Opinion
Case No. 1:13–CV–652.
02-24-2015
Charles CHAPMAN, Plaintiff, v. Stephan LAWSON, et al., Defendants.
Charles Chapman, Marion, OH, pro se. Peter J. Stackpole, City of Cincinnati, Christian Joseph Schaefer, Cincinnati, OH, Douglas M. Mansfield, Lape Mansfield Nakasian & Gibson, LLC, Powell, OH, for Defendants.
Charles Chapman, Marion, OH, pro se.
Peter J. Stackpole, City of Cincinnati, Christian Joseph Schaefer, Cincinnati, OH, Douglas M. Mansfield, Lape Mansfield Nakasian & Gibson, LLC, Powell, OH, for Defendants.
OPINION AND ORDER
MICHAEL R. BARRETT, District Judge.
This matter is before the Court on the July 16, 2014 Report and Recommendation of the Magistrate Judge. (Doc. 45). The Report recommends granting (1) the Motion to Dismiss of Hamilton County and the unnamed agents of the Hamilton County Regional Narcotics Unit and Organized Crime Division (“County Defendants”) (Doc. 20); (2) the Motion to Dismiss of Agent Steven Lawson of the Cincinnati Police Department and the City of Cincinnati (“City Defendants”) (Doc. 25); and (3) the Motion to Dismiss of Sprint Spectrum L.P./ Sprint Inc./Nextel West Corporation (“Sprint”) (Doc. 21). It further recommends that the Court decline to exercise pendant jurisdiction over Plaintiff's state law claims. Plaintiff has filed timely objections to the Report. (Doc. 50). The County Defendants have filed a response. (Doc. 51).
I. STANDARD FOR REVIEW OF OBJECTIONS
When objections to a magistrate judge's report and recommendation are received on a non-dispositive matter, the district judge must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law. Fed.R.Civ.P. 72. When objections to a magistrate judge's report and recommendation are received on a dispositive matter, however, the assigned district judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). After review, the district judge “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1). General objections are insufficient to preserve any issues for review: “[a] general objection to the entirety of the Magistrate [Judge]'s report has the same effects as would a failure to object.” Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.1991). Nevertheless, the objections of a plaintiff appearing pro se will be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ).
II. ANALYSIS
Plaintiff objects to the recommendations in the Report as to the federal claims addressed in all three motions to dismiss. Plaintiff does not raise any specific objections as to the recommendation that the Court decline to exercise pendent jurisdiction over the federal claims. Those objections as to the federal claims are addressed below.
A. The County Defendants' Motion to Dismiss
The Report recommends dismissing Plaintiff's claims against the County Defendants for several reasons. First, it recommends dismissal of the § 1983 claim as barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because Plaintiff makes a “fruit of the poisonous tree” argument insofar as he maintains the warrants lacked probable cause and were unlawfully acquired by the County Defendants and unlawfully provided by Sprint. (Doc. 45, PageId 264). Second, it recommends dismissal for failure to state claims under the SCA, ECPA, and the Omnibus Act because the information was disclosed to the County Defendants pursuant to warrants and court orders, and contains legal conclusions that are insufficient to state a plausible claim for relief. (Doc. 45, PageId 267–68). Third, it recommends dismissal of the allegations that the County Defendants were engaged in unauthorized monitoring because the allegations are speculative, lack supporting factual allegations, and are barred by Heck. (Doc. 45, PageId 268–69). Finally, it recommends dismissal of the municipal liability claim for lack of factual content that would allow the Court to reasonably infer a violation and because a ruling in his favor would cast doubt on the legality of his conviction.
Plaintiff objects to those conclusions on several bases, which are discussed below.
1. Objections as to Recommendations on Constitutional Claims
Plaintiff objects to the recommendation that the constitutional claims brought under 42 U.S.C. § 1983 be dismissed as barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Plaintiff contends that the Magistrate Judge misapplied the “fruit of the poisonous tree” doctrine because suppression is not a remedy for those claims and because the intercepted phone calls, text messages, and electronic information was not placed into evidence or used to convict Plaintiff in his criminal case so as to necessarily imply the invalidity of his conviction. (Doc. 50, PageId 289).
Having reviewed the issue de novo, the undersigned finds that Plaintiff's § 1983 claims based upon federal constitutional violations are barred by Heck. As the Magistrate Judge recognized, Plaintiff's § 1983 claim relies on his allegations that the affidavit underlying the interception warrants contained information obtained without the requisite court orders or warrants. To that end, the Magistrate Judge correctly recognized that Plaintiff essentially makes a “fruit of the poisonous tree” argument insofar as he maintains that the warrants lacked probable cause, and consequently, that the electronic information obtained pursuant to the warrants was unlawfully acquired by the County Defendants and unlawfully provided by Sprint Nextel. Given that the remedy of exclusion exists for federal constitutional violations, see United States v. Fisher, 745 F.3d 200, 203 (6th Cir.2014) ( “Evidence that has been obtained in violation of the Fourth Amendment may be subject to exclusion at trial.”), a finding in favor of Plaintiff in regards to those purported constitutional violations would necessarily cast doubt on his conviction and sentence in the Hamilton County Common Pleas Court for drug trafficking, which has not been reversed or otherwise invalidated. See Heck, 512 U.S. at 487, 114 S.Ct. 2364 ; Cummings v. City of Akron, 418 F.3d 676, 682–83 (6th Cir.2005) ; Schilling v. White, 58 F.3d 1081, 1085–86 (6th Cir.1995).
Pursuant to 18 U.S.C. § 2708, the remedies provided in that chapter are the exclusive remedy for non-constitutional violations.
Plaintiff's citation to the caselaw from the Seventh Circuit concerning an exception to Heck (Doc. 50, PageID 289) does not change the undersigned's conclusion in regards to the constitutional claims. The Magistrate Judge not only considered that argument by Plaintiff in the Report, but she also correctly rejected it (Doc. 45, PageId 266), explaining that the Sixth Circuit has held that “[t]he fact that a Fourth Amendment violation may not necessarily cause an illegal conviction does not lessen the requirement that a plaintiff show that a conviction was invalid as an element of constitutional injury. ” Schilling, 58 F.3d at 1086 ; see also Bell v. Raby, No. 99–72917, 2000 WL 356354, at *6 (E.D.Mich. Feb. 28, 2000). Given that Plaintiff's Complaint demonstrates that his constitutional claims challenge the lawfulness of his conviction and sentence, which have not be overturned or invalidated, he has not alleged an element of his constitutional claims. Therefore, to the extent Plaintiff seeks to bring a cause of action under § 1983 attacking the validity of the searches and seizures of the electronic information leading to his arrest under the Fourth Amendment or the constitutionality of his conviction generally, his § 1983 claim is barred by Heck. The Report therefore is adopted in that respect.
2. Objections to Recommendations Relating to Statutory Claims and Unlawful Monitoring
Plaintiff makes several objections to the recommendation that his statutory claims be dismissed. First, he claims that his claims are more than speculative because he specifically alleges that Agent Lawson “attests to querying mobile phone numbers on the ‘public records and law enforcement databases' revealing phone association” and appears to claim that those databases “obviously” contain information on mobile phone associations obtained prior to an investigation, court order or warrant such that County Defendants must have violated those statutes. (Doc. 50, PageId 289–90). He contends that those facts also are supportive of a plausible claim for unauthorized monitoring. (Doc. 50, PageId 290–91). Second, Plaintiff contends that the Magistrate Judge failed to recognize that “there was never [a] warrant or court order, issued to Sprint” for the Sprint mobile number ending in the numbers 3359. (Doc. 50, PageID 289–90). Third, he contends that Heck is inapplicable to his “SCA and ECPA claims under his 42 U.S.C. § 1983 action” because “suppression of evidence is not a remedy recognized for a Title II violation of the ECPA” or a violation of the SCA. (Doc. 50, PageId 288).
Plaintiff's first objection appears to be directed towards 18 U.S.C. § 2703, which permits a governmental entity to compel a “provider of electronic communication service” or a “remote computing service” to provide subscriber names, addresses, telephone records, and other identifying information. 18 U.S.C. § 2703. The plain language of that provision does not indicate that the processes set forth in the statutory text are the exclusive means by which a governmental entity may obtain the information, nor does the provision limit a governmental entity's ability to obtain information that is otherwise readily available to the general public or to utilize information contained in its own databases. See 18 U.S.C. §§ 2510, 2703, 2711. To the extent that Plaintiff also intends to argue that the underlying information contained in the public records or the law enforcement databases was obtained in the first instance without the requisite authorization or that defendants are engaged in covert monitoring, there is not a single fact that has been pled that plausibly would support such a conclusion in this case. Conclusory and speculative allegations do not suffice. Moreover, his reference in his objections to other surveillance incidents that have no direct connection to this case do not permit a reasonable inference that any unlawful surveillance occurred in this instance in relation to Plaintiff. Plaintiff thus has failed to state a plausible claim on those grounds, and his objection is therefore overruled.
It also is noted that the SCA states that a service provider may, among other things, “divulge a record or other information pertaining to a subscriber ... to any person other than a governmental entity.” 18 U.S.C. § 2702(c).
Plaintiff's second objection concerning the Sprint mobile number ending in 3359 also fails to survive scrutiny under Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The undersigned agrees with the conclusion in the Report (Doc. 45, PageId 267) that: “[t]o the extent plaintiff alleges that defendant unlawfully obtained his cell phone subscriber information, account information, and electronic tracking information ‘absent probable cause, authorization, or warrant in violation of the SCA’ (Doc. 3, ¶ 14), the complaint alleges legal conclusions that are insufficient to state a plausible claim for relief.” Plaintiff's arguments to the contrary are speculative.
The Report fully sets forth the standard of review for a Rule 12(b)(6) motion to dismiss, noting, among other things, that the claim must be plausible, which is a context-specific inquiry that requires the reviewing court to draw on judicial experience and common sense and which is a standard that goes beyond the mere possibility of misconduct. (Doc. 45, PageId 260–61) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).
Further, to the extent Plaintiff argues that real-time cell site information was obtained, that information does not fall within the scope of the SCA. United States v. Powell, 943 F.Supp.2d 759, 777 (E.D.Mich.2013) (stating that “statutory authority relevant to pen-register / trap-and-trace devices, stored communications, tracking devices, and wiretaps is not applicable to cell-phone tracking”). In any event, his allegations as to the unlawful obtainment of electronic tracking information and his allegations in regards to other constitutional violations in relation to the SCA, ECPA, and Omnibus Act claims necessarily call into question the validity of his conviction and are barred by Heck. See id. at 775–77 ; see also United States v. Fisher, 745 F.3d 200, 203 (6th Cir.2014) ; United States v. Skinner, 690 F.3d 772 (6th Cir.2012) ; Cummings v. City of Akron, 418 F.3d 676, 682–83 (6th Cir.2005) ; Schilling v. White, 58 F.3d 1081, 1085–86 (6th Cir.1995).
Accordingly, the Report's recommendation on this issue shall be adopted, and Plaintiff's objection is overruled.
3. Objections as to Municipal Liability
Plaintiff objects to dismissal of the municipal liability claim against Hamilton County on the basis that he has “consistently maintained that it is the unlawful policy and practice of Defendant Hamilton County in its provision of the ‘public records and law enforcement databases' utilized by employee sheriff's and unnamed agents.” (Doc. 50, PageId 288).
Upon de novo review, the undersigned agrees with the Magistrate Judge that Plaintiff has still has failed to allege the factual content necessary to reasonably infer that the County violated his rights in this regard, and that the claim also would cast doubt on the validity of his conviction. The Magistrate Judge's recommendation therefore shall be adopted and the municipal liability claim against Hamilton County shall be dismissed.
B. The City Defendants' Motion to Dismiss
The Report recommends dismissing Plaintiff's claims against the City Defendants for several reasons. First, it recommends dismissal of the § 1983 constitutional and municipal liability claims as barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because any finding in Plaintiff's favor would require a concomitant determination that his arrest and conviction were unlawful. (Doc. 45, PageId 271). Second, it recommends dismissal for failure to state claims under the SCA, ECPA, and the Omnibus Act for the same reasons described with respect to the County Defendants and because Plaintiff's allegations concerning Agent Lawson's violation of the SCA in regards to Plaintiff's text message communications with Charlie Bennett are speculative. (Doc. 45, PageId 271). Third, it recommends dismissal of the allegations that the County Defendants were engaged in unauthorized monitoring because the allegations are speculative, lack supporting factual allegations, and are barred by Heck. (Doc. 45, PageId 268–69). Finally, it recommends that the undersigned decline to exercise supplemental jurisdiction over Plaintiff's state law claims against the City Defendants. (Doc. 45, PageId 273).
Plaintiff objects to those conclusions on several bases, which are discussed below.
1. Objections as to Recommendations on Constitutional Claims
Plaintiff objects to the recommendation that the constitutional claims be dismissed as barred by Heck for the same reasons as set forth above in regards to the County Defendants. For the same reasons discussed supra in regards to the County Defendants, the undersigned finds that Plaintiff's § 1983 claims against the City Defendants based upon federal constitutional violations are barred by Heck.
2. Objections to Recommendations relating to Statutory Claims and Unlawful Monitoring
Plaintiff does not make any objections specific to the Magistrate Judge's recommendations that Plaintiff's SCA, ECPA, and Omnibus Act claims against the City Defendants be dismissed. Construing the objections liberally, the undersigned infers that Plaintiff intended to assert the same objections as he did above with respect to the County Defendants. For the reasons discussed supra with respect to the County Defendants, those claims shall be dismissed.
3. Objections as to municipal liability
Plaintiff does not specifically address the issue of municipal liability for the City. Assuming he intended to make the same argument with respect to the City that he did for Hamilton County, that argument is not well taken for the same reasons discussed supra with respect to Hamilton County. Any municipal liability claim against the City shall therefore be dismissed.
C. Sprint's Motion to Dismiss
The Report recommends dismissing Plaintiff's claims against Sprint pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(5). The Report further recommends denying Plaintiff leave to amend the Complaint to identify the proper “Sprint” entity. Plaintiff objects to those recommendations.
1. Objections to Rule 12(b)(2) dismissal
The Report recommends dismissal under Rule 12(b)(2) for lack of personal jurisdiction because the unrefuted assertions in the affidavits provided by Sprint Nextel indicate that its contacts with Ohio do not satisfy the Ohio long-arm statute or the requirements of the federal due process clause. In his objections, Plaintiff cites to Datascape, Inc. v. Sprint Nextel Corp., No. 1:07–cv–640, 2008 U.S. Dist. LEXIS 124238, at *23 (N.D.Ga. Sept. 29, 2008), to show that the court recognized that Sprint Nextel appears to be more than a holding company. He further argues that the undersigned should find that certain unidentified statements of Mr. Schnopp to be contradictory such that Plaintiff makes the requisite prima facie showing of personal jurisdiction.
Upon de novo review, the Court agrees with the analysis of the Magistrate Judge. Plaintiff's objections do nothing to alter the conclusion that Sprint Communications has shown it is a holding company and does not have the requisite contacts with Ohio to fall under the Ohio long-arm statute, Ohio Rev.Code 2307.382(A)(1), or have the minimum contacts with Ohio to satisfy due process. The Magistrate Judge directly addressed Datascape in its Report, noting that no personal jurisdiction was found in that case even though it operated a website. (Doc. 45, PageId 274). Moreover, the undersigned's review of Mr. Schnopp's affidavit does not reveal it to be contradictory so as to undercut the finding of the Magistrate Judge. Plaintiff has not set forth any other specific facts that would allow the undersigned to conclude he has met his burden of showing personal jurisdiction. As such, the undersigned agrees with and adopts the Report's recommendation that the claim against Sprint be dismissed for lack of personal jurisdiction over Sprint.
2. Objections to Rule 12(b)(5) dismissal
The Report recommends dismissal under Rule 12(b)(5) for insufficient service of process because Plaintiff attempted to serve “Sprint Nextel Corporation” at 6200 Sprint Parkway, Overland Park, KS 66251, but the unrefuted affidavit of Mr. Schnopp established that “Sprint Nextel Corporation” n/k/a “Sprint Communications, Inc.” is a holding company, and is separate from the entities named as Defendants in this matter. (Doc. 50, PageId 292–93). In his objections, Plaintiff points out that Mr. Schnopp's affidavit indicates that Sprint Nextel Corporation is not the entity located at 6200 Sprint Parkway, Overland Park, KS 66251, but is “Sprint Communications, Inc. f/k/a/ Spring Nextel Corporation.” He argues that a simple name change does not show they are not the same entity operating at the Kansas address. Plaintiff states that for this reason his claims against Sprint Nextel should not be dismissed, and he should be granted leave to amend.
Upon de novo review, the undersigned agrees that the service of process on named Defendants Sprint Spectrum, L.P./Sprint Inc./Nextel West Corporation was insufficient. While those three Defendants are named in the Complaint, Plaintiff has served only “Sprint Nextel Corporation” n/k/a “Sprint Communications,” which is a holding company. That service does not equate to service on the named Defendants. While the undersigned recognizes the confusion over the issue, proper service must be effected on the proper Sprint entity. While Plaintiff claims that he will be able to do so by amending the Complaint, the Magistrate Judge recommended denying his request to amend the Complaint, as discussed below.
3. Objections as to leave to amend
The Report recommends denying Plaintiff leave to amend his Complaint to identify the proper Sprint entity on the basis that any amendment would be futile. (Doc. 45, PageId 278). The Report indicates that Plaintiff's SCA, ECPA, and Omnibus Act claims against Sprint stem from its sharing of information related to Plaintiff's mobile phones with Hamilton County and the County Defendants, and that because the information was disclosed pursuant to valid warrants, Plaintiff cannot state a claim for relief against Sprint. (Id. ). In his objections, Plaintiff argues, as he did for the County Defendants, that he has raised a plausible claim that the records were obtained without a court order or warrant and in violation of the SCA, ECPA, and Omnibus Act. (Doc. 50, PageId 292–93). As discussed previously, Plaintiff has not stated a plausible claim against the County or the City Defendants in regards to the SCA, ECPA, or the Omnibus Act. For those same reasons, Plaintiff has not stated a plausible claim against the Sprint entities for disclosing the information at issue under those statutes. It is further noted in regards to Plaintiff's arguments concerning the disclosure of records by Sprint to third parties that under 18 U.S.C. § 2702, a provider is not entirely prohibited from disclosing a record or other information relating to a subscriber to or customer of a service that does not contain the content of a communication. Indeed, 18 U.S.C. § 2702 sets forth when such information may be disclosed. For example, it may disclose such information about a subscriber or customer “to any person other than a governmental entity.” 18 U.S.C. § 2702(c)(6). Accordingly, the undersigned agrees with the Report's recommendation that Plaintiff be denied leave to amend.
III. CONCLUSION
Consistent with the foregoing, Plaintiff's Objections (Doc. 50) are OVERRULED and the Magistrate Judge's Report (Doc. 45) is ADOPTED. It is hereby ORDERED that:
1. Defendants' motions to dismiss (Doc. 20, 21, 25) are GRANTED, and Plaintiff's claims under § 1983, the SCA, the ECPA, and the Omnibus Act are DISMISSED with prejudice.
2. Plaintiff's state law claims are DISMISSED without prejudice.
3. Plaintiff's Motion to Stay Pending Disposition of State Appeal Regarding Public Records Request pursuant to O.R.C. § 149.43 (Doc. 52) is DENIED.
4. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons and the reasons set forth in the Report that an appeal of this Order would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.1997).
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
KAREN L. LITKOVITZ, United States Magistrate Judge.
Plaintiff, an inmate at the North Central Correctional Institution, brings this prisoner civil rights action under 42 U.S.C. § 1983 alleging violations of his constitutional rights by defendants Agent Steven Lawson of the Cincinnati Police Department, unnamed agents of the Hamilton County Regional Narcotics Unit and Organized Crime Division, Hamilton County, and the City of Cincinnati (the Governmental Defendants). (Doc. 3). Plaintiff also raises federal statutory and Ohio state law tort claims against Sprint Spectrum L.P./ Spring Inc./Nextel West Corporation (Sprint Nextel). (Id. ). Plaintiff alleges that the Governmental Defendants violated his First, Fourth, Fifth, Ninth, and Fourteenth Amendment rights by, without probable cause, maintaining public record databases of his oral and electronic communications; using electronic tracking to monitor his location; intercepting his text messages; and arresting him without a warrant. (Id. at 4–5). Plaintiff further alleges that Sprint Nextel and the Governmental Defendants are liable for “false arrest, wrongful imprisonment, invasion of privacy, unlawful seizure, malicious prosecution, abuse of process, prima facie tort, conspiracy tort, negligence and gross negligence under the laws of the United States and the State of Ohio....” (Id. at 7). Plaintiff further alleges that defendants violated various congressional acts, including the Stored Communications Act (SCA), 18 U.S.C. §§ 2701 –12 et seq., the Electronic Communication Privacy Act (ECPA), 18 U.S.C. § 2510 et seq., and the Title III Omnibus Crime Control and Safe Streets Act of 1968 (the Omnibus Act), 18 U.S.C. §§ 2510 et seq. (Id. ). Plaintiff seeks declaratory relief and compensatory and punitive damages. (Id. at 8). This matter is before the Court on: (1) Hamilton County and the unnamed agents' (the County Defendants) Fed.R.Civ.P. 12(b)(6) motion to dismiss (Doc. 20), plaintiff's response in opposition (Doc. 38), the County Defendants' reply memorandum (Doc. 41), and plaintiff's sur-reply (Doc. 43); (2) Sprint's Fed.R.Civ.P. 12(b)(2) and 12(b)(5) motion to dismiss (Doc. 21), plaintiff's response in opposition (Doc. 37), Sprint Nextel's reply memorandum (Doc. 40), and plaintiff's sur-reply (Doc. 42); and (3) Agent Lawson and the City of Cincinnati's (the City Defendants) Fed.R.Civ.P. 12(b)(6) motion to dismiss (Doc. 25) and plaintiff's response in opposition (Doc. 39).
Plaintiff's complaint also names as defendants a Hamilton County Court of Common Pleas Judge, the Police Chief for the City of Cincinnati, and the Sheriff and several prosecutors of Hamilton County. (Doc. 3). Further, the complaint alleged claims under 42 U.S.C. §§ 1985 and 1988. These defendants and claims have been dismissed pursuant to the Court's review of the complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). (Docs. 4, 10).
The Court notes that plaintiff has not sought leave to file his sur-reply memoranda as required by the Local Rules. See S.D. Ohio Civ. R. 7.2(a)(2) (sur-replies are not permitted “except upon leave of court for good cause shown.”). However, taking into account plaintiff's status as a pro se litigant, the Court will exercise its discretion and consider plaintiffs additional filings.
I. Standards of Law
A. Federal Rule of Civil Procedure 12(b)(2)
Where a defendant has moved to dismiss a case under Rule 12(b)(2) for lack of personal jurisdiction and the district court rules on the motion without an evidentiary hearing, the plaintiff need only make a “prima facie” showing that the court has personal jurisdiction. Conn v. Zakharov, 667 F.3d 705, 711 (6th Cir.2012) (citing Kroger Co. v. Malease Foods Corp., 437 F.3d 506, 510 (6th Cir.2006) ). The court considers the pleadings in the light most favorable to the plaintiff and does not weigh the disputed facts, although the court may consider the defendant's undisputed factual assertions. Id. (citing Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 153 (6th Cir.1997) ; CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261–62 (6th Cir.1996) ).
Where the district court's subject matter jurisdiction stems from the existence of a federal question, the plaintiff must satisfy the state law requirements for personal jurisdiction. Bird v. Parsons, 289 F.3d 865, 871 (6th Cir.2002). Under Ohio law, personal jurisdiction over non-resident defendants exists only if: (1) Ohio's long-arm statute confers jurisdiction, and (2) the requirements of the federal due process clause are met. Schneider v. Hardesty, 669 F.3d 693, 699 (6th Cir.2012) ; Conn, 667 F.3d at 712 (citing Kauffman Racing Equip., L.L.C. v. Roberts, 126 Ohio St.3d 81, 930 N.E.2d 784, 790 (2010) ; Goldstein v. Christiansen, 70 Ohio St.3d 232, 638 N.E.2d 541, 543 (1994) ).
Ohio's long-arm statute grants the court personal jurisdiction over a non-resident if his conduct falls within one of the nine bases for jurisdiction listed under the statute. See Ohio Rev.Code § 2307.382(A). The federal due process clause requires that the defendant have sufficient “minimum contact[s]” with the forum state such that a finding of personal jurisdiction does not “offend traditional notions of fair play and substantial justice.” Conn, 667 F.3d at 712 (citing Third Nat'l Bank v. WEDGE Group, Inc., 882 F.2d 1087, 1089 (6th Cir.1989) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ). Two types of personal jurisdiction exist under the due process clause: general jurisdiction, when the suit does not arise from defendant's contacts with the forum state; and specific jurisdiction, where the suit does arise from the defendant's contacts with the forum state. Id. at 712–13 (citing Third Nat'l Bank, 882 F.2d at 1089 ) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472–73 & n. 15, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) )). A non-resident defendant may be subject to the general jurisdiction of the forum state only where his contacts with that state are “continuous and systematic.” Id. at 713 (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414–16 & n. 9, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ). A finding of specific jurisdiction requires that three elements be satisfied:
Section § 2307.382(A) states:
“A Court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's:
(1) Transacting any business in this state;
(2) Contracting to supply services or goods in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury ... by an act or omission outside this state ...;
(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state ...;
(6) Causing tortious injury in this state to any person by an act outside this state committed with the purpose of injuring persons ...;
(7) Causing tortious injury to any person by a criminal act ...;
(8) Having an interest in, using, or possessing real property in this state;
(9) Contracting to insure any person, property, or risk located within this state at the time of contracting.”
First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state. Second, the cause of action must arise from the defendant's activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
Id. (citing Bird, 289 F.3d at 874 ) (quoting S. Machine Co. v. Mohasco Indus., Inc., 401 F.2d 374, 381 (6th Cir.1968) ).
B. Federal Rule of Civil Procedure 12(b)(5)
Rule 12(b)(5) provides that an action may be dismissed for “insufficient service of process.” Fed.R.Civ.P. 12(b)(5). Generally, the plaintiff bears “the burden of establishing [the service's] validity.” Metro. Alloys Corp. v. State Metals Indus., Inc., 416 F.Supp.2d 561, 563 (E.D.Mich.2006). Courts may look to “record evidence” and “uncontroverted affidavits” in determining whether plaintiffs have met this burden. Id.
C. Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). See also Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). To avoid dismissal for failure to state a claim for relief, plaintiff's 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). “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.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). While the Court must accept all well-pleaded factual allegations as true, it need not “accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ). The complaint need not contain “detailed factual allegations,” yet must provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). 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, 127 S.Ct. 1955. Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at 557, 127 S.Ct. 1955.
Although plaintiff need not plead specific facts, his statement must “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93, 127 S.Ct. 2197 (citations omitted). Plaintiff's factual allegations must be enough to raise the claimed right to relief above the speculative level and to create a reasonable expectation that discovery will reveal evidence to support the claim. Twombly, 550 U.S. at 556, 127 S.Ct. 1955. This inquiry as to plausibility is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (quoting Fed.R.Civ.P. 8(a)(2) ). Finally, the Court must “scrutinize with special care” a motion to dismiss “a complaint filed under a civil rights statute.” See Perry v. McGinnis, 209 F.3d 597, 603 (6th Cir.2000) (citing Brooks v. Seiter, 779 F.2d 1177, 1180 (6th Cir.1985) ). With these principles in mind, the Court reviews plaintiff's complaint.
II. Factual Allegations
Agent Lawson was the lead investigator of an investigation into drug trafficking activities involving plaintiff. (Doc. 3, ¶¶ 5, 14). Pursuant to this investigation, Agent Lawson and the Governmental Defendants obtained two interception warrants for text messages, phone call conversations, and subscriber information. (Id., ¶¶ 14(a)-(i), Exhs. B, C). Plaintiff alleges that the interception warrants were based in part on information gathered “absent probable cause” from Global Positioning Systems (GPS) information, electronic tracking information, and stored records and communications from plaintiff's mobile phone. (Id. ). As best the Court can discern, plaintiff appears to allege that the Governmental Defendants unlawfully obtained this information from Sprint Nextel because the warrants were issued on November 7, 2011, but the supporting affidavit of Agent Lawson was subscribed and sworn the day after—on November 8, 2011. (Id., Exhs. A–C). Plaintiff alleges that the affidavits for the warrants lacked probable cause, the warrants were therefore unlawfully obtained and, thus, his subsequent arrest was unlawful. (Id., ¶¶ 14(j)-(l )). Plaintiff further alleges that Sprint Nextel is liable in tort for its negligent or intentional act of giving information related to his mobile phone to the Governmental Defendants in the absence of a warrant. (Id., ¶¶ 20–21).
Plaintiff pleaded guilty to two counts of trafficking in drugs on July 18, 2012, and was sentenced to five years imprisonment. See State of Ohio v. Charles Chapman, Case No. B1108223–B (Hamilton County Court of Common Pleas). Plaintiff is presently serving his sentence at the North Central Correctional Institution.
The Court may consider documents integral to or attached to the pleadings when ruling on a Rule 12 motion to dismiss without converting the motion to one for summary judgment. Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir.2007). In addition, the Court may examine public documents without converting the motion into one for summary judgment. Wyser–Pratte Mgmt. Co. Inc. v. Telxon Corp., 413 F.3d 553, 560 (6th Cir.2005) (citing Kostrzewa v. City of Troy, 247 F.3d 633, 644 (6th Cir.2001) ). The Court “may take judicial notice of proceedings in other courts of record....” Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir.1980) (quoting Granader v. Public Bank, 417 F.2d 75, 82–83 (6th Cir.1969) ).
III. Resolution
A. The County Defendant's Motion to Dismiss (Doc. 20).
The County Defendants move to dismiss plaintiffs complaint under under Fed.R.Civ.P. 12(b)(6), asserting that plaintiff has failed to state a claim against them for which relief can be granted. The County Defendants argue that dismissal is appropriate because until plaintiffs conviction or sentence has been set aside, his § 1983 claims related thereto are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The County Defendants further argue that plaintiffs claims against Hamilton County must be dismissed under Monell v. Dep't of Soc. Srvs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), because plaintiff has failed to allege facts sufficient to establish that the County is liable due to an unlawful custom, practice, or policy. Even assuming for argument's sake that plaintiff has properly alleged a municipal liability claim, the County Defendants assert that Hamilton County is not properly named as a defendant because such claims must “identify a county official or entity responsible for establishing the policy.” Clevenger v. Raker, No. 1:12–cv–432, 2012 WL 5385607, at *3 (S.D.Ohio Nov. 1, 2012). Therefore, to the extent plaintiff's complaint seeks to state a claim for municipal liability against Hamilton County, the County Defendants assert the proper defendant is the County Sheriff; however, the Court has already dismissed plaintiff's claims against the Sheriff of Hamilton County pursuant to its sua sponte review of plaintiff's complaint. The County Defendants also assert that plaintiff's claims against the Hamilton County Regional Narcotics Unit and Organized Crime Division (RENU) must be dismissed because RENU is not an entity capable of being sued. Insofar as plaintiff seeks to raise claims against individuals working with RENU, the County Defendants contend that any such claims are properly raised against the employees of the law enforcement agencies comprising RENU, i.e., Cincinnati Police Officers or Hamilton County Sheriff's Deputies, and not RENU itself. Here, as the affidavit at issue was signed by a City of Cincinnati employee—Agent Lawson—the County Defendants argue that plaintiff's complaint fails to state claims against individual Hamilton County employees. Lastly, the County Defendants argue that any individual Hamilton County employees involved in the investigation of plaintiff or execution of the interception warrants are protected from plaintiff's claims under U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), because the investigation into and search and seizure of plaintiff were undertaken pursuant to valid warrants. (Doc. 20).
Plaintiff responds in opposition that his claims are not barred by Heck because he is “seeking civil monetary damages for [d]efendant[s'] unlawful collection of” information from his mobile phone under the ECPA, SCA, and the Omnibus Act. Plaintiff therefore maintains that success on his causes of action will not necessarily invalidate his conviction. Plaintiff's response also contains his theories that the defendants in this matter have greater access to electronic information and metadata than the federal government and that such access is in violation of these statutes. (Doc. 38). For the reasons that follow, plaintiff's claims against the County Defendants should be dismissed.
Plaintiff's complaint fails to state a claim for relief against the County Defendants under § 1983. Plaintiff's § 1983 claims rely entirely on his allegations that the affidavit underlying the interception warrants contained unlawfully obtained information. Plaintiff's assertion is essentially a “fruit of the poisonous tree” argument insofar as he maintains that the warrants lacked probable cause and, consequently, the electronic information obtained pursuant to the warrants was unlawfully acquired by the County Defendants and unlawfully provided by Sprint Nextel.
Given the nature of plaintiff's claims, any ruling in his favor on these claims would necessarily involve a determination that the warrant underlying his arrest was unlawful and, further, that the evidence used in connection with his conviction was illegally obtained. Accordingly, plaintiff's allegations fail to state a claim for relief because a ruling in his favor would necessarily cast doubt on the validity of his conviction and sentence in the Hamilton County Common Pleas Court for drug trafficking. See Heck, 512 U.S. 477, 487, 114 S.Ct. 2364 ; Cummings v. City of Akron, 418 F.3d 676, 682–83 (6th Cir.2005) ; Schilling v. White, 58 F.3d 1081, 1085–86 (6th Cir.1995).
In Heck, the Supreme Court ruled that a § 1983 civil rights action seeking money damages on the basis of an allegedly unconstitutional conviction or sentence will not lie unless the plaintiff has already succeeded in having the conviction or sentence invalidated. Heck, 512 U.S. at 486–87, 114 S.Ct. 2364. Under Heck, when a successful § 1983 civil rights action for damages would necessarily imply the invalidity of a plaintiff's conviction or sentence, the complaint must be dismissed unless the plaintiff demonstrates that the decision resulting in his confinement has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254. Heck, 512 U.S. at 486–87, 114 S.Ct. 2364 ; see also Edwards v. Balisok, 520 U.S. 641, 643, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997).
In contrast, where “the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed....” Heck, 512 U.S. at 487, 114 S.Ct. 2364. In illustrating such an action, the Heck Court explained:
For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiff's conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned).
Id. at 487, n. 7, 114 S.Ct. 2364 (emphasis in original) (internal citations omitted). Some courts have construed this footnote as creating an exception to Heck's requirement that a criminal conviction be invalidated before its constitutionality can be challenged under § 1983. See Beck v. City of Muskogee Police Dep't, 195 F.3d 553, 558, n. 3 (10 Cir.1999) ; Copus v. City of Edgerton, 151 F.3d 646, 648–49 (7th Cir.1998). However, the Sixth Circuit has “emphatically rejected” this interpretation in Schilling, 58 F.3d at 1086. See Bell v. Raby, No. 99–72917, 2000 WL 356354, at *6 (E.D.Mich. Feb. 28, 2000).
In Schilling, police officers responded to an accident scene involving the plaintiff's car and discovered drugs in the car. Plaintiff was charged with driving under the influence and subsequently pleaded guilty to driving under the influence. Plaintiff later brought a § 1983 suit for money damages against the officers for violating his Fourth Amendment rights based on the allegedly illegal search of his car. Id. at 1082–83. The District Court dismissed the § 1983 claims because the plaintiff's guilty plea and conviction had not been overturned.Id. The Sixth Circuit affirmed, reasoning as follows:
The fact that a Fourth Amendment violation may not necessarily cause an illegal conviction does not lessen the requirement that a plaintiff show that a conviction was invalid as an element of constitutional injury. The Court explicitly foreclosed this line of reasoning in Heck, when it concluded that because an illegal seizure does not automatically render a conviction invalid, an illegal seizure does not alone create a[n] injury compensable under § 1983.... [Footnote 7] of Heck plainly refutes the argument that Fourth Amendment claims are exempted from the requirement that a conviction must be set aside as a precondition for this type of § 1983 suit.
Schilling, 58 F.3d at 1086 (emphasis in original) (internal citations and quotations omitted). Therefore, the Sixth Circuit concluded that “no cause of action exists until [the plaintiff's] conviction is legally eliminated....” Id. at 1087.
Heck requires the same result here. It is clear from the face of the complaint that plaintiff's conviction and sentence have not been overturned or invalidated in accordance with Heck and Schilling and therefore plaintiff has not alleged an element of his constitutional claim. In addition, a successful challenge against defendants for their role in obtaining information and warrants leading to plaintiff's arrest, prosecution, and criminal conviction for drug trafficking would necessarily imply the invalidity of plaintiff's 2012 conviction and sentence. Therefore, plaintiff's claims for damages are barred by Heck. But see Brindley v. Best, 192 F.3d 525, 530–31 (6th Cir.1999) (finding that § 1983 claim alleging unlawful seizure was not barred by Heck because “the items which the plaintiffs in [Brindley ] claim were illegally seized were never the subject of criminal charges.”). Moreover, plaintiff's complaint demonstrates that he is in fact challenging the lawfulness of his conviction and sentence. See Doc. 3, ¶ 30 (plaintiff alleges that the acts and conduct of defendants constitute malicious prosecution and wrongful imprisonment). Heck does not permit plaintiff's claims so long as his conviction remains valid. Therefore, to the extent that plaintiff seeks to bring a cause of action under § 1983 attacking the validity of the searches and seizures of electronic information leading to his arrest or the constitutionality of his conviction, he has not stated a § 1983 claim upon which relief may be granted by this Court.
Plaintiff's complaint also fails to state claims for relief under the SCA, ECPA, or the Omnibus Act. The SCA “permits a ‘governmental entity’ to compel a service provider to disclose the contents of [electronic] communications in certain circumstances.” Warshak v. U.S., 532 F.3d 521, 523 (6th Cir.2008). One such circumstance is when the government has obtained a warrant. See 18 U.S.C. § 2703(a), (b). See also Guest v. Leis, 255 F.3d 325, 339–40 (6th Cir.2001) (“There is no violation of § 2703(a), (b), or (c) if access [to electronic communications] is pursuant to a warrant....”). Here, Sprint Nextel disclosed the electronic communications at issue to the County Defendants (and the other defendants) pursuant to warrants. Consequently, plaintiff's claim that the disclosure of this information was in violation of the SCA lacks merit and should be dismissed.
To the extent plaintiff alleges that defendants unlawfully obtained his cell phone subscriber information, account information, and electronic tracking information “absent probable cause, authorization, or warrant in violation of the SCA” (Doc. 3, ¶ 14), the complaint alleges legal conclusions that are insufficient to state a plausible claim for relief. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Moreover, plaintiff ignores the partial affidavit attached to the complaint, upon which plaintiff relies for his other claims, which alleges that such electronic information was obtained “[p]ursuant to a court order....” (Doc. 3, Ex. A, ¶ 25). Plaintiff's allegations are insufficient to state a claim for relief under the SCA.
The ECPA contains a similar provision and provides that a “good faith reliance on ... a court warrant or order ... is a complete defense against any civil or criminal action brought under this chapter or any other law.” 18 U.S.C. § 2520(d). Because the defendants in this case obtained and disclosed the electronic information at issue pursuant to court warrants and orders, they have an absolute defense against plaintiff's ECPA claim. Id. Therefore, plaintiff's ECPA claims against the County Defendants should be dismissed.
Likewise, plaintiff's Omnibus Act claims should be dismissed because the County Defendants obtained the electronic information that resulted in plaintiff's arrest and conviction pursuant to warrants. The Omnibus Act permits law enforcement agents to obtain wiretap authorization pursuant to a warrant that identifies the person whose communications are to be intercepted. See U.S. v. Kahn, 415 U.S. 143, 162, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). “The general rule of the [Omnibus] Act is that Government surveillance and/or wiretapping is permitted only upon the showing of probable cause and the issuance of a warrant.” U.S. v. Sinclair, 321 F.Supp. 1074, 1077 (E.D.Mich.1971). The warrants issued pursuant to Agent Lawson's affidavit explicitly identify plaintiff as an individual from whom communications were to be intercepted. See Doc. 3, Exhs. A–C. As the County Defendants acted pursuant to a warrant in obtaining electronic information from Sprint Nextel which led to plaintiff's arrest and conviction, plaintiff fails to state a claim against the County Defendants for violations of the Omnibus Act and his claims should be dismissed.
To the extent plaintiff argues that his allegations that defendants are engaged in unauthorized monitoring of the citizenry's public records, the undersigned finds that these claims lack plausibility. Plaintiff argues that Agent Lawson's affidavit establishes that the defendants are engaged in covert monitoring. Plaintiff's speculative interpretation of the affidavit is insufficient to state a claim for relief. The affidavit provides that Agent Lawson made “[a] query of public records and law enforcement data bases” and determined that a mobile phone number involved in drug trafficking belonged to plaintiff. See Doc. 3, Ex. A. Plaintiff argues that the phone he was using—the phone identified by Agent Lawson in the affidavit—had no associated subscriber information and, consequently, the only way Agent Lawson could have uncovered that it belonged to plaintiff was through the use of illegal monitoring. See Doc. 38 at 2. Plaintiffs arguments are speculative and, aside from his self-serving affidavit, lack supporting factual allegations such that they are implausible. See Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (courts are to draw on their judicial experience and common sense in assessing the plausibility of claims). In any event, even if the Court found plaintiffs claims plausible, they remain barred by Heck as his assertions that Agent Lawson and the other defendants acted unlawfully in obtaining the information leading to his arrest would necessarily call into question the validity of his arrest and conviction.
Finally, plaintiffs municipal liability claim alleges that Hamilton County has a custom, practice, or policy of allowing its employees to obtain private information in violation of constitutional and federal law. This claim also fails because plaintiffs conclusory allegations lack the factual content to allow the Court to reasonably infer that the County violated his rights and, in any event, a ruling in his favor would cast doubt on the legality of his conviction. Accordingly, plaintiff's § 1983 claims against the County Defendants should be dismissed.
The undersigned further recommends that, pursuant to United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), the Court decline to exercise its jurisdiction over plaintiffs pendent state law tort claims. See id. at 726, 86 S.Ct. 1130 (“if the federal claims are dismissed before trial ... the state claims should be dismissed as well.”). See also Hankins v. The Gap, Inc., 84 F.3d 797, 802–03 (6th Cir.1996) (courts should decline to exercise supplemental jurisdiction over state law claims where all federal claims have been dismissed before trial and the parties are non-diverse).
For the above reasons, the undersigned recommends that the County Defendants' motion to dismiss (Doc. 20) be GRANTED.
B. The City Defendants' Motion to Dismiss (Doc. 25).
The City Defendants also move under Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's complaint. (Doc. 25). The City Defendants join the County Defendants in their assertion that plaintiff's § 1983 claims for monetary damages are barred by Heck until his convictions are reversed. Agent Lawson further contends that he is entitled to qualified immunity from plaintiff's claims against him because his alleged conduct was performed within the scope of his employment; there was no violation of plaintiff's constitutional rights as his arrest was supported by probable cause; and his investigation into plaintiff's drug trafficking activity did not violate any clearly established law. The City of Cincinnati separately argues that plaintiff's § 1983 municipal liability claims against it must be dismissed because plaintiff has failed to establish a constitutional violation or the existence of an illegal custom or policy. (Doc. 25).
Plaintiff's memorandum in opposition largely reiterates the arguments he raised in opposition to the County Defendants' motion to dismiss. However, plaintiff presents a new argument in support of his SCA claim—that Agent Lawson's affidavit includes references to text messages that were less than 180 days old which, absent a warrant, constitutes a violation of the SCA. Plaintiff further argues that his claims under the Omnibus Act are viable given his allegations that the interception warrants were procured the day before Agent Lawson's affidavit was sworn; consequently, the electronic information obtained by the City Defendants was gathered in the absence of a warrant.
Plaintiff's complaint raises two distinct types of claims: (1) § 1983 constitutional violation and municipal liability claims; and (2) claims raised under SCA, ECPA, and the Omnibus Act. Plaintiff's § 1983 claims allege that the County and City Defendants are liable for violations of his First, Fourth, Fifth, and Fourteenth Amendment constitutional rights because they engaged in unlawful conduct in obtaining the electronic information resulting in his arrest and conviction.See Doc. 3, ¶ 25. Any finding in plaintiff's favor on these claims would require a concomitant determination that his arrest and conviction are unlawful. Accordingly, Heck mandates that plaintiff's claims be dismissed until such time as he can establish that his state court convictions have been set aside. Heck, 512 U.S. at 486–87, 114 S.Ct. 2364 ; Schilling, 58 F.3d at 1085–86.
