UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

ANTHONY MATTHEWS,

Plaintiff, Case No. 3:18-cv-26

vs.

RANDY BETSINGER, et al., District Judge Thomas M. Rose

Magistrate Judge Michael J. Newman

Defendants.

______________________________________________________________________________

REPORT AND RECOMMENDATION1 THAT: (1) PRO SE PLAINTIFF’S FEDERAL 

CLAIMS BE DISMISSED PURSUANT TO 28 U.S.C. § 1915(e)(2)(B); (2) DEFENDANT 

SANDY’S TOWING AND RECOVERY’S MOTION FOR JUDGMENT ON THE 

PLEADINGS (DOC. 17) BE DENIED AS MOOT; (3) THE COURT DECLINE TO 

EXERCISE SUPPLEMENTAL JURISDICTION OVER PRO SE PLAINTIFF’S STATE 

LAW CLAIMS; AND (4) THIS CASE BE TERMINATED ON THE COURT’S DOCKET 

______________________________________________________________________________

This is a civil rights case wherein pro se Plaintiff Anthony Matthews (“Matthews”) asserts, 

inter alia, claims under 42 U.S.C. § 1983 arising from a traffic stop that occurred on January 19, 

2018 in Dayton, Ohio. See doc. 14. The undersigned recently granted Matthews leave to file an 

amended complaint (doc. 33) and, because Matthews is proceeding in this case pro se, the 

undersigned is required to conduct an initial review of the amended complaint pursuant to 28 

U.S.C. § 1915(e)(2). In addition to the § 1915 initial review, this case is also presently before the 

Court on the motion for judgment on the pleadings filed by Defendant Sandy’s Towing and 

Recovery, Inc. (“Sandy’s”). Doc. 17. Matthews filed a memorandum in opposition to Sandy’s 

motion (doc. 21) and, thereafter, Sandy’s filed a reply (doc. 25).

 

1 Attached hereto is a NOTICE to the parties regarding objections to this Report and 

Recommendation. 
2

I.

In accordance with 28 U.S.C. §1915(e)(2), this Court must perform an initial review of the 

amended complaint filed by Matthews. McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 

1997). Upon review, the Court “shall dismiss [a] case at any time if [it] determines that . . . the 

action or appeal . . . fails to state a claim upon which relief can be granted[.]” 28 U.S.C. 

§ 1915(e)(2)(B)(ii). In conducting an initial review under § 1915, the Court accepts Matthews’s 

allegations as true and construes them liberally in his favor. See Donald v. Marshall, No. 84-3231, 

1985 WL 13183, at *1 (6th Cir. Apr. 5, 1985). While pro se pleadings are “to be liberally 

construed” and are “held to less stringent standards than formal pleadings drafted by lawyers,” 

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), pro se plaintiffs must still satisfy basic 

pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).

II.

As noted above, this case arises from a traffic stop that occurred on January 19, 2018. See 

doc. 19-1. On that date, Matthews was operating a vehicle in Dayton, Ohio. Doc. 1 at PageID 9. 

After Matthews failed to stop at a stop sign, Dayton Police Officer Randy Betsinger stopped 

Matthews on Catalpa Drive in Dayton. Id.; see also doc. 19-1 at PageID 136. When Matthews 

was unable to produce a valid driver’s license upon request, Betsinger asked Matthews to exit the 

vehicle. Id. Matthews initially refused to exit the vehicle, but subsequently complied when 

Betsinger threatened to forcibly remove him. Id. 

Once Matthews exited the vehicle, Betsinger searched Matthews’s pockets, informed 

Matthews that the car was going to be towed, and then searched the vehicle.2 Id. Matthews does 

not allege that he was actually arrested; only that he was detained on the curb in the cold during 

 

2 Matthews asserts no claims regarding the search of his person or vehicle.
3

the traffic stop. See doc. 1 at PageID 9. During the stop, Betsinger gave Matthews a citation 

charging him with three offenses: (1) driving under suspension in violation of Ohio Rev. Code § 

4510.11; (2) driving without a license in violation of Ohio Rev. Code § 4510.12(A); and (3) failing

to stop at a stop sign in violation of Dayton City Ordinance § 71.44(B). Doc. 19-1 at PageID 137. 

The citations issued to Betsinger included a summons to appear in the Dayton Municipal Court on 

January 29, 2018. Id.

On January 24, 2018, just days after the traffic stop, Matthews commenced this civil action 

by filing his original complaint in this Court. See doc. 1 at PageID 9. The undersigned has liberally 

construed Matthews’s original complaint to assert alleged constitutional violations under 42 

U.S.C. § 1983. See Matthews v. Dayton Police Dep’t, No. 3:18-CV-26, 2018 WL 2191394, at *1 

(S.D. Ohio May 14, 2018), report and recommendation adopted sub nom. Matthews v. Betsinger, 

No. 3:18-CV-026, 2018 WL 3609489 (S.D. Ohio July 27, 2018). In his original complaint, 

Matthews specifically asserted, inter alia, claims of malicious prosecution and false imprisonment

under 42 U.S.C. § 1983 (doc. 1)3-- claims which require Matthews to show the absence of probable 

cause supporting his detention and prosecution.

4 Gorcaj v. Medulla, 51 F. App’x 158, 159 (6th 

Cir. 2002) (holding that a “section 1983 claim based on theories of . . . false imprisonment and 

malicious prosecution . . . turns on the question of probable cause”).

 

3 Matthews also purports to assert a claim of abuse of process. See doc. 1 at PageID 12. However, 

“a federal abuse of process claim does not exist in the law of this circuit.” Rapp v. Dutcher, 557 F. App’x 

444, 448 (6th Cir. 2014).

4

In his original complaint, Matthews sought to assert criminal charges against Defendant under 18 

U.S.C. § 4. However, 18 U.S.C. § 4 is a criminal statute that does not provide a private right of action to 

individuals. See Matthews, 2018 WL 2191394 at *1. In his amended complaint, Matthews purports to 

assert claims under 18 U.S.C. §§ 242 and 245. See doc. 14 at PageID 99. No private cause of action exists 

for alleged violations of those statutes, however. See Duncan v. Cone, No. 00-5705, 2000 WL 1828089, at 

*1 (6th Cir. Dec. 7, 2000); Moore v. Potter, 47 F. App’x 318, 320 (6th Cir. 2002). Accordingly, such claims 

are frivolous and should be dismissed.
4

On March 13, 2018, Matthews was found guilty and convicted of driving without a license 

in violation of Ohio Rev. Code § 4510.12(A) and failing to stop at a stop sign in violation of 

Dayton Municipal Code § 71.44(B). Doc. 19-1 at PageID 136. The charge for driving under 

suspension was withdrawn. Matthews did not appeal these convictions within the time period set 

forth by Ohio law. See Ohio App. R. 4.

On May 2, 2018, Matthews, with leave of court (doc. 33), filed an amended complaint in 

this civil case in which he purports to add factual allegations against Sandy’s -- i.e., that Sandy’s 

removed his vehicle “to their place of business and attempted to charge [him] a fee for his own 

property back, while on the assumed authority of the Dayton Police Department.” See doc. 14 at 

PageID 100. Matthews, in his amended complaint, omits the detailed allegations he previously set 

forth in his original complaint. See doc. 1 at PageID 9; doc. 14 at PageID 99-101. Although 

Matthews’s amended complaint supersedes and nullifies the original complaint, see Drake v. City 

of Detroit, 266 F. App’x 444, 448 (6th Cir. 2008), in the interest of justice, the undersigned will 

consider the facts and claims asserted in both the original and amended complaints in conducting 

this initial review under 28 U.S.C. § 1915(e).

III.

The undersigned first notes that the caption of Matthews’s original complaint specifically 

names only Betsinger as a Defendant to this action. Doc. 1 at PageID 1. Similarly, Matthews’s 

amended complaint lists only Betsinger as a Defendant in the caption. Doc. 14 at PageID 99. 

Although the City of Dayton (“the City”) and Sandy’s have appeared in the case, they are arguably 

not properly named Defendants in this action. See Fed. R. Civ. P 10(a); Bakari v. May, No. 3:10-

cv-250, 2011 WL 1743728, at *1 n. 1 (S.D. Ohio May 6, 2011); Bailey v. Ruehlman, No. 3:16-

CV-5, 2016 WL 498877, at *2 (S.D. Ohio Feb. 9, 2016), report and recommendation adopted, 
5

No. 3:16-CV-005, 2016 WL 3194772 (S.D. Ohio June 9, 2016). Nevertheless, in conducting this 

initial review, the undersigned assumes, arguendo, that the City, Sandy’s, and Betsinger have all 

been properly named as Defendants.

The Court next addresses Matthews’s civil rights claims asserted under § 1983. “To prevail 

on a § 1983 claim, a plaintiff must establish that a person acting under color of state law deprived 

the plaintiff of a right secured by the Constitution or laws of the United States.” Green v. 

Throckmorton, 681 F.3d 853, 859-60 (6th Cir. 2012) (citing Waters v. City of Morristown, Tenn., 

242 F.3d 353 (6th Cir. 2001)). With regard to Sandy’s, Matthews’s allegations are wholly 

insufficient to establish that Sandy’s is a state actor subject to liability under § 1983. See Partin 

v. Davis, 675 F. App’x 575, 586-87 (6th Cir. 2017). Accordingly, Matthews’s § 1983 claims 

against Sandy’s must be dismissed.

Matthews’s § 1983 claims against Betsinger and the City fail for different reasons. As 

noted above, Matthews alleges claims of malicious prosecution and false imprisonment/unlawful 

detention.5 To succeed on a malicious prosecution claim, Matthews must allege and prove a “lack 

of probable cause for the criminal prosecution” and that “the criminal proceeding . . . resolved in 

[his] favor.” Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010) (citations omitted). As set 

forth above, Matthews was ultimately convicted of two underlying traffic offenses and, thus, he is

estopped from showing the absence of probable cause. See Fannon v. Patterson, No. 3:13-CV14, 2014 WL 4273337, at *4 (S.D. Ohio Aug. 29, 2014) (holding that “a finding of guilt in the 

underlying criminal prosecution ‘estop[s] plaintiff[ ] from ... asserting in federal court that the 

 

5 Matthews also arguably alleges claims a denial of access to the courts and equal protection 

violations. See doc. 1 at PageID 1. However, such claims are unsupported by any factual allegations and, 

therefore, are subject to dismissal.
6

defendant police officers acted without probable cause’”). Thus, dismissal of his malicious 

prosecution claims against Betsinger and the City is proper as a matter of law.

With regard to Matthews’s § 1983 claim for false imprisonment/unlawful detention, it is 

clear that “[s]topping and detaining a motorist constitute[s] a seizure within the meaning of the 

Fourth Amendment even if the purpose of the stop is limited and the resulting detention quite 

brief.” Hoover v. Walsh, 682 F.3d 481, 493 (6th Cir. 2012) (internal quotations omitted). 

However, similar to a claim of malicious prosecution, a successful false imprisonment/unlawful 

detention claim requires the absence of probable cause, Fannon, 2014 WL 4273337 at *3, which 

again, Matthews is estopped from arguing. See supra; see also Hoover, 682 F.3d at 493 (holding 

that “a traffic stop is justified when a police officer . . . has probable cause to believe that a civil 

traffic violation has been committed”). Further, in his initial and amended complaints, Matthews 

alleges no factual allegations that his detention lasted “longer than [was] necessary to effectuate 

the purpose of the stop[.]” United States v. Winters, 782 F.3d 289, 296 (6th Cir. 2015). 

Accordingly, Matthews fails to state a false imprisonment/unlawful detention claim against 

Betsinger and the City.

In his amended complaint, Matthews also purports to assert a claim under the Racketeer 

Influenced and Corrupt Organization Act (“RICO”), 18 U.S.C. § 1961 et seq. See doc. 14 at 

PageID 99. To prevail on a civil RICO claim, one must show: “‘(1) conduct (2) of an enterprise 

(3) through a pattern (4) of racketeering activity.’” Moon v. Harrison Piping Supply, 465 F.3d 

719, 723 (6th Cir. 2006). To demonstrate “a pattern of racketeering activity[,]” one must show 

“two acts of racketeering activity within ten years of each other[,]” that the racketeering acts “are 

related, and that they amount to or pose a threat of continued activity.” Ouwinga v. Benistar 419 

Plan Servs., Inc., 694 F.3d 783, 795 (6th Cir. 2012). No such allegations are pled here. Matthews’s 
7

allegations with regard to his civil RICO claim are, thus, wholly insufficient to state a cause of 

action and, therefore, such claim should be dismissed.

Any remaining claims which can be liberally construed to be asserted by Matthews all arise 

under Ohio law. “Once [a] district court dismisse[s] all of the claims over which it ha[s] original 

jurisdiction, it act[s] squarely within its discretion by declining supplemental jurisdiction over the 

remaining [state law] claim[s] and dismissing [them] without prejudice.” Booker v. City of 

Beachwood, 451 F. App’x 521, 522-23 (6th Cir. 2011) (citing 28 U.S.C. § 1367(c)(3)). To the 

extent Matthews’s allegations could reasonably be construed to allege state law claims, the 

undersigned recommends that the Court decline to exercise supplemental jurisdiction over any 

such claims. See 28 U.S.C. § 1367(c)(3).

IV.

Based on the foregoing, the undersigned RECOMMENDS that: (1) pro se Plaintiff’s 

federal claims be dismissed sua sponte under 28 U.S.C. § 1915(e) for failure to state a claim; (2) 

Defendant Sandy’s motion for judgment on the pleadings (doc. 17) be DENIED AS MOOT; (3) 

the Court DECLINE to exercise supplemental jurisdiction over Plaintiff’s state law claims; and 

(4) this case be TERMINATED on the docket.

Date: August 15, 2018 s/ Michael J. Newman

Michael J. Newman

United States Magistrate Judge
8

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections 

to the proposed findings and recommendations within FOURTEEN days after being served with 

this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if 

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however, 

this Report and Recommendation was served upon you by mail, this deadline is extended to 

SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the 

deadline to file objections by filing a motion for extension, which the Court may grant upon a 

showing of good cause. 

Any objections filed shall specify the portions of the Report and Recommendation objected 

to, and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based, in whole or in part, upon matters occurring of record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. 

A party may respond to another party’s objections within FOURTEEN days after being 

served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ. 

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If, 

however, this Report and Recommendation was served upon you by mail, this deadline is extended 

to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). 

Failure to make objections in accordance with this procedure may forfeit rights on appeal. 

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 

(6th Cir. 1981).