Layne v. Thouroughman

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JAMES W. LAYNE, IV,

Plaintiff,

Case No. 1:23-cv-702

v.

JUDGE DOUGLAS R. COLE

DAVID THOUROUGHMAN, et al.,1 Magistrate Judge Litkovitz

Defendants.

OPINION AND ORDER

Pro se Plaintiff James W. Layne, IV, was indicted in the Scioto County

Court of Common Pleas for sexual battery. (Compl., Doc. 1, #4). After that case was

dismissed without prejudice, (id.), Layne brought this case. He alleges that

Defendants Scioto County Sheriff David Thoroughman, Captain Ron Davis, Detective

Sergeant Jodi Conkle, Scioto County Prosecutor Shane Tieman, Assistant Scioto

County Prosecutor Scott Evans, Matthew Loesch,2 the Scioto County Sheriff’s Office,

1 In the Complaint, Layne alternately spells Defendant David Thoroughman’s name as

“Thoroughman” or “Thouroughman.” (Compare Doc. 1, #1, with id. at #2). But the name is

spelled “Thoroughman,” with only one “u,” on the official Scioto County Sheriff’s website.

About Your Sheriff, Scioto Cnty. Sheriff’s Off., https://perma.cc/VP3H-XWAP. And the Court

“can take judicial notice of information posted on an official government website regarding

that entity.” Epps v. United States, No. 1:23-cv-510, 2024 WL 2176877, at *5 n.1 (S.D. Ohio

May 15, 2024); Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject

to reasonable dispute because it: (1) is generally known within the trial court’s territorial

jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy

cannot reasonably be questioned.”).

2 Although the Complaint never lists Loesch’s job title, the Scioto County Prosecutor’s website

lists him as a member of the criminal division of that entity. Meet the Team, Scioto Cnty.

Prosecutor’s Off., https://perma.cc/596T-64GR. Because this information is posted on an

official government website, the Court can take notice of it. See supra note 1.

and the Scioto County Prosecutor’s Office improperly secured the sexual battery

indictment with “zero evidence to support their claim.” (Id. at #2–4, 7).

On February 23, 2024, Defendants moved for judgment on the pleadings. (Doc.

11). Under the local rules, Layne’s opposition to that motion was due on March 15,

2024—21 days later. S.D. Ohio Civ. R. 7.2(a)(2). When Layne still had not responded

by May 7, 2024, the Court issued an Order to Show Cause (Doc. 17). That Order

directed Layne to show cause why the Court should not dismiss the case for failure

to prosecute or treat the Motion for Judgment on the Pleadings as unopposed. (Id. at

#91–92).

Layne timely responded to the Order to Show Cause, but, as further explained

below, his response said nothing about the Motion for Judgment on the Pleadings.

(Doc. 18). So the Court treats the Motion for Judgment on the Pleadings as

unopposed. And for the reasons discussed below, the Court GRANTS Defendants’

Motion for Judgment on the Pleadings (Doc. 11) and DISMISSES Layne’s Complaint

(Doc. 1) WITHOUT PREJUDICE.

BACKGROUND

Layne was indicted in the Scioto County Court of Common Pleas for sexual

battery on July 23, 2021. State v. Layne, No. 21CR000394 (Scioto Cnty. Ct. Com. Pl.),

Indictment (filed July 23, 2021).3 The case was dismissed without prejudice at the

prosecutor’s request in October 2021. Id., Agreed J. Entry (filed Oct. 28, 2021) (“The

3 “Federal courts may take judicial notice of proceedings in other courts of record.” Rodic v.

Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980) (citation omitted); accord

Dates v. HSBC, No. 1:24-cv-81, 2024 WL 860918, at *1 n.1 (S.D. Ohio Feb. 29, 2024).

prosecuting attorney, on behalf of the State of Ohio, and in open court, for good cause

shown, with leave of court, entered a dismissal without prejudice at the written

request of the victim herein.”).

One day shy of the two-year limitations period that applies to his claims, see

Waseleski v. City of Brooklyn, No. 1:23-cv-548, 2024 WL 1767279, at *9 (N.D. Ohio

Apr. 24, 2024), Layne brought this case. (Doc. 1). He alleges Defendants improperly

obtained the sexual battery indictment in the underlying criminal case. (Id. at #4

(“Detectives at the Scioto County [S]heriff’s [O]ffice working with the Scioto County

[P]rosecutor’s [O]ffice[] secured a[ ]sexual battery indictment against me with zero

evidence to support their claim … in response to my actions on [sic] not supporting

coworkers that [sic] murdered an inmate and cleaning up the scene.”)). So he sued

them all under 42 U.S.C. § 1983, for “Deprivation of Rights under color of law [in

violation of] 18 U.S.C. § 242” and “Conspiracy against rights [in violation of] 18 U.S.C.

§ 241.” (Id. at #2–3 (listing Thoroughman, Davis, Conkle, and the Sheriff’s Office as

Defendants and checking boxes noting that these claims were brought against them

are official-capacity claims); id. at #7 (listing the Prosecutor’s Office, Tieman, Evans,

and Loesch as Defendants on an additional typed page but making no mention of

whether they are sued in their individual or official capacities)). For relief, he seeks

“assist[ance] [] in reviewing and removing the indictment,” back pay, and punitive

damages. (Id. at #5).

Defendants answered the Complaint, (Doc. 9), and then moved for judgment

on the pleadings, (Doc. 11). In their motion, they press five arguments. First, they

contend that two Defendants, “[t]he Scioto County Sheriff’s Office and Scioto County

Prosecutor’s Office,” are “non sui juris.” (Doc. 11, #60). Second, they claim Layne “has

failed to state a cognizable official capacity (Monell) claim.” (Id.). Third, they note

that 18 U.S.C. §§ 241 and 242 do not provide private rights of action. (Id.). Fourth,

they say the Court lacks the authority to grant the relief Layne requests. (Id.). And

finally, they say that “[e]ven if the Court construes Plaintiff’s claims against

Defendants in their individual capacity, the Defendants are entitled to absolute

and/or qualified immunity.” (Id.). Defendants also report that they served Layne with

the motion by email. (Id. at #69). Then, three days later, on February 26, 2024, the

Clerk’s office separately mailed Layne a notice that Defendants had filed a motion for

judgment on the pleadings, and that he had 21 days to respond. (Doc. 12, #70).

Layne did not respond to the Motion for Judgment on the Pleadings. Instead,

he moved “to unseal the grand jury indictment.” (Doc. 13, #71). Defendants responded

that the grand jury indictment was never sealed and they have reason to believe that

what Layne is really seeking is the grand jury transcripts. (Doc. 15, #83 (“Based on

telephone conversations with Plaintiff, [Defendants] believe[] that what Plaintiff

really wants is the grand jury transcripts.”)). In light of this representation, the

Magistrate Judge concluded that even assuming Layne were actually seeking

transcripts, he first needed to seek the transcripts in state court before moving for

relief in federal court. (Doc. 16, #88–89). She therefore denied the Motion to Unseal

without prejudice to refiling. (Id.). Layne did not object to that order.

When Layne still had not responded to Defendants’ Motion for Judgment on

the Pleadings by May 7, 2024, the Court issued an Order to Show Cause (Doc. 17).

That Order directed Layne to show cause by May 21, 2024, as to why the Court should

not dismiss the case for failure to prosecute and/or treat the Motion for Judgment on

the Pleadings as unopposed. (Id. at #91–92). Layne timely responded—or, more

accurately, sort of responded. In a couple-sentence filing, Layne states that since

March 1, 2024, he “ha[s] no means to check the case status online” and “ha[s] received

no notifications or orders from the [C]ourt” other than the Magistrate Judge’s Order

denying the Motion to Unseal and the Court’s Order to Show Cause. (Doc. 18, #93).

But that is unsurprising given those were the only two orders the Court has entered

since that date. Beyond that, Layne “request[s] that the court not dismiss [his] case

as [he] ha[s] done nothing but try to expose the county-wide corruption and false

accusations levied against [him].” (Id.). But his response said nary a word about the

Motion for Judgment on the Pleadings. In short, it appears Layne received both the

Motion for Judgment on the Pleadings (which Defendants filed before March 1, 2024),

and the Court’s order requiring him to respond to it, but elected not to do so.

The matter is now ripe for the Court’s review.

LEGAL STANDARD

A motion for judgment on the pleadings under Federal Rule of Civil Procedure

12(c) “is appropriately granted when no material issue of fact exists and the party

making the motion is entitled to judgment as a matter of law.” Tucker v. Middleburg-

Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008) (cleaned up). To make that

determination, the Court applies the same standards applicable to resolving motions

to dismiss under Federal Rule of Civil Procedure 12(b)(6). Id.

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege “sufficient

factual matter … to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). While a “plausible” claim for relief does

not require a showing of probable liability, it requires more than “a sheer possibility

that a defendant has acted unlawfully.” Id. The complaint must allege sufficient facts

to allow the Court “to draw the reasonable inference that the defendant is liable.” Id.

In other words, a plaintiff must provide “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Keys v. Humana, Inc., 684 F.3d 605,

608 (6th Cir. 2012) (quoting Fed. R. Civ. P. 8(a)(2)).

To meet this pleading standard, a complaint must contain “either direct or

inferential allegations respecting all material elements to sustain a recovery under

some viable legal theory.” Terry v. Tyson Farms, Inc., 604 F.3d 272, 275–76 (6th Cir.

2010) (citation omitted). And “conclusory allegations or legal conclusions

masquerading as factual allegations will not suffice.” Id. at 276 (citation omitted). In

short, an action will be dismissed where “there is no law to support the claims made”

or “the facts alleged are insufficient to state a claim.” Stew Farm, Ltd. v. Nat. Res.

Conservation Serv., 967 F. Supp. 2d 1164, 1169 (S.D. Ohio 2013).

“In reviewing a motion to dismiss, [the Court] construe[s] the complaint in the

light most favorable to the plaintiff, draw[s] all reasonable inferences in its favor, and

accept[s] all well-pleaded allegations in the complaint as true.” Keene Grp., Inc. v.

City of Cincinnati, 998 F.3d 306, 310 (6th Cir. 2021). But that does not mean the

Court must take everything plaintiffs allege at face value, no matter how

unsupported. The Court may disregard “naked assertions” of fact or “formulaic

recitations of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (cleaned up).

And it has limited scope to consider materials outside the pleadings. Elec. Merch. Sys.

LLC v. Gaal, 58 F.4th 877, 883 (6th Cir. 2023) (“Generally, in considering a motion

to dismiss, the district court is confined to considering only the

pleadings … . However, the court may, in undertaking a 12(b)(6) analysis, take

judicial notice of matters of public record, orders, items appearing in the record of the

case, and exhibits attached to the complaint.” (cleaned up)).

Because Layne is proceeding pro se, the Court also notes that a pro se litigant’s

pleadings should be construed liberally and are subject to less stringent standards

than formal pleadings filed by attorneys. Haines v. Kerner, 404 U.S. 519, 520–21

(1972); Franklin v. Rose, 765 F.2d 82, 84–85 (6th Cir. 1985). But pro se litigants still

must comply with the procedural rules that govern civil cases. McNeil v. United

States, 508 U.S. 106, 113 (1993). And “[t]he liberal treatment of pro se pleadings does

not require lenient treatment of substantive law.” Johnson v. Stewart, No. 08-1521,

2010 WL 8738105, at *3 (6th Cir. May 5, 2010).

LAW AND ANALYSIS

A. The Motion for Judgment on the Pleadings is Unopposed.

To begin, the Court determines that the Motion for Judgment on the Pleadings

(Doc. 11) is unopposed. Defendants filed it on February 23, 2024, so Layne’s response

was due March 15, 2024. S.D. Ohio Civ. R. 7.2(a)(2). And he did not provide one. That

said, Layne, who is after all proceeding pro se, could perhaps be forgiven for not

knowing that local rules required a response by that date. But the docket also reflects

that on February 26, 2024, (before the March 1, 2024, date on which he claims he

stopped receiving mail from the Court, (Doc. 18, #93)), the Clerk mailed him a Notice,

which included an express warning that a failure to respond to the Motion for

Judgment on the Pleadings within 21 days could lead the Court to dismiss the case

for failure to prosecute. (Doc. 12, #70 (“You are hereby notified that a motion for

judgment on the pleadings has been filed by the Defendant(s) in this case (Doc. 11).

Your failure to file a … response … within 21 days … may warrant judgment

pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.”)). Were that not enough,

the Court also entered an Order to Show Cause on May 7, 2024, (which it also mailed

to Layne) directing him to explain why it should not treat the Motion for Judgment

on the Pleadings as unopposed, (Doc. 17, #92)—an instruction Layne ignored. And

while Layne is proceeding pro se, “there is no basis for treating a pro se litigant more

generously than a represented litigant when a pro se litigant fails to comply with an

easily understood deadline.” Akaazua v. Walker Novak Legal Grp., LLC, No. 19-2183,

2021 WL 4097500, at *1 (6th Cir. Jan. 8, 2021).

That is just the case here. Layne had ample notice that he needed to respond

to the Motion for Judgment on the Pleadings, “[t]he time for filing responses has

passed[,] and no responses have been filed.” Bocarov v. Puffenberger, No. 2:10-cv-39,

2011 WL 3476600, at *1 (S.D. Ohio Aug. 9, 2011); see S.D. Ohio Civ. R. 7.2(a)(2) (“Any

memorandum in opposition shall be filed within twenty-one days after the date of

service of the motion.”). “The Court therefore finds the motion to be unopposed.”

Bocarov, 2011 WL 3476600, at *1; see also FTC v. E.M.A. Nationwide, Inc., 767 F.3d

611, 629 (6th Cir. 2014) (“[T]he FTC’s summary judgment motion was unopposed

because Defendants failed to file a brief in opposition to the motion.”). And “failure to

respond constituted a waiver of any argument that dismissal was improper.”4

Akaazua, 2021 WL 4097500, at *1.

B. Layne Brings a Malicious Prosecution Claim Against a Governmental

Entity.

The Court could perhaps grant the Motion for Judgment on the Pleadings

based solely on Layne’s failure to respond. But the Court concludes that, especially

given Layne’s pro se status, the better route is also to conduct an independent

review—at least briefly—of the pleadings and Defendants’ arguments. Cf. Williams

v. Parikh, No. 1:23-cv-167, 2023 WL 8824845, at *11 n.17 (S.D. Ohio Dec. 21, 2023)

(analyzing an issue regarding relief not requested by a pro se plaintiff because his

“pro se [status] g[ave] the Court pause about the propriety of holding [t]his

failure … against him”). Ultimately, however, that does not change the result—

dismissal is warranted.

4 Technically, “forfeiture” may be a better description than “waiver.” A waiver refers to an

intentional relinquishment of a known right. Hamer v. Neighborhood Hous. Servs. of Chi.,

583 U.S. 17, 20 n.1 (2017). Forfeiture, on the other hand, refers to the failure to timely assert

a right. Id. Failing to respond to a motion falls into the latter category, not the former. Hill

v. Xerox Bus. Servs., LLC, 59 F.4th 457, 469 n.15 (9th Cir. 2023) (delineating the doctrines of

waiver and forfeiture by noting that “waiver is defined as a party’s intentional

relinquishment or abandonment, which does not turn on the timing of when a right is

asserted,” which is forfeiture’s focus (cleaned up)).

To start, the Court must first assess the nature of Layne’s claims. Construing

the Complaint liberally in Layne’s favor, as is appropriate for pro se pleadings, the

Court determines that the Complaint asserts a § 1983 claim alleging a Fourth

Amendment violation based on malicious prosecution. See Sykes v. Anderson, 625

F.3d 294, 308 (6th Cir. 2010). True, Layne also cites two other statutory provisions,

18 U.S.C. §§ 241 and 242, in his pleading. (Doc. 1, #3). But they don’t work, either

directly or through § 1983. As to the former, settled law holds he has no direct private

right of action under either criminal statute. Am. Postal Workers Union v. Indep.

Postal Sys. of Am., Inc., 481 F.2d 90, 93 (6th Cir. 1973) (“[C]riminal statutes can []be

enforced [only] by the proper authorities of the United States Government[,] and a

private party has no right to enforce these sanctions.” (citation omitted)); accord

Kafele v. Frank & Wooldridge Co., 108 F. App’x 307, 308–09 (6th Cir. 2004) (same);

Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (noting that 18 U.S.C. §§ 241 and 242

“do not give rise to a civil action for damages”). Nor can violations of criminal statutes

serve as the basis for a § 1983 claim. Lee v. Stewart, No. 20-5952, 2021 WL 6932349,

at *2 (6th Cir. Aug. 24, 2021) (“Likewise, § 1983 provides no remedy for violating the

listed federal criminal statutes or state laws.”); see generally Gonzaga Univ. v. Doe,

536 U.S. 273, 284–85 (2002) (holding that federal statutes are not enforceable

through § 1983 unless they create personally enforceable rights). So any claims Layne

tries to make under those statutory provisions—whether directly or via § 1983—are

nonstarters. That leaves Layne with only the § 1983 claim for malicious prosecution.

Then the Court must determine exactly who Layne is suing. Start with the

easy ones—the two named Defendants who Layne cannot sue. Defendants are correct

that neither the Sheriff’s Office nor the Prosecutor’s Office is sui juris. Carmichael v.

City of Cleveland, 571 F. App’x 426, 435 (6th Cir. 2014) (“[F]ederal courts have held

that, under Ohio law, a county sheriff’s office is not a legal entity that is capable of

being sued.”); Lenard v. City of Cleveland, No. 1:17-cv-440, 2017 WL 2832903, at *2

(N.D. Ohio June 30, 2017) (“[T]he Cuyahoga County Prosecutor’s Office[] [and]

Sheriff’s Office … are not proper Defendants. They are not sui juris, meaning they

are not independent legal entities capable of suing or being sued.”). Rather, the Scioto

County Sheriff’s Office and the Scioto County Prosecutor’s Office “are merely

subunits of [Scioto] County.” Lenard, 2017 WL 2832903, at *2. So Layne’s “§ 1983

claim[s] against [both those entities are] … really … against the County.” Polachek

v. Roberts, No. 1:22-cv-742, 2023 WL 6348388, at *2 (S.D. Ohio Sept. 28, 2023).

That same point (i.e., that the claim is really against the County) ends up being

true for the Defendants who are named individually. To see why, start from the

proposition that a plaintiff can assert a § 1983 claim against a given defendant in

that defendant’s individual capacity, official capacity, or both. The difference between

the two types of claims is that an individual-capacity claim imposes liability on the

defendant personally, while an official-capacity claim is essentially a claim against

the defendant’s employer. Williams, 2023 WL 8824845, at *9. Here, as noted above,

everywhere checkboxes were available on the form complaint, Layne checked only the

boxes signifying that he was bringing official-capacity claims. (Doc. 1, #2–3 (listing

Thoroughman, Davis, Conkle, and the Sheriff’s Office as Defendants and checking

only the boxes for official-capacity claims against each)). True, he named additional

Defendants on an additional typed page that did not include checkboxes. (Id. at #7

(listing the Prosecutor’s Office, Tieman, Evans, and Loesch)). But there is no reason

to believe he intended to sue these Defendants in any different capacity than the

Defendants listed on the page pre-printed with checkboxes. “The Court therefore

gives that portion of the Complaint its most natural meaning and concludes that

[Layne] is not suing the [Defendants] in [their] individual capacit[ies].” Estep v.

Comm’r of Soc. Sec., No. 1:22-cv-474, 2024 WL 126382, at *2 n.3 (S.D. Ohio Jan. 11,

2024). When faced with official-capacity claims, Defendants “stand in the shoes of the

entity they represent.” Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (citing

Kentucky v. Graham, 473 U.S. 159, 165 (1985)). In other words, an official-capacity

suit is “the equivalent of a suit against the governmental entity”—here, Scioto

County. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994).

Putting that all together, in ruling on the unopposed Motion for Judgment on

the Pleadings, the question the Court confronts is whether the Complaint plausibly

alleges a § 1983 claim for malicious prosecution against Scioto County.5

5 Although neither party has made the argument, as an unchartered county of Ohio, Scioto

County itself is not an entity that can be sued. Lovelo v. Clermont Cnty. Sheriff’s Off., No.

1:23-cv-114, 2023 WL 8828008, at *2 (S.D. Ohio Dec. 21, 2023) (“Unchartered counties [in

Ohio] … are not vested with a single attribute of sovereignty and, accordingly, cannot be sued

in their own name as a separate entity.” (cleaned up)); Local Government, Ohio Sec’y of State

(May 22, 2024), https://ohio.gov/government/resources/local-government-rosters (listing only

Cuyahoga and Summit Counties as chartered counties). “Instead, in cases against

unchartered counties, litigants must sue the board of county commissioners, which does have

the capacity to sue and be sued.” Lovelo, 2023 WL 8828008, at *2. And that is just as true of

§ 1983 claims as it is of any other type of claim. Lopez v. Foerster, No. 20-2258, 2022 WL

C. Layne Has Not Alleged a Cognizable § 1983 Malicious Prosecution

Claim Against a Governmental Entity.

With the preliminaries out of the way, the Court turns to the key issue, which

is whether Layne has stated a plausible claim. “A viable § 1983 claim against a

governmental entity must allege (1) a constitutional violation, which (2) was directly

caused by a municipal policy or custom.” Dillon v. Hamlin, No. 1:23-cv-103, 2024 WL

707289, at *5 (S.D. Ohio Feb. 21, 2024) (citing Hardrick v. City of Detroit, 876 F.3d

238, 243 (6th Cir. 2017)). Layne falls short on both prongs.

Start with the first. To assert a claim for malicious prosecution, Layne must

allege facts plausibly suggesting that he can meet four elements:

First, the plaintiff must show that a criminal prosecution was initiated

against the plaintiff and that the defendant made, influenced, or

participated in the decision to prosecute. Second, because a § 1983 claim

is premised on the violation of a constitutional right, the plaintiff must

show that there was a lack of probable cause for the criminal

prosecution. Third, the plaintiff must show that, as a consequence of a

legal proceeding, the plaintiff suffered a deprivation of liberty, as

understood in our Fourth Amendment jurisprudence, apart from the

initial seizure. Fourth, the criminal proceeding must have been resolved

in the plaintiff’s favor.

Sykes, 625 F.3d at 308–09 (cleaned up). The Court acknowledges he meets the fourth

element. Layne alleges that the criminal case was dismissed without prejudice, (Doc.

910575, at *6 (6th Cir. Mar. 29, 2022) (Ҥ 1983 does not change basic procedural rules

permitting only ‘juridical’ entities to sue and be sued. … We thus have held that several

different types of § 1983 defendants were not suable entities under the relevant state’s law.”).

So, in keeping with its obligation to construe pro se complaints liberally, the Court treats the

Complaint as bringing a claim against the Scioto County Board of Commissioners, which has

the capacity to be sued, rather than the County, which does not. Williams, 2023 WL 8824845,

at *3–*4 (construing a pro se complaint as raising a claim against a juridical party when the

complaint named a non-juridical entity). But that changes neither the question before the

Court—whether Layne has plausibly alleged a § 1983 claim against a governmental entity—

nor the answer to that question.

1, #4), which counts as favorable termination for malicious prosecution purposes. See

Thompson v. Clark, 596 U.S. 36, 39 (2022). And he may just make it over the line as

to the second—lack of probable cause. He says that the defendants had “zero

evidence” that he committed sexual battery. (Doc. 1, #4). Rather, Layne (who is a

corrections officer) alleges that Defendants were pursuing this action as retribution

for his not “supporting coworkers that [sic] murdered an inmate.” (Id.). Taken

together, that may be enough. The first calls into question (albeit in a conclusory

fashion) whether any evidence (and thus probable cause) existed. And the latter may

make it plausible to believe that Defendants would proceed against him even without

such evidence. So, for present purposes, the Court concludes Layne has sufficiently

alleged that element as well.

