United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge
REPORT AND RECOMMENDATION  THAT: (1)
DEFENDANTS' TWO MOTIONS FOR JUDGMENT ON THE PLEADINGS
(DOCS. 21, 26) BE GRANTED; (2) PLAINTIFFS' COMPLAINT BE
DISMISSED; AND (3) THIS CASE BE TERMINATED ON THE COURT'S
MICHAEL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
a civil case in which pro se Plaintiffs Corbin and
Emily Howard purport to assert federal claims under 42 U.S.C.
§ 1983 on the basis that Defendants violated their
constitutional rights. Doc. 13.
case is presently before the Court on two separate motions
for judgment on the pleadings. Docs. 21, 26. The first motion
was filed by Jackson Township Fiscal Officer Kimberly Dees
and Jackson Township Trustees Michael Hans, Dean Petry, and
Fred Kerler (hereinafter collectively referred to as
“the Township Defendants”). Doc. 21. The second
motion was filed by Preble County, Ohio Sheriff Michael
Simpson, Preble County Prosecutor Martin Votel, Preble County
Commission Administrative Assistant Julie Swisher, and Preble
Commissioners Chris Day, Denise Robertson, and Rodney Creech
(hereinafter collectively referred to as the County
Defendants”). Doc. 26.
April 29, 2019, Plaintiffs filed an untitled document that
appears responsive to the Township Defendants' answer and
contains what the Court liberally construed as a request for
leave to file an amended pleading. Doc. 27. The undersigned
granted Plaintiffs leave to file an amended complaint within
14 days from the entry of that Order on April 30, 2019. Doc.
29. On May 16, 2019, instead of filing an amended complaint,
Plaintiffs filed an untitled document appearing responsive to
Defendants' motions for judgment on the pleadings. Doc.
32.Defendants subsequently filed reply
memoranda. Docs. 35, 26. The undersigned has carefully
considered all of the foregoing, and Defendants' motions
are ripe for decision.
standard for reviewing a Rule 12(c) motion for judgment on
the pleadings is the same standard employed for reviewing a
Rule 12(b)(6) motion to dismiss. Sensations, Inc. v. City
of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). A
motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6)
operates to test the sufficiency of the complaint and permits
dismissal for “failure to state a claim upon which
relief can be granted.”
grounds for relief, Fed.R.Civ.P. 8(a)(2) requires that the
complaint contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
While Fed.R.Civ.P. 8 “does not require ‘detailed
factual allegations' . . . it demands more than an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Pleadings offering mere
“‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of action
will not do.'” Id. (citing
Twombly, 550 U.S. at 555). In determining a motion
to dismiss, “courts ‘are not bound to accept as
true a legal conclusion couched as a factual
allegation.'” Twombly, 550 U.S. at 555
(citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). Further, “[f]actual allegations must be enough
to raise a right to relief above the speculative
order “[t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678. In
addition to well-pleaded allegations in the complaint, the
Court may also consider “matters of public record,
orders, items appearing in the record of the case, and
exhibits attached to the complaint, ” as well as
documents attached to a defendant's motion to dismiss
that are important to the plaintiff's claims or if
referred to in the complaint. Amini v. Oberlin
College, 259 F.3d 493, 502 (6th Cir. 2001) (citation
omitted); Composite Tech., L.L.C. v. Inoplast Composites
S.A. de C.V., 925 F.Supp.2d 868, 873 (S.D. Ohio 2013).
is plausible where “plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Plausibility “is not
akin to a ‘probability requirement,' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. “[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged
-- but it has not ‘show[n]' -- ‘that the
pleader is entitled to relief.'” Id. at
679 (alteration in original) (citing Fed.R.Civ.P. 8(a)(2)).
allegations of Plaintiffs' complaint are more fully set
forth below in analyzing whether claims for relief are
alleged sufficiently therein. The crux of Plaintiffs'
allegations center upon the Township Defendants'
abatement of a nuisance on their property located on Route 35
in Jackson Township, Preble County, Ohio. Doc. 13 at PageID
relevant background preceding the allegations in
Plaintiffs' complaint are set forth in public records
attached to the Township Defendants' answer. See
doc. 20. These public records demonstrate that, on October
23, 2017, during a public Jackson Township Board of Trustees
meeting, Jackson Township Fiscal Officer Kimberly Dees and
Township Trustees Michael Hans, Dean Petry, and Fred Kerler
received complaints concerning the condition of
Plaintiffs' property. Doc. 20-1 at PageID 85, doc. 27 at
Page ID 162. As a result, the Trustees voted to initiate
proceedings to determine whether the property was being
maintained as a nuisance and whether abatement was necessary.
October 30, 2017, Defendant Dees, on behalf of the Trustees,
sent Plaintiffs a notice informing them that the Trustees
would hold a hearing on November 13, 2017 to determine
whether Plaintiffs were maintaining a public nuisance at or
on their property. Doc. 20-2 at PageID 89. The notice
informed Plaintiffs that, if the Trustees were to find the
property was a nuisance during the November 13 hearing, they
would enter the property to abate the nuisance should
Plaintiffs fail to do so themselves by a date
November 13, 2017, the Trustees held the nuisance
determination hearing, and concluded that Plaintiffs'
property was a nuisance, and agreed to give Plaintiffs 14
days to cleanup the property. Doc. 20-5 at PageID 109. On
November 14, 2017, Defendant Dees sent Plaintiffs a notice
informing them of the Trustees' nuisance finding and
ordering Plaintiffs to abate the nuisance within 14 days.
Doc. 20-6 at PageID 112. The allegations in Plaintiffs'
complaint --again, set forth in more detail below -- begin
with abatement efforts on the property on December 21, 2017.
Doc. 13 at PageID 44.
bring suit in this Court alleging that Defendants violated
their constitutional rights and asserting claims, inter
alia, under 42 U.S.C. § 1983. Doc. 13 at PageID 41.
prevail on a § 1983 claim, a plaintiff must establish
that a person acting under color of state law deprived the
plaintiff of a right secured by the Constitution or laws of
the United States.” Green v. Throckmorton, 681
F.3d 853, 859-60 (6th Cir. 2012) (citing Waters v. City
of Morristown, Tenn., 242 F.3d 353 (6th Cir. 2001)). To
state a claim under § 1983, Plaintiffs must allege
“(1) deprivation of a right secured by the federal
Constitution or laws of the United States, and (2) that ...