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Nutt v. Seta

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

August 5, 2019

BRANDON NUTT, Plaintiff,
v.
P.O CHRISTOPHER SETA, et al., Defendants.

          Dlott, J.

          ORDER AND REPORT AND RECOMMENDATION

          STEPHANIE K. BOWMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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).

         In 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).

         Congress 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)).

         “A 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 unadorned, the-defendant-unlawfully-harmed-me 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).

         In the 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).

         As to 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).

         Plaintiff also names the Cincinnati Police Department District 2 as a defendant to this action, based on a theory of municipal liability. (See id.).

         Plaintiff 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.

         For relief, plaintiff seeks monetary damages. (Id. at PageID 22).

         At this 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.

         First, 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 ...

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