Tyson v. Carter

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

STEVE TYSON, : Case No. 3:22-cv-211

:

Plaintiff, :

: District Judge Walter H. Rice

vs. :

Magistrate Judge Peter B. Silvain, Jr.

:

TROOPER M. CARTER, et al., :

:

Defendants. :

:

REPORT AND RECOMMENDATIONS1

This case is presently before the Court upon Defendant Trooper Mutawakkil Carter’s

Motion to Dismiss (Doc. #28) and Plaintiff Steve Tyson’s Response in Opposition (Doc. #30).

For the reasons that follow, the undersigned RECOMMENDS that Defendant Carter’s Motion be

GRANTED in part and DENIED in part.

I. Procedural History

The claims in this case arise out of a traffic stop occurring on October 31, 2021, in which

Plaintiff alleges, among other things, that Defendant Carter violated his constitutional rights.

Plaintiff initially filed a Complaint detailing these allegations in the Miami County Court of

Common Pleas on June 29, 2022. (Doc. #1-1, PageID #s 5-13). Within a month of initiating the

action, Plaintiff filed his First Amended Complaint, in which he added allegations related to a

second traffic stop that occurred on July 2, 2022. (Doc. #1-2, PageID #s 14-22). The First

Amended Complaint also served to add the State of Ohio and an “Officer Williams” as Defendants.

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

See id. The case was then removed to this Court by Defendant Carter on August 3, 2022. (Doc.

#1, PageID #s 1-3).

In September 2022, Plaintiff filed his Second Amended Complaint. (Doc. #9). In

Plaintiff’s Second Amended Complaint (Doc. #9), Trooper Williams was removed as a defendant

as were the references to the second traffic stop on July 2, 2022. Compare Doc. #9 to Doc. #3.

This amendment also served to join Robert Hagen, who Plaintiff identifies as a security guard

employed at the Flying J. Travel Center Gas Co., as a defendant who conspired with Defendant

Carter to violate Plaintiff’s Constitutional rights. See Doc. #9. Although Plaintiff subsequently

moved to file a third and fourth amended complaint, his motions were denied. (Doc. #s 21-23,

26). Thus, Plaintiff’s Second Amended Complaint is the operative complaint in this case.

On May 8, 2024, United States District Judge Walter H. Rice dismissed Plaintiff’s claims

against Defendants Robert Hagen, Flying J Travel Center Gas Co., and the State of Ohio for failure

to perfect service under Federal Rule of Civil Procedure 4. (Doc. #38).

II. Standard of Review

The Federal Rules of Civil Procedure provide that a pleading must contain “a short and

plain statement of the claim showing that the pleader is entitled to relief....” Fed. R. Civ. P. 8(a)(2).

While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations’ ... it demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Pleadings offering mere “‘labels and conclusions’

or ‘a formulaic recitation of the elements of a cause of action will not do.” Id. (citing Twombly,

550 U.S. at 555, 127 S.Ct. 1955).

A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the

sufficiency of the complaint and permits dismissal for “failure to state a claim upon which relief

can be granted.” In order “[t]o survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556

U.S. at 678, 129 S.Ct. 1937. A claim is plausible where “plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—

but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679, 129 S.Ct. 1937

(alteration in original) (citing Fed. R. Civ. P. 8(a)(2)).

In determining a motion to dismiss, the Court must construe the complaint in the light most

favorable to the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross &

Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). If more than one inference may be drawn from an

allegation, this Court must resolve the conflict in favor of the plaintiff. Mayer v. Mylod, 988 F.2d

635, 638 (6th Cir. 1993). However, “courts ‘are not bound to accept as true a legal conclusion

couched as a factual allegation.’” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v.

Allain, 478 U.S. 265, 286, 106 S.Ct. 2932 (1986)). Further, “[f]actual allegations must be enough

to raise a right to relief above the speculative level.” Id.

While pro se parties must satisfy basic pleading requirements, Wells v. Brown, 891 F.2d

591, 594 (6th Cir. 1989), their pleadings must be liberally construed and are “held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127

S.Ct. 2197 (2007). Nevertheless, “even a pro se complaint ‘must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.’” Ogle v. Columbia Gas

Transmission, LLC, 513 F. App’x 520, 522 (6th Cir. 2013) (citing Iqbal, 556 U.S. at 678, 129 S.Ct.

1937).

Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a party to move to dismiss

for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). Jurisdictional challenges

under that Rule come in two forms, facial and factual. Carrier Corp. v. Outokumpu Oyj, 673 F.3d

430, 440 (6th Cir. 2012). “Under a facial attack, all of the allegations in the complaint must be

taken as true, much as with a Rule 12(b)(6) motion.” Id. However, under a factual attack, “the

court can actually weigh evidence to confirm the existence of the factual predicates for subject-

matter jurisdiction.” Id. (citations omitted).

III. Plaintiff’s Allegations

Plaintiff alleges that on October 31, 2021, Defendant Carter pulled him over based on false

information from Robert Hagen, a security guard employed by Flying J. Travel Center Gas Co.

(Doc. #9, PageID #s 71-73). According to Plaintiff, after Hagen saw Plaintiff kiss an employee

of Flying J. Travel Center, Hagen called Defendant Carter and told him Plaintiff “reeked from

alcohol” and “unlawfully handled his firearm.” Id. at 71-72. Defendant Carter then pulled Plaintiff

over for an alleged lane change violation. Id. at 71. Plaintiff alleges that “there was never a traffic

violation.” Id. at 73. Defendant Carter did not administer a field sobriety test, or he was not

certified to administer such a test. Id. at 72. Plaintiff asserts that Defendant Carter lacked probable

cause to order Plaintiff to exit his vehicle, detain him, interrogate him, search his vehicle, and seize

his property. Id. at 73. Plaintiff was arrested and charged with a “CCW violation.” Id. at 71-72.

