Villavicencio v. City of Columbus

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOSE VILLAVICENCIO,

Plaintiff,

v. Civil Action 2:25-cv-134

Judge Michael H. Watson

Magistrate Judge Chelsey M. Vascura

CITY OF COLUMBUS, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Jose Villavicencio, an Ohio resident proceeding without the assistance of

counsel, sues the City of Columbus, the Columbus Code Enforcement Department, and City

Prosecutor Christopher Clark under 42 U.S.C. § 1983 and Title VI of the Civil Rights Act of

1964 for violations of his Fourteenth Amendment rights and discrimination on the basis of race

and sexual orientation, as well as under Ohio Revised Code § 3767.41 for failure to provide

required notice of receivership proceedings. This matter is before the Court for the initial screen

of Plaintiff’s Amended Complaint (ECF No. 8) as required by 28 U.S.C. § 1915(e)(2) to identify

cognizable claims and to recommend dismissal of Plaintiff’s Complaint, or any portion of it,

which is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).

Having performed the initial screen, for the reasons below, the undersigned RECOMMENDS

that the Court DISMISS Plaintiff’s federal claims (Counts I, III–V) for failure to state a claim on

which relief can be granted under 28 U.S.C. § 1915(e). It is further RECOMMENDED that

Plaintiff’s remaining state-law claim under the Ohio Revised Code (Count II) be DISMISSED

WITHOUT PREJUDICE to re-filing in state court.

I. STANDARD OF REVIEW

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In

doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e) as part of the

statute:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal—

(i) is frivolous or malicious; [or]

(ii) fails to state a claim on which relief may be granted . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To state a claim upon which relief may be granted, a plaintiff must satisfy the basic

federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also Hill v.

Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “detailed factual allegations, a pleading

that offers labels and conclusions or a formulaic recitation of the elements of a cause of action”

is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, to state a claim upon which relief may be granted, “a complaint must contain sufficient

factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up). Facial

plausibility is established “when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The

plausibility of an inference depends on a host of considerations, including common sense and the

strength of competing explanations for the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504

(citations omitted). Further, the Court holds pro se complaints “to less stringent standards than

formal pleadings drafted by lawyers.” Garrett v. Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612,

614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “courts should not have to guess at the nature of the claim

asserted.” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II. ANALYSIS

Plaintiff’s claims arise from allegedly discriminatory property inspections by the City of

Columbus’s Code Enforcement Department and proceedings commenced by City Prosecutor

Christopher Clark that allegedly failed to afford Plaintiff due process. Plaintiff alleges that when

inspecting properties owned by LLCs controlled by Plaintiff, City inspectors imposed harsher

standards than when inspecting other properties and failed to involve tenants in the inspections.

Plaintiff further alleges that Christopher Clark initiated receivership proceedings on a property at

1660 Parsons Avenue without providing notice to tenants as required by Ohio Revised Code

§ 3767.41. Plaintiff’s Amended Complaint advances five counts: (I) Monell liability for failure to

train City inspectors; (II) failure to provide notice of receivership proceedings to tenants in

violation of Ohio Revised Code § 3767.41; (III) depriving Plaintiff of property without due

process in violation of the Fourteenth Amendment; (IV) discriminatory property inspections on

the basis of race and sexual orientation in violation of the Equal Protection Clause of the

Fourteenth Amendment and Title VI of the Civil Rights Act of 1964; and (V) prospective relief

to stop ongoing violations of federal law. Plaintiff seeks compensatory and punitive damages as

well as declaratory and injunctive relief.

A. Appropriate Defendant

Plaintiff names the City of Columbus, the Columbus Code Enforcement Department, and

City Prosecutor Christopher Clark as Defendants. However, only the City of Columbus is an

appropriate Defendant for Plaintiff’s federal claims.

Columbus’s Code Enforcement Department is not sui juris—that is, it lacks the capacity

to be sued. See, e.g., Saint Torrance v. Firstar, 529 F. Supp. 2d 836, 850 (S.D. Ohio 2007) (“[A]

department of the City of Cincinnati, a municipal corporation, is not sui juris and cannot be sued

absent statutory authority.”). “Pursuant to Ohio Revised Code § 715.01, ‘[e]ach municipal

corporation is a body politic and corporate, which . . . may sue and be sued . . . .’ O.R.C.

§ 715.01. However, there is no statutory authority affording a department, such as Cincinnati

Water Works, the capacity to be sued. Thus, it appears that the City of Cincinnati is the real party

in interest.” Id. Likewise, it appears in this case that the City of Columbus, already a named

Defendant, is the real party in interest and Plaintiff’s claims against the Code Enforcement

Department must be dismissed.

