United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE.
an inmate at the Madison Correctional Institution, has filed
a prisoner civil rights complaint pursuant to 42 U.S.C.
§ 1983. By separate Order, plaintiff has been granted
leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. This matter is before the Court for a sua
sponte review of the complaint to determine whether the
complaint, or any portion of it, should be dismissed because
it is frivolous, malicious, fails to state a claim upon which
relief may be granted or seeks monetary relief from a
defendant who is immune from such relief. See Prison
Litigation Reform Act of 1995 § 804, 28 U.S.C. §
1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b).
enacting the original in forma pauperis statute,
Congress recognized that a “litigant whose filing fees
and court costs are assumed by the public, unlike a paying
litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits.”
Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting
Neitzke v. Williams, 490 U.S. 319, 324 (1989)). To
prevent such abusive litigation, Congress has authorized
federal courts to dismiss an in forma pauperis
complaint if they are satisfied that the action is frivolous
or malicious. Id.; see also 28 U.S.C.
§§ 1915(e)(2)(B)(i) and 1915A(b)(1). A complaint
may be dismissed as frivolous when the plaintiff cannot make
any claim with a rational or arguable basis in fact or law.
Neitzke v. Williams, 490 U.S. 319, 328-29 (1989);
see also Lawler v. Marshall, 898 F.2d 1196, 1198
(6th Cir. 1990). An action has no arguable legal basis when
the defendant is immune from suit or when plaintiff claims a
violation of a legal interest which clearly does not exist.
Neitzke, 490 U.S. at 327. An action has no arguable
factual basis when the allegations are delusional or rise to
the level of the irrational or “wholly
incredible.” Denton, 504 U.S. at 32;
Lawler, 898 F.2d at 1199. The Court need not accept
as true factual allegations that are “fantastic or
delusional” in reviewing a complaint for frivolousness.
Hill v. Lappin, 630 F.3d 468, 471 (6th Cir. 2010)
(quoting Neitzke, 490 U.S. at 328).
also has authorized the sua sponte dismissal of
complaints that fail to state a claim upon which relief may
be granted. 28 U.S.C. §§ 1915 (e)(2)(B)(ii) and
1915A(b)(1). A complaint filed by a pro se plaintiff
must be “liberally construed” and “held to
less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)). By the same token, however, the
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 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Hill, 630 F.3d at 470-71 (“dismissal
standard articulated in Iqbal and Twombly
governs dismissals for failure to state a claim” under
§§ 1915A(b)(1) and 1915(e)(2)(B)(ii)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). The Court must accept all
well-pleaded factual allegations as true, but need not
“accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555 (quoting
Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Although a complaint need not contain “detailed factual
allegations, ” it must provide “more than an
accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). A pleading that offers
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders “naked
assertion[s]” devoid of “further factual
enhancement.” Id. at 557. The complaint must
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.”
Erickson, 551 U.S. at 93 (citations omitted).
complaint, plaintiff brings a claim of malicious
prosecution-and other related federal and state law
claims-against defendants based on the initiation of a search
warrant and criminal proceedings against him. Specifically,
plaintiff alleges that on October 12, 2015 defendants officer
Christopher Seta and Sergeant Barge, used knowingly false and
conclusory statements to manufacture probable cause to search
a residence that resulted in ten drug-related charges being
brought against plaintiff. Plaintiff claims that on June 10,
2018 he was acquitted of all charges stemming from the
search. (Doc. 1-2, Complaint at PageID 19-20).
the remaining defendants, plaintiff seeks to hold defendants
Vollner, Greene, and John Doe officers liable for their
failure to intervene. He claims these defendants had a duty
to review Seta's evidence, but “failed to intervene
in order to prevent the Constitutional violations of my
rights.” (Id. at PageID 21).
also names the Cincinnati Police Department District 2 as a
defendant to this action, based on a theory of municipal
liability. (See id.).
claims that he suffered emotional distress in fighting the
charges against him for three years. During this time,
plaintiff claims he suffered from seizures and thoughts of
suicide. According to plaintiff, as a result of this incident
he has been diagnosed with epilepsy and sought mental health
treatment for depression and stress.
relief, plaintiff seeks monetary damages. (Id. at
stage in the proceedings, without the benefit of briefing by
the parties to this action, the undersigned concludes
plaintiff's claims against defendants Seta and Barge in
their individual capacities are deserving of further
development and may proceed at this juncture. See 28
U.S.C. §§ 1915(e)(2)(B) & 1915A(b). However,
plaintiff's remaining claims should be dismissed for
failure to state a claim upon which relief may be granted.
to the extent that plaintiff has named the Cincinnati Police
Department District 2 or sought to hold the named defendants
liable in their official capacities, these claims should be
dismissed. Plaintiff has failed to state a viable claim
against the Cincinnati Police Department because it is not an
entity that is capable of being sued. See Davis v. Bexley
Police Dep't, No. 2:08cv750, 2009 WL 414269, at *2
(S.D. Ohio Feb. 17, 2009) (citing Jones v. Marcum,
197 F.Supp.2d 991, 997 (S.D. Ohio 2002)); see also
Schaffner v. Pell, No. 2:10cv374, 2010 WL 2572777, at *2
(S.D. Ohio June 21, 2010) (citing Tysinger v. Police
Dep't of City of Zanesville, 463 F.3d 569, 572 (6th
Cir. 2006)) (“A police department is not a juridical
entity subject to suit under Ohio law.”). As the
district court explained in Davis, supra, 2009 WL
414269, at *2:
Police departments are not independent government entities.
They are only the vehicles through which municipalities
fulfill their policing functions. Williams v. Dayton
Police Dep't,680 F.Supp. 1075, 1080 (S.D. Ohio
1987). Thus, police departments are not proper § 1983
defendants as they are “merely ...