UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHARLES V. HORN,

Plaintiff,

 Civil Action 2:12-cv-00267

v. Judge Michael H. Watson

 Magistrate Judge E.A. Preston Deavers

LITHOPOLIS CITY POLICE

DEPARTMENT, et al.,

 

Defendants.

ORDER AND REPORT AND RECOMMENDATION

On April 11, 2012, the Court granted Plaintiff’s Application to Proceed Without

Prepayment of Fees. This matter is before the Court for consideration of Plaintiff’s Motion to

Amend as well as an initial screen of Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e). For

the reasons that follow, Plaintiff’s Motion to Amend is GRANTED. (ECF No. 6.) It is

RECOMMENDED, however, that the Court DISMISS any potential federal cause of action for

failure to state a claim and DECLINE to exercise supplemental jurisdiction over any purported

state law claim.

I.

A. Motion to Amend

The Court will first consider Plaintiff’s April 18, 2012 Motion to Amend. Plaintiff seeks

amendment for the sole purpose of adding Fairfield County, Ohio, as a defendant in this action.1

1

 Because Plaintiff does not actually submit an Amended Complaint, or seek to alter his

factual allegations, the undersigned will consider the pleadings within the original Complaint in

performing the initial screen.

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Pursuant to Federal Rule of Civil Procedure 15(a) a party may amend its pleading once as a

matter of right if the amendment occurs within 21 days of service. Fed. R. Civ. P. 15(a)(1)(A). 

Plaintiff has moved within this time period, and, therefore, Plaintiff’s Motion to Amend is

GRANTED. The Clerk is DIRECTED to add Fairfield County, Ohio, as a defendant in this

action.

B. Initial Screen

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). 

In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)2

 as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that-- 

***

(B) the action or appeal--

 (i) is frivolous or malicious; 

(ii) fails to state a claim on which relief may be granted; or . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted. 

2

 Formerly 28 U.S.C. § 1915(d). 

2

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To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Fed. R. Civ. P. 8(a). See also Hill v. Lappin, 630

F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure 12(b)(6) standards

to review under 28 U.S.C. § 1915(e)(2)(B)(ii)). Although this pleading standard does not require

“‘detailed factual allegations,’ . . . [a] pleading that offers ‘labels and conclusions’ or ‘a

formulaic recitation of the elements of a cause of action,’” is insufficient. Ashcroft v. Iqbal, 566

U.S. ----, ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.

544, 555 (2007)). Furthermore, a complaint will not “suffice if it tenders ‘naked assertion[s]’

devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). Instead, to

survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules

of Civil Procedure, “a complaint must contain sufficient factual matter . . . to ‘state a claim to

relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility

is established “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.; see also New

Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011) (holding,

pursuant to Iqbal and Twombly, that a plaintiff must allege sufficiently specific facts to state a

facially plausible claim even if such facts are in the hands of the defendants).

In considering whether this facial plausibility standard is met, a Court must construe the

complaint in the light most favorable to the non-moving party, accept all factual allegations as

true, and make reasonable inferences in favor of the non-moving party. Total Benefits Planning

Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citations

omitted). Additionally, the Court must construe pro se complaints liberally. Younis v. Pinnacle

Airlines, Inc., 610 F.3d 359, 362 (6th Cir. 2010). The Court is not required, however, to accept

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as true mere legal conclusions unsupported by factual allegations. Iqbal, 129 S.Ct. at 1949.

To the extent Plaintiff brings federal causes of action, it appears he is alleging claims

under 42 U.S.C. § 1983 for malicious prosecution, unlawful arrest, or false imprisonment.3

These claims all require Plaintiff to demonstrate a lack of probable cause. Sykes v. Anderson,

625 F.3d 294, 308 (6th Cir. 2010) (holding that to succeed on a malicious prosecution claim

under § 1983, “the plaintiff must show that there was a lack of probable cause for the criminal

prosecution”); Brooks v. Rothe, 577 F.3d 701, 706 (6th Cir. 2009) (“[I]n order for a wrongful

arrest claim to succeed under § 1983, a plaintiff must prove that the police lacked probable

cause.”) (internal quotations omitted); Horacek v. Neph, No. 09–1538, 2012 WL 806055, at *2

(6th Cir. Mar. 13, 2012) (holding that ¶ 1983 claims for false arrest or imprisonment require a

plaintiff to “prove that his arrest was not supported by probable cause”).

Here, Plaintiff fails to plead sufficient facts to state a facially plausible federal claim. 

Plaintiff relies primarily on the assertion that he “was unlawfully arrested, incarcerated, and

indicted for Agg[ravated] Robbery, Agg[ravated] Burglary, and Theft.” (Compl. 3, ECF No. 4.) 

Such conclusory allegations are clearly insufficient under Iqbal and Twombly. Plaintiff does

further provide that he was incarcerated from February 1, 2010 until May 10, 2012; under

electronic monitoring from May 10, 2010 until July 23, 2010; and that the criminal charges were

eventually dropped on July 30, 2010. Nevertheless, these pleadings do not provide sufficient

detail for the Court to reasonably infer that Defendants arrested, investigated, or prosecuted

3

 Plaintiff does not labels his claims, but maintains that he was unlawfully arrested,

incarcerated, and indicted for a series of crimes.

4

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Plaintiff without probable cause.4

 Accordingly, Plaintiff’s claims fail to state a federal claim.

Additionally, to the extent Plaintiff is attempting to bring state law claims, the Court

should decline to exercise supplemental jurisdiction. Under 28 U.S.C. § 1367(c)(3), the Court

may decline to exercise supplemental jurisdiction when the Court “has dismissed all claims over

which it has original jurisdiction.” The United States Court of Appeals for the Sixth Circuit has

held that “[i]f the federal claims are dismissed before trial, the state claims generally should be

dismissed as well.” Brooks, 577 F.3d at 709 (internal quotations omitted). Here, it appears the

parties are all citizens of Ohio and Plaintiff admits as much in his civil cover sheet. (See ECF

No. 3.) Moreover, for the reasons described above, the Court should dismiss any potential

federal causes of action for failure to state a claim. Under these circumstances, the Court should

also decline to exercise supplemental jurisdiction over any remaining state law claims pursuant

to 28 U.S.C. § 1367(c)(3).

II.

For the foregoing reasons, Plaintiff’s Motion to Amend is GRANTED. (ECF No. 6.) 

Pursuant to an initial screen, it is RECOMMENDED that the Court DISMISS any potential

federal cause of action for failure to state a claim and DECLINE to exercise supplemental

jurisdiction over any purported state law claim.

4

 Indeed, “[u]nder federal law, the issuance of an indictment by a grand jury conclusively

determines the existence of probable cause.” Davis v. McKinney, 422 F. App’x. 442, 443 (6th

Cir. 2011).

5

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III.

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation

omitted)).

Date: May 1, 2012 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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