Minges et al v. Butler County Agricultural Society et al
Filing
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ORDER granting 11 Motion to Dismiss and denying 14 Motion to Amend the complaint. Signed by Chief Judge Susan J. Dlott. (wam1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Glen Minges, et al.,
Plaintiffs,
v.
Butler County Agricultural Society,
et al.,
Defendants.
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Case No. 1:13-cv-03
Chief Judge Susan J. Dlott
Order Granting Motion to Dismiss and
Denying Motion for Leave to Amend
Complaint
This matter is before the Court on Defendants’ Motion to Dismiss (Doc. 11) and
Plaintiffs’ Motion for Leave to Amend Complaint (Doc. 14). Plaintiffs Glen Minges, Layne
Minges, and Z.M., a minor, allege that Defendants Butler County Agricultural Society (“BCAS”)
and members of the BCAS Board of Directors violated their federal due process rights by
suspending them from participation in the livestock competitions at the Butler County Fair for
two years. Plaintiffs also assert state law claims for breach of contract and false light arising
from the same allegations. For the following reasons, the Court will GRANT the Motion to
Dismiss and DENY the Motion for Leave to Amend Complaint.
I.
BACKGROUND
A.
Factual Allegations
The following factual allegations from the Complaint (Doc. 1) are taken true for purposes
of the pending motions.
Plaintiff Z.M. is the minor child of Plaintiffs Glen and Layne Minges. (Id. at 4.)1
Defendant BCAS is a non-profit “county agricultural society formed and operated under the
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Citations to page numbers in documents filed in the CM/ECF system refer to the “PAGEID #.”
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auspices of Chapter 1711 of the Ohio Revised Code.” (Id. at 4, 6.) Defendants Dale Chalk,
Gary Fall, Dan Martin, Kent Taylor, David Vollmer, Doug Turner, Leon Simpson, Nick Forrest,
Bob Ruskaup, and Tim Van Gorden are all members of the BCAS Board of Directors (“BCAS
Board”). The BCAS and the BCAS Board are sometimes jointly referred to herein as the Fair
Board. Plaintiffs sued the BCAS Board members in their individual and official capacities. (Id.
at 4–6.)
The BCAS’s “stated purpose” is “the improvement of agricultural horticulture, better
livestock, uniform domestic science, together with all other industrial, commercial, and
educational interests of Butler County.” (Id. at 6.) The BCAS sponsors and conducts an annual
weeklong fair which has attracted crowds of 100,000 attendees. The fair includes a Junior Fair
Program with 1,400 members. (Id.) The fair “is intended to and does have a substantial positive
impact not only on the social and recreational life but also on the educational, commercial, and
economic concerns of the general community of Southwest Ohio.” (Id.)
The BCAS publishes an annual Butler County Fair Program Book (“Program Book”)
which contains rules and regulations for the fair exhibitions and competitions plus a Livestock
Exhibitor Agreement (“LE Agreement”). (Id. at 7.) The LE Agreement contains the following
provision relevant to participants who exhibit livestock at the Butler County Fair:
1. Fair Board, Exhibitor and Parents/Guardian shall abide by and comply with the
laws of the State of Ohio, regulations of the Ohio Department of Agriculture, the
rules, regulations and decisions of the Fair Board as set forth in the Butler County
Fair Program Book, this Agreement or otherwise established by Fair Board
decision from time to time.
(Id.)2
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Plaintiffs purported to attach a copy of the LE Agreement as Exhibit A to the Complaint, (Doc. 1 at 7), but the
Complaint filed in the CM/ECF system has no exhibits attached.
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In 2011, Z.M. participated in a local 4H program by feeding, washing, and grooming
“King,” a steer. Z.M., then fifteen years old, entered King in a livestock competition at the 2011
Butler County Fair. (Id. at 7.) The competition was a terminal competition which required the
Grand Champion Market Steer to be taken for slaughter after the competition. King was named
the Grand Champion Market Steer at the competition. Z.M.’s award included eligibility to
receive a monetary award or premium based on King’s market value. (Id.) BCAS rules required
that King undergo a urine analysis after the competition. The urine analysis revealed traces of
the drug Banamine in King’s system. (Id. at 7–8.)
Ohio Administrative Code § 901-19-19 imposes strict liability upon the exhibitor and
owners of livestock for the presence of unlawful substances found in livestock, but the penalty
can be abated in some circumstances. The regulation provides in full as follows:
This is a mandatory rule.
(A) Both the exhibitor and the owner of livestock are absolutely liable to
discipline under rule 901-19-21 of the Administrative Code for the presence of an
unlawful substance in livestock and unacceptable practices done to livestock.
(B) If the exhibitor or the owner was a minor child at the time the unlawful
substance or unacceptable practice was detected, the parent or guardian of the
person shall also be absolutely liable to discipline under rule 901-19-21 of the
Administrative Code for the presence of an unlawful substance in livestock and
unacceptable practices done to livestock.
(C) The director or the sponsor in imposing discipline under paragraph (A) of this
rule upon a person, shall mitigate the discipline imposed based upon one or more
of the following facts if established.
(1) The person did not introduce the unlawful substance into the animal or
do any unacceptable practices to the livestock;
(2) The person had no actual or constructive knowledge that the unlawful
substance was introduced into the livestock or that unacceptable practices
had been done to the livestock;
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(3) The unlawful substance was not introduced into the livestock and the
unacceptable practices were not done to the livestock through the person's
negligence.
Ohio Admin. Code § 901-19-19.
On November 1, 2011, the Ohio Department of Agriculture (“ODA”) provided the
Minges family with a notice of hearing advising that the ODA intended to disqualify Z.M. from
the fair and to require him to forfeit his awards. (Doc. 1 at 8.) Following the hearing, the
hearing officer found that there was no evidence that Z.M. or the Minges had administered
Banamine to King. The hearing officer also found that the fair officials had not followed a
mandatory protocol to engage the Minges family in the collection process. (Id.) He
recommended that the penalty be reduced to a letter of reprimand. (Id.) The ODA Director then
agreed that there was no evidence that the Minges or Z.M. intentionally violated the regulations,
but he rejected the recommendation to reduce the discipline to a letter of reprimand. (Id.)
Plaintiffs appealed the order of the ODA to the Franklin County, Ohio Court of Common
Pleas. (Id. at 9.) The court overturned Z.M.’s disqualification. (Id.) The court held that the
ODA failed to put Z.M. on notice of the specific charges against him and therefore violated his
right to due process. The court further held that there was not sufficient evidence to conclude
that Z.M. or the Minges violated a BCAS or ODA rule. (Id.)
On or about August 31, 2012, the Fair Board informed Plaintiffs that it intended to move
forward with disciplinary action notwithstanding the court decision. (Id.) The Fair Board held a
hearing on October 9, 2012. The Fair Board disqualified King from the 2011 Butler County
Fair, required Z.M. to forfeit his monetary awards or premiums, and suspended Z.M. and the
Minges family from participating in the livestock competitions at the 2012 and 2013 Butler
County Fairs. (Id. at 9–10.)
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B.
Procedural History
Plaintiffs filed the Complaint to initiate this lawsuit on January 3, 2013. They allege four
counts for relief: (1) violation of procedural due process under the 14th Amendment to the U.S.
Constitution pursuant to 42 U.S.C § 1983, (2) violation of substantive due process under the 14th
Amendment to the U.S. Constitution pursuant to 42 U.S.C. § 1983, (3) breach of contract, and
(4) false light publication. (Doc. 1 at 10–11.)
Defendants have moved to dismiss the Complaint. They assert that Plaintiffs failed to
state a claim upon which relief can be granted as to the due process claims, that the BCAS Board
members are immune from suit as to claims brought against them in their individual capacities,
and that the Court should decline pendent jurisdiction over the state law claims.
Plaintiffs oppose dismissal. Plaintiffs also have moved for leave to amend the
Complaint. Plaintiffs seek to add the following allegation:
Defendant Vollmer had testified against Z.M. during the administrative
hearing held by the ODA. In fact, Defendant Vollmer is a close relative of a
competitor who was the runner-up in the 2012 Butler County Fair Livestock
Competition won by Z.M. Moreover, Defendant Vollmer served as the collection
agent of the specimen taken from King following the competition, which led to
the steer’s disqualification. Notably, the administrative hearing officer
determined that fair officials, including Mr. Vollmer, failed to comply with the
state-mandated protocol for specimen collection. Nevertheless, Mr. Vollmer was
one of the board members of BCAS who participated in the decision to discipline
the Minges family.
(Doc. 14-1 at 68.) Plaintiffs do not seek to amend the existing counts for relief nor to add new
claims. The pending motions are ripe for adjudication.
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II.
ANALYSIS
A.
Defendants’ Motion to Dismiss
1.
Legal Standards Governing Motions to Dismiss
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A
district court “must read all well-pleaded allegations of the complaint as true.” Weiner v. Klais
and Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997). However, this tenet is inapplicable to legal
conclusions, or legal conclusions couched as factual allegations, which are not entitled to an
assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a). To withstand a dismissal motion, a complaint
“does not need detailed factual allegations,” but it must contain “more than labels and
conclusions [or] a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). “[T]he complaint must contain either direct or inferential
allegations respecting all material elements to sustain a recovery under some viable legal
theory.” Harvard v. Wayne Cty., 436 F. App’x 451, 457 (6th Cir. 2011) (internal quotation and
citation omitted). “Factual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. The Court does not require “heightened fact
pleading of specifics, but only enough facts to state a claim for 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.” Iqbal, 556 U.S. at 678.
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2.
Substantive and Procedural Due Process Claims
Plaintiffs assert claims for relief pursuant to 42 U.S.C. § 1983 for violations of procedural
and substantive due process. Section 1983 provides a cause of action only to individuals whose
constitutional rights are violated by persons acting under the color of state law. 42 U.S.C.
§ 1983. Defendants move to dismiss the due process claims on multiple grounds. To begin,
Defendants assert that they did not act under the color of state law based on the facts pleaded.
A private individual or entity acting on its own cannot deprive a citizen of his
constitutional rights. Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-37 (1982); see also
Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000). However, under § 1983, a
private party’s actions may constitute state action when those actions are “fairly attributable to
the state.” Lugar, 457 U.S. at 937. There are three accepted tests for determining whether
private action is fairly attributable to the state: (1) the symbiotic relationship or nexus test; (2) the
public function test; and (3) the state compulsion test. See Wittstock v. Mark A. Van Sile, Inc.,
330 F.3d 899, 902 (6th Cir. 2003); Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir. 2003)
(en banc). Both parties agree that the relevant test here is the symbiotic relationship or nexus
test. “Under the nexus test, the action of a private party constitutes state action when there is a
sufficiently close nexus between the state and the challenged action of the regulated entity so that
the action of the latter may be fairly treated as that of the state itself.” Lansing, 202 F.3d at 830
(internal quotation and citation omitted).
The Court is not writing on a clean slate when the Court determines whether a county
agricultural society has acted under the color of state law. In 1977, a court in the Southern
District of Ohio held that the Ohio Exposition Commission, an entity created by Ohio statute to
manage the Ohio State Fair, was a state actor for purposes of 1983. Int’l Soc’y for Krishna
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Consciousness, Inc. v. Evans, 440 F. Supp. 414, 416, 419 (S.D. Ohio 1977). Two facts were
relevant to the court’s holding. First, the Ohio Exposition Commission conceded it was
operating under color of state law. Id. at 419. Second, the annual budget for the Commission
came from a direct subsidy from the state legislature. Id.
Twenty years later, an Ohio appeals court held in Yiamouyiannis v. Lowe, No. 96CAE05-024, 1997 WL 5281 (Ohio App. Jan. 3, 1997), that a county agriculture society acted under
color of state law. In Yiamouyiannis, the plaintiff sued the agricultural society after he was
removed from the county fair grounds for violating the fair’s regulations against the distribution
of literature outside of the confines of rented exhibition space. Id. at *1. The state court found
that a § 1983 claim could proceed against the agricultural society when the summary judgment
evidence showed that the agricultural society was established under state law, it received
approximately $42,000 in state and county funding for the fair, it received rent-free use of county
property for the fairgrounds, and the State of Ohio paid the insurance on the fairground
buildings. Id. at *2.
Three years after Yiamouyiannis, the Sixth Circuit discussed in Lansing the issue of
whether state regulation was sufficient to satisfy the nexus test. The Lansing case involved the
actions of a non-profit corporation, funded in part by state and local governments, at the festival
it sponsored which was held on public property. 202 F.3d at 825–26. The court relied upon
decisions from both the Sixth Circuit and the Supreme Court which had been issued after the
1977 Evans district court decisions. Id. at 830. The Lansing court concluded that it had become
“well-established that state regulation, even when extensive, is not sufficient to justify a finding
of a close nexus between the state and the regulated entity.” Id. The court further stated that it
was “[e]qually well-established that neither public funding nor private use of public property is
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enough to establish a close nexus between state and private actors.” Id. The Lansing court
determined that the non-profit corporation had not engaged in state action when it removed a
person engaging in religious speech from an area just outside the festival entrance. Id. at 826–
27, 834.
The Southern District of Ohio applied the Lansing decision in Farmer v. Pike County
Agricultural Society, No. 2:05-cv-664, 2006 WL 1476186 (S.D. Ohio May 24, 2006). In
Farmer, the plaintiffs sued the Pike County Agricultural Society (“PCAS”) for a violation of due
process after being banned from participating in the livestock exhibitions at the county fair.
2006 WL 1476186, at *1. The Court examined whether the PCAS had acted under the color of
state law as necessary to impose liability pursuant to § 1983. Id. at 6–7. The court cited Lansing
for the propositions that “the mere presence of state regulation, even if extensive, does not, by
itself, justify a finding of close nexus” and that “public funding, or the private use of public
property” is not sufficient. Id. at *6. Accordingly, the court held that the fact that “the State of
Ohio regulates or may fund county agriculture societies is, by itself, insufficient to establish the
nexus.” Id. at *7. The court concluded that the record at summary judgment was devoid of
evidence from which the sufficiently close nexus between PCAS’s challenged action and the
State of Ohio could be inferred. Id. The Farmer court purported to distinguish the Ohio court
Yiamouyiannis decision on the facts, but it appears to have found it legally insufficient to
establish a state nexus each of the factors found to be sufficient in Yiamouyiannis. Id.
In this case, Plaintiffs do not plead sufficient facts to establish a close nexus between the
State of Ohio and the challenged action of the BCAS. Plaintiffs allege that the actions taken by
the BCAS Board members were “taken under the color of state law.” (Doc. 1 at 4–6). This
allegation is conclusory and not accepted as true for purposes of a dismissal motion. See Iqbal,
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556 U.S. at 678. Plaintiffs plead factually only that the BCAS is “formed and operated” under
Ohio Revised Code chapter 1711. (Doc. 1 at 4.) The legal analysis in Farmer and Lansing is
controlling as to this fact allegation. State regulation of the BCAS is not sufficient to establish
that Defendants acted under the color of state law when they disciplined Z.M. and the Minges.
See Lansing, 202 F.3d at 830; Farmer, 2006 WL 1476186, at *7. Plaintiffs attempt to
distinguish Farmer on the grounds that the Farmer case was resolved at summary judgment and
after discovery. However, the defendants in Farmer did not file a Rule 12 dismissal motion so
the fact that the case proceeded to summary judgment is not relevant. See No. 2:05-cv-664 (S.D.
Ohio).
The Court holds that Plaintiffs failed to plead facts sufficient to establish that the BCAS
or the BCAS Board members acted under the color of state law when they disciplined the
Minges for violation of the livestock exhibition regulations. Accordingly, Plaintiffs have failed
to state a claim upon which relief can be granted as to due process claims.3 The Court need not
examine Defendants’ alternative arguments that Plaintiffs failed to plead sufficient facts to prove
substantive or procedural due process violations. Likewise, the Court need not examine whether
the individual Defendants were entitled to qualified immunity if they had violated Plaintiff’s
constitutional rights. The Court will grant the Motion to Dismiss as to the federal due process
claims.
3.
State Law Claims
Defendants next argue that the Court should decline to exercise supplemental jurisdiction
over Plaintiffs’ state law claims for breach of contract and false light. Plaintiffs assert in the
Complaint that the Court has jurisdiction over the state law claims only on the basis of 28 U.S.C.
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In so holding, the Court is not passing upon the propriety of the Defendants’ actions in disciplining Z.M. and the
Minges.
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§ 1367. (Doc. 1 at 3.) Pursuant to § 1367, a district court can decline to exercise supplemental
jurisdiction over a state law claim if the court “has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3). The Court is dismissing the federal due process claims
here pursuant to Rule 12(b)(6). Accordingly, the Court will decline to exercise supplemental
jurisdiction and will grant the Motion to Dismiss as to the state law claims as well.
B.
Plaintiffs’ Motion for Leave to Amend Complaint
Finally, the Court must resolve the Motion for Leave to Amend Complaint. The Federal
Rules of Civil Procedure provide that a district court should “freely grant leave when justice so
requires.” Fed. R. Civ. P. 15(a). Plaintiffs here seek leave to add one set of new allegations
regarding the participation of Defendant Vollmer in the disciplinary investigation of and
proceedings against Z.M. and the Minges. (Doc. 14-1 at 68.) The new allegations are not
relevant to an analysis of whether Defendants acted under the color of state law for purposes
§ 1983 due process claims. The Court would dismiss Plaintiffs’ due process claims even if it
granted the leave to amend. Accordingly, the Court will deny the Motion for Leave to Amend
Complaint as futile.
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III.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. 11) is GRANTED.
Plaintiffs failed to state a claim upon which relief can be granted on the federal due process
claims. The Court declines to exercise supplemental jurisdiction over the remaining state law
claims. Further, Plaintiffs’ Motion for Leave to Amend Complaint (Doc. 14) is DENIED as
futile.
IT IS SO ORDERED.
____s/Susan J. Dlott__________
Chief Judge Susan J. Dlott
United States District Court
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