Bickerstaff v. Lucarelli et al

Filing 85

Opinion and Order. Defendant Cheryl McDuffie's Motion to Dismiss (Related doc # 27 ) is granted. Defendant City of Cleveland's Motion to Dismiss (Related doc # 28 ) is granted. Defendants Dennis Hill and Michael Legg's Motion to Dismiss (Related doc # 29 ) is granted. Judge Christopher A. Boyko on 3/27/2015. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BRENDA BICKERSTAFF,
Plaintiff,
vs.
VINCENT LUCARELLI, et al.,
Defendants.

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CASE NO. 1:14CV831
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter is before the Court on the Motions of Defendants, Cheryl McDuffie
(“McDuffie”) (ECF #27), Dennis Hill (“Hill”) and Michael Legg (“Legg”) (ECF #29), and
the City of Cleveland (ECF #28) to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief can be granted. For the following reasons, the Court grants
Defendants’ Motions to Dismiss.
I. FACTS
Plaintiff Brenda Bickerstaff (“Bickerstaff”) is a private investigator for criminal
defense law firms in Northeast Ohio. In March 2012, Bickerstaff was conducting an
investigation on behalf of a defendant accused of breaking into the house of Jasmine Harris

(“Harris”). Bickerstaff spoke to Harris and Harris agreed to be interviewed by Bickerstaff.
Shortly after speaking with Harris, Bickerstaff received a phone call from Defendant Vincent
Lucarelli (“Lucarelli”) who told her to discontinue her contact with Harris.
At the time of Bickerstaff’s investigation, Lucarelli was a detective with the Cleveland
Division of Police. Bickerstaff alleges that Lucarelli and Harris were involved in a “sexual
and/or personal relationship” based upon text messages and photos obtained by Bickerstaff
that were sent from Lucarelli’s cell phone.
Lucarelli eventually brought criminal charges against Bickerstaff for intimidation of a
crime victim or witness and telecommunications harassment. On April 13, 2012, a grand jury
indicted Bickerstaff on these charges. As a result, Bickerstaff was required to retain a lawyer,
appear for arraignment, post bond and undergo booking and processing. The criminal
proceedings against Bickerstaff were dismissed in her favor on May 24, 2012.
II. PROCEDURAL HISTORY
On March 21, 2014, after her original Complaint was dismissed without prejudice,
Bickerstaff re-filed her Complaint in Cuyahoga County Common Pleas Court against the
aforementioned defendants and a number of John Does. On April 17, 2014, the City of
Cleveland removed the case to the United States District Court, Northern District of Ohio,
Eastern Division (ECF #1). Bickerstaff filed her Amended Complaint on June 17, 2014
(ECF #10). In her Amended Complaint, Bickerstaff asserts claims under the Ohio Revised
Code, Ohio common law, the United States Constitution, and 42 U.S.C. § 1983, alleging
malicious prosecution, abuse of process, retaliation, supervisory liability, municipal liability,
reckless, wanton or willful conduct and civil conspiracy.

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A.

Defendant Cheryl McDuffie’s Motion to Dismiss
On July 22, 2014, McDuffie moved to dismiss all claims asserted against her by

Bickerstaff (ECF #27). On September 2, 2014, Bickerstaff responded and clarified that she
was only seeking redress from McDuffie for Malicious Prosecution (Count I), Abuse of
Process (Count II), Reckless, Wanton, or Willful Conduct/ R.C. § 2921.52 (Count VI), and
Civil Conspiracy (Count VII) (ECF #43). On September 23, 2014, McDuffie replied and
raised two grounds in support of dismissal (ECF #49). First, McDuffie argues that
Bickerstaff’s Amended Complaint fails to demonstrate any plausible claim against her.
Second, McDuffie asserts that she is immune from Bickerstaff’s claims based on the Sixth
Circuit’s doctrine of testimonial immunity.
B.

