Whitfield v. Muskingum County Ohio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BENYEHUDAH WHITFIELD, et al.,

Plaintiffs,

Case No. 2:23-cv-1448

v. JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Kimberly A. Jolson

MUSKINGUM COUNTY, OHIO, et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Defendants’ Muskingum County, Ohio, Muskingum

County Prosecuting Attorney Ronald Welch, and Muskingum County Sheriff’s Office Detective

Richard Perry’s Motion for Judgment on the Pleadings. (Mot., ECF No. 7.) Plaintiffs BenYeHudah

Whitfield and BenYeHudah’s National Transport Service, LLC (“BNTS”) responded and opposed

Defendants’ Motion. (Opp., ECF No. 8.) Defendants replied in support of their Motion. (Reply,

ECF No. 12.) For the reasons below, the Court GRANTS IN PART and DENIES IN PART

Defendants’ Motion for Judgment on the Pleadings.

I. BACKGROUND

This case is about whether Plaintiffs’ constitutional rights were violated when the

Muskingum County Sheriff’s Office and Prosecutor’s Office impounded Plaintiff BenYeHudah

Whitfield’s van for over 70 days without a post-seizure hearing.

A. The arrest of Kahmayee Whitfield and the impoundment of the van.

On July 30, 2022, police officers with the Muskingum County Sheriff’s Office initiated a

traffic stop of Kahmayee Whitfield, Plaintiff BenYeHudah’s brother. (Compl., ¶ 19.) Kahmayee

worked as an independent contractor for his brother’s company, BNTS, and was making a delivery

when he was stopped by law enforcement. (Id. ¶¶ 15–16.) BNTS is a delivery company and

Kahmayee was driving one of two cargo vans owned by BenYeHudah and used to transport cargo

for BNTS. (Id. ¶¶ 12, 13.)

Kahmayee was stopped for purportedly running over the white line on the shoulder of the

road. (Id. ¶ 19.) After initiating the traffic stop, the Muskingum County Sheriff’s Office brought a

drug sniffing canine to the scene and the canine alerted law enforcement to the presence of

narcotics in the vehicle. (Id. ¶ 22.) Following the positive alert, police searched the van and found

marijuana and two loaded firearms in a bag located behind the driver’s seat. (Id. ¶¶ 25–26; see also

ECF No. 3-1, PageID 38, 49–50 (a Maverick 12-gauge shotgun and Armi .380 caliber pistol).)

Kahmayee was arrested and charged with improper handling of a firearm under Ohio

Revised Code § 2923.16(b). (Compl., ¶ 27.) Because of his arrest, the police seized and impounded

the van. (Id. ¶ 28.) A few days later a grand jury returned an indictment charging Kahmayee with

two counts of improperly handling a firearm in a motor vehicle. (Id. ¶ 29; see also ECF No. 3-1,

PageID 61–62.) The Indictment includes language subjecting the property listed in the Indictment

(the Maverick 12-gauge shotgun and Armi .380 caliber pistol) to civil asset forfeiture. (Id.)

B. During Kahmayee’s criminal prosecution, BenYeHudah worked to secure

the return of the van and the van’s cargo.

BenYeHudah alleges that he learned of the van’s impoundment one day after Kahmayee

was arrested and immediately began working to get back the van and its cargo. (Compl., ¶ 32.) He

contacted the Muskingum County Jail and the Prosecutor’s Office, where he reached Defendant

Ronald Welch, Muskingum County’s elected prosecutor. (Id. ¶¶ 34, 36.) Prosecutor Welch

informed BenYeHudah that the van would not be released to him and that he should contact the

Sheriff’s Office to discuss the return of the van’s cargo. (Id. ¶ 38.)

A few days later, Muskingum County released the cargo of the van to BenYeHudah after

searching the vehicle. (Id. ¶¶ 43–45.) BenYeHudah consented to the search of the van to obtain

the release of the van’s cargo. (Id.) Defendant Perry, a detective with the Muskingum County

Sheriff’s Office, confirmed this in his August 2, 2022 report. (ECF No. 3-1, PageID 74.)

After receiving the van’s cargo, BenYeHudah continued to communicate with the

Muskingum County Prosecutor’s Office and the Muskingum County’s Sheriff’s Office to obtain

the release of the van. (Compl., ¶¶ 54–55, 61, 63, 68–69.) Several of BenYeHudah’s emails to

Prosecutor Welch and Detective Perry seeking the return of his van, or an explanation for why the

van would not be returned, went unanswered. (Id. ¶¶ 62, 67, 70; ECF No. 3-1, PageID 77–79.)

Eventually Detective Perry told BenYeHudah to contact the Muskingum County Prosecutor’s

Office with questions about the release of the van. (ECF No. 3-1, PageID 75.) When he did so,

Prosecutor Welch responded by referencing Rule 16 of the Ohio Rules of Criminal Procedure,

which governs the type of information a defendant is entitled to in a criminal case and how to

request that information. (Id. ¶ 64; ECF No. 3-1, PageID 79.)

C. Defendants release the van on October 11, 2022.

Two months later, on October 11, 2022, the Muskingum County Sheriff’s Office notified

BenYeHudah that the van was available for pick up. (Id. ¶ 81.) The van was thus impounded from

July 30, 2022 until October 11, 2022—just over 70 days. (Id. ¶¶ 19, 81.) Plaintiffs allege that the

van was a “critical component” of BNTS’s business and because of the van’s impoundment,

Plaintiffs suffered economic losses. (Id. ¶¶ 14, 77, 88.)

In January 2023, several months after the van was released, Kahmayee entered a plea of

no contest and was found guilty of one count of Improper Handling of a Firearm in a Motor

Vehicle. (ECF No. 3-1, PageID 69–70.)

D. Plaintiffs filed suit.

Plaintiffs filed this Complaint raising three claims. Plaintiffs allege that (1) all Defendants

violated Plaintiffs’ due process rights under 42 U.S.C. § 1983; (2) Defendants Welch and Perry

engaged in a conspiracy to violate Plaintiffs’ civil rights under 42 U.S.C. § 1985; and (3) that

Defendants violated Ohio Revised Code § 2921.45 by depriving Plaintiffs of their civil rights as

public servants. (Compl., ¶¶ 92–97.) Plaintiffs sue Prosecutor Welch in his official and individual

capacity and Detective Perry in his official capacity only.

II. LEGAL STANDARD

The Federal Rules of Civil Procedure provide that “after the pleadings are closed—but

early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P.

12(c). A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard of

review as a Rule 12(b)(6) motion. Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp.,

399 F.3d 692, 697 (6th Cir. 2005). Accordingly, the Court “must construe the complaint in a light

most favorable to plaintiffs, accept all well-pled factual allegation as true, and determine whether

plaintiffs undoubtedly can prove no set of facts in support of those allegations that would entitle

them to relief.” Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir. 2008) (citing

Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). To survive a motion for judgment on

the pleadings, the “complaint must contain either direct or inferential allegations re[garding] all

material elements to sustain a recovery under some viable legal theory.” Id. (quoting Mezibov v.

Allen, 411 F.3d 712, 716 (6th Cir. 2005)). “Conclusory allegations or legal conclusion

masquerading as factual allegations will not suffice.” Id. (citing Mezibov, 411 F.3d at 716).

When evaluating a motion for judgment on the pleadings, a court can consider the

pleadings and any written exhibits attached to the pleadings. See Gillispie v. City of Miami Twp.,

No. 3:13-cv-416, 2022 U.S. Dist. LEXIS 193831, at *12 (S.D. Ohio Oct. 24, 2022) (Rose, J.).

Although allegations in the complaint are the primary focus, a court may also consider “matters of

public record, orders [and] items appearing in the record of the case.” Id. (citing Barany-Snyder v.

Weiner, 539 F.3d 327, 332 (6th Cir. 2008)); see also Brent v. Wayne Cnty. Dept. of Hum. Servs.,

901 F.3d 656, 695 (6th Cir. 2018) (considering exhibits attached to the motion “so long as they are

referred to in the Complaint and are central to the claims contained therein.”).

III. ANALYSIS

Defendants move for judgment on the pleadings, arguing that most of Plaintiffs’ claims

lack any legal basis. The Court first addresses Defendants’ argument that BNTS lacks standing.

Finding that BNTS has standing, the Court then turns to whether Prosecutor Welch is entitled to

either absolute or qualified immunity in his role as the elected prosecutor of Muskingum County.

Then the Court dismisses as duplicative Plaintiffs’ claims against Detective Perry and Prosecutor

Welch in their official capacities, before analyzing whether Defendant Muskingum County can be

held liable as a municipality under Monell. After concluding that Plaintiffs’ may proceed on their

claims against Muskingum County, the Court finds that Defendants are entitled to statutory

immunity on Plaintiffs’ remaining state-law claims.

A. BenYeHudah’s National Transport Service, LLC’s Standing

Defendants argue that BNTS lacks standing to bring its federal claims. (Mot., PageID 125–

26.) To support this argument, Defendants assert that BNTS did not own the van to claim an injury

for standing. (Id.)

“Standing is a threshold issue for bringing a claim in federal court and must be present at

the time the complaint is filed.” Moody v. Mich. Gaming Control Bd., 847 F.3d 399, 402 (6th Cir.

2017). The general requirements of standing are familiar. Under Article III of the Constitution,

federal courts are restricted to adjudicating “Cases” and “Controversies.” U.S. Const. art. III, § 2.

“To ensure that a case or controversy is before a court and to avoid rendering an advisory opinion,

three basic requirements must be met.” Carman v. Yellen, No. 23-5662, 2024 U.S. App. LEXIS

20033, at *23–24 (6th Cir. Aug. 9, 2024). The plaintiffs must show (1) that they suffered an injury

in fact, (2) a ‘causal connection between the injury and the conduct complained of,’ and (3) a

likelihood that the injury “will be redressed by a favorable decision.” Id. (citing Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992)). “The party invoking federal jurisdiction”—here,

Plaintiffs—“must establish these elements commensurate with the burden of proof required at each

stage of the litigation.” Id. at *24. At this juncture, the Court accepts the facts as pleaded by

Plaintiffs. Kiser v. Reitz, 765 F.3d 601, 606 (6th Cir. 2014).

BenYeHudah bought the van at issue in 2021 for about $43,000.00. (Compl., ¶ 13.)

BenYeHudah allowed BNTS to use the van to deliver freight as part of the business enterprise.

(Id. ¶ 12.) Although BenYeHudah owned the van, the van was “a critical component of BNTS’s

business.” (Id. ¶ 14.) When Defendants seized and retained the van for over 70 days, BNTS

suffered lost business opportunities and lost profits because the business could not use half of its

essential equipment. (Opp., PageID 59.) Plaintiffs seek an award of monetary damages to

compensate both BenYeHudah and BNTS for the economic losses suffered for the time when the

van was seized by Muskingum County. (Compl., PageID 12.)

Accepting the facts as pleaded by Plaintiffs, BNTS has satisfied the three standing

requirements. Because the van was seized by Defendants, BNTS did not make as many deliveries

as it otherwise would have and suffered lost profit and business opportunities. BNTS’s injury is

concrete and traceable to Defendants’ conduct. See TransUnion LLC v. Ramirez, 594 U.S. 413,

425 (2021) (“The most obvious [concrete injuries] are traditional tangible harms, such as physical

and monetary harms.”). BNTS’s injury could be redressed by a favorable decision awarding

Plaintiffs monetary relief.

Since the Court finds that BNTS has standing, the Court now addresses Plaintiffs’ claims

against Prosecutor Welch and Detective Perry in their official capacities.

B. Plaintiffs’ Official-Capacity Claims Against Prosecutor Welch and

Detective Perry

Plaintiffs sue Muskingum County as well was the County’s elected prosecutor—Ronald

Welch individually and in his official capacity. (Compl., ¶ 10.) Plaintiffs also sue Defendant

Richard Perry in his official capacity as a detective employed by the Muskingum County’s Sheriff

Office. (Id. ¶ 11.) Plaintiffs allege that all Defendants violated Plaintiffs’ due process rights in

violation of 42 U.S.C. § 1983, and that Prosecutor Welch and Detective Perry engaged in a

conspiracy to violate Plaintiffs’ rights in violation of 42 U.S.C. § 1985.

Suing a government employee in his or her official capacity “generally represent[s] only

another way of pleading an action against an entity of which an officer is an agent.” Kouider v.

Parma City Sch. Dist. Bd. of Educ., 480 F. Supp. 3d 772, 780 (N.D. Ohio 2020) (quoting Kentucky

v. Graham, 473 U.S. 159, 165–66 (1985)). When a government entity is also named as a defendant,

along with the government official in his or her official capacity, federal courts will dismiss the

official capacity claim. Id.; see also Johnson v. Wash. Cnty. Career Ctr., No. 2:10-cv-076, 2010

U.S. Dist. LEXIS 62597, at *11 (S.D. Ohio June 22, 2010) (Smith, J.) (“Courts regularly dismiss

as redundant claims against agents in their official capacities when the principal entity is also

named as a defendant in the suit.”).

Here, Plaintiffs sued Defendant Muskingum County, Ohio directly as well as Prosecutor

Welch and Detective Perry in their official capacities. Since the government entity is also named

as a defendant, Plaintiffs’ official-capacity claims against Prosecutor Welch and Detective Perry

are redundant and subsumed by the claims against Muskingum County. Accordingly, Plaintiffs

claims against Prosecutor Welch and Detective Perry in their official capacities are DISMISSED.

C. Prosecutor Welch’s Immunity Under § 1983

Plaintiffs also sue Prosecutor Welch in his individual capacity under 42 U.S.C. § 1983 for

violations of their due process rights. Defendants raise both absolute and qualified immunity as

defenses to Prosecutor Welch’s liability in his individual capacity. (Mot., PageID 116–122.) The

Court will address each defense in turn.

i. Prosecutor Welch’s absolute immunity is a close call.

Defendants argue that Prosecutor Welch is entitled to absolute immunity from suit under

§ 1983 because the decision to retain the van as evidence was within the scope of his prosecutorial

immunity. (Id. PageID 118–19.)

Absolute immunity is the exception rather than the rule, and has traditionally been reserved

for those activities “intimately associated with the judicial phase of the criminal process.” Imbler

v. Pachtman, 424 U.S. 409, 430 (1979). Prosecutors have absolute immunity for the initiation and

prosecution of a criminal case, including the presentation of the State’s case at trial. Id. at 431;

Spurlock v. Thompson, 330 F.3d 791, 797 (6th Cir. 2003) (explaining that absolute immunity

applies to a prosecutor’s “professional evaluation of the evidence assembled by the police and

appropriate preparation for its presentation at trial or before a grand jury after a decision to seek

an indictment has been made.”). But a prosecutor is not entitled to absolute immunity when acting

as an administrator or investigator, instead of an advocate. Buckley v. Fitzsimmons, 509 U.S. 259,

273 (1993). “The analytical key to prosecutorial immunity, therefore, is advocacy—whether the

actions in question are those of an advocate.” Holloway v. Brush, 220 F.3d 767, 775 (6th Cir.

2000). “[T]he official seeking absolute immunity bears the burden of showing that such immunity

is justified for the function in question.” Burns v. Reed, 500 U.S. 478, 486 (1991).

Here, Defendants argue that Prosecutor Welch’s decision to maintain custody of the van as

evidence was a professional evaluation of the evidence necessary to present the state’s case against

Kahmayee at trial. (Mot., PageID 119.) Plaintiffs counter that if the Court grants Prosecutor Welch

absolute immunity, any prosecutor could retrospectively shield themself from liability by claiming

their conduct was done in preparation for a possible trial, thereby allowing the exception for a

prosecutor’s trial preparations to swallow the rule that only a prosecutor’s actions as an advocate

are entitled to immunity. (Opp., PageID 152.)

The Supreme Court and the Sixth Circuit articulated a reluctance to extend the doctrine of

absolute immunity. E.g., Burns, 500 U.S. at 486–87 (explaining the presumption that “qualified

rather than absolute immunity is sufficient to protect government officials in their exercise of their

duties”); Spurlock v. Satterfield, 167 F.3d 995, 1003 (6th Cir. 1999) (describing absolute immunity

as a shield “to ensure that those individuals intimately involved in the judicial process are able to

carry out their responsibilities without the constant threat of vexatious lawsuits, not a sword

allowing them to trample the . . . rights of others”).

The Court finds whether Prosecutor Welch’s actions were that of an advocate, or rather

those of an administrator or investigator, to be a close call. But since the Court finds that Prosecutor

Welch is entitled to qualified immunity, it need not determine whether he is entitled to absolute

immunity at this time.

ii. Prosecutor Welch is entitled to qualified immunity.

Defendants argue Plaintiffs § 1983 and § 1985 claims against Prosecutor Welch fail as a

matter of law because Prosecutor Welch is entitled to qualified immunity. (Mot., PageID 119–20.)

This Court agrees. Since the alleged unlawfulness of his conduct was not clearly established,

Prosecutor Welch is entitled to qualified immunity.

A district court may consider qualified immunity at the motion to dismiss stage. Mitchell

v. Forsyth, 472 U.S. 511, 526 (1985) (“Unless the plaintiff's allegations state a claim of violation

of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before

the commencement of discovery.”); Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation

omitted) (explaining that qualified immunity is an immunity from suit rather than a mere defense

to liability). Regardless of the stage of litigation, the Court must balance the need for public

officials to be free from the constant fear of lawsuits stemming from the performance of their

official duties, with the reality that an action for damages may offer the only avenue for vindication

of constitutional guarantees. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). The plaintiff bears

the burden of proving that the defendant is not entitled to the defense once asserted. Baker v. City

of Hamilton, 471 F.3d 601, 605 (6th Cir. 2006).

To determine whether a government official is shielded from liability by qualified

immunity, the Court asks two questions: “whether the facts that a plaintiff has alleged . . . make

out a violation of a constitutional right,” and “whether the right at issue was ‘clearly established’

at the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 231; Harlow, 457 U.S. at 818

(articulating the test for qualified immunity). For immunity to attach, both prongs must be satisfied,

but it does not matter which prong is addressed first. Pearson, 555 U.S. at 236–42. The Court

begins the analysis with the second prong—by asking whether the unlawfulness of Prosecutor

Welch’s conduct was clearly established when Plaintiffs’ van was seized and retained.

A right is clearly established if it would be clear to a reasonable official that their conduct

was unlawful in the situation they confronted. McIntyre v. Love, No. 2:23-cv-679, 2023 U.S. Dist.

LEXIS 163014, at *8 (S.D. Ohio Sep. 13, 2023) (citing Yerkes v. Ohio State Highway Patrol, No.

22-3030, 2022 U.S. App. LEXIS 35260, at *11 (6th Cir. Dec. 19, 2022)). If an official has “fair

warning” that their actions are unconstitutional, then the right is clearly established. Hood v. City

of Columbus, 827 F. App’x 464, 471 (6th Cir. 2020) (citation omitted). Generally, case law from

the United States Supreme Court, the Court of Appeals, or the highest state court is necessary to

clearly establish a right. Durham v. Nu’man, 97 F.3d 862, 866 (6th Cir. 1996).

Plaintiffs argue that the law clearly establishes that law enforcement may not retain a seized

vehicle for a prolonged period without initiating forfeiture proceedings or conducting a hearing.

(Opp., PageID 145, 152–53.) Because Defendants seized the van and did not initiate forfeiture

proceedings, Defendants violated clearly established law. (Id.) It is Defendants’ position that there

is neither a clearly established right to post-seizure hearing, nor to the immediate return of lawfully

seized property during the pendency of a criminal investigation. (Mot., PageID 101.)

Plaintiffs point to the Sixth Circuit’s opinion in Ingram v. Wayne County and argue that

the Sixth Circuit clearly established the right to a timely post-seizure hearing. 81 F.4th 603, 620

(6th Cir. 2023) (holding that the county violated the plaintiffs’ due process rights by seizing and

holding their vehicles for months without either a hearing to contest the seizure or initiating civil

forfeiture proceedings). (Opp., PageID 145, 150.)

But recently the United States Supreme Court issued its opinion overruling Ingram in part.

Culley v. Marshall, 601 U.S. 377 (2024) (citing United States v. $8,850, 461 U.S. 55 (1983), and

United States v. Von Neumann, 474 U.S. 242 (1986)). There, the Supreme Court held that the

Constitution only requires a timely forfeiture hearing but not a separate preliminary hearing to

determine whether the police may retain the car pending the forfeiture hearing. Id. at 384.

Reliance on either case is improper. Plaintiffs’ van was seized on July 30, 2022 and held

until October 11, 2022. (Compl., ¶¶ 19, 81.) Both cases post-date the seizure and retention of

Plaintiffs’ van. See, e.g., Lawler v. Hardeman Cnty., 93 F.4th 919, 927 (6th Cir. 2024) (finding

cases that post-date the conduct “do not clearly establish anything ‘at the time’ the offic[ials]

acted”). Meaning that neither case establishes whether the law was clearly established at the time

of the alleged constitutional violation.

At the time Defendants seized and held Plaintiffs’ van, it was clear that under the

Fourteenth Amendment’s Due Process Clause, an individual deprived of their property has the

right to be heard “at a meaningful time and in a meaningful manner.” Morrison v. Warren, 375

F.3d 468, 475 (6th Cir. 2004) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545

(1985)). And “a meaningful time and in a meaningful manner” as it relates to seized property

entitles an individual to a timely forfeiture proceeding, not more. $8,850, 461 U.S. at 562–63

(holding a post-seizure delay “may be become so prolonged that the dispossessed property owner

has been deprived of a meaningful hearing at a meaningful time”); Von Neumann, 474 U.S. at 247

(applying the four factors outlined in Barker v. Wingo, 407 U.S. 514, 530 (1972) and concluding

that a timely “forfeiture proceeding, without more, provides the post-seizure hearing required by

due process” to protect the plaintiff’s property interest); State v. Baumholtz, 553 N.E.2d 635, 636

(Ohio 1990) (applying Barker and holding five-and-a-half-month delay in initiating forfeiture

proceedings without a credible justification rises to the level of a due process violation).

The case law above establishes that when an individual’s property is seized, the individual

is entitled to a forfeiture proceeding within a reasonable time, which will be violated if the delay

exceeds more than a few months. See Baumholtz, 553 N.E. at 636 (five and a half months). To

assess whether the delay rose to the level of a constitutional violation, courts apply the four factors

set forth in Barker v. Wingo: (1) the length of the delay, (2) the reason for the delay, (3) the

defendant’s assertion of his right; and (4) any prejudice suffered. Id.; see also Von Neumann, 474

U.S. at 247. The case law does not, however, establish that individuals are entitled to a preliminary

hearing after the seizure, but before forfeiture proceedings. Id. This conclusion, based on the law

at the time of the alleged conduct, is consistent with the Supreme Court’s later holding in Culley.

601 U.S. at 384.

Thus, at the time of the alleged constitutional violation, it was not clear that holding

Plaintiffs’ van without a separate post-seizure, pre-forfeiture hearing violated Plaintiffs’ due

process rights. The case law made clear that failing to initiate forfeiture proceedings five-and-a-

half months after property is seized may rise to the level of a constitutional violation, after

considering all factors in Barker v. Wingo. But Plaintiffs cite no case that clearly establishes that

holding property for 70 days, or roughly two-and-a-half months, without initiating forfeiture

proceedings violates the Constitution.

Further, as the Court in Baumholtz explained, the pendency of criminal proceedings

impacts the reasonableness of the delay in initiating forfeiture proceedings. Baumholtz, 553 N.E.2d

at 639 (explaining that the pendency of criminal proceeding alone does not toll the obligation to

bring forfeiture proceedings but is a factor to consider). Criminal proceedings against Kahmayee

Whitfield remained pending for the entire time Defendants held the van. (Mot., PageID 108–09.)

No governing caselaw put forth by Plaintiffs establishes that holding a vehicle for 70 days during

the pendency of a criminal proceeding violates the Due Process Clause. Thus, there would be no

way for Prosecutor Welch to know that doing so was unlawful. Because the alleged unlawfulness

of Prosecutor Welch’s conduct was not clearly established, he is entitled to qualified immunity.

Accordingly, Defendants’ Motion is GRANTED IN PART and Plaintiffs’ claims against

Prosecutor Welch in his individual capacity are dismissed.

D. Defendant Muskingum County’s Municipal Liability

The Court now turns to the remaining § 1983 claim against Muskingum County. Plaintiffs

bring a Monell liability claim against Defendant Muskingum County for alleged violations of the

Due Process Clause of the Fourteenth Amendment. Plaintiffs argue that Prosecutor Welch, who

had final policymaking authority, created or ratified the allegedly unconstitutional policy in

Muskingum County permitting law enforcement to seize and retain vehicles indefinitely without

a hearing or a legitimate justification. (Opp., PageID 156–57.)

The qualified immunity that shielded Prosecutor Welch in his individual capacity from

§ 1983 liability does not apply to government entities like Muskingum County. See Shadrick v.

Hopkins Cnty., 805 F.3d 724, 749 (6th Cir. 2015) (clarifying that qualified immunity protects only

individual public officials and should not be confused with governmental immunity). A local

government unit and its officials may be liable under § 1983 when a constitutional deprivation

arises from a government custom or policy. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691

(1978) (explaining that a municipality is only responsible for its own actions and wrongdoings, it

is not vicariously liable under § 1983 for the actions of its employees). To succeed on a Monell

claim, a plaintiff must prove that his “constitutional rights were violated and that a policy or custom

of the municipality was the moving force behind the deprivation of the plaintiff’s rights.” Miller

v. Sanilac Cnty., 606 F.3d 240, 254–55 (6th Cir. 2010).

The plaintiff must “identify the policy, connect the policy to the city itself and show that

the particular injury was incurred because of the execution of that policy.” Searcy v. City of

Dayton, 38 F.3d 282, 287 (6th Cir. 1994) (quotation omitted). Under Monell and its progeny, there

are four ways to establish a constitutional deprivation through policy or custom: “(1) the

municipality’s legislative enactments or official policies; (2) actions taken by officials with final

decision-making authority; (3) a policy of inadequate training or supervision; or (4) a custom of

tolerance of acquiescence of federal violations.” Hood v. City of Columbus, 827 F. App’x 464, 472

(6th Cir. 2020) (citation omitted).

Plaintiffs do not allege that Muskingum County maintained an official unconstitutional

policy in a written or formal manner, instead they proceed on the second theory. Under this theory,

Plaintiffs argue that Prosecutor Welch, who had final policymaking authority, ratified the allegedly

unconstitutional policy in Muskingum County permitting law enforcement to seize and retain

vehicles indefinitely without a hearing or a legitimate justification. (See Compl., ¶ 89 (“It is the

policy of Muskingum County that the release of seized vehicles is solely at the discretion of the

County Sheriff, Sheriff’s Department Employees, and/or the County Prosecutor.”).)

Defendants make two counterarguments. First, that Plaintiffs are only able to identify one

allegedly violative act—not a custom or policy—to give rise to municipal liability. (Reply, PageID

188–89.) And second, that Prosecutor Welch did not have final policymaking authority over the

retention of lawfully seized property. Id. The Court reviews the counterarguments in reverse order.

First, “in Ohio, a county prosecutor has final decision-making authority with regard to the

operation of their offices and discharge of their duties.” Burchwell v. Warren Cnty., Ohio, No.

1:13-cv-297, 2014 U.S. Dist. LEXIS 41116, at *5 (S.D. Ohio Mar. 27, 2014) (Barrett, J.), aff’d,

582 F. App’x 656 (6th Cir. 2014) (citing Stone v. Holzberger, 807 F. Supp. 1325, 1335 (S.D. Ohio

1992) aff’d, 23 F.3d 408 (6th Cir. 1994) (citing Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)).

Therefore, Plaintiffs have plausibly alleged that Prosecutor Welch is a final decision-maker for the

purposes of Muskingum County municipal liability.

But the only evidence Plaintiffs offer of the policy or custom that allegedly violates the

constitution is the decision to retain Plaintiffs’ van after it was lawfully seized by law enforcement

subsequent to Kahmayee’s arrest. Assuming that this single action was unconstitutional, “[p]roof

of a single incident of unconstitutional activity is not sufficient to impose liability under Monell,

unless proof of the incident includes proof that it was caused by an existing, unconstitutional

municipal policy.” Phillips v. City of Cincinnati, No. 1:18-cv-541, 2019 U.S. Dist. LEXIS 89421,

at *29 (S.D. Ohio May 29, 2019) (Black, J.) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808,

824 (1985)). Accordingly, the Court begins with an analysis of whether Plaintiffs sufficiently pled

a constitutional violation to survive the Motion for Judgment on the Pleadings, and then turns to

whether Plaintiffs put forth satisfactory evidence that the single incident suggests an

unconstitutional municipal policy.

i. Plaintiffs plausibly allege a constitutional violation.

Plaintiffs allege that Defendants violated their due process rights by seizing and retaining

their van for over 70 days without adequate process to contest the seizure. (Opp., PageID 145–46.)

Defendants counter that Plaintiffs were neither entitled to the immediate return of their van that

was lawfully seized during the pendency of a criminal proceedings, nor additional post-seizure

process. (Reply, PageID 179.) Thus, according to Defendants, no constitutional violation occurred

and Plaintiffs’ remaining claims must fail as a matter of law. (Id.)

As explained above when analyzing whether the law was clearly established for purposes

of qualified immunity, when an individual’s property is seized, the individual is entitled to a

forfeiture proceeding within a reasonable time, which will be violated if the delay exceeds more

than a few months. See Baumholtz, 553 N.E. at 635 (five and a half months). But due process only

requires a timely post-seizure forfeiture hearing, not a separate preliminary hearing to determine

whether the police can retain the property pending the forfeiture hearing. Culley, 601 U.S. at 384

(citing $8,850, 461 U.S. 55, and Von Neumann, 474 U.S. 242); see also Cremeans v. Taczak, No.

22-3730, 2023 U.S. App. LEXIS 21425 (6th Cir. Aug. 14, 2023) (concluding that the police

department violated due process by holding money seized for 19 months without a forfeiture

hearing and without a credible explanation for the delay). As the Court explained above, the law

did not clearly establish whether 70 days without a hearing and without initiating forfeiture

proceedings rose to the level of a constitutional violation. (See supra, Section III.C.ii.)

Determining whether the seizure and retention violated Plaintiffs’ due process rights will require

the Court to apply the facts here to the four factors in Barker v. Wingo. See, e.g., Culley, 601 U.S.

at 384.

a. Length of Deprivation

Starting with the first factor, the Court analyzes whether the delay in initiating forfeiture

proceedings rises to the level of a due process violation. Plaintiffs’ van was held for over 70 days

without a hearing or opportunity to contest the seizure. (Compl., ¶¶ 19, 81.) While the Court

acknowledges that this is not an insignificant amount of time to be without one of the two vans

BNTS uses to make deliveries, the deprivation was significantly less than the five-and-a-half-

month delay suffered by the plaintiffs in Baumholtz or the 19-month delay in Cremeans. Plaintiffs

ask the Court to extend the Sixth Circuit’s recent holding in Cremeans and find that even a two-

month delay in initiating forfeiture proceedings is unlawful. But Plaintiffs offer no support for this

extension of the law. Accordingly, the length of the deprivation does not support the conclusion

that Plaintiffs suffered a violation of their procedural due process rights.

b. Muskingum County’s Reason for the Deprivation

Muskingum County explains that it seized and retained Plaintiffs’ van because the van was

potentially needed as evidence in Kahmayee’s trial for improperly handling a firearm in a motor

vehicle. (Mot., PageID 108–09.) The County offers only one piece of evidence to support this

justification, an email from Prosecutor Welch to BenYeHudah:

Criminal Rule 16 in Ohio provides for the manner in which a defendant may receive

discovery in a criminal matter. Please refer to the rule for [determining] the type of

information the defendant is entitled, whom may request that information and the

manner in which it will be provided.

(ECF No. 3-1, PageID 78–79.) Presumably, Prosecutor Welch’s email meant the van was evidence

and to receive such evidence, BenYeHudah needed to adhere to the process provided in Rule 16.

Plaintiffs argue this justification was concocted after Plaintiffs filed suit to avoid liability.

And if the van were needed as evidence, then logically, Defendants would have held the van until

the criminal proceedings against Kahmayee concluded. But that was not the case here. Defendants

released the van to BenYeHudah on October 11, 2022, but did not accept Kahmayee’s plea of no

contest until January 2023.

Ohio law permits law enforcement to retain property lawfully seized until “the time it is no

longer needed as evidence or for another lawful purpose.” Ohio Rev. Code § 2981.11(A)(1). The

statute both allows law enforcement to keep property as evidence, but also imposes a duty on law

enforcement to return seized property without unnecessary delay. See State v. Grace, 2023-Ohio-

165, ¶ 18, 205 N.E.3d 1255, 1259 (Ohio Ct. App. Jan. 20, 2023). The statute mirrors the general

presumption in the law that property seized must be returned to its owner once criminal

proceedings conclude. See Savoy v. United States, 604 F.3d 929, 932 (6th Cir. 2010) (citing Rule

41(g) of the Federal Rules of Criminal Procedure); United States v. Wilson, No. 1:07CR137, 2011

U.S. Dist. LEXIS 61858, at *4 (N.D. Ohio May 31, 2011) (“W]hen the Government seizes property

for use in an investigation or trial the property must be returned once criminal proceedings have

concluded, unless it is contraband or subject to forfeiture.”).

But the pendency of a criminal proceeding alone does not justify seizing property

indefinitely without a hearing. See Baumholtz, 553 N.E.2d at 639. The Due Process Clause requires

a timely forfeiture hearing, and the pendency of a criminal proceeding is only an element

considered when determining whether the delay in initiating forfeiture proceedings was

unreasonable. Id.

While it is certainly a plausible justification that Defendants kept the van as evidence, the

Court is not prepared to conclude as a matter of law based on a single email that this was the only

justification or that this explanation justifies the duration of the seizure. Plaintiffs’

counterargument raises questions about Defendants’ purported justification. If the van were

needed as evidence, Defendants would have kept it at least until Kahmayee entered his plea of no

contest. Ascertaining the truth of Defendants’ explanation involves questions of fact and

credibility determinations better reserved for the trier of fact. Thus, this factor favors Plaintiffs.

c. Plaintiffs’ Diligence in Seeking the Return of the Van

Defendants argue that Plaintiffs did not show diligence in seeking the return of the van

because they did not utilize any remedies available under state law. (Mot., PageID 116–18.) But

Plaintiffs submit many emails where BenYeHudah diligently sought the return of the van and its

cargo. (See ECF No. 3-1, PageID 75–80.)

The Sixth Circuit has held that the delay between the seizure and the forfeiture hearing

becomes more unreasonable when a plaintiff diligently asserts their right to the return of their

property. Cremeans, 2023 U.S. App. LEXIS 21425, at *11. In Cremeans, the plaintiffs made

multiple written requests to the Chillicothe Law Director seeking the return of their property and

eventually filed a state-court action for replevin. Id. Even though the plaintiffs did not initiate a

hearing under Ohio Revised Code § 2981.03(A)(4),1 the district court found—and the Sixth Circuit

affirmed—that the plaintiffs had “adequately asserted their rights to the property.” Id. The

plaintiffs’ diligence made the delay before the forfeiture hearing unreasonable. Id.

1 Ohio Revised Code § 2981.03 is Ohio’s forfeiture statute. Ohio Revised Code § 2981.03(A)(4)

gives an individual the right to file a motion for their return of their property.

Drawing all reasonable inferences in Plaintiffs’ favor, the Court finds BenYeHudah

plausibly alleged diligence in seeking the return of the van and its cargo. Within days of the van’s

impoundment, BenYeHudah contacted the Muskingum County Jail and the Prosecutor’s Office.

(Compl., ¶¶ 32, 34, 36.) He arranged a meeting with Prosecutor Welch and Detective Perry, (ECF

No. 3-1, PageID 74; see also Compl., ¶¶ 43–45), and even after the van’s cargo was released, he

continued to communicate with Defendants to obtain the release of his van. (Compl., ¶¶ 54–55,

61, 63, 68–69.) He sent emails on August 5, August 9, September 15, September 22, and

September 27, 2022. (ECF No. 3-1, PageID 75–80.) Many of these emails went unanswered. (Id.)

Although BenYeHudah did not pursue other remedies under state law, like an action for replevin

as the plaintiffs did in Cremeans, failing to do so does not negate the fact that he diligently sought

the return of his property. Accordingly, this factor favors Plaintiffs.

d. Prejudice to Plaintiffs

The last factor evaluates any prejudice suffered by Plaintiffs, but the kind of prejudices it

addresses does not apply here because here no forfeiture proceedings were initiated. This factor

analyzes whether the delay hampered a claimant from presenting their defense in the forfeiture

proceeding or underlying criminal proceeding. Baumholtz, 553 N.E.2d at 639 (explaining that

prejudice could be suffered if there was a loss of witnesses or other important evidence because of

the delay); Cremeans v. Taczak, No. 2:19-cv-2703, 2022 U.S. Dist. LEXIS 147827, at *41 (S.D.

