Tavenner

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

PATRICK F. TAVENNER, et al., ) Case No. 1:25-cv-1266

)

Plaintiffs, ) Judge J. Philip Calabrese

)

v. ) Magistrate Judge

) Reuben J. Sheperd

LORAIN COUNTY, et al., )

)

Defendants. )

)

OPINION AND ORDER

Plaintiffs Patrick and Meredith Tavenner bring this lawsuit against Lorain

County, Ohio, the Lorain County Board of Commissioners, and two individuals from

the office of the Lorain County Engineer for an alleged taking in violation of the

Constitution, the Ohio Constitution, and Section 1983. Plaintiffs allege that

Defendants acted unconstitutionally and illegally by attempting to acquire an

interest in their real property through a ditch improvement project without paying

just compensation. Defendants move to dismiss for failure to state a claim. For the

following reasons, the Court GRANTS that motion.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs Patrick F. Tavenner and Meredith S. Tavenner own property in

Lorain County, Ohio. (ECF No. 1, ¶ 8, PageID #3.) Defendant Lorain County is a

political subdivision of the State of Ohio and has no recorded easement over Plaintiff’s

property. (Id., ¶¶ 9–10, PageID #3.) Lorain County now “desire[s] to acquire

interests” in Plaintiffs’ real property through the implementation of a ditch

improvement project, which “plans to alter and change the natural watershed.” (Id.,

¶ 11, PageID #3.) The project will cross Plaintiffs’ property and burden it with a

“perpetual drainage easement.” (Id.) Implementation of the project will cause injury

and damages to Plaintiffs’ property. (Id.)

The complaint alleges that Lorain County, through its legislative and

administration decisions, has established an official governmental policy of “seeking

to wrongfully take” Plaintiffs’ property without just compensation to benefit political

cronies. (Id., ¶ 12, PageID #3–4.) Through its policies, the complaint alleges that

Lorain County “intentionally” caused financial injury and harm to Plaintiffs for the

last eight years by attempting to implement four identical ditch petitions, with the

first three petitions having been abandoned. (Id., ¶ 13 PageID #4.)

According to the complaint, Defendants’ actions have caused Plaintiffs to suffer

concrete injury and damage, including the right to enjoy their land without

governmental encroachment, trespass, nuisance, injury, and the perpetual burdens

or drainage easements being placed on their property. (Id., ¶ 19, PageID #5.) As a

direct and proximate result of the illegal and unconstitutional actions by Defendants,

Plaintiffs claim they are entitled to damages in an amount in excess of $750,000 plus

liabilities. (Id., ¶ 21, PageID #6.)

Based on these facts, Plaintiffs sued Lorain County, the Lorain County Board

of Commissioners, Lorain County Engineer Ken Carney, and Lorain County Chief

Deputy Engineer Peter Zwick for violation of the Takings Clause of the Fifth

Amendment, the Ohio Constitution, State law, and Section 1983. (ECF No. 1.)

Although the complaint mentions the Ohio Constitution and State law (id., ¶¶ 12, 14

& 18, PageID #3–5), Plaintiffs assert only two claims: (1) a taking in violation of the

Fifth Amendment (Count One) (id., PageID #3); and (2) violation of Section 1983 (id.,

PageID #6). Therefore, notwithstanding the references to the Ohio Constitution and

State law, the Court reads the complaint as not bringing any State-law claims.

Defendants move to dismiss the complaint for failure to state a claim. (ECF No. 10.)

ANALYSIS

Under Rule 12(b)(6), a court may dismiss a complaint if it fails to state a claim

on which a court may grant relief. Fed. R. Civ. P. 12(b)(6). A motion under Rule

12(b)(6) tests “the plaintiff’s cause of action as stated in the complaint,” and is “not a

challenge to the plaintiff’s factual allegations.” Golden v. City of Columbus, 404 F.3d

950, 958–59 (6th Cir. 2005). A complaint must “contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is plausible where “the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). To survive a motion to

dismiss, a complaint must “raise a right to relief above the speculative level” into the

“realm of plausible liability.” Twombly, 550 U.S. at 555, 557 n.5.

On a motion to dismiss, the Court construes factual allegations in the light

most favorable to the plaintiff, accepts them as true, and draws all reasonable

inferences in the plaintiff’s favor. Wilburn v. United States, 616 F. App’x 848, 852

(6th Cir. 2015) (citing Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). But

a pleading must offer more than mere “labels and conclusions,” and “a formulaic

recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 555). Nor is a court required to accept “[c]onclusory

allegations or legal conclusions masquerading as factual allegations.” Eidson v.

Tennessee Dep’t of Child.’s Servs., 510 F.3d 631, 634 (6th Cir. 2007) (citing Twombly,

550 U.S. at 544).

Therefore, the Court must distinguish between “well-pled factual allegations,”

which must be treated as true, and “naked assertions,” which need not be. Iqbal, 556

U.S. at 678 (cleaned up); see also, e.g., Center for Bio-Ethical Reform, Inc. v.

Napolitano, 648 F.3d 365, 375 (6th Cir. 2011) (determining that because some of the

plaintiff’s factual allegations were not well-pled, their conclusory nature disentitled

them to the presumption of truth). A plaintiff need not include detailed factual

allegations, but must provide more than “an unadorned, the-Defendant-unlawfully-

harmed-me accusation.” Iqbal, 556 U.S. at 678. Rule 8 “does not unlock the doors of

discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678–79.

I. Judicial Notice

Plaintiffs ask that the Court take judicial notice of three previous Lorain

County Common Pleas Court cases and included all the documents filed in those

proceedings to their response to Defendants’ motion to dismiss. (ECF No. 12.) “A

court may judicially notice a fact that is not subject to reasonable dispute because

it . . . can be accurately and readily determined from sources whose accuracy cannot

be reasonably questioned.” Fed. R. Evid. 201(b)(2). Plaintiffs ask that the Court take

judicial notice of the documents from the previous State court proceedings. But

“courts do not take judicial notice of documents, they take judicial notice of facts.”

Abu-Joudeh v. Schneider, 954 F.3d 842, 848 (6th Cir. 2020). Plaintiffs fail to

articulate the specific facts that the Court should judicially notice. Instead, Plaintiffs

include the State court dockets and documents in their motion without any other

context. Accordingly, the Court will not take judicial notice of the State court

documents.

II. The Alleged Taking

Based on the Court’s review of the complaint and the parties’ briefs, Plaintiffs’

claims for the taking under the Constitution, the Ohio Constitution, and Section 1983

all proceed from the same facts. Specifically, Plaintiffs allege that Lorain County, in

pursuit of an official policy, “seek to deprive” Plaintiffs of their real property rights

and interests through implementation of a ditch improvement project. (ECF No. 1,

¶ 4, PageID #2.) Plaintiffs contend that, because they have not received just

compensation for the taking of their property, Defendants have violated the Takings

Clause of the Fifth Amendment, the Fourteenth Amendment, and Section 19, Article

1, of the Ohio Constitution. (Id., ¶¶ 11–21, PageID #4–6.) For Plaintiffs’ Section 1983

claim they incorporate by reference the same facts that form the basis of their taking

claim. (Id., ¶¶22–25, PageID #6–7.) Therefore, the Court analyzes the claims

together.

The Fifth Amendment, made applicable to the States by the Fourteenth

Amendment, provides that “private property [shall not] be taken for public use,

without just compensation.” U.S. Const. amend. V; see Cedar Point Nursery v.

Hassid, 594 U.S. 139, 147 (2021). “[A] property owner has a claim for a violation of

the Takings Clause as soon as a government takes [their] property for public use

without paying for it.” Knick v. Twp. of Scott, 588 U.S. 180, 189 (2019). “If a local

government takes private property without paying for it, then that government has

violated the Fifth Amendment.” Id. “And the property owner may sue the

government at that time in federal court for the ‘deprivation’ of a right ‘secured by

the Constitution.” Id. (citing 42 U.S.C. § 1983). This is true for both physical and

regulatory takings. Barber v. Charter Twp. of Springfield, 31 F.4th 382, 387 (6th Cir.

2022).

Under these standards, the Court concludes that the complaint, construed in

Plaintiffs’ favor, fails to plead that a taking of a property has occurred. Plaintiffs’

allegations are about what Defendants wish to do and what will likely happen if the

ditch improvement project moves forward. (ECF No. 1, ¶¶ 11–13, PageID #3–4.) The

complaint alleges, among other things, that Defendants “desire to acquire interests”

in Plaintiffs’ property and that they are “seeking to wrongfully take their real

property without paying compensation.” (Id.) Nowhere in the complaint do Plaintiffs

provide details about how Defendant’s actions effected a taking or even when the

taking allegedly occurred. The most detail provided in the complaint is that

Defendants “in pursuit of the ditch improvement project, seek to take a[nd] create

residual injury and damage to their real property by the appropriation of a fifteen

(15) foot swath of real property along their southern property boundary with a

perpetual drainage easement.” (Id., ¶ 4, PageID #2.) These facts reference actions

by Defendants that have not yet taken place and allude to a taking in the future. But

a future taking does not give Plaintiffs a claim for a violation of the Takings Clause

or for deprivation of their constitutional rights. Knick, 588 U.S. at 189.

Indeed, Plaintiffs admit that Defendants have not yet taken any interest in

their property. Ud., § 10, PageID #3 (“Defendants have no recorded easement over

[P]laintiffs’ real property.”).) All of Plaintiffs’ claims are for future acts, not a taking

that has occurred. Because Plaintiffs have not pleaded that a taking has occurred,

they cannot state a claim for just compensation. Knick, 588 U.S. at 190 (quoting

United States v. Dow, 357 U.S. 17, 22 (1958)). Plaintiffs are only entitled to just

compensation at the time of a taking, which Plaintiffs have not shown has taken

place. Id.

CONCLUSION

For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss

(ECF No. 10).

SO ORDERED.

Dated: November 24, 2025

J.Philip Calabrese”

United States District Judge

Northern District of Ohio