Ralph Jocke v. City of Medina, Ohio

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0368n.06

No. 22-3954

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

RALPH E. JOCKE; PATRICIA A. WALKER; ) FILED
KEITH A. RASEY, ) Aug 11, 2023
) DEBORAH S. HUNT, Clerk
Plaintiffs-Appellants,
)
)
v. ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR
)
CITY OF MEDINA, OHIO, THE NORTHERN DISTRICT OF
)
Defendant-Appellee. OHIO
)
OPINION
)

Before: STRANCH, BUSH, and MURPHY, Circuit Judges.

JOHN K. BUSH, Circuit Judge. Plaintiffs Ralph E. Jocke, Patricia A. Walker, and Keith

A. Rasey are politically active citizens in their Ohio city and county, both of which are named

Medina. Since 2019, they have raised awareness around a joint courthouse project that would

house two courts in Medina County. As part of these efforts, Plaintiffs founded the Save Your

Courthouse Committee and proposed a “Citizens Initiative” for the 2020 ballot (the 2020

Initiative), which passed. But Plaintiffs allege their efforts were met with opposition from the City

of Medina. More specifically, the City, according to Plaintiffs, violated their federal constitutional

rights when it used public resources to oppose the 2020 Initiative. Plaintiffs sued the City under

42 U.S.C. § 1983, alleging nine federal claims based on Monell v. Dep’t of Soc. Servs., 436 U.S.

658 (1978). After cross motions for judgment on the pleadings, the district court ruled for the City

on all claims. Because Plaintiffs fail to allege sufficient well-pleaded facts to sustain their Monell

claims, we AFFIRM.
No. 22-3954, Jocke, et al. v. City of Medina

I.

The events relevant to this appeal begin in 2019, when Plaintiffs started collecting

signatures for a ballot measure and to raise awareness of the joint courthouse project. That project

sought to tear down historical portions of the courthouse and create a space for both city and county

operations. State ex rel. Save Your Courthouse Comm. v. City of Medina, 137 N.E.3d 1118, 1121

(Ohio 2019) (per curiam). In their attempt to preserve the historic building, Plaintiffs failed to

collect enough signatures in 2019 to put an initiative on the ballot, but they redoubled their efforts

and were successful for the 2020 ballot. The 2020 Initiative imposed a requirement that a majority

of qualified electors approve any spending of funds or construction activity at the Medina County

Courthouse. The 2020 Initiative passed despite City opposition.

Notwithstanding Plaintiffs’ ultimate success, they allege that the City violated their

constitutional rights in several ways. For starters, they allege that Plaintiff Ralph Jocke was

forcibly removed from a public sidewalk as he tried to gather signatures for the 2020 Initiative at

a farmer’s market. Though the street was closed for the farmer’s market, the City set up a table

there, where it urged people not to sign the 2020 Initiative. Plaintiffs asked if supporters of the

2020 Initiative could also have a table at the farmer’s market, but their request was denied.

In further efforts to oppose the 2020 Initiative, a political action committee called “Medina

Courthouse Facts, NO on Issue 7” (the PAC) was formed. Using a City department called “Medina

TV,” the City made a meeting room in City Hall available for a press conference hosted by the

PAC. At the time, access to City Hall was limited—non-City entities were not permitted to meet

there. Plaintiffs inquired whether the press conference would be open to the public, and the City

responded that it would not. But Plaintiffs allege that they saw a Facebook post by the PAC stating

the meeting would be public, so Jocke went to City Hall at the purported time of the conference

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and gained entry. At the press conference, he allegedly saw many other individuals present whom

he believed were not public officials. Upon seeing Jocke, the City Mayor informed him that he

could not attend. At the City Mayor’s direction, the City Police Chief then forcibly escorted Jocke

out of City Hall.

Plaintiffs also allege that Medina TV was used to broadcast videos opposing the 2020

Initiative. Plaintiffs asked to have equal airtime to share their own views on the initiative, but that

request was denied. According to an email from a manager at the station, Medina TV is a

government access channel—while it is used for the government to address topics it chooses, it is

not an open access channel for the public.

But that was not all the City did, according to Plaintiffs. The City, in December 2020,

generated its own initiative to allow the joint courthouse project to move forward. Plaintiffs allege

that, in promoting the joint courthouse project, the City intentionally confused Medina voters

concerning the 2020 Initiative by infringing on Plaintiffs’ trademark, through its use of similar

slogans and colors. The purpose was to make Medina voters believe that the City’s initiative for

the joint courthouse project was supported by proponents of the 2020 Initiative.

Much litigation ensued between Plaintiffs and the City. Relevant here is a taxpayer lawsuit

Plaintiffs filed against the City in state court. Among the allegations was that the City violated the

2020 Initiative, and Plaintiffs sought a permanent injunction preventing the City from moving

forward with the joint courthouse project. In response, the City filed an answer and counterclaim

against Plaintiffs. The City argued that, among other things, the 2020 Initiative violated the Ohio

Constitution and the City’s charter, and that it impaired the City’s contracts. The City sought a

declaratory judgment, as well as attorney’s fees and litigation costs.

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While that litigation was pending, Plaintiffs eventually brought this suit in federal court

under § 1983, containing nine claims in total:

• Claim 1: The City violated Jocke’s First Amendment rights of freedom of speech and
assembly and his Fourteenth Amendment right to equal protection when it excluded Jocke
from the press conference about the 2020 Initiative while allowing other members of the
public to remain.

• Claim 2: The City violated Plaintiffs’ First Amendment right to freedom of speech and
Fourteenth Amendment right to equal protection when it prevented Plaintiffs from
gathering signatures to support the 2020 Initiative on public sidewalks or closed roads
made open to members of the public.

• Claim 3: The City violated Plaintiffs’ First Amendment rights to freedom of speech and
Fourteenth Amendment right to equal protection when it refused to grant Plaintiffs access
to Medina TV.

• Claim 4: The City violated Plaintiffs’ First Amendment rights to freedom of speech and
association and Fourteenth Amendment right to equal protection when it brought a
counterclaim against Plaintiffs in the taxpayer lawsuit.

• Claim 5: The City violated Plaintiffs’ Fourteenth Amendment rights to due process and
equal protection when it brought the counterclaim against Plaintiffs to determine the
constitutionality of the 2020 Initiative in Ohio state court.

• Claim 6: The City violated Plaintiffs’ Fourteenth Amendment right to equal protection
when it continued to use City resources for the project in violation of the 2020 Initiative
and took no action to remedy that violation.

• Claim 7: The City violated Plaintiffs’ Fourteenth Amendment right to equal protection
when it failed to comply with the 2020 Initiative by authorizing the City-generated
initiative.

• Claim 8: The City violated Plaintiffs’ Fourteenth Amendment rights to due process and
equal protection when it made deliberate and false representations and abused the legal
process in ongoing state proceedings.

• Claim 9: The City violated Plaintiffs’ Fourteenth Amendment right to due process when
it violated Title 15 of the U.S. Code by infringing Plaintiffs’ trademark and trade dress
through the use of similar slogans and colors in its campaign supporting the City-generated
initiative.

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For relief, Plaintiffs requested an injunction enjoining the City from violating their constitutional

rights, as well as attorney’s fees and costs.

After the City’s answer, both Plaintiffs and the City moved for judgment on the pleadings.

The district court granted the City’s motion and dismissed the entire case with prejudice. The

district court determined that the complaint failed to allege sufficient facts to sustain a Monell

claim. For Claims 2, 5, 6, 7, 8, and 9, the court determined that Plaintiffs did not adequately

connect the alleged violations to a policy, practice, or custom of the City. As to the remaining

claims, the court determined that, even if the alleged conduct was properly attributable to the City,

the complaint did not adequately allege unconstitutional conduct on the part of the City.

In their response to the City’s motion, Plaintiffs also asked for leave to amend their

complaint if the court found that the claims were not adequately pleaded. The district court noted

that their request was not a proper motion to amend the complaint and declined to grant them leave

to amend.

Plaintiffs timely appealed.

II.

