Fannon v. Patterson et al

Filing 27

ORDER denying 16 Motion for Judgment on the Pleadings; denying 20 Motion to Appoint Counsel ; denying 20 Motion to Stay. Signed by Magistrate Judge Michael J Newman on 09/13/13. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CHRISTIAN P. FANNON,
Plaintiff,
vs.

:

Case No. 3:13-cv-14

:

Magistrate Judge Michael J. Newman
(Consent Case)

:

DON PATTERSON, et al.,

:

Defendants.

:

ORDER

This is a pro se 42 U.S.C. § 1983 action against the Mayor of the City of Kettering and
three City of Kettering police officers. This matter is now before the Court upon Defendants’
joint motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) (doc. 16); Plaintiff’s
memorandum in opposition (doc. 19); and Defendants’ reply memorandum (doc. 21).
Additionally, Plaintiff moves the Court to appoint him counsel and to stay the proceedings, see
doc. 20, and Defendants filed a memorandum in opposition to both requests, see doc. 22.
I.
In the motion for judgment on the pleadings, Defendants argue, with respect to several
claims, that Plaintiff’s complaint is vague and contains insufficient factual allegations. See doc.
16.

For example, Defendants assert Plaintiff has failed to allege adequate facts of an

unconstitutional governmental policy or custom to support a § 1983 claim against Defendants in
their official capacities. See id. at PageID 122-23; see also Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690-94 (1978).

Similarly, Defendants argue that Plaintiff makes only “vague

allegations against Mayor Patterson in his individual capacity.”

Doc. 16 at PageID 114.

Likewise, with respect to Plaintiff’s First Amendment retaliation claim, Defendants argue “the
protected conduct at issue remains unclear.” Id. at PageID 117. Furthermore, Defendants
contend that Plaintiff fails to provide the necessary degree of specificity to properly allege a § 1983
conspiracy claim. See id. at PageID 118-19; see also Gutierrez v. Lynch, 826 F.2d 1534, 1538-39
(6th Cir. 1987).
The Court has carefully reviewed Plaintiff’s complaint (doc. 5), and agrees that some of his
claims may not contain sufficient facts to satisfy Fed. R. Civ. P. 8(a). It is well established that
“more than bare assertions of legal conclusions [are] ordinarily required to satisfy federal notice
pleading requirements.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.
1988). The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556).
In light of the foregoing, and recognizing that Plaintiff is proceeding pro se, the Court sua
sponte AFFORDS him sixty (60) days -- until November 12, 2013 -- to file an amended
complaint stating adequate facts to satisfy Rule 8(a). Further, Plaintiff shall carefully review
Defendants’ motion for judgment on the pleadings (doc. 16), and cure any and all deficiencies
discussed therein. To that end, this Order constitutes an Order to Show Cause. In the event
Plaintiff does not comply with this Order, Plaintiff is ADVISED that his claims may be dismissed
for failure to satisfy Rule 8(a).

At this time, Defendants’ motion (doc. 16) is DENIED

WITHOUT PREJUDICE TO REFILE.

II.
Plaintiff’s motion for appointment of counsel, see doc. 20, is DENIED. The appointment
of counsel in a civil proceeding is not a constitutional right, but is “a privilege justified only by
exceptional circumstances.” Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir. 1993). Plaintiff
has failed to demonstrate that this is such an exceptional case warranting the appointment of
counsel.
III.
Plaintiff’s motion to stay these proceedings, see doc. 20, is likewise DENIED. It appears
that Plaintiff may be requesting a stay in order to obtain counsel. See id. at PageID 159. The
Court notes that the sixty-day period referenced above is intentionally longer than usual to account
for the fact that Plaintiff is incarcerated, and it might take him additional time to seek counsel
and/or amend his complaint. 1
IT IS SO ORDERED.
September 13, 2013

1

s/ Michael J. Newman
United States Magistrate Judge

Further, to the extent Plaintiff seeks to stay this case in order to file a motion to withdraw his guilty plea in
the Kettering Municipal Court, his motion is also unavailing. See id. at PageID 157. The City of
Kettering Municipal Court’s public records show that in one of the Municipal Court cases underlying this
lawsuit -- Case Number 11TRD00 591 -- Plaintiff’s written request to withdraw his guilty plea on
December 7, 2012 was denied. Additionally, the docket of that case shows that Plaintiff filed a motion to
vacate or set aside his judgment and conviction on August 12, 2013, and that motion was also denied.