United States District Court, N.D. Ohio, Eastern Division
JAMEL A. SMITH, Plaintiff,
JOHN D. FERRERO, et al., Defendants.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS.
7, 18, 21, 23, 25, 28, AND 29]
Y. Pearson United States District Judge
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.
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.
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 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.
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.
Motion for Default Judgment (ECF No. 29)
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).
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).
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.
Standard of Review
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).
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 Â§ 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).