the bar still low plaintiff has essentially alleged facts in the complaint although there is boilerplate language which twamley in a ball does not state that a complaint cannot have there are facts that create a plausible inference that plaintiff was essentially arrested by defendants who were charged by defendants without any type of probable cause based in bad faith on an improper motive that it was  a fraudulent arrest then jasmine harris file a formal complaint against your client for whom she did your honor but we allege that she only did so after calling defendant luke ereli who was her lover at the time we alleged in asking him what to do and that that defendant luke ereli then called our plaintiff miss bickerstaff the rating her on the phone for contacting miss explain why she was contacting miss harris who she worked for as a private investigator and only after that point the defendant luke ereli then we believe we alleged in concert with  that we we allege that mr luker reli and the other defendants essentially withheld that information from the prosecutor and the grand jury that they presented a case that they knew there was no probable cause to support that was fraudulent and they did not but the one who presented the testimony of the grand jury was officer mcduffie was a direct she was the grand jury liaison we allege specific text messages between defendant mcduffie that explained that the plaintiff's was a private investigator i'm creating the inference that she's poking around in two investigations that were made prior by defendant ereli and that defendant who correctly left miss mcduffee you know what's the significance of bickerstaff being a private investigator and i'm not saying that well i recall private investigators commit crimes but this is exactly the kind of thing that police would be worried about wouldn't her complain essentially alleges that miss bickerstaff as a private investigator that the sole motive to charge her with these crimes was to prevent her from finding out about corelli's inappropriate sexual relationship with miss harris and thereby potentially finding out about other relationships that he had with other victims of crime as well as other  from days before the grand jury proceeding and then there it says on april for two thousand and twelve he said ok thank you if they know bill it don't worry about it and then ereli indicated on a note in the file that he did not want this matter to be presented to the grand jury blessings contrary to your position i mean your position is all they want to look around they wanted your client indicted and back sounds like now he didn't want her and  i believe that creates a plausible inference that luke ereli although he didn't want her indicted he thought charging her would be sufficient to prevent her from talking with miss harris further says if they know  worry about well no bill means no indictment well because you just what's the difference between charging an indictment indictment is the charge correct i mean why would answer that with why would a police officer who had reason to believe that a crime was committed say i don't care if she's charged or not i mean i think that creates an inference that mr mcduffee knew that there was no probable cause to support that maybe of that or like that he says here's the information if it turns out it's not good enough for an indictment it's ok with me you know again he might have been lying in it but that is what your honor i think the echoes more to the weight of the evidence than it does at the pleading stage whether or not you know what interpretation or what weight you give that evidence i think we've created a plausible inference to move forward in to be able to conduct discovery and figure out exactly you know what was going on there that we don't have access to the arrest file or to the grand jury proceedings prior to going through discovery so there's no way of knowing whether or not or or  direct in the receipt of the criminal accusation against her and how do you overcome what have you done in your complaint to overcome the presumption of probable cause recorder and i'd like to address the district court cites a nine reported out of the northern district called diver v dobson which of course is not binding on this court and i think that if one is distinguishable into if we were to apply diver to the facts in this case it would create a very bad precedent and i think the diver case essentially involved a claim where there was a mishandling of evidence there was no evidence to suggest that the officers in that case had an improper purpose that they were acting  bad faith or anything like that we have alleged that here and if you're going to allow an officer who essentially is fraudulent lead charging a plaintiff to then as long as he does a good job of hiding that information from the grand jury of the prosecutor he can then hide behind that and item and there are no consequences roy killen's here though sounds to me help me here is that most of what you're saying is kind of not presenting the grand jury with impeaching material or or motivation material as opposed to that something affirmatively was told to the grand jury that was untrue well i think front when i when i used the word fraudulent i think what i'm i'm suggesting is that he did not disclose to the grand jury or the prosecutor and what we've alleged is his sole motive for making the but we believe that we created an inference that luke irks me mcduffie at the very least knew that this was a bogus arrest that there was not probable cause to support it now how are we to know you know what exactly she knew about his improper relationships with victims of crimes we we did not a ledge that in the complaint but we believe it creates an inference i guess help me here in terms of the motivation versus the fact or the charge of the charge is somebody broke the windows in my tenants house now the reason i'm pressing this is i'm actually running a crack house in that tenants house and i don't want you know people breaking windows and looking in but can i still charge him with with the destruction of property well i think breaking a window in and in your client was investigating for a client charged with allegedly in the complaint that initially she did allow our client to speak with there in fact she even returned a phone call from our client to speak with her and then after its discretion and regarding regarding the amount of time provided for your client to conduct discovery before were terminated period and ruled on the motion for summ judgment but you don't actually brief in your you don't actually discuss in your your brief the running its nature of the summ judgment by making it in your brief what would you say about that well i would say that want to only if you claims against luke ereli and no other defendants made it even through to summary judgment but i would also say that that this school that we had asked the corps twice for additional time for discovery after the ruling on on the motions to dismiss the district court dismiss the case against the gravity on april second  and discovery close on april tenth giving us eight days we did not respond to the motion for summary judgment because at that time we were really in between a walk and a hard place we asked the judge on a fifty four b motion if we could appeal the rulings to dismiss right then and there he deny that so we were really do we fight summary judgment take this to trial when the guts of our complaint has been dismissed out or do we do we take take it on the chin in summary judgment and then thereby appealed the rulings to dismiss and the ruling for summary judgment right away i think our problem with the summary judgment as as you mentioned the plaintiff did not file an opposition to summary judgment nor did they file a rule fifty six affidavit requesting any additional discovery or identify what discovery was necessary there for the case law is pretty clear that it was waived at the trial court for not raising a below in addition as you pointed out it wasn't raised in the appellate brief other than i think there's a passing reference to it in the introduction and then in the conclusion but other that the merits of summary judgment are not discussed in the brief and we would argue it's been waived the issue of discovery keeps coming up this is not a normal case where actually it is a normal case where there is a motion to dismiss and it's granted in no discovery was done the motions to dismiss are filed the pla ff had from august until april to conduct discovery the judge granted the motions in whole as it relates to miss dion hearts clients in a part as it relates to mine in april discovery was conducted depositions were taken written discovery was exchanged they were discovery motions that were exchanged and extensions granted there was adequate opportunity to conduct discovery and there are no motions to compel at the trial court there's not an emotion i don't have the docket  r me but i don't believe there's a motion for an extension filed after the rulings on the motion to dismiss they had all been filed before and again we were conducting discovery throughout there's not anything the plaintiff even in the brief today or argument today that plaintiff has identified what the plaintiff was denied there's not been any like i said there's no rule fifty six affidavit saying these are the five things that i should have been granted they had an opportunity to petition the court to order the grand jury transcript they did not do of case to permit the plaintiff to get the grand jury transcript i probably would have opposed it the judge probably would have granted it but they would have needed it by so we don't know yet it was and it never happened they would have needed in order for the common pleas court clerks to give it to them obviously that takes us to the motions to dismiss the complaint has a lot of facts and very salacious most of them don't have anything to do brenda bickerstaff the statements that relate to ms becker staff are more legal conclusions miss becker staff is convinced that somebody must have lied to the grand jury about her because she was indicted but she can't point to anything she doesn't point to any evidence that was so the the facts don't support the claims that would you need something to overcome the inference that the indictment would indicate probable cause we're also in a unique position that since we also had  summary judgment to depositions we know little more facts that are outside of the complaint but as you stated the victim miss harris came to mr liberally and said she's calling me she did a statement it got processed up through the chain and the prosecutor elected to present it to the grand jury the grand jury indicted there's no evidence or facts other than counsel's legal conclusions that obviously somebody presented something false to the grand jury or there would've been in a document the two claims against mr luker early that were dismissed on the motion to dismiss were retaliatory prosecution allegedly the plaintiff claims mr luker really had a first member motivation prosecuting her but then on the other hand what they keep saying is he was there actually trying to cover up his own nefarious actions we disagree with the facts of the various actions but that's what's pled but as you count those the court was pointing out there's notes referenced in the complaint saying do you really need for you don't really need to worry about it if this doesn't get indicted i don't really care which i believe it was judge boggs pointed out that kind of counters if he's doing this to cover himself up he's going to want her indicted i also don't think it's an incredibly logical jump that if he's trying to cover up a relationship that drawing attention to it by prosecuting her who is covering up the relationship  so the retaliatory prosecution there's really not a first member motivation pled but in addition the indictment is again fatal to the retaliation claim the second claim that was dismissed for mr luker really was couch two ways reckless willful wanton conduct that's not a cause of action ohio it's just an element of community analysis so that was properly dismissed and the second claim was the state's sham legal proceeding cause of action which has a civil and criminal component but again the indictment proves to be fatal to that cause of action as well so again while there are very salacious i will say facts pled in the complaint most of them don't relate to misspeak or staff  there weren't facts to support the claims against mr luker really they were just counsel's legal conclusions as to what his motivation must have been again it's repeated that they claim that  someone presented false evidence to the grand jury who presented false evidence what did they present there's nothing that's factual that's alleged anywhere in the complaint was was mcduffie the only person who testified before the grand jury in this case she was on smaller cases that are simple and this is outside the complainants where in the depositions later they have grand jury liaisons and they'll just hand them the file and if it's complicated she hands it back and says do it yourself yes we know we know if there was any false information we know who presented it and if you got the testimony you could see what it was whether they were conveying information to reporters right and they did not  reality is she's going to be limited to the file they have the file so they know what she would have had in front of her the they would have had the file on prosecuting the speaker staff which in this case is really hers the victim's statement have a legitimate feeling belief of harassment or was she is trying to get her boyfriend your client the co my client was deposed and he indicated they did not have a personal relationship they were friendly that's the only miss harris we know later is not true but it doesn't support the claim there's another throw and smoke in it like the arguments about there's arguments about the other officers covering up for shootings and other missed paperwork so it's if you throw enough smoke in it they're all evil and therefore my case must be good well that doesn't make all those other things relating to miss baker staff unless you have any other questions we just ask you to affirm and i'll leave the rest of her thank you at least three different sets of facts that are never alleged in the complaint that would be necessary to really prove causation here and one of that is that the individual defendants that i represent again hill leg mcduffie ever even knew finding out about his relationship with jasmine harris or with any other victim as alleged plain and finally it's not alleged that doesn't include leg because they'd least have specific allegations about the defendant luke or early for any of the previous relationships and again not talking much as parents talking about and her name is haven't smith and the complaint then detective luke really would have been disciplined and he never would have been in the position to investigate or bring charges against mr staff and that is just too far removed from the actions that are alleged in this complaint an awareness of general misconduct as in for insufficient to impose liability supervisory and non supervisory personnel under one thousand nine hundred three and that stated in she her solute trial that is exactly what's happened here nobody in there's no allegations that anyone knew about this jasmine harris case just that they knew about what was going on mr lowe and and defendant move really i think it is very persuasive to show that the only text messages that the appellant puts forward in the complaint are those saying don't worry about it detective mcduffie if you don't get this indictment i know personally when i delegate work to others and i'm not doing it myself as was the case here in presenting something to the grand jury i'm not going to put so much pressure on the person i delegated to if i'm not willing to do it myself there's no indication in the statement from the text messages with that she knew anything about detective past or even knew that there were facts that should have been told to the grand jury about to talk to lou girlies past or his alleged involvement with jasmine harris there's nothing in complaint to support that she knew anything prior to going into the grand jury other than that this was a run of the mill criminal investigation if he truly did put a note on the file please don't indict this or through the texans as we know he said don't worry about if this doesn't result in an indictment she went forward with it anyway that does not support a conspiracy with the same motivation with detective liberality again i would like to stress that it would just be a leap of logic and causation that had defendants leg defendant hill actually reported any of the prior conduct of detected that he would have been dismissed from the claim police department and never would have been in a place to raise these complaints against miss bickerstaff that takes me to the city of complaint against the city of cleveland there is no alleged pattern of abuses against the city of cleveland there is one instance of an alleged constitutional violation and that only involves the participation of four officers most this was not a why there's no allegation of a widespread involvement and in fact this is limited to one police department district of five within the city of cleveland and again i would say that cause a sion is again an issue and as ms miley addressed miss bickerstaff essentially saying that because i was harmed there must be a policy excuse me there must be a policy that resulted in my harm even if that policy is not  here first i'd like to start with many of the arguments raised by both mistry and heard in this my only go to the weight of the evidence and what certain things are more likely to show or not at the pleading stage we're required to take the allegations that plaintiff has made as true and in decide whether or not they create a plausible inference that there's a claim i think our complaint certainly has done that with regard to the discovery issues i think that that is as far as it goes to the motions for twelve b six that's irrelevant because discovery doesn't come into but there is case law out there that if a a motion for an extension was was denied that that's sufficient to to keep an appealable issue the parties initially all jointly moved in by way of background let me say that these motions to dismiss were pending for a period of over six months or plaintiff was trying to do was to hold off on conducting a ton of discovery until we knew what accounts in our complaint were going to be viable and dependent luke ereli had not he was in default he had not even appeared until december all the parties moved for an extension actually moved the court to hold the discovery dates in abeyance until the motions to dismiss were decided on that motion was granted in part and there was a it was granted until february twenty seventh only about two months after luke ereli actually appeared in the case and after that point the parties then again all moved for an additional ninety days which was granted in part we will only got about its sixty days and the court indicated on the docket that no further discovery would be granted now are we then required after the court has told all the parties there will be no more discovery to then move again and ask them for discovery i mean i think there and as far as no improper that is improper conduct on behalf of hill or leg the district court found that point of pop plausibly pled that there was a plan between defendants hill leg and l to conduct discovery i think we would have been been able to find more and been able to oppose a motion for summary just thing prevented you from asking for more time discovery when it turned out that the judge didn't make it through his ruling on the rule twelve  six motion still what a week or two before the clearly indicated and it's on the docket that no further discovery had but that was before he didn't know how long it was going to take him to finally rule on the twelve the six right he said no further that in like don't made it very clear to the parties that there would be no more discovery and again i would argue that the discovery issue is only relevant to the motion for summary judgment and is not relevant to how this case was decided on the twel