Pullen v. Caldwell et al
DECISION & ORDER - IT THEREFORE IS ORDERED THAT: 1. Defendants Tiffany Caldwell, Jenny Christner, and Interested Party the State of Ohio on behalf of John Doe #1s Motion for Judgment on the Pleadings (Doc. # 14 ) is GRANTED in part and DENIED in pa rt; 2. Such Motion is GRANTED as to Plaintiff Terry Tyrone Pullen, Jr.s claims against Defendants Caldwell, Christner, and Doe #1 under 42 U.S.C. §1983, and those claims are DISMISSED with prejudice for failure to state a cognizable constitut ional claim; 3. Such Motion is GRANTED as to all of Pullen's claims against Defendants Caldwell, Christner, and Doe #1 in their official capacities, and those claims are DISMISSED with prejudice on the basis of sovereign immunity; 4. Such Motio n is GRANTED in part as to Pullen's state law claims Defendants Caldwell, Christner, and Doe #1 in their individual capacities, and those claims are DISMISSED without prejudice for lack of jurisdiction; 5. Such Motion is DENIED in all other re spects, including as to the State Defendants request that Pullen's state law claims against them in their individual capacities be dismissed with prejudice; and 6. Defendants Caldwell, Christner, and Doe #1s Motion to Stay or Modify the Dispos itive Motion Deadline (Doc. # 18 ) and Plaintiff Pullens Motion for Time Exten[s]ion both are DENIED as moot. Signed by Magistrate Judge Sharon L. Ovington on 7/14/21. (pb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TERRY TYRONE PULLEN, JR.,
TIFFANY CALDWELL, et al.,
: Case No. 3:20-cv-198
: Magistrate Judge Sharon L. Ovington
: (by full consent of the parties)
DECISION & ORDER
This matter is before the Court on a Motion for Judgment on the Pleadings
filed by Defendants Tiffany Caldwell, Jenny Christner, and Interested Party the State
of Ohio on behalf of John Doe #11 (“the State Defendants”). (Doc. #14). Plaintiff
Terry Tyrone Pullen, Jr. has not responded to that motion within the extended time
permitted by this Court. (See Doc. # 17).
The State observes that John Doe #1 has not been served and that by appearing on his behalf, it
does not waive lack of service or other defenses. (Doc. #14, p. 2, n.1, citing Ohio Rev. Code §
109.361). Although the lack of service on Doe #1 is not among the bases for judgment set forth in
the State Defendants’ current motion, pursuant to Fed. R. Civ. P. 4(m), a court “must dismiss . . .
without prejudice” the action against any defendant who is not served within 90 days after the
complaint is filed. Plaintiff’s complaint was filed more than one year ago, on June 22, 2020. (See
Doc. #3). Accordingly, irrespective of the Court’s analysis below, Pullen’s claims against Doe #1
would be subject to dismissal without prejudice in their entirety for that additional reason.
Also before the Court are the State Defendants’ unopposed Motion to Stay or
Modify the Dispositive Motion Deadline (Doc. #18) and Pullen’s Motion
Requesting Time Exten[s]ion. (Doc. #20). This Court’s resolution of the Motion for
Judgment on the Pleadings will impact the appropriate outcome of the latter two
FACTUAL & PROCEDURAL BACKGROUND/THE PARTIES’ CLAIMS
On June 22, 2020, Pullen filed a 17-page pro se complaint against Caldwell
and Doe #1, both of whom he identifies as Ohio adult parole officers; Christner,
whom he identifies as an Ohio adult parole supervisor; and two Volunteers of
America [“VOA”] staff members.2 Pullen, who at the time of filing was an inmate
at the Lorain Correctional Institution, alleges that the State Defendants violated his
Fifth, Eighth, and Fourteenth Amendment rights under the U.S. Constitution by
assigning him, upon his February 20, 2020 release from the Ohio State Penitentiary,
to a placement at a VOA halfway house in Dayton, Ohio. Pullen contends that the
State Defendants made that placement assignment without first investigating his
mother’s home as a suitable placement; he avers that his mother’s home was among
three addresses he provided to parole officials as his preferred placement sites while
on Post-Release Control [“PRC”]. He further contends that when he objected to
Pullen’s claims against the VOA Defendants are irrelevant to the current motion and will not be
being required to complete a 120-day program at VOA, he was booked into the
Montgomery County Jail, found guilty of parole violations, and transferred back to
state prison to serve out a parole violation sanction of 120 days of his remaining
Plaintiff’s complaint specifies that the State Defendants are sued in both their
individual and official capacities. (See Doc. #3, p. 14, β 27). In addition to asserting
federal constitutional claims, Pullen alludes to state law claims for breach of
contract, false imprisonment, civil conspiracy, and retaliation, all arising from
Defendant Caldwell’s alleged falsification of information about her investigation of
Pullen’s preferred placement sites, Defendants Caldwell’s and Doe #1’s alleged
conduct in having Pullen assigned to a 120-program at VOA, and Defendant
Christner’s alleged ratification of Caldwell’s and Doe #1’s actions. (See Doc. #3, pp.
