# Boyce v. City Hall for Springfield Ohio

> District Court, S.D. Ohio · March 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10382140

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** March 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10382140. Public record. Not legal advice.