Thornton et al v. City of Columbus et al

Filing 29

ORDER granting 12 Motion to Dismiss for Failure to State a Claim, and sua sponte GRANTS Plaintiffs leave to amend their complaint consistent with the foregoing. Signed by Judge Algenon L. Marbley on 3/17/2016. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BONNIE THORNTON &
GUILFORD THORNTON
Plaintiffs,
v.
CITY OF COLUMBUS, et al.
Defendants.

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Case No. 2:15-CV-1337
JUDGE ALGENON L. MARBLEY
Magistrate Judge King

OPINION & ORDER
Before the Court is Defendant City of Columbus's ("Defendant" or "the City") June 11,
2015 Motion to Dismiss for Failure to State a Claim upon Which Relief May Be Granted brought
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 12.) The Motion has been fully
briefed and is ripe for review. For the reasons below, it is GRANTED.
I. BACKGROUND
A. Factual Background
Plaintiffs Bonnie and Guilford Thornton ("Plaintiffs") brought this suit on April 17, 2015.
(Compl., Doc. 2.) Their complaint alleges the following. On April 20, 2013, Guilford Thornton
contacted the Columbus Division of Police to report two young men outside his residence,
located at 1542 Oakwood Avenue in Columbus, Ohio. (Id. ¶17.) Mr. Thornton identified the two
individuals as having committed an assault he witnessed several days earlier. (Id.) Later that
evening, responding Columbus police were dispatched to Mr. Thornton's residence in response
to a 911 call. (Id. ¶¶18, 20.) The caller reported that a man on the porch of 1542 Oakwood
Avenue was threatening several people with a gun. (Id.) After the officers arrived on the scene, a
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witness informed them that the offending man was now inside Mr. Thornton's residence. (Id.)
Based solely on the foregoing, the responding officers entered the residence. (Id. ¶19.) Within
moments, they spotted Mr. Thornton and immediately opened fire on him, striking him in the
hand and buttocks. (Id.) The officers placed Mr. Thornton under arrest and transported him to
Grant Hospital where he underwent surgery in connection with his injuries. (Id.) Mr. Thornton
was then prescribed several pain medications. (Id. ¶20.) He was handcuffed to his bed
throughout his hospital stay. (Id. ¶21.)
That evening, the responding officers conducted a "walk-through" of the scene with
investigators. (Id. ¶22.) The officers gave limited explanation as to where items and individuals
had been physically located, and they declined to provide a statement concerning specifics of
their conduct. (Id.) Also, despite being in physical control of the residence, and despite the fact
that Mr. Thornton had been seriously wounded in the incident, the officers conducted no forensic
investigation of the scene. (Id. ¶23.) Further, investigators did not speak to any of the several
eye-witnesses to the confrontation until several days later. (Id. ¶ 24.) Following the "walkthrough," the responding officers were sequestered from the investigation. (Id. ¶ 26.) Those
officers later retained counsel in connection with the shooting. (Id. ¶ 26.)
On April 22, 2013, Ms. Thornton hired counsel in connection with her husband's arrest.
(Id. ¶27.) Counsel immediately went to visit Mr. Thornton at Grant Hospital but was denied
access. (Id.) Counsel was eventually allowed to speak with Mr. Thornton, but only after
contacting various employees of the Columbus Division of Police, including Detective Patricia
Clark. (Id. at 2, ¶28.) Later that day, Detective Clark conducted a recorded interview of Mr.
Thornton in the absence of counsel. (Id. ¶29.) During the conversation she informed Mr.
Thornton that he was under arrest and that she was aware he had retained counsel. (Id.)

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On April 25, 2015, Mr. Thornton was released from Grant Hospital. (Id. ¶ 30.) Still in
custody, he was transported to Columbus Police Headquarters where he was placed in an
interview room equipped with audio-visual recording equipment. (Id.) Detective Clark
interrogated Mr. Thornton while he was clothed in only a hospital gown and had an IV inserted
into his immobilized arm. (Id. ¶31.) When Mr. Thornton requested an attorney, Detective Clark
threatened him with legal action and incarceration. (Id.)
Mr. Thornton agreed to answer Detective Clark's questions due to fear that he would be
incarcerated in his then-present state. He was then charged with six counts of aggravated
menacing and sent to the Franklin County Jail. (Id. ¶32.) Deputies at the Franklin County Jail
refused to accept Mr. Thornton due to his ill health, and he was eventually returned to the
hospital. (Id. ¶33.) Neither Detective Clark nor any other agent of the Columbus Division of
Police contacted Mr. Thornton's counsel regarding either interrogation. (Id. ¶34.)
Approximately ten days after the shooting, the responding officers submitted
substantially identical written statements through their attorneys. (Id. ¶35.) The statements
provided demonstrably false information concerning their contact with Mr. Thornton and the
circumstances of the shooting. (Id. ¶36.) The City of Columbus refused to dismiss the criminal
charges against Mr. Thornton and a jury trial commenced on the matters on April 2, 2014. (Id.
¶38.) During that trial, the reporting officers provided false testimony. (Id. ¶39.) At least one
other witness also provided false testimony during the trial. (Id. ¶40.)
Mr. Thornton was acquitted of one of the charged offenses. (Id. ¶42.) The jury hung 7-1
in favor of acquittal as to the remainder. (Id.) The City of Columbus dismissed the remaining
charges on May 19, 2014. (Id.)

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B. Procedural History
On April 17, 2015 Plaintiffs brought suit against the City of Columbus, the Columbus
Division of Police and its Police Chief Kim Jacobs, Officers Danny Dupler and Jeffrey Kasza,
Jr., Detective Patricia Clark, and other unknown individuals. (Doc. 2.) The Complaint alleged
numerous violations of 42 U.S.C. § 1983 on the part of Defendants. (Id. at 9-16.) In relevant part,
the Complaint alleged violations of Bonnie and Guilford Thornton's Fourth Amendment rights
and Guilford Thornton's Fifth, Sixth, and Fourteenth Amendment rights.
On May 13, 2015, then-Defendant Columbus Division of Police filed a Motion to
Dismiss for Failure to State a Claim (Doc. 9). On June 10, 2015, then-Defendant Police Chief
Kim Jacobs did the same (Doc. 11). The City of Columbus filed its Motion to Dismiss for
Failure to State a Claim on June 11, 2015 (Doc. 12). A preliminary pretrial conference was held
telephonically on July 15, 2015. (Doc. 16.) At that conference parties agreed that the Motions
filed by the Columbus Division of Police and Police Chief Jacobs should be granted. The
Magistrate Judge granted the motions and dismissed the claims against the Columbus Division of
Police and Police Chief Jacobs on July 15, 2015. (Id. at 3.)
II. STANDARD OF REVIEW
The Court may dismiss a cause of action under Federal Rule of Civil Procedure 12(b)(6)
for “failure to state a claim upon which relief can be granted.” Such a motion “is a test of the
plaintiff’s cause of action as stated in the complaint, not a challenge to the plaintiff’s factual
allegations.” Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). Thus, the Court
must construe the complaint in the light most favorable to the non-moving party. Total Benefits
Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008).
The Court is not required, however, to accept as true mere legal conclusions unsupported by

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factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations need not be
detailed but must “give the defendant fair notice of what the claim is, and the grounds upon
which it rests.” Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v.
Pardus, 551 U.S. 89, 93 (2007)). In short, a complaint’s factual allegations “must be enough to
raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007), and it must contain “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570.
III. ANALYSIS
A. State Law Claims
In response to the City's Motion to Dismiss, Plaintiffs provide no argument concerning
their state law claims. Accordingly, they have abandoned such claims and "waived any
arguments concerning dismissal." Hess v. Huber Heights, No. 3:13-CV-312, 2014 U.S. Dist.
LEXIS 92370, at *17 ("[W]here, as here, plaintiff has not raised arguments in the District Court
by virtue of his failure to oppose defendants' motions to dismiss, the arguments have been
waived") (S.D. Ohio July 8, 2014) (quoting Humphrey v. United States AG Office, 279 F. App'x
328, 331 (6th Cir. 2008) (citing Resnick v. Patton, 258 F. App'x 789, 793, n.1 (6th Cir. 2007)
(finding that arguments are waived in the absence of opposition to a motion to dismiss in the
district court) (citations omitted))).
Defendant argues that it is immune from Plaintiffs' state law claims under Title 27,
Chapter 2744 of the Ohio Revised Code, also known as the Political Subdivision Tort Liability
Act. (Def.'s Mot. to Dismiss, Doc. 12 at 6.) The act requires a three-tiered analysis for
determining municipal tort liability. First, it sets forth "the general rule that 'a political
subdivision is not liable in damages in a civil action for injury . . . caused by any act or omission

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of the political subdivision of an employee of the political subdivision in connection with a
governmental or proprietary function.'" Scott v. Columbus Dep't of Pub. Utils., 192 Ohio App.3d
465, 467 (Ct. App. Ohio 2011) (quoting R.C. 2744.02(A)(1)). Next, it carves out five exceptions
to the general rule. Id. at 468. Finally, if one of those five exceptions apply, the political
subdivision may assert one of the affirmative defenses in R.D. 27044.03 to reinstate immunity.
Id.
Chapter 2744.01(C)(2)(a)&(i) of the Revised Code defines government function as "[t]he
provision or nonprovision of police . . . services" and "[t]he enforcement or nonperformance of
any law" respectively. The behavior Plaintiffs allege relates to the provision and performance of
police services, so presumptive immunity seems to apply. See Wentworth v. Coldwater, No. 1014-18, 2015 WL 1618923, at *6 (Ohio Apr. 13, 2015) ("[T]he provision or nonprovision of
police protection and the enforcement or nonperformance of any law are specifically included in
the definition of government functions) (quotation omitted). The Complaint alleges police
misconduct in the course of law enforcement, so this tier seems satisfied and, given the lack of
argument to the contrary, the Court thus deems it so.
The second tier of the analysis provides five exceptions to the general rule, none of which
apply. The behavior alleged does not involve motor vehicle operation (2744.01(B)(1)); it does
not concern a proprietary function (2744.01(B)(2)); it does not involve public roads
(2744.01(B)(3)); it does not involve injuries on the grounds of a government building or building
serving a government function (2744.01(B)(4)); and there is no other provision in the Ohio
Revised Code expressly imposing municipal civil liability (2744.01(B)(5)). As such, the Court
considers this tier satisfied, obviating the need for further analysis. As to state law claims against

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Defendant, Plaintiffs have abandoned such claims, and Defendant's Motion to Dismiss is
GRANTED and those claims are DISMISSED with prejudice.
B. Federal Law Claims
To establish liability on claims asserted against a municipality under 42 U.S.C. § 1983,
Plaintiffs "must adequately plead (1) that a violation of a federal right took place; (2) that the
defendant acted under color of state law; and (3) that a municipality's policy or custom caused
that violation to happen." Bright v. Gallia Cnty., Ohio, 753 F.3d 639, 660 (6th Cir. 2014) (citing
Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008)).
A plaintiff can make a showing of an illegal policy or custom by demonstrating one of
the following: (1) the existence of an illegal official policy or legislative enactment; (2) that an
official with final decision making authority ratified illegal actions; (3) the existence of a policy
of inadequate training or supervision; or (4) the existence of a custom of tolerance or
acquiescence of federal rights violations. Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)
(citing Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005)).
Plaintiffs contend that they have alleged facts sufficient to show that the City is
responsible for constitutional violations that have injured Plaintiffs through the City's policies,
customs, or practices and by the City's failure to train and supervise its employees adequately.
(Compl., Doc. 2, ¶¶64-65, 67-70, 72-76, 78-80.) Plaintiffs allege that the City has "implicitly or
explicitly adopted and implemented careless and reckless policies, customs, or practices" that
include permitting employees to conduct unreasonable and unlawful searches into private
residences; to use unreasonable, deadly force while conducting routine investigations; to
discharge their firearms without first using non-lethal methods of force; to conduct "woefully
deficient" investigations into police misconduct; and to present perjured testimony without any

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disciplinary action being taken. (Id. ¶68.) Plaintiffs further allege that the City has adopted
policies, customs, or practices that provide "deferential and preferential treatment to officers
involved in misconduct, including sequestration from investigation and sufficient time to collude
with other officers and legal representatives," (Id. ¶74), and that the City pursues false charges
against victims of police misconduct and "allows perjured testimony to go unchallenged where it
serves to incriminate victims of police misconduct." (Id.) According to Plaintiffs, it does so in
order to shield itself and its employees from criminal and civil liability. (Id. ¶75.)
Specifically, Plaintiffs allege that the responding officers' entry into their residence
violated their Fourth Amendment right to be free from unreasonable search as guaranteed by the
United States Constitution, and that the entry and subsequent use of force caused injury to
Plaintiffs, including the permanent disfigurement of Mr. Thornton. (Doc. 2, ¶¶46-48, 53-54, 5657, 59.) Plaintiffs further allege that the City refused to dismiss the criminal charges brought
against Mr. Thornton in order to shield itself, the Columbus Division of Police, and the
responding officers from liability. (Id. ¶38.) Plaintiffs also allege that the failure of the police to
conduct a proper investigation into the events of April 20, 2013 facilitated the responding
officers' ability to present perjured testimony at trial, which substantially impaired Mr.
Thornton's ability to present a complete defense, in violation of his right to due process and a fair
trial as guaranteed by the Fourth, Sixth, and Fourteenth Amendments to the United States
Constitution. (Id. ¶64.)
Defendant argues that Plaintiffs have provided merely a bare recitation of the legal
standards for municipal liability, and that this Court and the Sixth Circuit regularly grant
dismissal under Rule 12(b)(6) motions "when allegations are as sparse and devoid of factual
support as are the facts alleged in Plaintiffs' complaint here." (Def.'s Mot. to Dismiss, Doc. 12 at

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5.) Defendant cites twelve cases in support of its argument, supplying no context for any of
them. Such context would have been helpful because many of the cases Defendant cites do not
support its argument.1
Contrary to what Defendant argues, Plaintiffs have made specific allegations concerning
the City. Plaintiffs allege that the City of Columbus has adopted policies, customs, or practices
that provide "deferential and preferential treatment to officers involved in misconduct, including
sequestration from investigation and sufficient time to collude with other officers and legal
representatives," (Id. ¶74), and that the City pursues false charges against victims of police
misconduct and "allows perjured testimony to go unchallenged where it serves to incriminate

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Burgess v. Fischer, 735 F.3d 462 (6th Cir. 2013), for example, is an order on a motion for summary
judgment whose discussion concerns the lack of factual evidence evinced and not the sufficiency of the
pleadings. The court distinguished Leach v. Shelby County Sheriff, 891 F.2d 1241, 1247-48 (6th
Cir.1989), in which the plaintiffs offered "evidence of several separate instances where the prison failed
to investigate similar claims of prisoner mistreatment." Id. at 478-79.
In Moses v. Prison Health Services, Case No. 11-1507, 2011 U.S. App. LEXIS 26712 (6th Cir.
Dec. 16, 2011), and unlike here, the complaint failed to allege that any injuries the plaintiff suffered
resulted from defendant's execution of the alleged offending policy or custom. 2011 U.S. App. LEXIS
26712, at *6-7.
Howard v. City of Girard, 346 F. App'x 49 (6th Cir. 2009) likewise does not quite fit because
there, unlike here, the complaint failed to specify which right was implicated. 346 F. App'x at 52 ("The
district court noted correctly that while plaintiff argues 'Girard was deliberately indifferent to Howard's
"right to due process of law," he does not "identify which particular right Girard violated."'").
Farmer v. Scioto County Board of County Commissioners, No. 1:14-CV-251, 2014 U.S. Dist.
LEXIS 103104 (S.D. Ohio July 29, 2014) is not helpful because that concerned a medical care claim in
which the complaint's factual allegations directly contradicted its legal argument. 2014 U.S. Dist. LEXIS
103104, at *11-12 ("It strains credibility for Plaintiff to claim" that the following steps, among others, do
not amount to medical treatment: prescribing a course of antibiotics, providing topical antiseptic, and
transporting plaintiff to a medical center for lancing and additional antibiotics).
Beamer v. Board of Crawford Township Trustees, 2010 U.S. Dist. LEXIS 4440 (S.D. Ohio Jan.
20, 2010) is inapt because the complaint there contained "no allegations" that the defendants "took any
action to deprive Plaintiffs of a constitutional right." 2010 U.S. Dist. LEXIS 4440, at *15.
Murray v. City of Columbus, Case No. 2:10-CV-797, 2012 U.S. Dist. LEXIS 137888 (S.D. Ohio
Sept. 26, 2012) is also inapt. There the plaintiff neither "explicitly identif[ied] a City custom or policy"
nor "explain[ed] how execution of that policy . . . violated his constitutional rights." 2012 U.S. Dist.
LEXIS 137888, at *13.
In Brown v. Cuyahoga County, 517 F. App'x 426 (6th Cir. 2013), the plaintiff made only one
factual allegation, namely "that other inmates urged him to be quiet because the correctional officers were
known to have 'blanket parties,' a euphemistic term for the beating of prisoners." 517 F. App'x at 436.
Plaintiffs here allege much more, discussed infra.

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victims of police misconduct." (Id.) According to Plaintiffs, it does so in order to shield itself and
its employees from criminal and civil liability. (Id. ¶75.) These are specific factual allegations,
not the sort of "unadorned, the-defendant-unlawfully-harmed-me accusation" found wanting in
Carmichael. 571 F. App'x at 433 (quoting Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
555)). Moreover, Plaintiffs have alleged that agents of the City have committed violations of
specific rights guaranteed to Plaintiffs by the United States Constitution, namely its Fourth, Fifth,
Sixth, and Fourteenth Amendments. (Doc. 2, ¶¶46-48, 53-54, 56-57, 59, 64.) Finally, Plaintiffs
allege that these violations have harmed them in myriad ways, including financial loss,
psychological distress and permanent disfigurement. (Id. ¶¶48, 51, 57, 59, 62, 70, 76, 80, 83.)
Nonetheless, Plaintiffs have not met their pleading burden.
1. Inadequate Training and Custom of Tolerance
As to claims of inadequate training, Plaintiffs fail to meet their burden due to lack of
explanation. Plaintiffs allege that the City failed to train its employees adequately at ¶¶44, 67, 69,
and 78 of their complaint. At no point do Plaintiffs allege in what way training was lacking.
Because Plaintiffs failed to allege in what way training was lacking, the claims amount to mere
legal conclusions, which the Court is not bound to accept in deciding this motion. Snyder, 990 F.
Supp. 2d at 845 (citing Iqbal, 556 U.S. at 678–79).
Analogous cases support this conclusion. In Pariscoff v. Columbus City Police
Department, No. 2:14-CV-00855, 2015 U.S. Dist. LEXIS 42049 (S.D. Ohio Mar. 31, 2015), the
plaintiff alleged that the City of Columbus Police Department improperly trained officers who
used force against him. 2015 U.S. Dist. LEXIS, at *2-3. The plaintiff in Pariscoff was involved
in an altercation, after which two City of Columbus police officers were dispatched to the scene.
Id., at *1. When the officers arrived, the plaintiff alleged that one of the officers pushed the

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plaintiff into a door and held him eight inches off the porch while manipulating the plaintiff's
head forcefully back and forth. Id., at *2. The court granted the defendant's motion to dismiss,
noting that the plaintiff "fail[ed] to allege virtually any facts to establish that a custom or policy
of the [police department] caused the deprivation of his federally protected rights," and that the
plaintiff made "no specific allegations concerning the [police department's] training regime or
policies. Id., at *6.
In Hess v. Huber Heights, No. 3:13-CV-312, 2014 U.S. Dist. LEXIS 92370 (S.D. Ohio
July 8, 2014), the plaintiff alleged that the City of Columbus "developed and maintained policies
or customs which caused the deprivation of . . . Constitutional rights[,]" including a pattern and
practice of misconduct including "the use of excessive force, illegal arrests and imprisonments,
perjury, giving false statements, false testimony, falsification and other constitutional violations."
2014 U.S. Dist. LEXIS 92370, at *14 (internal quotations omitted). The court granted the
defendant's motion to dismiss because the plaintiff's complaint failed "to sufficiently state failure
to train or failure to supervise claims." Id., at *18 (citing Scrap Yard, LLC v. City of Cleveland,
513 F. App'x 500, 505-06 (6th Cir. 2013) ("affirming dismissal where the complaint failed to
'specify in what way training was lacking, or how the failure to train may have resulted in
damage to plaintiffs'")). Plaintiffs here similarly fail to specify in what way training was lacking.
As such, Plaintiffs' inadequate training claims are dismissed.
Plaintiffs also fail to meet their burden due to their failure to plead causation as to all but
one2 of the remaining federal claims. To refresh, the final step of proving a successful § 1983
claim against a municipality is to prove "(3) that a municipality's policy or custom caused that
violation to happen." Bright, 753 F.3d at 660 (citing Lambert v. Hartman, 517 F.3d 433, 439 (6th
Cir. 2008)). The United States Supreme Court spelled out the rules of causation concerning
2

The remaining claim, malicious prosecution, is discussed in pt. 2.

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municipalities in Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).
Under Monell, "[a] municipality or other local government may be liable . . . if the governmental
body itself 'subjects' a person to a deprivation of rights or 'causes' a person 'to be subjected' to
such deprivation." Connick v. Thompson, 563 U.S. 51, 60 (2011) (citing Monell, 436 U.S. at
692).
Here, the bulk of Plaintiffs' allegations against the City fail to allege a causal link
between the City's customs and the § 1983 violations Plaintiffs allege. See Compl., ¶68, the City
has "adopted and implemented . . . policies, customs, or practices that include" permitting
employees to commit various violations; id. ¶73, the City has "adopted and implemented
policies, customs, or practices that permit constitutional deprivations to United States Citizens";
id. ¶74a, the City has "adopted and implemented policies, customs, or practices that facilitate
constitutional deprivations to United States citizens," including giving police officers involved in
misconduct "deferential and preferential treatment," and "sufficient time to collude with other
officers and legal representatives"; id. ¶74f, the City "allows perjured testimony to go
unchallenged where it serves to incriminate victims of police misconduct; id. ¶79, the City has
"adopted and implemented . . . policies, customs, or practices, which allow employees to present
perjured testimony in criminal cases."
The allegations as they stand do not plead a causal link between the customs and policies
of the City and the violations Plaintiffs allege, merely that the customs and policies allowed for
actors to violate Plaintiffs' constitutional rights. As such, Plaintiffs have not met their pleading
burden. See, e.g., Miller v. Meyer, No. 2:14-CV-101, 2014 U.S. Dist. LEXIS 150871, at *16-17
(S.D. Ohio Oct. 23, 2014) (in a malicious prosecution case, "[a]lthough [the prosecutor's office's]
policy may have given Defendant . . . the opportunity to violate Plaintiffs' Fourth Amendment

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rights, the policy itself did not cause the violation," and finding otherwise "would effectively
impose vicarious liability on Brown County for Defendant's . . . alleged conduct, which Monell
prohibits."). Plaintiffs' claims as to the foregoing alleged violations are thus dismissed.
2. Malicious Prosecution
There is one allegation remaining, namely that the City of Columbus "pursues false
charges against victims of police misconduct." (Compl. ¶74e.) Plaintiffs allege that the City
improperly pursued false charges against Mr. Thornton in violation of the Fifth and Fourteenth
Amendments of the United States Constitution in an effort to shield itself and its employees from
civil liability. (Id. ¶38.) Plaintiff claims the City’s actions injured him financially and
emotionally. (Id. at 12, ¶¶61-62.)
All citizens have the right to be free from "wrongful investigation and prosecution."
Barnes v. Wright, 449 F.3d 709, 716 (6th Cir. 2006) (citing Thacker v. City of Columbus, 328
F.3d 244, 259 (6th Cir. 2003)). And the Sixth Circuit "recognizes a separate constitutionally
cognizable claim of malicious prosecution under the Fourth Amendment." Sykes v. Anderson,
625 F.3d 294, 308 (6th Cir. 2010) (quoting Barnes, 449 F.3d at 715, and Thacker, 328 F.3d at
259). According to the Sixth Circuit:
To state a valid federal civil rights claim for malicious prosecution in violation of
the Fourth Amendment, a plaintiff must allege facts meeting four elements: “(1) a
criminal prosecution was initiated against the plaintiff and the defendant made,
influenced, or participated in the decision to prosecute; (2) there was no probable
cause for the criminal prosecution; (3) as a consequence of the legal proceeding,
the plaintiff suffered a deprivation of liberty apart from the initial seizure; and (4)
the criminal proceeding was resolved in the plaintiff's favor.”
Johnson v. Moseley, 790 F.3d 649, 654 (2015) (citing Robertson v. Lucas, 753 F.3d 606, 616

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(6th Cir. 2014)). As to the second part of the first prong, Plaintiffs need not ultimately prove that
Defendant made the decision to prosecute, rather that it influenced or participated in the decision
to do so. Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007).
As to the second prong, the proper consideration in the context of a malicious prosecution
claim is whether Defendant had probable cause to prosecute. See, e.g., DeSoto (noting that a
claim for malicious prosecution fails "when there was probable cause to prosecute").
As to the third prong, "the plaintiff must show that, 'as a consequence of a legal
proceeding,' the plaintiff suffered a 'deprivation of liberty,' as understood in our Fourth
Amendment jurisprudence, apart from the initial seizure." Sykes, 625 F.3d at 308-09 (quoting
Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007) (citing Gregory v. City of Louisville, 444 F.3d
725, 748–50 (6th Cir. 2006))). That deprivation need not be imprisonment, and the law deems a
person "continued to be seized for Fourth Amendment purposes when their freedom of action
[is] restrained due to the pending criminal proceedings (e.g., restrictions on travel, and
requirements to appear)." Gregory, 444 F.3d at 748 (citing Albright v. Oliver, 510 U.S. 266, 278
(1994) (Ginsburg, J. concurring)).
As to the final prong, Plaintiffs must prove that the case was resolved in Mr. Thornton's
favor. The Complaint mentions that the jury hung 7-1 in favor of acquittal on the others, and that
those charges were eventually dropped. (Id. ¶42.) The Court has not found Sixth Circuit law
proposing that a hung jury or dropped charges constitute the proceeding being resolved in the
plaintiff's favor. The Second Circuit suggests they do not. See Singleton v. City of New York, 632
F.2d 185, 193 (1980) ("Proceedings are 'terminated in favor of the accused' only when their final
disposition is such as to indicate the accused is not guilty." (quoting Restatement (Second) of
Torts § 660, Comments a & b (1977))).

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It is improper for Plaintiffs to seek protection from malicious prosecution under the Fifth
and Fourteenth Amendments of the United States Constitution as a violation of Mr. Thornton's
right to due process. (Compl. at 12.) First, the Court has not found any law supporting Fifth
Amendment protection against malicious prosecution. (Compl. at 12.) Second, malicious
prosecution is not a viable claim as a violation of general due process. This is because "[w]here a
particular Amendment 'provides an explicit textual source of constitutional protection' against a
particular sort of government behavior, 'that Amendment, not the more generalized notion of
"substantive due process," must be the guide for analyzing these claims.'" Albright, 510 U.S.
266, 273 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). As discussed above, the
Fourth Amendment is the proper safeguard against malicious prosecution, and it is under that
Amendment that Plaintiffs must seek refuge.
For the foregoing reasons, Plaintiffs' claim of malicious prosecution is dismissed, and
Defendant's Motion to Dismiss under Rule 12(b)(6) is GRANTED in its entirety.
C. Leave to Amend
Courts have discretion to determine whether to dismiss a complaint or to grant plaintiff
the opportunity to amend. See United States ex rel. Bledsoe v. Cmty. Helath Sys., Inc., 342 F.3d
634, 644 (6th Cir. 2003). In cases "where a more carefully drafted complaint might state a claim,
a plaintiff must be given at least one chance to amend the complaint before the district court
dismisses the action with prejudice." Id. (citing EEOC v. Ohio Edison Co., 7 F.3d 541, 546 (6th
Cir. 1993)).
Accordingly, the Court GRANTS Plaintiffs leave to file an amended complaint asserting
federal law claims consistent with the foregoing Opinion and Order within FOURTEEN DAYS

15

from entry of this Order on the Court's docket. If no amended complaint is filed within fourteen
days, the Court will deem Plaintiffs' entire Complaint dismissed with prejudice.
CONCLUSION
The Court GRANTS Defendant's Motion to Dismiss. (Doc. 12), and sua sponte
GRANTS Plaintiffs leave to amend their complaint consistent with the foregoing.
IT IS SO ORDERED.

s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT COURT
Dated: March 17, 2016

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