Bickerstaff v. Lucarelli et al

Filing 86

Opinion and Order. Defendant Vincent Lucarelli's Motion to Dismiss Counts III, VI and VII of the First Amended Complaint (Related doc # 58 ) is granted in part and denied in part. Judge Christopher A. Boyko on 4/2/2015. (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 comes before the Court on Defendant Vincent Lucarelli’s Motion (ECF
#58) to Dismiss Counts III, VI and VII of Plaintiff Brenda Bickerstaff’s First Amended
Complaint Pursuant to Federal Rule of Civil Procedure 12 (b)(6). For the following reasons,
the Court grants in part and denies in part Defendant Lucarelli’s Motion to Dismiss.
I. Facts and Procedural History
Plaintiff Brenda Bickerstaff (“Bickerstaff”) is a private investigator for various
defense attorneys and makes the following factual allegations (Pl.’s First Am. Compl. ¶ 38):
Bickerstaff’s job required her to investigate a criminal case on behalf of a person accused of

breaking into the home of Jasmine Harris (“Harris”). Id at ¶ 40. Lucarelli maintained
personal relationships with and engaged in sexual conduct with alleged crime victims,
including Harris. Id. at ¶ 19. Lucarelli sent nude pictures of Harris and other alleged crime
victims to his supervisor, Captain Dennis Hill (“Hill”) and his partner, Detective Michael
Legg (“Legg”). Id. at 9, 10, 21.
On March 24, 2012, Bickerstaff called Harris, who agreed to be interviewed. Id. at
¶ 41. Afterward, Bickerstaff received a phone call from Vincent Lucarelli (“Lucarelli”), a
police officer for the City of Cleveland. Id at ¶ ¶ 6, 41, 42. Lucarelli demanded that
Bickerstaff stop talking to Harris. Id. at ¶ 42. Lucarelli began a criminal investigation of
Bickerstaff, sought an arrest warrant for Bickerstaff and knowingly authored false facts
regarding Bickerstaff in a police report. Id. at ¶¶ 46, 48-49. Bickerstaff was indicted by a
grand jury. Id. at ¶ 54. Lucarelli omitted important information from the presentation to the
grand jury, including information on his personal relationship with Harris. Id. at . ¶ 50.
Detective Cheryl McDuffie (“McDuffie”) presented Lucarelli’s paperwork to the grand jury
for consideration against the Plaintiff. Id. at ¶ 52. Lucarelli texted McDuffie that Bickerstaff
was a private investigator working for a criminal defendant and that Bickerstaff showed up at
Harris’ house after Harris declined to give a statement. Id. at ¶ 53. Lucarelli told McDuffie,
though, that he did not want the matter to be presented to the grand jury. Id. at ¶ 53. All
charges were dismissed against Bickerstaff. Id. at ¶ 74.
On March 20, 2013, Bickerstaff filed suit against Defendants Lucarelli, Hill, Legg,
McDuffie, the City of Cleveland and John Does 1-10, in the Cuyahoga County Court of
Common Pleas alleging: (I) Malicious Prosecution; (II) Abuse of Process; (III) Retaliation;

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(IV) Supervisory Liability; (V) Municipal Liability; (VI) Reckless, Wanton, or Willful
Conduct; and (VII) Civil Conspiracy. The case was dismissed without prejudice on June 19,
2013. Bickerstaff re-filed the case on March 21, 2014; and on April 17, 2014, Defendants
removed it to this Court.
On June 17, 2014, Bickerstaff filed an Amended Complaint, making the same
allegations. Of the seven counts in her Amended Complaint, Bickerstaff asserts her
Malicious Prosecution, Abuse of Process, Retaliation, Reckless, Wanton, or Willful Conduct
and Civil Conspiracy claims against Defendant Lucarelli. On December 17, 2014, Defendant
Lucarelli filed a Motion for Partial Dismissal of the Retaliation; Reckless, Wanton, or Willful
Conduct; and Civil Conspiracy claims pursuant to Federal Rule of Civil Procedure 12 (b)(6).
II. Law and Analysis
A. Legal Standard
Federal Rule of Procedure 8 (a) requires that the Complaint contain "a short and plain
statement of the claim showing that the pleader is entitled to relief." Hensley Mfg. v.
ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009). To survive a motion to dismiss, "the
plaintiff must allege facts that, if accepted as true, are sufficient to raise a right to relief above
the speculative level..." and must do more than allege the elements of a cause of action and
come to legal conclusions. Id. Additionally, the plaintiff must "state a claim to relief that is
plausible on its face." Id. To state a claim that is plausible on its face, the plaintiff must
plead facts that would allow the court to reasonably infer that the defendant is liable for the
conduct the plaintiff alleges. In determining whether this standard is met, the court must
accept the factual allegations as true, but need not accept legal conclusions. Id.

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B. Retaliation
In Count III of her First Amended Complaint, Bickerstaff alleges she was subjected to
retaliatory prosecution. A claim for retaliation lies where there was “adverse state action
motivated at least in part as a response to the exercise of the plaintiff's constitutional rights.”
Barnes v. Wright, 449 F.3d 709, 718 (6th Cir. 2006). A cause of action for retaliation requires
that the plaintiff show:
(1) the plaintiff was 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 was a causal connection
between the plaintiff’s protected conduct and [the adverse action] because the
[the adverse action] was motivated at least in part by the plaintiff’s protected
conduct.

Gregory v. Burnett, 577 F. App'x 512, 518 (6th Cir. 2014).
Bickerstaff alleges that “by talking with [Harris] on the telephone and/or seeking to
meet with or talk with her on behalf of an accused person who was seeking redress in the
Ohio court system, Plaintiff was engaged in an activity that is protected by the First
Amendment, i.e. freely associating with a member of the general public and/or seeking to
freely associate with a member of the general public for the purpose of participating in the
criminal justice system on behalf of an accused person....” (Pl.’s First Amended Compl. at ¶
83). The First Amendment protects the “right to associate with others in pursuit of a wide
variety of political, social, economic, educational, religious, and cultural ends.” Roberts v.
U.S. Jaycees, 468 U.S. 609, 622, 104 S. Ct. 3244, 3252, 82 L. Ed. 2d 462 (1984). Lucarelli
does not contest that Bickerstaff was engaging in a constitutionally protected activity. For the
purposes of this Motion, the Court assumes (without deciding) that freely associating with a

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member of the public, or with an alleged crime victim is constitutionally protected conduct
and that Bickerstaff’s allegations with regard to this element are sufficient.
Lucarelli does not dispute Bickerstaff’s allegations that an adverse action was taken
against her that would deter a person of ordinary firmness from continuing to engage in that
conduct. With regard to this element, Bickerstaff alleges that “by filing false allegations and
presenting false and/or misleading or incompetent evidence and information to the grand jury
and/or by failing to take action when a duty was owed to act, Defendants took action adverse
to Plaintiff.” (Pl.’s First Amended Compl. at ¶ 86). Bickerstaff also alleges that “[t]his
adverse action caused Plaintiff to suffer injuries that would likely chill a person of ordinary
firmness from freely associating and/or talking with a member of the general public and/or
seeking to freely associate with a member of the general public for the purpose of
participating in the criminal justice system, i.e. to aid another in the petition for the redress of
grievances, to wit: including but not limited to getting indicted, undergoing a restraint on
personal liberty, losing financial resources, and incurring legal fees.” Id. at ¶ 87. For the
purposes of this Motion, the Court assumes that Bickerstaff’s allegations with regard to this
element are also sufficient.
As to the third element of Bickerstaff’s retaliation claim, Lucarelli argues that
Bickerstaff makes no factual assertion demonstrating a First Amendment motivation by
Lucarelli and that Bickerstaff only offers conclusory allegations. Bickerstaff alleges that her
attempt to speak with Harris was a substantial factor or was the motivating factor in
Defendant Lucarelli’s action to prosecute her; that when the Defendants filed false allegations
and presented false evidence and/or information to the grand jury, they were motivated

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entirely out of retaliatory animus; and that Defendants’ actions were a response to
Bickersatff’s exercise of her First Amendment right. (Pl.’s First Amended Compl. at ¶ ¶ 84,
88).
In support of her allegations regarding Lucarelli’s motivation, Bickerstaff alleges that
no reasonable officer would have arrested Bickerstaff for merely contacting Harris and that
the Defendants (including Lucarelli) brought the case against Bickerstaff without probable
cause. (Pl.’s First Amended Compl. at ¶ ¶ 85, 89). In a retaliatory prosecution case, a
showing of a causal connection between the defendant’s alleged animus and the plaintiff’s
injury is complicated by the fact that the defendant is a non-prosecutor who did not make the
decision to bring charges against the plaintiff. Hartman v. Moore, 547 U.S. 250, 261-62
(2006). If the plaintiff proves that the elements of retaliatory animus caused the plaintiff’s
injury, the defendant may respond by showing that the prosecution would have happened
anyway, independent of retaliatory animus, because there was probable cause to bring
charges. Hartman 547 U.S. at 260-61. Evidence that there was no probable cause to bring
the underlying criminal charge will tend to show that retaliation was a but-for basis of
instigating the prosecution. Id at 261. In a retaliatory prosecution case, the plaintiff must
plead and prove that there was a lack of probable cause. Id at 265. In addition to showing
that the defendant acted in retaliation, the plaintiff “must also show that [the defendant]
induced the prosecutor to bring charges that would not have been initiated without his
urging.” Id at 262. The Sixth Circuit has held that “the finding of an indictment, fair upon its
face, by a properly constituted grand jury, conclusively determines the existence of probable
cause for the purpose of holding the accused to answer.” Cook v. McPherson, 273 F. App'x

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421, 423 (6th Cir. 2008).
An exception to this rule applies “where the indictment was obtained wrongfully by
defendant police officers who knowingly present false testimony to the grand jury.” Cook.,
273 F. App'x at 424. While Bickerstaff alleges that Defendants made false allegations against
her which were inserted into police documents and court filings resulting in an unjust
prosecution, and that Defendants presented false and/or misleading information to the grand
jury, (Pl.’s First Amended Compl. at ¶ 68, 86) her allegations are conclusory. Bickerstaff
does not specifically describe the false allegations. Bickerstaff fails to sufficiently allege that
Defendant Lucarelli knowingly presented false testimony to the grand jury and therefore
Bickerstaff fails to state a claim that could plausibly defeat the presumption of probable cause
based on the return of an indictment.
Bickerstaff alleges that Defendants knew that Bickerstaff’s prosecution was without
probable cause; that Defendants presented incomplete evidence and information to the grand
jury; that Defendants never disclosed facts to the grand jury that would defeat probable cause;
and that this permitted the prosecution to go forward. (Pl.’s First Amended Compl. at ¶ 69,
86). When Bickerstaff alleges that Defendants’ failure to disclose material facts permitted the
prosecution to go forward, she is essentially alleging a failure to disclose exculpatory
evidence to the grand jury.
In Diver v. Dobson, No. 3:12 CV 957, 2014 WL 1369671, at *3 (N.D. Ohio Mar. 31,
2014), the plaintiff brought a malicious prosecution claim and challenged the presumption of
probable cause based on the prosecutor’s failure to present exculpatory evidence to the grand
jury. Diver, 2014 WL 1369671, at *3. In support of his claim that probable cause was

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lacking, the plaintiff argued that the defendant sheriff failed to supply the prosecutor with
exculpatory evidence. Diver, 2014 WL 1369671, at *3. Because a prosecutor has no duty to
present exculpatory evidence to a grand jury (United States v. Adamo, 742 F.2d 927, 937 (6th
Cir. 1984), “an indictment valid on its face is not subject to challenge on the ground that the
grand jury acted on the basis of inadequate or incompetent evidence.” Diver , 2014 WL
1369671, at *3. The Diver court held that even if the prosecutor had all of the information,
the prosecutor was under no duty to present it to the grand jury. Id. at *4. Finding that the
plaintiff did not allege that there were irregularities or improprieties in the constitution of the
grand jury or in the process; and that the plaintiff failed to sufficiently allege that the
defendants participated in or influenced the decision to prosecute, the court held that the
plaintiff failed to rebut the presumption that the indictment was fair on its face and was based
upon probable cause. Id. at *4-5. Following Diver, Bickerstaff’s allegations that
Defendants’ presentation of incomplete evidence and information to the grand jury which
would have defeated probable cause and which permitted the prosecution to go forward, are
insufficient to rebut the presumption of probable cause. Accordingly, the Court dismisses
Bickerstaff’s Retaliation claim against Lucarelli.
C. Reckless, Wanton, or Willful Conduct
Bickerstaff titles Count VI of her Complaint as “Reckless, Wanton, or Willful
Conduct / R.C. 2921.52.” Bickerstaff argues that the Reckless, Wanton, or Willful Conduct
count was included so that Bickerstaff could meet the burden of showing that Defendants’
culpability rose above negligence and would then fall under an exception to statutory
immunity under Ohio law. Lucarelli correctly argues that Bickerstaff’s claim for Reckless,

