Opinion
Civil Action 2:06-CV-262.
April 22, 2008
OPINION AND ORDER
This is a civil rights action under 42 U.S.C. § 1983 in which plaintiff, an inmate at the Ross Correctional institution who is proceeding without the assistance of counsel, alleges that defendant police officers violated his civil rights when they arrested plaintiff in his home and subjected him to excessive force. This matter is now before the Court on several pending motions. The Court will address each motion in turn.
Following a voluntary dismissal on January 29, 2007, this case was reopened on July 25, 2007. Doc. Nos. 65-68 and 72. Pursuant to this Court's Order, Doc. No. 72, defendants filed a statement of the status of motions pending at the time the case was closed. Doc. No. 75. Upon review of the docket, the Court agrees with defendants that several motions were pending at the close of the case. See Doc. Nos. 43, 49, 50, 60 and 62. These motions, in addition to motions that have been filed subsequent to the reopening, will be addressed in this Order.
I. Plaintiff's Motion to Supplement Evidense [sic], Doc. No. 43, and Defendants' Motion to Strike Plaintiff's "Motion to Supplement Evidense", Doc. No. 50
Plaintiff seeks to "supplement" evidence by asking this Court to consider four types of documents attached to his motion. See Motion to Supplement Evidense [sic], Doc. No. 43 (" Motion to Supplement"). Specifically, plaintiff attaches a form entitled "Suspect/Arrestee Supplement" dated July 2004. Motion to Supplement, p. 2. Plaintiff contends that this document charges him with murdering an individual named Heather A. Bonifant. Id. at 1. Plaintiff states, however, that he was never indicted for Ms. Bonifant's murder because she "was never assaulted" and is "alive and well." Id. Plaintiff argues that this document "demonstrate[s] that [defendant] Sgt. April D. Martin's demeanor and how she has been consistent with abusing her position as a police officer." Id. Plaintiff also attaches documents entitled "Ohio Uniform Incident Report" and "Narrative Supplement," both dated July 2004, and an excerpt from a deposition transcript, purportedly containing testimony of defendant Sergeant April Martin ("Defendant Martin"). Id. at 3-6.
In response, defendants first argue that the Motion to Supplement is improper under the Federal Rules of Civil Procedure and procedurally improper under the local rules of this Court because it was not filed in connection with a hearing or pending motion. Defendants' Motion to Strike Plaintiff's "Motion to Supplement Evidense", Doc. No. 50 (" Motion to Strike"), p. 2 (citing S.D. Ohio L.R. 5.4(a)). Defendants next contend that the proffered documents, which relate to an incident that allegedly occurred on July 23, 2004, are not relevant to the incident at issue in this case, which occurred on June 25, 2004. Id. Finally, defendants argue that the documents are unauthenticated. Id.
Defendants' arguments are well-taken. First, neither the Federal Rules of Civil Procedure nor the local rules of this Court permit parties to randomly file evidence. Although L.R. 5.4(a) permits parties to file "necessary" discovery documents "in connection with any proceeding or motion," that rule is inapplicable in this instance, where the documents do not relate to a proceeding or pending motion. Accordingly, plaintiff's request that the Court consider these documents is procedurally improper.
Second, it would be inappropriate for the Court to consider these documents because they are not authenticated or certified. See F.R. Evid. 901.
Finally, it is not clear to the Court how documents regarding a separate incident that apparently on another date have any relevance to the issues in this case.
The Court also observes that these documents contain several black marks that completely obliterate the selected text. These marks may have been intended to highlight, rather than to redact, the text. Regardless of the intent, the Court is unable to read several parts of these documents. However, in light of the discussion supra, the Court will not consider these documents.
Accordingly, plaintiff's Motion to Supplement is DENIED. In light of this denial, defendants' Motion to Strike is DENIED as moot.
II. Plaintiff's Motion Requesting Amendment to Statement of Claim, Doc. No. 49
A. Plaintiff's proposed amendment and defendants' opposition
Plaintiff seeks to amend ("supplement") the Complaint, Doc. No. 4, by adding a claim based on "[O.R.C. §] 2935.07, person arrested without warrant shall be informed of cause of arrest, to statement of claim." Motion Requesting Amendment to Statement of Claim ("Motion to Amend"), Doc. No. 49. Plaintiff contends that he did not know at the time that he was arrested, and that Defendants Sergeant April Martin and Officer Mark Emde did not advise him, of the charges against him; in fact, plaintiff asserts, he did not learn of the charge against him "until days later." Id.
