Triplett-Fazzone v. City of Columbus Div. of Police

• Court: U.S. District Court — Southern District of Ohio
• Writing for the Court: EDMUND A. SARGUS
• Decision Date: 19 April 2013
• Docket Number: Case No. 2:12-CV-00331
• Citation: Triplett-Fazzone v. City of Columbus Div. of Police, Case No. 2:12-CV-00331 (S.D. Ohio Apr 19, 2013)
• Parties: RAGNA TRIPLETT-FAZZONE, Plaintiff, v. CITY OF COLUMBUS DIVISION OF POLICE, et al., Defendants.

RAGNA TRIPLETT-FAZZONE, Plaintiff, v. CITY OF COLUMBUS DIVISION OF POLICE, et al., Defendants.

Case No. 2:12-CV-00331

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Filed: April 19, 2013

JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Terence P. Kemp

OPINION AND ORDER

Plaintiff, Ragna Triplett-Fazzone, brings this action against multiple Defendants alleging various federal and state law claims. This matter is before the Court for consideration of the Motion to Dismiss Claims Against Defendants Officer Brian Keefe and Officer Daniel Hargus' in Amended Complaint (ECF No. 15); Defendant Franklin County Sheriff's Motion to Dismiss Plaintiff's Complaint (ECF No. 16); and the Motions to Dismiss of Defendants Chris Corso, Michael Gallicchio, Brian Swanson, and Josh Wycuff (ECF Nos. 19, 20, 21, 22). At this time the Court will also consider Plaintiff's Motion for Reconsideration of the Magistrate Judge's March 13, 2013 Opinion and Order. (ECF No. 69.) For the reasons that follow, the Motion to Dismiss of Officers Keefe and Hargus is GRANTED in part subject to the conditions outlined within this Opinion and Order; the Motion to Dismiss of the Franklin County Sheriff's Department is GRANTED; the Motions to Dismiss of Defendants Chris Corso, Michael Gallicchio, and Brian Swanson are GRANTED; and the Motion to Dismiss of Defendant Josh Wycuff is GRANTED in part and DENIED in part. Plaintiff's Motion for Reconsideration is DENIED.

I. Background

A. Factual Allegations¹

Plaintiff, who is proceeding pro se, brings several claims stemming from an April 2010 incident. During the night of April 15, 2010, and into the morning of April 16, 2010, Plaintiff was present at the Sugar Bar, a Columbus nightclub. (Am. Compl. 2, ECF No. 10) Plaintiff maintains that while she was dancing, her purse was stolen. (Id.) According to Plaintiff, once she realized that her purse was missing—apparently shortly after the event happened—she immediately went to inform the doorman. (Id.) Plaintiff asserts that Defendant Josh Wycuff ("Wycuff"), an employee of the Sugar Bar, was at the door. (Id. at 3.) Plaintiff indicates that despite her report of a crime, Wycuff did not help her. (Id.) In light of Wycuff's inaction, Plaintiff asserts that she held her arms out to try and control the crowd leaving the nightclub and to slow people down. (Id.) Plaintiff maintains that Wycuff then made a hand signal to nearby Columbus City Police Officers and pointed at her. (Am. Compl. 3.)

According to Plaintiff, Defendant Columbus City Police Officer Brian Keefe ("Officer Keefe") then came up behind her. (Id.) Plaintiff asserts that Officer Keefe handcuffed and arrested her without any dialogue. (Id.) Plaintiff contends that she attempted to explain the nature of the disruption. (Id.) She maintains that, at this point, Defendant Columbus City Police Officer Dan Hargus ("Officer Hargus") joined Officer Keefe. (Id.) Plaintiff asserts that the officers placed her in the back of a police cruiser. (Id.) Plaintiff contends that despite her verbalprotests, and the fact that she was unarmed, Officers Keefe and Hargus proceeded to place her in a "[d]eadly [f]orce position" and "hogtie" her in the cruiser's back seat. (Am. Compl. 3.) Plaintiff asserts that Officers Keefe and Hargus subsequently dragged her down the street in order to transfer her custody to the Franklin County Sheriff. (Id. at 4) She further contends that at no point did the Officers take a report regarding her stolen purse. (Id.)

Plaintiff was taken to, and incarcerated in, the Jackson Pike Women's Workhouse. (Id. at 4.) According to Plaintiff, while she was silently waiting in a jail cell, an unknown employee of the Franklin County Sheriff's Department approached her. (Id.) Plaintiff asserts that this employee grabbed her arm and forced the arm behind her back, grabbed her by the hair, and than slammed her head into a metal bench. (Id. at 5.)

Plaintiff was eventually released on bail. (Am. Comp. 5.) Following her release, Plaintiff visited Columbus City Police headquarters to report the theft of her purse. (Id.) She maintains that she also made reports of misconduct to internal affair divisions within the City of Columbus Police Department and the Franklin County Sheriff's Department. (Id.) Plaintiff asserts that she eventually attempted to contact the Sugar Bar, only to discovery that the establishment closed on July 3, 2010. (Id.) Plaintiff contends that Defendants Chris Corso ("Corso"), Michael Gallicchio ("Gallicchio"), and Brian Swanson ("Swanson") are owners of the establishment formerly known as the Sugar Bar. (Id. at 6.) Plaintiff maintains that, in closing the Sugar Bar, these Defendants interfered with her ability to investigate the April 2010 incident. (Id. at 8.)