Defendants Dennis Hill and Michael Legg's Motion to Dismiss
On July 24, 2014, Hill and Legg moved to dismiss Bickerstaff’s claims against them

(ECF #29). On September 2, 2014, Bickerstaff responded (ECF #42). In her Response Brief,
Bickerstaff clarified that she was seeking redress from Hill and Legg, in their official and
individual capacities, for Malicious Prosecution (Count I), Abuse of Process (Count II),
Reckless, Wanton, or Willful Conduct/ R.C. § 2921.52 (Count VI), and Civil Conspiracy
(Count VII). Additionally, Bickerstaff makes a claim only against Hill, in his official and
individual capacity, for Supervisory Liability (Count IV). On September 23, 2014, Hill and
Legg replied and raised three grounds in support of dismissal. First, Hill and Legg argue that
dismissal is proper because Bickerstaff fails to plead factual allegations beyond the
speculative level. Second, Hill and Legg assert that Bickerstaff fails to show that they
participated in or authorized the alleged conduct of Lucarelli. Finally, Hill and Legg argue

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that Bickerstaff fails to show that they violated Bickerstaff’s constitutional rights.
C.

Defendant City of Cleveland’s Motion to Dismiss
On July 24, 2014, the City of Cleveland moved to dismiss all claims made against it

by Bickerstaff (ECF #28). In its Motion, the City of Cleveland raised nine grounds in support
of dismissal. In her Response Brief of September 2, 2014, Bickerstaff clarifies that she is
only asserting claims for Supervisory Liability (Count IV) and Municipal Liability (Count V)
against the City of Cleveland (ECF #41). On September 23, 2014, the City of Cleveland
replied with the understanding that only Counts IV and V applied (ECF #47). In its Reply
Brief, the City of Cleveland argues that dismissal is proper because Bickerstaff’s allegations
of a widespread policy of tolerating misconduct and dishonesty are mere legal conclusions.
Further, the City of Cleveland asserts that Bickerstaff has failed to plead sufficient facts
showing a direct causal link between the alleged municipal policy and her supposed
constitutional injury.
III. LAW & ANALYSIS
A.

Standard of Review
In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the court must accept as

true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89,
93-94 (2007). The court need not, however, accept conclusions of law as true:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled
to relief.” As the Court held in [Bell Atlantic v.] Twombly, 550 U.S. 544,
127 S.Ct. 1955 [(2007)], the pleading standard Rule 8 announces does not
require “detailed factual allegations,” but it demands more than an
unadorned, the-Defendant-unlawfully-harmed-me accusation. Id. at 555.
A pleading that offers “labels and conclusions” or “a formulaic recitation of
the elements of a cause of action will not do.” Id. at 555. Nor does a
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complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557.
To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Id. at 570. 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. Id. at 556. The
plausibility standard is not akin to a “probability requirement,” but it asks
for more than a sheer possibility that a Defendant has acted unlawfully. Id.
Where a complaint pleads facts that are “merely consistent with” a
Defendant’s liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Id. at 557.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
According to the Sixth Circuit, the standard described in Twombly and Iqbal “obliges
a pleader to amplify a claim with some factual allegations in those contexts where such
amplification is needed to render the claim plausible.” Weisbarth v. Geauga Park Dist., 499
F.3d 538, 541 (6th Cir.2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir.2007)).
The court should disregard conclusory allegations, including legal conclusions couched as
factual allegations. Twombly, 550 U.S. at 555.
B.

McDuffie’s Motion to Dismiss is granted.
In her Amended Complaint, Bickerstaff alleges that McDuffie presented Lucarelli’s

paperwork to the grand jury, intentionally omitted exculpatory material facts from the grand
jury, had a text message conversation with Lucarelli about the grand jury and acted in concert
with other police officers to create an environment of rule breaking. Using these allegations,
Bickerstaff seeks four different avenues of redress. The Court finds that Bickerstaff’s
allegations, even taken as true, cannot demonstrate a plausible right of recovery against
McDuffie, and therefore, Bickerstaff’s claims against McDuffie are dismissed.

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1.

Testimonial Immunity

As an initial matter, the Court agrees with Bickerstaff that the doctrine of testimonial
immunity is inapplicable to McDuffie. The Sixth Circuit has made clear that “absolute
testimonial immunity does not relate backwards to protect [a defendant] for any activities he
allegedly engaged in prior to taking the witness stand for his grand jury testimony.” Spurlock
v. Satterfield, 167 F.3d 995, 1001 (6th Cir.1999) (quoting Mastroianni v. Bowers, 160 F.3d
671, 677 (11th Cir.1998)). Bickerstaff’s claims against McDuffie arise out of the actions she
allegedly took prior to her presentation to the grand jury. Therefore, testimonial immunity
does not apply.
2.

Count I - Malicious Prosecution

To prove a malicious prosecution claim under federal law, a plaintiff must show “at a
minimum, that there is no probable cause to justify an arrest or a prosecution.” Voyticky v.
Vill. of Timberlake, Ohio, 412 F.3d 669, 675 (6th Cir. 2005). Under Ohio law, the elements
of malicious prosecution are: (1) malice in instituting or continuing the prosecution; (2) lack
of probable cause; and (3) termination of the prosecution in favor of the accused. Id. at 676
(citing Trussell v. General Motors Corp., 53 Ohio St.3d 142, 559 N.E.2d 732, 736 (1990)).
Bickerstaff’s malicious prosecution claim against McDuffie fails at the outset because
she has not pled sufficient factual allegations that allow the Court to draw the reasonable
inference that probable cause was lacking. In her Amended Complaint, Bickerstaff repeatedly
contends that the “indictment was baseless,” that there was “no probable cause,” and that
McDuffie “intentionally omitted exculpatory material facts.” These allegations, however, are
conclusory allegations couched as factual allegations that the Court must disregard.

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Moreover, Bickerstaff does not dispute that the grand jury indicted her on April 13,
2012. Rather, Bickerstaff contends that McDuffie and the other defendants misled the grand
jury. But it has been settled that “the finding of an indictment, fair upon its face, by a
properly constituted grand jury, conclusively determines the existence of probable cause.”
Barnes v. Wright, 449 F.3d 709, 716 (6th Cir.2006) (citing Higgason v. Stephens, 288 F.3d
868, 877 (6th Cir.2002)). See also Bickley v. FMC Technologies, Inc., 282 F. Supp. 2d 631,
639 (N.D. Ohio 2003) (“The return of an indictment by the grand jury establishes probable
cause.”). Therefore, because Bickerstaff was indicted by the grand jury, and because she
failed to plead sufficient factual allegations that show a lack of probable cause, Bickerstaff’s
malicious prosecution claim against McDuffie is dismissed.
3.

Count II - Abuse of Process

Alternatively, Bickerstaff makes a claim for abuse of process against McDuffie. To
establish an abuse of process claim under Ohio law, a plaintiff must show: (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 process. Bickley, 282
F. Supp. 2d at 639 (citing Yaklevich v. Kemp, Schaeffer & Rowe, 68 Ohio St.3d 294, 298, 626
N.E.2d 115 (1994)). A defendant is not liable 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. at 640.
Bickerstaff asserts that McDuffie is liable for abuse of process because she had an
ulterior purpose. That is, she perverted the grand jury proceeding to frustrate an accused

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defendant’s case via prosecution of the investigator. Similar to her malicious prosecution
claim, Bickerstaff again only pleads legal conclusions consistent with McDuffie’s alleged
liability. The Sixth Circuit has made clear that “an abuse-of-process 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.” Graham v. Best Buy
Stores, L.P., 298 F. App'x 487, 497 (6th Cir. 2008) (citing Hahn v. Star Bank, 190 F.3d 708,
718 (6th Cir.1999)). Bickerstaff’s Amended Complaint is devoid of any facts to support her
contention that McDuffie intended to “frustrate an accused defendant’s case.” Therefore,
Bickerstaff’s abuse of process claim against McDuffie is also dismissed.
4.

Count VI - Reckless, Willful, or Wanton Conduct/ R.C.§ 2921.52

Under R.C. § 2921.52 (B)(3), it is a violation of Ohio law to knowingly use sham legal
process to “commit or facilitate the commission of an offense.” R.C. § 2921.52(A)(4) defines
sham legal process as an instrument that meets all of the following conditions:
(a) It is not lawfully issued.
(b) It purports to do any of the following:
(i) To be a summons, subpoena, judgment, or order of a court, a law
enforcement officer, or a legislative, executive, or administrative body.
(ii) To assert jurisdiction over or determine the legal or equitable status,
rights, duties, powers, or privileges of any person or property.
(iii) To require or authorize the search, seizure, indictment, arrest, trial, or
sentencing of any person or property.
(c) It is designed to make another person believe that it is lawfully issued.
Bickerstaff’s claims against McDuffie under R.C.§ 2921.52 again fail at the outset
because she has not pled sufficient factual allegations that show a legal instrument was
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unlawfully issued. Instead, the factual allegations pled by Bickerstaff show that a grand jury
indicted her on April 13, 2012. And, as stated throughout, “the return of an indictment by [a]
grand jury establishes probable cause.” Thus, because Bickerstaff has failed to plead
sufficient factual allegations showing a lack of probable cause, she cannot show that an
instrument was “unlawfully issued.” Therefore, Bickerstaff’s claims against McDuffie under
R.C.§ 2921.52(B)(3) and (E) are dismissed.
Bickerstaff’s claims under R.C. § 2921.52 also fail because she has not plead
sufficient factual allegations that show McDuffie acted “knowingly.” R.C. § 2921.52 (B)(3)
explicitly states that “No person shall . . . knowingly commit or facilitate the commission of an
offense, using sham legal process.” In her Amended Complaint, Bickerstaff does not plead
that McDuffie and other defendants knowingly violated the law. Instead, she incorrectly
asserts that McDuffie and other defendants “wantonly and willfully committed reckless
violations of the law.” Thus, because Bickerstaff failed to plead that McDuffie had the
requisite mental state, her claims under R.C.§ 2921.52 must also fail.
5.

Count VII - Civil Conspiracy

Bickerstaff’s final claim against McDuffie is for civil conspiracy. To establish a claim
of civil conspiracy, a plaintiff must allege: (1) a malicious combination; (2) of two or more
persons; (3) injury to person or property; and (4) existence of an unlawful act independent
from the actual conspiracy. Fed. Ins. Co. v. Webne, 513 F. Supp. 2d 921, 927 (N.D. Ohio
2007) (citing Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 419, 650 N.E.2d
863 (1995)). In other words, a plaintiff must show “that there was a single plan, that the
alleged co-conspirator shared in the general conspiratorial objective, and that an overt act was

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committed in furtherance of the conspiracy that caused injury to the complainant.” Heyne v.
Metro. Nashville Pub. Sch., 655 F.3d 556, 563 (6th Cir.2011) (quoting Spadafore v. Gardner,
330 F.3d 849 (6th Cir.2003)).
Bickerstaff’s civil conspiracy claim against McDuffie must fail because Bickerstaff
has not plead a single factual allegation showing that McDuffie was part of a “malicious
combination.” “There is no requirement of an express agreement between defendants” for a
malicious combination to exist. Garrett v. Fisher Titus Hosp., 318 F. Supp. 2d 562, 578
(N.D. Ohio 2004) (citing Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481, 496
(1996)). Rather, a plaintiff must plead sufficient factual allegations showing “a common
understanding or design, even if tacit, to commit an unlawful act.” Id. Bickerstaff does not
present any factual allegations that show even a tacit understanding between McDuffie and
the other defendants. In fact, Bickerstaff pleads contradictory facts. Accepting all of
Bickerstaff’s allegations as true, McDuffie ignored Lucarelli’s note instructing her not to
present the case to the grand jury. Thus, because Bickerstaff has failed to plead even a “tacit
understanding” between McDuffie and the other defendants, her civil conspiracy claim
against McDuffie is dismissed.
C.

Hill and Legg’s Motion to Dismiss is granted
Bickerstaff seeks four avenues of redress from Hill and Legg in their official and

individual capacities. Additionally, Bickerstaff seeks redress from Hill in his official and
individual capacity for supervisory liability. For the following reasons, Hill and Legg’s
Motion to Dismiss is granted.
1.

Count I - Malicious Prosecution

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Again, Bickerstaff fails to plead sufficient factual allegations that allow the Court to
infer a lack of probable cause. Therefore, Bickerstaff’s malicious prosecution claim against
Hill and Legg is dismissed.
2.

Count II - Abuse of Process

Bickerstaff’s abuse of process claim against Hill and Legg is dismissed for the same
reasons her abuse of process claim against McDuffie fails. Bickerstaff does not allege any
facts that would support finding that Hill and Legg had an ulterior purpose or that they even
had “bad intentions.” Instead, Bickerstaff contends that Lucarelli had an ulterior purpose in
prosecuting Bickerstaff because he wanted to keep his “relationship concealed.” Bickerstaff
then argues that because Hill and Legg allegedly allowed Lucarelli to prosecute Bickerstaff
they also had an ulterior purpose. But alleging that a defendant allowed a prosecution to be
carried out and concluded does not equate to an ulterior purpose. As stated above, a
defendant is not liable 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.” Bickley,
282 F. Supp. 2d at 640. Therefore, because Bickerstaff has only alleged that Hill and Legg
allowed her prosecution, her abuse of process claim against Hill and Legg is dismissed.
3.

