Ruff-El v. Nicholas Financial Inc. et al

Filing 27

ORDER granting 12 Motion to Dismiss. Signed by Magistrate Judge Terence P Kemp on 1/26/12. (jcw1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Gerry Ruff-El,

:

Plaintiff,

:

v.

:

Case No. 2:11-cv-0618

:
Nicholas Financial Inc.
et al.,

Magistrate Judge Kemp
:

Defendants.
OPINION AND ORDER
This matter is before the Court to consider the motion to
dismiss filed by defendants Todd Stonewall, Nicholas Financial,
Inc. and Peter L. Vosotas (the Nicholas defendants).
has been fully briefed.

The motion

For the following reasons, the motion to

dismiss will be granted.
I.

Background

Plaintiff Gerry Ruff-El filed this action as a result of the
seizure of some of his property by alleged agents of defendant
Nicholas Financial.

In addition to the defendants who have moved

to dismiss, Mr. Ruff-El named as defendants the Columbus Police
Department and several police officers including Chief of Police
Walter L. Distelweig, Travis D. Fisher, Joshua S. Daugherty, Lisa
M. Ickes, Austin C. Summers, Matt E. Harris, Larry E. Ferguson,
and John A. Sullivan (the City defendants).

The individual City

defendants have been named in both their “official and personal”
capacities and are alleged to have unlawfully arrested Mr. RuffEl in connection with the seizure of his property.

Mr. Ruff-El

also has named Gregory Green and Gregory Swartz as defendants.
According to the complaint, it appears that Mr. Green and Mr.
Swartz are the alleged agents of Nicholas Financial involved in

the seizure of Mr. Ruff-El’s property.

The Court’s docket

reflects that service has not been made on Mr. Green or Mr.
Swartz.

Mr. Ruff-El asserts a number of federal and state law

claims in his complaint including breach of fiduciary duties,
violations of 42 U.S.C. §1983 and §1985, breach of contract,
assault, battery, fraud, and violations of 18 U.S.C. §242 and
§1652.
II.

The Motion to Dismiss

The Nicholas defendants have moved pursuant to Fed.R.Civ.P.
12(b)(6) to dismiss Mr. Ruff-El’s claims against them for failure
to state a claim upon which relief can be granted.

According to

their motion, all of Mr. Ruff-El’s claims fail for various
reasons.

In response, Mr. Ruff-El has filed a document captioned

as a “writ of mandamus to strike scandalous immaterial,
impertinent, materials from defendants Todd Stonewall, Nicholas
Financial, Inc and Peter L, Vosotas motion to dismiss and
memorandum, legal argument and conclusion.”

Through this filing,

Mr. Ruff-El expresses his disagreement with various statements
made by the Nicholas defendants in their motion to dismiss,
requests that these statements be stricken, and seeks to remind
the Court of its responsibility to pro se litigants.

In reply,

the Nicholas defendants assert that Mr. Ruff-El’s filing is not
responsive to the motion to dismiss.

They note that pro se

litigants are not exempt from the Federal Rules of Civil
Procedure and request that Mr. Ruff-El’s claims against them be
dismissed with prejudice at his cost.
III.

Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not
be granted if the complaint contains “enough facts to state a
claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007). All well-pleaded factual
allegations must be taken as true and be construed most favorably
toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232, 236
-2-

