MANGO v. City of Columbus

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

COURTNEY MANGO,

Plaintiff,

v.

CITY OF COLUMBUS, et al.,

:

Defendants.

Case Nos. 2:19-cv-3120, 2:19-cv-5282

Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

JANINNY DASILVA,

Plaintiff, :

v.

CITY OF COLUMBUS, et al.,

Defendants.

OPINION AND ORDER

These matters are before the Court on seven motions to dismiss (Mango1 ECF Nos. 69–

72; DaSilva ECF Nos. 13–15) and two motions for judgment on the pleadings (Mango ECF Nos.

75, 76) by the defendants in the two above-captioned cases. Plaintiffs have responded to each of

the motions filed in their respective cases. (Mango ECF Nos. 77–80, 88; DaSilva ECF No. 29.)

Defendants have filed replies. (Mango ECF Nos. 91–94, 105, 109; DaSilva ECF No. 30.) These

motions are now ripe for decision. For the reasons set forth more fully below, the City of

1 ECF numbers preceded by “Mango” refer to documents filed on the “Mango v. City of Columbus” docket

(2:19-CV-3120), while ECF numbers preceded by “DaSilva” refer to documents filed on the “DaSilva v. City of

Columbus” docket (2:19-CV-5282).

Columbus’s Motions to Dismiss (Mango ECF No. 69; DaSilva ECF No. 13) are GRANTED IN

PART and DENIED IN PART. The City employees’ Motions to Dismiss (Mango ECF Nos. 70,

71; DaSilva ECF No. 14) are GRANTED. The Franklin County Municipal Court Clerk’s

Motions to Dismiss (Mango ECF No. 72; DaSilva ECF No. 15) are GRANTED. Finally,

specific to the Mango case, the Maugers’ Motions for Judgment on the Pleadings (Mango ECF

Nos. 75, 76) are GRANTED IN PART and DENIED IN PART.

There are three additional items requiring attention in the DaSilva case. First, several

Defendants have filed a Motion for Judicial Notice. (DaSilva ECF No. 12.) Ms. DaSilva has not

opposed this motion. The motion is GRANTED. Second, the Magistrate Judge has

recommended that all claims against Ms. Stewart be dismissed without prejudice for failure to

effect timely service. (DaSilva ECF No. 28.) Ms. DaSilva has not objected to the Magistrate

Judge’s recommendation. The Magistrate’s report and recommendation is ADOPTED, and all

claims against Ms. Stewart are DISMISSED without prejudice. Third, Mr. Hedges has not filed

a motion to dismiss. The claims against him will not be addressed in this opinion.

I. FACTUAL BACKGROUND

Ohio law permits a private citizen to initiate criminal proceedings using the following

procedure:

A private citizen having knowledge of the facts who seeks to cause an arrest or

prosecution under this section may file an affidavit charging the offense committed

with a reviewing official for the purpose of review to determine if a complaint

should be filed by the prosecuting attorney or attorney charged by law with the

prosecution of offenses in the court or before the magistrate. A private citizen may

file an affidavit charging the offense committed with the clerk of a court of record

before or after the normal business hours of the reviewing officials if the clerk’s

office is open at those times. A clerk who receives an affidavit before or after the

normal business hours of the reviewing officials shall forward it to a reviewing

official when the reviewing official’s normal business hours resume.

Ohio Rev. Code Ann. § 2935.09(D) (West 2020). These cases involve private citizens’ use of

this mechanism in what Plaintiffs allege was an unlawful manner.

A. Courtney Mango

Plaintiff Courtney Mango was involved in a protracted custody dispute with her ex-

husband, Defendant Shane Mauger. (Mango Am. Compl. ¶¶ 40, 44, Mango ECF No. 59.) For

some of this time, Shane was incarcerated. (Id. ¶ 40.) Three of Shane’s family members also

participated in the custody litigation—his new wife, Defendant Maria Mauger; his mother,

Defendant Janet Mauger; and his father, Defendant Michael Mauger. (Id. ¶¶ 10–12, 40.) Ms.

Mango alleges that, throughout this custody dispute, the Maugers interfered with the process to

divest her of her custody rights.

On November 8, 2017, the two children were visiting Michael and Janet when Michael

noticed a bruise on the leg of one of the children, W.M. (Mango ECF No. 59-10, at 2–3.)

Michael called the Columbus Police Department (“CPD”) to report that Ms. Mango had abused

W.M. (Mango Am. Compl. ¶ 30.) CPD took no action “[d]ue to conflicting stories” and referred

Michael to the Columbus City Attorney’s Office. (Mango ECF No. 59-16, at 8.)

Michael and Maria took W.M. to the hospital and refused to return the children to Ms.

Mango’s custody. (Mango ECF No. 59-10, at 3.) Michael and the hospital contacted Franklin

County Children’s Services (“FCCS”), which opened an investigation into the matter. (Mango

Am. Compl. ¶ 38; Mango ECF No. 59-10 at 5; Mango ECF No. 59-13, at 9; Mango ECF No. 59-

16, at 8.)

On November 9, 2017, Michael and at least one of the children went to the City

Attorney’s Office where they met with Defendant Robert Tobias. (Mun. Ct. Mot. to Dismiss

Hr’g Tr. (“Mango Hr’g Tr.”) 28:12–20:3, 25:22–26:13, Mango ECF No. 59-9.) Mr. Tobias is a

prosecutor who oversees the unit responsible for reviewing citizen complaints in accordance with

the process outlined in Ohio Rev. Code § 2935.09(D) (the “Citizen Complaint Unit”). (Id. 10:15–

11:4.) Michael was advised to return Ms. Mango’s children to her. (Mango ECF No. 59-10, at 3.)

The City Attorney’s Office did not immediately pursue charges after this meeting. (Mango Hr’g

Tr. 31:9–13.)

That same day, Maria sought and received an ex parte Civil Protection Order (“CPO”)

ordering that Ms. Mango have no contact with the children. (Mango ECF No. 59-10, at 4; Mango

ECF No. 59-13.) The order was to remain in effect until November 27, 2017, when a hearing on

the CPO was to be held. (Mango ECF No. 59-13.) After the CPO was issued, a deputy went to

Ms. Mango’s home, served her with the CPO, and removed the children from the home and

placed them in the custody of the Maugers. (Mango ECF No. 59-10, at 4.)

On November 16, 2017, Michael, Janet, and Maria went to the City Attorney’s Office to

file domestic violence charges against Ms. Mango. (Mango Am. Compl. ¶ 33.) It is not clear

whether the City Attorney’s Office had learned any additional information since Michael’s last

visit. (Mango Hr’g Tr. 31:22–32:19.) However, this time, the City Attorney’s Office agreed to let

Michael file the charges.

Michael signed two criminal Complaints and a probable cause affidavit in which he

alleged that Ms. Mango had physically abused W.M on November 1, 2017. (Mango ECF Nos.

59-1, 59-3, 59-5.) The Complaints contain the initials of Mr. Tobias; Defendant Lara Baker-

Morrish, the chief prosecutor at the City Attorney’s Office; and Defendant Brice Clymer, an

intake officer.2 (Mango ECF Nos. 59-2, 59-6; Hr’g Tr. 18:12–20:3, 25:22–26:13.) As the chief

prosecutor, Ms. Baker-Morrish’s initials went on all citizen Complaints (Mango Hr’g Tr. 19:23–

2 Intake officers are part-time, non-lawyer employees of the City Attorney’s Office who are generally law

students or other graduate students; they are overseen by the supervisors of the Citizen Complaint Unit. (Mango

Hr’g Tr. 25:22–26:13.)

20:1); however, there is no allegation that she was personally involved in the filing of the

Complaints against Ms. Mango. Mr. Tobias, on the other hand, was personally involved in the

case. He created the probable cause affidavit, and he reviewed the documents before they were

filed with the Franklin County Municipal Court Clerk’s Office. (Id. 33:12–14, 35:2–5.) Mr.

Clymer wrote his own initials, Mr. Tobias’s initials, and Ms. Baker-Morrish’s initials on the

documents and accompanied Michael to the Clerk’s Office where Michael submitted the

Complaints. (Id. 37:2–5, 38:17–22; Mango ECF Nos. 59-1, 59-5.)

The deputy clerk found that the Complaints established probable cause that Ms. Mango

had committed two misdemeanors (domestic violence and assault) and issued a summons for her

appearance. (Mango ECF Nos. 59-1, 59-2, 59-3, 59-5, 59-6, 59-12.) The case was prosecuted by

the City Attorney’s Office, specifically by Defendants Allison Lippman and Stephen Steinberg.

(Mango Am. Compl. ¶¶ 14–15.)

On December 18, 2017, Ms. Mango appeared in court in response to the summons and

entered a plea of not guilty. (Mango ECF No. 59-7.) After Ms. Mango was arraigned, the City

Attorney’s Office requested a “stay away” order and asked that she be ordered to comply with

the CPO. (Mango ECF No. 59-15.) When Ms. Mango was arraigned, the presiding judge took

note of the CPO and the pending FCCS investigation and restricted Ms. Mango’s visitation with

the children, ordering that she abide by the findings and recommendations of FCCS. (Id.; Mango

ECF No. 59-10, at 5.) At some point, FCCS determined that the allegations were unsubstantiated

and closed its investigation. (Mango ECF No. 59-10, at 5.)

On January 17, 2018, the CPO matter was scheduled for trial. (Id. at 4.) Maria sought to

delay the trial for a third time, but when her request was denied, she voluntarily dismissed the

action. (Id.) After the CPO matter was dismissed, Ms. Mango’s children were returned to her for

the first time since November 9. (Id. at 4–5.) The only time she had seen them in the interim was

for two hours on Thanksgiving. (Id. at 4.)

In March 2018, Ms. Mango moved to dismiss her criminal case for lack of jurisdiction on

the ground that the initiating Complaints had not been filed in compliance with Ohio Rev. Code

§ 2935.09(D). (Mango ECF No. 59-10.) On July 19, 2018, a Franklin County Municipal Court

judge granted the motion and dismissed the charges. (Mango ECF No. 59-4.)

As a result of these proceedings, Ms. Mango was placed on paid leave from her job as a

schoolteacher for ten months. (Mango Am. Compl. ¶ 101.) She was also twice subpoenaed to

produce her children at a hearing. (Id. ¶ 104.)

B. Janniny DaSilva

Plaintiff Janniny DaSilva is the mother of two children. (DaSilva ECF No. 8-1, at 25–26.)

In February 2015, Ms. DaSilva and her ex-husband, Defendant Corey Hedges, jointly agreed that

Ms. DaSilva would be awarded sole custody over their son, K.H. (Id. at 11.) The father of Ms.

DaSilva’s second son is Jacob Shinnick. (Id. at 25–26.)

On April 5, 2017, Mr. Shinnick’s mother called CPD to report that Ms. DaSilva had

committed an act of violence against K.H. (DaSilva Am. Compl. ¶¶ 32–33, DaSilva ECF No. 8;

DaSilva ECF No. 8-1, at 25.) Ms. DaSilva told the CPD officers that she had been attempting to

spank K.H. on his buttocks with her sandal and had accidentally hit his arm. (DaSilva ECF No.

8-1, at 18–19.) The officers concluded that the injury was accidental and took no action, except

to contact FCCS for follow-up on the incident. (Id. at 19.) FCCS opened an investigation but

closed the case within the next six weeks. (Id. at 23.)

Almost a year later, on March 28, 2018, Mr. Hedges moved for an Emergency Order of

Custody with respect to K.H. (Id. at 17.) On April 2, 2018, while Mr. Hedges’ motion remained

pending, Mr. Hedges and Defendant Rhiannon Stewart (Mr. Shinnick’s stepsister) went to the

City Attorney’s Office to file domestic violence charges against Ms. DaSilva. (DaSilva Am.

Compl. ¶¶ 9, 37.) Ms. Stewart signed two criminal Complaints and a probable cause affidavit in

which she alleged that Ms. DaSilva had physically abused K.H. on April 5, 2017. (DaSilva ECF

No. 8-1, at 1, 3, 5.) The Complaints contain Mr. Tobias’s initials. (Id. at 2, 4.)

Ms. Stewart then submitted these Complaints to the Clerk’s Office. (Id. at 1–4.) The

deputy clerk found that the Complaints established probable cause that Ms. DaSilva had

committed two misdemeanors (domestic violence and assault) and issued a summons or warrant

for Ms. DaSilva.3 (Id.; DaSilva ECF No. 12-4.) The case was prosecuted by the City Attorney’s

Office, specifically by Defendant Michael Wander. (DaSilva Am. Compl. ¶ 11.)

On April 9, 2018, a judge in the Juvenile Division of the Franklin County Court of

Common Pleas granted Mr. Hedges’ motion requesting an Emergency Order of Custody,

primarily based on the two criminal Complaints. (DaSilva ECF No. 8-1, at 17.) The judge

ordered that K.H. be removed from Ms. DaSilva’s custody and be placed in the custody of Mr.

Hedges, and scheduled a hearing for May 15, 2018. (Id.)

On May 1, 2018, Ms. DaSilva was arraigned on the charges filed against her and entered

a plea of not guilty. (DaSilva ECF No. 12-8.) That same day, Mr. Hedges moved, on behalf of

K.H., for a temporary protection order (“TPO”) against Ms. DaSilva. (DaSilva ECF Nos. 12-9,

12-10.) The TPO was granted, and the judge ordered that Ms. DaSilva not have any contact with

K.H. (DaSilva ECF No. 12-10.) Ms. DaSilva subsequently moved to modify the terms of the

3 The deputy clerk checked the summons box on the front of the Complaints and the arrest warrant on the

back of the Complaints. (Compare DaSilva ECF No. 8-1, at 1, 3, with id., at 2, 4.) Ms. DaSilva alleges that a warrant

was in fact issued. (DaSilva Am. Compl. ¶ 2.) Among the documents of which the Court has taken judicial notice,

there is a summons for Ms. DaSilva. (DaSilva ECF No. 12-4.) There is no arrest warrant. Even assuming a warrant

was issued, Ms. DaSilva never alleges she was arrested.

TPO, and on June 28, 2018, she was permitted supervised visitation with K.H. (DaSilva ECF

Nos. 12-11, 12-12.)

On July 25, 2018, Ms. Stewart moved to dismiss the charges against her on the ground

that the Complaints had not been filed in compliance with Ohio Rev. Code § 2935.09(D), citing

Ms. Mango’s case as precedent. (DaSilva Am. Compl. ¶¶ 40, 49, 52; DaSilva ECF No. 12-13.)

On August 18, 2018, the charges against Ms. DaSilva were dismissed by the City Attorney’s

Office. (DaSilva ECF No. 8-1, at 29.)

Shortly before those charges were dismissed, on August 15, 2018, Ms. Stewart again

signed two criminal Complaints and a probable cause affidavit in which she renewed her

allegations that Ms. DaSilva physically abused K.H. on April 5, 2017. (Id. at 6, 8, 10.) The

Complaints were signed by Mr. Tobias. (Id. at 7, 9.) Ms. Stewart then submitted these

Complaints to the Clerk’s Office. (Id. at 6–9.) The deputy clerk again found that the Complaints

established probable cause that Ms. DaSilva had committed two misdemeanors (domestic

violence and assault) and issued a summons for Ms. DaSilva. (Id.)

On October 29, 2018, Ms. DaSilva moved to dismiss these re-filed charges, arguing that

the delay in taking her case to trial was a violation of her right to a speedy trial. (DaSilva ECF

No. 12-18.) On November 27, 2018, a Franklin County Municipal Court judge granted the

motion and dismissed the charges. (DaSilva Am. Compl. ¶ 41; DaSilva ECF No. 8-1, at 30.)

During the course of the above-mentioned proceedings, Ms. DaSilva was prevented from

having contact with K.H. for several months. (DaSilva Am. Compl. ¶ 106.) She was also forced

to make a six-hour round trip journey to court approximately nine times. (Id. ¶ 107.)

II. PROCEDURAL BACKGROUND

After initiating this case in 2019, Ms. Mango filed an Amended Complaint against the

City of Columbus (the “City”); the City Attorney’s Office; seven individuals from the City

Attorney’s Office (City Attorney Zachary Klein, former City Attorney Richard Pfeiffer, Mr.

Tobias, Ms. Lippman, Mr. Steinberg, Ms. Baker-Morrish, and Mr. Clymer); the Maugers; and

Lori Tyack, the Clerk of the Franklin County Municipal Court. (Mango Am. Compl. ¶¶ 5–18.)

Ms. Mango also named John/Jane Doe employees who purportedly work for the City, the City

Attorney’s Office, and the Clerk’s Office. (Id. ¶ 19.)

Ms. Mango’s Amended Complaint pleads the following causes of action: a violation of

42 U.S.C. § 1983 due to the alleged violation of Ms. Mango’s rights under the First Amendment,

Fourth Amendment, Fifth Amendment, Fourteenth Amendment, and Article IV of the United

States Constitution (Claim One); malicious prosecution (Claim Two); intentional infliction of

emotional distress (“IIED”) (Claim Three); negligence (Claim Four); negligent supervision,

hiring, training, discipline, and retention (Claim Five); defamation (Claim Six); invasion of

privacy (Claim Seven); conspiracy (Claim Eight); and unconstitutional policy (Claim Nine). (Id.

¶¶ 112–92.) It is unclear which claims apply to which defendants, except that Claims Five and

Nine are not brought against the Maugers. The Court treats all other claims as if they were

brought against all defendants.

Ms. DaSilva also brought suit in 2019, before filing an Amended Complaint against the

City, four individuals from the City Attorney’s Office (Mr. Klein, Mr. Pfeiffer, Mr. Tobias, and

Michael Wander), Mr. Hedges, Ms. Stewart, and Ms. Tyack. (DaSilva Am. Compl. ¶¶ 5–12.)

Ms. DaSilva also has sued John/Jane Doe employees who purportedly work for the City, the City

Attorney’s Office, and the Clerk’s Office. (Id. ¶ 13.)

Ms. DaSilva’s Amended Complaint pleads the following causes of action: a violation of

42 U.S.C. § 1983 due to the alleged violation of her First Amendment, Fourth Amendment and

Fourteenth Amendment rights, as well as her constitutional right to travel (Claim One);

malicious prosecution (Claim Two); negligent infliction of emotional distress (“NIED”) and

IIED (Claim Three); negligence (Claim Four); negligent supervision, hiring, training, discipline,

and retention (Claim Five); defamation (Claim Six); invasion of privacy (Claim Seven);

conspiracy (Claim Eight); unconstitutional policy (Claim Nine); and a violation of her rights

under the Ohio Constitution (Claim Ten). (Id. ¶¶ 116–98.) It is again unclear which claims apply

to which defendants, except that Claims Five and Nine are not brought against Ms. Stewart or

Mr. Hedges. The Court treats all other claims as if they were brought against all defendants.

III. STANDARDS OF REVIEW

Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with

sufficient specificity to “give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(internal quotations omitted). A complaint that falls short of the Rule 8(a) standard may be

dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

To 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. 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. The plausibility standard is not akin to a probability requirement, but it

asks for more than a sheer possibility that a defendant has acted unlawfully. Where

a complaint pleads facts that are merely consistent with a defendant’s liability, it

stops short of the line between possibility and plausibility of entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations omitted). The

complaint need not contain detailed factual allegations, but it must include more than labels,

conclusions, and formulaic recitations of the elements of a cause of action. See Directv, Inc. v.

Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555).

A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure

12(c) is analyzed in the same manner as a motion to dismiss under Rule 12(b)(6). Tucker v.

Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008). All allegations in the plaintiff’s

complaint are construed in the light most favorable to her, with all allegations accepted as true

and all reasonable inferences drawn in the plaintiff’s favor. Bullington v. Bedford Cty., 905 F.3d

467, 469 (6th Cir. 2018). In addition to the allegations in the complaint, the reviewing court may

consider exhibits attached to the complaint. Barany-Snyder v. Weiner, 539 F.3d 327, 332 (6th

Cir. 2008). The court may also consider documents incorporated by reference into the complaint,

Knapp v. City of Columbus, 93 F. App’x 718, 720 (6th Cir. 2004), including documents attached

to the motion for judgment on the pleadings, so long as those documents are referred to in the

complaint and are central to the plaintiff’s claim, cf. Amini v. Oberlin Coll., 259 F.3d 493, 502

(6th Cir. 2001) (stating the same for a motion to dismiss). The court may also take judicial notice

of other court proceedings. Cf. Buck v. Thomas M. Cooley Law Sch., 597 F.3d 812, 816 (6th Cir.

2010) (concluding the same for a motion to dismiss).

“To overcome a defendant’s motion, ‘a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.’” Bullington, 905 F.3d at

469 (quoting Iqbal, 556 U.S. at 678). The motion should be granted when there is no material

issue of fact and the moving party is entitled to judgment as a matter of law. Tucker, 539 F.3d at

549.

IV. ANALYSIS

At the outset, the Court disposes of several of Ms. Mango’s and Ms. DaSilva’s claims.

First, Ms. Mango makes a bald reference to Article IV of the Constitution without specifying

why she believes her alleged constitutional rights under Article IV were violated. (Mango Am.

