Derrico v. Moore
| Decision Date | 25 April 2019 |
| Docket Number | CASE NO: 1:17CV866 |
| Court | U.S. District Court — Northern District of Ohio |
| Parties | WALTER DERRICO, Plaintiff, v. TORRIS MOORE, et al., Defendants. |
MEMORANDUM OPINION & ORDER
This case is before the Court upon consent entered June 30, 2017. (Doc. No. 12.) Currently pending are the following: (1) Defendant City of East Cleveland's Motion for Summary Judgment (Doc. No. 54); (2) Defendant City of East Cleveland Police Department's Motion to Dismiss Party (Doc. No. 55); (3) Defendant City of East Cleveland's "Motion for Leave to Amend Motion for Summary Judgment or, in the alternative, Motion to grant Summary Judgment sua sponte," (Doc. No. 59); and (4) Plaintiff Walter Derrico's Motion for Partial Summary Judgment (Doc. No. 56).
For the following reasons, Defendant City of East Cleveland Police Department's Motion to Dismiss Party (Doc. No. 55) is GRANTED. Defendant City of East Cleveland's "Motion for Leave to Amend Motion for Summary Judgment or, in the alternative, Motion to grant Summary Judgment sua sponte," (Doc. No. 59) is DENIED. Plaintiff Walter Derrico's Motion for Partial Summary Judgment (Doc. No. 56) is DENIED and Defendant City of East Cleveland's Motion for Summary Judgment (Doc. No. 54) is GRANTED IN PART and DENIED IN PART.
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. (Id.) 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 7, 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.) Before the Court could rule on these motions, however, Plaintiff and the City of East Cleveland Defendants filed a Joint Motion to Stay. (Doc. No. 21.) In themotion, the parties explained that Plaintiff had agreed to pursue relief before the Ohio Court of Claims for his claims for wrongful imprisonment. (Id.)
On December 7, 2017, the Court issued an Order granting the parties' request for a stay. (Doc. No. 23.) The stay was granted on the condition, however, that Plaintiff (1) initiate proceedings in state court within thirty (30) days of the 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 was 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 notified the Court that the Cuyahoga County Court of Common Pleas had granted judgment on the pleadings to the State of Ohio and dismissed Plaintiff's action with prejudice.2 (Doc. No. 28.) Plaintiff maintained that, "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," which the City of East Cleveland Defendants opposed. (Doc. Nos. 29, 30.) On July 26, 2018, the Court issued a Memorandum Opinion & Order granting Plaintiff's Motion. (Doc. No. 31.) A CMC was thereafter held on August 16, 2018, at which time new discovery and dispositive motions deadlines were set. (Doc. No. 36.)
On February 11, 2019, Defendant City of East Cleveland filed a Motion for Summary Judgment with respect to all of Plaintiff's claims.3 (Doc. No. 54.) Several days later, Defendant City of East Cleveland Police Department filed a Motion to Dismiss Party. (Doc. No. 55.) Subsequently, on March 12, 2019, the City of East Cleveland Defendants filed a "Motion for Leave to Amend Motion for Summary Judgment or, in the Alternative, Motion to Grant Summary Judgment Sua Sponte." (Doc. No. 59.) Plaintiff opposed Defendants' Motion for Leave (Doc. No. 61) and filed a brief in opposition to the Defendants' Motion for Summary Judgment (Doc. No. 60). On March 26, 2019, the City of East Cleveland Defendants filed a Reply Brief in Support of their Motion for Summary Judgment. (Doc. No. 62.)
Meanwhile, on February 15, 2019, Plaintiff filed a Motion for Partial Summary Judgment. (Doc. No. 56.) The City of East Cleveland Defendants filed a Brief in Opposition on February 20, 2019. (Doc. No. 57.) On March 8, 2019, Plaintiff filed a Motion for Leave to file Reply Brief instanter. (Doc. No. 58.) That motion was granted on April 1, 2019. Plaintiff thereafter filed his Reply Brief on April 1, 2019. (Doc. No. 63.)
As noted above, Defendants Moore, Malone, and Jones (hereinafter "the IndividualDefendants") have not entered an appearance in this case and have not responded to Plaintiff's Motion for Partial Summary Judgment.
At the outset, the Court notes the facts underlying this matter are not particularly well developed. The only evidence cited by Plaintiff in support of his Motion for Partial Summary Judgment is (1) a two and a half page Affidavit signed by Plaintiff on February 5, 2019; (2) copies of the Information and Indictment filed in the federal criminal cases against Defendants Moore, Malone, and Jones; and (3) a copy of a motion filed by the State of Ohio in Plaintiff's underlying state court criminal case to vacate his conviction and sentence. (Doc. No. 56-1.) The City of East Cleveland Defendants cite no evidence in any of their briefing before this Court and, as noted above, the Individual Defendants have not entered an appearance in this case. None of the parties in this action cite any deposition testimony or written discovery. That being said, the following facts are undisputed.
On October 2, 2012, Plaintiff was standing outside a residence located at 428 Arbor Street in Cleveland, Ohio. (Doc. No. 56-1 at ¶ 2.) His mother and one year old daughter were in the house. (Id.) An unmarked car stopped in front of the house. (Id. at ¶ 3.) Defendants Moore, Malone, and Jones (who were then City of East Cleveland Police Officers) got out of the car and approached Plaintiff. (Id.)
The Officers "threw [him] to the ground and said 'we heard you got some dope' and 'where is the dope?'" (Id. at ¶ 4.) Plaintiff states he did not have any illegal drugs. (Id.) He was nonetheless handcuffed and kept on the ground, face down, for forty minutes. (Id.) While he was on the ground, Officers Malone, Moore, and Jones entered the house located 428 ArborStreet. (Id.) According to Plaintiff, the Officers did not have either a search or arrest warrant. (Id.) At some point while Plaintiff was on the ground, another City of East Cleveland Police Officer arrived on the scene. (Id. at ¶ 6.) The unidentified Officer exited his police car, "observed what was happening, then said 'I am not doing this' and got back in his car and drove away." (Id.)
Officers Malone, Moore and Jones proceeded to ransack the house and destroy some of its contents. (Id. at ¶ 5.) Plaintiff states the Officers took $850.00 in cash from the house, but only reported seizing $340.00. (Id.) Plaintiff was then transported to jail, where he was booked. (Id.) He states criminal charges were filed against him two weeks later, including charges of drug trafficking, possession of drugs, and possessing criminal tools.4 (Id.)
Plaintiff remained in jail until December 7, 2012, when he was able to make bail. (Id. at ¶ 7.) He states that, "[i]n January 2013, although I knew I was innocent, knew that the charges had been fabricated, and knew that my rights had been violated, I entered a plea of guilty" on the advice of his lawyer and "out of fear that Officers Malone, Moore, and Jones would bring more false charges against me." (Id.)
In February 2013, Plaintiff was sentenced to serve four years in prison. (Id. at ¶ 8.) He served more than three years at various prison facilities, after which he was transferred to a half-way house in Cleveland where he served the remainder of his prison term. (Id.) Plaintiff was released from the half-way house on August 12, 2016 and placed on probation for three years.(Id.)
Meanwhile, Defendants Moore, Malone and Jones were criminally charged in this Court on various charges in 2015.5 Specifically, in United States v. Moore, Case No. 1:15CR363 (N.D. Ohio), Defendant Moore was indicted on the following charges: (1) conspiracy against rights, in violation of 18 U.S.C. § 241; (2) Hobbs Act conspiracy in violation of 18 U.S.C. § 1951; (3) two counts of theft concerning programs receiving federal funds, in violation of 18...
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