[Cite as Moore v. Cleveland, 2014-Ohio-1426.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100069


                             JOANNE MOORE, ET AL.

                                                      PLAINTIFF-APPELLEE

                                                vs.

                          CITY OF CLEVELAND, ET AL.

                                                      DEFENDANT-APPELLANT



                                           JUDGMENT:
                                            AFFIRMED


                                      Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                           Case Nos. CV-10-743088 and CV-11-764319

        BEFORE: Jones, P.J., S. Gallagher, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: April 3, 2014
ATTORNEYS FOR APPELLANTS

For Joanne Moore

Christine M. LaSalvia
Jeffrey H. Friedman
Friedman, Domiano & Smith
55 Public Square
Suite 1055
Cleveland, Ohio 44113

Terry H. Gilbert
Friedman & Gilbert Attorneys at Law
55 Public Square
Suite 1055
Cleveland, Ohio 44113

For Latundra Billups

Blake A. Dickson
Jacqueline M. Mathews
Mark D. Tolles, II
The Dickson Firm, L.L.C.
Enterprise Place, Suite 420
3401 Enterprise Parkway
Beachwood, Ohio 44122


 ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
City of Cleveland Director of Law

BY: Awatef Assad
Assistant Law Director

Thomas J. Kaiser
Chief Trial Counsel
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114
LARRY A. JONES, SR., P.J.:

        {¶1} The plaintiffs-appellants are as follows: Joanne Moore, individually and as the

administrator of the estate of Janice Webb; Bobbie Lee Dancy, individually and as the

administrator of the estate of Amelda Hunter; Dorothy Pollard, individually and as the

administrator of the estate of Diane Turner; Debra Williams, individually and as the

administrator of the estate of Telacia Fortson; Kyana Hunt, individually and as the

administrator of the estate of Nancy Cobbs; Jim Allen, individually and as the

administrator of the estate of Le-Shanda Long; Mary Mason, individually and as the

administrator of the estate of Michelle Mason, Yvonne Williams-McNeill, individually

and as the administrator of the estate of         Tishana Culver; and Latundra Billups.1 They

appeal the trial court’s decision granting defendant-appellee’s, Lorraine Coyne, motion for

judgment on the pleadings.

        {¶2} We affirm.

I. Background Facts

        {¶3} In 2010 and 2011, the above-named plaintiffs and three additional plaintiffs

(see fn. 1)     filed suit in five separate trial court cases against numerous defendants,


         Three additional plaintiffs are not named in the notice of appeal and, therefore, are not parties
        1


to this appeal: Florence Bray, named individually and as the administrator of the estate of Crystal
Dozier; Donald Smith, named individually and as the administrator of the estate of Kim Smith; and
Gladys Wade.
including the city of Cleveland, the former Cuyahoga County Board of Commissioners,

the Cuyahoga County Sheriff’s Department, various members of the Cleveland police

department and the City of Cleveland assistant prosecuting attorney Lorraine Coyne.      The

trial court consolidated the cases.

       {¶4} The plaintiffs alleged that the defendants failed to properly investigate

Anthony Sowell, who, in 2009, was arrested and indicted on 85 counts of murder,

kidnapping, rape, and abuse of a corpse after a search at his house and property revealed

the remains of 11 women. Sowell was convicted of 81 counts and sentenced to death.

State v. Sowell, Cuyahoga C.P. No. CR-09-530885.               He is currently appealing his

conviction and death sentence.           See State v. Sowell, 133 Ohio St.3d 1509,

2012-Ohio-5921, 979 N.E.2d 354 (motion and procedural ruling).

       {¶5} The plaintiffs alleged, in part, that the defendants were the proximate cause of

death or injury by Sowell because the defendants released him from jail after he was

arrested for rape and assault on December 8, 2008, even though the defendants had more

than sufficient evidence of probable cause to hold and charge him.          It was after this

release that many of the women went missing and were murdered by Sowell.

       {¶6} The plaintiffs further alleged that on December 8, 2008, a bleeding woman ran

up to a police car and told the police that Sowell had punched and choked her, tried to rip

her clothes off, and kill her.   The police arrested Sowell.    Two days later, on December

10, members of the Cleveland police met with assistant prosecutor Coyne and they

reviewed the case.    Coyne decided there was insufficient evidence to file charges against
Sowell.   Sowell was then released from jail.         According to the complaints, the

defendants claimed there were no visible signs of injuries to the victim “despite witnesses

seeing her bleeding, and the medical release forms signed by the victim to confirm medical

treatment.”

       {¶7} In April and September of 2009, two other women claimed to have been raped

and assaulted by Sowell.    In October 2009, Sowell was arrested after witnesses saw a

naked woman falling from a window at his home. It was at this time that a search of the

house and property was conducted, and the bodies of 11 women were found.

       {¶8} The plaintiffs represented 10 of the 11 estates of the deceased women as well

as two of the surviving women who had accused Sowell of assaulting them.

       {¶9} In response to the complaints, Coyne filed a motion for judgment on the

pleadings, arguing that she was immune from liability because she was acting in her

position as a prosecutor when she made the decision not to charge Sowell in December

2008. The plaintiffs opposed the motion.

       {¶10} The trial court issued a written opinion granting Coyne’s motion, finding that

she was entitled to absolute immunity from civil liability related to her alleged failure to

investigate or prosecute Sowell as a result of the 2008 incident. The trial court dismissed

all claims against Coyne with prejudice.

       {¶11} The remaining defendants moved the trial court to stay the case pending the

outcome of the plaintiffs’ appeal; the court granted defendants’ motion.

       {¶12} The plaintiffs-appellants raise one assignment of error for our review:
       I.    The trial court erred in granting defendant Lorraine Coyne’s motion for

       judgment on the pleadings * * * because plaintiffs pled a set of facts in their

       respective complaints that, if proven, would entitle them to relief and

       abrogate defendant Lorraine Coyne’s qualified immunity, relative to the

       performance of her investigative and administrative duties.

II. Law and Analysis

Standard of Review

       {¶13} A motion for judgment on the pleadings presents only questions of law,

which this court reviews de novo.        Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,

2004-Ohio-4362, 814 N.E.2d 44, ¶ 5; Dearth v. Stanley, 2d Dist. Montgomery No. 22180,

2008-Ohio-487, ¶ 24.       Determination of a motion for judgment on the pleadings is

restricted solely to the allegations in the pleadings and any writings attached to the

complaint.     Peterson v. Teodosio, 34 Ohio St.2d 161, 165, 297 N.E.2d 113 (1973).

Dismissal is appropriate under Civ.R. 12(C) when, after construing all material allegations

in the complaint, along with all reasonable inferences drawn therefrom in favor of the

nonmoving party, the court finds that the plaintiff can prove no set of facts in support of its

claim that would entitle it to relief. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75

Ohio St.3d 565, 570, 664 N.E.2d 931 (1996).

Statutory Immunity

       {¶14} R.C. 2744.03(A)(7) provides as follows:

       The political subdivision, and an employee who is a county prosecuting
       attorney, city director of law, village solicitor, or similar chief legal officer

       of a political subdivision, an assistant of any such person, or a judge of a

       court of this state is entitled to any defense or immunity available at common

       law or established by the Revised Code.

       {¶15} R.C. 2744.03(A)(6), provides that, in addition to any immunity or defense

referred to in R.C. 2744.03(A)(7), an employee, as defined in R.C. 2744.01(B), 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; (b) The employee’s

       acts or omissions were with malicious purpose, in bad faith, or in a wanton

       or reckless manner; [or] (c) Civil liability is expressly imposed upon the

       employee by a section of the Revised Code.

       {¶16} The plaintiffs’ complaints alleged that Coyne was an assistant city prosecutor

at the time of Sowell’s December 2008 arrest; therefore, R.C. 2744.03(A)(7) would apply.

 The next step is to determine whether any defense or immunity available at common law

is applicable.

Common Law Immunity

       {¶17} The United States Supreme Court has held that prosecutors are considered

“quasi-judicial officers” entitled to the absolute immunity granted to judges when their

activities are “intimately associated with the judicial phase of the criminal process.”

Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).                The
Imbler Court held that a prosecutor has absolute immunity “in initiating a prosecution and

in presenting the State’s case.” Id. at 431. But absolute immunity does not always

extend to a prosecutor engaged in   “essentially investigative or administrative functions.”

 Willitzer v. McCloud, 6 Ohio St.3d 447, 449, 453 N.E.2d 693 (1983).

      {¶18} To determine whether absolute immunity attaches to a particular

prosecutorial activity, the Imbler Court adopted a “functional analysis.” Imbler at 430.

This approach requires a court to examine “the nature of the function performed, not the

identity of the actor who performed it.” Forrester v. White, 484 U.S. 219, 229, 108 S.Ct.

538, 98 L.Ed.2d 555 (1988). The Supreme Court has recognized that the duties of the

prosecutor in his or her role “as advocate for the State involve actions preliminary to the

initiation of a prosecution and actions apart from the courtroom.” Imbler at 431, fn. 33.

Thus, “[i]mmunity extends to ‘the preparation necessary to present a case,’ and this

includes the ‘obtaining, reviewing, and evaluation of evidence.’”        Id.   In order for

absolute immunity to attach to a prosecutor’s administrative or investigative acts, such

must be necessary for the “initiation of a prosecution or for judicial proceedings.”

Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993).

      {¶19} If a court finds that a prosecutor’s actions are not covered by absolute

immunity, then the prosecutor may be entitled to qualified immunity.           By way of

example, the United States Supreme Court held that a prosecutor was entitled to absolute

immunity for his testimony at a probable cause hearing but not for giving legal advice to

the police regarding the use of hypnosis as an investigative technique and the existence of
probable cause to arrest.   Burns v. Reed, 500 U.S. 478, 496, 111 S.Ct. 1934, 114 L.Ed.2d

547 (1991). The prosecutor had told police that they could question the suspect under

hypnosis and after the questioning had been completed, that they “probably” had probable

cause to arrest her.   The Court reasoned:

       [T]he qualified immunity standard is today more protective of officials than
       it was at the time that Imbler was decided. “As the qualified immunity
       defense has evolved, it provides ample protection to all but the plainly
       incompetent or those who knowingly violate the law.” * * * The [argument]
       that giving legal advice is related to a prosecutor’s role in screening cases for
       prosecution and in safeguarding the fairness of the criminal judicial process
       * * * proves too much. Almost any action by a prosecutor, including his or
       her direct participation in purely investigative activity, could be said to be in
       some way related to the ultimate decision whether to prosecute, but we have
       never indicated that absolute immunity is that expansive. * * * [T]he judicial
       process, will not necessarily restrain out-of-court activities by a prosecutor
       that occur prior to the initiation of a prosecution, such as providing legal
       advice to the police. This is particularly true if a suspect is not eventually
       prosecuted. * * * We do not believe [that] advising the police in the
       investigative phase of a criminal case is so “intimately associated with the
       judicial phase of the criminal process,” that it qualifies for absolute
       immunity.

(Internal citations omitted). Id. at 493, 494-496.

       {¶20} The United States Supreme Court has also pointed out the difference that the

police and prosecutors often take in criminal investigations. In      Buckley, 509 U.S. 259,

273, 113 S. Ct. 2606, 125 L. Ed. 2d 209, the Court stated with respect to investigative acts

such as interviewing witnesses:

       There is a difference between the advocate’s role in evaluating evidence and
       interviewing witnesses as he prepares for trial, on the one hand, and the
       detective’s role in searching for the clues and corroboration that might give
       him probable cause to recommend that a suspect be arrested, on the other
       hand. When a prosecutor performs the investigative functions normally
       performed by a detective or police officer, it is neither appropriate nor
       justifiable that, for the same act, immunity should protect the one and not the
       other.

Id. (quotation omitted). The Buckley Court held that the prosecutors were therefore only

entitled to qualified immunity for allegedly conspiring to fabricate evidence during the

preliminary investigation of a crime, and for making false statements at a press conference.

 Id. at 275, 277.

Appellants’ Claim

       {¶21} The appellants argue that Coyne’s failure to conduct a proper preliminary

investigation of the December 8, 2008 incident did not constitute an advocatory function;

therefore, she should not be entitled to absolute immunity for her failure to conduct said

investigation.   Specifically, the appellants claim that their complaint “suggests”: (1)

having been made aware of the allegations against Sowell, Coyne failed to conduct any

reasonable investigation by failing to verify and analyze physical evidence, interview

witnesses, or consider Sowell’s past convictions and status as a sex offender; (2) Coyne

prematurely ended the investigation without considering physical evidence, following up

with witnesses, interviewing the victim, or evaluating Sowell’s criminal history; and (3)

Coyne advised the police to release Sowell despite the evidence against him and his

criminal history. Thus, appellants argue, Coyne failed in regard to three non-advocatory

functions.

       {¶22} The appellants further argue that Coyne is not entitled to qualified immunity

because her actions, or lack thereof, were done with malicious purpose, in bad faith, and/or

in a wanton or reckless manner.     As will be explained in further detail below, however,
we need not consider whether Coyne is entitled to qualified immunity.        Once absolute

immunity has been established under R.C. 2744.03(A)(7), it cannot be defeated by

application of the “malicious purpose, bad faith” qualified immunity provisions of R.C.

2744.03(A)(6).     Jopek v. Cleveland, 8th Dist. Cuyahoga No. 93793, 2010-Ohio-2356, ¶

36.

Related Federal Case

       {¶23} Donnita Carmichael brought suit in federal court, individually and in her

official capacity as administrator of the estate of Tonia Carmichael, against 21 defendants,

including Lorraine Coyne.        Sowell also murdered Tonia Carmichael.            Donnita

Carmichael alleged Coyne was liable for Coyne’s alleged failure to investigate and

decision not to prosecute the same 2008 case against Sowell.

       {¶24} Coyne moved to dismiss the claims against her pursuant to Fed.R.Civ.P.

12(B)(6).   In Carmichael v. Cleveland, 881 F. Supp.2d 833, 845 (N.D.Ohio 2012), the

federal district court held that Coyne was entitled to absolute prosecutorial immunity for

her alleged conduct.

       {¶25} The Carmichael court relied on Imbler’s functional approach, noting that the

approach examines the nature of the functions with which a particular officer or class of

officials has been lawfully entrusted, and seeks to evaluate the effect that exposure to

particular forms of liability would likely have on the appropriate exercise of those

functions. Carmichael at id. citing Forrester, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d

555.   The Carmichael court further noted that
       [t]o distinguish between conduct entitled to absolute immunity and conduct
       entitled to qualified immunity, “the critical inquiry is how closely related is
       the prosecutor’s challenged activity to his role as an advocate ultimately
       associated with the judicial phase of the criminal process.”

Id. at 846, quoting Joseph v. Patterson, 795 F.2d 549, 554 (6th Cir.1986).

       {¶26} Although Carmichael had challenged Coyne’s “alleged failure to investigate

the facts of Anthony Sowell’s 2008 case, and her decision to not bring charges against

Sowell,” the court determined that Coyne’s “alleged actions spring from her role as a

quasi-judicial officer.   It is clear that the decision to investigate criminal charges is

‘quasi-judicial’   or ‘advocatory,’ and thus is protected by absolute immunity.” Id. at

845, 846.   The court continued:      “[T]he decision to prosecute, ‘even if malicious and

founded in bad faith, is unquestionably advocatory and at the heart of the holding in

Imbler.’”   (Citation omitted.) Id.    The court concluded that despite the allegations in

Carmichael’s complaint, Coyne was “absolutely immune from both suit and liability

concerning the alleged failure to investigate Mr. Sowell’s 2008 case, and the decision not

to prosecute that case.” Id.

       {¶27} The appellants in this case urge us to ignore the court’s holding in

Carmichael.    The appellants claim that the district court’s decision was premised solely

on Coyne’s decision not to file charges against Sowell. Appellants argue that the district

court’s decision did not analyze whether Coyne would be immune from liability for her (1)

failure to investigate, (2) prematurely terminating the investigation, and (3) advice to
police to “straight-release”2 Sowell.      Therefore, according to the appellants, Carmichael

is inapplicable to the instant case.       But even if this court were to find Carmichael

persuasive, the appellants argue, the district court’s decision was erroneous, is currently

being appealed,3 and Carmichael is not binding upon this court.

       {¶28} As an initial matter, we note that the district court in Carmichael specifically

held that the decision to prosecute, the decision to investigate, and the alleged failure to

investigate are all entitled to absolute immunity.          Id. at 845-846.      As a matter of

common sense, that holding can be extended to include the termination of the

investigation. Thus, the only matter for which the Carmichael court did not specifically

touch upon is the appellant’s allegation on appeal that Coyne advised the police to

“straight-release” Sowell.

Plaintiffs’ Complaints

       {¶29} The complaints filed by the plaintiffs-appellants read, in part pertinent to

Coyne, as follows:

              Defendant [Lorraine] Coyne, at all times relevant, was an assistant
               City of Cleveland Prosecutor employed by Defendant City of
               Cleveland.

       Moore Second Amended Complaint, ¶ 11; Billups Complaint, ¶ 6.

              On December 10, 2008, Defendant detectives met with Defendant
               Assistant City Prosecutor [Lorraine] Coyne, and upon review of the

         According to the plaintiffs’ complaints, “straight-release” is where suspects are released
       2


shortly after arrest without being formally charged with a crime.

        Carmichael v. Cleveland, 6th Cir. No. 12-3657.
       3
              case, they decided there was insufficient evidence to file prosecution
              papers, and Anthony Sowell was released. They claimed there were
              “no visible signs” of injuries despite witnesses seeing her bleeding,
              and the medical release forms signed by the victim to confirm
              medical treatment.

       Moore Second Amended Complaint, ¶ 25.

             On December 10, 2008, the Defendant detectives and/or police
              officers met with Defendant Assistant City Prosecutor [Lorraine]
              Coyne. Upon review of the case, they decided there was not
              sufficient evidence to file charges and decided to release Anthony
              Sowell from custody. Specifically, the Defendant detectives and/or
              police officers claimed there were “no visible signs” of injuries,
              despite witnesses seeing [the victim] bleeding, and the medical
              release forms signed by the victim to confirm medical treatment.
              [The victim] had clear and obvious injuries after the attack and she
              likely had Anthony Sowell’s DNA on her body. [The victim’s]
              blood was in Anthony Sowell’s home.

       Billups Complaint, ¶ 21.

Prosecutorial Immunity

       {¶30} The appellants must allege facts “that establish the functionality test in order

to override the prosecutor’s absolute immunity defense.” Tuleta v. Med. Mut. of Ohio,

8th Dist. Cuyahoga No. 100032, 2014-Ohio-930, ¶ 24.            We find that the plaintiffs’

complaints failed to allege that Coyne engaged in an investigation separate from her

prosecutorial duties; rather the complaints alleged that she met with Cleveland police

detectives, reviewed their investigation, and subsequently determined there was not

sufficient evidence to file charges against Sowell.   The police then released Sowell based

on the prosecutor’s decision not to file charges against him; the complaints do not allege

that Coyne gave police any advice that would rise to the level, for example, that the court
found in Burns, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547. Nor do the facts as

alleged in the complaints establish that Coyne acted beyond her role as an advocate for the

state or as an investigator.

       {¶31} In Ireland v. Tunis, 113 F.3d 1435 (6th Cir.1997), the Sixth Circuit Court of

Appeals held that absolute prosecutorial immunity attaches to acts necessary for a

prosecutor to initiate or maintain a criminal prosecution, which, in Ireland, was extended

to the decision to seek an arrest warrant.   The court explained:

       A prosecutor’s decision to file a criminal complaint and seek an arrest
       warrant and the presentation of these materials to a judicial officer fall
       squarely within the aegis of absolute prosecutorial immunity. In this role, a
       prosecutor is unquestionably functioning as an advocate for the state in the
       judicial process, and absolute immunity is fully justified because the
       integrity of the judicial system depends in large part upon a prosecutor’s
       ability to exercise independent judgment in deciding whether and against
       whom to bring criminal charges.

Id. at 1446.

       {¶32} In Ghaster v. Rocky River, 8th Dist. Cuyahoga No. 99779, 2013-Ohio-5587,

this court held that the trial court correctly granted the city prosecutor and law director’s

motion to dismiss on immunity grounds.          This   court found that initiating criminal

proceedings and witness investigation fell within the prosecutor’s advocacy function and,

as such, were entitled to absolute immunity. Id. at ¶ 25-26.

       {¶33} In this case, Sowell had already been arrested when Coyne met with

detectives. Coyne made the decision not to initiate a prosecution, finding that there was

insufficient evidence to charge him at that time.      There is nothing in the complaint to

indicate that Coyne took part in investigating the incident.        According to the factual
allegations in the plaintiffs’ complaints, Coyne reviewed the information that the

Cleveland police detectives presented to her and declined to prosecute based on her review

of the evidence. Based on this, she is entitled to absolute immunity. See Tuleta, 8th

Dist. Cuyahoga No. 100032, 2014-Ohio-930 (affirming trial court’s decision to grant

prosecutors’ motion to dismiss because prosecutors were entitled to absolute immunity for

initiating a prosecution and advocating the state’s position); Jopek, 8th Dist. Cuyahoga No.

93793, 2010-Ohio-2356 (finding prosecutor was entitled to absolute immunity when

determining whether to initiate criminal charges); Boone v. Kentucky, 72 Fed.Appx. 306,

307 (6th Cir.2003) (holding that “[t]he decision on whether to prosecute is unquestionably

advocacy and is at the heart of the Imbler holding.”).

       {¶34} In light of the above, the trial court did not err when it granted Coyne’s

motion for judgment on the pleadings and dismissed the claims against her with prejudice.



       {¶35} The sole assignment of error is overruled.

       {¶36} Judgment affirmed.

       It is ordered that appellee recover of appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN
JUDGMENT ONLY
