Jones v. Swank et al

Filing 31

OPINION AND ORDER granting 29 Motion for Extension of Time; granting 24 Motion for Judgment on the Pleadings. Signed by Judge James L Graham on 4/18/13. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Titus Jones,
v.

Case No. 2:11-cv-797

Plaintiff,

Judge Graham

Antoinette (Jones) Swank, et al.,

Magistrate Judge Kemp

Defendants.
OPINION AND ORDER
Plaintiff Titus Jones brings this action pro se under 42 U.S.C. § 1983 for malicious
prosecution and for conspiracy to maliciously prosecute. The defendants in this action are: the
Lucas County Child Support Enforcement Agency and the Lucas County Clerk of Court, J. Bernie
Quilter (the “Lucas County defendants”); and the Franklin County Child Support Enforcement
Agency and its agents Melissa Waterfield and Susan Brown (the “Franklin County defendants”).
Jones alleges that defendants deprived him of his rights by influencing a decision made by the
Franklin County prosecutor to prosecute him for not paying child support.
This matter is before the court on the motion of the Lucas County defendants for judgment
on the pleadings. For the reasons stated below, the motion is granted.
I.

Background
The complaint asserted numerous claims against multiple defendants.

Each of the

defendants moved to dismiss under Fed. R. Civ. P. 12(b) on various grounds, including insufficient
service of process and failure to state a claim. The court’s August 19, 2012 Opinion and Order
dismissed all but the Lucas County defendants and the Franklin County defendants and dismissed all
but the following claims against them: § 1983 claims for malicious prosecution and conspiracy to
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maliciously prosecute; and state law claims for abuse of process, conspiracy, and intentional
infliction of emotional distress.
As noted in the August 19, 2012 Opinion and Order, the complaint contains few factual
allegations and is difficult to decipher. Having liberally construed the complaint and allowed Jones
to amend the complaint with a later submission (doc. 18), the court found that the claims now
remaining all related to the charges brought against Jones for failure to pay child support. The
complaint alleges that Jones was divorced in 1999 and that a court issued a child support order in
2001. Jones further alleges that around August 2009, the Franklin County defendants caused a
criminal non-support proceeding to be initiated against him. Jones states that he was arrested in
August 2009 but was released because he had not been given notice that the proceeding had been
initiated. The proceeding was later dismissed when it was found that Jones had fully paid his child
support obligations. Jones apparently had previously resided in Lucas County, and he contends that
the Lucas County defendants conspired with the Franklin County defendants to have him
maliciously prosecuted. He further contends that the Lucas County defendants failed to fully
disclose information in their possession about Jones; had they done so, he alleges, the non-support
proceeding would not have been initiated.
As explained in the August 19, 2012 Opinion and Order, a review of the Franklin County
Clerk of Court’s website confirms that criminal charges were filed against Jones on July 30, 2009 for
an alleged failure to pay child support. See Case Number 09 CR 004571. Jones failed to appear for
an August 12, 2009 arraignment and was arrested on August 28, 2009, then released on bond on
August 31, 2009. The case was nolled on March 24, 2010, with an entry that Jones had paid the
child support at issue. Since these facts are part of a public record, the court may take judicial notice

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of them in the context of resolving a Rule 12 motion. See Passa v. City of Columbus, 123 Fed.
App’x 694, 697-98 (6th Cir. 2005).
At the motion to dismiss stage, the Lucas County defendants’ arguments were limited to
statute of limitations grounds. The court rejected those arguments as they related to the § 1983
claims for malicious prosecution and conspiracy to maliciously prosecute, and to the state law claims
for abuse of process, conspiracy, and intentional infliction of emotional distress. The Lucas County
defendants now move for judgment on the pleadings, arguing that the complaint does not
sufficiently allege either an official capacity or individual capacity cause of action under § 1983 and
that defendants are immune from liability in relation to the state law claims.
Jones has filed an opposition brief to the motion for judgment on the pleadings. His
opposition brief does not squarely address the Lucas County defendants’ legal arguments. Rather,
Jones states that he had requested records from the Lucas County defendants. It is unclear what
records Jones is referring to, but they presumably relate to the divorce and child support order.
Jones contends that if the defendants had given him the records, he would not have been wrongfully
prosecuted.
II.

Standard of Review
A motion for judgment on the pleadings pursuant to Rule 12(c) should not be granted

“unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46 (1957). The standard
applied to motions for judgment on the pleadings is the same standard applicable to motions to
dismiss under Rule 12(b)(6). See Warrior Sports, Inc. v. National Collegiate Athletic Ass’n, 623 F.3d
281, 284 (6th Cir. 2010). “For purposes of a motion for judgment on the pleadings, all well-pleaded
material allegations of the pleadings of the opposing party must be taken as true, and the motion
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may be granted only if the moving party is nevertheless clearly entitled to judgment.” JPMorgan
Chase Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (internal citation and quotation
marks omitted). However, the court need not accept as true legal conclusions or unwarranted
factual inferences. Id. (citing Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999)).
To withstand a Rule 12(c) motion for judgment on the pleadings, “a complaint must contain
direct or inferential allegations respecting all the material elements under some viable legal theory.”
Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). “The
factual allegations in the complaint need to be sufficient to give notice to the defendant as to what
claims are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the legal claim
plausible, i.e., more than merely possible.” Fritz v. Charter Township of Comstock, 592 F.3d 718,
722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A “’legal conclusion
couched as a factual allegation’” need not be accepted as true, nor are recitations of the elements of
a cause of action sufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
III.

Discussion
A.

Section 1983 Claims
1.

Official Capacity

Under § 1983, an individual may bring a private right of action against anyone who, under
color of state law, deprives a person of rights, privileges, or immunities secured by the Constitution
or federal statutes. See King v. Taylor, 694 F.3d 650, 661 (6th Cir. 2012). The complaint brings suit
against the Lucas County Child Support Enforcement Agency and against the Lucas County Clerk
of Court, J. Bernie Quilter, in both his official and individual capacities.

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Local governmental entities, like the Lucas County Child Support Enforcement Agency and
the Lucas County Clerk of Court, cannot be held liable under § 1983 based on respondeat superior;
rather, “liability only attaches where a custom, policy, or practice attributable to the [county] was the
‘moving force’ behind the violation of the plaintiff’s constitutional rights.” Heyerman v. Cnty. of
Calhoun, 680 F.3d 642, 647-48 (6th Cir. 2012) (citation omitted). A plaintiff must allege the
existence of an official policy or custom and allege that the policy or custom caused the deprivation
of his rights. Id.; Monell v. Dept. of Social Servs., 436 U.S. 658 (1978).
With respect to the malicious prosecution claim, the defendants correctly argue that the
complaint contains no allegation of an official custom or policy. Jones does not dispute this
argument in his opposition brief. The complaint alleges only that the Clerk of Court “chose a
derelict of duty in not giving request[ed] information” and that the Clerk decided “to withhold the
records.” Compl., ¶¶ 5, 31. The complaint does not allege any specific factual circumstances
surrounding Jones’s request for records or the Clerk’s alleged refusal to provide records, and
nowhere has Jones alleged that defendants were following an official custom or policy in connection
with their alleged refusal to provide Jones with records. The court thus finds that the complaint fails
to state a § 1983 claim for malicious prosecution against the Lucas County Child Support
Enforcement Agency and the Lucas County Clerk of Court in his official capacity.
The court reaches the same conclusion with respect to the conspiracy claim. Jones has made
only a conclusory assertion that the defendants conspired with defendant Waterfield to “omit the
reports.” Doc. 18 at 2. The complaint is devoid of any additional factual allegations about the
nature of the conspiracy and fails to support a plausible inference that a custom or policy existed in
connection with the alleged conspiracy.

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2.

Individual Capacity

The complaint also fails to state a § 1983 claim against the Clerk in his individual capacity.
In order to state a malicious prosecution claim under § 1983, a plaintiff must demonstrate that (1)
the defendant participated in the decision to prosecute the plaintiff, (2) probable cause did not
support the institution of legal process, (3) the plaintiff suffered a Fourth Amendment deprivation
of liberty in addition to the initial seizure as a result of the institution of proceedings, and (4) the
legal proceedings resulted in the plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir.
2010).
As to the first element of participation, the court provisionally noted at the motion to
dismiss stage that the complaint could be liberally construed to allege that the Lucas County
defendants supplied inaccurate or incomplete information to the Franklin County defendants or the
Franklin County prosecutor. A claim may be brought against a defendant who makes, participates
in, or directly influences or aids the decision to prosecute. See Sykes, 625 F.3d at 308.
Jones now concedes in his opposition that the conduct for which he sued the Clerk is the
Clerk’s alleged refusal to provide him with records. See doc. 28 at 1 (alleging that defendant withheld
records that Jones had requested), at 4 (“Plaintiff requested from the clerk a copy of the record in
[their] custody and control[.] . . . [The] record was not given.”), at 5 (alleging that defendant had “not
given the requested records to the plaintiff”). Jones contends that had the Clerk provided him with
the records, Jones in turn would have used that information to dispel or defend himself against the
conclusion or determination made by the Franklin County defendants and Franklin County
prosecutor that he had violated the child support order. Jones’s concession establishes that the
Lucas County defendants did not make, participate in, or directly influence or aid the decision to

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prosecute. See Sykes, 625 F.3d at 308 n.5 (conduct must be more than passive in order to constitute
participation).
Even if the court were to put aside Jones’s concession and construe the complaint as alleging
that the Clerk supplied inaccurate or incomplete information to the Franklin County defendants or
prosecutor, the claim would still fail. The provision of information constitutes participation in the
decision to prosecute and is actionable when: (1) the defendant intentionally stated a falsehood, or
showed reckless disregard for the truth, and (2) the allegedly false or omitted information was
material to the finding of probable cause used to support the institution of legal process. Sykes, 625
F.3d at 312. Again, the complaint contains no specific factual allegations about the records or
information that the Clerk allegedly supplied to the Franklin County defendants or prosecutor. 1 The
court thus finds that the complaint does not contain allegations from which a plausible inference
could be made that the Clerk made a false statement to the Franklin County defendants or Franklin
County prosecutor. Moreover, the complaint contains no allegations that the Clerk acted with the
requisite intent or reckless disregard for the truth.
The complaint is similarly deficient as to the conspiracy claim against the Clerk in his
individual capacity. A civil conspiracy under § 1983 is “an agreement between two or more persons
to injure another by unlawful action.” Hooks v. Hooks, 771 F.2d 935, 943–44 (6th Cir. 1985). Such
Jones states in one of his filings that the Clerk incorrectly reported the year of his divorce to
the Franklin County defendants. See doc. 18 at 2. But Jones makes no further allegations that the
Clerk made this misstatement with an intent to deceive or that it was material to the prosecutor’s
finding of probable cause that Jones had violated the child support order.
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In the same filing, Jones states that the Lucas County Child Support Enforcement Agency
has records reflecting his history of making child support payments, which were automatically
withheld from his wages. See doc. 18 at 2-3. This allegation is not made against the Clerk, but even
if it were, Jones does not allege that the Clerk made intentionally false representations to the
Franklin County defendants or prosecutor about his history of making child support payments.
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claims must be pled with a degree of specificity; vague and conclusory allegations are not sufficient.
Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003). The complaint merely makes a speculative
and conclusory allegation that the defendants conspired with defendant Waterfield.

This is

insufficient to support a § 1983 claim for conspiracy against the Clerk.
B.

State Law Claims

The complaint asserts claims for abuse of process, conspiracy, and intentional infliction of
emotional distress.

These claims arise from the same set of facts alleged in the malicious

prosecution claim. Liberally construed, the complaint alleges that defendants’ failure to provide
records resulted in the Franklin County prosecutor initiating a criminal proceeding against Jones.
That legal proceeding was then allegedly abused, which inflicted emotional distress upon Jones.
The Lucas County defendants argue that they are immune from liability in their official and
individual capacities. Jones offers no opposition to this argument. Under Ohio law, a political
subdivision is shielded from civil liability for the acts or omissions of the political subdivision or its
employees that are related to a governmental function. See O.R.C. § 2744.02(A)(1); Sudnik v. Crimi,
117 Ohio App.3d 394, 398-99, 690 N.E.2d 925, 922-28 (Ohio Ct. App. 1997). An employee of a
political subdivision is immune in his individual capacity for acts or omissions that take place within
the scope of his employment. See O.R.C. § 2744.03(A)(6); Blankenship v. Enright, 67 Ohio App.3d
303, 312-13, 586 N.E.2d 1176, 1181-82 (Ohio Ct. App. 1990).
The alleged acts and omissions of the Lucas County defendants relate to their response (or
non-response) to Jones’s records requests. The only plausible inference to be drawn from the
allegations is that these were records that defendants had in their custody and kept in the normal
course of business in connection with Jones’s divorce proceedings and the child support order. The

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conduct for which Jones seeks to hold defendants liable thus relates directly to the exercise of their
governmental function.
None of the statutory exceptions to immunity apply here. The exceptions to political
subdivision immunity are narrow and plainly do not apply. See O.R.C. § 2744.02(B)(1)-(5) (negligent
operation of motor vehicle; negligent failure to repair public roads; physical defect in public
building). With respect to the exceptions to immunity for an employee in his individual capacity, the
only one which potentially applies is for acts or omissions committed “with malicious purpose, in
bad faith, or in a wanton or reckless manner.” O.R.C. § 2744.03(A)(6)(b). The complaint contains
general allegations that the conduct of all named defendants was “extreme,” “malicious,” and
motivated by “evil.” Compl., ¶¶ 15, 30, 35. However, in relation to the Clerk in particular, the
complaint alleges only that he failed to provide Jones with the requested records. There are no
further allegations to support a plausible inference that the Clerk acted with malice or bad faith, or in
a wanton or reckless manner. See Beckett v. Ford, 613 F.Supp.2d 970, 984 (N.D. Ohio 2009) (mere
negligence does not satisfy the exception of § 2744.03(A)(6)(b)).
IV.

Conclusion
Accordingly, the motion of the Lucas County defendants for judgment on the pleadings

(doc. 24) is granted in its entirety. Defendants’ motion for an extension of time to file a reply brief
(doc. 29) is granted.
s/ James L. Graham
JAMES L. GRAHAM
United States District Judge
DATE: April 18, 2013

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