Sullivan v. Kelsey

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES SULLIVAN, Case No. 1:21-cv-421

Plaintiff,

Black, J.

vs Bowman, M.J.

SAVON KELSEY, et al.,

Defendants.

REPORT AND RECOMMENDATION

This civil action is now before the court on Defendants’ motion to dismiss Plaintiff’s

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim

upon which relief can be granted (Doc. 9) and the parties’ responsive memoranda. (Docs.

11, 12). Also before the Court is Plaintiff’s motion to amend the complaint (Doc. 13-15)

and Defendants’ motion to strike the second amended complaint (Doc. 16).

I. Background and Facts

Plaintiff initially filed this action on May 19, 2021 in the Hamilton County Court of

Common Pleas. (Doc.1). Defendants removed the matter to this Court on June 21, 2021.

Id. Plaintiff’s complaint involves an incident on May 20, 2020 wherein police and fire

responded to Plaintiff’s residence. After investigating Plaintiff’s barbeque as an unlawful

burn, criminal charges were issued against Plaintiff for obstructing official business and

failure to comply with the orders of the Cincinnati Fire Department. (Doc. 9, Exs. A, B).

Plaintiff appears to assert that Defendants were negligent when they caused damage to

his leg, unlawfully seized him, deprived him of his right to a hearing pursuant to O.R.C.

3737.85, conspired against him, and maliciously prosecuted him for obstructing official

business and failure to comply. (Doc. 1, Ex. A).

Defendants now move to dismiss Plaintiff’s complaint for failure to state a claim

upon which relief may be granted. After careful consideration, the undersigned finds that

Defendants motion is well-taken.

II. Analysis

A. Standard of Review

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of

the claims. The court is required to construe the complaint in the light most favorable to

the Plaintiff, and accept all well-pleaded factual allegations in the complaint as true. See

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) and Lewis v. ACB Business Services, 135

F.3d 389, 405 (6th Cir. 1998). A court, however, will not accept conclusions of law or

unwarranted inferences which are presented as factual allegations. Blackburn v. Fisk

University, 443 F.2d 121, 124 (6th Cir. 1974). A complaint must contain either direct or

reasonable inferential allegations that support all material elements necessary to sustain

a recovery under some viable legal theory. Lewis v. ACB, 135 F.3d at 405 (internal

citations omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds' of his

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007) (citations omitted); Association of Cleveland Fire Fighters v. City of

Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). Even though a complaint need not

contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a

right to relief above the speculative level on the assumption that all the allegations in the

complaint are true (even if doubtful in fact).” Id. (citations omitted).

B. Defendants motion to dismiss is well-taken.

Defendants argue that Plaintiff’s complaint fails to include basic and minimal

factual allegations in order to state a claim for relief. Defendants further argue that they

are entitled to immunity under the theories of either tort immunity, absolute immunity, or

qualified immunity. Moreover, even if this Court finds the Defendants are not entitled to

immunity, Plaintiff’s Complaint fails to plead sufficient facts to allege claims of negligence,

conspiracy, or violation of Civil Rights under 42 U.S.C. §1983. Defendants’ contentions

are well-taken.

At the outset, Defendants contend that Plaintiff’s pleading contains minimal,

incomplete, and confusing factual allegations about an incident wherein police and fire

responded to his residence on May 20, 2020. (Doc.2, PAGEID #83-84, Doc.3, PAGEID

#92, Doc.4, PAGEID #104, Doc. 5, PAGEID #115, Doc. 6, PAGEID #124). In seeking to

state a claim, Plaintiff briefly discusses the facts of the case and then provides random

and seemingly irrelevant statements of law. Id. While Plaintiff fails to provide any

statement of a specific injury other than damage to his leg, he requests exuberant

monetary damages, medical and related expenses, loss of earnings, interest as allowed

by law, the cost of this suit, and attorney’s fees. (Doc.2, PAGEID #89, Doc.3, PAGEID

#99-100, Doc.4, PAGEID #110-111, Doc.5, PAGEID #120, Doc.6, PAGEID #129).

The undersigned agrees that Plaintiff’s complaint is nothing more than “labels and

conclusions” and lacks even “a formulaic recitation of the elements of a cause of action”

and consequently it does not suffice under the most lenient application of Iqbal and

Twombly. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 555.

Notably, Plaintiff’s complaint fails to “contain either direct or inferential allegations

respecting all the material elements to sustain a recovery under some viable legal theory.”

Scheid v. Fanny Farmer Candy Shop, Inc., 859 F.2d 434, 437 (6th Cir. 1988). See also

Perry v. UPS, 90 F. App’x 860, 862 (6th Cir. 2004) (dismissing pro se plaintiff’s complaint

where the pleading offered only labels and conclusions).

Assuming arguendo, that Plaintiff’s complaint meets the pleadings requirements

outlined in Rule 12, Defendants argue that Plaintiff’s unlawful seizure claim, malicious

prosecution, and due process claims should be dismissed as he waived his right to bring

these claims when he entered “no contest” pleas in Hamilton County Municipal Court

Case No. 20/CRB/10469 and 20/CRB/10470. (Doc. 9, Exhibit C and D). See Walker v.

Schaeffer, 854 F.2d 138, 142 (6th Cir.1988) (plea of no contest in state court to criminal

charges precluded subsequent claim of false arrest in federal court because plaintiff had

a “full and fair opportunity to litigate” probable cause issue in state court proceeding). See

also Heck v. Humphrey, 512 U.S. 477, 496-487 (1994); Daubenmire v. City of Columbus,

507 F.3d 383, 390 (6th Cir. 2007) (finding that plaintiffs were estopped from asserting a

§ 1983 claim after entering a no contest plea). The undersigned agrees.

Next, Defendants argue that Plaintiff’s Complaint fails to state a plausible claim for

civil conspiracy. A civil conspiracy under § 1983 is “an agreement between two or more

persons to injure another by unlawful action.” Revis v. Meldrum, 489 F.3d 273, 290 (6th

Cir. 2007). To prevail on such a claim, a plaintiff must demonstrate that (1) a single plan

existed, (2) the conspirators shared a conspiratorial objective and (3) an overt act was

committed in furtherance of the conspiracy that caused the injury. Id. Employees of a

corporation cannot conspire with fellow agents or employees of that company. Hull v.

Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir.

1991) (stating “this court has adopted the general rule in civil conspiracy cases that a

corporation cannot conspire with its own agents or employees.”). For purposes of a civil

conspiracy, fellow employees are treated as one entity. Dunning v. Varnau, 2015 U.S.

Dist. LEXIS 132868 at *38 (S.D. Ohio 2015).

Here, no plausible claim for conspiracy has been alleged. The Complaint contains

allegations of interactions among only Defendants working for the City of Cincinnati. As

the Sixth Circuit has held, these allegations are not sufficient to support a conspiracy

claim. As such, Plaintiff’s conspiracy claim fails as a matter of law.

Last, Defendants argue that they are immune from Plaintiff’s section 1983 claims

under the doctrines of Qualified Immunity and Absolute Immunity. In this regard, the

qualified immunity doctrine “protects government officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Al-Lamadani v. Lang, 624 F.

App’x 405, 409 (6th Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009))

(internal quotation marks omitted). Here, all Defendants are entitled to qualified immunity

as to Plaintiff’s civil rights claims as Plaintiff’s Complaint fails to allege his constitutional

rights were violated. Al-Lamadani v. Lang, 624 F. App’x 405, 409 (6th Cir. 2004).

Similarly, “[p]rosecutors are entitled to absolute immunity for conduct ‘intimately

associated with the judicial phase of the criminal process.”’ Manetta v. Macomb Cnty,

Enforcement Team, 141 F.3d 270, 274 (6th Cir. 1998) (quoting Imbler v. Pachtman, 424

U.S. 409, 430 (1976)). Here Plaintiff brings a claim of malicious prosecution against

Prosecutors alleging they violated Rule 3.8: Special Responsibilities of a Prosecutor.

(Doc.3, PAGEID # 93, 95). As noted by Defendants, such conduct is associated with the

judicial phase of the criminal process. Therefore, the Defendant Prosecutors are entitled

to immunity in this case.

