The opinion
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTONIO BAEZ, ) Case No. 1:19 cv 623
)
Plaintiff, )
) MAGISTRATE JUDGE
v. ) THOMAS M. PARKER
)
CITY OF CLEVELAND, et al., )
) MEMORANDUM OF OPINION
Defendants. ) AND ORDER
)
I. Introduction
Defendant City of Cleveland (“Cleveland”) moves for judgment on the pleadings on the
claims asserted in Plaintiff Antonio Baez’s (“Baez”) first amended complaint. ECF Doc. 27.
The parties consented to my jurisdiction. ECF Doc. 16. After construing the allegations in the
complaint in a light most favorable to Baez, the court must GRANT Cleveland’s motion for
judgment on the pleadings as further explained below. The court will DENY Baez’s alternative
motion for leave to file second amended complaint.
II. Statement of Facts
The following facts, taken from the pleadings, must be assumed to be true for purposes of
this motion. On January 9, 2017, Richard Jackson, an employee of the Cleveland Police
Department began investigating a sex crime involving a minor who was “touched” by a family
friend named Antonio Baez. ECF Doc. 24 at 3-4. The case was referred to a grand jury on
September 13, 2017; and, unfortunately, an indictment was returned on January 18, 2018, which
charged the wrong Antonio Baez with rape, gross sexual imposition and kidnapping. ECF Doc.
24 at 5 and ECF Doc. 24-2 at 3.
Plaintiff, who is the “wrong” Antonio Baez (“Baez”), works as a deputy sheriff with the
Cuyahoga County Sheriff’s Office providing security in the Parma City School District. He is
also an active member of the United States Army Reserve. He was deployed on active duty from
approximately June 2018 to May 2019. ECF Doc. 24 at 6.
In February 2018, Baez was informed by law enforcement that there was an active arrest
warrant against him. His school employer was also informed and received a copy of the
indictment charging Baez with crimes against a minor. When Baez’s mistaken identity was
realized, the case against him was dismissed and expunged on February 27, 2018. ECF Doc. 24
at 6-7.
On November 19, 2018, Baez filed a complaint against the City of Cleveland and
(ironically) the wrong detective, Quentin Johnson. His complaint was filed in the Cuyahoga
County Court of Common Pleas and removed to this court on March 21, 2019. On September 4,
2019, Baez sought leave to name Defendant Richard Jackson as the detective who investigated
and incorrectly charged Baez. ECF Doc. 19. The City of Cleveland opposed Baez’s motion.
ECF Doc. 22. However, on October 7, 2019, the court granted Baez’s motion to amend (ECF
Doc. 23); and he filed an amended complaint on October 15, 2019. ECF Doc. 24.
Baez’s amended complaint asserts the following claims: 1) a § 1983 action against
Jackson for unlawful search and seizure; 2) a § 1983 action against Jackson for malicious
prosecution; 3) a § 1983 action against Cleveland for customs and policies causing constitutional
violations (a Monell claim); 4) defamation claims against both defendants; and 5) a malicious
prosecution claim against both defendants. ECF Doc. 24.
On November 4, 2019, Cleveland filed a motion for judgment on the pleadings. ECF
Doc. 27. Cleveland argues that Baez’s Monell claim should be dismissed because he has failed
to state, with any clarity, what constitutional rights were violated and has failed to articulate any
factual allegations regarding a policy or custom that violated his constitutional rights. Cleveland
also asserts that it is immune from Baez’s state law tort claims pursuant to Ohio Rev. Code §
2744 et seq. ECF Doc. 27. Baez filed an opposition to Cleveland’s motion on December 4,
2019. ECF Doc. 28. Cleveland filed a reply in support of its motion for judgment on the
pleadings on December 17, 2019. ECF Doc. 30.
III. Standard of Review
A “motion for judgment on the pleadings under Rule 12(c) is generally reviewed under
the same standard as a Rule 12(b)(6) motion.” Mellentine v. Ameriquest Mortg. Co., 515 F.
App’x 419, 423, 2013 U.S. App. LEXIS 3353 (6th Cir. 2013) (citing EEOC v. J.H. Routh
Packing Co., 246 F.3d 850, 851 (6th Cir. 2001)). The court must construe the complaint in a
light most favorable to the plaintiff and accept all factual allegations as true. Kottmyer v. Maas,
436 F.3d 684, 688 (6th Cir. 2006). The factual allegations must raise a right to relief above the
speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d
929 (2007). In other words, the Rule 12(b)(6) standard requires that a plaintiff provide enough
facts to state a claim to relief that is plausible on its face. Id. at 569.
