# Andrus v. City of Cincinnati Police Department

> District Court, S.D. Ohio · September 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11135499

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 9, 2025
- **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/11135499

## How later opinions describe it (automated extraction)

- finding a First Amendment right to “openly film police officers carrying out their duties”
- finding the same for malicious prosecution claims under § 1983
- finding the same for Fourth Amendment unreasonable seizure claims
- holding that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege sufficient factual matter to plausibly show that the arrest was made without probable cause

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION - CINCINNATI
CALVIN ANDRUS, : Case No. 1:24-cv-572
Plaintiff, Judge Matthew W. McFarland
KRAIG KUNZ, et al.,
Defendants.

ORDER AND OPINION

This matter is before the Court on Defendants’ Motion to Dismiss (Doc. 13).
Plaintiff filed a Response in Opposition (Doc. 16), to which Defendants filed a Reply in
Support (Doc. 18). Thus, the matter is ripe for review. For the following reasons,
Defendants’ Motion to Dismiss is DENIED.
ALLEGED FACTS
Plaintiff Calvin Andrus is a freelance photojournalist who regularly documents
newsworthy events in Cincinnati, Ohio, through video recordings. (Compl., Doc. 1, □ 7.)
Plaintiff has worked as a photojournalist for thirty years, routinely monitoring police and
fire communications to respond quickly to these events. (Id. at { 8.) Defendant Kraig
Kunz (“Sgt. Kunz”) is a police sergeant with Defendant City of Cincinnati Police
Department (“CPD”), collectively referred to as Defendants. (Id. at 4 2-3.)
On November 19, 2023, Plaintiff arrived on the scene of a severe automobile
collision on Spring Grove Avenue in Cincinnati. (Compl., Doc. 1, ¢ 11.) CPD had set up

a perimeter with yellow tape to restrict access to the scene of the collision. (Id. at 12.)
Plaintiff began recording video of the police and collision site with his phone, standing
outside the perimeter of the yellow tape. (Id. at J 13.) Sgt. Kunz then approached Plaintiff
and ordered him to leave the scene. (Jd. at § 14.) Plaintiff refused to leave, advising Sgt.
Kunz that he stood outside the cordoned-off area. (Id. at § 15.) Sgt. Kunz and Plaintiff
engaged in a debate where Sgt. Kunz ordered Plaintiff to leave and threatened arrest,
while Plaintiff repeatedly asserted his right to remain in place and record the scene. (Id.
at {| 16-17.) Finally, Sgt. Kunz arrested Plaintiff, restrained him with handcuffs, and
placed him in the back of a police cruiser. (Id. at J 18.)
While sitting in the police cruiser, Plaintiff observed other individuals enter the
scene that was blocked by police tape; Plaintiff alleges that they were not engaged in any
First Amendment protected activities and were not arrested. (Compl., Doc. 1, 19-20.)
Over thirty minutes after his arrest, Plaintiff suffered what was later diagnosed as a panic
attack, causing him severe chest pain. (Id. at § 21.) He was transported to a hospital for
treatment. (Id.) Sgt. Kunz charged Plaintiff with Obstructing Official Business in violation
of Ohio Revised Code § 2921.31, a second-degree misdemeanor. (Id. at { 22.) The City of
Cincinnati ultimately dismissed the charge in the interests of justice on June 25, 2024. (Id.
at 24.)
PROCEDURAL POSTURE
Plaintiff filed this Complaint against Defendants on October 11, 2024. (See Compl.,
Doc. 1.) Against Sgt. Kunz, Plaintiff brings claims of false arrest (Count 1), Fourth
Amendment unreasonable seizure (Count 2), malicious prosecution under both Ohio

common law and 42 U.S.C. § 1983 (Counts 4 and 5), and abuse of process (Count 6). (Id.
at {| 25-38, 47-68.) Plaintiff also brings a claim of First Amendment retaliation (Count 3)
against both Defendants and seeks injunctive relief (Count 7) enjoining Defendants from
unlawfully restricting the access of media representatives and the general public to
observe or record newsworthy events, and from wrongfully arresting and charging
persons lawfully exercising their rights to do so. (Id. at [| 39-46, 69-70.) On January 2,
2025, Defendants moved to dismiss Plaintiff's Complaint for failure to state a claim upon
which relief can be granted, which has been fully briefed.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss for failure to
state a claim tests a plaintiff’s cause of action as stated in a complaint. Golden v. City of
Columbus, 404 F.3d 950, 958 (6th Cir. 2005); Fed. R. Civ. P. 12(b)(6). A claim for relief must
be “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Courts accept
all factual allegations as true and construe them in the light most favorable to the plaintiff.
Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018). That said, courts are not bound to do the
same for a complaint’s legal conclusions. Twombly, 550 U.S. at 555. And, when a complaint
contains sufficient facts to satisfy the elements of an affirmative defense put forth by a
defendant, courts may grant dismissal on that basis. Est. of Barney v. PNC Bank, Nat. Ass’n,
714 F.3d 920, 926 (6th Cir. 2013).
ANALYSIS
I. Use of Video Footage
As a preliminary matter, the Court will first analyze the use of video footage that

Defendants provided in support of their Motion. In their Motion, Defendants rely on
evidence from video footage captured by both Sgt. Kunz’s and Plaintiff's body-worn
cameras, as well as CPD’s mobile-video recorder, or “dashcam.” (See Motion, Doc. 13, Pg.
ID 34-35.) Defendants provided this footage to the Court on December 30, 2024. (See
Notices of Manual Filing, Docs. 10, 11.) But, Plaintiff asserts that the Court cannot
consider this footage when deciding Defendants’ Motion to Dismiss because it is outside
the pleadings. (Response, Doc. 16, Pg. ID 171.) The Court will therefore analyze whether
the video footage is properly before the Court at this stage of litigation.
Generally, when deciding a motion to dismiss, a court can only consider the
materials which are properly before it. Diei v. Boyd, 116 F.4th 637, 643 (6th Cir. 2024). □□□□
Rule 12(b)(6) motion should be decided solely on the complaint.” Id. But, there is an
exception to this general rule that is relevant here. First, a court may consider video
footage evidence beyond the pleadings when “the videos are clear and blatantly
contradict or utterly discredit the plaintiff's version of events.” Saalim v. Walmart, Inc., 97
F.4th 995 (6th Cir. 2024) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
Plaintiff objects to Defendants’ use of this video footage in support of their Motion.
(Response, Doc. 16, Pg. ID 171.) Relying on Saalim, Plaintiff argues that the Court cannot
consider the footage because the videos do not “blatantly contradict” or “utterly
discredit” Plaintiff's version of events. (Id. (citing Saalim, 97 F.4th at 1002).) As the Sixth
Circuit has stated, the footage must be so contradictory that “no reasonable jury could
watch the video and agree with the plaintiff.” (Id. (quoting Osberry v. Slusher, 750 F. App’x
385, 390 (6th Cir. 2018)) (cleaned up).) In Osberry, the Sixth Circuit upheld the district

court’s finding that it could not consider video footage of the plaintiff's arrest when
analyzing the motion on the pleadings. 750 F. App’x at 391. Instead, the court reiterated
that, at the pleading stage of litigation, it can “rely on the well-pleaded allegations in the
complaint and leave further evaluation of the video to either the district court at summary
judgment or the jury at trial.” Id.
Likewise, according to Plaintiff, the video footage here does not contradict or
discredit his claims and the Court cannot consider when deciding Defendants’ Motion.
(Response, Doc. 16, Pg. ID 172.) In their Reply, Defendants simply state that the videos
do contradict Plaintiff's claim that he was arrested without probable cause. (Reply, Doc.
18, Pg. ID 236.) The Court, though, having viewed the footage Defendants provided, does
not agree with Defendants’ statement. The footage does not “blatantly contradict” or
“utterly discredit” Plaintiff's version of events as pled in his Complaint.
Nevertheless, Defendants argue that the Court still must consider the footage
because it is “central to Sgt. Kunz’s claim” of qualified immunity. (Reply, Doc. 18, Pg. ID
236.) In support of this claim, Defendants point to Sixth Circuit case law allowing the
consideration of videos at the motion-to-dismiss stage in qualified immunity cases. (Id.
(citing Bell v. City of Southfield, 37 F.4th 362, 364 (6th Cir. 2022)).) In Bell, the court allowed
the use of videos at the early stage of litigation because it was central to an officer's
qualified immunity defense. 37 F.4th at 364. But, the court reiterated the narrow limitation
placed on the use of the videos at the motion-to-dismiss stage. Id. Specifically, the Sixth
Circuit acknowledged that it could only rely on the videos over the complaint “to the
degree the videos are clear and blatantly contradict or utterly discredit the plaintiff's

version of events.” Id. (cleaned up). Thus, the videos were allowed for the qualified
immunity case because the “uncontroverted video evidence easily resolves the case.” Id.
So, the court in Bell maintained the same standard as the one used in Saalim and Osberry:
the video evidence must indisputably contradict Plaintiff's allegations. Id. It merely
applied this standard in the qualified immunity context.
Defendants state that the video indisputably shows that Sgt. Kunz is entitled to
qualified immunity. The Court will address Defendants’ qualified immunity defense in
greater detail below. But, to overcome a qualified immunity defense, a plaintiff must first
show that an officer violated his constitutional rights, and then that the right was clearly
established. Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006). Here, the Court
still finds that the footage does not blatantly contradict Plaintiff's allegations.
Importantly, the videos do not discredit Plaintiff's constitutional rights claims. Thus, the
video footage does not show that Sgt. Kunz is uncontrovertibly entitled to qualified
immunity. On these grounds, the Court will not consider the videos over the pleadings
on Defendants’ Motion to Dismiss.
II. Defendants’ Motion to Dismiss
Having established that the video footage Defendants submitted will not be
included in the Court's analysis of their Motion to Dismiss, the Court now moves onto
the merits of the Motion. Defendants argue that Plaintiff fails to state a claim upon which
relief can be granted for each of his eight claims. The Court will address each claim in
turn.

a. False Arrest, Malicious Prosecution, and Unreasonable Search and Seizure
Claims (Counts 1, 2, 4 & 5)
Plaintiff alleges false arrest and malicious prosecution under both 42 U.S.C. § 1983
and Ohio common law, and Fourth Amendment unreasonable seizure under 42 U.S.C. §
1983. Plaintiff's Response and Defendants’ Reply both collapse the analyses for all four
claims into a single analysis. (See Response, Doc. 16, Pg. ID 173-74; Reply, Doc. 18, Pg. ID
237-38.) Indeed, to survive a motion to dismiss, all four claims require Plaintiff to allege
a lack of probable cause for his arrest. See Estep v. Combs, 366 F. Supp. 3d 863, 881 (E.D.
Ky. 2018) (holding that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege
sufficient factual matter to plausibly show that the arrest was made without probable
cause); Graves v. Mahoning County, 821 F.3d 772, 774 (6th Cir. 2016) (finding the same for
Fourth Amendment unreasonable seizure claims); Gonzalez v. Kovacs, 687 F. App'x 466,
469 (6th Cir. 2017) (finding the same for malicious prosecution claims under § 1983);
Borthwick v. Dept. of Bldgs. & Inspections, No. C-210315, 2022 WL 1197381, at *3 (Ct. App.
Ohio Apr. 22, 2022) (finding the same for Ohio malicious prosecution claims); see also
Briner v. City of Ontario, No. 1:07-CV-129, 2007 WL 2891343, at *4 (N.D. Ohio Sept. 28,
2007) (“[M]alice may be inferred from the absence of probable cause, and thus the absence
of probable cause is the gist of an action for malicious prosecution.”). Thus, the Court will
analyze each of these four claims to determine whether Plaintiff sufficiently pled a lack
of probable cause.
Turning first to Plaintiff's false arrest claim, such a claim survives a Rule 12(b)(6)
motion when it clearly details the defendant's actions that demonstrate a lack of probable

