Verhovec v. City of Trotwood, Case No. 3:14-cv-363

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Parties: EDWARD VERHOVEC, Plaintiff, v. CITY OF TROTWOOD, OHIO, et al., Defendants.
• Docket Number: Case No. 3:14-cv-363
• Decision Date: 21 April 2015

EDWARD VERHOVEC, Plaintiff,
v.
CITY OF TROTWOOD, OHIO, et al., Defendants.

Case No. 3:14-cv-363

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

April 21, 2015

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS ON DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

This case is before the Court on Motion for Judgment on the Pleadings under Fed. R. Civ. P. 12(c) by Defendants the City of Trotwood, Ohio, City Manager Michael Lucking, Law Director Stephen M. McHugh, and Assistant/Acting Law Director Amelia N. Blankenship (Doc. No. 48). The Motion was filed and served on February 9, 2015, which made Plaintiff's response due under S. D. Ohio Civ. R. 7.2 on March 5, 2015. Third-Party Defendant William Walker, without entering an appearance on behalf of Plaintiff, filed both a Memorandum in Opposition and a Motion for Stay on Plaintiff's behalf (Doc. Nos. 56 and 57). The Magistrate Judge struck the Memorandum in Opposition because it was filed without any authorization by Plaintiff or ratification after filing and Plaintiff never opposed the Motion to Strike.

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However, on March 26, 2015, the Magistrate Judge ordered Plaintiff to notify the Court whether Attorney Cushion would continue to represent Plaintiff, whether another attorney would substitute, or whether Verhovec would proceed pro se (Decision and Order, Doc. No. 66). Verhovec did not respond directly to that order, but filed pro se Objections to the Magistrate Judge's Second Supplemental Opinion of Motion for Prejudgment Possession (Doc. No. 68). However, Plaintiff has still not filed any opposition to the Motion for Judgment on the Pleadings.

Plaintiff's Complaint

Plaintiff Verhovec brought this action under 42 U.S.C. § 1983 to complain that Defendants had conspired to deprive him of meaningful access to the Ohio courts and to retaliate against him for exercising his First Amendment rights (Complaint, Doc. No. 1, caption and ¶ 16, PageID 1 & 4).¹ Defendants Lucking, McHugh, and Blankenship are sued in both their official and individual capacities. Id. at PageID 3, ¶¶ 5, 7, 9.) The City of Trotwood is asserted to be liable because Verhovec avers that Lucking and McHugh are final policy-making officials of the City and to have committed the acts harming Verhovec pursuant to a policy they adopted. Id. at PageID 4, ¶¶ 13, 14.

The Complaint alleges that on June 15, 2011, Verhovec made a public records request of the City of Trotwood through Lucking by way of a letter, a copy of which is attached to the

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Complaint as Exhibit A (PageID 15). The request was pursuant to the Ohio Public Records law, Ohio Revised Code § 149.43 and sought records "pertaining to the City's traffic photo-enforcement program." Id. at PageID 5, ¶ 19. Unsatisfied with the City's response, Verhovec two weeks later on June 29, 2011, filed an action in the Montgomery County Common Pleas Court combining a mandamus claim under Ohio Revised Code § 149.43(C)(1) and a "statutory forfeiture action for the unlawful disposal of public records" under Ohio Revised Code § 149.351. Id. at PageID 5 ¶ 22, and attached Exhibit E, PageID 31-36 (the "Public Records Action"). The initial document contains the purported signature of Third-Party Defendant Walker which has apparently been struck through by Verhovec who then signed the verified complaint pro se. Id. at PageID 36.

In response to the Public Records Action complaint, on July 26, 2011, Trotwood and Lucking filed an Answer and Counterclaim, a copy of which is attached to the Complaint as Exhibit F (PageID 40-49). Verhovec reads the Counterclaim as pleading claims against him for vexatious conduct under Ohio Revised Code § 2323.52(A), frivolous conduct under Ohio Revised Code § 2323.51, and was a pretext to create liability under Ohio Revised Code § 149.351 (Complaint, Doc. No. 1, PageID 6, ¶¶ 24-27). A First Amended Counterclaim was filed in the Public Records Action on June 3, 2013. Id. at ¶¶ 34-35.

Verhovec's First Claim for Relief asserts:

In retribution for VERHOVEC's petition for judicial relief, Defendants infringed upon VERHOVEC's fundamental free speech rights by filing a counterclaim against VERHOVEC that was unsupported by fact or law and which attempted to apply a statute in ex post facto fashion against VERHOVEC.

Id. at PageID 8, ¶ 42. The method by which the original Counterclaim is said to have harmed Verhovec is that Defendants kept it pending for 679 days until the First Amended Counterclaim

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was filed, thereby making the Public Records Action more expensive. Id. at PageID 8-9, ¶ 44-45. These actions by Defendants are alleged to have violated Verhovec's rights to free speech, petition, and access. Id. at PageID 9-10, ¶ 50.

Verhovec's Second Claim for Relief asserts claims of spoliation of evidence and witness intimidation, the evidence for which is a conversation among Defendants McHugh and Blankenship and "unknown employees, representatives, and/or agents" of the City during a March 23, 2012, meeting of those persons in a conference room at the Montgomery County Common Pleas Court during a conference set by the Common Pleas Magistrate presiding over the Public Records Action, David Fuchsman (Complaint, Doc. No. 1, , PageID 10, ¶¶ 52-54).

Plaintiff avers:

VERHOVEC learned of Defendants MCHUGH, BLANKENSHIP and the UNKNOWN EMPLOYEES, REPRRESENTATIVES AND/OR AGENTS of the City acts of spoliation and intimidation when he reviewed a recording of the oral argument conference after VERHOVEC'S state cause of action was dismissed

VERHOVEC could have resisted a dismissal of his state cause of action if he had known of the spoliation and intimidation by Defendants MCHUGH, BLANKENSHIP and the UNKNOWN EMPLOYEES, REPRRESENTATIVES AND/OR AGENTS of the City.

Id. at PageID 10-11, ¶¶ 55-56.

Verhovec's Third Claim for Relief is captioned "Conspiracy" but contains no conspiracy allegations. Verhovec seeks $2 million in compensatory damages, $7 million in punitive damages, and attorney fees which "to date" were alleged to amount to $200,000. Id. at PageID 12-13.

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Defendants' Motion: First Claim for Relief

Statute of Limitations

Defendants first seek judgment on the basis that the First Claim for Relief is barred by the statute of limitations (Motion, Doc. No. 48, PageID 351-52).

In all constitutional tort actions, the court borrows the statute of limitations for personal torts from the State where the claim arose. Hardin v. Straub, 490 U.S. 536 (1989). The statute of limitations under Ohio law for actions brought pursuant to 42 U.S.C. § 1983 is two years. Ohio Revised Code § 2305.10. Nadra v. Mbah, 119 Ohio St. 3d 305 (2008); Banks v. City of Whitehall, 344 F.3d 550, 551 (6^th Cir. 2003), citing Browning v. Pendleton, 869 F.2d 989 (6^th Cir. 1989)(en banc). In Ohio, the statute of limitations for a § 1983 claim is two years and runs from "when the plaintiff knows or has reason to know of the injury which is the basis" of the claim. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 856 (6^th Cir. 2003).

Verhovec knew or had reason to know of the filing of the original Counterclaim in the Public Record Action shortly after it was filed on July 26, 2011, because it was mailed to him on that date (see Certificate of Service, PageID 49). This action was not filed until March 21, 2014 (Doc. No. 1). Therefore the First Claim for Relief should be dismissed with prejudice as barred by the statute of limitations.

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Res Judicata

Defendants also seek dismissal of the First Claim for Relief on the basis of res judicata, asserting that the claim could have been raised in the Public Records Action but was not and is therefore barred by the final judgment in that action (Motion, Doc. No. 48, PageID 352-57).

Federal courts in subsequent litigation are obliged to give prior state court judgments the same effect those judgments would be given in the courts of the rendering State. 28 U.S.C. §1738; Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985); Migra v. Warren City School District Board of Edn., 465 U.S. 75 (1984); Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982); Trafalgar Corp. v. Miami County Bd. Of Comm'rs, 519 F.3d 285 (6^th Cir. 2008), citing Hamilton's Bogarts, Inc. v. State of Michigan, 501 F.3d 644, 650 (6^th Cir. 2007); Gutierrez v. Lynch, 826 F.2d 1534 (6^th Cir. 1987); McNasby v. Crown Cork and Seal Co., Inc., 888 F.2d 270 (3^rd Cir. 1989).

Under Ohio law:

A valid, final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action.

Grava v. Parkman Twp, 73 Ohio St. 3d 379 (1995), syllabus. (Paragraph two of the syllabus of Norwood v. MacDonald, 142 Ohio St. 299 (1943), overruled; paragraph two of the syllabus of Whitehead v. Gen. Tel. Co, 20 Ohio St. 2d 108 (1969), overruled to the extent inconsistent herewith; paragraph one of the syllabus of Norwood, supra, and paragraph one of the syllabus of

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Whitehead, supra, modified; 1 Restatement of the Law 2d, Judgments (1982), §§ 24-25, approved and adopted.)

This Court has recognized that the relevant Ohio claim preclusion doctrine is set forth in Grava v. Parkman, supra:

In Ohio, a party seeking to invoke the doctrine of res judicata must prove four elements: (1) a prior final, valid decision on the merits by a court of competent jurisdiction; (2) a second action involving the same parties or their privies, as the first; (3) a second action raising claims that were or could have been litigated in the first action; and (4) a second action arising out of the transaction or occurrence that was the subject matter of the previous action.

Ater v. Follrod, 238 F. Supp. 2d 928, 937 (S.D. Ohio 2002)(Holschuh, J.), quoting In re Fordu, 201 F.3d 693, 703-04 (6^th Cir. 1999)(construing Ohio law).

The Ohio courts have concurrent jurisdiction with the federal courts over claims arising...