UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

JAMES JONES, et al., 

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

vs. Dlott, J. 

Bowman, M.J. 

CITY OF FOREST PARK, et al., 

 Defendants. 

REPORT AND RECOMMENDATION 

 This civil action is now before the Court on Defendants’ motions to dismiss (Docs. 

21, 22) and Plaintiffs’ motion for leave to file a second amended complaint. (Doc. 31). 

The motions will be addressed in turn.

I. 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, an inspection of Plaintiffs’ 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. (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 
2 

30 days later. Id. Plaintiffs 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 Complaint against the Village of Golf Manor, 

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

Hamilton County Health District. (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. 

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 

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). Defendants contend that Plaintiffs’ First Amended Complaint fails to 

meet the minimum pleading standards required under Rule 8 and otherwise fails to state 

a claim upon which relief can be granted. 

In response to Defendants motions to dismiss, Plaintiffs filed a motion for leave to 

file a second amended complaint. Upon review, it appears that the only new cause of 
3 

action the proposed amended complaint includes purports to be a negligence claim filed 

under an Ohio statute that creates a private cause of action for child stealing. (Doc. 31-1, 

PAGEID #199); see also: R.C. §2307.50. For the reasons that follow, the undersigned 

finds that Plaintiff’s motion to amend is not well-taken and Defendants motions to dismiss 

are well taken and should be granted. 

II. Analysis 

A. Defendants motions to Dismiss 

The County Defendants motion to dismiss asserts that Plaintiffs have failed to meet 

the pleading standards under Fed. R. Civ. P. 8(a) and as explained by Twombly and Iqbal. 

The County Defendants further assert that the Complaint fails to state a claim upon which 

relief can be granted against these County Defendants. As such, the County defendants 

further assert that this Court should decline to exercise pendent jurisdiction over any of 

Plaintiffs’ state law claims. Similarly, Defendant Kinskey seeks dismissal for the same 

reasons and also asserts that Plaintiffs have also failed to effectuate sufficient service on 

Kinskey under Fed. R. Civ. P. 4. 

1. Standard of Review 

A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of 

the claims. The court is required to construe the complaint in the light most favorable to 

the Plaintiff, and accept all well-pleaded factual allegations in the complaint as 

true. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) 

and Lewis v. ACB Business Services, 135 F.3d 389, 405 (6th Cir. 1998). A court, 

however, will not accept conclusions of law or unwarranted inferences which are 

presented as factual allegations. Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir. 
4 

1974). A complaint must contain either direct or reasonable inferential allegations that 

support all material elements necessary to sustain a recovery under some viable legal 

theory. Lewis v. ACB, 135 F.3d at 405 (internal citations omitted). “While a complaint 

attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 

a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more 

than labels and conclusions, and a formulaic recitation of the elements of a cause of 

action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 

L.Ed.2d 929 (2007) (citations omitted); Association of Cleveland Fire Fighters v. City of 

Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). Even though a complaint need not 

contain “detailed” factual allegations, its “[f]actual allegations must be enough to raise a 

right to relief above the speculative level on the assumption that all the allegations in the 

complaint are true (even if doubtful in fact).” Id. (citations omitted). 

2. Plaintiffs’ complaint fails to state a claim for relief1

Plaintiffs name each of the County Defendants in their individual capacities. With 

respect to Timothy Ingram, his name only appears in the caption and in the “Parties” 

section identifying him as a county employee. He is not identified in the Amended 

Complaint. As such, without any factual allegations in the Amended Complaint identifying 

any action or omission on the part of Ingram, the Amended Complaint fails to allege any 

individual capacity claim against defendant Ingram. 

 Plaintiffs’ complaint also fails to state a claim for relief under § 1983. Section 1983 

allows individuals to “interpose the federal courts between the States and the people, as 

guardians of the people's federal rights—to protect the people from unconstitutional 

 

1

 Defendants also claim that Plaintiff’s complaint fails to satisfy the minimum pleading requirements required under 

Fed R. Civ. P. 8. Namely, Plaintiffs do not specify which factual allegations give rise to any cause of action. 
5 

action under color of state law.” Mitchum v. Foster, 407 U.S. 225, 242 (1972). “To state a 

claim under 42 U.S.C. § 1983, a plaintiff must set forth facts that, when construed 

favorably, establish (1) the deprivation of a right secured by the Constitution or laws of 

the United States (2) caused by a person acting under the color of state law.” Miller v. 

Sanilac County, 606 F.3d 240, 247 (6th Cir.2010) (quoting Sigley v. City of Parma 

Heights, 437 F.3d 527, 533 (6th Cir.2006)). 

 Moreover, the County Defendants may only be held liable under § 1983 for injuries 

caused by official county policies or customs. Monell v. New York Dept. of Social 

Services, 436 U.S. 658, 98 S.Ct. 2018 (1978). Such custom or policy must be the “moving 

force” behind the violation. Id. at 694. “[T]o satisfy the Monell requirements a plaintiff must 

‘identify the policy, connect the policy to the [county] itself and show that the particular 

injury was incurred because of the execution of that policy.’” Garner v. Memphis Police 

Dep’t, 8 F.3d 358, 364 (6th Cir. 1993), quoting Coogan v. City of Wixom, 820 F.2d 170, 

176 (6th Cir. 1987). The acts of employees of political subdivisions do not result in 

vicarious liability under the doctrine of respondeat superior. Monell, 436 U.S. at 694; 

Stemler v. City of Florence, 126 F.3d 856, 865 (6th Cir. 1997). “The law is clear that 

liability of supervisory personnel must be based on more than merely the right to control 

employees.” Leach v. Shelby Cty. Sheriff, 891 F.2d 1241, 1246 (6th Cir. 1989), quoting 

Hays v. Jefferson, 668 F.2d 869, 872 (6th Cir. 1982), cert. denied, 459 U.S. 833, 103 

S.Ct. 75 (1982). Further, a claim of failure to supervise under section 1983 cannot be 

based on simple negligence. Id., citing Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 

(1986). A municipal liability claim pursuant to § 1983 must be examined by applying a two 

pronged inquiry: (1) has the plaintiff asserted the deprivation of a constitutional right; and 
6 

(2) is the municipality responsible for that violation. See Doe v. Claiborne County, 103 

F.3d 495, 505- 06 (6th Cir. 1996). See also Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 

3194 (1984) (plaintiff must also show that conduct was caused by an “established state 

procedure rather than random and unauthorized action”). 

Here, Plaintiffs’ Amended Complaint sets forth four causes of action under § 1983. 

They are: 1) violation of Equal Protection under the Fourteenth Amendment; 2) “Illegal 

Entry” under for Fourth and Fourteenth Amendments; 3) violation of Due Process under 

the Fourteenth Amendment; and 4) failure to train, instruct, and supervise under the 

Fourth and Fourteenth Amendments. However, despite alleging violations of the Fourth 

and Fourteenth Amendments, Plaintiffs’ Amended Complaint fails to demonstrate any 

deprivation of a constitutional right caused by any policy or procedure of the County 

Defendants. 

 As noted by the County Defendants, Plaintiffs allege that defendant Stone 

participated in an inspection on one of their properties and that defendant Pierson called 

CGB and informed them that the building would soon be condemned. Plaintiffs have not 

identified with any particularity how either of these actions violated their constitutional 

rights, nor have they identified or pled any county custom, policy, or procedure under 

which these Defendants acted. 

Defendants motions to dismiss also persuasively argue that they are entitled to 

qualified immunity. 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 
7 

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, Plaintiffs cannot articulate 

a clearly established constitutional right that has been violated by any County Defendant. 

Nor have they articulated one in their Amended Complaint. 

Because plaintiff has failed to state a cognizable federal claim for relief, the Court 

should decline to exercise supplemental jurisdiction over plaintiffs’ state-law claims 

against these Defendants pursuant to 28 U.S.C. § 1367(c)(3). For these reasons, the 

Defendants’ motions to dismiss (Docs. 21, 22) should be GRANTED and Plaintiffs’ claims 

against Defendants Timothy Ingram, Todd Kinskey2, Joy Pierson, Tucker Stone should 

be dismissed. 

