Grimm v. Cappelli

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

DALE GRIMM,

Plaintiff, Case No. 3:20-cv-3

vs.

BETH CAPPELLI, et al., District Judge Walter H. Rice

Magistrate Judge Michael J. Newman

Defendants.

REPORT AND RECOMMENDATION! THAT: (1) DEFENDANT CAPPELLI’S

MOTION TO DISMISS (DOC. 3) BE GRANTED; (2) PLAINTIFF’S CLAIMS AGAINST

DEFENDANT CAPPELLI BE DISMISSED; (3) CLAIMS AGAINST DEFENDANTS

SAMPSON AND DONNATELLI BE DISMISSED FOR FAILURE OF SERVICE OF

PROCESS UNDER FED. R. CIV. P. 4(M); AND (4) THIS CASE BE TERMINATED ON

THE COURT’S DOCKET

This pro se civil case is before the Court on the motion to dismiss filed by Defendant Beth

Cappelli on January 6, 2020. Doc. 3. Plaintiff filed a memorandum in opposition to Defendant’s

motion to dismiss. Doc. 7. Defendant did not file a reply and the time for doing so has expired.

The Court has carefully considered the foregoing, and Defendant’s motion 1s now ripe for decision.

1.

A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the

sufficiency of the complaint and permits dismissal for “failure to state a claim upon which relief

can be granted.” To show grounds for relief, Fed. R. Civ. P. 8(a)(2) requires that the complaint

contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”

' Attached hereto is a NOTICE to the parties regarding objections to this Report and

Recommendation.

While Fed. R. Civ. P. 8 “does not require ‘detailed factual allegations’ . . . it demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Pleadings offering

mere “labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will

not do.’” Id. (citing Twombly, 550 U.S. at 555). In determining a motion to dismiss, “courts ‘are

not bound to accept as true a legal conclusion couched as a factual allegation.’” Twombly, 550

U.S. at 555 (citing Papasan y. Allain, 478 U.S. 265, 286 (1986)). Further, “[flactual allegations

must be enough to raise a right to relief above the speculative level.” Id.

In order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Igbal, 556 U.S. at

678. In addition to well-pleaded allegations in the complaint, the Court may also consider “matters

of public record, orders, items appearing in the record of the case, and exhibits attached to the

complaint,” as well as documents attached to a defendant’s motion to dismiss that are important

to the plaintiff's claims or if referred to in the complaint. Amini v. Oberlin College, 259 F.3d 493,

502 (6th Cir. 2001) (citation omitted); Composite Tech., L.L.C. v. Inoplast Composites S.A. de

C.V., 925 F. Supp. 2d 868, 873 (S.D. Ohio 2013).

A claim is plausible where “plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Igbal, 556 U.S.

at 678. Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer

possibility that a defendant has acted unlawfully.” Jd. “[W]here the well-pleaded facts do not

permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -

- but it has not ‘show[n]’ -- ‘that the pleader is entitled to relief.’” Jd. at 679 (alteration in original)

(citing Fed. R. Civ. P. 8(a)(2)).

Il.

The entirety of this action arises from Plaintiff’ s visit to the Fairborn, Ohio Municipal Court

on December 18, 2017 and his encounter with a security official upon entering the courthouse.

See doc. 2. Specifically, Plaintiff alleges that, upon entering the Fairborn Municipal Court that

day, Defendant Bob Sampson (presumably a security officer at the courthouse) made Plaintiff

empty his pockets and walk through “a portal-type device” (presumably a standard metal detector).

Id. When the metal detector “made a beeping sound as [he] walked through,” Defendant Sampson

“waved a wand-type device around [his] body.” Jd.

Upon leaving the courthouse, Plaintiff “confronted” Sampson and “reminded him that, in

order to look through [Plaintiffs] pockets, [Sampson] was required by law to have a warrant.” Id.

Later, Plaintiff allegedly wrote a letter to Defendant Beth Cappelli, a judge at the Fairborn

Municipal Court, “outlining his experience . . . and requesting information on . . . Sampson so that

action could be taken against him.” Jd. Defendant Mark Donnatelli -- whose affiliation with the

Fairborn Municipal Court 1s not alleged by Plaintiff -- allegedly responded to Plaintiffs letter by

citing rules adopted by the Supreme Court of Ohio regarding courthouse security measures. Id.

On December 4, 2019, Plaintiff filed this action for compensatory damages in the Greene

County, Ohio Court of Common Pleas against Defendants Sampson, Cappelli, and Donnatelli

alleging a violation of his rights under the Fourth Amendment of the United States Constitution

and Article I, Section 14 of the Ohio Constitution to be free from unreasonable searches and

seizures. Id. On January 3, 2020, Defendant Cappelli appeared in the state court action and timely

removed the case to this Court and moved to dismiss the claims against her. See docs. 1,3. That

motion will be addressed infra.

Defendants Sampson and Donnatelli have not appeared in this action and, absent evidence

of record showing otherwise, it appears that Plaintiff has not successfully served them as required.

Pursuant to Fed. R. Civ. P. 4(m), “[i]f a defendant is not served within 90 days after the complaint

is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action

without prejudice against that defendant or order that service be made within a specified time.” In

cases removed to a federal court from a state court, the 90-day period set forth in Rule 4(m)

commences on the date removal is complete. See Medlen v. Estate of Meyers, 273 F. App’x 464,

470 (6th Cir. 2008).

This case having been removed to this Court on January 3, 2020, the time in which Plaintiff

was required to serve Defendants Sampson and Donnatelli under Fed. R. Civ. P. 4(m) expired on

April 2, 2020. The Court previously notified Plaintiff of his duty to complete service of process

on Defendants Sampson and Donnatelli on or before April 2, 2020 and also notified him that his

failure to do so could result in the dismissal of his claims against them. Doc. 8 at PageID 57.

Because Defendants Sampson and Donnatelli were not served on or before April 2, 2020, and

because Plaintiff has not requested an extension of time to complete such service, the undersigned

RECOMMENDS that claims against Defendants Sampson and Donnatelli be DISMISSED

pursuant to Fed. R. Civ. P. 4(m).

Il.

Initially, the Court addresses Plaintiffs claim that the conduct at issue in this case violates

Article I, Section 14 of the Ohio Constitution.’ Doc. 2 at PageID 33-34. Court have routinely

noted that “violations of rights secured under the Ohio Constitution do not, in and of themselves,

confer a private right of damages[.]” Wesaw v. City of Lancaster, No. 22005CV0320, 2005 WL

3448034, at *5 (S.D. Ohio Dec. 15, 2005) (see also Provens v. Stark Cnty. Bd. of Mental

* Article I, Section 14 of the Ohio Constitution states that “|t]he right of the people to be secure in

their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be

violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly

describing the place to be searched, and the person and things to be seized.” Ohio Const. art I, § 14.

Retardation & Developmental Disabilities, 594 N.E.2d 959, 966 (Ohio 1992) (finding “no private

constitutional remedy for the plaintiff-appellant’s claims in that the Ohio Constitution itself does

not provide for a civil damage remedy”). Accordingly, Plaintiff fails to state a claim for damages

under the Ohio Constitution and, therefore, such claim must be dismissed.*

IV.

The Court next addresses Plaintiffs claim alleging that his Fourth Amendment rights under

the United States Constitution were violated. Doc. 2 at PageID 33-34. Plaintiff appears to assert

such claim under 42 U.S.C. § 1983, which “provides for a private right of action against any person

who, under color of state law, violates another person’s federal rights.” Hardin v. Straub, 954 F.2d

1193, 1198 (6th Cir. 1992).

“To prevail on a § 1983 claim, a plaintiff must establish that a person acting under color of

state law deprived the plaintiff of a right secured by the Constitution or laws of the United States.”

Green v. Throckmorton, 681 F.3d 853, 859-60 (6th Cir. 2012) (citing Waters v. City of Morristown,

Tenn., 242 F.3d 353 (6th Cir. 2001)). In other words, to state a claim under § 1983, a plaintiff

must allege “(1) deprivation of a right secured by the federal Constitution or laws of the United

States, and (2) that the deprivation was caused by a person while acting under color of state law.”

Christy v. Randlett, 932 F.2d 502, 504 (6th Cir. 1991).

Notably, individuals against whom civil rights claims are asserted under § 1983 are “only

liable for his or her own misconduct.” [gbal, 556 U.S. at 677; see also Marcilis v. Twp. of Redford,

693 F.3d 589, 596 (6th Cir. 2012). As a result, claims asserting “violations of constitutional rights

must allege, with particularity, facts that demonstrate what each defendant did to violate the

asserted constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008). Thus, the

? Notably, such conclusion would likewise apply to Plaintiffs claims against Defendants Sampson

and Donnatelli. ;

mere “listing [of] names in the caption of the complaint and alleging constitutional violations in

the body of the complaint is not enough to sustain recovery[.|” Gilmore v. Corrections Corp. of

Am., 92 F. App’x 188, 190 (6th Cir. 2004) (citing Flagg Bros. v. Brooks, 436 U.S. 149 (1978));

see also Frazier v. Mich., 41 F. App’x 762, 764 (6th Cir. 2002).

Here, Plaintiff alleges that Judge Cappelli violated the Fourth Amendment “by approving

illegal searches” at the courthouse. Doc. 2 at PageID 33. While § 1983 liability “cannot be

premised solely on a theory of respondeat superior, or the right to control employees[,]” it does

extend to instances where a supervisory official “encouraged the specific incident of

misconduct[,]” such as where the supervisory official “at least implicitly authorized, approved, or

knowingly acquiesced in the unconstitutional conduct of the offending officers.” Heyerman v.

Cnty. of Calhoun, 680 F.3d 642, 647 (6th Cir. 2012).

Even if the Court were to assume, arguendo, that Plaintiff adequately alleges Defendant

Cappelli “approved” the routine security search at issue, to prevail, Plaintiff must still overcome

questions of whether Defendant Cappelli, in her individual capacity as a municipal judge, is

entitled to certain immunities. For instance, “[1i]t is a well-entrenched principle in our system of

jurisprudence that judges are generally absolutely immune from civil suits for money damages[, |”

including § 1983 claims. Barnes v. Winchell, 105 F.3d 1111, 1115 (6th Cir. 1997). Such immunity

applies only to a judge’s “actions undertaken in a judicial capacity[,|” id. at 1116, and does not

apply to acts “not taken in the judge’s judicial capacity” or where an act, “though judicial in nature,

[is] taken in the complete absence of all jurisdiction.” Ireland v. Tunis, 113 F.3d 1435, 1440 (6th

Cir. 1997) (citing Mireles v. Waco, 502 U.S. 9, 11-12 (1991)).

Again, assuming, arguendo, that Defendant Cappelli did approve the subject courthouse

security measures at the Fairborn Municipal Court, a question exists as to whether such act is

judicial in nature or administrative in nature. Whether or not an act is judicial or not requires

consideration of two factors: “[1] the nature of the act itself, i.e., whether it is a function normally

performed by a judge, and. . . [2] the expectations of the parties, i.e., whether they dealt with the

judge in his [or her] judicial capacity.” Stump v. Sparkman, 435 U.S. 349, 362 (1978). The

undersigned need not reach that question of whether the approval of routine courthouse security

measures is a “judicial act” because, even assuming, arguendo, that absolute judicial immunity

does not apply, Defendant Cappelli is otherwise entitled to qualified immunity.

“It is undisputed that a judicial officer performing administrative acts, like any

governmental official, may assert the defense of qualified immunity.” Mumford v. Zieba, 4 F.3d

429, 432 (6th Cir. 1993). Qualified immunity immunizes state actors “from civil liability unless,

in the course of performing their discretionary functions, they violate the plaintiff's clearly

established constitutional rights.” Aldini v. Johnson, 609 F.3d 858, 863 (6th Cir. 2010). Simply

put, qualified immunity “protects ‘all but the plainly incompetent or those who knowingly violate

the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (citing Malley v. Briggs, 475 U.S. 335,

341 (1986)). State actors are entitled to qualified immunity unless (1) “the facts alleged make out

a violation of a constitutional right”; and (2) “the right at issue was ‘clearly established’ when the

event occurred such that a reasonable [state actor] would have known that his [or her] conduct

violated it[.]” Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013).

Plaintiff fails to allege facts showing that Defendant Cappelli -- or either of the other

Defendants -- violated Plaintiffs clearly established Fourth Amendment rights. The Fourth

Amendment states that, “[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause[.]” U.S. Const. amend. IV; see also Florida v. Jardines, 569 U.S.

1, 5 (2013). “The Fourth Amendment is not, of course, a guarantee against all searches and

seizures, but only against unreasonable searches and seizures.” United States v. Sharpe, 470 U.S.

675, 682 (1985). In fact, the Supreme Court of the United States has repeatedly suggested that

routine suspicionless searches “at entrances to courts and other official buildings” are reasonable

and not violative of the Fourth Amendment. Chandler v. Miller, 520 U.S. 305, 323 (1997); City

of Indianapolis v. Edmond, 531 U.S. 32, 47-48 (2000). As a result, his Fourth Amendment claim

against Defendant Cappelli in her individual capacity under § 1983 should be dismissed.*

Insofar as Plaintiff may assert a § 1983 claim against Defendant Cappelli in her official

capacity, such claim is also subject to dismissal. “[A] section 1983 action against [an official] in

his or her official capacity is treated as an action against the [public] entity itself.” Barber vy. City

of Salem, Ohio, 953 F.2d 232, 237 (6th Cir. 1992) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)

(“Suits against state officials in their official capacity therefore should be treated as suits against

the State”). Here, an official capacity suit against Defendant Cappelli would be a suit against the

Fairborn Municipal Court which, as an arm of the state of Ohio, is entitled to sovereign immunity

under the Eleventh Amendment. Ward v. City of Norwalk, 640 F. App’x 462, 464 (6th Cir. 2016).

Even assuming Eleventh Amendment sovereign immunity did not apply, the official

capacity claims would still be subject to dismissal. Government entities are considered persons

under § 1983 and “may be sued for constitutional deprivations.” Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690-91 (1978). However, like individuals, government entities cannot be held liable

for the acts of employees or officials on a respondeat superior theory. Id. at 693. Instead, an

official policy or custom must be the “moving force” behind the alleged constitutional deprivation.

See City of Canton v. Harris, 489 U.S. 378, 389 (1989). To demonstrate Monell liability, one

must: (1) identify the policy or custom; (2) connect the policy to the governmental entity; and (3)

show injury of a constitutional magnitude incurred because of that policy’s execution. Alkire v.

“ The same conclusion would apply to claims asserted against Defendants Sampson and Donnatelli

in their individual capacities.

Irving, 330 F.3d 802, 815 (6th Cir. 2003) (internal citations omitted). As noted above, Plaintiff

cannot show a constitutional violation, supra, and, as a result, his official capacity claims should

be dismissed.

V.

Based on all of the foregoing, the undersigned RECOMMENDS that: (1) Defendant

Cappelli’s motion to dismiss (doc. 3) be GRANTED; (2) Plaintiffs claims against Defendant

Cappelli be DISMISSED pursuant to Fed. R. Civ. P. 12(b)(6); (3) Plaintiffs claims against

Defendants Sampson and Donnatelli be DISMISSED under Fed. R. Civ. P. 4(m) for failure to

timely serve them; and (4) this case be TERMINATED on the Court’s docket.

Date: s/Michael J. Newman

Michael J. Newman

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections

to the proposed findings and recommendations within FOURTEEN days after being served with

this Report and Recommendation. This period is not extended by virtue of Fed. R. Civ. P. 6(d) if

served on you by electronic means, such as via the Court’s CM/ECF filing system. If, however,

this Report and Recommendation was served upon you by mail, this deadline is extended to

SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d). Parties may seek an extension of the

deadline to file objections by filing a motion for extension, which the Court may grant upon a

showing of good cause.

Any objections filed shall specify the portions of the Report and Recommendation objected

to, and shall be accompanied by a memorandum of law in support of the objections. If the Report

and Recommendation is based, in whole or in part, upon matters occurring of record at an oral

hearing, the objecting party shall promptly arrange for the transcription of the record, or such

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the

assigned District Judge otherwise directs.

A party may respond to another party’s objections within FOURTEEN days after being

served with a copy thereof. As noted above, this period is not extended by virtue of Fed. R. Civ.

P. 6(d) if served on you by electronic means, such as via the Court’s CM/ECF filing system. If,

however, this Report and Recommendation was served upon you by mail, this deadline is extended

to SEVENTEEN DAYS by application of Fed. R. Civ. P. 6(d).

Failure to make objections in accordance with this procedure may forfeit rights on appeal.

See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50

(6th Cir. 1981).

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