United States District Court, S.D. Ohio, Eastern Division
Algenon L. Marbley Judge.
REPORT AND RECOMMENDATION
ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE
state inmates who are proceeding without the assistance of
counsel, bring this action under 42 U.S.C. § 1983. This
matter is before the Court upon consideration of Defendants
Gary Mohr, Roger Wilson, Trevor Clark, Matt Gillum, Scott
Gobels, Eric Graves, D.J. Norris, and Jennifer Williams'
Motion to Dismiss (ECF No. 41) and Plaintiffs' Response
in Opposition (ECF No. 56). Defendants did not file a Reply.
For the following reasons, it is RECOMMENDED that
Defendants' Motion to Dismiss (ECF No. 41) be GRANTED IN
PART and DENIED IN PART.
BACKGROUND OF THE INSTANT ACTION
are inmates at Ohio correctional facilities. Plaintiffs
initiated this action by filing a Complaint on April 9, 2018.
(ECF No. 1.) Plaintiffs filed their First Amended Complaint
on June 15, 2018 (ECF No. 19) and their Second Amended
Complaint on November 30, 2018 (ECF No. 37). Plaintiffs bring
civil rights claims under 42 U.S.C. § 1983. Plaintiffs
identify as “Christian Separatists” and allege
that Ohio prison officials are denying them access to
religious literature in violation of the First Amendment,
Fourteenth Amendment, and the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”). On
December 14, 2018, Defendants moved to dismiss
Plaintiffs' Second Amended Complaint for failure to state
a claim. (ECF No. 41.) Plaintiffs filed their Response in
Opposition on February 1, 2019. (ECF No. 56.)
2009, Plaintiff Damron commenced a civil action in this Court
against the then-Ohio Department of Rehabilitation and
Corrections (“ODRC”) Religious Services Director
in which, amongst others, he advanced claims under the
RLUIPA, 42 U.S.C. § 2000cc-1. Damron v.
Jackson, No. 2:09-cv-050, 2011 WL 4402767 (S.D. Ohio
Sept. 21, 2011). In the 2009 action, the Court entered
summary judgment against all plaintiffs except Plaintiff
Damron. Id. (see ECF No. 327.) The Court
eventually dismissed the case for mootness because Plaintiff
Damron acknowledged that he had received the materials at
issue in the remaining claims of his lawsuit. Id.
(see ECF No. 347.)
August 26, 2015, Plaintiff Damron, Plaintiff Heid, and other
plaintiffs commenced a civil action in this Court seeking to
bring claims for violation of the Fourteenth Amendment, First
Amendment, § 1985(3), and RLUIPA. The Christian
Separatist Church Society of Ohio; the Wife of Christ,
Prosopopoeia et al. v. The Ohio Department of Rehab. &
Corr. et al., No. 2:15-cv-2757 (S.D. Ohio) (“2757
action”). On May 5, 2016, upon adoption of an October
1, 2015 Report and Recommendation, the Court dismissed
Plaintiff Damron's claims as barred by the doctrine of
res judicata and otherwise found that the remaining
plaintiffs, including Plaintiff Heid, could proceed under
their First Amendment and RLUIPA claims. (May 5, 2016 Order,
No. 2:15-cv-2757, ECF No. 12 at 7-8.) On March 17, 2017, upon
adoption of a January 30, 2017 Report and Recommendation, the
Court dismissed the remaining plaintiffs' claims under
the First Amendment, leaving only the RLUIPA claim. (March
17, 2017 Order, No. 2:15-cv-2757, ECF No. 42.) On March 30,
2018, the Court granted Defendants' Motion for Summary
Judgment. (March 30, 2018 Order, No. 2:15-cv-2757, ECF No.
110.) The Sixth Circuit Court of Appeals affirmed the
decision of this Court on February 13, 2019. The
Christian Separatist Church Society of Ohio; the Wife of
Christ, Prosopopoeia et al. v. The Ohio Department of Rehab.
& Corr. et al., No. 18-3404. Plaintiffs filed
another action in 2017. In the 2017 case, plaintiffs brought
claims identical to the ones brought in the 2009 action.
(February 26, 2018 Order, No. 2:17-cv-337, ECF No. 16 at pg.
2.) The Court dismissed plaintiffs' claims for failure to
assert any new material facts that would cure any weaknesses
in their previous claims. (Id. at pg. 8-9.) An
appeal of the 2017 action is currently pending in the Sixth
Circuit Court of Appeals. Damron v. Dodrill, et al.,
STANDARD OF REVIEW
bring their motion pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, alleging that Plaintiffs have
failed to state a claim upon which relief can be granted. To
survive a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a plaintiff must satisfy the basic
federal pleading requirements set forth in Federal Rule of
Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must
contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). Thus, Rule 8(a) “imposes legal
and factual demands on the authors of
complaints.” 16630 Southfield Ltd.,
P'ship v. Flagstar Bank, F.S.B., 727
F.3d 502, 503 (6th Cir. 2013).
this pleading standard does not require
“‘detailed factual allegations,' . . . [a]
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action, '” is insufficient. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A
complaint will not “suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (quoting
Twombly, 550 U.S. at 557). Instead, to survive a
motion to dismiss for failure to state a claim under Rule
12(b)(6), “a complaint must contain sufficient factual
matter . . . to ‘state a claim to relief that is
plausible on its face.'” Id. (quoting
Twombly, 550 U.S. at 570). Facial plausibility is
established “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. “The plausibility of an inference depends
on a host of considerations, including common sense and the
strength of competing explanations for the defendant's
conduct.” Flagstar Bank, 727 F.3d at 504
addition, the Court holds pro se complaints
“‘to less stringent standards than formal
pleadings drafted by lawyers.'” Garrett v.
