Mohat et al v. Mentor Public School District Board of Education et al

Filing 27

Memorandum Opinion and Order granting defendants' Motion for judgment on the pleadings (Related Doc # 14 ). Judge Donald C. Nugent(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM MOHAT, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
MENTOR EXEMPTED VILLAGE SCHOOL )
DISTRICT BOARD OF EDUCATION, et al., )
)
Defendants.
)
)
)

CASE NO.:

1:09 CV 688

JUDGE DONALD C. NUGENT

MEMORANDUM OPINION
AND ORDER

This matter is before the Court on Defendants’ Motion For Judgment on the Pleadings. (ECF
#14). Plaintiff filed a Response to Defendants’ Motion, and Defendants filed a Reply. (ECF #18,
21). The Court has carefully considered all of the pleadings, motions, briefing, and relevant law, and
finds that Defendants’ motion should be GRANTED.

STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure (“Rule”) 12(c) is subject to the
same standard as a motion brought under Fed. R. Civ. Pro. 12(b)(6). See Grindstaff v. Green, 133
F.3d 416, 421 (6th Cir. 1998); Scheid V. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 n.1 (6th
Cir. 1988). In evaluating a motion to dismiss, the court must construe the complaint in the light most
favorable to the plaintiff, accept its factual allegations as true, and draw reasonable inferences in
favor of the plaintiff. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). The court will
not, however, accept conclusions of law or unwarranted inferences cast in the form of factual
allegations. See Gregory v. Shelby County, 220 F.3d 433, 446 (6th Cir. 2000).
In order to survive a motion to dismiss, a complaint must provide the grounds of the
entitlement to relief, which requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007).
That is,“[f]actual allegations must be enough to raise a right to relief above the speculative level, on
the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id.
(internal citation omitted); see also Association of Cleveland Fire Fighters v. City of Cleveland, No.
06-3823, 2007 WL 2768285, at *2 (6th Cir. Sept. 25, 2007) (recognizing that the Supreme Court
“disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.
Ct. 99, 2 L. Ed.2d 80 (1957)”). Accordingly, the claims set forth in a complaint must be plausible,
rather than conceivable. See Twombly, 127 S. Ct. at 1974. Conclusory allegations, or legal
conclusions asserted in lieu of factual allegations are not sufficient. Bishop v. Lucent Tech, Inc., 520
F.3d 516, 519 (6th Cir. 2008).
On a motion brought under Rule 12(b)(6), the court’s inquiry is limited to the content of the

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complaint, although matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint may also be taken into account. See Amini v. Oberlin College, 259
F.3d 493, 502 (6th Cir. 2001). It is with this standard in mind that the instant Motion must be
decided. In evaluating a motion for dismissal under Rule 12(b)(6), the district court must “consider
the pleadings and affidavits in a light most favorable to the [non-moving party].” Jones v. City of
Carlisle, Ky., 3 F.3d. 945, 947 (6th Cir. 1993) (quoting Welsh v. Gibbs, 631 F.2d 436, 439 (6th Cir.
1980)). However, though construing the complaint in favor of the non-moving party, a trial court
will not accept conclusions of law or unwarranted inferences cast in the form of factual allegations.
See City of Heath, Ohio v. Ashland Oil, Inc., 834 F.Supp 971, 975 (S.D.Ohio 1993).
Pursuant to Fed. R. Civ. Pro. 12(d), if on a 12(c) motion, matters outside of the pleadings are
presented, and not excluded by the Court, the motion should be treated as a summary judgment
motion under Rule 56 and all parties shall be given the opportunity to present all pertinent material.
Defendants motion does present information not contained in the pleadings, although most of this
information is derived from public records, which are properly considered when deciding a motion
to dismiss. In so far as any of the information relied on in the Motion to Dismiss may be construed
as beyond the scope of a dismissal motion, the Court finds that all parties have had a full opportunity
to present pertinent material, and that the Plaintiffs have countered Defendants arguments with
relevant information. Therefore, the mandates of Fed. R. Civ. Pro. 12(d) have been satisfied.

PROCEDURAL HISTORY
The Plaintiffs filed this action in March of 2009 on their own behalf, and on behalf of the
Estate of Eric Mohat (their minor son). The Complaint seeks declaratory, injunctive, and

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monetary relief against the Mentor Public School District, Jacqueline A. Hoynes (Superintendent
of the Mentor Public School District), Joesph Spiccia (Principal of Mentor High School), and
Thomas Horvath (Teacher at Mentor High School) for alleged violations of their civil rights.
(ECF #1). The Complaint alleges that Eric Mohat, a seventeen year old student at Mentor High
School, was regularly bullied and harassed at school; that the school and, in particular, Mr.
Horvath knew about the bullying and harassment; that the school did nothing to intervene or
alleviate the problem; and, that as a result of the constant bullying and harassment, Eric Mohat
eventually committed suicide. Plaintiffs allege that as a result of these circumstances, they have
been deprived of their parental rights without due process; they were deprived of their right to
companionship; Eric was deprived of his right to life in violation of 42 U.S.C. §1983 (Monell
claim); the school violated Title IX, 20 U.S.C. §1681; the school was negligent (or grossly
negligent); and, the school’s actions or failures to act were wonton, reckless, and malicious.
Defendants contend that the Estate’s claims are time-barred and void, and that 42 U.S.C.
§1983 and Title IX do not support causes of action on behalf of his parents. Moreover,
Defendants argue that a school’s failure to recognize a student’s suicidal tendencies stemming
from bullying do not create liability under any of the Plaintiffs legal theories.
This lawsuit was filed on March 26, 2009. The Cuyahoga County Probate Court named
Janis Mohat personal representative of Eric Mohat’s estate on June 25, 2009.

There is no

dispute that Eric’s estate was not established until June of 2009 - after the filing of the lawsuit,
and after the running of the statute of limitations for the estate. Further, there is no dispute that
the estate was mistakenly opened in Cuyahoga County rather than Lake County, the county
where Eric resided at the time of his death. Plaintiffs admit that this was in error and they filed a

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supplement to their Response in Opposition with the Court indicating that Mrs. Mohat was duly
appointed as administrator of her son’s estate in Lake County on November 9, 2009.

ANALYSIS
A. Statute of Limitations for the Estate
Defendants contend that the Estate’s claims are time-barred and void. Plaintiffs contend
that under Ohio law, the formation of the estate, and the appointment of Mrs. Mohat as
administrator, relates back to the filing of the Complaint. Therefore, Plaintiffs argue that the
Complaint is not barred by the two year statute of limitations and the claims of the estate should
be allowed to go forward on the merits.
The Ohio Supreme Court has clearly held that a relative who has not been legally
appointed as a personal representative of the decedent’s estate lacks standing to pursue an action
on behalf of the estate to its conclusion. It is less clear, however, whether, under Ohio law,
someone may file suit on behalf of the estate as a sort of “place holder” to avoid being barred by
the statute of limitations, so long as an estate is formed and a personal representative is appointed
prior to the resolution of the action.
Both parties in the instant case cite to the Supreme Court of Ohio’s opinion in Ramsey v.
Neiman, 69 Ohio St.3d 508 (1994) in support of their position on this issue. The Court was
unanimous in its judgment in that case, but was split on its reasoning. The lead opinion, which
is not actually the majority opinion in this instance, held that “[a] cause of action in wrongful
death arising under R.C. Chapter 2125 must be brought in the name of a person appointed by a

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court to be the administrator, executor, or personal representative of the decedent’s estate.” The
lead opinion addressed the issue of whether a later appointed administrator could relate back to a
timely filing by someone who lacked standing to bring the action in order to save the case from
dismissal on statute of limitations grounds. The Court distinguished the case before it from other
cases that had allowed actions to proceed, indicating that there was no clear precedent that would
address the facts of the case before it, but refused to answer the specific question because the
question was based on a hypothetical situation not actually present in the case before it.
The concurring opinion, which actually constituted the majority opinion based on the
number of judges who signed on, did not find any requirement in R.C. 2125.02(A)(1) that the
person initiating a wrongful death lawsuit be a legally appointed representative of an estate.
Those Justices who joined in that opinion stated their belief that a personal representative “must
be court-appointed after the complaint has been filed, but before any judgment is entered or
settlement is reached.”

