Roarty-Nugent v. Cuyahoga County

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL ROARTY-NUGENT, ) CASE NO. = 1:20 CV 1025

) JUDGE DONALD C. NUGENT

Plaintiff, )

v. □ MEMORANDUM OPINION

) AND ORDER

CUYAHOGA COUNTY, ef al., )

Defendants.

This matter is before the Court on the Motion of Defendant Eric Ivey to dismiss all of the

claims asserted against him in his individual capacity for failure to state a claim pursuant to Fed.

R. Civ. P. 12(b)(6). (ECF #14)

Factual and Procedural Background

Plaintiff, Michael Roarty-Nugent, filed this action against Defendants Cuyahoga County,

and several Cuyahoga County executives; officials and corrections officers in their individual

capacities including Eric Ivey. Plaintiffs claims arise out of events that happened on April 4,

2018, when Plaintiff was an inmate in the Cuyahoga County Corrections Center (““CCCC” or the

“Jail”). The Complaint identifies Defendant Ivey as “the jail’s warden from 2017 until February

2019 when he was demoted to associate warden over an alleged nepotism violation. He resigned

in the fall of 2019 after pleading guilty to falsification and obstruction of justice related to the

death of an inmate at the jail. At all times relevant, he was responsible for the jail’s operation

and acting under color of state law.” (Complaint, ECF #1-1 at ] 16) Plaintiff's Complaint asserts

twenty causes of action against the various Defendants. Only Counts 17 and 18 are asserted

against Defendant Eric Ivey and the other “Policymaking Defendants.” Count 17 is entitled

“Fourteenth Amendment Violation Under 42 U.S.C. § 1983 for Deliberative Indifference/Failure

to Train and Supervise Corrections Officers and Personnel Within the Jail (against Defendants

Budish, Leiken, Taylor, Pinkney, Mills, and Ivey). (ECF #1-1, p. 86) Count 18 is entitled Civil

Liability for Criminal Acts Under R.C. 2307.60(A)(1) (Against Defendants Budish, Leiken,

Taylor, Pinkney, Mills and Ivey). (ECF #1-1 at p. 89)

Plaintiff alleges that on April 4, 2018, Defendant Corrections Officer Johnson was

passing out breakfast trays and that when Plaintiff stepped forward to take the tray, Officer

Johnson slammed the cell door. Plaintiff states that his foot was in the way of the cell door and

he reached out to stop the door from closing on his foot. (ECF #1-1, 9 41) Officer Johnson

allegedly accused Plaintiff of disrespecting her or trying to strike her and called Defendant

Corporal Boardman. (Id. 942-43) Following that call two Special Response Team officers,

Defendants Smith and Graham, came to Plaintiffs cell. Defendants Smith and Graham

instructed Plaintiff to bundle his belongings into his bed sheet and then handcuffed Plaintiff.

Defendant Boardman arrived as Plaintiff was being escorted from his cell. Plaintiff alleges that

Defendant Smith repeatedly pushed Plaintiff into the wall on the way to the elevator and told

him to do something and to stop resisting even though Plaintiff states that he did not resist and

complied with all commands. (Id. 48-49) After they exited the elevator on the 6" floor,

Plaintiff identifies Defendants Armond Budish, the Cuyahoga County Executive, Earl

Leiken, the County Executive’s Chief of Staff, George Taylor, Interim Director of

Cuyahoga County Jails, Kenneth Mills, Cuyahoga County’s Director of Regional

Corrections until he resigned in November 2018, and Eric Ivey, Warden of CCCC from

2017 until February 2019, as the “Policymaking Defendants.” See Complaint, 724.

Counts 17 and 18 are also asserted against Clifford Pinkney, the Cuyahoga County

Sheriff until August 2019.

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Plaintiff states that Defendant Smith slammed him to the floor face down, while he was still

handcuffed, and began kicking him all over his body, including his genitals. Plaintiff asserts that

Defendants Boardman, Smith and Graham all actively participated in the beating. Plaintiff

alleges that one or more of the corrections officers bent his legs toward his back while holding

his handcuffed hands behind his back and that Defendant Smith sprayed an excessive amount of

pepper foam all over his face from just a few inches away for three to five seconds. Plaintiff

states that he has asthma and felt like he could not breathe through the pepper foam which was

all over his mouth and nose. While he was coughing and struggling to breath, and asking for

help, none of the corrections officers standing around offered help. (Id. J] 54-58)

Plaintiff was strapped into a restraint chair while his face was covered in burning pepper

foam. The chair was wheeled to a utility closet that was called the “slop room.” In that room he

was read the “O.C. Administrative Warning” and Plaintiffs face was briefly splashed with water

three times. Plaintiff asked for more water but was denied. Plaintiff states that the water made

the burning pain in his eyes worse and complained that his skin was burning. The corrections

officers told him if he needed to spit to spit on his shirt. Plaintiff states that he told the officers

that he could not breathe, but that Defendant Boardman told him that if he could talk, he could

breathe. (Id. J] 61-66) Next, Plaintiffs restraint chair was wheeled to the medical dispensary

where the medical staff loosened the restraints and wiped Plaintiff's eyes, which he claimed did

not stop the burning. (Id. 68) After the brief stop in the medical dispensary, Plaintiff's restraint

chair was placed into a freezing cold wait room for approximately four hours. Plaintiff was wet,

cold, hurting and struggling to breathe and repeatedly called out for help which did not come.

(Id. ]]69-70)

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Following his time in the “wait room,” Plaintiff spent 11 days in disciplinary isolation or

“the hole” where Defendants Boardman, Smith and Graham came to his cell and allegedly

threatened Plaintiff, telling him that he could not hit a female officer or touch any of Defendant

Boardman’s officers. Defendant Boardman allegedly told Plaintiff that they “would come in the

middle of the night and finish the job” and “beat his ass.” Plaintiff states that he was not

permitted to take a shower for about one day and his clothes were confiscated, leaving him to

spend his time in isolation in his underwear. (Id. [J 71-75)

The Complaint further alleges that Defendants Johnson, Smith and Graham filed

“materially false” reports to justify the attack on Plaintiff and that the County destroyed the

evidence of its employees’ conduct and interfered with Plaintiffs efforts to collect evidence.

Specifically, Plaintiffs pepper foam and water covered clothes were confiscated; the jail only

produced body worn camera footage that began after Plaintiff was sprayed and was laying

handcuffed on the ground and claimed that it did not have surveillance footage of the

interactions between Plaintiff and the Defendant officers, despite the presence of wall mounted

cameras throughout the jail. (Id. J] 96-108)

The Complaint details the findings of the United States Marshals Service from its

investigation of the jail in October-November 2018 as well as the Cuyahoga County Inspector

General’s report which strongly concurred with the Marshals Report, noting that the Inspector

General sent a referral memorandum and his February 12, 2019 report to the Ohio Attorney

General to refer the matter for prosecution. (Id. {J 109-140) Thereafter, the Complaint details

acts of punitive violence and use of pepper spray against a number of inmates and describes how

the County allegedly engaged in racially disparate decontamination practices. (Id. J] 141-323)

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Plaintiff alleges that under Defendants Mills and Ivey, there was a widespread belief

among the corrections officers that jail management retaliated against employees who report

misconduct and that the corrections officers retaliated against inmates who complained. (Id.

Plaintiff also alleges that the “Policymaking Defendants,” including Ivey, were the moving force

in creating conditions in which the use of excessive force prevails. (Id. 438) Defendants Ivey and

Mills were responsible for reviewing the use-of-force incident reports to ensure compliance with

jail policy. (Id.f 39) It was Defendant Ivey’s official policy for staff to avoid using their body-

worn cameras as the written policy required in order to avoid creating footage that would aid or

assist victims in making their claims against the County and jail. (Id. J] 497-498) Defendants

Smith, Graham and Boardman followed Mr. Ivey’s policy and failed to record their attack on

Plaintiff, “making it Plaintiff's word against a slew of corrections staff as to what was said and

done during those moments.” (Id. | 497)

Standard of Review

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) allows a defendant

to test the legal sufficiency of a complaint without being subject to discovery. See Yuhasz v.

Brush Wellman, Inc., 341 F.3d 559, 566 (6" Cir. Ohio 2003). In evaluating a motion to dismiss,

the court must construe the complaint in the light most favorable to the plaintiff, accept its

factual allegations as true, and draw reasonable inferences in favorable of the plaintiff. See

Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6" Cir. Ky. 2007). The court will not, however,

accept conclusions of law or unwarranted inferences cast in the form of factual allegations. See

Twombly, 550 U.S. at 555; Gregory v. Shelby County, 220 F.3d 433, 446 (6" Cir. Tenn. 2000).

In order to survive a motion to dismiss, a complaint must provide the grounds of the entitlement

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to relief, which requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action. Bell Atl. Corp. v. Twombly, 127 8. Ct. 1955, 1964-65 (2007).

That is, “[f]actual allegations must be enough to raise a right to relief above the speculative

level, on the assumption that all the allegations in the complaint are true (even if doubtful in

fact).” Jd. (internal citation omitted); see Association of Cleveland Fire Fighters v. City of

Cleveland, No. 06-3823, 2007 WL 2768285, at *2 (6" Cir. Ohio Sept. 25, 2007) (recognizing

that the Supreme Court “disavowed the oft-quoted Rule 12(b)(6) standard of Conley v. Gibson,

355 US. 41, 45-46, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957)”). Accordingly, the claims set forth in a

complaint must be plausible, rather than conceivable. See Twombly, 127 S. Ct. at 1974.

On a motion brought under Rule 12(b)(6), the court’s inquiry is limited to the content of

the complaint, although matters of public record, orders, items appearing in the record of the

case, and exhibits attached to the complaint may also be taken into account. Amini v. Oberlin

College, 259 F.3d 493, 502 (6" Cir. Ohio 2001).

Discussion

Defendant Ivey moves to dismiss both of the claims asserted against him. Mr. Ivey argues

that he is entitled to qualified immunity on Plaintiffs § 1983 claim and that Plaintiffs claim

under R.C. 2307(A)(1) is barred by the statute of limitations.

A.§ 1983 Claim

Plaintiff's seventeenth claim alleges a violation under § 1983 for deliberate

indifference/failure to train and supervise corrections officers and personnel within the jail

against the policymaking defendants, including Defendant Ivey. Mr. Ivey contends that the

§1983 claim must be dismissed against him because he is entitled to qualified immunity.

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“[Q]ualified immunity shields officials from civil liability if their conduct ‘does not

violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Richmond v. Huq, 885 F.3d 928, 947 (6th Cir. 2018) (quoting Pearson v.

Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). To survive a motion to

dismiss on qualified immunity grounds, the complaint must allege facts that “plausibly mak[e]

out a claim that the defendant’s conduct violated a constitutional right that was clearly

established law at the time, such that a reasonable officer would have known that his conduct

violated that right.” Johnson v. Moseley, 790 F.3d 649, 653 (6th Cir. 2015). The complaint must

also allege with particularity “facts that demonstrate what each defendant did to violate the

asserted constitutional right.” Heyne v. Metro Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir.

2011)(internal citations and quotation marks omitted). “The test is whether, reading the

complaint in the light most favorable to the plaintiff, it is plausible that an official’s acts violated

the plaintiffs clearly established constitutional right.” Heyne, 655 F.3d at 562-63.

Thus, to determine whether qualified immunity applies in a given case, we use a two-step

analysis: (1) viewing the facts in the light most favorable to the plaintiff, we determine whether

the allegations give rise to a constitutional violation; and (2) we assess whether the right was

clearly established at the time of the incident. Campbell v. City of Springboro, Ohio, 700 F.3d

779, 786 (6th Cir. Ohio 2012); see also Saucier v. Katz, 533 U.S. 194, 201 (2001). We can

consider these steps in any order. Pearson v. Callahan, 555 U.S, 223, 236 (2009).

The Sixth Circuit has recognized that while “insubstantial claims against government

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officials should be resolved as early in the litigation as possible,” “it is generally inappropriate

for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified immunity.”

Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016)(internal citations omitted).

Indeed, the Sixth Circuit has held “an officer’s entitlement to qualified immunity is a threshold

question to be resolved at the earliest possible point, that point is usually summary judgment and

not dismissal under Rule 12.” Wesley v. Campbell, 779 F.3d 421, 433-434 (6th Cir.

2015)(internal citations omitted).

1. Plaintiff's allegations give rise to a constitutional violation

To establish personal liability under § 1983, a Plaintiff must show that “the official,

acting under color of state law, caused the deprivation of a federal right.” Kentucky v. Graham,

473 U.S. 159, 166 (1985); Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (because there is no

vicarious liability in § 1983 suits, a plaintiff must plead that each government defendant,

“through the official’s own actions, has violated the Constitution.”) Thus, in order to state an

individual capacity claim against a government official, “a complaint must allege that the

defendants were personally involved in the alleged deprivation of federal rights.” Fluker v.

Cuyahoga Cty, No. 1:19 CV 318, 2019 WL 3718619 at *6 (N.D. Ohio Aug. 7, 2019) citing

Frazier v. Michigan, 41 F.App’x 762, 764 (6™ Cir. 2002). “A supervisory official’s failure to

supervise, control or train the offending individual is not actionable unless the supervisor either

encouraged the specific incident of misconduct or in some other way directly participated in it.”

Peatross v. City of Memphis, 818 F.3d 233, 241 (6™ Cir. 2016) citing Shehee v. Luttrell, 199

F.3d 295, 300 (6 Cir. 1999)(emphasis added). The Sixth Circuit has interpreted this standard

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“to mean that ‘at a minimum,’ the plaintiff must show that the [supervisory] defendant ‘at least

implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the

offending officers.’” Jd. Additionally, there must also be a “causal connection between the

defendant’s wrongful conduct and the violation alleged.” /d. at 242. This requires a plaintiff to

demonstrate that a supervisor’s conduct “could be reasonably expected to give rise to just the

sort of injuries that occurred.” Campbell v. City of Springboro, 700 F.3d 790 (6" Cir. 2012).

Two Sixth Circuit cases are instructive as to the pleading requirements to establishment

acquiescence in a subordinates unconstitutional conduct. In Coley v. City of Lucas Cty, 799 F.3d

530 (2015), the family of a prisoner who died after a police officer put him in a chokehold

sought to hold the sheriff, James Telb, personally liable for his subordinates’ conduct. The court

of appeals found that the plaintiff had sufficiently alleged that Telb knowingly acquiesced in the

officer’s conduct where the Complaint stated that Telb had a duty to train and supervise sheriff

department employees to avoid use of excessive force; that Telb failed to train and supervise

staff regarding the proper use of force, including on the specific use of chokeholds; that Telb

failed to properly investigate use of excessive force; and that Telb help to cover up the

subordinates unconstitutional actions by deliberately making false statements to federal officials.

Id. at 542. In Peatross, which involved a police shooting, the family of the decedent sought to

hold the Director of the Memphis Police Department, Toney Armstrong, liable as a supervisor.

818 F.3d at 236-37. The Complaint alleged, that Armstrong “failed to train and supervise the

officers to avoid the use of excessive force, failed to investigate the allegations of excessive

force properly, and attempted to cover-up the unconstitutional conduct of his subordinates by

exonerating the officers in an effort to escape liability.” Jd. at 243. The allegations in Peatross,

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however, went one-step further than Coley, alleging that there had been fifty-four police

shootings in the previous five years and that, despite Director Armstrong's acknowledgment of

“a dire need to review and improve the police department's operations” and “its disciplinary

process” no improvements were made. Id.

In his motion to dismiss, Defendant Ivey does not address whether Plaintiff adequately

pled an excessive force claim against Mr. Ivey’s subordinates, apparently assuming for the

purposes of his motion that such a claim was adequately pled. Plaintiff took the extra step to

describe why the complaint asserted a plausible claim for excessive force in violation of the

Fourteenth Amendment against Mr. Ivey’s subordinates Smith, Graham and Boardman. Thus,

for the purposes of this analysis, the Court will assume that the Complaint adequately pleads an

excessive force claim against Mr. Ivey’s subordinates and move directly to the issue of whether

the complaint alleged facts to state a plausible claim for supervisory liability based on Mr. Ivey’s

failure to train, supervise and investigate.

Plaintiff argues that as was the case in Peatross, he has alleged facts demonstrating that

Mr. Ivey failed to train and supervise the officers involved in this action regarding their use of

force, failed to properly investigate excessive force incidents and instructed his officers not to

use their body cameras during use of force incidents in order to cover up the incidents to help

derail potential lawsuits. He has also set forth prior use excessive use of force incidents at the jail

and has alleged that Mr. Ivey’s instructions regarding the use of body cameras and his

overlooking the use of excessive force “at least implicitly authorized, approved or knowingly

acquiesced in the unconstitutional conduct.” Peatross, 818 F.3d at 242, citing Sheehee, 199 F.3d

at 300.

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Further, under the reasoning in Peatross, Plaintiff has sufficiently alleged a causal

connection between Mr. Ivey’s conduct and the excessive force violation inflicted upon him by

the corrections officers. Plaintiff has alleged that it was Mr. Ivey’s job to review the use of force

reports to ensure compliance with jail policy. As such, Mr. Ivey knew that the use of force

incidents at the jail were increasing. Indeed, the complaint specifically references several prior

use of force incidents that occurred during Mr. Ivey’s time as warden. Further, the complaint

alleges that staff understood that jail management retaliated against employees who report

misconduct and that the corrections officers retaliated against inmates who complained. In the

face of these issues, Mr. Ivey compounded the problem by instructing officers not to use their

body cameras while engaging in physical confrontations. Based upon the rising incidents of

violence, Mr. Ivey’s instructions and his rubber stamping of use of force the reports, Plaintiff's

injuries here were forseeable. See Peatross, 818 F.3d at 244 (causal connection established

where plaintiff alleged that Chief was involved in creating and enforcing department policies,

did not punish officer use of excessive force, failed to take action in face of growing use of

excessive force by officers and ‘rubber stamped’ officer misconduct.) Accordingly, Plaintiffs

complaint plausibly alleges a claim of supervisor liability.

2. Was the Constitutional right clearly established?

In determining this second element of the qualified immunity test in a situation involving

supervisor liability, the court first examines whether the right the subordinate officers violated

was Clearly established. As noted above, the Court is assuming for purposes of this motion, that

the complaint adequately alleges an excessive force claim in violation of the Fourteenth

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Amendment by Mr. Ivey’s subordinates Boardman, Smith and Graham. At the time of the

incident at issue here, it was clearly established that the Eighth Amendment (as applied to state

governments by the Fourteenth Amendment) prohibits corrections officers from inflicting

unnecessary and wanton pain upon inmates. William v. Curtin, 631 F.3d 380, 383 (6" Cir. 2011).

Specifically, courts have found a constitutional violation when an inmate was gratuitously

assaulted while fully restrained and subdued. Pelfrey v. Chambers, 43 F.3d 1034, 1037 (6" Cir.

1993). Thus, prisoners, such as Plaintiff, had a clearly established right not to be assaulted while

| fully restrained well before April 4, 2018.

Moreover, before April 4, 2018, it was clearly established law in the Sixth Circuit that

jail officials could be held liable in supervisory liability claims for their subordinates’ use of

excessive force against inmates. Coley, 700 F.3d 530, 541-542 (6" Cir. 2015). Thus, Mr. Ivey

should have been aware of his potential supervisory liability for his subordinates’ actions in this

instance.

As such, Mr. Ivey is not entitled to qualified immunity on Count 17 at this time.

B. Civil Liability for Criminal Acts under R.C. 2307.60(A)(1)

Count 18 of the Complaint purports to assert a claim against Defendants Budish, Leiken,

Taylor, Pinkney, Mills and Ivey for civil liability for criminal acts under R. C. 2307.60(A)(1).

Ohio Rev. Code § 2307.60(A)(1) provides, “Anyone injured in person or property by a criminal

act has, and may recover full damages in, a civil action unless specifically excepted by law, may

recover the costs of maintaining the civil action and attorney’s fees if authorized by any

provision of the Rules of Civil Procedure or another section of the Revised Code or under the

common law of this state, and may recover punitive or exemplary damages if authorized by

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section 2315.21 or another section of the Revised Code.”

“TC]laims brought under O.R.C. § 2307.60(A)(1) are subject to a one-year statute of

limitations, because the statute “‘contemplates a penalty.’” Marquardt v. Carlton, Case No. 1:18

CV 333, 2019 U.S. Dist. LEXIS 58402, *6-7 (N.D. Ohio Apr. 2, 2019)(citing State ex rel. Cty.

of Cuyahoga v. Jones Lang Lasalle Great Lakes Co., 2017 Ohio 7227, 131 (8" Dist. Ohio Ct.

App. 2017); Gray v. Newman, 2008 Ohio 1076, 26 (8th Dist. Ohio Ct. App. 2008)); see also

Steinbrick v. Cleveland Elec. Illuminating Co., Case No. 66036, 1994 Ohio App. LEXIS 3756,

*5 (8 Dist. Ohio Ct. App. 1994)). The criminal conduct alleged in the Complaint occurred on

April 4, 2018. Plaintiff's Complaint in this case was filed on May 11, 2020. Accordingly,

Plaintiffs claim for Civil Liability for Criminal Acts is barred by the one-year statute of

limitations.

Conclusion

For the reasons stated above, Mr. Ivey’s Motion to Dismiss (ECF #14) is granted in part

and denied in part. The motion to dismiss is denied as to Count 17 and granted as to Count 18.

IT IS SO ORDERED.

United States District Judge

DATED: Att nde [5 L020