Tassone v. Tellis

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MATTHEW TASSONE,

Plaintiff,

v. Civil Action 2:21-cv-694

Judge Michael H. Watson

Magistrate Judge Chelsey M. Vascura

SHERIFF DEPUTY TELLIS,

Defendant.

ORDER and REPORT AND RECOMMENDATION

Plaintiff, Matthew Tassone, an Ohio resident proceeding without the assistance of

counsel, has submitted a request to file a civil action in forma pauperis. (ECF No. 1.) The Court

GRANTS Plaintiff’s request to proceed in forma pauperis. All judicial officers who render

services in this action shall do so as if the costs had been prepaid. 28 U.S.C. § 1915(a). This

matter is also before the Court for the initial screen of Plaintiff’s Complaint as required by 28

U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of Plaintiff’s

Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim upon which

relief may be granted, or seeks monetary relief from a defendant who is immune from such

relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that follow,

it is RECOMMENDED that Plaintiff be permitted to proceed on his Fourth Amendment claim

for excessive force, and that the Court DISMISS Plaintiff’s remaining claims pursuant to 28

U.S.C. § 1915(e)(2).

I. BACKGROUND

According to the Complaint, Plaintiff attended divorce proceedings on February 16,

2021, at the Domestic Relations & Juvenile Court for Franklin County, Ohio. (Compl. ¶ 4, ECF

No. 1-1.) Plaintiff’s spouse brought Plaintiff’s daughter to the hearing. Plaintiff shares custody

of his daughter with his spouse. (Id., ¶¶ 5–6.) At the conclusion of the hearing, Plaintiff asked

his daughter if she would like to walk out with him to the lobby to say goodbye for the day. (Id.

¶ 9.)

At this point, Defendant Tellis, an on-duty deputy of the Franklin County Sherriff’s

office, approached Plaintiff and refused to allow Plaintiff to take his daughter into the hallway.

(Id. ¶ 10.) Plaintiff alleges that Defendant was not directed by the Domestic Relations Court or

Plaintiff’s spouse to prevent him from taking his daughter into the hallway, and there was no

reason for Defendant to do so. (Id.) In response, Plaintiff told Defendant, “[y]ou know what,

fuck you.” (Id. ¶ 11.)

Plaintiff then left the courtroom without his daughter. Defendant followed Plaintiff into

the hallway, where Defendant “closed the distance between [Defendant] and the Plaintiff, and

[Defendant] began to push the Plaintiff with [Defendant’s] chest. While [Defendant] was chest

bumping the Plaintiff ([Defendant] using his own chest to push against the Plaintiff’s chest),

[Defendant] said to the Plaintiff, ‘say it again’ . . . .” (Id. ¶ 12.) Plaintiff again said “fuck you”

to Defendant. (Id. ¶ 13.) Defendant then grabbed Plaintiff and “attempted to throw” him,

causing pain and aggravating various of Plaintiff’s pre-existing conditions. (Id. ¶ 14.) Plaintiff

states that he was never informed that he was under arrest, was never under suspicion of

committing a crime, and posed no threat to the safety of anyone. (Id. ¶ 15.)

Plaintiff asserts claims under the Fourth and Fourteenth Amendments for excessive force

and deprivation of his parental rights. He seeks $100,000 in compensatory damages, as well as

punitive damages, attorney’s fees and costs, and an order compelling Defendant to issue a

written apology and to refrain from using his state power to assault citizens.

II. STANDARD OF REVIEW

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e) as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that–

* * *

(B) the action or appeal--

(i) is frivolous or malicious; [or]

(ii) fails to state a claim on which relief may be granted . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 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.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).

Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a

complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on

its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for

the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court

holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”

Garrett v. Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612, 614 (6th Cir. 2010) (quoting Haines

v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however, has limits; “courts should

not have to guess at the nature of the claim asserted.” Frengler v. Gen. Motors, 482 F. App’x

975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

III. ANALYSIS

It is RECOMMENDED that Plaintiff be permitted to proceed on his individual-capacity

claim against Defendant for excessive force in violation of the Fourth Amendment. Plaintiff’s

remaining claims, however, fail to state a claim on which relief can be granted.

As an initial matter, Plaintiff has asserted claims for excessive force under both the

Fourth Amendment and the substantive due process clause of the Fourteenth Amendment.

However, the United States Supreme Court has made clear that excessive force claims are

properly analyzed under the Fourth Amendment, not the Fourteenth. Wilson v. Wilkins, 362 F.

App’x 440, 443 (6th Cir. 2010) (citing Graham v. Connor, 490 U.S. 386, 395 (1989)).

Accordingly, it is RECOMMENDED that Plaintiff’s claim for excessive force under the

Fourteenth Amendment be DISMISSED.

Plaintiff also advances several claims related to Defendant’s refusal to allow Plaintiff to

take his daughter into the hallway to say goodbye privately. First, Plaintiff asserts that both his

and his daughter’s Fourth Amendment rights were violated when Defendant “seized” Plaintiff’s

daughter. However, Plaintiff’s allegations do not establish that any seizure of Plaintiff’s

daughter occurred. “The Supreme Court has made clear that ‘[a] “seizure” triggering the Fourth

Amendment’s protections occurs only when government actors have, by means of physical force

or show of authority, in some way restrained the liberty of a citizen.’” Slusher v. Carson, 540

F.3d 449, 454–55 (6th Cir. 2008) (quoting Graham, 490 U.S. 386, 395 n. 10 (alterations and

quotations omitted)). See also Terry v. Ohio, 392 U.S. 1, 16 (1968) (“[W]henever a police

officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that

person.”). Plaintiff’s Complaint is devoid of any allegations that Defendant physically restrained

Plaintiff’s daughter or otherwise restrained her liberty through a show of authority; Plaintiff

merely states that Defendant approached Plaintiff and would not allow Plaintiff to take his

daughter into the hallway. Accordingly, no seizure of Plaintiff’s daughter occurred and the

Fourth Amendment is not implicated by Defendant’s refusal to allow Plaintiff to take his

daughter into the hallway. It is therefore RECOMMENDED that Plaintiff’s claims under the

Fourth Amendment related to the seizure of his daughter be DISMISSED.

Finally, Plaintiff also asserts that his and his daughter’s substantive due process rights

were violated when Defendant interfered with their rights to associate with family. Substantive

due process “bar[s] certain government actions regardless of the fairness of the procedures used

to implement them.” Daniels v. Williams, 474 U.S. 327, 331 (1986). It “specifically protects

those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s

history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor

justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720–21

(1997) (internal quotation marks and citations omitted). In other words, the substantive due

process clause protects “the right not to be subjected to arbitrary and capricious government

action that ‘shocks the conscience and violates the decencies of civilized conduct.’” Guertin v.

State, 912 F.3d 907, 917–18 (6th Cir. 2019) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833,

846–47 (1998)). See also Siefert v. Hamilton Cty., 951 F.3d 753, 766–67 (6th Cir. 2020), cert.

denied sub nom. Hamilton Cty. Job & Fam. Servs. v. Siefert, No. 20-381, 2020 WL 7132287

(U.S. Dec. 7, 2020) (plaintiffs failed to allege a substantive due process violation of their

fundamental liberty interest in the care, custody, control, companionship, and management of

their child when their allegations did not demonstrate conscience-shocking behavior by

defendants). But see Schulkers v. Kammer, 955 F.3d 520, 544, n.5 (6th Cir. 2020) (noting the

lack of clarity within the Sixth Circuit regarding whether a plaintiff bringing a substantive due

process claim must show that the challenged government action shocks the conscience and

comparing Pittman v. Cuyahoga Cty. Dep’t of Children & Family Servs., 640 F.3d 716, 728–29

(6th Cir. 2011) with Seifert, 951 F.3d at 765).

However, “the due process guarantee does not entail a body of constitutional law

imposing liability whenever someone cloaked with state authority causes harm.” Lewis, 523

U.S. at 848; accord Vasquez v. City of Hamtramck, 757 F.2d 771, 773 (6th Cir. 1985) (“A citizen

does not suffer a constitutional deprivation every time he is subject to the petty harassment of a

state agent.”). Although, taking Plaintiff’s allegations as true, Defendant had no apparent reason

for preventing Plaintiff from taking his daughter into the hallway to say goodbye for the day, his

preventing Plaintiff from what was likely at most a few minutes of private time with his daughter

on a single occasion does not rise to the level of action that “shocks the conscience and violates

the decencies of civilized conduct.” Lewis, 523 U.S. at 846–47. Thus, although Defendant’s

conduct may have been “unprofessional,” it does not amount to a deprivation of Plaintiff’s or his

daughter’s right to substantive due process. See, e.g., Parate v. Isibor, 868 F.2d 821, 832–33

(6th Cir. 1989). It is therefore RECOMMENDED that Plaintiff’s substantive due process

claims under the Fourteenth Amendment be DISMISSED.

IV. DISPOSITION

For the foregoing reasons, it is RECOMMENDED that Plaintiff be permitted to proceed

on his individual-capacity claim against Defendant for excessive force in violation of the Fourth

Amendment. It is further RECOMMENDED that Plaintiff’s remaining claims be DISMISSED

pursuant to 28 U.S.C. § 1915(e)(2).

V. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those

portions of the Report or specified proposed findings or recommendations to which objection is

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in

part, the findings or recommendations made herein, may receive further evidence or may recommit

this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE