Opinion
Case No. 3:01CV7221
January 22, 2002
ORDER
This is a civil rights case in which plaintiff alleges that defendants violated 42 U.S.C. § 1983 and the First, Fourth, and Fourteenth Amendments. Plaintiff alleges the Metro-Drug Task Force of the Toledo Police Department searched a vehicle without probable cause while plaintiff was a front seat passenger. Plaintiff also alleges that Defendant, Sergeant Lou Vasquez, failed to comply with the requirements of Ohio's "reverse buy" statute, R.C. § 3719.141, in violation of 42 U.S.C. § 1983. Plaintiff seeks an injunction prohibiting defendants from engaging in any further "reverse buys" and requiring defendants to comply with all warrant and exigent circumstance requirements under law. Jurisdiction arises under 28 U.S.C. § 1441. Pending is defendants' motion for summary judgment. For the following reasons, defendants' motion shall be granted.
BACKGROUND
In early July 1998, a confidential informant, hereinafter "C.I.," told Sergeant Lou Vasquez of the Toledo Police Department that Plaintiff, Robert Manning, was interested in purchasing some cocaine from him. In response, Sergeant Vasquez prepared to conduct a "reverse buy" pursuant to Revised Code § 3719.141. The police applied for and were granted authority by the Lucas County Prosecuting Attorney to use 1922.85 grams of cocaine from police property to conduct the "reverse buy."
A "reverse buy" occurs when a law enforcement agent is the seller of the drugs as opposed to the buyer. In synthesizing R.C. § 3719.141, the common pleas court in the criminal action set forth four conditions for compliance of R.C. § 3719.141:
(1) prior approval by the prosecuting attorney, (2) prior adoption by the police department of a written internal control policy, (3) acquisition of the drugs by the purchaser in the presence of the peace officer who makes the sale, and (4) either an arrest of the purchaser and the seizure of the drugs or a reasonable, good faith effort to arrest the purchaser and seize the drugs.
State v. Manning, No. CR98-2818 (Ct. Com. Pl. Lucas County filed Apr. 9, 1999) (Doc. 9 Ex. 1 at 4-5).
On July 30, 1998, Manning and the C.I. were scheduled to meet at the Holiday Inn on Reynolds Road, in Toledo, Ohio, to execute the "buy" of cocaine. Approximately fifteen surveillance officers from the Metro-Drug Task Force and Toledo Police Department were in place to witness the "buy." Manning, however, was unwilling to purchase the drugs in the parking lot of the Holiday Inn. Manning instead traveled to the Comfort Inn Motel in Maumee, Ohio, where he had a room. At this location Manning gave the C.I. twenty-thousand dollars ($20,000) to buy one kilogram of cocaine. The C.I. returned to the Holiday Inn and gave Sergeant Vasquez the $20,000 he had just received from Manning. While at the Holiday Inn, the C.I. telephoned Manning requesting that he come to the Holiday Inn and pick up the drugs. Manning, however, again did not agree. The surveillance officers and the C.I., subsequently, drove to the Comfort Inn.
At the Comfort Inn, an agreement was made between the C.I. and Manning to complete the "reverse buy" transaction. The C.I. was to place the drugs Manning had purchased in the trunk of a vehicle owned by Lisa Altomare but driven by Manning previously that day. After receiving the keys from Manning, the C.I. placed the kilogram of cocaine in the trunk of the car. Shortly thereafter, Manning and Altomare left the Comfort Inn and got into the car holding the drugs. Altomare was the driver, and Manning was a front seat passenger. While attempting to depart the Comfort Inn, police surrounded the vehicle. Officers placed Altomare and Manning under arrest and seized the cocaine from the trunk.
Manning pled not guilty and filed a motion to suppress the cocaine on the grounds that the seizure was the result of an unconstitutional, warrantless search of the car. Manning argued that the "reverse buy" statute was not complied with, no exigency existed, and alternatively, the police created the exigency that allegedly justified the search. Upon denial of this motion, Manning changed his plea to no contest. Under Ohio R. Crim. P. 11(C), the court accepted Manning's plea of no contest and proceeded to sentencing. As a result, Manning was found guilty of possession of cocaine in violation of R.C. § 2925.011(A) and (C)(4)(e).
Manning, subsequently, appealed the trial court's suppression denial. On July 28, 2000, the Ohio Court of Appeals for the Sixth Appellate District affirmed the lower court judgment. On December 6, 2000, the Ohio Supreme Court declined to hear the case.
This case was initiated on April 6, 2001 when Manning filed a complaint in the Common Pleas Court of Lucas County, Ohio, naming as Defendants, Ohio Attorney General, Betty D. Montgomery, City of Toledo Department of Public Safety Director, Michael Justen, City of Toledo Police Department Chief of Police, Michael Navarre, City of Toledo Law Department Director, Barbara E. Herring, Jane Doe, and John Doe. On May 4, 2001, all specifically named defendants, filed a notice of removal with this court.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleading or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324. In deciding the motion for summary judgment, the evidence of the non-moving party will be believed as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992).
Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).
DISCUSSION
I. Standing
Defendants contend that plaintiff lacks standing to obtain his requested relief in this court. I agree.
Persons invoking the jurisdiction of the federal courts must satisfy Article III of the Constitution by alleging an actual case or controversy. See Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). An actual case or controversy is characterized by a "personal stake in the outcome" of the lawsuit; this requirement assures that constitutional issues will be presented only when ripe for resolution. See Baker v. Carr, 369 U.S. 186, 204 (1962). "[T]he standing inquiry requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." See Allen v. Wright, 468 U.S. 737, 752 (1984).
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and footnote omitted), the Supreme Court articulated a three-part test for a party to have standing:
Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered "injury in fact" — an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) "actual or imminent, not `conjectural' or `hypothetical'". . . . Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court." . . . Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Plaintiff must show that "`he has sustained or is immediately in danger of sustaining some direct injury'" as a result of the challenged conduct. Id. at 574 (citing Massachusetts v. Mellon, 262 U.S. 447, 488-89 (1923)). The United States Supreme Court has stated, "[T]he injury or threat of injury must be both `real and immediate,' not `conjectural' or `hypothetical.'" City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (citations omitted). The Supreme Court also stated, "Abstract injury is not enough." Id. at 101. The injury, furthermore, must be one that is "`fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.'" Kardules v. City of Columbus, 95 F.3d 1335, 1352 (6th Cir. 1996) (quoting Allen, 468 U.S. at 751).
Plaintiff alleges an unlawful search violated his constitutional rights because police officers failed to comply with Ohio's "reverse buy" statute, R.C. 3719.141. Plaintiff asks this court to: 1) declare unconstitutional Ohio's "reverse buy" statute; 2) hold unlawful the police officers' actions; 3) issue an injunction prohibiting defendants from engaging in any further "reverse buys" and; 4) issue an order mandating that defendants comply with all warrant requirements under law.
Defendants argue that plaintiff does not have standing to obtain injunctive relief or a declaratory judgment because plaintiff has not met the standards set forth by the United States Supreme Court. Defendants contend that plaintiff lacks standing because he has failed to demonstrate that he will, in the future, be the target of a "reverse buy" transaction with the Toledo Metro Drug Task Force and/or the Toledo Police.
Plaintiff claims that the injury justifying his standing is the possibility that he will "become a repeat victim, whenever an informant presenting a reverse drug buy with a taint upon a [sic] entrapment for private gain or reward." (Doc. 13 at 7). Plaintiff further claims that he has standing because he was a passenger in an automobile that underwent an illegal search.
Plaintiff's claim that he will become a repeat victim whenever an informant presents a reverse drug buy that has a taint of entrapment is mere "conjecture" with no clear injury. Plaintiff's argument is that every time the police conduct a "reverse buy," even if he is not the focus of the bust, he will undergo an injury. This unforeseeable injury is clearly hypothetical and abstract — the very type of injury Lyons intended to prohibit in prong one of its test. The injury, furthermore, that plaintiff alleges he will sustain is an injury traced to a third-party's allegedly unlawful conduct. This injury is not within the purview of the standards set forth by the Supreme Court. The inquiry for whether there is a threat of repeated injury is based on reality not plaintiff's "subjective apprehensions." Lyons, 461 U.S. at 107 n. 8.
Plaintiff appears to argue he will become a repeat victim by participating in a future reverse drug buy that has a taint of entrapment. This argument is not well-taken. The only way such a future event could take place is if plaintiff involved himself in another illegal purchase of drugs from police. This court will assume that plaintiff will act in a lawful manner and avoid consequences under the "reverse buy" statute. To do otherwise would undermine the core of the criminal justice system by presuming, in effect, and in advance, plaintiff will undertake further criminal acts while the police will choose to investigate by means of a reverse buy.
The only real injury that plaintiff can argue as a basis for standing is his involvement in the "reverse buy" on July 30, 1998. A past wrong, however, is relevant only in whether there is a real threat of repeated injury. Lyons, 461 U.S. at 102; O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974). A past harm, by itself, is not sufficient to show a likelihood of future injury. Id.
