CHARLES B. DIXON, Plaintiff,
COLLIN GINLEY, et al. Defendants.
MEMORANDUM OF OPINION
DAN AARON POLSTER, District Judge.
Pro se plaintiff Charles B. Dixon filed this action under 42 U.S.C. §§ 1983 and 1985 against Cleveland Police Officers Collin Ginley and Thomas Hodous, Police Commander Patrick Stephens, Police Chief Michael McGrath, Cleveland Public Safety Director Martin Flask, and Cleveland Mayor Frank Jackson. (Doc. # 1). In the Complaint, plaintiff alleges violations of his civil rights under the Fourth Amendment, as well as various state law tort claims stemming from defendants' purported unlawful search and seizure of Plaintiff. He seeks compensatory and punitive damages. For the reasons below, plaintiff's application to proceed in forma pauperis is GRANTED, and this case is DISMISSED.
The Complaint alleges that, on January 12, 2012, plaintiff drove to the Martin Luther King Jr. Shopping Plaza on Wade Park Avenue in Cleveland to purchase cigarettes. Plaintiff claims he then exited the parking lot, signaled and turned right on to Wade Park Avenue, proceeded to the traffic light at Crawford Road, signaled and turned left onto Crawford, and then signaled and turned left onto East 94th Street.
Meanwhile, Officers Ginley and Honous, who had been dispatched to the shopping plaza on reports of recent drug activity, also exited the shopping plaza parking lot and followed plaintiff onto East 94th Street. Plaintiff parked across the street from his "children's mother's house, " approximately six houses from the corner, and the officers pulled up and parked about three to five houses behind plaintiff. (Doc. # 1 at 5).
The mother of plaintiff's children noticed him sitting in his car smoking a cigarette and approached the driver's side window to speak with him. The two spoke for three to five minutes, at which time plaintiff claims the officers used the squad car's loud speaker to direct his female companion to back away from the car. The woman raised her hands, crossed back over the street to her home, and the officers pulled up behind plaintiff's car.
The officers then exited the squad car and approached plaintiff, who remained seated in his car. Plaintiff contends the officers attempted to open the car doors and, finding the doors locked, one of the officers reached in through the open window, unlocked the driver's door and opened it. That officer grabbed plaintiff to pull him from the vehicle but he was still wearing his seat belt. Plaintiff unhooked the belt and the officer pulled plaintiff out of the car, purportedly stating for him to "get the f- out." ( Id. at 6). Plaintiff was then escorted with his hands behind his back to the squad car, was thrown against the car "real hard, " and his front pants pockets were searched, revealing currency and a wallet. ( Id. ). Plaintiff was handcuffed and remained standing by the squad car while Officer Ginley proceeded to search his vehicle.
Following the search of plaintiff's car, Ginley purportedly ran at plaintiff and, pointing his finger at him, asked plaintiff if he thought "this is a f-ing game, " and took hold of plaintiff by the handcuffs. According to the Complaint, Ginley then opened the back door of the police cruiser, "slammed" plaintiff into the back seat in an upside down position and got in to the back seat next to plaintiff. ( Id. ). Officer Hodous entered the back seat of the squad car from the other side, both officers took hold of plaintiff's pants, pulled them down, and one of the officers performed a digital rectal exam on plaintiff, asking "where is the dope at?" ( Id. ). The officers then pulled plaintiff's pants back up, pushed hm over onto his side, and got into the front seat of the car. Plaintiff sat upright and asked the officers "why they were doing this?" Ginley allegedly responded "we can do what the f- we wanna do." ( Id. at 8).
Ginley asked plaintiff for his Social Security number and ran plaintiff's information through the computer system, which provided a read out of plaintiff's criminal history. Plaintiff asked what he was being arrested for and Hodous stated, "impeding the flow of traffic." ( Id. ). The officers radioed for a tow truck, and Hodous instructed another officer who had arrived at the scene to wait for the tow truck while Ginley and Hodous transported plaintiff to the city jail.
The citation issued to plaintiff, a copy of which is attached to the Complaint, indicates the officers charged plaintiff with change of course and having an open container of vodka in his car. (Doc. # 1-1). Further, plaintiff attached a copy of the offense/incident report, indicating additional offenses of carrying a concealed weapon, possession of a weapon under disability, and drug trafficking. (Doc. # 1-4).
On January 14, 2012, plaintiff entered pleas of no contest to the open container and change of course charges, consenting to a finding of guilty on both counts. See Cleveland Municipal Court cases: State of Ohio/City of Cleveland v. Dixon, Nos. 2012 TRD 002302, 2012 CRB 001298 (filed on Jan. 13, 2012), available at https://pa.clevelandmunicipalcourt.org/pa/prodpa.urd/pamw6500.display. Further, on that same date, plaintiff was indicted in the Cuyahoga County Court of Common Pleas on a single charge of carrying a concealed weapon. See State of Ohio v. Dixon, No. CR-12-558544-A (filed on Jan. 14, 2012), available at http://cpdocket.cp.cuyahogacounty.us/Search.aspx. Additionally, on February 7, 2012, plaintiff was indicted in this Court on a single count federal indictment for felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Dixon, No. 1:12-cr-69, Doc. # 1 (N.D. Ohio filed on Feb. 7, 2013). Subsequently, the state court granted the county prosecutor's motion to terminate the concealed weapons charge and that case was dismissed without prejudice to refiling. See State of Ohio v. Dixon, No. CR-12-558544-A (docket entry dated Feb. 13, 2012). Plaintiff is presently being held on the federal felon in possession charge at the Northeast Ohio Correctional Center (NEOCC).
Plaintiff filed the instant Complaint on March 6, 2013, alleging the following claims against defendants Ginley and Hodous: unlawful search and seizure in violation of plaintiff's due process, equal protection, and Fourth Amendment rights; malicious prosecution; false arrest and imprisonment; assault; battery; intentional and negligent infliction of emotional distress; and negligence. As against defendants Stephens, McGrath, Flask and Jackson, the Complaint alleges claims for respondeat superior liability, negligent training, and failure to instruct, supervise, control and discipline Ginley and Hodous. The Complaint also asserts all of the defendants conspired to violate plaintiff's civil rights in violation of §§ 1983 and 1985 and Ohio common law. Plaintiff seeks monetary relief.
II. STANDARD OF REVIEW
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). An action has no arguable basis in law when a defendant is immune from suit or when a plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable ...