United States District Court, S.D. Ohio
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, United States Magistrate Judge
Azuriah Hoskins brings this action against Hamilton County
Commissioners Todd Portune, Denise Driehaus, and Chris Monzel
(the Commissioners) in their official capacity; Hamilton
County Juvenile Court Administrator John M. Williams in his
official and individual capacities; and correctional officers
Benjamin Peterson and Coley Turner and supervisors Dave
Luensman and Allen (Detention Center employees),
each of whom he has named in their official and individual
capacities. Plaintiff filed the original complaint on May 4,
2018. (Doc. 2). The allegations of the original complaint are
set forth in the Report and Recommendation issued on October
25, 2018. (Doc. 18). Plaintiff s claims arise out of an
incident that occurred on March 3, 2018 at the Hamilton
County, Ohio Juvenile Court Detention Center (Detention
Center), where plaintiff was housed. Plaintiff alleges that
defendants Peterson and Turner, employees of the Detention
Center, used excessive force against him and that he suffered
a broken arm as a result. He brings claims under 42 U.S.C.
§ 1983 for violations of his Eighth Amendment rights
against defendant Peterson (First Cause of Action) and
against defendants Peterson and Turner (Second and Third
Causes of Action); a claim for violations of his Fourth and
Fourteenth Amendment rights against "defendants"
for breach of a duty to train, instruct, and supervise
(Fourth Cause of Action); and a claim for violation of his
Fourth Amendment rights based on excessive use of force
against defendant Peterson (Fifth Cause of Action). Plaintiff
also brings claims against "defendants" for assault
and battery (Sixth Cause of Action) and intentional
infliction of emotional distress (Seventh Cause of Action)
under the Ohio Constitution and Ohio law.
matter is before the Court on the following motions:
• Defendant Williams' motion for judgment on the
pleadings (Doc. 21), plaintiffs response in opposition (Doc.
37), and defendant's reply in support of his motion (Doc.
• Plaintiffs motion to amend/correct his response in
opposition to the motion for judgment on the pleadings (Doc.
• Plaintiffs first motion to amend/correct the complaint
(Doc. 22), and defendants' opposing memoranda (Docs. 23,
• Plaintiffs second motion to amend/correct the
complaint (Doc. 33), and defendant Williams' opposing
memorandum (Doc. 41)
• The Commissioners' motion to dismiss the amended
complaint (Doc. 30), plaintiffs opposing memorandum (Doc.
32), and the Commissioners' reply (Doc. 34)
• Plaintiffs first motion for judgment on the pleadings
(Doc. 38), and defendants' opposing memoranda (Docs. 40,
• Plaintiffs motion to attach exhibits to his motion for
judgment on the pleadings (Doc. 50), the County
defendants' opposing memorandum (Doc. 51), and plaintiffs
reply (Doc. 52).
Plaintiffs motions for leave to amend the complaint (Docs.
filed a motion for leave to amend the complaint on November
23, 2018, to purportedly specify the Ohio Constitutional
provision he brings his state law claims under and to add a
negligence claim. (Doc. 22). On November 29, 2018, plaintiff
submitted a proposed amended complaint that actually amends
the complaint by: (1) adding a factual allegation that
plaintiff is permanently disfigured and disabled; and (2)
adding a cause of action for negligence (Eighth Cause of
Action) under Ohio Rev. Code Ch. 2307 and Ohio Rev. Code
§ 2307.50. (Doc. 24). Defendants Allen, Lonzman,
Peterson, and Turner filed an answer to the proposed amended
complaint. (Doc. 29). The Commissioners filed a motion to
dismiss the proposed amended complaint on grounds they had
previously raised in their first motion to
dismiss. (Doc. 30). Defendant Williams filed a
response in opposition to the motion to amend the complaint
on the ground the amendment would be futile because the
proposed amended complaint includes no factual allegations
against him. (Doc. 31).
moved for leave to file a second amended complaint on January
11, 2019 to add Dwayne R. Bowman, superintendent of the
Detention Center, as a party. (Doc. 33). Plaintiff also
sought to add the following language to the beginning of
¶ 3, which identifies parties to the lawsuit:
"Juvenile Court Administrative Judge John Williams
appoints the superintendent of the Hamilton County Juvenile
Court Detention Center, Dwayne R. Bowman.. .." (Doc. 33
at 2). Plaintiff also proposes to add a Ninth Cause of Action
for violation of his equal protection rights alleging that
"Defendants' conduct as described in [sic] above,
constitute [sic] a violation of the equal protection clause
of the Fourteenth Amendment to the Constitution of the United
States and [sic] enforced through 42 U.S.C. Section
1983." (Id. at 9).
Williams opposes plaintiffs motion for leave to amend the
complaint a second time on the ground the proposed amendment
would be futile. (Doc. 41). Williams argues that addition of
the proposed language would not change the defects in the
amended complaint, which fails to assert any specific
allegations of wrongdoing by him. (Id. at 2). He
alleges the proposed amendment does not indicate why his
appointment of the superintendent of the Detention Center
harmed plaintiff and why Williams should be held liable
simply for appointing the superintendent. The Commissioners
and Detention Center employees also oppose the motion for
leave to file a second amended complaint on the grounds of
futility. (Doc. 43). They contend that plaintiff has not pled
any facts to show that Bowman took an action that allegedly
violated plaintiffs rights, and Bowman has not been the
superintendent of the Detention Center since September 2016,
well before the March 3, 2018 incident giving rise to
plaintiffs complaint. (Id. at 2). Defendants further
assert that plaintiff has not pled facts to show he was
treated differently than a similarly-situated individual so
as to support a claim for violation of his equal protection
rights. (Id., citing Richland Bookman, Inc., v.
Nichols, 278 F.3d 570, 574 (6th Cir. 2002) ("The
Equal Protection Clause protects against arbitrary
classifications, and requires that similarly situated persons
be treated equally.")).
granting or denial of a motion to amend pursuant to
Fed.R.Civ.P. 15(a) is within the discretion of the trial
court. Leave to amend a complaint should be liberally
granted. Foman v. Davis, 371 U.S. 178 (1962).
"In deciding whether to grant a motion to amend, courts
should consider undue delay in filing, lack of notice to the
opposing party, bad faith by the moving party, repeated
failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of
amendment." Brumbalough v. Camelot Care Ctrs.,
Inc., 427 F.3d 996, 1001 (6th Cir. 2005). The test for
futility is whether the amended complaint could survive a
Fed.R.Civ.P. 12(b)(6) motion to dismiss. Rose v. Hartford
Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir.
should be granted leave to file the proposed first amended
complaint to add a factual allegation that his injury is
permanent and to add a negligence claim. (Doc. 24). Plaintiff
should be denied leave to amend the complaint a second time.
First, it would be futile for plaintiff to add Bowman as a
party. The proposed second amended complaint states that
Bowman was appointed as the superintendent of the Detention
Center, but it includes no factual allegations against him.
The complaint as amended does not give Bowman fair notice of
any claims against him and the grounds upon which those
claims rest. Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam). Thus, the proposed second amended
complaint does not state a claim for relief against Bowman.
it would be futile to allow plaintiff to amend the complaint
to add information about Williams in the description of the
parties. As explained infra, plaintiff has not made
any specific allegations in the amended complaint which, if
accepted as true, show that Williams can be held liable for
plaintiffs alleged injury. The proposed second amendment does
not cure this defect.
it would be futile for plaintiff to bring an equal protection
claim. Plaintiff has not alleged facts to show that
defendants' conduct burdens a fundamental right, that he
is a member of a suspect class, or that defendants have
treated him differently without any rational basis, so as to
state a claim for violation of his equal protection rights.
See Short v. Mary, 617 Fed.Appx. 410, 413 (6th Cir.
2015). Thus, plaintiffs motion for leave to file a second
amended complaint (Doc. 33) should be denied.
Plaintiffs motions for leave to amend/correct filings (Docs.
seeks leave to file a corrected memorandum in response to
defendant Williams' motion for judgment on the pleadings
to include pages 2-14 of the memorandum. (Doc. 39). Defendant
Williams does not oppose the motion. Plaintiffs motion for
leave to file (Doc. 39) is therefore granted and the
corrected memorandum (Doc. 39-1) is accepted for filing.
April 2, 2019, plaintiff filed a motion for leave to add two
exhibits to his motion for judgment on the pleadings. (Doc.
50). Defendants oppose the motion on the ground plaintiff
filed the motion in contravention of the Court's Order
issued on February 2, 2019, which prohibits the parties from
filing "any additional motions until the pending
dispositive motions have been ruled on by the district judge
and the scheduling conference has been held." (Doc. 51
at 2, citing Doc. 47). The dispositive motions remain pending
and no scheduling conference has been held to date. Counsel
for plaintiff does not deny in the reply in support of the
motion (Doc. 52) that motion was filed in contravention of
the Court's February 2, 2019 Order. Further, as discussed
infra, matters outside the pleadings are not
properly considered in connection with plaintiffs motion for
judgment on the pleadings. Plaintiffs motion to file the
exhibits (Doc. 50) is therefore denied.
Defendants' motions for judgment on the pleadings and to
dismiss plaintiffs claims A. Standard of review
ruling on a Rule 12(b)(6) motion, the Court must accept all
factual allegations as true and make reasonable inferences in
favor of the non-moving party. Keys v. Humana, Inc.,
684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v.
Butter, 420 F.3d 571, 575 (6th Cir. 2005)). Only "a
short and plain statement of the claim showing that the
pleader is entitled to relief is required. Id.
(quoting Fed.R.Civ.P. 8(a)(2)). "[T]he statement need
only give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests." Id.
(quoting Erickson, 551 U.S. at 93 (internal
quotation marks omitted) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Although the
plaintiff need not plead specific facts, the "[f]actual
allegations must be enough to raise a right to relief above
the speculative level" and to "state a claim to
relief that is plausible on its face." Id.
(quoting Twombly, 550 U.S. at 555, 570). A claim is
plausible on its face "when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). "[A] plaintiffs obligation to provide the
grounds of his entitle[ment] to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do."
Twombly, 550 U.S. at 555 (internal quotation marks
omitted). The Court need not accept as true the plaintiffs
legal conclusions. See Gean v. Hattaway, 330 F.3d
758, 765 (6th Cir. 2003).
apply the same analysis to motions for judgment on the
pleadings under Rule 12(c) as they apply to motions to
dismiss under Fed.R.Civ.P. 12(b)(6). See Warrior
Sports,Inc. v. Nat 7 Collegiate Athletic
Ass 'n,623 F.3d 281, 284 (6th Cir. 2010). "For
purposes of a motion for judgment on the pleadings, all
well-pleaded material allegations of the pleadings of the
opposing party must be taken as true, and the motion may be
granted only if the moving party is nevertheless clearly
entitled to judgment." JPMorgan Chase Bank, N.A. v.
Winget,510 F.3d 577, 582 (6th Cir. 2007) (internal
citation and quotation marks omitted)). ...