# Grimm v. Cappelli

> District Court, S.D. Ohio · April 6, 2020

URL: https://www.frixlaw.com/law-library/cases/10375387

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** April 6, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10375387

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375387. Public record. Not legal advice.