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Motion No. 5133146
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO DISMISS
November 22,2023 16:12
By: ELLIOTT MARQUIS YOUNG 0074275
Confirmation Nbr. 3025443
JAMIE BAILEY CV 23 985597
vs.
Judge: ASHLEY KILBANE
CUYAHOGA COMMUNITY COLLEGE, ET AL.
Pages Filed: 12
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
JAMIE BAILEY ) CASE NO. CV-23-985597
)
Plaintiff, ) JUDGE ASHLEY KILBANE
)
vs. )
) MOTION OF DEFENDANTS
CUYAHOGA COMMUNITY ) TO DISMISS PLAINTIFF’S
COLLEGE, ET AL. ) COMPLAINT
)
Defendants. )
Now come Defendants Cuyahoga Community College (“Tri-C”), Clayton Harris (“Chief
Harris”), and Shari Brazile (“Ms. Brazile”) (collectively referred to as the “Defendants”), by and
through undersigned counsel, and hereby move this Honorable Court for an Order dismissing the
Complaint filed by Plaintiff Jaime Bailey (“Plaintiff’) for failure to state a claim upon which relief
can be granted pursuant to Civil Rule 12(B)(6).
The grounds for this Motion are more fully set forth in the attached Memorandum in
Support which is incorporated herein by reference.
Respectfully submitted,
/s/ E. Mark Young________________
E. Mark Young (0074275)
Roetzel & Andress, LPA
1375 E. 9th Street
One Cleveland Center, 10th Floor
Cleveland, Ohio 44114
Telephone: (216) 623-0150
Facsimile: (216) 623-0134
Email: emyoung@ralaw.com
Counselfor Defendants,
Cuyahoga Community College,
Clayton Harris, and Shari Brazile
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IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
JAMIE BAILEY ) CASE NO. CV-23-985597
)
Plaintiff, ) JUDGE ASHLEY KILBANE
)
vs. )
) MEMORANDUM IN SUPPORT OF
CUYAHOGA COMMUNITY ) MOTION OF DEFENDANTS
COLLEGE, ET AL. ) TO DISMISS PLAINTIFF’S
) COMPLAINT
Defendants. )
I. INTRODUCTION
Plaintiff filed a six-count Complaint against Tri-C and its two employees, Chief Harris and
Ms. Brazile, for race discrimination [Count I], race-based harassment [Count II], retaliation [Count
III], interfering with civil rights under Ohio Revised Code § 2921.45 and § 2307.60 [Count IV],
aiding and abetting [Count V, against Chief Harris and Ms. Brazile], and fraud [Count VI, against
Chief Harris and Ms. Brazile]. As set forth below, Tri-C is entitled to the statutory immunity
provided by Ohio's Political Subdivision Tort Liability Act, codified in the Ohio Revised Code
Chapter 2744. That statutory immunity extends to Tri-C's employees, Chief Harris and Ms.
Brazile, who performed their duties while acting in their official capacities at Tri-C, thereby
warranting dismissal of the Complaint in its entirety.
II. RELEVANT FACTUAL ALLEGATIONS
In 2011, Tri-C hired Plaintiff as a Police Officer. (Complaint, 8). In 2013, Plaintiff (a
Caucasian male) was promoted to Detective Bureau to work as the lead Detective by Defendant
Chief Harris (an African American male). (Complaint, 9). In 2020, Chief Harris subsequently
designated Plaintiff the Supervisor of Tri-C's Detective Bureau. (Id.) Plaintiff asserts that as a
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result of his actions in investigating Lieutenants Ronald Wynne and Aliston Moreland (former
employees of Tri-C), based on an anonymous tip received in June of 2020 accusing Lieutenants
Wynne and Moreland of stealing time from Tri-C (i.e., receiving pay for time not worked), Plaintiff
was subjected to discrimination, race-based harassment, and retaliation through a conspiracy
between Chief Harris and Ms. Brazile. (Complaint, 11-14-17, 27, 30-72).
Plaintiff's recitation of the Ohio Revised Code and conclusory assertions regarding
reckless, wanton, and malicious conduct attributed to Tri-C’s employees in their official capacities
cannot evade or circumvent the inevitable conclusion that Plaintiff’s claims fail as a matter of law
under Ohio Revised Code Chapter 2744.
As set forth below, the deficiencies contained in Plaintiff’s Complaint warrant dismissal as
a matter of law.
III. LAW AND ARGUMENT
A. The Standard For A Motion to Dismiss
A motion to dismiss must be granted when it appears that a plaintiff can prove no set of
facts in support of his claim which would entitle him to relief. O 'Brien v. University Community
Tenants Union, Inc., 42 Ohio St.2d 242, syllabus (1975). In evaluating and deciding a motion to
dismiss, the court accepts as true all factual allegations in the complaint and makes all reasonable
inferences in favor of the non-moving party. Mitchell v. Lawson Milk Company, 40 Ohio St.3d
190, 192 (1988). However, these reasonable inferences have objective limitations. Namely,
unsupported conclusions are not taken as admitted by a motion to dismiss and are not sufficient to
withstand such a motion. Mitchell, at 193. A complaint cannot survive a motion to dismiss through
a “mere incantation of an abstract legal standard.” Williams v. Ohio Edison, 8th Dist., Cuyahoga
Case No. 92840, 2009-Ohio-5702, 15. Instead, the claims set forth in a complaint must be
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plausible, rather than conceivable. Id. citing Bell Atlantic Corporation v. Twombly, 550 U.S. 544,
547, 127 S.Ct. 1955 (2007). In order to survive a motion to dismiss under these heightened
pleading standards, relief requires more than labels and conclusion, and a formulaic recitation of
the elements of a cause of action will not suffice. Id., at 555. “Thredbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal,
556 U.S. 662, 678, 129 S.Ct. 1937 (2009). Factual allegations must be enough to raise a right of
relief above a speculative level. Twombly, at 555.
The Ohio Supreme Court, in Mitchell v. Lawson Milk Company, encouraged the granting
of motions to dismiss by stating “[w]e do not serve the interest of employees, employers or the
administration of justice in the already over-docketed courts of Ohio if we permit claims to go
forward which, on the face of the pleading, have no chance of success.” Mitchell, at 193.
B. Ohio's Political Subdivision Tort Liability Act Provides Tri-C with Immunity from
Plaintiffs Claims
Plaintiffs claims are barred, as a matter of law, by Ohio's Political Subdivision Tort
Liability Act (the “Act”). Political subdivisions are immune from suit, with the exception of
limited situations provided for by statute. Campolieti v. City of Cleveland, 184 Ohio App.3d 419
(8th Dist. 2009), 2009-Ohio-5224, 32 citing Hodge v. City of Cleveland, 8th Dist., Cuyahoga
Case No. 72283, 1998 WL 742171 * 3-4 (October 22, 1998). The Act, which is codified in R.C.
Chapter 2744, provides a comprehensive framework for immunity to political subdivisions.
McConnell v. Dudley, 158 Ohio St.3d 388, 144 N.E.3d 369, 2019-Ohio-4740, 20, Rankin v.
Cuyahoga County Department of Children and Family Services., 118 Ohio St.3d 392, 889 N.E.2d
521, 2008-Ohio-2567, 8, 32-33; Wilson v. Stark County Dept. ofHuman Services, 70 Ohio St.3d
450, 452-453, 639 N.E.2d 105 (1994). Specifically, the Act “applies to causes of action against
political subdivisions or their employees for injuries to persons on or after November 20, 1985.”
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Lewis v. City of Cleveland, 8th Dist., 89 Ohio App.3d 136, 137, 623 N.E.2d 1233 (1993). Whether
a political subdivision is immune from liability is a question of law that should be resolved by the
trial court. Sampson v. Cuyahoga Metropolitan Housing Authority, 8th Dist., Cuyahoga Case No.
93441, 2010-Ohio-1214, 22; Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862.
The Ohio Supreme Court applies a three-tiered analysis for determining whether a political
subdivision can be held liable for a claim under the Act. Rankin, at 8 citing Hortman v.
Miamisburg, 110 Ohio St.3d 194, 852 N.E.2d 716, 2006-Ohio 4251, 9. In Ohio Bell Telephone
Co. v. Leon Riley, Inc., 8th Dist., Cuyahoga Case No. 94771, 2010-Ohio-5371, the court detailed
the applicable three-tiered analysis for determining immunity under the Act:
“To determine whether a political subdivision enjoys immunity
under the Political Subdivision Tort Liability Act, as codified in
R.C. Chapter 2744, we employ the three-tiered analysis set forth in
Colbert v. Cleveland, 99 Ohio St.3d 215, 2003 Ohio-3319.
The first tier is the general rule that a political subdivision is immune
from liability incurred in performing either a governmental function
or proprietary function. [Greene County. Agricultural Soc. v.
Liming, 89 Ohio St.3d 551, 556-557, 2000-Ohio-0486, 733 N.E.2d
1141]; R.C. 2744.02(A)(1)...
The second tier ofthe analysis requires a court to determine whether
any of the five exceptions to immunity listed in R.C. 2744.02(B)
apply to expose the political subdivision to liability.” “The express
exceptions under R.C. 2744.02(B) are: (1) the negligent operation
of a motor vehicle by an employee, R.C. 2744.02(B)(1); (2) the
negligent performance of proprietary functions, R.C.
2744.02(B)(2); (3) the negligent failure to keep public roads open
and in repair, R.C. 2744.02(B)(3); (4) the negligence of employees
occurring within or on the grounds of certain buildings used in
connection with the performance of governmental functions, R.C.
2744.02(B)(4); (5) express imposition of liability by statute. R.C.
2744.02(B)(5).
If any of the exceptions to immunity in R.C. 2744.02(B) do apply
and no defense to that section protects the political subdivision from
liability, *** the third tier of the analysis requires a court to
determine whether any of the defenses in R.C. 2744.03 apply,
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thereby, providing the political subdivision a defense against
liability.” Colbert at 9.
Ohio Bell Telephone, 2010-Ohio-5371, 8-11.
