Bostic Senior v. Davis et al

Filing 38

OPINION AND ORDER granting 25 Motion to Dismiss for Lack of Jurisdiction. Defendant Davis is dismissed as a party to this case. Signed by Magistrate Judge Terence P. Kemp on 5/8/2017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.) Modified text on 5/8/2017 (agm).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Teddy Glen Bostic Senior,

:

Plaintiff,

:

Case No. 2:15-cv-3029

:

Magistrate Judge Kemp

v.

Jeanette Arlene Davis, et al., :
Defendants.

:

OPINION AND ORDER
Plaintiff Teddy Glen Bostic Senior filed this action against
Jeanette Arlene Davis, a private citizen, and against the
Columbus Police Department, Columbus Police Chief Kimberly
Jacobs, and Columbus Police Officer Ernest Rice (“Defendants”).
This matter is now before the Court on Ms. Davis’ motion to
dismiss for lack of subject matter jurisdiction. (Doc. 25).

For

the following reasons, the motion will be granted.
I.

Background

Mr. Bostic is proceeding pro se and in forma pauperis, and
has filed an original complaint followed by two amended
complaints (Docs. 2, 4, and 21). The Magistrate Judge recommended
that original complaint be dismissed on initial screening under
28 U.S.C. §1915(e)(2) for failure to state a claim, with leave to
amend the complaint to correct the deficiencies. (Doc. 3). Mr.
Bostic filed an amended complaint on March 14, 2016 (Doc. 4), so
the Report and Recommendation (Doc. 3) was deemed to be moot.
(Doc. 5). The first amended complaint alleged that Ms. Davis, Mr.
Bostic’s ex-wife, conspired against him with the City of Columbus
Police Department. This conspiracy, according to the complaint,
involved Ms. Davis’ being assisted by police officers in a
harassment campaign that Mr. Bostic describes as a “relentless
daily quest without mercy to get the plaintiff to commit

suicide.”

He accuses both Chief Jacobs and Officer Rice of

conspiring with Ms. Davis in this quest, which included a
warrantless entry into his home in August of 2011 in which one or
more of the defendants “went through his papers” and attacked his
pet dogs.

The complaint also alleges that in November of 2015,

an unknown assailant attacked Mr. Bostic in the presence of a
Columbus police officer and Ms. Davis in an effort to prevent him
from filing this case.
On April 28, 2016, the Magistrate Judge issued a Report and
Recommendation (Doc. 6) concluding that the alleged incident of a
warrantless entry into his home in August 2011 was time-barred,
noting that more than two years had passed since Mr. Bostic knew
or should have known of that injury.

See Sevier v. Turner, 742

F.2d 262, 272-73 (6th Cir. 1984). The Court further concluded
that claims arising out of the alleged assault in November, 2015,
were not time barred, and for the purposes of initial analysis of
the complaint it could be inferred that the November, 2015
incident was a part of the alleged conspiracy dating back to
2005.

The Magistrate Judge recommended that all of the claims in

the amended complaint arising out of the alleged incident in
August, 2011 be dismissed as time-barred, but that the Court
order service of process to be made with respect to the November,
2015 incident. That Report and Recommendation was adopted by the
District Judge on June 17, 2016. (Doc. 9).
Subsequently, the defendants filed a motion to strike
certain irrelevant language from the first amended complaint
(Doc. 16), which the Court granted. It also directed Mr. Bostic
to file a second amended complaint. (Doc. 20).

On March 8, 2017,

Mr. Bostic filed a second amended complaint, which alleged
essentially the same broad facts as the prior complaint with
respect to the purported campaign of harassment against him by
Ms. Davis, Chief Jacobs, and Officer Rice. The facts alleged
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regarding the physical attack on him can be summarized as
follows.
At approximately 6:40 a.m. on Monday, November 16, 2015, Mr.
Bostic was pulling into the parking lot of his apartment complex
when a vehicle without its headlights on nearly hit his car. Mr.
Bostic yelled to the female driver of that car that she should
turn her headlights on and then proceeded to park his car.

The

driver whom he had shouted at then backed up where Mr. Bostic was
parking his car and engaged in a verbal altercation with him,
asking what “his problem” was. During this altercation, Mr.
Bostic was approached by a large man who hit him in his throat
and Adam’s apple with the heel of his hand.

He asserts that the

force of the blow caused him to temporarily lose his vision and
fall back against his car. The man who had hit Mr. Bostic then
told the female who he had argued with that “it was taken care
of.” It was at that time Mr. Bostic recognized the passenger in
the car with the female driver to be Ms. Davis. Mr. Bostic then
called the Columbus Police Department and reported the incident,
but the police officers left without investigation.

He called

the police a second time that morning and an officer arrived,
discussed the incident with Mr. Bostic, and then left. Mr. Bostic
asserts that he later found out that the woman driving the
vehicle that morning and the man who hit him were both Columbus
police officers.
Mr. Bostic raises new allegations in the most recent amended
complaint.

He asserts that his grandson was killed in a

motorcycle accident in California in July of 2016 and his son was
killed in an attack while attempting to buy marijuana on a
bicycle in Columbus in January of 2017.

Mr. Bostic states that

these “were not accidents” but were “premeditated murders.” He
claims that, with respect to the death of his son in Columbus,
the men involved in his son’s death were Columbus police officers
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in “civilians [sic] clothes,” one being Officer Rice. Mr. Bostic
states that there were also two F.B.I. agents “who knew this was
going to happen but did not [do] a thing to prevent it....”. He
does not believe that Ms. Davis was directly involved in the
conspiracy to murder his family members, but asserts that she was
aware of it. Mr. Bostic concludes his complaint by stating that
“[i]t is very obvious that there was a conspiracy against
plaintiff. It is also very obvious that the F.B.I., the Columbus
Police Department along with other law enforcement agencies made
a total mess and caused many, many more problems then [sic] they
solved. They also used private citizens such as Davis....”

Mr.

Bostic seeks one million dollars in damages.
Defendants Chief Jacobs and Officer Rice filed an answer to
the second amended complaint on March 10, 2017. (Doc. 22). Now
under consideration is Ms. Davis’s motion to dismiss Mr. Bostic’s
complaint based on the failure to include any allegations
sufficient to establish federal jurisdiction. Ms. Davis correctly
states that because there is no diversity of citizenship between
the parties, federal law must supply the jurisdictional basis for
his claims against her. See 28 U.S.C. §1331.

She argues that Mr.

Bostic’s pleading mainly relies on a claim of simple assault,
which does not constitute a federal question, and contains
“ramblings about being deprived of his ‘civil rights...’” She
asserts that Mr. Bostic’s claims “are nothing more than
unsupported, summary assertions” and that his claims against her
should be dismissed for lack of jurisdiction.
Subsequent to Ms. Davis’ motion to dismiss, Mr. Bostic filed
a “motion for court to continue with plaintiff’s case because
plaintiff has met court requirements,” which the Court will
construe as a response to the motion to dismiss. Mr. Bostic
argues that he is not alleging only a simple assault, but that he
was threatened to “drop his complaint or else” during the
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incident on November 16, 2015, although this lawsuit was not
filed until November 27, 2015. He revisits his allegation about
the death of his son, alleging for the first time that his son
was beaten and cut on his leg by “two thugs” and that somehow the
Columbus police were involved or had knowledge of this.

Mr.

Bostic asserts that his “civil rights have been violated” and
that the Court should not dismiss his case for lack of
jurisdiction.
II.

Legal Standard

Motions to dismiss under Rule 12(b)(1) “are categorized as
either a facial attack or a factual attack.” Bell v. United
States, 4 F. Supp. 3d 908, 913 (S.D. Ohio 2014) (quoting
McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012)). A
facial attack on subject-matter jurisdiction is a “challenge to
the sufficiency of the pleading itself,” and therefore is
resolved under the familiar Rule 12(b)(6) standard. Id. In the
instant case, where jurisdiction is challenged under a Rule
12(b)(1) motion, and discovery has not yet commenced, the Court
construes the motion as facially challenging subject-matter
jurisdiction. See Kal Kan Foods, Inc. v. Iams Co., 197 F. Supp.
2d 1061, 1066–67 (S.D. Ohio 2002). A pro se litigants pleadings
are held to a less stringent standard than pleadings prepared by
attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972).
Nonetheless, courts are not to “abrogate basic pleading
essentials in pro se suits.” See Wells v. Brown, 891 F.2d 591,
594 (6th Cir. 1989). Courts are not obligated to entertain a pro
se plaintiff's claim that “defies comprehension” or allegations
that largely amount to “incoherent ramblings.” Roper v. Ford
Motor Co., 2010 WL 2670827, at *4 (S.D. Ohio Apr. 6, 2010),
report and recommendation adopted, 2010 WL 2670697 (S.D. Ohio
July 1, 2010) (internal citations omitted).

It is with these

standards in mind that the instant motion will be decided.
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III.

Discussion

The Court construes Mr. Bostic’s complaint as alleging that
his constitutional rights were violated by Ms. Davis. 42 U.S.C.
§1983 provides a private cause of action for constitutional
violations.

To establish a prima facie claim under §1983, a

plaintiff must satisfy two elements: (1) that defendants acted
under color of state law, and (2) that defendants deprived
plaintiff of a federal statutory or constitutional right.

See,

e.g., Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978); Searcy v.
City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994); United of Omaha
Life Ins. Co. v. Solomon, 960 F.2d 31, 33 (6th Cir. 1992) (per
curiam). Conclusory allegations are insufficient to state a claim
under §1983.

Rhodes v. Chapman, 452 U.S. 337 (1981).

First, the Court must determine whether Mr. Bostic has made
a plausible allegation that Ms. Davis, as a private citizen, was
acting under color of state law. The constitutional protections
under which Mr. Bostic bases his §1983 complaint are directed at
state actors. Thus, they can be violated only by conduct that may
be fairly characterized as action taken under the authority of
the state. Griffin v. Maryland, 378 U.S. 130, 135 (1964). Ms.
Davis is a private citizen, not employed or otherwise given
authority to perform certain duties by the state.

