Carmichael v. Cleveland, City of et al

Filing 85

Memorandum Opinion and Order granting defendants' (excluding Serginia and Anthony Sowell) dispositive motions in their entirety (Related Docs # 24 , 25 , 29 , 54 , 55 , 56 , 57 ). For all of the reasons stated, the Complaint is dismissed with prejudice with respect to Counts I, II, IV, V, and VI. Count III is dismissed without prejudice. Judge Donald C. Nugent(C,KA)

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

CARMICHAEL,

Plaintiff,

v.
CITY OF CLEVELAND, et al.,

Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

CASE NO.:

1:11CV220

JUDGE DONALD C. NUGENT

MEMORANDUM OPINION
AND ORDER

Plaintiff Donnita Carmichael brings this suit individually and in her official capacity as
Administratrix of the Estate of Tonia Carmichael. Tonia Carmichael was murdered by Anthony
Sowell between November and December of 2008.
The Complaint names the following defendants:
(1)

The City of Cleveland;

(2)

Cleveland Police Detective Georgia Hussein;

(3)

Cleveland Police Detective Kristin Rayburn;

(4)

Cleveland Police Lieutenant Michael Baumiller;

(5)

Cleveland Police Sergeant Antoinette McMahon;

(6)

Unknown Detectives of the Cleveland Police Department (Defendants (2)(6) are sometimes referred to herein as the “Cleveland Police
Defendants”);

1

(7)

The City of Cleveland Health Department;

(8)

Martin Flask, City of Cleveland Public Safety Director (Defendants (1)-(8)
are collectively referred to herein as the “Cleveland Defendants”);

(9)

Assistant Cleveland Prosecutor Lorraine (erroneously named as “Loretta”)
Coyne;

(10)

The City of Warrensville Heights;

(11)

Warrensville Heights Police Detective McGlibra;

(12)

Warrensville Heights Police Lieutenant Jelenick;

(13)

Warrensville Heights Police Officer Stephanie Prince;

(14)

Warrensville Heights Police Sergeant Martinez (Defendants (10)-(14) are
referred to herein as the “Warrensville Heights Defendants”, and
Defendants (11)-(14) are sometimes referred to herein as the “Warrensville
Heights Police Defendants”);

(15)

Cuyahoga County Board of Commissioners;

(16)

Cuyahoga County Sheriff’s Department;

(17)

Gerald T. McFaul , Cuyahoga County Sheriff;

(18)

The Ohio Department of Rehabilitation and Corrections (“ODRC”);

(19)

Reginald Wilkinson, ODRC Director and Managing Officer;

(20)

Serginia Sowell (Anthony Sowell’s mother); and

(21)

Anthony Sowell.

Defendants, excluding Serginia and Anthony Sowell, have filed dispositive motions. The
motions are as follows:

(1)

Warrensville Heights Defendants’ Motion for Judgment on the Pleadings
(ECF #55);

2

(2)

Motion to Dismiss filed by Defendants City of Cleveland, Cleveland
Health Dept., and Martin Flask (ECF #57);

(3)

Defendants’ Motion to Dismiss Filed by Det. Georgia Hussein, Det.
Kristin Rayburn, Lt. Michael Baumiller, and Sgt. Antoinette McMahon
(ECF #56);

(4)

Defendant, Lorraine (“Loretta”) Coyne’s Motion to Dismiss (ECF #54);

(5)

Defendant, the Ohio Department of Rehabilitation and Correction’s,
Motion to Dismiss (ECF #29);

(6)

Motion to Dismiss Cuyahoga County Sheriff’s Department (ECF #24);
and

(7)

Motion to Dismiss Defendant Cuyahoga County Board of Commissioners
(ECF #25).

For the reasons stated herein, the dispositive motions are GRANTED in their entirety.
Plaintiff’s Complaint lacks a plausible claim against the moving Defendants under federal or
Ohio law in connection with the tragic murder of Tonia Carmichael.1 Counts I, II, IV, V, and VI
are therefore dismissed with prejudice.
Further, the sole remaining claim contained in Count III of the Complaint is dismissed
without prejudice. Count III is an Ohio state law claim for negligence/wrongful death against the
nonmoving defendants, Serginia and Anthony Sowell. Plaintiff may refile this claim in state
court if she so desires.
I. FACTUAL BACKGROUND
The following facts are alleged in the Complaint. For the purposes of Defendants’

1

It appears that Defendants Wilkinson and McFaul were not served with the Complaint.
They are entitled to dismissal under Federal Rule of Civil Procedure 4(m), in addition to the
separate grounds for dismissal discussed below.
3

dispositive motions, they are accepted as true.
In late 2009, the bodies of eleven African-American women, including Tonia Carmichael,
were found inside the Cleveland, Ohio home of Anthony Sowell. Tonia Carmichael had
disappeared on or about November 10, 2008.
Ms. Carmichael was a resident of Warrensville Heights, Ohio at all times relevant to the
Complaint. After her disappearance, Ms. Carmichael’s family members initially attempted to file
a missing person report with the Cleveland Division of Police, because the family believed that
Ms. Carmichael had frequented locations in the City of Cleveland. An officer with the Cleveland
Police declined to take a report for a non-resident.
Ms. Carmichael’s family went to the Warrensville Heights, Ohio Police Department to
make a missing person report 48 hours after her disappearance. The Warrensville Heights Police
Department refused to take the family’s missing person report, stating that Ms. Carmichael “will
show up after she finishes smoking crack.” On December 2, 2008, Ms. Carmichael’s family
members went back to the Warrensville Heights Police Department and successfully filed a
missing person report.
Ms. Carmichael’s body was discovered in Anthony Sowell’s home in or around October
or November, 2009. The Complaint alleges that Anthony Sowell kept Ms. Carmichael alive for a
period of time after her disappearance, and that she was not murdered until on or about
December 10, 2008.
In an unrelated incident, on December 8, 2008, Anthony Sowell was arrested by
Cleveland Police for allegedly punching, choking and attempting to remove a woman’s clothes.
After determining there was insufficient evidence to initiate a prosecution, the Assistant
4

Cleveland Prosecutor, Defendant Coyne, declined to charge Sowell. Mr. Sowell was released
within the required 24-48 hours.
Plaintiff claims that Cleveland Police Defendants Hussein, Rayburn, Baumiller, and
McMahon investigated the 2008 incident, and, among other things, obtained the victim’s medical
records and observed physical injuries. Plaintiff states she believes that Cleveland Police
Defendants either failed to research Mr. Sowell’s criminal history, or completely ignored that
history, and should have discovered material information to provide to the prosecutor.
Plaintiff further alleges that Anthony Sowell was released in 2008 as a result of an alleged
Cleveland practice she terms “straight release and indict later.” Plaintiff claims that, under the
“straight release” policy, “because of lack of resources, overcrowded jails, lack of manpower,
incompetency, or indifference, [...] the investigators and City prosecutor’s Office, often release
suspects on straight release, with the idea that down the road if more information is obtained the
case could be presented to the Grand Jury for a formal indictment. Unfortunately, this practice
resulted in the release of Anthony Sowell.” Plaintiff alleges that the act of releasing Mr. Sowell
on December 8, 2008 was “reckless, wanton and willful.”
Plaintiff claims that Defendant the ODRC allowed Anthony Sowell to be released from
confinement without rehabilitative treatment presumably being offered during his incarceration.
Plaintiff does not allege any facts to indicate that Anthony Sowell qualified for any rehabilitative
program.
Plaintiff further states that Defendants the Cuyahoga County Sheriff’s Department and
the Cuyahoga County Board of Commissioners failed to ensure that Mr. Sowell was properly
registered and monitored as a sex offender. According to Plaintiff, these Defendants failed to
5

enforce the community notification provisions for Tier III sex offenders contained in Ohio
Revised Code (“R.C.”) § 2950.11, as amended by the Adam Walsh Act.
II. LEGAL STANDARDS
The moving Defendants bring their dispositive motions under Federal Rules of Civil
Procedure:
(1)

The Cleveland Defendants; Prosecutor Coyne; Cuyahoga
County Board of Commissioners; Cuyahoga County
Sheriff’s Department;

(2)

12(c):

The Warrensville Heights Defendants; and

(3)

A.

12(b)(6):

12(b)(1):

ODRC.

FRCP 12(b)(6) and 12(c)

Decisions granting judgment on the pleadings pursuant to Rule 12(c) are reviewed under
the same standard applied to motions to dismiss under Rule 12(b)(6). See Kottmeyer v. Maas,
436 F.3d 684, 689 (6th Cir. 2006). The Court construes the complaint in a light most favorable
to the plaintiff, accepts all factual allegations as true, and determines whether the complaint
states a plausible claim for relief. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir.2010) (citing
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009)).
The Sixth Circuit has applied the now familiar pleading requirements in Twombly and
Iqbal to both Rule 12(b)(6) and Rule 12(c) motions, and held that plaintiffs must “ ‘plead ...
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’ ” Id. (quoting Iqbal, 129 S.Ct. at 1949); see New Albany Tractor,
Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1049–51 (6th Cir.2011). Merely pleading facts

6

that are consistent with a defendant's liability or that permit the court to infer misconduct is
insufficient. Iqbal, 129 S.Ct. at 1949–50; see Courie v. Alcoa Wheel & Forged Prods., 577 F.3d
625, 629 (6th Cir. 2009). Additionally, when considering a Rule 12(b)(6) or 12(c) motion, the
Court “need not accept as true legal conclusions or unwarranted factual inferences.” Kottmyer,
436 F.3d at 689.
The plausibility pleading standard set forth in Twombly and Iqbal requires a plaintiff to
have pled enough facts to state a claim for relief that is plausible on its face. Iqbal, 129 S.Ct. at
1950. A complaint that allows the court to infer only a “mere possibility of misconduct” is
insufficient to “show” that the complainant is entitled to relief and fails to meet the pleading
requirements of Rule 8. Id.
B.

FRCP 12(b)(1)

When a court’s subject matter jurisdiction is challenged under Federal Rule of Civil
Procedure 12(b)(1), the party seeking to invoke jurisdiction bears the burden of proof. McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Rogers v. Stratton Indus., Inc.,
798 F.2d 913, 915 (6th Cir. 1986). A 12(b)(1) motion to dismiss may constitute either a facial
attack or a factual attack. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Facial
attacks – such as the one at issue in this case – question the sufficiency of the jurisdictional
allegations in the complaint. Id. Thus, those allegations must be taken as true and construed in
the light most favorable to the nonmoving party. Id. Factual attacks, however, challenge the
actual fact of the court’s jurisdiction. Id. In such cases, the court is free to weigh any evidence
properly before it to satisfy itself as to the existence of its power to hear the case. Id. See also
Ohio Nat’l Life Ins. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
7

III. ANALYSIS
Plaintiff’s Complaint contains six counts. Each count is dismissed for the reasons stated
herein.
Counts I and II allege violations of 42 U.S.C. § 1981 and 42 U.S.C. § 1983, respectively.
Counts I and II name The City of Cleveland and The City of Warrensville Heights only, alleging,
among other things, that these Defendants committed acts of racial and national origin
discrimination by not taking a missing person report and making a prompt investigation of Tonia
Carmichael’s disappearance, and not promptly “investigating claims of missing AfricanAmericans, while making a prompt investigations [sic] for white or Asian individuals, despite
having official policies and procedures to investigate unusual or unaccountable absences.”2
Count III is an Ohio state law claim for negligence/wrongful death against nonmoving
defendants Serginia and Anthony Sowell. Count III does not allege any federal claims.
Like much of the Complaint, Count IV is confusing and difficult to parse. Plaintiff
apparently brings Count IV against all Defendants excluding Serginia and Anthony Sowell.
Count IV alleges a claim for “Negligence/Wrongful Death” for: (1) failing to prevent the actions
of Anthony Sowell; (2) “allowing Anthony Sowell to be released from confinement without
rehabilitative treatment reside in the premises” [sic]; (3) general negligence; and (4) failure to
provide notice to neighbors of a Tier III sex offenders residence in the area pursuant to R.C. §
2950.11, as amended by the Adam Walsh Act.

2

Although Plaintiff’s briefs in opposition to Defendants’ dispositive motions insinuate
that Counts I and II were brought against defendants in addition to the City of Cleveland and the
City of Warrensville Heights, the Complaint fails to name any other defendants in Counts I and
Counts II.
8

Although Count V discusses only the alleged policies and practices of The City of
Cleveland, the Cuyahoga County Sheriff’s Office, and Sheriff McFaul, Plaintiff apparently brings
Count V against all Defendants, excluding Anthony and Serginia Sowell. Count V alleges a
claim for “Negligence/Wrongful Death” allegedly arising from: (1) The City of Cleveland’s
“policy and practice which encourages the “straight release,, of dangerous suspects who commit
crimes and who should be subject to bail and prosecuted, thereby neglecting the safety of the
community’ [sic]”; (2) the policy and procedure of “Defendant Cuyahoga County” of not
regularly checking on sex offenders and their activities; (3) the “grossly negligent, reckless,
willful and wanton” enforcement of the “sexually oriented offender and related statutes” by “the
county and the sheriff”; (4) failure on the part of the “sheriff” to create or enforce adequate
policies “delineating the enforcement of the statute R.C. sec 2950.11 as amended by the AWA
provides that the sheriff must provide to neighbors listed in the statute a notice of Tier III
offender’s residence in the area [sic]”; (5) the Sheriff’s failure to ensure that Anthony Sowell
“registered with the Sheriff, identified his residence, identified his license plates, identified his
email accounts, identified his work location, and identified the type of work he was engaged
[sic].”
Count VI is a claim for injunctive relief. In Count VI, Plaintiff requests that “the city,
county and state Defendants provide counseling and to the survivor’s [sic] that are next of kin to
Tonia Carmichael, the deceased.”
In addition to the injunctive relief sought in County VI, Plaintiff seeks compensatory and
punitive damages totaling $42,000,000.00.
For the reasons stated below, Counts I, II, IV, V and VI fail to state a plausible claim
9

against any of the moving Defendants. The moving Defendants are entitled to dismissal of these
Counts with prejudice.
The only remaining Count – Count III – contains only a state law claim. This claim is
dismissed without prejudice subject to refiling in state court.
A.

Defendant Cuyahoga County Sheriff’s Department

Defendant the Cuyahoga County Sheriff’s Department is entitled to dismissal under Rule
12(b)(6) because, under Ohio law, a county sheriff’s department is not a legal entity subject to
suit. Petty v. County of Franklin, Ohio, 478 F.3d 341, 347 (6th Cir. 2007); Abbott v. Mahoning
Cty. Sheriff’s Dept., 2011 WL 108903 at *1 (N.D. Ohio Jan. 12, 2011). Indeed, the law is clear
that a plaintiff cannot assert a claim against an Ohio county sheriff’s department under state tort
law (or under 42 U.S.C. § 1983) because a sheriff’s department is not sui juris under Ohio law.
Id. Plaintiff’s briefing does argue the contrary, or even address the issue.
Because a county sheriff’s office is not sui juris, Plaintiff’s claims against the Cuyahoga
County Sheriff’s Department are insufficient as a matter of law. Dismissal under Rule 12(b)(6)
is appropriate.
B.

Defendant Cuyahoga County Board of Commissioners

Defendant Cuyahoga County Board of Commissioners claims entitlement to dismissal
under Rule 12(b)(6) due to the protection of political subdivision immunity established in R.C. §
2744.02. Plaintiff argues that dismissal is unwarranted because: (1) she is entitled to do
discovery, and (2) her allegations fall within one of the exceptions to immunity under R.C. §
2744.02(B).
First, Plaintiff’s argument for additional discovery fails. Plaintiff admits that the
10

“determination of whether governmental immunity under R.C. 2744.02 applies is a question of
law to be decided by the court.” (ECF #69, p. 3.) Thus, the question of whether political
subdivision immunity applies does not require further discovery.
Second, Plaintiff’s argument that an exception to immunity under R.C. § 2744.02(B)
applies lacks merit. In particular, Plaintiff argues that activity she claims Defendant negligently
performed – “[negligent] enforcement of law in reference to registered sexual offenders” – is a
“proprietary function”, an exception to the general grant of political subdivision immunity under
R.C. § 2744.02.
In Ohio, political subdivisions performing governmental functions are protected from tort
liability in most cases by the broad immunities and defenses established by the General
Assembly in the Political Subdivision Tort Liability Act, R.C. Chapter 2744. R.C. § 2744.02;
Chesher v. Neyer, 477 F.3d 784, 796 (6th Cir. 2008); Lambert v. Clancy, 125 Ohio St.3d 455,
457, 1009-Ohio-1250, ¶¶ 7-9. The parties do not dispute that Cuyahoga County and the
Cuyahoga County Board of Commissioners fall within the definition of “political subdivision”
set out in Chapter 2744. R.C. § 2744.01(F); Maddox v. E. Cleveland, 2009 WL 4406124 (Ohio
Ap. 8 Dist, 2009-Ohio-6308).
A three-tiered analysis applies to determine whether an Ohio political subdivision is
immune from liability under Chapter 2744. Lausin ex rel. Lausin v. Bishko, 727 F. Supp. 2d
610, 630-31 (N.D. Ohio 2010). The first tier is the general grant of immunity set out in R.C. §
2744.02(A)(1), which provides that, with certain exceptions, local governmental entities are
immune from tort liability. It states:
For the purposes of this chapter, the functions of political
11

subdivisions are hereby classified as government functions and
proprietary functions. Except as provided in division (B) of this
section, a political subdivision is not liable in damages in a civil
action for injury, death, or loss to person or property allegedly
caused by any act or omission of the political subdivision or an
employee of the political subdivision in connection with a
governmental or proprietary function.
This general grant of immunity applies regardless of whether the injury or loss is
allegedly the result of negligence, an intentional tort, or some intermediate level of misconduct
such as recklessness, willfulness, or wantonness. EJS Properties, LLC v. City of Toledo, 651 F.
Supp. 2d 743, 759 (N.D. Ohio 2009); Lee v. City of Cleveland (2003), 151 Ohio App. 3d 581;
Gabrey v. McDonald Village Police Dept. (1994), 70 Ohio St.3d 351, 356; Rogers v.
Youngstown (1991), 61 Ohio St.3d 205, 211. The general grant of immunity applies to protect
political subdivisions from liability in wrongful death actions. Stephens, 729 F. Supp. 2d at 964;
O’Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574; Ridley v. Hamilton Cty. Bd. of
Mental Retardation, 102 Ohio St.3d 230, 2004-Ohio-2629.
In addition to setting out the basic rule of immunity, R.C. § 2744.02(A)(1) refers to the
two classifications of the functions of political subdivisions: governmental functions and
proprietary functions. The law is clear that provision or nonprovision of police services or
protection and enforcement of the law are governmental functions, not proprietary functions as
Plaintiff advocates. R.C. §§ 2744.01(C)(1)(c), (C)(2)(a); Stephens v. City of Akron, 729 F. Supp.
2d 945, 964 (N.D. Ohio 2010); Beckett v. Ford, 613 F. Supp. 2d 970, 983 (N.D. Ohio 2009);
Haris v. Sutton, 183 Ohio Spp. 3d 616, 622, 2009-Ohio-4033; Buoscio v. McFaul (Aug. 2, 2001),
Cuya. App. 78758, 2001 WL 898426, Ohio App. 8 Dist; Williams v. Franklin Cty., Ohio
Sheriff’s Dept. (1992), 84 Ohio App. 3d 826; Twine v. Franklin Cty Sheriff’s Dept. (1990), 68
12

Ohio App. 3d 51.
Plaintiff’s claims against the Defendant Cuyahoga County Board of Commissioners
apparently are based upon allegations of actions or inactions of Cuyahoga County, through its
officials and employees, with respect to the monitoring of Anthony Sowell as a registered sex
offender. These claims are based upon Cuyahoga County’s provision or nonprovision of police
services or protection, and/or enforcement of the law, and therefore they fall within the general
rule of immunity set out in R.C. § 2744.02(A)(1) for political subdivisions engaged in
governmental functions.
Because Plaintiff’s allegations against Defendant Cuyahoga County Board of
Commissioners fall within the general grant of political subdivision immunity, the next step is to
determine whether any of the exceptions to that immunity might apply. Lambert, 125 Ohio St.
3d at 233. Plaintiff claims that, in this second tier of the analysis, one of five exceptions set out
in R.C. § 2744.02(B) applies. Specifically, Plaintiff contends that the exception contained in
R.C. § 2744.02(B)(2) for “negligence with respect to performing a proprietary function.”
Plaintiff’s argument for application of the exception for negligence in the performance of
proprietary functions is baseless. As discussed, the provision or nonprovision of police services
and protection, and enforcement of the laws, are unequivocally governmental functions. No
amount of tortured analysis could construe the actions at issue here to be anything but
governmental functions. The definition of “proprietary function” in R.C. § 2744.01(G)
specifically excludes governmental functions. Thus, the exception in R.C. § 2744.02(B) for
negligence respecting proprietary functions is inapplicable. Plaintiff does not argue that any
other exceptions apply.
13

Because none of the R.C. § 2744.02(B) exceptions apply to Plaintiff’s claims against
Defendant Cuyahoga County Board of Commissioners, the general rule of immunity set out in
R.C. § 2744.02(A)(1) is applicable. The Court need not reach the third tier of the immunity
analysis: consideration of whether immunity is reinstated by application of the specific defenses
and immunities set out in R.C. § 2744.03. Lambert, 125 Ohio St. 3d at 233-34.
For these reasons, Plaintiff’s Complaint is facially deficient and fails to state a claim upon
which relief may be granted. Defendant the Cuyahoga County Board of Commissioners is
dismissed.
C.

