Colbetzor v. Beverlin et al

Filing 22

Memorandum Opinion: The Akron defendants' motion to dismiss (Doc. No. 14 ) is denied in part, and denied without prejudice in part. At the time of filing their dispositive motion, the Akron defendants also moved instanter to exceed the page limitations for a dispositive motion. (Doc. No. 20 .) The motion to exceed the page limitations is granted. Defendant Moore's motion to dismiss (Doc. No. 5 ) is denied as moot. Judge Sara Lioi on 7/19/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KEVIN R. COLBETZOR,

PLAINTIFF,
vs.
JOHN BEVERLIN, et al.,

DEFENDANTS.

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CASE NO. 5:16-cv-3058

JUDGE SARA LIOI

MEMORANDUM OPINION

Before the Court are two dispositive motions. Defendant Andre D. Moore (“Moore”) has
moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the
complaint. (Doc. No. 5 [“Moore MTD”].) Plaintiff Kevin R. Colbetzor (“Colbetzor” or
“plaintiff”) opposes the motion. (Doc. No. 9 [“Moore MTD Opp’n”].) Defendants John Beverlin,
Akron Board of Education, Thomas Kekela, Lestor Nash, Todd Wammes, Lonnie Kammer, and
David James (collectively, “the Akron defendants”) have moved under Rule 12(b)(6) for
dismissal of the amended complaint. (Doc. No. 14 [“Akron MTD”].) 1 Plaintiff opposes this
motion, as well, (Doc. No. 17 [“Akron MTD Opp’n”]), and the Akron defendants have filed a
reply. (Doc. No. 21 [“Akron MTD Reply”].) For the following reasons, the Akron defendants’
motion to dismiss the amended complaint is denied, and Moore’s motion to dismiss the original
complaint is denied as moot.

1

At the time of filing their dispositive motion, the Akron defendants also moved instanter to exceed the page
limitations for a dispositive motion. (Doc. No. 20.) The motion to exceed the page limitations is granted.

I. BACKGROUND
At all times relevant to the amended complaint, plaintiff was employed by the Akron
Public Schools (“APS”) as a custodian stationed at the Miller South High School for Visual and
Performing Arts (“Miller South”). (Doc. No. 6 (Amended Complaint [“Am. Compl.”]) ¶ 16.) His
employment was subject to a collective bargaining agreement. (Id.) Plaintiff was also the
proprietor of two local businesses named “Colby’s Auction House” and “Weekend Market.” (Id.
¶ 18.) Plaintiff reported to defendant Lonnie Kammer (“Kammer”), the head custodian at Miller
South. (Id. ¶ 16.) Defendant Jon Beverlin (“Beverlin”) is employed by APS as “Coordinator of
Custodial Services and was Lonnie Kammer’s supervisor.” (Id. ¶ 16.) Defendant Thomas Kekela
(“Kekela”) holds the position of Facility Services Supervisor for APS, and defendant Moore is a
“commissioned police officer employed by the City of Akron and also the APS.” (Id.)
In the spring of 2015, Kammer “took it upon himself” to conduct an investigation into
missing items purportedly taken from Miller South. (Id. ¶ 18.) As part of this informal
investigation, Kammer visited the Weekend Market, where he observed “a Styrofoam box full of
combination locks.” (Id.) Kammer “speculated that these locks were stolen from Miller South[,]”
and contacted Beverlin “telling him the locks looked like locks from Miller South.” (Id.) After
discussing the matter with some or all of the individual defendants, Beverlin directed Kammer to
return to the Weekend Market and purchase some of the locks. (Id. ¶ 20.) Kekela accompanied
Kammer to plaintiff’s store. After purchasing the locks, Kekela instructed Kammer to attempt to
open the locks using his custodial combination lock key, but “it did not open the locks.” (Id. at ¶¶
20-21.)
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Following the recognizance mission to purchase the locks, Beverlin and/or Kammer, after
conversations with the other individual defendants, met with Moore and related to him their
suspicion that plaintiff had stolen the locks. Moore prepared an incident report based exclusively
on the information conveyed to him by Beverlin, who was identified in the incident report as
“Rp” (reporting party). (Id. ¶¶ 26-29.) The “officer narrative” section of the incident report was
reproduced in the amended complaint, and provided as follows:
The Rp stated that it was brought to his attention that the suspect [Kevin
Colbetzor] have (sic) been taking items out of the above location [Miller South
school at 1055 East Avenue, Akron, Ohio 44307] and selling them at Colby’s
Flea Market and Antiques (owner).” (sic). The Rp stated that he got several
complaints that items were left inside the building and would be missing within
days. The Rp stated that he was told by several people that the suspect had a large
box of school locks that looked like the ones missing from Miller-South being
sold at the suspect’s business. The Rp stated that he and another employee went
out to the suspect’s business and bought two locks. The Rp stated that the master
key at Miller-South opened both locks. He also stated that according to their
records and the numbers on the locks, the locks are registered to Miller-South.
The Rp also stated that the suspect took the original combination tags off and
replaced them with paper tags that were handwritten in ink.
(Id. ¶ 28.) Plaintiff alleges that Moore failed to conduct any investigation before or after he filed
this incident report, and that neither Moore nor any other defendant ever spoke with him about
the missing locks. (Id. ¶¶ 19, 29.)
On May 13, 2015, Beverlin, “without talking to any prosecutor or getting approval,” filed
two criminal complaints against plaintiff in the case styled “State of Ohio v. Kevin R. Colbetzor,
Case No. 2015 CRB 04739.” (Id. ¶ 32.) Through this criminal action, plaintiff was charged with
two counts of receiving stolen property, a first degree misdemeanor. (Id.) Moore signed the field
arrest/summons form directing plaintiff to appear before the Akron Municipal Court to answer to
the charges. (Id. ¶ 33.) It is plaintiff’s belief that Moore “did not consult with a prosecutor” prior
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to preparing the field arrest/summons form. (Id. ¶ 34.) Plaintiff proceeded to trial on the theft
charges.
According to plaintiff, defendants failed to come forward with any evidence that tied him
to the theft of any property from Miller-South, or even establish that the locks found in his
establishment came from the high school. Following a jury trial, the municipal court granted
plaintiff’s motion for judgment of acquittal pursuant to Rule 29 of the Ohio Rules of Criminal
Procedure. The order of acquittal was docketed on November 23, 2015. (Id. ¶ 52.)
The present lawsuit followed in state court. On December 22, 2016, defendants removed
the action to federal court. (Doc. No. 1 (Notice of Removal).) On December 29, 2016, Moore
moved to dismiss the claims against him under Rule 12(b)(6). In response to the motion, plaintiff
timely filed an amended complaint. Plaintiff’s pleading, as amended, includes claims for
malicious prosecution and abuse of process, tortious interference with employment and/or
contract, defamation and slander, and intentional infliction of emotional distress. He also seeks to
hold APS liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L.
Ed. 2d 611 (1978). (See Am. Compl.) Generally, these claims all revolve around the theory that
defendants conspired to bring false criminal charges against him for the purpose of securing his
termination.
II. STANDARD OF REVIEW
Because the parties devoted considerable space in their briefs to the proper standard for
reviewing Rule 12(b)(6) motions, it is worthwhile to revisit the standard in some detail. A
motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleading. Davis H. Elliot Co.,
Inc. v. Caribbean Util. Co., Ltd., 513 F.2d 1176, 1182 (6th Cir. 1975). All allegations of fact by
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the non-moving party are accepted as true and construed in the light most favorable to that party.
See Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998) (citing Meador v. Cabinet for Human
Res., 902 F.2d 474, 475 (6th Cir. 1990)). The Court, however, “need not accept as true legal
conclusions or unwarranted factual inferences.” Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir.
1999) (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). Nor is the
Court required to accept as true complaint allegations that are contradicted by public records and
other evidentiary materials of which the Court may take judicial notice. See Moody v.
CitiMortgage, Inc., 32 F. Supp. 3d 869, 874-75 (W.D. Mich. 2014) (“court may disregard
allegations in the complaint if contradicted by facts established by exhibits attached to the
complaint”) (quotation marks and citations omitted); see also Williams v. CitiMortgage, Inc., 498
F. App’x 532, 536 (6th Cir. 2012) (“if a factual assertion in the pleadings is inconsistent with a
document attached for support, the Court is to accept the facts as stated in the attached
document”) (quotation marks and citation omitted).
The sufficiency of the pleading is tested against the notice pleading requirements of Fed.
R. Civ. P. 8. Rule 8(a)(2) provides that a complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief[.]” Although this standard is liberal, Rule 8
still requires a complaint to provide the defendant with “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167
L. Ed. 2d 929 (2007). Thus, “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550
U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows
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the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). Although the plausibility standard is not
equivalent to a “‘probability requirement’ . . . it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).2 A
complaint’s “[f]actual allegations must be enough to raise a right to relief above the speculative
level, on the assumption that all of the complaint’s allegations are true (even if doubtful in
fact)[.]” Twombly, 550 U.S. at 555-56 (citations, including internal citations, omitted).
It is plaintiff’s position that defendants are attempting to hold him to a higher standard at
the motion to dismiss stage than that dictated by the Supreme Court in Twombly and Iqbal.
(Akron MTD Opp’n [“Defendants here, which has become typical, filed a Motion to Dismiss
seeking to ‘Twombly Plaintiff with Iqbal.’”] at 2073.) Specifically, he accuses defendants of
advocating for the standard of review appropriate on summary judgment. (Id. at 206.) It is
plaintiff’s position that his amended pleading satisfies the pleading requirements of Rule 8 and
9(b), and, as such, dismissal at this juncture is not appropriate.
III. DEFENDANT MOORE’S MOTION TO DISMISS THE COMPLAINT
As set forth above, defendant Moore previously moved for dismissal of the original
complaint. Rule 15(a)(1)(B) permits amendment of pleadings as a matter of course within 21
days of service of a motion under Rule 12(b). According to Rule 15’s advisory notes, the

In this respect, plaintiff is incorrect when, relying on a dictionary definition of “plausible,” he equated it with a
mere possibility of truth. (See Akron MTD Opp’n at 207, quoting Cambridge Dictionary definition of “plausible” as
“possibly true[.]”). “[S]omething beyond the mere possibility of [liability] must be alleged, lest a plaintiff with a
largely groundless claim be allowed to take up the time of a number of other people, with the right to do so
representing an in terrorem increment of the settlement value.” Twombly, 550 U.S. at 557-58 (quotation marks and
citations omitted).
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All record page number references are to the page identification number generated by the Court’s electronic
docketing system.
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provision allowing for an amendment, as a matter of right, within 21 days of the filing of a
motion to dismiss, forces “the pleader to consider carefully and promptly the wisdom of
amending to meet the arguments in the motion [to dismiss].” 2009 Advisory Notes to Rule
15(a)(2). Plaintiff timely amended his complaint under Rule 15(a)(2), and filed an opposition to
Moore’s dispositive motion contending that his amendment cured the alleged pleading
deficiencies identified in Moore’s motion. Defendant Moore failed to file a reply, or otherwise
suggest that the amended complaint did not resolve the issues raised in his motion. Accordingly,
his motion to dismiss the original complaint is denied as moot.
IV. AKRON DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT
The Akron defendants insist that all of the claims asserted against them in the amended
complaint fail to meet the minimum pleading requirements of Rule 8, and where applicable, Rule
9. They also maintain that the individual defendants, to the extent they are sued in their
individual capacities, are entitled to qualified immunity, and that all defendants are immune from
liability as to the state law claims under Ohio Rev. Code § 2744.
A.

Malicious Prosecution

Plaintiff brings his malicious prosecution claim under federal and state law. “The Sixth
Circuit recognize[s] a separate constitutionally cognizable claim of malicious prosecution under
the Fourth Amendment, which encompasses wrongful investigation, prosecution, conviction, and
incarceration.” Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (quotation marks and
citation omitted). “A malicious-prosecution claim under § 1983 has four elements: first, that the
defendant ‘made, influenced, or participated’ in the decision to prosecute the plaintiff; second,
that the prosecution lacked probable cause; third, that the criminal proceeding caused a
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deprivation of the plaintiff’s liberty apart from the initial seizure; and fourth, that the criminal
proceeding resolved in the plaintiff’s favor.” Martin v. Maurer, 581 F. App’x 509, 511 (6th Cir.
2014) (citing Sykes, 625 F.3d at 308-09). The elements are similar under Ohio law. See Trussell
v. Gen. Motors Corp., 559 N.E.2d 732, 735 (Ohio 1990) (recognizing three elements: (1) malice
in instituting or continuing prosecution; (2) lack of probable cause; and (3) termination of the
prosecution in favor of the criminal defendant) (quotation marks and citation omitted); see
Harris v. Bornhorst, 513 F.3d 503, 520 (6th Cir. 2008) (citations omitted). The parties agree that
both federal and state law require the absence of probable cause.
Defendants argue that the amended complaint concedes the existence of probable cause
and therefore, effectively defeats any claim for malicious prosecution. Particularly, the Akron
defendants point to the amended complaint’s reference to and reproduction of the officer
narrative section of Moore’s incident report. In particular, defendants highlight the fact that
Moore wrote that Beverlin told him that several people reported plaintiff had a box of locks at
his business that looked like the ones missing from the high school, and that the high school’s
master key opened the allegedly stolen locks. Based on the inclusion of the officer’s narrative in
the amended complaint, the Akron defendants argue that plaintiff’s “allegations demonstrate[]
the existence—rather than lack—of probable cause.” (Akron defendants’ MTD at 156, emphasis
in original.)
The Akron defendants’ argument is premised upon a faulty reading of the amended
complaint. Paragraph 28 provides that, “[i]n the aforesaid incident report, Defendant Moore in
his narrative wrote what John Beverlin, the ‘Rp’ (reporting party), told him” about the locks.
(Am. Compl. ¶ 28.) The paragraph then repeats the contents of the narrative. It does not allege
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that the content of the narrative is true; rather, it merely states what Beverlin purportedly told
Moore and what Moore wrote in his report. As such, it does nothing more than set forth the
sequence of events that ultimately led to the filing of the incident report and the resulting
criminal complaints. Indeed, other allegations in the amended complaint make clear that plaintiff
does not accept the facts contained in the incident report as true. For example, plaintiff alleges
that, contrary to Beverlin’s representations, the master key from Miller South “did not open the
locks.” (Id. ¶ 21, emphasis added; see ¶ 31 [“The allegations in the narrative report were false,
and wrongfully published by Defendant Andre Moore . . .”].) He also alleges that defendants
lacked any evidence that could tie the locks to Miller South.4 (Id. ¶¶ 44-46.)
The Akron defendants further emphasize that plaintiff sets forth in his amended
complaint that he admitted to defendant Moore that the locks came from APS. (Akron MTD at
156, citing Am. Compl. ¶ 36.) Again, defendants do not fairly represent the amended complaint.
What the complaint allegation actually states is that, when defendant Moore advised plaintiff of
the criminal summons, plaintiff informed Moore that the “the locks were not stolen and that he
had permission from his supervisor to keep the locks and that they came from the old Litchfield
Middle School which had been torn down, and not from Miller South.” (Am. Compl. ¶ 36,
emphasis added.) Far from an admission of guilt, plaintiff’s comment to Moore suggested that
these were not the locks that were allegedly stolen from the high school and that he had a lawful
reason to possess them.
Plaintiff alleges that he initiated his own investigation and “obtained the purported records regarding” the locks
and “discovered” that the records did not establish either the time the locks were purchased or ownership. (Am.
Compl. ¶ 44; see also ¶ 24.) He also advances factual allegations that call into question the chain of custody for the
locks. (Id. ¶ 22.) Further, plaintiff pleaded facts demonstrating students purchase the locks directly from the PTA,
making them the student’s property. (Id. ¶ 25.) Collectively these facts, if believed, discredit Beverlin’s statement
that the numbers on the locks confirmed that they were registered to Miller South. (See id. ¶ 28.)
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The Akron defendants also rely on an introductory complaint paragraph that begins by
stating that defendants initiated criminal proceedings against plaintiff “[d]espite there being very
little evidence to support the allegations . . . .” (Id. ¶ 2.) In so pleading, they insist that plaintiff
“admits there was evidence (albeit very little) to support the criminal allegations.” (Akron MTD
at 156, citing Am. Compl. ¶ 2.) “Probable cause to arrest someone exists if ‘the facts and
circumstances within the officer’s knowledge and of which he had reasonably trustworthy
information were sufficient to warrant a prudent man in believing that the arrestee had
committed or was committing an offense.’” Atkins v. Twp. of Flint, 94 F. App’x 342, 347 (6th
Cir. 2004) (quoting Diamond v. Howd, 288 F.3d 932, 936-37 (6th Cir. 2002) (further citation
omitted)). The existence of “very little evidence” hardly establishes, as a matter of law, that there
was reasonably trustworthy information that would warrant a prudent man in believing that
plaintiff had stolen the locks.5
The Akron defendants further claim that plaintiff’s state law malicious prosecution claim
fails because the factual allegations do not support the necessary element of “malice.” They
insist that the amended complaint is limited to conclusory allegations that the defendants acted
with the requisite malicious intent. (Akron MTD at 157, citing Am. Compl. ¶¶ 67, 72.)
Under Ohio law, “‘[m]alice is the state of mind under which a person intentionally does a
wrongful act without a reasonable lawful excuse and with the intent to inflict injury or under
circumstances from which the law will infer an evil intent. For purposes of malicious prosecution
it means an improper purpose, or any purpose other than the legitimate interest of bringing an

