NOT RECOMMENDED FOR PUBLICATION File Name: 18a0043n.06 No. 17-3458 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT STATE OF OHIO ex rel. KEITH D. MOORE, Relator, Plaintiff-Appellee, JOSHUA BERKOWITZ, Plaintiff, CITY OF NORWOOD, OHIO; THOMAS F. WILLIAMS, individually and as Mayor, Appellees, v. BRAHMA INVESTMENT GROUP, INC.; CALIFORNIA PACIFIC HOSPITALITY, LLC, Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: SUHRHEINRICH, SUTTON, and BUSH, Circuit Judges. SUHRHEINRICH, Circuit Judge. After recei ving numerous complaints of illicit drug sales and prostitution at the Qual ity Hotel and Suites Central in the City of Norwood, Hamilton County, Ohio, the Law Director fo r the City of Norwood, Relator Joshua Berkowitz (“Relator” or “Berkowitz”), 1 obtained a temporary injunction declar ing the hotel a nuisance and shutting it down. Brahma Investment Group, Inc. (“Brah ma”) and California Pacific Hospitality, LLC (“Cal Pac”) (collectively “Appe llants”), the owners of the property, removed the matter to federal district court on divers ity jurisdiction grounds, and filed a counterclaim against Relator

1 Appellants later brought claims against Berkowitz’s succe ssor, Keith D. Moore, also in his official capacity.No. 17-3458, Ohio ex rel. Keith D. Moore, et al. v. Brahma Investment Group, Inc. et al.

-2- and a third-party complaint against the City of Norwood (“City”), and its mayor, Thomas Williams (“Williams”), alleging that Relator, Norwood, and Williams were motivated by discriminatory animus in bringing the nuisance action. The district co urt ultimately dismissed Relator and granted judgment on the pleadings to Norwood and Williams. On appeal, Appellants claim that the district court erred in issuing the preliminary in junction and dismissing their counterclaims and th ird-party complaint.
I. From January 2012 through May 2014, Norwood’s police department received over thirty criminal offense reports of felony drug sales an d prostitution. The police department and the Federal Bureau of Investigation (“FBI”) also in vestigated. On June 2, 2014, Berkowitz filed a verified petition pursuant to Ohio Revised Code §§ 3767.02-.03 in the Hamilton County Court of Common Pleas against Brahma (but not against co-owner Cal Pac) seeking to ha ve the property declared a public nuisance. The Hamilton County Court of Comm on Pleas entered an ex parte temporary restraining order the same day and cl osed the property. On June 16, 2014, the state court held an evidentiary hearing on Berkowitz ’s motion for a preliminary injunction, and set a trial date of July 23, 2014. On June 25, 2014, the state court granted a pr eliminary injunction ordering the property to remain closed pending the court’s ruling on Relator’s petition for permanent injunction (whi ch never occurred). At some point prior to the preliminary inju nction hearing, Brahma tr ansferred its interest in the property to George W. Fels, CPA, as assi gnee for the benefit of cr editors, and a case was opened in probate court. On July 1, 2014, Brah ma removed the nuisance action to the district court. On July 28, 2014, Cal Pac filed a “Reque st of Interested Non- Party California Pacific Hospitality, LLC for Release of Prope rty.” The district court denied the request as moot at thatNo. 17-3458, Ohio ex rel. Keith D. Moore, et al. v. Brahma Investment Group, Inc. et al.

-3- time because the parties were negotiating the sale of the property. After negotiations failed, on July 30, 2015, the district court granted Appellants’ motion for a declaration that the preliminary injunction order entered by the state court expired pursuant to statute on June 1, 2015. Meanwhile, on December 9, 2015, the property wa s transferred by a receiver’s sale to Intervenor Unlimited Hotels, Inc. (“Unlimited”). On March 8, 2016, Brahma filed an answer to the verified complaint and Appellants filed their counterclaims against the City and thir d party complaint against Williams. Appellants alleged that the temporary restraining order was mo tivated by discriminatory animus in violation of 42 U.S.C. §§ 1981, 1983, and 1985; and that the failure to name Cal P ac in the state action violated due process. They further claimed that the City and Williams’ actions interfered with their property rights under the Oh io Constitution and amounted to c onversion of those interests. On May 2, 2016, Appellees City an d Williams filed their answer to the counterclaims and third party complaint and also filed a motion fo r judgment on the pleadings. On October 18, 2016, Relator and Unlimited filed a joint motion to dismiss the in rem claims because the preliminary injunction had expired and the Ho tel was under new ownership. On March 29, 2017, the district court granted th e motion to dismiss the state-la w nuisance claim, noting that Brahma agreed that the state-law nuisance claim and demand for injunctive relief were moot. The court therefore dismissed Relato r and Unlimited from the action. The same day, by separate order, the dist rict court granted Appellees City’s and Williams’ motion for judgment on the pleadings. Noting that the claims against the City were based on the alleged wrongdoing of Be rkowitz, the district court held that the City was not liable under §§ 1981 or 1983 because (1) a municipality su ch as the City cannot be liable for its employee’s behavior on a respondeat superior theory; (2) Berkowitz was acting on behalf of theNo. 17-3458, Ohio ex rel. Keith D. Moore, et al. v. Brahma Investment Group, Inc. et al.

-4- State of Ohio, not the City, when he brought th e nuisance action pursuant to Ohio Revised Code § 3767.03; and (3) Appellants had not alleged any unc onstitutional policy or custom by the City. The court also held that Williams was not lia ble under §§ 1981 or 1983 fo r failing to supervise Berkowitz because Appellants had not alleged facts to support a finding of deliberate indifference to his actions. The court found no § 1985 conspiracy to selectively enforce the Ohio nuisance statute against Appellants as a pretext for discrimination because they failed to allege that Williams acted outside his scope of employ ment as mayor to satisfy the exception to the intracorporate conspiracy doctrine. Finally, th e court rejected Appella nts’ conversion claim because the facts alleged did not show that Williams’ behavior was sufficiently wanton or reckless to qualify for the exception to statutory immunity for employees of political subdivisions, see Ohio Rev. Code § 2744.03(A)(6), or that a statutory exception applied to the City’s immunity, see Ohio Rev. Code § 2744.02(B). This appeal followed.
II. Appellants raise two issues. First, they challenge the state court’s order granting Relator’s preliminary injunction. That order is moot however, because as the district court noted, it expired on June 1, 2015, per statutory fiat. See Ohio Rev. Code § 3767.06(A). We therefore lack jurisdiction over this claim. See Univ. of Tex. v. Camenisch , 451 U.S. 390, 398 (1981). Furthermore, Appellants also lack st anding, because as of December 9, 2015, they no longer had any ownership inte rest in the property. See Brownlow v. Schwartz , 261 U.S. 216, 217-18 (1923). Appellants also challenge the district court’ s dismissal of their counterclaims against the City and their third-party claims against W illiams. Because Berkowitz brought the nuisanceNo. 17-3458, Ohio ex rel. Keith D. Moore, et al. v. Brahma Investment Group, Inc. et al.

-5- action on behalf of the State, not the City, all claims against the City and Williams were properly dismissed. See Ohio Rev. Code § 3767.03; Cady v. Arenac Cty. , 574 F.3d 334, 345 (6th Cir. 2009) (holding that county prosecutor was acting as agent of the State of Michigan rather than the county when he issued criminal charges); Pusey v. City of Youngstown , 11 F.3d 652, 659 (6th Cir. 1993) (same). Under Monell , the City cannot be liable fo r Berkowitz’s actions simply because it is Berkowitz’s employer, and Willi ams cannot be liable simply because he was Berkowitz’s supervisor. See Monell v. Dep’t of Soc. Servs. , 436 U.S. 658, 690 (1978). Appellants have not alleged a specific custom or policy of allowing Berkowitz (or any Law Director) to bring illegal actions or turn a bli nd eye to the filing of discriminatory lawsuits. See id. at 694 (to establish municipal liability un der § 1983, a plaintiff must identify a municipal policy or custom that caused the plaintiff’s injury); Amerson v. Waterford Twp. , 562 F. App’x 484, 492 (6th Cir. 2014) (failure-to- supervise claim requires the plai ntiff to show that the city acted with deliberate indifference to the constitutional violation a nd that it was the moving force behind the violation). In short, even if Relator violated Appellant s’ federal and st ate rights, the City and Williams are not liable. This leaves solely the possibility of a conspi racy claim in violation of § 1985(3). To state such a claim, plaintiffs must pr ove a conspiracy to deprive a pe rson or class of persons of the equal protection of the laws, an d an act in furtherance of th e conspiracy which causes the constitutional deprivation. Johnson v. Hills & Dales Gen. Hosp. , 40 F.3d 837, 839 (6th Cir. 1994). Appellants have made only conclusory allegations to support their claim of illegal discriminatory conduct. Although th ey allege that the majority sh areholders of Brahma and Cal Pac are of Asian-Indian ethnicity who espouse the Hindu religion they do not allege that the City, Williams, and their agents even knew of th e ethnicity and religious orientation of theNo. 17-3458, Ohio ex rel. Keith D. Moore, et al. v. Brahma Investment Group, Inc. et al.

-6- property owners, or that th ey treated similarly situat ed persons differently. See 42 U.S.C. § 1985(3); Estate of Smithers ex rel. Norris v. City of Flint , 602 F.3d 758, 765 (6th Cir. 2010) (“To sustain a claim under section 1985(3), a cl aimant must prove both membership in a protected class and discrimination on account of it.”); Bartell v. Lohiser , 215 F.3d 550, 559 (6th Cir. 2000) (§ 1985(3) requires that a claimant demonstrate that the conspiracy was motivated by a class-based animus). Furthermore, Appellants made only concluso ry allegations to support their claim of illegal, discriminatory conduct, and made no alle gations of a shared plan or agreement among Berkowitz (acting as an agent of the State), the City, and Williams to violate their federal civil rights. See Gutierrez v. Lynch , 826 F.2d 1534, 1538-39 (6th Cir. 1987) (§ 1985 conspiracy claims must be pled with specificity). See generally Fritz v. Charter Twp. of Comstock , 592 F.3d 718, 722 (6th Cir. 2010) (Rule 12 (c) applies the same standard s as for a motion under Rule 12(b)(6); the plaintiff must plead sufficient fact ual matter to render the claim plausible, a legal conclusion couched as a factual allegation is not sufficient). Finally, as the district court held, Appellants have not set fo rth sufficient facts to show that Williams was engaged in personal pursuits rather than acting within the scope of his employment as mayor to save this claim fr om the intracorporate conspiracy doctrine. See Johnson , 40 F.3d at 839-40, 841 (6th Cir. 1994) (int racorporate conspir acy doctrine holds that employees who work for the same agency cannot conspire with themselves; creating an exception where employees act outside the course of their employment).
III. For the foregoing reasons, we AFFIRM the judgment of the district court.