Harris v. German Township, Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

NEAL HARRIS, et al., : Case No. 3: - -00341

:

, : District Judg1e9 cv

: Magistrate Judge Sharon L. Ovington

vs. Plaintiffs : Walter H. Rice

:

GERMAN TOWNSHIP, OHIO, et al.,

:

. :

:

Defendants

REPORT AND RECOMMENDATIONS1

I. Introduction

Plaintiffs Neal Harris and Joy Harris erected a fence on their property in

Germantown, Ohio. They allege that Defendants have gone to extraordinary lengths to

force them to remove their fence and, in doing so, have violated their federal

constitutional rights and Ohio law. A few of the many Defendants are German

Township, Ohio; German Township’s Board of Trustees and the Trustees themselves;

and Cheryl K. Watson, a former German Township Zoning Inspector.

Plaintiffs seek leave to amend their Complaint to add as Defendants the German

Township Chief of Police, two German Township Police Officers, and the German

Township Police Department. These proposed new Defendants have not opposed or

responded to Plaintiffs’ Motion for Leave to Amend. Given this, and because leave to

1 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations.

amend a complaint should be “freely give[n] when justice so requires,” Fed. R. Civ. P.

15(a)(2), Plaintiffs’ Motion for Leave Amend is well taken as to these proposed new

Defendants and the claims Plaintiffs seek to raise against them.

Defendant Watson is the sole opponent to Plaintiffs’ Motion for Leave to Amend.

She contends that it would be futile for Plaintiffs to amend their Complaint to raise

claims against her under Ohio law for malicious prosecution and abuse of process.

Plaintiffs disagree and maintain their desire to add these two claims against Defendant

Watson.

II. Applicable Standards

“Although [Rule 15(a)(2)] encourages courts to give leave to amend ‘when justice

so requires,’ courts need not give leave to amend when doing so would be futile.” SFS

Check, LLC v. First Bank of Delaware, 774 F.3d 351, 355 (6th Cir. 2014) (citation

omitted). A proposed amended complaint that cannot survive a motion to dismiss under

Fed. R. Civ. P. 12(b)(6) is futile. United States ex rel. Ibanez v. Bristol-Myers Squibb

Company, 874 F.3d 905, 917 (6th Cir. 2017). “As a result, the dispositive question ... is

whether [the] proposed second amended complaint contains ‘sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.’ ” Williams v. City

of Cleveland, 771 F.3d 945, 949 (6th Cir. 2014) (quoting, in part, D'Ambrosio v. Marino,

747 F.3d 378, 383 (6th Cir. 2014) (internal quotation marks omitted)).

Under Rule 12(b)(6), the Court accepts the plaintiffs’ allegations as true and

construes their complaint in their favor. See Williams v. Curtin, 631 F.3d 380, 383 (6th

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Cir. 2011). To survive a Rule 12(b)(6) motion, a complaint “must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007)). “The facts cannot make it merely possible that the defendant is

liable; they must make it plausible. Bare assertions of legal liability absent some

corresponding facts are insufficient to state a claim.” Agema v. City of Allegan, 826 F.3d

326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.

III. Discussion

A. Malicious Prosecution

Plaintiffs assert in their proposed Amended Complaint (Count X) that Defendant

Watson and others engaged in malicious prosecution by purposefully and maliciously

instituting various zoning proceedings against them without probable cause and without

any legal justification or excuse. Plaintiffs point out that those zoning proceedings were

ultimately decided in their favor. (Doc. #18, PageID #217).

Plaintiffs also assert an abuse-of-process claim in their proposed Amended

Complaint (Count XI). They allege that Watson and others maliciously instituted various

zoning proceedings against them. They further accuse Watson and others of

“intentionally misus[ing] the Township’s zoning process to advance their own

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illegitimate reasons and not in furtherance of an appropriate action warranted by law.”

Id. at 218, ¶146.

Plaintiffs’ Proposed Amended Complaint—like their original Complaint—

describes in detail many problems that arose over many years in connection with the

fence they built on their property. Accepting their factual allegations as true, they have

lived through troubled times involving an unneighborly neighbor, a scheming township

board of trustees, and vindictive zoning inspectors. One zoning inspector, Defendant

Watson, questioned the validity of the zoning variance Plaintiffs had been granted to

build their fence in an effort to force Plaintiffs to remove their fence. Once Defendant

Watson learned that the variance could not be rescinded, she sent a letter informing

Plaintiffs that a portion of their fence constituted a nuisance (Plaintiffs suspect their

neighbor had sabotaged their fence). Watson’s letter instructed Plaintiffs to repair or

replace the nuisance portions of the fence or else German Township may take action to

remove the fence. Although Plaintiffs used their best efforts to comply with the

Township’s nuisance concerns, they were required to appear several times before the

Township Trustees to defend against baseless attacks regarding the ongoing nuisance

created by their fence. (Doc. #18, PageID #s 194-95, ¶s 33-36).

