Sollenberger v. SollenbergerSollenberger v. Sollenberger
DECISION AND ENTRY GRANTING DEFENDANT PLUMMER AND SHERIFF DEFENDANTS’ MOTION TO DISMISS (DOC. 13), GRANTING DEFENDANT SOL-LENBERGER’S MOTION TO DISMISS (DOC. 2-1, аt PagelD# 126-27), GRANTING DEFENDANT ES-TRIDGE’S MOTIONS TO DISMISS (DOC. 17), AND TERMINATING CASE.
Plaintiff Michael J. Sollenberger (“Plaintiff Sollenberger”) filed suit against Jennifer A. Sollenberger (“Defendant Sollenber-ger”) and Dannelle Estridge (“Defendant Estridge”)
Pending before the Court is Defendant Plummer and Sheriff Defendants’
I. FACTUAL AND PROCEDURAL , HISTORY
In the context of a motion to dismiss, the Court must .accept as true all of the factual allegations, contained in the complaint. In the context of a motion for judgment on the pleadings, the Court may also consider court decisions and other public records. Plaintiffs Complaint includes the following factual allegations:
Plaintiff Sollenberger is a resident of Montgomery County, Ohio, and was formerly employed by the Montgomery County Sheriffs Office in Dayton, Ohio. (Doc. 2-1, at PagelD# 88-89.) Plaintiff Sollenber-ger and Defendant Sollenberger are currently married, but in the process of finalizing divorce proceedings in the Court of Cоmmon Pleas of Montgomery County, Ohio. (Id., at PagelD# 89.) Plaintiff Sollen-berger and Defendant Sollenberger were physically separated during the divorce proceedings. (Id.)
On or about April or May 2014, Defendant Sollenberger noticed their son' — -who was staying at her residence for the week — looking through her bedroom dresser drawers.
Following a discussion with friends, Defendant Sollenberger suspected Plaintiff Sollenberger’s old cell phone might contain certain information regarding Plaintiff Sol-lenberger. (Doc.' -2-1, at PagelD# 89.) In May 2014, Defendant Sollenberger gave possession of Plaintiff -Sollenberger’s old
In August 2014, Defendant Sollenberger sent some, but not all, of the information stored by Defendant Estridge to the National Association for the Advancement of Colored People (“NAACP”). (Id.) In December 2014, a representative from the NAACP provided the Montgomery County Sheriff’s Office with 105-eopied pages of text messages. (Id.) Upon review of these text messages, the Sheriffs Office initiated an administrative investigation into Plaintiff Sollenberger and other Sheriffs Office employees. (Id.) The pages contained statements by the Plaintiff that were derogatory and expressed a desire to harm minority members of the community.
1. “I’ll stab a coon.” (Doe. 13-2, at Pa-gelD# 457.)
2. “BTW the niggers are trying to take over Boston’s.” (Id.)
3. “I hate niggers. That is all.” (Doc. 13-3, at PagelD# 458.)
4. “Just because a nigger scammed the election and is pres. It does not give the G-damn right to shop at DLM.” (Id., at PagelD# 453.)
5. “Thank you for stepping up and wanting to kill Muslim sand niggers when no one else would.” (Doc. 13-2, at PagelD# 367.)
6. “He’s a half[-]breed. It’s not his fault is [sic] mom was a mud shark communist whore.” (Id., at PagelD# 375.)
7. “[H]ope he was screaming as he died and his negro friends were freaking out.” (Id., at PagelD# 387.)
8. “Watching history channel on MLK Showing old films of restaurants in the south. It would have been fun to beat up coloreds cause [sic] they came into your restaurant.” (Id., at PagelD# 391.)
9. “I dislike coloreds.” (Id., at Pa-gelD# 396.) .
10. “Did you see the niggers that made the news in Texas because they refused to pay the gratuity on a party of ten [?]”(Doс. 13-3, at Pa-gelD# 412.)
11. “U [sic] ever see that nigger reporting for Fox 45? The. only thing he’s missing is a blunt and a Jew rag.” (Id., at PagelD# 432.)
On December 16, 2014, Defendant Sol-lenberger met with an employee of the Sheriffs Office to discuss how she came into possession of the information extracted from Plaintiff Sollenberger’s old cell phone. (Doc. 2-1, at PagelD# 89.) At this point, Defendant' Sollenberger provided one of Plaintiff- Sollenberger’s cell phones to the employee, and Defendant Hutson used the Sheriffs Office software for forensic imaging, and then, returned the cell phone to Defendant Sollenberger. (Id., at PagelD# 90.) The information provided to the Sheriffs Office by the NAACP was not contained on this cell phone. (Id.)
The .Sheriffs 'Office determined that Plaintiff Sollenberger violated the Sheriffs Office Professional Conduct Rules. (Id.) On December , 1, 2014, Plaintiff Sollenberger was placed on. administrative leave, and ultimately, terminated on February 6, 2015. (Id.)
Plaintiff Sollenberger filed suit on May 15, 2015, in the Court of Common Pleas of Montgomery County, Ohio, in which he alleged state law claims and violations of his federal constitutional rights and sought recovery under 42 U.S.C. § 1983. (Doc. 2-1, at PagelD# 87-95.) Pursuant to 28 U.S.C. § 1441, ^Defendants removed the case to this Court. (Doc. 2, at Pa-gelD# 76-78; Doc. 2-1, at PagelD# 79-156; Doc. 2-2, at PagelD# 157.)
