[Cite as Faber v. Seneca Cty. Sheriff's Dept., 2018-Ohio-786.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




ERIC A. FABER, ET AL.,
                                                                 CASE NO. 13-17-29
       PLAINTIFFS-APPELLANTS,

       v.

SENECA COUNTY SHERIFF'S                                          OPINION
DEPT., ET AL.,

       DEFENDANTS-APPELLEES.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 17-CV-0013

                                      Judgment Affirmed

                              Date of Decision: March 5, 2018



APPEARANCES:

        Gene P. Murray for Appellants

        Teresa L. Grigsby for Appellees
Case No. 13-17-29


WILLAMOWSKI, P.J.,

       {¶1} Plaintiffs-appellants Eric A. Faber (“Eric”), Robert E. Faber, and

Martha J. Faber appeal the judgment of the Seneca County Court of Common Pleas

(1) for granting appellees’ 12(B)(6) motion to dismiss; and (2) for finding the

appellants’ claim for injunctive relief to be moot. For the reasons set forth below,

the judgment of the lower court is affirmed.

                          Facts and Procedural History

       {¶2} On January 10, 2017, the appellants filed a complaint that named the

Seneca County Sheriff’s Department and Sheriff William E. Eckelberry (“Sheriff

Eckelberry”) as defendants. Doc. 2. The complaint alleged that Eric, while he was

an inmate in the Seneca County Jail, was assaulted on January 13, 2015, by another

inmate Jose Garcia (“Garcia”). Id. Garcia was allegedly an illegal immigrant who

was in the appellees’ custody and was awaiting deportation. Id. The complaint

claims that Garcia was motivated to assault Eric by a desire “to obtain a new

criminal offense, and thereby avoid or otherwise delay his deportation * * *.” Id.

The complaint stated that the appellees were “responsible for the operation of the

Seneca County Jail” and “fail[ed] to safeguard and protect their ward.” Id.

       {¶3} The appellants also requested an order from the trial court that would

require the appellees to keep detainees who are awaiting deportation in a separate

area from the other inmates in the local jail. Id. If the appellees were not able to

keep the ICE detainees separately from the other inmates, the appellants

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alternatively requested “the [trial court] to Order that the Defendants cease and

desist from any further participation in the ICE-related detaining and deportation

process.” Id.

       {¶4} On June 1, 2017, the appellees filed a motion for judgment on the

pleadings. Doc. 14. In this motion, the appellees argued that Sheriff Eckelberry

was only sued in his official capacity and, therefore, had immunity under R.C.

2744.02. Id. The trial court granted the appellees’ motion on September 6, 2017.

Doc. 17. The appellants filed notice of appeal on October 6, 2017. Doc. 18. On

appeal, the appellants raise the following two assignments of error:

                            First Assignment of Error

       The trial court abused its discretion by erroneously deciding that
       no allegations of liability were made in the complaint against
       Defendant William E. Eckelberry, individually, …As the
       plaintiffs did indeed claim damages jointly and “severally”
       against each defendant, thereby individualizing the actions and
       the claims against each defendant, with allegations of
       recklessness, and accordingly stating a valid actionable claim
       against the named individual, William E. Eckelberry, in the
       complaint, which should survive a motion to dismiss on the
       pleadings.

                          Second Assignment of Error

       The trial court abused its discretion by dismissing the plaintiffs’
       claim against the defendants for injunctive relief on the sole
       grounds of mootness, as the trial court erroneously claimed there
       were no allegations in the complaint that the Seneca County Jail
       presently houses ICE detainees, when indeed, the plaintiffs’
       complaint indicated that Federal Immigration and Customs
       Enforcement (known by the acronym “ICE”) detainees are being
       held by the defendants in the Seneca County Jail. Wherefore, the

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         fact that the trial court conceded that only “after the alleged
         assault” that Plaintiff Eric Faber was housed separately from the
         person, to wit, the ICE detainee who assaulted him, accordingly
         so indicates without equivocation, there is no protective
         separation of ICE detainees and the local inmate population,
         which is not a moot point to the safety of the local inmate
         population, with regard to the practical effects upon the existing
         controversy, which so exists in the Seneca County Jail, and which
         commingles ICE detainees with the local inmate population, and
         with the ICE detainees’ incentives to commit crimes against the
         local inmate population in order to remain in the United States
         because of new crimes, or because of the charges received,
         therefrom, delaying deportation.

We will consider these assignments of error in the order in which they were

presented in the appellants’ brief.

                                     First Assignment of Error

         {¶5} In their first assignment of error, the appellants argue that the trial court

erred by granting appellees’ Civ.R. 12(B)(6) motion to dismiss, alleging that their

complaint contains a prima facie tort claim against the sheriff.1

                                            Legal Standard

         {¶6} “A [Civ.R. 12(B)(6)] motion to dismiss for failure to state a claim upon

which relief can be granted is procedural and tests whether the complaint is

sufficient.” Pearsall v. Guernsey, 2017-Ohio-681, 86 N.E.3d 69, ¶ 8 (3d Dist.),

quoting Bd. of Health of Defiance Cty. v. McCalla, 3d Dist. Defiance No. 4-12-07,

2012-Ohio-4107, ¶ 33. For a Civ.R. 12(B)(6) dismissal to be proper, “it must appear


1
  In their assignment of error, the appellants do not challenge the decision of the trial court to grant the
appellees’ 12(B)(6) motion as to the Seneca County Sheriff’s Department. Thus, we will limit our analysis
to whether the 12(B)(6) motion was properly granted as to Sheriff Eckelberry.

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Case No. 13-17-29


beyond doubt that the plaintiff can prove no set of facts in support of the claim that

would entitle the plaintiff to relief.” Arnett v. Precision Strip, Inc., 2012-Ohio-2693,

972 N.E.2d 168, ¶ 5 (3d Dist.), quoting LeRoy v. Allen, Yurasek, & Merklin, 114

Ohio St.3d 323, 2007-Ohio-3608, 872 N.E.2d 254, ¶ 14.

       {¶7} On review, “[t]he allegations of the complaint must be taken as true,

and those allegations and any reasonable inferences drawn from them must be

construed in the nonmoving party’s favor.” Ohio Bur. of Workers’ Comp. v.

McKinley, 130 Ohio St.3d 156, 2011-Ohio-4432, 956 N.E.2d 814, ¶ 12. An

appellate court reviews a trial court’s decision to grant a Civ.R. 12(B)(6) motion de

novo. Ballreich Bros., Inc. v. Criblez, 3d Dist. Hancock No. 5-09-36, 2010-Ohio-

3263, ¶ 9.

       Because affirmative defenses typically rely on matters outside the
       complaint, they normally cannot be raised in a Civ.R. 12(B)(6)
       motion. If, however, the existence of an affirmative defense is
       obvious from the face of the complaint, a court may grant a Civ.R.
       12(B)(6) motion on the basis of the affirmative defense. In so
       ruling, a court must exercise caution because ‘complaints need
       not anticipate and attempt to plead around defenses.’ Thus,
       unless the face of the complaint obviously or conclusively
       establishes the affirmative defense, a court may not dismiss the
       complaint for failure to state a claim.

(Citations omitted). Cristino v. Bur. of Workers’ Comp., 2012-Ohio-4420, 977

N.E.2d 742, ¶ 21 (10th Dist.). Miller v. Van Wert Cty. Bd. of Mental Retardation &

Dev. Disabilities, 3d Dist. Van Wert No. 15-08-11, 2009-Ohio-5082, ¶ 19.




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       {¶8} Revised Code Chapter 2744 provides general immunity to political

subdivisions subject to several statutory exceptions. O’Toole v. Denihan, 118 Ohio

St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 47. This immunity is extended to

elected officeholders who hold positions within political subdivisions. Lambert v.

Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585, ¶ 14, 22.

       A complainant may sue an elected official in either his or her
       official capacity or in his or her individual capacity. When the
       complainant sues an elected official in his or her individual
       capacity, R.C. 2744.03(A)(6) applies and the official will be
       immune from suit unless the complainant can show that one of the
       exceptions set forth in that subdivision applies.

Field v. Summit Cty. Child Support Agency, 2016-Ohio-7026, 72 N.E.3d 165, ¶ 15.

However, “if the allegations are directed against the holder of an office in his official

capacity, it is the equivalent of suing the political subdivision itself.” Thompson v.

Buckeye Joint Vocational Sch. Dist., 2016-Ohio-2804, 55 N.E.3d 1, ¶ 39 (5th Dist.).

       {¶9} Thus, R.C. 2744.02 and the exceptions contained therein apply to

claims filed against an elected official who is sued in his or her official capacity.

Lambert at ¶ 14, 22. The process of determining civil liability for a political

subdivision under R.C. 2744.02 involves a three-tier analysis.           Wentworth v.

Coldwater, 3d Dist. Mercer No. 10-14-18, 2015-Ohio-1424, ¶ 21.

       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. R.C.
       2744.02(A)(1). However, that immunity is not absolute. R.C.
       2744.02(B).


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Case No. 13-17-29


      The second tier of the 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. At
      this tier, the court may also need to determine whether specific
      defenses to liability for negligent operation of a motor vehicle
      listed in R.C. 2744.02(B)(1)(a) through (c) apply.

      If any of the exceptions to immunity in R.C. 2744.02(B) do apply
      and no defense in that section protects the political subdivision
      from liability, then the third tier of the analysis requires a court
      to determine whether any of the defenses in R.C. 2744.03 apply,
      thereby providing the political subdivision a defense against
      liability.

Riffle v. Physicians & Surgeons Ambulance Serv., Inc., 135 Ohio St.3d 357, 2013-

Ohio-989, 986 N.E.2d 983, ¶ 15, quoting Colbert v. Cleveland, 99 Ohio St.3d 215,

2003-Ohio-3319, 790 N.E.2d 781, ¶ 7-9.

      {¶10} The five exceptions to immunity listed under R.C. 2744.02(B) read as

follow:

      (1) Except as otherwise provided in this division, political
      subdivisions are liable for injury, death, or loss to person or
      property caused by the negligent operation of any motor vehicle
      by their employees when the employees are engaged within the
      scope of their employment and authority. * * *

      ***

      (2) Except as otherwise provided in sections 3314.07 and 3746.24
      of the Revised Code, political subdivisions are liable for injury,
      death, or loss to person or property caused by the negligent
      performance of acts by their employees with respect to
      proprietary functions of the political subdivisions.

      (3) Except as otherwise provided in section 3746.24 of the Revised
      Code, political subdivisions are liable for injury, death, or loss to
      person or property caused by their negligent failure to keep

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       public roads in repair and other negligent failure to remove
       obstructions from public roads * * *.

       (4) Except as otherwise provided in section 3746.24 of the Revised
       Code, political subdivisions are liable for injury, death, or loss to
       person or property that is caused by the negligence of their
       employees and that occurs within or on the grounds of, and is due
       to physical defects within or on the grounds of, buildings that are
       used in connection with the performance of a governmental
       function, including, but not limited to, office buildings and
       courthouses, but not including jails, places of juvenile detention,
       workhouses, or any other detention facility, as defined in section
       2921.01 of the Revised Code.

       (5) 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 political 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 subdivision, because that section provides for a criminal
       penalty, because of a general authorization in that section that a
       political subdivision may sue and be sued, or because that section
       uses the term “shall” in a provision pertaining to a political
       subdivision.

R.C. 2744.02(B). Courts proceed to the third tier of the analysis only if one of the

exceptions in R.C. 2744.02(B) applies. Wentworth at ¶ 23.

                                  Legal Analysis

       {¶11} In this case, we must first determine whether Sheriff Eckelberry was

sued in his official capacity or as an individual. The wording of the appellants’

complaint addresses Sheriff Eckelberry in his official capacity. Doc. 2. “The

complaint does not add the words ‘personally,’ ‘individually,’ ‘an employee of the

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[Seneca County Sheriff’s Office],’” or other language that would indicate that

Sheriff Eckelberry is being sued in an individual capacity as a county employee.

Lambert at ¶ 15. Further, the complaint challenges the policies and practices of the

Seneca County Sheriff’s Office. Id. at ¶ 16. The complaint does not allege any facts

in which Sheriff Eckelberry was acting personally in an individual capacity. Id.

       {¶12} The appellants argue that the complaint does address Sheriff

Eckelberry as an individual because damages were sought “jointly and severally”

from the appellees. Doc. 2. We do not find this argument to be persuasive. In

Lambert v. Clancy, supra, a complaint was filed against a County Clerk of Courts

that “ask[ed] for relief solely from [the clerk] and not any public body or office.”

Lambert at ¶ 16. Yet the Supreme Court of Ohio still found that this complaint

initiated a suit against the clerk in his official capacity and that the immunity

provisions of R.C. 2744.02 applied. Id. Thus, we find that Sheriff Eckelberry was

sued in his official capacity. We turn now to determine whether any of the

exceptions listed in R.C. 2744.02(B) apply in this case.

       {¶13} The appellants’ complaint does not allege any facts related to (1) the

negligent operation of a motor vehicle; (2) negligence with regard to a proprietary

function; (3) a failure to maintain a public road; (4) a physical defect in a building

used in connection with a governmental purpose; or (5) a provision in the Revised

Code that expressly imposes civil liability. R.C. 2744.02(B). Since this complaint

does not implicate any of the five exceptions listed in R.C. 2744.02(B), the general

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sovereign immunity provision of R.C. 2744.02(A)(1) applies. Thus, this complaint

does not present a claim upon which relief can be granted. For these reasons, the

appellants’ first assignment of error is overruled.

                            Second Assignment of Error

       {¶14} In their second assignment of error, appellants argue that the trial court

abused its discretion by dismissing their claim for injunctive relief on the grounds

that this claim was moot.

                                   Legal Standard

       {¶15} Mootness is a “doctrine of standing in a time frame: The requisite

personal interest that must exist at the commencement of the litigation (standing)

must continue throughout its existence (mootness).” Siferd v. Siferd, 2017-Ohio-

8624, --- N.E.3d ---, ¶ 12, quoting U.S. Parole Commission v. Geraghty, 445 U.S.

388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). “The duty of a judicial tribunal

is to decide actual controversies by a judgment which can be carried into effect, and

not to give opinions upon moot questions or abstract propositions, or to declare

principles or rules of law which cannot effect the matter in issue in the case before

it.” State v. City of Lima, 3d Dist. Allen No. 1-76-62, 1977 WL 199279, *2 (June

24, 1977). “Consequently, a case is moot where a judgment is sought on a matter

that when rendered does not have any practical effect upon the issues raised by the

pleadings.” RLJ Management Co., Inc. v. Larry Baldwin, 3d Dist. Crawford No. 3-

01-16, 2001 WL 1613014 (Dec. 18, 2001).

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                                    Legal Analysis

       {¶16} In this case, the complaint was filed on January 10, 2017, and alleged

that a tort occurred on January 13, 2015. Doc. 1, 2. The appellants did not allege

that Eric remains detained in the Seneca County Jail. Doc. 2. From the complaint,

Eric does not appear to be subject to the practice that the appellants are challenging.

Id. Thus, the complaint has not alleged an existing controversy or established that

an injunction from the trial court could grant Eric any measure of relief. Further,

the appellants have not even alleged that the Seneca County Jail has continued the

practice about which they complain. Id. Rather, the appellants only requested that

the trial court order the Seneca County Jail to cease a practice that had been in place

in 2015. Id. For these reasons, we find that the trial court did not err in finding that

the appellants’ request for injunctive relief was moot. Thus, the appellants’ second

assignment of error is overruled.

                                     Conclusion

       {¶17} Having found no error prejudicial to the appellants in the particulars

assigned and argued, the judgment of the Seneca County Court of Common Pleas is

affirmed.

                                                                  Judgment Affirmed

ZIMMERMAN and PRESTON, J.J., concur.

/hls



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