The Court also finds that plaintiff's SCA, ECPA, and Omnibus Act claims against the City Defendants are also subject to dismissal for the reasons set forth above in connection with the County Defendants' motion to dismiss. Plaintiff asserts that the SCA claim should survive a motion to dismiss given his allegations that Agent Lawson violated the SCA by obtaining plaintiff's text message communications before the interception warrants were issued. (Doc. 39 at 3, citing Doc. 3, Ex. A). Review of Agent Lawson's affidavit in support of the interception warrants for plaintiff's mobile phone reveals that the text message communications at issue involve plaintiff's communications with an individual identified as Charlie Bennett. (Doc. 3, Ex. A at 1–3). Plaintiff has attached only a portion of Agent Lawson's affidavit and speculates that the text messages that were less than 180 days old were obtained without a warrant in violation of the SCA. Plaintiff fails to allege any factual basis for this allegation and from the context of the portions of the affidavit plaintiff supplied it appears that the text message communications obtained by Agent Lawson were obtained pursuant to a warrant issued in relation to the investigation of Mr. Bennett. See id. at 1, 3 (“... made efforts to identify individuals that the Bennett phone had contact with.... Analysis of the text messages between Bennett cellular phone [ ] and Chapman cellular phone [ ] indicated that Bennett and Chapman utilized text messaging to communicate about drug trafficking activity.... The arrest of Charlie Bennett failed to develop additional investigative leads [in the] investigation involving the Charlie Chapman organization.”). As stated above, there is no violation of the SCA where electronic information is obtained from service providers pursuant to a warrant. See 18 U.S.C. § 2703(a), (b). See also Guest, 255 F.3d at 339–40. In any event, plaintiff's speculative assertion that there was no warrant is without a factual basis to state a plausible claim for relief.
Plaintiff also asserts that Agent Lawson's violation of the Omnibus Act “is evidenced by the issuance of the interception warrant on November 7, 2012(sic) [24 hours] prior to [Agent Lawson's a]ffidavit being subscribed and sworn to on November 8, 2012.” (Doc. 39 at 6, citing Doc. 3, Exhs. A–C). Plaintiff is correct that the typewritten date identified on the warrants is November 7, 2011, whereas the affidavit was signed and sworn on November 8, 2011. See Doc. 3, Exhs. A–C. However, this distinction does not support a finding that the warrants lack probable cause or that the defendants unlawfully obtained the electronic information at issue. Notably, the date lines on the interception warrants are typed in contrast to the handwritten date on the affidavit. See id. It is reasonable to conclude that while the warrants were typed on November 7, 2011, they were not executed until the following day—the same day the affidavit was signed and sworn by Agent Lawson in front of Judge Helmich. This conclusion is further supported by the fact that the affidavit was signed and sworn at 11:10 a.m., and the interception warrants were signed at 11:12 a.m. and 11:13 a.m., respectively.See id. This interpretation of plaintiffs exhibits, based on the undersigned's “judicial experience and common sense” in the way criminal search warrants are executed, Iqbal, 556 U.S. at 679, 129 S.Ct. 1937, supports a finding that the electronic information was lawfully obtained by defendants pursuant to a warrant and, consequently, plaintiff's Omnibus Act claim fails. Even assuming that plaintiff is correct, his Omnibus Act claim still fails because the warrants were not executable until 3:00 p.m. on November 8, 2011, after the affidavit had been sworn and signed. See Doc. 3, Ex. B, ¶¶ 11, 13; Doc. 3, Ex. C, ¶¶ 11, 13. Accordingly, the electronic information acquired from Sprint Nextel by the City Defendants was lawfully obtained pursuant to a warrant. See Kahn, 415 U.S. at 162, 94 S.Ct. 977. For these reasons and those stated above in connection with the County Defendants' motion to dismiss, plaintiff's SCA, ECPA, and Omnibus Act claims against the City Defendants should be dismissed.
The undersigned further recommends that the Court decline to exercise supplemental jurisdiction over plaintiff's state law claims against the City Defendants. See United Mine Workers, 383 U.S. at 726, 86 S.Ct. 1130 ; Hankins, 84 F.3d at 802–03.
For the above reasons, the undersigned recommends that the City Defendants' motion to dismiss (Doc. 25) be GRANTED.
C. Sprint Nextel's Motion to Dismiss (Doc. 21).
Sprint Nextel brings its motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(5). Sprint Nextel moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(5) for insufficient service of process. Sprint Nextel maintains that plaintiff improperly named “Sprint Spectrum L.P./Sprint Inc./ Nextel West Corporation” as a defendant in his complaint; however, plaintiff did not attempt to serve Sprint Spectrum L.P. with the complaint. Rather, plaintiff attempted to serve process on “Sprint Nextel West Corporation.” Sprint Nextel asserts that Sprint Nextel West Corporation and Sprint Spectrum L.P. are non-existent entities that have no legal capacity to be sued and, accordingly, plaintiff cannot effect service on either. Sprint Nextel also moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. Specifically, Sprint Nextel asserts that it should be dismissed because is not a proper defendant in this case as “Sprint Nextel Corporation,” the entity plaintiff attempted to serve, is merely a holding company with no contacts in Ohio. Sprint Nextel therefore maintains that plaintiff's claims against it should be dismissed for lack of personal jurisdiction. (Doc. 21).
In his response in opposition, plaintiff concedes that he named several Sprint conglomerates “out of futility” and due to his limited access to information. However, plaintiff contends that his failure to name the proper Sprint entity as a defendant does not warrant dismissal of his claims under Fed.R.Civ.P. 12(b)(5) because he can properly effect service and requests additional time to do so. Plaintiff also maintains that Sprint Nextel's motion to dismiss under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction is without merit as Sprint Nextel, the entity he intended to serve, has sufficient contacts in the State of Ohio as a provider of cellular and remote services to establish personal jurisdiction. Plaintiff also disputes Sprint Nextel's assertion that “Sprint Nextel Corporation” is merely a holding company, noting that it was the entity named in the interception warrants. (Doc. 37).
Plaintiff also cites to “Datascape, Inc. v. Sprint Nextel Corp., 2008 U.S. Dist. LEXIS 124238” to support his contention that “Sprint Nextel” is not just a holding company. See Doc. 37 at 4. However, the court in Datascape found that it did not have personal jurisdiction over defendant Sprint Nextel Corporation and granted its Fed.R.Civ.P. 12(b)(2) motion to dismiss. See Datascape, Inc. v. Sprint Nextel Corp., No. 1:07–cv–640, 2008 U.S. Dist. LEXIS 124238, at *23 (N.D.Ga. Sept. 29, 2008). The district court found that while evidence from Sprint Nextel's website suggested that it was more than a holding company, this was not enough to justify exercising personal jurisdiction over it because “a company's mere operation of a commercially interactive website is not by itself an adequate basis for the exercise of personal jurisdiction anywhere the site can be viewed.” Id., at *18–19 (citing cases).
A determination as to whether personal jurisdiction exists over Sprint Nextel is properly made in this case without an evidentiary hearing because the essential facts underlying the issue of personal jurisdiction are not disputed. See Conti v. Pneumatic Products Corp., 977 F.2d 978, 980 (6th Cir.1992). Accordingly, plaintiff need only make a prima facie showing of personal jurisdiction over Sprint Nextel.
To demonstrate personal jurisdiction exists over Sprint Nextel, plaintiff relies on subsection (A)(1) of Ohio's long-arm statute, which provides that the Court may exercise personal jurisdiction over “a person who acts directly or by an agent, as to a cause of action arising from the person's ... [t]ransacting any business in this state....” Ohio Rev.Code § 2307.382(A)(1). Plaintiff asserts that Sprint Nextel transacted business in the State of Ohio by furnishing records to the County and City Defendants and by requesting compensation for same. Plaintiff supports his assertion with citation to the interception warrants wherein the issuing judge ordered that “[a]nyone providing assistance pursuant to [the warrants] shall be compensated at the prevailing rates for the assistance provided.” See Doc. 3, Exhs. B and C at ¶ 17. Plaintiff further contends that Sprint Nextel has sufficient contacts with the State of Ohio by way of its surreptitious involvement with local governments such that this Court has personal jurisdiction over it.
