Southern District of Ohio judge dismisses former HCSO deputy's lawsuit

A federal lawsuit filed by former Highland County Sheriff's Office Chief Deputy Brandon Stratton has been dismissed, after counsel for the Highland County Board of Commissioners, Highland County Prosecutor Anneka Collins and former Highland County Sheriff Donnie Barrera filed a motion for judgment on the pleadings.

As previously reported, Stratton took legal action in August in U.S. District Court Southern District, Western Division, citing a federal retaliation statute contained in 18 U.S.C. Code 1962-1964. He was relieved of his duties as HCSO chief deputy March 20.

The counts against the defendants included: wrongful termination; whistleblower retaliation per Ohio Revised Code 4113.52 against Defendant Highland County Board of Commissioners and Defendant Barrera; wrongful discharge in violation of public policy as to the Highland County Commissioners and Defendant Barrera; defamation as to Defendant Collins and Defendant Barrera; and whistleblower protection pursuant to 18 U.S.C. 1962-1964 as to all defendants.

Attorneys for the county filed a response in October in which they denied many of Stratton’s allegations. According to court records, the county’s legal counsel, David C. Moser of Fishel Downey Albrecht & Riepenhoff LLC, filed a motion for judgment on the pleadings in November, seeking “a judgment in [the county’s] favor on all claims included in [Stratton’s] complaint.”

In that motion, Moser argued that the federal court “lacks subject matter jurisdiction” for the whistleblower retaliation counts and that the listed statute “does not apply to the facts alleged.” For the remaining five counts, Moser wrote in the motion that Stratton’s “complaint fails to allege any cognizable claim for which this Court can offer relief.”

Stratton, through his attorney Jessica L. Olsheski, responded in a Dec. 18 court filing, asking for the county’s motion to be dismissed. The county made another filing in January in support of their November motion.

This week — in a filing dated Feb. 19 — Judge Susan J. Dlott ruled in favor of the county, dismissing the whistleblower retaliation, wrongful discharge, defamation charges (five counts in total) “for lack of subject matter jurisdiction.” For the remaining two counts — whistleblower protection and conspiracy — Judge Dlott “granted judgment on the [county’s pleadings,” agreeing that Stratton’s “allegations are insufficient” for those charges.

According to Dlott’s ruling, the county’s motion on the pleadings was seeking a dismissal of both the “state and federal claims” argued by Stratton. In her decision, Dlott “analyze[d] the federal claims first” and wrote that if the county was “entitled to judgment on the federal claims, then the Court will decline to exercise supplemental jurisdiction over the state law claims.”

Counts six and seven, the whistleblower protection and conspiracy charges, were the two federal claims in Stratton’s complaint. The whistleblower protection charge alleged a violation of the federal Racketeer Influenced and Corrupt Organizations (“RICO”) statute, claiming the county officials “retaliated against [Stratton] for whistleblowing activities in violation of RICO.”

In the county’s motion, Moser wrote that “somewhat confoundingly, Count Six includes one of only two actual federal claims identified in the Complaint, yet it is by far the furthest stretch of conceivable liability based on the facts alleged.” According to Moser, “in order to establish a pattern of racketeering activity the plaintiffs must allege at least two predicate acts” — two lesser offenses constituting a bigger crime — and those acts must be among those listed in the federal code.

“Even after liberally construing [Stratton’s] factual allegations into identifiable state or federal crimes, there are no predicate acts alleged under [US Code] 1961(1), which lists crimes such as bribery, murder for hire, and dealings in chemical weapons,” Moser wrote.

Olsheski disagreed, saying that Stratton “satisfied the pattern element of a RICO claim by pleading in the Complaint that” county officials allegedly violated four different “criminal statute[s] listed as a racketeering activity.”

Dlott wrote that “upon a superficial review,” Stratton’s complaint does “appear to meet the relationship and continuity requirements for a pattern of racketeering activity” with “related actions geared toward preventing Stratton from investigating” what he believed to be “evidence of possible serious criminal activity.”

“Nonetheless, courts in the Sixth Circuit have repeatedly held that a single scheme targeting a single victim is inadequate to constitute a racketeering pattern,” Dlott said.

Dlott added that the alleged “actions in this case took place over more than four years, which indicates a pattern,” but only one “scheme” is alleged to have occurred (obstructing Stratton from his investigation,” while Stratton is the sole victim and suffered the only injury (“loss of employment”). In addition, the “single RICO case” Stratton’s attorney listed in support of his response is not enough to “uphold Stratton’s RICO claim,” the judge ruled.

“Consistent with Sixth Circuit authority, the Court holds that Stratton has failed to plead that Defendants engaged in a pattern of racketeering activity for purposes of 18 U.S.C. § 1962(b) and (c),” Dlott ruled. “The Court will grant judgment on the pleadings to Defendants on Stratton’s claim for a violation of RICO on this basis and need not examine Defendants’ other arguments.”

Regarding the other federal count — an allegation that Collins and Barrera “conspired to violate RICO” — Moser wrote in the county’s motion that it was a “throwaway claim.

“Nowhere in the Complaint is there an allegation that the Highland [County] Defendants acted with discriminatory animus based on a constitutionally protected suspect classification, a necessary element,” the county’s motion says.

Dlott wrote only one paragraph on that count, for which she wrote she would “grant judgment on the pleadings to Defendants on Stratton’s RICO conspiracy claim as well.

“Stratton has not pleaded a RICO conspiracy claim upon which relief can be granted because he did not allege the required elements of the purported underlying RICO violation,” Dlott said.

The other five counts in Stratton’s complaint were “five tort claims under Ohio law,” Dlott wrote, and were therefore dismissed.

“A district court can decline to exercise supplemental jurisdiction over the state law claims in circumstances like this when the court ‘has dismissed all claims over which it has original jurisdiction,’” the judge’s decision says. “In fact, the Sixth Circuit has instructed that when all federal claims are dismissed before trial, ‘the balance of considerations usually will point to dismissing the state law claims.’ … Accordingly, the Court will dismiss without prejudice Counts One to Five for lack of subject matter jurisdiction.”

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