Weyrich

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRANNON FARMS, LLC,

Plaintiff,

Case No. 1:24-cv-730

v.

JUDGE DOUGLAS R. COLE

CARLETA L. WEYRICH, et al., Magistrate Judge Bowman

Defendants.

OPINION AND ORDER

Plaintiff Brannon Farms, LLC, and Defendants Carleta and Philip Weyrich

are neighbors located on opposite sides of Kelly Lane.1 Their dispute began in 2021

when Brannon Farms started a logging operation, which in turn required

improvements to Kelly Lane to support additional truck travel. Then, the following

year, Brannon Farms submitted a petition to Jackson Township, the local governing

body, seeking to vacate the end of Kelly Lane where Brannon Farms owns the

surrounding property. (“Vacating” means that the indicated portion of Kelly Lane

would no longer be a public road, and the land would be returned to the landowners

of the adjoining lots (i.e., Brannon Farms).) The Weyrichs, meanwhile, filed a lawsuit

against Brannon Farms in state court regarding a property line dispute, which

1 Interestingly, while both parties spell it “Kelly Lane,” both Google Maps and the Highland

County Auditor’s website refer to it as “Kelley Lane.” As it does not affect the outcome here,

the Court declines to further explore the issue of the potentially missing “e,” and will rely on

the parties’ spelling.

included a challenge to the proper location of Kelly Lane and to an alleged easement.

After the Weyrichs lost that lawsuit, Brannon Farms responded by suing them here.

Specifically, Brannon Farms asserts claims under 42 U.S.C. § 1983 and related state

law, alleging that Carleta Weyrich, who is Jackson Township’s fiscal officer, violated

Brannon Farms’ constitutional right to petition the government and otherwise

misused her office to interfere with and frustrate Brannon Farms’ efforts regarding

Kelly Lane. Carleta2 now moves for judgment on the pleadings, seeking dismissal of

Brannon Farms’ entire Complaint.

For the reasons stated below, the Court GRANTS the Motion (Doc. 14) IN

PART. Specifically, the Court DISMISSES WITHOUT PREJUDICE Count 1, but

holds the state-law claims (Counts 2, 3, and 4) in abeyance (pending Brannon Farms’

efforts, if any, to replead Count 1 as described below). The Court also DISMISSES

WITH PREJUDICE Count 5 of the Complaint. But because Brannon Farms may be

able to cure deficiencies in Count 1, the Court grants Brannon Farms 30 days to move

for leave to amend its Complaint, including attaching the proposed Amended

Complaint. Beyond that, because the Court effectively dismisses the Complaint, it

DENIES AS MOOT Plaintiff’s Motion to Transfer Records from Highland County

(Doc. 21) and Plaintiff’s Motion for Leave to File Plaintiff’s Motion for In Camera

Review of Documents Under Seal (Doc. 22).

2 Because the Defendants share a last name, the Court will refer to them individually by their

first names.

BACKGROUND3

Plaintiff Brannon Farms and Defendants Carleta and Philip Weyrich own

neighboring property on Kelly Lane in Jackson Township, Highland County, Ohio.

(Compl., Doc. 1, #4). These are not small properties; the Weyrichs own approximately

148 acres, and Brannon Farms owns over 280 acres that are relevant to this dispute.

(Id.). One stretch of Kelly Lane divides the parties’ properties (with Brannon Farms

to the East and the Weyrichs to the West). (Id.).4 But that changes at the southern

terminus of the road. (Id.). There, Brannon Farms owns all of the property

surrounding the lane’s end. (Id.).

In July 2021, Brannon Farms started a logging operation on approximately

eighty acres of its property located at the end of the road. (Id. at #6). Because Kelly

Lane is only a “one lane gravel roadway,” Brannon Farms and its contracted logger

thought that the road needed improvements in order to handle “the multiple semi-

trucks and equipment that would be traversing Kelly Lane for the Brannon timber

harvest.” (Id. at #4, 7). So they worked with Jackson Township to “improve the

culverts and gravel roadway.” (Id. at #7).

3 While the Court “must accept as true all [of Brannon Farms’] well-pleaded factual

allegations” at this stage, Bates v. Green Farm Condo. Ass’n, 958 F.3d 470, 480 (6th Cir.

2020), it reminds the reader that they are just that—allegations.

4 See also Highland County Auditor,

https://beacon.schneidercorp.com/Application.aspx?AppID=1116&LayerID=28103&PageTyp

eID=1&PageID=11526&Q=217983890&KeyValue=21-26-000-057.00 (displaying map of

parcels).

Apparently, the Weyrichs did not appreciate these “improvements.”

Specifically, Brannon Farms alleges Carleta wrongfully told the Jackson Township

Trustees and others that:

the culverts did not need to be replaced and/or were not sized correctly,

claiming that culverts were unlawfully being extended beyond the road

right of way, claiming that adjacent landowner property (her own

property) was being damaged, that the road was illegally widened, that

an illegal meeting was held between the Jackson Township trustees and

the loggers/Brannon, that the Jackson Township Trustees accepted

bribes from the loggers and/or Brannon, that Kelly had been changed

and/or that Kelly Lane was turned over to the loggers/Brannon.

(Id. at #7). Importantly, Carleta was Jackson Township’s fiscal officer at the time the

dispute began. (Id. at #2–3).5 Brannon Farms claims that she made these improper

statements in her official position, setting up a conflict of interest. (Id. at #7).