We review de novo a district court’s grant of a Rule 12(c) motion for judgment on the

pleadings, and we use the same standard that applies to reviewing a Rule 12(b)(6) motion to

dismiss.1 Moore v. Hiram Twp., 988 F.3d 353, 357 (6th Cir. 2021). “For purposes of a motion for

1
Plaintiffs argue that, rather than granting a motion for judgment on the pleadings, the district
court erroneously granted summary judgment. Rule 12(d) requires a court to convert a motion for
judgment on the pleadings to a motion for summary judgment if “matters outside the pleadings are
presented to and not excluded by the court.” Clark v. Stone, 998 F.3d 287, 296 (6th Cir. 2021)
(quoting Fed. R. Civ. P. 12(d)). But such conversion is not required when a court refers to exhibits
attached to the complaint, public records, and items and other records of the case “so long as they
are referred to in the Complaint and are central to the claims contained therein.” Brent v. Wayne
Cnty. Dep’t of Hum. Servs., 901 F.3d 656, 695 (6th Cir. 2018) (quoting Bassett v. Nat’l Collegiate

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No. 22-3954, Jocke, et al. v. City of Medina

judgment on the pleadings, all well-pleaded material allegations of the pleadings of the opposing

party must be taken as true, and the motion may be granted only if the moving party is nevertheless

clearly entitled to judgment.” Id. (quoting Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549

(6th Cir. 2008)). Thus, “[t]o survive a Rule 12(c) motion, the complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Engler v.

Arnold, 862 F.3d 571, 575 (6th Cir. 2017) (internal quotation marks omitted) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)).

Under this plausibility standard, the claim must be “more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). Pleadings that merely offer “labels and conclusions or a

formulaic recitation of the elements of a cause of action,” “[t]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements,” or “naked assertions devoid of further

factual enhancement” will not suffice. Id. (cleaned up) (quoting Twombly, 500 U.S. at 555, 557).

In this regard, a plaintiff must “plead[] factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id.

III.

A § 1983 claim under a Monell theory of liability requires the plaintiff to allege that the

local government’s official policy or custom was “the moving force behind the constitutional

violation.” City of Canton v. Harris, 489 U.S. 378, 389 (1989) (cleaned up) (quoting Monell, 436

U.S. at 694). The allegation must be such that “the municipality’s promulgation or adoption of

Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008)). The district court was clear that it was not
converting the motion for judgment on the pleadings to a motion for summary judgment, and that
it considered only the pleadings, attachments to the pleadings, and the public records of the Ohio
state court cases. True, when judgment was entered it stated “summary judgment,” but that was a
scrivener’s error.
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No. 22-3954, Jocke, et al. v. City of Medina

the policy can be said to have ‘cause[d]’ one of its employees to violate the plaintiff’s constitutional

rights.” D’Ambrosio v. Marino, 747 F.3d 378, 386 (6th Cir. 2014) (quoting Monell, 436 U.S. at

692). Official policies include “decisions of a government’s lawmakers, the acts of its

policymaking officials, and practices so persistent and widespread as to practically have the force

of law.” Connick v. Thompson, 563 U.S. 51, 61 (2011). So, to properly allege a Monell claim, the

plaintiff must adequately allege: “(1) the existence of an illegal official policy or legislative

enactment; (2) that an official with final decision making authority ratified illegal actions; (3) the

existence of a policy of inadequate training or supervision; or (4) the existence of a custom of

tolerance [of] or acquiescence [to] federal rights violations.” D’Ambrosio, 747 F.3d at 386

(quoting Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)) (alterations in D’Ambrosio).

Under the appropriate circumstances, “municipal liability may be imposed for a single

decision by municipal policy makers.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).

When the plaintiff alleges a Monell claim for a single official’s actions, that decision must be final

and unreviewable to be attributable to the municipality. See Feliciano v. City of Cleveland, 988

F.2d 649, 655 (6th Cir. 1993) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)

(plurality opinion)). Even when the decision-maker is the mayor, the mayor must have final

authority to establish the policy; otherwise, the municipality cannot be deemed liable under

Monell. See Picha v. City of Parma, 28 F.3d 1214, 1994 WL 369135, at *4 (6th Cir. 1994)

(unpublished per curiam). Essentially, “municipal liability under § 1983 attaches where—and only

where—a deliberate choice to follow a course of action is made from among various alternatives

by the official or officials responsible for establishing final policy with respect to the subject matter

in question.” Pembaur, 475 U.S. at 483. But, “[t]here can be no liability under Monell without an

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underlying constitutional violation.” Chambers v. Sanders, 63 F.4th 1092, 1101–02 (6th Cir.

2023) (quoting Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014)).

A. Claim 1

Plaintiffs allege that the City violated Jocke’s First Amendment rights to free speech and

assembly, as well as his Fourteenth Amendment right to equal protection, when Jocke was forcibly

removed from the press conference at City Hall at the direction of the City Mayor. It is unclear in

the complaint whether the City Mayor had final decision-making authority over who could attend

the press conference. Nevertheless, reviewed in the light most favorable to Plaintiffs, the

complaint could be construed as alleging that the City Mayor had final decision-making authority

there. But Claim 1 still fails because Plaintiffs fail to allege adequately a constitutional violation.

The First Amendment provides that “Congress shall make no law . . . abridging the freedom

of speech, . . . or the right of the people peaceably to assemble, and to petition the Government for

a redress of grievances.” U.S. Const. amend. I. Not all government property, however, is open to

all forms of First Amendment activity. We determine the constitutionality of government

restrictions on speech on public property by answering three questions: “(1) whether the speech is

protected under the First Amendment; (2) what type of forum is at issue and, therefore, what

constitutional standard applies; (3) whether the restriction on speech in question satisfies the

constitutional standard for the forum.” Miller v. City of Cincinnati, 622 F.3d 524, 533 (6th Cir.

2010). When the allegations concern limitations on assembly, our precedent often examines them

under the same forum analysis. See United Church of Christ v. Gateway Econ. Dev. Corp. of

Greater Cleveland, 383 F.3d 449, 451–53 (6th Cir. 2004); Grider v. Abramson, 180 F.3d 739,

747–49 (6th Cir. 1999); see also Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37,

45 (1983).

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There are three types of public fora: the traditional public forum, the designated public

forum, and the limited public forum. See Pleasant Grove City v. Summum, 555 U.S. 460, 469–

470 (2009). Depending on the type of forum in question, the government has greater or lesser

ability to regulate speech. See id. In traditional public fora, such as public streets and parks,

government entities “are strictly limited in their ability to regulate private speech.” Id. at 469.

While “[r]easonable time, place, and manner restrictions are allowed, . . . any restriction based on

the content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly

tailored to serve a compelling government interest.” Id. (citations omitted). Designated public

fora are subject to the same standard. Id. at 469-70. Limited public fora, by contrast, exist where

the government has created a forum that is “limited to use by certain groups or dedicated solely to

the discussion of certain subjects.” Id. at 470. There, governments “may impose restrictions on

speech that are reasonable and viewpoint neutral.” Id. Ultimately, the key is to determine

“whether the government intended to open the forum at issue.” Kincaid v. Gibson, 236 F.3d 342,

348–49 (6th Cir. 2001) (en banc) (citing Cornelius v. NAACP Legal Def. and Educ. Fund, Inc.,

473 U.S. 788, 802 (1985)).

Jocke’s removal from the City Hall allegedly took place during a press conference

concerning the 2020 Initiative. On appeal, without much specificity, Plaintiffs argue that the press

conference was a “public meeting,” and that Jocke was excluded because of his viewpoint on the

2020 Initiative.

But Plaintiffs fail to allege adequately a First Amendment violation based on the press

conference proceedings. Plaintiffs’ own complaint contradicts their story of a public meeting.

When Plaintiffs inquired with the City Mayor’s office about the press conference, they were

informed that it was not open to the public. Additionally, Plaintiffs admit in their complaint that

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access to the City Hall, where the press conference was held, was limited due to COVID-19. The

only invitees were local media representatives. Plaintiffs allege Jocke witnessed individuals who

Plaintiffs believe were not public officials, but fail to allege that these individuals were not the

local media representatives. Plaintiffs attempt to rebut this with evidence from a Facebook post

that, under details, lists the press conference as “public.” But Plaintiffs do not logically connect

the Facebook announcement with any government official. Thus, considering the facts as alleged,

the press conference was not a public forum and access to the City Hall was reasonably restricted

due to COVID-19. See Kincaid, 236 F.3d at 348–49; Bouye v. Bruce, 61 F.4th 485, 489 (6th Cir.

2023) (when considering factual allegations, we “need not accept as true . . . unwarranted factual

inferences” (quoting JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581–82 (6th Cir.

2007))).

Plaintiffs’ equal protection claim fails for similar reasons. The City did not treat Plaintiffs

any differently than other similarly situated citizens when Plaintiffs were denied entry to the press

conference. See Youkhanna v. City of Sterling Heights, 934 F.3d 508, 521 (6th Cir. 2019).

B. Claim 2

Plaintiffs allege that their First Amendment right to free speech and their Fourteenth

Amendment right to equal protection were violated when police officers prevented them from

gathering signatures in support of the 2020 Initiative “while standing on the public sidewalk next

to the Farmer’s Market.” This was allegedly done while the City—at the same farmer’s market—

urged people not to sign Plaintiffs’ petition and handed out flyers advising people to vote against

the 2020 Initiative.

Claim 2 does not give rise to a Monell claim. Though Plaintiffs identify police officers as

the ones who prevented them from exercising their free speech rights, they do not identify a custom

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or policy or final decision-maker that authorized the police officers’ actions. Nor do Plaintiffs

claim that the City failed to inadequately train or supervise the police officers. Such identification

is essential to maintain a Monell claim against the City.2 See D’Ambrosio, 747 F.3d at 38687.

Thus, Plaintiffs’ Monell claim as to Claim 2 fails.

C. Claim 3

Plaintiffs allege that the City used Medina TV to broadcast views opposing the 2020

Initiative, while Plaintiffs and other proponents of the Initiative were denied access to present their

own views. Plaintiffs allege that this denial resulted from a custom of the City. The complaint

does not identify who denied the request, though attached to the complaint is an email from what

seems to be an employee at Medina TV. The email informed Plaintiffs that the government access

channel is unavailable to the public but offered a public access channel where they may request

airtime to express their views.

Plaintiffs’ complaint belies their Monell claim. Unlike Claim 1, the complaint does not

identify which City employee denied them access to Medina TV and whether that employee had

final decision-making authority. There is only a conclusory statement that, while views supporting

the 2020 Initiative were excluded from the broadcast by unnamed persons, the City’s broadcasting

of opposing views was “done under the color of law as shown in the Ordinances of the City and

2
Plaintiffs reference on appeal a transcript taken from a case management conference, where a
City official allegedly identifies the illegal custom or policy that prevented Plaintiffs from
exercising their free speech rights. Additionally, after all briefs were filed, Plaintiffs asked this
court to consider meeting minutes allegedly posted by the government on Facebook. In deciding
a motion for judgment on the pleadings, we look only to the complaint and the exhibits it references
that are central to its claims. United Food & Com. Workers, Loc. 1995 v. Kroger Co., 51 F.4th
197, 201 (6th Cir. 2022); Brent, 901 F.3d at 695. Plaintiffs cite no authority for us to review a
case management conference transcript not referenced in the complaint, let alone meeting minutes
that were not properly before the district court. See Lawrence v. Chabot, 182 F. App’x 442, 455
n.5 (6th Cir. 2006).
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the custom and usage of the City.” Nowhere in the complaint do Plaintiffs identify what those

ordinances are, nor do they identify an individual with final decision-making authority who ratified

the decision. Such conclusory statements are insufficient to establish a Monell claim. See Iqbal,

556 U.S. at 678. Plaintiffs claim that the City had a custom and usage of denying access to political

opponents, but, in the email chain, Plaintiffs state “it has been the practice of Medina TV to have

all sides of an issue . . . to have an opportunity to appear.” In Plaintiffs’ own words, therefore,

their denied request was not part of the City’s custom. Accordingly, Plaintiffs fail to allege

adequately a Monell claim as to their denied use of Medina TV.

D. Claim 4

Plaintiffs argue not only that we should reverse the district court’s grant of the City’s

motion for judgment on the pleadings for Claim 4, but also that we should grant Plaintiffs’ motion

for judgment on the pleadings for this claim. But, here as well, we affirm the district court.

Plaintiffs allege that the City violated their First Amendment rights when it counterclaimed

against them after Plaintiffs filed a taxpayer lawsuit against the City. Similar to Claim 3, the

complaint fails to identify who decided to file the counterclaim—it only makes a conclusory

statement that the counterclaim was brought under the color of law and custom and usage of the

City. Yet, even if we afford Plaintiffs the latitude that a counterclaim could not have been filed

without the authorization of a final decision-maker, Plaintiffs still fail to allege adequately a Monell

claim.

We construe Plaintiffs’ allegations related to the City’s counterclaim as a First Amendment

retaliation claim, a characterization Plaintiffs adopt in their appellate brief. To sustain a First

Amendment retaliation claim, the plaintiff must sufficiently allege that “(1) the plaintiff engaged

in constitutionally protected conduct; (2) an adverse action was taken against the plaintiff that

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would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the

adverse action was motivated at least in part by the plaintiff’s protected conduct.” Handy-Clay v.

City of Memphis, 695 F.3d 531, 539 (6th Cir. 2012) (quoting Fritz v. Charter Twp. of Comstock,

592 F.3d 718, 723 (6th Cir. 2010)). We will focus our analysis on the third element.

Not every adverse action related to First Amendment activity is constitutionally

cognizable. Sensabaugh v. Halliburton, 937 F.3d 621, 628 (6th Cir. 2019). When considering the

third element, we require a plaintiff to show that the plaintiff’s protected activity at least partially

motivated the government to take the adverse action. See Lemaster v. Lawrence Cnty., 65 F.4th

302, 309 (6th Cir. 2023). Our inquiry into motivation is limited at the early stages of litigation.

See Handy-Clay, 695 F.3d at 545 (citing Evans-Marshall v. Bd. of Educ. of Tipp City Exempted

Vill. Sch. Dist., 428 F.3d 223, 232 (6th Cir. 2005)). Close proximity between the protected speech

and the adverse action can support the requisite motivation. See Buddenberg v. Weisdack, 939

F.3d 732, 741 (6th Cir. 2019). But we may find a lack of requisite motivation where the

government can show it “would have taken the same action even in the absence of the protected

conduct.” Evans-Marshall, 428 F.3d at 232 (citation omitted).

Plaintiffs argue that the very nature of the counterclaim demonstrates motivation—that

there was no reason for the City to sue Plaintiffs except for Plaintiffs’ outspoken position on the

2020 Initiative. But the nature of the counterclaim and the way it was brought lead us to conclude

otherwise.

Ohio Rule of Civil Procedure 13(A) requires a responsive pleading to “state as a

counterclaim any claim which at the time of serving the pleading the pleader has against any

opposing party, if it arises out of the transaction or occurrence that is the subject matter of the

opposing party’s claim.” Ohio R. Civ. P. 13(A). Plaintiffs’ lawsuit, brought on behalf of the

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taxpayers of Medina pursuant to Ohio Revised Code § 733.59, sought an injunction against the

City for, among other things, violating the 2020 Initiative. See City of Medina ex rel. Jocke v. City

of Medina, No. 21CIV0083 (Ohio C.P. Medina Cnty. Apr. 22, 2021). The City answered in part

with a counterclaim, seeking a declaratory judgment that the Initiative violated the Ohio

Constitution and the City’s charter, and that it impaired the City’s contractual rights. Id. Further,

contrary to Plaintiffs’ assertion, the City did not seek damages; rather, the City sought attorney’s

fees and costs of litigation. Id. That the counterclaim named Plaintiffs specifically is of no

consequence—Plaintiffs were the named taxpayers bringing the lawsuit on behalf of other

taxpayers. Id. Whatever the merits of Plaintiffs’ claims on Ohio law grounds, the City did not

bring its counterclaim because of Plaintiffs’ protected speech, but rather because of Ohio’s rules

of civil procedure. See Aday v. Westfield Ins. Co., No. 21-3115, 2022 WL 203327, at *14 (6th Cir.

Jan. 24, 2022). Such an action is not of the same caliber of actions that we have previously

suggested could raise an inference of unlawful motivation. Cf. Benison v. Ross, 765 F.3d 649,

660–63 (6th Cir. 2014) (government entity’s decision to initiate a lawsuit against plaintiff

constituted an adverse action).

Plaintiffs’ equal protection portion of the claim also fails. Equal protection “embodies the

principle that all persons similarly situated should be treated alike.” Scarbrough v. Morgan Cnty.

Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006) (citing City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985)). Disparate treatment among similarly situated persons is the threshold

element of any equal protection claim. Id. Aside from failing to allege sufficiently a First

Amendment retaliation claim, at no point in the complaint do Plaintiffs identify similarly situated

persons who were treated differently by the City. In their appellate brief, Plaintiffs mention other

“initiative supporters” who were not part of the City’s counterclaim, but they fail to allege that any

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of those other supporters sued the City on the taxpayers’ behalf and that the City in turn failed to

counterclaim against them. Plaintiffs’ equal protection claim therefore fails. See id.

Finally, for the first time on appeal, Plaintiffs argue that the City’s counterclaim constituted

a SLAPP suit—that is, a strategic lawsuit against public participation. We generally do not

consider arguments raised for the first time on appeal and decline to do so here. See Cash-Darling

v. Recycling Equip., Inc., 62 F.4th 969, 975 (6th Cir. 2023) (“As a general rule in this Circuit,

arguments raised for the first time on appeal are forfeited.” (quoting Kreipke v. Wayne State Univ.,

807 F.3d 768, 781 (6th Cir. 2015))).

E. Claim 9

Plaintiffs allege that the City violated their due process rights under § 1983 when the City

misappropriated the “Save Your Courthouse” slogans and colors in violation of Title 15 of the

United States Code.3 But, again, Plaintiffs fail to allege, outside of conclusory statements, facts

that establish the existence of an illegal policy or law that required the misappropriation.

D’Ambrosio, 747 F.3d at 38687. Nor does the complaint identify persons with final decision-

making authority that ratified the action, let alone any existing custom of, tolerance of, or

acquiescence to violating federal rights. See id. We therefore find that Plaintiffs failed to plead

facts sufficient to sustain a Monell claim for Claim 9.

IV.

In their appellate brief, Plaintiffs provide no argument concerning Claims 5, 6, 7, and 8.

At most, they state in a footnote that “[a]ll nine claims are valid claims, and the dismissal of all

claims should be reversed for reasons discussed in connection with the other claims.” Because

3
Plaintiffs argue for the first time on appeal that their complaint should be construed to assert an
independent unfair–competition claim under 15 U.S.C. § 1125(a). But we decline to review the
claim for the first time on appeal. Cash-Darling, 62 F.4th at 975.
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Plaintiffs made no effort to develop arguments supporting Claims 5, 6, 7, and 8, those claims are

forfeited. See Rawe v. Liberty Mut. Fire Ins. Co., 462 F.3d 521, 525 n.4 (6th Cir. 2006) (claims

were forfeited when plaintiff failed to offer more than a perfunctory statement in appellate brief

for why claims should survive motion for judgment on the pleadings) (citing United States v. Reed,

167 F.3d 984, 993 (6th Cir. 1999)).

V.

Lastly, Plaintiffs argue the district court erred when it failed to grant them leave to amend

their complaint. We review a district court’s denial of leave to amend a complaint for abuse of

discretion. Total Benefits Plan. Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430,

437 (6th Cir. 2008) (citing Evans v. Pearson Enters., Inc., 434 F.3d 839, 853 (6th Cir. 2006)).

When the district court denies leave to amend a complaint because no amended pleading would

survive a motion to dismiss, we review such denial de novo. Id.

As part of their opposition to the City’s motion for judgment on the pleadings, Plaintiffs

included a section titled “Motion to Amend Pleadings.” The section, without explanation, only

requested leave to amend the complaint should the district court find the pleadings inadequate.

The district court denied Plaintiffs’ request, stating that they had failed to move properly to amend,

and that their request lacked legal support. What’s more, Plaintiffs failed to provide the district

court any information concerning the proposed amendments. We have previously held that a

district court did not abuse its discretion when it denied leave to amend a complaint based on a

request first made in opposition to a motion to dismiss, rather than in a separate motion to amend.

See Begala v. PNC Bank, Ohio, Nat’l Ass’n, 214 F.3d 776, 784 (6th Cir. 2000). Accordingly, we

find that the district court did not abuse its discretion here.

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No. 22-3954, Jocke, et al. v. City of Medina

VI.

For the foregoing reasons we AFFIRM the district court’s grant of the City’s motion for

judgment on the pleadings.

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