Sailor v. City of Cleveland

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

RU-EL SAILOR, ) CASE NO. 1:20CV660

)

Plaintiff, ) SENIOR JUDGE

) CHRISTOPHER A. BOYKO

vs. )

)

CITY OF CLEVELAND, et al., ) OPINION AND ORDER

)

Defendant. )

CHRISTOPHER A. BOYKO, SR. J.:

Before the Court is Defendant City of Cleveland’s Motion for Judgment on the Pleadings

(Doc. 14). The City argues that Plaintiff Ru-el Sailor has not stated a plausible claim for

municipal liability under Monell v. Dept. of Soc. Servs., 463 U.S. 658 (1978). The Court agrees

and therefore GRANTS the City’s Motion. And although Plaintiff improperly requested leave to

file an amended Complaint, the Court authorizes Plaintiff to file a Motion for Leave to file an

Amended Complaint by October 14, 2021.

I. BACKGROUND FACTS

In 2003, Plaintiff was convicted for the murder of Omar Clark. However, that conviction

was wrongful. And in March of 2018, the State of Ohio vacated the conviction and released

Plaintiff from prison. Plaintiff primarily blames the individual police officers for their role in

procuring his wrongful conviction. Accordingly, he filed this lawsuit against eight of those

officers for their respective roles in the ‘investigation’ (the “Defendant Officers”).

But Plaintiff also seeks to hold the City liable for the acts of its officers. According to

Plaintiff, the City had a policy that allowed officers to obtain wrongful convictions via a myriad

of ways. While these policies were not written, Plaintiff alleges they have been in place since

the 1960s and 1970s. And because of these policies, the Defendant Officers could violate

Plaintiff’s constitutional rights.

The City disagrees and claims that the Complaint fails to state a claim against the City as

a matter of law. (Doc. 14). Plaintiff opposed (Doc. 23) and the City replied thereafter (Doc. 25).

Plaintiff then requested leave to file a Sur-Reply, which the Court granted. (Docs. 26, 26-1 &

Non-Doc. Entry 7/27/2021).

II. LAW & ANALYSIS

A. 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). In this jurisdiction,

[t]he standard of review for a judgment on the pleadings is the same

as that for a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6)…We construe the complaint in the light most favorable to

the plaintiff, accept all of the complaint’s factual allegations as true,

and determine whether the plaintiff undoubtedly can prove no set of

facts in support of the claims that would entitle relief.

Roger Miller Music, Inc. v. Sony/ATV Publishing, LLC, 477 F.3d 383, 389 (6th Cir. 2007)

(citations omitted). The court need not accept as true legal conclusions or unwarranted factual

inferences. Lewis v. ACB Bus. Servs., 135 F.3d 389, 405 (6th Cir. 1998).

The pleading does not have to demonstrate probability; rather, “just enough factual

information to create an expectation that discovery will uncover evidence supporting the claim.”

Haber v. Rabin, 2016 WL 3217869, at *3 (N.D. Ohio June 10, 2016) (citing Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 556 (2007)). In other words, the complaint must state a plausible

claim for relief. “Plausibility is a context-specific inquiry, and the allegations in the complaint

must ‘permit the court to infer more than the mere possibility of misconduct,’ namely, that the

pleader has ‘shown’ entitlement to relief.” Center for Bio-Ethical Reform, Inc. v. Napolitano,

648 F.3d 365, 369 (6th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). While

Twombly and Iqbal have set this plausibility standard, the Sixth Circuit “has cautioned against

reading ‘Twombly and Iqbal so narrowly as to be the death of notice pleading…’” Rhodes v. R

& L Carriers, Inc., 491 Fed. App’x 579, 583 (6th Cir. Aug. 6, 2012) (quoting Keys v. Humana,

Inc., 684 F.3d 605, 609 (6th Cir. 2012)). “If a reasonable court can draw the necessary inference

from the factual material stated in the complaint, the plausibility standard has been satisfied.”

Keys, 684 F.3d at 610.

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, 489-90 (6th Cir. 1990). Lastly,

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 Serv. Comm’n,

946 F.2d 1233, 1235 (6th Cir. 1991).

B. Monell Standard

A city 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, 694 (1978). To adequately plead

a claim for municipal liability under Monell, Plaintiffs must “identify the policy, connect the

policy to the entity itself and show that the particular injury was incurred because of the

execution of that policy.” Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir. 1993).

There are four types of municipal action that, if they cause the underlying constitutional

violation, can demonstrate that the municipality had an unlawful policy or custom: “(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 violations.” Jackson v. City of Cleveland, 925 F.3d 793, 828 (6th Cir. 2019) (quoting

Burgess v. Fischer, 735 F.3d 462, 478 (6th Cir. 2013)).

Monell claims are not subjected to a higher pleading standard. Leatherman v. Tarrant

Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). Rather, the

plausibility standard of Twombly and Iqbal discussed above applies. Bailey v. City of Ann Arbor,

860 F.3d 382, 388-89 (6th Cir. 2017). However, the broad assertion that an unconstitutional

policy exists “is nothing more than a bare recitation of legal standards” and is insufficient.

Brown v. Cuyahoga Cty., 517 Fed. App’x 431, 436 (6th Cir. Mar. 15, 2013); see also Burgess,

735 F.3d at 478 (failure to point to a pattern of a custom or prior unconstitutional conduct

subjects it to dismissal).

Based on Plaintiff’s briefing, he clearly believes that he adequately pled each of the four

potential bases for municipal liability under Monell. The Court disagrees. Really Plaintiff relies

on an unwritten custom that was so wide-spread and well-established, that it essentially became

the City’s policy. However, as discussed below, this argument fails to support a claim that a

custom of constitutional rights violation existed at the time of Plaintiff’s investigation.

C. Plaintiff’s Complaint

Plaintiff alleges that he fell victim to a widespread and clear policy whereby “officers

regularly used unconstitutional measures to falsely implicate criminal suspects, including by

withholding and/or suppressing exculpatory evidence, fabricating evidence, feeding information

to witnesses, engaging in unduly suggestive identification and lineup procedures, and engaging

in leading, coercive and unduly suggestive questioning of and contact with witnesses.” (Doc. 1,

PageID: 19, ¶ 148). This policy existed for over 30 years — “as far back as the 1970s and

continued through the time of the investigation and prosecution of Plaintiff.” (Id. at ¶ 149). In

essence then, Plaintiff alleges that, for a continuous 30-year period, the City of Cleveland and its

police department maintained an unwritten policy to “pursue wrongful convictions[.]” (Id. at

PageID: 29, ¶ 179).

In supporting these allegations, Plaintiff neither cites a specific legislative enactment nor

police department policy. Nor does he name a specific policymaker or official with final

decision-making authority. And finally, Plaintiff does not discuss a specific inadequate training

program or manual.

Instead, Plaintiff relies on unwritten, “widespread, clear and persistent patterns and

practices” that have essentially become official policies, sanctioned by a ‘senior-clique’ of

policymakers within the Cleveland Department of Police. These unconstitutional practices were

so well-known and widespread that the City should have implemented better training instead of

merely acquiescing to the policies’ existence.

Plaintiff is correct in that a custom of tolerating civil rights violations may demonstrate

municipal policy. Bd. of Cty. Comm’r of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997); Meyers

v. City of Cincinnati, 14 F.3d 1115, 1120 (6th Cir. 1994). But the custom must be so “extensive

as to still be attributable to the municipality as a whole.” Lipman v. Budish, 974 F.3d 726, 748

(6th Cir. 2020); Brown, 520 U.S. at 404 (the relevant custom “is so widespread as to have the

force of law”); Phillips v. City of Cincinnati, 479 F. Supp. 3d 611, 634 (S.D. Ohio 2020) (a city’s

custom that may form the basis of liability in a § 1983 claim must “be so permanent and well

settled as to constitute a custom or usage with the force of law”). This typically entails a

showing that a “clear and persistent pattern of unlawful activity” existed and “that [the city]

tacitly approved” the activity. Howse v. Hodus, 953 F.3d 402, 411 (6th Cir. 2020).

Plaintiff has failed to allege an extensive, widespread and well-settled custom supported

with sufficient facts to show a clear and persistent pattern of unlawful activity approved by the

City. Plaintiff starts with evidence from the 1960s and 1970s — a Public Administration Service

Report on the Cleveland Division of Police (1966); an autobiography of Mayor Carl Stokes

(1973); a Cleveland Crime Commission Report (1974); and a Cleveland Foundation Report

(1975). (Doc. 1, ¶¶ 160(a)-(b), 154(a)-(f), 159 and 155(a)-(d)). But even giving Plaintiff the

benefit of the doubt that this evidence starts the unlawful policy alleged here, Plaintiff does not

allege sufficient facts to plausibly demonstrate that the unlawful policy continued for 30 years.

If the custom were so widespread and pervasive as Plaintiff alleges, the Court would expect

specifics cited from the ensuing three decades.

Perhaps in an attempt to show the continuation of the ‘60s and ‘70s policy, Plaintiff

provides undated and unnamed allegations:

165. For example, despite having knowledge of news reports and

complaints against a detective for false testimony and

beating confessions out of detainees, the City failed to

investigate or take disciplinary action against the involved

officer.

166. In another case, a CDP officer attempted to report a fellow

officer’s fabrication of evidence and use of excessive force

in shooting a young woman, and Internal Affairs ruled the

complaint not substantiated and took no action against the

officer who engaged in misconduct.

167. This same officer witnessed years of repeated misconduct by

his fellow officers, indicative of a pattern, practice, custom,

and policy of such misconduct. The officer was aware of

other officers conducting interrogations of suspects where

officers punched suspects in the face and head, knocking

them down, in efforts to get those suspects to confess or

implicate others. When physically beating these people, the

officers would say things along the lines of “Now you’re

going to tell us the truth.”

168. When this officer attempted to notify superiors in the CDP

of the wrongful conduct described above, he was either

reprimanded or told not to pursue the claims of misconduct

any further.

169. At all times relevant to this Complaint, policymakers for the

City and the CDP knew of these problems and allowed them

to continue, even though the need for legitimate mechanism

for new or different policies, training, oversight or

punishment of officers was obvious. The constitutional

violations complained of by Plaintiff were a highly

predictable consequence of the failure to have such

mechanisms in place.

(Doc. 1, PageID: 26, ¶¶s 165-69).

Again, the lack of specificity in these allegations (even assuming they are relevant to

Plaintiff’s allegations1) make it impossible to discern the plausibility of Plaintiff’s claim. These

allegations could have occurred after the investigation of Plaintiff, which would be improper to

support Plaintiff’s theory. See Wright v. City of Euclid, 962 F.3d 852, 881 n.1 (6th Cir. 2020)

(certain instances of unconstitutional behavior “cannot establish that the Euclid Police

Department had a track record of excessive force at the time of [Plaintiff’s] constitutional injury

because they all occurred after the incident with Plaintiff”) (emphasis added). Even if the Court

could reasonably infer a pattern based on this evidence, it does not support the claim that the

same custom has existed unabated since the 1960s and 1970s until the investigation of Plaintiff.

1 For example, Plaintiff neither alleges that the Defendant Officers used excessive force nor beat confessions out of

witnesses during their investigation of the Clark murder.

As a final attempt to save his Complaint, Plaintiff relies on evidence of a ‘code of

silence’ that existed within the Cleveland Department of Police. (See Doc. 1, ¶¶ 138, 174 &

175).2 While allegations of a ‘code of silence’ may support a Monell claim against a

municipality, see Spearman v. Elizondo, 230 F. Supp. 3d 888 (N.D. Ill. 2016), those allegations

must include sufficient facts to buttress the claim. See Goldwire v. City of Philadelphia, 130 F.

Supp. 3d 936, 944-45 (E.D. Pa. 2015) (“while allegations regarding a ‘code of silence’ among

police officers may support a Monell claim, here, the only factual allegation is that there is, and

has been, a ‘code of silence’ among police officers to conceal unconstitutional conduct, and that

alone is not enough”). Otherwise, a term such as ‘code of silence’ is insufficiently detailed to

state a Monell claim against a municipality. Sampson v. City of Cleveland, 2020 WL 7238427,

*3 (N.D. Ohio Aug. 20, 2020). Unlike Spearman, where the plaintiff buttressed her allegation of

code of silence with six specific and date allegations, 230 F. Supp. 3d at 892, Plaintiff here does

not support his code of silence allegations with any detailed facts. Instead, Plaintiff relies on the

evidence of the unnamed officer discussed above in Complaint paragraphs 166, 167 and 168.

These allegations cannot support the code of silence claim for the same reason they cannot

support the overarching policy to procure wrongful convictions.

Plaintiff also relies on the Sixth Circuit’s decision in Jackson to support his argument that

his factual allegations are sufficient to state a claim for relief under Monell. In doing so, Plaintiff

argues that “the Sixth Circuit…has already acknowledged that evidence exists to support a

Monell claim against the City of Cleveland…for the same types of misconduct at issue in this

case.” (Doc. 23, PageID: 206). This Court is intimately familiar with the Jackson case. But

2 Essentially, Plaintiff alleges that the Defendant Officers maintained a code of silence, refused to report on one

another, and knew that other officers would not report on their own misdeeds. Because of this, Defendant Officer’s

felt secure to violate Plaintiff’s civil rights.

Plaintiff’s case is not Jackson. Three main differences are worth highlighting. First, the Jackson

case stemmed from an investigation that occurred in 1975. Jackson, 925 F.3d at 803-05. As has

been the emphasis throughout this Opinion, the investigation and prosecution of Plaintiff

occurred in 2004 — nearly 30 years later.

Second, not once does the Jackson court cite any of the evidence that Plaintiff relies on

here — Mayor Stokes’ autobiography, the Cleveland Foundation Report, the Cleveland Crime

Commission Report, or the Public Services Report. This is more eye-opening considering the

investigation of Mr. Jackson occurred during the same period as this evidence was published.