(1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009).
Rule 8(a) admonishes the Court to look only for a “short and
plain statement of the claim,” however, rather than requiring the
pleading of specific facts. Erickson v. Pardus, 551 U.S. 89
(2007).
A 12(b)(6) motion to dismiss is directed solely to the
complaint and any exhibits attached to it. Roth Steel Products v.
Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The
merits of the claims set forth in the complaint are not at issue
on a motion to dismiss for failure to state a claim.
Consequently, a complaint will be dismissed pursuant to Fed. R.
Civ. P. 12(b)(6) only if there is no law to support the claims
made, or if the facts alleged are insufficient to state a claim,
or if on the face of the complaint there is an insurmountable bar
to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,
702 (6th Cir. 1978). Rule 12 (b)(6) must be read in conjunction
with Fed. R. Civ. P. 8(a) which provides that a pleading for
relief shall contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." 5A Wright &
Miller, Federal Practice and Procedure § 1356 (1990). The moving
party is entitled to relief only when the complaint fails to meet
this liberal standard. Id.
On the other hand, more than bare assertions of legal
conclusions is required to satisfy the notice pleading standard.
Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th
Cir. 1988). "In practice, a complaint must contain either direct
or inferential allegations respecting all the material elements
to sustain a recovery under some viable legal theory." Id.
(emphasis in original, quotes omitted).
"[w]e are not holding the pleader to an impossibly high
standard; we recognize the policies behind rule 8 and
the concept of notice pleading. A plaintiff will not
be thrown out of court for failing to plead facts in
support of every arcane element of his claim. But when
a complaint omits facts that, if they existed, would
clearly dominate the case, it seems fair to assume that
those facts do not exist."
-3-

Id. It is with these standards in mind that the motion to dismiss
will be decided.
IV. Analysis
As described above, Mr. Ruff-El has set forth both federal
and state law claims against the Nicholas defendants in his
complaint.

The Court will address the motion to dismiss as it

relates to his federal claims first.
Mr. Ruff-El’s first federal claim arises under 42 U.S.C.
§1983.

According to the Nicholas defendants, §1983 applies only

to persons acting under color of state law and they are private
parties who cannot be considered state actors.

There is no

question that only a “‘state actor’” acting “‘under color of
law’” can be liable under §1983.

Moldowan v. City of Warren, 578

F.3d 351, 399 (6th Cir. 2009) quoting Tahfs v. Proctor, 316 F.3d
584, 590 (6th Cir. 2003).

Nicholas Financial, Inc. appears to be

a private corporation and there are no allegations in the
complaint suggesting that it is any type of state entity.
Further, although the complaint does not explain the relationship
between the individual Nicholas defendants and the corporation,
the motion to dismiss represents that Mr. Stonewall and Mr.
Vosotas are employees of Nicholas Financial, Inc.
does not dispute this representation.

Mr. Ruff-El

As a result, Mr. Stonewall

and Mr. Vosotas appear to be private citizens and not state
employees for purposes of Mr. Ruff-El’s claims against them.
A private actor’s conduct can be considered attributable to
the state only if one of three alternative tests is satisfied:
(1) the public function test; (2) the state-compulsion test; or
(3) the nexus, or symbiotic-relationship, test.

Mr. Ruff-El has

failed to allege any facts suggesting that the Nicholas
defendants satisfy any of these tests.

Moldowan, at 399.

Consequently, the motion to dismiss will be granted as to this
claim.
Mr. Ruff-el also asserts a claim under 42 U.S.C. § 1985.
-4-

That statute prohibits conspiracies interfering with civil
rights.

Subsection (1) of §1985 relates to a conspiracy to keep

a person from accepting or holding an office or preventing him
from discharging his duties.

Subsection (2) deals with a

conspiracy to obstruct justice with the intent to deny equal
protection of the law.

Subsection (3) is directed to

conspiracies to deprive persons or classes of persons of
federally protected rights based on some protected class such as
race, gender, or religion.

Williams v. Wayne County, 2011 WL

479959 (E.D. Mich. Feb. 4, 2011).
In his complaint, Mr. Ruff-El does not identify under which
particular prong of §1985 his claim arises.

Rather, he alleges

that the defendants conspired to deprive him of his right to
equal protection under the law and to take his property without
due process.

Based on this allegation, the Court construes Mr.

Ruff-El’s claim as one brought under subsection (3).
To state a claim for relief under 42 U.S.C. §1985(3), a
complaint must allege that defendants “1) conspired 2) for the
purpose of depriving any person or class of the equal protection
of the laws, and that 3) one or more of the conspirators
committed an act in furtherance of the conspiracy, 4) ‘whereby
another was injured in his person or property or deprived of
having and exercising any right or privilege of a citizen of the
United States.’” Watkins v. New Albany Plain Local Schools, 711
F.Supp.2d 817 (S.D. Ohio 2010) (Graham, J.) quoting Domokur v.
Milton Township Bd. of Trustees, 2007 WL 2688175(N.D. Ohio Sept.
10, 2007) (citations omitted).
As explained by the Court in Watkins,
The claim must be based on “some racial, or perhaps
otherwise class-based, invidiously discriminatory
animus behind the conspirators' action.” Griffin v.
Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29
L.Ed.2d 338 (1971); O'Neill v. Grayson County War
Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973) (a
-5-

§1985(3) claim “must be founded on a class-based
invidious discrimination.”). That is, 42 U.S.C.
§1985(3) covers “only those conspiracies against: (1)
classes who receive heightened protection under the
Equal Protection Clause; and (2) those individuals who
join together as a class for the purpose of asserting
certain fundamental rights.” Warner v. Greenebaum,
Doll & McDonald, 104 Fed.Appx. 493, 498 (6th Cir. 2004)
(citations omitted). A class covered under § 1985(3)
must be “more than a group of individuals who share a
desire to engage in conduct that the §1985(3) defendant
disfavors.” Bray v. Alexandria Women's Health Clinic,
506 U.S. 263, 269, 113 S.Ct. 753, 122 L.Ed.2d 34
(1993).
Because Mr. Ruff-El has not claimed that any violations he
alleges were motivated by a class-based animus, he has failed to
adequately allege a violation of 1985(3).

Consequently, the

Nicholas defendants’ motion to dismiss will be granted as to this
claim.
Mr. Ruff-El also asserts a claim against the Nicholas
defendants for violations of 18 U.S.C. §242 and §1652, both
federal criminal statutes.

The Nicholas defendants contend that

these federal criminal statutes do not give rise to a private
cause of action.

Further, they contend that 18 U.S.C. §1652

relates to piracy on the high seas and has no application to Mr.
Ruff-El’s claims.
As a general matter, private individuals have no standing to
enforce federal criminal statutes.

That enforcement must occur,

if at all, by way of a criminal action instituted by the United
States.

See, e.g., American Postal Workers Union v. Independent

Postal System of America, 481 F.2d 90 (6th Cir. 1973).
Moreover, it is well-settled that no private right of action
exists under 18 U.S.C. §242, a statute which criminalizes certain
deprivations of civil rights.

U.S. v. Oguaju, 76 Fed.Appx. 579

(6th Cir. July 9, 2003); see also Kelly v. City of New
Philadelphia, 2011 WL 3705151 (N.D. Ohio Aug. 22, 2011)(citing
cases).

Further, no court has concluded that Congress intended
-6-

to create a private civil right of action in favor of private
individuals under 18 U.S.C. §1652.

Even if a private right of

action existed under this statute, it would have no relationship
to Mr. Ruff-El’s claims here.

Rather, that statute establishes

that any United States citizen who commits various crimes on the
high seas, including murder or robbery, is a pirate subject to
life imprisonment.

Mr. Ruff-El has alleged no facts supporting

such a claim.
With respect to Mr. Ruff-El’s state law claims, where a
district court would have jurisdiction over state law claims
solely by way of supplemental jurisdiction and the federal claims
are dismissed, the state law claims should be dismissed without
reaching their merits.
Cir. 2001).

Sharwell v. Selva, 4 Fed.Appx. 226 (6th

As set forth above, the complaint states no viable

federal claim against any of the Nicholas defendants.

Further,

it appears from the allegations of the complaint that the Court
lacks independent jurisdiction over Mr. Ruff-El’s state law
claims under the diversity statute because complete diversity
does not exist between Mr. Ruff-El and all of the defendants.
Accordingly, the Nicholas defendants’ motion to dismiss will be
granted without prejudice as to Mr. Ruff-El’s state law claims of
breach of fiduciary duty, breach of contract, assault, battery
and fraud.
V.

Disposition

For all of the reasons stated above, the motion to dismiss
(#12) is granted.

This dismissal is without prejudice to Mr.

Ruff-El’s ability to pursue his state law claims in state court
should he so choose.

/s/ Terence P. Kemp
United States Magistrate Judge

-7-