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Wanton, and Willful Conduct should be dismissed because it is not a distinct cause of action,
but is an element of other causes of action. See Bradley v. City of Cleveland, No. 1:11CV781,
2012 WL 775106, at *3 (N.D. Ohio Mar. 7, 2012). Reckless, wanton, or willful conduct, is a
level of intent which may negate defenses like statutory immunity. Bradley, 2012 WL
775106, at *3.
Section 2921.52 (B) provides that “[n]o person shall, knowing the sham legal process
to be sham legal process, do any of the following:”
(1) Knowingly issue, display, deliver, distribute, or otherwise use sham legal
process; (2) Knowingly use sham legal process to arrest, detain, search, or
seize any person or the property of another person; (3) Knowingly commit or
facilitate the commission of an offense, using sham legal process; (4)
Knowingly commit a felony by using sham legal process.

‘Sham legal process’ is an instrument that:
(a) ...is not lawfully issued; (b) ...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, [or] (iii) To require or
authorize the search, seizure, indictment, arrest, trial, or sentencing of any
person or property; [and] (c) ...is designed to make another person believe that
it is lawfully issued.
Ohio Rev. Code Ann. § 2921.52 (A)(4) (West).
The statute defines ‘lawfully issued’ as “adopted, issued, or rendered in accordance
with the United States constitution, the constitution of a state, and the applicable statutes,
rules, regulations, and ordinances of the United States, a state, and the political subdivisions
of a state.” Ohio Rev. Code Ann. § 2921.52 (A)(1)(West).
Bickerstaff does not allege facts to rebut the presumption of probable cause arising
from the return of the Indictment. Although Bickerstaff alleges that Defendants infused
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and/or facilitated the presentment of false charges against her; and that Defendants created,
perpetrated, and/or disseminated a series of falsehoods and misstatements against her that laid
a false foundation for her prosecution (See Pl.'s First Amended Compl. at ¶¶ 112-13),
Bickerstaff makes no allegations describing what falsehoods and misstatements Lucarelli
included in any document. Bickerstaff does not allege facts making it plausible that Lucarelli
used any instrument that was not lawfully issued or making it plausible that Lucarelli used
sham legal process for any of the purposes set forth in section 2921.52 (B).
Bickerstaff’s claims under R.C. § 2921.52 also fail because she has not plead
sufficient factual allegations that show Lucarelli acted “knowingly.” R.C. § 2921.52 (B)(3)
explicitly states that “[n]o person shall . . . knowingly commit or facilitate the commission of
an offense, using sham legal process.” In her Amended Complaint, Bickerstaff does not plead
that Lucarelli and other defendants knowingly violated the law. Instead, she incorrectly
asserts that Lucarelli and other defendants “wantonly and willfully committed reckless
violations of the law.” Thus, because Bickerstaff fails to plead that Lucarelli had the requisite
mental state, her claims under R.C.§ 2921.52 must also fail.
Finally, in her Response to Defendant Lucarelli’s Motion to Dismiss, Bickerstaff does
dispute Lucarelli’s argument that legal process was lawfully issued. Because Reckless,
Wanton, or Willful Conduct is not a stand alone cause of action in Ohio, and because
Bickerstaff fails to allege facts sufficient to show a violation of Section 2921.52, the Court
dismisses Count VI.