Defendant ODRC

Plaintiff alleges that ODRC was jointly negligent and responsible in the “cause and
wrongful death of Tonia Carmichael.” Specifically, Plaintiff alleges that ODRC allowed
Anthony Sowell to be released from confinement without rehabilitative treatment being offered
during his incarceration.
Defendant ODRC brings a facial attack on the Court’s subject matter jurisdiction under
Rule 12(b)(1). Specifically, ODRC claims Eleventh Amendment immunity as an arm of the
State of Ohio.
The Eleventh Amendment to the United States Constitution provides:
The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by citizens of another state, or by
citizens or subjects of any foreign state.
Courts have held that the Eleventh Amendment prohibits the federal courts from granting
money judgments or injunctive relief against state agencies. Ford Motor Co. v. Dept. of

14

Treasury, 323 U.S. 459 (1945); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89
(1984). The Sixth Circuit has specifically held that suits against the “state” are prohibited in
federal court whether for injunctive, declaratory or monetary relief. Lawson v. Shelby County,
211 F.3d 335 (6th Cir. 2000).
Here, Plaintiff seeks monetary and injunctive relief in a federal court directly against
ODRC, a state agency. ODRC has not consented to suit in this Court. Therefore, this action is
barred by the Eleventh Amendment to the United States Constitution. The action is dismissed
for lack of subject-matter jurisdiction.
Further, the Complaint does not state a claim against ODRC under 42 U.S.C. § 1983.
The Complaint very clearly limits its allegations of § 1983 violations to Defendants the City of
Cleveland and the City of Warrensville Heights. Even assuming that § 1983 violations were
alleged against ODRC, however, the allegations cannot survive. As a state agency, ODRC is not
a “person” that can be held liable for money damages under § 1983. Will v. Michigan Dept. of
State Police, 491 U.S. 58 (1989).
Moreover, even supposing that the ODRC could be sued for money damages under §
1983, the Complaint lacks a plausible constitutional claim against ODRC. Anthony Sowell
applied for and was denied entrance into a sexual offender program years prior to his release
from prison in 2004. He was denied admittance because he denied and refused to accept
responsibility for committing the offense. The Complaint lacks any allegation that Mr. Sowell
qualified for any rehabilitative treatment. And even if Mr. Sowell had qualified for some
rehabilitative program being offered, Mr. Sowell had no constitutional right to treatment, as is
required for a claim under § 1983. See Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001)
15

(a constitutional violation is required for a § 1983 claim); Sigley v. City of Parma Heights, 437
F.3d 527, 544 (6th Cir. 2006) (same). Certainly Tonia Carmichael had no constitutional right for
Mr. Sowell to receive treatment; if this is Plaintiff’s intended argument, she provides no support
for her claim.
Finally, if disbelief is suspended and it is assumed that Mr. Sowell had a constitutional
right to sexual offender treatment, Plaintiff here may not sue under § 1983 on behalf of Tonia
Carmichael to vindicate a constitutional right belonging to Mr. Sowell. A § 1983 cause of action
is entirely personal to the direct victim of the alleged constitutional tort. Jaco v. Bloechle, 739
F.2d 239, 241 (6th Cir. 1984); Claybrook v. Birchwell, 199 F.3d 350, 357 (6th Cir. 2000). Only
the purported victim of the constitutional tort may prosecute a § 1983 claim. Id. No cause of
action lies under § 1983 for collateral injuries allegedly suffered personally by another. Id. For
this reason, and all of the reasons discussed, Plaintiff’s claims against ODRC are dismissed.
D.

Defendant Coyne

Plaintiff seeks to hold Defendant Prosecutor Coyne liable for her alleged failure to
investigate the 2008 case against Anthony Sowell, and her decision not to prosecute that case.
Plaintiff’s claim fails. Defendant Coyne is entitled to absolute prosecutorial immunity for the
alleged conduct.
“[A] prosecutor enjoys absolute immunity from § 1983 suits for damages when he acts
within the scope of his prosecutorial duties.” Imbler v. Pachtman, 424 U.S. 409, 420 (1976).
Absolute immunity for prosecutorial functions applies equally to state law tort claims. R.C. §
2744.03(A)(7) (preserving common law immunity for prosecutors).
Absolute immunity is available to prosecutors because the Court fears that exposing a
16

prosecutor to lawsuits growing out of his official activity would divert “his energy and attention
... from the pressing duty of enforcing the criminal law.” Imbler, 424 U.S. at 420. Absolute
immunity allows a prosecutor to exercise his independent judgment in “deciding which suits to
bring and in conducting them in court” based on his duty to the public rather than on a fear of
potential liability in a suit for damages. Id. at 424-25. See also Joseph v. Patterson, 795 F.2d
549, 553-55 (6th Cir.1986), cert. denied, 481 U.S. 1023 (1987) (discussing Imbler).
The Imbler rule affords prosecutors absolute immunity from potential lawsuits when the
prosecutor's “challenged activities [were] an ‘integral part of the judicial process.’ ” Imbler, 424
U.S. at 430. Absolute immunity protects a prosecutor from exposure to lawsuits, not just
liability; “[t]he rationale for granting absolute immunity is ‘as much to protect the relevant
persons from a trial on their actions as it is to protect them from the outcome of the trial.’ ”
McSurely v. McClellan, 697 F.2d 309, 315 (D.C. Cir.1982) (quoting Briggs v. Goodwin, 569
F.2d 10, 59 (D.C. Cir.1977) (Wilkey, J., concurring), cert. denied, 437 U.S. 904 (1978)).
The Imbler Court, however, noted that the prosecutor's responsibilities could “cast him in
the role of an administrator or investigative officer rather than that of advocate.” Id. at 430-31 &
n. 33. The Court suggested that a prosecutor's absolute immunity would extend only to his
actions as an officer of the court, in the course of the judicial process, and not to his actions as a
mere administrator or investigator. Id. at 431 n. 33.
To determine when the prosecutor is entitled to absolute immunity, the Supreme Court
has adopted what is called a “functional approach.” It examines “the nature of the functions with
which a particular officer or class of officials has been lawfully entrusted, and we seek to
evaluate the effect that exposure to particular forms of liability would likely have on the
17

