MCCLOSKEY v. White et al

Filing 73

AMENDED Memorandum Opinion and Order denying motion to file amended complaint. Judge David A. Katz on 6/10/11. (G,C)

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

MICHAEL MCCLOSKEY,
Plaintiff,
-vsTHOMAS WHITE, et al.,

Case No. 3:09 CV 1273
AMENDED
MEMORANDUM OPINION
AND ORDER

Defendant.
KATZ, J.
This matter is before the Court on Plaintiff’s motion (Doc. 62) for leave to file an amended
complaint, to which defendant Village of Ottawa Hills has filed an opposition. (Doc. 63). For the
following reasons, the motion will be denied.
I. Standard of Review
Under the liberal amendment policy of Fed. R. Civ. P. 15(a), “a district court’s denial of
leave to amend pleadings is appropriate only in those limited circumstances in which undue delay,
bad faith on the part of the moving partly, futility of the amendment, or unfair prejudice to the
non-moving party can be demonstrated.” Roberson v. Hayti Police Dept., 241 F.3d 992, 995 (8th
Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). An amended complaint is futile if
the pleading would not survive a motion to dismiss. Brown v. Owens Corning Inv. Review
Comm., 622 F.3d 564, 573 (6th Cir. 2010).
Fed.R.Civ.P. 12(b)(6) provides for dismissal of a lawsuit for “failure to state a claim upon
which relief can be granted.” Courts must accept as true all of the factual allegations contained in
the complaint when ruling on a motion to dismiss. Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). To survive a motion to dismiss under
Rule 12(b)(6), “even though a complaint need not contain ‘detailed’ factual allegations, its ‘factual

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.’” Ass’n of Cleveland Fire Fighters v. City of
Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).

Conclusory allegations or legal conclusions masquerading as factual allegations will not
suffice. Twombly, 550 U.S. at 555 (stating that the complaint must contain something more than
“a formulaic recitation of the elements of a cause of action”). A complaint must state sufficient
facts to, when accepted as true, state a claim “that is plausible on its face.” Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009) (explaining that the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully” and requires the complaint to allow the court to
draw the reasonable inference that the defendant is liable for the alleged misconduct).
In conjunction with this standard, the Court is cognizant that Fed. R. Civ. P. 8(a)(2)
“requires only ‘a short and plain statement of the claim showing that the pleader is entitled to
relief.’ Specific facts are not necessary; the statement need only ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. at 93
(citing Twombly, 550 U.S. at 555); see also Sensations, Inc. v. City of Grand Rapids, 526 F.3d
291, 295-96 (6th Cir 2008). The Court “may consider the Complaint and any exhibits attached
thereto, public records, items appearing in the record of the case and exhibits attached to
defendant's motion to dismiss so long as they are referred to in the Complaint and are central to
the claims contained therein.” Bassett v. Nat'l Collegiate Athletic Ass'n, 528 F.3d 426, 430 (6th
Cir. 2008).

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The court will address whether the proposed new claims are subject to dismissal under
Rule 12(b)(6). If so, they are futile, and Plaintiff cannot amend his complaint to add these claims.
II. Discussion
Plaintiff seeks leave to amend his complaint to add claims against two new defendants,
Ottawa Hills Village Manager Marc Thompson and Ottawa Hills Police Chief Robert Overmeyer.
He also seeks to add two new claims against the Village of Ottawa Hills.
A. Proposed Claims Against Thompson
Plaintiff claims that Thompson tried to force Plaintiff to leave his residence by enforcing a
Village policy that allowed only single families to live in Village homes. (Doc. 62-1, at 3).
Plaintiff also states that Thompson appeared at plaintiff’s place of residence, and yelled at Plaintiff
and the homeowner of Plaintiff’s residence, claiming that he had previously forced an unmarried
couple living together to abandon their Village residence. Id. Plaintiff further alleges that
Thompson “conceived and adopted an illegal policy and procedure, in which Ottawa Hills law
enforcement officers were encouraged to harass and intimidate” the plaintiff to force “Mr.
McCloskey out of the residence he was legally residing in located within the village of Ottawa
Hills.” Id. at 13.
The Court does not find that these allegations state a claim upon which relief may be
granted. Thompson was the Village of Ottawa Hills’ Manager. His position required that he
enforce the Village’s zoning code. The proposed amendment alleges that Thompson tried to force
Plaintiff out of his Village residence through enforcement of a policy that only allowed single
families to live within Village homes, which violated Plaintiff’s constitutional rights (Doc. 62-1,
at 11).

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Zoning ordinances, however, do not necessarily involve rights guaranteed by the
Constitution. The Supreme Court has held that a zoning ordinance that barred unrelated college
students from living in a home zoned for single families did not violate the students’ constitutional
rights. Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). In that case, the Court found that the
Village of Belle Terre’s zoning ordinance did not violate the students’ fundamental rights, such as
voting, the right of association, the right to access the courts, or the right to privacy. Id. at 7.
Similarly, the proposed amended complaint does not specify any constitutional rights of
Plaintiff’s that Thompson violated. Ensuring that zoning laws are enforced is a legitimate
governmental purpose, regardless of whether enforcement of such laws inconveniences or
negatively impacts alleged violators of such ordinances. As Village Manager, Thompson was
entitled to enforce Village zoning ordinances. Plaintiff’s proposed amended complaint thus fails to
indicate that Thompson “conceived and adopted an illegal policy and procedure” to harass
Plaintiff. (Doc 62-1, at 13). Indeed, Plaintiff states that Thompson claimed he had previously
enforced the zoning code against other unmarried individuals sharing a residence in the Village.
This indicates that Thompson may have regularly legally enforced the code, and seems to indicate
that the Plaintiff was not unfairly targeted by Thompson.
Some courts have defined “family” broadly in interpreting what constitutes a single-family
dwelling. Moore v. City of East Cleveland, 431 U.S. 494 (1977) (zoning ordinance that prohibited
grandmother from living with her son and grandson violated her constitutional rights); Saunders v.
Clark County Zoning Dept., 66 Ohio St.2d 259, 263 (1981) (citing Smith v. Organization of Foster
Families, 431 U.S. 816, 844-845 (1977) (a family unit that rears children, regardless of the
composition of the unit, is protected by the Constitution). But Plaintiff is not a member of the

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Village homeowner’s family, nor is he claiming to be, and thus the broad interpretation of
“family” in some zoning cases is irrelevant.
Plaintiff additionally asserts that Thompson encouraged officers to harass Plaintiff,
violating plaintiff’s constitutional rights. (Doc 62-1, at 13). But a §1983 claim must include facts
that point towards involvement of the accused in the alleged wrongdoing, Ghaster v. City of Rocky
River, 2010 WL 2802682 at *5 (N.D. Ohio July 13, 2010), and the proposed amended complaint
does not allege that Thompson had any supervisory power over either Officer White or any other
Ottawa Hills police officer. It also does not allege that Thompson was present at the shooting. The
proposed amended complaint, further, does not show any causal link between Thompson’s actions
in attempting to enforce the Village’s zoning code and Officer White’s actions on May 23, 2009.
The Court therefore finds that Plaintiff’s claims against Thompson would not survive a
motion to dismiss.
B. Proposed Claims Against Overmeyer
Plaintiff alleges that Chief Overmeyer “participated in the implementation and the carrying
out of the unconstitutional policy and/or procedure to intimidate and coerce the Plaintiff to leave
the home he was living in which was located in the Village of Ottawa Hills.” (Doc. 62-1, at 2).
Plaintiff also claims that Chief Overmeyer acted with deliberate indifference to plaintiff’s
constitutional rights under the Fourth and Fourteenth Amendments. Id. at 4.
Plaintiff, however, does not direct any specific allegations against Chief Overmeyer. Nor
does the proposed amended complaint specifically direct any claim for relief against Chief
Overmeyer. It also does not state factual content that would allow the court to reasonably draw an
inference that Overmeyer is liable for the alleged misconduct, a requirement for facial plausibility

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under Iqbal. Instead, the proposed amended complaint merely states broad, conclusory allegations
against Chief Overmeyer without any factual basis.
The Court therefore finds that Plaintiff’s claims against Chief Overmeyer would not
survive a motion to dismiss.
C. Proposed New Claims Against Ottawa Hills
Plaintiff also moves to add new claims against the Village of Ottawa Hills. Plaintiff alleges
that the Village adopted a policy of intimidating and harassing Plaintiff in order to force him out
of his Village residence. (Doc. 62-1, at 2). He also claims the Village “adopted a policy and/or
procedure to encourage violations of Michael McCloskey’s constitutional rights and was the
moving force behind the events that took place on May 23, 2009.” Id. at 3.
A municipality is liable for a §1983 violation if its policies violate constitutional rights.
Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 707-708 (1978).
The proposed amended complaint, however, does not contain facts plausibly indicating that the
Village violated any of Plaintiff’s constitutional rights. As noted above, the enforcement of
zoning regulations does not necessarily infringe upon an individual’s constitutionally protected
rights. Village of Belle Terre, supra, 416 U.S. at 9. The proposed amended complaint, moreover,
shows no causal link between the Village’s zoning policies and the shooting. Because the
proposed amended complaint indicates that Plaintiff’s proposed new claims against the Village
stem from its legitimate efforts to enforce its zoning code, it fails to plausibly state claims for
relief against the Village.
Therefore, the Court finds that the new claims against the Village would not survive a
motion to dismiss.

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III. Conclusion
For the foregoing reasons, Plaintiff’s motion for leave to amend the complaint (Doc. 62) is
denied.
IT IS SO ORDERED.
s/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE

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