# Wolfe v. Hocking County Sheriff's Department

> District Court, S.D. Ohio · November 18, 2024

URL: https://www.frixlaw.com/law-library/cases/10743570

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** November 18, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10743570

## How later opinions describe it (automated extraction)

- finding no Second Amendment violation and noting that, although the defendants seized one of plaintiff’s firearms, they “did not prohibit [him] from retaining or acquiring other firearms”
- discussing a plaintiff’s burden on qualified immunity at the pleading stage
- finding social workers and case workers entitled to qualified immunity where they entered a home to investigate a referral to children’s services because precedent did not clearly establish that the Fourth Amendment applied to them

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT L. WOLFE, : Case No. 2:24-cv-535
:
Plaintiff, :
: District Judge Algenon L. Marbley
vs. :
Magistrate Judge Kimberly A. Jolson

HOCKING COUNTY SHERIFF’S
DEPARTMENT, et al.,

Defendants.

ORDER AND REPORT AND RECOMMENDATION
Before the Court are Defendants’ Motions for Judgment on the Pleadings (Docs. 25, 31).
The Undersigned RECOMMENDS that the Motions (Docs. 25, 31) be GRANTED in part and
DENIED in part. Other parts are HELD IN ABEYANCE. As for Defendants’ Motion to Stay
Discovery and Dispositive Motion Deadlines (Doc. 37), it is GRANTED in part and DENIED
in part.
I. BACKGROUND
Plaintiff, who proceeds pro se, sues Defendants under 42 U.S.C. § 1983 for alleged
violations of his constitutional rights. (Doc. 11 at 4 (allowing Plaintiff to proceed on certain claims
and recommending others be dismissed)). Plaintiff lives in Hocking County, Ohio. On February
22, 2023, the Athens County Court of Common Pleas issued a civil protection order (“CPO”) that
forbade Plaintiff from having contact with Hocking County detective J. Thomas McKnight. (Doc.
29 at 6–8). The CPO also contained the following language:
[Plaintiff] shall turn over all deadly weapons owned by [Plaintiff] or in [Plaintiff]’s
possession to the law enforcement agency that serves [Plaintiff] with this Order no
later than as follows: Date of Full Hearing [on February 28, 2023] or At the time of
service of the civil stalking protection order by the Sheriff’s Office.

(Doc. 29 at 8–9, 10).
The next day, Defendants, former and current deputies with the Hocking County Sheriff’s
Department, came to Plaintiff’s home to serve the CPO. (Doc. 12 at 4). Defendants encountered
him on his porch. (Doc. 12 at 4). According to Plaintiff, after Defendants served him with the
CPO, Defendant Moritz “lied” to him and said they must immediately take all of Plaintiff’s
firearms. (Id.). Then, Defendant Moritz assaulted him, causing lasting injuries. (Id. at 5). After
that, Defendants Wilderman, Arnett, Johnson, and Moritz entered Plaintiff’s home “without
warrant and without permission,” searched his home, and seized his firearms. (Id. at 4, 7). Once
the search and seizure ended, Plaintiff says Defendant Johnson filed a “false charge of Obstructing
Official Business” against Plaintiff, which was “dismissed due to lack of evidence.” (Id. at 5).
Plaintiff also accuses Defendant Moritz of unconstitutionally arresting him for assault. (Doc. 12
at 4).
For their part, Defendants claim that Defendant “Moritz explained the [CPO] required
Plaintiff to not possess any firearms, and if he possessed any firearms[,] they would have to be
turned in.” (Id.). But Plaintiff declared he would not comply with the CPO and turned to enter
his home. (Id. at 2–3). Concerned about “their safety,” Defendants engaged in a “physical
encounter” with Plaintiff. (Id. at 3). After that, they say Plaintiff consented to the search for and
seizure of his firearms. (Id.).
On June 20, 2024, Defendants Johnson, Wilderman, and Arnett filed a motion for judgment
on the pleadings. (Doc. 25). On July 23, Defendant Moritz sought similar relief. (Doc. 31). Then,
on October 30, 2024, Defendants jointly moved to stay the case until the Court resolves the
dispositive motions. (Doc. 37). The motions are ripe for consideration. (Docs. 25, 29, 30, 31, 33,
35, 37).
I. STANDARD
The Federal Rules of Civil Procedure provide that, “after the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ.
P. 12(c). “Judgment may be granted under Rule 12(c) where the moving parties clearly establish
that no material issue of fact remains to be resolved and that they are entitled to judgment as a
matter of law.” Williamson v. Recovery Ltd. P’ship, No. 2:06-cv-292, 2010 WL 3769136, at *2
(S.D. Ohio Sept. 24, 2010) (citations omitted). In examining a motion for judgment on the
pleadings under Rule 12(c), the Court uses the same standard of review applied to a Rule 12(b)(6)
motion to dismiss for failure to state a claim. Mixon v. State of Ohio, 193 F.3d 389, 399–400 (6th
Cir. 1999). As such, the Court “must construe the complaint in a light most favorable to plaintiffs,
accept all well-pled factual allegations as true, and determine whether plaintiffs undoubtedly can
prove no set of facts in support of those allegations that would entitle them to relief.” Bishop v.

Lucent Tech., Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citing Harbin-Bey v. Rutter, 420 F.3d 571,
575 (6th Cir. 2005)). To survive a motion for judgment on the pleadings, the “complaint must
contain either direct or inferential allegations respecting all material elements to sustain a recovery
under some viable legal theory.” Bishop, 520 F.3d at 519 (internal quotation marks omitted). In
short, a complaint that consists of “labels and conclusions” or “a formulaic recitation of the
elements of a cause of action” is not enough. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007).
II. DISCUSSION
At the outset, the parties ask the Court to consider a host of evidence, including a copy of
the CPO served on Plaintiff on February 23, 2023; a police report attached to Defendants
Wilderman’s, Arnett’s, and Johnson’s answer; and various pieces of evidence on a thumb drive

submitted by Plaintiff. (See Doc. 29 at 6–10; Doc. 30 at 1–2 n.1; Doc. 31 at 2 (citing Doc. 29 at
6); Doc. 18-3 (police report); Doc. 33 at 5–6 (explaining evidence on a thumb drive sent to the
Court)). But generally, on a Rule 12 motion, the Court’s view is focused on the pleadings. See
Bates v. Green Farms Condo. Ass’n, 958 F.3d 470, 483 (6th Cir. 2020) (“[A] court evaluating a
motion for judgment on the pleadings (or a motion to dismiss) must focus only on the allegations
in the pleadings.”). And the Court’s ability to go beyond the pleadings is limited to “exhibits
attached to the complaint, public records, items appearing in the record of a case, and exhibits
attached to defendant’s motion to dismiss, so long as they are referred to in the complaint and are
central to the claims contained therein.’” Desai v. Geico Casualty Co., 541 F.Supp.3d 817, 822
(S.D. Ohio 2021) (quoting DeShetler v. FCA US LLC, No. 3:18-cv-78, 2018 WL 6257377, at *4

(N.D. Ohio Nov. 30, 2018)).
At this stage, the only additional evidence the Court may consider is the CPO. Ward v.
Stucke, 395 F.Supp.3d 940, 944 (S.D. Ohio 2019) (stating courts may consider matters of public
record and orders on a Rule 12(c) motion); Desai, 541 F. Supp.3d at 822 (same). The rest must
wait until a later stage of this case. For example, the police report attached to Defendants
Wilderman, Arnett, and Johnson’s Answer is not the kind of “written instrument” allowed under
Federal Rule of Civil Procedure 10(c). See Kinney v. Mohr, No. 2:13-cv-1229, 2017 WL 1395623,
at *2 (S.D. Ohio Apr. 19, 2017) (noting that “notes from witnesses” are not written instruments
and that generally only “documents evidencing legal right[s] or duties” qualify); Knight v. Kitchen,
No. 2:19-cv-4166, 2020 WL 5640442, at *4 (S.D. Ohio Sept. 22, 2020) (“[F]or the purpose of
ruling on a Rule 12 motion . . . police incident reports are not ‘public records.’”). As for Plaintiff’s
evidence, none of it was discussed in-depth in his Amended Complaint. See, e.g., Bradley v.
Jefferson Cnty. Pub. Sch., No. 3:20-cv-450, 2022 WL 1184022, at *4 (W.D. Ky. Apr. 19, 2022)

(excluding exhibits attached to the complaint because they were not referenced in the complaint
or central to the claims). And although Defendant Moritz urges the Court to consider the body
camera footage submitted by Plaintiff, (Doc. 35 at 3–4, 8, 9), courts only examine such footage on
a Rule 12 motion if “the videos . . . blatantly contradict or utterly discredit the plaintiff’s version
of events.” Saalim v. Walmart, Inc., 97 F.4th 995, 1002 (6th Cir. 2004) (internal quotation and
quotation marks omitted). That is not the case here.
In sum, the Undersigned will consider the CPO but declines to consider the other materials.
With that, the Court turns to the substance of Defendants’ Motions.
A. Claims Against Defendants in Their Official Capacities
To begin, Defendants Wilderman, Arnett, and Johnson move for judgment on any claims

brought against them in their official capacities as employees of the Hocking County Sheriff’s
Department. (Doc. 25 at 5–7). Briefly, in his Amended Complaint, Plaintiff sues all Defendants
in their individual and official capacities. (Doc. 3 at 2–3). At the outset of this case, Plaintiff also
sued the Hocking County Sheriff’s Department. (Id. at 1). After screening that Complaint, the
Undersigned recommended dismissing the Sheriff’s Department because Plaintiff failed “to allege
any facts showing that any named Defendant acted pursuant to a particular policy or custom of
Hocking County in allegedly violating his civil rights.” (Id. at 6). Plaintiff filed an objection to
that recommendation, which remains pending before the District Judge. (Doc. 7 (arguing the
Sheriff’s Department should be liable for the actions of its employees due to liability insurance)).
Little has changed since the Undersigned’s prior recommendation. Importantly, “[a] suit
against an individual in his official capacity is the equivalent of a suit against the governmental
agency.” Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citing Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 68 (1989)). For Plaintiff’s official capacity claims to survive, he must

plead “sufficient facts to establish that the alleged constitutional violations happened because of
the execution of the County’s policy.” Graham ex rel. Est. of Graham v. Cnty. of Washtenaw, 358
F.3d 377, 383 (6th Cir. 2004) (internal quotation and quotation marks omitted). Plaintiff identifies
no county policy under which Defendants operated when they served him with the CPO. (See
Doc. 12). Nor does he allege a “causal link” between a policy or practice and the alleged violations
of his constitutional rights. (Id.); see Graham ex rel. Est. of Graham, 358 F.3d at 383. Without
more, Plaintiff cannot make out a claim against Defendants in their official capacities. See, e.g.,
Sherick v. Champaign Cnty., No. 3:12-cv-219, 2012 WL 6738671, at *2 (S.D. Ohio Dec. 31, 2012)
(“[S]uing a county employee in his official capacity is the same as suing the county directly and
both require that the plaintiff identify a policy or custom that caused the plaintiff’s injury.”);

Aladimi v. Hamilton Cnty. Just. Ctr., No. 1:09-cv-398, 2012 WL 292587, at *10 (S.D. Ohio Feb.
1, 2012) (dismissing official capacity claims against county officials for failing to identify a policy
or custom that motivated the defendants’ conduct), report and recommendation adopted, No. 1:09-
cv-398, 2012 WL 529585 (S.D. Ohio Feb. 17, 2012).
Therefore, the Undersigned RECOMMENDS GRANTING Defendants Wilderman’s,
Arnett’s, and Johnson’s Motion for any claims brought against them in their official capacities.
The Court now turns to Plaintiff’s claims against Defendants in their individual capacities.
B. Fourth Amendment Claims
Defendants challenge numerous claims brought against them under the Fourth
Amendment. The Undersigned addresses each in turn.
1. Search of Plaintiff’s Home and Seizure of his Firearms

Plaintiff alleges that Defendants violated his Fourth Amendment right against unreasonable
searches and seizures when they entered his home, searched it, and seized his firearms. (Doc. 12
at 4, 7). Defendants respond that they are entitled to qualified immunity. (Doc. 25 at 12–14; Doc.
30 at 1–2; Doc. 31 at 6–8; Doc. 35 at 4–6).
Qualified immunity protects law enforcement officers from civil liability unless (1) the
officials violated a statutory or constitutional right, and (2) that right was clearly established at the
time of the challenged conduct. Dist. of Columbia v. Wesby, 583 U.S. 48, 62–63 (2018). This
second prong gives officers great leeway. Indeed, qualified immunity “applies unless it is obvious
that no reasonably competent official would have concluded that the actions taken were unlawful.”
Chappell v. City of Cleveland, 585 F.3d 901, 907 (6th Cir. 2009); see also Saucier v. Katz, 533

U.S. 194, 202 (2001). To that end, specificity is essential; “[t]he dispositive question is whether
the violative nature of particular conduct is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12
(2015) (internal quotation omitted) (emphasis in original). Further, even if officers make “a
mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact,” qualified
immunity protects them. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation
omitted). Said simply, “[t]his demanding standard protects ‘all but the plainly incompetent or
those who knowingly violate the law.’” Wesby, 583 U.S. at 63 (quoting Malley v. Briggs, 475 U.S.
335, 431 (1986)).
Beginning with the constitutional right at issue here, the Fourth Amendment protects the
“right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV. And “[i]t is a basic principle of Fourth
Amendment law that searches and seizures inside a home without a warrant are presumptively

unreasonable.” Payton v. New York, 445 U.S. 573, 586 (1980). But that is just a presumption.
Put plainly, “the Fourth Amendment does not prohibit all unwelcome intrusions on private
property[,] only unreasonable ones.” Caniglia v. Strom, 593 U.S. 194, 198 (2021) (internal
quotation and quotation marks omitted).
For this claim, the parties’ arguments come down to the CPO’s language. Plaintiff says
that the CPO did not authorize Defendants to enter his home or seize his firearms because it gave
him the choice to turn in his firearms at the February 28 hearing. (Doc. 12 at 4). By ignoring that
choice, Defendants violated his Fourth Amendment right against warrantless searches and seizures
in his home. (Id. at 4, 7). In contrast, Defendants say the CPO prohibited Plaintiff from possessing
firearms as soon as it went into effect. (Doc. 30 at 2; Doc. 31 at 11–12). As a result, Defendants

argue it was reasonable for them to interpret the CPO as giving them the authority to search for
and seize Plaintiff’s weapons when they served the CPO on February 23. (Doc. 31 at 11–12; Doc.
30 at 1 n.1).
After reviewing the CPO, the Court finds Defendants’ take is reasonable. On its face, the
language of the CPO can be read different ways. On the one hand, it seemingly gives Plaintiff
discretion as to when he could forfeit his firearms. For example, the CPO says Plaintiff “shall turn
over all deadly weapons . . . no later than Date of Full Hearing or At the time of service of the civil
stalking protection order by the Sheriff’s Office.” (Doc. 29 at 8–9 (emphasis added)). On the
other hand, the CPO provides that as of February 22, Plaintiff was not permitted to possess
firearms. (Id. at 8). And by stating that Plaintiff “shall turn over all deadly weapons . . . no later
than . . . the time of service of the [CPO] by the Sheriff’s Office,” the CPO makes uncertain
whether Plaintiff could possess firearms after service of the CPO. (Id. at 8–9 (emphasis added)).
When read together, these provisions can be interpreted as (1) prohibiting Plaintiff from having

firearms as of February 22 and, consequently, (2) authorizing Defendants to seize any in his
possession at the time of service. In the end, that is precisely what Defendants did. After serving
the CPO, they entered and searched Plaintiff’s home for the limited purpose of seizing any firearms
he possessed.
Still, Plaintiff argues that the CPO is not a warrant, so Defendants were not entitled to
search his home or seize property under it. (Doc. 33 at 4). But the CPO shares some similarities
with a warrant. For example, the CPO was signed by an Athens County judge, noted that Plaintiff
had firearms he was no longer allowed to possess as of February 22, and arguably allowed
Defendants to take possession of the firearms “[a]t the time of service.” (Doc. 29 at 6–9). And in
similar situations where officers searched a home and seized property under a court order—instead

of a warrant—courts have held that the officers’ actions were not a violation of clearly established
law. See Orr v. Rogers, No. 21-10397, 2021 WL 4075740 (11th Cir. Sept. 8, 2021) (affirming a
grant of qualified immunity on the clearly established prong where officers searched the plaintiff’s
home and seized property listed in a divorce order); Bates v. Harvey, 518 F.3d 1233, 1244–49
(11th Cir. 2008) (finding a Fourth Amendment violation where officers entered a woman’s home
to search for her son’s friend pursuant to a civil commitment order, but concluding the right was
not clearly established because a reasonable officer could have believed exigent circumstances
justified the entry and search); Andrews v. Hickman Cnty., 700 F.3d 845, 860–64 (6th Cir. 2012)
(finding social workers and case workers entitled to qualified immunity where they entered a home
to investigate a referral to children’s services because precedent did not clearly establish that the
Fourth Amendment applied to them).
This Court joins these courts and decides the same. After all, qualified immunity protects
all but the “plainly incompetent” or those who “knowingly violate the law.” Wesby, 583 U.S. at

63. So here, the deciding question is whether “every officer in [Defendants’] position[s], measured
objectively,” would have read the CPO as prohibiting them from searching Plaintiff’s home and
seizing his firearms. Bills v. Aseltine, 52 F.3d 596, 603 (6th Cir. 1995). Given the CPO’s
ambiguous language and Defendants’ reasonable interpretation of its provisions, the Court cannot
answer that question with a yes. See, e.g., Armstrong v. City of Melvindale, 432 F.3d 695, 700–01
(6th Cir. 2006) (“[I]f there can be reasonable disagreement, then the right cannot be considered
‘clearly established.’”); Lamar v. Boles, 714 F.Supp.3d 987, 1006–08 (M.D. Tenn. Jan. 31, 2024)
(granting qualified immunity where the defendants’ interpretation of a statement in a search
warrant affidavit and their reading of relevant regulations were not objectively unreasonable). As
a result, Defendants are entitled to qualified immunity, and their Motions should be granted for

Plaintiff’s search-and-seizure claim.
2. Malicious Prosecution and False Arrest Claims
Next, in his Amended Complaint, Plaintiff says that Defendant Johnson filed an
“intentional false report/charge” of obstructing official business against him that was later
dismissed by the Hocking County Municipal Court for lack of evidence. (Doc. 12 at 3, 4).
Defendants Wilderman, Arnett, and Johnson interpret those allegations as pleading a malicious
prosecution claim under Section 1983 and move to dismiss the claim. (Doc. 25 at 9–10).
The Sixth Circuit recognizes a claim of malicious prosecution under the Fourth
Amendment, “which encompasses wrongful investigation, prosecution, conviction, and
incarceration.” Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010). Ultimately, to prevail on
such a claim, Plaintiff must prove that “(1) the defendant made, influenced, or participated in the
decision to prosecute the plaintiff; (2) there was no probable cause for the criminal prosecution;
(3) as a consequence of the legal proceedings, [Plaintiff] suffered a deprivation of liberty apart

from the initial arrest; and (4) the criminal proceeding was resolved in [Plaintiff’s] favor.” Webb
v. U.S., 789 F.3d 647, 659 (6th Cir. 2015) (citing Sykes, 625 F.3d at 308). Defendants challenge
the third element and say Plaintiff fails to allege “a deprivation of liberty.” (Doc. 25 at 9–10).
The Undersigned agrees. At this stage, Plaintiff must allege facts allowing this Court to
infer he suffered a deprivation of liberty “apart from the initial seizure.” Thornton v. City of
Columbus, 171 F.Supp.3d 702, 710 (S.D. Ohio 2016) (quoting Sykes, 625 F.3d at 308–09). “That
deprivation need not be imprisonment, and the law deems a person ‘continued to be seized for
Fourth Amendment purposes when their freedom of action is restrained due to the pending
criminal proceedings (e.g, restrictions on travel, and requirements to appear).” Id. (internal
quotation and quotation marks omitted). But in his Amended Complaint, Plaintiff notes only his

initial arrest. (Doc. 12 at 3–4). Because a malicious prosecution claim requires more, this claim
fails. See Dillon v. Hamlin, 718 F.Supp.3d 733, 744–45 (S.D. Ohio 2024) (dismissing a malicious
prosecution claim where the plaintiff failed to include her pretrial release program in her
complaint); Ghaster v. City of Rocky River, 913 F.Supp.2d 443, 455–56 (N.D. Ohio Sept. 26, 2012)
(adopting a recommendation to dismiss a malicious prosecution claim where plaintiffs generally
asserted they “suffered a loss of liberty” but provided no specifics).
But Defendants read Plaintiff’s challenges to his arrest too narrowly. His allegations point
to another Fourth Amendment claim—one for false arrest. (See Doc. 29 at 2 (arguing that a false
arrest is an exception to qualified immunity), 3 (noting a potential charge in this matter is “false
arrest”); Doc. 33 at 3 (stating he was “falsely arrested” by Defendant Moritz)).
“It is well established that any arrest without probable cause violates the Fourth
Amendment.” Thacker v. City of Columbus, 328 F.3d 244, 255 (6th Cir. 2003). “For a police

officer to have probable cause for an arrest, there must be ‘facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of reasonable caution,
in believing, in the circumstances shown, that the suspect has committed, is committing or is about
to commit an offense.’” Crockett v. Cumberland Coll., 316 F.3d 571, 580 (6th Cir. 2003) (quoting
Michigan v. DeFillippo, 443 U.S. 31, 37 (1979)). Whether probable cause exists is a question for
a jury, “unless there is only one reasonable” and possible determination. Thacker, 328 F.3d at 255.
Importantly, Defendants could lawfully arrest Plaintiff “so long as there [was] probable cause to
arrest [him] for some crime, even if the crime for which there [was] probable cause [was] different
from the stated crime of arrest.” D.D. v. Scheeler, 645 F. App’x 418, 424 (6th Cir. 2016). For this
claim to proceed, Plaintiff must plausibly allege facts showing that his arrest was “unsupported by

probable cause.” Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir. 2015).
Plaintiff’s allegations are light. (See Doc. 12 at 4, 7). First, he states that Defendant
Johnson intentionally and falsely charged Plaintiff with obstructing official business. (Id. at 3–4).
This charge was eventually “dismissed due to lack of evidence” in the Hocking County Municipal
Court. (Id.). Second, Plaintiff says that Defendant Moritz falsely arrested him for assault and
detained him on his porch. (Id. at 4). Lastly, Plaintiff notes that Defendants came to his home
without a warrant. (Id.).
In their Motions, Defendants Moritz and Johnson argue that Plaintiff has not pled
“sufficient factual allegations” for this claim to survive. (Doc. 31 at 11; see also Doc. 25 at 8 n.2
(asserting the Amended Complaint does not “clearly set forth” Fourth Amendment claims)). Once
more, the Court agrees. To start, Plaintiff’s allegations are wholly conclusory. See Dillon, 718
F.Supp.3d at 738 (stating that “conclusory allegations or legal conclusions masquerading as factual
allegations” cannot withstand a Rule 12 motion). While Plaintiff asserts Defendants Moritz and

Johnson falsely arrested him and intentionally mischarged him, he provides no additional
information about his or Defendants’ actions prior to and during his arrest. (See Doc. 12 at 3–4);
Turner v. Fallen, No. 92-cv-3222, 1993 WL 15647, at *6 (N.D. Ill. Jan. 22, 1993) (finding a Fourth
Amendment wrongful arrest claim insufficiently pled where it rested solely on allegations that “the
police officers had no probable cause” and that “the charges were later dropped”); Cook v. Gov’t
of Columbus, No. 2:18-cv-354, 2019 WL 2124472, at *3 (S.D. Ohio May 15, 2019) (dismissing a
wrongful arrest claim where the plaintiff said only that an officer “wrongfully arrested her”); cf.
Compton v. Louisville Metro. Gov’t, No. 3:19-cv-348, 2021 WL 12307481, at *3 (W.D. Ky. July
16, 2021) (allowing a wrongful arrest claim to proceed where the plaintiff alleged “he was arrested
and charged with ‘obstructing governmental operations’ . . . even though ‘at no time did he

obstruct, impair or hinder the performance of a governmental function’” and where he provided
facts about the incident); Estep v. Combs, 366 F.Supp.3d 863, 872–73 (E.D. Ky. 2018) (denying a
motion to dismiss a false arrest claim where the plaintiff alleged “he was not engaged in any illegal
activity when” arrested, “that he did not resist,” and that there was no probable cause to justify the
arrest).
What’s more, the fact that Plaintiff’s charge was eventually dismissed does not save his
claim because “an arrest grounded in probable cause does not become invalid simply because
charges are later dropped[.]” Manley v. Paramount’s Kings Island, 299 F. App’x 524, 530 (6th
Cir. 2008). In short, Plaintiff must do more to sufficiently plead that Defendants lacked probable
cause to arrest him.
Perhaps recognizing these pleading deficiencies, Plaintiff sent additional evidence with his
response to Defendant Moritz’s Motion. (Doc. 33 at 5–6 (stating he should not have used a “short

form” when filing this action and should have submitted evidence with his complaint)). These
materials, according to Plaintiff, contain “proof” that supports his unconstitutional arrest claim.
(Id. at 6). Throughout the briefing, Plaintiff also provides more details on Defendants’ conduct.
(Id. at 3, 4 (discussing actions Defendants Johnson and Moritz took)). Even so, these allegations
were not included in Plaintiff’s Amended Complaint. See Bates, 958 F.3d at 483–84 (noting that
plaintiffs cannot amend their complaints in opposition briefs and must file a motion to amend).
Accordingly, the Court cannot consider the new allegations here.
Still, the Court recognizes that Plaintiff is proceeding in this action without the assistance
of counsel. As such, the Court GRANTS Plaintiff leave to amend his complaint for his false arrest
claim. Plaintiff is ORDERED to file his amended complaint on or before December 6, 2024.

Until then, Defendants’ Motions (Docs. 25, 31) are HELD IN ABEYANCE for this claim. Once
Plaintiff amends his complaint, the Court will issue a supplemental Report and Recommendation
for Defendants’ Motions and conduct the required initial screen under 28 U.S.C. § 1915.
3. Excessive Use of Force by Defendant Moritz
Next is Plaintiff’s excessive force claim. To begin, in his Amended Complaint, Plaintiff
says that Defendant Moritz “assaulted” him, causing a “dislocated sternoclavicular joint,”
“scratches,” and “scrapes.” (Doc. 12 at 4–5). He says his injuries were serious enough to warrant
surgery, although, based on medical advice, Plaintiff participated in physical therapy only. (Id. at
5). In a prior Report and Recommendation, the Undersigned allowed Plaintiff to proceed with a
Fourth Amendment excessive force claim based upon these allegations. (Doc. 4 at 4, 7; Doc. 11
at 4).
Despite that Report and Recommendation, in his Motion, Defendant Moritz repeatedly
cites cases involving the pleading standard for a state law assault claim while arguing that Plaintiff

“cannot sustain [a] cause of action” against him. (See Doc. 31 at 9–10 (discussing the pleading
requirement under Ohio Rev. Code § 2744.03(A)(6)); Doc. 35 at 7 (same)). Simply put, it appears
that Defendant Moritz moves for judgment on a claim that Plaintiff does not bring. Still, even if
Defendant Moritz cited applicable law, his Motion would fail.
The Fourth Amendment guarantees citizens the right “to be secure in their persons . . .
against unreasonable . . . seizures.” U.S. Const. amend. IV. As a result, “[c]laims that law
enforcement officers have used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen” are “analyzed under the Fourth Amendment
and its ‘reasonableness’ standard.” Lesowitz v. Tittle, No. 5:17-cv-2174, 2019 WL 3006428, at *6
(N.D. Ohio July 10, 2019) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). To determine

if an officer’s use of force violates the Fourth Amendment, the Court must decide “whether his
actions are ‘objectively reasonable in light of the facts and circumstances confronting him, without
regard to his underlying intent or motivation.’” Martin v City of Broadview Heights, 712 F.3d
951, 958 (6th Cir. 2013) (quoting Graham, 490 U.S. at 388). Importantly, “[t]he test is
reasonableness at the moment force is used.” Id. Three factors guide the Court’s analysis: “‘[T]he
severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, or whether he is actively resisting arrest or attempting to evade arrest by flight.’”
Saalim, 97 F.4th at 1004 (quoting Graham, 490 U.S. at 396–97). But at base, the Court must
consider the “totality of the circumstances.” Id.
Taking Plaintiff’s allegations as true, he has done enough to allege a Fourth Amendment
excessive force claim. Notably, the crime for which Plaintiff was eventually charged—obstructing
official business—is not a serious one. So, “this fact weighs in favor of using less force when
arresting” Plaintiff. Thacker v. Lawrence Cnty., 182 F. App’x 464, 472 (6th Cir. 2006); see also

Saalim, 97 F.4th at 1008 (noting the plaintiff “had not been stopped for a severe crime” and finding
this factor weighed in his favor). Next, Plaintiff says that Defendant Moritz assaulted him before
he was arrested or detained. (Doc. 12 at 4 (“[D]efendants came past two No Trespassing signs,
after then Chief Moritz assaulted the plaintiff, was falsely arrested for assault and detained on his
porch.”)). This, too, “enhances the likelihood of a finding of excessive force,” because “‘[t]he
general consensus [in the Sixth Circuit] is that officers cannot use force . . . on a detainee who . . .
has been subdued, is not told he is under arrest, or is not resisting arrest.’” Saalim, 97 F.4th at
1005 (quoting, in a parenthetical, Grawey v. Drury, 567 F.3d 302, 314 (6th Cir. 2009)).
That leaves the remaining factor of whether Plaintiff posed “an immediate threat to the
safety of [Defendants] or others.” Saalim, 97 F.4th at 1004. Based on the body camera footage

provided by Plaintiff, Defendant Moritz argues that he used reasonable force to protect himself
and the other Defendants. (Doc. 35 at 3, 7–8 (claiming Plaintiff struck and pushed Defendant
Moritz)). But since the Court is limited only to the pleadings, these arguments are more
appropriate for a later stage when the Court has the benefit of a fully developed record.
Additionally, Defendant Moritz argues he has immunity for a state law assault claim. (Doc.
31 at 11–14). Yet he fails to argue he has immunity for Plaintiff’s Fourth Amendment excessive
force claim. (Id. at 12–13 (discussing only statutory immunity for an “assault” claim)). As a
result, the Court declines to consider at this stage whether Defendant Moritz is shielded by
qualified immunity for this claim. See Bolick v. City of East Grand Rapids, 580 F. App’x 314,
323 (6th Cir. 2014) (saying that qualified immunity is an affirmative defense which must be pled
and raised); Thomas v. Plummer, 489 F. App’x 116, 120 n.5 (6th Cir. 2012) (noting that the district
court may have erred when it assumed that a defendant intended to raise qualified immunity for a
Fourth Amendment claim where the defendant only briefed state law immunity issues). In sum,

the Undersigned RECOMMENDS that Defendant Moritz’s Motion (Doc. 31) be DENIED with
respect to Plaintiff’s Fourth Amendment excessive force claim against him.
Lastly, Defendants Johnson, Wilderman, and Arnett also move for judgment on Plaintiff’s
excessive force claim and note that Plaintiff does not allege that these Defendants used any force
against him. (Doc. 24 at 8–9). Indeed, Plaintiff’s Amended Complaint says that only Defendant
Moritz assaulted him. (Doc. 12 at 4). And at this stage, Plaintiff is required to “allege . . . facts
that demonstrate what each defendant did that violated the asserted constitutional right.” Dillon,
718 F. Supp.3d at 743 (internal quotation omitted) (emphasis in original). But again, Plaintiff
provides more facts in his briefing that are not included in his Amended Complaint. (See Doc. 33
at 5 (stating that Defendants Arnett and Wilderman used force when they “jerked [Plaintiff] out

the door of [his] home by [his] right arm”)).
Therefore, the Court HOLDS IN ABEYANCE this portion of Defendants Wilderman’s,
Arnett’s, and Johnson’s Motion (Doc. 25) and GRANTS Plaintiff leave to amend this claim as
well. Plaintiff is ORDERED to file his amended complaint on or before December 6, 2024.
Once the Court receives the amended complaint, the Undersigned will issue a supplemental Report
and Recommendation and screen the complaint under 28 U.S.C. § 1915.
C. Second Amendment Claim
Plaintiff also challenges Defendants’ seizure of his firearms under the Second Amendment.
(Doc. 12 at 3–5). Once more, Defendants argue they are entitled to qualified immunity. (Doc. 25
at 7–8; Doc. 31 at 5–6). Because Defendants raise qualified immunity, Plaintiff must allege

sufficient facts showing that (1) Defendants’ conduct violated his Second Amendment right, and
(2) that the right was clearly established at the time. See Johnson v. Mosely, 790 F.3d 649, 653
(6th Cir. 2015) (discussing a plaintiff’s burden on qualified immunity at the pleading stage).
Although the Second Amendment guarantees individuals the right to lawfully keep a
firearm in their home for self-defense, that right is not unlimited. Dist. of Columbia v. Heller, 554
U.S. 570, 626, 635 (2008). Here, Plaintiff contends that Defendants violated his Second
Amendment rights by seizing his firearms on February 23, 2023. (Doc. 12 at 4, 7). But courts in
other circuits have repeatedly found that “[t]he mere occurrence of a firearm seizure is not enough
to establish a Second Amendment violation.” Crook v. San Bernardino Cnty. Sheriff’s Dep’t, No.
5:22-cv-10, 2023 WL 8100579, at *6–7 (C.D. Cal. Sept. 30, 2023) (internal quotation omitted)

(also rejecting an argument that the plaintiff’s Second Amendment rights were “dramatically
expanded” by New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022)); see
also Aikens v. Bond, No. 21-cv-381, 2021 WL 5051134, at *4 (D. Del. Nov. 1, 2021); Walters v.
Wolf, 660 F.3d 307, 317–18 (8th Cir. 2011); Hopkins v. Claroni, No. 1:13-cv-229, 2015 WL
2371654, at *6–7 (D. Me. May 18, 2015); Harris v. Officer Hector Melchor, No. 23-cv-1094, 2024
WL 3385177, at *11 (C.D. Ill. July 1, 2024); Brodrick v. Wash. Cnty. Bd. of Cnty. Comm’rs, No.
22-cv-271, 2023 WL 113723, at *2 (N.D. Okla. Jan. 5, 2023). Instead, under this precedent,
Plaintiff must show that Defendants also restricted him from obtaining other legal firearms. See
Crook, 2023 WL 8100579, at *7; Walters, 660 F.3d at 318 (finding no Second Amendment
violation and noting that, although the defendants seized one of plaintiff’s firearms, they “did not
prohibit [him] from retaining or acquiring other firearms”); Harris, 2024 WL 3385177, at *11
(holding the same); Pierner-Lytge v. Mitchell, 412 F.Supp.3d 1012, 1019–21 (E.D. Wisc. 2019)
(finding no support in precedent for a Second Amendment claim where officers temporarily seized

the plaintiff’s firearms and she was unable to retain new ones due to personal finances).
Plaintiff cannot make that showing here. His inability to lawfully procure new firearms
stems from the CPO, not Defendants’ actions. (See Doc. 29 at 6–10). Indeed, based upon
Plaintiff’s allegations, none of the Defendants had any involvement in the issuance of the CPO,
nor are they responsible for its continuation. (Doc. 12 at 4, 7 (saying only that Defendants served
and executed provisions of the CPO)).
Still more, just this year, the Supreme Court found that temporarily disarming certain
individuals subject to restraining orders was not violative of the Second Amendment. See U.S. v.
Rahimi, 144 S.Ct. 1889, 1903 (2024). Although Rahimi addressed whether 18 U.S.C. § 922(g)(8)
on its face violated the Second Amendment, the Supreme Court also broadly opined that “[w]hen

a restraining order contains a finding that an individual poses a credible threat to the physical safety
of [another], that individual may—consistent with the Second Amendment—be banned from
possessing firearms while the order is in effect.” Id. at 1896. That is what happened in this case.
Based upon the Amended Complaint and the CPO, an Athens County court found Plaintiff posed
a credible threat to the physical safety of another and temporarily restricted his ability to possess
firearms as a result. (See Doc. 12 at 4, 7 (challenging only Defendants’ actions on February 23,
not the issuance of the CPO itself or the Athen County court’s findings)); Doc. 29 at 6–8 (finding
Plaintiff “poses a credible threat of physical violence” and prohibiting his possession of firearms
for one year while the CPO is in effect)). And Defendants acted upon that restriction when they
confiscated his firearms. (Doc. 12 at 4). These circumstances, when considered against Rahimi,
lend support to this Court’s conclusion that Defendants’ initial seizure of Plaintiff’s firearms did
not violate his Second Amendment rights.
And, even if Plaintiff’s allegations could be construed as such a violation, Defendants are

entitled to qualified immunity. To date, the exact contours of individual rights under the Second
Amendment are not clearly established in the Sixth Circuit. “While significant precedent exists to
assist courts in determining whether laws and regulations violate this Second Amendment right,
there is little controlling law addressing when an individual’s seizure of specific firearms is
similarly violative.” Novak v. Federspiel, No. 1:21-cv-12008, 2024 WL 1349298, at *16 (E.D.
Mich. Mar. 29, 2024) (emphasis in original). In fact, neither the United States Supreme Court nor
the Sixth Circuit have “addressed liability for constitutional tort claims or suggested that a law-
enforcement officer might be subject to monetary damages for seizing firearms pursuant to a
warrant.” Meeks v. Larsen, 611 F. App’x 277, 286 (6th Cir. 2015); see also Novak, 2024 WL
1349298, at *16–17 (discussing the lack of guidance in this area). True, Defendants did not seize

Plaintiff’s firearms under a warrant. But even in the circumstances presented here, no precedent
in this Circuit clearly establishes Plaintiff’s Second Amendment right to be free from the
temporary seizure of his firearms.
In sum, because Plaintiff’s does not allege a violation of a clearly established right, the
Undersigned RECOMMENDS that Defendants’ Motions be GRANTED for his Second
Amendment claim.
D. Sixth Amendment Claim
Defendants also argue that Plaintiff fails to adequately plead his Sixth Amendment claim
against them. (Doc. 25 at 10–11; Doc. 31 at 8–9). Once more, the Undersigned agrees.
The Sixth Amendment guarantees certain rights “[i]n all criminal prosecutions,” including
the rights to a speedy and public trial, to an impartial jury, to be informed of the nature and cause
of the accusation, to confront witnesses, and to be represented by counsel. See U.S. Const.
amend. VI. In his Amended Complaint, Plaintiff alleges that Defendant Johnson violated

Plaintiff’s Sixth Amendment rights by filing an “intentional false report/charge.” (Doc. 12 at 3).
But “it is the Fourth Amendment that ‘establishes the minimum constitutional standards and
procedures . . . for arrest and for ensuing detention.’” Bernard v. Nashville Metro Gov’t, No. 3:18-
cv-1366, 2019 WL 2162949, at *3 (M.D. Tenn. May 17, 2019) (quoting Manuel v. City of Joliet,
580 U.S. 357, 365 (2017)) (cleaned up). Nowhere else in the Amended Complaint does Plaintiff
cite the Sixth Amendment or plead facts that could give rise to a Sixth Amendment claim. (See
generally Doc. 12 at 4–5, 7 (discussing only facts for claims brought under the Second and Fourth
Amendments)). Consequently, the Court cannot determine what other type of Sixth Amendment
claim Plaintiff attempts to bring. Accordingly, the Undersigned RECOMMENDS GRANTING
Defendants’ Motions for Plaintiff’s Sixth Amendment claims.

E. Motion to Stay Discovery and the Dispositive Motion Deadline
Finally, Defendants move to stay all discovery and the dispositive motion deadline pending
a ruling on their Rule 12 motions. (Doc. 37). Their Motion is GRANTED in part and DENIED
in part. Discovery may proceed for Plaintiff’s excessive force claim against Defendant Moritz
only; all other discovery is STAYED. Once Plaintiff amends his complaint, the Undersigned will
determine whether discovery should proceed for any additional claims or Defendants. For now,
the dispositive motion deadline of January 6, 2025, remains in place. (Doc. 19 (case schedule)).
III. CONCLUSION
For the foregoing reasons, the Undersigned ORDERS the following:
• Defendants Wilderman’s, Arnett’s and Johnson’s Motion (Doc. 25) for Plaintiff’s
unconstitutional arrest and excessive force claims and Defendant Moritz’s Motion

(Doc. 31) for Plaintiff’s unconstitutional arrest claim are HELD IN ABEYANCE.
• The Undersigned GRANTS Plaintiff leave to amend his complaint for his
unconstitutional arrest and excessive force claims. He is ORDERED to file his
amended complaint on or before December 6, 2024.
• Defendants’ Joint Motion to Stay Discovery and Dispositive Motion Deadlines
(Doc. 37) is GRANTED in part and DENIED in part. Discovery for Plaintiff’s
excessive force claim against Defendant Moritz may proceed, but all other
discovery is STAYED. Dispositive motions are still due on January 6, 2025.
Finally, the Undersigned RECOMMENDS the following:

• Defendants Wilderman’s, Arnett’s, and Johnson’s Motion (Doc. 25) should be
GRANTED, except for Plaintiff’s unconstitutional arrest claim.
• Defendant Moritz’s Motion (Doc. 31) should be GRANTED in part and DENIED
in part. Plaintiff’s Fourth Amendment excessive force claim against him should
proceed. Otherwise, except for Plaintiff’s unconstitutional arrest claim, Defendant
Moritz’s Motion should be GRANTED.

Date: November 18, 2024 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting

authority for the objection(s). A Judge of this Court shall make a de novo determination of those
portions of the Report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence, or may
recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10743570. Public record. Not legal advice.