Pippin v. City of Reynoldsburg

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES PIPPIN, :

: Case No. 2:17-cv-598

Plaintiff, :

: CHIEF JUDGE ALGENON L. MARBLEY

v. :

: Magistrate Judge Vascura

CITY OF REYNOLDSBURG, et al., :

:

Defendants. :

ORDER & OPINION

This matter comes before the Court on Motions to Dismiss by Defendants City of

Reynoldsburg and Chief O’Neill (ECF No. 42) and Defendant Shane Mauger. (ECF No. 43). In

response, Plaintiff has filed a memorandum contra and Defendants have each filed a response.1

For the reasons below, Defendants’ Motions are GRANTED IN PART and DENIED

IN PART.

1 In a telephonic status conference on June 13, 2019, this Court informed the parties that it would

be staying consideration of this matter pending potentially dispositive cases then under

consideration at the Supreme Court. The Supreme Court decided those cases in June 2019.

Thereafter, this Court resumed its consideration of this matter. Defendants filed a supplemental

brief (ECF No. 55), offering an argument about the relevance to this case of the newly-decided

Supreme Court cases and reciting arguments made in briefing in the Motion to Dismiss. Plaintiff

filed a response to this supplemental brief, which addressed Defendant’s substantive arguments

as well as the Supreme Court decisions. (ECF No. 57). Defendants accordingly filed a reply to

this substantive brief, hoping to get the last word. (ECF No. 58). This Court has taken into

consideration the parties’ first filings on the Motion to Dismiss, Defendant’s supplement on the

relevance of the Supreme Court cases, and Plaintiff’s brief inasmuch as it discusses the Supreme

Court cases. The parties’ attempts to use the second round of briefing to discuss substantive

matters that were, or should have been, raised in the first round of briefing was not considered by

this Court at this stage. The portions of these filings that do not address the reason for the stay

and instead raise new arguments or revive old arguments are therefore stricken.

I. BACKGROUND

Plaintiff James Pippin is an African-American man who lives in Ohio. Pippin was

arrested on May 19, 2015 pursuant to an eight-count indictment (“First Indictment”) delivered by

an Ohio Grand Jury in April 2015 charging him with violations of drug related crimes. (ECF No.

11 at 5). In September 2015, Pippin was sentenced to a term of 54 months’ incarceration.

However, on December 6, 2016, the Chief Assistant Prosecuting Attorney of Fairfield County

filed a nolle prosequi, dismissing the indictment against Pippin, who was subsequently released

from prison. Pippin was later re-indicted on July 24, 2017 (“Second Indictment”); on May 15,

2018, he pleaded guilty to one count of the Second Indictment.2

The First Indictment indictment was nolle prossed because of the officers who worked on

Pippin’s case. In 2016, the police officers who worked on Plaintiff’s case, Shane Mauger and

Tye Downard, were investigated for various crimes committed in their capacity as police

officers. (ECF No. 42 at 3). Defendant Shane Mauger pleaded guilty to violations of 18 U.S.C. §

241 for conspiracy to deprive individuals of their civil rights and 18 U.S.C. § 666(a)(1)(A)

Federal Program Theft. Defendant Mauger was sentenced by this Court and is currently serving a

thirty-three month sentence. (USA v. Mauger, 2:16-cr-00091, ECF No. 20). Tye Downard, the

other officer, died by suicide before charges could be brought against him. Plaintiff filed a

motion to reopen his case and he was nolle prossed.

Plaintiff then brought this suit against Mauger; Jim O’Neill, Chief of the Reynoldsburg

Police Department; the City of Reynoldsburg; Fairfield County; and the prosecutor in Fairfield,

Kyle Witt. (ECF No. 11). In his complaint, Plaintiff alleges that Mauger and Downard

2 Plaintiff was later the subject of a controlled buy, which led to the Second Indictment and his

subsequent incarceration. In the instant case, however, Plaintiff does not challenge the validity of

that controlled buy or the Second Indictment. (ECF No. 44 at 4-5).

orchestrated his arrest by planting illegal drugs on his property, searching his residence, and then

seizing his cash, jewelry, electronics in violation of the constitution. (ECF No. 11 at 7). Plaintiff

alleges that as Mauger and Downard “rampage [sic] through the constitutional rights of

Reynoldsburg citizens, such as Plaintiff,” Reynoldsburg and Chief O’Neil ratified and failed to

exercise supervisory responsibility for their actions, leading to violations of Plaintiff’s

constitutional rights. Id. at 8. Further, Plaintiff alleges that immediately after Pippin requested

compensation from Reynoldsburg for his unlawful arrest, prosecution, and incarceration, Witt re-

indicted Pippin to prevent and dissuade him from pursuing his claims in court. Id.

Fairfield County and Kyle Witt were dismissed by agreement of the parties pursuant to

Rule 41. (ECF No. 37). The City of Reynoldsburg and Chief O’Neill filed a Motion to Dismiss

(ECF No. 42), as did Mauger (ECF No. 43), to which Plaintiff filed memoranda in opposition

(ECF Nos. 44, 45) and to which the Defendants filed replies. (ECF Nos. 46, 47). This case was

briefly stayed in June 2019 pending the Supreme Court’s consideration of potentially dispositive

matters. In August 2019, after those cases were decided, this Court resumed consideration of the

case and the parties each filed a supplemental brief. (ECF Nos. 56 and 57). Defendant City of

Reynoldsburg thereafter filed a reply. (ECF Ho 58). This case is ripe for review.

II. STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a cause of action

for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Such a

motion “is a test of the plaintiff’s cause of action as stated in the complaint, not a challenge to the

plaintiff’s factual allegations.” Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir.

2005). Thus, the Court “must construe the complaint in the light most favorable to the plaintiff”

and “accept all well-pled factual allegations as true[.]” Ouwinga v. Benistar 419 Plan Servs.,

Inc., 694 F.3d 783, 790 (6th Cir. 2012). If more than one inference may be drawn from an

allegation, the Court must resolve the conflict in favor of the plaintiff. Mayer v. Mylod, 988 F.2d

635, 638 (6th Cir. 1993). The Court cannot dismiss a complaint for failure to state a claim

“unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Id.

