United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge.
REPORT AND RECOMMENDATIONS ON MOTIONS TO
Michael R. Merz United States Magistrate Judge.
case is before the Court on Motion to Dismiss of Defendant
Steve Layman (ECF No. 9) and a joint Motion to Dismiss of
Defendants Dave Duchak, Elizabeth Gutmann, and Rob Davie (ECF
No. 7). Plaintiff has filed a combined Memorandum in
Opposition (ECF No. 32)and Defendants have filed a joint Reply
in Support (ECF No. 37).
Motions are made under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief can be granted. A motion for
involuntary dismissal is a dispositive pre-trial motion on
which an assigned Magistrate Judge must make a recommended
decision in the first instance.
purpose of a motion under Rule 12(b)(6) is to test the formal
sufficiency of the statement of the claim for relief; it is
not a procedure for resolving a contest about the facts or
merits of the case.” Wright & Miller, Federal
Practice and Procedure: Civil 2d §1356 at 294 (1990);
see also Gex v. Toys “R” Us, 2007 U.S.
Dist. LEXIS 73495, *3-5 (S.D. Ohio, Oct. 2, 2007); Mayer
v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993),
citing Nishiyama v. Dickson Cty.,
Tennessee, 814 F.2d 277, 279 (6th Cir.
1987). Stated differently, a motion to dismiss under
Fed.R.Civ.P. 12(b)(6) is designed to test only the
sufficiency of the complaint. Riverview Health
Institute LLC v. Medical Mutual of Ohio, 601 F.3d
505, 512 (6th Cir. 2010).
test for dismissal under Fed.R.Civ.P. 12(b)(6) has been
restated 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, 104 L.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
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.Ill.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 discovery
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). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its fact, '” Doe v.
Miami University, __F.3d__, 2018 U.S. App. LEXIS 3075,
*12-13 (6th Cir. Feb. 9, 2018), quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), in turn
quoting Twombly, 550 U.S. at 570.
Marcum brought this action pro se in the Miami County Common
Pleas Court under 42 U.S.C. § 1983 for monetary damages
and declaratory, injunctive, habeas corpus, and mandamus
relief. Honorable Elizabeth S. Gutmann, then a Judge of the
Miami County Municipal Court, and Steve Layman, Miami County
Public Defender, are sued in their official capacities only.
Miami County Sheriff Dave Duchak is sued in both individual
and official capacities. Correctional Officer Rob David is
mentioned in the caption of the Complaint, but not in the
section indicating the capacities in which Defendants are
sued; that omission is corrected at ECF No. 2, PageID 243
where Marcum indicates he is suing Davie in both individual
and official capacities. Assistant County Prosecutor Stacy
Wall is sued only in her official capacity.
Complaint Marcum alleges he was arrested for breaking and
entering on October 5, 2017, and jailed pending initial
appearance (ECF No. 2, PageID 172-73). The next morning he
had a video arraignment before Judge Gutmann who set bond and
scheduled a preliminary hearing for October 12, 2017. When
Marcum appeared in person for that proceeding, Assistant
County Prosecutor Wall amended the charge from breaking and
entering, a fifth degree felony, to attempted breaking and
entering, a first degree misdemeanor and therefore within
Judge Gutmann's dispositional authority as a municipal
judge. Marcum, at Wall's urging, waived his right to
counsel for a change of plea and changed his plea to no
contest. Judge Gutmann then sentenced him to 180 days
confinement in the County Jail. Id. at 174-75.
Marcum promptly sought a new sentencing hearing and
threatened suit. Marcum claims he was not advised that
sentence could be imposed immediately after plea and that
Judge Guttmann declined to appoint counsel for appeal.
at page twelve of the Complaint (PageID 176), Marcum provides
a long disquisition on the right to counsel as recognized in
the series of the Supreme Court cases that begins with
Powell v. Alabama, 287 U.S. 45 (1932)(capital
cases), and proceeds through Gideon v. Wainwright,
372 U.S. 335 (1963)(felony cases), and Argersinger v.
Hamlin, 407 U.S. 25 (1972)(misdemeanor cases where
imprisonment is a possibility). See also Alabama v.
Shelton, 535 U.S. 654 (2002)(even if sentence is
at page twenty-four (PageID 189), Marcum seeks mandamus
relief to require the Sheriff to provide inmates with a
“free” phone call to contact an attorney or a
bondsman. At page fifty he alleges that the agreement between
the Miami County Sheriff's Office and the Miami County
Public Defender which “prohibits all inmates from
‘calling' the Public Defender's Office unless
the Public Defendant [sic] requests for such inmate to call
the office” is part of an illegal conspiracy (PageID
215). He references the Inmate Handbook to show the existence
of this policy. Defendant Layman appeared with Marcum at
arraignment and explained this policy, giving him the form to
request court-appointed counsel. Id. at PageID 216.
several points in the Complaint, Marcum complains of the
Miami County Jail's failure to comply with Ohio law and
the Constitution on the processing of inmate grievances,
e.g., at PageID 225. He also claims that the Miami County
Jail provides constitutionally inadequate access to materials
for legal research, citing particularly Bounds v.
Smith, 430 U.S. 817 (1977), and Lewis v. Casey,
518 U.S. 343 (1996). See, e.g. PageID 235.
seventy-four (PageID 239), Marcum complains that Correctional
Officer Rob Davie used excessive force against Marcum in
shackling and handcuffing him for transport to arraignment,
causing bleeding and bruising of Marcum's wrists and
ankles, and physical, psychological, and emotional pain. At
the same place, he avers that there are “rapid acts of
violence” at the Jail, making it unsafe and restricting
inmates' access to fresh air, sunlight, and exercise.
Cause of Action under 42 U.S.C. § 1983
U.S.C. § 1983, R.S. § 1979, 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 purposes of this section, any Act of
Congress applicable exclusively to the District of Columbia
shall be considered to be a statute of the District of
statute creates a cause of action sounding essentially in
tort on behalf of any person deprived of a constitutional
right by someone acting under color of state law. City of
Monterey v. Del Monte Dunes at Monterey, Ltd.,
526 U.S. 687, 709 (1999); Memphis Community School
District v. Stachura, 477 U.S. 299 (1986); Carey
v. Piphus, 435 U.S. 247 (1978); Monroe v. Pape,
365 U.S. 167 (1961). “The purpose of § 1983 is to
deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and
to provide relief to victims if such deterrence fails.”
Wyatt v. Cole, 504 U.S. 158, 161 (1992), citing
Carey, 435 U.S. at 254-57. In order to be granted
relief, a plaintiff must establish that the defendant
deprived him of a right secured by the United States
Constitution and the laws of the United States and that the
deprivation occurred under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988); Parratt v.
Taylor, 451 U.S. 527, 535 (1981); Flagg Brothers
Inc. v. Brooks, 436 U.S. 149, 155 (1978).
correctly avers in his Complaint that the state courts have
concurrent jurisdiction with the federal courts of cases
under 42 U.S.C. § 1983. However, because Marcum avers
that his claims, or at least some of them, arise under §
1983, removal to this Court was proper under 28 U.S.C.
§§ 1331 and 1441.