At the same time that all of this was occurring, Brannon Farms also was

negotiating a land purchase with Philip Weyrich’s sister, Carol Ann Drummond. (Id.

at #3). The transaction involved a 360-acre parcel also located along Kelly Lane. (Id.).

On October 15, 2021, Brannon Farms and Drummond entered into a purchase

contract. (Id.). And on January 20, 2022, Brannon Farms officially took title to the

property. (Id. at #5). Over the following months, Brannon Farms built fences and

gates around it. (Id. at #8).

With the addition of the new property, on September 30, 2022, Brannon Farms

submitted a petition to Jackson Township to vacate the southern portion of Kelly

5 Brannon Farms does not make specific allegations regarding Philip Weyrich, other than

that he is also a property owner alongside Carleta. (See, e.g., Doc. 1, #4). Moreover, all of the

claims surround Carleta’s alleged misuse of her office in various ways. (Id. at #11–15). Should

Brannon Farms take up the Court’s offer to amend the Complaint, it either needs to plead

specific factual allegations involving Philip or remove him as a defendant.

Lane “due to ongoing issues with unlawful activity by third parties.” (Id. at #8). As

they had done with the improvements, the Weyrichs opposed this move. (Id.). To

start, on December 2, 2022,6 the Weyrichs sued Brannon Farms in the Highland

County Court of Common Pleas regarding a “property line dispute, request for an

easement and/or request to relocate Kelly Lane.” (Id. at #8–9). Brannon Farms,

however, claims that this lawsuit was “frivolous” and simply a means to frustrate its

efforts to proceed with the petition to vacate it had filed with Jackson Township. (Id.).

Additionally, Brannon Farms claims that Carleta used her official position to contact

the Jackson Township Trustees and the Highland County Prosecutor’s office to

influence the Trustees’ vote on Brannon Farms’ petition. (Id. at #10, 12).

The Weyrichs did not succeed on either the judicial or the extra-judicial front.

First, the state court dismissed some of the Weyrichs’ claims for lack of jurisdiction

and granted summary judgment to Brannon Farms on all the remaining claims. (Id.

at #9–10). And in its final judgment, it further quieted title regarding Brannon

Farms’ property against all of the Weyrich’s claims. (Id. at #10; Final Judgment

Entry, Philip J. Weyrich v. Brannon Farms, LLC, No. 22-cv-212 (Highland Cnty.

Com. Pl. Apr. 29, 2024)). Second, the Jackson Township Trustees approved Brannon

Farms’ petition to vacate. (Doc. 1, #10).

6 The Complaint states the lawsuit was filed on December 2, 2023. (Doc. 1, #8). But public

records show that the suit was actually filed in 2022, which matches the petition’s timeline.

https://eaccess.hccpc.org/eservices/searchresults.page?x=xjwsTQbVistzGqvat2juXGNEFBu

DVVyINWKAkhXhLEcuIVotU1Ve9MxcLU-nLuD-eWCl4ez2kG7neA3Qr4ixiQ. The Court is

permitted to “take judicial notice of public records.” Clark v. Stone, 998 F.3d 287, 298 (6th

Cir. 2021).

The Trustees’ approval was not the end of the road though; the Highland

County Commission also needed to approve the request. (Id.). That’s where Brannon

Farms’ winning streak stopped. The Highland County Commission passed Resolution

No. 23-22, stating it would “take no action” on the petition. (Id. at #11). And Brannon

Farms contends that is because Carleta wrongfully interfered to produce this result.

(Id.).

Upset with its inability to move forward with its plans, Brannon Farms sued

the Weyrichs here. The Complaint raises five claims: (1) a claim under 42 U.S.C.

§ 1983 alleging that Carleta violated the First Amendment by retaliating against

Brannon Farms for filing the petition to vacate; (2) a claim that the Weyrichs

maliciously interfered with Brannon Farms’ right to petition the government; (3) a

claim for abuse of process and malicious civil prosecution; (4) a claim that Carleta

violated Ohio Revised Code § 2307.60; and (5) a request for punitive damages. (Id. at

#11–15). In response, Carleta and Philip Weyrich answered separately, (Docs. 5, 9),

and Carleta moved for judgment on the pleadings, (Doc. 14). Brannon Farms

responded to that motion, (Doc. 15), and Carleta replied, (Doc. 16). So the motion for

judgment on the pleadings is now ripe.

LEGAL STANDARD

When a defendant seeks judgment on the pleadings under Federal Rule of Civil

Procedure 12(c), the analysis “generally follows the same rules as a motion to dismiss

the complaint under Rule 12(b)(6).” Bates, 958 F.3d at 480. To survive a motion to

dismiss under Rule 12(b)(6), in turn, a plaintiff must allege “sufficient factual

matter ... to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (cleaned up). While a “plausible” claim for relief does not require

a showing of probable liability, it requires “more than a sheer possibility that a

defendant has acted unlawfully.” Id. The complaint must allege sufficient facts for

the Court “to draw the reasonable inference that the defendant is liable.” Id. In

determining whether the allegations meet that standard, the Court “construe[s] the

complaint in the light most favorable to the plaintiff, draw[s] all reasonable

inferences in its favor, and accept[s] all well-pleaded allegations in the complaint as

true.” Keene Grp., Inc. v. City of Cincinnati, 998 F.3d 306, 310 (6th Cir. 2021). But

that does not mean the Court must take the allegations as gospel, no matter how

unsupported they are. The Court may disregard “naked assertions” of fact or

“formulaic recitations of the elements of a cause of action.” Iqbal, 556 U.S. at 678

(cleaned up).

