Donnita Carmichael v. City of Cleveland

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0491n.06

No. 12-3657
FILED
Jul 07, 2014
UNITED STATES COURT OF APPEALS
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT

DONNITA CARMICHAEL, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
) NORTHERN DISTRICT OF OHIO
CITY OF CLEVELAND, ET AL., )
)
Defendants-Appellees. )

Before: BOGGS and MOORE, Circuit Judges; and BARRETT, District Judge. *

BARRETT, District Judge. This case arises out of the murder of Tonia Carmichael by

Anthony Sowell. Tonia Carmichael was one of eleven African-American women found dead in

Sowell’s home in Cleveland, Ohio. Plaintiff, as an individual and administratrix of Carmichael’s

estate, brings federal claims under 42 U.S.C. §§1981 and 1983, as well as state-law claims of

negligence and wrongful death. The district court granted Defendants’ Rule 12 motions to

dismiss and for judgment on the pleadings, and dismissed all claims. We AFFIRM the

dismissal of the claims.

*
The Honorable Michael R. Barrett, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 12-3657, Carmichael v. City of Cleveland, et. al.

I

A

The factual history which follows is based solely on the allegations in the complaint. On

November 10, 2008, Tonia Carmichael disappeared. Tonia was a resident of the City of

Warrensville Heights. After 48 hours, Tonia’s family attempted to file a missing-persons report

with the Warrensville Heights Police. An officer refused to take the report, and told the family

that Tonia would show up “after she finishes smoking crack.”

Because Tonia was last seen in Cleveland, Tonia’s family attempted to file a missing-

persons report with the Fourth District of the Cleveland Police Department. Officer Martinez

refused to take the report because Tonia was not a resident of Cleveland.

The family began its own search for Tonia, and found her dark-blue Chevy S-10 pickup

truck in Cleveland. The family returned to the Cleveland Police Department, but Officer

Martinez still refused to take a missing-persons report.

After Tonia had been missing for three weeks, the Warrensville Heights Police took a

missing-persons report.

Anthony Sowell lived at 12205 Imperial Street in Cleveland, which is just a few blocks

from where Tonia’s family discovered her pickup truck. In 1990, Sowell pleaded guilty to two

counts of attempted rape. While Sowell requested that he be treated for his violent sexual

behavior as part of his sentence, the Ohio Department of Rehabilitation and Corrections

(“ODRC”) failed to provide him with treatment. Sowell was released from prison in 2005.

Sowell never registered as a sex offender, and was not monitored by the Cuyahoga County

Sheriff’s Department.

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

On December 8, 2008, the Cleveland police arrested Sowell after a bleeding woman ran

up to a police car and told the officers that Sowell tried to punch her, choke her and rip off her

clothes. The incident was assigned to Cleveland’s Sex Crime Unit and investigated by Detective

Georgia Hussein, Detective Kristin Rayburn, Lieutenant Michael Baumiller and Sergeant

Antoinette McMahon (“the Cleveland Police Defendants”). The officers spoke to witnesses on

Imperial Avenue and met with the victim, who gave a written statement and signed medical

releases to allow the officers to get the records of her injuries. The officers took photographs of

Sowell, which show scrapes and abrasions on his left shoulder and both legs. The officers also

obtained a written statement from Sowell.

On December 10, 2008, the officers met with Cleveland Assistant Prosecutor Lorraine

Coyne. The officers told Coyne that the victim had no visible signs of injuries. The officers

failed to tell Coyne about Sowell’s criminal history or sex-offender status. Coyne decided to

release Sowell. According to Plaintiff, Cleveland employs a “straight release and indict later”

policy because all criminal suspects must usually be charged within 24 to 48 hours, but resources

are scarce. Plaintiff explains that the theory behind the policy is that if more information is

obtained later, the case will be presented to the grand jury for a formal indictment.

Almost a year later, on October 20, 2009, a naked woman fell from a window of Sowell’s

home on Imperial Avenue. After obtaining a warrant, the police searched Sowell’s house on

October 28, 2009. The officers eventually found eleven bodies of African-American women.

The bodies were hidden in crawl spaces, buried under dirt floors and buried in the back yard.

Neighbors had complained about the smell of rotting flesh since 2006. A sausage company

located next door to Sowell’s house reported to authorities that Sowell was regularly placing

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

filled plastic bags wrapped with duct tape in their dumpster. Tonia’s body was discovered on

November 5, 2009.

In her complaint, Plaintiff sets forth six claims, albeit in a somewhat confusing manner.

The third and sixth claims are not at issue on appeal.1 The first and second claims are brought

pursuant to 42 U.S.C. §§ 1981 and 1983 and name only the City of Warrensville Heights and the

City of Cleveland. Plaintiff claims racial and national-origin discrimination based on the

deliberate refusal to take a missing person report and promptly investigate Tonia’s

disappearance; and not promptly “investigating claims of missing African-Americans, while

making a prompt investigations [sic] for white or Asian individuals, despite having official

policies and procedures to investigate unusual or unaccountable absences.”

The fourth claim is for “Negligence/Wrongful Death” and is brought against “defendants

enumerated one (1) through sixteen (16) in the caption.” The defendants include the City of

Cleveland;2 the City of Warrensville Heights; the Cuyahoga County Board of Commissioners;

Gerald T. McFaul, the Cuyahoga County Sheriff;3 the Cuyahoga County Sheriff’s Department;

1
The third claim is a claim for wrongful death under Ohio law against Segernia and
Anthony Sowell. Because these defendants did not respond to the complaint, the district court
dismissed these claims without prejudice. Plaintiff has not appealed their dismissal. In the sixth
claim, Plaintiff seeks injunctive relief in the form of counseling and other assistance for Tonia’s
survivors.
2
In her complaint, Plaintiff also named the City of Cleveland Health Department and
Martin Flask, who is Cleveland’s Public Safety Director. However, Plaintiff has not appealed
the dismissal of these claims.
3
Plaintiff named McFaul in her complaint, but never served McFaul with the complaint.
According to a docket entry by the district court, Plaintiff voluntarily dismissed McFaul during a
status conference. In its order granting Defendants’ Rule 12 motions, the district court dismissed
the claims against McFaul pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff included
4
No. 12-3657, Carmichael v. City of Cleveland, et. al.

ODRC;4 Martin Flask, Cleveland’s Public Safety Director; the City of Cleveland Health

Department; Segernia Sowell; Anthony Sowell; Detective McGlibra, Lieutenant Jelenick,

Stephanie Prince and Sergeant Martinez (“the Warrensville Heights Police Defendants”);

Georgia Hussein and Kristin Rayburn, who are two of the four Cleveland Police Defendants.

Excluded from the fourth claim are Lieutenant Michael Baumiller and Antoinette McMahon,

who are the two remaining Cleveland Police Defendants, and Lorraine Coyne,5 who is an

assistant prosecutor for the City of Cleveland.

Plaintiff’s claim against these Defendants is based upon the failure “to prevent the actions

of defendant Anthony Sowell, by allowing Anthony Sowell to be released from confinement

without rehabilitative treatment” and “by being generally negligent.” Plaintiff also claims that

the Sheriff failed to provide notice to neighbors of a Tier III sex offender’s residence as required

by Ohio Revised Code § 2950.11, as amended by the Adam Walsh Act.

The fifth claim is for “Negligence/Wrongful Death” and is brought against all

Defendants, although the allegations only involve three of the defendants. Plaintiff alleges that

the City of Cleveland has a policy and practice that encourages the straight release of dangerous

suspects. Plaintiff alleges that Cuyahoga County has a policy and procedure of “not checking on

McFaul on her Civil Appeal Statement, but has not specifically addressed his dismissal and has
not made any arguments about the claims against him.
4
Reginald Wilkinson, ODRC Director and Managing Officer, was not included in the
caption of the complaint, but was named in the body of the complaint. In its order granting
Defendants’ Rule 12 motions, the district court noted that Wilkinson was not served with the
complaint and therefore dismissed the claims against him pursuant to Federal Rule of Civil
Procedure 4(m). Plaintiff did not include Wilkinson on her Civil Appeal Statement and has not
addressed his dismissal on appeal.
5
Coyne is incorrectly identified as Loretta in the complaint.
5
No. 12-3657, Carmichael v. City of Cleveland, et. al.

sex offenders and their activities.” Finally, Plaintiff brings the claim against Cuyahoga County

and the Sheriff for their “reckless, willful and wanton” failure to enforce “sexually oriented

offender and related statutes”; for failing to create and enforce adequate policies for enforcing

Ohio Revised Code § 2950.11, as amended by the Adam Walsh Act; and for failing to ensure

that Sowell registered with the Sheriff’s Department.

