              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 11a0470n.06

                                        No. 09-4229

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                                                                                   FILED
MICHAEL C. BERTOVICH,                                                          Jul 12, 2011
                                                                        LEONARD GREEN, Clerk
       Plaintiff-Appellant,

              v.                                               On Appeal from the United
                                                               States District Court for the
VILLAGE OF VALLEY VIEW, OHIO,                                  Northern District of Ohio at
                                                               Cleveland
       Defendant-Appellee.


                                                         /

Before:        GUY, BOGGS, and GIBBONS, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.          F ollow ing a bar fight in a restau ran t

involving plaintiff Michael C. Bertovich and an auxiliary police officer, Bertovich filed suit

under 42 U.S.C. § 1983 against the restaurant; the auxiliary officer; the Village of Valley

View, Ohio; and Valley View police officers. The district court dismissed Bertovich’s

Fourteenth Amendment claims against Valley View, based on the Village’s Fed. R. Civ. P.

12(b)(6) motion. Bertovich appeals that ruling, asserting that he stated legally sufficient

claims against the Village of Valley View for violations of his rights to equal protection and

due process. Finding no error on the part of the district court, we affirm.
No. 09-4229                                                                                           2

                                                   I.

A.      Factual Background

        The following factual background comes from Bertovich’s First Amended Complaint.

On an evening in July 2005, Bertovich and his father were at the bar of the Quaker Steak and

Lube restaurant in Valley View, Ohio. When Bertovich hugged his father, another patron

at the bar (now known to be Lino Bartolozzi) called Bertovich and his father “faggots,”

following which Bertovich gestured and spoke offensively to Bartolozzi.

        Bertovich alleges that he and his father then moved to a bar on the patio, but were

followed by Bartolozzi and another man. A physical fight ensued. Bertovich alleges that

after a bartender collared his father, Bertovich was jumped from behind by Thomas Cooke,

an “auxiliary” Euclid, Ohio police officer and Valley View business owner. Bertovich was

transported by ambulance to the Metro Health Medical Center where he underwent

emergency surgery on his right leg, which suffered a compound fracture during Cooke’s

attack. Bertovich alleges permanent injury and pain to his leg as a result of Cooke’s actions.

        Valley View police officers arrived at the scene shortly after the incidents described

above. Bertovich asserts that once officers learned that it was Cooke who had been described

as the assailant, the officers deliberately failed to conduct a proper investigation. Bertovich

alleges that this failure was because of the officers’ familiarity with Cooke and Cooke’s

status as both an auxiliary officer in a nearby town and a partner in a Valley View business.1

Bertovich alleges that he requested a thorough investigation of the incident and requested

       1
        Bertovich also alleges the police officers did not pursue an investigation because they disliked
Bertovich and his father, who is a former city councilman.
No. 09-4229                                                                                      3

that Valley View charge Cooke with a crime, but it never happened. He also claims that after

he collected witness statements (because Valley View refused to investigate), he was

informed by the police that a special prosecutor would be assigned to “assess” the situation,

but no such action was ever taken.

B.     Procedural Background

       Bertovich first sued Cooke and the owners of Quaker Steak and Lube in state court.

That complaint was dismissed without prejudice in April 2007. Later that year, Bertovich

filed a complaint in federal district court against Valley View and “John Doe” police officer

defendants.2 As to Valley View, Bertovich asserted a deliberate failure to investigate and

protect, both because Valley View was (1) acting on a personal animus against Bertovich,

and (2) protecting Cooke, who owned a business in Valley View and had connections to the

police department.         Bertovich alleged Valley View’s action and/or inaction violated

Bertovich’s constitutional rights to equal protection and due process of law.

       Bertovich was granted leave by the district court to file an amended complaint, in

which he added claims against Cooke and Quaker Steak and Lube. Valley View again

moved to dismiss the claims brought against it, and the district court granted that motion the

following September. Subsequently, the district court granted Quaker Steak and Lube’s

motion for summary judgment, and Bertovich’s claims against Cooke went to trial by jury.

The jury returned a verdict in Bertovich’s favor in August 2009. Following the trial,

Bertovich filed an appeal of the district court’s dismissal of his claims against Valley View.


       2
           It does not appear that these “John Doe” defendants were ever identified or served.
No. 09-4229                                                                                          4

                                                      II.

       We review de novo the district court’s determination on a Fed. R. Civ. P. 12(b)(6)

motion to dismiss. Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir. 2008), cert. denied, 129

S. Ct. 905 (2009). The complaint is construed in the light most favorable to the plaintiff, and

well-pleaded factual allegations are accepted as true. Terry v. Tyson Farms, Inc., 604 F.3d

272, 274 (6th Cir. 2010) (citation omitted), cert. denied, 131 S. Ct. 1044 (2011).

       Bertovich’s First Amended Complaint contains six counts. Only the first three counts

apply to Valley View. These are: (1) “Violation of Due Process and Equal Protection of

Law under 42 U.S.C. § 1983”; (2) “Unlawful Policy of the Village of Valley View”; and (3)

“Unlawful conspiracy to deprive Plaintiff of Constitutional Rights,” which is not before us

on appeal.3 In the first count, Bertovich alleges that Valley View and its police officers

       deprived Plaintiff of due process and equal protection of the law by failing to
       meaningfully investigate and assess the facts of the incident and by protecting
       and shielding Cooke from investigation, liability, and prosecution and by being
       motivated by personal animus against the Plaintiff such that no rational basis
       existed for not taking appropriate action in relation to the incident.

The second count asserts that

       [t]he Village is liable to the Plaintiff because its actions and inaction as alleged
       hereinabove were the result of an unconstitutional policy to not investigate
       crimes and to shield actors from liability, both criminal and civil, as a result of
       their status as business owners in the Village and/or persons who are related
       to the police department.

       Valley View brought its “motion to dismiss plaintiff’s first amended complaint in

part,” requesting that the district court dismiss the first three counts of Bertovich’s First


       3
           Bertovich does not reference this claim in his briefs and has thus waived it on appeal.
No. 09-4229                                                                                              5

Amended Complaint. Bertovich did not respond to the motion. Rather than dispose of the

motion on the basis that Bertovich had not filed any opposition, however, the district court

made its determinations on the merits.4

        Citing Radvansky v. City of Olmsted Falls, 395 F.3d 291 (6th Cir. 2005), the district

court listed the three types of discrimination by a government entity that are prohibited by

the equal protection clause of the Fourteenth Amendment: (1) burdening of a fundamental

right; (2) targeting a suspect class; and (3) treatment of one differently than another similarly

situated without a rational basis for the difference. Id. at 312. The district court found that

because Bertovich had no constitutional right to a criminal investigation, he had not stated

a claim for the first type of equal-protection violation. Noting that Bertovich had not alleged

that he was a member of any suspect class, the district court disposed of the second type.

Concerning the third type of discrimination, the district court found Bertovich had not

alleged any facts concerning similarly situated individuals.

        On the due-process claim, the district court determined that Bertovich had failed to

state a claim for procedural due process, for the reason that he had not alleged the deprivation

of either a property or a liberty interest. The district court also found Bertovich had failed

to state a claim for a violation of his substantive-due-process rights, because Bertovich had

no constitutional right to the criminal investigation of another. The district court next

addressed Bertovich’s assertion in Count II that his constitutional rights were violated by



        4
        Valley View’s appellate brief first asserts that Bertovich thus waived his opposition to dismissal.
Because the district court did not dismiss the case on the basis of waiver, however, we will address the
merits.
No. 09-4229                                                                                     6

Valley View’s alleged “policy” not to investigate crimes of persons who own businesses in

Valley View, or who are connected in some way to a police department. Noting its

determination that Bertovich had not alleged any constitutional injury, the district court also

dismissed this claim.

       On appeal, Bertovich generally asserts that his claims “had sufficient legal plausibility

and factual content to allow the district court to draw the reasonable inference . . . that Valley

View violated Appellant’s right to equal protection and due process.” He concedes that he

does not make any equal-protection claim based on the burdening of a fundamental right or

the targeting of a suspect class. Rather, he argues that he is a “class of one” who was treated

differently than similarly situated individuals without a rational basis for the different

treatment. See Cruz v. Town of Cicero, 275 F.3d 579, 587 (7th Cir. 2001); Squaw Valley

Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004). Concerning his due-process claim,

he asserts that he pleaded facts showing sufficiently egregious government action to

constitute a violation. We will address the pertinent allegations in turn.

A.     Equal Protection

       A “class of one” equal protection claim is one in which a plaintiff alleges that he or

she has been “intentionally treated differently from others similarly situated and that there

is no rational basis for the difference in treatment.” See Village of Willowbrook v. Olech, 528

U.S. 562, 564 (2000). “A ‘class of one’ plaintiff may demonstrate that government action

lacks a rational basis either by negativing every conceivable basis which might support the

government action, or by showing that the challenged action was motivated by animus or ill-
No. 09-4229                                                                                               7

will.” TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cnty., Ohio, 430 F.3d 783, 788 (6th Cir.

2005) (citing Warren v. City of Athens, Ohio, 411 F.3d 697, 710-11 (6th Cir. 2005)). In

dismissing this claim, the district court found that Bertovich had failed to “allege any facts

from which one might conclude he was treated differently from others that are similarly

situated.” A close examination of the factual allegations confirms that Bertovich does not

point to any individual who was treated differently, and makes no allegation that any other

individual had been able to effect a criminal investigation by his or her request. In fact,

Bertovich himself acknowledges that there was an investigation, but asserts that such

investigation was only “cursory.” Bertovich has not pointed to any facts supporting his

contention that a similarly situated victim, without the alleged adversarial relationship with

municipal leadership, would enjoy a higher level of attention from law enforcement.

        Had we determined that Bertovich’s allegations satisfied the differential-treatment

pleading requirement, he would nonetheless have failed to state a claim. This is because his

allegations also fall short concerning Valley View’s lack of a rational basis for the treatment.

Although Bertovich makes allegations concerning an “animus” held against him by the

Village of Valley View, and Valley View’s “desire . . . to protect Cooke from both civil and

criminal liability,” his allegations include no specific information.5

        Bertovich’s complaint asserts that Valley View police “refused to interview relevant

and credible witnesses,” and “generally ‘blew off’ the incident.” Concerning the “animus,”


        5
         Valley View asserts that Bertovich’s allegations also fail because he does not allege that the
“animus” driving the acts he attributes to Valley View was an official policy or custom. We need not address
the application of Monell v. New York City Department of Social Services, 436 U.S. 658 (1978), to
Bertovich’s claims, as we have disposed of them on other grounds.
No. 09-4229                                                                                                   8

Bertovich alleged that the inaction occurred “in part because Cooke was an auxiliary police

officer in the City of Euclid and was the part owner of a business in Valley View,” and

because “Plaintiff and his father were known to [the police] and they assumed, without

evidence or support, that the incident giving rise to Plaintiff’s injury was somehow his fault

when, in fact, Cooke violently and without provocation attacked the Plaintiff from behind

and severely injured him.” Bertovich has not supported any of these conclusory allegations

with any further factual allegations.6

        We note, finally, the district court’s alternative finding that if the complaint were read

to allege that Bertovich was similarly situated to Cooke, but received different treatment, his

claim would also fail. Bertovich does not allege differential treatment of Cooke and

Bertovich as he acknowledges that neither was prosecuted following the altercation. Valley

View addresses this finding in its assertion that

               [t]o properly allege that the Village violated Bertovich’s right to equal
        protection of the law, Bertovich would, at the very least, have to allege that
        either he was not shielded from investigation and/or prosecution—as he
        alleges Cooke was—and that Bertovich and Cooke were similarly situated, or;
        that the Village investigates similarly situated individuals’ complaints in a
        decidedly more robust manner than it investigated the incident involving
        Bertovich and Cooke.



        6
          Bertovich cites to various cases discussing “class of one” equal protection claims, including that
of Esmail v. Macrane, 53 F.3d 176, 178 (7th Cir. 1995), a case in which the Seventh Circuit found the
plaintiff had stated an equal protection claim and reversed the district court. We note the vast difference
between the pleadings in this case and those in Esmail, where a Naperville, Illinois liquor store owner who
was twice denied the issuance of a retail liquor license (purportedly on the basis of a past, trivial, ordinance
infraction) made an equal protection claim against the city’s mayor, among other defendants. Esmail claimed
the denials were due to personal animus on the part of the mayor, and attributed it to certain, specific
interaction which had occurred in the past. Moreover, Esmail gave a specific list of examples of individual
liquor dealers who had infractions more serious than Esmail’s, and who were treated more favorably than
Esmail. No such factual pleading exists in the case at bar.
No. 09-4229                                                                                                   9

(Emphasis added.) Bertovich has done neither, and as discussed above, has included no

factual allegations from which to infer the lack of a rational basis for Valley View’s actions.

His complaint simply falls short of what is required for this claim.

B.       Due Process

         Bertovich makes no argument about procedural due process. He maintains that he

was deprived of his right to substantive due process, however, because Valley View

conducted “essentially no investigation of the circumstances which led to his severely

fractured leg.” 7

         To state a claim of substantive due process, Bertovich must allege facts that would

establish that “(1) a constitutionally protected property or liberty interest exists, and (2) the

constitutionally protected interest has been deprived through arbitrary and capricious action.”

Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir. 2008). However, individuals

have no “judicially cognizable interest in the prosecution or nonprosecution of another.”

Diamond v. Charles, 476 U.S. 54, 64 (1986) (quoting Linda R.S. v. Richard D., 410 U.S.

614, 619 (1973)); Lopez v. Robinson, 914 F.2d 486, 494 (4th Cir. 1990). We have similarly

noted that citizens have “no statutory or common law right, much less a constitutional right,

to an investigation.” Mitchell v. McNeil, 487 F.3d 374, 378 (6th Cir. 2007). Recognizing

this, the district court properly determined that Bertovich had no substantive due process

claim.


         7
          Bertovich suggests, without support, that his liberty interest was impaired as a result of the failure
to investigate Cooke. He also asserts that the failure to investigate was “designed to protect [Cooke] from
either civil or criminal liability” in spite of the fact that he successfully pursued his civil remedies against
Cooke.
No. 09-4229                                             10

      The judgment of the district court is AFFIRMED.