Count IV - Supervisory Liability

Bickerstaff seeks redress from Hill alone for supervisory liability. Bickerstaff
contends that Hill, acting as Lucarelli’s direct supervisor, was aware of Lucarelli’s alleged
conduct and knowingly acquiesced in it.
To establish supervisory liability under § 1983, a plaintiff must “[a]t a minimum . . .
show that the official at least implicitly authorized, approved, or knowingly acquiesced in the

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unconstitutional conduct of the offending officers.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th
Cir.1999) (citing Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir.1982)).
“[L]iability under § 1983 must be based on active unconstitutional behavior and cannot be
based upon a mere failure to act.” Id. (citing Salehpour v. University of Tennessee, 159 F.3d
199, 206 (6th Cir.1998)).
Bickerstaff’s Amended Complaint is devoid of factual allegations showing
“unconstitutional behavior.” Accepting all allegations as true, it is plausible that Hill was
aware of Lucarelli’s alleged conduct; however, an officer having an inappropriate sexual
relationship does not amount to “unconstitutional behavior.” Moreover, a supervisor knowing
that an inappropriate relationship exists and failing to act certainly does not amount to
“unconstitutional behavior.” Thus, while Bickerstaff’s Amended Complaint may show that
Hill knowingly acquiesced to Lucarelli’s sexual escapades, it provides no factual allegations
showing that Hill or Lucarelli took part in any “active unconstitutional behavior.” Therefore,
Bickerstaff’s claim against Hill for supervisory liability is dismissed.
4.

Count VI - Reckless, Wanton, or Willful Conduct/ R.C. § 2921.52

Bickerstaff’s claims against Hill and Legg under R.C. § 2921.52 fail for the same
reasons they failed against McDuffie. Bickerstaff has not pled sufficient factual allegations
that show a legal instrument was unlawfully issued, nor has she plead sufficient factual
allegations that show Hill and Legg acted knowingly. Therefore, Bickerstaff’s claims against
Hill and Legg under R.C. § 2921.52(B)(3) and (E) are dismissed.
5.

Count VII - Civil Conspiracy

Bickerstaff’s final claim against Hill and Legg is for civil conspiracy. Accepting

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Bickerstaff’s allegations as true, the Court finds that Bickerstaff has not pled sufficient facts
to state a plausible claim of civil conspiracy against Hill and Legg.
As stated previously, for a civil conspiracy claim to go forward “[a]ll that must be
shown is that there was a single plan, that the alleged co-conspirator shared in the general
conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy
that caused injury to the complainant." Heyne, 655 F.3d at 563. Bickerstaff has pled enough
facts to show that there was a plan between Hill, Legg and Lucarelli to “cover up
departmental misconduct.” Bickerstaff alleges that Hill and Legg shared in the general
conspiratorial objective by creating false arrest and release reports, communicating with other
known sexual partners of Lucarelli, and lying to Internal Affairs about Lucarelli’s alleged
conduct. However, these actions, although wholly inappropriate and possibly illegal, did not
injure Bickerstaff. Moreover, Bickerstaff describes the independent overt acts as follows in ¶
122 of her Amended Complaint:
All Defendants worked together to commit an act wholly independent of the
conspiracy itself, to wit: malicious prosecution, abuse of process, instituting,
issuing, and advancing baseless charges against Plaintiff on bogus allegations
in order to maliciously punish and/or injure and/or retaliate against her.
Because these specific overt acts cannot survive dismissal as free-standing causes of action,
they cannot serve as overt acts in furtherance of civil conspiracy. Bickerstaff’s claim of civil
conspiracy against Defendants Hill and Legg is dismissed.

D.

City of Cleveland’s Motion to Dismiss is granted.

