Shuttlesworth v. Housing Opportunities Made Equal

• Decision Date: 08 December 1994
• Docket Number: No. C-1-94-352.,C-1-94-352.
• Citation: 873 F. Supp. 1069
• Parties: Rev. Fred SHUTTLESWORTH, Plaintiff, v. HOUSING OPPORTUNITIES MADE EQUAL, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

873 F. Supp. 1069

Rev. Fred SHUTTLESWORTH, Plaintiff, v. HOUSING OPPORTUNITIES MADE EQUAL, et al., Defendants.

No. C-1-94-352.

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

December 8, 1994.

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Arthur Charles Church, Cincinnati, OH, for Fred L. Shuttlesworth.

Frederick Mason Morgan, Jr., Cincinnati, OH, for Housing Opportunities Made Equal of Greater Cincinnati Inc., Housing Assistance Legal Fund Inc., Karla Irvine.

Wilson G. Weisenfelder, Jr., Robert Frederic Brown, Rendigs Fry Kiely & Dennis, Cincinnati, OH, for Monica R. Bohlen, Michael J. Mooney.

Jan Martin Holtzman, Dept. of Justice, Cincinnati, OH, for Charles Jung.

ORDER

CARL B. RUBIN, District Judge.

This matter is before the Court upon three motions to dismiss filed on behalf of Defendants Monica R. Bohlen and Michael J. Mooney (Doc. 2); Housing Opportunities Made Equal, Inc. "HOME", Housing Assistance Legal Fund, Inc. "HALF" and Karla Irvine collectively, "the HOME Defendants" (Doc. 4); and Charles Jung (Doc. 5), as well as upon a motion by the HOME Defendants for sanctions pursuant to Fed.R.Civ.P. 11. (Doc. 7). In the alternative, Defendant Jung also moves for summary judgment as to the claims against him. (Doc. 5).

Defendants Bohlen and Mooney also request oral argument on their motion. (Doc. 2). As this Court is not required to, nor does it, routinely grant oral argument on motions to dismiss, such request hereby is denied. The Court thus renders this decision based upon the motions, memoranda and other supporting documentation of record.

Procedural History/The Parties' Claims

On May 9, 1994, Plaintiff filed a complaint in this Court, setting forth claims against the above-named movants and two other individuals, Patricia and Jonathan Patterson. (Doc. 1). Plaintiff alleges that all such Defendants conspired among themselves and with others to injure Plaintiffs reputation by falsely accusing him of sexually harassing female tenants of certain rental properties he owned. The complaint asserts federal claims under both the Racketeer Influenced and Corrupt Organizations Act "RICO", 18 U.S.C. § 1961, et seq., and 42 U.S.C. § 1983 (see Doc. 1, ¶¶ 18-27), as well as a state law claim that appeared to be for malicious prosecution. (Doc. 1, ¶¶ 28-35).

On July 8, 1994, Defendants Bohlen and Mooney, and Defendants HOME, HALF and Irvine, filed similar but separate motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Docs. 2, 4). On July 11, 1994, Defendant Charles Jung followed with his motion to dismiss, or alternatively, for summary judgment, echoing many of the same arguments. (Doc. 5). All argue that Plaintiff's complaint fails to state a claim upon which relief can be granted against them.

As to Plaintiff's RICO claim, Defendants separately and/or collectively argue that Plaintiff failed to adequately plead the existence of a RICO enterprise; failed to allege that certain individuals participated in the operation or management of any such enterprise; and failed to plead viable predicate acts or sufficient relationship and continuity, as is necessary in order to establish a pattern of racketeering activity. Specifically, they urge that Plaintiffs complaint fails to allege indictable fraud, bribery, wire fraud or mail fraud offenses. They also argue that the RICO claims are untimely.

With respect to Plaintiffs § 1983 claim, Defendants further contend that Plaintiff failed to identify any constitutionally protected right that was violated and failed to establish that Defendants acted under color of state law.

All Defendants likewise argue that Plaintiff's malicious prosecution claim is partially time barred, and otherwise must fail for lack of the requisite element of seizure of a person or property. In his memorandum opposing the motions to dismiss, Plaintiff suggests that his complaint also contains a viable state law claim for abuse of process. (See Doc. 10, p. 14). In replying, Defendants further claim that Plaintiff failed to raise a claim for abuse of process, and contend that such a claim would be both unsupportable and partially time barred.

Defendant Jung, however, also claims that Plaintiff cannot establish that he was responsible for instituting any civil action against Plaintiff — another requisite element of a malicious prosecution claim — and that Plaintiff's suit against Jung in his official capacity is in fact a suit against the United States, which is barred by sovereign immunity.

OPINION

Standard of Review on Motions to Dismiss

The federal rules permit a court to dismiss a complaint before trial for failure to state a claim upon which relief can be granted. Fed. R.Civ.P. 12(b)(6). In reviewing a Rule 12(b)(6) motion to dismiss, a court must take all of the plaintiff's allegations as true and must resolve all doubts in the plaintiff's favor. Craighead v. E.F. Hutton & Co., 899 F.2d 485, 489 (6th Cir.1990). The complaint should be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

On a motion to dismiss, "the issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The Court in Scheuer continued:

Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss ..., the allegations of the complaint should be construed favorably to the pleader.

Id.

Sufficiency of Plaintiff's RICO Claim

Plaintiff's complaint purports to set forth a claim under 18 U.S.C. § 1962(c), which provides in pertinent part as follows:

It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate ... commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity ...

In addition to its criminal application, the RICO statute allows persons injured by racketeering activity to maintain private actions. 18 U.S.C. § 1964(c).

To establish a violation under 18 U.S.C. § 1962(c), a civil plaintiff must prove "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985) (footnote omitted). A complaint advancing a § 1962(c) claim must include factual allegations supporting each element of the violation with reasonable specificity. Jennings v. Emry, 910 F.2d 1434, 1435 (7th Cir.1990).

The "conduct" prong recently has been defined to require that a particular defendant "must participate in the operation or management of the enterprise itself" in order for § 1962(c) liability to attach. Reves v. Ernst & Young, ___ U.S. ___, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993). As another court reasoned:

Simply because one provides goods or services that ultimately benefit the enterprise does not mean that one becomes liable under RICO as a result. There must be a nexus between the person and the conduct in the affairs of an enterprise.

University of Maryland v. Peat, Marwick, Main & Co., 996 F.2d 1534, 1539 (3d Cir. 1993).

"Enterprise" is defined within the RICO statute as "any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." 18 U.S.C. § 1961(4). No corporation can be "both the `enterprise' and the `person' conducting or participating in the affairs of that enterprise." Davis v. Mutual Life Ins. Co. of New York, 6 F.3d 367, 377 (6th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1298, 127 L.Ed.2d 650 (1994). The enterprise must be "a separate, ongoing" entity. Hofstetter v. Fletcher, 905 F.2d 897, 903 (6th Cir.1988). The definition encompasses both illegitimate enterprises and legitimate enterprises involved in racketeering operations. United States v. Qaoud, 777 F.2d 1105, 1115 (6th Cir.1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1499, 89 L.Ed.2d 899 (1986).

A "pattern," as that term is used in the RICO statute, requires at least two qualifying acts occurring within 10 years of one another. 18 U.S.C. § 1961(5). But "while two acts are necessary, they may not be sufficient." Sedima, 473 U.S. at 496, n. 14, 105 S.Ct. at 3285, n. 14. As the Court there further explained:

Indeed, in common parlance two of anything do not generally form a "pattern." The legislative history supports the view that two isolated acts of racketeering activity do not constitute a pattern ... "Continuity plus relationship ... combine to produce a pattern."

Id. (quoting S.Rep. No. 91-617, p. 158 (1969)).

Finally, "racketeering activity" consists of any one of a lengthy list of indictable state and federal offenses, including but not limited to mail fraud and wire fraud, as enumerated in 18 U.S.C. § 1961(1). Pursuant to Fed.R.Civ.P. 9(b), "in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Accordingly, allegations of fraud which are "merely bare assertions of legal conclusions" will not satisfy the requirements of a RICO claim. Condor America, Inc. v. American Power Development, Inc., 128 F.R.D. 229, 232 (S.D.Ohio 1989) (Rubin, J.).

Defendants generally aver that Plaintiff's allegations are insufficient to support the existence of any of the requisite RICO elements. Accordingly, the Court will address each separately.

A. Enterprise

All Defendants urge the Court to find that Plaintiff has failed to identify any entity that qualifies as an "enterprise" for purposes of the RICO statute. On that subject, Plaintiff...