Normally a

private citizen is not considered to be acting under color of
state law, although there are narrow exceptions under which the
“conduct allegedly causing the deprivation of a federal right may
be fairly attributable to the State.” Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 937 (1982). For example, a private citizen
may be deemed to be acting under color of state law if that
citizen has conspired with state officials to deprive someone of
his or her constitutional rights. Adickes v. S.H. Kress & Co.,
398 U.S. 144 (1970).

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The Sixth Circuit Court of Appeals examined this type of
§1983 claim against a private citizen in

American Postal Workers

Union, Local 96 v. City of Memphis, 361 F.3d 898, 900-01 (6th
Cir. 2004). In that case, a complaint was filed alleging that
private businesses conspired with local police to deprive
striking workers of their constitutional rights by intimidating,
detaining, and threatening the workers. The court held that
because the private and state defendants had a shared a
conspiratorial plan with the objective to deprive the plaintiffs
of their constitutional rights and had committed overt acts in
order to do so, the union workers had successfully pled a §1983
conspiracy. Id. at 905–06.

Stated another way, “a private party

acts under color of state law within the meaning of §1983 only
when there is a usurpation or corruption of official power by the
private litigant or a surrender of judicial power to the private
litigant in such a way that the independence of the enforcing
officer has been compromised to a significant degree.” Lugar,457
U.S. at 926. Conversely, where a private party did not share a
“conspirational objective” with the state actors, the private
party cannot be considered to be a state actor. Revis v. Meldrum,
489 F.3d 273, 291 (6th Cir. 2007); see also Adickes, 398 U.S. at
152 (a private person deemed to be acting under color of law must
be “a willful participant in joint activity with the State or its
agents.”).
In this case, Mr. Bostic alleges Ms. Davis worked in
collusion with Columbus police officers to deprive him of his
rights. It is insufficient, without more, to generally allege
that the defendants were engaged in a conspiracy. A plaintiff
must provide a clear statement of specific factual details to
support the allegation. Fed.R.Civ.P. 8(a). Courts in the Sixth
Circuit have consistently held that “conspiracy claims must be
pled with some degree of specificity and that vague and
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conclusory allegations unsupported by material facts will not be
sufficient to state such a claim under §1983.” Gutierrez v.
Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987); see also Webb v.
U.S., 789 F.3d 647 (6th Cir. 2015); Snyder v. U.S., 990 F.Supp.2d
818 (S.D. Ohio 2014). Facts which should be pleaded to
successfully allege a conspiracy include specific actions and
statements of the members of the conspiracy (and the timing of
those actions and statements) which would demonstrate that the
conspirators were acting in concert to achieve a common goal.
Failure to state facts in a complaint establishing that the
alleged conspirators had a meeting of the minds and committed
overt actions in furtherance of the conspiracy requires dismissal
of the complaint. Woodrum v. Woodward County, 866 F.2d 1121, 1126
(9 th Cir. 1989); Gometz v. Culwell, 850 F.2d 461, 464 (8th Cir.
1988); McGillicuddy v. Clements, 746 F.2d 76, 77 (1st Cir. 1984).
Accepting Mr. Bostic’s allegations against Ms. Davis as true
and construing them in the light most favorable to him, he fails
to allege that Ms. Davis was acting under color of law or
conspiring with Columbus police officers.

Mr. Bostic makes

general assertions that Ms. Davis was involved with Columbus
police officers in a long-term conspiracy against him or part of
a vendetta to cause him to commit suicide. The only specifically
articulated factual allegation against Ms. Davis is that she was
a passenger in the car driven by a woman with whom he had an
altercation, resulting in Mr. Bostic’s being punched by an
unknown man. Mr. Bostic does not provide any specific factual
allegations that Ms. Davis made statements or took actions
colluding with the law enforcement defendants to cause him harm.
Neither the driver of the car nor the assailant involved in the
November 2015 incident identified themselves as police officers,
and they were not in uniform or in a police vehicle.

Accepting

all these allegations as true, there is nothing to suggest that
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Ms. Davis was involved in conspiring with, usurping, or
corrupting any police officers so that their independence was
compromised in some way.
Simply put, the amended complaint fails to plead the
necessary elements of a §1983 claim against Ms. Davis, a private
individual. Consequently, the only federal claim asserted against
her must be dismissed. Even if the complaint pleaded a plausible
simple assault or other non-federal claim against Ms. Davis,
there is no diversity of citizenship between her and Mr. Bostic,
and no other apparent basis on which the Court could exercise
jurisdiction over such claims. These claims must be dismissed for
lack of jurisdiction.
IV.

Conclusion

For all of the reasons stated above, Defendant Davis’ motion
to dismiss is granted. Mr. Bostic’s §1983 claim against Ms. Davis
is dismissed for failure to state a claim upon which relief can
be granted. Any state law claims against Ms. Davis are dismissed
without prejudice for lack of jurisdiction, and she is dismissed
as a party to this case.

/s/ Terence P. Kemp
United States Magistrate Judge

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