Six et al v. Beegle et al
Filing
63
ORDER denying 56 Motion for Judgment on the Pleadings; denying 57 Motion for Judgment on the Pleadings; granting 58 Motion to Amend/Correct. Signed by Judge James L Graham on 8/16/12. (ds)
IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert B. Six, et al.,
Case No.: 2:11-cv-698
Plaintiffs
Judge Graham
v.
Magistrate Judge Abel
Robert Beegle, et al.,
Defendants.
OPINION AND ORDER
This matter is before the court on motions for judgment on the pleadings, pursuant to Fed.
R. Civ. P. 12(c), filed by two groups of individual defendants: defendants Donald Scott Fitch and
Jonathan Jenkins (doc. 56) and defendants Robert Beegle, Adam Smith, Rick Smith, William
Gilkey, Scott Trussel, and Brian Rhodes (doc. 57). Also before the court is plaintiffs’ motion for
leave to file an amended complaint (doc. 58).
I.
Facts
Plaintiffs Robert Six and Bobbi Six are residents of Meigs County, Ohio. Defendants
Fitch and Jenkins are Special Agents with the Ohio Bureau of Criminal Investigation. (Doc. 56
at 2.) Defendants Beegle, Adam Smith, Rick Smith, Gilkey, Trussel, and Rhodes are alleged to
be Meigs and Washington County Sheriff’s Office law enforcement officers. (Doc. 1 ¶¶ 4-5.)
Each of the moving defendants is sued in his individual capacity. Id. Co-defendants are various
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law enforcement officers with the Washington County Sheriff’s Office, the Columbus Division
of Police, and the Ohio Department of Natural Resources. Each co-defendant is also sued in his
or her individual capacity. (Doc. 1 at 4-5.)
Plaintiffs’ complaint alleges the following: On August 5, 2009 plaintiff Robert Six was at
his home in Meigs County, Ohio when defendants came onto his property and into his residence.
Defendants were on the premises pursuant to a search warrant issued by the Meigs County Court
of Common Pleas. The defendants seized Mr. Six and placed him in a police car. Although it
was an extremely hot summer day, defendants did not roll down the windows or turn on the air
conditioning and Mr. Six was left in the vehicle for several hours. Due to the heat, Mr. Six
became unconscious and required medical treatment.
While Mr. Six was in the police car, the defendants conducted a search of his property.
According to the complaint, defendants seized a large number of personal items, including
ammunition and hundreds of firearms. Some of the firearms belonged to each plaintiff.
Plaintiffs allege that defendants maintained two inventory lists for the items seized–one for
firearms and one for personal property. However, defendants allegedly failed to list numerous
firearms that were seized from the property. Plaintiffs also allege that during the search of the
property, the defendants observed properly tagged deer antlers and wild turkey feathers.
Defendants allegedly removed the tags and then charged Mr. Six with the crime of possessing
untagged antlers and feathers. The charges stemming from the untagged antlers and feathers
were dismissed by the Meigs County Municipal Court.
After the search, Mr. Six was charged with aggravated possession of marijuana with a
forfeiture specification seeking to forfeit “approximately three hundred firearms and
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ammunition.” The common pleas court granted the motion to dismiss the forfeiture specification
and ordered the return of the firearms and ammunition to the plaintiffs. The return of the
property was overseen by Steve Jagers of Ohio Valley Investigations who determined that
defendants failed to return some of the seized firearms. Plaintiffs allege that in addition to some
of the documented firearms, defendants seized and failed to return firearms that they failed to
document.
On August 3, 2011 plaintiffs filed five claims against defendants arising from the search
of plaintiffs’ property: illegal seizure of plaintiffs’ personal property (Claim One), damage of
personal property illegal seized (Claim Two), illegal seizure of Mr. Six’s person (Claim Three),
malicious prosecution in connection with charges brought against Mr. Six related to untagged
dear antlers and turkey feathers (Claim Four), and a conspiracy to illegally seize plaintiffs’
property and to deprive them of various constitutional rights (Claim Five). All of plaintiffs’
claims are brought pursuant to 42 U.S.C. §1983.
