                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 14a0799n.06

                                           No. 12-4429


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

JENNIFER LEECH, et al.,                          )                                FILED
                                                 )                           Oct 22, 2014
       Plaintiffs-Appellants,                    )                      DEBORAH S. HUNT, Clerk
                                                 )
v.                                               )
                                                       ON APPEAL FROM THE UNITED
                                                 )
                                                       STATES DISTRICT COURT FOR THE
JOHN MAYER, et al.,                              )
                                                       NORTHERN DISTRICT OF OHIO
                                                 )
       Defendants-Appellees.                     )
                                                 )
                                                 )



       BEFORE: COLE, Chief Judge; DAUGHTREY and WHITE, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Following plaintiff Edwin Griffeth=s

arrest and incarceration for violating conditions of his Arelease supervision,@ Griffeth and co-

plaintiff Jennifer Leech filed suit against 27 officials and agencies of the State of Ohio, alleging,

among other claims, that those defendants conspired to deprive Griffeth and Leech of rights

guaranteed them under the First, Second, Fourth, and Fourteenth Amendments to the United

States Constitution. Through the course of the ensuing litigation, a number of those claims and

defendants were dismissed voluntarily by the parties, and the district court granted dispositive

motions in favor of other defendants. On appeal, the plaintiffs now contest only two of those

district court=s orders:   one that granted qualified immunity to defendant John Mayer on

numerous conspiracy claims and allegations premised upon the provisions of 42 U.S.C. ' 1983;

and a second order that granted a motion to dismiss § 1983 claims by the plaintiffs against

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No. 12-4429         Leech v. Mayer


defendants Lee Sampson, Ron Nelson, Russell Daubenspeck, Dave Lomax, and Lazarus Todd.

For the reasons discussed below, we reject the arguments put forth by Leech and Griffeth and

affirm the judgment of the district court.

                     FACTUAL AND PROCEDURAL BACKGROUND


       In order to place the actions of the parties to this appeal in the proper context, it is

necessary to recap events dating back as far as May 2004. At that time, a high-school student,

less than two weeks shy of her eighteenth birthday, attended a party hosted by Alex Griffeth,

plaintiff Edwin Griffeth=s son. Edwin was also present at the party, and at some point during the

evening, he invited the female student to share a special stash of Areally good marijuana@ with

him. After taking three bong hits with Edwin, Athings became blurry@ for the young woman due,

she believed, to the fact that she had ingested marijuana previously that evening and also had

consumed five beers. The next thing she remembered, Edwin Griffeth had removed her pants

and underwear and had inserted his penis into her vagina.


       Approximately three weeks later, on June 5, 2004, Alex Griffeth hosted another party,

this time to celebrate his high-school graduation. The partygoers again participated in beer-

drinking and marijuana-smoking. One of the guests at the party, an 18-year-old female, admitted

that, after consuming two-and-a-half beers and taking two hits of marijuana, she engaged in

consensual intercourse with Alex Griffeth in the Griffeth home. Not feeling well, however, she

remained in the bedroom and fell asleep after Alex rejoined the party. Sometime later, she

awoke to find herself naked, with plaintiff Edwin Griffeth on top of her, raping her vaginally.


       Following the report of these two sexual assaults, criminal prosecution ensued, Edwin

Griffeth pleaded guilty in Ohio state court to two counts of sexual battery, and he was sentenced


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No. 12-4429         Leech v. Mayer


by Common Pleas Court Judge James DeWeese on October 4, 2004, to four years in state prison.

Incarceration was to be followed by five years of Acommunity control@ overseen by the Ohio

Adult Parole Authority (OAPA). On November 7, 2006, however, after serving only two years

of his four-year prison term, Griffeth was granted Ajudicial release@ by Judge DeWeese and was

ordered to begin his five-year parole stint.


       Before beginning his period of supervision, Griffeth signed and dated documents that

indicated his agreement to abide by certain ASpecial Conditions of Supervision@ and ASex

Offender Special Conditions.@ Among the relevant restrictions on the plaintiff=s liberty, Griffeth

agreed to:


       Secure written permission of the supervising officer before leaving the county of
       residence.

       Maintain a 10:00 P.M. to 5:00 A.M. curfew in [his] residence, unless [he]
       obtained written permission from [his] probation/parole officer.

       [N]ot possess, own, use, or have under [his] control a police scanner, pager
       device, cellular telephone or two-way radios.

       [N]ot form a relationship with a man or woman who has physical custody of
       children without the knowledge and permission of [his] supervising officer.

       [N]ot drive or ride in a motor vehicle with females without the knowledge and
       permission of [his] supervising officer.


       At the time that Griffeth was released from prison, defendant John Mayer served as a

supervisor of the Mansfield Unit of the OAPA. In that capacity, however, Mayer was not

directly responsible for Griffeth=s supervision. In fact, Mayer=s supervision of Griffeth would

have involved an improper conflict of interest due to the fact that Griffeth had developed a

personal relationship with Mayer=s ex-wife, plaintiff Jennifer Leech.



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No. 12-4429        Leech v. Mayer


        Indeed, the appellate record indicates that Leech and Griffeth first met in 2004 when

Leech, then still single, purchased a car from Griffeth=s family=s automobile dealership.

According to Leech, the two became friends and, on one Fourth of July, accompanied each other

to dinner and a fireworks display. Leech initially kept in contact with Griffeth through letters

and phone calls while he was in prison, but she eventually broke off the relationship because

A[she] was just uncomfortable with it. [She] didn’t see the sense in continuing a relationship at

that point.@


        In June 2007, Leech married defendant Mayer, but the union Awas very rocky

from . . . the day before the wedding.@ By April 2008, the couple had separated, and on August

18, 2008, Leech was granted a divorce from Mayer. As part of that divorce decree, both Leech

and Mayer were Apermanently mutual[ly] enjoined and restrained from bothering, harassing or

annoying the other.@


        According to testimony provided by Leech at an administrative hearing, however, Mayer

failed to keep up his end of that bargain. Plaintiff Leech asserted that Mayer continued to send

her letters, make telephone calls to her, follow her around town, and Acoincidentally@ cross paths

with her every morning and every afternoon. In fact, the alleged stalking and harassment

became so bad that Leech contacted the Mansfield Police Department to complain. The police

apparently telephoned Mayer and told him to cease contacts with his ex-wife. Mayer=s employer,

the OAPA, also ordered him not to contact Leech.


        Around that same time period, Leech and Griffeth rekindled their friendship. Although

both plaintiffs claimed that their relationship was not romantic in nature, Mayer obviously

thought differently.   Those suspicions were heightened in early August 2008, prior to the


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No. 12-4429         Leech v. Mayer


finalization of Mayer=s and Leech=s divorce, when Leech accompanied Griffeth on a trip to

Florida.


       Although Griffeth had obtained permission from his parole officer, defendant

Daubenspeck, to take a nine-day trip to Clearwater, Florida, with his mother in order to

Avisit/repair property,@ it became clear that Leech, not Griffeth=s mother, actually traveled with

plaintiff Griffeth. Nevertheless, Leech explained that she and Griffeth only flew to Florida and

back together, and did not see each other at all in Florida, other than at the airport.


       Further tension between Leech and Mayer surfaced when the couple=s divorce became

final and Mayer asked Leech to return a service firearm he had given her previously for her

protection. Leech did not return the gun immediately because she had given it to her brother in

exchange for a smaller, more manageable firearm. Consequently, Mayer enlisted the assistance

of a Richland County assistant prosecutor who informed Leech, through Leech=s attorney, that

felony charges would be sought if the weapon was not returned. In the end, the gun was returned

to Mayer.


       Mayer, convinced that Leech was having an affair with Griffeth, continued to follow his

ex-wife as she drove around town. Then, on November 20, 2008, Mayer drove by Leech=s home

at approximately 5:00 a.m. and claimed to have observed Griffeth=s car parked outside the

residence. Had Griffeth in fact been at Leech=s home at that hour, he would have been in

violation of his curfew restrictions, as well as other conditions of his supervised release from

incarceration. Leech nevertheless vehemently denied that Griffeth spent the night at her house

on November 19, 2008, or that Griffeth=s car was parked in front of her home at 5:00 a.m. on

November 20, 2008.


                                                  5
No. 12-4429        Leech v. Mayer


       In any event, Mayer became increasingly distraught throughout the day at the idea that

his ex-wife was friendly with a convicted sex offender and even asked his employer if he could

use accrued vacation time rather than completing his normal work day. In an incident report

filed the following day, Mayer described some of the pertinent events of the evening of

November 20, 2008, after he left work early:


       At approximately 5:00 PM, I met Richland County Probation Chief Dave
       Leitenberger for drinks at the Red Fox on Marion Avenue. I had approximately 4
       beers and stopped drinking at 6:00 PM. I then went back to my house and then
       left at 7:00 PM, driving around the countryside due to being stressed, and
       knowing that I had observed the offender=s vehicle at my ex-wife=s house. At
       approximately 8:30 PM, I drove by the offender=s residence at 424 Vanderbilt
       Road, Mansfield, Ohio. By driving by his house, I saw him in his car, along with
       my ex-wife sitting in the passenger seat. I got out of my car to stop him and to
       tell him that he is not to have any contact with my ex-wife. It should be noted
       that he did not stop but accelerated and I had to move out of the way. He could
       have possibly hit me with his car. He then traveled to S.R. 13 and I follow[ed]
       him. I called the Richland County Sheriff=s Department and explained that I had a
       sex offender that I wanted stopped who was in his vehicle. Offender Griffeth,
       who was driving, circled back around to his house and I followed behind him. I
       got out of the car, so did the offender and my ex-wife. I told the offender that he
       was not authorized to be over at my ex-wife=s home this same morning around
       5:00 AM, which is in violation of his conditions of supervision. At this time, the
       Bellville Police and State Highway Patrol pulled up and told him that he was in
       violation of his supervision for having unauthorized contact with my ex-wife and
       her daughter. I know that P.O. Daubenspeck did not give the offender permission
       to be out past curfew and to be at my ex-wife=s house. The offender also did not
       stop his vehicle and I had to move out of the way so I would not be hit. The
       Bellville police officer arrested the offender and took him to the Richland County
       Jail.


