Tyson v. Carter et al

Filing 47

DECISION AND ENTRY ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE (DOC. # 43 ) AND OVERRULING OBJECTIONS THERETO OF PLAINTIFF STEVE TYSON (DOC. # 44 ); DEFENDANT MUTAWAKKIL CARTER'S MOTION TO DISMISS PLAINT IFF'S SECOND AMENDED COMPLAINT (DOC. # 28 ) IS SUSTAINED IN PART AND OVERRULED IN PART; CLAIM THREE IN THE SECOND AMENDED COMPLAINT (DOC. # 9 ) SHALL PROCEED TO DISCOVERY; CLAIMS ONE, TWO, FOUR, FIVE, AND NINE ARE DISMISSED WITHOUT PREJUDICE TO REFILING WITHIN TWENTY-EIGHT(28) DAYS ; CLAIMS SIX AND TEN ARE DISMISSED WITH PREJUDICE AGAINST CARTER IN HIS OFFICIAL CAPACITY AND DISMISSED WITHOUT PREJUDICE TO RENEWAL AGAINST CARTER IN HIS INDIVIDUAL CAPACITY SHOULD THE STATE OF OHIO COURT OF CLA IMS DETERMINE THAT CARTER IS NOT IMMUNE FROM SUIT. The Report (Doc. # 43 ) is REJECTED to the extent it recommends the dismissal of Claims One, Two, Four, Five, and Nine with, rather than without, prejudice. The Report is ADOPTED in al l other respects, and Plaintiff's Objections (Doc. # 44 ) are OVERRULED. Pursuant to the Report and the Court's de novo review thereof, Claims One, Two, Four, Five, and Nine are DISMISSED WITHOUT PREJUDICE to refiling within twenty-eight (28) days of this entry. Claims Six and Ten are DISMISSED WITH PREJUDICE to the extent that they are asserted against Carter in his official capacity. To the extent Claims Six and Ten are raised against Carter in his ind ividual capacity, they are DISMISSED WITHOUT PREJUDICE for lack of subject-matter jurisdiction, subject to renewal if the State of Ohio Court of Claims determines that Carter is not immune from suit. Claim Three shall proceed to discovery. Signed by Judge Walter H. Rice on 8/28/2024. (bjr)(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
WESTERN DIVISIONAT DAYTON

STEVE TYSON,
Plaintiff,

Case No. 3:22-cv-211
V.

MUTAWAKKIL CARTER, et

Judge Walter H. Rice

al.,

Magistrate Judge Peter B. Silvain, Jr.
Defendants.

DECISION AND ENTRY ADOPTING IN PART AND REJECTING IN PART

REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE (DOC.
#43) AND OVERRULING OBJECTIONS THERETO OF PLAINTIFF STEVE
TYSON (DOC. #44); DEFENDANT MUTAWAKKIL CARTER'S MOTION
TO DISMISS PLAINTIFF'SSECOND AMENDED COMPLAINT (DOC. #28)
IS SUSTAINED IN PART AND OVERRULED IN PART; CLAIM THREE IN
THE SECOND AMENDED COMPLAINT (DOC. #Q) SHALL PROCEED TO
DISCOVERY; CLAIMS ONE, TWO, FOUR, FIVE, AND NINE ARE
DISMISSED WITHOUT PREJUDICE TO REFILING WITHIN TWENTYEIGHT (28) DAYS ; CLAIMS SIX AND TEN ARE DISMISSED WITH
PREJUDICEAGAINST CARTER IN HIS OFFICIALCAPACITY AND
DISMISSEDWITHOUT PREJUDICETO RENEWALAGAINST CARTER IN
HIS INDIVIDUALCAPACITY SHOULD THE STATE OF OHIO COURT OF
CLAIMS DETERMINETHAT CARTER IS NOT IMMUNE FROM SUIT

Before the Court are Defendant Mutawakkil Carter's Motion to Dismiss the

Second Amended Complaint of Plaintiff Steve Tyson (Doc. #28), the Report and
Recommendations of Magistrate Judge Peter B. Silvain, Jr., recommending that the
Motion be sustained in part and overruled in part (Doc. #43), and Plaintiff's

Objections to the Report. (Doc. #44). On September 12, 2022, Plaintiff Steve
Tyson filed his Second Amended Complaint in this matter, raising the following
claims against Defendant Mutawakkil Carter:

1. Claim One: Unreasonable search and seizure relating to detention
at a traffic stop, in violation of the Fourth Amendment;
2. Claim Two: Retaliation, in violation of the First Amendment;
3. Claim Three: Unreasonable search and seizure relating to arrest, in
violation of the Fourth Amendment;

4. Claim Four: Failure to implement and abide by policing review

procedures, in violation of 34 U. S. C. § 12601;
5. Claim Five: Civil conspiracy, in violation of 42 U. S. C. § 1985;
6. Claim Six: Malicious prosecution;

7. Claim Nine: Civil conspiracy, in violation of unspecified federal
constitutional rights; and
8. Claim Ten: Assault via record falsification.

(Doc. #9).

On September 15, 2023, Carter moved to dismiss all eight claims against
him. (Doc. #28, PAGEID 184). On July 19, 2024, the Magistrate Judge issued

the Report, recommending that the Motion be overruled with respect to Claim
Three and sustained as to all other claims. The Magistrate Judge recommended
that Claims One, Two, Four, Five, and Nine, the federal statutory and
constitutional claims, be dismissed with prejudice. He further recommended that
Claims Six and Ten, the state law claims, be dismissed with prejudice to the extent

they are raised against Carter in his official capacity and, to the extent they are
raised against Carter in his individual capacity, they should be dismissed without
prejudice to renewal if the State of Ohio Court of Claims determines that Carter is
not entitled to immunity from suit. (Doc. #43, PAGEID 242). Carter did not object

to the Report, and the time for doing so has expired. FED. R. Civ. P. 72(b)(3).

I.

Legal Standards

Carter's Motion was referred to the Magistrate Judge pursuant to 28 U. S. C.
§ 636 and Federal Rule of Civil Procedure 72(b)(1), under which the Magistrate

Judge "must enter a recommended disposition, " and "a party may serve and file
specific written objections to the proposed findings and recommendations.
FED. R. Civ. P. 72(b)(1-2). "The district judge must determine de novo any part of

the magistrate judge's disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.'
FED. R. CIV. P. 72(b)(3).

Rule 8(a) provides that a complaint must contain "a short and plain
statement of the claim showing that the pleader is entitled to relief. " The

complaint must provide the defendant with "fair notice of what the . . . claim is

and the grounds upon which it rests. " Bell Atlantic Corp. v. Twombly, 550 U. S.
544, 555 (2007) (quoting Con/e/ v. Gibson, 355 U. S. 41, 47 (1957)). Rule

12(b)(6) allows a party to move for dismissal of a complaint on the basis that it
"failts] to state a claim upon which relief can be granted. " The moving party "has
the burden of showing that the opposing party has failed to adequately state a
claim for relief. " DirecTV, Inc. v. Treesh, 487 F. 3d 471, 476 (6th Cir. 2007)

(citing Carver v. Bunch, 946 F. 2d 451, 454-55 (6th Cir. 1991)). The purpose of a
Rule 12(b)(6) motion to dismiss "is to allow a defendant to test whether, as a

matter of law, the plaintiff is entitled to legal relief even if everything alleged in the

complaint is true. " Mayer v. Mylod, 988 F. 2d 635, 638 (6th Cir. 1993). In ruling
on a Rule 12(b)(6) motion, the Court must "construe the complaint in the light

most favorable to the plaintiff, accept its [well-pleaded] allegations as true, and
draw all reasonable inferences in favor of the plaintiff. " Handy-Clay v. City of

Memphis, 695 F. 3d 531, 538 (6th Cir. 2012) (quoting Treesh, 487 F. 3d at 476).
Nevertheless, to survive a Rule 12(b)(6) motion, the complaint must contain

"enough facts to state a claim to relief that is plausible on its face. " Twombly,
550 U. S. at 570. Unless the facts alleged show that the plaintiff's claim crosses

"the line from conceivable to plausible, [the] complaint must be dismissed. " Id.
Although this standard does not require "detailed factual allegations, " it does

require more than "labels and conclusions" or "a formulaic recitation of the
elements of a cause of action. " Id. at 555. "Rule 8 . . . does not unlock the doors

of discovery for a plaintiff armed with nothing more than conclusions. " Ashcroft
i/. Iqbal, 556 U. S. 662, 678-79 (2009). Legal conclusions "must be supported by
well-pleaded factual allegations . . . [that] plausibly give rise to an entitlement of
relief. " Id. at 679. "Although for the purposes of this motion to dismiss we must

take all the factual allegations in the complaint as true, we are not bound to accept

as true a legal conclusion couched as a factual allegation. " Papasan v. Attain, 478
U. S. 265, 286 (1986).
II.

Analysis

In his Objections, Plaintiff's only concrete statements with respect to Carter
are that: (1) he will not dismiss his claims against Carter; (2) Carter's arrest of

Tyson did not arise from "a traffic stop[;] this was entrapment designed to take my

guns and [Commercial Driver License]; and (3) "Carter tried to make me a felon."
(Doc. #44, PAGEID 244, II 1-2, 6 (emphasis in original)). 1 The first statement is
immaterial, as there is no mention anywhere in the Report of Plaintiff voluntarily
dismissing any claims. The second and third statements appear to reiterate
Plaintiff's contention that, through his arrest of Plaintiff, Carter was attempting to

deprive Plaintiff of his liberty and property. However, these statements are bare
conclusions of legal liability, rather than explanations of why any factual
allegations in the Second Amended Complaint support his claims. The statements
do not address the problems identified in the Report: that Plaintiff had failed to

allege all the necessary elements of his claims, or that his factual allegations,
accepted as true, did not give rise to a plausible claim for relief. (Doc. #43,
PAGEID 226-30, 232-42, citing Iqbal, 556 U. S. at 678; Twombly, 550 U. S. at
555 (2007); Fieger v. Cox, 524 F. 3d 770, 776 (6th Cir. 2008); Briscoe v.

Jackson, 285 F. App'x 205, 208 (6th Cir. 2008)).2
1 Defendants filed a Response to the Objections, urging the Court to adopt the Report in full (Doc.
#45, PAGEID250-51), and Plaintiff filed a brief Reply that did not address the subject matter of his
suit. (Doc. #46). The Court has considered these filings, and they do not alter the undersigned's
analysis.

2 Carter filed his dashcam video as part of the Motion, Plaintiff assented to the submission (Memo.

in Opp., Doc. #30, PAGEID 189), and the Report notes instances where Carter's dashcam video
contradicts the allegations in the Second Amended Complaint. (Doc. #43, PAGEID227). Under
Ohio law, a dashcam video is a public record. State ex re/. Cincinnati Enquirer v. Ohio Dep't of Pub.

Safety, 148 Ohio St. Sd 433, 2016-0hio-7987, If 34, and it is well-settled that the Court may
consider matters of public record without converting a motion to dismiss to one for summary

judgment. Elec. Merch. Sys. LLCv. Gaal, 58 F. 4th 877, 883 (6th Cir. 2023) (internal quotation
marks and citation omitted). Thus, the Court may properly consider instances where dashcam

footage contradicts Plaintiff's allegations in evaluating whether he has stated a claim for relief

The Court's de novo review of the Report leads the undersigned to conclude

that the Magistrate Judge aptly and accurately explained why, except for Claim
Three, Plaintiff's claims against Carter are either legally insufficient or factually

implausible. Plaintiff's Objections do nothing to call the Magistrate Judge's
explanations and conclusions into question. Accordingly, they are OVERRULED.
As to all but Claim Three, Plaintiff has not met Iqbal-Twombly's modest bar

of plausibility. The Report's discussion of the claims (which this Court

incorporates through its adoption of the Report) repeatedly describes how the
pleaded claims have missing elements or are factually belied by public record. "A
proposed amendment is futile if the amendment could not withstand a Rule
12(b)(6) motion to dismiss. " Rose v. Hartford Underwriters Ins. Co., 203 F. 3d
417, 420 (6th Cir. 2000). Given Plaintiff's pro se status and the Court's strong

preference for adjudication on the merits, the Court is prepared to give Plaintiff one
last chance to set forth plausible claims with respect to Claims One, Two, Four,
Five, and Nine. The Court rejects the Report's recommendation that those claims
be dismissed with prejudice. Rather, they will be dismissed without prejudice to

refiling within twenty-eight (28) days of this entry. However, as to Claims Six and
Ten, the Magistrate Judge is correct that, as official capacity claims against Carter,
they are barred by the Eleventh Amendment-and, thus, must be dismissed with
prejudice-and that the Court lacks jurisdiction over them as individual capacity
claims. (Doc. # 43, PAGEID 239-240). Consequently, Plaintiff may not file
amended Claims Six and Ten in this Court.

For the reasons set forth above, the Report (Doc. #43) is REJECTED to the
extent it recommends the dismissal of Claims One, Two, Four, Five, and Nine with,

rather than without, prejudice. The Report is ADOPTED in all other respects, and
Plaintiff's Objections (Doc. #44) are OVERRULED. Pursuant to the Report and the
Court's de novo review thereof, Claims One, Two, Four, Five, and Nine are
DISMISSED WITHOUT PREJUDICE to refiling within twenty-eight (28) days of this

entry. Claims Six and Ten are DISMISSED WITH PREJUDICE to the extent that
they are asserted against Carter in his official capacity. To the extent Claims Six
and Ten are raised against Carter in his individual capacity, they are DISMISSED
WITHOUT PREJUDICE for lack of subject-matter jurisdiction, subject to renewal if
the State of Ohio Court of Claims determines that Carter is not immune from suit.
Claim Three shall proceed to discovery

IT IS SO ORDERED.
August 28, 2024

L4ik*rw. ^C<tWALTER H. RICE, JUDGE
UNITED STATES DISTRICT COURT