Bowie v. Hamilton County Juvenile Court

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRANDON BOWIE,

Case No. 1:18-cv-395

Plaintiff,

McFarland, J.

v. Bowman, M.J.

HAMILTON COUNTY

JUVENILE COURT, et al.

Defendants.

REPORT AND RECOMMENDATION

This civil action is before the Court on Defendants’ Motion for Judgment on the

Pleadings (Doc. 40) and the parties’ responsive memoranda.

I. Background and facts

This action arises from underlying child visitation cases within the Hamilton County

Juvenile Court. Plaintiff Brandon Bowie has brought claims against Defendants Judge

Sylvia Hendon and Magistrate Catherine Kelley, in their official capacities, as well as

“Hamilton County Juvenile Court” and “Hamilton County, Ohio” for violation of Title II of

the American Disabilities Act and Title 504 of the Rehabilitation Act. (Doc. 31 at ¶1).

Plaintiff lives in Columbus, Ohio and claims a neurological condition makes it

difficult for him to travel from Columbus to Cincinnati. (Doc 31, Page ID #447-448).

Magistrate Kelley had previously allowed Mr. Bowie to appear via telephone at certain

hearings. A hearing was scheduled for June 20, 2017 to hear several pending motions,

including a motion for contempt filed by the mothers of Mr. Bowie’s children as well as

Mr. Bowie’s own motions. The day of the hearing, counsel for Mr. Bowie filed a motion

for him to appear via telephone or video. Magistrate Kelley denied Plaintiff’s motion to

appear via telephone or video that was filed that morning as it would “interfere with the

ability of the court to properly observe and assess the credibility of Mr. Bowie.” (See Doc.

37-1, PAGEID# 510, June 20, 2017 Journal Entry). However, Plaintiff’s motion to waive

appearance was granted and he was represented by counsel at the hearing. (Id.) Plaintiff

alleges that his pending motions were dismissed due to his inability to offer evidence

since he was not participating in the hearing.1 Judge Sylvia Hendon held a hearing on

the objections on March 23, 2018. She then set the matter for sentencing on May 24,

2018 and ordered Plaintiff to appear. (Id. at PAGEID# 511, April 12, 2018 Journal Entry).

After a continuance was granted on May 24, 2018, the hearing was re-set for June 20,

2018. (Id., May 24, 2018 Journal Entry).

On June 20, 2018 Plaintiff failed to appear at the hearing before Judge Hendon.

He told the court that he had to go to the emergency room for a tooth ache. (Id., June 20,

2018 Journal Entry). The Judge then re-set the hearing for July 20, 2018 and allowed the

Plaintiff to appear via telephone. (Id., July 20, 2018 Journal Entry). Plaintiff was found in

contempt for violation of the visitation order. (Id.) The Judge allowed subsequent

continuances of the trial on support issues for Plaintiff’s medical reasons and also allowed

him to waive appearance at a pre-trial if he satisfied payment of the contempt penalty.

(Id., October 10, 2018 Journal Entry and December 17, 2018 Journal Entry). Plaintiff

subsequently filed an appeal of the Judge’s Decision. (Id. at PAGEID# 512, April 8, 2019

Entry).

1 Although the Journal Entry does not support this allegation, it is evident from the transcript of the hearing

before Judge Hendon on March 23, 2018 that Magistrate Kelley did not address the contempt motions

and motion to modify parenting time that Plaintiff had pending. See Doc. 8-1, PAGEID#257-259.

Plaintiff brought this action against Judge Hendon, Magistrate Kelley, the Hamilton

County Juvenile Court and Hamilton County, Ohio for violations of Title II of the Americans

with Disabilities Act (“ADA”). Plaintiff had originally filed his complaint solely against the

Hamilton County Juvenile Court. (Doc. 8). A motion to dismiss was filed as the Hamilton

County Juvenile Court is not sui juris and thus not capable of being sued. (Doc. 13). The

undersigned recommended that the motion be granted (Doc. 25); however, the district

judge declined to adopt the Report and Recommendation relying on the Northern District

of Ohio opinion in Jaegly v. Lucas Cty. Bd. Of Commissioners, No. 16-cv-1982, 2017 WL

6042237, at *4 (N.D. Ohio Dec. 6, 2017) and permitted Plaintiff to file a second amended

complaint. The reasoning in Jaegly, adopted by this court, was that Title II of the ADA

provides express statutory authority to sue the domestic relations division of an Ohio court

of common pleas. (Doc. 30, PageID 432). Further, the Court held that Ohio has waived

Eleventh Amendment immunity against Rehabilitation Claims. (Id.). The Court further held

both Judge Hendon and Magistrate Kelley are immune from Plaintiff’s claim for damages.

In his Second Amended Complaint, Plaintiff seeks a declaration that Defendants’

alleged actions violated Title II of the ADA and Section 504 of the Rehabilitation Act, as

well as injunctive relief (1) enjoining Defendants “from engaging in discriminatory

practices against Bowie a qualified individual with a disability,” and (2) ordering

Defendants to comply with Title II of the ADA and Section 504 of the RA. In addition,

Plaintiff also maintained his request for compensatory damages against Defendants in

the amount of $125,000.00.

Defendants now move for dismissal of Plaintiff’s Second Amended Complaint, with

prejudice, for failure to state a claim. (Doc. 40 at 1). Defendants assert: (1) Plaintiff is not

entitled to declaratory relief or compensatory relief against Judge Hendon or Magistrate

Kelley as a matter of law; (2) Plaintiff is not entitled to injunctive relief because Plaintiff’s

requested accommodation was unreasonable and Plaintiff did not state a claim for relief

under Title II of the American Disabilities Act or Section 504 of the Rehabilitation Act; and

(3) “Plaintiff’s claims against punitive Defendants Hamilton County Juvenile Court and

Hamilton County, Ohio fail for the additional reasons that they are not sui juris.” (Id. at 4).

Plaintiff rejects Defendants’ assertions and argues that judgment on the pleadings

against Plaintiff’s second amended complaint would be improper. Plaintiff asserts that his

second amended complaint (Doc. 31) provides detailed allegations of Defendants’

violation of Plaintiff’s rights under the ADA and RA. (Doc. 44 at 2).

II. Analysis

A. Standard of Review

The Federal Rules of Civil Procedure permit parties to move for judgment on the

pleadings. Fed. R. Civ. Proc. R. 12(c). The standard of review for a 12(c) motion is the

same de novo standard of review that courts apply in a 12(b)(6) motion for failure to state

a claim. Mixon v. Ohio, 193 F.3d 389, 399-400 (6th Cir. 1999) (citing Grindsatff v. Green,

133 F.3d 416, 421, (6th Cir. 1998)). A court must “construe the complaint in the light most

favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and

determine whether the plaintiff undoubtedly can prove no set of facts in support of the

claims that would entitle relief.” 133 F.3d 416, 421 (citing Meador v. Cabinet for Human

Resources, 902 F.2d 474, 475 (6th Cir. 1976)). Nonetheless, courts are only required to

accept “well pleaded facts as true, not the legal conclusions that may be alleged or that

may be drawn from the pleaded facts.” Blackburn v. Fisk Univ. 443, F.2d 121, 124 (citing

L’Orange v. Medical Protective Co., 394 F.2d 57 (6th Cir.); Sexton v. Barry, 233 F.2d 220

(6th Cir.); Ryan v. Scoggin, 245 F.2d 54 (10th Cir.)).

Plaintiff attached evidence of his disability and two transcripts of court proceedings

to his first amended complaint (Doc. 8-1) and then refiled the same evidence of disability

as well as additional domestic court filings to his second amended complaint (Doc. 31-1).

Plaintiff then filed a supplemental complaint, attaching additional court pleadings (Doc.

33). Defendants filed a pleading asking the court to strike the supplemental complaint to

which they attached a certified copy of the relevant domestic court record. (See Doc. 37-

1). The Court ultimately ordered that the supplemental complaint be stricken. (Doc. 38).

As a preliminary matter, by attaching these documents to the pleadings and motions

relative to the pleadings, the parties have implicitly asked the Court to take judicial notice

of the attachments. In ruling on a Rule 12(b)(6) or 12(c) motion, a court "may consider

the Complaint and any exhibits attached thereto, public records, items appearing in the

record of the case and exhibits attached to defendant's motion to dismiss so long as they

are referred to in the Complaint and are central to the claims contained therein." Brent v.

Wayne County Dep't of Human Services, 901 F.3d 656, 694 (6th Cir. 2018); Amini v.

Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001). "Although typically courts are limited

to the pleadings when faced with a motion under Rule 12(b)(6), a court may take judicial

notice of other court proceedings without converting the motion into one for summary

judgment." Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir. 2010); see

also Winget v. JP Morgan Chase Bank, N.A., 537 F.3d 565, 576 (6th Cir. 2008) (stating

that, on a motion to dismiss, a court "may take judicial notice of another court's opinion

not for the truth of the facts recited therein, but for the existence of the opinion, which is

not subject to reasonable dispute over its authenticity"). Neither party has raised the issue

of the Court taking judicial notice of the documents previously referenced nor objected to

their consideration by the Court. Accordingly, based on the present record, the Court

concludes that it can take judicial notice of the state court transcripts (Doc. 8-1) and court

record (Doc.37-1) without converting Defendants' Motion to Dismiss into a motion for

summary judgment. See id.; see also Gonzales v. City of Fostoria, No. 3:13-cv-796, 2014

U.S. Dist. LEXIS 2504, 2014 WL 99114, at *7 (N.D. Ohio Jan. 9, 2014) (taking judicial

notice of municipal court's docket sheets that establish that the plaintiff pleaded no contest

and was subsequently found guilty and that consideration of the state court decision and

docket sheets did "not convert the motion to dismiss to a motion for summary judgment");

Ghaster v. City of Rocky River, 913 F. Supp. 2d 443, 454-55 (N.D. Ohio 2012) (finding

that a court may take judicial notice of another court's docket where, inter alia, the plaintiff

referred to or attached the public record to the complaint); Slusher v. Reader, No. 2:18-

cv-570, 2019 U.S. Dist. LEXIS 51706 (S.D. Ohio Mar. 27, 2019)(same).

B. Defendants’ Motion for Judgement on the Pleadings is well taken

Defendants contend, inter alia, that a 12(c) dismissal of Plaintiff’s Second

Amended Complaint is proper because Plaintiff failed to state a claim for disability

discrimination. (Doc. 40 at 1). The undersigned agrees.

Title II of the Americans with Disabilities Act of 1990 (“ADA”) states that “[n]o

qualified individual with a disability shall, by reason of such disability, be excluded from

participation or denied the benefits of the services, programs or activities of a public

entity.” 42 U.S.C. § 12132. The Rehabilitation Act states that “[n]o otherwise qualified

individual with a disability in the United States . . . shall, solely by reason of her or his

disability, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance.” 29

U.S.C. § 794(a).

In order to prove a public program or service violates Title II of the ADA, a plaintiff

must show: 1) that he is a qualified individual with a disability; 2) that he was either

excluded from participation in or denied the benefits of a public entity’s services,

programs, or activities, or was otherwise discriminated against by the public entity; and

3) that such exclusion, denial of benefits, or discrimination was by reason of his disability.

See 42 U.S.C. § 12132; see also Barrilleaux v. Mendocino County, 61 F.Supp. 3d 906,

915 (N.D. Cal. 2014), citing Weinreich v. Los Angeles Cnty. Metro. Transp. Auth., 114

F.3d 976, 978 (9th Cir. 1997). The same standard applies to a plaintiff who seeks to

establish a claim under section 504 of the Rehabilitation Act, in addition to showing the

program receives federal funding. See Center v. City of W. Carrollton, 227 F. Supp. 2d

863, 867 (S.D. Ohio 2002) and Davis v. Flexman, 109 F. Supp. 2d 776, 785 (S.D. Ohio

1999). “Title II requires only ‘reasonable modifications that would not fundamentally alter

the nature of the service provided,’ not ‘to employ any and all means to make judicial

services accessible to persons with disabilities.’” Bedford v. Michigan, 722 F. App'x 515,

519 (6th Cir. 2018) quoting Tennessee v. Lane, 541 U.S. at 531-32.

Here, Defendants argue that the court’s refusal to allow Plaintiff to attend the June

20, 2017 hearing via telephone was not because of his disability. (Doc. 48 at 5). In this

regard, Defendants contend that the court’s denial of Plaintiff’s request did not

demonstrate: “(1) that he was either excluded from participation in or denied the benefits

of the Juvenile Court’s services, programs, or activities or was otherwise discriminated

against” or that any “exclusion, denial of benefits, or discrimination was by reason of his

disability.” (Id.). Defendants explain that the court denied Plaintiff’s request not because

of his disability, but because Plaintiff’s “remote appearance would ‘interfere with the ability

of the court to properly observe and assess the credibility of Mr. Bowie.” (Doc. 48 at 7

citing Doc. 37-1 at 6). Therefore, Defendants conclude that the decision to deny Plaintiff’s

request to attend the hearing remotely did not violate Title II of the ADA or §504 of the

RA. (Doc. 48 at 5). Furthermore, Plaintiff’s counsel did not even request that Plaintiff

attend remotely until the day of the hearing. (See Doc. 8-1, transcript, p7-9).

Defendants further note that Plaintiff then filed a motion to waive his appearance

at that hearing and that the court granted this motion because of his disability, thus making

an accommodation. (Doc. 48 at 4 and Doc. 40 at 9). Plaintiff also had representation at

the June 2017 hearing as his attorney was present. (Doc. 40 at 2). Additionally,

Defendants note that Plaintiff was allowed to attend other hearings via telephone,

including the July 2018 hearing. (Id. at 3). Such instances of accommodations further

suggest that Defendant’s denial of Plaintiff’s request to attend the June 2017 hearing

remotely was not because of Plaintiff’s disability.

In his Opposition to Defendants’ 12(c) Motion for Judgment on the Pleadings (Doc.

44), Plaintiff seems to conclude that Defendant’s refusal to allow remote attendance at

the June 2017 hearing violated the ADA and RA. He cites the Title II factors that a plaintiff

must show to prove an ADA violation, but he does not explain how Defendant’s conduct

satisfies these factors. (Id. at 8). Plaintiff does not rebut the Defendants’ argument that

refusal to allow for remote participation in the June 2017 hearing was not because of

Plaintiff’s disability, but because of the necessity that Plaintiff be present at that specific

hearing to evaluate his credibility. Plaintiff does not dispute that Defendants made various

accommodations to Plaintiff in the past, and that he had an attorney present at the June

2017 hearing. (Id. 4). Plaintiff also does not dispute that Defendant Kelley waived his

appearance at the June 2017 hearing. He takes the position, however, that because the

waiver resulted in Plaintiff’s filings being dismissed and Plaintiff not getting to testify at the

hearing, he was excluded from the hearing. (Id. at 9-10).

As noted by Defendants, Title II requires “reasonable modifications that would not

fundamentally alter the nature of the services provided.” (Doc. 40 at 10 quoting

Tennessee v. Lane, 541 U.S. 59, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004)). Here, the

Hamilton County Juvenile Court provided reasonable accommodations to Plaintiff by

granting his motion to waive appearance at the June 2017 hearing, and allowing Plaintiff

to appear via telephone in prior and subsequent matters. Defendants, however,

determined that Plaintiff’s actual appearance at the June 2017 hearing was necessary.

His actual appearance was necessary because they did not believe that a remote

appearance would allow for the Juvenile Court to properly perform its functions. The

hearing in question was a contempt hearing and Magistrate Kelley determined she

needed Plaintiff’s physical presence and allowing an appearance via video or telephone

would “interfere with the ability of the court to properly observe and assess the credibility

of Mr. Bowie.” (See Doc. 37-1, PAGEID# 510,June 20, 2017 Journal Entry). As noted by

Defendants, a contempt proceeding also involves the necessity of the court’s being able

to judge a party’s demeanor and character, both of which prove difficult or in some cases

impossible if the party is not present.

Because Plaintiff cannot meet all the elements of an ADA claim/RA claim, Plaintiff’s

claims must fail as a matter of law. In light of the foregoing, Defendants’ motion is well-

taken in and they are entitled to judgment as a matter of law.2

III. Conclusion

For the reasons stated, it is herein RECOMMENDED that Defendants’ Motion for

Judgment on the Pleadings (Doc. 40) be GRANTED; and this matter be CLOSED.

s/ Stephanie K. Bowman

Stephanie K. Bowman

United States Magistrate Judge

2 Additionally, Judge Barrett’s prior order permitted Plaintiff to bring a claim against Hamilton

County, Ohio and the Hamilton County Juvenile Court over the recommendation of the undersigned to the

contrary. Defendants have again raised the issue that Hamilton County and the Juvenile Court are not

proper defendants as they are not entities capable of being sued. To the extent the District Judge would

revisit this issue, the Defendants have properly set forth their argument (see Doc. 40, p12-14) and the

undersigned agrees. In order to sue a court a plaintiff must sue a person as a representative of the court,

not sue the court. In order to sue a county a plaintiff must sue a person or entity, like the Board of County

Commissions, not the geographic location. The entities themself remain incapable of being sued. Thus,

the undersigned again recommends that all claims against Hamilton County and the Hamilton County

Juvenile Court be dismissed for this reason as well as for the reasons set forth above.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRANDON BOWIE,

Case No. 1:18-cv-395

Plaintiff,

McFarland, J.

v. Bowman, M.J.

HAMILTON COUNTY

JUVENILE COURT, et al.

Defendants.

NOTICE

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

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS

of the filing date of this R&R. That period may be extended further by the Court on timely

motion by either side for an extension of time. All objections shall specify the portion(s)

of the R&R objected to, and shall be accompanied by a memorandum of law in support

of the objections. A party shall respond to an opponent’s objections within FOURTEEN

(14) DAYS after being served with a copy of those objections. Failure to make objections

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).