Generally, a complaint must contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The allegations need not be detailed

but must “give the defendant fair notice of what the claim is, and the grounds upon which it

rests.” Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551

U.S. 89, 93 (2007)). A complaint’s factual allegations “must be enough to raise a right to relief

above the speculative level,” and must contain “enough facts to state a claim to relief that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A claim is

plausible when it contains “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). The Court is not required to accept as true mere legal conclusions unsupported by factual

allegations. Id. (citing Twombly, 550 U.S. at 555).

III. LAW & ANALYSIS

A. Federal Constitutional Claims (Counts One, Two, and Three)

Plaintiff alleges three violations of his rights under the United States Constitution. He

alleges that Defendants acted under color of state law when they unreasonably and unlawfully

searched his home, seized his property, and deprived him of his liberty. (ECF No. 11 at ¶¶ 19-

36). Before addressing these claims on their merits, this Court first evaluates which Defendants

may have defenses that need to be addressed as a threshold matter.

For the purposes of liability under 42 U.S.C. § 1983, the Supreme Court has interpreted

the word “person” broadly, such that, inter alia, municipalities are considered persons. Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A municipality may not be held liable under §

1983 “solely because it employs a tortfeasor – or, in other words, a municipality cannot be held

liable under § 1983 on a respondeat superior theory.” Id. at 691. Rather, a plaintiff must show

that the municipality was, “through its deliberate conduct…the moving force behind the injury

alleged.” Alman v. Reed, 703 F.3d 887, 903 (6th Cir. 2013) (internal quotation omitted). To do

this, a plaintiff must show that the municipality had a “policy or custom” that caused the

violation of her rights. Monell, 436 U.S. at 694. The Sixth Circuit has outlined four methods a

plaintiff may use to show the municipality had such a policy or custom:

(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 or acquiescence of federal rights violations.

Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citation omitted). Then, in Pembaur v.

City of Cincinnati, 475 U.S. 469 (1985), the Supreme Court held that a municipality may be held

liable under § 1983 for a single action by the municipality’s policymakers. Id. at 479-80. The

municipality is liable “for an official’s unconstitutional action only when the official is the one

who has the final authority to establish municipal policy with respect to the action ordered.”

Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993) (quoting Pembaur, 475 U.S. at

481) (internal quotation marks omitted). An employee is a final policymaker for these purposes

when the official’s decisions are “final and unreviewable and are not constrained by the official

policies of superior officials.” Feliciano, 988 F.2d at 655. The authority to make final policy can

come from custom, legislation, or delegation from other officials with final policymaking

authority. Id. To determine whether an official has final policymaking authority, courts resort to

state law. Id.

Therefore, the question here is whether Plaintiff has pleaded sufficient facts to state a

claim for Monell liability against the City of Reynoldsburg and to establish that Defendant

O’Neill is a policymaker. Defendants argue that Plaintiff has failed to state a claim because, in

short, he does not plead enough facts, but Defendants do not argue that O’Neill is not a

policymaker under Ohio law. Defendants argue both that Plaintiff fails to state a claim sufficient

to carry Monell liability because he has not alleged a sufficient constitutional injury; and, in the

alternative, that Plaintiff has failed to make out a Monell claim against Reynoldsburg. Below,

this Court discusses the question of constitutional injury; the question is whether Plaintiff has

pleaded sufficient facts against these Defendants or whether they may be dismissed at the

threshold.

Plaintiff has properly pleaded a claim against Defendants O’Neill and Reynoldsburg. In

this case, Plaintiff alleges that Chief O’Neill and the City of Reynoldsburg tolerated Mauger’s

and Downard’s repeated civil rights violations. (ECF No. 11 at ¶¶ 15, 16, 17). The facts alleged

by Plaintiff, taken together with the record developed in Mauger’s case,3 sufficiently state a

claim for which relief can be granted. Plaintiff does not appear to allege there was an official

policy in Reynoldsburg, but he does not have to. The allegations he pleads in the Complaint

satisfy the other elements laid out in Burgess because he alleges Defendants tolerated or

3 It was this Court that sentenced Mauger. See 2:16-CR-91. This Court may take notice of

proceedings in other courts of record. Granader v. Public Bank, 417 F.2d 75, 82-83 (6th Cir.

1969). In addition, this Court may “take notice that this [case] arises from the same facts that

formed the basis for the judgment” in Mauger’s case because it was this Court that sentenced

Mauger. Rodic v. Thistledown Racing Club, Inc., 615 F.2d 736, 738 (6th Cir. 1980) (taking

notice of an Ohio Court of Common Pleas case where the same facts formed the basis of the

federal case).

acquiesced to the rights violations, exhibited a policy of failing to train and supervise, and may

have ratified the illegal actions. Plaintiff has also plausibly alleged that the course of action set

by the policymaker was “the moving force behind or cause of” Plaintiff’s harm. Burgess, 735

F.3d at 479 (citing Pembaur, 475 U.S. at 484-85). Plaintiff lays out sufficient facts to support the

conclusion that the Chief of Police in Reynoldsburg is a policymaker, and Defendants do not

contest this conclusion or offer citations to rebut it.

There will necessarily be discovery on these questions, but at this stage, this Court finds

that Plaintiff has properly stated a claim for relief and the Amended Complaint survives the Rule

12 Motion to Dismiss. There is some evidence that O’Neill “implicitly authorized, approved, or

knowingly acquiesced” in the actions of Mauger and Downard and this Court may, drawing

inferences in Plaintiff’s favor, conclude that O’Neill “failed subsequently to punish the

responsible individuals.” Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989) (citing

Hays v. Jefferson Cty., Ky., 668 F.2d 869, 874 (6th Cir. 1982)). And in cases such as these,

“[c]ourts are not required to ignore the fact of life that politics can be and often are subtly but

effectively promulgated by seemingly benign conduct.” Id.

Therefore, Defendants O’Neill and Reynoldsburg’s Motion to Dismiss is denied. The

analysis below of the merits of Plaintiff’s claims are therefore with respect to both the municipal

defendants and Mauger. In other words, as to Plaintiff’s § 1983 claims, no defendant is dismissed

outright for failure to state claim.

