State asking judge to dismiss 'tennis ball terrorist' lawsuit

A state agency has asked a judge to dismiss the federal lawsuit of a Millfield man, who was charged with inducing panic after he allegedly dropped some tennis balls into Dow Lake in July 2007.

John Fisher, 48, has claimed that the Ohio Department of Natural Resources only pursued misdemeanor charges against him to try to cover up their own incompetence in how they reacted to finding the balls.

After park officials were alerted to the presence of the balls, which were not floating, they reportedly feared they might represent some kind of terrorist poison attack. They then closed down the beach and boat ramp of Strouds Run State Park for four days.

Though they later learned the balls contained only lake water, they charged Fisher with inducing panic. A witness had allegedly reported seeing a one-armed man throwing the balls in the lake, and Fisher is missing part of his arm.

Fisher has denied putting the balls into the lake, and in December 2007, a judge in Athens County Municipal Court threw out the charges against him of inducing panic and littering.

Fisher has sued ODNR in U.S. District Court, naming a number of agency officials as defendants. He claimed in the suit that the park officials wildly over-reacted to finding the balls, then attempted to scapegoat him to detract attention from their "incompetent panic and paranoia."

On Nov. 16, attorneys from the Ohio Attorney General's office filed a motion to dismiss Fisher's suit, on behalf of ODNR employees Chris Dodson, John Kullman, Robert Dorinsky, Chris Hardman and Coy Lehman. The motion claimed, among other points, that the federal court lacks subject matter jurisdiction over the issues raised by the lawsuit.

A memorandum to the motion noted that park officials found the tennis balls over Independence Day weekend, and, "mindful of the significance of the 4th of July weekend to both Americans celebrating and those individuals who do not wish the United States well "“ and mindful of their duty to ensure the safety of the public "“ took appropriate steps to investigate the matter and protect park patrons. What (Fisher), after the fact, contends was overreaction and inappropriate action does not rise to the level of a constitutional violation."

The motion, by assistant attorneys general Raymond J. Studer and Rachel H. Stelzer, also argued that Fisher's suit was filed a day too late; and that it is barred by the 11th Amendment, because Fisher has not gotten a finding from the Ohio Court of Claims that the defendants aren't entitled to immunity from liability as state employees.

On the timing claim, the attorneys noted that Fisher's alleged civil-rights violations appear to have taken place from July to August 2007 "“ more than two years ago, which they claim means the statute of limitations for suing over them has run out.

The motion claims that based on when the charges were filed against Fisher "“ Aug. 16, 2007 "“ the deadline for him to sue was Aug. 16 of this year, and Fisher's suit was filed one day later than that.

The 11th Amendment limits the ability of citizens to sue states. The ODNR's motion pointed out that the Ohio Supreme Court "has held unequivocally" that state employees are immune from lawsuits unless the Ohio Court of Claims finds that the actions for which they're being sued were outside the scope of their job duties; or done with malicious purpose, in bad faith, or in a wanton and reckless manner.

The motion went on to claim that Fisher has failed to make any specific allegations about the actions of the five named defendants, or to establish that the doctrine of respondeat superior "“ which would make the state liable for their actions "“ should apply here.

The motion is set for oral arguments on Jan. 4.