Wadsworth v. City of Columbus Police Department

Filing 10

REPORT AND RECOMMENDATIONS that 7 MOTION to Dismiss filed by City of Columbus Police Department be granted & that all claims against the City of Columbus Police Department be dismissed because that party is not a distinct entity or organization that can be sued. The Court further recommends that Mr. Wadsworth be allowed twenty-eight (28) days to amend his complaint to assert claims against one or more proper defendants. Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 11/8/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Anthony Lamar Wadsworth,
Plaintiff,

:
:

v.

:

Case No. 2:13-cv-485

:
City of Columbus Police
Department,

:

Defendant.

JUDGE MICHAEL H. WATSON
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
Plaintiff, Anthony Lamar Wadsworth, who is proceeding pro
se, brought this civil rights action against one defendant,
which he names as “City of Columbus Police Department.”

That

defendant has moved to dismiss the claim under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted.

For the following reasons, the Court

will recommend that the motion to dismiss be granted and that
Mr. Wadsworth be given 28 days in which to amend his complaint
to name a proper defendant.
I.

Discussion

A motion to dismiss under Fed. R. Civ. P 12(b)(6) tests
whether a 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, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007).

Here, Defendant argues that the complaint fails to

state a claim for relief because Mr. Wadsworth has sued the City
of Columbus Police Department, which has no capacity to be sued.
It is well established that the “City of Columbus Police
Department” lacks the capacity to be sued.

Tysinger v. Police

Dep't of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)
(citing Johari v. City of Columbus Police Dep't, 186 F. Supp. 2d
821, 825 (S.D. Ohio 2002); additional citations omitted).

While

some courts have liberally construed pro se plaintiffs’ claims
against city police departments as being against the city
itself, rather than simply dismissing the claims, others have
dismissed claims against city police departments on these same
grounds.

See, e.g., Mays v. Clancy, 1:12 CV 2596, 2013 WL

444247, *2 (N.D. Ohio Feb. 4, 2013) (construing claims against
Parma Heights Police Department as claims against the City of
Parma Heights); cf. Neterkeht v. Longworth, 1:12-CV-695, 2013 WL
3776579 (S.D. Ohio July 17, 2013) report and recommendation
adopted, 1:12CV695, 2013 WL 4080727 (S.D. Ohio Aug. 13, 2013)
(dismissing pro se plaintiff’s claims against the City of
Cincinnati Police Department).
In light of the recent Court of Appeals decision holding
“that under Rule 15(a) a district court can allow a plaintiff to
amend his complaint even when the complaint is subject to
dismissal under the PLRA,” LaFountain v. Harry, 716 F.3d 944,
951 (6th Cir. 2013), it appears that the best course of action
here would be to dismiss the complaint and allow Mr. Wadsworth
28 days to amend his complaint.

He should determine which

organizations or individuals he wishes to sue and name them as
defendants, and also provide service copies of the amended
complaint plus completed Marshal’s service forms for each
defendant named.
For the foregoing reasons, the Court recommends that
Defendant’s motion to dismiss be granted and that all claims
against the City of Columbus Police Department be dismissed
because that party is not a distinct entity or organization
which can be sued.

The Court further recommends that Mr.

Wadsworth be allowed 28 days to amend his complaint to assert
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his claims against one or more proper defendants. If he does
not, this case should be dismissed in its entirety.
II.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen days of the date of this Report,
file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the
objection(s).

A judge of this Court shall make a de novo

determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.
Upon proper objections, a judge of this Court may accept,
reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/Terence P. Kemp
United States Magistrate Judge

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