Laborers' International Union of North America v. Neff

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

LOCAL 860 LABORERS’ CASE NO. 1:20-CV-02714

INTERNATIONAL UNION OF NORTH

AMERICA,

On Behalf of Itself and Its Members, JUDGE PAMELA A. BARKER

Plaintiff,

-vs-

MEMORANDUM OF OPINION AND

ORDER

TEREASE Z. NEFF, et al.,

Defendants.

This matter comes before the Court upon the Motion to Dismiss of Defendants Terease Z.

Neff (“Ms. Neff”), the Honorable Thomas F. O’Malley (“Judge O’Malley”), and the Cuyahoga

County Common Pleas Court, Juvenile Division (the “Juvenile Court”) (collectively, “Defendants”).

(Doc. No. 4.) Plaintiff Laborers’ International Union of North America, Local 860 (“Local 860”)

filed a brief in opposition to Defendants’ Motion to Dismiss on February 18, 2021, to which

Defendants replied on March 11, 2021. (Doc. Nos. 6, 9.) For the following reasons, Defendants’

Motion to Dismiss (Doc. No. 4) is GRANTED.

I. Background

a. Factual Allegations

Ms. Neff is the Court Administrator of the Juvenile Court, and, in this role, she is responsible

for all Juvenile Court operations, including the operations of the detention center, management, and

staff. (Doc. No. 1 at ¶ 8.) Judge O’Malley is the Juvenile Court’s Administrative Judge and acts as

the administrator of the Juvenile Court’s subdivisions and departments. (Id. at ¶ 9.)

In 2012, Local 860 became the exclusive bargaining representative for two bargaining units

of Juvenile Court employees. (Id. at ¶¶ 11-14.) Subsequently, Local 860 and the Juvenile Court

agreed to two collective bargaining agreements—the Courtside CBA and the Detention CBA

(collectively, the “CBAs”)—for the period of 2013 to 2015. (Id. at ¶¶ 10-13, 19-20.) The relationship

between Local 860 and the Juvenile Court remained strictly contractual, however, as the employees

working under both CBAs are not covered by either the National Labor Relations Act or the Ohio

Collective Bargaining Act. (Id. at ¶ 18.)

Local 860 and the Juvenile Court also later successfully negotiated new CBAs for the period

of 2016 to 2019. (Id. at ¶ 20.) Specifically, the CBAs provided that they would remain in effect until

December 31, 2019. (Id. at ¶ 21.) The CBAs also contained the following language:

[T]he Court agrees to recognize the Union and abide by the terms of this Agreement

until such time as a successor agreement is negotiated between the parties, the Union

disclaims interest, or the employees elect to decertify the Union as their exclusive

bargaining representative upon the expiration of this Agreement.

(Doc. No. 1-1 at 5; Doc. No. 1-2 at 5.)

In 2019, Local 860 and the Juvenile Court began negotiations over successor contracts to the

CBAs. (Doc. No. 1 at ¶ 22.) The parties continued to negotiate through late 2020, but they were

unable to reach an agreement. (Id. at ¶¶ 22-40.) During this time, the Juvenile Court generally abided

by the terms of the old CBAs, although there were several breaches that were remedied through the

grievance process or otherwise resolved. (Id. at ¶ 41.)

However, on December 1, 2020, the Juvenile Court, at the direction of Ms. Neff and Judge

O’Malley, informed its employees that there was no longer an agreement between the Juvenile Court

and Local 860 and that the CBAs were no longer in effect. (Id. at ¶ 42.) As a result, Local 860’s

members lost the contractual rights and protections relative to their employment that were contained

2

in the CBAs. For example, the Juvenile Court would no longer abide by the CBAs’ terms regarding

discipline, safety and health responsibilities, seniority rights, job bidding and transfer rights, increases

for promotions, and time-off. (Id. at ¶ 44.) Instead, the Juvenile Court indicated it would treat Local

860’s members as non-union employees. (Id. at ¶ 45.) The Juvenile Court also declared that it would

no longer be deducting and remitting voluntary union dues, removed Local 860’s bulletin boards, and

informed Local 860 that it would no longer be processing grievances. (Id. at ¶¶ 43-50.)

On the same day as its announcement that the CBAs were no longer operative, the Juvenile

Court, through Judge O’Malley in his official capacity as Administrative Judge, filed two complaints

against Local 860 in the Common Pleas Court of Cuyahoga County, Ohio, seeking declaratory

judgments that both CBAs were void and/or expired. (Doc. Nos. 4-1, 4-2.)1 In support, the Juvenile

Court argued that the CBAs had expired according to their unambiguous terms, that the CBAs were

illusory and void due to a lack of consideration, and that the perpetual nature of the CBAs violated

Ohio public policy. (Doc. No. 4-1 at 9-11; Doc. No. 4-2 at 9-11.) In response, Local 860 filed

counterclaims based on the Juvenile Court’s alleged breach of the CBAs, moved to compel the

arbitration of its grievances, and requested its own declaratory judgments regarding the CBAs. (Doc.

Nos. 4-3, 4-4.) The state court actions, which have been consolidated, are still pending as of the date

of this opinion.

