Macko v. Byron, C77-1158.

• Decision Date: 01 October 1982
• Docket Number: No. C77-1158.,C77-1158.
• Citation: 555 F. Supp. 470
• Parties: Joanne MACKO, et al., Plaintiffs, v. Barry M. BYRON, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

555 F. Supp. 470

Joanne MACKO, et al., Plaintiffs, v.Barry M. BYRON, et al., Defendants.

No. C77-1158.

United States District Court, N.D. Ohio, E.D.

October 1, 1982.

Herbert L. Braverman, Beachwood, Ohio, for Joanne Macko.

Daniel J. Ryan and Charles R. Laurie, Jr., Cleveland, Ohio, for Helen Merteneit and John Szabo.

Abraham Cantor, Byron & Cantor, Willoughby, Ohio, for all defendants.

MEMORANDUM and ORDER

BEN C. GREEN, Senior District Judge:

In this civil rights action, plaintiffsJoanne Macko, Helen Merteneit, and John Szabo seek damages from the City of Willoughby Hills and numerous city officials.Plaintiffs claim they were unjustly charged with criminal offenses as punishment for their exercise of First Amendment rights.

Defendants in the action are the City, Mayor Melvin G. Schaefer, Clerk Marilyn Monzula, Law Director Barry M. Byron, and present or former Councilmen Sabby J. DeFrank, Robert Moorehead, Morton O'Ryan, Lawrence O'Donnell, and George Kraincic.

All defendants have moved for dismissal of the action or for summary judgment.Numerous issues are raised.Plaintiffs have filed briefs opposing the motions.Reply and cross-reply briefs have been filed, and a supplementary motion for summary judgment was filed and briefed.The volume of paper generated by these motions exceeds six inches in depth.

This Court has jurisdiction to hear and decide this matter pursuant to 28 U.S.C. § 1343and42 U.S.C. § 1983.

At the outset, it must be noted that summary judgment is proper only where it appears from the record that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.Rule 56(c),Federal Rules of Civil Procedure.Further, when considering a motion for summary judgment, the Court must construe all facts and inferences drawn from the facts in a light most favorable to the non-moving party, in this casethe plaintiffs.Adickes v. Kress & Co.,398 U.S. 144, 147, 90 S.Ct. 1598, 1602, 26 L.Ed.2d 142(1979);Smith v. Hudson,600 F.2d 60(C.A. 6, 1979).

A.FACTS

Viewed in that light, it appears the record¹ thus presents the following framework of material facts.Detailed factual matters will be found where they apply in the remainder of this memorandum.

At all times relevant to this action, plaintiffs were residents of Willoughby Hills, a suburb of Cleveland.In August 1976, plaintiffs, other citizens, and two city councilmen began a campaign to recall from office the mayor and the five other councilmen.Petitions toward that end were circulated, and numerous signatures were secured.

Believing the petitions to be valid in form and the signatures to be sufficient in number, plaintiffs filed them with the defendant Clerk on September 2, 1976.On September 13, relying on a number of grounds, the Clerk informed plaintiffs that the petitions were defective.

Plaintiffs then initiated a mandamus action in the Ohio Supreme Court, seeking to have the recall issue placed on the November 1976 ballot.In a brief opinion, State ex rel. Macko v. Monzula,48 Ohio St.2d 35, 356 N.E.2d 493(1976), the Ohio Supreme Court held that the form of the circulator's affidavit on the petitions was defective, and the recall issue never reached the voters.

On December 15, 1976, the Lake County Grand Jury indicted plaintiffs for various offenses related to the recall campaign.They were thereafter arrested, jailed, and required to post bond to secure their release.

Mrs. Macko was charged, in a five-count indictment, with one felony count of making a false statement in her circulator's affidavit.Apparently, it was that an individual who signed a petition she circulated was not a registered voter at the time he signed.The remaining four misdemeanor counts in the indictment related to signatures of non-registered signers.

Mrs. Merteneit was charged, in a one-count indictment, with signing the petitions twice.

Mr. Szabo was charged with three misdemeanor counts alleging that he miscounted the number of signatures on three of the petitions which he had circulated, and thus had entered the wrong number in his circulator's affidavit.²He was also charged with four felony counts of perjuring himself during a deposition taken in the mandamus proceedings before the Ohio Supreme Court.The precise nature of the alleged perjury is not clear from the record, but apparently had to do with the fact that the middle initial in his signature on some of the petitions appeared to have been written with a different pen than the rest of his signature.

At the time the plaintiffs were indicted, city officials knew of other individuals who were not involved in the recall campaign and who had committed acts similar to those allegedly committed by the plaintiffs herein.Such other individuals were not, however, charged with any criminal offense.

At the end of 1976, or approximately two weeks after plaintiffs were arrested, the county prosecuting attorney who had obtained the indictments completed his term and left office.The newly elected prosecutor declined to continue the prosecution, and all of the charges against the plaintiffs were eventually dismissed.³

This action was initiated against all defendants except the City on November 4, 1977.The City was named a new partydefendant when the second amended complaint was filed on May 21, 1981.

As originally brought, this action named as additional defendantsPaul H. Mitrovich, the prosecuting attorney who obtained the indictments, and Stephen J. Futterer, the assistant prosecutor who handled the cases under both Mitrovich and his successor in office.The original complaint also alleged a cause of action founded in 42 U.S.C. § 1985.

By order dated April 9, 1979, this Court entered summary judgment in favor of defendants and dismissed the complaint.Plaintiffs appealed that order, and on February 19, 1981, the Sixth Circuit Court of Appeals affirmed in part and vacated in part, 641 F.2d 447, in light of intervening United States Supreme Court authority.

B.THE FIRST COUNT OF THE COMPLAINT

The first count of the second amended complaint repeats a claim dismissed from the first complaint.It alleges that defendant Monzula unlawfully denied plaintiffs their First Amendment right to vote on the recall matter.Defendant Monzula has moved for summary judgment in her favor on this count, claiming that the decision of the Ohio Supreme Court in the mandamus action is res judicata to the claim.The Court agrees.

The first count of the second amended complaint is essentially the same claim against Monzula which this Court dismissed in 1979 on the res judicata grounds reargued here.That dismissal was affirmed by the Court of Appeals in its 1981 decision.No appeal was taken of the Court of Appeals' judgment, and it has become final.

Therefore, the first count of the second amended complaint is barred, not only by the doctrine of res judicata, but also by the law of this case.Defendant Monzula is entitled to judgment in her favor as a matter of law, and judgment is hereby entered dismissing the first count of the second amended complaint.

C.THE SECOND COUNT OF THE COMPLAINT

The second count of the second amended complaint alleges that all defendants conspired to punish plaintiffs for the exercise of their First Amendment rights, and that as a result, plaintiffs were unlawfully charged with criminal offenses.The defendants have advanced a number of legal theories in their motion to dismiss or for summary judgment.These theories will be dealt with seriatim.

1.Motion to Dismiss the City of Willoughby Hills

The defendant City of Willoughby Hills moves for summary judgment on the second count, asserting that the claim against it is barred by the statute of limitations.In opposition, plaintiffs question the appropriate limitations period to apply in this case.

There is no federally mandated statute of limitations for general civil rights actions brought pursuant to 42 U.S.C. § 1983.Federal courts thus apply the statute of limitations for the most comparable state law cause of action.Board of Regents v. Tomiano,446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440(1980);Wright v. Tennessee,628 F.2d 949(C.A. 6, 1980);Warner v. Perrino,585 F.2d 171(C.A. 6, 1978).The statute of limitations for § 1983 actions alleging constitutionally-impermissible prosecutions is the one-year period set by § 2305.11(A), Ohio Revised Code, for certain torts, including malicious prosecution.Kilgore v. Mansfield,679 F.2d 632(C.A. 6, 1982).

Since the plaintiffs' claims against the City were filed on May 21, 1981, substantially in excess of one year after the indictments against them were dismissed (see note 3, supra), their claims against the City are barred by time.The City's motion for summary judgment is therefore granted, and the complaint against the City is dismissed.

2.Motion to Dismiss for Lack of Specificity

The remaining individual defendants move to dismiss the entire complaint against them, claiming that it fails to state with sufficient specificity the factual basis for the civil rights claim.

The specific language at issue is contained in paragraphs 14 and 18 of the second amended complaint which read:

14.Each defendant acting under color of law and in active concert with all other defendants and pursuant to the city's policies and procedures did conspire to deprive and did deprive plaintiffs of the equal protection of the laws by maliciously, knowingly, and unlawfully giving incomplete and false information and preventing information to be provided to the grand jury and causing an indictment to be issued against plaintiffs by giving and not giving this information to the prosecuting attorney for Lake County and subsequently this directly caused secret indictments to be issued charging perjury and various violations of the Ohio laws relating to petitions.

18.Defendant's actions were perpetrated against plaintiffs to

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