Sprouse v. Mitchell

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RUBEN T. SPROUSE, Case No. 1:23-cv-353

Plaintiff, Hopkins, J.

Litkovitz, M.J.

vs.

MIRIA MITCHELL, et al., REPORT AND

Defendants, RECOMMENDATION

Plaintiff, a resident of Ironton, Ohio, has filed a pro se complaint against Detective Jason

Newman, Miria Mitchell, Melissa Coburn, Ricky Rice, Desire Flannery, and Laura Brown.

(Doc. 1-1 at PAGEID 4). In its prior Report and Recommendation, now pending before the

District Judge, the Court recommended dismissal with prejudice of all claims with the exception

of plaintiff’s Fourteenth Amendment due process claims against defendants Newman and

Brown. (Doc. 4 at PAGEID 52).

This matter is now before the Court on defendant Newman’s motion for judgment on the

pleadings (Doc. 17) and defendant Brown’s motion to dismiss (Doc. 18). Plaintiff filed a

document (Doc. 22) that the Court liberally construes as a response to both motions. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Defendant Brown also filed a reply memorandum in support of her motion to dismiss. (Doc. 23).

A. Complaint

The Court summarized plaintiff’s complaint in its prior Report and Recommendation,

which it restates as relevant here. (See Doc. 4 at PAGEID 47-49). On June 11, 2021, defendants

Desiree Flannery and Miria Mitchell of Pitiful Paws Rescue went to plaintiff’s residence with the

intention of purchasing a beagle. (Doc. 1-1 at PAGEID 8).1 These defendants purchased a Rat

1 Plaintiff states that he breeds and raises dogs for sale. (Doc. 1-1 at PAGEID 10).

Terrier from plaintiff, and plaintiff also gave them an older beagle. (Id.). During this exchange,

Ms. Mitchell took pictures with her cell phone of plaintiff’s dogs and pen area, without

plaintiff’s permission, and inspected other parts of his yard. (Id.). Ms. Flannery and Ms.

Mitchell bought a third dog before they left plaintiff’s property. (Id.).

On June 18, 2021, defendant Detective Jason Newman, Humane Officer for the

Lawrence County Sheriff’s Office, and two deputies arrived at plaintiff’s house with a search

warrant. (Id.). Plaintiff alleges that defendant Newman “produced a paper and told me to sign it

or he was going to take me to jail.” (Id.). Plaintiff also alleges:

[Defendant Newman] kept his hand on his firearm the entire time and I signed the

paper not knowing what it stated. I repeatedly stated that I was not giving up my

dogs and was assured my signature was only to have them checked by a vet tech

on my property. Once I signed the paperwork, a crew was called and they began

the removal of my dogs. When I asked what was going on[,] I was told the vet tech

was not available and the dogs would have to be taken to South Point, Ohio[,] to

have them checked and would be returned later in the evening. Pictures were taken

of most of the dogs as they were being removed. One of my dogs was diabetic and

they refused to take it because it had a seizure when it was removed from its cage.

(Doc 1-1 at PAGEID 8). Plaintiff did not receive his dogs back that evening. (Id.). He called

the Lawrence County Sheriff’s Office and learned that the paper he signed was to release his

dogs to the Lawrence County Humane Society. (Id.). Plaintiff states:

My civil rights was [sic] violated an[d] I was not given due process of inspection.

I did not get recovery time before my dogs were removed.

(Id.).

Criminal charges were filed against plaintiff but subsequently dismissed. (Id. at PAGEID

8-9). After the charges were dismissed, only seven of the 67 dogs removed were returned to

plaintiff. (Id. at PAGEID 9). Plaintiff alleges, “I feel that Detective Newman conspired with the

assistant prosecutor to file criminal charges in an attempt to keep my dogs away from me.” (Id.

at PAGEID 8).

Plaintiff further alleges:

[Defendant] Laura Brown, President of the Lawrence County Humane Society, was

aware of all of the prior proceedings. She did not follow through to make sure all

of my dogs were returned. She only issued a statement on Facebook saying anyone

with any of the dogs needed to return them or charges would be filed against anyone

choosing not to return the dogs. The dogs had been fostered out to numerous

facilities and individuals.

(Id. at PAGEID 9).

Plaintiff alleges that his reputation as a trainer and breeder has been tarnished; he

demands the return of all of his dogs; and he seeks damages in excess of $5,000,000.00. (Doc.

1-1 at PAGEID 9-10). Plaintiff alleges violations of his civil rights, including violations under

the Due Process Clause of the Fourteenth Amendment. (Id. at PAGEID 8).

B. Legal standard

A party may move for judgment on the pleadings “[a]fter the pleadings are closed. . . .”

