Tsibouris v. Colerain Township

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

:

DENISE Y. TSIBOURIS,

:

:

Plaintiff,

:

Case No. 1:22-cv-458

:

v.

:

Judge Jeffery P. Hopkins

:

COLERAIN TOWNSHIP, et al.,

:

:

Defendants.

:

ORDER ADOPTING REPORT AND RECOMMENDATIONS (DOC. 4, 10) AND

OVERRULING OBJECTIONS (DOC. 7)

This matter comes before the Court on the Magistrate Judge’s August 29, 2022, Report

and Recommendation (the “First R&R”) (Doc. 4) and October 31, 2022, Report and

Recommendation (the “Second R&R”) (Doc. 10). After performing an initial screen of

Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2), the Magistrate Judge recommended

that the Court dismiss Plaintiff’s Complaint in its entirety for failure to state a claim on which

relief may be granted. Doc. 4. The Magistrate Judge later recommended that the Court deny

Plaintiff’s motion for leave to proceed in forma pauperis on appeal because the motion was

prematurely filed and any in forma pauperis appeal would not be taken in good faith under 28

U.S.C § 1915(a)(3). Doc. 10. Plaintiff has objected to the Magistrate Judge’s First R&R. (Doc.

4).1 Plaintiff has not objected to the Second R&R, and the time for doing so under Fed. R.

Civ. P. 72(b) has expired.

1 Plaintiff submitted a letter (Doc. 7) to the Court, directed at Chief Judge Algenon L. Marbley, challenging the

Magistrate Judge’s First R&R. The Court construes the contents of her letter as formal objections to the

Magistrate Judge’s findings and recommendations under Fed. R. Civ. P. 72(b).

For the reasons stated more fully below, the Court OVERRULES Plaintiff’s objections

and ADOPTS the First R&R and Second R&R in full. The Court thus DISMISSES Plaintiff’s

Complaint with prejudice, CERTIFIES that any appeal would be frivolous, and DENIES

Plaintiff’s motion for leave to appeal in forma pauperis.

LAW AND ANALYSIS

A district judge must review de novo any objections to a magistrate judge’s report and

recommendation. Fed. R. Civ. P. 72(b)(3). Review applies only to “any portion to which a

proper objection was made.” Richards v. Colvin, No. 2:12-cv-748, 2013 WL 5487045, at *1

(S.D. Ohio Sept. 30, 2013). If presented with a proper objection, “[t]he district judge may

accept, reject, or modify the recommended disposition; receive further evidence; or return the

matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3).

Plaintiff has asserted objections here—but many are purely general objections that

have “the same effect[] as would a failure to object.” Howard v. Sec’y of Health & Hum. Servs.,

932 F.2d 505, 509 (6th Cir. 1991); see also Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)

(“The objections must be clear enough to enable the district court to discern those issues that

are dispositive and contentious.”); Stamtec, Inc. v. Anson, 296 Fed App’x 518, 520 (6th Cir.

2008) (“Objections disputing the correctness of the magistrate’s recommendation, but failing

to specify the findings believed to be in error are too general and therefore insufficient.”).

Having carefully reviewed the comprehensive findings and conclusions of the Magistrate

Judge and considered de novo all filings in this case, with particular attention to the issues as

to which Plaintiff lodged specific objections, the Court determines that the Magistrate Judge’s

First R&R and Second R&R (Doc. 4, 10) should be adopted in full.

Plaintiff objects to the Magistrate Judge’s determination that her claims for excessive

use of force, false arrest, false imprisonment, and racial profiling are time-barred. She

acknowledges that she “knew [her] case on the surface would be considered time-barred,” but

alleges that there was a “deliberate” attempt to prevent her from timely filing this case. Doc.

7, PageID 45–46. Plaintiff, however, does not offer any facts related to a “deliberate attempt,”

nor provide any plausible basis as to why she should be excused from the statute of limitations

for these claims. Plaintiff filed this case nearly a year after the two-year statute of limitations

expired. Accordingly, the undersigned finds Plaintiff’s objection to lack merit. See Jones v.

Bock, 549 U.S. 199, 215 (2007); Browning v. Pendleton, 869 F.2d 989, 992 (6th Cir. 1989)

(“[T]he appropriate statute of limitations for 42 U.S.C. § 1983 civil rights actions arising in

Ohio is contained in Ohio Rev. Code § 2305.10, which requires that actions for bodily injury

be filed within two years after their accrual.”).

Plaintiff also challenges the Magistrate Judge’s conclusion that her claims must be

dismissed because she does not provide factual allegations that specify unlawful conduct or

inaction by the individually named defendants. She states that she knows “EXACTLY what

each and everyone [sic] of the defendants did to [her] as part of the charges that [she] has

brought before the court,” and that the “listed police officers” stalked, attacked, assaulted,

injured, and racially profiled her. Doc. 7, PageID 47 (emphasis in original). Even so, her

vague and conclusory allegations against the six listed police officers—two of whom are

associated with two different police departments—leave the Court to speculate about the

conduct of each individual defendant. Because she fails to provide sufficient factual context

that would support any inference that the individual defendants violated Plaintiff’s rights, her

claims must be dismissed. See Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008).

Next, Plaintiff challenges the Magistrate Judge’s conclusions as to her malicious

prosecution claim. Contrary to her assertions, the undersigned agrees that Plaintiff failed to

plead the first element: that “the officers participated in or influenced the decision to

criminally prosecute [her].” Novak v. City of Parma, 33 F.4th 296, 307 (6th Cir. 2022). And to

the extent Plaintiff argues that she intended to also assert a claim for malicious prosecution

under Ohio law, this claim must too be dismissed for failure to state a claim.

To establish a claim for malicious prosecution under Ohio law, Plaintiff must show:

“(1) malice in instituting or continuing the prosecution; (2) lack of probable cause; and

(3) termination of the prosecution in his favor.” Wright v. City of Euclid, 962 F.3d 852, 878 (6th

Cir. 2020) (citing Ash v. Ash, 561 N.E.2d 945, 947 (Ohio 1995)). “Ohio law defines ‘malice’

as ‘an improper purpose, or any purpose other than the legitimate interest of bringing an

offender to justice.’” Id. (quoting Harris v. Barnhorst, 513 F.3d 503, 521 (6th Cir. 2008) (other

citations omitted)). Aside from asserting that some charges resolved in her favor, Plaintiff has

failed to plead the remaining elements of a malicious prosecution claim under Ohio law. See

Barhite v. Caruso, 377 F. App’x 508, 510 (6th Cir. 2010) (quoting Mezibov v. Allen, 411 F.3d

712, 716 (6th Cir. 2005) (A pro se “complaint ‘must contain either direct or inferential

allegations respecting all material elements’ to recover under some viable legal theory.”).

Plaintiff’s objections to the Magistrate Judge’s recommended dismissal of claims

against Colerain Township are also without merit. To properly assert claims against Colerain

Township, Plaintiff needs to plead sufficient facts that would show Colerain Township has a

specific policy, custom, or practice that caused the constitutional violations she alleges. See

Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008) (“To succeed on a § 1983 claim against

a local government, the plaintiff must also prove that the injury about which she complains

was caused by an unconstitutional government policy or custom.”). While she says that she

“can show that Colerain Township and their Board of Trustees and several of their police

officers engaged in behavior that forms a pattern of actions or is embedded in routine

practices,” she offers only a conclusory, speculative statement. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (A pleading “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.”).

Plaintiff also fails to state a claim for relief for felonious stalking under federal and

state law. There is no private right of action for stalking under federal law. See 18 U.S.C.

§ 2261A; Am. Postal Workers Union v. Indep. Postal Sys., Inc., 481 F.2d 90, 92 (6th Cir. 1973)

(“[T]he general rule is that a private right of action is not maintainable under a criminal

statute.”). And, here, Plaintiff fails to plausibly allege a claim for “felonious stalking,” i.e.,

menacing by stalking, under Ohio law. See Ohio Rev. Code § 2903.211(A)(1) (“No person by

engaging in a pattern of conduct shall knowingly cause another person to believe that the

offender will cause physical harm to the other person or a family or household member of the

other person or cause mental distress to the other person or a family or household member of

the other person.”). Plaintiff objects on the basis that defendants’ actions were so “obvious”

that “it will be amazingly easy to present witnesses to this atrocity,” but her conclusory

assertions do not rescue the state-law claim. Doc. 7, PageID 44.

Plaintiff’s final objections must also fail. Plaintiff suggests that she should have been

entitled to a “notice of intent to dismiss” or a continuance to “give [her] time to lay the

foundation of each of [her] complaints.” Doc. 7, PageID 42, 45. She says that more time

would have enabled her “to present all the damning evidence with sufficient documentation,

and affidavits and witnesses testimonies to proceed to a jury trial.” Id. at PageID 45. Yet under

28 U.S. § 1915(e)(2)(B), the court may dismiss a case at any time if the court determines that

the action is frivolous or malicious, fails to state a claim on which relief may be granted, or

seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.

§ 1915(e)(2)(B). That is what happened here. Plaintiff had an opportunity to present

objections under Fed. R. Civ. P. 72(b) and she did so. Plaintiff did not request a continuance

or additional time to plead her claims, seek to amend her pleadings, nor submit a proposed

amended complaint. See also Sinay v. Lamson & Session Co., 948 F.2d 1037, 1042 (6th Cir. 1991)

(“[A] district court does not abuse its discretion in failing to grant a party leave to amend

where such leave is not sought.”). As a result, her remaining objections are not well-taken.

CONCLUSION

Accordingly, it is hereby ORDERED that Plaintiff's objections to the First R&R are

OVERRULED, that the Magistrate Judge’s First and Second R&Rs (Doc. 4, 10) are

ADOPTED in their entirety, andthat the Complaint (Doc. 3) be DISMISSED with prejudice

for failure to state a claim on which relief may be granted. For the reasons stated in the First

R&R and the Second R&R, and pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that

an appeal of this Order would lack an arguable basis in law or in fact and thus would not be

taken in good faith. The Court therefore DENIES Plaintiff's motion for leave to appeal in

forma pauperis (Doc. 9). In accordance with Fed. R. App. P. 24(a)(5), Plaintiff remains free to

file a motion for leave to proceed on appeal in forma pauperis in the Sixth Circuit Court of

Appeals. Callihan v. Schneider, 178 F.3d 800, 803 (6th Cir. 1999).

IT IS SO ORDERED.

Dated: September 30, 2023 arpa, L <llvea—

on.Sdfexy P. Hopkins

United States District Judge