Claborn v. State

Tonya Claborn, Plaintiff,

v.The State of Ohio, et al., Defendants.

Case No. 2:11-cv-679

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: November 30, 2011

JUDGE GEORGE C. SMITH

Magistrate Judge Kemp

OPINION AND ORDER

This case is before the Court to consider the motion to stay filed by plaintiff Tonya Claborn and the motion to dismiss filed by defendants. Both motions have been fully briefed. For the following reasons, the motion to stay will be denied and the motion to dismiss will be granted in part and denied in part. As part of that latter order, plaintiff will be granted leave to file an amended complaint.

I. Background

Ms. Claborn, proceeding pro se, filed this action on July 28, 2011, asserting claims of interference and retaliation under the Family Medical Leave Act (FMLA), infringement of her First Amendment rights in violation of 42 U.S.C. §1983, and a state law claim for the intentional infliction of emotional distress. Shortly thereafter, on August 10, 2011, Ms. Claborn, still proceeding pro se, moved to stay this action. Defendants Thomas Charles, Daniel A. Fodor, Joseph Montgomery, Thomas Wersell and the State of Ohio have opposed the motion to stay on a number of grounds. Additionally, on September 2, 2011, these defendants filed a motion to dismiss. The Court will turn first to the merits of the motion to stay.

II. The Motion to Stay

In her one-paragraph memorandum in support of her motion for stay, Ms. Claborn asserts that this case should be stayed pending the outcome of her criminal appeal in Case No. 10-CR-001047. That appeal was filed in the Franklin County Court of Common Pleas on June 22, 2011. She contends that she filed this federal action in order to comply with the statutes of limitations applicable to her claims. According to Ms. Claborn, the outcome of her criminal appeal will determine whether she pursues or dismisses this action.

In response, defendants contend that a stay is not warranted for several reasons. Their primary argument is that while a stay may be appropriate in circumstances where a civil defendant may be at risk of self-incrimination by testifying while a criminal matter is pending, in this case Ms. Claborn is the plaintiff and chose to initiate this action. Further, they claim that because Ms. Claborn has already been convicted, she is at no risk of criminal liability and that her Fifth Amendment rights are not implicated by the continuation of this case. Finally, defendants assert that Ms. Claborn has not demonstrated that the outcome of her criminal appeal would have any impact on the issue of their liability for her civil claims. Ms. Claborn's reply simply repeats her earlier argument in favor of a stay.

"A stay of a civil case is an extraordinary remedy that should be granted only when justice so requires." Chao v. Fleming, 498 F.Supp.2d 1034, 1037 (W.D. Mich. 2007). "However, simultaneous criminal and civil cases involving the same or closely related facts may give rise to Fifth Amendment concerns sufficient to warrant a stay of the civil proceedings." Id. "The Fifth Amendment privilege not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answerquestions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Kammer v.Cincinnati Ins. Co., 2010 WL 2474329, *1 (E.D. Mich. June 11, 2010) quoting In re Morganroth, 718 F.2d 161, 164-65 (6th Cir. 1983). District courts have broad discretion in determining whether to stay a civil action under circumstances where the Fifth Amendment is implicated. See Clark v. Lutcher, 77 F.R.D. 415, 418 (M.D. Pa. 1977).

In her motion, Ms. Claborn does not provide any background relating to her criminal conviction. As a result, she does not contend specifically that her civil and criminal cases involve the same or closely related facts. That they do, however, is an inference fairly drawn from the statements in both her motion and reply to the effect that the outcome of her criminal appeal will affect her decision to pursue this case. Ms. Claborn also fails to cite to the Fifth Amendment as a basis for her stay request. Instead, the cursory statements in her briefs suggest that her request arises almost exclusively out of expense and efficiency concerns.

In opposing the stay, the defendants also do not shed any light on the criminal matter, but they do not dispute that overlap exists between the issues involved in this case and the criminal case. Further, the defendants acknowledge the Fifth Amendment issue. However, they contend that Ms. Claborn cannot file this action and then hide behind the Fifth Amendment to prevent defendants from achieving a speedy resolution of this matter. Additionally, the defendants argue that because Ms. Claborn already has been convicted, there is no risk of criminal liability and, therefore, her Fifth Amendment rights are not implicated.

Turning to the defendants' last point first, the Court does not agree that the fact that Ms. Claborn has been convicted eliminates any Fifth Amendment concerns. There is no dispute thatMs. Claborn's conviction is on appeal. As a result, the possibility exists that she could be retried on criminal charges. Accordingly, it appears that she may reasonably invoke her Fifth Amendment privilege against self-incrimination in this case. See Mccloskey v. White, 2011 WL 780793 (N.D. Ohio March 1, 2011), citing Prentice v. Hsu, 280 F.Supp. 384, 388 (S.D.N.Y. 1968) (defendant's conviction in related criminal matter did not mean that questions presented would not incriminate him because the issues were not yet moot where appeal could result in a new trial); Mitchell v. United States, 526 U.S. 314, 326 (1999) (Fifth Amendment privilege against self-incrimination may continue to be asserted until judgment of conviction becomes final). Further, defendants' argument that Ms. Claborn's status as the plaintiff in this action automatically precludes a stay is similarly unpersuasive. See Kammer, supra (plaintiff's motion to stay granted when plaintiff had criminal charges pending against him relating to issues raised in the civil action).

More persuasive to the Court, however, is defendants' argument that Ms. Claborn has not demonstrated that the outcome of her criminal appeal would have any impact on the issue of their liability for her claims here. This argument is made more compelling in light of the defendants' filing of a motion to dismiss on grounds of immunity and failure to state a claim. Because, as further explained below, a ruling on defendants' motion to dismiss does not require the Court to consider any information beyond that presented by Ms. Claborn in her complaint, the concerns which generally might weigh in favor of a stay are not an issue with respect to the current proceedings. That is, Ms. Claborn's Fifth Amendment rights are not now at issue because she will not be required to answer any questions in connection with defending the motion to dismiss, nor in filing an amended complaint, which is an option the Court will afford to her to cure deficienciesin her current complaint. Moreover, Ms. Claborn has responded to the motion to dismiss and has not contended that her criminal proceeding somehow prevented her from doing so fully. Consequently, in light of the current record, the motion to stay will be denied at this time. The Court will now proceed to consider the defendants' motion to dismiss.

III. The Motion to Dismiss

A. Standard of Review

Defendants have moved to dismiss Ms. Claborn's complaint under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6).

Rule 12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come in two varieties: facial and factual. Leader Technologies, Inc. v. Zacks, 2008 WL 440423 at *3 (S.D.Ohio 2008). A facial attack on the subject matter jurisdiction alleged by the complaint merely questions the sufficiency of the pleading. Ohio Nat. Life Ins. Co. v. U.S., 922 F.2d 320, 325 (6th Cir.1990). In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss. Id. On the other hand, when a court reviews a complaint under a factual attack, no presumptive truthfulness applies to the factual allegations. Id. When facts presented to the district court give rise to a factual controversy, the district court must weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist. Id.

A motion to dismiss under Fed. R. Civ. P 12(b)(6) should not be granted if the complaint contains "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). All well-pleaded factual allegations must be taken as true and be construed most favorably toward the non-movant. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974);Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Rule 8(a) admonishes the Court to look only for a "short and plain statement of the claim," however, rather than requiring the pleading of specific facts. Erickson v. Pardus, 551 U.S. 89 (2007).

A 12(b)(6) motion to dismiss is directed solely to the complaint and any exhibits attached to it. Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983). The merits of the claims set forth in the complaint are not at issue on a motion to dismiss for failure to state a claim. Consequently, a complaint will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) only if there is no law to support the claims made, or if the facts alleged are insufficient to state a claim, or if on the face of the complaint there is an insurmountable bar to relief. See Rauch v. Day & Night Mfg. Corp., 576 F.2d 857, 858 (6th Cir. 1976). Rule 12 (b)(6) must be read in...