El-Bey v. Wallace
| Decision Date | 09 February 2023 |
| Docket Number | 2:21-cv-00389 |
| Parties | EL-BEY et al., Plaintiff, v. WALLACE et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION & ORDER
This matter comes before this Court on: (1) the Magistrate Judge's August 11, 2022 Report and Recommendation (“R&R”) (ECF No. 38) recommending Plaintiff's Second Motion for Default Judgment (ECF No 19) be denied; (2) the Magistrate Judge's June 21, 2022 R&R (ECF No. 26) recommending that Plaintiff's Motion for Summary Judgment (ECF No. 20) be denied as premature; and (3) Defendants' Motion to Dismiss (ECF No. 35). Plaintiff timely objected to both R&Rs and the Motion to Dismiss. (ECF Nos. 28; 39; 37). This Court rules as follows:
Plaintiff J'ttonali One Eye El-Bey brings the present action against the City of Franklin, the City of Franklin Police Department, and City of Franklin Police Officers L. Wallace, G. Rossel, Butler, Holland, S. Davis, and E. Diekman. He alleges that he and a Nichole L. Taylor[1] were driving in Franklin, Ohio on May 24, 2021, when law enforcement officers “without any lawful purpose” stopped their vehicle and “detained, threatened, assaulted, frisked, and arrested” Plaintiff. (ECF No. 1 at 1). While waiting to take a left turn during a drive from their home to a Walmart, Plaintiff alleges that Ms. Taylor, the driver, was forced to enter the wrong side of the road to avoid being hit by a speeding car. (ECF No. 28 at 2). Shortly thereafter, they were pulled over by a City of Franklin police vehicle driven by Officer Wallace-the same vehicle which Plaintiff alleges was speeding and almost hit them. (Id.). Defendants counter that Ms. Taylor was pulled over after committing a traffic violation by cutting a turn in a lane short to speed through a light. (ECF No. 35 at 2). When Defendant Officer Wallace approached the vehicle, she requested Ms. Taylor's license and insurance, which Ms. Taylor provided, “without delay.” (ECF No. 28 at 3).
Plaintiff maintains that even though he was a passenger, Defendant Wallace then asked for Plaintiff's identification or social security number despite lacking legal authority. (Id.). Plaintiff alleges that Officer Wallace told him he was being ordered to provide his name and social security number per Ohio Revised Code (“Ohio Rev. C.”) § 2921.29(a)(1),[2] but Plaintiff refused. (Id.). During the ensuing fifty minutes, the other officer defendants arrived. (ECF Nos. 28 at 3; 35 at 2). According to an affidavit provided by Ms. Taylor, the back-up officers harassed the occupants of the vehicle by standing with a flashlight against the passenger window, threatening to “bust the window” of the vehicle, and using “full scare tactics.” (ECF No. 1 at 2). Plaintiff alleges that Officer G. Rossel and two to three other officers attempted to open the passenger side door, but Plaintiff refused to unlock the door because he believed the officers were acting unlawfully and Plaintiff was being “racially profiled.” (ECF No. 28 at 10). While Plaintiff live streamed the event from his smart phone, he alleges that the other officers forcefully removed Plaintiff and Ms. Taylor from the vehicle when they refused to comply with orders to exit the vehicle. (Id. at 3). Plaintiff alleges that he was “slammed to the conveyance, handcuffed, searched” and the officers seized some personal items from him. (Id. at 10-11). Defendants argue that Plaintiff had outstanding warrants, so he was detained properly and transported to the Warren County Jail in Lebanon, Ohio and Ms. Taylor was released. (Id. at 3-4; ECF No. 35 at 2). Plaintiff maintains that Officers Wallace and Davis conspired to lie to jail officials by stating that Plaintiff had committed a felony, as the jail was unwilling, due to COVID-19 protocols, to open a bed for an “alleged misdemeanor accusation.” (ECF No. 28 at 12). Plaintiff is currently detained in Butler County Jail in Hamilton, Ohio on other charges.
While it is not entirely clear what claims Plaintiff raises, it appears he alleges that Defendants violated his constitutional rights under color of state law during the arrest and subsequent detention, in violation of 42 U.S.C. § 1983. While Plaintiff does not specifically state that he seeks damages, this Court construes his reference to the fact that this court must “ascertain the damages which must be proven” as seeking damages as relief. (ECF No. 37 at 3-4). Plaintiff also states he is a Moorish American National of the Moorish American National Indigenous Tribal Government/Enterprise who travels under a Moorish travel document. (ECF Nos. 1 at 27; 6 at 1-2). Therefore, Plaintiff asserts that he is considered sovereign and should be afforded complete sovereign immunities. (ECF No. 19 at 1).
On June 9, 2021, Plaintiff filed the present, pro se action against the City of Franklin, Ohio, the City of Franklin Police Department, and several Franklin City police officers. (ECF No. 1). This Court granted Plaintiff leave to proceed in forma pauperis on July 26, 2021. (ECF No. 5). On August 12, 2021, Plaintiff filed an amendment to the Complaint, appearing to add additional law enforcement defendants to the present action. (ECF No. 6 at 1). Subsequently, Plaintiff filed a Motion for Consolidation of the Action (ECF No. 11), a Motion for Appointment of Counsel (ECF No. 14), the First Motion for Default Judgment (ECF No. 16), and a Second Motion for Default Judgment (ECF No. 19). On June 21, 2022, the Magistrate Judge held in abeyance the Second Motion for Default Judgment and denied the remaining motions. (ECF No. 23). The Magistrate Judge also ordered Defendants to show cause why Plaintiff's Second Motion for Default Judgment should not be granted as Defendants had yet to respond. (Id.). Prior to the Magistrate Judge's opinion on the other motions, Plaintiff filed a Motion for Summary Judgment (ECF No. 20) and an Application to the Clerk for Entry of Default (ECF No. 21) on May 9, 2022. On June 21, 2022, the Clerk made an Entry of Default as to the Defendants. The same day, the Magistrate Judge issued an R&R recommending that this Court deny Plaintiff's Motion for Summary Judgment (ECF No. 20) as premature. (ECF No. 26). The Plaintiff filed objections on June 30, 2022, well within the deadline to respond. (ECF No. 28).
On July 12, 2022, the Defendants filed a Motion to Set Aside Entry of Default, arguing they were unaware they had been served with Plaintiff's Complaint and Amended Complaint and had no intention “to thwart, delay or obfuscate this case.” (ECF No. 31 at 2). They also argued that once they received notice through the Court's Show Cause order, they timely responded. (Id.). That same day, they also responded to the Show Cause Order alleging they were not physically served with copies of Plaintiff's Complaint or Summons, in part due to the Southern District of Ohio's policy under General Order No. 20-39 providing for service allowance without effectuation due to the COVID-19 pandemic. (ECF No. 33 at 1-2). Defendants also filed a Motion for Leave to File (ECF No. 34) a responsive pleading and a Motion to Dismiss (ECF No. 35). Plaintiff responded to the Motion to Dismiss on July 22, 2022. (ECF No. 37). On August 11, 2022, the Magistrate Judge issued an R&R (ECF No. 38) recommending this Court deny Plaintiff's Second Motion for Default (ECF No. 19), granted the Defendants' Motion to Set Aside Entry of Default (ECF No. 31), and granted Defendants' Motion for Leave to File a Responsive Pleading (ECF No. 34). Plaintiff filed an objection and Defendants responded. (ECF Nos. 39; 40). Because Plaintiff has timely filed objections to both the R&Rs and Defendants' Motion to Dismiss (ECF Nos. 28; 39; 37), Plaintiff's Second Motion for Default Judgment (ECF No. 19), Plaintiff's Motion for Summary Judgment (ECF No. 20), Defendants' Motion to Dismiss (ECF No. 35), and this Court's two R&Rs (ECF No. 26; 38) are ripe for review.
If a party objects within fourteen days to the magistrate judge's proposed findings and recommendations, the district court “shall...
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