1 On a motion to dismiss, courts “may consider the Complaint and any exhibits attached thereto, public records, items

appearing in the record of the case and exhibits attached to defendant’s motion to dismiss so long as they are referred to

in the Complaint and are central to the claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d

426, 430 (6th Cir. 2008). Thus, the Court may consider court filings from the state court action between the parties.

3

b. Procedural History

On December 4, 2020, Local 860 filed a Complaint in this Court against Defendants,

including Ms. Neff and Judge O’Malley in both their personal and official capacities,2 seeking

damages and injunctive relief pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Local 860 contends that

Defendants’ unilateral termination of the CBAs violated the Contracts Clause, constituted an

unconstitutional taking without just compensation, deprived it of its property without due process,

and violated its rights under the First Amendment. (Id. at ¶¶ 53-76.) In response, on January 19,

2021, Defendants filed a Motion to Dismiss, requesting that all of the counts in Local 860’s Complaint

be dismissed for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. No. 4.) Local

860 filed a brief in opposition to Defendants’ Motion to Dismiss on February 18, 2021, to which

Defendants replied on March 11, 2021. (Doc. Nos. 6, 9.)

II. Standard of Review

Under Rule 12(b)(6), the Court accepts the plaintiff’s factual allegations as true and construes

the complaint in the light most favorable to the plaintiff. See Gunasekara v. Irwin, 551 F.3d 461, 466

(6th Cir. 2009). In order to survive a motion to dismiss under this Rule, “a complaint must contain

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

cause of action’s elements,’ and (3) allegations that suggest a ‘right to relief above a speculative

2 The Complaint is not clear as to whether the counts set forth are brought against Ms. Neff and Judge O’Malley in both

their personal and official capacities. Counts I and III allege Ms. Neff and Judge O’Malley were acting under color of

state law, while Count II alleges that they were acting under color of state law, as well as outside the scope of their official

capacities. (Doc. No. 1 at ¶¶ 57, 65, 67, 75.) However, the prayer for relief seeks damages against all Defendants with

respect to each count and against Ms. Neff and Judge O’Malley in their individual capacities. (Id. at Pg. 13.) In addition,

in their briefing on Defendants’ Motion to Dismiss, the parties address the claims against Ms. Neff and Judge O’Malley

in both their personal and official capacities. (Doc. No. 6 at 27-29; Doc. No. 9 at 18-20.) Thus, the Court will treat the

Complaint as setting forth all counts against Ms. Neff and Judge O’Malley in both their personal and official capacities.

4

level.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (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 Twombly, 550 U.S. at 570). “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 (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, 551 F.3d at 466 (quoting Erickson v. Pardus,

551 U.S. 89, 93 (2007)). 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 678-79.

5

III. Analysis

a. Sovereign Immunity and the Eleventh Amendment

Before reaching the merits of Local 860’s claims, the Court will first address Defendants’

argument that they are entitled to immunity under the Eleventh Amendment. Specifically,

Defendants assert that sovereign immunity precludes Local 860’s claims against the Juvenile Court,

as well as Ms. Neff and Judge O’Malley in their official capacities, because the Juvenile Court is an

arm of the state of Ohio. (Doc. No. 4 at 11-14; Doc. No. 9 at 15-18.) In opposition, Local 860 asserts

that the Juvenile Court is not an arm of the state because any money judgment against it would be

paid by Cuyahoga County, not the state treasury. (Doc. No. 6 at 25-28.) Additionally, Local 860

argues that Eleventh Amendment immunity does not bar its requests for injunctive relief against Ms.

Neff and Judge O’Malley in their official capacities. (Id. at 28.) The Court finds that the Juvenile

Court is an arm of the state, and, therefore, Local 860’s claims against the Juvenile Court are barred

in their entirety, and its claims against Ms. Neff and Judge O’Malley in their official capacities are

barred to the extent that they seek monetary relief.

Eleventh Amendment immunity “bars all suits, whether for injunctive, declaratory or

monetary relief, against the state and its departments by citizens of another state, foreigners or its

own citizens.” Thiokol Corp. v. Dep’t of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381

(6th Cir. 1993) (internal citation omitted). “The amendment also bars suits for monetary relief against

state officials sued in their official capacity.” Id. However, it “does not preclude actions against state

officials sued in their official capacity for prospective injunctive or declaratory relief.” Id.; accord

Diaz v. Mich. Dep’t of Corr., 703 F.3d 956, 964 (6th Cir. 2013) (“[T]he Supreme Court announced

an exception to Eleventh Amendment sovereign immunity in Ex parte Young for claims for injunctive

6

relief against individual state officials in their official capacities.”). Nor does Eleventh Amendment

immunity extend to counties and similar municipal corporations. Mt. Healthy City Sch. Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 280 (1977).

Thus, a threshold question in this case is whether the Juvenile Court should be considered part

of the state—in which case it and Ms. Neff and Judge O’Malley in their official capacities are entitled

to immunity—or part the county in which it sits—in which case they are not entitled to immunity.

