Wesley v. Cuyahoga County Sheriff's Department

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

NELSON ROY WESLEY, ) CASE NO. 1:19 CV 1232

)

Plaintiff, ) JUDGE DONALD C. NUGENT

)

v. )

) MEMORANDUM OF OPINION

CUYAHOGA COUNTY )

SHERIFF’S DEPARTMENT, et al., )

)

Defendants. )

Pro se Plaintiff Nelson Roy Wesley filed the above-captioned action against the Cuyahoga

County Sheriff’s Department, former Cuyahoga County Sheriff Clifford Pinkney, the Cuyahoga

County Corrections Center, Cuyahoga County Corrections Center Director Kenneth Mills, Cuyahoga

County Corrections Center Warden Eric Ivey, Cuyahoga County Corrections Center Corporal

Edward Lawler, Cuyahoga County Executive Armond Buddish, and Cuyahoga County IT

Administrator Emily McNeeley. In the Complaint, Plaintiff alleges Lawler searched his cell and

retaliated against him by taking his mattress when Plaintiff complained about the incident. Plaintiff

also raises general objections about the conditions in the jail. He seeks $ 12,000,000.00 in damages,

and dismissal of the criminal charges pending against him.

Factual and Procedural Background

Plaintiff is a pretrial detainee held in the Cuyahoga County Jail. He alleges that on May 9,

2019, Lawler and another corrections officer came to his cell and served him with a subpoena from

the State of Ohio for all personal papers, effects and handwritten materials in his cell. Plaintiff

contends he had handwritten notes pertaining to his criminal defense strategies. He indicated to

Lawler that his defense strategies were beyond the scope of the subpoena but Lawler still seized the

paperwork. Plaintiff states that when he complained about Lawler’s actions, Lawler ordered

corrections officers to confiscate his mattress. Plaintiff states he was forced to sleep on a concrete

slab until his mattress was returned 2 days later. He sought medical attention for pain derived from

sleeping on the concrete slab and was allegedly told by McNeeley to purchase over-the-counter pain

medication from the jail commissary.

Plaintiff alleges that on January 23, 2019, he filed out an inmate request form and asked to

speak to his caseworker, stating he was feeling suicidal. He contends he received a reply to his

request four months later on May 15, 2019. He claims he was not seen by a mental health

professional.

Finally, Plaintiff claims the living conditions in the jail deny him due process and subject him

to cruel and unusual punishment. He states there is black mold in the showers. He contends the

food trays are old and cracked, and wreak from stale water, vermin feces and dead roaches. He

alleges he has become ill from eating from the food trays. He states he had to share a one man cell

with another inmate and slept on the floor near the toilet. He indicates he was subjected to “red

zone” lock downs from 10:00 a.m. to 7:00 p.m. and then from 9:00 p.m. until 7:00 a.m. He claims

he was told that the only way to see mental health professionals was to threaten suicide. He states

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however, that if suicide is threatened, the inmate is stripped naked and placed in an isolation cell for

observation. He claims this is a sufficient deterrent to requesting mental health services. He states

he fears he will die due to the living conditions and cruel and unusual punishment.

Standard of Review

Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365

(1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the Court is required to dismiss

an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief

can be granted, or if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319

(1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d

194, 197 (6th Cir. 1996). A claim lacks an arguable basis in law or fact when it is premised on an

indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke, 490

US. at 327.

A cause of action fails to state a claim upon which relief may be granted when it lacks

“plausibility in the Complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading

must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.”

Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009). The factual allegations in the pleading must be

sufficient to raise the right to relief above the speculative level on the assumption that all the

allegations in the Complaint are true. Twombly, 550 U.S. at 555. The Plaintiff is not required to

include detailed factual allegations, but must provide more than “an unadorned, the Defendant

unlawfully harmed me accusation.” Igbal, 556 U.S. at 678. A pleading that offers legal conclusions

or a simple recitation of the elements of a cause of action will not meet this pleading standard. Id.

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In reviewing a Complaint, the Court must construe the pleading in the light most favorable to the

Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998)

Discussion

Plaintiff’s Complaint advances claims against several Defendants—namely, the Cuyahoga

County Sheriff's Department and the Cuyahoga County Corrections Center —that are not entities

capable of being sued. See, e.g., Carmichael v. City of Cleveland, 571 F. App'x 426, 435 (6th Cir.

2014) (finding dismissal of claims against county sheriff’s department was proper because “as the

district court correctly noted, federal courts have held that, under Ohio law, a county sheriff's office

is not a legal entity that is capable of being sued”); Bey v. Elmwood Place Police Dep't, No.

1:16cv823, 2017 WL 3821456, at *4 (S.D. Ohio Sept. 1, 2017) (agreeing that county sheriffs office

“4s not a separate legal entity subject to suit under § 1983” and dismissing claims against it). These

entities are merely subunits of Cuyahoga County. They do not have a separate legal existence. As

a consequence, Plaintiff's claims against these entities fail as a matter of law.

To the extent the Court can liberally construe the claims against these Defendants as asserted

against Cuyahoga, Plaintiff still fails to state claim. Counties and other bodies of local government

may be sued pursuant to 42 U.S.C. § 1983 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.’ ” City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988) (quoting Monell

v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978)). The United States Court of

Appeals for the Sixth Circuit has held that a Plaintiff may show the existence of a policy or custom

leading to the alleged violation by identifying the following: “ ‘(1) the municipality’s legislative

enactments or official policies; (2) actions taken by officials with final decision-making authority;

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(3) a policy of inadequate training or supervision; or (4) a custom of tolerance or acquiescence of

federal violations.’ ” Winkler v. Madison Cty., 893 F.3d 877, 901 (6th Cir. 2018) (quoting Baynes

v. Cleland, 799 F.3d 600, 621 (6th Cir. 2015) ). Here, Plaintiff claims Lawler confiscated legal

papers as part of a subpoena, Lawler confiscated his mattress, his caseworker did not respond

promptly to his request for mental health services, and conditions at the jail are objectionable. He

does not allege facts suggesting any of these situations was the result of a custom or policy of

Cuyahoga County.

Furthermore, Plaintiff does not allege facts suggesting Pinkney, Mills, Ivey or Budish were

personally involved in the actions alleged in the Complaint. Plaintiff cannot establish the liability

of any Defendant absent a clear showing that the Defendant was personally involved in the activities

which form the basis of the alleged unconstitutional behavior. Rizzo v. Goode, 423 U.S. 362, 371

(1976); Mullins v. Hainesworth, No. 95-3186, 1995 WL 559381 (6th Cir. Sept. 20, 1995). The

Complaint simply contains no facts which reasonably associate these defendants to any of the claims

set forth by the Plaintiff.

Plaintiff lists two claims against McNeeley. First, he states “I complained to medical about

my physical pains derived from sleeping ona concrete slab and received no medical attention (Emily

McNeeley - I.T. Administrator).” (ECF No. 1 at 4). Second, he contends inmates threatening

suicide are stripped naked and placed in isolation cells. He states, “[t]his is the Cuyahoga County

Corrections Center way to deter inmates from requesting mental health (Emily McNeeley).” (ECF

No. 1 at 6). There are no other allegations suggesting how McNeeley was personally involved in

either of these situations.

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Plaintiff includes two possible claims against Lawler. The first claim concerns the taking of

his notes with defense strategies as part of the subpoena. The second claim concerns the taking of

his mattress in retaliation for filing a grievance about the subpoena.

With respect to the taking of his notes, Plaintiff fails to state a claim upon which relief may

be granted. He does not identify a legal cause of action and none is obvious from the face of the

Complaint. Plaintiff contends the subpoena required the officers to take all hand-written notes and

personal papers. His notes qualified as one of those documents. They were returned to him five

days later. To the extent he is attempting to raise a claim for confiscation of property without

procedural due process, he has not stated a claim for relief. In a civil rights action claiming the

deprivation of a property interest without procedural due process, the Plaintiff must plead and prove

that state remedies for redressing the wrong are inadequate. Plaintiff must attack the state’s

corrective procedures as well as the substantive wrong. Macene v. MJW, Inc., 951 F.2d 700, 706

(6th Cir 1991); see Vicory v. Walton, 721 F.2d 1062, 1064 (6th Cir. 1983). As this subpoena appears

to have been issued as part of a state court action, his remedies for challenging the terms of the

subpoena lie in the court that issued the subpoena. Plaintiff could also assert challenges to it in his

criminal case. He has not challenged the adequacy of his state court remedies.

Plaintiff may also be attempting to assert a claim for denial of access to the courts. To state

a claim for denial of access to the courts, Plaintiff must allege particular actions of the Defendant

prevented him from pursuing or caused the rejection of a specific non-frivolous direct appeal, habeas

corpus petition, or civil rights actions. Lewis v. Casey, 518 U.S. 343, 351 (1996). The right of

access to the courts is directly related to an underlying claim, without which a Plaintiff cannot have

suffered injury by being shut out of court.” Christopher v. Harbury, 536 U.S. 403, 415 (2002).

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Plaintiff does not allege he suffered the injury of being denied the ability to litigate a case. He was

not denied access to the courts.

To the extent he may be attempting to claim he was denied due process in his criminal case,

he must raise that claim in criminal court. He cannot collaterally attack an on-going state court

proceeding in a civil rights action in federal court.

That leaves Plaintiff's claim for retaliation against Lawler. Retaliation, though it is not

expressly referred to in the Constitution, is actionable because retaliatory actions may tend to chill

an individual’s exercise of First Amendment rights. Perry v. Sindermann, 408 U.S. 593, 597 (1972).

To state a prima facie case for retaliation prohibited by the First Amendment, Plaintiff must

establish: 1) he engaged in protected conduct; 2) an adverse action was taken against him that would

deter a person of ordinary firmness from continuing to engage in that conduct; and 3) that a causal

connection exists between the first two elements. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

1999). Here, Plaintiff states he filed a grievance against Lawler for taking his notes, Lawler took

his mattress forcing him to sleep on the concrete slab for two days. At the pleading stage, those

allegations are sufficient to state a plausible claim for retaliation.

Conclusion

Accordingly, Plaintiffs claims against the Cuyahoga County Sheriffs Department, Pinkney,

the Cuyahoga County Corrections Center, Mills, Ivey, Buddish, and McNeeley are dismissed

pursuant to 28 U.S.C. §1915(e). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an

appeal from this decision could not be taken in good faith.’ This action shall proceed solely against

1 28 U.S.C. § 1915(a)(3) provides:

(continued...)

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Lawler on Plaintiffs retaliation claim. The Clerk’s Office is directed to forward the appropriate

documents to the U.S. Marshal for service of process and shall include a copy of this order in the

documents to be served upon the Defendant.

IT IS SO ORDERED.

DONALD C. NUGEN

UNITED STATES DISTRICT JUDGE

Dated: Ot4oby LI LO/4

'(...continued)

An appeal may not be taken in forma pauperis if the trial court certifies that it is not

taken in good faith.

‘Re