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Derrico v. Moore

United States District Court, N.D. Ohio

July 26, 2018

TORRIS MOORE, et al., Defendants.



         This case is before the Court upon consent of the parties, entered June 30, 2017. (Doc. No. 12.) Currently pending is Plaintiff Walter Derrico's Motion to Lift Stay. (Doc. No. 29.) Defendant City of East Cleveland opposed the Motion. (Doc. No. 30.) For the following reasons, Plaintiff's Motion to Lift Stay (Doc. No. 29) 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.[1] (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. On September 9, 2017, this Court issued a Memorandum Opinion & Order granting the State of Ohio's Motion and dismissing it from the case. (Doc. No. 14.)

         The City of East Cleveland Defendants thereafter filed Motions for Summary Judgment and to Dismiss. (Doc. Nos. 16, 17.) Plaintiff moved to strike both motions. (Doc. Nos. 19, 20.) Defendants opposed the Motion to Strike and, in the alternative, moved for leave to file a Motion to Dismiss. (Doc. No. 22.)

         On November 3, 2017, Plaintiff and the City of East Cleveland Defendants filed a Joint Motion to Stay. (Doc. No. 21.) The motion explained as follows:

On October 27, 2017, this Court held a telephonic status conference with the Parties; and thereafter Mr. Derrico agreed to pursue relief before the Ohio Court of Claims. As this Court is aware, Mr. Derrico is first required to seek, before the Cuyahoga County Court of Common Pleas, a declaration that he was wrongfully convicted. Thereafter, Mr. Derrico may seek relief before the Ohio Court of Claims. At this juncture it is unknown the length of time it will take to resolve this matter before the Ohio Court of Claims. Therefore, this Court is respectfully urged that a stay of this matter, be provided by Order of this Court.


         On December 7, 2017, the Court issued an Order granting a stay to allow Plaintiff to pursue relief before the Ohio Court of Claims. (Doc. No. 23.) The stay was granted on the condition, however, that Plaintiff (1) initiate proceedings in state court within thirty (30) days of this Order; and (2) file monthly status reports in this Court regarding the progress of his state court proceedings. (Id.) Defendants' Motions for Summary Judgment and to Dismiss, and Plaintiff's Motions to Strike, were denied without prejudice subject to refiling once the stay is lifted. (Id.)

         Plaintiff filed Monthly Status Reports on January 12, February 12, March 30, and May 2, 2018. (Doc. Nos. 24, 25, 26, and 28.) In the last of these Status Reports, Plaintiff stated as follows:

Ohio law providing for benefits to persons wrongfully imprisoned involves two separate and distinct actions. A claimant must first file an action in common pleas court to be declared an eligible individual. If the common pleas court finds the individual to be eligible, an action is brought in the Court of Claims to determine compensation. Mr. Derrico has filed the [Cuyahoga] common pleas court action, Docket No. CV 18 891381.
The State of Ohio moved for judgment on the pleadings. The basis for that motion was that Mr. Derrico had plead guilty and Ohio Revised Code §2743.48(A)(2) prohibits persons who pled guilty to received compensation. Mr. Derrico argued that the prohibition constitutes an unconstitutional classification under both the United States Constitution and the Ohio Constitution. During the past week, the common pleas court granted the State of Ohio judgment on the pleadings and dismissed the action with prejudice. Mr. Derrico is in the process of filing an appeal to the Ohio Court of Appeals for the Eighth District.

(Doc. No. 28.) Plaintiff maintains “given the progress of the state action to date, Mr. Derrico believes it would be necessary and prudent to reactivate his federal lawsuit.” (Id.) He indicated an intent to file motions to lift the stay, amend his federal Complaint, and establish a discovery schedule. (Id.)

         On May 15, 2018, Plaintiff filed a “Motion to Lift Stay of Proceedings.” (Doc. No. 29.) Therein, he asserts, summarily, [2] that “there is much more litigation needed to determine if [he] is even eligible for compensation under the Ohio Wrongful Imprisonment Statute” and “it would not be productive to keep this case on hold while [he] pursues appeals which may or may not be successful in the state court.” (Id. at 1.) Derrico requests the Court (1) lift the stay; (2) set a date by which he may file an Amended Complaint; (3) set a discovery schedule; and (4) set dates for the filing of dispositive motions and responses. (Id. at 2.)

         Defendant City of East Cleveland filed a Brief in Opposition on May 30, 2018. (Doc. No. 30.) Defendant maintains that, under the Pullman Abstention Doctrine, this matter should remained stayed until Derrico's state appeal has been decided. Defendant asserts that “should the Eighth District Appellate Court determine that Mr. Derrico is qualified to pursue his claims, the Ohio Court of Claims would possess exclusive, original jurisdiction over such claims, and this Court would therefore lack subject matter jurisdiction.” (Id.) Lastly, Defendant argues that, as Plaintiff has requested the state appellate court resolve the constitutional question at issue, this Court would be precluded from further addressing the issue under principles of res judicata. (Id.)

         Derrico failed to file a response.

         II. ...

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