutional rights guaranteed by the Fourth Amendment.” Doc. #38-5,

PagelD#391, each motion was denied. Doc. ##38-4 and 38-5.

Following Plaintiff's May 2018, conviction in the Common Pleas Court of

Clark County, Ohio and the imposition of a 70-year prison sentence, Doc. #38-1,

PagelD ##306-307, he appealed to the Second District Court of Appeals. Doc. #38-

1. The state appellate court overruled Plaintiff's challenges and held, among other

things, that Nichols lawfully stopped Boyce for a traffic violation, the, search of

Plaintiff's BMW was lawful, the free-air sniff did not unreasonably prolong the

stop and the canine’s pawing of the driver’s door was sufficient probable cause

for the subsequent search of the vehicle.

Plaintiff's appeal! to the Second District Court of Appeals did not include

Peabody’s attempted stop of June 21, 2017, the later search of his Chrysler 300

and cell phone.?

ill. Summary Judgment

Summary judgment must be entered “against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

3 Although the case was remanded to the trial court for the limited purpose of correcting

an error in the sentencing entry, it was affirmed in all other relevant respects.

case, and on which that party will bear the burden of proof at trial.” Ce/otex

Corp.v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the

initial responsibility of informing the court of the basis for its motion and

identifying those portions of the record which it believes demonstrate the absence

of a genuine dispute of material fact. /d. at 323; see also Boretti v. Wiscomb, 930

F.2d 1150, 1156 (6th Cir. 1991).

“Once the moving party has met its initial burden, the nonmoving party

must present evidence that creates a genuine issue of material fact making it

necessary to resolve the difference at trial.” Ta/ley v. Bravo Pitino Rest., Ltd., 61

F.3d 1241, 1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986). Once the burden of production has so shifted, the party opposing

summary judgment cannot rest on its pleadings or merely reassert its previous

allegations. It is not sufficient to “simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go beyond the

[unverified] pleadings” and present some type of evidentiary material in support

of its position. Celotex, 477 U.S. at 324. “The plaintiff must present more than a

scintilla of evidence in support of his position; the evidence must be such that a

jury could reasonably find for the plaintiff.” Michigan Prot. & Advocacy Serv., Inc.

v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).

Summary judgment shall be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as

10

a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment will not lie if the

dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477

U.S. at 248. In determining whether a genuine dispute of material fact exists, a

court must assume as true the evidence of the nonmoving party and draw all

reasonable inferences in favor of that party. /d. at 255. If the parties present

conflicting evidence, a court may not decide which evidence to believe.

Credibility determinations must be left to the fact-finder. 10A Wright, Miller &

Kane, Federal Practice and Procedure Civil 3d § 2726 (1998). In determining

whether a genuine dispute of material fact exists, a court need only consider the

materials cited by the parties. Fed. R. Civ. P. 56(c)(3). “A district court is not...

obligated to wade through and search the entire record for some specific facts

that might support the nonmoving party's claim.” /nterRoyal Corp. v. Sponseller,

889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). If it so

chooses, however, the Court may also consider other materials in the record. Fed.

R. Civ. P. 56(c)(3).

IV. Legal Analysis

A. Introduction

Plaintiff asserts that his Fourth Amendment rights protecting against

unreasonable searches and seizures were violated by (1) Nichols’s February 28,

2017, traffic stop and the police canine’s “free air sniff” and (2) Peabody’s

11

attempted stop of him on June 21, 2017, and subsequent seizure and search of

Plaintiff's abandoned Chrysler 300 and cell phone. He seeks damages pursuant to

42 U.S.C. § 1983. This statute '"is not itself a source of substantive rights,’ but

merely provides 'a method for vindicating federal rights elsewhere conferred."'

Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443

U.S. 137, 144 n. 3 (1979)). To recover under § 1983, a plaintiff must prove that the

defendant, while acting under color of state law, violated rights secured by the

Constitution or laws of the United States. See Adickes v. S.H. Kress & Co., 398

U.S. 144, 150 (1970).

