Andrews v. Flaiz
| Decision Date | 30 September 2014 |
| Docket Number | Case No.: 1:14 CV 623 |
| Court | U.S. District Court — Northern District of Ohio |
| Parties | JOHN MARK ANDREWS JUDEE ANDREWS, Plaintiffs v. JAMES R. FLAIZ, et al., Defendants |
MEMORANDUM OF OPINION AND ORDER
Pro se Plaintiffs John Mark Andrews and Judee Andrews filed this action under 42 U.S.C. §§ 1983, 1985, and 1986 against Geauga County Prosecutor James R. Flaiz, former Geauga County Prosecutor David Joyce, Geauga County Assistant Prosecutor Nicholas Burling, Geauga County Assistant Prosecutor Matthew Greenway, Geauga County Sheriff Daniel McClelland, Geauga County Deputy Sheriff J. Jonovich, Geauga County Deputy Sheriff John Hiscox, Unknown Geauga County Prosecutors, Unknown Geauga County Sheriff's Deputies (collectively referred to as the "Geauga County Defendants"), Chardon Police Officer James Gillette, Chardon Police Chief Tim McKenna, Chardon Police Officer Troy Duncan, Chardon Police Officer James Bryant, Chardon Police Officer Bryon Childs, Chardon Police Officer Paul Pfiester, Chardon Police Officer Deborah Easton, Chardon Police Officer Mike Shaw, Chardon Police Officer Sally Harmasek, and Unknown Chardon Police Officers (collectively referred to as the "Chardon Defendants"). In the Complaint, Plaintiffs assert claims pertaining to John Andrews's arrest and prosecution. They seek injunctive relief and monetary damages.
Plaintiffs filed a Motion for Default Judgment against Joyce, Burling, Greenway, McClelland, Jonovich, and Hiscox on May 16, 2014, claiming they did not enter an appearance. (ECF No. 11). The Court's docket reflects that a Return of Service was filed on May 2, 2014 indicating these Defendants were served on April 14, 2014. (ECF No. 6). On May 6, 2014, these Defendants filed a Motion for Leave to Plead until May 30, 2014. (ECF No. 9). That Motion was granted on May 7, 2014. They filed their Motion to Dismiss on May 19, 2014, well within the time granted by the Court. The Motion for Default Judgment (ECF No. 11) is denied.
The Geagua County Defendants filed a Motion to Dismiss under Federal Civil Rule 12(b)(6) on May 19, 2014. (ECF No. 16). The Chardon Defendants filed a Motion to Dismiss under Rule 12(b)(6) on May 23, 2014. (ECF No. 17). For the reasons set forth below, the Motions to Dismiss are granted and this action is dismissed.
On the evening of April 2, 2012, Kory Johnson ran into the lobby of the Chardon Police station claiming his uncle, John Andrews, held a loaded AK-47 to his head and attempted to pull the trigger. Plaintiff claims his nephew was drunk at the time he made the report, and denies its veracity. Chardon Police Officer Childs and Geauga County Deputy Sheriff Jonovich were dispatched to Mr. Andrews's residence. John Andrews was not at home; however, the officers spoke to Plaintiff's wife, Judee Andrews, who also lived at the residence. Judee Andrews told police her husband had not fired weapons that evening.
Chardon police continued to search for John Andrews. After hours of looking for him, they found him in an alley on Court Street. Plaintiff claims the officers dragged him from his vehicle using excessive force and arrested him on charges of felonious assault, domestic violence, andhaving weapons under disability. Plaintiff alleges that after he was in custody, unknown Chardon Police Officers went to his home and discovered rifles, guns, and ammunition on the front porch. The weapons were taken as evidence. Plaintiff alleges Lieutenant Duncan and Deputy Jonovich went to his place of work to search for additional weapons. Jonovich found two weapons in or around a dumpster, although, there is some dispute regarding the exact location where the weapons were discovered.
Plaintiffs allege Prosecutor David Joyce advised Lieutenant Troy Duncan on the initial charges that should be brought against John Andrews. Bond was set at his initial arraignment and although Plaintiffs assert it was excessive, they indicate they were able to post bond and secure John Andrews's release.
