                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 17a0234n.06
                                                                                     FILED
                                       Case No. 16-4001                         Apr 24, 2017
                                                                           DEBORAH S. HUNT, Clerk
                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT


KRISSIE GONZALEZ,                                  )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE NORTHERN DISTRICT OF
TONY KOVACS et al.,                                )       OHIO
                                                   )
       Defendants-Appellees.                       )
                                                   )       OPINION
                                                   )

       BEFORE: MERRIT, GILMAN, and DONALD, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. Krissie Gonzalez was indicted for, and later

acquitted of, perjury.   She then brought suit against the deputy sheriff involved in the

investigation leading to her indictment, as well as Lorain County, alleging claims of false arrest

and malicious prosecution. A key element of both claims is proof that the defendants lacked

probable cause to initiate the charge of perjury.      The district court dismissed Gonzalez’s

complaint, concluding that she had failed to allege any plausible exception to the general rule

that an indictment conclusively establishes probable cause for the charge brought against her.

For the reasons set forth below, we AFFIRM the judgment of the district court.
Case No. 16-4001, Gonzalez v. Kovacs, et al.


                                     I. BACKGROUND

       The description that follows is derived from the facts pleaded in and reasonably inferred

from Gonzalez’s complaint. On June 10, 2010, Gonzalez and her fiancé, James Bailey, were at

their home in Columbia Station, Ohio. Gonzalez was making dinner while Bailey shot skeet in

the backyard.     D.C., Gonzalez’s child by her ex-husband Jeremy Ciehanoski, was in the

backyard with Bailey. A neighbor’s child, R.B., was also present in the backyard.

       Unbeknownst to Gonzalez, Bailey retrieved a handgun from the home and fired it at a

target on their property. He missed. The bullet traveled past the target and injured a man on a

nearby property.    A subsequent investigation led the police to conclude that Bailey was

responsible for the misdirected gunfire. In conjunction with his investigation of Bailey, Deputy

Sheriff Tony Kovacs interviewed Gonzalez, D.C., and R.B. All three interviewees denied that

Gonzalez was aware that Bailey possessed or shot the handgun.

       Deputy Kovacs also interviewed Ciehanoski, who sought temporary emergency custody

of D.C. after learning of the shooting incident. At the hearing on the custody motion, Gonzalez

again affirmed that she was unaware that Bailey possessed or discharged a handgun. But D.C.

and R.B., in an about-face, testified that Gonzalez did, in fact, know of the handgun and that

Bailey had fired it. The children are alleged to have changed their stories because Kovacs

manipulated them into doing so for the purpose of ensuring that Ciehanoski would obtain

custody of D.C.

       Deputy Kovacs and another officer then charged Gonzalez with misdemeanor

falsification and obstruction, but both charges were later dismissed without prejudice.      In

December 2011, however, Gonzalez was indicted for felony perjury and misdemeanor

falsification. The felony charge arose specifically from Gonzalez’s purportedly false testimony



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Case No. 16-4001, Gonzalez v. Kovacs, et al.


at the custody hearing at which D.C. and R.B. changed their stories. A jury acquitted Gonzalez

of both charges in February 2015.

        A year later, Gonzalez filed the instant case against Deputy Kovacs, other officers

involved in her arrest, her ex-husband, and Lorain County, Ohio. The individual defendants

were charged with false arrest and malicious prosecution, while the County was alleged to be

liable on a failure-to-train theory. All the defendants moved to dismiss for failure to state a

claim. See Fed. R. Civ. P. 12(b)(6). In her brief responding to the defendants’ motion, Gonzalez

requested leave to amend in the event that the court deemed her complaint insufficient. She did

not, however, file a formal motion to amend pursuant to Rule 15 of the Federal Rules of Civil

Procedure.

        The district court granted the defendants’ motion to dismiss, concluding that Gonzalez

had failed to plausibly allege that Deputy Kovacs had knowingly presented false testimony to the

grand jury or that the grand-jury proceedings were significantly irregular. Proof of one or the

other would be required to rebut the presumption that an indictment establishes probable cause to

justify a prosecution. Gonzalez in fact made no allegation that Deputy Kovacs was involved in

the grand-jury proceeding at all. The district court also concluded that Gonzalez had failed to

allege facts to support a claim against Lorain County for failure to train its law-enforcement

officers.

        Having disposed of the federal claims in the case, the district court declined to exercise

jurisdiction over the remaining state-law claims. The court then dismissed the complaint with

prejudice, and did not address the plaintiff’s request for leave to amend that was made in her

opposition brief.




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Case No. 16-4001, Gonzalez v. Kovacs, et al.


                                         II. DISCUSSION

A. Standard of review

       We review de novo the dismissal of a plaintiff’s complaint for failure to state a claim

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Kottmyer v. Maas, 436 F.3d

684, 688 (6th Cir. 2006). To withstand such a motion, the complaint must “contain sufficient

factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

B. False-arrest and malicious-prosecution claims

       Gonzalez has asserted two principal claims at issue in this appeal, both against Deputy

Kovacs: false arrest and malicious prosecution. She also raises the malicious-prosecution claim

against her ex-husband, Ciehanoski. These claims, as well as the illegal-seizure claims against

the John Doe defendants, arise out of her prosecution for felony perjury. All claims share in

common the requirement that Gonzalez must establish that her arrest and prosecution lacked

probable cause. See, e.g., Sykes v. Anderson, 625 F.3d 294, 305 (6th Cir. 2010) (false-arrest

claims); Voyticky v. Vill. of Timberlake, 412 F.3d 669, 675 (6th Cir. 2005) (malicious-

prosecution claims).

       “[T]he finding of an indictment, fair upon its face, by a properly constituted grand jury,

conclusively determines the existence of probable cause.” Barnes v. Wright, 449 F.3d 709, 716

(6th Cir. 2006) (internal quotation marks omitted). This presumption can be rebutted where the

plaintiff can show that the defendant has “knowingly present[ed] false testimony to the grand

jury to obtain an indictment or when [the defendant] testif[ies] with a reckless disregard for the

truth.” Bickerstaff v. Lucarelli, 830 F.3d 388, 398 (6th Cir. 2016) (internal quotation marks and




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Case No. 16-4001, Gonzalez v. Kovacs, et al.


citations omitted). Under Ohio law, a grand-jury finding of probable cause can also be rebutted

by a showing of significant irregularity in the grand-jury process. Id. at 397.

        Gonzalez’s complaint fails to allege that Deputy Kovacs, Ciehanoski, or the John Doe

defendants presented any testimony at all to the grand jury, let alone false testimony. The

complaint does allege that Deputy Kovacs and Ciehanoski “manipulated [D.C. and R.B.] to

make statements they knew, or had reason to know, were false and misleading,” but nowhere is it

alleged that either D.C. or R.B. testified before the grand jury, or that Deputy Kovacs or

Ciehanoski relayed D.C.’s or R.B.’s “chang[ed] . . . stories” to the grand jury. Ultimately, the

complaint acknowledges that the grand jury found the existence of probable cause, and that

Gonzalez was accordingly arrested. Gonzalez herself concedes in her brief that she “could not

allege facts showing [that the grand-jury] proceedings were significantly irregular or that Kovacs

had given false testimony.” The complaint consequently fails to state a claim for either false

arrest or for malicious prosecution.

        Gonzalez argues, however, that because grand-jury testimony is secret and because Rule

11 of the Federal Rules of Civil Procedure prohibits counsel from asserting facts in a pleading

that counsel cannot affirm have evidentiary support, she cannot assert anything about the grand-

jury proceedings without engaging in discovery. See Fed. R. Civ. P. 11(b). We find Gonzalez’s

argument to be without merit. Other means of determining who testified at the grand-jury

proceeding were available to Gonzalez, such as interviewing the children or Deputy Kovacs.

Gonzalez simply failed to investigate her claim thoroughly enough to plead the facts necessary to

state a claim.

        Counsel’s failure to adequately investigate a claim does not excuse counsel’s obligations

under Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure to file a factually plausible



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Case No. 16-4001, Gonzalez v. Kovacs, et al.


complaint. Cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (noting that requiring a

complaint’s plausibility “does not impose a probability requirement . . . ; it simply calls for

enough fact to raise a reasonable expectation that discovery will reveal evidence” in support of

the claim). Although overcoming the presumption of grand-jury secrecy might be difficult,

grand-jury secrecy cannot act as an excuse to avoid the requirement of the Federal Rules of Civil

Procedure that a complaint set forth facts that plausibly state a claim.

C. Monell claim

       We now turn to Gonzalez’s claim against Lorain County. A plaintiff may seek damages

against a municipality where the municipality has a custom, policy, or practice that resulted in

deprivation of the plaintiff’s constitutional rights. Monell v. Dept. of Soc. Servs., 436 U.S. 658,

690–91 (1978). But Gonzalez’s complaint alleges not a single fact that suggests, plausibly or

otherwise, that Kovac’s alleged misconduct was the result of a custom, policy, or practice of

Lorain County.     The district court therefore properly dismissed this count of Gonzalez’s

complaint.

D. Leave to amend

       We next reach the issue of whether Gonzalez should have been allowed to amend her

complaint. In her response to the defendants’ motion to dismiss, Gonzalez requested leave to

amend her complaint in the event that the district court deemed it insufficient. “[W]hen a motion

to dismiss a complaint is granted, courts typically permit the losing party leave to amend.” PR

Diamonds, Inc. v. Chandler, 364 F.3d 671, 698 (6th Cir. 2004), abrogated on other grounds in

Doshi v. Gen. Cable Corp., 823 F.3d 1032 (6th Cir. 2016). But “a bare request in an opposition

to a motion to dismiss—without any indication of the particular grounds on which amendment is

sought . . .—does not constitute a motion within the contemplation of [Federal] Rule [of Civil



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Case No. 16-4001, Gonzalez v. Kovacs, et al.


Procedure] 15(a).” Id. at 699 (internal quotation marks omitted). We have also held that an

informal request contained in a brief in opposition to a motion to dismiss is not deemed a Rule

15 motion to amend. Belaga v. PNC Bank, 214 F.3d 776, 784 (6th Cir. 2000) (“What plaintiffs

may have stated, almost as an aside, to the district court in a memorandum in opposition to the

defendant’s motion to dismiss is . . . not a motion to amend.”).

        Under these circumstances, the district court had no obligation to either grant Gonzalez’s

informal request to amend or explain why it took no action on this issue. We therefore find no

abuse of discretion on the part of the district court.

                                        III. CONCLUSION

        For all of the reasons set forth above, the judgment of the district court is AFFIRMED.




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