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City's Response to Plaintiff's Opposition
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The City Responds to Rose Wilcher's Opposition to City's Request to Dismiss Case

MR/DAM/keh 01-09-06

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

ROSE WILCHER                               ) CASE NO. 1:05 CV 866

Plaintiff                                             )

v.                                                     ) JUDGE DOWD

CITY OF AKRON, et al.                     ) REPLY TO PLAINTIFF’S RESPONSE

                                                         TO MOTION OF DEFENDANT CITY

Defendants                                        ) OF AKRON TO DISMISS PLAINTIFF’S

                                                          COMPLAINT CIVIL RULE 12(b)6; OR

                                                        ) IN THE ALTERNATIVE, FOR

                                                          JUDGMENT ON THE PLEADINGS

                                                        ) CIVIL RULE 12(c)

Now comes the Defendant, City of Akron, by and through undersigned counsel and respectfully replies to Plaintiff’s Response to the City of Akron’s Motion to Dismiss Plaintiff’s Complaint pursuant to Civil Rule 12(b)(6); or, in the alternative, for judgment on the pleadings pursuant to Civil Rule 12(c).

A memorandum in support is attached hereto.

Respectfully submitted,

Max Rothal – No. 0009431

Director of Law

S/DMuntean_____________________

David A Muntean – No. 0038580

Munteda@ci.akron.oh.us

Stephen A. Fallis – No. 0021568

Fallist@ci.akron.oh.us

Assistant Directors of Law

161 S. High Street, Suite 202

Akron, Ohio 44308

(330) 375-2030 FAX: (330) 375-2041

Case 5:05-cv-00866-DDD Document 55 Filed 01/09/2006 Page 1 of 4

REPLY MEMORANDUM

In Plaintiff’s opposition memorandum, Plaintiff essentially argues that state action must exist since the City of Akron is a state actor.

In order to support a cause of action pursuant to the 42 U.S.C. Section 1983, state action is required, not necessarily a state actor. All acts of a state actor are not state action as required by 42 U.S.C. Section 1983.  In its memorandum opinion at page 6 dismissing Time Warner from this case, this Court stated:

     5. However, as stated in the Sixth Circuit: "More than mere approval or acquiescence in the initiatives of the private party is necessary to hold the state responsible for those initiatives." Wolotsky, 960 F.2d at 1335 (citations omitted).

Interestingly, the foregoing quote from Wolotsky is from the United States Supreme Court case of Blum v. Yaretsky, 457 U.S. 991, 73 L.Ed 2d 534 (1982).1

In Blum, the Defendant was a state actor - the State of New York. The Blum court found the acts of the State of New York were not state action sufficient to support a 42 U.S.C. Section 1983 action.

As this Court already found the City of Akron’s mere approval of Time Warner’s initiatives did not constitute state action when it granted Time Warner’s Motion to Dismiss, so too the very same act of approval by the City does not constitute state action in its own Motion to Dismiss.

Finally, in regard to Plaintiff’s taxpayer’s claim, Plaintiff admits that Plaintiff did not comply with the statutory prerequisites. Plaintiff now says that Plaintiff’s claim should survive as a common law taxpayer action. First, Plaintiff did not plead a common law taxpayer action.

Second, Ohio courts which have converted statutory taxpayer actions into common law taxpayer actions have done so within the courts’ discretion. Certainly, it is not incumbent on a court to 1 Cited with approval in Plaintiff’s Memorandum in Opposition.

2

Case 5:05-cv-00866-DDD Document 55 Filed 01/09/2006 Page 2 of 4

convert every flawed statutory taxpayer action into a common law taxpayer action. Otherwise, the statutory taxpayer action would be rendered meaningless.

CONCLUSION

For the foregoing reasons, the City of Akron respectfully requests that Plaintiff’s Complaint be dismissed, or, in the alternative, have judgment rendered in its favor on the pleadings.

Respectfully submitted,

Max Rothal – No. 0009431

Director of Law

S/DMuntean_____________________

David A Muntean – No. 0038580

Munteda@ci.akron.oh.us

Stephen A. Fallis – No. 0021568

Fallist@ci.akron.oh.us

Assistant Directors of Law

161 S. High Street, Suite 202

Akron, Ohio 44308

(330) 375-2030 FAX: (330) 375-2041

Case 5:05-cv-00866-DDD Document 55 Filed 01/09/2006 Page 3 of 4

4

PROOF OF SERVICE

This is to certify that a true and accurate copy of the foregoing Reply was filed

electronically this 9th day of January, 2006. Notice of this filing will be sent to all parties by

operation of the Court’s electronic filing system. Parties may access this filing through the

Court’s system.

S/DMuntean .

David A. Muntean

Case 5:05-cv-00866-DDD Document 55 Filed 01/09/2006 Page 4 of 4

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