Kanu v. City Of Cincinnati

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRYAN KANU, Case No. 1:19-cv-156

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

CITY OF CINCINNATI, et al., REPORT AND

Defendants. RECOMMENDATION

I. INTRODUCTION

Pro se plaintiff Bryan Kanu brings this action alleging violations of his civil rights and

Ohio law against the City of Cincinnati (Cincinnati), Sgt. Todd Ploehs, City prosecutor Jonathan

Rengering (collectively, the City defendants); Hamilton County, Ohio (Hamilton County);

County prosecutors Joseph Deters, Elizabeth Volmer Polston, Zachary Garrison, and Joseph

Prem; Sheriff’s Deputy Nicholas Hrnyak (collectively, the County defendants); and Michael

Bachman, a former magistrate on the Hamilton County Court of Common Pleas.

On October 29, 2019, this Court issued an Order and Report and Recommendation that,

among other things, recommended the Court abstain from exercising its jurisdiction over all

claims against the City defendants1 related to Case No. B1800225 in the Hamilton County Court

of Common Pleas (the Felony case) and Case No. 17-CRB-16366 in the Hamilton County

Municipal Court (the City misdemeanor case) and that plaintiff’s claims related to these cases be

stayed pending the conclusion of the state court criminal proceedings. (Doc. 52 at PAGEID

1077). The Court also recommended abstaining from exercising jurisdiction over all claims

1 The complaint considered at the time of that Order and Report and Recommendation asserted claims against the

City of Cincinnati; the Cincinnati Police Department, District 4; the Office of the City of Cincinnati Prosecutor; the

Hamilton County Court of Common Pleas; and the Office of the Hamilton County Prosecutor. (Doc. 4). The

reference to “City defendants” therein referred to the first three defendants and the reference therein to “County

defendants” referred to the latter two defendants.

against the County defendants related to the Felony case and that plaintiff’s claims related

thereto be stayed pending the conclusion of state court criminal proceedings. (Id. at PAGEID

1077-78). The District Judge adopted the undersigned’s recommendations. (Doc. 72).

The City defendants thereafter moved to dissolve the stay (Doc. 74) upon plaintiff’s

conviction becoming final in the City misdemeanor case and the dismissal of the Felony case,

and plaintiff moved to amend his complaint (Doc. 75). The Court granted both motions.2 (Doc.

78).

This matter is before the Court on the City defendants’ motion to dismiss (Doc. 97),

defendant Bachman’s motion for judgment on the pleadings (Doc. 99), and the County

defendants’ motion to dismiss (Doc. 102). Plaintiff has filed responses to these motions (Docs.

105, 106) and defendants have replied (Docs. 108-10). For the reasons that follow, the Court

recommends that defendants’ motions be granted.

II. THE AMENDED COMPLAINT (DOC. 84)

The allegations in plaintiff’s amended complaint flow from four state court proceedings

against plaintiff:

1. June 15, 2017: defendant Ploehs initiated misdemeanor criminal charges in the City

misdemeanor case for telecommunications harassment of S.M. (Doc. 84 at PAGEID

1432). Plaintiff was convicted and the Supreme Court of Ohio dismissed his appeal.

(See Doc. 74-1) (entry of dismissal).

2 The Court conditionally granted plaintiff’s motion, provided that his amended complaint met several criteria.

Those criteria included that the amended complaint (1) comply with Rule 8(a) of the Federal Rules of Civil

Procedure, (2) comply with S.D. Ohio Civ. R. 5.1, and (3) be double-spaced. (Doc. 78 at PAGEID 1404-05).

Defendant Bachman raises deficiencies on these technical grounds as a basis to dismiss the amended complaint.

(See Doc. 99 at PAGEID 1534-35). Notwithstanding these persistent errors, the Court elects to consider plaintiff’s

claims on their merits, which have been fully briefed. See Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)

(“[T]his court prefers that claims be adjudicated on their merits” absent “a clear pattern of delay.”) (citation

omitted).

2. June 29, 2017: defendant Bachman issued an ex parte emergency protection order (EPO)

on the petition of S.M. for a civil stalking protection order. (Id.). A final protection order

issued November 20, 2019. (Doc. 108-1).3

3. July 1, 2017: the Loveland, Ohio police department filed misdemeanor criminal charges

in case number C/17/CRB/17911 for violating the EPO (the Loveland misdemeanor

case). (Doc. 84 at 1433). This case has since been dismissed. (See id. at PAGEID

1434).

4. January 2018: defendant Ploehs initiated a felony criminal charge in the Felony case for

menacing by stalking. (Id. at PAGEID 1434). This case has since been dismissed. (See

id.). (See also Doc. 74-2) (dismissal of the indictment).

Summarized briefly, plaintiff alleges that defendant Bachman unlawfully issued the EPO

and that the resulting Loveland misdemeanor and Felony cases stemming from plaintiff’s alleged

violations of that EPO were therefore illegal. Plaintiff also alleges a broad conspiracy, beginning

among defendants Bachman, Ploehs, Hamilton County, and Hrnyak, and later spreading to the

remaining defendants, to unlawfully convict plaintiff and withhold exculpatory evidence in these

proceedings. In particular, he alleges that defendants conspired to cover up the fact that the EPO

had not been properly served on plaintiff prior to the initiation of the Loveland misdemeanor

case.

Against this background, plaintiff asserts the following claims against the following

defendants, as best the Court can decipher:

• violations of civil rights and related conspiracy claims4 against all defendants;

municipality liability against Cincinnati and Hamilton County (Counts I, II, III)

• intentional infliction of emotional distress against all defendants (Count IV)

• Fourth Amendment violations related to false imprisonment and continued unlawful

detention against all defendants (Count V)

3 Plaintiff’s response (Doc. 105) attaches an alleged objection to this order. (Doc. 105-1). The alleged filing is not

dated or file-stamped and there is no plausible reason otherwise to doubt the finality of this protection order.

4 Counts I-III of plaintiff’s amended complaint identify only a “deprivation of rights conspiracy” (Doc. 84 at

PAGEID 1443), which appears to invoke 42 U.S.C. § 1985(3). Throughout the amended complaint, however,

plaintiff also appears to invoke the obstruction of justice conspiracy claim contemplated by 42 U.S.C. § 1985(2).

(See Doc. 84 at PAGEID 1436-42).

• violations of the Ohio Corrupt Activities Act (OCAA), Ohio Rev. Code §§ 2923.31-

2923.36,5 Ohio’s corollary to the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. §§ 1961 et seq., against all defendants (Counts VI and VII)

• negligence in preventing conspiracy under 42 U.S.C. § 1986 against defendant Deters

(Count VIII)

• abuse of process against all defendants (Count IX)

• negligence against all defendants (Counts X, XI)

• fraud and conspiracy to commit fraud against all defendants except Cincinnati (Counts

XII and XIII)

• violations of Ohio’s Constitution, Art. I, §§ 10(A)(4) and 14, against all defendants

(Count XIV).

(Id. at PAGEID 1443-50). Plaintiff seeks equitable and monetary relief. (Id. at PAGEID 1450).

III. RULE 12(b)(6) AND RULE 12(c) STANDARD

In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual

allegations as true and make reasonable inferences in favor of the non-moving party. Keys v.

Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575

(6th Cir. 2005)). Only “a short and plain statement of the claim showing that the pleader is

entitled to relief” is required. Id. (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he statement need only

give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id.

(quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007)). Although the plaintiff need not plead specific facts, the “[f]actual

allegations must be enough to raise a right to relief above the speculative level” and to “state a

claim to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 555, 570). A

5 The amended complaint cites Ohio Rev. Code § 2923.32(A)(1) in particular, which reads: “No person employed

by, or associated with, any enterprise shall conduct or participate in, directly or indirectly, the affairs of the

enterprise through a pattern of corrupt activity or the collection of an unlawful debt.”

plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)). Courts apply the same analysis to motions for judgment on the pleadings under

Rule 12(c) as they apply to motions to dismiss under Fed. R. Civ. P. 12(b)(6). See Warrior

Sports, Inc. v. Nat’l Collegiate Athletic Ass’n, 623 F.3d 281, 284 (6th Cir. 2010) (citing EEOC v.

J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001)).

It is well-settled that a document filed pro se is “to be liberally construed” and that a pro

se complaint, “however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers[.]” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S.

97, 106 (1976)). The Sixth Circuit has also recognized, however, that this liberal construction

does not come at the expense of “abrogat[ing] basic pleading essentials in pro se suits.” Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989) (citations omitted).

IV. DEFENDANTS’ PENDING MOTIONS

A. The County defendants’ motion to dismiss (Doc. 102)

The County defendants argue that County prosecutors are absolutely immune from

prosecution for plaintiff’s claims arising under 42 U.S.C. §§ 1983, 1985, and 1986 because

plaintiff’s allegations concern actions taken in connection with the judicial phase of plaintiff’s

prosecutions. They argue that the County prosecutors are also entitled to qualified immunity

because plaintiff has not alleged factually supported constitutional violations. They also argue

that defendant Hrnyak (a Sheriff’s Deputy) cannot be liable for any constitutional violations

related to the improper service date of the EPO because plaintiff has not alleged blameworthy

conduct by him. Finally, they argue that any constitutional claim related to an alleged failure by

defendant Hrnyak to disclose exculpatory evidence is foreclosed by the fact that neither the

Loveland misdemeanor nor the Felony case ever proceeded to trial.

As a separate basis for dismissing plaintiff’s conspiracy-based claims (Counts VIII6 and

XIII), the County defendants argue that plaintiff has not demonstrated class-based invidiously

discriminatory animus, which is a necessary element of 42 U.S.C. § 1985(3). As a more general

matter, they argue that plaintiff’s allegations regarding an agreement or meeting of the minds

among defendants are not sufficiently specific to state a conspiracy claim. They further argue

that the lack of an underlying 42 U.S.C. § 1985 claim is fatal to a 42 U.S.C. § 1986 claim.

The individual County defendants argue that they are entitled to immunity under state

law pursuant to Ohio’s Political Subdivision Tort Liability Act (PSTLA), Ohio Rev. Code §

2744 et seq., for the claims alleged in Counts IV, VI-VII, X-XIV. In particular, they argue that

the County prosecutors are shielded from liability under Ohio Rev. Code § 2744.03(A)(7) and

that defendant Hrnyak is shielded from liability under Ohio Rev. Code § 2744.03(A)(6).

As a separate basis for dismissing the fraud claims in Counts XII and XIII, the County

defendants argue that plaintiff has neither identified the particular representation made with the

requisite specificity nor identified resulting injury—both elements of a fraud claim under Ohio

law. As a separate basis for dismissing the abuse of process claim in Count IX, the County

defendants argue that plaintiff has failed to allege a fundamental element of this claim: an

ulterior motive driving their prosecutions of plaintiff. As a separate basis for dismissing the

OCAA claims in Counts VI and VII, the County defendants cite several subsections of the U.S.

Code relating to the obstruction of justice (see 18 U.C. §§ 1512(b), (d))7 and argue that plaintiff

6 Although the County defendants cite this Count, the Court reads Count VIII to be a negligence in preventing a

conspiracy claim and Count II to present the civil rights conspiracy claim.

7 While plaintiff does not cite this statute, the Court believes the County defendants to refer to this statute based on

certain allegations of the amended complaint concerning the obstruction of justice. See supra n.3.

has failed to allege a “pattern” of racketeering activity, how that pattern is related to a criminal

enterprise, and the existence of a threat of continuing racketeering activity.

Finally, the County defendants argue that Hamilton County is not sui juris and that the

amended complaint should therefore be dismissed as to Hamilton County as a matter of law.

B. The City defendants’ motion to dismiss (Doc. 97)

The City defendants argue that City prosecutor Rengering is absolutely immune from

liability as to all claims8 because plaintiff’s allegations concern his actions taken in connection

with the judicial phase of the criminal process. They argue that defendant Ploehs (a police

sergeant) is entitled to qualified immunity on plaintiff’s civil rights claims (Counts I, II, III, V,

and VIII) because plaintiff has not identified any constitutional violations or blameworthy

conduct by him.

The City defendants argue that plaintiff’s civil rights conspiracy claim (Counts II) fails

for lack of a class-based invidiously discriminatory animus, which is necessary under 42 U.S.C.

§ 1985(3). As a consequence, they argue that the related failure to prevent such a conspiracy

claim also fails (Count VIII). They argue that plaintiff’s municipality liability claim (Count III)

must be dismissed because he has shown neither that Cincinnati acted with deliberate

indifference to plaintiff’s constitutional rights nor that an official policy of, or a failure to

adequately supervise or train employees by, Cincinnati resulted in a violation of plaintiff’s

constitutional rights.

The City defendants argue that the PSTLA shields Cincinnati from liability for plaintiff’s

tort claims because plaintiff’s allegations concern the performance of governmental functions

and no exceptions to that immunity apply. They argue that the individual City defendants are

8 In their reply, the City defendants acknowledge defendant Rengering’s legal advice to defendant Ploehs is not

protected by absolute immunity. See infra p. 12-13.

immune under Ohio Rev. Code § 2744.03(A)(6) and that plaintiff does not adequately allege the

only potentially relevant exception to that immunity, Ohio Rev. Code § 2744.03(A)(6)(b) (where

actions were taken “with malicious purpose, in bad faith, or in a wanton or reckless manner”).

As a separate basis to dismiss the fraud claims (Counts XII and XIII), the City defendants

argue that plaintiff has failed to identify any particular representation undergirding the fraud

claims and cannot demonstrate injury. As a separate basis to dismiss the abuse of process claim,

the City defendants argue that plaintiff has failed to allege an ulterior motive driving their

prosecution of plaintiff.

As a separate basis to dismiss the OCAA claims, the City defendants analogize to the

federal RICO statute and argue that OCAA claims must be pled with a particularity missing from

the amended complaint. As to Cincinnati in particular, they argue that municipalities are

incapable of forming the requisite intent to support liability under the OCAA. As to defendant

Ploehs, they argue that plaintiff has not alleged conduct by him that violates the criminal statutes

cited and that, in any event, the alleged conduct is not tied to an ongoing criminal enterprise. As

to defendant Rengering, they argue that he is shielded from liability by the doctrine of absolute

immunity and that, regardless, his alleged conduct does not violate the criminal statutes cited.

C. Defendant Bachman’s motion for judgment on the pleadings (Doc. 99)9

9 In his opposition, plaintiff argues that defendant Bachman’s motion is premature under Rule 12(c) of the Federal

Rules of Civil Procedure. Defendants have not answered plaintiff’s most recently amended complaint, though an

answer was filed in the case (Doc. 23) prior to the myriad of attempts by plaintiff to amend and/or supplement his

complaint. (See Docs. 9, 16, 19, 28-30, 36-39, 41-42, 51, 75). Given the protracted pleading stage in this case and

lack of evident prejudice to plaintiff, the Court recommends construing defendant Bachman’s Rule 12(c) motion as a

Rule 12(b)(6) motion. See Horen v. Bd. of Educ. of Toledo City Sch. Dist., 594 F. Supp. 2d 833, 840-41 (N.D. Ohio

2009) (and cases cited therein) (construing a premature Rule 12(c) motion as a motion to dismiss under Rule

12(b)(6)). See also Newton v. Miller, No. 3:07-cv-449, 2009 WL 3241723, at *3 (E.D. Tenn. Sept. 30, 2009)

(noting that the plaintiff suffers no prejudice if a Rule 12(c) motion is construed as a Rule 12(b)(6) because the

motions are evaluated under the same standard of review). The out-of-circuit authorities cited by plaintiff to support

his position otherwise, which do not discuss or exercise such discretion, are not persuasive. (See Doc. 106 at

PAGEID 1594-95).

Defendant Bachman argues that he is entitled to absolute judicial immunity because all of

plaintiff’s claims against him concern (1) actions taken in his judicial capacity and (2) matters

over which he had jurisdiction. He also argues that he is entitled to qualified immunity because

plaintiff has failed to adequately allege the constitutional rights violated. He also argues that he

enjoys immunity under the PSTLA under both Ohio Rev. Code §§ 2744.03(A)(6) and (7) and

that no exception applies.

As a separate basis to dismiss plaintiff’s constitutional and OCAA conspiracy claims,

defendant Bachman argues that plaintiff has not demonstrated class-based invidiously

discriminatory animus, which is necessary under 42 U.S.C. § 1985(3), and has not made more

than conclusory allegations to support an “enterprise” or “meeting of the minds” for purposes of

either a civil rights or OCAA conspiracy.

V. ANALYSIS

A. Absolute immunity

The County prosecutors and defendant Rengering argue that they are entitled to absolute

prosecutorial immunity. “Prosecutors are entitled to absolute immunity for conduct ‘intimately

associated with the judicial phase of the criminal process.’” Manetta v. Macomb Cnty.

Enforcement Team, 141 F.3d 270, 274 (6th Cir. 1998) (quoting Imbler v. Pachtman, 424 U.S.

409, 430 (1976)). This includes a county prosecutor’s initiation of a prosecution and

presentation of the State’s case at trial. Imbler, 424 U.S. at 431. See also Ireland v. Tunis, 113

F.3d 1435, 1446 (6th Cir. 1997) (deciding to file a criminal complaint and seeking issuance of an

arrest warrant are protected by absolute immunity). A prosecutor’s initiation and presentation of

a case to a grand jury falls within the traditional functions of the prosecutor and is shielded by

absolute immunity. Grant v. Hollenbach, 870 F.2d 1135, 1139 (6th Cir. 1989). Courts have

consistently recognized that even the knowing presentation of false testimony to a grand jury or a

trial jury are actions protected by absolute immunity. See Spurlock v. Thompson, 330 F.3d 791,

797-98 (6th Cir. 2004) (citing Imbler, 424 U.S. at 413, 430 and Buckley v. Fitzsimmons, 509

U.S. 259, 267 n.3 (1993)). Such “absolute prosecutorial immunity is not defeated by a showing

that a prosecutor acted wrongfully or even maliciously.” Lomaz v. Hennosy, 151 F.3d 493, 498

n.7 (6th Cir. 1998) (citing Grant, 870 F.2d at 1138).

1. The County defendant prosecutors

Plaintiff argues that the County prosecutors are not absolutely immune from his 42

U.S.C. §§ 1983, 1985, and 1986 claims because there was “no probable cause to suspect plaintiff

of a crime.” (Doc. 105 at PAGEID 1567). In particular, he argues that the County prosecutors

manufactured or fabricated evidence to generate probable cause. (See id. at PAGEID 1568). He

also argues that their actions were taken not in the judicial phase of the criminal process but

instead while gathering evidence to initiate the Felony case (see id.) (referring to Doc. 84 at

PAGEID 1441, ¶ 53) and after the prosecution had concluded (see id.) (referring to Doc. 84 at

PAGEID 1440, ¶ 47).

First, while plaintiff invokes the concept of investigatory functions in his response and

complaint (see, e.g., Doc. 105 at PAGEID 1568), his allegations do not describe actions by the

County prosecutors that are unrelated to the initiation of prosecution or judicial proceedings. See

Imbler, 424 U.S. at 431. The Supreme Court has acknowledged that:

acts undertaken by a prosecutor in preparing for the initiation of judicial

proceedings or for trial, and which occur in the course of his role as an advocate

for the State, are entitled to the protections of absolute immunity. Those acts

must include the professional evaluation of the evidence assembled by the police

and appropriate preparation for its presentation at trial or before a grand jury after

a decision to seek an indictment has been made.

Buckley, 509 U.S. at 273. See also Ireland, 113 F.3d at 1447 (“Absolute prosecutorial immunity

will likewise attach to administrative or investigative acts necessary for a prosecutor to initiate or

maintain the criminal prosecution.”) (footnote omitted). Plaintiff specifically points to his

allegation that defendant Polston “participate[d] in and further[ed]” defendants Rengering and

Ploehs investigation related to the Felony case and “started gathering the evidence they had

collected.” (Doc. 84 at PAGEID 1441, ¶ 53). He further alleges that “[t]he evidence [defendant

Polston] gathered was unknown to the Grand Jury at the time they decided to indict [plaintiff]”

and that defendant Polston “unsuccessfully attempted to use her newly gathered evidence to

amend the indictment. . . .” (Id.). This allegation suggests that her “investigation” took place

after the decision to seek an indictment was made and is therefore protected by absolute

immunity. Buckley, 509 U.S. at 273.

