Anderson v. County of Hamilton, Case Action No. 1:09–cv–798.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Citation780 F.Supp.2d 635
Docket NumberCase Action No. 1:09–cv–798.
PartiesBilly F. ANDERSON, Plaintiffs,v.COUNTY OF HAMILTON, et al, Defendants.
Decision Date14 March 2011


Billy F. Anderson, Cincinnati, OH, pro se.Christian Joseph Schaefer, Charles Wood Anness, Cincinnati, OH, Lawrence Edward Barbiere, Jay Douglas Patton, Schroeder Mundrell Barbiere & Powers, Mason, OH, for Defendants.Stacy Scherr, Norwood, OH, pro se.


MICHAEL R. BARRETT, District Judge.

This matter is before the Court on two motions. The Court first considers the June 18, 2010, Report and Recommendation (“Report”) filed by Magistrate Judge Timothy S. Hogan (Doc. 69).1 The Report is in response to Defendants Hamilton County, Kathy Elfers, Rachel Curran, Joyce Harmon, Fritz Meyer, and Louis F. Strigari's (“County Defendants) Motion for Judgment on the Pleadings (Doc. 40). The Report recommends that the County Defendants' motion be granted, that Plaintiff's federal claims against the County Defendants be dismissed with prejudice, and that Plaintiff's state-law claims against the County Defendants be dismissed without prejudice for lack of jurisdiction. (Doc. 69, 10). Second, the Court considers the motion to dismiss of pro se Defendant Stacy Scherr (Doc. 11).

As to the Report, proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file timely objections.2See United States v. Walters, 638 F.2d 947, 949–50 (6th Cir.1981). As part of his objection, Plaintiff submitted a mass of evidentiary material (Doc. 76 and associated manual filing) and what the Court will construe to be an amended objection (Doc. 80). The County Defendants filed two replies (Docs. 77, 82). For the reasons provided below, the Court ADOPTS the magistrate judge's Report in its entirety.

As to pro se Defendant Scherr's motion to dismiss (Doc. 11), Plaintiff has not formally responded. Given that both of these parties are pro se, the Court will construe their pleadings liberally. See Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir.1999) (Pro se plaintiffs enjoy the benefit of a liberal construction of their pleadings and filings.”); see also Dell, Inc. v. Elles, No. 07–2082, 2008 WL 4613978, at *4 (6th Cir. June 10, 2008) (finding it proper for a district court to liberally construe a pro se defendant's pleadings).

I. Background

Except where noted, the following facts come from the magistrate judge's Report. (Doc. 69, 2–5.) Plaintiff, a resident of Cincinnati, Ohio, brings this action pro se against multiple Defendants. These Defendants can be divided into five groups: (1) Judge Richard Bernat and Judge Julia Stautberg, who were dismissed as parties on June 4, 2010 (Doc. 60); (2) Donald Caster, John Coleman, and Marion Haynes III, who were dismissed as parties on July 2, 2010 (Doc. 73); (3) the County Defendants—the Defendants at issue in the Report—who include Kathy Elfers, Rachel Curran, Joyce Harmon, Fritz Meyer, Louis F. Strigari, and Hamilton County, Ohio (Doc. 40); (4) Robert Ward, the City of Norwood, and the Norwood Police Department; and (5) Stacy Scherr, who is unrepresented by counsel and has not taken an active role in this case other than to file an Answer that denied all allegations and requested dismissal (Doc. 11).

Plaintiff's Complaint (Doc. 1) alleges that on October 20, 2007, Defendants Stacy Scherr and Norwood Police Officer Robert Ward instituted charges of aggravated menacing and carrying a concealed weapon against him. Plaintiff alleges that Scherr and Ward fabricated the probable cause necessary for those charges and that probable cause was lacking to commence criminal proceedings against him.

The heart of Plaintiff's Complaint is his claim that all Defendants conspired to institute or maintain the state criminal action against him in an effort to “cover up” the “erroneous charges” and to “slander and discredit” him. He further alleges the defendants maliciously prosecuted him. (Doc. 1, 3.) He seeks $12,800,000 in damages, as Plaintiff states, “as compensation for loss of Nobel Prize in Economics ($10,000,000 plus interest of $2,800,000).” (Doc. 45, 1, 4–5; Doc. 1, 4.)

With respect to the County Defendants, Plaintiff alleges that Defendant Rachel Curran, the assistant prosecutor in his first trial, advised his public defender that there was no 911 tape of the incident leading to his arrest. Plaintiff alleges that he was ultimately able to obtain a copy of the 911 tape before his second trial. Plaintiff further alleges that Defendant Curran designated Robert Ward, the arresting officer, as the State's representative at Plaintiffs first trial. During his first trial, Plaintiff's public defender attempted to ask Defendant Scherr about a prior written statement when he supposedly walked around the back of Prosecutor Curran's desk and dropped a note on the desk. Defendant Curran objected. Following an off-the-record discussion in the judge's chambers, the objection was sustained. At trial the following day, when the public defender did not recall Ms. Scherr as a witness, Plaintiff, in the presence of the jury, requested the appointment of new counsel. The judge declared a mistrial, permitted Plaintiff's public defender to withdraw from representing Plaintiff, and recused herself from further proceedings.

Plaintiff maintains that Defendant Fritz Meyer, the jury commissioner for his first trial, selected a biased jury. He alleges that Defendant Meyer personally selected the jury pool and that nineteen out of the twenty prospective jurors had a close friend or family member in law enforcement. As for Defendant Louis Strigari, a public defender, Plaintiff alleges that he recommended that Plaintiff contact someone in the Public Defender's Office about representation. Furthermore, Defendant Joyce Harmon, a court reporter, allegedly failed to transcribe properly some of the testimony and statements made at his second trial.

Additionally, Plaintiff alleges that Defendant Kathy Elfers, the assistant prosecutor at Plaintiff's second trial, denied the existence of a 911 tape proving his innocence. During jury deliberations, the jury asked to hear Plaintiff's cross-examination of Ms. Scherr. Defendant Elfers requested that Ms. Scherr's testimony be read in its entirety when Plaintiff wanted only the cross-examination to be read. The trial judge granted defendant Elfers's request.

Finally, Plaintiff alleges that the public defender assigned to him for his second trial failed to appear for trial. Plaintiff ultimately represented himself, and he was acquitted. Plaintiff alleges that all these events are evidence of a conspiracy to slander him and to have him wrongfully convicted.

II. Legal AnalysisA. Report and Recommendation Standard

When objections to a magistrate judge's report and recommendation are received on a dispositive matter, the assigned district judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). After review, the district judge “may accept, reject, or modify the recommended decision; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1) (hanging paragraph). General objections are insufficient to preserve any issues for review; [a] general objection to the entirety of the magistrate's report has the same effects as would a failure to object.” Neuman v. Rivers, 125 F.3d 315, 323 (6th Cir.1997) ( quoting Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.1991)).

B. Motion for Judgment on the Pleadings Standard

When considering a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure Rule 12(c), ‘all well-pleaded material allegations of the pleadings of the opposing party must be taken as true, and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.’ Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir.2010) ( quoting JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir.2007)). “The motion is granted when no material issue of fact exists and the party making the motion is entitled to judgment as a matter of law.” Paskvan v. City of Cleveland Civil Serv. Commn., 946 F.2d 1233, 1235 (6th Cir.1991). “The standard of review for a Rule 12(c) motion is the same as for a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.” Fritz, 592 F.3d at 722; ( citing Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511–12 (6th Cir.2001)).

C. Rule 12(b)(6) Motion to Dismiss Standard

Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A court must liberally construe pleadings by a pro se litigant, and no matter how inartfully pleaded, a pro se complaint is held to less stringent standards than formal pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ( citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).

[T]o survive a motion to dismiss, a complaint must contain (1) ‘enough facts to state a claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of action's elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’ Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir.2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, passim (2007)). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). W...

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