Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Ferrero

United States District Court, N.D. Ohio, Eastern Division

June 12, 2017

JAMEL A. SMITH, Plaintiff,
v.
JOHN D. FERRERO, et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 7, 18, 21, 23, 25, 28, AND 29]

          Benita Y. Pearson United States District Judge

         Pending before the Court are Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendants Stark County Prosecuting Attorney John D. Ferrero, Stark County Public Defender Tammi R. Johnson, Judge Sara Lioi, Stark County Commissioners, and Judges of the Stark County Court of Common Pleas (“Stark County Defendants”) (ECF No. 18); Motion to Dismiss pursuant to Rule 12(b)(6) filed by Defendant Ohio Attorney General Mike DeWine (“DeWine”) (ECF No. 23); and Motion to Dismiss pursuant to Rule 12(b)(6) filed by Defendant the City of Canton (“Canton”) (ECF No. 25) (collectively, “the Motions to Dismiss”). Also pending is the Motion for Judgment on the Pleadings pursuant to Fed. R. Civ. P. 12(c) filed by Defendants the Judges of the Canton Municipal Court (“the Canton Judges”) (ECF No. 28). In addition, Plaintiff filed a Motion for Default Judgment against DeWine, Canton and the Canton Judges (ECF No. 29). The Court has been advised, having reviewed the record, the parties' briefs, and the applicable law. For the reasons set forth below, the Court (1) grants the Motions to Dismiss; (2) grants the Motion for Judgment on the Pleadings; and (3) denies the Motion for Default Judgment.

         I. Background

         Pro Se Plaintiff Jamel A. Smith has an extensive history of criminal convictions dating back to 1996. See Case Dockets of Canton Municipal and Stark County Common Pleas Courts (ECF Nos. 18-1 and 18-2). Most recently, Plaintiff was arrested on January 10, 2017 and charged with possession of cocaine. On January 23, 2017, a preliminary hearing was conducted in the Canton, Ohio Municipal Court. Canton v. Smith, No. 2017CRA00152 (Canton Mun. Ct. filed Jan. 10, 2017). The Court found probable cause and bound the case over to the Stark County, Ohio Court of Common Pleas. State v. Smith, No. 2017CR0122 (Stark Ct. Common Pleas Ct. filed Jan. 23, 2017). Plaintiff was released on bond. The Stark County Grand Jury returned an Indictment against Plaintiff on February 10, 2017 for one count of possession of cocaine. That case is still pending.

         On January 20, 2017, prior to the above-referenced indictment, Plaintiff filed this action under 42 U.S.C. § 1983 against Stark County Prosecutor John D. Ferrero and Stark County Public Defender Tammi R. Johnson. Complaint (ECF No. 1). He filed a [First] Amended Complaint (ECF No. 8) on February 9, 2017, which added the Judges of the Stark County Common Pleas Court, the Canton Judges, the Stark County Commissioners, DeWine, Canton, and Judge Lioi[1] as new party defendants. In his pleadings, Plaintiff contends that when a prosecutor seeks the indictment, rather than conducting a preliminary hearing, she violates the suspect's due process and equal protection rights under the United States Constitution.

         Defendants seek dismissal of the case at bar. They all argue that seeking an indictment rather than conducting a preliminary hearing does not violate a suspect's constitutional rights. The Stark County Defendants and the Canton Judges assert absolute judicial immunity. The Stark County Defendants also assert prosecutorial immunity. They state that the public defender is not a state actor and cannot be sued under 42 U.S.C. § 1983. The Stark County Commissioners and DeWine contend Plaintiff has not alleged they were personally involved in the actions giving rise to the [First] Amended Complaint (ECF No. 8). Finally, the Canton Judges assert Plaintiff failed to state a claim for conspiracy, and the statute of limitations expired insofar as his claim pertains to events occurring prior to January 20, 2015.

         II. Motion for Default Judgment (ECF No. 29)

         Fed. R. Civ. P.12(a)(1)(A)(i) provides that “[u]nless another time is specified by this rule or a federal statute, the time for filing a responsive pleading, ” i.e., an answer, is “21 days after being served with 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. Rule 12(a)(4).

         The method of computing time is found in Fed. R. Civ. P. 6(a). When calculating the 21 days to file an answer or responsive pleading, the day of service is excluded. Rule 6(a)(1)(A). Thereafter, every day, including Saturdays, Sundays and legal holidays are counted. Rule 6(a)(1)(B). If the last day of the period falls on a Saturday, Sunday or legal holiday, however, the response is due by the end of the next business day that is not a Saturday, Sunday or legal holiday. Rule 6(a)(1)(C). The last day of the period ends for those filing electronically at midnight in the Court's time zone or, for those filing manually, at the time the clerk's office is scheduled to close. Rule 6(a)(4)(A) and (B).

         Plaintiff seeks a default judgment against DeWine, the Canton Judges, and Canton. These Defendants were not included in the original Complaint (ECF No. 1). They were added as Defendants in the [First] Amended Complaint (ECF No. 8) filed on February 9, 2017, and were served with that pleading on February 14, 2017. See Returns of Service (ECF Nos. 15, 16, and 19). Their answer dates were, therefore, March 7, 2017. On March 6, 2017, Dewine and Canton filed timely Motions to Dismiss (ECF Nos. 23 and 25). Canton also filed a timely Answer (ECF No. 26) on March 6, 2017. In addition, the Canton Judges filed a timely Answer (ECF No. 27) and Motion for Judgment on the Pleadings (ECF No. 28) on March 7, 2017. None of these Defendants are in default. Plaintiff's Motion for Default Judgment (ECF No. 29) is denied.

         III. Standard of Review

         The procedural standard for determining a judgment on the pleadings under Fed. R. Civ. P. 12(c) is indistinguishable from the standard of review for dismissals based on failure to state a claim under Fed. R. Civ. P. 12(b)(6). U.S. ex rel. Bledsoe v. Community Health Systems, Inc., 342 F.3d 634, 643 (6th Cir. 2003); Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511-12 (6th Cir. 2001) (citing Mixon v. Ohio, 193 F.3d 389, 399-400 (6th Cir. 1999)). In deciding a motion to dismiss pursuant to Rule 12(b)(6), or a motion for judgment on the pleadings under Rule 12(c), the Court must take all well-pleaded allegations in the complaint as true and construe those allegations in a light most favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. The factual allegations in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citing authorities).

         In other words, claims set forth in a complaint must be plausible, rather than conceivable. Id. at 570. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). The factual allegations in the complaint “must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action.” Twombly, 550 U.S. at 555 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, p. 235-236 (3d ed. 2004)). In addition to reviewing the claims set forth in the complaint, a court may also consider exhibits, public records, and items appearing in the record of the case as long as the items are referenced in the complaint and are central to the claims contained therein. Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008); Erie County, Ohio v. Morton Salt, Inc., 702 F.3d 860, 863 (6th Cir. 2012).

         IV. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.