Fed. R. Civ. P. 12(c). While defendant Newman answered the complaint, no other defendant

has. While the Sixth Circuit has not explicitly considered the question, district courts within the

circuit have held that a Rule 12(c) motion is premature until all defendants have answered a

complaint.2 See Dunn-Mason v. JP Morgan Chase Bank Nat. Ass’n, No. 11-cv-13419, 2013 WL

4084676, at *4 (E.D. Mich. Aug. 13, 2013) (collecting cases). Nevertheless, the Court finds that

district courts have discretion to convert a premature Rule 12(c) motion into a Rule 12(b)(6)

motion and rule on it. See Heggem v. Valvoline, LLC, No. 1:23-cv-00584, 2024 WL 895151, at

*3 (N.D. Ohio Mar. 1, 2024) (“[A] prematurely filed Fed. R. Civ. P. 12(c) motion may be treated

as a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) if ‘the issues

2 In addition, “the pleadings are not closed until all defendants have filed an answer, even when one defendant has

filed a motion to dismiss instead of answering.” Wells Fargo Fin. Leasing, Inc. v. Griffin, 970 F. Supp. 2d 700, 705

(W.D. Ky. 2013) (quoting Nationwide Children’s Hosp., Inc. v. D.W. Dickey & Son, Inc. Emp. Health & Welfare

Plan, 2009 WL 5247486, at *1 (S.D. Ohio Dec. 31, 2009) and collecting cases).

raised in the motion were sufficiently raised in the moving defendant’s answer as affirmative

defenses.’”) (quoting Armatas v. Aultman Health Found., No. 5:19-cv-00349, 2019 WL

8754869, at *3 (N.D. Ohio Dec. 19, 2019) (report and recommendation) (quoting Ortiz v.

Holmes, 157 F. Supp. 3d 692 (N.D. Ohio 2016)), adopted, 2020 WL 1650841 (N.D. Ohio Mar.

27, 2020)); Gillespie v. City of Battle Creek, 100 F. Supp. 3d 623, 628 (W.D. Mich. 2015) (“The

Court believes that allowing the Individual Defendants’ motion as a post-answer Rule 12(b)(6)

motion is appropriate in this case. The Individual Defendants raised each of the issues presented

in their motion to dismiss as affirmative defenses in their answer. . . .”); Griffin, 970 F. Supp. 2d

at 705 (“Notwithstanding the fact that the pleadings have not yet closed and, thus, Jones’ Rule

12(c) Motion is untimely, the Court will consider it as a motion to dismiss under Rule

12(b)(6).”). But see Nationwide Children’s Hosp., Inc., 2009 WL 5247486, at *3 (declining to

exercise discretion to convert a premature Rule 12(c) motion into a Rule 12(b)(6) motion).

Upon review of defendant Newman’s answer (Doc. 21), the Court finds that it is

appropriate to convert the Rule 12(c) motion to a Rule 12(b)(6) motion, which is considered

under an identical standard. See D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). 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, 551 U.S. at 93) (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 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)).

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, 429 U.S. at 106).

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).

C. Analysis

1. Official-capacity claims

To the extent plaintiff’s complaint is construed to allege an official-capacity claim against

defendant Newman or Brown, it should be dismissed. To state a 42 U.S.C. § 1983 claim for

relief against an entity, plaintiff must allege facts showing that the misconduct giving rise to his

injuries was the result of a policy, regulation, decision, or custom promulgated by the entity.

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[n entity]’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 “the moving force” behind the alleged constitutional deprivation)

(citing Monell v. New York City Dept. of Soc. Servs., 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). See also Monell, 436 U.S. at 691 (“[A] municipality cannot be held liable

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

The Court finds no such allegations in plaintiff’s complaint, and plaintiff gives the Court

no reason to conclude otherwise in his response (Doc. 22). To the extent construed to allege

official-capacity claims, plaintiff’s complaint should be dismissed.

2. Defendant Newman

Defendant Newman argues that plaintiff’s complaint does not specify whether he asserts

a procedural or substantive due process claim against him. To the extent that plaintiff alleges a

procedural due process claim, defendant Newman argues that plaintiff does not challenge an

established state procedure and, thus, appears to allege a random and unauthorized act.

Defendant Newman argues that such a claim is undercut by the existence of a valid search

warrant. Regardless, defendant Newman argues that any procedural due process claim must fail

because such a claim requires a plaintiff to plead the inadequacy of state remedies for redressing

the wrong. To the extent that plaintiff alleges a substantive due process claim, defendant argues

that it is precluded by plaintiff’s voluntary surrender of his animals, which is in turn

demonstrated by the form signed by plaintiff and attached to defendant Newman’s Answer (Doc.

