Hobbs v. Faulkner

• Decision Date: 04 September 2018
• Docket Number: Case No. 1:17-cv-441
• Parties: RYAN D. HOBBS, Plaintiff, v. DEREK FAULKNER, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

RYAN D. HOBBS, Plaintiff, v. DEREK FAULKNER, et al., Defendants.

Case No. 1:17-cv-441

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

September 4, 2018

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is an action brought pro se by Plaintiff Ryan Hobbs under 42 U.S.C. § 1983. The case is before the Court on several Motions to Dismiss (ECF Nos. 19, 25, and 26). Plaintiff has filed Responses in Opposition (ECF Nos. 24, 28, and 29) and the moving parties have filed Replies in support (ECF Nos. 27, 33, and 38).

Motions to dismiss a case involuntarily are "dispositive" motions on which an assigned Magistrate Judge is required to file a recommended disposition rather than a decision. Fed. R. Civ. P. 72(b). The Magistrate Judge reference in this case has recently been transferred to the undersigned to promote coordination with Hobbs's habeas corpus litigation, Hobbs v. Ohio Adult Parole Authority, Case No. 1:13-cv-928, which is assigned to District Judge Black but also referred to the undersigned.

The operative pleading to which the motions to dismiss are directed is the Amended Complaint filed May 14, 2018 (ECF No. 14).

Plaintiff claims this Court has jurisdiction under Article III, § 2 of the United States Constitution which he says "extends the jurisdiction to cases arising under the U.S. Constitution." Id. at PageID 231. Actually, Article III does not by itself confer jurisdiction, but Congress has granted subject matter jurisdiction to United States District Courts for claims arising under the Constitution, 28 U.S.C. § 1331. Because this case purports to arise under 42 U.S.C. § 1983, the Court has subject matter jurisdiction. Venue is proper in this Court because all of the alleged constitutional deprivations occurred in this judicial district. 28 U.S.C. § 1391.

In the Amended Complaint Plaintiff names as Defendants:

1. Derek Faulkner and Mel Planas in their official capacities as Assistant County Prosecutors of Warren County, Ohio (hereinafter "Prosecutor Defendants") (ECF No. 14, PageID 231, ¶ 6).

2. Jeff Burson, Paul Lindenschmidt, and Michael O'Downey in their official capacities as police officers of the City of Mason, Ohio (collectively, the "Mason Defendants"). Id. at PageID 232, ¶ 7.

3. Mike Bunner and Don Stebastenelli in their official capacities as Director and former Director of Warren County Emergency Services (hereinafter "Telecom Defendants," shorthand employed both by these Defendants and by Plaintiff). Id. at PageID 232, ¶ 8.

4. Ron Ruppert, an attorney sued in his official capacity which is not described. Id. at PageID 232, ¶ 9.

5. Timothy Tepe, sued in his official capacity as a Judge of the Warren County Court of Common Pleas. Id. at PageID 232, ¶ 10.

Plaintiff originally sought monetary damages in the total amount of five million dollars (Verified Complaint, ECF No. 3, PageID 31-32). However, the Amended Complaint seeks only injunctive relief (ECF No. 14, PageID 246-47).

As part of their Motion to Dismiss, the Prosecutor and Telecom Defendants move to strike the Amended Complaint on the grounds it was improperly filed while a Report and Recommendations from Magistrate Judge Bowman on initial screening under 28 U.S.C. § 1915 was still pending (ECF No. 26, PageID 310-311). Magistrate Judge Bowman's subsequent Order (ECF No. 32) accepting the Amended Complaint as filed renders this motion to strike moot.

Standard of Review

All Defendants move to dismiss under Fed. R. Civ. P. 12(b)(6). The Prosecutor and Telecom Defendants and Judge Tepe also seek dismissal under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.

Jurisdiction (Fed. R. Civ. P. 12(b)(1)

Federal courts are courts of limited jurisdiction; they are empowered to hear only those cases which are within the judicial power of the United States as defined in the United States Constitution and as further granted to them by Act of Congress. Finley v. United States, 490 U.S. 545, 550 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976). Therefore, there is a presumption that a federal court lacks jurisdiction until it has been demonstrated. Turner v. President, Directors and Co. of the Bank of North America, 4 U.S. 8 (1799). Facts supporting subject matter jurisdiction must be affirmatively pleaded by the person seeking to show it. Bingham v. Cabot, 3 U.S. 382 (1798). The burden of proof is on the party asserting jurisdiction if it is challenged. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182-83 (1935); Thomson v. Gaskill, 315 U.S.442 (1942); Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266 (6^th Cir. 1990); 5A Wright and Miller, Federal Practice and Procedure, Civil 2d §1350 (1990). A federal court is further obliged to note lack of subject matter jurisdiction sua sponte. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van Noorden, 6 U.S. 126 (1804); Answers in Genesis of Ky., Inc. v. Creation Ministries Int'l, Ltd., 556 F.3d 459, 465 (6^th Cir. 2009); Clark v. United States, 764 F. 3d 653 (6^th Cir. 2014).

A facial attack on a complaint is proper under rule 12(b)(1) and requires the Court to assume the truth of all allegations made by a plaintiff that are relevant to the jurisdictional issue. DLX, Inc., v. Kentucky, 381 F.3d 511, 516 (6^th Cir. 2004), citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1133-35 (6^th Cir. 1996); United States v. Ritchie, 15 F.3d 592, 598 (6^th Cir. 1994); and Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6^th Cir. 1990). If an issue of sovereign immunity is involved, a plaintiff must identify a waiver of sovereign immunity in order to proceed. Reetz v. United States, 224 F.3d 794, 795 (6^th Cir. 2000), citing Dalehite v. United States, 346 U.S. 15, 30 (1953).

Pleading a Claim for Relief (Fed. R. Civ. P. 12(b)(6))

"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 (6^th Cir. 1993), citing Nishiyama v. Dickson Cty., Tennessee, 814 F.2d 277, 279 (6^th Cir. 1987). Stated differently, a motion to dismiss underFed.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 (6^th 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 (6^th Cir. 2007). "To survive a motion to dismiss, a complaint must containsufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its fact,'" Doe v. Miami University, 882 F.3d 579(6^th Cir. 2018), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), in turn quoting Twombly, 550 U.S. at 570.

Background Facts

Ryan Hobbs was indicted by the Warren County grand jury on October 29, 2007, on charges of rape, abduction, and assault for offenses alleged to have occurred in August of that year. In March 2008 as the result of plea negotiations, Hobbs pleaded guilty to one count of gross sexual imposition and one count of unlawful restraint, was given a community control sentence, and did not appeal. On July 14, 2009, however, Hobbs was found to have violated the terms of his community control which was revoked and he was sentenced to twelve months' imprisonment. Again, he took no appeal.

On May 10, 2010, Hobbs filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. The trial court denied the petition and Hobbs did not appeal. On August 10, 2012, Hobbs moved to withdraw his guilty plea. After the trial court denied the motion, Hobbs appealed to the Twelfth District Court of Appeals. That court affirmed the denial of Hobbs' motion to withdraw his plea on July 15, 2013, and the Ohio Supreme Court declined to exercise...