The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CAROLINE’S KIDS ) CASE NO. 1:17CV297
PET RESCUE, et al., )
Plaintiffs, ) SENIOR JUDGE
) CHRISTOPHER A. BOYKO
vs. )
) OPINION AND ORDER
LAKE HUMANE SOCIETY, et al., )
)
Defendants. )
CHRISTOPHER A. BOYKO, SR. J.:
This matter comes before the Court upon the Motion (ECF DKT #53) for Summary
Judgment of Defendants: Lake Humane Society; Lee Nesler (Executive Director); Rich
Harmon (President); Leanne Pike (Humane Agent); Ronald Traub (Vice President); Terri
Miller (Treasurer); Lori Caszatt (Board Member); Karin Henschel (Board Member); Laura
Gray (Board Member); Dawn Plante (Board Member); James Schleicher (Board Member);
and Deborah Nemeckay Doyle (Board Member). For the following reasons, the Motion is
granted.
I. FACTUAL BACKGROUND
Plaintiffs Tom and Judie Brown operated the non-profit organization, Caroline’s Kids
Pet Rescue, in Painesville, Ohio. The Rescue accepted and cared for abandoned, feral, ill,
aged and dying cats. On November 17, 2016, Defendant Lake Humane Society received
a complaint that cats at Caroline’s Kids were being mistreated. On November 28, 2016,
humane agent, Leanne Pike, and Lake Humane employee, Mandy Osborne, came to the
Caroline’s Kids premises to investigate the complaint. They received permission over the
phone from Judie Brown to enter and look at the facility, the animals and any veterinary
records. Following Pike and Osborne’s investigation, Lake Humane obtained search warrants
and seized approximately 161 cats.
On August 18, 2016, Defendant Mentor Police Officer Jeff Greco accompanied
Defendant Leanne Pike, an agent of the Lake Humane Society, to the home of individual
Plaintiff Patricia C. Nowak. Pike was investigating suspected abuse or neglect of one of
Nowak’s dogs. Upon entering Nowak’s house, observing the dog and talking with Nowak,
Pike suggested that she could help arrange for the dog’s adoption. Nowak signed an Animal
Surrender Form.
On December 11, 2016, Lake Humane appointed Defendants DanaMarie Pannella and
J. Jeffrey Holland of the law firm Holland & Muirden as special prosecutors on the Caroline’s
Kids investigation. Defendant Pannella reviewed the relevant reports, photos and
post-seizure veterinary diagnoses and determined that sufficient evidence existed to charge
Plaintiffs Tom and Judie Brown, Ellen Distler and Virginia Wolford Lee with Companion
Animal Cruelty, in violation of Ohio Revised Code § 959.131, a Misdemeanor of the Second
Degree.
The Browns were unable to reach an agreement to avoid prosecution and payment of
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restitution in the amount of $9,000.00 to Lake Humane for the costs of rehabilitation and
boarding of the cats. Instead, a mandatory probable cause hearing was scheduled. The
Browns obtained a continuance of the first hearing and later waived their right to a probable
cause hearing.
On January 23, 2017, misdemeanor charges were filed against Plaintiffs Distler and
Wolford Lee. Thereafter, on February 14, 2017, misdemeanor animal cruelty charges were
filed against Tom and Judie Brown in Painesville Municipal Court. The criminal cases
against all four Plaintiffs were consolidated.
On February 13, 2017, the instant Complaint was instituted, alleging First, Fourth and
Fourteenth Amendment violations under 42 U.S.C. § 1983; the unconstitutionality of the Ohio
statutory scheme for humane societies; and fraud, extortion and racketeering against Lake
Humane, its agents, officers and board members. Also in the Complaint, Plaintiff Nowak
separately alleged that Defendants obtained the surrender of her dog through intimidation by
threat of arrest and jail; alleged racketeering claims against all Defendants; alleged that
Defendants Greco and Pike forced their way into her house in violation of her Fourth
Amendment rights; and alleged that Defendants used extortion through fear to compel Nowak
to surrender her dog. Nowak claimed her Due Process rights were violated when Defendants
forced her to give up her dog; and her First Amendment rights were violated because she was
prevented from visiting her dog at the shelter.
On September 11, 2017, the Court stayed the within matter pursuant to the Younger
Doctrine and in light of the pending state criminal proceedings. The Court specifically
acknowledged that the pending state court proceedings implicated a significant state interest
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and provided Plaintiffs an adequate opportunity to assert their constitutional challenges.
(ECF DKT #41 at 10).
The Browns were each convicted of twenty-four Counts of Companion Animal
Cruelty. Their convictions were affirmed in the Eleventh Appellate District case of State of
Ohio v. Virginia Wolford Lee, et al.; and the Ohio Supreme Court declined to accept a
discretionary appeal. Thus, all state appellate remedies were exhausted.
Upon Defendants’ Motion, the stay was lifted; and the above-captioned case was
reactivated to allow Defendants to file dispositive motions unless Plaintiffs voluntarily
dismissed their Complaint before that time.
To date, Plaintiffs have not moved to reactivate the prosecution of their case nor to
seek voluntary dismissal.
Consequently, the Lake Humane Defendants filed the instant Motion (ECF DKT #53)
for Summary Judgment, arguing that they properly enforced the animal cruelty statutes in the
Ohio Revised Code; that the statutory scheme for humane societies is constitutionally valid;
that none of Plaintiffs’ constitutional rights were violated; and that Plaintiffs’ claims of fraud,
extortion and racketeering are unfounded. Plaintiffs have filed no response to this dispositive
motion.
II. LAW AND ANALYSIS
Fed.R.Civ.P. 56 Standard of Review
Summary judgment shall be granted only if “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.” See Fed.R.Civ.P. 56(a). The burden is on the moving party to conclusively show no
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genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Lansing Dairy. Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). The moving party must
either point to “particular parts of materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or show “that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” See Fed.R.Civ.P. 56(c)(1)(A), (B). A court
considering a motion for summary judgment must view the facts and all inferences in the light
most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). Once the movant presents evidence to meet its burden, the
nonmoving party may not rest on its pleadings, but must come forward with some significant
probative evidence to support its claim. Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at
1347.
This Court does not have the responsibility to search the record sua sponte for genuine
issues of material fact. Betkerur v. Aultman Hospital Ass 'n., 78 F.3d 1079, 1087 (6th Cir.
1996); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 404-06 (6th Cir. 1992). The
burden falls upon the nonmoving party to “designate specific facts or evidence in dispute,”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); and if the nonmoving party
fails to make the necessary showing on an element upon which it has the burden of proof, the
moving party is entitled to summary judgment. Celotex, 477 U.S. at 323. Whether summary
judgment is appropriate depends upon “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
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prevail as a matter of law.” Amway Distributors Benefits Ass 'n v. Northfield Ins. Co., 323
F.3d 386, 390 (6th Cir. 2003) (quoting Anderson, 477 U.S. at 251-52).
Unopposed motions
Local Rule 7.1(g) authorizes the Court to “rule on unopposed motions without hearing
at any time after the time for filing an opposition has expired.” Pursuant to Local Rule 7.1(d),
“each party opposing a motion must serve and file a memorandum in opposition within thirty
(30) days after service of any dispositive motion.” The district court’s power to grant
dispositive motions because they are unopposed is firmly settled. Demsey v. R.J. Reynolds
Tobacco Co., 2005 WL 1917934, *2 (N.D.Ohio 2005); Peacock v. Bayview Loan Serv., 2005
U.S. Dist. LEXIS 10276, *9-10 (N.D.Ohio 2005) (both citing to Cacevic v. City of Hazel
Park, 226 F.3d 483, 492 (6th Cir. 2000)). A party’s continuing “failure to respond” may be
deemed a “confession” to the motion’s merit. Cacevic, id. Any further review by this Court
would be an inefficient use of the Court’s limited resources. Thomas v. Arn, 728 F.2d 813
(6th Cir. 1984), aff’d, 474 U.S. 140 (1985); Howard v. Secretary of Health and Human
Services, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).
Ohio Humane Societies and Enforcement
Lake Humane Society is organized under R.C. § 1717.05. The precise language of the
subsequent section, R.C. § 1717.06, reads: “A county humane society organized under
section 1717.05 of the Revised Code may appoint agents for the purpose of prosecuting any
person guilty of an act of cruelty to persons or animals.” (Emphasis added).
In addition, pursuant to R.C. § 2931.18: “A humane society or its agent may employ
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an attorney, and may also employ one or more assistant attorneys to prosecute violations of
law relating to . . . prevention of cruelty to animals or children.”
Moreover, the prosecution by counsel employed by a humane society of a criminal
action relating to cruelty to animals does not violate the constitutional requirement that
prosecutions be carried on in the name of and by the authority of the state. State v. Hafle, 52
Ohio App.2d 9 (1977).
Plaintiffs offer no opposing arguments and provide no more than bare allegations
challenging the constitutionality of the statutory framework for humane societies and the
purported unlawful delegation of their criminal prosecution to private persons or entities.
Without question, county humane societies have statutory authority pursuant to
R.C. § 2931.18 to appoint attorneys to prosecute violations of law relating to animal cruelty.
Furthermore, a federal district court does not sit as a reviewing tribunal over state or
municipal courts which, in this instance, have affirmed the criminal cases against Plaintiffs.
Therefore, the Court finds that Plaintiffs’ animal cruelty prosecutions brought by Lake
Humane Society as well as Plaintiffs’ ensuing misdemeanor convictions were statutorily
appropriate and constitutionally valid.
Racketeer Influenced and Corrupt Organizations (“RICO”)
18 U.S.C. § 1962(c) provides:
It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of
such enterprise's affairs through a pattern of racketeering activity or collection
of unlawful debt.
To state a RICO claim, a plaintiff must plead the following elements: “(1) conduct (2)
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of an enterprise (3) through a pattern (4) of racketeering activity.” Ouwinga v. Benistar 419
Plan Servs., Inc., 694 F.3d 783, 791 (6th Cir. 2021), quoting Moon v. Harrison Piping Supply,
465 F.3d 719, 723 (6th Cir. 2006).
“Conduct”
A plaintiff must set forth allegations to establish that the defendant conducted or
participated, “directly or indirectly, in the conduct of [the RICO] enterprise’s affairs.”
18 U.S.C. § 1962(c); Ouwinga, 694 F.3d at 791-792.
In Reves v. Ernst & Young, the Supreme Court held that participation in the conduct
of an enterprise’s affairs requires proof that the defendant participated in the “operation or
management” of the enterprise. 507 U.S. 170 (1993).
“Enterprise”
RICO defines an “enterprise” as “any individual, partnership, corporation, association,
or other legal entity and any union or group of individuals associated in fact although not a
legal entity.” 18 U.S.C. § 1961(4).
In order to establish the existence of an “enterprise” under § 1962(c), a plaintiff is
required to prove: (1) an ongoing organization with some sort of framework or superstructure
for making and carrying out decisions; (2) that the members of the enterprise functioned as a
continuing unit with established duties; and (3) that the enterprise was separate and distinct
from the pattern of racketeering activity in which it engaged. Ouwinga, 694 F.3d at 793;
United States v. Chance, 306 F.3d 356, 372 (6th Cir. 2002) (citing Frank v. D'Ambrosi, 4 F.3d
1378, 1386 (6th Cir.1993)).
“Pattern of Racketeering Activity”
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To establish a substantive RICO violation, a plaintiff must show “a pattern of
racketeering activity.” 18 U.S.C. § 1962(c). A pattern of racketeering activity requires, at a
minimum, two acts of racketeering activity within ten years of each other. 18 U.S.C.
§ 1961(5).
The minimum two acts are not necessarily sufficient and a plaintiff must show “that
the racketeering predicates are related, and that they amount to or pose a threat of continued
criminal activity.” H.J. Inc. v. NW. Bell Tel. Co., 492 U.S. 229, 237–39 (1989). This
requirement is known as the “relationship plus continuity” test. See Brown v. Cassens
Transp. Co., 546 F.3d 347, 355 (6th Cir. 2008).
In the absence of any contravening affidavits, sworn testimony or other relevant
evidence offered by Plaintiffs, their RICO claims against the Lake Humane Defendants fail.
Plaintiffs have not identified any illegal conduct and have not demonstrated that any
of the Lake Humane Defendants’ activities affected interstate or foreign commerce as
required by 18 U.S.C. § 1962(c). It is undisputed that Defendants investigate credible reports
of animal neglect or cruelty in furtherance of state and local laws. (Defendant Nesler’s
Affidavit, ECF DKT #53-5). Plaintiffs cannot satisfy the interstate commerce aspect of the
RICO statute.
Plaintiffs allege that the Lake Humane Defendants use fraud and extortion to
unjustifiably compel private rescue facilities to surrender their animals and to pay crippling
amounts of restitution in order to eliminate competition for charitable donations. (Complaint,
ECF DKT #1, ¶ 35, et seq.). At the summary judgment stage, however, Plaintiffs cannot rely
on their pleadings alone. The Lake Humane Defendants proffer the affidavit of their
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Executive Director explaining the Society’s legitimate purpose; and provide documentation of
the state prosecution and conviction of Plaintiffs Tom Brown, Judie Brown, Ellen Distler and
Virginia Lee which have been upheld at every level. Without producing evidence of their
own, Plaintiffs cannot demonstrate racketeering conduct nor a pattern of illicit activity.
Constitutional Violations pursuant to 42 U.S.C. § 1983
As the Supreme Court instructed in Collins v City of Harker Heights, Texas, 503 U.S.
115, 120-21 (1992): “Section 1983 provides a remedy against ‘any person’ who, under color
of state law, deprives another of rights protected by the Constitution.” To prevail, a plaintiff
must demonstrate that a specific defendant’s actions deprived him of one or more
constitutional rights. See Vos v. Cordray, 719 F.Supp.2d 832, 839 (N.D. Ohio 2010).
Plaintiffs’ § 1983 claims against the Lake Humane Defendants fail as a matter of law
because Plaintiffs cannot establish any constitutional violations.
After Defendant Lake Humane Society’s agent inspected the conditions at Plaintiff
Caroline’s Kids Pet Rescue premises, the agent obtained a court-issued search warrant.
(Defendant Nesler’s Affidavit, ECF DKT #53-5 at ¶ 18). Thereafter, Plaintiffs voluntarily
surrendered 161 cats and ultimately waived their right to a probable cause hearing in the
municipal court misdemeanor proceeding. (Id. at ¶ 10).
When Defendants Pike and Greco investigated animal abuse at Plaintiff Nowak’s
home, she allowed them inside; and ultimately, Nowak executed an Animal Surrender Form
turning her dog over to Pike. Nowak signed and initialed a statement relinquishing all
ownership interest in the dog and thereby forgoing any “visitation rights.”
Beyond the mere allegations in Plaintiffs’ Complaint, Plaintiffs provide no contrary
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evidence to establish violations of the First Amendment, nor of Fourth Amendment Search
and Seizure protections nor deprivation of Due Process rights provided by the Fourteenth
Amendment.
III. CONCLUSION
For all these reasons therefore, the Court deems Plaintiffs’ continuing “failure to
respond” to be a “confession” to the merits of Defendants’ Motion. Cacevic, id. Any further
review by this Court would be a waste of the Court’s limited resources. Thomas v. Arn, id.
The Motion (ECF DKT #53) for Summary Judgment of Defendants: Lake Humane Society;
Lee Nesler (Executive Director); Rich Harmon (President); Leanne Pike (Humane Agent);
Ronald Traub (Vice President); Terri Miller (Treasurer); Lori Caszatt (Board Member); Karin
Henschel (Board Member); Laura Gray (Board Member); Dawn Plante (Board Member);
James Schleicher (Board Member); and Deborah Nemeckay Doyle (Board Member) is
granted.
IT IS SO ORDERED.
DATE: February 14, 2022
s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
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