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Howard v. Preble County Sheriff

United States District Court, S.D. Ohio, Western Division, Dayton

August 14, 2019

CORBIN HOWARD, et al., Plaintiffs,
v.
PREBLE COUNTY SHERIFF, et al., Defendants.

          Thomas M. Rose, District Judge

          REPORT AND RECOMMENDATION [1] 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 DOCKET

          MICHAEL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

         This is 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.

         The 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.

         On 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.[2]Defendants subsequently filed reply memoranda. Docs. 35, 26. The undersigned has carefully considered all of the foregoing, and Defendants' motions are ripe for decision.

         I.

         The 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.”

         To show 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 unadorned, the-defendant-unlawfully-harmed-me 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 level.” Id.

         In 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).

         A claim 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)).

         II.

         The 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 44.

         The 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. Id.

         On 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 specific.[3] Id.

         On 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.

         III.

         Plaintiffs 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.

         “To 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 ...


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