Defendants argue that there are no genuine issues of material fact and that

they are each entitled to judgment as a matter of law. They assert that Plaintiff's

claim against Nichols is barred by the statute of limitations and his claims against

both Nichols and Peabody are barred by Heck v. Humphrey, 512 U.S. 477 (1994),

res judicata and qualified immunity. Finally, they contend that the evidence

submitted with their Motion for Summary Judgment is uncontroverted and shows

that no Fourth Amendment violations occurred.

The Court will address each of Defendants’ arguments and Plaintiffs’

responses below.

12

B. Plaintiff's § 1983 Claim for an Alleged Violation of the Fourth

Amendment as to Defendant Nichols is Barred by the Statute of

Limitations

It is well-established that in § 1983 cases “the statute of limitations

commences to run when the plaintiff knows or has reason to know of the injury

which is the basis of his action,” Sevier v. Turner, 742 F.2d 262, 273 (6th Cir.

1984), and that the applicable statute of limitations is determined by state law.

Wilson v. Garcia, 471 U.S. 261, 268-69 (1985) (because 8 1983 claims are

essentially tort claims seeking recovery of damages, federal courts look to state

law). Here, the two-year statute of limitations in Ohio Revised Code § 2305.10

applies.4 The time period “begins to run when the plaintiff knows or has reason

to know that the act providing the basis of his or her injury has occurred.” Auiz-

Bueno v. Maxim Healthcare Servs., \nc., 659 Fed. Appx. 830, 831 (6th Cir. 2016)

(quoting Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir. 2007)). In § 1983 cases,

Courts determine when the cause of action accrues by looking at the event that

“should have alerted the typical lay person to protect his or her rights.”

Trzebuckowski v. City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2003).

Here, Nichols argues that the two-year statute of limitations began to run

on the date of the stop, February 28, 2017, or at the latest, June 15, 2017, the date

of the first suppression hearing in Clark County Municipal Court. Doc. #38-4.

4 Ohio Revised Code § 2305.10, entitled “Product liability, bodily injury or injury to

personal property; when certain causes of action arise” is, with some further exceptions

for product liability, essentially a two-year statute of limitations for Ohio torts.

13

Plaintiff, however, argues that the two-year statute of limitations is equitably

tolled until January 8, 2018, the date of the suppression hearing in the Common

Pleas Court of Clark County. Doc. #38-5. He asserts that before that date, Nichols

lied both in his incident report and in his municipal court testimony. Plaintiff

argues that Nichols failed to admit that prior to stopping Plaintiff, he had already

run a warrant check and learned that there were no outstanding warrants.

Therefore, he contends Nichols had no reason to detain him further, allegedly run

a second report and create the necessary time to have the police canine conduct a

free-air sniff search which led to the search of the and car and discovery of

evidence.

Attached to Defendants’ Motion for Summary Judgment are several

exhibits including a detailed affidavit of Nichols, Doc. #38-2, and a “call report”

attached as an exhibit to the affidavit. Doc. #38-2, PagelD#364. In his affidavit,

Nichols states that before he pulled Plaintiff over on February 28, 2017, he

performed a license plate check through LEADS (“Law Enforcement Automated

Data System”) and that after Plaintiff was stopped, Nichols obtained a copy of his

driver’s license and contacted the Springfield Police Department Dispatch to run a

check for any warrants on Plaintiff that may have been filed but not yet in LEADS.

Doc. #38-2, PagelD#356-357. Nichols further stated in his affidavit that, to the best

of his knowledge his testimony in the suppression hearings in the Clark County

Municipal Court and in the Clark County Common Pleas Court is consistent with

14

his affidavit and that he did not state in the Clark County Municipal Court hearing

that he had dispatch perform a warrant check before he stopped Plaintiff.

Plaintiff's evidence does not refute Nichols’s affidavit or the information in

the call report.

Based upon the evidence before the Court, there is no genuine dispute of

material fact that Nichols testified on June 15, 2017, the date of the suppression

hearing in the Clark County Municipal Court, and that he had dispatch perform a

warrant check before stopping Plaintiff on February 28, 2017. Therefore, the two-

year statute of limitations began to run on February 28, 2017, and expired on

February 28, 2019. Accordingly, because the Complaint was not filed until June

14, 2019, there is no genuine dispute of material fact that Plaintiff's § 1983 claim

asserting a violation by Defendant Nichols of his Fourth Amendment rights is

barred as a matter of law by the statute of limitations. The Motion for Summary

Judgment, Doc. # 38, as to Defendant Nichols is sustained as a matter of law.

