Opinion
Case No. 3:02-CV-7620
June 18, 2003
Second Amended Order
Plaintiffs BPNC, Inc., Brian Pearson, and Nicholas Costanzo bring this action against defendants Hope Taft, Rae Ann Estep, Pam Laycock, Earl Mack, and Rodney Isaacson in their individual and official capacities, asserting claims under 42 U.S.C. § 1983 and state law. This court has jurisdiction under 28 U.S.C. § 1331. Plaintiffs have abandoned their claim against Taft in her official capacity. Pending is a motion to dismiss brought by Taft in her individual capacity. For the following reasons, defendant's motion shall be granted as to the original and amended complaints.
BACKGROUND
Plaintiffs Brian Pearson ("Pearson") and Nicholas Costanzo ("Costanzo"), Ohio residents, are founders of plaintiff BPNC, Inc., an Ohio corporation. Pearson and Costanzo developed the idea to market "Zippers," portions of ready-to-consume alcohol-infused gelatin, in 1998. The plaintiffs initially intended to sell these products, commonly known as "jello shots," only in northwest Ohio. By the beginning of 2002, however, the plaintiffs were selling Zippers to major retail grocery stores, carryout stores, bars, and restaurants throughout the United States.
Hope Taft ("Taft"), wife of Ohio Governor Robert Taft, expressed concern about Zippers in speeches and press releases. The parties do not dispute that in April, 2002, she suggested that Zippers may be "appealing to young people" and described them as having "colorful, creative labeling and catchy names." (Complaint, Doc. 1 at ¶ 9; Answer, Doc. 26 at ¶ 4). She suggested that if children and underage adults consumed Zippers, the products would cause them great harm.
Plaintiffs allege that the Ohio Department of Liquor Control began investigating them and sought to have criminal charges brought against them. As a result of the investigation, which ended after a grand jury refused to indict them, plaintiffs allege they lost retail customers and were denied a federal license by the Department of Alcohol, Tobacco, and Firearms.
Plaintiffs brought suit against Taft; Rae Ann Estep, Superintendent of the Ohio Department of Liquor Control; Pam Laycock, Chief of the Beer and Wine Section of the Ohio Department of Liquor Control; and Earl Mack and Rodney Isaacson, inspectors for the Ohio Department of Liquor Control, in their personal and official capacities, claiming that the defendants' conduct deprived them of their rights in violation of 42 U.S.C. § 1983. The plaintiffs further allege that the defendants' conduct constituted a conspiracy under color of state law, and that the defendants acted negligently in denying plaintiffs' constitutional rights. Plaintiffs filed an amended complaint that elaborates on, but does not fundamentally alter their allegations or the effect of applying the legal doctrines discussed herein.
Taft moved to dismiss the suit against her in her individual and official capacities, and plaintiffs subsequently abandoned their claim against her in her official capacity.
STANDARD OF REVIEW
No complaint shall be dismissed unless the plaintiff has failed to allege facts in support of plaintiff's claim that, construed in plaintiff's favor, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the inquiry is essentially limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F. Supp. 187, 191 (N.D.Ohio. 1996). The court must accept all the allegations stated in the complaint as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), while viewing the complaint in the light most favorable to the plaintiff. Sheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
DISCUSSION I. Plaintiffs' § 1983 Claim
Plaintiffs claim that defendant Taft is liable in her individual capacity under 42 U.S.C. § 1983 for violating their rights, as guaranteed by the Fourteenth Amendment to the Constitution, by commenting on the appeal of plaintiffs' product to children.
For plaintiffs to establish a violation of § 1983, they must demonstrate that Taft: 1) acted under color of state law; and 2) deprived them of a federal statutory or constitutional right. Flagg Bros. v. Brooks, 436 U.S. 149, 155 (1978). I believe that Taft neither acted under color of state law nor deprived plaintiffs of any federal statutory or constitutional rights.
A. State Action
Taft acts under color of state law only if she is "a public official acting by virtue of [her] official capacity." If Taft is not a public official, she could have acted under color of state law as a private person if she acted "consciously pursuant to some law that gives [her] aid, comfort, or incentive," Adickes v. H.S. Kress Co., 398 U.S. 144, 212 (1970) (citations omitted), or acted "in conjunction with a state official," id. at 212 (citation omitted).
"To constitute state action, `the deprivation must be caused by the exercise of some right or privilege created by the State . . . or by a person for whom the State is responsible,' and `the party charged with deprivation must be a person who may fairly be said to be a state actor.'" West v. Atkins, 487 U.S. 42, 49-50 (1988), quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (state action is that action "fairly attributable to the State.").