Plaintiff also sues City Prosecutor Christopher Clark, specifically in his individual

capacity. (Am. Compl. ¶ I(1), ECF No. 8.) But Clark is entitled to absolute immunity from a civil

suit for damages under § 1983. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). This immunity is

overcome only when the prosecutor’s challenged conduct was taken as an administrator or

investigator, rather than as an advocate. See Holloway v. Brush, 220 F.3d 767, 775 (6th Cir.

2000). Despite Plaintiff’s conclusory allegations to the contrary, the Amended Complaint

contains no plausible allegations on which this Court could rely to conclude that any exception to

prosecutorial immunity applies to exempt Clark from immunity. To the contrary, Clark’s

commencement of receivership proceedings is a quintessential act of advocacy on behalf of the

City. Nor may individuals be held liable for violations of Title VI. See Buchanan v. City of

Bolivar, Tenn., 99 F.3d 1352, 1356 (6th Cir. 1996). Accordingly, Plaintiff’s claims against City

Prosecutor Christopher Clark must be dismissed.

The undersigned now proceeds to consider the merits of Plaintiff’s federal claims1

against the sole appropriate Defendant, the City of Columbus.

B. Monell Failure-to-Train (Count I) and Procedural Due Process (Count III)

Plaintiff alleges that the City of Columbus “maintained customs and policies of

inadequate training and supervision even after being made aware of the issues with the

inspectors, deliberately indifferent to the constitutional rights of the plaintiff, and ultimately

causing deprivations of property and due process as a direct result of the faulty inspections.”

(Am. Compl., Count I, ECF No. 8.) But Plaintiff’s factual allegations do not support the

1 The undersigned also recommends below that all of Plaintiff’s claims under Ohio Revised Code

§ 3767.41 be dismissed without prejudice to re-filing in state court.

assertion that Plaintiff was deprived of property as a result of faulty inspections. At most,

Plaintiff alleges that improper inspections led to the initiation of emergency receivership

proceedings for a property located at 1660 Parsons Avenue, for which a hearing was scheduled

for June 16, 2025. (Id. at ¶ IV(A)(6), IV(D).)2 As Plaintiff’s Amended Complaint was filed on

May 30, 2025, it is apparent that Plaintiff had advance notice of the upcoming hearing, and no

receivership had yet been ordered. Thus, Plaintiff had not been deprived of property as a result of

the allegedly faulty inspections as of the filing of his Amended Complaint. And even if Plaintiff

is deprived of property in the future, such deprivation would not be without notice and an

opportunity to be heard, as required to demonstrate a violation of procedural due process. See

Garcia v. Fed. Nat. Mortg. Ass’n, 782 F.3d 736, 740–41 (6th Cir. 2015).3

Because Plaintiff has not been deprived of property without due process, the City cannot

be liable for procedural due process violations whether directly or under a failure-to-train theory.

Moreover, although Plaintiff’s Count III makes a passing reference to substantive due process,

Plaintiff alleges no facts supporting a substantive due process claim. See, e.g., Guertin v. State,

912 F.3d 907, 918 (6th Cir. 2019) (substantive due process protects “fundamental rights,”

including “the right not to be subjected to arbitrary and capricious government action that shocks

the conscience and violates the decencies of civilized conduct”) (cleaned up). Accordingly,

Plaintiff’s Counts I and III must be dismissed.

2 Plaintiff also refers to other past proceedings involving other properties, but his Amended

Complaint clarifies that his current claims relate only to receivership proceedings as to the

property at 1660 Parsons Avenue. (Am. Compl. ¶ IV(D).)

3 Plaintiff also repeatedly alleges that Defendants failed to provide adequate notice of the

receivership proceedings to tenants of his properties, and it is not clear from the Amended

Complaint whether tenants had advance notice of the June 16, 2025 receivership hearing.

However, Plaintiff lacks standing to assert claims based on lack of notice to anyone other than

himself. See Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016).

C. Equal Protection and Title VI Violations (Count IV)

Plaintiff asserts that City inspectors selectively enforced the building code against

properties owned by LLCs controlled by Plaintiff, which amounted to discrimination on the basis

of his race (Asian) and sexual orientation (gay). To state a claim for discrimination in violation

of the Equal Protection Clause of the Fourteenth Amendment, Plaintiff must allege that “a state

actor intentionally discriminated against the plaintiff because of membership in a protected

class.” Inner City Contracting, LLC v. Charter Twp. of Northville, Mich., 87 F.4th 743, 758 (6th

Cir. 2023). Similarly, Title VI of the Civil Rights Act of 1964 prohibits any “program or activity

receiving Federal financial assistance” from discriminating against any person “on the ground of

race, color, or national origin.” 42 U.S.C. § 2000d. Just like the Equal Protection Clause, Title VI

“proscribes only intentional discrimination.” M.J. by & through S.J. v. Akron City Sch. Dist. Bd.

of Educ., 1 F.4th 436, 453 (6th Cir. 2021) (emphasis in original).

Here, Plaintiff alleges no facts supporting intentional discrimination on the part of the

City. Plaintiff alleges that City property inspectors cited Plaintiff’s properties for code violations

that were not enforced against properties owned by others, but he does not allege that those other

property owners were not members of his protected classes. The only factual allegations

supporting discriminatory intent are that City police officers—not property inspectors—made

derogatory comments about Plaintiff’s national origin when Plaintiff sought police assistance

with trespassers. (See Am. Compl. ¶ IV(C)(3)) (“[T]he Columbus Police Department calls

Plaintiff ‘our favorite Mexican Landlord’ when Plaintiff calls for help when people trespass in

the properties.”). Plaintiff also states that he has heard the statement, “[s]urely, a ‘Mexican’

cannot be managing so many properties,” but does not identify the speaker of this statement. (Id.

at ¶ IV(C)(14).) Plaintiff thus offers no factual support for his claim that he was subject to

discrimination on the basis of his race or sexual orientation. And even if the Court were to

construe Count IV to allege discrimination on the basis of national origin (rather than race and

sexual orientation, the protected classes expressly identified by Plaintiff), a single stray comment

by a City police officer who had no responsibility for inspecting Plaintiff’s properties or

initiating receivership proceedings does not plausibly suggest that the inspections or proceedings

were undertaken with discriminatory intent. See Iqbal, 556 U.S. at 678. Accordingly, Plaintiff’s

Count IV must be dismissed.

D. Prospective Relief to Stop Ongoing Violations of Federal Law (Count V)

Plaintiff’s Count V does not appear to be a standalone claim; instead, Plaintiff merely

states in Count V that claims for prospective injunctive relief against the State are permitted by

the doctrine of Ex Parte Young, 209 U.S. 123 (1908). Count V is therefore not a claim and is

redundant with Plaintiff’s Prayer for Relief, which seeks several injunctions against the City.

Because none of Plaintiff’s claims are viable in this Court, his request for injunctive relief also

fails.

E. Violation of Ohio Revised Code § 3767.41 (Count II)

All that remains is Plaintiff’s claim for Clark’s failure to provide notice of the

receivership proceedings to tenants in violation of the Ohio Revised Code. The undersigned

recommends that the Court decline to exercise jurisdiction over this remaining state-law claim.

Under 28 U.S.C. § 1367(c)(3), the Court may decline to exercise supplemental jurisdiction when

the Court “has dismissed all claims over which it has original jurisdiction.” The United States

Court of Appeals for the Sixth Circuit has held that “[i]f the federal claims are dismissed before

trial, the state claims generally should be dismissed as well.” Brooks v. Rothe, 577 F.3d 701, 709

(6th Cir. 2009) (citations omitted).

Here, Plaintiff’s allegations regarding violation of § 3767.41 fail to provide a basis for a

claim over which this Court has original jurisdiction. “The basic statutory grants of federal court

subject-matter jurisdiction are contained in 28 U.S.C. § 1331, which provides for federal-

question jurisdiction, and § 1332, which provides for diversity of citizenship jurisdiction.”

Arbaugh v. Y&H Corp., 546 U.S. 500, 501 (2006) (cleaned up). Federal-question jurisdiction is

implicated when a plaintiff pleads a claim “arising under” the federal laws or the United States

Constitution. Id. (citation omitted). For a federal court to have diversity jurisdiction under

§ 1332(a), there must be complete diversity, meaning that each plaintiff must be a citizen of a

different state than each defendant, and the amount in controversy must exceed $75,000.

Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996).

Plaintiff’s claim for violation of § 3767.41 arises under a state statute—not a federal

statute, regulation, or Constitution. Nor has Plaintiff alleged that he and Defendants are citizens

of different states. Thus, Plaintiff has failed to plausibly allege facts on which the Court could

rely to conclude that this Court has original subject-matter jurisdiction over his § 3767.41 claim.

Because the undersigned recommends dismissal of all of Plaintiff’s federal claims, it is further

recommended that the Court decline to exercise supplemental jurisdiction over any remaining

state-law claims and that it dismiss any such claims without prejudice to re-filing in state court.

III. DISPOSITION

It is RECOMMENDED that the Court DISMISS Plaintiff’s federal claims (Counts I,

III–V) for failure to state a claim on which relief can be granted under 28 U.S.C. § 1915(e). It is

further RECOMMENDED that Plaintiff’s remaining state-law claim under the Ohio Revised

Code (Count II) be DISMISSED WITHOUT PREJUDICE to re-filing in state court.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A District Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a District Judge of this Court may accept,

reject, or modify, in whole or in part, the findings or recommendations made herein, may receive

further evidence or may recommit this matter to the Magistrate Judge with instructions. 28

U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE