Jocke v. City of Medina, Ohio

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RALPH E. JOCKE, et al., ) CASE NO.: 1:21-cv-01310

)

Plaintiffs, ) JUDGE JOHN R. ADAMS

)

v. )

)

CITY OF MEDINA, OHIO ) MEMORANDUM OF OPINION AND

) ORDER

Defendant. )

I. BACKGROUND

The conflict brought before this Court between Plaintiffs, Ralph E. Jocke (“Jocke”), Patricia

A. Walker (“Walker”), and Keith A. Rasey (“Rasey”) (collectively, “Plaintiffs”), and Defendant

City of Medina, Ohio (“Medina”) began in 2019 when Medina and Medina County initiated a joint

courthouse project. (Compl. ¶¶ 7, 11-12, ECF No. 1.) Plaintiffs desired increased public input on

the joint courthouse project. (Id. at ¶¶ 9-10, 15, 20-21.) In 2019, a petition drive collected enough

signatures to include a ballot initiative related to the joint courthouse project on Medina’s

November 2020 election ballot (hereinafter “2020 Ballot Initiative”). (Id. at ¶ 20.) The 2020 Ballot

Initiative asked the public to vote on whether Medina could participate in the joint courthouse

project without further public vote. (Id. at ¶ 21.) Plaintiffs allege Medina utilized public resources

to oppose the 2020 Ballot Initiative petition drive as well as the 2020 Ballot Initiative itself, and,

throughout these oppositions, violated Plaintiffs’ constitutional rights. (Id. at ¶¶ 22-64.)

A. Conflict During the Petition Drive for the 2020 Ballot Initiative and Before the

November 2020 Election

Plaintiffs assert Medina began violating their constitutional rights during the petition drive to

include the 2020 Ballot Initiative on Medina’s November 2020 election ballot. Specifically, Jocke

alleges that he attempted to gather signatures during the petition drive from a public sidewalk, but

Medina police officers prevented him from doing so. (Id. at ¶ 60.) Medina’s public streets were

closed at the time for a Farmer’s Market. (Id. at ¶ 59.) According to Plaintiffs, despite Medina

police officers precluding Jocke from collecting signatures for the petition drive in a public space,

Medina had a table at the Farmer’s Market where Medina City Council members “urged people to

not sign the petition” for the 2020 Ballot Initiative. (Id. at ¶ 61.)

Despite this alleged opposition, the petition drive ultimately collected enough signatures to

include the 2020 Ballot Initiative on Medina’s November 2020 election ballot. (Id. at ¶ 20.)

Plaintiffs generally assert that upon the completion of the petition drive, Medina maintained its

table at the Farmer’s Market events, this time to distribute information against the 2020 Ballot

Initiative itself. (Id. at ¶ 61.) Walker claims that she requested a table at the Farmer’s Market events

to distribute information in favor of the 2020 Ballot Initiative, but this request was denied. (Id. at

¶ 62.)

In addition to the Farmer’s Market table, Plaintiffs claim Medina employed other tactics to

systematically oppose the 2020 Ballot Initiative. In October 2020, Medina “made the multipurpose

meeting room in Medina City Hall available for a Press Conference,” allegedly to publicly oppose

the 2020 Ballot Initiative. (Id. at ¶ 31.) Despite being informed that the press conference was not

open to the public, and while acknowledging “access to City Hall was limited due to Covid-19,”

Jocke entered Medina’s City Hall and attempted to participate in the press conference. (Id. at ¶¶

32, 34-37. See also Compl. Ex. 3, ECF No. 1-5.) Before he could participate, Medina’s Mayor

informed Jocke he could not attend the press conference and instructed a Medina police officer to

escort Jocke out of Medina’s City Hall. (Compl. ¶¶ 38-39, 120, ECF No. 1.)

Additionally, Medina has an access channel called “Medina TV,” which is staffed by Medina

employees and utilizes Medina property. (Id. at ¶¶ 26, 28.) Plaintiffs claim Medina TV played

videos of Medina’s Mayor and Medina’s City Council opposing the 2020 Ballot Initiative, so

Plaintiffs requested “equal time” to “present [their] view of the facts” of the 2020 Ballot Initiative

on Medina TV. (Id. at ¶¶ 26, 29-30. See also Compl. Ex. 1, ECF No. 1-3.) Medina TV denied

Plaintiffs’ request explaining that Medina TV broadcasts a government access channel where

government employees provide information to the public, which included instances where

Medina’s Mayor gave information about the 2020 Ballot Initiative. (Compl. ¶ 30, ECF No. 1. See

also Compl. Ex. 1, ECF No. 1-3.) Medina TV clarified it does not broadcast a public access

channel. (Compl. Ex. 1, ECF No. 1-3.)

Finally, Plaintiffs allege Medina, through trademark infringement, confused Medina voters

regarding the 2020 Ballot Initiative. (Compl. ¶ 90, ECF No. 1.) According to Plaintiffs, in opposing

the 2020 Ballot Initiative, Medina used the same colors and confusingly similar slogans as those

who supported the 2020 Ballot Initiative to confuse “voters into believing that [Medina’s]

campaign was being put on by the proponents” of the 2020 Ballot Initiative. (Id. at ¶¶ 90-93.)

Ultimately, the 2020 Ballot Initiative passed – given the wording of the measure, this meant

that Medina could not participate in the joint courthouse project without a majority of “qualified

electors” in Medina voting in favor of such participation. (Id. at ¶¶ 21, 63.) Plaintiffs allege that

despite the passing of the 2020 Ballot Initiative, Medina utilized city resources and spent taxpayer

money to continue the joint courthouse project without further public vote. (Id. at ¶¶ 65-77.)

B. Conflict After the November 2020 Election

In December 2020, Medina, through Medina City Council, generated a ballot initiative to place

on Medina’s May 2021 special election ballot (hereinafter “2021 Ballot Initiative”). (Id. at ¶¶ 80-

84.) The 2021 Ballot Initiative asked the public to vote on whether Medina could utilize public

funds and city resources for the joint courthouse project and required a majority of voters to

approve of Medina’s involvement in the joint courthouse project. (Id. at ¶¶ 85-86.) Plaintiffs assert

the 2021 Ballot Initiative was in violation of the 2020 Ballot Initiative which required a majority

of “qualified electors” to vote in favor of Medina participating in the joint courthouse project, not

just a simple majority of voters. (Id. at ¶¶ 86, 94.)

In January 2021, Plaintiffs filed a taxpayer complaint against Medina in Medina County Court

of Common Pleas alleging Medina violated several Medina City Ordinances, violated numerous

Ohio laws, and misapplied Medina city funds. (Id. at ¶ 95. See also Answer Ex. C, ECF No. 3-3.)

See also City of Medina, Ohio ex rel. Jocke v. City of Medina, Medina C.P. No. 21CIV0083,

Amended Complaint (Apr. 22, 2021). Plaintiffs sought a permanent injunction against Medina

such that it could not act according to the 2021 Ballot Initiative if passed. (Answer Ex. C at ¶¶

167-192, ECF No. 3-3.) See also City of Medina, Ohio ex rel. Jocke v. City of Medina, Medina

C.P. No. 21CIV0083, Amended Complaint at ¶¶ 167-192 (Apr. 22, 2021). Medina answered the

taxpayer complaint and counterclaimed seeking declaratory judgment that the 2020 Ballot

Initiative was: (1) unconstitutional; (2) violates municipal charters; and (3) impairs Medina’s

contract rights. (Compl. ¶¶ 96-97, ECF No 1. See also Answer Ex. D 14-21, ECF No. 3-4.) See

also City of Medina, Ohio ex rel. Jocke v. City of Medina, Medina C.P. No. 21CIV0083, Answer

& Counterclaim (May 6, 2021). Plaintiffs claim Medina’s counterclaims seeking declaratory

judgment were brought in retaliation for Plaintiffs’ speech against the joint courthouse project and

forced “three individual citizens to incur the expense and cost to prove the validity” of the 2020

Ballot Initiative while “seeking to impose personal liability on Plaintiffs for the passage” of the

2020 Ballot Initiative. (Compl. ¶ 98, ECF No. 1.) Plaintiffs also assert that within numerous

lawsuits between Plaintiffs and Medina heard before Ohio state court venues, Medina made

inconsistent statements leading to the improper dismissal of many of Plaintiffs’ state law claims.

(Id. at ¶¶ 100-118.)

Finally, with respect to the 2021 Ballot Initiative and public vote, Plaintiffs allege Medina,

through trademark infringement, confused Medina voters regarding the 2021 Ballot Initiative. (Id.

at ¶ 90.) According to Plaintiffs, Medina used the same colors and confusingly similar slogans as

those who opposed the 2021 Ballot Initiative to confuse “voters into believing that [Medina’s]

campaign was being put on by the . . . opponents” of the 2021 Ballot Initiative. (Id. at ¶¶ 90-93.)

Ultimately, the 2021 Ballot Initiative passed – this meant that Medina could participate in the joint

courthouse project. (Id. at ¶¶ 85, 94.)

In sum, Plaintiffs claim Medina’s various activities, done in opposition of Plaintiffs’ campaign

against Medina’s involvement in the joint courthouse project, violated Plaintiffs’ First Amendment

rights of freedom of speech, freedom of assembly, and freedom of association, Fourteenth

Amendment equal protection and due process rights, and Fifth Amendment due process rights. (Id.

at ¶¶ 119-197.) Medina denies these claims. (See generally Answer, ECF No. 3.) After the

pleadings closed, Plaintiffs and Medina each filed a motion for judgment on the pleadings. (See

Pls.’ Mot. for J. on the Pleadings, ECF No. 16; Def.’s Mot. for J. on the Pleadings, ECF No. 15.)

The issues are fully briefed and ripe for this Court’s review. (See Opp’n to Pls.’ Mot. for J. on the

Pleadings, ECF No. 17; Reply in Supp. of Pls.’ Mot. for J. on the Pleadings, ECF No. 22; Opp’n

to Def.’s Mot. for J. on the Pleadings, ECF No. 20; Reply in Supp. of Def.’s Mot. for J. on the

Pleadings, ECF No. 21.)

II. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter the pleadings are closed – but early

enough not to delay trial – a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c).

A motion brought pursuant to Fed. R. Civ. P. 12(c) is reviewed under the same standard as a Fed.

R. Civ. P. 12(b)(6) motion to dismiss. Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6th

Cir. 2001) (citing Mixon v. Ohio, 193 F.3d 389, 399-400 (6th Cir. 1999)). Therefore, “[t]o survive

a Rule 12(c) motion, the complaint must contain sufficient factual matter, accepted as true, to state

a claim to relief that is plausible on its face.” Engler v. Arnold, 862 F.3d 571, 575 (6th Cir. 2017)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks omitted).

This Court does not need “detailed factual allegations,” but for factual matter to be sufficient

it must be “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556

U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Pleadings offering

either “labels and conclusions or a formulaic recitation of the elements of a cause of action,” or

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements,” or even “naked assertion[s] devoid of further factual enhancement” will not suffice.

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557) (internal quotation marks omitted).

Although “legal conclusions can provide the framework of a complaint, they must be supported

by factual allegations” as this Court is “’not bound to accept as true a legal conclusion couched as

a factual allegation.’” Iqbal, 556 U.S. at 678-79 (quoting Twombly, 550 U.S. at 555).

In addition to factual matter needing to be sufficient, it also must be plausible, such that this

Court can “draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Iqbal, 556 U.S. at 678. Plausibility and probability are not the same, however. Id. Rather,

plausibility “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

(citing Twombly, 550 U.S. at 556). The determination of whether a complaint states plausible

claims for relief typically requires “the reviewing court to draw on its judicial experience and

common sense” unless “the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct.” Iqbal, 556 U.S. at 679.

Finally, “[f]or 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) (quoting S. Ohio Bank v. Merrill Lynch,

Pierce, Fenner & Smith, Inc., 479 F.2d 478, 480 (6th Cir. 1973)) (internal quotation marks

omitted). In sum, “[w]hen ruling on a defendant’s motion to dismiss on the pleadings, a district

court must construe the complaint in the light most favorable to the plaintiff, accept all of the

complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove

no set of facts in support of his claim that would entitle him to relief.” Engler, 862 F.3d at 574-75

(internal citations and quotation marks omitted).

Finally, Federal Rule of Civil Procedure 12(c) requires this Court to convert a motion for

judgment on the pleadings to a motion for summary judgment “where matters outside the pleadings

are presented to and not excluded by the court.” Clark v. Stone, 998 F.3d 287, 296 (6th Cir. 2021).

However, this Court may “consider documents that are attached to the pleadings, as well as public

records, matters in the record of the case, and exhibits attached to the motion so long as they are

‘referred to in the complaint and are central to the claims contained therein’” without converting

the motion for judgment on the pleadings to a motion for summary judgment. Whirlpool Corp. v.

Equity Mgmt., Inc., No. 20-2062, 2021 U.S. App. LEXIS 33032, at *6 (6th Cir. Nov. 4, 2021)

(quoting Clark, 998 F.3d at 296). This Court has only considered the pleadings, exhibits attached

to the pleadings, and the public records of Ohio state court cases between Plaintiffs and Medina,

as evidenced by the citations provided supra. The currently pending motions, therefore, are not

converted to motions for summary judgment and will be analyzed under the above enumerated

standard for motions for judgment on the pleadings.

III. DISCUSSION

All of Plaintiffs’ claims are brought against Medina alone. Therefore, the following limitations

on claims against municipalities for deprivation of constitutional rights apply. Pursuant to 42

U.S.C. § 1983, any “person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to

the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law . . ..” Municipalities and other local government

bodies are considered “persons” for the purposes of § 1983, such that local governments may be

liable for depriving, under color of law, individuals of their constitutional rights. Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 690 (1978). A municipality, however, “cannot be held liable under §

1983 on a respondeat superior theory.” Id. at 691. In other words, a municipality is not liable under

§ 1983 “solely because it employs a tortfeasor.” Id. Bluntly, “under § 1983, local governments are

responsible only for their own illegal acts. . . . They are not vicariously liable under § 1983 for

their employees’ actions.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (emphasis in original)

(internal citations and quotation marks omitted).

Instead, municipalities are “liable under § 1983 only if the challenged conduct occurs pursuant

to a municipality’s ‘official policy,’ such that the municipality’s promulgation or adoption of the

policy can be said to have ‘cause[d]’ one of its employees to violate the plaintiff’s constitutional

rights.” D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014) (quoting Monell, 436 U.S. at

692). “Official municipal policy includes the decisions of a government’s lawmakers, the acts of

its policymaking officials, and practices so persistent and widespread as to practically have the

force of law.” Connick, 563 U.S. at 61. Accordingly, a properly alleged municipal liability claim

of deprivation of constitutional rights alleges “(1) the existence of an illegal official policy or

legislative enactment; (2) that an official with final decision making authority ratified illegal

actions; (3) the existence of a policy of inadequate training or supervision; or (4) the existence of

a custom of tolerance [of] or acquiescence [to] federal rights violations.” D’Ambrosio, 747 F.3d at

387 (quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (internal quotation marks

omitted). Given this legal framework, many of Plaintiffs’ claims fail at the outset.

Plaintiffs’ second claim for relief argues that Medina violated Plaintiffs’ constitutional rights

when Plaintiffs were precluded from gathering petition signatures or distributing political material

in public spaces, like sidewalks and streets during Farmer’s Market events, despite Medina

officials distributing information in the public space Plaintiffs were excluded from. (Compl. ¶¶

128-134, ECF No. 1.) Even with this Court assuming the veracity of all factual material contained

in the complaint and viewing the complaint in the light most favorable to Plaintiffs, the complaint

fails to provide any well-pled factual allegations indicating this alleged preclusion was

accomplished according to an official policy or legislative enactment, was ratified by anyone with

decision making authority, occurred because the officer who allegedly precluded them was

inadequately trained, or was the result of custom in Medina to tolerate constitutional rights

violations. Without any well-pled facts connecting Medina itself to the alleged constitutional rights

violations that occurred at the Farmer’s Market events, Plaintiffs’ claims are not plausible.

Plaintiffs’ fifth, sixth, seventh, eighth, and ninth claims assert Medina violated Plaintiffs’

constitutional rights when: 1) Medina sought to determine the constitutionality of the 2020 Ballot

Initiative in an Ohio state court action; 2) Medina continued to utilize public resources for the joint

courthouse project despite the 2020 Ballot Initiative passing; 3) Medina failed to take action

against itself for allegedly violating the 2020 Ballot Initiative; 4) Medina made allegedly false

statements in Ohio state court cases; and 5) Medina “used infringing slogans and trade dress” in

campaigns opposing the 2020 Ballot Initiative and supporting of the 2021 Ballot Initiative to

confuse voters. (Id. at ¶¶ 154-197.)

The overarching problem with each of these claims is the Plaintiffs do not actually build a

bridge constructed of logic and reason between any of these actions by Medina and Plaintiffs’

constitutional rights. Besides generally naming constitutional rights, reciting the elements of 42

U.S.C. § 1983, and declaring which of Medina’s actions Plaintiffs did not like, there is no clear

connection between Medina and a deprivation of constitutional rights. Plaintiffs do not allege

anywhere in their complaint, and this Court cannot reasonably infer, that any illegal policies exist

within Medina generally, let alone policies that would lend to these specified instances of alleged

deprivation of constitutional rights; that ratification of an illegal activity occurred by an official

with decision making power; that Medina failed to adequately train anyone; or that Medina

engages in tolerating constitutional violations customarily. Even with this Court assuming the

veracity of all factual material contained in the complaint, without any facts connecting Medina’s

alleged activities directly to Plaintiffs’ constitutional rights utilizing the legal requirements of

Monell for municipalities accused of violating individual constitutional rights, Plaintiffs’ claims

are not plausible. These claims read more as unadorned Medina-unlawfully-harmed-us allegations

and naked assertions devoid of support, neither of which this Court must accept as true.

For these reasons, Plaintiffs have failed to provide sufficient factual matter to state plausible

claims for relief as to counts two, five, six, seven, eight, and nine of their complaint. Although

Plaintiffs have extensively detailed their grievances with respect to Medina, Plaintiffs can,

undoubtedly, prove no set of facts that would entitle them to relief as to these claims.1

In their first claim for relief, Plaintiffs allege Medina’s excluding Jocke from the “public

meeting” at Medina’s City Hall where “[m]embers of the public,” government officials and

employees of both Medina and Medina County, and members of the press attended violated his

First Amendment right to freedom of speech, his First Amendment right to assemble, and his

Fourteenth Amendment equal protection rights. (Id. at ¶¶ 119-127.)2 For their third claim for relief,

Plaintiffs assert that their First Amendment right to freedom of speech and Fourteenth Amendment

equal protection rights were violated when Plaintiffs were prevented from presenting information

and “opposing views on broadcasts by Medina TV” on Medina TV. (Id. at ¶¶ 135-145.) Finally,

in their fourth claim for relief, Plaintiffs alleges Medina violated their First Amendment rights of

freedom of speech and freedom of association as well as Fourteenth Amendment equal protection

rights by prosecuting Plaintiffs due to political action. (Id. at ¶¶ 146-153.) In this claim, Plaintiffs

allege that because Plaintiffs publicly criticized Medina, Medina filed a counterclaim against them

individually in a taxpayer lawsuit resulting in a “chilling effect on the Plaintiffs’ First Amendment

rights.” (Id. at ¶ 148.)

Once again, with respect to these claims, besides generally naming constitutional rights and

reciting the elements of 42 U.S.C. § 1983, Plaintiffs did not clearly connect Medina to a deprivation

1 Medina also argues that counts five, six, seven, and eight should be dismissed for lack of standing. (Def.’s Mot. for

J. on the Pleadings 17-19, ECF No. 15.) Although this Court has doubts regarding Plaintiffs’ standing to bring these

claims, this Court declines to analyze standing given the claims’ failure under the Monell standard.

2 In the body of the complaint, Jocke generally alleges he was deprived “of his liberty under the Fifth Amendment of

the U.S. Constitution” when he was forcibly removed from the “public meeting” and Medina’s excluding him was

done in retaliation for his “prior exercise of his freedom of speech and freedom of association under the First

Amendment of the U.S. Constitution.” (Compl. ¶¶ 41-42, ECF No. 1.) However, because Jocke did not actually assert

claims to this effect when pleading the legal claims of the complaint, this Court will not analyze these conclusory

statements regarding First Amendment retaliation or Fifth Amendment rights violations.

of constitutional rights. Plaintiffs do not allege anywhere in their complaint that any illegal policies

exist within Medina generally, let alone policies that would lend to these specified instances of

alleged deprivation of constitutional rights; that any official with final decision making authority

ratified illegal actions; that Medina failed to adequately train anyone; or that Medina engages in

tolerating constitutional violations customarily.

However, if this Court were to extend all possible latitudes to Plaintiffs and construe the

complaint to suggest that an official with final decision making power – Medina’s Mayor – ratified

an illegal action when Jocke was escorted out of the press conference or when Medina filed a

counterclaim in the taxpayer action, and that an illegal policy exists or Medina custom allows for

the deprivation of constitutional rights when the public is precluded from presenting content on

Medina TV, the law is clear: “[t]here can be no liability under Monell without an underlying

constitutional violation.” Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014). Therefore, the

question is whether Plaintiffs have provided enough well-pled factual material such that it is

plausible that Plaintiffs’ First and Fourteenth Amendment rights were violated when Jocke was

escorted out of Medina City Hall, when Plaintiffs were prohibited from airing information on

Medina TV, and when Medina filed a counterclaim in a taxpayer action.

A. First Amendment Freedom of Speech and Right to Assemble

The First Amendment of the Constitution of the United States provides that “Congress shall

make no law . . . abridging the freedom of speech, . . . or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances.” U.S. Const. Amend. I. At

the outset, this Court affirms that “implicit in the right to engage in activities protected by the First

Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of

political, social, economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468

U.S. 609, 622 (1984). In other words, “[t]he right of peaceable assembly is a right cognate to those

of free speech and free press and is equally fundamental.” De Jonge v. Oregon, 299 U.S. 353, 364

(1937). Because freedom of speech and the right to peaceably assemble are inextricably joined,

this Court will analyze them together, as our sister courts have before. See Ramsek v. Beshear, 468

F. Supp. 3d 904, 914-15 (E.D. Ky. 2020) (“Although the First Amendment protects several

categories of rights, it is often difficult in practice to determine where one right ends and the next

begins. This is particularly true with freedom of speech and freedom of assembly . . . Consequently,

Courts typically evaluate free speech, assembly and petition claims under the same analysis.”)

(citing cases); Intervarsity Christian Fellowship/USA v. Bd. of Governors of Wayne State Univ.,

534 F. Supp. 3d 785, 826 (E.D. Mich. 2021) (explaining a “close nexus between First Amendment

rights is justified” because “[i]n order to effectively express a message or associate with others,

individuals must in some way assemble”).

Turning, then, to the First Amendment freedom of speech, and associated right to assemble:

“The hallmark of the protection of free speech is to allow free trade in ideas – even ideas that the

overwhelming majority of people might find distasteful or discomforting.” Virginia v. Black, 538

U.S. 343, 358 (2003) (internal citations and quotation marks omitted). First Amendment

protections, however, “are not absolute” and “the government may regulate certain categories of

expression consistent with the Constitution.” Id. On the one hand “the government does not have

a free hand to regulate private speech on government property.” Pleasant Grove City v. Summum,

555 U.S. 460, 469 (2009). But on the other hand, “[s]imply because the government may own a

piece of property, . . . does not mean that property is open to all types of expressive activity at all

times.” Miller v. City of Cincinnati, 622 F.3d 524, 533 (6th Cir. 2010).

To determine whether Medina violated Plaintiffs’ First Amendment freedom of speech and

right to assemble, this Court must engage in a three-step analysis: (1) determine whether Plaintiffs’

speech is protected under the First Amendment; (2) if so, determine what type of forum is at issue

and which constitutional standard to apply; and (3) determine “whether the government’s

prohibition on speech passes muster under the First Amendment.” S.H.A.R.K. v. Metro Parks

Serving Summit County, 499 F.3d 553, 559 (6th Cir. 2007). The question before this Court is not

whether Plaintiffs’ speech is protected by the First Amendment, but rather what fora a press

conference at Medina City Hall and Medina TV are and whether Medina’s restrictions of

Plaintiffs’ speech, as pled by Plaintiffs, violated the constitutional standard for each forum.

There are three types of public fora: (1) traditional public forum; (2) designated public forum;

and (3) limited public forum. Miller, 622 F.3d at 534 (citing Summum, 555 U.S. at 469-70).

Traditional public fora are those locations “by ’tradition or by government fiat’ are open to public

assembly and debate,” such as sidewalks and parks. Miller, 622 F.3d at 534 (quoting Helms v.

Zubaty, 495 F.3d 252, 255 (6th Cir. 2007)). For traditional public fora, the government may

exclude speech “only when the exclusion is necessary to serve a compelling state interest and the

exclusion is narrowly drawn to achieve that interest.” Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc., 473 U.S. 788, 800 (1985). “Reasonable time, place, and manner restrictions are

allowed” but “restrictions based on viewpoint are prohibited.” Summum, 555 U.S. 460 at 469.

Designated public fora occur when the government “opens a piece of public property to the

public at large, treating as if it were a traditional public forum.” Miller, 622 F.3d at 534.

“Government restrictions on speech in a designated public forum are subject to the same strict

scrutiny as restrictions in a traditional public forum.” Summum, 555 U.S. 460 at 469-70.

Limited public fora may be created by the government for limited use “by certain groups or

dedicated solely to the discussion of certain subjects.” Id. at 470. In limited public fora, the

government “may impose restrictions on speech that are reasonable and viewpoint-neutral.” Id.

See also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (“The restriction must not

discriminate against speech on the basis of viewpoint, . . . and the restriction must be reasonable

in light of the purposes served by the forum.”).

Finally, a nonpublic forum is a government-owned property “that is not by tradition or

governmental designation ‘a forum for public communication.’” Miller, 622 F.3d at 535 (quoting

Helms, 495 F.3d at 256). In nonpublic fora, the government may limit speech “based on subject

matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose

served by the forum and are viewpoint neutral.” Helms, 495 F.3d at 256.

This Court will analyze the press conference at Medina City Hall and Medina TV under this

framework.

1. Press Conference

The press conference at Medina City Hall was akin to a City Council meeting. The Sixth

Circuit Court of Appeals has held that City Council meetings are not a “traditional public for[um]

like parks and streets” where “the government’s regulatory powers are at their weakest.”

Youkhanna v. City of Sterling Heights, 934 F.3d 508, 518-19 (6th Cir. 2019) (quoting Lowery v.

Jefferson Cty. Bd. of Educ., 586 F.3d 427, 432 (6th Cir. 2009)) (internal quotation marks omitted).

City Council meetings, instead, are “designated” and “limited” public fora: “’designated’ because

the government has ‘intentionally open[ed]’ it ‘for public discourse,’ and ‘limited’ because ‘the

State is not required to . . . allow persons to engage in every type of speech’ in the forum.”

Youkhanna, 934 F.3d at 519 (quoting Lowery 586 F.3d at 432).

In this instance, the press conference was not actually designated, because it was not open for

public discourse, as a City Council meeting typically is. In fact, Medina informed Plaintiffs the

press conference, although conducted for the discussion of public business, was not a public

meeting, pursuant to Ohio Revised Code and Medina’s Codified Ordinances, such that the public

was invited to attend by law given only Medina’s Mayor and Medina’s County Commissioner

attended – no public body of Medina conducted the press conference. (See Compl. Ex. 3, ECF No.

1-5.) See Medina Codified Ordinances III-13 (“All meetings of Council, all meetings of

Commissions and all other groups acting on a City matter shall be regulated in accordance with

the Ohio Open Meeting Law) and R.C. 121.22 (“’Meeting’ means any prearranged discussion of

the public business of the public body by a majority of its members” while “public body” means

boards, commissions, committees, council, or “similar decision-making body of any . . . municipal

corporation” and “[a]ll meetings of any public body are declared to be public meetings open to the

public at all times”). Therefore, the press conference can, at best, be a limited public forum – one

which the government created for a dedicated purpose. Any restriction of public speech in that

forum must have been reasonable in light of the purpose of the forum and viewpoint neutral.

The press conference was a designated slice of time whereby the government presented

information directly to the press. Because it was nothing more – not a public meeting such that the

public was invited to attend by law – restricting attendees to members of the press, rather than the

public at large, was reasonable given the limited purpose of the forum.3

Additionally, Medina’s restriction of public speech at the press conference is unquestionably

viewpoint neutral in that the entire public was precluded from attending. (See Compl. Ex. 3 at 2,

3 This Court will briefly note that restricting attendees of the press conference for the continuation of public health

and safety measures given the Covid-19 pandemic served a compelling governmental interest at the ceiling and was

objectively reasonable at the floor, meeting both the strict scrutiny standard for designated public fora as well as the

reasonableness standard for limited public fora.

ECF No. 1-5 (“The only invitees are local media representatives”).) Neither supporters nor

opponents of the joint courthouse project from the public attended. Neither supporters nor

opponents of the 2020 Ballot Initiative from the public attended. Of note, Plaintiffs attempt to

cloud this conclusion with statements such as “[t]he public had been invited to a press conference”

and “[m]embers of the public along with elected officials” of Medina and Medina County attended

the press conference, likely to suggest Jocke personally was excluded from the press conference

simply because of his viewpoint. (Compl. ¶¶ 121-122, ECF No. 1.) These statements, however,

are nothing more than the “naked assertions devoid of further factual enhancement” this Court

need not accept as true, especially when evidence Plaintiffs provided attached to their complaint

contradict these assertions. This half-hearted attempt to provide life support to a dying claim fails

at resuscitation.

In sum, this Court, in viewing the complaint in the light most favorable to Plaintiffs, drawing

all inferences in favor of the Plaintiffs, and accepting all well-pled factual material as true, finds

that the press conference at Medina’s City Hall was a limited public forum and, in conjunction

with this conclusion, finds that restrictions upon public speech at the press conference were

viewpoint neutral and reasonable given the purpose of the forum. Therefore, even if Plaintiffs

could prove that an official with final decision-making authority ratified removing Jocke from the

press conference such that Medina could be liable for violating Jocke’s First Amendment freedom

of speech and right to assemble, Plaintiffs have not provided well-pled factual material such that

it is plausible Medina actually violated Jocke’s First Amendment rights when he was escorted out

of City Hall and precluded from attending the press conference. Without a plausible constitutional

violation, Plaintiffs’ claim that Medina violated First Amendment rights when Jocke was escorted

from the press conference fails.

2. Medina TV

Upon assuming the veracity of the factual material pled by Plaintiffs, Medina TV also can only

be classified as a limited public forum. Medina TV itself explained to Plaintiffs, in writing, that

the channel is a government access channel whereby government officials provide information to

the public and government proceedings are broadcast. (See Compl. Ex. 1, ECF No. 1-3.) In certain

instances, political candidates provide information on the channel regarding why they are running

for office. (Id.) However, Medina TV is not a public access channel and is not a forum open to

public comment. (Id.) Assuming Medina TV was created by the government, its use was dedicated

solely to the discussion of certain topics – the broadcast of government business. Because Medina

TV is clearly a limited public forum, any restriction of public speech in that forum must have been

reasonable in light of the purpose of the forum and viewpoint neutral.

Medina TV’s designated purpose is broadcasting government information and government

proceedings to the public. Restricting all members of the public, regardless of viewpoint, from

broadcasting material on Medina TV prevents a potential unfettered onslaught of widely varied

material, some of which would likely be irrelevant to Medina’s business. This restriction is

reasonable given the limited purpose of Medina TV. Furthermore, the restriction of speech

broadcast on Medina TV is indisputably viewpoint neutral as no member of the public is invited

to broadcast information on Medina TV. Neither supporters nor opponents of the joint courthouse

project from the public broadcast information on Medina TV. Neither supporters nor opponents of

the 2020 Ballot Initiative from the public broadcast information on Medina TV.

In viewing the complaint in the light most favorable to Plaintiffs, drawing all inferences in

favor of the Plaintiffs, and accepting all well-pled factual material as true, this Court finds that

Medina TV is a limited public forum and, in conjunction with this conclusion, finds that

restrictions upon public speech broadcast through Medina TV were viewpoint neutral and

reasonable given the purpose of the forum. Therefore, even if Plaintiffs could prove that an illegal

policy exists or Medina custom allows for the deprivation of constitutional rights when the public

is precluded from broadcasting information on Medina TV, Plaintiffs have not provided well-pled

factual material such that it is plausible Medina actually violated Plaintiffs’ First Amendment

freedom of speech and right to assemble when they were precluded from broadcasting information

over Medina TV. Without a plausible constitutional violation, Plaintiffs’ claim that Medina

violated First Amendment rights when Plaintiffs were precluded from broadcasting information

on Medina TV fails.

B. First Amendment Retaliation

Turning now to Plaintiffs’ claim that their First Amendment rights were violated when Medina

filed a counterclaim in a taxpayer action. Although inartfully pled, this Court infers that Plaintiffs’

claim is one of First Amendment retaliation given the allegation that Medina’s “counterclaim in

the taxpayer lawsuit . . . was brought against Plaintiffs personally as retaliation” for publicly

opposing the joint courthouse project resulting in “a chilling effect on the Plaintiffs’ First

Amendment rights.” (Compl. ¶ 148, ECF No. 1.) To prove a First Amendment retaliation claim,

Plaintiffs must have pled sufficient facts to establish that “1) the plaintiff[s] engaged in

constitutionally protected conduct; 2) an adverse action was taken against the plaintiff[s] that

would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) the

adverse action was motivated at least in part by the plaintiff[s’] protected conduct.” Handy-Clay

v. City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012) (quoting Fritz v. Charter Twp. of Comstock,

592 F.3d 718, 723 (6th Cir. 2010)) (internal quotation marks omitted). Even without this Court

addressing the inherent issues in Plaintiffs’ suggestion that counterclaims to a lawsuit Plaintiffs

themselves filed chills speech, Plaintiffs have not provided well-pled factual material such that it

is plausible Medina’s filing of a counterclaim was motivated, at least in part, by Plaintiffs’ prior

speech.

First, Ohio Rule of Civil Procedure 13(A) requires a responsive pleading to “state as a

counterclaim any claim which at the time of serving the pleading the pleader has against any

opposing party, if it arises out of the transaction or occurrence that is the subject matter of the

opposing party’s claim . . ..” Civ.R. 13(A). The subject matter of Plaintiffs’ taxpayer lawsuit

against Medina, in the broadest sense, is the joint courthouse project. (See Answer Ex. C, ECF No.

3-3.) See also City of Medina, Ohio ex rel. Jocke v. City of Medina, Medina C.P. No. 21CIV0083,

Amended Complaint (Apr. 22, 2021). In the taxpayer lawsuit, Plaintiffs discuss the 2020 Ballot

Initiative at length and take issue with Medina’s activities since its passing while also seeking a

permanent injunction such that Medina would be precluded from acting according to the 2021

Ballot Initiative, if passed. See id. Medina’s counterclaim seeks declaratory judgment that the 2020

Ballot Initiative is invalid under the Constitution of Ohio. (Answer Ex. D 14-21, ECF No. 3-4.)

See also City of Medina, Ohio ex rel. Jocke v. City of Medina, Medina C.P. No. 21CIV0083,

Answer & Counterclaim (May 6, 2021). Medina’s counterclaim was necessarily a compulsory

counterclaim to Plaintiffs’ taxpayer lawsuit – the 2020 Ballot Initiative is one of the transactions

or occurrences that is the subject matter of Plaintiffs’ taxpayer complaint, as well as Medina’s

counterclaim. Plaintiffs opened the door and invited Medina in. Objectively, Medina filing the

declaratory judgment counterclaim was not motivated by Plaintiffs’ prior speech but was

motivated by the law. Plaintiffs have not provided any well-pled facts to the contrary.

Second, Plaintiffs make much ado about Medina seeking fees and costs against them

individually as the bedrock of their claim that Medina’s counterclaim is direct retaliation. (See

Pls.’ Mot. for J. on the Pleadings 2, ECF No. 16; Mem. in Supp. of Pls.’ Mot. for J. on the Pleadings

2, 7, 9, 11-13, ECF No. 16-1; Reply in Supp. of Pls.’ Mot. for J. on the Pleadings 6-10, 19, ECF

No. 22.) Medina, however, did not counterclaim against Plaintiffs in tort or breach of contract

seeking damages. Medina’s counterclaim was one for declaratory judgment. (Answer Ex. D 14-

21, ECF No. 3-4.) See also City of Medina, Ohio ex rel. Jocke v. City of Medina, Medina C.P. No.

21CIV0083, Answer & Counterclaim (May 6, 2021). “A declaratory judgment action provides a

means by which parties can eliminate uncertainty regarding their legal rights and obligations.”

Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142,

¶ 8 (citing Travelers Indemn. Co. v. Cochrane, 155 Ohio St. 305, 312, 98 N.E.2d 840 (1951)).

“The purpose of a declaratory judgment action is to dispose of ‘uncertain or disputed obligations

quickly and conclusively . . ..’” Heasley at ¶ 8 (quoting Ohio Farmers Indemn. Co. v. Chames, 170

Ohio St. 209, 213, 163 N.E.2d 367 (1959)). While declaratory judgment actions in Ohio may result

in monetary awards (see Jeppe v. Blue Cross of Northeast Ohio, 67 Ohio App.2d 87, 92, 425

N.E.2d 947 (1980) (“[w]hile there is no express statutory provision for the granting of a money

judgment in a declaratory judgment action, such relief may be granted so long as it is prayed for

and warranted by the proof”)), the weight of Medina’s counterclaim seeks court declaration on the

constitutionality of the 2020 Ballot Initiative under Ohio law. Medina’s request for a monetary

award, incidental to the underlying purpose of the counterclaim, does not carry the heavy weight

Plaintiffs suggest it does.

Plaintiffs filed a motion for judgment on the pleadings asking this Court to enter judgment that

Medina violated their constitutional rights in filing the counterclaim against them in the taxpayer

action. For the reasons articulated above, this Court cannot provide Plaintiffs with the judgment

they request. This Court finds it particularly troubling that Plaintiffs’ filings before this Court

spend a great deal of effort explaining why the 2020 Ballot Initiative is valid under Ohio law and,

conversely, why Medina’s counterclaim for declaratory judgment is legally improper under Ohio

law. (Mem. in Supp. of Pls.’ Mot. for. J on the Pleadings, ECF No. 16-1; Reply in Supp. of Pls.’

Mot. for J. on the Pleadings ECF No. 22.) These are state law issues for a court sitting under the

law of Ohio to determine.

It is this Court’s task to determine whether it is plausible Medina violated Plaintiffs’

fundamental rights under the Constitution of the United States. With respect to this issue, Plaintiffs

do very little to support their claim. In their materials, Plaintiffs neither cite the legal support for

their claim of First Amendment retaliation nor tie factual allegations of their complaint, rather than

conclusory statements, to the legal elements of their claim as a demonstration that their complaint

pleads a plausible claim of constitutional magnitude against Medina. (See Mem. in Supp. of Pls.’

Mot. for. J on the Pleadings, ECF No. 16-1; Reply in Supp. of Pls.’ Mot. for J. on the Pleadings

ECF No. 22.) Given this failure, and in thorough review of the complaint, this Court cannot find

that Plaintiffs have provided well-pled factual allegations such that it is plausible Medina retaliated

against Plaintiffs for engaging in speech protected by the First Amendment when it filed a

counterclaim for declaratory judgment in a taxpayer action Plaintiffs initiated. Because Plaintiffs

have not plausibly pled an underlying constitutional violation, Plaintiffs’ fourth claim for relief

against Medina, with respect to violations of First Amendment rights, fails.

C. Fourteenth Amendment Equal Protection Right

The Fourteenth Amendment Equal Protection Clause of the Constitution of the United States

provides that no state shall “deny to any person within its jurisdiction the equal protection of the

laws.” U.S. Const. Amend. XIV § 1. “The Clause embodies the principle that all persons similarly

situated should be treated alike.” Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th

Cir. 2006). “The threshold element of an equal protection claim is disparate treatment . . ..” Id.

“To state an equal protection claim, a plaintiff must adequately plead that the government treated

the plaintiff disparately as compared to similarly situated persons and that such disparate treatment

either burdens a fundamental right, targets a suspect class, or has no rational basis.” Ctr. for Bio-

Ethical Reform, Inc. v. Napolitano, 548 F.3d 365, 379 (6th Cir. 2011).

Although Plaintiffs claim they were treated disparately as compared to similarly situated

individuals when they were prevented from attending the press conference at Medina’s City Hall

or when they were precluded form broadcasting material on Medina TV or when Medina filed the

declaratory judgment counterclaim in the taxpayer action, Plaintiffs do not provide well-pled

factual material to indicate they were treated differently than any other individual member of the

public. “When evaluating whether parties are similarly situated, ‘courts should not demand exact

correlation, but should instead seek relevant similarity.’” EJS Props., LLC v. City of Toledo, 698

F.3d 845, 865 (6th Cir. 2012) (quoting Perry v. McGinnis, 209 F.3d 597, 601 (6th Cir. 2000)). No

other individual member of the public was permitted to attend the press conference at Medina’s

City Hall. No other individual member of the public was permitted to broadcast material on Medina

TV. Plaintiffs do not point to any other taxpayer lawsuit with the 2020 Ballot Initiative at issue

where Medina did not assert a counterclaim. Plaintiffs have not otherwise identified any similarly

situated member of the public who Medina treated differently than Plaintiffs. Without this

showing, Plaintiffs’ equal protection claims fail at the outset without further analysis.

In viewing the complaint in the light most favorable to Plaintiffs, drawing all inferences in

favor of the Plaintiffs, and accepting all well-pled factual material as true, this Court finds that

even if Plaintiffs could prove that an official with final decision-making authority ratified

removing Jocke from the press conference at Medina’s City Hall, or that Medina custom allows

for the deprivation of constitutional rights when the public is precluded from presenting content

on Medina TV or when Medina filed a counterclaim in the taxpayer action, Plaintiffs have not

provided well-pled factual material such that it is plausible Medina actually violated Plaintiffs’

Fourteenth Amendment Equal Protection rights. Without plausible constitutional violations,

Plaintiffs’ claims that Medina violated their Fourteenth Amendment Equal Protection rights fail.

D. Amending Pleadings

In their opposition to Medina’s motion for judgment on the pleadings, Plaintiffs “request leave

to amend their Complaint if the Court finds that any of the causes of action are not adequately

pled.” (Opp’n to Def.’s Mot. for J. on the Pleadings 10, ECF No. 20.) Although leave to amend

should be freely given when “justice so requires,” Fed. R. Civ. P. 15(a)(2), “[a] request for leave

to amend ‘almost as an aside, to the district court in a memorandum in opposition to the defendant’s

motion to dismiss is . . . not a motion to amend.’” La. Sch. Emp. Ret. Sys. V. Ernst & Young, LLP,

622 F.3d 471, 486 (6th Cir. 2010) (quoting Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776,

784 (6th Cir. 2000)). The request is one sentence devoid of legal support. Plaintiffs have not given

this Court any further information regarding amendment. Plaintiffs are not granted leave to amend

their complaint.

IV. CONCLUSION

It is clear to this Court that tension exists between Plaintiffs and Medina. Plaintiffs do not want

Medina to participate in the joint courthouse project, while Medina wishes to do so. There is no

question that both parties have presumed the motivation of specific actions of the opposing party.

This Court is objective, however. In painstakingly reviewing every pleading, brief, and attached

exhibit, providing every reasonable inference in Plaintiffs’ favor, assuming the veracity of every

well-pled factual allegation, and viewing everything in the light most favorable to Plaintiffs, this

Court cannot conclude that Plaintiffs have met the requisite burden for this Court to either deny

Medina’s motion for judgment on the pleadings or grant Plaintiffs’ motion for judgment on the

pleadings. Plaintiffs have not provided well-pled factual allegations such that it is plausible Medina

violated any of Plaintiffs’ constitutional rights as pled.

Both Plaintiffs and Medina have provided enough information to this Court for this Court to

confidently reach this conclusion within the legal standards by which it must abide. There is no

just reason for this matter to continue. Medina’s motion for judgment on the pleadings is

GRANTED in full. Plaintiffs’ motion for judgment on the pleadings is DENIED. This matter is

hereby dismissed, in its entirety, with prejudice.

IT IS SO ORDERED.

DATE: October 13, 2022 /s/ John R. Adams

Judge John R. Adams

UNITED STATES DISTRICT COURT