Article III, § 1 of the Ohio Constitution, which lists the officers comprising the executive department, provides: "The executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of state, treasurer of state, and an attorney general, . . ." This list does not include the spouse of the state's governor. Plaintiffs do not allege that Taft is either an elected appointed official of the state of Ohio. She is sued, rather, in her capacity as "First Lady" — i.e., because she is the wife of the Governor. That honorific is without legal significance, as may be the fact that she may have some state support (i.e., an office, a staff, a travel and entertainment budget, an automobile and driver, Highway Patrol escort, etc.). The fact that the State of Ohio may make such perquisites available to her, it does so because her husband, and not she, is a State official. The complaint, accordingly, fails to allege facts sufficient to enable a rational trier of fact to find that she acted under color of state law.
Even though Taft is a private citizen, she could be held to act under color of state law if she acted "conspicuously pursuant" to a state law or willfully conspired with a state official acting under color of state law. Adickes, 398 U.S. at 212. Plaintiffs have not alleged that Taft's statements were made pursuant to any specific law. Instead, Taft's statements were her own opinions on the potential dangers of plaintiffs' products. Plaintiffs' allegation that Taft was acting as part of a conspiracy will be discussed infra.
B. Deprivation of Rights
Even if Taft acted under color of state law in making the statements about Zippers, plaintiffs have not suffered a deprivation of a federal or constitutional right. Plaintiffs merely have alleged damage to their commercial reputations, apparently in the belief that they have a federal statutory or constitutional right to be free of criticism of their commercially available product.
The Supreme Court held in Paul v. Davis, 424 U.S. 693, 712 (1976), that reputation is not a liberty or property interest sufficient to invoke the protection of the Due Process Clause ("[I]nterest in reputation is simply one of a number which the State may protect against injury by virtue of its tort law, providing a forum for vindication of those interests by means of damages actions. And any harm or injury to that interest, even where as here inflicted by an officer of the State, does not result in a deprivation of any "liberty" or "property" recognized by state or federal law, . . .").
In this case, Taft's statements of her opinion of a widely available commercial product cannot form the basis of a claim under § 1983, because they did not deprive plaintiffs of any federal or statutory rights protected by the Fourteenth Amendment.
II. Conspiracy Claims
Plaintiffs allege Taft conspired with other state officials to deprive them of their rights under the Constitution. Specifically, plaintiffs allege that the defendants conspired to: 1) interfere with their contractual rights; 2) violate their Fourth Amendment right to be free from unreasonable search and seizure; 3) defame them, thereby interfering with their liberty and property rights; 4) deny their due process rights by revoking a license and label approval without notice and an opportunity to be heard; 5) subject plaintiffs to malicious prosecution; 6) intentionally misstate facts in a warrant application; and 7) delay plaintiffs' permit and license decisions, thereby preventing plaintiffs from exercising their First Amendment right to petition for redress of grievances.
If Taft were a state official, she would be an official of Ohio, the same state as the other defendants, and, therefore, plaintiffs cannot allege she participated in a conspiracy, because officers of the same entity cannot form a conspiracy among themselves. See Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. Of Educ., 926 F.2d 505 (6th Cir. 1991) ("Since all of the defendants are members of the same collective entity, there are not two separate `people' to form a conspiracy.").
Assuming Taft is not a state officer, she could be liable for conspiracy if she was "a willful participant in joint activity with the State or its agents." Adickes, 398 U.S. at 152. The conspiracy claims still must be dismissed against her, however, because BPNC fails to plead its conspiracy claims with the requisite degree of specificity. Plaintiffs' sole allegation regarding Taft's role in the purported conspiracy is that Taft, "upon information and belief, communicated with other Defendants regarding the issuance of permits and licenses for BPNC, Inc." (Amended Complaint, at ¶ 12). These allegations lack the material facts and specificity required to state a claim against a private actor for conspiracy under § 1983. "It is well-settled that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient to state such a claim under § 1983." Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). The complaint contains nothing more than vague and conclusory allegations against Taft. The allegation that Taft communicated with the other defendants about BPNC, even if this factual allegation is accepted as true, is not an allegation that Taft was a willful participant in joint activity with state officers to deny plaintiffs' rights. See Dekoven v. Bell, 140 F. Supp.2d 748, 758 (E.D.Mich. 2001) (citing Azar v. Conley, 456 F.2d 1382, 1384 (6th Cir. 1972) and Blackburn v. Fisk Univ., 443 F.2d 121, 124 (6th Cir. 1971). The court in Dekoven stated: "[T]here must be specific factual allegations showing the existence of the conspiracy, as well as allegations that the conspiring defendants acted with the specific intent to deprive the plaintiff of equal protection of the law." 140 F. Supp.2d at 758. Consequently, plaintiffs' complaint against her must be dismissed for failure to state a claim.
CONCLUSION
Plaintiffs have not alleged facts from which this court could conclude that defendant Hope Taft acted under color of state law to deprive them of their constitutional rights. Their claims of conspiracy are likewise unavailing, and Taft's motion to dismiss all claims against her must be granted.
It is, accordingly,
ORDERED THAT Defendant Hope Taft's motion to dismiss be, and the same hereby is, granted as to the original and amended complaints.
So ordered