The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Matthias Leguire, Case No. 23-cv-01123
Plaintiff,
v. ORDER
City of Findlay, et al.,
Defendants.
This is a pro se civil rights case under 42 U.S.C. § 1983.1
Plaintiff alleges that the City of Findlay, Ohio, its Mayor, City Council members, Police
Department, and certain police officers conspired with a privately-owned company, Dick’s
Towing Service, to violate his civil rights.2
The gravamen of Plaintiff’s claim is that Defendants unlawfully entered his property and
removed an unregistered boat and van that the Plaintiff was storing there. (See, generally, Doc. 5
(Amended Complaint); and see Doc. 41 (Second Amended Complaint)).
The officers did so, allegedly in response to complaints from Plaintiff’s neighbor Christopher
Neely. (Id.). Neely, Plaintiff alleges, offered to purchase part of Plaintiff’s land. After Plaintiff
1 Plaintiff originally filed his complaint pro se. After a brief period of representation, his status has returned to pro se
at the time of this Opinion.
2 Plaintiff’s Second Amended Complaint names the City of Findlay, the Mayor (whom he identifies as Christina
Muryn), the City Council Members (whom he identifies as Grant Russel; Jeff Wobser; Randy Greeno; Jim Neimeyer;
Brian Bauman; Jim Slough; Beth Warnecke; Dennis Hellman; John Harrington; Holly Frishe; and Joshua Palmer),
the City of Findlay Police Department and officers (whom he identifies as Captain Jim Mathias; Officer Joe Smith;
Lt. David Hill; and Doug Marshall). He sues Dick’s Towing Service; Erik Stearns; Christopher Neely; Mike Stone;
Tammy Stone; Sheriff Michael Heldman, and “Does 1-10 yet unknown.” He also sues individuals Donald Rasmussen;
Erik Adkins; and Rob Martin, whose position he fails to specify. These individuals, I will assume, hold some public
office. Therefore, I likewise assume, in arguendo that they satisfy the state actor requirement. (See Doc. 41, PgID.
315–16).
declined two purchase offers, Neely conspired with police and other municipal officials to
“weaponize ordinances” against Plaintiff. (Doc. 5, PgID. 145).
The relations between Neely and the Plaintiff have not been neighborly for some period of
time. They became so because of Neely’s complaints about the unsightliness of the boat and car
on Plaintiff’s property. In addition, Plaintiff alleges that Neely conspired with City officials to
have a right of way vacated between their two properties. (Id. at PgID. 144-46).
Plaintiff alleges that, without previously contacting Plaintiff or securing his permission, Officer
Joe Smith and Dick’s Towing entered Plaintiff’s property. (Id. at PgID. 321). He alleges they used
“stealth tactics” to determine the boat and van were unregistered in violation of Ohio law. (Id. at
PgID. 144-46). This led to a request to Dick’s Towing to remove both the boat and van.
Dick’s Towing has continuously stored both the boat and van since May 30, 2023. (Doc. 5,
PgID. 132). Plaintiff disputes his responsibility for the towing and storage charges. (Id.).
Plaintiff sues the City police officers on a respondeat superior basis by virtue of their
employment. He sues the City and members of the City Council for allegedly conspiring to enforce
certain ordinances to support Neely’s purchase of land that would result in vacation of a right of
way.
Background
On July 25, 2023, rather than file a Federal Rule of Civil Procedure 12(b) motion, all but three
Defendants Answered the First Amended Complaint.3 (See Doc. 18).
In Leguire II, I stated:
3 I granted dismissal to those three defendants. On September 25, 2023, I granted Defendants Michael Heldman and
David Yost’s motions to dismiss. Leguire v. Findlay, No. 23-cv-1123, 2023 WL 6214526 (N.D. Ohio Sept. 25, 2023)
(“Leguire I”) (Doc. 21). On July 3, 2024, I granted Defendant Neely’s motion to dismiss. Leguire v. Findlay, --- F.
Supp. 3d ---, No. 23-cv-1123, 2024 WL 3292571 (N.D. Ohio July 3, 2024) (“Leguire II”) (Doc. 37).
On or before two months from the date of this Order, the Plaintiff shall file an
amended complaint and such supporting memoranda of law in support thereof as
he may deem appropriate. Upon such submission, I shall review the submission and
issue an Order addressing whether any claims against any of the Defendants survive
dismissal[.] Until I notify remaining Defendants otherwise, it is not necessary for
them, once Plaintiff has complied with this Order, to take any action in response to
the Plaintiff’s submission and/or second amended complaint.
Id. at *4.4
On September 30, 2024, Plaintiff filed his Second Amended Complaint. (Doc. 41). Per my
Order, Defendants, correctly, have not responded to the Second Amended Complaint. Id.
Without first seeking leave to do so, Plaintiff identified three additional Defendants in his latest
Complaint: Officer Walker, Mike Stone, and Tammy Stone.5 (Doc. 41, PgID. 316).
Plaintiff also added an additional twelve counts in his Second Amended Complaint, bringing
the total to twenty-two counts. (Id. at PgID. 340–58).
My intention in granting the Plaintiff leave to file an amendment was to give Plaintiff
another—indeed, a final—opportunity to state and clarify the claims that he already alleged; not
to invite the Plaintiff to add more parties and claims.
Because the Plaintiff is pro se, however, I allow him some leeway in his overly broad
interpretation of my Order. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed
pro se is to be liberally construed.”) (internal citations omitted).
Yet, this lenient treatment has its limits. See e.g., Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th
Cir. 1996).
4 In other words, in this Order, I am bypassing reference to our Pro Se Law Clerk, which otherwise would occur under
Northern District of Ohio Local Rules and operations. Given the fact that this is pro se Plaintiff’s third effort to state
one or more viable claims, I find it appropriate to handle this matter myself.
5 He also named Heldman and Neely, whom I have already dismissed with prejudice in Leguire I, supra, and Leguire
II, supra. (Id. at PgID. 315).
As I discuss below, I will dismiss certain portions of Plaintiff’s Second Amended Complaint.
I will order the remaining Defendants to address the remaining aspects of Plaintiff’s Second
Amended Complaint, as described further.
Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), I decide whether the complaint contains
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007). A complaint need only contain a “short and plain statement of the claim
showing that the pleader is entitled to relief,” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009)
(quoting Fed. R. Civ. P. 8(a)(2)). This statement must contain “factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, supra, 550 U.S. at 556).
“[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 (quoting Fed. R. Civ. P. 8(a)(2)). Additionally, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678.
Although pro se complaints are held to “less stringent standards than formal pleadings drafted
by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) I “cannot create a claim which a plaintiff
has not spelled out in his pleading.” Brown v. Matauszak, 415 Fed. App’x 608, 613 (6th Cir. 2011)
(quoting Clark v. Nat’l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975) (internal
quotation marks omitted)).
Discussion
For similar reasons that I dismissed Heldman and Neely in Leguire I and II, supra, I also
dismiss Eric Stearns, Dick’s Towing Service, Mike Stone, and Tammy Stone.
A plaintiff bringing a § 1983 claim must allege: (1) “the deprivation of a right secured by the
Constitution or laws of the United States,” and (2) that “the deprivation was caused by a person
acting under color of state law.” Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003). If a plaintiff
does not allege both elements, then the § 1983 claim fails. Lausin v. Bishko, 727 F. Supp. 2d 610,
625 (N.D. Ohio 2010). (Nugent, J.).
There are limited circumstances where an action by a private actor may be attributable to a
state action. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296
(2001); and see Carl v. Muskegon Cnty., 763 F.3d 592, 595 (6th Cir. 2014). Plaintiff fails to allege
any of these circumstances here.
Plaintiff provides little information about Dick’s Towing. None of the allegations involving
Dick’s even tangentially set forth a plausible claim that it was a state actor. The most that I can
glean is that (apparently in a response to a request by City authorities) Dick’s entered Plaintiff’s
land and towed the unregistered boat and van. This is, simply, not enough to sustain a § 1983 claim
against the private company. Performing work as a contractor of a government entity does not
transform a private entity into a state actor. See Manhattan Community Access Corp. v. Halleck,
587 U.S. 802, 814-15 (2019). Accordingly, Dick’s Towing is entitled to dismissal.
All that Plaintiff alleges about Sterns is that he owns Dick’s Towing. The complaint is devoid
of any details explaining what Sterns allegedly did that converted him from the status of a private
individual operating a private entity into a state actor. Id. Simply owning the towing company that
was involved in the underlying facts of the case does not create a cause of action. Sterns is
dismissed.
All that Plaintiff alleges about the Stones is that they “conspired” with Officer Walker to
deprive Plaintiff of his property. (Doc. 41, PgID. 356–46). Plaintiff also claims that “the actions
taken by Mike and Tammy Stone were ratified by city officials…. Who were complicit in this
conspiracy.” (Id. at PgID. 346). Plaintiff does not explain what those alleged actions were. Nor
does he provide any facts (i.e., the who, what, where, when, why, or how) to explain who the
Stones are, or how or why they allegedly conspired, or what they allegedly conspired about. These
bare-boned allegations are, simply, insufficient under § 1983. The Stones are dismissed.
Conclusion
In conclusion, I will dismiss with prejudice Defendants Erik Sterns, Dick’s Towing, Mike
Stone, and Tammy Stone.
I cannot fairly (or even liberally) construe Plaintiff’s complaint to allege any viable causes of
action against the above-named Defendants under § 1983.
The remaining Defendants shall file a motion under Rule 12(b) addressing whether Plaintiff
has stated any viable claim against them, in either their individual or official capacities. Defendants
must do so no later than thirty (30) days after entry of this Order. Although I have already permitted
Plaintiff multiple opportunities already, I allow Plaintiff leave to file a response, if he chooses, no
later than six weeks after Defendants file their motion. Defendants may reply within fourteen (14)
days of Plaintiff’s opposition brief.
Accordingly, it is hereby,
ORDERED THAT:
1. Heldman’s motion to dismiss (Doc. 44) be, and the same hereby is, dismissed as moot
and Plaintiff’s motion for an extension of time to respond to Heldman’s motion (Doc. 49) be, and
the same hereby is, dismissed as moot.
2. Plaintiff’s motion to withdraw motion for default judgment (Doc. 47) be, and the same
hereby is, granted; Plaintiff’s motion for default judgment (Doc. 45) be, and the same hereby is,
denied as moot;
3. Defendants Erik Sterns, Dick’s Towing, Mike Stone and Tammy Stone be, and the same
hereby are, dismissed with prejudice; and
4. The remaining Defendants shall file a motion under Rule 12(b), as discussed above, no
later than December 12, 2024. Plaintiff may file a response no later than Tuesday, January 23,
2025, which is six weeks after Defendants file their motion. If Plaintiff files an opposition, then
Defendants may reply no later than February 6, 2025.
SO ORDERED.
Date: 11/13/2024
/s/ James G. Carr
Sr. U.S. District Judge