United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
March 5, 2019, Plaintiff Tyrone Dixon, presently incarcerated
at the Southeastern Correctional Institution in Lancaster,
Ohio, tendered a civil rights complaint together with an
application to proceed in forma pauperis. Pursuant
to local practice, the case has been referred to the
undersigned magistrate judge. The case is now before the
undersigned on multiple motions filed by both Plaintiff and
Defendants. For the reasons that follow, I now recommend that
this case be DISMISSED.
April 16, 2019, the undersigned granted Plaintiff's
application to commence his case in forma pauperis,
while directing Plaintiff to pay the full filing fee of
$350.00 through periodic payments calculated from the income
credited to Plaintiff's prison account, pursuant to 28
U.S.C. § 1915(b)(2). (Doc. 6). On the same date, the
undersigned issued an order noting that the complaint was
subject to initial screening under the Prison Litigation
Reform Act of 1995, § 804, 28 U.S.C. §
1915(e)(2)(B); § 805, 28 U.S.C. § 1915A(b). Unlike
most prisoner-litigants who seek to proceed in forma
pauperis, Plaintiff here does not proceed pro se, but is
represented by an attorney who appears frequently in this
Court. Without discussion of any specific claims,
the § 1915(e) screening Order states simply: “At
this stage in the proceedings…the undersigned
concludes that the complaint is deserving of further
development and may proceed at this juncture.” (Doc. 8
at 1). A more detailed summary of Plaintiff's allegations
appears below, but Plaintiff generally invokes this
Court's federal question jurisdiction under 28 U.S.C.
§1331 and 42 U.S.C. § 1983, and invokes
supplemental jurisdiction over additional claims alleged
under state law. After concluding that Plaintiff's claims
were sufficient to proceed “at this juncture, ”
the Court ordered service on Plaintiff's behalf by the
United States Marshal, with the costs of service to be
advanced by the United States.
motions are currently pending before the Court, including one
motion relating to service issues. Despite the grant of
in forma pauperis status and the Court's Order
directing service on Plaintiff's behalf by the U.S.
Marshal, Plaintiff's counsel made a request of the Clerk
of Court for the issuance of summons forms. (Doc. 4). The
record reflects that Plaintiff's counsel attempted to
serve the Defendants, and filed “executed” copies
of summons forms addressed to various Defendants on April 18,
2019, June 22, 2019, and June 24, 2019. (Docs. 9, 10, 11). In
the meantime, the U.S. Marshal complied with the Court's
order and separately served the various Defendants on
Plaintiff's behalf. The U.S. Marshal filed executed
summons forms on August 1, 2019. (Doc. 30).
8, 2019, Plaintiff filed a motion seeking the entry of a
default judgment against Defendant Benjamin Peterson. (Doc.
17). The next day, Defendant Peterson filed both a response
in opposition to the application for entry of default, and a
motion to dismiss all claims against him based upon
insufficiency of service of process. (Docs. 20, 21). On July
19, 2019, Plaintiff filed a memorandum in opposition to
dismissal and in support of the entry of default. (Doc. 26).
addition to motions related to service on Defendant Peterson,
other Defendants have moved to dismiss under Rule 12(b)(6).
On June 25, 2019, Defendants Denise Driehaus, Chris Monzel,
and Todd Portune, all members of the Hamilton County Board of
Commissioners (hereinafter “the Board”), filed a
motion to dismiss all claims against them for failure to
state a claim, to which Plaintiff filed a response, and
Defendants filed a reply. (Docs. 14, 16, 22). On July 15,
2019, Defendant John M. Williams filed a separate motion to
dismiss for failure to state a claim. (Doc. 25). Plaintiff
has filed no timely response to Defendant Williams'
motion. Last, Plaintiff recently filed a motion to amend the
complaint. (Doc. 29). Although the time for filing a
response has not yet expired, judicial economy favors
addressing Plaintiff's motion to amend in this R&R.