1. Count One: Unreasonable Search & Seizure

Plaintiff’s first count is for unreasonable search and seizure. It appears he makes these

allegations based on the events surrounding his arrest and the subsequent search of his “person

and premises.” (ECF No. 11 at ¶ 22). To plead properly a Fourth Amendment violation as a

result of this search and seizure, Plaintiff would need to allege facts which, if true, would

establish that the Defendants violated his Fourth Amendment rights and that the “alleged

constitutional violation [was] taken under color of state law,” such that it is a cognizable claim

under 42 U.S.C. § 1983. Garcia v. Dykstra, 260 Fed. Appx. 887, 895 (6th Cir. 2008).

Before addressing these elements on the merits, Defendants have argued that Plaintiff’s

claim is time-barred, and so this Court first turns to the statute of limitations. Defendants argue

that any search and seizure surrounding Plaintiff’s arrest must have occurred on or before the

arrest. (ECF No. 42 at 5). Plaintiff was first arrested on May 19, 2015. (ECF No. 11 at ¶ 6).

Plaintiff also says, in his memorandum contra, that the “unlawful residence search based on a

false search-warrant affidavit” was on November 7, 2014. (ECF No. 44 at 3).

In states like Ohio, which have “multiple statutes of limitations for personal injury

actions, the appropriate state statute of limitations to borrow for claims brought under 42 U.S.C.

§ 1983 is the residual or general personal injury statute of limitations, not any statute of

limitations for specific intentional torts.” Browning v. Pendleton, 869 F.2d 989, 991 (6th Cir.

1989) (citing Owens v. Okure, 488 U.S. 235 (1989)). Under the Ohio Revised Code, the

applicable statute of limitations is two years. O.R.C. § 2305.10. Therefore, because Plaintiff has

indicated that the residence search in question was on November 7, 2014, and his Complaint was

not filed until July 11, 2017, this claim is time-barred. As to Count One, Defendants’ Motions to

Dismiss are granted.

2. Count Two: Unconstitutional Taking of Property

a. Fifth Amendment Claim

Plaintiff’s second count is for unconstitutional taking of property. Plaintiff alleges that

the Defendants “unlawfully seize[d] Plaintiff’s property without just compensation,” and that

Defendants were acting under color of state law. (ECF No. 11 at ¶¶ 27, 28). Defendants argue

first that this claim is time-barred: because the events must have taken place before the First

Indictment (April 24, 2015) and the First Indictment was more than two years before the

Complaint was filed (July 11, 2017), the statute of limitations has run. Defendants argue in the

alternative that Plaintiff’s claim is not ripe, because he has not exhausted state remedies as

required by Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985).

As a threshold matter, the Fifth Amendment applies equally to uncompensated takings of

personal property, not just real property. Horne v. Dep’t of Agriculture, 135 S. Ct. 2419 (2015).

In addition, the Fifth Amendment’s prohibition on uncompensated takings applies equally to the

states as to the federal government. Chicago, B & Q. R. Co. v. City of Chicago, 166 U.S. 226

(1897).

Taking Defendants’ ripeness argument first, this defense must fail. In June 2019, the

Supreme Court decided Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162 (2019). In Knick,

the Supreme Court explicitly overruled Williamson County, reasoning that “[f]ielty to the

Takings Clause and our cases construing it requires overruling Williamson County and restoring

takings claims to the full-fledged constitutional status the Framers envisioned….” Id. at 2170.

After Knick, “a property owner has a claim for a violation of the Taking Clause as soon as a

government takes his property for public use without paying for it.” Id. The dual-track required

by Williamson County whereby a property owner must first ripen her claims in state court is no

longer a prerequisite to having claims heard in federal court. Id.

It appears quite plain to this Court that, with respect to Plaintiff’s second count, Knick is

on point. In their Supplemental Brief, Defendants Reynoldsburg and O’Neill concede that

Plaintiff no longer needs to exhaust state remedies, but instead renew their argument in the

alternative that Plaintiff has failed to state a claim for which relief can be granted. (ECF No. 55).

Because Defendants’ argument that Plaintiff’s claim is not ripe has plainly been overruled by the

Supreme Court, this Court rejects this argument and concludes Plaintiff’s claim is ripe and

Plaintiff does not need to seek a state-court remedy first.

Defendants have also argued that Plaintiff’s claim is time-barred. This argument must fail

because Defendants have not started the proverbial clock at the right moment. To understand

this, consider the following three facts, drawn from the Amended Complaint construed in

Plaintiff’s favor: (1) that Defendants entered his residence on the basis of a warrant they obtained

under false pretenses; (2) that Defendants did in fact seize Plaintiff’s property; and (3) that

Plaintiff’s conviction in part depended on this seized property. If Plaintiff had brought an action

to reclaim his property while serving his sentence, that suit would have been barred by Heck

because a “judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence.” Heck v. Humphrey, 512 U.S. 477, 487. That is, if a court were to

determine that Plaintiff had the right to reclaim his property because of the manner in which it

was seized from him, such a determination “would necessarily imply the invalidity of his”

sentence. Therefore, logically, Plaintiff’s claim could not have accrued at the property’s initial

seizure.

Rather, this Court concludes that Plaintiff’s claim accrued when the proceedings against

him terminated in his favor. For this conclusion, this Court relies on McDonough v. Smith, 139 S.

Ct. 2149 (2019). McDonough is discussed in greater detail below because its holding relates to

petitioners who allege an unconstitutional deprivation of their liberty. But there is nothing in

McDonough to indicate that its logic is necessarily limited to liberty claims. Rather, the Supreme

Court’s conclusion in McDonough, as relevant to Plaintiff’s claim for unconstitutional taking of

property, relies on a principle from malicious prosecution cases. In such a circumstance, the

long-standing rule is that the petitioner cannot bring her claim until the proceedings have been

terminated in her favor.

Invoking Heck, the Supreme Court explained in McDonough that this favorable

termination requirement “is rooted in pragmatic concerns with avoiding parallel criminal and

civil litigation over the same subject matter and the related possibility of conflicting civil and

criminal judgments.” McDonough, 139 S. Ct. at 2157. See also Preiser v. Rodriguez, 411 U.S.

475, 490 (1973) (citing a “strong policy requiring exhaustion of state remedies…to avoid

unnecessary friction between the federal and state court systems”); Younger v. Harris, 401 U.S.