       Not surprisingly, the plaintiffs had a slightly different take on the professionalism, or lack

thereof, displayed by Mayer that evening. Leech explained that Mayer did indeed follow the

vehicle that Griffeth was driving and in which she was a passenger. She claimed though that

Mayer drove so close to their rear bumper that they could not see the front end of his vehicle, no

Amatter how fast or how slow [they] went.@ Eventually, Griffeth pulled into the driveway of

                                                 6
No. 12-4429        Leech v. Mayer


Griffeth=s mother=s home, which was located next door to Griffeth=s own residence. Mayer

parked his vehicle so as to block egress from the driveway, exited his car, and approached

Griffeth, yelling, AI=m going to get you now, you son-of-a-bitch.@ According to Leech, Mayer

then screamed violently at her that she had ruined his life and embarrassed their families by

choosing Aa sex offender over him.@ She also claimed that she detected the odor of alcohol on

Mayer at that time, and Griffeth testified at a subsequent hearing that Mayer Astunk like booze.@


       When uniformed police officers arrived on the scene, Mayer confiscated Griffeth=s cell

phone and Griffeth was transported to the local jail. Approximately 45 minutes later, sometime

between 10:00 and 10:30 p.m., Mayer appeared at the jail with the paperwork necessary to hold

Griffeth in custody on the alleged probation violations. At that time, Sergeant James Sweat of

the Richland County Sheriff=s Office spoke with Mayer about the incidents of that evening and

made the following observations about the probation officer:


       As we talked, it was obvious that P.O. Mayer had been consuming alcohol. He
       had a strong odor of alcohol about his person and breath. His eyes were bloodshot
       and glassy. He was upset.

                                             *****

       [H]e was obviously intoxicated, under the influence of alcohol, a strong odor of
       alcohol. It wasn=t just fresh alcohol odor. It was an older odor of alcohol and it
       appeared to be consistent with liquor, not beer.

       As I said, his words were every now and then slightly slurred. His eyes were
       bloodshot and glassy. I don=t think that he was intoxicated to the point where he
       couldn=t walk or talk, but he was definitely beyond that of operating a motor
       vehicle in my opinion or being out walking down the street by himself.




                                                7
No. 12-4429         Leech v. Mayer


Consequently, Sweat informed Mayer that he would not be able to drive himself home. Mayer,

despite denying that he was intoxicated, then called an acquaintance who arrived at the station

and departed with him.


         At approximately 11:30 p.m. on November 20, 2008, Leech received a phone call

originating from Edwin Griffeth=s cell phone. When she answered, however, Mayer was on the

other end exclaiming again, AI cannot believe you chose a sex offender over me. That=s a really

good role model for [my daughter] Demi.@ Before 8:00 a.m. the following morning, Leech

received another phone call from Mayer, this one from Mayer=s own phone. Once again, Mayer

berated Leech for choosing a sex offender over him before Leech ended the call.


         At 8:00 a.m. on November 21, 2008, Mayer met with his supervisor, defendant David

Lomax. Although Mayer did not recall exactly what was said at that meeting, he conceded that

Lomax could have ordered him to have no further contact with Griffeth and no further

involvement in Griffeth=s case. In any event, however, on November 24, 2008, Mayer arranged a

meeting with Judge DeWeese and explained to the judge that, in light of the events of November

20, Mayer now believed that he had a conflict of interest in the case and that supervision of

Griffeth=s release should be transferred from the OAPA to the Richland County Probation

Department. Judge DeWeese agreed, and in ordering the transfer, also included additional

ASpecial Conditions of Supervision@ with which Griffeth agreed to comply. Included in those

special conditions was Griffeth=s agreement to Aavoid association@ with Jennifer Leech and Demi

Leech.


         Even though Mayer was eventually removed from his position with the OAPA, and even

though that removal decision was affirmed both by an administrative body and by the Court of


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No. 12-4429        Leech v. Mayer


Common Pleas for Franklin County, Ohio, Griffeth=s troubles stemming from the events of

November 20, 2008, were not yet over. On March 22, 2010, Griffeth=s new supervising officer,

Jason Hoover, filed with Judge DeWeese four allegations of violations of Griffeth=s conditions of

supervision. After an evidentiary hearing, Judge DeWeese found that the testimony adduced at

the hearing was sufficient to support three of those allegations. Specifically, the judge concluded

that Griffeth violated the prohibition on associating with Jennifer Leech both by allowing Leech

to live in his house (even though Griffeth claimed that he himself had moved to a home a few

doors away) and by allowing Leech free use of a car from a dealership that Griffeth managed.

Judge DeWeese further concluded that Griffeth had not been Atruthful, respectful and cooperative

with all law enforcement officers, supervision officers and court personnel@ when he falsely

denied that he had traveled to Florida with Jennifer Leech.


       Having found that Griffeth violated conditions of his supervision, Judge DeWeese

sentenced Griffeth to six months at the Community Alternative Center. The order further

provided that AJennifer Leech is to be removed from the home owned by the defendant and

vehicle associated with his business.@


       Less than two months later, Griffeth and Leech filed this action in federal district court,

naming Mayer and 26 other individuals and government agencies as defendants. The plaintiffs=

complaint, coupled with a later-filed amended complaint, contained 284 numbered paragraphs

that made allegations of conspiracy; violations of the Racketeer Influenced and Corrupt

Organizations Act, 18 U.S.C. '' 1961-1968 (RICO); malicious prosecution; municipal liability;

due process violations; equal protection violations; and, pursuant to 42 U.S.C. ' 1983, violations

of the plaintiffs= First, Second, Fourth, and Fourteenth Amendment rights. Through a series of

district-court orders and voluntary dismissals, the plaintiffs= claims against all defendants were

                                                9
No. 12-4429        Leech v. Mayer


ultimately dismissed, and the action was terminated on October 11, 2012. Plaintiffs Griffeth and

Leech then filed a notice of appeal seeking to overturn the district court=s dismissal of claims

against five OAPA defendants and the district court=s grant of summary judgment to defendant

Mayer based on qualified immunity grounds.


                                         DISCUSSION


Claims Against Defendant Mayer


       In five separate issues, plaintiffs Griffeth and Leech contend that the district court erred

in granting summary judgment to defendant Mayer on qualified immunity grounds on the

plaintiffs= claims that Mayer violated their First, Second, Fourth, and Fourteenth Amendment

rights. We review de novo the grant of summary judgment by a district court. See Dodd v.

Donahoe, 715 F.3d 151, 155 (6th Cir. 2013). Summary judgment will be granted Aif the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.@ Fed R. Civ. P. 56(a). A genuine dispute of material fact exists

only when, assuming the truth of the non-moving party=s evidence and construing all inferences

from that evidence in the light most favorable to the non-moving party, there is sufficient

evidence for a trier of fact to find for that party. A non-moving party cannot withstand summary

judgment, however, by introduction of a Amere scintilla@ of evidence in its favor. See Ciminillo

v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006).


       The doctrine of qualified immunity developed in order to provide protection from civil

liability under 42 U.S.C. ' 1983 for government officials in the performance of discretionary

duties. However, such protection is available only if the officials= Aconduct does not violate

clearly established statutory or constitutional rights of which a reasonable person would have

                                                   10
No. 12-4429        Leech v. Mayer


known.@ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Consequently, in order to determine

whether any defendant is shielded by qualified immunity, Awe apply the two-prong Saucier test

and inquire (1) whether the officer violated a constitutional right and (2) if so, whether that

constitutional right was clearly established such that a >reasonable official would understand that

what he is doing violates that right.=@ Simmonds v. Genesee Cnty., 682 F.3d 438, 443-44 (6th

Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001) (internal quotation marks

omitted), abrogated in part by Pearson v. Callahan, 555 U.S. 223, 236 (2009)). AA court of

appeals may exercise its discretion to decide which prong of the test to address first in light of

the circumstances of the case.@ Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011) (citing

Pearson).


       1. Interference with Plaintiffs= Freedom of Association


       When choosing to address first the question whether an official violated a constitutional

right, a court Amust identify >the specific constitutional right allegedly infringed.=@ Simmonds,

682 F.3d at 444 (quoting Graham v. Connor, 490 U.S. 386, 394 (1989)). Initially, Griffeth and

Leech argue that Mayer violated their First Amendment right to freedom of association by

Aauthor[ing], insert[ing], and/or implement[ing]@ the restriction in Griffeth=s ASpecial Conditions

of Supervision@ that Griffeth Aavoid association with@ Leech. More specifically, the plaintiffs

contend that, despite being ordered not to have further involvement in Griffeth=s supervision after

the incident on November 20, 2008, during which a drunken Mayer caused Griffeth to be held on

charges that he violated the terms of his court-supervised release, Mayer, in fact, convinced

Judge DeWeese to forbid contact between the plaintiffs. Assuming, for the sake of argument,

that Mayer requested inclusion of the term prohibiting contact between Griffeth and Leech, it

was Judge DeWeese who actually ordered the associational separation. See Leech v. DeWeese,

                                                11
No. 12-4429        Leech v. Mayer


689 F.3d 538, 541 (6th Cir. 2012) (AAt this time, Judge DeWeese placed an additional condition

on Griffeth prohibiting Griffeth from having any contact with Leech or with Leech=s minor

daughter.@ (Emphasis added.)). Mayer thus cannot be held responsible for actions undertaken by

the judge with Ajurisdiction over matters related to Griffeth=s early release from jail and his

community control sanctions, including the condition prohibiting Griffeth=s contact with Leech.@

Id. at 543. Mayer therefore did not infringe upon the plaintiffs= rights to freedom of association,

and the district court did not err in granting Mayer summary judgment on this claim.


       2. Unreasonable ASeizure@ of Telephone Calls Between the Plaintiffs


       Relying upon the provisions of 42 U.S.C. ' 1983, the plaintiffs next assert that their

Fourth Amendment right to be free from unreasonable government searches and seizures was

infringed when Mayer jealously and illegally intercepted telephone calls between Leech and

male callers, including Griffeth. We have explained that A[t]o state a claim under 42 U.S.C.

' 1983, a plaintiff must set forth facts that, when construed favorably, establish (1) the

deprivation of a right secured by the Constitution or laws of the United States (2) caused by a

person acting under the color of state law.@ Sigley v. City of Parma Heights, 437 F.3d 527, 533

(6th Cir. 2006).


       However, our examination of those § 1983 components is tempered by the summary-

judgment standard of proof we are required to employ in this matter. As the United States

Supreme Court has noted, before a district court can deny a defendant=s motion for summary

judgment, Athere must be evidence on which the jury could reasonably find for the plaintiff. The

judge=s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a




                                                12
No. 12-4429         Leech v. Mayer


preponderance of the evidence that the plaintiff is entitled to a verdict . . . .@ Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986).


       Adhering to that standard, the district court properly concluded that Mayer was entitled to

summary judgment on the plaintiffs= claim of illegal interception of telephone conversations. In

their complaint, the plaintiffs alleged:


       During the period of May 1, 2008[,] through November 30, 2008[,] and through
       the present date, the Defendant John Mayer, while acting under color of law at all
       times relevant to this Complaint, individually and/or in concert/conspiracy with
       each other, violated the civil rights of Edwin Griffeth and/or Jennifer Leech by
       intercepting the private conversations of the Plaintiffs by means of the use of an
       electronic device. Defendant John Mayer never secured a search warrant and/or
       proceeded to intercept these private phone conversations without probable cause,
       and in violation of the laws of the State of Ohio and/or the United States of
       America.



Yet, the plaintiffs failed to offer any relevant evidence to buttress those assertions. In fact, the

strongest evidence proffered by the plaintiffs in support of this allegation is the following

statement contained in an affidavit by Jennifer Leech prepared during the litigation:


       I explained that Defendant John Mayer was intercepting my calls between me and
       any male person that called me, or I called, on my cell phone. I explained that
       Defendant John Mayer was a law enforcement officer and that Defendant John
       Mayer admitted to me that he had access to a Nextel device that would enable him
       to intercept my phone calls whenever he chose to. Defendant John Mayer
       admitted to me that he was intercepting my phone calls whenever he chose to.
       Defendant John Mayer admitted to me that he was intercepting my phone calls
       without permission from me or any other person, including those male persons
       that I spoke with over my phone. Exhibit A19-A@ through and including A19-J@
       fairly and accurately depict the type of devices that could be used for this purpose.
       Defendant John Mayer then proved to me that he had intercepted my phone calls
       by repeating, verbatim, the conversations that I had with the male persons I spoke
       to.




                                                 13
No. 12-4429         Leech v. Mayer


         That bald assertion of eavesdropping, however, is insufficient to support a verdict for the

plaintiffs on this claim. In fact, when testifying about the alleged interceptions in an

administrative hearing regarding Mayer=s removal from his OAPA position, Leech claimed only

that:


        In January of >08 [Mayer] stated to me after going to a birthday party that he knew
        where I went and he was proud of my behavior there, and he knew where I went,
        which I hadn=t told him B it was a birthday party B and that he could listen to my
        phone calls within five miles. And I was, of course, like what?


        And he said[, A]Yes, our Nextels are able to do this; we=re not supposed to use
        them like that, but we can.[”]


        Of course, this testimony by Leech in no way supports her claim that Mayer actually was

listening to her phone calls. The fact that Mayer was aware of Leech=s attendance at a birthday

party—and her demeanor at the gathering—is indicative of visual, not audio, surveillance of the

plaintiff.   Furthermore, Mayer=s supposed statement that he could listen in on phone

conversations and that his phone could access other individuals= calls does not constitute

admissible evidence that he actually did so. Damningly, when Leech later was asked whether

she actually believed that Mayer Acould listen to [her] telephone calls on his work phone,@ she

answered only, AI don=t know,@ and AI didn=t know whether to believe it or not, to be honest.@


        Nor do the exhibits referenced in Leech=s affidavit lend any credence to her claim. It is

true that Exhibits 19A-J depict devices that can be used to intercept telephone conversations.

The Acellular intercept@ systems pictured and described in the exhibits, however, are designed to

Abe custom built to fit inside of a surveillance van,@ not an individual cell phone. Those systems




                                                 14
No. 12-4429         Leech v. Mayer


thus have no relevance to Leech=s assertions that Mayer claimed to have used a department-

issued phone as an all-purpose interception device.


       It is true that two pages of the referenced exhibits describe how a cell phone may be

turned into Aa spy gadget.@       In order to utilize such Atechnology,@ however, the person

intercepting a phone call to another individual must clone the phone of the person whose calls

are to be intercepted. According to the article contained on pages I and J of Exhibit 19, A[t]o

clone a phone, you have to make a copy of its SIM card, which stores the phone=s identifying

information.@    Here, the plaintiffs adduced absolutely no evidence that would support a

conclusion that Mayer somehow stole the SIM [subscriber identity module] card from Leech=s

cell phone and transferred the information from it to his own phone.


       In short, the plaintiffs have failed to point to any evidence that would lead a reasonable

jury to find for Leech and Griffeth on their claim that Mayer illegally intercepted cell-phone

conversations between the two plaintiffs. Because Leech and Griffeth were unable to satisfy

their burden, the district court did not err in granting Mayer summary judgment on this claim as

well. The plaintiffs’ introduction of a “mere scintilla” of evidence in their favor is insufficient to

withstand Mayer’s summary-judgment motion.


       3. Restriction on Plaintiff Leech=s Right to Bear Arms


       In a truly bizarre argument, Leech next submits that her constitutional right to bear arms

was infringed when Mayer, Awithout a hearing and due process of law,@ enlisted the assistance of

the county prosecutor=s office to retrieve from Leech a service weapon that he allegedly gave her

for her protection. Not only does Leech have no legitimate claim to a state-issued firearm that

was improperly loaned to her, but the retrieval of that weapon by government authorities in no

                                                 15
No. 12-4429         Leech v. Mayer


way restricts the plaintiff=s own individual right to possess another firearm. This issue is patently

without merit, and the district judge properly granted Mayer summary judgment on this claim.


       4. Alleged Conspiracy to Accuse Plaintiff Griffeth Falsely


       In their next appellate issue, the plaintiffs contend that the district court erred in granting

summary judgment to Mayer on their claim that Mayer and other officials conspired to have

Griffeth taken into custody on November 20, 2008, based upon false accusations that Griffeth

had violated the conditions of his judicial release. This allegation of error must fail as a result of

two insurmountable failures of proof on the part of the plaintiffs.


       First, despite the fact that Mayer=s actions on November 20, 2008, were driven by a

combination of drunkenness, jealousy, and vindictiveness, the appellate record clearly

establishes that, at the time Mayer detained Griffeth, Mayer had observed Griffeth in violation of

at least two conditions of his release. The ASex Offender Special Conditions@ of release to which

Griffeth agreed on November 6, 2006, explicitly provided that Griffeth could not Aform a

relationship with a man or woman who has physical custody of children without the knowledge

and permission of [his] supervising officer,@ and could not Adrive or ride in a motor vehicle with

females without the knowledge and permission of [his] supervising officer.@ Because Mayer

personally observed Griffeth driving with Leech, a female who had physical custody of a minor

child, the defendant did not accuse Griffeth falsely of violating the conditions of release.


       Second, the plaintiffs= basis for this claim on appeal is that Mayer conspired with other

individuals to have Griffeth accused falsely of a release violation on November 20, 2008. In

their own complaint in this matter, however, the plaintiffs allege, ADuring any and all relevant

times, Defendant #1, John Mayer[,] never disclosed to the OAPA that he had a conflict of

                                                 16
No. 12-4429          Leech v. Mayer


interest in Plaintiff #2, Edwin Griffeth=s[,] case.@ If Mayer=s co-defendants were unaware on

November 20, 2008, that Mayer=s dogged pursuit of Griffeth was driven by unethical,

unprofessional motives, no conspiracy to mismanage Griffeth=s judicial release can be proven.

The district court thus also properly granted summary judgment to Mayer on this allegation.


        5. Allegedly Illegal Seizure of Griffeth=s Cell Phone


        In their final assignment of error regarding the district court=s grant of summary judgment

to defendant Mayer, the plaintiffs submit that Mayer unconstitutionally seized Griffeth=s cell

phone on the night of November 20, 2008, and then converted the phone to his own use in order

to call plaintiff Leech from that device. The seizure of the cell phone found in Griffeth=s

possession was not improper. One of the conditions of release to which Griffeth himself agreed

on November 6, 2006, was that he would not possess, own, use, or have under his control a

cellular phone. Nevertheless, Griffeth admitted that he was indeed in possession of a cell phone

in violation of that release condition. Moreover, the OAPA=s standard conditions of supervision,

to which Griffeth also agreed on November 6, 2006, provided that Aa supervising officer or other

authorized representative of the Department of Rehabilitation and Correction@ may Asearch,

without warrant, . . . [Griffeth=s] person, [his] motor vehicle, or [his[ place of residence . . . at any

time.@ See also Ohio Rev. Code Ann. ' 2967.131(C) (authorizing warrantless searches of a

supervised individual=s person, residence, motor vehicle, real property, or item of tangible or

intangible personal property if the field officer possesses reasonable ground to believe the person

is not complying with a term or condition of authorized release); United States v. Loney, 331

F.3d 516, 521 (6th Cir. 2003) (holding that Ohio Rev. Code Ann. ' 2967.131(C) Apasses

constitutional muster@). Mayer, as an employee of the OAPA, which was then charged with



                                                   17
No. 12-4429         Leech v. Mayer


supervising Griffeth=s release, thus was authorized to remove the prohibited item from Griffeth=s

possession.


       The plaintiffs also insist that Mayer=s use of the confiscated cell phone to call Leech

amounted to an improper, warrantless search. Mayer=s ruse to trick Leech into accepting his call

by making her think the call was from Griffeth was improper and unprofessional. However,

such limited use of the phone did not amount to an unreasonable, unconstitutional search because

the plaintiffs offered no indication that Mayer accessed any private information on the phone in

order to call his ex-wife.


Claims Against Defendant Officers of the OAPA


       Defendant OAPA officers Sampson, Nelson, Daubenspeck, Lomax, and Todd filed with

the district court a motion to dismiss the plaintiffs= claims against them both for lack of subject-

matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), and for failure to state a claim upon which relief

could be granted, see Fed. R. Civ. P. 12(b)(6). The district court granted the motion, holding that

the OAPA defendants were protected by Eleventh Amendment immunity to the extent that

Griffeth and Leech sued those defendants in their official capacities for money damages. See

U.S. Const. amend. XI. On appeal, the plaintiffs do not challenge that determination but instead

argue that the district court erred in dismissing all claims against those defendants in their

individual capacities.


       We review de novo a district court=s grant of a motion to dismiss. Sensations, Inc. v. City

of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). In doing so, we Aconstrue the complaint in

the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable

inferences in favor of the plaintiff.@ Bassett v. Nat=l Collegiate Athletic Ass=n, 528 F.3d 426, 430


                                                 18
No. 12-4429            Leech v. Mayer


(6th Cir. 2008) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, in

order to survive a motion to dismiss, the plaintiffs still must allege sufficient facts to Astate a

claim to relief that is plausible on its face,@ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007),

that is, Athat allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.@ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at

556).


        Griffeth and Leech allege that defendants Sampson, Nelson, Lomax, and Todd

negligently supervised Mayer and thus allowed him to continue his obsessive, jealously-driven

efforts to find Griffeth in violation of the terms and conditions of his judicial release. But, as the

United States Supreme Court has recognized, A[g]overnment officials may not be held liable for

the unconstitutional conduct of their subordinates under a theory of respondeat superior.@ Iqbal,

556 U.S. at 676. Rather, Aa ' 1983 plaintiff must show that a supervisory official at least

implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the

offending subordinate.@ Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (quoting Bellamy v.

Bradley, 729 F.2d 416, 421 (6th Cir. 1984)). This the plaintiffs cannot do.


        As discussed previously, the plaintiffs= own complaint concedes that Mayer never

disclosed to the OAPA that he had a conflict of interest in this matter because of his prior and

ongoing predatory relationship with Leech, an acquaintance of Griffeth. 1 Without knowledge

that Mayer had improper, ulterior motives in ensuring Griffeth=s compliance with the terms of his

release, defendants Sampson, Nelson, Lomax, and Todd cannot be held accountable for any

supervisory lapses. Moreover, the claims of constitutional violations against these defendants

        1
         Once that conflict of interest came to light after the events of November 20, 2008, disciplinary action was
taken against Mayer, ultimately resulting in defendant Mayer=s termination from his position with the OAPA.


                                                        19
No. 12-4429         Leech v. Mayer


are simply conclusory allegations without any factual support in the record. The district court

thus correctly dismissed all causes of action against these OAPA defendants.


       Dismissal of the claims brought against defendant Daubenspeck in his individual capacity

also was proper. The plaintiffs assert that Daubenspeck was responsible for the allegedly

unconstitutional special condition of probation that prohibited Griffeth=s association with Leech

or her daughter. The document containing that special condition, however, explicitly states that

the special conditions are imposed by the Richland County Court of Common Pleas or the

Richland County Adult Court Services, to whom Griffeth=s supervision had been transferred by

the OAPA. Consequently, Daubenspeck, an OAPA employee, cannot be held responsible for the

imposition of those court/county-ordered conditions of release.


                                        CONCLUSION


       John Mayer=s actions detailed in the course of this litigation were obviously

unprofessional, personally disgraceful, and wholly unethical. What is at issue in this appeal,

however, is whether Mayer’s harassing, stalking behavior, and the supervision provided him by

the OAPA defendants, were conspiratorial in nature and in violation of settled constitutional

principles.   For the reasons discussed, we conclude that the plaintiffs failed to meet their

evidentiary burden of demonstrating a genuine dispute of material fact regarding the claims

made against Mayer. The plaintiffs also failed to allege sufficient facts to make plausible claims

of constitutional violations against Mayer=s OAPA supervisors and cohorts. We thus AFFIRM

the judgments of the district court granting the OAPA defendants= motion to dismiss and Mayer=s

motion for summary judgment.




                                               20
No. 12-4429           Leech v. Mayer


       HELENE N. WHITE, Circuit Judge, concurring in part and dissenting in part. I

disagree with the majority’s conclusion that Leech presented insufficient evidence that Mayer

intercepted and seized her cell-phone calls to survive summary judgment.


       The majority regards Leech’s assertion that Mayer intercepted her phone calls as a “bald

assertion of eavesdropping” and dismisses Exhibits 19A-J on the bases that the systems have no

relevance to Leech’s assertions that Mayer claimed to have used a department-issued phone as an

all-purpose interception device, and that there is no evidence Mayer somehow stole the SIM card

from Leech’s phone and transferred the information from it to his own phone. But Leech is not

required to prove the exact mechanism by which Mayer intercepted her calls, only that he did.


       Leech presented more than bald assertions. First, according to Leech, Mayer himself told

Leech that he had intercepted her calls.1 I fail to see how an allegation supported by a party’s

admission constitutes a bald assertion. The majority inexplicably asserts that Leech’s accounts


       1
           For example, Leech’s affidavit, quoted by the majority states:

       I explained that . . . Defendant John Mayer admitted to me that he was
       intercepting my phone calls without permission from me or any other person,
       including those male persons that I spoke with over my phone. . . . Defendant
       John Mayer then proved to me that he had intercepted my phone calls by
       repeating, verbatim, the conversations that I had with the male persons I spoke to.

Leech also submitted a letter she had sent to her cell-phone service provider describing Mayer’s
activities and admissions:

       This person is a law enforcement officer, formerly being my husband. He has
       told me in the past that his state issued Nextel that works as a radio broadcasting
       each channel (sheriff, police, state highway patrol, etc.), cell phone, and as a two
       way radio, can be used to listen to other people’s conversations (which he has
       proved to me by repeating conversations.) . . . . When I am engaged in
       conversation with any males I usually get an incoming call from a “private”
       [phone] and the caller just disconnects.

                                                  21
No. 12-4429            Leech v. Mayer


of Mayer’s admissions do not support her claim that Mayer actually listened to her calls. If this

were a criminal case and the prosecution’s only evidence were Leech’s testimony that Mayer

knew facts that would have been gleaned from her conversations and in fact admitted to

intercepting her phone calls, there would be no question of the sufficiency of the prosecution’s

proofs. Why the testimony is insufficient in this civil case with a lesser standard of proof is a

mystery.


        Second, the photos in the exhibits are labelled as for illustrative purposes only; the actual

systems may vary. The exhibits include photos showing that this type of equipment fits in

briefcase-size carriers. These smaller systems, and systems with advances since the ads were

made around 2005, could very well have relevance to Leech’s assertions.


        Third, the allegation that Mayer used police equipment to intercept Leech’s calls is not

implausible. On cross-examination at Mayer’s hearing before the Ohio Personnel Board of

Review, Leech noted that there was a case involving use of police equipment to eavesdrop in

Mansfield,2 and testified that Mayer told her that he could listen to her telephone calls on his

work phone.


        In short, there was adequate evidence to withstand summary judgment on the claim of

unreasonable seizure of cell-phone calls, and I would reverse the grant of summary judgment and

remand that claim. In all other respects, I join in the majority’s affirmance.




        2
          McKinley v. City of Mansfield, 404 F.3d 418, 423 (6th Cir. 2005), provides stark indication of systematic
cell-phone spying in Mansfield, Ohio. The investigation there, known as “scannergate,” involved an officer’s
misuse of scanners to eavesdrop on citizens’ cell-phone conversations. Ultimately, the investigation involved
interviews of more than thirty police officers.

                                                        22
