2018 Ohio 2971
Ohio Ct. App.2018Background
- Plaintiff Lamone Upkins, pro se, sued Miami County Prosecutor Lenee Brosh and Deputy Sheriff J.J. Bubeck under 42 U.S.C. § 1983 alleging malicious prosecution arising from a January 22, 2016 stop, an allegedly illegal vehicle search, and subsequent misdemeanor OVI/DUS charges; he sought monetary damages.
- Defendants moved to dismiss for lack of jurisdiction; the trial court granted the motion on October 24, 2017 with a boilerplate entry stating the motion was granted for "good cause shown."
- Upkins filed a pro se Civ.R. 60(B) motion (raising subsections (1), (3), and later relying on (5)) arguing he was not served with the dismissal motion, the dismissal lacked a stated rationale, and he should be allowed to amend his complaint; he attached an affidavit swearing nonreceipt of the dismissal motion.
- The trial court denied relief under Civ.R. 60(B), finding Upkins failed to plead operative facts establishing entitlement to relief, failed to show mistake, fraud, or other grounds under the rule, and noting the issues could have been raised on direct appeal.
- On appeal, this Court affirmed, holding Upkins’ arguments fell within matters that should have been raised on direct appeal and that Civ.R. 60(B) may not be used as a substitute for appeal; therefore the trial court did not abuse its discretion in denying relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to serve plaintiff with the motion to dismiss justified relief under Civ.R. 60(B) | Upkins: he never received the defendants’ motion and thus was deprived of opportunity to respond; affidavit unchallenged | Defs: service disputes do not establish entitlement to 60(B) relief; plaintiff could have appealed | Court: No—service complaint did not establish a ground for 60(B) relief; issue could have been raised on direct appeal |
| Whether the complaint stated a meritorious claim for malicious prosecution | Upkins: complaint (and proposed amended complaint) alleges malice, lack of probable cause, and favorable termination | Defs: claim failed as pleaded and prosecutorial immunity may apply; plaintiff did not plead operative facts | Court: Plaintiff failed to show a meritorious claim sufficient for 60(B) relief |
| Whether Civ.R. 60(B)(5) can be used to correct alleged plain error by a visiting judge or to substitute for appeal | Upkins: 60(B)(5) appropriate to correct unfair judgment and substitute for appeal due to procedural defects | Defs: 60(B) cannot be used in lieu of direct appeal; relief unavailable for issues apparent on record | Court: 60(B) cannot substitute for direct appeal; relief unavailable where errors were apparent and appealable |
| Whether the trial court abused its discretion by denying the 60(B) motion | Upkins: denial was prejudicial and arbitrary given unchallenged affidavit and lack of rationale in dismissal entry | Defs: trial court properly exercised discretion; plaintiff delayed and could have appealed | Court: No abuse of discretion; denial affirmed |
Key Cases Cited
- GTE Automatic Elec., Inc. v. ARC Indus., 47 Ohio St.2d 146 (trial-court standard for Civ.R. 60(B) relief requires meritorious claim, entitlement to relief, and reasonable time)
- Griffrey v. Rajan, 33 Ohio St.3d 75 (Civ.R. 60(B) is reviewed for abuse of discretion)
- State v. Ishmail, 54 Ohio St.2d 402 (appellate courts may not consider materials not in the trial-court record)
- Key v. Mitchell, 81 Ohio St.3d 89 (Civ.R. 60(B) may not be used as a substitute for a direct appeal)
- Colley v. Bazell, 64 Ohio St.2d 243 (Civ.R. 60(B)(5) cannot be used in place of other specific 60(B) provisions or as substitute for appeal)
- Caruso-Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64 (limitations on use of Civ.R. 60(B)(5) to obtain relief)
- Miamisburg Motel v. Huntington Natl. Bank, 88 Ohio App.3d 117 (discussing limits on Civ.R. 60(B) relief)
- Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83 (definition of abuse of discretion as unreasonable, arbitrary, or unconscionable)