Dunning et al v. Varnau et al
Filing
30
ORDER granting 12 Defendant Brown County's Motion to Dismiss; Brown County and the Brown County Commissioners are DISMISSED as a party and the claims brought against Judith A. Varnau and Dennis Varnau in their official capacity are DISMISSED. Judith and Dennis Varnau's Motion to Dismiss 14 is granted in part and denied in part; Plaintiffs' claims against the Varnaus under 42 U.S.C. § 1983 and 42 U.S.C. § 1985 are DISMISSED fo r failure to state a claim and plaintiffs' claim for Amendment of Coroner's Verdict is DISMISSED for lack of jurisdiction. Plaintiffs' claims for defamation and civil conspiracy under Ohio law remain pending. Signed by Judge Michael R. Barrett on 9/30/15. (sct)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
George Dunning, Jr., et al.,
Case No. 1:14cv932
Plaintiffs,
Judge Michael R. Barrett
v.
Judith A. Varnau, et al.,
Defendants.
OPINION & ORDER
This matter is before the Court upon Defendant Brown County and the Brown
County Board of County Commissioner’s (“Brown County”) Motion to Dismiss. (Doc.
12). Also before the Court is Defendants Judith and Dennis Varnau’s (“the Varnuas”)
Motion to Dismiss. (Doc. 14). These motions have been fully briefed. (Docs. 23, 24,
25, 27).
I.
BACKGROUND
This case arises from the Brown County Coroner’s investigation and determination
of the cause of death of Zachary Goldson, an inmate found dead in his cell at the Brown
County Jail. The following facts are contained in the Amended Complaint. (Doc. 10).
Dwayne Wenninger is the Brown County Sheriff.
(Doc. 10, ¶ 9).
In 2008,
Defendant Dennis Varnau ran against Wenninger and was unsuccessful in removing him
from office, losing both the election and a series of legal challenges against Wenninger. 1
1
Varnau filed a protest against Wenninger’s candidacy, claiming that Wenninger failed to
meet certain requirements when he originally ran for sheriff in 2000. The board of elections
denied his protest and he proceeded to seek a writ of mandamus to compel the board to accept
the protest. The writ was dismissed by the Brown County Court of Common Pleas because
(Id., ¶¶ 10-11).
In November 2012, Defendant Dr. Judith Varnau, Dennis Varnau’s wife, was
elected Brown County Coroner.
(Id., ¶ 13).
Plaintiffs claim that before becoming
coroner, Dr. Varnau did not have any formal anatomical, clinical or forensic pathology
experience. (Id.) Dr. Varnau has authorized her husband Dennis to act on her behalf.
(Id., ¶ 4).
Zachary Goldson was arrested on September 26, 2013 for possessing a
shortened .22 caliber firearm. (Id., ¶ 18). Before his arrest, Goldson planned to harm
himself, even specifying what shoes he wanted to be buried in. (Id., ¶ 19). Goldson
knew several law enforcement agencies were investigating him for his involvement in
other crimes, including ten felony charges related to burglary, theft, receiving stolen
property and possession of controlled substances. (Id.)
On October 4, 2013, Goldson was taken to the Southwest Regional Medical
Center (“SRMC”) after he swallowed a pen, toothbrush and plastic tube. (Id., ¶ 20).
Once the objects were removed, Goldson was returned to jail and placed on medical
watch. (Id.) Goldson was placed in a cell away from the general population although,
unbeknownst to Plaintiffs, Goldson suffered from anxiety anytime he was left alone. 2
there was a legal remedy available through a quo warranto action and because Varnau’s protest
violated Ohio Rev. Code § 3513.05. The Twelfth Appellate District affirmed the dismissal.
After Wenninger won the election, in February of 2009, Varnau filed a complaint for a writ
of quo warranto to the court of appeals. Varnau sought to remove Wenninger from office and
replace Wenninger with himself as sheriff, claiming he was the only lawful candidate in the 2008
election.
In State ex rel. Varnau v. Wenninger, Brown App. No. CA2009-02-010,
2010-Ohio-3813. The court of appeals denied the writ because it was untimely and granted
summary judgment. The Ohio Supreme Court affirmed the court of appeals’ decision.
2
Letters taken from Goldson’s cell included statement such as:
2
(Id., ¶ 21).
Due to continued complaints about his abdomen, Plaintiff Bradley “Zane” Schadle
arranged for Deputy Travis Justice to take Goldson back to SRMC. (Id., ¶ 22). SRMC
referred Goldson to Anderson Mercy Hospital for further treatment. (Id.) On the walk
back to the police cruiser at SRMC, Goldson unlocked his handcuffs and shackles and
struck Deputy Justice from behind. (Id., ¶ 23). Goldson then cut Deputy Justice near
his left eye, attempted to gain control of his firearm and pinned him to the ground. (Id.)
Four hospital staff members witnessed the altercation, called 9-1-1 to report a fight and
then proceeded to help restrain Goldson and prevent his escape. (Id.) At 2:26 a.m. on
October 5, 2013, Plaintiff Deputy Ryan Wedmore and Corporal Larry Meyer from the
Brown County Sheriff’s Office arrived at the scene. (Id., ¶ 25). Two officers from the
Georgetown Police Department were present as well. (Id.) The officers subdued and
“I’m so f****** sad in here because like I said I am all done already after being
locked up less than 2 weeks;”
“I cry myself to sleep every night because I know I lost you both;”
“I can’t even write this letter because I’m breaking down after each line I write;”
“I’m hurting so bad right now & it f**** me up that I have not heard a word from
you…;”
“I need you to come visit me a.s.a.p. I have done lost my girlfriend and feel like
sh**;”
“I’m looking at 14 years 3 of my cases carry a mandatory 3 year sentence so
regardless I’m not getting out until 2022 no matter what;”
“sad, mad, depressed and hurt;”
“don’t forget about me, please;” and
“it’s gonna break my heart.”
In addition, those close to Goldson overheard him talking about how he would rather kill himself or
hurt himself than go back to prison.
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re-cuffed Goldson. (Id., ¶ 23).
Goldson, after he was restrained, apologized for what he did and explained to
officers that he had a sick child at home dying of SIDS. (Id., ¶ 25). Based on his recent
history and comments that he had previously made regarding taking his life, officers
believe that Goldson assaulted Deputy Justice in the hope that he would be shot so that
he could avoid taking his own life. (Id., ¶ 24).
