[Cite as Jenkins v. Cleveland, 2019-Ohio-458.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107135
ANDRE JENKINS
PLAINTIFF-APPELLANT
vs.
CITY OF CLEVELAND, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-854094
BEFORE: Boyle, P.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: February 7, 2019
ATTORNEYS FOR APPELLANT
James R. Willis
614 W. Superior Avenue, Suite 1144
Cleveland, Ohio 44115
Clarissa Smith
C.A. Smith Law Office, L.L.C.
1801 Euclid Avenue, Suite A075
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEES
For City of Cleveland, et al.
Barbara A. Langhenry
Director of Law
BY: Elena N. Boop
Luke D. Mahoney
Law Department
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
MARY J. BOYLE, P.J.:
{¶1} Plaintiff-appellant, Andre Jenkins, appeals from the trial court’s judgment
granting summary judgment to defendants-appellees, the city of Cleveland, Cleveland Police
Chief Calvin Williams, and Officer Colin Ginley (“defendants” or “the city”). He raises two
assignments of error:
1. Due process is denied when, without a factual basis (and solely on the basis of
naked, unclad, unproven, unprovable and unfounded conclusions), the court
concluded it lacked jurisdiction to determine whether money seized incident to
an arrest by local police was forfeitable.
2. Absent a factual finding that the federal court had indeed acquired jurisdiction,
and given that “the court that exercises first jurisdiction” over seized property
does so exclusively, it follows the court here erred when it declared it lacked
jurisdiction.
{¶2} Finding no merit to his assignments of error, we affirm.
I. Procedural History and Factual Background
{¶3} We previously discussed the procedural history and factual background of this
case in Jenkins’s previous appeal in Jenkins v. Cleveland, 8th Dist. Cuyahoga No. 104768,
2017-Ohio-1054,
The instant matter arose from a dispute over $14,890 that officers from the
Cleveland Police Department seized from Jenkins during a traffic stop on August
24, 2015.
On November 10, 2015, Jenkins, pursuant to R.C. 2981.03(A)(4), filed a petition
for return of property against defendants-appellees[.] In his petition, Jenkins
argued that the officers illegally seized his money without probable cause and
requested that the money be returned immediately.
On December 1, 2015, the city filed two motions to dismiss: one pertained to the
city and Chief Williams, and the other pertained to Officer Ginley. In its
motions to dismiss, the city argued that (1) the federal government filed a warrant
to seize Jenkins’s money in the United States District Court for the Northern
District of Ohio on October 7, 2015; (2) the city turned the money over to the
federal government pursuant to the federal warrant on October 8, 2015; and (3)
the city no longer possessed Jenkins’s money and, thus, had nothing to return to
Jenkins.
On June 27, 2016, the trial court granted the city’s motions to dismiss, and
dismissed the matter pursuant to State v. Clayton, 8th Dist. Cuyahoga No. 98795,
2013-Ohio-2198.
Id. at ¶ 2-5.
{¶4} Jenkins appealed, challenging the trial court’s order granting defendants’ motions
to dismiss and arguing that the trial court erred by failing to hold a hearing and not making
findings of fact. Id. at ¶ 6. This court agreed with Jenkins, holding that “the record is devoid
of any evidence supporting the city’s assertions that the federal government seized Jenkins’s
money, the city transferred Jenkins’s money to the federal government, or that Jenkins was
notified of a forfeiture action.” Id. at ¶ 23. This court found that defendants failed to
properly show that the money was transferred to the federal government, thereby depriving the
trial court of jurisdiction. Id. at ¶ 24. The Jenkins court reversed the trial court’s dismissal of
Jenkins’s petition for the return of his property and remanded the case. Id. at ¶ 25.
{¶5} On remand, defendants filed a motion for summary judgment, which again
argued that the trial court lacked jurisdiction over Jenkins’s motion to return property because
the federal government was in possession of Jenkins’s money. Defendants attached sworn
affidavits from Cleveland police officers Negron and Ward with supporting exhibits, which
included court filings from the federal forfeiture proceedings, property slip sheets, and cash
receipts and transfer forms. Defendants also attached exhibits of a certified copy of the
criminal docket for Jenkins’s federal criminal case and certified copies of the following court
filings for that case:
1. Application for a Warrant to Seize Property Subject to Forfeiture, filed on
October 7, 2015
2. Inventory Return Sheet for a $14,890 check, filed on October 16, 2015
Defendants also attached a certified copy of the civil docket for the federal court forfeiture
proceedings for Jenkins’s property and certified copies of the following court filings for that
case:
1. Complaint in Forfeiture, filed on March 1, 2016
2. Certified mail receipt returned and addressed to James Willis, Jenkins’s
attorney, filed March 3, 2016
3. Process receipt and return, filed March 3, 2016
4. Jenkins’s answer to Complaint in Forfeiture, filed June 1, 2016
5. U.S. District Court’s Order of Forfeiture, filed August 1, 2016
6. Process receipt and return, filed August 4, 2016
Finally, the city’s motion for summary judgment also contained a certified copy of the criminal
docket of Jenkins’s municipal case.
{¶6} After holding a hearing and reviewing the evidence presented and the parties’
arguments, the trial court found that Jenkins’s money “was transferred to the federal
government[.]” The trial court concluded that it “lack[ed] jurisdiction to hear [Jenkins’s]
complaint” and granted defendants’ motion for summary judgment.
{¶7} It is from this judgment that Jenkins now appeals.
II. Law and Analysis
{¶8} Jenkins’s assignments of error both contest the trial court’s order granting
summary judgment to defendants after finding that it lacked jurisdiction over Jenkins’s petition
to return property. As a result, we will discuss them together.
A. Standard of Review
{¶9} We review a trial court’s decision to grant summary judgment de novo. Grafton
v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). De novo review means
that this court independently “examine[s] the evidence to determine if as a matter of law no
genuine issues exist for trial.” Brewer v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 383,
701 N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal, 64 Ohio St.2d 116, 413
N.E.2d 1187 (1980).
{¶10} Under Civ.R. 56(C), summary judgment is properly granted when (1) “there is no
genuine issue as to any material fact”; (2) “the moving party is entitled to judgment as a matter
of law”; and (3) “reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is made[.]” Harless v.
Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978). Because it ends
litigation, courts should carefully award summary judgment only after resolving all doubts in
favor of the nonmoving party and finding that “reasonable minds can reach only an adverse
conclusion” against the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356,
358-359, 604 N.E.2d 138 (1992).
{¶11} “The burden of showing that no genuine issue exists as to any material fact falls
upon the moving party. Once the moving party has met his burden, it is the nonmoving party’s
obligation to present evidence on any issue for which that party bears the burden of production
at trial.” Robinson v. J.C. Penney Co., 8th Dist. Cuyahoga Nos. 62389 and 63062, 1993 Ohio
App. LEXIS 2633, 14 (May 20, 1993), citing Harless and Wing v. Anchor Media, Ltd. of Texas,
59 Ohio St.3d 108, 570 N.E.2d 1095 (1991). “The moving party is entitled to summary
judgment if the nonmoving party fails 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.” Brandon/Wiant Co.
v. Teamor, 125 Ohio App.3d 442, 446, 708 N.E.2d 1024 (8th Dist.1998), citing Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
{¶12} As to evidentiary materials attached to a motion for summary judgment, Civ.R.
56(E) states, in relevant part,
[s]upporting and opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated in the
affidavit. Sworn or certified copies of all papers or parts of papers referred to in
an affidavit shall be attached to or served with the affidavit.
{¶13} We review the question of subject-matter jurisdiction de novo as well. Yusuf v.
Omar, 10th Dist. Franklin No. 06AP416, 2006-Ohio-6657, ¶ 7. Subject-matter jurisdiction is
the power conferred on a court to decide a particular matter on its merits and render an
enforceable judgment over the action. Morrison v. Steiner, 32 Ohio St.2d 86, 290 N.E.2d 841
(1972), paragraph one of the syllabus.
{¶14} With this standard in mind, we now turn to Jenkins’s arguments.
B. Jurisdiction Over Petition to Return Property
{¶15} Jenkins argues that the trial court had jurisdiction because (1) it had “in rem”
jurisdiction pursuant to Penn Gen. Cas. Co. v. Pennsylvania, 294 U.S. 189, 55 S.Ct. 386, 79
L.Ed. 850 (1935), and State v. Jacobs, 137 Ohio St. 363, 30 N.E.2d 432 (1940); (2) the city’s
law enforcement agency seized the money; (3) the city’s transfer of the seized money to the
federal government circumvented his constitutional rights; and (4) the trial court failed to make
any factual findings beyond that it lacked jurisdiction.
{¶16} It is also worth mentioning that in his appellate brief, Jenkins raises a number of
arguments contesting the actual seizure of his property. The issue before us, however, is
whether the trial court had subject-matter jurisdiction over Jenkins’s petition for return of his
property, not the merits of that petition. Thus, we will not address those arguments raised by
Jenkins and will only consider those pertaining to the trial court’s subject-matter jurisdiction
listed above.
1. “In rem” Jurisdiction
{¶17} Jenkins argues that the trial court had subject-matter jurisdiction over his petition
to return property because it had “in rem” jurisdiction. “A proceeding in rem is one taken
directly against property and has for its object the disposition of the property without reference
to the title of individual claimants.” Wallace v. Youngstown, 7th Dist. Mahoning No. 84 C.A.
90, 1985 Ohio App. LEXIS 6708, 4-5 (May 7, 1985).
{¶18} In support of his argument, Jenkins cites to Penn Gen. and Jacobs. In Penn
Gen., 294 U.S. 189, 55 S.Ct. 386, 79 L.Ed. 850, the U.S. Supreme Court held that two courts
cannot exercise in rem jurisdiction over the same res. Id. at 195. As the court stated, “To
avoid unseemly and disastrous conflicts in the administration of our dual judicial system, * * *
the principle, applicable to both federal and state courts, is established that the court first
assuming jurisdiction over the property may maintain and exercise that jurisdiction to the
exclusion of the other.” Id. at 196.
{¶19} In Jacobs, 137 Ohio St. 363, 30 N.E.2d 432, the defendant challenged the
sheriff’s taking of his property during a raid of his premises. After the defendant pleaded
guilty, he applied for the return of his property. The trial court granted the defendant’s
application. On appeal, the sheriff challenged the validity of the trial court’s order, arguing
that the defendant had to institute a separate action for the property and could not file an
application in his criminal case. The court held that “[p]roperty or money seized by a sheriff in
raiding a place where gambling is conducted is under the control and subject to the order of a
trial court in a criminal proceeding, and the court, as a part of that proceeding, may make proper
disposition of the property or money so seized[.]” Id. at paragraph one of the syllabus.
{¶20} This case, however, is distinguishable from both Penn Gen. and Jacobs because
neither a state or local law enforcement agency asserted a claim against or seeks to claim
Jenkins’s money, and Jenkins has not shown that the state court exercised jurisdiction before the
federal court did over the money. See United States v. 174,206.00 in United States Currency,
320 F.3d 658, 661 (6th Cir.2003) (finding that the federal court had in rem jurisdiction over the
seized property because the state court’s jurisdiction was in personam in the forfeiture action
and the state court never exercised in rem jurisdiction); United States v. One Hundred
Thirty-Four Thousand Nine Hundred Twenty Dollars in United States Currency, 6th Circ. No.
93-5365, 1994 U.S. App. LEXIS 14414, 8 (June 8, 1994) (“[W]here the federal court is the only
court attempting to exercise in rem jurisdiction over property and the state never institutes a
forfeiture action, the federal court’s exercise of jurisdiction is proper.”). Further, unlike
Jacobs, Jenkins is not seeking his property as part of the criminal proceedings against him;
instead, he is seeking it in an entirely separate action. Therefore, we disagree with Jenkins’s
argument that the trial court had “in rem” jurisdiction over the money seized by state officials.
2. Seizure by the City
{¶21} Jenkins next argues that the trial court had jurisdiction because the money was
seized by city officials. Seizure by a state or local law enforcement agency, however, does not
automatically subject the seized property to the state court’s jurisdiction. United States v.
$99,500 in United States Currency, 6th Circ. No. 1:16 CV 2422, 2018 U.S. Dist. LEXIS
161089, 23 (Sept. 20, 2018) (“[W]here a federal district court is the first to assume jurisdiction
over the currency, it has in rem jurisdiction. * * * This is true even if the property was originally
seized by state officers and held by the state prior to the United States ultimately taking
possession.”). Therefore, we reject Jenkins’s argument.
3. Transfer of Money to Federal Government
{¶22} Jenkins also argues that the trial court erred because transferring the money to the
federal government circumvented his due process rights. He states that by upholding the trial
court’s decision, defendants “can simply (1) avoid having to prove there was a lawful seizure;
and (2) avoid having to prove any monies seized, in the name of the State, was lawfully given to
the [federal government].” He argues that the process of turning the money over to the federal
government deprives him of “his day in [c]ourt.”
{¶23} Foremost, it is not accurate that Jenkins was deprived of his day in court. The
record contains exhibits of certified docket entries and other filings and forms from the federal
forfeiture action that were attached to defendants’ motion for summary judgment. Those
certified docket entries show that Jenkins knew of and actively participated in the proceedings in
federal court. Therefore, he did have his day in court, just not in state court.
{¶24} Second, those same certified docket entries show that Jenkins had the opportunity
to contest the seizure of his money in federal court and did in fact answer the federal
government’s complaint in forfeiture. The certified docket entries also show that the district
court ordered that the money be forfeited to the United States of America. Therefore, it
appears that the federal government was required to prove, and did prove, that the seizure was
lawful and the money was subject to forfeiture.
{¶25} Despite our disagreement with Jenkins’s argument, we are mindful of the
concerns that he raises. This court has previously noted its “disturbance” with the fact that
state authorities “are circumventing the state forfeiture statute by preemptively turning over the
seized monies to federal authorities [and] are then disclaiming any responsibility over these
funds simply stating that because the federal government possesses the funds at issue, ‘we are
without jurisdiction to hear the matter.’” Cleveland v. Cunnningham, 8th Dist. Cuyahoga No.
95267, 2011-Ohio-2276, ¶ 29 (E.A. Gallagher, J. concurring in judgment only); see also State v.
Scott, 7th Dist. Mahoning No. 98 CA 174, 2000 Ohio App. LEXIS 1221, 7 (Mar. 22, 2000)
(“[T]he trial judge expressed serious misgivings concerning the legal loophole which effectively
allows local law enforcement authorities to completely circumvent the procedural safeguards
contained in the state forfeiture statute. This is accomplished by merely turning the seized
property over to federal authorities pursuant to federal statute which does not require a
defendant’s conviction as a condition precedent to forfeiture proceedings. The trial court’s
misgivings are highlighted by the fact that there is an apparent financial incentive for a local
police department to seek the implementation of federal forfeiture proceedings as opposed to its
state law counterpart. The cumulative effect of this practice is to reduce Ohio’s forfeiture
statute to a functional nullity.”).
{¶26} Nevertheless, our concerns with state law enforcement officials transferring seized
property to the federal government does not change the fact that those transfers are lawful.
Therefore, we disagree with Jenkins’s argument.
4. Factual Findings by Trial Court
{¶27} Finally, Jenkins argues that the trial court erred by not making any other “specific,
factually based findings [besides] * * * the jurisdiction issue.”
{¶28} We remanded Jenkins’s previous appeal because the record did not contain
evidence that the money was transferred to the federal government. Upon remand and in
granting defendants’ motion for summary judgment, the trial court discussed and analyzed a
number of our previous cases — State v. Primm, 8th Dist. Cuyahoga No. 94640,
2011-Ohio-328; Long v. State, 8th Dist. Cuyahoga No. 97044, 2012-Ohio-366; and State v.
Clayton, 8th Dist. Cuyahoga No. 98795, 2013-Ohio-2198 — that posed similar jurisdictional
issues similar to that in this case.
{¶29} In Primm, after performing a traffic stop of the defendant’s vehicle, state law
enforcement agents arrested the defendant for drug trafficking, having a weapon while under
disability, and possessing criminal tools and seized $26,318, a handgun, and marijuana from the
vehicle. The defendant pleaded guilty to having a weapon while under disability. After he
was sentenced, the defendant filed a motion seeking return of the money, which the state
opposed, arguing that the money was in the possession of the federal government. According
to the state, it transferred the money to the federal government and provided evidence — a
Declaration of Administrative Forfeiture filed by the U.S. Department of Justice — of the
transfer. The trial court denied the defendant’s motion. On appeal, this court found that the
trial court “properly deferred to this declaration” and dismissed the case for lack of jurisdiction.