1. First Tier- Tri-C is a Political Subdivision Entitled to Immunity Under R.C.
§ 2744.02(A)(1)
As the Ohio Supreme Court explained, the first tier of the three-tiered analysis is based
upon the plain language of R.C. § 2744.02(A)(1), which states, in pertinent part:
“Except 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 for any act or omission of the political subdivision or any
employee of the political subdivision in connection with a governmental or
proprietary function.”
Rankin, at 19-12; R.C. § 2744.02(A)(1)).
There can be no dispute that, under the first tier, Tri-C is a political subdivision entitled to full and
absolute immunity under R.C. § 2744.01. See R.C. § 3354.01 (identifying and defining a
“community college district” as a political subdivision). The 8th District Court of Appeals has
previously recognized Tri-C as a political subdivision. Scott v. Dennis, 8th Dist., Cuyahoga County
No. 94685, 2011-Ohio-12, 15 (“As we have previously recognized, Tri-C is a political
subdivision and therefore enjoys blanket immunity under the first tier.”).
Consequently, Tri-C is entitled to the immunity protections statutorily afforded by the Act.
2. Second Tier- None of The Five Enumerated Exceptions to Immunity Apply
Under R.C. § 2744.02(B)
R.C. § 2744.02(A)(1) broadly provides that political subdivisions cannot be held liable for
any tort injury allegedly caused by a political subdivision or any employee of a political
subdivision in connection with the performance of a governmental or proprietary function unless
one of the five exceptions in R.C. § 2744.02(B) applies. The threshold inquiry for any tort claim
against a political subdivision, therefore, is whether any of the five exceptions in R.C. § 2744.02(B)
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apply. Id. Plaintiff’s claims do not involve the operation of a motor vehicle [R.C. 2744.02(B)(1)],
a failure to keep public roads in repair [R.C. § 2744.02(B)(3)], or a physical defect [R.C.
§ 2744.02(B)(4).
While the exception set forth in R.C. § 2744.02(B)(2) appears to apply on its face, an
analysis of that subsection confirms that language is inapplicable and does not provide a basis for
liability against Tri-C.
R.C. § 2744.02(B)(2) states that:
Except as otherwise provided in section 3314.07 and 3746.24 of the Revised Code, political
subdivisions are liable for injury, death, or loss to person or property that is caused by the
negligent performance of acts by their employees with respect to proprietary functions of
the political subdivisions.
The exception set forth in R.C. § 2477.02(B)(2) is inapplicable because the provision of higher
education, and its related services, are not a proprietary function, but rather determined to be a
governmental function subject to full, blanket immunity. Scott, at 19-21.
Because Plaintiff’s Complaint asserts claims under R.C. § 4112.02, those claims, on their
face, appear to invoke the exception set forth in R.C. § 2477.02(B)(5), an analysis of the applicable
defenses are addressed below demonstrating that immunity applies to Tri-C.
3. Third Tier- Identification and Application of the Defenses under R.C.
§ 2744.03
In viewing the assertion of discrimination under R.C. § 4112.02 against Tri-C in the light
most favorable to Plaintiff, that assertion may trigger the exception set forth in R.C.
§ 2744.02(B)(5) which states:
In addition to the circumstances described in divisions (B)(1) to (4) of this section, a
political subdivision is liable for injury, death, or loss to person or property when civil
liability is expressly imposed upon the politic subdivision by a section of the Revised Code,
including, but not limited to, sections 2743.02 and 5591.37 of the Revised Code. Civil
liability shall not be construed to exist under another section of the Revised Code merely
because that section imposes a responsibility or mandatory duty upon a political
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subdivision, because that section provides for a criminal penalty, because of a general
authorization in that section that a political subdivision may sue or be sued, or because that
section uses the term “shall” in a provision pertaining to a political subdivision.
However, that exception falls squarely within the purview of the available defenses set forth in
R.C. § 2744.03, which states in pertinent part:
(A) In a civil action brought against a political subdivision or an employee of a political
subdivision to recover damages for injury, death, or loss to person or property
allegedly caused by an act or omission in connection with a governmental or
proprietary function, the following defenses or immunities may be asserted to
establish nonliability:
***
(2) The political subdivision is immune from liability if the conduct of the
employee involved, other than negligent conduct, that gave rise to the claim
of liability was required by law or authorized by law, or if the conduct of
the employee involved that gave rise to the claim of liability was
necessary or essential to the exercise of powers of the political
subdivision or employee. (Emphasis added).
(3) The political subdivision is immune from liability if the action or failure
to act by the employee involved that gave rise to the claim of liability
was within the discretion of the employee with respect to the policy
making, planning, or enforcement powers by virtue of the duties and
responsibilities of the office or position of the employee. (Emphasis
added),
***
(5) The political subdivision is immune from liability if the injury, death, or
loss to person or property resulted from the exercise of judgment or
discretion in determining whether to acquire, or how to use, equipment,
supplies, materials, personnel, facilities, and other resources unless the
judgment or discretion was exercised with malicious purpose, in bad
faith, or in a wanton or reckless manner. (Emphasis added).
(6) In addition to any immunity or defense referred to in division (A)(7) of this
section and in circumstances not covered by that division or sections
3314.07 and 3746.24 of the Revised Code, the employee is immune from
liability 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;
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(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. Civil liability shall not be construed to exist
under another section of the Revised Code merely because that
section imposes a responsibility or mandatory duty upon an
employee, because that section provides for a criminal penalty,
because of a general authorization in that section that an employee
may sue and be sued, or because the section uses that term “shall”
in a provision pertaining to an employee.
Other than recitations of the Ohio Revised Code and conclusory assertions, the Complaint fails to
demonstrate any claims against Chief Harris or Ms. Brazile for which relief can be granted.
Phrased another way, the claims set forth in the Complaint do not allege any conduct by Chief
Harris of Ms. Brazile that are outside, let alone manifestly outside, the scope, responsibilities, and
roles as the Chief of Police or as District Manager, Employee and Labor Relations, respectively,
at Tri-C. (See Complaint). Nor do the assertions contained in the Complaint allege that Chief
Harris, in his capacity as the Chief of Police for Tri-C, lacked the authority or discretion to assign
or re-assign security personnel throughout the footprint of Tri-C, send personnel for training, or
promote staff. (Complaint, 27). As set forth in the Complaint, Plaintiff was certainly satisfied
when Chief Harris promoted Plaintiff at Tri-C and subsequently designated him as the Supervisor
of Tri-C’s Detective Bureau. (Complaint, 9) (“On March 18, 2013, Defendant Harris promoted
Plaintiff by transferring him to the Detective Bureau to work as the lead Detective, and on January
2, 2020, Harris designated Plaintiff the Supervisor of Tri-C’s Detective Bureau.”).
Because Plaintiff’s assertions against Tri-C’s employees solely relate to conduct in their
official capacities, R.C. 2744.02(A) applies, entitles them to political subdivision immunity, and
warrants a full dismissal of Plaintiff’s claims against them.
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C. Tri-C's Employees Are Also Entitled to Immunity Under Ohio's Political
Subdivision Tort Liability Act
Claims commenced against employees of a political subdivision in their official capacity
are considered and determined to be actions against the political subdivision entity itself, thereby
entitling those employees to the same immunity as the political subdivision. Newton v. City of
Cleveland Law Department, 8th Dist., Cuyahoga Case No. 102042, 2015-Ohio-1460, 17 citing
Lambert v. Clancy, 125 Ohio St.3d 231, 927 N.E.2d 585, 2010-Ohio-1483, 16. “For purposes of
political-subdivision immunity, a suit against a political-subdivision employee in his or her official
capacity is treated the same as a suit against the political subdivision itself, and [the] three-tiered
analysis applies.” Alcus v. Bainbridge Township, 2020-Ohio-543, 141. Moreover, the same
analysis performed in concluding that immunity applies to Tri-C with respect to Plaintiffs claims
also applies to Chief Harris and Ms. Brazile, as employees of Tri-C.
In evaluating whether Plaintiffs claims against Chief Harris and Ms. Brazile are in their
official capacity as employees of Tri-C, this Court should review and focus on the language utilized
in the Complaint. A facial review of the Complaint confirm and affirms that Chief Harris and Ms.
Brazile were sued by Plaintiff in their capacities as the “Police Chief for Cuyahoga County
Community College Campus Police and Security Services Department” and as the “District
Manager, Employee and Labor Relations Cuyahoga Community College,” respectively.
(Complaint, Case Caption). Additionally, the language set forth in Plaintiffs allegations make
clear that his claims against ChiefHarris and Ms. Brazile are only in their official capacities at Tri-
C. (Complaint, 3 “Plaintiff at all times relevant hereto, Defendant Clayton Harris, who is African
American and Defendant's Tri-C's Campus Police and Security Services Department Police
Chief...” and 4 (“At all times relevant hereto, Defendant Shari Brazile of Tri-C's Human
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Resources department...”) Because Chief Harris and Ms. Brazile were sued in their official
capacities for alleged actions performed in their official capacities, they are entitled to the same
immunity protections provided for political subdivisions to the same extent as Tri-C in accordance
with Ohio's Political Subdivision Tort Liability Act.
IV. CONCLUSION
Plaintiffs vague and unsupported allegations are void of any actionable conduct
attributable to Tri-C or its employees, Chief Harris and Ms. Brazile, thereby warranting dismissal
of the Complaint based on the statutory immunity afforded by Ohio's Political Subdivision Tort
Liability Act. Based upon the foregoing arguments and authorities, Defendants respectfully
requests that this Court issue an Order dismissing Plaintiffs Complaint with prejudice.
Respectfully submitted,
/s/ E. Mark Young_________
E. Mark Young (0074275)
Roetzel & Andress, LPA
1375 E. 9th Street
One Cleveland Center, 10th Floor
Cleveland, Ohio 44114
Telephone: (216) 623-0150
Facsimile: (216) 623-0134
Email: emyoung@ralaw.com
Counselfor Defendants,
Cuyahoga Community College,
Clayton Harris, and Shari Brazile
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CERTIFICATE OF SERVICE
I hereby certify that on this 22nd day of November 2023, a copy of the foregoing Motion
of Defendants to Dismiss Plaintiff’s Complaint was filed electronically. Notice of this filing will
be sent by operation of the Court's electronic filing system to all parties indicated on the electronic
filing receipt. Parties may access this filing through the Court's system.
/s/ E. Mark Young________________
E. Mark Young (0074275)
Counselfor Defendants,
Cuyahoga Community College,
Clayton Harris, and Shari Brazile
Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 98559EZ Confirmation Nbr. 3025443 / CLKXL
Preview
Motion No. 5133146 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO DISMISS November 22,2023 16:12 By: ELLIOTT MARQUIS YOUNG 0074275 Confirmation Nbr. 3025443 JAMIE BAILEY CV 23 985597 vs. Judge: ASHLEY KILBANE CUYAHOGA COMMUNITY COLLEGE, ET AL. Pages Filed: 12 Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597 / Confirmation Nbr. 3025443 / CLKXL IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO JAMIE BAILEY ) CASE NO. CV-23-985597 ) Plaintiff, ) JUDGE ASHLEY KILBANE ) vs. ) ) MOTION OF DEFENDANTS CUYAHOGA COMMUNITY ) TO DISMISS PLAINTIFF’S COLLEGE, ET AL. ) COMPLAINT ) Defendants. ) Now come Defendants Cuyahoga Community College (“Tri-C”), Clayton Harris (“Chief Harris”), and Shari Brazile (“Ms. Brazile”) (collectively referred to as the “Defendants”), by and through undersigned counsel, and hereby move this Honorable Court for an Order dismissing the Complaint filed by Plaintiff Jaime Bailey (“Plaintiff’) for failure to state a claim upon which relief can be granted pursuant to Civil Rule 12(B)(6). The grounds for this Motion are more fully set forth in the attached Memorandum in Support which is incorporated herein by reference. Respectfully submitted, /s/ E. Mark Young________________ E. Mark Young (0074275) Roetzel & Andress, LPA 1375 E. 9th Street One Cleveland Center, 10th Floor Cleveland, Ohio 44114 Telephone: (216) 623-0150 Facsimile: (216) 623-0134 Email: emyoung@ralaw.com Counselfor Defendants, Cuyahoga Community College, Clayton Harris, and Shari Brazile Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597 / Confirmation Nbr. 3025443 / CLKXL IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO JAMIE BAILEY ) CASE NO. CV-23-985597 ) Plaintiff, ) JUDGE ASHLEY KILBANE ) vs. ) ) MEMORANDUM IN SUPPORT OF CUYAHOGA COMMUNITY ) MOTION OF DEFENDANTS COLLEGE, ET AL. ) TO DISMISS PLAINTIFF’S ) COMPLAINT Defendants. ) I. INTRODUCTION Plaintiff filed a six-count Complaint against Tri-C and its two employees, Chief Harris and Ms. Brazile, for race discrimination [Count I], race-based harassment [Count II], retaliation [Count III], interfering with civil rights under Ohio Revised Code § 2921.45 and § 2307.60 [Count IV], aiding and abetting [Count V, against Chief Harris and Ms. Brazile], and fraud [Count VI, against Chief Harris and Ms. Brazile]. As set forth below, Tri-C is entitled to the statutory immunity provided by Ohio's Political Subdivision Tort Liability Act, codified in the Ohio Revised Code Chapter 2744. That statutory immunity extends to Tri-C's employees, Chief Harris and Ms. Brazile, who performed their duties while acting in their official capacities at Tri-C, thereby warranting dismissal of the Complaint in its entirety. II. RELEVANT FACTUAL ALLEGATIONS In 2011, Tri-C hired Plaintiff as a Police Officer. (Complaint, 8). In 2013, Plaintiff (a Caucasian male) was promoted to Detective Bureau to work as the lead Detective by Defendant Chief Harris (an African American male). (Complaint, 9). In 2020, Chief Harris subsequently designated Plaintiff the Supervisor of Tri-C's Detective Bureau. (Id.) Plaintiff asserts that as a Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597/ Confirmation Nbr. 3025443 / CLKXL result of his actions in investigating Lieutenants Ronald Wynne and Aliston Moreland (former employees of Tri-C), based on an anonymous tip received in June of 2020 accusing Lieutenants Wynne and Moreland of stealing time from Tri-C (i.e., receiving pay for time not worked), Plaintiff was subjected to discrimination, race-based harassment, and retaliation through a conspiracy between Chief Harris and Ms. Brazile. (Complaint, 11-14-17, 27, 30-72). Plaintiff's recitation of the Ohio Revised Code and conclusory assertions regarding reckless, wanton, and malicious conduct attributed to Tri-C’s employees in their official capacities cannot evade or circumvent the inevitable conclusion that Plaintiff’s claims fail as a matter of law under Ohio Revised Code Chapter 2744. As set forth below, the deficiencies contained in Plaintiff’s Complaint warrant dismissal as a matter of law. III. LAW AND ARGUMENT A. The Standard For A Motion to Dismiss A motion to dismiss must be granted when it appears that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief. O 'Brien v. University Community Tenants Union, Inc., 42 Ohio St.2d 242, syllabus (1975). In evaluating and deciding a motion to dismiss, the court accepts as true all factual allegations in the complaint and makes all reasonable inferences in favor of the non-moving party. Mitchell v. Lawson Milk Company, 40 Ohio St.3d 190, 192 (1988). However, these reasonable inferences have objective limitations. Namely, unsupported conclusions are not taken as admitted by a motion to dismiss and are not sufficient to withstand such a motion. Mitchell, at 193. A complaint cannot survive a motion to dismiss through a “mere incantation of an abstract legal standard.” Williams v. Ohio Edison, 8th Dist., Cuyahoga Case No. 92840, 2009-Ohio-5702, 15. Instead, the claims set forth in a complaint must be Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597/ Confirmation Nbr. 3025443 / CLKXL plausible, rather than conceivable. Id. citing Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955 (2007). In order to survive a motion to dismiss under these heightened pleading standards, relief requires more than labels and conclusion, and a formulaic recitation of the elements of a cause of action will not suffice. Id., at 555. “Thredbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009). Factual allegations must be enough to raise a right of relief above a speculative level. Twombly, at 555. The Ohio Supreme Court, in Mitchell v. Lawson Milk Company, encouraged the granting of motions to dismiss by stating “[w]e do not serve the interest of employees, employers or the administration of justice in the already over-docketed courts of Ohio if we permit claims to go forward which, on the face of the pleading, have no chance of success.” Mitchell, at 193. B. Ohio's Political Subdivision Tort Liability Act Provides Tri-C with Immunity from Plaintiffs Claims Plaintiffs claims are barred, as a matter of law, by Ohio's Political Subdivision Tort Liability Act (the “Act”). Political subdivisions are immune from suit, with the exception of limited situations provided for by statute. Campolieti v. City of Cleveland, 184 Ohio App.3d 419 (8th Dist. 2009), 2009-Ohio-5224, 32 citing Hodge v. City of Cleveland, 8th Dist., Cuyahoga Case No. 72283, 1998 WL 742171 * 3-4 (October 22, 1998). The Act, which is codified in R.C. Chapter 2744, provides a comprehensive framework for immunity to political subdivisions. McConnell v. Dudley, 158 Ohio St.3d 388, 144 N.E.3d 369, 2019-Ohio-4740, 20, Rankin v. Cuyahoga County Department of Children and Family Services., 118 Ohio St.3d 392, 889 N.E.2d 521, 2008-Ohio-2567, 8, 32-33; Wilson v. Stark County Dept. ofHuman Services, 70 Ohio St.3d 450, 452-453, 639 N.E.2d 105 (1994). Specifically, the Act “applies to causes of action against political subdivisions or their employees for injuries to persons on or after November 20, 1985.” Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597/ Confirmation Nbr. 3025443 / CLKXL Lewis v. City of Cleveland, 8th Dist., 89 Ohio App.3d 136, 137, 623 N.E.2d 1233 (1993). Whether a political subdivision is immune from liability is a question of law that should be resolved by the trial court. Sampson v. Cuyahoga Metropolitan Housing Authority, 8th Dist., Cuyahoga Case No. 93441, 2010-Ohio-1214, 22; Conley v. Shearer, 64 Ohio St.3d 284, 292, 595 N.E.2d 862. The Ohio Supreme Court applies a three-tiered analysis for determining whether a political subdivision can be held liable for a claim under the Act. Rankin, at 8 citing Hortman v. Miamisburg, 110 Ohio St.3d 194, 852 N.E.2d 716, 2006-Ohio 4251, 9. In Ohio Bell Telephone Co. v. Leon Riley, Inc., 8th Dist., Cuyahoga Case No. 94771, 2010-Ohio-5371, the court detailed the applicable three-tiered analysis for determining immunity under the Act: “To determine whether a political subdivision enjoys immunity under the Political Subdivision Tort Liability Act, as codified in R.C. Chapter 2744, we employ the three-tiered analysis set forth in Colbert v. Cleveland, 99 Ohio St.3d 215, 2003 Ohio-3319. The first tier is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. [Greene County. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 556-557, 2000-Ohio-0486, 733 N.E.2d 1141]; R.C. 2744.02(A)(1)... The second tier ofthe analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability.” “The express exceptions under R.C. 2744.02(B) are: (1) the negligent operation of a motor vehicle by an employee, R.C. 2744.02(B)(1); (2) the negligent performance of proprietary functions, R.C. 2744.02(B)(2); (3) the negligent failure to keep public roads open and in repair, R.C. 2744.02(B)(3); (4) the negligence of employees occurring within or on the grounds of certain buildings used in connection with the performance of governmental functions, R.C. 2744.02(B)(4); (5) express imposition of liability by statute. R.C. 2744.02(B)(5). If any of the exceptions to immunity in R.C. 2744.02(B) do apply and no defense to that section protects the political subdivision from liability, *** the third tier of the analysis requires a court to determine whether any of the defenses in R.C. 2744.03 apply, Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597/ Confirmation Nbr. 3025443 / CLKXL thereby, providing the political subdivision a defense against liability.” Colbert at 9. Ohio Bell Telephone, 2010-Ohio-5371, 8-11. 1. First Tier- Tri-C is a Political Subdivision Entitled to Immunity Under R.C. § 2744.02(A)(1) As the Ohio Supreme Court explained, the first tier of the three-tiered analysis is based upon the plain language of R.C. § 2744.02(A)(1), which states, in pertinent part: “Except 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 for any act or omission of the political subdivision or any employee of the political subdivision in connection with a governmental or proprietary function.” Rankin, at 19-12; R.C. § 2744.02(A)(1)). There can be no dispute that, under the first tier, Tri-C is a political subdivision entitled to full and absolute immunity under R.C. § 2744.01. See R.C. § 3354.01 (identifying and defining a “community college district” as a political subdivision). The 8th District Court of Appeals has previously recognized Tri-C as a political subdivision. Scott v. Dennis, 8th Dist., Cuyahoga County No. 94685, 2011-Ohio-12, 15 (“As we have previously recognized, Tri-C is a political subdivision and therefore enjoys blanket immunity under the first tier.”). Consequently, Tri-C is entitled to the immunity protections statutorily afforded by the Act. 2. Second Tier- None of The Five Enumerated Exceptions to Immunity Apply Under R.C. § 2744.02(B) R.C. § 2744.02(A)(1) broadly provides that political subdivisions cannot be held liable for any tort injury allegedly caused by a political subdivision or any employee of a political subdivision in connection with the performance of a governmental or proprietary function unless one of the five exceptions in R.C. § 2744.02(B) applies. The threshold inquiry for any tort claim against a political subdivision, therefore, is whether any of the five exceptions in R.C. § 2744.02(B) Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597/ Confirmation Nbr. 3025443 / CLKXL apply. Id. Plaintiff’s claims do not involve the operation of a motor vehicle [R.C. 2744.02(B)(1)], a failure to keep public roads in repair [R.C. § 2744.02(B)(3)], or a physical defect [R.C. § 2744.02(B)(4). While the exception set forth in R.C. § 2744.02(B)(2) appears to apply on its face, an analysis of that subsection confirms that language is inapplicable and does not provide a basis for liability against Tri-C. R.C. § 2744.02(B)(2) states that: Except as otherwise provided in section 3314.07 and 3746.24 of the Revised Code, political subdivisions are liable for injury, death, or loss to person or property that is caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions. The exception set forth in R.C. § 2477.02(B)(2) is inapplicable because the provision of higher education, and its related services, are not a proprietary function, but rather determined to be a governmental function subject to full, blanket immunity. Scott, at 19-21. Because Plaintiff’s Complaint asserts claims under R.C. § 4112.02, those claims, on their face, appear to invoke the exception set forth in R.C. § 2477.02(B)(5), an analysis of the applicable defenses are addressed below demonstrating that immunity applies to Tri-C. 3. Third Tier- Identification and Application of the Defenses under R.C. § 2744.03 In viewing the assertion of discrimination under R.C. § 4112.02 against Tri-C in the light most favorable to Plaintiff, that assertion may trigger the exception set forth in R.C. § 2744.02(B)(5) which states: In addition to the circumstances described in divisions (B)(1) to (4) of this section, a political subdivision is liable for injury, death, or loss to person or property when civil liability is expressly imposed upon the politic subdivision by a section of the Revised Code, including, but not limited to, sections 2743.02 and 5591.37 of the Revised Code. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon a political Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597/ Confirmation Nbr. 3025443 / CLKXL subdivision, because that section provides for a criminal penalty, because of a general authorization in that section that a political subdivision may sue or be sued, or because that section uses the term “shall” in a provision pertaining to a political subdivision. However, that exception falls squarely within the purview of the available defenses set forth in R.C. § 2744.03, which states in pertinent part: (A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by an act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability: *** (2) The political subdivision is immune from liability if the conduct of the employee involved, other than negligent conduct, that gave rise to the claim of liability was required by law or authorized by law, or if the conduct of the employee involved that gave rise to the claim of liability was necessary or essential to the exercise of powers of the political subdivision or employee. (Emphasis added). (3) The political subdivision is immune from liability if the action or failure to act by the employee involved that gave rise to the claim of liability was within the discretion of the employee with respect to the policy making, planning, or enforcement powers by virtue of the duties and responsibilities of the office or position of the employee. (Emphasis added), *** (5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner. (Emphasis added). (6) In addition to any immunity or defense referred to in division (A)(7) of this section and in circumstances not covered by that division or sections 3314.07 and 3746.24 of the Revised Code, the employee is immune from liability 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; Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597/ Confirmation Nbr. 3025443 / CLKXL (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. Civil liability shall not be construed to exist under another section of the Revised Code merely because that section imposes a responsibility or mandatory duty upon an employee, because that section provides for a criminal penalty, because of a general authorization in that section that an employee may sue and be sued, or because the section uses that term “shall” in a provision pertaining to an employee. Other than recitations of the Ohio Revised Code and conclusory assertions, the Complaint fails to demonstrate any claims against Chief Harris or Ms. Brazile for which relief can be granted. Phrased another way, the claims set forth in the Complaint do not allege any conduct by Chief Harris of Ms. Brazile that are outside, let alone manifestly outside, the scope, responsibilities, and roles as the Chief of Police or as District Manager, Employee and Labor Relations, respectively, at Tri-C. (See Complaint). Nor do the assertions contained in the Complaint allege that Chief Harris, in his capacity as the Chief of Police for Tri-C, lacked the authority or discretion to assign or re-assign security personnel throughout the footprint of Tri-C, send personnel for training, or promote staff. (Complaint, 27). As set forth in the Complaint, Plaintiff was certainly satisfied when Chief Harris promoted Plaintiff at Tri-C and subsequently designated him as the Supervisor of Tri-C’s Detective Bureau. (Complaint, 9) (“On March 18, 2013, Defendant Harris promoted Plaintiff by transferring him to the Detective Bureau to work as the lead Detective, and on January 2, 2020, Harris designated Plaintiff the Supervisor of Tri-C’s Detective Bureau.”). Because Plaintiff’s assertions against Tri-C’s employees solely relate to conduct in their official capacities, R.C. 2744.02(A) applies, entitles them to political subdivision immunity, and warrants a full dismissal of Plaintiff’s claims against them. Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597/ Confirmation Nbr. 3025443 / CLKXL C. Tri-C's Employees Are Also Entitled to Immunity Under Ohio's Political Subdivision Tort Liability Act Claims commenced against employees of a political subdivision in their official capacity are considered and determined to be actions against the political subdivision entity itself, thereby entitling those employees to the same immunity as the political subdivision. Newton v. City of Cleveland Law Department, 8th Dist., Cuyahoga Case No. 102042, 2015-Ohio-1460, 17 citing Lambert v. Clancy, 125 Ohio St.3d 231, 927 N.E.2d 585, 2010-Ohio-1483, 16. “For purposes of political-subdivision immunity, a suit against a political-subdivision employee in his or her official capacity is treated the same as a suit against the political subdivision itself, and [the] three-tiered analysis applies.” Alcus v. Bainbridge Township, 2020-Ohio-543, 141. Moreover, the same analysis performed in concluding that immunity applies to Tri-C with respect to Plaintiffs claims also applies to Chief Harris and Ms. Brazile, as employees of Tri-C. In evaluating whether Plaintiffs claims against Chief Harris and Ms. Brazile are in their official capacity as employees of Tri-C, this Court should review and focus on the language utilized in the Complaint. A facial review of the Complaint confirm and affirms that Chief Harris and Ms. Brazile were sued by Plaintiff in their capacities as the “Police Chief for Cuyahoga County Community College Campus Police and Security Services Department” and as the “District Manager, Employee and Labor Relations Cuyahoga Community College,” respectively. (Complaint, Case Caption). Additionally, the language set forth in Plaintiffs allegations make clear that his claims against ChiefHarris and Ms. Brazile are only in their official capacities at Tri- C. (Complaint, 3 “Plaintiff at all times relevant hereto, Defendant Clayton Harris, who is African American and Defendant's Tri-C's Campus Police and Security Services Department Police Chief...” and 4 (“At all times relevant hereto, Defendant Shari Brazile of Tri-C's Human Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597/ Confirmation Nbr. 3025443 / CLKXL Resources department...”) Because Chief Harris and Ms. Brazile were sued in their official capacities for alleged actions performed in their official capacities, they are entitled to the same immunity protections provided for political subdivisions to the same extent as Tri-C in accordance with Ohio's Political Subdivision Tort Liability Act. IV. CONCLUSION Plaintiffs vague and unsupported allegations are void of any actionable conduct attributable to Tri-C or its employees, Chief Harris and Ms. Brazile, thereby warranting dismissal of the Complaint based on the statutory immunity afforded by Ohio's Political Subdivision Tort Liability Act. Based upon the foregoing arguments and authorities, Defendants respectfully requests that this Court issue an Order dismissing Plaintiffs Complaint with prejudice. Respectfully submitted, /s/ E. Mark Young_________ E. Mark Young (0074275) Roetzel & Andress, LPA 1375 E. 9th Street One Cleveland Center, 10th Floor Cleveland, Ohio 44114 Telephone: (216) 623-0150 Facsimile: (216) 623-0134 Email: emyoung@ralaw.com Counselfor Defendants, Cuyahoga Community College, Clayton Harris, and Shari Brazile Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 985597! Confirmation Nbr. 3025443 / CLKXL CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of November 2023, a copy of the foregoing Motion of Defendants to Dismiss Plaintiff’s Complaint was filed electronically. Notice of this filing will be sent by operation of the Court's electronic filing system to all parties indicated on the electronic filing receipt. Parties may access this filing through the Court's system. /s/ E. Mark Young________________ E. Mark Young (0074275) Counselfor Defendants, Cuyahoga Community College, Clayton Harris, and Shari Brazile Electronically Filed 11/22/2023 16:12 / MOTION / CV 23 98559EZ Confirmation Nbr. 3025443 / CLKXL