The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JULIUS MAURICE VAUGHN, ) CASE NO. 1:23-cv-02338
)
Plaintiff, ) JUDGE DAVID A. RUIZ
)
V. )
)
JACK CLEVELAND CASINO, LLC, ) MEMORANDUM OPINION AND ORDER
) #
Defendant. )
Plaintiff Julius Maurice Vaughn, appearing pro se, has filed a two-page Amended
Complaint against Defendant JACK Cleveland Casino, LLC alleging violations of his “civil
rights and civil liberties” by “racially profil[ing] and accus[ing] [him] of taking part in a
shoplifting incident” and “threaten[ing] to have [him] arrested for trespassing.” (R. 8). Defendant
has moved to dismiss the Amended Complaint under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. (R. 9, PageID# 36). Plaintiff has not responded. For the reasons that follow, the Court
GRANTS Defendant’s motion and dismisses this action in its entirety.
I. Standard of Review
A Rule 12(b)(6) motion to dismiss challenges whether a complaint sets forth a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556
U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). To proceed past the pleading stage, “a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” /d. at 678 (quotation marks omitted). A claim is facially plausible “when
th e plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. This “plausibility standard is not akin to a
‘probability requirement,’” but it demands “more than a sheer possibility that a defendant has
acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between possibility and plausibility of entitlement
to relief.” Id. (quotation marks omitted).
A court resolving a Rule 12(b)(6) motion “must consider the complaint in its entirety.”
Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322 (2007). The court accepts as true all
factual allegations contained in the complaint and construes them in the light most favorable to
the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007) (per curiam); accord Streater v.
Cox, 336 F. App’x 470, 474 (6th Cir. 2009). But a court need not accept as true conclusions of
law, labels, formulaic recitation of the elements of a claim, and “naked assertions devoid of
further factual enhancement”. Iqbal, 556 U.S. at 678–79. “When there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief” under governing law.1 Id. at 679.
II. Background
Although Plaintiff’s Amended Complaint does not identify specific causes of action, it
appears he is attempting to assert a discrimination claim under Title II of the Civil Rights Act
1 Because Plaintiff is a layperson representing himself, his Amended Complaint is liberally
construed and “held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Williams
v. Curtin, 631 F.3d 380, 383 (6th Cir. 2011). Nevertheless, Plaintiff must satisfy basic procedural
rules and pleading standards, see Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008); Erwin v.
Edwards, 22 F. App’x 579, 580 (6th Cir. 2001); McGhee v. Light, 384 F. Supp. 3d 894, 896
(S.D. Ohio 2019) (citing Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)), and the Court need
not “conjure allegations” on his behalf, Erwin, 22 F. App’x at 580.
an d claims for intentional and negligent infliction of emotional distress. (R. 8, PageID# 34–35).
He asserts that he is “a Black senior citizen” and “one hundred percent disabled.” (R. 8, PageID#
34–35). On October 13, 2023, he was shopping at Defendant’s gift shop, and “a shoplifting
incident” occurred. (Id. at PageID# 34). The “shoplifting suspect” was a Black woman whom
Plaintiff “did not know” and had never met. Id. He alleges gift shop staff “racially profiled” him
and “accuse[d] [him] of taking part in” the “shoplifting incident.” Id.
Law enforcement arrived, and Plaintiff told the officers that the “shoplifting suspect was
long gone in the opposite direction that [he] had traveled.” Id. He asked the officers whether
“they were going to place [him] under arrest” and “read his rights.” Id. An officer told Plaintiff
that he was not under arrest but that he was “being detained.” Id. The officer then told him not to
move and said that he was “not allowed to leave.” Id. Then, the officer threatened to arrest him if
he “did not move at the pace that the” officer “thought that [he] should have been moving to
leave [Defendant’s] property.” Id. The officer did so even though “[t]hey were told that
[Plaintiff] was disabled [and] that [he] had to be allowed to move at a pace that was conducive to
[his] disabilities.” Id. Defendant’s manager then “threatened to have [him] arrested for
trespassing.” Id. He alleges mental anguish, emotional stress, and mental pain. Id.
III. Analysis
A. Failure to Respond
A plaintiff’s failure to respond to a motion to dismiss “amounts to a forfeiture of” the
claims to which the motion is addressed. See Notredan, L.L.C. v. Old Republic Exch. Facilitator
Co., 531 F. App’x 567, 569 (6th Cir. 2013). “Likewise, opposition to a motion to dismiss is
waived, and dismissal appropriate, where the plaintiff fails to respond thereto.” March v.
Securitas Sec. Servs. USA, No. 1:23cv194, 2023 WL 5417778, at *3 (W.D. Mich. July 28, 2023)
(c iting Humphrey v. U.S. Att’y Gen.’s Off., 279 F. App’x 328, 331 (6th Cir. 2008)), report &
recommendation adopted, 2023 WL 5379747 (W.D. Mich. Aug. 22, 2023). Here, Plaintiff failed
to respond to Defendant’s motion to dismiss despite being provided ample time to do so, and the
Court could grant the motion and dismiss the Amended Complaint on this ground alone. See id.
The Court, however, will consider the substantive arguments from the motion to dismiss.
B. Title II Discrimination Claim
Title II of the Civil Rights Act “prohibits discrimination on the basis of ‘race, color,
religion, or national origin’ in places of public accommodation.” Rachel v. United Dairy
Farmers, No. 1:12cv575, 2012 WL 6771836, at *5 (S.D. Ohio Nov. 13, 2012) (citing 42 U.S.C.
§ 2000a(a)), report & recommendation adopted, 2013 WL 65223 (S.D. Ohio Jan. 4, 2014). To
state a claim for Title II discrimination when “there is no allegation suggesting direct evidence of
discrimination,” a plaintiff must allege facts showing that he (1) “is a member of a protected
class” who (2) “attempted to exercise the right to full benefits and enjoyment of a place of public
accommodation,” (3) “was denied those benefits and enjoyment” by the defendant, and (4) “was
treated less favorably than similarly situated persons who are not members of the protected
class.” Bormuth v. Dahlem Conservancy, 837 F. Supp. 2d 667, 674 (E.D. Mich. 2011); see also
Paschal v. Drs. Assocs., No. 4:17cv1635, 2017 WL 4155768, at *3 (N.D. Ohio Sept. 19, 2017)
(citing Fall v. LA Fitness, 161 F. Supp. 3d 601, 605–06 (S.D. Ohio 2016); Bormuth, 837 F. Supp.
2d at 674).
Even when liberally construing Plaintiffs Amended Complaint, it fails to state a
discrimination claim under Title II. The Court agrees with Defendant that Plaintiff has not
alleged direct evidence of discrimination and fails to allege facts plausibly supporting a viable
claim. (See R. 9, PageID# 43–47). Plaintiff’s “conclusory allegation[] of ‘racial profiling’ … [is]
in sufficient to state a claim upon which relief may be granted.” Cf. Green v. Dorman, No.
2:19cv2968, 2019 WL 3220555, at *3 (S.D. Ohio July 17, 2019) (citing Iqbal, 556 U.S. at 678),
report & recommendation adopted, 2019 WL 3944441 (S.D. Ohio Aug. 21, 2019). Although he
alleges he is “a Black senior citizen” who was shopping and engaging “in no wrong[]doing”
when Defendant’s gift shop employees accused him of involvement in a “shoplifting incident”
and “threaten[ed] to have [him] arrested for trespassing,” (R. 8, PageID# 34), he presents no
direct evidence of discrimination, and the pleading is devoid of factual allegations that Defendant
treated him less favorably than other similarly situated persons who are not members of a
protected class. See id. Consequently, he fails to state a viable discrimination claim under Title
II. See Vyletel v. Univ. of Mich., No. 22-12485, 2022 WL 19518409, at *4 n.6 (E.D. Mich. Dec.
6, 2022) (citing Lewis v. Northland Chrysler Dodge Ram Jeep, No. 13-14058, 2014 WL
3375524, at *3, 7 (E.D. Mich. May 27, 2014)), report & recommendation adopted, 2023 WL
2537276 (E.D. Mich. Mar. 16, 2023); Bormuth, 837 F. Supp. 2d at 674–75.
Plaintiff also alleges that law enforcement officers detained him and threatened to arrest
him for leaving Defendant’s property too slowly. (See R. 8, PageID# 34). However, those law
enforcement officers are not parties to this suit and their actions are not attributable to Defendant.
Therefore, the Court will dismiss this claim.
C. Intentional Infliction of Emotional Distress Claim
Under Ohio law, to state a claim for intentional infliction of emotional distress, a plaintiff
must allege facts showing the following:
(1) defendant intended to cause emotional distress or knew or should have known
that its conduct would result in serious emotional distress to the plaintiff;
(2) defendant's conduct was outrageous and extreme and beyond all possible
bounds of decency and was such that it can be considered as utterly intolerable in a
civilized community;
(3) defendant's conduct was the proximate cause of [the] plaintiff's psychic injury;
and
(4) plaintiff's emotional distress was serious and of such a nature that no reasonable
person could be expected to endure it.
Kovac v. Superior Dairy, Inc., 930 F. Supp. 2d 857, 870 (N.D. Ohio 2013) (quoting Talley v.
Fam. Dollar Stores of Ohio, 542 F.3d 1099, 1110 (6th Cir. 2008)).
Plaintiff’s Amended Complaint fails to allege facts plausibly supporting the first, second,
and fourth elements. Although Plaintiff asserts that he is “a Black senior citizen,” he only alleges
he “has seen a lot when these type[s] of interactions with law enforcement go wrong” and that
his “injuries include nightmares, lack of trust in law enforcement, [m]ental anguish, emotional
stress, los[s] of dignity[,] and mental pain.” (R. 8, PageID# 35). Even when liberally construing
the pleading, Plaintiff “has not pleaded that [Defendant] intended to cause him emotional
distress” or “that [Defendant] knew or should have known that its conduct would result in
serious emotional distress.” Kovac, 930 F. Supp. 2d at 870; (see R. 8). The bare bones Amended
Complaint fails to plausibly allege Defendant's “conduct was outrageous and extreme,” “beyond
all possible bounds of decency…and…utterly intolerable in a civilized community.” Id.
Plaintiff also fails to allege facts showing the final element— “a showing of serious
emotional anguish.” Doe v. BMG Sports, LLC, 584 F. Supp. 3d 497, 508 (S.D. Ohio 2022). This
requirement “describes emotional injury which is both severe and debilitating.” 180 Indus., LLC
v. Brunner Firm Co. LPA, No. 20-4129, 2021 WL 4955268, at *2 (6th Cir. 2021) (quoting
Paugh v. Hanks, 451 N.E.2d 759, 765 (Ohio 1983)). Under Ohio law, “serious emotional distress
may be found where a reasonable person, normally constituted, would be unable to cope
adequately with the mental distress engendered by the circumstances of the case.” Id. (quoting
P augh, 451 N.E.2d at 765).2 Because Plaintiff does not allege facts showing the first, second,
and fourth elements, the Court need not consider further arguments as Plaintiff fails to state a
plausible claim for intentional infliction of emotional distress. Accordingly, the Court will
dismiss this claim.
D. Negligent Infliction of Emotional Distress Claim
To state a claim for negligent infliction of emotional distress, a plaintiff must allege facts
showing that (1) he “witnessed and/or experienced a real or impending danger to another, (2) the
defendant’s conduct negligently caused the dangerous incident, and (3) the defendant’s conduct
was the proximate cause of [the] plaintiff’s serious and reasonably foreseeable emotional
distress.” Stout v. United States, 721 F. App’x 462, 473 (6th Cir. 2018) (quoting David v. Matter,
2017-Ohio-7351, 96 N.E.3d 1012, 1017 (Ohio Ct. App. 2017)).
Defendant argues that Plaintiff fails to state a claim for negligent infliction of emotional
distress. (Id. at PageID# 49–50). They Court agrees. Plaintiff fails to allege any of the following:
he witnessed or experienced any real or impending danger to another person, he was subjected to
actual, physical peril, or he suffered physical injuries. The Amended Complaint is devoid of any
factual allegations plausibly alleging that Defendant created a dangerous incident that was the
proximate cause of serious emotional distress; nor does Plaintiff allege severe or debilitating
2 Examples of such distress “include traumatically induced neurosis, psychosis, chronic
depression, or phobia.” Id. (quoting Paugh, 451 N.E.2d at 765). Plaintiff’s allegations of
“nightmares, lack of trust in law enforcement, [m]ental anguish, emotional stress, los[s] of
dignity[,] and mental pain,” (R. 8, PageID# 35), simply “fall short of showing that he suffered
sufficiently serious emotional distress to state an [intentional infliction of emotional distress]
claim.” 180 Indus., LLC, 2021 WL 4955268 at *3 (citing Howkins v. Walsh Jesuit High Sch.,
2013-Ohio-917, No. 26438, 2013 WL 989376, at *8 (Ohio Ct. App. Mar. 13, 2013); Jones v.
White, No. 18109, 1997 WL 669737, at *9 (Ohio Ct. App. Oct. 15, 1997); Dickerson v. Int’l
United Auto Workers Union, 648 N.E.2d 40, 50 (Ohio Ct. App. 1994)).
em otional distress in lieu of physical injuries. Consequently, the Court need not consider further
arguments as Plaintiff fails to state a plausible claim for negligent infliction of emotional
distress, and Court will dismiss this claim.
IV. Conclusion
For the foregoing reasons, Defendant’s motion to dismiss, (R. 9), is GRANTED.
Plaintiff’s Amended Complaint is dismissed in its entirety.
IT IS SO ORDERED.
s/ David A. Ruiz
David A. Ruiz
United States District Judge
Date: February 13, 2025