Derrico v. Moore
| Decision Date | 26 July 2018 |
| Docket Number | CASE NO: 1:17CV866 |
| Parties | WALTER DERRICO, Plaintiff, v. TORRIS MOORE, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
MEMORANDUM OPINION & ORDER
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.
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 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:
(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.
The Complaint contains the following factual allegations. On October 2, 2012, Plaintiff was talking with friends outside 428 Arbor Street in Cleveland, Ohio. (Doc. No. 1 at ¶ 12.) Anunmarked car came down the street and stopped at that address. (Id. at ¶ 13.) Defendants Moore, Malone and Jones (who were City of East Cleveland police officers at the time) exited the unmarked car and approached Plaintiff. (Id. at ¶ 14.) One of these Defendants "slammed [Plaintiff] to the ground" and asked him, (Id. at ¶ 15.) Defendants Moore, Malone, and Jones kept Plaintiff on the ground for approximately 40 minutes, "handcuffed with his face down on the ground." (Id. at ¶ 16.)
Plaintiff alleges Defendants Moore, Malone and Jones then entered 428 Arbor Street without a warrant, "tore the house apart," and "completely destroyed much of what was in the house." (Id. at ¶ 17.) According to Plaintiff, these Defendants took $850 in cash from Plaintiff "but only turned in $340 of that amount." (Id. at ¶ 18.) An unidentified officer arrived at the scene and " when he saw what was going to [sic] he got back in his police car, and said: 'I am not doing this.'" (Id. at ¶ 19.)
Plaintiff claims that, although he did not have any drugs on him at the time, he was taken to jail and booked on drug charges on October 2, 2012. (Id. at ¶ 20-21.) He asserts he was not able to make bond and get out of jail until December 7, 2012. (Id. at ¶ 22.) Plaintiff claims that, upon advice of appointed counsel, he "pleaded guilty on January 2013 to avoid further charges being fraudulently added and/or the possibility of maximum sentencing." (Id. at ¶ 23.) He was sentenced to a four year term of incarceration and "was in the prison facilities at Lorain, Richland, and Trumbull for over three years." (Id. at ¶ 24-25.) After serving his sentence, Plaintiff was transferred to a halfway house, where he stayed until August 12, 2016. (Id. at ¶ 26-27.) He was "also required to meet his Probation Officers every night for three years at the State Building in Cleveland, Ohio." (Id. at ¶ 28.) Plaintiff claims his conviction and sentence wassubsequently vacated.3 (Id.)
The Complaint then sets forth "verbatim citations" to what appears to be portions of (1) an unidentified newspaper article regarding Defendants Moore, Malone, and James; and (2) a federal indictment against some of these Defendants in United District Court for the Northern District of Ohio. Taken together, these "citations" appear to allege that Defendants Moore, Malone and Jones were charged in federal court on conspiracy and other charges relating to illegal actions taken while these Defendants were employed as City of East Cleveland police officers, including the falsification of police reports and making false statements in search warrant affidavits.4 (Id. at pp. 12-17.) Plaintiff alleges Defendants Moore, Malone, and Jones"provided prosecutors with fabricated evidence which allowed the State, unfortunately, to charge Mr. Derrico with [trafficking and drug possession charges], the conviction of which were subsequently dropped by the State of Ohio." (Id. at ¶ 36.)
The Complaint asserts numerous violations of Plaintiff's civil rights pursuant to 42 U.S.C. § 1983 based on the Fourth, Fifth, Eighth, and Fourteenth Amendments, including (1) malicious prosecution; (2) "concerted unlawful and malicious subsequent arrests and charges;" (3) "concerted unlawful and malicious...
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