Plaintiffs also allege that upon John Andrews's release on bond, they filed discovery requests with the Geauga County Prosecutor's Office and public records requests with the Chardon Police Department seeking, in part, the dashboard camera video footage of his arrest. They allege Sally Harmasek, Unknown Chardon Police Officers, and James Gillette destroyed all of the video and audio footage of his arrest, which he contends would show "unreasonable excessive force, physical assaults/threats, lack of miranda rights, and physical assaults/threats committed inside/outside of the Chardon PD by Co-Defendants et al from the day of the alleged incident... ." (ECF No. 1 at 6). They claim Police Chief Tim McKenna testified that Chardon Police policy requires footage to be retained for one year. Plaintiffs then allege "it is [the] custom/policy of the Defendant Chardon PD Chief Tim McKenna [and] the Chardon PD Policy/Custom to destroy video/audio recordings of Chardon PD dashboard cams within 10 days as falsely asserted [by] Defendant Sally Harmesek to the state trial court by Defendants Nicholas Burling and Matthew Greenway that the Chardon PDdoes not retain police dashboard cam video/audio for one year... ." (ECF No. 1 at 7). Plaintiffs allege this proves that McKenna was deliberately indifferent in failing to train or discipline his officers.
A grand jury indicted John Andrews on felonious assault and weapons under disability charges on April 27, 2012. Prior to trial, Andrews subpoenaed sixteen individuals from the Geauga County Prosecutor's Office and the Chardon Police Department. The court, however, quashed many of these subpoenas. The case went to trial, but resulted in a mistrial on October 12, 2012.
The case was tried a second time. John Andrews filed twenty-one subpoenas which the court again quashed. The prosecution's key witness, Kory Johnson, fled from Ohio to California after his encounter with John Andrews. He could not be reached, would not respond to correspondence, and refused to appear to testify at trial. Without the testimony of the victim, the jury acquitted Mr. Andrews on December 18, 2012. He filed a Motion for Return of his Weapons and the Geauga County Court of Common Pleas ordered the Chardon Police Department to return the weapons on February 7, 2013. It is not clear whether all of the weapons in question were returned.
Plaintiffs assert seven causes of action which overlap and are redundant. Together, these causes of action assert that the Defendants, acting in their official and individual capacities, violated Plaintiff's federal constitutional rights to equal protection and due process under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. In addition, they claim that Defendants conspired to violate their federal constitutional rights to equal protection and due process under the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Finally, while not specifically listing them as causes of action, Plaintiffs state in the body of their Complaint that the Defendants subjected John Andrews to malicious prosecution, destroyed evidence, deprived Plaintiffs of their right to beararms, and used excessive force in the course of John Andrews's arrest. Because the pleadings of pro se litigants are held to a less stringent standard than those drafted by attorneys, the Court liberally construes the Complaint to include these claims. Plaintiffs seek an order requiring Defendants to return their weapons, and awarding them monetary damages in the amount of $1,000,000.00. They also request class action certification.
The Geagua County Defendants filed a Motion to Dismiss under Federal Civil Rule 12(b)(6) on May 19, 2014. (ECF No. 16). Initially, they assert Judee Andrews lacks standing to bring most of the claims in this action because she is not the injured party. Most of Plaintiffs' claims assert injury to John Andrews, not Judee Andrews. Furthermore, they contend prosecutors Flaiz, Joyce, Burling, and Greenway are entitled to absolute immunity for actions and decisions made in the course of John Andrews's prosecution. They assert Plaintiffs' claim of malicious prosecution is time barred by a one-year statute of limitations and fails to state a claim upon which relief may be granted. They contend that Plaintiffs' excessive force claim fails to state a claim upon which relief can be granted against them because Plaintiffs do not allege any County Defendant was personally involved in applying force. They assert Plaintiffs' allegations of witness tampering fall within the parameters of a federal criminal statute, 18 U.S.C. § 1513, and assert Plaintiffs failed to allege facts to prove elements of witness tampering. They analyze Plaintiffs' allegations of spoilation of evidence under Ohio tort laws and conclude the claim does not meet the heightened pleading requirement for fraud under Federal Civil Procedure Rule 9. They assert Plaintiffs' claims with respect to the subpoenas were already addressed by the Geauga County Court of Common Pleas and are therefore barred by res judicata. Finally, they assert Plaintiffs failed to allege facts to establish all of the elements of a conspiracy under 42 U.S.C. § 1983 or under Ohio tort law.
The Chardon Defendants filed a Motion to Dismiss under Rule 12(b)(6) on May 23, 2014. (ECF No. 17). They also assert Judee Andrews lacks standing to sue for her husband's alleged injuries. They further assert Plaintiffs failed to plead their claims with sufficient factual support to state a viable claim under 42 U.S.C. § 1983. Specifically, they contend that none of Plaintiffs' allegations suggest a violation of a right delineated in the First Amendment. They claim the Fifth Amendment Due Process Clause applies to the federal government, not to states. They contend the Geauga County Common Pleas Court already decided the issues pertaining to Plaintiffs' subpoenas and any Sixth Amendment...
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