In other words, a plaintiff must provide a “short and plain statement of the

claim showing that the pleader is entitled to relief.” Keys v. Humana, Inc., 684 F.3d

605, 608 (6th Cir. 2012) (quoting Fed. R. Civ. P. 8(a)(2)). To meet this pleading

standard, a complaint must contain “either direct or inferential allegations respecting

all material elements to sustain a recovery under some viable legal theory.” Terry v.

Tyson Farms, Inc., 604 F.3d 272, 275–76 (6th Cir. 2010) (quotation omitted). And

“conclusory allegations or legal conclusions masquerading as factual allegations will

not suffice.” Id. at 276 (quotation omitted). In short, a court will dismiss an action

when “there is no law to support the claims made” or “the facts alleged are insufficient

to state a claim.” Stew Farm, Ltd. v. Nat. Res. Conservation Serv., 967 F. Supp. 2d

1164, 1169 (S.D. Ohio 2013).

LAW AND ANALYSIS

Defendant Carleta Weyrich moves for judgment on the pleadings and to

dismiss Plaintiff Brannon Farms’ Complaint in its entirety. (Doc. 14, #71). Broadly

speaking, Carleta argues that Brannon Farms fails to allege sufficient facts to

support its claims. (Id. at #72–74). Because the Court agrees that Count 1 contains

only “conclusory allegations,” Terry, 604 F.3d at 276, the Court dismisses that claim

without prejudice. And then, because the Court dismisses the sole federal claim in

this action, which is also the sole basis for its jurisdiction over the remaining state-

law claims, the Court declines to exercise supplemental jurisdiction over those claims,

at least for now. The Court also declines to address the qualified immunity argument

as to the (now-dismissed) § 1983 claim because the allegations lack the specificity

needed to evaluate whether Carleta violated a clearly established right.

A. Brannon Farms’ First Amendment Retaliation Claim Fails.

Start with Brannon Farms’ § 1983 claim alleging retaliation in violation of the

First Amendment. (Doc. 1, #12). Section 1983 provides a cause of action for private

individuals to sue “[e]very person who, under color of any statute … subjects, or

causes to be subjected, any citizen … to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. In other words,

when a plaintiff sues an official in their individual capacity, a plaintiff must allege

two elements to support a § 1983 claim: (1) that the defendants deprived the plaintiff

of a right secured by federal law, and (2) that the defendant acted under color of state

law in doing so. Adickes v. S. H. Kress & Co., 398 U.S. 144, 149–50 (1970); Harcz v.

Boucher, 763 F. App’x 536, 540 (6th Cir. 2019). The Court addresses both elements

and in that order.7

1. Brannon Farms Fails to Adequately Plead a Deprivation of Its

First Amendment Rights.

The First Amendment protects “the right of the people … to petition the

Government for a redress of grievances.” U.S. Const. amend. I. And “government

retaliation for filing a petition violates the literal language of the Petition Clause.”

Gable v. Lewis, 201 F.3d 769, 772 (6th Cir. 2000). To succeed on a constitutional claim

of interference with the right to petition based on retaliation, a plaintiff must prove:

“(1) [it] engaged in protected conduct; (2) the defendants took an adverse action

7 Brannon Farms also sues Carleta in her official capacity. (Doc. 1, #1). “[I]ndividuals

sued in their official capacities stand in the shoes of the entity they represent.” Alkire

v. Irving, 330 F.3d 802, 810 (6th Cir. 2003) (citations omitted). Accordingly, a “suit

against an individual in his official capacity is the equivalent of a suit against [that]

governmental entity.” Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994) (citation

omitted). A claim against Carleta in her official capacity, then, is the equivalent of

suing Jackson Township. A viable § 1983 claim against a governmental entity must

allege (1) a constitutional violation, which (2) was directly caused by a municipal

policy or custom. Hardrick v. City of Detroit, 876 F.3d 238, 243 (6th Cir. 2017)

(citation omitted). There are four paths to proving a policy or custom: “(1) the

existence of an illegal official policy or legislative enactment; (2) that an official with

final decision[-]making authority ratified illegal actions; (3) the existence of a policy

of inadequate training or supervision; or (4) the existence of a custom of tolerance or

acquiescence of federal rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th

Cir. 2013) (citation omitted).

Brannon Farms has not attempted to allege any of these four avenues. It does not

discuss any potential policy, allege that Carleta had final decision-making authority,

discuss training or supervision, nor assert a custom of tolerance. So the Court

dismisses the official capacity version of the claim, too.

against [it]; and (3) a causal connection exists between the two.” Rudd v. City of

Norton Shores, Mich., 977 F.3d 503, 513 (6th Cir. 2020) (citing Novak v. City of

Parma, 932 F.3d 421, 427 (6th Cir. 2019)). Here, Brannon Farms fails to adequately

plead the second element of its retaliation claim.

a. Brannon Farms Engaged in Protected Conduct.

All agree that Brannon Farms’ underlying conduct here falls within the First

Amendment’s ambit. Brannon Farms submitted a petition to the Jackson Township

Trustees to vacate the end of Kelly Lane, which eventually was forwarded to the

Highland County Commission, both of which are local governing bodies. (Doc. 1, #8,

10). “The plain language of the First Amendment makes clear that a ‘petition’ triggers

the amendment’s protections.” Campbell v. PMI Food Equip. Grp., Inc., 509 F.3d 776,

789 (6th Cir. 2007) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 387 (6th Cir. 2007)).

So Brannon Farms adequately pleaded the first element.

b. Brannon Farms Did Not Allege Sufficient Facts to

Establish an Adverse Action, at Least as to Any Conduct

Other Than the Weyrichs’ Lawsuit.

Brannon Farms stumbles on the second element, though. To establish an

adverse action, a plaintiff must plead that the defendant took an action that is

“capable of deterring a person of ordinary firmness from exercising the constitutional

right in question.” Rudd, 977 F.3d at 514 (quotation marks and citation omitted)

(emphasis original). True, the defendant’s conduct need not actually deter the

plaintiff, but not just any arguably adverse action will do. Harbin-Bey v. Rutter, 420

F.3d 571, 579 (6th Cir. 2005). So the question becomes how severe the action must be

to qualify as adverse under this standard. As a general matter, the effect “need not

be great.” Rudd, 977 F.3d at 514. Moreover, where, as here, the plaintiff is a private

party, as opposed to a public employee or prisoner, there is a lower threshold of injury.

Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 724 (6th Cir. 2010). In other words,

“[t]he plaintiff’s evidentiary burden is merely to establish the factual basis for [its]

claim that the retaliatory acts amounted to more than a de minimis injury.” Bell v.

Johnson, 308 F.3d 594, 606 (6th Cir. 2002) (citation omitted). And this inquiry is

highly context dependent. Thaddeus-X, 175 F.3d at 388.

But, while the Sixth Circuit’s description of what counts as a qualifying injury

(“more than de minimis”) suggests a low hurdle, the few cases to actually address

that question in the private-individual plaintiff context seem to adopt a somewhat

higher standard. The exact contours of that higher standard, though, are not

altogether clear. Part of the problem is the paucity of caselaw on the precise issue;

most First Amendment retaliation caselaw involves alleged retaliation against

prisoners or public employees. See Fritz, 592 F.3d at 724 (“There are very few cases

in this Circuit addressing First Amendment retaliation against private individuals.”).

But while there admittedly are not many decided cases, the available precedent

nonetheless offers some helpful guiding principles.

First, if a defendant directly exercises governmental power against the

plaintiff, that generally suffices to establish an adverse action. See id. at 728. In Fritz,

for example, the plaintiff, a private individual, wanted to have a home office and post

a sign advertising her insurance services there, which required various zoning and

signage variances. Id. at 720. In pursuit of these variances, she commented at public

town meetings and later criticized the defendants, the township, and specifically the

Township Supervisor, in publicized letters to the press. Id. at 721. In response,

several officials exercised their governmental power by directly denying her zoning

and signage variations, and the court held those were plausible adverse actions in

retaliation for her speech because they constituted a threat to her economic

livelihood. Id. at 728. This is the most straightforward form of retaliation; the public

official makes a decision in their formal role that directly, and negatively, impacts

the speaking individual. But see Davidian v. O’Mara, 210 F.3d 371, 2000 WL 377342,

at *4 (6th Cir. 2000) (Table) (holding there was no adverse action when officials

blocked reporter’s access to public records in response to unfavorable articles because

it was not the “type of threatening or intimidating behavior” that would deter a

person of ordinary firmness).

But when a public official uses the power or influence of their position less

directly, as Brannon Farms alleges happened here, things get murkier. That is

particularly true where, as here, the claim is based partially on a public official’s

alleged statements. True, a public official’s improper comments in and of themselves

can establish an adverse action. But not all such comments work. After all, “it would

trivialize the First Amendment to hold that harassment for exercising the right of

free speech was always actionable no matter how unlikely to deter a person of

ordinary firmness from that exercise.” Bloch v. Ribar, 156 F.3d 673, 679 (6th Cir.

1998) (bracket omitted) (quoting Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)).

To that end, the plaintiff must establish that the comments impose a sufficient injury.

See Fritz, 592 F.3d at 727.

Once again taking Fritz as an example, public officials allegedly retaliated

against Fritz for comments she made at a public meeting and in related letters to the

press. Id. at 723. Specifically, one the defendants allegedly called Fritz’s employer

several times, hoping to enlist the employer’s help in “pressur[ing] Ms. Fritz to

discontinue attending Comstock meetings and express[ing] opinions on Comstock

issues publicly and privately and [to] discontinue petitioning Comstock for a redress

of grievances, as well as pressure [her employer] to move out of Comstock or

terminate its relationship with Ms. Fritz or both.” Id. at 725. Beyond those calls, the

plaintiff further alleged that the defendant made multiple, specific defamatory

statements to her employer. Id. Three weeks after the last of these calls, Fritz’s

employer fired her. Id. at 721. According to the court, the defamatory comments

themselves did not constitute an adverse action there. Id. at 727. Rather, it was only

because the conversations also “attempted to threaten her business relationship”

with her employer that they cleared the bar, particularly because her employer

terminated her shortly thereafter. Id. at 728. Termination, and the threat thereof,

sufficed as an adverse action because it would deter a person of ordinary firmness

from engaging in similar conduct. Id.

That is not to say, though, that the contents of an official’s statements can

never be enough to show an adverse action. In Bloch, for example, the Sixth Circuit

held that the plaintiffs adequately pleaded that a sheriff defendant took an adverse

action when he “reveal[ed] irrelevant, humiliating, and confidential information”

about the plaintiff’s rape in response to the plaintiff’s public criticism of his

investigation. 156 F.3d at 681. The court found that “embarrassment, humiliation,

and emotional distress,” when sufficiently severe, can rise to the level of an adverse

action. Id. at 679–80. The question is whether the statements themselves would “chill

people of ordinary firmness from continuing to engage in their constitutionally

protected activity.” Id. at 681.

Sixth Circuit precedent also offers examples of statements that fall short. In

Mattox v. City of Forest Park, for example, the city police department released a 690-

page report of its investigation into the local fire department. 183 F.3d 515, 518. The

plaintiffs, a public official and an individual firefighter, claimed that the report

contained irrelevant personal information and sought to damage their reputations as

retaliation for the plaintiffs’ prior criticisms of the fire department. Id. at 520. While

a “close question,” the Sixth Circuit concluded that the private individual’s

allegations could not survive summary judgment because “the revelations at issue in

this case do not rise to the level of those in Bloch.” Id. at 523. Accordingly, the plaintiff

needed to specify how the report injured her—to “concretize her personal injury.” Id.;

see also Mezibov v. Allen, 411 F.3d 712, 715, 722–23 (6th Cir. 2005) (holding that

there was no adverse action when a district attorney made comments about a defense

attorney’s experience and ethics allegedly in response to the defense attorney’s

motions to dismiss and to disqualify the district attorney).

Putting that all together, a plaintiff must allege an adverse action, whether

through direct exercise of government power or otherwise. Absent such an action, the

claim fails. For direct exercise claims, the analysis is straightforward. But for claims

that are not based on a direct exercise of government power, when the alleged adverse

actions consist of a public official’s comments, the analysis turns on how the nature

of those comments. Where they are sufficiently egregious (e.g., disclosing personal

details of a rape investigation), the court will presume that the resulting harm

suffices to deter a person of ordinary firmness from engaging in protected conduct.

But for less embarrassing or inherently harmful statements, the court does not afford

that same presumption. Rather, the plaintiff must allege the specific harm that they

contend they suffered from the statement, so the court can assess whether that harm

plausibly rises to the requisite level to constitute an adverse action.

So how does that play out here? The Court agrees with Carleta that Brannon

Farms has failed to allege that she took a qualifying adverse action. To be clear, that

is not to say that the Court agrees with all of Carleta’s assertions on that front. For

example, she argues that there was no adverse action because Brannon Farms was

not in fact deterred from pursuing its petition. (Doc. 14, #77). But, as noted above,

actual deterrence is not required; just action that is “capable of deterring a person of

ordinary firmness.” Harbin-Bey, 420 F.3d at 579; Rudd, 977 F.3d at 514. That

Brannon Farms proceeded with its petition is thus not dispositive.

But Brannon Farms’ allegations of retaliation still fail for several reasons—

some related to timing and others related to the nature of the alleged statements.

Broadly speaking, the allegations fall into two groups: (1) those that refer to conduct

that allegedly occurred before Brannon Farms filed its petition on September 30,

2022, and (2) those that occurred afterwards. Conduct in the former category, almost

by definition, cannot constitute a retaliatory action. Retaliation, after all, is

something that occurs in response to an event. So, as relevant here, it is not

reasonable to conclude that Carleta retaliated against Brannon Farms for filing the

petition to vacate through conduct that occurred before the petition was ever filed.

True, one could conceive of an exception to this rule—Carleta may have threatened

retaliation if Brannon Farms moved forward with a petition (e.g., something along

the lines of “if you file that petition, I will use my office to harm you”); such a threat

may well be actionable. But Brannon Farms alleges nothing of that sort here. Instead,

it merely alleges that Carleta made various improper comments to various officials

regarding its logging operation and improvements to Kelly Lane. (Doc. 1, #7). And

the Complaint suggests that those comments occurred sometime between when

Brannon Farms started its timber operation in July 2021 and a meeting held on

August 27, 2021. (Id. at #6–7). Assuming these comments fall into that timeline or

thereabouts, that would mean these comments occurred over a year before Brannon

Farms submitted its petition. Regardless of the propriety of such comments, they

cannot have been made in retaliation for Brannon Farms submitting the petition.8

8 To the extent that Brannon Farms claims Carleta misused her office with respect to

Brannon Farms’ logging operation, (Doc. 1, #2), this is not properly a First Amendment claim.

Brannon Farms does not allege it engaged in any protected conduct related to the logging

operation, such as filing another petition or requesting zoning variances. Brannon Farms at

most alleges that “Brannon’s contracted logger, Gladfelter, began working with the Jackson

Similarly, any of the claims regarding Carleta misusing her position to learn

confidential information or undertaking other efforts to interfere with these

improvements, specifically, would also have taken place before Brannon Farms filed

its petition. (Id.). So those efforts could not constitute retaliation either.

Now turn to the allegations about actions Carleta allegedly undertook after the

filing occurred. Those claims further break down into two categories: those related to

the Jackson Township Trustees’ vote, and those related to the Highland County

Commission’s vote. As to the former, Carleta argues that the Jackson Township

Trustees approved the petition, so Brannon Farms was not harmed. (Doc. 14, #77).

The Court agrees; Brannon Farms was not adversely impacted by the Jackson

Township Trustees’ vote considering they voted to grant the petition. (Doc. 1, #10).