cause. Courtright v. City of Battle Creek, 839 F.3d 513, 521 (6th Cir. 2016). And, if the
defendant's claims contradict the well-pleaded facts in the plaintiff's complaint, the court
still must accept the plaintiff’s plausible allegations as true, which can be sufficient to
overcome the motion. Crawford v. Geiger, 996 F. Supp. 2d 603, 621 (N.D. Ohio 2014). In
contrast, courts have dismissed false arrest claims when the complaint merely alleges
“vague, conclusory assertions and boilerplate language,” and lacked sufficient factual
support for the lack of probable cause. Thomas v. Noder-Love, 621 F. App'x 825, 828, 832
(6th Cir. 2015). For instance, in Thomas, the defendant misidentified the plaintiff and
arrested him. The plaintiff then sued, alleging a false arrest claim. The court upheld
dismissal of the plaintiff's false arrest claim because he did not allege that the defendants
knew they had misidentified him at the time of arrest; thus, the plaintiff had failed to
allege facts showing a lack of probable cause.
Here, Defendants assert that they, too, had probable cause to arrest Plaintiff based
on the elements of the offense under Ohio Revised Code § 2921.31. (Motion, Doc. 13, Pg.
ID 39-40.) They point to courts’ broad interpretation of the statute, stating that the Sixth
Circuit recognizes that a violation occurs if the individual charged made it “more
difficult” for law enforcement to gain control of a situation. (Id. (quoting Howse v. Hodous,
953 F.3d 402, 408 (6th Cir. 2020)).) And, according to Defendants, Plaintiff made it more
difficult for Defendants to gain control of the situation by standing in the roadway,
becoming argumentative, and generally being noncompliant as they were attempting to
move the crime scene farther back. (Id.)

Plaintiff responds that Defendants did not have probable cause as he was not
obstructing official business. (Response, Doc. 16, Pg. ID 174.) First, Plaintiff states that
Ohio courts emphasize the “affirmative act” element of the offense. (Id. at Pg. ID 173.)
Specifically, “every minor delay, annoyance, irritation, or inconvenience” does not
constitute obstruction of official business. (Id. (quoting State v. Harris, 121 N.E.2d 21, 28
(Ohio Ct. App. 2018)).) Additionally, according to Plaintiff, merely refusing to “get off
the street” does not constitute an affirmative act. (Id. (citing In re S.J., 225 N.E.2d 368, 374
(Ohio Ct. App. 2023)).) And, Plaintiff avers that he was engaging in protected conduct,
undermining the “without privilege” element of the offense. (/d.) Finally, Plaintiff points
to the lack of nexus between his action and the alleged obstruction, stating that, for
bystanders, “there must be some clear nexus between the individual's affirmative act and
the alleged obstruction.” (Id.)
In their Reply, Defendants point out that Plaintiff's reliance on In re S.J. was
improper, as that case involved analysis of the “reasonable doubt” standard, not the
“probable cause” standard. (Reply, Doc. 18, Pg. ID 237.) And, reasonable doubt is a lower
standard. (Id. (citing Gardner v. Harrod, 656 F. App’x 755, 759 (6th Cir. 2016)).) This
discussion, however, extends beyond the issue at hand. Lack of probable cause is indeed
required for a false arrest claim. And the existence of probable cause is a defense to a false
arrest claim. But, at this stage of litigation, with only the pleadings before it, the Court
simply must determine whether Plaintiff's Complaint plausibly alleges that Defendants
lacked probable cause to make the arrest. Like in Crawford, the Court must construe all of
Plaintiff's factual allegations as true, even if Defendants’ version of events contradicts

those allegations. Plaintiff states in his false arrest claim that he recorded the police while
standing behind the police line. (Compl., Doc. 1, { 29.) He does not allege that the police
were attempting to expand the crime scene to include the area where he was standing.
Viewing these facts in a light most favorable to Plaintiff, the Court finds that Plaintiff did
not make it more difficult for Defendants to gain control of the situation. Unlike in
Thomas, Plaintiff's claim contains more than mere conclusory allegations or a recitation
of the elements; instead, it provides factual support to show a lack of probable cause.
Thus, the false arrest claim cannot be dismissed.
Moving onto the unreasonable seizure and malicious prosecution claims, as the
Court noted above, the analysis of these claims is substantially similar to that of the false
arrest claim. Defendants themselves argue that the claims all fail because “Sgt. Kunz had
probable cause to arrest.” (Motion, Doc. 13, Pg. ID 40-41.) Specifically, under the Fourth
Amendment, Defendants assert that an officer can seize someone if he has probable cause
that the person has violated the law. (Id. at Pg. ID 41 (citing Howse, 953 F.3d at 409).)
Similarly, malicious prosecution claims under both Ohio law and 42 U.S.C. § 1983 require
a plaintiff to demonstrate a lack of probable cause for the criminal prosecution. (Id.)
Defendants’ argument for dismissal of these claims rests on the same argument they
made for dismissal of the false arrest claim: Sgt. Kunz had probable cause to arrest
Plaintiff. (Id.)
As previously mentioned, at this stage in the proceedings, the Court is bound by
the four corners of Plaintiff's Complaint and must consider only the allegations contained
on its face. Thus, for these claims, in order to overcome a Rule 12(b)(6) motion, the
10

relevant question is whether the complaint plausibly alleges a lack of probable cause.
Courts routinely dismiss § 1983 claims, like Plaintiff's unreasonable seizure and
malicious prosecution claims, at this stage where plaintiffs fail to allege facts
demonstrating that the defendant lacked probable cause. See, e.g., Ghaster, 913 F. Supp.
2d at 454 (dismissing complaint that failed to identify which charges allegedly lacked
probable cause). The same is true for malicious prosecution claims brought under Ohio
law. See Rogers v. Horwitz, No. 1:20-CV-2568, 2023 WL 6383796, at *14 (N.D. Ohio Sept. 29,
2023) (dismissing Ohio malicious prosecution claim where the plaintiff failed to plead
sufficient facts showing lack of probable cause). Conversely, courts have permitted § 1983
claims for unreasonable seizure under the Fourth Amendment to proceed when plaintiffs
adequately allege that the arresting officer lacked probable cause. See Stacy v. Clarksville
Police Dep’t, No. 3:24-CV-470, 2025 WL 880149, at *5 (M.D. Tenn. Mar. 21, 2025). Like the
plaintiff in Stacy, Plaintiff here alleges that his arrest by Defendant occurred while
Defendant was acting under color of state law and that the arrest was made without
probable cause. (Compl., Doc. 1, 4] 29, 35.) Accepting these allegations as true and
viewing them in the light most favorable to Plaintiff, the Complaint sufficiently alleges a
lack of probable cause and thus these claims can proceed.
b. First Amendment Retaliation Claim (Count 3)
Plaintiff claims that his arrest was undertaken in retaliation for exercising his First
Amendment rights. (Compl., Doc. 1, 4 { 39-46.) Specifically, Plaintiff states that his public
recording of police is “robustly protected by the First Amendment,” and that his arrest
was “substantially motivated by the exercise of that protected conduct.” (Id. at JJ 41-42.)
11

In their Motion, however, Defendants argue that the Sixth Circuit has not held that a First
Amendment right to record police in public exists. (Motion, Doc. 13, Pg. ID 42.) Indeed,
the Sixth Circuit noted that “the right [to record police] is not clearly established.” Clark

v. Stone, 998 F.3d 287, 303 (6th Cir. 2021). Courts throughout the circuit disagree on
whether the First Amendment protects an individual who records public officials. See,
e.g. Crawford v. Geiger, 996 F. Supp. 2d 603, 614-15 (N.D. Ohio 2014) (finding a First
Amendment right to “openly film police officers carrying out their duties”), reversed on
other grounds, 656 F. App’x 190 (6th Cir. 2016); Hils v. Davis, No. 1:21-CV-475, 2022 WL
769509, at *8 (S.D. Ohio Mar. 14, 2022) (“[N]either the public nor the media has a First
Amendment right to videotape, photograph, or make audio recordings of government
proceedings that are by law open to the public.”).
At this stage, however, the Court declines, and indeed finds it unnecessary, to
address the existence of a First Amendment right to record the police. Rather, the only
issue before the Court is whether, viewing the Complaint in the light most favorable to
Plaintiff, the Court finds the claim for First Amendment retaliation plausible on its face.
“[T]he First Amendment prohibits government officials from subjecting an individual to
retaliatory actions” for exercising his rights. Nieves v. Bartlett, 587 U.S. 391, 398 (2019). A
claim for First Amendment retaliation has three elements: “(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.” Freeman, 667 F. Supp. 3d
12

at 660 (citing Maben v. Thelen, 887 F.3d 252, 264 (6th Cir. 2014)). Although the existence of
probable cause will defeat a First Amendment retaliation claim, an exception exists when
“otherwise similarly situated individuals not engaged in the same sort of protected
speech had not been” arrested. Rideout, 691 F. Supp. 3d at 826.
Plaintiff alleges that he was engaged in the protected conduct of recording the
police when Set. Kunz arrested him without probable cause, and that the arrest was
“substantially motivated” by his exercise of that protected conduct. (Compl., Doc. 1, {
42.) In support of this contention, Plaintiff describes that Sgt. Kunz approached him while
he was outside of the police tape perimeter and threatened to arrest him if he did not
leave. (Id. at 9] 15-16.) Further, Plaintiff claims that the arrest prevented him—and would
likewise deter an ordinary person in the situation— from continuing to record the police.
(Id. at { 42.) And, he states that he would not have been arrested had he not been engaged
in his protected First Amendment activity at the scene. (Id. at J 43.) Specifically, Plaintiff
asserts that while sitting in the police cruiser after his arrest, he witnessed other
individuals enter the scene; those individuals did not engage in protected conduct and
were not arrested. (Id. at § 19-20.) Extending the claim to CPD, Plaintiff attributes the
arrest to a policy or custom of CPD that “exhibits deliberate indifference to the protection
of citizens’ First Amendment rights.” (Id. at § 44.)
Viewing these allegations in a light most favorable to Plaintiff, the Court finds that
Plaintiff has stated a claim for First Amendment retaliation that is plausible on its face.
Rather than merely recite elements or state legal conclusions, Plaintiff has alleged facts
that sufficiently plead all elements of the claim. He alleges that: (1) he recorded the police,
13

which some courts in this circuit have found to be protected activity; (2) the police
arrested him, an adverse action that not only would deter others from engaging in that
conduct, but that did prevent him from continuing the conduct; and (3) the police
arrested him because of his recording, as there were others who entered the scene and
were not arrested. Although this Court declines to adopt a stance on whether recording
police is a protected activity, it still finds that, if one exists, Plaintiff has plausibly alleged
that he engaged in such activity. Further, his claim that other similarly situated
individuals who did not engage in the protected conduct were not arrested overcomes
any probable cause defense to the claim at this stage of litigation. See Rideout, 691 F. Supp.
3d at 826. Therefore, dismissal of Plaintiff's First Amendment claim is not appropriate at
this time.
c. Abuse of Process (Count 6)
Defendants next challenge Plaintiff's claim for abuse of process. (Motion, Doc. 13,
Pg. ID 44.) Plaintiff pleads, in the alternative from his malicious prosecution claim, a claim
for abuse of process under Ohio common law. (Compl., Doc. 1, 63-68.) The elements
of this tort are: “(1) that a legal proceeding has been set in motion in proper form and
with probable cause; (2) that the proceeding has been perverted to attempt to accomplish
an ulterior purpose for which it was not designed; and (3) that direct damage has resulted
from the wrongful use of process.” Voyticky v. Village of Timberlake, Ohio, 412 F.3d 669, 677
(6th Cir. 2005) (quoting Yaklevich v. Kentp, Schaeffer, & Rowe Co., et al., 626 N.E.2d 115, 116
(Ohio 1994)). Defendants state that Plaintiff merely supports his claim for abuse of
process with “conclusory allegations.” (Motion, Doc. 13, Pg. ID 44.) Specifically,
14

