two-year statute of limitations had expired); Anson v. Corr. Corp. Of America, No. 4:12cv357,
2012 WL 2862882, at *2-3 (N.D. Ohio July 11, 2012) (in sua sponte dismissing complaint under
28 U.S.C. § 1915(e), the court reasoned in part that the plaintiff's Bivens claims asserted “six
years after the events upon which they are based occurred” were time-barred under Ohio’s two-
year statute of limitations for bodily injury), aff'd, 529 F. App’x 558 (6th Cir. 2013).

Here, it is clear from the face of the complaint that plaintiff's claims regarding his July 21, 2014
arrest and alleged false imprisonment are time-barred. See Wallace, 549 U.S. at 389-90 (holding
that the limitations period with respect to a false imprisonment or false arrest claim brought
under 42 U.S.C. § 1983 begins upon the initiation of legal process, such as when the individual is
bound over for trial or arraigned on charges). In this case, plaintiff was arrested on July 21, 2014
and a criminal complaint was filed the following day. (Doc. 1-2 at PAGEID#: 12). An
indictment for felonious assault was filed on July 29, 2014, and plaintiff was arraigned on
August 8, 2014. (/d.). Plaintiff did not file the instant case until February 9, 2018, long after the
two year limitations period expired. Therefore, plaintiff's false arrest and false imprisonment
claims are subject to dismissal at the screening stage on statute of limitations grounds.

Second, plaintiff has failed to allege any facts showing how the individual defendants
participated in any alleged violation of his constitutional rights. Plaintiff's complaint provides
no factual content or context from which the Court may reasonably infer that the individual
defendants violated plaintiff's rights. Iqbal, 556 U.S. at 678. With the exception of listing the
named defendants in the caption of his complaint, plaintiff has failed to allege the specific
actions each defendant allegedly took to violate his rights. Plaintiff's allegations of “malicious
prosecution” and “wrongful conviction” are pure legal conclusions that in themselves are

insufficient to give the defendants or the Court notice of the factual basis for plaintiff's claims.


(Doc. 1-2 at PAGEID#: 13-14). Plaintiff alleges his attorney committed misconduct by “telling
the judge at bond hearing I had a knife!” (Doc. 1-2 at PAGEID#: 16). Plaintiff appears to allege
he was maliciously prosecuted, wrongfully accused, wrongfully convicted, and falsely
imprisoned. As relief, he seeks $1.3 million. (Doc. 1-2 at PAGEID#: 16).

Plaintiffs complaint is subject to dismissal. First, to the extent plaintiff may be alleging
claims of false arrest and false imprisonment, those claims are time-barred. Plaintiff's civil
rights complaint is governed by Ohio’s two-year statute of limitations applicable to personal
injury claims. See, e.g., Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989) (holding that
the “appropriate statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in Ohio is
contained in Ohio Rev. Code § 2305.10, which requires that actions for bodily injury be filed
within two years after their accrual”); see also Wallace v. Kato, 549 U.S. 384, 387 (2007) (and
Supreme Court cases cited therein) (holding that the statute of limitations governing § 1983
actions “is that which the State provides for personal-injury torts”); Zundel v. Holder, 687 F.3d
271, 281 (6th Cir. 2012) (“the settled practice . . . to adopt a local time limitation as federal law if
it is not inconsistent with federal law or policy to do so” is applicable “to § 1983 actions and to
Bivens actions because neither the Federal Constitution nor the § 1983 statute provides
timeliness rules governing implied damages”) (internal citation and quotation marks omitted).
Although the statute of limitations is an affirmative defense, when it appears clear on initial
screening of the complaint that the action is time-barred, the complaint may be dismissed for
failure to state a claim upon which relief may be granted. See Jones v. Bock, 549 U.S. 199, 215
(2007). Cf Fraley v. Ohio Gallia Cnty., No. 97-3564, 1998 WL 789385, at *1-2 (6th Cir. Oct.
30, 1998) (holding that the district court “properly dismissed” the pro se plaintiff's § 1983 civil

rights claims under 28 U.S.C. § 1915(e)(2)(B) because the complaint was filed years after Ohio’s


Twombly, 550 U.S. at 555. Accordingly, the complaint fails to state a claim upon which relief
may be granted against the individual defendants and should be dismissed under 28 U.S.C.
§ 1915(e)(2)(B).

Third, plaintiffs claims against the State of Ohio should be dismissed. Any form of
relief sought against a State in federal court is barred under the Eleventh Amendment unless the
State has waived its sovereign immunity. See Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 58
(1996): Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984); Hamilton's
Bogarts, Inc. v. Mich., 501 F.3d 644, 654 n.8 (6th Cir. 2007). The State of Ohio has not
constitutionally nor statutorily waived its Eleventh Amendment immunity in the federal courts.
See Johns y. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985); State of Ohio v. Madeline
Marie Nursing Homes, 694 F.2d 449 (6th Cir. 1982). Therefore, plaintiff's complaint against the
State of Ohio should be dismissed.

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiff's complaint be DISMISSED with prejudice.

2. The Court certify pursuant to 28 U.S.C. § 1915(a) that for the foregoing reasons an
appeal of any Order adopting this Report and Recommendation would not be taken in good faith
and therefore deny plaintiff leave to appeal in forma pauperis. Plaintiff remains free to apply to

proceed in forma pauperis in the Court of Appeals. See Callihan v. Schneider, 178 F.3d 800,

803 (6th Cir. 1999), overruling in part Floyd v. United States Postal Sery., 105 F.3d 274, 277

(6th Cir. 1997).

Date: 2/2/68 BE atin 2 Method

Karen L. Litkovitz
United States Magistrate Judge



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

HUBERT LOWE, Case No. 1:18-CV-92
Plaintiff, Black, J.
Litkovitz, M.J.
vs.
STATE OF OHIO, et al., REPORT AND
Defendants. RECOMMENDATION

Plaintiff, a resident of Cincinnati, Ohio, brings this pro se civil action against the State of
Ohio and City of Cincinnati police officers William Trabel, Jerry Hodges, Ronald Schultz, and
Euginia Blue. By separate Order, plaintiff has been granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte review of
plaintiff's complaint to determine whether the complaint, or any portion of it, should be
dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be
granted or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§ 1915(e)(2)(B).

In enacting the original in forma pauperis statute, Congress recognized that a “litigant
whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an
economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits.” Denton
v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)).
To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in
forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Jd.; see
also 28 U.S.C. §§ 1915(e)(2)(B)(i). A complaint may be dismissed as frivolous when the
plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v.

Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

HUBERT LOWE, Case No. 1:18-CV-92
Plaintiff, Black, J.
Litkovitz, M.J.
VS.

STATE OF OHIO, et al.,
Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).


Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or
when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490
U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise
to the level of the irrational or “wholly incredible.” Denton, 504 U.S. at 32; Lawler, 898 F.2d
at 1199. The Court need not accept as true factual allegations that are “fantastic or delusional”
in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)
(quoting Neitzke, 490 U.S. at 328).

Congress also has authorized the sua sponte dismissal of complaints that fail to state a
claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii). A complaint filed
by a pro se plaintiff must be “liberally construed” and “held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.”” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71
(“dismissal standard articulated in Jgbal and Twombly governs dismissals for failure to state a
claim” under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).

“A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-
pleaded factual allegations as true, but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan y. Allain, 478 U.S. 265, 286

(1986)). Although a complaint need not contain “detailed factual allegations,” it must provide


“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers “labels and conclusions” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Jd. at 557. The complaint must “give the defendant fair notice of what the .. .
claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citations omitted).

Plaintiff's pro se complaint alleges the following, verbatim:

TIMELINE OF EVENTS

e June 27, 2014-crime happened about 8:30 a.m.
o Sgt. Sherman First Responder
e July 3, 2014-Fugitive Task Force
o 10-11:00 a.m.
o Det. Schultz
o PS Schultz
© 8 officers
e July 21, 2014-Arrested for felonious assault 9:00 p.m.
o P.S. Schultz
o Nocomplaint filed
o No arrest warrant issued
e According to docket sheet-was charged and complaint filed on July 22, 2014
o PS Schultz

*
*
*

Beginning on June 27, 2014, the Cincinnati Police Department-District 3, began a
pattern of unwarranted harassment against me. It started with a false accusation
of assault. Continued with Cincinnati Police Department kicking in the door of
my apartment building on July 3, 2014, without a warrant, reason or complaint
being filed with the proper court. It ended with my arrest on a false charge of
felony assault on July 21, 2014. On that date I was again arrested without a
criminal complaint being filed nor an arrest warrant being issued.

Won appeal and State let me finish my time after would put me on parole cause
me to lose two jobs when they sent me to Summit for six months then put me on
probations case was dismissed Nov. 27, 2018 (sic). Violation of appelette (sic)
court ruling.

we