Saunders v. Valverde et al

Filing 42

ORDER granting 36 Motion for Judgment on the Pleadings. Signed by Judge James L Graham on 10/11/12. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Justin Saunders,
Case No. 2:12-cv-238
Plaintiff,
v.

Judge Graham

Kenneth Valverde, et al.,

Magistrate Judge Kemp

Defendants.
OPINION AND ORDER
This matter is before the court on a motion for partial judgment on the pleadings pursuant
to Fed. R. Civ. Pro. 12(c) filed by defendants Kenneth Valverde, Curtis Whittaker, James Ailes,
Robert Penrod, John Hartman, Dave Sturman, and Russ Martin. (Doc. 36). Plaintiff Justin Saunders
brings a ten-count complaint alleging, inter alia, that moving defendants and two other individual
defendants arrested, searched, and charged him with crimes in violation of the 1st, 4th, and 14th
Amendments to the United States Constitution and various state laws.
I.

Procedural Background
In a prior order (doc. 26), the Court granted in part and denied in part defendant Harold

Kolsky’s motion to dismiss under Fed. R. Civ. Pro. 12(b)(6). Moving defendants seek to apply the
findings and reasoning of that order to achieve dismissal of some of the plaintiff’s claims against
them.
The Court’s prior order dismissed four counts against defendant Kolsky: Count I for
excessive force; Count VII for deliberate indifference to plaintiff’s medical needs; Count VIII for
violation of plaintiff’s due process rights; and Count IX for municipal liability. The Court denied
the motion with regard to Count V for conspiracy, holding that the plaintiff had stated a claim under
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42 U.S.C. § 1983, but not under § 1985. The Court also denied the motion with regard to Count VI,
holding that the plaintiff had not stated a claim for abuse of process, but had stated a claim for
malicious prosecution.
Defendants Ailes, Penrod, Hartman, Sturman, and Martin move for dismissal of Count I for
excessive force. All seven moving defendants–Ailes, Penrod, Hartman, Sturman, Martin, Valverde,
and Whittaker–seek dismissal of Count VIII for due process violations, Count V to the extent it rests
upon a violation of 42 U.S.C. § 1985, and Count VI to the extent that it seeks to state a claim for
abuse of process.
II.

Factual Background
This litigation stems from events surrounding plaintiff’s arrest after midnight on March 18,

2010. (Complaint, Doc. 2 ¶ 18.) Saunders and several friends and relatives were “enjoying a
libation” at Clancy’s Pub in Delaware, Ohio, when plaintiff noticed “several police officers [who]
seemed to be rousting his younger brother, William.” Id. ¶¶ 18-20. Plaintiff approached the officers
and “questioned the manner and misconduct which the police were using in order to harass his
brother . . . .” Id. ¶ 21. In response to his query, plaintiff alleges that someone from the group of
police officers grabbed him from behind and forced his head through a plate glass window in the
front of the pub. Id. ¶ 25. Defendant Curtis Whittaker allegedly bound the plaintiff and pushed him
to the ground, lacerating his face, arms, torso, and upper body. Id. ¶¶ 25-27. Though plaintiff
specifies that defendant Whittaker bound his arms and pushed him to the ground, he alleges more
generally that “[d]efendant Whittaker and/or Defendant Valverde, and/or other Defendants” initially
grabbed him and pushed his head through the window. Id. ¶¶ 24, 25. Plaintiff was arrested and
placed in a jail cell at the Delaware Police Department. Id. ¶ 36. He claims that he requested and

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was denied medical attention for his lacerations. Id.
Plaintiff brings this complaint against ten defendants–the seven movants and three other
defendants. The moving defendants are police officers for the City of Delaware, Ohio, and the Chief
of Police. (Doc. 2 at 10-11.)
II.

Legal Standard
Federal Rule of Civil Procedure 8(a) requires that a pleading contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When
considering a motion under Rule 12(b)(6) to dismiss a pleading for failure to state a claim, a court
must determine whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court should construe the complaint
in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the
complaint as true. Iqbal, 556 U.S. at 679; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Twombly,
550 U.S. at 555-56.
Despite this liberal pleading standard, the “tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678; see also Twombly, 550 U.S. at 555, 557 (“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action will not do,” nor will “naked assertion[s]” devoid of
“further factual enhancements”); Papasan v. Allain, 478 U.S. 265, 286 (1986) (a court is “not bound
to accept as true a legal conclusion couched as a factual allegation”). The plaintiff must provide the
grounds of his entitlement to relief “rather than a blanket assertion of entitlement to relief.”
Twombly, 550 U.S. at 556 n.3. Thus, “a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679.
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When the complaint does contain 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 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.

Analysis

Excessive Force (Count I)
The Court’s prior order dismissed Count I against defendant Kolsky because the complaint
did not specifically allege that Kolsky had taken any action that would support a claim for excessive
force. Instead, the complaint alleged “generally that ‘other defendants’ took an action . . . .” (Doc.
26 at 4.) The Court held that this general allegation was “insufficient to allege that any one of eight
possible defendants took the action.” (Doc. 26 at 4.) The Court dismissed Count I against defendant
Kolsky because the complaint had not “affirmatively plead [his] personal involvement . . . in the
allegedly unconstitutional action.” Gregg v. Ohio Dep’t of Youth Servs., 661 F.Supp.2d 842, 858
(S.D. Ohio 2009).
As movants argue, the same logic applies to defendants Ailes, Penrod, Hartman, Sturman,
and Martin. As with defendant Kolsky, the complaint includes no specific, non-conclusory
allegations that could support an excessive force claim against defendants Ailes, Penrod, Hartman,
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Sturman, or Martin.
Due Process (Count VIII)
The Court’s prior order dismissed Count VIII against defendant Kolsky which alleged a due
process violation. The Court held that because plaintiff alleged that he had been tried in a court of
law, he had not stated a due process claim arising from the charges for which he was tried: “A trial
(at which plaintiff was acquitted of most charges) is the process to which an individual charged with
a crime is entitled.” (Doc. 26 at 7.) The same logic applies to Count VIII as applied to each of the
seven moving defendants.
Conspiracy (Count V)
In the prior order, the Court denied defendant Kolsky’s motion to dismiss Count V for
conspiracy, but held that the complaint did not state a claim for conspiracy under 42 U.S.C. § 1985
because “[t]he complaint fails to allege that the plaintiff was a member of any class that motivated
the defendants to deprive him of his rights,” as required by Section 1985. (Doc. 26 at 5-6.) The
same logic applies to all moving defendants. As in the previous order, this holding does not require
dismissal of Count V. In addition to Section 1985, Count V asserts a conspiracy under 42 U.S.C.
§ 1983, which requires no class-based animus. (See doc. 26 at 5-6.)
Abuse of Process (Count VI)
Similarly, the Court’s prior order denied defendant Kolsky’s motion to dismiss Count VI,
holding that complaint had stated a claim for malicious prosecution. (Doc. 26 at 7.) The court
concluded that the complaint had not stated a claim for abuse of process because the “plaintiff has
not alleged that the legal proceeding was set in motion with probable cause–just the opposite.” (Doc.
26 at 7.) The same logic applies to the claims brought against moving defendants.
Plaintiff’s Arguments Regarding the Joint Motion
Though his legal argument is difficult to follow, plaintiff seems to object to seven defendants
moving jointly for partial dismissal, or as he puts it, “in bulk.” (Doc. 41 at 6.) Plaintiff’s objection
to the joint motion is that “at no point do the Defendants differentiate any facts that may be
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attributable and personal to any individual Defendant.” (Doc. 41 at 5.) This argument is premised
on a faulty understanding of the posture of the case. The Court will construe the complaint in the
light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint
as true. Iqbal, 556 U.S. at 679; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Twombly, 550 U .S.
at 555-56. But the burden of producing such factual allegations lies solely with the plaintiff. Here,
the plaintiff includes identical, general, and threadbare allegations for many defendants. Where the
plaintiff has declined to differentiate between numerous defendants, the defendants are under no
obligation to do so.
IV.

Conclusion.
Based on the foregoing reasons, the motion for partial judgment on the pleadings brought by

defendants Valverde, Whittaker, Ailes, Penrod, Hartman, Sturman, and Martin is GRANTED.
IT IS SO ORDERED.

S/ James L Graham
James L. Graham
UNITED STATES DISTRICT JUDGE
Date: October 11, 2012

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