Watson later became frustrated with Plaintiffs’ public-records requests, which

Plaintiffs allege, “were not well received by the Township.” Id. at 198, ¶ 42. Watson

wrote an email to a Township Trustee stating:

Joy Harris sent another letter to me …. And apparently mailed it to all the

Trustees as well. Frankly, I think she thinks I am her personal secretary

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and I resent it. The time I am spending on this is beyond ridiculous. She

wants copies of all permits issued back to 1993 for [her neighbor] Mr.

Haffner’s property ….

We need to shut her down on this as I am very tired of dealing with her

problems while all sorts of new things are happening.

Id. at 198, ¶s 42-43.

* * *

Defendant Watson argues that Plaintiffs’ claim of malicious prosecution fails

because “no legal proceedings were instituted against Plaintiff.” (Doc. #19, PageID

#224). They were instead involved in administrative proceedings before the German

Township Board of Trustees. Id. Defendant Watson further argues that Plaintiff’s

malicious prosecution claim fails because Plaintiffs were not arrested and their property

was not seized.

Ohio common law distinguishes civil from criminal malicious prosecution. A

claim of malicious civil prosecution under Ohio law consists of four elements:

“(1) malicious institution of prior proceedings against the plaintiff by defendant, … (2)

lack of probable cause for the filing of the prior lawsuit, … (3) termination of the prior

proceedings in plaintiff’s favor, and (4) seizure of plaintiff’s person or property during

the course of the prior proceedings ….” Robb v. Chagrin Lagoons Yacht Club, Inc., 75

Ohio St.3d 264, 269 (Ohio 1996) (quoting Crawford v. Euclid Natl. Bank, 19 Ohio St.3d

135, 139 (1985)).

A claim of malicious criminal prosecution in Ohio requires proof of the first three

civil elements but not the fourth—a seizure of the plaintiff’s person or property. Id. The

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reason for this distinction relates to the plaintiff’s harm:

“The tort of malicious criminal prosecution compensates the plaintiff for

the damage done to dignity and reputation caused by false accusation of a

crime…. The damage occurs whether the plaintiff is arrested or … haled

into court on a summons….”

Id. (quoting Trussell v. Gen. Motors Corp., 53 Ohio St.3d 142, 145-46 (1990)).

Plaintiffs’ proposed First Amended Complaint does not identify which type of

malicious prosecution claim—civil or criminal—they seek to raise under Ohio common

law.2 See Doc. #18, PageID #217. Their Reply points out that the zoning proceedings

against them carried a potential criminal penalty and, as a result, their claim is for

malicious criminal prosecution. In support, they rely on a German Township zoning

ordinance, Section 304, which characterizes a zoning violation as a misdemeanor and

imposes a mandatory fine of not more than $500 per day for those found guilty of

committing a zoning violation. See Doc. #20, PageID #231, n.4.

Plaintiffs’ reliance on this zoning ordinance first arises in their Reply

Memorandum. Defendant Watson therefore has not had an opportunity to address it.

Still, it appears that Plaintiffs have refined their claim to one of malicious criminal

prosecution. This succeeds in avoiding the problem Defendant Watson identifies because

Plaintiffs’ claim of malicious criminal prosecution does not require a seizure of their

persons or property. See Trussell, 53 Ohio St.3d at 146.

The sole case Defendant Watson cites, Griger v. Scholz, 91 N.E.2d 93, 94 (Ohio

2 Although Plaintiffs bring federal constitutional claims under 42 U.S.C. § 1983, they do not suggest that

their malicious-prosecution claim arises under § 1983.

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App. 1950), does not work to her benefit. Griger pre-dates the Ohio Supreme Court’s

distinction between civil and criminal malicious prosecution. See Trussell, 53 Ohio St.3d

at 145-46. And Griger does not address or consider whether a claim of malicious

criminal prosecution may arise in Ohio from a township board of trustees’ actions, a

board of zoning appeals’ action, or other administrative action.

It is unclear whether Plaintiffs also seek leave to Amend their Complaint to add a

claim of malicious civil prosecution. They do not specifically ask for this addition,

although they argue that they have alleged sufficient facts to show they suffered a

prejudgment deprivation of property—the final element of malicious civil prosecution.

Robb, 75 Ohio St.3d at 270 (“[a] cause of action for malicious civil prosecution will lie

only in cases where there is a prejudgment seizure of property ….”). This occurred, in

Plaintiffs’ view, when Defendant Watson presented the Board of Trustees with blatantly

false statements that their fence was unsafe and constituted a nuisance. As a result of

Watson’s falsehoods, the Board issued Resolution 2017-40, ordering Plaintiffs to remove

their fence, without giving them a chance to defend against Watson’s false statements.

Plaintiffs further contend, “Of course, this is just one of many examples of Watson and

the Township maliciously prosecuting Plaintiff[s] for bogus offenses.” (Doc. #20,

PageID #232) (citations omitted).

It is premature to delve into the merits of these arguments because Defendant

Watson did not specifically challenge these aspects of Plaintiffs’ proposed Amended

Complaint when she opposed their Motion to Amend. And again, it is unclear whether

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Plaintiffs seek to raise a claim of malicious civil prosecution in addition to a claim of

malicious criminal prosecution. In the event Plaintiffs want to assert both types of

malicious-prosecution claims, they should be given an opportunity to clarify this in their

First Amended Complaint.

Accordingly, granting Plaintiffs leave to assert a claim of malicious criminal

prosecution against Defendant Watson will not add a futile claim to their Complaint.

B. Abuse of Process

Defendant Watson contends that Plaintiffs’ abuse-of-process claim against her

fails for lack of a plausible showing on each of its three required elements.

Defendant Watson is correct that an abuse-of-process claim in Ohio consists of

three elements: “(1) that a legal proceeding has been set in motion in proper form and

with probable cause; (2) that the proceeding has been perverted to attempt to accomplish

an ulterior purpose for which it was not designed; and (3) that direct damage has resulted

from the wrongful use of process.” Voyticky v. Village of Timberlake, Ohio, 412 F.3d

669, 677 (6th Cir. 2005) (quoting Yaklevich v. Kemp, Schaeffer & Rowe Co., L.P.A., 68

Ohio St.3d 294, 298 (1994) (footnotes omitted)). “[T]the key consideration in an abuse

of process action is whether an improper purpose was sought to be achieved by the use of

a lawfully brought previous action.” Yaklevich, 68 Ohio St.3d at 300.

Accepting Plaintiffs’ allegations as true, Defendant Watson used the Township’s

zoning and nuisance-abatement processes to advance her personal goal shutting down

Plaintiff Joy Harris, particularly her requests for public records concerning her neighbor’s

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property. Defendant Watson’s email, when viewed in Plaintiffs’ favor, shows that

Watson wanted to shut down Joy Harris because Harris was making Watson’s job

difficult, time-consuming, and tiring. Watson, moreover, allegedly resented Harris and

her requests for public records because she felt Harris was treating her like her (Harris’s)

personal secretary. Construed in this manner, Watson’s email suffices at this stage of the

litigation to demonstrate that Watson’s resentment led her, together with others, to

pervert the Township zoning and nuisance-abatement processes to deprive Plaintiffs of

their lawfully erected fence. Watson, moreover, according to Plaintiffs, blatantly lied

about Plaintiffs’ fence to the Township Board of Trustees, and both she and the Trustees

knowingly relied on an Ohio statute that plainly did not apply to Plaintiffs’ fence—

plainly because the township boards cannot act on a nuisance until a fire department or

county building department, not a zoning inspector, finds a structure insecure, unsafe, or

structurally defective. Ohio Rev. Code § 505.86(B) (“A board of township trustees, by

resolution, may provide for the removal, repair, or securance of buildings or other

structures in the township that have been declared insecure, unsafe, or structurally

defective by any fire department under contract with the township or by the county

building department ….” (emphasis added)). Watson and the Board took these and other

actions, according to the proposed First Amended Complaint, to intimidate Plaintiffs into

removing their lawfully erected fence and to accomplish Watson’s personal (and

resentful) goal of stopping Joy Harris from making further public-records requests and

treating Watson like her personal secretary. Such goals are outside the normal

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parameters of any zoning issues before the Board concerning Plaintiffs’ fence.

Defendant Watson argues that Plaintiffs cannot show they suffered damages

caused by her actions as zoning inspector because Plaintiffs were allowed to keep their

fence in place on their property. This, however, overlooks the legal fees Plaintiffs allege

they incurred in opposing Watson’s and the Board’s actions as well as the emotional

distress Watson and the Board allegedly caused Plaintiffs by their abuse of the zoning

and nuisance-abatement processes. Plaintiffs’ proposed Amended Complaint pleads

sufficiently specific factual content to create a reasonable inference, and hence a

plausible claim, that Defendant Watson engaged in abuse of process in violation of Ohio

common law. See Iqbal, 556 U.S. at 678.

Accordingly, granting Plaintiffs leave to assert a claim of abuse of process against

Defendant Watson will not add a futile claim to their Complaint.

IT IS THEREFORE RECOMMENDED THAT:

1. Plaintiffs’ Motion for Leave to File an Amended Complaint (Doc. #18) be

GRANTED; and

2. Plaintiffs be ordered to file their First Amended Complaint within 10 days of any

Decision or Order adopting this Report and Recommendation.

July 7, 2020 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge

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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 Recommendations. Such objections shall specify the

portions of the Report 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.

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,

949-50 (6th Cir. 1981).

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