Sollenberger v. Sollenberger (173 F. Supp. 3d 608, 2016)

DECISION AND ENTRY GRANTING DEFENDANT PLUMMER AND SHERIFF DEFENDANTS’ MOTION TO DISMISS (DOC. 13), GRANTING DEFENDANT SOL-LENBERGER’S MOTION TO DISMISS (DOC. 2-1, at PagelD# 126-27), GRANTING DEFENDANT ES-TRIDGE’S MOTIONS TO DISMISS (DOC. 17), AND TERMINATING CASE.

Thomas M. Rose, Judge, United States District Court

Plaintiff Michael J. Sollenberger (“Plaintiff Sollenberger”) filed suit against Jennifer A. Sollenberger (“Defendant Sollenber-ger”) and Dannelle Estridge (“Defendant Estridge”), as well as Sheriff Phil Plum-mer (“Defendant Plummer”), Sergeant David Parin (“Defendant Parin”), Detective Bryan Cavender (“Defendant Caven-der”), and Detective Tony Hutson (“Defendant Hutson”), alleging deprivation of his constitutional rights under 42 U.S.C. § 1983 and various Ohio common law tort claims. The Court has original jurisdiction over Plaintiff Sollenberger’s federal claims pursuant to 28 U.S.C. § 1343(a)(3), and supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. § 1367(a).

Pending before the Court is Defendant Plummer and Sheriff Defendants’ Motion to Dismiss (Doc. 13), brought pursuant to Fed. R. Civ. P. 12(b)(6), Defendant Es-tridge’s Motion to Dismiss (Doc. 17), brought pursuant to Fed. R. Civ. P. 8, 12(c), and Defendant Sollenberger’s Motion to Dismiss (Doc. 2-1, at PagelD# 126-27.). These Motions are now fully briefed and ripe for decision. A relevant factual background .will first be set forth, followed by the applicable legal standard and analysis of the motions to dismiss.

I. FACTUAL AND PROCEDURAL , HISTORY

In the context of a motion to dismiss, the Court must .accept as true all of the factual allegations, contained in the complaint. In the context of a motion for judgment on the pleadings, the Court may also consider court decisions and other public records. Plaintiffs Complaint includes the following factual allegations:

Plaintiff Sollenberger is a resident of Montgomery County, Ohio, and was formerly employed by the Montgomery County Sheriffs Office in Dayton, Ohio. (Doc. 2-1, at PagelD# 88-89.) Plaintiff Sollenber-ger and Defendant Sollenberger are currently married, but in the process of finalizing divorce proceedings in the Court of Common Pleas of Montgomery County, Ohio. (Id., at PagelD# 89.) Plaintiff Sollen-berger and Defendant Sollenberger were physically separated during the divorce proceedings. (Id.)

On or about April or May 2014, Defendant Sollenberger noticed their son' — -who was staying at her residence for the week — looking through her bedroom dresser drawers. (Doc. 11-2, at 18.) Sollen-bergers’ son was looking for one of Defendant Sollenberger’s old cell phones, which was in Defendant Sollenberger’s possession, so that the son could use it. (Id.; Doc. 2-1, at PagelD# 89.) At this point, Defendant Sollenberger had been in possession of at least two old cell phones “for an extended and continuous period of time[,]” as they had been left at her residence since Plaintiff Sollenberger moved out. (Doc. 2-1, at PagelD# 90; Doc. 8, at 9, 31.) The cell phone in question was one of Plaintiff Sollenberger’s old cell phones, it was located in Defendant Sollenberger’s bedroom dresser drawers, and it was not password protected. (Doc. 11-2, at 18; Doc. 8, at 9.)

Following a discussion with friends, Defendant Sollenberger suspected Plaintiff Sollenberger’s old cell phone might contain certain information regarding Plaintiff Sol-lenberger. (Doc.' -2-1, at PagelD# 89.) In May 2014, Defendant Sollenberger gave possession of Plaintiff -Sollenberger’s old cell phone' to Defendant Estridge, who accessed and extracted digital information from the cell phone. (Id.) The extracted information, included, but was not limited to, text messages between Plaintiff Sollen-berger and his co-workers, pictures, and other deleted, digital information. (Id.) Defendant Estridge used a computer program to access and extract this information; storing the information on the hard drive of her personal computer. (Id.) Defendants Sollenberger and Estridge reviewed the information. (Id.)

In August 2014, Defendant Sollenberger sent some, but not all, of the information stored by Defendant Estridge to the National Association for the Advancement of Colored People (“NAACP”). (Id.) In December 2014, a representative from the NAACP provided the Montgomery County Sheriff’s Office with 105-eopied pages of text messages. (Id.) Upon review of these text messages, the Sheriffs Office initiated an administrative investigation into Plaintiff Sollenberger and other Sheriffs Office employees. (Id.) The pages contained statements by the Plaintiff that were derogatory and expressed a desire to harm minority members of the community. (Doc. 13-2, at PagelD# 358-406; Doc. 13-3, at PagelD# 407-63.) These statements include, but are not limited to, the following:

1. “I’ll stab a coon.” (Doe. 13-2, at Pa-gelD# 457.)

2. “BTW the niggers are trying to take over Boston’s.” (Id.)

3. “I hate niggers. That is all.” (Doc. 13-3, at PagelD# 458.)

4. “Just because a nigger scammed the election and is pres. It does not give the G-damn right to shop at DLM.” (Id., at PagelD# 453.)

5. “Thank you for stepping up and wanting to kill Muslim sand niggers when no one else would.” (Doc. 13-2, at PagelD# 367.)

6. “He’s a half[-]breed. It’s not his fault is [sic] mom was a mud shark communist whore.” (Id., at PagelD# 375.)

7. “[H]ope he was screaming as he died and his negro friends were freaking out.” (Id., at PagelD# 387.)

8. “Watching history channel on MLK Showing old films of restaurants in the south. It would have been fun to beat up coloreds cause [sic] they came into your restaurant.” (Id., at PagelD# 391.)

9. “I dislike coloreds.” (Id., at Pa-gelD# 396.) .

10. “Did you see the niggers that made the news in Texas because they refused to pay the gratuity on a party of ten [?]”(Doc. 13-3, at Pa-gelD# 412.)

11. “U [sic] ever see that nigger reporting for Fox 45? The. only thing he’s missing is a blunt and a Jew rag.” (Id., at PagelD# 432.)