Ohio Aug. 17, 2022) (Marbley, J.), aff’d, 2023 U.S. App. LEXIS 21425 (6th Cir. Aug. 14, 2023)

(describing the inquiry as whether the delay prejudiced the ability to defend against a forfeiture).

Here, no forfeiture proceedings were initiated so the delay could not interfere with

Plaintiffs’ ability to defend against a forfeiture. The only prejudice Plaintiffs point to is the

hardship experienced from losing the ability to make deliveries for the approximately 70 days

Defendants seized and retained the van. This prejudice is not the kind of prejudice this factor was

intended to account for and accordingly, this factor is neutral.

The second and third factors, however, favor Plaintiffs. On balance, Plaintiffs alleged a

plausible violation of their due process rights guaranteed by the Fourteenth Amendment Due

Process Clause. The question now becomes whether a single purported incident of unconstitutional

activity allows Plaintiffs’ claims to survive.

ii. Although a close call, Plaintiffs plausibly allege a municipal policy for

purposes of Monell liability.

Generally, a single incident of unconstitutional activity is not enough to impose Monell

liability on a municipality. See Phillips, 2019 U.S. Dist. LEXIS 89421, at *29. That said, a “single

decision can constitute a policy when ratified by an official with final decision-making authority.”

Wallace v. Coffee Cnty., 852 F. App’x 871, 877 (6th Cir. 2021) (citation omitted).

Here, Plaintiffs allege that Prosecutor Welch’s decision to retain the van for over 70 days

without a hearing was made with final decision-making authority and thus constitutes a policy of

the municipality. (Opp., PageID 157–58.) The discretion afforded to Prosecutor Welch in

determining when to seize and retain vehicles, coupled with this allegedly unconstitutional

incident, demonstrates that the municipal policy did not include a timely forfeiture hearing. Id.

Plaintiffs cite Pembaur v. City of Cincinnati which held that a municipality can be held

liable under § 1983 for a single decision by the municipality’s policymakers. 475 U.S. 469, 481

(1986). There, the Supreme Court stated that “[i]f the decision to adopt [a] particular course of

action is properly made by that government’s authorized decisionmakers, it surely represents an

act of official government ‘policy’ as that term is commonly understood. More importantly, where

action is directed by those who establish governmental policy, the municipality is equally

responsible whether that action is to be taken only once or to be taken repeatedly.” Id.

Prosecutor Welch at minimum approved of the decision to continue holding Plaintiffs’ van.

In response to an email request from BenYeHudah seeking the return of the van or an explanation

for its continued retention, Prosecutor Welch pointed BenYeHudah to Rule 16 of the Ohio Rules

of Criminal Procedure. (ECF No. 3-1, PageID 47–48.) As Muskingum County’s elected

prosecutor, he was the County’s authorized decisionmaker on questions of evidence in a criminal

proceeding. Thus, his decision to continue holding the van without a hearing could represent an

act of official government policy.

Without more evidence, such as other incidents where Prosecutor Welch retained seized

property without forfeiture proceedings, the Court finds this to be a close call. But given the early

stage in the litigation, Plaintiffs have stated a plausible Monell liability claim. Accordingly,

Defendants’ Motion for Judgment on the Pleadings is DENIED IN PART. Plaintiffs may proceed

on their § 1983 claims against Muskingum County, Ohio.

E. Plaintiffs’ State Law Claims

Plaintiffs bring claims against all Defendants for violations of Ohio Revised Code

§ 2921.45, which makes it a misdemeanor for a public servant to knowingly, deprive a person of

a constitutional or statutory right. (Compl., ¶¶ 96–97.) Defendants argue that they are shielded

from liability on principles of political subdivision immunity under Ohio’s Political Subdivision

Tort Liability Act (“PSTLA,” Ohio Rev. Code § 2744.02, et seq.) (Mot., PageID 126–127.) And

that Prosecutor Welch is immune under the PSTLA from state law liability as an employee of a

political subdivision. (Id. PageID 126.) The Court takes Defendants’ arguments in reverse order.

i. Prosecutor Welch’s state law immunity

Prosecutor Welch’s immunity under the PSTLA requires a two-step analysis. King v. City

of Columbus, No. 2:18-CV-1060, 2019 U.S. Dist. LEXIS 59274, at *8–9 (S.D. Ohio Apr. 5, 2019).

First, the Court must determine whether immunity presumptively applies to Prosecutor Welch. Id.

Under Ohio law, presumptive immunity applies to employees in civil actions brought to “recover

damages for injury, death, or loss to person or property allegedly caused by an act or omission in

connection with a governmental or proprietary function.” Ohio Rev. Code § 2744.03(A).

Here, presumptive immunity applies to Prosecutor Welch who was an employee of the

Muskingum County Prosecutor’s Office and was acting within the course and scope of his

employment. All of Plaintiffs’ allegations against Prosecutor Welch involve conduct related to his

prosecutorial functions,2 which qualifies as a governmental function under § 2744. See Ohio Rev.

Code § 2744.01(c)(2)(f) (defining governmental function as including prosecutorial functions).

Having found that presumptive immunity applies, the Court now evaluates whether any of

the statutory exceptions rebut that presumption. See King, 2019 U.S. Dist. LEXIS 59274, at *9.

Defendants maintain that no exceptions apply, but Plaintiffs argue that the statutory exception

under Ohio Rev. Code § 2744.03(A)(6)(b) applies. (Opp., PageID 163–64.) Prosecutor Welch can

still be held liable in tort if his “acts or omissions were with malicious purpose, in bad faith, or in

a wanton or reckless manner.” King, 2019 U.S. Dist. LEXIS 59274, at *9 (citations omitted).

Plaintiffs fail to sufficiently allege any wrongdoing with the requisite intent for this

exception to apply. Plaintiffs’ Complaint does not mention that Prosecutor Welch acted with

malice, bad faith, or in a reckless manner. (See Compl.) And in response to Defendants’ Motion,

Plaintiffs only argue that it is too early in the litigation to resolve whether Prosecutor Welch acted

with the requisite intent but put forth no factual allegations to support their claims. (Opp., PageID

162–63.) Without factual allegations to suggest that Prosecutor Welch actions were malicious,

2 The Court views “prosecutorial functions” as enumerated under Ohio Rev. Code

§ 2744.01(c)(2)(f) more broadly than those of an advocate, or those activities “intimately

associated with the judicial phase of the criminal process” under absolute immunity. See Imbler,

424 U.S. at 430.

wanton, or reckless, the exception cannot apply. Prosecutor Welch is accordingly entitled to

immunity, and the Court DISMISSES Plaintiffs’ individual-capacity state-law claims against him.

ii. Defendants’ state law immunity

Defendants next urge the Court to dismiss the remaining state-law claims against

Muskingum County and Detective Perry in his official capacity because Ohio’s PSTLA applies.

(Mot., PageID 126–27.)

To determine whether a political subdivision is immune, courts utilize a three-step analysis.

See King, 2019 U.S. Dist. LEXIS 59274, at *13. As with Prosecutor Welch, the analysis begins

with whether presumptive tort immunity applies. Ohio Rev. Code § 2744.02(A)(1). And as with

Prosecutor Welch, the Court finds that it does. Muskingum County is a political subdivision of

Ohio and Plaintiffs’ complaint alleges conduct by employees of the county in furtherance of a

governmental function that caused loss to person or property. Id.; Ohio Rev. Code

§ 2744.02(A)(1). The power to impound and seize a motor vehicle constitutes a governmental

function under Ohio law. See, e.g., Pavlik v. City of Cleveland, 2009-Ohio-3073, ¶ 18 (Ohio Ct.

App.) (“This court has held that the police power to impound a motor vehicle constitutes a

governmental function.”); Maine v. Boardman Police Dep’t, 2006-Ohio-4954, ¶ 28 (Ohio Ct.

App.) (holding that confiscating a boat during a criminal investigation was a governmental

function of the police department).

Next, the Court determines whether an exception applies. Section 2744.02(B) lists five

statutory exceptions to presumptive immunity. See Ohio Rev. Code § 2744.02(B)(1)–(5). Plaintiffs

argue that the fifth exception applies. (Opp., PageID 166.) That exception allows a political

subdivision to be liable for claims involving civil liability expressly imposed on the subdivision

by another provision of the Ohio Revised Code. King, 2019 U.S. Dist. LEXIS 59274, at *14.

Plaintiffs allege that their claims involve civil liability imposed on the County by Ohio Rev. Code

§ 2307.60. (Opp., PageID 166.) Ohio Rev. Code § 2307.60 authorizes a civil action for damages

caused by criminal acts. Buddenberg v. Weisdack, 161 N.E.3d 603, 605 (Ohio 2020) (citation

omitted). Plaintiffs allege that the interference with their constitutional rights, a misdemeanor

under Ohio Rev. Code § 2921.45, is a criminal act. Thus, Plaintiffs’ argument is that these two

statutory provisions (Ohio Rev. Code §§ 2921.45 and 2307.60) overcome the presumptive

immunity. (Opp., PageID 168.)

Defendants do not address this argument in their reply in support of their Motion. (Reply,

ECF No. 12.) But even if this case fell within the exception under Ohio Rev. Code § 2744.02(B)(5),

the Court would turn to the third and final step of the analysis. A political subdivision can still

avoid liability under the third step if any of the immunities and defenses under Ohio Rev. Code

§ 2744.03 apply. See Wakefield v. Williamstown Volunteer Fire Co., No. 2:23-cv-01353, 2023

U.S. Dist. LEXIS 203652, at *12 (S.D. Ohio Nov. 14, 2023) (Marbley, C.J.) (describing three-step

inquiry for statutory immunity); Theobald v. Bd. of Cnty. Comm’rs, 332 F.3d 414, 416 (6th Cir.

2003) (explaining several of the immunities and defenses under Ohio Rev. Code § 2744.03). A

political subdivision is immune from liability if the alleged injury resulted from an employee’s

“performance of a judicial, quasi-judicial, prosecutorial, legislative, or quasi-legislative function.”

Ohio Rev. Code § 2744.03(A)(1) (emphasis added).

Here, the statute provides for statutory immunity for political subdivisions engaged in a

prosecutorial function. Id. Because the van was seized in relation to the criminal prosecution of

Kahmayee Whitfield, the Court finds that Muskingum County and Detective Perry in his official

capacity are entitled to immunity. Accordingly, Plaintiffs’ state-law claims are DISMISSED.

F. Parties’ Motion and Partial Motion for Summary Judgment

Lastly, before the Court issued this Opinion and Order, the Parties also filed Motions for

Summary Judgment. (See Def. Mot. for Summary Judgment, ECF No. 21; Pl’s Partial Mot. for

Summary Judgment, ECF No. 22.) Because this Opinion and Order resolves several of Plaintiffs’

claims, the Parties are ORDERED to re-file their Motion and Partial Motion for Summary

Judgment. Defendants’ Motion for Summary Judgment (ECF No. 21) and Plaintiffs’ Partial

Motion (ECF No. 22) are thus DENIED without prejudice for re-filing in light of this Opinion

and Order.

IV. CONCLUSION

Defendants’ Motion for Judgment on the Pleadings (ECF No. 7) is GRANTED IN PART

and DENIED IN PART. Plaintiffs’ claims against Prosecutor Welch and Detective Perry in their

official capacities are duplicative of Plaintiffs’ claims against Defendant Muskingum County and

are DISMISSED. Because Prosecutor Welch is entitled to qualified immunity, Plaintiffs’ § 1983

claims against him in his individual capacity are DISMISSED. Plaintiffs’ Monell liability claim

against Muskingum County may proceed, but Plaintiffs’ state-law claims against all Defendants

are barred by statutory immunity and are DISMISSED.

Finally, Defendants’ Motion for Summary Judgment (ECF No. 21) and Plaintiffs’ Partial

Motion for Summary Judgment (ECF No. 22) are DENIED without prejudice for re-filing in

light of this Court’s Opinion and Order. The Parties are ORDERED to re-file their Motions for

Summary Judgment, if any, on or before November 4, 2024. Responses shall be filed by

November 25, 2024, and any replies shall be filed by December 9, 2024.

IT IS SO ORDERED.

9/18/2024 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE