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Derrico v. Moore

United States District Court, N.D. Ohio

September 7, 2017

WALTER DERRICO, Plaintiff,
v.
TORRIS MOORE, et al., Defendants.

          MEMORANDUM OPINION & ORDER

          JONATHAN D. GREENBERG U.S. MAGISTRATE JUDGE.

         Currently pending before the Court is Defendant State of Ohio's Motion to Dismiss pursuant to Fed. Rules of Civ. Pr. 12(b)(1) and 12(b)(6).[1] (Doc. No. 7.) Plaintiff Walter Derrico did not file a response to Defendant's Motion. For the following reasons, Defendant State of Ohio's Motion to Dismiss (Doc. No. 7) is GRANTED.

         I. Procedural Background

         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.[2] (Doc. No. 5.) A case management conference was thereafter conducted on June 30, 2017, at which time case management deadlines were set. (Doc. No. 11.)

         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. Defendant's Motion is, therefore, unopposed.

         II. Factual Allegations

         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 or 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.[3] (Id.)

         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.[4] (Id. at pp. 12-17.) Plaintiff alleges Defendants Moore, Malone, and Jones “provided prosecutors with fabricated evidence which allowed the State, unfortunately, to charge Mr. Derrico with [trafficking and drug possession charges], the conviction of which were subsequently dropped by the State of Ohio.” (Id. at ¶ 36.)

         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.[5] (Id. at pp. 34-45.) Plaintiff alleges he suffered various “emotional, personal, and financial damages” enumerated in the Complaint. (Id. at pp. 46-47.) He also seeks attorney fees and costs. (Id. at p. 47.)

         III. Standard of Review

         Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of a complaint over which the Court lacks subject matter jurisdiction. “Where subject matter jurisdiction is challenged pursuant to 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion.” Mich. S.R.R. Co. v. Branch & St. Joseph Counties Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th Cir.2002). Rule 12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come in two varieties. See Metheney v. United States, 2017 WL 2105303 at * 1 (N.D. Ohio May 12, 2017). “A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss.” McGuire v. Ameritech Servs., 253 F.Supp.2d 988, 993-94 (S.D. Ohio 2003) (quoting Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). See also Machisa Design Services, Inc. v. Board of Educ. Of School Dist. of the City of Columbus, 2013 WL 80273 at * 2 (S.D. Ohio 2013). In contrast, a factual challenge “is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of ...


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