Sollenberger v. Sollenberger

• Decision Date: 25 March 2016
• Docket Number: Case No.: 3:15-CV-00213
• Citation: 173 F.Supp.3d 608
• Parties: Michael J. Sollenberger, Plaintiff, v. Jennifer A. Sollenberger, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

173 F.Supp.3d 608

Michael J. Sollenberger, Plaintiff,

v.Jennifer A. Sollenberger, et al., Defendants.

Case No.: 3:15-CV-00213

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

Signed March 25, 2016

John David Smith, John D. Smith Co. LPA, Andrew P. Meier, Springboro, OH, for Plaintiff.

Jennifer A. Sollenberger, Dayton, OH, pro se.

Christina Michele Flanagan, Bieser Greer & Landis LLP, Jade K. Smarda, Jeffrey S. Sharkey, Charles Joseph Faruki, Faruki Ireland & Cox PLL, Dayton, OH, Curtis G. Moore, Fisher & Phillips, LLP, Columbus, OH, for Defendants.

DECISION AND ENTRY GRANTING DEFENDANT PLUMMER AND SHERIFF DEFENDANTS' MOTION TO DISMISS(DOC. 13), GRANTING DEFENDANT SOLLENBERGER'S MOTION TO DISMISS(DOC. 2-1, at PageID# 126–27), GRANTING DEFENDANT ESTRIDGE'S MOTIONS TO DISMISS(DOC. 17), AND TERMINATING CASE.

Thomas M. Rose, Judge, United States District Court

PlaintiffMichael J. Sollenberger(“Plaintiff Sollenberger”) filed suit against Jennifer A. Sollenberger(“Defendant Sollenberger”) and Dannelle Estridge(“Defendant Estridge”)¹ , as well as Sheriff Phil Plummer(“Defendant Plummer”), Sergeant David Parin(“Defendant Parin”), Detective Bryan Cavender(“Defendant Cavender”), and Detective Tony Hutson(“Defendant Hutson”), alleging deprivation of his constitutional rights under 42 U.S.C. § 1983 and various Ohio common law tort claims.The Court has original jurisdiction over Plaintiff Sollenberger's federal claims pursuant to 28 U.S.C. § 1343(a)(3), and supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367(a).

Pending before the Court is Defendant Plummer and Sheriff Defendants'²Motion to Dismiss(Doc. 13), brought pursuant to Fed. R. Civ. P. 12(b)(6), Defendant Estridge's Motion to Dismiss(Doc. 17), brought pursuant to Fed. R. Civ. P. 8, 12(c), and Defendant Sollenberger's Motion to Dismiss(Doc. 2-1, at PageID# 126–27.).These Motions are now fully briefed and ripe for decision.A relevant factual background will first be set forth, followed by the applicable legal standard and analysis of the motions to dismiss.

I.FACTUAL AND PROCEDURAL HISTORY

In the context of a motion to dismiss, the Court must accept as true all of the factual allegations contained in the complaint.In the context of a motion for judgment on the pleadings, the Court may also consider court decisions and other public records.Plaintiff's Complaint includes the following factual allegations:

Plaintiff Sollenberger is a resident of Montgomery County, Ohio, and was formerly employed by the Montgomery County Sheriff's Office in Dayton, Ohio.(Doc. 2-1, at PageID# 88–89.)Plaintiff Sollenberger and Defendant Sollenberger are currently married, but in the process of finalizing divorce proceedings in the Court of Common Pleas of Montgomery County, Ohio.(Id. , at PageID# 89.)Plaintiff Sollenberger and Defendant Sollenberger were physically separated during the divorce proceedings.(Id. )

On or about April or May 2014, Defendant Sollenberger noticed their son—who was staying at her residence for the week—looking through her bedroom dresser drawers.³(Doc. 11-2, at 18.)Sollenbergers' son was looking for one of Defendant Sollenberger's old cell phones, which was in Defendant Sollenberger's possession, so that the son could use it.(Id.;Doc. 2-1, at PageID# 89.)At this point, Defendant Sollenberger had been in possession of at least two old cell phones “for an extended and continuous period of time[,]” as they had been left at her residence since Plaintiff Sollenberger moved out.⁴(Doc. 2-1, at PageID# 90;Doc. 8, at 9, 31.)The cell phone in question was one of Plaintiff Sollenberger's old cell phones, it was located in Defendant Sollenberger's bedroom dresser drawers, and it was not password protected.(Doc. 11-2, at 18;Doc. 8, at 9.)

Following a discussion with friends, Defendant Sollenberger suspected Plaintiff Sollenberger's old cell phone might contain certain information regarding Plaintiff Sollenberger.(Doc. 2-1, at PageID# 89.)In May 2014, Defendant Sollenberger gave possession of Plaintiff Sollenberger's old cell phone to Defendant Estridge, who accessed and extracted digital information from the cell phone.(Id. )The extracted information, included, but was not limited to, text messages between Plaintiff Sollenberger and his co-workers, pictures, and other deleted, digital information.(Id. )Defendant Estridge used a computer program to access and extract this information; storing the information on the hard drive of her personal computer.(Id. )Defendants Sollenberger and Estridge reviewed the information.(Id. )

In August 2014, Defendant Sollenberger sent some, but not all, of the information stored by Defendant Estridge to the National Association for the Advancement of Colored People(“NAACP”).(Id. )In December 2014, a representative from the NAACP provided the Montgomery County Sheriff's Office with 105-copied pages of text messages.(Id. )Upon review of these text messages, the Sheriff's Office initiated an administrative investigation into Plaintiff Sollenberger and other Sheriff's Office employees.(Id. )The pages contained statements by the Plaintiff that were derogatory and expressed a desire to harm minority members of the community.⁵(Doc. 13-2, at PageID# 358–406;Doc. 13-3, at PageID# 407–63.)These statements include, but are not limited to, the following:

1.“I'll stab a coon.”(Doc. 13-2, at PageID# 457.)

2.“BTW the niggers are trying to take over Boston's.”(Id. )

3.“I hate niggers.That is all.”(Doc. 13-3, at PageID# 458.)

4.“Just because a nigger scammed the election and is pres.It does not give the G-damn right to shop at DLM.”(Id. , at PageID# 453.)

5.“Thank you for stepping up and wanting to kill Muslim sand niggers when no one else would.”(Doc. 13-2, at PageID# 367.)

6.“He's a half[-]breed.It's not his fault is [sic] mom was a mud shark communist whore.”(Id. , at PageID# 375.)

7.“[H]ope he was screaming as he died and his negro friends were freaking out.”(Id. , at PageID# 387.)

8.“Watching history channel on MLK.Showing old films of restaurants in the south.It would have been fun to beat up coloreds cause [sic]they came into your restaurant.”(Id. , at PageID# 391.)

9.“I dislike coloreds.”(Id. , at PageID# 396.)

10.“Did you see the niggers that made the news in Texas because they refused to pay the gratuity on a party of ten [?]”(Doc. 13-3, at PageID# 412.)

11.“U [sic] ever see that nigger reporting for Fox 45?The only thing he's missing is a blunt and a dew rag.”(Id. , at PageID# 432.)

On December 16, 2014, Defendant Sollenberger met with an employee of the Sheriff's Office to discuss how she came into possession of the information extracted from Plaintiff Sollenberger's old cell phone.(Doc. 2-1, at PageID # 89.)At this point, Defendant Sollenberger provided one of Plaintiff Sollenberger's cell phones to the employee, and Defendant Hutson used the Sheriff's Office software for forensic imaging, and then, returned the cell phone to Defendant Sollenberger.(Id. , at PageID# 90.)The information provided to the Sheriff's Office by the NAACP was not contained on this cell phone.(Id. )

On January 13, 2015, Defendant Estridge met with a Sheriff's Office employee to copy files from her personal computer onto a Sheriff's Office hard drive, but this task was unsuccessful.(Id. )Three days later, Defendant Estridge returned to the Sheriff's Office and transferred files from her personal computer to a flash drive as well as to a cell phone provided by the Sheriff's Office.(Id. )On January 20, 2015, Defendants Sollenberger and Estridge returned for a final time, providing Plaintiff Sollenberger's old cell phone that originally contained the digital information in question.(Id. )Defendant Hutson imaged the phone using the Sheriff's Office software, and employees conducted an examination of the information obtained therein.(Id. )The extracted digital information was determined to be “similar to or the same as the digital information [Defendants Sollenberger and Estridge] were able to extract,” and the Sheriff's Office used the obtained information for the purposes of their investigation.(Id. )

The Sheriff's Office determined that Plaintiff Sollenberger violated the Sheriff's Office Professional Conduct Rules.(Id. )On December 1, 2014, Plaintiff Sollenberger was placed on administrative leave, and ultimately, terminated on February 6, 2015.(Id. )

Plaintiff Sollenberger filed suit on May 15, 2015, in the Court of Common Pleas of Montgomery County, Ohio, in which he alleged state law claims and violations of his federal constitutional rights and sought recovery under 42 U.S.C. § 1983.(Doc. 2-1, at PageID# 87–95.)Pursuant to 28 U.S.C. § 1441, Defendants removed the case to this Court.(Doc. 2, at PageID# 76–78;Doc. 2-1, at PageID# 79–156;Doc. 2-2, at PageID# 157.)

Plaintiff Sollenberger's Complaint presents six claims.(Doc. 2-1, at PageID # 87–95.)The first three and sixth causes of action allege claims under Ohio law, namely: invasion of privacy against all Defendants(First Claim); asserted civil claim for uncharged criminal act pursuant to O.R.C. § 2307.60 against all Defendants(Second Claim); tortious interference with an employment relationship against Defendants Sollenberger and Estridge (Third Claim); and civil conspiracy against all Defendants(Sixth Claim).(Id. , at PageID# 90–92, 94)Plaintiff Sollenberger's remaining claims arise under 42 U.S.C. § 1983 : a claim for unlawful search and seizure against Sheriff Defendants(Fourth Claim); and a claim against Defendant Plummer, in his official capacity, for failure to train Sheriff Defendants(Fifth Claim).(Id. , at PageID# 92–94.)

Defendant Plummer and Sheriff Defendants filed a Motion to Dismiss⁶ on July 24, 2015, arguing that Plaintiff Sollenberger failed to establish his state and federal claims asserted against them, as well as that they are entitled to the protections of qualified...