The unrefuted assertions set forth in the affidavits provided by Sprint Nextel make clear that Sprint Nextel's contacts with Ohio do not satisfy the Ohio long-arm statute or the requirements of the federal due process clause for the exercise of personal jurisdiction.
Sprint Nextel has submitted two affidavits from Stefan K. Schnopp, the Assistant Secretary for Sprint Communications, Inc. f/k/a Sprint Nextel Corporation. (Doc. 21, Ex. 1, Schnopp Aff.; Doc. 40, Ex. 1, Second Schnopp Aff.). Mr. Schnopp attests that Sprint Communications is primarily a holding company of securities with its principal place of business in Overland Park, Kansas, and that it has not conducted any business in Ohio, collected Ohio sales tax, filed Ohio tax returns, or pay any other taxes in Ohio. (Schnopp Aff., ¶¶ 4, 6). Mr. Schnopp further attests that Sprint Communications does not: conduct any business in Ohio; have a registered agent in Ohio; have any offices or employees in Ohio; own or lease property in Ohio; or maintain any corporate records in Ohio. (Id., ¶¶ 5, 7). Mr. Schnopp also declares that Sprint Communications does not have a subsidiary named “Sprint Inc.”; that Sprint Spectrum L.P. and Nextel West Corporation exist as separate entities and not as one entity as alleged by plaintiff; and that there have never been any entities named “Sprint Spectrum L.P./Sprint Inc./Nextel West Corporation” or “Sprint Nextel West Corporation” as plaintiff alleges in his complaint and that “Sprint Communications does not have a subsidiary named Sprint Inc. Sprint Inc. is a non-legal entity and, to the best of my information, knowledge, and belief, has never existed in any legal capacity.” (Id., ¶ 8). In his second affidavit proffered in connection with Sprint Nextel's reply brief, Mr. Schnopp attests that Sprint Communications has never and does not currently provide telecommunications services in Ohio or elsewhere; Sprint Communications has subsidiaries that provide telecommunications services, but these are separate and distinct entities from Sprint Communications; and the subsidiaries of Sprint Communications that provide telecommunications maintain books, accounts, and records separate and apart from those of Sprint Communications. (Doc. 40, Ex. 1, ¶¶ 4–6, Second Schnopp Aff.).
Plaintiff has not proffered any evidence which refutes Mr. Schnopp's attestations. To the extent plaintiff argues that the Hamilton County Court of Common Pleas' order requiring that anyone providing assistance in obtaining the information described in the warrants be compensated at prevailing rates, this broad payment provision is not specific to Sprint Nextel nor does it speak to Sprint Nextel's form as a legal entity or its contacts with the State of Ohio. This evidence therefore fails to contradict Sprint Nextel's supported assertions that this Court lacks personal jurisdiction over it. Further, plaintiffs unsupported speculation that Sprint Nextel is involved in surreptitious activity with the County and City Defendants is insufficient to establish personal jurisdiction. See Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir.1991) (“in the face of a properly supported motion for dismissal [for lack of personal jurisdiction], the plaintiff may not stand on his pleadings but must, by affidavit or otherwise, set forth specific facts showing that the court has jurisdiction.”) (internal citation omitted). In the absence of any specific factual showing that this Court may properly exercise personal jurisdiction over Sprint Nextel or any Sprint entity identified in plaintiff's complaint, a finding of personal jurisdiction would not comport with the requirements of due process. See Conn, 667 F.3d at 712 (citing Third Nat'l Bank v. WEDGE Group, Inc., 882 F.2d at 1089 ) (quoting Int'l Shoe Co., 326 U.S. at 316, 66 S.Ct. 154 ) (plaintiff must put forth specific allegations demonstrating that the requirements for long-arm jurisdiction have been met under the Ohio statute or that Sprint Nextel had sufficient “minimum contacts” with Ohio such that a finding of personal jurisdiction does not “offend traditional notions of fair play and substantial justice.”). The undersigned therefore finds that this Court lacks personal jurisdiction and that Sprint Nextel's Fed.R.Civ.P. 12(b)(2) motion to dismiss should be granted.
The Court further finds that Sprint Nextel's Fed.R.Civ.P. 12(b)(5) motion to dismiss is well-taken. Review of the docket in this matter establishes that plaintiff attempted to serve “Sprint Nextel Corporation at 6200 Sprint Parkway, Overland Park, KS 66251.” (Doc. 28 at 1–2, United States Marshals Service Process Receipt and Return form and signed U.S. Post Certified Mail receipt). However, Mr. Schnopp's unrefuted attestations establish that there is no entity known as “Sprint Nextel Corporation” and that the entity located in Overland Park, Kansas is not Sprint Nextel Corporation but “Sprint Communications,” a holding company. (Schnopp Aff., ¶¶ 4, 8). Given this uncontroverted affidavit evidence, the Court finds that plaintiff has failed to meet his burden of establishing the valid service upon Sprint Nextel. See Metro. Alloys Corp., 416 F.Supp.2d at 563. As plaintiff has failed to show that he has effected service of process on the proper Sprint entity, dismissal for insufficient service of process is appropriate.
The Court recognizes that plaintiff's inability to establish personal jurisdiction or effect proper service results from his failure to identify the proper Sprint entity in his complaint and his misplaced reliance on the interception warrants' identification of said entity as “Sprint Nextel Corporation.” Plaintiff himself recognizes the deficiency of his pleading and seeks leave to amend his complaint to name the proper Sprint entity and effect proper service upon it.See Doc. 37 at 1.
Fed.R.Civ.P. 15 grants a court discretion to permit a plaintiff to file an amended complaint. Leave may be denied if the proposed amendment would be futile in as much as it would not withstand a motion to dismiss under Rule 12(b)(6). See Commercial Money Center, Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 346 (6th Cir.2007).
Granting plaintiff leave to amend his complaint to identify the proper Sprint entity would be futile. Plaintiff's SCA, ECPA, and Omnibus Act claims against Sprint Nextel stem from its sharing of information related to plaintiff's mobile phone with the County and City Defendants pursuant to the interception warrants issued from the Hamilton County Court of Common Pleas. Because the electronic information provided to the City and County Defendants was disclosed pursuant to valid warrants, plaintiff cannot state a claim under the SCA, ECPA, or Omnibus Act against the disclosing Sprint entity. See 18 U.S.C. § 2703(a), (b) ; 18 U.S.C. § 2520(d). See also Warshak, 532 F.3d at 523 ; Guest, 255 F.3d at 339–40 ; Kahn, 415 U.S. at 162, 94 S.Ct. 977 ; Sinclair, 321 F.Supp. at 1077. Therefore, allowing plaintiff to amend his complaint would be futile regardless of whether he is able to identify the Sprint entity that disclosed his mobile phone information to the City and County Defendants. IT IS THEREFORE RECOMMENDED THAT:
(1) The defendants' motions to dismiss (Docs. 20, 21, 25) be GRANTED and that plaintiffs claims under § 1983, the SCA, the ECPA, and the Omnibus Act be DISMISSED with prejudice;
(2) Plaintiffs state law claims be DISMISSED without prejudice; and
(3) The Court certify pursuant to 28 U.S.C. § 1915(a)(3) that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir.1997).
Date: 7/16/14.