IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Justin Saunders,

Case No. 2:12-cv-238

Plaintiff, 

v. Judge Graham

Kenneth Valverde, et al., Magistrate Judge Kemp

Defendants.

OPINION AND ORDER

This matter is before the court on a motion for partial judgment on the pleadings pursuant

to Fed. R. Civ. Pro. 12(c) filed by defendants Kenneth Valverde, Curtis Whittaker, James Ailes,

Robert Penrod, John Hartman, Dave Sturman, and Russ Martin. (Doc. 36). Plaintiff Justin Saunders

brings a ten-count complaint alleging, inter alia, that moving defendants and two other individual

defendants arrested, searched, and charged him with crimes in violation of the 1st, 4th, and 14th

Amendments to the United States Constitution and various state laws. 

I. Procedural Background

In a prior order (doc. 26), the Court granted in part and denied in part defendant Harold

Kolsky’s motion to dismiss under Fed. R. Civ. Pro. 12(b)(6). Moving defendants seek to apply the

findings and reasoning of that order to achieve dismissal of some of the plaintiff’s claims against

them. 

The Court’s prior order dismissed four counts against defendant Kolsky: Count I for

excessive force; Count VII for deliberate indifference to plaintiff’s medical needs; Count VIII for

violation of plaintiff’s due process rights; and Count IX for municipal liability. The Court denied

the motion with regard to Count V for conspiracy, holding that the plaintiff had stated a claim under

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42 U.S.C. § 1983, but not under § 1985. The Court also denied the motion with regard to Count VI,

holding that the plaintiff had not stated a claim for abuse of process, but had stated a claim for

malicious prosecution. 

Defendants Ailes, Penrod, Hartman, Sturman, and Martin move for dismissal of Count I for

excessive force. All seven moving defendants–Ailes, Penrod, Hartman, Sturman, Martin, Valverde,

and Whittaker–seek dismissal of Count VIIIfor due process violations, Count V to the extent it rests

upon a violation of 42 U.S.C. § 1985, and Count VI to the extent that it seeks to state a claim for

abuse of process.

II. Factual Background

This litigation stems from events surrounding plaintiff’s arrest after midnight on March 18,

2010. (Complaint, Doc. 2 ¶ 18.) Saunders and several friends and relatives were “enjoying a

libation” at Clancy’s Pub in Delaware, Ohio, when plaintiff noticed “several police officers [who]

seemed to be rousting his younger brother, William.” Id. ¶¶ 18-20. Plaintiff approached the officers

and “questioned the manner and misconduct which the police were using in order to harass his

brother . . . .” Id. ¶ 21. In response to his query, plaintiff alleges that someone from the group of

police officers grabbed him from behind and forced his head through a plate glass window in the

front of the pub. Id. ¶ 25. Defendant Curtis Whittaker allegedly bound the plaintiff and pushed him

to the ground, lacerating his face, arms, torso, and upper body. Id. ¶¶ 25-27. Though plaintiff

specifies that defendant Whittaker bound his arms and pushed him to the ground, he alleges more

generallythat “[d]efendant Whittaker and/or Defendant Valverde, and/or other Defendants” initially

grabbed him and pushed his head through the window. Id. ¶¶ 24, 25. Plaintiff was arrested and

placed in a jail cell at the Delaware Police Department. Id. ¶ 36. He claims that he requested and

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was denied medical attention for his lacerations. Id. 

Plaintiff brings this complaint against ten defendants–the seven movants and three other

defendants. The moving defendants are police officers for the City of Delaware, Ohio, and the Chief

of Police. (Doc. 2 at 10-11.) 

II. Legal Standard

Federal Rule of Civil Procedure 8(a) requires that a pleading contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When

considering a motion under Rule 12(b)(6) to dismiss a pleading for failure to state a claim, a court

must determine whetherthe complaint “contain[s] sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court should construe the complaint

in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the

complaint as true. Iqbal, 556 U.S. at 679; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Twombly,

550 U.S. at 555-56. 

Despite this liberal pleading standard, the “tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556

U.S. at 678; see also Twombly, 550 U.S. at 555, 557 (“labels and conclusions” or a “formulaic

recitation of the elements of a cause of action will not do,” nor will “naked assertion[s]” devoid of

“further factual enhancements”); Papasan v. Allain, 478 U.S. 265, 286 (1986) (a court is “not bound

to accept as true a legal conclusion couched as a factual allegation”). The plaintiff must provide the

grounds of his entitlement to relief “rather than a blanket assertion of entitlement to relief.” 

Twombly, 550 U.S. at 556 n.3. Thus, “a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than conclusions, are not entitled to the

assumption of truth.” Iqbal, 556 U.S. at 679.

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When the complaint does contain well-pleaded factual allegations, “a court should assume

their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal,

556 U.S. at 679. “A claim has facial plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. at 678. Though “[s]pecific facts are not necessary,” Erickson, 551 U.S. at 93, and though Rule

8 “does not impose a probability requirement at the pleading stage,” Twombly, 550 U.S. at 556, the

factual allegations must be enough to raise the claimed right to relief above the speculative level and

to create a reasonable expectation that discovery will reveal evidence to support the claim. Iqbal,

556 U.S. at 678-79; Twombly, 550 U.S. at 555-56. This inquiry as to plausibility is “a

context-specific task that requires the reviewing court to drawon itsjudicial experience and common

sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’– ‘that the pleader is

entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

III. Analysis

Excessive Force (Count I) 

The Court’s prior order dismissed Count I against defendant Kolsky because the complaint

did not specifically allege that Kolsky had taken any action that would support a claim for excessive

force. Instead, the complaint alleged “generally that ‘other defendants’ took an action . . . .” (Doc.

26 at 4.) The Court held that this general allegation was “insufficient to allege that any one of eight

possible defendants took the action.” (Doc. 26 at 4.) The Court dismissed Count I against defendant

Kolsky because the complaint had not “affirmatively plead [his] personal involvement . . . in the

allegedly unconstitutional action.” Gregg v. Ohio Dep’t of Youth Servs., 661 F.Supp.2d 842, 858

(S.D. Ohio 2009).

As movants argue, the same logic applies to defendants Ailes, Penrod, Hartman, Sturman,

and Martin. As with defendant Kolsky, the complaint includes no specific, non-conclusory

allegations that could support an excessive force claim against defendants Ailes, Penrod, Hartman,

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Sturman, or Martin.

Due Process (Count VIII)

The Court’s prior order dismissed Count VIII against defendant Kolsky which alleged a due

process violation. The Court held that because plaintiff alleged that he had been tried in a court of

law, he had not stated a due process claim arising from the charges for which he was tried: “A trial

(at which plaintiff was acquitted of most charges) is the process to which an individual charged with

a crime is entitled.” (Doc. 26 at 7.) The same logic applies to Count VIII as applied to each of the

seven moving defendants.

Conspiracy (Count V)

In the prior order, the Court denied defendant Kolsky’s motion to dismiss Count V for

conspiracy, but held that the complaint did not state a claim for conspiracy under 42 U.S.C. § 1985 

because “[t]he complaint fails to allege that the plaintiff was a member of any class that motivated

the defendants to deprive him of his rights,” as required by Section 1985. (Doc. 26 at 5-6.) The

same logic applies to all moving defendants. As in the previous order, this holding does not require

dismissal of Count V. In addition to Section 1985, Count V asserts a conspiracy under 42 U.S.C.

§ 1983, which requires no class-based animus. (See doc. 26 at 5-6.)

Abuse of Process (Count VI)

Similarly, the Court’s prior order denied defendant Kolsky’s motion to dismiss Count VI,

holding that complaint had stated a claim for malicious prosecution. (Doc. 26 at 7.) The court

concluded that the complaint had not stated a claim for abuse of process because the “plaintiff has

not alleged that the legal proceedingwas set in motion with probable cause–just the opposite.” (Doc.

26 at 7.) The same logic applies to the claims brought against moving defendants.

Plaintiff’s Arguments Regarding the Joint Motion

Though his legal argument is difficult to follow, plaintiff seems to object to seven defendants

moving jointly for partial dismissal, or as he puts it, “in bulk.” (Doc. 41 at 6.) Plaintiff’s objection

to the joint motion is that “at no point do the Defendants differentiate any facts that may be

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attributable and personal to any individual Defendant.” (Doc. 41 at 5.) This argument is premised

on a faulty understanding of the posture of the case. The Court will construe the complaint in the

light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint

as true. Iqbal, 556 U.S. at 679; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Twombly, 550 U .S.

at 555-56. But the burden of producing such factual allegations lies solely with the plaintiff. Here,

the plaintiff includes identical, general, and threadbare allegations for many defendants. Where the

plaintiff has declined to differentiate between numerous defendants, the defendants are under no

obligation to do so.

IV. Conclusion.

Based on the foregoing reasons, the motion for partial judgment on the pleadings brought by

defendants Valverde, Whittaker, Ailes, Penrod, Hartman, Sturman, and Martin is GRANTED.

IT IS SO ORDERED. 

S/ James L Graham 

James L. Graham

UNITED STATES DISTRICT JUDGE

Date: October 11, 2012

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