Viola v. Kasaris

Filing 17

REPORT AND RECOMMENDATION - the Court recommends that 6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM be granted, that 2 MOTION for Temporary Restraining Order be denied, and that this case be dismissed for failure to state a claim pursuan t to Fed.R.Civ.P. 12(b)(6). Objections to R&R due by 3/10/2017. Signed by Magistrate Judge Terence P. Kemp on 2/24/20017. (agm)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Anthony L. Viola,

:

Plaintiff,

:

v.

:

Case No. 2:16-cv-1036

:

JUDGE GEORGE C. SMITH
Magistrate Judge Kemp

Daniel J. Kasaris,
Defendant.

:
REPORT AND RECOMMENDATION

Anthony L. Viola, an inmate at the McKean Federal
Correctional Institution located in Bradford, Pennsylvania, has
filed this action against Daniel J. Kasaris, who is currently
employed as an assistant Ohio Attorney General.

Mr. Viola has

moved for injunctive relief; Mr. Kasaris opposes that motion and
has moved to dismiss.

For the following reasons, the Court

recommends that the motion to dismiss be granted, the motion for
injunctive relief be denied, and the case be dismissed under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which
relief can be granted.
I.

The Complaint

In order to resolve the pending motions, it is necessary to
read the complaint closely, and to read its statements in
conjunction with the exhibits which are attached.

The Court will

therefore set out its allegations in detail. It is important to
keep in mind that the facts alleged in the complaint are just
that - allegations - although the well-pleaded ones must be
assumed to be true for purposes of ruling on the motion to
dismiss.

See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);

Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009).

Mr. Kasaris was formerly a prosecuting attorney in Cuyahoga
County.

Mr. Viola is a former defendant in a case brought by the

State of Ohio against him in which mortgage fraud was alleged.
Mr. Kasaris prosecuted that case, which ended in an acquittal.
Mr. Viola was convicted on similar charges in federal court,
however, which explains why he is currently an inmate at a
federal correctional institution.
The complaint alleges that, during the course of these
prosecutions, Mr. Kasaris engaged in some questionable tactics.
Whether he did or did not is not relevant to the issues before
this Court.

Mr. Viola claims that he was wrongfully convicted in

the federal case.

His friends and supporters have created a

website, www.FreeTonyViola.com, the purpose of which (in Mr.
Viola’s words, see Doc. 1, ¶14) is “to highlight the obvious
injustice of a citizen who proved his innocence at trial
remaining imprisoned.”

One of the topics on the website is the

misconduct charges leveled against Mr. Kasaris, as well as
allegations about other improprieties, both personal and
professional, allegedly engaged in by Mr. Kasaris (who, in
addition to being an assistant attorney general, is on the North
Royalton, Ohio, City Council).
Mr. Viola alleges that in September and October, 2016, Mr.
Kasaris sent what the complaint characterizes as “threatening
letters” to both Mr. Viola and to others assisting with the
website.

The letter to Mr. Viola is attached to the complaint as

Exhibit F.

It reads in full as follows (with all errors as in

the original):
Anthony L. Viola
# 32238 160
McKean Federal Corrections Institution
P.O. Box 8000
Bradford, PA 16701

-2-

RE: Ohio Revised Code Section 2921.03(a)
September 26, 2016
I am writing to inform you that Ohio law provides
that, “No person, knowingly using a materially false or
fraudulent writing with malicious purpose, in bad
faith, or in a wanton or reckless manner, shall attempt
to influence, intimidate, or hinder a public servant in
the discharge of the person’s duty.” Please see Ohio
Revised code 2921.03(a). For approximately a year you
or others on your behalf have carried on a campaign
publishing false or materially false writings in a
reckless manner attempting to intimidate me in the
performance of my duties as a prosecutor and as a city
councilman in the city of North Royalton by using
absolutely false writings some of which have already
been adjudicated to have been false, in a reckless
manner. In addition you and/or others acting on your
behalf and possibly with your consent have attempted to
interfere business relationships which I have and
employment.
Please cease the above describe conduct and please
remove or cause to be removed any reference to me, and
my family, including my wife and daughters from the
website known as www.freetonyvioa.com, or any social
media. Please remove or cause to be removed the
pictures of myself and my daughters from
www.freetonyviola.com or any social media to have
direct or indirect control over. Failure to do so may
result in the initiation of a complaint against you for
violation of the above statute which is a felony of the
third degree per occurrence, with the appropriate law
enforcement agency.
Sincerely,
[signature]
Dan Kasaris
The letter is not on official stationary and, as can be seen from
the exhibit, Mr. Kasaris did not sign it in any particular
capacity.
The complaint specifically avers that all of the statements
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on www.FreeTonyViola.com are truthful and accurate.

However, Mr.

Viola claims that the “web team” (which presumably includes
himself) “is afraid of being prosecuted for assisting with this
initiative.”

Id. at ¶22.

As a result, he asserts that he has

been deprived, and will continue to be deprived, of his First
Amendment rights.

As relief, he seeks a declaration that Mr.

Kasaris’s actions are unconstitutional, and an order enjoining
Mr. Kasaris from further threatening to prosecute either Mr.
Viola or others who have assisted with the website.
Mr. Kasaris’s motion to dismiss raises three distinct
arguments - lack of subject matter jurisdiction, insufficiency of
service of process, and failure to state a claim upon which
relief can be granted.

He has since accepted service, so only

two potential grounds for dismissal remain.

Because the subject

matter jurisdiction argument raises the question of Article III
standing, the Court must address that issue first before
considering the merits of his claim.

See Steel Company v.

Citizens for a Better Environment, 523 U.S. 83 (1998).
II.

Standing

Article III, Section 2 of the United States Constitution
governs the scope of the “judicial Power” of the United States.
It says that this power extends to “all Cases, in Law and Equity”
which fall into certain defined categories - cases arising under
the Constitution itself being one of those categories - and to
certain kinds of “Controversies” as well.

If a particular matter

brought before a federal court is not one of those described in
Article III, Section 2, the court has no jurisdiction literally, no “judicial Power” - to decide the matter.

And if

the matter is neither a “case” nor a “controversy,” as those
terms which appear in Article III have come to be defined, the
Court similarly lacks the power to make a merits determination.
In order for a dispute to qualify as a “case or controversy,”
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at a

minimum, the plaintiff must have standing to sue.

Standing

is conferred by the existence of a real-world injury which places
the plaintiff sufficiently at odds with the defendant or
defendants so as to make the matter in dispute a “case or
controversy.”

Not all types of injuries are sufficient, but

without some type of injury, the plaintiff lacks standing, and
the Court lacks Article III jurisdiction.
This Court has explained the concept of Article III
jurisdiction this way:
It is true that plaintiffs “must possess both
constitutional and statutory standing in order for a
federal court to have jurisdiction.” Loren v. Blue
Cross & Blue Shield of Mich., 505 F.3d 598, 606 (6th
Cir. 2007) (citing Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d
501 (1986)). “As the party invoking federal
jurisdiction, Plaintiffs bear the burden of
establishing standing.” Loren, 505 F.3d at 607 (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112
S.Ct. 2130, 119 L.Ed.2d 351 (1992)). In order to
establish Article III standing, a plaintiff “must
allege: (1) ‘injury in fact,’ (2) ‘a causal connection
between the injury and the conduct complained of,’ and
(3) redressability.” Taylor v. KeyCorp, 680 F.3d 609,
612 (6th Cir.2012) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992) (internal quotation marks and
citations omitted)).
Jones v. Allen, 2014 WL 347035, *3 (S.D. Ohio Jan. 30, 2014),
adopted and affirmed 2014 WL 1235184 (S.D. Ohio Mar. 25, 2014).
Each element of Article III standing must be separately and
plausibly pleaded; an injury in fact, for example, will not
support standing if the injury was not caused by the defendant’s
conduct, or if the injury would persist even if the court were to
rule in the plaintiff’s favor.

These elements are designed to

insure both that the parties have a sufficient stake in the
outcome of the case to make them appropriate and motivated
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adversaries, and to insure that the Court’s resolution of the
case will have a real-world impact on the parties’ legal
relationship.

Without that, the Court would essentially be

rendering advice on a theoretical or collusively-presented legal
issue rather than deciding an actual case, and the Constitution
does not extend the judicial power that far.
In his motion to dismiss, Mr. Kasaris focuses on the first
of the three Article III standing elements: injury in fact.

He

argues that Mr. Viola has not pleaded an injury to his First
Amendment rights which is “‘likely to occur imminently.’”