Second, plaintiff cites Milstein v. Cooley, 257 F.3d 1004 (9th Cir. 2001), for the

proposition that the fabrication of evidence destroys absolute immunity. As an initial matter,

plaintiff does not actually allege that the County prosecutors manufactured or fabricated

evidence. The allegations related to the unlawful EPO and service thereof, which the Court

understands to constitute the fabrication or manufacture of evidence under plaintiff’s theory of

the case, are tied to defendants Bachman and Hrnyak. (See Doc. 84 at PAGEID 1437, ¶¶ 33,

35). Moreover, Milstein held that immunity is destroyed only when such fabrication of evidence

occurs before a prosecution begins, e.g., prior to the determination of probable cause. 257 F.3d

at 1011. Plaintiff makes no plausible allegation that the County prosecutors were involved in

plaintiffs’ prosecutions at such a preliminary stage.

Finally, plaintiff cites the following allegation as occurring after his prosecutions:

Between September 20, 2018, and October 4, 2018, both dates being approximate

and inclusive, defendant PREM deceptively prevented the plaintiff from obtaining

the dismissal of [the City misdemeanor case] on the grounds of defendant

RENGERING’s prosecutorial misconduct. Because defendant PREM

communicated false information to [plaintiff] on September 20, 2018, with regard

to how long he had known about the exculpatory Writs, [plaintiff] is still not able

to definitively report to federal law enforcement that defendant RENGERING lied

in open court to defraud [plaintiff] on October 4, 2018 ([the City misdemeanor

case]).

(Doc. 84 at PAGEID 1440, ¶ 47) (footnote omitted). First, the Court is not entirely sure of

which discrete action by defendant Prem plaintiff believes is unlawful by this vague description.

In addition, plaintiff elsewhere admits that the Felony case was not dismissed until January of

2020 (see id. at PAGEID 1434). Accordingly, plaintiff does not allege that the County defendant

prosecutors’ actions took place after their prosecutorial duties had ended.

For the foregoing reasons, the County defendant prosecutors are entitled to prosecutorial

immunity on plaintiff’s 42 U.S.C. §§ 1983, 1985, and 1986 claims.

2. Defendant Rengering

Plaintiff appears to concede that the only allegation regarding defendant Rengering that

might fall outside of his absolute immunity bar (i.e., outside the scope of the judicial phase of the

criminal process) is his legal advice to defendant Ploehs that there was probable cause that

plaintiff had violated the EPO. (See Doc. 105 at PAGEID 1565). See Burns v. Reed, 500 U.S.

478, 496 (1991) (absolute immunity does not extend to a prosecutor offering legal advice to the

police). In his amended complaint, plaintiff alleges that defendant Rengering advised defendant

Ploehs “that there was probable cause to suspect that [plaintiff] had engaged in conduct

constituting a violation of [Ohio Rev. Code §] 2903.211” and that, based on this advice,

defendant Ploehs initiated the Felony case. (Doc. 84 at PAGEID 1440, ¶ 49). Plaintiff argues

that “defendant Rengering has failed to show how opening a new investigation was necessary

preparation for the judicial proceedings in [the City misdemeanor case].” (Doc. 105 at PAGEID

1566). Defendant Rengering concedes that this allegation falls beyond the scope of absolute

immunity. (See Doc. 108 at PAGEID 1622). To the extent that the remaining specific and

nonconclusory allegation regarding defendant Rengering concerns his prosecutorial functions

during the judicial phases of the City misdemeanor and Felony cases, however, he is absolutely

immune from liability related to these actions. (See Doc. 84 at PAGEID 1439, ¶ 45) (referencing

defendant’s advocacy on Hamilton County’s behalf in a Court proceeding in the Loveland

misdemeanor case).

3. Defendant Bachman

Defendant Bachman argues that he is entitled to absolute judicial immunity. Judges are

largely immune from liability for acts they commit while functioning within their judicial

capacity. See Norfleet v. Renner, 924 F.3d 317, 319 (6th Cir. 2019) (citing Mireles v. Waco, 502

U.S. 9, 9 (1991)). A plaintiff can overcome a claim of judicial immunity only where: 1) the

judge’s actions were clearly non-judicial in nature and therefore outside the scope of the judge’s

judicial capacity; or 2) the judge’s actions were taken in the absence of all jurisdiction. Mireles,

502 U.S. at 12 (citations omitted). The factors that are relevant to whether an act is judicial in

nature are: 1) “the nature of the act itself, i.e., whether it is a function normally performed by a

judge”; and 2) “whether [the parties] dealt with the judge in his judicial capacity.” Id. (quoting

Stump v. Sparkman, 435 U.S. 349, 362 (1978)). Judges retain immunity if they exceed their

jurisdiction, such as convicting a defendant of a nonexistent crime, if they act in error, or if they

act maliciously; judges loses immunity if they act without jurisdiction, such as a probate judge

trying a criminal case. Stump, 435 U.S. at 357 n.7 (citing Bradley v. Fisher, 80 U.S. 335, 352

(1871)).

Plaintiff argues that King v. Love, 766 F.2d 962 (6th Cir. 1985) supports his position that

defendant Bachman acted non-judicially when he allegedly misled the Loveland police

department and Hamilton County Sheriff’s department to believe that plaintiff had been served

on June 29, 2017, with a lawful EPO. (See Doc. 106 at PAGEID 1595-96). King is

distinguishable, however, as the judge therein had extra-judicial contact with a police officer,

sought to have an individual not named in a warrant arrested well after the warrant initially

issued, and did so to intimidate a witness that was to testify in his upcoming judicial conduct

hearing. King, 766 F.2d at 964. Here, the allegations against defendant Bachman concern his

issuance of the EPO (see Doc. 84 at PAGEID 1437, ¶ 33), his issuance of an arrest warrant in

connection with the EPO (see id. at PAGEID 1438, ¶ 40), and his issuance of a Decision and

Finding of Facts that included an incorrect date of service of the EPO (see id. at PAGEIID 1441,

¶ 55). Each of these actions fell within defendant Bachman’s jurisdiction and were judicial in

nature (i.e., they were actions normally handled by a judge and defendant Bachman dealt with

parties involved in his judicial capacity). See Mireles, 502 U.S. at 12. As such, plaintiff has

failed to persuade the Court that any of his allegations involving defendant Bachman concern

non-judicial acts or acts outside the scope of his jurisdiction. Defendant Bachman is entitled to

absolute judicial immunity related to these actions.

B. Qualified immunity

The qualified-immunity doctrine “protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Al-Lamadani v. Lang, 624 F. App’x

405, 409 (6th Cir. 2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)) (internal

quotation marks omitted). The Court conducts a two-step inquiry when considering a claim for

qualified immunity. Id. (citing Pearson, 555 U.S. at 232). At the first step, the Court asks

whether the facts viewed in the light most favorable to the plaintiff show that the officer has

violated the plaintiff’s constitutional rights. Id. (citing Pearson, 555 U.S. at 232). At the second

step, the Court asks whether the right was clearly established at the time of the violation. Id.

(citing Pearson, 555 U.S. at 232). “A right is clearly established if the contours of the right are

sufficiently clear that a reasonable official would understand that what he is doing violates that

right.” Id. (quoting Morrison v. Bd. of Trs. of Green Twp., 583 F.3d 394, 400 (6th Cir. 2009)

(internal quotation marks, citation, and alterations omitted)). The Court may consider the two

steps of the inquiry in the order it chooses. Id. (citing Pearson, 555 U.S. at 242). Plaintiff has

the burden to show that a defendant is not entitled to qualified immunity. Id. (citing O’Malley v.

City of Flint, 652 F.3d 662, 667 (6th Cir. 2011)). Even under a liberal pro se pleading standard,

a cognizable civil rights claim must contain more than conclusory allegations and identify a

specific constitutional right that has been allegedly violated. Lillard v. Shelby Cnty. Bd. of

Educ., 76 F.3d 716, 726 (6th Cir. 1996) (“[I]n the context of a civil rights claim, . . . conclusory

allegations of unconstitutional conduct without specific factual allegations fail to state a claim

under section 1983.”).

While Count V specifically alleges “false imprisonment and continued unlawful

detention,” the amended complaint is ambiguous as to the specific constitutional rights allegedly

violated. In plaintiff’s combined articulation of Counts I-III in his amended complaint, he

alleges that defendants violated four constitutional amendments. (See Doc. 84 at PAGEID 1444)

(“Each and every defendant, acting under color of law, violated clearly established rights secured

to the Plaintiff by the United States Constitution under its Second, Fourth, Sixth and Fourteenth

Amendments.”). Construing plaintiff’s pro se amended complaint liberally and as a whole,

however, it appears that plaintiff asserts violations of his Fourth and Fourteenth Amendment

rights. In particular, plaintiff alleges claims of false arrest, false imprisonment,10 malicious

prosecution, and a Brady11 violation.

When a 42 U.S.C. § 1983 plaintiff brings a claim of false arrest, “[t]he federal

constitutional right implicated . . . is the Fourth Amendment right to be arrested only upon

probable cause.” Crockett v. Cumberland Coll., 316 F.3d 571, 579-80 (6th Cir. 2003) (citing

Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995)) (finding that a claim for wrongful arrest

turns on whether officer had probable cause under the Fourth Amendment); Radvansky v. City of

Olmsted Falls, 496 F.3d 609, 614 (6th Cir. 2007) (to prevail on Fourth Amendment false arrest

claim, plaintiff must establish officer lacked probable cause to believe person committed or was

committing an offense). Claims of false arrest and false imprisonment under § 1983 overlap,

with false arrest being a species of false imprisonment. Wallace v. Kato, 549 U.S. 384, 388

(2007). False imprisonment is detention without legal process. Id. at 389. False imprisonment

necessarily ends when the individual becomes held pursuant to legal process, e.g., when he is

arraigned on charges. Id.

To prevail on a false arrest and false imprisonment claim under the Fourth Amendment, a

plaintiff must show that he was arrested without probable cause and detained without legal

process. Wallace, 549 U.S. at 390. “An arrest pursuant to a facially valid warrant is generally a

complete defense to a claim for false arrest or false imprisonment brought under § 1983.”

Voyticky v. Vill. of Timberlake, Ohio, 412 F.3d 669, 677 (6th Cir. 2005) (citing Baker v.

McCollan, 443 U.S. 137, 143-44 (1979)) (footnote omitted).

10 While plaintiff does not use this term, he does imply a claim related to his confinement for some period of time.

(See Doc. 84 at PAGEID 1443, ¶ 63).

11 Brady v. Maryland, 373 U.S. 83 (1963).

Where an officer intentionally provided misleading information or omitted information at

a probable cause hearing for an arrest warrant and the misleading or omitted information is

critical to the finding of probable cause, however, the officer may not rely on the judicial

determination of probable cause. See Voyticky, 412 F.3d at 677 n.4 (citing Mays v. City of

Dayton, 134 F.3d 809, 816 (6th Cir. 1998); United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir.

1997)). An arrestee’s actual innocence is irrelevant to whether there existed probable cause for

an arrest warrant. Baker, 443 U.S. at 145; Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir.

1988). “[A]n arrest grounded in probable cause does not become invalid simply because the

charges are later dropped or the defendant is acquitted.” Manley v. Paramount’s Kings Island,

299 F. App’x 524, 530 (6th Cir. 2008) (citing Williams ex rel. Allen v. Cambridge Bd. of Educ.,

370 F.3d 630, 638 (6th Cir. 2004)).

The Fourth Amendment also encompasses malicious prosecution claims, for which a

plaintiff must show, first:

that a criminal prosecution was initiated against the plaintiff and that the

defendant “ma[d]e, influence[d], or participate[d] in the decision to prosecute.”

Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir.2007)[.] . . . 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, Fox, 489 F.3d

at 237; Voyticky, 412 F.3d at 675. 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. . . . [C]f. Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364,

129 L.Ed.2d 383 (1994) (“[U]nlike the related cause of action for false arrest or

imprisonment, [an action for malicious prosecution] permits damages for

confinement imposed pursuant to legal process.”). Fourth, the criminal

proceeding must have been resolved in the plaintiff's favor.

Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (certain citations omitted). For

purposes of the first malicious prosecution element, the defendant must have done more than

“passively or neutrally” participated in the decision to prosecute. Id. at 308 n. 5. “[I]t has been

long settled that ‘the finding of an indictment, fair upon its face, by a properly constituted grand

jury, conclusively determines the existence of probable cause for the purpose of holding the

accused to answer.’” Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006) (quoting Higgason v.

Stephens, 288 F.3d 868, 877 (6th Cir. 2002)). “[A] transgressing officer must have acted

‘knowingly or recklessly’ in making false statements that were material to the prosecution” for

an indictment to not insulate a defendant from a malicious prosecution claim under the Fourth

Amendment. Mills v. Barnard, 869 F.3d 473, 480 (6th Cir. 2017).

As it relates to the Fourteenth Amendment, plaintiff appears to allege that defendants

violated Brady, which established that the prosecution’s suppression of exculpatory evidence

violates due process where it is material to either guilt or punishment. Where “the underlying

criminal proceeding terminated in appellant’s favor,” however, “he has not been injured by the

act of wrongful suppression of exculpatory evidence.” McCune v. City of Grand Rapids, 842

F.2d 903, 907 (6th Cir. 1988)

1. The individual County defendants

Plaintiff alleges that defendants Hamilton County, Garrison, Hrnyak, and Deters

“undertook and performed an investigation into [plaintiff] allegedly violating the EPO ([the

Loveland misdemeanor case]), or, alternatively, performed no investigation or a grossly

inadequate investigation, or, alternatively, concealed exculpatory records with purpose to impair

their availability for use in the Loveland PD’s investigation.” (Doc. 84 at PAGEID 1438, ¶ 41).

He also alleges that defendant Garrison filed a discovery response in the Loveland misdemeanor

case (id. a PAGEID 1439, ¶ 43) and otherwise, along with defendants Deters, Prem, and

Hamilton County, “permitted the use of, or agreed to the continued use of” the incorrect date of

service of the EPO to “corrupt the outcome” of the Loveland misdemeanor case. (Id. at PAGEID

1439-1440, ¶ 46).

Plaintiff alleges that defendant Polston, assigned to the Felony case, knew about the

alleged corruption of the Loveland misdemeanor case and furthered this scheme by agreeing that

one of several defendants would “falsely represent” the authenticity and date of the EPO. (Id. at

PAGEID 1441, 1449, ¶¶ 51, 96).

As it relates to the Loveland misdemeanor case, the County defendants argue that these

allegations do not identify the violation of a clearly established constitutional right. The Court

agrees. According to the amended complaint, the case was initiated and a warrant issued for

plaintiff’s arrest without any involvement by the County defendants (other than, potentially,

defendant Hrnyak, who the Court addresses separately below). (See Doc. 84 at PAGEID 1433,

1438, ¶¶ 9, 40). At most, plaintiff vaguely alleges that, at some point between June 30 and July

28, 2017, County defendants Hamilton County, Garrison, Hrnyak, and Deters either “undertook

and performed an investigation” or “performed no investigation or a grossly inadequate

investigation” related to the Loveland misdemeanor case. (Id. at PAGEID 1438, ¶ 41). These

allegations fail to state a plausible Fourth Amendment claim under 42 U.S.C. § 1983. See

Lillard, 76 F.3d at 726. There is no plausible allegation that any of the County defendants

“intentionally provided misleading information or omitted information at a probable cause

hearing for an arrest warrant and [that] the misleading or omitted information [was] critical to the

finding of probable cause” in the Loveland misdemeanor case. Voyticky, 412 F.3d at 677 n.4

(citation omitted).

As it relates to the Felony case, the County defendants emphasize that a grand jury

indicted plaintiff, a fact plaintiff admits. (Doc. 84 at PAGEID 1441, ¶ 50). See Barnes, 449 F.3d

at 716 (quoting Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002)) (a facially valid

indictment establishes probable cause). Plaintiff’s allegation in the amended complaint

regarding the Felony indictment is passive (Doc. 84 at PAGEID 1441, ¶ 50) (“[t]he Grand Jury .

. . was presented with a copy of the unlawfully issued EPO”) and identifies no specific conduct

or involvement at all by any of the County defendants. Given the indictment and the lack of

allegations that any of the County defendants specifically interfered in that proceeding, the

amended complaint does not state a Fourth Amendment claim against the County defendants

related to the Felony case.

As it relates to defendant Hrnyak, plaintiff alleges that he “falsely documented . . . that he

had personally served the EPO on [plaintiff].” (Doc. 84 at PAGEID 1437). He then makes a

conclusory allegation that defendant Hrnyak had a “plan” with defendants Bachman, Hamilton

County, and Ploehs to defraud plaintiff by corrupting the outcome of the Loveland misdemeanor

case—providing no facts or details as to why, when, or how this plan was developed. (See id. at

PAGEID 1437-38)). There is no specific factual allegation that defendant Hrnyak played any

active (not just a neutral or passive) role in any part of either the Loveland misdemeanor or

Felony case prosecutions. See Sykes, 625 F.3d at 308 n.5. In fact, plaintiff alleges that the

erroneous service date of the EPO was corrected prior to charges being filed in either case (Doc.

84 at PAGEID 1433, ¶ 8), suggesting less than active participation by Hrnyak to perpetuate his

initial mistake. The Court finds that plaintiff has failed to adequately allege defendant Hrnyak

engaged in blameworthy conduct such that plaintiff states a plausible malicious prosecution or

other Fourth Amendment claim against defendant Hrnyak. See Johnson v. Moseley, 790 F.3d

649, 655 (6th Cir. 2015) (“[A] defendant’s participation must be marked by some kind of

blameworthiness, something beyond mere negligence or innocent mistake, to satisfy the

elements of a malicious prosecution claim under the Fourth Amendment.”).

To the extent that plaintiff alleges a Brady claim connected to either the Loveland

misdemeanor or Felony cases against any of the County defendants, these cases were dismissed.

(Doc. 84 at PAGEID 1434). Plaintiff therefore cannot state a Brady claim related to the

Loveland misdemeanor or Felony cases against any defendant. See McCune, 842 F.2d at 907.

Plaintiff has not demonstrated that any of the individual County defendants are not

entitled to qualified immunity. The County defendants’ motion to dismiss should be granted on

this basis on Counts I-III, V, and VIII as to the individual County defendants.

2. The individual City defendants

To the extent that plaintiff’s constitutional claims relate to the legal advice that defendant

Rengering gave defendant Ploehs (see Doc. 84 at PAGEID 1440, ¶ 49), only qualified immunity

potentially applies. Defendant Rengering’s legal advice was tied to the existence of probable

cause in the Felony case, in which plaintiff was indicted. As discussed in relation to the County

defendants, plaintiff’s indictment in the Felony case established probable cause. See Barnes, 449

F.3d at 716. In other words, his advice was correct. Plaintiff implies, however, that the advice

was not correct but instead the product of defendant Rengering being “fully aware of” a

“meeting of the minds” between several other defendants and other similarly vague and

conclusory allegations that he “agreed to go along” with a concerted attempt to improperly

prosecute plaintiff based on the unlawful EPO and service date thereof. (See Doc. 84 at

PAGEID 1439-41, ¶¶ 45-46, 49). Plaintiff’s amended complaint states no details or factual

context to support these allegations, other than defendant Rengering’s appearance on one

occasion in the Loveland misdemeanor proceedings, where he allegedly spoke on the County’s

behalf. (Id. at PAGEID 1439, ¶ 45). The amended complaint does not contain a plausible

allegation that defendant Rengering’s advice was blameworthy, because is there no plausible

allegation that the EPO was unlawful (see supra n.3) or that defendant Rengering was aware of

an improper service date of the EPO. See Moseley, 790 F.3d at 655 (“[E]ven false testimony is

not actionable as malicious prosecution unless deliberate—i.e., given with knowledge of, or

reckless disregard for, its falsity.”). See also Lillard, 76 F.3d at 726 (a section 1983 action must

be premised on specific factual allegations). Finally, there are no allegations in the amended

complaint that directly tie defendant Rengering to the indictment in the Felony case. Defendant

Rengering is entitled to qualified immunity for any Fourth Amendment claims related to his legal

advice related to the Felony case.

As it relates to defendant Ploehs, plaintiff points to a voicemail that defendant Ploehs left

plaintiff telling him that an EPO had issued and seems to allege that this voicemail contributed to

a lack of probable cause to support plaintiff’s arrest in the Loveland misdemeanor case. (Doc. 84

at PAGEID 1437, ¶ 37). But leaving aside the fact the contents of defendant Ploehs’s voicemail

to plaintiff were true (an EPO had issued), the only link between defendant Ploehs and the

Loveland police department (who, in fact, filed charges against plaintiff) is plaintiff’s allegation

that defendant Ploehs, along with defendants Bachman and Hamilton County, “knowingly

caused . . . the false date of service on the plaintiff to be disseminated . . . to the Loveland PD . . .

to defraud [plaintiff] by corrupting the outcome of the Loveland PD’s investigation. . . .” (See id.

at ¶ 38). This vague and conclusory allegation does not lead to a reasonable inference that

defendant Ploehs was somehow responsible for the Loveland police department’s decision to

press charges against plaintiff. There is no plausible claim that defendant Ploehs violated

plaintiff’s Fourth Amendment rights related to the Loveland misdemeanor case.

Plaintiff also points to defendant Ploehs’s conduct with respect to the Felony case. He

alleges that defendants Ploehs and Rengering “opened an investigation” that led to the Felony

case and discussed whether there was probable cause to charge plaintiff. (Doc. 84 at PAGEID

1139-41, ¶¶ 44, 49). Plaintiff alleges that based on Rengering’s legal advice, “Ploehs filed a

complaint and affidavit into Hamilton County’s proprietary computer system on January 8, 2018.

. . .” (Id. at PAGEID 1440, ¶ 49). Plaintiff argues that defendants Ploehs and Rengering are not

entitled to qualified immunity because these allegations demonstrate that they acted “in a wanton

or reckless manner, or with malicious purpose.” (Doc. 105 at PAGEID 1566). Although an

indictment generally establishes probable cause, see Barnes, 449 F.3d at 716, “an exception to

this rule exists ‘when the defendants knowingly present false testimony to the grand jury’ to

obtain an indictment . . . or when they ‘testify with a reckless disregard for the truth[.]’”

Bickerstaff v. Lucarelli, 830 F.3d 388, 398 (6th Cir. 2016) (quoting Martin v. Maurer, 581 F.

App’x. 509, 511 (6th Cir. 2014) and Robertson v. Lucas, 753 F.3d 606, 616 (6th Cir. 2014))

(discussing federal malicious-prosecution claim). The amended complaint fails to allege any

facts that would plausibly suggest malicious purpose, bad faith, or wanton or reckless actions on

the part of defendants Ploehs and Rengering in connection with the prosecution of the Felony

case. Plaintiff does not allege that Ploehs falsely testified before the grand jury or that Rengering

was involved in the presentation of the case to the grand jury. In any event, to the extent the

amended complaint alleges the indictment was based on allegedly incorrect information and that

an adequate investigation would have revealed such (see Doc. 84 at PAGEID 1140, ¶ 49), “a

defendant’s participation must be marked by some kind of blameworthiness, something beyond

mere negligence or innocent mistake, to satisfy the elements of a malicious prosecution claim

under the Fourth Amendment.” Johnson, 790 F.3d at 655. Plaintiff has not demonstrated that

defendant Rengering and Ploehs are not entitled to qualified immunity.12

Finally, as discussed with respect to the County defendants, any Brady claim asserted

against defendants Ploehs of Rengering (see Doc. 84 at PAGEID 1438-40, ¶¶ 41, 45, 46), even if

it were not insufficiently vague, cannot stand because neither the Loveland misdemeanor case

nor the Felony case proceeded to trial. See McCune, 842 F.2d at 907.

In sum, plaintiff has failed to demonstrate that defendants Ploehs and Rengering are not

entitled to qualified immunity related to plaintiff’s constitutional claims in Counts I-III, V, and

VIII.

3. Defendant Bachman

Plaintiff alleges that defendant Bachman, with defendants Ploehs and Hamilton County,

“planned, attended and/or caused [his] false imprisonment. . . .” (Doc. 84 at PAGEID 1438, ¶

39). Aside from this conclusory allegation, however, the amended complaint does not allege

specific conduct by defendant Bachman violating a constitutional right. As discussed in

connection with absolute immunity, plaintiff specifically alleges that defendant Bachman issued

the EPO, the arrest warrant in connection with the EPO, and a Decision and Finding of Facts that

included an incorrect date of service of the EPO. (See Doc. 84 at PAGEID 1437-38, 1441, ¶¶ 33,

40, 55). These specific alleged actions, within defendant Bachman’s jurisdiction and judicial in

12 Plaintiff also argues in response to the County and City defendants’ motions to dismiss that the indictment in the

Felony case was possible only because of the “unlawfully issued EPO. . . .” (Doc. 105 at PAGEID #: 1580). But

that EPO issued and became a final judgment. (See Doc. 108-1). Plaintiff did not appeal. (See supra n.3).

Plaintiff’s argument that the EPO was unlawful relies on an improper collateral attack on this final state court

judgment. See O’Nesti v. De Bartolo Realty Corp., 862 N.E.2d 803, 806 (Ohio 2007) (citing Fort Frye Teachers

Ass’n., OEA/NEA v. State Emp. Relations Bd., 692 N.E.2d 140, 144 (Ohio 1998)) (“Issue preclusion . . . serves to

prevent relitigation of any fact or point that was determined by a court of competent jurisdiction in a previous action

between the same parties or their privies.”). Moreover, the illegality of the EPO would seem to relate, if to any

defendant, defendant Bachman and not the other defendants.

nature, do not support a reasonable inference that defendant Bachman violated his constitutional

rights. Cf. Mireles, 502 U.S. at 12 (judges are generally immune from liability for actions that

are judicial in nature and within their jurisdiction). Plaintiff insists that these actions

intentionally included a falsehood: the improper date of service of the EPO. (Doc. 84 at

PAGEID 1441, ¶ 55). But plaintiff supports this narrative with conclusory and vague allegations

that defendants Bachman and Ploehs “openly devised a plan” to serve plaintiff with the EPO and

to “defraud Plaintiff. . . .” (Id. at PAGEID 1437, ¶¶ 34, 38). Without a plausible, factual

allegation that defendant Bachman intentionally manufactured or fabricated some evidence that

resulted in the violation of his constitutional rights, plaintiff has not demonstrated that Defendant

Bachman is not entitled to qualified immunity. See Ahlers v. Schebil, 188 F.3d 365, 373-74 (6th

Cir. 1999) (“At best, however, the investigation’s lack of thoroughness might support an

inference of negligence, but it does not demonstrate knowing or intentional behavior designed to

violate [the plaintiff’s] constitutional rights.”). Plaintiff has failed to demonstrate that defendant

Bachman is not entitled to qualified immunity.

C. Municipal liability

To state a 42 U.S.C. § 1983 claim for relief against a municipality, plaintiff’s amended

complaint must allege facts showing that the misconduct giving rise to the plaintiff’s injuries was

the result of a policy, regulation, decision, or custom promulgated by the city. Bright v. Gallia

Cnty., Ohio, 753 F.3d 639, 660 (6th Cir. 2014) (citing Shamaeizadeh v. Cunigan, 338 F.3d 535,

556 (6th Cir. 2003)). The plaintiff must plead: “(1) that a violation of a federal right took place,

(2) that the defendants acted under color of state law, and (3) that a municipality’s policy or

custom caused that violation to happen.” Id. at 660 (citing Lambert v. Hartman, 517 F.3d 433,

439 (6th Cir. 2008)). See also Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981) (municipality’s

policy must be “moving force” behind constitutional deprivation) (citing Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 694 (1978)). “The ‘official policy’ requirement [of

Monell] was intended to distinguish acts of the municipality from acts of employees of the

municipality, and thereby make clear that municipal liability is limited to action for which the

municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)

(emphasis in original). See also Monell, 436 U.S. at 691 (“[A] municipality cannot be held liable

under § 1983 on a respondeat superior theory.”).

Plaintiff alleges in his amended complaint that defendants Cincinnati and Hamilton

County (1) had policies, practices, or customs that did not require them to turn over exculpatory

evidence and (2) failed to adequately train and supervise its employees regarding probable cause

and the requirement that exculpatory evidence be turned over to the defense. (Doc. 84 at

PAGEID 1442-43). Plaintiff further argues that defendants Cincinnati and Hamilton County

exhibited deliberate indifference to the constitutional rights of plaintiff in allowing these alleged

conditions. (Id. at PAGEID 1443).

As an initial matter, as explained above, plaintiff has not identified a violation of his civil

rights by defendants. Even if he had, the complaint does not plausibly allege a “policy or

custom” of defendant Hamilton County or defendant Cincinnati that resulted in the alleged

deprivation of rights. At most, plaintiff’s amended complaint describes an isolated incident in

which a particular defendant was allegedly impacted by a failure to turn over exculpatory

evidence or establish probable cause.13 Plaintiff has failed to identify a specific policy, connect

any such policy to either defendant Hamilton County or defendant Cincinnati, or allege specific

13 This argument also undercuts plaintiff’s argument elsewhere that the lack of probable cause was deliberate,

instead implying that the individual defendants’ actions allegedly pertaining to his arrest and indictment were simply

the result of improper training.

facts showing that he suffered a deprivation of constitutional rights based on the execution of

such a specific policy. See Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)

(citing Coogan v. City of Wixom, 820 F.2d 170, 176 (6th Cir. 1987), overruled on other grounds

as stated in Frantz v. Vill. of Bradford, 245 F.3d 869 (6th Cir. 2001)) (“[T]o satisfy the [Monell]

requirements a plaintiff must ‘identify the policy, connect the policy to the city itself and show

that the particular injury was incurred because of the execution of that policy.’”). See also

Burgess v. Fischer, 735 F.3d 462, 479 (6th Cir. 2013) (“[E]ven assuming there was an

underlying constitutional violation, we affirm the dismissal of the Monell claim because

Plaintiffs have failed to set forth sufficient facts to establish an unconstitutional custom or

policy.”). Plaintiff has not alleged any other instances of misconduct to plausibly support an

inference of a custom or a pattern in this case. The Monell claims against defendant Hamilton

County and defendant Cincinnati should be dismissed.

