Wade V Put In Bay Police Department

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

DIONTE WADE, CASE NO. 3:24 CV 1158

Plaintiff,

v. JUDGE JAMES R. KNEPP II

PUT-IN-BAY POLICE
DEPARTMENT, et al.,
MEMORANDUM OPINION AND
Defendants. ORDER

INTRODUCTION
Pending before this Court is a Motion to Dismiss for Failure to State a Claim filed by
Defendants Put-In-Bay Police Department; Village of Put-In-Bay, Ohio; and Put-In-Bay Police
Officers Joshua Durda, Kyle Martin, Yuri Linetsky, Eric Seitz, Ashley McMicheaux, and David
Fenstermaker. (Doc. 5). Plaintiff Dionte Wade responded (Doc. 7), and Defendants replied (Doc.
8). Jurisdiction is proper under 28 U.S.C. § 1331. For the reasons discussed below, the Court grants
Defendants’ Motion.
BACKGROUND
The facts presented in the Complaint are accepted as true for the purposes of a motion to
dismiss. Haviland v. Metro. Life Ins. Co., 730 F.3d 563, 566–67 (6th Cir. 2013). Those facts are
as follows.
On July 24, 2022, Plaintiff was employed as a security guard at The Bayshore Resort (“the
Resort”) in Put-In-Bay, Ohio, when his employer called both him and Put-In-Pay Police
Department to respond to a disturbance. (Doc. 1, at 8). Upon his arrival at the Resort, Officers
Durda and Martin were already present. Id. Immediately, Plaintiff observed a disturbance on the
second floor of the Resort, saw a woman on the ground with an Officer’s1 knee to her back, and
heard Officers yelling at people to not record the incident. Id. Plaintiff, wearing his Resort shirt,
identified himself to the Officers as resort security and attempted to de-escalate the situation by
moving the crowd away from the Officers. Id. at 8–9. After Officers “swore at”, “shoved”, and

“taunted” Plaintiff and others, Plaintiff told onlookers that they had a right to record; at some point,
Plaintiff began recording the incident himself on his phone. Id. at 9. An Officer (which appears to
be either Officer Durda or Martin) then shoved Plaintiff against a wall by his neck, shoulder, and
chest area, confiscated his phone, handcuffed him, and forced him into a police cruiser, causing
injury to his head from contact with the vehicle. Id.
Plaintiff was arrested and taken to the police station, but not informed why nor read his
rights. Id. He was charged with obstructing official business, requiring a bond of $375.00. Id. at
10. Plaintiff hired an attorney to address the charges, costing him $750.00, but they were later
dismissed. Id.

Plaintiff’s Complaint brings six Counts: (1) retaliation against all individual Officers; (2)
excessive force against all individual Officers; (4) unlawful search and seizure against all
individual Officers; (5) failure to intervene against Officers Linetsky, Seitz, McMicheaux, or
Fenstermaker; and (6) failure to train and supervise against Village of Put-In-Bay and Put-In-Bay
Police Department. See Doc. 1.

1. After noting Officers Durda and Martin were on the scene upon his arrival, Plaintiff never again
indicates which specific Officer he is referring to in these factual allegations. Unless stated by the
Court, it is unclear whether this or any subsequent use of “Officer” refers to Durda, Martin,
Linetsky, Seitz, McMicheaux, or Fenstermaker.
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STANDARD OF REVIEW
Under Rule 12(b)(6), a complaint will only survive if it states a plausible claim for relief
on its face. Aschroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007)). To do so, the complaint must state factual allegations that allow the Court
to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Bates v.

Green Farms Condo. Ass’n, 958 F.3d 470, 480 (6th Cir. 2020) (citing Iqbal, 556 U.S. at 678). A
complaint is not required to contain “detailed factual allegations,” but must contain “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555). When deciding a motion to dismiss, this Court presumes all factual
allegations in the complaint to be true and makes all reasonable inferences in favor of the non-
moving party. Total Benefits Plan. Agency v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434
(6th Cir. 2008).
The Sixth Circuit “has consistently held that damage claims against government officials
arising from alleged violations of constitutional rights must allege, with particularity, facts that

demonstrate what each defendant did to violate the asserted constitutional right.” Lanman v.
Hinson, 529 F.3d 673, 685 (6th Cir. 2008) (citing Terrance v. Northville Reg’l Psych. Hosp., 286
F.3d 834, 842 (6th Cir. 2002)). This requires a court to analyze separately whether the plaintiff has
plausibly alleged a constitutional violation by each defendant, and it may not attribute the actions
of all defendants to any one individual defendant. Heyne v. Metro. Nashville Pub. Sch., 655 F.3d
556, 564 (6th Cir. 2011).2

2. Plaintiff appears to argue this Court should take judicial notice of the body cam footage from
the incident to help the Complaint satisfy the pleading standard. (Doc. 7, at 3). This Court is not
inclined to address such an argument, as no videos have been provided to it.
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DISCUSSION
Defendants argue they are entitled to dismissal of all Counts for four reasons. First, they
assert the Complaint fails to meet the pleading standard against the individual Officers by not
identifying any specific actions taken by any specific Officers. (Doc. 5, at 3). Second, Defendants
claim all Officers are entitled to qualified immunity. Id. Third, Defendants argue the Count against

Village of Put-In-Bay fails to allege municipal liability. Id. at 9. And Fourth, Defendants assert
Put-In-Bay Police Department is incapable of being sued. Id. at 10.
Because the Court finds all claims can be resolved by Defendants’ other arguments at this
juncture, and “it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss
on the basis of qualified immunity”, the Court finds it unnecessary to reach the issue of qualified
immunity. Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016) (quoting Wesley
v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015)).
The Complaint states allegations against the Defendant Officers as either “Assisting
Officers” or “Arresting Officers.” As such, the Court discusses the sufficiency of such allegations

as to the groups of Defendants set forth in the Complaint.
Assisting Officers (Linetsky, Seitz, McMicheaux, and Fenstermaker)
Plaintiff’s Complaint refers to Officers Linetsky, Seitz, McMicheaux, and Fenstermaker
collectively as “Assisting Officers.” See Doc. 1. But it fails to allege any particular actions or
specific facts regarding any individual Assisting Officer.3 For example, it is unclear to the Court

3. In addition to defining the group of Officers and using it in Count headings, the term
“Assisting Officers” is only used one time. Every other factual allegation regards “Defendants”
as a whole or the Arresting Officers.
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when any of these Officers arrived at the scene, or if any of them interacted with Plaintiff in any
way on the day in question.
For this reason, as discussed in further detail below, Officers Linetsky, Seitz, McMicheaux,
and Fenstermaker are entitled to a dismissal of all claims against them in this case.
Retaliation, Excessive Force, False Arrest, Unlawful Search and Seizure

As to Counts One through Four, Plaintiff alleges no actions or involvement of any Assisting
Officer that would reasonably lead to an inference of liability. For each of these claims, Plaintiff
only alleges actions of wholly unidentified Officers or Arresting Officers; these Counts fail to even
assert a relevant action of the previously narrowed “Assisting Officers” class, let alone any one of
them specifically. See Doc. 1, at 11–14.
Even taking all allegations in the Complaint as true, there are none that tie the actions of
any individual Assisting Officer to any of these claims. See Boxill v. O’Grady, 935 F.3d 510, 518
(6th Cir. 2019) (“Summary reference to a single, five-headed ‘Defendants’ does not support a
reasonable inference that each Defendant is liable for retaliation.”). As such, these Defendants are

entitled to a dismissal.
Failure to Intervene
Defendants argue Plaintiff’s failure to intervene claim fails on two grounds: first, because
Plaintiff failed to properly plead excessive force, and second, because Plaintiff failed to identify
facts that reasonably allege responsibility of any Assisting Officer for failure to intervene. (Doc.
5, at 9). Plaintiff maintains that all Defendants had a duty to intervene when Arresting Officers
were violating his constitutional rights through the use of excessive force. (Doc. 7, at 9).
To establish failure to intervene a plaintiff must allege defendants: (1) “observed or had
reason to know that excessive force would be or was being used” and (2) “had both the opportunity
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and the means to prevent the harm from occurring.” Burgess v. Fischer, 735 F.3d 462, 475 (6th
Cir. 2013) (quoting Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997)).
Plaintiff fails to plead facts that meet either requirement of a failure to intervene claim. The
Complaint gives no indication as to which Assisting Officers, if any, were present, witnessed the
use of force, had time to intervene, or were otherwise in a position to intervene. There are no

allegations regarding the physical proximity of any Assisting Officers to the alleged excessive
force, nor any facts suggesting that the force occurred over a sufficient period of time to allow
meaningful intervention. Absent factual allegations establishing the Assisting Officers had
knowledge of the force and a realistic opportunity to act, Plaintiff’s failure to intervene claim does
not survive dismissal.
Arresting Officers (Durda and Martin)
Plaintiff’s Complaint refers to Officers Durda and Martin as, collectively, “Arresting
Officers” and alleges no specific actions of either as an individual. See Doc. 1. Defendants argue
treating both officers as one person, without specifying any individual actions from either, requires

dismissal. See Doc. 5.
The Sixth Circuit has allowed similarly pleaded claims—where particular actions were not
clearly attributed to particular defendants—to move forward in limited circumstances; namely,
when a plaintiff is unable to separate the actions of officers due to some impairment created by the
defendants. See Batson v. Hoover, 788 F. App’x 1017, 1018 (6th Cir. 2019) (allowing non-specific
claims to move forward where the plaintiff claimed to have been blinded by pepper-spray from
defendants); see also Fazica v. Jordan, 926 F.3d 283, 292 (6th Cir. 2019) (allowing non-specific
claims to move forward where plaintiff claimed defendants put a spit mask on her that covered her
eyes).
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Here, Plaintiff asserts no action taken by any Defendant that impaired his ability to
distinguish them. Nor does he provide any other reason, even in opposition, as to why he would
not have been able to identify which Officer did what and who was on the scene. Instead, Plaintiff’s
Opposition asserts that Defendants have not voluntarily produced video footage additional to what
he already has, while at the same time admitting he has the body cam footage from all but one

Officer. (Doc. 7, at 9–10). At the pleading stage, it is Plaintiff’s burden—not Defendants’—to
allege specific factual content that plausibly supports each element of the claim as to each
Defendant. Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002, 1007–08
(7th Cir. 2021). As such, and as further discussed below, the Court grants Defendants’ Motion to
Dismiss as to all claims against Officers Martin and Durda.
Retaliation
Plaintiff contends Officers Durda and Martin violated his First Amendment rights through
excessive force in response to recording police actions, which he claims is a protected right. (Doc.
7, at 5).

A First Amendment retaliation claim requires: “(1) the plaintiff engaged in protected
conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary
firmness from continuing to engage in that conduct; and (3) there is a causal connection between
elements one and two -- that is, the adverse action was motivated at least in part by the plaintiff's
protected conduct.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999).
Plaintiff’s First Amendment retaliation claim fails to identify which Officer engaged in the
alleged retaliatory conduct. First, after previously and explicitly describing conduct as being done
by a singular Officer, Count One repeats the same alleged conduct but precedes it by referring to
the Arresting Officers jointly as taking “retaliatory action”. See Doc. 1, at 4 (“an officer from the
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Put-In-Bay Police Department shoved Plaintiff against a wall by his neck, confiscated Plaintiff’s
phone without cause as he was recording, placed Plaintiff in handcuffs, and forcefully threw
Plaintiff in his police cruiser.”) (emphasis added); then see id. at 11 (“they used excessive force
and shoved Plaintiff against a wall and forcefully held him against wall by his neck, shoulder, and
chest area; grabbed Plaintiff’s phone so he could not record the incident; and forced Plaintiff into

his cruiser”) (emphasis added). Second, this Count alleges actions of entirely unnamed Officers.
See id. at 12 (“the Officer told another Officer to ‘grab the one in purple’”).
Absent specific allegations regarding either Arresting Officer’s alleged retaliatory actions,
Plaintiff’s retaliation claim cannot proceed against Defendants Durda and Martin.
Excessive Force
Though Count Two does not specifically describe any actions it alleges to be excessive
force, the Complaint elsewhere states that either unnamed Officers, all Defendants generally, or
Arresting Officers used excessive force when they: forcefully held Plaintiff against a wall by his
neck, shoulder, and chest area; grabbed his phone to prevent him from recording the incident; and

forced him into a police cruiser without informing him that he was being arrested, reading him his
rights, or explaining why he was being taken to the police station. Id. at 4, 9, 11. Plaintiff contends
the use of force was inappropriate given that he was unarmed and did not resist arrest. (Doc. 7, at
6–7).
A claim for excessive force requires balancing an “individual’s Fourth Amendment
interests against the countervailing governmental interests at stake.” Graham v. Connor, 490 U.S.
386, 396 (1989) (quoting United States v. Place, 462 U.S. 696, 703 (1983)). The Sixth Circuit has
identified three factors used to determine the reasonableness of the force used by police: “[1] the
severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of
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the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest
by flight.” Graham, 490 U.S. at 396.
As discussed, Plaintiff’s Complaint broadly alleges Arresting Officers used excessive
force, does not specify who took what actions against him, and fails to include facts asserting the
unreasonableness of the arrest. This does not meet the pleading standard required by the Sixth

Circuit.
False Arrest
Plaintiff’s false arrest claim contends Defendants violated his constitutional rights under
the Fourth Amendment by forcing him into the police cruiser without probable cause or reasonable
belief that he was committing a crime. (Doc. 1, at 13–14). Defendants argue Plaintiff’s claim for
false arrest consists of blanket allegations lacking specificity and Plaintiff provides no information
concerning his arrest. (Doc. 5, at 7).
“A false arrest claim under federal law requires a plaintiff to prove that the arresting officer
lacked probable cause to arrest the plaintiff.” Voyticky v. Vill. of Timberlake, 412 F.3d 669, 677

(6th Cir. 2005). “Probable cause exists for an arrest when the facts and circumstances within the
officer’s knowledge are ‘sufficient to warrant a prudent person, or one of reasonable caution, in
believing, in the circumstances shown, that the suspect has committed, is committing or is about
to commit an offense.’” Griesmar v. City of Stow, 2022 WL 17581658, *5 (6th Cir.) (quoting
Weser v. Goodson, 965 F.3d 507, 513–14 (6th Cir. 2020)). “In determining whether an officer had
probable cause, this Court considers the totality of the circumstances, looking to both ‘evidence of
guilt’ and ‘exculpatory evidence’ available to the officer at the time.” Robinson v. City of
Knoxville, 2025 WL 621451, *4 (citing Ouza v. City of Dearborn Heights, 969 F.3d 265, 279 (6th
Cir. 2020)).
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Not only does Plaintiff fail to specify which Officer made the decision to initiate the arrest,
the entirety of Count Three solely describes Defendants as a group; it makes no mention of any
individual Officer or even Arresting Officers as a sub-group. Without factual allegations
identifying what each Officer knew or did at the time of the arrest, Plaintiff’s claim consists of
mere blanket allegations. Such generalized accusations are insufficient to survive dismissal.

Unlawful Search and Seizure
Count Four states Plaintiff had his person and phone seized by “Defendants”, and that his
phone was later retrieved by “[t]he arresting officer”. (Doc. 1, at 14). Legal searches and seizures
by law enforcement require probable cause or reasonable suspicion, consent, or a warrant. See
Rodriguez v. United States, 575 U.S. 348, 365 (2015).
Defendants contend the Complaint fails to allege which Officers took what actions that
amounted to an unlawful search and seizure. (Doc. 5, at 8). Plaintiff’s Opposition argues Arresting
Officers unlawfully seized Plaintiff’s personal property when they confiscated his phone without
reasonable suspicion, probable cause, consent, or any other lawful justification. (Doc. 7, at 7–8).

Plaintiff fails to allege with sufficient specificity the actions of each individual officer
involved in the alleged unlawful search and seizure. While the Complaint asserts facts that, if true,
could establish an unlawful seizure of both Plaintiff’s person and property, it refers only to
“Defendants” without attributing particular conduct to either Officer Durda or Martin. Absent such
individualized allegations, the claim cannot proceed against the Defendants as currently pleaded.
Village of Put-In-Bay
Count Six argues Village of Put-In-Bay failed to train and supervise Defendant Officers
and conclusory states it has a “policy, practice, and custom of failing to train and supervise police
officers” that lead to a deprivation of Plaintiff’s constitutional rights. (Doc. 1, at 17). Defendants
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argue the Complaint fails to properly allege a violation of constitutional rights by the municipality.
(Doc. 5, at 9–10).
The Sixth Circuit has stated the elements of failure to train as: “(1) a clear and persistent
pattern of illegal activity, (2) which the county knew or should have known about, (3) yet remained
deliberately indifferent about, and (4) that the county’s custom was the cause of the deprivation of

[plaintiff’s] constitutional rights.” Siefert v. Hamilton Cnty., 951 F.3d 753, 767 (6th Cir. 2020)
(quoting Bickerstaff v. Lucarelli, 830 F.3d 388, 402 (6th Cir. 2016)). “A pattern of similar
constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate
deliberate indifference for purposes of failure to train.” Connick v. Thompson, 563 U.S. 51, 62
(2011) (citing Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997)).
While the Complaint broadly asserts a violation of multiple individuals’ constitutional
rights on the night of the incident, there is no mention of any other instance of illegal activity by
Put-In-Bay Police Department or its Officers. And there are no factual assertions as to why the
municipality would be aware and responsible. Further, as discussed above, Plaintiff has failed to

properly plead any violation of a constitutional right against any Officer. As such, Plaintiff has not
sufficiently plead facts against Village of Put-In-Bay for failure to train and supervise.
Put-In-Bay Police Department
Defendants argue police departments are non sui juris, or incapable of being sued. (Doc.
5, at 10). Rule 17 of the Federal Rules of Civil Procedure governs capacity to be sued in federal
district courts. Fed. R. Civ. P. 17(b)(3). Rule 17 states that capacity to be sued, except individuals
and corporations, “shall be determined by the law of the state in which the district court is
located.” Id. Ohio law therefore governs the capacity of Put-In-Bay Police Department to be sued
in this matter.
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Ohio law considers city police departments non sui juris; the real party in interest is the
city itself. Parmelee v. Schnader, 2018 WL 1110474, at *5 (Ohio Ct. App.) (citing Cooper v.
Youngstown, 2016 WL 5874642, at *6 (Ohio Ct. App.)). For this reason, courts in this District
routinely summarily dismiss cases filed against police departments. See, e.g., Manning v. Berling,
2023 WL 3601494, at *3 (N.D. Ohio) (dismissing plaintiff’s complaint because “the City of

Toledo ‘Police Department’ is not an entity subject to suit under § 1983”); see also Lathan v. City
of Cleveland, 2012 WL 1708762, at *2 (N.D. Ohio) (“It is well-established that police departments
‘are not sui juris and, therefore, cannot sue or be sued. They are merely sub-units of the
municipalities they serve.’”) (quoting Deir v. Lake County, 2012 WL 1142467, at *3 (N.D. Ohio).
As such, this Court finds Put-In-Bay Police Department lacks capacity to be sued and
dismisses the claim against it.
Plaintiff’s Request to Amend
In Plaintiff’s Opposition, he contends that if this Court agrees with Defendants’ arguments
in the Motion to Dismiss, he “should be granted leave to amend [his] [C]omplaint to allow for

more specific allegations to be delineated and to file the videos as exhibits to the Complaint.”
(Doc. 7, at 3).
While a court “should freely give leave [to amend] when justice so requires,” Fed. R. Civ.
P. 15(a)(2), the Court must have before it the substance of the proposed amendment to determine
whether “justice so requires.” Beydoun v. Sessions, 871 F.3d 459, 469 (6th Cir. 2017). Further, “a
bare request in an opposition to a motion to dismiss . . . is not a motion to amend.” Louisiana Sch.
Emps. Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 486 (6th Cir. 2010) (internal quotation
marks and citation omitted).

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Plaintiff filed no motion to amend his Complaint, nor did he attach a proposed Amended
Complaint or indicate how his allegations would become more specific by using video footage he
apparently had before filing his initial Complaint. As such, the Court denies this request.
CONCLUSION
For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motion to Dismiss (Doc. 5) be, and the same hereby is,
GRANTED and all claims against Defendants are DISMISSED; and it is
FURTHER ORDERED that Plaintiffs request to amend the Complaint (Doc. 7, at 10) be,
and the same hereby is, DENIED.

s/ James R. Knepp II
UNITED STATES DISTRICT JUDGE

Dated: July 23, 2025