While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L.
Ed. 2d 868 (2009). Bare allegations without a factual context do not create a plausible claim.
Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 374 (6th Cir. 2011). A complaint
must contain direct or inferential factual allegations respecting all the material elements under
some viable legal theory. Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). The bare
assertion of legal conclusions is not enough to constitute a claim for relief. Id. at 716.
IV. Law &Analysis
A. Baez’s Third Cause of Action - § 1983 Monell Claim
Cleveland argues that it is entitled to judgment on the pleadings on Baez’s Monell claim
because Baez has failed to state any constitutional violation in his amended complaint. A city or
municipality may only be held liable for the constitutional violations predicated on the conduct
of its own employees under 42 U.S.C. § 1983 if those actions are the result of a practice, policy,
or custom of the municipality itself. Monell v. Department of Social Services, 436 U.S. 658, 98
S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Such a claim is commonly called a Monell claim.
Obviously, in order to bring a Monell claim, there must be an underlying constitutional violation
by one of the municipality’s employees. Watkins v. City of Battle Creek, 273 F.3d 682 (6th Cir.
2001). To succeed on a municipal liability claim, a plaintiff must establish that his constitutional
rights were violated and that a policy or custom of the municipality was the ‘moving force’
behind the deprivation of the plaintiff’s rights. Miller v. Sanilac Cnty., 606 F.3d 240, 254-255
(6th Cir. 2010).
There are four types of municipal action that, if they cause the underlying constitutional
violation, can establish liability under a Monell claim: 1) legislative enactments or official
policy; 2) actions by officials with final decision-making authority; 3) a policy of inadequate
training or supervision; or 4) a custom of tolerance of rights violations. France v. Lucas, No.
1:07CV3519, 2012 U.S. Dist. LEXIS 151344, 2012 WL 5207555, at *12 (N.D. Ohio Oct. 22,
2012), aff'd, 836 F.3d 612 (6th Cir. 2016).
Here, Baez asserts a claim that Cleveland inadequately trained or supervised its
employees. To state a claim for failure to adequately train or supervise, a plaintiff must
sufficiently plead that “(1) the training or supervision was inadequate for the tasks performed; (2)
the inadequacy was the result of the municipality’s deliberate indifference; and (3) the
inadequacy was closely related to or actually caused the injury.” Regets v. City of Plymouth, 568
F. App'x 380, 394 (6th Cir. 2014). To establish deliberate indifference, the plaintiff ordinarily
“‘must show prior instances of unconstitutional conduct demonstrating that the [municipality]
has ignored a history of abuse and was clearly on notice that the training in this particular area
was deficient and likely to cause injury.’” Miller v. Sanilac Cnty., 606 F.3d 240, 255 (6th Cir.
2010)) (quoting Fisher v. Harden, 398 F.3d 837, 849 (6th Cir. 2005)).
Baez argues that, because he was mistakenly charged for a crime he didn’t commit, the
court should assume that Cleveland poorly trained its officers. But poor training is not the only
plausible explanation for Baez’s problems. Baez had the same last name as the suspected
perpetrator. It is possible that, despite proper training, Cleveland’s employee(s) made an error
resulting in the wrong Antonio Baez being indicted.
Baez does not cite any Cleveland policy leading to this mistake. For example, he doesn’t
allege that Cleveland pressured its employees to file more indictments or recklessly prosecute
child sex crimes. He doesn’t allege that Cleveland had a history of looking the other way when
the wrong individuals were prosecuted for crimes. He also has not alleged that there are other
examples of Cleveland charging and/or prosecuting the wrong individual for crimes. “A single
incident alleging illegal activity is insufficient to withstand a 12(b)(6) motion to dismiss.” Houpt
v. City of Cleveland, Case No. 1:13 CV 1836, 2013 U.S. Dist. LEXIS 171615 (N. D. Ohio, Dec.
5, 2013). The fact that the charges against Baez were quickly dropped when the mistake was
realized suggests that Cleveland was not promoting a policy resulting in the wrong individuals
being charged with crimes. Such a policy would only create more work and unnecessarily waste
Cleveland’s resources.