The Sixth Circuit addressed the question of whether an Ohio common pleas court is an arm of the

state in Mumford v. Basinski, which involved the Lorain County Common Pleas Court Domestic

Relations Division. 105 F.3d 264, 266, 269-70 (6th Cir. 1997). Based on numerous aspects of the

composition of Ohio common pleas courts and their divisions—including the fact they are created by

the Ohio Constitution; that the Ohio Constitution vests supervisory authority over all courts of Ohio

and the authority to promulgate rules for such courts in the Ohio Supreme Court; that the Ohio

Constitution dictates standards controlling the election, residency, tenure, compensation, and

eligibility of every Ohio common pleas judge; that state law delineates the jurisdiction of common

pleas courts; that state law vests the authority to hire personnel to the courts themselves; and that state

law compels county governments to provide support for the operation of the common pleas courts

within their borders—the Sixth Circuit concluded that “an Ohio common pleas court is not a segment

of county government, but an arm of the state for purposes of section 1983 liability and Eleventh

Amendment immunity analyses.” Id. at 268-69.

The Sixth Circuit later questioned the validity of Mumford’s holding in light of intervening

Supreme Court precedent that indicated that the question of who pays a damages judgment against

an entity is the most important factor in deciding whether an entity is an arm of the state, which the

7

decision in Mumford did not address. Alkire v. Irving, 330 F.3d 802, 811-12 (6th Cir. 2003).

Nonetheless, even after Alkire, the Sixth Circuit and courts in the Sixth Circuit have continued to hold

that common pleas and municipal courts are arms of the state of Ohio even though the state does not

pay for money judgments against them. For example, in Ward v. City of Norwalk, the Sixth Circuit

held that the Norwalk Municipal Court was an arm of the state, explicitly finding that “Alkire’s

emphasis on the source-of-payment factor does not change the conclusion that the Norwalk Municipal

Court is an arm of the state for § 1983 and Eleventh Amendment purposes.” 640 F. App’x 462, 465

(6th Cir. 2016). Similarly, in Ortiz v. Holmes, the court concluded that the Mahoning County Juvenile

Court was an arm of the state because “the importance of the county’s responsibility for any judgment

in this case is outweighed by the other factors that clearly counsel in favor of sovereign immunity.”

157 F. Supp. 3d 692, 702 (N.D. Ohio 2016); see also Hunter v. Hamilton Cty., No. 1:15-CV-540,

2016 WL 11463840, at *6 n.5 (S.D. Ohio May 5, 2016) (“[T]he Sixth Circuit has not overruled its

prior decisions finding state courts in Ohio to be arms of the state for purposes of Eleventh

Amendment immunity.”), report and recommendation adopted, 2016 WL 4836810 (S.D. Ohio Sept.

15, 2016).

Thus, the Court finds unpersuasive Local 860’s argument that the Juvenile Court is not

entitled to immunity because its expenses are paid by the county. Rather, this Court agrees with the

reasoning of the authority cited above holding that the other aspects of the composition of Ohio

common pleas courts support the conclusion that they are arms of the state—not the part of the county

in which they sit. Thus, the Court finds that the Juvenile Court is an arm of the state for Eleventh

Amendment immunity purposes. Accordingly, Local 860’s claims against the Juvenile Court are

barred in their entirety, and all claims against the Juvenile Court are dismissed. In addition, Local

8

860’s claims for monetary relief against Ms. Neff and Judge O’Malley in their official capacities are

barred and dismissed.

However, the Court agrees with Local 860 that its claims for prospective injunctive relief

against Ms. Neff and Judge O’Malley in their official capacities are not precluded by the Eleventh

Amendment. See Diaz, 703 F.3d at 964. Thus, Local 860’s claims for injunctive relief against Ms.

Neff and Judge O’Malley in their official capacities and the claims against them in their personal

capacities are not barred by the Eleventh Amendment.

b. Contracts Clause

In Count I of its Complaint, Local 860 asserts that Defendants’ unilateral termination of the

CBAs violated the Contracts Clause in Article I, Section 10 of the Constitution. (Doc. No. 1 at ¶¶

53-61.) Ms. Neff and Judge O’Malley argue that dismissal of Local 860’s Contracts Clause claim is

warranted because the Sixth Circuit has held that an alleged violation of the Contracts Clause does

not give rise to a cause of action under 42 U.S.C. § 1983. (Doc. No. 4 at 7-10.) Alternatively, they

contend that Local 860’s claim fails on the merits because the Juvenile Court is not a legislative body

and there was no change in the law that impaired the contracts at issue. (Id. at 10-11.) In response,

Local 860 admits that Sixth Circuit precedent provides that a Contracts Clause violation cannot give

rise to a cause of action under § 1983, but argues that the Court should nonetheless recognize a cause

of action in this case and that Local 860 has sufficiently pled a violation. (Doc. No. 6 at 11-16.)

Because controlling Sixth Circuit precedent precludes Local 860’s claim, the Court finds that

dismissal of Count I is appropriate.

The Contracts Clause provides that “[n]o State shall . . . pass any . . . Law impairing the

Obligation of Contracts.” U.S. Const. art. I, § 10. The Sixth Circuit has definitively ruled “that an

9

alleged Contracts Clause violation cannot give rise to a cause of action under § 1983.” Kaminski v.

Coulter, 865 F.3d 339, 347 (6th Cir. 2017). Although other circuit courts that have addressed the

issue are split as to whether a violation of the Contracts Clause may support a claim under § 1983,

see Watters v. Bd. of Sch. Directors of City of Scranton, 975 F.3d 406, 413 n.2 (3d Cir. 2020), this

Court is bound by the Sixth Circuit’s decision in Kaminski. Int’l Union, United Auto., Aerospace &

Agric. Implement Workers of Am. (UAW), AFL-CIO v. McClelland, No. 20-12433, 2020 WL

5834750, at *3 (E.D. Mich. Oct. 1, 2020) (“[T]his court is bound by Kaminski.”); see also Chinn v.

Jenkins, No. 3:02-cv-512, 2018 WL 488159, at *4 (S.D. Ohio Jan. 19, 2018) (“[T]here is a rule of

law about published Sixth Circuit opinions: they are controlling binding precedent for future Sixth

Circuit panels and for all district courts in the circuit.”).

Accordingly, Local 860’s claims pursuant to § 1983 premised on Ms. Neff’s and Judge

O’Malley’s alleged violations of the Contracts Clause must be dismissed. Local 860’s contention

that Kaminski is wrongly decided and its citations to the decisions of other circuit courts that have

disagreed with Kaminski are unpersuasive in light of the binding nature of the Sixth Circuit’s decision,

which has not been subsequently overruled. In addition, Local 860’s reliance on Welch v. Brown,

551 F. App’x 804 (6th Cir. 2014)—which found that the plaintiffs were likely to succeed on their §

1983 claims based on alleged violations of the Contracts Clause in the preliminary injunction

context—is misplaced, as Welch was decided before Kaminski and is an unpublished decision that

does not carry the same precedential weight. See, e.g., Bell v. Johnson, 308 F.3d 594, 611 (6th Cir.

2002) (“It is well-established law in this circuit that unpublished cases are not binding precedent.”).

10

Therefore, Count I, to the extent that it remained against Ms. Neff and Judge O’Malley in their official

and individual capacities, is dismissed.3

c. Takings Clause

In Count II of the Complaint, Local 860 alleges that Defendants’ unilateral termination of the

CBAs constituted an unconstitutional taking of the rights contained therein without just

compensation. (Doc. No. 1 at ¶¶ 62-72.) Ms. Neff and Judge O’Malley argue that this claim should

be dismissed because the CBAs are void or no longer enforceable and because Local 860 has not

alleged that any cognizable property interests have been taken since there are no allegations that any

members of the union have been terminated, discriminated against, denied paid sick leave, or

otherwise harmed. (Doc. No. 9 at 8.) With respect to the takings claims against them in their personal

capacities, Ms. Neff and Judge O’Malley also contend that the claims should be dismissed based on

the doctrine of qualified immunity because their actions did not violate any clearly established

constitutional rights. (Id. at 18-20; Doc. No. 4 at 19-21.) Local 860 argues that dismissal is not

appropriate because it has adequately alleged that Defendants deprived it and its members of

cognizable property interests in the rights provided by the CBAs without just compensation and that

the protections of qualified immunity are inapplicable because the individual Defendants knew their

conduct violated the Constitution. (Doc. No. 6 at 16-20, 28-29.) The Court finds that Local 860’s

takings claims against Ms. Neff and Judge O’Malley in both their official and personal capacities

should be dismissed.

3 Because Local 860’s Contracts Clause claim is precluded by Kaminski, the Court need not consider Ms. Neff’s and

Judge O’Malley’s arguments regarding their entitlement to qualified immunity in their individual capacities with respect

to this claim.

11

First, as noted above, Local 860’s claims against Ms. Neff and Judge O’Malley in their official

capacities are not precluded by sovereign immunity under the Eleventh Amendment only to the extent

that Local 860 seeks prospective injunctive relief. However, a takings claim under the Fifth

Amendment cannot support a request for injunctive relief if there is an adequate state process

available for obtaining compensation for the taking. See Knick v. Twp. of Scott, Pennsylvania, 139

S. Ct. 2162, 2176 (2019) (“As long as an adequate provision for obtaining just compensation exists,

there is no basis to enjoin the government’s action effecting a taking.”). In those circumstances,

courts have consistently dismissed claims for injunctive relief based on a Fifth Amendment takings

claim. E.g., Daugherty Speedway, Inc. v. Freeland, No. 4:20-CV-36-PPS, 2021 WL 633106, at *3

(N.D. Ind. Feb. 17, 2021) (dismissing claims for injunctive relief because “[t]he appropriate remedy

for a taking under the Fifth Amendment is compensation in the form of damages and not injunctive

relief”); Culinary Studios, Inc. v. Newsom, No. 1:20-CV-1340 AWI EPG, 2021 WL 427115, at *14

(E.D. Cal. Feb. 8, 2021) (“[T]o the extent that Plaintiffs seek declaratory or injunctive relief under

the takings claim, such relief is inappropriate.”); Hund v. Cuomo, 501 F. Supp. 3d 185, 206

(W.D.N.Y. 2020) (dismissing the injunctive-relief portion of the plaintiff’s takings claim because

“New York law provides a procedure through which he can obtain compensation for any taking”).

Here, there is no indication that Ohio does not provide a process for obtaining just

compensation for a taking. Indeed, the Sixth Circuit has recognized that “Ohio’s statutory mechanism

for obtaining compensation to remedy a Takings Clause violation is reasonable, certain, and

adequate.” Ladd v. Marchbanks, 971 F.3d 574, 581 n.5 (6th Cir. 2020). Further, the Sixth Circuit

has held that a taking based on the breach of collective bargaining agreements “can be vindicated

through a suit in contract upon the disputed collective-bargaining agreements.” Kaminski, 865 F.3d

12

at 349. Accordingly, to the extent that Local 860 seeks injunctive relief based on its takings claim,

that relief is unavailable. Therefore, the remaining aspect of Local 860’s takings claim against Ms.

Neff and Judge O’Malley in their official capacities for prospective injunctive relief must be

dismissed. To the extent that Local 860 seeks injunctive relief against Ms. Neff and Judge O’Malley

in their personal capacities, the takings claim also fails for the same reason.

However, the Court still must assess Local 860’s takings claims for damages against Ms. Neff

and Judge O’Malley in their personal capacities. Importantly, under the doctrine of qualified

immunity, “courts may not award damages against a government official in his personal capacity

unless ‘the official violated a statutory or constitutional right,’ and ‘the right was “clearly established”

at the time of the challenged conduct.’” Lane v. Franks, 573 U.S. 228, 243 (2014) (quoting Ashcroft

v. al-Kidd, 563 U.S. 731, 735 (2011)). The Sixth Circuit “has cautioned that although qualified

immunity claims should be resolved early, ‘it is generally inappropriate for a district court to grant a

12(b)(6) motion to dismiss on the basis of qualified immunity.’” Mich. Interlock, LLC v. Alcohol

Detection Sys., LLC, 802 F. App’x 993, 1002 (6th Cir. 2020) (quoting Courtright v. City of Battle

Creek, 839 F.3d 513, 518 (6th Cir. 2016)). Nonetheless, dismissal based on qualified immunity at

the pleadings stage may be appropriate under certain circumstances. See Kaminski, 865 F.3d at 344

(“Nonetheless, certain immunity questions can still be resolved at the pleading stage with a

sufficiently developed record.”); Jackson v. Schultz, 429 F.3d 586, 589 (6th Cir. 2005) (“Despite

liberal notice pleading standards, this circuit permits a reviewing court to dismiss under Fed.R.Civ.P.

12(b)(6) based on qualified immunity.”).

To determine whether an official is entitled to qualified immunity, courts “apply a well-

established two-prong test: (1) whether the facts, when taken in the light most favorable to the party

13

asserting the injury, show the officer’s conduct violated a constitutional right; and (2) whether the

right violated was clearly established such ‘that a reasonable official would understand that what he

is doing violates that right.’” Id. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). These steps

may be addressed in any order, and the defendant officer need only prevail on one of them to be

granted qualified immunity. See Coffey v. Carroll, 933 F.3d 577, 584 (6th Cir. 2019); Maben v.

Thelen, 887 F.3d 252, 269 (6th Cir. 2018).

With regard to the second step, “clearly established” means that the law is so clear at the time

of the incident that every reasonable officer would understand the unlawfulness of his conduct.

District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). As the Supreme Court recently explained:

To be clearly established, a legal principle must have a sufficiently clear foundation

in then-existing precedent. The rule must be “settled law,” Hunter v. Bryant, 502 U.S.

224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam ), which means it is

dictated by “controlling authority” or “a robust ‘consensus of cases of persuasive

authority,’ ” al–Kidd, supra, at 741–742, 131 S.Ct. 2074 (quoting Wilson v. Layne,

526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)). It is not enough that the

rule is suggested by then-existing precedent. The precedent must be clear enough that

every reasonable official would interpret it to establish the particular rule the plaintiff

seeks to apply. See Reichle, 566 U.S., at 666, 132 S.Ct. 2088. Otherwise, the rule is

not one that “every reasonable official” would know. Id., at 664, 132 S.Ct. 2088

(internal quotation marks omitted).

The “clearly established” standard also requires that the legal principle clearly prohibit

the officer’s conduct in the particular circumstances before him. The rule’s contours

must be so well defined that it is “clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct.

2151, 150 L.Ed.2d 272 (2001). This requires a high “degree of specificity.” Mullenix

v. Luna, 577 U.S. ----, ----, 136 S.Ct. 305, 309, 193 L.Ed.2d 255 (2015) (per curiam ).

We have repeatedly stressed that courts must not “define clearly established law at a

high level of generality, since doing so avoids the crucial question whether the official

acted reasonably in the particular circumstances that he or she faced.” Plumhoff,

supra, at 2023 (internal quotation marks and citation omitted). A rule is too general

if the unlawfulness of the officer’s conduct “does not follow immediately from the

conclusion that [the rule] was firmly established.” Anderson, supra, at 641, 107 S.Ct.

3034.

14

Id. at 589-90. Thus, in evaluating whether a constitutional right was clearly established for purposes

of qualified immunity, courts “must examine the particular situation that [the defendant officers]

confronted and ask whether the law clearly established that their conduct was unlawful.” Howse v.

Hodous, 953 F.3d 402, 407 (6th Cir. 2020).

Accordingly, to survive Defendants’ Motion to Dismiss, Local 860 must plausibly allege not

only that Defendants’ actions constituted an unconstitutional taking, but that a reasonable official

would have known that such actions violated Local 860’s constitutional rights. Generally, “[t]he

Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment,

prohibits the government from taking private property for public use without just compensation.”

Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (internal citation omitted). The Sixth Circuit

has established a two-part test to evaluate whether a governmental action constitutes a taking of

private property without just compensation. Puckett v. Lexington-Fayette Urban Cty. Gov’t, 833 F.3d

590, 609 (6th Cir. 2016). “First, ‘the court must examine whether the claimant has established a

cognizable property interest for the purposes of the Just Compensation Clause.’” Id. (quoting

Coalition for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 481 (6th Cir. 2004)).

“Second, ‘where a cognizable property interest is implicated, the court must consider whether a taking

occurred.’” Id. (quoting Coalition for Gov’t Procurement, 365 F.3d at 481).

Here, even assuming, arguendo, that the Juvenile Court’s termination of the CBAs, at the

direction of Ms. Neff and Judge O’Malley, constituted a taking of Local 860’s and its members’

property without just compensation, Ms. Neff and Judge O’Malley are entitled to qualified immunity

because their actions in this context were not clearly unlawful. Specifically, Local 860’s allegations

do not demonstrate that Ms. Neff and Judge O’Malley deprived Local 860 of a clearly established

15

property right. To wit, Local 860’s takings claim is based entirely on the alleged wrongful deprivation

of rights contained in the CBAs. (See Doc. No. 1 at ¶¶ 63-64; Doc. No. 6 at 17-18.) However, Ohio’s

Public Employees Collective Bargaining Act, which extended collective bargaining rights to public

employees, specifically excludes court officers and employees from its scope. State ex rel. Ohio

Council 8, Am. Federation of State, Cty. and Mun. Employees, AFL-CIO v. Spellacy, 17 Ohio St.3d

112, 114-15 (1985); Ohio Rev. Code § 4117.01(C)(8). As a result, the decision to recognize

collective bargaining within Ohio’s courts is a matter of judicial discretion. Spellacy, 17 Ohio St.3d

at 115; see also Ohio Rev. Code § 4117.03(C).

Moreover, the stated term of the most recent CBAs between Local 860 and the Juvenile Court

expired on December 31, 2019, after which the parties continued to negotiate for nearly a year before

Defendants informed Local 860 that they would no longer adhere to the CBAs. As a result, although

the CBAs do include provisions that the parties would continue to abide by their terms until a

successor agreement was negotiated or until the occurrence of certain other conditions, it is far from

clear that the CBAs remained in effect at the time of Defendants’ unilateral termination. Indeed, that

issue is currently being litigated in the state court action between the Juvenile Court and Local 860

in which the Juvenile Court has argued that the CBAs have expired according to their unambiguous

terms, that the CBAs were illusory and void due to a lack of consideration, and that the perpetual

nature of the CBAs violate Ohio public policy. (Doc. No. 4-1 at 9-11; Doc. No. 4-2 at 9-11.)

Thus, while Local 860 may ultimately prevail on the issue of whether the CBAs were valid

and in effect at the time of the termination, the belief by Ms. Neff and Judge O’Malley that the CBAs

were not valid or effective and that they were not depriving Local 860 or its members of any

16

cognizable property interests by announcing their termination was not unreasonable.4 Nor has Local

860 provided any support for its view that Ms. Neff and Judge O’Malley are assumed to know the

legality of their actions with absolute accuracy simply because they are both lawyers and Judge

O’Malley is a judge. Even if mistaken as to the validity of the CBAs and whether Local 860 retained

cognizable property rights therein, the individual Defendants did not act unreasonably or violate any

clearly established rights when terminating the CBAs. Consequently, Ms. Neff and Judge O’Malley

are entitled to qualified immunity on Local 860’s takings claims for damages against them in their

personal capacities, and the Court will grant the Motion to Dismiss in that respect.

d. Procedural Due Process

Count II of Local 860’s Complaint also includes a claim under the Due Process Clause based

on Defendants’ alleged failure to provide adequate procedures, such as notice and an opportunity to

be heard, prior to the termination of the CBAs. (See Doc. No. 1 at ¶¶ 62-72.) Ms. Neff and Judge

O’Malley assert this claim should be dismissed because their decision to cease recognizing the union

and the CBAs was not sufficiently individualized to trigger due process protections. (Doc. No. 4 at

14-15.) They also argue that Local 860’s due process claim fails because the availability of a state

law breach of contract claim is an adequate procedural protection for the deprivation of property

alleged in this case. (Doc. No. 9 at 14-15.) Local 860 opposes dismissal and argues that the contested

actions were sufficiently individualized to warrant due process protections because they were targeted

toward two CBAs specifically affecting Local 860 and its members. (Doc. No. 6 at 20-22.) Upon

review, the Court concludes that Local 860’s due process claims against Ms. Neff and Judge

4 To be clear, the Court expresses no opinion as to the merits of the parties’ state court claims. Instead, the Court only

finds that the belief that the CBAs did not provide cognizable property rights because the CBAs were either invalid or

expired was not unreasonable.

17

O’Malley in both their official and individual capacities should be dismissed based on the availability

of a state law breach of contract claim to remedy the alleged deprivation of property.

“The Fourteenth Amendment forbids a state from depriving any person of life, liberty, or

property without due process of law.” Taylor Acquisitions, L.L.C. v. City of Taylor, 313 F. App’x

826, 830 (6th Cir. 2009). “Procedural due process generally requires that the state provide a person

with notice and an opportunity to be heard before depriving that person of a property or liberty

interest.” Warren v. City of Athens, 411 F.3d 697, 708 (6th Cir. 2005). “To establish a procedural

due process violation, Plaintiff must demonstrate that 1) it possessed a constitutionally protected

property or liberty interest; 2) it was deprived of that interest; and 3) the state did not afford it adequate

procedural rights prior to depriving it of that interest.” Taylor Acquisitions, 313 F. App’x at 830.

Generally, however, “a claim for a due-process violation does not lie where the thrust of the

plaintiffs’ argument is simply breach of contract.” Kaminski, 865 F.3d at 348. As explained by the

Sixth Circuit:

“This court has held that ‘a state breach of contract action may ... provide an adequate

remedy for some deprivations of a contractually created property interest.’ ” Taylor

Acquisitions, L.L.C. v. City of Taylor, 313 Fed.Appx. 826, 831 (6th Cir. 2009) (quoting

Ramsey v. Bd. of Educ., 844 F.2d 1268, 1273 (6th Cir. 1988)). Because a due-process

claim is predicated on the deprivation of a constitutionally protected interest without

due process of law, the availability of a state breach-of-contract remedy defeats the

due-process claim. As the Ramsey court explained, “it is neither workable nor within

the intent of [§] 1983 to convert every breach of contract claim against a state into a

federal claim.” Ramsey, 844 F.2d at 1273 (citations omitted). Consequently, “[a] state

breach of contract action is most clearly an adequate remedy for a property deprivation

when the only basis for federal jurisdiction is that a state actor is one of the contracting

parties.” Ibid.

Id.

Thus, in Kaminski, the Sixth Circuit held that the plaintiffs’ due process claim based on the

termination and replacement of certain retiree health care benefit provisions in collective bargaining

18

agreements should be dismissed. Id. The court held the plaintiffs had not made out a viable due-

process claim as a result of their failure “to explain why a state breach-of-contract claim against the

City of Lincoln Park is insufficient to safeguard their contractual property rights.” Id. Similarly, in

Taylor Acquisitions, the Sixth Circuit held that the plaintiff failed to set forth a procedural due process

violation based on the defendant city’s termination of a purchase agreement because a breach of

contract action would be an adequate procedural protection. 313 F. App’x at 832; see also Superior

Communications v. City of Riverview, Michigan, 881 F.3d 432, 446 (6th Cir. 2018) (holding the

plaintiff had not made out a viable due-process claim when its “purported property right is derived

from the License Agreement and is therefore, at its core, simply a claim for breach of contract”).

In the instant matter, Local 860’s due process claim is based on the deprivation of property

rights that arose from the CBAs. (Doc. No. 6 at 17-18, 21.) For example, Local 860 asserts that it

and its members had cognizable property interests as a result of the CBAs’ provisions relating to just

cause protections, processes for dues deductions, wages, seniority rights, and overtime rights. (Id.)

Because Local 860’s purported property rights are derived from the CBAs, its claim is, at its core,

simply a claim for breach of contract. The only difference between this case and a typical breach of

contract case is that the Juvenile Court happened to be one of the contracting parties. Consequently,

a breach of contract action—which Local 860 has already initiated in state court in response to the

Juvenile Court’s declaratory judgment actions—is an adequate procedural protection for the

termination of the CBAs, and Local 860 has failed to set forth a viable due process claim.

19

Accordingly, the due process claim contained in Count II, to the extent that it remained against Ms.

Neff and Judge O’Malley in their official and individual capacities, is dismissed.5

e. First Amendment Retaliation

Finally, in Count III of its Complaint, Local 860 alleges that Defendants retaliated against it

and its members for exercising their rights to associate for their collective good and mutual protection

and to petition the government for the redress of wrongs under the First Amendment. (Doc. No. 1 at

¶¶ 73-76.) Ms. Neff and Judge O’Malley contend Local 860’s retaliation claim fails because there is

no constitutional right to collectively bargain and Local 860 and its members therefore have not

engaged in any protected activity, because Ms. Neff and Judge O’Malley did not take any adverse

actions against Local 860 and its members, and because Local 860’s conclusory allegations that any

adverse action was in response to protected activity are insufficient. (Doc. No. 4 at 15-19; Doc. No.

9 at 8-13.) In response, Local 860 argues that it has sufficiently alleged each element of a First

Amendment retaliation claim based on its allegations that Ms. Neff and Judge O’Malley failed to

bargain in good faith and eliminated all union and employee rights under the CBAs in retaliation for

Local 860’s and its members’ exercise of their First Amendment rights. (Doc. No. 6 at 22-25.) Upon

review of the parties’ arguments, the Court concludes that Local 860 has failed to state a claim for a

violation of the First Amendment.

“In order to prove a claim for retaliation, a plaintiff must establish the following elements: (1)

that the plaintiff was engaged in a constitutionally protected activity; (2) that the defendant’s adverse

action caused the plaintiff to suffer an injury that would likely chill a person of ordinary firmness

5 Because Local 860 has not adequately alleged a due process violation, the Court need not consider Ms. Neff’s and Judge

O’Malley’s arguments regarding their entitlement to qualified immunity in their individual capacities with respect to this

claim.

20

from continuing to engage in that activity; and (3) that the adverse action was motivated at least in

part as a response to the exercise of the plaintiff's constitutional rights.” Bloch v. Ribar, 156 F.3d

673, 678 (6th Cir. 1998).

A “public employee surely can associate and speak freely and petition openly, and he is

protected by the First Amendment from retaliation for doing so.” Smith v. Arkansas State Highway

Emp., Local 1315, 441 U.S. 463, 465 (1979); see also Van Compernolle v. City of Zeeland, 241 F.

App’x 244, 251 (6th Cir. 2007) (“[A] government employer cannot take adverse action against an

employee solely because that employee is a union member.”). “But the First Amendment is not a

substitute for the national labor relations laws.” Smith, 441 U.S. at 464. Indeed, the First Amendment

does not impose any affirmative obligation on the government to respond to or recognize a union and

bargain with it. Id. at 465.

Applying these principles, in Smith, the Supreme Court addressed a complaint by a union and

several of its members alleging that a state highway commission violated the First Amendment

because it would not consider employee grievances submitted by the union and instead required

employees to submit their grievances directly to their designated employer representatives. Id. at

463-64. The Supreme Court found that because there was no claim that the state highway commission

“prohibited its employees from joining together in a union, or from persuading others to do so, or

from advocating any particular ideas,” there was “no claim of retaliation or discrimination proscribed

by the First Amendment.” Id. at 465. Rather, the Supreme Court concluded: “Far from taking steps

to prohibit or discourage union membership or association, all that the Commission has done in its

challenged conduct is simply to ignore the union. That it is free to do.” Id. at 466; see also Arkansas

State Highway Emp. Local 1315 v. Kell, 628 F.2d 1099, 1102 (8th Cir. 1980) (holding that “the First

21

Amendment does not impose any duty on a public employer to affirmatively assist, or even to

recognize a union” and finding that no violation occurred when the defendant stopped withholding

dues from the wages of union members); Indianapolis Educ. Ass’n v. Lewallen, No. 17808, 1969 WL

11147, at *2 (7th Cir. Aug. 13, 1969) (“The refusal of the defendants-appellants to bargain in good

faith does not equal a constitutional violation of plaintiffs-appellees’ positive rights of association,

free speech, petition, equal protection, or due process.”).

Likewise, here, Local 860 has not alleged that Ms. Neff and Judge O’Malley retaliated against

it or its members by prohibiting Juvenile Court employees from joining together in a union, from

persuading others to do so, or from advocating any particular ideas. Instead, in support of its

retaliation claim, Local 860 points to Ms. Neff’s and Judge O’Malley’s failure to bargain in good

faith and the loss of rights resulting from the termination of the CBAs, such as the fact that union

dues are no longer deducted from employees’ wages, that stewards and union representatives are no

longer recognized, that Local 860 no longer has access to bulletin boards, and that seniority rights

and other employee protections have been eliminated. (Doc. No. 6 at 23-25.) However, the alleged

loss of rights all stem from the fact that the Juvenile Court, through Ms. Neff and Judge O’Malley,

has chosen to no longer recognize Local 860 and the previously negotiated CBAs, which it is under

no constitutional obligation to do. Because Local 860’s retaliation claim is based on the decision of

Defendants to ignore the union, not actions that target Local 860 or its members for adverse treatment

based on their union affiliation, the Court finds that dismissal is warranted. Therefore, to the extent

22

that Count III remained against Ms. Neff and Judge O’Malley in their official and individual

capacities, it is dismissed.6

IV. Conclusion

For the reasons set forth above, Defendants’ Motion to Dismiss (Doc. No. 4) is GRANTED.

IT IS SO ORDERED.

s/Pamela A. Barker

PAMELA A. BARKER

Date: June 17, 2021 U. S. DISTRICT JUDGE

6 Because Local 860 has not adequately alleged a First Amendment retaliation claim, the Court need not consider Ms.

Neff’s and Judge O’Malley’s arguments regarding their entitlement to qualified immunity in their individual capacities

with respect to this claim.

23