ROBERT V. DURRSTEIN

Plaintiffs, Case No. C-3-OO-140

- vs - District Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

RICHARD P. ARTHUR, et al.,

Defendant.

REPORT AND RECOMMENDATIONS

1. Motion to Dismiss of Defendants Montgomery County, Ohio; Montgomery County Sheriff’s

Office; Sheriff Gary Haines; and Montgomery County Prosecutor Mathias Heck, Jr. (Doc. #2);

2. Motion to Dismiss of Defendant City of Beavercreek, Ohio, and the Beavercreek Police

Department (Doc. #7);

3. Motion to Dismiss of Defendant Michelle Russell, D.O. (Doc. #11);

4. Motion to Dismiss of Defendant Richard P. Arthur (Doc. #18);

5. Motion to Dismiss of Defendant City of Trotwood and the Trotwood Police Department (Doc.

#26);

6. Motion to Dismiss of Defendant Dayton Police Department (Doc. #27);

7. Motion to Dismiss of Defendants Montgomery County, Ohio; Montgomery County Sheriff’s

Office; and Montgomery County Prosecutor Mathias Heck, Jr. (Doc. #28), directed to the Amended

Complaint;

8. Motion to Dismiss of Defendant City of Beavercreek, Ohio, and the Beavercreek Police

Department (Doc. #29), directed to the Amended Complaint; and

9. Motion to Dismiss of Defendants State of Ohio and Ohio Supreme Court (Doc. #45).

Plaintiff has been notified on a number of occasions of his obligation under S. D. Ohio Civ. R. 7.2 to file any memorandum in opposition to such Motions not later than twenty-four days after service on him by mail (Doc. ##3, 8, 14, 21, 33, 34, 35, 36). He has filed memoranda in opposition only to the Motions of Defendants Montgomery County (Doc. #10), Russell (Doc. #11), Beavercreek and its police department (Doc. #41), and the State of Ohio and Ohio Supreme Court (Doc. #54). In addition, he has filed an Amended Complaint (Doc. #22), partly at least in response to the Court’s Order that he do so (Doc. #13).

Plaintiff states very generally that his claims arise under Ohio law and the United States Constitution. The Court treats the federal laws claims as made under 42 U.S.C. § 1983 which creates a private right of action for deprivation of federal constitutional rights when done by someone acting under color of state law.

Most of the Motions to Dismiss are grounded in Fed. R. Civ. P. 12(b)(6). The purpose of that rule is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true. Mayer v. Mylod, 988 F. 2d 635,638 (6th Cir. 1993), citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir. 1987). Put another way, "The purpose of a motion under Rule 1 2(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).

The test for dismissal under Fed. R. Civ. P. 12(b)(6) is a stringent one:

Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811,113 S. Ct. 2891, 125 L. Ed. 2d612 (1993), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 5. Ct. 99, 2 L. Ed. 2d 80 (1957); Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Hishon v. King& Spalding, 467 U.S. 69, 104 5. Ct. 229, 81 L. Ed. 2d 59(1984); Monette v. Electronic Data Systems, Inc., 90 F. 3d 1173, 1189 (₆th Cir. 1996). For purposes of the motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 94 5. Ct. 1683, 40 L. Ed. 2d 90(1974); Westlake v. Lucas, 537 F. 2d 857 (6th Cir. 1976); Craighead v. E.F. Hutton & Co., 899 F. 2d 485 (6th Cir. 1990). To survive a motion to dismiss under Fed. R. Civ. P. 1 2(b)(6), "a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Scheid v. Fanny Farmer Candy Shops, Inc., 859 F. 2d 434, 436 (6th Cir. 1988); followed Allard v. Weitzman (In re DeLorean Motor Co.), 991 F. 2d 1236 (6th Cir, 1990); Columbia Natural Resources, Inc. v. Tatum, 58 F. 3d 1101 (6th Cir. 1995). The Court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church ‘s Fried Chicken, 829 F. 2d 10, 12 (6th Cir. 1987). Bare assertions of legal conclusions are not sufficient. Lillard v. Shelby County Bd. of Educ., 76 F. 3d 716, 726 (6^th Cir. 1996); Sogevalor S.A. v. Penn Central Corp., 771 F. Supp. 890, 893 (S.D. Ohio 1991). It is only well-pleaded facts which are construed liberally in favor of the party opposing the motion to dismiss. Id., citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90(1974); see also Wright & Miller, FEDERAL PRACTICE AND PROCEDURE:

Civil 2d §1357 at 311-318 (1990).

Because Plaintiff has filed an Amended Complaint, the Motions to Dismiss directed to the original Complaint (Doc. ##2, 7, and 11) are MOOT.

Defendants City of Trotwood and its police department seek dismissal (Doc. #26) because the Amended Complaint does not state a claim for relief against them. Plaintiff has failed to respond to this Motion. From examination of the Amended Complaint, it is plain that Plaintiff did not follow the Court’s admonition in its Order for an amended complaint that Plaintiff must set forth specific facts about what was done by who on what dales and what federal law was violated. As to Defendants City of Trotwood and its police department, the Amended Complaint should be dismissed without prejudice for failure to state a claim upon which relief can be granted.

Defendant City of Dayton Police Department seeks dismissal on the same basis as Trotwood and its police department (Doc. #27). Plaintiff has also failed to respond to this Motion, which should be granted on the same basis as that made by the Trotwood Defendants.

Defendants Montgomery County, its Sheriffs Office, and its Prosecuting Attorney ,ove for dismissal (Doc. ~28) on the same basis as the Trotwood and Dayton Defendants. Plaintiff has not responded. These Defendants should also be dismissed on the same basis as the Trotwood and Dayton Defendants.

Defendants City of Beavercreek and its police department seek dismissal on the same basis of failure to state a claim for relief (Doc. #30). Plaintiff has responded by alleging additional occasions on which he allegedly reported what he regards as criminal activities of some of the Defendants (the Seymours and his ex-spouse) to the Beavercreek Police and they did not investigate or prosecute. While the Beavercreek Police Department is charged under Ohio law with enforcing the criminal law of Ohio in that city, it does not violate the constitutional rights of any particular citizen, including a person who alleges he is a victim of the reported crimes, when it fails to

investigate those crimes. DeShaney v. Winnebago City Dept. of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). Plaintiff’s claims against Beavercreek and its police department should also be dismissed without prejudice for failure to state a claim.

In addition to the other grounds for dismissal, the various police departments sued are not sui juris; that is, they are not separate entities, but only parts of the various cities. Williams v. Dayton Police Dept., 680 F. Supp. 1075 (S.D. Ohio 1987)(Rice, J.)

Defendant Richard Arthur has moved to dismiss for failure to state a claim upon which relief can be granted (Doc. #18) and Plaintiff has not responded. The Amended Complaint alleges that Defendant Richard Arthur as an attorney at law assisted Defendant Cynthia Durrstein in filing a false affidavit to obtain a domestic relations temporary protection order. Plaintiff fails to allege in what way the affidavit was false, but claims that Defendant Arthur was negligent and/or reckless in giving such assistance. Plaintiff claims that this violated his rights under Ohio law and the United States Constitution. As attorney for Ms. Durrstein, Mr. Arthur owed no duty in sounding in tort under Ohio law to Mr. Durrstein as an opposing party. As for federal law,attorneys do not act under color of state law in providing legal assistance to clients. Polk County v. Dodson 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981). The claims against Mr. Arthur should also be dismissed without prejudice for failure to state a claim upon which relief can be granted.

Finally, the State of Ohio and the Ohio Supreme Court seek dismissal (Doc. #45) under both Fed. R.Civ. P.12(b)(1) and 12(b)(6) on grounds that the Plaintiff has not pled any acts by these Defendants who are, in any event, immune from suit in federal court under the Eleventh Amendment. The Court should decline to consider the Eleventh Amendment defense since it is not clear that Plaintiff is seeking monetary relief against the State and its Supreme Court. Compare Ex parte Young, 209 U.S. 123, 28 S.Ct.441, 52 L.Ed.714 (1908); Cory v. White, 457U.S.85, 102 S.

Ct. 2325, 72 L. Ed. 2d 694 (1982); and Thomson v. Harmony, 65 F. 3d 1314, 1320 (6th Cir. 1995) with Estate of Ritter v. University of Michigan, 851 F. 2d 846, 848 (6th Cir. 1988); Ford Motor Company v. Dep’t. of Treasury of State of Indiana, 323 U.S. 459, 65 5. Ct. 347, 89 L. Ed. 2d 389 (1945); Quern v. Jordan, 440 U.S. 332,99 S. Ct. 1139, 59L. Ed. 2d358 (1979).

On the other hand, these Defendants’ Motion to Dismiss under Rule 12(b)(6) should be granted. Instead of pointing to any place in his Amended Complaint where he alleged acts done by particular persons on particular dates which deprived him of rights, Plaintiff resorts to generalized invective against the bar and the judiciary generally. Indeed, in addition to accusing these two entities as entities with violating his rights and without saying when, where, and how, Plaintiff adds generalized allegations against this Court, the United States Court of Appeals for the Sixth Circuit, the Federal Bureau of Investigation, and the Department of Justice (See Doc. #54 at pp. 3-4). He claims he will prove all this with subpoenaes he will have issued. However, before any subpoenaes are issued, Plaintiff must plead a claim for relief instead of vague, generalized (albeit vehement) allegations. This he has failed to do. As to the State of Ohio and the Ohio Supreme Court, the Amended Complaint should be dismissed with prejudice for failure to state a claim upon which relief can be granted. -

June 6, 2000.