concurring in part and dissenting in part.
{¶ 49} I respectfully dissent from the majority’s decision with respect to the dismissal of plantiffs’ claims for violations of Section 1983, Title, 42, U.S.Code, and for intentional infliction of emotional distress. It cannot be said, based on the fasts alleged in the complaint, that the defendants are entitled to immunity or that the plaintiffs cannot prove their claims for violation of their federal rights and/or intentional infliction of emotional distress.
{¶ 50} In the first assignment of error, this court must consider whether the trial court erred in granting the appellees’ Civ.R. 12(B)(6) motion to dismiss based on the affirmative defense of absolute immunity to the conduct of individual defendants, Cordray, Tobocman, Wilkerson, Choi, and Martin.
{¶ 51} “In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ. R. 12(B)(6)), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, at the syllabus. In making this determination, the trial court “must presume that all factual allegations of the complaint are true and make all reasonable inferences in favor of the non-moving party.” Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753. Immunity is an affirmative defense. Turner v. Cent. Local School Dist. (1999), 85 Ohio St.3d 95, 97, 706 N.E.2d 1261. Because, in ruling on a Civ.R. 12(B)(6) motion to dismiss, the trial court is limited to the allegations made in the complaint, “unless the complaint on its face demonstrates the existence of a defense that conclusively bars the plaintiffs claim, a Civ.R. 12(B)(6) motion based on an affirmative defense cannot result in the dismissal of a complaint.” Huffman v. Willoughby, 11th Dist. No. 2007-L-040, 2007-Ohio-7120, 2007 WL 4564384, at ¶ 23.
*369{¶ 52} In the present case, the individual defendants are alleged to have demanded the payment of money to the Fair Housing Center, beyond and inconsistent with the scope of their authority as state agents, to allow appellants to avoid prosecution under Ohio’s housing-discrimination statutes, and to have threatened further prosecution in the event their demand is not met.
{¶ 53} The trial court found that defendants Cordray and Tobocman were entitled to absolute immunity, based on their statutorily defined role of “representing] the [civil rights] commission at any hearing” and “presenting] the evidence in support of the complaint.” R.C. 4112.05(B)(6). The court found that defendants Wilkerson, Choi, and Martin were entitled to absolute immunity because they are authorized to perform “certain functions analogous to those of a prosecutor.” The court erred by overlooking the fact that while the defendants enjoy absolute immunity when acting in a certain capacity, the complaint does not seek to impose liability for actions taken in that capacity. In other words, the fact that the defendants possess a defense that would conclusively bar the plaintiffs’ claim does not demonstrate that they can prove no set of facts entitling them to recovery. As the plaintiffs rightly acknowledged in their appellate brief, “[i]f, after discovery, the facts establish that indeed these defendants only acted within the limited role protected by prosecutorial immunity, defendants-appellees will have the opportunity to present such evidence in support of a motion for summary judgment.” Cf. State ex rel. Fatur v. Eastlake, 11th Dist. No. 2009-L-037, 2010-Ohio-1448, 2010 WL 1254369, at ¶ 29 (denial of appellant’s motion to dismiss was proper where “[a] review of appellee’s complaint reveals claims that would fall outside of the immunity provided [by statute]”).
{¶ 54} Accordingly, I dissent from the majority’s conclusion that the plaintiffs can prove no set of facts demonstrating that Cordray and Tobocman were acting outside the scope of their prosecutorial immunity.
{¶ 55} The majority correctly finds that the allegations in the complaint are insufficient to conclude that, as a matter of law, the administrative officers in question, Wilkerson, Choi, and Martin, were functioning in this case in a manner akin to prosecutor. ¶ 20. However, the majority proceeds to dismiss the claims against these defendants on the grounds that the plaintiffs have not alleged sufficient facts to state a claim under the causes of action pleaded in their complaint.
{¶ 56} With respect to the plaintiffs’ claim of alleged violations of Section 1983, Title 42, U.S.Code, the majority interprets the claim to be one for malicious prosecution. This interpretation of the plaintiffs’ claim is unnecessary and disregards the actual substance of the plaintiffs’ allegations. The plaintiffs’ third claim for relief states:
*370{¶ 57} “63. The individually named Defendants in their individual capacities, acting individually, collectively and/or in furtherance of a conspiracy, all while under color of state law, deprived Plaintiffs of rights secured by the United States Constitution and other Federal laws in violation of 42 USC § 1983.
{¶ 58} “64. Defendant’s [sic] violations of 42 USC § 1983 were committed with actual and/or implied malice in conscious disregard of Plaintiffs’ rights.”
{¶ 59} “A complaint alleging Section 1983 as the basis for the action must meet two requirements. First, there must be an allegation that the conduct in question was performed by a person under color of law. Second, the conduct must have deprived appellee of a federal right.” Cooperman v. Univ. Surgical Assocs., Inc. (1987), 32 Ohio St.3d 191, 199, 513 N.E.2d 288, citing Gomez v. Toledo (1980), 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (“By the plain terms of § 1983, two — and only two — allegations are required in order to state a cause of action under that statute”).
{¶ 60} The plaintiffs’ complaint with respect to Section 1983 satisfies these two basic requirements under Ohio’s standards for notice pleading. Civ.R. 8(A) (“A pleading * * * shall contain * * * a short and plain statement of the claim showing that the party is entitled to relief’). It cannot be said, “beyond doubt,” that the plaintiffs can prove no set of facts entitling them relief based on the face of the complaint, and the construal of plaintiffs’ Section 1983 claim as one for malicious prosecution is without justification.
{¶ 61} Likewise, I dissent from the majority’s casual dismissal of plaintiffs’ claim for intentional infliction of emotion distress as “derivative” of the Section 1983/malicious prosecution claim. A cause of action for intentional infliction of emotional distress is distinct from a cause of action for a violation of Section 1983. There is nothing on the face of the plaintiffs’ complaint to demonstrate, “beyond doubt,” that they cannot prove a set of facts entitling them to relief for infliction of emotional distress.
{¶ 62} With respect to the plaintiffs’ claim of alleged violations of Section 1985, Title 42, U.S.Code, I agree that they have failed to state a cause of action. “[I]n order to prove a private conspiracy in violation of the first clause of § 1985(3), a plaintiff must show, inter alia, * * * that ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’ action.’ ” Bray v. Alexandria Women’s Health Clinic (1993), 506 U.S. 263, 267-268, 113 S.Ct. 753, 122 L.Ed.2d 34, quoting Griffin v. Breckenridge (1971), 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338. The plaintiffs made no allegation that the alleged conspiracy was motivated by a racial or class-based animus.
*371{¶ 63} Accordingly, I dissent from the majority’s decision to affirm the dismissal of plaintiffs’ claims for violations of Section 1983 and for intentional infliction of emotional distress as to all defendants.