# Hill v. Pell

> District Court, S.D. Ohio · December 28, 2023

URL: https://www.frixlaw.com/law-library/cases/10383745

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** December 28, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10383745

## How later opinions describe it (automated extraction)

- holding that the “dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim under §§ 1915A(b)(1) and 1915(e)(20(B)(ii)”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MARK A. HILL, : Case No. 2:21-cv-04142
:
Plaintiff, : Chief Judge Algenon L. Marbley
: Magistrate Judge Caroline H. Gentry
vs. :
:
JENNIFER PELL, et al.,
:
Defendants. :

ORDER AND REPORT AND RECOMMENDATION

Plaintiff Mark Hill, an Ohio inmate who is proceeding without the assistance of
counsel, filed this lawsuit against several individuals after a state-court jury convicted
him on a charge of felonious assault. Plaintiff, who is Black, alleges that Defendants, who
are White, conspired to deprive him of his civil rights by failing to assist him in his
defense and to provide exculpatory videos after his trial. (Complaint, Doc. No. 1.)
This matter is before the undersigned Magistrate Judge upon the following
motions: Plaintiff’s Emergency Motion to Strike the Answer(s)/Letter(s) of Defendants
Rita Hamm and Anita L Hamm (“First Motion to Strike,” Doc. No. 25); Plaintiff’s
Emergency Rule 25(a)(1) Motion for Substitution of Defendant Rita Hamm with
Executor of Estate Anita L. Hamm (“Motion to Substitute,” Doc. No. 26); Plaintiff’s
Motion for Expedited Rule 55(b)(2) Default Judgment and Rule 54(c) Demand for
Judgment Against Defendants Brittany N. Hamm and Eric B. Kovachs (“First Motion for
Default Judgment,” Doc. No. 27); Defendant Pell’s1 Motion to Dismiss (Doc. No. 33);
Plaintiff’s Motion to Strike Defendant Anita L. Hamm’s Undated Letter Filed in July

2023 (“Second Motion to Strike,” Doc. No. 36); Plaintiff’s Motion for Expedited Rule
55(b)(2) Default Judgment and Rule 54(c) Demand for Judgment Against Defendant
Scott Crawford (“Second Motion for Default Judgment,” Doc. No. 41); and Plaintiff’s
Fed. R. Civ. P. 11(c)(2) Motion for Sanctions Against Defendant Anita L. Hamm
(“Motion for Sanctions,” Doc. No. 43).
For the reasons set forth below, the undersigned denies Plaintiff’s Motions to

Strike and recommends that the District Judge: (1) deny Plaintiff’s Motion for Sanctions,
(2) grant Defendant Pell’s Motion to Dismiss and dismiss Plaintiff’s claims against
Defendant Pell without prejudice, (3) dismiss Plaintiff’s claims against the remaining
Defendants without prejudice, and (4) deny Plaintiff’s remaining motions as moot.
I. PLAINTIFF’S MOTIONS TO STRIKE (DOC. NOS. 25 & 36)

In his Motions to Strike, Plaintiff seeks Court orders that strike from the record the
Answers filed by Defendant Rita Hamm (Doc. No. 13) and Defendant Anita Hamm (Doc.
No. 14), as well as a subsequent brief filed by Defendant Anita Hamm (Doc. No. 32).
A. Background
After Defendant Rita Hamm was served with Plaintiff’s Complaint, she submitted

a handwritten letter to the Court in May 2022. (Doc. No. 13.) The letter described her
version of the events underlying Plaintiff’s conviction. (Id. at PageID 99-102.) In

1 Plaintiff’s Complaint names Jennifer Pell as a Defendant. (Doc. No. 1, PageID 2.) This Defendant has indicated
that her name is Jennifer Schneid. (Doc. No. 28, PageID 199.) However, because the last name “Pell” has been used
on the docket and in the case caption, the Court will continue to use it here for the sake of consistency.
addition, after stating that three of her great-grandchildren are biracial, Defendant Rita
Hamm asserted: “I am not against black people.” (Id. at PageID 99.)

In June 2022, Defendant Anita Hamm similarly submitted a handwritten letter to
the Court after she was served with Plaintiff’s Complaint. (Doc. No. 14.) She explained:
“I am writing this letter to the court in the [sic] regards to the complaint filed against me
by Mark A. Hill.” (Id. at PageID 104.) Defendant Anita Hamm discussed the events
underlying Plaintiff’s conviction, denied the allegations in Plaintiff’s Complaint, and
stated: “I did not conspire with [any]one.” (Id. at PageID 104-08.)

The Clerk docketed each of these letters as an Answer, which is a formal pleading
that responds to a Complaint. See Fed. R. Civ. P. 7(a). It appears that Plaintiff did not
receive a copy of either Answer at the time they were filed. Neither Answer contained a
certificate of service as required by the Federal Rules of Civil Procedure and this Court’s
local rules. See Fed. R. Civ. P. 5(d)(1) & S.D. Ohio Civ. R. 5.2.

In his First Motion to Strike (Doc. No. 25), Plaintiff seeks to strike both Answers
from the record. He states that he first learned about them in February 2023, during a
telephone conversation with an employee from the Clerk of Court’s office. (Id. at PageID
175.) Plaintiff argues that Defendants’ “failure to serve their Answer[s]/Letter[s] upon
[him] is either an intentional delay tactic utilized to thwart, or otherwise hinder, this

judicial proceeding or a reckless disregard for the prejudicial effect of their conduct on
this proceeding.” (Id. at PageID 176.)
Defendant Anita Hamm responded to the First Motion to Strike with a letter that
asked the Court to deny the Motion and also Plaintiff’s “complaints of conspiracy.”
(Response, Doc. No. 32, PageID 217.) Again, her letter did not include the required
certificate of service. Defendant Rita Hamm did not file a response.

In his Second Motion to Strike (Doc. No. 36), Plaintiff seeks an order that strikes
Defendant Anita Hamm’s Response to the First Motion to Strike (Doc. No. 32) from the
record. Although Plaintiff acknowledges that he received a copy of the Response in the
mail, he argues that it should nevertheless be stricken from the record because it does not
contain either a case caption or a certificate of service. (Id. at PageID 240.)
B. Law and Analysis

The Court must consider several legal principles when ruling on Plaintiffs’
Motions to Strike.
The Answers that Plaintiff seeks to strike are formal pleadings. Fed. R. Civ. P.
7(a). The “action of striking a pleading should be sparingly used by the courts.” Brown &
Williamson Tobacco Corp. v. U.S., 201 F.2d 819, 822 (6th Cir. 1953), quoted in

Anderson v. U.S., 39 F. App’x 132, 135 (6th Cir. 2002). The Sixth Circuit has cautioned
that this “drastic remedy” is “to be resorted to only when required for the purposes of
justice . . . [and] only when the pleading to be stricken has no possible relation to the
controversy.” Id. Here, the Answers are indisputably related to the controversy. This legal
principle therefore weighs heavily against Plaintiff’s First Motion to Strike.

With respect to both the Answers and the Response, the Court must also consider
the right of public access to judicial records. The Sixth Circuit has repeatedly recognized
that “[t]he public has a strong interest in obtaining the information contained in the court
record.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir.
2016) (quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th
Cir. 1983)). Because “[o]nly the most compelling reasons can justify non-disclosure of

judicial records,” Shane Grp., Inc., 825 F.3d at 305, courts should rarely grant motions to
strike documents that have been filed in a case. E.g., Lipman v. Budish, 974 F.3d 726,
752-53 (6th Cir. 2020) (directing the district court to vacate its order striking certain
filings from the record). This legal principle weighs heavily against Plaintiff’s First and
Second Motions to Strike.
Finally, the Sixth Circuit has held that “[t]he rights of pro se litigants require

careful protection where highly technical requirements are involved, especially when
enforcing those requirements might result in a loss of the opportunity to prosecute or
defend a lawsuit on the merits.” Brown v. Matauszak, 415 F. App’x 608, 616 (6th Cir.
2011). Therefore, this Court has the discretion to overlook technical violations. E.g., Ruhl
v. Brown, No. 2:13-CV-00716, 2015 WL 5117951, at *2-3 (S.D. Ohio Sept. 1, 2015)

(Marbley, D.J.) (denying motion to strike pro se plaintiff’s filing that exceeded page limit
and noting that “the Court chooses to hold his briefing to a less stringent standard.”).
Here, striking these Defendants’ Answers might “result in a loss of the opportunity to . . .
defend a lawsuit on the merits.” Brown, 415 F. App’x at 616. Therefore, this legal
principle weighs heavily against Plaintiff’s First Motion to Strike.

In light of all these considerations, the undersigned finds that orders striking the
Answers and the Response are unwarranted and unsupported by the governing case law.
Accordingly, the Court DENIES Plaintiff’s First Motion to Strike (Doc. No. 25) and
Second Motion to Strike (Doc. No. 36). In addition, in an abundance of caution, the Court
DIRECTS the Clerk of Court to mail copies of both Answers (Doc. Nos. 13 & 14) to
Plaintiff at his address of record.

II. PLAINTIFF’S MOTION FOR SANCTIONS (DOC. NO. 43)
In his Motion for Sanctions (Doc. No. 43), Plaintiff argues that Defendant Anita
Hamm’s Response to the First Motion to Strike (Doc. No. 32) violates Rule 11 of the
Federal Rules of Civil Procedure because it contains untrue factual representations,
demands that the Court deny Plaintiff’s Complaint, and threatens to hire counsel if the
Court does not deny Plaintiff’s Complaint. Finding that Plaintiff’s Motion for Sanctions

is not well-taken, the undersigned RECOMMENDS that it be DENIED.
Rule 11(b) imposes certain requirements upon any attorney or unrepresented party
who submits a filing in federal court. Fed. R. Civ. P. 11(b). The core requirement of Rule
11 is an obligation to act reasonably. Salkil v. Mount Sterling Twp. Police Dep’t, 458
F.3d 520, 528 (6th Cir. 2006). Thus, “the test for whether Rule 11 sanctions are

warranted is whether the conduct for which sanctions are sought was ‘reasonable under
the circumstances.’” Id.
Defendant Anita Hamm’s Response states:
I am writing this court again regarding my answer to Mark A. Hill’s civil
complaints against me and also my mother, estate of Rita A. Hamm. I am
asking the court to deny the motion to strike all previous letters from Anita
L. Hamm and Rita A. Hamm and to once again deny his complaints of
conspiracy with all defendants indicated in his complaints. I am denying
any involvement with his case. I was not present, nor do I have any
knowledge as to what happened. I believe that Mr. Hill made a bad choice
and that is why he is where he is today. I absolutely do not feel comfortable
in rendering an answer to him directly and do not want to have any further
contact with Mark A. Hill (my daughter’s ex-boyfriend) who is providing
him with my information. If this is not denied, I will be seeking legal
counsel going forward.
(Doc. No. 32, PageID 217.)
The undersigned concludes that these statements are eminently reasonable under
the circumstances. Defendant Anita Hamm is plainly entitled to deny Plaintiff’s factual

allegations, to ask the Court to dismiss his Complaint, and to hire legal counsel. None of
these statements comes even remotely close to violating Rule 11. Moreover, the truth of a
litigant’s factual denials is not a proper subject for a Rule 11 motion. See, e.g., Favor v.
W.L. Fore Assocs., Inc., No. 2:13-CV-00655, 2014 WL 533804, at *6 (S.D. Ohio Feb.
11, 2014) (Frost, D.J.) (denying Rule 11 motion that “put[] the Court in the odd position

of being required to make evidentiary determinations at the pleadings stage”).
Accordingly, the undersigned Magistrate Judge RECOMMENDS that Plaintiff’s
Motion for Sanctions (Doc. No. 43) be DENIED.
III. DEFENDANT PELL’S MOTION TO DISMISS (DOC. NO. 33)
In her Motion to Dismiss (Doc. No. 33), Defendant Pell seeks an order dismissing

Plaintiff’s Complaint for failure to state a claim upon which relief can be granted under
Rule 12(b)(6) and failure to join necessary parties under Rule 12(b)(7). Finding it to be
dispositive, the undersigned addresses only the motion to dismiss under Rule 12(b)(6).
A. Statement of Facts
The following statement of facts is taken from the factual allegations set forth in

Plaintiff’s Complaint. For purposes of ruling on a Rule 12(b)(6) motion to dismiss for
failure to state a claim upon which relief can be granted, the Court construes the
Complaint in Plaintiff’s favor and accepts all well-pleaded factual allegations as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) The Court does not, however, consider any

“legal conclusion couched as a factual allegation” to be true. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
Plaintiff’s claims arise from his criminal case in state court, where he was tried
and convicted on a charge of felonious assault in violation of Ohio Revised Code Section
2903.11. (Doc. No. 1, PageID 7 & 18.) Briefly, Plaintiff was convicted for hitting Martie
Jacobs in the face with a sledgehammer on August 25, 2018. (Id. at PageID 7-8.)

