Filer v. Polston

886 F.Supp.2d 790

Myrna J. FILER, Plaintiff,

v.Detective Craig POLSTON, et al., Defendants.

Case No. 3:11–cv–170.

United States District Court,

S.D. Ohio,

Western Division at Dayton.

July 3, 2012.

Order Overruling Reconsideration Aug. 28, 2012.

Myrna J. Filer, Xenia, OH, pro se.

Jeffrey Charles Turner, Christopher Todd Herman, Surdk Dowd & Turner CO LPA, Miamisburg, OH, for Defendants.

ENTRY AND ORDER OVERRULING FILER'S OBJECTIONS (Doc. # 31) TO THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS; ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (Doc. # 27) IN ITS ENTIRETY; DISMISSING FILER'S COMPLAINT WITH PREJUDICE AND TERMINATING THIS CASE

THOMAS M. ROSE, District Judge.

This matter comes before the Court pursuant to pro se Plaintiff Myrna J. Filer's (“Filer's”) Objections (doc. # 31) to Magistrate Judge Michael J. Newman's Report and Recommendations (doc. # 27) regarding Filer's Complaint. The Defendants have responded to Filer's Objections. Thus, Filer's Objections are ripe for decision.

As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the District Judge has made a de novo review of the record in this case. Upon said review, the Court finds that Filer's Objections to the Magistrate Judge's Report and Recommendations are not well-taken, and they are hereby OVERRULED. The Magistrate Judge's Report and Recommendations is adopted in its entirety.

Filer's § 1983 claims are barred by the two-year statute of limitations and thus are dismissed with prejudice. Finally, the captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.

ENTRY AND ORDER OVERRULING FILER'S MOTION FOR RECONSIDERATION (Doc. # 36)

This matter is now before the Court pursuant to pro se Plaintiff Myrna J. Filer's (“Filer's”) Motion for Reconsideration (Doc. # 36.) Filer wants the Court to reconsider its Entry and Order of July 3, 2012, wherein Magistrate Judge Michael J. Newman's Report and Recommendations was adopted in its entirety and Filer's Complaint was dismissed with prejudice. (Doc. # 34.) The Defendants have responded to Filer's Motion for Reconsideration and the time has run and Filer has not replied. Therefore, Filer's Motion for Reconsideration is ripe for decision.

A motion to alter or amend a judgment may be granted if there was (1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice. Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir.2005). A motion to alter or amend cannot be used to re-argue a case or to present new arguments that could have been raised prior to judgment. Howard v. United States, 533 F.3d 472, 475 (6th Cir.2008).

Filer's only argument in her Motion for Reconsideration is that this Court should rely on the Sixth Circuit's decision in Potts v. Hill, 17 Fed.Appx. 302 (6th Cir.2001). This same argument was made by Filer in her Objections to Judge Newman's Report and Recommendations and considered by the Court in reaching its decision to adopt the Report and Recommendations in its entirety.

Thus, Filer has not identified a clear error of law, has not identified newly discovered evidence, has not identified an intervening change in controlling law and has not identified a manifest injustice. Therefore, Filer's Motion for Reconsideration (doc. # 36) is OVERRULED.

DONE and ORDERED in Dayton, Ohio, this Twenty-Eighth Day of August, 2012.

REPORT AND RECOMMENDATION¹

MICHAEL J. NEWMAN, United States Magistrate Judge.

This case is before the Court on Defendants' Motion for Judgment on the Pleadings. Doc. 22. In their Motion, Defendants maintain that pro se Plaintiff Myrna Filer's claims, brought pursuant to 42 U.S.C. § 1983, are barred by the two-year statute of limitations which governs § 1983 claims. Id., doc. 26. In response, Plaintiff argues that the “discovery rule” tolled the statute of limitations, and that her claims are therefore timely and properly before this Court. See doc. 25. This matter is now ripe for Report and Recommendation.

I. FACTS

Plaintiff brought this § 1983 action based upon alleged violations of her constitutional rights related to Defendants' searches of her home and business, both of which occurred on May 27, 2008. See doc. 1–1.

The searches of Plaintiff's home, located at 1194 New Mexico Drive, Xenia, Ohio, and her business, the L.A. Sports Bar and Grill, located at 44 Xenia Town Square, Xenia, Ohio, were conducted pursuant to two warrants issued by the Xenia Municipal Court in Greene County, Ohio. See docs. 22–1, 22–2. The warrants, attached to Defendants' Motion as Exhibits A and B, identify purportedly criminal activities of Plaintiff's son, Sheldon Smith (hereinafter “Smith”). Id. The affidavit, attached to each of the search warrants, states: “Sheldon Smith utilizes a business he manages[, the] L.A. [Sports Bar and Grill located at] 44 Xenia Town Square, Xenia, Ohio, his residence at 2396 Louisiana Drive, Xenia, Ohio, and his mother's address of 1194 New Mexico Drive, Xenia, Ohio to conduct his drug enterprise.” Id. at PageID 125, 137.

The returns of each of the warrants, also attached to Defendants' Motion, show that: (1) Plaintiff was served with both warrants on May 27, 2008; (2) property was seized from both her home and place of business, and (3) a receipt of inventory taken from Plaintiff's house was given directly to her, and a receipt for inventory taken from the business was left on the business' premises. Id. at PageID 117, 129.

Plaintiff was not prosecuted. In the criminal action involving the State of Ohio's prosecution of her son, Smith, the Greene County Court of Common Pleas granted Smith's motion to suppress the evidence recovered during the execution of both warrants at a motion to suppress hearing held on May 27, 2009. See State of Ohio v. Smith, Greene Co. C.P. Case No. 2008CR926 (May 27, 2009) (docket sheet). While the Common Pleas Court held that there was probable cause to search the residence located at 2396 Louisiana Drive, Xenia, Ohio, it found that there was not probable cause to search Plaintiff's house and business. Id. Specifically, the Common Pleas Court held: “[a]s to the search warrants for 1194 New Mexico Drive, Xenia, OH and 44 Xenia Town Square, Xenia, OH, the Court finds that the affidavits filed herein are inadequate and finds that there is insufficient probable cause to sustain the searches for these locations and any evidence obtained from either of those searches will not be used in this case.” Id.

Plaintiff filed her Complaint with this Court on May 19, 2011, alleging that her constitutional rights were violated under § 1983 when Defendants, acting under color of state law, utilized a false affidavit to establish probable cause in order to search her residence and business on May 27, 2008. See doc 1–1. Plaintiff further alleges that her business, the L.A. Sports Bar and Grill, sustained $10,000,000 in damages “as a direct result of the negative publicity associated with the L.A. Sports Bar and Grill, which forced the Plaintiff to have to close down the business.” Id. at PageID 21. Additionally, Plaintiff “requests that the culpability regarding the sum [of] damages of $10,000,000 be structured so that each named defendant is responsible for $2,000,000.” Id.

Defendants' Motion seeks judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), based upon their contentions that: (1) Plaintiff's claims are barred by Ohio's two-year statute of limitations for actions brought under 42 U.S.C. § 1983; and (2) “Plaintiff has not alleged the existence of an official governmental custom, policy, or practice that violated her constitutional rights.” Doc. 22, PageID 107.

II. APPLICABLE LAW

A. Standard of Review

The standard for reviewing a Rule 12(c) motion is the same standard employed for reviewing a Rule 12(b)(6) motion to dismiss. Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir.2008). In general, a court may not consider any facts outside the complaint and any attached exhibits on a motion to dismiss for failure to state a claim. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.2001). When matters outside the pleadings are presented to and considered by the court in a Rule 12(b)(6) motion, the motion is treated as one for summary judgment. See Friedman v. United States., 927 F.2d 259, 261 (6th Cir.1991). However, a court may consider public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies. See Amini, 259 F.3d at 502. The Court may also consider in its Rule 12(c) analysis, as is the case here, documents which are referenced by Plaintiff in her pro se Complaint. See Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir.1999).

In determining “a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.” Streater v. Cox, 336 Fed.Appx. 470, 474 (6th Cir.2009) (citing Tucker v. Middleburg–Legacy Place, 539 F.3d 545, 549 (6th Cir.2008)). While Fed.R.Civ.P. 8 “does not require ‘detailed factual allegations,’... it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Pleadings offering mere “ ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action’ will not do.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). In fact, in determining a motion to dismiss, courts “are not bound to accept as true a legal conclusion couched as a factual allegation[.]” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Furt...