This statute provides:
When an arrest is made without a warrant by an officer, he shall inform the person arrested of such officer's authority to make the arrest and the cause of the arrest.
When an arrest is made by a private person, he shall, before making the arrest, inform the person to be arrested of the intention to arrest him and the cause of the arrest.
When a person is engaged in the commission of a criminal offense, it is not necessary to inform him of the cause of his arrest.
O.R.C. § 2935.07.
In response, defendants argue that the Court should deny plaintiff's proposed amendment as futile. Defendants' Memorandum in Opposition to Plaintiff's "Motion Requesting Amendment to Statement of Claim", Doc. No. 52 ( "Memo. in Opp."), pp. 1-2. Defendants first contend that the statute is irrelevant because no notice of the charges is necessary "if the officers arrest an individual after encountering the individual in the commission of a criminal offense," which is what allegedly happened in this case. Id. at 2. Defendants next argue that Ohio law does not permit recovery of money damages for a claim based on an alleged violation of a criminal statute. Id.
In addition, defendants contend that plaintiff's Motion to Amend should be denied to the extent that it purports to allege an illegal seizure claim. Id. at 3. Defendants argue that Ohio law applies a two-year statute of limitations to claims under 42 U.S.C. § 1983. Id. Defendants contend that the Court should deny plaintiff's purported claim as untimely because it arises from an incident that occurred on June 25, 2004, and the Motion to Amend was not filed until October 25, 2006. Id. Finally, defendants contend that the Court should deny plaintiff's request to amend because plaintiff failed to submit a copy of the proposed amended complaint. Id.
B. Standard of Review
Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that "[t]he court should freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2) (2007). The grant or denial of a request to amend a complaint is left to the broad discretion of the trial court. Gen'l Elec. Co. v. Sargent Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). In exercising its discretion, the trial court may consider such factors as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of the amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). "A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss." Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citing Thiokol Corp. v. Department of Treasury, Revenue Div., 987 F.2d 376, 382-83 (6th Cir. 1993)). See also Hoover v. Langston Equipment Assoc., Inc., 958 F.2d 742, 745 (6th Cir. 1992) ("A court is within its discretion to refuse amendment and dismiss the complaint if it 'concludes that the pleading as amended could not withstand a motion to dismiss.'") (quoting Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986)).
C. Discussion
Plaintiff, citing to O.R.C. § 2935.07, seeks civil damages against defendants resulting from an alleged violation of an Ohio criminal statute. However, Ohio law does not permit a plaintiff to base a civil claim upon an alleged violation of a criminal statute. See, e.g., Biomedical Innovations, Inc. v. McLaughlin, 103 Ohio App.3d 122, 126 (10th Dist.Ct.App. 1995) ("Criminal violations are brought not in the name of the individual party but rather by, and on behalf of, the state of Ohio or its subdivisions."). See also Brunson v. City of Dayton, 163 F. Supp.2d 919, 928 (S.D. Ohio 2001) (quoting McLaughlin, 103 Ohio App.3d at 126)); Jones v. Graley, No. 2:05-cv-773, 2008 U.S. Dist. LEXIS 12313, at *22 (S.D. Ohio Feb. 6, 2008) (citing McLaughlin, 103 Ohio App.3d at 126; Brunson, 163 F. Supp.2d at 928). Therefore, plaintiff's proposed amendment, predicated on O.R.C. § 2935.07, is futile because it would not withstand a motion to dismiss. See Rose, 203 F.3d at 420. Accordingly, plaintiff's Motion to Amend is DENIED.
III. Plaintiff's Motion Requesting Court to Bar Deposition from Trial, Doc. No. 60
Plaintiff requests that this Court "bar the November 21, 2006 deposition [of plaintiff] from trial and/or any other proceedings." Motion Requesting Court to Bar Deposition from Trial ("Motion to Bar Deposition"), Doc. No. 60. Plaintiff argues that the deposition may not be used against him because he exercised diligence in attempting to obtain counsel in this case. Id. (citing Ohio R. Civ. P. 30(2) [sic]). Plaintiff further contends that defense counsel asked irrelevant questions and insisted that plaintiff be handcuffed during the deposition. Id.
Plaintiff apparently relies on the following rule, which is attached to the Motion to Bar Deposition:
If any party shows that when the party was served with notice the party was unable, through the exercise of diligence, to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party.
Ohio R. Civ. P. 30(B)(2).
In response, defendants argue that the Motion to Bar Deposition should be denied because plaintiff relies upon an Ohio rule rather than upon the Federal Rules of Civil Procedure, which contain no analogous provision. Defendants' Memorandum Contra to Plaintiff's Motion Requesting Court to Bar Deposition from Trial, p. 1. Defendants also contend that they provided adequate notice of the deposition and that the Court has twice denied plaintiff's requests to appoint counsel. Id. at 2. Defendants further argue that no Ohio court has applied Ohio R. Civ. P. 30(B)(2) in the manner plaintiff requests, i.e., permitting a pro se plaintiff to pursue an action and yet prohibiting a defendant from taking that plaintiff's deposition. Id.
Defendants' arguments are well-taken. The Federal Rules of Civil Procedure, which govern these proceedings, do not prohibit the use of a pro se plaintiff's deposition testimony at trial. See F.R. Civ. P. 32. Accordingly, plaintiff's Motion to Bar Deposition is DENIED. IV. Plaintiff's Motion to Compel, Doc. No. 62
Plaintiff contends that defendants have failed to respond to his interrogatories. Motion to Compel, Doc. No. 62. He also complains that he has not yet received a copy of his medical records, deposition transcript or responses to his "Request for Discovery," which is attached to the Motion to Compel. Id. Plaintiff asks this Court for an order compelling defendants to answer the interrogatories and to produce the requested documents. Id.
Plaintiff served the interrogatories in October 2006 and filed his motion on December 13, 2006.
Plaintiff provided defendants with an executed release for his medical records. Id.
In response, defendants represent that they mailed the answers to plaintiff's interrogatories on the same day that they received the Motion to Compel. Defendants' Memorandum Contra to Plaintiff's Motion Requesting Court to Bar Deposition from Trial ("Memo. Contra."), Doc. No. 63, p. 1. Defendants argue that the Motion to Compel should also be denied because plaintiff did not attempt to resolve this discovery dispute extrajudicially, in violation of S.D. Ohio L.R. 37.2. Id. Defendants contend that they have not provided the medical records because defendants have not yet received them. Id. Defendants further argue that they have no responsibility to provide plaintiff with the deposition transcript and note that it appears that the court reporter may have provided plaintiff a transcript on December 6, 2006. Id. (citing Exhibit A, attached thereto). Finally, defendants contend that they first received plaintiff's "Request for Discovery" on December 6, 2006 and that no response was due at the time the Motion to Compel was filed. Id. at 2.
Defendants' arguments are well-taken. Defendants represent to the Court that, at the time the Motion to Compel was filed: (1) they had served responses to plaintiff's interrogatories, and (2) they had not yet received plaintiff's medical records and therefore could not produce them to plaintiff. Further, the Motion to Compel was premature as to the "Request for Discovery" because defendants' response was not yet due. Under these circumstances, the Court can compel nothing more.
In addition, defendants have no obligation to provide plaintiff with the deposition transcript and, regardless, it appears that the court reporter previously sent a copy of the transcript to plaintiff. Exhibit A, attached to Memo. Contra. Accordingly, plaintiff's Motion to Compel is DENIED.
V. Plaintiff's Motion to Supplement Evidence, Doc. No. 79, and Defendants' Motion to Strike Plaintiff's "Motion to Supplement Evidence", Doc. No. 82
Plaintiff asks this Court to "allow into evidence" Griffin v. City of Heath, No. 2:04-cv-119 ("Griffin"), a lawsuit filed in this Court involving two of the defendants named in this action, i.e., Officers Mark Emde and William Tittle ("defendant officers"). Motion to Supplement Evidence ("Motion to Supplement"), Doc. No. 79, p. 1. Plaintiff argues that the Court should consider this separate litigation for the following reasons: (1) Griffin reveals that these defendants "have used excessive force on private citizens in the past and have violated the civil rights of private citizens"; (2) Griffin shares with the instant case "the patterns of this Department and their gung-ho/cowboy attitudes"; (3) Griffin "is a reminder that these officers have a pattern"; and (4) in Griffin, the officers used the plaintiff's size to justify their actions; and in this case, plaintiff was much smaller in stature than the defendant officers. Id.
