JONATHAN D. GREENBERG, District Judge.
This case is before the Court upon consent of the parties, entered June 30, 2017. (Doc. No. 12.) Currently pending is Plaintiff Walter Derrico's Motion to Lift Stay. (Doc. No. 29.) Defendant City of East Cleveland opposed the Motion. (Doc. No. 30.) For the following reasons, Plaintiff's Motion to Lift Stay (Doc. No. 29) is GRANTED.
On April 22, 2017, Plaintiff Walter Derrico ("Plaintiff" or "Derrico") filed a Complaint against Defendants City of East Cleveland and City of East Cleveland Police Department (hereinafter the "City of East Cleveland Defendants"); former East Cleveland police officers Torris Moore, Eric Jones, and Antonio Malone; the State of Ohio; "Public Official Does Nos. 1-3;" and "ABC & XYZ Insurance Carriers Providing Occurrence Coverage for Police Activities such as Identified & Verified herein." (Doc. No. 1.) Plaintiff alleged numerous state and federal claims arising from his arrest, prosecution, and imprisonment for various drug charges. (Doc. No. 1.) The City of East Cleveland Defendants filed an Answer on June 2, 2017, along with Cross claims against Defendants Jones, Moore, and Malone.
Meanwhile, on June 5, 2017, Defendant State of Ohio filed a Motion to Dismiss Pursuant to Fed. R. Civ. Pr. 12(b)(1) and 12(b)(6). (Doc. No. 7.) Plaintiff did not file a response. On September 9, 2017, this Court issued a Memorandum Opinion & Order granting the State of Ohio's Motion and dismissing it from the case. (Doc. No. 14.)
The City of East Cleveland Defendants thereafter filed Motions for Summary Judgment and to Dismiss. (Doc. Nos. 16, 17.) Plaintiff moved to strike both motions. (Doc. Nos. 19, 20.) Defendants opposed the Motion to Strike and, in the alternative, moved for leave to file a Motion to Dismiss. (Doc. No. 22.)
On November 3, 2017, Plaintiff and the City of East Cleveland Defendants filed a Joint Motion to Stay. (Doc. No. 21.) The motion explained as follows:
(Id.)
On December 7, 2017, the Court issued an Order granting a stay to allow Plaintiff to pursue relief before the Ohio Court of Claims. (Doc. No. 23.) The stay was granted on the condition, however, that Plaintiff (1) initiate proceedings in state court within thirty (30) days of this Order; and (2) file monthly status reports in this Court regarding the progress of his state court proceedings. (Id.) Defendants' Motions for Summary Judgment and to Dismiss, and Plaintiff's Motions to Strike, were denied without prejudice subject to refiling once the stay is lifted. (Id.)
Plaintiff filed Monthly Status Reports on January 12, February 12, March 30, and May 2, 2018. (Doc. Nos. 24, 25, 26, and 28.) In the last of these Status Reports, Plaintiff stated as follows:
(Doc. No. 28.) Plaintiff maintains "given the progress of the state action to date, Mr. Derrico believes it would be necessary and prudent to reactivate his federal lawsuit." (Id.) He indicated an intent to file motions to lift the stay, amend his federal Complaint, and establish a discovery schedule. (Id.)
On May 15, 2018, Plaintiff filed a "Motion to Lift Stay of Proceedings." (Doc. No. 29.) Therein, he asserts, summarily,
Defendant City of East Cleveland filed a Brief in Opposition on May 30, 2018. (Doc. No. 30.) Defendant maintains that, under the Pullman Abstention Doctrine, this matter should remained stayed until Derrico's state appeal has been decided. Defendant asserts that "should the Eighth District Appellate Court determine that Mr. Derrico is qualified to pursue his claims, the Ohio Court of Claims would possess exclusive, original jurisdiction over such claims, and this Court would therefore lack subject matter jurisdiction." (Id.) Lastly, Defendant argues that, as Plaintiff has requested the state appellate court resolve the constitutional question at issue, this Court would be precluded from further addressing the issue under principles of res judicata. (Id.)
Derrico failed to file a response.
The Complaint contains the following factual allegations. On October 2, 2012, Plaintiff was talking with friends outside 428 Arbor Street in Cleveland, Ohio. (Doc. No. 1 at ¶ 12.) An unmarked car came down the street and stopped at that address. (Id. at ¶ 13.) Defendants Moore, Malone and Jones (who were City of East Cleveland police officers at the time) exited the unmarked car and approached Plaintiff. (Id. at ¶ 14.) One of these Defendants "slammed [Plaintiff] to the ground" and asked him, "Where is the dope? We heard you got some dope?" (Id. at ¶ 15.) Defendants Moore, Malone, and Jones kept Plaintiff on the ground for approximately 40 minutes, "handcuffed with his face down on the ground." (Id. at ¶ 16.)
Plaintiff alleges Defendants Moore, Malone and Jones then entered 428 Arbor Street without a warrant, "tore the house apart," and "completely destroyed much of what was in the house." (Id. at ¶ 17.) According to Plaintiff, these Defendants took $850 in cash from Plaintiff "but only turned in $340 of that amount." (Id. at ¶ 18.) An unidentified officer arrived at the scene and " when he saw what was going to [sic] he got back in his police car, and said: `I am not doing this.'" (Id. at ¶ 19.)
Plaintiff claims that, although he did not have any drugs on him at the time, he was taken to jail and booked on drug charges on October 2, 2012. (Id. at ¶ 20-21.) He asserts he was not able to make bond and get out of jail until December 7, 2012. (Id. at ¶ 22.) Plaintiff claims that, upon advice of appointed counsel, he "pleaded guilty on January 2013 to avoid further charges being fraudulently added and/or the possibility of maximum sentencing." (Id. at ¶ 23.) He was sentenced to a four year term of incarceration and "was in the prison facilities at Lorain, Richland, and Trumbull for over three years." (Id. at ¶ 24-25.) After serving his sentence, Plaintiff was transferred to a halfway house, where he stayed until August 12, 2016. (Id. at ¶ 26-27.) He was "also required to meet his Probation Officers every night for three years at the State Building in Cleveland, Ohio." (Id. at ¶ 28.) Plaintiff claims his conviction and sentence was subsequently vacated.
The Complaint then sets forth "verbatim citations" to what appears to be portions of (1) an unidentified newspaper article regarding Defendants Moore, Malone, and James; and (2) a federal indictment against some of these Defendants in United District Court for the Northern District of Ohio. Taken together, these "citations" appear to allege that Defendants Moore, Malone and Jones were charged in federal court on conspiracy and other charges relating to illegal actions taken while these Defendants were employed as City of East Cleveland police officers, including the falsification of police reports and making false statements in search warrant affidavits.
The Complaint asserts numerous violations of Plaintiff's civil rights pursuant to 42 U.S.C. § 1983 based on the Fourth, Fifth, Eighth, and Fourteenth Amendments, including (1) malicious prosecution; (2) "concerted unlawful and malicious subsequent arrests and charges;" (3) "concerted unlawful and malicious sequential fabrication, destruction of evidence, and alteration of evidence;" (4) "neglecting to prevent defendant officers under this control" from violating Plaintiff's due process and equal protection rights; and (5) conspiracy. (Id. at pp. 25-34.) Plaintiff also alleges (1) failure to properly hire, train, discipline and/or supervise; (2) failure to adopt and enforce reasonably appropriate policies, practices, and procedures for the operation and administration of the internal affairs of the East Cleveland Police Department; and (3) "condoning a pattern, practice and/or custom of police officer intimidation and abuse." (Id. at pp. 31-32.) In addition, the Complaint asserts various state law claims, including terrorism, treason, and violations of the Ohio Constitution.
As noted above, Defendant City of East Cleveland argues Plaintiff's Motion to Lift Stay should be denied on the basis of the Pullman Abstention Doctrine. (Doc. No. 30 at 3.) Plaintiff failed to acknowledge or address this argument.
As the Sixth Circuit recently explained, "`[t]he doctrine of abstention, under which a district court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it.'" Jones v. Coleman, 848 F.3d 744, 749 (6th Cir. 2017) (quoting Cty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959)). See also Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (describing the "virtually unflagging obligation of the federal courts to exercise the jurisdiction given them"). One exception to this general rule is based on the avoidance of "needless friction with state policies," and "a premature constitutional adjudication." Jones, 848 F.3d at 749 (citing R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 500, 61 S.Ct. 643, 85 S.Ct. 971 (1941)). This exception, commonly referred to as Pullman abstention, "does not `involve the abdication of federal jurisdiction, but only the postponement of its exercise,' Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959), which differentiates it from other forms of federal judicial abstention. E.g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)." Jones, 848 F.3d at 749.
In Pullman, the Supreme Court "held that federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided." Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984). "Thus the primary scenario for a district court's application of Pullman abstention is one in which the state-law question is an unsettled issue best decided by state courts." Jones, 848 F.3d at 749. See also Harris Cty. Comm'rs Court v. Moore, 420 U.S. 77, 83-84, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975). In Moore, the Supreme Court illustrated some considerations for determining when a district court should abstain under Pullman:
Id. (internal citations omitted). See also Jones, 848 F.3d at 749.
Interpreting the above, the Sixth Circuit has explained that "Pullman abstention is warranted only when a state law is challenged and resolution by the state of certain questions of state law may obviate the federal claims, or when the challenged law is susceptible of a construction by state courts that would eliminate the need to reach the federal question." GTE North, Inc. v. Strand, 209 F.3d 909, 921 (6th Cir. 2000) (citing Babbitt v. United Farm Workers National Union, 442 U.S. 289, 306, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)). See also Hunter v. Hamilton County Bd. Of Elections, 635 F.3d 219, 233 (6th Cir. 2011) (Pullman abstention "is appropriate only where state law is unclear and a clarification of that law would preclude the need to adjudicate the federal question.")(emphasis in original).
Thus, federal courts within this Circuit have articulated two requirements for Pullman abstention: 1) an unclear state law, and 2) the likelihood that a clarification of the state law would obviate the necessity of deciding the federal claim question. See Tyler v. Collins, 709 F.2d 1106, 1108 (6th Cir. 1983); Detroit Memorial Park Ass'n, Inc. v. City of Detroit Bd. of Zoning Appeals, 105 F.Supp.3d 769, 777 (E.D. Mich. May 14, 2015); American Broadcasting Co., Inc. v. Blackwell, 479 F.Supp.2d 719, 732 (S.D. Ohio 2006); Summit County Crisis Pregnancy Center, Inc. v. Fisher, 830 F.Supp. 1029, 1032 (N.D. Ohio 1993). See also Slyman v. City of Willoughby, Ohio, 1998 WL 24990 at * 2 (6th Cir. Jan. 16, 1998); Smith v. Husted, 2016 WL 10321579 at * 5 (S.D. Ohio March 11, 2016).
Here, Defendant argues Pullman abstention is appropriate because "abstention will allow the state courts to decide as to whether Mr. Derrico has protectable rights under Ohio Rev. Code 2743.48 — the state remedy for wrongful imprisonment." (Doc. No. 30 at 5.) Defendant asserts, summarily, that Ohio Rev. Code 2743.48 is "unclear" and further that, "an interpretation . . . finding that through operation of Crim. R. 48 that [Plaintiff's] guilty plea never occurred would result in avoiding resolution under any federal constitutional question." (Id.) Lastly, Defendant argues "abstention would avoid unnecessary federal interference in state operations." (Id.)
In order to address Defendant's argument, a brief discussion of Plaintiff's state court civil action is necessary. As noted above, on January 10, 2018, Plaintiff filed a Complaint for Declaratory Relief in the Cuyahoga County Court of Common Pleas, seeking a declaration that he is a "wrongfully convicted individual and that by virtue of that status [he] is entitled to file an action against the State of Ohio in the Ohio Court of Claims to obtain compensation as provided in ORC §§ 2743.51 to 2743.72."
On February 27, 2018, the State of Ohio filed a Motion for Judgment on the Pleadings, arguing Plaintiff's action should be dismissed because "[u]nder the plain language of the wrongful imprisonment statute, a guilty plea is a complete bar to compensation under Ohio's statute." See Derrico v. State, Cuyahoga County Court of Common Pleas Case No. CV-18-891381 (Mtn. For Judgment on Pleadings). In this regard, the State noted that Ohio Rev. Code § 2743.48 provides as follows:
Ohio Rev. Code § 2743.48(A)(emphasis added). Because Derrico pled guilty in his underlying criminal case, the State argued he was not eligible for compensation under Ohio Rev. Code § 2743.49 as a matter of law.
Plaintiff opposed the motion, arguing Ohio Rev. Code §2743.48(A)(2) is unconstitutional because it makes an arbitrary distinction between classes of imprisoned persons; i.e., those who were convicted and those who pled guilty. Plaintiff also sought leave to amend his Complaint to assert this constitutional claim. The State of Ohio opposed the motion for leave to amend. See Derrico v. State, Cuyahoga County Court of Common Pleas Case No. CV-18-891381.
On April 5, 2018, the state trial court granted the State of Ohio's Motion for Judgment on the Pleadings, finding "Plaintiff's guilty plea renders him unable to qualify as a wrongfully imprisoned individual under the statute." See Derrico v. State, Cuyahoga County Court of Common Pleas Case No. CV-18-891381 (Journal Entry dated 4/5/18). The court also denied Plaintiff's Motion for Leave to Amend his Complaint to assert a claim that §2743.48 is unconstitutional. Id. ("This Court finds that Plaintiff failed to make a prima facie case showing support for his constitutional challenges and that the attempt to raise them post hoc was a direct response to Defendant's motion identifying a bar to Plaintiff's wrongful imprison[ment] claim.") Plaintiff filed a notice of appeal to the Eighth District Court of Appeals of Ohio ("state appellate court") on May 15, 2018. That appeal is still pending as of the date of this Opinion.
For the following reasons, the Court finds Defendant has not demonstrated Pullman abstention is necessary or appropriate under the circumstances presented. Plaintiff's state court appeal challenges the constitutionality of Ohio Rev. Code § 2743.48(A)(2) as applied to individuals (such as himself) who have pled guilty. In the instant case, however, Plaintiff does not raise any challenge to Ohio Rev. Code § 2743.48, constitutional or otherwise. Rather, Plaintiff's Complaint herein asserts numerous civil rights violations under 42 U.S.C. § 1983, including malicious prosecution, due process, equal protection, and conspiracy claims. The Complaint also states various state law claims for terrorism, treason, and violations of the Ohio Constitution. None of these claims, however, challenge the constitutionality of § 2743.48(A)(2).
Thus, this Court will not be called upon to address the constitutional challenge currently pending before the state appellate court. As noted above, "Pullman abstention is warranted only when a state law is challenged and resolution by the state of certain questions of state law may obviate the federal claims . . ." GTE North, Inc., 209 F.3d at 921. Here, Plaintiff has not challenged a state law (i.e. he has not challenged the constitutionality of § 2743.48(A)(2)) and it "seem[s] unlikely that resolution of the state law question would significantly affect the federal claim[s]." Moore, 420 U.S. at 83-84. See also Jones, 848 F.3d at 749.
Defendant argues, however, that "should the Eighth District Appellate Court determine that Mr. Derrico is qualified to pursue his claims, the Ohio Court of Claims would possess exclusive, original jurisdiction over such claims, and this Court would therefore lack subject matter jurisdiction." (Doc. No. 30 at 3.) This argument is without merit. Ohio Rev. Code § 2743.48(D) provides as follows:
provision in any of those sections, the provision in this section controls. Ohio Rev. Code § 2743.48(D)(emphasis added). By its very terms, the above statute applies only to civil actions filed by a wrongfully imprisoned individual against the State of Ohio. Here, the State of Ohio was dismissed from this action on September 7, 2017. (Doc. No. 14.) Defendant City of East Cleveland, a municipality, has not directed this Court's attention to any legal authority suggesting the above statute applies equally to civil actions filed against a municipality. Accordingly, the Court finds this argument to be without merit.
Finally, Defendant argues "in the event the state appellate court were to find that Mr. Derrrico's claim that the disqualification of those persons who have pled guilty, was constitutional and that he was therefore barred from seeking relief under R.C. 2743.48; under the doctrine of res judicata Mr. Derrico would be barred from seeking review of that decision before this Court as the proper recourse would require that he appeal such decision to the Ohio Supreme Court." (Doc. No. 30 at 6.) This argument is without merit. As discussed above, in the instant case, Plaintiff is not asking this Court to determine the constitutionality of Ohio Rev. Code § 2743.48(A)(2) as applied to individuals such as himself who have pled guilty. Thus, Defendant has failed to establish the issue of res judicata is implicated herein.
Accordingly, and for all the reasons set forth above, the Court finds abstention would not be appropriate under Pullman, supra and its progeny. Defendant's arguments to the contrary are without merit and rejected. The Court therefore grants Plaintiff's Motion to Lift Stay. (Doc. No. 29.) The Court will set a status conference with counsel via separate Order, at which time case management deadlines will be set.
For all of the foregoing reasons, Plaintiff's Motion to Lift Stay (Doc. No. 29) is GRANTED.
