Bojicic v. DeWine

• Decision Date: 27 October 2021
• Docket Number: Case No. 3:21-CV-00630-JGC
• Citation: 569 F.Supp.3d 669
• Parties: Erica BOJICIC, et al., Plaintiffs v. Michael DEWINE, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

569 F.Supp.3d 669

Erica BOJICIC, et al., Plaintiffs

v.Michael DEWINE, et al., Defendants.

Case No. 3:21-CV-00630-JGC

United States District Court, N.D. Ohio, Western Division.

Filed October 27, 2021

Robert J. Gargasz, Law Office of Robert J. Gargasz, Lorain, OH, Thomas B. Renz, Renz Law, Fremont, OH, for Plaintiffs.

Melissa Z. Kelly, Robert J. Hanna, Seth J. Linnick, Tucker Ellis, Cleveland, OH, for Defendants Michael DeWine, Stephanie McCloud, Lance Himes, Amy Acton.

Amily A. Imbrogno, Frank H. Scialdone, Mazanec, Raskin & Ryder, David M. Smith, Meyers, Roman, Friedberg & Lewis, Cleveland, OH, for Defendants Joseph Mazzola, Peter Schade, David Covell, Kirkland Norris, Donna Skoda.

Jake A. Elliott, Office of the Prosecuting Attorney, Cleveland, OH, for Defendant Terry Allan.

Jacklyn Gonzales Martin, City of Cincinnati, Cincinnati, OH, for Defendant Melba R. Moore.

Richard N. Coglianese, Office of the City Attorney, Columbus, OH, for Defendant Mysheika Roberts.

John A. Borell, Sr., Kevin A. Pituch, Office of the Prosecuting Attorney, Toledo, OH, for Defendant Eric Zgodzinski.

ORDER

James G. Carr, Senior United States District Judge

In this action, fifteen dance studio owners challenge "the numerous orders, rules, and regulations issued by the State of Ohio in response to COVID-19." (Doc. 1, pgID 16). They have named as defendants Governor Michael DeWine, the Ohio Department of Health's present and former Directors, Ohio, and fifteen city and county Health Commissioners. Plaintiffs have sued all defendants in both their official and personal capacities.¹ They have raised three claims against all defendants: 1) substantive due process; 2) equal protection; and 3) taking without just compensation. Plaintiffs seek a declaratory judgment, just compensation for the defendants’ alleged taking of their properties, and $1,000,000 in compensatory damages for each of the fifteen plaintiffs.

Various individual defendants and groups of defendants have filed five motions to dismiss. (Docs. 24-27, 32). Defendant Eric Zgodzinski has filed a motion seeking judgment on the pleadings. (Doc. 21).

For the reasons discussed below, I grant each of those motions.

Background

Plaintiffs’ complaint only mentions two Covid-related orders. Plaintiffs first challenge an order that they allege (without citation or attaching the order as an exhibit) was issued "[O]n or about March 20, 2020." (Doc. 1, pgID 14). Plaintiffs do not specify who issued that order. There are several orders that Amy Acton, the then-Director of the Ohio Department of Health (the "Health Director"), issued around that time to which plaintiffs could be referring.²

The effect of those orders was that plaintiffs had to close their dance studios for the duration of the Governor's declared Covid-related state of emergency (Doc. 20-1). This is because the orders did not designate dance studios as essential businesses, and all non-essential businesses had to cease operations. (Doc. 20-2).

Plaintiffs also mention (without citation or providing a copy) the Health Director's 2020 order that authorized reopening their facilities "so long as all safety standards [we]re met," specifically including social distancing, (id. , pgID 184). (Doc. 1, pgID 15).³

Nevertheless, plaintiffs purport to challenge "[c]ollectively, the numerous orders, rules, and regulations issued by the State of Ohio in response to COVID-19." (Doc. 1, pgID 16). They do so without even identifying those "numerous orders" or discussing their contents.

Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), the 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "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." Id. A complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted).

When considering a Rule 12(b)(6) motion, I must "construe the complaint in the light most favorable to the plaintiff." Inge v. Rock Fin. Corp. , 281 F.3d 613, 619 (6th Cir. 2002). A plaintiff, however, must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, supra , 550 U.S. at 555, 127 S.Ct. 1955.⁴

Because "[t]he same standard applies to a rule 12(c) motion [for judgment on the pleadings] as to a rule 12(b)(6) motion to dismiss for failure to state a claim for relief," Grindstaff v. Green , 133 F.3d 416, 421 (6th Cir. 1998), I will not distinguish those motions in my analysis. Applying this standard of review to plaintiffs’ complaint, I conclude for the reasons that follow: 1) the complaint fails to meet the requirements of Fed. R. Civ. P. 8 and the Iqbal/Twombly mandates; 2) plaintiffs’ complaint failed to demonstrate that they have standing to sue the defendants; 3) plaintiffs’ substantive claims fail to state cognizable causes of action; and 4) in any event the defendants are immune from being held liable for monetary damages.

Discussion

1. The Complaint Fails to Comply with Iqbal//Twombly

In light of the foregoing pleading principles, I must first determine whether the complaint states a claim under the standards set forth by Federal Rule of Civil Procedure 8 and in the Supreme Court's Iqbal and Twombly decisions. I conclude that it does not. Plaintiffs’ complaint is riddled with conclusory statements and is almost completely devoid of factual support. While Rule 8(a) directs plaintiffs to submit a "short and plain statement of the claim," that does not give them license to omit crucial supporting facts from the complaint.

In Iqbal , the Supreme Court highlighted the difference between factual assertions entitled to the assumption of truth and conclusory statements:

Two working principles underlie our decision in Twombly . First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. , at 555, 127 S. Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. , at 556, 127 S. Ct. 1955. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d at 157–158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not "show[n]"—"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

Iqbal, supra , 556 U.S. at 678-79, 129 S.Ct. 1937.

The Sixth Circuit further emphasized the importance of factual allegations, stating that "a plaintiff cannot overcome a Rule 12(b)(6) motion to dismiss simply by referring to conclusory allegations in the complaint that the defendant violated the law. Instead, the sufficiency of a complaint turns on its ‘factual content,’ requiring the plaintiff to plead enough ‘factual matter’ to raise a ‘plausible’ inference of wrongdoing." 16630 Southfield Ltd. P'ship v. Flagstar Bank, F.S.B. , 727 F.3d 502, 504 (6th Cir. 2013) (quoting Iqbal, supra , 556 U.S. at 678, 129 S.Ct. 1937 ).

A. Identification of Defendants’ Specific Actions

One glaring deficiency in the complaint is that plaintiffs do not attribute any actions to specific defendants. Instead, they lump the defendants together, making their allegations against "the Defendants" collectively. Even when plaintiffs discuss the March 2020 and May 2020 orders, they state that "Defendants" collectively were responsible for issuing them. As discussed infra in Section 2(B), the orders, which Director Acton alone issued, bely that statement.

Plaintiffs attempt to invoke joint liability against the defendants with the following statement: "Defendants have acted jointly and severally and with malice in violating the rights of the Plaintiffs and are listed here." (Doc. 1, pgID 10). However, this sweeping statement does not cure their failure to link individual defendants with specific actions because the law requires more.

Plaintiffs bring their claims pursuant to 42 U.S.C.A. § 1983. " ‘[T]o establish liability under section 1983, against an individual defendant, [the] plaintiff must plead and prove that the defendant was personally involved in the activity that forms the basis of the complaint.’ " Slusher v. Carson , 488 F. Supp. 2d 631, 638 (E.D. Mich. 2007) (quoting Eckford-El v. Toombs , 760 F. Supp. 1267, 1272 (W.D. Mich. 1991) ). "It is well-settled that to state a cognizable Section 1983 claim, the plaintiff must allege some personal involvement by [ ] each of the named defendants." Bennett v. Schroeder , 99 F. Appx. 707, 712-13 (6th Cir. 2004) (same); see also Lanman v. Hinson , 529 F.3d 673, 684 (6th Cir. 2008) ("This Court has consistently held that damage claims against government officials arising from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what each defenda...