C. Plaintiff’s § 1983 Claims for Defendants’ Alleged Violations of the Fourth

Amendment are Barred by Heck v. Humphrey, 512 U.S. 477 (1994)

Defendants next argue that Heck v. Humphrey, 512 U.S. 477, 486-87 (1994),

bars Plaintiff's § 1983 action alleging an unconstitutional search and seizure.

[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a

§ 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or

15

called into question by a federal court’s issuance of a writ of habeas

corpus.

at 486-487.

Nichols and Peabody assert the record conclusively establishes that

Plaintiff's only injury is his imprisonment, that his conviction has never been

overturned and that as a result he has no claim for violation of his Fourth

Amendment rights. Hunt v. Michigan, 482 F. App’x 20, 21-22 (6th Cir. 2012)

(plaintiff's § 1983 claim alleging an illegal search implied the invalidity of his

conviction and thus was barred by Heck).

In response, Plaintiff cites the Court to Harper v. Jackson, 293 F. App’x 389

(6th Cir. 2008). In that case, the Court held that Heck did not bar Harper's § 1983

Fourth Amendment claims because it concluded that the success of his claims

would not necessarily imply that his conviction was unlawful due to the doctrine

of inevitable discovery and the Leon good faith exception. Plaintiff incorrectly

argues that Harper limited the Heck bar of 8 1983 Fourth Amendment claim to

“only” those claims “where the contested search produced the only evidence

supporting the conviction and no legal doctrine could save the evidence from

exclusion.” /d. at 392. Although the Heck doctrine applies with some limitations

in the Fourth Amendment context, importantly, the Sixth Circuit “places the onus

on the district court to assess on a case-by-case basis whether a favorable Fourth

5 United States v. Leon, 468 U.S. 897, 913, (1984) (adopting a “good faith” exception to

the exclusionary rule where police seize evidence in reasonable reliance on a warrant

issued by a neutral magistrate).

16

Amendment judgment would impugn the validity of an outstanding conviction.”

Harper, 293 Fed. Appx. at 391-92.

Both Nichols and Peabody testified during Plaintiff's criminal trial in Clark

County Common Pleas Court concerning their interactions with Plaintiff. Nichols

testified that as a result of the canine fresh air search on February 28, 2017, the

Springfield police recovered drugs, cash and cell phones. Peabody testified that

he later found the Chrysler 300 and cell phone abandoned after his June 15, 2017,

attempted stop and that a warrant to conduct a search of the vehicle and cell

phone was later obtained. Unlike Harper’ there is no evidence before the Court

that the items recovered by Defendants would have inevitably been discovered

but for the allegedly unlawful actions of Nichols and Peabody.

Because Harper does not apply to the facts of this case, and because

Plaintiff's only injury is his imprisonment and his conviction has never been

overturned, he has no claim for violation of his Fourth Amendment rights under

Heck.

6 The facts in Harper differ significantly from Plaintiffs case in several respects including

the fact that Harper pled guilty to drug possession thereby eliminating the need for trial

testimony. Based on this fact as well as others, the Sixth Circuit concluded that

“|Blecause we cannot say that Harper's convictions for drug possession would be

impugned by concluding that the officers obtained the evidence illegally, we hold that

Heck does not bar his Fourth Amendment claims. /a. at 390.

17

For these reasons, Plaintiff's § 1983 claims under the Fourth Amendment

against Defendants are barred by Heck v. Humphrey, 512 U.S. 477 (1994).

Accordingly, there is no genuine dispute of a material fact and Defendants’

Motion for Summary Judgment, Doc. #38, is sustained as a matter of law.