After Plaintiff was released, he returned to his vehicle and was allowed to drive away. Id. at 73.

The charges were later dismissed (case no. 2021CRM03391). Id. at 72.

Plaintiff brings several claims against Defendant Carter, including unreasonable search and

seizure in violation of the Fourth Amendment (Counts I and III); First Amendment retaliation

(Count II); Implementing 42 U.S.C. § 14141 (Count IV); conspiracy to interfere with civil rights

under 42 U.S.C. § 1985 (Count V); malicious prosecution (Count VI); Eleventh Amendment

(Count VII); violations of the code of conduct (Count VIII); conspiracy to deprive Plaintiff of legal

and constitutional rights (Count IX); and “Assaultive” (Count X). Id. at 73-78.

IV. Defendant Carter’s Motion to Dismiss & Plaintiff’s Response

Defendant Carter moves the Court to dismiss this case for failure to state a claim upon

which relief can be granted and lack of subject-matter jurisdiction. (Doc. #28) (citing Fed. R. Civ.

P. 12(b)(1) and (6)). Generally, he asserts that Plaintiff’s Constitutional claims fail because his

“Complaint contains too few factual allegations to plausibly support a civil-rights claim against

Trooper Carter.” Id. at 182-83. Specifically, Defendant Carter argues that Plaintiff’s search and

seizure claims and First Amendment retaliation claim fail because the dash-cam video shows that

Defendant Carter had probable cause to stop Plaintiff for the marked lanes violation and probable

cause to arrest Plaintiff after the administration of the field sobriety tests. Id. at 174-77. Further,

Defendant Carter contends that Plaintiff’s § 1985 conspiracy claim fails because he does not claim

any class membership, a necessary element of such claims. Id. at 177-78. Moreover, he asserts

that Plaintiff failed to allege facts in support of all four elements of a claim of malicious

prosecution under the Fourth Amendment. Id. at 179-80. Finally, Defendant Carter argues that

this Court lacks subject-matter jurisdiction over Plaintiff’s state law tort claims. Id. at 180-81.

In his response, Plaintiff argues that there was not a marked lanes violation, and Defendant

Carter arrested him because of what Hagen told him. (Doc. #30, PageID #189). He indicates that

he was able to go back to his car after three and a half hours, but his brother had to pick him up.

Id. Further, Defendant Carter left his truck’s lights on, killing the battery. Id.

V. Discussion

The Court construes Plaintiff’s allegations to raise claims for violations of constitutional

rights under the First and Fourth Amendments and 42 U.S.C. § 1983, as well as state law. Section

1983 prohibits any person “under color of any statute, ordinance, regulation, custom, or usage, of

any State” from depriving a United States citizen “of any rights, privileges, or immunities secured

by the constitution and laws.” 42 U.S.C. § 1983. Section 1983 is a remedial statute which does

not create independent substantive legal rights on its own, but simply provides a vehicle by which

a person may impose civil liability on state actors for violation of rights secured to the individual

by federal law. Albright v. Oliver, 510 U.S. 266, 271 (1994). To prevail on a § 1983 claim, a

plaintiff must demonstrate that: (1) he or she was deprived of a right secured by the Constitution

or laws of the United States; and (2) the deprivation was caused by a person acting under color of

law. Robertson v. Lucas, 753 F. 3d 608, 614 (6th Cir. 2014) (citing Bivens v. Six Unknown Agents

of Federal Bureau of Narcotics, 403 U.S. 388, 392 (1971)). Defendant does not contest that he

was acting under the color of law when he conducted the traffic stop. Therefore, the Court focuses

its analysis on whether Defendant’s actions as described in the Second Amended Complaint can

plausibly amount to a violation of an established constitutional right.

A. Dash-Cam Video2

In his Motion to Dismiss, Defendant Carter asks the Court to consider the dash-cam video

of his stop of Plaintiff. (Doc. #28, PageID #s 173-74). Plaintiff does not object; indeed, he

2 In September 2022, the Court granted Defendant Carter leave to manually file the dash camera audio-visual

recordings of the October 31, 2021 traffic stop in support of his previous motion to dismiss. See Aug. 24, 2022

Notation Order; Sept. 1, 2022 Notice of Manual Filing.

indicates the dash-cam video “may be helpful.” (Doc. #30, PageID #189).

Although a court ruling on a motion to dismiss is ordinarily limited to considering the

pleadings, Electronic. Merch. Sys. LLC v. Gaal, 58 F.4th 877, 883 (6th Cir. 2023), “a court …

‘may consider materials in addition to the complaint if such materials are public records or are

otherwise appropriate for the taking of judicial notice.’” Bailey v. City of Ann Arbor, 860 F.3d

382, 386 (6th Cir. 2017) (quoting New Eng. Health Care Emps. Pension Fund v. Ernst & Young,

LLP, 336 F.3d 495, 501 (6th Cir. 2003)). “However, unless the videotape ‘blatantly contradicts’

the allegations in the complaint, the court must still accept those allegations as true.” Laning v.

