Kuczak v. City of Trotwood Police Department et al

Filing 50

REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION TO DISMISS AND TO REMAND THE ADMINISTRATIVE APPEAL (DOC. 40 ) BE DENIED. Objections to R&R due by 7/25/2016. Signed by Magistrate Judge Michael J. Newman on 7/8/2016. (dm) Modified on 7/8/2016 (dm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PATRICIA J. KUCZAK,
Case No. 3:13-cv-101
Plaintiff,
vs.
CITY OF TROTWOOD, OHIO, et al.,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendants.

REPORT AND RECOMMENDATION1 THAT DEFENDANTS’ MOTION TO DISMISS
AND TO REMAND THE ADMINISTRATIVE APPEAL (DOC. 40) BE DENIED

This civil case -- which was recently referred to the undersigned (doc. 46) -- is before the
Court on Defendants’ combined motion to dismiss the second amended complaint and to remand
Plaintiff’s administrative appeal to the Montgomery County, Ohio Court of Common Pleas.
Doc. 40.

Plaintiff filed a memorandum in opposition to Defendants’ motion.

Doc. 42.

Thereafter, Defendants filed a reply memorandum. Doc. 45. The undersigned has carefully
considered each of these documents, and Defendants’ motion is now ripe for decision.
I.
On or about November 6, 2012, the City of Trotwood Police Department cited Plaintiff
for speeding. See doc. 1-4 at PageID 64. The alleged speeding offense was caught by a City of
Trotwood speed camera. Id. Plaintiff purportedly appealed the citation and, following an
administrative appeal hearing, a hearing officer found Plaintiff responsible for the alleged
offense and ordered her to pay an $85.00 civil penalty. Id.

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendation.

Thereafter, Plaintiff appealed to the Montgomery County, Ohio Court of Common Pleas
and, in addition to the administrative appeal, asserted claims under 42 U.S.C. § 1983 alleging
that the City’s traffic speed enforcement camera ordinances violate her due process rights under
Fifth and Fourteenth Amendments of the United States Constitution (as well as her rights under
the Ohio Constitution).

See doc. 6 at PageID 78-81. Among other alleged constitutional

deprivations, Plaintiff alleges that the ordinances deprive her of her right to present all arguments
and defenses available to her under the law. See doc. 37 at PageID 300. Defendants removed
the case to this Court on the basis that Plaintiff asserts federal claims under 42 U.S.C. § 1983,
and now seek to dismiss the complaint on the authority of the Supreme Court of Ohio’s decision
in Walker v. Toledo, 39 N.E.3d 474 (Ohio 2014).
II.
While Defendants caption their motion as one to dismiss under Fed. R. Civ. P. 12(b)(6),
because they have answered the amended complaint (doc. 39), their motion is technically a
motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). The standard for determining
a motion for judgment on the pleadings is, however, the same as that for determining a Rule
12(b)(6) motion to dismiss. Lindsay v. Yates, 498 F.3d 434, 437 n.5 (6th Cir. 2007). Such
motion operates to test the sufficiency of the complaint and permits dismissal for “failure to state
a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
To show grounds for relief, Fed. R. Civ. P. 8(a)(2) requires that the complaint contain a
“short and plain statement of the claim showing that the pleader is entitled to relief.” While Fed.
R. Civ. P. 8 “does not require ‘detailed factual allegations,’ . . . it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Pleadings offering
2

mere “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’” Id. (citing Twombly, 550 U.S. at 555). In determining a motion to dismiss, “courts ‘are
not bound to accept as true a legal conclusion couched as a factual allegation.’” Twombly, 550
U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Further, “[f]actual allegations
must be enough to raise a right to relief above the speculative level.” Id.
In order “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S.
at 678. In addition to well-pleaded allegations in the complaint, courts may also consider
“matters of public record, orders, items appearing in the record of the case, and exhibits attached
to the complaint[.]” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001) (citation omitted).
A claim is plausible where “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. Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged
-- but it has not ‘show[n]’ -- ‘that the pleader is entitled to relief.’” Id. at 679.
III.
As noted above, Defendants seek to dismiss the complaint on the authority of Walker.
Doc. 40 at PageID 314. In that case, the court made two holdings: (1) “[n]either [Ohio Rev.
Code] § 1901.20 nor [the] Ohio Constitution, Article IV, Section 1 are offended when a home
rule municipality enacts, by ordinance, a civil administrative process for photo enforcement of
speed and red light violation”; and (2) Ohio Rev. Code § 1901.20 “does not confer exclusive
jurisdiction over civil administrative violations of municipal codes to municipal courts.” Walker,
3

39 N.E.3d at 476. Neither holding directly addresses Plaintiff’s specific due process claims in
this case -- i.e., that the administrative process adopted by the City of Trotwood deprives her of
due process of law -- nor conclusively dictates that judgment in favor of Defendants must issue
as a matter of law.
Defendants do argue, however, that the Walker decision implicitly accepts the sufficiency
of the processes here at issue, see doc. 40 at PageID 320, and further state that Plaintiff’s due
process claims have no merit because “there is no requirement in Ohio that an administrative
hearing be conducted with the same formalities and protections or a typical court proceeding.”
Doc. 40 at PageID 320. Certainly, courts have considered and concluded that, in similar cases
where the administrative process results in a civil penalty, as opposed to a criminal sanction,
many procedures -- such as adherence to the Rules of Evidence -- do not apply. See Balaban v.
City of Cleveland, No. 1:07-cv-1366, 2010 WL 481283, at *6-7 (N.D. Ohio Feb. 5, 2010).
The court in Balaban -- whose decision is, notably, not binding on this Court -- found
that the plaintiff there had no procedural due process right to apply typical criminal procedural
safeguards or the Rules of Evidence to civil administrative proceedings. Id. There, the court
reached that decision only after extensively analyzing whether the ordinance in question imposed
a civil penalty, as opposed to a criminal sanction. Id. at *3. Defendants engage in no such
analysis and, further, offer no discussion comparing the ordinances at issue here with the
ordinances at issue in that case. As a result, Defendants merely assume that the Trotwood
Ordinances impose a civil penalty and that this Court would agree with the decision in Balaban
without any discussion as to why it should do so.

4

The undersigned declines to engage in such an extensive analysis in the absence of
developed argument by Defendants.

Finding that Walker does not directly address the

procedural due process issues presented here, Defendants’ motion should be denied.
The undersigned further finds that, even assuming, arguendo, this Court accepts the nonbinding conclusions in Balaban, that decision does not address all of the procedures Plaintiff
alleges she was deprived of here. In fact, Defendants do not directly address whether the
ordinances in question deprived Plaintiff of the full and fair opportunity to be heard -- by
precluding defenses otherwise available under the law. See doc. 37 at PageID 301. Notably,
Trotwood Ordinance § 333.09 purports to impose a civil penalty where the driver operates a
vehicle “in excess of [the] posted speed limit in violation of Section 333.03 of the Trotwood”
Ordinances. See doc. 20-1 at PageID 137. However, contrary to the language of § 333.09,
operating a vehicle in excess of the posted speed limit is not necessarily a per se violation of
Trotwood Ordinance § 333.03. Doc. 42-3 at PageID 42-3. Instead, a driver violates Trotwood
Ordinance § 333.03 by operating, “a motor vehicle at a speed greater . . . than is reasonable or
proper, having due regard to the traffic, surface, and width of the street or highway and any other
conditions[.]” Id.
While there are instances under § 333.03 in which exceeding a certain speed is a per se
violation -- i.e., a speed in excess of fifty-five miles per hour on streets or highways, see doc. 423 at PageID 351-52 -- none of those instances appear to be at issue in this case.2 Thus, under
§ 333.03(d) of the Trotwood Ordinances, if Plaintiff actually drove in excess of the posted speed
limit, such act is only prima facie unlawful. Under Ohio law, Plaintiff possesses the right to
rebut such a presumption “by . . . showing that . . . the speed was reasonable under the conditions
2

Defendants have acknowledged in other filings in this case that Plaintiff was allegedly travelling
51 miles per hour in a 35 miles per hour zone. See doc. 18 at PageID 122.
5

present at the time [she] was charged with speeding.” Columbus v. Bell, No. 09AP-1012, 2010
WL 2555108, at *4 (Ohio Ct. App. June 24 2010). It appears -- and is alleged -- that Plaintiff
was deprived of this opportunity in this case. In fact, a review of the administrative appeal
procedures set forth in Trotwood Ordinance §§ 333.09(c)(3), (d)(2) & (d)(6) demonstrates that
drivers are essentially precluded from arguing, and hearing officers are essentially precluded
from considering, arguments regarding a reasonable and proper speed, i.e., an essential element
of a § 333.03 offense. See doc. 20-1 at PageID 137-38.
Defendants acknowledge that Plaintiff has a due process right to be heard. See doc. 40 at
PageID 320; doc. 45 at PageID 398. Generally, in this regard, “[d]ue process requires that there
be an opportunity to present every available defense.” Cf. Am. Sur. Co. v. Baldwin, 287 U.S.
156, 168 (1932); Patterson v. New York, 432 U.S. 197, 210 (1977) (noting that due process
requires the prosecution prove “all of the elements included in the definition of the offense of
which the defendant is charged”); see also Sohi v. Ohio State Dental Bd., 720 N.E.2d 187, 193
(Ohio 1998) (finding a procedural due process violation in an administrative hearing where the
movant was “effectively denied the ability to present a defense”). Defendants, in their motion,
do not address this alleged due process violation with any developed argumentation. See docs.
40, 45.
Accordingly, the undersigned finds that Plaintiff alleges a plausible claim in this regard
and, therefore, Plaintiff’s due process claim (i.e., denial of a full and fair opportunity to be heard
and to present all available defenses) survives at this stage of the litigation.

6

IV.
Based upon the foregoing, the undersigned RECOMMENDS that Defendants’ motion to
dismiss (doc. 40) be DENIED. Further, finding dismissal unwarranted, the undersigned further
RECOMMENDS that Defendants’ request for remand be DENIED.
IT IS SO ORDERED.

Date:

July 8, 2016

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

7

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within FOURTEEN days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is
extended to SEVENTEEN days because this Report and Recommendation is being served by
one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be
extended further by the Court on timely motion for an extension. Such objections shall specify
the portions of the Report and Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report and Recommendation is based in
whole or in part upon matters occurring of record at an oral hearing, the objecting party shall
promptly arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within FOURTEEN days after being
served with a copy thereof.

As is made clear above, this period is likewise extended to

SEVENTEEN days if service of the objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C),
(D), (E), or (F). Failure to make objections in accordance with this procedure may forfeit rights
on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d
947, 949-50 (6th Cir. 1981).

8