1. Allegations against Defendant Brittany Hamm
Plaintiff claims that Defendant Brittany Hamm, who is White, violated his civil
rights by failing to testify on his behalf and also failing to make an exculpatory video
after the trial, despite her promise to do so. (Doc. No. 1, PageID 7 & 11.) He also claims
that Defendant Brittany Hamm conspired with other Defendant to fraudulently conceal

the existence of Defendant Pell as an eyewitness. (Id. at PageID 12-13.)
Plaintiff and Defendant Brittany Hamm were “in a mixed-race relationship” from
Spring 2017 through at least August 2018. (Doc. No. 1, PageID 3.)
On August 25, 2018, Defendant Brittany Hamm was visiting the home of her
grandmother, Defendant Rita Hamm, when she called Plaintiff and asked him to pick her

up. (Doc. No. 1, PageID 3.) While she was waiting, Martie Jacobs approached Defendant
Brittany Hamm and propositioned her sexually. She declined. Jacobs then punched
Defendant Brittany Hamm in the eye. (Id.) Approximately fifteen minutes later, Jacobs
“physically assaulted [Defendant] Brittany [Hamm] again” in the presence of Defendant
Brittany Hamm’s young daughter and Defendant Rita Hamm. (Id. at PageID 4.)

After Jacobs punched her, Defendant Brittany Hamm “went across the street and
sat crying with [Defendant Pell].” (Doc. No. 1, PageID 8.) When Plaintiff arrived to pick
up Defendant Brittany Hamm, she was seated outside and was crying. (Id.)
Together, Plaintiff and Defendant Brittany Hamm confronted Jacobs about his
assault. (Doc. No. 1, PageID 4.) Although Plaintiff denies the allegation, Jacobs told
police that Plaintiff “had hit him twice in the face with a sledgehammer.” (Id.) Plaintiff

states that after Jacobs “threw a punch” at his face, Plaintiff “responded with four quick
punches to [Jacobs’] face in self-defense.” (Id. at PageID 4-5.)
Defendant Brittany Hamm provided a “detailed account of the events occurring on
August 25, 2018” to Plaintiff’s investigator. (Doc. No. 1, PageID 6.) She also attended a
pretrial conference in Plaintiff’s state-court criminal case. (Id.) However, despite having

received a trial subpoena, she “intentionally failed to appear on time” to testify at trial in
Plaintiff’s defense. (Id. at PageID 7 (emphasis omitted).)
In April 2021, Defendant Brittany Hamm told Plaintiff that she wanted to “record
a video, to be posted on several social media forums, in order to publicly acknowledge
that Plaintiff is only in prison because he is a Black man and that it isn’t right.” (Doc. No.

1, PageID 8 (capitalization adjusted).) However, she later “expressed concerns to Plaintiff
about doing the video,” and ultimately did not make a video. (Id. at PageID 9 & 11.)
Plaintiff alleges that Defendant Brittany Hamm conspired with other Defendants to
deprive him of his civil rights because he is a Black man. (Doc. No. 1, PageID 12-13.)
2. Allegations against Defendant Jennifer Pell
Plaintiff claims that Defendant Pell, who is White, violated his civil rights by

“giving false and misleading statement(s) to investigator(s)” and by declining to testify
on his behalf because he is a Black man. (Doc. No. 1, PageID 9-13.)
On the date of the assault, Defendant Pell allegedly “eyewitnessed [sic] Martie
[Jacobs] demand oral sex for $20 from [Defendant] Brittany [Hamm] and then punch her
when she told him ‘no.’” (Doc. No. 1, PageID 8.) Defendant Pell also allegedly saw
Plaintiff “exit [his] truck without a sledgehammer and walk up the brightly lit driveway

to where [Defendant] Brittany [Hamm] was sitting and crying.” (Id. at PageID 9.)
Defendant Pell refused to speak with Plaintiff’s investigator or, years later, with
Defendant Brittany Hamm about what she had witnessed. (Doc. No. 1, PageID 10-11.)
Plaintiff alleges that Defendant Pell was “good friends” with Jacobs and “they are
like-minded in their beliefs [about] and dislikes of Black men based upon color.” (Doc.

No. 1, PageID 10.) He alleges that Defendant Pell conspired with other Defendants to
deprive him of his civil rights because he is a Black man. (Id. at PageID 12.)
3. Allegations against Defendant Scott Crawford
Plaintiff claims that Defendant Crawford, who is married to Defendant Pell and is
White, violated his civil rights by “fraudulently concealing that [Pell] has eyewitness

knowledge favorable to Plaintiff regarding the events on August 25, 2018, and by giving
false and misleading statement(s) to investigator(s).” (Doc. No. 1, PageID 13.)
Plaintiff alleges that Defendant Crawford was “good friends” with Jacobs and
“they are like-minded in their beliefs [about] and dislikes of Black men based upon
color.” (Doc. No. 1, PageID 10.) He alleges that Defendant Crawford conspired with
other Defendants to deprive him of his civil rights because he is a Black man. (Id. at

PageID 12.)
4. Allegations against Defendant Anita Hamm
Plaintiff claims that Defendant Anita Hamm, who is White and is Defendant
Brittany Hamm’s mother, violated his civil rights by discouraging Defendant Brittany
Hamm from making the promised exculpatory video. (Doc. No. 1, PageID 4, 9 & 11.)
Defendant Anita Hamm has custody of Defendant Brittany Hamm’s children.

(Doc. No. 1, PageID 9.) Plaintiff alleges that Defendant Anita Hamm told Defendant
Brittany Hamm “that she would not allow Brittany to see her children again if she went
public and told the truth about [Jacob] lying on [sic] Plaintiff.” (Id. (capitalization
adjusted).) Defendant Brittany Hamm told Plaintiff that her mother’s threats caused her
to be concerned about making the exculpatory video. (Id.)

Defendant Anita Hamm and Jacobs have been friends since 1985. (Doc. No. 1,
PageID 4 (capitalization adjusted).) Plaintiff alleges that Defendant Anita Hamm
conspired with other Defendants to deprive him of his civil rights because he is a Black
man. (Id. at PageID 12.)
5. Allegations against Defendant Rita Hamm

Plaintiff claims that Defendant Rita Hamm, who is White and is Defendant
Brittany Hamm’s grandmother, violated his civil rights by discouraging Defendant
Brittany Hamm from obtaining exculpatory evidence after Plaintiff was convicted, and by
fraudulently concealing the existence of Defendant Pell as an eyewitness. (Doc. No. 1,
PageID 6, 9 & 12.)

Plaintiff acknowledges that Defendant Rita Hamm cooperated with his interviewer
and testified on his behalf at his state criminal trial. (Doc. No. 1, PageID 6.) However, he
alleges that in May 2021, Defendant Rita Hamm told Defendant Brittany Hamm “not to
bother” Defendant Pell regarding the events of August 2018, because Defendant Pell did
not want to be involved. (Id. at PageID 9.) Also, on a separate occasion, Defendant Rita
Hamm allegedly asked Defendant Brittany Hamm: “What does [Plaintiff] think he’s

doing?” (Id. at PageID 10.)
Defendant Rita Hamm and Jacobs have been friends since 1985, and he has lived
with her since 2016. (Doc. No. 1, PageID 4.) Plaintiff alleges that Defendant Rita Hamm
conspired with other Defendants to deprive him of his civil rights because he is a Black
man. (Id. at PageID 12.)

6. Allegations against Defendant Eric Kovachs
Plaintiff claims that Defendant Kovachs, who is White, violated his civil rights by
discouraging Defendant Brittany Hamm from making the promised exculpatory video.
(Doc. No. 1, PageID 9 & 11.)
Defendant Kovachs was in a relationship with Defendant Brittany Hamm between

August 2019 and January 2021. (Doc. No. 1, PageID 10.) Defendant Kovachs allegedly
“gave [Defendant Brittany Hamm] an ultimatum to stop trying to help Plaintiff or she
would have to find another place to live.” (Id. (capitalization adjusted).) Plaintiff alleges
that Defendant Kovachs also threatened Defendant Britanny Hamm’s children “for
wanting to finally do what is right by going public with the truth.” (Id.) Plaintiff alleges
that Defendant Kovachs conspired with other Defendants to deprive him of his civil

rights because he is a Black man. (Id. at PageID 12.)
7. Legal claims
Plaintiff asserts that Defendants unlawfully conspired to deprive him of his civil
rights in violation of 42 U.S.C. §§ 1985 and 1986. (Doc. No. 1, PageID 12.) Section 1985
provides, in relevant part:

[I]f two or more persons conspire for the purpose of impeding, hindering,
obstructing, or defeating, in any manner, the due course of justice in any
State or Territory, with intent to deny to any citizen the equal protection of
the laws . . . . [and] if one or more persons engaged therein do, or cause to
be done, any act in furtherance of the object of such conspiracy, whereby
another is injured in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the United States, the party
so injured or deprived may have an action for the recovery of damages
occasioned by such injury or deprivation, against any one or more of the
conspirators.
42 U.S.C. § 1985(2) & (3).
Section 1986 provides, in relevant part:
Every person who, having knowledge that any of the wrongs conspired to
be done, and mentioned in section 1985 of this title, are about to be
committed, and having power to prevent or aid in preventing the
commission of the same, neglects or refuses so to do, if such wrongful act
be committed, shall be liable to the party injured, or his legal
representatives, for all damages caused by such wrongful act, which such
person by reasonable diligence could have prevented . . . .
42 U.S.C. § 1986.
Plaintiff claims that the individual Defendants conspired to deprive him of civil
rights guaranteed by Article IV, Section 2 of the United States Constitution and by the
Fifth, Sixth, Thirteenth, and Fourteenth Amendments to the United States Constitution.
(Doc. No. 1 at PageID 12-14.) He demands declaratory relief and monetary damages. He