Plaintiff alternatively contends that his standing in this case is justified on the grounds that his pending habeas corpus petition, Manning v. Wolfe (Case No. 3:01 CV 7136), if successful, may result in a re-trial. Plaintiff's argument attempts to reason that during his possible re-trial he will be in immediate danger of being injured again by Ohio's "reverse buy" statute. Pursuant to the law and rationale set forth above, this argument does not pass the test for determining "injury" for standing purposes. See Lujan, 504 U.S. at 560-61; Lyons, 461 U.S. at 101-02; and Golden v. Zwickler, 394 U.S. 103, 110 (1969) ("The constitutional question . . . must be presented in the context of a specific live grievance."); Johnson v. Turner, 125 F.3d 324, 336 (6th Cir. 1997) (citing Lyons, 461 U.S. at 107-09) (Even though the plaintiff had suffered actual harm and could presumably recover damages under § 1983, he could not demonstrate a case and controversy that would justify the relief requested because standing to seek the injunction required a greater likelihood that he would suffer future injury.). Plaintiff finally argues that he has standing because he was a passenger in an illegally searched vehicle. This argument, however, is misplaced. This type of standing arises when an individual moves to suppress evidence arguably obtained when police violated the movant's Fourth Amendment rights. See, e.g., Rakas v. Illinois, 439 U.S. 128 (1978). Plaintiff should have addressed this issue in state court when he filed his motion to suppress. Here, we must ask whether plaintiff can present a case and controversy before this court on the claims set forth in his complaint. Plaintiff, as shown above, cannot do so.
As defendants assert, Manning will not truly be "re-tried" because in the first case, his guilt was established with a plea of no contest.
It is assumed plaintiff is making this contention pursuant to Rakas v. Illinois, 439 U.S. 128 (1978).
Rakas, supra, articulated the inquiry made in deciding if an individual can move to suppress evidence based on a Fourth Amendment argument. A court should focus specifically on the substantive question of whether an individual had a reasonable expectation of privacy in the place or thing searched by police. Id. at passim.
I find, therefore, that plaintiff has no standing to seek a declaratory judgment or an injunction.
II. Collateral Estoppel
Even if plaintiff could have established that he had suffered an injury, that injury was related directly to the conduct complained of, and his injury was redressable, plaintiff's claims are barred by collateral estoppel.
Defendants argue that plaintiff's claims are barred by collateral estoppel. I agree. Title 28 U.S.C. § 1738 provides that authenticated records and judicial proceedings of any court of any state "shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such state. . . ." The rules of the state that rendered a judgment govern the preclusive effect given to that judgment. Kremer v. Chemical Const. Corp., 456 U.S. 461, 466 (1982). This principle applies to an action brought under § 1983 whether the preclusive effect relates to res judicata, otherwise known as claim preclusion, or collateral estoppel, otherwise known as issue preclusion. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 80-85 (1984); Allen v. McCurry, 449 U.S. 90, 94-105 (1980).
Res judicata precludes parties or their privies from relitigating issues that were or could have been raised in a prior action where a final judgment on the merits was declared. See Nevada v. United States, 463 U.S. 110, 130 (1983); McCurry, 449 U.S. at 94; Cromwell v. County of Sac, 94 U.S. 351, 352 (1876). Thus, once a court has decided an issue of law or fact necessary to its judgment, that decision precludes a party, bound by the decision in the first proceeding, from relitigating the decided issue in a later suit, even when pursuing a different cause of action. See Parklane Hosiery Co. Inc. v. Shore, 439 U.S. 322, 326 n. 5 (1979). Issue preclusion is the only principle at issue in this case.
Commentators have used the term "res judicata" as a central term referring to the doctrines of res judicata, claim preclusion, collateral estoppel, and issue preclusion. See Migra, 465 U.S. at 77 n. 1; Goodson v. McDonough Power Equip. Inc., 2 Ohio St.3d 193, 195 (1983). "Res judicata," for the purposes of this order, only refers to claim preclusion.
Plaintiff requests, in part, that this court declare that: 1) the Toledo Police Department and the Metro Drug Task Force violated his Fourth Amendment right to be free from unreasonable searches and seizures; and 2) Sergeant Lou Vasquez did not comply with R.C. § 3719.141. These are the same arguments as those plaintiff presented at his criminal trial in state court. Defendants argue collateral estoppel is applicable because the arguments presented to this court are the same as those raised in the prior action.
A federal court must use the rules of res judicata and collateral estoppel from the state of the initial judgment. See Kremer, 456 U.S. at 481-82; and McCurry, 449 U.S. at 96. For a party to assert collateral estoppel, it must prove that the issues: 1) are identical; 2) were actually litigated; 3) were directly determined; and 4) were essential to the judgment in the prior action. See Buckeye Union Ins. Co. v. New England Ins. Co., 87 Ohio St.3d 280, 287 (1999) (citing Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 201 (1983)).