37, 43 (1971) (noting that “Congress has, subject to few exceptions, manifested a desire to

permit state courts to try state cases free from interference by federal courts.”). Had Plaintiff

tried to raise his takings claim before his exoneration, it would have been barred by Heck.

Therefore, logically, he did not have a “‘complete and present cause of action’ to bring a …

challenge to criminal proceedings while those criminal proceedings were ongoing. Only once the

criminal proceeding has ended in the defendant’s favor, or a resulting conviction has been

invalidated within the meaning of Heck, will the statute of limitations begin to run.”

McDonough, 139 S. Ct. at 2158 (citing Wallace v. Kato, 549 U.S. 384, 388 (2007)).

Nothing in the logic of McDonough is necessarily limited to a deprivation of liberty claim

and therefore this Court finds the analogy applies to Plaintiff’s claim for unconstitutional taking

of property. By the logic in McDonough, Plaintiff’s claim accrued when the prosecutor entered

the nolle prosequi in December 2016. His Complaint, filed seven months later, was therefore

timely.

On the face of the Complaint, this Court cannot rule out the possibility that Plaintiff’s

claim for unconstitutional taking of property would have been barred by Heck because a

judgment in his favor would have undermined the then-valid conviction. If Defendants can show

otherwise after discovery, this Court will entertain those arguments on a Motion for Summary

Judgment.

b. Fourth Amendment Claim

In the alternative, the unlawful seizure of personal property is equally cognizable as a

Fourth Amendment claim. Generally, plaintiffs may plead in the alternative. See Fed. R. Civ. P.

8(d)(2). Either construction of Plaintiff’s claim – under the Fifth Amendment or under the Fourth

Amendment – is sufficient to survive Defendants’ Motion. Either because Plaintiff has properly

alleged a Fifth Amendment taking or because he has alleged a Fourth Amendment seizure,

Defendants’ Motion as to Count Two is denied.

A Fourth Amendment seizure of property “occurs when there is some meaningful

interference with an individual’s possessory interests in that property.” United States v.

Jacobsen, 466 U.S. 109 (1984). In the Amended Complaint, Plaintiff properly pleads facts

which, if proven, would constitute a Fourth Amendment seizure of his personal property. The

items Plaintiff alleges were seized from his home and not returned are not the types of property

that would necessarily be the subject of a Motion to Suppress. (ECF No. 11 at ¶ 12) (alleging the

seizure of “various and sundry personal property, including $2800 in cash; $4350 in jewelry...;

$1250 in laptop computers; and a collection of old coins valued at $300”). Therefore, if Plaintiff

had contested the seizure of this property under the Fourth Amendment before he was nolle

prossed, that suit would have been barred by Heck, by the logic outlined above.

This Court concludes that, whether under the Fourth Amendment or under the Fifth

Amendment, Plaintiff has properly stated a claim for relief, alleging that Defendants

unconstitutionally seized or effected a taking of his personal property. This claim accrued when

the proceedings against him terminated in his favor with the nolle prosequi. Therefore, his

Complaint was timely filed. Defendants’ Motions to Dismiss are denied.

3. Count Three: Unconstitutional Taking of Liberty

Plaintiff’s third count is for unconstitutional taking of liberty. He alleges that, under color

of state law, Defendants acted unlawfully to take his liberty in violation of the Fifth Amendment.

(ECF No. 11 at ¶¶32-36). The question is when such a claim begins to accrue. See Wallace, 549

U.S. at 388 (concluding that “the accrual date of a § 1983 cause of action is a question of federal

law that it not resolved by reference to state law”) (emphasis in the original). To determine

whether Plaintiff’s claim is time-barred, this Court must first determine what § 1983 cause of

action he is bringing, and when that claim accrued.

This question was also just recently answered by the Supreme Court when it decided

McDonough, building on Wallace and Manuel v. Joliet, 137 S. Ct. 911 (2017). Wallace

concluded that “the standard rule” is that a plaintiff’s § 1983 claim accrues “when the plaintiff

has a complete and present cause of action.” 549 U.S. at 388 (internal quotation omitted). Courts

must first “identify the specific constitutional right at issue.” Manuel, 137 S. Ct. at 920 (quoting

Albright v. Oliver, 510 U.S 266, 271 (1994)) (internal quotation marks omitted). In McDonough,

the plaintiff’s fabricated-evidence claim was understood to arise under the Due Process Clause of

the Fifth Amendment. McDonough, 139 S. Ct. at 2155. The McDonough court concluded that a

plaintiff has a “complete and present cause of action…only once the criminal proceedings

against him terminated in his favor.” Id. at 2159.

With McDonough as with Knick, this Court informed the parties at a telephonic status

conference that the outcome of the case had the potential to be dispositive in this matter. (ECF

No. 53). In their supplemental brief filed after this Court resumed consideration of this matter,

Defendants attempt to argue that McDonough does not apply to the instant matter because

Plaintiff has not asserted a fabricated evidence claim. (ECF No. 55 at 3). To the contrary, this

Court finds Plaintiff has done exactly this, stating in his Amended Complaint that “Mauger,

alone and/or with others including Downard, caused false search warrants to be presented to

judges…, executed search warrants he knew to be based on false information, including the

Pippin search warrant…”. (ECF No. 11 at ¶ 11). And because McDonough squarely addresses

the statute of limitations in fabricated-evidence cases, this Court finds McDonough controls the

analysis here.

As discussed above, McDonough held that where plaintiff presents a fabricated-evidence

claim that results in false imprisonment, the statute of limitations begins to run only when the

criminal proceedings terminate in the plaintiff’s favor. This is squarely on-point with the facts of

this case. The question, then, is whether Plaintiff filed his Complaint within two years of the

proceedings terminating in his favor. This Court concludes he has. After the First Indictment

(April 2015) and arrest (May 2015), Plaintiff was sentenced in September 2017. He was nolle

prossed in December 2016 and filed his Complaint in July 2017. The proceedings against him

that are the subject of this litigation are the proceedings that terminated in his favor with the

nolle prosequi in December 2016. Because Plaintiff filed his Complaint within two years of the

nolle prosequi, Count III is not time-barred and Defendants’ Motion is denied.

The final issue here is that the First Indictment and the Second Indictment have a

paragraph in common. Therefore, inasmuch as Plaintiff avers he is challenging only the First

Indictment, he is also, by the letter of the indictments, challenging the paragraph in the Second

Indictment to which he pleaded guilty. Defendants argue that because Plaintiff pleaded guilty, he

has admitted the facts of the common paragraph and therefore is estopped from challenging it.

This will be an issue for discovery. The question is where the information for that

common paragraph came from. To the extent that the information that forms the basis of the

common paragraph comes from an independent and valid source – a non-poisonous tree, in

Fourth Amendment terms – Plaintiff may maintain that the First Indictment was fabricated while

nevertheless not contesting the source of his guilty plea. But if the common paragraph was also

fabricated, Plaintiff’s claim as to that paragraph is barred because of his guilty plea. In this case,

the question would be one of damages, rather than liability. These are questions that can only be

answered with discovery. At this stage, it suffices that Plaintiff has stated a claim for relief

notwithstanding his guilty plea because he has outlined how the information in the common

paragraph could have been fabricated. Defendants may rebut this with a Motion for Summary

Judgment.

B. Ohio Constitution Claims (Counts One, Two, Three)

In his Complaint, Plaintiff alleges violations of the United States Constitution and

appears simultaneously to allege violations of the Ohio State Constitution. (ECF No. 11 at ¶¶22,

28, 29, 31, 33, 34, 36). Plaintiff specifically cites Article I, Sections 1 and 19 of the Ohio

Constitution.

Ohio courts have held that a “constitutional provision is self-executing when it is

complete in itself and becomes operative without the aid of supplemental or enabling

legislation.” State v. Williams, 728 N.E. 2d 342, 352. The test is whether “the words of a

constitutional provision [are] sufficiently precise in order to provide clear guidance to courts

with respect to their application” for a provision to be self-executing. Id. Accordingly, Ohio

courts have held that Article I, Section 1 is not self-executing. Concluding that, for example,

“[h]appiness is such a broad concept that no court could ever adequately protect every

individual’s happiness without transgressing the happiness of another,” the Williams court found

that Article I, Section 1 is not self-executing. Id. at 355-56.

By this test, the language of Section 19 would seem sufficiently clear and definite to

provide courts adequate guidance and render the provision self-executing. In dicta, the Williams

court suggests Section 19 might be self-executing. Williams, 728 N.E. 2d. at 354 (comparing the

protection of property in Section 19 to the protection of happiness in Section 1). Another court

examined a plaintiff’s takings claim under both the Fifth Amendment and Section 19, and

thereby at least assuming without deciding that Section 19 is self-executing. Brkic v. Cleveland,

124 Ohio App. 3d. 271, 279 (1997). More often, cases in Ohio dispose of the plaintiff’s takings

claim because the plaintiff has insufficiently exhausted state remedies but, per Knick, it is unclear

that this is any longer a requirement. Defendants implicitly concede as much, rooting their

objection to the Section 19 claim in Plaintiff’s failure to seek mandamus rather than an argument

that the provision is not self-executing. (ECF No. 42 at 6-7).

For these reasons, Plaintiff’s claims under Article I, Section 1 of the Ohio Constitution

are dismissed, but as to Article I, Section 19, Defendants’ Motion is denied.

C. Section 1985 Conspiracy Claim (Count Five)

Plaintiff alleges Defendants O’Neill and Reynoldsburg are liable for violations of 42

U.S.C. § 1985 for conspiring to interfere with his civil rights. Section 1985 creates “a cause of

action for a conspiracy between two or more persons to deprive another of the equal protection

of the laws.” Jackson v. City of Cleveland, 925 F.3d 793, 817 (6th Cir. 2019). The general rule is

that “in civil conspiracy cases[,] a corporation cannot conspire with its own agents or

employees.” Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. Of Educ., 926 F.2d 505,

509 (6th Cir. 1991). This is because if “all of the defendants are members of the same collective

entity, there are not two separate ‘people’ to form a conspiracy.” Johnson v. Hills & Dales Gen.

Hosp., 40 F.3d 837, 839-40 (6th Cir. 1994). This is true whether the claim is brought under §

1985(2) or § 1985(3). Jackson, 925 F.3d at 817. Because Defendants O’Neill and Reynoldsburg

are part of the same corporate entity, the intra-corporate conspiracy doctrine bars Plaintiff’s suit.

Accordingly, Count Five is dismissed. Johnson, 40 F.3d AT 839-40.

D. Tort Claims (Counts Four, Six, Seven, Eight, Nine, Ten)

Plaintiff alleges six torts. Again, this Court first considers whether these claims may

stand against all of the Defendants, as a threshold matter.

On these claims, Defendant O’Neill is immune by statute. The Ohio Revised Code

provides that in “a civil action brought against…an employee of a political subdivision to

recover damages for…loss to…property allegedly caused by an act or omission in connection

with a governmental or proprietary function, the following defenses or immunities may be

asserted to establish nonliability…” O.R.C. 2744.03. The provision continues to enumerate that

“the employee is immune from liability unless one of the following applies: (a) The employee’s

acts or omissions were manifestly outside the scope of the employee’s employment or official

responsibilities; (b) The employee’s acts or omissions were with malicious purpose, in bad faith,

or in a wanton or reckless manner.” O.R.C. 2274.03(A)(6). Plaintiff specifically alleges that

Defendant O’Neill was acting under color of law, and Plaintiff does not allege that O’Neill

himself acted “with malicious purpose, in bad faith, or in a wanton or reckless manner.” There

are no facts in the Complaint to support that O’Neill himself engaged in any such behavior.

Defendant O’Neill is therefore immune by statute, and as to Counts Four, Six, Seven, Eight,

Nine, and Ten his Motion to Dismiss is granted.

Defendant Mauger argues that Plaintiff’s claims are time barred. The Ohio Revised Code

specifies that actions for damages against “a political subdivision to recover damages…shall be

brought within two years after the cause of action accrues, or within any applicable shorter

period of time for bringing the action provided by the Revised Code.” O.R.C. § 2744.04 (A).

Then, in sub-section (B), the statute provides that a complaint “filed in a civil action against a

political subdivision or an employee of a political subdivision to recover damages…”. O.R.C. §

2744.04(B) (emphasis supplied). As a matter of statutory interpretation, this Court would have

concluded that Mauger may avail himself of (B) but not (A) because he is not himself a “political

subdivision” and, giving meaning to every word in a statute while understanding that the

legislature specifically chooses the words it means, logically (B) means to include employees

while (A) means to refer only to political subdivisions.

Somewhat inexplicably, this seems not to be the practice of at least some Ohio courts

interpreting this provision. Instead, these Ohio courts have read even (A) to include employees.

In Read v. Fairview Park, the Eighth District Court of Appeals concluded that “the specific two-

year statute of limitations in R.C. 2744.04(A) applies to abuse-of-process claims against political

subdivisions and their employees.” 146 Ohio App. 3d 15, 19 (2001) (emphasis in original).

Subsequent courts agreed and expanded this interpretation, concluding that the specific statute of

limitations in 2744.04 “prevails over the general statutes of limitations contained in R.C. Chapter

2305.” Davis v. Clark Cty. Bd. of Commrs., 2013-Ohio-2758, ¶ 23 (emphasis in original). The

Davis court also concluded that § 2744.04(A) “applies to political subdivisions and their

employees.” Id. See also Pearson v. Columbus, 2014-Ohio-5563, ¶ 10.

There is some dispute within the Ohio courts about the reach of Read. In Dolan v.

Glouster, the Fourth District “assume[d] Read does apply,” while detailing its shortcomings in a

footnote: “the Ohio Supreme Court does not appear to have ruled on that proposition and the

Read case is binding only in the Eighth district. … There has been some expression of doubt in

at least one other district as to whether it applies.” 2014-Ohio-2017, n.20. Indeed, the dissent in

Davis argues that, as a matter of statutory interpretation, the majority reached an absurd result by

reading (A) and (B) as though the language of both included employees: “The legislature knew it

could include employees of the political subdivision in subpart (A) since it did so in subpart (B).

I have to assume that the failure to include such language was purposeful and that R.C.

2744.04(A) does not affect employees of a political subdivision.” Davis, 2013-Ohio-2758, ¶36

(Froelich, J., concurring in part and dissenting in part).

This is not a question this Court can resolve in this matter, not least because it has not

been briefed by the parties – but also because these state law claims are only being considered in

this Court as a matter of supplemental jurisdiction.

1. Count Four: Deprivation of Right to Redress Grievances in Court

Plaintiff alleged that Defendants retaliated against him for filing suit against them by

unlawfully depriving him of his right to redress grievances in court. In the Sixth Circuit, there are

three elements to a retaliation claim:

(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.

Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (citing Bloch v. Ribar, 156 F.3d 673,

678 (6th Cir. 1998); Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 406 (6th Cir. 1998); Penny v.

United Parcel Serv., 128 F.3d 408, 417 (6th Cir. 1997); Yellow Freight Sys., Inc. v. Reich, 27

F.3d 1133, 1138 (6th Cir. 1994)). The First Amendment protects “the right of the people . . . to

petition the Government for a redress of grievances.” U.S. CONST. Amend. I. Thus, in the Sixth

Circuit, “[t]he threshold question in a right-to-petition case under the First Amendment caselaw

[sic] of this and other circuits is therefore ‘whether the plaintiff’s conduct deserves constitutional

protection.’” Campbell v. PMI Food Equip. Grp., 509 F.3d 776, 789 (6th Cir. 2007) (quoting

Reichert v. Draud, 701 F.2d 1168, 1170 (6th Cir. 1983)). The Sixth Circuit has consistently held

that a petition warrants First Amendment protection. See Campbell v. PMI Food Equip. Grp.,

509 F.3d 776, 789 (6th Cir. 2007) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 387 (6th Cir.

1999); Foraker v. Chaffinch, 501 F.3d 231, 235 (3d Cir. 2007)) (“The plain language of the First

Amendment makes clear that a ‘petition’ triggers the [first] amendment’s protections.”).

There are two types of right-to-petition claims that the Sixth Circuit has recognized:

right-to-speech claims and right-to-meaningful-access claims. In a right-to-speech claim, the

plaintiff must allege that the government took a specific, concrete action or threat that had a

“chilling effect” and denied plaintiff’s right to free speech protected by the Petition Clause. See

Laird v. Tatum, 408 U.S. 1, 11, 13-14 (1972); See also United Pub. Workers of Am. (C.I.O.) v.

Mitchell, 330 U.S. 75, 89 (1947). In a right-to-meaningful-access claim, the plaintiff must

establish that the defendant denied him or her meaningful access to the courts, preventing the

plaintiff from airing his or her grievances before the courts. See EJS Props., LLC v. City of

Toledo, 698 F.3d 845, 863 (6th Cir. 2012) (citing John L. v. Adams, 959 F.2d 228, 231-32 (6th

Cir. 1992); Silva v. Di Vittorio, 658 F.3d 1090, 1101-02 (9th Cir. 2011); Snyder v. Nolen, 380

F.3d 279, 291 (7th Cir. 2004)). As a threshold matter, it is not clear which of these claims

Plaintiff is attempting to raise in his Complaint.

In examining Plaintiff’s claim of retaliatory denial of his right to petition the court for

grievances, this Court first looks at whether Plaintiff engaged in protected conduct. Plaintiff

pleaded that he made a petition by presenting a claim for damages to Defendant City of

Reynoldsburg. (ECF No. 11 at ¶ 38). However, Plaintiff did not plead any “chilling effect”

stemming from Defendants’ conduct, so there is no right-to-speech claim. Plaintiff instead

alleged that he was deprived of his right to access the courts to redress his grievances but

provides only a legal conclusion with no supporting factual evidence. (Id. at ¶ 41). Next, this

Court looks to whether Defendants committed an adverse action against Plaintiff that deterred

him from pursuing his petition. Plaintiff pleaded that Defendants acted adversely to him by

collaborating to re-indict him but pleaded no facts suggesting that this action reasonably deterred

him from pursuing his claim. (Id. at ¶ 40). Lastly, this Court determines whether there is a causal

connection between Plaintiff’s protected conduct and the adverse action committed against him.

Plaintiff pleaded that “[Defendants] collaborated regarding Plaintiff’s pursuit of satisfaction of

his claim and decided to re-indict Plaintiff as a mean [sic] of dissuading him from obtaining

satisfaction of his claim in court.” (Id.). However, he pleaded no facts to support a connection

between the indictment and his claim. Also, he admitted in his memorandum contra that the

Second Indictment followed a controlled bUy in 2015. (ECF No. 44 at 4). Because Plaintiff has

failed to allege sufficient facts to support his legal conclusions, Defendants’ Motions are granted.

2. Count Six: Invasion of Privacy

Plaintiff alleges that Defendants, acting under color of state law, violated his right to

privacy. The Sixth Circuit requires a plaintiff pleading a § 1983 claim to establish that: (1) the

defendant acted under the color of state law; and (2) the defendant’s offending conduct deprived

plaintiff of a federally-guaranteed right. See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.

2008) (quoting Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998)). The Supreme Court

recognizes two types of privacy rights as protected by the constitution: the “independence in

making certain kinds of important decisions” and the “interest in avoiding disclosure of personal

matters.” Id. at 440 (quoting Whalen v. Roe, 429 U.S. 589, 599-600, 603-04 (1977)).

Invasion of privacy is an intentional tort. Therefore, as above, Chief O’Neill is immune

per O.R.C. § 2744.03(A)(6). As to Defendant Mauger, Plaintiff has failed to plead specific facts

to indicate that either of his specific privacy rights as recognized by Whalen were abridged by

Mauger. Plaintiff alleged that Defendants “wrongfully intrude[d] into Plaintiff’s life, liberty,

home, family, and/or private activities” but offered no facts to support this assertion and did not

plead that either of the recognized rights to privacy were violated. (Id.). Therefore, Plaintiff has

failed to state an adequate claim for invasion of privacy and Defendants’ Motions are granted.

3. Count Seven: False Light

Plaintiff alleges Defendants communicated and publicized his arrest and that, “as a

consequence of the publicity,” Plaintiff suffered damages and was “seriously aggrieved and

offended in the eyes of the community.” (ECF No. 11 at ¶¶ 56-60). In Ohio, a plaintiff must

establish a prima facie False Light Invasion of Privacy claim that: “(a) the false light in which

the other was placed would be highly offensive to a reasonable person, and (b) the actor had

knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false

light in which the other would be placed.” Welling v. Weinfeld, 2007-Ohio-2351, ¶ 61.

False Light is an intentional tort. Therefore, as above, Chief O’Neill is immune per

O.R.C. § 2744.03(A)(6). As above, this claim may be time-barred as to Mauger, even if this

Court does not apply the “political subdivision” statute of limitations to Mauger. Without

specific facts from the parties, this Court cannot know the dates on which the allegedly false

statements were made. Plaintiff had the burden of rebutting Mauger’s statute of limitations

argument, and he failed to do so. In the alternative, Plaintiff failed to plead specific facts to

indicate that the statements the officials made were knowingly false: just because Plaintiff

alleges he was falsely arrested does not compel the conclusion that the officers knowingly made

false statements about his arrest. For these reasons, Defendants’ Motions as to this count are

granted.

4. Count Eight: Intentional Infliction of Emotional Distress

Plaintiff argued that Defendants intentionally caused him severe emotional distress

through their conduct. In Ohio, a plaintiff claiming IIED must plead facts which establish that:

(1) the defendant either intended to cause emotional distress or knew or should have

known that actions taken would result in serious emotional distress to the plaintiff; (2) the

defendant’s conduct was extreme and outrageous; (3) the defendant’s actions were the

proximate cause of the plaintiff’s psychic injury; and (4) the mental anguish suffered by

the plaintiff was serious.

Siskie v. Old Dominion Freight Line, Inc., 170 F. Supp. 3d 1017, 1027 (N.D. Ohio 2016) (citing

Miller v. Currie, 50 F.3d 373, 377 (6th Cir. 1995)).

IIED is an intentional tort. As above, Chief O’Neill is immune by statute. Mauger argues

Plaintiff’s claim is time-barred. Again, Plaintiff has failed to rebut the statute of limitations

argument by providing specific facts to support the allegation that his IIED claim is not time-

barred. This Court surmises that the date on which Defendants could have intentionally caused

Plaintiff emotional distress was on or about the date of his arrest, which was more than two years

before this suit was filed. Without a more specific pleading from Plaintiff, he cannot properly

allege a claim for IIED. In the alternative, Plaintiff has failed to plead sufficient facts to

overcome a Rule 12 motion. Plaintiff’s Complaint is mostly legal conclusions, that Defendants’

conduct was “extreme and outrageous” and that Defendants’ conduct was the proximate cause of

his emotional distress. (ECF No. 11 at ¶¶63, 64). Plaintiff’s conclusory legal allegations do not

provide adequate factual support for his pleadings and, as a result, Defendants’ Motions to

Dismiss are granted.

5. Count Nine: Loss of Consortium

Plaintiff also alleges Defendants’ conduct injured him by depriving him of his

relationship with his wife. A loss of consortium claim requires a plaintiff to prove that they were

deprived of “society, services, sexual relations, and conjugal affection, which includes

companionship, comfort, love and solace.” Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St. 3d. 84,

92-93. However, the proper plaintiff for a loss of consortium claim is not brought by the plaintiff

who was herself injured; rather, the claim is more appropriately brought by the spouse of the

injured. The Supreme Court of Ohio explained this in Bowen, noting that “a claim for loss of

consortium is derivative in that the claim is dependent upon the defendant’s having committed a

legally cognizable tort upon the spouse who suffers a bodily injury.” Id. at 93.

In the instant case, Plaintiff was the injured party, and his spouse is not a party to this

suit. Plaintiff cannot bring a claim for loss of consortium on his spouse’s behalf. Because

Plaintiff has failed to state a claim for which relief can be granted, Defendants’ Motions as to this

count are granted.

6. Count Ten: Conversion

Plaintiff also alleges Defendants are liable for the tort of conversion because Defendants

unlawfully seized Plaintiff’s property and “used such property for public and/or personal

purposes without authorization, consent, and/or permission” of Plaintiff. (ECF No. 11 at ¶ 74).

For a Conversion claim in Ohio, a plaintiff must establish that: (1) the plaintiff owned or had the

right to possess the property when it was converted; (2) the defendant converted the property

either through a wrongful act or by violating plaintiff’s property rights; and (3) that the plaintiff

was harmed by the conversion and thus is entitled to damages. 6750 BMS, L.L.C. v. Drentlau,

2016-Ohio-1385, ¶ 29.

Chief O’Neill is immune by statute. Defendant Mauger argues that Plaintiff’s claim is

time-barred. As to this claim, this Court can squarely address this argument on the merits

because regardless of whether Mauger can avail himself of the political subdivision rule, the

statute is clear that the statute of limitations is “two years after the cause of action accrues.”

O.R.C. § 2744.04(A) (emphasis added). Per the analysis above of Plaintiff’s takings claim, his

claim for conversion did not accrue until the proceedings terminated in his favor. And on this

count, Plaintiff has alleged sufficient facts to state a claim: for example, he details the items he

alleges were taken and not returned. In addition, even under the most stringent reading of the

statute of limitations, Plaintiff’s motion was timely because it was filed approximately seven

months after the nolle prosequi. Defendant Mauger’s Motion is denied.

D. Ohio Statutory Claims (Counts Eleven & Twelve)

Plaintiff brings two claims under the Ohio Revised Code: one for Civil Damages under

O.R.C. 2307.60, and one for Indemnification under O.R.C. 2744.07(A). For Civil Damages, the

statute provides that “[a]nyone injured in person or property by a criminal act has, and may

recover full damages in, a civil action…”. O.R.C. 2307.60. And the Indemnification statute

provides that “a political subdivision shall provide for the defense of an employee…in any civil

action or proceeding which contains an allegation for damages for injury, death, or loss to person

or property caused by an act or omission in connection with a governmental or proprietary

function.” O.R.C. 2744.07(A).

Plaintiff’s Indemnification claim relies on facts yet to be determined. As above, Plaintiff

has adequately stated a claim to survive the Rule 12 motion. However, he has not – and indeed,

could not, at the Motion to Dismiss stage – establish all the elements required by these statutory

provisions. This is not uncommon when plaintiffs bring claims for indemnification, “depending

as they do on the favorable adjudication of underlying tort claims.” Jackson v. City of Cleveland,

925 F.3d 793, 808 (discussing 2744.07(B)). Essentially, Plaintiff’s claim for indemnification is

not ripe. The parties agree on this much. Defendants assert there is no third-party claim for

Indemnification, but also argue, in the alternative, that any such right would attach after the

judgment is final (ECF No. 42 at 23). Plaintiff argues he should be allowed to “proceed against

the City in the event of judgment against Mauger.” (ECF No. 44 at 8). For these reasons,

Plaintiff’s claim for Indemnification is not dismissed, but its final determination will depend on

the adjudication of the torts claims and any intervening change in Ohio state law. See Jackson,

925 F.3d at 806-09 (discussing the ripeness of indemnification claims and concluding that these

must “not be adjudicated on the merits at the pleading stage, given the unsettled condition of

state law.”).

Plaintiff has also stated a claim for civil damages. Defendants O’Neill and Reynoldsburg

argue that because there is only a cause of action following injury by a criminal act, and there

has been no criminal act, Plaintiff has failed to state a claim. Defendant Mauger does not appear

to make an argument that Plaintiff cannot bring this Civil Damages claim against him; by

contrast, there has been a criminal act committed by Mauger. Therefore, with respect to this

count, Defendants O’Neill and Reynoldsburg are dismissed, but Defendant Mauger is not.

IV. CONCLUSION

For the foregoing reasons, Defendants’ Motions to Dismiss are granted in part and denied

in part. Plaintiff’s first count for unreasonable search and seizure under the U.S. Constitution is

time barred and so Defendants’ Motion to Dismiss is GRANTED . Plaintiff’s second and third

counts for violations of his U.S. constitutional rights all properly state claims against all

remaining defendants and therefore as to Counts Two and Three Defendants’ Motions are

DENIED. As to the Ohio Constitutional claims asserted in Counts One, Two and Three,

Defendants’ Motion to Dismiss is GRANTED IN PART AND DENIED IN PART as

discussed above. Plaintiff’s state law tort claims fail to state a claim against Defendant O’Neill

because he is immune by statute. Defendant O’Neill’s Motion to Dismiss is GRANTED as to

Counts Four, Six, Seven, Eight, Nine, and Ten. Because of the intra-corporate conspiracy

doctrine, all Defendants’ Motion as to Count Five is GRANTED. Most of Plaintiff’s state law

torts claims fail to state a claim against Defendant Mauger because Plaintiff alleges legal

conclusions and not sufficient facts. As a result, Defendant Mauger’s Motion to Dismiss is

GRANTED as to Counts Four, Six, Seven, Eight, and Nine. Defendant Mauger’s Motion to

Dismiss is DENIED as to Count Ten because Plaintiff properly states a claim for relief.

Defendants O’Neill and Reynoldsburg’s Motion to Dismiss as to Count Eleven is GRANTED

because Plaintiff fails to state a claim for relief; however, Plaintiff maintains a claim for civil

damages against Defendant Mauger. Count Twelve for Indemnification is premature and

therefore held in abeyance pending the adjudication of the underlying facts, but no Motion to

Dismiss is granted at this time as to Count Twelve

Therefore, the remaining claims are: Counts One (as to claims under Article I Section 19

of the Ohio Constitution only against all remaining defendants), Two, and Three (against all

remaining defendants); Counts Ten, Eleven (Mauger only); with Count Twelve being held in

abeyance. The claims being dismissed are: Count One (in part against all remaining defendants);

Counts Four, Five, Six, Seven, Eight, and Nine (all remaining defendants); Count Ten (O’Neill

only, no claim brought as to the city); and Count Eleven (Reynoldsburg and O’Neill).

IT IS SO ORDERED.

s/Algenon L. Marbley

ALGENON L. MARBLEY

CHIEF UNITED STATES DISTRICT JUDGE

DATE: September 27, 2019