In light of the foregoing, the undesigned finds that Defendants’ motion to dismiss

is well-taken and should be granted, in toto.

C. Plaintiff’s motion to amend lacks merit.

After Defendants’ motion to dismiss was fully briefed and ripe for review, Plaintiff

filed a motion to amend his complaint. Plaintiff seeks to add additional defendants and

additional constitutional claims. However, Plaintiff notes that he “does not seek to add

additional facts.” (Doc. 13, PageID 426, para. 3).

“Under Rule 15(a)(1), a party may amend the complaint once as a matter of course

before being served with a responsive pleading.” Broyles v. Correctional Medical Serv.,

Inc., 2009 WL 3154241 (6th Cir.2009); see Pertuso v. Ford Motor Credit Co., 233 F.3d

417, 421 (6th Cir.2000). The Sixth Circuit has described this Rule as giving plaintiffs an

“absolute right to amend.” Pertuso, 233 F.3d at 421.

However, where a responsive pleading has been filed, “a party may amend its

pleading only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P.

15(a)(2). Although the “court should freely give leave when justice so requires,”

Fed.R.Civ.P. 15(a)(2), provides that leave to amend may be denied for: (1) undue delay,

(2) lack of notice to the opposing party, (3) bad faith, (4) repeated failure to cure in prior

amendments, (5) prejudice to the opposing party, or (6) futility of the amendments. Foman

v. Davis, 371 U.S. 178, 182 (1962); Perkins v. American Elec. Power Fuel Supply, Inc.,

246 F.3d 593, 605 (6th Cir.2001). “Amendment of a complaint is futile when the proposed

amendment would not permit the complaint to survive a motion to dismiss.” Miller v.

Calhoun Cnty., 408 F.3d 803, 817 (6th Cir.2005). To survive a motion to dismiss, a

complaint must contain sufficient factual allegations to state a claim that is plausible.

Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007). Furthermore, since there is already a fully briefed motion to dismiss pending, the

opposing party would be prejudiced by the amendment.

Plaintiff’s proposed amendment fails to meet the pleading standards outlined

in Iqbal and Twombly. Plaintiff expressly states he is not adding any additional factual

allegations in support of his claims. However, Plaintiff did attach an x-ray to the first

amended complaint but failed to provide any further explanation as to what the x-ray

shows, how the alleged injury occurred or who caused said alleged injury. (Doc. 14-1,

Exh. 3).1 As outlined above, Plaintiff’s conclusory statements and minimal factual

allegations fail to state any claim for relief. See McDougald v. Mahlman, No. 1:16-CV-

317, 2016 WL 6157625, at *2–3 (S.D. Ohio Oct. 6, 2016), report and recommendation

adopted, No. 1:16-CV-317, 2016 WL 6208580 (S.D. Ohio Oct. 21, 2016) (denying

motions to amend because “Plaintiff’s motions consist solely of unsupported allegations

and conclusory statements.”).

For these reasons, Plaintiff’s request to amend the complaint are not well-taken

and should be denied. Thus, Defendants’ motion to strike should also be denied as moot.

III. CONCLUSION

1 Plaintiff does allege that “Defendant-F pushed Plaintiff” but does not set forth any additional facts that connect that

push to any alleged injury. See Doc. 14-1, para. 19.

In light of the foregoing, IT IS RECOMMENDED THAT Defendants’ motion to

dismiss Plaintiff’s complaint (Doc. 9) be GRANTED; Plaintiff’s motion to amend (Doc. 13)

be DENIED; Defendants’ motion to strike (Doc. 16) be DENIED as moot; and this matter

be CLOSED.

s/Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES SULLIVAN, Case No. 1:21-cv-421

Plaintiff,

Black, J.

vs Bowman, M.J.

SAVON KELSEY, et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS after

being served with a copy thereof. That period may be extended further by the Court on

timely motion by either side for an extension of time. All objections shall specify the

portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in

support of the objections. A party shall respond to an opponent’s objections within

FOURTEEN DAYS after being served with a copy of those objections. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas

v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).