The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
AL GAMMARINO, TRUSTEE, et al.,
Plaintiffs,
Case No. 1:22-cv-200
v. JUDGE DOUGLAS R. COLE
SYCAMORE TOWNSHIP, et al.,
Defendants.
OPINION AND ORDER
Al, Cathy, and Anthony Gammarino own properties in Sycamore Township,
Ohio. The Township determined that those properties had become nuisances. As a
result, the Township’s agents entered the Gammarinos’ property and cleared out the
offensive vehicles and building supplies.1 The Gammarinos responded by suing the
Township, its trustees, and its agents in Ohio state court for damages under federal
and state law. (Doc. 2). Defendants have since removed the case (Doc. 1), answered
(Doc. 3), and moved for judgment on the pleadings (Doc. 5). For the reasons discussed
below, the Court GRANTS Defendants’ Motion for Judgment on the Pleadings (Doc.
5) and DISMISSES the Gammarinos’ Complaint (Doc. 2) WITHOUT PREJUDICE.
The Court further GRANTS the Gammarinos thirty days to move for leave to file an
1 The Gammarinos claim that this removal occurred without any notice to them or any
opportunity to be heard. The documents Defendants attach to their Answer, though, tell a
very different story. (Doc. 3). Given the basis on which the Court dismisses the action here,
the Court need not decide whether to credit those documents. As discussed below, however,
the Court encourages the Gammarinos (and their counsel) to consider the implications of
those documents for any potential Amended Complaint they may offer.
Amended Complaint addressing the deficiencies the Court identifies below, if they
can, and attaching that proposed Amended Complaint.
BACKGROUND
This matter is before the Court on a motion for judgment on the pleadings. For
such motions, the Court accepts the well-pled factual allegations in the Complaint as
true. See Bullington v. Bedford County, 905 F.3d 467, 469 (6th Cir. 2018). So in
reporting the background here, the Court largely relies on the allegations in the
Complaint, but with the caveat that they are just that—allegations.
Al, Cathy, and Anthony Gammarino (collectively, the “Gammarinos”) own and
maintain real property in Sycamore Township, Ohio. (Doc. 2, #41, 43, 45). The
Gammarinos stored vehicles and “building materials” at three properties. (Id.). For
each, they allege the property “did not have delinquent taxes, assessments, interest,
or penalties remaining unpaid for more than one year and … was not nonproductive
land.” (Id. at #41, 43, 46).
Defendant Sycamore Township’s trustees and agents investigated and
formally declared all three properties nuisances. (Id. at #41, 43, 45). The Gammarinos
allege that, in doing so, the Township’s trustees and agents did not follow state law
and did not notify them of any violations beforehand. (Id. at #41–47). And because
they claim they did not receive notice, the Gammarinos also allege they never
received a hearing. (Id. at #43, 45, 47). Next, Township agents, without the
Gammarinos’ permission, entered the properties and removed the vehicles and
building materials—also allegedly violating state law. (Id. at #42–49). The
Gammarinos further allege the Township’s trustees and agents carried out these
illegal acts maliciously, wantonly, recklessly, and/or intentionally. (Id. at #42, 44, 47,
50). To substantiate, the Gammarinos claim Defendant Kevin Clark told “a property
owner across the street” that the Gammarinos were “causing trouble for Sycamore
Township.” (Id. at #49).
On March 17, 2022, Al (both individually and as a trustee), Cathy, and
Anthony Gammarino sued the Township in state court. (Doc. 2). Along with Sycamore
Township itself, the Gammarinos named the Township’s trustees and agents in both
their official and individual capacities: Tom James, Jim Labarbara, Tom Wiedman,
Skylore Miller, Kevin Clark, Robert Porter, Ray Warrick, and John Doe Towing
Companies and their John Doe operators. (Id. at #35–37). The Gammarinos’ federal
claims proceed under four statutes: 42 U.S.C § 1981, 42 U.S.C § 1983, 42 U.S.C
§ 1985, and 42 U.S.C § 1986. (Id. at #51–54). The Gammarinos also press four Ohio
law claims: one count of common law trespass, two counts of conversion, and one
count arising under Ohio Revised Code § 2307.60 for “theft.” (Id. at #49–51, 54–57).
Defendants removed to this Court under 28 U.S.C. § 1331 (Doc. 1) and
answered (Doc. 3). Attached to the Answer, Defendants provided over two dozen
exhibits. These include multiple letters apparently sent by regular and certified mail
to the Gammarinos informing them of the nuisance their properties created and the
Township’s intended actions in response. (See, e.g., Docs. 3-1, 3-6, 3-16). Others
appear to be pictures of notice letters physically posted on the Gammarinos’
properties. (See, e.g., Docs. 3-9, 3-11, 3-14).
On July 6, 2022, Defendants moved for judgment on the pleadings. (Doc. 5).
They argued that the Gammarinos’ § 1981, § 1985, and § 1986 claims failed out of the
gate because the Complaint contained no allegations of race-based discrimination.
(Id. at #173–74). Next, they pointed to the exhibits attached to the Answer as
irrefutable evidence that the Gammarinos received adequate notice and process. (Id.
at #175–76). Further, Defendants argued that the Gammarinos never said which
constitutional rights they allegedly violated. (Id. at #174). Finally, they contended
that all Defendants enjoyed state-law immunity for all state-law claims, including
qualified immunity, legislative immunity, and political subdivision immunity. (Id.).
The Gammarinos responded. (Doc. 10). First, they argued that Al Gammarino
immigrated from Italy in 1958, seemingly suggesting that the Township acted with
racial animus on that basis. (Id. at #212–13). Next, the Gammarinos clarified—for
the first time—that their § 1983 claim proceeded based on violations of the Fourth,
Fifth, and Fourteenth Amendments. (Id. at #222). The Gammarinos further
explained that the basis for their claims was “not only set forth clearly in the
[C]omplaint, but also in the Constitution of the United States which dates to
September 17, 1787 when the U.S. Constitution was signed.” (Id. at #213–14).
Finally, the Gammarinos argued that Defendants did not follow Ohio law in declaring
their properties nuisances. (Id. at #217–23). Defendants replied. (Doc. 11). The matter
is now ripe.
STANDARD OF REVIEW
A motion for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) is analyzed like a motion to dismiss under Rule 12(b)(6). See Tucker v.
Middleburg-Legacy Place, LLC, 539 F.3d 545, 549 (6th Cir. 2008). The Court
construes the Gammarinos’ Complaint in the light most favorable to them, accepts
the allegations contained therein as true, and draws all reasonable inferences in their
favor. See Bullington, 905 F.3d at 469. The Court should grant the motion only if the
Court finds that there is no genuine issue of material fact and Defendants are entitled
to judgment as a matter of law. Bickley v. Dish Network, LLC, 751 F.3d 724, 733 (6th
Cir. 2014). When the moving party is a defendant, like here, a plaintiff need only
provide the same “short and plain statement of the claim showing that the pleader is
entitled to relief” that would survive a motion to dismiss under Rule 12(b)(6). Keys v.
Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (quoting Fed. R. Civ. P. 8(a)(2)).
But that short, plain statement must offer more than mere “labels and
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] formulaic recitation of
the elements of a cause of action will not do.” Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). There must be “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting
Twombly, 550 U.S. at 570).
This means a complaint must contain “either direct or inferential allegations
respecting all material elements to sustain recovery under some viable legal theory.”
Bishop v. Lucent Techs., Inc., 520 F.3d 516, 519 (6th Cir. 2008). “Conclusory
allegations or legal conclusions masquerading as factual allegations will not suffice.”
Id. (citing Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005)). In sum, an action will
be dismissed under this standard where “there is no law to support the claims made.”
Stew Farm, Ltd. v. Nat. Res. Conservation Serv., 967 F. Supp. 2d 1164, 1169 (S.D.
Ohio 2013), aff’d, 767 F.3d 554 (6th Cir. 2014) (citing Rauch v. Day & Night Mfg.
Corp., 576 F.2d 697, 702 (6th Cir. 1978)). The same holds where “the facts alleged are
insufficient to state a claim.” Id.
LAW AND ANALYSIS
The Gammarinos pursue eight claims against Sycamore Township, its
trustees, and its agents. (Doc. 2, #49–57). Four proceed under federal law; four
proceed under state law. (See id.). None meet the plausibility threshold. Accordingly,
the Court GRANTS Defendants’ Motion for Judgment on the Pleadings. (Doc. 5).
That said, the Court will permit the Gammarinos to amend and refile to supplement
their allegations and hone their claims (if they can).
A. Plaintiffs’ Federal-Law Claims Are Not Plausibly Alleged.
The Gammarinos present four federal claims—42 U.S.C. § 1981, 42 U.S.C.
§ 1983, 42 U.S.C. § 1985, and 42 U.S.C. § 1986. Each fails to clear the plausibility
threshold.
Start with § 1981. The Gammarinos allege that Defendants failed to properly
hire, supervise, train, and investigate the actions of its agents. (Doc. 2, #51–52). And
the Gammarinos claim that Defendants “knew or should have known” its agents
violated the law in taking their property. (Id. at #52–53).
These allegations are entirely deficient—indeed borderline frivolous.
Section 1981, on its face, extends to “[a]ll persons” certain equal rights as are “enjoyed
by white citizens.” 42 U.S.C. § 1981. Following this text, a § 1981 plaintiff must
always demonstrate, in part, that he or she is “subject to discrimination based on
their race” and that the defendant “intended to discriminate against him [or her] on
the basis of race.” Amini v. Oberlin College, 440 F.3d 350, 358 (6th Cir. 2006). Here,
nothing in the Complaint alleges, plausibly or not, that any of the Gammarinos
suffered discrimination based on their race. Indeed, from the Complaint, the Court
does not even know any plaintiff’s race.
Perhaps realizing this, the Gammarinos’ Response avers that one plaintiff, Al
Gammarino, is an Italian immigrant and naturalized American citizen. (Doc. 10,
#212). Two problems with that. First, that fact appears nowhere in the Complaint.
Second, the Gammarinos never insinuate, let alone plausibly allege, that the events
at issue occurred because of Al Gammarino’s race.
The Gammarinos’ § 1985 and § 1986 claims fare no better. Allegations under
§ 1985(3)2 “require ‘some racial, or perhaps otherwise class-based, invidiously
discriminatory animus.’” Post v. Trinity Health-Michigan, 44 F.4th 572, 580 (6th Cir.
2022) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). And “[w]here plaintiff
2 Technically, 42 U.S.C. § 1985 contains three sections: (1) “Preventing officer from
performing duties,” (2) “Obstructing justice; intimidating party, witness, or juror,” and
(3) “Depriving persons of rights or privileges.” Although the Gammarinos don’t say, the Court
assumes they intend to proceed under 42 U.S.C. § 1985(3). If not, the Gammarinos should so
clarify in their Amended Complaint.
has stated no cause of action under § 1985, no cause of action exists under § 1986.”
Braley v. City of Pontiac, 906 F.2d 220, 227 (6th Cir. 1990).
For the same reasons the Gammarinos’ § 1981 claim fails, so too do their
§ 1985(3) and § 1986 claims. Their Complaint alleges no racial or other class-based
animus. And even if Al Gammarino hails from Italy, the Gammarinos (again) provide
zero allegations that his heritage in any way prompted Defendants’ actions.
That leaves the Gammarinos’ § 1983 claim, which also comes up short. Their
§ 1983 claim contains two paragraphs with one operative allegation:
Defendants … at all times [sic] acted under color of statute, ordinance,
resolution, regulation, custom or usage of the State of Ohio and the laws,
resolutions, and ordinances of Sycamore Township to subject the
Plaintiffs to the deprivation of rights, privileges or immunities secured
by the Constitution, the State of Ohio Constitution, and law and caused
injury to the Plaintiff, including but not limited to the injuries
previously set forth herein.
(Doc. 2, #53). Of course, “a claimed violation of a state constitutional right is not
cognizable under § 1983.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 314 (6th
Cir. 2005). Likewise, “a mere violation of … state law will not establish a proper claim
under § 1983.” Pyles v. Raisor, 60 F.3d 1211, 1215 (6th Cir. 1995) (quoting Conley v.
Williams, No. 93-5524, 1994 WL 326001, at *2 (6th Cir. July 5, 1994)). Rather, the
Gammarinos must plausibly allege a federal law violation to state a § 1983 claim. Id.
Thus, their references to the “State of Ohio Constitution” and “law,” assuming that
means Ohio law, are irrelevant.
To be sure, the Gammarinos also point to “the Constitution.” And “law”
presumably could include federal statutes. But their Complaint nowhere identifies
which of their “rights, privileges, or immunities secured by the Constitution and
laws,” see 42 U.S.C. § 1983, Sycamore Township, its trustees, or its agents allegedly
violated. Instead, their § 1983 claim contains nothing more than a bare recitation of
the statute’s elements. That’s not enough. “Conclusory allegations or legal
conclusions masquerading as factual allegations will not suffice.” Bishop, 520 F.3d at
519 (citing Mezibov, 411 F.3d at 716). And while they purport to incorporate the 80
prior paragraphs (Doc. 2, #53), the Gammarinos offer no hint which facts actually
matter to their § 1983 claim. The Court declines to guess.3
The Gammarinos’ Response asserts that the basis for their § 1983 claim “is not
only set forth clearly in the complaint, but also in the Constitution of the United
States which dates to September 17, 1787 when the U.S. Constitution was signed.”
(Doc. 10, #213–14). That doesn’t help for two reasons. First, this argument still fails
to say precisely how Defendants allegedly violated the Gammarinos’ rights. Second,
and more importantly, the Court does not understand the Gammarinos’ intended
purpose in invoking “September 17, 1787,” the date “the U.S. Constitution was
signed.” (Id.). The Court is unaware of any provision in the original 1787 Constitution
that the Gammarinos could say (plausibly or not) Sycamore Township violated.
Indeed, elsewhere in their Response, the Gammarinos point to the Fourth, Fifth, or
Fourteenth Amendments. (Doc. 10, #222). But the States ratified those amendments
years after (or in the case of the Fourteenth Amendment, nearly a century after) 1787.
And the Fourth and Fifth Amendments did not apply to the States (and thus
3 Further, to proceed with their § 1983 claims, the Gammarinos must overcome qualified
immunity and/or demonstrate they are bringing a proper Monell claim against Sycamore
Township. Absent more clarity, the Court cannot evaluate the claims under these
frameworks.
Sycamore Township and its officials) until the Fourteenth Amendment’s ratification
in 1868. So, the 1787 version of the Constitution doesn’t offer much help.
That said, the Gamarinos’ Response also argues that the Township violated
their rights under the “Fourth, Fifth and Fourteenth Amendments to the United
States Constitution” based on the “township’s taking of plaintiffs’ property without
due process of law” and the unreasonable search of their property. (Doc. 10, #215,
222). And perhaps they could state a plausible claim under one or more of those
amendments. After all, they allege that the Township took their property without
notice. But they needed to identify the basis for their claim in their Complaint, and
they failed to do so.
Perhaps recognizing that, the Gammarinos separately request “the
opportunity to amend their [C]omplaint if the Court believes there is a lack of
specificity.” (Doc. 10, #223). And the Court finds it likely the Gammarinos did mean
to allege in their Complaint—if inartfully—a Fourth Amendment unreasonable
search claim, a Fifth Amendment takings claim, and a Fourteenth Amendment due
process claim.4
Accordingly, the Court grants the Gammarinos thirty days to seek leave to
amend their Complaint as to their federal claims. The Court notes, though, that the
Gammarinos must allege actual facts that give rise to a plausible inference
supporting any federal claim that they intend to pursue. The Court will not hesitate
4 The Court at this time takes no position whether any such claims would have merit, or
whether the Gammarinos could even plausibly allege them on the facts here, at least if one
credits the exhibits attached to the Answer.
to deny leave to amend any claim where the Gammarinos do not clear the plausibility
hurdle.
B. Plaintiffs Fail To Plausibly Allege Their State-Law Claims.
The Gammarinos also pursue four state-law claims—a trespass claim, two
conversion claims, and a claim under Ohio Revised Code § 2307.60 to recover
damages for “theft.” (Doc. 2, #49–51, 54–57). In addition to the Township itself, the
Gammarinos sued the Township’s trustees and agents in both their official and
individual capacities. The Court takes the official and individual capacity claims
separately.
Begin with the former. Although the Gammarinos name each Defendant in
their official capacity, this is collectively a claim against Sycamore Township—a
political subdivision under Ohio law. See Lambert v. Clancy, 927 N.E.2d 585, 586
(Ohio 2010). As a result, the Court considers Ohio Revised Code § 2774.02 political
subdivision immunity. Id.
To determine if political subdivision is immune from liability, Ohio courts
apply a “three-tiered analysis.” Wallace v. City of Rossford, No. WD-17-061, 2018 WL
3203145, at *4 (Ohio Ct. App. June 29, 2018) (quoting Rosenbrook v. Bd. of Lucas
Cnty. Comm’rs, 33 N.E.3d 562, 587 (Ohio Ct. App. 2015)). First, a court examines
Ohio Revised Code § 2744.02(A) to determine whether the “general grant of
immunity” applies. Id. If so, the court examines “whether immunity has been
abrogated by the exceptions set forth in R.C. 2744.02(B).” Id. And only if an exception
applies, “the third tier involves a determination of whether the political subdivision
is able to successfully assert one of the defenses listed in R.C. 2744.03, thereby
reinstating its immunity.” Id.
Under § 2774.02(A), political subdivisions have immunity when acting “in
connection with a governmental or proprietary function.” Ohio Rev. Code
§ 2774.02(A). Here, no party disputes Sycamore Township purported to exercise its
police power when seeking to abate a nuisance, a governmental function. (See Doc. 2,
#41; Doc. 5, #182).
Next, § 2744.02(B) affords a political subdivision immunity for intentional
torts unless liability is “expressly imposed … by a section of the Revised Code.” See
Ohio Rev. Code § 2744.04(B)(1)–(5); Bonkoski v. Lorain County, 115 N.E.3d 859, 863–
64 (Ohio Ct. App. 2018). Here, nothing has stripped the Township’s immunity. Each
state-law claim—trespass, conversion, and “theft”—is either an intentional tort or
otherwise requires intent as an element. Indeed, Ohio courts have specifically held
that trespass and conversion (which is arguably civil recovery for “theft”) claims
cannot proceed against Ohio political subdivisions. See Bonkoski, 115 N.E.3d at 863–
64; DSS Srvs., LLC v. Eitel’s Towing, LLC, No. 18AP-567, 2019 WL 3573586, at *7
(Ohio Ct. App. Aug. 6, 2019). And the Gammarinos have not identified a provision of
the Ohio Revised Code waiving political subdivision immunity for their claims.
Accordingly, Sycamore Township remains immune under § 2744.04(A). And as
a result, each Defendant is immune in their official capacity, as official-capacity
claims are merely another name for claims against the Township.
That leaves the individual-capacity claims. Here too, immunity plays a role.
Ohio Revised Code § 2744.03 grants government employees acting within the scope
of their official responsibilities qualified immunity with limited exceptions. Relevant
here: “The employees’ acts or omissions were with malicious purpose, in bad faith, or
in a wanton or reckless manner.” Ohio Rev. Code § 2744.03(A)(6). The Gammarinos,
presumably seeking to invoke that exception, allege throughout their Complaint that
Sycamore Township’s trustees and agents acted recklessly, maliciously, wantonly
and/or intentionally in removing and disposing of the Gammarinos’ property. (Doc. 2,
#44–45, 47, 49–50). And for support, the Gammarinos claim Defendant Clark
complained to a neighbor that the Gammarinos were “causing trouble for Sycamore
Township.” (Id. at #49).
Much of the Gammarinos’ bad-faith narrative, though, strikes the Court as
legal conclusions rather than factual allegations. For example, claiming Defendants
“acted maliciously, wantonly, and/or recklessly” is, without more, entirely conclusory.
(Id.). The Court cannot credit such allegations. See Iqbal, 556 U.S. at 678. And even
in their Response, the Gammarinos still fail to identify credible factual support that
Sycamore Township’s trustees or agents harbored animus.5
To be sure, the Gammarinos suggest an unnamed neighbor heard one
Defendant complain about the Gammarinos causing “trouble.” (Doc. 2, #49). But
5 Elsewhere, the Gammarinos claim “[t]he evidence will demonstrate there was glee on the
part of the Defendants to take the Plaintiffs property and disposed of it without a hearing.”
(Doc. 10, #215). Here again, though, the Gammarinos point to no factual allegations in the
Complaint to substantiate their view that Sycamore Township’s trustees or agents acted in
bad faith.
that’s hardly evidence of malicious purpose, bad faith, or recklessness. If anything,
the Gammarinos’ causing “trouble” (if true) may help explain the actions Sycamore
Township took—assuming the “trouble” consisted of maintaining their property in a
manner that created a nuisance.6 So even assuming Defendant Clark did say this,
the Gammarinos’ Complaint fails to plausibly allege that any Defendant should not
receive qualified immunity.7
Again, though, the Gammarinos request the opportunity to amend and
supplement their allegations. (Doc. 10, #223). And as the Court is providing the
Gammarinos an opportunity to seek leave to amend their federal-law claims, the
Court also will permit the Gammarinos thirty days to seek leave to amend their state-
law claims. In doing so, however, the Court once more stresses the need to provide
actual factual allegations rather than conclusory assertions, addressing the
shortcomings identified above.
CONCLUSION
For the reasons discussed, the Court GRANTS Defendants’ Motion for
Judgment on the Pleadings (Doc. 5) and DISMISSES the Gammarinos’ Complaint
6 Again, at this stage, the Court takes no position whether Sycamore Township’s agents
properly entered the Gammarinos’ property or properly removed their vehicles and building
materials.
7 Defendants separately claim they are entitled to absolute legislative immunity. (Doc. 5,
#186). At least for now, the Court disagrees. Legislative immunity covers a legislator’s acts
to “establish general policy.” Curry v. Blanchester, Nos. CA2009-08-010, CA2009-08-012,
2010 WL 2807948, at *5 (Ohio Ct. App. July 19, 2010). “If, however, the action singles out
specific individuals and affects them differently from others, it is administrative.” Id. Based
on the Gammarinos’ allegations, it appears the Township trustees made a specific
determination directed solely at the Gammarinos’ various properties. If the case ever reaches
discovery, though, the Township may reallege this defense if the facts show otherwise.
(Doc. 1) but does so WITHOUT PREJUDICE. The Court further GRANTS the
Gammarinos thirty days to seek leave to file an Amended Complaint addressing the
deficiencies set forth above and attaching that proposed Amended Complaint. During
that time, this Court retains jurisdiction over this action. In light of the exhibits
Defendants attached to their Answer, the Court also reminds the Gammarinos’
counsel of his obligations to this Court when investigating, drafting, signing, and
filing any Amended Complaint. See Fed. R. Civ. P. 11(b).
SO ORDERED.
February 7, 2023
DATE DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
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