IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

George Collins, :

Plaintiff, :

v. : Case No. 2:11-CV-708

City of Columbus, et al., : Magistrate Judge Kemp

Defendants. :

OPINION AND ORDER

This matter is before the Court, with consent of the parties

pursuant to 28 U.S.C. §636(c), for consideration of the

Defendants’ Motion for Summary Judgment, Doc. No. 12. In that

motion, the defendants assert that Mr. Collins’ claim made under

42 U.S.C. §1983 is barred by the applicable two-year statute of

limitations. For the reasons that follow, the motion will be

denied. 

I.

Plaintiff George Collins filed this action pursuant to 42

U.S.C. §1983 against the City of Columbus, Ohio, Police Chief

Walter Distelzweig, and Detective Craig Bowen. Mr. Collins

claims that when the City sold some property that had been taken

from him pursuant to a search warrant, he was deprived of due

process of law in violation of the Fourteenth Amendment to the

United States Constitution. Mr. Collins also asserts claims

under Ohio law for unlawful conversion, abuse of process and

intentional infliction of emotional distress. 

The following facts, all of which are relevant to the

statute of limitations issue, appear to be undisputed. They are

taken largely from the exhibits filed by the parties in

connection with the summary judgment motion.

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On September 17, 2007, Defendant Bowen, a Burglary Detective

with the Columbus Division of Police, executed a search warrant

on certain storage units owned by Mr. Collins as part of an

investigation involving the theft of landscape equipment. At the

time of the investigation, Mr. Collins owned his own lawn care

business. Detective Bowen seized seventeen mowers and small

vehicles and twenty-two items of landscape equipment from the

storage units. The next day, he delivered the mowers and small

vehicles to the Columbus Police Impound Lot and he delivered the

landscape equipment to the Columbus Police Property Room. 

Apparently, some of this equipment had been reported stolen. 

Between September 19 and 28, 2007, fourteen of the mowers and

small vehicles and nineteen items of landscape equipment were

returned to their owners. Those items are not at issue here. 

On December 11, 2007, a Franklin County grand jury indicted

Mr. Collins on nine counts of receiving stolen property. On

September 15, 2008, Mr. Collins pleaded guilty to certain of

these charges. At that time, the City still had possession of

some of these items of equipment that had been taken pursuant to

the search warrant but not claimed by anyone (except, of course,

Mr. Collins).

Attorney Dennis Pusateri represented Mr. Collins in

connection with the state court criminal proceedings. Mr.

Pusateri claims to have had discussions with Assistant Prosecutor

Jeff Blake regarding returning the remaining seized items to Mr.

Collins. According to Mr. Pusateri, Mr. Blake said that no

property could be returned unless a court order were obtained. 

Mr. Pusateri made an oral motion at Mr. Collins’ sentencing

hearing for the return of these items which Mr. Collins owned. 

That oral motion was not granted. Mr. Pusateri then filed a

written motion on December 8, 2008. When that motion was not

ruled on, Mr. Pusateri made a request for ruling on the motion on

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June 24, 2009. During this same time frame, Mr. Collins was

given a three-year sentence on the charges to which he pleaded

guilty. 

All the while, and apparently without having given notice to

either Mr. Collins or Mr. Pusateri, Detective Bowen directed that

the remaining three mowers and small vehicles be disposed of by

the Columbus Police Impound Lot. They were sold at auction in

March and May, 2008. The three landscape items were sold at a

public auction on June 27, 2009, pursuant to a May 15, 2009 Order

by the Franklin County Municipal Court authorizing such sale. 

Still having had no ruling on the motions he filed, in early

summer, 2010, Mr. Pusateri contacted Mr. Blake regarding the

return of Mr. Collins’ landscape items. Mr. Blake told Mr.

Pusateri that he should contact the Columbus City Attorney’s

office regarding the return of property. He did so and on

August 4, 2010, was told by Assistant City Attorney Jeffrey

Furbee that the Columbus Police Department “no longer has any of

this property.” 

Mr. Collins filed this case on August 5, 2011. In their

Motion for Summary Judgment, Defendants argue that Mr. Collins’

§1983 claim is barred by the two-year statute of limitations

found in Ohio Rev. Code §2305.10 because his cause of action

accrued either when the property was seized, on September 17,

2007, or when the last items were sold at auction, on June 27,

2009. Mr. Collins, on the other hand, argues that his federal

cause of action accrued no earlier than August 4, 2010, when Mr.

Pusateri first learned that the property was no longer in the

possession of the Columbus Police Department. In the

alternative, Mr. Collins argues that contested issues of fact

preclude summary judgment on the statute of limitations issue. 

 II.

Summary judgment is not a substitute for a trial when facts

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material to the Court's ultimate resolution of the case are in

dispute. It may be rendered only when appropriate evidentiary

materials, as described in Fed. R. Civ. P. 56(c), demonstrate the

absence of a material factual dispute and the moving party is

entitled to judgment as a matter of law. Poller v. Columbia

Broadcasting Systems, Inc., 368 U.S. 464 (1962). The moving

party bears the burden of demonstrating that no material facts

are in dispute, and the evidence submitted must be viewed in the

light most favorable to the nonmoving party. Adickes v. S.H.

Kress & Co., 398 U.S. 144 (1970). Additionally, the Court must

draw all reasonable inferences from that evidence in favor of the

nonmoving party. United States v. Diebold, Inc., 369 U.S. 654

(1962). The nonmoving party does have the burden, however, after

completion of sufficient discovery, to submit evidence in support

of any material element of a claim or defense on which that party

would bear the burden of proof at trial, even if the moving party

has not submitted evidence to negate the existence of that

material fact. See Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Anderson v. Liberty Lobby,Inc., 477 U.S. 242 (1986). Of

course, since "a party seeking summary judgment ... bears the

initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of [the

record] which it believes demonstrate the absence of a genuine

issue of material fact," Celotex, 477 U.S. at 323, the

responding party is only required to respond to those issues

clearly identified by the moving party as being subject to the

motion. It is with these standards in mind that the instant

motion must be decided.

III.

A. The Date of Accrual of the Claim

The parties agree that Mr. Collins’ §1983 claim is subject

to Ohio’s two year statute of limitations for claims of bodily

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injury, R.C. § 2305.10. See, e.g., LRL Properties v. Portage

Metro Housing Authority, 55 F.3d 1097 (6th Cir. 1995). Although

state law governs the limitations period for actions filed

pursuant to §1983, federal law governs when the limitations

period begins to run. Wallace v. Kato, 549 U.S. 384, 388 (2007). 

The limitations period begins to run when the cause of action

accrues; that is, when the Plaintiff “knows or has reason to know

of his injury when he should have discovered it through the

exercise of reasonable diligence.” Roberson v. Tennessee, 399

F.2d 792, 794 (6th Cir. 2005), quoting Sevier v. Turner, 742 F.2d

262, 273 (6th Cir. 1984). In determining when a plaintiff knows

or has reason to know of the injury, courts use a “common-sense”

approach, considering “what event should have alerted the typical

lay person to protect his or her rights.” Id., quoting Hughes v.

Vanderbilt Univ., 215 F.3d 543, 548 (6th Cir. 2000). This is

known as the “discovery rule.” Id.

Everyone apparently agrees that Mr. Collins was aware of the

initial seizure of his property on September 17, 2007. According

to the Defendants, a reasonable person would have known at that

time that the City might dispose of any property which belonged

to Mr. Collins rather than return it to him. Thus, Defendants

argue that the statute of limitations began to run on September

17, 2007. In contrast, Mr. Collins argues that, since his claims

are based upon “the unlawful disposition, not the initial

seizure[ ] of his property . . . the event that should have

alerted him to protect his rights was when [Mr.] Pusateri first

was notified that Defendants had disposed of his property on

August 4, 2010.” See Plaintiff’s Memorandum in Opposition, Doc.

No. 14, at 5. 

There is some appeal to Mr. Collins’ argument. He

apparently does not take issue with the legality of the seizure

of either the stolen property or his own property, and that

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seizure was authorized by a search warrant. He may have

believed, reasonably, that once the City sorted out the issue of

who owned each item of property, and after his criminal case was

disposed of, the City would not either keep his property or sell

it to others. And from the facts recited above, he was

apparently led to believe that the City did not intend

permanently to deprive him of his property, but would, upon the

issuance of the correct court order, give it back. Of course,

that is not what happened, and he did file suit within two years

after finding out about the City’s actions. Nevertheless,

the case law may not appear to support Mr. Collins’ argument on

this point. Rather, the cases suggest that it is not the

ultimate disposition of a person’s property which should have

alerted the person of the invasion of that person’s property

rights, but the initial seizure of the property - which, in this

case, happened well more than two years before Mr. Collins filed

suit. As the Court of Appeals for the Third Circuit explained,

“the discovery rule hinges upon actual, as opposed to legal,

injury,” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d

1380, 1392 n.9 (3rd Cir. 1994), and it can plausibly be argued

that what Mr. Collins found out belatedly was that he had been

legally injured, while he knew all along that the City had seized

his property and had not returned it. 

This case strongly resembles Stanley v. Malone, 2009 WL

485491 (S.D. Ohio February 26, 2009) (Holschuh, J.). There,

Plaintiffs asserted §1983 claims based upon the alleged illegal

seizure and retention of property. In that case, a warrant had

been issued allowing police officers to seize two items (a 1967

Pontiac LeMans and a tailgate for a pickup truck). Those items

were not found, but the officers seized a number of other items

for which they had no warrant, and delayed returning the items,

during which time they were damaged. The property was eventually

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returned after a state court decided that none of it was

contraband. The lawsuit was filed within two years of the date

of the court order, but more than two years after the initial

seizure.

Judge Holschuh dismissed the case on statute of limitations

grounds. In doing so, he concluded that the Stanley plaintiffs’

actual injury occurred on the date of the allegedly illegal

search and seizure – not on the date that the state court

suppressed evidence of the search. Id., 2009 WL 485491 at *5. 

See also Filer v. Polston, 2012 WL 1694588 (S.D. Ohio May 15,

2012) (Newman, M.J.)(holding that a cause of action for an

illegal search and seizure accrues on the date of the search, and

not on a later date when a state court grants a motion to

suppress on grounds that the search was illegal). 

One might argue that there are subtle differences in these

cases which justify reaching a different result here. However,

if, in fact, the seizure of Mr. Collins’ own equipment was not

authorized by the warrant, this case is just like Stanley, and

Mr. Collins would have known (or could reasonably have learned)

that he had been deprived of his own property in violation of the

search warrant the day the search occurred. On the other hand,

if the warrant actually authorized the seizure of Mr. Collins’

own equipment, there is a good chance that the warrant was not

supported by probable cause, and that would make this case

exactly like Filer v. Polston. There is, of course, the third

possibility, which is that the warrant actually but mistakenly

described Mr. Collins’ own property as having been stolen, or

being evidence of a crime, and that it did so based on a proper

showing of probable cause; after all, not every probable cause

affidavit turns out to be true. The Court does not have the

warrant in front of it, however, and there are not enough facts

from which the Court could find that a reasonable person, faced

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with this warrant and armed with what Mr. Collins knew about

which pieces of equipment were his, would still be unaware that

he had suffered an injury to his property on the date of the

search. Based on the facts which appear from the record, it

seems likely that his claim accrued on September 17, 2007,

although because the Court concludes below that there are other

reasons why the case may not be time-barred, the Court declines

to make a definitive ruling on this issue, and invites the

parties to develop the record further should the limitations

issue continue to be litigated.

B. Excusing an Otherwise Untimely Filing

In many cases, deciding when a plaintiff’s cause of action

accrued is just the first step in deciding if the case must be

dismissed on limitations grounds. There are a number of reasons

which excuse a party’s failure to file within the prescribed time

period after accrual of that party’s claim, and Mr. Collins

argues that one or more of those reasons apply here. The Court

agrees with him that one of them may, and that the facts

concerning that issue are in dispute, but there are others which

clearly do not.

First, Mr. Collins argues that the statute of limitations

really did not begin to run on the date his property was seized

because the City’s retention of that property was a continuing

violation of his rights. The Court finds no merit in this

argument.

The Court of Appeals for the Sixth Circuit has adopted a

three-part inquiry for determining whether a continuing violation

exists which would excuse the otherwise untimely filing of a

claim. “First, the defendant’s wrongful conduct must continue

after the precipitating event that began the pattern[ ]. Second,

injury to the plaintiff must continue to accrue after that event. 

Finally, further injury to the plaintiff[ ] must have been

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avoidable if the defendants had at any time ceased their wrongful

conduct.” Tolbert v. State of Ohio Dept. of Transp., 172 F.3d

934, 940 (6th Cir. 1999) (citation omitted). 

The Court of Appeals has been reluctant “to apply [the

continuing violation] doctrine outside of the context of Title

VII.” LRL Properties v. Portage Metro Housing Authority, 55 F.3d

1097, 1105 n.3 (6th Cir. 1995) (citations omitted); see also

Stanley v. Malone, 2009 WL 485491 at *6 (observing that “the

continuing violation doctrine typically arises in the context of

employment discrimination cases and is rarely extended to § 1983

claims”). In Dixon v. Anderson, 928 F.2d 212 (6th Cir. 1991),

the court explained that “‘continuing violations’ [ ] fall[ ]

into two categories of ‘narrowly limited exceptions’ to the usual

rule that ‘statutes of limitations . . . are triggered at the

time the allegedly discriminatory act occurred.’” Id. at 216,

quoting E.E.O.C. v. Penton Indus. Pub. Co., 851 F.2d 835, 837-38

(6th Cir. 1988). The first category “arises where there is some

evidence of present discriminatory activity giving rise to a

claim of continuing violation ....” Id. For instance, each time

an employer commits an illegal act such as giving unequal pay for

equal work, a separate violation of law occurs. The second

category of continuing violation arises when there is “‘a

longstanding and demonstrable policy of discrimination.’” Id. at

217. In this regard, a plaintiff “must establish that some form

of intentional discrimination against the class of which

plaintiff was a member was the company’s standard operating

procedure.” Sharpe v. Cureton, 319 F.3d 259, 269 (6th Cir.

2003). 

As the Tolbert court explained, a “continuing violation is

occasioned by continued unlawful acts, not continual ill effects

from an original violation.” Tolbert, 172 F.3d at 940, quoting

National Advertising Co. v. City of Raleigh, 947 F.2d 1158,, 1166

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(4th Cir. 1991). In Herrin v. Dunham, 2008 WL 2781456, *5 (E.D.

Mich. March 17, 2008), the court held that “the alleged wrongful

retention of property concerns the continued ill effects of the

initial [ ] seizure [so] that the continuing violation theory

does not apply.” 

In this case, the Defendants’ continued retention of Mr.

Collins’ property following the seizure clearly amounts to a

“continued ill effect” of the initial seizure. The Court notes,

however, that Mr. Collins apparently bases his theory of

continuing violation not on the continued retention of his

property by Defendants, but rather upon the fact that Defendants

allegedly “hid” the sale of his property and were engaged in some

form of “cover-up.” According to Mr. Collins, “[d]espite the

very limited discovery in this matter, it is clear that

Defendants have been involved in a cover-up regarding the

unlawful disposal of Plaintiff’s property.” Plaintiff’s

Memorandum in Opposition, Doc. No. 14, at 6. 

Even if there were enough facts to support this position,

the Court is not convinced that the continuing violation theory

applies to toll the statute of limitations in this case. If it

is true that Defendants were engaged in some form of collusion

with regard to the disposal of his property, Mr. Collins still

has not shown that their actions were part of an overarching

policy on Defendants’ part to violate his and others’ rights on

an ongoing basis. The concept that the defendants somehow hid

their wrongful detention or disposition of Mr. Collins’ property

from him is better analyzed under an equitable theory such as the

ones discussed below, and does not fit logically into the

“continuing violation” doctrine. For these reasons, the Court

concludes that the continuing violation doctrine does not apply

to this case. 

Next, Mr. Collins argues that because his attorney, Mr.

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Pusateri, “was [led] to believe that Defendants still had

possession of [Collins’] property” and because Mr. Pusateri

requested return of the property from the state court, the

statute of limitations is subject to equitable tolling. See

Plaintiff’s Memorandum in Opposition, at 7. According to Mr.

Collins, “[w]ithout [Defendants’] representations, [he] would not

have waited until August 5, 2011 to file this lawsuit.” Id. He

also argues that Defendants should not be permitted to benefit

from their misconduct because they “unlawfully disposed of

[Collins’] property knowing there was a pending motion before the

trial court concerning the property.” Id. 

Equitable tolling applies “only when a litigant’s failure to

meet a legally-mandated deadline unavoidably arose from

circumstances beyond that litigant’s control.” Graham-Humphreys

v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th

Cir. 2000) (citations omitted). The doctrine “permits a

plaintiff to avoid the bar of the statute of limitations if

despite all due diligence he is unable to obtain vital

information bearing on the existence of his claim.” E.E.O.C. v.

Kentucky State Police Dept., 80 F.3d 1086, 1095 (6th Cir. 1996),

quoting Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th

Cir. 1990). 

In this Circuit, there are factors a court must consider

when determining whether the doctrine of equitable tolling

applies: “(1) lack of notice of the filing requirement; (2) lack

of constructive knowledge of the filing requirement; (3)

diligence in pursuing one’s rights; (4) absence of prejudice to

the defendant; and (5) the plaintiff’s reasonableness in

remaining ignorant of the particular legal requirement.” Truitt

v. County of Wayne, 148 F.3d 644, 648 (6th Cir. 1998). The

factors are not, however, “comprehensive, nor is each of the five

factors relevant in all cases.” Cook v. Stegall, 295 F.3d 517,

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521 (6th Cir. 2002). Thus, the Court must consider equitable

tolling on a “case-by-case basis.” Id. 

Looking at these factors, the Court finds that the doctrine

of equitable tolling is not applicable here. Mr. Collins was

clearly aware that Defendants had possession of his property. As

discussed above, he may have known, as early as the date it was

seized, that the seizure was improper, and he certainly knew,

when his attorney first asked for it back (which happened more

than two years before he filed this case), that the City had no

continuing right to keep or dispose of it. There is no evidence

that he was unaware of the existence of the two-year statute of

limitations for §1983 claims. The fact that he may have been 

unaware of the actual status of his property - that is, that it

had been sold - does not alter this conclusion, because he knew

he did not have it and that (assuming the truth of his claim of

lawful ownership) the City had no right to keep it. This is

simply not a case for equitable tolling.

There is another equitable doctrine that fits these facts

more closely, however, and that is the doctrine of equitable

estoppel. The doctrine of “[e]quitable estoppel ‘comes into play

if the defendant takes active steps to prevent plaintiff from

suing in time, as by promising not to plead the statute of

limitations.’” E.E.O.C. v. Kentucky State Police Dept., 80 F.3d

1086, 1095 (6th Cir. 1996), quoting Cada v. Baxter Healthcare

Corp., 920 F.2d 446, 450-51 (7th Cir. 1990). In contrast,

equitable tolling applies “where there lacks any allegation of

impropriety on the defendant’s part . . . .” Easterly v. Budd,

2006 WL 2404143, *9 (N.D. Ohio August 18, 2006). 

Equitable estoppel “applies exclusively in situations where

demonstrated egregious wrongdoing by a defendant prevents a

plaintiff from bringing suit on a claim of which plaintiff is

aware.” Id. (citations omitted). The doctrine “is invoked in

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cases where the defendant takes active steps to prevent plaintiff

from suing in time, such as by hiding evidence or promising not

to plead the statute of limitations.” Bridgeport Music, Inc. v.

Diamond Time, Ltd., 371 F.3d 883, 891 (6th Cir. 2004) (citations

omitted). The doctrine is premised upon both the defendant’s

improper conduct as well as the plaintiff’s “actual and

reasonable reliance thereon.” Id., quoting Hentosh v. Herman M.

Finch Univ., 167 F.3d 1170, 1174 (7th Cir. 1999). In order to

toll the statute of limitations on this basis, the plaintiff must

show: (1) conduct or language amounting to representation of a

material fact; (2) the party to be estopped is aware of the true

facts; (3) the party to be estopped intends that the

representation be acted upon, or the party asserting estoppel

reasonably believes that he so intends; (4) the party asserting

estoppel is unaware of the true facts; (5) the party asserting

estoppel reasonably or justifiably relies on the representation

to his detriment. Egerer v. Woodland Realty, Inc., 556 F.3d 415,

425 (6th Cir. 2009), citing Sprague v. General Motors Corp., 133

F.3d 388, 403 (6th Cir. 1998). 

In this case, Mr. Collins has come forth with some facts in

support of each of these elements. As to the first element, it

appears undisputed that Mr. Pusateri was told that the property

seized would be returned if a court so ordered. In apparent

reliance on this statement, Mr. Pusateri made both oral and

written motions to the state court requesting the return of Mr.

Collins’ property. As to the second element, there is a genuine

issue of material fact as to whether at the time these statements

were made, Defendants were aware of the true facts –

specifically, that Mr. Collins’ property would not and could not

be returned to him even with a court order, because they had

already disposed of his property or intended to do so. As to the

third element, a reasonable trier of fact could conclude that the

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Defendants intended Mr. Pusateri to rely on their representations

and seek return of the property through a state court order

rather than by filing a §1983 action. As to the fourth element,

there is evidence that Mr. Collins was unaware that the property

would be sold during the time the motions for return of the

property were pending before the state court. Finally, as to the

fifth element, a trier of fact could find that Mr. Collins’

reliance on the Defendants’ representations regarding the status

of his property was reasonable, and that he was prejudiced by

this reliance in that he did not file this action within two

years of the date of the seizure, even though he could have done

so had he not believed that he could simply get a court order and

recover his property. 

Given the existence of factual issues as to the application

of equitable estoppel, summary judgment on statute of limitations

grounds is not appropriate. Of course, as the record is more

fully developed, the Defendants are be free to re-argue the issue

if they believe the facts preclude the application of equitable

estoppel - just as Mr. Collins is free to develop and present

additional facts on the issue of what a reasonable person would

have understood about the existence of an actual injury at the

time his property was seized. This is simply not the correct

time to resolve these issues, however, so Defendants’ motion must

be denied.

IV.

For all of the reasons set forth above, the Defendants’

Motion for Summary Judgment, Doc. No. 12, is denied. 

/s/ Terence P. Kemp 

United States Magistrate Judge

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