Hora v. Risner

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

FRANKIE HORA, ef a/., :

Plaintiffs,

Case No. 3:18-cv-344

NP :

JUDGE WALTER H. RICE

RICK RISNER, ef a/.,

Defendants. :

DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN

PART MOTION FOR JUDGMENT ON THE PLEADINGS FILED BY

DEFENDANTS PERRY TOWNSHIP, MONTGOMERY COUNTY, OHIO,

STEPHEN NELSON, WILLIAM WORTMAN, TRUSTEE DALE

EDWARD SEIM, AND THE PERRY TOWNSHIP POLICE

DEPARTMENT (DOC. #30)

Plaintiffs Frankie Hora, Mary Hora, and Tukens, LLC, d/b/a Tukens Farm

Market, filed suit against their neighbor Rick Risner, Perry Township, and Perry

Township employees Stephen Nelson and William Wortman. Plaintiffs seek relief

under 42 U.S.C. 8 1983, for alleged violations of their Fourth, Fifth, Sixth and

Fourteenth Amendment rights. They also bring a state law claim of “emotional

distress.”

This matter is currently before the Court on a Motion for Judgment on the

Pleadings filed by the Perry Township Defendants— Perry Township, Stephen

Nelson and William Wortman (hereafter “Defendants”), joined in by Trustee Dale

Seim, Montgomery County and the Perry Township Police Department. Doc. #30.

Background and Procedural History

Plaintiffs Frankie and Mary Hora own and operate the Tukens Farm Market,

located on Eaton Pike Road, in West Alexandria, Ohio. The property is located in

Perry Township. On October 20, 2017, Rick Risner, who owns the adjacent

property, contacted the Perry Township Police Department, alleging that signs

advertising the farm market were wrongfully located on his property. Officer

Stephen Nelson, of the Perry Township Police Department, was dispatched and

took Risner’s statement. Nelson then allegedly researched the property boundaries

and determined that Risner was correct. According to the Amended Complaint,

Nelson then reported his findings to William Wortman, his supervisor in the Police

Department, who authorized trespass charges to be pursued against the Horas.

The next day, Officer Nelson went in uniform to the Tukens Farm Market to

discuss Risner’s complaint about the location of the signs. In the presence of

customers, the officer demanded to speak to Mr. Hora, who came in from the

fields. Officer Nelson explained the reason for his visit. Mr. Hora and Officer

Nelson then proceeded to the location of the signs. Hora insisted that the signs

were on his own property, and pointed out two posts that showed the location of

the property boundary. He also explained to Officer Nelson that the signs had

been in the same place for 14 years.

Officer Nelson nevertheless told Mr. Hora that, if he did not immediately

remove the signs, he would be arrested for trespassing. Nelson also told him that

he would be arrested if he again entered onto Mr. Risner’s property. In light of

these threats, Mr. Hora removed the signs. He then had a boundary survey

completed, which confirmed his belief that the signs had been located on his own

property. Hora submitted these survey results to Perry Township. He asked that

the records regarding his property boundary, and the records of the investigation,

be corrected, and that Risner be informed of the true property boundaries. He

does not believe that the Township took any remedial action, given that Risner

continues to assert ownership of this portion of Plaintiffs’ property.

On October 19, 2018, the Horas, along with Tukens, LLC, filed suit against

Rick Risner, Perry Township, Stephen Nelson and William Wortman. Doc. #1. An

Amended Complaint, filed on November 15, 2019, Doc. #26, seeks relief under 42

U.S.C. § 1983 for alleged violations of Plaintiffs’ Fourth, Fifth, Sixth, and

Fourteenth Amendment rights. It also includes a state law claim of “emotional

distress.” The Perry Township Defendants have filed a Motion for Judgment on

the Pleadings, Doc. #30, seeking dismissal of all claims brought against them.

li. Fed. R. Civ. P. 12(c)

Motions for judgment on the pleadings under Federal Rule of Civil Procedure

12(c) are analyzed under the same standard as motions to dismiss under Federal

Rule of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v. National Collegiate

Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). “For purposes of a motion for

judgment on the pleadings, all well-pleaded material allegations of the pleadings of

the opposing party must be taken as true, and the motion may be granted only if

the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase

Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and

quotation marks omitted). However, the court “need not accept as true legal

conclusions or unwarranted factual inferences.” /d. at 581-82 (citing Mixon v.

Ohio, 193 F.3d 389, 400 (6th Cir.1999)).

To withstand a Rule 12(c) motion for judgment on the pleadings, “a

complaint must contain direct or inferential allegations respecting all the material

elements under some viable legal theory.” Commercial Money Ctr., Inc. v. Illinois

Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). “The factual allegations in the

complaint need to be sufficient to give notice to the defendant as to what claims

are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the

legal claim plausible, .e., more than merely possible.” Fritz v. Charter Twp. of

Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. /qba/, 556 U.S.