Doyle, No. 3:14-cv-24, 2015 WL 710427, at *3 (S.D. Ohio Feb. 18, 2015) (citing Garcia v. Does,

764 F.3d 170, 180 (2d Cir. 2014)); see also Leonard v. Phillips, No. 2:20-CV-613, 2021 WL

12260885, at *3 (S.D. Ohio Feb. 23, 2021) (citing Bailey, 860 F.3d at 386 (a video may be relied

upon when it “utterly discredits” the plaintiff’s version of events and allows the Court to ignore

the “visible fiction” in a complaint); Osberry v. Slusher, 750 F. App’x 385, 390 (6th Cir. 2018)

(“If ‘no reasonable jury could watch the video’ and agree with the plaintiff, the video ‘allows us

to ignore the ‘visible fiction’ in his complaint.’”)). The Ohio Supreme Court has previously held

that a trooper’s dash-cam video is a public record, because “dash-cam recordings ... document

governmental activities, decisions, and operations during a traffic stop and pursuit” by Ohio

Highway Patrol officers.” State ex rel. Cincinnati Enquirer v. Ohio Dep’t of Pub. Safety, 148 Ohio

St.3d 433, 439 (2016) (citation omitted); see Wagner v. City of Canton, Ohio, No. 5:19CV0377,

2020 WL 1514551, at *3 (N.D. Ohio Mar. 30, 2020). Accordingly, the undersigned takes judicial

notice of Defendant Carter’s dash-cam video. See Clark v. Stone, 998 F.3d 287, 298 (6th Cir.

2021) (citing Bailey v. City of Ann Arbor, 860 F.3d 382, 387 (6th Cir. 2017) (“[T]his court may

take judicial notice of public records, and we are not required to accept as true factual allegations

that are contradicted by those records.”).

B. Search and Seizure

Plaintiff brings two claims (Counts I and III) of unreasonable search and seizure under

the Fourth Amendment against Defendant Carter related to the traffic stop on October 31, 2021.

(Doc. #9, PageID #s 73-75). Plaintiff’s claims can be divided into three categories: (1) the initial

stop; (2) Defendant Carter’s actions during the stop; and (3) Plaintiff’s arrest. The undersigned

will address each in turn.

1. Initial Stop (Count I)

The Fourth Amendment to the United States’ Constitution states:

The right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

Stopping a vehicle and detaining its occupants amounts to a seizure under the Fourth

Amendment. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391 (1979). A traffic stop

may be considered reasonable “so long as the officer has probable cause to believe that the motorist

has violated the traffic law.” United States v. Tubbs-Smith, 800 F. App’x 349, 352 (6th Cir. 2020)

(quoting United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008)). Whether an officer has

probable cause to believe that a traffic violation has been committed depends on whether they

“have reasonable grounds for belief supported by more than a mere suspicion.” Tubbs-Smith, 800

F. App’x. at 352 (citing United States v. Jackson, 470 F.3d 299, 306 (6th Cir. 2006)). An officer’s

observation of a traffic violation suffices to provide probable cause to stop a car for “any infraction,

no matter how slight.” See Blair, 524 F.3d at 748-49 (holding that the officer had probable cause

to stop defendant for a tag light violation after being unable to make out the tag because the

operating lamp was not working).

Defendant Carter asserts that Plaintiff’s search and seizure claim related to his traffic stop

fails because the dash-cam video shows that Defendant Carter had probable cause to stop Plaintiff

for the marked lanes violation. (Doc. #28, PageID #s 174-76). A review of the dash-cam video

shows Plaintiff crossing the white line and driving half in the shoulder for approximately ten

seconds, a marked lanes violation.3 Video at 1:14-1:25.

In his Second Amended Complaint, Plaintiff alleges that Defendant Carter and Hagen

“stopped the Plaintiff for … allegedly being intoxicated …” on October 31, 2021. (Doc. #9,

PageID #73). According to Plaintiff, “There was never probable cause for a traffic stop … because

there was never a traffic violation that occurred ….” Id. However, the dash-cam video “blatantly

contradicts” and “utterly discredits” Plaintiff’s allegations that a traffic violation did not occur. As

the dash-cam video shows that Defendant Carter conducted the traffic stop after witnessing

Plaintiff commit a traffic violation, the initial traffic stop does not constitute a violation of the

Fourth Amendment.4

Plaintiff also alleges that Defendant Carter pulled him over based on the information he

received from Hagen, not because of the minor traffic violation. However, when a “traffic stop is

3 Under Ohio law, “[w]henever any roadway has been divided into two or more clearly marked lanes for traffic,” a

vehicle “shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be

moved from such lane or line until the driver has first ascertained that such movement can be made with safety.” Ohio

Rev. Code § 4511.33(A)(1).

4 Notably, in United States v. Freeman, the Sixth Circuit found a police officer’s observation of a single brief incident

of partial weaving by the driver of a motor home did not constitute probable cause for traffic stop based upon a “lane

violation” under a Tennessee law that appears to have been nearly identical to the Ohio law at issue in this case. 209

F.3d 464, 466 (6th Cir. 2000). However, that case is distinguishable from the present case. In Freeman, the violation

was observed for only one-third of a second (an estimated twenty to thirty feet) and involved a motor home rounding

a curve in the road on a windy day. Id. at 467-68. In contrast, the dash-cam video shows that Plaintiff crossed into

the shoulder for approximately ten seconds. Video at 1:14-1:25. Further, Plaintiff was driving a pick-up truck on a

relatively straight road. Id.; see also United States v. Chandler, No. CRIM.A. 10-23, 2010 WL 2870874, at *9 (E.D.

Ky. July 2, 2010), report and recommendation adopted, 2010 WL 2870723 (E.D. Ky. July 20, 2010), aff’d, 437 F.

App’x 420 (6th Cir. 2011) (finding that extent of violation distinguishable from facts in Freeman).

supported by probable cause, an officer’s subjective intent is irrelevant.” United States v. Lott,

954 F.3d 919, 922 (6th Cir. 2020) (citing Whren v. United States, 517 U.S. 806, 813, 116 S.Ct.

1769 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment

analysis.”)); see also United States v. Brooks, 987 F.3d 593, 599 (6th Cir. 2021) (quoting United

States v. Street, 614 F.3d 228, 232 (6th Cir. 2010) (“‘Whren puts an end to inquiries’ like Brook’s

‘about an officer’s state of mind in conducting a traffic stop.’”). Plaintiff’s argument thus fails.

It is therefore RECOMMENDED that Plaintiff’s claim that Defendant Carter unlawfully

conducted a traffic stop be DISMISSED.

2. Defendant Carter’s Actions During the Stop (Count I)

A routine traffic stop is considered similar to a brief investigatory stop, so the analysis for

reasonability resembles the factors developed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968).

See Rodriguez v. United States, 575 U.S. 348, 354, 135 S.Ct. 1609 (2015). A traffic stop can

become unreasonable if the duration extends beyond what is reasonably necessary to effectuate

the purpose of the stop, which in the case of traffic stops means addressing the traffic violation.

Id. Therefore, authority for “the seizure thus ends when tasks tied to the traffic infraction are—or

reasonably should have been—completed.” Id. To complete the purposes of a traffic stop, an

officer may “check[ ] the driver’s license, determin[e] whether there are outstanding warrants

against the driver, [ ] inspect[ ] the automobile’s registration and proof of insurance,” and “order

a car’s occupants to step out of the vehicle.” United States v. Brewer, 858 F. App’x 888, 890 (6th

Cir. 2021) (citations omitted).

Once the purpose of an underlying traffic stop ends, the police must not detain a vehicle or

its occupants absent facts that given rise to a reasonable suspicion of some other violation of law.

Hernandez v. Boles, 949 F.3d 251, 256 (6th Cir. 2020), cert denied, 141 S. Ct. 847 (2020); see

also United States v. Bell, 555 F.3d 535, 539 (6th Cir. 2009) (“To detain the motorist any longer

than is reasonably necessary to issue the traffic citation, however, the officer must have reasonable

suspicion that the individual has engaged in more extensive criminal conduct.”). Reasonable

suspicion requires more than a mere hunch. United States. v. Arvizu, 534 U.S. 266, 273, 122 S.Ct.

744 (2002); see also Navarette v. California, 572 U.S. 393, 397, 134 S.Ct. 1683 (2014). Under

the totality of the circumstances, the defendants needed to have had “a particularized and objective

basis for suspecting legal wrongdoing.” Arizu, 534 U.S. at 273; Navarette, 572 U.S. at 397.

Plaintiff asserts that Defendant Carter lacked probable cause “to order Plaintiff to exit his

vehicle,” to interrogate him, to seize and search Plaintiff’s vehicle, and to detain him. (Doc. #9,

PageID #73). However, Plaintiff does not allege in his Second Amended Complaint that that

Defendant Carter ordered Plaintiff to exit the vehicle, interrogated him, or searched his vehicle,

nor does Plaintiff provide any details regarding these allegations. Although the Court must accept

the factual allegations in the complaint as true when deciding a motion to dismiss, the Court is

“not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan, 478

U.S. at 286. Plaintiff’s statements that Defendant Carter lacked probable cause to order him to

exit his vehicle, interrogate him, search/seize Plaintiff’s vehicle, and detain him constitute legal

conclusions that the Court is not bound to accept as true. Accordingly, Plaintiff failed to plausibly

allege that Defendant Carter violated his Fourth Amendment rights by ordering him to exit his

vehicle, interrogating him, and searching/seizing his vehicle.

Furthermore, Plaintiff alleges that Defendant Carter “lacked probable cause to detain

Plaintiff during the traffic stop, or in the alternative, Defendant [] Carter … [d]etained Plaintiff for

an unreasonable amount of time.” (Doc. #9, PageID #73). However, Plaintiff provides no further

details in support of his allegation that Defendant Carter detained him for an unreasonable amount

of time. Specifically, he does not explain how long Defendant Carter detained him. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice,” to prevent a complaint from being dismissed on grounds that it fails to comport

sufficiently with basic pleading requirements. Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S.

at 555; Howard v. City of Girard, Ohio, 346 F. App’x 49, 51 (6th Cir. 2009). Accordingly, Plaintiff

failed to plausibly allege that Defendant Carter violated his Fourth Amendment rights by detaining

him for an unreasonable amount of time.

It is therefore RECOMMENDED that Plaintiff’s claims regarding Defendant Carter’s

actions during the stop be DISMISSED.

3. Arrest (Count III)

To state a Fourth Amendment claim for wrongful arrest, a plaintiff must prove that the

arresting officer lacked probable cause to complete the arrest. Robertson v. Lucas, 753 F.3d 606,

618 (6th Cir. 2014); Halasah v. City. of Kirtland, Ohio, 574 F. App’x 624, 629 (6th Cir. 2014).

“A police officer has probable cause only when he discovers reasonably reliable information that

the suspect has committed a crime.” Gardenhire v. Schubert, 205 F.3d 303, 318 (6th Cir. 2000).

“But probable cause to detain a motorist for one violation of the law does not ordinarily provide

probable cause to detain the motorist for another violation.” Green v. Throckmorton, 681 F.3d

853, 860 (6th Cir. 2012). Thus, “[o]nce a stop begins, ... detaining the motorist any longer than is

reasonably necessary to issue the traffic citation requires reasonable suspicion that the individual

has engaged in more extensive criminal conduct.” Id. (quoting United States v. Smith, 601 F.3d

530, 542 (6th Cir. 2010)). “The results of a properly administered field sobriety test may serve as

evidence of probable cause to make a drunk-driving arrest.” Bradley v. Reno, 632 F. App’x 807,

810-11 (6th Cir. 2015) (citing State v. Boczar, 113 Ohio St.3d 148, 863 N.E.2d 155, 158 (2007)).

Plaintiff alleges that Defendant Carter unlawfully arrested him. (Doc. #9, PageID #75).

Specifically, Plaintiff alleges that Defendant Carter “illegally and willfully seized Plaintiff as

detailed in this complaint.” (Doc. #9, PageID #75). Earlier in his Complaint, Plaintiff explains,

“In the original stoppage there was never administered a field sobriety test[] on Defendant, the

officer other than DUI had no probable cause or for that matter he was not certified to administer

such a test.”5 Id. at 72. According to Plaintiff, “Defendant officers constructively placed Plaintiff

under arrest after the illegal and false detention…. Defendant officers lacked probable cause to

arrest Plaintiff.” Id. at 75. Additionally, Plaintiff indicates that Defendant did not obtain a warrant

to arrest him. Id. In sum, Plaintiff claims, “The arrest of Plaintiff was wrongful, without probable

cause and deprived Plaintiff of his Fourth Amendment right to be free of unreasonable seizures.”

Id.

As noted above, Defendant Carter moves to dismiss Plaintiff’s claim, asserting that the

dash-cam video shows that he had “reasonable suspicion to administer field sobriety tests and

probable cause to arrest [Plaintiff] for Operating a Vehicle While Impaired.” (Doc. #28, PageID

#176).

It does not appear that Plaintiff alleges that Defendant Carter lacked reasonable suspicion

to conduct a field sobriety test. Instead, he alleges that Defendant Carter did not administer field

sobriety tests or was not certified to administer such tests. (Doc. #9, PageID #72). The dash-cam

video clearly shows that Defendant Carter administered several field sobriety tests. Video at

15:30-24:00. However, Plaintiff does allege that Defendant Carter unlawfully arrested him

without probable cause. (Doc. #9, PageID #75). Moreover, the undersigned liberally construes

Plaintiff’s pro se Second Amended Complaint to allege that he was not intoxicated while driving.

5 Although Plaintiff uses “Defendant,” it appears that he was referring to himself, rather than Defendant Carter.

See, e.g., Doc. #9, ¶¶ 5, 12 (alleging that Hagen “gave false information that [Plaintiff] was

impaired and had been drinking …”; questioning why Plaintiff “was allowed to drive off” after he

was released if he had been intoxicated before his arrest).

Although Defendant’s Motion to Dismiss relies on the dash-cam video to suggest that

Plaintiff failed various portions of the field sobriety test, the video does not “blatantly contradict”

Plaintiff’s allegations that he was not intoxicated. Indeed, “[i]t is not self-evident simply by

watching the video whether Plaintiff passed or failed any of the tests, particularly because there is

no supporting testimony to explain to the Court typical results for sober individuals and intoxicated

individuals.” See Leonard v. Phillips, No. 2:20-CV-613, 2021 WL 12260885, at *5 (S.D. Ohio

Feb. 23, 2021). Furthermore, the dash-cam video does not contradict Plaintiff’s allegation that

Defendant Carter was not certified to administer field sobriety tests.

Accordingly, the undersigned RECOMMENDS that Defendant Carter’s Motion to

Dismiss Plaintiff’s Fourth Amendment claim related to his arrest be DENIED.

C. Retaliation

Defendant Carter asserts that Plaintiff’s First Amendment retaliation claim fails because

the dash-cam video shows that there was probable cause to stop Plaintiff for the marked lanes

violation. (Doc. #28, PageID #176). Further, Defendant Carter argues that he had probable cause

to arrest Plaintiff for Operating a Vehicle While Impaired based on the totality of the

circumstances. Id.

Plaintiff alleges that Defendant Carter and Hagen retaliated against him by making an

“unwarranted stop” and writing “an illegal ticket.” (Doc. #9, PageID #74). Further, Plaintiff

claims that they retaliated by “further detaining” him, using force by cuffing him, and damaging

his vehicle (by leaving the headlights on and running down his battery). Id. Plaintiff indicates

that his “statement asserting his right to be free from unlawful detentions was protected by the

First, Fifth and Fourteenth Amendments.” Id. According to Plaintiff, Defendant Carter’s

“retaliation was unlawful and would chill an ordinary person in the exercise of first amendment

rights to redress government, namely verbally asserting their rights to peace officers.” Id. at 74.

To state a retaliation claim, a plaintiff must allege three elements: (1) that he was engaged

in protected conduct; (2) an adverse action was taken against him that would deter a person of

ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was

motivated at least in part by the plaintiff’s protected conduct. See Thaddeus–X v. Blatter, 175 F.3d

378, 394 (6th Cir. 1999).

With regard to the first element, Plaintiff appears to claim that Defendant Carter retaliated

against him for making a “statement asserting his right to be free from unlawful detentions …”

and “verbally asserting [his] rights ….” (Doc. #9, PageID #74). However, Plaintiff does not

specifically allege that he made any statements regarding his rights to Defendant Carter (or Hagen),

nor does he indicate when the statement was made or to whom. Thus, Plaintiff failed to allege the

first element of a retaliation claim. See Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2))

(“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to

relief.’”).

However, even if Plaintiff’s allegations are construed as meeting the first element, he failed

to allege that Defendant Carter’s adverse actions—stopping his vehicle, writing a ticket, detaining

him, cuffing him, and damaging his vehicle—were motivated by Plaintiff’s protected conduct—

asserting his right to be free from unlawful detention. Notably, to the extent that Plaintiff alleges

that he made a statement to Defendant Carter and Defendant Carter retaliated against him by

pulling him over, Plaintiff’s claim fails because Defendant Carter’s alleged retaliatory action

occurred before Plaintiff spoke to Defendant Carter. Furthermore, given that Plaintiff does not

allege when he made a statement or to whom, the undersigned is unable to determine whether the

other alleged retaliatory actions occurred before or after the alleged protected conduct.

Accordingly, the undersigned RECOMMENDS that Plaintiff’s First Amendment

retaliation claim (Count II) be DISMISSED.

D. Conspiracy under 42 U.S.C. § 1985

Defendant Carter contends that Plaintiff’s conspiracy claim under 42 U.S.C. § 1985 fails

because Plaintiff does not allege that he is either a federal office holder or the victim of class-based

discrimination. (Doc. #28, PageID #177). Although Defendant addresses all three subsections of

§ 1985, Plaintiff indicates that he brings his § 1985 claim under subsection 2: obstructing justice;

intimidating party, witness, or juror. (Doc. #9, PageID #77).

Subsection 2 of 42 U.S.C. § 1985(2) provides as follows:

(2) Obstructing justice; intimidating party, witness, or juror

If two or more persons in any State or Territory conspire to deter, by

force, intimidation, or threat, any party or witness in any court of the

United States from attending such court, or from testifying to any

matter pending therein, freely, fully, and truthfully, or to injure such

party or witness in his person or property on account of his having

so attended or testified, or to influence the verdict, presentment, or

indictment of any grand or petit juror in any such court, or to injure

such juror in his person or property on account of any verdict,

presentment, or indictment lawfully assented to by him, or of his

being or having been such juror; or if two or more persons conspire

for the purpose of impeding, hindering, obstructing, or defeating, in

any manner, the due course of justice in any State or Territory, with

intent to deny to any citizen the equal protection of the laws, or to

injure him or his property for lawfully enforcing, or attempting to

enforce, the right of any person, or class of persons, to the equal

protection of the laws .... the party so injured or deprived may have

an action for the recovery of damages occasioned by such injury or

deprivation, against any one or more of the conspirators.

Section 1985(2) consists of two separate provisions, separated by a semicolon. “The first clause

of § 1985(2) ... forbids a conspiracy to deter a party or witness in a federal court from attending or

testifying in court, punishing parties or witnesses for having attended or testified in federal court,

or influencing or punishing federal jurors.” Warner v. Greenebaum, Doll & McDonald, 104 F.

App’x 493, 497 (6th Cir. 2004). As Plaintiff does not reference federal court, testimony, witnesses,

or jurors, Plaintiff does not state a claim under the first clause of § 1985(2).

The second clause of § 1985(2) “applies to conspiracies to obstruct the course of justice in

state courts.” Bragg v. Madison, 20 F. App’x 278, 285 (6th Cir. 2001). To state a claim under the

second part of § 1985(2), “‘there must be some racial, or perhaps otherwise class-based,

invidiously discriminating animus behind the conspirators’ actions.’” Williams v. St. Joseph

Hosp., 629 F.2d 448, 451 (7th Cir. 1980) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91

S.Ct. 1790 (1971)); see also Kush v. Rutledge, 460 U.S. 719, 726, 103 S.Ct. 1483 (1983). Plaintiff

does not allege that Defendants acted with any discriminatory animus.6 Therefore, Plaintiff does

not assert a valid claim under 42 U.S.C. § 1985(2).

Accordingly, the undersigned RECOMMENDS that Plaintiff’s claim under 42 U.S.C.

1985(2) (Count V) be DISMISSED.

E. Malicious Prosecution

Defendant Carter asserts that Plaintiff failed to state a cognizable claim for malicious

prosecution under the Fourth Amendment. (Doc. #28, PageID #s 178-80).

To state a valid claim for malicious prosecution in violation of the Fourth Amendment, a

plaintiff must allege facts meeting four elements:

6 Plaintiff alleges that Defendant Carter is black and Hagen is white. (Doc. #9, PageID #72). Plaintiff does not

indicate his own race in the Second Amended Complaint, nor does he allege that Defendant Carter acted with

discriminatory animus.

(1) a criminal prosecution was initiated against the plaintiff and the

defendant made, influenced, or participated in the decision to

prosecute; (2) there was no probable cause for the criminal

prosecution; (3) as a consequence of the legal proceeding, the

plaintiff suffered a deprivation of liberty apart from the initial

seizure; and (4) the criminal proceeding was resolved in the

plaintiff’s favor.

Johnson v. Moseley, 790 F.3d 649, 654 (6th Cir. 2015) (quoting Robertson v. Lucas, 753 F.3d 606,

616 (6th Cir. 2014).

“Under the first element, an investigating officer does not escape liability just because

someone else (e.g., the prosecutor) made the actual decision to prosecute, so long as the plaintiff

can show that the officer ‘influenced or participated in the decision to prosecute.’” Tlapanco v.

Elges, 969 F.3d 638, 655 (6th Cir. 2020) (citing Sampson v. Village of Mackinaw City, 685 F.

App’x 407, 417 (6th Cir. 2017). “To be liable for ‘participating’ in the decision to prosecute, the

officer must participate in a way that aids in the decision, as opposed to passively or neutrally

participating.” Sykes v. Anderson, 625 F.3d 294, 309 n. 5 (6th Cir. 2010). However, “[i]t is

absolutely clear … that an officer will not be deemed to have commenced a criminal proceeding

against a person when the claim is predicated on the mere fact that the officer turned over to the

prosecution the officer’s truthful materials.” Id. at 314 (collecting cases); see also Anderson v.

Amawi, No. 1:10CV1737, 2010 WL 5067426, at *5 (N.D. Ohio Dec. 6, 2010) (dismissing where

the plaintiff alleged a police detective “did wrongfully and unlawfully charge plaintiff with

aggravated robbery” because the complaint “include[d] no allegations to illuminate the role [the

detective] played in the process to satisfy the requirement of making, influencing or participating

in the decision to prosecute”); Hollis v. Bullard, No. 10–10729, 2011 WL 5184228, at *5 (E.D.

Mich. Nov. 1, 2011) (providing a police report to the prosecutor and being identified as the

complaining witness was not enough to establish that an officer aided in the decision to prosecute

the plaintiff).

Plaintiff fails to sufficiently assert that Defendant Carter “made, influenced, or participated

in” the decision to prosecute him. Plaintiff alleges that Defendants “‘maliciously’ … continue to

prosecute the Plaintiff by continual stops due to the filing and challenge of the original case in

chief criminal case and used [their] authority today to deter the civil proceeding against them when

the defendants knew that they did not have a case.” (Doc. #9, PageID #77). However, Plaintiff

does not identify any stops other than the one on October 31, 2021. Moreover, there are no

references to any police report, affidavit, or document of any kind prepared by Defendant and

allegedly used in Plaintiff’s prosecution. Indeed, Plaintiff’s Second Amended Complaint never

mentions a prosecutor at all, much less any interaction between the prosecutor and Defendant.

Plaintiff does not allege any facts showing that Defendant Carter influenced or participated in the

decision to prosecute him. Plaintiff’s allegations in support of Defendant Carter’s role in his

prosecution are precisely the sort of “labels and conclusions,” bereft of factual substance, that fall

short of stating a claim under Twombly.

Turning to the third element, a malicious prosecution 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.” Billock v. Kuivila, No.

4:11-cv-02394, 2013 WL 591988, *5 (N.D. Ohio 2013) (citing Sykes, 625 F.3d at 308-09).

Malicious prosecution claims usually involve defendants who have been detained prior to trial. Id.

“An initial arrest and related detention are legally insufficient to satisfy the deprivation of liberty

element of a malicious prosecution claim.” DiPasquale v. Hawkins, No. 3:16-CV-219, 2020 WL

2906433, at *8 (S.D. Ohio June 3, 2020) (citing Howell v. Ohio State Highway Patrol Subdivision,

No. 1:18-CV-510, 2019 WL 6465508, at *7 (S.D. Ohio Dec. 2, 2019)).

Here, Plaintiff does not allege that “as a consequence of a legal proceeding,” he suffered a

“deprivation of liberty,” apart from the initial seizure. Indeed, he says very little about the legal

proceeding—only that he “obtained a ‘favorable termination.’” (Doc. #9, PageID #77).

In sum, Plaintiff has not plausibly stated a claim for malicious prosecution under the Fourth

Amendment because he failed to allege facts which would satisfy the first and third elements.

Accordingly, the undersigned RECOMMENDS that Plaintiff’s Fourth Amendment malicious

prosecution claim (Count VI) be DISMISSED.

F. State Tort Claims

Defendant Carter argues that this Court lacks subject-matter jurisdiction over Plaintiff’s

state-law claims for malicious prosecution7 and “assaultive.”8 (Doc. #28, PageID #s 180-81).

Specifically, Defendant Carter asserts, “The United States Constitution bars federal court

jurisdiction over pendent state law claims against non-consenting states or state officials,

regardless of the remedy sought by a plaintiff.” Id. at 181 (citations omitted). Further, he contends

that “[a]s a state employee, [he] is immune from such claims unless and until the Ohio Court of

Claims determines that he is not entitled to immunity.” Id. at 180.

Suits for monetary damages brought against state employees in their official capacities are

barred by the Eleventh Amendment to the United States Constitution unless the state itself has

consented to be sued. See Brandon v. Holt, 469 U.S. 464, 471-72, 105 S.Ct. 873 (1985) (a suit

against a state officer in his official capacity “is tantamount to a suit against the state itself.”); see

also Papasan, 478 U.S. at 276; Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100,

7 Plaintiff does not specify whether his malicious prosecution claim is founded in federal law or state law. Out of an

abundance of caution, the undersigned has assessed Plaintiff’s claims under both.

8 Plaintiff labels Count 10: “Assaultive … ie, gender, race, ethnicity, or sexual preference) Obstruction of justice 6.

Conspiracy, perjury, official.” (Doc. #9, PageID #78). He incorporates the preceding paragraphs and alleges that

Defendant Carter “falsified that the Plaintiff was drunk then falsified the encounter on 10-31-2021.” Id. Defendant

asserts that Plaintiff’s “assaultive claim arises out of state law.” (Doc. #28, PageID #182) (citing Ohio Rev. Code §

2305.111).

104 S.Ct. 900 (1981). The State of Ohio has not waived its immunity from suit in federal courts.

See Pullen v. Caldwell, No. 3:20-CV-198, 2021 WL 2952776, at *3 (S.D. Ohio July 14, 2021)

(citations omitted). Accordingly, to the extent that Plaintiff brings state-law malicious prosecution

and “assaultive” claims against Defendant Carter in his official capacity, Plaintiff’s claims are

barred by the Eleventh Amendment of the United States Constitution. The undersigned therefore

RECOMMENDS that Plaintiff’s state-law malicious prosecution (Count VI) and “assaultive”

(Count X) claims against Defendant Carter in his official capacity be DISMISSED.

With respect to Plaintiff’s state-law malicious prosecution and “assaultive” claims against

Defendant Carter in his individual capacity, this Court lacks subject matter jurisdiction to hear

those claims. Under Ohio law, state officers and employees are generally immune from suit. See,

e.g., McCormick v. Miami Univ., 693 F.3d 654, 664 (6th Cir. 2012) (interpreting Ohio law);

Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir. 1989) (same); James v. Tunnell, No. 1:09-cv-

00839, 2010 WL 2519654, at *4 (S.D. Ohio June 16, 2010) (same). Ohio Revised Code Sections

9.86 and 2743.02(F) provide for immunity in civil actions for state employees unless the Ohio

Court of Claims determines that the employees are not immune. See Ohio Rev. Code §§ 9.86;

2743.02(F). The Sixth Circuit has construed these provisions together to mean:

Ohio law requires that, as a condition precedent to asserting a cause

of action against a state employee in his individual capacity, the

Court of Claims must first determine that the employee is not

entitled to the immunity provided for in Revised Code section 9.86.