See

Doc. 6, at 6, quoting Parsons v. United States Dept. of Justice,
801 F.3d 701, 710 (6th Cir. 2015).

Mr. Kasaris asserts that when

the injury at issue is the “chilling” of a person’s right to
speak freely, the person must allege something more than simply
his or her subjective feeling that an impediment to free speech
has been created.

Thus, for example, if a person feels deterred

from speaking out by the possibility that he or she will face
criminal charges, unless there is some objective basis for
believing that criminal charges might be filed, the person has
not suffered an injury sufficient to confer Article III standing.
Parsons (a decision written by Chief Judge Edmund A. Sargus,
Jr., of this Court, sitting by designation on the Court of
Appeals) involved this scenario.
band “Insane Clown Posse.”

The plaintiffs were fans of the

Followers of the band, called

“Juggalos,” were identified in a report issued by a federal
agency as a “hybrid gang” based on information that some
followers of the band had committed crimes.

After that

identification, some band followers were stopped or investigated
by local law enforcement agents based on their display of the
band’s logo, which identified them as Juggalos.

They argued that

these stops or investigations constituted an Article III injury.
Although the district court dismissed their claims on standing
-6-

grounds, the Court of Appeals reversed, finding that the injury
which the report had inflicted on the Juggalos’ reputation,
leading to real-world consequences, was sufficient to confer
standing.

The court did, however, in what amounts to dictum,

state that because the governmental report at issue did not
directly regulate the free expression rights of the Juggalos,
they could not use the subjective “chill” it placed on their
exercise of those rights as an Article III injury.

To that

extent, Parsons provides some support for Mr. Kasaris’s position.
This case differs from Parsons, however, because the action
about which Mr. Viola complains is not having his name placed on
some governmental list, or the mere existence of a statute which
might be interpreted to criminalize his conduct, but a direct
threat made against him.

The substance of that threat (i.e. Mr.

Kasaris’s letter), fairly read, is that Mr. Viola had already
committed multiple felonies by expressing himself through the
statements found on his website, and if he did not reverse
course, he could be prosecuted.

Since that is the scenario

involved here, the Court must engage in a more intricate analysis
needed to answer the question of when a threat of prosecution is
sufficiently real that a person may sue to enjoin it - which is
sometimes considered to be a standing issue, and sometimes an
issue of ripeness (that is, there would be a sufficient injury if
the person were actually to be prosecuted for speaking, but if
the prosecution has not yet taken place, the case might not be
ripe (or ready) for adjudication).
The decision in Cooksey v. Futrell, 721 F.3d 226 (4th Cir.
2013) is instructive here.

In that case, the plaintiff operated

a website which recounted his experience with diabetes and weight
loss, and on which he advocated for a specific diet to combat
these problems.

The website featured an advice column, an area

where the plaintiff responded to posts by viewers, and an offer
-7-

to provide “Diabetes Support Life Coaching” for a fee.
Plaintiff’s activities were brought to the attention of the North
Carolina Board of Dietetics and Nutrition Practices, which in
turn led the executive director of that board to call him and
tell him that he was being investigated for possible criminal
activity (acting as a dietician without a proper license) and
directing him to take down portions of his website.

The Board

then advised him in writing of “areas of concern” with his site,
leading him to take the entire site down and then to sue for
infringement of his First Amendment rights.

As here, the key

issue was whether the plaintiff had suffered an Article III
injury and whether the case was ripe for adjudication despite the
fact that no criminal charges had ever been filed.
The Court of Appeals first analyzed the standing question.
It noted that in cases like Secretary of State of Md. v. Joseph
H. Munson Co., Inc., 467 U.S. 947, 956 (1984) the Supreme Court
had indicated that, due to the importance of First Amendment
rights, standing was more likely to be found in such cases even
when the only effect of the statute, regulation, or other
governmental action under review was to chill the exercise of
such rights.

The Cooksey court recognized, as did Parsons, that

this type of injury cannot be based purely on a subjective
feeling unaccompanied by any objective basis for it, but it
phrased the inquiry in terms of whether a “‘person of ordinary
firmness’” would have been deterred from exercising his rights.
Cooksey, 721 F.3d at 236, quoting Benham v. City of Charlotte,
635 F.3d 129, 135 (4th Cir. 2011).

Because the chilling effect

in Cooksey did not come simply from the presence on the books of
a statute regulating the practice of dietetics, but a direct
statement made by the agency charged with enforcing that statute
to the effect that the speech expressed on the website was
problematic and that the Board would continue to monitor it, the
-8-

court concluded that the plaintiff had met that test.

The court

also emphasized that even though plaintiff had actually stopped
the purportedly unlawful speech, he did not have to desist
completely in order to prove that his right of expression had
been chilled.

Id.

Finally, the court pointed out that, although

the defendant had made a separate ripeness argument, “standing
and ripeness should be viewed through the same lens....”
240.

Id. at

It had no difficulty determining that plaintiff passed both

jurisdictional hurdles and that his case should proceed.

It is

worth noting that the more liberal interpretation of the standing
requirement in the context of a First Amendment claim is
supported by case law from this circuit as well.

See, e.g.,

National Rifle Ass’n of America v. Magaw, 132 F.3d 272, 279 (6th
Cir. 1997)(“pre-enforcement review is usually granted under the
Declaratory Judgment Act when a statute ‘imposes costly,
self-executing compliance burdens or if it chills protected First
Amendment activity.’”), quoting Minnesota Citizens Concerned for
Life v. Federal Election Comm'n, 113 F.3d 129, 132 (8th Cir.
1997).
Like the plaintiff in Cooksey, Mr. Viola has alleged not a
general concern about whether the statements on his website might
violate O.R.C. §2921.03(a), or simply a subjective fear of
prosecution, but has identified a direct threat from a
governmental official that unless he removes certain content from
his website, he could be prosecuted.

Such threats are specific

in nature and are clearly the type of action which would deter a
“person of ordinary firmness” from either maintaining the
statements on the website or posting other similar statements in
the future.

That is enough to satisfy the injury-in-fact

requirement of Article III standing.
Mr. Kasaris does not strenuously argue that, if the Court
finds a sufficient injury in fact, the two remaining requirements
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of Article III standing - causation and redressability - are not
met.

The injury which Mr. Viola alleges stems directly from Mr.

Kasaris’ letter, and were the Court to grant relief in the form
of either a declaratory judgment that the website’s contents do
not violate state law, or an injunction prohibiting Mr. Kasaris
from filing criminal charges against Mr. Viola, the injury would
be redressed.

Consequently, it appears that Mr. Viola has

standing.
There is one potential problem in this line of reasoning.
The threat of prosecution contained in Mr. Kasaris’s letter did
not come directly from, for example, a county prosecutor - Mr.
Kasaris no longer holds that position - and it is not clear if
Mr. Kasaris, as an assistant attorney general, would have the
authority to initiate the prosecution by himself.

He argues, in

support of his Rule 12(b)(6) motion, that he does not have that
ability.

One might be tempted to ask whether a threat of

prosecution coming from someone who may not be able to make good
on that threat - at least not without the cooperation of some
other governmental actor - would actually deter a person of
ordinary firmness from continuing to speak out on the issues in
question.

But that appears to the Court to be a merits question

- namely, has the “state action” element of a claim under 42
U.S.C. §1983 been satisfied?

Courts are often cautioned not to

let merits questions bleed over into the standing analysis.

See,

e.g., Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th
Cir. 2009) (“[i]t is crucial, however, not to conflate Article
III's requirement of injury in fact with a plaintiff's potential
causes of action, for the concepts are not coextensive“).
Consequently, the Court will not take this issue into account for
purposes of the standing inquiry, and will now turn to the merits
question.
III.

State Action
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Mr. Viola bases his claim on the alleged infringement of his
rights under the First Amendment to the United States
Constitution.

The First Amendment - a remarkably short and plain

statement of the rights in question - says this about free
speech: “Congress shall make no law ... abridging the freedom of
speech ....”

Although, when ratified, this provision applied

only to Congress, its protections have since been applied to acts
of state governmental officials by means of the Due Process
Clause of the Fourteenth Amendment.

See, e.g., Palko v. State of

Connecticut, 302 U.S. 319, 326-27 (1937).
What has not occurred, however, is the extension of the
First Amendment to the conduct of private individuals.

As the

Supreme Court stated in Rendell-Baker v. Kohn, 457 U.S. 830, 837
(1982), “the Fourteenth Amendment, which prohibits the states
from denying federal constitutional rights and which guarantees
due process, applies to acts of the states, not to acts of
private persons or entities.”

Another way to phrase this concept

is to say that, in order for a suit to be maintained for the
violation of the First Amendment, there must be some “state
action” involved.

This is both a substantive requirement of

federal constitutional law and an element of a cause of action
under 42 U.S.C. §1983, the statute which allows private
individuals to sue for the violation of constitutional rights.
That statute says that a person “who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia” causes someone else to be
deprived of certain rights (including First Amendment rights) is
liable for that action.

The Supreme Court has equated these two

concepts, stating, in United States v. Price, 383 U.S. 787, 794
n.7 (1966), that “[i]n cases under §1983, ‘under color’ of law
has consistently been treated as the same thing as the ‘state
action’ required under the Fourteenth Amendment.”
-11-

Mr. Kasaris’s argument in support of his motion to dismiss
is straightforward.

He asserts that the letter in question was

written by him in his capacity as a private citizen, and not as a
governmental official.

If that is so, he cannot have violated

Mr. Viola’s First Amendment rights - only a governmental actor
can do that - and the complaint should therefore be dismissed for
failure to state a claim upon which relief can be granted.
State action, or action under “color of law,” is an element
of a §1983 claim.

The plaintiff in a §1983 case has the burden

of pleading facts from which a plausible inference can be drawn
that the plaintiff will be able to prove each element of his
claim.

See generally Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 570 (2007)(a proper complaint must plead “enough facts to
state a claim to relief that is plausible on its face"). As the
court in Real v. Mission, 2015 WL 4935627, *3 (M.D. Fla. Aug. 18,
2015), aptly observed, “[i]t is the plaintiff's burden to allege
state action on the part of the defendants named in a complaint
....”

So the key question here is: has Mr. Viola alleged any

facts from which it can plausibly be inferred that Mr. Kasaris
was acting in some official, as opposed to purely private,
capacity when he wrote the September 26, 2016 letter?
The first place to look in order to answer that question is
the complaint.

In ¶8, Mr. Viola alleges that “Defendant Daniel

Kasaris is the Senior Assistant Ohio Attorney General and a
licensed attorney in the State of Ohio, Bar # 0042315.”

The

multiple references in other parts of the complaint to
“Prosecutor Kasaris” and to the prosecution of Mr. Viola in
Cuyahoga County support the inference that, at the time of those
events, Mr. Kasaris was a Cuyahoga County prosecuting attorney.
¶15 alleges that Mr. Kasaris is an elected official, having been
first elected to the North Royalton City Council in 2007.
complaint refers to the letter written by Mr. Kasaris and
-12-

The

attaches a copy, and it states that Mr. Viola and others “are ...
concerned that they may be prosecuted by Mr. Kasaris....”
Complaint, ¶23.

Apart from those statements, nothing in the

complaint assists the Court in determining if Mr. Viola has
adequately pleaded that Mr. Kasaris was acting in an official
capacity when he wrote the letter in question.

And, as noted

above, the letter itself was not written on official letterhead,
nor did Mr. Kasaris use any of his official titles when signing
it.
The case law in this area is helpful.

One particularly

instructive decision is Teta v. Packard, 959 F.Supp. 469 (N.D.
Ill. 1997).

There, the plaintiff attempted to bring a Fourth

Amendment false arrest or malicious prosecution claim against an
employee of a state university who had filed a battery complaint
against the plaintiff.

The defendant conceded that he was a

state employee, but he argued that “he was not acting under color
of state law when he signed a criminal complaint” and that “the
power to file a criminal complaint is not conferred by statute
upon a select few, but is available to all private citizens as a
matter of right” - exactly the argument Mr. Kasaris makes here.
See Teta v. Packard, 959 F. Supp. at 475.

The court noted that

“[t]he traditional definition of acting under color of state law
requires that the defendant have exercised power ‘possessed by
virtue of state law and made possible only because the wrongdoer
is clothed with the authority of state law.’” Id., quoting West
v. Atkins, 487 U.S. 42, 49 (1988).

It also said this:

[N]ot every act committed by a public employee is
attributable to the state. Acts of state officials “in
the ambit of their personal pursuits” are not state
action. Screws v. United States, 325 U.S. 91, 111, 65
S.Ct. 1031, 1040, 89 L.Ed. 1495 (1945). Thus, a public
employee's private conduct, outside the scope of his
employment and unaided by any indicia of actual or
ostensible state authority, is not conduct occurring
under color of state law. Van Ort v. Estate of
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Stanewich, 92 F.3d 831, 835–36 (9th Cir. 1996), cert.
denied, 519 U.S. 1111, 117 S.Ct. 950, 136 L.Ed.2d 837
(1997): Martinez v. Colon, 54 F.3d 980, 986–87 (1st
Cir.), cert. denied, 516 U.S. 987, 116 S.Ct. 515, 133
L.Ed.2d 423 (1995); Barna v. City of Perth Amboy, 42
F.3d 809, 816 (3d Cir. 1994); Pitchell v. Callan, 13
F.3d 545, 548 (2d Cir. 1994). There can be no state
action or acting under of color of law if the
challenged conduct is not related in some meaningful
way either to the employee's governmental status or to
the performance of his duties. Martinez, 54 F.3d at
987.
That is a succinct and accurate statement of the law, and this
Court adopts and endorses it.
After examining the facts of the case, which indicated that
the plaintiff and defendant got into a fight in a dormitory lobby
and the defendant then filed a battery complaint, the court held
that no state action had been shown.

It relied on the Seventh

Circuit Court of Appeals’ decision in Johnson v. Miller, 680 F.2d
39, 40 (7th Cir. 1982), for this statement: “To file a criminal
complaint with the police is the act of a private citizen.”
Because that is so, and that is what the defendant did in that
case, the court held that he had not acted under color of law that is, that his action was not related in any meaningful way
either to his status as a state employee or his official position
- and that the claim against him had to be dismissed.

The same

result was reached in Smith v. Avent, 1999 WL 33891 (N.D. Ill.
Jan. 15, 1999), which involved a police officer who filed a
complaint against someone who had made harassing or threatening
phone calls to her at her home and place of work.

She filed the

complaint with another officer, as any private citizen would
have.

The court dismissed the claim brought under 42 U.S.C.

§1983, reasoning that “the allegations do not concern police
duties.

Rather, they are directed at actions taken by Avent as a

citizen filing a complaint against another citizen. The fact that

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she mentioned that she is a police officer in the complaint is
irrelevant.”

Id. at *2.

The Court has set out the legal principles which led both of
these courts to dismiss civil rights claims against government
employees who filed criminal complaints in the same way private
citizens would.

These same principles have been followed by this

Court, although in cases involving different facts.

So, for

example, in Libertarian Party of Ohio v. Husted, 188 F.Supp.3d
665, 672 (S.D. Ohio 2016), Judge Watson of this Court quoted this
language from Memphis, Tennessee Area Local, Am. Postal Workers
Union, AFL–CIO v. City of Memphis, 361 F.3d 898, 903 (6th Cir.
20040: “It is the nature of the act performed, not the clothing
of the actor or even the status of being on-duty, or off-duty,
which determines whether the officer acted under color of law.”
Applying these well-settled principles to the facts of this
case, as pleaded in the complaint, the Court concludes that when
Mr. Kasaris wrote the letter in question, he was acting as a
private citizen - or, more precisely stated, that Mr. Viola has
not plausibly alleged the opposite scenario.

Here, unlike the

defendants in either Teta v. Packard or Smith v. Avent, Mr.
Kasaris did not even file a criminal complaint; he merely
suggested that he had grounds to do so if he wished.

The

complaint does not allege any facts supporting the inference that
Mr. Kasaris was more able than the average citizen to follow
through with filing a criminal complaint just because of his
governmental positions.

The nature of the act he performed, or

threatened to perform, is, as Johnson v. Miller observed,
quintessentially a private act.

Absent some plausible and well-

pleaded facts which would distinguish this case from the routine
situation where one private citizen threatens to file a complaint
against another, the complaint simply does not satisfy the
pleading requirements for a First Amendment or §1983 claim.
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Because that is so, Mr. Kasaris’ motion to dismiss under Rule
12(b)(6) must be granted.
IV.

Recommended Disposition

For the reasons stated above, the Court recommends that
Defendant Daniel Kasaris’s motion to dismiss (Doc. 6) be granted,
that Plaintiff Tony Viola’s motion for a temporary restraining
order (Doc. 2) be denied, and that this case be dismissed for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).
V.

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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