Standard of Review
considering a motion to dismiss under Rule 12(b)(6), the
court is required to construe the complaint in the light most
favorable to the Plaintiff and to accept all well-pleaded
factual allegations in the complaint as true. See Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974) and Lewis v. ACB
Business Services, 135 F.3d 389, 405 (6th Cir. 1998). A
court, however, will not accept conclusions of law or
unwarranted inferences which are presented as factual
allegations. Blackburn v. Fisk University, 443 F.2d
121, 124 (6th Cir. 1974). Instead, a complaint must contain
either direct or reasonable inferential allegations that
support all material elements necessary to sustain a recovery
under some viable legal theory. Lewis v. ACB, 135
F.3d at 405 (internal citations omitted). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitlement to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted); Association of Cleveland Fire Fighters v. City
of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007). A
complaint will generally survive under Rule 12(b)(6)
standards if it contains sufficient factual content
“that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Reilly v. Vadlamudi, 680 F.3d 617,
622-23 (6th Cir. 2012) (quoting Ashcraft v. Iqbal,
29 S.Ct. 1937, 1949 (2009)). By contrast, if a defendant has
filed a well-supported and meritorious motion to dismiss that
clearly illustrates that the plaintiff has failed to state a
claim, the motion will be granted.
the Defendants' well-supported motions should be granted.
It is worth noting that the legal standard of review for
failure to state a claim under Rule 12(b)(6) is technically
the same as the standard of review for failure to state a
claim under 28 U.S.C. §§ 1915(e) or 1915A. See
Hill v. Lappin, 630 F.3d 468, 470-471 (6th Cir.2010).
However, the frame of reference differs significantly.
Screening under 28 U.S.C. § 1915(e) is extremely
liberal. The perspective of this Court, examining
the complaint on a superficial level without benefit of
briefing, differs from that of an opposing party who has an
incentive to thoroughly explore all possible legal arguments
in a subsequent motion to dismiss or motion for judgment on
the pleadings. Necessarily constrained by limitations of time
and resources in the course of its initial sua
sponte examination, this Court frequently will permit
“further development” of a weak legal claim by
requiring a defendant to file an answer or response.
time, however, in addition to granting Defendants'
motions, the undersigned concludes that additional claims
should be dismissed sua sponte pursuant to 28 U.S.C.
§§ 1915(e) and 1915A. Notwithstanding the
undersigned's initial screening order permitting all
claims to proceed, 28 U.S.C. § 1915(e)(2) expressly
permits dismissal “at any time if the court
determines that ... the action or appeal ... fails to state a
claim on which relief may be granted.” Id.
(emphasis added). Therefore, the statute itself allows
dismissal based upon a subsequent redetermination that no
claim has been stated, even if the court's initial
inclination was to let the claim proceed. In the case
presented, Defendants' well-reasoned motions, in
combination with Plaintiff's motion for leave to amend
the complaint, have caused the undersigned to take a fresh
look at the pleading.
The Defendants' Two Motions to Dismiss
the Board and Defendant Williams argue that Plaintiff has
failed to state any claim against them. The complaint alleges
that Plaintiff resided at the Hamilton County Juvenile
Detention Center from an unspecified date in January 2018
through May 7, 2018. (Doc. 2 at ¶7). Plaintiff alleges
that on two days in May 2018, Defendant Correctional Officer
Peterson verbally threatened to break Plaintiff's arm.
(Id. at ¶9). Either on one of the same days or
on some other date, Defendant Peterson also allegedly
threatened to place Plaintiff in isolation in a “dirty,
bad room” “because Dixon was wrapping around
‘my birthday' which is May 7th.”
(Id. at ¶11). Plaintiff alleges that, two
months earlier in March 2018, Peterson was involved in an
incident with someone named “Hoskins, ” and that
Peterson “broke Hoskins['] arm in three
places.” (Id. at ¶13).
asserts five causes of action against the entire group of
Defendants: (1) Freedom of Speech; (2) Failure to Train,
Instruct and Supervise; (3) Ohio Constitution and Laws of
Ohio Assault; (4) Common Law Negligence; and (5) Ohio
Constitution and Laws of Ohio Intentional Infliction of
Emotional Distress. The first two causes of action purport to
allege violations of Plaintiff's constitutional rights
under 42 U.S.C. § 1983, whereas the remaining three
causes of action rely on state law.
only reference to either the Board or Judge Williams
contained in the entire complaint states in relevant part:
Judge Williams is responsible for the Juvenile Detention
Center and appoints Superintendent of the Detention
Center…. [T]he Hamilton County Board of Commissioners
and Judge Williams are responsible for regulating and
supervising Hamilton County Ohio Juvenile Court Detention
(Id. at ¶3).
undersigned takes judicial notice that both the Board and
Judge Williams recently filed motions to dismiss or for
judgment as a matter of law in another case in which a
different inmate housed at the Hamilton County Juvenile
Detention Center, represented by the same counsel, also filed
suit against the Board and Judge Williams, among others.
See Godfrey v. Hamilton County Juvenile Court, John M.
Williams, Administrator, Case No. 1:18-cv-663-SJD-KLL.
Although the underlying facts of Godfrey differ from
those presented here, the essence of the Plaintiff's
allegations against the Board and Judge Williams do not. On
July 18, 2019, Magistrate Judge Litkovitz filed a Report and
Recommendation (“R&R”) that recommends
granting the Defendants' motions to dismiss claims
against them in the Godfrey case. The undersigned
finds Judge Litkovitz's reasoning to be compelling, and
adopts it in its entirety.
Plaintiff's § 1983 Claims Against the Board and
case as in Godfrey, the Board argues that the
authority of County Commissioners is limited, and that the
Defendant Board members have no operational control of the
county juvenile detention center where Plaintiff alleges that
any injuries took place. “The Hamilton County Board of
Commissioners has no role or authority to determine who is
hired as a deputy by the superintendent of the Hamilton
County Juvenile Detention Center, how those employees are
trained, how they are discipline[d], or how the facility is
operated.” (Doc. 14 at 3). Plaintiff's primary
argument in response is that it is not the Court's task
“to undertake an exhaustive analysis of the legal
validity of the claims in the suit…., ” and that
all that is required to give the defendants fair notice of
what the claims are and the grounds upon which the claims
rest. (Doc. 16 at 4). Plaintiff further alleges that the
Board's website shows “they have some
responsibility” for the Detention Center.”
(Id. at 5). Plaintiff asserts that whether the Board
breached a duty and proximately caused harm to Plaintiff will
require discovery. (Id.)
reasons stated by Magistrate Judge Litkovitz in her recent
analysis of the same arguments, the Defendant Board is
entitled to dismissal of all § 1983 claims alleged by
Plaintiff's complaint fails to state a claim for relief
against the Board under § 1983. An Ohio county can be
sued under § 1983 through its board of commissioners.
Smith v. Grady, 960 F.Supp.2d 735, 740 (S.D. Ohio
2013) (citing Ohio Rev. Code § 305.12). Plaintiff's
complaint against the Board is in reality an official
capacity suit against Hamilton County, the entity of which
the Board is an agent. Monell v. New York City Dept. of
Social Services, 436 U.S. 658, 690 (1978). See also
Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989).
Municipalities and counties are not vicariously liable for
the actions of their employees under § 1983.
Id. “It is firmly established that a
municipality, or as in this case a county, cannot be held
liable under § 1983 for an injury inflicted solely by
its employees or agents.” Gregory v. Shelby County,
Tenn., 220 F.3d 433, 441 (6th Cir. 2000) (citing
Monell, 436 U.S. at 694). To state a claim for
relief under § 1983 against a county, plaintiff must
allege that his “injuries were the result of an
unconstitutional policy or custom” of the county.
Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir.
1994); see also Monell, 436 U.S. at 694; Doe v.
Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996).
Cf. Polk County v. Dodson, 454 U.S. 312 (1981)
(municipal policy must be “moving force” behind
constitutional deprivation). A plaintiff may show the
existence of an unlawful policy or custom by demonstrating
“(1) the existence of an illegal official policy or
legislative enactment; (2) that an official with final
decision making authority ratified illegal actions; (3) the
existence of a policy of inadequate training or supervision;
or (4) the existence of a custom of tolerance or acquiescence
of federal rights violations.” Burgess v.
Fischer, 735 F.3d 462, 478 (6th Cir. 2013) (citing
Thomas v. City of Chattanooga, 398 F.3d 426, 429
(6th Cir. 2005)). Counties and other governmental entities
cannot be held responsible for a constitutional deprivation
unless there is a direct causal link between a policy or
custom and the alleged deprivation. Monell, 436 U.S.
at 691; Deaton v. Montgomery Cnty., Ohio, 989 F.2d
885, 889 (6th Cir. 1993).
Godfrey, Doc. 43, R&R at 6-7, 2019 WL 3239259 at
*3 (S.D. Ohio July 18, 2019).
above-captioned case, Plaintiff seeks to impose liability on
the Board for injuries that allegedly were caused by a single
correctional officer. For the reasons explained below, the
undersigned concludes that none of Plaintiff's factual
allegations state any claim as a matter of law. Even if the
instant complaint otherwise stated a claim against any
identified Defendant, however, the undersigned still concurs
with and adopts the analysis of Judge Litkovitz:
Plaintiff contends that the Detention Center is part of the
Juvenile Court and, by extension, the Board is responsible
for Detention Center employees…. Plaintiff's
barebones allegation that the Board is responsible for
regulating and supervising the Juvenile Court and the
Detention Center and therefore [is] liable in this case is an
attempt to impose vicarious liability on the Board. This is
an insufficient basis to state a claim for relief under
§ 1983… In addition, plaintiff has alleged no
facts indicating that Detention Center employees violated his
constitutional rights pursuant to a policy or custom of the
County. Plaintiff's allegations are insufficient to
support the imposition of liability on the Board for the
alleged acts and omissions of the Detention Center employees
under a failure to train or any other theory of liability.
Burgess, 735 F.3d at 478. Thus, plaintiff has failed
to state an actionable claim for relief against the Board
based on the theory of municipal liability. See
Monell, 436 U.S. at 693-94. Plaintiff's 1983 claim
against the Board should be dismissed.
Id., Doc. 43 at 7-8, 2019 WL 3239259 at *4
(additional internal citations and footnote omitted).
Williams is entitled to dismissal of Plaintiff's §
1983 claims for similar reasons. Notably, Plaintiff has filed
no timely response in opposition to the motion filed by Judge
Williams, which motion is persuasive. Finding no need to
reinvent the wheel, the undersigned adopts Judge
Litkovitz's well-reasoned analysis as to Plaintiff
Dixon's claims against Judge Williams in his official
Plaintiff's amended complaint against defendant Williams
in his official capacity should be dismissed. Any form of
relief sought against a State in federal court is barred
under the Eleventh Amendment unless the State has waived its
sovereign immunity. See Seminole Tribe of Fla. v.
Fla., 517 U.S. 44, 58 (1996); Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 98-101 (1984);
Hamilton's Bogarts, Inc. v. Mich., 501 F.3d 644,
654 n.8 (6th Cir. 2007). The State of Ohio has not
constitutionally nor statutorily waived its Eleventh
Amendment immunity in the federal courts. See Johns v.
Supreme Court of Ohio, 753 F.2d 524 (6th Cir. 1985);
State of Ohio v. Madeline Marie Nursing Homes, 694
F.2d 449 (6th Cir. 1982). The Eleventh Amendment bar extends
to actions where the state is not a named party, but where
the action is essentially one for the recovery of money from
the state. Edelman v. Jordan, 415 U.S. 651, 663
(1974); Ford Motor Company v. Dept. of Treasury, 323
U.S. 459, 464 (1945). A suit against state officials in their
official capacities would, in reality, be a way of pleading
the action against the entity of which the state officials
are agents. Monell, 436 U.S. at 690. Thus, actions
against state officials in their official capacities are
included in this bar. Will v. Michigan Dept. of State
Police, 491 U.S. 58, 70-71 (1989); Scheuer v.
Rhodes, 416 U.S. 232 (1974). See also Calvin v.
Caruso, 605 F.3d 282, 289 (6th Cir. 2010) (citing
Cady v. Arenac County, 574 F.3d 334, 344 (6th Cir.
2009)) (“[A]n official-capacity suit against a state
official is deemed to be a suit against the state and is thus
barred by the Eleventh Amendment, absent a waiver.”)
(citation and ellipsis omitted).
A claim against a Juvenile Court judge in his official
capacity is treated as a suit against the Juvenile Court,
which is an arm of the state. Smith v. Grady, 960
F.Supp.2d 735, 752 (S.D. Ohio 2013). This Court has
previously held that because the Hamilton County Juvenile
Court is an arm of the state, a juvenile court judge who is
sued in his or her official capacity is entitled to sovereign
immunity under the Eleventh Amendment. Id. See also
Hunter v. Hamilton County, No. 1:15-cv-540, 2016 WL
11463840, at *6 (S.D. Ohio May 5, 2016) (Report and
Recommendation), adopted, 2016 WL 4836810 (S.D. Ohio
Sept. 15, 2016) (citing Hafer v. Melo, 502 U.S. 21,
25-26 (1991)) (citing Will, 491 U.S. at 66-71;
Quern v. Jordan, 440 U.S. 332, 340-41 (1979)).
Therefore, defendant Williams, in his official capacity, is
immune from suit under the Eleventh Amendment.
Plaintiff's § 1983 claim against Williams in his
official capacity should be dismissed.
Godfrey, 2019 WL 3239259 at **4-5 (internal footnote
omitted). The undersigned further agrees with Defendant
Williams that the Hamilton County Juvenile Court is not an
entity capable of being sued. See also Id. at 5,
undersigned finds equally compelling Godfrey's
analysis of identical § 1983 claims filed against Judge
Williams in his individual capacity:
Plaintiff's sole allegation against Williams in support
of the § 1983 claim is that he is “responsible for
regulating and supervising [the] Hamilton County Ohio
Juvenile Court.” …
* * * * *
An individual-capacity suit under § 1983 must be
premised on more than respondeat superior liability.
See Iqbal, 556 U.S. 676; Monell, 436 U.S.
at 691. “[Section] 1983 liability of supervisory
personnel must be based on more than the right to control
employees.” Bellamy v. Bradley, 729 F.2d 416,
421 (6th Cir. 1984). The “failure of a supervisory
official to supervise, control, or train the offending
individual officers is not actionable absent a showing that
the official either encouraged the specific incident of
misconduct or in some other way directly participated in it.
At a minimum a plaintiff must show that the official at least
implicitly authorized, approved, or knowingly acquiesced in
the unconstitutional conduct of the offending
officers.” Hays v. Jefferson County, 668 F.2d
869, 874 (6th Cir. 1982); see also McQueen v. Beecher
Community Schools, 433 F.3d 460, 470 (6th Cir. 2006).
Liability under § 1983 is premised on active
unconstitutional behavior and not a mere failure to act.
Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002)
Plaintiff alleges no facts indicating that Williams
“either encouraged the specific incident of misconduct
or in some other way directly participated in it, ” or
that he “at least implicitly authorized, approved, or
knowingly acquiesced in the unconstitutional conduct of the
offending officers.” See Hays, 668 F.2d at
874. Plaintiff's allegations that Williams has
supervisory responsibility for the Juvenile Court and did not
train, instruct, or supervise employees of the Detention
Center are vague and conclusory. Under Ohio law, the
Detention Center Superintendent, and not the Juvenile Court
judge, is responsible for managing and supervising Detention
Center employees. See Ohio Rev. Code § 2151.70.
Plaintiff essentially alleges vicarious liability against
defendant Williams, which cannot support a § 1983 claim
against Williams. The § 1983 claim brought against
Williams in his individual capacity should be dismissed.
Id. at *5.
addition to the reasons stated by Judge Litkovitz, to the
extent that Plaintiff asserts a violation of “Freedom
of Speech” under “Article 1, §11 of the Ohio
Constitution, ” (Doc. 2 at ¶ 17), Plaintiff's
claim fails because there is no private cause of action for
relief for violations of the Ohio Constitution. See,
e.g., Provens v. Stark Cty. Bd. of Mental
Retardation & Developmental Disabilities, 64
Ohio St.3d 252, 261, 594 N.E.2d 959, 966 (Ohio 1992).
Plaintiff's State Law Claims Against the Board ...