Parra v. Jackson , 2021 Ohio 1188 ( 2021 )

[Cite as Parra v. Jackson, 2021-Ohio-1188.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
ANDREA PARA, INDIVIDUALLY :
AND AS ADMINISTRATOR,
: No. 109516
Plaintiff-Appellee,
:
v.
:
FRANK G. JACKSON, ET AL.,
:
Defendants.
:
[Appeal by Calvin D. Williams]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 8, 2021
Civil Appeal from the Cuyahoga County Common Pleas Court
Case No. CV-19-924682
Appearances:
The Pattakos Law Firm L.L.C., Peter Pattakos, and Rachel
Hazelet, for appellee.
Barbara A. Langhenry, Cleveland Director of Law, and
William M. Menzalora, Chief Assistant Law Director, and
Timothy J. Puin, Assistant Law Director, for appellant.
MICHELLE J. SHEEHAN, P.J.:
Plaintiff-appellee Andrea Parra’s son, Antonio Parra, was fatally shot
when he stood outside a barbershop in Cleveland’s Clark-Fulton neighborhood.
After the shooting, the two gunmen fled the scene in a vehicle registered to Frank Q.
Jackson, a grandson of Cleveland Mayor Frank G. Jackson. Andrea Parra
(“plaintiff” hereafter) filed a complaint against Mayor Jackson and Calvin D.
Williams, Cleveland Police Chief, alleging the gunmen responsible for her son’s
murder were gang members affiliated with Mayor Jackson’s grandsons and he and
Chief Williams used their public office to obstruct the investigation of the mayor’s
grandsons’ criminal activities, including Antonio Parra’s murder. This appeal is
limited to a review of the trial court’s decision denying Chief Williams’s
Civ.R. 12(B)(6) motion to dismiss plaintiff’s claims against him in his personal
capacity on the basis of immunity. For the following reasons, we affirm the trial
court’s judgment.
The Complaint
On November 7, 2019, Andrea Parra, individually and as the
administrator of her son’s estate, filed a complaint against Mayor Jackson, in his
personal and official capacity as the mayor of the city of Cleveland, and Chief
Williams, in his personal and official capacity as the chief of the Cleveland Police
Department. The complaint raised three claims: wrongful death (Count 1) against
Mayor Jackson and intentional infliction of emotional distress (Count 2) and
obstruction of justice (Count 3) against both defendants.
According to the complaint, around 4:30 p.m. on August 28, 2019,
while Antonio Parra stood outside a barber shop on Clark Avenue, two men
approached him and, without any provocation, shot him multiple times with
handguns. The two men fled in a Volkswagen Passat. Antonio Parra was
pronounced dead at the scene.
Based on the license plate number witnesses provided to the police,
the police determined that the vehicle was registered to Frank Q. Jackson, Mayor
Jackson’s grandson. Several police officers went to the mayor’s residence shortly
afterward to investigate the homicide. They found the mayor, Frank Q. Jackson,
and an unidentified juvenile there. The police took the unidentified juvenile into
custody but not Frank Q. Jackson. According to plaintiff, the police never
questioned Frank Q. Jackson or performed a gunshot residue test on him after
Mayor Jackson told the police officers that his grandson would not answer their
questions. The mayor allegedly also told the police officers not to use their body
cameras while in his residence. Plaintiff alleged this was a deviation from the police
department policy regarding the use of body cameras and also that this was not the
first time the police failed to comply with the body camera policy in its investigation
of prior criminal incidents involving Frank Q. Jackson.
According to the allegations in the complaint, which were primarily
based on media accounts from Cleveland.com, Cleveland 19 News, and News 5
Cleveland, Frank Q. Jackson is a leader of the “No Limit-700 Gang.” He and the
mayor’s 16-year-old great-grandson, also a member of the gang — together referred
to as the mayor’s “grandsons” in the complaint — have an extensive history of gang-
related criminal activities. Mayor Jackson was aware of the criminal activities but
used the influence of his public office to obstruct the investigation of these criminal
activities. The complaint further alleged that Parra was murdered by two men
“believed to be affiliated with the Mayor’s grandsons” and they committed the
murder to gain favor with the mayor’s grandsons and to increase their status in the
gang.
The complaint alleged that the Volkswagen Passat seen fleeing the
scene after the murder was set on fire in a location 2.5 miles from the mayor’s
residence. While Frank Q. Jackson told the police he sold the vehicle prior to August
28, 2019, no record of the sale had been produced and Frank Q. Jackson was cited
for a traffic violation while driving the vehicle as recently as August 13, 2019.
The complaint alleged that Mayor Jackson and Chief Williams, who
serves at the pleasure of the mayor and has exclusive control of the police force,
“exacerbated the harm resulting from Parra’s murder by obstructing its
investigation.” It alleged that “[a]t the Mayor’s instruction,” Cleveland police failed,
in its investigation immediately following the shooting, to question Frank Q.
Jackson, conduct a gunshot residue test on him, take him into custody, or record the
officers’ interactions with the Jacksons on their body camera while at the mayor’s
residence, despite the requirements of established departmental policies and
procedures.
According to the complaint, on September 10, 2019, the county
prosecutor’s office issued a statement confirming Frank Q. Jackson being a “prime
suspect” in Antonio Parra’s murder. Despite the pressure from the community,
including the county prosecutor and members of Cleveland City Council, Mayor
Jackson and Chief Williams have refused to appoint an independent agency to
investigate the murder. Chief Williams allegedly told reporters, “Why fix something
that is not broken?”
Regarding the claim of wrongful death against Mayor Jackson,
plaintiff alleged that, two months before Parra’s murder, Frank Q. Jackson violently
assaulted an 18-year-old woman, as witnessed by two people, but the city prosecutor
failed to pursue charges for the assault or refer the matter to the county prosecutor.
While the grand jury eventually indicted Frank Q. Jackson for felonious assault
sometime after the murder, plaintiff alleged that had the mayor not “interfered with,
obstructed, or otherwise failed to ensure the prosecution of his grandson” for the
assault incident, Frank Q. Jackson would have been immediately prosecuted for the
crime. Plaintiff alleged that Antonio Parra’s murder “was a foreseeable result of the
Mayor’s intentional obstruction of justice in cases involving his grandsons.” Plaintiff
stated that “[t]he culture of impunity fostered by the Mayor with respect to his
grandsons’ criminal conduct culminated in” Parra’s murder. She maintained that
Mayor Jackson knew or should have known that the city’s deviation from
established police procedures in cases involving his grandsons would cause them
and their affiliates to continue to engage in violent crime, believing they could do so
with impunity.
While the wrongful death claim against Mayor Jackson was premised
on the allegation that Parra’s murder was committed by individuals who were
“affiliated with” the mayor’s grandsons and “the culture of immunity” fostered by
him culminated in Parra’s murder, the claims of intentional infliction of emotional
distress and obstruction of justice against both Mayor Jackson and Chief Williams
related to their alleged cover up regarding Parra’s murder to protect Mayor
Jackson’s grandsons. Plaintiff alleged that “[t]he anomalies and deviations from
established policies and procedures in the Cleveland Police Department’s
investigation of Parra’s murder * * * were the result of intentional conduct by the
Defendants, including the Mayor’s explicit and implicit instructions to the Police
Department,” which is undertaken to “shield the Mayor and his administration from
public scrutiny and to shield the Mayor’s relatives from liability for their criminal
conduct.” Plaintiff alleged the defendants engaged in the conduct “with conscious
disregard of the rights of Mr. Parra, his kin, and his estate, and with certainty of
inflicting severe harm on them.”
Plaintiff alleged that she was entitled to relief for her claim of
intentional infliction of emotional distress because the mayor or police chief’s
intentional obstruction of a murder investigation to further their own personal ends
constituted “extreme and outrageous conduct that is utterly intolerable in a civilized
community.” Plaintiff alleged she suffered anxiety, depression, and posttraumatic
stress disorder as a proximate result of the defendants’ conduct. Similarly, she
claimed she was entitled to relief for her claim of obstruction of justice, for which
compensatory damages are available pursuant to R.C. 2307.60.
Chief Williams’s Motion to Dismiss and the Instant Appeal
In response to plaintiff’s complaint, Chief Williams filed a
Civ.R. 12(B)(6) motion to dismiss for a failure to state a claim upon which relief
could be granted. He argued that the plaintiff’s complaint failed to plead sufficient
facts to avoid statutory immunity he is entitled to under R.C. Chapter 2744 in both
his official and personal capacity. Chief Williams further argued that the complaint
failed to sufficiently plead the elements to establish a cause of action of intentional
infliction of emotional distress and obstruction of justice against him.
Plaintiff filed a notice stating that she did not contest a dismissal of her
claims against Chief Williams in his official capacity. The trial court then issued a
decision granting Chief Williams’s motion to dismiss the claims against him in his
official capacity but denying his motion to dismiss the claims against him in his
personal capacity. Williams now appeals.1
William assigns the following error for our review:
The trial court erred in denying in part the motion to dismiss of
Appellant-Defendant Calvin D. Williams because none of the
exceptions to immunity from suit under the Ohio Political Subdivision
1Mayor Jackson also filed a Civ.R. 12(B)(6) motion to dismiss. The trial court similarly
granted his motion to dismiss the claims against him in his official capacity but denied
the motion to dismiss the claims against him in his personal capacity. Mayor Jackson did
not appeal from the trial court’s decision.
Tort Liability Act, R.C. 2744.03(A)(6)(b) apply to the claims of
Appellee-plaintiff against Chief Williams in his personal capacity.
R.C. Chapter 2744 governs the immunity of political subdivisions and
their employees. When analyzing the immunity of a political subdivision,
R.C. 2744.02 applies and the court engages in a three-tier analysis set forth in that
statute. Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585,
¶ 8. When analyzing the immunity of an employee of a political subdivision, instead
of the three-tier analysis, R.C. 2744.03(A)(6) applies. Id. at ¶ 10.
Furthermore, where a named defendant officer of a political
subdivision is sued in his or her official capacity, R.C. 2744.02 applies; where the
employee is sued in his or her personal capacity, R.C. 2744.03(A)(6) applies. Jones
v. Norwood, 1st Dist. Hamilton No. C-120237, 2013-Ohio-350 ¶ 37. Because this
appeal only concerns the trial court’s denial of Chief Williams’s motion to dismiss
the claims against him in his personal capacity, the only issue before us is whether
R.C. 2744.03(A)(6) applies to remove immunity from Chief Williams regarding
plaintiffs’ claims of intentional infliction of emotional distress and obstruction of
justice.
Civ.R. 12(B)(6) Motion to Dismiss
A Civ.R. 12(B)(6) motion to dismiss for failure to state a claim tests the
sufficiency of a complaint. Assn. for Defense of Washington Local School Dist. v.
Kiger, 42 Ohio St.3d 116, 537 N.E.2d 1292 (1989). The Civ.R. 12(B)(6) dismissal of
a complaint for failure to state a claim upon which relief can be granted is
appropriate if, after presuming the truth of all factual allegations of the complaint
and making all reasonable inferences in a nonmoving party’s favor, it appears
beyond doubt that the nonmoving party could prove no set of facts entitling the
moving party to the requested relief. Rosen v. Celebrezze, 117 Ohio St.3d 241,
2008-Ohio-853, 883 N.E.2d 420, ¶ 13. In considering a Civ.R. 12(B)(6) motion to
dismiss, the court is limited to the four corners of the complaint. Thompson v. Cent.
Ohio Cellular, Inc., 93 Ohio App.3d 530, 639 N.E.2d 462 (8th Dist.1994). Finally,
as pertinent to this case, the affirmative defense of immunity under R.C. Chapter
2744 may be the basis of a dismissal under Civ.R. 12(B)(6). Main v. Lima, 3d Dist.
Allen No. 1-14-42, 2015-Ohio-2572, ¶ 15.
On appeal, our review of the trial court’s decision regarding a
Civ.R. 12(B)(6) motion is de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79,
2004-Ohio-4362, 814 N.E.2d 44.
Ordinarily, the denial of a Civ.R. 12(B)(6) motion is not a final
appealable order. However, R.C. 2744.02(C) provides that “[a]n order that denies a
political subdivision or an employee of a political subdivision the benefit of an
alleged immunity from liability as provided in this chapter or any other provision of
the law is a final order.” When the trial court denies a motion to dismiss where the
motion was predicated on political subdivision immunity under R.C. Chapter 2744,
the judgment is a final appealable order. DiGiorgio v. Cleveland, 196 Ohio App.3d
575, 2011-Ohio-5824, 964 N.E.2d 495, ¶ 11 (8th Dist.), citing Hubbell v. Xenia, 115
Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878.
Analysis
R.C. 2744.03(A)(6) establishes the framework of analysis for
determining whether a political subdivision employee is entitled to immunity. It
provides that an employee of a political subdivision is immune from tort liability,
with three exceptions. The exceptions to immunity per the statute are set forth as
follows:
(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;
(c) Civil liability is expressly imposed upon the employee by a section
of the Revised Code.
Malicious conduct is conduct “‘indulging or exercising malice;
harboring ill will or enmity.’” Jackson v. Butler Cty. Bd. of Cty. Commrs., 76 Ohio
App.3d 448, 453, 602 N.E.2d 363 (12th Dist.1991), quoting Teramano v. Teramano,
Ohio St.2d 117, 118, 216 N.E.2d 375 (1996). “Malice” can also be defined as “the
willful and intentional design to do injury, or the intention or desire to harm
another, usually seriously, through conduct which is unlawful or unjustified.” Id. at
453-454, citing Bush v. Kelleys, Inc., 18 Ohio St.2d 89, 247 N.E.2d 745 (1969). “Bad
faith” connotes a “dishonest purpose, moral obliquity, conscious wrongdoing,
breach of a known duty through some ulterior motive or ill will partaking of the
nature of fraud.” Jackson v. McDonald, 144 Ohio App.3d 301, 309, 760 N.E.2d 24(5th Dist.2001).
“Wanton” misconduct is “the failure to exercise any care toward those
to whom a duty of care is owed in circumstances in which there is great probability
that harm will result.” Anderson v. Massillon, 134 Ohio St. 3d 380, 2012-Ohio-5711,
983 N.E.2d 266, paragraph three of the syllabus. “Reckless” conduct is conduct
characterized by “the conscious disregard of or indifference to a known or obvious
risk of harm to another that is unreasonable under the circumstances and is
substantially greater than negligent conduct.” Id. at paragraph four of the syllabus.
The parties agree on appeal that the complaint did not allege Chief
Williams acted “manifestly outside the scope of” his employment or liability is
expressly imposed on him by a section of the Revised Code. The only issue on appeal
is whether the complaint contained sufficient factual allegations pursuant to
R.C. 2744.03(A)(6)(b) to survive Chief Williams’s motion to dismiss based on
immunity.
Chief Williams asserts on appeal that the only specific allegation made
specifically against him in the complaint was his refusal to appoint an independent
investigation by an outside agency for Parra’s murder. He claims he has no duty
under the law nor authority under Cleveland’s Charter to appoint an independent
investigator. He argues furthermore that this allegation, even if true, does not rise
to the level of malice, bad faith, wanton conduct, or recklessness. He also claims
that plaintiff’s allegation that the police department conducted a deficient
investigation of the murder “at the Mayor’s instruction” did not specifically allege
that he himself played a role in the deficient investigation.
Regarding Chief Williams’s argument that he has no duty to appoint
an independent investigator, this court has noted that in the context of immunity
analysis for a political subdivision employee, we do not consider traditional tort
concepts of “duty” but only apply the statutory provision in R.C. 2744.03(A)(6)(b),
which precludes immunity if the employee’s conduct is with malicious purpose, in
bad faith, or in a wanton or reckless manner. Moore v. Cleveland, 2017-Ohio-1156,
87 N.E.3d 858, ¶ 48 (8th Dist.). As to Williams’s assertion that Cleveland’s Charter
does not empower him to appoint an independent investigator, our review of a
motion to dismiss is limited to the four corners of the complaint and whether Chief
Williams has such authority is a matter outside the complaint.
While Chief Williams argues that the only specific allegation in the
complaint regarding his action or omission is his failure to appoint an independent
prosecutor, our reading of the complaint reflects otherwise. The allegation regarding
Chief Williams’s failure to appoint an independent investigator was part of the more
general allegations that he (and Mayor Jackson) intentionally obstructed the
investigation of the Parra murder, upon which plaintiff’s claims for intentional
infliction of emotional distress and obstruction of justice were predicated. The
complaint alleged there were “anomalies and deviations from standard policies and
procedures” in the police department’s investigation of Antonio Parra’s murder that
“were the result of intentional conduct by the Defendants” and undertaken “with
conscious disregard of the rights of Mr. Parra, his kin and his estate, and with
certainty of inflicting sever harm on them” to cover up the involvement of Mayor
Jackson’s grandsons. The failure to appoint an independent investigator is not the
only allegation made against Chief Williams, the person in control of the police
department.
Regarding Chief Williams’s assertion that the allegations were not
specific enough to sufficiently allege malice, bad faith, or wanton or reckless
conduct, we note that in Ohio, under notice pleading, a plaintiff is not required to
prove his or her case at the pleading stage. York v. Ohio State Hwy. Patrol, 60 Ohio
St.3d 143, 144-145, 573 N.E.2d 1063 (1991). Civ.R. 8(A)(1) requires only “a short
and plain statement of the claim showing that the party is entitled to relief.” As the
Supreme Court of Ohio explained:
Very often, the evidence necessary for a plaintiff to prevail is not
obtained until the plaintiff is able to discover materials in the
defendant’s possession. If the plaintiff were required to prove his or
her case in the complaint, many valid claims would be dismissed
because of the plaintiff’s lack of access to relevant evidence.
Consequently, as long as there is a set of facts, consistent with the
plaintiff’s complaint, which would allow the plaintiff to recover, the
court may not grant a defendant’s motion to dismiss.
York at 145.
While a plaintiff must plead the operative facts with particularity in
some cases, the plaintiff in a sovereign immunity case does not. David v. Matter,
2017-Ohio-7351, 96 N.E.3d 1012, ¶ 8 (6th Dist.). “Under the rubric of notice
pleading, a plaintiff has no obligation to anticipate the assertion of an affirmative
defense and allege facts to disprove that defense in its complaint.” DSS Servs., L.L.C.
v. Eitel’s Towing, L.L.C., 10th Dist. Franklin No. 18AP-567, 2019-Ohio-3158, ¶ 10.
“‘[A] plaintiff need not affirmatively dispose of the immunity question altogether at
the pleading stage.’” DSS Servs. at ¶ 11, quoting Scott v. Columbus Dept. of Pub.
Utils., 192 Ohio App.3d 465, 2011-Ohio-677, 949 N.E.2d 552, ¶ 8 (10th Dist.). See
also Carswell v. Akron, 9th Dist. Summit No. 29321, 2019-Ohio-4444, ¶ 13-14 (there
is no heightened pleading requirement that would require the plaintiff to allege
specific exceptions to immunity when bringing suit against a political subdivision;
such a plaintiff is under no obligation to prove his or her case regarding immunity
in the initial pleadings). In addition, we note that Civ.R. 9, which addresses pleading
of matters involving state of mind, provides that while the averments of fraud and
mistake shall be stated with particularity, “malice, intent, knowledge, and other
condition of mind of a person may be averred generally.” See Parmertor v. Chardon
Local Schools, 2016-Ohio-761, 47 N.E.3d 942, ¶ 49-50 (11th Dist.) (the public
subdivision employees’ contention that the complaint against them did not allege
specific facts to show they were not immune under R.C. 2744.03(A)(6)(b) lacks
merit pursuant to Civ.R. 9).
Applying the law applicable to Chief Williams’s motion to dismiss
based on his claim of immunity as a political subdivision employee, we are not
convinced that, after presuming all the factual allegations to be true and making all
reasonable inferences in plaintiff’s favor, plaintiff could prove no set of facts to show
Chief Williams acted with malicious purpose, in bad faith, or in a wanton or reckless
manner relating to the investigation of Antonio Parra’s murder.2 A dismissal would
be premature at this stage of the proceedings.
We emphasize that an “employee’s entitlement to statutory immunity
is a separate question from the plaintiff’s ability to establish the elements of his or
her claim.” Argabrite v. Neer, 149 Ohio St.3d 349, 2016-Ohio-8374, 75 N.E.3d 161,
¶ 10. In the instant appeal, we only resolve the question of whether plaintiff’s
complaint survives Chief Williams’s Civ.R. 12(B)(6) motion to dismiss pursuant to
R.C. 2744.03(A)(6)(b). We express no opinion on whether plaintiff could ultimately
prove the elements of the claims of intentional infliction of emotional distress or
obstruction of justice alleged against Chief Williams.3 Our resolution of the
2 Chief Williams also argues that even if the allegations were deemed sufficiently specific,
the complaint was premised on the speculation that Mayor Jackson’s grandsons were
connected to Antonio Parra’s murder. He argues that because the allegation that he acted
with malice, in bad faith, or in a wanton or reckless manner was premised on the mere
speculation regarding the identity of the perpetrators, his motion to dismiss must be
granted. This claim lacks merit because plaintiff’s claims of intentional infliction of
emotional distress and obstruction of justice, unlike the wrongful death claims, do not
depend on the identity of the perpetrators. These claims relate to the alleged obstruction
of the murder investigation by the police department and are independent of the wrongful
death claim.
3To recover on an action for intentional infliction of emotional distress, a plaintiff must
prove:
1) that the actor either intended to cause emotional distress or knew or
should have known that actions taken would result in serious emotional
distress to the plaintiff; 2) that the actor’s conduct was so extreme and
outrageous as to go “beyond all possible bounds of decency” and was such
that it can be considered as “utterly intolerable in a civilized community,”
Restatement of Torts 2d (1965) 73, Section 46, comment d; 3) that the
actor’s actions were the proximate cause of plaintiff’s psychic injury; and 4)
that the mental anguish suffered by plaintiff is serious and of a nature that
“no reasonable man could be expected to endure it,” Restatement of Torts
2d 77, Section 46, comment j.
immunity question is not be construed to reflect on the strength or weakness of
plaintiff’s claims against Chief Williams beyond the narrow context of his motion to
dismiss predicated on immunity of a political subdivision employee.
The assignment of error is without merit, and the trial court’s
judgment is affirmed.
It is ordered that appellee recover of appellant 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
common pleas court 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.
_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
LISA B. FORBES, J., CONCUR
Pyle v. Pyle, 11 Ohio App.3d 31, 34, 463 N.E.2d 98 (8th Dist.1983). Regarding
obstruction of justice, R.C. 2921.32(A) states that
[n]o person, with purpose to hinder the discovery, apprehension,
prosecution, conviction, or punishment of another for crime or to assist
another to benefit from the commission of a crime * * * shall * * * [p]revent
or obstruct any person, by means of force, intimidation, or deception, from
performing any act to aid in the discovery, apprehension, or prosecution of
the other person * * *.
Plaintiff cites R.C. 2307.60, which governs civil recovery for a criminal act, for her
entitlement to damages pursuant to R.C. 2921.32(A).