Bickerstaff asserts that Counts IV and V are separate allegations, but then treats the
allegations as one in her Response Brief. The Court will follow Bickerstaff’s approach and
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treat them as one allegation.
A municipality may be liable for a “constitutional deprivation” under 28 U.S.C. §
1983 if that deprivation is “visited pursuant to governmental custom even though such a
custom has not received formal approval through the body's official decisionmaking
channels.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978).
A municipality, however, cannot be held liable “solely because it employs a tortfeasor.” Id.
A plaintiff asserting municipal liability must adequately plead three elements to
survive a motion to dismiss brought pursuant to Rule 12(b)(6). A plaintiff must plead: (1)
that a violation of a federal right took place; (2) that the defendant(s) acted under color of
state law; and (3) that a municipality's policy or custom caused that violation to happen.
Bright v. Gallia Cnty., Ohio, 753 F.3d 639, 660 (6th Cir. 2014) (citing Lambert v. Hartman,
517 F.3d 433, 439 (6th Cir.2008)). In other words, a plaintiff “must demonstrate that the
alleged federal violation occurred because of a municipal policy or custom.” Burgess v.
Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing Monell, 436 U.S. at 694).
The Sixth Circuit has recognized four avenues a plaintiff may take to prove a
municipality’s illegal policy or custom. The plaintiff can look to (1) the municipality's
legislative enactments or official agency policies; (2) actions taken by officials with final
decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom
of tolerance or acquiescence of federal rights violations. Thomas v. City of Chattanooga, 398
F.3d 426, 429 (6th Cir. 2005). Bickerstaff attempts to establish municipal liability using two
of these avenues.
First, Bickerstaff alleges that the City of Cleveland had a policy of inadequate training

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and supervision because it allowed the Fifth District’s supervising officers to remain silent
and do nothing to discipline or stop Lucarelli from engaging in inappropriate relationships.
Second, Bickerstaff alleges that the City of Cleveland had a custom of tolerance or
acquiescence of federal rights violations because it tolerated officers having inappropriate
relationships and “covering up misconduct.” Bickerstaff then asserts that this policy and
custom caused her to be prosecuted without probable cause.
The City of Cleveland argues that Bickerstaff’s municipal liability claims must be
dismissed because Bickerstaff’s allegations do not amount to a municipal policy, and even if
her allegations did, Bickerstaff fails to assert a direct causal link between the alleged
municipal policy or custom and her alleged constitutional injury.
The Court agrees with the City of Cleveland. Bickerstaff has not pled sufficient facts
to make her claims against the City of Cleveland plausible.
First, Bickerstaff’s assertion that a municipal policy or custom existed falls short. At a
minimum, to demonstrate a municipal policy or custom, a plaintiff must show a “clear and
persistent pattern.” Thomas, 398 F.3d at 432. Accepting all Bickerstaff’s factual allegations
as true, Bickerstaff only sets forth facts illustrating one police district’s knowledge and
tolerance of one officer’s inappropriate relationships with crime victims and witnesses. One
instance in one police district does not demonstrate a “clear and persistent pattern.” Thus,
Bickerstaff’s assertion that a municipal policy or custom existed fails.
Second, Bickerstaff’s Amended Complaint is devoid of any factual allegations
demonstrating the requisite causal link between the City’s alleged policy or custom and her
alleged constitutional deprivation. “There must be a direct causal link between the policy and

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the alleged constitutional violation such that the [City’s] deliberate conduct can be deemed the
moving force behind the violation.” Graham ex rel. Estate of Graham v. Cnty. of Washtenaw,
358 F.3d 377, 383 (6th Cir. 2004) (citing Waters v. City of Morristown, 242 F.3d 353, 362
(6th Cir.2001)). Bickerstaff fails to set forth any factual allegations showing how the alleged
policy or custom caused her to be maliciously prosecuted. Bickerstaff alleges that the City of
Cleveland’s “policy and/or custom of tolerating dishonesty in law enforcement activities was
the moving force behind [her] injury.” However, this is merely a legal conclusion supported
by no factual allegations, which conclusions the Court must disregard.
In short, Bickerstaff has not set forth sufficient facts to make her claims against the
City of Cleveland plausible. Bickerstaff is obligated to plead facts that “amplify [her] claim”
to a level of plausibility and she has failed to do so. Bickerstaff’s attempt to infer a citywide
policy based solely on one instance of alleged misconduct is the exact path to municipal
liability that was forbidden by the Supreme Court in Monell. Therefore, Bickerstaff’s claims
against the City of Cleveland are dismissed.
IV. CONCLUSION
For the foregoing reasons, the Motions to Dismiss of Defendants, McDuffie, Hill,
Legg and the City of Cleveland are granted.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 27, 2015

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