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14A0491n.06 No. 12-3657 UNITED Case: 12-3657 Document: 129-2 Filed: 07/07/2014 Page: 1 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0491n.06 No. 12-3657 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DONNITA CARMICHAEL, ) ) Plaintiff-Appellant, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR THE ) NORTHERN DISTRICT OF OHIO CITY OF CLEVELAND, ET AL., ) ) Defendants-Appellees. ) Before: BOGGS and MOORE, Circuit Judges; and BARRETT, District Judge. * BARRETT, District Judge. This case arises out of the murder of Tonia Carmichael by Anthony Sowell. Tonia Carmichael was one of eleven African-American women found dead in Sowell’s home in Cleveland, Ohio. Plaintiff, as an individual and administratrix of Carmichael’s estate, brings federal claims under 42 U.S.C. §§1981 and 1983, as well as state-law claims of negligence and wrongful death. The district court granted Defendants’ Rule 12 motions to dismiss and for judgment on the pleadings, and dismissed all claims. We AFFIRM the dismissal of the claims. *The Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio, sitting by designation. Case: 12-3657 Document: 129-2 Filed: 07/07/2014 Page: 2 No. 12-3657, Carmichael v. City of Cleveland, et. al. I A The factual history which follows is based solely on the allegations in the complaint. On November 10, 2008, Tonia Carmichael disappeared. Tonia was a resident of the City of Warrensville Heights. After 48 hours, Tonia’s family attempted to file a missing-persons report with the Warrensville Heights Police. An officer refused to take the report, and told the family that Tonia would show up “after she finishes smoking crack.” Because Tonia was last seen in Cleveland, Tonia’s family attempted to file a missing- persons report with the Fourth District of the Cleveland Police Department. Officer Martinez refused to take the report because Tonia was not a resident of Cleveland. The family began its own search for Tonia, and found her dark-blue Chevy S-10 pickup truck in Cleveland. The family returned to the Cleveland Police Department, but Officer Martinez still refused to take a missing-persons report. After Tonia had been missing for three weeks, the Warrensville Heights Police took a missing-persons report. Anthony Sowell lived at 12205 Imperial Street in Cleveland, which is just a few blocks from where Tonia’s family discovered her pickup truck. In 1990, Sowell pleaded guilty to two counts of attempted rape. While Sowell requested that he be treated for his violent sexual behavior as part of his sentence, the Ohio Department of Rehabilitation and Corrections (“ODRC”) failed to provide him with treatment. Sowell was released from prison in 2005. Sowell never registered as a sex offender, and was not monitored by the Cuyahoga County Sheriff’s Department. 2 Case: 12-3657 Document: 129-2 Filed: 07/07/2014 Page: 3 No. 12-3657, Carmichael v. City of Cleveland, et. al. On December 8, 2008, the Cleveland police arrested Sowell after a bleeding woman ran up to a police car and told the officers that Sowell tried to punch her, choke her and rip off her clothes. The incident was assigned to Cleveland’s Sex Crime Unit and investigated by Detective Georgia Hussein, Detective Kristin Rayburn, Lieutenant Michael Baumiller and Sergeant Antoinette McMahon (“the Cleveland Police Defendants”). The officers spoke to witnesses on Imperial Avenue and met with the victim, who gave a written statement and signed medical releases to allow the officers to get the records of her injuries. The officers took photographs of Sowell, which show scrapes and abrasions on his left shoulder and both legs. The officers also obtained a written statement from Sowell. On December 10, 2008, the officers met with Cleveland Assistant Prosecutor Lorraine Coyne. The officers told Coyne that the victim had no visible signs of injuries. The officers failed to tell Coyne about Sowell’s criminal history or sex-offender status. Coyne decided to release Sowell. According to Plaintiff, Cleveland employs a “straight release and indict later” policy because all criminal suspects must usually be charged within 24 to 48 hours, but resources are scarce. Plaintiff explains that the theory behind the policy is that if more information is obtained later, the case will be presented to the grand jury for a formal indictment. Almost a year later, on October 20, 2009, a naked woman fell from a window of Sowell’s home on Imperial Avenue. After obtaining a warrant, the police searched Sowell’s house on October 28, 2009. The officers eventually found eleven bodies of African-American women. The bodies were hidden in crawl spaces, buried under dirt floors and buried in the back yard. Neighbors had complained about the smell of rotting flesh since 2006. A sausage company located next door to Sowell’s house reported to authorities that Sowell was regularly placing 3 Case: 12-3657 Document: 129-2 Filed: 07/07/2014 Page: 4 No. 12-3657, Carmichael v. City of Cleveland, et. al. filled plastic bags wrapped with duct tape in their dumpster. Tonia’s body was discovered on November 5, 2009. In her complaint, Plaintiff sets forth six claims, albeit in a somewhat confusing manner. The third and sixth claims are not at issue on appeal.1 The first and second claims are brought pursuant to 42 U.S.C. §§ 1981 and 1983 and name only the City of Warrensville Heights and the City of Cleveland. Plaintiff claims racial and national-origin discrimination based on the deliberate refusal to take a missing person report and promptly investigate Tonia’s disappearance; and not promptly “investigating claims of missing African-Americans, while making a prompt investigations [sic] for white or Asian individuals, despite having official policies and procedures to investigate unusual or unaccountable absences.” The fourth claim is for “Negligence/Wrongful Death” and is brought against “defendants enumerated one (1) through sixteen (16) in the caption.” The defendants include the City of Cleveland;2 the City of Warrensville Heights; the Cuyahoga County Board of Commissioners; Gerald T. McFaul, the Cuyahoga County Sheriff;3 the Cuyahoga County Sheriff’s Department; 1The third claim is a claim for wrongful death under Ohio law against Segernia and Anthony Sowell. Because these defendants did not respond to the complaint, the district court dismissed these claims without prejudice. Plaintiff has not appealed their dismissal. In the sixth claim, Plaintiff seeks injunctive relief in the form of counseling and other assistance for Tonia’s survivors. 2In her complaint, Plaintiff also named the City of Cleveland Health Department and Martin Flask, who is Cleveland’s Public Safety Director. However, Plaintiff has not appealed the dismissal of these claims. 3Plaintiff named McFaul in her complaint, but never served McFaul with the complaint. According to a docket entry by the district court, Plaintiff voluntarily dismissed McFaul during a status conference. In its order granting Defendants’ Rule 12 motions, the district court dismissed the claims against McFaul pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff included 4 Case: 12-3657 Document: 129-2 Filed: 07/07/2014 Page: 5 No. 12-3657, Carmichael v. City of Cleveland, et. al. ODRC;4 Martin Flask, Cleveland’s Public Safety Director; the City of Cleveland Health Department; Segernia Sowell; Anthony Sowell; Detective McGlibra, Lieutenant Jelenick, Stephanie Prince and Sergeant Martinez (“the Warrensville Heights Police Defendants”); Georgia Hussein and Kristin Rayburn, who are two of the four Cleveland Police Defendants. Excluded from the fourth claim are Lieutenant Michael Baumiller and Antoinette McMahon, who are the two remaining Cleveland Police Defendants, and Lorraine Coyne,5 who is an assistant prosecutor for the City of Cleveland. Plaintiff’s claim against these Defendants is based upon the failure “to prevent the actions of defendant Anthony Sowell, by allowing Anthony Sowell to be released from confinement without rehabilitative treatment” and “by being generally negligent.” Plaintiff also claims that the Sheriff failed to provide notice to neighbors of a Tier III sex offender’s residence as required by Ohio Revised Code § 2950.11, as amended by the Adam Walsh Act. The fifth claim is for “Negligence/Wrongful Death” and is brought against all Defendants, although the allegations only involve three of the defendants. Plaintiff alleges that the City of Cleveland has a policy and practice that encourages the straight release of dangerous suspects. Plaintiff alleges that Cuyahoga County has a policy and procedure of “not checking on McFaul on her Civil Appeal Statement, but has not specifically addressed his dismissal and has not made any arguments about the claims against him. 4Reginald Wilkinson, ODRC Director and Managing Officer, was not included in the caption of the complaint, but was named in the body of the complaint. In its order granting Defendants’ Rule 12 motions, the district court noted that Wilkinson was not served with the complaint and therefore dismissed the claims against him pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff did not include Wilkinson on her Civil Appeal Statement and has not addressed his dismissal on appeal. 5Coyne is incorrectly identified as Loretta in the complaint. 5 Case: 12-3657 Document: 129-2 Filed: 07/07/2014 Page: 6 No. 12-3657, Carmichael v. City of Cleveland, et. al. sex offenders and their activities.” Finally, Plaintiff brings the claim against Cuyahoga County and the Sheriff for their “reckless, willful and wanton” failure to enforce “sexually oriented offender and related statutes”; for failing to create and enforce adequate policies for enforcing Ohio Revised Code § 2950.11, as amended by the Adam Walsh Act; and for failing to ensure that Sowell registered with the Sheriff’s Department. B On May 1, 2012, the district court granted seven motions filed by Defendants.
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