The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN B. HARRISON, ) CASE NO. 1:19CV2328
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Plaintiff, ) JUDGE CHRISTOPHER A. BOYKO
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vs. )
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CITY OF CLEVELAND, ET AL., ) OPINION AND ORDER
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Defendants. )
CHRISTOPHER A. BOYKO, J:
This matter is before the Court on Defendant City of Cleveland’s Motion for Judgment
on the Pleadings. (ECF # 10). For the following reasons, the Court grants, in part, and denies, in
part, Defendant’s Motion.
According to Plaintiff’s Complaint, Plaintiff’s decedent, Jesus Malave Morales
(“Morales”) was jailed on October 5, 2017. When Morales arrived at the jail, staff failed to
conduct adequate medical and mental health screenings. Shortly thereafter, Morales hanged
himself in his cell and died six days later. Defendants Alan Furtado (“Furtado”) and Elizabeth
Hester (“Hester”) were the supervisors on duty when Morales arrived at the jail.
Defendants Kristina Vargo (“Vargo”) and Charles Stephens, Jr. (“Stephens”), along with
Does 1-10, completed an abbreviated booking and screening process, resulting in their failure to
properly screen Morales for medical or mental health histories. They also failed to capture his
acute distress and suicidal ideation and failed to document their own observations of Morales.
This was a serious failure given Morales’ history of untreated mental health issues and suicide
attempts.
Morales interacted at his booking with Defendant Charles Brown (“Brown”), who failed
to document Morales’ severe psychological symptoms as did Defendant Timothy Holt (“Holt”),
who escorted Morales from the cell phone cell to cell #8. Furtado and Hester failed to document
or disclose Morales’ psychological symptoms to the next shift’s supervisors.
Prisoners who witnessed Morales’ suicide screamed for the guards to come aid Morales
when they saw him tie a sheet around his neck but the guards did not immediately move to stop
Morales. Defendants Brown and Kevin Boll (“Boll”) delayed giving life saving aid. Once they
arrived at his cell and found him unconscious, they attempted to revive him with a defibrilator
but the device failed to work properly.
Instead of preserving as evidence the sheet Morales used to hang himself, the guards had
it taken to laundry. After the fact, Defendants conspired to give false, incomplete and
misleading reports of the incident to cover up their misconduct.
Plaintiff’s Complaint alleges at Count One a violation of Morales’ Fifth and Fourteenth
Amendment Due Process and Equal Protection rights under the United States Constitution
against Defendants Vargo, Stephens, Brown, Holt, Boll, Furtado, Hester, Stottner, Raucher and
Does 1-10, due to Defendants’ deliberate indifference to Morales’ serious medical needs.
Count Two alleges claims against the City of Cleveland for failure to provide Morales
reasonable accommodation for his mental disabilities in violation of the Americans with
Disabilities Act (“ADA’) and Section 504 of the Rehabilitation Act.
Count Three alleges Monell claims against City of Cleveland for its failure to train,
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supervise and discipline its agents; failure to recognize Morales’ suicidal tendencies; failure to
timely refer Morales for his medical needs and failure to place him on suicide watch. Plaintiff
also alleges the constitutional violations were the result of the City of Cleveland’s customs,
practices or policies.
Count Four alleges an Ohio state law claim for Negligence, Willful, Wanton and
Reckless Conduct against the corrections officer defendants.
Count Five alleges an Ohio state law claim for Wrongful Death pursuant to O.R.C. §
2125.02 against all Defendants.
Count Six alleges an Ohio state law claim for Survivorship against all Defendants.
Plaintiff seeks compensatory damages, punitive damages, attorneys’ fees and costs and
unspecified additional relief.
Defendant’s Motion
In its Motion for Judgment on the Pleadings, Defendant City of Cleveland contends it is
entitled to judgment as a matter of law on all claims against it which are Plaintiff’s Second Claim
for Relief (ADA and § 504 Claim); Third Claim for Relief (§ 1983 Monell claim); Fifth Claim
for Relief (Wrongful Death) and Sixth Claim for Relief (Survivorship Action); and moves on
an untitled claim for civil conspiracy.
According to Defendant, Plaintiff’s ADA and Section 504 claim fails to allege that
Morales was denied benefits “by reason of” his disability and it fails to put Defendant on notice
of the benefits allegedly denied. Furthermore, Plaintiff’s Monell claim fails to allege sufficient
facts to make it plausible under federal pleading standards. Plaintiff’s Wrongful Death and
Survivorship claims do not fall under one of the exceptions to Ohio’s political subdivision
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immunity statute. Defendant further contends it is immune from a civil conspiracy claim and is
further entitled to judgment on the claim under the intracorporate conspiracy doctrine.
Lastly, Defendant contends Plaintiff is not entitled to punitive or exemplary damages
against it under Ohio law.
LAW AND ANALYSIS
Standard of Review
After the pleadings are closed but within such time as not to delay the trial, any party
may move for judgment on the pleadings. Fed. R. Civ. P. 12(c). A motion for judgment on the
pleadings is governed by the same legal standard as a Fed. R. Civ. P. 12(b)(6) motion to dismiss
for failure to state a claim upon which relief may be granted. Almendares v. Palmer, 284
F.Supp. 2d 799, 802 (N.D. Ohio 2003). Therefore, as with a motion to dismiss, the Court must
test the sufficiency of the complaint and determine whether “accepting the allegations in the
complaint as true and construing them liberally in favor of the plaintiff, the complaint fails to
allege ‘enough facts to state a claim for relief that is plausible on its face.’” Ashmus v. Bay Vill.
Sch. Dist. Bd. of Educ., 2007 U.S. Dist. LEXIS 62208 (N.D. Ohio 2007), quoting Bell Atlantic
Corp. v. Twombly, U.S., 127 S.Ct. 1955, 1974 (2007). Claims alleged in the complaint must be
“plausible,” not merely “conceivable.” Id. Dismissal is warranted if the complaint lacks an
allegation as to a necessary element of the claim raised. Craighead v. E.F. Hutton & Co., 899
F.2d 485 (6th Cir. 1990). A Rule 12(c) motion “is granted when no material issue of fact exists
and the party making the motion is entitled to judgment as a matter of law.” Paskvan v. City of
Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1235 (6th Cir. 1991) (emphasis added). A
written instrument attached to a pleading is a part of the pleading for all purposes. Fed. R. Civ. P.
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10(c). “In addition, when a document is referred to in the pleadings and is integral to the claims,
it may be considered without converting a motion to dismiss into one for summary judgment.”
Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335–36 (6th Cir. 2007).
ADA and Rehabilitation Act
“The Americans with Disabilities Act and the Rehabilitation Act combat discrimination
against disabled individuals. Title II of the Americans with Disabilities Act provides that ‘no
qualified individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.’” Gohl v. Livonia Pub. Sch. Sch.
Dist., 836 F.3d 672, 681 (6th Cir. 2016) quoting 42 U.S.C. § 12132. “Section 504 of the
Rehabilitation Act provides that a qualified individual with a disability shall not, ‘solely by
reason of her or his disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal financial
assistance.’” Gohl, 836 F.3d at 681 quoting 29 U.S.C. § 794(a).
To establish a prima facie case of discrimination a plaintiff must demonstrate: (1) he or
she “is disabled under the statutes, (2) is ‘otherwise qualified’ for participation in the program,
and (3) is being excluded from participation in, denied the benefits of, or subjected to
discrimination because of his disability or handicap, and (4) (for the Rehabilitation Act) that the
program receives federal financial assistance.” Gohl, 836 F.3d 682. “Both the Americans with
Disabilities Act and the Rehabilitation Act require the challenged discrimination to occur
because of disability, which is another way of saying that the plaintiff must establish a but-for
relationship between the protested act and the individual’s disability.” Id. citing Univ. of Tex.
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Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 133 S.Ct. 2517, 2527–28 (2013); Lewis v. Humboldt
Acquisition Corp., 681 F.3d 312, 314–15 (6th Cir. 2012) (en banc). “The Americans with
Disabilities Act requires the plaintiff to present sufficiently “significant” evidence of animus
toward the disabled that is a but-for cause of the discriminatory behavior. The Rehabilitation
Act sets the higher bar, requiring plaintiffs to show that the defendant’s acts were done “solely
by reason of” the disability.” Gohl, 836 F.3d at 682. “Apart from [§ 504's] limitation to denials
of benefits ‘solely’ by reason of disability and its reach of only federally funded—as opposed to
‘public’—entities, the reach and requirements of both statutes are precisely the same.” S.S. v. E.
Kentucky Univ., 532 F.3d 445, 452–53 (6th Cir. 2008 quoting Weixel v. Bd. of Educ. of N.Y., 287
F.3d 138, 146 n. 6 (2d Cir.2002). See also Thompson v. Williamson County, 219 F.3d 555, 557
n. 3 (6th Cir.2000) ( recognizing that ADA and § 504 claims may be analyzed together because
both statutes provide the same remedies, procedures, and rights).
The parties do not dispute for purposes of this Motion that Morales was disabled as
defined under the statutes, nor do they dispute Defendant received federal funds. According to
Defendant, Plaintiff’s claims for ADA and Rehabilitation Act violations fail as a matter of law
because Plaintiff’s Complaint fails to allege Morales was denied a benefit due to his disability.
Moreover, these claims fail because they fail to allege sufficient facts to support the claim. In
particular, the Complaint fails to allege what benefits Morales was denied but only makes
general assertions that do not put Defendant on notice of the particular claim.
Plaintiff’s Complaint alleges the following ADA and RA claim.
91. Defendants failed and refused to reasonably accommodate Jesus Malave
Morales’ mental disabilities and to modify their jail facilities, operations,
services, accommodations and programs to reasonably accommodate his
disability, in violation of Title II of the ADA and/or §504, when he was in
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their custody.
A review of Plaintiff’s Complaint reveals Plaintiff does not allege that Morales was
discriminated against, or that he was unable to participate in or receive the benefit of a service,
program, or activity available to other inmates by reason of that disability. Instead, Plaintiff
alleges that Morales did not receive necessary medical treatment, and he alleges that Defendant’s
failure to diagnose or treat him was motivated by a desire to punish him for exercising his right
to petition government.
In analyzing Plaintiff’s ADA and Rehabilitation Act failure to accommodate claim, the
Court holds that it fails to plausibly allege sufficient facts to support such a claim. As Defendant
points out, the claim alleges a number of purported failings: to adequately screen Morales, to
document his condition, to place on suicide watch, to monitor and to contact appropriate medical
personnel. However, nowhere does Plaintiff’s claim allege these denials were due to Morales’
disability. Instead, Plaintiff’s claims concern the failures to diagnose and treat Morales. This is
fatal to Plaintiff’s claim.
“Neither the ADA nor the RA provide a cause of action for inadequate medical care.”
Larson v. Eppinger, No. 2:20-CV-4997, 2020 WL 6392439, at *6 (S.D. Ohio Nov. 2, 2020),
citing Watson v. Mohr, 2:17-cv-457, 2017 WL 6383812, at *5 (S.D. Ohio Dec. 14, 2017).
(“finding that a plaintiff failed to state a claim for relief under the ADA for the denial of medical
treatment where the claim was merely an Eighth Amendment deliberate indifference claim in
another statutory guise, noting that ‘[n]either medical treatment decisions nor medical
malpractice ... may form the basis of a claim under the ADA’”). See also Simmons v. Navajo
Cty., 609 F.3d 1011, 1022 (9th Cir. 2010). (“The ADA prohibits discrimination because of
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disability, not inadequate treatment for disability.”); Bryant v. Madigan, 84 F.3d 246, 249 (7th
Cir. 1996). (“[T]he Act would not be violated by a prison's simply failing to attend to the
medical needs of its disabled prisoners.... The ADA does not create a remedy for medical
malpractice.”).
Claims that person was not properly treated due to a disability rather than mistreated due
to a disability are not cognizable under the ADA and Rehabilitation Act but instead fall under the
Eighth Amendment. See Vick v. Core Civic, 329 F. Supp. 3d 426, 444 (M.D. Tenn. 2018).
(“Indeed, courts routinely dismiss ADA suits by disabled inmates that allege inadequate medical
treatment but do not allege that the inmate was treated differently because of his or her
disability.”). Id at 443.
Because Plaintiff does not allege Defendant denied him benefits due to his disability,
does not allege facts demonstrating he was treated differently than non-disabled detainees and
because his claims go to the adequacy of his diagnosis and treatment, the Court grants
Defendant’s Motion and dismisses Plaintiff’s ADA and Rehabilitation Act claims.
Monell Claims
A city or municipality may only be held liable for the constitutional violations of its
employees under 42 U.S.C. § 1983 if those actions are the result of a practice, policy, or custom
of the municipality itself. Monell v. Department of Social Services, 436 U.S. 658 (1978).
“There are four types of municipal action that, if they cause the underlying constitutional
violation, can establish liability under a Monell claim: 1) legislative enactments or official
policy; 2) actions by officials with final decision-making authority; 3) a policy of inadequate
training or supervision; or 4) a custom of tolerance of rights violations.” France v. Lucas, No.
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1:07CV3519, 2012 WL 5207555, at *12 (N.D. Ohio Oct. 22, 2012), aff'd, 836 F.3d 612 (6th Cir.
2016). “A municipality may be liable under §1983 for failure to train its employees, but only
where such failure reflects a deliberate or conscious choice.” City of Canton v. Harris, 489 U.S.
378 (1989).
Plaintiff’s Complaint alleges the following Monell claim:
a) failing to properly train, supervise, discipline, transfer, monitor, counsel and
otherwise control corrections officers and health care providers; failing to
appropriately and timely identify serious mental health medical issues and needs of
prisoners like Jesus Malave Morales;
b) failing to appropriately recognize suicidal tendencies in prisoners, like Jesus
Malave Morales, despite clear indications of such tendencies;
c) failing to timely refer prisoners like Jesus Malave Morales for appropriate mental
health medical services, despite clear indications of serious need;
d) failing to place prisoners like Jesus Malave Morales on suicide watch even though
known to be suicidal or presenting evidence of suicidal ideation;
e) failing and refusing to adequately and timely communicate critical information
regarding mental health, including risk of suicide;
f) failing and refusing to provide adequate care, treatment and/or supervision for
potentially suicidal prisoners like Jesus Malave Morales;
g) failing and refusing to take adequate preventative measures upon discovery of
suicidal tendencies of prisoners like Jesus Malave Morales;
h) failing and refusing to correct, discipline, and follow up on deficiencies noted in care,
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treatment and/or supervision of prisoners; and/or
i) possessing knowledge of deficiencies in the policies, practices, customs and
procedures concerning prisoners, and approving and/or deliberately turning a blind eye to
these deficiencies.
98. In particular, corrections officers, health care providers, and other employees are not
properly trained in how to intake, screen, identify, refer and/or handle prisoners with
mental health issues, including persons with suicidal tendencies or ideations to avoid
exacerbation of their symptoms and to manage and control the mental and physical health
of prisoners.
According to Defendant, Plaintiff’s Monell claim fails as a matter of law because it does
not sufficiently allege a policy or practice that violated Morales’ constitutional rights. Defendant
contends one instance cannot support a pattern or practice claim.
Plaintiff responds that the Complaint sufficiently describes conduct supporting its Monell
claim, including the failure to train officers on how to intake, screen, identify, refer and/or
handle prisoners with mental health issues, including persons with suicidal tendencies or
ideations to avoid exacerbation of their symptoms and to manage and control the mental and
physical health of prisoners. Plaintiff also asserts “[a] single decision can constitute a policy, if
that decision is made by an official who ‘possesses final authority to establish municipal policy
with respect to the action ordered.’” Flagg v. City of Detroit, 715 F.3d 165, 174 (6th Cir.
2013). “Where action is directed by those who establish government policy, the municipality is
equally responsible whether that action is to be taken only once or to be taken repeatedly.”
Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). “A single incident of harm (without a
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pattern of misconduct) is sufficient to establish liability where the need for more or different
training is so obvious that a plaintiff’s injury is a “highly predictable consequence” of deficient
training.” Connick v. Thompson, 131 S. Ct. 1350, 1361 (2011
On a motion brought under Fed. R. Civ. P 12(c), the court’s role is to determine if the
Complaint alleges a plausible claim. Here, the Court holds applicable federal caselaw supports
the conclusion that a single incident can support a Monell claim for a custom or practice that
violates a plaintiff’s constitutional rights as well as failure to train which results in the same
violations. Furthermore, Plaintiff’s Complaint adequately describes the conduct at issue
regarding Defendants’ deliberate indifference, failures to document, failures to adequately screen
and failure to timely contact medical professionals that violated Morales’ constitutional rights
and alleges such conduct was due to inadequate training or Defendant’s customs and/or policies.
At this stage of the proceedings, these are sufficient allegations to support a Monell claim.
Because the allegations in Plaintiff’s Complaint assert facts that make his Monell claim
plausible, the Court denies Defendant’s Motion for Judgment on Plaintiff’s Monell claim.
Wrongful Death/ Survivorship Claim
Plaintiff’s Fourth Claim for Relief alleges Wrongful Death under Ohio law against
Defendant. The Complaint alleges, “The wrongful death of Jesus Malave Morales was
proximately caused by the neglect, default, and/or willful, wanton, and/or reckless conduct of
the Defendants.” (Complaint ¶110).
Plaintiff’s Fifth Claim for Relief alleges a Survivorship action as follows:
Plaintiff further claims that as a direct and proximate result of the willful, wanton,
reckless, and unconstitutional conduct of the Defendants as alleged herein,
individually and/or jointly, and/or by and through their agents and/or employees,
Jesus Malave Morales was caused to suffer mental anguish and conscious
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physical pain and suffering prior to his death, for which compensation is sought.
(Complaint ¶ 114).
Defendant asserts it is entitled to judgment on both these claims because Ohio’s statutory
immunity statute, O.R.C. § 2744.02, provides a municipality immunity for negligent acts of its
employees and none of the statutory exceptions apply.
Plaintiff responds that employees of a municipality are not immune if their negligent act
was the result of malicious or wanton conduct or bad faith. Moreover, the Defendant’s
indemnification obligations to its employees are not protected by the immunity statute.
Plaintiff concedes that Defendant is a municipality as defined under § 2744.02.and is
entitled to a presumption of immunity unless one of the five exceptions applies. Plaintiff asserts
that § 2744.02B(4) applies because:
Morales died on the grounds of the City’s Jail. His death was due in part to not
being visible to correctional staff—who failed to make rounds to observe him in
his cell, and who failed to respond to the screams of other prisoners. Likewise,
his death was due in part to the fact that the cell he was in contained open bars, to
which he was able to tie his blanket in his attempt to hang himself. The cellblock
set up prevented, without some affirmative action, correctional staff from
adequately observing prisoners to identify problematic behavior and interrupt
any suicide attempt. This constitutes a physical defect,
(Brief in Opposition pg. 11).
Defendant responds that Section B(4) expressly excludes jails from the premises liability
exception to immunity under § 2744.02.
O.R. C. 2744.02 reads in pertinent part as follows:
Except as provided in division (B) of this section, a political subdivision is not
liable in damages in a civil action for injury, death, or loss to person or property
allegedly caused by any act or omission of the political subdivision or an
employee of the political subdivision in connection with a governmental or
proprietary function.
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Plaintiff relies solely on exception B(4) which reads:
(4) Except as otherwise provided in section 3746.24 of the Revised Code,
political subdivisions are liable for injury, death, or loss to person or property that
is caused by the negligence of their employees and that occurs within or on the
grounds of, and is due to physical defects within or on the grounds of, buildings
that are used in connection with the performance of a governmental function,
including, but not limited to, office buildings and courthouses, but not including
jails, places of juvenile detention, workhouses, or any other detention facility, as
defined in section 2921.01 of the Revised Code.
However, as Defendant points out, this section expressly exempts municipalities from
liability for deaths that occur on jail property, which is the case here. Therefore, Plaintiff has
failed to show an exception to immunity for Defendant under § 2744 and the Court grants
Defendant’s Motion for Judgment on Plaintiff’s Wrongful Death and Survivorship claims under
Ohio law.
This does not implicate Defendant’s indemnification obligations or Defendant’s
employees’ liability.
Civil Conspiracy
Defendant asserts it is not liable for civil conspiracy. Plaintiff states he has asserted no
civil conspiracy claim in his Complaint. Therefore, the Court finds Plaintiff’s Complaint does
not plead a civil conspiracy claim.
Attorney Fees and Punitive Damages
According to Defendant, O.R.C. § 2744.05 prohibits the award of punitive and exemplary
damages, including attorney fees, against a municipality for violations of state law.
Furthermore, the United States Supreme Court has held that punitive damages may not be
awarded against a municipality for actions brought under 42 U.S.C. § 1983.
Plaintiff does not oppose Defendant’s motion on punitive damages and the Court finds
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Plaintiff has abandoned this claim. However, Plaintiff does argue it may recover attorney fees
under §1983 should it prevail.
The Court agrees with Plaintiff that, should it prevail on its §1983 claim against
Defendant, 42 U.S.C. § 1988 expressly permits an award of attorneys fees and costs. “ In any
action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986
of this title... the court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney's fee as part of the costs..”
Plaintiff has further requested that, if the Court finds the Complaint is insufficient to
withstand a 12(c) motion for judgment on the pleadings, then the Court should grant them leave
to amend the Complaint. However, the Court follows the Sixth Circuit’s guidance that a plaintiff
must properly file a motion for leave to amend under Fed R. Civ. P. 7(b) and cannot merely
place such a request in a brief in opposition. Prim Capital Corp. v. Pippen, No. 1:09CV561,
2009 WL 2579810, *2 (N.D. Ohio Aug. 19, 2009) (citing Begala v. PNC Bank, Ohio N.A., 214
F.3d 776, 784 (6th Cir. 2000). The policy behind this is that district courts should not stand to
“rescue” plaintiffs from the deficiencies of their complaints by offering leave to amend when
plaintiffs do not properly request leave. Total Benefits Planning Agency, Inc. v. Anthem Blue
Cross and Blue Shield, 552 F.3d 430, 438 (6th Cir. 2008). Similarly here, Defendant has pointed
out the deficiencies of Plaintiff’s Complaint and Plaintiff should not have the benefit of being
rescued by the Court merely because they have now become aware of these deficiencies. The
Court denies the request for leave to amend.
Therefore, for the foregoing reasons, the Court grants, in part Defendant’s Motion for
Judgment on the Pleadings and dismisses Plaintiff’s ADA and Rehabilitation Act, Wrongful
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Death and Survivorship claim against Defendant and its prayer for punitive damages against
Defendant. The Court denies Defendant’s Motion on Plaintiff’s Monell claim and prayer for
attorneys fees and costs.
IT IS SO ORDERED.
Date: November 23, 2020 /s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
Senior United States District Judge
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