Opinion
Civil Action 2:00-CV-1247
April 26, 2001
OPINION AND ORDER
This is a civil rights action in which plaintiff alleges that the defendant individual police officers subjected him to an unlawful arrest and excessive force and that the defendant city's policies caused the misconduct. Plaintiff asserts claims under 42 U.S.C. § 1983 and state law. The parties have consented to disposition by the Magistrate Judge. 28 U.S.C. § 636 (c). This matter is now before the court on defendants' motion to dismiss for failure to state a claim upon which relief can be granted. F.R.Civ. P. 12(b)(6).
When considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b) (6), the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Roth Steel Products v. Sharon Steel Corporation, 705 F.2d 134, 155 (6th Cir. 1983). Moreover, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also McClain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, (1980); Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983)
Because a motion under Rule 12(b)(6) is directed solely to the complaint itself, Roth Steel Products, 705 F.2d at 155, the Court must focus on whether the claimant is entitled to offer evidence to support the claims, rather than whether the plaintiff will ultimately prevail. Scheuer v. Rhodes, 416 U.S. at 236. A federal court cannot consider extrinsic evidence in determining whether a complaint states a claim upon which relief can be granted. Roth Steel, 705 F.2d at 155. The Court will grant a motion to dismiss under Rule 12(b)(6) if the complaint is without merit because of the absence of either facts or law to support a claim of the type made, or if, on the face of the complaint, there appears an insurmountable bar to relief. See generally Rauch v. Day Night Manufacturing Corp., 576 F.2d 697, 702 (6th Cir. 1978).
I. TIMELINESS OF CLAIMS
Defendants contend, first, that plaintiff's claims are untimely. In Ohio, claims under 42 U.S.C. § 1983 for deprivation of one's constitutional rights must be filed within two years of the time the cause of action arose. Browning v. Pendleton, 872 F.2d 773 (6th Cir. 1989). Plaintiff's claims in this action arise out of his October 17, 1998 arrest. Complaint, ¶ 1. Although the complaint was not formally filed until October 25, 2000, it was submitted for filing, along with an application for leave to proceed in forma pauperis, on October 17, 2000. A pauper's case is filed on the date that the successful application for leave to proceed in forma pauperis is submitted to the Court, rather than on the date that the complaint is actually filed upon grant of the application. Mohler v. Miller, 235 F.2d 153 (6th Cir. 1956); Walker v. City of Lakewood, 742 F. Supp. 429, 432 (N.D.Ohio 1990). Because plaintiff's application for leave to proceed in forma pauperis was submitted within the limitations period, plaintiff's claims under § 1983 are not untimely.
In addition to his claims under § 1983, plaintiff has also asserted supplemental state law claims of assault and battery, intentional infliction of emotional distress, false arrest, abuse of process, false imprisonment, negligence and respondeat superior. Under Ohio law, claims for assault and battery must be brought within one (1) year, O.R.C. § 2305.111, as must claims of false arrest and false imprisonment, O.R.C. § 2305.11(A). Moreover, claims of intentional infliction of emotional distress that are based, as is plaintiff's claim, on alleged conduct that would constitute an assault and battery, must also be brought within one (1) year. Manin v. Diloreti, 94 Ohio App.3d 777 (Summit Cy. Ct. App. 1994). Neither plaintiff's complaint nor his application for leave to proceed in forma pauperis was submitted for filing within that period of time; accordingly, these state law claims are untimely. Moreover, the fact that 28 U.S.C. § 1367 confers upon this Court the jurisdiction to entertain plaintiff's state law claims does not mean that those claims are insulated from the operation of the applicable statutes of limitations.
Defendants also argue that plaintiff's state law claims of negligence and respondeat superior, which are governed by the two (2) year statute of limitations established by O.R.C. § 2744.04, are untimely. For the reasons stated supra in connection with plaintiff's federal claims under § 1983, defendants' argument in this regard is without merit.
II. ABUSE OF PROCESS CLAIM
In Ohio, the tort of abuse of process consists of three (3) essential elements:
(1) that a legal proceeding has been set in motion in proper form and with probable cause; (2) that the proceeding has been perverted to attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct damage has resulted from the wrongful use of process.Yaklevich v. Kemp, Schaeffer Rowe Co., 68 Ohio St.3d 294 (1994), Syllabus 1. The complaint fails to allege that the proceedings against him were instituted with probable cause; indeed, the complaint repeatedly alleges that plaintiff's arrest was without "lawful authority" or "probable cause." See, e.g., Complaint ¶¶ 34, 36, 39, 46, 49, 61, 70. The Court therefore concludes that the complaint fails to state a colorable claim of abuse of process.
III. IMMUNITY UNDER STATE LAW
Counts XII and XIII of the complaint seek compensatory and punitive damages against the individual police officers, alleging negligence on their part in connection with their alleged use of force on and arrest of plaintiff. Employees of Ohio's political subdivisions who are engaged in such governmental functions as police services are immune from liability for personal injury or property damage unless, inter alia, the employee's "acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner. . . ." O.R.C. § 2744.03(A)(6)(b). Mere negligence, such as that alleged in Counts XII and XIII of the complaint, is not sufficient to divest police officers of the immunity conferred on them by state law. Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 355 (1994); Linley v. DeMoss, 83 Ohio App.3d 594, 599 (Franklin Cy. Ct. App. 1992). Accordingly, Counts XII and XIII of the complaint fail to state a claim for relief under Ohio law.
As plaintiff properly notes, the immunity conferred by Ohio law with respect to claims under Ohio law is inapplicable to claims under federal law.
IV. CONCLUSION
The Court concludes that defendants' motion to dismiss is in part meritorious and in part without merit. The motion to dismiss is GRANTED as it relates to plaintiff's state law claims of assault and battery, intentional infliction of emotional distress, false arrest and false imprisonment, abuse of process, and negligence on the part of defendants Cook, Davis, Roberts and Bell. These claims are DISMISSED. The motion to dismiss is DENIED as it relates to plaintiff's claims against all defendants under 42 U.S.C. § 1983 and plaintiff's state law claims of negligence and respondeat superior against the defendant City of Newark. These claims may proceed.