662 (2009)). A “legal conclusion couched as a factual allegation” need not be

accepted as true, nor are formulaic recitations of the elements of a cause of action

sufficient. Hensley Mig. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)

(quoting Bel! Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

ll. Analysis

A. Perry Township Trustee Dale Seim, Montgomery County Prosecutor’s

Office, and Perry Township Police Department

When Plaintiffs filed their Amended Complaint, they also sent “Notice” to

Perry Township Trustee Dale Seim, the Montgomery County Prosecutor’s Office,

and the Perry Township Police Department. Although these entities are listed in

the caption, Doc. #26, PagelD#139, the Amended Complaint contains no

allegations of wrongdoing by any of them. On this basis, Defendants argue that,

to the extent that Plaintiffs are attempting to sue these entities, they have failed to

state a claim upon which relief may be granted. In response, Plaintiffs admit that

they are not asserting claims against any of these entities. Doc. #34,

PagelD#214. Given that this individual and these entities have not been named as

party defendants, and that the Perry Township Police Department is not su/ juris,

the Court need not address this issue.

B. Section 1983 Claims (Counts I-IV)

In Counts | through IV of the Amended Complaint, Plaintiffs seek recovery

under 42 U.S.C. 8 1983 for violations of their constitutional rights. Section 1983

not itself a source of substantive rights,’ but merely provides ‘a method for

vindicating federal rights elsewhere conferred.'” Graham v. Connor, 490 U.S.

386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979)).

In order to recover under 8 1983, a plaintiff must prove that a defendant, while

acting under color of state law, violated rights secured by the Constitution or laws

of the United States. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 150

(1970). Here, it is undisputed that, at all relevant times, Stephen Nelson, William

Wortman and Perry Township were acting under color of state law. At issue is

whether Plaintiffs have stated a plausible constitutional violation.

lL. Fifth and Sixth Amendment Claims (Counts II and III)

In their Motion to Dismiss, Defendants argue that Count Il, alleging a

violation of the Fifth Amendment’s Due Process Clause, must be dismissed

because the Fifth Amendment applies only to the federal government, Bybee v.

City of Paducah, 46 F. App’x 735, 737 (6th Cir. 2002), and Plaintiffs have not

alleged that Defendants are federal government employees. By failing to address

this argument, Plaintiffs impliedly concede that this claim fails on the merits. See

Brown v. VHS of Michigan, Inc., 545 F. App'x 368, 372 (6th Cir. 2013) ("a

plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in

response to a motion.").

Likewise, Defendants argue that Count Ill, alleging a violation of the Sixth

Amendment must be dismissed because the Sixth Amendment is not implicated

unless a citizen is charged with a crime. See e.g., Illinois v. Perkins, 496 U.S.

292, 299 (1990). The Amended Complaint expressly states that no criminal

charges were ever filed against any of the Plaintiffs. Doc. #26, PagelD#144.

Again, Plaintiffs impliedly concede that this claim fails on the merits.

The Court concludes that Plaintiffs have failed to state plausible violations of

the Fifth and Sixth Amendments. Accordingly, the Court DISMISSES Counts II and

Ill of the Amended Complaint WITH PREJUDICE.

2. Fourth and Fourteenth Amendment Claims (Counts | and IV)

The Court turns now to the two § 1983 claims that are in dispute, Counts |

and IV, alleging violations of the Fourth and Fourteenth Amendments respectively.

The Court will first address the claims brought against Nelson and Wortman, and

then the claims brought against Perry Township.

a. Official Capacity Claims

Nelson and Wortman were sued in their individual and official capacities. As

the Supreme Court explained in Kentucky v. Graham, 473 U.S. 159 (1985), an

individual-capacity suit seeks to impose personal liability on a government official

for actions taken under color of state law. An official-capacity suit, however, is

the equivalent of an action against the governmental entity of which the officer is

an agent. /d. at 165.

Because the official-capacity claims against Nelson and Wortman are

duplicative of the claims brought against Perry Township, they will be DISMISSED

WITH PREJUDICE on that basis. See Doe v. Claiborne Cty., 103 F.3d 495, 509

(6th Cir. 1996) (affirming district court's dismissal of official capacity claims

against school officials as duplicative of claims against county). The Court will

address the claims brought against Perry Township later in this Decision and Entry.

b. Individual Capacity Claims

Nelson and Wortman argue that they are entitled to qualified immunity on

the § 1983 claims asserted against them in their individual capacities. The

doctrine of qualified immunity shields government officials from liability for civil

damages for actions taken in the scope of their duties, unless their conduct

violates “clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The doctrine operates “to ensure that before they are subjected to suit,

officers are on notice their conduct is unlawful.” Saucier v. Katz, 533 U.S. 194,

206 (2001). “Qualified immunity gives government officials breathing room to

make reasonable but mistaken judgments about open legal questions. When

properly applied, it protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Ashcroft v. al—Kidd, 563 U.S. 731, 743 (2011)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). After a defendant raises a

claim of qualified immunity, the plaintiff bears the burden of rebutting it. Ciminillo

v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006).

To determine whether Nelson and Wortman are entitled to qualified

immunity, the Court must consider: (1) whether, taken in the light most favorable

to the plaintiff, “a constitutional right would have been violated on the facts

alleged”; and (2) whether the right at issue was “clearly established.” Saucier,

533 U.S. at 201. These questions need not be considered in order. Pearson v.

Callahan, 555 U.S. 223, 236 (2009). If the answer to either inquiry is “no,” the

government officials are entitled to qualified immunity.

The Court must conduct this qualified immunity analysis with respect to

both of the remaining § 1983 claims asserted against Nelson and Wortman.

(i) Fourth Amendment

The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures. U.S. Const. amend. IV.

Count | of the Amended Complaint alleges that Officer Nelson “took possessory

control over the Plaintiffs’ Property when he ordered . . . that the Signs be taken

down and removed at the Property,” and that Nelson “took control over Mr. Hora’s

person when he threaten[ed] him with arrest.” Doc. #26, PagelD#145. Plaintiffs

further allege that these acts “were undertaken at the direction and with consent

of Wortman while a police supervisor for Perry Township.” /d. at PagelD#146.

It appears that Plaintiffs have now abandoned any claim that there was an

unreasonable seizure of property given that they failed to defend against

Defendants’ argument that Plaintiffs failed to state a plausible claim. In terms of

qualified immunity on Count I, the Court will therefore limit its inquiry to the

question of whether, based on the facts alleged, Mr. Hora was “seized” within the

meaning of the Fourth Amendment and, if so, whether that seizure was

unreasonable. Defendants argue that the conduct alleged in the Amended

Complaint does not amount to a “seizure.” The Court agrees.

A “seizure” may occur even without a “technical arrest.” Jerry v. Ohio, 392

U.S. 1, 19 (1968). Nevertheless, “not every encounter between a civilian and the

police constitutes a ‘seizure’ invoking fourth amendment safeguards.” United

States v. Taylor, 956 F.2d 572, 575 (6th Cir. 1992). “The Fourth Amendment

does not apply to consensual encounters with the police. Rather, the ‘safeguards

of the Fourth Amendment, with respect to police/citizen contact, vest only after a

citizen has been seized.’” O'Malley v. City of Flint, 652 F.3d 662, 668 (6th Cir.

2011) (quoting Smoak v. Hall, 460 F.3d 768, 778 (6th Cir. 2006)).

A person is considered to be “seized” only when, “in view of all of the

circumstances surrounding the incident, a reasonable person would have believed

that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554

(1980). Such conduct might include “the threatening presence of several officers,

the display of a weapon by an officer, some physical touching of the person of the

citizen, or the use of language or tone of voice indicating that compliance with the

officer's request might be compelled.” /d. In Florida v. Bostick, 501 U.S. 429

(1991), the Supreme Court stated, “[o]ur cases make it clear that a seizure does

not occur simply because a police officer approaches an individual and asks a few

questions .... Only when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen may we conclude that

a ‘seizure’ has occurred.” /d. at 434 (internal quotation omitted).

Based on the facts alleged in this case, the Court finds that Plaintiffs have

failed to state a plausible claim that Mr. Hora was “seized” within the meaning of

10

the Fourth Amendment. They allege that Officer Nelson arrived in uniform and

demanded in a loud voice to speak to Mr. Hora. Mr. Hora came in from the

adjacent fields to meet with him. The two of them then “proceeded to the location

of the Signs at which time Nelson advised Mr. Hora that Signs were on Mr.

Risner’s Property.” Doc. #26, PagelD#143. Mr. Hora, pointing out two landmarks

showing the property boundaries, explained why he believed that the signs were

on his own property. Nevertheless, Officer Nelson informed Mr. Hora that “if the

Signs were not immediately removed[,] he would be arrested for trespassing.” /d.

In light of this threat, Mr. Hora agreed to remove the signs.

Standing alone, verbal threats of arrest do not support a constitutional claim.

Thacker v. City of Columbus, 328 F.3d 244, 258 (6th Cir. 2003). See a/so

Schuler v. Village of Newcomerstown, No. 5:16-cv-1466, 2017 WL 1199170, at

(N.D. Ohio Mar. 31, 2017) (“Mere words, even spoken threats of serious harm

or arrest, however, do not constitute an infringement of a constitutional right and

are not actionable under 8 1983.”).

There is no “seizure” unless the officer’s conduct “somehow restricts the

subject's physical liberty.” Ewo/ski v. City of Brunswick, 287 F.3d 492, 507 (6th

Cir. 2002). See also United States v. Baker, 254 F. Supp. 2d 768, 773 (S.D. Ohio

2003) (holding that there was no “seizure” where no one told suspect that he was

not free to move about his house, no weapons were drawn or displayed, and he

was not restrained by means of physical force or show of authority).

El

Plaintiffs do not allege that Officer Nelson in any way restrained Mr. Hora’s

physical liberty by means of physical force or a show of authority. Although

Officer Nelson allegedly demanded “in a loud voice” to speak to Mr. Hora, their

interactions never rose above the level of a consensual encounter. Mr. Hora

voluntarily came in from the fields to speak to him. Plaintiffs do not allege that

Officer Nelson displayed his weapon at any time, made any physical contact with

Mr. Hora, or forced him to accompany him to the location of the signs. Although

Nelson allegedly threatened to arrest Mr. Hora for trespassing if he did not remove

the signs, this threat is insufficient to constitute a “seizure” within the meaning of

the Fourth Amendment. 7hacker, 328 F.3d at 258.

Based on the foregoing, the Court finds that, based on the facts alleged,

Officer Nelson did not violate Mr. Hora’s Fourth Amendment right to be free of

unreasonable “seizures.” Officer Nelson is therefore entitled to qualified immunity

on this claim.

William Wortman is likewise entitled to qualified immunity on this claim.

Plaintiffs allege that Nelson acted at the direction and with the consent of his

supervisor, William Wortman. However, because Officer Nelson did not “seize”

Mr. Hora within the meaning of the Fourth Amendment, supervisory liability cannot

attach to William Wortman with respect to this claim. See McQueen v. Beecher

Cmty. Schs., 433 F.3d 460, 470 (6th Cir. 2006) (“a prerequisite of supervisory

liability under 8 1983 is unconstitutional conduct by a subordinate of the

12

supervisor.”); S.L. ex rel. K.L. v. Pierce Twp. Bd. of Trustees, 771 F.3d 956, 963

(6th Cir. 2014) (same).

On this basis, the Court SUSTAINS Defendants’ Motion for Judgment on the

Pleadings on Count | with respect to the claims brought against Stephen Nelson

and William Wortman in their individual capacities.

(ii) Fourteenth Amendment

The Fourteenth Amendment to the United States Constitution provides that

no State shall deprive any person of life, liberty, or property without due process of

law. U.S. Const. amend. XIV, 8 1. The procedural due process portion of this

constitutional guaranty requires that, when a significant property interest is at

stake, “the right to notice and an opportunity to be heard must be granted at a

meaningful time and in a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80

(1972) (internal quotation omitted).

The Court has previously construed Count IV of the Amended Complaint as

asserting a violation of the Fourteenth Amendment's procedural due process

protections. The Court found that, reading the Amended Complaint as a whole,

Plaintiffs allege that they were deprived of the use of their personal property, /e.,

the signs advertising the farm market, without notice and a meaningful opportunity

to be heard. '

' The fact that Plaintiffs have abandoned their Fourth Amendment claim with

respect to the seizure of the signs is not fatal to their Fourteenth Amendment due

process claim. The issue of whether a seizure of property is unreasonable under

13

The threshold issue with respect to this claim is whether the law-of-the-case

doctrine mandates denial of Defendants’ Motion for Judgment on the Pleadings.

“Under the law of the case doctrine, findings made at one stage in the litigation

should not be reconsidered at subsequent stages of that same litigation. ” Dixie

Fuel Co., LLC v. Dir., Office of Workers’ Comp. Programs, 820 F.3d 833, 843 (6th

Cir. 2016). It applies “only to issues that have been decided explicitly (or by

necessary implication) by a court.” Bowles v. Russel//, 432 F.3d 668, 676-77 (6th

Cir. 2005). The law-of-the-case doctrine, however, is discretionary, and it does

not constrain the court from reconsidering a prior clearly-erroneous ruling. /d. at

677.

In sustaining Plaintiffs’ Motion for Leave to File Amended Complaint, the

Court noted that a proposed amendment is futile if it would not survive a Rule

12(b)(6) motion to dismiss. Doc. #25, PagelD#133. The Court rejected

Defendants’ claim that the proposed amendment would be futile, at least with

respect to Plaintiffs’ Fourteenth Amendment procedural due process claim. /d. at

PagelD## 134-36.

Citing the law-of-the-case doctrine, Plaintiffs argue that, because the same

standard governs both issues, the Court’s previous decision on the question of

futility precludes a finding that Plaintiffs have failed to state a plausible due

process violation. They further argue that, in holding that the proposed

the Fourth Amendment is clearly distinguishable from the issue of whether

deprivation of that property violated the owner’s procedural due process rights.

14

amendment would not be futile, the Court also impliedly determined that Nelson

and Wortman are not entitled to qualified immunity on this claim.

As a general rule, the Court agrees that, because the standard is the same, a

finding that a proposed amendment would not be futile equates to a finding that

Plaintiffs have stated a plausible claim for relief. See, e.g., Firestone v. Berrios, 42

F. Supp. 3d 403, 412-13 (E.D.N.Y. 2013) (holding that, under the law-of-the-case

doctrine, a prior decision granting a motion for leave to amend the complaint

precluded the court, on a motion for judgment on the pleadings, from reanalyzing

whether plaintiff had stated a valid cause of action).

The Court, however, rejects Plaintiffs’ argument that, in determining that the

proposed amendment would not be futile, the Court also impliedly decided the

question of qualified immunity. Qualified immunity is an affirmative defense, and

Plaintiffs are not required to plead facts to refute it. See Siefert v. Hamilton Cty.,

951 F.3d 753, 761 (6th Cir. 2020) (“Federal Rule of Civil Procedure 8(a) requires

only that a plaintiff state a claim, not that a plaintiff show that he can overcome an

affirmative defense.").?

In determining whether Plaintiffs should be granted leave to amend, the

Court looks only to the allegations in the proposed amended complaint to see if

they state a plausible claim for relief. Although this analysis undoubtedly touches

2 In Siefert, the Sixth Circuit noted its “general preference” for deciding qualified

immunity issues in the context of a motion for summary judgment rather than a

motion to dismiss. 951 F.3d at 761-62.

15

on the first prong of the qualified immunity analysis, /.e., whether, based on the

facts alleged, a constitution violation occurred, it does not reach the second prong

of the qualified immunity analysis, 7e., whether the law was clearly established.

Accordingly, the law-of-the-case doctrine does not necessarily prevent the Court

from granting Defendants’ Motion for Judgment on the Pleadings with respect to

the Fourteenth Amendment procedural due process claim.

The first step in the qualified immunity analysis is to determine whether,

based on the facts alleged, Nelson and/or Wortman, violated Plaintiffs’ procedural

due process rights. "To state their procedural due process claim, Plaintiffs must

establish three elements: (1) that they have a property interest protected by the

Due Process Clause; (2) that they were deprived of this property interest; and (3)

that the state did not afford them adequate pre-deprivation procedural rights."

Cahoo v. SAS Analytics Inc., 912 F.3d 887, 900 (6th Cir. 2019).

Property interests are not created by the Constitution, but arise from state

law. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). It appears

to be undisputed that Plaintiffs have a protected property interest in the signs used

to advertise their farm market. Ohio permits outdoor advertising “in all districts

zoned for industry, business, or trade, or lands used for agricultural purposes.”

Ohio Rev. Code § 519.20. Plaintiffs have also adequately alleged that they were

deprived of that property interest when Officer Nelson ordered them to

immediately take down the signs. Doc. #26, PagelD#148.

16

The next question is whether Plaintiffs have stated a plausible claim that

Defendants deprived them of this property interest without pre-deprivation notice

and a meaningful opportunity to be heard. Warren v. City of Athens, 411 F.3d

697, 709 (6th Cir. 2005).* Plaintiffs allege that when Officer Nelson told Mr. Hora

that the signs were on Mr. Risner’s property, Mr. Hora told Officer Nelson why he

disagreed. Hora pointed out the specific landmarks that he believed defined the

property boundary. Defendants maintain that these factual allegations establish

that Hora was, in fact, given an opportunity to be heard concerning the property

line dispute before being ordered to remove the signs.

The Court disagrees. The fact that Hora verbally protested when Officer

Nelson accused him of placing signs on Risner’s property does not necessarily

satisfy due process requirements. In determining what process is owed, the court

applies the three-part balancing test set forth in Mathews v. Eldridge: (1) “the

private interest that will be affected by the official action;” (2) “the risk of an

erroneous deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural safeguards;” and (3)

“the Government's interest, including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement

would entail.” 424 U.S. 319, 335 (1976).

° Plaintiffs have not alleged that the deprivation resulted from a “random and

unauthorized act” resulting in a loss for which post-deprivation remedies would be

inadequate. See Warren, 411 F.3d at 709.

17

Here, it could be argued that, at the very least, due process required that,

before Plaintiffs were forced to remove the signs, they be given the opportunity to

hire a surveyor and present evidence to support their claim that the signs were not

on Mr. Risner’s property. Based on the foregoing, the Court finds that the

allegations in the Amended Complaint are sufficient to state a plausible procedural

due process claim against Officer Nelson.

Plaintiffs’ allegations are also sufficient to state a plausible procedural due

process claim against William Wortman. Although Wortman cannot be held liable

on a respondeat superior basis for Nelson's allegedly unconstitutional conduct, he

may be held liable if he himself “participated, encouraged, authorized or acquiesced

in” the offending conduct. Doe ex rel. Doe v. City of Roseville, 296 F.3d 431,

440 (6th Cir. 2002). Here, Plaintiffs allege that Wortman was Nelson's supervisor

and that Nelson’s conduct was “undertaken at the direction and with consent of

Wortman.” Doc. #26, PagelD##140, 146 (emphasis added).

The next step in the qualified immunity analysis is to determine whether the

law was clearly established such that reasonable government officials standing in

the shoes of Nelson and Wortman would have known that their conduct—in

ordering the Horas to remove the signs prior to notice and a hearing— was

unconstitutional. Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014) (“a

defendant cannot be said to have violated a clearly established right unless the

right’s contours were sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was violating it.”).

18

In determining whether the right is clearly established, the court looks “first

to decisions of the Supreme Court,” then to Sixth Circuit cases and “decisions of

other courts within the circuit, and then to decisions of other Courts of Appeal.”

Andrews v. Hickman Cty., 700 F.3d 845, 853 (6th Cir. 2012). Although the

conduct at Issue in those cases need not be identical, “existing precedent must

have placed the statutory or constitutional question beyond debate.” Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011). See also Baker v. Union Twp., 587 F. App’x

229, 233 (6th Cir. 2014) (noting that the right at issue should not be defined at “a

high level of generality,” but neither should it be defined so narrowly to require the

“circumstances of the alleged violation” to be “identical to cases already

decided.”).

In this case, the Court finds that the relevant law was clearly established at

the time the incident occurred. Plaintiffs cite to Hannah v. Larche, 363 U.S. 420,

442 (1960) for the general proposition that, in making binding determinations

directly affecting the legal rights of individuals, the government must allow

individuals “the procedures which have traditionally been associated with the

judicial process.”

Abbott v. Latshaw, 164 F.3d 141 (3d Cir. 1998), cited in this Court's

Decision and Entry Sustaining Plaintiffs’ Amended Motion for Leave to File

Amended Complaint, Doc. #25, PagelD##135-36, is perhaps more instructive

given the similarity of facts. It involved a dispute between Laurie Latshaw and

Mark Abbott, her ex-husband, over ownership of a van. After inspecting a

19

certificate of title and other documents shown to him by Latshaw, Constable

Albert Diehl determined that Latshaw was entitled to possession of the vehicle.

He then approached Abbott, who refused to turn over the keys, insisting that he

had paid for the van and had driven it for seven years. He told Diehl that he had a

bill of sale at home that would prove that he owned it. Diehl, however, refused to

let him go home to get that document, and threatened to arrest him if he drove off.

Other officers arrived on the scene and gave Latshaw immediate possession of the

van.

Abbott then filed suit against the officers, alleging procedural due process

violations. The district court granted summary judgment in favor of Diehl on

qualified immunity grounds. The Third Circuit reversed, holding that “Abbott has a

strong claim against Diehl for violating his right to procedural due process by failing

to give him advance notice and an opportunity to be heard prior to Latshaw’s

seizure of the van.” 161 F.3d at 147.

On the qualified immunity issue, the Court held that “the applicable law

regarding procedural due process was ‘clearly established’ at the time of the

alleged violation of Abbott's rights. As we noted earlier, the Supreme Court's 1972

decision in Fuentes held that due process protects possessory interests in property.

407 U.S. at 87, 92 S.Ct. 1983." /d. at 148. The Court continued:

At the heart of Fuentes is the principle that it is not for law

enforcement officers to decide who is entitled to possession of

property. Rather, it is the domain of the courts, and citizens are to

have a meaningful opportunity to be heard as to their rights before

they are finally deprived of possession of property. Diehl's curbside

20

courtroom, in which he decided who was entitled to possession, is

precisely the situation and deprivation of rights to be avoided... . In

his single-minded reliance on Latshaw's documentation, Diehl rode

roughshod over Fuentes and ignored the broader context of the

seizure which militated against the legality and reasonableness of his

hasty conclusion that Latshaw, not Abbott, was entitled to immediate

possession of the van. An official familiar with the facts then known

and the law then applicable would have reasonably believed that his

conduct was violating clearly established law.

Id. at 149.

This case is factually similar. Officer Nelson investigated Rick Risner’s

complaint about the location of the signs and determined that they were improperly

located on Risner’s property. He then approached Mr. Hora to confront him with

Risner’s claim. Hora explained that the signs had been located in the same place

for fourteen years, and he showed Officer Nelson the landmarks demarcating the

property boundaries. Nelson nevertheless demanded that Hora remove them

immediately or face arrest. As in Abbott, “[a]n official familiar with the facts then

known and the law then applicable would have reasonably believed that his

conduct was violating clearly established law.” /d. at 149.*

* Defendants argue they are entitled to qualified immunity because Officer Nelson

researched the property boundaries before approaching Mr. Hora and, even if

Nelson's conclusion was incorrect, it was a reasonable mistake. The relevant

question, however, is not whether Nelson made a reasonable mistake in

determining the property boundaries. The relevant question is whether he made a

reasonable mistake in ordering Hora to remove the signs without giving him notice

and a meaningful opportunity to be heard.

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The Court concludes that Officer Nelson and William Wortman are not

entitled to qualified immunity on Plaintiffs’ Fourteenth Amendment procedural due

process claim. Accordingly, the Court OVERRULES Defendants’ Motion for

Judgment on the Pleadings concerning Count IV of the Amended Complaint

brought against Nelson and Wortman in their individual capacities.

a: Claims Against Perry Township

The Court turns next to the claims brought against Perry Township. Given

the Court’s finding that Plaintiffs failed to state a plausible claim of violations of

their Fourth, Fifth, or Sixth Amendment rights, it is axiomatic that Perry Township

cannot be held liable on Counts I, Il or Ill. The only question is whether Plaintiffs

have stated a plausible § 1983 claim against Perry Township stemming from the

alleged Fourteenth Amendment procedural due process violation.

A governmental entity, like Perry Township, cannot be held liable under

§ 1983 merely because it employs an individual who engages in unconstitutional

conduct. Rather, a plaintiff must prove that a policy or custom of the governmental

entity was the “moving force” behind the alleged constitutional violation. Monel/ v.

Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). “Monell reasoned that recovery

from a municipality is limited to acts that are, properly speaking, acts ‘of the

municipality’ — that is, acts which the municipality has officially sanctioned or

ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

A policy or custom giving rise to municipal liability may consist of: “(1) the

municipality's legislative enactments or official agency policies; (2) actions taken

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by officials with final decision-making authority; (3) a policy of inadequate training

or supervision; or (4) a custom of tolerance or acquiescence of federal rights

violations.” Thomas v. City of Chattanooga, 398 F.3d 426, 429 (6th Cir. 2005).

As an initial matter, the Court rejects Plaintiffs’ claim that the law-of-the-

case doctrine precludes dismissal of the due process claim against Perry Township.

Although the Court previously held that Plaintiffs had stated a plausible Fourteenth

Amendment procedural due process claim, Doc. #25, PagelD##135-36, the Court

did not specifically decide whether Plaintiffs’ allegations were sufficient to trigger

Perry Township's liability, and no such holding is implicit in that decision.

Plaintiffs attempt to impose municipal liability under two theories: (1) actions

taken by officials with final decision-making authority; and (2) official agency

policies. The allegations contained in the Amended Complaint are insufficient to

support the first theory. Although the Amended Complaint alleges that Wortman

was Nelson’s supervisor, Doc. #26, PagelD##140-41, Wortman’s exact title is not

identified, and Plaintiffs do not allege that Wortman had final decision-making

authority. See Pembaur, 475 U.S. at 481 (“[mJunicipal liability attaches only

where the decisionmaker possesses final authority to establish municipal policy

with respect to the action ordered.”).

With respect to the second theory, the Amended Complaint alleges that the

actions taken by Nelson and Wortman “were undertaken pursuant to policies,

protocols, and/or procedures authorized by Perry Township.” Doc. #26,

PagelD#146. However, as Defendants point out, Plaintiffs do not identify any

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particular policy, protocol or procedure. Nor do they explicitly allege that such

policy, protocol or procedure was the moving force behind the alleged

constitutional violation.

Defendants maintain that Plaintiffs’ allegations constitute a threadbare legal

conclusion couched as a factual allegation and should be deemed insufficient under

Twombly. The Court agrees. See, e.g., Wilson v. Trumbull Cty. Dep't of Job &

Family Servs., No. 4:12cv02163, 2013 WL 5820276, at *9 n.7 (N.D. Ohio Oct.

29, 2013) (acknowledging that, “in the absence of discovery, civil rights plaintiffs

face challenges in pleading the existence of a municipal custom or policy,” but

holding that 7womb/y and /qbal/ require more than a “perfunctory assertion of an

unspecified ‘custom and practice.’”).

