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Schuler v. Village of Newcomerstown

United States District Court, N.D. Ohio, Eastern Division

March 31, 2017




         This matter is before the Court on the motion of defendants Newcomerstown Police Department (“NPD”), NPD Officer Bryan Eubanks (“Eubanks”), NPD Chief Gary Holland (“Holland”), and the Village of Newcomerstown (“Village”) (collectively “Newcomerstown defendants” or “defendants”) for partial judgment on the pleadings. (Doc. No. 9 [“Mot.”].) Plaintiff Polyanna Schuler (“plaintiff” or “Schuler”) has opposed the motion (Doc. No. 11 [“Opp'n”]), to which defendants replied (Doc. No. 12 [“Reply”]). For the reasons that follow, defendants' motion for partial judgment on the pleadings is granted.

         I. BACKGROUND

         A. The Complaint

         This case arises from a dispute between plaintiff and defendants Emerald Barnes (“Barnes”) and Susan Addy (“Addy”) concerning a vehicle. During all relevant times, defendant Holland was chief of the NPD, and Eubanks was an NPD officer.[1] The following factual background is taken from plaintiff's complaint. (Doc. No. 1 (Complaint [“Compl.]).)

         On or about August 19, 2014, plaintiff and Barnes purchased a 2013 Hyundai Sonata (“vehicle”) from Decosky Ford, Inc. The purchase was financed by Wells Fargo, and plaintiff signed as the buyer and Barnes as the co-buyer. (Id. ¶¶ 17-18.) The vehicle was titled to Barnes, and she made the payments and possessed the vehicle until December 2014. (Id. ¶ 19; Doc. No. 8-1.)

         Addy took possession of the vehicle from Barnes in January 2015 and began making the payments because Barnes was moving to Japan. (Id. ¶¶ 20-21.) In February 2015, plaintiff contacted Wells Fargo and requested that her name be added to the title of the vehicle. (Id. ¶ 22.) On April 17, 2015, plaintiff “reclaimed” the vehicle from Addy. (Id. ¶ 24.) That same day, NPD Officer Jennifer Lowery[2] (“Lowery”) contacted plaintiff regarding the vehicle, as did Coshocton County Sheriff Deputy Mark Sharrock[3] (“Sharrock”). According to the complaint, Sharrock told plaintiff that the NPD “was threatening to list the vehicle as stolen and issue a felony warrant for [p]laintiff's arrest.” (Id. ¶¶ 24-25.) Based on the call from Lowery and “threats of felony charges” by the NPD, plaintiff drove to the NPD and surrendered the vehicle. At the NPD, plaintiff alleges that she “was again threatened with felony charges and incarceration” by unknown NPD officers. (Id. ¶ 26.) After plaintiff left the NPD, she was stopped by an unknown NPD officer to obtain any “extra keys” to the vehicle. Plaintiff alleges that the sole basis for the stop was to obtain the keys and plaintiff was not issued a citation. (Id. ¶ 27.)

         Lowery submitted a “prosecution packet” to the Tuscawaras County Prosecutor in connection with the events of April 17, 2015. (Id. ¶ 28.) The prosecutor declined to prosecute because the matter appeared to be civil in nature and there was no evidence to support felony charges. (Id. ¶ 30; Doc. No. 1-3.)

         In June 2015, Addy contacted plaintiff and requested that she take possession of the vehicle, and plaintiff did so. (Id. ¶ 29.) In July 2015, the title of the vehicle was modified to include plaintiff's name, and plaintiff made the payments to Wells Fargo. (Id. ¶¶ 31, 32; Doc. No. 1-4.)

         Barnes returned to Ohio in January 2016 and requested that plaintiff return the vehicle to her, and plaintiff agreed to do so if plaintiff's name was removed from the title and Wells Fargo loan. (Id. ¶¶ 35, 36.) Barnes, however, was not able to obtain a loan for the vehicle herself, and plaintiff and Barnes reached an impasse. (Id. ¶¶ 36-37.) Barnes advised plaintiff she would report the vehicle as stolen since the vehicle was titled in her name. (Id. ¶ 38.)

         Plaintiff claims that Holland called her on February 2, 2016 “with the express purpose of intimidating [p]laintiff into surrendering the vehicle” to Barnes, and “renewed threats of criminal prosecution and arrest.” (Id. ¶ 39.) Plaintiff does not allege that Eubanks ever spoke directly to her regarding the vehicle, but that her attorney spoke to Eubanks. According to the complaint, Eubanks stated to plaintiff's attorney that the NPD would proceed with charges against plaintiff. (Id. ¶¶ 39, 40.) The prosecutor's office, however, advised plaintiff's attorney that charges would not be brought. (Id. ¶ 41.) When plaintiff's attorney contacted Holland and requested copies of the warrants for plaintiff's arrest and seizure of the vehicle, Holland admitted that there were no warrants, and “confessed” that Holland had permitted Eubanks to “bluff” plaintiff in an effort to have her turn over the vehicle. Plaintiff also alleges that Holland admitted he contacted Wells Fargo to obtain plaintiff's information regarding the vehicle, and told her attorney that he would not allow Eubanks to press charges. (Id. ¶¶ 43-45.)

         Based on these facts, plaintiff filed a 10 count complaint against the Newcomerstown defendants, Addy, Barnes, and “unknown individuals”-three federal claims alleging violations of the Fourth Amendment pursuant to 42 U.S.C. § 1983 (counts one, eight, and nine), six mixed federal and state claims[4] (counts two through seven), and one state claim (count 10) alleging intentional infliction of emotional distress.

         B. Motion for Judgment on the Pleadings

         The Newcomerstown defendants move for judgment on multiple bases. First, defendants move for dismissal of plaintiff's federal and state law claims against NPD on the grounds that the NPD is not sui juris. Second, defendants move for dismissal of plaintiff's state law claims against the Village, Holland, and Eubanks (except the conspiracy claims and count 10[5]) on the pleadings, and on the ground that they are immune from suit under Ohio Rev. Code § 2744. Third, defendants move for judgment on plaintiff's federal claims (except the conspiracy claims) on the pleadings, and on the ground that they are entitled to qualified immunity.

         The Court will first address defendants' motion as to plaintiff's federal claims, and then plaintiff's state law claims.


         A. The NPD is not sui juris

         The Newcomerstown defendants move for dismissal of NPD on the grounds that it is not sui juris absent a positive statutory authority, and Ohio does not have a law that permits parties to sue local law enforcement agencies directly. (Mot. at 74[6] (citing Elkins v. Summit Cnty., Ohio, No. 5:06-CV-3004, 2008 WL 622038, at *6 (N.D. Ohio Mar. 5, 2008) (citing Papp v. Snyder, 81 F.Supp.2d 852, 857 n.4 (N.D. Ohio 2000)).) Plaintiff concedes that the NPD is not sui juris. (Opp'n at 102-03.)

         The defendants have correctly stated the law with respect to this issue, and the Court finds that the NPD is not sui juris. See Petty v. Cnty. of Franklin, Ohio, 478 F.3d 341, 347 (6th Cir. 2007). Accordingly, defendant Newcomerstown Police Department is dismissed from this case in its entirety with prejudice, and the Court will not further address plaintiff's claims against the NPD.

         B. Defendants Addy and Barnes

         The Court's ruling herein does not address plaintiff's claims against defendants Addy and Barnes, and may not be construed as a ruling on plaintiff's claims against those defendants. That said, the docket in this case does not reflect that defendants Addy or Barnes have been served with the complaint in accordance with the requirements of the Fed.R.Civ.P. 4(m). Plaintiff shall have until April 17, 2017, to show cause why defendants Addy and Barnes should not be dismissed from this action as a consequence of plaintiff's failure to serve these defendants and prosecute her claims against them. See Warrior Imports, Inc. v. 2 Crave, 317 F.R.D. 66, 69 (N.D. Ohio 2016).

         C. Leave to Amend

         In opposing defendants' motion, plaintiff states that she believes her complaint sets forth a clear and concise recitation of her claims. (Opp'n at 113.) That said, plaintiff offered to amend the complaint if, in the Court's view, a more carefully drafted complaint might state a claim. (Id.) Plaintiff does not indicate, however, what allegations, if any, would be clarified by an amended complaint. Plaintiff has not moved to amend, and defendants have not moved for a more definite statement of the complaint. The Court finds that there is no basis upon which to invite plaintiff to amend her complaint before ruling on defendants' motion.


         Fed. R. Civ. P. 12(c) provides that “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” The standard of review for a motion for judgment on the pleadings is the same as for a motion to dismiss for failure to state a claim for relief under Rule 12(b)(6).E.E.O.C. v. J.H. Routh Packing Co., 246 F.3d 850, 851 (6th Cir. 2001) (citingGrindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998)). “For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.”JP Morgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (quotingS. Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)). The district court, however, “need not accept as true legal conclusions or unwarranted factual inferences.”Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999) (citingMorgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).

         “To survive a motion to dismiss [or for judgment on the pleadings], a complaint must contain 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”Id. at 678 (citing Twombly, 550 U.S. at 555). The complaint “must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quotation marks and citations omitted) (emphasis in original). “The motion is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.”Paskvan v. City of Cleveland Civil Serv. Comm'n, 946 F.2d 1233, 1235 (6th Cir. 1991) (citation omitted).

         In considering a Rule 12(c) motion, the allegations in the complaint are the Court's primary focus. The Court may also consider the answer, documents attached as exhibits to the pleadings, and “‘matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint[.]'” McGath v. Hamilton Local Sch. Dist., 848 F.Supp.2d 831, 836-37 (S.D. Ohio 2012) (quoting Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (further citation omitted)).


         Pursuant to 42 U.S.C. § 1983, plaintiff alleges that certain rights under the Fourth Amendment of the United States Constitution were violated by the defendants. “Section 1983 ‘is not itself a source of substantive rights, ' but merely provides ‘a method for vindicating federal rights elsewhere conferred.'”Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quotingBaker v. McCollan, 443 U.S. 137, 144, n.3, 99 S.Ct. 2689, 61 L.Ed. 2D 433 (1979)). Title 42 U.S.C. § 1983 provides in relevant part that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

         “The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived [her] of a right secured by the ‘Constitution and laws' of the United States. Second, the plaintiff must show that the defendant deprived [her] of this constitutional right ‘under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory.' This second element requires that the plaintiff show that the defendant acted ‘under color of law.'” Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). The second element with respect to Holland and Eubanks is not an issue in this case.

         Turning to the first element, “[t]he Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]'”Bletz v. Gribble, 641 F.3d 743, 754 (6th Cir. 2011) (quoting U.S. Const. amend. IV). A seizure occurs when “‘by means of physical force or a show of authority, [an individual's] freedom of movement is restrained.'” Id. (quotingUnited States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). To state a claim under the Fourth Amendment, a plaintiff must allege that: (1) the defendant's actions constituted a search or seizure within the meaning of the Fourth Amendment; and (2) defendant's actions were unreasonable in light of the surrounding circumstances. See Collins v. Nagle, 892 F.2d 489, 493-94 (6th Cir. 1989).

         A. Count One[7]

         Plaintiff alleges multiple Fourth Amendment violations against different defendants under count one.

         First, plaintiff claims that: (1) Holland violated her right to be free from unreasonable seizure of property by refusing to allow plaintiff to reclaim the vehicle in possession of Addy (purportedly a relative of Holland (Compl. ¶ 23)), and threatening her with criminal prosecution if she did so (id. ¶ 49); and (2) that Holland and Eubanks violated her right to be free from unreasonable seizure of property by harassing her with unlawful threats of criminal prosecution which prevented her use of the vehicle (id. ¶ 53).

         Defendants argue that they are entitled to judgment on these claims because threats alone do not establish a cognizable claim under § 1983. Plaintiff “agrees with this legal conclusion[, ]” but contends that this law does not foreclose plaintiff's allegations because defendants did not only make verbal threats, but also engaged in threatening behavior, an unlawful traffic stop, and sought to initiate a meritless criminal case against her. (Opp'n at 106 (citing Compl. ¶¶ 24-28 (“2015 events”) and 39-45 (“2016 events”)).) Without citing a single case in support, plaintiff contends that these allegations support a civil rights violation. Id.

         With the exception of plaintiff's conspiracy claims in counts 3 and 4, which are not now before the Court, there are no allegations in the complaint that Holland and Eubanks did anything more than verbally threaten plaintiff with criminal prosecution. (See Compl. ¶¶ 39-45.) Mere words, even spoken threats of serious harm or arrest, however, do not constitute an infringement of a constitutional right and are not actionable under § 1983. Thacker v. City of Columbus, 328 F.3d 244, 258 (6th Cir. 2003) (threats of arrest alone do not support a constitutional claim) (citing Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir. 1989) (“Appellant's asserted fear from [verbal threats], however, is not an actual infringement of a constitutional right, and thus, it is not actionable under section 1983.”)); Meyers v. Mitrovich, No. 1:14CV1604, 2015 WL 413804, at *13 (N.D. Ohio Jan. 30, 2015) (fear from threats alone is not an actual infringement of a constitutional right) (citing Emmons, 874 F.2d at 353). Defendants are entitled to judgment on the pleadings with respect to plaintiff's Fourth Amendment claim against Holland and Eubanks regarding the 2016 events.

         Plaintiff's factual allegations concerning the 2015 events do not allege that Holland or Eubanks were involved in the telephone calls made to plaintiff, her surrender of the vehicle to the NPD, the traffic stop by an unknown NPD officer for the vehicle's keys, or the “prosecution packet” prepared by Lowery. (See Compl. ¶¶ 24-28.) To the extent that plaintiff's Fourth Amendment claim against Holland and Eubanks regarding the 2015 events is based upon respondeat superior liability, that claim fails on the pleadings.

         Supervisors are not liable for the unconstitutional conduct of subordinates unless the supervisor “at least implicitly authorized, approved, or knowingly acquiesced in” the subordinate's unconstitutional conduct. McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 470 (6th Cir. 2006). “[A] prerequisite of supervisory liability under § 1983 is unconstitutional conduct by a subordinate of the supervisor.” McQueen, 433 F.3d at 470. These prerequisites cannot be established as to Holland and Eubanks with respect to the 2015 events because plaintiff's factual allegations concerning the 2015 events include only Lowery (who is not a defendant in this action and the constitutionality of her conduct is not at issue) and unknown NPD officers or employees. (See Compl. ¶¶ 24-28.)

         Defendants are entitled to judgment on the pleadings with respect to these Fourth Amendment claims against Holland and Eubanks.

         Second, plaintiff alleges in count 1 that Holland violated her right to be free from unreasonable searches and seizures under the Fourth Amendment by obtaining her private financial information from Wells Fargo regarding the vehicle without a warrant, criminal investigation, or probable cause (Id. ¶ 52). Defendants argue that they are entitled to judgment as a matter of law with respect to plaintiff's federal claim for invasion of privacy because: (1) the documents were obtained by a grand jury subpoena (a copy of which attached to defendant's answer at Doc. No. 8-2); and (2) even if the documents were not obtained by grand jury subpoena, individuals do not have a privacy interest protected by the Fourth Amendment with respect to papers possessed by a financial institution. (See Mot. at 75-76.)

         In response, plaintiff ignores defendants' argument regarding the subpoena, and argues that defendants' reliance on U.S. v. Miller[8] is misplaced: “In Miller, the Supreme Court was ‘governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of [an individual].'” (Opp'n at 105 (quoting Miller, 425 U.S. at 444).) Apparently in an attempt to distinguish Miller, plaintiff contends that the Court is required to accept as true plaintiff's allegations that her records were “obtained in the absence of a warrant, criminal investigation, or probable cause.” (Id. at 105 (citing Compl. ¶ 43).) Thus, plaintiff argues, the “[d]efendants' argument relative to the legality of Chief Holland's conduct is without merit.” (Id. at 104-05.) Essentially, plaintiff argues that the Court should not consider documents properly before the Court on a motion for judgment on the pleadings-or other factual allegations in her complaint-simply because the complaint contains a single allegation to the contrary.

         While it is true that when considering a motion for judgment on the pleadings the Court is required to accept as true all the well-pleaded material allegations in the complaint, the Court is not required to accept legal conclusions, unwarranted allegations, or factual inferences in the complaint “‘contradicted by public records and other evidentiary materials of which the Court may take judicial notice.'” Marshall v. Nationstar Mortg., LLC, No. 1:12-CV-852, 2015 WL 1042197, at *3 (W.D. Mich. Mar. 10, 2015) (quotingMcGee v. City of Cincinnati Police Dep't, No. 1:06-CV-726, 2007 WL 1169374, at *2 (S.D. Ohio Apr. 18, 2007));Mixon, 193 F.3d at 400.

