NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0491n.06

No. 12-3657

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DONNITA CARMICHAEL, )

)

Plaintiff-Appellant, )

)

v. ) ON APPEAL FROM THE UNITED

) STATES DISTRICT COURT FOR THE

) NORTHERN DISTRICT OF OHIO

CITY OF CLEVELAND, ET AL., )

)

Defendants-Appellees. )

Before: BOGGS and MOORE, Circuit Judges; and BARRETT, District Judge.

*

BARRETT, District Judge. This case arises out of the murder of Tonia Carmichael by 

Anthony Sowell. Tonia Carmichael was one of eleven African-American women found dead in 

Sowell’s home in Cleveland, Ohio. Plaintiff, as an individual and administratrix of Carmichael’s 

estate, brings federal claims under 42 U.S.C. §§1981 and 1983, as well as state-law claims of 

negligence and wrongful death. The district court granted Defendants’ Rule 12 motions to 

dismiss and for judgment on the pleadings, and dismissed all claims. We AFFIRM the 

dismissal of the claims.

 

*The Honorable Michael R. Barrett, United States District Judge for the Southern District 

of Ohio, sitting by designation.
No. 12-3657, Carmichael v. City of Cleveland, et. al.

2

I

A

The factual history which follows is based solely on the allegations in the complaint. On 

November 10, 2008, Tonia Carmichael disappeared. Tonia was a resident of the City of 

Warrensville Heights. After 48 hours, Tonia’s family attempted to file a missing-persons report 

with the Warrensville Heights Police. An officer refused to take the report, and told the family 

that Tonia would show up “after she finishes smoking crack.”

Because Tonia was last seen in Cleveland, Tonia’s family attempted to file a missingpersons report with the Fourth District of the Cleveland Police Department. Officer Martinez 

refused to take the report because Tonia was not a resident of Cleveland.

The family began its own search for Tonia, and found her dark-blue Chevy S-10 pickup 

truck in Cleveland. The family returned to the Cleveland Police Department, but Officer 

Martinez still refused to take a missing-persons report.

After Tonia had been missing for three weeks, the Warrensville Heights Police took a 

missing-persons report.

Anthony Sowell lived at 12205 Imperial Street in Cleveland, which is just a few blocks 

from where Tonia’s family discovered her pickup truck. In 1990, Sowell pleaded guilty to two 

counts of attempted rape. While Sowell requested that he be treated for his violent sexual 

behavior as part of his sentence, the Ohio Department of Rehabilitation and Corrections 

(“ODRC”) failed to provide him with treatment. Sowell was released from prison in 2005. 

Sowell never registered as a sex offender, and was not monitored by the Cuyahoga County 

Sheriff’s Department.
No. 12-3657, Carmichael v. City of Cleveland, et. al.

3

On December 8, 2008, the Cleveland police arrested Sowell after a bleeding woman ran 

up to a police car and told the officers that Sowell tried to punch her, choke her and rip off her

clothes. The incident was assigned to Cleveland’s Sex Crime Unit and investigated by Detective 

Georgia Hussein, Detective Kristin Rayburn, Lieutenant Michael Baumiller and Sergeant 

Antoinette McMahon (“the Cleveland Police Defendants”). The officers spoke to witnesses on 

Imperial Avenue and met with the victim, who gave a written statement and signed medical 

releases to allow the officers to get the records of her injuries. The officers took photographs of 

Sowell, which show scrapes and abrasions on his left shoulder and both legs. The officers also

obtained a written statement from Sowell.

On December 10, 2008, the officers met with Cleveland Assistant Prosecutor Lorraine

Coyne. The officers told Coyne that the victim had no visible signs of injuries. The officers 

failed to tell Coyne about Sowell’s criminal history or sex-offender status. Coyne decided to 

release Sowell. According to Plaintiff, Cleveland employs a “straight release and indict later” 

policy because all criminal suspects must usually be charged within 24 to 48 hours, but resources 

are scarce. Plaintiff explains that the theory behind the policy is that if more information is 

obtained later, the case will be presented to the grand jury for a formal indictment.

Almost a year later, on October 20, 2009, a naked woman fell from a window of Sowell’s 

home on Imperial Avenue. After obtaining a warrant, the police searched Sowell’s house on 

October 28, 2009. The officers eventually found eleven bodies of African-American women. 

The bodies were hidden in crawl spaces, buried under dirt floors and buried in the back yard. 

Neighbors had complained about the smell of rotting flesh since 2006. A sausage company 

located next door to Sowell’s house reported to authorities that Sowell was regularly placing 
No. 12-3657, Carmichael v. City of Cleveland, et. al.

4

filled plastic bags wrapped with duct tape in their dumpster. Tonia’s body was discovered on 

November 5, 2009.

In her complaint, Plaintiff sets forth six claims, albeit in a somewhat confusing manner. 

The third and sixth claims are not at issue on appeal.1 The first and second claims are brought 

pursuant to 42 U.S.C. §§ 1981 and 1983 and name only the City of Warrensville Heights and the 

City of Cleveland. Plaintiff claims racial and national-origin discrimination based on the 

deliberate refusal to take a missing person report and promptly investigate Tonia’s 

disappearance; and not promptly “investigating claims of missing African-Americans, while 

making a prompt investigations [sic] for white or Asian individuals, despite having official 

policies and procedures to investigate unusual or unaccountable absences.”

The fourth claim is for “Negligence/Wrongful Death” and is brought against “defendants 

enumerated one (1) through sixteen (16) in the caption.” The defendants include the City of 

Cleveland;2the City of Warrensville Heights; the Cuyahoga County Board of Commissioners; 

Gerald T. McFaul, the Cuyahoga County Sheriff;3the Cuyahoga County Sheriff’s Department; 

 

1

The third claim is a claim for wrongful death under Ohio law against Segernia and 

Anthony Sowell. Because these defendants did not respond to the complaint, the district court 

dismissed these claims without prejudice. Plaintiff has not appealed their dismissal. In the sixth 

claim, Plaintiff seeks injunctive relief in the form of counseling and other assistance for Tonia’s 

survivors.

2

In her complaint, Plaintiff also named the City of Cleveland Health Department and 

Martin Flask, who is Cleveland’s Public Safety Director. However, Plaintiff has not appealed 

the dismissal of these claims.

3

Plaintiff named McFaul in her complaint, but never served McFaul with the complaint. 

According to a docket entry by the district court, Plaintiff voluntarily dismissed McFaul during a 

status conference. In its order granting Defendants’ Rule 12 motions, the district court dismissed 

the claims against McFaul pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff included 
No. 12-3657, Carmichael v. City of Cleveland, et. al.

5

ODRC;

4 Martin Flask, Cleveland’s Public Safety Director; the City of Cleveland Health 

Department; Segernia Sowell; Anthony Sowell; Detective McGlibra, Lieutenant Jelenick, 

Stephanie Prince and Sergeant Martinez (“the Warrensville Heights Police Defendants”); 

Georgia Hussein and Kristin Rayburn, who are two of the four Cleveland Police Defendants. 

Excluded from the fourth claim are Lieutenant Michael Baumiller and Antoinette McMahon, 

who are the two remaining Cleveland Police Defendants, and Lorraine Coyne,5 who is an 

assistant prosecutor for the City of Cleveland.

Plaintiff’s claim against these Defendants is based upon the failure “to prevent the actions 

of defendant Anthony Sowell, by allowing Anthony Sowell to be released from confinement 

without rehabilitative treatment” and “by being generally negligent.” Plaintiff also claims that 

the Sheriff failed to provide notice to neighbors of a Tier III sex offender’s residence as required 

by Ohio Revised Code § 2950.11, as amended by the Adam Walsh Act.

The fifth claim is for “Negligence/Wrongful Death” and is brought against all 

Defendants, although the allegations only involve three of the defendants. Plaintiff alleges that 

the City of Cleveland has a policy and practice that encourages the straight release of dangerous 

suspects. Plaintiff alleges that Cuyahoga County has a policy and procedure of “not checking on 

 

McFaul on her Civil Appeal Statement, but has not specifically addressed his dismissal and has 

not made any arguments about the claims against him.

4Reginald Wilkinson, ODRC Director and Managing Officer, was not included in the 

caption of the complaint, but was named in the body of the complaint. In its order granting 

Defendants’ Rule 12 motions, the district court noted that Wilkinson was not served with the 

complaint and therefore dismissed the claims against him pursuant to Federal Rule of Civil 

Procedure 4(m). Plaintiff did not include Wilkinson on her Civil Appeal Statement and has not 

addressed his dismissal on appeal.

5Coyne is incorrectly identified as Loretta in the complaint.
No. 12-3657, Carmichael v. City of Cleveland, et. al.

6

sex offenders and their activities.” Finally, Plaintiff brings the claim against Cuyahoga County 

and the Sheriff for their “reckless, willful and wanton” failure to enforce “sexually oriented 

offender and related statutes”; for failing to create and enforce adequate policies for enforcing 

Ohio Revised Code § 2950.11, as amended by the Adam Walsh Act; and for failing to ensure 

that Sowell registered with the Sheriff’s Department.

B

On May 1, 2012, the district court granted seven motions filed by Defendants. The 

Cleveland Police Defendants, Coyne, the Cuyahoga County Board of Commissioners, and the 

Cuyahoga County Sheriff’s Department filed motions to dismiss pursuant to Federal Rule of 

Civil Procedure 12(b)(6). The City of Warrensville Heights and the Warrensville Heights Police 

Defendants filed a motion for judgment on the pleadings pursuant to Federal Rule of Civil 

Procedure 12(c). ODRC filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 

12(b)(1) based on a lack of subject-matter jurisdiction.

II

We review de novo the district court’s granting of a motion to dismiss under Federal Rule 

of Civil Procedure 12(b)(6) for failure to state a claim. Top Flight Entm't, Ltd. v. Schuette, 

729 F.3d 623, 630 (6th Cir. 2013) (citing Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 

629 (6th Cir. 2009). The same de novo standard of review applies to our review of the district 

court’s granting of a motion for judgment on the pleadings under Federal Rule 12(c). Marais v. 

Chase Home Fin. LLC, 736 F.3d 711, 713 (6th Cir. 2013) (per curiam) (citing Poplar Creek Dev. 

Co. v. Chesapeake, 636 F.3d 235, 240 (6th Cir. 2011)). Likewise, we review de novo a district 
No. 12-3657, Carmichael v. City of Cleveland, et. al.

7

court's dismissal of a complaint under Federal Rule 12(b)(1). McCormick v. Miami Univ., 

693 F.3d 654, 658 (6th Cir. 2012). 

To properly state a claim, 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). “To survive a 

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

This court has applied these now-familiar pleading requirements outlined in Twombly and 

Iqbal to motions for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). 

HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611 (6th Cir. 2012). Similarly, where a challenge 

to subject-matter jurisdiction under Federal Rule 12(b)(1) is a “facial attack,” as it is in this case, 

this court must take all of the allegations in the complaint as true. Amburgey v. United States, 

733 F.3d 633, 636 (6th Cir. 2013).

6

 

6Because we must accept all the allegations in the complaint as true, we reject the 

argument made on appeal by the City of Warrensville Heights and the City of Cleveland that this 

appeal should be rejected because Plaintiff’s citations to the district court record are insufficient 

and Plaintiff has introduced new facts in her appellate brief by referring to events which occurred 

after the district court dismissed her claims. While Plaintiff’s Corrected Brief does not provide 

extensive references to the record, Plaintiff cites to the district court’s opinion, cites Defendants’

motions and makes it clear that her statement of facts is based on the allegations in the 

complaint. Because our review is limited to the allegations in the complaint, any references 

beyond these documents are unnecessary and any “new” facts have no bearing on this Court’s 

decision. 
No. 12-3657, Carmichael v. City of Cleveland, et. al.

8

III

A

On appeal, one of Plaintiff’s main arguments is that the district court engaged in “judicial 

plagiarism.” Plaintiff points out that, in their motion, the City of Warrensville Heights and the 

Warrensville Heights Police Defendants argued:

In this case, the Complaint is devoid of any claims that the Warrensville Heights 

defendants discriminated against the Plaintiff’s decedent based upon her race.

Instead, the factual allegations included in the complaint indicate that, if 

anything, the Plaintiff’s decedent was discriminated against based upon her 

status as a known drug user in the community. See Complaint ¶14. This is 

insufficient to maintain a claim under 42 U.S.C. §1981, which requires an 

allegation of racial animus. Consequently, Plaintiff’s 42 U.S.C. §1981 claim fails 

as a matter of law and should be dismissed with prejudice. 

R. 55, p. 8 (emphasis added).

In its opinion, the district court wrote:

The Complaint here lacks any facts related to the alleged race discrimination. 

Instead, the factual allegations indicate that, if anything, Tonia Carmichael 

was discriminated against based upon her status as a known drug user. This 

is insufficient to maintain a claim under 42 U.S.C. § 1981, which requires an 

allegation of racial animus. Consequently, Plaintiff’s 42 U.S.C. § 1983 claim fails 

as a matter of law.

R. 85, p. 21 (emphasis added). Plaintiff argues that there is no indication in the record that the 

district court “even read Plaintiff’s Complaint.” Appellant’s Br. 16. 

In addressing this issue, Plaintiff and Defendants both cite caselaw that stands for the 

proposition that a judge should exercise independent judgment. While true, most of this 

discussion is unnecessary and inapplicable in this case. The district court made a careful review 

of the complaint as evidenced by the opinion. The district court listed the defendants separately, 

and then explained who they were and the allegations against each one of them in detail. When 
No. 12-3657, Carmichael v. City of Cleveland, et. al.

9

analyzing Plaintiff’s claims, the district court filled in many of the blanks left by Plaintiff’s 

complaint. For example, even though Plaintiff did not state which constitutional rights formed 

the basis of her Section 1983 claims, the district court explained that it appeared that Plaintiff 

was basing her claims on Tonia’s rights to substantive due process and equal protection.

While there is clearly some overlap between the argument in Defendants’ motion and the 

district court’s opinion, similarity in a single paragraph of a thirty-four page opinion does not 

demonstrate that the district court failed to exercise independent judgment in considering

Plaintiff’s claims.

B

Plaintiff also argues that the district court misconstrued her federal claims. On appeal, 

Plaintiff argues that her federal claims are only brought against the City of Warrensville Heights 

and the City of Cleveland. Plaintiff does not address the dismissal of any federal claims brought 

against the other defendants. Therefore, Plaintiff has waived any argument that she has brought 

federal claims against any defendant other than the City of Warrensville Heights and the City of 

Cleveland. Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir. 2013) (“arguments not raised 

in a party's opening brief, as well as arguments adverted to in only a perfunctory manner, are 

waived”) (citing Caudill v. Hollan, 431 F.3d 900, 915 n.13 (6th Cir. 2005)). 

At times, Plaintiff appears to collapse her federal claims into one. However, Plaintiff’s 

claim under Section 1981 is distinct from her due-process and equal-protection claims under 

Section 1983.
No. 12-3657, Carmichael v. City of Cleveland, et. al.

10

1. Section 1981

“Section 1981 prohibits racial discrimination in the making and enforcement of 

contracts.” McCormick v. Miami Univ., 693 F.3d 654, 659 (6th Cir. 2012) (citing Runyon v. 

McCrary, 427 U.S. 160 (1976)). Plaintiff fails to address the district court’s conclusion that 

§1981, as amended by the Civil Rights Act of 1991, does not provide a private cause of action 

against governmental entities or state actors in their official or individual capacities. Accord 

Arendale v. City of Memphis, 519 F.3d 587, 598-99 (6th Cir. 2008) (“the express cause of action 

for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights 

guaranteed in § 1981 by state governmental units.”); McCormick, 693 F.3d at 662. This alone 

would be enough to dismiss Plaintiff’s §1981 claim, but as the district court explained, Plaintiff 

has not properly pleaded a claim against the City of Warrensville Heights and the City of 

Cleveland.

To state a claim under §1981, a plaintiff must show that “(1) he [or she] belongs to an 

identifiable class of persons who are subject to discrimination based on their race; (2) Defendants 

intended to discriminate against him [or her] on the basis of race; and (3) Defendants' 

discriminatory conduct abridged a right enumerated in section 1981(a).” Amini v. Oberlin 

College, 440 F.3d 350, 358 (6th Cir. 2006). However, Plaintiff has not alleged facts indicating 

discrimination based on race. Instead, Plaintiff alleges in her complaint that the City of 

Warrensville Heights refused to take a missing-persons report because Tonia “would show up 

after her drugs were gone” or “will show up after she finishes smoking crack.” Plaintiff alleges 

that the City of Cleveland refused to take a missing-persons report because Tonia was not a 

resident of Cleveland. Neither of these allegations shows an intent to discriminate on the basis 
No. 12-3657, Carmichael v. City of Cleveland, et. al.

11

of race. Similarly, Plaintiff alleges that Cleveland improperly investigated Sowell’s 2008 case 

and released him. However, there are no allegations that the improper investigation or Sowell’s 

release were based on race.

Therefore, the district court properly dismissed Plaintiff’s §1981 claim against the City of 

Warrensville Heights and the City of Cleveland.

