Fambrough v. City of East Cleveland, Ohio

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

WILLIAM FAMBROUGH, et al., )

) CASE NO. 1:22-cv-00992

Plaintiffs, )

)

v. ) JUDGE BRIDGET MEEHAN BRENNAN

)

)

CITY OF EAST CLEVELAND, et al., ) MEMORANDUM OPINION

) AND ORDER

Defendants. )

William Fambrough brought this action under 42 U.S.C. § 1983 against the city of East

Cleveland and several of its employees. (Doc. No. 1 at ¶¶ 192-268.) All initially named

Defendants jointly filed an Answer. (Doc. No. 22.) Defendants also filed a motion to dismiss

under Rule 12(b)(6) or, in the alternative, for summary judgment under Rule 56. (Doc. No. 19.)

Plaintiff responded to that motion (Doc. No. 25), and Defendants replied (Doc. No. 27). Plaintiff

also filed a motion pursuant to Rule 56(d) explaining a need for discovery. (Doc. No. 26.) The

parties also submitted additional briefing on issues raised by the Court. (See Doc. Nos. 35-40.)

Prior to a ruling on those pending motions, Fambrough filed a motion for leave to file an

amended complaint, which was granted. (Doc. Nos. 41 & 43.) A company owned by

Fambrough was added as a co-plaintiff, as were two more public employee defendants. (See

Doc. No. 44.) Defendants then jointly renewed their motion to dismiss. (Doc. No. 47.)

Plaintiffs have now moved to disqualify Willa Hemmons and Heather McCollough as

counsel for defendants. (Doc. No. 46.) Plaintiffs also moved to strike Defendants’ motion to

dismiss, which Hemmons signed. (Doc. No. 51.) This Opinion resolves Plaintiffs’ motions to

strike and to disqualify as well as Defendants Hemmons’ and McCollough’s motion to dismiss

on the basis of prosecutorial immunity. (See Doc. No. 47.)

I. Facts

Plaintiff William Fambrough lives in East Cleveland and alleges that for around fifteen

years he parked his step van at his home without question or incident. (Doc. No. 44 at ¶¶ 1-2.)

Plaintiff used his step van to carry equipment for his media company and occasionally as a sound

truck. (Id. ¶ 52.) Plaintiff would outfit the step van with a loudspeaker. He would drive through

the streets of East Cleveland with a political sign on the side of the van broadcasting pre-

recorded messages in support of a campaign. (Id. ¶ 55.) Several times in years past he operated

the sound truck in East Cleveland to broadcast pre-recorded messages in support of political

candidates. (Id.) But in 2021, when he used the van to campaign for a challenger against the

incumbent mayor, Plaintiff claims that the defendants retaliated. (Id. ¶¶ 3-4.)

On May 14, 2021, officer Mark Allen came to Plaintiff’s home and told him that parking

a step van in his driveway violated East Cleveland Ordinance § 351.11 (the “Parking

Ordinance”). (Id. ¶ 73.) The Parking Ordinance prohibited “park[ing] a truck, commercial

tractor, trailer, semi-trailer, a motor home or recreational vehicle on a roadway or driveway at

any time in front of or alongside property used for residential purposes except in case of a

breakdown of such vehicle, or for loading and unloading purposes.” (Id. ¶ 74.)

Allen issued a warning ticket and gave Plaintiff three days to comply. (Id. ¶ 73.) On

May 17, 2021, Allen returned to find the step van still in Plaintiff’s driveway and ordered that it

be towed. However, the tow truck was not equipped for a vehicle the size of the step van. (Id. ¶

82.) So, Plaintiff drove the van away and thereafter parked it outside of East Cleveland. (Id. ¶¶

83-84.)

On June 28, 2021, Plaintiff went to city hall to obtain a permit to operate a sound truck in

East Cleveland. (Id. ¶ 91.) His intention was to broadcast messages in support of

Councilwoman Juanita Gowdy, who would challenge Mayor Brandon King in the Fall 2021

election. (Id. ¶¶ 59-65 & 91.)

East Cleveland Ordinance § 509.15(a) (the “Noise Ordinance”) prohibited “play[ing] any

radio, music player . . . audio system . . . or any other type of sound service upon any public

road, street, highway or private property in this municipality in a manner or volume as to disturb

the quiet, comfort or repose of other persons.” (Id. ¶ 85.) The Noise Ordinance contained an

exception for “organized events which have received a valid permit from the city as set forth in §

311.02 . . . .” (Id. ¶ 86 (quoting East Cleveland Ordinance § 509.15(a)).)

East Cleveland Ordinance § 311.02 (the “Permit Ordinance”) prohibited “parad[ing] or

hold[ing] a procession, or attempt[ing] to parade or hold a procession, in or upon any of the

streets, park or public grounds of the city without first obtaining a permit therefor.” (Id. ¶ 87

(quoting E. Cle. Ord. § 311.02(a).) “Under Section 311.02(c), a permit ‘shall be issued only

upon and after the approval by the Chief of Police and the Mayor.’” (Id. ¶ 88 (quoting E. Cle.

Ord. § 311.02(c).) “The permit form used by East Cleveland – styled a ‘sound device permit’ –

has signature lines for both the Mayor and the Chief of Police.” (Id. ¶ 89.)

Plaintiff received a permit form from an assistant in the mayor’s office, who directed him

to obtain the police chief’s signature. (Id. ¶ 92.)1 He took it to the police department, and the

police chief signed it the same day. (Id. ¶ 94.) Upon receiving that one signature on the permit,

1 Plaintiff “understood that to mean that the Mayor’s approval was implied.” (Doc. No. 44 at ¶

92.)

Plaintiff began using his step van as a sound truck once or twice each week to broadcast

messages in support of the mayor’s challenger in East Cleveland. (Id. ¶ 95-96.)

On July 27, 2021, police visited Plaintiff’s home and asked if he had used a sound truck

recently. (Id. ¶ 103.) He confirmed that he had. (Id. ¶ 104.) Police officers advised in response

that the local ordinance required him to have a permit to do so. (Id.) Instead of showing his

permit or explaining that he had obtained one signature, Plaintiff simply responded that he would

comply with the law. (Id. ¶ 105.)

In response, the police did not issue a citation or a threat. Instead, they only advised

Plaintiff that he needed to get a permit. (See id.) But Plaintiff alleged that police had not asked

him about a permit when he operated his sound truck before – neither in years past nor in the

preceding weeks. (Id. ¶ 107.)

“Worried that the police would continue hassling him or even prevent him from using his

truck, [Plaintiff] went to the Cuyahoga County Sheriff’s Office on July 29, 2021, and filled out a

citizen’s complaint . . . against the police officers who had written him the warning parking

ticket, threatened to tow his step van, and bothered him about the permit for using his step van to

campaign . . . .” (Id. ¶ 108.) “In his statement, William explained that he had a permit to operate

his step van as a sound truck signed by the chief of police.” (Id. ¶ 109.)

A few weeks later on the morning of August 18, 2021, the step van was parked on the

street in front of Plaintiff’s home. Plaintiff planned to take it out as a sound truck at 5:30 p.m.

that day. (Id. ¶ 131.) Police arrived and Officer Kyle Wood issued a citation for violation of the

Parking Ordinance. (Id. ¶ 139.) The step van was towed, and police did not allow Plaintiff or

someone else to drive it away voluntarily. (Id. ¶¶ 140-44.)

Officer Andrew Majercik issued a complaint and summons citation for violation of the

Noise Ordinance. (Id. ¶ 150.) Majercik allegedly commented that this was coming from his

“boss” Chief Gardner and “from the brass.” (Id. ¶ 151.) Majercik told Plaintiff that there had

been service calls about the sound truck. (Id. ¶ 155.) Soon after, Plaintiff received a notice to

appear in court for the noise citation, scheduled for September 23, 2021.

On September 2, 2021, Plaintiff filed petitions for civil stalking protection orders against

Mayor King and Police Chief Gardner. (Id. ¶¶ 171-73.) On September 3rd, the court denied ex

parte and set a hearing date for September 20, 2021. (Id. ¶ 174.) King, Gardner, and law

director Willa Hemmons attended that hearing, where the magistrate judge denied the petitions.

(Id. ¶ 175.)

On September 14, 2021, Mayor King prevailed over Gowdy and other challengers in the

election. (Id. ¶ 178.)

Two days before a September 23, 2021, scheduled court date on the Noise Ordinance

complaint, Plaintiff’s attorney called McCollough to plea bargain. (Id. ¶¶ 179-80.) McCollough

pointed out that Plaintiff’s permit lacked the requisite signatures. (Id. ¶ 181.) McCollough

allegedly stated that although she would normally resolve a noise pollution citation, she “might”

not for Plaintiff who needed to “stand down.” (Id. ¶ 182.) McCollough allegedly mentioned

Plaintiff’s political activity, as well as his complaints against and records requests to the city.

(Id. ¶¶ 183-84.) The Complaint then detailed what occurred on the scheduled court date:

When Assistant Law Director McCollough arrived at the hearing, she characterized

the citation William received as “just a noise” violation. McCollough also told

William and his attorney that she could not guarantee that William would be treated

in the future as leniently as he was being treated that day if he continued to cause

problems “downtown.”

William ultimately agreed to a plea of no contest to a reduced charge of disorderly

conduct. After William signed the plea form, the bailiff took it back to the judge

to sign in chambers. The judge assessed a fine of $5.00, plus court costs of $94.00.

William paid the fine a few days later.

As William and his attorney were leaving the court room, McCollough called after

them and said that William needed to watch himself and mind his own business

going forward.

(Id. ¶¶ 188-92.)

In the Amended Complaint, Plaintiffs added facts regarding the mayor’s chief of staff and

the regular “cabinet” meetings about the members of the city’s executive branch. (See Doc. 41-2

at PageID 665-68.) Among those facts, Plaintiffs alleged that the mayor’s office directed

Hemmons to enforce the Parking Ordinance against Fambrough, and that Hemmons in turn so

directed then-police chief Gardner. (Id. at ¶¶ 120-22.) Hemmons apparently was not a necessary

participant, however, as Plaintiffs specifically alleged that the mayor’s chief of staff directly

spoke to and pressured Gardner to take enforcement action against Plaintiffs. (Id. at ¶ 128.)

II. Law and Analysis

Defendants moved to dismiss or, in the alternative, for summary judgment asserting

immunity defenses. (Doc. No. 19 at PageID 158 & 165.) Defendants invoked (i) Ohio law

immunities afforded to municipalities and their employees, (ii) absolute immunity for

prosecutors, and (iii) qualified immunity for police officers. (Id.) Although Defendants assert

that Plaintiff failed to state a claim upon which relief may be granted, the motion specifies that

this is so because the claims purportedly are barred by the immunity defenses. (Doc. No. 19 at

PageID 171.)

Plaintiff filed a motion under Rule 56(d) asserting a need for further discovery. (Doc.

No. 26.) The Court generally is inclined to permit plaintiffs to engage in discovery prior to

entertaining a summary judgment motion. The Court therefore reviews the Defendants’ motion

under the standard of review for Rule 12, informed by precedent (discussed below) where courts

have considered immunity defenses on a motion to dismiss.

A. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) provides that a pleading must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” “[W]hen a

complaint adequately states a claim, it may not be dismissed based on a district court’s

assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his

claim to the satisfaction of the factfinder.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563

n.8 (2007). The function of the Court in ruling on such a motion is not to weigh the evidence,

nor to appraise the credibility of witnesses. Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995).

“To survive a motion to dismiss, the pleading 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 Twombly, 550 U.S. at 570). A claim is facially plausible “when

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.’” Id. “To state a valid claim, a complaint must

contain direct or inferential allegations respecting all the material elements under some viable

legal theory.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th

Cir. 2007).

A court must accept factual allegations as true and draw all reasonable inferences in a

plaintiff’s favor. Ryan v. Blackwell, 979 F.3d 519, 524 (6th Cir. 2020); see also Mixon v. Ohio,

193 F.3d 389, 400 (6th Cir. 1999) (a court “need not accept as true legal conclusions or

unwarranted factual inferences”). “The plausibility of an inference depends on a host of

considerations, including common sense . . . .’” Ryan, 979 F.3d at 524 (quoting 16630 Southfield

Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 504 (6th Cir. 2013)). The Court need not

accept as true “complaint allegations that are contradicted by public records and other

evidentiary materials of which the Court may take judicial notice.” Lawson v. Lynch, No. 4:15-

CV-2140, 2017 WL 979115, at *4 (N.D. Ohio Mar. 14, 2017).

If a plaintiff pleads facts that prove a flaw in the claim or substantiate a defense, he may

plead himself out of federal court. See Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir.

2012); Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010);

O’Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015) (“A complainant can plead

himself out of court by including factual allegations that establish that the plaintiff is not entitled

to relief as a matter of law.”).

Courts have held that absolute immunity for a prosecutor may be amenable to a motion to

dismiss. See, e.g., Jacobs v. Horn, No. 91-4043, 986 F.2d 1421, 1993 WL 30499 (6th Cir. Feb.

9, 1993). The Sixth Circuit has held that a prosecutor’s absolute immunity defense raised in a

Rule 12 motion may be decided by taking the plaintiff’s plausible allegations in the complaint as

true. See Watkins v. Healy, 986 F.3d 648, 660 (6th Cir.), as corrected on denial of reh’g en banc

(Mar. 16, 2021) (holding that absolute immunity was not available), cert. denied, 142 S. Ct. 348

(2021).

Further, the Supreme Court has affirmed dismissal under Rule 12 for other state actors

based on qualified immunity. E.g., Iqbal, 556 U.S. at 680-82 (where plaintiff failed to plead

unconstitutional actions); Ashcroft v. al-Kidd, 563 U.S. 731, 744 (2011) (where the law was not

clearly established). Guided by such decisions, the Sixth Circuit explained the interplay between

a qualified immunity defense and a pre-discovery Rule 12 motion:

Although a defendant ordinarily bears the burden of proof for an affirmative

defense, a plaintiff bears the burden of overcoming qualified immunity. Unless the

plaintiff’s allegations state a claim of violation of clearly established law, a

defendant pleading qualified immunity is entitled to dismissal before the

commencement of discovery. [O]fficers are entitled to qualified immunity under §

1983 unless (1) they violated a federal statutory or constitutional right, and (2) the

unlawfulness of their conduct was clearly established at the time. [A court] can

address these requirements in either order. If one is lacking, [a court] need not

address the other.

Crawford v. Tilley, 15 F.4th 752, 760 (6th Cir. 2021).

Although some prior decisions indicated a preference against motions to dismiss in favor

of summary judgment for qualified immunity, the Sixth Circuit explained in Crawford that “no

such preference applies to the violation-of-a-constitutional-right prong. After all, asking whether

there was a violation of a constitutional right resembles the Rule 12(b)(6) question – has the

plaintiff pleaded facts that state a claim for relief in the complaint?” Id. at 764.

As to the second prong for evaluating qualified immunity, “the inquiry is nuanced.

Dismissing for qualified immunity on this ground is sometimes difficult because the clearly

established inquiry may turn on case-specific details that must be fleshed out in discovery.” Id.

at 765. However, “a complaint distinguishable from . . . past cases on its face will not often

survive a motion to dismiss on qualified immunity grounds. This is especially true where

granting relief to the plaintiff can only be done by recognizing a novel constitutional right.” Id.

at 766 (emphasis added). In sum, dismissal on qualified immunity grounds is proper when the

“complaint establishes the defense.” Siefert v. Hamilton County, 951 F.3d 753, 762 (6th Cir.

2020).

B. Summary of Claims in the Complaint

Count I was brought against the individual defendants and alleges retaliation in violation

of the First Amendment. (Doc. No. 44 at ¶¶ 221-47.)

Count II was brought against the city of East Cleveland and alleges an official policy or

custom aimed at retaliation in violation of the First Amendment. (Id. ¶¶ 248-62.)

Count III asserted that the Noise Ordinance and Permit Ordinance together work a prior

restraint on speech that violates the First Amendment. (Id. ¶¶ 263-78.) Count III raised both a

facial challenge to those ordinances as well as an as-applied challenge. (Id. ¶ 264; id. at PageID

49 ¶ E.)

Count IV asserted that the defendants selectively enforced the Noise and Parking

Ordinances against Plaintiff in violation of the Equal Protection Clause of the Fourteenth

Amendment. (Id. ¶¶ 279-86.)

Count V asserted that towing the step van was an unreasonable seizure in violation of the

Fourth and Fourteenth Amendments. (Id. ¶¶ 287-301.) Plaintiff alleged that the tow was part of

the retaliatory plan referenced in Counts I and II. (Id. ¶ 295.)

Counts III, IV, and V were brought against all defendants. (Id. at PageID 41, & 44-45.)

C. Absolute Immunity for Prosecutors

Defendants Hemmons and McCollough moved to dismiss arguing that prosecutors have

absolute immunity. (Doc. No. 19 at PageID 158.) The determination of whether a defendant is

entitled to absolute immunity is a question of law. Spurlock v. Thompson, 330 F.3d 791, 796

(6th Cir. 2003). The prosecutorial immunity grounds for dismissal have not changed from the

original Complaint to the Amended Complaint, nor has Defendants’ basis changed from their

original motion to dismiss to the present motion. (Compare Doc. No. 19 with Doc. No. 47.)

To determine when the prosecutor is entitled to absolute immunity, courts employ a

functional approach.

Prosecutorial immunity extends to a prosecutor’s decision to file a criminal

complaint and seek an arrest warrant and the presentation of these materials to a

judicial officer. . . . The analytical key to prosecutorial immunity, therefore, is

advocacy – whether the actions in question are those of an advocate.

Holloway v. Brush, 220 F.3d 767, 775 (6th Cir. 2000) (emphasis in original) (quotations and

citations omitted); Ireland v. Tunis, 113 F.3d 1435, 1446 (6th Cir. 1997) (“A prosecutor’s

decision to file a criminal complaint and seek an arrest warrant and the presentation of these

materials to a judicial officer fall squarely within the aegis of absolute prosecutorial immunity.”);

see also Drake v. Howland, 463 F. App’x 523, 525 (6th Cir. 2012) (“When a prosecutor acts as

advocate for the state in deciding to prosecute and bringing the complaint, absolute immunity

holds.”).

“A government officer is entitled to absolute immunity for performing functions

‘intimately associated with the judicial phase of the criminal process.’ . . . [A] prosecutor is

entitled to absolute immunity when he acts ‘within the scope of his duties in initiating and

pursuing a criminal prosecution.’” Adams v. Hanson, 656 F.3d 397, 401 (6th Cir. 2011) (quoting

Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (holding that a state prosecutor had absolute

immunity for the initiation and pursuit of a criminal prosecution)); but see Burns v. Reed, 500

U.S. 478, 492-93 (1991) (holding that absolute immunity does not extend to prosecutor advising

the police on investigative tactics); Prince v. Hicks, 198 F.3d 607, 612-13 (6th Cir. 1999).

“‘Absolute prosecutorial immunity is not defeated by a showing that the prosecutor acted

wrongfully or even maliciously, or because the criminal defendant ultimately prevailed on appeal

or in a habeas corpus proceeding.’” Grant v. Hollenbach, 870 F.2d 1135, 1138 (6th Cir. 1989)

(quoting M. Schwartz & J. Kirklin, Section 1983 Litigation: Claims, Defenses, and Fees § 7.8

(1986)). In Grant, a Section 1983 plaintiff challenged a county prosecutor’s motive to prosecute

a child abuse case against him. Id. The plaintiff asserted that the prosecutor colluded and

conspired with plaintiff’s ex-wife to bolster her chances of securing custody. Id. The plaintiff

also asserted that the prosecutor acted for self-serving political reasons. Id. at 1136. The Sixth

Circuit explained that the decision to prosecute, “even if malicious and founded in bad faith, is

unquestionably advocatory and at the heart of the holding in Imbler.” Id. at 1138. “Construing

[the prosecutor’s] conduct in bringing an indictment, we find him absolutely immune despite the

challenge to his motivation.” Id.

“The motives of a prosecutor in initiating prosecution are irrelevant for purposes of

immunity.” Holland v. Cty. of Macomb, No. 16-2103, 2017 WL 3391653, at *2 (6th Cir. Mar.

17, 2017) (holding that district court properly dismissed § 1983 claim against prosecutor who

“had immunity in choosing to initiate a prosecution against [plaintiff], regardless of alleged

motive”).2 “[A]bsolute immunity provides complete protection from judicial scrutiny of the

motives for the prosecutors’ actions.” Ireland, 113 F.3d at 1447 (holding that the prosecutor was

entitled to absolute immunity notwithstanding alleged political motivations for his actions).

“Absolute immunity protects a prosecutor from exposure to lawsuits, not just liability; ‘[t]he

rationale for granting absolute immunity is as much to protect the relevant persons from a trial on

their actions as it is to protect them from the outcome of the trial.’” Grant, 870 F.2d at 1137

(quoting McSurely v. McClellan, 697 F.2d 309, 315 (D.C. Cir. 1982)).

That a prosecutor was wrong in her probable cause assessment would not deprive her of

absolute immunity. See Drake, 463 F. App’x at 528 (6th Cir. 2012) (quoting Buckley v.

Fitzsimmons, 509 U.S. 259, 274 n.5 (1993) (“The reason that we grant [absolute immunity] for

2 Even assuming that a prosecutor was motivated by the potential civil ramifications of a

criminal prosecution, that would not preclude absolute immunity as to the criminal prosecutorial

actions. See Eldridge v. Gibson, 332 F.3d 1019, 1021 (6th Cir. 2003).

the latter function (malicious prosecution) is that we have found a common-law tradition of

immunity for a prosecutor’s decision to bring an indictment, whether he has probable cause or

not.”)); see also Gregory v. City of Louisville, 444 F.3d 725, 740 (6th Cir. 2006) (“The Buckley

Court dismissed the argument that probable cause was a dividing line for potential liability

attendant to prosecutors’ actions.”).

Finally, a supervising prosecutor enjoys absolute immunity where her subordinate

attorney actually tried the criminal case that gives rise to the Section 1983 claim. See generally

Howell v. Sanders, 668 F.3d 344, 353 (6th Cir. 2012); Van de Kamp v. Goldstein, 555 U.S. 335,

346-47 (2009). With that legal backdrop, the Court reviews the claims against two prosecutor

Defendants.

1. Allegations Against McCollough and Hemmons

Hemmons is the Law Director for East Cleveland. (Doc. No. 44 at ¶¶ 17 & 42.) The

law director for East Cleveland is appointed by the mayor and serves as the prosecuting attorney

for the City and legal counsel for the mayor and other city officials. She had supervision and

control over the law department. (Id. ¶ 41.)

McCollough is the Assistant Law Director. (Id. ¶¶ 18 & 44.) The assistant law director

is designated by the law director to serve as the prosecuting attorney for the city. (Id. ¶ 43.)

Together Hemmons and McCollough comprise the city’s Law Department. (Id. ¶ 45.)

On information and belief, Law Director Hemmons directed, approved, or ratified

the use of the City’s law department that she supervised to selectively enforce the

Noise Ordinance against [Plaintiff], for the purpose of punishing and suppressing

his core political speech against the incumbent mayor, not because the Noise

Ordinance is routinely enforced against sound trucks used to broadcast community

or political messages in East Cleveland. On information and belief, she also

directed, approved, or ratified the selective enforcement of the Parking Ordinance

against [Plaintiff], for the purpose of punishing and suppressing his core political

speech against the incumbent mayor, not because the Parking Ordinance is

routinely enforced against step vans that are parked in residential areas for reasons

that have nothing to do with political speech.

(Id. ¶ 218.)

Heather McCollough, acting as the City’s representative in processing the Noise

Ordinance complaint against [Plaintiff], acted beyond any legitimate scope of her

authority by using her office to coerce [Plaintiff] into relinquishing his First

Amendment rights. She personally conditioned lenient treatment on [Plaintiff]

“stand[ing] down” from his political advocacy and threatened that [Plaintiff]

needed to watch himself and mind his own business going forward.

Coupling a threat of prosecution with a demand to relinquish First Amendment

rights was plainly outside McCollough’s legitimate powers.

(Id. ¶¶ 226-27.)

On information and belief, Law Director Willa Hemmons directed Heather

McCollough and/or the police officers to retaliate against [Plaintiff], or at least was

aware of their retaliatory actions and did nothing to stop them. In particular, given

that Hemmons directly supervises McCollough in a two-person municipal law

office, Hemmons must have known of McCollough’s retaliatory actions and either

expressly approved of them or willfully refrained from stopping them.

(Id. ¶ 228.)

In Count I, the Complaint alleged that Hemmons was aware of retaliatory conduct toward

Plaintiff when he “filed the citizen’s complaint against the police department for its retaliatory

selective enforcement of the Parking Ordinance. Nevertheless, [she] either expressly approved

of or willfully refrained from stopping the retaliatory actions.” (Id. ¶ 232.) Further, Hemmons

directly supervised McCollough in a two-person municipal law office, so Hemmons must have

known of McCollough’s retaliatory actions and either expressly approved of them or willfully

refrained from stopping them. (Id. ¶ 228.)

In Count III, the Complaint alleged that any reasonable official would have known that

the Noise and Permit Ordinances violated the First Amendment. (Id. ¶ 278(b).) In Count V, the

Complaint alleged that Hemmons directed the police to enforce the Parking Ordinance and/or to

tow the truck. (Id. ¶ 300.)

2. Prosecutorial Functions

The key allegation against Hemmons was that she “directed, approved, or ratified the use

of the City’s law department that she supervised to selectively enforce the Noise Ordinance . . .

[and] the Parking Ordinance against” Plaintiff. (Id. ¶ 218.) Those ordinances were not routinely

prosecuted for conduct like Plaintiff’s. (Id.) Plaintiffs claim that Hemmons and McCollough

aimed to punish and suppress Plaintiffs’ political speech. (Id. ¶ 216.)

Enforcement of municipal ordinances and the decision to prosecute violations of those

are quintessential prosecutorial functions for which Hemmons and McCollough enjoy absolute

immunity. Even where the motive for such prosecution is alleged to be discriminatory,

retaliatory, or unconstitutional, the function remains one at the center of absolute immunity. See

Grant, 870 F.2d at 1138.

The Sixth Circuit’s decision in Shoultes v. Laidlaw, 886 F.2d 114 (6th Cir. 1989) is

instructive. There the court held that a city attorney’s decision to enforce a municipal zoning

ordinance was a matter protected by absolute immunity. That included enforcement decisions in

the civil and criminal context. Id. at 118 (citing Salyer v. Patrick, 874 F.2d 374, 378 (6th Cir.

1989) (absolute immunity extends to “quasi-prosecutorial functions”)).

“[T]he duties of the prosecutor in his role as advocate for the State involve actions

preliminary to the initiation of a prosecution and actions apart from the courtroom, and are

nonetheless entitled to absolute immunity.” Higgason v. Stephens, 288 F.3d 868, 877 (6th Cir.

2002) (quoting Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993)) (granting motion to

dismiss based on absolute immunity where the claim was based on prosecutor’s professional

evaluation of evidence); Manetta v. Macomb Cty. Enf’t Team, 141 F.3d 270, 274 (6th Cir. 1998).

Statements made by a prosecutor in a court building off the record and just before or after a

hearing warrant absolute immunity when the comments relate to the proceedings. See Adams v.

Hanson, 656 F.3d 397, 404-05 (6th Cir. 2011). Accordingly, immunity applies to a prosecutor’s

statements during plea bargaining, a hearing on an ordinance violation, or ‘off the record’

comments just before or after a hearing that relate to the decision to prosecute.

The key allegations against McCollough centered on plea negotiations and

communications during and after a noise ordinance violation hearing. If McCollough made the

remarks before and after the court appearance on the Noise Ordinance violation, as alleged in the

Complaint, that may have been unwise. But plainly she was speaking in the role of an advocate

and prosecutor. Absolute immunity applies, even assuming the ulterior motive was to intimidate

Plaintiff or dissuade his First Amendment expression.

For the foregoing reasons, the Court holds that Hemmons and McCollough, who were

sued in an individual capacity, are protected by the doctrine of absolute immunity. Their motion

to dismiss on that basis is granted. The claims in Counts I, III, IV and V against Hemmons and

McCollough (see Doc. No. 44 at ¶¶ 17-18), are dismissed.3

D. Disqualification

The Sixth Circuit has held “that there is a need for sensitivity to the risk of conflict in §

1983 suits and that the judge and the parties have joint responsibility to guard interests that are

actually threatened.” Gordon v. Norman, 788 F.2d 1194, 1199 (6th Cir. 1986) (quotation and

citation omitted). But there is no per se rule that prohibits law department attorneys from

representing a city and its employees in a § 1983 action. Id.; see also Coleman v. Frierson, 607

F. Supp. 1566, 1572 (N.D. Ill. 1985) (cited with approval in Gordon). In fact, the presumption in

3 To the extent that those defendants had policymaking authority, as the Complaint alleged, their

actions in that regard still could render East Cleveland liable under Monell. Absolute immunity

does not extend to the city.

Ohio is that law directors will do so – barring disqualification. See generally City of Cuyahoga

Falls v. Robart, 567 N.E.2d 987, 992 (Ohio 1991). “The Court is cognizant of the potential for

conflict of interest when counsel represents a municipality and its employees in § 1983 actions . .

. . However, disqualification of counsel is not an automatic remedy. The Court must be ever

vigilant; but must also carefully weigh the public interest in the judicial process against the

private interests of each party.” Eng’g & Mfg. Servs., LLC v. Ashton, No. 1:07-CV-689, 2011

WL 13238209, at *2 (N.D. Ohio Sept. 9, 2011) (denying motion to disqualify).

“When considering whether to disqualify counsel ‘courts must be sensitive to the

competing public interests of requiring professional conduct by an attorney and of permitting a

party to retain the counsel of his choice.’” DeCrane v. Eckart, No. 1:16-CV-2647, 2019 WL

336790, at *2 (N.D. Ohio Jan. 28, 2019) (quoting Hamrick v. Union Twp., Ohio, 81 F. Supp. 2d

876, 878 (S.D. Ohio 2000)).

While looking toward the Code of Professional Responsibility for guidance in

considering the disqualification of counsel, the trial court should be mindful that

disqualification is a drastic measure. In fact, a violation of the Code of Professional

Responsibility alone should not result in a disqualification, unless disqualification

is found to be absolutely necessary. Certainly, more is required than an allegation

of an ethical violation.

Centimark Corp. v. Brown Sprinkler Serv., Inc., 620 N.E.2d 134, 137 (Ohio Ct. App. 11th Dist.

1993) (citation omitted); see also In re Valley-Vulcan Mold Co., 237 B.R. 322, 337 (6th Cir.

BAP 1999) (“Motions to disqualify are viewed with disfavor and disqualification is considered a

drastic measure which courts should hesitate to impose except when absolutely necessary.”

(quotation omitted)), aff’d 5 F. App’x. 396 (6th Cir. 2001).

Acts that appear to violate the Code of Professional responsibility do not confer

upon the trial court the unfettered discretion to disqualify. An attorney should be

disqualified only when there is a reasonable possibility that some specifically

identifiable impropriety actually occurred and, in light of the interest underlying

the standards of ethics, the social need for ethical practice outweighs the party's

right to counsel of his own choice.

Kitchen v. Aristech Chem., 769 F. Supp. 254, 257 (S.D. Ohio 1991) (quoting United States v.

Kitchin, 592 F.2d 900, 903 (5th Cir. 1979)) (cited with approval in Centimark).

“Disqualification questions are intensely fact-specific, and it is essential to approach such

problems with a keen sense of practicality as well as a precise picture of the underlying facts.”

Gould, Inc. v. Mitsui Min. & Smelting Co., 738 F. Supp. 1121, 1124 (N.D. Ohio 1990) (cited

with approval in Centimark). Further, “disqualification of counsel in an action which has been

pending for some time is but one of several alternatives and is a drastic measure which courts

will not impose unless absolutely necessary.” Id. at 1124-25.

Such motions are often made as tactical attempts to divest opposing parties of their

counsel of choice. Subsequently, in resolving these motions, judicial scrutiny of

the facts is required to prevent unjust results. . . . In ruling on a motion to

disqualify, and in considering the possible sanctions available to punish unethical

conduct, courts must remember that the court is not the only agency policing

lawyers’ conduct. Other agencies are established to deal directly with that conduct,

and there may be times when the sanctions of those agencies may be more

appropriate than disqualification in the case before the court.

Id. (citations omitted). “Unquestionably, the ability to deny one’s opponent the services of

capable counsel, is a potent weapon. Confronted with such a motion, courts must be sensitive to

the competing public policy interests of preserving client confidences and of permitting a party

to retain counsel of his choice.” Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222,

224 (6th Cir. 1988).

Plaintiffs argued that the representation here “presents a conflict of interest materially

identical to” that in Wheatt v. City of E. Cleveland, No. 1:17-CV-377, 2020 WL 2340229 (N.D.

Ohio May 11, 2020). (Doc. No. 46 at PageID 775.) In Wheatt, there was a specific issue of

indemnification following a jury verdict which presented something of a zero-sum scenario:

either the city or the two individual defendants would have to pay the judgment amount. Id. at

*1. The Court indicated “that it is completely improper for the City of East Cleveland to

represent [the individual defendants] on this issue. . . . Because [the individual defendants] have

a conflicting interest in whether to contest indemnification, East Cleveland’s representation

presents an obvious conflict of interest.” Id.

The conflict of interest in Wheatt was realized, concrete, and palpable. That is not the

case here. Moreover, Plaintiffs did not put forward evidence to support their assertion that

Hemmons’ and McCollugh’s “personal interests are ‘directly adverse’ to the other individual

defendants and to their employer and co-defendant, the City of East Cleveland.” (Doc. No. 46 at

PageID 775.) Hemmons and McCollough are no longer defendants subject to personal liability.

As for Plaintiffs’ assertion of prejudice, the Court is unpersuaded. That Plaintiffs’

counsel was permitted to communicate directly with an individual defendant(s) is not material

harm. (See Doc. No. 46 at PageID 776.) In fact, a defendant always can elect to communicate

directly with a plaintiff’s attorney, so long as the defendant’s attorney is apprised and does not

object. Here, Plaintiffs admit that Hemmons consented to such communication. (See id.)

Plaintiffs specifically pointed to uncertainty regarding Hemmons’ and McCollough’s

representation of Defendant Gardner. (See id.) In an Order dated June 9, 2023, the Court

granted Hemmons’ and McCollough’s motion for leave to withdraw as counsel for Gardner.

(See Doc. No. 32 and accompanying Order.)

As for potential discovery disputes or discovery rule violations, (see Doc. No. 46 at

PageID 776), Plaintiffs may bring those to the attention of the Court if necessary in conformance

with local and federal rules.

The motion to disqualify is denied.

III. Conclusion

Defendants’ motion to dismiss is GRANTED as to Hemmons and McCollough on

absolute immunity grounds. The claims against Hemmons and McCollough in their individual

capacities are DISMISSED.

The motion to strike (Doc. No. 51.) is DENIED. The motion to dismiss the amended

complaint as to the remaining defendants (Doc. No. 47) stands and will be considered on its

merits. The briefing deadlines set in the Court’s May 16, 2023 Order (Doc. No. 43) remain in

effect.

The motion to disqualify (Doc. No. 46) is DENIED.

IT IS SO ORDERED.

____________________________________

BRIDGET MEEHAN BRENNAN

Date: June 16, 2023 UNITED STATES DISTRICT JUDGE