Finally — and most importantly — the Jackson court focused on a specific policy that

allegedly violated Mr. Jackson’s rights, that being General Police Order 19-73. Jackson, 925

F.3d at 829. After contextualizing GPO 19-73 with other contemporaneous evidence — the

Cleveland Police Manual (1975) and Ohio Rule of Criminal Procedure (1975) — the Jackson

court concluded that together, the specific rules “could be understood to authorize Cleveland

officers to withhold exculpatory witness statements from prosecutors” and allowed the matter to

proceed to the jury. Id. at 834. Here, Plaintiff attacks no specific policy. Instead, he recites

lengthy paragraphs regurgitating Monell standards for liability. These sorts of conclusory

allegations cannot support a Monell claim against the City.

The case of Osberry v. Slusher, 750 Fed. App’x 385 (6th Cir. Sept. 13, 2018) is

instructive. In Osberry, the Sixth Circuit ultimately allowed a complaint to proceed under a

Monell theory against a police chief and the City of Lima. Osberry, 750 Fed. App’x at 398. The

Osberry court however was skeptical — it accepted the plaintiff’s allegations of six prior, similar

instances in the past five years, and ultimately found these allegations sufficient. Id. But unlike

Osberry, Plaintiff here has not provided any specifics to support his claims. The nearest piece of

evidence timewise is 30 years prior. Because of this, the Court cannot test the plausibility of

Plaintiff’s allegations.

Accordingly, Plaintiff’s Complaint fails to state a plausible claim for relief under Monell

against the City of Cleveland.

D. Plaintiff’s Request for Leave to File an Amended Complaint

Twice at the very end of Plaintiff’s briefing, he makes the following request: “should the

Court find any deficiency in Plaintiff’s complaint, Plaintiff asks that the Court grant him leave to

file an amended complaint.” (Doc. 23, PageID: 219; Doc. 26-1, PageID: 243). Plaintiff has not

filed a formal Motion for Leave to Amend on the docket.

“Requesting leave to amend under Federal Rule of Civil Procedure 15(a) is governed by

Rule 7(b), which requires that a motion shall state with particularity the grounds therefor.”

Evans v. Pearson Eters., 434 F.3d 839, 853 (6th Cir. 2006) (citations omitted). This remains true

even though courts “should freely give leave to amend when justice so requires.” Fed. R. Civ. P.

15(a)(2); see also Patterson v. Novartis Pharms. Corp., 451 Fed. App’x 495, 499 (6th Cir. Aug.

23, 2011). The Sixth Circuit has held numerous times that a party does not make a particular

request by requesting leave to amend as an aside in opposition to a dispositive motion. Begala v.

PNC Bank, 214 F.3d 776, 784 (6th Cir. 2000) (“What plaintiffs may have stated, almost as an

aside, to the district court in a memorandum in opposition to the defendant’s motion to dismiss

is…not a motion to amend”); Evans, 434 F.3d at 853 (a single sentence request leave to amend

in an opposition to a motion to dismiss did not provide grounds nor a proposed amendment and

therefore not stated with particularity); Patterson, 451 Fed. App’x at 499 (the mention of the

possibility to amend in the last line in the opposition brief is not a sufficiently particular request).

Based on the above, Plaintiff’s request to amend is improper. However, the Court will

afford Plaintiff the chance to amend his Complaint given the Court’s narrow ruling herein.

Therefore, if Plaintiff desires to amend his Complaint against the City, he shall file a Motion for

Leave to Amend the Complaint by October 14, 2021 with an attached Amended Complaint. The

Motion for Leave to Amend must state with particularity the reasons why the Court should grant

relief. The City shall then have fourteen days from the date of filing to file an Opposition. If the

City does file an Opposition, Plaintiff shall have seven days to file a Reply.

III. CONCLUSION

“Monell is a case about responsibility.” Pembaur v. City of Cincinnati, 475 U.S. 469,

478 (1986). To allow Plaintiff’s Complaint to proceed as drafted would subject the City of

Cleveland to a theory of liability just because it employed Defendant Officers. The Supreme

Court has consistently rejected this application of respondeat superior in this context. Monell,

436 U.S. at 691; Brown, 520 U.S. at 403 (“We have consistently refused to hold municipalities

liable under a theory of respondeat superior”) (collecting cases). The Court does the same here.

Accordingly, the Court GRANTS the City’s Motion for Judgment on the Pleadings. (Doc.

14). And as discussed above, Plaintiff shall have until October 14, 2021 to file a Motion for

Leave to Amend the Complaint.

IT IS SO ORDERED.

s/ Christopher A. Boyko

CHRISTOPHER A. BOYKO

Senior United States District Judge

Dated: September 30, 2021