194 F.3d 737 (6th Cir. 1999), 98-3969, Jackson v Columbus

Docket Nº:98-3969, 98-4010
Citation:194 F.3d 737
Party Name:James G. Jackson, Plaintiff-Appellant, v. City of Columbus, Gregory Lashutka, Thomas W. Rice, Sr., Defendants-Appellees.
Case Date:September 30, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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194 F.3d 737 (6th Cir. 1999)

James G. Jackson, Plaintiff-Appellant,


City of Columbus, Gregory Lashutka, Thomas W. Rice, Sr., Defendants-Appellees.

Nos. 98-3969, 98-4010

United States Court of Appeals, Sixth Circuit

September 30, 1999

Argued: August 5, 1999

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 17, 1999

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 97-01113--James L. Graham, District Judge.

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William C. Wilkinson, Paul Giorgianni, Scott A. Campbell, Charles E. Ticknor, THOMPSON, HINE & FLORY, Columbus, Ohio, Benson A. Wolman, Susan B. Gellman, WOLMAN, GENSHAFT & GELLMAN, Columbus, Ohio, for Appellant.


John R. Gall, Philomena M. Dane, Jeffrey A. Yeager, SQUIRE, SANDERS & DEMPSEY, Columbus, Ohio, for Defendant-Appellee

Bradd N. Siegel, Kathleen M. Trafford, James A. King, Constance M. Greaney, PORTER, WRIGHT, MORRIS & ARTHUR, Columbus, Ohio, for Appellees.

Before: JONES, SILER, and GILMAN, Circuit Judges.



James G. Jackson, the Chief of Police of Columbus, Ohio, filed suit against the City of Columbus, Mayor Gregory S. Lushatka, and Director of Public Safety Thomas W. Rice, Sr. (collectively referred to as "the City"), claiming that the City had deprived

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him of various constitutional rights during the course of an investigation into his allegedly improper conduct as Chief of Police. The district court granted the City's motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure as to all of Jackson's claims, except his state-based claim of defamation, over which it declined to exercise supplemental jurisdiction. For the reasons stated below, we REVERSE the district court's dismissal of Jackson's First Amendment freedom of speech claim and REMAND such claim, as well as his claim of defamation under state law, for further proceedings consistent with this opinion. We AFFIRM the district court's dismissal of all of his other claims.


This case involves a dispute between Columbus's Chief of Police and the City. Jackson, the first African-American Chief of Police in Columbus, was investigated by the City in the fall of 1996 for his allegedly improper conduct in office. On October 10, 1996, Jackson was informed by a letter from Rice that he was being reassigned to his residence pending the mayoral investigation. This letter also informed Jackson that he was not to make any comments to the media regarding the investigation while it was pending and that he was not to enter his office or any other city facilities during that time. Following this reassignment, Jackson's office was searched and Deputy Chief Kern, a white officer, was appointed by Rice as the Acting Chief of Police.

Four days later, after being advised by the City Attorney that Jackson's reassignment could be construed as a suspension, a clarification letter was sent by Rice, informing Jackson that he was to perform all of his duties as Chief of Police at the administrative offices of the Columbus Division of Fire. Jackson was also told not to make any personnel changes within the Division of Police or to enter any police facility without Rice's prior approval. Rather than report to the Division of Fire to perform his duties as Chief of Police, Jackson elected to use his accrued vacation time. The City, however, did not require Jackson to forfeit any pay or benefits during this period of time.

On November 29, 1996, Jackson was formally suspended (with continuing pay and benefits) for alleged incompetence and gross neglect of duty in violation of the laws of the state of Ohio, the City of Columbus, and the rules of the Columbus Division of Police. Certain charges were then referred to the Columbus Municipal Civil Service Commission for review, alleging that Jackson had failed to fairly discipline a commander within his department, failed to efficiently manage the operations of the vice bureau, failed to maintain police records in a homicide investigation, failed to protect the integrity of the police department, and had used his position to influence hiring decisions for friends and family. On December 30, 1996, the Commission rendered a decision finding that two of the charges had been proven -- namely, that he had failed to properly discipline a commander within his department and that he had destroyed police records in a homicide investigation. The Commission imposed a sanction of a five-day suspension without pay or the forfeiture of five vacation days on these two charges. Jackson has not challenged the November 29, 1996 suspension or the December 30, 1996 decision of the Commission.

On July 1, 1997, Rice published a draft investigative report regarding the results of the investigation. According to Jackson, the report contained "false and defamatory statements."

Based on the October 10, 1996 reassignment letter, the gag order, the banishment order, and the 1997 publication of the investigative report, Jackson filed suit in the United States District Court for the Southern District of Ohio. He alleged causes of action based on the following federal claims: (1) First Amendment freedom of

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speech, (2) First Amendment right to petition, (3) procedural due process under the Fourteenth Amendment, (4) substantive due process under the Fourteenth Amendment, (5) racial discrimination in violation of 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Equal Protection Clause of the Fourteenth Amendment, (6) conspiracy in violation of 42 U.S.C. § 1985, and (7) retaliation in violation of 42 U.S.C. § 1983.

Jackson also alleged causes of action based on the following state claims: (1) various violations of the Ohio Constitution, (2) intentional infliction of emotional distress, (3) invasion of privacy, (4) racial discrimination and retaliation in violation of Ohio Revised Code § 4112, and (5) defamation. Finally, he sought a declaration that the 1997 investigative report was illegal and requested an injunction ordering its expungement from the City's records.

The district court granted the City's Rule 12(b)(6) motion to dismiss all of Jackson's claims for failure to state a claim upon which relief could be granted, except for his state claim of defamation. As to the defamation claim, the district court declined to exercise supplemental jurisdiction, and thus dismissed it without prejudice. Jackson has timely appealed.


A. Standard of review

A district court's dismissal of a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure is reviewed de novo. See Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998). "The court must construe the complaint in a light most favorable to the plaintiff, and accept all of [the] factual allegations as true." Id. "Dismissal pursuant to a Rule 12(b)(6) motion is proper only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Id. (internal quotation marks omitted).

In support of his challenge to the district court's ruling, Jackson repeatedly claims that the court did not adequately consider the facts as alleged in his complaint. A court is not required, however, to accept a plaintiff's summary allegations or unwarranted legal conclusions in ruling on a motion to dismiss. See Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th Cir. 1996).

B. Consideration of exhibits

In making its ruling, the district court considered certain exhibits attached to Rice's motion to dismiss. As stated by the district court, "as a general rule, matters outside the pleadings may not be considered in ruling on a 12(b)(6) motion to dismiss unless the motion is converted to one for summary judgment under Fed. R. Civ. P. 56." See Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir. 1997). There are, however, exceptions to this general rule. Documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim. See id. at 89. Courts may also consider public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies. See, e.g., Nieman v. NLO , Inc., 108 F.3d 1546, 1554 (6th Cir. 1997) (public records); Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 (5th Cir. 1996) (judicial notice); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993) (letter decisions of governmental agencies).

On appeal, Jackson specifically argues that the district court improperly considered a December 30, 1996 decision rendered by the Civil Service Commission and documents from Jackson's state court mandamus case. The December 30, 1996 decision of the Civil Service Commission, however, was a matter of public record and was referred to in Jackson's complaint. The documents from Jackson's state court mandamus case were also public records in a related case. Both of these

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documents were therefore properly considered by the district court.

C. Federal claims

1. First Amendment freedom of speech

Jackson claims that the City violated his First Amendment right to freedom of speech by imposing the gag order. Under the gag order, Jackson was forbidden to speak with the news media about the investigation into his alleged misconduct while the...

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