In a May 4, 2012 Order, the court granted motions for judgment on the pleadings brought
by defendants Staats, Rhodes, Nohe, Parks, and Roberts. (Doc. 55.) The Court held that the
complaint had failed to allege how each of the moving defendants was personally involved in the
alleged constitutional violations, and granted the moving defendants’ motions to dismiss.
However, the Court directed the clerk to defer entry of final judgment for the moving defendants,
and granted plaintiffs 20 days to move to amend their complaint. Plaintiffs’ motion to amend
their complaint in an attempt to cure the deficiency identified in the previous order is now before
the court, along with additional motions for judgment on the pleadings.
II.
Legal Standard
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A.
Motion to Amend
Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend the
complaint after a responsive pleading has been filed only by leave of the court, but “[t]he court
should freely give leave when justice so requires." FED . R. CIV . P. 15(a)(2). That standard was
construed by the Supreme Court in Foman v. Davis, 371 U.S. 178, 182 (1962):
If the underlying facts or circumstances relied upon by plaintiff may be a proper
subject of relief, he ought to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared reason--such as undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of the allowance of the amendment, futility of amendment,
etc.--the leave sought should be "freely given." Of course, the grant or denial of
an opportunity to amend is within the discretion of the District Court . . . .
Delay alone is not a ground for denying leave to amend. Dana Corp. v. Blue Cross &
Blue Shield Mut., 900 F.2d 882, 888 (6th Cir. 1990). The party opposing leave to amend must
demonstrate significant prejudice. Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir.
1999); Moore v. City of Paducah, 790 F.2d 557, 562 (6th Cir. 1986). The Court determines
prejudice considering
whether the assertion of the new claim or defense would: require the opponent to
expend significant additional resources to conduct discovery and prepare for trial;
significantly delay the resolution of the dispute; or prevent the plaintiff from
bringing a timely action in another jurisdiction.
Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994). The longer the period of unexplained
delay, the lesser the burden of demonstrating prejudice. Id. Courts have frequently found
prejudice where the amendment is made after the discovery deadline has passed. Duggins, 195
F.3d at 834 (amendment sought after discovery and case dispositive motions deadlines had
passed and while a motion for summary judgment was pending); United States v. Midwest
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Suspension and Brake, 49 F.3d 1197, 1202 (6th Cir. 1995) (Amendment sought one month
before trial); Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir. 1989); Janikowski v. Bendix Corp.,
823 F.2d 945, 952 (6th Cir. 1987). A party who moves to amend late in the lawsuit has "an
increased burden to show justification for failing to move earlier." Wade v. Knoxville Utils. Bd.,
259 F.3d 452, 459 (6th Cir. 2001) (citation omitted). Nonetheless, even amendments made on
the eve of trial are permissible when there is no demonstrable prejudice. United States v. Wood,
877 F.2d 453, 456-57 (6th Cir. 1989) (amendment permitted three weeks before trial). Further,
even if there is prejudice, the Court may fashion a remedy, such as assessing the moving party
the costs of duplicative discovery, which would permit the amendment. See Janikowski, 823
F.2d at 952; Moore v. Paducah, 790 F.2d 557, 562 (6th Cir. 1986); Adkins v. Int’l Union, 769
F.2d 330, 334 (6th Cir. 1985).
In addition to prejudice, futility may provide a basis for denying leave to amend. The
Sixth Circuit has ruled that "[i]t is well settled that the district court may deny a motion for leave
to amend a complaint if such complaint, as amended, could not withstand a motion to dismiss."
Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23 (6th Cir.
1980); Matthews v. Jones, 35 F.3d 1046, 1050 (6th Cir. 1994). A court will not ordinarily
consider the merits of a proposed amended complaint in ruling on a motion for leave to amend
unless it appears to be frivolous. See Madison Fund, Inc. v. Denison Mines Ltd., 90 F.R.D. 89,
91 (S.D.N.Y. 1981); Key Pharm., Inc. v. Lowey, 54 F.R.D. 445, 449 n.5 (S.D.N.Y. 1972).
Normally, the merits of a complaint are best resolved through a motion to dismiss or a motion for
summary judgment. WIXT Television, Inc. v. Meredith Corp., 504 F. Supp. 1003, 1010
(N.D.N.Y. 1980)). However, if there is no set of facts that could be proven under the amendment
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would constitute a valid and sufficient claim, leave should be denied. See Cooper v. American
Emp’rs’ Ins. Co., 296 F.2d 303, 307 (6th Cir. 1961).
B.
Judgment on the Pleadings
A motion for judgment on the pleadings pursuant to Rule 12(c) “should not be granted
unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim
that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also
Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998) (“The standard of review applicable to a
Rule 12(c) motion is the same as that for a Rule 12(b)(6) motion.”) (citation omitted). All wellpleaded allegations must be taken as true and must be construed most favorably toward the nonmovant. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A motion for judgment on the pleadings
is directed solely to the complaint and any exhibits attached to it. Roth Steel Prods. 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 for judgment on the pleadings. Consequently, a complaint
will be dismissed pursuant to Fed. R. Civ. P. 12(c) 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); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). However, the court “need not
accept as true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Fried
Chicken, 829 F.2d 10, 12 (6th Cir. 1987) (citations omitted).
When the complaint contains well-pleaded factual allegations, “a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content
6
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. at 678. Though “[s]pecific facts are not necessary,” Erickson, 551 U.S.
at 93, and though Rule 8 “does not impose a probability requirement at the pleading stage,”
Twombly, 550 U.S. at 556, the factual allegations must be enough to raise the claimed right to
relief above the speculative level and to create a reasonable expectation that discovery will reveal
evidence to support the claim. Iqbal, 556 U.S. at 678-79; Twombly, 550 U.S. at 555-56. This
inquiry as to plausibility is “a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has
not ‘show[n]’– ‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R.
Civ. P. 8(a)(2)).
III.
Legal Analysis
A.
Amendment of the Complaint
Plaintiffs’ proposed amended complaint is substantially similar to the initial complaint.
The changes that plaintiffs propose seek to cure the deficiency noted in the Court’s order of May
4, 2012 (doc. 55). In that order, the Court held that the plaintiffs’ complaint “failed to identify a
single action specifically taken by any one of the moving defendants. Plaintiff’s entire complaint
alleges that ‘defendants’ committed each act. There is no allegation that [any individual moving
defendant was] actually present . . . .” (Doc. 55 at 5.) Plaintiffs seek to cure this deficiency with
their amended complaint by changing general allegations about “defendants” into specific
allegations regarding named individual defendants. There are a large number of specific
allegations, and in most cases, many versions of the same allegation are made in the alternative.
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For example, where the original complaint alleges that “[d]efendants seized the person of Mr. Six
and placed him into the back seat area of a police vehicle,” (doc. 1 ¶ 14), the proposed amended
complaint includes eleven different paragraphs that allege, in the alternative, that eleven different
defendants placed Mr. Six in a police car. (Doc. 58-1 ¶¶ 14, 23, 26, 29, 32, 35, 38, 41, 44, 47,
50). Each of these alternative allegations does what the original complaint failed to do by
alleging “a single action specifically taken” by a specific defendant. For example, paragraph 14
of the proposed amended complaint alleges that “[d]efendant Scott Fitch seized the person of Mr.
Six and placed him into the back seat area of a police vehicle and detained him there for several
hours on a hot day with the windows rolled up.” (Doc. 58-1 ¶ 14.)
Defendants argue that the proposed amended complaint fails to cure the deficiency
identified in the prior order, and that allowing the amendment would thus be futile. Defendants
Fitch and Jenkins argue that the proposed amended complaint “amounts to nothing more tha[n]
changing the form of Plaintiffs’ Complaint, without altering the substantive deficiency already
identified by the Court.” (Doc. 59 at 3.) Defendant Nohe and four co-movants similarly claim
that “the Proposed Amended Complaint fails to put Defendants on notice as to which claims are
attributed to their personal actions.” (Doc. 60 at 4.) This argument is difficult to square with the
text of the proposed amended complaint. Paragraph 47 of the proposed amended complaint
alleges that “[d]efendant Greg Nohe seized the person of Mr. Six and placed him into the back
seat area of a police vehicle and detained him there for several hours on a hot day with the
windows rolled up.” (Doc. 58-1 ¶ 47.) This allegation clearly puts defendant Nohe on notice
8
that plaintiffs allege that he put Mr. Six in a hot car.1
The changes proposed by plaintiffs are more than a shift in form. The plaintiffs seek to
add substance to their complaint where previously it was lacking. Allegations that “defendants”
took some action (for example, putting Mr. Six in a car, an action which ordinarily is not
accomplished by 15 people at once) may leave any specific defendant wondering whether they
are alleged to have taken that specific action. But an allegation that a specific defendant took a
specific action puts that defendant on notice. That the complaint also alleges, in the alternative,
that other defendants took the same action, does not change the fact that the proposed amended
complaint is clear in its allegations against specific defendants. Specific allegations against
specific defendants cure the deficiency identified in the Court’s previous order.
Moving defendants also argue that the proposed amendment would be futile because the
factual allegations in the proposed amended complaint are implausible. (Doc. 59 at 3; doc. 60 at
4.) For example, movants argue that plaintiffs “allege Defendants Fitch and Jenkins were in two
different places at the same time.” (Doc. 59 at 3.) According to movants, the amendment would
be futile because plaintiffs’ plead inconsistently that Fitch and Jenkins were both outside of
plaintiffs home, putting Mr. Six into a squad car, and inside the home conducting a search. (Doc.
59 at 3-4.) But inconsistent claims are specifically allowed by Federal Rule of Civil Procedure
8(d)(3): “A party may state as many separate claims or defenses as it has, regardless of
consistency.” Furthermore, there is nothing inconsistent about alleging that one person could be
in two different places over the course of a search lasting “several hours.” (Doc. 58-1 ¶ 14.) For
1
At this stage of litigation, the Court assumes that this allegation has “evidentiary support or . . . will likely
have evidentiary support after a reasonable opportunity for further investigation or discovery . . . .” F ED . R. C IV .
P RO . R. 11(b)(3).
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these reasons, plaintiffs’ proposed amendments to their complaint would not be futile.2
B.
Judgment on the Pleadings
Moving defendants present arguments that each of the five counts in plaintiffs’ complaint
and proposed amended complaint should be dismissed.
i.
Illegal Seizure of Property
Defendants argue that plaintiffs’ claims related to the seizure of property, particularly
guns, must fail because seizure of guns is permitted by the search warrant. (Doc. 56 at 5-7; doc.
57 at 6-7; doc. 59 at 5-7; doc. 60 at 5-6.) The search warrant describes the property that may be
seized in detail:
Marijuana or other drugs, in any form or condition, rolling papers, pipes, bongs or
other devices, instruments or things used in the cultivation, preparation/processing
or sale of Marijuana and/or the processing of the same, together with any records .
. . evidencing the cultivation, preparation/processing or distribution of Marijuana
or other illegal drugs relating to the cultivation preparation/processing or sale of
Marijuana, said drugs and contraband, or some part thereof, other illegal drugs,
dangerous drugs or controlled substances, concealed in and at the premises
described herein and above as being the residence, at said location, evidence of
possession, distribution and cultivation of marijuana and drugs in violation of
2925 of the Ohio Revised Code, along with any related evidence.
(Doc. 17-1 at 2.)
This authorization does not mention firearms. Defendants nonetheless make three arguments
that this text nonetheless authorizes the seizure of guns.
First, defendants argue that the warrant authorizes the seizure of guns by authorizing the
seizure of “various tools, devices, objects or things used in the cultivation,
2
In addition to these arguments, defendants opposing plaintiffs’ motion to amend make several arguments
that are unrelated to the amendment of the complaint, but instead go to the substance of both the initial and proposed
amended complaint. Those arguments that, if supported, would require dismissal of one or more of plaintiffs’ claims
against moving defendants are addressed below.
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preparation/processing or sale of Marijuana . . . .” (Doc. 17-1 at 2.) This argument rests on the
idea that “[g]uns and drugs can go hand in hand.” (Doc. 56 at 6.) Guns and drugs certainly can
go hand in hand, but not all guns are linked to drugs. Evidence may surface that, in this case,
officers conducting the search reasonably believed that the guns at issue were used in the drug
trade, but no such evidence is before the court.
Next, defendants argue that the guns represent “proceeds from the . . . sale of Marijuana .
. . .” (Doc. 17-1 at 2.) Movants argue that “a reasonable, objective law enforcement officer at
this search could conclude that the plaintiffs . . . . used their illegal proceeds to cultivate Mr.
Six’s firearm collection . . . .” (Doc. 56 at 6; see also doc. 57 at 7.) Defendants may be able to
support this claim in subsequent stages of this litigation, but in considering a motion to dismiss,
the court views the evidence in a light most favorable to the plaintiff. Plaintiff alleges that the
seized firearms were unrelated to the drug trade, and that officers lacked probable cause to
believe there was any connection between the guns and the drug trade. (Doc. 58-1 ¶ 96.) None
of plaintiffs’ allegations suggest a connection between the seized guns and drugs.
Finally, defendants argue that the warrant authorized the seizure of the firearms because
they were “evidence of possession, distribution and cultivation of marijuana and drugs . . . .”
(Doc. 17-1 at 2; see also doc. 59 at 7.) Again, while defendants may present evidence that these
guns were evidence of drug crimes, the court will not accept the proposition promoted by
defendants that guns are necessarily evidence of drugs.
ii.
Illegal Seizure of Personal Property by Damaging it
Movants argue that plaintiffs’ second claim fails because “Plaintiffs allege no factual
grounds to support a plausible belief that these Defendants improperly converted their property . .
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. . They do not allege which firearms were taken by which Defendant. They did not allege how,
where, or when these officials took such firearms. They did not allege who was present when the
improper conversion took place.” (Doc. 59 at 9; see also doc. 60 at 5-6.)
Plaintiffs include the same allegations against all fifteen defendants. They allege that
each defendant “failed to return the Plaintiffs’ personal property that he [or she] illegally seized .
. . .” (Doc. 58-1 ¶¶ 67, 71, 75, 79, 83, 87, 98, 101, 106, 110, 114, 118, 122, 126, 130.) Contrary
to movants’ arguments, the facts alleged give rise to a plausible claim that each defendant
“improperly converted their property.” Defendants argue that plaintiffs do not allege which
firearms were taken by which defendant. However, plaintiffs do include two lists of guns that
they allege were inventoried and seized by defendants, but not returned. (Docs. 1-5, 1-6.) True,
plaintiffs do not allocate each gun to a specific defendant, instead, the complaint suggests that
each defendant converted each gun. At this stage of litigation, these allegations in the alternative
are sufficiently specific. Defendants also argue that plaintiffs do not allege “how, where, or
when these officials took such firearms.” (Doc. 59 at 9.) But the proposed amended complaint is
explicit on this point–the guns were taken during the search, plaintiffs allege.
iii.
Illegal Seizure of Mr. Six
Plaintiffs allege that Mr. Six was put “into the back seat area of a police vehicle and
detained . . . there for several hours on a hot day with the windows rolled up. . . . The police
vehicle . . . was not running, there was no air conditioning, no ventilation fan running and . . . it
was extremely and unreasonably hot inside the police cruiser . . . [and] Mr. Six passed out and
became unconscious due to the heat and lack of ventilation while he was being detained in the
police vehicle.” (Doc. 58-1 ¶¶ 14-19.) Plaintiffs further allege that Mr. Six attempted and failed
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to get the attention of defendants to alert them to the conditions under which he was detained.
(Doc. 58-1 ¶ 21.)
Defendants Fitch and Jenkins argue that these allegations fail to state a claim that
defendants violated Mr. Six’s rights because the defendants did not know of and disregard a
substantial risk of serious harm. (Doc. 59 at 10.) Viewing the allegations in a light most
favorable to the plaintiffs, plaintiffs have alleged a situation in which any reasonable officer
would know that an enclosed car would become unreasonably hot after a number of hours.
Though Mr. Six alleges he attempted to do so, his claim does not fail because he failed to get the
attention of officers and alert them to the rising heat in the vehicle. This would be a particularly
unreasonable requirement considering that for at least part of the time that he was confined to the
vehicle, Mr. Six alleges that he was unconscious. Defendants attempt to analogize a hot car to
handcuffs that are too tight in order to establish that Mr. Six was required to inform them of the
problem. (Doc. 59 at 11.) This analogy plainly fails. First, a detainee being handcuffed has no
impediment to telling officers that they are too tight, whereas Mr. Six alleges that he was
enclosed in a car as the temperature rose. He alleges that he attempted to alert officers before he
became unconscious, but failed. Second, while it might not be apparent to an officer that a
detainee’s handcuffs are too tight, an officer placing a detainee in a closed squad car on a hot day
has all the information necessary to surmise that temperatures inside the vehicle might rise.
iv.
Malicious Prosecution
Defendants Fitch and Jenkins make several arguments that plaintiffs’ claim for malicious
prosecution must fail. (See doc. 56 at 7-8.) However, plaintiffs’ amended complaint only
includes defendants Woods and Shields in the malicious prosecution claim. (Doc. 58-1 at 45.)
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v.
Civil Conspiracy
Moving defendants argue that plaintiffs have failed to plead with sufficient specificity to
state a claim for a conspiracy under 42 U.S.C. § 1983. (See doc. 56 at 8-9; doc. 57 at 8-9.)
Under § 1983, “[a]ll 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.” Hooks v. Hooks, 771
F.2d 935, 944 (6th Cir. 1985). Further, “[i]t is well-settled that conspiracy claims must be pled
with some degree of specificity and that vague and conclusory allegations unsupported by
material facts will not be sufficient to state a claim under § 1983.” Gutierrez v. Lynch, 826 F.2d
1534, 1538 (6th Cir. 1987). Specific allegations must be sufficient to make claim of civil
conspiracy plausible. See Iqbal, 556 U.S. at 679.
Plaintiffs identify five paragraphs in their amended complaint that they argue sufficiently
plead their civil conspiracy claim. (See doc. 62 at 9-10.) Some of these allegations are mere
conclusory statements. For example, in paragraph 172, plaintiffs allege that “[t]he actions taken
by defendants . . . were done as part of a conspiracy in which all of the Defendants participated,
to engage in conduct which violated the constitutional rights of the Plaintiffs.” (Doc. 58-1 ¶
172.) This allegation sets forth no specific facts that would make the bare allegation of
conspiracy plausible. However, of the five paragraphs that plaintiffs argue support their
conspiracy claim, two do include specific allegations. Paragraphs 169 and 170 allege that “[t]he
Defendants[’] actions taken at the Plaintiffs’ . . . property was discussed among the Defendants
and a plan was developed by the Defendants prior to the search and seizure. The illegal seizure
and holding the Plaintiffs’ personal property was discussed among the Defendants and a plan was
14
developed by the Defendants prior to the search and seizure.” (Doc. 58-1 ¶¶ 169-70.) These
allegations that defendants met, discussed plans, and agreed to violate plaintiffs’ rights are
sufficient to survive dismissal at this stage.
IV.
Conclusion
For the foregoing reasons, plaintiffs’ motion for leave file an amended complaint (doc.
58) is GRANTED. The motions for judgment on the pleadings (docs. 56, 57) are DENIED.
IT IS SO ORDERED.
s/ James L. Graham
James L. Graham
UNITED STATES DISTRICT JUDGE
Date: August 16, 2012
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