Jones v. Village of Golf Manor

             UNITED STATES DISTRICT COURT                            
               SOUTHERN DISTRICT OF OHIO                             
                   WESTERN DIVISION                                  

JAMES JONES, et al.,                                                      

Plaintiff,                         Case No. 1:18-cv-403              

     vs.                           Dlott, J.                         
                                   Bowman, M.J.                      

VILLAGE OF GOLF MANOR, et al.,                                            

Defendants.                                                          
             REPORT AND RECOMMENDATION                               
 This civil action is now before the Court on Defendants Matt Brettcher, Sharon 
Chaney, Stephan Densmore, Brenda DuBose, Ron Hirth, Lou Marx, Greg Schwartzberg, 
Village of Golf Manor motion for judgment on the pleadings (Doc. 51) and the responsive 
memoranda. (Docs. 53, 54). Upon careful consideration, the undersigned finds that 
Defendants motion is well-taken.                                          
A.  Background and Facts                                             
Plaintiffs, the owners of two apartment buildings in the Village of Golf Manor, rent 
the residential spaces in these buildings mostly to sex offenders. Doc. 10, PAGEID# 54-
55. On April 14, 2018, Plaintiffs allege that an inspection of Plaintiff’s buildings was 
conducted, without notice given to Plaintiffs, by Tucker Stone, the Golf Manor Police and 
Fire Departments, and the Golf Manor Building Code Inspector. (Doc. 10, PAGEID# 55). 
Golf Manor officials met with Plaintiffs on April 27, 2018 regarding a new village ordinance 
that would require Plaintiffs’ sex offender tenants to move out. Id. At the end of April, 
Defendant Joy Pierson called Greater Cincinnati Behavioral (“GCB”), where Plaintiffs get 
most of their tenants, and told GCB that Plaintiffs’ building was going to be condemned. 
(Doc. 10, PAGIED# 56). GCB prepared for evacuation and held Plaintiffs’ rent checks for 
over a month. Id. Golf Manor’s ordinance was given its third reading on May 14, 2018 and 
went into effect 30 days later. Id. Plaintiffs allege that they were never informed of the first 
two readings. Id. Plaintiff Mr. Jones was off work because of a surgery during these 
events. Id.                                                               

Thereafter, Plaintiffs filed the instant action against the Village of Golf Manor, its 
administrator and council members, and the commissioner and an employee of the 
Hamilton  County  Health  District  alleging  various  constitutional  violations.  (Doc.  1, 
PAGEID # 1). All of the individual defendants were sued in both their official and individual 
capacities. Id.                                                           
Plaintiffs sought leave to file an amended complaint through a series of filings 
(Docs. 10, 12). Answers were filed as to the original complaint (Doc. 1) by the Golf Manor 
Defendants (Doc. 13, filed June 28, 2018) and by the Health District Defendants (Doc. 
14, filed July 2, 2018). On October 25, 2018, this Court entered a notation order granting 

Plaintiffs’ Motion to File an Amended Complaint (Doc. 10) which named as additional 
defendants: Joy Pierson and Todd Kinskey.  On October 31, 2018, the Golf Manor 
Defendants answered the Amended Complaint. (Doc. 17). The Golf Manor Defendants 
include the Village, Mayor Greg Schwartzberg, Village Administrator Ron Hirth, and 
Village Councilmembers Matt Boettcher, Sharon Chaney, Stefan Densmore, Brenda 
Dubose and Lou Marx.                                                      
Thereafter, Timothy Ingram,  Health  Commissioner  of  Hamilton  County  Public 
Health,  Tucker  Stone,  Environmental  Health  Supervisor  of  Hamilton  County  Public 
Health, and Joy Pierson, Community Development Administrator with Hamilton County 
Planning + Development in their official and individual capacities (collectively referred to 
as “County Defendants”), moved to dismiss the Amended Complaint (Doc. 21, PAGEID 
#94), and County Defendant Kinskey followed with a separate motion to dismiss (Doc. 
22,  PAGEID  #109).  On  April  11,  2019,  the  Magistrate  Judge’s  Report  and 
Recommendation recommended that the County Defendants’ motions to dismiss (Docs. 

21, 22) should be granted and that Plaintiffs’ claims against Defendants Timothy Ingram, 
Todd Kinskey, Joy Pierson, Tucker Stone should be dismissed.              
Defendants Village of Golf Manor, Greg Schwartzberg, Ron Hirth, Matt Boettcher, 
Sharon Chaney, Stefan Densmore, Brenda Dubose and Lou Marx, (herein “Golf Manor 
Defendants”), now seek to have the claims asserted against them dismissed. For the 
reasons set forth below, the undersigned finds that the Golf Manor Defendants motion for 
judgment on the pleadings (Doc. 51) is well-taken and should be granted.  
II. Analysis                                                         
A.  Standard of Review                                               

Under the Federal Rules of Civil Procedure, “after the pleadings are closed—but 
early enough not to delay trial—a party may move for judgment on the pleadings.” 
Fed.R.Civ.P. 12(c). Judgment may be granted under Rule 12(c) where the moving parties 
clearly establish that no material issue of fact remains to be resolved and that they are 
entitled to judgment as a matter of law. JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 
577, 581 (6th Cir. 2007). A motion for judgment on the pleadings under Rule 12(c) is 
subject  to  the  same  standard  of  review  as  a  motion  under  Rule  12(b)(6). 
Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th 
Cir.2005). In addition, it is well settled that, in presenting a complaint, “[t]hreadbare recital 
of the elements of a cause of action, supported by mere conclusory statements, do not 
suffice.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). “Although 
the  court  must  accept  well-pleaded  factual  allegations  of  the  complaint  as  true  for 
purposes of a motion to dismiss, the court is not bound to accept as true a legal conclusion 
couched as a factual allegation.” Id., see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 

1937, 1949 (2009). Specifically, “formulaic recitations of the elements of a cause of action 
‘will not do.’” Huffer v. Bogen, Case No. 1:10-cv-312-HJW, *8 (S.D. Ohio 2011), citing 
Twombly at 555 and Iqbal at 1949. “What Twombly and Iqbal do require is that plaintiffs 
provide factual allegations from which a court may plausibly infer a cause of action.” Gross 
v. Nationwide Credit, Inc., Case No. 1:10-CV-00738, *3 (S.D. Ohio 2011).  
B.  Defendants motion is well-taken                                  
 The Golf Manor Defendants argue that they are entitled to judgment as a matter 
of law because Plaintiff’s do not have standing. Defendants further contend that they are 
entitled to legislative and /or qualified immunity.  Each assertion will be addressed in turn.   

1.  Standing                                                         
“‘No principle is more fundamental to the judiciary’s proper role in our system of 
government than the constitutional limitation of federal-court jurisdiction to actual cases 
or controversies.’” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. Eastern 
Ky. Welfare Rights Organization, 426 U.S. 26, 37 (1976)). To have standing, a plaintiff 
must establish (1) an “injury in fact,” meaning “an invasion of a legally protected interest 
[that] is (a) concrete and particularized and (b) ‘actual or imminent, not “conjectural” or 
“hypothetical”’”; (2) “a causal connection between the injury and the conduct complained 
of,” i.e., the injury complained of must be “fairly ... trace[able] to the challenged action of 
the defendant, and not ... th[e] result [of] the independent action of some third party not 
before the court”; and (3) that it is “‘likely,’ as opposed to merely ‘speculative,’ that the 
injury will be ‘redressed by a favorable decision.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 
560 (1992) (alterations in original) (citations omitted).                 
Claimants cannot file a lawsuit based on a “highly speculative fear” that a law may 

harm them at some future date. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 410 (2013). 
The injury instead must be “certainly impending.” Id. An allegation “of possible future 
injury” is not enough. Id. at 409 (quotation omitted). The Supreme Court has stated, “The 
party invoking federal jurisdiction bears the burden of establishing’ standing.” Susan B. 
Anthony List v. Driehaus, 134 S.Ct. 2334, 2342, 573 U.S. 149, 158 (U.S.,2014), (internal 
citation omitted). “[E]ach element must be supported in the same way as any other matter 
on which the plaintiff bears the burden of proof, i.e., with the manner and degree of 
evidence required at the successive stages of the litigation.” Id.        
Here, Defendants contend that Plaintiffs have not suffered an actual injury and do 

not have a “certainly impending” risk of injury. Notably, Plaintiffs cannot produce any 
evidence that they are subject to the village ordinances.  Plaintiff as they are simply 
landlords and not the sex-offender tenants. The Plaintiffs also have not alleged that they 
have been convicted of an offense which requires them to register as a sex offender in 
Ohio, which would avail them to the restrictions in the Village of Golf Manor Ordinances 
2018-4 and 2018-7. Thus, these Plaintiffs have failed to establish that they have standing 
to challenge these ordinances because they have failed to provide evidence that they are 
subject  to  its  restrictions.  Accordingly,  this  matter  is  properly  dismissed  for  lack  of 
standing.                                                                 
2.  Immunity                                                         
 Assuming arguendo, that Plaintiffs have stand to bring this action, Defendants 
further contend that the Village of Golf Manor Defendants are entitled to legislative and 
qualified immunity.                                                       
Legislative immunity for state and local legislators and their surrogates is derived 

from federal common law which is similar in scope and object to the immunity afforded 
federal legislators under the Speech and Debate Clause of the Unites States Constitution, 
Article I, § 6, cl. 1. The Clause is written to ensure that the Legislative Branch will be able 
to perform without undue interference all of the legislative  functions given it in the 
Constitution. The Clause operates to shelter individual legislators from the distractions 
and hindrance of civil litigation and immunizes them from suits for prospective relief or 
damages. National Association of Social Workers v. Harwood, 69 F.3d 622, 629-630 (1st 
Cir. 1995) citing Eastland v. Units States Servicemen’s Fund, 421 U.S. 491, 502-03; 95 
S.Ct. 1813, 1820-21; 44 L.Ed.2d 324 (1975) and Supreme Court of Virginia v. Consumers 

Union of the U.S., Inc., 446 U.S. 719, 731 (1980). While the core protection conferred by 
the Clause concerns speech or debate, the protection is broader extending to any act 
done in a session of the House by one of the members in relation to the business before 
it. Id. at 630 citing Kilbourn v. Thompson, 103 U.S. 168, 204 (1880). The key limitation of 
the protection of the Speech and Debate Clause which applies to both members of 
Congress and staffers is that the clause only protects “purely legislative activities.” Id. 
citing United States v. Brewster, 408 U.S. 501, 512; 92 S.Ct. 2531, 2537; 33 L.Ed.2d 507 
(1972).                                                                   
Here, Defendants argue that the actions of the Village Council meeting should be 
considered legislative in nature. Notably, Defendants contend that the actions of the 
Village  Councilmembers  in  participating  in  a  vote  on  the  sex  offender  residency 
ordinances at issue falls under the definition of “legislative activity.” The undersigned 
agrees.                                                                   

“The United States Supreme Court has held that ‘absolute legislative immunity 
attaches to all actions taken in the sphere of legitimate legislative activity.’” Harris v. City 
of St. Clairsville, Ohio, S.D. Ohio No. C2-04-CV-1179, 2006 WL 3791409 (Dec. 21, 2006), 
quoting Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). 
Signing an ordinance into law is “quintessentially legislative,” but the definition is broader 
and covers other aspects of the legislative process. See Timmon v. Wood, 633 F.Supp.2d 
453, 459-460 (W.D. Michigan, April 2008) citing Bogan. “The claim of an unworthy 
purpose does not destroy the privilege,” and a legislator is entitled to absolute immunity 
for actions taken within the legislative sphere even if the legislator acted “to intimidate 

and silence” and to prevent a person “from effectively exercising his constitutional rights.” 
Id. citing Tenney at 371, 377.                                            
Here, the undersigned agrees that the individual Golf Manor defendants, in acting 
in their role as village councilmembers and voting on the ordinances, were acting in a 
legislative capacity and they are protected from claims such as the one brought by 
Plaintiffs.  The  Village  of  Golf  Manor  Defendants  are  entitled  to  absolute  legislative 
immunity on all of Plaintiffs’ claims.                                    
In the alternative, the Village of Golf Manor Individual Defendants argue that they 
are entitled to qualified immunity as the claimed disregard for the law was not apparent 
under existing law.  The purpose of qualified immunity is to provide governmental officials 
with the ability “reasonably to anticipate when their conduct may give rise to liability for 
damages.” See Anderson v. Creighton, 483 U.S. 635, 646 (1987) (internal quotation 
omitted). Thus, a governmental official performing discretionary functions will be entitled 
to  qualified  immunity  unless  his  actions  violate  “clearly  established  statutory  or 

constitutional  rights  of  which  a  reasonable  person  would  have  known.” Harlow  v. 
Fitzgerald, 457 U.S. 800, 818 (1982). A governmental official is entitled to immunity if the 
facts alleged do not make out a violation of a constitutional right, or if the alleged 
constitutional right was not clearly established at the time of the defendant’s alleged 
misconduct. Pearson v. Callahan, 129 S.Ct. 808 (2009). Here, the claimed constitutional 
violations in this context are not clearly established. As such, the claims against Village 
of Golf Manor Individual Defendants are also properly dismissed under qualified immunity 
Defendants further contend that the Village of Golf Manner is immune from suit 
under O.R.C. Chapter 2744. Namely, Ohio Revised Code Chapter 2744 sets forth a 

general grant of immunity from liability for political subdivisions and employees of political 
subdivisions engaged in governmental functions. The Ohio Political Subdivision Tort 
Liability Act, R.C. Chapter 2744, provides that: political subdivisions are generally immune 
from liability for damages in civil actions: “[e]xcept as provided in division (B) of this 
section, 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.” Vacha v. N. Ridgeville 136 Ohio St.3d 199, 201-202, 992 N.E.2d 
1126, 1130 (Ohio, 2013), R.C. 2744.02(A)(1). A political subdivision is defined by R.C. 
2744.01(F) as a “municipal corporation, township, county, school district, or other body 
corporate and politic responsible for governmental activities in a geographic area smaller 
than that of a state.”  Employees of a political subdivision sued in their official capacities 
are entitled to the same immunity afforded the political subdivision. R.K. v. Little Miami 
Golf Ctr. 2013 WL 5972410, 8 (Ohio App. 1 Dist.)(Ohio App. 1 Dist., 2013). 

Plaintiffs allege that one of the exceptions to immunity under R.C. 2744.02(B) 
applies here. Specifically, R.C. 2744.02(B)(2), which provides, “(2) the negligent act of a 
government employee with respect to proprietary functions of the political subdivision.”   
Thus, Plaintiffs appear to assert that the Golf Manor Defendants were acting within a 
proprietary function.                                                     
A proprietary function is generally defined as one that promotes or preserves the 
public peace, health, safety or welfare and that involves activities customarily engaged in 
by nongovernmental persons. Ohio Revised Code Ann. Sec. 2744.01(G)(1)(b). In the 
First  Amended  Complaint,  Plaintiffs  allegations  consists  entirely  of  the  Golf  Manor 

Defendants passing an ordinance placing residency restrictions on sex offenders. These 
allegations involve acts or omissions all clearly within the discretion of Golf Manor and its 
employees  and  cannot  be  considered  a  proprietary  function.  Thus,  the  Golf  Manor 
Defendants are protected under R.C. 2744.                                 
Plaintiff have also alleged the Village Council is liable as it had a special duty under 
the public duty rule to act under R.C. 2744.02(B)(5) and R.C. 2743.02(A)(3)(b). Under the 
public duty rule, a municipality owes a duty only to the general public when performing 
functions imposed on it by law and therefore is not liable for a breach of that duty resulting 
in harm to an individual, absent a special duty owed to the injured person. Riotte v. 
Cleveland, 195 Ohio App. 3d 387, 2011- Ohio-4507, 960 N.E.2d 496 (8th Dist. Cuyahoga 
County 2011). The Village of Golf Manor was under no statutory obligation to act in this 
case.  In other words, the public duty rule holds the government can be held liable only if 
that governmental entity affirmatively undertakes a duty to act in a situation where the 
governmental entity knows that inaction will cause harm and when a party who ultimately 

is injured relies upon the government to do what it promised. Hurst v. State Dept. of 
Rehabilitation and Correction, 1993 WL 387300, at *2 (Ohio App. 10 Dist.,1993). Here, 
however, Plaintiffs have failed to alleged any acts to create an exception to the public 
duty rule. As such, the Village of Golf Manor remains immune from suit under O.R.C. 
Chapter 2744.                                                             
3.  State Law Claims                                                 
Finally, to the extent Plaintiff claims the actions of Defendant violated Ohio state 
law, the Court should decline to exercise pendent jurisdiction over any such claims 
because Plaintiff fails to state a viable federal law claim. See United Mine Workers v. 

Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Thus, any state law claims 
should be dismissed without prejudice for lack of jurisdiction.           
III. Conclusion                                                      
For these reasons, the Court hereby RECOMMENDS that the Defendants motion 
for  judgment  on  the  pleadings  (Doc.  51)  be GRANTED  and  this  matter 
be TERMINATED on the active docket of the Court.                          
                                    /s Stephanie K. Bowman             
                                   Stephanie K. Bowman               
                                   United States Magistrate Judge    
             UNITED STATES DISTRICT COURT                            
               SOUTHERN DISTRICT OF OHIO                             
                   WESTERN DIVISION                                  

JAMES JONES, et al.,                                                      

Plaintiff,                         Case No. 1:18-cv-403              

     vs.                           Dlott, J.                         
                                   Bowman, M.J.                      

VILLAGE OF GOLF MANOR, et al.,                                            

                           Defendants.                               
                           NOTICE                                    
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of 
the filing date of this R&R.  That period may be extended further by the Court on timely 
motion by either side for an extension of time.  All objections shall specify the portion(s) 
of the R&R objected to, and shall be accompanied by a memorandum of law in support 
of the objections.  A party shall respond to an opponent’s objections within FOURTEEN 
(14) DAYS after being served with a copy of those objections.  Failure to make objections 
in accordance with this procedure may forfeit rights on appeal.  See Thomas v. Arn, 474 
U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).