Flood v. Reed, Case No.: 2:16-CV-778

• Decision Date: 16 March 2017
• Docket Number: Case No.: 2:16-CV-778
• Parties: FRANCIS FLOOD, Plaintiff, v. ROGER REED, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

FRANCIS FLOOD, Plaintiff, v. ROGER REED, et al., Defendants.

Case No.: 2:16-CV-778

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

March 16, 2017

JUDGE SMITH

Magistrate Judge Kemp

OPINION AND ORDER

This matter is before the Court upon the Motions for Judgment on the Pleadings and Motions to Dismiss of the various Defendants. First filed was the Motion for Judgment on the Pleadings (Doc. 7) of Defendants Teresa Bemiller, Thom Collier, Charles McConville, Roger Reed, John Thatcher, and Ray Withers (collectively, the "Knox Defendants"). Plaintiff replied in opposition (Doc. 18) and the Knox Defendants replied in support (Doc. 21). Also pending is Defendant ADR & Associates, LTD's ("ADR") Motion to Dismiss (Doc. 14). Plaintiff opposed ADR's Motion (Doc. 22) and ADR replied in support of its Motion (Doc. 24). Next is the Motion to Dismiss (Doc. 26) of Kathleen Botos, Isaac Robinson, Glenn Sanders, and Mike Sapp (collectively, the "OEPA Defendants"). Plaintiff again responded in opposition (Doc. 27). Next, Defendants Nate Overholt and Julie Miller filed a Motion for Judgment on the Pleadings (Doc. 31). Plaintiff opposed the Motion (Doc. 43) and Overholt and Miller replied in support (Doc. 45). Last among the pending dispositive motions is Michael Fulmer's Motion for Judgment on the Pleadings (Doc. 32). Plaintiff opposed Fulmer's Motion (Doc. 42) and Fulmer replied in support (Doc. 44).

Finally, Plaintiff has also filed two motions which are pending, a Motion to Disqualify Nicole Candela-Norman (Doc. 28) and a Motion to Prevent a Single Counsel from Representing Multiple Defendants (Doc. 29) (collectively, the "Motions to Disqualify"). The various Defendants opposed Plaintiff's motions. These matters are now ripe for review. For the following reasons, the Court GRANTS the Motions of the Defendants and DENIES Plaintiff's Motions to Disqualify.

I. BACKGROUND

This lawsuit arises out of a sewer system that was installed on Plaintiff's property in 2012 (Doc. 1, Compl. at 3). Plaintiff is an Ohio citizen residing in Howard, Ohio. (Id. at 1). The Defendants consist of the various government officials and private parties who worked on the sewer system on Flood's property and did not provide him the relief he wished to obtain. Three of the Defendants—Roger Reed, Thom Collier, and Teresa Bemiller—are Knox County Commissioners. Charles McConville is the Knox County Assistant Prosecutor and John C. Thatcher is a Knox County Municipal Court Judge. Kathleen Botos, Isaac Robinson, Mike Saap, and Glenn Sanders work for the Ohio Environmental Protection Agency ("OEPA"). Julie Miller is the Knox County Health Commissioner, Nate Overholt works for the Knox County Health Department, and Ray Withers is the Superintendent of Know County Water & Waste Water. Michael Fulmer is the owner of Elite Excavating and finally, Plaintiff alleges that ADR & Associates is a structural engineering firm working with and within Knox County.

The subject sewer system was installed by Elite Excavating, who allegedly "went broke" half way through the project. (Doc. 1, Compl. at 4). Plaintiff alleges that Knox County wanted the system's operation to draw revenue from the residents using it and therefore moved forward without inspections by the OEPA or the county. Plaintiff alleges there were numerous errors inthe installation including that Elite installed a sewage grinder too near his home, left sewage debris in a creek on his property, dug too close to his home and cracked his foundation, and left felled trees on the property. (Id.).

Plaintiff alleges that he received a cease and desist order to stop calling Julie Miller after attempting to contact her regarding the health hazards around his home. (Id. at 5). Plaintiff also alleges that the Attorney General refused to let him file a complaint against the Commissioners or Elite Excavating because those parties have immunity. (Id.). Plaintiff also alleges that attempts to receive help from the Inspector General of Ohio, the Ohio Auditor, and various other state and federal officials yielded no results. (Id.). However, he does not allege that he ever filed suit in any state or county court. In an additional claim, Plaintiff alleges that prosecutor McConville defamed Plaintiff by calling Plaintiff a liar during a television interview. (Id.). Last, Plaintiff alleges that Judge Thatcher—while acting as the County Prosecuting Attorney—committed fraud by allowing Elite Excavating to be paid despite having left damage on Plaintiff's property. (Id. at 5-6).

