United States District Court, S.D. Ohio, Eastern Division
ERIC R. ATKINSON, Plaintiff,
MUSKINGUM COUNTY COMMISIONERS, et al., Defendants.
L. Graham Judge.
REPORT AND RECOMMENDATION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion to
Dismiss Plaintiff's Third Cause of Action (Doc. 11) and
Defendants' Motion to File Their First Amended Answer
(Doc. 13). It is RECOMMENDED that
Defendants' Motion to Dismiss Plaintiff's Third Cause
of Action be GRANTED. Further,
Defendants' Motion to File Their First Amended Answer is
GRANTED, and the Clerk is directed to file
Doc. 13-1 as Defendants' First Amended Answer.
Eric Atkinson, a pro se prisoner, is currently incarcerated
at Noble Correctional Institution. (Doc. 3 at 3). Defendants
are the Muskingum County Commissioners, Muskingum County
Sheriff's Department, Deputy Sergeant Ryan Williams,
Deputy Ryan Dodson, Deputy Michael Lynn, Deputy Jeremy
Archer, and K-9 Deputy Narco. (Id. at 4).
following allegations are taken from Plaintiff's
Complaint: On October 29, 2017, members of the Muskingum
County Sheriff's Department made contact with the
Plaintiff at his home after receiving a complaint that he
assaulted the mother of his children. (Id., ¶
5). Deputies spoke to Plaintiff through a kitchen window, and
Plaintiff indicated that they could not come inside without a
warrant. (Id., ¶¶ 6-8).
thereafter, Defendant Williams allegedly raised the screen in
the window and, along with Defendant Dodson, “dove
through the kitchen window, ” landing on top of
Plaintiff. (Id., ¶ 10). Plaintiff was knocked
unconscious from his head hitting the floor, and Defendants
Williams and Dodson “began to punch on the Plaintiff
with closed fist[s].” (Id., ¶ 11). After
being handcuffed, another deputy on the scene, Defendant
Archer, “punched the Plaintiff twice more with a closed
fist” causing Plaintiff to fall “back to the
floor.” (Id., ¶ 12). Defendant Archer
“also allowed his K-9 partner Defendant Narco to
aggressively put its face within inches of the plaintiff, as
if Defendant Archer was going to allow Defendant Narco to
bite Plaintiff with no provocation.” (Id.,
¶ 13). While he was unconscious, Defendants Williams,
Archer, Dodson, and Lynn “punched and kicked Plaintiff
repeatedly.” (Id., ¶ 15). Deputies then
dragged Plaintiff outside where he “began coming to and
started screaming for help.” (Id., ¶ 17).
He was subsequently taken to the hospital where he was
treated for a number of injuries to his head and face.
(Id., ¶¶ 18-19).
leaving the hospital, Plaintiff was taken to Muskingum County
Jail “where on several occasions [he] complained of
damages to his left eye and right ear and was told by the
jail staff that he would be fine.” (Id.,
¶ 20). Plaintiff contends that he was subject to medical
indifference at the Jail because he “daily asked to see
an optometrist or doctor” and his requests were
“ignored.” (Id., ¶ 22).
filing an initial two-count Complaint (Doc. 3), Plaintiff
filed a purported Third Cause of Action against Defendants
Williams, Dodson, Archer, Lynn, and K-9 Narco for entering
his residence without a warrant or probable cause in
violation of the Fourth Amendment, (Doc. 10). Defendants
filed the instant Motion to Dismiss and Motion to File First
Amended Answer, which have been fully briefed and are ripe
DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD CAUSE
OF ACTION (Doc. 11)
move to dismiss Plaintiff's third cause of action
pursuant to Rule 12(b)(6). That Rule requires that a
complaint “state a claim to relief that is plausible on
its face” to survive a motion to dismiss. Ashcroft
v. Iqbal, 556 U.S. 662, 663-64, 678 (2009); Bell
Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). In
reviewing the complaint, a court must construe it in favor of
the plaintiff and accept all well-pleaded factual allegations
as true. Id. at 57. “A claim has facial
plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (emphasis
added) (citing Twombly, 550 U.S. at 556).
other hand, a complaint that consists of “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action” is insufficient.
Twombly, 550 U.S. at 555; see also Brown v.
Matauszak, 415 Fed.Appx. 608, 613 (6th Cir. 2011)
(noting that a plaintiff must give specific, well-pleaded
facts, not just conclusory allegations). In other words,
while “detailed factual allegations” are not
required under Fed.R.Civ.P. 8(a)(2)'s “short and
plain statement” rule, the law “demands more than
an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 677-78
(quoting Twombly, 550 U.S. at 555) (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
argue that Plaintiff's third cause of action should be
dismissed “because his claim challenges acts, which if
proven, would render his conviction invalid and, therefore,
is not cognizable under” § 1983. (Doc. 11 at 3
(citing Heck v. Humphrey, 512 U.S. 477, 490 (1994));
id. at 3-5 (developing argument)).
Heck, a prisoner may not bring a § 1983 action
“where success would necessarily imply the unlawfulness
of a (not previously invalidated) conviction or
sentence.” Wilkinson v. Dotson, 544 U.S. 74,
81 (2005). Here, Plaintiff pled guilty to charges of
felonious assault, domestic violence, and resisting arrest.
See State v. Atkinson, No. CT2018-0015, 2018 WL
5279078, at *1 (Ohio Ct. App. Oct. 22, 2018). But in his
third cause of action, he alleges that Defendants entered his
residence without a warrant or probable cause in violation of
the Fourth Amendment. (See generally Doc. 10).
“Through this argument, Plaintiff attempts to do
exactly what Heck bars: justify his acts of
resistance and contest his conviction for resisting
arrest.” Hayward v. Cleveland Clinic Found.,
759 F.3d 601, 614 (6th Cir. 2014). “If Plaintiff were
to succeed on an illegal home entry claim, it would render
his arrest unlawful and imply the invalidity of his
underlying guilty plea for resisting arrest.”
Id.; see also Id. at 613 (citations
omitted) (“An unconstitutional entry makes an arrest
unlawful under Ohio's resisting arrest statute.”).
The Undersigned will, therefore, recommend that
Defendants' Motion to Dismiss be granted and that
Plaintiff's third cause of action be dismissed “for
lack of subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(h)(3), rather than” under Rule 12(b)(6),
“because the ...