               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0418n.06

                                         No. 15-4372


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

TINA L. DAVIS,                                )
                                              )                                FILED
       Plaintiff-Appellant,                   )                            Jul 27, 2016
v.                                            )                       DEBORAH S. HUNT, Clerk
                                              )
BUTLER COUNTY, OHIO;                          )
SHERIFF RICHARD K. JONES;                     )
DEPUTY HOLLANDSWORTH,                         )     ON APPEAL FROM THE UNITED
                                              )     STATES DISTRICT COURT FOR THE
       Defendants-Appellees,                  )     SOUTHERN DISTRICT OF OHIO
                                              )
and                                           )
                                              )
UNKNOWN FEMALE OFFICER,                       )
and UNKNOWN OFFICER,                          )
                                              )
       Defendants.                            )


BEFORE:       CLAY, ROGERS, and McKEAGUE, Circuit Judges.

       CLAY, Circuit Judge. On October 24, 2014, plaintiff Tina Davis, proceeding in forma

pauperis, filed a civil rights complaint against the Butler County Sheriff, “Undercover Officer

Hollingsworth,” and the state of Ohio.      Davis’s complaint asserted claims for malicious

prosecution, abuse of process, malice, and negligence based on the March 8, 2014 search of her

house and her subsequent arrest and prosecution for drug trafficking and possession. Davis also

filed a motion seeking the district court’s assistance in obtaining counsel. A magistrate judge

issued a report and recommendation urging that Davis’ complaint be dismissed pursuant to 28

U.S.C. § 1915(e), and on December 8, 2014, the district court issued an order and judgment
                                                   No. 15-4372


adopting the report and recommendation, denying Davis’ motion for assistance obtaining

counsel, and dismissing her complaint. Davis did not appeal from this first judgment.

         On May 21, 2015, Davis filed a second civil rights complaint, this time through counsel,

against Butler County, Ohio, Butler County Sheriff Richard K. Jones, “Deputy Hollandsworth,”

“Unknown Female Officer,” and “Unknown Officer.” Davis’ second complaint, like her first,

arose from the March 8, 2014 search of her house, her subsequent arrest, and the trafficking and

possession charges filed against her.              Jones, Hollandsworth, and the county (collectively,

“Defendants”) filed motions for judgment on the pleadings, and Davis requested leave to amend

her complaint. Rather than resolve the parties’ pending motions, however, the district court

issued an order and judgment sua sponte dismissing the complaint based on a finding that Davis’

second suit was barred by the doctrine of res judicata. Davis timely appealed this dismissal. For

the following reasons, we AFFIRM the judgment of the district court.

                                               BACKGROUND

                                             Factual Background

         In her complaint, Davis alleges the following. At all relevant times for the purposes of

this lawsuit, Davis owned a house in Hamilton, Ohio that was occupied by her three adult

children. Davis herself resided elsewhere.

         On March 8, 2014, Davis received a phone call from her daughter informing her that

there were sheriff’s deputies present at her house in Hamilton. After driving over to the house,

Davis went inside and encountered defendant Hollandsworth.1 Davis informed Hollandsworth

that she owned the house but did not live there, and asked “what [was] going on.” (R. 1, ¶ 9).


         1
          Although Davis does not explicitly state as much, it appears from the record that the individual referred to
as “Officer Hollingsworth” in her first lawsuit and “Deputy Hollandsworth” in her second lawsuit are the same
person.


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                                           No. 15-4372


Hollandsworth handed Davis a search warrant, which she read in part before saying, “This is bull

shit.” (Id.). Angered by Davis’ comment, Hollandsworth asked a female officer to search her,

then handcuffed Davis and placed her in the back of a hot police cruiser for approximately 60 to

90 minutes before removing her handcuffs. Ultimately, Davis was placed in a different police

cruiser and driven to the Butler County Sheriff’s Department after drugs were found in her

house.

         Once at the sheriff’s department, Davis was Mirandized before being interrogated for

approximately two hours. Davis denied any knowledge of the drugs found in her house, but was

allegedly told by Hollandsworth that she would be charged with drug-related offenses unless

someone else came forward. Approximately five hours after arriving at the jail, Davis posted

bond and was permitted to leave. Davis alleges that at some point during the March 8, 2014

search of her house (or her subsequent arrest), officers searched Davis’ vehicle without her

consent, took her cell phone out of the vehicle, and never returned it.

         Davis was charged with “felony possession and felony trafficking” in the Hamilton

Municipal Court. (Id. at ¶ 14). Although the trafficking charge was dismissed, the possession

charge was bound over to a grand jury, which reduced the charge from a felony to a

misdemeanor. After Davis and her attorney appeared before the court two or three times, the city

prosecutor dismissed the misdemeanor possession charge against her, ostensibly due to

Hollandsworth’s failure to move forward with the case. In total, Davis paid $6,500 to the

attorney who represented her in municipal court and $200 to have the trafficking and possession

charges expunged from her record.        Even though Davis’ photograph was featured in the

Hamilton Journal and on the Butler County Sheriff’s website as an arrestee for drug possession,

neither medium ever mentioned that the charges had been dropped.



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                                                 No. 15-4372


                                            Procedural Background

        On October 24, 2014,2 Davis filed her first lawsuit arising from the March 8, 2014

search, arrest, and criminal charges. The same day, a magistrate judge issued a report and

recommendation opining that Davis’ complaint, which was filed in forma pauperis, should be

dismissed under 28 U.S.C. § 1915(e) for lack of jurisdiction and failure to state a claim upon

which relief may be granted. After reviewing Davis’ objections, the district court issued a

judgment adopting the report and recommendation and dismissed Davis’ complaint. Davis did

not appeal.

        On May 21, 2015, Davis filed her second lawsuit arising from the same events, this time

through counsel. In October 2015, Davis moved for an extension of time to file an amended

complaint, but later withdrew this request.          Around the same time, Defendants moved for

judgment on the pleadings, and Davis again requested additional time to amend her complaint.

Before the district court had ruled on the aforementioned motions, Davis filed an amended

complaint. Thereafter, the district court struck her amended complaint and denied leave to

amend as futile. Davis again requested leave to amend.

        On November 18, 2015, the district court issued an order and judgment sua sponte

dismissing Davis’ complaint as barred by the doctrine of res judicata. Davis timely appealed the

dismissal of her second lawsuit to this Court.

                                             DISCUSSION

                                            I.       Res Judicata

        We review a district court’s application of res judicata de novo. United States ex rel.

Sheldon v. Kettering Health Network, 816 F.3d 399, 407 (6th Cir. 2016). “Under the doctrine of

        2
          Although Davis submitted her complaint when she moved for leave to proceed in forma pauperis on
October 14, 2014, her complaint was not accepted for filing until the motion was granted on October 24, 2014.


                                                     4
                                                  No. 15-4372


res judicata, ‘a final judgment on the merits bars further claims by parties or their privies based

on the same cause of action.’” Id. at 414 (quoting Montana v. United States, 440 U.S. 147, 153

(1979)). For a claim to be barred by res judicata, there must be: “(1) a final decision on the

merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or

their ‘privies’; (3) an issue in the subsequent action which was litigated or which should have

been litigated in the prior action; and (4) an identity of the causes of action.” Bittinger v.

Tecumseh Prods. Co., 123 F.3d 877, 880 (6th Cir. 1997). Because it appears that the first

element—a final decision on the merits—is lacking in this case, we find that the district court’s

sua sponte application of res judicata was dubious at best.

        In Denton v. Hernandez, the Supreme Court held that dismissal under § 1915(e)3 “is not a

dismissal on the merits, but rather an exercise of the court’s discretion under the in forma

pauperis statute.” 504 U.S. 25, 34 (1992). Accordingly, this type of dismissal “does not

prejudice the filing of a paid complaint making the same allegations.” Id. (emphasis added);4 see

also Stephens v. Hayes, 374 F. App’x 620, 622 (6th Cir. 2010) (“The dismissal of Plaintiffs’

initial complaint under § 1915(e)(2) was not a dismissal on the merits; consequently, it arguably

lacks res judicata effect except as to frivolousness determinations for future in forma pauperis

petitions.”).




        3
          Although the Denton Court was actually analyzing the former § 1915(d), we have acknowledged that
“§ 1915(e) is the product of the [Prison Litigation Reform Act’s] revision and renumbering of former § 1915(d),”
Benson v. O’Brian, 179 F.3d 1014, 1016 (6th Cir. 1999), and other circuits have treated § 1915(d) and § 1915(e)
interchangeably when describing Denton’s application. See, e.g., Cieszkowska v. Gray Line N.Y., 295 F.3d 204,
205–06 (2d Cir. 2002); Okoro v. Bohman, 164 F.3d 1059, 1062 (7th Cir. 1999).
        4
           The Supreme Court left open the question of whether dismissal under § 1915(e) “could . . . have a res
judicata effect on frivolousness determinations for future in forma pauperis petitions,” Denton, 504 U.S. at 34, and
several circuit courts have subsequently answered this question in the affirmative, see Cieszkowska, 295 F.3d at 206
(collecting cases from the Fourth, Fifth, Seventh, and Eighth Circuits). However, because Davis paid the filing fee
upon bringing this second lawsuit, we do not have occasion to consider such circumstances.


                                                         5
                                                  No. 15-4372


        Below, the district court relied on its prior dismissal of Davis’ first complaint, which was

filed in forma pauperis, in finding that Davis’ second, paid complaint was barred by res judicata.

In support of this result, the district court concluded that dismissal under § 1915(e) constituted an

adjudication on the merits. However, as noted above, the Supreme Court has indicated that

dismissal under § 1915(e) does not constitute a final decision on the merits where, as in this case,

the plaintiff pays the court’s filing fee when bringing her subsequent suit. See Denton, 504 U.S.

at 34; see also Stephens, 374 F. App’x at 622 (stating that dismissal of a complaint under

§ 1915(e) does not constitute an adjudication on the merits with res judicata effect except,

arguably, “as to frivolousness determinations for future in forma pauperis petitions”); Gladney v.

Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir. 2002) (describing § 1915(e) as § 1915(d)’s

“materially identical successor” and stating that under either version of the statute, “the plaintiff

[could] proceed by paying the filing fee”); Cieszkowska, 295 F.3d at 205–06 (“In Denton, the

Supreme Court held that . . . a dismissal under § 1915(e) ‘does not prejudice the filing of a paid

complaint making the same allegations’”); but see Harmon v. Webster, 263 F. App’x 844, 845–

46 (11th Cir. 2008) (holding that Denton does not control dismissals under § 1915(e) for failure

to state a claim). “[Res judicata] only arise[s] where the prior decision was a final judgment on

the merits.” Stephens, 374 F. App’x at 622. Because the holding in Denton suggests that

dismissal under § 1915(e) operates as an adjudication on the merits only as to future complaints

filed in forma pauperis, a circumstance absent in this case, we have reason to doubt the

soundness of the district court’s conclusion that Davis’ second, paid complaint was barred by res

judicata.5


        5
          One question raised by the transition from the former § 1915(d) to the current § 1915(e) is whether
Denton’s holding applies to in forma pauperis complaints dismissed for failure to state a claim, like Davis’, or only
those complaints dismissed as frivolous. A second question is whether Denton applies to § 1915(e) at all, although


                                                         6
                                                  No. 15-4372


        Nonetheless, “[e]ven where the district court relies on erroneous grounds in reaching its

decision [to dismiss a case], we may affirm that decision ‘on any ground supported by the

record.’” Haines v. Fed. Motor Carrier Safety Admin., 814 F.3d 417, 423 (6th Cir. 2016); La.

Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 477 (6th Cir. 2010). Thus, we next

examine whether Davis’ second complaint should have been dismissed for failure to state a claim

upon which relief may be granted.

                                        II.      Failure to State a Claim

                                              A. Standard of Review

        In determining whether a complaint should be dismissed for failure to state a claim, we

use the “the same standards employed by the district court.” Berrington v. Wal-Mart Stores,

Inc., 696 F.3d 604, 607 (6th Cir. 2012). Thus, we must construe Davis’ complaint in the light

most favorable to her, accept her well-pleaded allegations as true, and draw all reasonable

inferences in her favor. Saab Auto. AB v. Gen. Motors Co., 770 F.3d 436, 440 (6th Cir. 2014).

“Although the complaint need not contain detailed factual allegations, Rule 8(a)(2) of the Federal

Rules of Civil Procedure demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir.

2011) (citations and quotation marks omitted). “A pleading that offers ‘labels and conclusions’

or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).



this Court appears to have taken the position that it does. See Ford v. Harvey, 106 F. App’x 397, 398–99 (6th Cir.
2004). While the Second Circuit has treated § 1915(e)’s prongs governing frivolousness and failure to state a claim
interchangeably, Cieszkowska, 295 F.3d at 205–06 (applying Denton to a case in which the complaint was dismissed
for failure to state a claim), the Eleventh Circuit has taken the position that Denton is inapplicable to § 1915(e)
because, unlike § 1915(d), the latter contains mandatory rather than discretionary language. Harmon, 263 F. App’x
at 845–46. Because we find that Davis’ complaint warranted dismissal in any event based on her failure to state a
claim upon which relief may be granted, we decline to reach this issue today.


                                                        7
                                           No. 15-4372


       Davis brings nine causes of action, pursuant to 42 U.S.C. § 1983 and Ohio law, for:

(1) unlawful seizure; (2) unlawful search of her vehicle; (3) false arrest; (4) false imprisonment;

(5) retaliatory prosecution; (6) intentional infliction of emotional distress; (7) failure to train,

instruct, and supervise; (8) “substantive due process”; and (9) “procedural due process.” We

address each of her claims in turn.

                                             B. Analysis

                                        1. Unlawful Seizure

       Davis’ first cause of action, brought pursuant to § 1983, is for unlawful seizure in

violation of the Fourth Amendment of the United States Constitution. Although she does not

state as much, this claim appears to be based on her March 8, 2014 arrest for drug trafficking and

possession. The trafficking charge was dismissed, but Davis was indicted for misdemeanor

possession.

       “The Fourth Amendment requires probable cause for searches and seizures,” United

States v. Abboud, 438 F.3d 554, 571 (6th Cir. 2006), including warrantless arrests, Logsdon v.

Hains, 492 F.3d 334, 341 (6th Cir. 2007). Thus, “[i]n order for a wrongful arrest claim to

succeed under § 1983, a plaintiff must prove that the police lacked probable cause.” Fridley v.

Horrighs, 291 F.3d 867, 872 (6th Cir. 2002). “[A]n indictment[,] ‘fair upon its face, by a

properly constituted grand jury[,]’ conclusively determines that there was probable cause.”

Bakos v. City of Olmsted Falls, 73 F. App’x 152, 157 (6th Cir. 2003) (emphasis added) (quoting

Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir. 2002)). Because Davis’ complaint alleges no

facts suggesting that the indictment “was not fair on its face or [was] issued by an improperly

constituted grand jury,” her unlawful seizure claim must fail. See id. at 157.




                                                 8
                                           No. 15-4372


                                2. Unlawful Search of Davis’ Vehicle

          Davis’ second claim, also pursuant to § 1983, is based on the unlawful search of her

vehicle. However, as noted in the brief filed by Jones and the county, nowhere in her complaint

does Davis identify which officer—be it Jones, Hollandsworth, or one of the “unknown”

officers—unlawfully searched her vehicle. “As a general rule, mere presence at the scene of a

search, without a showing of direct responsibility for the action, will not subject an officer to

liability.” Ghandi v. Police Dep’t of City of Detroit, 747 F.2d 338, 352 (6th Cir. 1984). Instead,

an officer’s individual liability under § 1983 must be assessed based on his or her own actions.

Binay v. Bettendorf, 601 F.3d 640, 650 (6th Cir. 2010). Because Davis’ complaint contains no

facts from which this Court may infer which officer searched her vehicle, § 1983 liability cannot

attach.

                            3–4. False Arrest and False Imprisonment

          Davis’ third and fourth causes of action are for false arrest and false imprisonment in

violation of Ohio law. Each of these claims is subject to a one-year statute of limitations that

begins to run on the date of the individual’s arrest. Mayes v. Columbus, 664 N.E.2d 1340, 1352

(Ohio Ct. App. 1995) (“‘False arrest’ includes false imprisonment; therefore, the one-year statute

of limitations provided [under Ohio Rev. Code § 2305.11] applies.”).

          Although Davis was arrested on March 8, 2014, she did not file the instant complaint

until May 21, 2015. Since this was more than a year after her arrest, her claims for false arrest

and false imprisonment are barred by the statute of limitations. Further, her cursory references to

equitable tolling, see Reply Br. at 4, 7, cannot save these claims because she has not alleged that

Defendants made a misrepresentation “that was calculated to induce [her] to forego the right to

sue.” See Lottridge v. Gahanna-Creekside Invs., LLC, 36 N.E.3d 744, 752 (Ohio Ct. App. 2015).



                                                 9
                                           No. 15-4372


                                      5. Retaliatory Prosecution

       For her fifth cause of action, Davis alleges that Defendants violated her rights under the

First Amendment by engaging in retaliatory prosecution. “‘[W]ant of probable cause must be

alleged and proven’ by a plaintiff bringing a § 1983 . . . suit for retaliatory prosecution.” Barnes

v. Wright, 449 F.3d 709, 719 (6th Cir. 2006) (quoting Hartman v. Moore, 547 U.S. 250, 252

(2006)). Because, as stated above, the indictment against Davis establishes that there was

probable cause for her arrest and prosecution for misdemeanor drug possession, see Bakos, 73 F.

App’x at 157–58, her retaliatory prosecution claim fails.

                            6. Intentional Infliction of Emotional Distress

       Davis’ sixth cause of action, brought under Ohio law, is for intentional infliction of

emotional distress (“IIED”).

       To establish a claim for [IIED], a plaintiff must prove the following elements:
       (1) the defendant intended to cause, or knew or should have known that his
       actions would result in[,] serious emotional distress; (2) the defendant’s conduct
       was so extreme and outrageous that it went beyond all possible bounds of decency
       and can be considered completely intolerable in a civilized community; (3) the
       defendant’s actions proximately caused psychological injury to the plaintiff; and
       (4) the plaintiff suffered serious mental anguish of a nature no reasonable person
       could be expected to endure.

Lombardo v. Mahoney, No. 92608, 2009 WL 3649997, at *1 (Ohio Ct. App. Nov. 5, 2009)

(citing Ashcroft v. Mt. Sinai Med. Ctr., 588 N.E.2d 280, 284 (Ohio Ct. App. 1990)). Davis’ IIED

claim, which is based on her bare assertion that the conduct described in her complaint

“constitute[d] intentional infliction of severe emotional distress, and was malicious, wanton, or

reckless, shocking to the conscience or outrageous,” (R2. 1, ¶ 33), epitomizes the type of

conclusory statements that the Supreme Court has held subject a claim to dismissal. See Iqbal,

556 U.S. at 678. Accordingly, this claim fails.




                                                  10
                                                  No. 15-4372


                                  7. Failure to Train, Instruct, and Supervise

        Davis’ seventh cause of action is a § 1983 claim based on Defendants’ alleged “breach of

[the] duty to train, instruct, and supervise.” (R. 1, ¶ 36). In order to state a failure-to-train claim

against the county, Davis must allege “prior instances of unconstitutional conduct demonstrating

that the municipality had ignored a history of abuse and was clearly on notice that the training in

this particular area was deficient and likely to cause injury.” Burgess v. Fischer, 735 F.3d 462,

478 (6th Cir. 2013) (citation, quotation marks, and brackets omitted). Because Davis alleges no

facts indicating that the county knew of prior unconstitutional conduct on the part of its officers,

her failure-to-train claim must fail as to the county. See id. Relatedly, although Davis sued

Jones and Hollandsworth in their official and individual capacities, her official-capacity claim

fails for the same reason as her municipal liability claim. See Essex v. Cty. of Livingston, 518 F.

App’x 351, 355 (6th Cir. 2013) (“[A]n official-capacity claim is merely another name for a claim

against the municipality.”). Finally, Davis’ individual-capacity claim fails because her complaint

does include allegations indicating that Jones or Hollandsworth “implicitly authorized, approved,

or knowingly acquiesced” in the offending officers’ unconstitutional conduct.6 Phillips v. Roane

Cty., Tenn., 534 F.3d 531, 543 (6th Cir. 2008) (citation and quotation marks omitted).

                                             8. Substantive Due Process

        Davis’ eighth cause of action is styled as a § 1983 claim based on the denial of

substantive due process. However, “[w]here a particular [constitutional] Amendment provides

an explicit textual source of constitutional protection against a particular sort of government


        6
           Although Davis attempts to supplement (to some degree) her threadbare allegations in her reply brief, see
Reply Br. at 8–9, “[t]he appropriate method for adding new factual allegations to a complaint is not via an appellate
brief, but by filing an amended complaint.” Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 328 (6th Cir. 2006).
That being said, as explained below, Davis has waived any argument that the district court erred by denying leave to
amend.


                                                        11
                                              No. 15-4372


behavior, that Amendment, not the more generalized notion of substantive due process, must be

the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality

opinion) (internal quotation marks omitted) (quoting Graham v. Connor, 490 U.S. 386, 395

(1989)). As indicated above, it is the Fourth Amendment that governs the unlawful search and

seizure claims set forth in Davis’ complaint. Thus, her attempt to link her eighth cause of action

to the more “scarce and open-ended guideposts” of the Fourteenth Amendment is unpersuasive.

See Albright, 510 U.S. at 275 (citation and quotation marks omitted); see also, e.g., Choate’s Air

Conditioning & Heating, Inc. v. Light, Gas, Water Division of City of Memphis, 16 F. App’x

323, 330 (6th Cir. 2001) (rejecting the plaintiff’s attempt to “repackage[]” his takings claim

under the Fifth Amendment as a substantive due process claim under the Fourteenth

Amendment).

                                      9. Procedural Due Process

       Davis’ ninth cause of action, also brought under § 1983, is for denial of procedural due

process. “To establish a procedural due process claim, a plaintiff must show (1) the existence of

a protected property interest at issue, (2) a deprivation of that protected property interest, and

(3) that he or she was not afforded adequate procedures.” Paterek v. Vill. of Armada, Mich., 801

F.3d 630, 649 (6th Cir. 2015). Davis’ complaint fails to identify the protected property interest

she seeks to vindicate, describe the deprivation thereof in a way that permits the Court to parse it

out from the other allegations in her complaint, or explain the procedural shortcomings that

precipitated such deprivation. Accordingly, her procedural due process claim fails.

                                       III.     Leave to Amend

       Finally, although the final page of Davis’ opening brief requests that we reverse the

district court’s order denying her leave to amend her complaint, Appellant’s Br. at 22, her brief



                                                  12
                                          No. 15-4372


neither identifies the denial of leave to amend as an issue before us, id. at 1–2, nor offers any

developed argumentation as to why the district court’s decision—including its determination that

granting leave to amend would be futile because Davis failed to state a claim upon which relief

may be granted—was in error. Accordingly, this argument is waived. See Barrett v. Detroit

Heading, LLC, 311 F. App’x 779, 796 (6th Cir. 2009) (finding waiver based on failure to include

issue in “issues presented for review”); Smoot v. United Transp. Union, 246 F.3d 633, 647 (6th

Cir. 2001) (“This Court deems issues presented in a perfunctory manner on appeal to have been

waived.”).

                                        IV.     Conclusion

       Because Davis has failed to state a claim upon which relief may be granted, we AFFIRM

the judgment of the district court.




                                               13
                                        No. 15-4372


       ROGERS, Circuit Judge, concurring. I concur and join all of the majority opinion except

for Part I of the Discussion.




                                             14
