The Akron Legal News

Ohio cities cleared of negligence in murder case

ANNIE YAMSON
Special to the Legal News
Published: July 31, 2014

A federal appeals court has cleared two Ohio cities of negligence related to the death of one of 11 women killed by a Cleveland serial murderer.

The 6th U.S. Circuit Court of Appeals recently affirmed the judgment of the U.S. District Court for the Northern District of Ohio which dismissed federal and state-law claims of negligence and wrongful death filed against the cities of Cleveland and Warrensville Heights.

Donnita Carmichael filed suit against the cities, claiming that they discriminated against her sister on the basis of race.

The case stemmed from the murder of Carmichael’s sister, Tonia Carmichael, by Anthony Sowell.

Tonia was one of 11 African-American women found dead in Sowell’s Cleveland home.

Carmichael was the administratrix of Tonia’s estate and filed a complaint on her behalf.

According to the facts provided by the complaint, Tonia disappeared in Nov. 10, 2008.

She was a resident of Warrensville Heights and, after 48 hours, her family attempted to file a missing-persons report with the Warrensville police.

A responding officer refused to take the report and told the family that Tonia would show up “after she finished smoking crack.”

Cleveland also refused to take a missing-persons report because Tonia did not reside in the city, although that was where she was last seen.

The family took matters into its own hands and began a search for Tonia.

They located her pickup truck and attempted to go to police again but were turned away.

The Warrensville Heights Police finally took a missing-persons report after Tonia had been gone for three weeks.

Meanwhile, Anthony Sowell lived in Cleveland just a few blocks from where Tonia’s family discovered her truck.

In 1990, he pleaded guilty to two counts of attempted rape and requested treatment for his violent sexual behavior.

The Ohio Department of Rehabilitation and Corrections declined to provide treatment.

In 2005, Sowell was released from prison. He was never required to register as a sex offender and no supervision or monitoring was required as a condition of his release.

In 2008, Sowell was arrested after a bleeding woman approached a police officer for help.

She told police that Sowell had attacked her and had attempted to rip off her clothes.

The incident was investigated by Cleveland’s Sex Crime Unit, which took witness statements as well as a written statement from Sowell.

Investigating officers met with Cleveland Assistant Prosecutor Lorraine Coyne and informed her that the victim had “no visible signs of injuries” but failed to inform her of Sowell’s criminal history.

Coyne decided to release Sowell and no charges were filed.

Less than a year later, a naked woman fell from a window of Sowell’s home.

Police obtained a warrant and searched the house, eventually finding the bodies of 11 women hidden in crawl spaces, buried under dirt floors and buried in shallow graves in the back yard.

It was discovered that neighbors had been complaining of the smell of rotting flesh for three years.

Tonia’s body was discovered on Nov. 5, 2009.

Sowell was eventually convicted on 11 counts of aggravated murder along with several counts of rape and kidnapping.

He now sits on death row at Ohio’s Chillicothe Correctional Institution.

In her complaint against the cities of Warrensville Heights and Cleveland, Carmichael claimed racial and national-origin discrimination based on “the deliberate refusal to take a missing-persons report and promptly investigate Tonia’s disappearance.”

She also brought claims of negligence and wrongful death based on the “failure to prevent the actions of defendant Anthony Sowell by allowing Sowell to be released from confinement without rehabilitative treatment” and for “being generally negligent.”

Carmichael also noted that the sheriff failed to provide notice of a Tier III sex offender’s residence, as required by the Adam Walsh Act.

According to Carmichael, “the city of Cleveland has a policy and practice that encourages the straight release of dangerous suspects” and Cuyahoga County has a practice of “not checking on sex offenders and their activities.”

Carmichael brought additional claims against Cuyahoga County and the sheriff for their “reckless, willful and wanton failure to enforce sexually-oriented offender and related statutes.”

In 2012, the district court granted motions to dismiss the claims.

That judgment was affirmed in an opinion written on behalf of the 6th Circuit by Judge Michael Barrett, who sat by designation.

Carmichael’s federal claims were brought under sections 1981 and 1983 of the U.S. Constitution.

Section 1981 prohibits racial discrimination in the making and enforcement of contracts.

“Section 1981, as amended by the Civil Rights Act of 1991, does not provide a private cause of action against governmental entities or state actors in their official or individual capacities,” wrote Judge Barrett.

A three-judge appellate panel ruled that Carmichael’s complaint did not contain any allegations that Tonia was discriminated on the basis of race, but rather, because she was a drug user.

She was also unable to prove that the improper investigation or Sowell’s release were based on race.

“Therefore, the district court properly dismissed (Carmichael’s) Section 1981 claim against the city of Warrensville Heights and the city of Cleveland,” Judge Barrett wrote.

The panel went on to address Carmichael’s Section 1983 claims which were analyzed by the district court as being based on violations of Tonia’s substantive due-process and equal-protection rights under the 14th Amendment.

“As the district court explained, the Due Process Clause is ‘phrased as a limitation on the state’s power to act, not as a guarantee of certain minimal levels of safety and security,” Judge Barrett wrote.

Therefore, the appellate panel held that Warrensville Heights and Cleveland “did not have a duty to prevent Sowell, a private actor, from murdering Tonia.”

“There were no allegations to support a special relationship between Warrensville Heights or Cleveland and Tonia,” Judge Barrett wrote. “And (the cities) did not create a special danger which placed Tonia specifically at risk, as opposed to the public at large.”

While Carmichael argued that the city has a general duty to protect the public from private acts of violence, the court of appeals found that she never actually stated a due-process claim.

“Instead, plaintiff claims that the basis of her Section 1983 claim is that Tonia ‘was selectively denied the protective services of two defendant cities on the basis that she was African-American and thus, defendants violated the Equal Protection Clause,’” wrote Judge Barrett. “However, this type of unsupported, conclusory statement is not entitled to the assumption of truth.”

Carmichael contended that the cities had policies and practices in place of not making prompt investigations of missing persons who are African-American.

The court of appeals ruled that her statement that such a policy exists is not enough to further a claim.

The pleading standard, Judge Barrett wrote, demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Without any detailed factual allegations, Carmichael could not maintain her equal-protection claim, leading the appellate panel to affirm the district court’s ruling.

Carmichael’s claims against the assistant prosecutor, Coyne, were also dismissed.

She claimed that Coyne’s decision not to prosecute Sowell was negligent but the court of appeals sided with the district court in ruling that Coyne was entitled to absolute immunity.

Judges Danny Boggs and Karen Moore joined Judge Barrett to uphold the judgment of the district court and the dismissal of Carmichael’s claims.

The case is cited Carmichael v. City of Cleveland, et al., Case No. 12-3657.

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