Dehlendorf v. City of Gahanna, Case No. 2:10-cv-623

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtMICHAEL H. WATSON, JUDGE
PartiesMichael Dehlendorf, Plaintiff, v. City of Gahanna, Ohio, et al., Defendants.
Docket NumberCase No. 2:10-cv-623
Decision Date28 March 2011

Michael Dehlendorf, Plaintiff,
City of Gahanna, Ohio, et al., Defendants.

Case No. 2:10-cv-623


Dated: March 28, 2011

Judge Michael H. Watson


This case concerns a police investigation concerning allegedly harassing e-mails and the resulting criminal trial. Plaintiff brings this action against Defendants under 42 U.S.C. § 1983, but also asserts several state law claims, including defamation, slander, and filing a false police report. Defendants David W. Fisher ("D. Fisher"), Beth Fisher ("B. Fisher"), and Kephart Fisher, LLC ("Kephart") (collectively "Defendants") move for judgment on the pleadings with respect to Plaintiff's claims of defamation, slander, and filing a false police report on the sole ground of absolute immunity. Mot. J. Pleadings, ECF No. 9. For the reasons that follow, the Court denies Defendants' Motion for Judgment on the Pleadings.


The Court accepts as true the well-pleaded facts set forth in the Complaint. Plaintiff resides in Franklin County, Ohio. In late 2007, Plaintiff became upset with B. Fisher and D. Fisher about a real estate matter and began sending numerous e-mails from his office in Gahanna to D. Fisher's office in Columbus and to B. Fisher. He

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continued to e-mail D. Fisher and B. Fisher until November 26, 2007, when members of the Gahanna Division of Police told Plaintiff to stop sending the e-mails.

Plaintiff relocated his office to Jefferson Township on January 31, 2008. In May 2008, he resumed sending e-mails to D. Fisher and B. Fisher. D. Fisher told the Gahanna Police Department that he had received e-mails from Plaintiff on November 26, 2008 and November 30, 2008. As a result of the report, the city of Gahanna arrested Plaintiff on December 1, 2008, and charged him with telecommunications harassment in violation Ohio Rev. Code § 2917.21. Defendants were subsequently given an order of protection against Plaintiff, and the dispute was published in a local newspaper article. Following a jury trial, the charges against Plaintiff for violating Ohio Rev. Code § 2917.21 were dismissed, but Plaintiff was required to post a $500 peace bond.


The standard of review for a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is the same as that for a motion for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d 274, 279 (6th Cir. 2009). A claim survives a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) if it "containfs] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." 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 of the complaint's allegations are true." Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 555-56 (2007) (internal citations omitted).

A court must also 'construe the complaint in the light most favorable to the plaintiff." Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). In doing so, however, plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; see also Iqbal, 129 S. Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."); Ass'n of Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). "[A] naked assertion ... gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility Twombly, 550 U.S. at 557. Thus, "something beyond the mere possibility of [relief] must be alleged, lest a plaintiff with a largely groundless claim be allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value." Id. at 557-58 (internal citations omitted).


Defendants raise one ground for dismissal of Plaintiff's claims of defamation and filing a false police report: absolute privilege bars any civil liability stemming from the filing of police reports, including the two allegedly false police reports which may have defamed and slandered Plaintiffs professional and personal reputation. Plaintiff argues that the claim cannot be dismissed because the Defendants' reports are shielded only by qualified immunity, and the errors in the Defendants' police reports were made with malice, which would defeat a qualified immunity defense.

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Absolute privilege confers civil immunity for making a false, defamatory statement even if it was made with actual malice, in bad faith, and with knowledge of its falsity. M.J. DiCorpo, Inc. v. Sweeney, 69 Ohio St. 3d 497, 505 (1994). In contrast, qualified immunity does not protect a person who makes a defamatory statement from civil liability if the statement is made with actual malice, in bad faith, or knowledge of its falsity. Id. Statements made in a "judicial proceeding" are protected by absolute immunity. Id. DiCorpo held that an affidavit, statement or other information submitted to a prosecuting attorney for the purpose of reporting an actual or possible crime is part of a judicial proceeding because it initiates the investigation process and possible prosecution. Id. at 506. The court reasoned that applying absolute privilege in that set of circumstances would "encourage the reporting of criminal activity by removing any threat of reprisal in the form of civil liability," which would "aid in the proper investigation of criminal activity and those responsible for the crime." Id. "The absolute privilege or 'immunity' for such statements in a judicial proceeding extends to every step of the proceeding, from beginning to end." Id. In addition to being part of a judicial proceeding, the statement must also bear some "reasonable relation to the activity reported," meaning that the statement "must tend to prove or disprove the point to be established, and have substantial importance or influence in producing the proper result." Bigelowv. Brumley, 138 Ohio St. 574, 591-92 (Ohio 1941).

Ohio appellate courts have broadly interpreted the absolute immunity set forth in DiCorpo and barred civil liability in a variety of claims and circumstances different from those presented in DiCorpo. See Ventura v. Cincinnati Enquirer, 246 F. Supp. 2d 876, 882 (S.D. Ohio 2003). But Ohio appellate courts have not consistently extended

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absolute immunity to statements made to law enforcement personnel. See Garrett v. Fisher Titus Hosp., 318 F. Supp. 2d 562, 578 n.1 (N.D. Ohio 2004) (noting apparent conflict in Ohio appellate courts). Defendants' claim of absolute immunity relies primarily on three decisions from Ohio's Tenth Appellate District: Haller v. Borror, No. 95APE06-16, 1995 WL 479424 (Ohio Ct. App. 10 Dist. Aug. 08, 1995); Fair v. Litel Communication, Inc., No. 97APE06-804, 1998 WL 107350 (Ohio Ct. App. 10 Dist. Mar. 12, 1998); and Lee v. City of Upper Arlington, No. 03AP-132, 2003 WL 23024437 (Ohio Ct. App. 10 Dist. Dec. 30, 2003).

The defendant in Haller contacted police because he believed the plaintiff was attempting to extort money from him. The police encouraged the defendant to collect evidence implicating the plaintiff, and he taped conversations between himself and the defendant. The plaintiffs resulting extortion conviction was overturned, and he later sued the defendant for malicious prosecution, arguing that the defendant presented false information during the investigation to assure the investigation moved forward and the prosecutor would bring charges against the plaintiff. Haller, 1995 WL 479424, at *2. The trial court held that the defendant could not be held civilly liable because his conduct was absolutely privileged as a matter of law based on Dicorpo. The court of appeals affirmed, stating:

The Ohio Supreme Court stated the following in the syllabus of DiCorpo: "An affidavit, statement or other information provided to a prosecuting attorney, reporting the actual or possible commission of a crime, is part of a judicial proceeding. The informant is entitled to an absolute privilege against civil liability for statements made which bear some reasonable relation to the activity reported."

Haller, 1995 WL 479424, at *2 (quoting DiCorpo, 69 Ohio St. 3d at 497). Id. at *8. The

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Court in Haller, however, was not asked to...

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