IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

Gerry Ruff-El, :

 

 Plaintiff, :

 v. : Case No. 2:11-cv-0618

 : 

Nicholas Financial Inc. Magistrate Judge Kemp

 et al., 

 :

Defendants. 

 

OPINION AND ORDER

This matter is before the Court to consider the motion to

dismiss filed by defendants Todd Stonewall, Nicholas Financial,

Inc. and Peter L. Vosotas (the Nicholas defendants). The motion

has been fully briefed. For the following reasons, the motion to

dismiss will be granted.

I. Background

Plaintiff Gerry Ruff-El filed this action as a result of the 

seizure of some of his property by alleged agents of defendant

Nicholas Financial. In addition to the defendants who have moved

to dismiss, Mr. Ruff-El named as defendants the Columbus Police

Department and several police officers including Chief of Police

Walter L. Distelweig, Travis D. Fisher, Joshua S. Daugherty, Lisa

M. Ickes, Austin C. Summers, Matt E. Harris, Larry E. Ferguson,

and John A. Sullivan (the City defendants). The individual City

defendants have been named in both their “official and personal”

capacities and are alleged to have unlawfully arrested Mr. RuffEl in connection with the seizure of his property. Mr. Ruff-El

also has named Gregory Green and Gregory Swartz as defendants. 

According to the complaint, it appears that Mr. Green and Mr.

Swartz are the alleged agents of Nicholas Financial involved in

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the seizure of Mr. Ruff-El’s property. The Court’s docket

reflects that service has not been made on Mr. Green or Mr.

Swartz. Mr. Ruff-El asserts a number of federal and state law

claims in his complaint including breach of fiduciary duties,

violations of 42 U.S.C. §1983 and §1985, breach of contract,

assault, battery, fraud, and violations of 18 U.S.C. §242 and

§1652. 

II. The Motion to Dismiss

The Nicholas defendants have moved pursuant to Fed.R.Civ.P.

12(b)(6) to dismiss Mr. Ruff-El’s claims against them for failure

to state a claim upon which relief can be granted. According to

their motion, all of Mr. Ruff-El’s claims fail for various

reasons. In response, Mr. Ruff-El has filed a document captioned

as a “writ of mandamus to strike scandalous immaterial,

impertinent, materials from defendants Todd Stonewall, Nicholas

Financial, Inc and Peter L, Vosotas motion to dismiss and

memorandum, legal argument and conclusion.” Through this filing,

Mr. Ruff-El expresses his disagreement with various statements

made by the Nicholas defendants in their motion to dismiss,

requests that these statements be stricken, and seeks to remind

the Court of its responsibility to pro se litigants. In reply,

the Nicholas defendants assert that Mr. Ruff-El’s filing is not

responsive to the motion to dismiss. They note that pro se

litigants are not exempt from the Federal Rules of Civil

Procedure and request that Mr. Ruff-El’s claims against them be

dismissed with prejudice at his cost. 

III. Legal Standard

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not

be granted if the complaint contains “enough facts to state a

claim to relief that is plausible on its face." Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007). All well-pleaded factual

allegations must be taken as true and be construed most favorably

toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232, 236

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(1974); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). 

Rule 8(a) admonishes the Court to look only for a “short and

plain statement of the claim,” however, rather than requiring the

pleading of specific facts. Erickson v. Pardus, 551 U.S. 89

(2007). 

A 12(b)(6) motion to dismiss is directed solely to the

complaint and any exhibits attached to it. Roth Steel Products v.

Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The

merits of the claims set forth in the complaint are not at issue

on a motion to dismiss for failure to state a claim. 

Consequently, a complaint will be dismissed pursuant to Fed. R.

Civ. P. 12(b)(6) only if there is no law to support the claims

made, or if the facts alleged are insufficient to state a claim,

or if on the face of the complaint there is an insurmountable bar

to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 697,

702 (6th Cir. 1978). Rule 12 (b)(6) must be read in conjunction

with Fed. R. Civ. P. 8(a) which provides that a pleading for

relief shall contain "a short and plain statement of the claim

showing that the pleader is entitled to relief." 5A Wright &

Miller, Federal Practice and Procedure § 1356 (1990). The moving

party is entitled to relief only when the complaint fails to meet

this liberal standard. Id.

On the other hand, more than bare assertions of legal

conclusions is required to satisfy the notice pleading standard. 

Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th

Cir. 1988). "In practice, a complaint must contain either direct

or inferential allegations respecting all the material elements

to sustain a recovery under some viable legal theory." Id.

(emphasis in original, quotes omitted).

"[w]e are not holding the pleader to an impossibly high

standard; we recognize the policies behind rule 8 and

the concept of notice pleading. A plaintiff will not

be thrown out of court for failing to plead facts in

support of every arcane element of his claim. But when

a complaint omits facts that, if they existed, would

clearly dominate the case, it seems fair to assume that

those facts do not exist."

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Id. It is with these standards in mind that the motion to dismiss

will be decided.

IV. Analysis

As described above, Mr. Ruff-El has set forth both federal

and state law claims against the Nicholas defendants in his

complaint. The Court will address the motion to dismiss as it

relates to his federal claims first.

Mr. Ruff-El’s first federal claim arises under 42 U.S.C.

§1983. According to the Nicholas defendants, §1983 applies only

to persons acting under color of state law and they are private

parties who cannot be considered state actors. There is no

question that only a “‘state actor’” acting “‘under color of

law’” can be liable under §1983. Moldowan v. City of Warren, 578

F.3d 351, 399 (6th Cir. 2009) quoting Tahfs v. Proctor, 316 F.3d

584, 590 (6th Cir. 2003). Nicholas Financial, Inc. appears to be

a private corporation and there are no allegations in the

complaint suggesting that it is any type of state entity. 

Further, although the complaint does not explain the relationship

between the individual Nicholas defendants and the corporation,

the motion to dismiss represents that Mr. Stonewall and Mr.

Vosotas are employees of Nicholas Financial, Inc. Mr. Ruff-El

does not dispute this representation. As a result, Mr. Stonewall

and Mr. Vosotas appear to be private citizens and not state

employees for purposes of Mr. Ruff-El’s claims against them.

A private actor’s conduct can be considered attributable to

the state only if one of three alternative tests is satisfied:

(1) the public function test; (2) the state-compulsion test; or

(3) the nexus, or symbiotic-relationship, test. Mr. Ruff-El has

failed to allege any facts suggesting that the Nicholas

defendants satisfy any of these tests. Moldowan, at 399. 

Consequently, the motion to dismiss will be granted as to this

claim.

Mr. Ruff-el also asserts a claim under 42 U.S.C. § 1985. 

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That statute prohibits conspiracies interfering with civil

rights. Subsection (1) of §1985 relates to a conspiracy to keep

a person from accepting or holding an office or preventing him

from discharging his duties. Subsection (2) deals with a

conspiracy to obstruct justice with the intent to deny equal

protection of the law. Subsection (3) is directed to

conspiracies to deprive persons or classes of persons of

federally protected rights based on some protected class such as

race, gender, or religion. Williams v. Wayne County, 2011 WL

479959 (E.D. Mich. Feb. 4, 2011). 

In his complaint, Mr. Ruff-El does not identify under which

particular prong of §1985 his claim arises. Rather, he alleges

that the defendants conspired to deprive him of his right to

equal protection under the law and to take his property without

due process. Based on this allegation, the Court construes Mr.

Ruff-El’s claim as one brought under subsection (3). 

To state a claim for relief under 42 U.S.C. §1985(3), a

complaint must allege that defendants “1) conspired 2) for the

purpose of depriving any person or class of the equal protection

of the laws, and that 3) one or more of the conspirators

committed an act in furtherance of the conspiracy, 4) ‘whereby

another was injured in his person or property or deprived of

having and exercising any right or privilege of a citizen of the

United States.’” Watkins v. New Albany Plain Local Schools, 711

F.Supp.2d 817 (S.D. Ohio 2010) (Graham, J.) quoting Domokur v.

Milton Township Bd. of Trustees, 2007 WL 2688175(N.D. Ohio Sept.

10, 2007) (citations omitted).

As explained by the Court in Watkins,

The claim must be based on “some racial, or perhaps

otherwise class-based, invidiously discriminatory

animus behind the conspirators' action.” Griffin v.

Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29

L.Ed.2d 338 (1971); O'Neill v. Grayson County War

Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973) (a 

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§1985(3) claim “must be founded on a class-based

invidious discrimination.”). That is, 42 U.S.C.

§1985(3) covers “only those conspiracies against: (1)

classes who receive heightened protection under the

Equal Protection Clause; and (2) those individuals who

join together as a class for the purpose of asserting

certain fundamental rights.” Warner v. Greenebaum,

Doll & McDonald, 104 Fed.Appx. 493, 498 (6th Cir. 2004)

(citations omitted). A class covered under § 1985(3)

must be “more than a group of individuals who share a

desire to engage in conduct that the §1985(3) defendant

disfavors.” Bray v. Alexandria Women's Health Clinic,

506 U.S. 263, 269, 113 S.Ct. 753, 122 L.Ed.2d 34

(1993). 

Because Mr. Ruff-El has not claimed that any violations he

alleges were motivated by a class-based animus, he has failed to

adequately allege a violation of 1985(3). Consequently, the

Nicholas defendants’ motion to dismiss will be granted as to this

claim. 

Mr. Ruff-El also asserts a claim against the Nicholas

defendants for violations of 18 U.S.C. §242 and §1652, both

federal criminal statutes. The Nicholas defendants contend that

these federal criminal statutes do not give rise to a private

cause of action. Further, they contend that 18 U.S.C. §1652

relates to piracy on the high seas and has no application to Mr.

Ruff-El’s claims. 

As a general matter, private individuals have no standing to

enforce federal criminal statutes. That enforcement must occur,

if at all, by way of a criminal action instituted by the United

States. See, e.g., American Postal Workers Union v. Independent

Postal System of America, 481 F.2d 90 (6th Cir. 1973). 

Moreover, it is well-settled that no private right of action

exists under 18 U.S.C. §242, a statute which criminalizes certain

deprivations of civil rights. U.S. v. Oguaju, 76 Fed.Appx. 579

(6th Cir. July 9, 2003); see also Kelly v. City of New

Philadelphia, 2011 WL 3705151 (N.D. Ohio Aug. 22, 2011)(citing

cases). Further, no court has concluded that Congress intended

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to create a private civil right of action in favor of private

individuals under 18 U.S.C. §1652. Even if a private right of

action existed under this statute, it would have no relationship

to Mr. Ruff-El’s claims here. Rather, that statute establishes

that any United States citizen who commits various crimes on the

high seas, including murder or robbery, is a pirate subject to

life imprisonment. Mr. Ruff-El has alleged no facts supporting

such a claim. 

With respect to Mr. Ruff-El’s state law claims, where a

district court would have jurisdiction over state law claims

solely by way of supplemental jurisdiction and the federal claims

are dismissed, the state law claims should be dismissed without

reaching their merits. Sharwell v. Selva, 4 Fed.Appx. 226 (6th

Cir. 2001). As set forth above, the complaint states no viable

federal claim against any of the Nicholas defendants. Further,

it appears from the allegations of the complaint that the Court

lacks independent jurisdiction over Mr. Ruff-El’s state law

claims under the diversity statute because complete diversity

does not exist between Mr. Ruff-El and all of the defendants. 

Accordingly, the Nicholas defendants’ motion to dismiss will be

granted without prejudice as to Mr. Ruff-El’s state law claims of

breach of fiduciary duty, breach of contract, assault, battery

and fraud.

V. Disposition

For all of the reasons stated above, the motion to dismiss

(#12) is granted. This dismissal is without prejudice to Mr.

Ruff-El’s ability to pursue his state law claims in state court

should he so choose. 

/s/ Terence P. Kemp 

United States Magistrate Judge

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