Willoughby v. Harger

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Raheem Calique Willoughby,

Plaintiff,

v. Case No. 2:20-cv-620

Stephen J. Harger,

et al.,

Defendants.

ORDER

Plaintiff Raheem Calique Willoughby, an inmate incarcerated at

the Pickaway County Jail who is proceeding without the assistance

of counsel, filed this civil rights action under 42 U.S.C. §1983

against seven defendants: Deputy Stephen Harger of the Pickaway

County Sheriff’s Department; Kathryn Janes, plaintiff’s court-

appointed attorney in state criminal proceedings; Pickaway County

Assistant Prosecutor Jayme Fountain; Pickaway County Prosecuting

Attorney Judy Wolford; Deputy John Schleich of the Pickaway County

Sheriff’s Department; James Dean, Clerk of the Pickaway County

Common Pleas Court; and Pickaway County Sheriff Robert Radcliff.

Plaintiff alleged that Deputy Harger inappropriately touched him in

a sexual manner while performing a frisk under Terry v. Ohio, 392

U.S. 1 (1968), in violation of his Fourth Amendment rights. In

regard to the other defendants, plaintiff alleged that Deputy

Schleich did not accept the sex crime charges that plaintiff

attempted to file against Deputy Harger; that Prosecuting Attorney

Wolford and Assistant Prosecutor Fountain failed to prosecute

Deputy Harger for a sex crime; that Attorney Janes failed to report

the alleged sex crime; and that Sheriff Radcliff failed to order

any type of investigation of Deputy Harger. Plaintiff also alleged

that defendants Janes, Fountain, Wolford, Dean, and Radcliff

engaged in various unconstitutional acts in connection with

plaintiff’s criminal case in state court.

On February 13, 2020, the magistrate judge filed an order and

report and recommendation. The magistrate judge concluded that

the claims against defendants Schleich, Janes, Fountain, Wolford,

Dean, and Radcliff did not arise out of the same transaction,

occurrence, or series of transactions or occurrences, as the claim

against Deputy Harger. See Fed. R. Civ. P. 20. The magistrate

judge ordered that the claims against these six defendants be

severed and dismissed without prejudice pursuant to Fed. R. Civ. P.

21.

In regard to the claim against Deputy Harger, the magistrate

judge conducted an initial screen of plaintiff’s complaint pursuant

to 28 U.S.C. §1915A, which requires the court, “in a civil action

in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity,” to dismiss a

complaint that fails to state a claim upon which relief may be

granted. 28 U.S.C. §1915A(a)-(b)(1).

Noting that Deputy Harger was named as a defendant in his

official capacity, the magistrate judge found that the complaint

failed to allege the existence of a Pickaway County ordinance,

policy or regulation which would support an official capacity

claim. The magistrate judge also concluded that even if the

complaint were amended to assert a claim against Harger in his

individual capacity, plaintiff failed to allege facts which would

support a claim of inappropriate physical contact violating the

Fourth Amendment. The magistrate judge recommended that the claim

2

against Deputy Harger be dismissed.

This matter is before the court for consideration of

plaintiff’s objections (Docs. 4 and 5) to the magistrate judge’s

report and recommendation. If a party objects within the allotted

time to a report and recommendation, the court “shall make a de

novo determination of those portions of the report or specified

proposed findings or recommendations to which objection is made.”

28 U.S.C. §636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review,

the Court “may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge.” 28

U.S.C. §636(b)(1).

As the magistrate judge correctly explained, 28 U.S.C.

§1915(e) requires sua sponte dismissal of an action upon the

court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon

which relief may be granted. Grinter v. Knight, 532 F.3d 567, 572

(6th Cir. 2008). Courts conducting initial screens under §1915(e)

apply the motion to dismiss standard. See, e.g., Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.

12(b)(6) standards to review under 28 U.S.C. §§1915A and

1915(e)(2)(B)(ii)).

Courts ruling on a motion to dismiss under Rule 12(b)(6)

construe the complaint in a light most favorable to the plaintiff,

accepting all well-pleaded allegations in the complaint as true,

and determining whether plaintiff undoubtedly can prove no set of

facts in support of those allegations that would entitle him to

relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive

3

a motion to dismiss, the “complaint must contain either direct or

inferential allegations with respect to all material elements

necessary to sustain a recovery under some viable legal theory.”

Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005).

The court agrees with the magistrate judge that the complaint

does not assert a viable claim against Deputy Harger in his

official capacity, as it is not alleged that Deputy Harger acted

pursuant to a Pickaway County ordinance or policy. Plaintiff has

moved to amend his complaint to assert a claim against Deputy

Harger in his individual capacity. However, a motion to amend a

complaint should be denied if the amendment would be futile.

Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010). Because

amending the complaint to allege an individual capacity claim would

be futile, plaintiff’s motion for leave to amend his complaint to

assert an individual capacity claim against Deputy Harger is

denied.

In Terry, the Supreme Court described the standard pat-down

frisk for weapons: “[T]he officer must feel with sensitive fingers

every portion of the prisoner’s arms and armpits, waistline and

back, the groin area about the testicles, and entire surface of the

legs down to the feet.” Terry, 392 U.S. at 17, n. 13 (citations

omitted). The genital area is a place where a weapon can be

concealed. See United States v. Hopes, 286 F.3d 788, 788-90 (5th

Cir. 2002)(upholding a Terry frisk during which a loaded gun was

found in defendant’s crotch area). Plaintiff alleged in his

complaint that Deputy Harger “groped Plaintiff’s penis and anus in

a sexual manner” during a Terry frisk. Doc. 2, Para. 2. This

allegation is insufficient to allege an inappropriate Terry pat-

4

down frisk. See Long v. Henry County Jail, No. 1:17-cv-01141-JDB-

cgc, 2018 WL 4839088, at *2 (W.D. Tenn. October 4, 2018)(with no

factual context, plaintiff’s “statement that the search amounted to

sexual assault or harassment is a mere conclusion of law”); Brown

v. City of Grand Rapids, 1:13-cv-964, 2016 WL 4920144, at *4-6

(W.D. Mich. June 13, 2016)(rejecting plaintiff’s characterization

of a pat-down frisk as a sexual assault, noting that allegations

that officer searched around plaintiff’s testicles and “squeezed

them really hard” were insufficient to state a constitutional

claim). See also United States v. Stennis, 457 F. App’x 494, 501

(6th Cir. 2012)(frisk of groin and upper legs was within the proper

scope of a frisk authorized under Terry).

Plaintiff has submitted new arguments and documents with his

objections. Plaintiff may not offer evidence for the first time in

an objection which was never presented to or considered by the

magistrate judge. Murr v. United States, 200 F.3d 895, 902 n. 1

(6th Cir. 2000). Plaintiff refers for the first time to the issue

of whether the Terry stop itself was valid, and seeks to contest

the state court’s ruling holding that the evidence obtained during

the stop was admissible. These arguments go beyond the claim

against Deputy Harger, which relates solely to the manner in which

the pat-down frisk was conducted. The court also notes that even

if Deputy Harger’s report, attached to the objections, is

considered, it does not demonstrate that the pat-down frisk

exceeded the bounds established by Terry. The court agrees with

the magistrate judge that plaintiff’s allegations against Deputy

Harger do not rise to the level of a Fourth Amendment violation,

and that the claim against Deputy Harger must be dismissed.

5

In his objections, plaintiff has also moved for an order that

he be provided with transcripts of his state court criminal

proceedings, an order directing the state court prosecutors and

trial judge to recuse themselves from his state criminal case, and

an order granting a change of venue in his criminal case. This

court has no jurisdiction over the state court criminal proceedings

against plaintiff, and these motions are denied.

In accordance with the foregoing, the court adopts the report

and recommendation (Doc. 3). The claim against Deputy Harger is

dismissed pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to

state a claim for which relief may be granted. The clerk shall

enter judgement dismissing this case.

Date: March 12, 2020 s/James L. Graham

James L. Graham

United States District Judge

6