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State ex rel. Marcum v. Duchak

United States District Court, S.D. Ohio, Western Division, Dayton

February 23, 2018


          Walter H. Rice District Judge.


          Michael R. Merz United States Magistrate Judge.

         This 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)[1]and Defendants have filed a joint Reply in Support (ECF No. 37).

         Both 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.

         “The 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).

         The 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 unlikely”).

Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007).

[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 phase”).

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.

         The Complaint

         Mr. 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[2] 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.

         In the 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.

         Beginning 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 suspended).

         Beginning 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.

         At 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.

         At page 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.

         The Cause of Action under 42 U.S.C. § 1983

         42 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 Columbia.

         The 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).

         Marcum 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.

         Defendant ...

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