And Brannon Farms fails to even generally describe comments by Carleta that could

plausibly meet the high bar for a comments-only claim as set forth above. Again, the

Court takes no position on whether Carleta did or did not make improper comments

to the Trustees. Rather, the point is simply that Brannon Farms cannot claim it

suffered any “concrete injury” when the Trustees voted in its favor, and it fails to

allege enough about the content of any such statements to proceed purely on

egregiousness grounds. See Mattox, 183 F.3d at 523.

Carleta’s actions surrounding the Highland County Commission’s vote,

however, present a closer call. The Commissioners voted to “take no action” on the

Township trustees to improve the culverts and gravel roadway.” (Id. at #7). But this is not

sufficient to allege protected conduct.

petition. (Doc. 1, #11). In doing so, they effectively denied the petition, at least in the

short-term, so this plausibly could constitute a concrete injury.

But, for two reasons, this still fails to support a retaliation claim. First, the

“right to petition the government does not guarantee a response to the petition or the

right to compel government officials to act on or adopt a citizen’s views.” Rudd, 977

F.3d at 516 (quoting Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999)). Brannon

Farms then cannot claim that the nonaction, in and of itself, injured it because it was

not entitled to a favorable vote. True, if improper comments caused that nonaction,

things may be different. But the inaction itself does not suffice.

And that leads to the second and related problem. Brannon Farms’ allegations

about Carleta’s role in causing the nonaction vote are wholly conclusory, which does

not clear the bar needed to survive a motion for judgment on the pleadings. Terry,

604 F.3d at 276. On this point, Brannon Farms simply alleges that (1) Carleta

wrongfully contacted the Highland County Prosecuting Attorney, the Highland

County Commissioners, and other officials to defeat the petition, and (2) Carleta filed

the “frivolous” state lawsuit to interfere with the petition. (Doc. 1, #9; Doc. 15, #93

(citing Doc. 1, #12)). True, as to the first, Brannon Farms says that, after the Trustees

approved the petition and it moved to the Highland County Commissioners, the

Commissioners tabled the petition “as a direct consequence of Defendant’s efforts to

influence the result of the vote.” (Doc. 1, #11). But Brannon Farms does not provide

any detail on how Carleta allegedly influenced their vote.

To be fair, at other points, the Complaint alleges that “[Carleta] wrongfully

contacted the Highland County Prosecutor’s office using her position.” (Id. at #10, 12).

And in its Response to the instant motion, Brannon Farms points to several other

paragraphs to bolster its claim, particularly that “Defendant Carleta Weyrich used

her position as the Jackson Township fiscal officer to accomplish what an ordinary

citizen could not.” (Doc. 15, #93 (quoting Doc. 1, #12)). Similarly, the Complaint

asserts that Carleta used her position to “learn otherwise confidential information

that is not generally available to the public.” (Doc. 1, #6). But once again, these are

all conclusory allegations. How did she use her position? What did she learn?

Basically, what did she actually do? The Complaint provides no insight on these

topics. And such vague and conclusory allegations simply do not suffice to meet the

heightened pleading standard that Iqbal/Twombly adopted. Terry, 604 F.3d at 276.

For example, unlike the plaintiff in Fritz, Brannon Farms has not provided any

information about the substance of these communications or even approximately

when they occurred. 592 F.3d at 723. Nor does Brannon Farms allege anything about

Carleta’s statements that would suggest they rise to the level of the “irrelevant,

humiliating, and confidential information” at issue in Bloch. 156 F.3d at 681. Perhaps

Carleta did make “humiliating” comments or took other concrete steps to influence

the Highland County vote. But as currently pled, Brannon Farms offers only

conclusions on that front, without any factual allegations to back them up. So it failed

to establish an adverse action based on that alleged conduct.

That leaves the lawsuit. The Weyrichs filed a state lawsuit against Brannon

Farms on December 2, 2022.9 (Doc. 1, #8). Brannon Farms alleges that it “was under

the guise of some sort of property line dispute, request for an easement and/or request

to relocate Kelly Lane.” (Id. at #9). The state court ultimately granted summary

judgment in favor of Brannon Farms on all of the Weyrichs’ claims, and later ordered

that Brannon Farms’ title be quieted in its favor. (Id. at #9–10). Because the Weyrichs

did not have any valid reasons to make these claims, it argues, the lawsuit was

frivolous and only a way to create controversy around the petition. (Id. at #9, 11–12).

Moreover, Brannon Farms incurred “damages, attorney fees and costs.” (Id. at #10).

A lawsuit filed by a government official potentially could serve as an adverse

action. But the Court need not decide that question now because, as explained below,

Plaintiff cannot establish that Carleta was acting under color of law when she filed

and pursued that lawsuit.

2. Brannon Farms Did Not Adequately Plead that Carleta Acted

Under Color of Law.

In addition to plausibly alleging that the defendant deprived the plaintiff of a

right secured by federal law, to advance a § 1983 claim, a plaintiff must also plausibly

allege that the defendant acted under color of state law in doing so. Adickes, 398 U.S.

at 150. “Private individuals may be considered state actors if they exercise power

‘possessed by virtue of state law’ and if they are ‘clothed with the authority of state

law.’” Carl v. Muskegon Cnty., 763 F.3d 592, 595 (6th Cir. 2014) (quoting United

9 As noted above, see supra note 6, the Complaint states the lawsuit was filed on December

2, 2023, (Doc. 1, #8), but public records indicate it was filed in 2022.

States v. Classic, 313 U.S. 299, 326 (1941)). “But not every action by a public official

is done under color of state law.” Viola v. Yost, No. 22-3262, 2023 WL 6222366, at *2

(6th Cir. June 12, 2023). When evaluating a police officer’s actions, for example, it is

“not the clothing of the actor or even the status of being on duty, or off duty, which

determines whether the officer has acted under color of law.” Redding v. St. Eward,

241 F.3d 530, 533 (6th Cir. 2001) (quoting Stengel v. Belcher, 522 F.2d 438, 441 (6th

Cir. 1975)). Rather, it is the “nature of the act performed” that determines whether

the public official acted under color of law. Meadows v. Enyeart, 627 F. App’x 496, 501

(6th Cir. 2015) (citation omitted). Sometimes this question can be resolved as a matter

of law, but it frequently involves factual inquiries that make it improper to decide at

this stage. See Chapman v. Higbee Co., 319 F.3d 825, 834 (6th Cir. 2003); Layne v.

Sampley, 627 F.2d 12, 13 (6th Cir. 1980).

As a reminder, there are two main sets of allegations at play: (1) that Carleta

wrongfully communicated with the Jackson Township Trustees, Highland County

Prosecutor’s Office, and Highland County Commissioners, and (2) that Carleta

improperly filed a state lawsuit. (Doc. 1, #12). The analysis is slightly different for

each.

Starting with the allegedly wrongful communications, it is possible that

Carleta acted under color of state law in making them. Carleta is Jackson Township’s

fiscal officer. (Doc. 1, #2). As fiscal officer, she is responsible for keeping records of the

township trustees’ meetings, including its accounts and transactions, and has access

to the record of township roads and the record of township officers’ oaths and bonds.

See Ohio Rev. Code §§ 507.01, .04, .05. It is possible that by virtue of her position, she

had connections or relationships to the Jackson Township Trustees that she would

not have had otherwise. And comments made in her official position could be “clothed

with the authority of state law.” See Carl, 63 F.3d at 595 (citation omitted).

Even though the Court can follow this logic, though, Brannon Farms does not

allege any facts about the circumstances of Carleta’s communications with the

various trustees and other public officials, as described above. See supra Law &

Analysis, Part A.1.b. It does not allege when these communications occurred, whether

Carleta used her official email or office phone number or other symbol of her public

position, or what the substance of the contact was. Instead, Brannon Farms merely

makes conclusory allegations that Carleta wrongfully contacted the various officials.

(See, e.g., Doc. 1, #10 (“[Carleta] wrongfully contacted the Highland County

Prosecutor’s office using her position as the Jackson Township fiscal officer in an

attempt to frustrate, influence and/or inhibit [the] Brannon application.”)). This is

not enough to plausibly allege that Carleta’s actions were “clothed with the authority

of state law.” Carl, 763 F.3d at 595 (citation omitted). Considering the allegations

surrounding these communications were also too vague and conclusory to establish

an adverse action, these allegations fail to plausibly allege a § 1983 claim on both

elements.

As to the state court lawsuit, under the allegations here, the only plausible

conclusion is that Carleta was acting solely as a private property owner when she

sued Brannon Farms. Indeed, “state officials have private lives and their own

constitutional rights.” Lindke v. Freed, 601 U.S. 187, 197 (2024). Imposing liability

on Carleta under § 1983 for seeking to vindicate her own rights as a property owner

may well violate Carleta’s own constitutional rights. After all, the state-action

requirement for a § 1983 suit is designed, at least in part, to “protect[] a robust sphere

of individual liberty for those who serve as public officials.” Id. at 196. Carleta

appears by all measures to have filed the state lawsuit with her husband Philip to

contest the location of Kelly Lane, amongst other property issues. And no one can

dispute that this issue—Kelly Lane’s correct location—had an impact on Carleta in

her private capacity as a property owner. So the nature of the act was “functionally

equivalent to that of any private citizen.” Meadows, 627 F. App’x at 501 (citation

omitted). Brannon Farms argues that the Weyrichs should have known their claims

would fail. That may well be, but so what? Merely because a county official files a

lawsuit—even a frivolous lawsuit—to protect their private interests as a property

owner does not make that lawsuit an exercise of state power or conduct that occurs

under color of state law. Without more information about the state court suit, the

Court is hard pressed to see how this element is satisfied.

In sum, Brannon Farms fails to adequately state a § 1983 claim for retaliation

for exercising its First Amendment right to petition the government. While the

petition is clearly protected conduct, Brannon Farms presents only conclusory

allegations to establish an adverse action. Additionally, it fails to demonstrate how

Carleta acted under color of state law as to at least some of her conduct. Thus, the

Court dismisses this claim.

B. The Court Declines to Exercise Supplemental Jurisdiction over the

Remaining State Law Claims, At Least For Now.

Brannon Farms also raises three state law claims for relief: (1) malicious

interference with the right to petition government, (2) abuse of process/malicious civil

prosecution, and (3) a claim under Ohio Revised Code § 2307.60. (Doc. 1, #12–14).

Because the Court dismisses the sole federal claim, it declines to exercise

supplemental jurisdiction over the remaining state law claims.

