UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

JAMES JONES, et al., 

 Plaintiff, Case No. 1:18-cv-403 

vs. Dlott, J. 

 Bowman, M.J. 

VILLAGE OF GOLF MANOR, et al., 

 

 Defendants. 

REPORT AND RECOMMENDATION 

 This civil action is now before the Court on Defendants Matt Brettcher, Sharon 

Chaney, Stephan Densmore, Brenda DuBose, Ron Hirth, Lou Marx, Greg Schwartzberg, 

Village of Golf Manor motion for judgment on the pleadings (Doc. 51) and the responsive 

memoranda. (Docs. 53, 54). Upon careful consideration, the undersigned finds that 

Defendants motion is well-taken. 

A. Background and Facts 

Plaintiffs, the owners of two apartment buildings in the Village of Golf Manor, rent 

the residential spaces in these buildings mostly to sex offenders. Doc. 10, PAGEID# 54-

55. On April 14, 2018, Plaintiffs allege that an inspection of Plaintiff’s buildings was 

conducted, without notice given to Plaintiffs, by Tucker Stone, the Golf Manor Police and 

Fire Departments, and the Golf Manor Building Code Inspector. (Doc. 10, PAGEID# 55). 

Golf Manor officials met with Plaintiffs on April 27, 2018 regarding a new village ordinance 

that would require Plaintiffs’ sex offender tenants to move out. Id. At the end of April, 

Defendant Joy Pierson called Greater Cincinnati Behavioral (“GCB”), where Plaintiffs get 

most of their tenants, and told GCB that Plaintiffs’ building was going to be condemned. 
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(Doc. 10, PAGIED# 56). GCB prepared for evacuation and held Plaintiffs’ rent checks for 

over a month. Id. Golf Manor’s ordinance was given its third reading on May 14, 2018 and 

went into effect 30 days later. Id. Plaintiffs allege that they were never informed of the first 

two readings. Id. Plaintiff Mr. Jones was off work because of a surgery during these 

events. Id. 

Thereafter, Plaintiffs filed the instant action against the Village of Golf Manor, its 

administrator and council members, and the commissioner and an employee of the 

Hamilton County Health District alleging various constitutional violations. (Doc. 1, 

PAGEID # 1). All of the individual defendants were sued in both their official and individual 

capacities. Id. 

Plaintiffs sought leave to file an amended complaint through a series of filings 

(Docs. 10, 12). Answers were filed as to the original complaint (Doc. 1) by the Golf Manor 

Defendants (Doc. 13, filed June 28, 2018) and by the Health District Defendants (Doc. 

14, filed July 2, 2018). On October 25, 2018, this Court entered a notation order granting 

Plaintiffs’ Motion to File an Amended Complaint (Doc. 10) which named as additional 

defendants: Joy Pierson and Todd Kinskey. On October 31, 2018, the Golf Manor 

Defendants answered the Amended Complaint. (Doc. 17). The Golf Manor Defendants 

include the Village, Mayor Greg Schwartzberg, Village Administrator Ron Hirth, and 

Village Councilmembers Matt Boettcher, Sharon Chaney, Stefan Densmore, Brenda 

Dubose and Lou Marx. 

Thereafter, Timothy Ingram, Health Commissioner of Hamilton County Public 

Health, Tucker Stone, Environmental Health Supervisor of Hamilton County Public 

Health, and Joy Pierson, Community Development Administrator with Hamilton County 
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Planning + Development in their official and individual capacities (collectively referred to 

as “County Defendants”), moved to dismiss the Amended Complaint (Doc. 21, PAGEID 

#94), and County Defendant Kinskey followed with a separate motion to dismiss (Doc. 

22, PAGEID #109). On April 11, 2019, the Magistrate Judge’s Report and 

Recommendation recommended that the County Defendants’ motions to dismiss (Docs. 

21, 22) should be granted and that Plaintiffs’ claims against Defendants Timothy Ingram, 

Todd Kinskey, Joy Pierson, Tucker Stone should be dismissed. 

Defendants Village of Golf Manor, Greg Schwartzberg, Ron Hirth, Matt Boettcher, 

Sharon Chaney, Stefan Densmore, Brenda Dubose and Lou Marx, (herein “Golf Manor 

Defendants”), now seek to have the claims asserted against them dismissed. For the 

reasons set forth below, the undersigned finds that the Golf Manor Defendants motion for 

judgment on the pleadings (Doc. 51) is well-taken and should be granted. 

II. Analysis 

A. Standard of Review 

Under the Federal Rules of Civil Procedure, “after 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). Judgment may be granted under Rule 12(c) where the moving parties 

clearly establish that no material issue of fact remains to be resolved and that they are 

entitled to judgment as a matter of law. JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 

577, 581 (6th Cir. 2007). A motion for judgment on the pleadings under Rule 12(c) is 

subject to the same standard of review as a motion under Rule 12(b)(6). 

Penny/Ohlmann/Nieman, Inc. v. Miami Valley Pension Corp., 399 F.3d 692, 697 (6th 

Cir.2005). In addition, it is well settled that, in presenting a complaint, “[t]hreadbare recital 
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of the elements of a cause of action, supported by mere conclusory statements, do not 

suffice.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). “Although 

the court must accept well-pleaded factual allegations of the complaint as true for 

purposes of a motion to dismiss, the court is not bound to accept as true a legal conclusion 

couched as a factual allegation.” Id., see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 

1937, 1949 (2009). Specifically, “formulaic recitations of the elements of a cause of action 

‘will not do.’” Huffer v. Bogen, Case No. 1:10-cv-312-HJW, *8 (S.D. Ohio 2011), citing 

Twombly at 555 and Iqbal at 1949. “What Twombly and Iqbal do require is that plaintiffs 

provide factual allegations from which a court may plausibly infer a cause of action.” Gross 

v. Nationwide Credit, Inc., Case No. 1:10-CV-00738, *3 (S.D. Ohio 2011). 

B. Defendants motion is well-taken 

 The Golf Manor Defendants argue that they are entitled to judgment as a matter 

of law because Plaintiff’s do not have standing. Defendants further contend that they are 

entitled to legislative and /or qualified immunity. Each assertion will be addressed in turn. 

1. Standing 

 “‘No principle is more fundamental to the judiciary’s proper role in our system of 

government than the constitutional limitation of federal-court jurisdiction to actual cases 

or controversies.’” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. Eastern 

Ky. Welfare Rights Organization, 426 U.S. 26, 37 (1976)). To have standing, a plaintiff 

must establish (1) an “injury in fact,” meaning “an invasion of a legally protected interest 

[that] is (a) concrete and particularized and (b) ‘actual or imminent, not “conjectural” or 

“hypothetical”’”; (2) “a causal connection between the injury and the conduct complained 

of,” i.e., the injury complained of must be “fairly ... trace[able] to the challenged action of 
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the defendant, and not ... th[e] result [of] the independent action of some third party not 

before the court”; and (3) that it is “‘likely,’ as opposed to merely ‘speculative,’ that the 

injury will be ‘redressed by a favorable decision.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 

560 (1992) (alterations in original) (citations omitted). 

 Claimants cannot file a lawsuit based on a “highly speculative fear” that a law may 

harm them at some future date. Clapper v. Amnesty Int'l USA, 568 U.S. 398, 410 (2013). 

The injury instead must be “certainly impending.” Id. An allegation “of possible future 

injury” is not enough. Id. at 409 (quotation omitted). The Supreme Court has stated, “The 

party invoking federal jurisdiction bears the burden of establishing’ standing.” Susan B. 

Anthony List v. Driehaus, 134 S.Ct. 2334, 2342, 573 U.S. 149, 158 (U.S.,2014), (internal 

citation omitted). “[E]ach element must be supported in the same way as any other matter 

on which the plaintiff bears the burden of proof, i.e., with the manner and degree of 

evidence required at the successive stages of the litigation.” Id. 

 Here, Defendants contend that Plaintiffs have not suffered an actual injury and do 

not have a “certainly impending” risk of injury. Notably, Plaintiffs cannot produce any 

evidence that they are subject to the village ordinances. Plaintiff as they are simply 

landlords and not the sex-offender tenants. The Plaintiffs also have not alleged that they 

have been convicted of an offense which requires them to register as a sex offender in 

Ohio, which would avail them to the restrictions in the Village of Golf Manor Ordinances 

2018-4 and 2018-7. Thus, these Plaintiffs have failed to establish that they have standing 

to challenge these ordinances because they have failed to provide evidence that they are 

subject to its restrictions. Accordingly, this matter is properly dismissed for lack of 

standing. 
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2. Immunity 

 Assuming arguendo, that Plaintiffs have stand to bring this action, Defendants 

further contend that the Village of Golf Manor Defendants are entitled to legislative and 

qualified immunity. 

 Legislative immunity for state and local legislators and their surrogates is derived 

from federal common law which is similar in scope and object to the immunity afforded 

federal legislators under the Speech and Debate Clause of the Unites States Constitution, 

Article I, § 6, cl. 1. The Clause is written to ensure that the Legislative Branch will be able 

to perform without undue interference all of the legislative functions given it in the 

Constitution. The Clause operates to shelter individual legislators from the distractions 

and hindrance of civil litigation and immunizes them from suits for prospective relief or 

damages. National Association of Social Workers v. Harwood, 69 F.3d 622, 629-630 (1st 

Cir. 1995) citing Eastland v. Units States Servicemen’s Fund, 421 U.S. 491, 502-03; 95 

S.Ct. 1813, 1820-21; 44 L.Ed.2d 324 (1975) and Supreme Court of Virginia v. Consumers 

Union of the U.S., Inc., 446 U.S. 719, 731 (1980). While the core protection conferred by 

the Clause concerns speech or debate, the protection is broader extending to any act 

done in a session of the House by one of the members in relation to the business before 

it. Id. at 630 citing Kilbourn v. Thompson, 103 U.S. 168, 204 (1880). The key limitation of 

the protection of the Speech and Debate Clause which applies to both members of 

Congress and staffers is that the clause only protects “purely legislative activities.” Id. 

citing United States v. Brewster, 408 U.S. 501, 512; 92 S.Ct. 2531, 2537; 33 L.Ed.2d 507 

(1972). 
7 

 Here, Defendants argue that the actions of the Village Council meeting should be 

considered legislative in nature. Notably, Defendants contend that the actions of the 

Village Councilmembers in participating in a vote on the sex offender residency 

ordinances at issue falls under the definition of “legislative activity.” The undersigned 

agrees. 

 “The United States Supreme Court has held that ‘absolute legislative immunity 

attaches to all actions taken in the sphere of legitimate legislative activity.’” Harris v. City 

of St. Clairsville, Ohio, S.D. Ohio No. C2-04-CV-1179, 2006 WL 3791409 (Dec. 21, 2006), 

quoting Bogan v. Scott-Harris, 523 U.S. 44, 54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). 

Signing an ordinance into law is “quintessentially legislative,” but the definition is broader 

and covers other aspects of the legislative process. See Timmon v. Wood, 633 F.Supp.2d 

453, 459-460 (W.D. Michigan, April 2008) citing Bogan. “The claim of an unworthy 

purpose does not destroy the privilege,” and a legislator is entitled to absolute immunity 

for actions taken within the legislative sphere even if the legislator acted “to intimidate 

and silence” and to prevent a person “from effectively exercising his constitutional rights.” 

Id. citing Tenney at 371, 377. 

 Here, the undersigned agrees that the individual Golf Manor defendants, in acting 

in their role as village councilmembers and voting on the ordinances, were acting in a 

legislative capacity and they are protected from claims such as the one brought by 

Plaintiffs. The Village of Golf Manor Defendants are entitled to absolute legislative 

immunity on all of Plaintiffs’ claims. 

 In the alternative, the Village of Golf Manor Individual Defendants argue that they 

are entitled to qualified immunity as the claimed disregard for the law was not apparent 
8 

under existing law. The purpose of qualified immunity is to provide governmental officials 

with the ability “reasonably to anticipate when their conduct may give rise to liability for 

damages.” See Anderson v. Creighton, 483 U.S. 635, 646 (1987) (internal quotation 

omitted). Thus, a governmental official performing discretionary functions will be entitled 

to qualified immunity unless his actions violate “clearly established statutory or 

constitutional rights of which a reasonable person would have known.” Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982). A governmental official is entitled to immunity if the 

facts alleged do not make out a violation of a constitutional right, or if the alleged 

constitutional right was not clearly established at the time of the defendant’s alleged 

misconduct. Pearson v. Callahan, 129 S.Ct. 808 (2009). Here, the claimed constitutional 

violations in this context are not clearly established. As such, the claims against Village 

of Golf Manor Individual Defendants are also properly dismissed under qualified immunity 

 Defendants further contend that the Village of Golf Manner is immune from suit 

under O.R.C. Chapter 2744. Namely, Ohio Revised Code Chapter 2744 sets forth a 

general grant of immunity from liability for political subdivisions and employees of political 

subdivisions engaged in governmental functions. The Ohio Political Subdivision Tort 

Liability Act, R.C. Chapter 2744, provides that: political subdivisions are generally immune 

from liability for damages in civil actions: “[e]xcept as provided in division (B) of this 

section, a political subdivision is not liable in damages in a civil action for injury, death, or 

loss to person or property allegedly caused by an act or omission of the political 

subdivision or an employee of the political subdivision in connection with a governmental 

or proprietary function.” Vacha v. N. Ridgeville 136 Ohio St.3d 199, 201-202, 992 N.E.2d 

1126, 1130 (Ohio, 2013), R.C. 2744.02(A)(1). A political subdivision is defined by R.C. 
9 

2744.01(F) as a “municipal corporation, township, county, school district, or other body 

corporate and politic responsible for governmental activities in a geographic area smaller 

than that of a state.” Employees of a political subdivision sued in their official capacities 

are entitled to the same immunity afforded the political subdivision. R.K. v. Little Miami 

Golf Ctr. 2013 WL 5972410, 8 (Ohio App. 1 Dist.)(Ohio App. 1 Dist., 2013). 

 Plaintiffs allege that one of the exceptions to immunity under R.C. 2744.02(B) 

applies here. Specifically, R.C. 2744.02(B)(2), which provides, “(2) the negligent act of a 

government employee with respect to proprietary functions of the political subdivision.” 

Thus, Plaintiffs appear to assert that the Golf Manor Defendants were acting within a 

proprietary function. 

 A proprietary function is generally defined as one that promotes or preserves the 

public peace, health, safety or welfare and that involves activities customarily engaged in 

by nongovernmental persons. Ohio Revised Code Ann. Sec. 2744.01(G)(1)(b). In the 

First Amended Complaint, Plaintiffs allegations consists entirely of the Golf Manor 

Defendants passing an ordinance placing residency restrictions on sex offenders. These 

allegations involve acts or omissions all clearly within the discretion of Golf Manor and its 

employees and cannot be considered a proprietary function. Thus, the Golf Manor 

Defendants are protected under R.C. 2744. 

 Plaintiff have also alleged the Village Council is liable as it had a special duty under 

the public duty rule to act under R.C. 2744.02(B)(5) and R.C. 2743.02(A)(3)(b). Under the 

public duty rule, a municipality owes a duty only to the general public when performing 

functions imposed on it by law and therefore is not liable for a breach of that duty resulting 

in harm to an individual, absent a special duty owed to the injured person. Riotte v. 
10 

Cleveland, 195 Ohio App. 3d 387, 2011- Ohio-4507, 960 N.E.2d 496 (8th Dist. Cuyahoga 

County 2011). The Village of Golf Manor was under no statutory obligation to act in this 

case. In other words, the public duty rule holds the government can be held liable only if 

that governmental entity affirmatively undertakes a duty to act in a situation where the 

governmental entity knows that inaction will cause harm and when a party who ultimately 

is injured relies upon the government to do what it promised. Hurst v. State Dept. of 

Rehabilitation and Correction, 1993 WL 387300, at *2 (Ohio App. 10 Dist.,1993). Here, 

however, Plaintiffs have failed to alleged any acts to create an exception to the public 

duty rule. As such, the Village of Golf Manor remains immune from suit under O.R.C. 

Chapter 2744. 

3. State Law Claims 

 Finally, to the extent Plaintiff claims the actions of Defendant violated Ohio state 

law, the Court should decline to exercise pendent jurisdiction over any such claims 

because Plaintiff fails to state a viable federal law claim. See United Mine Workers v. 

Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Thus, any state law claims 

should be dismissed without prejudice for lack of jurisdiction. 

 III. Conclusion 

 For these reasons, the Court hereby RECOMMENDS that the Defendants motion 

for judgment on the pleadings (Doc. 51) be GRANTED and this matter 

be TERMINATED on the active docket of the Court. 

 /s Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge 
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

JAMES JONES, et al., 

 Plaintiff, Case No. 1:18-cv-403 

vs. Dlott, J. 

 Bowman, M.J. 

VILLAGE OF GOLF MANOR, et al., 

 

 Defendants. 

NOTICE 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) 

of the R&R objected to, and shall be accompanied by a memorandum of law in support 

of the objections. A party shall respond to an opponent’s objections within FOURTEEN 

(14) DAYS after being served with a copy of those objections. Failure to make objections 

in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 

U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).