Ortiz v. Holmes

• Citation: 157 F.Supp.3d 692
• Decision Date: 18 January 2016
• Docket Number: CASE NO. 4:15cv1085
• Parties: Rayvenn D. Ortiz, Plaintiff, v. Sherod D. Holmes, Jr., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

157 F.Supp.3d 692

Rayvenn D. Ortiz, Plaintiff,

v.Sherod D. Holmes, Jr., et al., Defendants.

CASE NO. 4:15cv1085

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

Signed January 18, 2016

David J. Betras, Justin A. Markota, Betras, Maruca, Kopp & Harshman, Canfield, OH, for Plaintiff.

Todd M. Raskin, Cara M. Wright, Mazanec, Raskin & Ryder, Cleveland, OH, David M. Smith, Mazanec, Raskin & Ryder, Solon, OH, for Defendants.

MEMORANDUM OPINION AND ORDER

HONORABLE SARA LIOI

, UNITED STATES DISTRICT JUDGE

Before the Court is the motion of defendants Dawn DiBenardi (“DiBenardi”) and Mahoning County Operators of the Mahoning County Juvenile Justice Center (“MCOJJC”) (collectively “moving defendants”) for partial judgment on the pleadings, pursuant to Fed. R. Civ. P. 12(c)

(Doc. No. 10 [“Mot.”] ). Plaintiff Rayvenn Ortiz (“plaintiff” or “Ortiz”) opposes the motion (Doc. No. 13 [“Opp'n”] ), and moving defendants have filed a reply (Doc. No. 14 [“Reply”] ). For the reasons that follow, the motion is converted to a Rule 12(b)(6) motion for partial dismissal and is granted.

I. Background

The background facts set forth herein are either undisputed or taken from plaintiff's First Amended Complaint (“FAC”). (Doc. No. 6.) On June 5, 2013, plaintiff, then 15 years old, was adjudicated a delinquent child by the Mahoning County Court of Common Pleas—Juvenile Court Division, and was placed on probation. (FAC ¶¶ 5, 10-11.) DiBenardi, a probation officer employed by the Mahoning County Juvenile Court (“Juvenile Court”), was assigned to plaintiff's case.¹ (Id . ¶¶ 7, 12.)

At all times relevant to the present dispute, defendant Sherod Holmes, Jr. (“Holmes”) was also employed by the Juvenile Court as a probation officer. (Id . ¶ 6.) It is alleged that Holmes used his position with the Juvenile Court to obtain confidential information about plaintiff that he used to “make contact with [plaintiff] in social settings.” (Id . ¶¶ 13-14.) “After making initial contact with” Ortiz, Holmes “deceived [Ortiz] on his age and position as a probation officer in order to engage in a sexual relationship with” her. (Id . ¶ 15.)

Upon enrolling for classes at Mahoning Valley High School, plaintiff “learned the true identity of” Holmes and that “he was a probation officer with the Mahoning County Juvenile Justice Center.” (Id . ¶ 17.) Thereafter, Holmes frequented the high school, removed plaintiff from classes, and “transported her using a Mahoning County vehicle to engage in sexual relations at his personal residence.” (Id . ¶¶ 18-20.) Plaintiff alleges that DiBenardi knew of Holmes's illicit sexual relationship with plaintiff, failed to report it to the proper authorities, and permitted Holmes to use her county vehicle to facilitate Holmes's sexual misconduct with plaintiff. (Id . ¶¶ 21-23.)

On March 12, 2013, Holmes was found guilty by the Mahoning County Court of Common Pleas of two counts of gross sexual imposition, in violation of Ohio Rev. Code § 2907.05(A)(1)(c)(1)

, a fourth degree felony, and two counts of importuning, in violation of Ohio Rev. Code § 2907.07(B)(1)(f)(3), a fifth degree felony. (Id . ¶ 25.) He was sentenced to a term of imprisonment of two years and was required to register as a sex offender. (Id . ¶ 26.)

On May 29, 2015, plaintiff filed the present action against Holmes, DiBenardi, the Mahoning County Juvenile Justice Center (“Justice Center”), and various John Does. (Doc. No. 1 (Complaint [“Compl.”] ).) Brought under the umbrella of 42 U.S.C. § 1983

, and relying on asserted violations of the Eighth Amendment, the original complaint raised claims against Holmes for the sexual assaults, against DiBenardi for failing to protect Ortiz from the assaults, and against the Justice Center for failing to monitor, supervise, and train Holmes. The filing of the initial complaint was immediately followed by a motion to dismiss brought by DiBenardi and the Justice Center. (Doc. No. 4 (Motion to Dismiss [“MTD”] ).) The motion challenged the applicability of the Eighth Amendment to the claims raised in the complaint, and the plausibility of a constitutional claim against DiBenardi for failure to protect Ortiz. The motion also raised several immunity arguments, claiming that the various defendants were entitled to quasi-judicial, qualified, and/or sovereign immunity.

In lieu of filing an opposition to the motion to dismiss, Ortiz filed the FAC against defendants Holmes, DiBenardi, MCOJJC, and the John Doe defendants, with the individual defendants sued in their official and individual capacities. (FAC ¶¶ 6-8.) It is unclear from the FAC whether MCOJJC represents the previously sued Justice Center, the Juvenile Court, or Mahoning County, itself. What is clear is that the claims are no longer dependent on the Eighth Amendment. Instead, plaintiff's § 1983

civil rights claims are now couched in terms of Fourteenth Amendment violations, and the factual allegations supporting the claims appear to have been fleshed out in greater detail. Notwithstanding these revisions, the claims in the FAC still retain the essence of the constitutional claims raised in the initial pleadings.

The moving defendants acknowledge that the FAC cured certain deficiencies identified in the previously filed motion to dismiss but insist that it did not cure all of them. (Reply at 113.) Carrying over from the motion to dismiss, the moving defendants argue that DiBenardi and Holmes are entitled to sovereign immunity to the extent they are sued in their official capacities as employees of the Juvenile Court. They also argue that Mahoning County, to the extent it has been sued in this action, is not sui juris and must be dismissed.

II. Standard of Review

A. Conversion of Rule 12(c)

Motion to a Rule 12(b)(6) Motion

Plaintiff suggests that the present Rule 12(c)

motion is premature because not all of the defendants have filed an answer. Rule l2(c) provides that “[a]fter the pleadings are closed”—but early enough not to delay trial—a party may move for judgment on the pleadings. Fed. R. Civ. P. 12(c). Relying on cases that provide that pleadings are not “closed” until all of the defendants have filed answers or otherwise responded to the complaint, plaintiff argues that the pleadings remain open because Holmes has not yet filed an answer or moved for summary judgment. (Opp'n at 102 (citing, among authority, Nationwide Children's Hosp., Inc. v. D.W. Dickey & Son, Inc. Employee Health & Welfare Plan , No. 2:08–cv–1140, 2009 WL 5247486 (S.D.Ohio Dec. 31, 2009) ).)

The Sixth Circuit has not directly addressed the issue of whether, when there are multiple defendants, a motion for judgment on the pleadings may be filed before all the defendants have answered the complaint so long as the moving defendants have answered. See Dunn – Mason v. JP Morgan Chase Bank Nat'l Ass'n , No. 11–cv–13419, 2013 WL 4084676, at *4 (E.D.Mich. Aug. 13, 2013)

. This Court, however, has recently had occasion to consider how a court should proceed under circumstances similar to those presented in this case.

In Prade v. City of Akron , No. 5:14CV188, 2015 WL 2169975 (N.D.Ohio May 8, 2015)

, this Court held that a Rule 12(c) motion that was prematurely filed before all defendants had answered could be converted to a Rule 12(b)(6) motion provided the issues raised in the motion were sufficiently raised in the moving defendant's answer as affirmative defenses. Prade , 2015 WL 2169975, at *2. In arriving at this conclusion, the Court relied on another recent decision out of the Western District of Michigan. In Gillespie v. City of Battle Creek , 100 F.Supp.3d 623, 628 (W.D.Mich.2015), the court observed with favor the practice of district courts within the Sixth Circuit of permitting post-answer Rule 12(b)(6) motions, as well as the practice outside the Sixth Circuit of construing premature Rule 12(c) motions as Rule 12(b)(6) motions. Gillespie , 100 F.Supp.3d at 628 (citing, among authority, Horen v. Bd. of Educ. of Toledo City Sch. Dist. , 594 F.Supp.2d 833, 840–41 (N.D.Ohio 2009) (noting that district courts have the discretion to construe a “pre-answer Rule 12(c) motion as a motion to dismiss for failure to state a claim under Rule 12(b)(6) ”)). Finding that the issues raised in the premature Rule 12(c) motion had been raised in the answer, and further finding that the plaintiff could point to no prejudice, the court determined that converting the motion to one under Rule 12(b)(6) was appropriate. Prade , 2015 WL 2169975, at *2.

The focal point of the present motion is the application of the Eleventh Amendment as a bar to certain of the asserted claims. This very issue was raised by the moving defendants in their answer as an affirmative defense. (Doc. No. 9 (Answer of DiBenardi and MCOJJC to First Amended Complaint [“Ans. FAC”] ) ¶ 41.) The moving defendants also argue that Mahoning County, to the extent it has been sued, is not a proper defendant to these proceedings. In their answer, these same defendants denied the lynchpin allegation lodged against Mahoning County, and raised as an affirmative defense the argument that the complaint fails to state a claim against one or more of the defendants. (Id . ¶¶ 6, 40.) While this second issue represents a closer call, the Court finds that both issues raised in the moving defendants' Rule 12(c)

motion were previously raised in their answer to the FAC.

Additionally, the Court notes that Holmes has failed to file an answer, despite being timely served with the summons and complaint, and that the time to file such an answer has passed. It appears, therefore, that Holmes is in default. Under these circumstances, withholding a ruling on threshold matters, when they have been fully briefed by the parties that are actively participating in this case, would accomplish nothing more than unnecessarily delaying this action. The fact that plaintiff has had an opportunity to fully brief these issues also demonstrates that plaintiff would not be prejudiced by immediate consideration of...