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McCoy v. Shepherd

August 2, 2006

CHARLES MCCOY, PLAINTIFF,
v.
ANTHONY W. SHEPHERD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Norah McCann King

OPINION AND ORDER

This matter is before the Court for consideration of a motion to dismiss (Doc. # 15) filed by Defendants, Anthony W. Shepherd, April D. Martin, Mark Emde, and William Tittle, a memorandum in opposition (Doc. # 17) filed by Plaintiff, Charles McCoy, and a reply memorandum filed by Defendants (Doc. # 18). For the reasons that follow, the Court finds the motion not well taken.

I. Background

In his Complaint--the factual contentions of which the Court accepts as true for the present inquiry*fn1 --Plaintiff, Charles McCoy, asserts that he was arrested in his home on June 25, 2004 by three City of Heath police officers. Plaintiff contends that in the course of making this arrest, Sergeant April D. Martin, Officer Marke Emde, and Officer William Tittle applied excessive force that resulted in injuries and violation of his civil rights.*fn2

In February 2006, Plaintiff filed two complaints over the incident, one with Heath Police Chief Anthony W. Shepherd and one with the internal affairs unit of the City of Columbus Police Department. After neither complaint apparently produced the desired results, Plaintiff initiated the instant pro se action in this Court on April 11, 2006. Plaintiff seeks monetary damages or, alternatively, official reprimands against the named defendants.*fn3 Defendants responded to Plaintiff's Complaint by filing a motion to dismiss. (Doc. # 15.) The parties have completed briefing on the motion, and the motion is now ripe for disposition.

II. Discussion

A. Standard Involved

Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) provides that an action may be dismissed for lack of subject matter jurisdiction. Under the Federal Rules of Civil Procedure, "[p]laintiffs have the burden of proving jurisdiction in order to survive a Rule 12(b)(1) motion ...." Weaver v. Univ. of Cincinnati, 758 F. Supp. 446, 448 (S.D. Ohio 1991) (citing Moir v. Greater Cleveland Reg'l. Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)). See also Rapier v. Union City Non-Ferrous, Inc., 197 F. Supp. 2d 1008, 1012 (S.D. Ohio 2002) (citing McNutt v. General Motors Acceptance Corporation of Indiana, Inc., 298 U.S. 178, 189 (1936); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)) ("The plaintiff bears the burden of establishing, by a preponderance of the evidence, the existence of federal subject matter jurisdiction"). Moreover, this Court may resolve any factual disputes when adjudicating a defendant's jurisdictional challenge. See Moir, 895 F.2d at 269.

In contrast to Rule 12(b)(1), Rule 12(b)(6) requires an assessment of whether a plaintiff has set forth claims upon which relief may be granted. For the purposes of the analysis under Rule 12(b)(6), a court must construe the complaint in favor of the plaintiff, accept the factual allegations contained in the complaint as true, and determine whether the plaintiff can prove no set of facts in support of his or her claims. Goad v. Mitchell, 297 F.3d 497, 500 (6th Cir. 2002) (citing Kostrzewa v. City of Troy, 247 F.3d 633, 638 (6th Cir. 2001)); Weaver, 758 F. Supp. at 448 (citing Jones v. Sherrill, 827 F.3d 633, 638 (6th Cir. 2001)). In other words, "a complaint will be dismissed pursuant to Rule 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." The Limited, Inc. v. PDQ Transit, Inc., 160 F. Supp. 2d 843, 843 (S.D. Ohio 2001) (citing Rauch v. Day & Night Mfg. Corp., 576 F.2d 697, 702 (6th Cir. 1978)).

Although pro se complaints are not subject to the same standard as those prepared by an attorney, Haines v. Kerner, 404 U.S. 519, 520 (1972), such complaints must still meet the basic, minimal pleading requirements, Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). A pro se plaintiff must assert more than bare legal conclusions or unwarranted factual inferences in order to overcome a motion pursuant to Rule 12(b)(6). See Gregory v. Shelby County, Tennessee, 220 F.3d 433, 446 (6th Cir. 2000).

B. Analysis

Defendants first argue that dismissal is appropriate under Rule 12(b)(1) because Plaintiff's Complaint fails to assert a proper basis for the exercise of federal jurisdiction under either 28 U.S.C. § 1331 (federal question jurisdiction) or 28 U.S.C. § 1332 (diversity jurisdiction). Because the former contention is incorrect, the Court need not and does not reach the second ground for dismissal.

Defendants argue that "Plaintiff fails to assert any claims in his Complaint which arise under the Constitution, laws, or treaties of the United States." (Doc. # 15, at 4.) Plaintiff's pleading twice makes reference to the application of "excessive force" in the course of his arrest, however, and he states that Defendant Shepherd declined to investigate his departmental complaint over ...


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