Crowder v. Yost et al

Filing 38

ORDER: (1) GRANTING DEFENDANTS MOTIONS TO DISMISS (DOC. NOS. 7 , 8 , 9 , 15 , 17 , 20 , 25 , 26 ) AND (2) TERMINATING THIS CASE ON THE COURTS DOCKET. Signed by Judge Michael J. Newman on 9/9/21. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROBERT CROWDER, JR.,
Plaintiff,

Case No.: 3:21-cv-103

v.
DAVE YOST, et al.,

District Judge Michael J. Newman

Defendants.
______________________________________________________________________________
ORDER: (1) GRANTING DEFENDANTS’ MOTIONS TO DISMISS (DOC. NOS. 7, 8, 9,
15, 17, 20, 25, 26) AND (2) TERMINATING THIS CASE ON THE COURT’S DOCKET
______________________________________________________________________________
This case is presently before the Court on the motions to dismiss filed by Defendant
Mathias H. Heck, Jr.; Defendants Randy Dupree, Jeremy Fischer, and Jason Holdren; Defendant
Attorney General Dave Yost; Defendant Johnson & Johnson; Defendant McKinsey Corporation;
Defendant Judge Robert Peeler; and Defendant Derek Faulkner. Doc. Nos. 7, 8, 9, 15, 17, 20, 25,
26. Pro se Plaintiff filed a memorandum in opposition. Doc. No. 32. The Court has considered
the foregoing, and these motions are now ripe for review.
I.
Plaintiff’s pro se complaint 1 alleges 2:
They have an elaborate human trafficking ring going on they are using
legislation and the power to prosecute as a way to embezzle millions. They are
accomplishing this with a settlement that they received from Mckinsey and
Johnson & Johnson. After receiving the settlement they are then putting
legislation into effect through chapter 169 of the ohio revised code that will bar
the beneficiaries of that money through an amendment that Larry Horseback
pushed through to legislators. So they then don’t put the party on notice of the
settlement so that they can then take their settlement. Essential violating ohio
The Court questions whether this complaint would have survived scrutiny under 28 U.S.C. § 1915(e)(2), but Plaintiff
paid the filing fee, so we do not answer that question here. Doc. No. 3.
2
All quotations taken from Plaintiff’s complaint have been left unaltered.
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citizens right to due process and utilizing this to embezzle money through
business to business exemptions.
Doc. No. 1 at PageID 4. Regarding the relief requested, Plaintiff states:
The relief requested is that the attorney general and all state and county
prosecutors need to stop the malicious prosecution of the drug offenders in ohio.
The reason for the half of prosecution is because attorney general and all
prosecutor’s have an unlawful interest in the prosecution. Evidence of the
unlawful interest is the prosecutor’s violation of defendants rights to be put on
notice of a settlement in accordance with chapter 169 of the ohio revised code.
They took this civil rights violation further by covering violation with
adjustment to legislation which takes effect April 12, 2021. Why is the attorney
general and his delegates not notifying beneficiaries of this settlement? Why
are the not holding up there fiduciary duty? It can be argued that service of
notice was met when they put in news paper. This would be valid if attorney
general and delegates did not have infractions against citizens.
Doc. No. 1 at PageID 6. Defendants seek to dismiss Plaintiff’s complaint for a number of reasons,
including, but not limited to, failure to state a claim, lack of standing, and lack of personal
jurisdiction. Doc. Nos. 7, 8, 9, 15, 17, 20, 25, 26.
II.
At the motion to dismiss stage, the Court must accept the non-moving party’s factual
allegations as true and construe the complaint in the light most favorable to the non-moving party.
Hill v. Blue Cross & Blue Shield of Mich., 409 F.3d 710, 716 (6th Cir. 2005). A motion to dismiss
filed pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint and permits
dismissal for “failure to state a claim upon which relief can be granted.” To show grounds for
relief, Fed. R. Civ. P. 8(a)(2) requires that the complaint contain a “short and plain statement of
the claim showing that the pleader is entitled to relief.”
While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations’ . . . it demands more
than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Pleadings offering
mere “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
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not do.’” Id. (citing Twombly, 550 U.S. at 555). In determining a motion to dismiss, “courts ‘are
not bound to accept as true a legal conclusion couched as a factual allegation.’” Twombly, 550
U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Further, “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Id.
In order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at
678. A claim is plausible where “plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. Plausibility “is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged -- but it has not ‘show[n]’ -‘that the pleader is entitled to relief.’” Id. at 679 (alteration in original) (citing Fed. R. Civ. P.
8(a)(2)).
While pro se parties must satisfy basic pleading requirements, Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989), their pleadings must be liberally construed and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “even a pro se complaint
‘must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible
on its face.’” Ogle v. Columbia Gas Transmission, LLC, 513 F. App’x 520, 522 (6th Cir. 2013)
(quoting Iqbal, 556 U.S. at 678).
III.
Defendants Yost, Holdren, Dupree, Fischer, Heck, Peeler, Faulkner, McKinsey
Corporation, and Johnson & Johnson each move to dismiss Plaintiff’s complaint under Fed. R.
Civ. P. 12(b)(6) for failure to state an actionable claim. Doc. Nos. 7, 8, 9, 15, 17, 20, 25, 26.
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A. Immunity
Defendants Heck, Holdren, Dupree, Fisher, Yost, Peeler, and Faulkner each assert that
Plaintiff’s claims are barred by various immunity provisions. Doc. Nos. 7, 8, 9, 25, 26. Defendants
Heck, Holdren, Dupree, Fisher, and Faulkner each assert that Plaintiff’s claims are barred by
absolute prosecutorial immunity, or, in the alternative, qualified immunity. Defendant Yost asserts
that Eleventh Amendment immunity bars Plaintiff’s claims against him. Defendant Judge Peeler
argues that absolute judicial immunity shields him from Plaintiff’s claims. While Plaintiff
responds to the arguments regarding qualified immunity, Plaintiff does not specifically respond to
the claims regarding prosecutorial immunity, judicial immunity, and Eleventh Amendment
immunity. Doc. No. 32-2. The Court will address each of these arguments in turn.
1. Prosecutorial Immunity
Prosecutorial immunity bars claims against prosecutors for performing their prosecutorial
functions. Imbler v. Pachtman, 424 U.S. 409, 420 (1976). “Prosecutors are entitled to absolute
immunity for conduct ‘intimately associated with the judicial phase of the criminal process.’”
Manetta v. Macomb Cnty. Enforcement Team, 141 F.3d 270, 274 (6th Cir. 1998) (quoting Imbler,
424 U.S.at 430). Prosecutorial immunity includes a county prosecutor’s initiation of a prosecution
and presentation of the State’s case at trial. Imbler, 424 U.S. at 431; see also Ireland v. Tunis, 113
F.3d 1435, 1446 (6th Cir. 1997). Such “absolute prosecutorial immunity is not defeated by a
showing that a prosecutor acted wrongfully or even maliciously.” Lomaz v. Hennosy, 151 F.3d
493, 498 n.7 (6th Cir. 1998) (citing Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989)).
Plaintiff’s complaint alleges that “the attorney general and all state and county prosecutors
need to stop the malicious prosecution of the drug offenders in ohio.” Doc. No. 1 at PageID 6. He
additionally asserts that “[t]he reason for the halt of prosecution is because attorney general and
all prosecutor’s have an unlawful interest in prosecution.” Id. Plaintiff requests to know why the
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Attorney General and his delegates are not notifying certain unidentified beneficiaries of the
alleged settlement he briefly mentions in his complaint. Id.
Defendant Heck serves as the Montgomery County Prosecutor. Doc. No. 7 at PageID 34.
He asserts that to the extent that Plaintiff brings these claims in relation to his position as the
Montgomery County Prosecutor, and in relation to his role in prosecuting drug offenders,
Defendant Heck is entitled to absolute immunity. Id.
Defendant Holdren is the elected Prosecuting Attorney of Gallia County, Ohio. Doc. No.
8 at PageID 45.

Defendants Dupree and Fisher are assistant Gallia County prosecutors. Id.

Defendants Holdren, Dupree, and Fisher note that Plaintiff does not plead any personal
involvement of these defendants and that these defendants are not mentioned outside of the case
caption.

Id.

Plaintiff’s complaint focuses on the “power to prosecute” and “malicious

prosecution” of “drug offenders.” Id. Defendants Holdren, Dupree, and Fisher assert that because
Plaintiff’s complaint is based on their alleged unlawful initiation of lawsuits in their prosecutorial
roles, they are entitled to absolute prosecutorial immunity. Id.
Finally, Defendant Faulkner similarly argues that to the extent Plaintiff brings these causes
of action against him in his capacity as a Warren County Assistant Prosecutor, for his role in
prosecuting drug offenders, he is entitled to absolute immunity. Doc. No. 26 at PageID 113.
Plaintiff’s memorandum in opposition does not address these arguments. While Plaintiff
refers to “defendants counterclaims” of immunity, he does not provide any argument that
specifically addresses prosecutorial immunity. See generally Doc. No. 32-3. Thus, Defendants’
arguments are unrefuted. Furthermore, Plaintiff’s assertions that -- “the attorney general and all
state and county prosecutors need to stop the malicious prosecution of the drug offenders in ohio”
and that “[t]he reason for the halt of prosecution is because attorney general and all prosecutor’s

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have an unlawful interest in prosecution” -- were directly related to the Defendants’ role in
initiating and presenting cases. Doc. No. 1 at PageID 6. Because prosecutorial immunity bars
claims related to the initiation and presentation of cases, Plaintiff’s claims are barred by absolute
prosecutorial immunity. Imbler, 424 U.S. at 431.
Additionally, each of these Defendants assert that if the claims are not barred by absolute
prosecutorial immunity, then the claims are barred by qualified immunity. Doc. Nos. 7, 8, 26. As
the Court finds that prosecutorial immunity bars the claims against Defendants Heck, Holdren,
Dupree, Fisher, and Faulkner, there is no need to reach the argument that the claims are also barred
by qualified immunity.
2. Eleventh Amendment Immunity
Plaintiff brings a claim against Ohio Attorney General Dave Yost based on the same
alleged malicious prosecution of certain drug offenders. Doc. No. 1. In response, Attorney
General Yost argues that Plaintiff’s official capacity claims against him are barred by the Eleventh
Amendment. Doc. No. 9 at PageID 51.
The Eleventh Amendment expressly provides that federal courts have no jurisdiction over
“any suit in law or equity” filed “against one of the United States.” U.S. Const. amend. XI. This
sovereign immunity also extends to state officials sued in their official capacities. Maben v.
Thelen, 887 F.3d 252, 270 (6th Cir. 2018). “[A] suit against a state official in his or her official
capacity is not a suit against the official but rather is a suit against the official’s office … As such,
it is no different from a suit against the State itself.” Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989) (citations omitted). “Generally, plaintiffs must designate in which capacity they are
suing defendants; if not, by operation of law, defendants are deemed sued in their official
capacities.” Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 1999). In this case, Plaintiff refers to

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Defendant Yost as “attorney general” in his Complaint. Doc. No. 1 at PageID 6. Thus, the Court
construes this action as one against Defendant Yost in his official capacity.
The United States Supreme Court has recognized a narrow exception to Eleventh
Amendment sovereign immunity for lawsuits against government officials in their official
capacities if a plaintiff seeks only non-monetary relief. Ex Parte Young, 209 U.S. 123, 155-56
(1908). The Ex Parte Young exception permits a plaintiff suing a defendant in their official
capacity to “seek prospective relief to end a continuing violation of federal law.” Doe v. Wright
State Univ., No. 3:16-cv-469, 2017 WL 3671240, at *4 (S.D. Ohio Aug. 24, 2017) (citing Diaz v.
Mich. Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2014)). However, a plaintiff cannot use the Ex
Parte Young exception to seek relief that is retrospective. See Diaz 703 F.3d at 965.
For the Ex Parte Young exception to apply, Plaintiff must also include sufficient allegations
describing the “connection” between the enforcement by the government official and the
underlying unconstitutional act. Children’s Healthcare is a Legal Duty v. Deters, 92 F.3d 1412,
1415 (6th Cir. 1996) (“[S]uch officer must have some connection with the enforcement of the act,
or else it is merely making ... the state a party” (quoting Young, 209 U.S. at 157)). “General
authority to enforce the laws of the state is not sufficient to make government officials the proper
parties to litigation challenging the law.” Id. at 1416 (citations omitted). The Ex Parte Young
exception “requires more than a bare connection to administering a statute” and does not apply to
state officials who lack a “special relation to the particular statute” or “[are] not expressly directed
to see its enforcement.” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015)
(quoting Young, 209 U.S. at 157).
In this case, the Ex Parte Young exception does not apply. Plaintiff does not allege any
direct connection between the Ohio Attorney General’s implementation of an unknown

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“amendment” to Ohio Rev. Code Chapter 69 and a violation of Plaintiff’s constitutional rights.
Children’s Healthcare is a Legal Duty, 92 F.3d at 1415. The Ohio Attorney General is not directly
connected to legislative amendments or to distribution of settlement money from lawsuits, thus,
Plaintiff fails to state a sufficient connection to any statute to trigger the Ex Parte Young exception.
See Young, 209 U.S. at 157. Attorney General Dave Yost is entitled to Eleventh Amendment
immunity on Plaintiff’s claims.
3. Judicial Immunity
Judge Peeler moves to dismiss Plaintiff’s complaint, asserting that absolute judicial
immunity precludes claims against him for injunctive relief. Doc. No. 25 at PageID 104-05.
Plaintiff does not mention Judge Peeler by name in the complaint, so it is unclear what relief
Plaintiff requests from him. More generally, however, Plaintiff appears to seek injunctive relief,
as he requests that the Attorney General and county prosecutors stop the “malicious prosecution”
of drug offenders in Ohio. Doc. No. 1 at PageID 6. Regardless of the type of relief sought, absolute
judicial immunity shields Judge Peeler from Plaintiff’s claims.
“It is well-established that judges enjoy judicial immunity from suits arising out of the
performance of their judicial functions.” Brookings v. Clunk, 389 F.3d 614, 617 (6th Cir. 2004).
To the extent the Court construes Plaintiff’s complaint as one arising under 42 U.S.C. § 1983, state
judges, like Judge Peeler, enjoy absolute immunity from liability under 42 U.S.C. § 1983. Id.
Absolute immunity protects judges acting in their judicial capacity even where a judge acts
corruptly or with malice. Id.; see also Mireles v. Waco, 502 U.S. 9, 11 (1991).
Judicial immunity can be overcome in only two circumstances: (1) a judge is not immune
from liability for nonjudicial actions (i.e., actions not taken in the judge’s judicial capacity); and
(2) a judge is not immune for actions taken in the complete absence of all jurisdiction. Leech v.
DeWeese, 689 F.3d 538, 542 (6th Cir. 2012) (citing Mireles, 502 U.S. at 11-12). While the cause
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of action Plaintiff brings against Judge Peeler is not entirely clear from his complaint, Plaintiff
refers to a settlement, malicious prosecution, and distribution of funding to beneficiaries. Doc.
No. 1 at PageID 6. This characterization suggests that the cause of action stems from Judge Peeler’s
judicial actions as they pertain to criminal prosecutions in his courtroom or some type of settlement
he approved in his judicial capacity. Additionally, Plaintiff does not allege that Judge Peeler
lacked jurisdiction to decide any particular case. As Plaintiff does not allege facts that, when
accepted as true, show either of the exceptions to judicial immunity apply, Judge Peeler is entitled
to absolute judicial immunity from Plaintiff’s claims. Cf. Schorle v. City of Greenhills, 524 F.
Supp. 821, 828 (S.D. Ohio 1981), abrogated on other grounds by Vodila v. Clelland, 836 F.2d
231, 235 (denying motion to dismiss on grounds of judicial immunity after finding that a mayor
serving as judicial officer in mayoral court acted without any jurisdiction).
B. Plausibility Standard
Defendants assert that Plaintiff’s complaint fails to state an actionable claim. Defendants
contend that Plaintiff’s complaint is unsupported, utilizes formulaic labels and conclusions, and
does not contain sufficient factual content to make out any legal cause of action. Doc. Nos. 7, 8,
9, 15, 17, 20, 25, 26. Plaintiff does not specifically respond to these arguments. Doc. No. 32-3.
Allegations set forth in a pleading “must be simple, concise, and direct.” Fed. R. Civ. P.
8(d)(1). A complaint must contain “either direct or inferential allegations respecting all material
elements necessary for recovery under a viable legal theory.” Phila. Indem. Ins. Co. v. Youth Alive,
Inc., 732 F.3d 645, 649 (6th Cir. 2013) (citation and internal quotation marks omitted). Without
the clear expression of valid, cognizable legal theory, a complaint fails to put defendants on notice
of the claims against them. Pethtel v. Tenn. Dep't of Child. Servs., No. 3:10-CV-469, 2020 WL
6827791, at *2 (E.D. Tenn. Nov. 20, 2020).

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While pro se pleadings are to be “liberally construed,” they must still satisfy basic pleading
requirements. Wells, 891 F.2d at 594. The Court is “not required to conjure up allegations not
pleaded or guess at the nature of an argument.” Brown v. Wal-Mart Stores, Inc., 507 F. App’x 543,
547 (6th Cir. 2012); Bender v. Dep't of Veterans Affairs, No. 3:20-cv-441, 2021 WL 1087365, at
*1 n. 1 (S.D. Ohio Mar. 22, 2021). While a pro se plaintiff “is not required to recite chapter and
verse of the statute upon which he relies, he must provide the court and the defendant with
sufficient information about the basis for his claim to satisfy federal notice pleading requirements.”
Hawkins v. Youngstown Mun. Ct., No. 4:12-CV-1029, 2012 WL 4050167, at *2 (N.D. Ohio Sept.
13, 2012).
The Court has conducted an extensive and careful review of the complaint, accepting its
factual allegations as true and construing it in the light most favorable to Plaintiff. Hill, 409 F.3d
at 716. However, the Court finds the complaint deficient in many areas due to the vagueness in
which Plaintiff alleges claims against the many Defendants. Defendants are largely left to guess
about what specific claims Plaintiff seeks to raise. However, noting that “appropriate liberal
construction requires active interpretation in some cases to construe a pro se” pleading, Franklin
v. Rose, 765 F.2d 82, 85 (6th Cir. 1985), the Court has identified and will address several potential
claims that Plaintiff seems to assert.
The first two sentences of Plaintiff’s complaint assert “they have an elaborate human
trafficking ring going on they are using legislation and the power to prosecute as a way to embezzle
millions. They are accomplishing this with a settlement that they received from Mckinsey and
Johnson & Johnson.” Doc. No. 1 at PageID 4. Plaintiff continues, “[a]fter receiving the settlement
they are then putting legislation into effect through chapter 169 of the ohio revised code that will
bar the beneficiaries of that money through an amendment that Larry Horseback pushed through

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to legislators.” Id. Plaintiff argues that “they” don’t put the beneficiaries on notice of this
settlement in order to take money from the settlement. Id.
While it is not entirely clear who “they” are, the Court will assume this refers to all
Defendants. Liberally construed, this claim could be an allegation that Defendants were involved
in a civil conspiracy under 42 U.S.C. § 1983 to engage in human trafficking and embezzlement.
“A civil conspiracy is an agreement between two or more persons to injure another by
unlawful action.” Hooks v. Hooks, 771 F.2d 935, 943-44 (6th Cir. 1985). While there need not be
an express agreement, Plaintiff must establish “that there was a single plan, that the alleged
coconspirator shared in the general conspiratorial objective, and that an overt act was committed
in furtherance of the conspiracy that caused injury to the complainant.” Id. at 944. “It is wellsettled that conspiracy claims must be pled with some degree of specificity and that vague and
conclusory allegations unsupported by material facts will not be sufficient to state such a claim
under § 1983.” Spadafore v. Gardner, 330 F.3d 849, 854 (6th Cir. 2003).
Plaintiff’s complaint fails to plausibly establish these elements in the instant case. The
complaint fails to plead facts showing the existence of a “single plan.” See Hooks, 771 F.2d at 944.
Plaintiff makes only conclusory allegations that Defendants conspired to engage in human
trafficking, to use the proceeds of an unknown settlement to embezzle money, and to rely on an
unnamed piece of legislation to enable Defendants to embezzle this money. Doc. No. 1 at PageID
4. Plaintiff does not put forth factual allegations that would support the conclusory statements that
all Defendants conspired with one another. Trans Rail Am., Inc. v. Hubbard Twp., 478 F. App’x
986, 988 (6th Cir. 2012); Farhat v. Jopke, 370 F.3d 580, 599 (6th Cir. 2004). Because conclusory
statements of a conspiracy are insufficient, Plaintiff’s complaint does not state a plausible claim
for civil conspiracy. Trans Rail, 478 F. App’x at 988.

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Next, Plaintiff alleges that the previously discussed actions of Defendants are “violating
ohio citizens right to due process and utilizing this to embezzle money through business to business
exemptions.” Doc. No. 1 at PageID 4. Liberally construed, the Court interprets this to be a 42
U.S.C. § 1983 claim for violation of due process under the Fourteenth Amendment.
In order to state a claim under § 1983, a plaintiff must: (1) allege the violation of a right
secured by the Constitution and law of the United States; and (2) show that the alleged deprivation
was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1991)
(citations omitted). The Court assumes that Plaintiff brings these claims against Defendants in both
their official and individual capacities.
“[A] section 1983 action against [an official] in his or her official capacity is treated as an
action against the [public] entity itself.” Barber v. City of Salem, Ohio, 953 F.2d 232, 237 (6th
Cir. 1992) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)). Thus, any official capacity claims
Plaintiff brings against Defendants are, in actuality, claims against Defendants’ associated entities
including: the State of Ohio (Defendant Yost); Gallia County (Defendants Holdren, Dupree, and
Fisher); and Montgomery County (Defendant Heck).
As discussed supra Part.III.A.2, any official capacity claim against Attorney General Yost
and, in turn, the State of Ohio, is barred by sovereign immunity. Maben, 887 F.3d at 270. On the
other hand, local government entities, such as Gallia County and Montgomery County, are
considered persons and “may be sued for constitutional deprivations.” Monell v. Dep’t of Soc.
Servs., 436 U.S. 658 (1978). However, these entities cannot be held liable under § 1983 for the
acts of employees or officials on a respondeat superior theory. Id. at 693. Instead, an official
policy or custom must be the “moving force” behind the alleged constitutional deprivation.” See
City of Canton v. Harris, 489 U.S. 378, 389 (1989). To demonstrate Monell liability, a plaintiff

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must: (1) identify the policy or custom; (2) connect the policy to the governmental entity; and (3)
show injury of a constitutional magnitude incurred because of that policy’s execution. Alkire v.
Irving, 330 F.3d 802, 815 (6th Cir. 2003) (internal citations omitted).
Here, Plaintiff fails to allege the existence of a custom or policy that resulted in his alleged
constitutional injuries. See Doc. No. 1. Thus, any Monell claims against Gallia and Montgomery
County fail and are dismissed.
As to the claims against Defendants Yost, Holdren, Dupree, Fischer, Heck, Peeler, and
Faulkner in their individual capacities, as previously discussed supra Part.III.A., each of these
Defendants are immune from individual liability based on either Eleventh Amendment immunity,
absolute prosecutorial immunity, or absolute judicial immunity.
Finally, to the extent that Plaintiff asserts a due process claim against McKinsey
Corporation and Johnson & Johnson, this claim also fails. McKinsey Corporation and Johnson &
Johnson are private corporations and are not state actors under § 1983. A private party’s actions
can constitute “state action” under the Fourteenth Amendment if that party’s actions may be “fairly
attributable to the state.” Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (citing Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Only where “there is such a close nexus between
the State and the challenged action that seemingly private behavior may be fairly treated as that of
the State itself. Brent v. Wayne Cty. Dep’t of Human Servs., 901 F.3d 656, 676 (6th Cir. 2018)
(quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)). A
plaintiff must plead -- through specific factual details in the complaint -- that the requisite nexus
exists between the state and the private actor. Id. at 677. Plaintiff fails to do so.
McKinsey Corporation and Johnson & Johnson are only mentioned in one sentence in
Plaintiff’s “Statement of Claim” where he alleges that Defendants are “embezzle[ing] billions”

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through a settlement involving these two Defendants. Doc. No. 1 at PageID 4. This one sentence
is insufficient to allege a close nexus between the state and either McKinsey Corporation or
Johnson & Johnson. Plaintiff also fails to identify what process was due, what liberty or property
was deprived, or how his rights were infringed personally. Siefert v. Hamilton Cty., 951 F.3d 753,
762 (6th Cir. 2020) (“To sue under [the due process] clause, the [plaintiffs] must have a liberty or
property interest that triggers the process requirement, and then they must show they received
insufficient process.”). Thus, any due process claim against McKinsey Corporation and Johnson
& Johnson must be dismissed.
Because the Court is unable to identify any plausible claim in Plaintiff’s complaint,
Defendants Yost, Holdren, Dupree, Fischer, Heck, Peeler, Faulkner, McKinsey Corporation, and
Johnson & Johnson’s motions to dismiss under Fed. Civ. P. 12(b)(6) for failure to state an
actionable claim are GRANTED. Doc. Nos. 7, 8, 9, 15, 17, 20, 25, 26.
IV.
For the foregoing reasons, the Court GRANTS the motions to dismiss filed by Defendants
Yost, Holdren, Dupree, Fischer, Heck, Peeler, Faulkner, McKinsey Corporation, and Johnson &
Johnson. Doc. Nos. 7, 8, 9, 15, 17, 20, 25, 26. This case is TERMINATED on the Court’s docket.
IT IS SO ORDERED.
Date:

September 9, 2021

s/Michael J. Newman
Hon. Michael J. Newman
United States District Judge

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