[Cite as Kennedy v. Specht, 2018-Ohio-3629.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                   ASHTABULA COUNTY, OHIO


KATHLEEN KENNEDY, et al.,                      :        OPINION

             Plaintiffs-Appellants,            :
                                                        CASE NO. 2017-A-0079
    - vs -                                     :

HAROLD E. SPECHT, JR., et al.,                 :

             Defendants-Appellees.             :


Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CV
0871.

Judgment: Reversed and remanded.


Timothy T. Reid, Michael P. Quinlan, and Veronica T. Garofoli, Mansour Gavin LPA,
North Point Tower, 1001 Lakeside Avenue, Suite 1400, Cleveland, OH 44114 (For
Defendants-Appellees).

James Kennedy, pro se, Grafton Correctional Institution, 2500 South Avon Belden
Road, Grafton, OH 44044, and Kathleen Kennedy, pro se, 2381 State Line Road,
Pierpont, OH 44082 (Plaintiffs-Appellants).



DIANE V. GRENDELL, J.

        {¶1}    Plaintiffs-appellants appeal the Judgment of the Ashtabula County Court

of Common Pleas, dismissing their Complaint for failure to state a claim upon which

relief may be granted. The issue before this court is whether prosecuting attorneys are

entitled to absolute immunity from civil liability for their role in the disposing of seized

property after the conclusion of judicial proceedings. For the following reasons, we
reverse the decision of the court below and remand this matter for further proceedings

consistent with this opinion.

       {¶2}   On December 30, 2016, plaintiffs-appellants, Kathleen and James

Kennedy, filed a Civil Complaint in the Ashtabula County Court of Common Pleas

against Nicholas A. Iarocci, Ashtabula County Prosecutor, and Harold E. Specht, Jr.,

Chief Assistant Prosecutor. The Complaint alleged, in relevant part:

              On June 12, 2011, a Search Warrant was issued * * * for the
              residential property of the plaintiffs, in connection with a series of
              criminal charges ultimately lodged against Plaintiff James Kennedy
              * * *[.]

              In the execution of the Search Warrant, a large amount of firearms
              and ammunition * * *, all legally jointly owned by both plaintiffs were
              seized * * *[.]

              ***

              In early April, 2016, Plaintiff James Kennedy encountered a
              prisoner law clerk * * * [who] assisted him in drafting a Motion to
              Order Release of Property seeking the release of the Plaintiff’s
              property to Plaintiff Kathleen Kennedy, * * * which was filed in the
              Court on April 19, 2016[.]

              On April 26, 2016, the Trial Court answered the pleading, stating
              “Per the Judgment Entry filed June 18, 2014, the property was
              destroyed” and dismissing the Motion as moot[.]

              ***

              Upon receipt of the Court’s decision on the Motion to Order
              Release of Property, Plaintiff Kathleen Kennedy went to the
              Courthouse and * * * found an Entry dated 05/29/14 entitled “Motion
              to Dispose of Evdeince [sic] with certificate of service” * * * which
              was granted by Entry dated 06/18/1[4] * * *[.] [T]he certificate of
              service claimed that service had been effected “via e-mail” to
              attorney Ronald D. Yarwood, on May 29, 2014 * * *[.]

              The “Motion to Dispose of Evidence” was executed by Defendant
              Chief Assistant Ashtabula County Prosecutor Harold E. Specht, Jr.,
              under the name of Defendant Ashtabula County Prosecutor



                                             2
             Nicholas A. Iarocci as the progenitors of the pleading, as well as
             the claim of service thereof[.]

             ***

             Attorney Ronald D. Yarwood had been trial counsel for Plaintiff
             James Kennedy and had moved to be withdrawn as such, with the
             motion granted and duly entered on the docket, with notice to the
             prosecutor, * * * on January 18, 2013 * * *[.]

             ***

             Attorney Yarwood, upon reviewing his e-mail, found no indication
             that he had ever been served with the defendants’ pleading, * * *
             and confirm[ed] that the motion was filed well after Attorney
             Yarwood had ended his representation of Plaintiff James Kennedy.

      {¶3}   Based on these allegations, the Kennedys sought relief under theories of

fraudulent conversion, wrongful taking, bailment, and wrongful conversion.

      {¶4}   On February 23, 2017, Specht and Iarocci filed a Motion to Dismiss

pursuant to Ohio Civ.R. 12(B)(6), on the grounds that “the Defendants are entitled to

absolute immunity and Plaintiffs cannot state a claim upon which relief can be granted.”

      {¶5}   On March 9, 2017, the Kennedys filed a Memorandum contra Motion to

Dismiss, to which Specht and Iarocci filed a Response on March 21, 2017.

      {¶6}   On October 30, 2017, the trial court issued a Judgment Entry, granting the

Motion to Dismiss.      The court ruled: “[T]he individually named Defendants, as

prosecuting attorneys, are immune from individual liability in the course of performing

prosecutorial functions in this matter, based upon the factual allegations.         * * *

Furthermore, Plaintiff James Kennedy is precluded from owning firearms due to his

felony convictions.   * * *   There are not sufficient facts to show Plaintiff Kathleen

Kennedy has an ownership interest in the contraband entitling her to any relief.”




                                            3
       {¶7}   On November 15, 2017, the Kennedys filed a Notice of Appeal.              On

appeal they raise the following assignment of error:

       {¶8}   “[1.] The Trial Court erred as a matter of law in affording absolute

prosecutorial immunity to the defendants as a basis for dismissal under Civ.R.

12(B)(6).”

       {¶9}   Ohio Civil Rule 12(B)(6) provides for the dismissal of a cause of action for

“failure to state a claim upon which relief can be granted.” “A motion to dismiss for

failure to state a claim upon which relief can be granted is procedural and tests the

sufficiency of the complaint.” State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65

Ohio St.3d 545, 548, 605 N.E.2d 378 (1992).            “In order for a court to dismiss a

complaint for failure to state a claim upon which relief can be granted (Civ.R. 12(B)(6)),

it must appear beyond doubt from the complaint that the plaintiff can prove no set of

facts entitling him to recovery.” O’Brien v. Univ. Community Tenants Union, Inc., 42

Ohio St.2d 242, 327 N.E.2d 753 (1975), syllabus.

       {¶10} An order granting a motion to dismiss for failure to state a claim upon

which relief may be granted is “subject to de novo review.” Perrysburg Twp. v.

Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5.

       {¶11} Under Ohio political subdivision tort liability law, “an employee [of a

political subdivision] who is a county prosecuting attorney * * * is entitled to any defense

or immunity available at common law or established by the Revised Code.”               R.C.

2744.03(A)(7).

       {¶12} At common law, “prosecutors are considered ‘quasi-judicial officers’

entitled to absolute immunity granted judges, when their activities are ‘intimately

associated with the judicial phase of the criminal process.’” Willitzer v. McCloud, 6 Ohio


                                             4
St.3d 447, 449, 453 N.E.2d 693 (1983), citing Imbler v. Pachtman, 424 U.S. 409, 430,

96 S.Ct. 984, 47 L.Ed.2d 128 (1976). “However, ‘absolute immunity does not extend to

a prosecutor engaged in essentially investigative or administrative functions’[;] * * *

[w]hile performing these functions, he is entitled to only a qualified immunity.” (Citation

omitted.) Id.

       {¶13} The trial court dismissed the Kennedys’ Complaint on the grounds that

Specht and Iarocci were entitled to prosecutorial immunity under the facts alleged. We

disagree. The conduct at issue in the present case involves the disposition of property

following the close of a criminal prosecution. This is a quintessentially administrative

matter inasmuch as the judicial phase of the proceedings had closed prior to Specht

and Iarocci moving to dispose of the evidence.1

       {¶14} This conclusion is supported by the sound judicial reasoning of the federal

appellate courts:

                After a criminal prosecution has reached its final conclusion, the
                government’s interest in seized property dissipates, along with the
                prosecutor’s role as an advocate. See Pfeiffer v. Hartford Fire Ins.
                Co., 929 F.2d 1484, 1490 (10th Cir.1991) (explaining that “the more
                distant a function is from the judicial process and the initiation and
                presentation of the state’s case, the less likely it is that absolutely
                immunity will attach”) (citation omitted). Where applicable, qualified
                immunity provides sufficient protection from liability to prosecutors
                managing and retaining a criminal defendant’s seized property after
                the criminal case, appellate and post-conviction review are
                completed. Coleman, 697 F.2d at 1346-47; Schrob v. Catterson,
                948 F.2d 1402, 1419 (3d Cir.1991). And to hold otherwise “would
                allow the government to seize [and continue to retain] property ...
                without accountability.” Schrob, 948 F.2d at 1420.




1. On October 29, 2012, James Kennedy pled guilty to Attempted Aggravated Murder and multiple
counts of Felonious Assault. This court affirmed James’ conviction on October 15, 2013. State v.
Kennedy, 11th Dist. Ashtabula No. 2013-A-0002, 2013-Ohio-4553.


                                               5
Crumpton v. Podolak, 171 Fed.Appx. 745, 749 (10th Cir.2006); Herrin v. Dunham,

E.D.Mich. No. 05-CV-10245, 2008 WL 2781456, *7 (“the ‘retention and alleged

mismanagement of the seized property’ that is not used as evidence falls within the

breadth of administrative functions for which the prosecutor is only entitled to qualified

immunity”) (citation omitted) (cases cited).

       {¶15} The other reasons proffered by the trial court in support of dismissal are

likewise inadequate. As a person convicted of a “felony offense of violence,” James has

lost the right to “acquire, have, carry, or use any firearm or dangerous ordnance.” R.C.

2923.13(A)(2). The statute does not stand for the proposition that any ownership rights

or interests James may have in a firearm or dangerous ordnance are automatically

forfeit. Moreover, James’ inability to possess firearms has no relevance to Kathleen’s

alleged ownership interest in the seized property.

       {¶16} Kathleen has not demonstrated “sufficient facts to show [she] has an

ownership interest in the contraband,” but she has pled an ownership interest. For the

purposes of deciding a motion to dismiss, her claim of having an ownership interest

must be accepted as true. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192, 532

N.E.2d 753 (1988) (“[i]n construing a complaint upon a motion to dismiss for failure to

state a claim, we must presume that all factual allegations of the complaint are true”);

State ex rel. Cincinnati Inquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918

N.E.2d 515, ¶ 7 (“in general, a plaintiff ‘is not required to prove his or her case at

the pleading stage’”) (citation omitted).

       {¶17} The sole assignment of error is with merit.

       {¶18} For the foregoing reasons, the Judgment of the Ashtabula County Court of

Common Pleas, dismissing the Kennedys’ Complaint for failure to state a claim upon


                                               6
which relief could be granted, is reversed and this matter is remanded for further

proceedings consistent with this opinion. Costs to be taxed against appellees.



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.


                     ____________________________________


COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

      {¶19} I respectfully dissent.

      {¶20} “A defendant may move to dismiss a complaint for failure to state a claim

upon which relief can be granted, according to Civ.R. 12(B)(6). An appellate court’s

review of a dismissal under Civ.R. 12(B)(6) is de novo. West v. Sheets, 11th Dist. No.

2001-L-183, 2002-Ohio-7143, at ¶9, citing Mitchell v. Speedy Car X, Inc. (1998), 127

Ohio App.3d 229, 231 * * *. In order for a court to dismiss a complaint under Civ.R.

12(B)(6), ‘“(* * *) it must appear beyond doubt from the complaint that the plaintiff can

prove no set of facts entitling him to recovery.”’ Taylor v. London (2000), 88 Ohio St.3d

137, 139 * * *, quoting O’Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio

St.2d 242, * * * syllabus. ‘“A complaint should not be dismissed for failure to state a

claim merely because the allegations do not support the legal theory on which the

plaintiff relies. Instead, a trial court must examine the complaint to determine if the

allegations provide for relief on any possible theory.”’ Firstmerit Corp. v. Convenient

Food Mart, Inc. (Mar. 7, 2003), 11th Dist. No. 2001-L-226, 2003-Ohio-1094, at ¶7,

quoting Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 667 * * *.           Thus, ‘(i)n

construing a complaint upon a motion to dismiss for failure to state a claim, we must


                                           7
presume that all factual allegations of the complaint are true and make all reasonable

inferences in favor of the non-moving party.’ Mitchell v. Lawson Milk Co. (1988), 40

Ohio St.3d 190, 192 * * *.” (Parallel citations omitted.) Karnofel v. Beck, 11th Dist.

Trumbull No. 2008-T-0057, 2008-Ohio-6874, ¶8.

       {¶21} Civ.R. 12(B)(6) states in part: “Every defense, in law or fact, to a claim for

relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim,

shall be asserted in the responsive pleading thereto if one is required, except that the

following defenses may at the option of the pleader be made by motion: * * * (6) failure

to state a claim upon which relief can be granted * * *. A motion making any of these

defenses shall be made before pleading if a further pleading is permitted.”

       {¶22} R.C. 2744.03, “Defenses and immunities,” provides in part:

       {¶23} “(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 any act or omission in connection with a governmental or

proprietary function, the following defenses or immunities may be asserted to establish

nonliability:

       {¶24} “(1) The political subdivision is immune from liability if the employee

involved was engaged in the performance of a judicial, quasi-judicial, prosecutorial,

legislative, or quasi-legislative function.

       {¶25} “* * *

       {¶26} “(7) 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




                                               8
is entitled to any defense or immunity available at common law or established by the

Revised Code.”

       {¶27} “‘It is well-settled that prosecutors are considered “quasi-judicial officers.”

Willitzer v. McCloud (1983), 6 Ohio St.3d 447, 448 * * *; see, also, Imbler v. Pactman

(1976), 424 U.S. 409, 430 * * *. In executing duties “intimately associated” with the

“judicial phase” of a particular proceeding, e.g., initiating a prosecution, a prosecutor is

entitled to absolute immunity from civil liability. Id. at 424. * * * Affording a prosecutor

complete immunity in such situations is premised upon the public’s compelling interest

in protecting the integrity of the judicial process. Willitzer at 448 * * *; see, also, Imbler

at 427. Without full immunity, a prosecutor would be discouraged from the vigorous and

fearless performance of his or her duties that is necessary to the proper function of the

judicial system at large. Id. at 428. Thus, although a genuinely wronged defendant (or

respondent) may be without a civil remedy, “(* * *) it has been thought in the end better

to leave unredressed the wrongs done by dishonest officers than to subject those who

try to do their duty to the constant dread of retaliation.” Id., quoting Gregoire v. Biddle

(1949), 177 F.2d 579, 581.’ Transky [v. Ohio Civil Rights Comm., 193 Ohio App.3d 354,

2011-Ohio-1865,] at ¶13.

       {¶28} “Alternatively, if a prosecutor engages in actions that can be considered

merely investigative or administrative, he or she is entitled only to qualified immunity.

Id. at ¶14 * * *; citing Willitzer, supra. In considering whether a prosecutor is absolutely

immune, or merely qualifiedly immune, courts utilize a ‘functional analysis’ of the

conduct in question. Willitzer at 449 * * *; see, also, Transky, supra.” (Parallel citations

omitted.) Grybosky v. Ohio Civil Rights Comm., 11th Dist. Ashtabula No. 2010-A-0047,

2011-Ohio-6843, ¶20-21.


                                              9
       {¶29} In this case, appellees are prosecuting attorneys, i.e., “quasi-judicial

officers.”   The act of filing a motion to dispose of evidence with the trial court by

appellees qualifies as an act “intimately associated” with the “judicial phase” of a

particular proceeding and is neither administrative nor investigative. Grybosky, supra,

at ¶20-21. All factual allegations made in appellants’ complaint relate to actions taken

by appellees while acting as advocates of the state.

       {¶30} Appellants raise an issue regarding lack of service of appellees’ motion to

dispose of evidence and allege that appellees’ intent was to defraud them of their

property. The record before us, however, does not establish that appellees acted with

any malice or bad faith. No exception to the provision of prosecutorial immunity applies

here. R.C. 2744.03(A) and (B).

       {¶31} In any event, this writer stresses that Mr. Kennedy is precluded from

owning firearms due to his felony convictions, he cannot delegate the authority to

possess the firearms to another individual, and Mrs. Kennedy failed to produce any

proof of ownership.     See U.S. v. Headley, 50 Fed.Appx. 266, 267 (6th Cir.2002)

(Holding that as a convicted felon, the defendant was prevented from possessing the

guns and ammunition. Because the defendant lacked the power to lawfully possess the

firearms himself, he also could not delegate the authority to possess the firearms to

another individual.   Thus, the defendant could not seek return of the firearms and

ammunition nor could he request that they be transferred to a third-party for him.)

       {¶32} Because appellees are entitled to absolute immunity, the trial court did not

err in granting their Civ.R. 12(B)(6) motion to dismiss.

       {¶33} I respectfully dissent.




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