B

On May 1, 2012, the district court granted seven motions filed by Defendants. The

Cleveland Police Defendants, Coyne, the Cuyahoga County Board of Commissioners, and the

Cuyahoga County Sheriff’s Department filed motions to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6). The City of Warrensville Heights and the Warrensville Heights Police

Defendants filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil

Procedure 12(c). ODRC filed a motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(1) based on a lack of subject-matter jurisdiction.

II

We review de novo the district court’s granting of a motion to dismiss under Federal Rule

of Civil Procedure 12(b)(6) for failure to state a claim. Top Flight Entm't, Ltd. v. Schuette,

729 F.3d 623, 630 (6th Cir. 2013) (citing Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625,

629 (6th Cir. 2009). The same de novo standard of review applies to our review of the district

court’s granting of a motion for judgment on the pleadings under Federal Rule 12(c). Marais v.

Chase Home Fin. LLC, 736 F.3d 711, 713 (6th Cir. 2013) (per curiam) (citing Poplar Creek Dev.

Co. v. Chesapeake, 636 F.3d 235, 240 (6th Cir. 2011)). Likewise, we review de novo a district

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

court's dismissal of a complaint under Federal Rule 12(b)(1). McCormick v. Miami Univ.,

693 F.3d 654, 658 (6th Cir. 2012).

To properly state a claim, a complaint must contain a “short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To 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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

This court has applied these now-familiar pleading requirements outlined in Twombly and

Iqbal to motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c).

HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). Similarly, where a challenge

to subject-matter jurisdiction under Federal Rule 12(b)(1) is a “facial attack,” as it is in this case,

this court must take all of the allegations in the complaint as true. Amburgey v. United States,

733 F.3d 633, 636 (6th Cir. 2013).6

6
Because we must accept all the allegations in the complaint as true, we reject the
argument made on appeal by the City of Warrensville Heights and the City of Cleveland that this
appeal should be rejected because Plaintiff’s citations to the district court record are insufficient
and Plaintiff has introduced new facts in her appellate brief by referring to events which occurred
after the district court dismissed her claims. While Plaintiff’s Corrected Brief does not provide
extensive references to the record, Plaintiff cites to the district court’s opinion, cites Defendants’
motions and makes it clear that her statement of facts is based on the allegations in the
complaint. Because our review is limited to the allegations in the complaint, any references
beyond these documents are unnecessary and any “new” facts have no bearing on this Court’s
decision.
7
No. 12-3657, Carmichael v. City of Cleveland, et. al.

III

A

On appeal, one of Plaintiff’s main arguments is that the district court engaged in “judicial

plagiarism.” Plaintiff points out that, in their motion, the City of Warrensville Heights and the

Warrensville Heights Police Defendants argued:

In this case, the Complaint is devoid of any claims that the Warrensville Heights
defendants discriminated against the Plaintiff’s decedent based upon her race.
Instead, the factual allegations included in the complaint indicate that, if
anything, the Plaintiff’s decedent was discriminated against based upon her
status as a known drug user in the community. See Complaint ¶14. This is
insufficient to maintain a claim under 42 U.S.C. §1981, which requires an
allegation of racial animus. Consequently, Plaintiff’s 42 U.S.C. §1981 claim fails
as a matter of law and should be dismissed with prejudice.

R. 55, p. 8 (emphasis added).

In its opinion, the district court wrote:

The Complaint here lacks any facts related to the alleged race discrimination.
Instead, the factual allegations indicate that, if anything, Tonia Carmichael
was discriminated against based upon her status as a known drug user. This
is insufficient to maintain a claim under 42 U.S.C. § 1981, which requires an
allegation of racial animus. Consequently, Plaintiff’s 42 U.S.C. § 1983 claim fails
as a matter of law.

R. 85, p. 21 (emphasis added). Plaintiff argues that there is no indication in the record that the

district court “even read Plaintiff’s Complaint.” Appellant’s Br. 16.

In addressing this issue, Plaintiff and Defendants both cite caselaw that stands for the

proposition that a judge should exercise independent judgment. While true, most of this

discussion is unnecessary and inapplicable in this case. The district court made a careful review

of the complaint as evidenced by the opinion. The district court listed the defendants separately,

and then explained who they were and the allegations against each one of them in detail. When

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

analyzing Plaintiff’s claims, the district court filled in many of the blanks left by Plaintiff’s

complaint. For example, even though Plaintiff did not state which constitutional rights formed

the basis of her Section 1983 claims, the district court explained that it appeared that Plaintiff

was basing her claims on Tonia’s rights to substantive due process and equal protection.

While there is clearly some overlap between the argument in Defendants’ motion and the

district court’s opinion, similarity in a single paragraph of a thirty-four page opinion does not

demonstrate that the district court failed to exercise independent judgment in considering

Plaintiff’s claims.

B

Plaintiff also argues that the district court misconstrued her federal claims. On appeal,

Plaintiff argues that her federal claims are only brought against the City of Warrensville Heights

and the City of Cleveland. Plaintiff does not address the dismissal of any federal claims brought

against the other defendants. Therefore, Plaintiff has waived any argument that she has brought

federal claims against any defendant other than the City of Warrensville Heights and the City of

Cleveland. Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir. 2013) (“arguments not raised

in a party's opening brief, as well as arguments adverted to in only a perfunctory manner, are

waived”) (citing Caudill v. Hollan, 431 F.3d 900, 915 n.13 (6th Cir. 2005)).

At times, Plaintiff appears to collapse her federal claims into one. However, Plaintiff’s

claim under Section 1981 is distinct from her due-process and equal-protection claims under

Section 1983.

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

1. Section 1981

“Section 1981 prohibits racial discrimination in the making and enforcement of

contracts.” McCormick v. Miami Univ., 693 F.3d 654, 659 (6th Cir. 2012) (citing Runyon v.

McCrary, 427 U.S. 160 (1976)). Plaintiff fails to address the district court’s conclusion that

§1981, as amended by the Civil Rights Act of 1991, does not provide a private cause of action

against governmental entities or state actors in their official or individual capacities. Accord

Arendale v. City of Memphis, 519 F.3d 587, 598-99 (6th Cir. 2008) (“the express cause of action

for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights

guaranteed in § 1981 by state governmental units.”); McCormick, 693 F.3d at 662. This alone

would be enough to dismiss Plaintiff’s §1981 claim, but as the district court explained, Plaintiff

has not properly pleaded a claim against the City of Warrensville Heights and the City of

Cleveland.

To state a claim under §1981, a plaintiff must show that “(1) he [or she] belongs to an

identifiable class of persons who are subject to discrimination based on their race; (2) Defendants

intended to discriminate against him [or her] on the basis of race; and (3) Defendants'

discriminatory conduct abridged a right enumerated in section 1981(a).” Amini v. Oberlin

College, 440 F.3d 350, 358 (6th Cir. 2006). However, Plaintiff has not alleged facts indicating

discrimination based on race. Instead, Plaintiff alleges in her complaint that the City of

Warrensville Heights refused to take a missing-persons report because Tonia “would show up

after her drugs were gone” or “will show up after she finishes smoking crack.” Plaintiff alleges

that the City of Cleveland refused to take a missing-persons report because Tonia was not a

resident of Cleveland. Neither of these allegations shows an intent to discriminate on the basis

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

of race. Similarly, Plaintiff alleges that Cleveland improperly investigated Sowell’s 2008 case

and released him. However, there are no allegations that the improper investigation or Sowell’s

release were based on race.

Therefore, the district court properly dismissed Plaintiff’s §1981 claim against the City of

Warrensville Heights and the City of Cleveland.

2. Section 1983

Section 1983 provides a cause of action for “the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws” by any person acting “under color of any

statute, ordinance, regulation, custom, or usage, of any State or Territory.” 42 U.S.C. § 1983.

The district court analyzed Plaintiff’s §1983 claim as being based on violations of Tonia’s

substantive-due-process and equal-protection rights under the Fourteenth Amendment.

As the district court explained, the Due Process Clause “is phrased as a limitation on the

State's power to act, not as a guarantee of certain minimal levels of safety and security.”

DeShaney v. Winnebago Cnty. Dep't of Social Servs., 489 U.S. 189, 195 (1989). Therefore, the

City of Warrensville Heights and the City of Cleveland did not have a duty to prevent Sowell, a

private actor, from murdering Tonia. The district court explained that none of the limited

exceptions to this general rule applied. There were no allegations to support a “special

relationship” between Warrensville Heights or Cleveland and Tonia; and Warrensville Heights

and Cleveland did not create a “special danger” which placed Tonia specifically at risk, as

opposed to the public at large. On appeal, Plaintiff states that she never maintained that

Warrensville Heights and Cleveland had a general duty to protect individuals from private acts of

violence, and appears to concede that she has not stated a due-process claim.

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

Instead, Plaintiff clarifies that the basis of her §1983 claim is that Tonia “was selectively

denied the protective services of two Defendant Cities on the basis that she was an African-

American, and thus Defendants violated the Equal Protection Clause.” Appellant’s Br. 18.

“The Equal Protection Clause prohibits discrimination by government which either

burdens a fundamental right, targets a suspect class, or intentionally treats one differently than

others similarly situated without any rational basis for the difference.” TriHealth, Inc. v. Bd. of

Comm'rs, 430 F.3d 783, 788 (6th Cir. 2005). The district court concluded that the complaint did

not establish that Warrensville Heights or Cleveland treated Tonia differently because she was an

African American. We agree.

Plaintiff has not properly alleged that she was singled out or treated differently from other

similarly situated missing persons. The complaint states that Warrensville Heights and

Cleveland failed to make prompt investigations of missing African Americans and denied Tonia

protective services “on the basis that she was an African-American.” However, this type of

unsupported, conclusory statement is not entitled to the assumption of truth. See Iqbal, 556 U.S.

662, 679 (“While legal conclusions can provide the framework of a complaint, they must be

supported by factual allegations.”).

Plaintiff appears to put more weight into her argument that the City of Warrensville

Heights and the City of Cleveland have in place a policy and practice of not making prompt

investigations of missing persons when the person is African-American. While such a claim

would be viable under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), merely alleging that

such a policy is in place is not enough. The pleading standard under Federal Rule 8 does not

require “detailed factual allegations,” but it demands “more than an unadorned, the-defendant-

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

At oral argument, counsel for Plaintiff explained that there were other cases of missing

African Americans that were not investigated by Warrensville Heights or Cleveland. However,

counsel admitted that these allegations were not included in the complaint.7 Without any

detailed factual allegations of this nature, Plaintiff cannot maintain her equal-protection claim.

Therefore, the district court properly dismissed Plaintiff’s §1983 claim against the City of

Warrensville Heights and the City of Cleveland.

C

Finally, Plaintiff argues that the district court should not have dismissed her state-law

claims with prejudice. Plaintiff explains that the district court should have declined to exercise

its supplemental jurisdiction and dismissed the claims without prejudice so that Plaintiff could

re-file her claims in state court.8 On appeal, Plaintiff does not make any other arguments

regarding the dismissal of the state-law claims.

1. Supplemental Jurisdiction

We review de novo a district court's determination as to whether it had supplemental

jurisdiction over state-law claims. Blakely v. United States, 276 F.3d 853, 860 (6th Cir. 2002)

(citing Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 759 (6th Cir. 2000)). We review a district

court's decision to exercise supplemental jurisdiction for abuse of discretion. Harper v.

7
The district-court record shows that after Defendants filed their motions, Plaintiff was granted
leave to amend her complaint, but did not do so within the requested deadline. Plaintiff
requested a second extension of time to file an amended complaint, but the district court denied
that request.
8
At times, Plaintiff also argues that the district court should have remanded the claims to state
court. However, Plaintiff’s claims were filed in federal court at the outset.
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No. 12-3657, Carmichael v. City of Cleveland, et. al.

AutoAlliance Int'l, Inc., 392 F.3d 195, 200 (6th Cir. 2004) (citing Landefeld v. Marion Gen.

Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993)). “An abuse of discretion exists only when the

court has the definite and firm conviction that the district court made a clear error of judgment in

its conclusion upon weighing relevant factors.” Gamel v. City of Cincinnati, 625 F.3d 949, 951

(6th Cir. 2010) (quoting Gaeth v. Hartford Life Ins., Co., 538 F.3d 524, 528-29 (6th Cir. 2008)

(citation and alterations omitted)).

A district court has “supplemental jurisdiction over all other claims that are so related to

claims in the action within [the court's] original jurisdiction that they form part of the same case

or controversy.” 28 U.S.C. § 1367(a). However, the district court “may decline to exercise

supplemental jurisdiction” if “the district court has dismissed all claims over which it has

original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Generally, “[w]hen all federal claims are dismissed before trial, the balance of

considerations usually will point to dismissing the state law claims, or remanding them to state

court if the action was removed.” Musson Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1254-

55 (6th Cir. 1996). However, “there is no categorical rule that the pretrial dismissal of a federal

claim bars a court from deciding remaining state law claims.” Instead, the decision regarding the

exercise of supplemental jurisdiction “depends on ‘judicial economy, convenience, fairness, and

comity.’” Id. at 1254 (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)).

Moreover, district courts have “broad discretion in deciding whether to exercise supplemental

jurisdiction over state law claims.” Id.

There is no question that Plaintiff’s state-law tort claims are a part of the same case or

controversy as Plaintiff’s federal claims under 42 U.S.C. §§ 1981 and 1983. “Claims form part

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

of the same case or controversy when they ‘derive from a common nucleus of operative facts.’”

Blakely, 276 F.3d at 861 (6th Cir. 2002) (quoting Ahearn v. Charter Township of Bloomfield, 100

F.3d 451, 454-55 (6th Cir.1996)). Plaintiff’s claims are centered on Defendants’ failure to

prevent and investigate Tonia’s disappearance.

Defendants filed seven dispositive motions addressing both the federal and state-law

claims brought against them. The briefing on some of these motions was stayed for

approximately five months while the state criminal proceedings against Sowell were completed.

R. 36. The district court then held oral argument on the motions. R. 84. In its opinion on the

motions, the district court noted that much of the complaint was “confusing and difficult to

parse.” However, the district court carefully sorted through Plaintiff’s six claims and determined

which claims were being brought against which of the twenty-one defendants. In the interest of

judicial economy, the district court properly ruled on both the federal and state-law claims. The

re-filing of Plaintiff’s complaint in state court would have in all likelihood meant the re-filing of

Defendants’ motions, which would then require a state court to repeat much of the same process.

Therefore, the district court did not abuse its discretion in exercising supplemental jurisdiction

over Plaintiff’s state-law claims.9

9
However, as discussed below, because the district court dismissed the claims against
ODRC for lack of subject-matter jurisdiction, dismissal of the claims against ODRC should have
been without prejudice.

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

2. State law claims

While Plaintiff has not challenged the dismissal of her state law claims beyond the

district court’s exercise of supplemental jurisdiction, we nevertheless find that Defendants’

motions were well-taken.

The district court explained that the Cuyahoga County Sheriff’s Department is not sui

juris, and therefore the claims against it should be dismissed. Plaintiff did not argue to the

contrary before the district court, and even though Plaintiff has named the Sheriff’s Department

on appeal, she has not challenged the district court’s finding.10 However, as the district court

correctly noted, federal courts have held that, under Ohio law, a county sheriff's office is not a

legal entity that is capable of being sued. Barrett v. Wallace, 107 F. Supp. 2d 949, 954-55 (S.D.

Ohio 2000) (citing Batchik v. Summit County Sheriff's Dept., No. 13783, 1989 WL 26084, at *1

(Ohio Ct. App. Mar. 15, 1989)); Petty v. Cnty. of Franklin, Ohio, 478 F.3d 341, 347 (6th Cir.

2007) (“under Ohio law, a county sheriff's office is not a legal entity capable of being sued for

purposes of § 1983.”); see also Yahnke v. Nixon, 1:10 CV 1470, 2010 WL 3420650, *1 (N.D.

Ohio Aug. 27, 2010) (collecting federal cases). Therefore, dismissal of the claims against the

Cuyahoga County Sheriff’s Department was proper.

The district court dismissed the claims against ODRC for lack of subject-matter

jurisdiction based on immunity under the Eleventh Amendment, which provides that “[t]he

10
The district court did not reach the merits of Plaintiff’s claim that the Cuyahoga County
Sheriff’s Department failed to register Sowell as a sex offender. However, according to
Plaintiff’s complaint, Sowell plead guilty to two counts of attempted rape in 1990. In Ohio, the
requirements of the Adam Walsh Act do not apply to offenses occurring before the enactment of
the Act in 2007. State v. Palmer, 964 N.E.2d 406, 410 (Ohio 2012) (citing State v. Williams,
952 N.E.2d 1108 (Ohio 2011)).

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Judicial power of the United States shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of another State, or by

Citizens or Subjects of any foreign state.” U.S. Const. amend. XI. We have previously held that

Ohio has not waived its Eleventh Amendment immunity from state-law claims for money

damages against ODRC. Turker v. Ohio Dept. of Rehab. and Corr., 157 F.3d 453, 456-57 (6th

Cir. 1998). Therefore, the district court properly dismissed Plaintiff’s claims against ODRC.

However, this dismissal should not have been with prejudice. Dismissals for lack of jurisdiction

based on Eleventh Amendment immunity should be made without prejudice. Ernst v. Rising,

427 F.3d 351, 367 (6th Cir. 2005). The judgment in this case should be amended accordingly.

The district court dismissed the state-law claims against the Cuyahoga Board of

Commissioners, the City of Warrensville Heights, the Warrensville Heights Police Defendants,

the City of Cleveland, and the Cleveland Police Defendants based on Ohio Revised Code

§§ 2744.02 and 2744.03, which establish immunity for political subdivisions and their

employees.

In Ohio, a three-tier analysis is used to determine whether a political subdivision is

immune from liability. Elston v. Howland Local Sch., 865 N.E.2d 845, 848 (Ohio 2007). The

first tier is a general grant of immunity from liability “for injury, death, or loss to persons or

property allegedly caused by an act or omission of the political subdivision or an employee of the

political subdivision in connection with governmental or proprietary function.” Ohio Revised

Code § 2744.02(A)(1). The second tier is a determination as to whether one of the exceptions set

forth in Ohio Revised Code § 2744.02(B) applies: (1) the negligent operation of a motor vehicle

by an employee; (2) the negligent performance of proprietary functions; (3) the negligent failure

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

to keep public roads in repair and remove obstructions; (4) the negligence of employees

occurring within or on the grounds of, and due to physical defects within or on the grounds of,

buildings used in connection with the performance of governmental functions; or (5) where civil

liability is expressly imposed by statute. However, in the third tier, immunity may be reinstated

if a political subdivision can successfully assert one of the defenses listed in Ohio Revised Code

§ 2744.03.

In addition, Ohio Revised Code § 2744.03(A)(6) provides immunity to employees of

political subdivisions unless one of the following applies: “(a) The employee's acts or omissions

were manifestly outside the scope of the employee's employment or official responsibilities;

(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or

reckless manner; (c) Civil liability is expressly imposed upon the employee by a section of the

Revised Code . . . .”

Under the first tier of the analysis, the allegations against the Cuyahoga Board of

Commissioners, the City of Warrensville Heights, the Warrensville Heights Police Defendants,

the City of Cleveland, and the Cleveland Police Defendants all concern acts or omissions in

connection with a governmental function. Under the statute, a “governmental function” includes

“[t]he provision or nonprovision of police, fire, emergency medical, ambulance and rescue

services or protection” and “[t]he enforcement or nonperformance of any law.” Ohio Rev. Code

§ 2744.01(C)(2)(a) and (i). Plaintiff’s state-law claims are based on: (1) a failure “to prevent the

actions of defendant Anthony Sowell, by allowing Anthony Sewell to be released from

confinement without rehabilitative treatment”; (2) the City of Cleveland’s “straight release”

policy; (3) Cuyahoga County’s policy of “not checking on sex offenders and their activities”;

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

(4) Cuyahoga County and the Sheriff’s failure to enforce “sexually oriented offender and related

statutes;” (5) Cuyahoga County and the Sheriff’s failure to create and enforce adequate policies

for enforcing Ohio Revised Code § 2950.11, as amended by the Adam Walsh Act; and

(6) Cuyahoga County and the Sheriff’s failure to ensure that Sowell registered with the Sheriff.

These allegations fall within the definition of a “governmental function” under the first tier of the

analysis. Because under the second tier of the analysis none of the exceptions listed in Ohio

Revised Code § 2744.02(B) apply, it is unnecessary to reach the third tier of the analysis. See

Colbert v. Cleveland, 790 N.E.2d 781, 783 (Ohio 2003).

In addition, none of the exceptions under Ohio Revised Code § 2744.03(A)(6) apply so as

to impose liability on the individually named defendants. Plaintiff did not allege that the acts of

the named defendants were outside the scope of their employment and official responsibilities.

While Plaintiff did allege that the County and the Sheriff were “grossly negligent, reckless,

willful and wanton” in the enforcement of “the sexually oriented offender and related statutes,”

there are no factual allegations to accompany this conclusory statement.

Therefore, the state-law claims against the Cuyahoga Board of Commissioners, the City

of Warrensville Heights, the Warrensville Heights Police Defendants, the City of Cleveland, and

the Cleveland Police Defendants were properly dismissed.

The claims against Coyne were based on Coyne’s failure to investigate Sowell’s

2008 case and her decision not to bring charges against him. Part of Plaintiff’s allegations

against Coyne is that the release of Sowell in 2008 was “reckless, wanton and willful.”

However, even if Plaintiff’s allegations against Coyne fall within one of the exceptions under

Ohio Revised Code § 2744.03(A)(6), Ohio Revised Code § 2744.03 provides: “an employee who

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No. 12-3657, Carmichael v. City of Cleveland, et. al.

is a county prosecuting attorney, city director of law, village solicitor, or similar chief legal

officer of a political subdivision, an assistant of any such person, or a judge of a court of this

state is entitled to any defense or immunity available at common law or established by the

Revised Code.” Ohio Rev. Code § 2744.03(A)(7). At common law, prosecuting attorneys

enjoyed absolute immunity when initiating a prosecution and presenting the state's case.

Willitzer v. McCloud, 453 N.E.2d 693, 695 (Ohio 1983) (citing Imbler v. Pachtman, 424 U.S.

409, 430 (1976)). Accordingly, absolute immunity applies to acts such as “the professional

evaluation of the evidence assembled by the police and appropriate preparation for its

presentation at trial or before a grand jury after a decision to seek an indictment has been made.”

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Absolute immunity also applies to the

“decision to investigate or not to investigate and to present the facts discovered in a judicial

proceeding, including presentment to a grand jury.” Grant v. Hollenbach, 870 F.2d 1135, 1139

(6th Cir. 1989). These are the acts upon which Plaintiff has based her claims against Coyne, and

therefore, it was proper for the district court to find that Coyne was entitled to absolute immunity

and dismiss the claims against her.

IV

The district court properly dismissed the § 1981 and § 1983 claims against the City of

Warrensville Heights and the City of Cleveland. The district court also properly dismissed

Plaintiff’s state-law claims with prejudice, with the exception of the state law claims against

ODRC. Because the district court lacked subject-matter jurisdiction, dismissal should have been

without prejudice. Therefore, we AFFIRM the district court’s judgment except to the extent that

the dismissal of the claims against ODRC was with prejudice, which is VACATED.

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