Opinion
No. C2-01-528
August 8, 2002
OPINION AND ORDER
In an Opinion and Order filed March 27, 2002 (Doc. 41), this Court made a number of rulings respecting various named defendants and counts of Plaintiff's Amended Complaint (Doc. 7). The net effect of that order was to dismiss the two defendant counties, Fairfield and Muskingum, their Sheriffs and unnamed other officials, with prejudice, to dismiss the two defendant judicial officers, Magistrate Trotter and Judge Knapp, with prejudice, as to any damage claims, and to dismiss Plaintiff's ex-wife, Dawn Sterling, and her attorney, Sandra Davis, with prejudice as to Counts I and V and without prejudice as to Counts III, IV, and VII. Doc. 41, p. 18. Based on these rulings and because the dismissals of the latter two defendants were sua sponte, the Court's order also expressly permitted Plaintiff to seek leave "to amend Counts III, IV, and/or VII . . . to set forth . . . claims upon which . . . [relief could be granted] under 42 U.S.C. § 1983 and/or § 1985 against one or more of the defendants not dismissed with prejudice." Id. 18-19.
The Court's order also dismissed any equitable claims against these judicial officers, but for reasons explained therein did so without prejudice.
Counts II and VI at most assert state law claims that the Court declined to consider in view of its dismissal of all federal claims.
Plaintiff has now filed such a second amended complaint (Doc. 45) in which he seeks both to recover damages and equitable relief against Defendants Sterling and Davis under amended counts III, IV, and VII. The Defendants have all filed Answers to this second amended complaint (Docs. 46, 47, 48), and in response to Plaintiff's motion for leave to file, Defendant Davis has requested that the Court reconsider her earlier Motion for Summary Judgment (Doc. 30) with respect to this latter amended complaint. In view of the Court's previous rulings with respect to Plaintiff's pleadings and its continuing duty to examine questions of jurisdiction sua sponte, the Court deems it appropriate first to consider whether this latest complaint has succeeded in remedying the pleading deficiencies that led to dismissal of the earlier forms of the three counts in question. For reasons explained below, the Court concludes that it has not.
See Anderson v. Charter Township of Ypsilanti, 71 F. Supp.2d 730, 733 (E.D. Mich. 1999) (citing Michler v. Nimishillen Tuscarawas Ry. Co., 13 F.3d 184, 189 (6th Cir. 1993)).
COUNT III
In its previous ruling on Count III, the Court pointed out the alleged violation of 42 U.S.C. § 1983 required a sufficient allegation of action under color of state law, that use of state courts by private litigants and their attorneys did not, by itself, amount to state action, and that the general and conclusory allegations of conspiracy among Defendants Dawn Sterling, Sandra Davis and one or both of the two judicial officers were not a sufficient allegation of action under color of state law for Plaintiff to proceed under § 1983. Doc. 41, pp. 9, 12-13. The most recent amended complaint does not remedy this deficiency. Most of its general factual allegations (¶¶ 7-21) are no more than repetitions from the first amended complaint. Paragraphs 7 through 15, 17, and 19 are exactly the same as paragraphs 12 through 20, 22, and 60 in the former pleading, and paragraphs 16 and 18 have only minor and inconsequential changes from former paragraphs 21 and 23. Paragraph 20 of the second amended complaint repeats the allegations of former paragraph 66 and adds allegations respecting Defendants Sterling and Davis without mentioning any state actor. Only paragraph 21 mentions a person who might be acting under color of state law, Assistant Prosecutor Vinsel, but he is not alleged to have been a co-conspirator with Defendants Sterling or Davis or to have acted in violation of Plaintiff Sterling's federal constitutional or statutory rights.
Further, the specific allegations of Plaintiffs new Count III (¶¶ 22-25) are even less specific in identifying a state actor than were those in the first amended complaint. The new paragraph 22 is a repetition of the former paragraph 58, but former paragraphs 59, 60, and 61, which did make general allegations involving a state magistrate and a state judge are not repeated, let alone enlarged upon. Instead, a new paragraph 23 mentions only Defendants Sterling and Davis and alleges that "without ever having a witness testifying [sic] or holding a hearing, andunder false pretenses," they wrongly obtained a Civil Protection Order denying the Plaintiff child visitation, in violation of his federal and state constitutional rights and state law. Doc. 45, ¶ 23. The new Count III is completed with paragraphs 24 and 25, which are simply repetitions of the conclusory allegations of paragraphs 62 and 63 of the first amended complaint. It must be clear, therefore, that Plaintiffs the second amended complaint, like the first one, does not contain the specific allegations of action under color of state law necessary for him to proceed on the claim in Count III of a violation of 42 U.S.C. § 1983.
COUNT IV
In ruling that Count IV of Plaintiff's first amended Complaint should be dismissed, the Court pointed out that in order to invoke the protection of 42 U.S.C. § 1985, Plaintiff needed to allege that the conspiracy complained of "was motivated by some racial or perhaps otherwise class-based discriminatory animus" and that Plaintiff had made no allegations in his pleadings that could conceivably be construed to support such a claim. Doc. 45, pp. 14-15. The same remains the case with respect to Count IV of Plaintiff's second amended complaint. Indeed, the only addition to the specific allegations in the new Count IV (¶¶ 26-28) is a single sentence in ¶ 27 alleging that Defendant Davis had taken part in tampering with evidence, which Defendant Sterling had admitted in a deposition. Thus, Count IV continues to be deficient of the critical class-based discrimination allegations necessary for proceeding under § 1985.
COUNT VII
Finally, in ruling that Plaintiff's prior Count VII should be dismissed, the Court pointed out that the only possible specific jurisdictional basis for proceeding in this Court appeared to be 42 U.S.C. § 1983, but that, like Count III, there were no sufficient allegations of action under color of state law. Doc. 45, pp. 16-17. In his second amended complaint, Plaintiff reincorporates the previous allegations of ¶ 29 of the former pleading, but again, as pointed out above in the discussion of Count III, none of those allegations, general or specific, amount to a sufficient allegation of action under color of state law for Plaintiff to proceed on a claim under § 1983. The only other allegations of Plaintiffs new Count VII are contained in paragraph 30, and they too contain nothing that could be construed to action under color of state law. Consequently, Count VII continues in failing to state a claim upon which relief can be granted by this Court.
Consistent with the above, the Court finds that Plaintiff's second Amended Complaint (Doc. 45) fails to state any claims upon which this Court can grant relief, and the same is therefore DISMISSED. Treating Defendant Davis' request to again consider her earlier motion for summary judgment (Doc. 30) as a motion, the Court DENIES the same as moot. Further, upon the basis of these rulings and those contained in the Court's Opinion and Order of March 27, 2002, the Clerk is directed to enter JUDGMENT dismissing this case.
IT IS SO ORDERED.