Plaintiff Sollenberger’s Complaint presents six claims. (Doc. 2-1, at PagelD# 87-95.) • The first three and sixth causes of action allege claims under Ohio law, namely: invasion of privacy against all Defendants (First Claim); asserted civil claim for uncharged criminal act pursuant to O.R.C. § 2307.60 against all Defendants (Second Claim); tortious interference with an employment relationship against Defendants Sollenberger and Estridge (Third Claim); and civil conspiracy against all Defendants (Sixth Claim). (Id., at PagelD# 90-92, 94) Plaintiff .Sollenberger’s remaining claims arise under 42 U.S.C. § 1983: a claim for unlawful search and seizure against Sheriff Defendants (Fourth Claim);' and a claim against Defendant Plummer, in his official capacity, for failure to train Sheriff Defendants (Fifth Claim). (Id,, at PagelD# 92-94.)
Defendant Plummer and Sheriff Defendants filed a Motion to Dismiss
Defendant Estridge filed a Motion to Dismiss
Defendant Sollenberger filed a Motion to Dismiss on June 05,-2015 in the Court of Common Pleas of Montgomery County, Ohio. (Doc. 2-1, at PagelD# 126-27.)
II. STANDARD OF REVIEW — MOTION TO DISMISS
“The standard of review for a Rule 12(c) motion is the same as for- a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.” Fritz v. Charter Twp. of Comstock,
The purpose of a Rule 12(b)(6) motion to dismiss is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in -the complaint is true. Mayer v. Mylod,
To survive a 12(b)(6) motion to dismiss, a plaintiff must provide more than lаbels and conclusions, and a formulaic recitation of the elements of a cause of action is not enough. Bell Atl. Corp. v. Twombly,
However, the Supreme Court has held that:
[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable'to legal conclusions'. Threadbare recitals of the elements of a cause of action, supported by mere conelusory statements, do not suffice. Twombly,550 U.S. at 555 ,127 S.Ct. 1955 (Although for the purposes of a ftiotion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a' legal conclusion couched as a factual allegation”). Rule 8 marjcs a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of1 discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint th'at states a plausible claim for relief survives a motion to dismiss. Id. at 556,127 S.Ct. 1955 . Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [Iqbal v. Hasty,] 490F.3d [143,] 157-58 [(2d Cir.2007)]. But where 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.” Fed. R. Civ. P. 8(a)(2).
Ashcroft v. Iqbal,
The Sixth Circuit has also noted that to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a.. .complaint must contain either direct or inferential allegations respecting-all the material elements to sustain a recovery under some viable legal theory.” Columbia Nat. Res., Inc. v. Tatum,
In evaluating whether the plaintiff has stated a cognizable claim, the court generally may not consider matters outside of the pleadings. See Hammond v. Baldwin,
The Sixth Circuit has clarified the scope of what the court may consider without reaching “matters outside of the pleadings.” Generally speaking, while a plaintiff is not required to attach to the сomplaint documents upon which his action is based, Fed. R. Civ. P. 10(c) considers “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” See Weiner v. Klais & Co.,
This acts as a protection for the defendant, without which “a plaintiff with a legally deficient claim could survive a motion to dismiss. simply by failing to attach a dispositive document upon which it relied.” Weiner,
Notwithstanding, the ability of a court to consider supplementary documents is not without limitations. The Sixth Circuit has explained that “[w]hile documents integral to the complaint may be relied upon, even if they are not attached or incorporated by
III. ANALYSIS
A. Plaintiff Sollenberger’s federal claims under 42 U.S.C. § 1983
Defendant Plummer and Sheriff Defendants argue that Plaintiff Sollenberger’s federal law claims fail as a matter of law and because they are entitled to the protections of the doctrine of' qualified immunity. (Doc. 13, at PagelD# 336-42, 346-52.) Although dismissals on the basis of qualified immunity are generally made pursuant to- summary judgment motions, Grose v. Caruso,
Under the doctrine of qualified immunity, government officials performing discretionary functions are afforded immunity under 42 U.S.C. § 1983, as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
Qualified immunity analysis involves three inquiries: (i) “whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred;” (ii) “whether the violation involved a clearly established constitutional right' of which a reasonable person would have known;” and (iii) “whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Radvansky v. City of Olmsted Falls,
“Since qualified immunity is a defense, the burden of pleading it rests with the defendant.” Gomez v. Toledo,
1. Unlawful Search against Sheriff Defendants (Fourth Claim)
Plaintiff Sollenberger claims that because Sheriff Defendants conducted a forensic examination of his old cell phone “[without any warrant, court order, subpoena, or [Plaintiff Sollenberger’s] consent,” their actions constituted an unreasonable search, in violation of the Fourth and Fourteenth Amendments,
Claims for an unlawful search arise under the Fourth Amendment, which; provides that “the right of the people .to be secure in their persons, houses, papers, and effects; against unreasonable searches and seizures, shall not be violated_” United States v. Mendenhall,
Assuming arguendo — Plaintiff Sollen-berger has sufficiently plead facts to support a reasonable expectation of privacy in his old cell phone, application of the Fourth Amendment does not stop when the Government acts in its capacity as an employer. Treasury Emps. v. Von Raab,
This application is only the bеginning of the inquiry because what is considered reasonable depends on the context of the search. New Jersey v. T.L.O.,
It is well settled that a warrantless search or seizure is presumptively unreasonable under the' Fourth Amendment. U.S. Const. amend. IV; see also United States v. Jones,
In Jackson, the Sixth Circuit “upheld the dismissal of a police chiefs claim that his office was unreasonably searched after he was reassigned from his duties upon
Here, in December 2014, the Montgomery County Sheriffs Office received and reviewed 105-eopied pages of text messages from the NAACP. (Doc. 2-1, at PagelD# 89.) The Sheriffs Office review of the information provided by the NAACP was reasonable because law enforcement is permitted to review evidence presented to them by private, third parties. See Clements-Jeffrey v. City of Springfield,
Following this review, the Sheriffs Office initiated an investigation against Plaintiff Sollenberger and the other employees involved. (Doc. 2-1, at PagelD# 89.) The 105-eopied pages provided “reаsonable grounds” for suspecting that a search of Plaintiff Sollenberger’s old cell phone would yield evidence that Plaintiff Sollen-berger was “guilty of work-related misconduct.” See O’Connor,
As a part of this investigation, digital information was accessed and extracted from Plaintiff Sollenberger’s old cell phones- to authenticate the pages received by the NAACP. (Doc. 2-1, at PagelD# 90.) Like the plaintiff in Hampton, Plaintiff Sollenberger has not alleged facts that suggest it would be unreasonable, given the context of the Sheriffs Office investigation against him, to suspect the cell phone to contain evidence of his work-related misconduct. See, e.g., Manasco v. Bd. of Police Comm’rs, No. 4:11-CV-00557-CDP,
Additionally, Sheriff Defendants argue that the search was permissible because Plaintiff Sollenberger’s wife, Defendant Sollenberger provided consent. (Doc. 13, at PagelD# 341-42.) Whether authority exists to consent to a search is a “recurring factual question to which law enforcement officials must be expected to apply them judgment; and all the Fourth Amendment requires is that they answer it reasonably-” Ill. v. Rodriguez,
The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a residеnt of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape.
Id. In support of their argument, Sheriff Defendants cite to Cowans v. Bagley. (Doc.
Here, on December 16, 2014, Sheriff Defendants conducted an interview with Defendant Sollenberger where she explained that “they were currently awaiting final results of their divorce trial”, and that “[Plaintiff Sollenberger] moved out of the house.”
•Although Plaintiff Sollenberger alleges that Defendant Sollenberger possessed his old phone without his knowledge or consent, the pleadings fail to address whether or not the old phone was essentially abandoned, diminishing any reasonable expectation of privacy. Rather, the facts as alleged support the assertion that Sheriff Defendants’ could have reasonably concluded Defendant Sollenberger’s consent to the search was valid because the- old phone was abandoned, as it was left behind at Defendant Sollenberger’s residence when he moved out, the phone remained there for an extended period, and the phone did not contain any sort of .password protection. (Doc. 11-2, at PagelD# 235; Doc. 8, at 9.) Therefore, Plaintiff Sollen-berger has not alleged facts sufficient to establish Defendant Sollenberger’s inability to give consent to the search. .
Even assuming Defendant Sollenberger was unable to give valid consent and Sheriff Defendants were aware of this fact-construing all facts in Plaintiff Sollénber-ger’s favor — the Court cannot conclude Plaintiff Sollenberger has plead sufficient facts to’ support an unreasonable search at its inception. Therefore, the search is removed from the bounds of Fourth Amendment protection. Plaintiff Sollenberger’s unlawful search claim fails the first prong of the qualified immunity analysis because he fails to state a constitutional claim.
Next, for a search to be reasonable in scope, it must reasonаbly relate to the objectives of .the search and not excessively intrude in light of the nature of the misconduct. O’Connor,
The Court in Quon did state “OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been,” 560 U.S.,at 762-63,
Nevertheless, had Plaintiff Sollen-berger alleged facts establishing a violation of a constitutional right, he must also allege plausible facts that the violation was of a “constitutional right that was clearly established law at the time, such that a reasonable officer would have known that his conduct violated that right.” Johnson v. Moseley,
Here, Sheriff Defendants argue that the federal courts have not clearly established the parameters of reasonable searches of electronic communications, and specifically,- employee text messages. (Doc. 13, at PagelD# 347-48.) “The Supreme Court’s more-recent precedent shows a marked lack of clarity in 'what privacy expectations as to content of electronic communications are reasonable.” Rehberg
Plaintiff Sollenberger argues that his constitutional right was clearly established based on the Supreme Court’s decision in Riley v. California. (Doc. 19, at 4-5, 16.) The Court stated that officers must generally secure a warrant before conducting a search of data on cell phones. Riley v. California, — U.S.-,
Assuming arguendo, Plaintiff Sollenber-ger sufficiently pleaded the first element of qualified immunity; he has nevertheless failed to establish actions that were objectively unreasonable and constituted a violation of a clearly established constitutional right. Therefore, Plaintiff • Sollénbefger’s unlawful search claim fails the second and third elements of the' qualified immunity analysis. Thus, the Court DISMISSES Plaintiff Sollenberger’s unlawful search claim, without prejudice.
