Kent v. Gantt

Filing 15

OPINION AND ORDER granting 4 Motion to Dismiss & denying 7 Motion for Sanctions. Claims One, Two and Three of the complaint are dismissed w/prejudice. The remaining claims are dismissed w/out prejudice. Signed by Magistrate Judge Terence P Kemp on 9/26/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Bernadine Kennedy Kent,

:

Plaintiff,

:

v.

:

Detective Joshua Gantt,

Case No. 2:13-cv-459
Magistrate Judge Kemp

Defendant.

:
OPINION AND ORDER

This case, referred to the Magistrate Judge with the consent
of the parties, is before the Court on defendant’s motions to
dismiss and for sanctions (Doc. 4 and 7).
briefed.

Both motions are fully

For the following reasons, the Court will grant the

motion to dismiss, dismiss all federal law claims with prejudice,
dismiss all state law claims without prejudice, and deny the
motion for sanctions.
I.
The First Amendment to the United States Constitution is the
protector of many important social and political values.

Among

these are a prohibition on laws “abridging the freedom of speech”
and a recognition of “the right of the people ... to petition the
Government for a redress of grievances.”

This case raises a

question about what activities are included in those First
Amendment freedoms, and whether certain types of government
action (or inaction) infringe them.
Based on the complaint and its attachments, as well as other
materials submitted on her behalf, it appears that plaintiff
Bernadine Kennedy Kent is a concerned citizen who does not
hesitate to express her concerns to government officials.

That

can be a hallmark of good citizenship, and is fully consistent
with the First Amendment.

She says, though, that what happened

in this case is not.
A fair reading of the complaint reveals these facts.

At

some point, perhaps in 2012, Ms. Kent became concerned about the
welfare of some children she knows and occasionally cares for.
In particular, she was concerned that an older brother of three
younger sisters may have been abusing them sexually, and that the
children’s mother was aware of his actions but failed to report
them.

Ms. Kent also believed that the mother’s husband was

abusive and dangerous and that the mother herself had issues
concerning drug use, potential homelessness, and neglect of the
children.
After having additional contact with the children in
February, 2013, Ms. Kent called the police.

She reported her

concerns to Detective Joshua Gantt, the named defendant,
explaining that the family in question had a history with
Franklin County Children’s Services and that, in her view, FCCS
improperly returned the children to the family in 2012 and closed
its case.

Later, she filed a written complaint against the

children’s mother alleging child abuse.
It also appears that Ms. Kent or her husband, James
Whitaker, or both of them, obtained temporary custody of at least
one of the children in 2013 based on these same concerns.

In an

email dated March 19, 2013, Detective Gantt congratulated Ms.
Kent on getting the children into a safe situation (Complaint,
Exhibit I).

He said in the same email that he would “file the

charges” if “possible/necessary.”
Apparently, however, he did not, and that is what Ms. Kent
is complaining about.

In fact, she alleges that Detective Gantt

never created an official record or incident report.

Her

complaint characterizes this failure as a violation of her “right
to free expression” (Complaint, First Claim) and her right “to
redress of grievances” (Second Claim).
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The Third Claim is based

on the alleged deprivation of property without due process of
law.

The remainder of the claims in the complaint rely on Ohio

law for their support.
II.
It is not necessary to set out in great detail the familiar
standard for evaluating a motion to dismiss.

A motion to dismiss

under Fed. R. Civ. P 12(b)(6) should not be granted if the
complaint contains “enough facts to state a claim to relief that
is plausible on its face." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 569 (2007). All well-pleaded factual allegations must
be taken as true and be construed most favorably toward the nonmovant. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Gunasekera
v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Rule 8(a)
admonishes the Court to look only for a “short and plain
statement of the claim,” however, rather than requiring the
pleading of specific facts. Erickson v. Pardus, 551 U.S. 89
(2007).
The Court will evaluate Ms. Kent’s complaint under this
standard.
III.
Ms. Kent’s three federal claims are asserted under 42 U.S.C.
§1983, which provides a remedy in favor of any person who is
“subjected ... to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws” by a person
acting under color of state law.

Ms. Kent has adequately alleged

that Detective Gantt is a person who acted under color of state
law.

What the Court must decide is if he deprived Ms. Kent of

any right secured to her by the Constitution - particularly, as
she claims, by the First and Fourteenth Amendments.

While the

motion to dismiss also raises an issue of qualified immunity briefly described as a defense available to a state official who
violates the Constitution but could not reasonably have been
aware that he or she did so, see, e.g., Harlow v. Fitzgerald, 457
U.S. 800 (1982) - the Court need not reach that question if it
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finds that no constitutional violation has been alleged.

See

Estate of Owensby v. City of Cincinnati, 414 F.3d 596, 602 (6th
Cir. 2005)(“If the facts alleged fail to establish a
constitutional violation, then the inquiry ends”).
A.

The First Amendment Claims

The Court begins its analysis with a fairly straightforward
proposition: “Nothing in the First Amendment or in [the Supreme]
Court's case law interpreting it suggests that the rights to
speak, associate, and petition require government policymakers to
listen or respond to individuals' communications on public
issues.”

Minnesota State Board for Community Colleges v. Knight,

465 U.S. 271, 272 (1984).

This Court has applied that principle

to a case where a citizen, dissatisfied with the fact that his
many petitions for redress were ignored by federal officials
including the President and the Attorney General, sued them
claiming a violation of his First Amendment rights.

In that

case, the Court, relying on Knight and decisions such as Smith v.
Arkansas State Highway Employees, Local 1315, 441 U.S. 463 (1979)
and Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999), concluded
that “[t]he right to petition is the freedom to express one's
will to the government, and [plaintiff] has been able to do just
that.

It is not a right that requires the government to

reciprocate.”

Brown v. Obama, 2012 WL 2562352, *2 (S.D. Ohio

June 29, 2012)(Kemp, M.J.), adopted and affirmed 2012 WL 3064256
(S.D. Ohio July 27, 2012).
Other Judges of this Court have dealt with similar issues in
similar fashion.

For example, in Lawton v. Perry Twp. Police

Department, Case No. 2:06-cv-646 (S.D. Ohio), the plaintiff
complained that the Perry Township Police Department failed to
investigate his claims that crimes had occurred.

In his opinion

dismissing the case (Doc. 7), Judge Marbley held that

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There is no constitutionally protected right to have
one’s claim against another person investigated. See
DeShaney v. Winnnebago County Dep’t of Social Services,
489 U.S. 189, 195 (1989). “No federal appellate court,
including the Supreme Court . . . has recognized that
there is a federally enforceable right for the victim
[of a crime] to have criminal charges investigated at
all.” White v. City of Toledo, 217 F.Supp. 2d 838,
841-42 (N.D.Ohio 2002). See also Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973)(there is no federally
protected right to compel the arrest of another).
Slip Op., March 8, 2007, at 2.
It would be surprising indeed if a police department which
is not required by law to investigate or to file charges (or to
take any action at all) against someone accused of a crime, or to
report back to the person who made the complaint, is nonetheless
constitutionally required to prepare and place in its own records
written documentation that a citizen has reported a crime.

There

is not much case law addressing this precise issue, perhaps
because few citizens (or their attorneys) have ever concluded
that the Constitution requires police officers to make such
reports.
Detective Gantt has cited, and the Court’s independent
research has located, only a single case which appears to be
directly on point.

In that case,

Abella v. Simon, 831 F.Supp.2d

1316 (S.D. Fla. 2011), vacated in part 482 Fed. Appx. 522 (11th
Cir. July 26, 2012), the court held that the Constitution is not
violated by a police officer’s failure to make a report.

It

reasoned that because other courts have held that the making of a
false report is not a constitutional violation, the failure to
make any report at all cannot be one either.

Id. at 1341-42,

citing Jarrett v. Twp. of Bensalem, 312 Fed. Appx. 505, 507 (3d
Cir. 2009) and Landrigan v. City of Warwick, 628 F.2d 736, 745
(1st Cir. 1980).
Landrigan was a case in which the plaintiff complained about
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a false police report having been made and placed in the police
department files.