II. Plaintiff’s motion to Amend (Doc. 31) 

Plaintiffs’ proposed second amended complaint seeks to “add negligence, ORC 

§2703, as a cause of action and to add Todd Kinskey’s title as Director of Hamilton County 

Planning and Development.” (Doc. 31, at 1). Plaintiff’s proposed amendment is not welltaken. 

Rule 15(a) of the Federal Rules of Civil Procedure provides that “[t]he court should 

freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Rule 15 

 

2

 Defendant Kinskey also argues that Plaintiffs’ have not properly effectuated service upon him. Kinskey, however, 

filed a motion to dismiss and had notice of this action. More importantly, as outlined above, Plaintiffs’ complaint 

fails to state any claim against him and any such claims should therefore be dismissed. 
8 

reinforces “the principle that cases ‘should be tried on their merits rather than the 

technicalities of pleadings.’” Moore v. City of Paducah, 790 F.2d 557, 559 (6th Cir. 1986) 

(quoting Tefft v. Seward, 689 F.2d 637, 639 (6th Cir.1982)). The grant or denial of a 

request to amend a complaint is left to the broad discretion of the trial court. Gen’l Elec. 

Co. v. Sargent & Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990). In exercising this discretion, 

the trial court may consider such factors as “undue delay, bad faith or dilatory motive on 

the part of a movant, repeated failure to cure deficiencies by amendments previously 

allowed, undue prejudice to the opposing party by virtue of allowance of the amendment 

[and] futility of the amendment[.]” Foman v. Davis, 371 U.S. 178, 182 (1962). See also 

Brumbalough v. Camelot Care Ctrs., Inc., 427 F.3d 996, 1001 (6th Cir. 2005). 

“Amendment of a complaint is futile when the proposed amendment would not 

permit the complaint to survive a motion to dismiss.” Miller v. Calhoun Cnty., 408 F.3d 

803, 817 (6th Cir. 2005). To survive a motion to dismiss, a complaint must contain 

sufficient factual allegations to state a claim that is plausible. Ashcroft v. Iqbal, 556 U.S. 

662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570. 

 Here, Plaintiffs’ Proposed Second Amended Complaint appears to have been cut 

and pasted from several other documents and the majority of the document is made up 

the legal conclusions offered in opposition to County Defendants’ motions to dismiss. 

(Doc. 31-1, PAGEID # 190-198). The proposed amended complaint refers to multiple 

exhibits which were not attached or filed with the document. (Doc. 31-1, PAGEID #193). 

The only paragraphs that are numbered as required appear as paragraphs 1-9 on the first 

two pages, and paragraphs 42 and 43 on the final page. (Doc. 31-1, PAGEID # 188-189, 

199). The only new cause of action the proposed amended complaint includes purports 
9 

to be a negligence claim filed under an Ohio statute that creates a private cause of action 

for child stealing. (Doc. 31-1, PAGEID #199). Namely, the proposed amendment states, 

in toto: 

42. Defendants’ conduct as described above, constitute negligence and are 

so egregious that they will always be considered negligence and are 

assumed to harm plaintiffs and in violation of Ohio Revised Code 2307 and 

2307.50. 

(Doc. 31 at 12). 

 As noted by the moving Defendants, the proposed amended complaint is silent as 

to which defendants are the object of this new cause of action and does not describe in 

any detail what, if any, damages the Plaintiffs suffered therefrom. Nor is the proposed 

amended complaint a “short and plain statement” demonstrating that Plaintiffs are entitled 

to relief as required by Rule 8 of the Federal Rules of Civil Procedure. As such, Plaintiffs’ 

proposed amendments do not comport Rule 8, nor the pleading requirements outlined in 

Twomby and Iqbal.

 For these reasons, it is herein RECOMMENDED that Plaintiffs’ motion for leave to 

file a second amended complaint (Docs. 31) should be DENIED. 

 /s Stephanie K. Bowman 

 Stephanie K. Bowman 

 United States Magistrate Judge 
10 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

JAMES JONES, et al., 

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

vs. Dlott, J. 

 Bowman, M.J. 

CITY OF FOREST PARK, 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).