Prior to that condition being satisfied, then, there is no claim under

Ohio law upon which relief may be granted against state employees

in their individual capacities.

Haynes, 887 F.2d at 705. In other words, “state employees may not be sued unless and until it has

been determined by the Court of Claims that they are not entitled to immunity.” Id. at 704.

Here, the Second Amended Complaint contains no allegations that the Ohio Court of

Claims has determined whether Defendant Carter is entitled to statutory immunity. As such, this

Court lacks jurisdiction to hear his state-law malicious prosecution and “assaultive” claims against

Defendant Carter in his individual capacity unless and until an immunity determination has been

made by the Court of Claims. Accordingly, the undersigned RECOMMENDS Plaintiff’s state-

law malicious prosecution and “assaultive” claims against Defendant Carter in his individual

capacity be DISMISSED WITHOUT PREJUDICE.

G. Implementing § 14141

Plaintiff labels Count IV: “Implementing §14141 ‘Pattern or Practice’ Reform: CIVIL NO.

99-5970(MLC) JOINT APPLICATION FOR ENTRY OF CONSENT DECREE[.]” It is not clear

from Plaintiff’s allegations whether he intended to bring this claim against Defendant Carter.

However, Defendant Carter asserts that to the extent Plaintiff does intend to bring this claim against

him, Plaintiff lacks standing to bring a cause of action under former 42 U.S.C. § 14141 (transferred

to 34 U.S.C. § 12601) because it is a civil cause of action that is only available to the Attorney

General of the United States. (Doc. #28, PageID #184) (citing Adams v. United States, No. 07-

809C, 2008 WL 4725452, at *2 (Fed. Cl. July 16, 2008)).

Indeed, 34 U.S.C. § 12601 (formerly cited as 42 U.S.C. § 14141) provides standing to the

United States (but not to an individual) to bring a civil cause of action against a governmental

authority engaging in a pattern or practice that deprives persons of rights, privileges, or immunities

secured or protected by the Constitution. 34 U.S.C. § 12601; see also Daugherty v. USA, No. CV

5:21-015-DCR, 2021 WL 203429, at *2 (E.D. Ky. Jan. 20, 2021). Thus, Plaintiff lacks standing

to assert this claim. The undersigned therefore RECOMMENDS that Plaintiff’s Implementing

§14141 claim (Count VI) be DISMISSED.

H. Constitutional Violations

Finally, Defendant Carter asserts that “Plaintiff’s claims otherwise fail because the

Complaint alleges insufficient facts to support Constitutional violation claims against [him].”

(Doc. #28, PageID #182). Defendant Carter specifically cites to four paragraphs from Plaintiff’s

Second Amended Complaint, all but one of which has been discussed above. Accordingly, the

undersigned will only address the remaining paragraph from Count VIII of Plaintiff’s Second

Amended Complaint.

In Count VIII, which Plaintiff labels “Conspiracy to Deprive Legal and Constitutional

Rights,” Plaintiff alleges that Defendant Carter and Hagen “acted willfully, knowingly and

purposefully and/or with deliberate indifference to deprive Plaintiff of his Constitutional Rights

by taking of his personal and private property a 9-Millimeter hand gun and a revolver then filing

more unauthorized tickets.” (Doc. #9, PageID #78). However, Plaintiff does not provide any

further information regarding the taking of his gun or the filing of more tickets. Plaintiff does not

indicate when the gun was seized or when the other tickets were filed. Indeed, in the only other

mention of a gun, Plaintiff alleges that Hagen “gave false information that [Plaintiff] was impaired

and had been drinking and unlawfully handled his firearm.” Id. at 72. Additionally, although it is

not clear if Plaintiff is referring to a gun, he does allege that “all property had been returned to the

Plaintiff.” Id.

“[I]t is ‘well settled’ that civil rights claims ‘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 under § 1983.’” Briscoe v. Jackson, 285 F. App’x 205, 208 (6th Cir. 2008) (quoting

Fieger v. Cox, 524 F.3d 770, 776 (6th Cir. 2008)). Plaintiff’s conclusory allegations regarding

Defendant Carter and Hagen taking his gun and filing more tickets lack any factual basis to support

a constitutional violation under § 1983. Accordingly, the undersigned RECOMMENDS that

Plaintiff’s Conspiracy to Deprive Legal and Constitutional Rights claim (Count IX) be

DISMISSED.

IT IS THEREFORE RECOMMENDED THAT:

1. Defendant Trooper Mutawakkil Carter’s Motion to Dismiss (Doc. #28) be

GRANTED in part and DENIED in part;

2. Plaintiff’s Fourth Amendment unreasonable search and seizure claims

(Count I), First Amendment retaliation claim (Count II), Implementing

§14141 claim (Count IV), claim under 42 U.S.C. § 1985(2) (Count V),

Conspiracy to Deprive Legal and Constitutional Rights claim (Count IX),

and state-law malicious prosecution (Count VI) and “assaultive” (Count X)

claims against Defendant Carter in his official capacity be DISMISSED

WITH PREJUDICE; and

3. Plaintiff’s state-law malicious prosecution (Count VI) and “assaultive”

(Count X) claims against Defendant Carter in his individual capacity be

DISMISSED WITHOUT PREJUDICE to renewal should the Ohio Court

of Claims determine that Defendant Carter is not entitled to immunity under

O.R.C. § 9.86.

July 19, 2024 s/Peter B. Silvain, Jr.

Peter B. Silvain, Jr.

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within FOURTEEN days after being served with

this Report and Recommendations. 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 of record at

an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless

the assigned District Judge otherwise directs. A party may respond to another party’s objections

within FOURTEEN days after being served with a copy thereof.

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.

1981).