The last page of the Motion to Supplement is a letter to the undersigned, appearing to be a motion to compel. Id. at 3. Plaintiff complains that defendants have not answered plaintiff's second set of interrogatories and asks this Court to compel responses from defendants. Id.
In response, defendants argue that the Court should strike plaintiff's Motion to Supplement because it seeks to admit improper character evidence. Defendants' Motion to Strike Plaintiff's "Motion to Supplement Evidence" ( "Motion to Strike"), Doc. No. 82, p. 2 (citing Fed.R.Civ.P. 404(b)). Defendants contend that consideration of Griffin is also improper because there was no finding in that case that the defendant officers violated the plaintiff's civil rights. Id. Finally, defendants also move to strike the last page of the Motion to Supplement because plaintiff did not serve this purported motion to compel on defendants. Id. at 3. Defendants further contend that by the time they had notice of the Motion to Supplement through the Court's electronic filing system, they had already mailed the discovery materials to plaintiff. Id. at 3 (citing Exhibit B).
As discussed supra, neither the Federal Rules of Civil Procedure nor the local rules of this Court permit parties to randomly file evidence. Although S.D. Ohio L.R. 5.4(a) permits parties to file "necessary" discovery documents "in connection with any proceeding or motion," that rule is inapplicable in this case where there is no proceeding or related pending motion. Accordingly, plaintiff's request that the Court consider Griffin is procedurally improper.
In addition, on March 21, 2006, this Court granted in part and denied in part defendants' motion for summary judgment in Griffin. Griffin, Opinion and Order, Doc. No. 25. The Court granted summary judgment on all claims except on plaintiff's claims that defendants used excessive force after plaintiff was on the ground and that such force constituted assault and battery; as to those claims, this Court concluded that there existed genuine issues of material fact. Id. Subsequently, the parties to Griffin settled the case and submitted a stipulation of dismissal. Griffin, Doc. Nos. 30 and 31. Therefore, there was no determination by either this Court or a jury that the defendant officers actually used excessive force against the plaintiff in Griffin. Accordingly, to the extent that plaintiff asks this Court to consider Griffin, his Motion to Supplement is DENIED.
The Court now turns to the second portion of plaintiff's Motion to Supplement, which appears to be a motion to compel answers to plaintiff's second set of interrogatories. Defendants have represented to the Court that, by the time they had received the Motion to Supplement, they had already mailed the answers to those interrogatories to plaintiff. Motion to Strike, p. 3. See also Exhibit B attached thereto. Therefore, defendants have already provided what plaintiff has requested. The Court can compel nothing more. Accordingly, to the extent that plaintiff asks this Court to compel defendants to respond to interrogatories, plaintiff's Motion to Supplement is DENIED. In addition, it appears that plaintiff failed to serve a copy of this motion on defense counsel. Plaintiff is DIRECTED to serve a copy of all future filings on defense counsel, as is required by Fed.R.Civ.P. 5. His failure to do so will result in an order striking plaintiff's filing.
In light of foregoing discussion, Defendants' Motion to Strike is DENIED as moot.
VI. Plaintiff's Motion Requesting Removal of Defendant (Anthony W. Shepherd) to Amend to: McCoy v. City of Heath, Doc. No. 80
Plaintiff seeks to dismiss defendant Anthony W. Shepherd and to substitute the City of Heath as a party defendant. Motion Requesting Removal of Defendant (Anthony W. Shepherd) to Amend to: McCoy v. City of Heath ("Plaintiff's Motion"), Doc. No. 80. Plaintiff also seeks to amend the case caption to reflect these changes.
Defendants do not oppose Plaintiff's Motion. Defendants' Response to Plaintiff's Motion Requesting Removal of Defendant and Motion to Compel, Doc. No. 83, p. 1. Specifically, defendants do not object to the dismissal of defendant Anthony W. Shepherd. Id. Defendants also do not object to the substitution of the City of Heath as a defendant if plaintiff is suing the remaining individual defendants, Sergeant April Martin, Officer Mark Emde and Officer William Title ("the individual defendants"), in their official capacities. Id. Defendants acknowledge that an action against the individual defendants in their official capacities is actually an action against the government entity that employs the defendants. Id. Here, defendants argue that "the course of proceedings" has shown that plaintiff's action is against the individual defendants in their official capacities and, accordingly, the City of Heath has effectively been a party since the beginning. Id
It is not immediately clear to the Court whether plaintiff has sued the individual defendants in their personal or official capacity, or in both capacities. However, for purposes of Plaintiff's Motion only, the Court will assume that plaintiff asserts claims against the individual defendants in their official capacities. Accordingly, Plaintiff's Motion is GRANTED to the extent that it seeks to add the City of Heath as a party defendant.
This assumption is without prejudice to plaintiff's future clarification that his claims are also intended to have been filed against the individual defendants in their personal capacities.
As noted, defendants do not oppose the dismissal of defendant Anthony W. Shepherd. However, the Court advises plaintiff that a case caption must remain the same during the entire pendency of the case in this Court and does not change with the dismissal of a party. Accordingly, Plaintiff's Motion is GRANTED as to the dismissal of defendant Anthony W. Shepherd, but DENIED to the extent that plaintiff seeks to change the case caption.
VII. Plaintiff's Motion to Compel, Doc. No. 81
Plaintiff asks this Court to order defendants to respond to a subpoena he served on them, which seeks the personnel files of defendants Sergeant April Martin, Officer Mark Emde and Officer William Tittle ("the individual defendants"). Plaintiff's Motion to Compel, Doc. No. 81. Plaintiff contends that defendants have refused to comply with the subpoena even though plaintiff has previously cooperated with defendants' discovery requests. Id.
In response, defendants argue that the personnel files are irrelevant to plaintiff's excessive force claim against the individual defendants, but concede that the files "may be relevant to claims of municipal liability against the City of Heath." Defendants' Response to Plaintiff's Motion Requesting Removal of Defendant and Motion to Compel ("Defendants' Response"), Doc. No. 83, p. 2. Defendants further acknowledge that the personnel files are a proper subject of discovery and represent that they are reviewing the "voluminous files" for redaction of confidential personal information. Id. Defendants represent that they intend to provide the documents to plaintiff within 30 days from the date of Defendants' Response. Id. Defendants argue that the Motion to Compel also should be denied because it was not immediately clear to defendants that the personnel files were relevant to plaintiff's claims. Id. at 2-3. Instead, defendants promised plaintiff that they would revisit the matter if plaintiff would explain how the files were relevant. Id. Defendants contend that the Motion to Compel should therefore be denied because defendants attempted to resolve the matter informally. Id.
Defendants represent to the Court that they planned to produce the personnel files within 30 days from November 26, 2007, the date Defendants' Response was filed. It therefore appears that defendants have complied with plaintiff's request. Under these circumstances, the Court can compel nothing more. Accordingly, plaintiff's Motion to Compel is DENIED as moot.
WHEREUPON, in light of the foregoing,
1. Plaintiff's Motion to Supplement Evidense [sic], Doc. No. 43, is DENIED and Defendants' Motion to Strike Plaintiff's "Motion to Supplement Evidense", Doc. No. 50, is DENIED as moot.
2. Plaintiff's Motion Requesting Amendment to Statement of Claim, Doc. No. 49, is DENIED.
3. Plaintiff's Motion Requesting Court to Bar Deposition from Trial, Doc. No. 60, is DENIED.
4. Plaintiff's Motion to Compel, Doc. No. 62, is DENIED.
5. Plaintiff's Motion to Supplement Evidence, Doc. No. 79, is DENIED and Defendants' Motion to Strike Plaintiff's "Motion to Supplement Evidence," Doc. No. 82, is DENIED as moot. Plaintiff is DIRECTED to serve a copy of all future filings on defense counsel.
6. Plaintiff's Motion Requesting Removal of Defendant (Anthony W. Shepherd) to Amend to: McCoy v. City of Heath, Doc. No. 80, is GRANTED to the extent that it seeks to add the City of Heath as a party defendant; GRANTED to the extent that it seeks the dismissal of defendant Anthony W. Shepherd; and DENIED to the extent that plaintiff seeks to change the case caption.
7. Plaintiff's Motion to Compel, Doc. No. 81, is DENIED as moot.