Defendants assert that the claim will not survive a motion to dismiss “when it is
supported only by conclusory allegations regarding the defendants’ ulterior motives with

no facts to support those contentions.” (Id. (quoting Graham v. Best Buy Stores, LP, 298 F.
App’x 487, 497 (6th Cir. 2008)).) And, “there is no liability for abuse of process where the
defendant has done nothing more than carry out the process to its authorized conclusion,
even though with bad intentions.” (Id. (quoting Graham, 298 F. App’x at 497) (cleaned
up).) Defendants argue that Plaintiff has only provided “a threadbare recital of the
elements,” and has not alleged any facts to support his claim. (Id.) Furthermore, according
to Defendants, Sgt. Kunz did nothing more than “carry out [Plaintiff]’s arrest and
prosecution until it was ultimately dismissed.” (Id.)
In response, Plaintiff contends that his abuse of process claim must be viewed “in
tandem with his other allegations, specifically his First Amendment [r]etaliation claim.”
(Response, Doc. 16, Pg. ID 178.) He points out that he specifically alleges the nature of
Defendants’ ulterior purpose: “deterring [Plaintiff] from engaging in his protected [First]
Amendment right to record the police.” (Id.; see also Compl., Doc. 1, { 65; Bickley v. Dish
Network, LLC, 751 F.3d 724, 734 (6th Cir. 2014) (“It is not enough to allege an ulterior
purpose without explaining what that purpose actually was.”).) Both Plaintiff and
Defendants cite Stanley v. Historic Newark Basket, No. 2:22-CV-1783, 2023 WL 2652567 (S.D.
Ohio Mar. 27, 2023), in their briefings. Plaintiff focuses on Stanley’s assertion that “abuse
of process occurs when someone attempts to achieve through use of the court that which
the court itself is powerless to order.” 2023 WL 2652567, at *6; (see also Response, Doc. 16,
Pg. ID 179). Meanwhile, Defendants point to the next line in Stanley, which says that “a
15

claim for abuse of process does not arise when a party uses the court to pursue a legal
remedy that the court is empowered to give.” Id.; (see also Reply, Doc. 18, Pg. ID 240.)
Defendants claim that Plaintiff's Complaint “fails to allege facts showing that Sgt. Kunz
or the City sought to achieve any collateral purpose” and thus, Defendants only sought
a legal remedy that the court is empowered to give. (Reply, Doc. 18, Pg. ID 240; see also
Jaiyeola v. Bryan, No. 23-1675, 2024 WL 3549163, at *2 (6th Cir. Feb. 12, 2024) (“Because
[the plaintiff] failed to allege facts showing [the defendant] sought to achieve any
collateral purpose ..., the district court properly dismissed this claim.”).)
But, such a bare allegation like the one in Stanley is not present here. Plaintiff
specifically alleged that Defendants’ arrest was “perverted to accomplish the malicious
purpose of deterring [him] from engaging” in his First Amendment right to record the
police. (Compl., Doc. 1, { 65.) He supports this claim with other allegations throughout
his Complaint where he describes that individuals on the scene who did not exercise their
First Amendment rights were not arrested for obstructing police business, and that, but
for his exercise of this right, he would not have been arrested either. (Id. at □□□ 42-43.) He
then alleges that, as a result of this abuse of process, he has suffered damages, including
“emotional distress, medical expenses, pain and suffering, and other damages.” (Id. at {J
21, 66.) Thus, viewed in a light most favorable to him, these allegations support an abuse
of process claim.
d. Injunctive Relief (Count 7)
Defendants also challenge Plaintiff's request for injunctive relief. (Motion, Doc. 13,
Pg. ID 45.) As Plaintiff points out, though, Defendants “erroneously confuse [his] request
16

for injunctive relief with a request for a preliminary injunction.” (Response, Doc. 16, Pg.
ID 179.) Indeed, injunctive relief is a form of requested relief under Federal Rule of Civil
Procedure 8(a)(3), not its own claim. Waleska A. Velez, et al. v. Cuyahoga Metro. Housing
Auth., et al., No. 1:13-CV-1022, 2014 WL 847406 (N.D. Ohio Mar. 3, 2014). As such, at the
pleading stage, Rule 8(a)(3) requires only “a demand for relief sought,” as compared to
the more stringent standard for standalone claims under Rule 8(a)(2). Id. A plaintiff need
only state the demand and type of relief requested to make the demand. Id.; see also Fed.
R. Civ. P. 8(a)(3). Plaintiff has sufficiently pled his demand for injunctive relief under Rule
8(a)(3). (See Compl., Doc. 1, {J 69-70.) In fact, Defendants recognize this in their Reply,
altering their argument to seek dismissal of the claim for relief because Plaintiff’s other
claims must be dismissed. (Reply, Doc. 18, Pg. ID 242.) The Court finds that Plaintiff's
Complaint properly demands injunctive relief; as the other claims have not been
dismissed, so too shall his demand for relief proceed.
e. Sgt. Kunz’s Qualified Immunity Defense (All Counts)
Finally, Defendants assert that Sgt. Kunz is entitled to qualified immunity and all
claims against him must be dismissed. (Motion, Doc. 13, Pg. ID 46-47.) “Qualified
immunity protects government officials like . . . police officers from being liable for
money damages if their conduct did not violate clearly established statutory or
constitutional rights of which a reasonable person would know.” Novak v. City of Parma,
932 F.3d 421, 426 (6th Cir. 2019) (cleaned up). For a right to be clearly established, the
“constitutionality of the officer’s conduct must have been beyond debate in the particular
circumstances before him.” Id. (cleaned up).
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Defendants claim that, because Plaintiff has failed to allege that Sgt. Kunz violated
his constitutional rights, or that the rights were clearly established, qualified immunity
protects Sgt. Kunz from suit. (Motion, Doc. 13, Pg. ID 47.) Plaintiff, in response, argues
that Set. Kunz did violate his First Amendment right to record the police, and that right
is clearly established, even though the Sixth Circuit has not expressly announced the
right. (Response, Doc. 16, Pg. ID 180-81.) The central question in the analysis is “whether
the state of the law gave the Defendants fair warning that their alleged treatment of
[Plaintiff] was unconstitutional.” (Id. (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(cleaned up)).) Plaintiff states that Defendants incorrectly characterize the state of the law
as unclear because the Sixth Circuit’s silence on the issue does not create a circuit split on
the existence of the right. (Id.) In their Reply, Defendants point out that the Sixth Circuit
emphasizes the need for specificity over generality when defining a clearly established
right for the purpose of determining qualified immunity. (Reply, Doc. 18, Pg. ID 241-42.)
Thus, in Defendants’ estimation, Plaintiff has failed to point to clearly defined case law
establishing the right to record police while in the roadway. (Id.)
The Court, however, “must be mindful of the stage of the proceedings” when
addressing qualified immunity as a defense. Novak, 932 F.3d at 426. While the Sixth
Circuit highlights the importance of resolving “qualified immunity claims at the earliest
possible point of litigation, we cannot resolve such claims when we need more factual
development to do so.” Id. Indeed, “it is generally inappropriate for a district court to
grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.” Hart v. Hillsdale
Cnty., 973 F.3d 627, 635 (6th Cir. 2020) (cleaned up). Instead, “it is preferable to resolve
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the threshold question of a government officer’s entitlement to qualified immunity at
summary judgment, not dismissal under Rule 12.” Venema v. West, 133 F.4th 625, 632 (6th
Cir. 2025) (cleaned up). Though this preference is only a “general one, not an absolute
one,” a court should resolve the question of qualified immunity prior to discovery only
if “plaintiffs present clearly insubstantial claims against government officials.” Freeman,
667 F. Supp. 3d at 656 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)); Siefert v.
Hamilton Cnty., 951 F.3d 753, 761 (6th Cir. 2020)) (cleaned up). As explained above,
Plaintiff has not presented “clearly insubstantial claims” regarding his constitutional
claims; indeed, his claims are well-pled. As such, the Court refrains from resolving Sgt.
Kunz’s qualified immunity claim until the factual record has been developed.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ Motion to Dismiss for
Failure to State a Claim (Doc. 13). Plaintiff's claims SHALL PROCEED.
IT IS SO ORDERED.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

JUDGE MATTHEW W. McFARLAND

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11135499. Public record. Not legal advice.