It is clear that plaintiff is attempting to re-establish that he was the victim of an unconstitutional search and seizure pursuant to Ohio's "reverse buy" statute. Plaintiff's complaint and brief contain extensive allegations that defendants' actions were unconstitutional and resulted in an illegal search and seizure. He made the same assertions in the state proceeding. Plaintiff presented these arguments to the state trial court attempting to suppress evidence obtained in the "reverse buy." The issues, thus, are identical.
The next issue, pursuant to Goodson, is whether the issues were actually litigated and directly determined. Goodson, 2 Ohio St. 3d at 201.
The constitutionality of the search was actually litigated at the state level. Plaintiff submitted documentation and attempted to have evidence suppressed. The trial and appellate courts heard, weighed, and considered these arguments in denying plaintiff's motion to suppress. The constitutionality of the search, thus, was directly addressed and adjudicated in the trial court's denial of the motion to suppress the evidence and the appellate decision affirming the trial court.
To allow plaintiff to reargue before this court that the search of the vehicle and defendants' actions were unconstitutional would give him a second bite at the apple. Plaintiff had his opportunity to litigate those issues fully and fairly. As the court stated in Hickman v. Comm'r, 183 F.3d 535, 537 (6th Cir. 1999), "[O]ne fair opportunity to litigate an issue is enough."
The remaining issue under Goodson is whether the validity of the search of the vehicle occupied by plaintiff was "essential" to the judgment at the state level. On denial of his motion to suppress, plaintiff withdrew a plea of not guilty and knowingly, intelligently, and voluntarily entered a plea of no contest. The court reviewed the facts and accepted the plea. The case itself, however, is not what needs to be "actually litigated." The issue that needs to be actually litigated for collateral estoppel purposes is the constitutionality of the July 30, 1998 search. As discussed, the constitutionality of the search, despite the no contest plea, was litigated vigorously by plaintiff through appellate review.
Plaintiff does not argue that he was denied a full and fair opportunity to litigate his position. Plaintiff also does not identify specifically any deficiency in the proceedings. Plaintiff is simply attempting to reargue his challenge to the actions of the police on July 30, 1998. Plaintiff's unhappiness with the state courts' rulings does not entitle him to forum-shop until he obtains a favorable result.
The merits of plaintiff's assertion that the actions of the Toledo Police Department violated his Fourth Amendment right to be free from unlawful searches and seizures cannot, therefore, be addressed. That issue was decided by the state courts. The state court judgment is binding on plaintiff in this court under collateral estoppel principles. Defendants' motion for summary judgment shall be, therefore, granted.
Because plaintiff's claims shall be dismissed under collateral estoppel, defendants' remaining arguments in favor of summary judgment will not be addressed.
III. Rush to Judgment
Throughout plaintiff's brief, plaintiff asserts that defendants are forum-shopping and rushing to judgment by removing this case from the state court. Title 28 U.S.C. § 1446(b) states that a notice of removal shall be filed within thirty days after defendant received service of process of the initial proceeding. Defendants complied with this rule. Plaintiff essentially asserts that defendants are rushing to judgment and forum-shopping because of their strict obedience to the proper laws of removal. This argument is not well-taken: plaintiff elected to assert a federal claim, and the defendants elected to assert the right that thereby arose, to have that claim heard here.
IV. Plaintiff's Remaining Claims
It appears from the complaint that plaintiff is attempting to make an overbreadth and/or vagueness claim. The wherefore clauses of the complaint contain statements that the "reverse buy" statute is both vague and overbroad.
A § 1983 claim must contain more than conclusory allegations. See Williams v. Siler, No. 83-5089, 1984 U.S. App. LEXIS 14416, at *2 (6th Cir. 1984) (citing Blackburn v. Fisk Univ., 443 F.2d 121, 124 (6th Cir. 1971)). While a court must hold a pro se plaintiff to less stringent standards than the standards required of an attorney, a plaintiff must set forth some factual basis for the claims in the pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Plaintiff's conclusory statement that the statute "creat[es] an unconstitutionality on overbreadth and vagueness in operations" is not a sufficient basis for an overbreadth or vagueness claim. Because plaintiff has not alleged a clear factual basis and has only made the conclusory statement that the statute is vague and overbroad, the argument that Ohio's "reverse buy" statute is vague and overbroad is unfounded and therefore could not be analyzed, even if plaintiff had standing to challenge the statute.
CONCLUSION
Plaintiff is not entitled to relief: his motion for an injunction shall be denied, and defendant's motion for summary judgment will be granted. Further, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.
It is, therefore,
ORDERED THAT
Defendants' motion for summary judgment be, and hereby is, granted; plaintiff's motion for injunctive relief is denied.
So ordered.