The opinion
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICKY MORRISON, )
)
) CASE NO. 4:22CV2314
Plaintiff, )
)
v. ) JUDGE BENITA Y. PEARSON
)
MAHONING COUNTY, OHIO, et al, )
) MEMORANDUM OF OPINION AND
) ORDER
Defendants. ) [Resolving ECF No. 18]
Pending before the Court is Defendant Gina DeGenova’s Motion for Judgment on the
Pleadings (ECF No. 18). Plaintiff Ricky Morrison filed a brief in opposition. See ECF No. 22.
Defendant DeGenova replied. See ECF No. 27. Having reviewed the parties’ submissions, and
applicable law, the Court grants Defendant DeGenova’s Motion for Judgment on the Pleadings.1
I. Background
On December 30, 2022, Plaintiff Ricky Morrison filed a first amended complaint
asserting twelve claims. On November 28, 2022, while employed by Mahoning County,
Plaintiff attended an Elections Board meeting and spoke with Gino DiFabio, Defendant
Commissioner Carol Rimedio-Righetti’s challenger. Plaintiff alleges that Defendants Rimedio-
Righetti, Anthony Traficanti, and David Ditzler met in violation of Ohio’s Open Meeting Act
during which Rimedio-Righetti and Ditzler voted to terminate Plaintiff in retaliation. See ECF
1 The Court’s decision is made without consideration of the exhibits filed in
conjunction with Plaintiff’s brief in opposition (ECF No. 22).
No. 3 at PageID #: 71. Plaintiff further alleges that counsel, on Plaintiff’s behalf, emailed a letter
to Defendants Rimedio-Righetti, Ditzler, and Traficanti demanding Plaintiff’s reinstatement. Id.
at PageID #: 72. Plaintiff’s counsel also emailed Defendant Gina DeGenova, who responded
with an email on December 13, 2022 reinstating Plaintiff. See id. at PageID #: 75-77. Plaintiff
asserts that Defendant DeGenova’s email contained false and fraudulent statements. See id.
II. Standard of Review
The standard for deciding a motion for judgment on the pleadings under Fed. R. Civ. P.
12(c) is indistinguishable from the standard for dismissals based on failure to state a claim under
Fed. R. Civ. P. 12(b)(6). U.S. ex rel. Bledsoe v. Cmty. Health Sys., Inc., 342 F.3d 634, 643 (6th
Cir. 2003); 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)). In deciding a motion to dismiss pursuant to Rule
12(b)(6), or a motion for judgment on the pleadings under Rule 12(c), the Court must take all
well-pleaded allegations in the complaint as true and construe those allegations in a light most
favorable to the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted). “To
survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at
679. The factual allegations in the complaint “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (citing authorities).
In other words, claims set forth in a complaint must be plausible, rather than conceivable.
Id. at 570. “[When] the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged -- but it has not ‘show[n]’ -- ‘that the
pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). The
factual allegations in the complaint “must contain something more . . . than . . . a statement of
facts that merely creates a suspicion [of] a legally cognizable right of action.” Twombly, 550
U.S. at 555 (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, p. 235-236
(3d ed. 2004)). In addition to reviewing the claims set forth in the complaint, a court may also
consider exhibits, public records, and items appearing in the record of the case as long as the
items are referenced 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); Erie Cty., Ohio v. Morton
Salt, Inc., 702 F.3d 860, 863 (6th Cir. 2012).
III. Discussion
A. Absolute Litigation Privilege
At the time of filing, Defendant Gina DeGenova was serving as the acting Mahoning
County prosecuting attorney.2 See ECF No. 3 at PageID #: 66. Following Plaintiff’s
termination, counsel for Plaintiff sent Defendant DeGenova an email “making a ‘taxpayer-
demand’ to reinstate Plaintiff and to possibly ‘bring a lawsuit against [the Commissioners] to
correct this abuse of power.’” ECF No. 18 at PageID #: 279. On December 11, 2022, Defendant
DeGenova acknowledged the email and began looking into the allegations put forth by Plaintiff’s
2 Defendant DeGenova was permanently appointed as the Mahoning County
prosecuting attorney at the Mahoning County Democratic Party’s January 7, 2023 meeting.
See ECF No. 3 at PageID #: 72.
counsel. See id. On December 13, Defendant DeGenova sent an email explaining her legal
opinion, concluding that the Commissioners would not ratify the actions taken by the county
administrator, and determining that Plaintiff should report to work the following day. See id. at
PageID #: 280.
Defendant DeGenova argues that she is entitled to the absolute litigation privilege, or,
alternatively, the qualified litigation privilege, as it pertains to statements made in the December
13, 2022 email. See ECF No. 18 at PageID #: 282-283. Plaintiff retorts that Defendant
DeGenova’s statements should be considered extrajudicial because they were published on
December 13, 2022, ten days before the initial Complaint (ECF No. 1) was filed. See ECF No.
22 at PageID #: 335.
“The [absolute] litigation privilege…broadly protects all actors in the course of judicial
proceedings from subsequent liability for acts and conduct related to the proceeding.” Blevins v.
Hudson & Keyse, Inc., 395 F. Supp. 2d 662, 666 (S.D. Ohio 2004). Furthermore, an attorney “is
absolutely privileged to publish false and defamatory matter of another in communications
preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as
a part of a judicial proceeding in which [s]he participates as counsel, if it has some relation
thereto.” Theiss v. Scherer, 396 F.2d 646, 649 (6th Cir. 1968) (citing ALI Restatement, Torts §
586 (1938)).
Plaintiff primarily relies on Ohio state law in support of the positions regarding
extrajudicial communication and the underlying requirements. See e.g., ECF No. 22 at PageID
#: 336-337. Both parties are reminded that while rulings from peer courts are informative, the
Court is not bound by the decisions of other circuits or state courts. See Hall v. Eichenlaub, 559
F. Supp. 2d 777, 782 (E.D. Mich. 2008). Opinions not handed down from the Supreme Court of
the United States or the Sixth Circuit Court of Appeals do not obligate the Court to take any
action in this matter, or any other matter before it. See Hillman Power Co., LLC v. On-Site
Equip. Maint., Inc., 582 F. Supp. 3d 511, 516 (E.D. Mich. 2022). Therefore, the Court is under
no obligation to determine whether Defendant DeGenova’s email contained fraudulent language.
Rather, the Court’s focus remains on a determination of whether Defendant DeGenova is entitled
to absolute litigation privilege in accordance with federal law.
While Defendant DeGenova’s statements, contained in the email, did not occur during
the legal proceedings, they are considered to have occurred “preliminary to a proposed judicial
proceeding” and are reasonably related to the matter at hand. Id. In support of this conclusion,
Plaintiff’s Amended Complaint states that “Defendant DeGenova knew that an investigation was
in progress and that an official proceeding was about to be or likely to be instituted” given the
demand letter which necessitated the email response sent on December 13, 2022. ECF No. 3 at
PageID #: 96. The Court, therefore, finds that Defendant DeGenova is entitled to the protections
of absolute litigation privilege.
B. First Amendment Retaliation
As an alternative to the Court finding that Defendant DeGenova was not entitled to
absolute litigation privilege, Defendant DeGenova argues that Plaintiff inappropriately brings a
First Amendment Retaliation claim. See ECF No. 27 at PageID #: 478-482. In support of the
claim, Plaintiff asserts that he sufficiently pleaded the facts as necessitated by law. See ECF No.
22 at PageID #: 343. The Sixth Circuit has held that a successful First Amendment retaliation
claim requires a showing that:
1) the plaintiff engaged in protected conduct; (2) an adverse action
was taken against the plaintiff that would deter a person of ordinary
firmness from continuing to engage in that conduct; and (3) there is
a causal connection between elements one and two—that is, the
adverse action was motivated at least in part by the plaintiff's
protected conduct.
Maben v. Thelen, 887 F.3d 252, 262 (6th Cir. 2018).
At issue is Plaintiff’s termination, which is alleged to have been the result of a December
1, 2022 meeting between Defendants Rimedio-Righetti, Anthony Traficanti, and David Ditzler.
See ECF No. 3 at PageID #: 71. Among the other elements, Plaintiff is tasked with establishing
that Defendant DeGenova committed an adverse action against Plaintiff, deterring him from
continuing the alleged protected conduct. See Maben v. Thelen, 887 F.3d 252, 262 (6th Cir.
2018). The Amended Complaint alleges that “Defendants Rimedio-Righetti and Ditzler decided
to fire Morrison with no public notice.” ECF No. 3 at PageID #: 71. Absent from both the
Amended Complaint and Plaintiff’s brief in opposition is an allegation that Defendant DeGenova
was involved in Plaintiff’s termination. Furthermore, Defendant DeGenova’s email explicitly
states that she viewed Plaintiff’s termination to be “void ab initio” and requested Plaintiff be
notified that he should report to work on December 14, 2022. ECF No. 3-4 at PageID #: 124.
For these reasons, the Court finds that Plaintiff has failed to establish the existence of an adverse
action committed by Defendant DeGenova, and thus has failed to satisfy the elements needed to
successfully plead a First Amendment Retaliation claim against Defendant DeGenova.
C. Qualified Immunity
Defendant DeGenova preemptively invokes the defense of qualified immunity. See ECF
No. 18 at PageID #: 291. “Qualified immunity is a defense government officials can raise when
claims arise from the performance of their discretionary functions.” Meeks v. Larsen, 999 F.
Supp. 2d 968, 977 (E.D. Mich. 2014), aff'd, 611 F. App'x 277 (6th Cir. 2015). Government
officials performing discretionary functions are shielded from liability unless their conduct
violates clearly established statutory or constitutional rights of which a reasonable person would
have known. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “To avoid the shield of
qualified immunity, a plaintiff must properly plead ‘facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established at the time of the
challenged conduct.’” Feucht v. Triad Loc. Sch. Bd. of Educ., 425 F. Supp. 3d 914, 929 (S.D.
Ohio 2019) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149
(2011)).
Because Plaintiff has not established a violation of either his procedural or substantive
due process rights by Defendant DeGenova, there is no basis for Defendant DeGenova to invoke
the defense of qualified immunity, regardless of her qualifying role. Consequently, the Court
need not resolve the question of qualified immunity as to Defendant DeGenova.
IV. Conclusion
For the reasons above, Defendant Gina DeGenova’s Motion for Judgment on the
Pleadings (ECF No. 18) is granted. Defendant DeGenova and her counsel are excused from
attending the Case Management Conference to be held on May 17, 2023
IT IS SO ORDERED.
May 16, 2023 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge