CHRISTOPHER A. BOYKO, District Judge.
This matter comes before the Court on Defendants City of Rocky River ("Rocky River"), Donald Wagner ("Wagner"), Carl Gulas ("Gulas"), Andrew Bemer ("Bemer") and Michael O'Shea ("O'Shea") collective Motion to Dismiss Plaintiffs' Refiled Complaint pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 3). The Magistrate Judge recommends the Defendants' Motion be granted, in part, and denied, in part, as follows.
For the following reasons, the Court ACCEPTS and ADOPTS the Magistrate Judge's Report and Recommendation.
On September 8, 2009, Plaintiffs filed their Complaint against the Defendants in this Court. See Ghaster, et al. v. City of Rocky River, et al., Case No. 1:09-cv-2080 (2010). Defendants moved to dismiss the Complaint, and the Court found that the federal allegations failed to state a claim plausible on its face and dismissed those claims without prejudice. The Court refused to exercise supplemental jurisdiction over Plaintiffs' state law claims and dismissed those claims without prejudice.
On July 12, 2011, Plaintiffs initiated the present action against the Defendants. In their Complaint (Doc. 1), Plaintiffs assert against the individual Defendants, pursuant to 42 U.S.C. § 1983, causes of action for unreasonable searches and seizures in violation of the Fourth Amendment, a violation of Ghaster's free speech rights under the First Amendment, and malicious prosecution. Plaintiffs again assert liability against Rocky River pursuant to § 1983 and Monell. Defendants moved to dismiss Plaintiffs' claims pursuant to R. 12(b)(6). Plaintiffs filed a Response to Defendants' Motion to Dismiss (Doc. 7), and Defendants filed a Reply Brief in Support (Doc. 8).
In addition, the Plaintiffs filed Objections to the Magistrate Judge's Report and
The Complaint alleges that on September 6, 2007, Rocky River charged Ghaster with two counts of disorderly conduct for allegedly yelling "coarse and abusive language." According to Plaintiffs, a neighbor called Ghaster a "vulgar name for a female body part," to which Ghaster responded by calling her neighbor "fat boy" and "little dick." Complaint at 5. Ghaster was charged with two counts of misdemeanor disorderly conduct, based on the allegation that Ghaster's remarks had been heard by two neighbors. Plaintiffs allege that the prosecutor did not present the charge to a grand jury and that there was no probable cause to believe a crime had been committed because Ghaster's speech was protected by the First Amendment. Plaintiffs further allege that the prosecutor dismissed the charges on the day of trial.
Plaintiffs also allege that on September 11, 2007, Rocky River charged Ghaster with making false alarms and disorderly conduct, both misdemeanor offenses. Plaintiffs contend that Ghaster discovered from public records that the boyfriend of a neighbor had a police record and that there was a warrant out for his arrest. Ghaster told this to another neighbor, who in turn told additional neighbors "but embellished the story." Complaint at 6. According to Plaintiffs, police investigated this incident without talking to the neighbor to whom Ghaster first gave the information. Plaintiffs again allege that O'Shea did not present the charge to a grand jury, that there was no probable cause to believe a crime had been committed because Ghaster's speech was protected by the First Amendment, and that O'Shea dismissed both charges the day of trial.
During the period in which the above incidents occurred, Ghaster was tried and convicted of menacing by stalking, obstruction of official business, and intimidation of a witness. She was sentenced to and served more than six months in jail. Ghaster further alleges that Rocky River also charged her with other offenses that either resulted in acquittals or dismissals.
Ghaster alleges that after she was arrested, a John Doe Rocky River police officer approached E. Ghaster and told him that Ghaster had requested her cell phone and that she would be allowed to use the phone. E. Ghaster gave the officer the phone. According to Ghaster, Gulas then swore out a false affidavit, swearing that he had reason to believe that the phone contained evidence of a plan by Ghaster to violate a restraining order. Ghaster alleges that Gulas later admitted under oath that he had no reasonable cause to believe this. Plaintiffs also allege that Gulas stated in his affidavit that Ghaster had "on numerous occasions" sent faxes to the Rocky River Police, Rocky River's prosecutor's office, and the City of Rocky River about Laurie Rauser, even though he had no evidence that Ghaster had sent such faxes. Finally, Plaintiffs allege that Gulas stated in his affidavit that Plaintiff's cell phone had been given to police voluntarily, even though he knew it had been obtained under false pretenses. The allegedly false affidavit was used to obtain a search warrant, and the police searched Ghaster's phone. They did not find any evidence of wrongdoing. No affidavits or records were attached to the Complaint.
Ghaster further alleges that, in addition to initiating and continuing criminal prosecutions
Ghaster asserts that these acts violated her constitutional rights, including her right not be prosecuted without probable cause, her First Amendment right of free speech, and her Fourth Amendment right to be free of unreasonable searches and seizures. Ghaster alleges that Defendants wrongfully conspired to violate these rights.
Pursuant to Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(C), the District Court shall review de novo any finding or recommendation of the Magistrate Judge's Report and Recommendation that has been specifically objected to. Failure to make a timely objection to any aspect of the Report and Recommendation may waive the right to appellate review of the District Court's order. U.S. v. Walters, 638 F.2d 947, 950 (6th Cir.1981). The District Court need only review the Magistrate
Local Rule 72.3(b) reads in pertinent part:
In deciding a motion to dismiss under R. 12(b)(6), the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The court need not, however, accept conclusions of law as true:
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
According to the Sixth Circuit, the standard described in Twombly and Iqbal "obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Weisbarth v. Geauga Park Dist., 499 F.3d 538, 541 (6th Cir.2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir.2007)). That is, "Iqbal interpreted Twombly to require more concrete allegations only in those instances in which the complaint, on its face, does not otherwise set forth a plausible claim for relief." Weisbarth, 499 F.3d at 542. A complaint should be dismissed when it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
Plausibility requires more than facts which permit the mere possibility of liability. Rather, Plaintiff must plead sufficient facts to show "that the pleader is entitled to relief." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. A plaintiff who pleads facts that are "merely consistent with a defendant's liability... stops short of the line between possibility and plausibility of entitlement
Plaintiffs raise several objections to the Report and Recommended Decision of the Magistrate Judge.
Plaintiffs' First Objection to the Magistrate Judge's Report and Recommended Decision challenges dismissing the part of Count One dealing with the criminal charges against Pam Ghaster without probable cause. Plaintiffs assert that they plead sufficient facts to survive a Motion to Dismiss or, in the alternative, the Court should take judicial notice of the publicly accessible dockets from Plaintiffs' first lawsuit, which referred specifically to when and why Ghaster was arrested by Rocky River police officers. Plaintiffs' Objections are without merit.
As the Magistrate Judge correctly explains, "a false arrest claim under federal law requires a Plaintiff to prove that the arresting officer lacked probable cause to arrest the Plaintiff." Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir.2010) (citation omitted). Plaintiffs' Complaint "does not allege ... that she was arrested for her conduct on September 6, 2007, and September 11, 2007, in conjunction with the charged misdemeanors that were later dismissed before trial." (Report and Recommendation, Doc. 13) (emphasis in original). Rather, Count One deals with "the actions of Wagner and Gulas and John Doe police officers ... in participating in and/or allowing Plaintiff Pam Ghaster to be charged with criminal violations which were not supported by probable cause ..." (Report and Recommendation, Doc. 13) (emphasis added). Count One of the Complaint makes no mention of any arrest resulting from the charges for "criminal violations which were not supported by probable cause." Any arrest pertaining to Pamela Ghaster is not mentioned until Count Two in her claim for malicious prosecution, at which point it is unclear as to whether the mentioned arrests referred to the claims in Count Two.
Plaintiffs object to the dismissal, claiming that the Court can "take judicial notice of the publicly-accessible dockets for State v. Ghaster, Rocky River Municipal Court Case Nos. 07-CRB-2036 and 07-CRB-1992. Allegedly, these dockets contain sufficient public information that shows Ghaster was "directly and solely" arrested for her actions on September 6 and September 11, 2007.
Plaintiffs' reliance on the doctrine of judicial notice is misplaced. "A court may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed R. Evid. 201(b). "Public record and government documents are generally considered `not to be subject to reasonable dispute.'" U.S. ex rel. Dingle v. BioPort Corp., 270 F.Supp.2d 968, 972 (W.D.Mich.2002) (citing Grimes v. Navigant Consulting, Inc., 185 F.Supp.2d 906, 913 (N.D.Ill.2002) (taking judicial notice of stock prices posted on a website); Cali v. E. Coast Aviation Servs., Ltd., 178 F.Supp.2d 276, 287 (E.D.N.Y.2001) (taking judicial notice of documents from Pennsylvania state agencies and Federal Aviation Administration)). Plaintiffs are correct in asserting that a court docket is the type of public document that is not reasonably open to dispute.
In the present matter, Plaintiffs failed to attach the particular public documents to their Complaint, or refer to the same in the Complaint. Additionally, the state court dockets were not mentioned until Plaintiffs' Objections to the Magistrate's Report and Recommendation, so Plaintiffs could not assert that such documents were "referred to in the complaint and central to the claims contained therein." Id. Judicial notice should not be used as an end-around for federal pleading requirements, and must not be observed here. The Court finds that the Plaintiffs' First Objection is without merit.
Plaintiffs' Second Objection to the Magistrate Judge's Report and Recommended Decision is that the Magistrate Judge incorrectly determined that the Complaint did not plead enough factual specificity to show that Pamela Ghaster "suffered a deprivation of ... liberty apart from any initial arrest that may have occurred on some charges." (Report and Recommendation at 17, Doc. 3). Plaintiffs claim that the Complaint did enough to state such a deprivation or, in the alternative, the Judge could take judicial notice of the Rocky River Municipal Court rules, as well as the Court docket, to determine that Ghaster had suffered a deprivation of liberty. Plaintiffs' Objections are not well taken, and the Magistrate's Judge's Report and Recommendation, with regard to the count of malicious prosecution, is adopted.
The Sixth Circuit recognizes a constitutional claim of malicious prosecution under the Fourth Amendment, encompassing wrongful investigation, prosecution, conviction, and incarceration. Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir.2006). "The tort of malicious prosecution is `entirely distinct' from that of false arrest, as the malicious prosecution tort `remedies detention accompanied not by the absence of legal process, but by wrongful institution of legal process.'" Sykes v. Anderson, 625 F.3d 294, 309 (6th Cir.2010) (quoting Wallace v. Kato, 549 U.S. 384, 390, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)). The Sixth Circuit has determined that the federal cause of action for malicious prosecution has four elements: (1) the Defendant made, influenced, or participated in a decision to prosecute the Plaintiff; (2) there was a lack of probable cause for the prosecution; (3) as a result of a legal proceeding, the Plaintiff suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding was resolved in the Plaintiff's favor. Sykes, 625 F.3d at 309.
Plaintiffs fail to allege sufficient facts that would make it plausible that Ghaster suffered a deprivation of her liberty apart from any initial arrest that may have occurred. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
Plaintiffs would have the Court look to the Rules of the Rocky River Municipal Court, which would reveal that "any criminal defendant who is charged with a crime must appear at an arraignment, post bond, appear at pre-trials, and must be subject to whatever other pre-trial restrictions, including travel restrictions, the Court places upon the defendant when police and/or prosecutor file misdemeanor charges." (Plaintiffs Objections, Doc. 14 at 6). In the alternative, Plaintiffs would have the Court look at the municipal court docket to show that Ghaster was required to do the aforementioned activities, which could plausibly constitute a deprivation of her liberty beyond her initial seizure. However, as previously stated, the Court is not compelled to take judicial notice of documents that are not attached to, nor mentioned and explicitly relied upon, in the Complaint. Such a holding would create an end-around of the pleading requirements set out in Twombly and Iqbal. The Court holds that the Plaintiffs' Second Objection is without merit.
Plaintiffs' Third Objection to the Magistrate Judge's Report and Recommendation is that the Magistrate Judge incorrectly determined that the Complaint "[did] not allege any acts of Wagner, Gulas, or a John Doe police officer contributing to Ghaster's being charged as a result of the events of September 6, 2007 and September 11, 2007." (Report and Recommendation, at 20). Plaintiffs assert that requiring her to plead with more factual specificity at this stage would place an unfair burden upon them to provide the detail or have the case dismissed. Plaintiffs' Objection is without merit.
In order to state a claim of official retaliation for the exercise of First Amendment rights, "a plaintiff must show that (1) he was participating in a constitutionally protected activity; (2) Defendant's action injured Plaintiff in a way likely to chill a person of ordinary firmness from further participation in that activity; and (3) in part, Plaintiff's constitutionally protected activity motivated Defendant's adverse action." Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir.2007). For claims of retaliatory inducement of prosecution, the Supreme Court has added a fourth element: a Plaintiff must also plead and prove that the prosecution was not supported by probable cause. Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006).
However, Plaintiffs failed to allege any particular facts that would make it plausible that Wagner, Gulas, or any John Doe police officer violated any of Ghaster's First Amendment rights. Rather, the Complaint states legal conclusions that, as previously stated, are not sufficient to survive a motion to dismiss.
Plaintiffs' claim that "naming the people (or the entity) responsible for the criminal charges that [P]laintiff alleges" would be
Plaintiffs' Fourth Objection to the Magistrate Judge's Report and Recommendation is that the Magistrate Judge erred when the Judge dismissed Plaintiffs' Monell claims after dismissing their corresponding unreasonable search and seizure, malicious prosecution, and First Amendment claims. Plaintiffs believe that even if the claims against individual Defendants are dismissed, the acts of those Defendants should still remain as evidence of a Monell claim against Rocky River. However, Plaintiffs misinterpret the law of Monell and its progeny, and their Objection is not well-taken.
A political subdivision is liable for the acts of its employees under § 1983 only for injuries that result from an official policy or from governmental custom, even if that custom has not been formally approved. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "Respondeat superior will not attach under § 1983." City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). As "governmental bodies can act only through natural persons, governments should be held responsible when, and only when, their official policies cause their employees to violate another person's constitutional rights." City of St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). A suit against an employee of a political subdivision, in the employee's official capacity, is treated as a suit against the political subdivision. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).
The reasoning behind Plaintiffs' Objection is unclear. The Magistrate Judge, in her Report and Recommendation, said that the Monell claim remained against Rocky River with relation to the plausibly unconstitutional seizure of Ghaster's cell phone by a police officer, and for the plausibly unlawful search resulting from Gulas's allegedly false statements to secure a warrant. All other Monell claims fell away upon the Magistrate Judge's determination that Plaintiffs malicious prosecution, First Amendment, and Fourth Amendment unlawful arrest claims were determined to be insufficiently plead. The Magistrate Judge's reasoning is clear: "[A] political subdivision is liable only for the unconstitutional injuries caused by its employees pursuant to the subdivision's policy or custom." (R & R, at 24). Since the dismissed claims did not plausibly state any constitutional violation, those claims could not support a Monell claim against a municipality.
Plaintiffs' Objection fails to recognize this point. Plaintiffs believe that these acts should remain as evidence of constitutional violations on behalf of Rocky River pursuant to Monell. However, evidence of constitutional violations, pursuant to Monell, at the pleading stage must consist of plausible constitutional violations by officers of the municipality that directly injure the Plaintiff. Since these claims were dismissed, they cannot support a finding of liability pursuant to Monell against Rocky River. Plaintiffs' Fourth Objection is without merit.
Defendants Rocky River and Carl Gulas raise three Objections to the Magistrate Judge's Report and Recommendation, but this Court only needs to deal with one of them.
Defendants' First Objection to the Magistrate Judge's Report and Recommendation is that the Magistrate Judge incorrectly determined that the Plaintiffs sufficiently plead a claim for unreasonable search and seizure with regard to Gulas's allegedly false statements made in obtaining a warrant.
Defendants attempt to rely on an affidavit that was not attached to the pleadings to show that Plaintiffs were misreading Gulas's testimony with regard to obtaining the warrant. However, as previously noted, in order for the Court to take judicial notice of an affidavit or document, it has to either be attached to a complaint or motion or referred to and relied on explicitly in the complaint or motion. Rondigo, 641 F.3d 673. Here, the first explicit mention of the affidavit was in the objections, and therefore, cannot be considered on a motion to dismiss. Defendants' Objection is without merit, and Plaintiffs have sufficiently plead a claim for unreasonable search and seizure with regard to Gulas's obtaining a warrant using false testimony.
Since Plaintiffs did plead a sufficient claim against Gulas and the John Doe police officers, the Monell claim against the City of Rocky River remains. Defendants' second Objection is without merit. Defendant's third Objection to qualified immunity is also without merit for the same reason.
Neither party objected to the Magistrate Judge's application of law with regard to qualified immunity. The parties' object to the Magistrate Judge's ruling on qualified immunity solely on the basis of whether or not a party remains in the litigation. All objections for qualified immunity are without merit since Plaintiffs claims against all parties other than Gulas and John Doe Police Officers are without merit and the Defendants did not challenge the legal analysis of Gulas' and John Doe Police Officers' qualified immunity analysis.
This Court adopts Magistrate Judge's Report and Recommendation in whole.
NANCY A. VECCHIARELLI, United States Magistrate Judge.
This case is before the magistrate judge on referral. Before the court is the motion of defendants City of Rocky River ("Rocky River"), Donald Wagner ("Wagner"), Carl Gulas ("Gulas"), Andrew Bemer ("Bemer"), and Michael O'Shea ("O'Shea") to dismiss plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(6). Doc. No. 6. Plaintiffs, Pamela A. Ghaster ("Ghaster") and Earl Ghaster ("E. Ghaster"), oppose defendants' motion. Doc. No. 7. For the reasons given below, the magistrate judge recommends that defendants' motion be (1) GRANTED as to count one, alleging a wrongful search and seizure (property) in violation of the Fourth
The complaint alleges that on September 6, 2007, Rocky River charged Ghaster with two counts of disorderly conduct for allegedly yelling "coarse and abusive language." According to plaintiffs, a neighbor called Ghaster "a vulgar name for a female body part," to which Ghaster responded by calling her neighbor "fat boy" and "little dick." Complaint at 5. Ghaster was charged with two counts of misdemeanor disorderly conduct, based on the allegation that Ghaster's remarks had been heard by two neighbors. Plaintiffs allege that the prosecutor did not present the charge to a grand jury and that there was no probable cause to believe a crime had been committed because Ghaster's speech was protected by the First Amendment. Plaintiffs further allege that the prosecutor dismissed the charges on the day of trial.
Plaintiffs also allege that on September 11, 2007, Rocky River charged Ghaster with making false alarms and disorderly conduct, both misdemeanor offenses. Plaintiffs contend that Ghaster discovered from public records that the boyfriend of a neighbor had a police record and that there was an outstanding warrant for his arrest. Ghaster told this to another neighbor, who in turn told additional neighbors "but embellished the story." Complaint at 6. According to plaintiffs, police investigated this incident without talking to the neighbor to whom Ghaster first gave the information. Plaintiffs again allege that O'Shea did not present the charge to a grand jury, that there was no probable cause to believe a crime had been committed because Ghaster's speech was protected by the First Amendment, and that O'Shea dismissed both charges on the day of trial.
During the period in which the above incidents occurred, Ghaster was tried and convicted of menacing by stalking, obstruction of official business, and intimidation of a witness. She was sentenced to and served more than six months' in jail. Ghaster further alleges that Rocky River also charged her with other offenses that either resulted in acquittals or dismissals.
Ghaster alleges that after she was arrested, a Rocky River police officer approached E. Ghaster and told him that Ghaster had requested her cell phone and that she would be allowed to use the phone. E. Ghaster gave the officer the phone. According to Ghaster, Gulas then swore out a false affidavit, swearing that he had reason to believe that the phone contained evidence of a plan by Ghaster to
Ghaster further alleges that in addition to initiating and continuing criminal prosecutions against her without probable cause, one or more defendants also left documents containing Ghaster's private information, including her social security number and information documenting her work as an informant for other law enforcement agencies, in a box of records made available to the public for inspection; and published in public court records private law enforcement records regarding Ghaster. In addition, Ghaster alleges the following:
Ghaster asserts that these acts violated her constitutional rights, including her right to be prosecuted only upon probable cause, her First Amendment right to free
On September 8, 2009, plaintiffs filed a complaint against the defendants in this court. See Ghaster, et al. v. City of Rocky River, et al., Case No. 1:09-cv-2080 (2010). The complaint asserted against the individual defendants pursuant to 42 U.S.C. § 1983 ("§ 1983") causes of action for unreasonable searches and seizures in violation of the Fourth Amendment, a violation of Ghaster's free speech rights under the First Amendment, state and federal actions for malicious prosecution, and state law actions for invasion of privacy, abuse of process, intentional infliction of emotional distress, and civil conspiracy. Plaintiffs also asserted liability against Rocky River pursuant to § 1983 and Monell.
Defendants moved to dismiss the complaint. On July 13, 2010, the court found that the federal allegations failed to state a claim plausible on its face and dismissed those claims without prejudice. The court declined to exercise supplemental jurisdiction over the state claims and dismissed plaintiffs' claims without prejudice.
On July 12, 2011, plaintiffs initiated the present action against the defendants. In their complaint, plaintiffs assert against the individual defendants, pursuant to § 1983, causes of action for unreasonable searches and seizures in violation of the Fourth Amendment, a violation of Ghaster's free speech rights under the First Amendment, and malicious prosecution. Plaintiffs again assert liability against Rocky River pursuant to § 1983 and Monell. Defendants now move to dismiss plaintiffs' claims pursuant to R. 12(b)(6).
In deciding a motion to dismiss under R. 12(b)(6), the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The court need not, however, accept conclusions of law as true:
Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). According to the Sixth Circuit, the standard described in Twombly and Iqbal "obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Weisbarth v. Geauga Park District, 499 F.3d 538, 541 (6th Cir.2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007)). That is, "Iqbal interpreted Twombly to require more concrete allegations only in those instances in which the complaint, on its face, does not otherwise set forth a plausible claim for relief." Weisbarth, 499 F.3d at 542. A complaint should be dismissed when it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. 1955.
Plausibility requires more than facts which permit the mere possibility of liability. Rather, plaintiff must plead sufficient facts to show "that the pleader is entitled to relief." Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950 (internal quotation marks omitted). A plaintiff who pleads facts that are "merely consistent with a defendant's liability... stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks omitted).
Plaintiffs bring their federal claims pursuant to § 1983. Section 1983 allows individuals to "interpose the federal courts between the States and the people, as guardians of the people's federal rights — to protect the people from unconstitutional action under color of state law." Mitchum v. Foster, 407 U.S. 225, 242, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). "To state a claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed favorably, establish (1) the deprivation of a right secured by the Constitution or laws of the United States (2) caused by a person acting under the color of state law." Miller v. Sanilac County, 606 F.3d 240, 247 (6th Cir.2010) (quoting Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006)). Defendants do not dispute that the individual defendants were acting under color of state law.
The court will examine in turn the parties' arguments as to the dismissal of each of the four counts of the complaint.
Count one of the complaint alleges that the acts of Wagner, Gulas, and John Doe
Defendants argue that this count should be dismissed in its entirety because Ghaster does not sufficiently describe the criminal violations with which she was charged, does not describe those charges which lacked probable cause, fails to recite the proper elements of a Fourth Amendment violation, and fails to describe with sufficient specificity the circumstances of acquiring the cell phone or the nature of the falsity in Gulas's affidavit. Plaintiffs respond that the complaint sufficiently alleges lack of probable cause for the charges against Ghaster on two counts of disorderly conduct on September 6, 2007 and one count of making false alarms and one count of disorderly conduct on September 11, 2007. Plaintiffs also respond that the complaint pleads sufficient facts to make an unreasonable seizure plausible with respect to the alleged seizure of Ghaster's cell phone. In their reply, defendants assert that Ghaster was arrested for crimes that were based on probable cause and which resulted in convictions. Reply, Doc. No. 8, p. 3. They state: "Plaintiffs have not alleged that the arrest was triggered only as a result of alleged criminal conduct which was unsupported by probable cause...." Id. (emphasis added).
Defendants cite Jones v. Lewis, 874 F.2d 1125, 1134 (6th Cir.1989), in support of the proposition that plaintiff has the burden of alleging all the elements of a prima facie case of a violation of the Fourth Amendment. The citation to Jones references the concurring opinion in a case adjudicated in part upon summary judgment and in part upon a jury verdict. Jones is irrelevant to the standard for properly pleading a cause of action in a complaint. In addition, defendants' position has explicitly been rejected by the Supreme Court. In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), the Court observed that a prima facie case is an evidentiary standard, not a pleading requirement. "When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id. at 511, 122 S.Ct. 992 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). The proper standard, according to Twombly, is whether the complaint alleges sufficient facts to state a claim to relief that is plausible on its face, not whether the complaint pleads the elements of a prima facie case.
"A false arrest claim under federal law requires a plaintiff to prove that the arresting officer lacked probable cause to arrest the plaintiff." Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir.2010) (citation omitted). "Probable cause to make an arrest exists if the facts and circumstances within the arresting officer's knowledge `were sufficient to warrant a prudent man in believing that the [arrestee] had committed or was committing an offense.'" Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir.1995) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)) (alteration in original). In the case of Ghaster's conduct on September 6, 2007 and September 11, 2007, plaintiffs
Plaintiffs also allege that her Fourth Amendment right to be secure in her effects was violated when an unnamed defendant police officer seized her phone under false pretenses. Whether a search or seizure of property upon consent is valid depends on whether the consent was voluntary. A court determines the degree to which consent is voluntary "under the `totality of the circumstances, with the government bearing the burden of proof.' The `government must show that there was no duress or coercion, express or implied, that the consent was unequivocal and specific, and that it was freely and intelligently given.'" United States v. McCurdy, 40 F.3d 1111, 1119 (10th Cir. 1994) (citations omitted); see also United States v. Basher, 629 F.3d 1161, 1167-68 (9th Cir.2011); Simmons v. Bomar, 349 F.2d 365, 366 (1965).
In the present case, plaintiffs allege that the John Doe police officer obtained Ghaster's cell phone by stating falsely that Ghaster had requested the phone and would be allowed to use it in jail. These alleged facts are sufficient to make plausible that E. Ghaster's consent to the John Doe police officer's obtaining the phone was not intelligently given because it was based upon false statements of fact.
Finally, plaintiffs allege a wrongful search of Ghaster's cell phone based upon Gulas's false statements in his affidavit in support of the search warrant. A plaintiff alleging a wrongful search in violation of the Fourth Amendment must demonstrate that defendants failed to observe the applicable requirements for probable cause and a warrant and that plaintiff had a legitimate expectation of privacy in the place or thing searched. See United States v. Barry, 673 F.2d 912, 916-17 (6th Cir.1982). Where there is a search warrant issued by a neutral and detached magistrate, indicating that there is probable cause for the search, officers who rely on that warrant and its finding of
In the present case, plaintiffs allege that a John Doe police officer obtained Ghaster's cell phone under false pretenses and then obtained a warrant to search the phone based on a false affidavit by Gulas. Specifically, plaintiffs allege that Gulas made the following false statements in his affidavit:
The Sixth Circuit has granted dismissal of an allegation of a search warrant obtained by a false affidavit when the plaintiffs "failed to identify any statements in the affidavit they believed were false; failed to identify which state officials, if any, stated a deliberate falsehood or showed reckless disregard for the truth with respect to the application for the warrant; and failed to show how any allegedly false statements were material to a finding of probable cause." BPNC, Inc. v. Taft, 147 Fed. Appx. 525, 530 (6th Cir.2005) (citing Vakilian v. Shaw, 335 F.3d 509, 517 (6th Cir. 2003)). While plaintiffs fail to show how false statements regarding the faxes were material to a finding of probable cause, their complaint identifies both the individual allegedly making the false statements and the nature of those statements. Gulas's assertion that there was probable cause to believe that the phone contained evidence of a plan to violate a restraining order plausibly satisfies the materiality requirement.
Defendants argue that plaintiffs failed to plead that Ghaster had a legitimate expectation of privacy in her phone, thus failing to plead a prima facie case. As already noted, Ghaster is not required to plead a prima facie case, only a plausible one. As the search of cell phones, in this court's experience, is often subject to search warrants, the court concludes that it is at least plausible that Ghaster had a legitimate expectation of privacy in her phone.
In sum, plaintiffs plead a cause of action against Gulas for a violation of Ghaster's Fourth Amendment right to be free of unreasonable searches that is plausible on its face. Defendants' arguments to the contrary are not well-taken. Ghaster does not, however, plead a plausible cause of action for a wrongful search in violation of the Fourth Amendment against any other defendant and does not plead a plausible cause of action for a wrongful seizure in violation of the Fourth Amendment against any defendant.
Plaintiffs allege that Wagner, Gulas, Bemer, O'Shea, and John Doe Rocky River police officers are liable for malicious prosecution. According to plaintiffs, these individual defendants were responsible for making, influencing, or participating in the decision to prosecute her without probable cause upon three counts of disorderly conduct, a count of spreading false rumors, and two counts of violating a protective order. According to Ghaster, all these charges were dropped prior to trial or resulted in an acquittal. Defendants argue that plaintiffs have failed to state a cause of action for malicious prosecution because they fail to allege a loss of liberty necessary to a cause of action for malicious prosecution and fail to indicate why the charges against Ghaster lacked probable cause.
The Sixth Circuit recognizes a constitutional claim of malicious prosecution under the Fourth Amendment, encompassing wrongful investigation, prosecution, conviction, and incarceration. Barnes v. Wright, 449 F.3d 709, 715-16 (6th Cir. 2006). "The `tort of malicious prosecution' is `entirely distinct' from that of false arrest, as the malicious-prosecution tort `remedies detention accompanied not by absence of legal process, but by wrongful institution of legal process.'" Sykes v. Anderson, 625 F.3d 294, 309 (6th Cir.2010) (quoting Wallace v. Kato, 549 U.S. 384, 390, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007)). The Sixth Circuit has determined that the federal cause of action for malicious prosecution has four elements: (1) the defendant made, influenced, or participated in a decision to prosecute the plaintiff; (2) there was a lack of probable cause for the prosecution; (3) as a result of a legal proceeding, the plaintiff suffered a deprivation of liberty apart from the initial seizure; and (4) the criminal proceeding was resolved in the plaintiff's favor. Sykes, 625 F.3d at 309. Probable cause
In the present case, plaintiffs allege that Wagner, Gulas, Bemer, O'Shea, and John Doe Rocky River police officers arrested and charged Ghaster upon three counts of disorderly conduct, a count of spreading false rumors, and two counts of violating a protective order. Plaintiffs do not allege, however, any facts which would make plausible that Ghaster suffered a deprivation of her liberty apart from any initial arrest that may have occurred on some charges. Plaintiffs do not allege that Ghaster was required to post bond, that the court restricted her travel, that she had to report to a control officer, or any other restriction that would consist of a deprivation of liberty within federal Fourth Amendment jurisprudence. See Johnson v. City of Cincinnati, 310 F.3d 484, 491-93 (6th Cir.2002) (discussing the restrictions which constitute a deprivation of liberty under the Fourth Amendment). Absent any allegation in the complaint making plausible a restriction of Ghaster's liberty beyond an initial arrest, Ghaster fails to plead plausible a cause of action for malicious prosecution.
Count three of the complaint alleges that Rocky River, Wagner, Gulas, and individual John Doe police officers violated Ghaster's right to free speech, as protected by the First Amendment, by charging her with criminal violations without probable cause for Ghaster's calling a neighbor "fat boy" and "little dick." Defendants contend that plaintiffs fail to plead sufficient facts to demonstrate that Ghaster's speech was protected or that the action taken against Ghaster was sufficient to deter a person of ordinary firmness from engaging in the protected activity.
"[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out." Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). In general, to state a claim of official retaliation for the exercise of First Amendment rights, "a plaintiff must show that (1) he was participating in a constitutionally protected activity; (2) defendant's action injured plaintiff in a way likely to chill a person of ordinary firmness from further participation in that activity; and (3) in part, plaintiff's constitutionally protected activity motivated defendant's adverse action." Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807, 821 (6th Cir.2007) (quoting Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir.1998)) (internal quotation marks omitted). For claims of retaliatory inducement of prosecution, the Supreme Court has added a fourth element: a plaintiff must also plead and prove that the prosecution was not supported by probable cause. Hartman, 547 U.S. at 265-66, 126 S.Ct. 1695; see also Barnes v. Wright, 449 F.3d 709, 719 (6th Cir.2006). "Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added costs, it makes sense to require such a showing as an element of a plaintiff's case, and we hold that it must be pleaded and proven." Hartman, 547 U.S. at 265-66, 126 S.Ct. 1695.
Defendants' arguments that plaintiffs fail to plead sufficient facts to demonstrate that Ghaster's speech was protected or that the action taken against Ghaster was sufficient to deter a person of ordinary firmness from engaging in the protected activity are entirely without merit. Plaintiffs are under no obligation to plead facts which would make plausible a contention that their speech is protected under the First Amendment. "Fighting words" are an exception to First Amendment protection. That is, First Amendment protection for speech is presumed, and it is defendants' burden to prove otherwise. Thus, state laws, ordinances, and injunctions which criminalize certain forms of speech are presumed invalid, and a state must carry a heavy burden to prove that they are not. See, e.g., Organization for a Better Austin v. Keefe, 402 U.S. 415, 418-19, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). Thus, defendants' argument that plaintiffs must plead facts which would make plausible that certain speech is protected by the First Amendment is not well-taken.
Defendants' argument that plaintiffs must plead facts sufficient to make plausible that the threat of criminal prosecution is sufficient to deter a person of ordinary firmness from engaging in certain speech is without merit.
Where plaintiffs' complaint falls short, however, is in connecting the allegations of the complaint with particular defendants. The complaint names Rocky River, Wagner, Gulas, and individual John Doe police officers as allegedly violating Ghaster's First Amendment rights.
The complaint does not allege any particular acts of Wagner, Gulas, or a John Doe police officer that contributed to Ghaster's being charged as a result of the events of September 6, 2007 and September 11, 2007. As already noted, the complaint alleges no acts by Wagner whatsoever and is apparently proceeding against him upon the prohibited theory of respondeat superior. The complaint also fails to allege any acts by Gulas related to the charges against Ghaster arising from the events of September 6, 2007 and September 11, 2007. Plaintiffs even fail to allege any acts by a Rocky River police officer in connection with the charges against Ghaster arising from events of September 6, 2007 and September 11, 2007. In short, plaintiffs fail to allege any facts which would make plausible the allegation that Wagner, Gulas, or a John Doe policeman influenced or participated in the decision to charge Ghaster in retaliation for her alleged exercise of her First Amendment rights. For this reason, plaintiffs fail to plead sufficient facts to make plausible a cause of action for a violation of her First Amendment rights against any named individual defendant. Ghaster's cause of action against Rocky River is discussed below.
Count four of the complaint alleges that Rocky River instituted a policy of harassing the Ghasters. Defendants argue that plaintiffs plead insufficient facts to state a claim upon which relief can be granted.
A political subdivision is liable for the acts of its employees under § 1983 only for injuries that result from an official policy or from governmental custom, even if that custom has not been formally approved. Monell, 436 U.S. at 690-91, 98 S.Ct. 2018 (1978); Molton v. City of Cleveland, 839 F.2d 240, 243-44 (6th Cir.1988). "Respondent superior or vicarious liability will not attach under § 1983." City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). As "governmental bodies can act only through natural persons, ... governments should be held responsible when, and only when, their official policies cause their employees to violate another person's constitutional rights." City of St. Louis v. Praprotnik, 485 U.S. 112, 122, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). A suit against an employee of a political subdivision in the employee's official capacity is treated as a suit against the political subdivision. See Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).
Count four of the complaint alleges the following:
Complaint at 15.
Defendants' arguments that count four of the complaint is insufficiently pleaded do not fairly address the allegations in the complaint. Defendants argue as follows:
Motion at 7.
Defendants' contentions that plaintiffs "fail to identify which `policy and practice' of the City of Rocky River was
Nevertheless, as has already been noted, a political subdivision is liable only for the unconstitutional injuries caused by its employees pursuant to the subdivision's policy or custom. Monell, 436 U.S. at 690-91, 98 S.Ct. 2018 (1978); Praprotnik, 485 U.S. at 122, 108 S.Ct. 915. Rocky River is liable to plaintiffs, therefore, only for constitutional injuries to plaintiffs caused by its employees. Plaintiffs state a plausible claim alleging a constitutional injury caused by an employee of Rocky River only for the seizure of Ghaster's cell phone by a John Doe police officer and for an unlawful search resulting from Gulas's allegedly false statements to secure a warrant to search the cell phone. Consequently, those claims alone remain against Rocky River pursuant to Monell.
The complaint fails to plead sufficient facts to make plaintiffs' claims plausible with respect to the claim in count one for a wrongful search in violation of the Fourth Amendment as to all defendants except a John Doe police officer and Gulas, the entirety of the claim in count one for a wrongful seizure in violation of the Fourth Amendment, the entirety of count two's claim for malicious prosecution in violation of the Fourth Amendment, and count three's claim for a violation of Ghaster's First Amendment rights with respect to all individual defendants. Defendants' arguments as to the remainder of the claims in the complaint are not well-taken.
The individual defendants assert that they are entitled to qualified immunity against plaintiffs' claims arising under § 1983.
The defense of qualified immunity shields government officials performing discretionary functions where their "conduct does not violate clearly established statutory or constitutional rights which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396
The two-part test for qualified immunity asks (1) whether the facts that a plaintiff has alleged a violation of a constitutional right; and (2) if so, whether the right at issue was clearly established at the time of the defendants' alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232-33, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The court may consider the two parts of the test in any order it deems appropriate, and the court may conclude its analysis upon answering either part of the test in the negative. Id. at 239-41, 129 S.Ct. 808. In determining whether the facts alleged make out a violation of a constitutional right, a court must ask whether, viewed in the light most favorable to plaintiff, the alleged facts show the officer violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). In determining whether the right at issue was clearly established at the time of the defendants' alleged misconduct, "[t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151.
In the present case, plaintiffs allege that an unnamed Rocky River police officer obtained Ghaster's cell phone from her husband under false pretenses by stating that Ghaster had requested the phone and would be allowed to use it while in jail. Plaintiffs also allege that Gulas then swore out a false affidavit, stating that he had reason to believe that the phone contained evidence of a plan by Ghaster to violate a restraining order. Plaintiffs further allege that Gulas later admitted under oath that he had no reasonable cause to believe this. Plaintiffs also allege that Gulas stated in his affidavit that Ghaster had "on numerous occasions" sent faxes to the Rocky River Police, Rocky River Prosecutor's office, and the City of Rocky River about Laurie Rauser, even though he had no evidence that Ghaster had sent such faxes. Finally, plaintiffs allege that Gulas stated in his affidavit that plaintiff's cell phone had been given to police voluntarily even though he knew that it had been obtained under false pretenses. The allegedly false affidavit was used to obtain a search warrant, and the police searched Ghaster's phone.
It has been the law in the Sixth Circuit at least since 1995 that a waiver of Fourth Amendment rights against seizure must be knowing and voluntary. See United States v. Buchanon, 72 F.3d 1217 (6th Cir.1995) (finding that defendants had not knowingly and voluntarily waived their Fourth Amendment rights upon the seizure of their persons and a truck). No reasonable police officer could have believed that falsely telling the owner
Likewise, the Sixth Circuit found in 1985 that an action pursuant to § 1983 lies against a police officer who obtains an invalid search warrant by making in his affidavit material false statements either knowingly or in reckless disregard for the truth. Donta v. Hooper, 774 F.2d 716, 718 (6th Cir. 1985) (relying on Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)); see also Hill v. McIntyre, 884 F.2d 271, 275 (6th Cir.1989). In 2003, the Sixth Circuit described such liability as "well-established." Johnson v. Hayden, 67 Fed.Appx. 319, 323-24 (6th Cir.2003) (citing Ahlers v. Schebil, 188 F.3d 365, 373 (6th Cir.1999), and Yancey v. Carroll County, 876 F.2d 1238, 1243 (6th Cir.1989)). Thus, under the facts as pleaded in the complaint, plaintiffs have alleged a violation of the Fourth Amendment and the right at issue was clearly established at the time of Gulas's alleged misconduct. Consequently, plaintiffs have alleged sufficient facts to overcome Gulas's assertion of qualified immunity at the stage of a motion to dismiss.
For the reasons set forth above, defendants' motion to dismiss should be disposed of as follows:
