Opinion
Case No. 1:19-cv-460
08-05-2019
BRANDON NUTT, Plaintiff, v. P.O CHRISTOPHER SETA, et al., Defendants.
Dlott, J.
ORDER AND REPORT AND RECOMENDATION
Plaintiff, an inmate at the Madison Correctional Institution, has filed a prisoner civil rights complaint pursuant to 42 U.S.C. § 1983. By separate Order, plaintiff has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This matter is before the Court for a sua sponte review of the complaint to determine whether the complaint, or any portion of it, should be dismissed because it is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief. See Prison Litigation Reform Act of 1995 § 804, 28 U.S.C. § 1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
In enacting the original in forma pauperis statute, Congress recognized that a "litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To prevent such abusive litigation, Congress has authorized federal courts to dismiss an in forma pauperis complaint if they are satisfied that the action is frivolous or malicious. Id.; see also 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint may be dismissed as frivolous when the plaintiff cannot make any claim with a rational or arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 328-29 (1989); see also Lawler v. Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990). An action has no arguable legal basis when the defendant is immune from suit or when plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or "wholly incredible." Denton, 504 U.S. at 32; Lawler, 898 F.2d at 1199. The Court need not accept as true factual allegations that are "fantastic or delusional" in reviewing a complaint for frivolousness. Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010) (quoting Neitzke, 490 U.S. at 328).
Congress also has authorized the sua sponte dismissal of complaints that fail to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and 1915A(b)(1). A complaint filed by a pro se plaintiff must be "liberally construed" and "held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). By the same token, however, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Hill, 630 F.3d at 470-71 ("dismissal standard articulated in Iqbal and Twombly governs dismissals for failure to state a claim" under §§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded factual allegations as true, but need not "accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Although a complaint need not contain "detailed factual allegations," it must provide "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id. at 557. The complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson, 551 U.S. at 93 (citations omitted).
In the complaint, plaintiff brings a claim of malicious prosecution—and other related federal and state law claims—against defendants based on the initiation of a search warrant and criminal proceedings against him. Specifically, plaintiff alleges that on October 12, 2015 defendants officer Christopher Seta and Sergeant Barge, used knowingly false and conclusory statements to manufacture probable cause to search a residence that resulted in ten drug-related charges being brought against plaintiff. Plaintiff claims that on June 10, 2018 he was acquitted of all charges stemming from the search. (Doc. 1-2, Complaint at PageID 19-20).
As to the remaining defendants, plaintiff seeks to hold defendants Vollner, Greene, and John Doe officers liable for their failure to intervene. He claims these defendants had a duty to review Seta's evidence, but "failed to intervene in order to prevent the Constitutional violations of my rights." (Id. at PageID 21).
Plaintiff also names the Cincinnati Police Department District 2 as a defendant to this action, based on a theory of municipal liability. (See id.).
Plaintiff claims that he suffered emotional distress in fighting the charges against him for three years. During this time, plaintiff claims he suffered from seizures and thoughts of suicide. According to plaintiff, as a result of this incident he has been diagnosed with epilepsy and sought mental health treatment for depression and stress.
For relief, plaintiff seeks monetary damages. (Id. at PageID 22).
At this stage in the proceedings, without the benefit of briefing by the parties to this action, the undersigned concludes plaintiff's claims against defendants Seta and Barge in their individual capacities are deserving of further development and may proceed at this juncture. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). However, plaintiff's remaining claims should be dismissed for failure to state a claim upon which relief may be granted.
First, to the extent that plaintiff has named the Cincinnati Police Department District 2 or sought to hold the named defendants liable in their official capacities, these claims should be dismissed. Plaintiff has failed to state a viable claim against the Cincinnati Police Department because it is not an entity that is capable of being sued. See Davis v. Bexley Police Dep't, No. 2:08cv750, 2009 WL 414269, at *2 (S.D. Ohio Feb. 17, 2009) (citing Jones v. Marcum, 197 F. Supp.2d 991, 997 (S.D. Ohio 2002)); see also Schaffner v. Pell, No. 2:10cv374, 2010 WL 2572777, at *2 (S.D. Ohio June 21, 2010) (citing Tysinger v. Police Dep't of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)) ("A police department is not a juridical entity subject to suit under Ohio law."). As the district court explained in Davis, supra, 2009 WL 414269, at *2:
Police departments are not independent government entities. They are only the vehicles through which municipalities fulfill their policing functions. Williams v. Dayton Police Dep't, 680 F.Supp. 1075, 1080 (S.D. Ohio 1987). Thus, police departments are not proper § 1983 defendants as they are "merely sub-units of the municipalities they serve." Jones, 197 F.Supp. at 1080.
To the extent that plaintiff has bought this action against all defendants in their official capacities and seeks to hold the City of Cincinnati liable for defendants' actions, he has failed to allege that any named defendant acted pursuant to a policy or custom of the city. The claims against the defendant police officers and sergeant are essentially claims against the entity for which they are agents, namely the City of Cincinnati. "It is firmly established that a municipality, or . . . a county, cannot be held liable under § 1983 for an injury inflicted solely by its employees or agents." Gregory v. Shelby County, Tenn., 220 F.3d 433, 441 (6th Cir. 2000) (citing Monell v. Dep't. of Social Serv., 436 U.S. 658, at 694 (1978)). To state a claim for relief against the City of Cincinnati for plaintiff's alleged injuries, the complaint must allege facts showing that the misconduct giving rise to plaintiff's injuries was the result of a policy, statement, regulation, decision or custom promulgated by the City. Bright v. Gallia Cnty., Ohio, 753 F.3d 639, 660 (6th Cir. 2014) (citing Shamaeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir. 2003)); Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). See Monell, 436 U.S. at 694; Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996). "The 'official policy' requirement [of Monell] was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original). "[P]laintiff must adequately plead (1) that a violation of a federal right took place, (2) that the defendants acted under color of state law, and (3) that a municipality's policy or custom caused that violation to happen." Bright, 753 F.3d at 660 (citing Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008)). See also Polk County v. Dodson, 454 U.S. 312 (1981) (municipal policy must be "moving force" behind constitutional deprivation).
Plaintiff's complaint fails to allege any facts showing that the alleged actions taken by defendants stemmed from a particular policy, custom, or practice of the City of Cincinnati that caused a violation of plaintiff's civil rights. Therefore, plaintiff's complaint fails to state a claim upon which relief may be granted against defendants in their official capacities.
Plaintiff's claims seeking to hold defendants Vollner, Greene, and John Doe officers liable for failing to intervene or for failure to remedy the alleged unconstitutional actions of defendants Seta or Barge—who plaintiff alleges had personal knowledge and involvement in allegedly using false information to obtain a search warrant—should also be dismissed. Section 1983 liability is premised on active unconstitutional behavior and not a mere failure to act. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). The mere fact that these defendants did not "review Seta's evidence" or "participate[d] as witnesses in the arrest and prosecution" (see Doc. 1, Complaint at PageID 22) is insufficient to hold these defendants liable under § 1983.
Because plaintiff has not made any allegations against these defendants besides their witnessing the conduct of other defendants or failing to intervene, plaintiff's remaining claims against these defendants (including his deprivation of liberty, emotional distress, and gross negligence claims) (see Doc. 1-2, Complaint at PageID 21-22) also fail to state a claim upon which relief may be granted and should be dismissed. --------
Plaintiff's conspiracy claims against these defendants should also be dismissed. It is well-settled in the Sixth Circuit that conspiracy claims must be pleaded with "with some degree of specificity, and vague and conclusory allegations unsupported by material facts are not sufficient to state a claim." Hamilton v. City of Romulus, 409 F. App'x 826, 835 (6th Cir. 2010); see also Moldowan v. City of Warren, 578 F.3d 351, 395 (6th Cir. 2009) (citing Gutierrez v. Lynch, 826 F.2d 1534 (6th Cir. 1987)) (affirming dismissal of conspiracy claims under 42 U.S.C. § 1983 because the plaintiff failed to plead the claims with the "requisite specificity"). Here, construing the complaint liberally, plaintiff's factual allegations are insufficient to suggest that the defendants shared a conspiratorial objective or otherwise planned together to deprive him of a constitutionally-protected right. Therefore, plaintiff's vague, unsubstantiated and conclusory claim based on a conspiracy theory lacks the requisite specificity to state a cognizable claim under 42 U.S.C. § 1983.
Accordingly, in sum, plaintiff may proceed with his individual capacity claims against defendants Seta and Barge. See 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b). Having found that the remaining allegations in the complaint fail to state a claim upon which relief may be granted, plaintiff's remaining claims should be dismissed.
IT IS THEREFORE RECOMMENDED THAT:
The complaint be DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), with the exception of plaintiff's individual capacity claims against Seta and Barge.
IT IS THEREFORE ORDERED THAT:
1. The United States Marshal shall serve a copy of the complaint, summons, the Order granting plaintiff in forma pauperis status, and this Order and Report and Recommendation upon defendants P.O. Christopher Seta and Sergeant Michael Barge as directed by plaintiff, with costs of service to be advanced by the United States.
2. Plaintiff shall serve upon defendants or, if appearance has been entered by counsel, upon defendants' attorney(s), a copy of every further pleading or other document submitted for consideration by the Court. Plaintiff shall include with the original paper to be filed with the Clerk of Court a certificate stating the date a true and correct copy of any document was mailed to defendants or defendants' counsel. Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or which fails to include a certificate of service will be disregarded by the Court.
3. Plaintiff shall inform the Court promptly of any changes in his address which may occur during the pendency of this lawsuit.
s/ Stephanie K . Bowman
Stephanie K. Bowman
United States Magistrate Judge
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to this Report & Recommendation ("R&R") within FOURTEEN (14) DAYS after being served with a copy thereof. That period may be extended further by the Court on timely motion by either side for an extension of time. All objections shall specify the portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law in support of the objections. A party shall respond to an opponent's objections within FOURTEEN DAYS after being served with a copy of those objections. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).