Hogan v. City of Parma, Ohio

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KATHLEEN HOGAN, as Administrator ) CASENO.: 1:20-CV-1331

of the Estate of Jonathan H. Legg, deceased, _)

)

Plaintiff, ) JUDGE DONALD C. NUGENT

V. )

)

CITY OF PARMA, OHIO, et al., ) MEMORANDUM OPINION

) AND ORDER

Defendants. )

This matter is before the Court on Defendants, City of Parma Heights, Ohio (“Defendant

Parma Heights”) and Officer Luke Berry’s (“Defendant Berry”) (collectively, the “Parma

Heights Defendants”) Motion for Judgment on the Pleadings (ECF #12) and Defendants, Officer

Peter Shepetiak (“Defendant Shepetiak”) and City of Parma’s (“Defendant Parma”)

(collectively, the “Parma Defendants”) Motion for Judgment on the Pleadings (ECF #20). For

the reasons that follow, Defendants’ Motions are granted in part and denied in part.

I. FACTUAL BACKGROUND’

In her Complaint, Plaintiff Kathleen Hogan (“Ms. Hogan” or “Plaintiff’) asserts three

causes of action against all Defendants: (1) unreasonable searches and seizures and excessive

force under the Fourth and/or Fourteenth Amendments, pursuant to 42 U.S.C. § 1983 (Count

One); (2) wrongful death under O.R.C. § 2125.02 (Count Two); and, (3) violation of Title II of

The facts as stated in this Memorandum and Order are taken from the Complaint and should not be construed

as findings of this Court. The Court notes that Defendants’ Motions raises a question of fact outside Plaintiff’s

Complaint. For purposes of these briefings and pursuant to Fed.R.Civ.P. 12(b)(6) and 12(c), 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 favor of the plaintiff. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6" Cir. 2007).

the Americans with Disabilities Act (the “ADA”) (Count Three). (Complaint, ECF #1 at {J 47-

52).

Plaintiff's claims are based upon an incident that occurred on June 20, 2018, when

Decedent, Jonathan H. Legg (“Decedent”), a 29-year-old-man with Asperger’s syndrome, was

pulled over by Parma police officer, Defendant Shepetiak. Ud. at | 21). Plaintiff's Complaint

summarizes the alleged events of the evening as follows:

Defendant Shepetiak pulled Jonathan’s car over because Shepetiak had

entered Jonathan’s license plate number into the Mobile Data Terminal in

Shepetiak’s police cruiser and discovered it was registered for use with a

different vehicle. /d. at § 21). Defendant Shepetiak also pulled Jonathan’s car

over because Shepetiak though Jonathan “had a fixed stare toward him and

sunk down in the driver’s seat while passing by.” (/d. at J 23). Defendant

Shepetiak approached the front passenger’s window of Jonathan’s car to

introduce himself and tell Jonathan the reason for the stop. Ud. at J 24).

Jonathan offered papers to Defendant Shepetiak, including E-check

documents, and tried to explain why the plate on his car did not match. (/d. at |

25).

Defendant Shepetiak asked Jonathan to search the car and Jonathan

agreed. (Id. at J 26). Defendant Shepetiak moved to the driver’s side of

Jonathan’s car and noticed that Defendant Berry was also present at the scene.

(Id. at § 27). On his own accord, Defendant Berry, a detective for the Parma

Heights Police Department, had stopped unannounced in his unmarked police

car behind Defendant Shepetiak’s police vehicle. (/d. at § 28). Defendant Berry

was wearing a white shirt, red tie, black dress pants, and black dress shoes and

was not in a police uniform. (/d. at 29).