21-1).3 Finally, defendant Newman argues that he is entitled to qualified immunity.

In plaintiff’s response, he states that the warrant relied upon by defendant Newman was

based on “false information” and is otherwise “outlawed. . . .” (Doc. 22 at PAGEID 160).

3 The Court does not rely on this document for its conclusion.

Plaintiff further states that the form relied upon by defendant Newman regarding the surrender of

his animals was “fake” and he was “force[d]” to sign it based on “threat, fear, intimidation, lies,

deceit, and trickery. . . .” (Id. at PAGEID 160).

To support a procedural due process claim, plaintiff must allege that “(1) he is deprived

(2) of a constitutionally protected interest in life, liberty, or property (3) through state action and

(4) the deprivation occurs without adequate process.” Capen v. Saginaw Cnty., Mich., 103 F.4th

457, 462 (6th Cir. 2024) (citing Daily Servs., LLC v. Valentino, 756 F.3d 893, 904 (6th Cir.

2014)). The Sixth Circuit distinguishes between procedural due process claims challenging

“established state procedure” and those challenging “random and unauthorized acts.” 4 Daily

Servs., LLC, 756 F.3d at 907. Plaintiff’s complaint alleges that defendant Newman took a

random and unauthorized act—forcing him against his will to sign a form surrendering his

dogs—causing the deprivation of property.5 In such cases, a state can satisfy due process by

providing adequate postdeprivation process even if it does not provide predeprivation process.

Daily Servs., LLC, 756 at 904 (citing Parratt v. Taylor, 451 U.S. 527, 543 (1981), overruled on

other grounds, Daniels v. Williams, 474 U.S. 327 (1986)). In such cases, a plaintiff must plead

the inadequacy of state remedies in order to state a § 1983 claim based on procedural due

process:

If satisfactory state procedures are provided in a procedural due process case, then

no constitutional deprivation has occurred despite the injury. [Hudson v. Palmer,

468 U.S. 517, 533 (1984)]; [Vicory v. Walton, 721 F.2d 1062, 1065-66 (6th Cir.

1983)]. . . . Plaintiff may not seek relief under Section 1983 without first pleading

and proving the inadequacy of state or administrative processes and remedies to

4 The Sixth Circuit has acknowledged that not all cases fall neatly within one category or the other. See id. at 907-

08.

5 Plaintiff’s complaint also alleges that defendant Newman knew that the warrant was issued with plaintiff’s son’s

name as opposed to his name. But “[t]he [Fourth Amendment’s] text makes clear that ‘[s]earch warrants are not

directed at persons; they authorize the search of “places” and the seizure of “things,” and as a constitutional matter

they need not even name the person from whom the things will be seized.’” United States v. Church, 823 F.3d 351,

355 (6th Cir. 2016) (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978) (quoting U.S. Const. amend. IV)).

redress her due process violations. [Parratt, 451 U.S. 527] ; Mansfield Apt. Owners

Ass’n v. City of Mansfield, 988 F.2d 1469, 1475 (6th Cir. 1993).

Jefferson v. Jefferson Cnty. Pub. Sch. Sys., 360 F.3d 583, 587-88 (6th Cir. 2004). See also

Wilson v. Beebe, 770 F.2d 578, 585 (6th Cir. 1985) (explaining that the Parratt doctrine applies

to random and unauthorized acts and not established state procedures). Plaintiff’s complaint

alleges that his dogs were “not returned” (Doc. 1-1 at PAGEID 8) but does not plead the

inadequacy of state or administrative remedies available to him. Dismissal is therefore

appropriate to the extent plaintiff’s complaint is construed to allege a procedural due process

claim. See Freeman v. Spoljaric, 667 F. Supp. 3d 636, 650 (S.D. Ohio 2023).

The Court concludes that the same result should apply to the extent it construes the

complaint to allege a substantive due process claim. The Sixth Circuit has held that Parratt’s

requirement of pleading inadequate state or administrative remedies applies to some substantive

due process claims, see Jefferson, 360 F.3d at 590 (citing Beebe, 770 F.2d at 585), but it does not

apply to (1) “claims based on a ‘right, privilege, or immunity secured by the Constitution or

federal laws other than the Due Process Clause of the Fourteenth Amendment simpliciter’” or

(2) acts that “may not take place no matter what procedural protections accompany them.”

Omaha Life Ins. Co. v. Solomon, 960 F.2d 31, 35 (6th Cir. 1992) (quoting Hayes v. Vessey, 777

F.2d 1149, 1152 (6th Cir. 1985)) (former emphasis added). The second category refers to

conduct that “shocks the conscience of the court.” Id.

To the extent plaintiff alleges a substantive due process claim, it is based on the Due

Process Clause of the Fourteenth Amendment itself and not a right separately guaranteed by the

Bill of Rights. The Sixth Circuit does not generally apply the “shock the conscience” test to

cases that do not involve physical abuse. See City of Mansfield, 988 F.2d at 1478 (“[B]ecause

the present case does not concern physical abuse, we are reluctant to apply the ‘shock the

conscience’ standard, Cassady v. Tackett, 938 F.2d 693, 698 (6th Cir. 1991), and decline to do

so.”) (footnote omitted). See also Miller v. City of Columbus, 920 F. Supp. 807, 818-19 (S.D.

Ohio 1996) (“Allowing a substantive due process claim for deprivation of property where an

adequate state remedy exists would effectively eviscerate the holding of Parratt. . . . This Court

believes that interference with a property interest could never rise to [the level of shocking the

conscience].”) (citing Schaper v. City of Huntsville, 813 F.2d 709, 718 (6th Cir. 1987) and

Mansfield, 988 F.2d at 1478) (footnote omitted). As such, the Court finds plaintiff’s failure to

plead the inadequacy of state remedies is also fatal to any alleged substantive due process claim.

Based on the foregoing, the Court should dismiss plaintiff’s Fourteenth Amendment due

process claim against defendant Newman. The Court therefore need not consider defendant

Newman’s qualified immunity argument.

3. Defendant Brown

Defendant Brown asserts several arguments in support of dismissal. She argues that

plaintiff has failed to allege (1) a cognizable constitutional rights violation, (2) facts supporting a

cognizable constitutional rights violation, or (3) that defendant Brown acted “under color of state

law.” Even if plaintiff had, defendant Brown argues that she would be entitled to qualified

immunity or immunity under state law. As noted in defendant Brown’s reply, plaintiff fails to

substantively respond to any of her arguments. Rather, plaintiff primarily appears to contest this

Court’s pending recommendation (see Doc. 4) that his conspiracy claim and claims against

private-party defendants Mitchell and Flannery be dismissed. (See Doc. 22).

Plaintiff’s Fourteenth Amendment due process claim should be dismissed against

defendant Brown because plaintiff fails to allege that she took action that deprived plaintiff of his

property. To prevail on a claim brought under § 1983, a plaintiff must demonstrate “(1) the

deprivation of a right secured by the Constitution or laws of the United States (2) caused by a

person acting under the color of state law.” Jones v. Muskegon Cnty., 625 F.3d 935, 941 (6th

Cir. 2010) (quoting Dominguez v. Corr. Med. Servs., 555 F.3d 543, 549 (6th Cir. 2009)).

Plaintiff’s complaint contains a single paragraph related to defendant Brown. In it, plaintiff

alleges that defendant Brown “was aware of all of the prior proceedings” and “did not follow

through to make sure all of [his] dogs were returned.” (Doc. 1-1 at PAGEID 9). In other words,

plaintiff alleges that defendant Brown failed to act in some way but not that she took any action

depriving plaintiff of any rights.6

“Persons sued in their individual capacities under § 1983 can be held liable based only on

their own unconstitutional behavior.” Heyerman v. Cnty. of Calhoun, 680 F.3d 642, 647 (6th

Cir. 2012). The Fourteenth Amendment violation alleged in plaintiff’s complaint—the

deprivation of plaintiff’s property—is not alleged to have been perpetrated in any way by

defendant Brown. Because plaintiff fails to allege that defendant Brown affirmatively took

action, his complaint fails to state a cognizable § 1983 claim against her. As such, the Court

finds it unnecessary to address Defendant Brown’s other arguments, and she should be dismissed

as a defendant.

IT IS THEREFORE RECOMMENDED THAT:

1. Defendant Newman’s motion for judgment on the pleadings (Doc. 17) be converted

into a motion to dismiss under Ruler 12(b)(6) and GRANTED; and

6 The Court finds no basis to construe plaintiff’s complaint—even afforded a liberal construction—as alleging that

defendant Brown supervised defendant Newman. But if the complaint had alleged a supervisory relationship, the

result is unchanged. Supervisory liability under § 1983 does not attach when it is premised on a mere failure to act;

it “must be based on active unconstitutional behavior.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999)

(citing Leach v. Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989))

2. Defendant Brown’s motion to dismiss (Doc. 18) be GRANTED.

Date; 8/1/2024 Hann K Retheonr-

Karen L. Litkovitz, Magistrate Judg

United States District Court

1]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RUBEN T. SPROUSE, Case No. 1:23-cv-353

Plaintiff, Hopkins, J.

Litkovitz, M.J.

vs.

MIRIA MITCHELL, 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).