Knecht v. Cincinnati City of et al

Filing 21

REPORT AND RECOMMENDATIONS re 17 MOTION to Dismiss Plaintiff's First Amended Complaint filed by Margo Springs, Cincinnati City of, 4 Complaint filed by Christopher Knecht: that defendant's motion to dismiss (Doc. 17) be GRANTED and this case TERMINATED. Objections to R&R due by 8/12/2013. Signed by Magistrate Judge Stephanie K. Bowman on 7/26/13. (Attachments: # 1 Certified Mail Receipt) (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTOPHER KNECHT,
Plaintiff,

Civil Action No.1:12-cv-763

vs.

Spiegel, J.
Bowman, M.J.

CITY OF CINCINNATI, OHIO, et al.,
Defendants.
REPORT AND RECOMMENDATION
This civil action is before the Court on the City of Cincinnati’s (“City”) motion to
dismiss1 (Doc. 17) and Plaintiff’s memorandum contra. (Doc. 19). Pursuant to local
practice, this case has been referred to the undersigned magistrate judge for disposition
of all pretrial matters, including the filing of a report and recommendation on any
dispositive motions. See 28 U.S.C. §636(b). For the reasons set forth herein, I now
recommend that the City’s motion to dismiss should be GRANTED.
I. BACKGROUND AND FACTS
Plaintiff, Christopher Knecht, brings this pro se action under state and federal law
for alleged civil rights violations committed by the City of Cincinnati (“City”) and Margo
Springs (“Springs”). According to the Complaint, Plaintiff alleges that the City provided
inaccurate records of Plaintiff’s criminal history. (Doc. 4). In 1987, Plaintiff was charged

1

Defendants’ instant motion to dismiss is directed at Plaintiff’s amended complaint (Doc. 14). Defendants
previously filed a motion to dismiss (Doc. 9) filed in response to Plaintiff’s original complaint. (Doc. 4).
Since amended complaints supersede the original pleading, the previous motion to dismiss is moot. See
Yates v. Applied Performance Technologies, Inc., 205 F.R.D. 497, 499, 2002 WL 193845 (S.D.Ohio
2002) (the filing of an amended complaint renders the previous motion to dismiss moot).

with two counts of theft and two counts of aggravated burglary. Plaintiff then entered
into a plea agreement. He pled guilty to one count of aggravated burglary and one
count of theft in exchange for dismissal of the other counts. In 2007, Plaintiff applied for
a job and received a copy of his background report. The report indicated that he had
been convicted of four felonies. As a result, Plaintiff then went to the Hamilton County
Clerk to inquire about his report. The clerk corrected the inaccurate information.
In 2008, it came to Plaintiff’s attention that he was listed on the Ohio Adult Parole
Authority website. Plaintiff’s parole ended in 2003. Plaintiff contacted the Ohio Adult
Parole Authority. Later that day, the Ohio Adult Parole Authority removed Plaintiff’s
information from the website. In 2012, Plaintiff obtained a copy of his conviction record
transcript. Plaintiff alleges that report inaccurately listed that he was convicted of three
felonies and that he inflicted physical harm on his victims – which he did not. Because
of these inaccuracies, Plaintiff asserts that he was not hired, was refused a lease
agreement for an apartment, was denied social service benefits, and is subjected to
heightened police interaction.
Plaintiff’s criminal convictions are maintained by the Regional Crime Information
Center, which is maintained by the City through its Enterprise Technology Solutions
office.

(Doc. 17).

Defendant Springs is the chief information officer at Enterprise

Technology Solutions. (Doc. 17). Plaintiff alleges that since the City maintains the
database which contains his criminal history, and his history has been reported
incorrectly, the City and Springs have breached a duty to accurately safeguard his
criminal history. Construed liberally, it appears that Plaintiff is asserting that the City of

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Cincinnati is in violation of 28 C.F.R. 20.21.

The City of Cincinnati and Springs now

move to dismiss Plaintiff’s complaint.
II. STANDARD OF REVIEW
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), Plaintiff’s
complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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. (citing Twombly, 550 U.S. at 556). The Court must accept all well-pleaded
factual allegations as true but need not “accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265,
286 (1986)). While a complaint need not contain “detailed factual allegations,” it must
provide “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555). A pleading that offers
“labels and conclusions” or “a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555. Nor does a complaint suffice if it tenders
“naked assertion[s]” devoid of “further factual enhancement.” Id. at 557. Thus, the
factual allegations of a pleading “must be enough to raise a right to relief above the
speculative level . . .” Twombly, 550 U.S. at 555. See also Sensations, Inc. v. City of
Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008).

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III. ANALYSIS
The City seeks dismissal of Plaintiff’s complaint due to Plaintiff’s failure to perfect
service on Defendants, lack of subject matter jurisdiction and failure to state any federal
claim upon which relief may be granted. Defendants further assert that they are entitled
to qualified immunity.

Upon careful review, the undersigned finds that Plaintiff’s

complaint lacks subject matter jurisdiction and fails to state a claim for relief. As such,
Defendants motion to dismiss is well-taken.2
First, the undersigned finds that Plaintiff’s complaint provides no basis for this
court to invoke jurisdiction.

Rule 12(h)(3) of the Federal Rules of Civil Procedure

provides: “If the court determines at any time that it lacks subject-matter jurisdiction, the
court must dismiss the action.” Fed. R. Civ. Pro. 12(h)(3). It appears that Plaintiff seek
to invoke this Court’s jurisdiction pursuant to the Civil Rights Act of 1871 and 28 U.S.C.
§§1331 and 1343(a)(3-4); and the Declaratory Judgment Act of 1934, 28 U.S.C. §§2201
and 2202. Upon close inspection of the complaint, such statutes are inapplicable to the
facts of this case.
As noted by the City, to the extent that Plaintiff seeks to invoke diversity
jurisdiction of the Court, such assertion is not well-taken. There is no diversity between
the parties, which is required pursuant to 28 U.S.C. §1332(a), because all because all
parties are citizens of the state of Ohio. (Doc. 4, ¶¶2-4). For a federal court to have
2

Defendants assert that is unclear whether service has been perfected on the city of Cincinnati
and/or Margo Springs because the docket does not reflect service of the summons and
complaint nor does it include an entry that a summons was returned executed on either party.
Notably, however, Defendants are not asserting that they did not receive a copy of the
summons and complaint. To the contrary, their pending motions suggest otherwise. In light of
the Sixth Circuit’s strong preference that cases be adjudicated on the merits, this contention is
not well-taken. See Coleman v. Shoney's, Inc., 79 Fed. Appx. 155, 157 (6th Cir. 2003).

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diversity jurisdiction pursuant to section 1332(a), the citizenship of the plaintiff must be
“diverse from the citizenship of each defendant” thereby ensuring “complete diversity.”
Caterpillar Inc. v. Lewis, 519 U.S. 61, 68, (1996) (citing State Farm Fire & Casualty Co.
v. Tashire, 386 U.S. 523, 531 (1967)).
Plaintiff’s complaint also fails to assert a federal question. Notably, district courts
have original federal question jurisdiction over cases “arising under the Constitution,
law, or treaties of the United States.” 28 U.S.C. §1331. Although the complaint invokes
the Court’s jurisdiction under the Civil Rights Act and Declaratory Judgment Act, the
complaint fails to include any facts and/or identify any constitutional rights which
Defendants have violated or any federal laws which Defendants have broken. As noted
by the City, construed liberally, Plaintiff’s complaint asserts only that Defendants are in
violation of the City of Cincinnati’s Charter, Articles I and IV, and R.C. §149.40. (Doc. 4,
¶¶ 16-18). In addition, none of Plaintiff’s three causes of action identify any federal
violations. He merely claims that Defendants have violated “clearly established law.”
(Doc. 4, ¶¶29-31.

Such conclusory allegations fail to establish a basis for federal

subjection matter jurisdiction.

In light of the foregoing, Plaintiff’s complaint fails to

establish subject matter jurisdiction, thereby warranting dismissal.

See Williams v.

Cincy Urban Apts., Case No. 1:10-cv153, 2010 WL 883856, at *2 (S.D. Ohio Mar. 9,
2010).
Furthermore, assuming arguendo, that Plaintiff has properly invoked the Court’s
jurisdiction, Plaintiff’s complaint also fails to state any federal claim upon which relief
may be granted. Thus, Plaintiff’s complaint is also properly dismissed pursuant to Rule

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12(b)(60 of the Federal Rules of Civil Procedure.
“The state's interest in maintaining accurate criminal records stems from the
valuable role they serve in effective law enforcement.

Such records meet the

compelling public need for an effective and workable criminal identification procedure.”
United States v. Davis, E.D.Mich. No. 81-CR-20033, 2008 WL 2714119 (July 7, 2008)
(citations omitted).

As noted in Plaintiff’s complaint, each time he discovered an

inaccuracy in his report, the reporting agency promptly corrected the error. Although it
is unfortunate that the error on his criminal history report occurred, Plaintiff does not
allege than the Clerk refused to correct his record. Notably, Plaintiff’s complaint fails to
contain sufficient factual allegations to state a claim against the City “that is plausible on
its face.” Iqbal at 199. Since the Plaintiff’s complaint fails to state a claim for relief upon
which relief may be granted, it should be dismissed. Moreover, the complaint fails to
establish that this Court has subject matter jurisdiction. Plaintiff asserts his claims fall
under federal law, but fails to identify any rights that have been violated or state any
question invoking federal law.
However, even assuming Plaintiff’s complaint stated a claim for relief; Defendant
Springs is entitled to qualified immunity. Qualified immunity is an affirmative defense
that shields government officials from civil liability unless their actions violate Plaintiff’s
“clearly established statutory or constitutional rights of which a reasonable person would
have known.” Bukowski v. city of Akron, 326 F.3d 702, 708 (6th Cir. 2003) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The question for the Court is whether
“the facts alleged show the employee’s conduct violated a constitutional right?” Marvin

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v. City of Taylor, 509 F.3d 234, 244 (6th Cir.2007). Plaintiff has produced no evidence
that Defendant Springs violated his statutory or constitutional rights. And, there is no
evidence to support that she knew anything about Plaintiff’s inaccurate record.
Therefore, she is entitled to qualified immunity.
With respect to the City of Cincinnati, the City can be liable for the unlawful or
unconstitutional actions of its employees even if the individual is qualifiedly immune.
Qualified immunity does not deny that the employee performed the alleged improper
conduct, only that she is not liable for damages. See Fenstermaker v. City of Dayton,
Ohio, 712 F.Supp. 639, 643, 1988 WL 156148 (S.D.Ohio 1988). To determine whether
a municipality may be liable for state torts, the Court must engage in a three-tiered
analysis. Hortman v. City of Miamisburg, 110 Ohio St.3d 194 (Ohio 2006). First, the
functions of political subdivisions are governmental functions and proprietary functions.
R.C. § 2744.02(A)(1). Unless an exception in R.C. § 2744.02(B) applies, the political
subdivision is not liable in damages allegedly caused by any act or omission of the
political subdivision or an employee in connection with a governmental or proprietary
function. The City of Cincinnati is a political subdivision and therefore is able to assert
immunity. R.C. § 2744.02(A)(1).
A governmental function is a function of a political subdivision “that is imposed
upon the state as an obligation of sovereignty and that is performed by a political
subdivision voluntarily or pursuant to legislative requirement.” R.C. § 2744.01(C)(1)(a).
R.C. § 109.571 establishes a compact between the state of Ohio and other states who
are members of the national crime prevention and privacy compact.

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The compact

requires Ohio to share criminal history records for purposes such as background and
employment checks. R.C. § 109.57 outlines the duties of the superintendent of the
bureau of criminal identification and investigation. One of the duties is to maintain all
pertinent information for all persons convicted of a felony.

Therefore, maintaining

criminal records is a governmental function according to R.C. § 2744.02(A)(1). Thus,
the City is immune from liability unless an exception to immunity applies.
The only exception that would apply in this case is R.C. 2744.02(B)(2) which
states that political subdivisions are “liable for injury, death, or loss to person or property
caused by the negligent performance of acts by their employees with respect to
proprietary functions of the political subdivisions.” Plaintiff however, has produced no
evidence of employee negligence. Therefore, since none of the exceptions listed in
R.C. 2744.02(B) apply, the City is entitled to immunity. As such, the Court does not
have to determine whether any of the defenses in R.C. 2744.02 apply.
III. CONCLUSION
Based on the foregoing, the undersigned concludes that the motion to dismiss is
well-taken. It is therefore RECOMMENDED that the Defendants’ motion to dismiss
(Doc. 17) be GRANTED, and this case be TERMINATED from the active docket of this
Court.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CHRISTOPHER KNECHT,
Plaintiff,

Civil Action No.1:12-cv-763

vs.

Spiegel, J.
Bowman, M.J.

CITY OF CINCINNATI, OHIO, et al.,
Defendants.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within 14 DAYS of the filing date
of this R&R. That period may be extended further by the Court on timely motion by
either side for an extension of time. All objections shall specify the portion(s) of the
R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within 14 DAYS after
being served with a copy of those objections. Failure to make objections in accordance
with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).