That court concluded that unless the report

were actually used in a way which damaged the plaintiff, there
was no constitutional violation; “we do not see how the existence
of a false police report, sitting in a drawer in a police
station, by itself deprives a person of a right secured by the
Constitution and law.”

Id. at 744.

Jarrett reached a similar

conclusion, relying not only on Landrigan but also on cases such
as Shock v. Tester, 405 F.2d 852 (8th Cir. 1969), which found no
right under the Equal Protection Clause to an accurate police
report, or to have an inaccurate report corrected.
The interests implicated by the creation of inaccurate
police reports, and by the absence of any police report, are not
identical.

The first involves government action, rather than

inaction, and would seem to present a stronger case for a
constitutional violation; perhaps that is why the courts which
have addressed that issue have suggested that if the false report
is used in a way which damages the plaintiff, some type of
constitutional claim might be available.

The second involves

government inaction, which, unless it results in harm as a result
of the aggravation of a situation the government itself has
created, see, e.g., DeShaney, supra, usually does not violate the
Constitution even if it actually causes harm.

Thus, the Abella

court’s reliance on cases involving inaccurate police reports is
reasonable even if the situations differ, and this Court finds
its reasoning persuasive.
Further, Ms. Kent has not alleged that she suffered any harm
as a result of the absence of the police report in question; she
was not the victim of the conduct she reported.

Neither has she

claimed that as a result of Detective Gantt’s failure to make an
official report, she has been victimized subsequently.

While

there is a substantial question about whether she could make out
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a constitutional claim even if she suffered harm, see, e.g.,
DeShaney, supra; see also Town of Castle Rock, Colo. v. Gonzales,
545 U.S. 748 (2005), that is not this case.

The long and short

of the matter is that Detective Gantt’s failure to make an
official report had no impact on Ms. Kent’s ability to express
her concerns to the police or to ask the police to act; she did
both.

And she has not explained in any plausible way how his

failure to make the report inhibited her subsequent ability to do
exactly the same thing.

Her rights of expression and to petition

for redress were simply unaffected by his inaction, and that is
enough to defeat her First Amendment claims.
Ms. Kent argues that state law imposed a duty on Officer
Gantt to make a report of her complaints.
§5502.62(C)(6).

See O.R.C.

That statute provides:

(C) The division of criminal justice services shall
develop and maintain the Ohio incident-based reporting
system to facilitate the sharing of information with
the federal bureau of investigation and participating
law enforcement agencies in Ohio. The Ohio
incident-based reporting system shall be known as
OIBRS. In connection with OIBRS, the division shall do
all of the following:
***
(6) Require every law enforcement agency that receives
federal criminal justice grants or state criminal
justice information system general revenue funds
through the division to participate in OIBRS or in the
uniform crime reporting program of the federal bureau
of investigation. An agency that submits OIBRS data to
the Ohio local law enforcement information sharing
network shall be considered to be in compliance with
division (C)(6) of this section if both of the
following apply:
(a) The Ohio local law enforcement information sharing
network is capable of collecting OIBRS data.

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(b) The division of criminal justice services has the
ability to extract the OIBRS data for reporting to the
national incident-based reporting system in the manner
required by the federal bureau of investigation.
According to Ms. Kent, pursuant to this statute, the Office of
Criminal Justice Service requires all agencies receiving federal
grants to report crime statistics.

She reasons that such

statistics cannot be accurately reported if officers fail to
enter reports of crimes into the official records, so that
officers therefore have a duty to make such reports each time a
citizen complains of a crime.
The Court expresses no view on whether Ohio law imposes such
a requirement, although it notes that Detective Gantt has
submitted an unreported state court decision which says it does
not.

For First Amendment purposes, it does not matter what Ohio

law requires or does not require; the source of First Amendment
rights is federal, not state, law.

