The opinion of the court was delivered by: Magistrate Judge Timothy S. Black
MEMORANDUM OPINION AND ORDER
This is a civil rights action brought pursuant to 42 U.S.C. § 1983. The case is before the Court on defendants' motion for judgment on the pleadings (Doc. 8), defendants' motion for summary judgment (Doc. 10), and plaintiffs' second motion to remand (Doc. 14). Also pending is a motion by defendants for leave to supplement their motion for summary judgment with an expert opinion. (Doc. 25.) The parties have consented to final disposition by the magistrate judge pursuant to 28 U.S.C. § 636(c). (See Docs. 19, 23).
For the reasons that follow, the motion for judgment on the pleadings is GRANTED; the motion for summary judgment is GRANTED IN PART and DENIED IN PART; and the second motion for remand is DENIED. The motion for leave to supplement is also DENIED.
Plaintiffs LaDawnya K. Carpenter ("Carpenter"), Charles N. Combs ("Combs"), and Tyler Combs ("Tyler") (collectively "plaintiffs") are residents of the City of Franklin, Ohio. (Doc. 1, Att. 1 at p. 4, ¶ 6.) Tyler, a minor child, is Combs's son. (Id. at p. 4, ¶ 7.) Carpenter is Combs's sister. (Id. at p. 8, ¶ 34.)
Named defendants include the City of Franklin, Ohio, four members of the Franklin Police Department, Lt. Leslie W. Bowling, Sgt. Russell Whitman, Officer Diekman, and Officer Troy Wolf; and a Prosecutor for the City of Franklin, Steven Runge. (Id. at p. 4, ¶ 5.) Sarah Kirby ("Kirby"), who is Tyler's mother (and Combs's ex-girlfriend), was also named as a defendant in the original complaint. (See Doc. 8, Ex. A at p. 6, ¶ 2.)
In July 2002, Kirby had filed a civil action in the Warren County Court of Common Pleas against Combs for entry of a domestic violence protection order. (Id. at p. 6, ¶ 3.) As a result of a hearing held on July 8, 2002, which Combs and Kirby both attended, the state court entered an Order of Protection, which both Kirby and Combs signed, which provided, among other things, for the temporary custody of Tyler to be with Combs during the weekdays from Sunday at 6:00 p.m. to Friday at 6:00 p.m.; and the temporary custody of Tyler to be with Kirby on the weekends from Friday at 6:00 p.m. to Saturday at 6:00 p.m. (Doc. 8 at p. 4.) The domestic violence protective order entered by the state court also provided that "all exchanges to take place at Franklin Police department." (Id.)
On the evening of Friday, August 16, 2002, after Combs had failed to bring Tyler to the police station for the 6:00 p.m. transfer to Kirby, officers Wolf, Bowling, Whitman and Diekman appeared with Kirby at Combs's home. The officers allegedly entered the home without a search warrant or an arrest warrant in their possession and arrested Combs for violating the protective order and seized Tyler and transferred him into Kirby's physical custody. (Doc. 1, Att. 1 at p. 5, ¶ 10; Doc. 8, Ex. A at pp. 3-4, ¶ 4.)
Carpenter was present at Combs's home on August 16, 2002. (Doc. 1, Att. 1 at p. 8, ¶ 34.) Although Carpenter objected to the intended transfer of Tyler to Kirby, she was trying to dress him when one of the officers took Tyler from Carpenter, carried him outside, and delivered him to Kirby, who then left with the child. (Doc. 13, Ex. 6 at ¶ 8.)
Alas, Carpenter followed the officers outside, allegedly simply to remind Kirby to bring the child back the following Sunday. (See id. at ¶¶ 9-10.) Carpenter was then arrested for disorderly conduct. (Id. at ¶ 37.) According to plaintiffs, an officer then "manhandled" Carpenter by throwing her against a van, pulling her arms back, and pushing her into the van. (Doc. 1, Att. 1 at p. 8, ¶ 35.) The charge against Kirby for disorderly conduct was dismissed on January 17, 2003, on statutory, speedy trial grounds. (Id. at p. 9, ¶ 43.)
The criminal proceedings against Combs were terminated in his favor on January 28, 2003. (Doc. 8, ex. A at 4-5, ¶ 9; Doc. 10, Ex. D.)
Plaintiffs initiated this action on August 8, 2003, by filing a complaint in the Warren County Court of Common Pleas against the City of Franklin, Lt. Bowling, Sgt. Whitman, Officer Diekman, and Sarah Kirby. (See Doc. 8, Ex. A). An amended complaint was filed on December 15, 2003. (Id., Ex. B.)
On October 7, 2004, plaintiffs sought leave to file a second amended complaint withdrawing claims against Sarah Kirby and adding claims against two additional defendants, Officer Troy Wolf and Franklin City Prosecutor Steven Runge. (Id. at 27-30.) Leave to file the amended complaint was granted over defendants' objections on April 22, 2005. (See Doc. 1, Att. 1.)
On May 3, 2005, the state court judge, Hon. Neal B. Bronson, issued a decision granting in part and denying in part a motion for summary judgment by the City of Franklin, Lt. Bowling, Sgt. Whitman, and Officer Diekman. (Doc. 8, Ex. E.)
On May 11, 2005, Wolf filed a notice removing the state court action to federal court on the basis of federal question jurisdiction. (Doc. 1.) All of the other defendants consented to and joined in the removal. (See id; see also Doc. 16.)
Plaintiffs filed a motion to remand on the grounds that the removal was untimely and that the notice of removal was defective. (See Doc. 5.) On March 27, 2006, the motion to remand was denied by United States District Judge Michael H. Watson. (Doc. 16.)
On February 17, 2006, defendants filed a motion for judgment on the pleadings seeking to dismiss Officer Troy Wolf and Prosecutor Steven Runge. (Doc. 8.) The motion is unopposed. (See Doc. 14.)
On February 17, 2006, defendants separately filed a motion for summary judgment. (Doc. 10.) As grounds for their motion, defendants argue, inter alia, that plaintiffs have failed to establish any constitutional violations and that the individual police officers are entitled to qualified immunity. (See id.) Plaintiffs have filed a memorandum in opposition to the motion for summary judgment (Doc. 13), to which defendants have replied (Doc. 15). On October 19, 2006, defendants filed a motion to supplement their motion for summary judgment with an opinion letter from a law enforcement expert. (Doc. 25.)
On March 11, 2006, plaintiffs filed a second motion to remand this case to state court. (Doc. 14.) Plaintiffs state that, if the unopposed motion for judgment on the pleadings is granted, and Troy Wolf -- the defendant who initiated the removal from state court -- is dismissed, the Court's jurisdiction would terminate.
The second amended complaint includes eight counts alleging unlawful conduct by defendants.
In Count I, plaintiffs allege that the officers' entry into Combs's home without a warrant and his arrest without a warrant violated his rights under the Fourth and Fourteenth Amendments. (Doc. 1, Att. 1 at ¶¶ 8-10.) Plaintiffs further allege that the officers' failure to prevent the entry into the home constitutes a separate violation of Combs's rights. (Id. at ¶ 11.)
In Count II, plaintiffs allege that Tyler was seized by the officers without a warrant or other legal right in violation of his rights under the Fourth and Fourteenth Amendments. (Id. at ¶ 16.)
In Count III, plaintiffs allege that the arrest and seizure of Combs and the seizure of Tyler Combs violated their constitutional rights of familial association and privacy. (Id. at ¶ 19.)
In Count IV, plaintiffs allege that the City of Franklin failed to adequately train its police officers. (Id. at ¶ 20.)
In Count V, plaintiffs allege that the officers failed in their duty to investigate prior to the arrest of Combs and the seizure of Tyler. (Id. at ¶ 24.)
In Count VI, plaintiffs state that defendants Bowling and Whitman, a police lieutenant and sergeant, respectively, failed to properly supervise the other officers in violation of plaintiffs' constitutional rights. (Id. at ¶ 29.)
In Count VII, plaintiffs state that the city prosecutor, Runge, ratified the constitutional violations committed by the other officers. (Id. at ¶ 29 [sic].)
In Count VIII, plaintiffs allege that the officers lacked probable cause to arrest Carpenter and used excessive and unreasonable force in effecting her arrest. (Id. at ¶ 35.)
They further allege that she was maliciously prosecuted and denied her constitutionally protected right to a speedy trial. (Id. at ¶¶ 37, 43.)
Finally, plaintiffs allege that the defendant officers deprived Carpenter of her right of freedom from illegal confinement and imprisonment; her right of freedom from physical abuse, coercion, and intimidation; and her right of timely and effective assistance and medical aid, in violation of her rights under the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution; 42 U.S.C. §§ 1983 and 1985; and 18 U.S.C. § 245. (Id. at ¶¶ 50-51.)
Plaintiffs seek injunctive and monetary relief, including compensatory damages of $2,500,00.00 and punitive damages of $4,000,000.00. (See id. at pp. 11-12.)
II. PLAINTIFFS' SECOND MOTION TO REMAND
Because plaintiff's second motion to remand (Doc. 14) raises a threshold issue concerning the Court's subject matter jurisdiction, the Court shall dispose of that motion first. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587-88 (1999); see also Midwest Motor Supply Co., Inc. v. Addis, No. 2:05CV0733, 2006 WL 181990, at *1 (S.D. Ohio Jan. 23, 2006). For the reasons that follow, the motion is DENIED.
As grounds for their second motion to remand, plaintiffs argue that if the removing defendant, Troy Wolf, is dismissed as a defendant, the Court's jurisdiction would terminate. Their argument lacks merit.
It is well established that whether removal was proper is determined as of the time of the removal. See Ahearn v. Charter Twp. of Bloomfield, 100 F.3d 451, 453 (6th Cir. 1996); Boyd v. Diebold, Inc., 97 F.R.D. 720, 721 (E.D. Mich. 1983). "Once an action has been properly removed, however, plaintiff may not do anything to defeat federal jurisdiction and force a remand to state court." Boyd, 97 F.R.D. at 721 (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 (1938); Comstock v. Morgan, 165 F. Supp. 798 (D. Mo. 1958)).
Moreover, the subsequent dismissal of the removing defendant does not divest the court's subject matter jurisdiction where it is based, as here, on federal question. See Robinson v. Holiday Universal, Inc., No. CIV.A. 05-5726, 2006 WL 470592, at *3 (E.D. Pa. Feb. 23, 2006). If the district court's jurisdiction was proper at the time of removal, plaintiffs cannot "unring the bell" by dismissing the removing defendant. Id.
Accordingly, the second motion to remand (Doc. 14) is DENIED.
III. DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS
In support of their motion for judgment on the pleadings, defendants argue that claims against Officer Troy Wolf and Franklin City Prosecutor Steven Runge are barred by the applicable statute of limitations. They further argue that claims against Runge should be dismissed as redundant of claims brought against the City of Franklin. Alternatively, they seek dismissal of claims against Runge on the grounds that he is entitled to quasi-judicial immunity and, because he acts as an agent for the State of Ohio, that claims against him are barred by the Eleventh Amendment.
Although the motion for judgment on the pleadings is unopposed, the Court will address the merits of the motion. See Hackett v. G.D. Searle & Co., 246 F. Supp. 2d 591, 593 (W.D. Tex. 2002) (reviewing an unopposed motion for judgment on the pleadings on the merits after noting that it was a dispositive motion). See also Carver v. Bunch, 946 F.2d 451, 455 (6th Cir. 1991) (holding that "a district court cannot grant summary judgment in favor of a movant simply because the adverse party has not responded").
The standard of review for a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is the same as that for a motion to dismiss under Fed. R. Civ. P. 12(b)(6). EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001); Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998). When ruling on a defendant's motion to dismiss on the pleadings, a district court "must construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief." Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006) (quoting Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 512 (6th Cir. 2001)). The court, however, need not accept as true legal conclusions or unwarranted factual inferences. Id. (citing Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405 (6th Cir. 1998)).
1. Statute of Limitations
Plaintiffs bring this case pursuant to the authority of 42 U.S.C. § 1983 seeking redress for a denial of their constitutional rights. Section 1983 actions brought in Ohio are subject to the two year statute of limitations found in Ohio Rev. Code. Ann. § 2305.10. See Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989).
Claims against Wolf are based on his alleged participation in the events of August 16, 2002. Thus, plaintiffs were required to bring those claims on or before August 16, 2004.
Claims against Runge are based on his role in the prosecution of criminal charges against Combs and Carpenter. The charges against Carpenter were dismissed on January 17, 2003; the proceeding against Combs was terminated on January 28, 2003. Using the later date, plaintiffs were required to present a claim against Runge no later than January 28, 2005.
Leave to file the second amended complaint naming Wolf and Runge was granted on April 22, 2005, after the statute of limitations had expired. Unless the amendment relates back to the original complaint, claims against Wolf and Runge are barred by the statute of limitations.
Under Fed. R. Civ. P. 15(c)(3)(B), an amended complaint that adds a new defendant relates back to the original complaint only if the newly-named defendant "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against ...