Id. at ¶ 7.1
{¶30} In Long, officers from the Cuyahoga County Sheriff’s Department and the United
States Department of Justice Drug Enforcement Administration executed a search warrant and
seized “an undetermined amount of cash” belonging to the defendant. Id. at ¶ 2. The
defendant filed a motion in the common pleas court seeking return of the seized money, and the
state opposed the motion, arguing that the trial court lacked jurisdiction because the federal
government had the defendant’s money. The trial court denied the defendant’s motion,
concluding that it lacked jurisdiction. On appeal, this court found that there was no “evidence
establishing which entity maintained jurisdiction over the seized property” and that the evidence
1
Importantly, Primm resulted in three separate opinions, a majority opinion, a concurring in judgment only
opinion with separate reasons, and a dissenting opinion. Therefore, the lead opinion’s reasoning is persuasive but
not controlling.
submitted by the state failed to establish “whether state or federal authorities had actually seized
or maintained possession of the seized property.” Id. at ¶ 8. As a result, the Long court held
that the trial court erred by dismissing the case. Id. at ¶ 11.
{¶31} In Clayton, 8th Dist. Cuyahoga No. 98795, 2013-Ohio-2198, state law
enforcement arrested the defendant for drug trafficking, possession of criminal tools, carrying a
concealed weapon, and having weapons while under disability and seized $22,832 from the
defendant’s vehicle. The state later dismissed the charges against the defendant, and the
defendant filed a motion seeking return of the money in state court. The state responded to the
defendant’s motion, stating that the money was in the custody of the federal government, which
filed warrants for the seizure of the money. The trial court denied the defendant’s motion, and
the defendant appealed. On appeal, this court held that “when property and money are
forfeited under federal law, it is immaterial what Ohio’s forfeiture statute provides by way of
relief[.]” Id. at ¶ 16, citing State ex rel. Chandler v. Butler, 61 Ohio St.3d 592, 575 N.E.2d 833
(1991).
{¶32} Here, in its journal entry, the trial court discussed Clayton, Primm, 8th Dist.
Cuyahoga No. 94640, 2011-Ohio-328, and Long, 8th Dist. Cuyahoga No. 97044,
2012-Ohio-366, stating,
Like Clayton, defendants’ presented a copy of the federal warrant for the seizure
of Jenkins’ [sic] property in the amount of $14,890.00. See Defendants’ motion
for summary judgment, Exhibit A-3. * * * Here, as in Primm, the order of
forfeiture, indicates that the $14,890.00 at issue was forfeited to the federal
government on 8/01/16. See Defendants’ motion for summary judgment,
Exhibit D5. * * * Here, as in Long, the record contains receipts presented by
defendants which demonstrate the City of Cleveland transferred the money in
question to the federal government. See Defendants’ motion for summary
judgment, Exhibit C2.
{¶33} The trial court went on to note that
[o]ther evidence presented in Defendants’ motion for summary judgment, and at
the hearing, indicates that a forfeiture action was commenced in federal court.
See Defendants’ motion for summary judgment, Exhibit D1, D5. The record
shows that Jenkins knew of the pending forfeiture action in federal court as he
filed an answer in federal court admitting that the “FBI commenced an
administrative proceeding against the currency.” See Defendants’ motion for
summary judgment, Exhibit D4, ¶ 4. Additionally, the U.S. Attorney’s Office
provided plaintiff’s counsel with a notice of the forfeiture action on 3/01/16.
See Defendants’ motion for summary judgment, Exhibits D1, D2.
{¶34} Based on the above, the trial court found that defendants “established that the
federal government filed a warrant to seize Jenkins’ [sic] money, the city of Cleveland
transferred Jenkins’ [sic] money to the federal government, Jenkins was notified of the transfer
of the funds at issue and that a forfeiture action was commenced in federal court.”
{¶35} The trial court’s analysis could not be more correct. There were 63 pages of
documents attached to defendants’ motion for summary judgment, which included docket
entries and other filings and forms from the federal forfeiture action.
{¶36} Those documents clearly establish that the federal government, not defendants,
possess and control Jenkins’s money and that Jenkins was aware of that fact. Those
documents also establish that the trial court did not have jurisdiction over Jenkins’s petition.
As a result, the trial court was not required to make additional factual findings after concluding
that it lacked subject-matter jurisdiction. Therefore, we reject Jenkins’s argument.
{¶37} In conclusion, we find that the trial court lacked jurisdiction over Jenkins’s
petition and properly granted summary judgment to defendants. Accordingly, we overrule
Jenkins’s assignments of error.
{¶38} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR