Wade v. Put-In-Bay Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

DIONTE WADE, CASE NO. 3:24 CV 1158

Plaintiff,

v. JUDGE JAMES R. KNEPP II

PUT-IN-BAY POLICE

DEPARTMENT, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

Pending before this Court is a Motion to Dismiss for Failure to State a Claim filed by

Defendants Put-In-Bay Police Department; Village of Put-In-Bay, Ohio; and Put-In-Bay Police

Officers Joshua Durda, Kyle Martin, Yuri Linetsky, Eric Seitz, Ashley McMicheaux, and David

Fenstermaker. (Doc. 5). Plaintiff Dionte Wade responded (Doc. 7), and Defendants replied (Doc.

8). Jurisdiction is proper under 28 U.S.C. § 1331. For the reasons discussed below, the Court grants

Defendants’ Motion.

BACKGROUND

The facts presented in the Complaint are accepted as true for the purposes of a motion to

dismiss. Haviland v. Metro. Life Ins. Co., 730 F.3d 563, 566–67 (6th Cir. 2013). Those facts are

as follows.

On July 24, 2022, Plaintiff was employed as a security guard at The Bayshore Resort (“the

Resort”) in Put-In-Bay, Ohio, when his employer called both him and Put-In-Pay Police

Department to respond to a disturbance. (Doc. 1, at 8). Upon his arrival at the Resort, Officers

Durda and Martin were already present. Id. Immediately, Plaintiff observed a disturbance on the

second floor of the Resort, saw a woman on the ground with an Officer’s1 knee to her back, and

heard Officers yelling at people to not record the incident. Id. Plaintiff, wearing his Resort shirt,

identified himself to the Officers as resort security and attempted to de-escalate the situation by

moving the crowd away from the Officers. Id. at 8–9. After Officers “swore at”, “shoved”, and

“taunted” Plaintiff and others, Plaintiff told onlookers that they had a right to record; at some point,

Plaintiff began recording the incident himself on his phone. Id. at 9. An Officer (which appears to

be either Officer Durda or Martin) then shoved Plaintiff against a wall by his neck, shoulder, and

chest area, confiscated his phone, handcuffed him, and forced him into a police cruiser, causing

injury to his head from contact with the vehicle. Id.

Plaintiff was arrested and taken to the police station, but not informed why nor read his

rights. Id. He was charged with obstructing official business, requiring a bond of $375.00. Id. at

10. Plaintiff hired an attorney to address the charges, costing him $750.00, but they were later

dismissed. Id.

Plaintiff’s Complaint brings six Counts: (1) retaliation against all individual Officers; (2)

excessive force against all individual Officers; (4) unlawful search and seizure against all

individual Officers; (5) failure to intervene against Officers Linetsky, Seitz, McMicheaux, or

Fenstermaker; and (6) failure to train and supervise against Village of Put-In-Bay and Put-In-Bay

Police Department. See Doc. 1.

1. After noting Officers Durda and Martin were on the scene upon his arrival, Plaintiff never again

indicates which specific Officer he is referring to in these factual allegations. Unless stated by the

Court, it is unclear whether this or any subsequent use of “Officer” refers to Durda, Martin,

Linetsky, Seitz, McMicheaux, or Fenstermaker.

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STANDARD OF REVIEW

Under Rule 12(b)(6), a complaint will only survive if it states a plausible claim for relief

on its face. Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 556 (2007)). To do so, the complaint must state factual allegations that allow the Court

to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Bates v.

Green Farms Condo. Ass’n, 958 F.3d 470, 480 (6th Cir. 2020) (citing Iqbal, 556 U.S. at 678). A

complaint is not required to contain “detailed factual allegations,” but must contain “more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555). When deciding a motion to dismiss, this Court presumes all factual

allegations in the complaint to be true and makes all reasonable inferences in favor of the non-

moving party. Total Benefits Plan. Agency v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434

(6th Cir. 2008).

The Sixth Circuit “has consistently held that damage claims against government officials

arising from alleged violations of constitutional rights must allege, with particularity, facts that

demonstrate what each defendant did to violate the asserted constitutional right.” Lanman v.

Hinson, 529 F.3d 673, 685 (6th Cir. 2008) (citing Terrance v. Northville Reg’l Psych. Hosp., 286

F.3d 834, 842 (6th Cir. 2002)). This requires a court to analyze separately whether the plaintiff has

plausibly alleged a constitutional violation by each defendant, and it may not attribute the actions

of all defendants to any one individual defendant. Heyne v. Metro. Nashville Pub. Sch., 655 F.3d

556, 564 (6th Cir. 2011).2

2. Plaintiff appears to argue this Court should take judicial notice of the body cam footage from

the incident to help the Complaint satisfy the pleading standard. (Doc. 7, at 3). This Court is not

inclined to address such an argument, as no videos have been provided to it.

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DISCUSSION

Defendants argue they are entitled to dismissal of all Counts for four reasons. First, they

assert the Complaint fails to meet the pleading standard against the individual Officers by not

identifying any specific actions taken by any specific Officers. (Doc. 5, at 3). Second, Defendants

claim all Officers are entitled to qualified immunity. Id. Third, Defendants argue the Count against

Village of Put-In-Bay fails to allege municipal liability. Id. at 9. And Fourth, Defendants assert

Put-In-Bay Police Department is incapable of being sued. Id. at 10.

Because the Court finds all claims can be resolved by Defendants’ other arguments at this

juncture, and “it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss

on the basis of qualified immunity”, the Court finds it unnecessary to reach the issue of qualified

immunity. Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016) (quoting Wesley

v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015)).

The Complaint states allegations against the Defendant Officers as either “Assisting

Officers” or “Arresting Officers.” As such, the Court discusses the sufficiency of such allegations

as to the groups of Defendants set forth in the Complaint.

Assisting Officers (Linetsky, Seitz, McMicheaux, and Fenstermaker)

Plaintiff’s Complaint refers to Officers Linetsky, Seitz, McMicheaux, and Fenstermaker

collectively as “Assisting Officers.” See Doc. 1. But it fails to allege any particular actions or

specific facts regarding any individual Assisting Officer.3 For example, it is unclear to the Court

3. In addition to defining the group of Officers and using it in Count headings, the term

“Assisting Officers” is only used one time. Every other factual allegation regards “Defendants”

as a whole or the Arresting Officers.

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when any of these Officers arrived at the scene, or if any of them interacted with Plaintiff in any

way on the day in question.

For this reason, as discussed in further detail below, Officers Linetsky, Seitz, McMicheaux,

and Fenstermaker are entitled to a dismissal of all claims against them in this case.

Retaliation, Excessive Force, False Arrest, Unlawful Search and Seizure

As to Counts One through Four, Plaintiff alleges no actions or involvement of any Assisting

Officer that would reasonably lead to an inference of liability. For each of these claims, Plaintiff

only alleges actions of wholly unidentified Officers or Arresting Officers; these Counts fail to even

assert a relevant action of the previously narrowed “Assisting Officers” class, let alone any one of

them specifically. See Doc. 1, at 11–14.

Even taking all allegations in the Complaint as true, there are none that tie the actions of

any individual Assisting Officer to any of these claims. See Boxill v. O’Grady, 935 F.3d 510, 518

(6th Cir. 2019) (“Summary reference to a single, five-headed ‘Defendants’ does not support a

reasonable inference that each Defendant is liable for retaliation.”). As such, these Defendants are

entitled to a dismissal.

Failure to Intervene

Defendants argue Plaintiff’s failure to intervene claim fails on two grounds: first, because

Plaintiff failed to properly plead excessive force, and second, because Plaintiff failed to identify

facts that reasonably allege responsibility of any Assisting Officer for failure to intervene. (Doc.

5, at 9). Plaintiff maintains that all Defendants had a duty to intervene when Arresting Officers

were violating his constitutional rights through the use of excessive force. (Doc. 7, at 9).

To establish failure to intervene a plaintiff must allege defendants: (1) “observed or had

reason to know that excessive force would be or was being used” and (2) “had both the opportunity

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and the means to prevent the harm from occurring.” Burgess v. Fischer, 735 F.3d 462, 475 (6th

Cir. 2013) (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)).

Plaintiff fails to plead facts that meet either requirement of a failure to intervene claim. The

Complaint gives no indication as to which Assisting Officers, if any, were present, witnessed the

use of force, had time to intervene, or were otherwise in a position to intervene. There are no

allegations regarding the physical proximity of any Assisting Officers to the alleged excessive

force, nor any facts suggesting that the force occurred over a sufficient period of time to allow

meaningful intervention. Absent factual allegations establishing the Assisting Officers had

knowledge of the force and a realistic opportunity to act, Plaintiff’s failure to intervene claim does

not survive dismissal.

Arresting Officers (Durda and Martin)

Plaintiff’s Complaint refers to Officers Durda and Martin as, collectively, “Arresting

Officers” and alleges no specific actions of either as an individual. See Doc. 1. Defendants argue

treating both officers as one person, without specifying any individual actions from either, requires

dismissal. See Doc. 5.

The Sixth Circuit has allowed similarly pleaded claims—where particular actions were not

clearly attributed to particular defendants—to move forward in limited circumstances; namely,

when a plaintiff is unable to separate the actions of officers due to some impairment created by the

defendants. See Batson v. Hoover, 788 F. App’x 1017, 1018 (6th Cir. 2019) (allowing non-specific

claims to move forward where the plaintiff claimed to have been blinded by pepper-spray from

defendants); see also Fazica v. Jordan, 926 F.3d 283, 292 (6th Cir. 2019) (allowing non-specific

claims to move forward where plaintiff claimed defendants put a spit mask on her that covered her

eyes).

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Here, Plaintiff asserts no action taken by any Defendant that impaired his ability to

distinguish them. Nor does he provide any other reason, even in opposition, as to why he would

not have been able to identify which Officer did what and who was on the scene. Instead, Plaintiff’s

Opposition asserts that Defendants have not voluntarily produced video footage additional to what

he already has, while at the same time admitting he has the body cam footage from all but one

Officer. (Doc. 7, at 9–10). At the pleading stage, it is Plaintiff’s burden—not Defendants’—to

allege specific factual content that plausibly supports each element of the claim as to each

Defendant. Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007–08

(7th Cir. 2021). As such, and as further discussed below, the Court grants Defendants’ Motion to

Dismiss as to all claims against Officers Martin and Durda.

Retaliation

Plaintiff contends Officers Durda and Martin violated his First Amendment rights through

excessive force in response to recording police actions, which he claims is a protected right. (Doc.

7, at 5).

A First Amendment retaliation claim requires: “(1) the plaintiff engaged in protected

conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary

firmness from continuing to engage in that conduct; and (3) there is a causal connection between

elements one and two -- that is, the adverse action was motivated at least in part by the plaintiff's

protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).

Plaintiff’s First Amendment retaliation claim fails to identify which Officer engaged in the

alleged retaliatory conduct. First, after previously and explicitly describing conduct as being done

by a singular Officer, Count One repeats the same alleged conduct but precedes it by referring to

the Arresting Officers jointly as taking “retaliatory action”. See Doc. 1, at 4 (“an officer from the

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Put-In-Bay Police Department shoved Plaintiff against a wall by his neck, confiscated Plaintiff’s

phone without cause as he was recording, placed Plaintiff in handcuffs, and forcefully threw

Plaintiff in his police cruiser.”) (emphasis added); then see id. at 11 (“they used excessive force

and shoved Plaintiff against a wall and forcefully held him against wall by his neck, shoulder, and

chest area; grabbed Plaintiff’s phone so he could not record the incident; and forced Plaintiff into

his cruiser”) (emphasis added). Second, this Count alleges actions of entirely unnamed Officers.

See id. at 12 (“the Officer told another Officer to ‘grab the one in purple’”).

Absent specific allegations regarding either Arresting Officer’s alleged retaliatory actions,

Plaintiff’s retaliation claim cannot proceed against Defendants Durda and Martin.

Excessive Force

Though Count Two does not specifically describe any actions it alleges to be excessive

force, the Complaint elsewhere states that either unnamed Officers, all Defendants generally, or

Arresting Officers used excessive force when they: forcefully held Plaintiff against a wall by his

neck, shoulder, and chest area; grabbed his phone to prevent him from recording the incident; and

forced him into a police cruiser without informing him that he was being arrested, reading him his

rights, or explaining why he was being taken to the police station. Id. at 4, 9, 11. Plaintiff contends

the use of force was inappropriate given that he was unarmed and did not resist arrest. (Doc. 7, at

6–7).

A claim for excessive force requires balancing an “individual’s Fourth Amendment

interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S.

386, 396 (1989) (quoting United States v. Place, 462 U.S. 696, 703 (1983)). The Sixth Circuit has

identified three factors used to determine the reasonableness of the force used by police: “[1] the

severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of

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the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest

by flight.” Graham, 490 U.S. at 396.

As discussed, Plaintiff’s Complaint broadly alleges Arresting Officers used excessive

force, does not specify who took what actions against him, and fails to include facts asserting the

unreasonableness of the arrest. This does not meet the pleading standard required by the Sixth

Circuit.

False Arrest

Plaintiff’s false arrest claim contends Defendants violated his constitutional rights under

the Fourth Amendment by forcing him into the police cruiser without probable cause or reasonable

belief that he was committing a crime. (Doc. 1, at 13–14). Defendants argue Plaintiff’s claim for

false arrest consists of blanket allegations lacking specificity and Plaintiff provides no information

concerning his arrest. (Doc. 5, at 7).

“A false arrest claim under federal law requires a plaintiff to prove that the arresting officer

lacked probable cause to arrest the plaintiff.” Voyticky v. Vill. of Timberlake, 412 F.3d 669, 677

(6th Cir. 2005). “Probable cause exists for an arrest when the facts and circumstances within the

officer’s knowledge 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.’” Griesmar v. City of Stow, 2022 WL 17581658, *5 (6th Cir.) (quoting

Weser v. Goodson, 965 F.3d 507, 513–14 (6th Cir. 2020)). “In determining whether an officer had

probable cause, this Court considers the totality of the circumstances, looking to both ‘evidence of

guilt’ and ‘exculpatory evidence’ available to the officer at the time.” Robinson v. City of

Knoxville, 2025 WL 621451, *4 (citing Ouza v. City of Dearborn Heights, 969 F.3d 265, 279 (6th

Cir. 2020)).

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Not only does Plaintiff fail to specify which Officer made the decision to initiate the arrest,

the entirety of Count Three solely describes Defendants as a group; it makes no mention of any

individual Officer or even Arresting Officers as a sub-group. Without factual allegations

identifying what each Officer knew or did at the time of the arrest, Plaintiff’s claim consists of

mere blanket allegations. Such generalized accusations are insufficient to survive dismissal.

Unlawful Search and Seizure

Count Four states Plaintiff had his person and phone seized by “Defendants”, and that his

phone was later retrieved by “[t]he arresting officer”. (Doc. 1, at 14). Legal searches and seizures

by law enforcement require probable cause or reasonable suspicion, consent, or a warrant. See

Rodriguez v. United States, 575 U.S. 348, 365 (2015).

Defendants contend the Complaint fails to allege which Officers took what actions that

amounted to an unlawful search and seizure. (Doc. 5, at 8). Plaintiff’s Opposition argues Arresting

Officers unlawfully seized Plaintiff’s personal property when they confiscated his phone without

reasonable suspicion, probable cause, consent, or any other lawful justification. (Doc. 7, at 7–8).

Plaintiff fails to allege with sufficient specificity the actions of each individual officer

involved in the alleged unlawful search and seizure. While the Complaint asserts facts that, if true,

could establish an unlawful seizure of both Plaintiff’s person and property, it refers only to

“Defendants” without attributing particular conduct to either Officer Durda or Martin. Absent such

individualized allegations, the claim cannot proceed against the Defendants as currently pleaded.

Village of Put-In-Bay

Count Six argues Village of Put-In-Bay failed to train and supervise Defendant Officers

and conclusory states it has a “policy, practice, and custom of failing to train and supervise police

officers” that lead to a deprivation of Plaintiff’s constitutional rights. (Doc. 1, at 17). Defendants

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argue the Complaint fails to properly allege a violation of constitutional rights by the municipality.

(Doc. 5, at 9–10).

The Sixth Circuit has stated the elements of failure to train as: “(1) a clear and persistent

pattern of illegal activity, (2) which the county knew or should have known about, (3) yet remained

deliberately indifferent about, and (4) that the county’s custom was the cause of the deprivation of

[plaintiff’s] constitutional rights.” Siefert v. Hamilton Cnty., 951 F.3d 753, 767 (6th Cir. 2020)

(quoting Bickerstaff v. Lucarelli, 830 F.3d 388, 402 (6th Cir. 2016)). “A pattern of similar

constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate

deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62

(2011) (citing Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997)).

While the Complaint broadly asserts a violation of multiple individuals’ constitutional

rights on the night of the incident, there is no mention of any other instance of illegal activity by

Put-In-Bay Police Department or its Officers. And there are no factual assertions as to why the

municipality would be aware and responsible. Further, as discussed above, Plaintiff has failed to

properly plead any violation of a constitutional right against any Officer. As such, Plaintiff has not

sufficiently plead facts against Village of Put-In-Bay for failure to train and supervise.

Put-In-Bay Police Department

Defendants argue police departments are non sui juris, or incapable of being sued. (Doc.

5, at 10). Rule 17 of the Federal Rules of Civil Procedure governs capacity to be sued in federal

district courts. Fed. R. Civ. P. 17(b)(3). Rule 17 states that capacity to be sued, except individuals

and corporations, “shall be determined by the law of the state in which the district court is

located.” Id. Ohio law therefore governs the capacity of Put-In-Bay Police Department to be sued

in this matter.

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Ohio law considers city police departments non sui juris; the real party in interest is the

city itself. Parmelee v. Schnader, 2018 WL 1110474, at *5 (Ohio Ct. App.) (citing Cooper v.

Youngstown, 2016 WL 5874642, at *6 (Ohio Ct. App.)). For this reason, courts in this District

routinely summarily dismiss cases filed against police departments. See, e.g., Manning v. Berling,

2023 WL 3601494, at *3 (N.D. Ohio) (dismissing plaintiff’s complaint because “the City of

Toledo ‘Police Department’ is not an entity subject to suit under § 1983”); see also Lathan v. City

of Cleveland, 2012 WL 1708762, at *2 (N.D. Ohio) (“It is well-established that police departments

‘are not sui juris and, therefore, cannot sue or be sued. They are merely sub-units of the

municipalities they serve.’”) (quoting Deir v. Lake County, 2012 WL 1142467, at *3 (N.D. Ohio).

As such, this Court finds Put-In-Bay Police Department lacks capacity to be sued and

dismisses the claim against it.

Plaintiff’s Request to Amend

In Plaintiff’s Opposition, he contends that if this Court agrees with Defendants’ arguments

in the Motion to Dismiss, he “should be granted leave to amend [his] [C]omplaint to allow for

more specific allegations to be delineated and to file the videos as exhibits to the Complaint.”

(Doc. 7, at 3).

While a court “should freely give leave [to amend] when justice so requires,” Fed. R. Civ.

P. 15(a)(2), the Court must have before it the substance of the proposed amendment to determine

whether “justice so requires.” Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017). Further, “a

bare request in an opposition to a motion to dismiss . . . is not a motion to amend.” Louisiana Sch.

Emps. Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th Cir. 2010) (internal quotation

marks and citation omitted).

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Plaintiff filed no motion to amend his Complaint, nor did he attach a proposed Amended

Complaint or indicate how his allegations would become more specific by using video footage he

apparently had before filing his initial Complaint. As such, the Court denies this request.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motion to Dismiss (Doc. 5) be, and the same hereby is,

GRANTED and all claims against Defendants are DISMISSED; and it is

FURTHER ORDERED that Plaintiffs request to amend the Complaint (Doc. 7, at 10) be,

and the same hereby is, DENIED.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

Dated: July 23, 2025

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