At 2:32:28 a.m. on October 5, 2013, six minutes after Wedmore first learned that
Goldson assaulted Deputy Justice, Goldson and the officers pulled into sally port at the
Brown County Jail. (Id., ¶ 27). Jail surveillance footage shows Goldson’s movements
about the common areas of the jail, but cameras are not permitted to film inside the cells.
(Id., ¶ 29). At 2:32:54 a.m., Plaintiffs Corporal Jason Huff and Wedmore observed
Goldson being placed in his cell by Plaintiffs Zane Schadle and Deputy George “Bill”
Dunning. (Id.) Schadle and Dunning were in Goldson’s cell for 96 seconds, removing
his restraints and confiscating his shoes and blanket. (Id., ¶ 28). The officers left
Goldson’s cell at 2:34:30 a.m. and the cell door closed at 2:34:36 a.m. (Id.)
Twenty-one minutes later, at 2:58:18 a.m. on October 5, 2013, Schadle found
Goldson hanging from a knotted bed sheet wrapped around a steel pipe located between
the ceiling and the escutcheon plate above the sprinkler head. (Id., ¶ 30). Correction
Officer Sarah McKenzie and Dunning entered the cell with Schadle.
(Id., ¶ 31).
Dunning immediately cut down Goldson while Schadle and McKenzie held Goldson.
Upon being cut down, Goldson was handcuffed to guard against an assault.
(Id.)
Schadle immediately performed CPR in attempt to resuscitate Goldson.
(Id.)
McKenzie called the Communications Center for life squad. (Id., ¶ 32). Goldson was
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pronounced dead by the responding EMS personnel at 3:11 a.m. (Id.)
The Sheriff’s Office reported the in-custody death to Dr. Varnau.
(Id.)
The
Sherriff’s Office also requested an independent review of Goldson’s death by the Ohio
Bureau of Criminal Investigations (“BCI”).
(Id., ¶ 33).
All video surveillance was
preserved and given to BCI for their investigation. (Id.)
Just after 11:00 a.m. on October 5, 2013, the Montgomery County Coroner’s Office
performed Goldson’s autopsy.
(Id., ¶ 34).
Dr. Susan Allen, who is a forensic
pathologist and certified in clinical, anatomic and forensic pathology, performed the
autopsy. (Id.) The autopsy revealed a ligature mark and abrasions on the front of the
neck, consistent with Goldson hanging himself with a bed sheet.
There were also
abrasions on his ankles, which were attributed to wearing shackles. (Id.) There was no
other bruising or internal injuries. (Id.) Dr. Allen’s opinion, to a reasonable degree of
medical certainty, was that the cause of Goldson’s death was “hanging by the neck” and
consistent with a suicide. (Id.)
Dr. Kent Harshbarger, the Montgomery County Coroner who is also certified in
clinical, anatomic and forensic pathology, reviewed the autopsy performed by Dr. Allen.
(Id., ¶ 35). The first draft of the autopsy report specified hanging as the cause of death
until Dr. Varnau expressed her disagreement. (Id.) The result of their discussion was a
complete omission of the cause of death in the autopsy report. (Id.)
After hearing about Goldson’s death, Dr. Varnau went to the Brown County jail and
inspected Goldson’s cell and began questioning the factual accounts of the events that
had taken place that morning. (Id., ¶ 36). On October 6, 2013, Dr. Varnau reported
Goldson’s death to Jessica Little, the Brown County Prosecutor, and told Little that she
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learned from an anonymous source that a deputy stated that there was going to be a
“block party” for Goldson when he returned to jail after assaulting Deputy Justice. (Id., ¶
37).
Fifty-three days later, on November 27, 2013, Dr. Varnau requested the video
footage of the hallway adjacent from Goldson’s cell. (Id., ¶ 38). The Sheriff’s Office
was unable to provide that footage because, as per standard operating procedure and
automated controls in the video surveillance system, the footage had been taped over
after thirty days. (Id.) However, BCI was still in possession of a copy of the requested
footage, so Deputy John Schadle directed Dr. Varnau to get the video footage from BCI.
(Id.)
On November 30, 2013, Dr. Varnau wrote on Goldson’s death certificate that the
manner of death was a homicide by strangulation. (Id., ¶ 39). Dr. Varnau specified that
the strangulation was caused by a nylon leash, called a hobble strap, which is used by
police officers as a restraint. (Id.) The Varnaus authored a “Coroner’s Investigative
Report on Death of Zachary Goldson—October 5, 2013” based on the information they
collected from the investigation. (Id., ¶ 40). The Varnaus published this report knowing
that BCI was still conducting its investigation and Prosecutor Daniel “Woody” Breyer had
been appointed to present evidence for possible criminal charges against Plaintiffs to the
grand jury. (Id.)
The Varnau’s report indicated that the evidence clearly demonstrates that Goldson
could not have committed suicide. The report stated that Goldson was found hanging
from the sprinkler head, which can only bear forty pounds.
(Id., ¶ 41).
However,
Goldson was found hanging from a bed sheet wrapped around a steel pipe between the
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escutcheon plate and the ceiling.
(Id.) According to the Varnaus’ report, Goldson
would not have been able to tie the bed sheet to the sprinkler assembly in less than six
minutes. (Id., ¶ 42). The report cites to an anonymous consultant who said that he was
not able to fasten a sheet to the sprinkler without falling down. (Id.) The report also
referenced four tight knots in the bed sheet, even though the BCI investigation did not
indicate there were any knots in the bed sheet.
(Id.)
The report concludes that
Goldson’s cell was staged prior to Goldson’s return. (Id.)
The report also accused Plaintiff John Schadle of destroying evidence and
covering up Goldson’s murder by replacing the sprinkler head in Goldman’s cell. (Id., ¶
47). The Varnaus also called into question the actions of Officer Schadle upon finding
Goldson, denying that he cuffed Goldson before administering CPR. (Id., ¶ 48). The
report notes, “[i]f CO Schadle was concerned about Mr. Goldson coming to in a fighting
condition, it would have been much quicker to attach handcuffs to one hand and the other
to the clevis on the bunk wall, allowing Mr. Goldson to lie on his back for CPR.” (Id.)
Upon examination of the body in their livor mortis analysis, the Varnaus concluded
that Goldson must have died on his backside due to the lack of sufficient blood pooling on
the feet and legs, and more than expected pooling on the posterior side of Goldson’s
body.
(Id., ¶ 49).
The report does not state when the livor mortis analysis was
conducted. (Id.) The examination by Drs. Allen and Harshbarger revealed nothing
inconsistent with suicide. (Id.) The Varnau report also questions whether the noose
was the strangulation device because the Varnaus found a matrix patter imprint on the
side of Goldson’s neck, which would be consistent with a nylon hobble strap. (Id., ¶ 50).
The Varnaus explained that they conducted interviews with ex-inmates at the Brown
7
County Jail who told them that the officers would tie hobble straps around their necks and
lead them like dogs. (Id.) Drs. Allen and Harshbarger did not find a matrix patter imprint
on Goldson’s neck. (Id.)
The Varnaus contacted newspapers and television stations criticizing the Sheriff’s
Office of their handling of the video footage. (Id., ¶ 59). Dr. Varnau was quoted as
saying, “[n]ormally in any potential homicide investigation video recorders would be
immediately quarantined by law enforcement personnel, including the Sheriff’s Office in
this case, so that it could not be accessed in any way immediately upon discovery of a
death in the jail.”
(Id.)
Further, Dr. Varnau stated to the press that Chief Deputy
Schadle took inappropriate actions to “protect his murdering son.” (Id.)
In addition, the Varnaus’ report was published by news agencies and the Varnaus
gave statements to the press before the grand jury had ruled on whether or not to indict
any law enforcement officers. (Id., ¶ 56). Further, the Varnaus named specific officers
to the press, sent emails with attachments and their investigatory findings to BCI, and
sent the coroner’s report including surveillance footage, phone calls and autopsy and
scene photos to the press.
(Id. ¶¶ 61-63).
Their findings and reports were also
published on the Varnau’s website www.varnau.us. (Id. ¶ 70).
On December 11, 2014, the grand jury returned with a no bill because they did not
find sufficient probable cause to indict any of the Plaintiffs. (Id., ¶ 58).
Plaintiffs claim that as a result of the Varnaus’ actions, Plaintiffs have been referred
to as the “Death Squad” by the community. Plaintiffs also claim that the citizens of
Brown County have been uncooperative with law enforcement, and labeled them as
murderers, manipulative and corrupt. Further, Plaintiffs’ children have been harassed at
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school by their peers.
Plaintiffs bring six claims against Defendants: (1) 42 U.S.C. § 1983; (2) 42 U.S.C. §
1985; (3) Defamation; (4) Civil Conspiracy; (5) Amendment of Coroner’s Verdict; and (6)
Punitive Damages. Plaintiffs have brought their claims against the Varnaus in their
individual and official capacity. Plaintiffs’ claim for amendment of coroner’s verdict is
brought only against Dr. Varnau.
II.
ANALYSIS
A. Standard of Review
Defendants have moved for dismissal based on lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1) and the failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).
“Challenges to subject-matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) ‘come in two varieties: a facial attack or a factual attack.’” Carrier Corp. v.
Outokumpu Oyj, 673 F.3d 430, 440 (6th Cir. 2012) (quoting Gentek Bldg. Prod., Inc. v.
Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)). A facial attack challenges the
sufficiency of the pleading and goes to whether or not the plaintiff laid a sufficient basis for
subject matter jurisdiction. Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). All
of the allegations in a facial analysis must be taken as true, like that of a 12(b)(6) motion.
Carrier, 673 F.3d at 440; see also Lovely v. United States, 570 F.3d 778, 781 (6th Cir.
2009), cert. denied, 558 U.S. 1111 (2010).
A factual attack, on the other hand,
challenges the actual existence of subject matter jurisdiction. Cartwright, 751 F.3d at
759. In a factual attack, the court may “weigh evidence to confirm the existence of the
factual predicates for subject-matter jurisdiction.” Carrier, 673 F.3d at 440. “Plaintiff
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bears the burden of establishing that subject matter jurisdiction exists.” Cartwright, 751
F.3d at 760.
In reviewing a motion to dismiss for failure to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6), this Court must “construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true and draw all reasonable inferences
in favor of the plaintiff.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th
Cir. 2008) (quoting Directv, Inc. v Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However,
legal conclusions conveyed as factual allegations do not be accepted as true, rather the
reviewing court is allowed to draw on its own judicial experience and common sense in
determining whether or not the pleader can obtain any relief based on the purported facts.
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-950 (2009).
“[T]o survive a motion to dismiss a complaint must contain (1) ‘enough facts to
state a claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of
action’s elements,’ and (3) allegations that suggest a ‘right to relief above a speculative
level.’” Tackett v. M & G Polymers, USA, LLC, 561 F.3d 478, 488 (6th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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.” Iqbal, 129
S.Ct. at 1949. Although the plausibility standard is not equivalent to a “‘probability
requirement’ . . .it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. at 1949 (quoting Twombly, 550 U.S. at 556).
B. Brown County
The County argues that Plaintiffs’ allegations in the Amended Complaint fail to
10
state a claim against them, and dismissal is proper under Federal Rule of Civil Procedure
12(b)(6).
1. Section 1983
For a county to be liable under 42 U.S.C. § 1983, a plaintiff must show that the
alleged injuries were inflicted pursuant to a governmental custom, policy or practice.
Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978) (explaining that a
county policy must have been a moving force behind the alleged constitutional violation).
A plaintiff may show that the municipality was responsible in four ways: “(1) the existence
of an illegal official policy or legislative enactment; (2) that an official with final decision
making authority ratified illegal actions; (3) the existence of a policy of inadequate training
or supervision; or (4) the existence of a custom of tolerance or acquiescence of federal
rights violations.” Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013). Plaintiffs
argue that Dr. Varnau, and by some unspecified extension, Dennis Varnau have final
decision-making authority for the County.
“[A] municipality cannot be held liable solely because it employs a tortfeasor—or,
in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell, 436 U.S. at 691. Instead, “[m]unicipal liability may attach for
policies promulgated by the official vested with final policymaking authority for the
municipality.” Miller v. Calhoun Cnty., 408 F.3d 803, 813 (6th Cir. 2005) (citing Pembaur
v. City of Cincinnati, 475 U.S. 469, 482-83, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)). For
a decision by a municipal official to be considered a “policy” decision, state or local law
must give the official the authority to choose from various alternatives when making that
particular decision. Pembaur, 475 U.S.at 483. Whether an official is a “policymaker” is
11
a question of state law. Id.
The County argues that Plaintiffs’ Amended Complaint fails to allege facts to
support the conclusion that Dr. Varnau is a county policymaker.
In Jorg v. City of Cincinnati, the Sixth Circuit found that a county coroner is not
acting as a policymaker when determining and reporting causes of death.
145
Fed.Appx. 143, 147 (6th Cir. 2005). The court noted that state law “clearly mandates
that the Coroner must determine the cause of death.” Id. (citing Ohio Rev. Code Ann. §
313.09). The court explained that “[w]hen municipal officials have been deemed to be
making policy decisions in the past, it has not been because they were vested with the
authority to make factual assessments of a particular situation, but rather, because they
were vested with the authority to respond to that situation.” Id. at 146-47. “Accordingly,
there is a distinction between “policymaking” authority, which entails a certain amount of
discretion to choose among various plausible alternatives, and ‘factfinding’ authority,
which involves assessing the fixed realities of a situation.” Id. at 147 (citing Merriam
Webster's Collegiate Dictionary 416 (1995) (defining “fact finder” as “one that tries to
determine the realities of a case, situation . . . an impartial examiner designated by a
government agency to appraise the facts underlying a particular matter”)). Thus, while
other activities of the coroner might constitute policymaking, determining the cause of
death is not one of them. Id. The court explained:
Any malfeasance on the Coroner's part therefore did not result from him
exercising vested policymaking authority. While he may have “chosen” to
falsify the report, as alleged, the state and local laws do not offer him any
discretion to take this course of conduct after the initial factual
determination is made.
Id.
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Plaintiffs attempt to distinguish Jorg by arguing that their claim is not solely based
on Dr. Varnau's determination regarding the cause of death. Instead, Plaintiffs argue,
Dr. Varnau exercised her policymaking authority by using her website to post and solicit
information regarding the Goldson death, misconstrued facts obtained through her
investigation, accused innocent people of murder, and used the coroner's office to further
her family feud with the Sheriff.
Plaintiffs argue that state law gives the coroner
discretion to solicit sources of information and determine the manner in which to
investigate the death.
However, “mere authority to exercise discretion while performing particular
functions does not make a municipal employee a final policymaker unless the official's
decisions are final and unreviewable and are not constrained by the official policies of
superior officials.” Feliciano v. City of Cleveland, 988 F.2d 649, 655 (6th Cir. 1993)
(citing City of St. Louis v. Praprotnik, 485 U.S.112,t 127, 108 S.Ct. 915, 99 L.Ed.2d 107
(1988)).
“Discretion to act is not to be confused with policymaking authority; no
municipal liability results where an official merely has discretion to act because subjecting
a municipality to liability in such a situation would be ‘indistinguishable’ from respondeat
superior liability.” Id. (citation omitted). The court in Jorg specifically addressed similar
acts of publicizing false information:
although Jorg claims that the Coroner's misconduct included his publicizing
the false cause of death, Jorg has pointed to no state or local law which
vests the Coroner with any policymaking authority in this regard. If the
Coroner answered the City Council's questions about Owensby's cause of
death, these statements are outside the realm of his statutory duties.
Moreover, the most damaging conduct by the Coroner would be his alleged
falsification of the autopsy report, and the report is automatically public
record. Ohio Rev.Code Ann. § 313.10. As previously discussed, the
Coroner was not a policymaker with regards to his cause of death
determinations.
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Id. Moreover, Dr. Varnau's misuse of her power to advance a private agenda does not
create a “policy or custom” of the county. See Wooten v. Logan, 92 Fed.Appx. 143,
145-47 (6th Cir. 2004) (rape committed by a county sheriff could not be considered part of
the county's “policy or custom.”). Therefore, the Court concludes that Plaintiffs cannot
maintain their Section 1983 claim against the County.
2. Section 1985
Section 1985 prohibits conspiracies interfering with civil rights. 42 U.S.C. § 1985.
Plaintiffs contend that Defendants’ conspiracy to incite governmental prosecution against
them prevented “them from performing their duties by making the public believe the false
accusations against them, specifically, causing Zachary Goldson’s death, and tampering
with evidence.” (Doc. 10, ¶ 89). This claim is ostensibly brought pursuant to the first
section of 42 U.S.C. § 1985:
(1) Preventing officer from performing duties.
If two or more persons in any State or Territory conspire to prevent, by
force, intimidation, or threat, any person from accepting or holding any
office, trust, or place of confidence under the United States, or from
discharging any duties thereof; or to induce by like means any officer of the
United States to leave any State, district, or place, where his duties as an
officer are required to be performed, or to injure him in his person or
property on account of his lawful discharge of the duties of his office, or
while engaged in the lawful discharge thereof, or to injure his property so as
to molest, interrupt, hinder, or impede him in the discharge of his official
duties . . .
42 U.S.C. § 1985(1). As one district court has recently explained:
The overwhelming weight of authority holds that Section 1985(1) is not
applicable when the plaintiff is not a federal officer. See Dallas v. Holmes,
137 F. App'x 746, 752 n. 5 (6th Cir. 2005) (holding that Section 1985(1)
prohibits interference with the official duties of federal officers); Bennett v.
Batchik, 191 U.S.App. LEXIS 13685, at *20, 1991 WL 110385 (6th Cir.
1991) (holding that Section 1985(1) claims relate specifically to federal
14
officers); Benningfield v. City of Houston, 157 F.3d 369, 378 (5th Cir. 1998)
(Ҥ 1985(1) applies in cases of interference with federal officials in the
performance of their duties. § 1985(1) is not applicable to state officials.”);
Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d 711, 717 (9th
Cir. 1981) (“There is nothing in the language of the statute nor in the
legislative history to support ... that § 1985(1) does not apply exclusively to
federal officers.”).
Trayer v. Klopfenstein, No. 3:13 CV 2581, 2014 WL 3543779, at *2 (N.D. Ohio July 16,
2014). Plaintiffs do not allege that they are federal officers. Therefore, Plaintiffs have
failed to state a claim under 42 U.S.C. § 1985(1) against the County.
3. State law claims
The County argues that it is entitled to immunity from Plaintiffs’ state law claims of
civil conspiracy and defamation under Ohio’s Political Subdivision Tort Liability Act.
The Sixth Circuit has explained that under this Act:
Ohio uses a three-tier analysis to determine if a person or entity is immune.
Lambert [v. Clancy], 927 N.E.2d at 588. Under Tier 1, political subdivisions
and their employees receive a general grant of immunity for acts in
connection with a government function. Id.; see also Ohio Rev. Code Ann.
§ 2744.02(A)(1) (2013). Tier 2 lists five exceptions to this immunity.
Lambert, 927 N.E.2d at 588; see also Ohio Rev. Code Ann. § 2744.02(B).
If an exception applies, courts then look to Tier 3 to see if immunity is
reinstated under any of the defense provisions in Ohio Revised Code §
2744.03. Lambert, 927 N.E.2d at 588.
Range v. Douglas, 763 F.3d 573, 582-83 (6th Cir. 2014).
There is no dispute that the County is entitled to a general grant of immunity under
Ohio Revised Code § 2744.02(A)(1). However, Plaintiffs argue that in Tier 2, the second
exception applies. This exception to the general grant of immunity reads: “Except as
otherwise provided in sections 3314.07 and 3746.24 of the Revised Code, 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
15
the political subdivisions.” Ohio Rev. Code § 2744.02(B)(2). Plaintiffs point to two
“proprietary functions” which form the basis of the exception: (1) creating and maintaining
a website and (2) drafting and disseminating materials through a website and to the
press.
However, as this Court has previously recognized, under Ohio law, defamation is
classified as an intentional tort, and Ohio courts have held that there are no exceptions to
immunity for intentional torts.
Weldon v. Warren Cnty. Children Servs., No.
1:12-CV-279-HJW, 2012 WL 5511070, at *10 (S.D. Ohio Nov. 14, 2012) (citing Cooper v.
Grace Baptist Church, 81 Ohio App.3d 728, 737, 612 N.E.2d 357 (Ohio Ct. App, 1992);
Holzbach v. Jackson Twp., 2000 WL 1035798 (Ohio App. 5 Dist.), discretionary review
denied, 90 Ohio St.3d 1468, 738 N.E.2d 381 (2000)). Plaintiffs have not explained how
the intentional acts which form the basis of their defamation claim involved the “negligent”
performance of a proprietary function. Therefore, the exception found in Ohio Revised
Code § 2744.02(B)(2) does not apply to Plaintiffs’ claim for defamation.
Similarly, this Court has explained:
A civil conspiracy by its very nature requires an agreement. Black's Law
Dictionary (8th ed. 2004 Westlaw). An agreement to commit negligence is
not possible and, as such, a civil conspiracy must be a conspiracy to commit
some type of underlying intentional tort. See Bevan Group 9 v. A-Best
Products Co., 2004 WL 1191713 (Ohio Common Pl., Cuyahoga County,
May 17, 2004) (“... Ohio law deems civil conspiracy an intentional tort”);
Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481, 496-97 (1996).
Chesher v. Neyer, 392 F. Supp. 2d 939, 959 (S.D. Ohio 2005) aff'd, 477 F.3d 784 (6th Cir.
2007). Therefore, the exception found in Ohio Revised Code § 2744.02(B)(2) does not
apply to Plaintiffs’ claim for civil conspiracy under Ohio law.
Because the exception to the grant of political subdivision immunity found in Ohio
16
Revised Code § 2744.02(B)(2) does not apply, the immunity analysis need not go any
further. Accord Weldon v. Warren Cnty. Children Servs., No. 1:12-CV-279-HJW, 2012
WL 5511070, at *10 (citing Hortman v. Miamisburg, 110 O.St.3d 194, 197, 852 N.E.2d
716 (2006). Therefore, Plaintiffs’ state law claims for civil conspiracy and defamation
against the County are barred due to political subdivision immunity.
In summary, the Court finds that Plaintiffs have failed to state a claim against the
County and dismissal of the claims against the County is proper under Federal Rule of
Civil Procedure 12(b)(6).
C. The Varnaus
The Varnaus challenge this Court’s jurisdiction to hear Plaintiffs’ claims under
Federal Rule of Civil Procedure 12(b)(1); and also argue that Plaintiffs have failed to state
a claim under Federal Rule of Civil Procedure 12(b)(6). The Court will address the
jurisdiction issues first, and then analyze Plaintiffs’ claims under Rule 12(b)(6).
1. Amendment of Coroner’s Verdict
Plaintiffs seek to amend the Coroner’s verdict pursuant to Ohio Revised Code §
313.19, which provides:
The cause of death and the manner and mode in which the death occurred,
as delivered by the coroner and incorporated in the coroner's verdict and in
the death certificate filed with the division of vital statistics, shall be the
legally accepted manner and mode in which such death occurred, and the
legally accepted cause of death, unless the court of common pleas of the
county in which the death occurred, after a hearing, directs the coroner to
change his decision as to such cause and manner and mode of death.
Ohio Rev. Code § 313.19. The Supreme Court of Ohio has explained that “the court of
common pleas has jurisdiction to both hear and determine the type of factual questions
raised in an R.C. 313.19 action.” Perez v. Cleveland, 66 Ohio St. 3d 397, 399, 613
17
N.E.2d 199, 201 (1993); see also State ex rel. Blair v. Balraj, 69 Ohio St.3d 310, 631
N.E.2d 1044, 1048 (Ohio 1994) (“an action for declaratory judgment in the court of
common pleas [is] the way to implement R.C. 313.19's hearing provisions in a case where
plaintiff sought to have the coroner's verdict changed from ‘homicide’ to ‘natural
causes.’”). Therefore, the Court finds that it does not have jurisdiction to amend the
Coroner’s verdict pursuant to Ohio Revised Code § 313.19.
2. Abstention
The Varnaus argue that this Court should abstain from deciding Plaintiffs’ claims
der the Pullman and the Rooker-Feldman abstention doctrines.
Pullman abstention is derived from the Supreme Court's decision in Railroad
Commission of Texas v. Pullman Co., 312 U.S. 496, 500-501 (1941). Application of the
Pullman abstention doctrine “is warranted only when a state law is challenged and
resolution by the state of certain questions of state law may obviate the federal claims, or
when the challenged law is susceptible of a construction by state courts that would
eliminate the need to reach the federal question.” GTE N., Inc. v. Strand, 209 F.3d 909,
921 (6th Cir. 2000). Aside from Plaintiffs’ claim pursuant to Ohio Revised Code §
313.19, Plaintiffs do not raise challenges to the determination of the cause of death.
Instead, Plaintiffs challenge the way in which that determination was reached in
Goldson’s case.
Plaintiffs claim the Varnaus improperly exerted pressure, knowingly provided
misinformation, concealed exculpatory evidence, or otherwise engaged in wrongful or
bad faith conduct that resulted in the initiation of legal proceedings. Plaintiffs also claim
that the Varnaus made false statements to the press and specifically implicated Plaintiffs
18
in Goldson’s death. Plaintiffs’ claims appear to be about the manner of the investigation,
not the decision itself. Since Plaintiffs’ remaining claims are limited to the actions the
Varnaus took while conducting their investigation, there exists no question of state law.
Therefore, the Pullman abstention does not apply.
The Rooker-Feldman doctrine “is confined to cases of the kind from which the
doctrine acquired its name: cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments.” Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Plaintiffs in this case
are not complaining of injuries caused by a judgment rendered by the state court prior to
the commencement of district court proceedings. Therefore, the Court finds that the
Rooker-Feldman doctrine does not apply.
Accordingly, the Court will not abstain from exercising jurisdiction over Plaintiffs'
claims. Accord Elfers v. Varnau, No. 1:14CV171, 2015 WL 1476746, at *2 (S.D. Ohio
Mar. 31, 2015).
3. Absolute Immunity
The Varnaus claim that they are entitled to absolute immunity from Plaintiffs’
constitutional claims because those claims stem from the Varnaus’ actions taken while
working within the scope of their official positions as Coroner and Coroner’s designee.
The Varnaus argue that making a determination regarding the cause of death is a
quasi-judicial duty, which is shielded by absolute immunity. The Varnaus also argue that
one who acts under the direction of an absolutely immune official is likewise protected
under the doctrine of quasi-judicial immunity.
19
“A government officer is entitled to absolute immunity for performing functions
‘intimately associated with the judicial phase of the criminal process.’”
Adams v.
Hanson, 656 F.3d 397, 401 (6th Cir. 2011) (quoting Imbler v. Pachtman, 424 U.S. 409,
430 (1976)). The Sixth Circuit has explained that under this “functional approach” an
official's “acts undertaken in direct preparation of judicial proceedings . . . warrant
absolute immunity, whereas other acts, such as the preliminary gathering of evidence
that may ripen into a prosecution, are too attenuated to the judicial process to afford
absolute protection.” Adams, 656 F.3d at 402 (quoting Ireland v. Tunis, 113 F.3d 1435,
1445 (6th Cir.1997)). The Sixth Circuit has cautioned: “Using this approach, courts must
look to the nature of the function performed, not the identity of the actor who performed it.”
Koubriti v. Convertino, 593 F.3d 459, 467 (6th Cir. 2010) (internal quotation marks and
citation omitted).
Here, Dr. Varnau was not giving testimony at an adversarial proceeding and her
decision regarding Goldson's cause of death was not taken in direct preparation for
judicial proceedings. The Ohio Supreme Court has described the role of a coroner in
determining the cause of death as “a medical expert rendering an expert opinion on a
medical question.” Vargo v. Travelers Ins. Co., 516 N.E.2d 226, 229 (Ohio 1987). To
the extent Plaintiffs' claims are based upon Dr. Varnau's determination of Goldson's
cause of death, the doctrine of absolute immunity offers “no protection to pretrial conduct,
including the fabrication of evidence later adopted in trial testimony; that receives only
qualified-immunity protection.” LeFever v. Ferguson, 567 Fed.Appx. 426, 430 (6th Cir.
2014) (citing Gregory v. City of Louisville, 444 F.3d 725, 738 (6th Cir. 2006) (finding
toxicologist entitled to absolute immunity because no evidence of pretrial conduct
20
supporting fabrication claim)).
Therefore, the Court finds that the Varnaus are not entitled to absolute immunity
from Plaintiffs' constitutional claims.
4. Qualified Immunity
Qualified immunity shields “government officials 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 (1982). The Sixth Circuit has
explained:
To determine whether a government official is entitled to qualified immunity,
we consider the two-part test described in Saucier v. Katz, which asks
whether “a constitutional right would have been violated on the facts
alleged” and, if so, whether the right was “clearly established.” 533 U.S.
194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). We are free to
address the second question first, analyzing whether the constitutional right
that purportedly prohibited a defendant's conduct was clearly established,
without addressing whether there was a constitutional violation at all.
Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565
(2009).
Occupy Nashville v. Haslam, 769 F.3d 434, 442 (6th Cir. 2014) (footnote omitted).
Plaintiffs’ claims under Section 1983 are based on violations of their Fourteenth
Amendment substantive and procedural due process rights.
i. Procedural due process
The Fourteenth Amendment provides that “[n]o State shall ... deprive any person
of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
“To establish a procedural due process claim, a plaintiff must show that (1) it had a life,
liberty, or property interest protected by the Due Process Clause; (2) it was deprived of
this protected interest; and (3) the state did not afford it adequate procedural rights.”
21
Daily Servs., LLC v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014) (citing Women's Med.
Prof'l Corp. v. Baird, 438 F.3d 595, 611 (6th Cir. 2006)). “Although property rights are
principally created by state law, ‘whether a substantive interest created by the state rises
to the level of a constitutionally protected property interest is a question of federal
constitutional law.’” Waeschle v. Dragovic, 576 F.3d 539, 544 (6th Cir. 2009) (quoting
Whaley v. County of Tuscola, 58 F.3d 1111, 1114 (6th Cir.1995)).
“Governmental employees may have a property interest in continued employment,
in which case they must be afforded due process before being discharged.” Pucci v.
Nineteenth Dist. Court, 628 F.3d 752, 765 (6th Cir. 2010) (citing Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). However,
Plaintiffs do not allege that any officers were discharged or disciplined in any way as a
result of the Varnaus’ actions.
Plaintiffs argue that they have had difficulty finding employment elsewhere and
under Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), the Supreme
Court found that defamation can cause a deprivation of a property right. However, in
Paul v. Davis, the Court was clear that it is not “sufficient to establish a claim under § 1983
and the Fourteenth Amendment that there simply be defamation by a state official; the
defamation had to occur in the course of the termination of employment.” Id. at 710
(discussing Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548
(1972)). Plaintiffs have not alleged that the Varnaus made defamatory statements in the
course of the termination of their employment.
Defamation alone is not enough to
establish a liberty or property interest. Mertik v. Bialock, 983 F. 2d 1353 (6th Cir. 1993)
(“Injury to reputation, standing alone, is not a liberty interest protected by the Fourteenth
22
Amendment” and “[d]efamatory publications, standing alone, do not rise to the level of a
constitutional claim, no matter how serious the harm to reputation.”).
Therefore, the Court finds that based the facts alleged, Plaintiffs have failed to
state a claim against the Varnaus for a violation of their procedural due process rights.
ii.
Subtantive due process
Substantive due process protects against “certain government actions regardless
of the fairness of the procedures used to implement them.” Range v. Douglas, 878 F.
Supp. 2d 869, 877 (S.D. Ohio 2012) (citing Daniels v. Williams, 474 U.S. 327, 331
(1986)). “To state a cognizable substantive due process claim, the plaintiff must allege
‘conduct intended to injure in some way unjustifiable by any government interest’ and that
is ‘conscience-shocking’ in nature.” Mitchell v. McNeil, 487 F. 3d 374, 376 (6th Cir.
2007) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140
L.Ed.2d 1043 (1998)). As the Sixth Circuit has explained:
Over the years, the courts have used several tropes to explain what it
means to shock the conscience. Cnty. of Sacramento v. Lewis, 523 U.S.
833, 846–47, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Conduct shocks
the conscience if it “violates the ‘decencies of civilized conduct.’” Id. at
846, 118 S.Ct. 1708 (quoting Rochin v. California, 342 U.S. 165, 172-73, 72
S.Ct. 205, 96 L.Ed. 183 (1952)). Such conduct includes actions “so ‘brutal’
and ‘offensive’ that [they do] not comport with traditional ideas of fair play
and decency.” Id. at 847, 118 S.Ct. 1708 (quoting Breithaupt v. Abram,
352 U.S. 432, 435, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957)). These are
subjective standards, to be sure, but they make clear that the “shocks the
conscience” standard is not a font of tort law, but is instead a way to
conceptualize the sort of egregious behavior that rises to the level of a
substantive due process violation. See id. at 847–48, 118 S.Ct. 1708.
Range v. Douglas, 763 F.3d 573, 589-590 (6th Cir. 2014).
In another case brought against the Varnaus, this Court found that allegations that
the Varnaus made a false determination regarding the cause of death so as to prevent the
23
Brown County Sheriff from conducting further investigation did not “shock the
conscience.” Elfers v. Varnau, No. 1:14CV171, 2015 WL 1476746, at *7 (S.D. Ohio Mar.
31, 2015) (citing Johnson v. Barker, 799 F.2d 1396, 1400 (9th Cir. 1986) (allegation that
sheriff and prosecutors pursued baseless criminal charges for “political” reasons was not
so egregious as to “shock the conscience”); Cruz–Erazo v. Rivera–Montanez, 212 F.3d
617 (1st Cir. 2000) (allegation that police officers verbally harassed and intimidated
homeowners, occupied their property without permission, deliberately lied in official
documents, and perjured themselves in official court proceedings with intention of
causing homeowners harm did not sufficiently “shock the conscience” so as to violate
substantive due process); Cusick v. City of New Haven, 145 Fed.Appx. 701, 702–703 (2d
Cir. 2005) (“Assuming arguendo that the plaintiffs' evidence was sufficient to demonstrate
that the defendants intended to harm them by withholding information from the North
Haven police—a questionable supposition—this conduct still would not constitute the
kind of heinous behavior recognized in the law as ‘conscience-shocking.’”)).
Plaintiffs claim that the Varnaus improperly exerted pressure, knowingly provided
misinformation, concealed exculpatory evidence, or otherwise engaged in wrongful or
bad faith conduct that resulted in the initiation of legal proceedings against Plaintiffs.
Specifically, Plaintiffs have alleged: (1) the Varnaus sent emails to the Attorney General’s
office and to Special Prosecutor Breyer in an effort to exert pressure on them to charge
Plaintiffs in connection with Goldson’s death; (2) the Varnaus also exerted pressure on
Dr. Harshbarger to amend his autopsy findings; (3) the Varnaus deliberately fabricated
certain facts and concealed others in their reports to make it look as if Plaintiffs were
murderers and Goldson did not hang himself; and (4) the Varnaus falsified forensic
24
findings by stating that there was a matrix pattern imprint on Goldson’s neck and
deliberately misconstrued the livor mortis findings.
In support of their claim, Plaintiffs cite to Galbraith v. Cnty. of Santa Clara, 307 F.3d
1119, 1126 (9th Cir. 2002), in which the Ninth Circuit held that “a coroner's reckless or
intentional falsification of an autopsy report that plays a material role in the false arrest
and prosecution of an individual can support a claim under 42 U.S.C. § 1983 and the
Fourth Amendment.” However, the court was clear that it was analyzing the case under
the Fourth Amendment, not the Fourteenth Amendment. See Galbraith, 307 at 1127
(“Fourth Amendment principles, and not those of due process, govern this case.”). Here,
Plaintiffs have not alleged that they arrested or prosecuted. The only allegation is that
the false information provided by the Varnaus resulted in a referral of charges to the grand
jury, which returned a no bill.
Therefore, the Court finds that based on the facts alleged, Plaintiffs have failed to
state a claim against the Varnaus for a violation of their substantive due process rights.
5. Section 1985
As explained above, 42 U.S.C. § 1985(1) is not applicable when the plaintiff is not
a federal officer. Therefore, Plaintiffs have failed to state a claim under 42 U.S.C. §
1985(1) against the Varnaus.
6. State law claims
i.
Immunity under Ohio Revised Code § 2744.03(A)(6)
The Varnaus make a brief argument that they are entitled to statutory immunity
from Plaintiffs’ state law claims for civil conspiracy and defamation.
Ohio Revised Code § 2744.03(A)(6) provides:
25
(6) In addition to any immunity or defense referred to in division (A)(7) of this
section and in circumstances not covered by that division or sections
3314.07 and 3746.24 of the Revised Code, the employee is immune from
liability unless one of the following applies:
...
(b) The employee's acts or omissions were with malicious purpose, in bad
faith, or in a wanton or reckless manner
Ohio Rev. Code § 2744.03. Plaintiffs have sufficiently alleged that the Varnaus’ acts or
omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner:
“Dr. Varnau willfully and intentionally mislead the public into believing that
the Plaintiffs deliberately refrained from preserving the necessary video
imagery…” (Doc. 10, ¶ 60).
“The Varnaus released this information knowing that the press would widely
disseminate their false accusations” (Doc. 10, ¶ 63).
“Defendants knowingly and maliciously disseminated false circumstances
surrounding Goldson’s death in a conspiratorial attack to personally and
professionally ruin Plaintiffs” (Doc. 10, ¶ 66).
Therefore, the Court concludes that the Varnaus are not entitled to statutory
immunity under Ohio Rev. Code § 2744.03. However, the Varnaus argue that Plaintiffs
have failed to state a claim against them for either defamation or civil conspiracy.
ii.
Defamation
In Ohio, the tort of defamation has four elements: “a false and defamatory
statement concerning another; unprivileged publication to a third party; fault amounting to
at least negligence by the publisher; actionability of the statement irrespective of a special
harm or the existence of a special harm.” Akron-Canton Waste Oil, Inc. v. Safety-Kleen
Oil Serv., Inc., 81 Ohio App.3d 591, 601, 611 N.E.2d 955, 962 (1992) (quoting 3
Restatement of the Law2d Torts § 558, pg. 155 (1977)).
The Varnaus claim that any statements they made were made in their capacity as
26
Coroner and the Coroner’s designee, and therefore a qualified privilege attaches to them.
As one Ohio court has explained:
No single statement or formula can sufficiently describe when publication of
defamatory matter should be conditionally or qualifiedly privileged. It is
generally agreed, however, that * * * [a] publication is privileged when it is
‘fairly made by a person in the discharge of some public or private duty,
whether legal or moral, or in the conduct of his own affairs, in matters where
his interest is concerned.’
“ ‘ “ ‘ * * * The essential elements of a conditionally privileged communication
may accordingly be enumerated as good faith, an interest to be upheld, a
statement limited in its scope to this purpose, a proper occasion, and
publication in a proper manner and to proper parties only. The privilege
arises from the necessity of full and unrestricted communication concerning
a matter in which the parties have an interest or duty, and is not restricted
within any narrow limits.’ ” '
“ * * * [T]he privilege does not attach to the communication, but to the
occasion on which it is made.” (Citations omitted.) A & B-Abell Elevator
Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council (1995), 73
Ohio St.3d 1, 7-9, 651 N.E.2d 1283, 1290.
Kremer v. Cox, 114 Ohio App. 3d 41, 62-63, 682 N.E.2d 1006, 1020 (1996). “When a
defendant possesses a qualified privilege regarding statements contained in a published
communication, that privilege can be defeated only by a clear and convincing showing
that the communication was made with actual malice.” Id. at 63. In this context, actual
malice is defined as “acting with knowledge that the statements were false or acting with
reckless disregard as to their truth or falsity.” Here, Plaintiffs adequately allege that the
Varnaus’ defamatory statements were made with actual malice. Therefore, at this stage
of the proceedings, based on the allegations in the Amended Complaint, Plaintiffs have
stated a claim of defamation against the Varnaus.
iii.
Civil conspiracy
The Supreme Court of Ohio defines civil conspiracy as “‘a malicious combination
27
of two or more persons to injure another in person or property, in a way not competent for
one alone, resulting in actual damages.’ ” Aetna Cas. & Sur. Co. v. Leahey Const. Co.,
219 F.3d 519, 534 (6th Cir. 2000) (quoting Kenty v. Transamerica Premium Ins. Co., 72
Ohio St.3d 415, 650 N.E.2d 863, 866 (1995). To state a claim of civil conspiracy, the
following elements must be proven: “(1) a malicious combination; (2) two or more
persons; (3) injury to person or property; and (4) existence of an unlawful act independent
from the actual conspiracy.” Id. (quoting Universal Coach, Inc. v. New York City Transit
Auth., Inc., 90 Ohio App.3d 284, 629 N.E.2d 28, 33 (1993)).
Plaintiffs allege that the Varnaus “participated in a malicious combination involving
two or more persons, resulting in the unlawful act of attributing Plaintiffs responsible for
Goldson’s death, and that they tampered with evidence to cover for those who did cause
Zachary Goldson’s death.” (Doc. 10, ¶ 99). These allegations are sufficient to support
a claim for civil conspiracy. However, the Varnaus argue that Plaintiffs claims are barred
by the intra-conspiracy doctrine.
“The intra-corporate conspiracy doctrine provides that employees of a corporation
or governmental entity cannot conspire among themselves because they are treated as
one entity.” Nuovo v. The Ohio State Univ., 726 F. Supp. 2d 829, 845 (S.D. Ohio 2010)
(citing Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 509
(6th Cir. 1991)). The doctrine has been applied to the Ohio common law civil conspiracy
claim. Id. (citing Lutz v. Chesapeake Appalachia, L.L.C., No. 4:09CV2256, 2010 WL
2541669, at *5 n. 13 (N.D.Ohio June 18, 2010)). However, an exception to the doctrine
exists when the challenged activity takes place outside the scope of employment.
Johnson v. Hills & Dales General Hosp., 40 F.3d 837 (6th Cir. 1994). Plaintiffs have
28
alleged that the underlying defamation took place outside the scope of the Varnau’s
employment.
Therefore, the Court concludes that at this stage of the proceedings, based on the
allegations in the Amended Complaint, Plaintiffs have stated a claim against the Varnaus
for civil conspiracy under Ohio law.
III.
CONCLUSION
Based on the foregoing, it is hereby ORDERED that:
1. Defendant Brown County’s Motion to Dismiss (Doc. 12) is GRANTED;
a. Brown County and the Brown County Commissioners are DISMISSED as a
party;
b. The claims brought against Judith A. Varnau and Dennis Varnau in their
official capacity are DISMISSED;
2. Defendants Judith and Dennis Varnau’s Motion to Dismiss (Doc. 14) is
GRANTED in PART and DENIED in PART;
a. Plaintiffs’ claims against the Varnaus under 42 U.S.C. § 1983 and 42 U.S.C.
§ 1985 are DISMISSED for failure to state a claim; Plaintiffs’ claim for
Amendment of Coroner’s Verdict is DISMISSED for lack of jurisdiction;
b. Plaintiffs’ claims for defamation and civil conspiracy under Ohio law remain
pending.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge
29
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