Compl. ¶ 113.) Similarly, Ms. DaSilva references her Second and Sixth Amendment rights

without specifically pleading any plausible violations of these rights. (DaSilva Am. Compl. ¶¶

18, 105.) Nor does she plead violations of her Second or Sixth Amendment rights when outlining

her § 1983 claim. (See id. ¶¶ 116–31.) Ms. DaSilva thus never asserts a claim for relief for any

purported violations of these rights. It is not enough for a plaintiff to state that one of her rights

has been violated. Mere conclusory statements without alleging sufficient factual matter to state

a plausible claim for relief cannot survive a motion to dismiss. See Iqbal, 556 U.S. at 678–79. To

the extent Ms. Mango has sought to plead a violation of her Article IV rights, that claim is

DISMISSED. To the extent Ms. DaSilva has alleged any violations of her Second and Sixth

Amendment rights, those claims are DISMISSED.

Next, Ms. Mango has withdrawn her claims based on violation of her Fifth Amendment

rights, as well as her claims against the City Attorney’s Office. (Mango Resp. to City’s Mot. to

Dismiss at 13, 23, Mango ECF No. 77.) Those claims are also DISMISSED.

Finally, Ms. DaSilva briefly asserts a claim for a violation of her rights under the Ohio

Constitution. (DaSilva Am. Compl. ¶¶ 197–98.) As the City pointed out in its Motion to Dismiss,

“the Supreme Court of Ohio has not recognized the existence of a private cause of action for

damages under the Ohio Constitution.” Graham v. Johanns, No. 2:07-CV-453, 2008 WL

3980870, at *11 (S.D. Ohio Aug. 21, 2008). (See also City’s Motion to Dismiss DaSilva, 36,

DaSilva ECF No. 13.) Ms. DaSilva offered no response to this argument. (See DaSilva Resp. to

City’s Mot. to Dismiss, DaSilva ECF No. 29.) Therefore, Ms. DaSilva’s claim under the Ohio

Constitution is DISMISSED.

Plaintiffs’ remaining claims are addressed below, by Defendant.

A. Public Officials and Employees

Plaintiffs bring suit against Mr. Klein, Mr. Pfeiffer, Ms. Baker-Morrish, Mr. Tobias, Ms.

Lippman, Mr. Steinberg, Mr. Clymer, Mr. Wander, and John/Jane Doe employees who worked

for the City and the City Attorney’s Office (the “City employees”) both individually and in their

official capacities.

1. The official capacity claims are dismissed as redundant.

A lawsuit brought against a public official in his/her official capacity is treated as a suit

against the government entity rather than the official personally, since the entity is the real party

in interest. Kentucky v. Graham, 473 U.S. 159, 166 (1985). As a result, in order to prove liability,

a plaintiff must prove that it was the entity’s policy or custom that caused the constitutional

injury. Id. The same standard is used to prove municipal liability. See Monell v. Dep’t of Social

Servs. of City of N.Y., 436 U.S. 658, 694 (1978).

As this Court has previously observed, “[c]ourts regularly dismiss as redundant claims

against agents in their official capacities when the principal entity is also named as a defendant in

the suit.” See Johnson v. Wash. Cty. Career Ctr., No. 2:10-CV-076, 2010 WL 2570929, at *4

(S.D. Ohio June 22, 2010) (citing Von Herbert v. City of St. Clair Shores, 61 Fed. Appx. 133,

140 (6th Cir. 2003); Doe v. Westerville City School Dist., [No. 2:07-CV-0683, 2008 WL

2323526, at *5] (S.D.Ohio June 2, 2008)). Because the City is also a named defendant in

Plaintiffs’ actions, pursuing their claims against City employees in their official capacities is

redundant. “By eliminating the redundant claims . . ., this Court is merely simplifying the

litigation in a manner that does not cause any prejudice to Plaintiffs.” Id. The claims against the

City employees in their official capacities are DISMISSED.

In the case of Ms. Tyack and any John/Jane Doe employees of the Clerk’s Office,

Plaintiffs’ claims against those individuals in their official capacities are also claims against their

employing government entity. See Ward v. City of Norwalk, 640 F. App’x 462, 464–65 (6th Cir.

2016). However, these individuals are employed by the Franklin County Municipal Court, not

the City. The Franklin County Municipal Court is not subject to suit in this action. The Court

cannot be sued on the federal § 1983 claims, because it “is considered an arm of the state for the

purposes of § 1983 and the Eleventh Amendment” and thus is entitled to sovereign immunity. Id.

at 464. With respect to the state law claims, the Franklin County Municipal Court “is not sui

juris” and thus cannot be sued in its own right. Malone v. Ct. of Common Pleas of Cuyahoga

Cty., 344 N.E.2d 126, 128 (Ohio 1976). Plaintiffs’ official capacity claims against Ms. Tyack

and any Doe employees of the Clerk’s Office are DISMISSED.

2. The individual capacity claims against Klein, Pfeiffer, Tyack, Baker-

Morrish, and Doe are dismissed. Claims Five and Nine are also

dismissed.

Although Plaintiffs have sued Mr. Klein, Mr. Pfeiffer, Ms. Baker-Morrish, Ms. Tyack,

and John/Jane Doe employees, these defendants are conspicuously missing from the factual

background in this opinion because Plaintiffs have not identified any basis for individual liability

as to these defendants. Mr. Klein and Mr. Pfeiffer supervised the City Attorney’s Office, Ms.

Baker-Morrish supervised the City Attorney’s Office prosecutors, and Ms. Tyack supervised the

Clerk’s Office at the Franklin County Municipal Court. However, Plaintiffs do not allege that

these individuals had any personal involvement in either of their cases.

A plaintiff must put forth sufficient facts that each defendant “through his or her own

individual actions, personally violated [the] plaintiff’s rights . . . .” Johnson v. Moseley, 790 F.3d

649, 653 (6th Cir. 2015) (emphasis in original). In that same vein, § 1983 does not “incorporate

doctrines of vicarious liability,” Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986), so

defendants are not automatically liable under § 1983 for the acts of those they supervised.

Rather, to incur liability, defendants must have directly participated in or encouraged an

unconstitutional act. Alexander v. Carter for Byrd, 733 F. App’x 256, 263 (6th Cir. 2018).

Because Plaintiffs fail to identify any individual actions of Mr. Klein, Mr. Pfeiffer, Ms. Baker-

Morrish, Ms. Tyack, or any John/Jane Doe that personally violated any of Plaintiffs’ rights, none

is liable under § 1983.

For a similar reason, Mr. Klein, Mr. Pfeiffer, Ms. Baker-Morrish, Ms. Tyack, and any

John/Jane Doe are not liable for any of the state tort claims. Ohio does not recognize a cause of

action for tortious acts in concert. DeVries Dairy, LLC v. White Eagle Coop. Ass’n, 974 N.E.2d

1194, 1194 (Ohio 2012). Thus, none of these defendants can be liable even if they assisted any of

the other defendants in committing one of the identified torts. See Blake v. Wells Fargo Bank,

NA, 916 F. Supp. 2d 839, 843 (S.D. Ohio 2013) (“Ohio does not recognize a cause of action for

civil aiding and abetting . . . .”).4 Plaintiffs also fail to allege sufficient facts to support the idea

that Mr. Klein, Mr. Pfeiffer, Ms. Baker-Morrish, Ms. Tyack, or any John/Jane Doe conspired to

violate their specific rights.

While Plaintiffs assert claims that appear designed to implicate the supervisors in the City

Attorney’s Office for their creation of or participation in what Plaintiffs allege are

unconstitutional policies, that still cannot support liability against these individual defendants.

Claims alleging negligence in supervision, hiring, training, discipline, or retention, or claims

alleging that there exists an unconstitutional policy, are claims against the municipality, not

claims against individual municipality employees or officials. See Heyerman v. Cty. of Calhoun,

680 F.3d 642, 647–48 (6th Cir. 2012); Phillips v. Roane Cty., 534 F.3d 531, 543–44 (6th Cir.

2008). In the case of the supervisors in the Clerk’s Office, any unconstitutional policy claims can

4 Plaintiffs make no allegation of vicarious liability, so the Court does not address that possibility.

only be asserted against the Franklin County Municipal Court, which is immune from liability, as

explained above.

Plaintiffs fail to plead any specific acts by these specific defendants that demonstrate

negligence in supervision, training, etc. Claims Five and Nine are thus properly brought against

the City, rather than these individual defendants. See Heyerman, 680 F.3d at 647; Phillips, 534

F.3d at 543. Finding an absence of a basis in the pleadings to sustain them, Plaintiffs’ Claims

Five and Nine are DISMISSED. Similarly, because Plaintiffs fail to allege any specific unlawful

acts committed by Mr. Klein, Mr. Pfeiffer, Ms. Baker-Morrish, Ms. Tyack, or any John/Jane

Doe, Plaintiffs’ claims against these defendants in their individual capacities are also

DISMISSED.

3. Defendants Tobias, Lippman, Steinberg, Clymer, and Wander are

absolutely immune from suit. All claims against them are, therefore,

dismissed.

Messrs. Tobias, Steinberg, Clymer, and Wander and Ms. Lippman all assert that they are

immune from suit due to the absolute immunity bestowed upon prosecutors5 acting within the

scope of their prosecutorial duties. “When performing functions that are ‘intimately associated

with the judicial phase of the criminal process,’ prosecutors are absolutely immune from civil

suits.” Red Zone 12 LLC v. City of Columbus, 758 F. App’x 508, 513 (6th Cir. 2019) (quoting

Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). However, the immunity is qualified when

5 “In determining whether an official is entitled to prosecutorial immunity, th[e] court employs a

‘functional approach’ and looks to the ‘nature of the function performed, not the identity of the actor who performed

it.’” Red Zone 12 LLC v. City of Columbus, 758 F. App’x 508, 513 (6th Cir. 2019) (quoting Cooper v. Parrish, 203

F.3d 937, 944 (6th Cir. 2000)). Courts have granted immunity to interns supervised by otherwise-immune

government officials in the same manner as their supervisors. See, e.g., Bradley v. City of Ferndale, 148 F. App’x

499, 509–10 (6th Cir. 2005) (reversing district court’s denial of police intern’s motion for summary judgment on

grounds of qualified immunity); Torcivia v. Suffolk Cty., 409 F. Supp. 3d 19, 49 (E.D.N.Y. 2019) (finding that social

worker intern who acted at direction of governmental supervisors was entitled to qualified immunity). Thus,

although Mr. Clymer is not an attorney, he is treated the same as the attorneys supervising him for purposes of the

absolute immunity analysis.

performing functions that are “investigative” or “administrative” and, thus, “more removed from

the judicial process.” Id. If a prosecutor is absolutely immune, it is irrelevant to the analysis

whether he or she has acted improperly, unethically, or even illegally. Id. at 514. Absolute

immunity means absolute immunity.

Included within a prosecutor’s core duties are the duties involved in “the initiation and

prosecution of a lawsuit on behalf of the government” as well as any “actions that are

‘preliminary to the initiation of a prosecution’ and ‘apart from the courtroom.’” Id. (quoting

Imbler, 424 U.S. at n.33). See also Higgason v. Stephens, 288 F.3d 868, 878 (6th Cir. 2002)

(holding that immunity extended to prosecutor’s evaluation of the evidence and presentation of

the evidence to the grand jury); Cooper v. Parrish, 203 F.3d 937, 947 (6th Cir. 2000) (“[A]cts

taken to prepare for the initiation of judicial proceedings . . . are protected by absolute

immunity.”). This includes the acts of preparing and filing charging documents. See Red Zone,

758 F. App’x at 514 (concluding the same for filing a civil complaint).

“The Ohio rules governing prosecutorial immunity mirror the federal rules . . . .” Beckett

v. Ford, 384 F. App’x 435, 452 (6th Cir. 2010). Prosecutors are absolutely immune when acting

in a manner that is “‘intimately associated with the judicial phase of the criminal process.’”

Willitzer v. McCloud, 453 N.E.2d 693, 695 (Ohio 1983) (quoting Imbler, 424 U.S. at 430). This

includes a prosecutor’s decision whether to initiate a prosecution. See Moore v. Cleveland, No.

100069, 2014 WL 1327910, at *7 (Ohio Ct. App. Apr. 3, 2014); Hawk v. Am. Elec. Power Co.,

No. 1-04-65, 2004 WL 2980656, at *3 (Ohio Ct. App. Dec. 27, 2004).

The only involvement of Ms. Lippman, Mr. Steinberg, and Mr. Wander in Plaintiffs’

cases was in prosecuting these cases on behalf of the City. Plaintiffs make no allegation that

these three defendants did anything beyond presenting the government’s cases against them. As

prosecutors are immune for their actions in presenting a case on behalf of the government. Ms.

Lippman, Mr. Steinberg, and Mr. Wander are, therefore, absolutely immune.

Plaintiffs contend that Mr. Tobias and Mr. Clymer are not entitled to absolute immunity,

because their activities were administrative or investigative. (Mango Resp. to City Employees’

Mot. to Dismiss, 3, Mango ECF No. 80; DaSilva Resp. to Mots. to Dismiss, 9, DaSilva ECF No.

29.) For example, Ms. Mango contends that these defendants acted in an investigative manner

when they failed to investigate, or inadequately investigated, Michael’s allegations. (Mango

Resp. to City Employees’ Mot. to Dismiss, at 3.) Despite Ms. Mango’s assertion to the contrary,

a prosecutor’s decision to investigate or not investigate is immune from suit. Grant v.

Hollenbach, 870 F.2d 1135, 1139 (6th Cir. 1989). This is not an “investigative” activity within

the meaning of the absolute immunity case law. See Ireland v. Tunis, 113 F.3d 1435, 1447 (6th

Cir. 1997) (“Absolute prosecutorial immunity will likewise attach to administrative or

investigative acts necessary for a prosecutor to initiate or maintain the criminal prosecution.”)

Ms. Mango also contends that Mr. Tobias and Mr. Clymer acted in an administrative

manner when they allowed Michael, a private citizen, to sign and file the Complaints. (Mango

Resp. to City Employees’ Mot. to Dismiss, at 3.) This is doubly wrong. First, it overlooks the

fact that someone from the City Attorney’s Office was required to approve the Complaints

before they were filed. In other words, whatever role Mr. Tobias or Mr. Clymer played in

approving the Complaints was more than administrative. Indeed, their initials are on the

Complaints as authorizing their filing.

Second, in terms of the absolute immunity analysis, it is splitting hairs to differentiate

between a prosecutor filing a Complaint himself/herself and approving a private citizen’s effort

to do so. See Payson v. Ryan, No. 90-1873, 1992 WL 111341, at *6 (E.D. Pa. May 14, 1992)

(finding no difference between prosecutor’s approval of filing of private citizen’s complaint and

the prosecutor’s sua sponte commencement of criminal proceedings), aff’d, No. 92-1445, 983

F.2d 1051 (3d Cir. 1992). Both situations involve the initiation of a lawsuit on behalf of the

government, an activity for which a prosecutor is absolutely immune. Because Mr. Tobias and

Mr. Clymer acted within the scope of the duties of a prosecutor when they participated in the

initiation of the Complaints filed against Plaintiffs, they are absolutely immune from suit.

Plaintiffs also argue that the City Attorney’s Office is not immune because it acted in

violation of Ohio Rev. Code § 2935.09(D). This misunderstands absolute immunity. When a

prosecutor is absolutely immune from suit, he/she is absolutely immune from suit, even when

violating the law. Red Zone, 758 F. App’x at 514; see Imbler, 424 U.S. at n.34 (explaining that

while willful use by a prosecutor of perjured testimony might warrant criminal prosecution, it

still cannot be the basis for civil liability).

The claims against Mr. Tobias, Ms. Lippman, Mr. Steinberg, Mr. Clymer, and Mr.

Wander are DISMISSED.

B. City of Columbus

1. The City of Columbus is immune from state law tort claims. All such

claims against the City are dismissed.

Ohio’s “Political Subdivision Tort Liability Act[] sets forth a comprehensive statutory

scheme for the tort liability of political subdivisions and their employees.” McConnell v. Dudley,

144 N.E.3d 369, 375 (Ohio 2019). A political subdivision is generally not liable in tort for the

acts or omissions of the political subdivision, or its employees. Ohio Rev. Code Ann.

§ 2744.02(A)(1) (West 2020). However, there are five exceptions to this baseline immunity.

McConnell, 144 N.E.3d at 376. The first four—which involve roads, defective buildings, the

operation of a motor vehicle, and the government’s performance of “proprietary functions”6 —

clearly do not apply. See Ohio Rev. Code Ann. § 2744.02(B). The fifth is a catchall exception

that provides for a political subdivision’s immunity where liability is otherwise imposed under

Ohio law. See Ohio Rev. Code Ann. § 2744.02(B)(5). Plaintiffs do not point to any such

provision in Ohio law, nor do they argue that any of the exceptions applies. Instead, Ms. Mango7

points to Ohio Rev. Code § 2744.03(A)(6) (Mango Resp. to City’s Mot. to Dismiss, at 28),

which applies to the potential immunity of government employees, not to a government entity

itself. Fabrey v. McDonald Vill. Police Dep’t, 639 N.E.2d 31, 35 (Ohio 1994). See also Ohio

Rev. Code Ann. § 2744.03(A)(6) (West 2020) (“[T]he employee is immune from liability unless

one of the following applies . . . .” (emphasis added)). Accordingly, the City is immune from

liability as to all of Plaintiffs’ state law tort claims. (See Section IV.B.2.b., infra, for further

discussion of Plaintiffs’ state law malicious prosecution claims.) All of the state law claims

against the City are, therefore, DISMISSED.

2. Section 1983 Claims and Malicious Prosecution

The City’s immunity from state law torts does not extend to Plaintiffs’ § 1983 claims. See

Owen v. City of Independence, 445 U.S. 622, 657 (1980) (holding that municipalities have no

immunity from damages liability for constitutional violations). Those claims are premised on

purported violations of Plaintiffs’ First Amendment rights of association, their Fourth

Amendment rights, and their Fourteenth Amendment procedural and substantive due process

rights.

6 Prosecution is explicitly defined as a “governmental function,” as distinguished from a “proprietary

function.” Ohio Rev. Code Ann. § 2744.01(C)(2)(f) (West 2020).

7 Ms. DaSilva does not address the issue of the City’s immunity.

a. Plaintiffs plead no plausible violation of their First

Amendment rights.

The Constitution protects two separate rights of association—the right to intimate

association and the right to expressive association. Johnson v. City of Cincinnati, 310 F.3d 484,

498 (6th Cir. 2002). The former “stems from the necessity of protecting individuals’ ability ‘to

enter into and maintain certain intimate human relationships [that] must be secured against undue

intrusion by the State because of the role of such relationships in safeguarding the individual

freedom that is central to our constitutional scheme.’” Id. (alteration in original) (quoting Roberts

v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984)). The latter “protects associations maintained ‘for

the purpose of engaging in those activities protected by the First Amendment—speech,

assembly, petition for the redress of grievances, and the exercise of religion.’” Dade v. Baldwin,

802 F. App’x 878, 882 (6th Cir. 2020) (quoting Roberts, 468 U.S. at 618).

Plaintiffs make no plausible allegation of a violation of their right to expressive

association, so the Court assumes that they have intended to plead a violation of their rights to

intimate association. However, this is a right protected by the Fourteenth—not the First—

Amendment. See Hartwell v. Houghton Lake Cmty. Sch., 755 F. App’x 474, 478 (6th Cir. 2018).

Plaintiffs thus plead no plausible First Amendment violation. (See Section IV.B.2.d., infra, for a

discussion of the right to intimate association.) The City’s Motions to Dismiss Plaintiffs’ § 1983

claims based on First Amendment violations are GRANTED.

b. Plaintiffs’ federal malicious prosecution claim under the

Fourth Amendment fails, as does its state law malicious

prosecution claim.

Plaintiffs both plead violations of their Fourth Amendment “right[s] to be free from

search and seizure . . . .” (Mango Am. Compl. ¶ 113; DaSilva Am. Compl. ¶ 117.) This appears

to be their vehicle for asserting a federal malicious prosecution claim (see Mango Am. Compl. ¶

114; DaSilva Am. Compl. ¶ 118), which is cognizable only under the Fourth Amendment. See

Davis v. Gallagher, 951 F.3d 743, 752 (6th Cir. 2020). The Court thus construes Plaintiffs’

Fourth Amendment claims as federal malicious prosecution claims. Plaintiffs also allege that

Defendants committed a malicious prosecution tort under Ohio law.

A Fourth Amendment malicious prosecution claim requires a plaintiff to prove four

things. Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010). First, that a criminal

prosecution was initiated against her “and that the defendant ‘made, influenced, or participated in

the decision to prosecute.’” Id. at 308 (quoting Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir.

2007)). Second, the prosecution lacked probable cause. Id. Third, “the plaintiff suffered a

‘deprivation of liberty,’ as understood in our Fourth Amendment jurisprudence, apart from the

initial seizure.” Id. at 308–09 (quoting Johnson v. Knorr, 477 F.3d 75, 81 (3d Cir. 2007)). And

fourth, the criminal proceeding was resolved in the plaintiff’s favor. Id. at 309.

To prove the tort of malicious prosecution under Ohio law, a plaintiff must prove that 1)

a prosecution was instituted or continued with malicious intent, 2) the prosecution lacked

probable cause, and 3) the prosecution was termination in the plaintiff’s favor. Trussell v. Gen.

Motors Corp., 559 N.E.2d 732, 735 (Ohio 1990).

Although the elements necessary to prove malicious prosecution differ under federal and

Ohio law, both require a plaintiff to prove that the prosecution was terminated in her favor. This

element is similarly interpreted under federal and Ohio law. Under federal law, the plaintiff must

show that dismissal of her case “indicates that [she] may be innocent of the charges or that a

conviction has become improbable.” Jones v. Clark Cty., 959 F.3d 748, 765 (6th Cir. 2020)

(internal citation and quotation marks omitted); accord Parnell v. City of Detroit, 786 F. App’x

43, 51 (6th Cir. 2019). Dismissals other than on the merits are not considered to be resolutions in

the plaintiff’s favor. See, e.g., Nouri v. Cty. of Oakland, 615 F. App’x 291, 300 (6th Cir. 2015)

(noting that convictions dismissed as a part of a plea deal were not resolutions in plaintiff’s

favor); Thornton v. City of Columbus, 171 F. Supp. 3d 702, 710 (S.D. Ohio 2016) (citing

Singleton v. City of New York, 632 F.2d 185, 193 (2d Cir. 1980)) (concluding that charges

dropped after a jury hung in favor of acquittal likely were not resolved in plaintiff’s favor).

Likewise, Ohio law requires that the plaintiff “demonstrate that he was absolved of any

wrongdoing.” Palshook v. Jarrett, 32 F. App’x 732, 735 (6th Cir. 2002); accord Ash v. Ash, 651

N.E.2d 945, 947 (Ohio 1995) (“A proceeding is ‘terminated in favor of the accused’ only when

its final disposition indicates that the accused is innocent.”). This requires a favorable

adjudication on the merits. Palshook, 32 F. App’x at 736; Broadnax v. Greene Credit Serv., 694

N.E.2d 167, 171 (Ohio Ct. App. 1997).

Neither of Plaintiffs’ cases was adjudicated on the merits. Ms. Mango’s case was

dismissed for failure to comply with the procedures in Ohio Rev. Code § 2935.09(D). Ms.

DaSilva’s first case was voluntarily dismissed by the City Attorney’s Office. After the charges

were re-filed, they were dismissed for violating Ms. DaSilva’s rights to a speedy trial. None of

these dismissals indicates that Ms. Mango or Ms. DaSilva was innocent of the charges, and thus

these cases were not resolved in Plaintiffs’ favor.

In response to the case law, which is decidedly in Defendants’ favor, Plaintiffs primarily

resort to rhetoric, arguing that allowing a malicious prosecution claim to proceed “is mandated

by common sense” and “fairness.” (Mango Resp. to City’s Mot. to Dismiss, at 22; DaSilva Resp.

to Mots. to Dismiss, at 19.) Plaintiffs also argue that because the cases were in fact resolved in

their favor, considering that 1) they were dismissed over the government’s “opposition,” 2) there

was “a full hearing on the procedural shortcomings pertaining to the institution of the

proceedings,” and 3) the City Attorney’s Office could have refiled the charges but chose not to

do so. (Mango Resp. to City’s Mot. to Dismiss, at 21; DaSilva Resp. to Mots. to Dismiss, at 18.)

But, Plaintiffs are unable to cite a single case where a dismissal on procedural or speedy trial

grounds was found to be an adjudication on the merits. What’s more, neither Plaintiff grapples

with the binding precedent that says, in no uncertain terms, that both federal and Ohio law

require a final disposition indicative of the plaintiff’s innocence.

The manner in which Plaintiffs’ cases were dismissed simply does not indicate their

innocence. Ms. Mango’s case would have been equally subject to dismissal on procedural

grounds regardless of her guilt on the underlying charges. And the speedy trial violation in Ms.

DaSilva’s case had nothing to do with factual guilt or innocence. Because neither plaintiff can

prove that her criminal proceedings were resolved in her favor—an essential element of a

malicious prosecution claim under federal and state law—the Court need not analyze the

remaining elements of the claims. Plaintiffs’ malicious prosecution claims under the Fourth

Amendment and state law fail. The City’s Motions to Dismiss Plaintiffs’ § 1983 claims based on

Fourth Amendment violations are GRANTED.

c. Plaintiffs plead no plausible substantive due process claim

under the Fourteenth Amendment.

There are two types of substantive due process claims: claims encompassing official acts

that are never permissible regardless of any procedural safeguards that might accompany them,

and claims asserting the denial of a constitutional or statutory right, privilege, or immunity.

Mertik v. Blalock, 983 F.2d 1353, 1367 (6th Cir. 1993). The former must involve government

action that “shocks the conscience.” Id. at 1367–68 (internal quotation marks omitted). The Sixth

Circuit has raised doubts as to whether conduct “outside the realm of physical abuse” can be

conduct that shocks the conscience. See Braley v. City of Pontiac, 906 F.2d 220, 226 (6th Cir.

1990). In any event, “conduct that ‘shocks the conscience’ is ‘conduct that is so brutal and

offensive that it does not comport with traditional ideas of fair play and decency.’” Puckett v.

Lexington-Fayette Urban Cty. Gov’t, 566 F. App’x 462, 472 (6th Cir. 2014) (some internal

quotation marks omitted) (quoting Handy-Clay v. City of Memphis, 695 F.3d 531, 547–48 (6th

Cir. 2012)). Plaintiffs’ allegations, while troubling, do not rise to the level of such brutality and

offense that they could fairly be characterized as conscience shocking.

That leaves the second type of claim: the denial of a constitutional or statutory right. To

begin with, a substantive due process claim of this kind requires a violation of a federal right. A

violation of state law is not a valid predicate for a § 1983 claim. Beckham v. City of Euclid, 689

F. App’x 409, 414 (6th Cir. 2017). Further, a state procedure is only relevant in the context of a

§ 1983 claim to the extent it implicates a federal right. Id. See also Levine v. Torvik, 986 F.2d

1506, 1515 (6th Cir. 1993) (“A state cannot be said to have a federal due process obligation to

follow all of its procedures . . . .”), overruled in part on other grounds by Thompson v. Keohane,

516 U.S. 99, 111 (1995). Thus, even assuming, arguendo, that the City violated Ohio Rev. Code

§ 2935.09(D), the violation cannot itself form the basis of a Fourteenth Amendment substantive

due process claim.

The only substantive due process violation that Plaintiffs allege is a malicious

prosecution claim. (Mango Resp. to City’s Mot to Dismiss, at 23–24; DaSilva Resp. to Mots. to

Dismiss, at 15–16.) This is a nonstarter. As discussed in detail above, a federal malicious

prosecution claim is viable under the Fourth—not the Fourteenth—Amendment. Davis, 951 F.3d

at 752. The City’s Motions to Dismiss Plaintiffs’ § 1983 claims based on substantive due process

violations are GRANTED.

d. Plaintiffs’ procedural due process claims survive.

A procedural due process claim requires a plaintiff to identify a deprivation of a life,

liberty, or property interest protected by the Due Process Clause and show that the state did not

afford him/her adequate procedural rights in relation to the deprivation. Schmitt v. LaRose, 933

F.3d 628, 642 (6th Cir. 2019), cert. denied No. 19-974, 2020 WL 2621728 (U.S. May 26, 2020).

To determine whether a benefit rises to the level of a protected property interest, a court looks to

“‘existing rules or understandings that stem from an independent source such as state law . . . .’”

Crosby v. Univ. of Ky., 863 F.3d 545, 552 (6th Cir. 2017) (quoting Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972)).

Plaintiffs allege that they suffered a number of harms, though not all involve interests

protected by the Due Process Clause. Most of the identified harms are concomitant to the

criminal process, such as being required to report to court. But, there is no due process right “to

be free from the burdens of defending oneself against an unsuccessful prosecution . . . .”

Richardson v. City of S. Euclid, 904 F.2d 1050, 1054 (6th Cir. 1990). Ms. Mango argues that

there is such a right where the appropriate procedures were not followed in instituting the

criminal process in the first place. (Mango Resp. to City’s Mot. to Dismiss, at 25.) This argument

conflates the second part of the test (the adequacy of the procedures) with the first (the existence

of a protected interest). See Olin v. Wakinekona, 461 U.S. 238, 250, n.12 (1983) (“Process is not

an end in itself. Its constitutional purpose is to protect a substantive interest to which the

individual has a legitimate claim of entitlement.”). The bottom line is: There is no due process

right “to be free from criminal prosecution except upon [a finding of] probable cause.” Albright

v. Oliver, 510 U.S. 266, 268 (1994). Plaintiffs’ allegations are instead comparable to an abuse of

process claim—but, no such claim exists under federal law. Moore v. WesBanco Bank, Inc., 612

F. App’x 816, 823 (6th Cir. 2015).

The incidental deprivations that Plaintiffs may have suffered due to their pending

criminal charges are not protected by the Fourteenth Amendment unless accompanied by some

other “loss beyond the inconvenience of defending themselves in court.” Richardson, 904 F.2d at

1054. Although Plaintiffs claim to have suffered psychological, physiological, and financial

harms, these are likewise not protected by the Fourteenth Amendment. Cf. Paul v. Davis, 424

U.S. 693, 700–01 (1976) (declining to interpret the Fourteenth Amendment as “a font of tort

law” to be deployed “wherever the State may be characterized as the tortfeasor”); Satkowiak v.

Bay Cty. Sheriff’s Dep’t, 47 F. App’x 376, 379 (6th Cir. 2002) (“[T]he Fourteenth Amendment’s

Due Process Clause does not serve as a substitute for state tort law, and it does not protect

against every injury to reputation, honor, or integrity.”).

Plaintiffs also assert that they suffered harm to their reputations and their

employment/employability. For example, Ms. Mango alleges that she was placed on paid leave

from her job as a schoolteacher for ten months, and Ms. DaSilva alleges that she has suffered

harm related to her future employment prospects. These interests are not protected by the Due

Process Clause either. It is well-settled that “‘a person’s reputation, good name, honor, and

integrity are among the liberty interests protected by the due process clause of the fourteenth

amendment.’” Quinn v. Shirey, 293 F.3d 315, 319 (6th Cir. 2002) (quoting Chilingirian v. Boris,

882 F.2d 200, 205 (6th Cir. 1989)). “But defamation alone is not enough to trigger this

constitutional protection; rather, the alleged damage must be tied to ‘[s]ome alteration of a right

or status previously recognized by state law.’” Crosby, 863 F.3d at 555 (alteration in original)

(quoting Quinn, 293 F.3d at 319). With respect to Ms. Mango: placing an employee on paid

administrative leave is not a due process violation where circumstances require the employee’s

suspension. Joseph v. City of Columbus, No. C2-04-754, 2006 WL 2795195, at *7 (S.D. Ohio

Sept. 27, 2006) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 544–45 (1985)). Ms.