D. Tort immunity under the PSTLA

The defendants assert that they are shielded from liability for the tort claims asserted by

operation of the PSTLA. To determine whether a political subdivision enjoys immunity under

the PSTLA, Ohio courts employ a three-tiered analysis. Hortman v. Miamisburg, 852 N.E.2d

716, 718 (Ohio 2006). Courts are to first examine whether the political subdivision falls within

the general immunization from liability under Ohio Rev. Code § 2744.02(A). Id. Courts are to

next analyze whether an exception to immunity set out in Ohio Rev. Code § 2744.02(B)(1)-(5)

applies. Id. Finally, courts are to determine whether a defense under Ohio Rev. Code § 2744.03

applies to reinstate immunity. Id.

One of the exceptions set forth in the second part of the analysis (the exception upon

which plaintiff relies) is that “political subdivisions are liable for injury, death, or loss to person

or property caused by the negligent performance of acts by their employees with respect to

proprietary functions of the political subdivisions.” Ohio Rev. Code § 2744.02(B)(2) (emphasis

added). But in the third part of the analysis, the statute incorporates the previously discussed

absolute immunity for prosecuting attorneys and judicial officers. See id. at § 2744.03(A)(7).14

In addition, employees of political subdivisions may have their immunities reinstated unless their

negligent acts or omissions “were with malicious purpose, in bad faith, or in a wanton or reckless

manner. . . .” Id. at § 2744.03(A)(6)(b).15

Both counties and municipal corporations (such as Cincinnati) are included in the

statute’s definition of “political subdivision.” Id. at § 2744.01(F). Expressly enumerated

governmental functions include “[t]he provision . . . of police . . . services or protection[,] . . .

judicial . . . prosecutorial . . . functions[;]” and “[t]he enforcement or nonperformance . . . of any

law. . . .” Id. at §§ 2744.01(C)(2)(a), (f), and (i). The statute’s definition of “proprietary

function” specifically excludes functions that are listed under § 2744.01(C)(2) and “for the

common good of all citizens of the state. . . .” Id. at § 2744.01(G)(1)(a) (incorporating §

2744.01(C)(1)(b)).

Plaintiff argues that defendants Hamilton County and Cincinnati engaged in a proprietary

function as it relates to many of his allegations throughout the amended complaint because they

14 This subsection reads:

The political subdivision, and an employee who is a county prosecuting attorney, city director of

law, village solicitor, or similar chief legal officer of a political subdivision, an assistant of any

such person, or a judge of a court of this state is entitled to any defense or immunity available at

common law or established by the Revised Code.

Id.

15 This subsection also excepts political subdivision employees from immunity if their acts or omissions are

“manifestly outside the scope of . . . employment or official responsibilities” or if “civil liability is expressly

imposed” for the act or omission elsewhere in Ohio’s Revised Code. Id. at §§ 2744.03(a)(6)(a), (c). Plaintiff’s

arguments relate only to subsection (b).

were “providing, maintaining, and monitoring computer services. . . .” (See Doc. 105 at

PAGEID 1573). The Court is not persuaded. Despite plaintiffs attempts to skirt the operation of

the PSTLA, the allegations of the complaint concern the provision of police services,

prosecutorial functions, and law enforcement. See Ohio Rev. Code § 2744.01(C)(2). Any

provision, maintaining, or monitoring of computer services related to these actions was part and

parcel to the City and County defendants’ performance of police services, prosecutorial

functions, and law enforcement—all governmental functions as defined by the PSTLA.

In addition, immunity would be reinstated (even if was eliminated pursuant Ohio Rev.

Code § 2744.02) to the individual County defendants, the individual City defendants, and

defendant Bachman based on the application of Ohio Rev. Code §§ 2744.03(A)(6) and (7). See

Chesher v. Neyer, 477 F.3d 784, 797 (6th Cir. 2007) (“Whether the defendants are liable as

individuals . . . turns on the availability of statutory immunity . . . [and] whether any of the

immunity exceptions § 2744.03(A)(6) apply.”). The specific, nonconclusory allegations against

the County and City defendants do not plausibly assert malice, bad faith, or wanton/reckless

behavior that would prevent immunity; rather, they describe political-subdivision employees

engaged in their normal functions. See Ohio Rev. Code § 2744.03(A)(6). Vague and blanket

allegations of malice are insufficient to defeat defendants’ motions to dismiss on the basis of tort

immunity. (See, e.g., Doc. 84 at PAGEID 1435) (“At all times relevant to this action, each

individually named defendant (without exclusion) acted maliciously, in bad faith, and/or in a

wanton or reckless manner. . . .”). See Mills, 869 F.3d at 481 (“[T]he plain statement that

Jenkins ‘intentionally, maliciously, [or] with ... reckless disregard’ subjected Mills to malicious

prosecution is insufficient standing on its own.”) (citing Iqbal, 556 U.S. at 686). The County

prosecutors, defendant Rengering, and defendant Bachman also retain their common law

absolute immunities already discussed. See Ohio Rev. Code § 2744.03(A)(7).

Political subdivisions Hamilton County and Cincinnati retain immunity related to the

actions of their employees “engaged in the performance of a judicial, quasi-judicial, [or]

prosecutorial . . . function[,]” i.e., defendants Deters, Prem, Garrison, Polston, Rengering, and

Bachman. Id. at § 2744.03(A)(1). This leaves only Hamilton County and Cincinnati’s potential

liability related to the actions of defendants Hrnyak and Ploehs. But as discussed above, plaintiff

has not offered a plausible argument that their police and law enforcement actions described in

plaintiff’s amended complaint could be considered anything other than governmental functions.

Finally, plaintiff argues that if the Court finds that the PSTLA immunizes Cincinnati or

Hamilton County, the doctrine of respondeat superior provides an alternative basis for liability.

(Doc. 105 at PAGEID 1573-74) (citing Stallworth v. City of Cleveland, 893 F.2d 830 (6th Cir.

1990) and Longfellow v. City of Newark, 480 N.E.2d 432 (Ohio 1985)). The PSTLA, however,

“was enacted in response to the judicial abolishment of the common-law doctrine of sovereign

immunity for municipal corporations . . . . The Act established statutory tort immunity in some

cases in which political subdivisions, including cities, may otherwise be sued in negligence.”

Haynes v. Franklin, 346, 767 N.E.2d 1146, 1149 (Ohio 2002) (citation omitted). The doctrine of

respondeat superior does not defeat the immunity afforded defendants Hamilton County or

Cincinnati under the PSTLA.

E. Fraud claims (Counts XII and XIII)

Although a combination of absolute, qualified, and tort immunities serve to eliminate all

of the claims against all of the defendants, they raise several alternative bases for why plaintiff’s

claims fail as a matter of law. The Court begins with plaintiff’s fraud claims.

Both the County and City defendants argue that plaintiff has failed to adequately allege

fraud. A claim for fraud under Ohio law requires (1) a representation, or concealment of fact

where there is a duty to disclose, (2) materiality, (3) that the representation was made falsely (or

with such disregard as to the truth that knowledge can be inferred), (4) justifiable reliance on the

misrepresentation, and (5) resulting injury. Cohen v. Lamko, Inc., 462 N.E.2d 407, 409 (Ohio

1984) (citation omitted). To meet the heightened pleading requirements for fraud under Rule

9(b) of the Federal Rules of Civil Procedure, a plaintiff must allege “the time, place, and content

of the alleged misrepresentation on which he or she relied; the fraudulent scheme; the fraudulent

intent of the defendants; and the injury resulting from the fraud.” Coffey v. Foamex L.P., 2 F.3d

157, 161-62 (6th Cir. 1993) (quoting Ballan v. Upjohn Co., 814 F. Supp. 1375, 1385 (W.D.

Mich. 1992)). In the context of an alleged fraudulent omission, a plaintiff must plead: “(1)

precisely what was omitted; (2) who should have made a representation; (3) the content of the

alleged omission and the manner in which the omission was misleading; and (4) what [the

tortfeaser(s)] obtained as a consequence of the alleged fraud.” Republic Bank & Tr. Co. v. Bear

Stearns & Co., Inc., 683 F.3d 239, 256 (6th Cir. 2012) (citation omitted).

Plaintiff seems to allege fraud in connection with defendant Ploehs’s voicemail to him

regarding the issuance of the EPO. (See Doc. 84 at PAGEID 1437, ¶ 37). As discussed above,

however, an EPO had issued; defendant Ploehs’s representation was not false. To the extent,

then, that plaintiff alleges a fraudulent omission in this voicemail (i.e., the status of service of the

EPO), plaintiff does not allege that (or suggest any legal basis why) defendant Ploehs would

have been under an obligation to discuss any details regarding service of the EPO. Put

differently, the Court sees no reason why a reasonable trier of fact would find that plaintiff

justifiably relied on an omission about service of the EPO. The service of the EPO was not the

alleged basis for the voicemail. The alleged voicemail does support a cognizable fraud claim.

The only other alleged representation of any kind in the amended complaint is that

defendants Ploehs, Hrnyak, Hamilton County, and Bachman, later joined by Garrison, Prem,

Polston, Deters, and Rengering, “agreed that at least one . . . would falsely represent” the legality

of the EPO and the date of service of the EPO. (Doc. 84 at PAGEID 1448-49, ¶¶ 95-96). This

allegation does not pertain to a specific person nor include when (or even if) this particular

representation ever actually took place. Plaintiff frames the misrepresentation as “[b]eginning on

or around June 29, 2017,” and otherwise does not identify a time that the misrepresentation was

allegedly made. (See id. at ¶ 95). These allegations are too vague to support a fraud claim. See

Coffey, 2 F.3d at 161-62. Whether plaintiff’s allegations are construed as fraudulent omission or

misrepresentation, plaintiff’s fraud claims against all defendants (except Cincinnati, who is not

identified in Counts XII and XIII) should be dismissed.

F. OCAA claims

Under the OCAA, “[n]o person employed by, or associated with, any enterprise shall

conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of

corrupt activity. . . .” Ohio Rev. Code § 2923.32(A)(1). This statute is patterned after RICO,

and Ohio courts look to federal case law applying RICO to guide in its application. U.S.

Demolition & Contracting, Inc. v. O’Rourke Constr. Co., 640 N.E.2d 235, 240 (Ohio App.

1994). Civil claims under the federal RICO statute, 18 U.S.C. § 1962(c), require proof of the

following elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering

activity.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985) (footnote omitted). “[A]

pattern of corrupt activity under the [OCAA] requires that predicate crimes be related and pose a

threat of continued criminal activity.” Bradley v. Miller, 96 F. Supp. 3d 753, 773 (S.D. Ohio

2015) (quoting Morrow v. Reminger & Reminger Co., L.P.A., 915 N.E.2d 696, 708 (Ohio App.

2009)).

As an initial matter, neither defendant Hamilton County nor defendant Cincinnati can be

held liable under the OCAA because they are not capable of forming the requisite specific intent.

See Mathis v. Ohio Dep’t of Job & Family Servs., No. 2:11-cv-395, 2011 WL 5075824, at *2

(S.D. Ohio Oct. 25, 2011) (“While the Sixth Circuit has not directly ruled on this issue, an

unpublished Sixth Circuit case and district courts within the Sixth Circuit have all held that a

RICO claim cannot be established against a county because a county cannot form the specific

intent necessary to establish a RICO claim.”) (collecting cases holding that counties,

municipalities, and corporations cannot be held liable under civil RICO laws). The Court

therefore turns to the allegations as they relate to the individual defendants.

Plaintiff’s amended complaint first asserts that defendants Ploehs, Bachman, Hrnyak,

Deters, Garrison, and Hamilton County conspired and committed several predicate offenses “[i]n

or about and between June 2017 and July 2017 . . . with purpose to corrupt the outcome of the

investigation” in the Loveland misdemeanor case. (Doc. 84 at PAGEID 1445, ¶ 77). Plaintiff

then cites a laundry list of alleged, related predicate offenses: telecommunications fraud (Ohio

Rev. Code § 2913.05(A)), tampering with records (Ohio Rev. Code § 2913.42(A)(2)), tampering

with evidence (Ohio Rev. Code § 2921.12(A)(2)), theft in office (Ohio Rev. Code §§

2921.41(A)(l) and (2)), and using sham legal process to facilitate the commission of an offense

(Ohio Rev. Code § 2921.52(B)(3)). (Id.).

The allegations that plaintiff identifies as related to these predicate offenses (see Doc. 84

at PAGEID 1436-38) make no effort to track the elements of the various violations of Ohio

Revised Code sections listed as predicate offenses. While sprinkled with conclusory terms like

“unlawfully,” “falsely,” and “meeting of the minds,” these allegations describe what appear to be

routine actions by the defendants in connection with the issuance of the EPO by defendant

Bachman and the enforcement thereof. In addition, the Court cannot discern a discrete enterprise

or how such enterprise posed a continued threat of criminal activity. See Bradley, 96 F. Supp. 3d

at 773.

Plaintiff next asserts that defendants Ploehs, Hamilton County, Bachman, Garrison,

Rengering, Deters, and Prem conspired and committed several predicate offenses “[i]n or about

and between June 2017 and September 2018” in relation to the Loveland misdemeanor case—in

particular, concealing exculpatory evidence regarding the date of when plaintiff was served with

the EPO and whether the EPO lawfully issued. (Doc. 84 at PAGEID 1446, ¶ 78). Here, plaintiff

alleges related predicate offenses including telecommunications fraud (Ohio Rev. Code §

2913.05(A)), tampering with records (Ohio Rev. Code § 2913.42(A)(2)), tampering with

evidence (Ohio Rev. Code § 2921.12(A)(2)), falsification in a theft offense (Ohio Rev. Code §

2921.13(A)(9)), obstructing justice (Ohio Rev. Code § 2921.32(A)(5) and (6)), theft in office

(Ohio Rev. Code § 2921.41(A)(l)), and using sham legal process to arrest, detain, search or seize

any person or to commit a felony (Ohio Rev. Code §§ 2921.52(B)(2) and (4)). (Id.).

The allegations that plaintiff identifies as related to these predicate offenses (Doc. 84 at

PAGEID 1438-40) are that defendants Deters, Garrison, and Prem did not adequately investigate

the Loveland misdemeanor case; defendant Garrison participated in discovery for the Loveland

misdemeanor case; defendants Rengering and Ploehs investigated what would ultimately result

in the Felony case; defendants Ploehs, Bachman, Hamilton County, Garrison, Rengering, Prem,

and Deters all agreed to use defendant Hrnyak’s allegedly false writ to corrupt the outcome of

the Loveland misdemeanor case; defendant Prem did not dismiss the City misdemeanor case due

to alleged prosecutorial misconduct by defendant Rengering; and plaintiff’s prosecution in the

Loveland misdemeanor case prevented his receipt of certain jail-time credit and his ability to

report alleged violations of federal rights. (Id.)

Here again, these allegations are not tied to the elements of any of the particular predicate

offenses listed. The Court likewise cannot discern the discrete enterprise responsible for the

alleged predicate offenses and how such enterprise posed a continued threat of criminal activity.

See Bradley, 96 F. Supp. 3d at 773.

Plaintiff last asserts that defendants Ploehs, Bachman, Hrnyak, Hamilton County,

Rengering, Garrison, Prem, Deters, and Polston conspired and committed several predicate

offenses “[o]n or about and between January 2, 2018 and January 8, 2020” to cover up allegedly

exculpatory evidence. (Doc. 84 at PAGEID 1446, ¶ 80). Here, the alleged predicate offenses

include telecommunications fraud (Ohio Rev. Code § 2913.05(A)), tampering with records (Ohio

Rev. Code § 2913.42(A)(2)), tampering with evidence (Ohio Rev. Code § 2921.12(A)(2)),

falsification in a theft offense (Ohio Rev. Code § 2921.13(A)(9)), obstructing justice (Ohio Rev.

Code § 2921.32(A)(5)), and using sham legal process to arrest, detain, search and seize any

person (Ohio Rev. Code § 2921.52(B)(2)).

The allegations that plaintiff identifies as related to these predicate offenses (Doc. 84 at

PAGEID 1440-42) concern an investigation related to the Felony case, the related grand jury

proceedings, and the related prosecution; as well as defendant Bachman’s transmission of his

Decision and Findings of Facts related to the EPO and his representation that the EPO was issued

lawfully. (Id.) These allegations are not tied to the elements any of the listed predicate offenses,

say nothing of an “enterprise,” and give no indication of a continued threat of criminal activity.

See Bradley, 96 F. Supp. 3d at 773.

Having reviewed the allegations in the complaint against Ohio’s RICO statute and Rule 8

of the Federal Rules of Civil Procedure’s pleading standard (requiring less than “detailed factual

allegations” but more than “unadorned, the-defendant-unlawfully-harmed me accusation” and

“labels and conclusions[,]” see Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555)), the

Court finds that plaintiff fails to state a claim for relief in Counts VI and VII of the amended

complaint against any of the individual defendants. In addition, the County and City prosecutors

and defendant Bachman retain their common law immunities notwithstanding the OCAA. See

Cullinan v. Abramson, 128 F.3d 301, 308 (6th Cir. 1997) (“Section 1983 was not intended to

abolish [judicial and prosecutorial] immunity . . . and we have been given no reason to suppose

that RICO was intended to abolish it either.”) (internal citation omitted). Counts VI and VII of

the amended complaint should be dismissed against all defendants.

G. Civil rights conspiracy claims

Section 1985 of Title 42 includes three subsections, two of which are potentially

applicable to this case. First, there is a cause of action for conspiracy to obstruct justice or to

intimidate parties, witnesses, or jurors. Id. at § 1985(2). This less-commonly-invoked

subsection sets out two discrete claims: one related to justice in federal courts and the other

related to equal protection in state or territorial court proceedings. Allen v. Allied Plant Maint.

Co. of Tenn., 636 F. Supp. 1090, 1093 & n.4 (M.D. Tenn. 1986) (discussing the two-parts of this

subsection). Relevant here, the latter state-court related claim must raise “racial or other class-

based discriminatory animus” to state a claim upon which relief can be granted. Id. at 1093

(citing Bretz v. Kelman, 773 F.2d 1026, 1029-30 (9th Cir. 1985)).

Section 1985 also provides a cause of action for conspiracy to deprive an individual the

equal protection of the law. See 42 U.S.C. § 1985(3). To state a § 1985(3) claim, plaintiff must

show:

(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any

person or class of persons of the equal protection of the laws, or of equal

privileges and immunities under the laws; and (3) an act in furtherance of the

conspiracy; (4) whereby a person is either injured in his person or property or

deprived of any right or privilege of a citizen of the United States.

United Brotherhood. of Carpenters and Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 828-29

(1983). A § 1985(3) claim must also allege racial or class-based invidiously discriminatory

animus driving the conspiracy. See Scott, 463 U.S. at 834 (citing Griffin v. Breckenridge, 403

U.S. 88, 102 (1971)). As it relates to either claim, “conspiracy . . . must be pled with some

degree of specificity and . . . vague and conclusory allegations unsupported by material facts will

not be sufficient to state such a claim.” Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro,

477 F.3d 807, 832 (6th Cir. 2007) (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538-39 (6th Cir.

1987)).

Plaintiff has failed to plead specific facts to support a conspiracy claim under either 42

U.S.C. §§ 1985(2) or (3). At multiple points in his amended complaint, plaintiff alleges

“meeting[s] of the mind[,]” “agree[ments,]” and “conspir [ing]” between various defendants to

take actions adverse to plaintiff. (See, e.g., Doc. 84 at PAGEID 1438-39, 1445, 1448-49, ¶¶ 41,

45, 76-77, 95-96). But these allegations contain only general date ranges of when they might

have occurred (if dates are provided at all) untethered from any context as to where, between

exactly whom, or why these agreement were made. Without any such factual content, the Court

cannot reasonably conclude that plaintiff states a plausible claim of conspiracy against

defendants. See Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

Moreover, plaintiff has made no allegation that the defendants’ actions were in any way

motivated by racial or class-based animus or an intent to deprive plaintiff of the equal protection

of the laws. Therefore, plaintiff’s civil rights conspiracy claim, whether asserted under 42

U.S.C. § 1985(2) or § 1985(3), should be dismissed. See Allen, 636 F. Supp. at 1093; Scott, 463

U.S. at 834.

Finally, because plaintiff has no viable claim under 42 U.S.C. § 1985, he also has no

claim under 42 U.S.C. § 1986 against defendant Deters. “Section 1986 establishes a cause of

action against anyone, who has knowledge of a conspiracy under § 1985, and ‘having power to

prevent or aid in preventing the commission of the same, neglects or refuses so to do.’”

Radvansky, 395 F.3d at 314 (quoting 42 U.S.C. § 1986). Because the complaint does not state a

claim under 42 U.S.C. § 1985, there can be no liability under § 1986. Id. at 315. Therefore,

plaintiff’s claim under 42 U.S.C. § 1986 should be dismissed.

G. Abuse of process

Abuse of process under Ohio law requires “(1) that a legal proceeding has been set in

motion in proper form and with probable cause; (2) that the proceeding has been perverted to

attempt to accomplish an ulterior purpose for which it was not designed; and (3) that direct

damage has resulted from the wrongful use of process.” Bickerstaff, 830 F.3d at 399 (quoting

Voyticky, 412 F.3d at 677) (remaining citation omitted). The claim cannot survive if supported

“only by ‘conclusory allegations regarding the defendants’ ulterior motives with no facts to

support those contentions.’” Id. at 400 (quoting Hahn v. Star Bank, 190 F.3d 708, 718 (6th Cir.

1999)).

The County and City defendants argue that plaintiff has failed to articulate an ulterior

motive that animated their prosecutions of plaintiff. Plaintiff first responds that his amended

complaint identifies the City defendants’ ulterior motive in its prosecution of the Loveland

misdemeanor and Felony cases: a scheme to deny him “3-for-1 credit” on the City misdemeanor

case. (Doc. 84 at PageID 1440, ¶ 48).16 The denial of this credit, plaintiff argues, both

prevented him from reporting a violation of his speedy trial right in the City misdemeanor case

and resulted in his ultimate conviction therein. (Id.). Plaintiff does not allege any details

regarding the 3-for-1 credit program, such as whether it is a mandatory program, how it is

administered, whether cases that are ultimately dismissed (i.e., the Loveland misdemeanor and

Felony cases) prevent a defendant from availing himself of the benefit, and most importantly,

how denial of this benefit is connected to his speedy trial rights or his ultimate conviction in the

City misdemeanor case. Without such information, plaintiff does not adequately allege damage

resulting from the alleged abuse of process.

Plaintiff also seems to argue that defendant Prem failed to alert him to the fact that

defendant Rengering knew that the EPO was illegal, which prevented dismissal of the City

misdemeanor case based on defendant Rengering’s prosecutorial misconduct for lying to the

state court. (Id. at PAGEID 1440, ¶ 47). But as discussed above, the EPO became a final

protection order; there is therefore no reason to believe that defendant Prem or defendant

Rengering intentionally misrepresented its validity to the state court in connection with the City

misdemeanor case. (See supra n.3).

Finally, plaintiff argues that the prosecution of the Loveland misdemeanor case allowed

defendant Ploehs to interfere with the grand jury proceeding in the Felony case. The amended

complaint does not plausibly describe that defendants continued to prosecute the Loveland

misdemeanor case in order to establish probable cause for the Felony case beyond innuendo and

16 Plaintiff also cites paragraph 45 of the amended complaint as demonstrating the City defendants’ ulterior motives

(Doc. 105 at PAGEID 1579), but the Court cannot discern an ulterior motive from this paragraph.

vague conspiracy theories. Moreover, the only specific allegations even possibly connecting the

individual City defendants, in particular, to the Loveland misdemeanor case are Ploehs’s

voicemail that an EPO had issued against plaintiff and defendant Rengering’s representation of

Hamilton County during one court proceeding in the Loveland misdemeanor case after charges

were filed, during which he requested electronic monitoring of plaintiff. (See Doc. 84 at

PAGEID 1437, 1439). But neither allegation reflects that defendant Ploehs or defendant

Rengering had any direct involvement in the Loveland misdemeanor case such that an alleged

ulterior motive related to the Felony case would drive its continued prosecution.

Because the allegations in the amended complaint do not permit a reasonable inference

that any of the defendants had an ulterior motive to continue their prosecutions of plaintiff, the

abuse of process claim should be dismissed. See Bickerstaff, 830 F.3d at 400.

H. Ohio constitutional claims

Defendants do not address these claims specifically except to the extent that the County

defendants argue that they are foreclosed by the PSTLA. (See Doc. 102 at PAGEID 1551). The

Ohio Supreme Court “has refused to recognize a private cause of action for violations of the

Ohio Constitution when it is determined that there are adequate remedies provided by statute or

administrative process.” Williams v. Nice, 58 F. Supp. 3d 833, 839 (N.D. Ohio 2014) (quoting

Provens v. Stark Cnty. Bd. of Mental Retardation & Developmental Disabilities, 594 N.E.2d 959,

965-66 (Ohio 1992)). See also Burr v. Burns, No. C2-04-1118, 2005 WL 1969532, at *10 (S.D.

Ohio Aug. 12, 2005) (“Plaintiffs’ claim under the search and seizure provisions of the Ohio

Constitution is a restatement of their federal claim under the Fourth Amendment to the United

States Constitution. Section 1983 provides a full panoply of remedies for a search and seizure

claim under the United States Constitution.”); Ware v. Sanderson, No. 1:12-cv-01920, 2013 WL

587583, at *3 (N.D. Ohio Feb. 13, 2013) (“The Ohio Constitution does not provide a private

cause of action for false arrest or excessive force, nor does it provide a civil damages remedy.”).

Plaintiff specifically alleges that defendants violated his right, as a victim of a crime, “to

reasonable protection from the accused or any person acting on behalf of the accused. . . .” Ohio

Const. art. I, § 10a(A)(4). The Court can locate no allegations relative to this alleged violation in

plaintiff’s amended complaint and he makes no argument relative to this claim in his responsive

memoranda. This, along with a lack of a private cause of action under Ohio’s Constitution, is

fatal to the first claim in Count XIV. Plaintiff also alleges violations of Ohio Const. art. I, § 14,

which is nearly identical to the search-and-seizure provision of the Fourth Amendment and

which is necessarily adequately remedied by use of 42 U.S.C. § 1983. See Burr, 2005 WL

1969532, at *10. As such, the Court finds that plaintiff’s claims based on Ohio’s Constitution

should be dismissed.

VI. CONCLUSION

Plaintiff’s amended complaint describes a broad conspiracy among numerous Cincinnati

and Hamilton County officials to corrupt legal proceedings in order to harass him and deprive

him of his constitutional rights. The allegations in the amended complaint that are plausible,

factual, and nonconclusory, however, describe judicial and prosecutorial functions for which

defendants Bachman, Rengering, Deters, Prem, Garrison, and Polston are entitled to absolute

immunity. Plaintiff has further failed to articulate specific constitutional violations by these

defendants, in addition to defendants Hrnyak and Ploehs, and they therefore remain entitled to

qualified immunity. Plaintiff has also failed to allege policies, practices, or customs promulgated

by Cincinnati or Hamilton County that resulted in deliberate indifference to his constitutional

rights such that either could be held liable under Monell.

As it relates to plaintiff’s OCAA claims, plaintiff’s amended complaint does not

adequately allege the particulars of the conspiracy or the commission of predicate offenses.

Moreover, Cincinnati and Hamilton County cannot form the requisite intent to be held liable

under this statute. As it relates to plaintiff’s state law claims, defendants are shielded by a

combination of the PSTLA, their common law immunities, and plaintiff’s failure to adequately

plead their elements. Finally, plaintiff’s Ohio constitutional claims must be dismissed because

the Ohio Supreme Court does not recognize a private right of action under the sections of the

Ohio Constitution invoked.

IT IS THEREFORE RECOMMENDED THAT:

A. defendant Bachman’s motion for judgment on the pleadings (Doc. 99) be construed

as a motion to dismiss; and

B. defendants’ motions to dismiss (Docs. 97, 99, and 102) be GRANTED as follows:

1. Counts I and II of the amended complaint be dismissed as to all defendants;

2. Count III of the amended complaint be dismissed as to defendant Cincinnati and

Hamilton County;

3. Count IV of the amended complaint be dismissed as to all defendants;

4. Count V of the amended complaint be dismissed as to all defendants;

5. Counts VI and VII of the amended complaint be dismissed as to all defendants;

6. Counts VIII of the amended complaint be dismissed as to defendant Deters, the

only defendant identified in this Count;

7. Count IX of the amended complaint be dismissed as to all defendants;

8. Counts X and XI of the amended complaint negligence be dismissed as to all

defendants;

9. Counts XII and XIII of the amended complaint be dismissed as to all defendants

except Cincinnati, which was not identified in this Count; and

10. Count XIV of the amended complaint be dismissed as to all defendants.

C. In the alternative, as it relates to the state law claims asserted in Counts IV, VI-VII,

IX-XIV, it is recommended that the District Court refuse to exercise its supplemental

jurisdiction. See Novak v. MetroHealth Med. Ctr., 503 F.3d 572, 583 (6th Cir. 2007)

(“A district court may decline to exercise supplemental jurisdiction over state law

claims if it has dismissed all claims over which it had original jurisdiction.”) (citing

28 ULS.C. § 1367(c)(3)).

United States Magistrate Judge

43

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRYAN KANU, Case No: 1:19-cv-156

Plaintiff, Dlott, J.

Litkovitz, M.J.

vs.

CITY OF CINCINNATI et al.,

Defendants.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the

proposed findings and recommendations. This period may be extended further by the Court on

timely motion for an extension. Such objections shall specify the portions of the Report objected

to and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based in whole or in part upon matters occurring on the 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 14 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 (6th Cir. 1981).