Meyers v. Mitrovich

ROBERT MEYERS, Plaintiff, v. PAUL MITROVICH, et al., Defendants.

CASE NO. 1:14CV1604

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

January 30, 2015

PEARSON, J.

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND ORDER

Pending before the Court are Defendants' Motions to Dismiss (ECF Nos. 8, 9, 17, 18, and 19), Plaintiff's Motion for Preliminary Injunction (ECF No. 2), Plaintiff's Motion for Objection and/or Motion to Strike Defendant Paul Mitrovich's Motion to Dismiss (ECF No. 22), Plaintiff's Motion for Declaratory Judgment (ECF No. 23), Plaintiff's Motion for Demand for Default Judgment (ECF No. 25), Plaintiff's Objection to and/or Motion to Strike Defendant Mitrovich's Reply in Support of Motion to Dismiss (ECF No. 32), and Plaintiff's Objection and/or Motion to Strike Defendants' (Smith, Shannon, Szeman, and Byers) Motions to Dismiss and Opposition to Plaintiff's Motion for Preliminary Injunction (ECF No. 34). For the reasons that follow, the Court grants Defendants' Motions to Dismiss; denies all other pending Motions; and dismisses this action.

I. Background

At approximately 12:20 a.m. on January 20, 2013, Madison Village Police Officer Michael Smith ("Smith") observed a red pick-up truck with heavily-tinted windows and a burned out rear license plate light exiting the highway. See State v. Meyers, Nos. 2013-L-042, 2013-L-043, 2014WL 1348920 (Ohio App. 11 Dist. Mar. 31, 2014). Smith signaled for the vehicle to pull over to the curb to discuss these equipment violations with the driver. Id. Before exiting his patrol car, Smith entered the truck's license plate number in his mobile data terminal and discovered that the owner, Robert Meyers ("Meyers"), was licensed to carry a concealed firearm. Id.

Smith's patrol car was equipped with a dashboard camera which recorded the incident. Smith approached the driver's side of the truck, and Meyers rolled down his window. Id. Smith asked Meyers for his license and proof of insurance. While Meyers was retrieving his paperwork, Smith scanned the inside of the vehicle with a flashlight. Id. Meyers handed his driver's license to Smith; the officer examined the driver's license and inquired of Meyers where he was coming from and what he was doing that evening.

After this brief exchange, Meyers volunteered that he had a concealed carry permit. Id. Smith asked if he had his weapon with him in the car and Plaintiff responded that he did. Id. Smith testified at trial that at that point he observed a handgun on the vehicle floor near the gas pedal. Id. Smith then drew his service revolver and ordered Meyers not to reach for the weapon and to keep his hands on the steering wheel. Id. Meyers did not comply with that request and Officer Smith immediately ordered Meyers to get out of the vehicle. Id. Meyers alleges Smith threatened to "blow his head off." (ECF No. 1 at 4). Meyers claims that Smith then remembered that his actions were being recorded, calmly repeated his request for Meyers to exit his vehicle and holstered his gun. (ECF No. 1 at 4). When Meyers complied, Smith handcuffed Meyers and ordered him to stand against the side of the truck while they waited for back-up to arrive. Id. During this time, Smith questioned Meyers. Id.

Sergeant Matthew Byers arrived approximately five minutes later. Id. Meyers was placed in the back of Smith's patrol car. Id. While in the patrol car, Smith detected the odor of alcohol, which he had not previously detected due to the high winds outside. Id. Byers requested Meyers perform a field sobriety test, which Meyers refused. (ECF No. 1 at 4); Id. Smith took photographs of the inside of the truck; noting that the handgun's action was open with the slide locked back and that there was a fully-loaded magazine and a holster on the floor near the driver's seat. Id. A second loaded magazine was discovered in the glove compartment during the vehicle inventory search that followed Meyers's arrest. Id.

Smith and Byers both testified at trial that Meyers smelled of alcohol, had slurred speech, repeated questions many times, and had difficulty remembering or understanding the questions. Id. Meyers was informed that he was under arrest, Mirandized, and transported to the jail.

Meyers was charged in Painesville Municipal Court with using weapons while intoxicated and improperly handling firearms in a motor vehicle. Id. He was also cited for unlawful window tint and for not having any rear license plate illumination. Id. He pled not guilty to all charges. Id. Judge Michael A. Cicconetti presided over the case in the pre-trial stages; however, Visiting Judge Paul H. Mitrovich was appointed to preside over the trial. Madison Law Director Joseph Szeman was the prosecutor in the case. Meyers was convicted on all charges.

Meyers appealed his conviction to the Ohio Eleventh District Court of Appeals asserting five assignments of error. Id. The Court of Appeals affirmed his conviction on four assignments of error but found that the trial court instructed the jury on a prior version of Ohio Revised Code § 2923.16(C) pertaining to improperly handling firearms in a motor vehicle. Id. The Court of Appealsreversed his conviction on that charge alone, and remanded it to the trial court for a new trial. Id. His convictions for using weapons while intoxicated and his traffic citations for unlawful tint and improper rear license plate illumination were affirmed. Id. The State declined to retry Meyers on the charge of improperly handling a firearm in a motor vehicle. Id.

Meyers has now filed this civil rights action against Mitrovich, Szeman, Shannon, Smith, and Byers. He asserts seven causes of action, although several of them are repetitive. He claims Smith used excessive force against him during his arrest and Shannon is also liable to him for damages because she failed to properly train Smith or discipline him for his actions. He next contends his weapons were confiscated without due process. Third, he asserts claims for malicious prosecution against Szeman. Finally, he asserts claims for civil conspiracy under 42 U.S.C. §§ 1983, 1985, and 1986 against all of the Defendants claiming they conspired to: (1) cover up the use of excessive force during his arrest; (2) deprive him of his weapons without due process; (3) subject him to malicious prosecution; (4) deny him equal protection; and (5) prevent him from presenting evidence of the Defendants' criminal violations to a grand jury. He seeks monetary and injunctive relief.

Each of the Defendants filed a Motion to Dismiss under Federal Civil Procedure Rule 12(b). Byers filed a Motion to Dismiss under Rule 12(b)(6) (ECF No. 8) on August 13, 2014 stating Plaintiff did not allege any facts to suggest he personally engaged in any of the conduct described in the Complaint and did not include him in any of his legal causes of action. He contends Plaintiff therefore failed to state upon which relief could be granted against him.

Mitrovich filed a Motion to Dismiss under Rule 12(b)(1) and Rule 12(b)(6) (ECF No. 9) on August 13, 2014. He states that Meyers is challenging decisions he made in the course of Meyers'scriminal prosecution and the Court lacks subject matter jurisdiction to conduct appellate review of these decisions under the Rooker-Feldman Doctrine. He also claims he is entitled to absolute immunity for claims stemming from decisions he made on the bench.

Shannon, Smith, and Szeman obtained leave to file an Answer or Motion to Dismiss on or before September 12, 2014. They each filed a Motion to Dismiss pursuant to Rule 12(b)(6) on September 12, 2014. In their Motions (ECF Nos. 17, 18, and 19), they contend that the claims asserted against them in their official capacities are based on respondeat superior and should be dismissed. They also assert Meyers's conspiracy claims are devoid of factual allegations to support them. Szeman asserts he is entitled to absolute prosecutorial immunity (ECF No. 18) and Shannon asserts that claims against her in her individual capacity are also based on respondeat superior and should be dismissed. (ECF No. 19).

Meyers objects to Judge Mitrovich's claim of absolute judicial immunity. (ECF Nos. 22, 23, 32). He contends Judge Mitrovich lacked jurisdiction to preside over his criminal case because he was never issued a Certificate of Assignment by the Ohio Supreme Court. Judge Mitrovich responded to Meyers's assertion by providing a copy of the Certificate of Assignment, signed by the Chief Justice of the Ohio Supreme Court, appointing him to preside in the Painesville Municipal Court for the months of April 2013 through June 2013, and to conclude any proceedings in which he participated that were pending at the end of his appointment period. (ECF No. 26-1 at 1).

Meyers also filed a Motion for Default Judgment for Failure to Appear (ECF No. 25) on September 23, 2014. He claimed he served the Defendants on July 25, 2014. He indicated Szeman, Shannon and Smith failed to submit a responsive pleading within twenty-one days after service. Hedemands the Court Clerk enter default against these Defendants.

II. Motion for Default Judgment

Federal Civil Procedure Rule12(a)(1) provides that unless another time is specified by this Rule or by federal statute, the time for filing an Answer or responsive pleading is 21 days after service of the Summons and Complaint. Before serving an Answer, a party may file a Motion to Dismiss asserting any of the grounds listed in Rule 12. The filing of such a Motion alters the time period for filing an Answer, in the event that the Motion is denied. Fed.R.Civ.P. 12(a)(4).

The method of computing time is found in Federal Civil Procedure Rule 6(a). When calculating the 21 days to file an Answer or responsive pleading, the day of service is excluded. Fed.R.Civ.P. 6(a)(1)(A). Thereafter, every day, including Saturdays, Sundays and legal holidays are counted. Fed.R.Civ.P. 6(a)(1)(B). If the last day of the period falls on a Saturday, Sunday or...