Givens v. Shadyside Police Department

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CAROL LYNN GIVENS,

Plaintiff,

v. Civil Action 2:22-cv-4252

Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

SHADYSIDE POLICE

DEPARTMENT, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Carol Lynn Givens, an Ohio resident who is proceeding without the assistance

of counsel, brings this action against the Shadyside Police Department and several officials of

the Village of Shadyside and Belmont County, Ohio, alleging that Defendants retaliated against

her for exercising her First Amendment rights to run for office and petition the government. This

matter is before the Court for the initial screen of Plaintiff’s Complaint under 28 U.S.C.

§ 1915(e) 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, Plaintiff MAY

PROCEED on her individual-capacity claims for First Amendment retaliation against Shadyside

Assistant Police Chief Jeffrey Todd Loeffler. The undersigned RECOMMENDS that the Court

DISMISS Plaintiff’s remaining claims for failure to state a claim on which relief may be

granted.

This matter is also before the Court for consideration of Plaintiff’s motion for leave to

proceed in forma pauperis under 28 U.S.C. § 1915(a)(1) and (2), which is GRANTED. It is

ORDERED that Plaintiff be allowed to prosecute her action without prepayment of fees or costs

and that judicial officers who render services in this action shall do so as if the costs had been

prepaid.

I. 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) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, in order to state a claim upon which relief may be granted, “a complaint must contain

sufficient factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up).

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)).

II. ANALYSIS

Plaintiff alleges that in 2021, her son Greg Givens ran for mayor of Shadyside against the

incumbent mayor, Robert Newhart. (Compl. ¶ 8, ECF No. 1-1.) Plaintiff also ran for a seat on the

Village Council for the Village of Shadyside in the same election. (Id. at PAGEID #33.) Plaintiff

further alleges that she made several reports to the Shadyside Police Department regarding

criminal conduct against her family by several associates of Mayor Newhart. (Id. at ¶ 36.) In

retaliation for these activities, Defendants Shadyside Police Department, Shadyside Police Chief

Donald L. Collette, Shadyside Assistant Police Chief Jeffrey Todd Loeffler, Shadyside Village

Code Administrator Joseph Klug, and Belmont County Prosecuting Attorney Kevin Flanagan

allegedly instituted a campaign of harassment against Plaintiff’s family, ranging from having

their vehicles towed, to making defamatory statements about them, to threatening them with

physical violence, to the wrongful death of Plaintiff’s brother-in-law, Dennis Givens. (Id. at ¶¶ 9,

26–29, 35–36, 41, 47.) Plaintiff’s Complaint lists four counts, but Count III (for

“Misappropriation/Official Abuse of Position of Authority and Office”) appears to be redundant

with Count II (“Retaliation for Reporting Federal and State Crime(s)”), and Count IV simply

lists Plaintiff’s requests for monetary and injunctive relief. The undersigned therefore construes

Plaintiff’s Complaint to advance two claims: Count I (wrongful death of Dennis Givens), and

Count II (First Amendment retaliation under 42 U.S.C. § 1983).

A. Claims by Greg Givens

As an initial matter, the Complaint lists only Carol Givens as a Plaintiff in the case

caption and is signed only by Carol Givens, but the body of the Complaint also at times refers to

Greg Givens as a Plaintiff. Because “a nonlawyer can’t handle a case on behalf of anyone except

himself,” Zanecki v. Health Alliance Plan of Detroit, 576 F. App’x 594, 595 (6th Cir. 2014)

(cleaned up), Carol Givens may not maintain an action on Greg Givens’s behalf. Therefore, to

the extent the Complaint purports to advance any claims on behalf of Greg Givens, the

undersigned RECOMMENDS that those claims be dismissed.

B. Wrongful Death

Plaintiff’s Count I claim for wrongful death states in a conclusory fashion that

Defendants are responsible for the death of her brother-in-law Dennis Givens, but provides no

facts concerning the time or manner of his death or who in particular was responsible. Even

liberally construing Plaintiff’s allegations, she has failed to plausibly allege any facts suggesting

that any of the Defendants are responsible for Dennis Givens’s death. Accordingly, the

undersigned RECOMMENDS that the Court DISMISS Plaintiff’s Count I for wrongful death.

C. Official-Capacity Claims

Plaintiff’s Count II claim for First Amendment retaliation is asserted against all five

Defendants in both their official and individual capacities. “While personal-capacity suits seek to

impose personal liability upon a government official for actions he takes under color of state law,

individuals sued in their official capacities stand in the shoes of the entity they represent.” Alkire

v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (cleaned up) (quoting Kentucky v. Graham, 473 U.S.

159, 165 (1985)). Thus, “[a] suit against an individual in his official capacity is the equivalent of

a suit against the governmental entity.” Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).

Applied here, Plaintiff’s official-capacity claims are advanced against the Village of Shadyside

and Belmont County.

“[A] local government may not be sued under § 1983 for an injury inflicted solely by its

employees or agents. Instead, it is when execution of a government’s policy or custom . . .

inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 694 (1978); Nichols v. Wayne Cty. Mich., 822 F. App’x 445, 448

(6th Cir. 2020) (“To state a municipal-liability claim under § 1983, the plaintiff must allege the

deprivation (1) of a right secured by the Constitution or laws of the United States, (2) that was

directly caused by a municipal policy or custom.”) (citing Hardrick v. City of Detroit, 876 F.3d

238, 243 (6th Cir. 2017)). A plaintiff may prove an unconstitutional “policy” or “custom” by

demonstrating one of the following: “(1) the existence of an illegal official policy or legislative

enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the

existence of a policy of inadequate training or supervision; or (4) the existence of a custom of

tolerance or acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478

(6th Cir. 2013) (citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).

Here, Plaintiff has not plausibly alleged any facts upon which the Court could rely to

conclude that an official policy or custom of the Village of Shadyside or Belmont County

resulted in the violation of her constitutional rights. Consequently, it is RECOMMENDED that,

to the extent Plaintiff intends to sue Defendants in their official capacities for First Amendment

retaliation, those claims be DISMISSED.

Similarly, the Shadyside Police Department, “being a mere arm of the [Village of

Shadyside], is not its own entity, and is not capable of being sued (i.e., it is not sui juris).” Hale

v. Vance, 267 F. Supp. 2d 725, 737 (S.D. Ohio 2003). Accordingly, it is further

RECOMMENDED that Plaintiff’s Claims against the Shadyside Police Department be

DISMISSED.

D. Individual-Capacity Claims against Kevin Flanagan

The undersigned moves next to Plaintiff’s individual-capacity claims. No matter how

liberally the Court construes Plaintiff’s Complaint, Belmont County Prosecuting Attorney Kevin

Flanagan is entitled to absolute immunity from civil liability. Prosecutors are entitled to absolute

immunity from suit when acting within the scope of their duties. See Imber v. Pachtman, 424

U.S. 409, 427 (1976) (prosecutors immune for actions taken within the scope of duty). Plaintiff’s

Complaint states only that Flanagan failed to act on Plaintiff’s reports of criminal activity and

contains no plausible allegations upon which this Court could rely to conclude that Flanagan’s

actions were taken outside the scope of his prosecutorial duties. (Compl. ¶ 41, ECF No. 1-1.)

Accordingly, the undersigned RECOMMENDS that the Court DISMISS Plaintiff’s individual-

capacity claims against Kevin Flanagan.

E. Individual-Capacity Claims against Donald Collette and Joseph Klug

Plaintiff alleges Defendant Donald Collette had Greg Givens’s car towed, engaged in

“menacing of power lines and utilities” at the campaign headquarters used by Carol and Greg

Givens, and drew his gun on Carol Givens. (Compl. ¶¶ 27, 35, 41, ECF No. 1-1.) Plaintiff further

alleges that Defendant Joseph Klug falsely attested that Carol and Greg Givens were drunk while

circulating petitions for their candidacy for mayor and village council president, falsely attested

that Carol, Greg, and/or Dennis Givens were properly served with notice concerning village code

violations, menaced Carol and Greg Givens outside their home with torches and weapons, and

trespassed and dumped debris on Carol and Greg Givens’s property. (Id. at ¶¶ 26, 28, 37–38.)

Plaintiff alleges in a conclusory fashion that these actions were taken in retaliation for Carol’s

prior testimony in a criminal case, Carol and Greg’s political opposition of Mayor Newhart, or

Carol’s reports of criminal activity to the Shadyside Police Department. (Id. at, e.g., ¶¶ 10, 22,

26–29, 35, 41.)

“As a general matter the First Amendment prohibits government officials from subjecting

an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S.

Ct. 1715, 1722 (2019) (cleaned up). In order to adequately plead a First Amendment retaliation

claim, a plaintiff must allege:

(1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse action

was taken against the plaintiff that would deter a person of ordinary firmness from

continuing to engage in that conduct; and (3) the adverse action was motivated at

least in part by the plaintiff’s protected conduct.

Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012). Plaintiff’s Complaint

sufficiently alleges that at least some of her conduct is protected activity and that Collette and

Klug took adverse actions against her. See, e.g., Rudd v. City of Norton Shores, Mich., 977 F.3d

503, 513–14 (6th Cir. 2020) (filing complaints is a protected exercise of the First Amendment

right to petition the government); Kubala v. Smith, 984 F.3d 1132, 1139 (6th Cir. 2021)

(“[A]ttending political functions in support of candidates and running for political office are

paradigmatic examples of protected speech.”); Zilich v. Longo, 34 F.3d 359, 365 (6th Cir. 1994)

(finding “physical threats, harassment and vandalism” to be sufficient adverse actions to support

a First Amendment retaliation claim).

However, Plaintiff has not alleged any facts on which the Court could rely to conclude

that Collette’s and Klug’s adverse actions were motivated by Plaintiff’s protected conduct.

Although “proof of an official’s retaliatory intent rarely will be supported by direct evidence of

such intent,” Bloch v. Ribar, 156 F.3d 673, 682 (6th Cir. 1998), “conclusory allegations of

retaliatory motive unsupported by material facts will not be sufficient to state a claim.” Hill v.

Lappin, 630 F.3d 468, 475 (6th Cir. 2010) (cleaned up). Here, Plaintiff has not alleged any facts

that could constitute even circumstantial evidence of retaliatory motive by either Collette or

Klug, such as temporal proximity between the protected conduct and the adverse action, or

disparate treatment by Collette and Klug of individuals similarly situated to Plaintiff. Cf. Hill,

630 F.3d at 475–76. Plaintiff’s allegations that Collette’s and Klug’s actions were motivated by

her protected conduct are merely conclusory and are therefore insufficient. Accordingly, the

undersigned RECOMMENDS that the Court DISMISS Plaintiff’s individual-capacity claims

against Defendants Collette and Klug.

F. Individual-Capacity Claims against Jeffrey Todd Loeffler

Plaintiff alleges that on May 19, 2022, she attempted to report a crime to the Shadyside

Police Department, but that Defendant Loeffler “lunged” at her while screaming “no more!” and

“that’s enough!” in reference to Plaintiff’s reports of criminal activity. (Compl. ¶ 36, ECF No. 1-

1.) Plaintiff further alleges that on other occasions, Loeffler had her campaign van towed, filed

false police reports against her, and pulled his gun on her without probable cause. (Id. at ¶¶ 29,

31, 47.) Again, Plaintiff has sufficiently alleged protected activity (petitioning the government by

filing criminal complaints) and an adverse action by Loeffler (threatening her with violence and

harassing her by towing her vehicle and filing false police reports). See Rudd, 977 F.3d at 513–

14; Zilich, 34 F.3d at 365. Additionally, in contrast to her claims against Defendants Collette and

Klug, Plaintiff’s allegation that Defendant Loeffler threatened her with physical violence while

admonishing her to stop filing criminal complaints is sufficient to plausibly allege that Loeffler

was motivated by Plaintiff’s protected activity when he took these adverse actions against

Plaintiff. Accordingly, Plaintiff MAY PROCEED on her individual-capacity claim against

Defendant Loeffler for First Amendment retaliation.

III. DISPOSITION

For the foregoing reasons, Plaintiff MAY PROCEED on her individual-capacity claims

for First Amendment retaliation against Shadyside Assistant Police Chief Jeffrey Todd Loeffler.

The undersigned RECOMMENDS that the Court DISMISS Plaintiff’s remaining claims for

failure to state a claim on which relief may be granted.

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