Mumaw et al v. Ohio State Racing Commission et al

Filing 86

Opinion and Order. Defendant Richard Garrison's Motion for Judgment on the Pleadings (Related doc # 60 ) is granted. Judge Christopher A. Boyko on 3/26/2015. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

BENJAMIN MUMAW, ET AL.,
Plaintiffs,
Vs.
THISTLEDOWN RACETRACK, LLC
ET AL.,
Defendants.

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CASE NO.1:13CV1048
JUDGE CHRISTOPHER A. BOYKO

OPINION AND ORDER

CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendant Richard Garrison’s Motion for Judgment
on the Pleadings (ECF # 60). For the following reasons, the Court grants Defendant’s Motion
for Judgment on the Pleadings and dismisses all Plaintiffs’ claims against Defendant.
Background Facts
Plaintiffs, Benjamin Mumaw and Joshua Mumaw, are Ohio residents and members of
a father/son operation that breeds and trains racehorses and Plaintiff, Eyes of a Child Stables,
is a racing consortium and registered partnership in the State of Ohio. In this action, they
seek monetary damages and injunctive relief against the Commission and the other named
Defendants.

The Commission is a statutorily created Ohio agency “charged with the regulation,
supervision and rule enforcement for Thoroughbred and Standardbred horse racing in the
State of Ohio,” and Crawford is the Executive Director of the Commission. The Commission
vests its authority regarding horse racing, participants, personnel and activities involved in
horse racing in a Board of Stewards. On November 8, 2012, the Board of Stewards at
Thistledown Racetrack, under the Commission’s authority, withdrew Plaintiffs’ horse, Officer
Moo La Moo, from a race. Plaintiffs’ horse was withdrawn following Defendant Jones’s
communication alleging that Plaintiffs had a horse at Sugar Creek Livestock Auction, which
is known to occasionally sell horses to slaughterhouses. The Board of Stewards also
suspended Plaintiffs’ track privileges for the balance of 2012 and, after a later hearing,
permanently barred them from entry. Plaintiffs’ Second Amended Complaint alleges a
second Board of Stewards, which included Garrison, brought charges against Plaintiffs, held a
hearing and issued sanctions against Plaintiffs in May-June 2013.
Although selling and purchasing horses at auction for the purpose of slaughter violates
no state or federal laws, the Thistledown Boarding Agreement prohibits parties from selling
race horses for slaughter or at an auction house that sells horses for slaughter. Plaintiff
Joshua Mumaw was the recorded owner of the former race horse, High Success, when it was
sold at Sugar Creek Livestock Auction. Plaintiffs claim, however, that the horse had been
given to “a woman,” and deny any part in or knowledge of the horse being at auction.
On February 26, 2014, Plaintiffs filed their Second Amended Complaint, alleging
claims against Garrison for violation of Plaintiffs’ due process rights and for abuse of power.
On August 11, 2014, Defendant Richard Garrison filed his Motion for Judgment on the

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Pleadings.
Garrison’s Motion
Garrison moves to dismiss Plaintiffs’ claims against him under a number of theories.
First, Garrison argues Plaintiffs’ Second Amended Complaint fails to allege facts sufficient to
state plausible claims for due process and abuse of power violations. Under binding United
States Supreme Court precedent Plaintiffs’ Second Amended Complaint must state more than
conclusory allegations of wrongdoing but, instead, must allege facts sufficient to make these
claims plausible. Because Plaintiffs’ Second Amended Complaint only states conclusory
allegations of wrongdoing, it fails as a matter of law.
Second, Garrison contends Plaintiffs cannot demonstrate a due process violation
because the Hearing held before the Board of Stewards did not deprive Plaintiffs of any
rights. The Board of Stewards’ decision was immediately appealable and any sanction issued
by the Board was automatically stayed until an appeal was heard. Therefore, Garrison claims,
Plaintiffs cannot plausibly assert any due process violation. Furthermore, Garrison argues he
is immune for any individual liability because he did not knowingly participate in conduct
that violated Plaintiffs’ constitutional rights. Lastly, Garrison argues he is immune from
monetary damages arising from any act conducted in his official capacity under the Eleventh
Amendment to the United States Constitution.
LAW AND ANALYSIS
After the pleadings are closed but within such time as not to delay the trial, any party
may move for judgment on the pleadings. Fed. R. C.iv. P. 12(c). In this jurisdiction, “[t]he
standard of review for a judgment on the pleadings is the same as that for a motion to dismiss

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under Federal Rule of Civil Procedure 12(b)(6) . . . . We ‘construe the complaint in the light
most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and
determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims
that would entitle relief.’” Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d
383, 389 (6th Cir. 2007) (citations omitted). The Court’s decision “rests primarily upon the
allegations of the complaint”; however, “‘exhibits attached to the complaint[] also may be
taken into account.’” Barany-Snyder v Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (citation
omitted) (brackets in the original). Lastly, a Rule 12(c) motion “is granted when no material
issue of fact exists and the party making the motion is entitled to judgment as a matter of
law.” Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991).
Due Process Violations
According to Plaintiffs’ Second Amended Complaint, Garrison was a Steward with
Ohio State Racing Commission (“OSRC”). The OSRC is charged with regulating,
supervising and enforcing rules relating to Thoroughbred and Standardbred horse racing in
the State of Ohio. Furthermore, it issues licences and permits for race participants and
venues. On May 9, 2013, Garrison, along with two other Stewards, convened a hearing at
Thistledown Racetrack wherein Plaintiffs were called to defend certain charges brought by
the Stewards. Plaintiffs objected to the hearing but the Stewards proceeded over the
objections. According to Plaintiffs, at the hearing the Stewards took testimony they knew to
be false, challenged and intimidated Plaintiffs’ witnesses and reshaped testimony to fit the
Stewards’ own predetermined outcome. In a June 14, 2013 ruling, the Stewards issued
sanctions against Plaintiffs for violations that Plaintiffs contend were contrary to the evidence

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presented.
Before the Court may determine whether Plaintiffs’ constitutional rights were
violated, it must first consider the process involved. Here, the Stewards’ actions were
conducted according to O. R.C. § 3769.091, which reads:
The state racing commission may delegate to the stewards and judges of racing
meetings under the jurisdiction of the commission the power to suspend
licenses for not to exceed one year and to impose fines not to exceed one
thousand dollars for any violation of the rules or orders of the commission,
provided that two of such officials shall concur in such suspension. Any
suspension of a license by such officials is valid even though the suspension
extends beyond the period of the racing meeting for which such officials have
been appointed. The suspension shall be effective at all other race meetings
under the jurisdiction of the commission. Any fine or suspension may be
appealed to the commission. Such appeal shall stay the fine or suspension until
further action by the commission.
Plaintiffs’ Second Amended Complaint alleges at paragraphs 48-51 and 76-78:
48. On May 9, 2014, Daryl Parker, Joseph DeLuca and Richard Garrison,
Collectively Board of Stewards II, convened a Hearing at Thistledown
Racetrack wherein Plaintiffs were each called to defend against certain charges
prosecuted by the Stewards that each knew or should have known to be false
and of a purely retaliatory nature; 1
49. The Board of Stewards II went forward with the “Hearing” over the
legitimate objections of Plaintiffs’ counsel and with Plaintiffs in abstentia;
50. The Board of Stewards II took testimony they knew to be false and
contrary to the facts of their inquiry; challenged and intimated (sic) the
Commission’s own witnesses when they disagreed with the testimony; and
consistently restated the testimony to comply with the outcome which they
always intended even over the occasional objections and corrections of those
giving testimony; and
51. In a ruling dated June 14, 2013, the Board of Stewards II found against

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Although Plaintiffs’ Second Amended Complaint alleges the hearing occurred on
May 9, 2014, Plaintiffs’ Brief in Opposition states the hearing was held on May 9,
2013.
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Plaintiffs contrary to the facts and evidence presented and issued sanctions
against Plaintiffs based upon that ruling.
76. The Board of Stewards II collectively and each in their individual
capacities and under color of law did conduct a Hearing wherein they
purposefully and with intent to injure the Plaintiffs proceeded despite a known
conflict of interest over the objections of Plaintiffs’ counsel; they manipulated
the testimony; and they and each caused false evidence to be admitted into the
record;
77. The Board of Stewards II collectively and each in their individual
capacities and under color of law deprived Plaintiffs of due process of law;
78. The Board of Stewards II collectively and each in their individual capacities
and under color of law issues (sic) a Ruling that they and each knew to be contrary
to the facts;

The Second Amended Complaint fails to allege the nature of the charges brought, the
substance of the testimony presented, what witnesses were heard, what charges were false and
what sanctions were issued. Plaintiffs offer no factual allegations concerning these matters.
Plaintiffs’ allegations that “certain charges” were brought and as a result “issued sanctions
against Plaintiffs” does not permit the Defendant nor the Court from ascertaining what injury
if any Plaintiffs suffered, what deprivation Plaintiffs experienced, what charges were brought
and what process was offered. Garrison argues the lack of facts supporting Plaintiffs’ due
process claim in Plaintiffs’ Second Amended Complaint leads to Plaintiffs failure to state a
claim as a matter of law.
LAW AND ANALYSIS
To state a claim, the Court applies the following standard:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” As the Court held in [Bell Atlantic v.] Twombly, 550 U.S. 544, 127 S.
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Ct. 1955 [(2007)], the pleading standard Rule 8 announces does not require
“detailed factual allegations,” but it demands more than an unadorned, theDefendant-unlawfully-harmed-me accusation. Id. at 555... A pleading that
offers “labels and conclusions” or “a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555. Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of “further factual enhancement.” Id. at
557.
To 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.”
Id. at 570. A claim has facial plausibility when the Plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
Defendant is liable for the misconduct alleged. Id. at 556. The plausibility
standard is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a Defendant has acted unlawfully. Ibid. Where a
complaint pleads facts that are “merely consistent with” a Defendant’s
liability, it “stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. at 557.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
According to the Sixth Circuit, the standard described in Twombly and Iqbal “obliges
a pleader to amplify a claim with some factual allegations in those contexts where such
amplification is needed to render the claim plausible.” Weisbarth v. Geauga Park Dist., 499
F.3d 538, 541 (6th Cir.2007) (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007)).
That is, “Iqbal interpreted Twombly to require more concrete allegations only in those
instances in which the complaint, on its face, does not otherwise set forth a plausible claim for
relief.” Weisbarth, 499 F.3d at 542. A complaint should be dismissed when it fails to allege
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
The Court is not required to accept as true legal conclusions.
Plaintiffs’ Second Amended Complaint alleges that, in a prior ruling from a different
Board of Stewards in which Garrison did not participate, Plaintiffs’ were permanently barred
from racing at Thistledown. (See SAC at 40). There he alleges a particular deprivation.
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With respect to the Board of Stewards action involving Garrison, Plaintiffs’ Second Amended
Complaint fails to allege a deprivation other than referencing “sanctions.” Therefore, the
Court is unable to determine what interests of Plaintiffs were affected by Garrison and the
extent therein.
This is particularly important when it concerns a due process right. Plaintiffs’ Second
Amended Complaint alleges due process violations under the Constitutions of the United
States and the State of Ohio.2 Plaintiffs” Second Amended Complaint does not distinguish
what constitutional due process right is affected. The Constitution protects both an
individual’s substantive and procedural due process rights. Substantive Due Process has been
defined as, “the doctrine that governmental deprivation of life, liberty, or property are subject
to limitations regardless of the adequacy of the procedures employed.” Pearson v. City of
Grand Banc, 961 F.2d 1211, 1216 (6th Cir. 1992). Furthermore, substantive due process
encompasses, “the right not to be subject to arbitrary and capricious action by a state either by
legislative or administrative action...” Id at 1217. Here, without some factual underpinning,
the Court cannot determine the deprivation or the injury. Therefore, Plaintiffs’ claim fails as
a matter of law.
“Procedural due process imposes constraints on governmental decisions which deprive
individuals of “liberty” or “property” interests within the meaning of the Due Process Clause
of the Fifth or Fourteenth Amendment.” Matthews v. Eldridge, 424 U.S. 319, 332 (1976).

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U.S. and Ohio Constitutional claims are coextensive and are analyzed the same.
Walsh v. Erie County Dept. of Job and Family Services, 240 F.Supp.2d 731
(N.D.Ohio 2003).
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The fundamental requirement of due process is an opportunity to be heard at a meaningful
time and in a meaningful manner.” Id. at 333. “(D)ue process is flexible and calls for such
procedural protections as the particular situation demands.” Id. at 334, citing Morrissey v.
Brewer, 408 U.S. 471, 481, (1972). In analyzing procedural due process claims courts must
consider three factors: “(1) some substantive right - life, liberty or property - must be at
stake; (2) some deprivation of that substantive right must occur; and (3) the deprivation must
occur without due process. If the process for the deprivation is adequate, then no due process
violation has occurred.” Brickner v. Voinovich, 977 F.2d 235, 237 (6th Cir.1992). Similar to
the substantive due process analysis, Plaintiffs’ failure to allege facts concerning the nature of
the charges, the proceedings, the deprivation and the sanctions fails to satisfy the
Twombly/Iqbal standard and mandates dismissal.
Even if the Court were to find the facts as alleged stated a due process claim,
Plaintiffs’ claims fail as a matter of law because Plaintiffs’ were afforded sufficient due
process. “The fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333,
(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, (1965)). Assuming that the Board
of Stewards improperly conducted the initial hearing and issued sanctions, the law is quite
clear that Plaintiffs had a right to appeal the Board of Stewards’ decision and that such an
appeal would have stayed any sanction order. See O.R.C. § 3769.091 (“Any fine or
suspension may be appealed to the commission. Such appeal shall stay the fine or suspension
until further action by the commission.”). As previously stated by the Court in its Order
denying Plaintiffs’ Motion for Preliminary Injunction, an appeal under O.R.C. § 3769.091

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affords the appellant an opportunity for a full hearing before the OSRC, complete with the
opportunity to call witnesses and to be represented by counsel. Should the appellant object to
the finding of the OSRC, Ohio law permits an appeal to an Ohio court of common pleas and
subsequently, the right to appeal to an Ohio appellate court.
In fact, under Ohio law, the Board of Stewards is not required to hold a hearing prior
to imposition of sanctions. See Wager v. Ohio State Racing Comm’n, No. CA-2885 1992 WL
29209, *3 (Ohio App. Jan. 22, 1992); O.R.C. § 119.06. In Barry v. Barchi, (1979) 443 U.S.
55, the United States Supreme Court held that due process did not require a pre-deprivation
hearing before suspending a horse trainers horse from racing. The Supreme Court held:
We do not agree with Barchi's basic contention, however, that an evidentiary
hearing was required prior to the effectuation of his suspension.
Unquestionably, the magnitude of a trainer's interest in avoiding suspension is
substantial; but the State also has an important interest in assuring the integrity
of the racing carried on under its auspices. In these circumstances, it seems to
us that the State is entitled to impose an interim suspension, pending a prompt
judicial or administrative hearing that would definitely determine the issues.
Id. at 64.
Here, Ohio law requires any sanction imposed on Plaintiffs by the Board of Stewards
be stayed if Plaintiff appeals. The appeal must be heard by the OSRC within thirty days of
the date of the appeal. Wagers, at *3. Plaintiffs’ due process violation claim fails because the
statutory scheme provided in O.R.C. § 3769.091 provides multiple levels of review sufficient
to ensure Plaintiffs an opportunity to be heard. Plaintiffs do not allege that an appeal to the
OSRC would be futile, nor do they allege that the appeals permitted under the statute do not
satisfy due process requirements. Therefore, Plaintiffs cannot assert a lack of due process as a
matter of law.

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There are a number of additional grounds for dismissing Plaintiffs’ claims against
Garrison. First, Defendant is entitled to immunity for any monetary damages resulting from
acts in his official capacity as a Racing Steward under the Eleventh Amendment.
“The Eleventh Amendment, as interpreted by the Supreme Court, bars an action for
damages in a federal court against a State, unless Congress has abrogated its sovereign
immunity or the State has expressly waived it.” Lee Testing & Engineering, Inc. v. Ohio
Dept. of Transp., 855 F.Supp.2d 722, 725 (S.D.Ohio,2012) citing Virginia Office for
Protection & Advocacy v. Stewart, ––– U.S. ––––, 131 S.Ct. 1632, 1637–38, (2011). “The
same immunity applies to an instrumentality of the state, such as a state official sued in his or
her official capacity.” Lee Testing, 855 F. Supp.2d at 725 citing Regents of the University of
California v. Doe, 519 U.S. 425, 429 (1997); see also Ernst v. Rising, 427 F.3d 351, 358 (6th
Cir. 2005). “Suits for money damages against state officials in their official capacity are
considered to be suits against the state itself.” Lee Testing, 855 F. Supp.2d at 725 citing Will
v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Eleventh Amendment immunity
bars claims brought under 42 U.S.C. § 1983 and state law. Lee Testing, 855 F. Supp.2d at
725-726 (“Because state officials are being sued for money damages in their official capacity,
the Eleventh Amendment is squarely in play as a bar to suit in federal court, at least to the
extent that Plaintiffs are bringing claims under 42 U.S.C. § 1983 (Claim Two) and state law
(Claim Three)”). Furthermore, a §1983 action brought against state officials acting in their
official capacities fails because such state actors are not “persons” within the meaning of 42
U.S.C. § 1983. See Will, 491 U.S. at 62–71. Therefore, Plaintiffs’ official capacity claims
against Defendant for monetary damages are barred by the Eleventh Amendment.

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Also, Plaintiffs’ Abuse of Power Claim fails as a matter of law insofar as it states a
claim under Ohio law because Ohio does not recognize such a claim. See Peters v. Ohio
Dept. of Natural Res., Case No. 03AP-350, 2003 WL 22480395, *4 (Ohio App. Dist 10, Nov.
4, 2003). “However, an abuse of power claim can be brought in federal court as substantive or
procedural due process arguments.” Schwartz v. City of Conneaut, Ohio, Case No.09 CV
1222, 2009 WL 4730594, 6 (N. D. Ohio, Dec. 8, 2009) See also Myers v. Delaware County,
Case No. 2–07–cv–844, 2008 WL 4862512, * 9–10, (S. D. Ohio Nov. 7, 2008). “The Sixth
Circuit has explained that ‘substantive due process prohibits the government's abuse of power
or its use for the purpose of oppression, and procedural due process prohibits arbitrary and
unfair deprivations of protected life, liberty, or property interests without procedural
safeguards.’” Schwartz at 6, Myers at *4 ( quoting Howard v. Grinage, 82 F.3d 1343, 1350
(6th Cir.1996). “When defendants are acting under color of state law, these arguments are
raised as § 1983 claims.” Schwartz, at 6. Thus, for the same reasons Plaintiffs’ due process
claim fails, their abuse of power claim fails, because the two are analyzed similarly. Since
Plaintiffs have not alleged sufficient facts to support their due process claims, their abuse of
power claim fails as well. Furthermore, because Ohio law affords sufficient due process,
Plaintiffs’ abuse of power claim fails.
The Court also finds Defendant is entitled to qualified immunity on Plaintiffs’ claims
against Defendant in his individual capacity. Qualified immunity protects government
officials and employees performing discretionary functions “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

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(1982); see also Saucier v. Katz, 533 U.S. 194, 202 (2001). When considering the defense of
qualified immunity a court must determine: (1) whether the facts alleged or shown by the
plaintiffs make out a violation of federal statutory or constitutional right; and (2) whether that
right was “clearly established” at the time of the defendants' alleged misconduct. Pearson v.
Callahan, 555 U.S. 223 (2009). “Once the qualified immunity defense is raised, the burden is
on the plaintiff to demonstrate that the officials are not entitled to qualified
immunity.” Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006). Here, Plaintiffs
have failed to allege violation of a clearly established right because they have not asserted
what they were charged with, the deprivation they suffered nor the sanctions imposed. Also,
they have not shown a denial of a constitutional right because the process given them was
sufficient under the law.
Therefore, for the foregoing reasons, the Court grants Defendant’s Motion for
Judgment on the Pleadings as to all claims asserted against him in Plaintiffs’ Second
Amended Complaint.
IT IS SO ORDERED.

s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge
Dated: March 26, 2015

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