2. Section 1983

Section 1983 provides a cause of action for “the deprivation of any rights, privileges, or 

immunities secured by the Constitution and laws” by any person acting “under color of any 

statute, ordinance, regulation, custom, or usage, of any State or Territory.” 42 U.S.C. § 1983. 

The district court analyzed Plaintiff’s §1983 claim as being based on violations of Tonia’s 

substantive-due-process and equal-protection rights under the Fourteenth Amendment.

As the district court explained, the Due Process Clause “is phrased as a limitation on the 

State's power to act, not as a guarantee of certain minimal levels of safety and security.” 

DeShaney v. Winnebago Cnty. Dep't of Social Servs., 489 U.S. 189, 195 (1989). Therefore, the 

City of Warrensville Heights and the City of Cleveland did not have a duty to prevent Sowell, a 

private actor, from murdering Tonia. The district court explained that none of the limited 

exceptions to this general rule applied. There were no allegations to support a “special 

relationship” between Warrensville Heights or Cleveland and Tonia; and Warrensville Heights

and Cleveland did not create a “special danger” which placed Tonia specifically at risk, as 

opposed to the public at large. On appeal, Plaintiff states that she never maintained that 

Warrensville Heights and Cleveland had a general duty to protect individuals from private acts of

violence, and appears to concede that she has not stated a due-process claim.
No. 12-3657, Carmichael v. City of Cleveland, et. al.

12

Instead, Plaintiff clarifies that the basis of her §1983 claim is that Tonia “was selectively 

denied the protective services of two Defendant Cities on the basis that she was an AfricanAmerican, and thus Defendants violated the Equal Protection Clause.” Appellant’s Br. 18.

“The Equal Protection Clause prohibits discrimination by government which either 

burdens a fundamental right, targets a suspect class, or intentionally treats one differently than 

others similarly situated without any rational basis for the difference.” TriHealth, Inc. v. Bd. of 

Comm'rs, 430 F.3d 783, 788 (6th Cir. 2005). The district court concluded that the complaint did 

not establish that Warrensville Heights or Cleveland treated Tonia differently because she was an 

African American. We agree.

Plaintiff has not properly alleged that she was singled out or treated differently from other 

similarly situated missing persons. The complaint states that Warrensville Heights and

Cleveland failed to make prompt investigations of missing African Americans and denied Tonia 

protective services “on the basis that she was an African-American.” However, this type of 

unsupported, conclusory statement is not entitled to the assumption of truth. See Iqbal, 556 U.S. 

662, 679 (“While legal conclusions can provide the framework of a complaint, they must be 

supported by factual allegations.”).

Plaintiff appears to put more weight into her argument that the City of Warrensville 

Heights and the City of Cleveland have in place a policy and practice of not making prompt 

investigations of missing persons when the person is African-American. While such a claim 

would be viable under Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), merely alleging that 

such a policy is in place is not enough. The pleading standard under Federal Rule 8 does not 

require “detailed factual allegations,” but it demands “more than an unadorned, the-defendant-
No. 12-3657, Carmichael v. City of Cleveland, et. al.

13

unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 

At oral argument, counsel for Plaintiff explained that there were other cases of missing 

African Americans that were not investigated by Warrensville Heights or Cleveland. However, 

counsel admitted that these allegations were not included in the complaint.7 Without any 

detailed factual allegations of this nature, Plaintiff cannot maintain her equal-protection claim. 

Therefore, the district court properly dismissed Plaintiff’s §1983 claim against the City of 

Warrensville Heights and the City of Cleveland.

C

Finally, Plaintiff argues that the district court should not have dismissed her state-law 

claims with prejudice. Plaintiff explains that the district court should have declined to exercise 

its supplemental jurisdiction and dismissed the claims without prejudice so that Plaintiff could 

re-file her claims in state court.8 On appeal, Plaintiff does not make any other arguments 

regarding the dismissal of the state-law claims. 

1. Supplemental Jurisdiction

We review de novo a district court's determination as to whether it had supplemental 

jurisdiction over state-law claims. Blakely v. United States, 276 F.3d 853, 860 (6th Cir. 2002) 

(citing Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 759 (6th Cir. 2000)). We review a district 

court's decision to exercise supplemental jurisdiction for abuse of discretion. Harper v. 

 

7

The district-court record shows that after Defendants filed their motions, Plaintiff was granted 

leave to amend her complaint, but did not do so within the requested deadline. Plaintiff 

requested a second extension of time to file an amended complaint, but the district court denied 

that request.

8At times, Plaintiff also argues that the district court should have remanded the claims to state 

court. However, Plaintiff’s claims were filed in federal court at the outset.
No. 12-3657, Carmichael v. City of Cleveland, et. al.

14

AutoAlliance Int'l, Inc., 392 F.3d 195, 200 (6th Cir. 2004) (citing Landefeld v. Marion Gen. 

Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir. 1993)). “An abuse of discretion exists only when the 

court has the definite and firm conviction that the district court made a clear error of judgment in 

its conclusion upon weighing relevant factors.” Gamel v. City of Cincinnati, 625 F.3d 949, 951 

(6th Cir. 2010) (quoting Gaeth v. Hartford Life Ins., Co., 538 F.3d 524, 528-29 (6th Cir. 2008) 

(citation and alterations omitted)).

A district court has “supplemental jurisdiction over all other claims that are so related to 

claims in the action within [the court's] original jurisdiction that they form part of the same case 

or controversy.” 28 U.S.C. § 1367(a). However, the district court “may decline to exercise 

supplemental jurisdiction” if “the district court has dismissed all claims over which it has 

original jurisdiction.” 28 U.S.C. § 1367(c)(3).

Generally, “[w]hen all federal claims are dismissed before trial, the balance of 

considerations usually will point to dismissing the state law claims, or remanding them to state 

court if the action was removed.” Musson Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1254-

55 (6th Cir. 1996). However, “there is no categorical rule that the pretrial dismissal of a federal 

claim bars a court from deciding remaining state law claims.” Instead, the decision regarding the 

exercise of supplemental jurisdiction “depends on ‘judicial economy, convenience, fairness, and 

comity.’” Id. at 1254 (quoting Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). 

Moreover, district courts have “broad discretion in deciding whether to exercise supplemental 

jurisdiction over state law claims.” Id. 

There is no question that Plaintiff’s state-law tort claims are a part of the same case or 

controversy as Plaintiff’s federal claims under 42 U.S.C. §§ 1981 and 1983. “Claims form part 
No. 12-3657, Carmichael v. City of Cleveland, et. al.

15

of the same case or controversy when they ‘derive from a common nucleus of operative facts.’” 

Blakely, 276 F.3d at 861 (6th Cir. 2002) (quoting Ahearn v. Charter Township of Bloomfield, 100 

F.3d 451, 454-55 (6th Cir.1996)). Plaintiff’s claims are centered on Defendants’ failure to 

prevent and investigate Tonia’s disappearance. 

Defendants filed seven dispositive motions addressing both the federal and state-law 

claims brought against them. The briefing on some of these motions was stayed for 

approximately five months while the state criminal proceedings against Sowell were completed. 

R. 36. The district court then held oral argument on the motions. R. 84. In its opinion on the 

motions, the district court noted that much of the complaint was “confusing and difficult to 

parse.” However, the district court carefully sorted through Plaintiff’s six claims and determined 

which claims were being brought against which of the twenty-one defendants. In the interest of 

judicial economy, the district court properly ruled on both the federal and state-law claims. The

re-filing of Plaintiff’s complaint in state court would have in all likelihood meant the re-filing of 

Defendants’ motions, which would then require a state court to repeat much of the same process. 

Therefore, the district court did not abuse its discretion in exercising supplemental jurisdiction 

over Plaintiff’s state-law claims.9 

 

9However, as discussed below, because the district court dismissed the claims against 

ODRC for lack of subject-matter jurisdiction, dismissal of the claims against ODRC should have 

been without prejudice.
No. 12-3657, Carmichael v. City of Cleveland, et. al.

16

2. State law claims

While Plaintiff has not challenged the dismissal of her state law claims beyond the 

district court’s exercise of supplemental jurisdiction, we nevertheless find that Defendants’ 

motions were well-taken.

The district court explained that the Cuyahoga County Sheriff’s Department is not sui 

juris, and therefore the claims against it should be dismissed. Plaintiff did not argue to the 

contrary before the district court, and even though Plaintiff has named the Sheriff’s Department 

on appeal, she has not challenged the district court’s finding.10 However, as the district court 

correctly noted, federal courts have held that, under Ohio law, a county sheriff's office is not a 

legal entity that is capable of being sued. Barrett v. Wallace, 107 F. Supp. 2d 949, 954-55 (S.D. 

Ohio 2000) (citing Batchik v. Summit County Sheriff's Dept., No. 13783, 1989 WL 26084, at *1 

(Ohio Ct. App. Mar. 15, 1989)); Petty v. Cnty. of Franklin, Ohio, 478 F.3d 341, 347 (6th Cir. 

2007) (“under Ohio law, a county sheriff's office is not a legal entity capable of being sued for 

purposes of § 1983.”); see also Yahnke v. Nixon, 1:10 CV 1470, 2010 WL 3420650, *1 (N.D. 

Ohio Aug. 27, 2010) (collecting federal cases). Therefore, dismissal of the claims against the 

Cuyahoga County Sheriff’s Department was proper.

The district court dismissed the claims against ODRC for lack of subject-matter 

jurisdiction based on immunity under the Eleventh Amendment, which provides that “[t]he 

 

10The district court did not reach the merits of Plaintiff’s claim that the Cuyahoga County 

Sheriff’s Department failed to register Sowell as a sex offender. However, according to 

Plaintiff’s complaint, Sowell plead guilty to two counts of attempted rape in 1990. In Ohio, the 

requirements of the Adam Walsh Act do not apply to offenses occurring before the enactment of 

the Act in 2007. State v. Palmer, 964 N.E.2d 406, 410 (Ohio 2012) (citing State v. Williams, 

952 N.E.2d 1108 (Ohio 2011)).
No. 12-3657, Carmichael v. City of Cleveland, et. al.

17

Judicial power of the United States shall not be construed to extend to any suit in law or equity, 

commenced or prosecuted against one of the United States by Citizens of another State, or by 

Citizens or Subjects of any foreign state.” U.S. Const. amend. XI. We have previously held that 

Ohio has not waived its Eleventh Amendment immunity from state-law claims for money 

damages against ODRC. Turker v. Ohio Dept. of Rehab. and Corr., 157 F.3d 453, 456-57 (6th 

Cir. 1998). Therefore, the district court properly dismissed Plaintiff’s claims against ODRC. 

However, this dismissal should not have been with prejudice. Dismissals for lack of jurisdiction 

based on Eleventh Amendment immunity should be made without prejudice. Ernst v. Rising, 

427 F.3d 351, 367 (6th Cir. 2005). The judgment in this case should be amended accordingly.

The district court dismissed the state-law claims against the Cuyahoga Board of 

Commissioners, the City of Warrensville Heights, the Warrensville Heights Police Defendants, 

the City of Cleveland, and the Cleveland Police Defendants based on Ohio Revised Code 

§§ 2744.02 and 2744.03, which establish immunity for political subdivisions and their 

employees.

In Ohio, a three-tier analysis is used to determine whether a political subdivision is 

immune from liability. Elston v. Howland Local Sch., 865 N.E.2d 845, 848 (Ohio 2007). The 

first tier is a general grant of immunity from liability “for injury, death, or loss to persons or 

property allegedly caused by an act or omission of the political subdivision or an employee of the 

political subdivision in connection with governmental or proprietary function.” Ohio Revised 

Code § 2744.02(A)(1). The second tier is a determination as to whether one of the exceptions set 

forth in Ohio Revised Code § 2744.02(B) applies: (1) the negligent operation of a motor vehicle 

by an employee; (2) the negligent performance of proprietary functions; (3) the negligent failure 
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18

to keep public roads in repair and remove obstructions; (4) the negligence of employees 

occurring within or on the grounds of, and due to physical defects within or on the grounds of, 

buildings used in connection with the performance of governmental functions; or (5) where civil 

liability is expressly imposed by statute. However, in the third tier, immunity may be reinstated 

if a political subdivision can successfully assert one of the defenses listed in Ohio Revised Code 

§ 2744.03.

In addition, Ohio Revised Code § 2744.03(A)(6) provides immunity to employees of 

political subdivisions unless one of the following applies: “(a) The employee's acts or omissions 

were manifestly outside the scope of the employee's employment or official responsibilities; 

(b) The employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or 

reckless manner; (c) Civil liability is expressly imposed upon the employee by a section of the 

Revised Code . . . .”

Under the first tier of the analysis, the allegations against the Cuyahoga Board of

Commissioners, the City of Warrensville Heights, the Warrensville Heights Police Defendants, 

the City of Cleveland, and the Cleveland Police Defendants all concern acts or omissions in 

connection with a governmental function. Under the statute, a “governmental function” includes 

“[t]he provision or nonprovision of police, fire, emergency medical, ambulance and rescue 

services or protection” and “[t]he enforcement or nonperformance of any law.” Ohio Rev. Code 

§ 2744.01(C)(2)(a) and (i). Plaintiff’s state-law claims are based on: (1) a failure “to prevent the 

actions of defendant Anthony Sowell, by allowing Anthony Sewell to be released from 

confinement without rehabilitative treatment”; (2) the City of Cleveland’s “straight release” 

policy; (3) Cuyahoga County’s policy of “not checking on sex offenders and their activities”;
No. 12-3657, Carmichael v. City of Cleveland, et. al.

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(4) Cuyahoga County and the Sheriff’s failure to enforce “sexually oriented offender and related 

statutes;” (5) Cuyahoga County and the Sheriff’s failure to create and enforce adequate policies 

for enforcing Ohio Revised Code § 2950.11, as amended by the Adam Walsh Act; and 

(6) Cuyahoga County and the Sheriff’s failure to ensure that Sowell registered with the Sheriff. 

These allegations fall within the definition of a “governmental function” under the first tier of the 

analysis. Because under the second tier of the analysis none of the exceptions listed in Ohio 

Revised Code § 2744.02(B) apply, it is unnecessary to reach the third tier of the analysis. See

Colbert v. Cleveland, 790 N.E.2d 781, 783 (Ohio 2003).

In addition, none of the exceptions under Ohio Revised Code § 2744.03(A)(6) apply so as

to impose liability on the individually named defendants. Plaintiff did not allege that the acts of 

the named defendants were outside the scope of their employment and official responsibilities. 

While Plaintiff did allege that the County and the Sheriff were “grossly negligent, reckless, 

willful and wanton” in the enforcement of “the sexually oriented offender and related statutes,” 

there are no factual allegations to accompany this conclusory statement.

Therefore, the state-law claims against the Cuyahoga Board of Commissioners, the City 

of Warrensville Heights, the Warrensville Heights Police Defendants, the City of Cleveland, and 

the Cleveland Police Defendants were properly dismissed.

The claims against Coyne were based on Coyne’s failure to investigate Sowell’s 

2008 case and her decision not to bring charges against him. Part of Plaintiff’s allegations 

against Coyne is that the release of Sowell in 2008 was “reckless, wanton and willful.” 

However, even if Plaintiff’s allegations against Coyne fall within one of the exceptions under 

Ohio Revised Code § 2744.03(A)(6), Ohio Revised Code § 2744.03 provides: “an employee who 
No. 12-3657, Carmichael v. City of Cleveland, et. al.

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is a county prosecuting attorney, city director of law, village solicitor, or similar chief legal 

officer of a political subdivision, an assistant of any such person, or a judge of a court of this 

state is entitled to any defense or immunity available at common law or established by the 

Revised Code.” Ohio Rev. Code § 2744.03(A)(7). At common law, prosecuting attorneys 

enjoyed absolute immunity when initiating a prosecution and presenting the state's case. 

Willitzer v. McCloud, 453 N.E.2d 693, 695 (Ohio 1983) (citing Imbler v. Pachtman, 424 U.S. 

409, 430 (1976)). Accordingly, absolute immunity applies to acts such as “the professional 

evaluation of the evidence assembled by the police and appropriate preparation for its 

presentation at trial or before a grand jury after a decision to seek an indictment has been made.” 

Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Absolute immunity also applies to the 

“decision to investigate or not to investigate and to present the facts discovered in a judicial 

proceeding, including presentment to a grand jury.” Grant v. Hollenbach, 870 F.2d 1135, 1139 

(6th Cir. 1989). These are the acts upon which Plaintiff has based her claims against Coyne, and 

therefore, it was proper for the district court to find that Coyne was entitled to absolute immunity 

and dismiss the claims against her.

IV

The district court properly dismissed the § 1981 and § 1983 claims against the City of 

Warrensville Heights and the City of Cleveland. The district court also properly dismissed 

Plaintiff’s state-law claims with prejudice, with the exception of the state law claims against 

ODRC. Because the district court lacked subject-matter jurisdiction, dismissal should have been 

without prejudice. Therefore, we AFFIRM the district court’s judgment except to the extent that 

the dismissal of the claims against ODRC was with prejudice, which is VACATED.