2. Failure to train against Defendant Plummer (Fifth Claim)
Defendant Plummer is being sued in his official capacity as Sheriff of Montgomery County, Ohio. (Doc. 2-1, at Pa-gelD# 88.) “[A] suit against a governmental officer ‘in his official capacity’ is the same as a suit ‘against [the] entity of which [the] officer is an agent,’ and ‘imposes liability on the entity that [the officer] represents.” Wood v. Plummer, No. 3:11— CV-00032,
Howevér, “ ‘a local government may not be sued under § 1983 for an injury inflicted solely, by its employees or agents’ on a theory of vicarious liability.” Shoup,
A failure to train claim can only be1 based on insufficient police training when the failure equates to a “deliberate indifference to the rights of persons with whom the police come into contact.” Harris,
The second element is met in two possible situations. Ellis,
The other situation where a plaintiff can sufficiently state a claim for failure to train amounting to deliberate indifference is to allege a “failure to provide adequate training in light of foreseeable consequences that could result from a lack of instruction.” Shaner,
Although failing to sufficiently plead one element is adequate for dismissal, the Court notes that Plaintiff Sollenberger also fails to allege facts to state the third element of his failure to train claim. Here, he has failed to make any factual allegations explaining how the County failed to train its officers, as well as any other factual allegations that would support his claim, beyond the search of his old cell phone. Therefore, the Court DISMISSES Plaintiff Sollenberger’s failure' to train claim, without prejudice.
B. Plaintiff Sollenberger’s state law claims againstJ Defendant Plum-mer and Sheriff Defendants
1. Statutory Immunity for Ohio state law claims
Defendant Plummer and Sheriff Defendants argue that they enjoy statutory immunity from Ohio tort law claims as to a political subdivision and its employees because Plaintiff Sollenberger sued them in their individual and official capacities, respectfully. (Doc. 13, at PageID#343.) In response, Plaintiff Sollenberger argues that Defendant Plummer is precluded from immunity because the search, and the claims related thereto, arose out of Defendant Plummer’s employment relationship. (Doc. 19, at 11-12.)
R.C. 2744.02(A)(1) provides “a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of -the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” There are also exceptions to a political subdivision’s immunity, as well as certain defenses to those exceptions. Sampson v. Cuyahoga Metro. Hous. Auth.,
The first tier sets out a general rule that political actors are not liable for damages. Ohio Rev. Code § 2744.02(A)(1). In the second tier, the Court must determine whether any of the five exceptions to the general rule of immunity is applicable. Ohio Rev. Code § 2744.02(B). The third tier of the analysis requires consideration of whether a defense to liability applies that restores immunity. Ohio Rev. Code §§ 2744.02(B)(l)(a)-(c), 2744.03.
Allen v. Clark, No. 1:13-CV-00326,
The first determination is whether the employees fall within the definition of a “political subdivision.” Hubbard v. Canton City School Bd. of Edn.,
The' next step is determining if any of the five exceptions to immunity enumerated in Section 2744 apply. Shoup,
In response,( Plaintiff Sollenberger contends that Section 2744.09(B) is applicable and excepts his claim from immunity'under Section 2744.02. (Doc. 19, at-11-12.) Section 2744.09(B) states
This chapter does not apply to, and shall not be construed to apply to, the following: ... (B) Civil actions by an employee, or the collective -bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and' the political subdivision_
Plaintiff Sollenberger argues that R.C. 2744.09(B) renders R.C. -Chapter 2744 precluded because the state law claims alleged arose out of Defendant Plummer’s employment relationship. (Doc. 19, at 12.) Plaintiff Sollenberger -concedes thаt this argument is applicable only to Montgomery County, and not the individual Sheriff Defendants. (Id.) The Ohio Supreme Court in Sampson stated, “[w]hen an employee of a political subdivision brings a civil action against the political subdivision alleging an intentional tort, that civil action may qualify as a ‘matter that arises out of the employment relationship’- within the meaning of R.C. 2744.09(B).” Sampson v. Cuyahoga Metro. Hous, Auth.,
In Sampson, a political subdivision accused the plaintiff of misconduct when working as a plumber, including responding to service calls and emergencies as well as his use of the employer’s gas cards during transportation. Here, Plaintiff Sol-lenberger argues that his actions arose out of his employment relationship. because “the search was motivated by alleged employee misconduct and protecting the public[,]” stating the position of Sheriff Defendants that Plaintiff Sollenberger was unable to fulfill his duties as a Detective. (Doc., 19, at 12.) Consistent with Sampson, Plaintiff Sollenberger has alleged . facts sufficient to demonstrate, his actions arose out of his employment relationship .because the Sheriffs Office accused, and investigated Plaintiff Sollenber-ger of misconduct in carrying out his duties as an employee. Therefore, R.C. 2744.09(B) would remove the immunity protection afforded under Section 2744.02 to Defendant Plummer.
It is unclear whether R.C. 2744.03(A)(3) reattaches the immunity protection removed by Section 2744.09(B). See Fuller v.
Here, Plaintiff Sollenberger does not allege that Defendant Plummer ordered, possessed prior knowledge of, participated in, or acted in reckless disregard of Sheriff Defendants’ actions in searching the old phone. Rather, Plaintiff Sollenberger argues in his response “[Defendant Plummer] undoubtedly ratified all of the employees” prior conduct--when [Plaintiff Sollenberger] was placed on administrative leave and subsequently terminated.” (Doc. 19, at 14.) An inference may be made that Defendant Plummer, as Sheriff, was aware of Plaintiff Sollenberger’s termination. However, even assuming this conclusory statement as fact, it does not support Defendant Plummer’s reckless disregard of, or involvement in, the alleged misconduct of his deputies, which was the alleged improper search of the old cell phone, not Plaintiff Sollenberger’s termination.
Moreover, there are no facts alleged demonstrating any involvement, knowledge of, participation, or reckless disregard of the alleged misconduct' by Defendant Plummer that would remove him from the protections of R.C. 311.05. “Negligence or inaction alone are insufficient in themselves to show ratification of an agent’s unauthorized act, but ratification must follow knowledge of the facts.” Morr v. Crouch,
While Plaintiff Sollenberger did allege he was placed on administrative leave and subsequently terminated, a fact that must be áccepted as true; Plaintiff Sollenberger does not allege any facts beyond what can be inferred as mere inaction or silence, nor does he allege that Defendant Plummer was fully informed of all material facts of the alleged misconduct. Therefore, the Court DISMISSES Plaintiff Sollenber-ger’s’invasion of privacy claim, civil claim pursuant to R.C. 2307.60, and civil conspiracy claim against Defendant Plummer, without prejudice.
Additionally, Plaintiff Sollenberger argues certain exceptions that fall within the second tier of the analysis and, if plausibly stated, are applicable against Sheriff Defendants. (Doc. 19, at 14.) .
Plaintiff Sollenberger argues that Section 2744.02(B)(5) applies to Sheriff Defendants because civil liability may be imposed upon á political subdivision by a section of the Ohio Revised Code. (Id., at 14.) Additionally, Plaintiff Sollenberger argues liability is imposed under the exceptions to immunity púrsuant to R.C. 2744.03(A)(6)(a)-(c). (Id.) In contrast, Sheriff Defendants argue' that Section 2744.02(B)(5) is inapplicable to individual employees and that Plaintiff Sollenberger has not alleged facts to support the application of any of the three exceptions in R.C. 2744.03(A)(6); therefore, the statute provides them with statutory immunity for Plaintiff Sollenberger’s state law claims. (Doc. 13, at PagelD# 345.)
Here, Plaintiff Sollenberger does not explicitly state that Sheriff Defendants were sued in their individual capacities. “[W]hen a plaintiff does not allege capacity specifically; the court must examine the nature of the plaintiffs claims, the relief sought, and the course of proceedings to determine whether a state official is being sued in a personal capacity.” Biggs v. Meadows,
In Plaintiff Sollenberger’s Complaint, the caption names each Sheriff Defendant, but does not provide a designation describing the capacity in which they are- sued. (Doc. 2-1, at PagelD# 87-88.) The only party with such a dеsignation is Defendant Plummer, who “is being sued in his official capacity as the Sheriff of Montgomery County.” (Id., at PagelD# 88.) Plaintiff Sollenberger names each individual Sheriff Defendant, followed by “was an employee of the Montgomery County Sheriffs Office during the relevant time period, and was operating within the scope of employment at all times alleged herein.” (Id.) Nonetheless, Plaintiff Sollenberger has-sued the Sheriff Defendants for three torts under Ohio law. (Id., at PagelD# 90-92, 94.) Additionally, Plaintiff Sollenberger invoked an exception to statutory immunity for individual defendants under R.C. § 2744.03(A)(6). (Doc. 19, at 14.) Lastly, the Sheriff Defendants raised the qualified immunity defense against Plaintiff Sollen-berger’s federal claims, which is only applicable for defendants sued in their individual capacity. (Doc. 13, at PagelD# 346-49.) In light of these circumstances, it is appropriate to analyze statutory immunity for Sheriff Defendants- as individuals under Section 2744.03.
Pursuant to Section 2744.03(A)(6), an individual employee of a political subdivision is entitled to immunity from tort liability unless “(a) [t]he employee’s acts or omissions were manifestly outside the scope of the employee’s employment or official responsibilities; [or] (b) [t]he employee’s acts or omissions were with malicious purpose, in bad faith; or in wanton or reckless manner; [or] (c) [c]ivil liability is expressly imposed upon the employee by” another provision of the Revised Code. Plaintiff Sollenberger argues that the second and third exceptions apply, because “there are facts and reasonable inferences that the Sheriff Defendants abused the authority with which they аre vested[,]” and the .United States Constitution and the Ohio Revised Code impose liability on a political subdivision. (Doc. 19, at 14.) Sheriff Defendants argue that Plaintiff Sollenberger has failed to- allege any facts that amount to
i. Wanton or Reckless Conduct against Sheriff Defendants
“Wanton” and “reckless” conduct are two different, degrees of care under the statute. Anderson v. City of Massillon,
In Plaintiff Sollenberger’s Complaint, there is not a state law claim that specifically mentions Defendants Parin or Ca-vender. (Doc. 2-1, at PagelD# 90-92, 94.) The facts of his Complaint allege that both officers were employed by the Montgomery County Sheriffs Office, and were operating within the scope of their employment. (Id., at PagelD# 88.) The facts mention Defendant Cavender once more, stating that he arrived at Defendant Sol-lenberger’s residence, but was unable to retrieve the cell phone at that time. (Id., at PagelD# 90.) Plaintiff Sollenberger’s Complaint does not contain any other factual • allegations regarding either officer. (Id., at PagelD# 88-90.) Therefore, Plaintiff Sollenberger’s claim fails as a matter of law. Furthermore, the lack of factual allegations in the Complaint prevents the Court from analyzing the alleged conduct under Section 2744.03(A)(6). Thus, the Court declines to reach the issue of statutory immunity for Plaintiff Sollenberger’s state law claims asserted against Defendants Parin and Cavender under R.C. 2744.03(A)(6)(b).
Defendant Hutson is not specifically mentioned in Plaintiff Sollenberger’s state law claims,. but is mentioned four times in the Complaint’s factual allegations. (Id., at PagelD# 88-90.) Like Defendants Parin and Cavender, Plaintiff Sollenberger’s Complaint alleges that Defendant Hutson was employed by the Montgomery County Sheriffs Office, that he was operating within the scope of his employment, and that he’ had accompanied Defendant Cavender on his unsuccessful trip to Defendant Sollenberger’s residence. (Id.) In addition, Defendant Sollenberger is alleged to have met with Defendant Hutson, who • imaged two phones — one containing the 105-copied pages of text messages received by the NAACP and another containing no such information. (Id., at Pa-gelD# 90.) ’
Here, ■ Plaintiff Sollenberger does not sufficiently plead .facts to demonstrate Defendant Hutson’s failure to exercise any care where there was a great probability of harm, nor do the facts as pleaded sufficiently demonstrate a reckless disregard to conduct an unreasonable search that is substantially greater than negligent conduct. There are no additional facts alleged beyond that a search of his old cell phone occurred, and was conducted by Defendant Hutson within the scope of his employment. Therefore, Defendant Hutson’s search of Plaintiff Sollenberger’s phone, as plead, does not meet the “very high standard” of “wanton” and “reckless” behavior.
Accordingly, the Court grants Defendant Hutson’s request for statutory immunity under Section 2744.03(A)(6) against Plaintiff Sollenberger’s state law tort claims.
ii. Expressly Imposed Liability
Plaintiff Sollenberger has provided several arguments for where civil liability is expressly imposed as - required by R.C. 2744.03(A)(6)(c). (Doc. 19,. at 14.) Section 2744.03(A)(6)(c) provides that employees are immune unless:
Civil liability is expressly imposed upon the employee by a section of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely- because that section imposes a responsibility or mandatory duty upon an employee, because that section provides for a criminal penalty, because of a general authorization in that section that an employee may sue and be sued, or because, the section uses the term “shall” in a provision pertaining to an employee.
First, Plaintiff Sollenberger . argues civil liability is expressly imposed through alleged violations of his Constitutional rights. (Doc. 19, at 14.) However, “constitutional guarantees ' and prohibitions” do not expressly impose liability for their violation. See W.P. v. City of Dayton, No. 22549,
Finally, Plaintiff 'Sollenberger argues that R.C. 2307.60 and 29Í3.04 expressly impose liability as a civil claim for an uncharged criminal act. (Doc. 2-1, at Pa-gelD# 91-92.) Section 2307.60 provides “anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action....” Section 2913.04 is a criminal statute and provides “no person, in any mannér and by any means, including, but not limited to, computer hacking, shall knowingly gain access to” another’s electronic devices. Sheriff Defendants argue that these statutes do not expressly impose liability on a political subdivision, but rather generally impose liability on “persons.” In Cramer v. Auglaize Acres, the Ohio Supreme Court determined that the use of the term “person” in a state statute “was too general to expressly impose liability on an employee of a political subdivision.”
Here, like Cramer and O’Toole, the statutes use the term “person” and do not specifically identify an intention to abrogate the immunity granted to an employee of a political subdivision. However, Chapter 2307 defines “Person” as having “the same meaning as in division (C) of section 1,59 of the Revised Code and additionally includes a political subdivision and the state.” Ohio Rev. Code § 2307(F). Under Chapter 1, “ ‘Person’ includes an individual, corporation, business trust, estate, trust, partnership, and association.” Ohio
For the foregoing reasons, the Court finds Defendant Hutson is entitled to statutory immunity for Plaintiff Sollenberger’s invasion of privacy claim, civil claim pursuant to R.C. 2307.60, and civil conspiracy claim; therefore, these claims are DISMISSED, without prejudice. Additionally, Plaintiff Sollenberger’s invasion of privacy claim, civil claim pursuant to R.C. 2307.60, and civil conspiracy claim, .against Defendants Parin and Cavender are DISMISSED as a matter of law, without prejudice.
C. Sufficiency of alleged state law claims
In addition to statutory immunity, Defendant Plummer and Sheriff Defendants move for dismissal as a matter of law on Plaintiff Sollenberger’s state law claims because they argue that he has not sufficiently alleged facts to support such claims, (Doc. 13, at PagelD# 335-36.) The Court notes that it has granted statutory immunity to Defendants Plummer and Hutson on all of Plaintiff Sollenberger’s state law tort claims, and declined to reach the issue of statutory immunity for Defendants Parin and Cavender. ■ However, the Court did find that Plaintiff Sollenberger’s state law claims failed as a matter of law against Defendants Parin, and Cavender. Therefore, the Court must only test for sufficiency Plaintiff Sollenberger’s state law claims against Defendants Sollenber-ger'and Estridge for invasion of privacy, civil claim pursuant to R.C. 2307.60, tor-tious interference with an employment relationship, and civil conspiracy. Nonetheless, the Court will also analyze the state law claims against Defendant Plummer and Sheriff Defendants for sufficiency.
Defendant Sollenberger has failed to present an argument as to why the Court should dismiss all state law claims against her. (Doc. 2-1, at PagelD# 126-27.) The Local Rules of this District provide that “[a]ll Motions.. .shall be accompanied by a memorandum in support thereof that shall be a brief statement of the grounds, with citation of authorities relied upon.” S.D. Ohio Civ. R. 7.2(a)(1). In failing to provide any discussion beyond “Jennifer A. Sollen-berger, hereby requests this Court to dismiss the action of the Plaintiffi,]” Defendant' Sollenberger has failed to comply with the Court’s requirement of providing the grounds upon which' the motion relies. Despite this failure, Defendant Sollenber-ger’s filings are. liberally construed because she is proceeding pro se. Spotts v. United States,
“In Ohio, the tórt' of invasion of privacy includes four distinct causes of action: (1) intrusion into plaintiffs seclusion, solitude, or private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity that places plaintiff in a false light; and (4) appropriation of plaintiffs name or likeness for defendant’s advantage.” Yoder v. Ingersoll-Rand Co., No. 97-3710,
Collectively, defendants argue that Plaintiff Sollenberger has failed to sufficiently plead facts to establish that he had a reasonable expectation of privacy in the phone or the electronic information contained therein. (Doc. 13, at PagelD# 348; Doc. 17, at 3.) In order to have a legitimate expectation of privacy, society must be prepared to recognize the expectation as reasonáble. Rakas v. Illinois,
Plaintiff Sollenberger alleges that Defendant Sollenberger took the phone without his knowledge or consent, extracted digital information, such as text messages and pictures, and .then, reviewed the information before turning over copies of the text messages to the NAACP and the Montgomery County Sheriffs Office. (Doc. 2-1, at PagelD# 89-90.) However, construing the alleged facts in a light most favorable to the nonmoving party, the phone was Plaintiff Sollenberger’s old cell phone, but Defendant Sollenberger had possession of the cell phone. (Id., at Pa-gelD# 89.) Furthermore, Defendant Sollenberger was in possession of the cell phone “for an extended and continuous period of time.” (Doc. 8, at 31.) The phone was one of Plaintiff Sollenberger’s old cell phones that he left when he moved out of the house, it was located in Defendant Sollenberger’s bedroom dresser drawers, and it was not password protected. (Doc. 11-2, at PagelD# 235; Doc. 8, at 9.) Defendant Estridge argues that these facts and circumstances support the assertion that Plaintiff Sollenberger essentially abandoned the cell phone at Defendant Sollenberger’s residence. (Doc. 22, at Pa-gelD# 565-66.)
The issue of abandonment is not “in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his intеrest in the prop
Assuming arguendo — Plaintiff Sollenberger has sufficiently plead facts to support a reasonable expectation of privacy in his cell phone — his Complaint is still insufficient to state a claim for invasion of privacy. “The intrusion ‘must be of such a character as would shock the ordinary person to the point of emotional distress.’ ” Stonum v. U.S. Airways, Inc.,
Accordingly, Plaintiff Sollenberger has failed to plausibly state a claim for invasion of privacy under Ohio law; therefore, the Court DISMISSES Plaintiff Sollenber-ger’s invasion of privacy claim against all Defendants, without prejudice.
b. Civil Claim pursuant to R.C. 2307.60 (Second Claim)
Plaintiff Sollenberger asserts his second claim pursuant to R.C. 2307.60, “which permits a person injured by another’s criminal conduct to recover against the perpetrator of the crime.” Lazette v. Kulmatycki,
No person, in any manner and by any means, including, but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, computer system, computer network, cable service, telecommunications device, telecommunications service, or information service without- the consent of, or beyond the scope of express or implied consent of, the owner of the computer, computer system, computer network, cable service, telecommunications device, telecommunications service, or information service or other person authorized to givé consent.
Defendant ' Estridge argues that R.C. 2307.60 does not provide Plaintiff Sollen-
Here, Plaintiff Sollenberger has only alleged a violation of R.C. 2913.04 — a statute that could give rise to criminal liability — without identifying a corresponding civil cause of action. As a matter of law, this is insufficient to state a claim under Section 2307.60; therefore, the Court DISMISSES Plaintiff Sollenberger’s civil claim pursuant to R.C, 2307.60 against all defendants, without prejudice.
c. Tortious Interference with an Employment Relationship (Third Claim)
Here, Plaintiff Sollenberger labels his third cause of action as “[t]ortious [i]interference[.]” (Doc. 2-1.) “[T]ortious interference with a business relationship requires proof of the following four elements: ‘(1) a business relationship; (2) the wrongdoer’s knowledge thereof; (3) an intentional interference causing a breach or termination of the relationship; and (4) damages resulting therefrom.’” Peters v. Monroe Twp. Bd. of Trs., No. 2:11-CV-00083,
Tortious interference with, an employment relationship occurs “when a person, without a privilege to- do so, induces or otherwise purposely causes a third person not to enter into or continue a business relation with another, or not to perform a contract with another.” Hadi v. State Farm Ins. Cos., No. 2:07-CV-0060,
Additionally, the right of noninterferеnce is limited because there are those whose position entitles them to intrude upon the employment relationship, such as the employee-employer relationship. Peters,
Moreover, Defendant Estridge plead qualified privilege as an affirmative defense. (Doc. 8, at 6.) “The Ohio Supreme Court has held that a privilege exists to publications when it is “fairly made by a person in the dischargé of some public or private duty, whether legal or moral. ...” Hahn v. Kotten,
Thus, “where circumstances exist, or are reasonably believed by the defendant to exist, which casts on him the duty of making a communication to assert' another person to whom he makes such communication in the performance of such duty, or whether the person is so situated that it becomes right in the interests of society that he should tell third persons certain facts, which he in good faith proceeds to do,... ” the communication is qualifiedly privileged.
Brothers v. Cnty. of Summit, No. 5:03-CV-1002,
Plaintiff Sollenberger alleges that he is undergoing a divorce with. Defendant Sollenberger, who took one of his old phones without his knowledge or consent,
In Count III, the Complaint states, Defendants Sollenberger and Estridge “acted with the intent to interfere with [Plaintiff Sollenberger’s] employment[,]” and that Defendant Sollenberger’s “motivation was to gain an advantage in the divorce proceeding and [Defendant Estridge] was assisting [Defendant Sollenberger] in this unlawful endeavor.” (Doc. 2-1, at Pa-gelD# 92.) ' Excluding these conclusory statements regarding Defendants Sollen-berger and Estridge’s purported state of mind, the underlying acts Plaintiff Sollen-berger alleges, i.e., extracting information from one of Plaintiff Sollenberger’s old cell phones and sending it to the NAACP, and then, providing that information to the iSontgomery County Sheriffs Office аt a later date, do in and of themselves create a possible inference of malicious or wanton behavior.
However, Defendants Sollenberger and Estridge’s actions were in good faith, for the benefit of the public, in light of the content of the text messages and Plaintiff Sollenberger’s role as a Detective with the Sheriffs Office. See Connick v. Myers,
Rather than malicious or wanton behavior, the reporting of the text messages to the NAACP and later cooperation with the Sheriffs Office were the result of efforts to convey information of police misconduct for the betterment of the community, which is a matter of public concern. Cf. Williams v. Commonwealth of Kentucky,
Accordingly, the Court DISMISSES Plaintiff Sollenberger’s tortious interference with an employment relationship
d. Civil Conspiracy (Sixth Claim)
In Ohio, to state a claim for civil conspiracy, there must be “a malicious combination of two or more persons to injure another in person or property, in a way not competent for one alone, resulting in actual damages.” Milner v. Biggs,
Accordingly, the Court DISMISSES Plaintiff Sollenberger’s civil conspiracy claim against all Defendants, without prejudice. '
D. CONCLUSION
For the reasons set forth above, the Court GRANTS Defendant Plummer and Sheriff Defendants’ Motion to Dismiss (Doc. 13), the Court GRANTS Defendant Sollenberger’s Motion to Dismiss (Doc. 2-1, at PagelD# 126-27), and the Court GRANTS Defendant Estridge’s Motion to Dismiss (Doc. 17). The captioned case is hereby TERMINATED upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
Notes
. Dannelle is listed in Plaintiff’s Complaint as “Danielle” and "Dannielle” Estridge.
. Defendants Parin, Cavender, and Hutson are referred to, collectively, as "Sheriff Defendants,”
. The Court may consider the information contained in Defendant Sollenberger’s interview, as it was referred to in paragraph 21 of ' the Plaintiffs Complaint, central to his claims, and a matter of public record. See infra Part II.
.The Court may consider the information contained .in Defendant Estridge’s Answer in ruling on a Motion for Judgment on the Pleadings. See infra Part II.
. The quoted content of the text messages is . not contained within Michael’s Complaint: nevertheless, the Court may consider the text messages, as they were referred to in paragraphs 19-20'of the Complaint and are central to his claim. See infra Part II.
. Defendant Plummer and Sheriff Defendants’ Motion to Dismiss addresses claims one, two, four, five, and six..
. Defendant Estridge’s .Motion to Dismiss addresses claims one, two, three, and six.
. The Fourth Amendment's prohibition against unreasonable searches and seizures is enforceable against the States through the Fourteenth Amendment. Ker v. California,
. The Court must only analyze this claim under the Fourth and Fourteenth Amendments because the Ohio Constitution does not afford plaintiff any greater protections. Logsdon v. Hains,
. The Court may consider the document because the interview is a part of public record, was referred to in Plaintiff Sollenberger's Complaint (Doc. 2-1, at PagelD# 90), and is central to Jus claims. See Bassett v. NCAA,