The same paragraph also provides that there was “little or no evidence” to support a criminal prosecution against
plaintiff for theft. (Am. Compl. ¶ 2.) Though the pleading suffers from a lack of precision, when viewed in a light
most favorable to plaintiff, it cannot be said to concede probable cause.
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offender to justice.’” Hamilton v. Best Buy, No. 19890, 2003 WL 22681383, at *3 (Ohio App.
Ct. Nov. 14, 2003) (quoting Criss v. Springfield Twp., 564 N.E.2d 440, 443 (Ohio 1990)).
“Malice may be inferred from the absence of probable cause.” Anderson v. Eyman, 907 N.E.2d
730, 737 (Ohio 2009) (citation omitted); see Thacker v. City of Columbus, 328 F.3d 244, 261
(6th Cir. 2003) (“Although malice is an essential element in actions for malicious prosecution,
the want of probable cause is the real gist of the action. Thus, if the lack of probable cause is
demonstrated, the legal inference may be drawn that the proceedings were actuated by malice.”)
(quotation marks and citations, including internal citations, omitted).
Here, the amended complaint alleges that defendants continued their prosecution against
plaintiff even though they lacked any evidence that would establish that the locks in question
were purchased by, or came from, Miller South. (Am. Compl. ¶¶ 24, 45.) Plaintiff further alleges
that, notwithstanding a lack of evidence, defendants pursued the prosecution to use it “to enhance
their leverage” in an internal disciplinary proceeding they initiated against plaintiff. (Id. ¶¶ 45,
47.) According to the pleading, the defendants acted in concert for the ultimate purpose of
interfering with plaintiff’s employment with APS, and as retaliation for plaintiff’s activity with
the union.6 (Id. ¶¶ 47-49.)
Plaintiff has alleged facts that, if believed, would establish that defendants initiated and
continued to pursue a criminal prosecution against him for reasons other than to bring a guilty
person to justice. Such an ulterior motive would support a finding of malice under Ohio law.

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As factual support for these allegations, plaintiff points to certain actions by defendants. For example, he claims
that defendant Moore appeared at a pretrial conference and represented that plaintiff was “obviously guilty and that
he was simply wasting the time of the Court and Akron Public Schools in not pleading guilty[.]” (Am. Compl. ¶ 38.)
Plaintiff further alleges that defendant Wammes made false statements in the disciplinary proceedings for the
purpose of harassing plaintiff. (Id. ¶ 50.)
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Additionally, defendants have not demonstrated that plaintiff has failed to allege facts that would
support a finding of a lack of malice. An absence of probable cause would also support an
inference of malice. See Thacker, 328 F.3d at 261.
While it may be a close call—and the factual support for these claims is certainly thin—
the Court concludes that these facts are sufficient to withstand a Rule 12(b)(6) motion on
plaintiff’s federal and state law malicious prosecution claims. Whether discovery will support
any of these factual allegations remains to be seen.
B.

Remaining Claims

The same facts that form the basis for plaintiffs’ malicious process claims also serve as
the foundation for the remaining claims pleaded in the amended complaint. Because at least a
part of this case survives on the pleadings, the Court finds it unnecessary to consider defendants’
other challenges to the amended complaint now inasmuch as discovery will proceed the same
regardless of which particular theories of liability are in play. Defendants shall have leave to
renew their remaining arguments on summary judgment when the Court may consider them
against the backdrop of a fully developed record.
Nonetheless, the Court recognizes that plaintiff may face a difficult hurdle on summary
judgment. In addition to the arguments advanced by defendants, the Court anticipates other
potential problems with plaintiff’s claims. Specifically, the Court notes that Ohio law is far from
settled on the question of whether statements to law enforcement may support state law claims of
malicious prosecution and defamation. See Dehlendorf v. City of Gahanna, 786 F. Supp. 2d
1358, 1360, 1365 (S.D. Ohio 2011) (finding qualified immunity available for statements made to
law enforcement, but noting that some Ohio courts have afforded absolute immunity) (collecting
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cases). Moreover, it is questionable whether plaintiff’s conspiracy claim can be maintained
against any individual defendants who are employed by the same entity that employed plaintiff.
See Fitzgerald v. Roadway Express, Inc., 262 F. Supp. 2d 849, 860 (N.D. Ohio 2003) (a plaintiff
cannot maintain a claim for tortious interference by co-workers or supervisors unless he can
demonstrate that they acted solely in their individual capacities and that they personally
benefited from the alleged interference) (citations omitted). These issues were not briefed by the
parties, and, as such, they will be reserved for another day.7
Qualified Immunity
The individual defendants maintain that, even if the Court refuses to dismiss the claims
against them on the merits, the Court should find that qualified immunity shields them from
liability for all of the claims brought against them in their individual capacities. The doctrine of
qualified immunity provides that “government officials performing discretionary functions
generally are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)
(citations omitted). The doctrine “shields an officer from suit when she makes a decision that,
even if constitutionally deficient, reasonably misapprehends the law governing the circumstances
she confronted.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 160 L. Ed. 2d 583
(2004) (citation omitted).

In highlighting potential problems with some of plaintiff’s claims, the Court is not inviting (and will not accept)
further Rule 12(b)(6) briefing from the parties. Neither is the Court signaling how the Court will rule on summary
judgment. Rather, the Court is merely suggesting that plaintiff may wish to reassess the wisdom of advancing some
of his claims.
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Because defendants have raised the qualified immunity defense, plaintiff “bears the
burden of showing that defendants are not entitled to qualified immunity.” Gavitt v. Born, 835
F.3d 623, 641 (6th Cir. 2016) (citing Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015)).
“At the pleading stage, this burden is carried by alleging facts making out a plausible claim that
defendants’ conduct violated a constitutional right that was clearly established at the time of the
violation.” Id. (citation omitted).
While a court may consider the issue of qualified immunity on a motion brought under
Fed. R. Civ. P. 12(b)(6), see Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 677 (6th Cir. 2001),
“it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis
of qualified immunity.” Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015) “Although an
[official’s] ‘entitle[ment] to qualified immunity is a threshold question to be resolved at the
earliest possible point’ . . . that point is usually summary judgment and not dismissal under Rule
12.” Id. at 433-34 (quoting Vakilian v. Shaw, 335 F.3d 509, 516 (6th Cir. 2003)) (further
citations, including internal citations, omitted). This is especially true in situations, such as the
present case, where the complaint allegations raise issues of malice and improper motive. The
fact-intensive nature of the qualified immunity analysis makes them poor candidates for
consideration before discovery has taken place. Proctor v. Applegate, 661 F. Supp. 2d 743, 76162 (E.D. Mich. 2009) (citations omitted); see also Gavitt, 835 F.3d at 640 (“if the qualified
immunity questions presented are fact-intensive, the record may not be adequately developed to
evaluate the defense at the pleading stage under Rule 12(b)(6)”) (citing Wesley, 779 F.3d at 43334)). The Court finds that defendants’ request for qualified immunity is premature because the

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record is insufficient for the Court to make the necessary fact-intensive analysis. Defendants may
reassert qualified immunity on summary judgment after discovery has taken place.
V. CONCLUSION
For all of the foregoing reasons, the Akron defendants’ motion to dismiss is denied in
part, and denied without prejudice in part, and defendant Moore’s motion to dismiss is denied as
moot.
IT IS SO ORDERED.

Dated: July 19, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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