There simply is no federal

constitutional duty imposed on law enforcement agencies to record
every citizen’s complaint in writing because there is no
corresponding First Amendment right granted to citizens to have
their complaints entered into the official written record of a
police department.
B.

The Due Process Claim

Ms. Kent’s only other federally-based claim is her Due
Process claim.

As the Court understands this claim, it is based

on the fact that Ms. Kent turned over some items of physical
evidence to Detective Gantt (particularly an audio recording) but
that he then failed to use that evidence to record her complaint.
Because he did not grant her a “hearing” before he made that
decision, she claims to have been deprived of her property
without due process.
This claim borders on the frivolous.

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Ms. Kent does not

claim that she was forced to give the audio recording or any
other item of personal property to Detective Gantt.
her property over willingly.

She turned

That act cannot form the basis for

a claim that Detective Gantt illegally seized her property.

See,

e.g., Waters v. Howard Sommers Towing, Inc., 2011 WL 2601835, *8
(C.D. Cal. June 30, 2011) (“when an individual consents to
relinquish his person or property, there is no Fourth Amendment
‘seizure.’”), citing United States v. Mendehall, 446 U.S. 544
(1980).
It is an open question in this Circuit whether the failure
to return property voluntarily given to a state official is a
Fourth Amendment seizure.
(6th Cir. 1999).

See Fox v. Van Oosterum, 176 F.3d 342

However, Fox held that if the government

obtains property lawfully (but in a manner other than receiving
it through the voluntary act of the owner), the continued
retention of that property against the owner’s wishes is not a
Fourth Amendment seizure and is better analyzed under the Due
Process Clause.

Here, any claim for return of the actual audio

recording is barred by Parratt v. Taylor, 451 U.S. 527 (1981),
which held that no due process claim can be asserted for a state
official’s deprivation or retention of property if the state also
provides an adequate post-deprivation remedy.

That is, so long

as the deprivation did not occur due to some pre-established
state policy which requires or permits citizens to be deprived of
their property without a hearing ahead of time, “the deprivation,
though under color of state law, is not without due process of
law.”

Wilson v. Beebe, 770 F.2d 578 (6th Cir. 1985).

Ms. Kent

has not argued that she lacks a state remedy, in tort or
otherwise, to obtain the audio recording back or to be
compensated for its value.
ever asked for it back.

In fact, she has not alleged that she

Thus, there is no plausible basis for

any claim that Detective Gantt retained the items she gave him,
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against her will, without providing her with an opportunity to be
heard concerning the retention.
Detective Gantt’s retention of her audio recording does not
seem to be the gist of Ms. Kent’s claim, however.

Rather, she

seems to assert that she had a property interest in having her
property put to use in making an official record of her
complaint, and that Detective Gantt deprived her of that property
interest.

See Plaintiff’s Response to Defendant’s Motion to

Dismiss, Doc. 6, at 4 (“When Defendant GANTT received the
Plaintiff’s property and did not follow the Columbus Police
Division Directive for ‘Property and Evidence Handling’ Defendant
GANTT essentially took away the benefit of the Plaintiff’s
property submitted for its evidentiary value to establish that a
crime had been committed and linking the alleged crime to its
alleged perpetrators”).

She cites to various Columbus Police

Division Directives relating to receiving and handling property
as the basis for her assertion that Detective Gantt had a duty to
use the property for purposes of creating an official record of
her complaint.
It is true that state law can create property interests that
are then protected by the Fourteenth Amendment.

See Paul v.

Davis, 424 U.S. 693, 710-11 (1976)(some property “interests
attain ... constitutional status by virtue of the fact that they
have been initially recognized and protected by state law ... and
we have repeatedly ruled that the procedural guarantees of the
Fourteenth Amendment apply whenever the State seeks to remove or
significantly alter that protected status”).

However, citizens

generally have no property interest simply in seeing that state
procedures are followed.

See Richardson v. Township of Brady,

218 F.3d 508 (6th Cir. 2000)(a plaintiff who asserted a property
interest in having a township follow its own mandatory procedure
for amending a livestock ordinance “can have no protected
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property interest in the procedure itself”); see also Shanks v.
Dressel, 540 F.3d 1082, 1092 (9th Cir. 2008)(“Absent a
substantive property interest in the outcome of procedure, [a
plaintiff] is not constitutionally entitled to insist on
compliance with the procedure itself”).

Thus, no matter what the

Columbus Police Division procedures require, Ms. Kent cannot
assert a valid property interest in having them followed.
It could be that Ms. Kent is claiming not just an interest
in having the Columbus Police Department follow its own policies
however, but some further substantive interest in the result
which would occur if those policies were followed, such as the
arrest of the alleged criminals.

Even if a state statute or

regulation appears to confer some type of benefit on its
citizens, and even if the failure to follow the statute or
regulation actually deprives the citizen of that benefit, the Due
Process Clause is not implicated if the benefit is properly
described as “indirect” or “incidental.”

So, for example, in

Town of Castle Rock, supra, the Supreme Court held that a
beneficiary of a restraining order issued against her spouse “did
not, for purposes of the Due Process Clause, have a property
interest in police enforcement of the restraining order against
her husband.”

Id. at 768.

That was so even if the police were

mandated by state law to enforce the order, because the benefit
to the protected spouse (whose three children were killed by her
husband when state officials failed to enforce the restraining
order) was considered indirect.

As the Supreme Court said, “the

alleged property interest here arises incidentally, not out of
some new species of government benefit or service, but out of a
function that government actors have always performed - to wit,
arresting people who they have probable cause to believe have
committed a criminal offense.”

Id. at 767-68.

Surely, any interest Ms. Kent had in having Detective Gantt
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use her “property” to make a report of a crime is at least as
indirect as the interest a battered spouse has in having the
police enforce a restraining order.
victim of the alleged crime.

Ms. Kent is not even the

Under Castle Rock and the decisions

it relied upon, including O’Bannon v. Town Court Nursing Center,
447 U.S. 773 (1980), even if the Court were to assume that
Detective Gantt had the duty which Ms. Kent alleges (and which is
not at all clear from the various sources of state law she
cites), his failure to discharge that duty is not a Due Process
violation.

This claim also fails.
IV.

The Court has supplemental, but discretionary, jurisdiction
over Ms. Kent’s state law claims.

As this Court has said,

however, in most cases where both federal and state claims have
been asserted, “after the federal claims have been dismissed,
pendent state law claims should also normally be dismissed.”
Clellan v. Karnes, 2011 WL 3627399, *5 (S.D. Ohio Aug. 17, 2011);
see also 28 U.S.C. §1367(c).
that practice here.

There is no reason to deviate from

The Court will dismiss all of the state law

claims without prejudice.
V.
Detective Gantt has also moved for sanctions against both
Ms. Kent and her attorney for the way in which he was served with
process.

The Court certainly does not approve of the type of

subterfuge used in this case, especially when there would appear
to have been no reason not to obtain either a waiver of service
or service by much more straightforward means.

Nevertheless,

there is absolutely no evidence that either Ms. Kent or her
attorney directed service to made in this way or had any advance
knowledge that it would occur.

Detective Gantt’s attorney, at

the initial pretrial conference, stated that he was not asking
for an evidentiary hearing on the motion.
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Without evidence that

either Ms. Kent or her attorney had the slightest idea that
service would occur inappropriately here, the Court does not
believe that sanctioning either of them would be proper.

The

motion for sanctions cites to no authority where a Court has
imposed sanctions under such circumstances.

The motion for

sanctions will be denied for these reasons.
VI.
Based on this Opinion and Order, the Court grants the motion
to dismiss (Doc. 4) and denies the motion for sanctions (Doc. 7).
Claims One, Two and Three of the complaint, arising under the
First Amendment and the Due Process Clause, are dismissed with
prejudice.

The remaining claims, all arising under state law,

are dismissed without prejudice.

The Clerk is directed to enter

a judgment in favor of the defendant and to terminate this case.
/s/ Terence P. Kemp
United States Magistrate Judge

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