Opinion
Case No. 3:06-cv-129.
August 30, 2006
ORDER GRANTING REQUEST TO FILE AMENDED COMPLAINT; REPORT AND RECOMMENDATIONS
This case is before the Court on Motion to Dismiss of Defendant Montgomery County, Ohio, originally filed in the Montgomery County Common Pleas Court on April 11, 2006, and then re-filed in this Court after removal on May 5, 2006 (Doc. No. 5). Plaintiffs' responsive Memorandum in Opposition and Request for Leave to File Amended Complaint was initially filed in the Common Pleas Court on April 28, 2006, but was not filed in this Court until August 21, 2006 (Doc. No. 11). Montgomery County filed a Reply Memorandum in support on May 5, 2006 (Doc. No. 6).
Montgomery County makes no objection to Plaintiffs' being granted leave to amend and their request to do so is GRANTED. Plaintiffs shall re-caption the proposed amended complaint attached to Doc. No. 11 to show that it is being filed in this Court and shall file it electronically forthwith. In its Reply Memorandum, Montgomery County insists that the Amended Complaint does not state a claim for relief. The additional analysis in this Report and Recommendations is therefore directed to the Amended Complaint.
Upon the authority cited by Montgomery County in both its original and reply memoranda, Montgomery County is not sui juris and should be dismissed without prejudice because it is not a suable entity. The further analysis in this Report relating to Montgomery County is premised on the substitution of the Board of County Commissioners.
A motion to dismiss for failure to state a claim for relief is to be considered under Fed.R.Civ.P. 12(b)(6) whose purpose is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Put another way, "The purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; it is not a procedure for resolving a contest about the facts or merits of the case." Wright Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1356 at 294 (1990).
The test for dismissal under Fed.R.Civ.P. 12(b)(6) is a stringent one:
[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S. Ct. 2891, 125 L. Ed. 2d 612 (1993), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Hishon v. King Spalding, 467 U.S. 69, 104 S. Ct. 229, 81 L. Ed. 2d 59 (1984); Monette v. Electronic Data Systems, Inc., 90 F.3d 1173, 1189 (6th Cir. 1996). For purposes of the motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Westlake v. Lucas, 537 F.2d 857 (6th Cir. 1976); Craighead v. E.F. Hutton Co., 899 F.2d 485 (6th Cir. 1990). To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), "a . . . complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988); followed Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236 (6th Cir, 1990); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101 (6th Cir. 1995). The Court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). Bare assertions of legal conclusions are not sufficient. Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996); Sogevalor S.A. v. Penn Central Corp., 771 F. Supp. 890, 893 (S.D. Ohio 1991). It is only well-pleaded facts which are construed liberally in favor of the party opposing the motion to dismiss. Id., citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); see also Wright Miller, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 1357 at 311-318 (1990).
The individual Defendants in this case are City of Trotwood Detective Brad Williams and John Does 1-10. With respect to these alias defendants, Plaintiffs assert:
Defendants John Does are individuals and/or entities whose names could not be ascertained with any certainty prior to filing this Complaint, and have liability in any manner with respect to the following causes of action because they supervised or assisted in the actions of the named Defendants, and/or engaged in separate actions of a similar nature.
(Amended Complaint, ¶ 8.) Plaintiffs claim that the names of the John Does are unknown and federal practice allows the use of a "John Doe" designation provided that the person is otherwise sufficiently identified so as to permit service of process. Keno v. Doe, 74 F.R.D. 587 (D.N.J. 1977); see generally Wright Miller, Federal Practice and Procedure: Civil 3rd § 1321.
However, Plaintiffs have also not alleged any operative facts with respect to any such persons or even sufficient facts to enable them to be served with process. None of the first sixty-four paragraphs of the Amended Complaint, which are the factual allegation paragraphs incorporated by reference in the balance of the pleading, allege any act or omission by any particular "John Doe." Paragraphs 17-21, 40, 41, 43, 44, and 47 refer to acts of various unidentified Trotwood police officers, but do not state that any of them is one of the unidentified John Does, so that those officers and their employing entity cannot tell if they are alleged to have violated Plaintiffs' rights. Additional factual allegations about actions by persons other than Defendant Williams are made in the passive voice. See, e.g., ¶ 54 ("prosecution . . . was based"), ¶ 55 ("simplest of investigations by someone other than Defendant Williams . . . would have revealed"), ¶ 56 ("The case against Robin was then used as leverage. . . ."). However, none of the John Does is said to have committed any of these acts, nor are the persons who did or allegedly should have done these acts otherwise identified. Instead, all of the Defendants are gathered up in one undifferentiated lump and all collectively are alleged to have violated Plaintiffs' rights. These allegations against the John Does do not satisfy the minimal notice pleading requirements of Fed.R.Civ.P. 8. Possible unstated claims against unidentified John Does are ignored for purposes of further analysis in this Report because the Amended Complaint does not give the Board of County Commissioners any notice of any acts or omissions by any of its agents or employees which would be actionable by the Plaintiffs.
As part of her First Cause of Action for violation of her First Amendment rights, Plaintiff alleges:
Defendants John Does, Trotwood, Montgomery County, and Montgomery County Board of County Commissioners are liable to Plaintiff for her injuries for acquiescing in the wrongdoing of Defendants Williams and John Does, in failing to investigate and intervene, in failing properly to train Defendants in the performance of their duties, in failing to properly discipline and terminate employees such as Defendants Williams and John Does, and because authorized decisionmakers of Defendants Trotwood, Montgomery County, and Montgomery County Board of County Commissioners acquiesced in, approved of, or decided to violate Plaintiffs' [sic] rights.
(Amended Complaint, ¶ 67.) This language is copied verbatim in ¶ 72 in the Second Cause of Action for illegal seizure, in ¶ 77 in the Third Cause of Action for illegal arrest, in ¶ 82 in the Fourth Cause of Action for malicious prosecution, and in ¶ 93 in the Sixth Cause of Action for violation of due process rights. In the Seventh Cause of Action for "refusing or neglecting to prevent" Fourth and Fourteenth Amendment violations, Plaintiffs allege that Defendant Williams and the John Does were employees of either Trotwood or Montgomery County and controlled by either one of them or some other John Doe.
Plaintiffs defend their pleading by stating:
The decisionmaker does not necessarily have to be the elected Prosecutor for Montgomery County. This is one reason why the Complaint contains John Does. As discovery proceeds, additional parties may need to be added as Defendants. Defendant Montgomery County stated Plaintiffs' "Complaint alleges with a high degree of specificity the factual basis for the Plaintiffs' claim of unlawful conduct on the part of the City of Trotwood, its police department, and Det. Williams." (Defendants' Motion to Dismiss, at 3.) It is unbelievable that Defendant Montgomery County would not understand how such facts also implicate itself in that it was the entity in charge of subsequent prosecution.
(Memorandum in Opposition, Doc. No. 11, at 4-5.) The Court however does not find it unbelievable that the County cannot understand — from the Amended Complaint — what it is alleged to have done. Plaintiffs obviously are alleging malicious prosecution. But are they alleging the Board of County Commissioners had a duty to supervise or train or discipline one or more assistant county prosecutors who proceeded with the case? The Amended Complaint doesn't say that. Are they alleging that one or more agents of the Board of County Commissioners should have supervised Defendant Williams, an employee of a municipal corporation? The Amended Complaint doesn't say that.
The Court appreciates that Plaintiffs may not without discovery know what persons were involved at every stage of the prosecution and thus may not be able to identify everyone who was involved in any action or decision to violate their rights. But at this point they have not pled any operative facts by anyone associated with Montgomery County whom they have alleged violated their rights. Obviously, all parties will be required to do extensive discovery to determine who was involved with Plaintiff Robin Roseborough's case, but Montgomery County is entitled to more detail at the pleading stage so it at least knows what the outside parameters of the alleged liability are.
It is accordingly respectfully recommended that the Motion to Dismiss be granted unless, prior to the time objections are due to this Report under Fed.R.Civ.P. 72, Plaintiffs have moved to amend and tendered an amended complaint which at least identifies by description (or by name if known) the person or persons associated with Montgomery County who acted in this matter and how their acts or omissions allegedly violated Plaintiffs' rights.
The Court assumes, for example, that the names of the assistant county prosecutors assigned to Ms. Roseborough and Dr. Corney's cases are known to Plaintiffs or readily discernible from the public record.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within ten days after being served with this Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically extended to thirteen days (excluding intervening Saturdays, Sundays, and legal holidays) because this Report is being served by one of the methods of service listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within ten days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir., 1981); Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).