B. Procedural History

Plaintiff filed this action on April 13, 2012. Within her original Complaint, Plaintiff named the City of Columbus (Division of Police), the Franklin County Sheriff's Department, theSugar Bar, and Unknown Defendants. (Compl. 1, ECF No. 2.) The City of Columbus answered Plaintiff's Complaint on July 24, 2012 and the Sugar Bar answered the Complaint on August 6, 2012.² (ECF Nos. 4, 6.)

On August 30, 2012, Plaintiff filed her Amended Complaint without leave of the Court. The Amended Complaint added Defendants Corso, Gallicchio, Swanson, Wycuff, Officer Keefe, and Officer Hargus. (Am. Compl. 1-2.) Within the September 5, 2012 Preliminary Pretrial Order, the Court instructed Defendants to move to strike the Amended Complaint no later than September 17, 2012. None of the Defendants moved to strike the Amended Complaint. Although somewhat unclear, the Amended Complaint appears to bring claims for constitutional violations pursuant to 42 U.S.C. § 1983. Plaintiff also brings state law claims—against at least some Defendants—for battery, infliction of emotional distress, and defamation. Plaintiff seeks monetary damages.

On September 13,2012, Officers O'Keefe and Hargus moved to dismiss the Amended Complaint. The Franklin County Sheriff's Department moved for dismissal on September 18, 2012.³ Finally, Defendants Corso, Gallicchio, Swanson, and Wycuff each moved to dismiss the Amended Complaint on October 2, 2012. Plaintiff responded to these Motions and also received leave to file a sur-reply.⁴

In January 2013, Plaintiff moved for an extension of time to serve Defendant Wycuff. Plaintiff also moved to add Franklin County Sheriff's Officer J.P. Burns ("Officer Bums") as a newly discovered party.⁵ (ECF No. 58.) On March 5, 2013, the Magistrate Judge issued an Opinion and Order denying these requests. (ECF No. 68.) The Magistrate Judge concluded that Defendant Wycuff waived any deficiency in service and, therefore, any extension of service time for service was unnecessary. The Magistrate Judge determined that leave to amend to add Officer Burns would be futile, reasoning that any potential claim against Officer Burns would be time-barred. On March 13, 2013, Plaintiff moved for reconsideration of the Magistrate Judge's Opinion and Order.

II. Standard

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (clarifying the plausibility standard articulated in Twombly). "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. The factual allegations of a pleading "must be enough to raise a right to relief above the speculative level...." Twombly, 550 U.S. at 555.

When determining whether the facial plausibility standard is met, the Court must acceptall factual allegations as true and construe the complaint in the light most favorable to the nonmoving party. Louisville/Jefferson Cnty. Metro Gov't v. Hotels.com, L.P., 590 F.3d 381, 384 (6th Cir. 2009). Moreover, the Court must "liberally construe pro se complaints and hold such complaints to a less stringent standard than pleadings prepared by attorneys." Frengler v. Gen. Motors, 482 F. App'x 975, 976 (6th Cir. 2012). At the same time, however, such "lenient treatment has limits" and the Court "should not have to guess at the nature of the claim asserted . . . ." Id. at 977 (internal quotations omitted). Relatedly, "Plaintiff's status as a pro se litigant does not discharge [her] from adhering to the requirements of the Federal Rules of Civil Procedure." Longino v. City of Cincinna, No. 1:12-cv-424, 2013 WL 831738, at *2 (S.D. Ohio Mar. 6, 2013).

An action will be dismissed pursuant to Rule 12(b)(6) "if on the face of the complaint there is an insurmountable bar to relief." Gascho v. Global Fitness Holdings, LLC, 863 F. Supp. 2d 677, 690 (S.D. Ohio 2012). Importantly, "[a] defendant may raise a statute of limitations defense in the context of a Rule 12(b)(6) motion to dismiss." Reid v. Baker, No. 11-5473, 2012 WL 3893122, at *4 (6th Cir. Sept. 7, 2012). "Indeed, while a defendant ordinarily has the burden to establish its statute of limitations defense, when the court can ascertain from the complaint that the period for bringing the claim has expired, a plaintiff must affirmatively plead an exception to the limitations statute." Id. at *6. In other terms, "when the face of a complaint makes it apparent that the time limit for bringing the claim has expired, plaintiff must affirmatively plead why the violations were not discovered earlier and why the statute should be tolled." Id. at 4.

III. Analysis

A. Motions to Dismiss

1. The Franklin County Sheriff's Department

The Court will first address the Motion to Dismiss of the Franklin County Sheriff's Department. Although this Motion to Dismiss seeks dismissal of Plaintiff's...