United States District Court, S.D. Ohio, Western Division, Dayton
District Judge Walter H. Rice
REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS OF
Michael R. Merz, United States Magistrate Judge
case is before the Court on Motion to Dismiss of Defendant
Stacy Wall (ECF No. 4) which Plaintiff opposes (ECF No. 5).
Wall's Motion cites no particular authority for
dismissal. Because the case has been removed to federal
court, the Motion must be evaluated under the Federal Rules
of Civil Procedure and this Court treats it as a motion to
dismiss for failure to state a claim upon which relief can be
granted under Fed.R.Civ.P. 12(b)(6).
Wall notes that she is purportedly sued in her official
capacity as an Assistant Miami County Prosecutor but that she
does not hold that office; rather, she is Law Director for
the City of Piqua, Ohio.
responds that to his knowledge Ms. Wall is the person who, on
October 12, 2017, advised him "to waive his right to
counsel" in the case then pending before Judge Gutmann
and was also the person who first advised him of the failure
of the Municipal Court to timely appoint counsel for him.
(ECF No. 5, PagelD 271-72). He speculates that on the
occasion in question, Ms. Wall was sitting in for the
assigned assistant county prosecutor. Marcum requests a full
evidentiary hearing on the Motion with the Court conducting
what would include what would amount to a lineup of Ms. Wall
and Ms. Lenee Brosh so that Mr. Marcum can identify which of
them is the person to whom he is referring.
gravamen of Marcum's complaint against Ms. Wall is
"that it is illegal, unethical, and unconstitutional for
prosecutors' to approach criminally accused defendants to
either incourage [sic] or advise them to 'waive'
their right to counsel." (Complaint, ECF No. 2, PagelD
184). At a later point he alleges ""[i]t is also a
conflict of interest as well as a structural error for any
prosecutor to give "legal advise [sic]" to a
criminal defendant that may incourage [sic] a defendant to
forfeit any of his constitutional rights. . ."
Id. at PagelD 185.
test for dismissal under Fed.R.Civ.P. 12(b)(6) has been
stated by the Supreme Court as follows:
Factual allegations must be enough to raise a right to relief
above the speculative level, see 5 C. Wright & A. Miller,
Federal Practice and Procedure § 1216, pp. 235-236 (3d
ed.2004)("[T]he pleading must contain something more ...
than ... a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action"), on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact), see, e.g., Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992,
152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S.
319, 327, 109 S.Ct. 1827, 104L.Ed.2d 338 (1989)(" Rule
12(b)(6) does not countenance ... dismissals based on a
judge's disbelief of a complaint's factual
allegations"); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded
complaint may proceed even if it appears "that a
recovery is very remote and unlikely").
Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555
[W]hen the allegations in a complaint, however true, could
not raise a claim of entitlement to relief, '"this
basic deficiency should ... be exposed at the point of
minimum expenditure of time and money by the parties and the
court.'" 5 Wright & Miller § 1216, at
233-234 (quoting Daves v. Hawaiian Dredging Co., 114
F.Supp. 643, 645 (D. Hawaii 1953)); see also Dura
[Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125
S.Ct. 1627, 161 L.Ed.2d 577 (2005)], at 346, 125 S.Ct. 1627;
Asahi Glass Co. v. Pentech Pharmaceuticals, Inc .,
289 F.Supp.2d 986, 995 (N.D.I11.2003) (Posner, J., sitting by
designation) ("[S]ome threshold of plausibility must be
crossed at the outset before a patent antitrust case should
be permitted to go into its inevitably costly and protracted
Twombly, 550 U.S. at 558; see also Association
of Cleveland Fire Fighters v. City of Cleveland, Ohio,
502 F.3d 545 (6th Cir. 2007).
U.S.C. § 1983, R.S. § 1979, the statute under which
Mr. Marcum brought suit, was adopted as part of the Act of
April 20, 1871, and reads, as amended:
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, except that in any action brought against a judicial
officer, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable. For the ...