United States District Court, S.D. Ohio, Western Division
Michael R. Barrett, United States District Court Judge
matter is before the Court on Defendant Adams County
Sheriff's Motion for Judgment on the Pleadings. (Doc.
39). Plaintiffs have filed a memorandum in opposition (Doc.
42), to which Defendant has replied (Doc. 44). For the
reasons that follow, Defendant's Motion will be GRANTED.
are a father, Brandon Friend, and his now-adult daughter,
Kelsey Friend. (Doc. 36 ¶¶ 3-4 at PageID 192).
On December 29, 2014, Kelsey-then a minor-was staying with
her mother at her mother's home in Adams County, Ohio.
(Id. ¶¶ 22, 24 at PageID 195). At that
time, Kelsey's mother was dating Defendant Jeff McCarty,
who was working as an Adams County Deputy Sheriff.
(Id. ¶¶ 8, 23 at PageID 193, 195). McCarty
gave Ambien to Kelsey in order to put her to sleep and then
sexually assaulted her. (Id. ¶ 25 at PageID
195). McCarty “obtained [the Ambien] pursuant to his
employment” with West Union Volunteer Life Squad.
(Id.). Kelsey reported the assault to her basketball
coach the next day. (Id. ¶ 28). A DNA test
confirmed the presence of McCarty's saliva and semen.
(Id. ¶¶ 35-36 at PageID 196). McCarty
pleaded guilty and received jail time for this crime.
(Id. ¶ 38).
One of Plaintiffs' Third Amended Complaint alleges a
civil rights violation under 42 U.S.C. § 1983 against
Defendants Adams County Sheriff and Jeffrey McCarty.
(Id. at PageID 197). Count Two alleges a state law
claim of negligent hiring, retention, and supervision against
Defendants Adams County Sheriff and West Union. (Id.
at PageID 197-98). Defendant West Union has since been
dismissed from the proceedings, and Plaintiffs voluntarily
dismiss Count Two against Defendant Adams County Sheriff.
(Doc. 42 at PageID 246; Doc. 50 at PageID 315). Count Three
alleges a state law claim of assault and battery against
Defendant McCarty. (Doc. 36 at PageID 198). Count Four
alleges a state law claim for negligent infliction of
emotional distress against Defendant McCarty. (Id.).
to Fed.R.Civ.P. 12(c), Defendant Adams County Sheriff moves
for judgment on the pleadings. (Doc. 39).
Rule of Civil Procedure 12(c) permits a party to move for
judgment on the pleadings “[a]fter the pleadings are
closed-but early enough not to delay trial-[.]” The
legal standard for adjudicating a Rule 12(c) motion is the
same as that for adjudicating a Rule 12(b)(6) motion.
Gascho v. Global Fitness Holdings, LLC, 918
F.Supp.2d 708, 716 (S.D. Ohio 2013) (citing Lindsay v.
Yates, 498 F.3d 434 n.5, 438 (6th Cir.
2007)); see Warrior Sports. Inc. v.
Nat'l Collegiate Athletic Ass'n, 623 F.3d 281,
284 (6th Cir. 2010).
12(b)(6) allows a party to move to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To withstand a
dismissal motion, a complaint must contain “more than
labels and conclusions [or] a formulaic recitation of the
elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). The Court does not
require “heightened fact pleading of specifics, but
only enough facts to state a claim for relief that is
plausible on its face.” Id.
at 57 (emphasis added). “A claim has facial
plausibility 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
district court examining the sufficiency of a complaint must
accept the well-pleaded allegations of the complaint as true.
Id.; DiGeronimo Aggregates, LLC v. Zemla,
763 F.3d 506, 509 (6th Cir. 2014).
on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary
judgment under Rule 56.” Fed.R.Civ.P. 12(d) (emphasis
added). In this circumstance, “[a]ll parties must be
given a reasonable opportunity to present all the material
that is pertinent to the motion.”
government employer is liable for its employee's acts
under 42 U.S.C. § 1983 when that employer has a policy
or custom that causes a plaintiff's injury. See
Marcum v. Scioto Cty., Ohio, No. 1:10-cv-790, 2014 WL
3955874, at *31 (S.D. Ohio 2014). A policy or custom need not
be express. See Monell v. Dept. of Soc. Servs. of City of
New York, 436 U.S. 658, 691 (1978) (“even though
such a custom has not received formal approval through the
body's official decisionmaking channels.”); see
also Adickes v. S.H. Kress & Co., 398 U.S. 144,
167-68 (1970) (“‘practices of state officials
could well be so permanent and well settled as to constitute
a “custom or usage” with the force of
Court has carefully reviewed the Third Amended Complaint, and
finds that Plaintiffs have not pleaded sufficient factual
matter to show that it is plausible that Adams
County Sheriff had an official policy or custom that caused
Kelsey's assault. Rather, Plaintiffs merely state that,
“[u]pon information and belief, the Sheriff of Adams
County, Ohio, knew or should have known that Jeff McCarty had
a propensity to sexually assault young females” due to
several alleged complaints against him. (Doc. 36 ¶¶
9-10 at PageID 193). Plaintiffs allege that retaining McCarty
as an employee despite the alleged complaints is evidence of
a policy or custom of “ignoring complaints from its
outsiders towards Deputy Sheriffs” and
“facilitating wrongful activity by its Deputy
Sheriffs.” (Id. ¶¶ 16-17 at PageID
194). Plaintiffs do not allege that Defendant Adams County
Sheriff was aware of any specific complaints against or prior
misconduct by Jeffrey McCarty-or any other Deputy
Sheriffs-except that “he once ran a red light without
his lights on, while driving a Sheriff's car, and damaged
a porch.” (Id. ¶ 41 at PageID 196).
in their Memorandum in Opposition to Defendant Adams County
Sheriff's Motion for Judgment on the Pleadings, argue
that Plaintiffs' Third Amended Complaint does make
“an allegation” of a policy or custom, and
offered two affidavits in support of their contention. (Doc.
42 at PageID 244). However, the Court has since ruled to
exclude these ...