Mango cannot succeed under that standard—it is certainly justifiable that her employer placed a

schoolteacher on leave when facing allegations of child abuse. And, as to Ms. DaSilva: Ohio law

does not recognize a right to future employment. Bennafield v. City of Canton Police Dep’t, No.

87-3919, 1988 WL 90915, at *3 (6th Cir. Sept. 1, 1988); see Chilingirian, 882 F.2d at n.8 (“A

charge that merely makes a plaintiff less attractive to other employers but leaves open a definite

range of opportunity does not constitute a liberty deprivation.”).

Finally, Plaintiffs allege a violation of their rights to intimate association with, and to

parent and raise, their children. “‘[T]he Constitution recognizes both a protectible procedural due

process interest in parenting a child and a substantive fundamental right to raise one’s child.’”

Schulkers v. Kammer, 955 F.3d 520, 539 (6th Cir. 2020) (quoting Bartell v. Lohiser, 215 F.3d

550, 557 (6th Cir. 2000)). See also Roberts, 468 U.S. at 619 (identifying “the raising and

education of children” as one component of the intimate relationship “entitled to this sort of

constitutional protection”) (citing Smith v. Org. of Foster Families for Equality and Reform, 431

U.S. 816, 843–44 (1977)). Defendants do not presently contest Plaintiffs’ rights to parent and to

raise their children nor that these rights were infringed upon. Rather, they dispute the cause of

the infringement. For example, the City contends that any limitations on Ms. Mango’s parenting

rights “were not a consequence of the criminal proceedings” but rather “of an intervening and

independent determination by a judge in a separate proceeding before the domestic relations

court.” (City’s Mot. to Dismiss, at 24–25, Mango ECF No. 69.)

Section 1983 is to be understood against the background of standard tort liability. Powers

v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 609 (6th Cir. 2007). That includes traditional

principles of proximate cause. See id. In analyzing whether proximate cause exists, a court must

determine “whether it was reasonably foreseeable that the complained of harm would befall the

§ 1983 plaintiff as a result of the defendant’s conduct. Even if an intervening third party is the

immediate trigger for the plaintiff’s injury, the defendant may still be proximately liable,

provided that the third party’s actions were foreseeable.” Id.

The City relies on two cases to support their claims that there exists no proximate cause

here. In the first, Leech v. Mayer, the plaintiff was on parole and was dating the ex-wife of the

defendant, who happened to supervise the parole authority. 588 F. App’x 402, 404 (6th Cir.

2014). After the defendant reported that the plaintiff violated his parole conditions, a judge

agreed that the plaintiff had violated his parole and punished him accordingly. Id. at 406–08.

After the plaintiff sued alleging a violation of his freedom of association, the Sixth Circuit found

that the defendant had committed no such violation. Id. at 409. This is because it was the judge

who had jurisdiction over the plaintiff’s early release from jail and his parole conditions, and it

was in the judge’s discretion how to deal with any violations. Id. The judge was thus an

intervening cause of the plaintiff’s injury, which broke the causal chain.

In the second, Howell v. Cox, the plaintiff sued a police officer who issued him a citation

for public intoxication. 758 F. App’x 480, 482 (6th Cir. 2018). After the plaintiff failed to appear

for his court date on the citation, the judge issued a bench warrant for his arrest. Id. The plaintiff

was arrested, and later sued the ticketing officer. However, the court found that the officer could

not be responsible for the arrest due to the intervening causes of the arrest—namely, the

plaintiff’s failure to appear and the judge’s resulting issuance of a warrant. Id. at 483. Here, too,

the causal chain between the defendant’s conduct and the plaintiff’s injury was broken by an

intervening event not reasonably foreseeable to the defendant.

Generally speaking, in a criminal case, a judge may commit an intervening act that breaks

the causal chain when she takes an act that “is independent from any misrepresentations,

omissions, or other wrongdoing by the defendant.” Id. There was no such break in the causal

chain for Ms. Mango or Ms. DaSilva.

In Ms. Mango’s case, it is true that her children were removed from her home prior to the

Complaints being filed against her, due to a CPO signed by a judge. But, the City Attorney’s

Office specifically requested that Ms. Mango 1) be ordered to comply with the CPO and 2) be

required to “stay away” (presumably from the children). Because of the early stage of this

litigation and the lack of factual development, it is not obvious that the issuance of the CPO was

an independent event that broke the causal chain. For example, it is not known what the terms of

the CPO were. Nor is it known whether the City’s requests that Ms. Mango be required to stay

away from her children prolonged or exacerbated Ms. Mango’s loss of custody.

Ms. DaSilva’s case is a simpler one, and indeed the City does not even argue that the

causal chain was broken. (City’s Mot. to Dismiss DaSilva, at 34, DaSilva ECF No. 13.) The

Juvenile Division judge granted Mr. Hedges’ motion for an emergency order of custody based on

the Complaints that Ms. Stewart had filed—with the permission of the City—against Ms.

DaSilva. Thus, Ms. DaSilva lost custody of K.H. precisely because of the City’s involvement in

the filing of the Complaints against her.

Because the Court concludes that Plaintiffs were deprived of their rights to associate with

and raise their children, the remaining question in the analysis is whether they were afforded

adequate process prior to this deprivation. “The fundamental aspects of procedural due process

are notice and an opportunity to be heard.” Huntsman v. Perry Local Sch. Bd. of Educ., 379 F.

App’x 456, 462–63 (6th Cir. 2010). The City contends that Plaintiffs received notice of the

charges against them and that they had an opportunity to have their objections to the charges

heard. (City’s Mot. to Dismiss Mango, at 31–32; City’s Mot. to Dismiss DaSilva, at 34.) But,

this argument misses the point. The relevant deprivation does not relate to the charges filed

against Plaintiffs, but rather to the loss of access to their children. The question, then, is whether

Plaintiffs received notice and an opportunity to be heard with respect to that deprivation. It is not

clear that they did.

Ms. Mango alleges that the CPO hearing was ex parte despite her being in the same

building at the time it was held. (Mango Resp. to City’s Mot. to Dismiss, at 6–7.) It does not

appear that Ms. Mango had any opportunity to challenge the restrictions requested by the City

Attorney’s Office and placed on her by the Municipal Court judge. In the case of Ms. DaSilva,

the City points out that the TPO was granted only after a hearing on the motion. But, Ms.

DaSilva was not present at the hearing, and it is not readily apparent whether she had notice of

the hearing. It is thus not clear that either of the Plaintiffs “had an adequate opportunity to

challenge” the custody decision in court. See Pittman v. Cuyahoga Cty. Dep’t of Children &

Family Servs., 640 F.3d 716, 730 (6th Cir. 2011). Given these alleged facts, it is plausible that

Plaintiffs were not given adequate process prior to being deprived of their rights to parent and

raise their children. Plaintiffs’ related claims, therefore, survive. The City’s Motions to Dismiss

Plaintiffs’ § 1983 claims based on procedural due process violations are DENIED.

e. DaSilva’s right to travel claim survives.

Ms. DaSilva also alleges a violation of her constitutional right to travel. (DaSilva Am.

Compl. ¶ 119.) The City did not address this claim in its Motion to Dismiss. Thus, this claim

remains.

C. Shane, Maria, Michael, and Janet Mauger

1. Shane, Maria, and Janet are protected from some—but not all—of

Ms. Mango’s state law claims by virtue of Ohio’s crime reporting

privilege.

As an initial matter, the Maugers argue that each of Ms. Mango’s claims against them are

barred under the Ohio crime reporting privilege. (Michael and Janet Mauger Mot. for J. on the

Pleadings, 4, Mango ECF No. 75; Shane and Maria Mauger Mot. for J. on the Pleadings, 5,

Mango ECF No. 76.) Statements made in judicial proceedings are absolutely privileged under

Ohio law and may not be the basis for civil liability. M.J. DiCorpo, Inc. v. Sweeney, 634 N.E.2d

203, 209 (Ohio 1994). This privilege “extends to every step in the proceeding, from beginning to

end[,]” including statements made in an affidavit or a statement submitted to a prosecutor for

purposes of reporting the commission of a crime, so long as those statements “bear some

reasonable relation to the activity reported.” Id. at 209–10. Because these statements are

absolutely privileged, the motive for making the statement is irrelevant. See id. at 209. It is also

irrelevant to the privilege determination whether the statement is true. Bacon v. Kirk, No. 1-99-

33, 2000 WL 1648925, at *19 (Ohio Ct. App. Oct. 31, 2000); see DiCorpo, 634 N.E.2d at 209.

Accordingly, statements made by the Maugers at any stage of a judicial proceeding

cannot be the basis for any of Ms. Mango’s state law claims. That includes statements made by

the Maugers to the City Attorney’s Office, as well as statements made by Maria as a part of the

proceedings to obtain the CPO. Nonetheless, the privilege does not fully absolve the Maugers of

liability. First, the Court can find no indication that the privilege applies to prevent liability under

a § 1983 claim. Cf. Bower v. Village of Marblehead, Ohio, No. 3:18-CV-2502, 2020 WL

3487847, at *7, n.1 (N.D. Ohio June 26, 2020) (first finding that plaintiff’s defamation claims

were not actionable under § 1983 and separately noting that they would also fail if pleaded as

state law claims due to the crime reporting privilege).

Second, Ms. Mango’s Amended Complaint seeks to hold the Maugers liable for other

statements beyond those made to the City Attorney’s Office or in the CPO proceedings,

including those made to CPD and to FCCS. (See, e.g., Mango Am. Compl. ¶ 166 (“The Maugers

published false allegations of abuse and criminal behavior by Plaintiff with police, children’s

services agencies, prosecutors, and to the court in the criminal and domestic cases.”).) These

non-judicial statements are not necessarily shielded by the same privilege. Several state and

federal courts in Ohio have determined, for example, that statements to police officers are

entitled only to a qualified privilege. See Dehlendorf v. City of Gahanna, 786 F. Supp. 2d 1358,

1365 (S.D. Ohio 2011); Scott v. Patterson, No. 81872, 2003 WL 21469363, at *2–3 (Ohio Ct.

App. June 26, 2003). The key difference between a qualified privilege and an absolute privilege

is that bad faith, malice, and knowledge of falsity are irrelevant for purposes of statements that

are absolutely privileged statements, but such malfeasance destroys a qualified privilege.

DiCorpo, 634 N.E.2d at 209. In other words, if the Maugers knowingly provided false

information to CPD or FCCS, those statements may not be privileged. The Maugers did not

address the non-judicial statements in their Motions for Judgment on the Pleadings, so the Court

does not decide what level of privilege they might be entitled to.

As previously noted, Ohio does not recognize aiding and abetting liability in the civil

context. See Blake, 916 F. Supp. 2d at 843. Accordingly, Ms. Mango must plead specific acts

committed by each defendant in order to establish a tort; grouping all of the Maugers together

will not suffice. (See, e.g., Mango Am. Compl. ¶ 38 (“The Maugers corresponded with

Children’s Services, law enforcement [and] the City Attorney . . . in furtherance of the illegal

prosecution against Plaintiff.”).) Ms. Mango’s only allegations specific to Maria are that she

drove the children to the hospital and to the City Attorney’s Office (which cannot establish a

tort), and that she sought the CPO (which is absolutely privileged). Ms. Mango alleges no

specific actions by Shane or Janet whatsoever. Notably, based on the allegations in the Amended

Complaint, the attached exhibits, and the judicially noticed documents, only Michael

communicated with the CPD or FCCS. In other words, Michael is the only defendant whose

statements might sustain state law tort claims for IIED, negligence, defamation, or invasion of

privacy. Janet, Maria, and Shane’s Motions for Judgment on the Pleadings as to these four claims

are GRANTED. Whether these claims can proceed as against Michael requires further analysis.

2. State Law Claims

a. Ms. Mango’s intentional infliction of emotional distress claim

can proceed against Michael.

An IIED claim requires proving “‘(1) that the actor either intended to cause emotional

distress or knew or should have known that the actions taken would result in serious emotional

distress to the plaintiff, (2) that the actor’s conduct was so extreme and outrageous as to go

beyond all possible bounds of decency and was such that it can be considered as utterly

intolerable in a civilized community, (3) that the actor’s actions were the proximate cause of the

plaintiff’s psychic injury, and (4) that the mental anguish suffered by the plaintiff is serious and

of a nature that no reasonable man could be expected to endure it.’” Ondo v. City of Cleveland,

795 F.3d 597, 611–12 (6th Cir. 2015) (quoting Burkes v. Stidham, 668 N.E.2d 982, 989 (Ohio

Ct. App. 1995)). The “extreme and outrageous” standard is narrowly defined and is difficult to

meet. Id. at 612. The Ohio Supreme Court has described this difficult standard as follows:

Liability has been found only where the conduct has been so outrageous in

character, and so extreme in degree, as to go beyond all possible bounds of decency,

and to be regarded as atrocious, and utterly intolerable in a civilized community.

Generally, the case is one in which the recitation of the facts to an average member

of the community would arouse his resentment against the actor, and lead him to

exclaim, “Outrageous!”

Yeager v. Local Union 20, Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 453 N.E.2d

666, 671 (Ohio 1983) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)), abrogated on

other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007).

Michael argues that Ms. Mango’s IIED claim must be dismissed for three reasons—1) an

IIED claim cannot be based on an action someone is legally entitled to perform, 2) filing a

complaint without more is insufficient to support a claim for IIED, and 3) Ms. Mango establishes

insufficient facts to support an IIED claim. (See Michael and Janet Mauger Mot. for J. on the

Pleadings, at 12–14.) All three arguments fail.

Michael’s first two arguments rest on the erroneous assumptions that Ms. Mango alleges

no other actions by Michael beyond his filing of the Complaint and that she alleges that Michael

did nothing illegal. In fact, Ms. Mango alleges that Michael falsely told the police and FCCS that

she had abused her children. He did not have the legal right to lie to the police or to FCCS, and

he did more than merely file a Complaint by notifying law enforcement and FCCS. In addition,

the case that Michael cites for the proposition that an IIED claim requires more than filing a

complaint is inapt. (Id., at 14.) That case dealt with the filing of a lawsuit (i.e., a civil complaint

filed in court) involving a breach of contract. See Sears Roebuck & Co. v. Swaykus, No. 02 JE 8,

2002 WL 31859516, at *2 (Ohio Ct. App. Dec. 11, 2002). Filing a breach of contract lawsuit is a

far cry from falsely accusing a mother of abusing her child.

As to Michael’s third argument, Ms. Mango does plead sufficient facts to support a claim

for IIED. She alleges that Michael intentionally made numerous false allegations that Ms. Mango

had abused her children in order to take away her custody rights. These allegations are indeed

outrageous and would rightly cause any mother serious anguish.

Michael’s Motion for Judgment on the Pleadings as to the IIED claim is DENIED.

b. Ms. Mango’s negligence claim fails.

Ms. Mango states that Michael owed her “a duty of due care in raising allegations of

abuse against the Plaintiff with government agencies, the courts, police, and prosecutors.”

(Mango Am. Compl. ¶ 152.) This is a “[t]hreadbare recital[]” of one of the elements of the cause

of action and is entitled to no weight. Iqbal, 556 U.S. at 678. Most importantly, neither in her

Amended Complaint nor in her briefing does Ms. Mango ever identify any facts to support her

claim that Michael did owe her a duty of care in this context.

Indeed, the Court is skeptical that Michael owed such a duty, since the Ohio Supreme

Court has specifically declined to recognize a negligence claim in an adjacent context. See Foley

v. Univ. of Dayton, 81 N.E.3d 398, 401 (Ohio 2016) (declining to recognize the tort of negligent

misidentification in the context of an erroneous police report). In fact, the Ohio Supreme Court

suggested that the only tort Ohio recognizes for misuse of civil or criminal process is malicious

prosecution and that the only other torts appropriate for “seeking redress for an injury caused by

another’s false reporting of a crime” are defamation, wrongful or false arrest or imprisonment,

and false light invasion of privacy. See id. at 401–02. Michael’s Motion for Judgment on the

Pleadings as to the negligence claim is GRANTED.

c. Ms. Mango’s defamation and invasion of privacy claims also

fail.

The statute of limitations for defamation is one year, and it begins to run at the time the

words are written or spoken. Ohio Rev. Code Ann. § 2305.11(A) (West 2020); Glass v. Glass,

No. 02CA704, 2003 WL 22006807, at *4 (Ohio Ct. App. Aug. 13, 2003.) Thus, because Ms.

Mango filed her Complaint on July 18, 2019, unless the statute of limitations was tolled, she can

only sue for defamation for any statements made in July 2018 or later. However, Ms. Mango

identifies no allegedly defamatory statements made during this time frame.

Ms. Mango does not dispute the application of the statute of limitations. (Mango Resp. to

Mots. for J. on the Pleadings, at 21–22, Mango ECF No. 88.) Her only argument in response is

that, because the statute of limitations is tolled while someone is in prison, and because Shane

was imprisoned during at least some of the relevant time frame, the statute of limitations should

be tolled not only for him but for his alleged co-conspirators. (Id. (citing Ohio Rev. Code Ann.

§ 2305.15(B) (West 2020)).) This argument fails for two reasons. First, the statute itself makes

clear that it applies only to “any action against the imprisoned person.” Ohio Rev. Code Ann.

§ 2305.15(B) (emphasis added). Second, while the statute of limitations may have been tolled

with respect to Shane, Ms. Mango has not identified any allegedly defamatory statements that

Shane made. The Maugers’ Motions for Judgment on the Pleadings as to the defamation claim

are GRANTED.

Michael and Janet Mauger next argue that, although Ms. Mango pleads separate

defamation and invasion of privacy claims, the defamation statute of limitations applies to the

invasion of privacy claim, too. (See Michael and Janet Mauger Mot. for J. on the Pleadings, at

15–16.) Ms. Mango does not respond to this argument. Michael and Janet are correct.

In determining the appropriate statute of limitations, the court “must look to the actual

nature or subject matter of the case, rather than to the form in which the action is pleaded.”

Hambleton v. R.G. Barry Corp., 465 N.E.2d 1298, 1302 (Ohio 1984). Here, the substance of the

defamation and invasion of privacy claims are identical, and that substance must control. Every

defamation claim can be pleaded as an invasion of privacy claim, and if this opportunity for

alternative pleading were to carry the day, it “would essentially eliminate the one-year statute of

limitations for defamation claims . . . .” Murray v. Moyers, No. 2:14-CV-02334, 2015 WL

5626509, at *4 (S.D. Ohio Sept. 24, 2015). Thus, the statute of limitations on the invasion of

privacy claim has also run. Finally, even if the statute of limitations were tolled for Shane while

he was in prison, as with the defamation claim, Ms. Mango alleges no statements made by Shane

that cast her in a false light. See Welling, 866 N.E.2d at 1057–58 (outlining elements of an

invasion of privacy claim). The Maugers’ Motions for Judgment on the Pleadings as to the

invasion of privacy claim are GRANTED.

d. Ms. Mango’s state law conspiracy claim can proceed against

Michael, Shane, and Maria.

A civil conspiracy under Ohio law requires proof of 1) a malicious combination by 2) at

least two people, 3) an injury, and 4) the existence of an unlawful act that is independent from

the conspiracy itself. See Renner v. E. Mfg. Corp., No. 2001-P-0135, 2002 WL 31744760, at *7

(Ohio Ct. App. Dec. 6, 2002). The Maugers argue that the conspiracy claim must fail because all

of Ms. Mango’s other claims fail—in other words, there was no independent unlawful act.

(Michael and Janet Mauger Mot. for J. on the Pleadings, at 17; Shane and Maria Mauger Mot.

for J. on the Pleadings, at 19.)

The Maugers’ argument is unconvincing for two reasons. First, the Court has allowed the

IIED claim against Michael to proceed, which can predicate a civil conspiracy claim. Second,

Ohio law recognizes a tort claim for damages caused by a criminal act. See Jacobson v. Kaforey,

75 N.E.3d 203, 205 (Ohio 2016) (citing Ohio Rev. Code Ann. § 2307.60 (West 2020)). Ms.

Mango alleges that the Maugers committed multiple crimes, including making false statements

and interference with custody. (See Mango Resp. to Mots. for J. on the Pleadings, at 23.)

Michael, Shane, and Maria’s Motions for Judgment on the Pleadings as to the conspiracy claim

are DENIED.

Ms. Mango has offered no evidence, however, that Janet entered into a malicious

combination with anyone. Janet’s Motion for Judgment on the Pleadings as to the conspiracy

claim is GRANTED.

3. Section 1983 Claims

Ms. Mango’s § 1983 claims are also asserted against the Maugers. These claims are

based on alleged violations of Ms. Mango’s rights under the First, Fourth, and Fourteenth

Amendments. For the same reasons set forth above with respect to the City, Ms. Mango’s § 1983

claims against the Maugers cannot proceed on the basis of violations of her rights under the First

Amendment, Fourth Amendment, or her substantive due process rights under the Fourteenth

Amendment. (See Sections IV.B.2.a.–c., supra.) Before considering whether Ms. Mango’s

remaining § 1983 claim—based on her right to procedural due process under the Fourteenth

Amendment—can proceed against the Maugers, the Court addresses the Maugers’ arguments

that they cannot be held liable under § 1983 because they are not state actors.

a. Michael is a “state actor” for purposes of § 1983; Shane,

Maria, and Janet are “state actors” for purposes of § 1985.

Although § 1983 applies only to state actors, “there are circumstances under which

private persons may, by their actions, become ‘state actors’ for § 1983 purposes.” Tahfs v.

Proctor, 316 F.3d 584, 590 (6th Cir. 2003). “[A] private party can fairly be said to be a state

actor if (1) the deprivation complained of was ‘caused by the exercise of some right or privilege

created by the State’ and (2) the offending party ‘acted together with or has obtained significant

aid from state officials, or because his conduct is otherwise chargeable to the State.’” Id. at 590–

91 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). There are three tests used

to evaluate whether a private party can fairly be said to be a state actor—the public function test,

the state compulsion test, and the nexus test. Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir.

1995). Under the public function test, a private party is considered a state actor if he/she

exercises powers traditionally reserved exclusively to the state. Id. Next, “[t]he state compulsion

test requires proof that the state significantly encouraged or somehow coerced the private party

. . . to take a particular action . . . .” Id. And, finally, “the nexus test requires a sufficiently close

relationship . . . between the state and the private actor so that the action taken may be attributed

to the state.” Id. Private persons are also considered to be acting under color of law when they

conspire with state actors to violate a constitutional right. Revis v. Meldrum, 489 F.3d 273, 292

(6th Cir. 2007).8

Prosecuting crime is a core governmental function.9 See Thomas W. Merrill, The

Disposing Power of the Legislature, 110 Colum. L. Rev. 452, 460 (2010) (“[A] general

consensus emerged [in American history] that prosecution is a public function.”); cf. United

States v. Batchelder, 442 U.S. 114, 124 (1979) (“Whether to prosecute and what charge to file or

bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.”). It is

difficult to find instances of private citizens so deeply involved in the initiation of a criminal

prosecution as Ms. Mango alleges was the case here. Indeed, this country abolished the use of

private prosecutors some time ago. See Merrill, supra, at 460. Given this history, there can be no

doubt that a private citizen who initiates a prosecution is a state actor under the public function

test. Cf. Camm v. Faith, 937 F.3d 1096, 1105 (7th Cir. 2019) (finding that private forensics

investigators were state actors where prosecutor “delegated a public function” by hiring them to

investigate crime scene on behalf of law enforcement). To declare otherwise would allow a

8 It appears that, in addition to a § 1983 action, Plaintiffs intended to sue under the civil rights conspiracy

statute, 42 U.S.C. § 1985. (See Mango Am. Compl. ¶ 116; DaSilva Am. Compl. ¶ 123.) Although Plaintiffs failed to

cite to this specific statute, the error is not fatal to their claim. See Johnson v. City of Shelby, 574 U.S. 10, 11 (2014).

9 The State of Ohio has recognized as much by defining prosecutorial activities as a “governmental

function” for purposes of the Political Subdivision Tort Liability Act. See Ohio Rev. Code Ann. § 2744.01(C)(2)(f).

government to farm out its prosecutorial power with impunity. Cf. Carl v. Muskegon Cty., 763

F.3d 592, 597–98 (6th Cir. 2014) (“[F]inding no state action [ ] would incentivize the state to

contract out, piece by piece, features of its prison health care system.”).

To be sure, Ohio Rev. Code § 2935.09(D) requires all Complaints to be filed by a

prosecutor even if they are initiated by a private citizen. Regardless of what the statute requires,

Ms. Mango alleges not only that Michael initiated the filing of the Complaints but that he

himself filed them with the deputy clerk, thereby launching the criminal process. See Dixon v.

Hunt, No. 1:19-CV-338, 2020 WL 772742, at *3 (S.D. Ohio Feb. 18, 2020) (noting that the

filing of a complaint initiates prosecution). Whether or not this complied with Ohio Rev. Code

§ 2935.09(D), the filing of a Complaint by a private citizen is significant involvement in the

State’s criminal process, one normally reserved for a prosecutor (i.e., the government).

It is true that merely providing information to the police “does not expose a private

individual to liability for actions taken ‘under color of law.’” Moldown v. City of Warren, 578

F.3d 351, 399 (6th Cir. 2009); see also Tahfs, 316 F.3d at 591 (“Generally, a private party’s mere

use of the State’s dispute resolution machinery, without the overt, significant assistance of state

officials, cannot be considered state action.” (internal quotation marks and alterations omitted)).

The Maugers also point to Collins v. Clancy as a case that purportedly stands for the proposition

that a private citizen’s role in the criminal process does not expose that citizen to liability.

(Michael and Janet Mauger Mot. for J. on the Pleadings, at 9; Shane and Maria Mauger Mot. for

J. on the Pleadings, at 9–10.) But Collins is not on point. In Collins, a private individual, Donna

Kauffung, complained to the police that her ex-boyfriend was stalking her and had violated a

temporary protection order, and she signed a criminal complaint form that the police had filled

out. Collins v. Clancy, No. 1:12-CV-152-HJW, 2014 WL 1653103, at *2 (S.D. Ohio Apr. 23,

2014). But, after Ms. Kauffung signed the complaint, the police filed the complaint with the

clerk’s office—not Ms. Kauffung. See Collins v. Clancy, No. 1:12-CV-152, 2014 WL 197839, at

*3 (S.D. Ohio Jan. 15, 2014), report and recommendation adopted by, 2014 WL 1653103.

Because Ms. Kauffung did nothing more than submit a complaint to the police, it is not

surprising that the court ultimately concluded Ms. Kauffung was not a state actor for purposes of

§ 1983. See Collins, 2014 WL 1652103, at *5.

Ms. Mango alleges that Michael did more than complain to authorities, and she alleges

that he did more than fill out a form. Ms. Mango alleges that Michael himself filed the criminal

charges in her case, a quintessential government act. That distinction is a significant one, and it is

determinative in the context of the public function test. The relationship between Michael and

the City Attorney’s Office was also sufficiently close, and their actions so intertwined, that, even

if Michael was not himself performing a public function, his actions were attributable to the state

for purposes of the nexus test. Therefore, Michael is a state actor for purposes of § 1983.

On the other hand, none of Ms. Mango’s allegations with respect to Janet, Shane, or

Maria satisfy any of the three state action tests. Ms. Mango does not allege that Janet, Shane, or

Maria took any actions beyond that of a private citizen, such as telephone calls, taking the

children to the hospital and the City Attorney’s Office, and filing the CPO. Nonetheless, Ms.

Mango has sufficiently pleaded that Janet, Shane, and Maria conspired with Michael—a state

actor—and, thus, may be liable as a part of a civil rights conspiracy. Janet, Shane, and Maria are,

therefore, state actors for purposes of a § 1985 conspiracy only.

b. Ms. Mango’s procedural due process claim survives as to

Michael, Shane, and Maria.

The Court previously concluded that Ms. Mango may proceed against the City on her

§ 1983 claim related to an alleged violation of her procedural due process rights prior to being

deprived of her right to intimate association with, and to parent and raise, her children. The

Maugers adopted the City’s argument that any limitations on Ms. Mango’s parenting rights

“were not a consequence of the criminal proceedings” but rather “of an intervening and

independent determination by a judge in a separate proceeding before the domestic relations

court.” (City’s Mot. to Dismiss Mango, at 24–25. See also Michael and Janet Mauger Mot. for J.

on the Pleadings, at 6.) Just as the City failed to persuade the Court that the CPO constituted an

intervening act, the Maugers similarly fail.

As noted above, a judge may commit an intervening act that breaks the causal chain when

he/she takes an act that “is independent from any misrepresentations, omissions, or other

wrongdoing by the defendant.” Howell, 758 F. App’x at 483. However, approximately one week

before the CPO was ordered, Michael contacted FCCS, which contributed to FCCS opening an

investigation. The Franklin County Municipal Court judge who restricted Ms. Mango’s visitation

with the children ordered that her visitation be restricted in accordance with the

recommendations of FCCS, regardless of the CPO. At this stage, it is unclear whether Michael’s

call to FCCS prolonged or exacerbated Ms. Mango’s loss of custody.

The Court is also skeptical that the issuance of the CPO is as independent from the filing

of the Complaints as the Maugers contend. Ms. Mango alleges that Maria sought the CPO in

conjunction with Michael’s first complaint to the City Attorney’s Office. Ms. Mango further

alleges that Maria dragged out the CPO proceedings, which prolonged Ms. Mango’s custody

deprivation. It is thus not clear that the CPO proceedings are necessarily an independent act that

breaks the causal chain.

The facts cited above also indicate that Maria acted in concert with Michael to perpetuate

the alleged harm. Ms. Mango alleges that Shane played a role, as well—specifically, that he

urged Michael to file the criminal charges. (Mango Am. Compl. ¶ 34.) Michael, Maria, and

Shane’s Motion for Judgment on the Pleadings as to Ms. Mango’s § 1983 procedural due process

claim is DENIED.

Ms. Mango fails to make any specific allegations against Janet that plausibly indicate

Janet’s involvement in the conspiracy. As a result, Janet’s Motion for Judgment on the Pleadings

as to Ms. Mango’s § 1983 procedural due process claim is GRANTED.

V. CONCLUSION

For the reasons set forth above, the Motions to Dismiss filed by Defendants Columbus

City Attorney, Zachary Klein, Richard Pfeifer, Robert Tobias, Allison Lippman, Stephen

Steinberg, Lara Baker-Morrish, Brice Clymer, Lori Tyack, and the John/Jane Does are

GRANTED. (Mango ECF Nos. 69, 70, 71, 72; DaSilva ECF Nos. 14, 15.) The Motions to

Dismiss filed by Defendant City of Columbus are GRANTED IN PART and DENIED IN

PART. (Mango ECF No. 69; DaSilva ECF No. 13.) The Motions for Judgment on the Pleadings

filed by Michael Mauger, Shane Mauger, and Maria Mauger are GRANTED IN PART and

DENIED IN PART. (Mango ECF Nos. 75, 76.) The Motion for Judgment on the Pleadings filed

by Janet Mauger is GRANTED. (Mango ECF No. 75.)

Ms. Mango’s remaining claims are as follows: § 1983 claim against the City and against

Michael based on an alleged violation of her right to intimate association with, and to parent and

raise, her children, in violation of the Fourteenth Amendment’s Procedural Due Process Clause;

a § 1985 conspiracy claim against the City and against Michael, Shane, and Maria involving the

same conduct; for IIED against Michael; and Conspiracy against Michael, Shane, and Maria.

Ms. DaSilva’s remaining claims are § 1983 and § 1985 claims against the City based on

the alleged violation of her right to intimate association with, and to parent and raise, K.H., in

violation of the Fourteenth Amendment’s Procedural Due Process Clause, as well as a violation

of her constitutional right to travel. In addition, all claims against Corey Hedges remain.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE