Jackson et al v. Ohio State Highway Patrol et al

Filing 40

REPORT AND RECOMMENDATION and ORDER: Magistrate Judge GRANTS 31 ; RECOMMENDS GRANTING 3 , 8 , 20 , 21 , 23 , 27 , 30 , 33 ; RECOMMENDS DENYING 24 , 26 . Signed by Magistrate Judge Kimberly A. Jolson on 6/28/2017. (ew)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CLIFTON A. JACKSON, et al.,

Plaintiffs,
Case No. 2:17-cv-163
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Jolson

v.
OHIO STATE HIGHWAY
PATROL, et al.,
Defendants.

REPORT AND RECOMMENDATION AND ORDER
This matter is before the Court on a variety of Defendants’ dispositive motions (see Docs.
3, 8, 20, 21, 23, 27, 30, 33) and Plaintiffs’ motions for leave to amend and supplement the
complaint and obtain class action status (Doc. 24), and freeze all Defendants’ assets (Doc. 26).
For the reasons that follow, the undersigned RECOMMENDS that Defendants’ motions be
GRANTED, and Plaintiff’s motions be DENIED.
I.

PROCEDURAL BACKGROUND
Plaintiffs, a collection of twelve individuals proceeding pro se, filed the Complaint in this

matter in the Franklin County Common Pleas Court on January 20, 2017, alleging various statelaw torts and constitutional violations against seventeen defendants (local, state, and federal law
enforcements officials, as well as private-practice attorneys) in their individual and official
capacities. (See generally Docs. 1; 1-1). Plaintiffs seek “$29,411,764.205” in “compensatory,
punitive, and monetary damages” against each Defendant. (Id. at 14–15). Only one Plaintiff,
Clifton A. Jackson, an inmate at Lake Erie Correctional Institution, signed the Complaint. (Id. at
15).

On February 23, 2017, Defendant United States of America removed this action to the
United States District Court for the Southern District of Ohio pursuant to 28 U.S.C. § 2679(d)(2).
(Doc. 1). Currently pending before this Court are a number of dispositive motions: Defendant
United States of America’s Motion to Dismiss for Lack of Subject Matter Jurisdiction 1 (Doc. 3);
Defendants Ohio State Highway Patrol Trooper Christopher Beyer, Sergeant Trooper Michael
Trader, and Canine Argo’s Motion for Judgment on the Pleadings (Doc. 8); Defendant Jack W.
Bradley’s Motion to Dismiss (Doc. 20); Defendants Laura Ann Dezort, Peter J. Gauthier, John
R. Miraldi, Jennifer Riedthaler, Mary Slanczka, Dennis P. Will, and Edward Zaleski’s Motion to
Dismiss (Doc. 21); Defendant Paul A. Griffin’s Motion for Judgment on the Pleadings (Doc. 23);
Defendants Geno Taliano and Caitlin Szczepinski’s Motion to Dismiss (Doc. 27); Defendant
Paul Mancino, Jr.’s Motion for Judgment on the Pleadings (Doc. 30); and Defendant Mark
Aufdenkampe’s Motion for Judgment on the Pleadings, or, in the Alternative, For Summary
Judgment as to All Claims (Doc. 33).
On April 14, 2017, Plaintiffs filed their “Answer to Any and All Defendant(s)’ Motion to
Dismiss for Lack of Subject Matter Jurisdiction ‘And/Or’ Fed. Civ. R. 12(b)(1) or 12(b)(6)
Because Plaintiff(s) Have Pleaded Facts Which, if Proven, Would Entitle Them to Relief,
Dismissal is Inappropriate, and Both Parties Have Demanded a Jury Trial to Settle Their
Controversy!” (Doc. 25). Although several Defendants filed dispositive motions after Plaintiffs
filed their seemingly all-inclusive Response (see Docs. 27, 30, 33), the Court construes
Plaintiffs’ “Answer” as responding to all dispositive motions. Replies were filed by some
individual Defendants (see Docs 32, 35, 36), and the time for all other replies has expired.
Accordingly, the dispositive motions are now ripe for this Court’s review.
1

On February 23, 2017, the day this action was removed, pursuant to 28 U.S.C. § 2679(d), the United States of
America substituted for individual Defendants Geno Taliano and Caitlin Szczepinski with respect to the state-law
tort claims that Plaintiffs allege in their Complaint. (See Doc. 2).

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Also before the Court is Plaintiffs’ Request for Leave to Amend the Complaint to Include
Additional Injuries Which Have Happened Since the Date of the Pleading Sought to Be
Supplemented And Obtain Class Action Status (Doc. 24), as well as Plaintiff’s Motion to Freeze
All Defendant(s)’ Assets Pursuant to Fed. Civ. R. 64 (Doc. 26). Several Defendants filed
Oppositions to these motions (see Docs. 34, 37, 38, 39), and Defendant Paul Mancino, Jr. filed a
Motion to Join Defendant Paul A. Griffin’s Opposition (Doc. 31), which is hereby GRANTED.
Plaintiffs filed no reply. Plaintiffs’ motions are thus also ripe for consideration.
II.

FACTUAL BACKGROUND
In their Complaint, Plaintiffs include a “claim” for each of the seventeen defendants that

alleges, in some variation, the following:
Plaintiff alleges that Defendant . . . while acting under the color of law conspired
to deprive Plaintiffs of constitutional rights (equal protection & due process)
under provisions of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution by engaging in an overt act in furtherance of the
conspiracy and as a direct result of Defendant’s overt act, Plaintiff has suffered
injuries of intentional infliction of emotional distress, intentional discriminatory
prosecution, intentional tort, consortium and intentional deprivation of the abovestated state and federally protected rights to the Constitution of the United States
and Laws. Said deprivations commencing on June 14, 2011 and continuing to
date, which intentional acts were racially motivated and substantially certain to
produce deprivation of Plaintiffs’ constitutional rights. Defendant engaged in an
overt act with malicious purpose, in bad faith, or in a wanton or reckless manner,
which form the basis for stating Civ. R. 3; 42 U.S.C. §§ 1981, 1983, 1985(3), and
1986[.]
(See e.g., Doc. 1-1 at 6) (emphasis in original). Other than those seventeen “claims,” no other
factual allegations are made within the Complaint.
However, upon review of the hundreds of pages of attachments that Plaintiffs filed with
their Complaint in state court, 2 it appears that this action arises from a traffic stop of Mr. Jackson

2

Defendant Griffin correctly noted in his Motion for Judgment on the Pleadings that although Plaintiff’s Complaint
became part of this Court’s docket (see Doc. 4), the voluminous attachments were not appropriately transferred

3

performed by Ohio State Highway Patrol Trooper Christopher Beyer on June 14, 2011. (See
e.g., Doc. 23-1, PAGEID #: 212–217). During the stop, Canine Argo, who was under the control
of Sergeant Trooper Michael Trader, performed a sniff test, alerted Sergeant Trader to the
presence of drugs, and a subsequent search of Mr. Jackson’s trunk revealed two kilograms of
cocaine and drug packaging materials. (See id.; see also Doc. 27 at 2).
Mr. Jackson alleges in a 42-page affidavit attached to the Complaint that his trunk was
illegally searched by Sergeant Trader and Trooper Beyer without his consent or a search warrant,
he was illegally detained, and his arrest report was falsified. (Doc. 23-1, PAGEID #: 215–18).
Further, Mr. Jackson alleges he was “prey” to Sergeant Trader and Trooper Beyer’s practice of
racial profiling, and Canine Argo only alerted to the presence of drugs because Sergeant Trader
commanded him to do so. (Id., PAGEID #: 240).
Following the traffic stop, Mr. Jackson was taken to a holding room in which he was
interviewed by two DEA officers, Task Force Officer (“TFO”) Geno Taliano and Special Agent
(“SA”) Caitlin Szczepinski. (Doc. 22-2, PAGEID #: 218). Mr. Jackson states the DEA officers
then took possession of the alleged illegally obtained evidence (i.e. the drugs, his cell phones,
and his money). (Id.). Mr. Jackson claims that, over the next several days, Trooper Beyer, TFO
Taliano, and SA Szczepinski continuously attempted to discuss the drugs with him, despite
having previously invoked his right to counsel and right to remain silent. (Id., PAGEID #: 219).
On or about June 17 or 18, 2011, attorney Jack Bradley was retained to represent Mr.
Jackson, under the verbal premise, according to Plaintiff’s allegations, that no motion would be
filed, nor should any hearings or the right to a speedy trial be waived, without his participation or
approval. (Id., PAGEID #: 219–20). Despite this, Mr. Jackson alleges, inter alia, that Mr.

following removal. Consequently, Defendant Griffin included the attachments as exhibits to his Motion. (See Docs.
23-2, 23-3).

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Bradley filed motions, “waived the speedy trial clock,” and requested continuances, all without
his consent. (Id., PAGEID #: 220–27). Further, Mr. Jackson expressed disagreement and
dissatisfaction in how various portions of his case were handled and the perceived lack of
communication from Mr. Bradley. (Id., PAGEID #: 223–32).
In August 2011, Mr. Jackson was arraigned before Judge Edward Zaleski. (Id., PAGEID
#: 220). After Judge Zaleski’s retirement in December 2012, his successor, Judge John Miraldi
was assigned to Mr. Jackson’s case. (Id., PAGEID #: 233). In his affidavit, Mr. Jackson states
that Judge Miraldi “exhibited a bias disposition misleading the record regarding the state
appointment of counsel” during a pretrial hearing on November 25, 2013. (Id.). Further, Mr.
Jackson alleges that Judge Miraldi “went on the record to allege past and/or present
problems/issues exist(s)(ed) between [Mr. Jackson] and past counsel that never appeared before
and/or existed on record.”

(Id.).

Mr. Jackson again alleged Judge Miraldi had a “bias

disposition” in denying his motion to dismiss and motion to preclude. (Id., PAGEID #: 237).
On November 18, 2013, attorney Mark Aufdenkampe was appointed to represent Mr.
Jackson in place of Mr. Bradley.

(Id., PAGEID #: 233).

Mr. Jackson alleges that Mr.

Aufdenkampe failed to file a “critical motion to dismiss and motion to preclude,” that he was
then forced to draft himself, and failed to object during trial as instructed. (Id., PAGEID #: 236–
37, 240). Additionally, Mr. Jackson states that on his second day of trial, he arrived late due to
weather and traffic conditions, of which he informed Mr. Aufdenkampe, yet Mr. Aufdenkampe
failed to notify Judge Miraldi, who thus began the trial without Mr. Jackson present. (Id.,
PAGEID #: 239).
During trial, Mr. Jackson alleges that Trooper Beyer and Sergeant Trader gave perjured
testimony, “prompting Civil Rights violations, Constitutional Rights Violations, judicial

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misconduct, prosecutorial misconduct, and also, violations of Due Process and Equal Protection
Clauses.” (Id., PAGEID #: 249). Mr. Jackson was ultimately convicted in the Lorain County
Court of Common Pleas, and sentenced to eleven years imprisonment. (Id., PAGEID #: 240;
Doc. 27 at 2).
During the course of his appeal, Mr. Jackson alleges that he was “not comfortable” with
his appellate counsel, Paul Griffin, because his office was next door to Mr. Bradley’s and he did
“not trust anyone whom Judge John R. Miraldi appointed.” (Id., PAGEID #: 241–42). Further,
Mr. Jackson states that he sent a detailed document addressing what he believed to be civil and
constitutional rights violations to Mr. Griffin and received no response. (Id., PAGEID #: 242).
Mr. Jackson retained subsequent appellate counsel, Mr. Paul Mancino, Jr., but he
allegedly “failed to communicate with [him] through visits, postage (mail) correspondence, etc.”
(Id., PAGEID #: 242; see also id., PAGEID #: 246–48). For example, Mr. Jackson states that he
sent him “various detailed letters containing specific instructions” regarding his appeal that Mr.
Mancino never responded to, and he ultimately filed the appellate brief without consulting with
Mr. Jackson or allowing him an opportunity for review. (Id., PAGEID #: 243–45). Further, Mr.
Jackson repeatedly laments that he never had an open or direct line of communication with Mr.
Mancino, despite his best efforts (id., PAGEID #: 245–50).
On appeal, the Ninth District Court of Appeals upheld the conviction and sentence,
rejecting Mr. Jackson’s contentions that he was denied due process of law. (Id.). Mr. Jackson
confusingly states that Mr. Mancino failed to inform him he could appeal this decision to the
Supreme Court of Ohio, yet in the next paragraph of his affidavit he states that Mr. Mancino sent
him a letter informing him that he had 45 days to appeal to the Ohio Supreme Court and he
should contact the State of Ohio Public Defenders office for help. (Id., PAGEID #: 250).

6

On August 17, 2015, the State of Ohio Public Defenders office allegedly chose not to
appoint Mr. Jackson representation, and instead sent him a pro se packet on how to file a delayed
appeal to the Ohio Supreme Court. (Id., PAGEID #: 251). On October 28, 2015, the Supreme
Court of Ohio denied Mr. Jackson’s motion for a delayed appeal. (Id., PAGEID #: 252).
Mr. Jackson’s affidavit ends with the following conclusion:
The points made herein, not only supports blatant violations of the 4th amendment
(under the “Fruit of the Poisonous Tree Doctrine”), not limited to with respect to
the illegal actions of Ohio State Troopers Christopher Beyer, Michael Trader, and
K-9 Argo individually and collectively. It also supports blatant violations of the
6th amendment (under effective assistance of counsel, and rights to a fair trial)
with respect to the ineffective representation of counsel at all levels, not limited to
(former retained attorney) Jack Bradley, (Court appointed attorney) Mark
Aufdenkampe, (court appointed appeals attorney) Paul Griffin, and (retained
appeals attorney) Paul Mancino Jr., individually and collectively, It also supports
blatant violation of the 6th amendment (due process, right to a fair trial) with
respect to the actions of judicial bias of suppression hearing Judge – Edward
Zaleski (retired) and trial Judge – John R. Miraldi, individually and collectively.
It also supports blatant violations of the 6th amendment (under due process, right
to a fair trial), with respect to the actions of prosecutorial misconduct by the
Lorain County Prosecutor’s Office, and the Assistant Prosecuting Attorney’s
whom represented the State of Ohio throughout the life of this case individually
and collectively.
(Id., PAGEID #: 253).
III.

STANDARD
The Defendants filed seven dispositive motions (see Docs. 8, 20, 21, 23, 27, 30, 33)

structured as either motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) (see Docs. 20, 21,
27), or motions for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) (see Docs. 8, 23,
30, 33).
The only difference between Rule 12(c) and Rule 12(b)(6) is the timing of the motion to
dismiss, and thus, the motions are determined under the same standard of review. See Hunter v.

7

Ohio Veterans Home, 272 F. Supp. 2d 692, 694 (N.D. Ohio 2003) (citing Morgan v. Church’s
Fried Chicken, 829 F.2d 10, 11 (6th Cir. 1987)).
Federal Rule of Civil Procedure 12(b)(6) requires that a complaint “state a claim to relief
that is plausible on its face” to survive a motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 66364, 678 (2009); Bell Atlantic Corp v. Twombly, 550 U.S. 544, 570 (2007). In reviewing the
complaint, a court must construe it in favor of the plaintiff and accept all well-pleaded factual
allegations as true. Twombly, 550 U.S. at 57. “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.” Iqbal, 556 U.S. at 678 (emphasis added) (citing Twombly,
550 U.S. at 556).
On the other hand, a complaint that consists of “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” is insufficient. Twombly, 550 U.S. at 555); see
also Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011) (plaintiff must give specific,
well-pleaded facts, not just conclusory allegations). In other words, while “detailed factual
allegations” are not required under Fed. R. Civ. P.8(a)(2)’s “short and plain statement” rule, the
law “demands more than [Plaintiffs’] unadorned, the-defendant-unlawfully-harmed-me
allegation.” Iqbal, 556 U.S. at 677-78, quoting Twombly, 550 U.S. at 555 (citing to Papasan v.
Allain, 478 U.S. 265, 286 (1986)).
Although pro se complaints are to be construed liberally, Haines v. Kerner, 404 U.S. 519,
520 (1972), “basic pleading essentials” are still required. Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989). Stated differently, “[t]he requirement for liberal construction . . . does not translate to
ignoring a clear failure in the pleading to allege facts which set forth a cognizable claim.” Kidd v.
Neff, No. 1:12-cv-40, 2012 WL 4442526, at *2 (E.D. Tenn. Sept. 25, 2012) (dismissing pro se

8

plaintiff’s “incredibly vague” Bivens complaint); see also Smith v. Breen, No. 09-2770, 2010 WL
2557447, at *6 (W.D. Tenn. June 21, 2010) (collecting cases). Ultimately, to avoid dismissal,
Mr. Jackson’s Complaint “must contain either direct or inferential allegations with respect to all
the material elements” of his claims. Wittstock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th
Cir. 2003) (citing Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003)).
IV.

DISCUSSION
As an initial matter, and as several Defendants noted (Doc. 8 at 2; Doc. 20 at 5; Doc. 23

at 3), Mr. Jackson is the only Plaintiff who signed the Complaint. Pursuant to Fed. R. Civ. P.
11(a), when two or more plaintiffs are proceeding as co-plaintiffs, each plaintiff must sign the
complaint. Shannon v. Johnson, No. 3:12-CV-01318, 2013 WL 1564223, at *1 (M.D. Tenn.
Apr. 12, 2013). Further, to the extent that Mr. Jackson “is seeking to bring a class action on
behalf of himself and others similarly situated, courts have repeatedly held that ‘pro se prisoners
cannot adequately represent a class.’”

Peters v. Osborne, No. 4:14CV-P2-M, 2014 WL

1379340, at *2 (W.D. Ky. Apr. 8, 2014) (citing Ziegler v. Michigan, 59 F. App’x 622, 624 (6th
Cir. 2003). Thus, Mr. Jackson is precluded from representing anyone other than himself in this
action and the Court will consider the alleged claims as applied to him only. See Moore v.
Warren, No. 13-CV-11831, 2014 WL 1464404, at *3 (E.D. Mich. Apr. 15, 2014).
A. Plaintiff’s Federal Claims
In addressing Mr. Jackson’s claims against the seventeen Defendants, the undersigned
considers both the Complaint and the attached exhibits. See Bassett v. Nat’l Collegiate Athletic
Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (“When a court is presented with a Rule 12(b)(6)
motion, it may consider the Complaint and any exhibits attached thereto, public records, items
appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so long

9

as they are referred to in the Complaint and are central to the claims contained therein.”). Upon
review, however, Mr. Jackson’s federal claims consist only of conclusory allegations and
boilerplate legalese.
1. Ohio State Highway Patrol and Troopers (Doc. 8)
Mr. Jackson alleges that the Ohio State Highway Patrol, Trooper Christopher Beyer,
Sergeant Trooper Michael Trader, (collectively, “the Highway Patrol Defendants”), and Canine
Argo violated his rights under 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986. Based on Mr.
Jackson’s affidavit, the Court presumes these actions are brought as a result of the alleged racial
profiling. As an initial matter, Canine Argo cannot be sued, for only “persons” may be sued
under these sections.
Addressing first the § 1981 claim, this section “prohibits racial discrimination in the
making of contracts and affords a federal remedy against racial discrimination in private
employment.” Anthony v. BTR Auto. Sealing Sys., Inc., 339 F.3d 506, 512 (6th Cir. 2003). To
establish a § 1981 claim, Plaintiff must show (1) he is a member of a racial minority, (2) the
defendant(s) intended to discriminate on the basis of race, and (3) the discrimination concerned
one or more of the activities enumerated in Section 1981. Burton v. Plastics Research Corp.,
134 F. Supp. 2d 881, 887 (E.D. Mich. 2001) (citing Johnson v. Harrell, No. 97–5257, 1998 WL
57356, at *2 (6th Cir. Feb. 2, 1998)). Although Mr. Jackson accuses the Highway Patrol
Defendants of racial profiling, he fails to allege that he is a member of a racial minority or that
the discrimination concerned activities enumerated in § 1981.
Turning next to the § 1983 claim, Mr. Jackson must present evidence that (1) there was a
deprivation of a right secured by the Constitution and (2) the deprivation was caused by a person
acting under color of state law. See e.g., Wittstock, 330 F.3d at 902. “Section 1983 ‘is not itself

10

a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’” Noffsinger v. Landers, 196 F. Supp. 3d 746, 751 (N.D. Ohio 2016)
(quoting Albright v. Oliver, 510 U.S. 266, 271 (1994)). Here, Mr. Jackson failed to state, with
sufficient factual allegations, that he has actually been deprived of a federally protected right.
While he vaguely states his constitutional rights have been violated, he points to no specific
factual scenarios for the Court to rely on.
As to Mr. Jackson’s § 1985 claim, Plaintiff must prove (1) a conspiracy involving two or
more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons
of the equal protection of the laws and (3) an act in furtherance of the conspiracy (4) which
causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the
United States. Johnson v. Hills & Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994). Further,
Plaintiff must also establish that the conspiracy was motivated by a class-based animus. Id. And
this class “must possess the characteristics of a discrete and insular minority, such as race,
national origin, or gender.” Haverstick Enter., Inc. v. Fin. Fed. Credit, Inc., 32 F.3d 989, 994
(6th Cir. 1994) (citing Hicks v. Resolution Trust Corp., 970 F.2d 378, 382 (7th Cir. 1992)). As
previously stated, Mr. Jackson has failed to allege he belongs to any such protected class.
Further, Mr. Jackson’s allegations of a conspiracy are limited to simply stating a conspiracy
existed. This is not enough.
Finally, Mr. Jackson’s failure to state a claim for relief under § 1985 is fatal to his claims
brought pursuant to § 1986 because a § 1986 claim is dependent upon a viable § 1985 claim.
Amadasu v. The Christ Hosp., 514 F.3d 504, 507 (6th Cir. 2008) (citing Bartell v. Lohiser, 215
F.3d 550, 560 (6th Cir. 2000); Haverstick Enters., Inc., 32 F.3d at 994). Consequently, Mr.
Jackson has failed to plead more than a formulaic recitation of the elements of various causes of

11

action as to the Highway Patrol Defendants.

It is therefore RECOMMENDED that the

Highway Patrol Defendants’ Motion (Doc. 8) be GRANTED.
2. Lorain County Prosecutor, Assistant Prosecutors, and Judges (Doc. 21)
Mr. Jackson alleges the same claims against the Lorain County Prosecutors and Assistant
Prosecutors—Dennis P. Will, Jennifer M Riedthaler, Peter J. Gauthier, Laura Ann Dezort, and
Mary Slanczka (collectively, “the Prosecutorial Defendants”)—as he did against the Highway
Patrol Defendants, with the addition of a § 1988 claim. However Mr. Jackson fails to allege any
facts that identify any injured cause by a specific act taken by any of the Prosecutorial
Defendants. Indeed, Mr. Will and Ms. Riedthaler were not even mentioned in Mr. Jackson’s
affidavit of facts, and the other three were mentioned only in describing the duties they
performed. (Doc. 23-2, PAGEID #: 220 (“I received a copy of the motion of discovery reply
authored by Assistant Prosecuting Attorney Laura Ann Dezort”); id., PAGEID #: 238
(explaining that Assistant Prosecutor Gauthier “made an oral motion for Trooper Michael Trader
to be able to sit at the prosecution’s table as a representative”); id., PAGEID #: 246 (“Assistant
Prosecuting Attorney, Mary Slanczka [], filed the appellee Brief, requesting oral arguments.”)).
Mr. Jackson vaguely alleges “prosecutorial misconduct” at the end of his affidavit, but provides
no facts or basis for the allegations.
As to Judge Edward Zaleski and Judge John Miraldi (collectively, “the Judicial
Defendants”), again Mr. Jackson fails to allege any overt act, or set of facts, that could support a
constitutional claim. Even construing the Complaint most favorably to Mr. Jackson, the entirety
of his argument against the Judges is that they showed “bias” against him when they ruled
against him on various motions, but this alone is not enough to support a claim.

12

Overall, these bare assertions fail to state a claim with facial plausibility. Moreover, both
the Judicial Defendants and the Prosecutorial Defendants are immune from damages in civil
lawsuits arising from their judicial and prosecutorial acts in Mr. Jackson’s underlying matter.
See e.g., Ireland v. Tunis, 113 F.3d 1435, 1443 (6th Cir. 1997) (“Absolute or ‘quasi-judicial’
immunity derived from common-law immunity accorded to judges has been extended to
prosecutors when the prosecutorial activity is intimately associated with the judicial phase of the
criminal process.”) (internal quotations omitted). Accordingly, it is RECOMMENDED that the
Judicial Defendants and the Prosecutorial Defendants’ Motion to Dismiss (Doc. 21) be
GRANTED.
3. DEA Agents (Doc. 27)
Mr. Jackson also brought claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986
against two DEA agents, TFO Taliano and SA Szczepinski (collectively, “the DEA
Defendants”). As was the case with the Prosecutorial Defendants, it is unclear what conduct Mr.
Jackson is challenging, for Plaintiff alleges only that they interviewed Mr. Jackson, gathered the
evidence, and asked him about the drugs found on him after he had been mirandized. Even if
this were taken as true, Mr. Jackson does not allege that he made any statements post-Miranda
that now should be suppressed. Accordingly, it is again uncertain what overt act the DEA
Defendants engaged in that violated Plaintiff’s rights. Further, the DEA Defendants point out in
their Motion that Mr. Jackson alleges that they continue to deprive him of his constitutional
rights, but he offers no explanation for what continued violation he is referring too.
Moreover, the DEA Defendants assert that they are entitled to qualified immunity. (Doc.
27 at 7). For a plaintiff “to overcome a qualified immunity defense, [he] must show that his []
own rights were violated, and that the violation was committed personally by the defendant[s].”

13

Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir. 2014) (emphasis in original). Once a defendant
has raised qualified immunity, the plaintiff bears the burden of showing that the defendant is not
entitled to qualified immunity. See e.g., Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009).
Here, Mr. Jackson has not met that burden, as he offers only legal conclusions, with no facts
supporting a constitutional violation. Thus, it is RECOMMENDED that the DEA Defendants’
Motion to Dismiss (Doc. 27) be GRANTED
4. Mr. Jackson’s Attorneys (Doc. 20, 23, 30, 33)
The Complaint alleges that each of Mr. Jackson’s attorneys—Jack Bradley, Mark
Aufdenkampe, Paul Griffin, and Paul Mancino (collectively, “the Attorney Defendants”)—
deprived Plaintiff of his “constitutional rights (right to counsel and fair trial)” while acting under
“the color of law” pursuant to 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986, and 1988. However,
“[i]n order for a private entity to ‘act under color of state law’ for § 1983 purposes, ‘its actions
[must] so approximate the state action that they may be fairly attributed to the state.’” Probst v.
Cent. Ohio Youth Ctr., 511 F. Supp. 2d 862, 867 (S.D. Ohio 2007) (citing Lansing v. City of
Memphis, 202 F.3d 821, 828 (6th Cir. 2000)). Here, it cannot be said that Mr. Jackson’s
attorneys’ actions approximated to state action such that they could be considered state actors. It
is thus RECOMMENDED that the Attorney Defendants’ Motions for Judgment on the
Pleadings (Doc. 23, 30, 22) and Motion to Dismiss (Docs. 20) be GRANTED.
B. Plaintiff’s State-Law Claims
1. Defendant USA’s Motion to Dismiss for Lack of Jurisdiction (Doc. 3)
Defendant United States of America moves to dismiss itself from this action under Fed.
R. Civ. P. 12(b)(1), because it alleges that Plaintiffs did not exhaust administrative remedies
under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, before filing the

14

Complaint. (Doc. 3). Consequently, the United States argues this Court lacks subject matter
jurisdiction over Mr. Jackson’s state law tort claims. (Id.).
The United States is immune from suit unless Congress specifically waives sovereign
immunity in statutory text. United States v. Bormes, 133 S.Ct. 12, 16 (2012) (quoting United
States v. Nordic Village, Inc., 503 U.S. 30, 33–34 (1992)); FAA v. Cooper, 566 U.S. 284, 290
(2012) (collecting cases). Because sovereign immunity is jurisdictional in nature, the “‘terms of
[the United States’] consent to be sued in any court define that court’s jurisdiction to entertain
the suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994) (quoting United States v. Sherwood, 312
U.S. 584, 586 (1941)).
The Federal Tort Claims Act is a limited waiver of sovereign immunity for certain state
law torts committed by federal employees. 28 U.S.C. § 1346(b); see also FDIC v. Meyer, 510
U.S. at 475–476. The FTCA applies to Mr. Jackson’s state law tort claims because the DEA
Defendants have been certified as acting within the scope of their employment at the time of the
events giving rise to Plaintiff’s claims. (See Doc. 1-3). One of the conditions of the FTCA’s
limited waiver of sovereign immunity is that the claimant must completely exhaust
administrative remedies with the agency that gave rise to the claim before filing a complaint in
district court. Here, the DEA has no record that Mr. Jackson presented an administrative tort
claim.

(See Doc. 3-1).

Consequently, because Mr. Jackson has failed to present an

administrative tort claim, this Court does not have subject matter jurisdiction over the United
States.

It is therefore RECOMMENDED that the United States of America’s Motion to

Dismiss (Doc. 3) be GRANTED.

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2. Remaining State-Law Claims Against Other Defendants
To the extent Mr. Jackson has any remaining claims against the other Defendants (like
intentional infliction of emotional distress and “consortium”), they arise under state law.
However, because Mr. Jackson’s federal-question claims fail, see supra, the Court has no hook
for supplemental jurisdiction. When all federal claims are dismissed before trial, state-law
claims “generally should be dismissed as well.” Brooks v. Rothe, 577 F.3d 701, 709 (6th Cir.
2009). Consequently, the undersigned RECOMMENDS dismissing the remaining state-law
claims against all Defendants. See Mathis v. Doctor’s Hosp. (West), No. 2:12-cv-358, 2012 U.S.
Dist. LEXIS 80190 *9–10 (S.D. Ohio June 11, 2012) (adopting recommendation not to exercise
supplemental jurisdiction where federal claims failed).
C. Plaintiff’s Motion For Leave to Amend, Supplement, and Obtain Class Action
Status (Doc. 24)
Mr. Jackson seeks leave to amend his Complaint, supplement his Complaint to “include
additional injuries which have happened since the date of the pleading sought to be
supplemented,” and to obtain class action status. (Doc. 24). As previously discussed, pro se
prisoners are not able to represent fairly a class, see Palasty v. Hawk, 15 F. App’x 197, 200 (6th
Cir. 2001), thus, it is RECOMMENDED that the portion of the Motion dealing with class status
is DENIED. As to the remainder of the Motion, “[t]he standard for granting leave to supplement
under Rule 15(d) is identical to the standard governing leave to amend under Rule 15(a).”
Kanoski v. Sterling Paper, Co., No. 209CV00439, 2010 WL 3910483, at *1 (S.D. Ohio Oct. 4,
2010) (citing Spies v. Voinovich, 48 F. App’x 520, 527 (6th Cir. 2002)).
Although courts ordinarily will not consider the merits of a proposed amended complaint
in ruling on a motion for leave to amend or supplement, the Sixth Circuit has held that “the
district court may deny a motion for leave to amend a complaint if such complaint, as amended,
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could not withstand a motion to dismiss.’”

Kanoski, 2010 WL 3910483, at *2 (quoting

Neighborhood Dev. Corp. v. Advisory Council on Historic Preservation, 632 F.2d 21, 23 (6th
Cir. 1980)). In other words, “if there is no set of facts which could be proved under the
amendment which would constitute a valid and sufficient claim, leave should be denied. Id.
(citing Cooper v. American Employers’ Ins. Co., 296 F.2d 303, 307 (6th Cir. 1961)).
In his proposed amended complaint, as was the case with the original complaint, Mr.
Jackson alleges conclusory allegations of racial discrimination, judicial bias, and prosecutorial
misconduct which are unsupported by material facts. See Lynch-Bey v. Caruso, No. CIV.A. 0572378, 2007 WL 1775388, at *2 (E.D. Mich. June 20, 2007). Accordingly, Mr. Jackson’s
proposed amended complaint contains neither direct, nor inferential, allegations with respect to
all the material elements of his claims.

Thus, the undersigned believes Mr. Jackson’s

amendment is futile, and because the Court “is not required to entertain frivolous or meritless
amendments,” id., it is RECOMMENDED that Plaintiff’s Motion to Amend (Doc. 24) be
DENIED.
D. Plaintiff’s Motion to Freeze All Defendants’ Assets (Doc. 26)
Mr. Jackson also moves to freeze all Defendants’ assets pursuant to Fed. R. Civ. P. 64.
(Doc. 26). Specifically, he argues that because he has a civil action pending, which is requesting
damages, his Motion should be granted “to secure satisfaction of the potential judgment.” (Id. at
2).
Federal Rule of Civil Procedure 64 provides that during the course of civil litigation in
federal court, “all remedies providing for seizure of person or property for the purpose of
securing satisfaction of the judgment ultimately to be entered in the action are available under
the circumstances and in the manner provided by the law of the state in which the district court is

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held . . . .” Fed. R. Civ. P. 64(a). Under Ohio law, a writ of attachment is available against
property “other than personal earnings” in a civil action seeking money damages “at or after its
commencement” on various grounds. Ohio Rev. Code § 2715.01. Such a writ may only be
issued, however, where it is “likely” that the plaintiff will prevail on its claims. Ohio Rev. Code
§ 2715.011(A); see also Enable Healthcare, Inc. v. Cleveland Quality Healthnet, LLC, No. 1:16cv-2395, 2016 WL 6821980, at *3 (N.D. Ohio Nov. 18, 2016).
As explained above, Plaintiff has failed to state a claim for which relief can be granted,
meaning he is not likely to prevail such that a writ of attachment is appropriate. Accordingly, it
is RECOMMENDED that Plaintiff’s Motion to Freeze All Defendants’ Assets (Doc. 26) be
DENIED.
V.

CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Defendants’ Motions

(Docs. 3, 8, 20, 21, 23, 27, 30, 33) be GRANTED, and Plaintiff’s Motions (Doc. 24, 26) be
DENIED. Further, Defendant Paul Mancino, Jr.’s Motion to Join Defendant Paul A. Griffin’s
Opposition (Doc. 31), is GRANTED.
Procedure on Objections to Report and Recommendation
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) 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

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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).
IT IS SO ORDERED.

Date: June 28, 2017

/s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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