# Layne v. Thouroughman

> District Court, S.D. Ohio · June 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10384823

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 20, 2024
- **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/10384823

## How later opinions describe it (automated extraction)

- holding that federal statutes are not enforceable through § 1983 unless they create personally enforceable rights

## Opinion text

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
19

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10384823. Public record. Not legal advice.