         Plaintiff claims that a prosecution packet was prepared by Lowery and provided to the Tuscarawas County prosecutor (Compl. ¶ 28), that the prosecutor declined to prosecute based on insufficient evidence (id. ¶ 30), and attaches the prosecutor's letter to her complaint (Doc. No. 1-3). Defendants' answer attaches the subpoena issued to Wells Fargo in connection with that inquiry, which states that the required information should be provided to Lowery at the NPD. (Doc. No. 8-2.) The subpoena may be properly considered by the Court in connection with defendants' motion. McGath, 848 F.Supp.2d at 836-37. But even absent a subpoena, plaintiff does not have a Fourth Amendment privacy interest in documents and information maintained by Wells Fargo. See Miller, 425 U.S. at 440-43; see also Crawford v. United States Dep't of the Treasury, No. 3:15-CV-250, 2015 WL 5697552, at *11 (S.D. Ohio Sept. 29, 2015) (citing Miller) (there is no reasonable expectation of privacy in information contained in bank records because the records only contain information voluntarily conveyed to the banks and there is no legitimate expectation of privacy in information voluntarily turned over to third parties).

         Defendants are entitled to judgment with respect to plaintiff's claim in count 1 that Holland violated the Fourth Amendment by obtaining her vehicle loan information from Wells Fargo.

         B. Count Two[9]

         Count two alleges a federal abuse of process claim against Holland, claiming he violated the Fourth Amendment by threating plaintiff with criminal charges and submitting a “prosecution packet” to the prosecutor without probable cause in order to intimidate her into surrendering the vehicle. Defendants move for judgment on this claim on the ground that an abuse of process claim is not cognizable under § 1983. (Mot. at 77.)

         The Sixth Circuit “has consistently declined to recognize an abuse-of-process claim under 42 U.S.C. § 1983.” Moore v. WesBanco Bank, Inc., 612 F.App'x 816, 823 (6th Cir. 2015) (citing Rapp v. Dutcher, 557 F.App'x 444, 448 (6th Cir. 2014) (“[A] federal abuse of process claim does not exist in the law of this circuit.”) (further citation omitted)). In opposing the motion, plaintiff points the Court to no legal authority showing that an abuse of process claim is cognizable under § 1983 in the Sixth Circuit.

         Defendants' motion for judgment as to all defendants on plaintiff's § 1983 claim for abuse of process is granted. See Grise v. Allen, No. 5:11-195-KKC, 2016 WL 1261077, at *6 (E.D. Ky. Mar. 30, 2016) (citing Moore, 612 F.App'x at 823 (further citation omitted)).

         C. Count Three[10]

         Count three alleges a Fourth Amendment malicious prosecution claim against Holland, Eubanks, Barnes, and Addy, and includes a conspiracy allegation. Defendants argue that, because there are no allegations in the complaint that criminal proceedings were ever initiated against plaintiff, defendants are entitled to judgment on the pleadings. In response, plaintiff does not oppose defendant's arguments but, instead, observes that “[d]efendants have accurately articulated the legal standards associated with . . . § 1983 civil claims . . . for malicious prosecution, as well as the facts set forth in [p]laintiff's Complaint. Accordingly, [p]laintiff would merely defer to the Court relative to the federal . . . claims presented in Count Three.” (Opp'n at 107.)

         To succeed on a malicious prosecution claim premised upon a violation of the Fourth Amendment, a plaintiff must show that: (1) a criminal prosecution was initiated against the plaintiff and that the defendant made, influenced, or participated in the decision to prosecute; (2) there was a lack of probable cause for the criminal prosecution; (3) as a consequence of a legal proceeding plaintiff suffered a deprivation of liberty under the Fourth Amendment apart from the initial seizure; and (4) the criminal proceeding was resolved in plaintiff's favor. Sykes v. Anderson, 625 F.3d 294, 308-09 (6th Cir. 2010). In order for plaintiff to avoid an adverse ruling on a motion for judgment on the pleadings, the complaint must set forth allegations sufficient to make out the elements of ...

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