also requests that the Court refer this matter to the U.S. Department of Justice for further
proceedings. (Doc. No. 1, PageID 15-16).
B. Legal Standard
To state a claim upon which relief can be granted, a complaint must set forth “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). The Court must construe the complaint in plaintiff’s favor, accept all

well-pleaded factual allegations as true, and determine whether the complaint contains
“sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.
2010) (holding that the “dismissal standard articulated in Iqbal and Twombly governs

dismissals for failure to state a claim under §§ 1915A(b)(1) and 1915(e)(20(B)(ii)”).
Thus, the complaint must include factual allegations that are well-pleaded and plausible.
Factual allegations are well-pleaded if they are specific and support the plaintiff’s
claims. Frazier v. Michigan, 41 F. App’x 762, 764 (6th Cir. 2002) (courts need not accept
“non-specific factual allegations and inferences”). “[A] legal conclusion couched as a

factual allegation” is not well-pleaded and need not be accepted as true. Twombly, 550
U.S. at 555; see 16630 Southfield Ltd. Partnership v. Flagstar Bank, F.S.B., 727 F.3d
502, 504 (6th Cir. 2013) (“[C]onclusory allegations … that the defendant violated the
law” do not state a claim on which relief can be granted); Frazier, 41 F. App’x at 764
(6th Cir. 2002) (courts need not accept “unwarranted legal conclusions”).

“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also 16630
Southfield Ltd. Partnership v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013)
(internal quotations and citation omitted) (“[T]he sufficiency of a complaint turns on its
factual content, requiring the plaintiff to plead enough factual matter to raise a plausible

inference of wrongdoing.”). Whether an inference is plausible “depends on a host of
considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Iqbal, 556 U.S. at 678.
“In determining whether to grant a Rule 12(b)(6) motion, the court primarily
considers the allegations in the complaint, although matters of public record, orders,

items appearing in the record of the case, and exhibits attached to the complaint, also may
be taken into account.” Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)
(internal quotations and citation omitted). In addition, “documents that a defendant
attaches to a motion to dismiss are considered part of the pleadings if they are referred to
in the plaintiff’s complaint and are central to her claim.” Weiner v. Klais & Co., 108 F.3d

86, 89 (6th Cir. 1997) (internal quotations and citation omitted).
This Court liberally construes a pro se complaint and holds it “to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). This standard may require “active interpretation in some cases [in order] to
construe a pro se petition to encompass any allegation stating federal relief.” Franklin v.
Rose, 765 F.2d 82, 85 (6th Cir. 1985). Nevertheless, a pro se complaint must adhere to

the “basic pleading essentials” and the Court should not have to guess at the nature of the
claim asserted.” Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). Instead, the
complaint must “give the defendant fair notice of what the … claim is and the grounds
upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007).
C. Plaintiff’s Complaint Against Defendant Pell Fails To State A Claim
Upon Which Relief Can Be Granted.

Defendant Pell asserts that the Complaint “fails to meet these basic pleading
requirements.” (Doc. No. 33, PageID 223.) She argues that the Complaint “merely list[s]
incidents . . . makes no allegation of conspiracy with regard to any of [her] conduct,” and
relies on an unsupported and conclusory assertion that Defendants conspired together to
violate Plaintiff’s civil rights. (Id. at PageID 224-25.) The Court agrees.
Plaintiff contends that because Defendant Pell was able to deny many of his
allegations, his Complaint put her on notice of his claims and that is all that is required.
(Doc. No. 37, PageID 258.) Plaintiff relies upon a line of Sixth Circuit cases that held that

because “[d]ismissals of complaints under the civil rights statutes are scrutinized with
special care . . . All a complaint need do [to survive a 12(b)(6) motion] is afford the
defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
(Id. at PageID 252.) See, e.g., Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). This
line of cases, in turn, relied on Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which held

that “a complaint should not be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief.” E.g., Westlake, 537 F.2d at 858 (citing Conley).

As Defendant Pell points out, Conley is no longer good law. The Supreme Court
abrogated Conley and instituted more demanding pleading standards in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Under Twombly and Iqbal, a complaint will only survive dismissal if it sets forth well-
pleaded factual allegations that state a plausible claim for relief. This standard applies to
unrepresented litigants, including Plaintiff. See Clanton v. Sam’s Club, No. 21-2824,

2022 U.S. App. LEXIS 11108, *2 (6th Cir. April 22, 2022) (applying Twombly and Iqbal
standards to pro se plaintiff’s complaint); Stewart v. Hartford Fin. Servs. Grp., No. 2:19-
cv-304, 2020 WL 264416, at *4 (S.D. Ohio Jan. 17, 2020) (Morrison, D.J.) (same).
Accordingly, the Court must determine whether Plaintiff’s Complaint contains
sufficient well-pleaded facts to assert a plausible claim for relief against Defendant Pell.

1. Plaintiff’s Section 1985 civil conspiracy claim
It is “well-settled that conspiracy claims must be pled with some degree of
specificity and that vague and conclusory allegations unsupported by material facts will
not be sufficient to state such a claim . . . .” Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th
Cir. 1987). Therefore, “pleading requirements governing civil conspiracies are relatively

strict.” Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008).
A civil conspiracy claim under Section 1985 requires “an agreement between two
or more persons to injure another by unlawful action.” Gerber v. Herskovitz, 14 F.4th
500, 511 (6th Cir. 2021) (quoting Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985)).
To prevail on a Section 1985 claim, the plaintiff must plead and prove that “(1) a single
plan existed, (2) [the defendant] shared in the general conspiratorial objective to deprive

[the plaintiff] of his constitutional (or federal statutory) rights, and (3) an overt act was
committed in furtherance of the conspiracy that caused injury to [the plaintiff].” Gerber,
14 F.4th at 511 (quoting Bazzi v. City of Dearborn, 658 F.3d 598, 602 (6th Cir. 2011)).
Plaintiff may not rely upon a “web of inferences” or indulge in “sheer speculation”
that “Defendants shared an unlawful objective.” Warner v. Bevin, No. 3:16-cv-422, 2017
WL 88991, at *7 (W.D. Ky. Jan. 9, 2017). Nor may he rely on a “repeated recitation” that

a conspiracy existed. Id. Instead, Plaintiff “must allege sufficient factual allegations to
link . . . Defendants in the conspiracy and to establish the requisite ‘meeting of the minds’
essential to the existence of the conspiracy.” Thomas v. City of Circleville, No. 2:23-cv-
1474, 2023 WL 3742988, at *4 (S.D. Ohio May 31, 2023) (Preston Deavers, M.J.).
Plaintiff’s allegations do not meet this standard. To the contrary, they fall far short

of pleading the elements of a Section 1985 conspiracy claim.
As an initial matter, Plaintiff has not alleged facts that show that any Defendant
committed an overt act in furtherance of the alleged conspiracy. The essence of Plaintiff’s
Complaint is that each Defendant failed to take actions that he believes would have been
helpful to him, or discouraged others from taking such actions. But an overt act is an

essential element of a Section 1985 claim. Gerber, 14 F.4th at 511. Absent an overt act,
Plaintiff’s Section 1985 claim fails. See Giles v. University of Toledo, 286 F. App’x 295,
306 (6th Cir. 2008) (“[B]ecause Giles failed to show that the University committed an
unlawful action, he could not prove the elements of his civil-conspiracy claim.”).
Plaintiff also has not alleged facts that demonstrate the existence of a “single plan”
or “conspiratorial objective” between Defendants to injure Plaintiff by violating his civil

rights. Plaintiff’s allegations that Defendants knew each other, and were biased against
him because he is a Black man, are insufficient to plausibly allege a single plan or
conspiratorial objective. See Ahmed v. Ohio State Highway Patrol, No. 1:17-cv-2555,
2019 WL 4419054, *12 (N.D. Ohio Aug. 28, 2019) (mere “conclusory allegation of the
existence of a racially motivated conspiracy” failed to state a civil conspiracy claim upon
which relief can be granted); Patterson v. McCormick, No. 2:13-cv-293, 2014 WL

2039966, *4 (E.D. Va. May 15, 2014) (generalized allegations of racial bias failed to
state a civil conspiracy claim upon which relief can be granted); Medrano v. Acosta, No.
2:18-cv-10108, 2021 WL 5249690, *6 (C.D. Cal. Sept. 27, 2021) (dismissing Section
1985 claim that “rest[ed] on [plaintiff’s] conclusory interpretation that every party’s
individual actions demonstrate a collective conspiracy”). The fact that some Defendants

were present during the physical confrontation between Plaintiff and Jacobs is also
insufficient to establish the existence of a conspiracy. Haile v. Vill. of Sag Harbor, 639 F.
Supp. 718, 721 (E.D.N.Y. 1986) (“The allegation that defendants were present at the
scene of plaintiff's arrest, or even that they participated in that arrest, is simply not
enough from which to infer that defendants had agreed to become part of a conspiracy”).

Accordingly, the undersigned concludes that Plaintiff has failed to state a Section
1985 civil conspiracy claim against Defendant Pell upon which relief can be granted.
2. Plaintiff’s Section 1986 civil conspiracy claim
“Section 1986 provides a cause of action for additional damages against a party

that fails to prevent a Section 1985 violation.” Gerber v. Herskovitz, 14 F.4th 500, 511
(6th Cir. 2021). If a plaintiff’s claim under Section 1985 fails, then his claim under
Section 1986 also fails. Id.
The undersigned has concluded that Plaintiff has failed to state a Section 1985
claim against Defendant Pell upon which relief can be granted. Therefore, the
undersigned must reach the same conclusion regarding Plaintiff’s Section 1986 claim.

For these reasons, the undersigned finds that Defendant Pell’s Motion to Dismiss
(Doc. No. 33) is well-taken and RECOMMENDS that it be GRANTED. To give
Plaintiff the opportunity to rectify the deficiencies identified above in an amended
pleading, the undersigned recommends that the dismissal be WITHOUT PREJUDICE.
IV. PLAINTIFF’S CLAIMS AGAINST THE REMAINING DEFENDANTS

This Court is required to dismiss a prisoner complaint that fails to state a claim
upon which relief may be granted “at any time” that such a determination is made. See 28
U.S.C. § 1915(e)(2)(B)(ii) (“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 the action . . . fails to state a claim on which relief may be granted.”).

The deficiencies in Plaintiff’s claims against Defendant Pell are equally present in
Plaintiff’s claims against the remaining Defendants. Therefore, for the same reasons set
forth above, the undersigned concludes that Plaintiff’s claims against Defendants Brittany
Hamm, Anita Hamm, Rita Hamm, Crawford and Kovachs fail to state a claim upon
which relief can be granted, and RECOMMENDS that they be DISMISSED. To give
Plaintiff the opportunity to rectify the deficiencies identified above in an amended

pleading, the undersigned recommends that the dismissal be WITHOUT PREJUDICE.
V. PLAINTIFF’S OTHER MOTIONS (DOC. NOS. 26, 27 & 41) ARE MOOT
Also pending before the Court are Plaintiff’s Motion to Substitute (Doc. No. 26),
First Motion for Default Judgment (Doc. No. 27), and Second Motion for Default
Judgment (Doc. No. 41). An order dismissing Plaintiff’s Complaint will render these
pending motions moot. Accordingly, if the District Judge adopts the above

Recommendation and dismisses Plaintiff’s Complaint with respect to all Defendants, the
undersigned Magistrate Judge RECOMMENDS that Plaintiff’s Motion to Substitute
(Doc. No. 26) and Motions for Default Judgment (Doc. Nos. 27 & 41) be DENIED AS
MOOT.
VI. CONCLUSION

In sum, for the reasons stated, the undersigned Magistrate Judge ORDERS as follows:
1. Plaintiff’s First Motion to Strike (Doc. No. 25) is DENIED.
2. Plaintiff’s Second Motion to Strike (Doc. No. 36) is DENIED.
3. The Clerk is DIRECTED to send copies of the Answers of Defendant Rita Hamm
(Doc. No. 13) and Defendant Anita Hamm (Doc. No. 14) to Plaintiff at his address

of record.
Furthermore, the undersigned Magistrate Judge RECOMMENDS as follows:
1. That Plaintiff’s Motion for Sanctions (Doc. No. 43) be DENIED;
2. That Defendant Pell’s Motion to Dismiss (Doc. No. 33) be GRANTED and
Plaintiff’s claims against Defendant Pell be DISMISSED WITHOUT

PREJUDICE;
3. That Plaintiff’s claims against Defendants Crawford, Brittany Hamm, Anita
Hamm, Rita Hamm, and Kovachs be sua sponte DISMISSED WITHOUT
PREJUDICE; and
4. That Plaintiff’s Motion to Substitute (Doc. No. 26), First Motion for Default
Judgment (Doc. No. 27), and Second Motion for Default Judgment (Doc. No. 41)

be DENIED AS MOOT.

IT IS SO ORDERED AND RECOMMENDED.
/s/ Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge

Procedure on Objections
Pursuant to Fed. R. Civ. P. 72(a), any party may serve and file specific, written
objections within FOURTEEN days after being served with this Order and Report and
Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to
SEVENTEEN days if this Order and Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), or (F). Such
objections shall specify the portions of the Order and Report and Recommendation
objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Order and Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly

arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge
otherwise directs. A party may respond to another party’s objections within FOURTEEN
days after being served with a copy thereof.
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,

949-50 (6th Cir. 1981).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10383745. Public record. Not legal advice.