appropriate exercise of those functions.” Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 542
(1988).3
“Functional analysis” focuses on the role of the prosecutor at the time he engages in the
challenged conduct. “Absolute prosecutorial immunity is not defeated by a showing that the
prosecutor acted wrongfully or even maliciously, or because the criminal defendant ultimately
prevailed on appeal or in a habeas corpus proceeding.” M. Schwartz & J. Kirklin, Section 1983
Litigation: Claims, Defenses, and Fees § 7.8 (1986). In Imbler, for example, the prosecutor was
absolutely immune even for allegedly knowingly using perjured testimony and suppressing
exculpatory material at trial. Imbler, 424 U.S. at 427 n. 27. In comparison, in Mitchell v.
Forsyth, 472 U.S. 511, 524, the Attorney General was deemed by a plurality not to be “acting in
a prosecutorial capacity.” Even if not entitled to absolute immunity, a prosecuting attorney may
claim qualified immunity.
To distinguish between conduct entitled to absolute immunity and conduct entitled to
qualified immunity, “the critical inquiry is how closely related is the prosecutor's challenged
activity to his role as an advocate ultimately associated with the judicial phase of the criminal
process.” Joseph v. Patterson, 795 F.2d 549, 554 (6th Cir.1986). The Sixth Circuit has referred
to conduct entitled to absolute immunity as “quasi-judicial” or “advocatory.” Id.
3

In Forrester, the Court faced questions of judicial immunity but also commented upon
its extension to prosecutors, stating “[t]he nature of adjudicative function requires a judge
frequently to disappoint some of the most intense and ungovernable desires that people can
have.... [T]his is the principal characteristic that adjudication has in common with legislation and
with criminal prosecution, which are the two other areas in which absolute immunity has been
most generously been provided.” Id., 108 S.Ct. at 544. Forrester cautions that absolute
immunity is “strong medicine” which is invoked only in appropriate cases where there is danger
of being deterred from or chilled in the exercise of what is essentially a judicial function. Id., 108
S.Ct. at 545.
18

Plaintiff here challenges Defendant Coyne’s failure to investigate the facts of Anthony
Sowell’s 2008 case, and her decision to not bring charges against Mr. Sowell. Prosecutor
Coyne’s alleged actions spring from her role as a quasi-judicial officer. It is clear that the
decision to investigate criminal charges is “quasi-judicial” or “advocatory,” and thus is protected
by absolute immunity. Grant v. Hollenbach, 870 F.2d 1135, 1138-39 (6th Cir. 1989). Moreover,
the decision to prosecute, “even if malicious and founded in bad faith, is unquestionably
advocatory and at the heart of the holding in Imbler.” Joseph, 795 F.2d at 557 (citing Imbler, 424
U.S. at 424). Despite the allegations in Plaintiff’s Complaint, Prosecutor Coyne is absolutely
immune from both suit and liability concerning the alleged failure to investigate Mr. Sowell’s
2008 case, and the decision not to prosecute that case.
E.

The Warrensville Heights Defendants
1.

Federal Claims
a.

42 U.S.C. § 1981

Plaintiff brings claims under 42 U.S.C.§ 1981 alleging that actions of the City of
Warrensville Heights “resulted in the deprivation of the civil rights of Tonia Carmichael an
African American, as a direct result of clear racially motivated discrimination.” (Compl. ¶ 39.)
Under § 1981(a), “all persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence
and to the full and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens. . .”
Of the Warrensville Defendants, only the City of Warrensville Heights is named in the
Complaint in connection with Plaintiff’s § 1981 claim. Even assuming that Plaintiff intended to
19

bring this claim against the remaining Warrensville Heights Defendants, Plaintiff has not
properly pled a claim under § 1981, for at least two reasons. First, the Supreme Court held in
Jett v. Dallas Indep. Sch. Dist. that “[Section] 1981's implicit cause of action does not extend to
suits brought against state actors.” Arendale v. City of Memphis, 519 F.3d 587, 594 (6th Cir.
2008) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)). Arendale establishes Sixth
Circuit jurisprudence that despite the 1991 amendment to subsection (c) of § 1981 (which some
circuits have interpreted as overruling Jett) the amended language does not create a new private
cause of action against political subdivisions in addition to § 1983.4 Arendale, 519 F.3d at 584,
596, 599. Thus, the § 1981 claim against the Warrensville Heights Defendants fails.
Second, Plaintiff’s § 1981 claim is not properly pled because Plaintiff has failed to assert
any facts beyond a “formulaic recitation of the elements of a cause of action” that she was treated
differently from other, similarly situated missing persons because of race. Iqbal, 129 S.Ct. at
1949. To state a claim under § 1981, the plaintiff must allege that she was treated differently
because of her race. Davey v. Tomlinson, 627 F. Supp. 1458 (E.D. Mich. 1986) (citing Long v.
Ford Motor Co., 496 F.2d 500 (6th Cir. 1974)). To state such a claim, the plaintiff must allege:
(1)

membership in a racial minority;

(2)

that Defendants intended to discriminate on the basis of race; and

(3)

discrimination concerning one of the activities enumerated in §
1981.

King v. City of Eastpointe, 86 Fed. Appx. 790 (6th Cir. 2003). These allegations should be
supported by specific acts, practices, or policies which resulted in the alleged discrimination. Id.
4

Section 1981(c) states, “The rights protected by this section are protected against
impairment by nongovernmental discrimination and impairment under color of State law.”
20

A claim that an official, acting under the color of law, intentionally refused to perform an act,
even a discretionary one, solely on the basis of a complainant’s race states a cause of action
under 42 U.S.C. § 1981. Jafree v. Barber, 689 F.2d 640 (7th Cir. 1982).
The Complaint here lacks any facts related to the alleged race discrimination. Instead, the
factual allegations indicate that, if anything, Tonia Carmichael was discriminated against based
upon her status as a known drug user. This is insufficient to maintain a claim under 42 U.S.C. §
1981, which requires an allegation of racial animus. Consequently, Plaintiff’s 42 U.S.C. § 1983
claim fails as a matter of law.
b.

42 U.S.C. § 1983

Plaintiff also has asserted violations of 42 U.S.C. § 1983 against the City of Warrensville
Heights. For the purposes of this Order, the Court assumes that Plaintiff also meant to bring a §
1983 claim against each of the remaining Warrensville Heights Defendants.
Section 1983 creates a remedy for those denied the “rights, privileges or immunities
secured by the Constitution and laws.” Johnson v. City of Detroit, 446 F.3d 614, 619 (6th Cir.
2009). To state a claim under § 1983, Plaintiff must establish two things: (1) Tonia Carmichael
was deprived of a right secured by the Constitution or laws of the United States, and (2) the
deprivation was caused by a person acting under color of state law. Redding v. St. Edward, 241
F.3d 530, 532 (6th Cir. 2001).
Plaintiff’s Complaint does not clearly specify the constitutional right(s) that Plaintiff
alleges were violated. It appears, however, that Plaintiff attempts to assert that the Warrensville
Heights Defendants violated Tonia Carmichael’s rights to substantive due process and equal
protection, as secured by the Fourteenth Constitutional Amendment.
21

i.

Substantive Due Process

Plaintiff has failed to allege facts to plausibly state a claim for violation of Ms.
Carmichael’s substantive due process rights. The Due Process Clause of the Fourteenth
Amendment states that “no State shall . . . deprive any person of life, liberty or property without
the due process of law.” The Supreme Court has held that “the Due Process Clauses generally
confer no affirmative right to governmental aid, even where such aid may be necessary to secure
life, liberty, or property interests of which the government itself may not deprive the individual.”
DeShaney v. Winnebago Cty. Dept. of Social Svs., 489 U.S. 189, 196 (1989). Accordingly, it is
clear that the Warrensville Heights Defendants did not have a constitutional duty to prevent
Anthony Sowell from murdering Tonia Carmichael.
There are limited exceptions to the DeShaney rule, none of which apply here. First, there
is no “special relationship” between the governmental entity (Warrensville Heights) and the
individual citizen (Tonia Carmichael), because Tonia Carmichael was never taken into custody,
as is required for a special relationship to arise. Id. at 199-200.
Second, Warrensville Heights did not create a “special danger” which could give rise to
liability. The victim faces a “special danger” when the state’s actions place the victim
specifically at risk, as distinguished from a risk to the public at large. To prevail under this
theory, the plaintiff must prove: (1) the plaintiff was a member of a specifically defined group;
(2) the defendant’s conduct put the plaintiff (and other members of the group) at substantial risk
of immediate and proximate harm; (3) the risk was known and obvious; and (4) the defendant
acted recklessly in conscious disregard of that risk. Kallstrom v. City of Columbus, 136 F.3d
1055 (6th Cir. 1998). Here, Plaintiff pled no facts to establish that the Warrensville Heights
22

Defendants acted to put Tonia Carmichael specifically at risk as opposed to the public at large,
that Ms. Carmichael belonged to a specifically defined group, or that the danger posed by
Anthony Sowell was known and obvious.
The Sixth Circuit considered a strikingly similar case in Gazette v. City of Pontiac, 41
F.3d 1061 (6th Cir. 1994), and held that the government and its employees did not violate the
decedent’s constitutional rights. In Gazette, a woman was abducted from a car wash. She was
imprisoned in the trunk of her car and eventually died of starvation, thirst, and poisoning from
having attempted to drink windshield wiper fluid. The woman’s family went to the police station
to file a missing person report. The police department, which was familiar with the woman and
knew her to be an alcoholic, refused to take a missing person report. The police told the family
that the woman would show up when she was “finished binging” The police later lied to the
family and told them they had conducted an investigation when they did not do anything. The
Sixth Circuit affirmed the trial court’s dismissal of a lawsuit under Rule 12(b)(6). Citing
DeShaney, the Sixth Circuit held that the defendants’ conduct did not violate the woman’s right
to substantive due process. The court held that, at most, the defendants failed to rescue the
woman, but did not create the danger she encountered. Id.
As in Gazette, Plaintiff here has failed to show that the Warrensville Heights Defendants
placed Tonia Carmichael in “special danger.” Although the decedent’s death is truly horrific and
a tragedy, the danger she faced was created by the actions of Anthony Sowell, a private actor, and
not the Warrensville Heights Defendants. Under DeShaney and its progeny, the Complaint fails
to state a plausible claim against the Warrensville Heights Defendants for violation of
substantive due process.
23

ii.

Equal Protection

Plaintiff also has failed to allege a Fourteenth Amendment equal protection violation.
The Equal Protection Clause protects against “invidious discrimination among similarly situated
individuals or implicating fundamental rights.” Scarbrough v. Morgan Cnty. Bd. of Ed., 470
F.3d 250, 260 (6th Cir. 2006). To establish an equal protection violation, Plaintiff must establish
that the challenged police action “had a discriminatory effect and that it was motivated by a
discriminatory purpose.” Bennett v. City of Eastpoint, 410 F.3d 810 (6th Cir. 2005) (citations
omitted). To show discriminatory effect, Plaintiff must plead facts to establish that Tonia
Carmichael was treated differently from similarly situated individuals. Singfield v. Akron
Metropolitan Housing Authority, 389 F.3d 55, 566 (6th Cir. 2004). To show discriminatory
purpose, the plaintiff must establish that an official chose to engage in the action because of, not
merely in spite of, its adverse effects upon an identifiable group. Bennett, 410 F.3d at 818 (6th
Cir. 2005). There is a strong presumption that the state actors have properly discharged their
official duties, and to overcome that presumption the plaintiff must present clear evidence to the
contrary; the standard is a demanding one. Harajli v. Huron Twp., 365 F.3d 501, 508 (6th Cir.
2004) (citations omitted).
Here, Plaintiff appears to assert that the missing person report was treated differently
because Tonia Carmichael was African American. However, as with Plaintiff’s 42 U.S.C. §
1981 claim, the Complaint lacks factual allegations to support a claim of racial discrimination, or
a finding that the Warrensville Heights Police Defendants acted with discriminatory purpose.
Instead, the Complaint alleges that the missing person report was rejected because Tonia
Carmichael was a drug addict and would return when she exhausted her supply of drugs. This
24

allegation is insufficient to establish a claim for race discrimination under the Equal Protection
Clause.
Additionally, Plaintiff has failed to allege facts to demonstrate a discriminatory effect.
Plaintiff has not alleged a single fact to support the legal conclusion that similarly situated
individuals who were members of a different race were treated differently. Consequently, it is
indisputable that Plaintiff has not pled sufficient facts, and that the Warrensville Heights
Defendants did not violate Tonia Carmichael’s equal protection rights.5
Having failed to adequately plead a Fourteenth Amendment constitutional violation,
Plaintiff’s federal claims against the Warrensville Heights Defendants fail as a matter of law.
These claims are dismissed.6/7

5

Any claim Plaintiff intends to assert based on Tonia Carmichael’s status as a drug addict
also is dismissed. The status of being a substance abuser is not a suspect class for equal
protection analysis, so the lowest level of scrutiny applies to Defendants’ actions. See Gazette,
41 F.3d at 1066. Under the “rational basis test” applied for low level scrutiny, Defendants’
actions are constitutional if they are rationally related to a legitimate government interest.
Applying this test, the Sixth Circuit held in Gazette that it is rational for police to not
expeditiously investigate the disappearance of a recovering alcoholic because the police have
prior experience with the missing person and believe she is undergoing a “binging” episode. The
court held that this decision was rationally related to a legitimate government interest in
determining how to allocate scarce police resources. Id. at 1067. Under the reasoning in
Gazette, a decision to not promptly investigate the disappearance of a drug addict is rationally
related to the legitimate government interest in determining how to allocate police resources.
Consequently, the any equal protection claim based on Plaintiff’s status as s drug addict fails.
6

It is unclear whether Plaintiff sues the Warrensville Heights Police Officer Defendants
McGlibra, Jelenick, Martinez and Prince in their individual or official capacities. To the extent
Plaintiff intended to file suit against these Defendants in their individual capacities, these
Defendants are entitled to dismissal of the Complaint because qualified immunity protects them
from suit and liability. The doctrine of qualified immunity is an affirmative defense that “shields
government officials performing discretionary functions . . . from civil damages liability as long
as their actions could reasonably have been thought consistent with the rights they are alleged to
have violated.” Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir. 2004)
(quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)) (internal quotations omitted).
25

2.

State Law Claims

Plaintiff’s state law claims against the Warrensville Heights Defendants also fail as a
matter of law. The Warrensville Heights Defendants are immune from Plaintiff’s claims under
R.C. Chapter 2744.
As previously discussed, two criteria must be satisfied to qualify for immunity under
Chapter 2744. First, the defendant attempting to invoke the immunity must be a political
subdivision. Second, the political subdivision must have been engaged in either a governmental
or proprietary function. Plaintiff does not dispute that the City of Warrensville Heights is a
political subdivision.
Further, under the first tier of the sovereign immunity analysis, all of Plaintiff’s
allegations pertain to “governmental” functions, particularly “the provision or nonprovision of
police . . . services or protection.” See Meredith v. Cleveland Hts. Police Dept., Cuya. App. No.
93436, 2010-Ohio-2472. Under the second tier of the sovereign immunity analysis, none of the

Qualified immunity serves as both “a defense against liability” and “an entitlement not to stand
trial or face the other burdens of litigation.” Morrison v. Bd. Of Trs. Of Green Twp., 583 F.3d
394, 400 (6th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 200-201 (2001)). It is Plaintiff’s
burden to show a constitutional violation to defeat qualified immunity. As discussed, Plaintiff
here has failed to adequately plead a constitutional violation. Thus, qualified immunity applies.
Saucier, 533 U.S. at 201.
7

Claims against municipalities, such as the City of Warrensville Heights, challenging the
municipality’s policies, procedures and training practices cannot stand if the plaintiff’s
constitutional rights were not violated. Wilson v. Morgan, 477 F.3 d326, 340 (6th Cir. 2007). If
“a person suffered no constitutional injury at the hands of the individual police officer, the fact
that the departmental regulations might have authorized the [alleged constitutional violation] is
quite beside the point.” City of Lost Angeles v. Heller, 475 U.S. 796, 799 (1986). Plaintiff has
failed to adequately plead a violation of any constitutional right. Thus, Plaintiff’s federal claims
against the City of Warrensville Heights fail as a matter of law.
26

exceptions to immunity listed at R.C. § 2744.02(B) apply in this case. In particular, contrary to
Plaintiff’s claims, this case does not involve negligence in the performance of a “proprietary
function.” By definition, matters designated as governmental functions are excluded from the
term proprietary function. R.C. § 2744.01.
Because none of the exceptions to sovereign immunity apply, the Court need not engage
in the third tier of the sovereign immunity analysis to decide whether immunity could be
reinstated pursuant to the defenses set forth in R.C. § 2744.03. Sovereign immunity applies.
Additionally, the Warrensville Heights Police Defendants are immune from Plaintiff’‘s
claims under R.C. § 2744.03(A)(6), which provides immunity from liability to employees of
political subdivisions. That section provides:
(A)

In a civil action brought against a political subdivision or an employee of a
political subdivision to recover damages for injury, death, or loss to
persons or property allegedly caused by any act or omission in connection
with a governmental or proprietary function, the following defenses or
immunities ay be asserted to establish non-liability: . . .
(6)

. . . [T]he employee [of a political subdivision] is immune from
liability unless one of the following applies;
(a)

The employee’s acts or omissions were manifestly outside
the scope of the employee’s employment or official
responsibilities;

(b)

The employee’s acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner;

(c)

Liability is expressly imposed upon the employee by a
section of the Revised Code.

By its terms, R.C. § 2744.03(A)(6) creates a presumption of immunity. Cook v.
Cincinnati, 103 Ohio App. 3d 80, 90 (1995). As with the subdivision itself, this presumption

27

may only be overcome by demonstrating that an exception to immunity applies. M.B. v. Elyria
City Bd. of Educ., 9th App. Dist, 05CA008831, 2006-Ohio-4533.
None of these exceptions in under R.C. § 2744.03(A)(6) apply in this case. No section of
the Revised Code expressly imposes liability on the individually named Warrensville Heights
Police Officers. Plaintiff cannot dispute that the Warrensville Heights Police Officers were
acting within the scope of their employment at the time that this incident occurred.
Likewise there are no allegations that would invoke the exception contained in R.C. §
2744.03(A)(6)(b) and demonstrate that the Warrensville Heights Police Officers acted willfully,
wantonly, and recklessly. The facts alleged in the Complaint do not rise to this heightened level
of culpability.
“Wanton” misconduct refers to a failure to exercise any care whatsoever. Fabrey v.
McDonald Village Police Department, 70 Ohio St.3d 351, 356 (Ohio 1994). “Willful
misconduct” is an intentional deviation from a clear duty or from a definite rule of conduct, a
deliberate purpose not to discharge some duty necessary for safety, or purposely doing wrong
acts with knowledge or appreciation of the likelihood of injury.” Brockman v. Bell, 78 Ohio
App.3d 508, 515 (Ohio App. 1 Dist. 1992). “Recklessness” is a perverse disregard of a known
risk. O’Toole v. Denihan, 118 Ohio St.3d 374 92008), syl. ¶ 3. The actor must be conscious that
his conduct will in all probability result in injury. Id.
Here, the sole allegation is that the Warrensville Heights Police Defendants failed to
prepare a missing person report 48 hours after Tonia Carmichael went missing, and stated that
Ms. Carmichael would show up once she had finished doing drugs. There are no allegations that
would permit an inference that the Warrensville Heights Police Defendants had any knowledge
28

that Tonia Carmichael had been kidnapped or was in any imminent danger, or that the
Warrensville Heights Police Defendants had any reason to suspect her dire situation.
Consequently, the Warrensville Heights Police Defendants are entitled to immunity under
Chapter 2744 of the Ohio Revised Code.8
F.

The Cleveland Defendants

Like the claims previously discussed, all of Plaintiff’s federal and state claims against the
Cleveland Defendants fail as a matter of law. Plaintiff’s Complaint lacks a plausible cause of
action against any of the Cleveland Defendants.
As an initial matter, claims against the Cleveland Health Department lack merit because
the Health Department is not sui juris. “Administrative units of a local government are not sui
juris because they lack the power to sue, and cannot be sued absent positive statutory authority.”
Hicks v. City of Barberton, 2011 WL 3022089, *2 (N.D. Ohio July 22, 2011). Thus, the Health
Department is not a proper party. Plaintiff fails to assert any plausible constitutional or Ohio law
claim against the remaining Cleveland Defendants.
1.

Federal Claims
a.

42 U.S.C. § 1981

Plaintiff’s § 1981 claim is not properly pled because Plaintiff has failed to assert any facts
beyond a “formulaic recitation of the elements of a cause of action” that Tonia Carmichael was
treated differently from other, similarly situated missing persons because of race. Iqbal, 129
S.Ct. at 1949. To state a claim under § 1981, Plaintiff must allege that Tonia Carmichael was
8

Even without immunity, the Warrensville Heights Defendants are entitled to dismissal
because the Complaint does not plausibly allege that the Warrensville Heights Defendants owed
a duty to Tonia Carmichael, or were the actual or proximate cause of her death.
29

treated differently because of her race. Davey, 627 F. Supp. 1458 (citing Long, 496 F.2d 500).
Plaintiff does not allege how the Cleveland Defendants treated Tonia Carmichael differently
from any other similarly situated missing persons. Plaintiff’s briefing does not dispute, or even
address this deficiency in the Complaint. Therefore, Plaintiff’s § 1981 claim against the
Cleveland Defendants is dismissed.
b.

42 U.S.C. § 1983
i.

Due Process

Plaintiff likewise has not properly pled a claim under § 1983 against the Cleveland
Defendants. The Supreme Court’s DeShaney rule makes clear that the Fourteenth Amendment
Due Process Clause generally does not confer any affirmative right to governmental aid, even
where such aid may be necessary to secure life, liberty, or properly. DeShaney, 489 U.S. at 196.
Thus, Tonia Carmichael had no affirmative constitutional right to the Cleveland Defendants’
protection from Mr. Sowell, a future, unknown assailant.
Plaintiff’s Complaint lacks any facts to establish an exception to the DeShaney rule.
First, there are no facts to show a custodial relationship between the Cleveland Defendants and
Tonia Carmichael as is required to show a “special relationship.” No special relationship was
created, and the Cleveland Defendants had no affirmative duty to assume responsibility for Tonia
Carmichael’s safety and well-being.
Second, the Complaint is devoid of facts to establish a “special danger.” Plaintiff failed
to plead that any action taken by the Cleveland Defendants placed Tonia Carmichael specifically
at risk, as distinguished from a risk that may have affected the public at large. Kallstrom, 136
F.3d 1055 (the “special danger” exception to the DeShaney rule requires that the defendant’s
30

actions place the plaintiff specifically at risk as opposed to the public generally). By releasing
Anthony Sowell in 2008, the Cleveland Defendants placed Tonia Carmichael in no greater
danger than the general population. Thus, the Cleveland Defendants had no affirmative duty to
prevent Anthony Sowell’s private act of violence against Tonia Carmichael.
ii.

Equal Protection

Plaintiff also has failed to allege a Fourteenth Amendment equal protection violation. As
previously discussed, the Equal Protection Clause protects against “invidious discrimination
among similarly situated individuals or implicating fundamental rights.” Scarbrough, 470 F.3d
at 260. To establish an equal protection violation, Plaintiff must establish that the challenged
police action “had a discriminatory effect and that it was motivated by a discriminatory purpose.”
Bennett, 410 F.3d 810. To show discriminatory effect, Plaintiff must plead facts to establish that
Tonia Carmichael was treated differently from similarly situated individuals. Singfield, 389 F.3d
at 566.
Plaintiff’s Complaint does not allege a single fact to support that the Cleveland
Defendants treated Tonia Carmichael differently from any other similarly-situated missing
persons. Absent any such facts, the Complaint lacks a plausible equal protection claim.9
Because the Complaint fails to plead a due process or equal protection violation
committed by the Cleveland Defendants, Plaintiff’s allegations of liability for the supposed
policy of “straight release” are baseless. A municipality may be held liable under § 1983 when
execution of a local government’s policy or custom inflicts the plaintiff’s constitutional injury.
9

Additionally, proximate cause is required to sustain a § 1983 claim. Id. There is no
proximate cause between the acts of the Cleveland Defendants and Tonia Carmichael’s
unfortunate death by Sowell, a private actor.
31

Monell v. N.Y.C. Dept. of Soc. Servs., 436 U.S. 658, 694 (1978). However, challenges to the
municipality’s policies, procedures and training practices cannot stand if the plaintiff’s
constitutional rights were not violated. Wilson, 477 F.3d at 340. If “a person suffered no
constitutional injury at the hands of the individual police officer, the fact that the departmental
regulations might have authorized the [alleged constitutional violation] is quite beside the point.”
Heller, 475 U.S. at 799. Plaintiff has failed to adequately plead a violation of any constitutional
right. Thus, Plaintiff’s claims concerning the Cleveland Defendants’ policies or customs, and in
particular the alleged policy of “straight release,” fail as a matter of law.10/11
2.

State Law Claims

Plaintiff’s negligence and wrongful death claims lack merit because the Cleveland
Defendants are immune from liability under R.C. § 2744.02. Cleveland is a political subdivision
as defined in Division (F). Cleveland was performing a governmental function in its act of
releasing Anthony Sowell. Subdivisions (C)(2)(a) and (h) provide that the provision of police
services or protection and the operation of jails are a “governmental function.” Id. The wrongful
death allegedly occurred as a result of governmental action or inaction. This falls squarely within

10

To the extent Plaintiff intended to file suit against the Cleveland Police Defendants in
their individual capacities, these Defendants are entitled to dismissal of the Complaint because
qualified immunity protects them from suit and liability. See Morrison v. Bd. Of Trs. Of Green
Twp., 583 F.3d 394, 400 (6th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 200-201 (2001)).
Once qualified immunity is raised as a defense, it is Plaintiff’s burden to show a constitutional
violation to defeat qualified immunity. As discussed, Plaintiff here has failed to adequately plead
a constitutional violation. Thus, qualified immunity applies. Saucier, 533 U.S. at 201.
11

Plaintiff’s assertion that any of the Cleveland Defendants are vicariously liable for the
alleged policy of “straight release” also fails. The doctrine of respondeat superior does not
apply. A governmental entity cannot be held liable under § 1983 based solely upon allegations
that an employee or agent inflicted an injury. Porter v. City of Columbus, 2008 WL 5210873, *4
(S.D. Ohio Dec. 12, 2008).
32

the immunity provided by R.C. § 2744.02. Thus, the Cleveland Defendants are protected under
statutory immunity and no exception applies.12
Additionally, negligence as the basis for a claim against a municipality requires the same
tort law principles that are applied to private parties.” Maust v. Meyers Products, Inc., 64 Ohio
App. 3d 310 (Ohio App. 8th Dist. 1989). To sustain a cause of action, the pleadings must allege
the existence of a duty, a subsequent breach, and causation between the breach and the alleged
wrongful death. Plaintiff has failed to establish that the Cleveland Defendants had a duty toward
Tonia Carmichael, that the Cleveland Defendants breached that alleged duty, and that the breach
caused her death. Absent a plausible claim against the Cleveland Defendants, the Complaint
against them must be dismissed.
G.

Injunctive Relief

Plaintiff’s claim for injunctive relief against the moving Defendants is untenable for
many reasons. Among other things, Plaintiff has failed to demonstrate a likelihood of success on
the merits. Indeed, this Order makes clear that Plaintiff’s Complaint borders on frivolity with
respect to the claims asserted against the moving Defendants. As such, there is no basis for an
award of injunctive remedies.
V. CONCLUSION
For all of the reasons stated, the Complaint is dismissed with prejudice with respect to
Counts I, II, IV, V, and VI. Count III is dismissed without prejudice.

12

The Cleveland Police Defendants are entitled to statutory immunity under R.C. §
2744.03(A)(6), for the reasons previously discussed in connection with the immunity applicable
to the Warrensville Heights Police Defendants.
33

IT IS SO ORDERED.
s/Donald C. Nugent
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE

DATED:April 30, 2012

34