10-14, ββ 20-24).
The State Defendants now move for judgment on the pleadings on a variety
of grounds. (Doc. #14). First, they suggest that Pullen’s complaint consists of
“conclusory statements of law” that are inadequate to satisfy Fed. R. Civ. P. 8(a)(2)’s
notice pleading requirements and that such complaint therefore should be dismissed
pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can
be granted. (Id., pp. 2, 8-9). They further assert that the individual State Defendants
are immune from suit in their official capacities, and that the claims against them in
their individual capacities should be dismissed for lack of jurisdiction. (Id., pp. 2, 912). Finally, the State Defendants contend that Pullen has failed to state any viable
constitutional claim because his “general disagreement with the OAPA’s [Ohio
Adult Parole Authority’s] choice of placement is not actionable.” (Id., pp. 2, 12-15).
They ask that Pullen’s claims against them be dismissed with prejudice and that costs
be assessed against him. (Id., p. 15).
APPLICABLE LAW REGARDING JUDGMENT ON THE PLEADINGS
In determining a motion for judgment on the pleadings pursuant to Fed. R.
Civ. P. 12(c), “all well-pleaded material allegations of the pleadings of the [nonmovant] must be taken as true.” U.S. v. Moriarty, 8 F.3d 329, 332 (6th Cir.1993)
(quoting Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir.1993)). “The motion is
granted when no material issue of fact exists and the party making the motion is
entitled to judgment as a matter of law.” Paskvan v. City of Cleveland Civil Serv.
Comm’n, 946 F.2d 1233, 1235 (6th Cir.1991).
Where a Rule 12(b)(6) defense of failure to state a claim upon which relief
may be granted is raised by a Rule 12(c) motion for judgment on the pleadings, the
court must apply the standard for a Rule 12(b)(6) motion. Morgan v. Church’s Fried
Chicken, 829 F.2d 10, 11 (6th Cir.1987). To avoid dismissal under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, “[t]he motion for a judgment
on the pleadings only has utility when all material allegations of fact are admitted or
not controverted in the pleadings and only questions of law remain to be decided by
the district court.” Scuba v. Wilkinson, No. 1:05-CV-718, 2006 WL 1149318, at *1
(S.D. Ohio Mar. 6, 2006), quoting Charles A. Wright and Arthur R. Miller, Federal
Practice and Procedure § 1367 (2005).
Motion for Judgment on the Pleadings
a. Viability of constitutional challenge to PRC placement
Pullen contends that the State Defendants violated his Fifth, Eighth, and
Fourteenth Amendment rights 3 when they assigned him to live at a VOA site during
PRC without first investigating his mother’s home as an appropriate PRC placement.
The Court finds persuasive the Defendants’ contention that Pullen lacked any
protected constitutional interest in the location of his PRC placement.
Ohio Rev. Code § 2967.28 prescribes the period of post-release control to
which any Ohio felony offender “shall” be subject after his or her release from
prison. Until any such offender has successfully completed PRC or a court has
Although he does not explicitly so state, Pullen presumably intends to invoke his rights to due
process and/or equal protection, and against excessive punishment.
terminated that PRC, he or she remains under the supervision of the Ohio Adult
Parole Authority [“OAPA”]. Ohio Rev. Code § 2967.16. Ohio law grants the OAPA
broad discretion in supervising persons on PRC and in enforcing the applicable terms
and conditions, including as to residential and nonresidential sanctions. See, e.g.,
Ohio Rev. Code §§ 2967.131, 2929.16-2929.18.
As previously noted by a court of this district, “Ohio prisoners have no
constitutional entitlement to release on parole before expiration of their maximum
term of imprisonment.” Burke v. Smith, No. 2:07-CV-665, 2008 WL 4448996, at *2
(S.D. Ohio Sept. 26, 2008), citing Inmates of Orient Correctional Institute v. Ohio
State Adult Parole Authority, 929 F.2d 233 (6th Cir.1991); Jago v. Van Curen, 454
U.S. 14, 20-21, 102 S.Ct. 31, 70 L.Ed.2d 13 (1981); Greenholtz v. Inmates of
Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d
668 (1979). In Burke, an Ohio inmate brought a constitutional challenge to the Ohio
Department of Rehabilitation and Correction’s [“ODRC”] cancelation of his early
release on PRC after he participated in the Intensive Prison Program [“IPP”].
Because the applicable regulations gave ODRC discretion regarding the conditions
of the inmate’s release, see id., the federal court found the inmate to have “no
protectible liberty interest” in early release. Id. at *3.
As in Burke, supra, the regulations governing the terms and conditions of
Pullen’s period of post-release control afford broad discretion to the OAPA. Pullen
has cited no authority for the proposition that he has a constitutionally-protected
interest in the location of his placement during PRC, and existing precedent supports
a conclusion that no such protected interest exists. See id. Accordingly, even if the
factual allegations of Pullen’s complaint are accepted as true, Pullen has failed to
“state a claim to relief that is plausible on its face.” See Iqbal, 556 U.S. at 678. The
State Defendants therefore are entitled to judgment on the pleadings as to Pullen’s
claim based on their alleged failure to investigate his mother’s home as a possible
placement while Pullen was on PRC.
A second basis that the State Defendants advance as warranting judgment in
their favor on the pleadings is an assertion that they, as employees of the State of
Ohio, are the beneficiaries of sovereign immunity from suit as to claims brought
against them in their official capacities. They urge that Pullen’s official capacity
claims must be dismissed. Further, they urge that Ohio law provides qualified
immunity from state law claims brought against them in their individual capacities,
and that such claims must be initiated in the Ohio Court of Claims for a
determination of their entitlement to qualified immunity. The State Defendants
contend that Pullen’s claims against them in their individual capacities should be
dismissed because he failed to satisfy that condition precedent to suit in this Court.
Official capacity claims
Suits for monetary damages brought against state employees in their official
capacities are barred by the Eleventh Amendment to the United States Constitution
unless the state itself has consented to be sued. See Papasan v. Allain, 478 U.S. 265,
276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1981). As the United
States Supreme Court made clear in Will v. Michigan Dep’t of State Police, 491 U.S.
58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989),
a suit against a state official in his or her official capacity is not a suit
against the official but rather is a suit against the official’s office. As
such, it is no different from a suit against the State itself.
The State of Ohio has not waived its immunity from suit in federal courts.
Stayner v. Ohio Dep't of Rehab. & Correction, No. 2:09-CV-752, 2010 WL
2620586, at *3 (S.D. Ohio June 25, 2010), citing Mixon v. State of Ohio, 193 F.3d
389, 397 (6th Cir. 1999); Haynes v. Marshall, 887 F.2d 700, 705 (6th Cir.
1989); Johns v. Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985). Because
Ohio’s Adult Parole Authority is an arm of the state, constitutional claims brought
against its employees in their official capacities cannot proceed. Pullen’s claims
against Defendants Caldwell, Christner, and Doe #1 in their official capacities
therefore will be dismissed with prejudice
Individual/personal capacity claims
By statute, the State of Ohio provides its officials and employees with
qualified immunity from liability for state law claims, stating in pertinent part:
[N]o officer or employee shall be liable in any civil action that arises
under the law of this state for damage or injury caused in the
performance of his [or her] duties, unless the officer’s or employee’s
actions were manifestly outside the scope of his [or her] employment
or official responsibilities, or unless the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless manner.
Ohio Rev. Code § 9.86. Designed to be applied in tandem with the above provision,
Ohio Rev. Code § 2743.02(F) further provides that
[a] civil action against an officer or employee ... that alleges that the
officer’s or employee’s conduct was manifestly outside the scope of the
officer’s or employee’s employment or official responsibilities, or that
the officer or employee acted with malicious purpose, in bad faith, or
in a wanton or reckless manner shall first be filed against the state in
the court of claims, which has exclusive, original jurisdiction to
determine, initially, whether the officer or employee is entitled to
personal immunity under section 9.86 of the Revised Code.
As determined by the Sixth Circuit Court of Appeals,
Ohio law requires that, as a condition precedent to asserting a cause of
action against a state employee in his individual capacity, the [Ohio]
Court of Claims must first determine that the employee is not entitled
to the immunity provided for in Revised Code section 9.86. Prior to that
condition being satisfied, then, there is no claim under Ohio law upon
which relief may be granted against state employees in their individual
McCormick v. Miami Univ., 693 F.3d 654, 664-65 (6th Cir. 2012), quoting Haynes
v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989). See also Haynes at 705 (“Under Ohio
law, . . . state employees may not be sued unless and until it has been determined by
the Court of Claims that they are not entitled to immunity”).
In McCormick, “[t]here was no evidence presented that an Ohio Court of
Claims ha[d] determined that the defendants were not entitled to immunity.” Id. at
665. Accordingly, the appellate court affirmed the district court’s dismissal of the
plaintiff’s state law claims for lack of subject matter jurisdiction. Id. The same result
is appropriate here. Plaintiff has not stated that the Ohio Court of Claims previously
addressed the issue of these individual State Defendants’ entitlement to personal
immunity under Ohio Rev. Code § 9.86 as to the state law claims that Plaintiff asserts
against them in this action, and the record does not indicate that such condition
precedent has been satisfied. Accordingly, Plaintiff’s state law claims against
Defendants Caldwell, Christner, and Doe #1 in their individual capacities must be
dismissed without prejudice for lack of jurisdiction.
Parties’ Motions to Extend Deadlines
In light of the Court’s foregoing determination that all of Pullen’s claims
against Defendants Caldwell, Christner, and Doe #1 are subject to Fed. R. Civ.
12(b)(6) dismissal, the parties’ separate motions to extend pre-trial deadlines (Docs.
#18, 20) in this matter are moot.
IT THEREFORE IS ORDERED THAT:
Defendants Tiffany Caldwell, Jenny Christner, and Interested Party the
State of Ohio on behalf of John Doe #1’s Motion for Judgment on the
Pleadings (Doc. #14) is GRANTED in part and DENIED in part.;
Such Motion is GRANTED as to Plaintiff Terry Tyrone Pullen, Jr.’s
claims against Defendants Caldwell, Christner, and Doe #1 under 42
U.S.C. §1983, and those claims are DISMISSED with prejudice for
failure to state a cognizable constitutional claim;
Such Motion is GRANTED as to all of Pullen’s claims against
Defendants Caldwell, Christner, and Doe #1 in their official capacities,
and those claims are DISMISSED with prejudice on the basis of
Such Motion is GRANTED in part as to Pullen’s state law claims
Defendants Caldwell, Christner, and Doe #1 in their individual
capacities, and those claims are DISMISSED without prejudice for lack
Such Motion is DENIED in all other respects, including as to the State
Defendants’ request that Pullen’s state law claims against them in their
individual capacities be dismissed with prejudice; and
Defendants Caldwell, Christner, and Doe #1’s Motion to Stay or
Modify the Dispositive Motion Deadline (Doc. #18) and Plaintiff
Pullen’s Motion for Time Exten[s]ion both are DENIED as moot.
July 14, 2021
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge
The Clerk of Court is directed to serve the following party by mail:
Terry Tyrone Pullen, Jr., #A686539
Toledo Correctional Institution
P.O. Box 80033
Toledo, OH 43608
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