D. Civil Conspiracy

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In Count VII of her First Amended Complaint, Bickerstaff alleges Civil Conspiracy.
The Sixth Circuit has held the following with regard to civil conspiracy claims:
A civil conspiracy is an agreement between two or more persons to injure
another by unlawful action. Express agreement among all the conspirators is
not necessary to find the existence of a civil conspiracy. Each conspirator
need not have known all of the details of the illegal plan or all of the
participants involved. All that must be shown is that there was a single plan,
that the alleged coconspirator 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 v. Metro. Nashville Pub. Sch., 655 F.3d 556, 563 (6th Cir. 2011).
Because direct evidence of civil conspiracy is often unavailable, it is enough for the
plaintiff to produce circumstantial evidence from which the existence of a conspiracy can be
reasonably inferred. Womack v. Conley, C.A. No. 13-6565, 2014 WL 6997493, at *4 (6th
Cir. Dec. 11, 2014).
Lucarelli does not argue that Bickerstaff fails to make allegations supporting each of
the elements of civil conspiracy. In his Reply to Plaintiff’s Brief in Opposition, Lucarelli
appears to argue that Bickerstaff’s Complaint is insufficient on two bases: Bickerstaff fails to
state a claim due to the applicability of the intracorporate conspiracy doctrine; and because
Bickerstaff has not sufficiently alleged that Lucarelli acted outside the scope of his
employment, Bickerstaff has failed to state a claim under an exception to the intracorporate
conspiracy doctrine.
Lucarelli argues that the civil conspiracy claim should be dismissed because under the
intracorporate conspiracy doctrine, the City of Cleveland, as a municipal corporation, cannot
conspire with police officers who are its employees or agents. A corporation acts through its
officers, and cannot conspire with itself. Bays v. Canty, 330 F. App'x 594 (6th Cir. 2009).

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Accordingly, “members of the same legal entity cannot conspire with one another as long as
their alleged acts were within the scope of their employment.” Burgess v. Fischer, 735 F.3d
462, 483 (6th Cir. 2013). The intracorporate conspiracy doctrine applies to police officers of
police departments. Ruble v. Escola, 898 F. Supp. 2d 956, 986 (N.D. Ohio 2012).
An exception to the intracorporate conspiracy doctrine, applies “where employees act
outside the scope of their employment.” Coley v. Lucas Cnty., Ohio, No. 3:09 CV 8, 2014
WL 272667, at *7 (N.D. Ohio Jan. 23, 2014). In an action alleging that defendant police
officers created a conspiracy in their individual capacities, the plaintiff must allege actions
that the defendants took outside the scope of their duties as police officers. Bradley, 2012
WL 775106, at *5. This Court has held that “[d]efendants act outside the scope of their
employment when they pursue personal interests wholly separate and apart from the entity.”
Briner v. City of Ontario, No. 1:07CV129, 2010 WL 3982755, at *15 (N.D. Ohio Oct. 7,
2010) on reconsideration, No. 1:07CV129, 2011 WL 866464 (N.D. Ohio Mar. 9, 2011).
Lucarelli argues that Bickerstaff’s allegation that Defendants were acting to further a
city policy is insufficient to support a conspiracy claim against Defendants in their individual
capacities. That is, Bickerstaff has not sufficiently alleged that Lucarelli was acting outside
the scope of his employment. Bickerstaff has alleged, in the alternative, however, that
Lucarelli acted outside the scope of his employment with the City of Cleveland. (Pl.’s First
Amended Compl. at ¶ 12). Specifically, while Bickerstaff alleges that Defendants acted to
further a city policy, she also makes allegations supporting an inference that Defendants acted
to pursue personal interests wholly separate and apart from the City. Bickerstaff alleges that
Defendants “participated in a custom of toleration of officers having physical/sexual

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relationships with alleged victim-women; condoning and toleration of officers submitting
altered and/or false reports and departmental documentation to cover up for rule-breaking and
or other misconduct.” (Pl.’s First Amended Compl. at ¶ 120). Bickerstaff also alleges that
“all police officer Defendants acted together to assist or cover up and/or permit the wrongful
prosecution of Plaintiff by Defendant Lucarelli” and that Defendants (including Lucarelli)
“worked together to commit ... malicious prosecution, abuse of process, instituting, issuing,
and advancing baseless charges against Plaintiff ... in order to maliciously punish and/or
injure or retaliate against her. (Pl.’s First Amended Compl. at ¶ 14, 122). The Court finds
that Bickerstaff has made sufficient allegations to state a claim for Civil Conspiracy under an
exception to the intracorporate conspiracy doctrine, and denies Lucarelli’s motion to dismiss
the Civil Conspiracy claim.
IV. Conclusion
For the foregoing reasons, the Court grants Defendant’s Partial Motion to Dismiss
Plaintiff’s Retaliation and Reckless, Wanton or Willful Conduct claims and denies Plaintiff’s
Partial Motion to Dismiss Plaintiff’s Civil Conspiracy claim.
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: April 2, 2015

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