But he falls short on the two remaining elements. As to the first element, he

fails to allege what role any Defendant played in “mak[ing], influenc[ing], or

participat[ing] in the decision to prosecute.” Sykes, 625 F.3d at 308 (cleaned up). His

Complaint alleges only in wholly vague and conclusory terms that all actors were

involved. (Doc. 1, #4 (“Using their capacity in law enforcement, the [sic] Jodi Conkel,

Ron Davis, and David Thoroughman, while working with the Scioto [C]ounty

Prosecutor’s [O]ffice[,] including Shane Tieman, Scott Evans, and Matthew Loesch,

misconstrued laws to a grand jury to secure an indictment against me and arrested

me with zero evidence that I had broken a law.”)). But such a threadbare assertion

does not cut it. Iqbal, 556 U.S. at 678. And as to the third, he fails to allege in his

Complaint that he suffered any deprivation of liberty in connection with the charges

apart from the initial seizure. All four elements are necessary. Dillon, 2024 WL

707289, at *9 (“[A] [malicious prosecution] claim requires that all four elements are

met, so if a plaintiff fails to demonstrate even one element, then the claim must fail.”

(cleaned up)). Not satisfying either the first or third elements of a malicious

prosecution claim therefore dooms his Complaint (at least as currently drafted) for

failure to allege a constitutional violation.

Layne also struggles on the policy or custom front. Recall that he is not suing

any Defendant in their individual capacity. So even if a Defendant committed a

constitutional violation, there must also be a basis for attributing that violation to

the employer (Scioto County)—in other words, a basis for concluding that the

violation resulted from a Scioto County “policy or custom.” Id. at *5. As to that issue,

“[t]here are at least four avenues a plaintiff may take to prove the existence of a

municipality’s illegal policy or custom.” Thomas v. City of Chattanooga, 398 F.3d 426,

429 (6th Cir. 2005). A plaintiff may prove that the entity has an actionable,

unconstitutional “policy” or “custom” in place by demonstrating: “(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, 398 F.3d at 429).

Start with the first avenue: the existence of an illegal official policy or custom.

“To survive a motion to dismiss based on that theory, [Layne] needs to allege facts

that point towards a policy or custom that forms the basis of [his] claim.” Dillon, 2024

WL 707289, at *5 (cleaned up). Here, Layne would need plausible allegations that

Scioto County has a policy or custom of maliciously prosecuting people. But “the

Complaint itself is devoid of any factual enhancement that would allow the Court to

[draw a] reasonable infer[ence about] the existence of an alleged policy that caused

any particular constitutional violation.” Austin v. City of Cincinnati, No. 1:15-cv-608,

2016 WL 1718264, at *2 (S.D. Ohio Apr. 28, 2016). In fact, the Complaint does not

even contain the words “policy” or “custom.” Nor does Layne point to any specific

actions by persons who allegedly had final policymaking authority regarding the

decision to prosecute him. City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)

(actions undertaken by final decisionmakers may suffice to establish policy or custom

for Monell purposes (citing Pembaur v. Cincinnati, 475 U.S. 469 (1986))). In sum, he

fails to set forth any facts that plausibly allege the existence of an official policy.

True, he names the Scioto County Prosecutor as one Defendant. (Doc. 1, #7).

And it is perhaps plausible to assume that the County Prosecutor is the final

decisionmaker for prosecution decisions. So the malicious prosecution claim against

that Defendant may be on a different footing from the malicious prosecution claims

against the other Defendants. See Praprotnik, 485 U.S. at 123. But even so, the claim

still falls short. Layne provides no non-conclusory allegations (indeed no allegations

at all) that the County Prosecutor himself knew that the criminal charges were

meritless when he filed or pursued them. The closest Layne comes is when he says

that “the prosecution admitted there was zero evidence to support any charges but

pursued the case at the request of the [S]heriff’s [O]ffice.” (Doc. 1, #4). But exactly

who does he mean by “the prosecution,” and who at “the sheriff’s office” requested the

case to go forward? If he fills in those blanks, it is perhaps possible this case could

proceed as an official-capacity claim against the County Prosecutor. But as currently

pleaded, the barebones complaint does not work.

The same shortcoming is present as to the second avenue. “The Sixth Circuit

recognizes two methods for finding ratification: (1) when an individual with

policymaking authority issues a final decision affirming a subordinate’s

decision[,] … thereby adopting it as municipal policy, and (2) when a policymaker

fails to [initiate a] meaningful[] investigat[ion into] the acts of a subordinate.” Meyers

v. Cincinnati Bd. of Educ., 343 F. Supp. 3d 714, 729 (S.D. Ohio 2018). But Layne has

made no factual allegations to support a finding of ratification under either approach.

All he alleges is that he was prosecuted, that the prosecution was completely

meritless, and that the case was dismissed without prejudice. (Doc. 1, #4). That is not

enough. Perhaps most importantly, he does not allege what role any of the named

Defendants played in any of these events. Again, if Layne could provide facts showing

that the County Prosecutor affirmed a decision by a subordinate to pursue a claim

both knew was meritless, things may be different. But the current iteration of the

Complaint contains no such allegations.

Layne likewise falls short of alleging a viable inadequate training or

supervision theory. “A failure-to-train claim ... requires a showing of prior instances

of unconstitutional conduct demonstrating that the municipality had ignored a

history of abuse and was clearly on notice that the training in this particular area

was deficient and likely to cause injury.” Burgess, 735 F.3d at 478 (cleaned up).

“[Layne’s] problem is that he once again fails to allege facts giving rise to a reasonable

inference that he could make this showing.” Stager v. Hanshaw, No. 1:23-cv-120, 2024

WL 1556708, at *5 (S.D. Ohio Apr. 10, 2024). So that avenue does not help him.

That leaves the final avenue laid out in Thomas—the “inaction theory.” Under

this theory, a plaintiff can make out a valid claim by pointing to a policy of tolerating

federal rights violations that “is unwritten but nevertheless entrenched.” Thomas,

398 F.3d at 429. To prevail on that theory, a plaintiff must show four elements: (1) “a

clear and persistent pattern” of rights violations; (2) “notice or constructive notice on

the part of the defendant”; (3) “the defendant’s tacit approval of the unconstitutional

conduct, such that the[] deliberate indifference in [its] failure to act can be said to

amount to an official policy of inaction”; and (4) a causal link between the custom and

the constitutional deprivation. Id. (cleaned up). “Although the third and fourth

elements differ from a failure-to-train claim[,] … Plaintiffs bringing either type of

claim must show (1) a history of rights violations such that (2) the defendants were

on notice.” Stager, 2024 WL 1556708, at *6. Layne therefore “falls short [on both

avenues] for the same reasons”: that “he has plausibly alleged neither a clear pattern

of rights violations nor notice.” Id.

In short, “[t]he Court is under no duty to conjure a policy or custom that would

support Plaintiff’s suit. Rather, Plaintiff bears the burden of explaining with

minimal, but sufficient, facts exactly what policy or custom caused his injury.”

Lovelace v. City of Memphis Police Dep’t, No. 08-2776, 2010 WL 711190, at *3 (W.D.

Tenn. Feb. 24, 2010). So the lack of any facts that could satisfy the requirements of

any of the four avenues Thomas described dooms the Complaint for failure to meet

the policy or custom prong.

All that said, even though Layne has not pleaded enough facts, either as to the

underlying constitutional violation or as to the policy or custom prong, to withstand

a motion for judgment on the pleadings, it is not at all clear that he could not do so if

he pleaded all the facts at his disposal in an amended complaint. Brown v. Matauszak,

415 F. App’x 608, 614 (6th Cir. 2011) “Generally, if it is at all possible that the party

against whom the dismissal is directed can correct the defect in the pleading or state

claim for relief, the court should dismiss with leave to amend.” (cleaned up)). So the

Court dismisses the Complaint without prejudice—a result that is particularly

appropriate because Layne is an “untutored pro se litigant.” Jd. at 614-15 (cleaned

up).

CONCLUSION

For the reasons discussed above, the Court GRANTS Defendants’ Motion for

Judgment on the Pleadings (Doc. 11) and DISMISSES Layne’s Complaint (Doc. 1)

WITHOUT PREJUDICE. The Court therefore DIRECTS the Clerk to enter

judgment and to TERMINATE this case on its docket.

SO ORDERED.

June 20, 2024 -

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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