Belmont Cnty. Sheriff's Dep't., No. 08-3978,
2010 WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)). This
lenient treatment, however, has limits; “‘courts
should not have to guess at the nature of the claim
asserted.'” Frengler v. Gen. Motors, 482
Fed.Appx. 975, 976-77 (6th Cir. 2012) (quoting Wells v.
Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
Statute of Limitations
argue that the statute of limitations for a 42 U.S.C. §
1983 civil rights action arising in Ohio expired before
Plaintiffs brought some of their instant claims, and
therefore those claims must be dismissed. (ECF No. 41, at pg.
7-8.) “The statute of limitations applicable to claims
arising under 42 U.S.C. § 1983 is the two-year statute
of limitations[.]” Wilder v. Collins, No.
2:12-cv-0064, 2012 WL 786855, at *2 (S.D. Ohio March 9, 2012)
(citing Browning v. Pendleton, 869 F.2d 989, 992
(6th Cir. 1989)). “Although the date of accrual for a
§ 1983 claim is a matter of federal law, state tolling
principles apply to determine the timelines of claims.”
Id. (quoting Davis v. Clark County Bd. of
Com'rs, No. 2:12-cv-0064, 2010 WL 333651, at *12
(S.D. Ohio Jan. 21, 2010)). In general,
equitable tolling applies only when a litigant's failure
to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant's control.
Graham-Humphreys v. Memphis Brooks Museum of Art,
Inc., 209 F.3d 552, 561 (6th Cir. 2000) (citations
omitted). “Absent compelling equitable considerations,
a court should not extend limitations by even a single
day.” Id. at 561. Additionally, “neither
‘excusable neglect' nor ignorance of the law are
sufficient to invoke equitable tolling.” See Rose
v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991) (“It
is well-settled that ignorance of the law alone is not
sufficient to warrant equitable tolling”); Harris
v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000)
(equitable tolling should apply only where petitioner is
prevented from asserting his claim by wrongful conduct of the
respondent or where extraordinary circumstances beyond the
petitioner's control make it impossible to file the claim
There are five factors to consider when determining the
appropriateness of tolling a statute of limitations:
“1) lack of notice of the filing requirement; 2) lack
of constructive knowledge of the filing requirement; 3)
diligence in pursuing one's rights; 4) absence of
prejudice to the defendant; and 5) the plaintiff's
reasonableness in remaining ignorant of the particular legal
requirement.” Truitt v. Cnty. of Wayne, 148
F.3d 644, 648 (6th Cir. 1998).
Davis, 2010 WL 333651 at *12.
Plaintiffs make the following allegation in their Complaint
that any delay in filing their claims was not due to their
own failure or negligence, but rather
is a result of a legal misrepresentation made by the
Defendants. Plaintiffs were advised by Trevor Clark, Asst.
Chief Counsel, Division of Legal Services, that these claims
were to be added to No. 2:15-CV-2757. Because of that
misrepresentation, the Plaintiffs asserted their rights in
the wrong forum(s) which caused the delay of the filing of
this action. Plaintiffs attempted to amend these claims
“2757” as well as making an attempt to supplement
these claims in that case. Furthermore, after those attempts
were denied, the Plaintiffs continued to pursue prosecution
of these claims by filing an appeal, known as No. 17-4213.
Reasonably relying on the Defendants' Legal Services
Department, specifically Defendant Clark's
misrepresentation, fraudulently concealed the fact that these
claims were to be filed as a separate action. As a result,
some of the claims of this Complaint are seemingly filed
beyond the statute of limitations under 42 U.S.C. 1983's
purview. Unquestionably, the Defendants' action has
caused an issue of equitable estoppel, where not for the
misrepresentation Plaintiffs' claims would have been
filed in a timely and appropriate manner.
(ECF No. 37, at pg. 17-18.) Defendants response to this
allegation in their Motion to Dismiss is simply that it would
have been a conflict of interest for Defendant Clerk to
provide plaintiffs with legal information if plaintiffs had a
pending lawsuit against the ODRC and that “[s]uch
accusations of misconduct are baseless[.]” (ECF No. 41,
at pg. 8.) Defendants provide no support for this
information. In any event, this argument goes to the merits
of Plaintiffs' claims rather than the sufficiency of the
is support for Plaintiffs' contention that they made an
attempt to supplement the claims in the 2757 action. In
The Christian Separatist Church Society of Ohio; the Wife
of Christ, Prosopopoeia et al. v. The Ohio
Department of Rehab. & Corr. et al., No.
2:15-cv-2757(S.D. Ohio), Plaintiffs Heid and Damron filed a
Motion for Leave to File Supplemental Complaint on March 8,
2017-within the two-year statute of limitations. (No.
2:15-cv-2757, ECF No. 40.) The Supplemental Complaint,
attached to Plaintiffs' Motion, is markedly similar to
the Complaint filed in the instant action. (No. 2:15-cv-2757,
ECF No. 40-1; No. 2:18-cv-311, ECF No. 1.) This Court has
previously held that submission of a Motion for Leave to
Amend tolls the statute of limitations in § 1983 cases.
Estate of Bing v. City of Whitehall, Ohio, 373
F.Supp.2d 770, 787-88 (S.D. Ohio June 22, 2005). The Court in
Estate of Bing noted
[a]s a party has no control over when a court renders its
decision regarding the proposed amended complaint, the
submission of a motion for leave to amend, properly
accompanied by the proposed amended complaint that provides
notice of the substance of those amendments, tolls the
statute of limitations, even though technically ...