Plaintiff filed suit in this case alleging that the defendants conspired against him in violation of 18 U.S.C. § 241. Further, he generally alleges due process, defamation, and fraud claims. (Doc. 1-1, Civil Cover Sheet at 1). Plaintiff also makes claims that he was deprived of the "right of representation by local and state officials" and that he suffered from a violation of the state sunshine law. (Id. at 2)

II. STANDARDS OF REVIEW

Pending before the Court are both Motions to Dismiss and Motions for Judgment on the Pleadings. The standard of review for a motion for judgment on the pleadings under Rule 12(c)is the same as that used to address a motion to dismiss under Rule 12(b)(6). Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir. 2007).

Under the Federal Rules, any pleading that states a claim for relief must contain a "short and plain statement of the claim" showing that the pleader is entitled to such relief. Fed. R. Civ. P. 8(a)(2). To meet this standard, a party must allege sufficient facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim will be considered "plausible on its face" when a plaintiff sets forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Rule 12(b)(6) allows parties to challenge the sufficiency of a complaint under the foregoing standards. In considering whether a complaint fails to state a claim upon which relief can be granted, the Court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Ohio Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, "the tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts sufficient to "provide a plausible basis for the claims in the complaint"; a recitation of facts intimating the "mere possibility of misconduct" will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of Mich., Inc., 491 F. App'x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.

III. DISCUSSION

Plaintiff, proceeding pro se, brings claims based on alleged violations of 18 U.S.C. § 241, his due process, and alleged violations of his right of representation. He also brings state law claims for fraud, conspiracy, violation of the state sunshine law, and defamation. Defendants moved for dismissal or judgment on all of Plaintiff's claims against them. Plaintiff filed the Motions to Disqualify which the Court will address first before moving to the merits of Defendants' arguments.

A. Motion to Disqualify

Plaintiff moved to disqualify the OEPA Defendants' counsel, Nicole Candelora-Norman of the Office of the Ohio Attorney General, alleging that a conflict exists for Counsel because she enforces compliance with the rules of the OEPA and the OEPA Defendants allegedly failed to comply with the OEPA rules. Plaintiff also moved to prevent any single counsel or firm from representing multiple defendants based on the allegations in the Complaint.

On prior occasion, this Court has provided guidance regarding the manner in which motions to disqualify should be addressed. Specifically, this Court has provided:

A motion to disqualify is the proper method for a party-litigant to bring an issue of conflict of interest or the breach of an ethical duty to the court's attention. Musicus v. Westinghouse Elec. Corp., 621 F.2d 742, 744 (5th Cir. 1980). Confronted with such a motion, courts must be sensitive to the competing public interests of requiring professional conduct by an attorney and of permitting a party to retain the counsel of his choice. Kitchen v. Aristech Chem., 769 F. Supp. 254, 257 (S.D. Ohio 1991)[(Weber J.)]. In order to resolve these competing interests, the courts must balance the interests of the public in the proper safeguarding of the judicial process together with the interests of each party to the litigation. General Mill Supply Co. v. SCA Servs., Inc., 697 F.2d 704, 711 (6th Cir. 1982).

The power to disqualify an attorney from a case is "incidental to all courts, and is necessary for the preservation of decorum, and for the respectability of the profession." Kitchen, 769 F. Supp. at 256 (quoting Ex Parte Burr, 9 Wheat. 529, 22 U.S. 529, 531 (1824)). However, "the ability to deny one's opponent the services of his chosen counsel is a potent weapon." Manning v. Waring, Cox,James, Sklar & Allen, 849 F.2d 222, 224 (6th Cir. 1988). Motions for attorney disqualification should be viewed with extreme caution for they can be misused as techniques of harassment. Freeman v. Chi. Musical Instrument Co., 689 F.2d 715, 722 (7th Cir. 1982).

Big Idea Co. v. Parent Care Res., LLC, No. 11-CV-1148, 2012 WL 4057216, 5-6 (S.D. Ohio Sept. 14, 2012) (King, M.J.) (citing Hamrick v. Union Twp., 81 F. Supp. 2d 876, 878 (S.D. Ohio 2000) (Spiegel, J.)).

In this Circuit, "the United States Court of Appeals for the Sixth Circuit now looks 'to the codified Rules of Professional Conduct...