Case: 1:24-cv-00214-DRC Doc #: 89 Filed: 09/27/24 Page: 1 of 10 PAGEID #: 717

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

OHIO

WESTERN DIVISION

AKIL CHILDRESS, et al
Plaintiff : Case no. 1:24-cv-214
Vs.
CITY OF CINCINNATI, OHIO, et al RESPONSE TO MOTION TO DISMISS
PORT AUTHORITY DEFENDANTS

Now comes Plaintiffs through Counsel and respond to the Motion to Dismiss of the Defendants
styled ―Port Authority Defendants‖, Doc. #86, as follows:

If an allegation is capable of more than one inference, this Court must construe it
in the Plaintiff‘s favor. Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109
(6th Cir.1995) (citing Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir.1993)). This
Court may not grant a Rule 12(b)(6) motion merely because it may not believe the
Plaintiff‘s factual allegations. Id. Although this is a liberal standard of review, the
plaintiff still must do more than merely assert bare legal conclusions. Id. Specifically,
the Complaint must contain ―either direct or inferential allegations respecting all the
material elements to sustain a recovery under some viable legal theory.‖ Scheid v.
Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir.1988) (quotations and
emphasis omitted).

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949,173 L.Ed.2d 868 (2009) (internal

quotations omitted).

The Port Defendants move to dismiss the present complaint for the following
reasons:

1. Ohio law bars Plaintiffs‘ claims against individual Port Authority Defendants
2. Plaintiffs‘ claims fail to allege with sufficient particularity to overcome a
motion to dismiss
3. Plaintiffs‘ intentional tort claims must be dismissed as insufficiently pled or
barred by Ohio law.

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Plaintiffs’ claims fail to allege with sufficient particularity to overcome a motion to dismiss

Ohio law bars Plaintiffs’ claims against individual Port Authority Defendants

The Port Defendants engage in a process of selective presentation in their citation to

Chapter 1702 of the Ohio Revised Code. The cite only §1702.55 but neglect §1702.12(A),

which states that a corporation may be sued, §1702.12(E)(1) which permits indemnity for suits

against persons sued if the person acted in good faith §1702.12(E)(2) concerning directors,

officers and managers also contains the good faith requirement. Further, §1702.12(F)(9) states

clearly that a nonprofit corporation may only engage in things permitted by law. §1702.03 also

states that such corporations may be formed for any purpose for which natural persons lawfully

may associate themselves. Actions of the corporation are taken only upon a vote by a quorum of

its member, §1702.22(2) except for actions without a meeting are authorized by all of the

members, §1702.25(A). §1702.55(A) is itself limited to actions in wh1ch liability is based solely

on status.

Having said all of this, the reliance on Ohio law is not fully governing in this matter. The

First, Second, Third and Seventh (actually the Sixth Cause of Action but mislabeled as the

Seventh) Causes of Action are taken under federal law. Ohio law only is invoked in the Fourth

and Fifth Causes of Action. Additionally, the sparse rendering of the applicable paragraphs of the

Plaintiffs‘ allegations is misleading. The allegations against the Defendant Port Authority are

included in paragraphs 17- 19, 22-25, 42, 51-58, 60-61, 149-150, 157, 161-162172-173, 175-

176.

Beginning in 2021, the Port has operated under a plan to purchase a portfolio of vacant

and foreclosed properties in the area delimited in this complaint and sold bonds to finance this

undertaking, declaring that ―…it is easier to fix up empty houses…‖ (paras. 17-19). The

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Defendant 3CDC as the receiver for these properties (para. 21) affirmatively uses the Port as a

strawman to remove properties from the real estate tax roll and to transfer them to Defendant

Port for re-sale to private developers far below market prices (para. 21, 61). Examples of this

scheme were pled (paras. 23, 54-55, 58). While tax abatements were given and taxpayer funds

used to facilitate these sales, Defendant Port has used a tactic of City expedited tax foreclosures

to acquire properties owned by African-Americans, including the Plaintiffs herein (para. 57).

Again, these tactics were exposed and brought to the attention of Defendants, City, City Council,

Port, 3CDC and the named defendants from these entities by Jeffrey J. McClorey on August 25,

2023 (para. 24).

As pled, the actions alleged herein were encouraged by the negotiations with the City of a

proposed construction of an FC Cincinnati soccer stadium in late 2016 (para. 25). The

negotiations were facilitated by the presentation of the Auburn Avenue Corridor Strategic

Development Plan (the Plan) on February 8, 2027 which graphically delineated the precise area

of the City to be targeted, the area in which the Plaintiffs herein owned their properties and oddly

enough, the area bounded by the soccer stadium and Christ Hospital, two private enterprises

(paras. 26-29, 32, 40-41).

Although opposed by community groups such as the Coalition Against an FC Cincinnati

Stadium and consciously avoiding a citizen ballot issue, the stadium was financed and, although

aware of the discriminatory tactics of FC Cincinnati and the City through its Buildings and

Inspections Department, the Port ratified these actions (para. 42).

The Port Defendants and the Hamilton County Land Reutilization Corporation were also

put on notice of the tactics alleged above and sale of African-African-American properties by

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the allegations in the complaints in Case nos. 1:18-cv-522, 1:20-cv-713 and 1:20-cv-581 as pled

(paras. 51 and 53).

Nor can matters be dismissed as untimely. Parties who engage in a long pattern of

misconduct are not immunized from justice.

Plaintiffs also assert that, notwithstanding that their claim would ordinarily have expired
by now, they nevertheless benefit from the "continuous violation" doctrine so their claim
is still live. This doctrine is rooted in general principles of common law and is
independent of any specific action. See, e.g., Heard v. Sheahan, 253 F.3d 316, 318 (7th
Cir. 2001). And in this Circuit, a "continuous violation" exists if: (1) the defendants
engage in continuing wrongful conduct; (2) injury to the plaintiffs accrues continuously;
and (3) had the defendants at any time ceased their wrongful conduct, further injury
would have been avoided. Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516,
521 (6th Cir. 1997) (citations omitted); see also McNamara, 473 F.3d at 639 ("`[A] law
that works an ongoing violation of constitutional rights does not become immunized from
legal challenge for all time merely because no one challenges it within two years.'")
(quoting Kuhnle, 103 F.3d at 522).
Hensley v. City of Columbus, 557 F. 3d 693, 697 (6th Cir. 2009).

The individual members under Ohio law, specifically §1702.22 and §1702.25 require that

members vote on the actions of the corporation. The point is that the Port, HCLRC and the

named Port defendants are not being sued merely because they are member or officers in these

entities but due to the actions of the entities of which they are voting members who had

approved these various plans and tactics as enumerated even after concerns had been raised and

communicated to these individual members (para. 24).

While Chapter 1702 ORC provides certain specified limited protections for members of

non-profit corporations, it does not give protection for unlawful acts. Such acts need not be

criminal. Further, state law does not apply to four of the Causes of Action herein. The tactics of

the Port and HCLRC have been specifically pled, including dates and the subject actions of the

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Defendants. They individually voted for, planned, approved and ratified the actions against the

Plaintiffs in this matter. They acted. They were not merely passive position holders as

contemplated by ORC 1702.55(A). The Plaintiffs, as pled are African-American property

owners, as pled; their properties were and are located in the areas described in this complaint, as

pled; the actions against them which fit the described pattern, as pled, were the result of actions

by the Port and HCLRC and the named defendants from these entities which were readily

foreseeable from the Plan and the targeted area as specifically mapped in the Plan. Whether or

not the actions complained of herein were forseeable is a matter of fact to be argued at the

summary judgment phase or at trial.

Accordingly, since this matter is at the pleadings stage, Plaintiffs have pled sufficient

facts and nexuses to support their claims at the pleading stage and the motion to dismiss

individual Port defendants should be denied.

Plaintiffs’ intentional tort claims must be dismissed as insufficiently pled or barred by Ohio
law.

To reiterate:

Beginning in 2021, the Port has operated under a plan to purchase a portfolio of vacant and
foreclosed properties in the area delimited in this complaint and sold bonds to finance this
undertaking, declaring that ―…it is easier to fix up empty houses…‖ (paras. 17-19). The
Defendant 3CDC as the receiver for these properties (para. 21) affirmatively uses the Port as a
strawman to remove properties from the real estate tax roll and to transfer them to Defendant
Port for re-sale to private developers far below market prices (para. 21, 61). Examples of this
scheme were pled (paras. 23, 54-55, 58). While tax abatements were given and taxpayer funds
used to facilitate these sales, Defendant Port has used a tactic of City expedited tax foreclosures
to acquire properties owned by African-Americans, including the Plaintiffs herein (para. 57).
Again, these tactics were exposed and brought to the attention of Defendants, City, City Council,
Port, 3CDC and the named defendants from these entities by Jeffrey J. McClorey on August 25,
2023 (para. 24).
And,

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As pled, the actions alleged herein were encouraged by the negotiations with the City of a
proposed construction of an FC Cincinnati soccer stadium in late 2016 (para. 25). The
negotiations were facilitated by the presentation of the Auburn Avenue Corridor Strategic
Development Plan (the Plan) on February 8, 2027 which graphically delineated the precise area
of the City to be targeted, the area in which the Plaintiffs herein owned their properties and oddly
enough, the area bounded by the soccer stadium and Christ Hospital, two private enterprises
(paras. 26-29, 32, 40-41).
Although opposed by community groups such as the Coalition Against an FC Cincinnati
Stadium and consciously avoiding a citizen ballot issue, the stadium was financed and, although
aware of the discriminatory tactics of FC Cincinnati and the City through its Buildings and
Inspections Department, the Port ratified these actions (para. 42).
The Port Defendants and the Hamilton County Land Reutilization Corporation were also
put on notice of the tactics alleged above and sale of African-African-American properties by
the allegations in the complaints in Case nos. 1:18-cv-522, 1:20-cv-713 and 1:20-cv-581 as pled
(paras. 51 and 53).
The word ―agreement‖ does not appear in the pleadings except in paragraph 166. But

there it is – and it is supported by the overt acts, as pled, committed in the conjunction and

coordination of 3CDC and its willing strawman, the Port and with the Plan developed to

facilitate the ends of private entities such as FC Cincinnati and Christ Hospital and the numerous

private developers encouraged by the Plan and the City‘s strong-arm tactics of which the Port

and HCLRC defendants and the individuals actively pursuing these ends despite being informed

of their discriminatory effects and the extortionate actions taken to achieve the ends of the Port

and HCLRC and the private entities facilitated and encouraged by them. There was an

agreement, and it was so pled and supported. Nobody met in the basement of a garage or at an

abandoned airstrip, but actions consistent with the plan and in coordination among the various

organizations due to the statutorily required actions of the individuals named herein.

Finally, the moldy chestnut; immunity.

A state official who acts unconstitutionally can be sued because he cannot be held to be

performing these acts on behalf of the state, even if the official complies with the state's own

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laws. Nonetheless, he can still be held to be a state actor. See, Ex Parte Young, 209 U. S. 123

(1908). Additionally, under Young,

The answer to all this is the same as made in every case where an official claims to be
acting under the authority of the state. The act to be enforced is alleged to be
unconstitutional; and if it be so, the use of the name of the state to enforce an unconstitutional
act to the injury of complainants is a proceeding without the authority of, and one which does
not affect, the state in its sovereign or governmental capacity. It is simply an illegal act upon
the part of a state official in attempting, by the use of the name of the state, to enforce a
legislative enactment which is void because unconstitutional. If the act which the state
attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in
proceeding under such enactment, comes into conflict with the superior authority of that
Constitution, and he is in that case stripped of his official or representative character and is
subjected in his person to the consequences of his individual conduct. The state has no power
to impart to him any immunity from responsibility to the supreme authority of the United
States. See Re Ayers,123 U.S. 507 , 31 L. ed. 230, 8 Sup. Ct. Rep. 164.

Id. At 159-160.
Clearly, a state cannot provide immunity as Defendants claim for unconstitutional acts by

statute, such as ORC §2744.02 or otherwise. Additionally, under the terms of ORC

§2744.03(A)(6)(b), even under Ohio law, an employee committing acts with a malicious

purpose, in bad faith or in a wanton or reckless manner, is not immune from liability. These are

questions, at least under Ohio law, for a finder of fact. Federal Constitutional law provides no

such protections.

Young dealt with the enforcement of an unconstitutional state law but the principle

remains the same. A state officer who acts in violation of the United States Constitution, is not

acting as a representative of the state (although, and importantly, Young also held that for

purposes of a federal lawsuit he was a state actor) but is acting as an individual. The Defendants

are asserted in the pleadings to have violated the Plaintiffs‘ Fifth Amendment, the Fourteenth

Amendment right to Equal Protection and, to have furthered a conspiracy to do so. At the very

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least, under Young, the Port Defendants and HCLRC as pled are subject to injunctive and

declaratory relief as requested in the Complaint. But they are also in their individual capacity

subject to monetary damages.

In Edelman, the Court clarified the dividing line between permissible relief and relief proscribed
by the Eleventh Amendment, distinguishing between prospective and retroactive relief. In
summary, the Eleventh Amendment bars the award of retroactive relief for violations of federal
law which would require the payment of funds from a state treasury. Id., at 663, 94 S. Ct. at
1355-56. "The federal court may award an injunction that governs the official's future conduct,
but not one that awards retroactive monetary relief." Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 102-03, 104 S. Ct. 900, 909-10, 79 L. Ed. 2d 67 (1984). The immunity
is triggered when relief amounts to the payment of state funds as a form of compensation for past
breaches of legal duties by state officials. Edelman, 415 U.S. at 668, 94 S. Ct. at 1358.
The named defendants are sued in their capacities as individuals. Individuals do not

require payment from a government treasury.

In addition to the explicit stripping of immunity from state officials involved in

unconstitutional acts under Young, supra, it was also stated when a state official commits or, at

this phase is claimed to have committed an unconstitutional act, ―…The state has no power to

impart to him any immunity from responsibility to the supreme authority of the United States.

Young at 159-160. Qualified immunity only attaches when an official‘s conduct does not violate

clearly established constitutional rights of which a reasonable person would have known. White

v. Pauly 137 S. Ct. 548, 551 (2017). It protects all but the plainly incompetent or those who

knowingly violate the law. Id. There need not be caselaw directly on point for a right to be

clearly established. Id. at 308. There is indeed a two part test involved for qualified immunity:

whether a constitutional right has been violated under the facts alleged and if so whether the right

was clearly established. Saucier v. Katz 533 U. S. 194, 200-201. To succeed on a § 1983 claim, a

plaintiff must prove that: (1) he was deprived of a right secured by the Federal Constitution or

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laws of the United States; and (2) he was subjected to this deprivation by a person acting under

color of state law. Searcy v. City of Dayton, 38 F.3d 282, 286 (6th Cir. 1994).

The Fourteenth Amendment to the United States Constitution states in part:

All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.

(Emphasis added).

In addition, the Fifth Amendment to the United States Constitution states in pertinent

part,

No person shall …be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just compensation."

The Fifth Amendment has been made applicable to the States under the Fourteenth

Amendment to the United States Constitution.

The Plaintiffs have pled facts that if proven would demonstrate violations of their Fifth

and Fourteenth Amendment rights. The City and its Council, including its individual members

participated in the development of the Plan which delimited predominantly African-American

areas of the City in which, as pled the Plaintiffs‘ properties were located. These properties were

taken or demolished in accordance with the Plan by named inspectors who continually violated

the law by trespassing, failing to give notice, incarcerating individuals for housing violations

and, failing to enforce the law against Caucasian property owners. All of which has been pled as

indicated above. The City and the Council, including its named members, went a step further and

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enacted the Plan by ordinance. These actions occurred after the receipt of complaints alleging the

discriminatory practices and effects of the Plan and the filing of lawsuits (which were dismissed

without prejudice) alerting any rational person or body of issues with the violation of African-

American, and, specifically these Plaintiffs‘, property owners‘ constitutional rights.

―… it is generally inappropriate for a district court to grant a 12(b)(6) motion to dismiss

on the basis of qualified immunity.‖ Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th
Cir. 2016). “the fact-intensive nature of the applicable tests make it ‗difficult for a defendant to
claim qualified immunity on the pleadings before discovery.’” Wesley v. Campbell, 779 F.3d
421, 433–34 (6th Cir. 2015) (quoting Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 235 (6th
Cir. 2005) (Sutton, J., concurring) (emphasis original); 5C Wright & Miller, Fed. Prac. & Proc.
§ 1368 (explaining that ―a summary judgment motion or a full trial‖—rather than a Rule 12
motion—should resolve disputed issues of fact).

It is thus inappropriate to dismiss the present Complaint under the judicially created

doctrine of qualified immunity.

Conclusion

The motion to dismiss of the City Defendants must be denied in its entirety.

s/ George A. Katchmer
Attorney at Law (0005031)
1886 Brock Road N. E.

Bloomingburg, Ohio 43106

(740) 437-6071
(740) 437-6071 Facsimile
Certificate of Service
A copy of the foregoing response was served on the Defendants by Electronic Notification by the
Clerk of Courts on this date of filing.
s/ George Katchmer
GEORGE A. KATCHMER

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