Hartman v. Acton, Case No. 2:20-CV-1952

• Decision Date: 03 November 2020
• Docket Number: Case No. 2:20-CV-1952
• Citation: 499 F.Supp.3d 523
• Parties: Tanya Rutner HARTMAN, and Gilded Social, Plaintiffs, v. Amy ACTON, in her official capacity as Director of the Ohio Department of Health, Defendant.
• Court: U.S. District Court — Southern District of Ohio

499 F.Supp.3d 523

Tanya Rutner HARTMAN, and Gilded Social, Plaintiffs,

v.Amy ACTON, in her official capacity as Director of the Ohio Department of Health, Defendant.

Case No. 2:20-CV-1952

United States District Court, S.D. Ohio, Eastern Division.

Signed November 3, 2020

Maurice A. Thompson, Columbus, OH, Christopher P. Finney, Rebecca L. Heimlich, Finney Law Firm, LLC, Curt Carl Hartman, Cincinnati, OH, for Plaintiffs.

Katherine J. Bockbrader, Health and Human Services, Marion H. Little, John Wolcott Zeiger, Zeiger Tiges Little & Lindsmith LLP, William C. Greene, Ohio Attorney General's Office, Columbus, OH, for Defendant.

ORDER

ALGENON L. MARBLEY, CHIEF UNITED STATES DISTRICT JUDGE

This matter is before the Court on Defendant's Motion to Dismiss. (ECF No. 18). Plaintiffs have filed a response, opposing the motion to dismiss (ECF No. 20) and Defendant has filed a reply (ECF No. 22). For the reasons set forth below, this Court GRANTS Defendant's Motion to Dismiss.

I. BACKGROUND

This Court incorporates by reference the statement of facts set forth in its April 21, 2020 Order denying Plaintiffs’ Motion for a Temporary Restraining Order ("TRO"). (ECF No. 7). Since that Order, Director Acton's April 2, 2020 Stay at Home Order ("Stay at Home Order") at issue in the TRO proceedings has expired and Ms. Hartman has been permitted to resume her normal business operations. Nonetheless, Ms. Hartman, as owner and operator of bridal shop Gilded Social, has filed an amended complaint continuing to challenge the provisions of the April 2, 2020 Stay at Home Order and Director Acton's authority to promulgate such an order. (ECF No. 15). Ms. Hartman brings claims against Director Acton in her official and individual capacity for declaratory and injunctive relief and damages. (ECF No. 15). Defendant, Dr. Acton, has brought a Motion to Dismiss this amended complaint arguing that this Court lacks subject matter jurisdiction over Plaintiffs’ claims and that the complaint fails to state a viable claim for relief. (ECF No. 18). Plaintiffs have responded opposing this motion and Defendant has timely filed a reply. (ECF No. 20; No. 22). On June 11, 2020, Dr. Acton resigned as the Director of the Ohio Department of Public Health ("the Director").

II. STANDARD OF REVIEW

A. 12(b)(1)

When subject matter jurisdiction is challenged pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff has the burden of proving jurisdiction. Moir v. Greater Cleveland Reg'l Transit Auth. , 895 F.2d 266, 269 (6th Cir. 1990) (citing Rogers v. Stratton Industries, Inc. , 798 F.2d 913, 915 (6th Cir. 1986) ). Federal Rule of Civil Procedure 12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come in two varieties: (1) a facial attack on subject matter jurisdiction; and (2) a factual attack on subject matter jurisdiction. See Ohio Nat'l Life Ins. Co. v. United States , 922 F.2d 320, 325 (6th Cir. 1990) (identifying the two types of 12(b)(1) motions to dismiss). Facial attacks on subject matter jurisdiction "merely question the sufficiency of the pleading." Id. A facial attack on subject matter jurisdiction is reviewed under the same standard as a 12(b)(6) motion to dismiss. Id. In a factual attack on subject matter jurisdiction, a court "must ... weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist." Id. Here, Defendant challenges the sufficiency of the pleadings and does not contest the facts.

B. 12(b)(6)

This Court may dismiss a cause of action under 12(b)(6) for "failure to state a claim upon which relief can be granted." A 12(b)(6) motion "is a test of the plaintiff's cause of action as stated in the complaint, not a challenge to the plaintiff's factual allegations." Golden v. City of Columbus , 404 F.3d 950, 958-59 (6th Cir. 2005). The Court must construe the complaint in the light most favorable to the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield , 552 F.3d 430, 434 (6th Cir. 2008). This Court is not required, however, to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although liberal, Rule 12(b)(6) requires more than bare assertions of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted). Generally, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In short, a complaint's factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). It must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955.

III. ANALYSIS

In her motion to dismiss, Defendant argues that this Court lacks jurisdiction over Plaintiffs’ claims and the complaint fails to state a viable claim for relief. Specifically, Defendant makes the following arguments: (1) the Eleventh Amendment to the Constitution bars state law claims and claims for non-prospective declaratory and monetary relief against Dr. Acton in her official capacity; (2) Plaintiffs have no standing to bring claims on behalf of other businesses; (3) that Plaintiffs’ claims are moot and not ripe to the extent they relate to potential future orders that could be issued; (4) and that the amended complaint fails to state a valid claim for vagueness, impermissible delegation, violation of procedural due process, or violation of equal protection. (ECF No. 18).

Plaintiffs have filed a response clarifying that they are not: (1) seeking damages against Dr. Acton in her official capacity, nor requesting declaratory relief on the basis of her past conduct, nor challenging her conduct on the basis of state law; (2) Plaintiffs are not bringing their claims on behalf of a class; and (3) bringing claims for impermissible delegation pursuant to the U.S. Constitution, noting "the delegation authority to [sic] AMY ACTION under state law does not directly give rise to a claim under the federal constitution, see Motion to Dismiss, at 16-18." (ECF No. 20 at 1). Accordingly, to the extent these claims are raised in Plaintiffs’ amended complaint, they are hereby DISMISSED .

In their response, Plaintiffs oppose the remainder of Defendant's motion to dismiss, arguing: (A) that although Dr. Acton's Stay at Home Order has expired, this matter is not moot since she has voluntary ceased the allegedly illegal conduct and the capable of repetition and evading review exception to mootness applies; (B) their complaint states a valid claim that the Director's order was unconstitutionally vague; (C) their complaint states a valid claim that the Director's order violated their rights to procedural due process; and (D) Dr. Acton is not entitled to qualified immunity for the claims brought against her in her individual capacity. This Court will address each of these arguments in turn.

A. 12(b)(1) Lack of Subject Matter Jurisdiction - Mootness / Ripeness

On June 11, 2020, Dr. Acton resigned as the Director of the Ohio Department of Public Health. Although Dr. Acton is no longer serving as the Director of the Ohio Department of Public Health, the claims brought against her in her official capacity are not moot. Although it is true that state officials "literally are persons," suits against state officials in their official capacity are "no different from a suit against the State itself" since they are "a suit against the official's office." Will v. Michigan Dep't of State Police , 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Additionally, claims made against a public official in their official capacity do not terminate when the official leaves office; instead, the "officer's successor is automatically substituted as a party." See Fed. R. Civ. P. 25(d). Accordingly, the claims against Dr. Acton in her official capacity are construed for the purposes of this order as claims against the office of the Director of the Ohio Department of Public Health, currently occupied by Lance Himes. Hafer v. Melo , 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) ("Indeed, when officials sued in this capacity in federal court die or leave office, their successors automatically assume their roles in the litigation.").

Defendant argues that Plaintiffs’ amended complaint should be dismissed as moot because it relates to a Stay at Home order that is no longer in effect. (ECF No. 18 at 12). Defendant also argues that to the extent that Plaintiffs’ complaint addresses the potential impact of any future orders to be issued by Dr. Acton, those claims should be dismissed for lack of ripeness. Id. at 34. Plaintiffs argue that their claims are not moot since the alleged conduct was voluntarily ceased and the Director's order could be reinstated at any time. Plaintiffs add that even if considered moot, the capable of repetition yet evading review exception to mootness applies. (ECF No. 20 at 2).

Article III, § 2 of the United States Constitution vests federal courts with jurisdiction to address "actual cases and controversies." Coalition for Gov't Procurement v. Fed. Prison Indus., Inc. , 365 F.3d 435, 458 (6th Cir. 2004) (citing U.S. CONST. art III, § 2). Federal courts are prohibited from rendering decisions that "do not affect the rights of the litigants." Id. (citing Southwest Williamson County Cmty. Assoc. v. Slater , 243 F.3d 270, 276 (6th Cir. 2001) ). This is broadly known as justiciability doctrine and encompasses the concepts of mootness and ripeness. A case becomes moot "when the issues presented are no longer live or parties lack a legally cognizable interest in the outcome." See Cleveland Branch, N.A.A.C.P. v. City of Parma, OH, 263 F.3d 513, 530 (6th Cir. 2001) (quoting County of Los Angeles v. Davis, 440 U.S. 625,...