Boggs v. City of Cleveland

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRCT OF OHIO

EASTERN DIVISION

SUSAN BOGGS, et al., ) CASE NO. 1:08-CV-02153-JDG

)

Plaintiffs/Relators, )

) MAGISTRATE JUDGE

vs. ) JONATHAN D. GREENBERG

)

CITY OF CLEVELAND, et al., )

)

Defendants/Respondents. ) MEMORANDUM OF OPINION &

) ORDER

)

This matter is before the Court on Defendant Traci Clark’s Motion for Judgment on the Pleadings.

(Doc. No. 60.) For the following reasons, the Court GRANTS the Motion for Judgment on the Pleadings

and DISMISSES the claims against Defendant Clark.

I. Factual and Procedural Background

In August 2008, Plaintiffs filed a “Complaint for Writ of Mandamus to Commence Appropriation

Proceedings” against the City of Cleveland (“City”) under the Fifth Amendment to the United States

Constitution, the Ohio Constitution, and other applicable laws, seeking compensation for the alleged taking

of their property as a result of operations at Cleveland Hopkins International Airport. (Doc. Nos. 26, 32.)

See also Boggs v. City of Cleveland, 655 F.3d 516, 519 (6th Cir. 2011). Because Plaintiffs asserted a federal

claim, the City removed this case to this Court on September 8, 2008. (Doc. No. 1).

On March 31, 2009, the City moved to dismiss the case. (Doc. No. 17.) On October 13, 2009, the

Court granted the motion on res judicata grounds based on an earlier class action complaint Plaintiffs filed

against the City. (Doc. No. 26.) Plaintiffs appealed the Court’s decision to the Sixth Circuit. (Doc. No.

1

29.) On appeal, the Sixth Circuit reversed, finding Plaintiffs’ claims based upon runway expansions in 2004

and 2007 “could not have been raised in the 2002 Action and are premised on a new transaction or

occurrence distinct from the subject matter of the 2002 Action”; therefore, res judicata did not apply. Boggs,

655 F.3d at 524. The Sixth Circuit then remanded the case back to this Court for further proceedings. Id.

After remand, Plaintiffs and the City stipulated to a dismissal without prejudice in October 2011 so

Plaintiffs could pursue administrative claims before the Federal Aviation Administration (“FAA”). (Doc.

No. 40.) The Stipulated Order of Dismissal Without Prejudice states, “The Relators and the City agreed to

toll the statute of limitations on the Fifth Amendment and Ohio Constitutional claims beginning October

25, 2011 until such time as the Relators have exhausted their administrative remedies.” (Id.)

On March 20, 2019, Plaintiffs filed a Notice of Exhaustion of Administrative Remedies. (Doc. No.

41.) On April 10, 2019, the Court held a telephonic conference with counsel, plaintiff Susan Boggs, and

City representative Traci Clark to determine how to proceed with the case given the lapse of seven years.

(Non-document entry dated April 10, 2019.) The Court ordered Plaintiffs to discuss the matter with the

City, and if the matter could not be resolved, Plaintiffs were to file a new case or an amended complaint

“based on 2019 conditions, as opposed [to] 2008 conditions.” (Id.)

On October 15, 2019, Plaintiffs filed their First Amended Complaint. (Doc. No. 46.) On November

1, 2019, the Court formally reopened the case. (Doc. No. 48.) On December 2, 2019, the parties filed their

Joint Consent to Exercise of Jurisdiction by a United States Magistrate Judge, and this case was then

transferred to the undersigned. (Doc. Nos. 49, 50.) See also non-document entry dated December 3, 2019.

II. Claims Alleged in First Amended Complaint

In Plaintiffs’ First Amended Complaint (“FAC”), they assert claims under the Fifth and Fourteenth

Amendments of the United States Constitution, Article I, Section 19 of the Ohio Constitution, and 42 U.S.C.

2

§ 1983. (Doc. No. 46.) Plaintiffs also assert violation of Ohio law with respect to easements offered by

Defendants, although the Complaint does not specify which laws Defendants violated.1 (See id. at 8-9.)

In a section titled “Facts in Support of All Claims,” Plaintiffs allege the following: Defendants

expanded runways 6L24R and 6R24L at the Airport pursuant to grants from the FAA. Expansion of 6L24R

began in January 2001 and was completed in August 2004. Expansion of 6R24L began in 2007 and was

completed in 2008. As a result of these expansions, 6L24R is 9000 feet long and 6R24L is 9956 feet long.

After the expansion of 6L24R, Plaintiffs’ home sits 3437 feet from the southwest edge of the runway.

Plaintiffs own and reside in the home and enjoy 500 feet of airspace above ground level under federal law.

Since at least 2018, the Airport has scheduled 156 daily flight departures and a similar number of arrivals

per day. Traffic at the Airport has increased by 4.5% in 2019 and is expected to increase further. The

expansions of the runways result in low flying flights over the Plaintiffs’ home. Dozens of times a day,

flights takeoff or land “well below 500 feet above ground level.” The reason for these low flying takeoffs

and landings “is that the landing system [D]efendants mandate on 6L24R and 6R24L is an Instrument

Landing System (ILS).” All aircraft landing at the Airport follow the same glidepath, which is set by

Defendants. “The ILS requires aircraft to descend or ascend into or from the runways at a 3.0 degree angle

(3-degree regulation) from the ground for landing or taking off on both runways.” These low flying flights

“amount to a continuous trespass of the property, and each trespass individually and negatively affects the

1 In their response in opposition to Defendant Clark’s Motion for Judgment on the Pleadings, Plaintiffs

maintain the Complaint “alleges [Clark’s] continuous failure to abide by Ohio law, [ORC 163.02-22 et

seq.]” (Doc. No. 61 at 6.)

3

Plaintiffs’ use and enjoyment of the Home,” “have continued unabated since the runways were completed,

and will continue for the indefinite future.” (Doc. No. 46 at ¶¶ 18-22, 26-34, 37-39.)

Plaintiffs further allege at all times material to the Complaint that the expansion of the runways and

execution of all flight operations at the Airport was under Defendants’ control. According to the FAC, all

Defendants exercised their control over the Airport, including expanding the runways and setting glide paths

for landings and takeoffs under the color of law. Specifically, “Defendants failed and/or refused to exercise

eminent domain over Plaintiffs’ property under color of law, thereby effecting the taking of the property

without due process in violation of the 5th and 14th Amendments of the United States Constitution, and

Article I, Sec. 19 of the Ohio Constitution.” (Id. at ¶¶ 23-25.)

With respect to Defendant Clark, the Complaint alleges that as Deputy Chief, Planning &

Engineering, at the Airport, Clark “oversaw Defendants’ sound insulation program, whereby defendants

would offer to install insulated doors and windows to homeowners, including Plaintiffs, who were affected

by [the Airport’s] operations.” (Doc. No. 46, ¶¶ 9-10.) Plaintiffs allege “[t]he offer was illegally contingent

on homeowners’ [sic] surrendering an avigation easement to the City, in perpetuity.” (Id. at ¶ 10.) Plaintiffs

maintain Clark “acted at all times under color of state law, custom or usage, and Plaintiffs bring this action

against her in her personal capacity.” (Id. at ¶ 11.) Further, Plaintiffs maintain “Clark’s and City

Defendants’ joint operation of [the Airport] are proprietary functions, such that all are liable for the wrongs

and omissions described herein.” (Id. at ¶ 14.) However, the Complaint then asserts that “City Defendants

4

have the power of eminent domain over the Home, and have refused to execute that power, prompting this

lawsuit.” (Id. at ¶ 15.)

III. Analysis

A. Standard of Review

Pursuant to Fed. R. Civ. P. 12(c), “[a]fter the pleadings are closed—but early enough not to delay

trial—a party may move for judgment on the pleadings.” “For purposes of a motion for judgment on the

pleadings, all well-pleaded material allegations of the pleadings of the opposing party must be taken as true,

and the motion may be granted only if the moving party is nevertheless clearly entitled to judgment.”

JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and quotation

marks omitted).

The same standard for deciding a Rule 12(b)(6) motion to dismiss for failure to state a claim applies

to a Rule 12(c) motion for judgment on the pleadings. See Roth v. Guzman, 650 F.3d 603, 605 (6th Cir.

2011). In order to survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain (1) ‘enough

facts to state a claim to relief that is plausible,’ (2) more than ‘formulaic recitation of a cause of action’s

elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’” Tackett v. M & G

Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting in part Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555–556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

The measure of a Rule 12(b)(6) challenge—whether the Complaint raises a right to relief above the

speculative level—“does not ‘require heightened fact pleading of specifics, but only enough facts to state a

claim to relief that is plausible on its face.’” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430

(6th Cir. 2008) (quoting in part Twombly, 550 U.S. at 555–556, 127 S.Ct. 1955). “A claim has facial

plausibility when the plaintiff pleads factual content that 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, 129 S.Ct.

5

1937, 173 L.Ed.2d 868 (2009). Deciding whether a complaint states a claim for relief that is plausible is a

“context-specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Id. at 679.

Consequently, examination of a complaint for a plausible claim for relief is undertaken in

conjunction with the “well-established principle that ‘Federal Rule of Civil Procedure 8(a)(2) requires only

a short and plain statement of the claim showing that the pleader is entitled to relief.’ Specific facts are not

necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.’” Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (quoting in part Erickson v.

Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007)) (quoting Twombly, 127 S.Ct. at

1964). Nonetheless, while “Rule 8 marks a notable and generous departure from the hyper-technical, code-

pleading regime of a prior era ... it does not unlock the doors of discovery for a plaintiff armed with nothing

more than conclusions.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

Generally, in ruling on a 12(c) or 12(b)(6) motion, “the court may only consider documents attached

to, incorporated by, or referred to in the pleadings,” because if they stray outside those parameters, the

motion must be treated as seeking summary judgment under Rule 56. Whittiker v. Deutsche Bank Nat. Tr.

Co., 605 F. Supp. 2d 914, 924 (N.D. Ohio 2009). Documents attached to a motion to dismiss are considered

part of the pleadings if they are referred to in plaintiff's complaint and are central to the claims. Weiner v.

Klais and Co., 108 F.3d 86, 89 (6th Cir. 1997). Therefore, they may be considered without converting a

Rule 12(b)(6) motion to dismiss to a motion for summary judgment. Id. The Sixth Circuit has applied the

same analysis to determine what information may be considered without converting a Rule 12(c) motion for

judgment on the pleadings to one for summary judgment. Savage v. Hatcher, 109 F. App’x 759, 760 (6th

Cir. 2004) (citing Weiner regarding limiting a federal court’s review to the “pleadings” when considering

motion for judgment on the pleadings); Lindsay v. Yates, 498 F.3d 434, 437 n.5 (6th Cir. 2007) (legal

6

standard for adjudicating a Rule 12(c) motion is the same as for a Rule 12(b)(6) motion). In adopting this

standard, the Sixth Circuit noted that “a plaintiff is under no obligation to attach to his complaint documents

upon which his action is based. However, a defendant may introduce certain pertinent documents if the

plaintiff fails to do so. Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss

simply by failing to attach a dispositive document upon which it relied.” Weiner, 108 F.3d at 89 (citations

omitted).

B. Application

1. Plaintiffs’ Claims Against Clark Under the Fifth and Fourteenth Amendments of

the United States Constitution and Article I, Sec. 19 of the Ohio Constitution

Defendant Clark argues Plaintiffs’ claims asserted against her under the Fifth and Fourteenth

Amendments of the United States Constitution and Article I, Sec. 19 of the Ohio Constitution are time-

barred. (Doc. No. 60 at 5-7.) In addition, Defendant Clark asserts Plaintiffs’ claims under the Fifth

Amendment cannot be asserted against her as an individual defendant. (Id. at 8-9.)

Plaintiffs respond that “the First Amended Complaint against Ms. Clark fully satisfies [Doner v.

Zody, 130 Ohio St.3d 446 (2011)], as it alleges her continuous failure to abide by Ohio law, [ORC 163.02-

22 et seq.].” (Doc. No. 61 at 2, 6.) Plaintiffs maintain that, “[t]o the extent that our First Amended

Complaint makes allegations that Clark violated state law and, with Defendants, effected a taking of this

property, the Boggs First Amended Complaint against Defendant Clark is timely.” (Id. at 6) (emphasis

added). Plaintiffs purport to “concede” Clark’s third argument but appear to misunderstand Clark’s

argument as they then state: “The First Amended Complaint makes no allegations that Ms. Clark

individually took the property.” (Id. at 8.)

The Court notes the only allegations asserted in the Complaint regarding the Fourteenth Amendment

are allegations involving the failure of the Defendants to exercise eminent domain and “effecting the

7

‘taking’” of Plaintiffs’ home, also in violation of the Fifth Amendment and Article I, Section 19 (Eminent

Domain) of the Ohio Constitution. (Doc. No. 1 at ¶¶ 25, 53, 63, 67.) But as this District has made clear,

“[a] takings claim cannot be asserted against an individual defendant.” Jamison v. Angelo, No.

4:10CV2843, 2012 WL 4434152, at *7 (N.D. Ohio Sept. 24, 2012) (citing Coles v. Bd. of Park Commis.,

No. 3:08CV2968, 2009 WL 2922036, at *1 (N.D. Ohio Sept. 8, 2009)). See also Vicory v. Walton, 730

F.2d 466, 467 (6th Cir. 1984) (“Plaintiff may not maintain a constitutional cause of action against these

defendants who neither have nor claim the eminent domain power, nor any power similar to it. The wrongful

‘taking,’ detention or theft by an individual of the property of another is not a constitutional ‘taking’ as that

term has been defined by the fifth amendment and commonly understood by the courts.”) (citation omitted).

In addition:

The Ohio Constitution does not create a private cause of action for monetary

damages. Davet v. City of Cleveland, No. 1:03CV1323, Doc. No. 43 at 17

(N.D. Ohio Mar. 4, 2004) (“Ohio law is devoid of a statute akin to 42 U.S.C.

§ 1983, which enables direct causes of action for monetary damages for

federal Constitutional violations. Furthermore, although some states imply a

cause of action against both individuals and governments, for monetary

damages for violations of state constitutions, Ohio is not among them.”)

(citing Provens v. Stark Cnty. Bd. of Mental Retardation & Developmental

Disabilities, 64 Ohio St.3d 252, 594 N.E.2d 959 (1992)); see also, Sanford v.

Cnty. of Lucas, Ohio, 3:07 CV 3588, 2009 WL 723227, at *7–8 (N.D. Ohio

Mar. 16, 2009) (citations omitted).

Jamison, 2012 WL 4434152, at *11 n.6.

Therefore, Plaintiffs’ claims against Defendant Clark under the Fifth and Fourteenth Amendments

and Article I, Section 19 (Eminent Domain) as they relate to the “taking” of Plaintiffs’ home are

DISMISSED.

8

2. Plaintiffs’ Claims Against Clark Under Ohio Law Regarding Avigation

Easements

In Section V of the FAC, titled “The Offer of Sound Insulation in Exchange for an Avigation

Easement,” Plaintiffs assert Clark, acting under color of law in her individual capacity, violated Ohio law.

(Doc. No. 46 at ¶¶ 54-63.) As noted supra, in their response in opposition to Clark’s Motion for Judgment

on the Pleadings, Plaintiffs stated the FAC alleged Clark violated O.R.C. § 163.02-22 et seq. (Doc. No. 61

at 6.)

In their briefing, the parties focus on the four-year statute of limitations set forth in O.R.C. §

2305.09(E). (Doc. Nos. 60, 61, 62.) Plaintiffs tie this statute of limitations to Clark’s conduct with respect

to the allegedly illegal easements. (Doc No. 61 at 3-6.) Clark does not dispute the application of O.R.C. §

2305.09(E) in this context or advance an alternate statute of limitations in her reply. (Doc. No. 62 at 4-7.)

For purposes of resolving Clark’s Motion for Judgment on the Pleadings, then, the Court accepts the parties’

argument that the four-year statute of limitations set forth in § 2305.09(E) applies to these claims.2

Plaintiffs assert in their opposition that the Court must accept all factual allegations as true, and

“[t]hus if the Compliant [sic] makes allegations that Ms. Clark continued to do (or failed to do) something

on the City’s ‘own land’ which caused continuing damages to Plaintiff’s property, and her conduct

continued unabated, the statute of limitations remains tolled . . . .” (Doc. No. 61 at 4.) Plaintiffs then point

2 The Ohio Supreme Court left open which statute of limitations applies in mandamus actions following the

enactment of § 2305.09(E). Painesville Mini Storage, Inc. v. Painesville, 124 Ohio St.3d 504, 2010-Ohio-

920, 924 N.E.2d 357, 358 (Ohio 2010) (“Regardless of whether the R.C. 2305.07 six-year statute of

limitations or the R.C. 2305.09(E) four-year statute of limitations applies to appellant’s takings claim, the

claim is barred. See State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449, 2010-Ohio-606, 923

N.E.2d 588, ¶ 30; see also State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d

998, ¶ 30–31 (a case decided prior to the enactment of R.C. 2305.09(E) in which the court held that the six-

year limitation period of R.C. 2305.07 was appropriate for mandamus actions brought to compel

appropriation proceedings).”) (mandamus action brought to compel city to commence appropriation

proceeding for alleged taking).

9

to a number of averments in the FAC in support, including their allegation that “Defendants collectively,

and Traci Clark individually, have repeatedly offered Plaintiffs sound insulated door and windows in

exchange for an air easement.” (Id.) Defendants respond: (1) Plaintiffs did not plead Clark violated ORC

163.02-22 et seq. with particularity; (2) Clark “did not, and does not, have the authority or ability to

commence appropriation proceedings of the Property;” and (3) “Plaintiffs have not averred in any colorable

fashion that Defendant Clark continually trespassed on or caused continual damage to the Property.” (Doc.

No. 62 at 5.)

While a complaint “need not contain ‘detailed’ factual allegations, its ‘[f]actual allegations must be

enough to raise a right to relief above the speculative level on the assumption that all the allegations in the

Complaint are true.’” Franklin v. FirstEnergy Corp., No. 5:11-CV-02444, 2012 WL 2130978, at *2 ((N.D.

Ohio June 12, 2012) (quoting Twombly, 550 U.S. at 555). Further, “A court is ‘not bound to accept as true

a legal conclusion couched as a factual allegation.’” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286

(1986)). Plaintiffs failed to plead any actions by Clark (or any other defendants, for that matter) relating to

the easements that fall within the statute of limitations.3 Plaintiffs allege, “Defendants collectively, and

Traci Clark individually, have repeatedly offered Plaintiffs sound insulated doors and windows in exchange

for an air easement. (Exhibit 5).” (Doc. No. 46 at ¶ 54.) But Exhibit 5 to the FAC is a letter dated August

7, 2002 – well outside the statute of limitations – and states, “Based on this information, I am reaffirming

the City’s willingness to mitigate the noise through Mrs. Boggs’s participation in the Residential Sound

Insulation Program.” (Doc. No. 46, Ex. 5) (emphasis added). The fact that Plaintiffs allege a “taking”

continues to the present does not change this analysis as, for the reasons discussed above, such claims cannot

be asserted against Clark as an individual defendant.

3 This is so whether the applicable statute of limitations is four or six years. See n.2, supra.

10

Therefore, even construing the FAC in a light most favorable to the Plaintiffs, any right to relief

against Defendant Clark within the statute of limitations on these grounds is pure speculation at best. As a

result, these claims against Clark are DISMISSED.

3. Plaintiffs’ Claims Against Clark Under § 1983

Clark also argues Plaintiffs’ claims against her under § 1983 are time-barred. (Doc. No. 60 at 7-8.)

Although Clark states the FAC “is overall deficient in pleading claims asserting violations under 42 U.S.C.

§ 1983 as against all Defendants to the point that said claims may also be facially deficient,” (id. at 7)

(footnote omitted), she does not develop this argument further and therefore such argument is waived.

McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“‘[I]ssues adverted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a

party to mention a possible argument in the most skeletal way, leaving the court to … put flesh on its

bones.’”) (citations omitted). Plaintiffs respond that the applicable statute of limitations under § 1983 is

four years, and as they alleged a “continuing trespass,” “the statute does not begin to run until the

Defendant’s [sic] control over the situation ceases.” (Doc. No. 61 at 7.)

“Section 1983 does not create rights itself; it authorizes a person to bring a claim against a person

who, acting under color of law, violates one’s rights established elsewhere, that is “by the Constitution and

laws” of the United States.” Estate of Fluegge v. City of Wayne, No. 19-10175, 2020 WL 999009, at *6

(E.D. Mich. Mar. 2, 2020) (citing Cavin v. Michigan Dep’t of Corr., 927 F.3d 455, 460 (6th Cir. 2019)). To

assert a claim under § 1983, Plaintiffs “must establish that: (1) a person acting under color of state law (2)

deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United

States.” Dunikowski v. Ohio Dept. of Rehab. & Correction, No. 1:18 CV 2576, 2019 WL 2717954, at *2

(N.D. Ohio Jun. 28, 2019) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)).

11

The FAC, in pleading jurisdiction and venue, states, “This action arises under the 5th and 14th

Amendments of the Constitution and laws of the United States, including Article III, Section I of the United

States Constitution and is brought pursuant to 42 U.S.C. §§ 1983 and 42 U.S.C. § 1988.” (Doc No. 46 at ¶

16.) Section 1983 appears only two other places in the FAC: in an allegation that all defendants are

“persons” under the statute and in an allegation of damages. (Id. at ¶¶ 12, 75.) The only constitutional

violations asserted in the Complaint consist of allegations involving the Defendants “effecting the ‘taking’”

of Plaintiffs’ home, in violation of the Fifth and Fourteenth Amendments of the United States Constitution.

(Doc. No. 46 at ¶¶ 25, 53, 63, 67.) For the reasons discussed above, “takings” claims cannot be asserted

against Clark as an individual defendant. Therefore, the § 1983 claims in the FAC asserted against Clark

are DISMISSED.

IV. Conclusion

For all the reasons set forth above, the Court GRANTS the Motion for Judgment on the Pleadings

and DISMISSES the claims against Defendant Clark.

Date: April 2, 2020 s/ Jonathan Greenberg

Jonathan D. Greenberg

United States Magistrate Judge

12