On December 16, 2014, Defendant Sol-lenberger met with an employee of the Sheriffs Office to discuss how she came into possession of the information extracted from Plaintiff Sollenberger’s old cell phone. (Doc. 2-1, at PagelD# 89.) At this point, Defendant' Sollenberger provided one of Plaintiff- Sollenberger’s cell phones to the employee, and Defendant Hutson used the Sheriffs Office software for forensic imaging, and then, returned the cell phone to Defendant Sollenberger. (Id., at PagelD# 90.) The information provided to the Sheriffs Office by the NAACP was not contained on this cell phone. (Id.)

On January 13, 2015, Defendant Es-tridge met with a Sheriffs Office employee to copy files from her personal computer onto a Sheriffs Office hard drive, but this task was unsuccessful (Id.) Three days later, Defendant Estridge returned to the Sheriffs Office and transferred files from her personal computer to a flash drive as well as to a cell phone provided by the Sheriffs Office. (Id.) On January 20, 2015, Defendants Sollenberger and Estridge returned for a final time, providing Plaintiff Sollenberger’s old cell phone that originally containéd the digital information in question. (Id.) Defendant Hutson imaged the phone using the Sheriffs' Office software, and employees conducted an' examination of the information obtained therein. (Id.) The extracted digital information was determined to be “similar to.or the same as the digital information [Defendants Sol-lenberger and Estridge] were able to extract,” and the Sheriffs 'Office used the obtained information for the purposes of their investigation, (Id.) ,.

The .Sheriffs 'Office determined that Plaintiff Sollenberger violated the Sheriffs Office Professional Conduct Rules. (Id.) On December , 1, 2014, Plaintiff Sollenberger was placed on. administrative leave, and ultimately, terminated on February 6, 2015. (Id.)

Plaintiff Sollenberger filed suit on May 15, 2015, in the Court of Common Pleas of Montgomery County, Ohio, in which he alleged state law claims and violations of his federal constitutional rights and sought recovery under 42 U.S.C. § 1983. (Doc. 2-1, at PagelD# 87-95.) Pursuant to 28 U.S.C. § 1441, ^Defendants removed the case to this Court. (Doc. 2, at Pa-gelD# 76-78; Doc. 2-1, at PagelD# 79-156; Doc. 2-2, at PagelD# 157.)

Plaintiff Sollenberger’s Complaint presents six claims. (Doc. 2-1, at PagelD# 87-95.) • The first three and sixth causes of action allege claims under Ohio law, namely: invasion of privacy against all Defendants (First Claim); asserted civil claim for uncharged criminal act pursuant to O.R.C. § 2307.60 against all Defendants (Second Claim); tortious interference with an employment relationship against Defendants Sollenberger and Estridge (Third Claim); and civil conspiracy against all Defendants (Sixth Claim). (Id., at PagelD# 90-92, 94) Plaintiff .Sollenberger’s remaining claims arise under 42 U.S.C. § 1983: a claim for unlawful search and seizure against Sheriff Defendants (Fourth Claim);' and a claim against Defendant Plummer, in his official capacity, for failure to train Sheriff Defendants (Fifth Claim). (Id,, at PagelD# 92-94.)

Defendant Plummer and Sheriff Defendants filed a Motion to Dismiss on July 24, 2015, arguing that Plaintiff Sollenber-ger failed to establish his state and federal claims asserted against them, as well as that they are entitled to the protections of qualified immunity on Plaintiff Sollenber-ger’s federal law claims and statutory immunity on his state law, claims. (Doc. 13, at PagelD# 319-53.) Plaintiff Sollenberger filed a Memorandum in Opposition to Defendants’ Motion to Dismiss (Doc, 19) on August 14, 2015, and Defendant Plummer and Sheriff Defendants filed a Reply Memorandum in Support of their Motion to Dismiss (Doc. 21) on August 31, 2015.

Defendant Estridge filed a Motion to Dismiss on July 31, 2015, arguing that Plaintiff Sollenberger failed to state claims that are plausible on their face. (Doc. 17.) Plaintiff Sollenberger filed a.Memorandum in Opposition to Defendant’s Motion to Dismiss (Doc. 20) on August 21, 2015, and Defendant Estridge filed a Reply Memorandum in Support of her Motion to Dismiss (Doc., 22) on -September 04, 2015.

Defendant Sollenberger filed a Motion to Dismiss on June 05,-2015 in the Court of Common Pleas of Montgomery County, Ohio. (Doc. 2-1, at PagelD# 126-27.)

II. STANDARD OF REVIEW — MOTION TO DISMISS

“The standard of review for a Rule 12(c) motion is the same as for- a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.” Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir.2010) (citing Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 511-12 (6th Cir.2001)).

The purpose of a Rule 12(b)(6) motion to dismiss is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in -the complaint is true. Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993) (citing Nishiyama v. Dickson County, Tennessee, 814 F.2d 277, 279 (6th Cir.1987)). Put Another way, “the purpose of a motion under Federal Rule 12(b)(6) is to test the formal sufficiency of the statement of the claim for relief; the motion is not a procedure for resolving a contest between the parties about the facts or the substantive merits of the plaintiffs case.” 5B Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1356 (3d ed. 2004). Further, for purposes of a motion to dismiss, the- complaint must be construed in the light most favorable to the plaintiff 'and its allegations taken as true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

To survive a 12(b)(6) motion to dismiss, a plaintiff must provide more than labels and conclusions, and a formulaic recitation of the elements of a cause of action is not enough. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). “[Ojnce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atl. Corp., 550 U.S. at 563, 127 S.Ct. 1955. However, the factual allegations must be enough to raise a right to relief above the speculative level. Id. at 555, 127 S.Ct. 1955 (citing 5B C. Wright & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). The factual allegations in the, complaint, even if doubtful in fact, must do something more than merely create a suspicion of a legally cognizable right. Id. at §. 1216.

However, the Supreme Court has held that:

[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable'to legal conclusions'. Threadbare recitals of the elements of a cause of action, supported by mere conelusory statements, do not suffice. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (Although for the purposes of a ftiotion to dismiss we must take all of the factual allegations in the complaint as true, we “are not bound to accept as true a' legal conclusion couched as a factual allegation”). Rule 8 marjcs a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of1 discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint th'at states a plausible claim for relief survives a motion to dismiss. Id. at 556, 127 S.Ct. 1955. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. [Iqbal v. Hasty,] 490 F.3d [143,] 157-58 [(2d Cir.2007)]. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not “show[n]” — “that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The Sixth Circuit has also noted that to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a.. .complaint must contain either direct or inferential allegations respecting-all the material elements to sustain a recovery under some viable legal theory.” Columbia Nat. Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th Cir.1995) (citation omitted), cert. denied, 516 U.S. 1158, 116 S.Ct. 1041, 134 L.Ed.2d 189 (1996). The Court “need not accept as true legal conclusions or unwarranted factual inferences.” Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987). Put another way, bare assertions of legal conclusions are not sufficient. Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d. 716, 726 (6th Cir.1996). It is only well-pleaded facts, which are construed liberally, in favor of the party opposing the motion to dismiss. Id.

In evaluating whether the plaintiff has stated a cognizable claim, the court generally may not consider matters outside of the pleadings. See Hammond v. Baldwin, 866 F.2d 172, 175 (6th Cir.1989). To this effect, Rule 12(d) provides that if “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. All parties must be given a reasonable opportunity to present all material that is pertinent to the motion.”

The Sixth Circuit has clarified the scope of what the court may consider without reaching “matters outside of the pleadings.” Generally speaking, while a plaintiff is not required to attach to the complaint documents upon which his action is based, Fed. R. Civ. P. 10(c) considers “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” See Weiner v. Klais & Co., 108 F.3d 86, 88 (6th Cir.1997); see also Fed R. Civ. P. 10(c). The Court may consider the complaint, in addition to: (1) documents referenced in the complaint or central to plaintiff’s claim; (2) matters where the Court may take judicial notice; (3) documents that are public record; and (4) decisions of a government agency. Dye v. Wells Fargo Home Mortg., No. 13-CV-14854, 2014 WL 1908285, at *3, 2014 U.S. Dist. LEXIS 65419, at *10 (E.D.Mich. May 13, 2014) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)); see also Weiner, 108 F.3d at 89 (finding documents attached to a motion to dismiss by a defendant as part of the pleadings if referred to in the complaint and central to its claims).

This acts as a protection for the defendant, without which “a plaintiff with a legally deficient claim could survive a motion to dismiss. simply by failing to attach a dispositive document upon which it relied.” Weiner, 108 F.3d at 89 (citing Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993)). Under these circumstances, the Court may consider the extraneous document without requiring the conversion of the motion to one for- summary judgment. See, e.g., Weiner, 108 F.3d at 89 (considering additional documents along with the complaint).

Notwithstanding, the ability of a court to consider supplementary documents is not without limitations. The Sixth Circuit has explained that “[w]hile documents integral to the complaint may be relied upon, even if they are not attached or incorporated by reference, it must also be clear that there exist no material disputed issues of fact regarding the relevance of the document.” Mediacom Se. LLC v. BellSouth Telecomms., Inc., 672 F.3d 396, 400 (6th Cir.2012) (citations, internal quotation marks, and alterations omitted). Put otherwise, if the authenticity, validity, or enforceability of a document is not in dispute, the court may consider, it on a motion to dismiss; however, a genuine dispute as to the legal sufficiency of said document requires the court to consider the issue under a motion for summary judgment standard. Id.; see also Ouwinga v. Benistar 419 Plan Servs., 694 F.3d 783, 796-97 (6th Cir.2012). Additionally, “[i]n ruling on a Rule 12(c) motion, the court considers all available pleadings, including the complaint and the answer.” Dudek v. Thomas & Thomas Attys. & Counselors at Law, LLC, 702 F.Supp.2d 826, 832 (N.D.Ohio 2010) (citing Fed. R. Civ. P. 12(c)).

III. ANALYSIS

A. Plaintiff Sollenberger’s federal claims under 42 U.S.C. § 1983

Defendant Plummer and Sheriff Defendants argue that Plaintiff Sollenberger’s federal law claims fail as a matter of law and because they are entitled to the protections of the doctrine of' qualified immunity. (Doc. 13, at PagelD# 336-42, 346-52.) Although dismissals on the basis of qualified immunity are generally made pursuant to- summary judgment motions, Grose v. Caruso, 284 Fed.Appx. 279, 283 (6th Cir.2008), “this circuit permits a.. .court to dismiss under Fed. R. Civ. P. 12(b)(6) based on qualified immunity.” Jackson v. Schultz, 429 F.3d 586, 589 (6th Cir.2005) (citing Dominque v. Telb, 831 F.2d 673, 677 (6th Cir.1987)). Therefore, there are two questions presented. First, Defendant Plummer and Sheriff Defendants still bear the burden of establishing that Plaintiff Sollenberger has failed to allege facts that state a viable claim under color of state law. 42 U.S.C. § 1983. Second, Defendant Plummer and Sheriff Defendants’ qualified immunity challenge imposes an additional burden on Plaintiff Sollenberger in stating a claim under Section 1983. See Shoup v. Doyle, 974 F.Supp.2d 1058, 1072 (S.D.Ohio 2013).

Under the doctrine of qualified immunity, government officials performing discretionary functions are afforded immunity under 42 U.S.C. § 1983, as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); Christophel v. Kukulinsky, 61 F.3d 479, 484 (6th Cir.1995); Adams v. Metiva, 31 F.3d 375, 386 (6th Cir.1994); Flatford v. City of Monroe, 17 F.3d 162, 166 (6th Cir.1994). Even though the reasonableness determination of an official’s action is based on objective factors, “the Supreme Court requires a, fact-specific inquiry to determine whether officials would reasonably, even if mistakenly, believe their actions are lawful.” Flatford, 17 F.3d at 166 (citing Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

Qualified immunity analysis involves three inquiries: (i) “whether, based upon the applicable law, the facts viewed in the light most favorable to the plaintiffs show that a constitutional violation has occurred;” (ii) “whether the violation involved a clearly established constitutional right' of which a reasonable person would have known;” and (iii) “whether the plaintiff has offered sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Radvansky v. City of Olmsted Falls, 395 F.3d 291, 302 (6th Cir.2005) (quoting Feathers v. Aey, 319 F.3d 843, 848 (6th Cir.2003)). Qualified immunity must be granted if Plaintiff Sollenberger cannot establish all three elements. See Williams ex rel. Allen v. Cambridge Bd. of Edue., 370 F.3d 630, 636 (6th Cir.2004). Therefore, in order for Plaintiff Sollenberger’s federal law claims to survive Defendant Plummer and Sheriff Defendants’ qualified immunity challenge, Plaintiff Sollenberger must demonstrate that the constitutional rights were clearly established at the time of alleged violation. See Harlow, 457 U.S. at 818, 102 S.Ct. 2727.

“Since qualified immunity is a defense, the burden of pleading it rests with the defendant.” Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980), (citing Fed. R. Civ. P. 8(c); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1271 (1969)). Once pleaded, the burden shifts to the plaintiff to show that the defendants are not entitled to qualified immunity. Silberstein v. City of Dayton, 440 F.3d 306, 311 (6th Cir.2006); Wegener v. Covington, 933 F.2d 390, 392 (6th Cir.1991).

1. Unlawful Search against Sheriff Defendants (Fourth Claim)

Plaintiff Sollenberger claims that because Sheriff Defendants conducted a forensic examination of his old cell phone “[without any warrant, court order, subpoena, or [Plaintiff Sollenberger’s] consent,” their actions constituted an unreasonable search, in violation of the Fourth and Fourteenth Amendments, as well as Article I, Section 14 of the Ohio Constitution,(Doc. 2-1, at PagelD# 90, 93.) Sheriff Defendants argue that their search was reasonable, as well as provide two alternative arguments:- that the search was permissible because it was conducted with the consent- of Plaintiff Sollenberger’s wife, and that the information at issue was provided to the Sheriff Defendants by third parties. (Doc. 13, at PagelD# 335-42.)

Claims for an unlawful search arise under the Fourth Amendment, which; provides that “the right of the people .to be secure in their persons, houses, papers, and effects; against unreasonable searches and seizures, shall not be violated_” United States v. Mendenhall, 446 U.S. 544, 550, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). “A search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (internal quotations omitted). “ ‘The Amendment guarantees .the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,’ without regard to whether the government actor is investigating crime or performing another function.” City of Ontario v. Quon, 560 U.S. 746, 755-56, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (quoting Skinner v. Railway Labor Execs.’ Ass’n., 489 U.S. 602, 613-14, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). However, the Supreme Court in Quon declined to establish, whether, an employee subject to an investigation for misconduct has a reasonable expectation of privacy. 560 U.S. at 759-60, 130 S.Ct. 2619.

Assuming arguendo — Plaintiff Sollen-berger has sufficiently plead facts to support a reasonable expectation of privacy in his old cell phone, application of the Fourth Amendment does not stop when the Government acts in its capacity as an employer. Treasury Emps. v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). The Supreme Court in O’Connor analyzed this .issue, as it relates to a search of a physician’s office at a state hospital, unanimously agreeing, “[individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer,” O’Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (plurality opinion); see also id., at 731, 107 S.Ct., 1492 (Scalia, J., concurring in judgment); id., at 737, 107 S.Ct. 1492 (Blackmun, J., dissenting).

This application is only the beginning of the inquiry because what is considered reasonable depends on the context of the search. New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). “Because the reasonableness of an expectation of privacy, as well as the appropriate standard for a search, is understood to differ according to context, it is essential first to delineate the boundaries of the workplace.” O’Connor, 480 U.S. at 715, 107 S.Ct. 1492 (stating “[t]he workplace includes those areas and items that are related to work and are generally within the employer’s control.”) (plurality opinion). The reasonableness determination requires “[balancing] the nature and- quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); Camara v. Municipal Court, 387 U.S. 523, 536-37, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). For searches conducted by a public employer, the Court must “balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace.” O’Connor, 480 U.S. at 719-20, 107 S.Ct. 1492 (plurality opinion).

It is well settled that a warrantless search or seizure is presumptively unreasonable under the' Fourth Amendment. U.S. Const. amend. IV; see also United States v. Jones, 562 F.3d 768, 772 (6th Cir.2009). However, because the touchstone of the Fourth Amendment is “reasonableness,” there are certain exceptions to the warrant requirement. Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (citations omitted). “Lists.of recognized exceptions are inclusive rather than exclusive.” Johnson v. City of Memphis, 617 F.3d 864, 868 (6th Cir.2010). “[T]he Supreme Court held in [O’Connor], that a workplace search by a government employer to investigate work-related misconduct is not subject to the probable cause and warrant requirements of the Fourth Amendment. Rather, such a search is legal so long as it is reasonable under all of the circumstances.” Jackson v. City of Columbus, 194 F.3d 737, 754 (6th Cir.1999) (citation omitted), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). In order for a workplace search to be reasonable, it must be “justified1 in its inception” and “reasonably related in scope to the circumstances” that prompted the search. See O’Connor, 480 U.S. at 726, 107 S.Ct. 1492 (plurality opinion).

In Jackson, the Sixth Circuit “upheld the dismissal of a police chiefs claim that his office was unreasonably searched after he was reassigned from his duties upon the city’s initiation of an investigation against him for improper conduct.” James v. Hampton, 592 Fed.Appx. 449, 457 (6th Cir.2015) (discussing Jackson, 194 F.3d at 744); see also Quon, 560 U.S. at 762, 130 S.Ct. 2619 (extending reasonableness standard to include text messages sent on an electronic device). In Quon, “[t]he search was justified at its inception because there were ‘reasonable grounds for suspecting that the search [was] necessary for a non-investigatory work-related purpose.’” 560 U.S. at 761, 130 S.Ct. 2619 (alterations in original) (citing O’Connor, 480 U.S. at 726, 107 S.Ct. 1492).

Here, in December 2014, the Montgomery County Sheriffs Office received and reviewed 105-eopied pages of text messages from the NAACP. (Doc. 2-1, at PagelD# 89.) The Sheriffs Office review of the information provided by the NAACP was reasonable because law enforcement is permitted to review evidence presented to them by private, third parties. See Clements-Jeffrey v. City of Springfield, 810 F.Supp.2d 857, 868 (S.D.Ohio 2011) (“[W]hen a private party presents evidence to the police, it is ‘not incumbent on the police to stop her or avert their eyes.’ ”) (citing Coolidge v. New Hampshire, 403 U.S. 443, 489, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)).

Following this review, the Sheriffs Office initiated an investigation against Plaintiff Sollenberger and the other employees involved. (Doc. 2-1, at PagelD# 89.) The 105-eopied pages provided “reasonable grounds” for suspecting that a search of Plaintiff Sollenberger’s old cell phone would yield evidence that Plaintiff Sollen-berger was “guilty of work-related misconduct.” See O’Connor, 480 U.S. at 726, 107 S.Ct. 1492 (plurality opinion). The pages contained statements by the Plaintiff that were derogatory and expressed a desire to harm minority members of the community. (Doc. 13-2, at PagelD# 358-406; Doc. 13-3, at PagelD# 407-63.)

As a part of this investigation, digital information was accessed and extracted from Plaintiff Sollenberger’s old cell phones- to authenticate the pages received by the NAACP. (Doc. 2-1, at PagelD# 90.) Like the plaintiff in Hampton, Plaintiff Sollenberger has not alleged facts that suggest it would be unreasonable, given the context of the Sheriffs Office investigation against him, to suspect the cell phone to contain evidence of his work-related misconduct. See, e.g., Manasco v. Bd. of Police Comm’rs, No. 4:11-CV-00557-CDP, 2011 U.S. Dist. LEXIS 157310, at *9-10 (E.D.Mo. Apr. 1, 2011) (finding that the production of plaintiffs’ personal cell phone records of text messages was not an unreasonable intrusion).

Additionally, Sheriff Defendants argue that the search was permissible because Plaintiff Sollenberger’s wife, Defendant Sollenberger provided consent. (Doc. 13, at PagelD# 341-42.) Whether authority exists to consent to a search is a “recurring factual question to which law enforcement officials must be expected to apply them judgment; and all the Fourth Amendment requires is that they answer it reasonably-” Ill. v. Rodriguez, 497 U.S. 177, 186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990).

The Constitution is no more violated when officers enter without a warrant because they reasonably (though erroneously) believe that the person who has consented to their entry is a resident of the premises, than it is violated when they enter without a warrant because they reasonably (though erroneously) believe they are in pursuit of a violent felon who is about to escape.

Id. In support of their argument, Sheriff Defendants cite to Cowans v. Bagley. (Doc. 13, at PagelD# 341-42.) In Coivans, the Sixth Circuit found a wife’s consent to search the home she shared with her husband valid, stating such determinations “turn[] on what the officers knew (or should have known under the circumstances).” 639 F.3d 241, 250 (6th Cir.2011). There, the officers were unaware that the husband and wife were separated and did not share bedrooms. Id.

Here, on December 16, 2014, Sheriff Defendants conducted an interview with Defendant Sollenberger where she explained that “they were currently awaiting final results of their divorce trial”, and that “[Plaintiff Sollenberger] moved out of the house.” (Doc. 11-2, at PagelD# 235.) In January, Sheriff Defendants were able to successfully extract digital information from Plaintiff Sollenberger’s old cell phones. (Doc. 2-1, at PagelD# 90.) There is a reasonable inference that because Sheriff Defendants were aware of the circumstances surrounding Plaintiff Sollen-berger and Defendant Sollenberger’s marriage at the time of the search, the Sheriff Defendants’ could not have reasonably relied on Defendant Sollenberger’s authority to give consent to the search. However, this is distinct from the issue of abandonment, which is not “in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” State v. Freeman, 64 Ohio St.2d 291, 414 N.E.2d 1044, 1048 (1980) (citing United States v. Edwards, 441 F.2d 749, 753 (5th Cir.1971)).

•Although Plaintiff Sollenberger alleges that Defendant Sollenberger possessed his old phone without his knowledge or consent, the pleadings fail to address whether or not the old phone was essentially abandoned, diminishing any reasonable expectation of privacy. Rather, the facts as alleged support the assertion that Sheriff Defendants’ could have reasonably concluded Defendant Sollenberger’s consent to the search was valid because the- old phone was abandoned, as it was left behind at Defendant Sollenberger’s residence when he moved out, the phone remained there for an extended period, and the phone did not contain any sort of .password protection. (Doc. 11-2, at PagelD# 235; Doc. 8, at 9.) Therefore, Plaintiff Sollen-berger has not alleged facts sufficient to establish Defendant Sollenberger’s inability to give consent to the search. .

Even assuming Defendant Sollenberger was unable to give valid consent and Sheriff Defendants were aware of this fact-construing all facts in Plaintiff Sollénber-ger’s favor — the Court cannot conclude Plaintiff Sollenberger has plead sufficient facts to’ support an unreasonable search at its inception. Therefore, the search is removed from the bounds of Fourth Amendment protection. Plaintiff Sollenberger’s unlawful search claim fails the first prong of the qualified immunity analysis because he fails to state a constitutional claim.

Next, for a search to be reasonable in scope, it must reasonably relate to the objectives of .the search and not excessively intrude in light of the nature of the misconduct. O’Connor, 480 U.S. at 726, 107 S.Ct. 1492 (plurality opinion). Sheriff Defendants argue that the search was reasonable in. scope because they extracted the same digital information extracted by Defendants Sollenberger and Estridge. (Doc. 13, at PagelD# 340.) .Furthermore, Sheriff Defendants argue that extracting this- information was necessary in their investigation to authenticate the 105-copied pages sent by the NAACP, and ultimately, to determine if a violation of their professional conduct rules had occurred. (Id., at Pa-gelD# 340.) In response, Plaintiff Sollen-berger argues that the search in Quon— relied upon by Sheriff Defendants — is distinguishable because a personal cell phone was not searched, but rather, a work-issued cell phone where the employee had notice of possible searches. (Doc. 19, at 8.)

The Court in Quon did state “OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been,” 560 U.S.,at 762-63, 130 S.Ct. 2619. However, the Court further clarified, the fact “[t]hat the search did reveal intimate details of Quon’s life does not make it unreasonable^]” and thus, was permissible in scope. Id. at 763, 130 S.Ct. 2619.. Furthermore, although the cell phone has been used as a personal cell phone in the past, Defendant Sollenberger disclosed during her December interview that it was also used .for work purposes and claimed as a work expenditure for tax purposes. (Doc. 11-2, at 19.) The search was reasonable in scope because “the extracted digital information [was] similar to or the same as. the digital information [Defendants Sollenberger and Estridge] were able to extract,” the cell phone was used for work purposes, and the information was extracted in furtherance of the Sheriff Office’s investigation. (Doc. 2-1, at Pa-gelD# 90; Doc.-11-2, at 19.) Moreover, the search of Plaintiff Sollenberger’s old cell phone is not unreasonable in scope simply because the search may have revealed intimate details of Plaintiff Sollenberger’s life.

Nevertheless, had Plaintiff Sollen-berger alleged facts establishing a violation of a constitutional right, he must also allege plausible facts that the violation was of a “constitutional right that was clearly established law at the time, such that a reasonable officer would have known that his conduct violated that right.” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir.2015). “Unless the plaintiffs allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (citing Harlow, 457 U.S. at 818, 102 S.Ct. 2727 (stating, “bare allegations... should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.”)). “Moreover, the allegations must demonstrate that each defendant officer, through his or her own individual actions, personally violated plaintiffs rights under clearly established law.” Moseley, 790 F.3d at 653 (citing Iqbal, 556 U.S. at 676, 129 S.Ct. 1937; Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir.2014)). “Á right is clearly established if there is binding precedent from the Supreme Court, the Sixth Circuit, or the district court itself, or case law from other circuits which is directly on point.” Blake v. Wright, 179 F.3d 1003, 1007 (6th Cir.1999) (internal quotation marks and citations omitted).

Here, Sheriff Defendants argue that the federal courts have not clearly established the parameters of reasonable searches of electronic communications, and specifically,- employee text messages. (Doc. 13, at PagelD# 347-48.) “The Supreme Court’s more-recent precedent shows a marked lack of clarity in 'what privacy expectations as to content of electronic communications are reasonable.” Rehberg v. Paulk, 611 F.3d 828, 844 (11th Cir.2010) (discussing Quon, 560 U.S. at 748, 130 S.Ct. 2619). The Supreme Court in Quon stated that it “must proceed with care when considering the whole concept of privacy'expectations in communications made on electronic equipment owned by a government employer”, 560 U.S. at 759, 130 S.Ct. 2619, and that it “touches issues of far reaching signifícance[.]” Id, at 750, 130 S.Ct. 2619. The Court cautioned that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” Id. at 759, 130 S.Ct. 2619 (declining to make a broad holding because of far reaching implications).

Plaintiff Sollenberger argues that his constitutional right was clearly established based on the Supreme Court’s decision in Riley v. California. (Doc. 19, at 4-5, 16.) The Court stated that officers must generally secure a warrant before conducting a search of data on cell phones. Riley v. California, — U.S.-, 134 S.Ct. 2473, 2485, 189 L.Ed.2d 430 (2014). However, Riley interprets the warrant exception for searches incident to arrest, .whereas the case here involves the parameters of the warrant exception for investigations of employee misconduct. See United States v. Lichtenberger, 786 F.3d 478, 487 (6th Cir.2015) (stating the-Riley Court’s holding dealt with the search incident to arrest exception). Furthermore, the Court in, Riley specifically stated, “even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.” 134 S.Ct. at 2495.

Assuming arguendo, Plaintiff Sollenber-ger sufficiently pleaded the first element of qualified immunity; he has nevertheless failed to establish actions that were objectively unreasonable and constituted a violation of a clearly established constitutional right. Therefore, Plaintiff • Sollénbefger’s unlawful search claim fails the second and third elements of the' qualified immunity analysis. Thus, the Court DISMISSES Plaintiff Sollenberger’s unlawful search claim, without prejudice.

2. Failure to train against Defendant Plummer (Fifth Claim)

Defendant Plummer is being sued in his official capacity as Sheriff of Montgomery County, Ohio. (Doc. 2-1, at Pa-gelD# 88.) “[A] suit against a governmental officer ‘in his official capacity’ is the same as a suit ‘against [the] entity of which [the] officer is an agent,’ and ‘imposes liability on the entity that [the officer] represents.” Wood v. Plummer, No. 3:11— CV-00032, 2011 WL 2971874, at *6, 2011 U.S. Dist. LEXIS 79712, at *19 (S.D.Ohio June 27, 2011) (alterations in original) (quoting McMillian v. Monroe County, 520 U.S. 781, n. 2, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997)), adopted by 2011 WL 2971082, 2011 U.S. Dist. LEXIS 79704 (S.D.Ohio July 21, 2011) (Rose, J.). Therefore,- Plaintiff Sollenberger’s Fifth Claim is a claim against Montgomery County.

Howevér, “ ‘a local government may not be sued under § 1983 for an injury inflicted solely, by its employees or agents’ on a theory of vicarious liability.” Shoup, 974 F.Supp.2d at 1084 (quoting Monell v. Dept. of Soc. Servs. of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). In order to state a claim against a local government under Section 1983, a plaintiff “must show: 1) a deprivation of his constitutional or federal rights,, 2) that occurred pursuant to a custom, usage, or official policy of the municipality.” Wood, 2011 WL 2971874, at *6, 2011 U.S. Dist. LEXIS 79712, at *19 (citing Monell, 436 U.S. at 690-91, 98 S.Ct. 2018). Section 1983 will only attach to a county when the execution of its “policy or custom, whether made by its lawmakers or. by those whose edicts or acts may be fairly said to represent official policy,” caused the plaintiff’s injury. Monell, 436 U.S. at 694, 98 S.Ct. 2018; (see also City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (stating the government entity must itself cause the constitutional violation . at issue through execution of its policies or customs)). “Thus, a [county] may be held liable in a Section 1983 action for a violation of constitutional rights directly caused by its failure to train municipal employees, including its police officers, resulting from its official policy or custom.” Shoup, 974 F.Supp.2d at 1084 (citing Harris, 489 U.S. at 380, 109 S.Ct. 1197).

A failure to train claim can only be1 based on insufficient police training when the failure equates to a “deliberate indifference to the rights of persons with whom the police come into contact.” Harris, 489 U.S. at 388, 109 S.Ct. 1197. “To succeed on a failure to train or supervise claim, the plaintiff must prove the following: (1) the training or supervision was inadequate for the tasks performed; (2) the inadequacy was the result of the [county’s] deliberate indifference; and (3) the inadequacy was closely related to or actually caused the injury.” Ellis v. Cleveland Mun. Sch. Dist., 455 F.3d 690, 700 (6th Cir.2006). Here, Plaintiff Sollenberger alleges that Defendant Plummer “failed to instruct, supervise, control, or discipline on a continuing basis the [Sheriff Defendants] regarding their duties to refrain from unlawfully gaining access to” Plaintiff Sollenberger’s personal cell phone. (Doc. 2-1, at PagelD# 94.) Construing all facts in Plaintiff Sollenberger’s favor, this generally meets the requirements of the first element because Plaintiff Sollenberger .does allege that the training was insufficient for lawful searches, the basis of the alleged constitutional violation. Therefore, Plaintiff Sollenberger states the first element of a failure to train claim.

The second element is met in two possible situations. Ellis, 455 F.3d at 700. First, by alleging facts Sufficient to demonstrate a pattern of constitutional violations or repeated complaints thereof,' with the county’s response or lack thereof amounting to a policy of deliberate indifference. See Brown v. Shaner, 172 F.3d 927, 931 (6th Cir.1999). Here, Plaintiff Sollenberger states “[t]he Sheriff failed to instruct, supervise, control, or discipline on a continuing basis... ”, (Doc. 2-1, at PagelD# 94.) and “knew, or had he diligently exercised his duties of instruction, supervision, control, and discipline on a continuing basis, would have known that the wrongs committed upon Plaintiff Sollenberger were about to be committed.” (Id.) Plaintiff Sollenberger fails to make any factual allegations to support this assertion beyond a “formulaic recitation” of what is loosely construed to be an element of a deliberate indifference claim. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The recitation does not provide support to the claim he purports to state, and the factual allegations fail to mention any pattern of violations.

The other situation where a plaintiff can sufficiently state a claim for failure to train amounting to deliberate indifference is to allege a “failure to provide adequate training in light of foreseeable consequences that could result from a lack of instruction.” Shaner, 172 F.3d at 931. “The Supreme Court has described this situation as one in which ‘the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the [county] can reasonably be said to have been deliberately indifferent to the need.’ ” Showp, 974 F.Supp.2d at 1085 (quoting Harris, 489 U.S. at 390, 109 S.Ct. 1197). Plaintiff Sollenberger describes Defendant Plummer’s “knowledge of [employee’s] inadequate training and experience for the job” and failure “to properly train and educate police officers- to carry out their duties[.]” (Doc. 2-1, at Pa-gelD# 93-94.) However, Plaintiff Sollen-berger provides no factual allegation that might support these claims beyond simply reciting that Defendant Plummer failed to instruct, supervise, control, and discipline employees. Therefore, Plaintiff Sollenber-ger has failed to sufficiently plead the second element of his failure to train claim.

Although failing to sufficiently plead one element is adequate for dismissal, the Court notes that Plaintiff Sollenberger also fails to allege facts to state the third element of his failure to train claim. Here, he has failed to make any factual allegations explaining how the County failed to train its officers, as well as any other factual allegations that would support his claim, beyond the search of his old cell phone. Therefore, the Court DISMISSES Plaintiff Sollenberger’s failure' to train claim, without prejudice.

B. Plaintiff Sollenberger’s state law claims againstJ Defendant Plum-mer and Sheriff Defendants

1. Statutory Immunity for Ohio state law claims

Defendant Plummer and Sheriff Defendants argue that they enjoy statutory immunity from Ohio tort law claims as to a political subdivision and its employees because Plaintiff Sollenberger sued them in their individual and official capacities, respectfully. (Doc. 13, at PageID#343.) In response, Plaintiff Sollenberger argues that Defendant Plummer is precluded from immunity because the search, and the claims related thereto, arose out of Defendant Plummer’s employment relationship. (Doc. 19, at 11-12.)

R.C. 2744.02(A)(1) provides “a political subdivision is not liable in damages in a civil action for injury, death, or loss to person or property allegedly caused by an act or omission of -the political subdivision or an employee of the political subdivision in connection with a governmental or proprietary function.” There are also exceptions to a political subdivision’s immunity, as well as certain defenses to those exceptions. Sampson v. Cuyahoga Metro. Hous. Auth., 131 Ohio St.3d 418, 966 N.E.2d 247, 250 (2012) (citing Ohio Rev. Code §§ 2744.02(B), 2744.03, 2744.09). “The Political Subdivision Tort Liability Act.. .requires a three-tiered analysis to determine whether immunity is applicable[:]”

The first tier sets out a general rule that political actors are not liable for damages. Ohio Rev. Code § 2744.02(A)(1). In the second tier, the Court must determine whether any of the five exceptions to the general rule of immunity is applicable. Ohio Rev. Code § 2744.02(B). The third tier of the analysis requires consideration of whether a defense to liability applies that restores immunity. Ohio Rev. Code §§ 2744.02(B)(l)(a)-(c), 2744.03.

Allen v. Clark, No. 1:13-CV-00326, 2014 WL 3016075, at *9, 2014 U.S. Dist. LEXIS 90807, at *30 (S.D.Ohio July 3, 2014).

The first determination is whether the employees fall within the definition of a “political subdivision.” Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451, 780 N.E.2d 543, 546 (2002). “[W]hen allegation^ are made against the elected holder of an office of a political subdivision who is sued in an official capacity, the officeholder is also entitled to the grant of immunity contained in R.C. 2744.02.” Lambert v. Clancy, 125 Ohio St.3d 231, 927 N.E.2d 585, 591 (2010). “Claims brought against [a county sheriff] in his official capacity are the equivalent of claims brought against the county as a government entity.” Coley v. Lucas Cnty., 799 F.3d 530, 542 (6th Cir.2015) (citing Chesher v. Neyer, 477 F.3d 784, 796-97 (6th Cir.2007)). “Federal courts have held that sheriffs and sheriffs deputies are considered employees of the county, which is a political subdivision-of the state.” Coley, 799 F.3d at 542-43 (citing Ohio Rev. Code § 2744.01(F); Sanford v. Cnty. of Lucas, No. 3:07-CV-03588, 2009 WL 723227, at *8, 2009 U.S. Dist. LEXIS 20774, at *8 (N.D.Ohio, Mar. 16, 2009) (citing cases)). Thus, Defendant Plummer and Sheriff-Defendants meet the first tier.

The' next step is determining if any of the five exceptions to immunity enumerated in Section 2744 apply. Shoup, 974 F.Supp.2d at 1088 (citing Hubbard, 780 N.E.2d at 546). The burden is on the plaintiff to establish an exception to immunity pursuant to Section 2744.04(B). See Allen, 2014 WL 3016075, at *9, 2014 U.S. Dist. LEXIS 90807, at *30-31 (dismissing claims where plaintiffs failed to identify an exception to a city’s, contended immunity). Defendant Plummer and Sheriff Defendants argue that Plaintiff Sollenberger’s Complaint fails to identify an applicable exception to the Act. (Doc. 13, at Pa-gelD# 344.)

In response,( Plaintiff Sollenberger contends that Section 2744.09(B) is applicable and excepts his claim from immunity'under Section 2744.02. (Doc. 19, at-11-12.) Section 2744.09(B) states

This chapter does not apply to, and shall not be construed to apply to, the following: ... (B) Civil actions by an employee, or the collective -bargaining representative of an employee, against his political subdivision relative to any matter that arises out of the employment relationship between the employee and' the political subdivision_

Plaintiff Sollenberger argues that R.C. 2744.09(B) renders R.C. -Chapter 2744 precluded because the state law claims alleged arose out of Defendant Plummer’s employment relationship. (Doc. 19, at 12.) Plaintiff Sollenberger -concedes that this argument is applicable only to Montgomery County, and not the individual Sheriff Defendants. (Id.) The Ohio Supreme Court in Sampson stated, “[w]hen an employee of a political subdivision brings a civil action against the political subdivision alleging an intentional tort, that civil action may qualify as a ‘matter that arises out of the employment relationship’- within the meaning of R.C. 2744.09(B).” Sampson v. Cuyahoga Metro. Hous, Auth., 131 Ohio St.3d 418, 966 N.E.2d 247, 252 (2012). Furthermore, “an employee’s action against his. . '.political— subdivision employer arises out of the employment relationship between the employee and -the political subdivision within the meaning-of R.C. 2744.09(B) if there is a causal connection or causal relationship between the claims raised by the employee and the employment relationship.” Id.

In Sampson, a political subdivision accused the plaintiff of misconduct when working as a plumber, including responding to service calls and emergencies as well as his use of the employer’s gas cards during transportation. Here, Plaintiff Sol-lenberger argues that his actions arose out of his employment relationship. because “the search was motivated by alleged employee misconduct and protecting the public[,]” stating the position of Sheriff Defendants that Plaintiff Sollenberger was unable to fulfill his duties as a Detective. (Doc., 19, at 12.) Consistent with Sampson, Plaintiff Sollenberger has alleged . facts sufficient to demonstrate, his actions arose out of his employment relationship .because the Sheriffs Office accused, and investigated Plaintiff Sollenber-ger of misconduct in carrying out his duties as an employee. Therefore, R.C. 2744.09(B) would remove the immunity protection afforded under Section 2744.02 to Defendant Plummer.

It is unclear whether R.C. 2744.03(A)(3) reattaches the immunity protection removed by Section 2744.09(B). See Fuller v. Cuyahoga Metro. Horn. Auth., No. 1:06-CV-2093, 2008 WL 339464, at *8, 2008 U.S. Dist. LEXIS 8730, at *53 (N.D.Ohio Feb. 6, 2008) (noting a lack of clarity in the application of R.C. 2744.03(A)(3)). Nonetheless, Section 2744.09 only precludes the application of Chapter 2744, and Defendant Plummer argues that-he is entitled to statutory immunity pursuant to R.C. 311.05, in addition to R.C. 2744.02. (Doc. 21, at 6.) See Coley n Lucas Cnty., No. 3:09-CV-00008, 2014 U.S. Dist. LEXIS 8260, at *10-17, 2014 WL 273235 (N.D.Ohio Jan. 23, 2014) (analyzing R.C. 311.05 for both official and individual capacity immunity), aff'd, 779 F.3d 530 (6th Cir.2015); Amrhein v. Telb, No, L-06-1170, 2006 WL 2790370, at *2, 2006 Ohio App. LEXIS 5032, at *5 (Ohio Ct.App. Sept. 29, 2006) (stating R.C, 311.05 establishes qualified immunity for a sheriff). Under this Section, a “sheriff shall only be responsible for the.. .misconduct in office of any of -his deputies if he orders,- has prior knowledge of, participates in, acts in reckless disregard of, or ratifies the... misconduct in office of the deputy.” Ohio Rev. Code § 311.05.

Here, Plaintiff Sollenberger does not allege that Defendant Plummer ordered, possessed prior knowledge of, participated in, or acted in reckless disregard of Sheriff Defendants’ actions in searching the old phone. Rather, Plaintiff Sollenberger argues in his response “[Defendant Plummer] undoubtedly ratified all of the employees” prior conduct--when [Plaintiff Sollenberger] was placed on administrative leave and subsequently terminated.” (Doc. 19, at 14.) An inference may be made that Defendant Plummer, as Sheriff, was aware of Plaintiff Sollenberger’s termination. However, even assuming this conclusory statement as fact, it does not support Defendant Plummer’s reckless disregard of, or involvement in, the alleged misconduct of his deputies, which was the alleged improper search of the old cell phone, not Plaintiff Sollenberger’s termination.

Moreover, there are no facts alleged demonstrating any involvement, knowledge of, participation, or reckless disregard of the alleged misconduct' by Defendant Plummer that would remove him from the protections of R.C. 311.05. “Negligence or inaction alone are insufficient in themselves to show ratification of an agent’s unauthorized act, but ratification must follow knowledge of the facts.” Morr v. Crouch, 19 Ohio St.2d 24, 249 N.E.2d 780, 784 (1969). “[A]n Ohio Appellate Court interpreted this phrase to mean that ‘inaction or silence alone is not enough to prove ratification of an agent’s unautho,-rized action, but that ratification can be shown by inaction or silence where the principal is fully informed of all the material facts to the agent’s actions.’” Coley, 2014 U.S. Dist. LEXIS 8260, at *16, 2014 WL 273235 (quoting Amato v. Heinika Ltd., No. 84479, 2005 WL 110441, at *2, 2005 Ohio App. LEXIS 206, *5 (Ohio App. Ct.2005)).

While Plaintiff Sollenberger did allege he was placed on administrative leave and subsequently terminated, a fact that must be áccepted as true; Plaintiff Sollenberger does not allege any facts beyond what can be inferred as mere inaction or silence, nor does he allege that Defendant Plummer was fully informed of all material facts of the alleged misconduct. Therefore, the Court DISMISSES Plaintiff Sollenber-ger’s’invasion of privacy claim, civil claim pursuant to R.C. 2307.60, and civil conspiracy claim against Defendant Plummer, without prejudice.

Additionally, Plaintiff Sollenberger argues certain exceptions that fall within the second tier of the analysis and, if plausibly stated, are applicable against Sheriff Defendants. (Doc. 19, at 14.) .

a. Individual Capacity Immunity— Sheriff Defendants

Plaintiff Sollenberger argues that Section 2744.02(B)(5) applies to Sheriff Defendants because civil liability may be imposed upon á political subdivision by a section of the Ohio Revised Code. (Id., at 14.) Additionally, Plaintiff Sollenberger argues liability is imposed under the exceptions to immunity púrsuant to R.C. 2744.03(A)(6)(a)-(c). (Id.) In contrast, Sheriff Defendants argue' that Section 2744.02(B)(5) is inapplicable to individual employees and that Plaintiff Sollenberger has not alleged facts to support the application of any of the three exceptions in R.C. 2744.03(A)(6); therefore, the statute provides them with statutory immunity for Plaintiff Sollenberger’s state law claims. (Doc. 13, at PagelD# 345.)

Here, Plaintiff Sollenberger does not explicitly state that Sheriff Defendants were sued in their individual capacities. “[W]hen a plaintiff does not allege capacity specifically; the court must examine the nature of the plaintiffs claims, the relief sought, and the course of proceedings to determine whether a state official is being sued in a personal capacity.” Biggs v. Meadows, 66 F.3d 56, 61 (4h Cir.1995). In the analysis, the Court must consider factors, such as “the nature of the plaintiffs claims, requests for compensatory or punitive damages, and the nature of any defenses raised in response to the complaint, particularly claims of qualified immunity, to determine whether the defendant had actual knowledge of the potential for individual liability.” Moore v. City of Harriman, 272 F.3d 769, 773 n. (6th Cir.2001) (citing Biggs, 66 F.3d at 61).

In Plaintiff Sollenberger’s Complaint, the caption names each Sheriff Defendant, but does not provide a designation describing the capacity in which they are- sued. (Doc. 2-1, at PagelD# 87-88.) The only party with such a designation is Defendant Plummer, who “is being sued in his official capacity as the Sheriff of Montgomery County.” (Id., at PagelD# 88.) Plaintiff Sollenberger names each individual Sheriff Defendant, followed by “was an employee of the Montgomery County Sheriffs Office during the relevant time period, and was operating within the scope of employment at all times alleged herein.” (Id.) Nonetheless, Plaintiff Sollenberger has-sued the Sheriff Defendants for three torts under Ohio law. (Id., at PagelD# 90-92, 94.) Additionally, Plaintiff Sollenberger invoked an exception to statutory immunity for individual