Plaintiffs note that the Amended Complaint also alleges that Perry

Township's new police chief told Mr. Hora that “they have since changed their

approach to future boundary disputes, and would treat such disputes as civil

matters.” Doc. #26, PagelD#144. Plaintiffs argue that it can reasonably be

inferred from this allegation that the Township’s previous “approach,” /.e., policy,

protocol or procedure, was the moving force behind the alleged procedural due

process violations.° The police chief’s statement, however, is inadmissible to

° Plaintiffs also allege that, after Hora obtained the survey proving that the signs

were located on his land, the Township failed to take any corrective action. Doc.

#26, PagelD##143-44. This is largely irrelevant, given that the failure to take

corrective action after the alleged due process violation occurred cannot logically

be the moving force behind that constitutional violation.

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prove that the previous “policy or procedure” was unconstitutional. Evidence of a

subsequent remedial measure is not admissible to prove culpable conduct. Fed. R.

Evid. 407.

The Court finds that Plaintiffs have failed to state a plausible claim for relief

against Perry Township. The Court therefore SUSTAINS Defendants’ Motion for

Judgment on the Pleadings on Count IV, as asserted against Perry Township.

4, Punitive Damages

Defendants have also moved to dismiss Plaintiffs’ claim for punitive

damages. Under 8 1983, punitive damages cannot be recovered against a

municipality, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 260 n.21

(1981). Although punitive damages may be recovered against individuals, a

plaintiff must show that a defendant's conduct was motivated by evil motive or a

reckless or callous indifference to a federally-protected right. Smith v. Wade, 461

U.S. 30, 56 (1983). Defendants argue that, because Plaintiffs have not alleged

that Nelson’s or Wortman’s conduct rose to this level, they have failed to state a

plausible claim for relief. Again, Plaintiffs fail to respond to this argument,

impliedly conceding that their claim for punitive damages is subject to dismissal.

The Court SUSTAINS Defendants’ Motion for Judgment on the Pleadings

with respect to the claim for punitive damages against Perry Township, Nelson and

Wortman.

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Cc. “Emotional Distress” Claim (Count V)

Count V of the Amended Complaint asserts a state law claim of “emotional

distress” against all Defendants. Plaintiffs allege that, as a result of Defendants’

actions they were embarrassed and subjected to inquiries by customers about why

the signs were removed. Doc. #26, PagelD#152.

The Court notes that Ohio does not recognize a cause of action for

“emotional distress.” Plaintiffs do not specify whether they intend to assert a

claim for intentional or negligent infliction of emotional distress. Nevertheless,

because claims of negligent infliction of emotional distress are available only to

bystanders who witness an accident or are in fear of physical danger, Kelly v. First

Data Corp., No. 1:19-cv-372, 2020 WL 419440, at *9 (S.D. Ohio Jan. 27, 2020),

the Court presumes that Plaintiff intended to assert a claim of intentional infliction

of emotional distress.

In their Motion for Judgment on the Pleadings, Defendants argue they are

statutorily immune under Chapter 2744 of the Ohio Revised Code. They argued

that Perry Township is immune from liability because the provision of police

services is a governmental function and none of the immunity exceptions applies.

See also Grassia v. Cleveland, No. 93647, 2010 WL 2206252, at *4 (8th Dist.

June 3, 2010) ("Because Section 2744.02(B) includes no specific exceptions for

intentional torts, courts have consistently held that political subdivisions are

immune from intentional tort claims.") (internal quotation omitted).

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Defendants also argue that Nelson and Wortman were statutorily immune

because none of the exceptions set forth in Ohio Revised Code § 2744.03(A)(6)

applies. By not responding to these arguments, Plaintiffs again impliedly concede

that they cannot recover damages on this claim from Nelson, Wortman or Perry

Township. The Court therefore DISMISSES Count V WITH PREJEUDICE as to

these three Defendants.

IV. Conclusion

For the reasons set forth above, the Court SUSTAINS IN PART and

OVERRULES IN PART the Motion for Judgment on the Pleadings brought by

Defendants Perry Township, Stephen Nelson, and William Wortman, along with

Trustee Dale Seim, Montgomery County and the Perry Township Police

Department. Doc. #30.

The 8 1983 claims against Perry Township, Nelson and Wortman based on

alleged violations of Plaintiffs’ Fourth, Fifth and Sixth Amendment rights (Counts I,

Il, and Ill) are DISMISSED WITH PREJUDICE, as are the claims of “emotional

distress” (Count V) and the claims for punitive damages.

To the extent that Plaintiffs have alleged violations of their Fourteenth

Amendment procedural due process rights (Count IV), they may proceed with their

§ 1983 claims brought against Nelson and Wortman in their individual capacities.

The due process claims against Perry Township, however, are DISMISSED WITH

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PREJUDICE. All claims brought against Nelson and Wortman in their official

capacities are DISMISSED as duplicative of the claims against Perry Township.

All claims against Defendant Rick Risner remain pending.

WJeline SS ons

Date: August 13, 2020

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

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