The court also agrees with Cleveland that Baez has not alleged any underlying
constitutional claim. Baez alleges that “Cleveland implements customs and policies for training
and supervision of police officers on searches, seizures, lawful arrests, and pursuing criminal
charges supported by probable cause that violate the Fourth Amendment and Fourteenth
Amendment[] [to] the United States Constitution.” ECF Doc. 24 at 11. However, the factual
allegations of his complaint suggest no such policies or customs. It was not improper for
Cleveland to investigate and prosecute an individual named Antonio Baez for the crimes alleged
by his victims. Baez has not alleged any Cleveland a policy that encourages its employees to
charge the wrong individual (who has the same name) with crimes.
Baez’s complaint does not allege that he was searched, seized or unlawfully arrested. It
suggests that Baez’s character may have been cast in a bad light and/or that he lost wages and
earning capacity, but these are hardly deprivations of life, liberty or the pursuit of happiness.
And Baez has not alleged any permanent or long-lasting consequences. Baez was not arrested,
and the charges were quickly expunged. He didn’t lose his job. He does not allege he was
treated differently than other similarly situated individuals on an unconstitutional basis. In short,
Baez has not alleged any underlying constitutional violation by Cleveland’s employees that
would serve as the basis for his Monell claim.
Baez argues that his Fourth Amendment right against search and seizure was violated due
to the unjust prosecution stemming from Cleveland’s mistake. Interestingly, he cites caselaw
holding that the tort of malicious prosecution can cause unjustified torment and anguish, but it is
not a constitutional violation. See Albright v. Oliver, 510 U.S. 266, 283, 114 S. Ct. 807 (1994).
The case Baez cites actually supports Cleveland’s argument that no constitutional violation
occurred. Id., at 286.
Baez argues that his case should be distinguished from a case cited by Cleveland,
Howard v. City of Girard, 346 F. App’x 49 (6th Cir. 2009). Howard sued the City of Girard
when an emergency crew failed to prevent him from entering an apartment and observing his
father who had committed suicide. He argued that the emergency crew’s lack of training led to
his severe psychic injury. The court agrees with Baez that the facts of Howard are very different
from the facts he alleges. However, they have this in common, both he and Howard failed to
allege a violation of a recognized constitutional right. As in Howard, Baez does not identify any
particular constitutional right that Cleveland violated (Id. at 51) and without an underlying
constitutional violation, Baez has not properly alleged a Monell claim against the City of
Cleveland.
In Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979), McCollan
filed a §1983 action against a sheriff who arrested him because he had the same name as an
individual named in an arrest warrant. McCollan spent the weekend in jail before his claims of
innocence were verified and he was released. The Supreme Court held that McCollan had not
identified any constitutional violation. The warrant by which he was arrested had been issued
with probable cause and his detention of three days over a New Year’s weekend did not amount
to a deprivation of his constitutional rights. The Court recognized that McCollan could pursue a
tort claim of false imprisonment, but he had failed to state the constitutional violation required in
a § 1983 action. McCollan did not state a constitutional violation even though he spent the
weekend in jail. Baez was not even arrested; his claim of a constitutional violation is weaker
than McCollan’s.
Because Baez has neither identified no alleged any underlying violation of a
constitutional right supporting his §1983 claim against the City of Cleveland or that a policy or
custom of the Cleveland was the ‘moving force’ behind the deprivation of his rights, he has
failed to state a §1983 action against Cleveland. Because Baez has not alleged enough facts to
state a plausible §1983 action against Cleveland, his Third Cause of Action must be dismissed.
The court GRANTS Cleveland’s motion for judgment on the pleadings on Baez’s Third Cause of
Action.
B. Immunity
Cleveland argues that Baez’s state law tort claims must be dismissed because Cleveland
is entitled to statutory immunity under Ohio Rev. Code § 2744.02. The Ohio Revised Code
establishes a three-tier analysis for determining whether a political subdivision is immune from
liability:
First, R.C. 2744.02(A)(1) sets forth the general rule that a political subdivision is
immune from liability for acts or omissions connected with governmental or
proprietary functions. Second, R.C. 2744.02(B) lists five exceptions to the
general immunity granted to political subdivisions under R.C. 2744.02(A)(1).
Finally, R.C. 2744.03(A) makes available further defenses and immunities that a
political subdivision may assert if it is subject to liability under R.C. 2744.02(B).
Frazier v. Clinton Cnty. Sheriff’s Office, 12th Dist. Clinton No. CA2008-04-015, 2008-Ohio-
6064, ¶ 28 (citations omitted); see also Colbert v. Cleveland, 99 Ohio St. 3d 215, 2003-Ohio-
3319, 790 N.E.2d 781, 7-9. “[R]elying on the statutory language of R.C. 2744.02(B), Ohio
courts consistently have held that political subdivisions are immune from intentional tort
claims.” Harris v. Sutton, 183 Ohio App. 3d 616, 2009-Ohio-4033, 918 N.E.2d 181, ¶ 15 (8th
Dist.) (citing Wilson v. Stark Cnty. Dep't of Human Servs., 70 Ohio St. 3d 450, 1994 Ohio 394,
639 N.E.2d 105, 107 (Ohio 1994)); see also Zieber v. Heffelfinger, 5th Dist. Richland No.
08CA0042, 2009-Ohio-1227, ¶ 27. And, specifically, Ohio courts have held that political
subdivisions are immune from intentional torts such as malicious prosecution1, civil conspiracy,
spoliation of evidence and defamation. R.K. v. Little Miami Golf Ctr., 2013-Ohio-4939, 1
N.E.3d 833, ¶ 49 (1st Dist.); Walsh v. Village of Mayfield, 8th Dist. Cuyahoga No. 92309, 2009-
Ohio-2377, ¶ 11; Zieber, 2009-Ohio-1227, ¶ 27; Vaughn v. Lake Metro Hous. Auth., 11th Dist.
Lake No. 2009-L-153, 2010-Ohio-3686, ¶ 46.
A municipal corporation such as the City of Cleveland is a political subdivision for
immunity purposes. See Ohio Rev. Code § 2744.01(F). Further, “the operation of a police
department and the enforcement of the law are governmental functions.” Harris, 183 Ohio App.
3d 616, 2009-Ohio-4033, ¶ 13, 918 N.E.2d 181.
The second tier of the analysis involves determining whether any exceptions to immunity
apply. The statutory exceptions are:
1) Negligent operation of a motor vehicle;
2) Negligent conduct of employees while carrying out a proprietary function;
3) Failure to keep roads free from nuisance;
4) Negligently causing injury or loss that occurs on the grounds of certain
governmental properties; and
5) Any other situation in which liability is expressly imposed by the Revised
Code.
Ohio Rev. Code 2744.02(B). It does not appear that any of the exceptions applies in this case.
Baez has not argued that any of the exceptions apply. He argues only that Ohio Rev. Code
Chapter 2744 does not apply because his civil claims are based on a constitutional violation.
1 Moreover, as argued in Cleveland’s reply, the Sixth Circuit has held that a plaintiff cannot pursue a
constitutional claim for malicious prosecution unless he was arrested, incarcerated, required to post bond,
stood trial before his charges were dismissed, or was subject to travel restrictions. Noonan v. Cty. Of
Oakland, 683 F. App’x 455, 463 (6th Cir. 2017).
However, as explained above, Baez has not identified any constitutional violation that occurred
here. Baez may be able to assert tort claims related to the mishap that occurred, but he cannot
assert them against Cleveland because it is immune.
V. Leave to Amend
Fed. R. Civ. P. 15 provides that leave to amend should be freely given. But, if a proposed
amendment would not survive a motion to dismiss, it is futile. Riverview Health Inst., LLC v.
Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010). Baez has failed to identify any underlying
violation of his constitutional rights in his § 1983 claim against Cleveland and, as explained
above, further development of the facts through discovery would not change that. Cleveland also
enjoys statutory immunity against his tort claims. Because another amendment of his claims
against Cleveland would be futile, his alternative motion to file a second amended complaint
must be DENIED.
VI. Conclusion
Because Baez has not identified any underlying constitutional violation or a Cleveland
policy which caused the incorrect “Antonio Baez” to be charged in a grand jury indictment,
Cleveland is entitled to a dismissal of his Third Cause of Action. Because Cleveland is
statutorily immune from liability on state law tort claims such as malicious prosecution and
defamation and because no exceptions to that immunity apply, Cleveland is also entitled to a
dismissal of Baez’s Fourth and Fifth Causes of Action. The court, therefore, GRANTS
Cleveland’s motion for judgment on the pleadings. ECF Doc. 27. Because another amendment
of Baez’s claims against Cleveland would be futile, his alternative motion to file a second
amended complaint is DENIED.
The only claims remaining in this case are those that Baez has asserted against Defendant
Richard Jackson. However, it does not appear that Richard Jackson has been served. The court
will permit Baez to serve Jackson within 60 days of this order. The status conference scheduled
for January 21, 2020 is hereby CANCELLED. The court will consider rescheduling the status
conference if plaintiff obtains service on Defendant Jackson and he files an answer.
IT IS SO ORDERED.
—
Dated: December 27, 2019 —éxe i
United States Magis J udge
11