D. Plaintiff's § 1983 Claims for Defendants’ Alleged Violations of the Fourth

Amendment are Barred by Aes Judicata

Defendants also argue that Plaintiff's claims against them are barred by the

doctrine of res judicata. They assert that the record shows that Plaintiff lost two

separate motions to suppress involving Nichols’ February 28, 2017, search and

seizure of his BMW in two separate courts and in his later appeal to the Second

District Court of Appeals. Additionally, they contend that the evidence before the

Court also shows that Plaintiff failed to raise in his appeal to the state appellate

court Peabody’s June 15, 2017, attempted stop of the Chrysler 300. In response,

Plaintiff again asserts that Nichols was untruthful in his testimony concerning the

February 28, 2017, stop.

Because this is a § 1983 action, the Court looks to Ohio law to determine if

Plaintiff is precluded under the theory of res judicata from raising his two separate

Fourth Amendment violations. Haring v. Prosise, 462 U.S. 306, 313 (1983),

(“Section 28 U.S.C. § 1738 generally requires ‘federal courts to give preclusive

effect to state-court judgments whenever the courts of the State from which the

18

judgments emerged would do so,’” quoting A//en v. McCurry, 449 U.S. 90, 96

(1980));

In Ohio, “[t]he doctrine of res judicata encompasses the two related

concepts of claim preclusion, also known as res judicata or estoppel by judgment,

and issue preclusion, also known as collateral estoppel.” Anderson v. City of Blue

Ash, 798 F.3d 338 (6th Cir. 2015) (quoting O'Nesti v. DeBartolo Realty Corp., 113

Ohio St.3d 59, 862 N.E.2d 803, 806 (2007). “Claim preclusion prevents subsequent

actions, by the same parties or their privies, based upon any claim arising out of a

transaction that was the subject matter of a previous action” jd, and also

“prevents litigation of those claims that could have been brought in the earlier

suit.” /d. “Issue preclusion, on the other hand, serves to prevent relitigation of any

fact or point that was determined by a court of competent jurisdiction in a

previous action between the same parties or their privies” and “applies even if the

causes of action differ.” /d. Although Defendants argue that Ohio cites 5455

Clarkins Drive, Inc. v. Poole, 384 F. App’x 458, 462-463 (6th Cir. 2010) in support of

their res judicata argument, and argues that Plaintiff is precluded under Ohio law

from raising and litigating any defense or claimed lack of due process that was

raised or could have been raised in his/her state court criminal proceedings, Ohio

does not always give preclusive effect to criminal judgments in civil or quasi-civil

litigation. Instead, the courts consider “[t]he qualitative differences between civil

and criminal proceedings including the differing standards of proof, rules of

discovery, and rules of evidence.” Ferguson v. Ct. of Claims of Ohio, Victims of

19

Crime Div., 98 Ohio St.3d 399, 786 N.E.2d 43, 48 (2003) (per curiam) (internal

quotation marks and brackets omitted); Anderson v. City of Blue Ash, 798 F.3d 338

(6th Cir. 2015) (res judicata not applied where plaintiff's ADA and FHA claims in

civil case differed from municipal criminal court’s fact finding procedures which

involved only a small fine, citation and lack of authority to order City to permit the

plaintiff to keep miniature horses on her property).

Here, however, Ohio courts would likely find that the principles of res

judicata apply. Plaintiff raised Nichols’s alleged Fourth Amendment violations

during his criminal trial and lost his argument at both the trial and appellate court

levels and, for whatever reason, he failed to raise any Fourth Amendment

violation concerning Peabody's attempted stop.

Based on the evidence, the Court finds that the doctrine of res judicata

applies and bars Plaintiff's claims against Defendants. His Fourth Amendment

claims against Nichols were fully litigated in state court and he raised no such

claim against Peabody thereby waiving his right to do so. Accordingly, there is no

genuine dispute of material fact as to what the state courts considered, what they

did not consider because it was not presented to them and how it ruled.

Defendants’ Motion for Summary Judgment based on the legal theory of res

judicata, Doc. #38, is sustained as a matter of law.

20

E. Plaintiff's § 1983 Claims for Defendants’ Alleged Violations of the Fourth

Amendment are Barred by the Doctrine of Qualified Immunity

Defendants next argue that even assuming Fourth Amendment violation

occurred, they are entitled to qualified immunity. The doctrine of qualified

immunity shields government officials from liability for civil damages for actions

taken in the scope of their duties, unless their conduct violates “clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It operates “to

ensure that before they are subjected to suit, officers are on notice their conduct is

unlawful.” Saucier v. Katz, 533 U.S. 194, 206 (2001). The doctrine protects ‘all but

the plainly incompetent or those who knowingly violate the law.’” Ashcroft v. al-

Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

It is immunity from suit as opposed to a defense to liability. Pearson v. Callahan,

555 U.S 223, 237 (2009). Because Defendants have raised it, Plaintiff bears the

burden of rebutting it. Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006).

To determine whether Nichols and Peabody are entitled to qualified

immunity, the Court must consider: (1) whether, taken in the light most favorable

to the plaintiff, “a constitutional right would have been violated on the facts

alleged”; and (2) whether the right at issue was “clearly established.” Saucier, 533

U.S. at 201. These questions need not be considered in order. Pearson, 555 U.S. at

236. If the answer to either inquiry is “no,” Defendants are entitled to qualified

immunity. If a “reasonable official in the position of the police officers could

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conclude that the officers’ conduct was lawful, then qualified immunity is

warranted.” Bullman v. City of Detroit, 787 Fed. App’x 290, 296 (6th Cir. 2019).

The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. U.S. Const. amend. IV.

Based on the evidence before the Court, Nichols February 28, 2017, stop and the

subsequent search of the vehicle were not violations of the Fourth Amendment.

On February 28, 2017, Nichols’s affidavit states he observed Plaintiff in a

BMW stopped at an intersection in Springfield, Ohio, in a right turn only lane and

that when the light changed to green, he proceeded straight ahead through the

intersection. Plaintiff does not dispute this. Nichols, as a police officer, “may stop

a vehicle that commits a traffic violation and look for evidence of a crime, even if

the traffic stop is merely a pretext and they do not have an independent

reasonable suspicion of criminal activity.” Hernandez v. Boles, 949 F.3d 251, 257

(6th Cir. 2020). Thus, Defendant had probable cause for the stop and it was not a

violation of the Fourth Amendment. Plaintiff was also ordered to get out of his

vehicle, a “de minimis intrusion” and not a violation of the Fourth Amendment,

Marshall v. City of Farmington Hills, 693 F.App’x 417, 422 (6th Cir. 2017), and the

evidence is uncontroverted that the fresh air sniff search conducted by Gery,

which later led to the interior search of the BMW, lasted for only 6 minutes and

did not “unreasonably” extend the length of a stop beyond the time necessary to

write a ticket and conduct ordinary inquiries incident to the stop.” Pillow v. City of

Lawrenceburg, 319 F. App’x 347, 350-351 (6th Cir. 2008) (dog sniff did not

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unreasonably prolong the stop since a “good faith delay of at most a few minutes

to get a citation form occurred). Based on the evidence before the Court,

Defendant Nichols is entitled to qualified immunity.

Similarly, although for different reasons, Defendant Peabody is also entitled

to qualified immunity.

Peabody’s affidavit states he knew Plaintiff was recently released from

prison after serving time for burglarizing homes in Springfield, Ohio, and that

following his release, a number of homes had been burglarized in the city. He

further states that because a warrant had been obtained to place a GPS tracker on

Plaintiff's Chrysler 300, Peabody became aware during the early morning hours of

June 15, 2017, that Plaintiff was in a “general area” where burglaries had recently

occurred. Plaintiff does not dispute any of this testimony.’ Additionally, the

evidence before the Court is that no “seizure” occurred of Plaintiff on June 15,

2017, since Peabody was unable to stop Plaintiff because he fled in his Chrysler

300 with another passenger. California v. Hodari D., 499 U.S. 621, 626-627 (1991)

(holding that a seizure under the Fourth Amendment does not occur when a police

officer orders a suspect to stop but the suspect successfully flees); see a/so United

States v. Ward, 756 F. App’x 560, 568 (6th Cir. 2018) (“The Fourth Amendment

protects against unreasonable seizures, not unreasonable attempted seizures.”).

7 Plaintiff disputes that he was not in the area of Warren Drive, Springfield, Ohio, during

the early morning hours of June 15, 2017, only because he was not within “walking

distance” of the general area. Doc. # 43, PagelD#517.

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Based on the evidence before the Court as set forth in Defendants’ affidavits

and the exhibits attached thereto, Nichols and Peabody each acted as a

reasonable police officer in similar circumstances, Bu//man, 787 Fed. App’x. at

296, and are entitled to qualified immunity. For these reasons, there is no genuine

dispute of material fact that they are entitled to qualified immunity, since

Defendants’ Motion for Summary Judgment on the issue of qualified immunity,

Doc. #38, is sustained as a matter of law.

F. Plaintiff Has No Claim for Violations Under the Fourth Amendment

Defendants’ final argument in support of their Motion for Summary

Judgment, Doc. #38, is that the uncontroverted evidence established that no

Fourth Amendment violation exists. Specifically, Nichols argues that pursuant to

Iilinois v. Cabelles, 543 U.S. 405, 409 (2005), his stop of Plaintiff was not a violation

of the Fourth Amendment because the fresh air sniff by Gery, a trained narcotics

detection dog, did not “implicate legitimate privacy” concerns. In Cabel/les, the

United States Supreme Court held that a dog sniff conducted during a ten-minute

lawful traffic stop that resulted in the dog alerting outside the car due to narcotics

inside was not a violation of the Fourth Amendment because there was sufficient

probable cause for the resulting search. Peabody argues that his June 15, 2017,

encounter of Plaintiff did not result in a stop and thus, no seizure of him occurred.

California v. Hodari D., 499 U.S. at 626-627. Additionally, this Defendant argues

that based on the evidence before the Court, Plaintiff abandoned both his Chrysler

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300 and his cell phone on June 15, 2017, so that no seizure occurred of his

property. United States v. Robinson, 390 F.3d 853, 874-875 (6th Cir.) (abandoned

property does not implicate the Fourth Amendment); United States v. Foster, 65 F.

App’x 41, 46 (6th Cir. 2003) (suspect abandoned his vehicle and cell phone by

fleeing from the scene of a traffic stop, extinguishing his expectation of privacy).

The evidence before the Court establishes that there was probable cause for

Nichols’ February 28, 2017, stop and the search by the police canine of Plaintiff's

vehicle. Additionally, the evidence shows that on June 15, 2017, Plaintiff

abandoned both his Chrysler 300 and cell phone and that a warrant was later

obtained to search both items. Therefore, Peabody committed no Fourth

Amendment violations.

Based on the uncontroverted evidence, the Court finds that there is no

genuine dispute of material fact that Defendants Nichols and Peabody violated the

Fourth Amendment. For these reasons, Defendants’ Motion for Summary

Judgment, Doc. #38, is sustained as a matter of law.

V. Conclusion

For the reasons set forth above, the Court finds that there is no genuine

dispute of material fact and that Defendants Deric Nichols and Brian Peabody are

entitled to judgment as a matter of law. Accordingly, Defendants’ Motion for

Summary Judgment, Doc. #38, is SUSTAINED for the following reasons:

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(1) As to Defendant Deric Nichols, Plaintiff's § 1983 claim asserting a

violation of the Fourth Amendment is barred by the statute of

limitations, Ohio Revised Code 8 2305.10;

(2) As to Defendants Deric Nichols and Brian Peabody, Plaintiffs’ § 1983

claims asserting a violation of the Fourth Amendment are barred

pursuant to (a) Heck v. Humphrey, 512 U.S. 477(1994); (b) res

judicata; (c) qualified immunity; and (d) lack of a Fourth Amendment

violation.

Judgment is to enter in favor of Defendants, Deric Nichols and Brian

Peabody, and against pro se Plaintiff, Ramon Boyce.

The captioned case is hereby terminated upon the docket records of the

United States District Court for the Southern District of Ohio, Western Division at

Dayton.

Date: March 28, 2023 L/amr WN. (res

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

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