Ramsey v. Neiman, 69 Ohio St.3d 508 (concurring opinion). They also

indicated, without providing any reason or legal basis, that the summary judgment stage would
be an appropriate time to determine whether plaintiffs had or would obtain proper court
appointment after filing their complaints. Although this perspective was held by the slim
majority of the Court in 1994, the interpretations and guidelines set forth in that opinion were
dicta in the underlying case, and therefore are not controlling precedent for us to follow.
In trying to come to a determination on this issue, this Court has also reviewed Ohio’s
statute on wrongful death. Section 2125.02(A)(1) states that: “a civil action for wrongful death
shall be brought in the name of the personal representative of the decedent for the exclusive
benefit of the surviving spouse, the children, and the parents of the decedent... .” This would

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tend to support the argument that a wrongful death action cannot be brought by anyone other than
a legally appointed personal representative, making such an action void from its inception and
ineffective at tolling the statute of limitations.
Plaintiffs argue that Section 2125.02 (C), however, could be interpreted to lend some
support to the alternative argument. Section C states that “[a] personal representative appointed
in this state, with the consent of the court making the appointment and at any time before or after
the commencement of a civil action for wrongful death, may settle with the defendant the amount
to be paid.” Id. (Emphasis added.) They contend that the phrase “at any time before or after the
commencement of a civil action for wrongful death” in this section would be meaningless if, in
fact, an action brought by anyone other than the legally appointed personal representative were
void at the time of filing.1 This argument presumes that the phrase “before or after the
commencement of a civil action” refers to when the personal representative is appointed.
However, a more careful reading would indicate that the phrase relates only to the timing of the
settlement, and not to the timing of the representative’s appointment. In other words, it is more
reasonable to read the section as saying that a personal representative appointed in this state may
settle with the defendant any time before or after the commencement of a civil action for
wrongful death, if the court who appointed the representative consents to the settlement. The two
conditions or modifiers (timing and consent), are contained in a parenthetical that explains or
clarifies how the representative “may settle with the defendant.” These are not conditions

1

Justice Paul Pfeifer provided some support for this position in his concurring opinion in
Ramsey v. Neiman, 69 Ohio St.3d 508 (1994), stating that “R.C. § 2125.02 (C) mandates
that a personal representative in a wrongful death case be appointed by a court before the
case is settled.”
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relating to or modifying how or when the representative is to be appointed. Read in this way, the
statute does not address whether or when a duly appointed representative may be substituted for
an improper one, it simply assumes the existence of a duly appointed representative and gives
them the authority to settle claims with or without (before or after) filing a civil action for
wrongful death.
The lower courts in Ohio offer no additional clarity on the issue. The Ninth District has
held that R.C. §2125.02 is to be construed liberally, and that generally the appointment of an
administrator is deemed to relate back to the time of filing of a complaint. Stone v. Phillips, 1993
Ohio App. LEXIS 3989 (9th Dist. 1993). Conversely, the Fifth District has held that an action for
wrongful death must be brought in the name of the personal representative of the decedent, and if
it is not, neither Rule 17 nor the doctrine of relation back will apply to save the action from an
expired statute of limitations if the decedent’s representative is added after the statute has run.
Gottke v. Diebold, Inc., 1990 Ohio App. LEXIS 3564 (5th Dist. 1990).
The question was certified to the Ohio Supreme Court for consideration because this
Court originally found, with regard to this issue, (1) that there is no controlling precedent in the
decisions of the Ohio Supreme Court, (2) that there is contradictory authority in the lower courts
of Ohio, and, (3) that there is potentially contradictory language within the controlling Ohio
statute. The Ohio Supreme Court accepted a modified version of the question at issue for
consideration in August of 2010, (ECF #25), but in late April of 2011, it dismissed the case as
having been “improvidently accepted for review.” (ECF # 26).
This lawsuit was filed on March 26, 2009. The statute of limitations ran on March 29,
2009. The Cuyahoga County Probate Court purported to establish Eric’s estate and named Janis

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Mohat personal representative of Eric Mohat’s estate on June 25, 2009, well after the statute of
limitations had expired.

However, Cuyahoga County had no jurisdiction to open Eric’s estate

because, at the time of his death, he was a resident of Lake County. See Black v. Aristech
Chemical Co., No. 07CA3155, 2008 WL 5456383, *6 (Ohio App. 4 Dist. Dec. 23, 2008); O.R.C.
§ 2113.01. Therefore, there was no estate (valid or otherwise) in existence at the time the lawsuit
was filed, or at the time the statute of limitations expired. Further, the motion for judgment on
the pleadings was filed on September 16, 2009. Mrs. Mohat was not duly appointed as
administrator of a valid estate for her son until November 9, 2009. Therefore, there was no valid
estate in existence anytime prior to the filing of the dismissal motion in this action.
Although there is some support under Ohio law for allowing the appointment of a proper
administrator to relate back to the filing of a Complaint, in order to establish standing under
O.R.C. §2125.02, and to avoid issues with the statute of limitations, there is no indication that
such a relation back has been or should be allowed when there was no valid estate in existence at
the time the Complaint was filed. Further, as there is no case law in Ohio that is both clearly
applicable and binding on this Court, the Court must do its best to follow and give the intended
meaning to all of the terms of the applicable statute.
The applicable statute states that “a civil action for wrongful death shall be brought in the
name of the personal representative of the decedent for the exclusive benefit of the surviving
spouse, the children, and the parents of the decedent... .” O.R.C. § 2125.02(A)(1). As there was
no legally appointed personal representative in existence at the time, the requirements of O.R.C.
§2125.02(A)(1) were not satisfied and that Janis Mohat lacked standing to pursue the claims on
behalf of Eric or his estate. Further, because the estate was not formed and a personal

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representative was not legally appointed by a court with proper jurisdiction until more than
seven months after the statute of limitations expired, any claims espoused by the estate would
have been barred by the statute of limitations. Under section 2125.02(C), Mrs. Mohat, now that
she is duly appointed would have the authority to settle any still existing claims of the estate
without (prior to) filing a lawsuit, or after filing a lawsuit, if she was able to obtain a settlement
offer, but this section does not provide any basis for allowing her to avoid the statute of
limitations by relating back to the filing of a Complaint that was filed without any legal standing,
and in contradiction to the requirements of the governing statute. This Court, therefore, finds
that because the estate itself was not properly established and no duly appointed representative
existed prior to the expiration of the statute of limitations, the estate’s claims are barred under the
two year statute of limitations.

B. The Parents’ Constitutional Claims
In Count One, Eric’s Parents assert a claim, in their individual capacity, alleging that they
were deprived of their procedural and substantive due process rights under the Fourteenth
Amendment of the U.S. Constitution. In their response to Defendant’s Motion to Dismiss,
however, Plaintiffs concede that the Complaint does not support a claim for procedural due
process, and that the Court should consider only the substantive due process claim. Individual
claims for violations of substantive due process claims arising under the Fourteenth Amendment
are enforceable through 42 U.S.C. § 1983 (“Section 1983"). In order to recover under this
statute, a plaintiff must show that a person acting under the color of state law, deprived the
plaintiff of a federal right.

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Plaintiffs claim that the school, acting under the color of state law, deprived them of their
substantive due process right to familial association, which is a liberty interest under the due
process clause. Under the Due Process Clause of the Fourteenth Amendment, no state can
deprive “any person of life, liberty, or property, without due process of law. However, “nothing
in the language of the Due Process Clause itself requires the State to protect the life, liberty, and
property of its citizens against invasions by private actors.” DeShaney v. Winnebago County
Dept. Of Soc. Services, 489 U.S. 189, 195 (1989). Therefore, absent one of two exceptions, “it is
not a constitutional violation for a state actor to ... fail to rescue those in need,” and the state has
no constitutional duty to protect or rescue its citizens. Peete v. Metro. Gov’t, 486 F.3d 217, 223
(6th Cir. 2007); see also, DeShaney, 489 U.S. at 196, 201. Exceptions to this rule apply when (1)
the state has custody of the person in need or some other “special relationship” that heightens
their responsibility to care for a particular citizen; or (2) when a state actor acts affirmatively to
create or greatly increases the risk of harm to its citizens.
In this case, the Plaintiff’s Complaint does not allege that Eric was in state custody, or
that any special relationship existed between him the school that would have given the state a
heightened level of responsibility for his care and protection. Further, while it may seem that a
school, of all places, should provide a safe and supportive environment for the children in its
care, neither party has cited any relevant law that would support a finding that the school was in a
“special relationship” as that term is used in the relevant case law. Therefore, although it is
certainly reasonable for parents to expect that the school will do its best to protect their children
while they are under the school’s supervision, the law does not elevate this expectation to a
constitutional guarantee. The first exception to the general rule, therefore, does not apply.

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Under the state-created danger exception, liability may be assessed to the state if it
“cause[s] or greatly increase[s] the risk of harm to its citizens without due process of law through
its own affirmative acts.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998).
A state-created danger claim must establish three elements:
(1) an affirmative act by the state which either created or increased the risk that
the plaintiff would be exposed to an act of violence by a third party; (2) a special
danger to the plaintiff wherein the state’s actions placed the plaintiff specifically
at risk, as distinguished from a risk that affects the public at large; and (3) the state
knew or should have known that its actions specifically endangered the plaintiff.
Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir. 2006). The basis of this lawsuit is the allegation
that the school failed to intercede when other students were bullying Eric, and that, in turn, this
failure to act contributed to or caused his decision to commit suicide. In other words, the
Complaint, itself alleges a failure to act, not an affirmative action as the basis for its claims. Both
the U.S. Supreme Court and the Sixth Circuit have repeatedly held that a failure to act, even with
knowledge that a risk of harm may exist without state intervention, is not enough to confer
liability under the Fourteenth Amendment. See, e.g., DeShaney, 489 U.S. at 197; Patterson,
2008 WL 4858440; Jones v. Reynolds, 438 F.3d 895 (6th Cir. 2006); Schroder v. City of Fort
Thomas, 412 F.3d 724, 728-29 (6th Cir. 2005); Weeks v. Portage County Executive Offices, 235
F.3d 275 (6th Cir. 2000).
Plaintiffs have not made any allegations in their Complaint that would support a finding
that anyone acting under the color of state law committed an affirmative act that created or
increased the risk of harm to Eric. Further, as discussed above, although parents should be able
to expect that their children will be kept reasonably safe when under the school’s supervision, the
school had no constitutional duty to take affirmative action to protect Eric from harm imposed by

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other students through bullying and emotional and physical harassment, nor did it have a
constitutional duty to take affirmative action to prevent the ultimate harm he imposed upon
himself through his suicide. Consequently, however tragic and unfair this may seem, based on
the actual allegations set forth in the Complaint, and taking into consideration all of the relevant
case law, Plaintiffs have not established that the school’s failure to stop the bullying Eric
suffered, or its failure to prevent his ultimate suicide, constitute a violation of their substantive
due process rights under the Fourteenth Amendment to the U.S. Constitution.
In Count two, Eric’s parents raise a claim against the Board of the Mentor Public School
District, alleging failure to train in violation of its obligations to maintain lawful policies and
procedures.

This claim is also brought as a Section 1983 claim. In order to hold a Board liable,

the Plaintiffs must establish that the Plaintiffs have asserted the deprivation of a constitutional
right, and that the Board is responsible for the violation because of an official policy or custom.
Doe v. Claiborne County, Tenn. By and Through Claiborne County Bd. Of Educ., 103 F.3d 495,
505-506 (6th Cir. 1996)(citing Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992).
The Plaintiffs do not identify any constitutional right that the Board’s alleged actions
violated.

The Complaint asserts that the Board failed to train its employees on the proper

procedures to handle bullying, but as set forth above, the school’s failure to stop third parties
from harming Eric (in this case the bullies, and/or Eric, himself), although tragic and possibly
preventable, does not rise to the level of a constitutional violation. There is no constitutional
right to protection from the acts of third parties absent certain exceptions which do not exist in
this case. Further, Plaintiffs have not identified any constitutional rights that were violated
because of the alleged lack of policy on bullying, prior to Eric’s death. Therefore,the Complaint

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does not satisfy the requirements for a Section 1983 claim against the Board.
Plaintiffs also fail to satisfy the second requirement for this claim. The allegations
against the Board are centered on the Board’s alleged inaction with regard to training and/or
establishing proper policies to curb bullying in it’s schools. However, to state a municipal
liability claim for inaction, the Plaintiffs must show: (1) a clear and persistent pattern of violating
a constitutional right; (2) notice or constructive notice to the School Board; (3) the Board’s tacit
approval of the unconstitutional conduct amounting to an official policy of inaction; and, (4) that
the Board’s custom was the “moving force” or a direct causal link in the constitutional
deprivation. Doe, 103 F.3d at 508.
In this case, the Complaint does not allege that the Board had any prior notice or
constructive notice of the alleged harassment, or that the bullying would likely lead Eric to
commit suicide. Although there are allegations that one teacher was aware of the bullying, there
was no allegation that the Board had been notified that this was occurring, or that they would
have condoned the teacher’s alleged disregard for the situation. The Complaint also alleges that
certain administrators could have seen messages Eric posted about the bullying, but not that
anyone actually did see those posting, or that the Board was ever made aware of any potential
problem disclosed by the postings. Further there are allegations that other two other Mentor
students committed suicide “at least partially” due to bullying, but again there is no allegation
that the Board knew that these suicides were caused by the bullying, or that it its failure to take
added steps to prevent bullying rose to the level of tacit approval (by the Board) of the bullying
and its consequences. Finally, there is no allegation that any action by the Board could have
prevented Eric from being bullied, or ultimately from deciding to commit suicide, such that the

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alleged inaction could be considered the “moving force” or direct causal link for any alleged
constitutional deprivation. Certainly, a school Board should be expected to take action to address
problems that affect the safety and well-being of its students, when it is aware of such problems.
The Complaint, however, does not allege that the Board itself was ever made aware of the issues
directly affecting Eric. Therefore, under the relevant law, Plaintiffs’ Complaint does not state a
cause of action against the Board for a violation of Plaintiffs’ s substantive due process rights
under the Fourteenth Amendment of the U.S. Constitution. Count Two must be dismissed.
Plaintiffs agree that Eric’s parents cannot bring a claim under Title IX, as alleged in
Count Three. This claim, therefore, is also dismissed. The remaining claims by Plaintiffs
William and Janis Mohat are state law claims that are not dependent on any federal statutes or
federal Constitutional violations. Having determined that there are no federal claims remaining,
this Court declines to maintain supplemental jurisdiction over the state law claims. Count IV,
alleging negligence and/or gross negligence, and Count V, alleging malice, bad faith, and wonton
and reckless conduct are, therefore, dismissed without prejudice, and may, if appropriate, be refiled in state court.

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CONCLUSION
For all of the reasons set forth above, all claims brought on behalf of Eric Mohat’s estate
are dismissed as untimely under the appropriate statute of limitations. The federal claims
brought by Plaintiffs William and Janis Mohat in Counts One, Two and Three are dismissed with
prejudice for failure to state a claim upon which relief may be granted. Counts Four and Five,
which set forth state law claims for negligence and bad faith, are dismissed without prejudice and
may, if appropriate, be re-filed in state court. This case is, therefore, dismissed.

IT IS SO

ORDERED.

/s/ Donald C. Nugent
DONALD C. NUGENT
United States District Judge

DATED: May 31, 2011

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