IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Brandon Riffle,

Plaintiff,

v. Case No. 2:18-cv-547

Fairfield County Department

of Probation,

Defendant.

OPINION AND ORDER

This is an action filed by plaintiff pursuant to 42 U.S.C.

§1983 against the Fairfield County Department of Probation. 

Plaintiff alleges in his complaint that while he was serving a term

of community control from 2008 to 2013, he was required to attend

Narcotics Anonymous/Alcoholics Anonymous meetings. Plaintiff

alleges that because he had no religious denomination, the

requirement to attend these meetings constituted a violation of the

constitutional mandate of separation of church and state. 

Plaintiff further alleges that on August 24, 2016, he was arrested

for driving under suspension and detained because of a verbal

probation holder. He states that he appeared in court on October

26, 2016. The court determined that plaintiff’s probation had

expired and dismissed the case. Plaintiff alleges that his

detention on the holder was unlawful.

This matter is before the court for consideration of

plaintiff’s objection (Doc. 4) to the magistrate judge’s July 18,

2018, report and recommendation (Doc 3). If a party objects to a

report and recommendation within the allotted time, the court

“shall make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which

objection is made.” 28 U.S.C. §636(b)(1); see also Fed. R. Civ. P.

72(b). Upon review, the Court “may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. §636(b)(1).

As the magistrate judge correctly explained, 28 U.S.C.

§1915(e) requires sua sponte dismissal of an action upon the

court’s determination that the action fails to state a claim upon

which relief may be granted. Grinter v. Knight, 532 F.3d 567, 572

(6th Cir. 2008). Courts conducting initial screens under §1915(e)

apply the motion to dismiss standard. See, e.g., Hill v. Lappin,

630 F.3d 468, 470–71 (6th Cir. 2010) (applying Fed. R. Civ. P.

12(b)(6) standards to review under 28 U.S.C. §§1915A and

1915(e)(2)(B)(ii)).

Courts ruling on a motion to dismiss under Rule 12(b)(6)

construe the complaint in a light most favorable to the plaintiff,

accepting all well-pleaded allegations in the complaint as true,

and determining whether plaintiff undoubtedly can prove no set of

facts in support of those allegations that would entitle him to

relief. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bishop v.

Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). To survive

a motion to dismiss, the “complaint must contain either direct or

inferential allegations with respect to all material elements

necessary to sustain a recovery under some viable legal theory.” 

Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). While the

complaint need not contain detailed factual allegations, the

“[f]actual allegations must be enough to raise the claimed right to

relief above the speculative level” and “state a claim that to

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relief that is plausible on its face.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 570 (2007). Although the filings of a

pro se litigant are construed liberally, a pro se party will not be

relieved of the responsibility to comply with basic rules of court. 

McNeil v. United States, 508 U.S. 106, 113 (1993).

The magistrate judge first addressed plaintiff’s First

Amendment claim that the counseling sessions required by his

community control violated the doctrine of separation of church and

state. The conclusory allegations in the complaint include no

facts showing how the counseling sessions ran afoul of the First

Amendment separation requirement. However, even assuming the

allegations are sufficient, the magistrate judge concluded that

this claim is barred by the two-year statute of limitations

applicable to §1983 claims in Ohio because plaintiff’s probation

expired in 2013. See Browning v. Pendleton, 869 F.2d 989 (6th Cir.

1989). A complaint showing on its face that relief is barred by an

affirmative defense is properly subject to dismissal for failure to

state a claim upon which relief can be granted. Rauch v. Day and

Night Manuf. Corp., 576 F.2d 697, 702 (6th Cir. 1978)(holding that

a limitations defense may be raised by a Rule 12 motion); see also

New England Health Care Employees Pension Fund v. Ernst & Young,

LLP, 336 F.3d 495, 501 (6th Cir. 2003)(dismissal on limitations

ground).

In his objection, plaintiff argues that his First Amendment

claim constituted a continuing violation because he was detained

based on a verbal probation holder. However, the alleged injury

involved in his First Amendment claim was the condition that he

attend counseling sessions from 2008 to 2013 which somehow violated

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the requirement of separation of church and state. The complaint

does not allege that plaintiff was required to attend counseling

sessions after his community control expired in 2013. Any First

Amendment violation stemming from the counseling sessions was

separate and distinct in kind from the alleged illegal detention in

2016. The magistrate judge correctly concluded that plaintiff’s

First Amendment claim is barred by the statute of limitations. The

complaint fails to state a claim under the First Amendment.

The magistrate judge also addressed plaintiff’s illegal

detention claims, construing them as claims under the Fourth and

Fourteenth Amendments. The magistrate judge correctly noted that

an agency of county government such as the Fairfield County

Probation Department may be sued under §1983 if the alleged

constitutional tort was attributable to a policy statement,

ordinance, regulation, decision officially adopted and promulgated

by that body’s officers, or a governmental custom. See City of St.

Louis v. Praprotnik, 485 U.S. 112, 121 (1988). The magistrate

judge concluded that plaintiff failed to plead any facts showing

the existence of a county policy or custom that may have caused the

alleged constitutional deprivation, and that the Fourth and

Fourteenth Amendment claims failed to state a claim on which relief

may be granted.

In his objection, plaintiff states that under Ohio law, a term

of community control is limited to a maximum of five years, and

that his five-year term had clearly expired at the time of his

detention. However, plaintiff’s objection fails to show that the

magistrate judge erred in concluding that the complaint did not

allege the existence of a policy or custom which resulted in

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plaintiff’s detention. The court agrees with the conclusion of the

magistrate judge that the complaint fails to state a claim for

relief under the Fourth and Fourteenth Amendment. 

For the foregoing reasons, the court overrules plaintiff’s

objection (Doc. 4), and adopts the magistrate judge’s report and

recommendation (Doc. 3). This action is hereby dismissed pursuant

to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a claim for

which relief may be granted. However, in regard to plaintiff’s

Fourth and Fourteenth Amendment claims alleging illegal detention,

plaintiff is hereby granted leave to file an amended complaint. If

plaintiff wishes to file an amended complaint alleging any

additional facts regarding whether his detention was due to some

policy or custom of the Fairfield County Probation Department, such

amended complaint shall be filed no later than thirty days from the

date of this order. The clerk shall defer entering a final

judgment in this case until after the thirty-day period has run.

Date: August 10, 2018 s/James L. Graham 

 James L. Graham

 United States District Judge

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