United States District Court, S.D. Ohio, Western Division, Dayton
JAMES J. HOWARD, Plaintiff,
MONTGOMERY COUNTY, OHIO, et al. Defendants.
M. Rose, District Judge
DECISION AND ORDER ON MOTION TO CLARIFY; REPORT AND
Michael R. Merz, United States Magistrate Judge
case is before the Court on Motion to Clarify the Record of
Defendants Montgomery County and Sheriff Phil Plummer (ECF
No. 27). These Defendants make the point that service of
process has recently been returned by the United States
Marshal as executed on “John Doe/Jane Doe (25)”.
That service was made pursuant to a Marshal 285 form which
was provided by Plaintiff and received by the Marshal March
22, 2017 (ECF No. 26, PageID 96). Plaintiff had instructed
that service be made at the Montgomery County Jail at 330
West First Street, but service was accepted by someone named
“Shelly Diaz” who styled herself as Confidential
Secretary on the fourth floor of the Montgomery County
Administration Building at 2:30 p.m. on March 24, 2017.
Id. Although the Form 285 says it was “closed
and returned” March 24, 2107, it was not docketed by
the Clerk's Office until May 19, 2017. Id.
Montgomery County and Sheriff Plummer point out, Plaintiff
filed an amended complaint in which he did not name as
Defendants and John or Jane Does who are employees of the
Sheriff or of Montgomery County and for whim the County
Prosecutor would provide representation in this case.
Plaintiff filed his Amended Complaint in this case on March
20, 2017 (ECF No. 8) and the Court then entered an Order for
service of process on Montgomery County and Naphcare, but not
any John or Jane Does (ECF No. 9, PageID 57). To clarify the
record, there are no John or Jane Does presently named as
Defendants and the Summonses purportedly served on them are
docket does not show service of process on Naphcare. As the
Court advised Plaintiff on February 16, 2017, Fed.R.Civ.P.
4(m) requires dismissal of any defendant not served by March
27, 2017. Since Naphcare has not been served, it is
respectfully recommended that Plaintiff's claims against
Naphcare be dismissed without prejudice for lack of service
case is also before the Court on Motion to Dismiss for
failure to state a claim by Defendants Sheriff Plummer and
Montgomery County (ECF No. 13). On the date that Motion was
filed, Plaintiff was notified of his obligation to respond to
the Motion not later than May 1, 2017 (ECF No. 14). On April
28, 2017, Mr. Howard filed what he captioned “Motion
for Leave for Extension to Amend (ECF No. 24), but which is
in fact a narrative of the facts of the alleged violations of
his rights. At the end he states “Mr. Howard has the
evedence [sic] to prove what Montgomery County Jail and
Naphcare did was wrong and this civil action should not be
dismissed.” Id. at PageID 94.
Montgomery County and Sheriff Plummer argue, they are not
liable for the constitutional violations committed by their
employees on a respondeat superior (i.e. just because they
are employees) basis. Municipalities and other bodies of
local government are "persons" within the meaning
of § 1983 and may therefore be sued directly if they are
alleged to have caused a constitutional tort through a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by that body's officers.
Powers v. Hamilton County Pub. Defender Comm'n,
501 F.3d 592, 606-07 (6th Cir. 2007); Monell
v. New York City Dept. of Social Services, 436 U.S. 658,
690 (1978). Monell's “policy or
custom” requirement applies in § 1983 cases
irrespective of whether the relief sought is monetary or
prospective. Los Angeles County v. Humphries, 562
U.S. 29 (2010). “To establish that a local government
is liable under § 1983, a plaintiff must show that (1)
the local government had an official policy, custom, or
practice that (2) deprived the plaintiff of his federal
rights.” Fields v. Henry Cty., 701 F.3d 180,
183 (6th Cir. 2012), citing Bruederle v.
Louisville Metro Gov't, 687 F.3d 771, 777
(6th Cir. 2012). There must be a direct causal
link between the policy and the alleged constitutional
violation such that the governmental entity's deliberate
conduct can be deemed the moving force behind the
constitutional violation. Graham v. County of
Washtenaw, 358 F.3d 377 (6th Cir. 2004),
citing Waters v. City of Morristown, 242 F.3d 353,
362 (6th Cir. 2001); citing Board of County
Comm'r of Bryan County, Okl., v. Brown, 520 U.S.
397, 404 (1997).
Howard does not allege any policy or custom of Montgomery
County or Sheriff Plummer which caused his injuries. At most,
he asserts acts of medical negligence by various Naphcare
employees. Since Plaintiff and these Naphcare employees are
all residents of Ohio, this Court would not have subject
matter jurisdiction over those claims.
the Amended Complaint fails to state a claim upon which
relief can be granted under 42 U.S.C. § 1983 and it
should be DISMISSED WITHOUT PREJUDICE on that basis.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. .Such objections shall
specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in
whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections within fourteen days after ...