A federal court may exercise supplemental jurisdiction over state law claims

that constitute the same case or controversy as a claim over which the court has

original jurisdiction. 28 U.S.C. § 1367(a). But a court may decline supplemental

jurisdiction where “the district court has dismissed all claims over which it has

original jurisdiction.” Id. § 1367(c)(3). A district court’s decision whether to exercise

supplemental jurisdiction over state-law claims in the absence of any remaining

federal-law claims is “purely discretionary.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556

U.S. 635, 639 (2009) (citing 28 U.S.C. 1367(c)). “In determining whether to retain

jurisdiction over state-law claims, a district court should consider and weigh several

factors, including the ‘values of judicial economy, convenience, fairness, and comity.’”

Gamel v. City of Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010) (quoting Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). “When all federal claims are

dismissed before trial, the balance of considerations usually will point to dismissing

the state law claims.” Id. at 952 (quoting Musson Theatrical, Inc. v. Fed. Exp. Corp.,

89 F.3d 1244, 1254–55 (6th Cir. 1996)).

Here, the Court dismisses the only federal claim, and the values of judicial

economy, convenience, and fairness do not outweigh the interest in allowing state

courts to decide these issues of state law. Indeed, considerations of federalism and

comity counsel strongly in favor of dismissing the state-law claims. As the Supreme

Court has explained, “[n]eedless decisions of state law should be avoided both as a

matter of comity and to promote justice between the parties, by procuring for them a

surer-footed reading of applicable law.” United Mine Workers of Am. v. Gibbs, 383

U.S. 715, 726 (1966). Moreover, this case is still in its infancy. This opinion addresses

a motion for judgment on the pleadings, and there have been no other substantive

motions in this case. Judicial economy, then, strongly favors declining to exercise

supplemental jurisdiction. To be sure, Brannon Farms faces some inconvenience in

refiling a case in state court. But the parties have pursued claims in state court

before, and they can do so again.

But there is one caveat—the Court is dismissing the federal claim without

prejudice. It is possible that Brannon Farms could successfully amend its Complaint

to address the concerns that the Court raises above. In that event, the federal claim

would proceed, in turn resurrecting supplemental jurisdiction for the state-law claims

under § 1367. So rather than dispose of the state-law claims on jurisdictional grounds

now, the Court holds them in abeyance. Should Brannon Farms fail to move for leave

to amend in the time the Court provides, the Court will dismiss the state law claims

without prejudice.

C. Brannon Farms’ Claim for Punitive Damages is a Remedy, not a Claim

for Relief.

Lastly, Brannon Farms asserts what it characterizes as a “claim” for punitive

damages. The problem is that neither federal nor Ohio law recognizes a separate

cause of action for punitive damages; rather, it is merely a form of relief that can

attach to other substantive claims when certain conditions are met. Moskovitz v. Mt.

Sinai Med. Ctr., 635 N.E.2d 331, 342 (Ohio 1994); Taylor v. Islamic Republic of Iran,

811 F. Supp. 2d 1, 16 (D.D.C. 2011) (“It is a well-established principle that punitive

damages is not an independent cause of action.” (internal quotation marks omitted)).

For that reason, a standalone punitive damages count does not state a claim for relief.

Jestice v. Butler Tech. & Career Dev. Schs. Bd. of Educ., No. 1:11-cv-101, 2012 WL

71021, at *4 (S.D. Ohio Jan. 10, 2012). So the Court will dismiss this count.

To be clear, though, in dismissing the standalone claim for punitive damages,

the Court is not holding that, as a matter of law, punitive damages are not available

here. And Brannon Farms still includes a request for punitive damages in its prayer

for relief. (See Doc. 1, #15). The point is simply that it is not an independent cause of

action.

D. The Court Declines to Address Carleta’s Qualified Immunity

Argument.

Finally, a word about qualified immunity. Carleta argues that she is entitled

to qualified immunity for both the federal and state law claims. (Doc. 14, #85–87).

The Sixth Circuit has held that qualified immunity disputes are “more appropriately

dealt with at the summary-judgment stage or at trial,” instead of the motion-to-

dismiss stage. Mills v. Barnard, 869 F.3d 473, 487 (6th Cir. 2017). That is because

qualified immunity, which often turns on the specific facts of each case, is difficult to

adjudicate before discovery. Evans-Marshall v. Bd. of Educ. of Tipp City Exempted

Vill. Sch. Dist., 428 F.3d 223, 235 (6th Cir. 2005) (Sutton J., concurring). That is

particularly true here, where the Court finds that Brannon Farms did not plead

sufficient facts to make out the § 1983 claim. Given the dearth of facts, even in the

form of factual allegations, the Court is simply in no position to decide whether any

defendant violated a clearly established right. So the Court declines to address

qualified immunity at this juncture.

CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART Carleta’s Motion for

Judgment on the Pleadings (Doc. 14). Specifically, the Court DISMISSES

WITHOUT PREJUDICE Count 1 of the Complaint. For now, the Court holds the

state-law claims (Counts 2, 3, and 4) in abeyance. However, the Court DISMISSES

WITH PREJUDICE Count 5, for the reasons explained above. Because Brannon

Farms potentially could cure the other deficiencies, though, the Court GRANTS

Brannon Farms 30 days to file a motion for leave to amend Count 1 of the Complaint.

And because the Court effectively dismisses the Complaint, it DENIES AS MOOT

Plaintiff’s Motion to Transfer Records from Highland County (Doc. 21) and Plaintiff’s

Motion for Leave to File Plaintiff’s Motion for In Camera Review of Documents Under

Seal (Doc. 22).

SO ORDERED.

January 22, 2026

DATE DOUGLAS R. COLE

UNITED STATES DISTRICT JUDGE

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