Per Defendant Shepetiak’s request, Jonathan Legg exited his car via the

front driver’s side door. (Id. at | 30). A witness who was passing by the

stopped vehicles, indicated she saw Defendant Shepetiak and Jonathan Legg

moving toward the rear of Jonathan’s car in a “still and calm” manner. (Jd. at f

31). Defendant Berry moved from the passenger side of Jonathan’s car to the

driver’s side of the car. (Jd. at J 32). As Defendant Shepetiak and Jonathan

were standing near the rear of Jonathan’s car, Defendant Berry spotted a

handgun in Jonathan’s waistband and started yelling things like “Show your

hands” and “don’t reach for that.” Defendant Berry also shouted “Gun.” (/d. at

49 33-34).

Defendant Shepetiak heard these shouts, panicked, and immediately

grabbed Jonathan, tried to wrap him up, and thrown [sic] him to the ground in

a hip toss. During this action instigated by Defendants Berry and Shepetiak,

Jonathan’s gun discharged. (Ud. at §] 35-36). Defendant Shepetiak and

Defendant Berry then started shooting at Jonathan Legg. Jonathan Legg was

shot multiple times by Defendants and experienced severe pain and was

conscious after the shooting for a period of time. (/d. at JJ 37-38). Jonathan

Legg was eventually transported by ambulance to a hospital where he was

pronounced dead as a result of gunshot wounds to his back, buttock, and

extremities with skeletal and visceral injuries. (/d. at J 40).

With respect to Decedent’s alleged disability, Ms. Hogan asserts that Defendants

Shepetiak and Berry “incorrectly perceived Jonathan’s autistic difficulties, behavior, and

mannerisms as suspicious behavior and consequently escalated this routine traffic stop to a

situation where the officers panicked, overreacted, used excessive force, violated Jonathan’s

rights, and shot and killed him.” (/d. at § 5). She also argues that Defendants should be held

liable because “policies, practices, customs and usages of Defendant City of Parma and

Defendant City of Parma Heights regarding the interaction of officers with autistic persons

and/or others with mental disorders were the moving force behind the use of force and

proximately caused Jonathan Legg’s suffering and death.” (/d. at | 41). Plaintiff further

summarizes her allegations as follows:

Defendant City of Parma and Defendant City of Parma Heights failed to

adequately train and supervise the officers to properly manage interactions

with autistic citizens in order to minimize the use of force during such

interactions. By failing to adequately train and supervise officers to properly

manage interactions with autistic citizens, the City of Parma and the City of

Parma Heights acted with deliberate indifference to the health, safety and

rights of autistic citizens, including Jonathan Legg. The failure to train and

supervise officers to properly manage interactions with autistic citizens was a

moving force behind the excessive force used on Jonathan Legg and

proximately caused his suffering and death. (/d. at {J 43-44).

In their respective Motions for Judgment on the Pleadings (ECF #12 and #20), Defendants

Parma Heights and Parma both argue that Plaintiff fails to assert any cognizable cause of action

and therefore dismissal of her Complaint is appropriate. Plaintiff has opposed both Motions

(ECF #18 and #22) and Defendants have filed replies. (ECF #19 and #23). The Motions are now

fully briefed and ready for decision.

II. STANDARD OF REVIEW

The standard of review used by a district court to rule on a motion for judgment on the

pleadings pursuant to Fed. R. Civ. P. 12(c) is the same as the standard used to rule on Rule

12(b)(6) motions. See Grindstaff v. Green, 133 F.3d 416, 421 (6" Cir. 1998). A motion to

dismiss under Fed. R. Civ. P. 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. 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 favor of the plaintiff. See Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6™ Cir. 2007).

The court will not, however, accept conclusions of law or unwarranted inferences cast in the

form of factual allegations. See Gregory v. Shelby County, 220 F.3d 433, 446 (6" Cir. 2000).

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

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

of the elements of a cause of action. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-556, 127

S. Ct. 1955, 1964-65 (2007). That is, “[flactual 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, 502 F.3d 545, 2007 WL 2768285 at *2 (6" Cir. 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 the case

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

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

Ill. DISCUSSION

a. Plaintiff's Claims Under 42 U.S.C. § 1983 and Qualified Immunity

i. Defendants Berry and Shepetiak

Section 1983 is not itself a source of substantive rights but provides “a method for

vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94, 109

S. Ct. 104 L. Ed. 2d 443. Thus, to establish a claim under § 1983, a plaintiff must “identify a

right secured by the United States Constitution and deprivation of that right by a person acting

under color of state law.” Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6™ Cir. 1992). Here,

Plaintiff alleges that “Defendants, under color of state law, deprived Decedent of rights,

privileges and amenities secured by the United States Constitution by the Fourth or Fourteenth

Amendments, including the prohibition on unreasonable searches and seizures and to be free of

excessive force.” (ECF #1 at { 48).

While § 1983 permits recovery against public officials who violated an individual’s civil

rights, these officials are often entitled to qualified immunity from individual liability for

damages. See Jones v. City of Cincinnati, 2006 U.S. Dist. LEXIS 75430, at *17. “Government

officials performing discretionary functions generally are shielded from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Qualified immunity is “an immunity from suit rather than a mere defense to

liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Here, Defendants invoke this

protection, arguing their conduct on June 20, 2018 is shielded by qualified immunity and so they

are immune from Plaintiff's suit.

“The protection of qualified immunity applies regardless of whether the government

official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of

law and fact.” Pearson v. Callahan, 555 U.S. 223, at 231 (2009) (internal citations omitted).

“Qualified immunity attaches when an official’s conduct ‘does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Mullenix v.

Luna, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015), citing Pearson v. Callahan, 555 U.S. 223,

242, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). The application of qualified immunity is

determined as a matter of law, not as a matter of fact. Garvie v. Jackson, 845 F.2d 647, 649 (6

Cir. 1988).

Qualified immunity under federal law is applied using a two-part test. First, courts must

determine whether the alleged acts violate a constitutional right. Second, the court must

determine whether at the time of the actions, the constitutional right is “clearly established.”

Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). A right is clearly

established if “[t]he contours of the right [are] sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640,

107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987).

The relevant inquiry is “whether it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). The

determination must be based on what a reasonable officer would believe or understand under the

circumstances given what was known to the officer at the time. White v. Pauly, 137 S.Ct. 548,

550, 196 L. Ed. 2d 463 (2017); Kingsley v. Hendrickson, 576 U.S. 389, 135 S. Ct. 2466, 2474,

192 L. Ed. 2d 416 (2015); Fox v. DeSoto, 489 F.3d 227 at 236 (6" Cir. 2007). The standard is

objective, and must not be applied using hindsight unavailable to the officers at the time the

actions were taken. Jd. Once a defendant has shown that he was acting within his discretionary

authority, the plaintiff bears the burden of proving that he is not entitled to qualified immunity.

Wegener y. Covington, 933 F.2d 390, 392 (6 Cir. 1991).

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

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 (6" Cir. 2016) (internal citations omitted).

Indeed, the Sixth Circuit has held that although “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 (6" Cir.

2015) (internal citations omitted).

As set forth above, Plaintiff alleges Defendants deprived Decedent of his rights,

privileges and immunities under the Fourth and Fourteenth Amendments when they used

unreasonable and excessive force against Decedent and directly and proximately caused his

injuries and death. In response, Defendants argue their conduct was reasonable under the

circumstances and that there is no language in the Fourth or Fourteenth Amendment that bars

police officers from protecting themselves. City and Cnty. Of San Francisco v. Sheehan, 135 S.

Ct. 1765, 1775 (2015).

The Supreme Court has interpreted the Fourth Amendment, which guarantees citizens the

right “to be secure in their persons...against unreasonable seizures,” as providing the right to be

free from excessive force. Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L.Ed. 2d 443

(1989). Courts must therefore analyze claims that law enforcement officers have used excessive

force in the course of an arrest using the Fourth Amendment’s “reasonableness” standard. Jd. at

395. The reasonableness test is not capable of mechanical application but requires careful

application of the facts of the case, including “the severity of the crime at issue, whether the

suspect poses an immediate threat to the safety of the officers or others, and whether he is

actively resisting arrest or attempting to evade arrest by flight.” Jd. at 396. In other words, a

court must “ask whether the officer’s action, in light of the totality of the circumstances, were

objectively reasonable.” Kostrzewa v. City of Troy, 247 F.3d 633, 639 (6" Cir. 20010) (reversing

the district court’s ruling that granted defendants’ motion to dismiss, finding that the complaint

stated a legally sufficient claim of excessive force and the officers were not entitled to qualified

immunity).

Because the amount of force that is reasonable in a seizure depends on a variety of

circumstances, and because those circumstances may change throughout the course of a seizure,

the Sixth Circuit analyzes excessive force claims in segments. See, e.g., Dickerson v. McClellan,

101 F.Ed 1151, 1161 (6" Cir. 1996). Here, Defendants’ argue their conduct during the June 20,

2018 traffic stop was justifiable self-defense based on their allegation that Decedent retrieved his

gun from his waistband, pointed it at Detective Berry and began shooting, facts not contained in

Plaintiff's Complaint. Defendants contend they perceived a legitimate threat to their safety and

thus their conduct was reasonable under the circumstances.

While Defendants’ argument may contradict Plaintiff's claim, the Court cannot find at

this stage that they have met their burden of demonstrating that Plaintiff can prove no set of facts

in support of her claim that the officers violated Decedent’s constitutional rights. When the

allegations as alleged by Plaintiff in the Complaint are taken to be true, there remains a question

of fact as to whether Defendants’ actions constituted excessive force in violation of the U.S.

Constitution. Based on her Complaint, the Court concludes Plaintiff sufficiently pleads facts to

support a § 1983 claim against Defendants Berry and Shepetiak and that her allegations may be

better assessed by the Court following discovery.

b. Defendants Parma Heights and Parma

Plaintiff alleges Defendants Parma Heights and Parma should also be held liable under

42 U.S.C. § 1983. As a rule, local governments may not be sued under § 1983 for an injury

inflicted solely by employees or agents under a theory of respondeat superior. See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). “Instead, it is

when the execution of a government’s policy or custom...inflicts the injury that the government

as an entity is responsible under § 1983.” Id. at 694; DePiero v. City of Macedonia, 180 F.3d

770, 786 (6" Cir. 1999); see also Graham v. County of Washtenaw, 358 F.3d 377, 382 (6" Cir.

2004) (to prove municipal liability the city must be responsible for a constitutional violation).

Moreover, the policy or custom must be the moving force of the constitutional violation in order

to establish municipal liability. Monell, 436 U.S. at 690.

Liability against a municipality is available under multiple theories. See id. at 660-61 (an

express municipal policy); City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 99

L. Ed. 2d 107 (1988) (a “widespread practice that, although not authorized by written law or

express municipal policy, is ‘so permanent and well settled as to constitute a custom or usage’

with the force of law”); City of Canton v. Harris, 489 U.S. 378, 390, 109 S. Ct. 1197, 103 L. Ed.

2d 412 (1989) (a failure to act where the “inadequacy [of the existing practice is] so likely to

result in the violation of constitutional rights, that the policymaker...can reasonably be said to

have been deliberately indifferent to the [plaintiffs rights]”); Leach v. Shelby County Sheriff,

891 F.2d 1241, 1247 (6" Cir. 1989) (a ratification of a municipal employee’s unconstitutional

acts by failing to meaningfully investigate and punish allegations of unconstitutional conduct).

When an action is brought under 42 U.S.C. § 1983 against a municipality, plaintiff must

show that, due to its deliberate conduct, the municipality was the “moving force” behind the

injury alleged. Wright v. City of Euclid, Ohio, 962 F.3d 852, 879 (6™ Cir. 2020) citing Allman v.

Reed, 703 F.3d 887, 903 (6" Cir. 2013). This requires plaintiff to demonstrate that “the

municipality had a ‘policy or custom’ that caused the violation of his rights.” Jd. at 880 quoting

Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L.Ed. 2d 611. To state a

cause of action, a plaintiff must demonstrate “(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 violation.” Id.; see Jackson v. City of

Cleveland, 925 F.3d 793, 828 (6" Cir. 2019). To properly plead a claim premised on inadequate

training, the Supreme Court has held that “inadequacy of police training may serve as the basis

for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights

of persons with whom the police come into contact.” City of Canton, Ohio v. Harris, 489 U.S.

378, 388, 109 S. Ct. 1197, 103 L-Ed.2d 412 (1989).

Here, Plaintiff alleges that Defendants Parma Heights and Parma’s “policies, practices,

customs and usages” regarding the interaction of officers with autistic persons and/or others with

mental health disorders were the moving force behind the use of excessive force and ultimate

death of Decedent. (ECF #1 at 41, 44). Plaintiff further alleges that its failure to train its

officers resulted in deliberate indifference to the health, safety and rights of autistic citizens,

including Jonathan Legg. (ECF #1 at 44). Defendants argue Plaintiff's claim fails as a matter of

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law because she does not sufficiently allege a policy or practice that resulted in a violation of

Decedent’s constitutional rights. On a motion brought under Fed. R. Civ. P. 12(c), the Court’s

role is to determine whether Plaintiff's Complaint sufficiently alleges a plausible cause of action.

Taking the allegations in her Complaint as true, Plaintiff sufficiently pleads a cause of action.

Therefore, dismissal at this stage in the litigation is not appropriate.

c. Wrongful Death Under O.R.C. § 2125.02

In Count Two of her Complaint, Plaintiff alleges Defendants are liable for Decedent’s

death under Ohio Revised Code § 2125.02, which provides a statutory right of action for

wrongful death to be brought in the name of the personal representative of a decedent. A

wrongful death action in Ohio has three elements: “(1) the existence of a duty owing to the

plaintiff's decedent, (2) a breach of that duty, and (3) proximate causation between the breach of

the duty and the death.” Thompson v. Wing, 70 Ohio St. 3d 176, 184, 1994 Ohio 358, 637 N.E.2d

917 (Ohio 1994); see also Ohio Rev. Code Ann. § 2125.01. Wrongful death claims serve to

compensate a decedent’s beneficiaries for the injuries they suffered as a result of the wrongful

death. Peters v. Columbus Steel Castings Co., 115 Ohio St. 3d 134, 137, 2007 Ohio 4787, 873

N.E.2d 1258 (Ohio 2007).

Defendants argue they are entitled to judgment on Plaintiff's wrongful death claim

pursuant to Ohio’s statutory immunity statute, O.R.C. § 2744.03, which provides limited

immunity to political subdivisions and their employees so long as the employees did not act

“with malicious purpose, in bad faith, or in a wanton or reckless manner.” Ohio Rev. Code §

2744.03. With respect to Defendants Berry and Shepetiak, O.R.C. § 2744.03 provides that

individual political subdivision employees can be liable for: “(1) acts or omissions [] manifestly

outside the scope of the employees’ responsibilities; (2) acts or omissions [done] with malicious

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purpose, in bad faith, or in a wanton or reckless manner,” and (3) where civil liability is

expressly imposed by the Revised Code. O.R.C. § 2744.03(A)(6).

Plaintiff alleges Defendants Berry and Shepetiak’s actions were objectively unreasonable

when they shot Decedent several times without affording him with adequate time to respond to

Defendant Berry’s commands and, these actions proximately caused his injuries and death.

Plaintiff also alleges that Defendants Parma Heights and Parma should be found liable for

objectively unreasonable, wanton and/or reckless conduct. Ms. Hogan asserts that Decedent’s

wrongful death has resulted in recoverable damages for his surviving family members and next

of kin, pursuant to O.R.C. § 2125.02. The Court finds, when taking Plaintiff's allegations as true,

the Complaint sufficiently pleads facts that create a plausible claim for relief against Defendants.

d. Americans with Disabilities Act

Finally, in Count Three of her Complaint, Plaintiff alleges Defendants’ conduct on June

20, 2018 violated Title II of the Americans with Disabilities Act (ECF #1 at 52). Specifically,

Plaintiff alleges Defendants were not adequately trained to interact with autistic citizens and that

Defendants “intentionally discriminated against Jonathan Legg or failed to provide him with a

reasonable accommodation when they used unnecessary and excessive force against him because

of his disability...” (/d.).

Title II of the ADA 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.” 42 U.S.C. § 12132. To demonstrate a prima facie case under Title JI of the ADA, a

plaintiff must establish that “(1) he has a disability; (2) he is otherwise qualified; and (3) he is

being excluded from participation in, being denied the benefits of, or being subjected to

12

discrimination under the program solely because of [his] disability.” Jones v. City of Monroe,

341 F.3d 474, 477 (6" Cir. 2003).

There is limited case law in the Sixth Circuit addressing whether or how Title II of the

ADA might apply while effectuating an arrest or investigation. Where courts have determined

that the ADA does apply, they have developed two main theories of potential liability: a

“wrongful arrest” theory and a “reasonable accommodation” theory. Scozzari v. City of Clare,

2009 U.S. Dist. LEXIS 139762. A “wrongful arrest” claim generally arises when police officers

have “wrongfully arrested someone with a disability because they misperceived the effects of

that disability as criminal activity.” Gohler v. Enright, 186 F.3d 1216, 1220 (10% Cir. 1999). See,

e.g., Jackson v. Inhabitants of Town of Sanford, No. 94-12-P-H, 1994 U.S. Dist. LEXIS 15367,

1994 WL 589617 (D. Me. Sept. 23, 2994). A “reasonable accommodation” claim arises when

police officers do not reasonably accommodate a plaintiffs disability during the course of an

investigation or an arrest. See, e.g., McCray v. City of Dothan, 169 F. Supp. 2d 1260 (M.D. Ala.

2001), aff'd in part, rev’d in part on other grounds, 67 Fed. Appx. 582, 2003 WL 23518420 (11"

Cir. 2003).

The Sixth Circuit has discussed Title II’s broad scope, noting that the phrase “services,

programs or activities” encompasses virtually everything that a public entity does.” Johnson v.

City of Saline, 151 F.3d 564. 569 (6™ Cir. 1998). However, the Sixth Circuit has also noted that

claims under Title II of the ADA do require a showing of intentional discrimination. See Dillery

v. City of Sandusky, 398 F.3d 562 (6" Cir. 2005), see also. Tucker v. Tennessee, 539 F.3d 526,

532 (6th Cir. 2008) (where the court noted “the plaintiff must show that the discrimination was

intentionally directed toward him or her in particular.”). Here, Plaintiff does not allege that

Decedent was intentionally discriminated against solely because of his alleged disability. Even

13

construing the Complaint in the light most favorable to the Plaintiff, there are insufficient

allegations to set forth a plausible claim against Defendants under the ADA.

IV. CONCLUSION

For the reasons set forth above, Defendants City of Parma Heights, Ohio and Luke

Berry’s Motion for Judgement on the Pleadings (ECF #12) and Defendants Officer Shepetiak

and City of Parma’s Motion for Judgment on the Pleadings (ECF #20) are granted in part and

denied in part. Count Three of Plaintiff's Complaint is dismissed. Counts One and Two remain.

IT IS SO ORDERED. nub

DONALD C. fl :

Senior United States District Judge

DATED: (Msn If 3020

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